Illinois Appellate Court Reports
BAJALO v. NORTHWESTERN UNIVERSITY, 1-05-3175 (Ill.App.
12-15-2006) NEDELJKA BAJALO, Plaintiff-Appellee, v.
NORTHWESTERN UNIVERSITY, Defendant-Appellant. 1-05-3175.
Appellate Court of Illinois, First District. December 15,
2006.
Appeal from the Circuit Court of Cook County, Illinois,
County Department, Law Division, No. 05 L 383 Ronald F.
Bartkowicz, Judge Presiding.
JUSTICE JOSEPH GORDON delivered the opinion of the court:
Plaintiff, Nedeljka Bajalo, brought an action for
retaliatory discharge against defendant, Northwestern
University, predicated upon defendant’s failure to renew
her employment contract. Defendant moved for judgment on
the pleadings on ground that plaintiff failed to state a
cause of action because Illinois law does not recognize a
claim for retaliatory discharge based upon the failure to
renew an expired employment contract. The circuit court
denied defendant’s motion on the pleadings, and certified
the following question for interlocutory appeal (155 Ill.
2d R. 308): “May a contract employee who engaged in
protected whistle blowing activity bring a cause of action
for retaliatory discharge when the employer fails to renew
the employee’s written contract [?]”
I. BACKGROUND
On January 12, 2005, plaintiff filed a complaint stating a
single state-law claim for retaliatory discharge. The
complaint alleges the following pertinent facts. Defendant
is an institution of higher education that engages in
medical research, substantially funded by the federal
government. Some of defendant’s medical research involves
experiments performed on live laboratory animals through its
Center for Comparative Medicine (Center). As such,
defendant must comply with the Federal Animal Welfare Act
(Act) (7 U.S.C. § 2131 et seq. (2002)), which aims
“to insure that `animals intended for use in research
facilities are provided humane care and treatment'” (7
U.S.C. § 2131(1) (2002)). Under the Act, the
Secretary of Agriculture “promulgat[es] standards”
governing the “humane handling, care, treatment, and
transportation of animals by research facilities.” 7
U.S.C. § 2143(a) (2002). As a research facility
falling under the purview of the Act defendant was required
to register with the Secretary of Agriculture (7 U.S.C.
§ 2136 (2002)) and to establish an oversight
committee to ensure that the rules and regulations
promulgated by the Secretary were being enforced (7 U.S.C.
§ 2143(b)(1) (2002)). As a result, defendant
established the Northwestern University Animal Care and Use
Committee (NUACUC) to review and approve “protocols for the
humane care of animals” and “oversee all animal use” at
defendant’s facilities.
The complaint further alleges that plaintiff, a
veterinarian, was hired by defendant on May 1, 2000, to
work for a one-year period as a senior research associate
at defendant’s Center. The complaint alleges that defendant
renewed plaintiff’s appointment for a second one-year
period beginning in May 1, 2001. Defendant renewed
plaintiff’s contract for a third one-year period beginning
May 1, 2002. According to the complaint, plaintiff
performed “all terms, conditions and requirements of her
position in a satisfactory manner.”
The complaint further alleges that beginning in September
2001, plaintiff became concerned with “billing
irregularities” and improper laboratory procedures which
she believed jeopardized the health and welfare of the
animals, as well as the quality of research being performed
at the Center. For the next two years, plaintiff continued
to address these concerns, inter alia, to members of the
NUACUC committee, her supervisors, her department chair,
the vice president of research, the director of finances
and administration, inspectors of the United States
Department of Agriculture, and defendant’s provost.
According to the complaint, on January 9, 2003, plaintiff
received a letter of insubordination from her supervisor.
On January 29, 2003, plaintiff informed the United States
Department of Health and the National Institute of Health,
in writing, of her concerns regarding animal care and
caretaker safety in defendant’s laboratories. On February
6, 2003, defendant informed plaintiff that it would not
renew her written contract when it expired on April 30,
2003. The complaint further alleges that on the same day
defendant “terminated” plaintiff by telling her that she
should not return to the Center or either campus of
defendant for the remainder of her appointment. Moreover,
according to the complaint, in July 2003, plaintiff was
offered a position in defendant’s gastroenterology
laboratory, but defendant’s human resources department
denied the laboratory’s request to employ plaintiff and
informed the laboratory that the Center would not “grant
plaintiff any access to [its] animal care facility.”
The complaint alleges that plaintiff was discharged from
her employment in retaliation for exercising her rights
under the federal Animal Welfare Act. The complaint
specifically alleges that plaintiff was discharged because
she reported alleged violations of the Act to her
supervisors, to the United States Department of Agriculture
and to the National Institute of Health. Some of the
alleged violations that plaintiff reported included
inadequate training of laboratory personnel and lack of
available medicine to relieve the unnecessary pain
inflicted on research animals. 9 C.F.R. §§
2.32(a), (b), (c)(1) through (c)(4) (1994). According to
the complaint, under the Animal Welfare Act:
“Training and instruction of personnel must include
guidance in at least the following areas [m]ethods
whereby deficiencies in animal care and treatment are
reported, including deficiencies in animal care and
treatment reported by an employee of the facility. No
facility employee, committee member, or laboratory
personnel shall be discriminated against or be subject to
any reprisal for reporting violations of any regulation
or standards under the Act. 9 C.F.R. § 2.32(c)(4).”
On April 1, 2005, defendant filed its answer, denying that
it discharged plaintiff and asserting that plaintiff
continued to be employed until the expiration of her
contract on April 30, 2003. In support of this contention,
defendant alleged that it continued to pay full salary and
benefits to plaintiff through the expiration of her
employment contract. Defendant further denied that it
retaliated against plaintiff and instead alleged that it
elected not to renew plaintiff’s employment contract
because she had demonstrated “repeated instances of
flagrant insubordination towards her supervisors.”
On May 6, 2005, defendant moved for judgment on the
pleadings pursuant to section 2-615 (e) of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2002))
for failure to state a claim upon which relief may be
granted. At a hearing on that motion, defendant argued that
Illinois law does not recognize a claim of retaliatory
discharge for the failure to renew an expired employment
contract.
On August 26, 2005, the trial court denied defendant’s
motion for judgment on the pleadings. In doing so, the
court held that in “those situations in which an
employee has been involved in a year-to-year contract
renewal and if the employee is able to establish that the
failure to renew the contract was for exercising some
protected right, that the doctrine of retaliatory discharge
would be applicable.” Recognizing that “this is a new and
novel situation,” the trial court certified the following
question for interlocutory appeal pursuant to Supreme Court
Rule 308 (155 Ill. 2d R. 308): “May a contract employee who
engaged in protected whistleblowing activity bring a cause
of action for retaliatory discharge when the employer fails
to renew the employee’s written contract [?]” Following a
supervisory order from our supreme court, we granted leave
to appeal and now address this question.
As with all questions of law, we review questions presented
for interlocutory appeal under a de novo standard. United
General Title Insurance Co. v. AmeriTitle, Inc., 365 Ill.
App. 3d 142, 147, 847 N. E. 2d 848, 852 (2006). In an
interlocutory appeal, the court’s examination is limited to
the questions certified by the trial court, and a reviewing
court will ordinarily not expand the certified question
under review to answer other questions that could have been
included but were not. United General Title, 365 Ill. App.
3d at 147, 847 N. E. 2d at 852.
II. ANALYSIS
In Illinois, in order to establish a tort claim for
retaliatory discharge, a plaintiff must show (1) that she
has been discharged; (2) in retaliation for her activities;
and (3) that the discharge violates a clear mandate of
public policy. Zimmerman v. Buchheit of Sparta Inc., 164
Ill. 2d 29, 35, 645 N. E. 2d 877, 881 (1995). Defendant’s
primary assertion is that the failure to renew a fixed-term
employment contract does not equate to a “discharge.”
Plaintiff contends that the purpose of retaliatory
discharge is to protect an employee’s right to enforce
compliance by the employer with public policy and that the
term “discharge” should be given a liberal interpretation
so as not only to include the termination or dismissal of
at-will employees, but also the failure to renew a contract
of an ongoing employee. We disagree.
The tort of retaliatory discharge has a relatively short
and unique history in our state. After first being
introduced, the tort followed a short period of expansion,
but was quickly curtailed. Illinois law has long upheld the
“at-will” employment doctrine under which an employer may
terminate an employee at any time with or without cause.
Buckner v. Atlantic Plant Maintenance Inc., 182 Ill. 2d 12,
19, 694 N.E. 2d, 565, 569 (1998).
The tort of retaliatory discharge has developed as an
exception to this rule and was first recognized in Kelsay
v. Motorola, Inc., 74 Ill. 2d 172, 182, 384 N. E. 2d 353,
357 (1978), where the supreme court held that there was a
cause of action for retaliatory discharge for employees who
were terminated in retaliation for filing worker’s
compensation claims. In that case, the court noted that the
public policy underlying the Workers’ Compensation Act
would be seriously undermined if employers were allowed “to
discharge, or threaten to discharge,” employees who sought
relief under the Act. Kelsay, 74 Ill. 2d at 182, 384 N. E.
2d at 357. Moreover, the court held that compensatory
damages under contract law were ineffective in deterring
the employer’s otherwise absolute power to terminate
at-will employees and provided that, under the new tort, a
claimant could seek punitive damages. Kelsay, 74 Ill. 2d at
186-187, 384 N. E. 2d at 359-60.
Soon thereafter, in Palmateer v. International Harvester
Co., 85 Ill. 2d 124, 133, 421 N.E. 2d 876, 880 (1981), the
supreme court extended the tort of retaliatory discharge
beyond its workers’ compensation origins to provide a
remedy to an employee fired for reporting the criminal
activity of a coworker. In expanding the tort to include
whistleblowing activity, the court held that “[t]he
foundation of the tort of retaliatory discharge lies in the
protection of public policy.”[fn1] Palmateer, 85 Ill. 2d at
133, 421 N. E. 2d at 880. In Palmateer, the court also
acknowledged the shortcomings of the mutuality theory of
at-will employment, specifically the dichotomy between
“large corporations conducting specialized operations” and
“relatively immobile workers who often have no other place
to market their skills.” Palmateer, 85 Ill. 2d at 129, 421
N. E. 2d at 878. The court recognized that in an age of
rising corporations, the employer and employee no longer
“stand on equal footing,” and that the policy driving the
tort of retaliatory discharge should be to strike a proper
balance “among the employer’s interest in operating a
business efficiently and profitably, the employee’s
interest in earning a livelihood, and society’s interest in
seeing its public policies carried out.” Palmateer, 85 Ill.
2d at 129, 421 N. E. 2d at 878.
In Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 150,
473 N. E. 2d 1280, 1284 (1984), the supreme court further
extended the retaliatory discharge cause of action to
unionized employees, by holding that an action for
retaliatory discharge was available to them, independently
of their collective-bargaining agreements. In doing so, the
court noted:
“[T]here is no reason to afford a tort remedy to at-will
employees[,] but to limit union members to contractual
remedies under their collective bargaining agreements.
[Citation.] Generally, if a union employee’s grievance
goes to arbitration and the arbitrator does not find just
cause for the employee’s discharge, the remedy will be
simply job reinstatement and full back pay. [Citation.] If
there is no possibility that an employer can be liable in
punitive damages, not only has the employee been afforded
an incomplete remedy, but there is no available sanction
against a violator of an important public policy of the
State. It would be unreasonable to immunize from punitive
damages an employer who unjustly discharges a union
employee, while allowing the imposition of punitive
damages against an employer who unfairly terminates a
nonunion employee. The public policy against retaliatory
discharges applies with equal force in both situations.”
Midgett, 105 Ill. 2d at 150, 473 N. E. 2d at 1284.
Since Midgett, however, the supreme court has declined to
expand the tort any further. Specifically, in Barr v.
Kelso-Burnett Co., 106 Ill. 2d 520, 528, 478 N. E. 2d 1354,
1356-57 (1985), the supreme court refused to extend the
tort to encompass discharge for the exercise of the right
to free speech, because the plaintiff failed to allege a
violation of a clearly mandated public policy, as “[t]here
[was] nothing in either the Illinois Constitution or the
Illinois Human Rights Act to mandate the inclusion of the
right of free speech into those rights which are applicable
to the employer-employee relationship.” In confining the
scope of retaliatory discharge causes of action, the court
noted: “[T]his court has not, by its Palmateer and Kelsay
decisions, `rejected a narrow interpretation of the
retaliatory discharge tort’ and does not `strongly support’
the expansion of the tort.” Barr, 106 Ill. 2d at 525, 478
N. E. 2d at 1356.
Subsequent decisions of the supreme court further confined
and narrowed the scope of the tort, by their refusal to
recognize a claim in any injury short of actual discharge.
In Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 163,
601 N. E. 2d 720, 730 (1992), the supreme court declined to
expand the tort to encompass “constructive discharge.” In
that case, plaintiff was injured while working as an
apprentice lineman and began receiving disability benefits
in accordance with the Illinois Workers’ Compensation Act.
Hartlein, 151 Ill. 2d at 147, 601 N.E. 2d at 722-23. After
continued vocational therapy showed that plaintiff could
not be rehabilitated to such an extent as would allow him
to be able to continue working as a lineman, defendant
directed plaintiff to engage in a job search, but indicated
that it had no intention of discharging him. Hartlein, 151
Ill. 2d at 161, 601 N. E. 2d at 729. Plaintiff acknowledged
that he would not accept another job by means of such a
search, unless it was comparable to the job he had with
defendant, but asserted that the retaliatory discharge cause
of action should apply to the “discharge process.”
Hartlein, 151 Ill. 2d at 161, 601 N. E. 2d at 729. The
supreme court declined to extend the tort to the
circumstances of this case and held that plaintiff had not
stated a claim of retaliatory discharge because mere advice
to seek other employment does not constitute actual
discharge. Hartlein, 151 Ill. 2d at 162, 601 N. E. 2d at
729.
Following the same rationale, in Zimmerman, 164 Ill. 2d at
37-38, 39, 645 N. E. 2d at 881-82, the supreme court
further narrowed the scope of the tort by refusing to
extend the cause of action to retaliatory demotions,
suspensions or any “circumstances in which an employee
suffers a loss of employment status or income or both, but
is not terminated form her employment altogether.” In that
case, plaintiff alleged that in retaliation for seeking
workers compensation benefits, her employer demoted her and
reduced her work time. Zimmerman, 164 Ill. 2d at 31, 645 N.
E. 2d at 878. In refusing to extend the discharge element
of the tort to these circumstances, the court in Zimmerman
explained that it did not wish to “dilute the discharge
requirement.” Zimmerman, 164 Ill. 2d at 39, 645 N. E. 2d at
882.
Appellate court decisions have similarly followed this
retrenchment in the retaliatory discharge cause of action,
refusing to extend it to any employment action short of
actual discharge. See Graham v. Commonwealth Edison Co.,
318 Ill. App. 3d 736, 742, 742 N. E. 2d 858, 864 (2000)
(granting summary judgment to employer on plaintiff’s
allegations that after he made complaints about safety
violations at employer’s nuclear power station, he was
demoted from his managerial position to a position with
lower pay and no supervisory duties, that he was later
transferred and denied promotions and all meaningful job
responsibilities; court specifically held that “discharge”
in an employment context is commonly understood to mean
“the release, dismissal or termination of an employee” and
does not encompass demotions); Welsh v. Commonwealth Edison
Co., 306 Ill. App. 3d 148, 153, 713 N. E. 2d 679, 683
(1999) (holding that nuclear power plant employees could
not maintain action for constructive retaliatory discharge
based on allegations that they were demoted, placed in new
jobs at different locations and suffered losses in pay and
deterioration of working conditions after they reported
safety concerns to management and to Nuclear Regulation
Commission); Hindo v. University of Health Sciences/Chicago
Medical School, 237 Ill. App. 3d 453, 460, 604 N. E. 2d
463, 468 (1992) (expressly rejecting retaliatory demotion
as a cause of action where medical school professor alleged
that he was demoted in retaliation for reporting fraudulent
activities of school employees at affiliated hospital);
Melton v. Central Illinois Public Service Co., 220 Ill.
App. 3d 1052, 1056, 581 N. E. 2d 423, 425 (1991) (rejecting
plaintiffs’ claim that a “threat to discharge or discipline
short of discharge,” stated a valid cause of action, where
plaintiffs were taking absences to obtain medical treatment
for job-related injuries covered by the workers’
compensation statute); Veit v. Village of Round Lake, 167
Ill. App. 3d 350, 351-52, 521 N. E. 2d 145, 146-47 (1988)
(holding that Illinois does not recognize a claim of
retaliatory harassment where plaintiff alleged that he was
placed in a less desirable work rotation, required to work
on holidays, denied opportunities to attend seminars to
further his education, refused vacation time, and was
generally abused and mistreated in retaliation for filing a
worker’s compensation claim); Stuzman v. Board of Education
of the City of Chicago, 171 Ill. App. 3d 670, 675, 525 N.
E. 2d 903, 907 (1988) (concluding that a retaliatory
discharge cause of action does not encompass a 24-hour
retaliatory suspension of a school principal who was
allegedly disciplined for his failure to cooperate with the
school’s legal department); Scheller v. Health Care
Services Corp., 138 Ill. App. 3d 219, 225, 485 N. E. 2d 26,
29-30 (1985) quoting Beye v. Bureau of National Affairs, 59
Md. App. 642, 653, 477 A. 2d 1197, 1203 (1984) (refusing to
extend the tort of retaliatory discharge to situations
where an `employer has deliberately caused or allowed the
employee’s working conditions to become so intolerable that
a reasonable person in the employee’s place would have felt
compelled to resign’)[fn2]; New Horizons Electronics
Marketing, Inc. v. Clarion Corporation of America, 203 Ill.
App. 3d 332, 336, 561 N. E. 2d 283, 285 (1990) (holding
that an independent contractor who alleged that it was
terminated from its position as sales representative for
defendant, for its refusal to participate in illegal bribes
and kickbacks could not maintain an action for retaliatory
discharge because the court has not “expanded the tort
outside of the employment setting,” (emphasis in original)
and because plaintiff was not an employee but an
independent contractor).
In light of the foregoing decisions following Barr, it is
readily apparent that the interest in protecting compliance
with public policy espoused by Kelsay, Palmateer and
Midgett will not suffice to encompass retaliatory conduct
by an employer short of actual discharge. Thus, in Illinois
the only decision involving an action for retaliatory
discharge for a failure to renew an employment contract has
held that the tort of retaliatory discharge does not
encompass the failure to rehire. See Krum v. Chicago
National League Ball Club, Inc., 365 Ill. App. 3d 785,
789-90, 851 N. E. 2d 621, 624-25 (2006). The rationale for
this trend was best evinced by the court in Zimmerman:
In our view [the expansion of the doctrine of retaliatory
discharge] would replace the well-developed element of
discharge with a new, ill-defined, and potentially
all-encompassing concept of retaliatory conduct or
discrimination. The courts then would be called upon to
become increasingly involved in the resolution of
workplace disputes which center on employer conduct that
heretofore has not been actionable in common law or by
statute. Zimmerman, 164 Ill. 2d at 39, 645 N. E. 2d at
882.
In Krum, 365 Ill. App. 3d at 789-90, 851 N. E. 2d at
624-25, this court affirmed the dismissal of a claim for
retaliatory discharge by a plaintiff whose fixed-term
employment contract expired without renewal. Plaintiff,
Krum, was an assistant athletic trainer for the Chicago
Cubs working under a one-year employment contract. Krum
alleged that following his complaints to management
regarding violations of the Illinois Athletic Trainers
Practice Act (225 ILCS 5/4 (West Supp. 2005)), the Cubs
“terminated” him in retaliation for his complaints, even
though they continued to pay his salary until the date his
employment contract expired. Krum, 365 Ill. App. 3d at 787,
851 N. E. 2d at 623. The court held that consistent with the
supreme court’s desire to restrict the common law of
retaliatory discharge, “absent a statutory basis,
contractual employees, such as Krum, cannot bring a claim
for retaliatory discharge when employers fail to renew an
employment contract.” Krum, 365 Ill. App. 3d at 790, 851
N. E. 2d at 625. In doing so, the court noted that the
Athletic Trainers Practice Act, upon which Krum relied, did
not contain any language “prohibiting retaliatory
employment conduct,” and thus dismissed plaintiff’s claim.
Krum, 365 Ill. App. 3d at 790, 851 N. E. 2d at 625. In light
of the clear trend of retrenchment reflected in our supreme
court decisions since Barr, we agree with the position
taken in Krum.
In addition to Krum, other jurisdictions have refused to
extend the common law retaliatory discharge cause of action
to encompass failures to renew a contract. In Luethans v.
Washington University, 894 S.W.2d 169, 171-72 (Mo. 1995), a
case factually very similar to the case at bar, the
Missouri Supreme Court affirmed summary judgment for the
defendant where plaintiff pled a case for wrongful discharge
but the uncontroverted facts established that he was a
contract employee whose contract term had expired.[fn3] In
that case, plaintiff was a veterinarian hired by defendant
Washington University on an annual appointment basis.
Luethans, 894 S.W.2d at 170. After years of continuous
appointment by the school, Washington University informed
plaintiff by letter that it would not renew his latest
one-year employment contract upon expiration. Luethans, 894
S.W.2d at 170. Plaintiff filed a claim of retaliatory
discharge against the university, alleging that defendant
had retaliated against him in violation of the Animal
Welfare Act for his reporting abuses of laboratory animals
to his superiors and discussing the possibility of
reporting the abuse to outside parties.[fn4] Luethans, 894
S.W.2d at 170. The Missouri Supreme Court affirmed judgment
for the university as a matter of law because plaintiff had
pled his cause of action under the theory of wrongful
discharge, whereas his employment with the university had
expired under the employment contract. Luethans, 894 S.W.2d
at 172. The court rejected plaintiffs argument that the
failure to renew an employment contract, “especially one
from year to year,” should be treated the same as the
discharge of an employee at will. In doing so, the court
noted:
“[Defendant] ignores the significant difference in the
relationship. An employer and an employee at will have an
indefinite agreement that the employee will work only so
long as both parties wish the relationship to continue.
Either can end the relationship at any time without cause
or liability, so long as the act of discharge is not
otherwise `wrongful.’ A contractual employee, however, has
a relationship with the employer that is controlled either
by express or implied terms. Neither the employee nor the
employer can vary those terms without cause or liability
[that] may result.” Luethans, 894 S.W.2d at 172.
Similarly, the California Court of Appeals has refused to
recognize a claim for retaliatory discharge by a
contractual employee. In Daly v. Exxon Corp., 55 Ca. App.
4th 39, 45, 63 Cal. Rptr. 2d 727, 730 (1997), that court
held that an employee could not state a common law
retaliatory discharge cause of action for her employer’s
failure to renew her fourth consecutive one-year employment
contract after she complained of safety violations because
“she was not fired, discharged, or terminated.” In doing
so, the court noted, “[w]e are unaware of any case, and
[plaintiff] presents none, in which an employer was held
liable in tort for refusing to renew an employment contract
that had expired by its own terms.” Daly, 55 Ca. App. 4th
at 46, 63 Cal. Rptr. 2d at 730. Similarly, relying on Daly,
a California court recently held that the mere non-renewal
of a teacher’s employment contract does not constitute an
adverse employment action for purposes of stating a common
law retaliatory discharge claim. See Motevalli v. Los
Angeles Unified School District, 122 Cal. App. 4th 97, 106,
18 Cal. Rptr. 3d 562, 567 (2004). We agree with the
rationale of these courts and find that it comports with
the general trend of our supreme court to narrow the scope
of the Illinois retaliatory discharge claim. As such, we
refuse to extend the common law tort of retaliatory
discharge beyond the confines defined in Krum.
Plaintiff, however, presents us with one recent district
court decision, Helm v. Board of Trustees of Community
College of District No. 504, No. 92 C 5118 (N.D. Ill.
October 26, 1994), and one Vermont Supreme Court opinion,
LoPresti v. Rutland Regional Health Services, Inc., 177 Vt.
316, 865 A.2d 1102 (2004), for the proposition that some
courts have been willing to extend the tort of retaliatory
discharge to failures by an employer to renew an employment
contract.
With regard to Helm, we first note that as a federal
district court opinion, that decision is not precedential
or binding. See People v. Battiste, 133 Ill. App. 2d 62,
65, 272 N. E. 2d 808, 811-12 (1971) quoting United States
ex. rel Lawrence v. Woods, 432 F. 2d 1072, 1075 (7th Cir.
1970) (noting that `because lower federal courts exercise
no appellate jurisdiction over state tribunals, decisions
of lower federal courts are not conclusive on state
courts’). Furthermore, although the district court in Helm
denied defendant’s motion for summary judgment as to
plaintiff’s tort claim for retaliatory discharge, it
provided no independent rationale for this decision. Helm,
slip. op at 7. Instead, the court merely relied on the
reasons which it had already discussed in context with a
separate count of plaintiff’s complaint predicated on
section 1983 of the Civil Rights Act of 1991 (42 U.S.C.
§ 1983 (West 2000)), which prohibited the employer,
a state institution, from acting under color of law and
depriving plaintiff of the rights guaranteed to her by the
Constitution (42 U.S.C. § 1983 (West 2000)),
specifically by “discharging [her as] a public employee or
denying her a job benefit”on the basis of her political
affiliation in violation of the First Amendment (Emphasis
added.) Helm, slip. op. at 4. The sole articulation for the
basis of the court’s ruling allowing plaintiff to proceed
with her state retaliatory discharge claim was made in the
following statement: “Based upon the reasoning given supra,
for Count I [42 U.S.C. § 1983 (2000), violation of
first amendment rights], defendant’s motion for summary
judgment is denied as to Count IV [state retaliatory
discharge].” Helm, slip. op. at 7. Unlike Helm, no first
amendment freedom of speech violations were raised in this
case.
We similarly find plaintiff’s reliance on Lopresti to be
misplaced. In that case, plaintiff, a physician, alleged
that he was terminated for his refusal to refer his
patients to certain specialists whom he believed provided
substandard care to his patients and in some cases
performed unnecessary invasive procedures. Lopresti, 177 Vt.
at 323-24, 865 A.2d at 1109. Plaintiff was employed under a
contract, which specifically stated that termination could
occur “[o]ne [h]undred [e]ighty (180) days after written
notice of termination with or without cause from either
party” to the other. Lopresti, 177 Vt. at 325, 865 A.2d at
1110. The court in Lopresti characterized employment under
this agreement as being terminable at will. Lopresti, 177
Vt. at 325, 865 A.2d at 1110. While we might not have
treated an agreement with a six-month notice requirement in
the same manner as Lopresti, in our case, the contract was
phrased to explicitly provide for a fixed one-year term of
employment, which expired automatically after one year.
However, plaintiff argues that even if we were to follow
the reasoning in Krum, and accept the limited reach of the
common law retaliatory discharge cause of action, this
limitation would not apply to her case, because in her
complaint she alleged she was discharged in retaliation for
her whistle blowing activities under the Animal Welfare Act
(Act), which contains express language barring any
“discrimination” or “reprisal” against those reporting
violations of the Act. We disagree.
Initially, we recognize that section 2.32(c)(4) promulgated
as part of the Act does provide specific language barring
retaliation against plaintiff:
“(c) Training and instruction of personnel must include
guidance in at least the following areas:
* * *
(4) Methods whereby deficiencies in animal care and
treatment are reported, including deficiencies in animal
care and treatment reported by any employee of the
facility. No facility employee, Committee member, or
laboratory personnel shall be discriminated against or be
subject to any reprisal for reporting violations of any
regulation or standards under the Act.” (Emphasis added.)
9 C.F.R. § 2.32(c) (1994).
Unlike the Athletic Trainers Practice Act, at issue in Krum,
which “contain[ed] no language prohibiting retaliatory
employment conduct,” the language of section 2.32(c)(4)
plainly prohibits “discrimination against” or “any
reprisal” for reporting violations of the Act.
However, in a recent decision, in Moor-Jankowski v. The
Board of Trustees of New York, No. 96 Civ. 5997 (S.D.N.Y.
August 10, 1998) (unreported decision), the Southern
District court of New York held that section 2.32(c)(4)
does not provide a private cause of action for
whistleblowers because whistleblowers are not part of the
class for whose special benefit Congress enacted the Act,
and because there is no evidence of either explicit or
implicit congressional intent to protect such persons under
the Act. Although we are aware that we are not bound by
decisions of district courts (See Battiste, 133 Ill. App. 2d
at 65, 272 N. E. 2d at 811-12), we find the reasoning of
Moor-Jankowski to be persuasive and to be fully consistent
with our analysis of similar statutory and regulatory
provisions.
In finding section 2.32(c)(4) does not provide
whistleblowers with a private cause of action, the court in
Moor-Jankowski first noted that the Animal Welfare Act was
enacted in 1966 `to insure that animals intended for use in
research facilities . . . are provided humane care and
treatment.’ Moor-Jankowski, slip. op. at 7 quoting 7
U.S.C.§ 2131(1) (2000). The court reasoned that the
Act explicitly vests the Secretary of Agriculture with the
power to conduct inspections and investigations to
determine violations of the statute, and then levy fines,
issue cease and desist orders, suspend and revoke licenses,
and institute criminal prosecutions against violators.
Moor-Jankowski, slip. op. at 9 quoting 7 U.S.C.
§§ 2146, 2149 (2000). Moreover, the Act gives
federal courts jurisdiction to enforce the Secretary’s
orders and to prevent and restrain violations of the Act
and its regulations. Moor-Jankowski, slip. op. at 9 citing
7 U.S.C. § 146 (2000).
The district court in Moor-Jankowski took note, that unlike
these explicit provisions, which grant the Secretary
enforcement power, the Act contains no provisions regarding
whistleblowers. Specifically, the court remarked:
“Nowhere does the [Act] provide for private citizens
to file private causes of action for violations of the
statue or [of] any of its implementing regulations
promulgated by the Secretary. This silence is significant
insofar as on numerous occasions Congress has explicitly
provided for private causes of action by employees
subjected to retaliation for reporting violations of
federal law. See eg., 5 U.S.C. § 2302 (b)(8); 15
U.S.C. § 2622 (Toxic Substance Control Act); 33
U.S.C. § 1367 (Water Pollution Control Act); 42
U.S.C. § 6971 (Solid Waste Disposal Act); 46 U.S.C.
§ 2114 (creating private cause of action for seamen
who suffer retaliation for reporting to the Coast Guard
violations of federal shipping and maritime laws). The
fact that Congress chose not to do so here weighs
against any finding of implicit or explicit congressional
intent to [protect] whistleblowers.” Moor-Jankowski, slip.
op. at 8.
Accordingly, the court concluded that although regulation
2.32(c)(4) indirectly serves to protect “whistleblowers,”
it primarily aims to “further the [Act’s] central purposes
and the Secretary’s ability to effectively administer the
[Act] by encouraging the exposure of animal abuse in
research facilities,” and thus declined to imply a private
cause of action for whistleblowers. Moor-Jankowski, slip.
op. at 7.
We agree with the rationale in Moor-Jankowski and find that
it is consistent with the decisions of our supreme court
which have thus far been hesitant “to imply [private
retaliatory discharge] actions under a statute without
explicit legislative authority.” Fisher v. Lexington Health
Care Inc., 188 Ill. 2d 455, 460-61, 468, 722 N. E. 2d 1115,
1118, 1121 (1999) (supreme court refused to imply a private
right of action for nursing home employees from section
3-608 of the Nursing Home Care Act (210 ILCS 45/3-608 (West
1996)) which prohibited the “transfer, discharge,
evict[ion], harasss[ment], dismissal or retaliation”
against, among others, nursing home employees who reported
abuse and neglect of nursing home residents, because
nursing home employees were not members of the class that
the Nursing Home Care Act was enacted to protect, and their
injuries were not the type the statue was designed to
prevent); Metzger v. DaRosa, 209 Ill. 2d 30, 35, 805 N. E.
2d 1165, 1168 (2004) (court declined to imply a private
cause of action for whistleblowers from section 19c.1 of
the Personnel Code (20 ILCS 415/19c.1 (West 2002)), which
prohibited retaliation against state employees for
reporting violations of “‘any law, rule, or regulation'” or
“‘mismanagement, a gross waste of funds, and abuse of
authority, or a substantial and specific danger to pubic
health or safety'” because the statute was primarily
intended to protect the public by providing efficient
government administration, and because no civil remedy was
provided by the statute for those employees injured by its
violations).
III. COROLLARY MATTERS
Plaintiff nevertheless requests that we remand to permit
further amendment of her pleadings. Although she does not
articulate, other than by vague innuendo, what actions she
may yet plead, other than those which we have precluded by
our answer to the certified question presented here, we
nevertheless remand to permit the trial court to consider
whether in fact viable causes of action remain available to
plaintiff under the applicable rules of the Code of Civil
Procedure, including section 2-616 (735 ILCS 5/2-616 (West
2002)).
For the above-stated reasons, we answer the certified
question in the negative and reverse the order of the trial
court.
Reversed and remanded for further proceedings.
McNULTY and O’MALLEY, J. J., concur.
[fn1] Since then, the “whistleblower” cause of action has
been codified in the Illinois Whistleblower Act (740 ILCS
174/15 (West 2004)), effective January 1, 2004.
[fn2] The decision in Scheller was noted with approval by
our supreme court in Hinthorn v. Roland’s of Bloomington,
Inc., 119 Ill. 2d 526, 530-31, 519 N. E. 2d 909, 911-12
(1988).
[fn3] Although at the time of the Luethans decision,
Missouri had not expressly defined or adopted the public
policy exception to the at-will employment doctrine, the
court noted that numerous Missouri appellate courts had
adopted the doctrine and concluded that “[f]or the purposes
of this opinion, we assume that the public policy exception
to the at-will employment doctrine exists.” Luethans, 894
S.W.2d at 171-72. Since Luethans, the Missouri Supreme
Court has adopted the doctrine with en banc approval (see
McCoy v. Caldwell County, 145 S.W.3d 427, 429 (Mo. 2004)).
[fn4] We note that, although just as in this case, the
plaintiff in Leuthans alleged that he was retaliated
against in violation of 9 C.F.R. 2.32(c)(4) (2006), the
Missouri Supreme Court did not consider whether that
regulation provided whistleblowers a private cause of action
for retaliatory discharge.