                                   2018 IL App (1st) 170067


                                                                           FIRST DIVISION
                                                                           April 16, 2018



No. 1-17-0067

                                        IN THE
                              APPELLATE COURT OF ILLINOIS
                                    FIRST DISTRICT


KENRICK ROBERTS,                                    )      Appeal from the
                                                    )      Circuit Court of
       Plaintiff-Appellant,                         )      Cook County.
                                                    )
v.                                                  )
                                                    )      No. 15 L 9430
BOARD OF TRUSTEES COMMUNITY                         )
COLLEGE DISTRICT NO. 508 d/b/a                      )
City Colleges of Chicago,                           )      Honorable
                                                    )      James Snyder,
       Defendant-Appellee.                          )      Judge Presiding.


       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff-appellant, Kenrick Roberts, filed this action against defendant-appellee, Board

of Trustees Community College District No. 508 d/b/a City Colleges of Chicago, alleging causes

of action for common law retaliatory discharge, violations of the Whistleblower Act (740 ILCS

174/20 (West 2016)), and wrongful termination. After engaging in motion practice, the circuit

court dismissed the retaliatory discharge claim and whistleblower claim with prejudice.

¶2     On appeal, plaintiff contends the circuit court erred in dismissing those two counts. He

contends his claim for retaliatory discharge successfully alleges a violation of Illinois public
No. 1-17-0067


policy. He also claims the second amended complaint properly alleges he refused to participate

in defendant’s unlawful conduct so as to fall within the protection of the Whistleblower Act.

¶3     For the reasons stated more fully below, we reverse the dismissal of plaintiff’s retaliatory

discharge claim but affirm the dismissal of his claim brought under the Whistleblower Act.

¶4                                             JURISDICTION

¶5     On October 25, 2016, the circuit court dismissed with prejudice count I (retaliatory

discharge) and count II (Whistleblower Act) of plaintiff’s second amended complaint. According

to the record, plaintiff made an oral motion for Illinois Supreme Court Rule 304(a) language,

which the circuit court denied. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). On November 22, 2016,

the plaintiff filed a motion to reconsider the denial of Rule 304(a) language. On December 15,

2016, the circuit court granted the motion to reconsider. In granting the motion, the circuit court

made an express finding under Rule 304(a) that there was no just reason to delay the appeal of

the October 25 dismissal of counts I and II. Plaintiff filed his notice of appeal on January 5,

2017. Accordingly, this court has jurisdiction over this matter pursuant to article VI, section 6 of

the Illinois Constitution and Illinois Supreme Court Rules 301 and 304(a). Ill. Const. 1970, art.

VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 304(a) (eff. Mar. 8, 2016).

¶6                                             BACKGROUND

¶7     In March 2013, plaintiff began working for the defendant as the clinical coordinator of

the physician assistant program at Malcolm X College (Malcolm X). In June 2014, plaintiff was

promoted to the position of program director of the physician assistant program. 1 In November

2014, plaintiff was promoted to the position of director of medical programs.




       1
        Malcolm X College is a community college located in the City of Chicago and is operated by
defendant.
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¶8     As the director of medical programs, plaintiff reported directly to and worked closely

with Dr. Micah Young, the dean of health sciences and career programs at Malcolm X and Dr.

Mario De La Haye, the associate dean of health sciences and career programs at Malcolm X. As

part of his job duties and responsibilities as the director of medical programs, plaintiff was

responsible for vetting potential instructors for teaching various courses and curriculum. This

responsibility included ensuring instructors assigned to teach various courses, including but not

limited to HeaPro 101, met the appropriate accreditation standards and had the correct

qualifications to teach the assigned course and curriculum.

¶9     HeaPro 101 includes the instruction of phlebotomy2 and electrocardiograms (EKG). The

National Accrediting Agency for Clinical Laboratory Sciences (NAACLS) states that in order for

a course or curriculum to be accredited and approved for phlebotomy, the class must have

qualified faculty. Under NAACLS, in order to be qualified to teach phlebotomy within the

phlebotomy or health care basic certificate program, the faculty needs to be a certified

professional in that field, must demonstrate knowledge and proficiency in that field, and must

demonstrate the ability to teach effectively at the appropriate level. A professor can be certified

in phlebotomy by the National Phlebotomy Association or through the American Society of

Clinical Pathologists.

¶ 10   On or about January 15, 2015, plaintiff alleges that he became aware of complaints that

the instructor assigned to teach HeaPro 101 was unqualified to teach the course and curriculum.

As a result of the complaints, plaintiff met with the HeaPro 101 instructor and questioned her

qualifications to teach HeaPro 101. The instructor informed plaintiff that she had never taught

phlebotomy before, she was unfamiliar with the requirements and certifications necessary to

become a phlebotomist, phlebotomy was not her area of expertise, and she did not have any

       2
        Phlebotomy is the practice of drawing blood from a patient for clinical testing.
                                                  -3­
No. 1-17-0067


certifications in phlebotomy. After meeting with the instructor, plaintiff found her unqualified to


teach HeaPro 101. 


¶ 11   On or about January 15, 2015, plaintiff sent an e-mail to Dr. Young and Dr. De La Haye


complaining about the unqualified instructor. The e-mail stated:


       “In compliance with the City Colleges of Chicago policy and the College of

       Health Science credentialing standards and requirements it is my responsibility as

       Program Director of HeaPro 101 to review, evaluate and approve the

       recommendation of each faculty member that is approved to teach in the program

       which I am director. Taking into consideration I had no input into the department

       decision to appoint a nurse to teach HeaPro 101 without my review of the

       credentials and necessary certifications and licenses put our programs and

       students at risk. Please note this is a breach of the standards that were developed

       to ensure that the students obtain the best outcomes moving forward with their

       education in the medical field. Please note I am very concerned about the

       direction in which we are traveling and wish to address this matter.”

After receiving the e-mail from plaintiff, Dr. Young sent an e-mail to the president and provost

of Malcolm X College stating his concerns about the unqualified instructor and asked how it

should be addressed.

¶ 12   Following his January 15, 2015 e-mail, plaintiff made verbal complaints to Dr. Anthony

Munroe, president of Malcolm X College, regarding the appointment of an unqualified professor

to teach HeaPro 101. He informed Dr. Munroe that he had been intentionally excluded from the

hiring process of the unqualified instructor and he refused to support the assignment. On

February 4, 2015, without prior notice, Dr. Young was unexpectedly terminated from his


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No. 1-17-0067


position with defendant. On February 5, 2015, Dr. De La Haye was unexpectedly placed on paid

administrative leave. Dr. De La Haye remained on leave until his termination on April 20, 2015.

¶ 13   On February 25, 2015, plaintiff sent an e-mail to the president, vice president, and

associate provost again complaining about the unqualified instructor assigned to teach HeaPro

101. In addition to what plaintiff had previously learned from his interview with the instructor,

plaintiff had learned that the instructor had abandoned the class. Plaintiff found out another

individual was assigned to complete instruction in the course, but this individual was not

properly certified to teach EKG.

¶ 14   Upon receipt of plaintiff’s February 25, 2015, e-mail, Dr. Christopher Robinson-Easley,

vice president of Malcolm X College, requested that plaintiff meet with her regarding the

complaints in the e-mail. After receiving the request from Dr. Robinson-Easley, plaintiff sent an

e-mail to Aaron Allen, executive director of labor and employee relations. Plaintiff told Allen

that he felt uncomfortable about Dr. Robinson-Easley’s request considering his complaints

regarding the instructor. Dr. Robinson-Easley was the individual who selected and assigned the

unqualified instructor to HeaPro 101. At the meeting, plaintiff found Dr. Robinson-Easley upset

about his complaints and unwilling to address his concerns.

¶ 15   Plaintiff continued to complain and question the appointment of the unqualified instructor

and the college’s failure to address the situation to Dr. Munroe. Following the meeting with Dr.

Robinson-Easley, plaintiff was excluded from important meetings, decisions, and discussions

regarding programs that were under his responsibilities as director of medical programs.

¶ 16   On June 15, 2015, Roy Walker, the associate dean of health sciences and career programs

at Malcolm X College, informed plaintiff that Dr. Robinson-Easley “has an axe to grind with

you” because of the HeaPro 101 complaints. On June 28, 2015, Dr. Munroe instructed plaintiff

to file an equal employment opportunity complaint against Dr. Robinson-Easley for retaliation in
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No. 1-17-0067


connection with plaintiff’s complaints. On August 7, 2015, plaintiff was advised that he was

terminated from his position as director of medical programs at Malcolm X College.

¶ 17   Plaintiff filed his original complaint on September 15, 2015. Plaintiff brought three

causes of action: retaliatory discharge, violation of the Whistleblower Act, and wrongful

termination. Defendant brought a motion to dismiss pursuant to section 2-619.1 of the Code of

Civil Procedure (Code). 735 ILCS 5/2-619.1 (West 2016). The circuit court granted the motion

with respect to the retaliatory discharge claim and whistleblower claim but granted plaintiff an

opportunity to replead. On February 24, 2016, plaintiff filed his amended complaint containing

the same three counts. Defendant filed another section 2-619.1 motion to dismiss, and the circuit

court dismissed the same two counts, again with leave to replead.

¶ 18   A second amended complaint alleging the same causes of action as the prior complaints

was filed on June 27, 2016. This time defendant moved to dismiss the retaliatory discharge claim

and whistleblower claim pursuant to section 2-615(a) of the Code. Id. § 2-615(a). On October 25,

2016, the circuit court granted the motion with prejudice. At the time, plaintiff made an oral

motion for the inclusion of Rule 304(a) language, but this request was denied. Plaintiff moved to

reconsider the denial of Rule 304(a) language, and on December 15, 2016, the circuit court

granted plaintiff’s motion to reconsider. The circuit court then entered an order finding no just

reason to delay the appeal. Plaintiff timely filed a notice of appeal. The wrongful termination

claim remains pending before the circuit court and is not before us.

¶ 19                                         ANALYSIS

¶ 20   On appeal, plaintiff argues that the circuit court erred in dismissing his common law

retaliatory discharge claim and his whistleblower claim. Both counts are before us after being

dismissed pursuant to section 2-615(a) of the Code. Id.


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No. 1-17-0067


¶ 21   A motion brought pursuant to section 2-615 tests the legal sufficiency of the complaint

based on defects apparent on its face. Doe-3 v. McLean County Unit District No. 5 Board of

Directors, 2012 IL 112479, ¶ 15. A section 2-615 motion presents the question of whether the

facts alleged in the complaint, viewed in a light most favorable to the plaintiff and taking all

well-pleaded facts and all reasonable inferences that may be drawn from those facts as true, are

sufficient to state a cause of action upon which relief can be granted. Id. ¶ 16. “[A] cause of

action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set

of facts can be proved that would entitle the plaintiff to recovery.” Marshall v. Burger King

Corp., 222 Ill. 2d 422, 429 (2006). In ruling on a section 2-615 motion, the court considers only

(1) those facts apparent on the face of the pleadings, (2) matters subject to judicial notice, and (3)

judicial admissions in the record. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.

2d 381, 385 (2005). We review the grant of a section 2-615 motion de novo. Doe-3, 2012 IL

112479, ¶ 15. Under this standard of review, we are not bound by the circuit court’s reasoning or

decision. See State Automobile Mutual Insurance Co. v. Habitat Construction Co., 377 Ill. App.

3d 281, 291 (2007).

¶ 22   Illinois follows the at-will employment rule, which means “a noncontracted employee is

one who serves at the employer’s will, and the employer may discharge such an employee for

any reason or no reason.” Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 32 (1994).

Illinois recognizes an exception to the general at-will employment rule when the discharge

violates a clear mandate of public policy. Turner v. Memorial Medical Center, 233 Ill. 2d 494,

501 (2009). This exception to the general rule acknowledges that under the common law “parties

to a contract may not incorporate in it rights and obligations which are clearly injurious to the

public.” Palmateer v. International Harvester Co., 85 Ill. 2d 124, 129 (1981). This exception


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No. 1-17-0067


represents the common law cause of action known as retaliatory discharge. Fellhauer v. City of

Geneva, 142 Ill. 2d 495, 505 (1991).

¶ 23   In order to state a cause of action for retaliatory discharge, an employee must allege (1)

the employer discharged the employee, (2) in retaliation for the employee’s activities, and (3) the

discharge violates a clear mandate of public policy. Id. The Illinois Supreme Court has

continuously cautioned the tort of retaliatory discharge is narrow in scope and the at-will

employment rule remains the law of Illinois. Turner, 233 Ill. 2d at 501. This tort seeks to achieve

“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.

¶ 24   Before this court, the only issue concerning plaintiff’s retaliatory discharge claim is

whether it states a violation of a clear mandate of Illinois public policy. The existence and

ascertainment of public policy is a question for the court to decide. Turner, 233 Ill. 2d at 501-02.

In Palmateer, the Illinois Supreme Court discussed the meaning of “clearly mandated public

policy”:

                “There is no precise definition of the term. In general, it can be said that

       public policy concerns what is right and just and what affects the citizens of the

       State collectively. It is to be found in the State’s constitution and statutes and,

       when they are silent, in its judicial decisions. [Citation.] Although there is no

       precise line of demarcation dividing matters that are the subject of public policies

       from matters purely personal, a survey of cases in other States involving

       retaliatory discharges shows that a matter must strike at the heart of a citizen’s

       social rights, duties, and responsibilities before the tort will be allowed.”

       Palmateer, 85 Ill. 2d at 130.
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No. 1-17-0067


Our court recognizes the tort is meant to prevent employers from “effectively frustrat[ing] a

significant public policy by using its power of dismissal in a coercive manner.” Fellhauer, 142

Ill. 2d at 508. The purpose of the tort is “to deter employer conduct inconsistent with [the public]

policy.” Id. Because the tort is concerned with the protection and enforcement of public policy, a

complaining party “must only show that the conduct complained of contravenes a clearly

mandated public policy, not necessarily a law.” Stebbings v. University of Chicago, 312 Ill. App.

3d 360, 369 (2000).

¶ 25   In the case before us, plaintiff’s position at Malcolm X required him to ensure instructors

in classes like HeaPro 101 were qualified to teach the course and curriculum. Plaintiff alleges

that despite his position and responsibilities, Dr. Robinson-Easley appointed unqualified

individuals to teach HeaPro 101 without consulting with plaintiff. After a meeting with the

phlebotomy instructor of HeaPro 101, plaintiff learned she had never taught phlebotomy, was

unfamiliar with the requirements and certifications necessary to become a phlebotomist,

phlebotomy was not her area of expertise, and she did not have any certifications in phlebotomy.

Plaintiff concluded the instructor was unqualified to teach HeaPro 101.

¶ 26   In an e-mail to several higher ranking school officials, including Dr. Robinson-Easley,

plaintiff expressed concern the appointments jeopardized the enrolled students’ ability to obtain

the educational benefits HeaPro 101 was designed to provide. When this instructor abandoned

HeaPro 101, another unqualified instructor was put in place. This new instructor was also

unqualified and not properly certified in EKG.

¶ 27   When plaintiff complained about the assignment of the unqualified instructors, he was

terminated. Plaintiff then brought this suit containing a claim for retaliatory discharge. Plaintiff

alleges his discharge for complaining about the unqualified instructors violated a specific public


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No. 1-17-0067


policy: “the right to obtain the benefits of a post-secondary education through federal and state

funded programs.”

¶ 28   In support of his argument, plaintiff cites to Title IV of the Higher Education Act of 1965

(20 U.S.C §§ 1070-1099d (2012)), which establishes various loan and grant programs to assist

students in obtaining a postsecondary education at places like Malcolm X. The funds must be

used at eligible institutions. In order to be an eligible institution, defendant must sign and comply

with a program participation agreement (PPA). The PPA requires defendant to “meet the

requirements established by *** accrediting agencies or associations” (id. § 1094(a)(21)) and

provide accurate information to these accrediting agencies. Plaintiff’s complaint alleges

defendant breached the PPA when it asserted to the accrediting agencies that HeaPro 101

instructors were properly qualified. Plaintiff also cites to section 1094(c)(3)(A), which subjects

any eligible institution to suspension or termination if it has engaged “in substantial

misrepresentation of the nature of its educational program, its financial charges, or the

employability of its graduates.” Id. § 1094(c)(3)(A).

¶ 29   While not cited to by the plaintiff, we take judicial notice of the Higher Education Loan

Act (Act) (110 ILCS 945/0.01 et seq. (West 2016)). See Cruz v. Puerto Rican Society, 154 Ill.

App. 3d 72, 75 (1987) (reviewing courts may take judicial notice of statutes of this state).

Section 2 (“Declaration of Purpose”) of the Act states:

       “It is declared that for the benefit of the people of the State of Illinois, the conduct

       and increase of their commerce, the protection and enhancement of their welfare,

       the development of continued prosperity and the improvement of their health and

       living conditions, it is essential that this and future generations of youth be given

       the fullest opportunity to learn and to develop their intellectual and mental

       capacities and skills; that to achieve these ends it is of the utmost importance that
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No. 1-17-0067


       students attending institutions of higher education located in Illinois have

       reasonable alternatives to enhance their financial access to such institutions; that

       reasonable financial access to institutions of higher education will assist such

       youth in achieving the required levels of learning and development of their

       intellectual and mental capacities and skills; that it is the purpose of this Act to

       provide a measure of assistance and an alternative method to enable students and

       the families of students attending institutions of higher education located in

       Illinois to appropriately and prudently finance the cost or a portion of the cost of

       such higher education; and that it is the intent of this Act to supplement federal

       guaranteed higher education loan programs, other student loan programs, and

       grant or scholarship programs to provide the needed additional options for the

       financing of a student’s higher education in execution of the public policy set

       forth above.” (Emphases added.) 110 ILCS 945/2 (West 2016).

Our General Assembly has concluded the purpose of providing public funds for higher education

is to provide the fullest opportunity for recipients to learn and develop their “intellectual and

mental capacities and skills.” Id. Based on the above, it is obvious to this court the purpose of

establishing both state and federal loan programs is to ensure individuals without the private

means of paying for a college education are given access to funds to better develop themselves

intellectually so as to provide a greater contribution to our state and country.

¶ 30   This is a case of first impression in this State. While the tort of retaliatory discharge is

well established in our jurisprudence, none of the cases cited by the parties or uncovered in the

court’s own research shows this claim has been brought in the circumstances presented in this

matter. Courts in this state have limited the tort’s application. For most of its history, the tort was

limited to (1) when the discharge stems from asserting a worker’s compensation claim (Kelsay v.
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No. 1-17-0067


Motorola, Inc., 74 Ill. 2d 172 (1978)) or (2) where the discharge is for certain activities referred

to as “whistle-blowing” (Palmateer, 85 Ill. 2d 124 (1981)). Where a matter involves only a

private and individual grievance, our courts have consistently refused to expand the tort of

retaliatory discharge. See Geary v. Telular Corp., 341 Ill. App. 3d 694, 701 (2003) (collecting

cases where Illinois courts have refused to expand the tort of retaliatory discharge).

¶ 31   On review, the question we are asked to answer “is whether the provisions ‘enunciate a

public policy that plainly covers the situation to which the plaintiff objects.’ ” Carty v. The Suter

Co., 371 Ill. App. 3d 784, 789 (2007) (quoting Stebbings, 312 Ill. App. 3d at 367). We conclude

the public policy behind the federal Higher Education Act of 1965 and Illinois’s Higher

Education Loan Act would be seriously undermined if defendant is allowed to act in the manner

alleged in plaintiff’s complaint. The above-cited statutes demonstrate that in accepting public

money, an institution of higher education should be able to assist those attending in “achieving

the required levels of learning and development of their intellectual and mental capacities and

skills.” 110 ILCS 945/2 (West 2016).

¶ 32   Malcolm X is a public institution of higher learning whose mission and role in society is

not to turn a profit but to educate and pass along knowledge to those students enrolled on its

campus. In order to receive the benefits from attending classes at Malcolm X, many of its

students take out loans under the above state and federal programs in order to subsidize, if not

entirely fund, their tuition payments. It is axiomatic that in order to accomplish the mission of

educating young men and women, defendant must staff its classes with competent individuals

who actually possess the knowledge listed in the course syllabus. If defendant accepts loan

money but uses it to hire incompetent and unqualified individuals who cannot properly instruct

students who are enrolled in classes like HeaPro 101, defendant has essentially defrauded both

the student and the taxpayer. The intent behind both the state and federal loan programs would
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No. 1-17-0067


be thwarted because those receiving incompetent instruction would be unable to “develop their

intellectual and mental capacities and skills.” Id. The benefit to the State would be nil. This is

more than a personal matter but concerns “what is right and just and what affects the citizens of

the State collectively.” Palmateer, 85 Ill. 2d at 130.

¶ 33     Defendant argues that Illinois lacks a clearly mandated public policy regarding the right

to obtain public financial aid for a postsecondary education. This argument is disingenuous.

There would be no point to enacting either a federal or state statute providing for public

financing (through student loans) of higher education if the government did not want its citizens

to utilize it. Simply put, if our government did not think providing all citizens with access to

funds for higher education was a good idea, it would not have enacted the statutes in the first

place.

¶ 34     In making its argument, defendant cites solely to Turner, 233 Ill. 2d 494, a recent Illinois

Supreme Court case. The plaintiff in Turner alleged that he was fired from his position as a

licensed respiratory therapist after he informed a surveyor from the Joint Commission on

Accreditation of Healthcare Organizations (Joint Commission) that his hospital’s respiratory

department did not conduct “immediate charting” after a patient had been seen in violation of the

Joint Commission standard. Id. at 497-98. He alleged his discharge for making this report to the

Joint Commission “ ‘violated public policy that encourages employees to report actions that

jeopardize patient health and safety.’ ” Id. at 498.

¶ 35     In rejecting the plaintiff’s claim, the court concluded plaintiff’s actions of informing the

surveyor of the hospital’s charting practice fell short of the “ ‘supreme court’s public-policy

threshold articulated in Palmateer.’ ” Id. at 506. The court found that neither Joint Commission

standards nor section 3 of the Medical Patient Rights Act (410 ILCS 50/3 (West 2006))

established a clear public policy that plaintiff’s discharge violated. Turner, 233 Ill. 2d at 505-06.
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¶ 36   We find Turner to be distinguishable from the current case before us. Unlike the statutes

in Turner, this case does present a clear statutory scheme which defendant’s alleged actions

sought to frustrate by terminating plaintiff. Both Illinois and the federal government have set up

programs to help citizens attend schools of higher education so that those individuals may gain

knowledge and better contribute to society. 20 U.S.C § 1070 et seq. (2002); 110 ILCS 945/2

(West 2016). This policy is effectively frustrated when institutions of higher learning terminate

those individuals charged with ensuring its instructors have the requisite knowledge to pass onto

students. We find plaintiff’s complaint demonstrates a clear mandate of public policy and reverse

the dismissal of plaintiff’s retaliatory discharge count.

¶ 37   In his second issue, plaintiff argues the circuit court erred in dismissing his

Whistleblower Act claim. The Whistleblower Act provides: “An employer may not retaliate

against an employee for refusing to participate in an activity that would result in a violation of a

State or federal law, rule, or regulation ***.” 740 ILCS 174/20 (West 2016). In order to sustain a

cause of action under the Whistleblower Act, a plaintiff must establish (1) a refusal to participate

in an activity that would result in a violation of a state or federal law, rule, or regulation and (2)

the employer retaliated against the employee because of said refusal. Id.; Sardiga v. Northern

Trust Co., 409 Ill. App. 3d 56, 61 (2011). Our courts have recognized the Whistleblower Act

extends protection to “employees who call attention in one of two specific ways to illegal

activities carried out by their employer. It protects employees who either contact a government

agency to report the activity or refuse to participate in that activity.” Sardiga, 409 Ill. App. 3d at

62.




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¶ 38      Before us, plaintiff argues that the second amended complaint sufficiently alleges a

“refusal to participate.” 3 This court has previously analyzed the language of the Act regarding

“refusal to participate” and concluded:

          “ ‘Refusing to participate’ means exactly what it says: a plaintiff who participates in an

          activity that would result in a violation of a state or federal law, rule, or regulation cannot

          claim recourse under the Act. 740 ILCS 174/20 (West 2004). Instead, the plaintiff must

          actually refuse to participate. Black’s Law Dictionary defines ‘refusal’ as ‘[t]he denial or

          rejection of something offered or demanded.’ Black’s Law Dictionary 1394 (9th ed.

          2009). Indeed, the very title of section 20, ‘Retaliation for certain refusals prohibited,’

          suggests that not every refusal qualifies for protection under the Act. 740 ILCS 174/20

          (West 2004). Furthermore, the Act protects employees who complain to a government

          agency about an activity that the employee reasonably believes constitutes a violation of

          a state or federal law, rule, or regulation. 740 ILCS 174/15 (West 2004). Thus, ‘refusing’

          means refusing; it does not mean ‘complaining’ or ‘questioning ***.’ ” (Emphasis

          added.) Id.

Even accepting the allegations in the second amended complaint as true and taking them in a

light most favorable to plaintiff, there is no allegation in the second amended complaint that

defendant offered or demanded plaintiff’s participation in the allegedly wrongful activity.

Plaintiff pleads that he was “intentionally excluded” and allowed “no input” into the decision to

hire or retain the unqualified instructors. While plaintiff alleges he refused “to cover things up,”

“be quiet,” and “look the other way,” there is no allegation the defendant asked, requested, or

demanded such action.


          3
           There is no allegation in the second amended complaint that plaintiff contacted a governmental
agency.
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¶ 39    Plaintiff’s brief does not mention Sardiga and instead argues that under the Act, “a

plaintiff does not need to plead that the defendant specifically asked the plaintiff to perform an

unlawful act.” In support of this argument, plaintiff only cites to Robinson v. Morgan Stanley,

No. 06 C 5158, 2011 WL 3876903 (N.D. Ill. Aug. 31, 2011). Federal cases interpreting Illinois

law have no precedential value in this state (Kelsay, 74 Ill. 2d at 182), and we decline to depart

from this court’s prior holding in Sardiga.

¶ 40    Other Illinois courts have reached similar conclusions regarding what is required to state

a claim under the Whistleblower Act. In Young v. Alden Gardens of Waterford, LLC, 2015 IL

App (1st) 131887, this court determined an employee adequately alleged a violation of the

Whistleblower Act, where the employer asked its employee to falsify patient records in violation

of the Nurse Practice Act (225 ILCS 65/70-5 (West 2010)). Young, 2015 IL App (1st) 131887,

¶¶ 51-56 (employee alleged she was constructively discharged for her refusal to follow her

supervisor’s request to falsify medical records). In Corah v. The Bruss Co., 2017 IL App (1st)

161030, we found plaintiff’s whistleblower claim deficient, in part, because “plaintiff

acknowledged that defendant never asked plaintiff to misstate where [the individual]’s injury

occurred” in violation of the Workers’ Compensation Act (820 ILCS 305/4(h) (West 2012)).

(Emphasis added.) Corah, 2017 IL App (1st) 161030, ¶ 19.

¶ 41    We adhere to the line of cases cited above that in order to state a claim under the

Whistleblower Act, there must be a request or demand by the employer that the employee engage

in the illegal or unlawful conduct. In this case, plaintiff fails to allege the defendant ever made a

request or demand he approve or sanction the hiring of the allegedly unqualified instructor.

Accordingly, he does not state a claim under the Whistleblower Act. 4


        4
        Because plaintiff failed to establish the first element of a whistleblower claim, we decline to
address whether the allege activity of the defendant constitutes “unlawful activity” as required to meet the
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¶ 42                                          CONCLUSION


¶ 43   For the reasons stated above, we reverse the dismissal of plaintiff’s retaliatory discharge


claim but affirm the dismissal of plaintiff’s whistleblower claim.


¶ 44   Affirmed in part and reversed in part.


¶ 45   Cause remanded. 





second element.
                                                 - 17 ­
