                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                   Collins v. Bartlett Park District, 2013 IL App (2d) 130006




Appellate Court            JOHN COLLINS, Plaintiff-Appellant, v. BARTLETT PARK DISTRICT,
Caption                    Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-13-0006


Filed                      September 20, 2013


Held                       On appeal from the dismissal of plaintiff’s claims for a violation of the
(Note: This syllabus       Whistleblower Act and retaliatory discharge arising from his challenge
constitutes no part of     of his supervisor’s decision to continue operating a ski lift at the park
the opinion of the court   district where he worked, the dismissal of his claim under the Act was
but has been prepared      upheld in the absence of an allegation that plaintiff refused to participate
by the Reporter of         in an illegal activity, but the dismissal of the retaliatory discharge claim
Decisions for the          was reversed, since plaintiff alleged that the Safety Act applicable to the
convenience of the         operation of ski lifts and regulations and inspections required by the
reader.)
                           Department of Labor were a clear mandate of a public policy of ensuring
                           skier safety, and the question of whether plaintiff was discharged for
                           insubordination or in retaliation for seeking enforcement of the safety
                           regulations was a matter for the trier of fact.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 12-L-59; the Hon.
Review                     Hollis L. Webster, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                  Stephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper,
Appeal                      Storm & Piscopo, of Geneva, for appellant.

                            Gregory R. James, David A. Moore, and Sara P. Yager, all of Laner
                            Muchin, Ltd., of Chicago, and Edward F. Dutton, of Park District Risk
                            Management Agency, of Lisle, for appellee.


Panel                       PRESIDING JUSTICE BURKE delivered the judgment of the court, with
                            opinion.
                            Justices Hutchinson and Jorgensen concurred in the judgment and
                            opinion.




                                               OPINION

¶1          Defendant, Bartlett Park District, terminated the employment of plaintiff, John Collins,
        after plaintiff challenged his supervisor’s decision to continue operating an allegedly
        defective ski lift at full capacity. Plaintiff filed a two-count amended complaint, alleging (1)
        retaliation in violation of section 20 of the Whistleblower Act (see 740 ILCS 174/20 (West
        2012)) and (2) the common-law tort of retaliatory discharge.
¶2          The trial court dismissed both claims under section 2-615 of the Code of Civil Procedure
        (Code) (735 ILCS 5/2-615 (West 2012)), and plaintiff appeals. We affirm the dismissal of
        the whistleblower claim, reverse the dismissal of the retaliatory discharge claim, and remand
        the cause for further proceedings.

¶3                                               FACTS
¶4           In his amended complaint, plaintiff alleged the following facts common to both claims.
        Defendant owns and operates the Villa Olivia Country Club and Ski Facility (Villa Olivia)
        in Bartlett. The ski facility includes chair lifts designed to transport skiers to the top of a ski
        hill. Each chair in the lift at issue holds up to four passengers.
¶5           From 1983 until late in 2010, Villa Olivia’s prior owner employed plaintiff, whose job
        title was assistant superintendent. Plaintiff’s duties included overseeing the day-to-day
        operations of the ski hill, maintaining the buildings, maintaining and repairing equipment for
        the ski hill and golf course, and maintaining and repairing the chair lifts to ensure their safe
        operation. Defendant purchased Villa Olivia in November 2010. Plaintiff reapplied for his
        position and was hired by defendant in December 2010.
¶6           The Carnival and Amusement Rides Safety Act (Safety Act) regulates the operation and
        maintenance of ski lifts in Illinois, including the chair lifts and other lifts at Villa Olivia. See

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       430 ILCS 85/2-2(4)(b) (West 2012) (“amusement ride” governed by the Safety Act defined
       to include “any ski lift, rope tow, or other device used to transport snow skiers”). The Safety
       Act charges the Department of Labor and the Carnival-Amusement Safety Board to
       “promulgate and formulate definitions, rules and regulations for the safe installation, repair,
       maintenance, use, operation, training standards for operators, and inspection of all
       amusement rides and amusement attractions as the Director finds necessary for the protection
       of the general public using amusement rides and amusement attractions.” 430 ILCS 85/2-6
       (West 2012). Accordingly, the Director of the Department of Labor adopted a regulation that
       implements the standards of “ANSI B-77.1” from the American National Standards Institute
       (ANSI), which is entitled “2006 Passenger Ropeways–Aerial Tramways, Aerial Lifts,
       Surface Lifts, Tows and Conveyors–Safety Requirements (2006)” (hereinafter ANSI Code).
       56 Ill. Adm. Code 6000.15(a)(1)(B) (2009).
¶7          On December 26, 2010, plaintiff discovered that the chair lift had a maintenance
       problem. Two worn sheave wheel liners on tower 3 caused the chair cable, when ascending
       the lift, to ride outside the sheave wheel assemblies. Plaintiff observed that the defect caused
       the chair lift’s rope grips to be in contact with the sheave flanges, outside the line sheave
       groove.
¶8          Plaintiff alleged that a chair lift operating this way would be a violation of sections
       4.1.3.3.2 and 4.1.3.3.3 of the ANSI Code. Furthermore, the haul rope grip no longer passed
       smoothly over and under the line sheaves as required by section 4.1.4.3.1 of the ANSI Code.
       On December 26, 2010, plaintiff drafted, signed, and delivered to defendant a handwritten
       description of the chair lift’s condition on that date. Plaintiff attached a copy of that
       document to the amended complaint.
¶9          To reduce the load on the system, plaintiff adopted a temporary safety measure of loading
       only two passengers on every other chair, rather than four passengers on every chair. This
       measure prevented the chair cable from riding outside the sheave wheel assembly and
       temporarily brought the chair lift into compliance with the ANSI Code.
¶ 10        Plaintiff reported the problem and his temporary solution to his supervisor, John Carlson,
       the parks department superintendent. Carlson decided to repair the system by replacing the
       two sheave wheel assemblies. Plaintiff alleged that such a replacement is not “the ordinary
       method of repairing the system” but would be effective if the correct parts were used.
       Plaintiff ordered the correct replacement parts, but the wrong parts arrived. By January 14,
       2011, the system could not be repaired as Carlson directed.
¶ 11       At defendant’s request, plaintiff tested the chair lift and learned that the cable, when the
       chairs were fully loaded, was still riding outside the sheave wheel assemblies. The condition
       had not changed since plaintiff’s discovery of the problem the previous month.
¶ 12        Plaintiff persisted in his opinion that safe operation of the chair lift required restricting
       the number of passengers and chairs that were loaded. Plaintiff instructed the chair lift
       operator to continue to load only every other chair with only two passengers. Plaintiff
       notified defendant of his findings and his directions to the operator.
¶ 13        On January 15, 2011, plaintiff arrived at work and discovered that the chair lift was
       operating at full capacity. Plaintiff immediately reiterated his instruction to the operator to

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       restrict the load.
¶ 14       The operator responded that Rita Fletcher, Villa Olivia’s executive director, had
       instructed him to load the chairs to full capacity. Plaintiff told the operator that running the
       chair lift that way was “wrong” and that he should load every other chair only.
¶ 15       Fletcher summoned plaintiff and informed him that she and Carlson had decided that the
       chair lift would be operated at full capacity, even though it had not been repaired yet.
       Fletcher reprimanded plaintiff for disobeying her orders.
¶ 16       Plaintiff told Fletcher that her proposed method of operating the chair lift was unsafe and
       violated the ANSI Code and the manufacturer’s instructions. Plaintiff also told Fletcher that
       he would report the violation to the Department of Labor.
¶ 17       Fletcher persisted in her order that the chair lift be operated at full capacity, and plaintiff
       responded that he could not obey that order. Thereafter, defendant excluded plaintiff from
       any decisions regarding the safety of the chair lift.
¶ 18       On January 17, 2011, a lift engineer inspected the system pursuant to the Safety Act.
       Plaintiff was not notified of the inspection. The engineer reported no problems with tower
       3, which plaintiff had found to be defective. However, the engineer reported two findings
       regarding tower 2. First, a lower ring that holds the bullwheel liner in place had a section
       where several welds were cracked. The ring was loose, which caused the wheel to make a
       “cyclical noise” on every rotation. The engineer recommended repairing the ring within four
       days and monitoring it closely. Second, a particular sheave unit needed alignment and likely
       needed new sheave liners, with one of the sheaves needing immediate attention. Alignment
       would be challenging, because the line gauge was spread. Plaintiff alleged that he was
       capable of performing the repairs recommended by the engineer, but defendant did not
       inform him of the recommendations.
¶ 19       On January 24, 2011, Carlson, acting on behalf of defendant, informed plaintiff that his
       employment was terminated. Plaintiff alleged, upon information and belief, that after his
       termination defendant adopted his safety measure of loading only two people on only every
       other chair of the lift.
¶ 20       Defendant filed a combined motion to dismiss plaintiff’s amended complaint, pursuant
       to sections 2-615, 2-619, and 2-619.1 of the Code (735 ILCS 5/2-615, 2-619, 2-619.1 (West
       2012)). On September 20, 2012, the trial court dismissed the whistleblower claim under
       section 2-615 for failing to state a claim. The court initially declined to dismiss the retaliatory
       discharge claim, but on December 5, 2012, the court reconsidered its decision and dismissed
       that claim under section 2-615 as well. Accordingly, plaintiff’s entire action was dismissed
       with prejudice. Plaintiff’s timely appeal followed.

¶ 21                                         ANALYSIS
¶ 22       Initially, we address plaintiff’s request to strike portions of defendant’s brief. Plaintiff
       asserts that defendant’s nature-of-the-case and statement-of-facts sections are inaccurate and
       argumentative. Illinois Supreme Court Rule 341(h)(2) (eff. July 1, 2008) requires an
       introductory paragraph stating (1) the nature of the action and of the judgment appealed from


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       and whether the judgment is based upon the verdict of a jury, and (2) whether any question
       is raised on the pleadings and, if so, the nature of the question. In defendant’s brief, the
       section labeled “nature of the case” consists of a 2½-page recitation of the facts, including
       an explanation of the parties’ arguments to the trial court. Such detail is excessive, and we
       consider it a violation of Rule 341(h)(2).
¶ 23       Illinois Supreme Court Rule 341(h)(6) (eff. July 1, 2008) requires a statement of facts,
       which shall contain the facts necessary to an understanding of the case, stated accurately and
       fairly without argument or comment, and with appropriate reference to the pages of the
       record on appeal. Although defendant’s statement of facts contains argument, it is not so
       argumentative that it must be stricken. We decline to strike the nature-of-the-case and
       statement-of-facts sections of defendant’s brief, but we disregard any inappropriate or
       unsupported material and any argument contained in those sections.

¶ 24                                     A. Whistleblower Act
¶ 25       In his whistleblower claim, plaintiff additionally alleged that (1) he had a good-faith
       belief that the chair lift was defective, creating an unsafe condition and violating specific
       sections of the ANSI Code; (2) he was justified in instructing the chair lift operator to operate
       the lift at less than full capacity to remedy the condition, despite the contrary orders of
       Fletcher and Carlson; and (3) defendant terminated plaintiff’s employment in retaliation for
       his directing the operator to run the lift at less than full capacity. Plaintiff contends that these
       allegations stated a claim of retaliation in violation of section 20 of the Whistleblower Act,
       and therefore his whistleblower claim should not have been dismissed under section 2-615
       of the Code. We disagree.
¶ 26       A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2012))
       challenges the legal sufficiency of a complaint, based on defects apparent on its face.
       Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). To review the legal sufficiency
       of a complaint, a court accepts as true all well-pleaded facts and all reasonable inferences that
       may be drawn from those facts and construes the allegations in the light most favorable to
       the plaintiff. Marshall, 222 Ill. 2d at 429. While a plaintiff must allege facts sufficient to
       bring a claim within a legally recognized cause of action, a cause of action should not be
       dismissed under section 2-615 unless it is clearly apparent that no set of facts can be proved
       that would entitle the plaintiff to recovery. Marshall, 222 Ill. 2d at 429-30.
¶ 27       Section 20 of the Whistleblower Act provides, in relevant part, that “[a]n 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 2012).
       The Appellate Court, First District, in a case directly on point, recently held that the language
       of section 20 is unambiguous and that, to state a claim, a “plaintiff must actually refuse to
       participate” in an activity that would violate a law or regulation. Sardiga v. Northern Trust
       Co., 409 Ill. App. 3d 56, 62 (2011). The term “refusing” under section 20 “means refusing;
       it does not mean ‘complaining’ or ‘questioning.’ ” Sardiga, 409 Ill. App. 3d at 62.
¶ 28       Although plaintiff has alleged that defendant knowingly decided to continue operating
       a defective chair lift in violation of a law or regulation, plaintiff has failed to allege that he

                                                   -5-
       actually refused to participate in that activity. Instead, plaintiff has alleged that, when he saw
       the chair lift operator loading the chairs to full capacity, he directed the operator to adopt his
       safety measure of running at one-quarter capacity. The operator refused to follow plaintiff’s
       directive, per the instructions of Fletcher and Carlson. Fletcher reprimanded plaintiff, and he
       took no further action to pursue his objection. Plaintiff did not allege that he was operating
       the chair lift or that defendant ordered him to do something that he actually refused to do.
       Plaintiff complained to and questioned the decision of Fletcher and Carlson to continue
       operating the chair lift at full capacity, but such protestations are not a “refusal to participate”
       under section 20 of the Whistleblower Act. See Sardiga, 409 Ill. App. 3d at 62.
¶ 29       Plaintiff has failed to allege that he actually refused to participate in an illegal activity,
       and therefore he has not stated a claim for retaliation under section 20. The trial court
       correctly dismissed the whistleblower claim pursuant to section 2-615 of the Code.

¶ 30                                   B. Retaliatory Discharge
¶ 31        Illinois follows the general rule that an at-will employee may be discharged “ ‘for any
       reason or no reason.’ ” Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009)
       (quoting Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 32 (1994)). Our supreme
       court, however, recognizes an exception to the general rule, in an action for retaliatory
       discharge. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159 (1992). “To state a valid
       retaliatory discharge cause of action, an employee must allege that (1) the employer
       discharged the employee, (2) in retaliation for the employee’s activities, and (3) that the
       discharge violates a clear mandate of public policy.” Turner, 233 Ill. 2d at 500. The
       exception is “a limited and narrow cause of action.” Turner, 233 Ill. 2d at 500. If the
       employer has a valid, nonpretextual basis for discharging the employee, the element of
       causation is not met. Hartlein, 151 Ill. 2d at 160. The employee must identify a clear and
       specific mandate of public policy as opposed to a broad, general, or vague statement that
       does not provide specific guidance or is prone to multiple interpretations. Turner, 233 Ill. 2d
       at 503. “Unless the employee identifies a clear mandate of public policy that is violated by
       the employee’s discharge, the complaint will not state a cause of action for retaliatory
       discharge.” Turner, 233 Ill. 2d at 503.
¶ 32        Generally, the issue of retaliation is a question for the trier of fact to resolve. Turner, 233
       Ill. 2d at 501 n.1. However, the issue of whether a public policy exists, and the related issue
       of whether the employee’s discharge undermines the stated public policy, are questions of
       law for the court to decide. Turner, 233 Ill. 2d at 501.
¶ 33        In his retaliatory discharge claim, plaintiff alleged that a clear mandate of public policy
       requires the operators of ski lifts to maintain and operate them safely and to cooperate with
       the Department of Labor in reporting safety violations and maintenance and operational
       issues. Plaintiff alleged that the public policy is rooted in the Safety Act, the regulations
       promulgated by the Department of Labor, the inspections mandated by the Department of
       Labor, and the common law that imposes on operators liability for unsafe ski lifts that cause
       injuries.
¶ 34        Plaintiff also alleged that he was discharged in retaliation for reporting the hazard to

                                                   -6-
       defendant, refusing to allow the ski lift to be operated in violation of safety standards, and
       informing defendant that continuing to operate the ski lift at full capacity was unsafe and a
       violation of the ANSI Code. Plaintiff concluded that his discharge violated the clear mandate
       of public policy that requires ski lifts to be maintained and operated safely.

¶ 35                         1. Section 2-615: Failure to State a Claim
¶ 36       Defendant argues that the retaliatory discharge claim failed to state a cause of action, and
       therefore the trial court correctly dismissed it under section 2-615 of the Code. Specifically,
       defendant argues that (1) no clear mandate of public policy was violated by plaintiff’s
       discharge and (2) plaintiff’s discharge was not retaliatory, because he had been engaging in
       insubordination. Plaintiff argues that his allegations stated a claim of retaliatory discharge,
       and therefore his claim should not have been dismissed. We agree.

¶ 37                                        a. Public Policy
¶ 38        Plaintiff alleged that a clear mandate of public policy requires the operators of ski lifts
       to maintain and operate them safely and to cooperate with the Department of Labor in
       reporting safety violations and maintenance and operational issues. Defendant characterizes
       plaintiff’s allegation as a broad, general, and vague statement about “safety procedures” or
       “public safety” that does not amount to a clear mandate of public policy.
¶ 39        Generally, the ascertainment of public policy and the determination of whether the policy
       is undermined by an employee’s discharge are questions of law for the courts. Turner, 233
       Ill. 2d at 501. Thus, our review is de novo. Turner, 233 Ill. 2d at 502.
¶ 40        The public-policy element of retaliatory discharge reflects the tort’s role in striking “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.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 502.
       Although the term “clearly mandated public policy” eludes precise definition, “it can be said
       that public policy concerns what is right and just and what affects the citizens of the State
       collectively.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 500. A clear mandate
       of public policy “must strike at the heart of a citizen’s social rights, duties, and
       responsibilities.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 501. Also, a clear
       mandate of public policy must be sufficiently specific to put employers on notice that
       employment decisions relating to the policy could expose them to liability. Turner, 233 Ill.
       2d at 503 (“An employer should not be exposed to liability where a public policy standard
       is too general to provide any specific guidance or is so vague that it is subject to different
       interpretations.” (Internal quotation marks omitted.)). Otherwise, evaluating the public-policy
       exception with generalized concepts of fairness and justice will result in an elimination of
       the at-will doctrine itself. Turner, 233 Ill. 2d at 502-03. Examples of public policies too
       general or vague to be enforced in an action for retaliatory discharge include the right to
       marry a coworker, product safety, promoting quality health care, and the Hippocratic Oath.
       Turner, 233 Ill. 2d at 503. The Turner court explained the importance of balancing the
       interests of employees, employers, and the public:

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           “Adherence to a narrow definition of public policy, as an element of a retaliatory
           discharge action, maintains the balance among the recognized interests. Employees will
           be secure in knowing that their jobs are safe if they exercise their rights according to a
           clear mandate of public policy. Employers will know that they may discharge their at-will
           employees for any or no reason unless they act contrary to public policy. Finally, the
           public interest in the furtherance of its public policies, the stability of employment, and
           the elimination of frivolous lawsuits is maintained. [Citation.]” Turner, 233 Ill. 2d at 507.
¶ 41       Clear mandates of public policy can be found in the constitution, statutes, judicial
       decisions, and safety regulations. Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502 (1985).
       In this case, the Safety Act defines “amusement ride” to mean “any ski lift, rope tow, or other
       device used to transport snow skiers.” 430 ILCS 85/2-2(4)(b) (West 2012). Defendant does
       not dispute that the Safety Act governs the safe operation and maintenance of the ski lifts at
       Villa Olivia. Pursuant to the Safety Act, the Department of Labor and the Carnival-
       Amusement Safety Board promulgated and formulated definitions, rules, and regulations for
       the safe installation, repair, maintenance, use, operation, operator training standards, and
       inspection of all amusement rides as necessary for the protection of the general public using
       them. See 430 ILCS 85/2-6 (West 2012). Specifically, the Director of Labor adopted a
       regulation that implements the standards of ANSI B-77.1, entitled “2006 Passenger
       Ropeways–Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors–Safety
       Requirements (2006).” 56 Ill. Adm. Code 6000.15(a)(1)(B) (2009). Plaintiff alleged that
       defendant’s insistence on operating the ski lift at full capacity violated many of those
       standards, which he cited in his amended complaint.
¶ 42       In Mitee Racers, Inc. v. Carnival-Amusement Safety Board, 152 Ill. App. 3d 812, 817
       (1987), we thoroughly examined the legislative history of the Safety Act and determined that
       the legislature intended to regulate all mechanized amusement rides presenting a potential
       danger to the public. We noted that the Safety Act was passed in response to numerous
       injuries that resulted from amusement-ride accidents, including a serious accident at Six
       Flags Over Great America near Gurnee. Mitee Racers, 152 Ill. App. 3d at 817. We held that
       “the legislature intended that the [Safety Act] be broadly applied to all mechanized
       amusement rides in the interests of preventing danger to children, or any other users of the
       rides.” Mitee Racers, 152 Ill. App. 3d at 819.
¶ 43       Consistent with Mitee Racers, we agree with plaintiff that the Safety Act, and the
       regulations promulgated thereunder, establish a clear mandate of public policy that operators
       maintain and operate ski lifts safely and to cooperate with the Department of Labor in
       reporting safety violations and maintenance and operational issues. This narrowly defined
       public policy protects the interest of preventing danger to skiers and other passengers of the
       chair lifts. We further conclude that plaintiff’s termination, as alleged in his retaliatory
       discharge claim, undermined that clear mandate of public policy by stifling the willingness
       of other employees to complain of similar problems.
¶ 44       While defendant has an interest in operating its ski facility efficiently and profitably, one
       can hardly imagine how that interest could outweigh society’s interest in seeing that ski lifts
       are operated in accordance with precise safety regulations. The public policy of protecting
       ski-lift passengers strikes at the heart of a citizen’s social rights, duties, and responsibilities.

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       See Turner, 233 Ill. 2d at 501. The ANSI Code violations that plaintiff alleged show that the
       public policy is sufficiently specific to put defendant on notice that its employment decisions
       relating to that policy could expose it to liability. See Turner, 233 Ill. 2d at 503.
¶ 45        Our decision is supported by Carty v. Suter Co., 371 Ill. App. 3d 784 (2007), in which
       the discharged employee alleged that he observed his employer, a food manufacturing
       company, using expired buttermilk and mislabeling its food products by listing certain
       ingredients that were not in the products. Carty, 371 Ill. App. 3d at 785. The employee
       alleged in his retaliatory discharge claim that the practices were “unlawful according to
       various federal laws and regulations.” Carty, 371 Ill. App. 3d at 785. The trial court granted
       the employer summary judgment.
¶ 46        On appeal, we reversed the summary judgment, observing that “ ‘[t]here is no public
       policy more important or more fundamental than the one favoring the effective protection
       of the lives and property of citizens’ ” and that the primary purpose of the federal Food,
       Drug, and Cosmetic Act (21 U.S.C. §§ 342, 343 (2000)) is to protect the public health. Carty,
       371 Ill. App. 3d at 789 (quoting Palmateer v. International Harvester Co., 85 Ill. 2d 124, 132
       (1981)). We held that “to protect the public from the dangers associated with the use of
       spoiled food products and the mislabeling of food products, employees of manufacturers of
       food products must be able to freely report their concerns, as plaintiff attempted to do.”
       Carty, 371 Ill. App. 3d at 789. Like the Food, Drug, and Cosmetic Act in Carty, the Safety
       Act creates a comprehensive scheme relating to public safety.
¶ 47        Defendant cites Turner for the proposition that skier safety is too general to be a clear
       mandate of public policy. In Turner, a respiratory therapist alleged that his hospital employer
       terminated him in retaliation for advising an accreditation surveyor regarding the timing of
       charting a patient’s file. Turner, 233 Ill. 2d at 498. Without alleging a violation of any
       particular law or regulation, the employee stated that the practice violated “ ‘sound nursing
       and medical practices,’ ” and “ ‘was not consistent with sound medical practices.’ ” Turner,
       233 Ill. 2d at 498. Our supreme court determined that the employee’s retaliatory discharge
       action required a more specific expression of public policy than “patient safety.” Turner, 233
       Ill. 2d at 503.
¶ 48        This case is distinguishable from Turner, where the retaliatory discharge claim failed to
       cite violations of specific standards or regulations. Here, plaintiff alleged that the clear
       mandate of public policy of ensuring skier safety is rooted in the Safety Act, the regulations
       promulgated by the Department of Labor, the inspections mandated by the Department of
       Labor, and the common law that imposes on operators liability for unsafe ski lifts that cause
       injury. In Turner, the plaintiff invoked subjective standards and practices, but in this case
       plaintiff alleged multiple violations of a comprehensive scheme of safety-related statutes and
       regulations.

¶ 49                                    b. Insubordination
¶ 50       Defendant also asserts that plaintiff engaged in insubordination, which created a
       nonpretextual basis for his termination, and therefore the element of causation is not met and
       his discharge was not retaliatory. Defendant argues that, even if taken as true, plaintiff’s

                                                -9-
       allegations establish that he was discharged for insubordination in that he attempted to
       countermand Fletcher’s order to the operator to operate the ski lift at full capacity, after
       Fletcher had consulted with Carlson about the issue. Whether defendant discharged plaintiff
       for insubordination or in retaliation for attempting to comply with safety regulations is a
       factual question to be answered by the finder of fact. See Turner, 233 Ill. 2d at 501 n.1 (the
       issue of retaliation is a question for the trier of fact to resolve). The existence of a factual
       issue precludes dismissal under section 2-615 of the Code. See Marshall, 222 Ill. 2d at 429-
       30 (a cause of action should not be dismissed under section 2-615 unless it is clearly apparent
       that no set of facts can be proved that would entitle the plaintiff to recovery).

¶ 51                        2. Section 2-619(a)(9): Affirmative Matter
¶ 52        Defendant next argues that the retaliatory discharge claim must be dismissed under
       section 2-619(a)(9) of the Code because (1) plaintiff did not have an objective, good-faith
       belief that the chair lift violated the law and (2) sections 2-201 and 2-109 of the Local
       Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745
       ILCS 10/2-201, 2-109 (West 2012)) immunizes defendant from liability for the termination.
       Section 2-619(a)(9) provides that an action may be dismissed when “the claim asserted
       against defendant is barred by other affirmative matter avoiding the legal effect of or
       defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). A ruling on a section 2-619
       motion must “ ‘interpret all pleadings and supporting documents in the light most favorable
       to the nonmoving party.’ ” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003)
       (quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). However, conclusions
       of law or fact unsupported by specific factual allegations are not to be taken as true. Buckner
       v. O’Brien, 287 Ill. App. 3d 173, 176 (1997), aff’d, 182 Ill. 2d 12 (1998).
¶ 53        A ruling on a motion to dismiss pursuant to section 2-619(a)(9) is reviewed de novo. Van
       Meter, 207 Ill. 2d at 368. In reviewing a ruling on a motion to dismiss under section 2-
       619(a)(9), the relevant inquiry is “ ‘whether the existence of a genuine issue of material fact
       should have precluded the dismissal or, absent such an issue of fact, whether dismissal is
       proper as a matter of law.’ ” Sandholm v. Kuecker, 2012 IL 111443, ¶ 55 (quoting Kedzie &
       103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)).

¶ 54                              a. Good-Faith Belief of Violation
¶ 55       Courts examine both the intent of the employee and the motive of the employer in
       evaluating retaliatory discharge actions based on whistleblowing. Undoubtedly, the intent of
       the employee to blow the whistle is vital to a claim of retaliatory discharge. Michael v.
       Precision Alliance Group, LLC, 2011 IL App (5th) 100089, ¶ 23. When a court evaluates the
       intent of the employee, the test is whether the employee acted on a good-faith belief that the
       employer was violating the law. Michael, 2011 IL App (5th) 100089, ¶ 24. Defendant
       contends that the allegations in plaintiff’s retaliatory discharge claim establish that he lacked
       a good-faith belief that defendant was violating the law. However, whether plaintiff had a
       good-faith belief that defendant’s operation of the ski lift violated the law is a question for
       the finder of fact to decide. As in the case of a section 2-615 motion to dismiss, the existence

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       of a factual issue precludes dismissal under section 2-619(a)(9) of the Code. See Chandler
       v. Illinois Central R.R. Co., 207 Ill. 2d 331, 341 (2003) (the existence of a genuine issue of
       material fact precludes dismissal under section 2-619).

¶ 56                                      b. Tort Immunity Act
¶ 57        Finally, defendant argues that the retaliatory discharge claim warrants dismissal under
       section 2-619(a)(9) of the Code because sections 2-201 and 2-109 of the Tort Immunity Act
       confer immunity from liability for plaintiff’s termination. Section 2-201 of the Tort Immunity
       Act provides that “[e]xcept as otherwise provided by Statute, a public employee serving in
       a position involving the determination of policy or the exercise of discretion is not liable for
       an injury resulting from his act or omission in determining policy when acting in the exercise
       of such discretion even though abused.” 745 ILCS 10/2-201 (West 2012). Our supreme court
       has recognized that section 2-201 “offers the most significant protection afforded to public
       employees under the Act.” Arteman v. Clinton Community Unit School District No. 15, 198
       Ill. 2d 475, 484 (2002).
¶ 58        Additionally, section 2-109 of the Tort Immunity Act provides that “[a] local public
       entity is not liable for an injury resulting from an act or omission of its employee where the
       employee is not liable.” 745 ILCS 10/2-109 (West 2012). Together, sections 2-201 and 2-109
       provide discretionary immunity to public entities. See Arteman, 198 Ill. 2d at 484 (“Because
       ‘[a] local public entity is not liable for an injury resulting from an act or omission of its
       employee where the employee is not liable’ [citation], this broad discretionary immunity
       applies to the entities themselves.” (Internal quotation marks omitted.)).
¶ 59        Relying upon Smith v. Waukegan Park District, 231 Ill. 2d 111 (2008), plaintiff argues
       that sections 2-201 and 2-109 of the Tort Immunity Act do not afford defendant immunity
       for retaliatory discharge. In that case, the employee sued his employer, the Waukegan Park
       District (District), for retaliatory discharge because he was terminated after filing a claim
       under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2000)). Our supreme
       court held that sections 2-201 and 2-109 of the Tort Immunity Act did not entitle the District
       to dismissal of the retaliatory discharge claim pursuant to section 2-619(a)(9) of the Code.
¶ 60        The employee suffered a work-related injury that required medical treatment and time
       off work, and he filed a workers’ compensation claim. Upon the employee’s return to work,
       the District insisted that he submit to a drug and alcohol test. When the employee refused,
       his supervisor terminated his employment. The complaint alleged that the drug-test demand
       was “retaliatory harassment” for filing the workers’ compensation claim and that the
       discharge was retaliatory.
¶ 61        Advocating dismissal under section 2-619(a)(9), the District argued that it was immune
       under section 2-109 of the Tort Immunity Act because the supervisor made the termination
       decision and only a municipal employer, and not its employees, can be liable for the tort of
       retaliatory discharge. Smith, 231 Ill. 2d at 115. Our supreme court disagreed, emphasizing
       that “it is not the public entity’s employee who causes the retaliatory discharge. Rather, it is
       the employer. Section 2-109 only grants immunity to a public entity from ‘an injury resulting
       from an act or omission of its employee where the employee is not liable.’ ” (Emphasis in

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       original.) Smith, 231 Ill. 2d at 117 (quoting 745 ILCS 10/2-109 (West 2002)). Concluding
       that section 2-109 did not afford the District immunity, the Smith court held that “section 2-
       109 immunity does not apply in cases of retaliatory discharge because the employer, not the
       employee, ultimately causes the injury.” Smith, 231 Ill. 2d at 117.
¶ 62         Alternatively, the District argued that the combined effect of sections 2-201 and 2-109
       of the Tort Immunity Act gave the District discretionary immunity because the supervisor’s
       termination decision was a discretionary act and a determination of policy. Smith, 231 Ill. 2d
       at 114. The District concluded that section 2-201 immunized the supervisor and that the
       District was correspondingly immune pursuant to section 2-109. Again, the supreme court
       disagreed, reiterating its position that “this argument fails because it incorrectly views the
       employee as the pertinent actor when it is the employer who ‘acts’ within the meaning of
       section 2-109 in a retaliatory discharge.” Smith, 231 Ill. 2d at 118.
¶ 63         In determining that the Tort Immunity Act did not confer immunity on the District, the
       Smith court emphasized that (1) section 4(h) of the Workers’ Compensation Act prohibits
       any employer from discharging an employee for exercising his workers’ compensation rights
       (820 ILCS 305/4(h) (West 2002)) and (2) section 2-101(c) of the Tort Immunity Act leaves
       unaffected the liability, if any, of a local public entity or public employee under the Workers’
       Compensation Act (745 ILCS 10/2-101(c) (West 2002)). Smith, 231 Ill. 2d at 119. The Smith
       court stated that “[w]ithout expressing an opinion on firings in general by public entities, we
       declare, under established Illinois law, public entities possess no immunized discretion to
       discharge employees for exercising their workers’ compensation rights.” Smith, 231 Ill. 2d
       at 119.
¶ 64         Defendant argues that Smith denies immunity under sections 2-201 and 2-109 of the Tort
       Immunity Act only in retaliatory discharge cases where the retaliation is provoked by the
       filing of a workers’ compensation claim. Defendant distinguishes Smith from this case,
       where plaintiff’s discharge allegedly was based on a disagreement with management over
       the method of operating the ski lift. Defendant draws a distinction without a difference. The
       rationale of Smith applies equally to this case, even though the statutory safeguards of section
       4(h) of the Workers’ Compensation Act and section 2-101(c) of the Tort Immunity Act do
       not lend additional support to plaintiff’s retaliatory discharge claim.
¶ 65         Consistent with Smith, we agree with plaintiff that sections 2-201 and 2-109 of the Tort
       Immunity Act are not affirmative matter defeating plaintiff’s retaliatory discharge claim. As
       in Smith, section 2-109 immunity does not apply to this claim of retaliatory discharge,
       because defendant, not Fletcher or Carlson, ultimately caused the alleged injury to plaintiff.
       See Smith, 231 Ill. 2d at 117. Neither Fletcher nor Carlson is the “pertinent actor” because
       it is defendant that “acted” within the meaning of section 2-109 in a retaliatory discharge. See
       Smith, 231 Ill. 2d at 118. Our conclusion that defendant is not immune from liability for
       plaintiff’s discharge obviates the need to determine whether the acts of Fletcher and Carlson
       actually were discretionary.

¶ 66                                    CONCLUSION
¶ 67      For the preceding reasons, the dismissal of plaintiff’s whistleblower claim is affirmed,

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       the dismissal of plaintiff’s retaliatory discharge claim is reversed, and the cause is remanded
       for further proceedings consistent with this opinion.

¶ 68      Affirmed in part and reversed in part; cause remanded.




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