                               No. 2--06--0408       Filed 2/14/07
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

JACK CARTY,                            ) Appeal from the Circuit Court
                                       ) of De Kalb County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 03--L--45
                                       )
THE SUTER COMPANY, INC.,               ) Honorable
                                       ) Kurt P. Klein,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BYRNE delivered the opinion of the court:

       Plaintiff, Jack Carty, filed a two-count complaint against defendant, The Suter Company, Inc.,

alleging retaliatory discharge. The trial court granted summary judgment, holding that plaintiff cannot

state a cause of action, and plaintiff timely appealed. We reverse and remand.

                                           I. Background

       Plaintiff was employed by defendant, a manufacturer of food products, from May 18, 1987,

through July 1998, and from February 1999 until his termination on May 22, 2002. In count I of the

complaint, plaintiff alleged that from December 2000 through May 2002, plaintiff worked, on

average, 6 days per week for 11 hours per day and "rarely received a lunch break," in violation of the

One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)). On May 20, 2002, plaintiff

confronted the plant manager about the issue. On May 22, 2002, defendant terminated plaintiff.
No. 2--06--0408


Plaintiff alleged that he was discharged in retaliation for reporting the lunch-break violation to the

plant manager and that his discharge violates public policy.

        In count II, plaintiff alleged that around May 17, 2002, he saw several buttermilk containers

in the garbage with "use by" dates of May 25, 2002, and June 6, 2002. The buttermilk had been used

in salads bearing "use by" dates of June 24, 2002, and the salads had been shipped to customers. In

addition, plaintiff noticed that defendant had listed certain ingredients on a product label when those

ingredients were not in the product. According to plaintiff, defendant's "batch-making and labeling

practices were unlawful according to various federal laws and regulations." On May 20, 2002,

plaintiff confronted the plant manager about the "questionable" practices. On May 22, 2002,

defendant terminated plaintiff. Plaintiff alleged that he was discharged in retaliation for reporting his

concerns to the plant manager and that his discharge violates public policy.

        Plaintiff was deposed on December 9, 2003. His testimony was consistent with the allegations

of his complaint. Sometime thereafter, defendant filed a motion for summary judgment. The record

does not contain defendant's motion; however, it does contain plaintiff's response and defendant's

reply. From these documents, and from the transcript of the hearing on the motion, we can glean

defendant's argument for summary judgment. It appears that defendant argued that because plaintiff

did not report the violations of state and federal law to government agencies, he cannot state a claim

under the Illinois Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). In addition, defendant

argued that plaintiff cannot state a claim because the statutes involved, i.e., the One Day Rest in

Seven Act (820 ILCS 140/1 et seq. (West 2002)) and the Federal Food, Drug, and Cosmetic Act of

1938 (21 U.S.C. §342 (2000)), do not provide for a private right of action. In response, plaintiff




                                                  -2-
No. 2--06--0408


clarified that his cause of action arises under the common-law tort of retaliatory discharge, not the

statutes themselves.

        At the summary judgment hearing, the trial court initially noted that the facts do not present

a whistleblower situation and held that the Whistleblower Act does not apply. Thereafter, the court

granted defendant's motion, based on defendant's argument that the statutes at issue do not provide

for a private right of action. Plaintiff timely appealed.

                                              II. Analysis

        Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that

no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter

of law. 735 ILCS 5/2--1005(c) (West 2002). The party opposing summary judgment is not required

to prove his case at that stage, but he must present some factual basis arguably entitling him to a

judgment. Duncan v. Peterson, 359 Ill. App. 3d 1034, 1043 (2005). "If a plaintiff fails to establish

an element of the cause of action, then summary judgment for the defendant is proper." In re Estate

of Albergo, 275 Ill. App. 3d 439, 446 (1995). We review de novo an order granting summary

judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

        At the outset, it is necessary to clarify the precise issue before the court. In considering

defendant's motion for summary judgment, the trial court focused its analysis on whether a private

right of action can be implied under the One Day Rest in Seven Act (count I) and under the Federal

Food, Drug, and Cosmetic Act (count II). Because the court concluded that no implied private right

of action exists under either statute, it granted summary judgment for defendant. However, the trial

court missed the issue and, consequently, applied the wrong analysis. A review of plaintiff's

complaint makes clear that plaintiff is not attempting to bring a claim under either statute. Instead,



                                                  -3-
No. 2--06--0408


he is raising common-law retaliatory-discharge claims, citing the statutes only as the sources of the

applicable public policies. Our analysis proceeds accordingly.

        The common-law tort of retaliatory discharge was first recognized by our supreme court in

Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978). It is an exception to the general rule that an employer

may discharge an at-will employee at any time for any reason or for no reason. Palmateer v.

International Harvester Co., 85 Ill. 2d 124, 128 (1981). To state a claim of retaliatory discharge, a

plaintiff must allege "that he was discharged in retaliation for his activities and that his discharge

violates a clear mandate of public policy." Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 529 (1985);

King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 267 (2003). "The foundation of the

tort of retaliatory discharge lies in the protection of public policy." Palmateer, 85 Ill. 2d at 133. The

law in this area aims to strike a proper balance among employers' interests in operating their

businesses efficiently, employees' interests in earning a livelihood, and society's interests in seeing its

public policies carried out. Palmateer, 85 Ill. 2d at 129.

        Here, the parties raise no issue as to whether plaintiff was discharged in retaliation for his

activities. They do, however, contest whether his discharge violates clear mandates of public policy.

We hold that it does.

        While there is no precise definition of a clearly mandated public policy, it can be said generally

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

collectively. *** [A] matter must strike at the heart of a citizen's social rights, duties, and

responsibilities." Palmateer, 85 Ill. 2d at 130. Public policy has its origins in the state's constitution,

statutes, and judicial decisions. Palmateer, 85 Ill. 2d at 130. Public policy can also be found in

federal laws that are national in scope and affect citizens collectively. See Leweling v. Schnadig



                                                   -4-
No. 2--06--0408


Corp., 276 Ill. App. 3d 890, 893 (1995) (and cases cited therein). Where a plaintiff cites a statute

as the basis for his retaliatory-discharge claim, the test for determining if the plaintiff has a cause of

action "is whether the public policy clearly mandated by the cited provisions is violated by the

plaintiff's discharge." Barr, 106 Ill. 2d at 527. "The application of this test necessarily involves

determining what the public policy is behind the enactment or adoption of a particular provision. The

public policy underlying a statutory or constitutional provision is found by examining the history,

purpose, language and effect of the provision." Barr, 106 Ill. 2d at 527.

        In count I, plaintiff alleged that he was discharged for reporting to the plant manager that he

was not receiving his lunch break, in violation of the One Day Rest in Seven Act (820 ILCS 140/1

et seq. (West 2002)), which provides, in pertinent part:

                "Every employer shall permit its employees who are to work for 7½ continuous hours

        or longer *** at least 20 minutes for a meal period beginning no later than 5 hours after the

        start of the work period." 820 ILCS 140/3 (West 2002).

Whether this statutory provision provides a basis for a retaliatory-discharge cause of action is a matter

of first impression in Illinois.

        At least one other jurisdiction has considered the issue. In Yates v. Hertz Corp., 285 F. Supp.

2d 1104 (M.D. Tenn. 2003), the plaintiff sued his former employer, alleging wrongful termination on

the basis of retaliatory discharge in violation of public policy. The plaintiff's claim was based on a

Tennessee statute that provided for a 30-minute unpaid rest break for employees scheduled to work

six consecutive hours (Tenn. Code Ann. §50--2--103(d) (1999 & Supp. 2002)). Yates, 285 F. Supp.

2d at 1112. In holding that the plaintiff stated a claim for retaliatory discharge, the court reasoned

as follows: "[The plaintiff] grounds his claim on the exercise of a right that has the imprimatur of the



                                                   -5-
No. 2--06--0408


Tennessee legislature, having been memorialized in a statute [citation]. [The] plaintiff does not ask

the court to articulate public policy but merely to enforce it, as it has been established by the

legislature." Yates, 285 F. Supp. 2d at 1115. So too here. Our legislature has clearly mandated a

public policy that certain employees have statutory rights to 20-minute lunch breaks and that their

employers have statutory obligations to provide such breaks. As noted in Yates, to disallow plaintiff's

claim based on this statute would be to relieve defendant of its obligations under it. Yates, 285 F.

Supp. 2d at 1115. In holding for plaintiff, we are not declaring public policy; the legislature has

already done so. Thus, because count I establishes a cause of action for retaliatory discharge,

summary judgment for defendant on this count was improper.

        With respect to count II, plaintiff alleged that he complained to the plant manager that

buttermilk with expiration dates of May 25, 2002, and June 6, 2002, was used in salads that had "use

by" dates of June 24, 2002. Plaintiff also complained of mislabeling on certain food items. Plaintiff

alleged that his discharge for expressing his concerns to the plant manager violates public policy.

Although in his complaint plaintiff did not specify the "federal laws" that were the basis for the public

policy, the record is otherwise clear that plaintiff contends that defendant's practices violated sections

342 and 343 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§342, 343 (2000)). The

question for this court is not whether the cited provisions apply in this case or even whether plaintiff

pleaded sufficient facts establishing that defendant violated the provisions; rather, the question is

whether the provisions "enunciate a public policy that plainly covers the situation to which the

plaintiff objects." Stebbings v. University of Chicago, 312 Ill. App. 3d 360, 367 (2000). We hold

that they do.




                                                   -6-
No. 2--06--0408


        The primary purpose of the Federal Food, Drug, and Cosmetic Act is the protection of public

health. United States v. An Article of Drug ... Bacto-Unidisk ..., 394 U.S. 784, 798, 22 L. Ed. 2d

726, 736, 89 S. Ct. 1410, 1418 (1969). Compliance with laws affecting the health of the community

"is a public concern of the highest magnitude." Lanning v. Morris Mobile Meals, Inc., 308 Ill. App.

3d 490, 493 (1999). Indeed, "[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." Palmateer, 85 Ill. 2d

at 132. "Failure to protect an employee who raises health concerns, even to his immediate supervisor,

may stifle the willingness of other employees to complain of similar problems. To the protect the

public, this result must be avoided." Lanning, 308 Ill. App. 3d at 493.

        In order 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. Accordingly, we hold that the trial

court improperly granted summary judgment to defendant on count II.

                                            III. Conclusion

        Based on the foregoing, we reverse the order of the circuit court of De Kalb County granting

summary judgment for defendant, and we remand the case.

        Reversed and remanded.

        O'MALLEY and CALLUM, JJ., concur.




                                                   -7-
