                                                                            SIXTH DIVISION
                                                                            December 15, 2006


No. 1-05-3175


NEDELJKA BAJALO,                                     )
                                                     )               Appeal from the
                                                     )               Circuit Court of
                      Plaintiff-Appellee,            )               Cook County, Illinois,
                                                     )               County Department,
                                                     )               Law Division.
                                                     )
v.                                                   )               No. 05 L 383
                                                     )
                                                     )
NORTHWESTERN UNIVERSITY,                             )               Honorable
                                                     )               Ronald F. Bartkowicz,
                       Defendant-Appellant.          )               Judge Presiding.



       JUSTICE JOSEPH GORDON delivered the opinion of the court:

       Plaintiff, Nedeljka Bajalo, brought an action for retaliatory discharge against defendant,

Northwestern University, predicated upon defendant’s failure to renew her employment contract.

Defendant moved for judgment on the pleadings on ground that plaintiff failed to state a cause of

action because Illinois law does not recognize a claim for retaliatory discharge based upon the

failure to renew an expired employment contract. The circuit court denied defendant’s motion

on the pleadings, and certified the following question for interlocutory appeal (155 Ill. 2d R.

308): “May a contract employee who engaged in protected whistle blowing activity bring a

cause of action for retaliatory discharge when the employer fails to renew the employee’s written

contract [?]”
No. 1-05-3175

                                       I. BACKGROUND

       On January 12, 2005, plaintiff filed a complaint stating a single state-law claim for

retaliatory discharge. The complaint alleges the following pertinent facts. Defendant is an

institution of higher education that engages in medical research, substantially funded by the

federal government. Some of defendant’s medical research involves experiments performed on

live laboratory animals through its Center for Comparative Medicine (Center). As such,

defendant must comply with the Federal Animal Welfare Act (Act) (7 U.S.C. §2131 et seq.

(2002)), which aims “to insure that ‘animals intended for use in research facilities *** are

provided humane care and treatment’” (7 U.S.C. §2131(1) (2002)). Under the Act, the Secretary

of Agriculture “promulgat[es] standards” governing the “humane handling, care, treatment, and

transportation of animals by *** research facilities.” 7 U.S.C. §2143(a) (2002). As a research

facility falling under the purview of the Act defendant was required to register with the Secretary

of Agriculture (7 U.S.C. §2136 (2002)) and to establish an oversight committee to ensure that the

rules and regulations promulgated by the Secretary were being enforced (7 U.S.C. §2143(b)(1)

(2002)). As a result, defendant established the Northwestern University Animal Care and Use

Committee (NUACUC) to review and approve “protocols for the humane care *** of animals”

and “oversee all animal use” at defendant’s facilities.

       The complaint further alleges that plaintiff, a veterinarian, was hired by defendant on

May 1, 2000, to work for a one-year period as a senior research associate at defendant’s Center.

The complaint alleges that defendant renewed plaintiff’s appointment for a second one-year

period beginning in May 1, 2001. Defendant renewed plaintiff’s contract for a third one-year


                                                 2
No. 1-05-3175

period beginning May 1, 2002. According to the complaint, plaintiff performed “all terms,

conditions and requirements of her position in a satisfactory manner.”

       The complaint further alleges that beginning in September 2001, plaintiff became

concerned with “billing irregularities” and improper laboratory procedures which she believed

jeopardized the health and welfare of the animals, as well as the quality of research being

performed at the Center. For the next two years, plaintiff continued to address these concerns,

inter alia, to members of the NUACUC committee, her supervisors, her department chair, the

vice president of research, the director of finances and administration, inspectors of the United

States Department of Agriculture, and defendant’s provost.

       According to the complaint, on January 9, 2003, plaintiff received a letter of

insubordination from her supervisor. On January 29, 2003, plaintiff informed the United States

Department of Health and the National Institute of Health, in writing, of her concerns regarding

animal care and caretaker safety in defendant’s laboratories. On February 6, 2003, defendant

informed plaintiff that it would not renew her written contract when it expired on April 30, 2003.

The complaint further alleges that on the same day defendant “terminated” plaintiff by telling

her that she should not return to the Center or either campus of defendant for the remainder of

her appointment. Moreover, according to the complaint, in July 2003, plaintiff was offered a

position in defendant’s gastroenterology laboratory, but defendant’s human resources department

denied the laboratory’s request to employ plaintiff and informed the laboratory that the Center

would not “grant plaintiff any access to [its] animal care facility.”

       The complaint alleges that plaintiff was discharged from her employment in retaliation


                                                  3
No. 1-05-3175

for exercising her rights under the federal Animal Welfare Act. The complaint specifically

alleges that plaintiff was discharged because she reported alleged violations of the Act to her

supervisors, to the United States Department of Agriculture and to the National Institute of

Health. Some of the alleged violations that plaintiff reported included inadequate training of

laboratory personnel and lack of available medicine to relieve the unnecessary pain inflicted on

research animals. 9 C.F.R. §§2.32(a), (b), (c)(1) through (c)(4) (1994). According to the

complaint, under the Animal Welfare Act:

                “Training and instruction of personnel must include guidance in at least the

                following areas *** [m]ethods whereby deficiencies in animal care and treatment

                are reported, including deficiencies in animal care and treatment reported by an

                employee of the facility. No facility employee, committee member, or laboratory

                personnel shall be discriminated against or be subject to any reprisal for reporting

                violations of any regulation or standards under the Act. 9 C.F.R. § 2.32(c)(4).”

        On April 1, 2005, defendant filed its answer, denying that it discharged plaintiff and

asserting that plaintiff continued to be employed until the expiration of her contract on April 30,

2003. In support of this contention, defendant alleged that it continued to pay full salary and

benefits to plaintiff through the expiration of her employment contract. Defendant further denied

that it retaliated against plaintiff and instead alleged that it elected not to renew plaintiff’s

employment contract because she had demonstrated “repeated instances of flagrant

insubordination towards her supervisors.”

        On May 6, 2005, defendant moved for judgment on the pleadings pursuant to section 2-


                                                    4
No. 1-05-3175

615 (e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2002)) for failure to

state a claim upon which relief may be granted. At a hearing on that motion, defendant argued

that Illinois law does not recognize a claim of retaliatory discharge for the failure to renew an

expired employment contract.

       On August 26, 2005, the trial court denied defendant’s motion for judgment on the

pleadings. In doing so, the court held that in “those situations in which *** an employee has

been involved in a year-to-year contract renewal and if the employee is able to establish that the

failure to renew the contract was for exercising some protected right, that the doctrine of

retaliatory discharge would be applicable.” Recognizing that “this is a new and novel situation,”

the trial court certified the following question for interlocutory appeal pursuant to Supreme Court

Rule 308 (155 Ill. 2d R. 308): “May a contract employee who engaged in protected

whistleblowing activity bring a cause of action for retaliatory discharge when the employer fails

to renew the employee’s written contract [?]” Following a supervisory order from our supreme

court, we granted leave to appeal and now address this question.

       As with all questions of law, we review questions presented for interlocutory appeal

under a de novo standard. United General Title Insurance Co. v. AmeriTitle, Inc., 365 Ill. App.

3d 142, 147, 847 N. E. 2d 848, 852 (2006). In an interlocutory appeal, the court’s examination is

limited to the questions certified by the trial court, and a reviewing court will ordinarily not

expand the certified question under review to answer other questions that could have been

included but were not. United General Title, 365 Ill. App. 3d at 147, 847 N. E. 2d at 852.




                                                  5
No. 1-05-3175

                                           II. ANALYSIS

        In Illinois, in order to establish a tort claim for retaliatory discharge, a plaintiff must

show (1) that she has been discharged; (2) in retaliation for her activities; and (3) that the

discharge violates a clear mandate of public policy. Zimmerman v. Buchheit of Sparta Inc., 164

Ill. 2d 29, 35, 645 N. E. 2d 877, 881 (1995). Defendant’s primary assertion is that the failure to

renew a fixed-term employment contract does not equate to a “discharge.” Plaintiff contends

that the purpose of retaliatory discharge is to protect an employee’s right to enforce compliance

by the employer with public policy and that the term “discharge” should be given a liberal

interpretation so as not only to include the termination or dismissal of at-will employees, but also

the failure to renew a contract of an ongoing employee. We disagree.

       The tort of retaliatory discharge has a relatively short and unique history in our state.

After first being introduced, the tort followed a short period of expansion, but was quickly

curtailed. Illinois law has long upheld the “at-will” employment doctrine under which an

employer may terminate an employee at any time with or without cause. Buckner v. Atlantic

Plant Maintenance Inc., 182 Ill. 2d 12, 19, 694 N. E. 2d, 565, 569 (1998).

       The tort of retaliatory discharge has developed as an exception to this rule and was first

recognized in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 182, 384 N. E. 2d 353, 357 (1978), where

the supreme court held that there was a cause of action for retaliatory discharge for employees

who were terminated in retaliation for filing worker’s compensation claims. In that case, the

court noted that the public policy underlying the Workers’ Compensation Act would be seriously

undermined if employers were allowed “to discharge, or threaten to discharge,” employees who


                                                   6
No. 1-05-3175

sought relief under the Act. Kelsay, 74 Ill. 2d at 182, 384 N. E. 2d at 357. Moreover, the court

held that compensatory damages under contract law were ineffective in deterring the employer’s

otherwise absolute power to terminate at-will employees and provided that, under the new tort, a

claimant could seek punitive damages. Kelsay, 74 Ill. 2d at 186-187, 384 N. E. 2d at 359-60.

       Soon thereafter, in Palmateer v. International Harvester Co., 85 Ill. 2d 124, 133, 421 N.

E. 2d 876, 880 (1981), the supreme court extended the tort of retaliatory discharge beyond its

workers’ compensation origins to provide a remedy to an employee fired for reporting the

criminal activity of a coworker. In expanding the tort to include whistleblowing activity, the

court held that “[t]he foundation of the tort of retaliatory discharge lies in the protection of public

policy.”1 Palmateer, 85 Ill. 2d at 133, 421 N. E. 2d at 880. In Palmateer, the court also

acknowledged the shortcomings of the mutuality theory of at-will employment, specifically the

dichotomy between “large corporations conducting specialized operations” and “relatively

immobile workers who often have no other place to market their skills.” Palmateer, 85 Ill. 2d at

129, 421 N. E. 2d at 878. The court recognized that in an age of rising corporations, the

employer and employee no longer “stand on equal footing,” and that the policy driving the tort of

retaliatory discharge should be to strike a proper balance “among the employer’s interest in

operating a business efficiently and profitably, the employee’s interest in earning a livelihood,

and society’s interest in seeing its public policies carried out.” Palmateer, 85 Ill. 2d at 129, 421

N. E. 2d at 878.


       1
           Since then, the “whistleblower” cause of action has been codified in the Illinois

Whistleblower Act (740 ILCS 174/15 (West 2004)), effective January 1, 2004.

                                                   7
No. 1-05-3175

       In Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 150, 473 N. E. 2d 1280, 1284 (1984),

the supreme court further extended the retaliatory discharge cause of action to unionized

employees, by holding that an action for retaliatory discharge was available to them,

independently of their collective-bargaining agreements. In doing so, the court noted:

                “[T]here is no reason to afford a tort remedy to at-will employees[,] but to limit

                union members to contractual remedies under their collective bargaining

                agreements. [Citation.] Generally, if a union employee’s grievance goes to

                arbitration and the arbitrator does not find just cause for the employee’s discharge,

                the remedy will be simply job reinstatement and full back pay. [Citation.] If there

                is no possibility that an employer can be liable in punitive damages, not only has

                the employee been afforded an incomplete remedy, but there is no available

                sanction against a violator of an important public policy of the State. It would be

                unreasonable to immunize from punitive damages an employer who unjustly

                discharges a union employee, while allowing the imposition of punitive damages

                against an employer who unfairly terminates a nonunion employee. The public

                policy against retaliatory discharges applies with equal force in both situations.”

                Midgett, 105 Ill. 2d at 150, 473 N. E. 2d at 1284 .

       Since Midgett, however, the supreme court has declined to expand the tort any further.

Specifically, in Barr v. Kelso -Burnett Co., 106 Ill. 2d 520, 528, 478 N. E. 2d 1354, 1356-57

(1985), the supreme court refused to extend the tort to encompass discharge for the exercise of

the right to free speech, because the plaintiff failed to allege a violation of a clearly mandated


                                                  8
No. 1-05-3175

public policy, as “[t]here [was] nothing in either the Illinois Constitution or the Illinois Human

Rights Act to mandate the inclusion of the right of free speech into those rights which are

applicable to the employer-employee relationship.” In confining the scope of retaliatory

discharge causes of action, the court noted: “[T]his court has not, by its Palmateer and Kelsay

decisions, ‘rejected a narrow interpretation of the retaliatory discharge tort’ and does not

‘strongly support’ the expansion of the tort.” Barr, 106 Ill. 2d at 525, 478 N. E. 2d at 1356.

       Subsequent decisions of the supreme court further confined and narrowed the scope of

the tort, by their refusal to recognize a claim in any injury short of actual discharge. In Hartlein

v. Illinois Power Co., 151 Ill. 2d 142, 163, 601 N. E. 2d 720, 730 (1992), the supreme court

declined to expand the tort to encompass “constructive discharge.” In that case, plaintiff was

injured while working as an apprentice lineman and began receiving disability benefits in

accordance with the Illinois Workers’ Compensation Act. Hartlein, 151 Ill. 2d at 147, 601 N. E.

2d at 722-23. After continued vocational therapy showed that plaintiff could not be rehabilitated

to such an extent as would allow him to be able to continue working as a lineman, defendant

directed plaintiff to engage in a job search, but indicated that it had no intention of discharging

him. Hartlein, 151 Ill. 2d at 161, 601 N. E. 2d at 729. Plaintiff acknowledged that he would not

accept another job by means of such a search, unless it was comparable to the job he had with

defendant, but asserted that the retaliatory discharge cause of action should apply to the

“discharge process.” Hartlein, 151 Ill. 2d at 161, 601 N. E. 2d at 729. The supreme court

declined to extend the tort to the circumstances of this case and held that plaintiff had not stated a

claim of retaliatory discharge because mere advice to seek other employment does not constitute


                                                  9
No. 1-05-3175

actual discharge. Hartlein, 151 Ill. 2d at 162, 601 N. E. 2d at 729.

       Following the same rationale, in Zimmerman, 164 Ill. 2d at 37-38, 39, 645 N. E. 2d at

881-82, the supreme court further narrowed the scope of the tort by refusing to extend the cause

of action to retaliatory demotions, suspensions or any “circumstances in which an employee

suffers a loss of employment status or income or both, but is not terminated form her

employment altogether.” In that case, plaintiff alleged that in retaliation for seeking workers

compensation benefits, her employer demoted her and reduced her work time. Zimmerman, 164

Ill. 2d at 31, 645 N. E. 2d at 878. In refusing to extend the discharge element of the tort to these

circumstances, the court in Zimmerman explained that it did not wish to “dilute the discharge

requirement.” Zimmerman, 164 Ill. 2d at 39, 645 N. E. 2d at 882.

       Appellate court decisions have similarly followed this retrenchment in the retaliatory

discharge cause of action, refusing to extend it to any employment action short of actual

discharge. See Graham v. Commonwealth Edison Co., 318 Ill. App. 3d 736, 742, 742 N. E. 2d

858, 864 (2000) (granting summary judgment to employer on plaintiff’s allegations that after he

made complaints about safety violations at employer’s nuclear power station, he was demoted

from his managerial position to a position with lower pay and no supervisory duties, that he was

later transferred and denied promotions and all meaningful job responsibilities; court specifically

held that “discharge” in an employment context is commonly understood to mean “the release,

dismissal or termination of an employee” and does not encompass demotions); Welsh v.

Commonwealth Edison Co., 306 Ill. App. 3d 148, 153, 713 N. E. 2d 679, 683 (1999) (holding

that nuclear power plant employees could not maintain action for constructive retaliatory


                                                 10
No. 1-05-3175

discharge based on allegations that they were demoted, placed in new jobs at different locations

and suffered losses in pay and deterioration of working conditions after they reported safety

concerns to management and to Nuclear Regulation Commission); Hindo v. University of Health

Sciences/Chicago Medical School, 237 Ill. App. 3d 453, 460, 604 N. E. 2d 463, 468 (1992)

(expressly rejecting retaliatory demotion as a cause of action where medical school professor

alleged that he was demoted in retaliation for reporting fraudulent activities of school employees

at affiliated hospital); Melton v. Central Illinois Public Service Co., 220 Ill. App. 3d 1052, 1056,

581 N. E. 2d 423, 425 (1991) (rejecting plaintiffs’ claim that a “threat to discharge or discipline

short of discharge,” stated a valid cause of action, where plaintiffs were taking absences to obtain

medical treatment for job-related injuries covered by the workers’ compensation statute); Veit v.

Village of Round Lake, 167 Ill. App. 3d 350, 351-52, 521 N. E. 2d 145, 146-47 (1988) (holding

that Illinois does not recognize a claim of retaliatory harassment where plaintiff alleged that he

was placed in a less desirable work rotation, required to work on holidays, denied opportunities

to attend seminars to further his education, refused vacation time, and was generally abused and

mistreated in retaliation for filing a worker’s compensation claim); Stuzman v. Board of

Education of the City of Chicago, 171 Ill. App. 3d 670, 675, 525 N. E. 2d 903, 907 (1988)

(concluding that a retaliatory discharge cause of action does not encompass a 24-hour retaliatory

suspension of a school principal who was allegedly disciplined for his failure to cooperate with

the school’s legal department); Scheller v. Health Care Services Corp., 138 Ill. App. 3d 219, 225,

485 N. E. 2d 26, 29-30 (1985) quoting Beye v. Bureau of National Affairs, 59 Md. App. 642,

653, 477 A. 2d 1197, 1203 (1984) (refusing to extend the tort of retaliatory discharge to


                                                 11
No. 1-05-3175

situations where an ‘employer has deliberately caused or allowed the employee’s working

conditions to become so intolerable that a reasonable person in the employee’s place would have

felt compelled to resign’)2; New Horizons Electronics Marketing, Inc. v. Clarion Corporation of

America, 203 Ill. App. 3d 332, 336, 561 N. E. 2d 283, 285 (1990) (holding that an independent

contractor who alleged that it was terminated from its position as sales representative for

defendant, for its refusal to participate in illegal bribes and kickbacks could not maintain an

action for retaliatory discharge because the court has not “expanded the tort outside of the

employment setting,” (emphasis in original) and because plaintiff was not an employee but an

independent contractor).

        In light of the foregoing decisions following Barr, it is readily apparent that the interest

in protecting compliance with public policy espoused by Kelsay, Palmateer and Midgett will not

suffice to encompass retaliatory conduct by an employer short of actual discharge. Thus, in

Illinois the only decision involving an action for retaliatory discharge for a failure to renew an

employment contract has held that the tort of retaliatory discharge does not encompass the failure

to rehire. See Krum v. Chicago National League Ball Club, Inc., 365 Ill. App. 3d 785, 789-90,

851 N. E. 2d 621, 624-25 (2006). The rationale for this trend was best evinced by the court in

Zimmerman:

                 In our view [the expansion of the doctrine of retaliatory discharge] would replace

                 the well-developed element of discharge with a new, ill-defined, and potentially


       2
           The decision in Scheller was noted with approval by our supreme court in Hinthorn v.

Roland’s of Bloomington, Inc., 119 Ill. 2d 526, 530-31, 519 N. E. 2d 909, 911-12 (1988).

                                                 12
No. 1-05-3175

                all-encompassing concept of retaliatory conduct or discrimination. The courts

                then would be called upon to become increasingly involved in the resolution of

                workplace disputes which center on employer conduct that heretofore has not

                been actionable in common law or by statute. Zimmerman, 164 Ill. 2d at 39, 645

                N. E. 2d at 882.

       In Krum, 365 Ill. App. 3d at 789-90, 851 N. E. 2d at 624-25, this court affirmed the

dismissal of a claim for retaliatory discharge by a plaintiff whose fixed-term employment

contract expired without renewal. Plaintiff, Krum, was an assistant athletic trainer for the

Chicago Cubs working under a one-year employment contract. Krum alleged that following his

complaints to management regarding violations of the Illinois Athletic Trainers Practice Act (225

ILCS 5/4 (West Supp. 2005)), the Cubs “terminated” him in retaliation for his complaints, even

though they continued to pay his salary until the date his employment contract expired. Krum,

365 Ill. App. 3d at 787, 851 N. E. 2d at 623. The court held that consistent with the supreme

court’s desire to restrict the common law of retaliatory discharge, “absent a statutory basis,

contractual employees, such as Krum, cannot bring a claim for retaliatory discharge when

employers fail to renew an employment contract.” Krum, 365 Ill. App. 3d at 790, 851 N. E. 2d at

625. In doing so, the court noted that the Athletic Trainers Practice Act, upon which Krum

relied, did not contain any language “prohibiting retaliatory employment conduct,” and thus

dismissed plaintiff’s claim. Krum, 365 Ill. App. 3d at 790, 851 N. E. 2d at 625. In light of the

clear trend of retrenchment reflected in our supreme court decisions since Barr, we agree with the

position taken in Krum.


                                                 13
No. 1-05-3175

       In addition to Krum, other jurisdictions have refused to extend the common law

retaliatory discharge cause of action to encompass failures to renew a contract. In Luethans v.

Washington University, 894 S.W.2d 169, 171-72 (Mo. 1995), a case factually very similar to the

case at bar, the Missouri Supreme Court affirmed summary judgment for the defendant where

plaintiff pled a case for wrongful discharge but the uncontroverted facts established that he was a

contract employee whose contract term had expired.3 In that case, plaintiff was a veterinarian

hired by defendant Washington University on an annual appointment basis. Luethans, 894

S.W.2d at 170. After years of continuous appointment by the school, Washington University

informed plaintiff by letter that it would not renew his latest one-year employment contract upon

expiration. Luethans, 894 S.W.2d at 170. Plaintiff filed a claim of retaliatory discharge against

the university, alleging that defendant had retaliated against him in violation of the Animal

Welfare Act for his reporting abuses of laboratory animals to his superiors and discussing the

possibility of reporting the abuse to outside parties.4 Luethans, 894 S.W.2d at 170. The


       3
           Although at the time of the Luethans decision, Missouri had not expressly defined or

adopted the public policy exception to the at-will employment doctrine, the court noted that

numerous Missouri appellate courts had adopted the doctrine and concluded that “[f]or the

purposes of this opinion, we assume that the public policy exception to the at-will employment

doctrine exists.” Luethans, 894 S.W.2d at 171-72. Since Luethans, the Missouri Supreme Court

has adopted the doctrine with en banc approval (see McCoy v. Caldwell County, 145 S.W.3d

427, 429 (Mo. 2004)).
       4
           We note that, although just as in this case, the plaintiff in Leuthans alleged that he was

                                                   14
No. 1-05-3175

Missouri Supreme Court affirmed judgment for the university as a matter of law because plaintiff

had pled his cause of action under the theory of wrongful discharge, whereas his employment

with the university had expired under the employment contract. Luethans, 894 S.W.2d at 172.

The court rejected plaintiff’s argument that the failure to renew an employment contract,

“especially one from year to year,” should be treated the same as the discharge of an employee at

will. In doing so, the court noted:

                “[Defendant] ignores the significant difference in the relationship. An employer

                and an employee at will have an indefinite agreement that the employee will work

                only so long as both parties wish the relationship to continue. Either can end the

                relationship at any time without cause or liability, so long as the act of discharge

                is not otherwise ‘wrongful.’ A contractual employee, however, has a relationship

                with the employer that is controlled either by express or implied terms. Neither

                the employee nor the employer can vary those terms without cause or liability

                [that] may result.” Luethans, 894 S.W.2d at 172.

       Similarly, the California Court of Appeals has refused to recognize a claim for retaliatory

discharge by a contractual employee. In Daly v. Exxon Corp., 55 Ca. App. 4th 39, 45, 63 Cal.

Rptr. 2d 727, 730 (1997), that court held that an employee could not state a common law

retaliatory discharge cause of action for her employer’s failure to renew her fourth consecutive


retaliated against in violation of 9 C.F.R. 2.32(c)(4) (2006), the Missouri Supreme Court did not

consider whether that regulation provided whistleblowers a private cause of action for retaliatory

discharge.

                                                  15
No. 1-05-3175

one-year employment contract after she complained of safety violations because “she was not

fired, discharged, or terminated.” In doing so, the court noted, “[w]e are unaware of any case,

and [plaintiff] presents none, in which an employer was held liable in tort for refusing to renew

an employment contract that had expired by its own terms.” Daly, 55 Ca. App. 4th at 46, 63 Cal.

Rptr. 2d at 730. Similarly, relying on Daly, a California court recently held that the mere non-

renewal of a teacher’s employment contract does not constitute an adverse employment action

for purposes of stating a common law retaliatory discharge claim. See Motevalli v. Los Angeles

Unified School District, 122 Cal. App. 4th 97, 106, 18 Cal. Rptr. 3d 562, 567 (2004). We agree

with the rationale of these courts and find that it comports with the general trend of our supreme

court to narrow the scope of the Illinois retaliatory discharge claim. As such, we refuse to extend

the common law tort of retaliatory discharge beyond the confines defined in Krum.

       Plaintiff, however, presents us with one recent district court decision, Helm v. Board of

Trustees of Community College of District No. 504, No. 92 C 5118 (N.D. Ill. October 26, 1994),

and one Vermont Supreme Court opinion, LoPresti v. Rutland Regional Health Services, Inc.,

177 Vt. 316, 865 A.2d 1102 (2004), for the proposition that some courts have been willing to

extend the tort of retaliatory discharge to failures by an employer to renew an employment

contract.

       With regard to Helm, we first note that as a federal district court opinion, that decision is

not precedential or binding. See People v. Battiste, 133 Ill. App. 2d 62, 65, 272 N. E. 2d 808,

811-12 (1971) quoting United States ex. rel Lawrence v. Woods, 432 F. 2d 1072, 1075 (7th Cir.

1970) (noting that ‘because lower federal courts exercise no appellate jurisdiction over state


                                                16
No. 1-05-3175

tribunals, decisions of lower federal courts are not conclusive on state courts’). Furthermore,

although the district court in Helm denied defendant’s motion for summary judgment as to

plaintiff’s tort claim for retaliatory discharge, it provided no independent rationale for this

decision. Helm, slip. op at 7. Instead, the court merely relied on the reasons which it had already

discussed in context with a separate count of plaintiff’s complaint predicated on section 1983 of

the Civil Rights Act of 1991 (42 U.S.C. §1983 (West 2000)), which prohibited the employer, a

state institution, from acting under color of law and depriving plaintiff of the rights guaranteed to

her by the Constitution (42 U.S.C. §1983 (West 2000)), specifically by “discharging [her as] a

public employee or denying *** her a job benefit”on the basis of her political affiliation in

violation of the First Amendment (Emphasis added.) Helm, slip. op. at 4. The sole articulation

for the basis of the court’s ruling allowing plaintiff to proceed with her state retaliatory discharge

claim was made in the following statement: “Based upon the reasoning given supra, for Count I

[42 U.S.C. §1983 (2000), violation of first amendment rights], defendant’s motion for summary

judgment is denied as to Count IV [state retaliatory discharge].” Helm, slip. op. at 7. Unlike

Helm, no first amendment freedom of speech violations were raised in this case.

       We similarly find plaintiff’s reliance on LoPresti to be misplaced. In that case, plaintiff, a

physician, alleged that he was terminated for his refusal to refer his patients to certain specialists

whom he believed provided substandard care to his patients and in some cases performed

unnecessary invasive procedures. Lopresti, 177 Vt. at 323-24, 865 A.2d at 1109. Plaintiff was

employed under a contract, which specifically stated that termination could occur “[o]ne

[h]undred [e]ighty (180) days after written notice of termination with or without cause from


                                                  17
No. 1-05-3175

either party” to the other. Lopresti, 177 Vt. at 325, 865 A.2d at1110. The court in Lopresti

characterized employment under this agreement as being terminable at will. LoPresti, 177 Vt. at

325, 865 A.2d at 1110. While we might not have treated an agreement with a six-month notice

requirement in the same manner as LoPresti, in our case, the contract was phrased to explicitly

provide for a fixed one-year term of employment, which expired automatically after one year.

       However, plaintiff argues that even if we were to follow the reasoning in Krum, and

accept the limited reach of the common law retaliatory discharge cause of action, this limitation

would not apply to her case, because in her complaint she alleged she was discharged in

retaliation for her whistle blowing activities under the Animal Welfare Act (Act), which contains

express language barring any “discrimination” or “reprisal” against those reporting violations of

the Act. We disagree.

       Initially, we recognize that section 2.32(c)(4) promulgated as part of the Act does provide

specific language barring retaliation against plaintiff:

                        “(c) Training and instruction of personnel must include guidance in at

                least the following areas:

                                                       ***

                        (4) Methods whereby deficiencies in animal care and treatment are

                reported, including deficiencies in animal care and treatment reported by any

                employee of the facility. No facility employee, Committee member, or laboratory

                personnel shall be discriminated against or be subject to any reprisal for

                reporting violations of any regulation or standards under the Act.” (Emphasis


                                                  18
No. 1-05-3175

                added.) 9 C.F.R. § 2./--32(c) (1994).

Unlike the Athletic Trainers Practice Act, at issue in Krum, which “contain[ed] no language

prohibiting retaliatory employment conduct,” the language of section 2.32(c)(4) plainly prohibits

“discrimination against” or “any reprisal” for reporting violations of the Act.

       However, in a recent decision, in Moor-Jankowski v. The Board of Trustees of New

York, No. 96 Civ. 5997 (S.D.N.Y. August 10, 1998) (unreported decision), the Southern District

court of New York held that section 2.32(c)(4) does not provide a private cause of action for

whistleblowers because whistleblowers are not part of the class for whose special benefit

Congress enacted the Act, and because there is no evidence of either explicit or implicit

congressional intent to protect such persons under the Act. Although we are aware that we are

not bound by decisions of district courts (See Battiste, 133 Ill. App. 2d at 65, 272 N. E. 2d at

811-12), we find the reasoning of Moor-Jankowski to be persuasive and to be fully consistent

with our analysis of similar statutory and regulatory provisions.

       In finding section 2.32(c)(4) does not provide whistleblowers with a private cause of

action, the court in Moor-Jankowski first noted that the Animal Welfare Act was enacted in 1966

‘to insure that animals intended for use in research facilities ... are provided humane care and

treatment.’ Moor-Jankowski, slip. op. at 7 quoting 7 U.S.C.§2131(1) (2000). The court

reasoned that the Act explicitly vests the Secretary of Agriculture with the power to conduct

inspections and investigations to determine violations of the statute, and then levy fines, issue

cease and desist orders, suspend and revoke licenses, and institute criminal prosecutions against

violators. Moor-Jankowski, slip. op. at 9 quoting 7 U.S.C. §§2146, 2149 (2000) . Moreover, the


                                                 19
No. 1-05-3175

Act gives federal courts jurisdiction to enforce the Secretary’s orders and to prevent and restrain

violations of the Act and its regulations. Moor-Jankowski, slip. op. at 9 citing 7 U.S.C. §146

(2000).

          The district court in Moor-Jankowski took note, that unlike these explicit provisions,

which grant the Secretary enforcement power, the Act contains no provisions regarding

whistleblowers. Specifically, the court remarked:

                 “Nowhere does the [Act] provide for private citizens *** to file private causes of

                 action for violations of the statue or [of] any of its implementing regulations

                 promulgated by the Secretary. This silence is significant insofar as on numerous

                 occasions Congress has explicitly provided for private causes of action by

                 employees subjected to retaliation for reporting violations of federal law. See eg.,

                 5 U.S.C. § 2302 (b)(8); 15 U.S.C. § 2622 (Toxic Substance Control Act); 33

                 U.S.C. § 1367 (Water Pollution Control Act); 42 U.S.C. §6971 (Solid Waste

                 Disposal Act); 46 U.S.C. §2114 (creating private cause of action for seamen who

                 suffer retaliation for reporting to the Coast Guard violations of federal shipping

                 and maritime laws). The fact that Congress chose not to do so here weighs

                 against any finding of implicit or explicit congressional intent to [protect]

                 whistleblowers.” Moor-Jankowski, slip. op. at 8.

Accordingly, the court concluded that although regulation 2.32(c)(4) indirectly serves to protect

“whistleblowers,” it primarily aims to “further the [Act’s] central purposes and the Secretary’s

ability to effectively administer the [Act] by encouraging the exposure of animal abuse in


                                                  20
No. 1-05-3175

research facilities,” and thus declined to imply a private cause of action for whistleblowers.

Moor-Jankowski, slip. op. at 7.

       We agree with the rationale in Moor-Jankowski and find that it is consistent with the

decisions of our supreme court which have thus far been hesitant “to imply [private retaliatory

discharge] actions under a statute without explicit legislative authority.” Fisher v. Lexington

Health Care Inc., 188 Ill. 2d 455, 460-61, 468, 722 N. E. 2d 1115, 1118, 1121 (1999) (supreme

court refused to imply a private right of action for nursing home employees from section 3-608

of the Nursing Home Care Act (210 ILCS 45/3-608 (West 1996)) which prohibited the “transfer,

discharge, evict[ion], harasss[ment], dismissal or retaliation” against, among others, nursing

home employees who reported abuse and neglect of nursing home residents, because nursing

home employees were not members of the class that the Nursing Home Care Act was enacted to

protect, and their injuries were not the type the statue was designed to prevent); Metzger v.

DaRosa, 209 Ill. 2d 30, 35, 805 N. E. 2d 1165, 1168 (2004) (court declined to imply a private

cause of action for whistleblowers from section 19c.1 of the Personnel Code (20 ILCS 415/19c.1

(West 2002)), which prohibited retaliation against state employees for reporting violations of

“‘any law, rule, or regulation’” or “‘mismanagement, a gross waste of funds, and abuse of

authority, or a substantial and specific danger to pubic health or safety’” because the statute was

primarily intended to protect the public by providing efficient government administration, and

because no civil remedy was provided by the statute for those employees injured by its

violations).




                                                 21
No. 1-05-3175

                                III. COROLLARY MATTERS

        Plaintiff nevertheless requests that we remand to permit further amendment of her

pleadings. Although she does not articulate, other than by vague innuendo, what actions she may

yet plead, other than those which we have precluded by our answer to the certified question

presented here, we nevertheless remand to permit the trial court to consider whether in fact

viable causes of action remain available to plaintiff under the applicable rules of the Code of

Civil Procedure, including section 2-616 (735 ILCS 5/2-616 (West 2002)).

        For the above-stated reasons, we answer the certified question in the negative and reverse

the order of the trial court.

        Reversed and remanded for further proceedings.

        McNULTY and O’MALLEY, J. J., concur.




                                                22
