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01/06/88 Judith Shores, v. Senior Manor Nursing

January 6, 1988

JUDITH SHORES, PLAINTIFF-APPELLANT

v.

SENIOR MANOR NURSING CENTER, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

518 N.E.2d 471, 164 Ill. App. 3d 503, 115 Ill. Dec. 946 1988.IL.6

Appeal from the Circuit Court of Randolph County; the Hon. Carl H. Becker, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Judith Shores, brought an action against defendant, Senior Manor Nursing Center, Inc., for retaliatory discharge. Defendant filed a motion to dismiss the complaint for failure to state a cause of action, and the circuit court of Randolph County granted this motion and dismissed the cause with prejudice. Plaintiff appeals. For the reasons which follow, we reverse and remand.

In her complaint, plaintiff alleges that she was employed as a nurse's assistant at a nursing home operated by defendant when she reported to the administrator of the facility that the "full time charge nurse was improperly performing her functions as a nurse and that she was sleeping while on the job, was not supervising the administration of prescription drugs, was refusing to assist residents of the defendant nursing center after being notified by residents of needs and for endangering the health, welfare and safety of residents of the defendant nursing center." The complaint alleges that defendant discharged plaintiff in retaliation for reporting to the administrator about the nurse's performance. Plaintiff also alleges that "in the performance of her job duties the plaintiff attempted to further the public policy of the State of Illinois to provide for the safety and care of residents of nursing homes." Defendant filed a motion to dismiss plaintiff's complaint for failure to state a cause of action for retaliatory discharge. The circuit court subsequently dismissed plaintiff's cause of action with prejudice.

No cause of action should be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 506, 485 N.E.2d 372, 374, cert. denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641.) The allegations in the complaint are to be taken as true (108 Ill. 2d at 505, 485 N.E.2d at 374), and are to be interpreted in the light most favorable to the plaintiff. Wait v. First Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 705, 491 N.E.2d 795, 798.

The tort of retaliatory discharge is an exception to the general rule that an at-will employment is terminable at any time for any or no cause. The cause of action for retaliatory discharge is recognized when an employee is discharged in violation of a clearly mandated public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.) While there is no precise definition of the term "clearly mandated public policy," generally "it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. . . . matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed." (85 Ill. 2d at 130, 421 N.E.2d at 878-89.) Public policy can be found in the State's laws and judicial decisions. 85 Ill. 2d at 130, 421 N.E.2d at 878.

Plaintiff alleges that the public policy which has been violated here is the policy of protecting the health, safety and welfare of residents of nursing homes, and that this policy is expressed in the Nursing Home Care Reform Act of 1979 (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-101 et seq.). The Act establishes standards for the treatment and care of residents of long-term-care facilities, such as nursing homes, and section 3-101(1) of the Act specifically provides that the Department of Public Health (hereinafter the Department) shall establish a comprehensive system of licensure for long-term-care facilities for the purpose of "[protecting] the health, welfare, and safety of residents." (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4153-101(1).) Section 2-107 prohibits the abuse and neglect of residents of nursing homes. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4152-107.) Violations of the Act and of the rules promulgated thereunder are classified into three categories, with the classifications based upon the degree to which the violation affects the health, safety, or welfare of a facility resident. Ill. Rev. Stat. 1985, ch. 111 1/2, pars. 4151-129 through 4151-131.

Our supreme court, in the context of a retaliatory discharge action, has stated that "[there] is no public policy more important or fundamental than the one favoring the effective protection of the lives and property of citizens." (Palmateer v. International Harvester Co., 85 Ill. 2d at 132, 421 N.E.2d at 879.) By enacting the Nursing Home Care Reform Act, the legislature has made it clear that it is also the public policy of this State to provide special protection for the health, safety, and welfare of residents of nursing homes. Thus, plaintiff has invoked a clearly mandated public policy.

To effectuate this public policy found in the Act, the legislature has adopted provisions requiring those who work in nursing homes to report incidents of abuse and neglect. Section 2-107 of the Act provides: "An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident. It is the duty of any facility employee or agent who becomes aware of such abuse or neglect to report it as provided in 'The Abused and Neglected Long Term Care Facility Residents Reporting Act'." (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4152-107.) In addition to the duty to report under section 2-107 of the Act, section 3-610 provides: "A facility employee or agent which becomes aware of abuse or neglect of a resident prohibited by Section 2-107 shall immediately report the matter to the Department and to the facility administrator. A facility administrator who becomes aware of abuse or neglect of a resident prohibited by Section 2-107 shall immediately report the matter by telephone and in writing to the resident's representative, and to the Department. Any person may report a violation of Section 2-107 to the Department." (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4153-610.) Thus, in addition to the legislature's determination that it is the public policy of this State to provide special protection for the health, safety, and welfare of residents of nursing homes, the legislature has also determined that in order to effectuate this public policy, employees of nursing homes have a duty to report abuse and neglect of residents.

Therefore, we must conclude that discharging an employee of a nursing home for complying with her statutory duty to report abuse and neglect violates the underlying public policy of protecting the health, safety, and welfare of residents of nursing homes. Courts of this State have held that even when there is no statutory duty to report an apparent violation of the law, a person states a cause of action for retaliatory discharge by alleging he was discharged for reporting the apparent violation. In Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876, the supreme court held that the plaintiff had stated a cause of action for retaliatory discharge by alleging he was fired for reporting an apparent theft at his place of employment to law enforcement officials. The court stated that a citizen has no statutory duty "to take an active part in the ferreting out and prosecution of crime, but public policy nevertheless favors citizen crime-fighters." (85 Ill. 2d at 132, 421 N.E.2d at 880.) In Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746, 498 N.E.2d 575, this court held that the plaintiff had stated a cause of action by alleging he was discharged in retaliation for reporting to his superiors what he believed were violations of Federal securities laws. We stated that "[public] policy favors employees attempting to ensure management's compliance with the requirements of the law and public policy." (147 Ill. App. 3d at 754, 498 N.E.2d at 580.) If a person under no duty to report violations of the law possesses a cause of action for retaliatory discharge when he is discharged for reporting a violation, surely a person who does have such a duty must also possess a cause of action when discharged in retaliation for complying with this duty.

The foundation of the tort of retaliatory discharge lies in the protection of public policy. (Palmateer v. International Harvester Co., 85 Ill. 2d at 133, 421 N.E.2d at 880.) Plaintiff has sufficiently alleged that she was attempting to protect the public policy of ...


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