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King v. Senior Services Associates

June 30, 2003

MARTY W. KING, PLAINTIFF-APPELLANT,
v.
SENIOR SERVICES ASSOCIATES, INC., AND BETTE SCHOENHOLTZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. No. 01-LA-345 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

UNPUBLISHED

Plaintiff, Marty W. King, appeals from the order of the trial court granting the motion to dismiss of defendants, Senior Services Associates (SSA) and Bette Schoenholtz. We reverse in part, affirm in part, and remand.

In October 2001, King filed a two-count complaint alleging retaliatory discharge against SSA (count I) and Schoenholtz (count II). Both defendants filed a motion to dismiss, pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2000)), which the trial court granted. This appeal followed.

King contends that the trial court erred in granting defendants' motion to dismiss. When the legal sufficiency of a complaint is challenged by a section 2--615 motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994). On review of a section 2--615 dismissal, this court must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. T&S Signs, 261 Ill. App. 3d at 1083. The motion should be granted only if the plaintiff can prove no set of facts to support the cause of action. T&S Signs, 261 Ill. App. 3d at 1083. This process does not require the court to weigh findings of fact or determine credibility; therefore, this court is not required to defer to the trial court's judgment, and we will review the matter de novo. T&S Signs, 261 Ill. App. 3d at 1084.

In her complaint, King alleged that Schoenholtz was the executive director of SSA, a not-for-profit corporation engaged in investigating allegations of elder abuse. SSA was an "Elder Abuse Provider Agency" charged with implementing "the public policy of the State of Illinois, to provide for the protection of the senior citizens of the State of Illinois, and to provide for a reporting of abuse cases, all as reflected in the Elder Abuse and Neglect Act [(Act) (320 ILCS 20/1 et seq. (West 2000))] of the State of Illinois." King was hired by SSA as a protective service coordinator in June 1996. In February 1999, King received a report that a senior citizen named Elsie Ottens was being abused and financially exploited by Jacqueline Swaney, another employee of SSA. King and other SSA employees began an investigation, which led to an investigation by the Kane County sheriff's department. Swaney was subsequently indicted and convicted of criminal charges.

SSA and Schoenholtz continued Swaney's employment after her indictment, expanded her duties, "and otherwise provided protection and assistance" to Swaney. King and other employees advised Schoenholtz that Swaney's continued employment was inappropriate and "compromised" SSA. As a "direct and proximate result" of King's investigation of Swaney, Schoenholtz "began a course of conduct designed to harass and drive" King from her employment at SSA. Schoenholtz's conduct included: (1) searching King's files "solely for the purpose of trying to determine sufficient standards" to terminate King; (2) "[a]rbitrarily" criticizing King and announcing that she was going to take "punitive measures" against King and anyone else involved in the investigation of Swaney; (3) writing a memo suggesting that King should seek other employment; (4) demoting King to the position of ombudsman; and (5) otherwise engaging "in a course of conduct designed to drive [King] from her employment." King refused to resign, and she was terminated in June 2001, allegedly for failure to properly discharge her duties. However, this was only a cover, and she was actually terminated for " 'blowing the whistle' " on Swaney.

King alleged that Illinois has a public policy to provide for the protection of senior citizens and to provide for the reporting of abuse cases. This policy is reflected in the Act. SSA was an Elder Abuse Provider Agency charged with implementing this policy.

In order to establish a cause of action for retaliatory discharge, a plaintiff must demonstrate that she was discharged in retaliation for her activities and that the discharge violated a clear mandate of public policy. Fiumetto v. Garrett Enterprises, Inc., 321 Ill. App. 3d 946, 949 (2001). Retaliatory discharge actions have traditionally been allowed in two situations: (1) when an employee is discharged for seeking workers' compensation benefits; and (2) when an employee is discharged for reporting misconduct by the employer. Fiumetto, 321 Ill. App. 3d at 949. Our supreme court has consistently sought to restrict the common- law tort of retaliatory discharge, emphasizing that an employer may discharge an at-will employee for any or no reason, except when the discharge violates a clearly mandated public policy. See Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 467 (1999).

There is no public policy more basic, and nothing more implicit in the concept of ordered liberty, than the enforcement of the state's criminal code. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 132 (1981); Vorpagel v. Maxell Corp. of America, 333 Ill. App. 3d 51, 54 (2002). King alleged that Schoenholtz "began a course of conduct designed to harass and drive [King] from her employment" as a direct and "proximate result of [King's] having promoted, encouraged and aided" the investigation of Swaney. Eventually, King was terminated for allegedly failing to properly discharge her duties; however, these allegations were a "cover for the purpose of penalizing [King] for 'blowing the whistle' " on Swaney. Taking these allegations as true, and drawing all reasonable inferences in King's favor, we conclude that King clearly stated a cause of action for retaliatory discharge. King was terminated for "blowing the whistle" on a co-employee who was eventually convicted of criminal offenses.

SSA and Schoenholtz argue that, for several reasons, King is not a "whistleblower." Defendants argue that King could not be a whisteblower because she did not bring allegations of abuse to light; she merely received a report from someone else and passed it along. This argument has no merit. We note that there is no requirement that a whistleblower be the first person to discover or report a violation; she only has to cooperate in a criminal investigation. See Vorpagel, 333 Ill. App. 3d at 54. King received a report that Swaney was abusing and financially exploiting Ottens, investigated the report, then notified law enforcement authorities. These actions are clearly cooperation in a criminal investigation.

Defendants also argue that King is not a whistleblower because she did not report any misconduct by SSA or Schoenholtz. Defendants cite no authority for the proposition that the subject of the report must be the employer or the plaintiff's supervisor. Indeed, in the seminal Palmateer case, the supreme court found a cause of action to exist but informed the reader only that the plaintiff supplied information that "an IH [International Harvester] employee might be involved in a violation of the Criminal Code." Palmateer, 85 Ill. 2d at 127. Presumably, the supreme court would have provided more information on the "IH employee" had that employee's identity been a factor. We find that no such identity of the parties is required.

Similarly unavailing is defendants' argument that a whistleblower's report must allege wrongdoing connected with employment. In Vorpagel, the plaintiff cooperated with a criminal investigation into a sexual relationship between his supervisor and the supervisor's daughter, which led to various criminal charges. This court held that the importance of enforcing criminal laws applies "with equal force whether or not the alleged crime is connected with a plaintiff's employment." Vorpagel, 333 Ill. App. 3d at 54. King's report of Swaney's misconduct was the action of a whistleblower, and we find no merit to defendants' contention.

Assuming arguendo that a common-law cause of action did not lie in this case, the legislature may provide a right of action for retaliatory discharge through the enactment of a statute, and such a right may be either expressly granted or implied in the language of the statute. See Fisher, 188 Ill. 2d at 459-60. An implied right of action may be found where: (1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff's injury is one that the statute was designed to prevent; (3) a private right of action is consistent with the underlying purpose of the statute; and (4) implying a private right of action is necessary to provide an adequate remedy for violations of ...


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