Callahan v. Edgewater Care & Rehabilitation Center, Inc.

Opinion

SECOND DIVISION FILED: July 3, 2007

No. 1-06-3178

MELISSA CALLAHAN, ) APPEAL FROM THE ) CIRCUIT COURT OF Plaintiff-Appellant, ) COOK COUNTY ) v. ) ) No. 05 L 006795 EDGEWATER CARE & REHABILITATION CENTER, ) INC., d/b/a SHERIDAN SHORES CARE & ) REHABILITATION CENTER, ) HONORABLE ) BRIGID McGRATH, Defendant-Appellee. ) JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Melissa Callahan, appeals from an order of the

circuit court dismissing her common-law retaliatory discharge

action against the defendant Edgewater Care & Rehabilitation

Center, Inc., d/b/a Sheridan Shores Care & Rehabilitation Center

(Edgewater). This appeal raises a very narrow issue: namely,

whether the enactment of the Whistleblower Act (740 ILCS 174/1 et

seq. (West 2004)) repealed by implication the common-law action for

retaliatory discharge then existing in favor of an individual who

is discharged from her employment for reporting illegal or improper

activity to someone other than a government or law enforcement No. 1-06-3178

official. For the reasons which follow, we hold that it did not

and, therefore, reverse the judgment of the circuit court.

The facts necessary to resolve this appeal are not in dispute.

The claimant filed the instant action alleging that she was fired

from her position as an admissions clerk in a nursing home operated

by Edegewater for reporting activity she reasonably believed to be

in violation of the Nursing Home Care Act (210 ILCS 45/1-101 et

seq. (West 2004)) and section 300.620 of the Illinois

Administrative Code (77 Ill. Adm. Code § 300.620 (2007)).

Specifically, the plaintiff's complaint alleged that she was

discharged for reporting both to her superior, Teneisha Peterson,

and to Corey Nigro, the nursing home's administrator, that a

resident of the home was being kept in the facility against her

will. The plaintiff sought relief pursuant to the common-law tort

of retaliatory discharge.

Although Edgewater had filed an answer to the plaintiff's

complaint, the circuit court, nevertheless, entered an order

granting it leave to file a motion to dismiss. Thereafter,

Edgewater filed a motion pursuant to section 2-615 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)) seeking the

dismissal of the claimant's action on the grounds that her common-

law claim had been preempted by the Whistleblower Act and that her

complaint failed to state a cause of action under the statute. The

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circuit court agreed and dismissed the plaintiff's action. This

appeal followed.

Because this matter was dismissed pursuant to section 2-615 of

the Code, the only question before this court is whether the

plaintiff's complaint states a cause of action upon which relief

could be granted. Burdinie v. Village of Glendale Heights, 139

Ill. 2d 501, 504-05, 565 N.E.2d 654. The issue presented is one of

law; consequently, our review is de novo. T & S Signs, Inc. v.

Village of Wadsworth (1994), 261 Ill. App. 3d 1080, 1084, 634

N.E.2d 306.

In urging reversal of the circuit court's order dismissing her

action, the plaintiff asserts that the common-law action upon which

she based her complaint and an action under the Whistleblower Act

are not in such conflict that both cannot exist. She argues that

there is no presumption that a statutory enactment is intended to

act as an exclusive remedy or to abolish common-law actions, and

she asserts that neither the language of the Whistleblower Act nor

its legislative history evince an intent on the part of the

legislature to preempt her common-law claim. The plaintiff

concludes, therefore, that the circuit court erred in dismissing

her action as the enactment of the Whistleblower Act did not

preempt or repeal a common-law claim for retaliatory discharge in

favor of an employee who is discharged for reporting illegal

3 No. 1-06-3178

activity to her employer. We agree.

Our supreme court first recognized the tort of retaliatory

discharge in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d

353 (1978), a case in which an employer fired an employee after she

filed a workers' compensation claim. Thereafter, the tort evolved

to afford relief to employees discharged for reporting criminal

activity to law-enforcement authorities (Palmateer v. International

Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981)), employees

discharged for reporting criminal activity to their corporate

superiors (Petrik v. Monarch Printing Corp., 111 Ill. App. 3d 502,

444 N.E.2d 588 (1982)), and employees discharged for refusing to

work under conditions which contravened government-mandated safety

codes (Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485

N.E.2d 372 (1985)). In the case of Barr v. Kelso-Burnett Co., 106

Ill. 2d 520, 529, 478 N.E.2d 1354 (1985), our supreme court held

that an employee could state a valid claim for retaliatory

discharge if she alleged that she was discharged from her

employment in retaliation for her activities and that the discharge

violated the clear mandate of public policy.

In 2003, the legislature enacted the Whistleblower Act, which

became effective on January 1, 2004. This statute prohibits an

employer from retaliating against an employee for "disclosing

information to a government or law enforcement agency, where the

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employee has reasonable cause to believe that the information

discloses a violation of a State or federal law, rule, or

regulation" (740 ILCS 174/15 (West 2004)) and from retaliating

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 2004)). A violation of the

Whistleblower Act is a Class A misdemeanor (740 ILCS 174/25 (West

2004)), and an employee retaliated against in violation of sections

15 or 20 of the statute may bring a civil action against her

employer for all relief necessary to make her whole, including but

not limited to the following:

"(1) reinstatement with the same seniority status as

the employee would have had, but for the violation;

(2) back pay, with interest; and

(3) compensation for any damages sustained as a

result of the violation, including litigation costs,

expert witness fees, and reasonable attorney’s fees" (740

ILCS 174/30 (West 2004)).

Edgewater argues that the Whistleblower Act codified the

whistleblowing category of common-law retaliatory discharge claims

and, therefore, preempts any common-law claim based on such

activities. According to Edgewater, subsequent to the enactment of

the statute, a whistleblowing employee can only state a claim for

5 No. 1-06-3178

retaliatory discharge if she made her complaint of illegal activity

to some government or law enforcement agency. In support of its

argument in this regard, Edgewater relies heavily upon the holdings

in Jones v. Dew, 2006 WL 3718053 (N.D.Ill., Dec. 13, 2006) and

Riedlinger v. Hudson Respiratory Care, Inc., 478 F. Supp. 2d 1051

(N.D.Ill. 2007). In both Jones and Riedlinger, the federal

district courts held that the Whistleblower Act prempted the

common-law tort of retaliatory discharge for whistleblowing

activities and, as a consequence, the plaintiffs in those actions

had no right to recovery in the absence of any allegation or

evidence that they were discharged for making complaints to a

government or law enforcement agency. Jones, 2006 WL 3718053 at

*3-4; Riedlinger, 478 F. Supp. 2d at 1054-55. In Jones, the court

rested its preemption holding on this court’s statement that the

Whistleblower Act codified the common law retaliatory discharge

claim based on whistleblowing activities. Jones, 2006 WL 3718053

at *3, citing Sutherland v. Norfolk Southern Ry. Co., 356 Ill. App.

3d 620, 624, n4, 826 N.E.2d 1021 (2005) ("The ‘whistleblower’ cause

of action has since been codified in the Whistleblower Act"); see

also Bajalo v. Northwestern University, 369 Ill. App. 3d 576, 581,

n1, 860 N.E.2d 556 (2006). The Reidlinger court essentially relied

upon the reasoning and holding in Jones. Riedlinger, 478 F. Supp.

2d at 1054-55. Neither court, however, conducted an analysis of

6 No. 1-06-3178

the issue of when a statute preempts or repeals a common-law remedy

by implication.

As the Whistleblower Act does not expressly abrogate any

existing common-law remedy, the argument that the statute preempts

the common-law action of retaliatory discharge based on

whistleblowing activities necessarily rests on the proposition that

preemption was accomplished by implication. Repeal or preemption

of an existing common-law remedy by implication is not favored.

Shores v. Senior Manor Nursing Center, Inc., 164 Ill. App. 3d 503,

509, 518 N.E.2d 471 (1988). The rule has long been that a statute

will not be construed as taking away a common-law right existing at

the time of its enactment unless the pre-existing right is so

repugnant to the statute that the survival of the common-law right

would in effect deprive the statute of its efficacy and render its

provisions nugatory. Texas & Pacific Ry. Co. v. Abilene Cotton Oil

Co., 204 U.S. 426, 437, 27 S.Ct. 350, 51 L.Ed. 553 (1907); Reeves

v. Eckles, 77 Ill. App. 2d 408, 410, 222 N.E.2d 530 (1966).

In this case, such repugnance is not apparent. The common law

provides a remedy for employees discharged for reporting illegal

activities to a government or law-enforcement agency (Palmateer, 85

Ill. 2d 124), employees discharged for reporting illegal activities

to their superiors (Petrik, 111 Ill. App. 3d 502), and employees

discharged for refusing to work under conditions which contravened

7 No. 1-06-3178

government-mandated safety codes (Wheeler, 108 Ill. 2d 502).

Although it can reasonably be argued that the Whistleblower Act

codified the common-law actions recognized in Palmateer and

Wheeler, nothing in the language of the statute or its legislative

history even suggests that the legislature intended to repeal or

preempt the common-law rights of an individual discharged for

reporting illegal activities to her superiors. The sponsor of the

Whistleblowers Act in the Illinois House of Represenatives spoke in

terms of providing protection for those who report a violation of

the law to the authorities. Ill.H.R. Trans. 2003 Reg. Sess.No.63.

Nothing in his remarks suggest that he intended the legislation to

abrogate the rights of those who report illegal activity to their

employers. Presumptively, the legislature was aware of the common

law at the time that it enacted the Whistleblower Act, and, had

the legislature intended to repeal any common-law rights, it would

have been a simple thing for it to do.

The Whistleblower Act affords far greater relief than the

common law to employees retaliated against in violation of its

provisions. Individuals entitled to relief under the statute can,

in addition to traditional tort damages, recover litigation

expenses, including attorney fees, and are entitled to be

reinstated to their former positions with full seniority. However,

we fail to see how this statutory scheme creates any irreconcilable

8 No. 1-06-3178

conflict with the persistence of a common-law remedy in favor of

employees not covered by the statute but who, nevertheless, are

discharged in retaliation for whistleblowing activities in

violation of a clearly mandated public policy. The fact that

individuals discharged in retaliation for reporting illegal

activities to their superiors have no right of action under the

Whistleblower Act does not compel the conclusion that they have no

right of action at all.

For the reasons stated, we find that the enactment of the

Whistleblower Act did not, either explicitly or implicitly,

preempt or repeal the common-law right of action in favor of an

employee discharged in retaliation for reporting illegal activities

to her superior under circumstances where her discharge violates a

clearly mandated public policy. Consequently, we reverse the

judgment dismissing the plaintiff's action on preemption grounds

and remand this cause back to the circuit court for further

proceedings.

Reversed and remanded.

WOLFSON, P.J., and SOUTH, J., concur.