Illinois Lawyer Blog

The United States Court of Appeals for the Seventh Circuit recently weighed in on the "public policy" element Illinois retaliatory discharge plaintiffs must show. In Benders v. Bellows and Bellows, the plaintiff filed a three count complaint in federal court after her termination from the defendant law firm. The third count of her complaint alleged she was terminated in retaliation for threatening to report a dispute about her employement status to the IRS. The trial court granted the defendant's motion for summary judgment and Benders appealed.

The underlying facts involve a romantic relationship gone sour between the plaintiff[the office administrator] and one of the principals at the firm. In December of 2003, some months prior to plaintiff's termination, her status was changed from employee to independent contractor, pursuant to a discussion she had with a name partner at the firm. Benders claimed the change was only termporary and, after a short period of time, she was to regain her employment status. In any event, from that date until her discharge, her checks listed her as an "independent contractor".

In April of 2004, after receiving another paycheck noting her independent contractor status, plaintiff contacted Joel Bellows and reminded him that she wanted to refinance her home and needed her paystub to reflect her status as an employee. Several days later, after being informed that no change would be made, Benders advised the firm she intended to file a complaint with the IRS regarding her employment classification. Shortly thereafter, she was told to leave the firm.

In discussing the retaliatory count, the Court first noted that plaintiff was obligated to prove: 1) that she was discharged; 2) in retaliation for her activities and 3) in violation of a clear public policy. That public policy prong is not satisfied if only private interests are at stake. Defendant argued that Benders status as an employee or independent contractor involved only plaintiff's economic interests, and therefore, she couldn't show any violation of a public policy. The Court however, disagreed. The opinion notes that the federal laws classifying personnel as employee or independent contractors concern more than one employee's bank account. Those laws affect tax revenues collected by the federal government - and tax revenues are indeed a public concern. The trial court's order granting summary judgment on Count III was reversed.

Posted by Mark P. Loftus | Permalink | Email This Post

Posted In: RETALIATORY DISCHARGE

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The First Appellate Court recently came down with an interesting decision involving the Illinois Whistleblower Act, 740 ILCS 174/1. In Callahan v. Edgewater Care, the plaintiff, Melissa Callahan, claimed that she was fired from her position as an admissions clerk in a nursing home for reporting activity that she felt was in violation of state law. Specifically, Callahan alleged that she was discharged for reporting to two supervisors that one of the residents was being kept in the facility against his will. After her discharge, plaintiff filed a retaliatory discharge lawsuit. The defendants filed a Motion to Dismiss, arguing that the enactment of the Whistleblower Act preempted her retaliatory case. Defendant's Motion was granted. Ms. Callahan appealed.

The Appellate Court noted that the Whistleblower Act[effective 1/1/04] prohibits an employer from retaliating against an employee for disclosing information to a government or law enforcement authority where the employee believes the information discloses a violation of State of Federal law. The Court went on to note that a violation of the Act may result in 1) reinstatement of the employee; 2) back pay, with interest; and 3) compensatory damages including litigation fees, expert fees and attorney fees. The Defendant argued that the Whistleblower Act had, by implication, preempted existing common law remedies available to employees discharged for their activities. The Court found absolutely no support for defendant's position and reversed the trial judge's decision.

The enactment of the Whistleblower Act will provide some additional relief to employees who report misconduct to superiors. Traditionally, in order to prevail in a retaliatory discharge claim, an employee had to show 1) he was discharged for his activities and 2) that the discharge violated public policy. Certain courts however, were overly strict in exactly what constituted a violation of public policy and otherwise valid claims were dismissed. Now employees have another avenue of recovery available.

Posted by Mark P. Loftus | Permalink | Email This Post

Posted In: RETALIATORY DISCHARGE

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The United States Court of Appeals for the Seventh Circuit, located in Chicago, Illinois, recently discussed the proof a plaintiff must offer when prosecuting a retaliatory discharge case. In McCoy v. Maytag, Thomas McCoy brought a retaliatory case against his former employer, Maytag, for firing him after he filed a Workers Compensation Act. The Court, in the course of its opinion, set forth the elements a Illinois plaintiff must prove: 1) that he was the defendant's employee before the injury; 2) that the employee exercised a right granted by the Illinois Workers' Compensation Act and 3) that he was discharged from his employment with a causal connection to his filing the Workers' Compensation claim. The hard part in these cases is the third element - causation. The Court noted that "The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee." So what does that mean in English? The Court explained that in order to show pretext, "...a plainitff must offer evidence to indicate that the employer did not honestly believe the reasons it gave for its action and is simply lying to cover its tracks." Pretext "...means more than a mistake on the part of the employer; pretext means a lie, a specifically a phony reason for some action." In short, the plaintiff has to show the employer's reason for discharge was a lie. Not an easy thing to prove, as Mr. McCoy found out. The Seventh Circuit upheld the Trial Court's decision to grant summary judgment against plaintiff, ruling that the plaintiff's failure to provide regular updates to justify his absence from work[required under the Collective Bargaining Agreement]was a non-pretextual reason for the termination.

Posted by Mark P. Loftus | Permalink | Email This Post

Posted In: RETALIATORY DISCHARGE

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