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 defend ant Ed gewater Care & Rehabilitation Center, Inc., d/b/a Sheridan Shor es C are & Rehabilitation Center (Edgewater). This app eal raises a very narrow issue: namel y , whether the enactment of the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)) repealed by implication the common-lawaction for retaliatory discharge then existing in favor of an individual who is dischargedfrom her employment for reporting illegal or improper activityto someone other than a government or law enforcementNo. 1-06-3178

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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 fromher position as an admissions clerk in a nursing home operated byEdegewater for reporting activity she reasonably believed to be in violation of t he 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 plain tiff's complaint alleged that she was discharged for reporting both to her superior, Teneisha Peterson, andto Corey Nigro, the nursi ng home's administrator, that a

r esident of the home was being kept in the facility a gainst he r will. The plaintiff sought relief pursuant to the common-law tort of retaliatory discharge. Al thou gh Edgewater had filed an answer to the plaintiff's complaint, the circuit court, never theless, 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 commonlawclaimhad been preempted by the Whistleblower Act and that her complaint failed to state a cause of action under the statute. TheNo. 1-06-3178

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circuit court agreed and di smissed 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 w hich r elief couldbe granted. Burdinie v. Village of Glendale Heights , 139 Ill. 2d 501, 504-05, 565 N.E.2d 654. The issue presentedis 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 th e ci rcuit 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 illegalNo. 1-06-3178

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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 fileda workers' compensation claim. Thereafter, the tort evolved to afford relief to employees discharged for reporting criminal activityto law-enforcement authorities ( Palmateer v. International Harvester Co. , 85 Ill. 2d 124, 421 N.E.2d 876 (1981)), employees dischargedfor reporting criminal activity to the ir 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.2d372 (1985)). In the case of Barr v. Kelso-Burnett Co. , 106 Ill. 2d 520, 529, 478 N.E.2d 1354 (19 85), our supreme court held that an employee could state a vali d clai m for retaliatory discharge if she alleged that she was discharge d f rom 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 " di sclosing information to a government or law en forcem ent agency, where theNo. 1-06-3178

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employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or reg ulat ion" (740 ILCS 174/15 (West 2004)) and from retaliating ag ainst an employee "for refusing to participate in an activit y 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 senioritystatus as the employee would have had, but for the violation; (2) back pay, with interest; and (3) compensation for an y dam ages sustained as a result of the violation, including litigation costs, expert witness fees, and reasonable attorney’s fees" (740 ILCS 174/30 (West 2004)). Edgew at er 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 forNo. 1-06-3178

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retaliatorydischarge 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 Whi stleblower Act prempted the common-lawtort of retaliatory discharge for whistleblowing activities and, as a consequence, the plaintiffs in those actions hadno right to r eco very in the absence of any allegation or evidence that they were discharged for making complain ts 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 restedits pr eempti on holding on this court’s statement that the Whistleblower Act codified the common law re t aliatory discharge claimbased on whistleblowing activities. Jones , 2006 WL 3718053 at *3, citing Sutherland v. Norfolk Southern Ry. Co. , 356 Ill. App. 3d620, 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. 2dat 1054-55. Neither court, however, conducted an analysis ofNo. 1-06-3178

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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-lawremedy, the argument that the statute preempts the common-law action of retaliatory discharge basedon whistleblowing activities necessarily rests on the proposition that preemption was accomplished by implication. Repeal or preemption of an existing common-law remedy by implicat ion 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 wouldin 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 provi des 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 dischargedfor refusing to work under conditions which contravenedNo. 1-06-3178

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government-mandatedsafety codes ( Wheeler , 108 Ill. 2 d 502) . Although it can reasonably be argued that the Whistleblower Act codifiedthe common-law actions recog niz ed in Palmateer and Wheeler , nothing in the language of the statute or its legislative historyeven suggests that the legislature intended t o repe al 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 lawat the time that it enacted the Whistleblower Act, and, had the legislature intended to repeal anycommon-law rights, it would have been a simple thing for it to do. The Whistleblower Act affords far greater relie f th an 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 li tig ation expenses, including attorney fees, and are entitled to be reinstatedto their former positions with full seniority. However,

we fail to see how this statutory scheme creates any irreconcilableNo. 1-06-3178

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conflict with the persistence of a common-law remedy in favor of employee s n ot covered by the statute but who, nevertheless, are dischargedin 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 A ct did not, either explicitly or implicitly, preempt o r repeal the common-law right of action in favor of a n employee discharged in retaliation for reporting illegal activities to her superior under circumstances where her discharge violates a clearlymandated public policy. Consequently, we reverse the judgment dismissing the plaintiff's a ctio n on preemption grounds andremand this cause back to the circuit court for further proceedings. Reversed and remanded. WOLFSON, P.J., and SOUTH, J., concur.