2019 IL 123594

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 123594, 123599)

KENRICK ROBERTS, Appellee and Cross-Appellant, v. THE BOARD OF TRUSTEES OF 

COMMUNITY COLLEGE DISTRICT NO. 508, Appellant and Cross-Appellee.

Opinion filed May 23, 2019.

CHIEF JUSTICE KARMEIER delivered the judgment of the court, with 

opinion.

Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the 

judgment and opinion.

Justice Neville took no part in the decision.

OPINION

¶ 1 Plaintiff, Kenrick Roberts, brought this action in the circuit court of Cook 

County to recover damages from defendant, the Board of Trustees of Community 

College District No. 508, d/b/a City Colleges of Chicago, following his termination 

as director of medical programs at Malcolm X College, one of seven institutions of 

higher education operated by defendant. Plaintiff’s complaint, as amended, was in 
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three counts. Count I asserted a cause of action for retaliatory discharge. Count II 

alleged violation of section 20 of the Whistleblower Act (740 ILCS 174/20 (West 

2014)). Count III sought recovery based on wrongful termination. 

¶ 2 Defendant moved to dismiss the retaliatory discharge and Whistleblower Act 

counts pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 

(West 2014)). The circuit court granted that motion, dismissed both counts with 

prejudice, and ultimately made an express written finding under Illinois Supreme 

Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason for delaying the 

appeal. 

¶ 3 On appeal, the appellate court affirmed the circuit court’s dismissal of 

plaintiff’s Whistleblower Act claim but reversed its dismissal of his claim for 

retaliatory discharge. 2018 IL App (1st) 170067. Both plaintiff and defendant then 

petitioned this court for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Apr. 1, 2018). We 

granted their respective petitions and consolidated the appeals. 

¶ 4 For the reasons that follow, we hold that the appellate court was correct to 

affirm dismissal of plaintiff’s Whistleblower Act claim but that it erred in reversing 

the dismissal of plaintiff’s claim for retaliatory discharge. We therefore affirm in 

part, reverse in part, and remand for further proceedings.

¶ 5 BACKGROUND

¶ 6 We take the following statement of facts largely from the appellate court’s 

recitation of the allegations in plaintiff’s second amended complaint.

¶ 7 Defendant operates seven colleges located in Chicago, one of which is Malcolm 

X College (Malcolm X). At all relevant times, plaintiff was the director of medical 

programs at Malcolm X. As director of medical programs, plaintiff’s job duties and 

responsibilities included vetting potential instructors to teach various courses and 

curricula. Plaintiff was also responsible for ensuring that instructors assigned to 

teach various courses, including but not limited to HeaPro 101, met the appropriate 

accreditation standards and had the correct qualifications to teach their assigned 

courses and curricula. HeaPro 101 includes the instruction of phlebotomy and 

electrocardiograms (EKG).
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¶ 8 On or about January 15, 2015, after becoming aware of complaints that the 

instructor assigned to teach HeaPro 101 was unqualified, plaintiff met with that 

instructor to discuss her qualifications. During the course of their meeting, the 

instructor admitted that she had never taught phlebotomy before, that she was 

unfamiliar with the requirements and certifications necessary to become a 

phlebotomist, that phlebotomy was not her area of expertise, and that she was not 

certified in phlebotomy. 

¶ 9 Plaintiff concluded that the instructor was not qualified to teach HeaPro 101 or 

the related curricula. After reaching this conclusion, he e-mailed his direct 

supervisors, Dr. Micah Young, the dean of health sciences and career programs at 

Malcolm X, and Dr. Mario De La Haye, the associate dean of health sciences and 

career programs at Malcolm X, to complain that an unqualified instructor had been 

assigned to the faculty without his input. His e-mail stated:

“In compliance with the City Colleges of Chicago policy and the College of 

Health Science credentialing standards and requirements it is my responsibility 

as Program Director of HeaPro 101 to review, evaluate and approve the 

recommendation of each faculty member that is approved to teach in a program 

which I am the director. Taking into consideration I had no input into the 

department decision to appoint a nurse to teach HeaPro 101 without my review 

of the credentials and necessary certifications and licenses put our programs 

and students at risk. Please note that this is a breach of the standards that were 

developed to ensure that students obtain the best outcomes moving forward 

with their education in the medical field. Please note I am very concerned about 

the direction in which we are traveling and wish to discuss this matter.”

After receiving plaintiff’s e-mail, Dr. Young e-mailed Dr. Anthony Munroe, the 

President of Malcolm X, as well as the college’s provost, relaying plaintiff’s 

concerns about the unqualified instructor assigned to teach HeaPro 101 and 

questioning how to address the issue. Plaintiff also made verbal complaints directly 

to Dr. Munroe regarding the assignment of an unqualified instructor to HeaPro 101. 

He also protested that he had been intentionally excluded from the selection 

process and stated that he refused to support the assignment.

¶ 10 On February 25, 2015, plaintiff e-mailed Dr. Munroe; Dr. Christopher 

Robinson-Easley, the vice president of the college; and the college’s associate 
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provost, stating that the instructor had admitted to never having taught phlebotomy 

before. The e-mail further indicated that plaintiff had since learned that this 

unqualified instructor had abandoned HeaPro 101 and advised that another 

unqualified instructor, one who was not properly certified to teach the EKG portion 

of the course, had been assigned to complete the remainder of HeaPro 101. Plaintiff 

also continued to complain that he had been excluded from the selection process of 

both unqualified instructors despite his job responsibilities as director of medical 

programs to vet and ensure the qualifications of the assigned instructors.

¶ 11 Upon receipt of plaintiff’s e-mail, Dr. Robinson-Easley, who plaintiff alleges 

was responsible for selecting and assigning the unqualified instructors to teach 

HeaPro 101, requested that plaintiff meet with her. After receiving Dr. 

Robinson-Easley’s request, plaintiff e-mailed the executive director of labor and 

employee relations for the college, stating that he wanted to document that he felt 

uncomfortable about meeting with Dr. Robinson-Easley in light of his complaints 

about the unqualified instructor. 

¶ 12 Despite his discomfort, plaintiff met with Dr. Robinson-Easley the same day. 

According to plaintiff, his complaints upset her, and she was unwilling to address 

the problem. Thereafter, he was kept out of important meetings, discussions, and 

decisions regarding programs that were within his area of responsibility as director 

of medical programs.

¶ 13 Plaintiff continued to complain to Dr. Munroe about the unqualified HeaPro 

101 instructors and defendant’s failure to address and rectify the problem. On June 

15, 2015, the newly hired associate dean of health sciences and career programs at 

Malcolm X, Roy Walker, told plaintiff that Dr. Robinson-Easley “has an axe to 

grind against [him]” because of his complaints regarding the assignment of the 

unqualified instructors. 

¶ 14 On June 28, 2015, Dr. Munroe instructed plaintiff to file an equal employment 

opportunity complaint against Dr. Robinson-Easley for retaliating against him by 

keeping him out of important meetings and decisions in connection with his 

complaints about the assignments of unqualified instructors. Plaintiff filed the 

equal employment opportunity complaint form the same day. Approximately six 

weeks later, on August 7, 2015, plaintiff was advised that he was terminated from 

his director of medical programs position. No reason for the termination was given. 
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Up to that point, plaintiff had never been advised nor received any indication that 

there were any issues or concerns regarding his performance or conduct. He had 

never been reprimanded, never been given notice of the need for improvement of 

his performance, and never been notified that he had engaged in any type of 

improper conduct. This litigation followed.

¶ 15 As noted at the outset of the opinion, plaintiff’s complaint, as amended, was in 

three counts. In count I, a claim for common-law retaliatory discharge, plaintiff 

alleges the Higher Education Act of 1965 (HEA) (20 U.S.C. § 1070 et seq. (2012)) 

establishes a clearly mandated public policy of enabling students to obtain the 

benefits of a postsecondary education through the financial help of federal and 

state-funded programs and that defendant violated this public policy when it 

terminated plaintiff due to his complaints regarding the improper appointment of 

unqualified instructors, which he feared violated various provisions of the HEA 

and defrauded students. 

¶ 16 In count II, which alleges a violation of section 20 of the Whistleblower Act 

(740 ILCS 174/20 (West 2014)), plaintiff claims he was terminated in retaliation 

for his refusal to support defendant’s decision to appoint unqualified instructors. 

Plaintiff further contends the appointment of the unqualified instructors violated 

various provisions of the HEA and defrauded students. 

¶ 17 In count III, for wrongful termination, plaintiff asserts he was terminated in 

retaliation for filing an equal employment opportunity complaint against Dr. 

Robinson-Easley regarding his complaints about the assignment of the unqualified 

instructors.1

¶ 18 Defendant filed a motion to dismiss counts I and II pursuant to section 2-615 of 

the Code of Civil Procedure. The circuit court granted the motion and dismissed 

both counts with prejudice. Count III, the wrongful termination claim, was not 

challenged and remains pending. 

¶ 19 At that time, plaintiff did not request leave to amend his complaint and, instead, 

requested the inclusion of language pursuant to Illinois Supreme Court Rule 304(a) 

 1

Only count III, the wrongful termination claim, alleges that defendant retaliated against 

plaintiff for filing an equal employment opportunity complaint. The filing of the equal employment 

opportunity complaint is not the basis of count I, the retaliatory discharge claim.
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(eff. Mar. 8, 2016). The circuit court granted plaintiff’s request and entered an order 

finding that there was no just reason to delay the appeal. Plaintiff then filed a timely 

notice of appeal. As noted above, the appellate court reversed the dismissal of the 

retaliatory discharge claim alleged in count I but affirmed the dismissal of the 

whistleblower claim under count II. 2018 IL App (1st) 170067. The viability of 

count III, for wrongful termination, was not raised nor addressed. 

¶ 20 ANALYSIS

¶ 21 The parties’ consolidated appeals from the appellate court’s judgment call on us 

to consider whether counts I and II of plaintiff’s complaint, as amended, were 

properly dismissed by the circuit court pursuant to section 2-615 of the Code of 

Civil Procedure (735 ILCS 5/2-615 (West 2014)). A section 2-615 motion to 

dismiss challenges the legal sufficiency of a complaint. In reviewing the 

sufficiency of the complaint, we take all well-pleaded facts as true and construe the 

allegations in the complaint in the light most favorable to the plaintiff. A cause of 

action should not be dismissed under section 2-615 unless it is clearly apparent that 

no set of facts can be proved that would entitle the plaintiff to recover. Our review 

of an order granting a section 2-615 motion to dismiss is de novo. Henderson 

Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 61. 

¶ 22 We begin our discussion with the viability of plaintiff’s claim for retaliatory 

discharge in count I. Under Illinois common law, an employer may discharge an 

employee-at-will with or without cause. Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 

525 (1985). Courts have acknowledged, however, that an employer’s ability to 

discharge an employee without cause in an oppressive manner could undermine a 

significant public policy. Michael v. Precision Alliance Group, LLC, 2014 IL 

117376, ¶ 30. To maintain a proper balance between an employer’s interests in 

efficiently and profitably operating a business, society’s interest in assuring its 

public policies are followed, and an employee’s interest in earning a livelihood, the 

courts have recognized a cause of action for retaliatory discharge. Palmateer v. 

International Harvester Co., 85 Ill. 2d 124, 129 (1981). It is a limited and narrow 

exception to the general rule that employees are at-will. Fellhauer v. City of 

Geneva, 142 Ill. 2d 495, 505 (1991).
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¶ 23 To state a claim for retaliatory discharge, an employee must plead that (1) the 

employer discharged the employee, (2) the discharge was in retaliation for the 

employee’s activities, and (3) the discharge violates a clearly mandated public 

policy. Michael, 2014 IL 117376, ¶ 31. In the case before us, defendant does not 

challenge the sufficiency of plaintiff’s complaint with regard to the first two of 

these requirements. Its contention is that count I was fatally defective and therefore 

properly dismissed because plaintiff fails to include adequate allegations regarding 

requirement three, that the discharge of plaintiff violated a clearly mandated public 

policy. 

¶ 24 To succeed in a retaliatory discharge claim, the public policy alleged by a 

plaintiff must be found in the state or federal constitutions and statutes and, when 

they are silent, in Illinois or federal case law. Palmateer, 85 Ill. 2d at 130; see 

Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502 (1985) (this court found a 

clearly mandated public policy enunciated in federal legislation and regulations, 

which were national in scope). 

“The fact that a constitutional or statutory provision is cited in the complaint, 

however, does not give rise to a retaliatory-discharge cause of action. The test 

for determining whether the complaint states a valid cause of action is whether 

the public policy clearly mandated by the cited provisions is violated by the 

plaintiff’s discharge.” Barr, 106 Ill. 2d at 527.

¶ 25 Plaintiff’s cause of action is predicated on the proposition that Illinois has a 

clearly mandated public policy that institutions of higher learning must provide 

students the ability to obtain the benefits of a postsecondary education through 

financial help from federal and state-funded programs. 2 In support of this 

allegation, plaintiff cites Title IV of the HEA (20 U.S.C. ch. 28, subch. IV (2012)), 

whose stated purpose is “to assist in making available the benefits of postsecondary

education to eligible students *** in institutions of higher education” by 

 2

The appellate court’s opinion continually refers to plaintiff’s alleged clearly mandated public 

policy as “the right to obtain the benefits of postsecondary education through financial help of 

federal and state programs.” (Emphasis added.) We note, however, that the allegations in plaintiff’s 

complaint and the arguments he makes actually assert that institutions of higher learning must 

provide students the ability to obtain the funding through federal programs for postsecondary 

education. In analyzing plaintiff’s retaliatory discharge claim, we adhere to his characterization. 
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establishing various loan and grant programs. Id. § 1070. Plaintiff contends his 

discharge for not supporting the assignment of the instructors undermined this 

public policy because the appointment of the instructors violated various provisions 

of the HEA, which placed Malcolm X students at risk of losing their HEA funding, 

and defrauded students. 

¶ 26 In challenging plaintiff’s retaliatory discharge allegations in count I, defendant 

contends that plaintiff pleaded a “labyrinth of hundreds of pages of federal statutes 

and regulations,” none of which provide a right to public aid for postsecondary 

education nor “yield any specific requirements to which faculty must adhere.” 

Therefore, in defendant’s view, plaintiff failed to cite a specific provision that 

clearly mandates his asserted public policy.

¶ 27 “Established principles of judicial review counsel against consideration of 

issues which are not essential to the disposition of the cause or where the result will 

not be affected regardless of how the issues are decided.” In re Estate of Boyar, 

2013 IL 113655, ¶ 36; see Peach v. McGovern, 2019 IL 123156, ¶ 64. The parties 

here present and argue such an issue. Even if we were to agree with plaintiff and 

find that the HEA clearly mandates a public policy that institutions must afford 

their students the ability to obtain federal funding for postsecondary education, the 

appellate court’s judgment regarding count I could not be affirmed because 

plaintiff’s second amended complaint fails to sufficiently plead that his discharge 

violated his asserted public policy. 

¶ 28 The HEA establishes various loan and grant programs to financially assist 

students in obtaining the benefits of a postsecondary education. 20 U.S.C. § 1070 

(2012). The funds provided by HEA programs are given to eligible students, who 

attend eligible institutions, based on various factors. See id. §§ 1087kk, 1091, 

1094. In order to be an eligible institution, a postsecondary institution must sign a 

program participation agreement, which provides the conditions and requirements 

an institution must meet to initially and continuously participate as an eligible 

institution under Title IV of the HEA. Id. § 1094; 34 C.F.R. § 668.14 (2014). The 

Secretary of the United States Department of Education (Secretary) may terminate, 

limit, or suspend eligibility if an institution fails to satisfy the statutory or 

regulatory requirements. 20 U.S.C. § 1094(c)(1)(F) (2012); 34 C.F.R. § 600.41 

(2010); 34 C.F.R. § 668.86 (2000). 
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¶ 29 Plaintiff first contends defendant put the HEA funding of Malcolm X students 

at risk by violating section 1094(a)(21) of the HEA (20 U.S.C. § 1094(a)(21) 

(2012)). Section 1094(a)(21) provides that an eligible institution, such as 

defendant, for the purposes of Title IV of the HEA, must meet the requirements 

established by the Secretary and accrediting agencies. Id. Section 668.14(b)(23) of 

the Code of Federal Regulations also restates this requirement. 34 C.F.R. 

§ 668.14(b)(23) (2014). The Secretary determines which accrediting agencies are 

nationally recognized for the purposes of Title IV of the HEA in accordance with 

section 1099b of HEA and its own regulations. 20 U.S.C. § 1099b (2012); 34 

C.F.R. § 602 et seq.

¶ 30 According to plaintiff, the instructors defendant appointed to HeaPro 101 were 

not qualified under the standards provided by the National Accrediting Agency for 

Clinical Laboratory Sciences (NAACLS). Plaintiff’s reliance on the NAACLS 

standards is misplaced. It is undisputed that, in 2015, the NAACLS was not 

recognized by the Secretary as an accrediting agency for the purposes of Title IV 

eligibility. Without being a recognized accrediting agency by the Secretary, the 

NAACLS has no bearing on an institution’s eligibility under the HEA, and 

defendant is not required to abide by its standards or requirements. Therefore, 

defendant’s violation of NAACLS standards does not implicate the provisions of 

20 U.S.C. § 1094(a)(21) or 34 C.F.R. § 668.14(b)(23), nor could it serve as the 

basis for his allegation that defendant undermined his asserted public policy by 

putting the funding of Malcolm X students at risk.

¶ 31 Count I of plaintiff’s second amended complaint also alleges violations of 

section 1094(c)(3)(A) of the HEA (20 U.S.C. § 1094(c)(3)(A) (2012)) based on 

substantial misrepresentations of the nature of defendant’s educational program 

and the employability of its graduates. Under the HEA, the Secretary may impose 

civil penalties, limit or suspend an institution’s participation, or initiate termination 

of eligibility proceedings if an institution is found to have engaged in substantial 

misrepresentation of the nature of its educational program, its financial charges, or 

the employability of its graduates. Id. § 1094(c)(3) (2012); 34 C.F.R. 

§ 668.71(a)-(b) (2013). Misrepresentation is defined as any false, erroneous, or 

misleading communication made, directly or indirectly, in writing, visually, orally, 

or through other means, including any statement that has the likelihood or tendency 

to deceive. 34 C.F.R. § 668.71(c) (2012).
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¶ 32 Plaintiff contends that defendant misrepresented the nature of its educational 

program. Matters concerning the nature of an eligible institution’s educational 

program include, but are not limited to, statements regarding “[t]he number, 

availability, and qualifications, including the training and experience, of its faculty 

and other personnel.” 34 C.F.R. § 668.72(i). The specific deficiency cited by 

plaintiff is the appointment of the instructors.

¶ 33 Plaintiff’s complaint, however, lacks any contention that defendant made a 

misrepresentation. There is no allegation that defendant promised a certain level of 

quality of education or relayed any type of communication about the qualifications, 

training, or experience of the instructors to any student, the Secretary, lenders, or an 

accrediting agency. While plaintiff pleaded that the instructors were unqualified 

based on the lack of training, he did not allege that defendant made a 

communication about the instructor’s actual qualifications, training, or experience 

that were untrue or misleading. Therefore, plaintiff’s second amended complaint 

fails to sufficiently allege that defendant substantially misrepresented the nature of 

its education program in violation of section 1094(c)(3) of the HEA. 

¶ 34 Plaintiff also pleaded that defendant’s appointment of the alleged unqualified 

instructors misrepresented the employability of its graduates because the students 

enrolled in HeaPro 101 did not meet the certification requirements for 

phlebotomists. Misrepresentations concerning the employability of graduates 

include, but are not limited to, statements regarding “requirements that are 

generally needed to be employed in the fields for which the training is provided.”

34 C.F.R. 668.74(f).

¶ 35 Similar to plaintiff’s allegation that defendant misrepresented the nature of its 

educational program, plaintiff fails to assert that defendant made an untrue or 

misleading communication regarding the requirements to become a phlebotomist 

or EKG technician. Plaintiff’s second amended complaint also lacks sufficient facts 

to infer that students who pass HeaPro 101 taught by the allegedly unqualified 

instructors would have failed to meet some unspecified requirement of 

certification. There is no allegation, much less supporting authority, that students 

must be taught by certified phlebotomists/EKG technicians in order to become a 

certified phlebotomist or EKG technician. In fact, plaintiff’s second amended 

complaint is devoid of any requirements that a person must meet to become 
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certified. There is simply nothing in the second amended complaint, other than 

plaintiff’s unsupported assertion, to conclude that the students enrolled in HeaPro 

101 would not have met the certification requirements. See Simpkins v. CSX 

Transportation, Inc., 2012 IL 110662, ¶ 26 (a plaintiff may not rely on conclusions 

of fact unsupported by specific factual allegations); Buckner v. Atlantic Plant 

Maintenance, Inc., 182 Ill. 2d 12, 24 (1998) (plaintiff’s conclusory allegations are 

not sufficient to state a cause of action). Therefore, plaintiff’s retaliatory discharge 

claim must also fail regarding the alleged misrepresentation of the employability of 

the graduates. 

¶ 36 Plaintiff also alleges that defendant violated its program participant agreement, 

required by 20 U.S.C. § 1094 and 34 C.F.R. § 668.14, by appointing unqualified 

instructors in violation of the requirements established by the accrediting agencies 

and by substantially misrepresenting the nature of its educational program and 

employability of its students. For the reasons stated above, plaintiff did not plead 

facts sufficient to establish the activity of appointing the instructors violated 

sections 1094(a)(21), (c)(3)(A) of the HEA or 34 C.F.R. § 668.14(b)(23). See 

supra ¶¶ 28-33. Thus, plaintiff also failed to sufficiently plead that defendant 

undermined the ability of students to obtain HEA funding by violating 20 U.S.C. 

§ 1094 and 34 C.F.R. § 668.14.

¶ 37 Lastly, plaintiff contends that defendant defrauded the students enrolled in 

HeaPro 101. An allegation that defendant made a misrepresentation, a basic 

element of fraud, is absent from plaintiff’s second amended complaint. See In re 

Witt, 145 Ill. 2d 380, 391 (1991). Therefore, plaintiff did not plead sufficient facts 

to support this contention. 

¶ 38 In addition to being factually deficient, plaintiff’s complaint also fails to 

explain how any allegation of fraud, if proven, would undermine plaintiff’s 

asserted public policy. Although fraudulent conduct is actionable, it is a separate 

cause of action from a retaliatory discharge claim and is only relevant here to the 

extent that it undermines the asserted public policy that students must have the 

ability to obtain federal funding for postsecondary education. Plaintiff’s second 

amended complaint and his brief before this court make no connection between the 

alleged fraud and the potential loss of Malcolm X students’ HEA funding, through 

a citation to a provision of the HEA that would provide grounds to terminate an 
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institution’s eligibility if it engaged in fraud, or otherwise. Plaintiff’s allegation that 

his discharge violated his asserted public policy by defrauding students enrolled in 

HeaPro 101 therefore consists of his own legal conclusions. Accordingly, this 

allegation does not provide a basis for plaintiff’s retaliatory discharge claim.

¶ 39 In sum, plaintiff failed to allege sufficient facts to conclude that the Secretary 

could terminate defendant’s eligibility under the HEA, which would result in the 

loss of Malcolm X students’ HEA funding. Without alleging sufficient facts to 

support that the appointment of the instructors placed the federal funding of 

Malcolm X students at risk, plaintiff failed to sufficiently plead that his discharge 

undermined a public policy that institutions must provide students the ability to 

obtain the benefits of postsecondary education through the financial help of federal 

and state-funded programs. Count I of plaintiff’s second amended complaint, 

alleging retaliatory discharge, was therefore properly dismissed.

¶ 40 We turn then to count II of plaintiff’s complaint, which asserted a violation of 

the Whistleblower Act (740 ILCS § 174/1 et seq. (West 2014)). The Whistleblower 

Act provides employees protection from an employer’s retaliation for certain 

disclosures and refusals and prohibits policies that prevent an employee from 

disclosing information to a government agency that the employee reasonably 

believes violate a state or federal law, rule, or regulation. 740 ILCS 174/10, 15, 20, 

20.1, 20.2 (West 2014). Plaintiff predicates his claim on section 20 of the 

Whistleblower Act, which provides “[a]n employer may not retaliate 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.” Id. § 20.

¶ 41 The appellate court determined plaintiff’s complaint was insufficient because a 

“refusal to participate” must be preceded by an employer’s request or demand that 

an employee engage in the illegal or unlawful conduct, something plaintiff did not 

allege. 2018 IL App (1st) 170067, ¶ 41. Before this court, plaintiff takes issue with 

that contention and argues that the appellate court was incorrect to hold that 

“refusal to participate” requires a plaintiff to plead that an employer specifically 

asked the plaintiff to perform an unlawful act. It was incorrect, in plaintiff’s view, 

because it would impermissibly add another element to a claim under section 20 of 

the Whistleblower Act. 
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¶ 42 Section 20 of the Whistleblower Act requires that an employee refuse 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 2014). To state a claim under section 

20 of the Whistleblower Act, a plaintiff must therefore sufficiently allege not only 

that he or she refused to participate in the activity but also that the activity violated

a statute, rule, or regulation. 

¶ 43 The theory underlying count II of plaintiff’s amended complaint is that he was 

terminated for having refused to participate in the appointment of the unqualified 

instructors, something that would defraud students and violate 20 U.S.C. 

§ 1094(a)(21), (c)(3)(A) and 34 C.F.R. § 668.14. These violations of law are the 

same that plaintiff alleged to support his retaliatory discharge claim. 

¶ 44 As explained in our analysis of count I, plaintiff’s second amended complaint 

lacks sufficient facts to conclude that defendant’s appointment of the instructors 

violated the standards of a recognized accrediting agency or misrepresented the 

nature of its educational program or employability of its students. See supra 

¶¶ 33-35. Plaintiff’s complaint therefore failed to sufficiently plead that 

defendant’s appointment of the instructors violated 20 U.S.C. § 1094(a)(21), 

(c)(3)(A), or 34 C.F.R. § 668.14. Similarly, plaintiff’s fraud allegation cannot serve 

as the predicate for his claim under the Whistleblower Act because he fails to cite 

any state or federal law, rule, or regulation that defendant violated resulting in fraud 

on the students enrolled in HeaPro 101. 

¶ 45 Therefore, irrespective of whether plaintiff refused to participate, his 

Whistleblower Act action must nevertheless fail because plaintiff did not 

sufficiently plead that the appointment of the instructors violated a statute, rule, or 

regulation, as required by section 20 of the Whistleblower Act. 740 ILCS 174/20 

(West 2014). Count II in plaintiff’s second amended complaint was therefore 

properly dismissed. 

¶ 46 CONCLUSION
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¶ 47 For the foregoing reasons, we hold that plaintiff failed to sufficiently plead a

retaliatory discharge claim or a violation of the Whistleblower Act. The circuit 

court therefore acted correctly when it dismissed counts I and II of plaintiff’s 

second amended complaint, and the appellate court erred when it reversed the 

dismissal of the retaliatory discharge claim. The judgment of the appellate court is 

therefore reversed in part and affirmed in part, and the cause is remanded to the 

circuit court for further proceedings consistent with this opinion.

¶ 48 Appellate court judgment affirmed in part and reversed in part.

¶ 49 Circuit court judgment affirmed.

¶ 50 Cause remanded.

¶ 51 JUSTICE NEVILLE took no part in the consideration or decision of this case.