2013 I LApp (2d) 130006 No. 2-13-0006 Opinion filed September 30, 2013

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ J OHN COL L I

NS, ) Appea l from the Circuit Court ) of Du Pag e County

. Plaintiff-Appellant, ) ) v. ) No. 12-L -59 ) BA RTL ETT PARK DI STRI CT, ) Honora ble ) Hollis L . Webster, Def endant- Appellee

. ) J udg e, Presiding

.

______________________________________________________________________________ PRES I DI NG JUS TI CE BURKE de livered the judgme nt of the cour t, with opinion. J ustices Hutchinson and Jorg ensen c oncurr ed in the judg ment and opinion. OP INION ¶ 1 Def

endant, Ba

rtlett Park District, terminated the employ ment of plaintiff, J ohn Colli ns, after plaintiff challeng ed his supervisor’ s decision to continue operating an alleg edly defe ctive ski lift at full capa city

. Plaintiff filed a two-count amende d complaint, alleg ing (1) reta liation in violation of section 20 of the Whis tleblower Act (see 740 I L CS 174/ 20 (West 2012)) and (2) the common-law tort of re taliatory

discharg e. ¶ 2 T h e trial court dismiss ed both claims under section 2-615 of the Code of Civil Pro ce d u re (Code) (735 I L CS 5/2-615 (West 2012)), and plaintiff appea ls. W e af fi rm t h e dismiss al of the whistleblower claim, reve rse the dismiss al of the reta liatory discharg e claim, and rema nd the cause for f urther pr ocee dings.2013 I L App (2d) 130006

¶ 3 FACTS ¶ 4 I n his amende d complaint, plaintiff alleg ed the following fact s co m m o n t o b o t h claims. Def endant owns and opera

tes the Villa Olivia Country Club and Ski Fa cility (Villa Olivia) in Ba rtlett. The ski fac ility includes chair lifts desig ned to transport skiers to the top of a ski hill. Eac h chair in the lift at issue holds up to four passeng ers. ¶ 5 Fr om 1983 until late in 2010, Villa Olivia’s prior owner employ ed plaintiff, whose job title

was assistant superintende nt. Plaintiff’s duties included overse eing the day -to-day operations of the ski hi l l , m ai n t ai n ing the buildings, maintaining and repa iring equipment for the ski hill and g olf

course , and main t ai n i n g an d repa iring the chair lifts to ensure their safe operation. Def endant
p urcha sed Villa Olivia in November 2010. Plaintiff rea pplied for his position and was hired by defe ndant in Dec ember

2010. ¶ 6 T he Carnival and Amusement Rides Safety Act (Safe ty Act) reg ulates the operat i o n an d maintenanc e of ski lifts in I llinois , including the chair lifts and other li fts at Vil la Oli via. S ee 430 I L CS 85/2-2(4)( b) (W est 2012) (“amusement ride” gover ned by the S afe ty Act def ined to include “any ski lift, rope tow, or other device used to transport snow skiers”)

. The Safety Act char g es the Depart m en t of L abor and the Carnival-A musement Safety Boa rd to “promulg ate and formulate definitions, rules and reg ulations for the safe installation, repa ir, mai ntenanc e, use, opera tion, training standards f

or oper ators, and inspec tion of all amusement ride s and amuseme nt attrac tions
as t he Director finds nece ssary for the pr otection of the g ener al public using amusement ride s and
amusement attrac tions.” 430 I L CS 85/2-6 (West 2 0 1 2 ). According ly , the Direc tor of the Depa rtment of L abor adopted a reg ulation that implements the standards of “ANSI B- 77.1” from the Americ an National Standards I n s t i tute (ANSI ), which is entitled “2006 Passeng er Ropeway s—

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Aer ial Tramwa

y s, Aer ial L ifts, Surfac e L ifts, Tows and Convey ors—Safe ty Requirements (2006)” (her einaf ter AN SI Code). 56 I ll. Adm. Code 6000.15(a)( 1)(B ) (2009)

. ¶ 7 On Dec ember

26, 2010, plaintiff di scover ed that the chair lift had a maintenanc e proble m. Two worn sheave whee l liners on tower 3 cause d the chair cable , when asce nding the l i ft , t o ride outside the sheave whee l a ssemblies. Plaintiff obse rved that the def ect cause d the chair lift’s rope g rips to be in contac t with the sheave flang es, outside the line shea ve g roove. ¶ 8 Plaintiff alleg ed that a chair lift operating this way would be a violation of sections 4.1.3.3.2 and 4.1.3.3.3 of the ANSI Code. Fur thermore , the haul rope gr ip no longe r passed smoothly over

an d u nder the line sheave s as require d by section 4.1.4.3.1 of the ANSI Code. On Dec em b er 2 6 , 2010, plaintiff draf

ted, signe d, and delivere d to defe ndant a handwr itten descr iption of the chair lift’s condition on that date. Plaintiff attac hed a c opy of that docume nt to the amended c omplaint. ¶ 9 To reduc e the load on the s y s t em , plaintiff adopted a temporary safe ty measure of loading only two passeng ers on ever y other chair , rathe r than four passeng ers on ever y chair

. This measure preve nted t he chair cable from riding outside the s heave whee l assembly and temporarily broug ht the cha ir lift into compliance with the ANSI Code. ¶ 10 Plaintiff repor

ted the problem and his temporar y solution to his supervisor, J ohn Carlson, the parks depar

tment superintende nt. Carlson decide d to repa ir the sy stem by repla cing the two sheave whee l assemblies. Plaintiff alleg ed that such a repla ceme nt is not “the ordinary method of repa iring the sy stem” bu t wo u l d b e eff ective if the corr ect parts wer e used. Plaintiff order ed the corr ect repla ceme nt parts, but the wrong parts arr ived. By J anuar y 14, 2011, the sy stem could not be
repa ired a s Carlson direc ted.

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¶ 11 At d ef

en d an t ’s reque st, plaintiff tested the chair lift and lear ned that the cable , when t h e chair s wer e fully loaded, was still riding outside the s heave whee l assemblies. The condition had not chang ed since plaintiff’s discove ry of the proble m the previous month. ¶ 12 Plaintiff persisted in his opinion that safe oper ation of the c hair lift re quired re stricting the number of passeng ers and chair s that wer e loaded. Plaintiff instructed the chair lift operator to continue to load only ever y other chair with only two passeng ers. Plaintiff notified defe ndant of his finding s and his direc tions to t he oper ator. ¶ 13 On J anuar

y 15, 2011, plaintiff arr ived at work and discovere d that the chair lift was opera ting at full ca pacity . Plaintiff immediately reiter ated his instruction to the opera tor to restrict the loa d. ¶ 14 The operator responde d that Rita F letcher , Villa Olivia’s executive direc tor, had instructed him to load the chair s to full capa city

. Plaintiff told the operator that running the chair lift that way was “ wrong ” and tha t he should load eve ry other c hair only

. ¶ 15 Fletc her summoned plaintiff and informed him th at s h e an d Carlson had decide d that the chair lift would be operated at full capa city , even t h o u gh i t had not been repa ired y et. Fletc her
repr imanded plaintiff f

or disobey ing he r orde rs. ¶ 16 Plaintiff told Fletc her that her proposed method of oper at i n g t h e ch air lift was unsafe and violated the ANSI Code and t h e manufa cture r’s instructions. Plaintiff also told Fletc her that he would repor

t the violation to the Depar tment of L abor. ¶ 17 Fletc her persisted in her order that the chair lift be opera ted at full ca p ac i t y , an d p laintiff responde d that he could not obey that order

. There afte r, defe ndant excluded plai n t i ff from any decisions re g arding the safe ty of the c hair lift.

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¶ 18 On J anuar

y 17, 2011, a lift eng ineer inspected the sy stem pursuant to the Safety Act. Plaintiff

was not notified of the inspection. The eng ineer repor ted no problems with tower 3, which plaintiff had found to be defe ctive. Howe ver, the eng ineer repor ted t wo findi ng s reg arding tower 2. First,

a lower ring that holds the bullwheel liner in place had a section wher e sever al welds wer e cra cked. The ring was l o ose, which cause d the whee l to make a “cy clical noise” on ever y rotation. The
eng ineer rec ommended repa iring the ri ng within four day s and monitoring it closely

. Second, a particula r sheave unit neede d alig nment and likely neede d new sheave liners, with one of the sheave s needing immediate attention. Alignme nt w ould be challeng ing, beca use the line g ag e wa s sprea d. Plaintiff alleg ed that he was capa ble of perf

orming the repa irs rec ommended by the eng ineer , but defe ndant did not inform him of the rec ommendations. ¶ 19 On J anuar

y 24 , 2 0 1 1 , C ar l s o n, acting on behalf of defe ndant, informed plaintiff that his employ ment w a s te r

mi n a te d

. Pl aintiff alleg ed, upon information and belief, that afte r his termination defe ndant adopted his safe ty measure of loading only two people on only ever y other chair of the lift. ¶ 20 Def

endant filed a combined motion to dismiss plaintiff’s ame n d ed complaint, pursuant to sections 2-615, 2-619, and 2-619.1 of the C ode (735 I L CS 5/2-615, 2-619, 2-619.1 (West 201 2 )). On September

20, 2012, the trial cour

t dismi ssed the whistleblower claim under

section 2-615 f

or failing to state a claim. The court initially declined to dismiss the retaliatory discharg e claim, but

on Dec ember 5, 2012, the court rec onsidered its decision and dismiss ed that claim under section 2- 615 as well. Acc ording ly , plaintiff’s entire action was dismiss ed with prejudice

. Plaintiff’s timely
appea l followed. ¶ 21 ANAL YSI S

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¶ 22 I nitially , we addre ss plaintiff’s reque st to strike portions of d e f e n d a n t’ s b rief. Plaintiff asserts that defe nda

n t’ s n a tu r e - o f

- th e - c a s e a

n d s ta tement-of- fac ts sections are inacc urate and arg umentative.
I llinois Supreme Court Rule 341(h)( 2) (ef f. J uly 1, 2008) require s an introductory para g raph stating (1) the na ture of the action and of

the j udg ment appea led from and whether the judgme nt is based
upon the verdic t of a jury , and (2) whether any question is ra ised on the pleading s and, if so, the
nature of t he question

. I n defe ndant’s brief, t he section labeled “nature of t he case” consists of a 21⁄2-pag e rec itation of the fac ts, including an explanation of the parties’ arg uments to the trial court. Such detail is excessive, and we consider it a violation of Rule 341( h)(2)

. ¶ 23 I llinois Supreme Court Rule 341(h)( 6) (ef f. J uly 1, 2008) require s a statement of fac ts, which shall contain the fac ts nece ssary to an understanding of the case , stated acc urate ly and fairly without
arg ument or comment, and with appropr iate ref ere nce to the pag es of the rec ord on appea l. Although defe ndant’s statement of fac ts contains arg ument, it is not so arg umentative that it must be stricken. We decline to strike the nature -of- the-c ase and statement-of -fa cts sections of defe ndant’s brief, but

we disreg ard any inappropria te or unsupported mater i al and any arg ument contained in those sections. ¶ 24 A. Whist leblower Act ¶ 25 I n his w histleblower claim, plaintiff additionally alleg ed that (1) he had a g ood-fa ith be lief that the cha ir lift was defec tive, cre ating an unsaf e condition and violating specific sections of the ANSI Code; (2) he was justified i n instructing the chair lift operator to operate the lift at less than full capa city to reme dy the conditi o n , d es pite the contrary order s of Fletcher and C arlson; and (3) defe ndant terminate d plaintiff’s employ ment in reta liation for his direc ting the ope rator to r un the lift at less than full capa city

. Plaintiff contends that these alleg ations stated a claim of reta liation in

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violation of section 20 of the Whis tleblower Act, and there fore his whistleblower claim should not have be en dismissed under se ction 2-615 of the Code . We disag ree . ¶ 26 A motion to dismiss under section 2-61 5 o f t h e C o d e (735 I L CS 5/2-615 (West 2012)) challeng es the leg al suffic iency of a c omplaint, based on def ects a ppare nt on its face. Marshall v. Burger King Corp. , 222 I ll. 2d 422, 429 (2006). To re view the leg al s ufficie ncy of a complaint, a
court acc epts as true all well-plea ded fac ts and al l re asonable infere nces that may be draw n from those fac ts a

nd construes the alleg ations in the light most fa vorable to the plaintiff. Marshall , 222 I ll. 2d at 429. Whil e a plaintiff mu s t al l ege fac ts sufficie nt to bring a claim within a leg ally

rec og nized cause of action, a cause of action should not be dismiss ed under section 2-615 unless it is clea rly apparen t t h at n o set of fac ts can be proved that would entitle the plaintiff to rec overy . Marshall , 222 I ll. 2d at 429-30. ¶ 27 Section 20 of the Whis tleblower Act provides, in rele vant part, that “[a]n employ er may not
reta liate ag ainst an employ ee for ref using to participa te in an activity that would result in a violation of a State or fede ral law, rule, or reg ulation.” 740 I L CS 174/20 (West 2012). The Appellate Court, First District, in a case direc tly on point, rec ently held that the lang uag e of section 20 is unambig uous

an d that, to state a claim, a “plaintiff must actua lly ref use t o participa te” in an activit y t h at wo u l d violate a law or reg ulation. Sardiga v. Northern Trust Co. , 409 I ll. App. 3d 56, 62 (2011). The term “re fusing ” under section 20 “mea ns ref using; it does not mean ‘complaining ’ or ‘questioni ng .’ ” Sardiga , 409 I ll. App. 3d at 62. ¶ 28 Although plaintiff has alleg ed that defe ndant knowing ly decide d to co n t i n u e o p er at i ng a defe ctive chair l ift i n v i o lation of a law or reg ulation, plaintiff has failed to alleg e that he actually ref used to participa te in that activity

. I nstead, plainti ff ha s alleg ed that, whe n he sawthe cha ir lift

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opera tor loading the cha irs to full capa city , he dire cted the ope rator to a dopt his safety measure of running at on e- q u ar t er capa city

. The opera tor ref used to follow plaintiff’s direc tive, per the instructions of Fletc her and Carlson. Fletc her repr imanded plaintiff, and he took no further action
to pursue his objection. Plaintiff did not alleg e that he was operating the chair lift or that defe ndant order ed him to do something that he actua lly ref used to do. Plaintiff complained to and questioned the decision of Fletc her and Carlson to continue operating the chair lif t at full capa city , but such protestations are not a “r ef u s al t o participa te” under section 20 of the Whis tleblower Act. See Sardiga , 409 I ll. App. 3d at 62. ¶ 29 Plaintiff ha s failed to a lleg e that he actua lly ref used to participa te in a

n illega l a ctivity , and there fore he has not stated a claim for reta liation under sec t ion 20. The trial court corr ectly dismiss ed the whistleblowe r cla im pursuant to section 2-615 of the Code. ¶ 30 B. Reta liatory Dischar g e ¶ 31 I llinois follows the g ener al rule that an at-will employ ee may be discharg ed “ ‘for any rea son

or no rea s o n . ’ ” T

u rner v. Mem orial Medic al Center , 233 I ll. 2d 494, 500 (2009) (quoting Zimmerman v. Buchhe it of Sparta, Inc. , 16 4 I l l

. 2 d 2 9, 32 (1994))

. Our supreme court, howeve r,

rec og nizes an exception to the g ener al rule, in an action for reta liatory discharg e. Hartlein v. Illinois Power Co. , 151 I ll. 2d 142, 159 (1992). “To state a va lid retaliatory discharg e ca

use of a ction, an employ ee must alleg e that (1) the employ er dis ch arg ed the employ ee, (2) in reta liation for the employ ee’ s activities, and (3) that the discharg e violates a clea r mandate of public policy .” Turner , 233 I ll. 2d at 500. The exception is “a limited and nar row c ause of

action.” Turner , 233 I ll. 2d at 500. I f the employ er has a valid, nonprete x tual basis for discharg ing the employ ee, the element of

causa tion is not met. Hartlein , 151 I ll. 2d at 160. The employ ee must identify a clea r and specific

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mandate of public policy as opposed to a broad, g ener al, or va g ue stateme nt that does not provide specific g uidance or is prone t o m u l t i p l e interpre tations. Turner , 233 I ll. 2d at 503. “Unless the
emp l oy ee identifies a clear mandate of public policy that is violated by the employ ee’ s discharg e, the complaint will not state a cause of action for r etaliatory discharg e.” Turner , 233 I ll. 2d at 503. ¶ 32 Gene rall y , the i ssue of reta liation is a question for the trier of fac t to resolve. Turner , 233 I l l

. 2 d at 5 0 1 n.1. Howeve r, the issue of whether a public policy exis ts, and the rela ted issue o f whether the employ ee’ s discharg e undermines the stated public policy , are questions of law for the court to dec ide. Turner , 233 I ll. 2d at 501. ¶ 33 I n his reta liatory discharg e claim, plaintiff alleg ed that a cl ea r m an d at e o f public policy require s the opera tors o f s k i l i fts to maintain and operate them safe ly and to cooper ate with the Depa rtment of L abor in repor

ting safe ty violations and maintenanc e and operational issues. Plaintiff alleg ed that the public policy is rooted i n t h e S af ety Act, the reg ulations promulg ated by the Depa rtment of L abor, the inspections mandated by the Depa rtment of L abor, and the common law that imposes on opera tors liability for unsa fe ski lifts that cause injuries. ¶ 34 P laintiff also alleg ed that he was discharg ed in reta liation for rep o rt i n g t h e h az ar d t o defe ndant, ref

using to allow the ski lift to be operated in violation of safe ty standards, and informing defe ndant that continuing to operate the ski lift at full capa city wa s u n safe and a violation of the ANSI Code. Plaintiff conclude d that his discharg e violated the clea r mandate of public policy that require s ski lifts t o be maintained a nd operated safe ly

. ¶ 35 1. Section 2-615: Fa ilure to State a Claim ¶ 36 Def

endant arg ues that the reta liatory discharg e claim failed to st at e a cause of action, and there fore th e t ri al court corr ectly dismiss ed it under section 2-615 of the Code. Specifica lly , -9-2013 I L App (2d) 130006

defe ndant arg ues that (1) no clea r mandate of public policy was violated by plaintiff’s discharg e and (2) plaintiff’ s discharg e was not reta liatory , beca use he had been eng ag ing in insubordination. Plaintiff arg ues t hat hi s all ega t i o n s s t ated a claim of reta liatory discharg e, and there fore his claim should not have bee n dismiss ed. We ag ree . ¶ 37 a. Public Policy ¶ 38 Plaint i ff al l ege d t h at a clea r mandate of public policy require s the operators of ski lifts to maintain and operate them safe ly and to cooper ate with the Depa rtment of L abor in repor

ting safe ty violations and maintenanc e and opera tional issues. Def

endant char acte rizes plaintiff’s alleg ation as

a broad, g ener al, and vag ue statement about “saf ety proce dures” or “public safe ty ” that does not amount to a clea

r manda te of public policy

. ¶ 39 Gene rally , the asce rtainment of public policy and the deter mination of whether the policy is undermined by

an employ ee’ s discharg e ar e questions of lawfor the cour ts. Turner , 233 I ll. 2d at 501. Thus, our re view is de novo

. Turner , 233 I ll. 2d at 502. ¶ 40 The public-policy element of reta liatory discharg e ref lects the tort’s role in striking “a pr oper balanc e *** among the employ er’ s interest i n o p er ating a business eff iciently and profitably , the employ ee’ s interest in ear ning a livelihood, and society ’s interest in seeing its public policies car ried out.” (I nterna l quo t at i o n m ar ks omitted.) Turner , 233 I ll. 2d at 502. Although the term “cle arly mandated public policy ” eludes prec ise definition, “it can be said that public policy conce rns what is rig ht and jus t and what affec t s t h e citizens of t he S tate collectively .” (I nterna l quotation marks omitted.) Turner , 233 I ll. 2d at 500. A clea r manda te of public policy “must strike at the heart of a citizen’s social rig hts, duties, and responsibilities.” (I nterna l quotation marks omitted.) Turner , 233 I ll. 2d at 5 0 1

. Al s o , a clea r mandate of public policy must be sufficie ntly specific to put

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employ ers on notice that employ ment decisions rela ting to the policy could expose them to liability

. Turner , 233 I ll. 2d at 503 (“A n employ er should not be ex posed t o liability wh er e a p ublic policy standard is too g ener al to pr ovide any specific g uidance or is so vague that it is subject to dif fer ent interpre tations.” (I nterna l quotation marks omitted.)). Otherw ise, evalua ting the p u b l i c- policy exception with g ener alized conce pts of fairne ss and justice will result in an elimination of the at-will doctrine itself. Turner , 233 I ll. 2d at 502-03. Examples of public policies too ge nera l or vag ue to b e enfor ced in an action for reta liatory discharg e include the rig ht to marry a cowor ker, pro d u ct safe ty , p ro m o t i n g q u ali ty health car e, and the Hippocra tic Oath. Turner , 233 I ll. 2d at 503. The Turner court explained the importance of balanc ing the interests of employ ees, employ ers, and the public: “Adhe renc e to a narr ow definition of public policy , as an element of a reta liatory discharg e action, maintains the balanc e among the rec og nized inter ests. Employ ees will be secur e in knowing that their jobs are safe if they exercise their rig hts a ccor ding to a clea r mandate of public policy

. Employ ers will know that they may discharg e their at-will employ ees for any

or no rea son unless they act co n t ra ry to public policy

. Finally , the public interest in the further ance o f its public policies, the stability of employ ment, and the elimination of frivolous lawsuits is maintained. [C itation.] ” Turner , 233 I ll. 2d at 507. ¶ 41 Clear mandates of public policy can be found in the constitution, statutes, judicial decisions, and safe ty reg ulations. W heele r v. Caterpillar Tractor Co. , 108 I ll. 2d 502 (1985). I n this case , the Safety Act define s “amuse ment ride” to mean “any ski lift, rope tow, or other dev i ce u s ed to transport snow skiers.” 430 I L CS 85/2-2(4)( b) (W est 2012). Defendant does not dispute that the Safety Act g overns the sa fe ope ration and maintenance of t he ski lifts at Villa Olivia. Pursuant to -11-2013 I L App (2d) 130006

the S afe ty Act, the Depa

rtm en t o f L abor and the C arniva l-Amusement S afe ty Boa rd promulgated and formulated definitions, rules, and reg ulations for the safe installation, repa ir, maintenanc e, use, op er at i o n , o pera

tor training standards, and inspection of all amusement rides as nece ssary for the protec tion of t he gene ral publi c usi ng them. See 430 I L CS 85/2 -6 (W est 2012). Specifica lly , the Direc tor of L abor adopted a reg ulation that implements the standards of ANSI B- 77.1, entitled “2006 Passeng er Ropeway s—Aeria l Tramwa y s, Aer ial L ifts, Surfac e L ifts, Tows and Convey ors—Safe ty Requirements (2006).” 56 I ll. Adm. Code 6000.15(a )( 1 )( B) (2009). Plaintiff alleg ed that defe ndant’s insistence on operating the ski lift at full capa city violated m an y o f t h ose standards, which he c ited in his amended c omplaint. ¶ 42 I n Mitee Race rs, Inc. v. Carnival-Amuseme nt Safety Board , 152 I ll. App. 3d 812, 817 (1987),

we thoroug hly examined the leg islative history of the Safety Act and deter mined that the leg islature intended to reg ulate all mecha nized amusement rides prese nting a potential dang er to the public. We noted that the Safety Act was passed in response to numerous injuries that resulted from amusementride acc idents, including a serious acc ident at S i x Flag s Over Gre at Americ a near Gurne e. Mitee Race rs , 152 I ll. App. 3d at 817. We held that “the leg islature intended that the [S afe ty Act] be broadly applied to all mecha nized amusement rides in the interests of preve nting dang er to children,
or any other user s of the ride s.” Mitee Rac ers , 152 I ll. App. 3d at 819. ¶ 43 Consist ent with Mitee Race rs , we ag ree with plaintiff that the Safety Act, and the re g ulations
p ro m ulgated there under, establish a clea r mandate of public policy that opera tors maintain and
opera te ski lifts safe ly and to cooper ate with the Depa rtment of L abor in repor

ting safe ty violations and maintena

nce and operational issues. This narr owly define d public policy protec ts the interest of preve nting dang er to skiers and other pas s en ger s o f the chair lifts. We further conclude that -12-2013 I L App (2d) 130006

plaintiff’s termination, as alleg ed in his reta liatory discharg e claim, undermined that clea r mandate of public policy

by stifling the willing ness of other employ ees to c omplain of similar problems. ¶ 44 Whil e defe ndant has an interest in operating its ski fac ility eff iciently and profitably , one ca n hardly imag ine how that interest could outweig h society ’s interest in seeing that ski lifts are opera ted in acc ordanc e with prec ise safe ty reg ulations. The public p o l i cy o f protec ting ski-lift passeng ers strikes at t he heart of a citiz en’s social rig hts, d u t i es, and responsibili ties. See Turner , 233 I ll. 2d at 501. The A

NSI Code violations that plaintiff allege d show that the public policy is sufficiently specific to put defe ndant on notice that its employ ment decisions rela ting to that policy could expose it to li ability . See Turner , 233 I ll. 2d at 503. ¶ 45 Our decision is supported by Carty v. Suter Co. , 371 I ll. App. 3d 784 (2007), in which the discharg ed employ ee alleg ed that he observe d his employ er, a food manufa cturing company , using expired buttermilk a

nd mislabeling its food products by listi ng cer

tain ingr edients that wer e not in the products. Carty , 371 I ll. App. 3d at 785. The employ ee alleg ed in his reta liatory discharg e claim that the prac tices wer e “unlawf ul acc ording to various fede ral laws and reg ulations.” Carty , 371 I ll. App. 3d at 785. The trial court g rante d the employ er summar y judgme nt. ¶ 46 On appea l, we reve rsed the summary judgme nt, observing that “ ‘[t] here is no public policy

more important or more fundame ntal than the one favor ing the eff ective protec tion of the lives and
proper ty of citizens’ ” and that the primary purpose of the fede ral Food, Drug , and Cosmetic Act (21 U.S.C. §§ 342, 343 (2000)) is to protect the public he alth. Carty , 371 I ll. App. 3d at 789 (quoting Palmateer v. International Harve ster Co. , 85 I ll. 2d 124, 132 (1981))

. We held that “to protec t the public from the dang ers associate d with the use of spoiled food products and the mislabeling of food products, employ ees of manufa cture rs of food products must be able to fre ely repor t their conce rns, -13-2013 I L App (2d) 130006

as plaintiff attempted to do.” Carty , 371 I ll. App. 3d at 789. L ike the Food, Drug , and Cosmetic Act in Carty , the Safe ty

Act cr eate s a compre hensive sche me re lating to public sa fety

. ¶ 47 Def

endant cites Turner for the proposition that skier safe ty is t o o gen er al to be a cle ar mandate of public policy

. I n Turner , a respiratory thera pist alleg ed that his hospi t al em ploy er terminated him in reta liation for advising an acc reditation survey or reg arding the timing of char ting

a patient’s file. Turner , 233 I ll. 2d at 498. W i t h o u t alleg ing a violation of any particula r law or reg ulation, the employ ee stated that the prac tice violated “ ‘sound nursing and medical prac tices,’ ” and “ ‘wa s not consistent with sound medical prac tices.’ ” Turner , 233 I ll. 2d at 498. Our supreme
court deter

mined that the employ ee’ s reta liatory d is c h a r g e a c ti on require d a more specific expression of public policy

than “pa tient safety .” Turner , 233 I ll. 2d at 503. ¶ 48 This case is distinguishable from Turner , wher e the reta liatory discharg e claim failed to cite violations of specific stand ar d s o r reg ulations. Her e, plaintiff alleg ed that the clea r mandate of public policy of ensuring skier safe ty is rooted in the Safety Act, the reg ulations promulg ated by the Depa rtment of L abor, the inspections mandated by the Depa rtment of L abor, and the common law that imposes on operators liability for unsafe ski l i ft s that cause injury

. I n Turner , the plaintiff invoked subjective standa rds and pr actice s, but in this case plaintiff alleg ed multiple violations of
a compr ehensive scheme of saf ety -re lated statutes and r eg ulations. ¶ 49 b. I nsubordination ¶ 50 De fe n d an t al s o as s er t s that plaintiff eng ag ed in insubordinatio n , wh i ch cr ea t ed a nonprete x tual basis for his termination, and there fore the element of causation is not met and h i s discharg e was not reta liatory

. Def endant arg

ues that , ev en if taken as true, plaintiff’s alleg ations establish that he was discharg ed for insubordination in that he attempted to counter mand Fletc her’ s -14-2013 I L App (2d) 130006

order to the opera tor to opera te the ski lift at full capa city , afte r Fletc her had consulted with Carlson about the issue. Whether defe ndant discharg ed plaintiff for i n s u b o rd i n ation or in reta liation for
att empting to comply with safe ty reg ulations is a fac tual question to be answe red by the finder of fac t. See Turner , 233 I ll. 2d at 501 n.1 (the iss ue of reta liation is a question for the trier of fac t to resolve)

. The exis tence of a fac tual issue prec ludes dismiss al under section 2-615 of the Code. See Marshall , 222 I ll. 2d at 429-30 (a cause of action should not be dismiss ed under section 2-615 unless it is clearly

appar ent that no set of f

acts c an be pr oved that would entitle the plaintiff to r ecove ry ). ¶ 51 2. Section 2-619(a )(9) : Affirma tive Matter ¶ 52 Def

endant next arg ues that the reta liatory discharg e claim must be dismiss ed under section 2-619(a )(9) of the Code beca use (1) plaintiff did n o t h av e an objective, g ood-fa ith belief that the chair lift violated the law and (2) sections 2-201 and 2-109 o f t h e L o ca l Governmental and Gover nmental Employ ees Act (Tort I mmunity Act) (745 I L CS 10/2-201, 2-109 (West 2012)) immuniz es defe ndant from liability for the termination. Section 2-619(a )(9) provides that an action
may be dismiss ed when “the claim asser ted ag ainst defe ndant is barr ed by other aff irmative matter avoiding the leg al eff

ect of or defe ating the claim.” 735 I L CS 5/2-619(a) (9) (West 2012). A ruling

on a section 2-619 motion must “ ‘interpr et all pleading s and supporting documents in the light most favor able to the nonmoving party .’ ” Van Mete r v. Darien Park District , 207 I ll

. 2 d 3 5 9 , 367-68 (2003) (quoting In re Chicago Flood Liti gation , 176 I ll. 2d 179, 189 (1997))

. Howeve r, conclusions

o f l aw o r fact unsupported by specific fac tual alleg ations are not to be taken as true. Buck ner v. O’Brien , 287 I ll. App. 3d 173, 176 (1997), aff’d , 182 I ll. 2d 12 (1998). ¶ 53 A ruli ng on a mot ion to dismiss pursuant to section 2-619(a)( 9) i s revie wed de novo

. Van Mete r , 207 I ll. 2d at 368. I n revie wing a ruling on a mot ion to dismiss under section 2-619(a )(9) , -15-2013 I L App (2d) 130006

the rele vant inquiry is “ ‘whe ther the exis tence o f a gen u i ne issue of materia l fac t should have
prec luded the dismissal or, absent such a n issue of fa ct, whethe r dismissal is proper as a matter of law.’ ” Sandholm v. Kueck er , 2012 I L 111443, ¶ 55 (quoting Kedzie & 103rd Currency Exc hange, Inc. v . Hodge , 156 I ll. 2d 112, 116-17 (1993)). ¶ 54 a. Good- Fa ith Belief of Violation ¶ 55 Courts examine both the intent of the employ ee and the motive of the employ er in e valuating
reta liatory discharg e actions based on whistleblowing. Undoubtedly , the intent of the employ ee to blow the whistle is vital to a claim of retaliatory discharg e. Michae l v. Prec ision Alli ance G roup, LLC , 2011 I L App (5th) 100089, ¶ 23. When a cour t e valuates the intent of the employ ee, the test is whether the employ ee acte d on a g ood-fa ith belief that the employ er was v i o l at ing the law. Michae l , 2011 I L App (5th) 100089, ¶ 24. Def endant contends that the alleg ations in plaintiff’s
reta liatory discharg e claim establish that he lacke d a g ood-fa ith belief that defe ndant was violating the law. Howeve r, whether plaintiff had a g ood-fa ith belief that defe ndant’s opera tion of the ski lift viola t ed t h e l aw i s a question for the finder of fac t to decide

. As in the case of a section 2-615 motion to dismiss , the exis tence of a fac tual issue prec ludes dismiss al under section 2-619(a )(9) of the C ode. See Chandler v. Illi nois Central R.R. Co. , 207 I ll. 2d 331, 341 (2003) (the e x istence of
a g enuine issue of

materia l fac t prec ludes dismissal under section 2-619)

. ¶ 56 b. Tort I mmunity Act ¶ 57 F in a ll y , d efe ndant arg ues that the reta liatory discharg e claim war rants d is mi s s a l u

n d e r s e c ti o n 2-619(a )(9) of the Code beca use sections 2-201 and 2-109 of the Tort I mmunity Act confe r immunit y from liability for plaintiff’s termination. Section 2-201 of the Tort I mmunity Act provides that “[e]x cept as otherwise provided by Statute, a public employ ee serving in a position involving the -16-2013 I L App (2d) 130006

deter mination of policy or the exercise of discretion is not liable for an injury resulting from his act

or omission in deter

mining policy when acting in the exercise of s u ch discretion even though abuse d

. ” 7 4 5 I L CS 10/2-201 (West 2012). Our supreme court has recog nized that section 2-201 “off ers the most signific ant protec tion aff orded to public employ ees under the Act.” A r t em a n v. Clint on Community Unit School District No. 15 , 198 I ll. 2d 475, 484 (2002). ¶ 58 Additionally , section 2-109 of the Tort I mmunity

Act provide s that “[a] local public entity is not liable for an inj ury resulting from an act or omission of its employ ee w here the employ ee is
not liable.” 745 I L CS 10/2-109 (West 2012). Tog ethe r, s ec t ions 2-201 and 2-109 provide discretionar

y immunit y to public entities. See Arteman , 198 I ll. 2d at 484 (“B eca use ‘[a] local public entity is not liable for an injury resulting from an act or omission of its employ ee wher e the employ ee is not liable’ [citation] , this broad discretionar y immunit y appli es to the entities themselves.” (I nterna l quotation marks omitted.)). ¶ 59 Rely ing upon Smith v. W aukegan Park District , 231 I ll. 2d 111 (2008), plaintiff arg ues that sections 2-201 and 2-109 of the Tort I mmunity Act do not aff ord defe ndant immunit y for reta liatory discharg e. I n that case , the employ ee sued his employ er, the Waukeg an Park District (District), for
reta liatory discharg e beca use he was terminated afte r filing a cl ai m u nder the Workers’ Compensation Act (820 I L CS 305/1 et seq. (West 2000)). Our supreme court held that sections 2- 201 and 2-109 of the Tort I mmunity Act did not entitle the Di s t ri ct t o dismiss al of the reta liatory discharg e cla im pursuant to section 2-619(a )(9) of the Code. ¶ 60 T h e em p l o y ee suffe red a work-r elated injury that require d medical trea tment and time off work, and he filed a worke rs’ compensa tion claim. Upon the employ ee’ s return to work, the District insisted that he submit to a drug and alcohol test

. W h en t h e empl oy ee ref used, his supervisor -17-2013 I L App (2d) 130006

terminated his employ

ment. The complaint alleg ed that the drug -test demand was “re taliatory hara ssment” for f

iling the wor

kers’ compensa tion claim and that the discha rg e wa s retaliator

y . ¶ 61 Adv o c a

ti n g d is mi s s a l u

n d er section 2-619(a )(9) , the District arg ued that it was immune under section 2-109 of the Tort I mmunity Act bec ause the supervisor made the termination dec ision a nd only a municipal employ er, and not its employ ees, can be liable for the tort of reta liatory discharg e. Smith , 231 I ll. 2d at 115. Our supreme court disag ree d, emphasizing that “it is not the public entity ’s employ ee who cause s the reta liatory discharg e. Rather, it is the employ er. Section 2-109 only g rants immunit y to a public entity from ‘an injury resulting from an act or omission of its employe e wher e the employ ee is not liable.’ ” (Emphasis in orig inal.) Smith , 231 I ll. 2d at 117 (quoting 745 I L CS 1 0 /2-109 (West 2000)). Concluding that section 2-109 did not aff ord the District immunit y , the Smith court held that “sec tion 2-109 immunit y does not apply in case s of reta liatory d i s ch arg e beca use the e mploy er, not the e mploy ee, ultimately cause s the injury .” Smith , 231 I ll. 2d at 117. ¶ 62 Alterna tively , the District arg ued that the combined eff ect of sections 2-201 and 2-109 of the
T o rt I mmunity Act gave the Dis trict discretionar y immunit y beca

use t he supervisor’s t ermina t i o n decision was a discretionar y act and a deter

mination of policy

. Smith , 231 I ll. 2d at 1 1 4

. T he Dist ri ct conclude d that section 2-201 immuniz ed the supervisor and that the District was

corr esponding ly immune pursuant to section 2-109. Ag ain, the supreme court disag ree d, reiter ating its position that “this arg ument fails beca use it incorre ctly views the employ ee as the pertinent actor when it is the employ er who ‘ac ts’ within the meaning of section 2-109 in a reta liatory discharg e.” Smith , 231 I ll. 2d at 118. ¶ 63 I n deter

mining that the Tort I mmunity Act did not confe r immunit y on the District, the Smith
court e mphasized that (1) section 4(h) of the W orker s’ C ompensation Act prohibit s any employ er -18-2013 I L App (2d) 130006

from discharg ing an employ ee for exercising his worke rs’ compensa tion rig hts (820 I L CS 305/4(h) (West 2002)) and (2) section 2-101(c ) of the Tort I mmunity Ac t l ea ves unaff ecte d the liability , if
any , of a loc al publ ic entity or public employ ee unde r the Worker s’ Compensation Act (745 I L CS 10/2-101(c) (West 2002)). Smith , 231 I ll. 2d at 119. T h e S mi th court stated that “[w]i thout expressing an opinion on firing s in g ener al by public entities, we decla re, under established I llinois law, public entities possess no immuniz ed discretion to discharg e employ ees fo r ex erc ising their worke rs’ c ompensation rig hts.” Smith , 231 I ll. 2d at 119. ¶ 64 De fe n d ant arg ues that Smith denies immunit y under sections 2-201 and 2-109 of the Tort
I mmunity Act only in reta liatory discharg e ca ses wher e the r etaliation i s provoked by the fil ing of

a workers’ compensa tion claim. Def endant distinguishes Smith from this case , wher e plaintiff’s discharg e alleg edly was based on a disag ree ment with manag ement over the method of operating the ski lift. Def

endant draw s a distinction without a differ ence . The rationale of Smith applies equally
to this case , even though the statutory safe g uards of section 4(h) of the Workers’ Compensation Act and section 2-101(c ) of the Tort I mmunity Act do not lend additional support to plaintiff’s reta liatory discharg e cla im. ¶ 65 Consist ent with Smith , we ag ree with p l ai n t i ff t h at sections 2-201 and 2-109 of the Tort
I mmunity Act are not aff irm ati ve matter defe ating plaintiff’s reta liatory discharg e claim. As in Smith , section 2-109 immunit y does not apply to this claim of reta li at o ry d i s ch arg e, beca use defe ndant, not Fletc her or Carlson, ultimately cause d the alleg ed injury to plaintiff. See Smith , 231 I ll. 2d at 117. Neither Fletc her n o r C ar l s o n i s t he “per tinent actor ” beca

use it is defe ndant that “ac ted” within the meaning of section 2-109 in a reta liatory discharg e. See Smith , 231 I ll. 2d at 118.

-19-2013 I L App (2d) 130006

Our conclusion that defe ndant is not immune from liability for pla intiff’s discharg e obviates the need to determine w hether

the ac ts of Fletc her a

nd Carlson ac tually

wer e discre tionary

. ¶ 66 CONCL USI ON ¶ 67 For the preceding rea sons, the di smissal of plaintiff’s w histleblower cla im is affirmed, the dismiss al of plaintiff’s reta liatory discharg e claim is reve rsed, and the cause is rema nded for further
proce eding s consistent with this opi nion. ¶ 68 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

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