ILLINOIS OFFICIAL REPORTS

Appellate Court

Collins v. Bartlett Park District, 2013 IL App (2d) 130006

Appellate Court

Caption

JOHNCOLLINS,Plaintiff-Appellant, v. BARTLETT PARKDISTRICT,

Defendant-Appellee.

 District & No. Second District

Docket No. 2-13-0006

Filed September 20, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

On appeal from the dismissal of plaintiff’s claims for a violation of the

Whistleblower Act and retaliatory discharge arising from his challenge

of his supervisor’s decision to continue operating a ski lift at the park

district where he worked, the dismissal of his claim under the Act was

upheld in the absence of an allegation that plaintiff refused to participate

in an illegal activity, but the dismissal of the retaliatory discharge claim

was reversed, since plaintiff alleged that the Safety Act applicable to the

operation of ski lifts and regulations and inspections required by the

Department of Labor were a clear mandate of a public policy of ensuring

skier safety, and the question of whether plaintiff was discharged for

insubordination or in retaliation for seeking enforcement of the safety

regulations was a matter for the trier of fact.

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 12-L-59; the Hon.

Hollis L. Webster, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on

Appeal

Stephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper,

Storm & Piscopo, of Geneva, for appellant.

Gregory R. James, David A. Moore, and Sara P. Yager, all of Laner

Muchin, Ltd., of Chicago, and Edward F. Dutton, of Park District Risk

Management Agency, of Lisle, for appellee.

Panel PRESIDING JUSTICEBURKEdelivered the judgment of the court, with

opinion.

Justices Hutchinson and Jorgensen concurred in the judgment and

opinion.

OPINION

¶ 1 Defendant, Bartlett Park District, terminated the employment of plaintiff, John Collins,

after plaintiff challenged his supervisor’s decision to continue operating an allegedly

defective ski lift at full capacity. Plaintiff filed a two-count amended complaint, alleging (1)

retaliation in violation of section 20 of the Whistleblower Act (see 740 ILCS 174/20 (West

2012)) and (2) the common-law tort of retaliatory discharge.

¶ 2 The trial court dismissed both claims under section 2-615 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-615 (West 2012)), and plaintiff appeals. We affirm the dismissal of

the whistleblower claim, reverse the dismissal of the retaliatory discharge claim, and remand

the cause for further proceedings.

¶ 3 FACTS

¶ 4 In his amended complaint, plaintiff alleged the following facts common to both claims.

Defendant owns and operates the Villa Olivia Country Club and Ski Facility (Villa Olivia)

in Bartlett. The ski facility includes chair lifts designed to transport skiers to the top of a ski

hill. Each chair in the lift at issue holds up to four passengers.

¶ 5 From 1983 until late in 2010, Villa Olivia’s prior owner employed plaintiff, whose job

title was assistant superintendent. Plaintiff’s duties included overseeing the day-to-day

operations of the ski hill, maintaining the buildings, maintaining and repairing equipment for

the ski hill and golf course, and maintaining and repairing the chair lifts to ensure their safe

operation. Defendant purchased Villa Olivia in November 2010. Plaintiff reapplied for his

position and was hired by defendant in December 2010.

¶ 6 The Carnival and Amusement Rides Safety Act (Safety Act) regulates the operation and

maintenance of ski lifts in Illinois, including the chair lifts and other lifts at Villa Olivia. See

-2-
430 ILCS 85/2-2(4)(b) (West 2012) (“amusement ride” governed by the Safety Act defined

to include “any ski lift, rope tow, or other device used to transport snow skiers”). The Safety

Act charges the Department of Labor and the Carnival-Amusement Safety Board to

“promulgate and formulate definitions, rules and regulations for the safe installation, repair,

maintenance, use, operation, training standards for operators, and inspection of all

amusement rides and amusement attractions as the Director finds necessaryforthe protection

of the general public using amusement rides and amusement attractions.” 430 ILCS 85/2-6

(West 2012). Accordingly, the Director of the Department of Labor adopted a regulation that

implements the standards of “ANSIB-77.1” from the American National Standards Institute

(ANSI), which is entitled “2006 Passenger Ropeways–Aerial Tramways, Aerial Lifts,

Surface Lifts, Tows and Conveyors–SafetyRequirements (2006)” (hereinafter ANSICode).

56 Ill. Adm. Code 6000.15(a)(1)(B) (2009).

¶ 7 On December 26, 2010, plaintiff discovered that the chair lift had a maintenance

problem. Two worn sheave wheel liners on tower 3 caused the chair cable, when ascending

the lift, to ride outside the sheave wheel assemblies. Plaintiff observed that the defect caused

the chair lift’s rope grips to be in contact with the sheave flanges, outside the line sheave

groove.

¶ 8 Plaintiff alleged 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. Furthermore, the haul rope grip no longer passed

smoothly over and under the line sheaves as required by section 4.1.4.3.1 of the ANSICode.

On December 26, 2010, plaintiff drafted, signed, and delivered to defendant a handwritten

description of the chair lift’s condition on that date. Plaintiff attached a copy of that

document to the amended complaint.

¶ 9 To reduce the load on the system, plaintiff adopted a temporary safetymeasure of loading

only two passengers on every other chair, rather than four passengers on every chair. This

measure prevented the chair cable from riding outside the sheave wheel assembly and

temporarily brought the chair lift into compliance with the ANSI Code.

¶ 10 Plaintiff reported the problem and his temporarysolution to his supervisor, John Carlson,

the parks department superintendent. Carlson decided to repair the system by replacing the

two sheave wheel assemblies. Plaintiff alleged that such a replacement is not “the ordinary

method of repairing the system” but would be effective if the correct parts were used.

Plaintiff ordered the correct replacement parts, but the wrong parts arrived. By January 14,

2011, the system could not be repaired as Carlson directed.

¶ 11 At defendant’s request, plaintiff tested the chair lift and learned that the cable, when the

chairs were fully loaded, was still riding outside the sheave wheel assemblies. The condition

had not changed since plaintiff’s discovery of the problem the previous month.

¶ 12 Plaintiff persisted in his opinion that safe operation of the chair lift required restricting

the number of passengers and chairs that were loaded. Plaintiff instructed the chair lift

operator to continue to load only every other chair with only two passengers. Plaintiff

notified defendant of his findings and his directions to the operator.

¶ 13 On January 15, 2011, plaintiff arrived at work and discovered that the chair lift was

operating at full capacity. Plaintiff immediately reiterated his instruction to the operator to

-3-
restrict the load.

¶ 14 The operator responded that Rita Fletcher, Villa Olivia’s executive director, had

instructed him to load the chairs to full capacity. Plaintiff told the operator that running the

chair lift that way was “wrong” and that he should load every other chair only.

¶ 15 Fletcher summoned plaintiff and informed him that she and Carlson had decided that the

chair lift would be operated at full capacity, even though it had not been repaired yet.

Fletcher reprimanded plaintiff for disobeying her orders.

¶ 16 Plaintiff told Fletcher that her proposed method of operating the chairlift was unsafe and

violated the ANSI Code and the manufacturer’s instructions. Plaintiff also told Fletcher that

he would report the violation to the Department of Labor.

¶ 17 Fletcher persisted in her order that the chair lift be operated at full capacity, and plaintiff

responded that he could not obey that order. Thereafter, defendant excluded plaintiff from

any decisions regarding the safety of the chair lift.

¶ 18 On January 17, 2011, a lift engineer inspected the system pursuant to the Safety Act.

Plaintiff was not notified of the inspection. The engineer reported no problems with tower

3, which plaintiff had found to be defective. However, the engineer reported two findings

regarding tower 2. First, a lower ring that holds the bullwheel liner in place had a section

where several welds were cracked. The ring was loose, which caused the wheel to make a

“cyclical noise” on every rotation. The engineerrecommended repairing the ring within four

days and monitoring it closely. Second, a particular sheave unit needed alignment and likely

needed new sheave liners, with one of the sheaves needing immediate attention. Alignment

would be challenging, because the line gauge was spread. Plaintiff alleged that he was

capable of performing the repairs recommended by the engineer, but defendant did not

inform him of the recommendations.

¶ 19 On January 24, 2011, Carlson, acting on behalf of defendant, informed plaintiff that his

employment was terminated. Plaintiff alleged, upon information and belief, that after his

termination defendant adopted his safety measure of loading only two people on only every

other chair of the lift.

¶ 20 Defendant filed a combined motion to dismiss plaintiff’s amended complaint, pursuant

to sections 2-615, 2-619, and 2-619.1 of the Code (735 ILCS 5/2-615, 2-619, 2-619.1 (West

2012)). On September 20, 2012, the trial court dismissed the whistleblower claim under

section 2-615 for failing to state a claim. The court initially declined to dismissthe retaliatory

discharge claim, but on December 5, 2012, the court reconsidered its decision and dismissed

that claim under section 2-615 as well. Accordingly, plaintiff’s entire action was dismissed

with prejudice. Plaintiff’s timely appeal followed.

¶ 21 ANALYSIS

¶ 22 Initially, we address plaintiff’s request to strike portions of defendant’s brief. Plaintiff

asserts that defendant’s nature-of-the-case and statement-of-facts sections are inaccurate and

argumentative. Illinois Supreme Court Rule 341(h)(2) (eff. July 1, 2008) requires an

introductory paragraph stating (1) the nature of the action and of the judgment appealed from

-4-
and whether the judgment is based upon the verdict of a jury, and (2) whether any question

is raised on the pleadings and, if so, the nature of the question. In defendant’s brief, the

section labeled “nature of the case” consists of a 21⁄2-page recitation of the facts, including

an explanation of the parties’ arguments to the trial court. Such detail is excessive, and we

consider it a violation of Rule 341(h)(2).

¶ 23 Illinois Supreme Court Rule 341(h)(6) (eff. July 1, 2008) requires a statement of facts,

which shall contain the facts necessary to an understanding of the case, stated accurately and

fairly without argument or comment, and with appropriate reference to the pages of the

record on appeal. Although defendant’s statement of facts contains argument, it is not so

argumentative that it must be stricken. We decline to strike the nature-of-the-case and

statement-of-facts sections of defendant’s brief, but we disregard any inappropriate or

unsupported material and any argument contained in those sections.

¶ 24 A. Whistleblower Act

¶ 25 In his whistleblower claim, plaintiff additionally alleged that (1) he had a good-faith

belief that the chair lift was defective, creating an unsafe condition and violating specific

sections of the ANSICode; (2) he was justified in instructing the chairlift operator to operate

the lift at less than full capacity to remedy the condition, despite the contrary orders of

Fletcher and Carlson; and (3) defendant terminated plaintiff’s employment in retaliation for

his directing the operator to run the lift at less than full capacity. Plaintiff contends that these

allegations stated a claim of retaliation in violation of section 20 of the Whistleblower Act,

and therefore his whistleblower claim should not have been dismissed under section 2-615

of the Code. We disagree.

¶ 26 A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2012))

challenges the legal sufficiency of a complaint, based on defects apparent on its face.

Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). To review the legal sufficiency

of a complaint, a court accepts as true all well-pleaded facts and all reasonable inferences that

may be drawn from those facts and construes the allegations in the light most favorable to

the plaintiff. Marshall, 222 Ill. 2d at 429. While a plaintiff must allege facts sufficient to

bring a claim within a legally recognized cause of action, 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 recovery. Marshall, 222 Ill. 2d at 429-30.

¶ 27 Section 20 of the Whistleblower Act provides, in relevant part, that “[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.” 740 ILCS 174/20 (West 2012).

The Appellate Court, First District, in a case directly on point, recently held that the language

of section 20 is unambiguous and that, to state a claim, a “plaintiff must actually refuse to

participate” in an activity that would violate a law or regulation. Sardiga v. Northern Trust

Co., 409 Ill. App. 3d 56, 62 (2011). The term “refusing” under section 20 “means refusing;

it does not mean ‘complaining’ or ‘questioning.’ ” Sardiga, 409 Ill. App. 3d at 62.

¶ 28 Although plaintiff has alleged that defendant knowingly decided to continue operating

a defective chair lift in violation of a law or regulation, plaintiff has failed to allege that he

-5-
actually refused to participate in that activity. Instead, plaintiff has alleged that, when he saw

the chair lift operator loading the chairs to full capacity, he directed the operator to adopt his

safety measure of running at one-quarter capacity. The operator refused to follow plaintiff’s

directive, per the instructions of Fletcher and Carlson. Fletcher reprimanded plaintiff, and he

took no further action to pursue his objection. Plaintiff did not allege that he was operating

the chair lift or that defendant ordered him to do something that he actually refused to do.

Plaintiff complained to and questioned the decision of Fletcher and Carlson to continue

operating the chairlift at full capacity, but such protestations are not a “refusal to participate”

under section 20 of the Whistleblower Act. See Sardiga, 409 Ill. App. 3d at 62.

¶ 29 Plaintiff has failed to allege that he actually refused to participate in an illegal activity,

and therefore he has not stated a claim for retaliation under section 20. The trial court

correctly dismissed the whistleblower claim pursuant to section 2-615 of the Code.

¶ 30 B. Retaliatory Discharge

¶ 31 Illinois follows the general rule that an at-will employee may be discharged “ ‘for any

reason or no reason.’ ” Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009)

(quoting Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 32 (1994)). Our supreme

court, however, recognizes an exception to the general rule, in an action for retaliatory

discharge. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159 (1992). “To state a valid

retaliatory discharge cause of action, an employee must allege that (1) the employer

discharged the employee, (2) in retaliation for the employee’s activities, and (3) that the

discharge violates a clear mandate of public policy.” Turner, 233 Ill. 2d at 500. The

exception is “a limited and narrow cause of action.” Turner, 233 Ill. 2d at 500. If the

employer has a valid, nonpretextual basis for discharging the employee, the element of

causation is not met. Hartlein, 151 Ill. 2d at 160. The employee must identify a clear and

specific mandate of public policy as opposed to a broad, general, or vague statement that

does not provide specific guidance or is prone to multiple interpretations. Turner, 233 Ill. 2d

at 503. “Unless the employee identifies a clear mandate of public policy that is violated by

the employee’s discharge, the complaint will not state a cause of action for retaliatory

discharge.” Turner, 233 Ill. 2d at 503.

¶ 32 Generally, the issue of retaliation is a question for the trier of fact to resolve. Turner, 233

Ill. 2d at 501 n.1. However, the issue of whether a public policy exists, and the related issue

of whether the employee’s discharge undermines the stated public policy, are questions of

law for the court to decide. Turner, 233 Ill. 2d at 501.

¶ 33 In his retaliatory discharge claim, plaintiff alleged that a clear mandate of public policy

requires the operators of ski lifts to maintain and operate them safely and to cooperate with

the Department of Labor in reporting safety violations and maintenance and operational

issues. Plaintiff alleged that the public policy is rooted in the Safety Act, the regulations

promulgated by the Department of Labor, the inspections mandated by the Department of

Labor, and the common law that imposes on operators liability for unsafe ski lifts that cause

injuries.

¶ 34 Plaintiff also alleged that he was discharged in retaliation for reporting the hazard to

-6-
defendant, refusing to allow the ski lift to be operated in violation of safety standards, and

informing defendant that continuing to operate the ski lift at full capacity was unsafe and a

violation of the ANSICode. Plaintiff concluded that his discharge violated the clear mandate

of public policy that requires ski lifts to be maintained and operated safely.

¶ 35 1. Section 2-615: Failure to State a Claim

¶ 36 Defendant argues that the retaliatory discharge claim failed to state a cause of action, and

therefore the trial court correctly dismissed it under section 2-615 of the Code. Specifically,

defendant argues that (1) no clear mandate of public policy was violated by plaintiff’s

discharge and (2) plaintiff’s discharge was not retaliatory, because he had been engaging in

insubordination. Plaintiff argues that his allegations stated a claim of retaliatory discharge,

and therefore his claim should not have been dismissed. We agree.

¶ 37 a. Public Policy

¶ 38 Plaintiff alleged that a clear mandate of public policy requires the operators of ski lifts

to maintain and operate them safely and to cooperate with the Department of Labor in

reporting safety violations and maintenance and operational issues. Defendant characterizes

plaintiff’s allegation as a broad, general, and vague statement about “safety procedures” or

“public safety” that does not amount to a clear mandate of public policy.

¶ 39 Generally, the ascertainment of public policyand the determination of whetherthe policy

is undermined by an employee’s discharge are questions of law for the courts. Turner, 233

Ill. 2d at 501. Thus, our review is de novo. Turner, 233 Ill. 2d at 502.

¶ 40 The public-policy element of retaliatory discharge reflects the tort’s role in striking “a

proper balance *** among the employer’s interest in operating a business efficiently and

profitably, the employee’s interest in earning a livelihood, and society’s interest in seeing its

public policies carried out.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 502.

Although the term “clearlymandated public policy” eludes precise definition, “it can be said

that public policy concerns what is right and just and what affects the citizens of the State

collectively.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 500. A clear mandate

of public policy “must strike at the heart of a citizen’s social rights, duties, and

responsibilities.” (Internal quotation marks omitted.) Turner, 233 Ill. 2d at 501. Also, a clear

mandate of public policy must be sufficiently specific to put employers on notice that

employment decisions relating to the policy could expose them to liability. Turner, 233 Ill.

2d at 503 (“An employer should not be exposed to liability where a public policy standard

is too general to provide any specific guidance or is so vague that it is subject to different

interpretations.” (Internal quotationmarks omitted.)).Otherwise, evaluating the public-policy

exception with generalized concepts of fairness and justice will result in an elimination of

the at-will doctrine itself. Turner, 233 Ill. 2d at 502-03. Examples of public policies too

general or vague to be enforced in an action for retaliatory discharge include the right to

marry a coworker, product safety, promoting quality health care, and the Hippocratic Oath.

Turner, 233 Ill. 2d at 503. The Turner court explained the importance of balancing the

interests of employees, employers, and the public:

-7-
“Adherence to a narrow definition of public policy, as an element of a retaliatory

discharge action, maintains the balance among the recognized interests. Employees will

be secure in knowing that their jobs are safe if they exercise their rights according to a

clear mandate of public policy. Employers will know that theymaydischarge their at-will

employees for any or no reason unless they act contrary to public policy. Finally, the

public interest in the furtherance of its public policies, the stability of employment, and

the elimination of frivolous lawsuitsis maintained. [Citation.]” Turner, 233 Ill. 2d at 507.

¶ 41 Clear mandates of public policy can be found in the constitution, statutes, judicial

decisions, and safety regulations. Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502 (1985).

In this case, the SafetyAct defines “amusement ride” to mean “any ski lift, rope tow, or other

device used to transport snow skiers.” 430 ILCS 85/2-2(4)(b) (West 2012). Defendant does

not dispute that the Safety Act governs the safe operation and maintenance of the ski lifts at

Villa Olivia. Pursuant to the Safety Act, the Department of Labor and the CarnivalAmusement SafetyBoard promulgated and formulated definitions, rules, and regulations for

the safe installation, repair, maintenance, use, operation, operator training standards, and

inspection of all amusement rides as necessary for the protection of the general public using

them. See 430 ILCS 85/2-6 (West 2012). Specifically, the Director of Labor adopted a

regulation that implements the standards of ANSI B-77.1, entitled “2006 Passenger

Ropeways–Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors–Safety

Requirements (2006).” 56 Ill. Adm. Code 6000.15(a)(1)(B) (2009). Plaintiff alleged that

defendant’s insistence on operating the ski lift at full capacity violated many of those

standards, which he cited in his amended complaint.

¶ 42 In Mitee Racers, Inc. v. Carnival-Amusement Safety Board, 152 Ill. App. 3d 812, 817

(1987), we thoroughly examined the legislative history of the SafetyAct and determined that

the legislature intended to regulate all mechanized amusement rides presenting a potential

danger to the public. We noted that the Safety Act was passed in response to numerous

injuries that resulted from amusement-ride accidents, including a serious accident at Six

Flags Over Great America near Gurnee. Mitee Racers, 152 Ill. App. 3d at 817. We held that

“the legislature intended that the [Safety Act] be broadly applied to all mechanized

amusement rides in the interests of preventing danger to children, or any other users of the

rides.” Mitee Racers, 152 Ill. App. 3d at 819.

¶ 43 Consistent with Mitee Racers, we agree with plaintiff that the Safety Act, and the

regulations promulgated thereunder, establish a clear mandate of public policy that operators

maintain and operate ski lifts safely and to cooperate with the Department of Labor in

reporting safety violations and maintenance and operational issues. This narrowly defined

public policy protects the interest of preventing danger to skiers and other passengers of the

chair lifts. We further conclude that plaintiff’s termination, as alleged in his retaliatory

discharge claim, undermined that clear mandate of public policy by stifling the willingness

of other employees to complain of similar problems.

¶ 44 While defendant has an interest in operating its ski facility efficiently and profitably, one

can hardly imagine how that interest could outweigh society’s interest in seeing that ski lifts

are operated in accordance with precise safety regulations. The public policy of protecting

ski-lift passengers strikes at the heart of a citizen’s social rights, duties, and responsibilities.

-8-
See Turner, 233 Ill. 2d at 501. The ANSI Code violations that plaintiff alleged show that the

public policy is sufficiently specific to put defendant on notice that its employment decisions

relating to that policy could expose it to liability. See Turner, 233 Ill. 2d at 503.

¶ 45 Our decision is supported by Carty v. Suter Co., 371 Ill. App. 3d 784 (2007), in which

the discharged employee alleged that he observed his employer, a food manufacturing

company, using expired buttermilk and mislabeling its food products by listing certain

ingredients that were not in the products. Carty, 371 Ill. App. 3d at 785. The employee

alleged in his retaliatory discharge claim that the practices were “unlawful according to

various federal laws and regulations.” Carty, 371 Ill. App. 3d at 785. The trial court granted

the employer summary judgment.

¶ 46 On appeal, we reversed the summary judgment, observing that “ ‘[t]here is no public

policy more important or more fundamental than the one favoring the effective protection

of the lives and property of citizens’ ” and that the primary purpose of the federal Food,

Drug, and Cosmetic Act (21 U.S.C. §§ 342, 343 (2000))is to protect the public health. Carty,

371 Ill. App. 3d at 789 (quoting Palmateer v. International Harvester Co., 85 Ill. 2d 124, 132

(1981)). We held that “to protect the public from the dangers associated with the use of

spoiled food products and the mislabeling of food products, employees of manufacturers of

food products must be able to freely report their concerns, as plaintiff attempted to do.”

Carty, 371 Ill. App. 3d at 789. Like the Food, Drug, and Cosmetic Act in Carty, the Safety

Act creates a comprehensive scheme relating to public safety.

¶ 47 Defendant cites Turner for the proposition that skier safety is too general to be a clear

mandate of public policy. In Turner, a respiratory therapist alleged that his hospital employer

terminated him in retaliation for advising an accreditation surveyor regarding the timing of

charting a patient’s file. Turner, 233 Ill. 2d at 498. Without alleging a violation of any

particular law or regulation, the employee stated that the practice violated “ ‘sound nursing

and medical practices,’ ” and “ ‘was not consistent with sound medical practices.’ ” Turner,

233 Ill. 2d at 498. Our supreme court determined that the employee’s retaliatory discharge

action required a more specific expression of public policy than “patient safety.” Turner, 233

Ill. 2d at 503.

¶ 48 This case is distinguishable from Turner, where the retaliatory discharge claim failed to

cite violations of specific standards or regulations. Here, plaintiff alleged that the clear

mandate of public policy of ensuring skier safety is rooted in the Safety Act, the regulations

promulgated by the Department of Labor, the inspections mandated by the Department of

Labor, and the common law that imposes on operators liability for unsafe ski lifts that cause

injury. In Turner, the plaintiff invoked subjective standards and practices, but in this case

plaintiff alleged multiple violations of a comprehensive scheme of safety-related statutes and

regulations.

¶ 49 b. Insubordination

¶ 50 Defendant also asserts that plaintiff engaged in insubordination, which created a

nonpretextual basis for his termination, and therefore the element of causation is not met and

his discharge was not retaliatory. Defendant argues that, even if taken as true, plaintiff’s

-9-
allegations establish that he was discharged for insubordination in that he attempted to

countermand Fletcher’s order to the operator to operate the ski lift at full capacity, after

Fletcher had consulted with Carlson about the issue. Whether defendant discharged plaintiff

for insubordination or in retaliation for attempting to comply with safety regulations is a

factual question to be answered by the finder of fact. See Turner, 233 Ill. 2d at 501 n.1 (the

issue of retaliation is a question for the trier of fact to resolve). The existence of a factual

issue precludes dismissal under section 2-615 of the Code. See Marshall, 222 Ill. 2d at 429-

30 (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 recovery).

¶ 51 2. Section 2-619(a)(9): Affirmative Matter

¶ 52 Defendant next argues that the retaliatory discharge claim must be dismissed under

section 2-619(a)(9) of the Code because (1) plaintiff did not have an objective, good-faith

belief that the chair lift violated the law and (2) sections 2-201 and 2-109 of the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745

ILCS 10/2-201, 2-109 (West 2012)) immunizes defendant from liability for the termination.

Section 2-619(a)(9) provides that an action may be dismissed when “the claim asserted

against defendant is barred by other affirmative matter avoiding the legal effect of or

defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). A ruling on a section 2-619

motion must “ ‘interpret all pleadings and supporting documents in the light most favorable

to the nonmoving party.’ ” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003)

(quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). However, conclusions

of law or fact unsupported by specific factual allegations are not to be taken as true. Buckner

v. O’Brien, 287 Ill. App. 3d 173, 176 (1997), aff’d, 182 Ill. 2d 12 (1998).

¶ 53 A ruling on a motion to dismiss pursuant to section 2-619(a)(9)is reviewed de novo. Van

Meter, 207 Ill. 2d at 368. In reviewing a ruling on a motion to dismiss under section 2-

619(a)(9), the relevant inquiry is “ ‘whether the existence of a genuine issue of material fact

should have precluded the dismissal or, absent such an issue of fact, whether dismissal is

proper as a matter of law.’ ” Sandholm v. Kuecker, 2012 IL 111443, ¶ 55 (quoting Kedzie &

103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)).

¶ 54 a. Good-Faith Belief of Violation

¶ 55 Courts examine both the intent of the employee and the motive of the employer in

evaluating retaliatory discharge actions based on whistleblowing. Undoubtedly, the intent of

the employee to blow the whistle is vital to a claim of retaliatory discharge. Michael v.

Precision Alliance Group, LLC, 2011 IL App (5th) 100089, ¶ 23. When a court evaluates the

intent of the employee, the test is whether the employee acted on a good-faith belief that the

employer was violating the law. Michael, 2011 IL App (5th) 100089, ¶ 24. Defendant

contends that the allegations in plaintiff’s retaliatory discharge claim establish that he lacked

a good-faith belief that defendant was violating the law. However, whether plaintiff had a

good-faith belief that defendant’s operation of the ski lift violated the law is a question for

the finder of fact to decide. As in the case of a section 2-615 motion to dismiss, the existence

-10-
of a factual issue precludes dismissal under section 2-619(a)(9) of the Code. See Chandler

v. Illinois Central R.R. Co., 207 Ill. 2d 331, 341 (2003) (the existence of a genuine issue of

material fact precludes dismissal under section 2-619).

¶ 56 b. Tort Immunity Act

¶ 57 Finally, defendant argues that the retaliatory discharge claim warrants dismissal under

section 2-619(a)(9) of the Code because sections 2-201 and 2-109 of the Tort Immunity Act

confer immunityfrom liability for plaintiff’s termination.Section 2-201 of the Tort Immunity

Act provides that “[e]xcept as otherwise provided by Statute, a public employee serving in

a position involving the determination of policy or the exercise of discretion is not liable for

an injury resulting from his act or omission in determining policywhen acting in the exercise

of such discretion even though abused.” 745 ILCS 10/2-201 (West 2012). Our supreme court

has recognized that section 2-201 “offers the most significant protection afforded to public

employees under the Act.” Arteman v. Clinton Community Unit School District No. 15, 198

Ill. 2d 475, 484 (2002).

¶ 58 Additionally, section 2-109 of the Tort Immunity Act provides that “[a] local public

entity is not liable for an injury resulting from an act or omission of its employee where the

employee is not liable.” 745 ILCS 10/2-109 (West 2012). Together, sections 2-201 and 2-109

provide discretionary immunity to public entities. See Arteman, 198 Ill. 2d at 484 (“Because

‘[a] local public entity is not liable for an injury resulting from an act or omission of its

employee where the employee is not liable’ [citation], this broad discretionary immunity

applies to the entities themselves.” (Internal quotation marks omitted.)).

¶ 59 Relying upon Smith v. Waukegan Park District, 231 Ill. 2d 111 (2008), plaintiff argues

that sections 2-201 and 2-109 of the Tort Immunity Act do not afford defendant immunity

for retaliatory discharge. In that case, the employee sued his employer, the Waukegan Park

District (District), for retaliatory discharge because he was terminated after filing a claim

under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2000)). Our supreme

court held that sections 2-201 and 2-109 of the Tort Immunity Act did not entitle the District

to dismissal of the retaliatory discharge claim pursuant to section 2-619(a)(9) of the Code.

¶ 60 The employee suffered a work-related injury that required medical treatment and time

off work, and he filed a workers’ compensation claim. Upon the employee’s return to work,

the District insisted that he submit to a drug and alcohol test. When the employee refused,

his supervisor terminated his employment. The complaint alleged that the drug-test demand

was “retaliatory harassment” for filing the workers’ compensation claim and that the

discharge was retaliatory.

¶ 61 Advocating dismissal under section 2-619(a)(9), the District argued that it was immune

under section 2-109 of the Tort Immunity Act because the supervisor made the termination

decision and only a municipal employer, and not its employees, can be liable for the tort of

retaliatory discharge. Smith, 231 Ill. 2d at 115. Our supreme court disagreed, emphasizing

that “it is not the public entity’s employee who causes the retaliatory discharge. Rather, it is

the employer. Section 2-109 only grants immunity to a public entity from ‘an injury resulting

from an act or omission of its employee where the employee is not liable.’ ” (Emphasis in

-11-
original.) Smith, 231 Ill. 2d at 117 (quoting 745 ILCS 10/2-109 (West 2002)). Concluding

that section 2-109 did not afford the District immunity, the Smith court held that “section 2-

109 immunity does not apply in cases of retaliatory discharge because the employer, not the

employee, ultimately causes the injury.” Smith, 231 Ill. 2d at 117.

¶ 62 Alternatively, the District argued that the combined effect of sections 2-201 and 2-109

of the Tort Immunity Act gave the District discretionary immunity because the supervisor’s

termination decision was a discretionary act and a determination of policy. Smith, 231 Ill. 2d

at 114. The District concluded that section 2-201 immunized the supervisor and that the

District was correspondingly immune pursuant to section 2-109. Again, the supreme court

disagreed, reiterating its position that “this argument fails because it incorrectly views the

employee as the pertinent actor when it is the employer who ‘acts’ within the meaning of

section 2-109 in a retaliatory discharge.” Smith, 231 Ill. 2d at 118.

¶ 63 In determining that the Tort Immunity Act did not confer immunity on the District, the

Smith court emphasized that (1) section 4(h) of the Workers’ Compensation Act prohibits

any employer from discharging an employee for exercising his workers’ compensation rights

(820 ILCS 305/4(h) (West 2002)) and (2) section 2-101(c) of the Tort Immunity Act leaves

unaffected the liability, if any, of a local public entity or public employee under the Workers’

Compensation Act (745 ILCS 10/2-101(c)(West 2002)). Smith, 231 Ill. 2d at 119. The Smith

court stated that “[w]ithout expressing an opinion on firings in general by public entities, we

declare, under established Illinois law, public entities possess no immunized discretion to

discharge employees for exercising their workers’ compensation rights.” Smith, 231 Ill. 2d

at 119.

¶ 64 Defendant argues that Smith denies immunity under sections 2-201 and 2-109 of the Tort

Immunity Act only in retaliatory discharge cases where the retaliation is provoked by the

filing of a workers’ compensation claim. Defendant distinguishes Smith from this case,

where plaintiff’s discharge allegedly was based on a disagreement with management over

the method of operating the ski lift. Defendant draws a distinction without a difference. The

rationale of Smith applies equally to this case, even though the statutory safeguards of section

4(h) of the Workers’ Compensation Act and section 2-101(c) of the Tort Immunity Act do

not lend additional support to plaintiff’s retaliatory discharge claim.

¶ 65 Consistent with Smith, we agree with plaintiff that sections 2-201 and 2-109 of the Tort

Immunity Act are not affirmative matter defeating plaintiff’s retaliatory discharge claim. As

in Smith, section 2-109 immunity does not apply to this claim of retaliatory discharge,

because defendant, not Fletcher or Carlson, ultimately caused the alleged injury to plaintiff.

See Smith, 231 Ill. 2d at 117. Neither Fletcher nor Carlson is the “pertinent actor” because

it is defendant that “acted” within the meaning of section 2-109 in a retaliatorydischarge. See

Smith, 231 Ill. 2d at 118. Our conclusion that defendant is not immune from liability for

plaintiff’s discharge obviates the need to determine whether the acts of Fletcher and Carlson

actually were discretionary.

¶ 66 CONCLUSION

¶ 67 For the preceding reasons, the dismissal of plaintiff’s whistleblower claim is affirmed,

-12-
the dismissal of plaintiff’s retaliatory discharge claim is reversed, and the cause is remanded

for further proceedings consistent with this opinion.

¶ 68 Affirmed in part and reversed in part; cause remanded.

-13-