## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Colli ns v. Bartl

ett Park District, 2013 IL App (2d) 130006

Appellate Court Caption JO H N CO L L I N S, Pl a in ti f f

- A p p e llant, v. BA RTL ETT PA RK D I ST RI CT
, Def endant- Appellee

.

District & N o. Second District Docke t No. 2-13-0006

Filed September 20, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On ap p eal from the dismiss al of plaintiff’s claims for a violation of t h e Whis tleblower Act and reta liatory discharg e aris i n g from his challeng e of his supervisor ’s d ec i s ion to continue operating a ski lift at the park dis t ri ct wh ere he worke d, the dismiss al of his claim under the Act was upheld in the absenc e of an alleg ation that plaintiff ref used to participa

te in a n illega l a ctivity
, but the dismiss al of the r etaliatory discharg e cla im

was reve rsed, since plaintiff alleg ed that the Safety Act applicable to the
operation of ski lifts and regulations and inspections re q u ired by the Depa rtment of L abor wer e a clea r mandate of a public policy of ensuring skier safe t y , and the question of whether plaintiff was discharg ed for insubordination or in reta liation for seeking enfor ceme nt of the safe ty regulations was a matter

for the tr ier of f

act.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 12-L -59; the Hon. Hollis L . Webster, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l Stephen M. Cooper, Peter M. Storm, and Phili p J

. Piscopo, all of Cooper, Storm & Piscopo, of Ge neva, f or appe llant.

Gr eg ory R. J ames, David A. Moore, and Sara P. Yag er, all of L aner Muchin, L td., of C hicag o, and Edwar d F. Dutton, of Park District Risk Manag ement Ag ency , of L isle, for a ppellee.

Panel PRES I DI NG J U ST I CE B U RK

E d elivere d the judgme nt of the court, with opinion.
J ustices Hutchinson and J org ensen co n cu rred in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Ba

rtlett Park District, terminated the employ ment of plaintiff, J ohn Colli ns, afte r plaintiff challeng ed his supervisor’ s decision to continue opera t ing 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)) a nd (2) the c ommon-law tort of re taliatory discharg e. ¶ 2 The trial court dismiss ed both claims under section 2-615 of the Code of Civil Procedur e (Code) ( 735 I L CS 5/ 2-615 (West 2012)), a nd plaintiff appeals. We aff irm the di smissal of the whistleblower claim, reve rse the dismiss al of the reta liatory discharg e claim, and rema nd the ca use for further proce eding s.

¶ 3 FACTS ¶ 4 In his amende d complaint, plaintiff alleg ed the following fac ts common to both claims. Def endant owns and operates the Villa Olivia Country Club a nd Ski F acility (Villa Olivia) in Ba rtlett. The ski fac ility includes chair lifts desig ned to transport skiers to the top of a ski hill. Each cha ir in the lift at issue holds up to four passeng ers. ¶ 5 Fr om 1983 until l ate in 2010, Villa Olivia’s prior owner employ ed plaintiff, whose job
t i t le was assistant superintende nt. Plaintiff’s duties included overse eing the day -to-d ay operations of the ski hill, maintaining the buildings, maintaining and repa iring equipment for the ski hill and g olf course , and maintaining and repa iring the chair lifts to ensure their safe
operation. Defe ndant purc hased V illa Olivia in November 2010. Plaintiff re applied for his position and was hired by defe ndant in Dec ember

2010. ¶ 6 The Carnival and Amusement Rides Safety Act (Safe ty Act) reg ulates the operation and maintenanc e of ski lifts in I llinois
, including the chair lifts and other lifts at Villa Olivia. See

-2-430 I L CS 85/2-2(4)( b) (West 2012) (“a musement ride” g overne d by the Safety Act define d
to include “any ski lift, rope tow, or other device used to transport snow skiers”)

. The Safety Act char g es the Depa

rtment of L abor an d the Carnival-A musement Safety Boa rd to “promulg ate and formulate definitions, rules and regulations for the safe installation, repa ir, maintenanc e, use, operation, training standards for o p erators, and inspection of all
amusement rides and amusement attrac tions as the Direc tor finds nece s s a r y f o r the protec tion of the g ener al public using amusement rides and amusement attrac tions.” 430 I L CS 85/2-6 (West 2012). Acc ording 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 Institut e (ANSI ), which is entitled “2006 Passeng er Ropeway s–Aeria l Tramwa y s , Aer ial L ifts, Surfac e L ifts, Tows and Conveyors–Safe ty Requirements (2006)” (her einaf ter ANSI Code). 56 I ll. Adm. Code 6000.15(a)( 1)(B ) (2009)

. ¶ 7 On De cembe r 26, 2010, plaintiff discovere d that the chair li ft h ad a m ai n t en an ce problem. Two worn sheave whee l liners on tower 3 cause d the chair cable
, when asce nding the lift, to ride outside the sheave whee l assemblies. Plaintiff observe d that the defe ct cause d the chair lift’s rope g rips to be in cont ac t wi t h t h e sheave flang es, outside the line sheave
g roove. ¶ 8 Pla i n t i ff al l eged that a chair lift operating this way would be a violation of sec tions 4.1.3.3.2 and 4.1.3.3.3 of the ANSI Code. Fur thermore
, the haul rope g rip no longe r passed smoothly over and under the line sheave s as require d by section 4.1.4.3.1 of the ANSI Code. On Dec ember

26, 2010, plaintiff dra fted, signe d, and deliver ed to def endant a handwr itten descr iption of the chair lift’s condition on that date. Plaintiff attache d a copy of that document to the ame nded complaint. ¶ 9 To reduc e the load on the sy stem, plaintiff adopted a temporar y safe ty measure of loading

o n l y t wo passeng ers on ever y other chair, rather than four passeng ers on ever y chair

. T h i s

measure preve nted the chair cable from riding outs i d e t h e s h eave whee l assembly and temporar ily

broug ht the chair

lift into compli ance with the ANSICode. ¶ 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 r epair 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” but would be eff ective if the corr ect p ar t s we re used. Plaintiff or dere d the cor

rec t r eplac ement parts, but the wrong parts arr ived. By J anuar y 14, 2011, the sy stem could not be re paire d as Carlson dire cted. ¶ 11 At defe ndant’s reque st, plaintiff tested the chair lift and lear ned that the cable
, when the chair s wer e fully loaded, was still riding outside the sheave whee l assemblies. The condition had not cha

ng ed since plaintiff’s discove ry of the proble m the previous month. ¶ 12 Plaintiff persisted in his opinion that safe operation of the cha ir lift require d restric ting the number of passeng ers and chair s that wer e loade d. Plaintiff instructed the chair lift
operator to continue to load only ever y oth er 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 ch ai r l i ft wa s operating at full capa city . Plaintiff immediately reiter ated his instruction to the operator to

-3-restric t the load.

¶ 14 The operator responde d that Rita Fletc her, Vi l l a Ol i v i a’ s ex ec u t i v e direc tor, had instructed him to load the chair s to f ull c apac ity

. Plaintiff told the opera tor that running the chair lift that way

was “ wrong ” and that he should load eve ry other c hair only

. ¶ 15 Fletc her summoned plaintiff and informed him that she and Carlson had decide d that the chair lift would be operated at fu l l ca p ac ity
, even though it had not been repa ired y et. Fletc her r eprimande d plaintiff for disobe ying he r orde rs. ¶ 16 Plaintiff told Fletc her that her proposed method of operating the chair lift was unsafe and violated the ANSI Code and the manufa cture r’s instructions. Plaintiff also told Fletc her that he would re port the violation to the Depa rtment of L abor. ¶ 17 Fletc her persisted in her order that the chair lift be operated at full capa city
, and plaintiff responde d that he could not obey that order

. There afte r, defendant e x cluded plaintiff from
any decisions re g ardingthe safe ty of the c hair lift. ¶ 18 On J anuar

y 17, 2011, a l i ft en gi n eer inspected the sy stem pursuant to the Safety Act. Plaintiff was not not ified of the inspe ction. The e ng ineer repor ted no problems wit h tower 3, which pl ai n t i ff had found to be defe ctive. Howeve r, the eng ineer repor ted two finding s reg arding to we r 2

. First, a lower ring that holds the bullwheel liner in place had a section wher e several welds we re cra cked. The ring was loose, which caused the whee l to make a “cyclical noise” on ever

y rotation. The eng ineer rec ommended repa iring the ring 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 would be challeng ing, beca use the line g aug e was sprea d. Plain t i ff al l eg 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 re commendations. ¶ 19 On J anuar

y 24, 2011, Carlson, acting on behalf of defe ndant, informed plaintiff that his employ ment was terminated. Plaintiff alleg ed, upon informat i o n an d belief, that afte r his termination defe ndant adopted his safe ty measure of loading only two people on only ever y other c hair of the lift. ¶ 20 Def

endant filed a combined motion to dismiss plaintiff’s amende d complaint, pursuant
to sections 2-615, 2-619, and 2-619.1 of the Code (735 I L CS 5/2-615, 2-619, 2-619.1 (West 2012)). On September 20, 2012, the trial court dismis s ed t he whistleblower claim under section 2-615 for failing to state a claim. The court initially declined to dismiss the reta liatory 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 ANALYSI S ¶ 22 Initially
, we addre ss plaintiff’s req u est to strike portions of defe ndant’s brief. Plaintiff

asser ts that defe ndant’s nature -of- the-c ase and statement-of -fa cts sections are inacc urate and
argumentative. I llinois Supreme Court Rule 341(h) (2 ) (eff. J uly 1, 2008) require s an introductory para g raph stating (1) the nature of the action and of the judgme nt appea led from

-4-and whether the judgme nt is based upon the verdic t of a jury
, and (2) whether any question

is raised on the pleading s and, if so, the nature of the qu es t i o n

. I n defe ndant’s brief, the section l abele d “natur e of the case ” consists of a 21⁄2- pag e re citation of t he facts, i ncluding

an explanation of the parties’ arguments to the trial court. Such de tail is ex cessive, and we consider it a violation of Rule 341( h)(2)

. ¶ 23 I llinois Supreme Court Rule 341(h)( 6) (e ff. July 1, 2008) re quires 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 argument or comment, an d wi th appropriate ref ere nce to the pag es of the

rec ord on appea l. Although defe ndant’s statement of fac ts contains argume nt, it is not so argumentative that it must be stricken. We decline to strike the nature -o f- t h e-case and statement-of

-fa ct s s ections of defe ndant’s brief, but we disreg ard any inappropriate or unsupported mater ial and any argument contained in those se ctions.

¶ 24 A. Whist leblower Act ¶ 25 In his whistleblower claim, plaintiff additional l y al l ege d t h at (1) he had a g ood-fa ith belief that the cha ir lift was defe ctive, cre ating an unsafe condition and violating specific sections of the ANSI Code; (2) he was justified in instructing the chair lift operator to operate the lift at less than full capa city to reme dy the condit i o n , d espi te the contra ry order s of Fletc her and Carlson; and (3) defe ndant terminated plaintiff’s employ ment in reta liation for his direc ting the operator to run the lift at less than full capa city

. Plaintiff contends that these alleg ations stated a claim of reta liation in violation of section 20 of the Whis tleblower Act, and there fore his whistleblower claim should not have been dismiss ed under section 2-615 of the Code. We disagree

. ¶ 26 A motion to di smiss under section 2-615 of the Code (735 I L CS 5/2-615 (West 2012) ) challeng es the leg al s ufficie ncy of a complaint, based on defe cts appar ent on its fac e. Marshall v. Burger King Corp.
, 222 I ll. 2d 422, 429 (2006). To revie w the leg al sufficie ncy of a complaint, a court acc epts as true all well-plea ded fac ts and all rea sonable infere nces that
may be drawn from those fac ts and construe s the allegations in the l ight most favor able to the plaintiff. Marshall
, 222 I ll. 2 d at 4 2 9. Whil e a plaintiff must alleg e fac ts sufficie nt to brin g 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 appar ent that no set of fac ts can be proved that would entitle the plaintiff to re cover y

. 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 retaliate ag ainst an employ ee for refusing to participate i n an ac tivity that would result in a violation of a State or fede ral law, rule, or re gulation.” 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 languag e of section 20 is unambiguous and t hat, t o state a claim, a “plaintiff must actua lly ref use t o participate” in an activity that would violate a law or regulation. 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 ‘c omplaining’ or ‘que stioning.’ ” Sardiga , 409 I ll. App. 3d at 62. ¶ 28 Although plaintiff has allege d that defe ndant knowing ly decide d to continue operating

a defe ctive chair lift in violation of a law or r egulation, plaintiff has fa iled to alleg e that he

-5-actua lly ref used to participate in that activity

. Instead, plaintiff has alleg ed that, when he saw the chair lift operator loading the chair s to full capa city
, he direc ted the opera tor to adopt his safe ty measure of running at one-qua rter capa city

. The operator 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 pur sue his obje ction. Plaintiff did not a lleg e that he was operating the chair lift or t hat defendant ordere d him to do something that he ac tu al l y re fused to do. Plaintiff complained to and questioned th e decision of Fletc her and Carlson to continue
operating the chair lift at full capa city
, but such protestations are not a “re fusal to participate” under se ction 20 of the Whistleblower Ac t. See Sardiga , 409 I ll. App. 3d at 62. ¶ 29 Plaintiff has failed to alleg e that he a ctually ref used to participate in an illeg al activity
, and there fore he has not stated a claim fo r re t al iation under section 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 em ploy ee may be discharg ed “ ‘for any

rea son or no rea son

. ’ ” T u r n er v. Mem orial Medic al Center
, 233 I ll. 2d 494, 500 (2009) (quoting Zi mm er ma n v. Buchhe it of Sparta, Inc.
, 164 I ll. 2d 29, 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 s t ate a valid
reta liatory discharg e cause of action, an employ ee must alleg e that (1) the employ er discharg ed the employ ee, (2) in reta liation fo r t h e empl oy ee’ s activities, and (3) that the di scharg e violates a clea r mandate of public policy .” Turner
, 233 I ll. 2d at 500. The exception is “a limit ed an d narr ow cause of action.” Turner
, 233 I ll. 2d at 500. I f the employ er has a val i d
, n o n prete x tual basis for discharg ing the employ ee, the element of

causation is not met. Ha r t l ein
, 151 I ll. 2d at 160. The employee must identify a clea r and specific man d at e of public policy as opposed to a broad, g ener al, or vague statement that does not provide specific guidance or is prone to multipl e interpre tations. Turner
, 233 I ll. 2d
at 503. “Unless the employ ee identifies a clea r mandate of public policy that is violated by the employ ee’ s discharg e, the complaint will not state a cause of ac tion for reta liatory discharg e.” Turner , 233 I ll. 2d at 503. ¶ 32 Gene rally
, the issue of reta liation is a question for the trier of fac t to resolve. Turner
, 233 I ll. 2d at 501 n.1. Howeve r, the issue of whether a public policy exis ts, and the related issue of whether the employ ee’ s discharg e undermines the s tated publi c poli cy , are questions of law for the cour t to decide. Turner , 233 I ll. 2d at 501. ¶ 33 In his reta liatory discharg e claim, plaintiff alleg ed that 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 operational issues. Plaintiff alleg ed that the public policy is rooted i n t h e Safety Act, the regulations promulg ated by t h e 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 lifts that cause injuries. ¶ 34 Plaintiff also alleg ed that he was discharg ed in reta liation for re p o rt i n g t h e h az ard to

-6-defe ndant, refusing to allow the s ki lift to be operated in violation of safety standards, and

informing defe ndant that continuing to ope rate the ski lift at full capa city was unsafe 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 state a cause of action, and there fore the trial court corr ectly dismiss ed it under section 2-615 of the Code. Specifica lly
, d ef en d an t 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 argues that his alleg ations stated a claim of reta liatory discharg e, and ther efor e his claim should not have be en dismissed. We ag ree

.

¶ 37 a. Public Policy ¶ 38 Plaintiff alleg ed that a cle ar ma ndate of public policy require s the operators of ski lifts
to maintain and opera

te them safe ly and to cooper ate with the De p artment of L abor in
repor ting safe ty violations and maintenanc e and operational issues. Def endant char acte rizes plaintiff’s alleg ation as a broad, g ener al, and vague statement about “saf ety proce dures” or “public saf

ety” that does not amount to a clear mandate of

public policy

. ¶ 39 Gene rally
, the asce rtainment of public policy and the deter mination of whether the policy is undermined by an employee’ s discharg e are questions of law for the cour ts. Turner , 233 I ll. 2d at 501. Thus, our revie w 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 rol e i n striking “ a proper bal an ce *** among the employ er’ s interest in operating 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.” ( Interna l quotation marks 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 righ t an d j u st and what aff ects the citizens of t he S tate collectively .” (Interna l quotation marks omitted.) Turner
, 233 I ll. 2d at 500. A clea r mandate

o f p ub lic policy “must strike at the hear t of a citizen’s social rig hts, duties, an d responsibilities.” (Interna l quotation marks omitted.) Turner
, 233 I ll. 2d at 501. Also, a clea r mandate of public polic y m u s t b e sufficie ntly specific to put 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 (“ An employ er should not be exposed to liability wher e a public policy

standard is too g ener al to provide any specific guidance or is so vagu e t h at it is subject to differ ent interpre tations.” (Inte r

n a l q u o ta ti o n ma r k s o mi tt e d

. ) )

. O th e r

w is e , e v a lu a

ti n g th e public-policy exception with g ener alized conce pts of fairness and justice will result i n an elimi nation of the at-will doctrine itself. Turner
, 233 I ll. 2d at 5 0 2 -03. Ex amples of public policies too g ener al or vague to be enfor ced in an action for reta liatory discharg e include the rig ht to marry a cowor

ker, product safe ty , promoting quality health car e, and the Hippocratic Oath. Turner
, 233 I ll. 2d at 503. The Turner court explaine d t h e i mportance of balanc ing the interests of e mploy ees, e mploy ers, a nd the public:

-7-“Adhe renc e to a narr ow definition of public policy
, as an element o f a reta liatory discharg e action, maintains the balanc e among the rec og nized interests. Employ ees will be secure in knowing that their j obs are safe if they exercise their rights acc ording to a clea r mandate of public policy

. Employ ers will know th at they may discharg e their at-will employ ees for any or no rea son unless they act contra ry to public p olicy

. Finally
, the public interest in the further ance of its public policies, the stability of employ ment, and the elimination of frivolous lawsui ts is maintained. [C itation.] ” Turner
, 233 I ll. 2d at 507. ¶ 41 Clear mandates of p ub l i c p o l i cy ca n b e fo und in the constitution, statutes, judicial decisions, and safe ty regulations. W heele r v. Caterpillar Tractor Co.
, 108 I ll. 2d 502 (1985). In this case , the Safety Act define s “amuse ment ride” to mean “any ski lift, rope tow, or other device used to transport snow skiers.” 430 I L CS 85/2-2(4)( b) (West 2012). Def endant does
not dispute that the Safety Act g overns the safe operation and maintenanc e of the ski lifts at Villa Olivia. Pursuant to the Safety Act, the Depa rtment of L abor and the CarnivalAmusement Safety Boa

rd promulg ated and formulated definitions, rules, and regulations for the safe installation, repa ir, maintenanc e, use, o p er ation, operator training standards, and inspection of all amusement rides as nece ssary for the protec tion of the g ener al public using them. See 430 I L CS 85/2-6 (West 2012). Specifica lly
, the Direct o r o f L abor adopted a regulation that implements the standards of ANSI B- 77.1, enti t l ed “2006 Passeng er Ropeway s–Aeria l Tramwa y s, Aer ial L ifts, Surfac e L ifts, Tows and Conveyors–Safe ty Requirements (2006).” 56 I ll. Adm

. Code 6000.15(a) (1)( B) (2009). Plaintiff alleg ed that defe ndant’s insist ence on operating the ski lift at full capa city violated many of those standards, which he c ited in his amended c omplaint. ¶ 42 In Mitee Race rs, Inc. v. Carnival-Amuseme nt Safety Board
, 152 I ll. App. 3 d 8 1 2 , 817 (1987), we thoroughly examined the leg islative history of the Safety Act and deter mined that the l eg islature int ended to regulate all mecha nized amusement rides prese nting a potential dan ger t o t h e public. We noted that the Safety Act was passed in response to numerous injuries that resulted from amusement-r ide acc idents, including a serious acc ident at S ix 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 m ec h aniz ed amusement ride s in the interests of pre ventingdang er to children, or any other users of the rides.” Mitee Rac ers , 152 I ll. App. 3d at 819. ¶ 43 Consist ent with Mitee Race rs , we ag ree wit h p l ai n t i ff t h at t h e S af ety Act, and the
regulations promulg ated there under, establish a clea r mandate of public policy that operators maintain and operate ski lifts safe ly and to cooper ate wi t h t h e Depa rtment of L abor in
repor ting safety violations and maintenance and operational issues. Th i s n arrowly define d public policy protec ts the interest of preve nting dang er to skiers and other passeng ers of the chair lifts. We further co n clude that plaintiff’s termination, as alleg ed in his reta liatory discharg e claim, undermined that clea r mandate of public policy by stifling the willingness of other e mploy 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

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

are operated i n acc ordanc e with prec ise safe ty regulations. The public policy of protecting ski-lift passeng ers strikes at the hear t of a citizen’s social rig hts, duties, and responsibilities.

-8-See Turner
, 233 I ll. 2d at 501. The ANSI Code violations that plaintiff alleg ed show that the

public policy is sufficie ntly specific to put defe ndant on notice that its employ ment decisions relating to that policy

could expose it to l iability . See Turner , 233 I ll. 2d at 503. ¶ 45 Our de cision is supported by Carty v. Suter Co. , 371 I ll. App. 3d 784 (2007), in which the discharg ed em p l o y ee alleg ed that he observe d his employ er, a food manufa cturing
company , using expired buttermilk and mislabeling its food products by listi ng cer tain ingr edients that wer e not in the products. Carty
, 371 I ll. App. 3 d at 7 85. 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 regulations.” Carty
, 371 I ll. App. 3d at 785. The trial court g rante d the employ er summar

y judgme nt. ¶ 46 On ap p ea l, we reve rsed the summary judgme nt, observing that “ ‘[t] here is no public policy more im portant or more fundam en t al t h an the one favor ing the eff ective protection

o f t h e 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 protec t the public health. 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 associa t ed wi t h t h e 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 thei r conce rns, as plaintiff attempted to do.” Carty
, 371 I ll. App. 3d at 789. L ike the Food, Drug
, and Cosmetic A ct in Carty
, the Safety Act cr eate s a compre hensive sche me re lating to public sa fety

. ¶ 47 Def

endant cites Turner for the prop osition that skier safe ty is too g ener al to be a cle ar mandate of public policy

. In Turner
, a respiratory thera pist alleg ed that his hospital employ 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. Wit 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 supr eme c ourt deter mined that the employ ee’ s retaliator y discharg e action require d a more specific expression of public policy than “patient safe ty .” 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 standards or reg ulations. Her e, plaintiff alleg ed t h at the clea r mandate of public policy of ensuring skier safe ty is rooted in the Safety Act, the regulations promulg ated by the Depa rt m en t 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 lifts that cause injury

. In Turner
, the plain t i ff i n v o k ed subjective standards and prac tices, but in this case plaintiff alleg ed multipl e violations of a compre hensive scheme of safe ty -re lated statutes and
regulations.

¶ 49 b. Insubordination ¶ 50 De fe n d an t al s o as serts that plaintiff eng ag ed in insubordination, which cre at ed a nonprete x tual basis for his termination, and there fore the element of causation is not met and his discharg e was not reta liatory

. Def endant argues that, even if taken as true, plaintiff’s

-9-alleg ations es t abli sh that he was discharg ed for insubordination in that he attempted to

counter mand Fletc her’ s order to the operator to operate t h e ski lift at full capa city
, afte r Fletc her had consulted with Carlson about the issue. Whether defe ndant discharg ed plaintiff for insubordination or in reta liation for attempting to comply with safe ty regulations 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 issue 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 clea rly appar ent that no set of fa cts ca

n be prove d that would entitle the plaintiff to re cover y ).

¶ 51 2. Section 2-619(a )(9) : Affirmative Matter ¶ 52 Def

enda n t n ex t ar gu es that the reta liatory discharg e claim must be dismiss ed under section 2-619(a)( 9) of the C ode because (1) plaintiff did not have an obj ective
, go o d-fa ith b el i ef t h at the chair lift violated the law and (2) sections 2-201 and 2-109 of the L o ca l Gover nmental and Gover

nmental Employ ees Tort Immunity Act (Tort Immunity 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 “th e cl aim 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) (Wes t 2 0 1 2 ). 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. 2d 359, 367-68 (2003) (quoting In re Chicago Flood Liti gation
, 176 I ll. 2d 179, 189 (1997))

. Howeve r, conclusions of law or fac t 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 ruling on a motion to dismiss pursuant to section 2-619(a )(9) is revie wed de novo

. Van Mete r , 207 I ll. 2d at 368. In revie wing a ruling on a motion to d i s m iss under section 2- 619(a) (9), the rele vant inquiry is “ ‘whe ther the exis tence of a g enuine issue of materia l fac t should have prec l u d ed the dismiss al or, absent such an issue of fac t, whether dismiss al is
proper as a matter of law.’ ” Sandholm v. Kueck er , 2012 I L 111443, ¶ 55 (quoting Kedzie & 103rd Currency Ex change, I nc. v. H odge , 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 t h e m o t i v e o f t h e employ er in evaluating 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 reta liatory discharge. Mi ch a el v. Precision Alliance Group, LLC
, 2011 I L App (5th) 100089, ¶ 23. When a court evaluates 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 violating 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 good-f aith belief that defe ndant was violating the law. How ev er , wh et her plaintiff had a
g ood-fa ith belief that def

endant’ s operation of the ski lift viol ated the la w is 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

-10-of a fac tual issue prec ludes dismiss al under section 2-619( a)( 9) of the Code. See Chandler

v. Illinois Central R.R. Co.
, 207 I ll. 2d 331, 341 (2003) (the exis tence of a g enuine issue of materia l fac t prec ludes dismissal under section 2-619)

.

¶ 56 b. Tort Immunity Act ¶ 57 Finally
, defe ndant ar gu es that the retaliatory discharg e claim war rants dis missal under section 2-619(a )(9) of the Code beca use sections 2-201 and 2-109 of the Tort Immunity Act confe r immunit y from liability for plaintiff’s te r mi n a ti o n

. Se c ti o n 2 -201 of the Tort Immunity Act provides that “[e]x cept as otherwise provided by Statute, a public employ ee serving in

a position involving the 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 such discretion even though abused.” 745 I L CS 10/2-201 (West 2012). Our supreme court has rec og nized that section 2-201 “off ers the most sig nificant protec tion aff orded to public employ ees under the Act.” Arteman v. Clint on Community Unit School District No. 15
, 198 I ll. 2d 475, 484 (2002). ¶ 58 Additionally
, s ec t i o n 2 -1 09 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 wher e the emplo ye e is not liable.” 745 I L CS 10/2-109 (West 2012). Tog ether
, sections 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 i s not liable for an injury resulting from an act or omission of its

em p l oy ee wher e the employ ee is not liable’ [citation]
, this broad discretionar y immunit y applies to the entities themselves.” (Interna l quotation marks omitted.)). ¶ 59 Relying upon Smith v

. W aukegan Park District
, 231 I ll. 2d 111 (2008), plaintiff ar g ues that sections 2-201 and 2-109 of t he Tort I mmunity Act do not af

ford de fenda

nt immuni ty for reta liatory discharg e. In that case , the employ ee sued his employ er, the Waukeg an Park District (Dis trict), for reta liatory discharg e beca use he was terminated afte r filing a claim under 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 Immunity Act did not entitle the District to dismi ssal of the re taliatory discharg e cla im pursuant to section 2-619(a )(9) of the Code. ¶ 60 The employ ee s uffe red a work-r elated injury that require d medical treatment and time off work, and he filed a worke rs’ compensation claim. Upon the employ ee’ s return to work, the Dis trict insisted that he submit to a drug and alcohol test. When the employ ee refuse d, his supervisor terminated his employ ment. The complaint alleg ed that the drug -test demand

was “r etaliatory hara ssment” for filing the worke rs’ compensation claim and that the discharg e wa s retaliator

y

. ¶ 61 Advocating dismiss al under section 2-619(a )(9)
, the District argued that it was immune under section 2-109 of the Tort Immunity Act beca use the supervisor made the termination decision and only a municipal employ er, and not its employ ees, can be liable for the tort of
reta liatory discharg e. Smith
, 231 I l l. 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 o r o mi s s ion of its employe e wher e the employ ee is not liable.’ ” (Emphasis i n

-11-orig inal.) Smith
, 231 I ll. 2d at 117 (quoting745 I L CS 10/2-109 (West 2002)). 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 discharg e beca use the employ er, not the employ ee, ultimately

cause s the injury .” Smith , 231 I ll. 2d at 117. ¶ 62 Alternatively , the Dis trict argued that the c ombined eff ect of sections 2-201 a

nd 2-109 of the Tort Immunity Act g ave the District discretionar y immunit y beca

use the supervisor’ s termination decision was a discretionar y act and a deter

mination of policy

. Smith
, 231 I ll. 2d
at 114. The District conclude d that section 2-201 immuniz ed the supervisor and that the District was c orre spondingly immune pursuant to section 2-109. Ag ain, the supreme cour t disag ree d, reiter ating its position that “this argume nt fails beca use it incorre ctly views the employ ee as the pertinent actor when it is the employ er who ‘ac ts’ wit h i n the meaning of section 2-109 in a r etaliatory discharg e.” Smith , 231 I ll. 2d at 118. ¶ 63 In deter

mining that the Tort Immunity Act did not confe r immunity on the District, the Smith court emphasized that (1) section 4(h) o f t h e Workers’ Com pensation Act prohibits
any employ er from discharg ing an employ ee for exercising his worke rs’ compensation rig hts (820 I L CS 305/4(h) (West 2002)) and (2) section 2-101(c ) of the Tort Immunity Act leave s unaff ecte d the liability
, if any , of a local public entity or public employ ee under the Workers’ Compensation Act (745 I L CS 10/2-101(c) (West 2002)). Smith
, 231 I ll. 2d at 119. The Smith
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 posses s n o immuniz ed discretion to discharg e employ ees for exercising their worke rs’ compensation rights.” Smith
, 231 I ll. 2d at 119. ¶ 64 Def

endant arg

ues that Smith denies immunit y under sections 2-201 and 2-109 of the Tort Immunity Act only i n re t ali atory discharg e case s wher e the reta liation is provoked by the filing of a worke rs’ compe n s ati on claim. Def endant distinguishes Smith from this case , wher e plaintiff’s discharg e alleg edly was based on a disa gree ment with manag ement over the method of opera

ting 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 guards of section 4(h) of the Workers’ Compensation Act and sec tion 2-101(c) of the Tor t I mmunity Act do not lend additional support to plaintiff’s re taliatory discharg e cla im. ¶ 65 Consist ent with Smith
, we ag ree with plaintiff that sections 2-201 and 2-109 of the Tort Immunity Act are not aff

irmative 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 atory discharg 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 nor

Carlson is the “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. Our conclusion that defe ndant is not immune from liability for plaintiff’s discharg e obviates the need to deter mine whether the acts of Fletc her and Carlson
actua lly wer e discre tionary

.

¶ 66 CONCLUSI ON ¶ 67 For

the pre cedingrea sons, the dismiss al of plaintiff’s whist leblower claim is aff

irmed,

-12-the dismiss al of plaintiff’s reta liatory discharg e claim is reve rsed, and the cause is rema nded for f urther pr ocee dings c onsistent with thi s opinion.

¶ 68 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

-13-