Illinois, like almost every other state, adheres to the centuries-old doctrine of employment at will, which means that either an employer or an employee may terminate their relationship at any time, without notice and without reason. However, an employer’s ability to terminate someone is constrained by certain statutory limits, including the provisions of Title VII of the Civil Rights Act of 1964 and other federal, state, and local nondiscrimination laws. In addition, for about 40 years now, Illinois courts have recognized a common-law tort claim of retaliatory discharge as another exception to employment at will. (A tort is a wrongful act or personal injury.) A recent decision by the Illinois Appellate Court reinforces the narrow scope of retaliatory discharge claims.
Seeds of discontent
Lauren Gonzales, who is Hispanic, worked as a receptionist for Garfield Park Conservatory Alliance (GPCA). Her job was to sit at the front desk of the conservatory in Chicago’s Garfield Park and greet visitors. According to Gonzales, a security guard was stationed in the lobby, but only about half the time. She claimed she was alone on duty with no security guard on March 31, 2017, when a visitor approached her aggressively and stated, “I am from the Trump administration and this is your last day.” She said she felt “incredibly threatened.”
Gonzales immediately reported the incident to her supervisor at the GPCA and then to an official at the Chicago Park District, a separate entity. In her reports, she expressed various concerns about lobby security. After her complaints didn’t yield the results she wanted, she filed a complaint with the Occupational Safety and Health Administration (OSHA) on June 5, raising many of the same issues.
Eventually, the local enforcement office concluded that Gonzales’ complaint didn’t list a specific hazard that OSHA has jurisdiction over. OSHA therefore dismissed her complaint on June 15, but not before contacting the GPCA, which responded with written assurance that a security guard is posted in the lobby at all times the conservatory is open to the public.
Meanwhile, the GPCA had issued disciplinary notices to Gonzales for excessive tardiness and insubordination, including a warning that additional infractions would result in termination. The GPCA and Gonzales dispute the merits of the discipline and whether Gonzales ever spoke with her supervisor about her OSHA complaint. Then, on June 18, Gonzales didn’t show up for a scheduled shift (she claims her supervisor had given employees permission to swap shifts and she had asked a coworker to cover the shift). Two days later, the GPCA fired her for “excessive tardiness, call offs and insubordination.”
Gonzales filed a common-law retaliatory discharge claim, alleging she was terminated for voicing her concerns about workplace security and safety measures and for filing the OSHA complaint. She also claimed that the GPCA’s stated reasons for firing her were a pretext, or excuse, for retaliatory discharge. The Circuit Court of Cook County entered summary judgment for the GPCA, dismissing the case without a trial, and Gonzales appealed.
The Illinois Appellate Court observed that the tort of retaliatory discharge is a “narrow exception” to the general rule that an at-will employee may be terminated at any time for any reason. To establish such a claim, Gonzales needed to show:
- She was discharged.
- The discharge was in retaliation for her protected activities.
- The discharge violated a “clear mandate of public policy.”
While the court acknowledged that there is no precise definition of the term “clear mandate of public policy,” in practice Illinois courts have found the public policy element is met only when an employee is discharged (1) in retaliation for exercising workers’ compensation rights or (2) for reporting illegal or improper conduct (i.e., “whistleblowing”).
For retaliatory discharge claims of the whistleblower variety, the employee must identify a specific and clear mandate of public policy, normally embodied in a law or regulation. A “broad general statement of policy” will not suffice. Thus, courts have upheld retaliatory discharge claims in cases where employees were fired for informing the police about a coworker’s criminal activity and for objecting to ski lift procedures that violate safety rules found in state law.
Failing to germinate
But Gonzales merely alleged that she suffered fear and apprehension for her safety and the safety of other GPCA employees and visitors. She didn’t claim that her employer violated any specific law or regulation. Generalized fear, said the court, is exactly the kind of broad general policy statement that cannot support a retaliatory discharge claim.
Gonzales countered that she was fired in retaliation for filing an OSHA complaint. She maintained that even though the agency found her complaint lacked merit, it was sufficient to support her retaliation claim because she had a good-faith belief in the GPCA’s wrongdoing. The problem was, she didn’t allege in her lawsuit that she believed in good faith that the GPCA violated any OSHA standard (and, for what it’s worth, we doubt she could have made that allegation credibly). Nor did she testify by deposition or affidavit that she held such a good-faith belief.
Without anything in the record indicating that Gonzales reasonably thought the GPCA’s security shortcomings violated any specific law or regulation, her retaliatory discharge claim failed. Gonzales v. Garfield Park Conservatory Alliance, 2020 IL App (1st) 190739-U (Feb. 4, 2020).
Bouquet of flowers
Although the result in this case isn’t surprising, we are once again heartened that Illinois courts continue to narrowly construe retaliatory discharge claims. Generalized allegations of wrongdoing will not suffice.
It’s also worth noting that the court didn’t get caught up in the dispute over the legitimacy of the GPCA’s bases for disciplining and terminating Gonzales. Had Gonzales been able to allege a solid predicate for her retaliatory discharge claim (such as retaliation for filing a workers’ comp claim), we suspect her claim might have gone to trial, given the dispute over whether the GPCA’s articulated reason for its adverse employment actions was legitimate or pretextual. But because she didn’t even identify a clearly mandated public policy, the court was able to sidestep that dispute.