Labor & Employment Law I MAY 14, 2018

Court Expands Retaliatory Discharge Tort; Rejects Whistleblower Claim

Kenrick Roberts was director of medical programs at Malcolm X College. He reported directly to and worked closely with Dr. Micah Young, the dean of health sciences and career programs at Malcolm X and Dr. Mario De La Haye, the associate dean of health sciences and career programs. Roberts was responsible for vetting potential instructors for teaching various courses and curriculum.

A course of study called HeaPro 101 included instruction on phlebotomy and electrocardiograms (EKG).

On or about January 15, 2015, Roberts alleged that he became aware of complaints that the instructor assigned to teach HeaPro 101 was unqualified to teach the course and curriculum. He met with the HeaPro 101 instructor and questioned her qualifications.

On or about January 15, 2015, Roberts sent an e-mail to Dr. Young and Dr. De La Haye complaining about the unqualified instructor.

Following his January 15, 2015 e-mail, Roberts made verbal complaints to Dr. Anthony Munroe, president of Malcolm X College. He informed Dr. Munroe that he had been intentionally excluded from the hiring process of the unqualified instructor and he refused to support the assignment.

On February 25, 2015, Roberts sent an e-mail to the president, vice president, and associate provost again complaining about the unqualified instructor assigned to teach HeaPro 101.

Upon receipt of the February 25, 2015, e-mail. Dr. Christopher Robinson-Easley, vice president of Malcolm X College, requested that Roberts meet with her regarding the complaints in the e-mail. Dr. Robinson-Easley was the individual who had selected and assigned the unqualified instructor.

After receiving the request from Dr. Robinson-Easley, Roberts sent an e-mail to Aaron Allen, executive director of labor and employee relations. Roberts told Allen that he felt uncomfortable about Dr. Robinson-Easley’s request.

Following the meeting with Dr. Robinson-Easley, Roberts was excluded from important meetings, decisions, and discussions regarding programs that were under his responsibilities as director of medical programs.

Roy Walker, the associate dean of health sciences and career programs at Malcolm X College, informed Roberts that Dr. Robinson-Easley “has an axe to grind with you” because of the HeaPro 101 complaints. On June 28, 2015, Dr. Munroe instructed Roberts to file an equal employment opportunity complaint against Dr. Robinson-Easley for retaliation in connection with Roberts’ complaints. On August 7, 2015, Roberts was told that he was terminated from his position as director of medical programs at Malcolm X College.

Roberts filed his original complaint on September 15, 2015. He brought three causes of action: retaliatory discharge, violation of the Whistleblower Act, and wrongful termination.

A second amended complaint alleging the same causes of action as the prior complaints was filed on June 27, 2016. Defendant moved to dismiss the retaliatory discharge claim and whistleblower claim pursuant to section 2-615(a) of the Illinois Code of Civil Procedure. The circuit court granted the motion with prejudice. Roberts appealed.

Illinois follows the at-will employment rule, which means a noncontracted employee is one who serves at the employer’s will, and the employer may discharge such an employee for any reason or no reason. Illinois recognizes an exception to the general at-will employment rule when the discharge violates a clear mandate of public policy.

In order to state a cause of action for retaliatory discharge, an employee must allege (1) the employer discharged the employee, (2) in retaliation for the employee’s activities, and (3) the discharge violates a clear mandate of public policy.

The only issue concerning Roberts’ retaliatory discharge claim was whether it stated a violation of a clear mandate of Illinois public policy. The existence and ascertainment of public policy is a question for the court to decide.

Roberts alleged his discharge for complaining about the unqualified instructors violated a specific public policy: “the right to obtain the benefits of a post-secondary education through federal and state funded programs.”

He cited to Title IV of the Higher Education Act of 1965 (20 U.S.C. §§ 1070-1099d) and the appeals court took judicial notice of the Higher Education Loan Act (Act) (110 ILCS 945/0.01).

The Illinois General Assembly has concluded the purpose of providing public funds for higher education is to provide the fullest opportunity for recipients to learn and develop their intellectual and mental capacities and skills. The purpose of establishing both state and federal loan programs is to ensure individuals without the private means of paying for a college education are given access to funds to better develop themselves intellectually so as to provide a greater contribution to our state and country.

The court concluded the public policy behind the federal Higher Education Act of 1965 and Illinois’s Higher Education Loan Act would be seriously undermined if defendant was allowed to act in the manner alleged in Roberts’ complaint.

If defendant accepts loan money but uses it to hire incompetent and unqualified individuals who cannot properly instruct students who are enrolled in classes like HeaPro 101, defendant has essentially defrauded both the student and the taxpayer.

The appeals court found Roberts’ complaint demonstrated a clear mandate of public policy and reversed the dismissal of his retaliatory discharge count.

Roberts also argued the circuit court erred in dismissing his Whistleblower Act claim. The Whistleblower Act provides: “An 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. In order to sustain a cause of action under the Whistleblower Act, a plaintiff must establish (1) a refusal to participate in an activity that would result in a violation of a state or federal law, rule, or regulation and (2) the employer retaliated against the employee because of said refusal.

The Whistleblower Act protects employees who either contact a government agency to report the activity or refuse to participate in that activity. There was no allegation in the second amended complaint that defendant offered or demanded Roberts’ participation in the allegedly wrongful activity.

While Roberts alleged he refused “to cover things up,” “be quiet,” and “look the other way,” there was no allegation the defendant asked, requested, or demanded such action.

In order to state a claim under the Whistleblower Act, there must be a request or demand by the employer that the employee engage in the illegal or unlawful conduct. In this case, Roberts failed to allege the defendant ever made a request or demand he approve or sanction the hiring of the allegedly unqualified instructor. Accordingly, he did not state a claim under the Whistleblower Act.

The court reversed the dismissal of Roberts’ retaliatory discharge claim but affirmed dismissal of the whistleblower claim.

The case is Kenrick Roberts v. Board of Trustees Community College District No. 508, 2018 IL App (1st) 170067.