Bajalo v. Northwestern University

• Decision Date: 15 December 2006
• Docket Number: No. 1-05-3175.,1-05-3175.
• Citation: 307 Ill.Dec. 902,860 N.E.2d 556
• Parties: Nedeljka BAJALO, Plaintiff-Appellee, v. NORTHWESTERN UNIVERSITY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

860 N.E.2d 556

307 Ill.Dec. 902

Nedeljka BAJALO, Plaintiff-Appellee, v. NORTHWESTERN UNIVERSITY, Defendant-Appellant.

No. 1-05-3175.

Appellate Court of Illinois, First District, Sixth Division.

December 15, 2006.

Frederic J. Artwick, Patricia M. Petrowski, and Laura D. Warren, Sidley and Austin LLP, Chicago, for Appellant.

John Thomas Moran, Jr., John T. Moran & Associates, Chicago, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Plaintiff, Nedeljka Bajalo, brought an action for retaliatory discharge against defendant, Northwestern University, predicated upon defendant's failure to renew her employment contract. Defendant moved for judgment on the pleadings on ground that plaintiff failed to state a cause of action because Illinois law does not recognize a claim for retaliatory discharge based upon the failure to renew an expired employment contract. The circuit court denied defendant's motion on the pleadings, and certified the following question for interlocutory appeal (155 Ill.2d R. 308): "May a contract employee who engaged in protected whistle blowing activity bring a cause of action for retaliatory discharge when the employer fails to renew the employee's written contract [?]"

I. BACKGROUND

On January 12, 2005, plaintiff filed a complaint stating a single state-law claim for retaliatory discharge. The complaint alleges the following pertinent facts. Defendant is an institution of higher education that engages in medical research, substantially funded by the federal government. Some of defendant's medical research involves experiments performed on live laboratory animals through its Center for Comparative Medicine (Center). As such, defendant must comply with the Federal Animal Welfare Act (Act) (7 U.S.C. § 2131 et seq. (2002)), which aims "to insure that `animals intended for use in research facilities * * * are provided humane care and treatment'" (7 U.S.C § 2131(1) (2002)). Under the Act, the Secretary of Agriculture "promulgat[es] standards" governing the "humane handling, care, treatment, and transportation of animals by * * * research facilities." 7 U.S.C. § 2143(a) (2002). As a research facility falling under the purview of the Act defendant was required to register with the Secretary of Agriculture (7 U.S.C. § 2136 (2002)) and to establish an oversight committee to ensure that the rules and regulations promulgated by the Secretary were being enforced (7 U.S.C. § 2143(b)(1) (2002)). As a result, defendant established the Northwestern University Animal Care and Use Committee (NUACUC) to review and approve "protocols for the humane care * * * of animals" and "oversee all animal use" at defendant's facilities.

The complaint further alleges that plaintiff, a veterinarian, was hired by defendant on May 1, 2000, to work for a one-year period as a senior research associate at defendant's Center. The complaint alleges that defendant renewed plaintiff's appointment for a second one-year period beginning in May 1, 2001. Defendant renewed plaintiff's contract for a third one-year period beginning May 1, 2002. According to the complaint, plaintiff performed "all terms, conditions and requirements of her position in a satisfactory manner."

The complaint further alleges that beginning in September 2001, plaintiff became concerned with "billing irregularities" and improper laboratory procedures which she believed jeopardized the health and welfare of the animals, as well as the quality of research being performed at the Center. For the next two years, plaintiff continued to address these concerns, inter alia, to members of the NUACUC committee, her supervisors, her department chair, the vice president of research, the director of finances and administration, inspectors of the United States Department of Agriculture, and defendant's provost.

According to the complaint, on January 9, 2003, plaintiff received a letter of insubordination from her supervisor. On January 29, 2003, plaintiff informed the United States Department of Health and the National Institute of Health, in writing, of her concerns regarding animal care and caretaker safety in defendant's laboratories. On February 6, 2003, defendant informed plaintiff that it would not renew her written contract when it expired on April 30, 2003. The complaint further alleges that on the same day defendant "terminated" plaintiff by telling her that she should not return to the Center or either campus of defendant for the remainder of her appointment. Moreover, according to the complaint, in July 2003, plaintiff was offered a position in defendant's gastroenterology laboratory, but defendant's human resources department denied the laboratory's request to employ plaintiff and informed the laboratory that the Center would not "grant plaintiff any access to [its] animal care facility."

The complaint alleges that plaintiff was discharged from her employment in retaliation for exercising her rights under the federal Animal Welfare Act. The complaint specifically alleges that plaintiff was discharged because she reported alleged violations of the Act to her supervisors, to the United States Department of Agriculture and to the National Institute of Health. Some of the alleged violations that plaintiff reported included inadequate training of laboratory personnel and lack of available medicine to relieve the unnecessary pain inflicted on research animals. 9 C.F.R. §§ 2.32(a), (b), (c)(1) through (c)(4) (1994). According to the complaint, under the Animal Welfare Act:

"Training and instruction of personnel must include guidance in at least the following areas * * * [m]ethods whereby deficiencies in animal care and treatment are reported, including deficiencies in animal care and treatment reported by an employee of the facility. No facility employee, committee member, or laboratory personnel shall be discriminated against or be subject to any reprisal for reporting violations of any regulation or standards under the Act. 9 C.F.R. § 2.32(c)(4)."

On April 1, 2005, defendant filed its answer, denying that it discharged plaintiff and asserting that plaintiff continued to be employed until the expiration of her contract on April 30, 2003. In support of this contention, defendant alleged that it continued to pay full salary and benefits to plaintiff through the expiration of her employment contract. Defendant further denied that it retaliated against plaintiff and instead alleged that it elected not to renew plaintiff's employment contract because she had demonstrated "repeated instances of flagrant insubordination towards her supervisors."

On May 6, 2005, defendant moved for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2002)) for failure to state a claim upon which relief may be granted. At a hearing on that motion, defendant argued that Illinois law does not recognize a claim of retaliatory discharge for the failure to renew an expired employment contract.

On August 26, 2005, the trial court denied defendant's motion for judgment on the pleadings. In doing so, the court held that in "those situations in which * * * an employee has been involved in a year-to-year contract renewal and if the employee is able to establish that the failure to renew the contract was for exercising some protected right, that the doctrine of retaliatory discharge would be applicable." Recognizing that "this is a new and novel situation," the trial court certified the following question for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308): "May a contract employee who engaged in protected whistleblowing activity bring a cause of action for retaliatory discharge when the employer fails to renew the employee's written contract [?]" Following a supervisory order from our supreme court, we granted leave to appeal and now address this question.

As with all questions of law, we review questions presented for interlocutory appeal under a de novo standard. United General Title Insurance Co. v. AmeriTitle, Inc., 365 Ill.App.3d 142, 147, 301 Ill.Dec. 838, 847 N.E.2d 848, 852 (2006). In an interlocutory appeal, the court's examination is limited to the questions certified by the trial court, and a reviewing court will ordinarily not expand the certified question under review to answer other questions that could have been included but were not. United General Title, 365 Ill.App.3d at 147, 301 Ill.Dec. 838, 847 N.E.2d at 852.

II. ANALYSIS

In Illinois, in order to establish a tort claim for retaliatory discharge, a plaintiff must show (1) that she has been discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy. Zimmerman v. Buchheit of Sparta Inc., 164 Ill.2d 29, 35, 206 Ill.Dec. 625, 645 N.E.2d 877, 881 (1995). Defendant's primary assertion is that the failure to renew a fixed-term employment contract does not equate to a "discharge." Plaintiff contends that the purpose of retaliatory discharge is to protect an employee's right to enforce compliance by the employer with public policy and that the term "discharge" should be given a liberal interpretation so as not only to include the termination or dismissal of at-will employees, but also the failure to renew a contract of an ongoing employee. We disagree.

The tort of retaliatory discharge has a relatively short and unique history in our state. After first being introduced, the tort followed a short period of expansion, but was quickly curtailed. Illinois law has long upheld the "at-will" employment doctrine under which an employer may terminate an employee at any time with or without cause. Buckner v. Atlantic Plant Maintenance Inc., 182 Ill.2d 12, 19, 230 Ill.Dec. 596, 694 N.E.2d, 565, 569 (1998).

The tort of retaliatory discharge has developed as an exception to this rule and was first recognized in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 182, 23...