Vorpagel v. Maxell Corp. of America

• Decision Date: 21 August 2002
• Docket Number: No. 2-01-0729.,2-01-0729.
• Citation: 775 N.E.2d 658,333 Ill. App.3d 51,266 Ill.Dec. 818
• Parties: William VORPAGEL, Plaintiff-Appellant, v. MAXELL CORPORATION OF AMERICA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

775 N.E.2d 658

333 Ill. App.3d 51

266 Ill.Dec. 818

William VORPAGEL, Plaintiff-Appellant, v. MAXELL CORPORATION OF AMERICA, Defendant-Appellee.

No. 2-01-0729.

Appellate Court of Illinois, Second District.

August 21, 2002.

Dwayne Douglas and David S. Weinstein, both of Weinstein & Douglas, P.C., of Waukegan, for appellant.

Michael T. Roumell, Peter A. Steinmeyer, and Michael P. Butler, all of Epstein, Becker & Green, P.C., of Chicago, for appellee.

Justice BYRNE delivered the opinion of the court:

Plaintiff, William Vorpagel, appeals the order of the circuit court dismissing his complaint in which he alleged that defendant, Maxell Corporation of America, discharged him in retaliation for his cooperating in the criminal investigation of a co-employee. Plaintiff contends that the trial court erred in dismissing the complaint because it states a claim for retaliatory discharge even though the co-employee's crime had no connection with plaintiff's work. We reverse and remand.

Plaintiff's first amended complaint, which is at issue here, alleges the following. Defendant employed plaintiff as a warehouse supervisor. Plaintiff had worked for defendant for 17 years without receiving a reprimand of any sort. His immediate supervisor was the warehouse manager, John Maloney.

In 1999, Maloney was charged with various sexual offenses based on his alleged sexual relationship with his minor daughter. At some point, Maloney made incriminating statements to plaintiff. Plaintiff contacted the Lake County State's Attorney's office and reported what Maloney told him. Plaintiff later gave a written statement detailing Maloney's admissions. This statement, along with a supplemental witness list that included plaintiff's name, was tendered to Maloney's attorney in the criminal case. His attorney, in turn, gave the documents to Maloney. Soon after Maloney received plaintiff's statement, Maloney told plaintiff he did not want him working for him any more. On April 19, 2000, Maloney pleaded guilty to two criminal charges and was sentenced to 48 months' probation, including 36 months' periodic imprisonment.

According to plaintiff's complaint, Maloney began an orchestrated effort to fabricate false allegations of misconduct against plaintiff in order to secure his discharge. Maloney got other employees to sign off on false write-ups and grievance complaints and threatened other employees to sign grievances containing false allegations of misconduct by plaintiff. On May 4, 2000, defendant gave plaintiff a written warning that his job performance was substandard in every area and that he would be terminated in 30 days if he did not improve. On June 9, 2000, Maloney, "acting in his official capacity for Maxell," discharged plaintiff. The complaint alleged that plaintiff's discharge was motivated by his cooperation with the criminal investigation against Maloney and as such violated Illinois's public policy favoring the investigation and prosecution of crime.

The trial court granted defendant's motion to dismiss the amended complaint. The court stated that the complaint did not state a cause of action for retaliatory discharge because it alleged that plaintiff was discharged for reporting nonwork-related conduct and because there was no "nexus" between the protected activity and the discharge. After the court denied his motion to reconsider, plaintiff filed a timely notice of appeal.

Plaintiff contends that his complaint states a cause of action for retaliatory discharge. The complaint alleges that plaintiff was fired in retaliation for engaging in a protected activity: assisting in the prosecution of crime. According to plaintiff, the public policy favoring the investigation and prosecution of crime is the same regardless of whether the crime occurs in the workplace. Thus, plaintiff contends that the trial court erred in distinguishing between work-related and nonwork-related crimes. Plaintiff also contends that his complaint adequately alleges a "nexus" between the protected activity and his firing.

Defendant responds that Illinois's courts have repeatedly cautioned against expanding the tort. Further, no reported case has found a cause of action for retaliatory discharge based on a report of nonwork-related criminal conduct.

The trial court dismissed plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)). In ruling on a section 2-615 motion, the court must take as true all well-pleaded facts and draw all reasonable inferences in the plaintiff's favor. Ziemba v. Mierzwa, 142 Ill.2d 42, 46-47, 153 Ill. Dec. 259, 566 N.E.2d 1365 (1991). Dismissal is appropriate only if it is clear that the plaintiff can prove no set of facts that would entitle him or her to recover. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 483, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). We review a section 2-615 dismissal de novo. Stebbings v. University of Chicago, 312 Ill.App.3d 360, 364, 244 Ill. Dec. 825, 726 N.E.2d 1136 (2000).

The general rule in Illinois remains that an employer may fire an at-will employee for any reason or no reason. Stebbings, 312 Ill.App.3d at 365,244 Ill. Dec. 825,726 N.E.2d 1136; Howard v. Zack Co., 264 Ill.App.3d 1012, 1021, 202 Ill.Dec. 447, 637 N.E.2d 1183 (1994). In Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), the supreme court carved out an exception to the rule by creating a cause of action for an employee who was fired in retaliation for filing a worker's compensation claim. In Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981), the court expanded the retaliatory discharge tort to cover "whistle-blowers" who were discharged for cooperating in a criminal investigation. The elements of a retaliatory discharge cause of action are that a plaintiff (1) has been discharged; (2) in retaliation for his or her activities; and (3) the discharge violates a clear mandate of public policy. Stebbings, 312 Ill.App.3d at 365,244 Ill.Dec. 825,726 N.E.2d 1136.

In Palmateer, the court found that Illinois's public policy clearly favors the investigation and prosecution of crime and, accordingly, protects "citizen crime-fighters." The court stated, "There is no public policy more basic, nothing more implicit in the concept of ordered liberty * * *" than the enforcement of a state's criminal code. Palmateer, 85 Ill.2d at 132, 52 Ill.Dec. 13, 421 N.E.2d 876. The court further emphasized the importance of this policy, stating:

"`Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy.'" Palmateer, 85 Ill.2d at 132-33, 52 Ill.Dec. 13, 421 N.E.2d 876, quoting Joiner v. Benton Community Bank, 82 Ill.2d 40, 44, 44 Ill.Dec. 260, 411 N.E.2d 229 (1980).

Significantly, Palmateer never identifies the specific crime that the plaintiff reported and whether it was work related. It appears that the complaint did not include this information, and the court did not find the omission significant. The opinion states only that the plaintiff was discharged for supplying information to a law-enforcement agency "that an IH employee might be violating the Criminal Code." Palmateer, 85 Ill.2d at 132, 52 Ill. Dec. 13, 421 N.E.2d 876.

The pronouncements in Palmateer about the importance of enforcing the state's criminal laws apply with equal force whether or not the alleged crime is connected with a plaintiff's employment. Nothing in Palmateer indicates an intention to restrict the cause of action to employees who report crimes directly connected with their employment. In fact, the allegations held to state a cause of action in Palmateer are nearly identical to those in this case except that here plaintiff names the specific crime of which Maloney was suspected. There is no reason for reaching a different result in this case merely because plaintiff supplied details that the supreme court deemed unnecessary.

Defendant cites numerous cases for the proposition that Illinois's courts have continually declined to expand the scope of the retaliatory discharge tort. However, plaintiff is not arguing for an expansion of the tort. Rather, his claim is already within its contours as defined in Palmateer.

Defendant also argues that all of the reported cases concern crimes occurring within or connected to a plaintiff's workplace. As noted, Palmateer does not specifically state whether the crime was connected with plaintiff's employment. With that important exception, defendant's empirical analysis is correct. However, it is of limited value in deciding whether retaliatory discharge applies to the reporting of a fellow employee's private conduct. The cases defendant cites were simply decided on their facts. Defendant cites no case that specifically refused to find a cause of action based on the reporting of nonwork-related conduct. As plaintiff points out, an employee is more likely to encounter criminal conduct while on the job than he is to learn about purely private, nonwork-related conduct of a fellow employee, and this presumably accounts for the fact that cases involving work-related conduct are more common.

Defendant also contends that plaintiff cannot state a cause of action because he did not "report" any criminal conduct. Rather, it appears that the investigation of Maloney was already underway and plaintiff merely agreed to give a statement and provide potential testimony of unknown evidentiary value. This contention, too, is refuted by Palmateer. The court observed that public policy favored the plaintiff's volunteering of information to a law-enforcement agency. It also protected his "agreement to assist in the investigation and prosecution of the suspected crime." Palmateer, 85 Ill.2d at 133, 52 Ill.Dec. 13, 421 N.E.2d 876. Similarly, in Bartley v. University Asphalt Co., 129 Ill.App.3d 231, 84 Ill.Dec. 539, 472...