FILED
2017 IL App (4th) 160492 March 24, 2017
Carla Bender
4th District Appellate
NO. 4-16-0492
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
BRADLEY L. SWEENEY, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Macon County
THE CITY OF DECATUR, ) No. 16L18
Defendant-Appellee. )
) Honorable
) Albert G. Webber,
) Judge Presiding.
PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 In February 2016, plaintiff, Bradley L. Sweeney, filed a two-count complaint
against defendant, the city of Decatur (City), his former employer, and Tim Gleason, the City’s
manager. In April 2016, plaintiff filed an amended complaint against only the City. In response,
the City filed a combined motion to dismiss the amended complaint under section 2-619.1 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)). After a June 2016 hearing,
the Macon County circuit court granted the City’s motion and dismissed with prejudice
plaintiff’s amended complaint under section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)).
¶2 Plaintiff appeals, contending the circuit court erred by dismissing his claim
(1) brought under section 15(b) of the Whistleblower Act (740 ILCS 174/15(b) (West 2014))
because that provision (a) only requires disclosure of suspected law violations to a government
or law enforcement agency and (b) does not require the employee to also refuse to participate in
the activity and (2) of common-law retaliatory discharge based on the public policy protecting
(a) whistleblowing and (b) the freedom of speech under the first amendment (U.S. Const.,
amend. I). We affirm.
¶3 I. BACKGROUND
¶4 In the February 2016 complaint, plaintiff asserted a claim of common-law
retaliatory discharge and a violation of the Whistleblower Act (740 ILCS 174/1 et seq. (West
2014)) against the City and Gleason. The City and Gleason filed a section 2-619.1 motion to
dismiss. After an April 2016 hearing, the circuit court granted the motion to dismiss under
section 2-615 and allowed plaintiff to replead.
¶5 Plaintiff’s April 2016 amended complaint again asserted retaliatory discharge and
Whistleblower Act claims but only against the City. The amended complaint alleged that, in
January 2015, Ryan McCrady, then the City’s manager, appointed plaintiff as the City’s police
chief. As the police chief, plaintiff reported directly to the city manager. In March 2015, Gleason
became the City’s manager. In May 2015, Gleason told plaintiff to provide a police car and
uniformed officer to drive him to the St. Louis airport to catch a plane for a vacation after the
City’s State of the City address. Plaintiff reported to Gleason his personal use of public resources
was improper. Gleason then ordered plaintiff to have the car waiting at the City’s civic center to
transport him to St. Louis. Plaintiff discussed the situation with the deputy chief of police, Jim
Getz, who agreed Gleason’s personal use of the officer and police car was improper but
volunteered to drive Gleason. While on duty, Getz drove Gleason to the St. Louis airport in his
police vehicle. Plaintiff “involuntarily allowed,” but did not order, Gleason’s personal use of
police resources. After Gleason returned from vacation, plaintiff again told Gleason his use of a
police car and driver for his personal use was improper. While Gleason stated he understood
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plaintiff’s objection to his use of the officer and car, their relationship was difficult after the
conversation. Plaintiff alleged Gleason’s actions violated (1) the official misconduct statute (720
ILCS 5/33-3 (West 2014)); (2) the City’s police department’s general order No. 11-03, which
prohibits the use of departmental vehicles outside the City’s limits for personal business;
(3) chapter eight of the City’s code, which prohibits a City officer or employee from the
solicitation or acceptance of gifts prohibited by the State Officials and Employees Ethics Act
(Ethics Act) (5 ILCS 430/1-1 et seq. (West 2014)); (4) the Ethics Act; and (5) article VIII,
section 1(a), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VIII, § 1(a)), which
provides “[p]ublic funds, property or credit shall be used only for public purposes.” Plaintiff
contends Gleason knew or should have known his personal use of the police car and officer was
improper because he was then a member of the Illinois Law Enforcement Training and Standards
Board and a former police lieutenant.
¶6 The complaint further alleged that, in January 2016, Gleason asked plaintiff to
make a public statement supporting Gleason’s request for a new local motor fuel tax at the City
council meeting. Plaintiff refused to make the requested public statement. Gleason responded
with hostility and told plaintiff to leave his office. The complaint alleged matters of tax policy
were outside the scope of plaintiff’s job duties as police chief.
¶7 On February 2, 2016, Gleason and the City department heads, including plaintiff,
met at the City’s civic center. During the meeting, Gleason requested input from those present.
When it came to his turn, plaintiff responded the City had other potential revenue sources and
stated his opposition to a further tax increase. Gleason became furious and ordered plaintiff to
leave the meeting. Later that day and the next day, Gleason asked plaintiff the following
questions: “ ‘Do you know who you work for?’ and ‘Do you want to keep your job as Police
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Chief?’ ” On February 4, 2016, Gleason asked plaintiff to resign. When plaintiff refused to
resign, he received a written notice of termination.
¶8 As to his retaliatory discharge claim, plaintiff alleges his termination was in
retaliation for his (1) “disclosure regarding Gleason’s personal use of a Decatur police car and
uniformed officer”; (2) “refusal to make a public statement at the City Council meeting
supporting Gleason’s proposed motor fuel tax”; and (3) “February 2, 2016 statement in
opposition to increasing taxes when he believed other sources of income were available to the
City.” He alleges his retaliatory termination violated on or more of the following clear mandates
of public policy:
“(1) enforcing the State’s criminal code and ethics regulations, (2) the policy of
furthering investigation of a crime within a police department, (3) preventing the
private use of public resources, in violation of Article VIII(1)(a) of the Illinois
Constitution, (4) protecting the First Amendment rights of public employees to
speak on matters of public concern outside the scope of their job duties, and
(5) protecting the First Amendment right of a [sic] public employees to not be
coerced by their government employers into engaging in political speech.”
¶9 Regarding his claim under the Whistleblower Act, plaintiff asserted he disclosed
certain information to Gleason, who was his sole supervisor and authorized by the City to receive
such information on behalf of the City. He had a reasonable belief the information disclosed to
Gleason concerned violations of the Illinois Constitution, as well as state laws, rules, and ethics
regulations. Moreover, plaintiff contends Gleason, acting for and on behalf of the City in his
capacity as city manager, retaliated against him by terminating his employment due to plaintiff’s
disclosure of information to Gleason, which plaintiff reasonably believed disclosed a violation of
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state law.
¶ 10 In May 2016, the City filed a combined motion to dismiss the amended complaint
under section 2-619.1 of the Code. The section 2-615 part of the motion asserted plaintiff’s
retaliatory discharge claim should be dismissed for failure to state a clear mandate of public
policy undermined by the discharge of an at-will employee. The City also argued both claims
should be dismissed because they failed to allege whistleblowing activity. Moreover, the section
2-615 motion to dismiss contended the allegations regarding the first amendment failed to state a
cause of action and the element of causation was defeated. The section 2-619 portion of the
motion asserted (1) the allegations in the amended complaint and Gleason’s affidavit establish a
cause, other than a retaliatory one, for plaintiff’s termination; and (2) causation fails because
plaintiff’s termination was remote from the date of the alleged whistleblowing.
¶ 11 On May 26, 2016, the circuit court held a hearing on the City’s motion to dismiss.
After hearing the parties’ arguments, the court took the matter under advisement. On June 7,
2016, the court entered a lengthy docket entry, dismissing with prejudice plaintiff’s amended
complaint under section 2-615 of the Code. On June 30, 2016, plaintiff filed a timely notice of
appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015).
Accordingly, we have jurisdiction of this appeal under Illinois Supreme Court Rule 301 (eff.
Feb. 1, 1994).
¶ 12 II. ANALYSIS
¶ 13 In this case, the circuit court dismissed with prejudice plaintiff’s complaint under
section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)). A section 2-615 motion to dismiss
challenges the complaint’s legal sufficiency based on defects apparent on its face. Blumenthal v.
Brewer, 2016 IL 118781, ¶ 19. In ruling on such a motion, “a court must accept as true all well
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pleaded facts and all reasonable inferences that may be drawn from those facts.” Blumenthal,
2016 IL 118781, ¶ 19. The court must determine “whether the allegations of the complaint, when
construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action
upon which relief may be granted.” Blumenthal, 2016 IL 118781, ¶ 19. This court reviews de
novo the grant of a section 2-615 motion to dismiss. Blumenthal, 2016 IL 118781, ¶ 19. We also
review de novo an issue of statutory construction. Murphy-Hylton v. Lieberman Management
Services, Inc., 2016 IL 120394, ¶ 17.
¶ 14 A. Whistleblower Act Claim
¶ 15 Section 15(b) of the Whistleblower Act (740 ILCS 174/15(b) (West 2014))
provides the following: “An employer may not retaliate against an employee for disclosing
information to a government or law enforcement agency, where the employee has reasonable
cause to believe that the information discloses a violation of a State or federal law, rule, or
regulation.” Thus, to establish a cause of action under section 15(b), the employee must show
(1) an adverse employment action by his or her employer, (2) which was in retaliation (3) for the
employee’s disclosure to a government or law enforcement agency (4) of a suspected violation of
an Illinois or federal law, rule, or regulation. See Taylor v. Board of Education of the City of
Chicago, 2014 IL App (1st) 123744, ¶ 52, 10 N.E.3d 383. At issue in this case is whether
plaintiff made a disclosure to a government or law enforcement agency.
¶ 16 In Brame v. City of North Chicago, 2011 IL App (2d) 100760, ¶ 12, 955 N.E.2d
1269, the Second District construed section 15(b) of the Whistleblower Act to only require the
employee to report the suspected violation to a government or law enforcement agency, and “no
exceptions apply if a government or law-enforcement agency is also the employer.” The Brame
court explained that, if the legislature had intended the Whistleblower Act not to apply to reports
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made to an employee’s own government or law enforcement agency employer, it would have
expressly stated such a limitation. Brame, 2011 IL App (2d) 100760, ¶ 12, 955 N.E.2d 1269. It
further noted, “[i]t is difficult to perceive that the legislature did not intend the [Whistleblower]
Act to protect a police officer from retaliation for reporting the illegal conduct of fellow officers
to his superiors in the department.” Brame, 2011 IL App (2d) 100760, ¶ 12, 955 N.E.2d 1269.
Additionally, the Brame court distinguished the federal cases, which held an employee’s
reporting within the employee’s own company of an alleged criminal violation did not fall under
section 15(b) of the Whistleblower Act, because the employers in those cases were not
government or law enforcement agencies. Brame, 2011 IL App (2d) 100760, ¶ 12, 955 N.E.2d
1269. The Brame case involved a lieutenant in the police department, who reported alleged
criminal activity by the police chief to the mayor, who was the chief executive officer of the city
and had general supervision and control of the police department. Brame, 2011 IL App (2d)
100760, ¶¶ 1, 7, 955 N.E.2d 1269.
¶ 17 Even assuming, arguendo, Brame’s holding that the disclosure to an employer in
a government or law enforcement agency falls under section 15(b) of the Whistleblower Act is
correct, the facts alleged in plaintiff’s amended complaint are different from those in Brame.
Here, plaintiff did not report Gleason’s alleged violation of Illinois law to Gleason’s superior.
According to plaintiff’s amended complaint, when Gleason requested the use of a police car and
officer to drive him to the St. Louis airport, plaintiff “reported to Gleason that this personal use
of public resources would be improper.” After Gleason used the police car and officer, plaintiff
“again disclosed to Gleason that his use of a police car and driver for his personal purposes was
improper.” Plaintiff further alleges Gleason, as a member of the Illinois Law Enforcement
Training and Standards Board and a former police lieutenant, knew or should have known his
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personal use of police car and officer was improper. Thus, we address whether telling the alleged
government violator his acts are improper constitutes “disclosing information” under section
15(b) of the Whistleblower Act.
¶ 18 When presented with an issue of statutory construction, the reviewing court’s
primary objective is to ascertain and give effect to the legislature’s intent. Murphy-Hylton, 2016
IL 120394, ¶ 25. The statutory language, given its plain and ordinary meaning, best indicates the
legislature’s intent. Murphy-Hylton, 2016 IL 120394, ¶ 25. Moreover, we must evaluate the
statute as a whole, “construing words and phrases in context to other relevant statutory
provisions and not in isolation.” Murphy-Hylton, 2016 IL 120394, ¶ 25. In doing so, we should
not render any language superfluous. Murphy-Hylton, 2016 IL 120394, ¶ 25. “Additionally, the
court may consider the reason for the law, the problems sought to be remedied, the purposes to
be achieved, and the consequences of construing the statute one way or another.” Murphy-
Hylton, 2016 IL 120394, ¶ 25.
¶ 19 The Merriam-Webster dictionary defines the verb “disclose” as “to expose to
view” or “to make known or public.” Merriam-Webster Online Dictionary, http://www.merriam
webster.com/dictionary/disclose (last visited Feb. 3, 2017). Thus, the employee must have
exposed to view or made known information. Informing the violator his or her actions are
improper does not expose to view or make known the alleged improper activity. That conclusion
is consistent with the First District’s explanation of the Whistleblower Act, which states:
“The [Whistleblower] Act protects employees who call attention in one of two
specific ways to illegal activities carried out by their employer. It protects
employees who either contact a government agency to report the activity or refuse
to participate in that activity. An employee who does not perform either of the
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specifically enumerated actions under the [Whistleblower] Act cannot qualify for
its protections.” (Emphases added.) Sardiga v. Northern Trust Co., 409 Ill. App.
3d 56, 62, 948 N.E.2d 652, 657 (2011).
Moreover, “the purpose of the Whistleblower Act is to protect statutorily defined employees who
report violations of state or federal laws, rules, or regulations ‘because the reported wrongful
conduct or unsafe condition affected the health, safety[,] or welfare of Illinois residents as a
whole.’ ” (Emphases added.) Larsen v. Provena Hospitals, 2015 IL App (4th) 140255, ¶ 47, 27
N.E.3d 1033 (quoting Sutherland v. Norfolk Southern Ry. Co., 356 Ill. App. 3d 620, 627, 826
N.E.2d 1021, 1027 (2005)). Simply having a conversation with the wrongdoer about the
impropriety of his or her actions is not exposing the alleged improper activity, making it known,
or reporting the wrongful conduct. The fact the violator is the employee’s boss does not alter the
analysis, as the information is still not disclosed. We hold section 15(b) of the Whistleblower Act
does not protect an employee who simply notes the impropriety of conduct with the alleged
wrongdoer, as that does not constitute the disclosure of information under the Whistleblower
Act.
¶ 20 Since plaintiff alleges the disclosure of information was made to Gleason, the
violator, we agree with the circuit court plaintiff failed to state a cause of action under the
Whistleblower Act. Given our conclusion, we do not address the parties’ other arguments related
to the Whistleblower Act.
¶ 21 B. Retaliatory Discharge
¶ 22 Plaintiff also challenges the circuit court’s dismissal of his common-law
retaliatory discharge claim. In Illinois, a longstanding rule exists that an at-will employee, such
as plaintiff, may be discharged by his employer at any time and for any reason. Michael v.
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Precision Alliance Group, LLC, 2014 IL 117376, ¶ 28, 21 N.E.3d 1183. In Kelsay v. Motorola,
Inc., 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357 (1978), our supreme court recognized the tort
of retaliatory discharge as a narrow exception to the aforementioned rule. “To sustain a cause of
action for retaliatory discharge, an employee must prove: (1) the employer discharged the
employee, (2) the discharge was in retaliation for the employee’s activities (causation), and
(3) the discharge violates a clear mandate of public policy.” Michael, 2014 IL 117376, ¶ 31, 21
N.E.3d 1183. On appeal, plaintiff asserts his discharge violated the public policy protecting
whistleblowing and freedom of speech. The City asserts plaintiff did not raise an issue on the
dismissal of retaliatory discharge claim arising from whistleblower activity. We disagree, as
plaintiff asserts in his brief that the circuit court ignored his whistleblowing allegations raised in
his retaliatory discharge claim.
¶ 23 While a precise definition of what constitutes a clearly mandated public policy
does not exist, “a review of Illinois case law reveals that retaliatory discharge actions have been
allowed in two settings: where an employee is discharged for filing, or in anticipation of filing, a
claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1992)); or where an
employee is discharged in retaliation for the reporting of illegal or improper conduct, otherwise
known as ‘whistleblowing.’ ” Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. In those
situations, “an employer could effectively frustrate a significant public policy by using its power
of dismissal in a coercive manner.” Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Thus, the
situations necessitate a cause of action for retaliatory discharge to vindicate the public policy
underlying the employee’s activity and deter the employer’s conduct that is inconsistent with that
policy. Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Additionally, our supreme court has
stated, “public policy concerns what is right and just and what affects the citizens of the State
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collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in
its judicial decisions.” Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d
876, 878 (1981).
¶ 24 1. Whistleblowing
¶ 25 The allegations in plaintiff’s amended complaint regarding whistleblowing are the
same ones he makes in his claim under the Whistleblower Act. As with his Whistleblower Act
claim, plaintiff does not allege facts showing he reported or disclosed information about
Gleason’s alleged violation of Illinois law. In other words, plaintiff did not blow the whistle on
Gleason. The alleged facts in plaintiff’s amended complaint simply show plaintiff twice told
Gleason his actions were improper. Thus, like with his claim under the Whistleblower Act,
plaintiff has failed to plead facts supporting an instance of whistleblowing and cannot plead a
violation of a clear mandate of public policy based on whistleblowing.
¶ 26 2. Freedom of Speech
¶ 27 Moreover, on appeal, plaintiff alleges the circuit court erred by dismissing his
retaliatory discharge claim based only on his statements in opposition to increasing taxes at a
February 2, 2016, staff meeting. As stated, our supreme court has only recognized retaliatory
discharge causes of action in the areas of Workers’ Compensation claims and whistleblowing.
See Michael, 2014 IL 117376, ¶ 30, 21 N.E.3d 1183. Plaintiff asserts Illinois law has also
recognized a retaliatory discharge claim when an employee is discharged in retaliation for first
amendment speech. However, the case cited by plaintiff recognized “a public policy favoring
thorough investigation of police and fire department affairs and citizen compliance with such
investigations.” Daniel v. Village of Hoffman Estates, 165 Ill. App. 3d 772, 775, 520 N.E.2d 754,
756 (1987). There, the employee claimed she was fired for complying with an order from the
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board of fire and police commissioners to produce any documents relevant to a dismissal
proceeding. Daniel, 165 Ill. App. 3d at 775, 520 N.E.2d at 756. The case only addressed the first
amendment right to free speech in the context of a federal claim and not the retaliatory discharge
claim.
¶ 28 The Illinois Supreme Court has addressed whether the first amendment
establishes a clearly mandated public policy in the context of a private employer. In Barr v.
Kelso-Burnett Co., 106 Ill. 2d 520, 523, 478 N.E.2d 1354, 1355 (1985), the employees sought to
raise a claim of retaliatory discharge against their private employer based on, inter alia, their first
amendment right to freedom of speech. Our supreme court concluded the employees’ discharge
did not violate any clear mandate of public policy. Barr, 106 Ill. 2d at 526, 478 N.E.2d at 1356.
In reaching that conclusion, the court found “the constitutional guarantee of free speech is only a
guarantee against abridgement by the government, Federal or State; the Constitution does not
provide protection or redress against private individuals or corporations which seek to abridge
the free expression of others.” Barr, 106 Ill. 2d at 526, 478 N.E.2d at 1356. It also noted neither
the Illinois Constitution nor the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, ¶ 1-10 et
seq.) contain provisions mandating “the inclusion of the right of free speech into those rights
which are applicable to the employer-employee relationship.” Barr, 106 Ill. 2d at 528, 478
N.E.2d at 1357.
¶ 29 In this case, plaintiff’s employer is a municipality, not a private employer. No
Illinois case law has addressed whether the first amendment creates a public policy protecting
speech made by public employees. The United States Supreme Court has recognized “the First
Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). In
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Garcetti, 547 U.S. at 418, the Supreme Court established a two-step inquiry into whether a
public employee’s speech is entitled to first amendment protection. The two-step inquiry was
reaffirmed by the Supreme Court in its most recent case on the issue, Lane v. Franks, 573 U.S.
___, 134 S. Ct. 2369 (2014). The two-step inquiry is as follows:
“ ‘The first requires determining whether the employee spoke as a citizen on a
matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the speech.
If the answer is yes, then the possibility of a First Amendment claim arises. The
question becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the
general public.’ ” Lane, 573 U.S. at ___, 134 S. Ct. at 2378 (quoting Garcetti, 547
U.S. at 418).
¶ 30 In his brief, plaintiff fails to set forth the two-step inquiry and explain how the
facts alleged in his amended complaint satisfy that inquiry. Instead, he focuses on demonstrating
his speech was on a matter of public concern. However, the main focus of the first step is
distinguishing between employee speech and citizen speech. See Lane, 573 U.S. at ___, 134 S.
Ct. at 2378. A matter of public concern is only part of the first inquiry and does not alone
establish protected speech. Plaintiff fails to adequately argue and plead facts showing he was
speaking as a citizen at Gleason’s department head meeting. Accordingly, we find plaintiff has
failed to show the facts in his amended complaint establish a clearly mandated public policy
protecting his speech at the February 2016 meeting. Thus, the circuit court’s dismissal with
prejudice of his retaliatory discharge claim based on the first amendment was also proper.
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¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the Macon County circuit court’s judgment.
¶ 33 Affirmed.
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