On June 29, 2020, the Illinois Appellate Court, First District, reversed an order of summary judgment in favor of the defendant-employer in a retaliation lawsuit in which the former employee-plaintiff alleged claims for Illinois common law retaliatory discharge and violation of the Illinois Whistleblower Protection Act (the “Act”). Hubert v. The Board of Education of the City of Chicago, 2020 IL App (1st) 190790 (June 29, 2020). The plaintiff worked for the Chicago Public Schools managing bus transportation services. He became aware that private bus vendors that the school system had hired were overbilling the school system. After he worked to root out the fraud by voicing his concerns within the school system and by meeting with law enforcement, his employment with the Chicago Public Schools was terminated. The plaintiff contends that he was unlawfully terminated in retaliation for working to expose fraud.

The defendant claims that the plaintiff’s work to expose fraud had nothing to do with his employment termination; and that he was terminated for insubordination and divisive workplace conduct. The plaintiff brought his lawsuit for retaliatory discharge and violation of the Act. The defendant moved for summary judgment on the basis that it had valid, non-retaliatory, non-pretextual reasons for terminating the plaintiff’s employment. The trial court agreed and granted summary judgment in favor of the defendant on both claims. The Appellate Court concluded that the employer’s motivation for the plaintiff’s discharge is an unresolved genuine issue of material fact that precludes summary judgment.

To state a claim for common law retaliatory discharge under Illinois law, a plaintiff must plead and prove that: (1) the employer discharged the plaintiff; (2) in retaliation for the plaintiff’s protected activities; and (3) the discharge violates a clear mandate of public policy. The parties agreed that only the second element, causation, is at issue. The trial court held that, as a matter of law, the plaintiff could not prove that his termination was the result of retaliation for his reporting criminal activity. An employee’s cooperation with law enforcement to root out criminal activity constitutes protected activity and is in accord with the public policy of Illinois. It is unlawful for an employer to discharge an employee for cooperating with law enforcement. The defendant argued that the plaintiff cannot establish the causation element of his retaliatory discharge claim–that it acted with a retaliatory motive. When deciding the element of causation in a retaliatory discharge case, the ultimate issue is the employer’s motive in discharging the employee. The element of causation is not met if the employer has a valid, non-pretextual basis for discharging the employee.

The defendant contended that the undisputed evidence established that the plaintiff’s employment was terminated for legitimate, non-retaliatory reasons–insubordination and inappropriate behavior toward coworkers. The Appellate Court stated that this is “a classic case of both sides presenting evidence to support their positions and advancing a narrative that could be true.” In such a case, summary judgment is inappropriate. In a retaliatory discharge action, the issue of the employer’s true subjective intent in terminating an employee is a question of material fact, not suitable for resolution on summary judgment.

The plaintiff presented evidence that he continually pressed his concerns about fraud and corruption among school bus vendors contracting with the Chicago Public Schools. He later went outside of his supervisor’s department with his concerns; and he was terminated three weeks later. There is evidence that the supervisor was frustrated with the plaintiff disclosing information about vendor fraud as well as about the means by which he was trying to expose and eliminate the fraudulent activity. The plaintiff contended that his crusade to eliminate fraud from the schools led to the termination of his employment.

The positions of both parties constitute reasonable explanations for the plaintiff’s termination. In a retaliatory discharge case, causation may be established by circumstantial evidence. A jury could reasonably believe the narrative advanced by the plaintiff, which is supported by at least some evidentiary facts and inferences that could be drawn therefrom. The record also provides sufficient cause for the termination of the plaintiff’s employment, if a jury believes the defendant. However, it is for a jury to decide the real reason for the termination of the plaintiff’s employment. When an employer proffers a valid reason for an employee’s discharge, this does not automatically defeat a retaliatory discharge claim. The causation element required for proving a retaliatory discharge claim is negated by an employer’s proffered non-retaliatory, non-pretextual reason only if the trier of fact believes it. Thus, the Appellate Court concluded that a disputed question of material fact as to the defendant’s motive in terminating the plaintiff precluded summary judgment. It will be up to a jury to hear the conflicting evidence and decide which version of the events to believe.

The Appellate Court also stated that in a retaliatory discharge case, the burden of proof and persuasion shifts back and forth between the former employee and employer. The former employee must establish a prima facie case that her employment was terminated in retaliation for her protected activity and in violation of public policy. Then, if the employer articulates a legitimate, non-retaliatory reason for the employee’s discharge, the burden shifts back to the former employee, who has an opportunity to prove by a preponderance of the evidence that the employer’s proffered reasons were not true, but were a pretext for retaliation.

The summary judgment analysis for the statutory whistleblower claim under the Act is essentially the same. Under the Act, it is unlawful for an employer to 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. The defendant’s subjective motivation for the termination is also a genuine issue of material fact that precludes summary judgment on the claim for violation of the Act.