An Illinois Appellate Court recently found that the Illinois Whistleblower Protection Act (740 ILCS § 174/1, et seq.) (IWA) does not require that the employee’s disclosure is the first, or only, disclosure of a violation of a state or federal law, rule or regulation for that disclosure to form the basis of a cause of action. Willms v. OSF Healthcare Sys., No. 3-12-0450 (3d Dist. Feb. 26, 2013) (available here).
Plaintiff Gary Willms was an employee of Defendant OSF Healthcare System (OSF), and worked as the maintenance director at one of OSF’s healthcare facilities for nine years. In 2007, OSF hired an outside contractor to install a sidewalk. Initially, an inspector with the Illinois Department of Public Health (IDPH) found that the sidewalk complied with regulations governing “handicap access.” During a subsequent inspection in August 2008, however, the inspector determined that the sidewalk slope was approximately 1 inch too steep. The inspector informed Willms of the violation and provided until October 24, 2008 to fix it. Willms requested that the contractor measure the slope again, and the contractor confirmed that the slope was in fact too steep.
According to Willms, he then informed the administrator of the facility of the deadline to repair the sidewalk and gave her a copy of the inspector’s report. Willms also informed the administrator that he had the sidewalk measured and that the subsequent measurement confirmed the accuracy of the inspector’s determination. Though Willms had the authority to conduct routine maintenance repairs, he maintained that his duties did not include performing major repairs or construction.
The sidewalk was not repaired by the deadline set by the inspector, and when the inspector returned in February 2009, the repair had not been made. At that time, Willms told the inspector the slope had not yet been changed. The inspector then issued an order requiring construction on the sidewalk to begin immediately. The facility administrator told Willms that the IDPH had assessed a $33,600 fine to the facility and, according to Willms, the administrator added that the fine would cost either her or Willms a job. Willms’s employment was terminated on March 13, 2009.
Willms filed complaint in Illinois state court alleging he was discharged in violation of the IWA, asserting he was retaliated against for disclosing information to a government agency in violation of Section 15 of the IWA, which states:
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 the information discloses a violation of a State or federal law, rule, or regulation.
740 ILCS § 174/15(b) (emphasis added). In particular, Willms alleged that, when he informed the inspector that the sidewalk had not been repaired by the deadline he “disclosed” a violation of a state regulation under state whistleblower law. The trial court agreed with OSF’s position to the contrary and granted its motion to dismiss.
Appellate Court’s Decision
On appeal, Willms argued that the IWA protected him because he reasonably believed there was a violation of a state regulation and he disclosed that information to a government inspector. OSF, on the other hand, maintained that Willms did not make a protected disclosure because the inspector discovered the violation and Willms did not affirmatively request an inspection. Agreeing with Willms’ interpretation of the statute, the appellate court reversed the trial court’s determination.
The appellate court found that the “language of the Whistleblower Act seems plain and consistent” and focused on the “employee’s belief[,] . . . not on what the government agency already knows or could discover.” Slip op. at 5. It also underscored the absence of language in the statute indicating “that the employee’s disclosure has to be the first, or only, disclosure o the violation.” Id. And it distinguished the IWA from the Illinois Whistleblower and Reward Act, noting that, in the latter, the legislature imposed an “original source” requirement.
The court’s fairly expansive interpretation of the term “disclosure” in the IWA, and its focus on the plaintiff’s belief, could encourage additional whistleblower retaliation claims in Illinois. However, the absence of specific standards governing reliance on the plaintiff’s belief could lead courts to impose limits on the reach of this decision.