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No. 2--01--0729

JUSTICE BYRNE delivered the opinion of the court:

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

Plaintiff's first amended complaint, which is at issue here,alleges the following. Defendant employed plaintiff as a warehousesupervisor. Plaintiff had worked for defendant for 17 yearswithout receiving a reprimand of any sort. His immediatesupervisor was the warehouse manager, John Maloney.

In 1999, Maloney was charged with various sexual offensesbased 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 andreported what Maloney told him. Plaintiff later gave a writtenstatement detailing Maloney's admissions. This statement, alongwith a supplemental witness list that included plaintiff's name,was tendered to Maloney's attorney in the criminal case. Hisattorney, in turn, gave the documents to Maloney.

Soon after Maloney received plaintiff's statement, Maloneytold plaintiff he did not want him working for him any more. OnApril 19, 2000, Maloney pleaded guilty to two criminal charges andwas sentenced to 48 months' probation, including 36 months'periodic imprisonment.

According to plaintiff's complaint, Maloney began anorchestrated effort to fabricate false allegations of misconductagainst plaintiff in order to secure his discharge. Maloney gotother employees to sign off on false write-ups and grievancecomplaints and threatened other employees to sign grievancescontaining false allegations of misconduct by plaintiff. On May 4,2000, defendant gave plaintiff a written warning that his jobperformance was substandard in every area and that he would beterminated in 30 days if he did not improve. On June 9, 2000,Maloney, "acting in his official capacity for Maxell," dischargedplaintiff. The complaint alleged that plaintiff's discharge wasmotivated by his cooperation with the criminal investigationagainst Maloney and as such violated Illinois's public policyfavoring the investigation and prosecution of crime.

The trial court granted defendant's motion to dismiss theamended complaint. The court stated that the complaint did notstate a cause of action for retaliatory discharge because italleged that plaintiff was discharged for reporting nonwork-relatedconduct and because there was no "nexus" between the protectedactivity and the discharge. After the court denied his motion toreconsider, plaintiff filed a timely notice of appeal.

Plaintiff contends that his complaint states a cause of actionfor retaliatory discharge. The complaint alleges that plaintiffwas fired in retaliation for engaging in a protected activity:assisting in the prosecution of crime. According to plaintiff, thepublic policy favoring the investigation and prosecution of crimeis the same regardless of whether the crime occurs in theworkplace. Thus, plaintiff contends that the trial court erred indistinguishing 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 repeatedlycautioned against expanding the tort. Further, no reported casehas found a cause of action for retaliatory discharge based on areport of nonwork-related criminal conduct.

The trial court dismissed plaintiff's complaint pursuant tosection 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 musttake as true all well-pleaded facts and draw all reasonableinferences in the plaintiff's favor. Ziemba v. Mierzwa, 142 Ill.2d 42, 46-47 (1991). Dismissal is appropriate only if it is clearthat the plaintiff can prove no set of facts that would entitle himor her to recover. Illinois Graphics Co. v. Nickum, 159 Ill. 2d469, 483 (1994). We review a section 2--615 dismissal de novo. Stebbings v. University of Chicago, 312 Ill. App. 3d 360, 364(2000).

The general rule in Illinois remains that an employer may firean at-will employee for any reason or no reason. Stebbings, 312Ill. App. 3d at 365; Howard v. Zack Co., 264 Ill. App. 3d 1012,1021 (1994). In Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978),the supreme court carved out an exception to the rule by creatinga cause of action for an employee who was fired in retaliation forfiling a worker's compensation claim. In Palmateer v.International Harvester Co., 85 Ill. 2d 124 (1981), the courtexpanded the retaliatory discharge tort to cover "whistleblowers"who were discharged for cooperating in a criminal investigation. The elements of a retaliatory discharge cause of action are that aplaintiff (1) has been discharged; (2) in retaliation for his orher activities; and (3) the discharge violates a clear mandate ofpublic policy. Stebbings, 312 Ill. App. 3d at 365.

In Palmateer, the court found that Illinois's public policyclearly 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 theconcept of ordered liberty ***" than the enforcement of a state'scriminal code. Palmateer, 85 Ill. 2d at 132. The court furtheremphasized the importance of this policy, stating:

" 'Public policy favors the exposure of crime, and thecooperation of citizens possessing knowledge thereof isessential to effective implementation of that policy.' "Palmateer, 85 Ill. 2d at 132-33, quoting Joiner v. BentonCommunity Bank, 82 Ill. 2d 40, 44 (1980).

Significantly, Palmateer never identifies the specific crimethat the plaintiff reported and whether it was work related. Itappears that the complaint did not include this information, andthe court did not find the omission significant. The opinionstates only that the plaintiff was discharged for supplyinginformation to a law-enforcement agency "that an IH employee mightbe violating the Criminal Code." Palmateer, 85 Ill. 2d at 132.

The pronouncements in Palmateer about the importance ofenforcing the state's criminal laws apply with equal force whetheror not the alleged crime is connected with a plaintiff'semployment. Nothing in Palmateer indicates an intention torestrict the cause of action to employees who report crimesdirectly connected with their employment. In fact, the allegationsheld to state a cause of action in Palmateer are nearly identicalto those in this case except that here plaintiff names the specificcrime of which Maloney was suspected. There is no reason forreaching a different result in this case merely because plaintiffsupplied details that the supreme court deemed unnecessary.

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

Defendant also argues that all of the reported cases concerncrimes occurring within or connected to a plaintiff's workplace. As noted, Palmateer does not specifically state whether the crimewas connected with plaintiff's employment. With that importantexception, defendant's empirical analysis is correct. However, itis of limited value in deciding whether retaliatory dischargeapplies 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 causeof action based on the reporting of nonwork-related conduct. Asplaintiff points out, an employee is more likely to encountercriminal conduct while on the job than he is to learn about purelyprivate, nonwork-related conduct of a fellow employee, and thispresumably accounts for the fact that cases involving work-relatedconduct are more common.

Defendant also contends that plaintiff cannot state a cause ofaction because he did not "report" any criminal conduct. Rather,it appears that the investigation of Maloney was already underwayand plaintiff merely agreed to give a statement and providepotential testimony of unknown evidentiary value. This contention,too, is refuted by Palmateer. The court observed that publicpolicy favored the plaintiff's volunteering of information to alaw-enforcement agency. It also protected his "agreement to assistin the investigation and prosecution of the suspected crime." Palmateer, 85 Ill. 2d at 133. Similarly, in Bartley v. UniversityAsphalt Co., 129 Ill. App. 3d 231 (1984), rev'd in part on othergrounds, 111 Ill. 2d 318 (1986), which defendant cites in anotherportion of its brief, the plaintiff stated a cause of action eventhough he cooperated in a Federal Bureau of Investigation (FBI)investigation that presumably was already underway. Bartley, 129Ill. App. 3d at 233.

Implicit in this argument seems to be the idea thatplaintiff's motives may not have been entirely pure. Perhapsplaintiff saw an opportunity for career advancement when he triedto help secure his supervisor's conviction of a serious crime. However, we believe that the existence of a mixed motive isirrelevant under Palmateer.

In summary, Palmateer does not require that the conductreported be work related. The complaint should not have beendismissed on this basis.

The trial court also stated that the complaint did not show a"nexus," or causal link, between plaintiff's statement to theprosecutor and his termination. Defendant advances five reasonswhy the complaint does not allege such a connection. We considerthese contentions in turn.

Defendant first contends that the 10-month interval from thetime plaintiff gave his statement until he was fired is too long asa matter of law to show proximate cause. Ordinarily, proximatecause is a question of fact for the jury. Diehl v. PoloCooperative Ass'n, 328 Ill. App. 3d 576, 582 (2002). Defendantcites no authority for the premise that causation automaticallybecomes too attenuated after the passage of a certain amount oftime.

Here, the complaint alleges that plaintiff worked fordefendant for 17 years with an unblemished record. However, withintwo weeks of Maloney's guilty plea, he began receiving negativeevaluations. According to plaintiff, Maloney began a campaign offalse reports against plaintiff in order to justify his firing,which took place about one month later. Taking these facts astrue, plaintiff has clearly established a causal connection betweenhis protected activity and his discharge.

In reaching this conclusion, we disagree with defendant'spremise that the time between when plaintiff first reportedMaloney's statements to prosecutors and his discharge--approximately 10 months--is of overriding significance in assessingcausation. Again we note plaintiff's allegation that Maloney begana campaign of harassment within two weeks after the guilty plea. Clearly, Maloney had good reason to wait until the criminal chargeswere resolved before taking action against plaintiff. Maloney mayhave believed he could persuade plaintiff not to testify but wouldhave lost this leverage had he fired him. Moreover, it would nothave helped Maloney's cause for the jury or the sentencing judge tolearn that he had fired one of the witnesses against him. Suchconduct itself might have been criminal. See 720 ILCS 5/32--4a(a)(West 2000). Plaintiff alleges that Maloney began laying thegroundwork to have plaintiff discharged almost immediately afterhis guilty plea resolved the charges. This is an appropriate datefrom which to determine whether plaintiff's report of criminalactivity and his discharge are causally related.

None of the cases defendant cites requires a different result. Defendant cites several federal cases for the proposition that,when "a significant period of time has passed between theemployee's activities and the discharge, courts routinely hold asa matter of law that there is no causal link and the retaliationclaim is dismissed." However, all of these cases were decided onmotions for summary judgment, not motions to dismiss. Therefore,the factual record was more developed than in this case.

In most cases, the employers had proffered legitimate reasonsfor the firings or layoffs. For example, in Lamas v. FreemanDecorating Co., 81 F. Supp. 2d 887 (N.D. Ill. 1999), the plaintifffiled a complaint with the Equal Opportunity Employment Commissionin July 1993. On June 23, 1994, he was fired, ostensibly forinsubordination. The court granted summary judgment to thedefendant on the plaintiff's complaint for retaliatory discharge. The court noted that, despite the lapse of time, the plaintiffcould have made out a prima facie case of retaliatory discharge. However, he failed to show any additional facts that cast suspicionon the employer's stated reason for the firing. Given the one-yearinterval between the filing of the complaint and his discharge, thecomplaint standing alone was insufficient to create the inferenceof a retaliatory motive. Lamas, 81 F. Supp. 2d at 889.

Cases such as Lamas clearly refute the contention that thepassage of time destroys causation as a matter of law. Lamasmerely held that the plaintiff did not provide sufficient facts todefeat summary judgment in the face of the employer's legitimatereason for its action. Here, as detailed above, plaintiff pleadsa much stronger causal link than did Lamas. Moreover, at thisstage of the proceedings, defendant has not even articulated alegitimate reason for firing plaintiff. In Bartley, the appellatecourt reinstated the complaint even though it alleged that theplaintiff was fired two years after he participated in the FBIinvestigation. Bartley, 129 Ill. App. 3d at 233. Thus, we rejectdefendant's contention that the complaint fails to establishcausation.

Defendant next contends that the complaint does not allegethat Maloney knew plaintiff was cooperating with the prosecutors. Even a casual review of the complaint refutes this contention. Plaintiff alleges that a prosecutor gave Maloney's lawyer a copy ofplaintiff's statement and an updated witness list includingplaintiff's name. Within a month of his guilty plea, Maloney begana campaign of harassment against plaintiff resulting in his firing. Clearly, a fact finder could infer from these facts that Maloneyknew that plaintiff had offered to testify against him.

Defendant acknowledges the allegation that Maloney receivedthe witness statement from his attorney, but contends that "thereis no factual basis to support" this allegation. We are aware ofno requirement that a plaintiff specifically identify the source ofeach allegation in a complaint. In ruling on a section 2--615motion, the court must accept as true all well-pleaded facts anddraw all reasonable inferences from those facts. Kolegas v. HeftelBroadcasting Corp., 154 Ill. 2d 1, 8-9 (1992). The court mustinterpret the allegations in the light most favorable to theplaintiff. Kolegas, 154 Ill. 2d at 9. A plaintiff need not setforth evidence, which may well be derived from later discovery. Wolinsky v. Kadison, 114 Ill. App. 3d 527, 536 (1983). Applyingthese principles, plaintiff's allegations are more than sufficientto allege that Maloney knew that plaintiff intended to testifyagainst him. Moreover, because plaintiff alleges that Maloney was"acting in his official capacity for Maxell," this knowledge can beimputed to defendant as well. See Ratliff v. Safeway InsuranceCo., 257 Ill. App. 3d 281 (1993).

Defendant next contends that plaintiff cannot establish acausal link based on Maloney's sentencing date. We have alreadyrejected this contention in our discussion of the general causationissue.

Defendant argues that plaintiff cannot predicate a cause ofaction on allegedly retaliatory conduct short of discharge. Defendant refers to plaintiff's allegations that Maloney falselyaccused plaintiff of misconduct and encouraged others to do so. Weagree that Illinois does not recognize a cause of action forretaliatory conduct short of discharge. See Zimmerman v. Buchheitof Sparta, Inc., 164 Ill. 2d 29, 38-39 (1994). However, plaintiffdoes not attempt to state a cause of action based on Maloney'sactions before firing him. Those allegations are intended todemonstrate Maloney's retaliatory motive and to show the course ofconduct that led to plaintiff's termination. Plaintiff does notsuggest that this conduct is independently actionable.

Defendant's final contention is that the complaint isinsufficient because it fails to ascribe a retaliatory motive todefendant (as opposed to Maloney). This argument, too, is based ona misreading of the cases.

Maxell, a corporation, cannot have a motive to do anything. Corporations can only act through their agents. Small v. Sussman,306 Ill. App. 3d 639, 647 (1999).

The cases defendant cites do not help it and actually tend tosupport plaintiff's position. In Buckner v. Atlantic PlantMaintenance, Inc., 182 Ill. 2d 12 (1998), the supreme court heldthat the plaintiff could not maintain a cause of action forretaliatory discharge against his individual supervisor. The courtheld that, because only "the employer" ultimately had the power todischarge the plaintiff, the policy considerations that led to thecreation of the retaliatory discharge cause of action supportedholding the employer liable. Buckner, 182 Ill. 2d at 20-21. Thecourt stated, "Obviously, an agent or employee of the employer maycarry out that function on the employer's behalf, but it is stillthe authority of the employer which is being exercised." (Emphasisin original.) Buckner, 182 Ill. 2d at 21.

Generally, a principal is liable for the acts of its agentcommitted within the scope of his authority. Brubakken v.Morrison, 240 Ill. App. 3d 680, 686 (1992). Nothing in Bucknersuggests that this principle does not apply in retaliatorydischarge cases. Although for policy reasons the Buckner courtdeclined to extend the cause of action to the agent, the opinionclearly implies that the principal would be liable.

Here, plaintiff alleges, although inartfully, that Maloney wasacting as Maxell's agent when he fired plaintiff and,inferentially, that defendant ratified the decision. Defendant hasnot convinced us that anything more was required.

We are aware of no requirement that for a plaintiff to statea cause of action for retaliatory discharge, he must allege thathis firing was in the corporation's best interest, as opposed tothat of the individual manager who carried it out. In Belline v.K-Mart Corp., 940 F.2d 184 (7th Cir. 1991), another case defendantcites, the plaintiff reported to his superiors his suspicions thata store manager, Dobberke, was allowing someone to take merchandisefrom the store without paying for it. The manager was transferredto another store but his successor fired plaintiff, stating, " 'Yougot Dobberke, I got you.' " Belline, 940 F.2d at 186.

It is apparent that it would have been in the corporation'sbest interest to retain the employee who was trying to prevent thetheft of its property and that the firing was carried out by thenew manager for reasons of his own. Nevertheless, the court upheldthe cause of action against the corporation. Belline, 940 F.2d at187-89.

In Thomas v. Zamberletti, 134 Ill. App. 3d 387 (1985), thecomplaint was defective because it failed to ascribe a retaliatorymotive to either the agent or the principal, thus failing to pleadan essential element of the cause of action. Thomas, 134 Ill. App.3d at 390. The remaining cases defendant cites did not involveretaliatory discharge actions and thus are unhelpful.

For the foregoing reasons, the judgment of the circuit courtof Lake County is reversed, and the cause is remanded for furtherproceedings.

Reversed and remanded.

O'MALLEY and GROMETER, JJ., concur.