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Sutherland v. Norfolk Southern Railway Co.3/28/2005
discharge in only two situations: (1) where the discharge stems from asserting a worker's compensation claim (Kelsay v. Motorola, Inc, 74 Ill. 2d 172, 384 N.E.2d 353 (1978)) and (2) where the discharge is for certain activities referred to as 'whistle-blowing' (Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981) (Palmateer)). Jacobson v. Knepper & Moga, P.C., 185 Ill. 2d 372, 706 N.E.2d 491 (1998). Other than these two circumstances, however, Illinois courts consistently have refused to expand the tort to encompass a private and individual grievance. See Price v. Carmack Datsun, Inc, 109 Ill. 2d 65, 485 N.E.2d 359 (1985); McGrath v. CCC Information Services, Inc., 314 Ill. App. 3d 431, 731 N.E.2d 384 (2000) (McGrath); Eisenbach v. Esformes, 221 Ill. App. 3d 440, 582 N.E.2d 196 (1991); Abrams v. Echlin Corp., 174 Ill. App. 3d 434, 528 N.E.2d 429 (Abrams)." Geary v. Telular Corp. 341 Ill. App. 3d 694, 701, 793 N.E.2d 128, 134 (2003).
Sutherland contends that he is a whistleblower within the meaning of Palmateer because he "alleged that [Norfolk Southern] fired him in retaliation for filing a claim for injuries he sustained at work, for reporting a defective locomotive and for reporting his injury, and that the discharge violated a clear mandate of public policy." We note that in count III of his complaint, Sutherland alleged that he was discharged for "falsif[ying] a personal injury and * ME-60 forms in accordance with his * injury"; to "prevent from presenting damages of wage loss * in his FELA action * and FBIA action"; "in order [for Norfolk Southern] to avoid reporting on the job injury * to the Federal Railroad Administration" and the Secretary of Transportation; and "in order to avoid reporting [Norfolk Southern's] violation of the FBIA to the Secretary of Transportation." Norfolk Southern argues that to be considered a whistleblower, it is essential that during the course of his employment, the employee had actively complained of some aspect of his employer's or co-worker's conduct, with such complaints having been made either to an outside law enforcement or regulatory authority or to internal company management. We agree and further note that the reporting of certain dangerous or unsafe conditions is also within the scope of whistleblower protections. See Stebbings v. University of Chicago , 312 Ill. App. 3d 360, 726 N.E.2d 1136 (2000). However, as Norfolk Southern points out, Sutherland's complaint contains no allegations that he was dismissed for blowing the whistle on Norfolk Southern's misconduct. As noted, Sutherland alleged that he was fired to prevent him from presenting damages in his FELA/FBIA action and so that Norfolk Southern would avoid compliance with its reporting requirements. Nowhere in his complaint did Sutherland allege that he was discharged in retaliation for reporting any alleged wrongdoing or a dangerous or unsafe condition. Granted, Norfolk Southern does not dispute that plaintiff reported to his supervisor his injury and what caused it. However, this is not whisleblowing under Illinois law.
A whistleblower must allege that his or her discharge violated a clear mandate of public policy because the reported wrongful conduct or unsafe condition affected the health, safety or welfare of Illinois residents as a whole. See Palmateer, 85 Ill. 2d at 130, 421 N.E.2d at 878 (what is complained of must "affect the citizens of the State collectively"); Stebbings, 312 Ill. App. 3d at 365, 726 N.E.2d at 1140. Consequently, courts repeatedly have held that a railroad employee cannot qualify as a whistleblower under Illinois law simply because he or she reported his or her own injury and the condition that caused it. See Emery v. Northeast Ill
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