MEMORANDUM
TO:
Karin Mika
FROM:
1620
DATE:
September 16, 1992
RE:
Lavery v. Silicon Chip Industries
(Wrongful discharge of an at-will employee for reasons contrary to public
policy.)
ISSUE
WHETHER AN AT-WILL EMPLOYEE HAS A CAUSE OF ACTION
FOR WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC
POLICY WHEN SHE IS DISCHARGED FOR VOLUNTARILY
GIVING TESTIMONY ABOUT HER EMPLOYER’S HAZARDOUS
WASTE DISPOSAL PROCEDURES IN CONJUNCTION WITH A
CIVIL SUIT BEING BROUGHT AGAINST THE EMPLOYER.
STATEMENT OF FACTS
Janice Lavery, the plaintiff, was an at-will employee of Silicon Chip Industries
from May, 1974 until July 5, 1993. The company is located in Illinois and makes
computer chips that are sold to various companies throughout the United States. Because
the chips contain a slight amount of radioactive matter, Silicon must comply in its
disposal practices with federal regulations. Lavery was originally hired as a secretary but
took the requisite in-house courses to become a certified technical assembler. She
occupied that position until May, 1992 when she was promoted to supervisor of the
assembly department.
As a supervisor, Lavery claims she overheard discussions between employees that
proper procedures were not followed when disposing of radioactive waste. Lavery
claims that employees were rumored to have dumped radioactive circuitry into the
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regular trash, which ultimately wound up at the city dump. If true, these activities would
have been in violation of federal law.
Lavery ultimately reported her findings to Vice President Val Denison who
undertook an investigation into the matter. By a memo dated August 15, 1992, Denison
stated he had discovered no wrongdoing; however, Lavery on three more occasions
questioned the adequacy of Denison's findings. She was thereafter assigned to a different
area of production.
In March of 1993, it was reported in the National News that several Illinois
communities located near landfills were suffering from what appeared to be the ill effects
of radiation poisoning. In these landfills, including the one located near Silicon Chip,
were discovered improperly disposed radioactive items. Although an investigation into
the origin of these items has not yet begun, a rumor has been circulating that the improper
disposal of radioactive waste was not carelessness, but intended to minimize the cost of
proper hazardous waste disposal. After these allegations were printed, several people
filed suit against Silicon Chip.
On July 1, 1993, Janice Lavery was contacted by an attorney representing one of
the plaintiffs in this suit. She agreed to give deposition testimony concerning her
knowledge about Silicon's disposal practices. Four days afterward, Janice Lavery was
fired for insubordination and for unfairly linking Silicon to criminal conduct without
there having been an investigation. After her discharge, Lavery brought suit against
Silicon.
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DISCUSSION
In Illinois, the general rule of employment is that an at-will employee may be
discharged at any time, for any reason. Kelsay v. Motorola, 384 N.E.2d 353,356 (Ill.
1978). An exception to this general rule presents itself when the discharge contravenes a
clear public policy. Id. at 357. Public policy in Illinois is generally defined as an act
done in accordance with statutory rights or duties. Palmateer v. International Harvester
Co., 421 N.E.2d 876, 877 (Ill. 1981). Given that Silicon Chip has not been implicated in
any illegal disposal practices, Janice Lavery seemingly engaged in no act in furtherance
of a statutory right or duty. Therefore, it is unlikely that her cause of action will succeed.
There are a number of instances in which Illinois courts have used statutes to
ascertain clear public policy. In Kelsay, for example, there was a violation of public
policy when an at-will employee was discharged for asserting a statutory right to file an
injury claim under the Workmen's Compensation Act. 384 N.E.2d at 357. A statutory
duty to further assist officials in a criminal investigation constituted public policy in
Palmateer. 421 N.E.2d at 880. The court in Russ v. Pension Consultants Co., 538
N.E.2d 693, 695 (1989) derived public policy from one's obligation to adhere to the
statutory requirements under the Internal Revenue Code and its accompanying
regulations.
Most analogous to our case is Wheeler v. Caterpillar Tractor Co., 485 N.E.2d 372,
375 (Ill. 1983). In Wheeler, the court held that an employee had a cause of action for
retaliatory discharge when fired for refusing to operate an x-ray machine. Id. at 373. The
employee refused to operate the machine because he claimed that he did not have the
required safety training. Id. at 374. In finding for the plaintiff, the court reasoned that
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federal legislation protecting employees from discharge for filing complaints under
federal safety laws declared a clearly mandated public policy upon which the plaintiff
could base a cause of action. Id. at 376. The court declared that the employee could not
be fired for complying with federal safety laws. Id.
On the basis of the at-will cases decided in Illinois, Janice Lavery is unlikely to
succeed in this cause of action. "Clear public policy" in Illinois hinges on statutory
violations or duties. See, e.g., Kelsay, 384 N.E.2d at 357. In Wheeler, specifically, the
discharge undermined a statutory obligation to safely operate a machine pursuant to
federal safety regulations. 485 N.E.2d at 375 It should be argued that Lavery's situation,
unlike Wheeler's, did not involve a violation of a statute or a reporting of statutory
violations. Lavery's discharge was for voluntarily giving testimony about department
procedures in a civil suit, and not for any failure to properly dispose of hazardous waste.
Unlike in Wheeler, there was neither a statutory duty that required her to testify nor a
statute that protected her employment when giving testimony in a civil suit. See Id. at
376. Therefore, Silicon should argue they did not discharge her in violation of a clearly
mandated public policy.
Lavery may allege various arguments to support her position, and one in
particular is very strong. Lavery may argue that she is protected under Illinois law
because, she will assert, she was discharged for reporting violations of a statute similar to
that in Wheeler. In Wheeler, the Energy Reorganization Act (42 U.S.C. § 5851 (1982))
provided the plaintiff with protection from discharge for reporting violations of federally
mandated safety procedures. 485 NE.2d at 377. Lavery may claim that a similar act, the
Whistleblower Reward and Protection Act (Ill. Rev. Stat. ch.4, para.3 (1993)) provides
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her with the same protection. She may claim that her testifying in the civil suit was, in a
sense, reporting federal violations.
Based on the language of the statute, it does not appear that Lavery's argument
will succeed. The Whistleblower Reward and Protection Act states that no person shall
fire an employee by reason of the fact that such employee has filed, instituted, or caused
to be filed or instituted, any proceeding under this Act, or has testified or is about to
testify in any proceeding resulting from the administration or enforcement of the
provisions of this Act, or offers any evidence of any violation of this Act. Id. It may be
argued that Janice Lavery was not reporting federal violations in a proceeding resulting
from the "administration or enforcement" of the Act, but was providing information
about procedures of the department in a civil suit. Therefore, we should assert that her
discharge for giving this type of testimony was not protected under the Whistleblower
Reward and Protection Act.
CONCLUSION
It is unlikely that Lavery will succeed in her cause of action against Silicon Chip.
Illinois has recognized a public policy exception to the at-will employment doctrine when
the public policy is derived from statutory duties or violations. Although the
Whistleblower Reward and Protection Act is similar to the applicable statute in Wheeler,
the reporting of perceived federal violations in Lavery's case was in a proceeding that was
not covered by the Act. Since there was not a statute protecting Lavery's actions, it
should be argued her discharge was not in violation of public policy.
It is also important to note that Lavery was not fired for reporting perceived
violations to her superior. Her discharge actually came approximately six months after
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her initial reporting of the alleged violations. It may be argued that her testimony was not
intended to be "whistleblowing" to the appropriate government agency. Instead, we may
assert, that Lavery's testimony was based solely on rumors. We may make a strong
argument on behalf of Silicon legitimizing the discharge by pointing out that the
testimony had the potential of damaging the reputation of the company because there was
no link to any criminal investigation regarding illegal dumping.
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