The Northern District of Illinois recently dismissed an Indiana-based employee’s claims for retaliatory discharge in violation of common law pursuant to Illinois public policy, focusing on the nature of the connection (or lack thereof) to Illinois and noting that the plaintiff possessed adequate statutory remedies under federal whistleblower laws.  O’Risky v. Mead Johnson Nutrition Co., No. 17-cv-1046 (N.D. Ill. Aug. 8, 2017).

Background.  Plaintiff worked for Mead Johnson Nutrition since 1990, most recently in the position of Director of Global Product Compliance.  In that role, she worked primarily at the Company’s Evansville, Indiana facility, and spent 10-15% of her time at the Company’s headquarters in Glenview, Illinois.  She alleged that she raised concerns about food safety issues related to the Company’s manufacture of infant formula through an anonymous internal complaint.  An internal investigation ensued.  After the investigation concluded, Plaintiff’s employment was terminated, allegedly in connection with a reduction-in-force.  Claiming the termination constituted retaliation for her complaint, she filed suit in the Northern District of Illinois, asserting claims based on: (1) Illinois common law (i.e., retaliatory discharge in violation of public policy), (2) the Dodd-Frank Act; (3) the Sarbanes-Oxley Act; and (4) the Food Safety Modernization Act.  The Company moved to dismiss the common law retaliatory discharge and Dodd-Frank claims pursuant to Rule 12(b)(6).

Ruling.  The court granted the Company’s motion to dismiss the common law retaliatory discharge claim and denied the motion as to the Dodd-Frank claim, without prejudice to later refile that motion after the U.S. Supreme Court’s decision in Somers v. Digital Realty Trust, Inc. (discussed here) is issued.  With respect to the retaliatory discharge claim, the court rejected Plaintiff’s request to apply Illinois law, as it concluded that Indiana (and not Illinois) had the most significant relationship to the Plaintiff and her alleged injuries.  And because Indiana law does not recognize a common law claim for whistleblower retaliation (unlike Illinois law), the court dismissed the claim.  Significantly (albeit in a footnote), the court went on to note that the retaliatory discharge claim would have failed even under Illinois law, because she had adequate statutory remedies—i.e., the federal whistleblower statutes.

Implications.  This decision underscores the basic rule that a common law retaliatory discharge claim based on whistleblowing activity is not actionable under Illinois law given the existence of available remedies under federal whistleblower statutes.  The is especially valuable to employers given the risk of punitive damages attendant to common law retaliatory discharge claims.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.