Brown v. Biomat USA, Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LAVONCE BROWN,

Plaintiff,

Case No. 20-cv-05437

v.

Judge Mary M. Rowland

BIOMAT USA, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Lavonce Brown (“Brown”) alleges that his former employer Biomat USA,

Inc. (“Biomat”) violated the Illinois Whistleblower Act (“IWA”), 740 ILCS § 174/1, et

seq. (Count I), and retaliated against him by terminating his employment after he

reported Biomat’s noncompliance with COVID-19 regulations to the FDA (Count II).1

(Dkt. 16). For the reasons stated herein, Biomat’s motion to dismiss (Dkt. 17) is

denied.

I. Background

The following factual allegations are taken from the Amended Complaint,

(Dkt. 16) and are accepted as true for the purposes of this motion to dismiss. See W.

Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). Brown was hired

by Biomat, a plasma donation center, in 2015 and promoted from Donor Processor to

1 Jurisdiction is proper because the amount of controversy exceeds $75,000 and the parties are

completely diverse. 28 U.S.C. §1332. Brown is a citizen of Illinois and Biomat is a citizen of Delaware,

where it is incorporated, and of California, where its principal place of business is located. (Dkt. 1 at

3).

Lead Donor Center Technician and eventually to Operational Supervisor. (Dkt. 16 at

¶¶ 5–7). From 2015 until March of 2020 Brown received excellent performance

reviews. (Id. at ¶ 9).

In January of 2020, the United States Secretary of Health and Human Services

declared COVID-19 a public health emergency. (Id. at ¶ 12). On March 9, 2020,

Governor Pritzker issued a Disaster Proclamation, saying that the pandemic

qualified as a disaster under Section 7 of the Illinois Emergency Management Agency

Act (“EMAA”), 20 ILCS 3305/7.2 (Id. at ¶ 13; Ex. A). On March 20, 2020, Governor

Pritzker issued Executive Order 2020-10 pursuant to the EMAA,3 mandating social

distancing and other measures. (Id. at ¶ 15).

On March 30, 2020, Brown contacted the FDA and reported that Biomat was not

following the Executive Order’s social distancing and capacity-reduction protocols.

(Id. at ¶¶ 16–20). In early April of 2020, Brown notified Biomat that he had reported

these violations to the FDA. He reported that BIOMAT was “allowing too many

people in the building without social distancing and that it did not reduce the total

number of seats in the lobby.” Id. He further reported that Biomat did not limit the

2 Section 7 says that “[i]n the event of a disaster, as defined in Section 4, the Governor may by

proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may

exercise for a period not to exceed 30 days the following emergency powers: [. . .] “[t]o control ingress

and egress to and from a disaster area, the movement of persons within the area, and the occupancy

of premises therein.” 20 Ill. Comp. Stat. Ann. 3305/7(8).

3 Executive Order 2020-10 says that “[f]or purposes of this Executive Order, Social Distancing

Requirements includes maintaining at least six-foot social distancing from other individuals,” and that

“Essential Businesses and Operations and businesses engaged in Minimum Basic Operations must

take proactive measures to ensure compliance with Social Distancing Requirements.” (Dkt. 16, Ex. B).

number of donors in the building or manage the appointment system to comply with

social distancing requirements. Id.

Brown alleges that “various individuals” at Biomat became hostile towards him.

(Id. at ¶ 21). On April 23, 2020, Brown was suspended by Biomat for blocking off

appointments in its online appointment system, though Brown both denies that he

blocked off any appointments and asserts that he was not responsible for scheduling

appointments. (Id. at ¶¶ 22–24). On April 30, 2020, Brown’s employment was

terminated by Center Manager Sandra Smiley, who was aware of his FDA report.

(Id. at ¶¶ 24–25). Brown alleges he was suspended and later terminated because he

reported Biomat’s COVID-19 safety violations to the FDA. (Id. at ¶ 27).

II. Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the case.

See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a motion

to dismiss under Rule 12(b)(6), the complaint must provide enough factual

information to state a claim to relief that is plausible on its face and raise a right to

relief above the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887

F.3d 329, 333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ.

P. 8(a)(2) (requiring a complaint to contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.”). A court deciding a Rule 12(b)(6)

motion accepts the plaintiff’s well-pleaded factual allegations as true and draws all

permissible inferences in their favor. See Fortres Grand Corp. v. Warner Bros. Entm’t

Inc., 763 F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead “detailed factual

allegations”, but “still must provide more than mere labels and conclusions or a

formulaic recitation of the elements of a cause of action for her complaint to be

considered adequate under Federal Rule of Civil Procedure 8.” Bell v. City of Chi.,

835 F.3d 736, 738 (7th Cir. 2016) (quotations and citation omitted).

Dismissal for failure to state a claim is proper “when the allegations in a

complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 1966 (2007). Deciding the

plausibility of the claim is “‘a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.’” McCauley v. City of Chi., 671

F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

III. Analysis

A. Illinois Whistleblower Act

Section 15(b) of the Illinois Whistleblower Act (“IWA”) states that “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 that the

information discloses a violation of a State or federal law, rule, or regulation.” 740

ILCS 174/15(b). The Defendant’s only contention is that Executive Order 2020-10

does not qualify as a “state or federal law, rule, or regulation.” (Dkt. 18 at 3–5, citing

740 ILCS 174/15).

Biomat first addresses the case law, pointing out that its “research turned up no

cases in which a court allowed a plaintiff to assert an IWA claim after ‘blowing the

whistle’ on an alleged violation of an executive order.” (Dkt. 18 at 4) (emphasis added).

But Biomat does not appear to have found any cases in which a court denied such an

IWA claim either, as the only opinions it cites are inapposite. See Milsap v. City of

Chicago, No. 16 CV 4202, 2019 WL 4749971, at *5 (N.D. Ill. Sept. 30, 2019) (plaintiff

denied summary judgment on IWA claim premised on reporting the violation of a city

ordinance, because it was neither a state nor a federal law); Sweeney v. City of

Decatur, 79 N.E.3d 184, 189–90 (Ill. App. 2017) (IWA claim failed because plaintiff

only notified the lawbreaker and not another authority that he was violating state

law, the opinion contains no discussion of the meaning of “law, rule, or regulation”);

Larsen v. Provena Hospital, 27 N.E.3d 1033 (Ill. App. 2015) (considering whether

Hospital Act preempted the IWA and how IWA defines “employee,” not the meaning

of “law, rule, or regulation”); Sardiga v. Northern Trust Company, 948 N.E.2d 652,

656–658 (Ill. App. 2011) (applying 174/20 not 174/15, no discussion of the meaning of

“law, rule, or regulation”).

Biomat next argues, without citing any case law, that because Executive Order

2020-10 did not go through the full legislative process, it does not qualify as a law,

rule, or regulation. (Dkt. 18 at 4–5). The Court is not persuaded. As Brown points out,

the Governor issued this Executive Order pursuant to the Illinois Emergency

Management Agency Act. (Dkt. 20 at 3, citing Executive Order 2020-10, § 17; 20 ILCS

3305/7). The Act, which did undergo the full legislative process, empowers the

Governor to draft and enforce necessary emergency orders during a disaster.

The IWA’s definition section does not define the terms “law”, “rule”, or

“regulation.” 740 ILCS 174/5. Unless terms are otherwise defined, the Court

interprets them “as taking their ordinary, contemporary, common meaning”. United

States v. Melvin, 948 F.3d 848, 852 (7th Cir. 2020). Executive Orders are “rules” in

the ordinary sense of the word; they are edicts that citizens must obey. Furthermore,

giving these terms a narrow or formalistic definition would not be in keeping with

the rest of the IWA, which requires only that employees have “reasonable cause to

believe that the information discloses a violation of a State or federal law, rule, or

regulation.” (Dkt. 20 at 5, citing 740 ILCS 174/15(b)) (emphasis added). Brown

believed his employer was violating the state’s rules when it violated Governor

Pritzker’s Executive Order. This Court cannot say that belief was unreasonable.4 As

such, the Court holds that Executive Orders are “rules” within the meaning of the

statute.

B. Retaliatory Discharge

To state a claim of retaliatory discharge, an Illinois tort, a plaintiff must establish

that “(1) the employer discharged the employee, (2) the discharge was in retaliation

for the employee’s activities, and (3) the discharge violates a clearly mandated public

policy.” See Roberts v. Board of Trustees of Community College District No. 508, 135

N.E.3d 891, 896 (Ill. 2019). Biomat concedes that Brown has alleged facts sufficient

to satisfy the first two elements. (Dkt. 18 at 5). The only question is whether his

discharge violated a clear mandate of public policy.

4 Brown also argues that the IWA included commentary about Governor Pritzker’s COVID-19-related

Executive Orders. (Dkt. 20 at 5–6). The commentary Brown cites was written by Westlaw’s Editorial

team not by the legislature and the Court will not rely on it as a statutory interpretation tool. However,

this commentary and Brown both observe that a later Executive Order provides: “[p]ursuant to Section

25(b) of the Whistleblower Act, 740 ILCS 174, businesses are prohibited from retaliating against

employee for disclosing information where the employee has reasonable cause to believe that the

information discloses a violation of this Order.” Executive Order 2020-32, §18 (April 30, 2020).

Brown makes two arguments, essentially in the alternative. First, he argues that

the IWA is itself a clear mandate of public policy: the public policy against punishing

whistleblowers. (Dkt. 20 at 9). Plaintiff cites no case law in support of this argument

and only briefly discusses it, so the Court finds that it has been waived. In any case,

if the IWA constituted a clearly mandated public policy for purposes of the tort of

retaliatory discharge then the tort remedy and the statutory remedy would be

coextensive. The Illinois Supreme Court has implied that where the underlying law

contains its own deterrent mechanism, the tort of retaliatory discharge is unlikely to

be an appropriate remedy. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 508, 568

N.E.2d 870, 876 (1991).

In the alternative, Brown argues that the public policy in question was the

“statutory scheme” of “programs to help [Illinois] citizens combat the virus” (Dkt. 20

at 10). The Court understands Plaintiff to be referring to Governor Prizker’s

Executive Orders and their enabling statute, the EMAA.

Biomat first counters that “public policy” can only be found in “the state or federal

constitutions and statutes, and, when they are silent, in Illinois or federal case law.”

Roberts v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 135 N.E.3d 891, (Ill. 2019) (citing

Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 880 (Ill. 1981)). Biomat asserts that

because Brown reported violations of an executive order promulgated under a state

statute rather than violations of the statute itself, no public policy could have been

implicated by his firing. (Dkt. 25 at 3–4). But the Palmateer quote Biomat excerpts

from Roberts is incomplete, and Biomat interprets it too literally.

In Palmateer, the Illinois Supreme Court recognized a “clear mandate of public

policy” when an employee was fired “for supplying information to a local law-

enforcement agency”. Palmateer, 421 N.E.2d at 879. The Court emphasized that

enforcement of the state’s criminal code was a core public policy and reasoned more

broadly that “[t]here is no public policy more important or more fundamental than

the one favoring the effective protection of the lives and property of citizens.” Id. at

879 (emphasis added). The Illinois Supreme Court allowed both an IWA claim and a

retaliatory discharge claim, and observed that “[t]here is no precise definition of the

term [‘public policy’]. In general, it can be said that public policy concerns what is

right and just and what affects the citizens of the State collectively.” Palmateer, 421

N.E.2d at 878–79. It went on to say that “a matter must strike at the heart of a

citizen’s social rights, duties, and responsibilities before the tort [of retaliatory

discharge] will be allowed.” Id. Importantly, the Illinois Supreme Court also said that

“[n]o specific constitutional or statutory provision requires a citizen to take an active

part in the ferreting out and prosecution of crime, but public policy nevertheless

favors citizen crime-fighters.” Palmateer, 421 N.E.2d at 880. Although no specific

constitutional or statutory provision requires citizens to uphold the state’s COVID-

19 safety protocols, it is difficult to imagine rules that strike more directly “at the

heart of a citizen’s social rights, duties, and responsibilities.”

Boimat next tries to distinguish Palmateer, but its analogies to other cases about

medical treatment are unpersuasive. They describe instances in which medical

professionals were fired for reporting deviations from best-practices to medical

authorities, not reporting serious violations of an Executive Order to a federal agency

in the midst of a national crisis.

In Turner v. Mem’l Med. Ctr., the Illinois Supreme Court held that a respiratory

therapist did not state a claim of retaliatory discharge after he was fired for

complaining to his hospital’s non-profit accreditor. 233 Ill.2d 494, 503 (Ill. 2009). He

complained the hospital allowed therapists to complete patients’ charts any time

during their shift rather than immediately after appointments. Delayed

recordkeeping was not in keeping with the accreditor’s own best practices, and

therefore violated the Illinois patients’ statutory right “to care consistent with sound

nursing and medical practices.” Id. at 498. The Supreme Court found that “patient

safety” was a “broad, general statement of policy” and therefore “inadequate to justify

finding an exception to the general rule of at-will employment,” in part because it

“fail[ed] to provide essential notice to employers.” Id. at 502–03. The facts of Turner

are a far cry from the facts before the Court today. The violations Brown witnessed

contravened a very specific Executive Order. The public policy evinced by that

Executive Order was clearly articulated. Brown reported the violations he witnessed

to the FDA (a government agency tasked with safeguarding public welfare, similar to

Palmateer).

Likewise, in Ulm v. Mem’l Med. Ctr., an Illinois appellate court held that the

plaintiff, a hospital operations manager, had not stated a claim of retaliatory

discharge. 964 N.E.2d 632, 638 (Ill. App. 4th 2012). She was fired for refusing to

certify that a patient’s medical records were complete and for complaining that the

hospital’s recordkeeping system did not comply with accreditor standards and

therefore with state law. Id. The Ulm court issued a very narrow ruling against the

plaintiff, saying her firing “could not have violated a clearly mandated public policy

[. . .] because plaintiff, as operations manager of the health information department

and its representative with respect to the hospital’s accreditation, was herself

responsible for bringing defendant into compliance with the regulations she

complained defendant violated.” Id. (emphasis added). Biomat has not argued that

Brown was responsible for its violations of the Executive Order.

Public policy is identified by “examining the history, purpose, language and effect

of the provision.” Hinthorn v. Roland’s of Bloomington, Inc., 519 N.E.2d 909, 913 (IIL.

1988). Executive Order 2020-10 demonstrates a commitment to public health and

combatting the spread of COVID-19. Assuming Biomat discharged Brown under the

circumstances alleged, Brown has plausibly claimed that it violated a clearly

mandated public policy.

IV. Conclusion

For these reasons, Biomat’s motion to dismiss (Dkt. 17) Counts I and II is denied.

Biomat shall file its Answer by August 17, 2021.

ENTER:

Dated: July 28, 2021 □□□ □□ □□

“MARYM.ROWLAND

United States District Judge

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