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Siegel & Dolan, Ltd. Wins Cross-Motion for Summary Judgment on Whistleblower Claims.

On October 29, 2015, Judge Pallmeyer of the United States District Court for the Northern District of Illinois granted Melissa Coffey’s cross-motion for summary judgment in the case of Coffey v. DSW Shoe Warehouse, Inc., No. 14 C 4365. Ms. Coffey filed a two-count complaint alleging DSW, her former employer, fired her in violation of the Illinois Whistleblower Act (“IWA”) and Illinois common law. At the close of discovery, the parties filed cross-motions for summary judgment.

On August 28, 2009, Ms. Coffey, who was the manager on duty, was informed by an associate employee that a group of customers in the store at the time had shoplifted earlier that week. Ms. Coffey observed that the identified customers appeared to be strategically positioned around the store, and were not acting like normal customers. She also observed a running car backed into a parking spot directly in front of the store. Believing that the customers were attempting to shoplift again, Ms. Coffey decided that the police should be called, and announced over the store’s walkie-talkie that the police were going to be contacted. Hearing Ms. Coffey’s directive, another associate called 9-1-1. Shortly thereafter, a Skokie police officer arrived at DSW’s store. Ms. Coffey identified the remaining suspected shoplifter to the police officer (the other suspects left the store when they overheard that the police had been called), and the customer was questioned by the police officer. Later that evening, Ms. Coffey reported the incident to her supervisors. Less than one week later, on September 2, 2009, DSW fired Ms. Coffey for violating the Company’s policy, which prohibits employees from contacting law enforcement about suspected shoplifters.

The IWA explicitly prohibits an employer from “mak[ing], adopt[ing], or enforce[ing] any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.” Moreover, according to the Act, “an employer may not retaliate against an employee for disclosing information to the government or a 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 Ill. Comp. Stat. 174/15. Similarly, under Illinois common law an employer may not fire an employee in retaliation for her reporting potential criminal activity to the police. Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 877-78 (Ill. 1981)

Based upon the evidence, Judge Pallmeyer found that Ms. Coffey was a protected whistleblower, even though Ms. Coffey did not personally call 9-1-1, and that Ms. Coffey had reasonable cause to believe that the identified customers were going to shoplift. Judge Pallmeyer also rejected DSW’s argument that that the IWA’s protections were limited solely to employees reporting the potentially unlawful conduct of their employer. Rather, Judge Palllmeyer agreed with Ms. Coffey that based upon the plain language of the Act, employees reporting any potential unlawful activity to law enforcement are protected. Accordingly, Judge Pallmeyer granted Ms. Coffey’s motion for summary judgment holding that DSW’s decision to fire Ms. Coffey for contacting the police about the suspected shoplifters violated the IWA and constituted a common law retaliatory discharge.