Sample Student-Written Memorandum Assignment Memorandum: MEMORANDUM TO: Paralegal FROM: Mary Alice Kenny, Senior Partner Dat May 30, 2003 RE: Angela Tattletale, File No. 92-111 Yesterday I interviewed a new client, Angela Tattletale, Ms. Tattletale has decided to retain our Jaw firm to represent her in an action against her employer for terminating her During my interview with Ms. Tattletale, she described the events leading up to her dismissal Ms. Tattletale works for We Cheat Um & Howe Trucking Company. We Cheat Um sells and leases used trucks of all varieties. Ms. Tattletale said that as of last year, We Cheat Up has been purchasing used trucks that were used to transport hazardous and toxie materials, and is reselling or leasing the rucks to customers without telling them about the prior use made of the trucks. Ms, Tattletale told me that a large percentage of these trucks will be rented this summer to store food at the Taste of Chicago On January 3, 2003, Ms. Tattletale had an argument with her immediate supervisor, Joe Ponelli, over her excessive tardiness. Ms. Tattletale said she was so angry that later that afternoon she called the Illinois Environmental Protection Agency and the State s Attorney s Office and reported her employer s activities concerning leasing and selling used trucks that had held hazardous and toxic materials. We Cheat Um is located in an industrial area of the town of Suburbia, Suburbia has Ordinance 9-20 which states: In order to protect the health, safety and welfare of the citizens of Suburbia, an employee of any entity doing business in Suburbia shall be required to report any violations of the State or Federal health and environmental laws and regulations. Failure byan employee to report any violations will subject the employee to a $500.00 fine. On February 3, 2003, We Cheat Um received a letter from the Illinois EPA informing company officials of the opening of an investigation concerning selling and leasing trucks that had held hazardous and toxic waste. On February 4, 2003, Ms. Tattletale was terminated without severance pay. We Cheat Um told her she was terminated for excessive tardiness. Ms. Tattletale insists she was fired for blowing the whistle on We Cheat Um. I want to pursue a claim against We Cheat Um for retaliatory discharge. By July 11, 2003, prepare a legal memorandum on the cause of action for retaliatory discharge. Check for any federal or state statutes on retaliatory discharge. Also, see if there are any whistle- blowing statutes, Find only Illinois cases on this issue. Discuss any statutes and cases and applythem to Ms, Tattletale s case. Tell me if Ms. Tattletale has a cause of action for retaliatory discharge. RESPONSE MEMORANDUM MEMORANDUM To: Mary Alice Kenny FROM: Diane M. McAvoy DATE: June 24, 1992 RE: Angela Tattletale, File No. 92-111 ISSUES PRESENTED 1 Whether an employee, Ms. Tattletale, who was discharged for reporting her employer s activities concerning selling and leasing trucks containing hazardous and toxic waste, may state a cause of action for retaliatory discharge. I. Whether the discharge of Ms. Tattletale, as a result of her reporting, violates a clear mandate of public policy. STATEMENT OF FACTS ‘Angela Tattletale was employed by We Cheat Um & Howe Trucking Company (We Cheat Um), a business that sells and leases used trucks for a variety of purposes. MS. Tattletale knew that some We Cheat Um trucks were used to transport hazardous and toxic materials and were resold or leased to customers without We Cheat Um informing the customers about the prior use made ofthe trucks. Ms. Tattletale became aware that some trucks were to be rented to store food at the Taste of Chicago festival. On January 3, 2003, Ms. Tattletale had an argument with her employer over her excessive tardiness. Later that aftemoon, Ms. Tattletale reported her employer s activities to the Illinois Environmental Protection Agency (IEPA) andthe State s Attorneys Office. In Suburbia, where We Cheat Um is located there is an ordinance that states as follows: In order to protect the health, safety and welfare of the citizens of Suburbia, an employee of any entity doing business in Suburbia shall be required to report any violations of State or Federal health and environmental laws and regulations. Failure by an employee to report any violations will subject the employee to a $500.00 fine. On February 3, 2003, We Cheat Um received notice from the IEPA that an investigation had been opened concerning selling and leasing trucks containing hazardous and toxic waste, On February 4, 2003, We Cheat Um informed Ms. Tattletale that she was terminated for excessive tardiness. DISCUSSION The first issue is whether an employee discharged foralleged excessive tardiness can state a cause of action for retaliatory discharge for reporting her employer s activities regarding toxic and hazardous waste. The second issue presented is whether an employer s discharge of an employee, as a result of the employee s reporting of the employer s unlawful activities, violates a clear mandate of public policy. Until 1978, the law provided that an employee who did not have an employment contract ‘was terminable at the will of the employer, and he employee had no cause of action against the ‘employer as a result of the discharge. Brougham v. Paul, 138 Ill. App. 455 (1908). IN 1978, the Ilinois Supreme Court first recognized a tort action for retaliatory discharge. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978). In Kelsay court concluded that the employee properly stated a cause of action for retaliatory discharge. In doing so, the court relied on section 138.4(h) of the Workers Compensation Act, which now states in part: It shall be unlawful for any employer... to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act.It shall be unlawful for any employer... to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act. IIL. Ann. Stat. ch.48, para. 138.4(h) (Smith-Hud 1986 & Supp. 1992). In construing the statute, the court held that the plaintiff could maintain a civil action for retaliatory discharge The court concluded that the legislative intent of the Workers Compensation Act was to protect employees who exercise their right to file a claim under the Act. In this case, the Workers Compensation Act does not apply because Ms. Tattletale did not file a workers compensation claim. Nevertheless, the public policy consideration noted in Kelsay and its holding may apply to this case if we can establish that public policy has been violated. In Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981), the plaintiff, a 16-year employee of Intemational Harvester, alleged that the company discharged him because he informed local law enforcement authorities of a possible violation of the criminal code by a co-employee and because the plaintiff agreed to assist in the investigation and trial of the co-employee. The Illinois Supreme Court broadened its application of Kelsay and held that, the plaintiff had stated a cause for retaliatory discharge. In doing so the court stated, all that is, required is that the employer discharge an employee in retaliation for the employee s activities, and that the discharge be in contravention of a clearly mandated public policy. Palmateer, 85 Il. 2d at 134, 421 N.E.2d at 881. The supreme cout viewed its broader recognition of retaliatory discharge as necessary to maintain a proper balance... among the employer s interest in operating a business efficiently and profitable, the employee s interest in earning a livelihood and society s interest in seeing its public policies carried out. Palmateer, 85 Ill. 2d at 129, 421 N.E.2d at 878. The courtacknowledged, however, that the Achilles heel of the principle lies in the defin ion of public policy. Palmateer, 85 Ill. 2d at 130, 421 N.E.2d at 878. In balancing the respective interests noted above, the Palmateer court recognized that no publie policy is more basic than the enforcement of a state s criminal code. Once the plaintiff in Palmateer reported the possibility of crime, he had a statutory duty to further assist public officials. In Palmateer, the cot held that to establish a cause of action for retaliatory discharge, a plaintiff is required to plead and prove the following elements: (1) the plaintiff was discharged, (2) in retaliation for certain activity, and (3) that the discharge violates a clear mandate of public policy. Palmateer, 85 Ill. 2d at 134, 421 ‘N.E.2d at 881. In this case, there is no question that Ms. Tattletale was discharged. The remaining issues are whether Ms, Tattletale was discharged in retaliation for her action in reporting her employer s unlawful activities to the Illinois Environmental Protection Agency and whether her discharge violates a clear mandate of public policy. There is a series of statutes dealing with environmental protection, including protection against hazardous and toxic waste. Section 1052(a) of the Illinois Environmental Protection Act provides: ‘No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this Act, 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. IIL Ann. Stat. Ch. 111 %, para, 1052(a) (Smith-Hurd 1988 & Supp. 1992). This is virtuallyidentical to section 138.4(h) of the Workers Compensation Act cited by the Illinois Supreme Court in Kelsay, where the court first recognized a cause of action for retaliatory discharge. In addiction, Ordinance 9-20 enacted by the Village of Suburbia states: In order to protect the health, safety and welfare of the citizens of Suburbia, an employee of any entity doing business in Suburbia shall be required to report any violations of State or Federal health and environmental laws and regulations. Failure by an employee to report any violations will subject the employee to a $500.00 fine. In Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485 N.E.2d 372 (1985(, Wheeler was a radiographer in the X-ray department of Caterpillar Tractor Company, where he handled radioactive cobalt, Wheeler asked for a transfer out of his unit because he feared for his safety. Wheeler alleged that he was denied a transfer and was discharged in retaliation for his refusal to work with cobalt, In Wheeler, the court was dealing with a Federal statute, section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (1982). In Wheeler, the court held that if Wheeler could prove the allegations set forth in his complaints, he was entitled to recover for retaliatory discharge. Because plaintiff alleged his discharge was in violation of a clearly mandated public policy, the court stated that [the protection of the lives and property of citizens from hazards of radioactive material is as, important and fundamental as protecting them from crimes of violence. Wheeler, 108 Ill. 2d at S11, 485 N.E.2d at 377. The federal Energy Reorganization Act contains a provision similar to the one found in the Illinois Workers Compensation Act and the Illinois Environmental Protection Act: Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretaryof Labor (hereinafter in ths subsection referred to as the Secretary ) alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named i the complaint of the filing of the complaint and the Commission. 42 U.S.C. § 5851(b) (1988). The court held that in addition to the remedy provided in the federal statue, Mr. Wheeler had an action for retaliatory discharge. In Balla v. Gambro, Inc., 203 Ill. App.3d 57, 560 N.E.2d 1043 (1990), Balla was in-house counsel for Gambro and reported to the Food and Drug Administration (FDA) that Gambro would be receiving and selling defective dialyzers. Balla was terminated shortly afterward. The court held that there is no public policy more important than the one favoring the efictive protection of the lives and property of its citizens. For safety reasons, public policy clearly favored the prevention of interstate and intrastate distribution of misbranded or adulterized dialyzers, Itis clear that both federal and Illinois statutes express strong public policies to prevent the possible harm to citizens by contamination from toxic and hazardous waste. In Ms. Taitletale s case, there is even a statute that requires all employees to report any violations, and an employee s failure to do so subjects the employee to a possible criminal charge and a $500.00 fine. Therefore, itis evident that the Village of Suburbia s public policy mandates that employees report any violations to the appropriate authority. Nevertheless, Ms. Tattletale would still be required to establish that she was discharged in retaliation for her reporting of her employer s activities, In Zientara v. Long Creek Township, 2111 Ill. App. 3d 226, 569 N.E.2d 1299 (1991), a township employee worked in the water department and noticed and reported to authorities several dangerous conditions that existed in the water tower and that were in violation of IEPA regulations. Relying on the Illinois Freedom of Information Act, the employee also requested information about finances of the water plant and superintendent s salary. In addition, theemployee inquired about the superintendent s use and abuse of the township s truck and water plant, and complained that he was not being paid enough for overtime. In Zientara, the court attempted to define what constitutes clearly mandated public policy. Zientara, 211 Ill. Ap. 3d at 236, 569 N.E.2d at 1304. Before the action will be allowed a matter must strike at the heart of a citizen s social rights, duties, and responsibilities. Where only a private interest is at stake, the action will not be allowed. The court construed the Illinois Environmental Protection Act and held that an employee must be allowed to call o the attention of the appropriate authority a violation of the Act without being discharged in retaliation. In Fellhauer v. City of Geneva, 142 III. 2d 495, 568 N.E.2d 870 (1991), Fellhauer was a former director of the city electric department and brought a retaliatory discharge action against the Mayor and City of Geneva. Fellhauer alleged that Lewis, prior to being elected as Mayor, asked Fellhauer to slow down negotiations with WEPCO for sale of electric power to the city. Fellhauer refused. Later, Lewis was elected, and Fellhauer alleged that Mayor Lewis solicited contributions from city vendors and that Fellhauer told these vendors they need not contribute. Fellhauer further alleged that he referred questions to the city attorney. Fellhauer also alleged that Mayor Lewis asked him to sell out contracts with WEPCO and negotiate new contracts with Commonwealth Edison. Fellhauer again refused. Fellhauer reported these actions to the city council s electric committee. Afier Mayor Lewis told him to stop, the Mayor terminated Fellhauer. The court held that Fellhauer could not establish thathe was discharged because of his activities. The statute in Fellhauer dealing with public employees add the Mayor s authority to discharge an appoint officer made Fellhauer dismissal not a violation of clearly mandated public policy.In Ms. Tattletale s case, the employer states that it fired Ms. Tattletale because of her excessive tardiness. If this is true, she will have no action for retaliatory discharge. However, a careful review of the facts establishes that the argument she had with her immediate supervisor over excessive tardiness took place on January 3,2003, and she was not terminated until February 4, 2003, one day after We Cheat Um received notice from the IEPA that an investigation had been initiated, Therefore, although We Cheat Um might claim to have fired Ms, Tattletale for excessive tardiness, We Cheat Um waited more than thirty days to fire her. It appears the real reason for the discharge was Ms. Tattletale s report to the IEPA. CONCLUSION Ms. Tattletale can plead a case for retaliatory discharge and claim that the discharge was in violation of a clearly mandated public policy. However, the question will remain at trial as to whether she was discharged because of her excessive tardiness or as a result of her whistle- blowing regarding her employer s unlawful activities concerning hazardous and toxie materials. Because of her employer s delay in firing her, the facts appear to show that she was discharged as a result of her whistle-blowing. Ms, Tattletale may not only have a claim for retaliatory discharge, but as noted in Wheeler, she may also commence an action under the federal Energy Reorganization Act by filing a claim with the US Department of Labor, which may provide for reinstatement of position, attorneys fees and costs, and compensatory damages,