Carty v. Suter Company, Inc.

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-0408 Rel

Case Date: 02/14/2007

Preview:No. 2--06--0408 Filed 2/14/07 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ JACK CARTY, ) Appeal from the Circuit Court ) of De Kalb County. Plaintiff-Appellant, ) ) v. ) No. 03--L--45 ) THE SUTER COMPANY, INC., ) Honorable ) Kurt P. Klein, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE BYRNE delivered the opinion of the court: Plaintiff, Jack Carty, filed a two-count complaint against defendant, The Suter Company, Inc., alleging retaliatory discharge. The trial court granted summary judgment, holding that plaintiff cannot state a cause of action, and plaintiff timely appealed. We reverse and remand. I. Background Plaintiff was employed by defendant, a manufacturer of food products, from May 18, 1987, through July 1998, and from February 1999 until his termination on May 22, 2002. In count I of the complaint, plaintiff alleged that from December 2000 through May 2002, plaintiff worked, on average, 6 days per week for 11 hours per day and "rarely received a lunch break," in violation of the One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)). On May 20, 2002, plaintiff confronted the plant manager about the issue. On May 22, 2002, defendant terminated plaintiff.

No. 2--06--0408 Plaintiff alleged that he was discharged in retaliation for reporting the lunch-break violation to the plant manager and that his discharge violates public policy. In count II, plaintiff alleged that around May 17, 2002, he saw several buttermilk containers in the garbage with "use by" dates of May 25, 2002, and June 6, 2002. The buttermilk had been used in salads bearing "use by" dates of June 24, 2002, and the salads had been shipped to customers. In addition, plaintiff noticed that defendant had listed certain ingredients on a product label when those ingredients were not in the product. According to plaintiff, defendant's "batch-making and labeling practices were unlawful according to various federal laws and regulations." On May 20, 2002, plaintiff confronted the plant manager about the "questionable" practices. On May 22, 2002, defendant terminated plaintiff. Plaintiff alleged that he was discharged in retaliation for reporting his concerns to the plant manager and that his discharge violates public policy. Plaintiff was deposed on December 9, 2003. His testimony was consistent with the allegations of his complaint. Sometime thereafter, defendant filed a motion for summary judgment. The record does not contain defendant's motion; however, it does contain plaintiff's response and defendant's reply. From these documents, and from the transcript of the hearing on the motion, we can glean defendant's argument for summary judgment. It appears that defendant argued that because plaintiff did not report the violations of state and federal law to government agencies, he cannot state a claim under the Illinois Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). In addition, defendant argued that plaintiff cannot state a claim because the statutes involved, i.e., the One Day Rest in Seven Act (820 ILCS 140/1 et seq. (West 2002)) and the Federal Food, Drug, and Cosmetic Act of 1938 (21 U.S.C.

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