Docket No. 95913-Agenda 34-September 2003.

LINETTE METZGER, Appellee, v. TIMOTHY DaROSA et al., Appellants.

Opinion filed February 20, 2004.

JUSTICE KILBRIDE delivered the opinion of the court:

This case is before us on questions of Illinois Law certified by theUnited States Court of Appeals for the Seventh Circuit. 145 Ill. 2d R. 20.The certified questions are:

"1. Does Section 19c.1 of the Illinois Personnel Code, 20ILCS 415/19c.1, create an implied private right of action?

2. If there is an implied private right of action under Section19c.1, is that action limited to one against the employer (i.e., theState of Illinois), or may it also be brought against individualemployees (i.e., supervisors, managers, or others who retaliateagainst the whistleblower)?"

For the reasons that follow, we hold that under Illinois Law,section19c.1 of the Personnel Code (20 ILCS 415/19c.1 (West 2002))does not create an implied private right of action.

I. BACKGROUND

In the underlying case, Linette Metzger (Metzger), an employee ofthe Illinois State Police, filed a multiple-count action in federal courtagainst the State Police and several individuals, alleging sexual harassment,gender discrimination, and retaliation in violation of federal statutes andconstitutional provisions, and one count of a violation of section19c.1 ofthe Personnel Code (20 ILCS 415/19c.1 (West 2002)).

The parties have differing interpretations of the events that led to thisaction. According to Metzger, she reported multiple attendance abusesinvolving employees who were paid for days when they were not at work,giving the Department of Internal Investigation (DII) over 40 pages ofdocumentation. The DII returned the documents to Metzger and told herto inform her supervisor. Metzger informed her supervisor, BetsyWasmer-Ryherd (Wasmer), by e-mail. Wasmer immediately chargedMetzger herself with attendance abuse to DII, but the allegations werenever substantiated. Wasmer then transferred Metzger to another divisionand revoked her 24-hour building access privileges. At her new division,Metzger had no work assignments for some time. Metzger also claimedthat Wasmer and others attempted to retaliate further by changingMetzger's work schedule at her new job without discussing it with hernew supervisor. According to Metzger, the transfer adversely affected herchances for promotion and job advancement.

According to defendants, Metzger first told Wasmer in 1996 thatanother employee was not properly accounting for time off. Wasmerdiscussed the matter with the employee and corrected the records tocharge two days off against the employee. Two years later, without askingWasmer if the problem had been corrected, Metzger reiterated thecomplaint to the DII. The DII told Metzger to discuss it with Wasmer.When Wasmer received Metzger's e-mail, she checked all the employeetime records and discovered that Metzger was frequently late for work.Wasmer also suspected that Metzger was going through other employees'desks after hours. Wasmer requested that Metzger be transferred toanother unit and revoked Metzger's 24-hour building access.

The jury found in Metzger's favor on the count alleging violation ofsection19c.1of the Personnel Code and awarded damages. All othercounts were decided in favor of the defendants by court ruling or verdict.Both parties appealed.

On appeal, the state defendants argued that there is no implied rightof action under section19c.1 and that the verdict on that count should bereversed. Alternatively, defendants argued any cause of action implied bythat statute would only lie against the State of Illinois and a federal actionagainst the state is barred by the eleventh amendment.

Perceiving a need for this court to decide authoritatively the issue ofwhether section19c.1 of the Personnel Code creates an implied privateright of action and, if there is such a right, whether that action is limited toone against the employer (i.e., the State of Illinois), or whether it may alsobe brought against individual employees (i.e., supervisors, managers, orothers who retaliate against the whistleblower), the United States Courtof Appeals for the Seventh Circuit certified these questions to this courtpursuant to Supreme Court Rule 20 (145 Ill. 2d R. 20).⁽¹⁾ We agreed toanswer the certified questions.

II. ANALYSIS

We are first asked to answer the following certified question:

"1. Does Section 19c.1 of the Illinois Personnel Code, 20 ILCS415/19c.1, create an implied private right of action?"

Since the resolution of the certified question involves an interpretationof the Personnel Code (20 ILCS 415/1 et seq. (West 2002)), it presentsa question of law that we review de novo. Carver v. Sheriff of La SalleCounty, 203 Ill. 2d 497, 506-07 (2003). In construing the meaning of astatute, the primary objective of this court is to ascertain and give effect tothe intention of the legislature, and all other rules of statutory constructionare subordinated to this cardinal principle. Carver, 203 Ill. 2d at 507. Theplain language of the statute is the best indicator of the legislature's intent.Allstate Insurance Co. v. Menards, Inc., 202 Ill. 2d 586, 591 (2002).When the statute's language is clear, it will be given effect without resortto other aids of statutory construction. Petersen v. Wallach, 198 Ill. 2d439, 445 (2002).

Section 19c.1 of the Personnel Code provides:

"(1) In any case involving any disclosure of information by anemployee which the employee reasonably believes evidences-

(i) a violation of any law, rule, or regulation; or

(ii) mismanagement, a gross waste of funds, an abuse ofauthority, or a substantial and specific danger to public health orsafety if the disclosure is not specifically prohibited by law, theidentity of the employee may not be disclosed without theconsent of the employee during any investigation of theinformation and any related matters.

(2) No disciplinary action shall be taken against anyemployee for the disclosure of any alleged prohibited activityunder investigation or for any related activity. For thepurposes of this Section, disciplinary action means anyretaliatory action taken against an employee, including butnot limited to reprimand, suspension, discharge, demotion ordenial of promotion or transfer." (Emphasis added.) 20 ILCS415/19c.1 (West 2002).

Section 19c.1 does not articulate any precise relief for a state employeewho suffers retaliatory action in violation of this provision. Nor does anyother provision of the Personnel Code expressly provide state employeeswith the right to pursue an action for damages under section 19c.1. Thelack of specific statutory language granting such a right, however, is notnecessarily dispositive because a court may determine that a private rightof action is implied in a statute. See Fisher v. Lexington Health Care,Inc., 188 Ill. 2d 455, 460 (1999); Rodgers v. St. Mary's Hospital ofDecatur, 149 Ill. 2d 302, 308 (1992); Sawyer Realty Group, Inc. v.Jarvis Corp., 89 Ill. 2d 379, 386-87 (1982). Metzger urges this court tofind that section 19c.1 implies a private right of action for state employeeswho are subjected to retaliatory action for reporting wrongdoing by otherstate employees.

This court recently reiterated that there are four factors to beconsidered in determining if a private right of action may be implied froma statute:

"Implication of a private right of action is appropriate if: (1) theplaintiff is a member of the class for whose benefit the statutewas enacted; (2) the plaintiff's injury is one the statute wasdesigned to prevent; (3) a private right of action is consistent withthe underlying purpose of the statute; and (4) implying a privateright of action is necessary to provide an adequate remedy forviolations of the statute." Fisher, 188 Ill. 2d at 460 (citingRogers, 149 Ill. 2d at 308, and Corgan v. Muehling, 143 Ill. 2d296, 312-13 (1991)).

In Fisher, plaintiffs sought to pursue an action for damages undersection 3-608 of the Nursing Home Care Act (210 ILCS 45/3-608(West 1996)). Section 3-608 provides:

"A [nursing home facility] licensee or its agents or employeesshall not transfer, discharge, evict, harass, dismiss, or retaliateagainst a resident, a resident's representative, or an employee oragent who makes a report *** or brings or testifies in an action*** or files a complaint *** because of the report, testimony, orcomplaint." 210 ILCS 45/3-608 (West 1996).

In applying the four factors, this court determined that section 3-608does not imply a private right of action for nursing home employees whoare retaliated against by their employer. Fisher, 188 Ill. 2d at 460. First,we determined that plaintiffs were not members of the class that theNursing Home Care Act was enacted to protect, and that their injurieswere not the type the statute was designed to prevent. Fisher, 188 Ill. 2dat 460. Moreover, we concluded that implying a private cause of actionunder the Nursing Home Care Act was not necessary to provide anadequate remedy for violations of the Act. Fisher, 188 Ill. 2d at 460. Wereasoned that the Nursing Home Care Act was enacted for the purposeof protecting and benefitting nursing home residents and that the Act wasdesigned to prevent abuse and neglect of nursing home residents as wellas other violations of residents' rights. Fisher, 188 Ill. 2d at 462. We alsoreasoned that the legislature had provided an adequate statutoryframework to encourage reporting of violations and to punish retaliation.Fisher, 188 Ill. 2d at 467. Accordingly, we held that section 3-608 of theNursing Home Care Act does not imply a private right of action fornursing home employees who are retaliated against by their employer.Fisher, 188 Ill. 2d at 468.

The case before us now is similar to Fisher. In applying the factorsdelineated in Fisher, we first consider whether Metzger is a member ofthe class for whose benefit the statute was enacted. The GeneralAssembly enacted the Personnel Code in 1955 "to revise the law inrelation to personnel administration and to make appropriations inconnection therewith." 1955 Ill. Laws 2208 (eff. July 18, 1955). Thestated purpose of the Personnel Code is "to establish for the governmentof the State of Illinois a system of personnel administration under theGovernor, based on merit principles and scientific methods." 20 ILCS415/2 (West 2002). Metzger argues that the plain language of section 2of the Personnel Code indicates that it was designed to protect civilservice employees. Defendants argue that the general public is the class forwhose benefit the Personnel Code was enacted.

When interpreting legislative enactments, we must read the statute asa whole and not as isolated provisions. Fisher, 188 Ill. 2d at 463. Illinoiscourts have determined that the purpose of the Personnel Code is toensure competent employees for government bodies and, in carrying outthat purpose, to protect state employees from discharge for political orcapricious reasons. See Brown v. Department of Corrections, 199 Ill.App. 3d 648, 650 (1990); Hacker v. Myers, 33 Ill. App. 2d 322, 333(1961); People v. Niewinski, 13 Ill. App. 2d 307, 314 (1957).Moreover, this court has held that the purpose of civil service laws is toincrease the efficiency of the public service to obtain better practicalresults in state service by improving methods, using the services of theemployees in the best manner in order that the state may obtain itsmoney's worth in the services rendered. See People ex rel. Baird v.Stevenson, 270 Ill. 569, 573-74 (1915).

When viewed as a whole, it is clear that the Personnel Code wasprimarily designed to benefit the state and the people of Illinois by ensuringcompetent employees for government bodies. The protections affordedstate employees under the Personnel Code are incidental to the overallpurpose. Although section 19c.1 protects state employees from retaliatoryaction, it does so to advance the Personnel Code's central purpose ofadvancing the interest of the state and the public by encouraging stateemployees who become aware of wrongdoing by other state employeesto report the wrongdoing. See, e.g., Fisher, 188 Ill. 2d at 463 (primarypurpose of Nursing Home Care Act is to protect nursing home residents,despite specific provision protecting nursing home employees fromretaliation for reporting violation of Act). Accordingly, we conclude thatthe Personnel Code was enacted primarily to benefit the state and thepeople of Illinois by providing efficient government administration.Therefore, Metzger is not a member of the primary class for whose benefitthe statute was enacted.

Next, we consider whether Metzger's injury is one the statute wasdesigned to prevent. Again, in interpreting the Personnel Code, we mustread the statute as a whole and not as isolated provisions. Fisher, 188 Ill.2d at 463. While section 19c.1 specifically prohibits retaliating against anemployee who reports wrongdoing, the statute's broad purpose is toprotect the public by "establish[ing] for the government of the State ofIllinois a system of personnel administration *** based on merit principlesand scientific methods." 20 ILCS 415/2 (West 2002).

Just as state employees are not the class for whom the statute wasprimarily enacted to benefit, it is clear that the Personnel Code was notprimarily designed to prevent retaliation against state employees.

We next consider whether a private right of action is consistent withthe underlying purpose of the Personnel Code. The Personnel Codeprescribes procedures for appointment, promotion, and removal of stateemployees, and prohibits certain discriminatory and politically basedmisconduct. Although the Personnel Code incidentally protects stateemployees such as Metzger, no civil remedy is provided for thoseemployees injured by its violation. See, e.g., Davis v. Dunne, 189 Ill.App. 3d 739, 741-42 (1989).

State employees who report misconduct serve the public interest, andprotecting them from retaliatory action is, therefore, in the public interest.However, providing an implied right of action for state employees againstthe state would deprive the state of its independent ability to manage itsemployees and to decide whether an action is retaliation or appropriatemanagement, and would instead vest that power in a court. Accordingly,we hold that a private right of action would be inconsistent with theunderlying purpose of the Personnel Code.

Finally, we examine whether implying a private right of action isnecessary to provide an adequate remedy for violations of the PersonnelCode. This court has implied a private right of action under a statute "onlyin cases where the statute would be ineffective, as a practical matter,unless such an action were implied." Fisher, 188 Ill. 2d at 464. Whileencouraging honesty and candor among state employees is consistent withthe underlying purpose of the Personnel Code, implying a private right ofaction for state employees is not necessary to achieve that purpose.

Metzger argues that under Rodgers v. St. Mary's Hospital ofDecatur, 149 Ill. 2d 302 (1992), this court should imply a private right ofaction. In Rodgers, after determining that the plaintiff was a member of theclass for whose benefit the X-Ray Retention Act (210 ILCS 90/0.01 etseq. (West 2000)) was enacted and that plaintiff's injury was one the Actwas designed to prevent, this court noted that the Act provides no specificadministrative remedy for a violation of the Act. Rodgers, 149 Ill. 2d at308-09. We further noted that administrative remedies would not providean adequate remedy to those injured by violations of the Act and that thethreat of liability is an efficient method of enforcing the regulation.Rodgers, 149 Ill. 2d at 309. Accordingly, we concluded that a privatecause of action was necessary to provide an adequate remedy forviolations of the Act and that it was consistent with the underlying purposeof the Act.

Unlike the X-Ray Retention Act at issue in Rodgers, the PersonnelCode expressly provides sanctions and remedies for violations of itsprovisions: (1) an administrative process through the Civil ServiceCommission for both discipline and protection of state employees (20ILCS 415/10(6), 11 (West 2002)); (2) judicial review of the Civil ServiceCommission's administrative decisions (20 ILCS 415/11a (West 2002));(3) authority for the Director of Central Management Services to instituteand maintain any action or proceeding to secure compliance with thePersonnel Code and its implementing rules and orders (20 ILCS 415/16(West 2002)); and (4) criminal penalties for violation of any provision ofthe Personnel Code (20 ILCS 415/18 (West 2002)). These mechanismsare sufficient to encourage the reporting of violations of the PersonnelCode and to prevent and punish retaliatory action against state employeeswho make such reports.

Metzger could have filed a grievance under the Personnel Code, butshe did not. She complains that the grievance procedure does not providefor compensation for the damages she suffered. However, Metzger'sargument inappropriately focuses on the claimed right to compensation forher injuries rather than on whether adequate remedies are provided tomake compliance with the Personnel Code likely. See Fisher, 188 Ill. 2dat 464 (private right of action under statute will be implied only where thestatute would be ineffective, as a practical matter, unless such an actionwere implied).

Metzger further contends that the criminal penalties imposed forviolation of the Personnel Code are inadequate to ensure compliance withthe statute and that this court should, therefore, imply a private right ofaction. Violation of the Personnel Code is a Class B misdemeanor and ispunishable by a $1,500 fine and imprisonment for no more than sixmonths. 730 ILCS 5/5-9-1(3) (West 2002); 730 ILCS 5/5-8-3(2)(West 2002). Metzger argues that these penalties are minimal and serveas only a minor deterrent. The purpose of the criminal penalties is not tocompensate employees, but to assure compliance with the PersonnelCode. Here, criminal penalties are but one of the enforcement mechanismsprovided by the legislature. One who violates the Personnel Code mayalso be subject to demotion, suspension, or discharge. See 20 ILCS415/8b.15, 8b.16, 11 (West 2002). Accordingly, we disagree withMetzger that a private right of action must be implied to ensure compliancewith the statute.

The legislature has provided a statutory framework to encouragereporting of Personnel Code violations and to punish retaliatory actionagainst state employees. The legislature could have granted stateemployees a private action for damages, but it did not do so. We cannotsay that the statutory framework of the Personnel Code is so deficient thatit is necessary to imply a private right of action for employees to effectuateits purpose. See Fisher, 188 Ill. 2d at 467.

The Personnel Code provides a comprehensive statutory scheme forredress of Metzger's type of injury. The Personnel Code's statutoryscheme demonstrates that no implied private right of action was intendedby the legislature. The Personnel Code provides that a state employeealleging retaliatory action in the form of discharge, demotion, or suspensionmay appeal to the Commission. See 20 ILCS 415/11 (West 2002). ThePersonnel Code further provides for judicial review of the Commission'sdecision pursuant to the Administrative Review Law. 20 ILCS 415/10(6),11a (West 2002). Where the statute creating or conferring power on anadministrative agency expressly adopts the Administrative Review Law,a circuit court has no authority to entertain an independent action. Dubinv. Personnel Board, 128 Ill. 2d 490, 497-98 (1989). Given that thePersonnel Code provides for administrative remedies, we conclude thatthe legislature intended the Administrative Review Law to be the exclusiveremedy under the Code in cases of retaliatory action involving discharge,demotion, or suspension. See, e.g., Massachusetts Mutual LifeInsurance Co. v. Russell, 473 U.S. 134, 147, 87 L. Ed. 2d 96, 107, 105S. Ct. 3085, 3093 (1985) (" 'The presumption that a [private] remedywas deliberately omitted from a statute is strongest when Congress hasenacted a comprehensive legislative scheme including an integrated systemof procedures for enforcement' "), quoting Northwest Airlines, Inc. v.Transport Workers Union of America, 451 U.S. 77, 97, 67 L. Ed. 2d750, 767, 101 S. Ct. 1571, 1583-84 (1981). The legislature intended theAdministrative Review Law to be the exclusive remedy under thePersonnel Code in cases of retaliatory action by discharge, demotion, orsuspension. Thus, in providing that the Administrative Review Law isapplicable, the legislature has demonstrated its intent that no private rightof action be employed for discharge, demotion, or suspension.

Where, as in Metzger's case, the alleged retaliatory conduct does notinvolve discharge, demotion, or suspension, section 16 of the PersonnelCode authorizes the Director to institute and maintain any action orproceedings to secure compliance with the Personnel Code, and, pursuantto that authorization, the Department of Central Management Servicesregulations provide that an employee may file a grievance with theDirector. 20 ILCS 415/16 (West 2002); 80 Ill. Adm. Code