ILLINOIS WHISTLEBLOWER STATUTE REQUIRES AN ACTUAL REFUSAL TO PARTICIPATE IN ILLEGAL ACTIVITY - COMPLAINTS TO THE BOSS NOT ENOUGH - Mark P. Loftus

The Illinois Appellate Court recently handed down an interesting decision setting forth what is expected of a plaintiff seeking to assert a claim under The Illinois Whistleblower Act[“the Act”]. In Sardiga v. The Northern Trust Company , Darren Sardiga was terminated from his Vice President position with Northern Trust on January 3, 2005 – less than a year after he had been hired. Sardiga filed suit, claiming that his termination violated the Act. Specifically, Sardiga alleged that because he had refused to participate in certain procedures at the bank, he got canned. Northern Trust filed a Motion for Summary Judgment, insisting that Sardiga never actually refused to participate in an allegedly illegal activity, which was required by the Act. The trial court granted the motion and Sardiga appealed.
The Appellate Court decision sets out the facts pretty well. Mr. Sardiga had issues with several Northern Trust protocols and client procedures. He repeatedly complained to his boss about the procedures. Sardiga never went beyond his supervisor when he made the complaints. In late 2004, Sardiga threatened to bring certain complaints regarding how Northern Trust sold securities to what was then known as the National Association of Securities Dealers [now known as Financial Industry Regulatory Authority or “FINRA”]]but apparently never actually did so.
The Appellate Court then noted that under the Act, an employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule or regulation In order to sustain a cause of action under this portion of the Whistleblower Act, plaintiff must demonstrate: 1) he refused to participate in an activity that would lead to a violation of a law and 2) the employer then retaliated against the employee because of that refusal. The parties differed about what “refusing to participate” actually meant. Sardiga argued that his continuous complaints to his supervisor were sufficient, while Northern Trust insisted an actual refusal to participate in a questionable activity was required. The Appellate Court agreed with the bank and held “refusal to participate” means exactly that – plaintiff must present proof he actually refused to participate in the activity. Complaints, even regular, on-going complaints will not be sufficient. The trial court’s decision was affirmed.