DSW employee fired for calling police has cause of action under Illinois Whistleblower Statute. - Mark P. Loftus
I saw an interesting employment law opinion come out of the Northern District of Illinois last week. Melissa Coffey was an assistant Store Manager for the Skokie DSW Shoe Store. DSW has an interesting policy when it comes to possible shoplifiting – called the Shoplifting and No-Apprehension Policy[“the Policy”]. According to the policy under no circumstances is law enforcement, mall security or any other third party to be called in the event of a possible shoplifting incident. Seems like a rather odd policy for a high volume retail business, but that is their business.
In any event, while at work on August 29, 2009, Melissa was approached by a co-worker. The co-worker told Melissa that three or four female “shoppers” that the co-worker thought had previously stolen shoes were back in the store. Melissa eyeballed the three or four “shoppers” and noticed that they weren’t really looking at shoes but instead were keeping a close eye on employees. Additionally, Melissa saw a running car parked directly outside. Based upon her co-worker’s remarks and her personal observation, Melissa grabbed a store walkie-talkie[huh??] and announced “I think we’re going to call the police”. Melissa herself did not call. Another co-worker then called the police. Of course by the time police arrived the shoppers had disappeared. No one was arrested. That same night Melissa informed the District Manager that she had called the police. A couple of days later, Melissa was fired.
Melissa sued DSW alleging violations of the Illlinois Whistleblower Act [“IWA”] ,740 ILCS 174/15. The IWA prohibits employers from retaliating against employees for disclosing information to the police where the employee has reasonable grounds to believe that the information involves a violation of law.
DSW, for its part, tried to get the case tossed on a couple of fronts. First, DSW asserted, that the IWA only protects the person who actually called the police. The Trial Court[Judge Rebecca Pallmeyer]saw through that argument right through that. The law is quite clear that whether the plaintiff reported directly to the Police, or reported through another person doesn’t matter. Additionally, DSW argued it couldn’t be liable under the IWA because the alleged violations involved actions of third parties[the suspected shoplifters] and not any DSW personnel. Again Judge Pallmeyer did her homework and checked the legislative history behind the IWA. She correctedly concluded that the language of the IWA does not limit protection only to persons who blow the whistle on their employer.
Finally, DSW argued that since no one was arrested, no crime was commited and Melissa was simply wrong to assume shoplifting. Judge Pallmeyer’s opinion however, noted that Melissa wasn’t required to prove that she a crime was committed. She only had to prove that she had reasonable grounds for suspicion. And given her co-worker’s remarks, the behavior of the shoppers and the running car, Melissa reasonably believed the law had been violated. Judgment entered for plaintiff on the IWA.
All that being said, the most burning question was never addressed – why does DSW still use walkie-talkies??
