Scott Holland Nov. 2, 2015, 11:41am

A federal judge has sided with an assistant manager who lost her job at a shoe store after she called police to curb a potential shoplifting incident in progress, ruling the woman can proceed with a lawsuit against her former employer for allegedly violating Illinois’ whistleblower law.

In an opinion issued Oct. 29 in federal court in Chicago, U.S. District Judge Rebecca R. Pallmeyer ruled in favor of Melissa Coffey in her lawsuit against Discount Shoe Warehouse, or DSW.

Coffey was an assistant store manager for DSW’s Skokie store from May 3 to Sept. 2, 2009. Her termination came just five days after she called police to report customers she suspected of shoplifting. The company said it fired her because of its policy prohibiting employees of her position from calling law enforcement agencies.

Both parties filed for summary judgment in the case. Coffey said termination for the stated cause violates the Illinois Whistleblower Act, while DSW argues the Act is not applicable because it protects only workers who report an employer’s misdeeds, not a third party. Further, DSW argued, Coffey “failed to mitigate her damages by diligently seeking a new job.”

DSW has a “Shoplifting and No-Apprehension Policy” that effectively calls on all store employees to contact a company regional loss protection manager for authorization to call police or mall security. They are allowed to provide one-on-one attention to customers suspected of attempting to shoplift. There is a zero-tolerance policy for employee violations of the policy.

Although Coffey admitted violating the policy during her shift Aug. 28, 2009, she denies being told of the policy before that day and noted it wasn’t part of her “employee handbook or distributed to each new employee, nor is it included in the ‘checklist’ given to store managers of necessary paperwork for new employees to review upon their hiring.” A copy of the policy is available at every DSW store.

On Aug. 28, a colleague told Coffey certain female customers suspected of shoplifting from the store five days earlier had returned to the store, and were walking around the store talking on cell phones, while watching employees, rather than browsing the merchandise. Coffey also noticed a running car parked just outside the store. She then “made an executive decision to call the police,” although a different employee actually made the call after Coffey announced over a walkie-talkie she believed employees should do so.

All but one suspect fled before police arrived. Police questioned the woman, but made no arrest. Coffee emailed her district manager to report the details of the incident. On Aug. 31, another DSW employee emailed the general manager to say the woman police had questioned on Aug. 28 had contacted DSW customer service to express dismay Coffey hadn’t apologized for calling police. The general manager then fired Coffey Sept. 2, 2009.

In siding with Coffey, Pallmeyer wrote she “sees no ambiguity in the statutory language. The IWA bars retaliation against any person who provides information to law enforcement so long as that person ‘has reasonable cause to believe that the information discloses a violation.’”

Coffey’s claim is aided by lawmakers’ decision not to specify the employer as the source of the violation being reported, the judge indicated.

DSW also tried to argue Coffey’s beliefs about the shoppers were unreasonable. Pallmeyer said Coffey’s reliance on her colleague’s “narrative appears to have been reasonable,” and that it also was reasonable the women might shoplift again.

Some Illinois courts, she noted, have applied IWA protections for employees fired for reporting the actions of their co-workers, not the employer.

As to the claim Coffey failed to diligently seek new employment, Pallmeyer notes DSW “made no effort to rebut” Coffey’s testimony about her job searching, evidence the judge found satisfactory.

Coffey was represented in the action by the firms of Caffarelli & Associates and The Siegel Law Group, each of Chicago.

DSW was represented by Seyfarth Shaw, of Chicago.

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Organizations in this Story

Caffarelli & Associates Ltd.
224 South Michigan Avenue
Chicago, IL 60604

Seyfarth Shaw LLP
131 S Dearborn St
Chicago, IL 60603

Siegel Law Group Ltd
150 North Upper Wacker Drive
Chicago, IL 60606

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