A whistleblower who accused the Drake Hotel of retaliation following her allegations it tried to sidestep Gov. Pritzker's COVID capacity restrictions will be allowed to continue her federal lawsuit.
Gina Sharenow booked weddings at the Drake while working as a sales manager. Her lawsuit accused First Hospitality Group, Hospitality Staffing and The Drake Oak Brook Resort of counting distinct rooms as separate venues to avoid a state policy limiting indoor facilities to 50 people in order to mitigate spread of coronavirus.
According to Sharenow, in August 2020 the Illinois Department of Commerce and Economic Opportunity, joining with the Illinois Department of Public Health, issued new guidelines explicitly addressing that strategy, to reinforce executive orders issued by Gov. JB Pritzker. But she alleged Drake management pressed her to ignore that guidance. When she refused to book weddings in excess of the capacity limit, she lost her job, leading to her to seek damages for retaliatory discharge.
David Fish
| Fish Potter Bolanos
In an opinion issued July 13, U.S. District Judge John Tharp denied the hotel group’s motion to dismiss.
According to Tharp, “the defendants’ principal contention” is the DCEO guidelines aren’t a “law, rule or regulation” or “clearly mandated public policy” as detailed in the Illinois Whistleblower Act and common law principles. They also argued the National Labor Relations Act pre-empted Sharenow’s claims.
“The guidelines, however, need not embody laws, rules or regulations themselves,” Tharp wrote. “All that matters at this stage is whether Ms. Sharenow has plausibly alleged that violation of the guidelines ‘would result in a violation of a state or federal law, rule or regulation.’ She has.”
Tharp said the Illinois Department of Public Health Act and the Illinois Emergency Management Act provided the statutory authority for the guidelines Sharenow accused her employer of violating. Because Pritzker issued a disaster proclamation in response to Covid-19, he and the IDPH could issue rules outside the dictates of the Illinois Administrative Procedure Act, the judge said.
Along with several existing opinions establishing the validity of executive orders as rules under the Whistleblower Act, Tharp said Executive Order 43, from June 6, 2020, contains an enforcement provision specifically citing that law “to signal, emphatically, that retaliation based on the order falls within the Act’s ambit.”
Tharp also noted that Illinois law allows employers to fire at-will workers without a reason. But a narrow exception bars retaliatory termination when the discharge violates clearly mandated public policy. Although Tharp said “there is no precise definition for what constitutes a clearly mandated public policy,” he explained the policy Sharenow invoked in her allegations “cannot be clearer” and noted “at least three other courts have reached the same conclusion.”
The hotel defendants argued the DCEO guidelines were “shifting” because of the August 2020 update. But Tharp explained both the executive order and guidelines “tailored quantifiable restriction to specific businesses and industries.”
Turning to arguments about the National Labor Relations Act, Tharp said dismissal on pre-emption as an affirmative defense is inappropriate in this instance. Although Sharenow filed a National Labor Relations Board complaint after losing her job, that didn’t mean she could only seek relief under federal law.
For one thing, Tharp said, Sharenow didn’t include the NLRB complaint in her lawsuit. Secondly, Sharenow withdrew the charge about two months after filing, meaning “any factual allegations within it are not binding,” Tharp wrote. “Sharenow has not pled herself out of court and her complaint is otherwise sufficient.”
The hotel tried to argue Sharenow’s actions were designed to protect work colleagues, but Tharp said her complaint only alleges an attempt to comply with state law. He also said her decision to follow state law wasn’t “concerted activity” as the NRLA establishes.
Tharp set a status hearing for July 21.
Sharenow is represented in the action by attorneys David J. Fish and Thalia Pacheco, of the firm of Fish Potter Bolaños, of Naperville.
The Drake defendants are represented by attorney William F. Dugan, of the firm of Baker & McKenzie, of Chicago.