NOTICE 2014 IL App (5th) 130319 Decision filed 11/05/14. The text of this decision may be NO. 5-13-0319 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
CINDY FLICK, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Jackson County. ) v. ) No. 06-L-8 ) SOUTHERN ILLINOIS HEALTHCARE, NFP, ) d/b/a Southern Illinois Hospital Services, Inc., ) Honorable ) Christy Solverson, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Cindy Flick, worked for the defendant, Southern Illinois Healthcare,
NFP, as the director of its medical laboratories. Shortly after raising concerns about one
laboratory's compliance with federal regulations, the plaintiff was presented with a
severance agreement. She chose not to resign, and her supervisor did not terminate her
employment at that time. Two years later, however, the plaintiff was again presented
with a severance agreement. This time, she was terminated after refusing to accept the
agreement. The plaintiff filed a suit alleging retaliatory discharge. The court granted the
defendant's motion for summary judgment, finding that the plaintiff failed to present any 1 evidence to establish a causal connection between her raising concerns and her
termination. The primary basis for the court's ruling was a gap of nearly two years
between the time she raised those concerns and the time she was fired. The plaintiff
appeals, arguing that genuine issues of material fact remained regarding the causation
issue. We affirm.
¶2 The defendant operates three hospitals in southern Illinois. The plaintiff was hired
as the manager of the medical laboratory at one of those hospitals in 2000. In 2001, she
was promoted to the position of director of laboratories. In her deposition, the plaintiff
explained that she approached her supervisor, Memorial Hospital administrator George
Maroney, and suggested ways to consolidate some of the functions of the three labs that
would make their operation more efficient. Maroney told her to write up a job
description for a new position which would be responsible for implementing the
plaintiff's suggestions for consolidation. She did so, and Maroney promoted her to the
new position. This promotion came with a "substantial" pay increase.
¶3 In her role as director of laboratories, the plaintiff continued to manage the
laboratory at Memorial Hospital; in addition, she oversaw some of the functions of the
laboratories at the defendant's other hospitals–Herrin and St. Joseph. However, she did
not have direct supervisory authority over the employees of the Herrin and St. Joseph
labs; instead, she oversaw their operations in what she described as a "consulting role."
As a result of the consolidations of operations the plaintiff recommended, the
responsibility and authority of the lab managers at Herrin Hospital and St. Joseph
Hospital decreased. 2 ¶4 In July 2003, the plaintiff discovered quality control failures in the chemistry
department at Herrin Hospital's lab. According to the plaintiff, this situation amounted to
a violation of the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA)
(42 U.S.C. § 263a et seq. (2000)). She reported her concerns to Dr. Padmalatha, the
medical director of the Herrin Hospital lab, and Al Green, the manager of the lab. In
August 2003, she presented a corrective action plan to Green to address the quality
control issues. The plaintiff did not believe Green was taking appropriate actions to fix
the problem. Therefore, she presented her concerns to Maroney and Rebecca Ashton, the
administrator of Herrin Hospital, who was Green's direct supervisor. According to the
plaintiff, she discussed the matter with Dr. Padmalatha, who agreed that corrective
measures needed to be taken.
¶5 On November 10, 2003, Maroney called the plaintiff into his office. He told her
that her management style was not conducive to a long-term relationship with the
hospital and presented her with a severance agreement. Two days later, on November 12,
the plaintiff called the defendant's compliance help line to report her concerns regarding
possible CLIA violations in the Herrin Hospital laboratory. On November 18, the
plaintiff once again met with Maroney. She told him that she did not wish to accept the
severance agreement. Maroney did not terminate the plaintiff's employment at this time;
however, he did limit her responsibilities as director of laboratories. Specifically, he told
her that she was to have no role in the operation of the Herrin Hospital lab. According to
the defendant, Maroney told the plaintiff that as a result of this limit on her
responsibilities, the plaintiff's salary would be frozen and she would be ineligible for 3 annual raises. This was because the salary increase she received when she was promoted
to director of laboratories was based on her oversight of all three labs.
¶6 As a result of the plaintiff's call to the compliance help line, compliance officer
Christie Connelly conducted an investigation of her claims. Connelly found no CLIA
violations, but did find violations of the defendant's own internal policies, for which
corrective measures were necessary. Connelly's report was issued in May 2004.
¶7 In the fall of 2004, the defendant began the process of converting to a new
computer system, called Meditech. The first department scheduled to make the
conversion was the labs. The plaintiff, as Memorial Hospital's lab manager, was
responsible for seeing that lab personnel did all they needed to do to make the transition
to the new system smoothly. This included scheduling training and testing sessions.
¶8 The labs switched to the Meditech system in September 2005. The transition did
not go smoothly, and the lab at Memorial Hospital encountered significantly more
problems than the labs at Herrin and St. Joseph. According to the defendant's vice
president of information technology, most of the problems could have been avoided had
the Memorial lab employees spent more time testing the system before the conversion.
¶9 On October 12, 2005, Maroney once again offered the plaintiff a severance
package. She again declined. This time, Maroney terminated her employment. He told
her that the reason for her termination was her role in the problems with the conversion
to the Meditech system.
¶ 10 In February 2006, the plaintiff filed a petition alleging that she was discharged in
retaliation for reporting possible violations of CLIA. In an amended complaint, she 4 alleged, "After the attempt to terminate plaintiff's employment in November 2003,
plaintiff experienced a hostile and retaliatory work environment." As an example, she
alleged that prior to November 2003, her performance reviews were all favorable and she
received annual pay increases, but after the "attempt to terminate" her employment, she
received "much less favorable" evaluations and no pay raises. She further alleged that
she was told the reason for her termination was problems with the switch to Meditech
even though she had a limited role in the conversion to that system. She alleged that
staffing shortages made it difficult for her to schedule sufficient training and testing
sessions for her employees.
¶ 11 In a deposition, the plaintiff acknowledged that her employment with the
defendant was at-will. Asked if she was aware of any complaints regarding her
management style prior to November 2003, she replied that Maroney told her, "Slow
down, you know, you're moving too fast, too many changes." She further testified that
she was not aware of any other specific complaints about her management style. She
acknowledged, however, that Dr. Padmalatha provided a February 2003 performance
evaluation of the plaintiff in which she noted that the plaintiff was too quick to make
changes and did not discipline employees equally. The plaintiff further acknowledged
that Dr. Padmalatha raised similar concerns in 2005.
¶ 12 The plaintiff was asked if she took any action with regard to the quality control
issues at the Herrin Hospital lab after January 2004. She stated that she may have spoken
to Christie Connelly, the defendant's compliance officer, a few times, but was otherwise
not involved with the Herrin lab after November 2003. 5 ¶ 13 The plaintiff was then asked to explain her belief that her termination was related
to raising her concerns regarding the quality control issues at Herrin Hospital. She
replied, "The circumstantial evidence of the escalating reports, the perfect evaluations
prior, the poor evaluations later, the retaliatory treatment that I endured for the following
two years." As examples of this retaliatory treatment, the plaintiff pointed to the freeze
on her salary and a memorandum questioning her veracity, which she alleged was sent to
multiple recipients.
¶ 14 The plaintiff testified that she believed that the only reason Maroney did not fire
her after she declined the severance agreement in November 2003 was her report to the
CLIA compliance hotline. She explained: "I can tell you–it's my assumption that that
was absolutely not his decision to let me continue to work. He was told by higher-ups in
the organization that *** 'This is too much of a hot potato. You do not touch it now.' "
She admitted, however, that she had no evidence to support this assumption.
¶ 15 The defendant put forth evidence of specific actions on the part of the plaintiff that
contributed to the problems at the Memorial Hospital lab. Specifically, the plaintiff and
members of her staff attended a training session that was scheduled to take place over a
period of 4½ days, but the plaintiff left after only 2 days and took the other staff members
with her. The plaintiff admitted that this occurred, but stated that she attended the
portions of the training session that were relevant for her. In addition, the plaintiff
appointed Ryan Jones, a unit supervisor in the Memorial Hospital lab, to be the "point
person" in charge of the conversion project for the lab. When Jones left to become the
lab manager at St. Joseph Hospital, the plaintiff did not appoint anyone to take his place. 6 Maroney admitted in his deposition that the plaintiff was not the only person to blame for
the problems in the transition to Meditech; he also found fault with the defendant's
information technology department and the vendor of the software.
¶ 16 The defendant filed a motion for summary judgment, arguing that it was entitled to
judgment as a matter of law because the plaintiff presented no evidence of a causal
connection between her actions in raising concerns about the Herrin Hospital lab's
compliance with CLIA and her termination.
¶ 17 The court granted the motion in a detailed written order entered May 20, 2013.
The court first found that the plaintiff had to demonstrate that her discharge was in
retaliation for the exercise of a statutory or constitutional right and that the defendant's
conduct was motivated by unlawful considerations in contravention of public policy.
¶ 18 The court found that the plaintiff exercised a statutory right when she called the
defendant's CLIA compliance hotline. However, the court found that the plaintiff could
not establish that her discharge was in retaliation for exercising this right because of the
timing. The court explained that the plaintiff was first presented with a severance
agreement before she called the hotline. The court then noted that the plaintiff was not
fired until nearly two years after she called the hotline. The court pointed out that
"numerous cases" hold that a significant gap in time breaks the causal connection a
plaintiff is required to prove. See, e.g., Ramirez v. Runyon, 971 F. Supp. 363 (C.D. Ill.
1997); Juarez v. Ameritech Mobile Communications, Inc., 746 F. Supp. 798 (N.D. Ill.
1990); Maldonado v. Metra, 743 F. Supp. 563 (N.D. Ill. 1990). The court therefore
entered judgment in favor of the defendant. This appeal followed. 7 ¶ 19 In order to support a claim for retaliatory discharge under Illinois law, a plaintiff
must demonstrate that (1) she was discharged from her job, (2) the discharge was in
retaliation for her activities, and (3) the discharge violates a clearly mandated public
policy of this state. Mackie v. Vaughan Chapter–Paralyzed Veterans of America, Inc.,
354 Ill. App. 3d 731, 734 (2004); Stebbings v. University of Chicago, 312 Ill. App. 3d
360, 365 (2000). The term "clearly mandated public policy" has "no precise definition."
Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130 (1981). However, our
supreme court has held that "public policy concerns what is right and just and what
affects the citizens of the State collectively." Palmateer, 85 Ill. 2d at 130. In addition,
the court has held that what is "clearly mandated" as public policy "is to be found in the
State's constitution and statutes and, when they are silent, in its judicial decisions."
Palmateer, 85 Ill. 2d at 130.
¶ 20 Claims of retaliatory discharge have been recognized in instances where an
employee has been discharged in retaliation for filing a workers' compensation claim,
reporting illegal or improper conduct, or refusing to work in conditions that are hazardous
or violate federal safety standards. Mackie, 354 Ill. App. 3d at 734. Reporting illegal or
improper conduct is protected regardless of whether the conduct is alleged to violate state
or federal law. It is also protected regardless of whether the improper conduct is reported
to authorities within the company or to outside authorities. Stebbings, 312 Ill. App. 3d at
372. Retaliatory discharge is an exception to the rule that an "at-will" employee can be
discharged with or without cause. Mackie, 354 Ill. App. 3d at 733. As such, it is a
"limited and narrow cause of action." Mackie, 354 Ill. App. 3d at 733-34. 8 ¶ 21 Summary judgment is only proper where the pleadings, depositions, and affidavits
in the record show that there are no genuine issues of material fact to be resolved and the
moving party is entitled to judgment as a matter of law. Thompson v. Gordon, 241 Ill. 2d
428, 438 (2011). In determining whether genuine issues of material fact remain that
would preclude summary judgment, courts must view the factual record in the light most
favorable to the nonmoving party. United National Insurance Co. v. Faure Brothers
Corp., 409 Ill. App. 3d 711, 716 (2011). Summary judgment is a drastic remedy which is
not appropriate unless the moving party's right to judgment is "clear and free from
doubt." (Internal quotation marks omitted.) United National Insurance Co., 409 Ill. App.
3d at 716. However, mere speculation or conjecture is not sufficient to defeat a motion
for summary judgment. Trigsted v. Chicago Transit Authority, 2013 IL App (1st)
122468, ¶ 49. On appeal, we review the trial court's determination de novo. United
National Insurance Co., 409 Ill. App. 3d at 716.
¶ 22 The plaintiff first argues that the court erred in finding that she did not engage in
"protected activity" until she called the compliance help line to report possible CLIA
violations two days after Maroney presented her with the first severance agreement. She
argues that voicing her concerns about the lab's procedures prior to the meeting at which
she was offered a severance agreement was also "protected activity." We agree. As
previously noted, Illinois courts have specifically recognized claims of retaliatory
discharge where employees have been discharged for reporting improper conduct,
including violations of federal laws or regulations. Mackie, 354 Ill. App. 3d at 734; see
also Stebbings, 312 Ill. App. 3d at 372. We find no meaningful distinction between the 9 plaintiff's actions in raising the issue with Green, Maroney, and Dr. Padmalatha and her
subsequent call to the compliance help line. Thus, if the plaintiff could establish that she
was discharged in retaliation for raising those concerns prior to calling the help line, such
a discharge would violate public policy. However, this conclusion does not help the
plaintiff because we agree with the trial court and the defendant that she failed to provide
any evidence of a causal connection.
¶ 23 The plaintiff argues that the court erred in finding that there were no genuine
issues of material fact regarding causation based on the fact that nearly two years elapsed
between her efforts to call attention to the quality control problems at Herrin Hospital and
her termination. She correctly notes that causation is ordinarily a question of fact for a
jury to determine. See Vorpagel v. Maxell Corp. of America, 333 Ill. App. 3d 51, 56
(2002) (citing Diehl v. Polo Cooperative Ass'n, 328 Ill. App. 3d 576, 582 (2002)). She
argues that, contrary to the trial court's ruling, significant gaps in time between a
plaintiff's activity and termination do not automatically defeat a claim that the
termination was retaliatory. Her argument accurately states the law. See Vorpagel, 333
Ill. App. 3d at 57. However, to survive a motion for summary judgment, a plaintiff must
present some evidence of a causal connection. For the reasons that follow, we find that
the plaintiff here has failed to do so.
¶ 24 In order to understand the plaintiff's arguments, we find it useful to discuss the
role that timing plays in establishing a causal connection. We note that few Illinois
courts have addressed this question. As such, the trial court relied on federal decisions,
and the defendant likewise cites to federal cases. Although there are differences between 10 a common law action for retaliatory discharge under Illinois law and a statutory claim of
retaliation under federal law, both causes of action require proof of a causal connection.
See Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill. 2d 433, 443 (1994);
McKenzie v. Illinois Department of Transportation, 92 F.3d 473, 483 (7th Cir. 1996). As
such, federal cases addressing that issue are relevant and instructive.
¶ 25 Federal courts have found that a close temporal nexus between the plaintiff's
protected activity and the alleged retaliation constitutes circumstantial evidence that can
lead to an inference of a retaliatory motive. See, e.g., McKenzie, 92 F.3d at 484 (finding
that a plaintiff made a prima facie showing of a retaliatory motive where the alleged
retaliatory act of her employer "occurred within days" after the plaintiff filed an
administrative charge); Wirey v. Richland Community College, 913 F. Supp. 2d 633, 649
(C.D. Ill. 2012) (quoting Lang v. Illinois Department of Children & Family Services, 361
F.3d 416, 419 (7th Cir. 2004)); Ramirez, 971 F. Supp. at 367 (quoting McClendon v.
Indiana Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997)). However, close timing is
usually not enough to establish a causal connection standing alone. Oest v. Illinois
Department of Corrections, 240 F.3d 605, 616 (7th Cir. 2001).
¶ 26 By contrast, federal courts have found that gaps of even a few months between the
employee's protected activity and the employer's challenged action will generally defeat
an inference of a retaliatory motive. See, e.g., Leonard v. Eastern Illinois University, 606
F.3d 428, 432 (7th Cir. 2010) (holding that a six-month gap between the plaintiff's civil
rights complaint and his discharge was "too long to infer a link between the two"); Oest,
240 F.3d at 616 (finding a gap of eight months "too attenuated to support a jury verdict of 11 retaliation"); Wirey, 913 F. Supp. 2d at 649 (finding a gap of 2½ months too long "to
circumstantially establish a causal link"); Ramirez, 971 F. Supp. at 367 (explaining that
"as the temporal distance between the two events increases, the likelihood of a casual
[sic] link decreases"). However, even with long intervals, federal courts have allowed
retaliation claims where other evidence supported the causal link. Oest, 240 F.3d at 616.
¶ 27 The plaintiff cites Netzel v. United Parcel Service, Inc., 181 Ill. App. 3d 808
(1989), in support of her contention that "the passage of time *** cannot be allowed to
insulate an employer from liability for retaliatory discharge." Netzel, 181 Ill. App. 3d at
813. We believe her argument takes this language from Netzel out of context, and we
find the case inapposite to the circumstances of the case before us.
¶ 28 The plaintiff in Netzel was a driver for United Parcel Service (UPS). He injured
his knee in a work-related accident and filed a claim under the Workmen's Compensation
Act. Netzel, 181 Ill. App. 3d at 811. The plaintiff attempted to return to work three
different times, but on each occasion, he was unable to continue his route due to pain and
swelling in his knee. On the day he made his third attempt to return to work, he was
discharged. Netzel, 181 Ill. App. 3d at 811. This was more than a year after he filed his
initial claim for workers' compensation benefits. Netzel, 181 Ill. App. 3d at 811.
¶ 29 The plaintiff filed a retaliatory discharge suit, and the jury returned a verdict in his
favor. However, the trial court granted UPS's motion for a new trial, finding that there
was no causal link between the plaintiff's claim for workers' compensation benefits and
his discharge because he was discharged more than one year after he filed his claim.
Netzel, 181 Ill. App. 3d at 811. 12 ¶ 30 The appellate court reversed that ruling, finding that the jury reasonably inferred a
causal link from the evidence before it. Netzel, 181 Ill. App. 3d at 813. First and
foremost, the Netzel court found that "the trial court erred in focusing on the filing of the
claim as the action in retaliation against which plaintiff was discharged." Netzel, 181 Ill.
App. 3d at 813. The court explained that this was because the plaintiff's right to receive
workers' compensation benefits "for as long as he was unable to work *** deserves
protection." Netzel, 181 Ill. App. 3d at 813. It was for this reason that the court found
that "the passage of time from the date of filing a claim" could not insulate UPS from
liability. Netzel, 181 Ill. App. 3d at 813. In other words, the plaintiff in Netzel engaged
in protected activity up to and including the day he was discharged.
¶ 31 Furthermore, the Netzel court found additional evidence to support the jury's
verdict. The UPS manager who fired the plaintiff accused the plaintiff of feigning his
injuries, which the jury could reasonably interpret as "displeasure with plaintiff's
prolonged exercise of his statutory rights." Netzel, 181 Ill. App. 3d at 813-14. In
addition, there was testimony that a UPS driver could not be fired unless he had received
" 'a lot of write-ups.' " Netzel, 181 Ill. App. 3d at 815. This testimony could explain why
UPS did not fire the plaintiff soon after he filed his claim.
¶ 32 Here, the plaintiff began raising concerns about the quality control at the Herrin
Hospital lab in July 2003. An investigation into the matter was concluded in May 2004.
In her deposition, the plaintiff admitted that she "may have" discussed the alleged CLIA
violations during the investigation, but she did not make any other efforts to report any
violations after November 2003. In her brief, she essentially concedes that her "final 13 action" related to the possible CLIA violations came on November 4, 2003. She was not
discharged until October 2005. Thus, unlike the plaintiff in Netzel, the plaintiff here was
not engaging in protected activity up until the date she was discharged. The gap in time
was too long to support an inference of a retaliatory motive.
¶ 33 The plaintiff admits in her brief that "it would be difficult, if not impossible," for
her to establish a causal connection without what she calls "the first attempt" to discharge
her in November 2003. As we discussed earlier, however, there is nothing in the record
to support the plaintiff's conclusory allegation that Maroney's "first attempt" to fire her
was thwarted by her call to the compliance help line. Indeed, the plaintiff admitted in her
deposition that she had no evidence to support her assumption. Maroney explained that
he retained the plaintiff because he believed she had enough talent to fix the problems in
her management style. The documentary evidence in the record bears this out. The
plaintiff's performance evaluations, both before and after she voiced her concerns
regarding quality control issues in the Herrin Hospital lab, consistently noted that her
business and technical skills met or exceeded standards, but that her management style
created problems. Specifically, her evaluations stated that she created friction by failing
to keep physicians in the loop, trying to make changes too quickly, and failing to treat
employees equally. The plaintiff acknowledged that both Maroney and Dr. Padmalatha
raised these concerns throughout her employment.
¶ 34 The plaintiff points to what she calls evidence of a "retaliatory environment" that
began when Maroney first offered her a severance agreement in November 2003 and
continued for the duration of her employment. As noted, she relies heavily on the salary 14 freeze and her performance evaluations. Neither of these things is actionable in its own
right, and the plaintiff does not contend otherwise. See Graham v. Commonwealth
Edison Co., 318 Ill. App. 3d 736, 742 (2000) (explaining that the "tort of retaliatory
discharge does not encompass any behavior other than actual termination of
employment"). She does, however, argue that the treatment she received constitutes
evidence of a retaliatory motive sufficient to preclude summary judgment. We disagree.
¶ 35 It is true, as the plaintiff points out, that her performance evaluations prior to
November 2003 were better than the evaluations she received after that time. Although
the comments on the evaluations were similar, her overall numerical scores prior to
November 2003 were in the mid to upper 90s, while the numerical scores subsequently
were in the low 70s. However, as we have already discussed at length, both Maroney and
Dr. Padmalatha expressed concern about the plaintiff's managing style all along. In each
of the evaluations Maroney prepared after November 2003, he noted that the plaintiff had
made some improvement in that area, but the improvement was not sufficient. This
supports Maroney's testimony that he retained the plaintiff in 2003 because he believed
she had the talent to fix her shortcomings, and the plaintiff has not provided any evidence
to the contrary.
¶ 36 Significantly, the plaintiff has presented no evidence to support her theory that
Maroney was prevented from discharging her in 2003 and, therefore, needed to wage a
two-year campaign of retaliatory actions in order to discharge her in October 2005. She
acknowledged in her deposition that her employment with the defendant was at-will.
Unlike the record in Netzel, the record here contains no evidence that the defendant had 15 to document ongoing dissatisfaction in order to terminate her employment. In short,
there is nothing in the record to explain away the fact that Maroney retained the plaintiff
for a significant period of time after she voiced her concerns about possible CLIA
violations and no other evidence to support an inference of a retaliatory motive. Because
it was the plaintiff's burden to provide evidence of this causal link, we conclude that the
court properly granted summary judgment.
¶ 37 For the foregoing reasons, we affirm the trial court's order granting summary
judgment in favor of the defendant.
¶ 38 Affirmed.
16 2014 IL App (5th) 130319
NO. 5-13-0319
IN THE
FIFTH DISTRICT
CINDY FLICK, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Jackson County. ) v. ) No. 06-L-8 ) SOUTHERN ILLINOIS HEALTHCARE, NFP, ) d/b/a Southern Illinois Hospital Services, Inc., ) Honorable ) Christy Solverson, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
Opinion Filed: November 5, 2014 ________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Richard P. Goldenhersh, J., and Honorable Judy L. Cates, J., Concur ________________________________________________________________________
Attorney L. Douglas Gill, Hughes Law Firm, 1317 West Main Street, for Carbondale, IL 62901-2227 Appellant ________________________________________________________________________
Attorney Shari R. Rhode, Rhode & Jackson, P.C., 1405 West Main Street, for P.O. Box 99, Carbondale, IL 62901 Appellee ________________________________________________________________________