2024 IL App (1st) 230758-U
No. 1-23-0758
Order filed June 14, 2024
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
AEKTA PATEL, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 20 L 9842 ) COOK COUNTY HEALTH AND HOSPITAL ) Honorable SYSTEMS (CCHHS), ) Mary Colleen Roberts, ) Judge, presiding. Defendant-Appellee. )
PRESIDING JUSTICE MITCHELL delivered the judgment of the court. Justice Lyle and Justice Navarro concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order granting defendant’s motion for summary judgment is affirmed in part and reversed in part where there is a genuine issue of material fact regarding plaintiff’s claim under section 15 of the Whistleblower Act, but plaintiff’s claim under section 20 of the Act fails as a matter of law.
¶2 Plaintiff Aekta Patel appeals the circuit court’s order granting defendant Cook County
Health and Hospital Systems’ motion for summary judgment. The issue on appeal is whether the
circuit court erred in granting summary judgment. For the following reasons, we affirm in part and
reverse in part the circuit court’s order granting summary judgment and remand this case for
further proceedings. No. 1-23-0758
¶3 I. BACKGROUND
¶4 In 2009, plaintiff Aekta Patel was hired as an inpatient staff pharmacist by defendant Cook
County Health and Hospital Systems. Plaintiff was assigned to Cermak Health Services of Cook
County, the correctional health entity of CCHHS which provides onsite health care to detainees at
the Cook County Department of Corrections. One of the services Cermak provides to detainees is
an opioid treatment program. As part of the opioid treatment program, controlled narcotic
substances, suboxone and methadone, are used to help detainees reduce dependency on opioids.
Cermak pharmacists, including plaintiff, are responsible for dispensing these substances to
detainees. While defendant’s job descriptions for some of its nurse positions include the
administration of drugs to detainees, plaintiff’s job description did not require administering
suboxone and methadone to detainees, nor did defendant provide training to plaintiff regarding the
administration of suboxone and methadone.
¶5 Beginning in July 2018, plaintiff raised concerns to her supervisor, Dr. Mary Ann Wrobel,
that Cermak pharmacists were being required to orally administer suboxone and methadone to
detainees despite drug administration not being within the scope of the Pharmacy Practice Act
(225 ILCS 85/1 et seq. (West 2018)). Later that same month, plaintiff was disciplined for allegedly
being unprofessional on the phone with a county employee, which plaintiff alleges was a routine
instruction she gave to a medical technician about refill protocol. In August 2018, plaintiff emailed
CCHHS management and her pharmacist co-workers about a conversation she had with the Illinois
Department of Financial and Professional Regulations. Plaintiff claimed that the IDFPR
pharmacist license does not allow oral administration of controlled substances and that pharmacists
are only allowed to dispense, and not to administer, controlled substances. Throughout the next
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several months, plaintiff sent at least seven emails to CCHHS management regarding the
administration of suboxone and methadone at Cermak. In January of 2019, plaintiff received verbal
and written discipline for allegedly failing to follow orders from CCHHS management to stop
sending emails to management regarding her concerns about the administration of suboxone and
methadone by pharmacists.
¶6 During this same period of time, in addition to plaintiff’s internal complaints to CCHHS
management, plaintiff sent complaints to various outside agencies about Cermak pharmacists
being required to administer suboxone and methadone, including the IDFPR and the Illinois
Department of Human Services Division of Substance Use Prevention and Recovery (IDHS-
DSUPR). On October 17, 2018, the IDFPR investigated defendant’s work site and observed a
pharmacist “dispense and administer” suboxone and methadone to two detainees. (C 310.) After
the IDFPR visit, Dr. Wrobel informed plaintiff that the IDFPR had found nothing wrong. When
plaintiff asked for a report stating that the inspector had found nothing wrong, Dr. Wrobel stated
that plaintiff didn’t need it and walked away. On the same day as the IDFPR visit, plaintiff was
suspended for 13 days for allegedly violating HIPAA and “being insubordinate for failing to follow
a management directive.” (C 55.) The IDFPR performed a second visit in July 2019 and closed its
investigation in 2021. Additionally, the IDHS-DSUPR inspected defendant’s work site in January
2019, finding no violations under its jurisdiction.
¶7 In March of 2019, defendant terminated plaintiff’s employment, alleging that she had
violated HIPAA by scanning 83 documents containing patient protected health information onto
her Cook County email address. Plaintiff admitted that she had scanned the emails but argued that
she only scanned the patient records to her work email because she had been instructed by Dr.
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Wrobel to send plaintiff’s unfinished work to her supervisors, and that plaintiff had done this in
the past without it being considered a HIPAA violation. A hearing regarding these charges was
held, in which plaintiff contested the termination charges against her and made several requests,
including that defendant permanently remove suboxone and methadone administration from her
assigned tasks. In the hearing officer’s July 7, 2019, decision, he found that plaintiff had violated
HIPAA and five Cook County rules and regulations. However, the hearing officer found that
termination was too severe of a penalty and reduced plaintiff’s termination to a 29-day suspension.
¶8 On July 9, 2019, defendant sent plaintiff a letter requiring her to attend a mandatory
Employee Health Services return-to-work appointment on July 15. However, the letter was
postmarked on July 17 and plaintiff claimed that she did not receive the letter until that date, two
days after the scheduled return-to-work appointment. On July 31, defendant sent plaintiff a second
letter, noting that she had failed to attend the mandatory return-to-work appointment and that she
had fourteen business days from the receipt of the letter to contact the human resources department
regarding her return to work. Plaintiff received the letter on August 12.
¶9 On August 2, plaintiff’s attorney wrote a letter to defendant that reiterated plaintiff’s
previous request that administration of suboxone and methadone be permanently removed from
plaintiff’s assigned tasks at Cermak. Plaintiff did not otherwise contact defendant or the human
resources department, nor did defendant provide any response to plaintiff’s attorney’s letter. On
September 12, 2019, defendant terminated plaintiff’s employment for several stated reasons,
including job abandonment, gross insubordination, engaging in conduct that reflects adversely or
brings discredit to the CCHHS, and failure to follow instructions or failure to work in accordance
with CCHHS’s policies, procedures, and practices.
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¶ 10 On September 14, 2020, plaintiff filed a complaint under sections 15 and 20 of the
Whistleblower Act (740 ILCS 174/1 et seq. (West 2018)), alleging that she suffered adverse
employment actions in retaliation for engaging in activity that is protected under the Act.
Defendant filed a motion for summary judgment, which the circuit court granted. Citing Belleville
Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), the circuit court held that
plaintiff’s claims under the Whistleblower Act were subject to a one-year statute of limitations,
and that therefore any claims arising prior to plaintiff’s September 12, 2019, termination were
untimely. The circuit court held that plaintiff’s claim regarding her September 12, 2019,
termination was timely 1 , but that “[p]laintiff’s termination was not based on protected activity
under the Illinois Whistleblower Act.” This timely appeal followed. Ill. S. Ct. R. 303 (eff. July 1,
2017).
¶ 11 II. ANALYSIS
¶ 12 Plaintiff argues that the circuit court erred in granting defendant’s motion for summary
judgment because she engaged in activity that is protected under the Whistleblower Act and that
defendant terminated her employment in retaliation for her protected activity. Defendant argues
that summary judgment was properly granted because plaintiff did not engage in any protected
activity under the Whistleblower Act, and even if she did, it had a valid, non-pretextual reason for
terminating plaintiff’s employment that was unrelated to plaintiff’s protected activity.
¶ 13 “A motion for summary judgment is properly granted only where the pleadings,
depositions, admissions, and affidavits establish that no genuine issue of material fact exists and
1September 12, 2020 was a Saturday, so plaintiff’s claim is timely as she filed it on September 14, the following Monday. See 5 ILCS 70/1.11 (West 2018).
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that the moving party is entitled to judgment as a matter of law.” Thai v. Triumvera 600 Naples
Court Condominium Ass’n, 2020 IL App (1st) 192408, ¶ 38; 735 ILCS 5/2-1005 (West 2022). “A
genuine issue of material fact exists where either the material facts are disputed or the material
facts are undisputed but reasonable people may draw different inferences from those facts.”
Sardiga v. Northern Trust Co., 409 Ill. App. 3d 56, 61 (2011). “In determining whether factual
issues exist for the purposes of a summary judgment motion, the court must ignore personal
conclusions, opinions and self-serving statements and consider only facts admissible in evidence.”
Reuben H. Donnelley Corp. v. Krasny Supply Co., Inc., 227 Ill. App. 3d 414, 421 (1991). Facts are
viewed in the light most favorable to the non-moving party. Jones v. Chicago HMO Ltd. of Illinois,
191 Ill. 2d 278, 282 (2000). An employer’s true motive for terminating an employee is a question
of fact that is not normally subject to summary judgment. Zuccolo v. Hannah Marine Corp., 387
Ill. App. 3d 561, 568 (2008). A circuit court’s grant of summary judgment is reviewed de novo.
Id. at 564.
¶ 14 A. Section 15 of the Whistleblower Act
¶ 15 Plaintiff argues that she engaged in protected activity under sections 15 and 20 of the
Whistleblower Act. “The Whistleblower Act provides employees protection from an employer's
retaliation for certain disclosures and refusals and prohibits policies that prevent an employee from
disclosing information to a government agency that the employee reasonably believes violate a
state or federal law, rule, or regulation.” Roberts v. Board of Trustees of Community College
District No. 508, 2019 IL 123594, ¶ 40. Section 15 of the Whistleblower Act prohibits an employer
from retaliating “against an employee for disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to believe that the information
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discloses a violation of a State or federal law, rule, or regulation.” 740 ILCS 174/15(b) (West
2018). Therefore, for plaintiff to prevail under section 15 of the Whistleblower Act, she must show
that: (1) she disclosed information to a government or law enforcement agency, (2) she reasonably
believed that the information disclosed a “violation of a State or federal law, rule, or regulation,”
and (3) due to this disclosure, her employer retaliated against her. Id.
¶ 16 The parties do not dispute that plaintiff repeatedly informed both CCHHS management
and outside government agencies, such as the IDFPR and the IDHS-DSUPR, that defendant’s
alleged requirement that pharmacists administer suboxone and methadone to detainees violates the
Pharmacy Practice Act (225 ILCS 85/1 et seq. (West 2018)). However, plaintiff must have
reasonably believed that the information that she sent disclosed a violation of the Pharmacy
Practice Act. “Generally, reasonableness is a question of fact rather than a question of law, unless
reasonable minds could not differ.” Brame v. City of North Chicago, 2011 IL App (2d)
100760, ¶ 13.
¶ 17 Plaintiff testified in her depositions that she believed the administration of suboxone and
methadone by a pharmacist violated the Pharmacy Practice Act. The deposition transcripts were
attached to defendant’s motion for summary judgment and were squarely before the circuit court.
Defendant argues that plaintiff’s belief cannot be considered reasonable because she had been
informed after the inspections by the IDFPR and IDHS-DSUPR that neither organization had
found any violations. But that is a fact issue.
¶ 18 Finally, for plaintiff to succeed in her claim under section 15 of the Whistleblower Act,
plaintiff must show that she suffered “an adverse employment action by [her] employer” in
retaliation for plaintiff’s disclosure to a government or law enforcement agency “of a suspected
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violation of an Illinois or federal law, rule or regulation.” Sweeney v. City of Decatur, 2017 IL App
(4th) 160492, ¶ 15. “The employer’s motive in discharging the employee is the ultimate issue when
deciding the element of causation.” Brummel v. Grossman, 2018 IL App (1st) 170516, ¶ 49.
¶ 19 Plaintiff argues that the reasons provided by defendant for her September 12, 2019,
termination were pretextual, and that she was instead terminated in retaliation for her complaints
to government agencies regarding suboxone and methadone administration. In support, plaintiff
points to her depositions, in which she testified that after she began complaining about the illegality
of the administration of suboxone and methadone, defendant punished plaintiff by disciplining her
for routine conduct that plaintiff had not been punished for previously. (C 160.) For example,
during the same month after plaintiff first raised concerns to Dr. Wrobel about suboxone and
methadone administration, plaintiff was disciplined for a “routine instruction to a medical
technician about refill protocol” that she alleges was no different from the procedures that plaintiff
had been following for years. (C 160.) Similarly, on the same day that the IDFPR inspector
investigated defendant’s facility and practices in response to plaintiff’s complaint, defendant
issued plaintiff a 13-day suspension, in part due to plaintiff’s “gross insubordination.” (C140).
Further, plaintiff was terminated in March 2019 because of an alleged HIPAA violation. Plaintiff
testified in her depositions that she was following Dr. Wrobel’s instructions and claims that she
scanned patient information to plaintiff’s work email so she could forward her unfinished work to
her supervisors, which plaintiff had done in the past without issue. (C 142.) Plaintiff argues that
these previous adverse employment actions show that plaintiff was terminated in September 2019
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due to her previous complaints regarding the administration of suboxone and methadone by
pharmacists, rather than due to job abandonment as defendant claims. 2
¶ 20 Defendant argues that it had a valid, non-pretextual reason for terminating plaintiff’s
employment on September 12, 2019: job abandonment. After the hearing officer reduced
plaintiff’s March 2019 disciplinary action from termination to a 29-day suspension, defendant sent
plaintiff a letter requiring her to report to Employee Health Services by July 15, 2019. Plaintiff did
not appear for this appointment because she claimed that she only received the letter on July 17.
Defendant then sent plaintiff a final notice directing her to contact the human resources department
within 14 business days of her receipt of the letter, which plaintiff failed to do. Defendant argues
that this was a legitimate reason for defendant to terminate plaintiff’s employment. Defendant
contends that even though plaintiff had sent a letter to defendant through her attorney on August
2, 2019 seeking to negotiate plaintiff’s return to work, this did not change the fact that plaintiff
failed to contact HR within the 14-day deadline and that defendant had a valid reason to terminate
plaintiff’s employment that was unrelated to any alleged protected activity under the
2 Defendant argues that all of the adverse employment actions alleged by plaintiff in her complaint, except for her September 12, 2019 termination, are “subject to the one-year limitations period set forth in the Local Governmental and Governmental Employees Tort Immunity Act” and are therefore time-barred. Taylor v. Board of Education of City of Chicago, 2014 IL App (1st) 123744, ¶ 46; 745 ILCS 10/8-101(a) (West 2022). Plaintiff does not dispute this point. Defendant argues that we should disregard any of plaintiff’s arguments that reference these time-barred adverse employment actions. However, plaintiff references these time-barred adverse employment actions in her arguments on appeal because she contends that they show defendant’s hostility to plaintiff’s complaints regarding the administration of suboxone and methadone, and that they are relevant to defendant’s retaliatory intent in terminating plaintiff’s employment on September 12, 2019. Plaintiff is permitted to reference time-barred prior acts as background evidence in order to support her timely claim regarding her September 12, 2019, termination. See Pace Suburban Bus Division of Regional Transportation Authority v. Illinois Labor Relations Board, 406 Ill. App. 3d 484, 502 (2010).
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Whistleblower Act. In support, defendant points to the testimony of Dr. Wrobel in a signed
declaration defendant attached to its motion for summary judgment. (C 246.)
¶ 21 As we recently stated in a similar case involving claims under the Whistleblower Act:
“We are presented with a classic case of both sides presenting evidence to support
their positions and advancing a narrative that could be true. In such a case, summary
judgment is not appropriate. Our role in reviewing a summary judgment decision is not to
evaluate the quality of the evidence or argument, but rather to evaluate whether any
evidence exists from which a fact finder can conclude that the party proved the elements
of the cause of action.” Hubert v. Board of Education of City of Chicago, 2020 IL App
(1st) 190790, ¶ 24.
Defendant’s motive in terminating plaintiff’s employment is a genuine issue of material fact. Id.
¶¶ 25, 35. A reasonable jury could find that defendant terminated plaintiff’s employment in
retaliation for her repeated complaints about alleged Pharmacy Practice Act violations to
government agencies, and that defendant’s stated reason for plaintiff’s termination, job
abandonment, was pretextual. Both parties have provided evidence supporting their arguments
about what defendant’s motive was, and it is for the fact finder to determine which party is the
most convincing. Id. ¶ 36. Because there are genuine issues of material fact, the circuit court erred
in granting defendant’s motion for summary judgment regarding plaintiff’s claim under section 15
of the Whistleblower Act. Zuccolo, 387 Ill. App. 3d at 569 (“[W]e believe that a disputed question
of fact as to [employer’s] motivation in terminating the plaintiff still remains, thereby precluding
summary judgment.”).
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¶ 22 Defendant argues that plaintiff cannot satisfy the element of causation because defendant
had a valid, non-pretextual reason for terminating plaintiff’s employment. Brummel, 2018 IL App
(1st) 170516, ¶ 49. However, “[i]f an employer provides a reason for the employee’s dismissal,
that does not automatically defeat a retaliatory discharge claim.” Michael v. Precision Alliance
Group, LLC, 2014 IL 117376, ¶ 32. Instead, the employer must provide a valid, non-pretextual
reason for the employee’s termination and the trier of fact must believe this reason. Id. ¶ 39. We
leave it to the jury to decide whether defendant’s provided reason for terminating plaintiff’s
employment is pretextual or not.
¶ 23 B. Section 20 of the Whistleblower Act
¶ 24 Section 20 of the Whistleblower Act prohibits an employer from retaliating “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[.]” 740 ILCS 174/20 (West 2018). Therefore, for plaintiff to have
engaged in protected activity under section 20 of the Whistleblower Act, she must show that (1)
an activity violated a statute, rule or regulation, and (2) plaintiff refused to participate in that
activity. Roberts, 2019 IL 123594, ¶ 42.
¶ 25 Plaintiff alleges that the administration of controlled narcotic substances, like suboxone
and methadone, by a pharmacist to detainees in the opioid treatment program violates the
Pharmacy Practice Act. Plaintiff argues that the Pharmacy Practice Act defines what constitutes
the practice of pharmacy, and only authorizes the administration of drugs in a few limited
circumstances, none of which are met here. 225 ILCS 85/3(d)(4) (West 2018). Plaintiff contends
that under the Pharmacy Practice Act, she is authorized to dispense suboxone and methadone to
detainees but is not authorized to administer it.
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¶ 26 Under the Pharmacy Practice Act, the “[p]ractice of pharmacy” includes “the dispensing
of prescription drug orders.” Id. § 3(d)(2). The Act defines “dispensing” as the “interpretation,
evaluation, and implementation of a prescription drug order, including the preparation and delivery
of a drug *** to a patient *** in a suitable container appropriately labeled for subsequent
administration to or use by a patient in accordance with applicable State and federal laws and
regulations.” Id. § 3(m). The Act also states that the “[p]ractice of pharmacy” includes “drug
administration,” but only in specific defined circumstances. Id. § 3(d)(4). None of the defined
circumstances in the Act authorize the oral administration of controlled substances by a
pharmacist. Id. Although there is an exception that pharmacists can administer injections of
specific types of medication to patients after they receive certain training, plaintiff has alleged that
she was required to administer suboxone and methadone orally. 225 ILCS 85/3(d)(4)(B-5) (West
2020). 3 The Pharmacy Practice Act does not define “administration.” See 225 ILCS 85/3 (West
2018).
¶ 27 Under the plain language of the Pharmacy Practice Act, oral administration of suboxone
and methadone does not fall within the practice of pharmacy. However, plaintiff does not cite to
any section of the Pharmacy Practice Act that states that the Act is violated if a pharmacist
performs an action outside of the scope of the practice of pharmacy. Neither does plaintiff cite a
section of the Act that states that it is a violation of the Act for an individual to administer
controlled substances. Nor could she, because no provision of the Pharmacy Practice Act makes
the administration of suboxone and methadone by pharmacists unlawful. Instead, the purpose of
3This specific exception was added to the Pharmacy Practice Act on January 1, 2020, and did not exist while plaintiff was employed by defendant. See 225 ILCS 85/3(d)(4)(B-5) (West 2020).
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the Act is to ensure that “only qualified persons be permitted to practice pharmacy in the State of
Illinois.” Id. § 1. That is, the Act’s purpose is to prevent non-pharmacists from practicing
pharmacy, not to define the limits of what actions a pharmacist may take. If plaintiff’s reading of
the Act is correct, then it would be unlawful under the Act for a pharmacist to do anything other
than the 17 actions described under the practice of pharmacy. Pharmacists would be legally
prohibited from performing numerous tasks ancillary to the practice of pharmacy. Such a reading
would be absurd. Because the administration of suboxone and methadone by pharmacists to
detainees in the opioid treatment program does not violate the Pharmacy Practice Act, the circuit
court did not err in granting defendant’s motion for summary judgment regarding plaintiff’s claims
under section 20 of the Whistleblower Act.
¶ 28 C. Forfeiture
¶ 29 As a final matter, defendant argues that plaintiff has forfeited some of her arguments and
citations to the record that she introduces for the first time on appeal. Defendant argues that
plaintiff raises three new arguments for the first time on appeal, and that because plaintiff did not
rely on these arguments in her response to defendant’s motion for summary judgment before the
circuit court, the arguments are forfeited, and we should not consider them. Village of Palatine v.
Palatine Associates, LLC, 2012 IL App (1st) 102707, ¶ 64. These three new arguments are: (1)
that plaintiff refused to circumvent the requirements of the Pharmacy Practice Act “by posing as a
Clinical Pharmacist”; (2) that plaintiff’s termination and other disciplinary actions were proximate
in time to her alleged protected activity; and (3) that defendant terminated plaintiff’s employment
“in part because she persisted in including upper management in complaints and in part because
she refused to return to work absent assurance that she would not be required to administer
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controlled substances” and as “punish[ment] for the prior discipline.” However, plaintiff
specifically raises these arguments in her memorandum in opposition to defendant’s motion for
summary judgment.
¶ 30 Defendant additionally makes forfeiture arguments regarding 11 factual citations to the
record that defendant claims plaintiff did not present before the circuit court when opposing
defendant’s summary judgment motion. However, plaintiff testifies as to some of these facts in
her depositions (which were attached to defendant’s motion for summary judgment and thus were
squarely before the circuit court), and we have not relied on any of the remaining factual points in
reaching our conclusion in this case.
¶ 31 III. CONCLUSION
¶ 32 The judgment of the circuit court of Cook County is affirmed regarding plaintiff’s claim
under section 20 of the Whistleblower Act and reversed regarding plaintiff’s claim under section
15 of the Whistleblower Act, and the cause is remanded.
¶ 33 Affirmed in part and reversed in part; cause remanded.
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