NOTICE 2015 IL App (5th) 140170 Decision filed 03/26/15. The text of this decision may be NO. 5-14-0170 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 ________________________________________________________________________
SHARI TERADA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 12-L-458 ) ELI LILLY AND COMPANY and LORI ) TRENTACOSTI, ) Honorable ) Vincent J. Lopinot, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________
JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Goldenhersh and Schwarm concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Shari Terada, filed a five-count complaint against the defendants, Eli
Lilly and Company (Lilly) and Lori Trentacosti, alleging claims of discrimination,
retaliatory discharge, and defamation. The circuit court of St. Clair County granted the
defendants' motion to transfer venue to Jackson County based on improper venue, and the
plaintiff filed this interlocutory appeal. For the following reasons, we reverse and
remand for further proceedings.
¶2 BACKGROUND
¶3 In her complaint, the plaintiff alleges that, from 2000 until her discharge on 1 December 15, 2011, she was employed by Lilly as a sales representative, selling diabetic
methods of treatment to doctors in several southern Illinois counties, including St. Clair
County. She alleges that Lilly unlawfully discriminated against her based on her age,
national origin, and sexual orientation. The alleged unlawful discrimination includes, but
is not limited to: terminating her employment; conducting human resources investigations
into her work conduct; wrongfully accusing her of violating company policy; giving her a
low evaluation rating without basis; treating her differently than other persons outside her
protected class groups in that her 30-year-old heterosexual supervisor refused to drive
with her on sales calls, refused to be with her on certain occasions, and refused to
cooperate, assist, and promote her work as a salesperson; refusing to investigate,
discipline, and/or terminate other employees not in her protected group classifications for
their violations of work policies; ordering her not to talk to Pat Benac, a former employee
who was contemplating an age discrimination suit against Lilly; and ordering her not to
talk to her former manager, Bruce Killough. She also alleges that Lilly retaliated against
her for making discrimination complaints and for helping a former employee with his
possible discrimination suit against Lilly in the following ways: failing to investigate
discrimination complaints; failing to investigate, discipline, or terminate younger workers
who were violating company rules and policies; telling her not to talk to Benac; refusing
to investigate her allegation that she was being falsely accused and terminating her
instead; treating her differently than other employees who were not members of her
protected class; falsely accusing her of violating company rules; failing to properly
investigate said allegations; improperly investigating her for false allegations; ordering 2 her not to talk to any individuals about discrimination, violations of work rules, or
possible discrimination suits; giving her a low evaluation rating with no basis; and
terminating her. She brought these claims under both the Illinois Human Rights Act (775
ILCS 5/1-101 et seq. (West 2012)) (count I) and the Missouri Human Rights Act (Mo.
Rev. Stat. § 213.010 et seq. (2000)) (count V).
¶4 The plaintiff also alleges that she was investigated under false pretenses and
terminated in retaliation for whistleblowing in that she reported to management that
coworkers were engaging in improper and unethical conduct in violation of a 2009
corporate integrity agreement between Lilly and the United States government through
the Office of the Inspector General. Specifically, she reported that salespersons were
falsely representing that they were making in-person contacts with doctors, as required by
the corporate integrity agreement, when, in fact, they were not. She brought both a
common law whistleblowing claim (count III) and a claim under the Whistleblower Act
(740 ILCS 174/1 et seq. (West 2012)) (count IV).
¶5 Finally, the plaintiff alleges that Trentacosti, an independent contractor patient
educator for Lilly, defamed her by intentionally making false statements to third parties,
including employees of Lilly, which resulted in her termination (count II). The false
statements Trentacosti allegedly made included the following: (1) the plaintiff promoted
Byetta off label for weight loss in a July 12, 2011, program to educate doctors; (2) the
plaintiff called Trentacosti before the program and told her to promote Tradjenta; (3) the
plaintiff told Trentacosti several times that she could take Trentacosti out to lunch or
dinner, pay for it, and not tell anyone, even though that is against company policy; and 3 (4) the plaintiff told Trentacosti that she could take Trentacosti down to Tunica,
Mississippi, and take her on a shopping spree.
¶6 The defendants filed a joint motion to transfer for improper venue, pursuant to
section 2-101 of the Code of Civil Procedure (735 ILCS 5/2-101 (West 2012)). The
defendants first argued that venue was improper in St. Clair County because they were
not residents of that county. Trentacosti resides in Jackson County. Lilly has no office in
St. Clair County and argued that it was not doing business in that county. Lilly argued
that its residence was Cook County, the location of its registered agent. Therefore, the
defendants argued that the plaintiff's case should be transferred to Cook or Jackson
County. The defendants also argued that the only connection the plaintiff and the
complaint had to St. Clair County was that she sometimes worked in that county.
¶7 The defendants also argued that the transaction prong of the venue statute did not
apply because all of the alleged acts and omissions underlying the plaintiff's claims
occurred in either Jackson County, Illinois; Missouri; or Indiana. More specifically, they
alleged that the plaintiff and her supervisor, Christopher Farr, lived in Missouri, and Lori
Morris, Lilly's human resources consultant, who investigated complaints against the
plaintiff, was located in Indiana. The defendants argued that Farr and Morris made the
decision to terminate the plaintiff in Indiana and communicated that decision to her via a
letter from Morris in Indiana. Attached to the motion were several affidavits in support.
¶8 In his affidavit, Farr states as follows. He resides in St. Louis, Missouri, and is
employed as a district manager for Lilly. His district covers parts of Illinois, Missouri,
and Arkansas. As district manager, he oversees 12 sales territories, each of which has 1 4 sales representative. Eight sales representatives work in Missouri, two work in Illinois,
and two work in Arkansas. The plaintiff was one of the sales representatives he directly
supervised. The plaintiff lives in Missouri, but her sales territory was in Illinois. Her
territory forms a rough triangle from East St. Louis east to Centralia, south to
Carbondale, and back along the Mississippi River to East St. Louis. The territory does
not go north of Interstate 70 or east of Interstate 57. Because both he and the plaintiff
live in Missouri, most of his interactions with her occurred while he was in Missouri, and
she was frequently in Missouri with him. For example: district sales meetings occurred
in Missouri; he conducted her interim review in Missouri, in person; he wrote her
evaluation from Missouri; he helped investigate complaints she made about other
employees from Missouri; he coached her from Missouri; and when she was ultimately
terminated, they were scheduled to participate in a telephone call that he would have
taken from Missouri. The only times he interacted with her in Illinois were during
routine field rides, which he conducted with each of his sales representatives once every
couple of months. He was involved in the decision to discharge her, and his involvement
was via telephone calls that he made while located in Missouri.
¶9 In her affidavit, Morris states as follows. She resides in Indiana and is employed
as a human resources consultant for Lilly. She was in Indiana during all of the events
described in her affidavit. On November 4, 2011, Lilly received an anonymous
complaint on its ethics hotline regarding the plaintiff, a Lilly sales representative. The
individuals who answer the ethics hotline calls are located in Oregon. The ethics
complaint was referred to Morris, and she investigated the allegations. During her 5 investigation, she interviewed several people, including Trentacosti, an independent
contractor patient educator for Lilly, and the plaintiff. Farr participated in the telephone
interview of the plaintiff. After her investigation, Morris concluded that the plaintiff
engaged in misconduct through her promotion practices and by not being forthright
during the investigation. Misconduct is grounds for immediate termination at Lilly.
Based on the investigation's conclusions, Farr and Morris, in consultation with others,
decided to terminate the plaintiff. The plaintiff was scheduled to speak to Farr and
Morris via telephone on December 15, 2011, but failed to join two calls and failed to
contact them by the end of the day. Accordingly, Morris communicated the termination
decision to the plaintiff via a letter sent from Indiana to the plaintiff's home address in
Missouri.
¶ 10 In Trentacosti's affidavit, she states as follows. She lives in Carbondale, Illinois,
and works as a clinical dietitian at the Center for Medical Arts, which is also in
Carbondale. She also provides patient educator services as an independent contractor for
Lilly. She is not a Lilly employee. As a Lilly patient educator, she provides programs to
patients who have been prescribed Lilly drugs for a particular disease, usually diabetes.
The programs provide information to patients about their disease and training about how
to administer and store their prescription drugs. Trentacosti conducted Lilly patient
education programs at various medical providers' offices in Carbondale, Murphysboro,
DuQuoin, Harrisburg, and Marion, Illinois, which are located in Jackson, Perry, Saline,
and Williamson Counties, respectively. She has never conducted a patient educator
program in St. Clair County. As a Lilly patient educator, she often interacts with Lilly 6 employees, including Lilly sales representatives who are promoting the products about
which she educates patients. One Lilly sales representative with whom she interacted
was the plaintiff. She did not interact with the plaintiff in St. Clair County. In the
summer of 2011, she observed the plaintiff engaging in conduct and making statements
that she believed violated Lilly's policies. These activities and statements occurred in
Carbondale and Murphysboro. Because she was concerned that the plaintiff's statements
and offers might reflect poorly on her, she reported them to Lilly's ethics hotline and
asked that she not see the plaintiff anymore. She was later contacted by Morris, a Lilly
employee, who discussed her report with her. All statements that she made about the
plaintiff, including the ethics complaint and investigation interviews, were made while
she was in Carbondale.
¶ 11 In his affidavit, John A. Abbott states as follows. He is employed as a consultant
for Lilly's incentives and business reporting department. Between December 2011 and
November 2012, total prescriptions in St. Clair County zip codes constitute 0.02% of
Lilly's total prescriptions filled nationally. As of July 1, 2012, 0.40% of Lilly's national
sales force, including sales representatives and sales managers, was associated with St.
Clair County zip codes.
¶ 12 The plaintiff filed a response to the defendants' motion to transfer for improper
venue, arguing that the transaction prong of the venue statute applied to render venue in
St. Clair County proper. Attached to the response was the plaintiff's affidavit, in which
she stated as follows.
¶ 13 She was employed by Lilly as a sales representative from 2000 until December 15, 7 2011. The majority of her sales territory from June 2010 to December 15, 2011, included
St. Clair County. Her work performance was judged on her sales performance in St.
Clair County.
¶ 14 In 2011, Lilly conducted human resources investigations into her work conduct.
During one such investigation in late August 2011, she was interviewed via telephone
conference. She and her immediate supervisor, Farr, were physically located across a
table from each other in front of a speakerphone in a St. Clair County hotel while Morris,
Lilly's human resources consultant, was on the telephone in Indiana. Both Farr and
Morris interviewed her. Disciplinary action was taken against her after this interview.
During this telephone conference, Morris told her not to talk to Benac, a former coworker
who was contemplating filing a discrimination claim against Lilly.
¶ 15 Farr supervised the plaintiff doing her job in St. Clair County. Farr treated her
differently than her coworkers based on her age, national origin, and sexual orientation.
In particular, in order to observe his subordinates' sales practices and to review their job
performance, Farr would ride in the sales representatives' cars with them while they were
performing their sales calls to doctors' offices and then evaluate their work performance
at the doctors' offices and to and from the doctors' offices. Farr, however, treated her
differently in that he refused to ride with her in her car and, instead, followed her in his
car and met her at the destinations for her sales calls. The majority of her sales calls
occurred in St. Clair County because that was the largest part of her sales territory. One
of the diabetes sales representatives with whom Farr would ride in the car to evaluate her
job performance was Kelli Goetten. Goetten's sales territory also included St. Clair 8 County. Because Goetten and the plaintiff were on the diabetes sales team that covered
St. Clair County, they worked closely together.
¶ 16 During the telephone conference call referenced above, the plaintiff reported to
Farr and Morris that Lilly salespersons were falsely representing that they were making
in-person contacts with doctors, when, in fact, they were not. This was contrary to the
2009 corporate integrity agreement between Lilly and the United States government.
One of the Lilly employees who was falsely representing that she was making in-person
contacts with doctors was Goetten. Some of Goetten's improper actions occurred in St.
Clair County with St. Clair County healthcare providers.
¶ 17 After hearing argument on the motion, the circuit court granted the defendants'
motion to transfer the case based on improper venue and transferred the case to Jackson
County. The plaintiff filed a timely petition for leave to appeal, pursuant to Illinois
Supreme Court Rule 306(a)(4) (eff. Feb. 16, 2011), which this court granted.
¶ 18 ANALYSIS
¶ 19 On appeal, the plaintiff argues that the circuit court of St. Clair County erred in
granting the defendants' motion to transfer this case to Jackson County based on improper
venue. We agree.
¶ 20 "The determination of proper statutory venue raises separate questions of fact and
law because it necessarily requires a trial court to rule on the legal effect of its factual
findings." Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 153-54 (2005). "We will not
disturb a trial court's findings of fact unless those findings are against the manifest weight
of the evidence." Id. at 154. "After reviewing the trial court's factual findings, we review 9 the legal effect of the trial court's conclusions de novo." Id. at 155. Where, as here, there
is no dispute concerning the facts relied upon by the court, a de novo standard of review
is proper. Id. at 153.
¶ 21 It is the defendants' burden to prove that the plaintiff's venue selection was
improper. Id. at 155. In doing so, the defendants must provide specific facts, not
conclusions, and demonstrate a clear right to the relief requested. Id.
¶ 22 Section 2-101 of the Code of Civil Procedure (the Code) provides, in pertinent
part, as follows: "Except as otherwise provided in this Act, every action must be
commenced (1) in the county of residence of any defendant *** or (2) in the county in
which the transaction or some part thereof occurred out of which the cause of action
arose." 735 ILCS 5/2-101 (West 2012).
¶ 23 The sole issue before us is whether venue is proper in St. Clair County under the
second prong of section 2-101 of the Code, which is referred to as the transactional
prong. Determining whether venue is proper under the transactional prong requires us to
consider two key variables: the nature of the cause of action and the place where the
cause of action springs into existence. Boxdorfer v. DaimlerChrysler Corp., 339 Ill. App.
3d 335, 344 (2003).
¶ 24 The second factor in determining transactional venue–where the cause of action
springs into existence–considers, among other things, where " 'any significant
negotiations were carried on between the parties, where an agreement was signed, the
place where it was, or was supposed to be performed, or where matters occurred that
plaintiff has the burden of proving.' " Williams v. Illinois State Scholarship Comm'n, 139 10 Ill. 2d 24, 68 (1990) (quoting People ex rel. Carpentier v. Lange, 8 Ill. 2d 437, 441
(1956)).
¶ 25 In order to establish a prima facie case of retaliation under the Illinois Human
Rights Act, a plaintiff must prove that (1) she was engaged in a protected activity; (2) the
employer committed a material adverse action against her (i.e., fired her); and (3) a
causal nexus existed between the protected activity and the adverse act. Hoffelt v.
Department of Human Rights, 367 Ill. App. 3d 628, 634 (2006). Similarly, to establish a
prima facie case of employment discrimination, a plaintiff must show that (1) she is a
member of a protected class; (2) she was meeting her employer's legitimate business
expectations; (3) she suffered an adverse employment action (i.e., she was fired); and (4)
the employer treated similarly situated employees outside the class more favorably.
Owens v. Department of Human Rights, 403 Ill. App. 3d 899, 919 (2010). Finally, to
maintain a retaliatory discharge claim, a plaintiff must prove that (1) she was terminated
from employment; (2) the discharge was in retaliation for her activities; and (3) the
discharge violates a clear mandate of public policy. Michael v. Precision Alliance
Group, LLC, 2014 IL 117376, ¶ 31.
¶ 26 Accordingly, in this discrimination, retaliation, and retaliatory discharge case, the
plaintiff not only has to prove that she was fired by Lilly, but also that the underlying acts
of discrimination, retaliation, and whistleblowing were the reasons for her termination,
thus rendering her termination illegal. It is those factual details that occurred in St. Clair
County.
¶ 27 For example, one element of the plaintiff's discrimination claim is that she was 11 meeting her employer's legitimate business expectations. Because most of her work for
Lilly was performed in St. Clair County, whether she was meeting her employer's
legitimate business expectations would involve her work performance in St. Clair
¶ 28 In addition, the plaintiff alleged that the unlawful discrimination included the fact
that Lilly conducted human resources investigations into her work conduct. This
investigation relates not only to the plaintiff's work performance (an element of her
discrimination claim) but also to her claim that Lilly was retaliating against her by
conducting the investigation. The plaintiff was interviewed during one of these
investigations by her immediate supervisor, Farr, and by Lilly's human resources
consultant, Morris, in late August 2011. This interview was by telephone conference.
During this interview, the plaintiff and Farr were physically located across a table from
each other in front of a speakerphone at a hotel in St. Clair County while Morris was in
Indiana.
¶ 29 The plaintiff also alleged that Lilly retaliated against her for assisting a former
employee who was contemplating a discrimination suit against Lilly. Morris told the
plaintiff not to talk to this former employee when she and Farr interviewed the plaintiff in
the August 2011 investigation, during which the plaintiff and Farr were physically
located in St. Clair County.
¶ 30 The plaintiff also alleged that the unlawful discrimination included the fact that
her supervisor, Farr, a 30-year-old heterosexual, treated her differently than other persons
outside of her protected class groups in that he refused to ride with her on sales calls. He 12 would ride with other subordinates in their cars while they were performing their sales
calls to doctors' offices and then evaluate their work performance at the doctors' offices
and to and from the doctors' offices. He refused to ride with the plaintiff in her car and,
instead, would follow her in his car and meet her at the destinations for her sales calls in
order to evaluate her. The majority of the plaintiff's sales calls occurred in St. Clair
County because that was the largest part of her sales territory. Moreover, one of the
subordinates with whom Farr would ride in the car was Goetten, another sales
representative whose territory included St. Clair County. Farr rode in the car with
Goetten in St. Clair County in order to evaluate her performance.
¶ 31 The plaintiff also alleged that she was terminated in retaliation for whistleblowing
in that she reported to management that coworkers were engaging in improper and
unethical conduct in violation of the corporate integrity agreement between Lilly and the
United States government. In particular, the plaintiff alleged that she reported that
salespersons were falsely representing that they were making in-person contacts with
doctors, as required by the corporate integrity agreement, when, in fact, they were not.
One of the occasions when the plaintiff reported this improper and unethical conduct was
when Farr and Morris interviewed her in the August 2011 investigation, during which she
and Farr were physically located in St. Clair County.
¶ 32 In addition, the improper and unethical conduct of employees that the plaintiff
reported to management actually occurred in St. Clair County. One of the employees
who engaged in this conduct and whom the plaintiff reported to management was
Goetten, the other sales representative in the St. Clair County territory. Thus, some of 13 Goetten's alleged improper and unethical conduct occurred in St. Clair County.
¶ 33 In summary, there is a multitude of acts that occurred in St. Clair County from
which the plaintiff's causes of action for discrimination, retaliation, and retaliatory
discharge arose: (1) the plaintiff actually worked for Lilly in St. Clair County; (2) the
plaintiff and her supervisor were in St. Clair County when she was interviewed during an
investigation of her work conduct by Lilly's human resources consultant; (3) the plaintiff
was in St. Clair County when Lilly's human resources consultant told her not to talk to a
former coworker about that coworker's own possible discrimination suit against Lilly; (4)
the plaintiff's supervisor treated her differently in St. Clair County than other coworkers
outside of her protected class groups, and at least one of these coworkers also worked in
St. Clair County; (5) while she was physically located in St. Clair County, the plaintiff
reported to Lilly's human resources consultant that Lilly's salespersons were engaging in
improper conduct; and (6) some of the improper conduct that the plaintiff reported to
Lilly actually occurred in St. Clair County in that they involved Lilly's salesperson's
interactions with doctors and healthcare providers in St. Clair County. All of these
actions constitute part of the discrimination and retaliation against the plaintiff,
culminating in her termination from employment.
¶ 34 With the exception of where the termination itself occurred, the defendants ignore
what facts the plaintiff must prove to support the elements of her claims. Instead, the
defendants focus on the facts related to their defenses of those claims, namely, that
Trentacosti made statements against the plaintiff to Lilly through a hotline and that Lilly
performed an investigation in Indiana of the plaintiff's conduct as a result of those 14 statements and fired her as a consequence of that investigation. Those alleged facts are
the basis of the defendants' defense as to why the plaintiff was terminated. The facts of
the defendants' defense, however, are not relevant to whether venue is improper. The
plaintiff can choose a venue based only on the facts and elements of the causes of action
that she has to prove. The defendants ignore the plaintiff's allegations that her
termination was not due to an investigation of her conduct but rather because of
discrimination and retaliation. As in any employment termination case, there are
fundamental differences between the parties as to why the plaintiff was terminated.
However, the facts on which to base the determination of improper venue are those that
the plaintiff has to prove, not those that the defendant will argue in defense of the
plaintiff's claims.
¶ 35 The purpose of the venue statute is "to protect a defendant from having to defend a
lawsuit in a county with 'little or no relation to the defendant or the transaction that is the
subject of the lawsuit.' " Kaiser v. Doll-Pollard, 398 Ill. App. 3d 652, 662 (2010)
(quoting Jackson v. Reid, 363 Ill. App. 3d 271, 278 (2006)). Based on the facts set out
above, it can hardly be said that St. Clair County has little or no relation to this case. The
defendants argue (without any facts in support) that St. Clair County was just part of the
plaintiff's sales territory and that it was not the bulk of her sales territory. However, in
her affidavit, the plaintiff stated: "The majority of my sales calls took place in St. Clair
County since that was the largest part of my sales territory." She was not referring to
geographical size, but rather the size of the population of healthcare providers to whom
she was making sales calls. The affidavits submitted by the defendants said nothing 15 about what portion of the plaintiff's sales calls occurred in St. Clair County.
¶ 36 Based on the nature of this case–an employment discrimination and retaliation
case where the majority of the plaintiff's work for defendant Lilly was performed in St.
Clair County and where some of the illegal discriminatory and retaliatory conduct
allegedly committed by Lilly, which forms the factual basis of the plaintiff's complaint,
occurred in St. Clair County–the defendants did not satisfy their burden of proving that
the plaintiff's selection of venue in St. Clair County was improper. Accordingly, the trial
court erred in granting the defendants' motion to transfer venue to Jackson County.
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, we reverse the order of the circuit court of St. Clair
County granting the defendants' motion to transfer venue to Jackson County and remand
for further proceedings consistent with this decision.
¶ 39 Reversed and remanded.
16 2015 IL App (5th) 140170
NO. 5-14-0170
IN THE
FIFTH DISTRICT ________________________________________________________________________
SHARI TERADA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 12-L-458 ) ELI LILLY AND COMPANY and LORI ) TRENTACOSTI, ) Honorable ) Vincent J. Lopinot, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: March 26, 2015 ________________________________________________________________________
Justices: Honorable Bruce D. Stewart, J.
Honorable Richard P. Goldenhersh, J., and Honorable S. Gene Schwarm, J., Concur ________________________________________________________________________
Attorney Susan M. Andorfer, Susan M. Andorfer, Ltd., 111 West Washington for Street, Suite 200, Belleville, IL 62220 Appellant ________________________________________________________________________
Attorneys Troy A. Bozarth, HeplerBroom LLC, 130 North Main Street, for Edwardsville, IL 62025 (for Eli Lilly and Company); T. Christopher Appellees Bailey, Edward S. Bott, Jr., Kathi L. Chestnut, Greensfelder, Hemker & Gale, P.C., 10 South Broadway, 20th Floor, St. Louis, MO 63102 (for Lori Trentacosti) ________________________________________________________________________