*1 County Du Page court of of the circuit Accordingly, judgment the cause is remanded part, part affirmed in vacated is opinion. this damages in accordance with proper determination direc- cause remanded with part; part Affirmed in vacated tions. HUTCHINSON, JJ., concur.
BOWMAN al., HEALTH v. LEXINGTON Plaintiffs-Appellants, FELICIA FISHER et CARE, al., INC., Defendants-Appellees.
Second District No. 2 — 98—0072 Opinion filed December *2 RATHJE, J., dissenting. Elmhurst,
Terry O’Donnell, of appellants. for Neiman, Lorenzen, DaFonseca, K. Raquel Robert Donald R. B. all of Coff, Chicago, appellees. Holleb & of for opinion JUSTICE RAPP delivered the of the court: Plaintiffs, Coleman, employees Felicia Fisher and Latisha former of Lexington Care, defendant (Lexington), Health Inc. filed a com- plaint against Lexington and defendant Necum asserting Carmen implied statutory cause of pursuant action 3—608 of the section (210 (West 1996)). Home Nursing Care Act ILCS Plaintiffs 45/3—608 allege they harassment, intimidation, of retaliatory were victims and demotion as a result of their of and in reporting cooperation the investigation neglect of an elder abuse and case. The trial court plaintiffs’ pursuant dismissed case to section 2—615 the of Civil (735 (West 1996)), Law holding Practice ILCS that the Nurs- 5/2 —615 (West 1996)) ing Home Care did Act not seq. 45/1 —101 nursing employees. create a for private cause action home issue Act Nursing the for is whether presented decision nursing employ- cause of action private creates impliedly cause action of such implication conclude that ees. We Home Nursing Care legislative context of suggested by is enacting in necessary accomplish legislature’s purposes statute. We therefore reverse and remand. dispute alleged plaintiffs’ facts
Although defendants this comes before us after a motion to dismiss complaint, because allega well-pleaded factual granted, accept must as true the was we legal plaintiffs’ complaint. contained tions but conclusions America, 376, F.A., 3d v. Savings See Talbert Home (1994). repeated this are necessary Those as decision alleged facts below. Lombard,
Lexington operates owns and home located (the by the Public Health Lexington Department Illinois. is licensed Home Care Act. Defendant Department), pursuant (Necum) acting as employed Lexington Carmen Necum was its director. (Coleman) practical
Plaintiff Coleman is a licensed nurse Latisha 17, by Lexington May 1992 until October employed from (Fisher) practical 1996. Plaintiff Felicia Fisher also a licensed nurse is employed by Lexington who was from March 1992 until October Throughout nor had employment, neither Coleman Fisher *3 reprimanded job their perfor- ever been or otherwise criticized about mance. assigned Lexington’s
Plaintiffs to the same floor of Lombard were nursing home, they morning duty July and were both on the Windt, morning, elderly 1996. That Alice an resident the home, dining request supervi- was removed from the room at the a inordinately Upon felt re- disruptive. sor who that she had been her room, dining room, from the Mrs. to moval Windt was returned her Thereafter, where she left the door a unattended with shut. hanging discovered from her lap nurse’s assistant Mrs. Windt bar. immediately sought plaintiffs, nurse’s assistant the assistance Unfortunately, responded attempted to Mrs. and resuscitate Windt. Mrs. Windt died. pursuant
In accordance with her duties the facts Act, began writing relating Coleman the report then incident so, As she did surrounding and circumstances Mrs. Windt’s death. however, writing her she the supervisor stop demanded that supervisor and take no further action until another arrived. Coleman pos- to chart as soon as had never before been instructed not events sible.
Fisher contacted Mrs. son to inform him of her death. Windt’s As so, however, she did the supervisor instructed Fisher and Coleman to Shortly have no further family. conversations with the Windt thereaf- ter, inquired Mrs. children Windt’s arrived and of Fisher Coleman and happened what had to their mother. Coleman informed Mrs. Windt’s they children that could not discuss the circumstances of Mrs. Windt’s death. Mrs. Windt’s son later approached Coleman and Fisher privately again happened. and asked what had Fisher responded that he order autopsy. should approached
Mrs. son then supervisor Windt’s on duty nurse he but was told that would have to until talking wait she finished waited, Fisher and supervisor Coleman. As he the nurse summoned Coleman into her office and told they get story her that had to their they and straight had word the chart way. Coleman was further “act professional, admonished to and player,” be team their sling.” because “ass is responded Coleman that she would result, not prepare report. a false As a Coleman was of her relieved duties, chart-preparing supervisor nurse prepared the incident report relating death, to Mrs. even though supervisor Windt’s had present. supervisor not been The nurse then advised Mrs. Windt’s son that his death have appeared mother’s been the result of natural causes. Mrs. Windt’s son then asked that an autopsy performed be on body. his mother’s morning, Lexington’s administrators,
Later that one of along with supervisors, two confronted Coleman and Fisher about Mrs. Windt’s death and the impending investigation. Fisher and Coleman were ad- say they vised not to that when they found Mrs. found her Windt “cold and stiff’ would because “it make us look bad.”
Mrs. family Windt’s filed an complaint administrative with the death, Department against Lexington connection her with Department investigated gave Mrs. Windt’s death. Plaintiffs Department police testify officers statements and agreed to about Mrs. at inquest. Windt’s death the coroner’s allege agreed cooperate
Plaintiffs that after with they investigation Lexington’s supervisors engaged harassing conduct. following This the facility they included them around as performed rounds, them, scolding berating They them. were being unprofessional, doing poor working accused of job, and too slowly. During pendency of the investigations, supervisors told *4 Fisher and they get Coleman that should team players any- be and not into body Additionally, reports trouble. written that criticized their work in their personnel were filed records. Plaintiffs allege prior criticized, to the death of no supervisor Mrs. Windt had ever
551 work with their dissatisfaction of, expressed otherwise complained or per- job for their efforts praised rather, always had been but, they of the another floor also transferred formance. Fisher was home. 1996, 18, 17, On October on October Lexington fired Fisher by imposed conditions due to work resigned, allegedly Coleman against complaint 12, 1997, filed May plaintiffs Lexington. On 3—608 of section defendants violated alleging that defendants cooperating them for retaliating against by Care Act Nursing Home investigation. Department’s with the plaintiffs’ motion to dismiss 1, 1997, Lexington filed a August
On Practice Law. 2—615 of the Civil to section complaint pursuant (1) theories: dismiss on two its motion to Lexington predicated retaliatory discharge because she had no cause of action Coleman (2) provide Act did not Nursing Home Care that the resigned; retaliatory discharge. of action for private right dismiss, motion to arguments on the their parties briefed motion, granting granted the motion. whereupon the trial could be right no of action private concluded that the trial court After a series Home Care Act. under the implied plaintiffs leave to amend allowing plaintiffs the matter and continuing of orders There- complaint. on their elected to stand complaint, plaintiffs case with after, dismissing plaintiffs’ an order the trial court entered appealed. Plaintiffs prejudice. pleadings on the unless dismissed
“[N]o cause of action should be will entitle proved of facts can be which clearly appears it that no set Co., 502, 108 Ill. 2d Tractor Caterpillar to recover.” Wheeler v. (1985). earlier, are to be allegations complaint As noted 379) (see Talbert, at and are to be App. 265 Ill. 3d taken as true See Wait v. plaintiff. favorable to the interpreted light in the most (1986). 703, Bank/Danville, 3d First Midwest are aware of no Illinois. We impression This is a case of first action addressing implication prior cases Nursing Home Care 3—608 of the language virtue of the of section provides: 3—608 Act. Section transfer, dis- agents employees or shall
“A licensee or its resident, a evict, harass, dismiss, against a retaliate charge, or makes a agent who or representative, or resident’s in an action under 107, brings testifies or report under Section 2— under Section 607, complaint files a through or Sections 3—601 3— complaint.” (Emphasis 702, testimony, or report, because 3— 1996). added.) 45/3—608 for an relief however, any precise fails to articulate Section 3— *5 employee who suffers by employer retaliation and does not specifi- cally private authorize a right of action.
Several provide Illinois statutes prohibitions similar against retal- iatory by employers. example, For section 9.1 of the Abused Neglected and Child Reporting provides: Act employer discharge, “No shall suspend, demote or or threaten to
discharge, suspend, demote or any or in manner discriminate against any employee who any good makes faith oral or written report suspected of neglect, child abuse or or who is or will be a testify witness report any or investigation or proceeding concerning a of suspected child neglect.” abuse or 325 ILCS 5/9.1 1996). The legislature recently has also amended the Elder Abuse and (West 1996)) Neglect Act et seq. provide the follow- 20/1 ing: employer
“No shall discharge, suspend, demote or or threaten to discharge, suspend, demote or any or in manner discriminate against any employee who any good makes faith oral or written report suspected abuse, neglect, elder exploitation or financial or who is or will be a testify any witness or investigation proceed- or ing concerning abuse, suspected elder neglect, or financial exploitation.” 628, 4.1, § Pub. Act January eff. 90— 20/4.1). (adding 320 ILCS Additionally, section 34 of the Guardianship Advocacy and provides:
“A person, faith, in good complaint provides files a or infor- mation to the any thereof, Commissionor division including private citizens and employees of service providers, subject shall not be any penalties, sanctions, or consequence restrictions as a filing complaint the or providing the information.” 20 ILCS 3955/34 (West1996). There are no cases interpreting section 9.1 of the Abused and Ne glected Child Reporting Act. Since section 4.1 of the Elder Abuse and Neglect Act yet has not effective, become we have no case law interpreting case, Only it. one Inc., Witt v. Forest Hospital, 115 Ill. App. 3d (1983), has interpreted section 34 of the Guardianship Advocacy and Act. Witt,
In plaintiff alleged the employment that her as a nurse had been terminated provided because she information to the Guardian ship and Advocacy Commission. plaintiff alleged that her termina tion violated section 34 Guardianship of the Advocacy and Act. The court held that a private cause of action retaliatory discharge may be maintained who was fired in violation of a statute protecting persons providing information to the Guardianship and Advocacy Witt, Commission. App. 115 Ill. 3d at 484. necessary action is cause of such a determining statute, the the behind public policy implement
uphold Guardianship enacting intent legislative in Witt found that “ legal provide rights ‘safeguard Advocacy Act was developmen ill mentally and the [the and representation counsel The court Witt, 3d at 484. App. 115 Ill. [Citation]” ***.’ tally disabled] clearly the Act establishes that “section 34 of further reasoned provid service employees of protect of this State is to public policy [Guardianship faith, information to the ers, good provide inwho Witt, 484. The court fur App. 3d at Advocacy Commission].” ther stated: otherwise, ability [Guardianship and
“If we were to hold mentally ill rights safeguard Commission] to Advocacy substantially ham disabled would be developmentally and the Witt, pered.” *6 2d v. 89 Ill. Sawyer Realty Group, Corp., Inc. Jarvis
Relying on (1979), Clinic, 21 (1982), App. v. Field 74 Ill. 3d 379 and Sherman court Witt stated:
“Furthermore, provider of a service we believe that an benefit section 34 was protected is a member of a class whose enacted; private right of action for violations implication of a purpose of section underlying with the of section 34 is consistent Advocacy general; Act in Guardianship 34 and of injury designed prevent; 34 was termination is an which section necessary to right of action is implication and that of a civil 34. All of adequate remedy for violations of section provide Witt, private remedy.” a 115 support these factors the existence of App. Ill. 3d at 484. examined section 3—608 only
The Illinois which has Center, Nursing Nursing Care Act is Shores v. Senior Manor Home (1988). Shores, nursing Inc., plaintiff, a App. 164 Ill. 3d 503 retaliatory discharge. action for employee, filed common-law relied Shores, upon in Shores App. 164 Ill. 3d at 509. Act) (Ill. (the 1985, 1979 Rev. Stat. Nursing Home Care Reform Act of (now Nursing Home 111½, et recodified as par. seq. ch. 4151—101 1996))) public Act, to state seq. Care 210 ILCS 45/1—101 her cause of action. rely upon the Act to create policy but did not believe Shores, stated that it did App. 164 Ill. 3d at 509. The court to dimin 3—608 were intended express protections that the of section cause of action for retalia rights to a common-law employee’s ish Shores, The court further Ill. 3d at 509. tory discharge. provisions it clear that the legislature noted that has made “[t]he means Reform Act are not the exclusive Nursing person which a can seek relief for coming situations under the Act.” Shores, 164 Ill. App. 3d at 509. The court thus concluded that the plaintiff had stated cause of action for retaliatory discharge by alleg ing that she discharged reporting neglect instances of at the Shores, facility. 164 App. that, argue given decision,
Defendants the Shores Fisher could pursued have a common-law retaliatory discharge claim to redress her injuries, which would have eliminated the need for this court to analyze implied whether an private right of action exists under section Nursing 3—608 of the Home Care Act. argument Defendants’ is un- persuasive. The issue in Shores was whether the common-law tort of retaliatory discharge was repealed by implication, not whether section 3—608 implied private cause harassment, of action for transfer, and other retaliatory employers. Thus, conduct of decision Shores preclude does not an implied private cause of action for retaliatory conduct by employers.
The common thread between the Abused
Neglected
Child
Reporting Act, the Elder
Neglect Act,
Abuse and
the Guardianship
Act,
and Advocacy
and the Nursing Home Care Act is that each of the
acts is
safeguard
intended to
rights
persons
vulnerable
of our
(i.e.,
society
minors, elderly persons, mentally ill and developmentally
homes).
persons,
elderly
disabled
residents of nursing
See Harris
(1986).
v. Manor
Corp.,
350,
Healthcare
111 Ill. 2d
The General
Assembly
enacted the
Home Care Reform Act of 1979 amid
“
concern
reports
over
‘inadequate, improper, and degrading treat
patients
ment of
in Harris,
homes.’ [Citation.]”
We are confronted here with a situation involving employer
*7
against
retaliation
“whistle blowers.” A whistle-blower is an employee
who refuses to
in
engage
reports
employer’s
violations of
and/or
regulations
laws or
pertaining
public
to
safety
general
or the
welfare.
(6th
See
Dictionary
1990);
Black’s Law
Wheeler,
ed.
see also
Ill. 2d at
supreme
510-11. As our
court stated in Wheeler and Palma
“
teer,
‘[t]here is no public policy
important
more
or more fundamental
than the
favoring
protection
one
the effective
property
of the lives and
” Wheeler,
511; Palmateer,
of citizens.’
108 Ill. 2d at
***
“The protection
property
of the lives and
of
important
citizens
is as
and
protecting
fundamental as
them from
of
crimes
violence ***.”
Wheeler,
Section 2—107 the Nursing of Home Care Act it provides that or ne- aware of abuse who becomes any facility employee duty is the of Long Term Neglected and the Abused glect report provided to it as (West (210 seq. ILCS Reporting Residents Facility Care 30/1 (West 1996). 1996)). to abuse report The failure 210 ILCS 45/2—107 prosecu- to criminal nursing employees home neglect subject could or (West 1996). nursing license Additionally, a tion. See 210 ILCS 30/4 placed probation, on or the nurse suspended revoked or could be or report abuse disciplined for failure or otherwise reprimanded, 1996). fail Employees who 225 ILCS neglect. generally See 65/25 subject to Act would also be Nursing Home Care comply with their employer. dismissal vigilant depends Home Care Act on Nursing
Enforcement of the facilities, assure their their residents and employees, who watch over abuses, Act, coop- and Nursing compliance with the proceedings court related to the any investigation erate with Nursing Failing protect employ- Home Care Act. enforcement of the effect by employers chilling conduct would have a retaliatory ees from cooperation nursing employees. on the of home Care Act makes it unlawful Nursing Section 3—608 of the Home evict, harass, dismiss, an transfer, discharge, against or retaliate investigation an elder employee reports cooperates of who transferred, Thus, discharged, if neglect plaintiffs abuse and case. were evicted, harassed, dismissed, against consequence retaliated as a or concerning reporting, testifying, filing complaint or elder abuse resident, they any protec are entitled to neglect of a Witt, 115 Ill. 3d at 483-84. provided by tion section 3—608. See Nursing provides Home Care Act sanc- While section 3—318 of retaliatory against employer engages tions for an Home Care Act employee reports Nursing violations of the (West 1996)), any afford relief specifically it does not 45/3—318 conduct, retaliatory including to an who bears the brunt Thus, harassment, intimidation, demotion, transfer. degradation, employer on an who has there is no incentive to “blow the whistle” Nursing violated the Home Care Act. implied civil
Although recognized Illinois cases have recognized an discharge, Illinois has not retaliatory of action for actual dis any injury short of implied statutory cause of action However, unique under the context no case has been raised charge. against retal prohibitions specific Home Care Act and its iatory conduct. Inc., 164 Sparta, Buchheit in Zimmerman v. supreme Our retaliatory cause of action for (1994), imply
Ill. 2d 29 a new refused failed compensation demotion in a workers’ because *8 present to a compelling showing necessity to create such a cause plaintiffs of action. We believe the in op- this should have the portunity present to their case. (1) conclusion, we believe retaliatory that employers
against employees
cooperate
in the investigation of el
der
and neglect
abuse
cases contravenes the public policy of this State
(2)
safeguard
the rights
residents;
employees of
nursing home facilities are
protected
members of a
class for whose
(3)
promulgated;
benefit section 3—608 was
retaliatory conduct
anis
(4)
injury which section
designed
prevent;
3—608 was
implica
private right
tion of a civil
necessary
provide
action is
an ade
quate remedy for violations of section 3—608 and is consistent with
underlying purpose
of section 3—608 and the Nursing Home Care
(5)
in general;
Act
section 3—714
ILCS 45/3 —714
1996)) clearly indicates that the remedies available are not limited to
those enumerated in
Sawyer Realty,
Act. See
391; Witt,
For the foregoing the order of the Page circuit court of Du County dismissing plaintiffs’ complaint reversed, is and the cause is remanded for further proceedings consistent with this opinion.
Reversed remanded.
GEIGER, EJ., concurs. RATHJE, dissenting:
JUSTICE I respectfully dissent. It is unfortunate that the majority has chosen not to the implications supreme address of our court’s decision in in Instead, Zimmerman the context of the present major case. ity limits its discussion of Zimmerman to distinguishing it on the basis that the there failed to make a compelling case for the cre ation of a retaliatory cause of action for demotion and that plaintiffs in this case deserve an opportunity present their case. case, Just as in the present Zimmerman the plaintiffs lawsuit was dismissed Zimmerman, for failure to state a cause of action. 164 Ill. 2d at 31. The supreme court felt no need to allow Ms. Zimmerman the opportunity develop majority her case as the permitting is plaintiffs present Moreover, to do in the I opinion case. am of the supreme sending Zimmerman our a clear message statute, the creation of a new under a such as the one the case us, Zimmerman, legislature. before is a matter best left to the 2d 29. Zimmerman, I upon
Based would conclude that this court should under the retaliatory conduct cause of action for imply provided has not such legislature Nursing Home Care where and, therefore, I action, dissent. cause of *9 ILLINOIS, Plaintiff-Appellant, v. GARY THE
THE PEOPLE OF STATE OF LENZ, Defendant-Appellee. L.
Second District No. 2 — 98—0079 Opinion filed December (Martin Roddick, Attorney, Charles W. State’s of Galena P Moltz and Office, Gregory Slovacek, Attorneys Appellate L. both of State’s Prosecutor’s counsel), People. for the Beckmire, Olson, Vogt, Garrity, Vogt Freeport, appel- John H. & lee.