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Rozier v. St. Mary's Hospital





APPEAL from the Circuit Court of St. Clair County; the Hon. CARL H. BECKER, Judge, presiding.


Rehearing denied October 8, 1980.

Plaintiff, Alyce Rozier, filed a complaint alleging she was fired from her job at defendant St. Mary's Hospital (Hospital) in retaliation for reporting incidents which occurred there to a local newspaper. The circuit court of St. Clair County granted defendants' motion for summary judgment. We affirm.

Plaintiff's appeal concerns only the first two counts of her six-count final complaint. In her complaint she alleges that on or about December 23, 1974, she witnessed "various abuses and improper conduct by other employees of the hospital, directed toward the patients for which the plaintiff had responsibility." She reported the incidents to her superiors, who "took no action." On the following day, an article in a local newspaper described the incidents she witnessed. Plaintiff alleges she was accused of complicity regarding the article. The complaint does not allege the accusations were false. Rather, she states, "even if true," she was lawfully invoking her first amendment right of free speech. The same date, she submitted to a polygraph examination, following which she was immediately discharged. Her termination was, she alleges, "intentional, malicious, and was calculated to cause harm, injury and damage to plaintiff." Plaintiff sought money damages for lost wages and other injuries.

Defendants moved for summary judgment based on certain exhibits and the discovery depositions of Ms. Rozier, defendant hospital administrator, Carl G. Jaeger, and defendant hospital director of nursing, Rosemary Gallego. Ms. Rozier testified in her deposition that she had not told anyone outside the Hospital of the December 23 incidents. She specifically denied relating those matters to a taxi driver and a neighbor and denied telling Ms. Gallego that she had done so. She admitted having spoken to someone from a newspaper, but only after she had been fired. She testified both the Hospital and good general nursing practice required preservation of patients' confidentiality, including matters relating to their visitors. She testified that Mr. Jaeger had told her he had been informed that a hospital employee had given the newspaper the information for the December 24 story. When Ms. Rozier investigated, a newspaper employee told her that an anonymous telephone caller supplied the information. Ms. Rozier related that she had maintained her innocence during her December 24 polygraph examination, which she had flunked, the failure of which had resulted in her firing. She testified she had no employment contract with the Hospital and had not been promised any specific duration of employment.

Ms. Rozier's testimony reveals little about the December 23 incidents. She testified as follows:

"Q. Did you tell them anything about a patient being allegedly sexually assaulted here in the hospital?

A. No, I did not.

Q. Did you tell them anything about any alleged intoxication of any of the employees of the hospital?

A. Yes, I did.

Q. Okay. When was that?

A. In January.

A. * * * And I told him, I said, `I've lost my job, I was fired' and I didn't know nothing about anybody getting sexually molested. * * *"

Beyond the above answers the transcript of her discovery deposition does not suggest the nature of the December 23 incidents.

The manner in which Ms. Gallego first learned of the December 23 incidents does not appear of record. Ms. Gallego testified in her deposition that she had arrived at the hospital where she had met Ms. Rozier and the head of personnel, apparently on the night of December 23 while the 3 to 11 p.m. shift including Ms. Rozier was still on duty. Ms. Gallego testified that the next day all staff members on that shift were questioned in an effort to find out who had leaked information to the newspaper. All took polygraph tests. Ms. Rozier and the examiner both reported that Ms. Rozier had failed the test. According to Ms. Gallego, Ms. Rozier denied having contacted the newspaper but admitted discussing the incidents with a taxi driver and her neighbor. Ms. Gallego "laid off" Ms. Rozier, who threatened more adverse publicity and departed. Later a second newspaper article appeared referring to a reporter's discussion with Ms. Rozier.

Mr. Jaeger testified in deposition that Ms. Rozier had had no employment contract and could have been fired with or without cause. He stated Ms. Rozier had been fired because she had told him she had told no one of the December 23 incidents and the polygraph test had shown she was lying; thus, she was fired for lying and for revealing confidential information.

Mr. Jaeger testified he had fired two hospital heads of departments because of the December 23 incidents. One, the head of security, had a conversation with a female patient in her room which involved the subject of oral sex. The other, the head of personnel, was in the same patient's room after regular visiting hours in an intoxicated condition and was removed from the room by Ms. Rozier. Mr. Jaeger testified he first learned of the incidents at approximately 9:30 a.m. December 24 from Ms. Gallego, at which time he sent his assistant to interview the two patients in the room. He received the above account of the incidents from his assistant. After Mr. Jaeger fired the two department heads, a police sergeant came to the Hospital and asked to speak to the patient involved, but she declined to see him or complain.

Defendants moved for summary judgment on the counts appealed on the basis that Ms. Rozier was not employed for any specific duration and that the relationship between Ms. Rozier and the Hospital was terminable at will without cause or justification. The circuit court, granting defendants' motion, held no cause of action existed in Illinois for "retaliatory discharge" and there was no breach of contract as Ms. Rozier's employment was not for any specific duration.

• 1 Plaintiff urges that subsequent to summary judgment in the instant case a cause of action for retaliatory discharge has been recognized in Illinois. (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353.) She maintains defendants forced her to "choose between (1) retention of her job and (2) remaining silent as to alleged abuses and improprieties which were directed at patients for which she had direct responsibilities." We note that in her deposition testimony the plaintiff stated that she did in fact remain silent as to those matters. Accordingly, it readily can be seen that if her deposition testimony in this regard was true her firing was merely an exercise of an employer's judgment and no significant public policy issues are involved. In general, in the absence of a contract of employment of some specified duration, an employer may discharge an employee whenever and for whatever cause he chooses without incurring liability. (Kelsay v. Motorola; Roemer v. Zurich Insurance Co. (1975), 25 Ill. App.3d 606, 323 N.E.2d 582.) Plaintiff under the general rule would have no cause of action based on her discharge. Accordingly, we assume for the sake of argument, as plaintiff does, that she did in fact divulge the above-mentioned information.

Summary judgment was proper "if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Ill. Rev. Stat. 1977, ch. 110, par. 57(3).) The parties agree the dispositive issue is whether a cause of action was presented here. The parties devote much of their argument to the issue of how broadly we should construe the decision of Kelsay v. Motorola. While recognizing the general rule that an at-will employee may be terminated with or without cause at any time, the supreme court in Kelsay recognized a cause of action for retaliatory discharge where the plaintiff was fired for making a claim under the Workmen's Compensation Act. (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) Plaintiff urges that "[this] court should read the Kelsay decision as controlling in establishing a public policy exception to the termination at-will rule in both statutory and non-statutory contexts." We do not view Kelsay so broadly. We are guided in our interpretation by the Kelsay majority which stated:

"The Workmen's Compensation Act, in light of its beneficent purpose, is a humane law of a remedial nature. [Citation.] It provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of this State. Consequently, its enactment by the legislature was in furtherance of sound public policy. [Citation.] We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge.

We are not convinced that an employer's otherwise absolute power to terminate an employee at will should prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen's Compensation Act. As we have noted, the legislature enacted the workmen's compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act." (Emphasis added.) 74 Ill.2d 172, 181-82, 384 N.E.2d 353, 357.

In our view Kelsay was a decision of narrow applicability intended only to promote the public policy furthered by the Workmen's Compensation Act. Few, if any, considerations of public policy justify a deviation from the employer's general privilege to fire an at-will employee, with or without just cause. We note that in Kelsay our supreme court carefully distinguished and declined to overrule Teale v. Sears, Roebuck & Co. (1976), 66 Ill.2d 1, 359 N.E.2d 473. In Teale the supreme court held that a discharged employee had no cause of action for compensatory and punitive damages when he was fired in violation of what was referred to as the "Age Discrimination Act" (Ill. Rev. Stat. 1975, ch. 48, pars. 881 to 887), despite the legislature's expression of the public policy considerations underlying the Act. (See Ill. Rev. Stat. 1975, ch. 48, par. 881.) We note additionally the recent opinion of Palmateer v. International Harvester Co. (1980), 85 Ill. App.3d 50, 406 N.E.2d 595. There, the court held plaintiff had stated no cause of action for wrongful discharge where he alleged he was fired for cooperating with a ...

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