Appeal from the Circuit Court of Cook County; the Hon. Francis
Barth, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Pat Witt and Sheila Mroczkowski, filed a complaint in the circuit court of Cook County seeking compensatory and punitive damages and injunctive relief against their ex-employer, Forest Hospital, Inc., and Dr. Robert Simon, administrator of the hospital. Each alleged that her employment as a nurse at the hospital had been terminated because she had provided information to the Guardianship and Advocacy Commission (GAC) and that this violated section 34 of the Guardianship and Advocacy Act (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 734). The GAC was permitted to intervene as a plaintiff, and it filed a complaint in intervention. After a bench trial, the trial court entered judgment in favor of the individual plaintiffs, awarded compensatory damages, awarded punitive damages in the amount of $5,000 to each individual plaintiff, and entered an order requiring Forest Hospital to restore them to the positions of employment they held prior to their terminations. Subsequently, the trial court entered an order establishing $2,976 as the amount of compensatory damages due to plaintiff Witt. Coplaintiff Mroczkowski filed a release and satisfaction of judgment and is not involved in this appeal. Defendants, Forest Hospital and Simon, argue on appeal that the trial court's findings that Witt was terminated and that she was penalized, sanctioned or restricted as a consequence of her dealings with the GAC were not supported by the evidence; that the award of compensatory damages to Witt was contrary to the manifest weight of the evidence; that Witt was not entitled to punitive damages; and that the order requiring Witt's reinstatement to her prior position of employment was erroneous. On cross-appeal, Witt contends that the finding of the trial court that she failed to mitigate her damages was erroneous.
Before addressing the factual issues raised by defendants, we must determine whether a nurse whose employment has been terminated by a hospital in violation of section 34 of the Guardianship and Advocacy Act has a private cause of action for retaliatory discharge against the hospital to remedy the violation. Section 34 provides:
"A person, who in good faith, files a complaint or provides information to the Commission or any division thereof, including private citizens and employees of service providers, shall not be subject to any penalties, sanctions, or restrictions as a consequence of filing the complaint or providing the information." (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 734.)
There is no dispute that Forest Hospital is a "service provider." Thus, if Witt, an employee of Forest Hospital, was penalized, sanctioned or restricted as a consequence of providing information to the GAC, she is entitled to any protection provided by section 34. Section 34, however, does not specifically authorize a private right of action.
Our supreme court has recognized the tort of retaliatory discharge as "an exception to the general rule that an `at-will' employment is terminable at any time for any or no cause." (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 128, 421 N.E.2d 876; Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 181, 384 N.E.2d 353.) In Palmateer, the supreme court established the contours of the tort: "The cause of action is allowed where the public policy is clear, but is denied where it is equally clear that only private interests are at stake." (85 Ill.2d 124, 131.) In other words, the foundation of the tort lies in the protection of public policy. 85 Ill.2d 124, 133.
• 1 By enacting the Guardianship and Advocacy Act, the General Assembly intended "to create the Guardianship and Advocacy Commission, to safeguard the rights and to provide legal counsel and representation for [the mentally ill and the developmentally disabled] and to create the Office of State Guardian for disabled persons." (See 1978 Ill. Laws 2020, 2028.) And section 34 of the Act clearly establishes that the public policy of this State is to protect employees of service providers, who in good faith, provide information to the GAC. Accordingly, we hold that a nurse whose employment has been terminated by a service provider, because she in good faith provided information to the GAC, has a private cause of action for retaliatory discharge against the service provider. Such an action is necessary to uphold and implement the public policy behind section 34 and the Guardianship and Advocacy Act as a whole. If we were to hold otherwise, the ability of the GAC to safeguard the rights of the mentally ill and the developmentally disabled would be substantially hampered.
Furthermore, we believe that an employee of a service provider is a member of a protected class for whose benefit section 34 was enacted; that implication of a private right of action for violations of section 34 is consistent with the underlying purpose of section 34 and of the Guardianship and Advocacy Act in general; that termination is an injury which section 34 was designed to prevent; and that implication of a civil private right of action is necessary to provide an adequate remedy for violations of section 34. All of these factors support the existence of a private remedy. See Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill.2d 379, 391, 432 N.E.2d 849; Sherman v. Field Clinic (1979), 74 Ill. App.3d 21, 29-30, 392 N.E.2d 154.
Defendants argue, however, that the trial court's findings that Witt was terminated and that she was penalized, sanctioned or restricted as a consequence of her dealings with the GAC were not supported by the evidence. The parties agree, with respect to these arguments, that the findings of fact of a trial court, sitting without a jury, will not be disturbed unless manifestly erroneous.
Pat Witt testified at trial that on September 24, 1979, she was hired to work as the head nurse of the Manor House Unit of Forest Hospital, a private psychiatric hospital located in Des Plaines, Illinois. Her duties included administration and the supervision of three patient treatment teams, and one of these teams was the orthomolecular team. During her employment at the hospital, she never received a written "work warning" from any employee superior in rank to her. Such warnings were used by the hospital as disciplinary measures.
According to Witt, on August 20, 1980, she had a telephone conversation with Dr. Melvin Nudelman, the physician in charge of the Manor House Unit, concerning a patient in the orthomolecular program who wanted to terminate his participation in the program. She told Nudelman that a doctor had threatened to have the patient committed, and that she intended to support the patient's position. Subsequently, the patient contacted the GAC, and on August 21, 1980, a staff attorney from the GAC, named Jerry Brost, came to the hospital and had two conversations with Witt. The following day, Witt made a telephone call from her home to the Human Rights Authority (HRA), a division of the GAC. She spoke to Ms. Betty McKee concerning rights violations and patient care issues. During the conversation, McKee told Witt that the GAC had already planned an investigation of Forest Hospital. On August 23, 1980, Witt spoke to Dr. Robert Simon, administrator of the hospital. She told him that the HRA was planning an investigation of the hospital, and that she had spoken to the HRA. She asked for his advice on how to prepare for the investigation, but he did not respond. On August 26, 1980, Witt spoke to Michael Artery, general attorney for the hospital, in his office at the hospital. She also told him that she had spoken to the HRA. On August 27, 1980, Witt had a conversation with Karen Sarasin, director of nursing at the hospital, and Witt told her about the upcoming investigation. Witt's next work day after the day of this last conversation was September 2, 1980. On that day, Witt met with Sarasin and Dr. Simon in Sarasin's office. Dr. Simon told Witt that he was relieving her from her position as head nurse, and he offered her a position as a staff nurse in another unit. That position was three grades below head nurse. Witt refused the offer, and after finishing her shift that day, she took accrued sick days off of work until September 10, 1980. On September 16, 1980, Witt testified at a commitment hearing on behalf of the patient. She had been subpoenaed by the GAC. On September 19, 1980, Witt and coplaintiff Mroczkowski, who also testified that her employment status at Forest Hospital was uncertain after she had had contact with the GAC, went to Sarasin's office at the hospital and requested from Sarasin a written statement of their employment status. Sarasin did not respond, and Witt told her that the Illinois Nursing Association had advised them that in the absence of such a written statement, they should report for duty to their respective positions at the hospital. Subsequently, Dr. Simon came to Sarasin's office. Dr. Simon shouted at them, and Witt asked him about her and Mroczkowski's employment status. Dr. Simon would not answer this inquiry, so Witt told him about the advice they had received from the Illinois Nursing Association. Dr. Simon responded that Witt and Mroczkowski were trespassing on hospital property and that if they reported for duty the next morning and entered any clinical areas, they would be arrested for assault and battery as well as trespassing. After this exchange, no one from the hospital, including Dr. Simon and Sarasin, ever called Witt concerning a position of employment for her at the hospital. Mroczkowski's testimony as to the confrontation with Dr. Simon on September 19, 1980, was substantially similar to that of Witt.
Defendants suggest it was merely coincidental that Forest Hospital's action with respect to Witt occurred at about the same time as her dealings with the GAC. They contend that the action in relieving her of her duties as head nurse was taken because of Witt's lack of support for the orthomolecular treatment program and because of an incident involving the mishandling of a patient by Witt. They rely primarily on certain testimony by Karen Sarasin and Dr. Robert Simon. Sarasin testified that Witt had difficulty administering and supervising the orthomolecular treatment program because of her negative and antagonistic attitude toward that program, and that Witt had made derogatory comments in her presence about Dr. Thomas Stone, the physician in charge of the orthomolecular team, and about the orthomolecular program itself. As director of nursing, it was Sarasin's job to evaluate the head nurses, including Witt. Sarasin made written good evaluations of Witt every two months, and according to Sarasin, Witt received evaluations. In the written evaluation of Witt's performance for February and March of 1980, however, Sarasin had written: "Pat is efficient in planning and organizing work, however, her disagreement with one of the treatment programs in the hospital contributes to an uncomfortable situation on the unit." The program referred to by this remark was the orthomolecular program. Dr. Simon testified that an incident involving Witt's mishandling of a certain patient on August 27 or 28, 1980, led to the decision to relieve Witt from her position as head nurse.
The trial court, after hearing the evidence, found that on September 2, 1980, Witt was demoted and that she was later terminated. Further, the trial court found that Witt was terminated because of her communication with the GAC, not because of apparent deficiencies in her work. These findings of fact cannot be said to be against the manifest weight of the evidence. Witt's testimony concerning the events of September 19, 1980, was sufficient to support a finding that her employment was terminated. Furthermore, her testimony was sufficient to support a conclusion that she was terminated because she had provided information to the GAC, notwithstanding the testimony of Sarasin and Dr. Simon. The trial judge, as the trier of fact, was in a position superior to this court to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We will not disturb his finding that Witt was terminated because of her communication with the GAC.
• 2 Defendants also argue that the relief awarded to Witt was improper. We first address the propriety of the order of the trial court enjoining defendants to restore Witt to her position as head nurse at Forest Hospital. Defendants rely on the well-settled rule that personal service contracts should not be specifically enforced. In Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App.3d 901, 904, 392 N.E.2d 126, the court stated: "Plaintiff's contract with defendant * * * was a personal service contract. It is well settled that, with reference to such contracts, when specific performance is sought, a court should not compel an employee to work for his employer, nor compel an employer to retain an employee in his service. [Citations.]" (See also Kurle v. Evangelical Hospital Association (1980), 89 Ill. App.3d 45, 53-54, 411 N.E.2d 326.) The Zannis court stated the reasons behind this rule. First, it would be impractical, if not impossible, for a court to provide the continuous supervision necessary to enforce an order for specific performance, especially where the contract calls for services which require special skill, knowledge, judgment or discretion. (73 Ill. App.3d 901, 904.) Secondly, since personal ...