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Beverly E. Robinson v. Morgan Stanley

August 31, 2011

BEVERLY E. ROBINSON, PLAINTIFF,
v.
MORGAN STANLEY, DISCOVER FINANCIAL SERVICES LLC, KAREN DOLLMEYER, CAROLE HOFFMAN, BERNICE JEE, KERRY PIERCY, DAVID SUTTER, VESELA ZLATEVA, DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Beverly Robinson ("Robinson") brings this lawsuit against Morgan Stanley, Discover Financial Services, LLC ("DFS"), Karen Dollmeyer, Carole Hoffman, Bernice Jee, Kerry Piercy, David Sutter, and Vesela Zlateva (collectively "Defendants"), alleging claims for retaliatory discharge (Count 1), violations of the Illinois Whistleblower Act, 740 ILCS 174/20 (Count 2), violations of the Illinois Personnel Record Review Act ("PRRA"), 820 ILCS 40/1, et seq. (Count 6), and violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. (Count 7).*fn1 The court has original subject-matter jurisdiction over Robinson's FMLA claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Robinson's state law claims pursuant to 28 U.S.C. § 1367.

Now pending before the court is "Defendants' Motion for Summary Judgment Against Plaintiff Beverly Robinson." (Dkt. No. 217.) For the reasons set forth below, Defendants' motion is granted in its entirety.

BACKGROUND*fn2

Beginning in October 2000, Robinson was employed by defendant Morgan Stanley in its Internal Audit Department, where she worked as an auditor. DFS is a wholly owned subsidiary of Morgan Stanley, and Robinson was stationed at DFS's Riverwoods, Illinois facility.

Beginning August 17, 2001, Robinson's job title was "EDP Audit Supervisor." From November 29, 2001, through January 29, 2002, Robinson took a leave of absence under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Robinson also took part-time FMLA leave in late February, 2002 through early March, 2002. When Robinson returned from her FMLA leave, she was told that her title had been changed to "Senior Associate Auditor," a change that Robinson considered to be a demotion. On February 20, 2002, Robinson was also put on a performance action plan. Robinson was put on a second performance action plan on October 23, 2003, which was later extended for 60 days until February 23, 2004.

On February 5, 2004, Robinson delivered a 23-page memorandum, plus exhibits, to DFS's Chief Financial Officer, Marty Slusarz ("February 2004 Memo"), detailing "numerous regulatory, legal, audit, accounting, IRS, personnel, and other issues." (Dkt. No. 251 ("Robinson's Am. Add'l Facts") ¶ 12.) Robinson's February 2004 Memo also alleged that the Vice President of Internal Audit, David Sutter, retaliated against Robinson for taking FMLA leave and for "raising issues," by criticizing Robinson in her performance reviews and demoting Robinson to Senior Associate Auditor. An investigative team was assembled by Morgan Stanley to review the allegations set forth in Robinson's February 2004 Memo, including representatives from an outside firm, KPMG. During a close-out meeting with Robinson in May 2004, Robinson was told that Morgan Stanley had found no evidence of intentional misconduct during its investigation. Additionally, on May 7, 2004, representatives from Morgan Stanley's Legal Department and Human Resources Department met with Robinson and informed her that they had found no evidence of retaliation.

On June 1, 2004, Robinson was placed on a third performance action plan. Two months later, on August 6, 2004, Robinson was given a job-in-jeopardy memo, and Robinson's employment with Morgan Stanley was involuntarily terminated on August 24, 2004.

LEGAL STANDARD

A grant of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A factual dispute is 'material' only if the dispute's resolution might change the outcome of the suit under the governing law." Spivey v. Adaptive Marketing LLC, 622 F.3d 816, 822 (7th Cir. 2010). "There is no genuine issue of material fact when no reasonable jury could find in favor of the nonmoving party." Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007).

When ruling on a motion for summary judgment, the court must consider the facts before it in the light most favorable to the nonmoving party, drawing all reasonable inferences in the nonmoving party's favor. McCann v. Iroquois Mem'l Hosp., 622 F.3d 745, 752 (7th Cir. 2010). The court does not make credibility determinations or weigh conflicting evidence. Id.

ANALYSIS

1. Retaliatory Discharge (Count 1)

Under Illinois law, a plaintiff alleging retaliatory discharge must prove that she was "(1) discharged; (2) in retaliation for her activities; and (3) that the discharge violates a clear mandate of public policy." Blount v. Stroud, 904 N.E.2d 1, 9 (Ill. 2009) (quoting Hinthorn v. Roland's of Bloomington, Inc., 519 N.E.2d 909, 911 (Ill. 1988)).The tort of retaliatory discharge has been narrowly construed by Illinois courts, and does not apply to redress "private and individual grievance[s]." Irizarry v. Ill. Cent. R.R. Co., 879 N.E.2d 1007, 1011-12 (Ill. App. Ct. 1st Dist. 2007) (quoting Sutherland v. Norfolk S. Ry. Co., 826 N.E.2d 1021, 1027 (Ill. App. Ct. 1st Dist. 2005)). The tort may apply, however, if "the discharge is for 'whistleblowing' activities, reporting illegal or improper conduct," id. at 1012, or if "the employee was discharged for refusing to violate a statute." Blount, 904 N.E.2d at 9.

In her First Amended Complaint, Robinson has alleged various reasons for her termination under the heading of "retaliatory discharge." First and foremost, Robinson alleges that she was terminated "in retaliation for good faith reporting of certain issues," including:

* violations and/or potential violations of various laws; regulations; Internal Revenue Code; public acts; and accounting and auditing standards, requirements, rules, regulations, and/or other determining factors;

* employee fraud;

* bad business practices;

* failure of certain employees to fulfill their fiduciary responsibilities;

* previous retaliation against [Robinson] for reporting, or attempting to report, illegal and/or other inappropriate acts and/or issues;

* other wrongful acts committed by, or on behalf of, or against the Defendant companies;

* other wrongful acts committed by or on behalf of the Defendants against the government;

* other wrongful acts committed by or on behalf of the Defendants against the public;

* other wrongful acts committed by or on behalf of the Defendants against clients and/or ...


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