Appeal from the Circuit Court of Cook County, Illinois No. 09 L 11982 The Honorable Raymond Mitchell, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
¶ 1 Plaintiff, Dorothy J. Lucas, M.D., filed a two-count amended complaint against defendant, County of Cook (Cook County). Cook County terminated Dr. Lucas from the Cook County department of public health (CCDPH)*fn1 after she refused to treat male patients or to attend training to treat male patients that had sexually transmitted diseases (STD). Count I of her complaint alleged that Cook County violated section 20 of the Illinois Whistleblower Act (Act) (740 ILCS 174/20 (West 2010)), while count II of her complaint contained a claim for common law retaliatory discharge.*fn2 Under both counts of her complaint, Dr. Lucas alleged that Cook County terminated her for reporting violations of title 68, section 1285.240, of the Illinois Administrative Code*fn3 (Administrative Code) (68 Ill. Adm. Code 1285.240 (Nov. 4, 2005)) to "the Illinois Office of Professional Regulations." Cook County filed a motion for summary judgment pursuant to section 2-1005(c) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1005(c) (West 2010)), which the circuit court granted as to both counts of Dr. Lucas's complaint. At issue is whether the circuit court properly entered summary judgment in favor of Cook County. We hold that the circuit court properly entered summary judgment in Cook County's favor on count I of Dr. Lucas' amended complaint because Dr. Lucas failed to establish that the activity Cook County wanted her to engage in, i.e., the treating of male patients or to attend training to treat male patients, violated any rule, law or regulation. The circuit court properly entered summary judgment in Cook County's favor on count II of Dr. Lucas's amended complaint because Dr. Lucas failed to articulate a clearly mandated public policy to support her claim of retaliatory discharge.
¶ 3 On July 27, 2011, the circuit court granted Cook County's motion for summary judgment. On October 3, 2011, the circuit court denied Dr. Lucas's motion for reconsideration. On October 17, 2011, Dr. Lucas timely filed her notice of appeal. On October 31, 2011, Dr. Lucas filed an amended notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶ 5 Dr. Lucas, a board-certified obstetrician and gynecologist, filed a two-count amended complaint against Cook County alleging that it retaliated against her for her reporting "the violation of state or federal law, rule or regulations by the [CCDPH]." Dr. Lucas began working for Cook County as the assistant medical director of the CCDPH and medical director of family planning and noncommunicable disease in September of 2001. In December of 2001, she was appointed as the medical director of the CCDPH, a position she held concurrently with her position as medical director of family planning and noncommunicable disease. In 2006, she "was demoted to the position of Medical Director in Family Planning and then to Clinic Physician."
¶ 6 According to Dr. Lucas, on August 24, 2008, CCDPH told her "that unless she agreed to provide [STD] services to male clients and to complete training for male clients by October 31, 2008, she could face disciplinary action up to and including termination." Dr. Lucas alleged she performed her four-year residency in obstetrics and gynecology without male patient contact.
She notified CCDPH "that 10 days of training at the County's Core Center would not qualify an obstetrician and gynecologist to examine or treat male or female patients for STD medical services." Dr. Lucas alleged further that CCDPH wanted her to work in the "Core Clinic," which she explained was a "specialty clinic for patients who are HIV positive, impacted with AIDS and other STD's." Dr. Lucas asserted that 10 days of training would be inadequate preparation for her to treat patients of different ages and sexes, and that this could result in substandard medical care and malpractice in the Core Clinic.
¶ 7 On September 4, 2008, Dr. Lucas notified CCDPH that she objected to treating male patients with only 10 days of training and that CCDPH "was exposing her to potential litigation for medical malpractice due to a demand that she practice outside her training and the usual and customary practice of medicine for an OB/GYN." On that same day, Dr. Lucas notified the "Illinois Office of Professional Regulations" that CCDPH "was in violation of the Medical Practices Act of 1987, section 1285.240 by requiring her to perform services as a physician without adequate training" and for offering her inadequate training. Dr. Lucas did not attend the 10-day training for treating males with STDs, which was held on October 30, 2008. CCDPH terminated Dr. Lucas on November 7, 2008.
¶ 8 Count I of Dr. Lucas's complaint alleged Cook County violated section 20 of the Act. 740 ILCS 174/20 (West 2010). Specifically, Dr. Lucas alleged Cook County took adverse action against her for reporting Cook County's "failure to comply with the Medical Practice Act of 1987, section 1285.240 and related rules or regulations." In count II of her complaint, Dr. Lucas made a claim of common law retaliatory discharge. Specifically, she alleged that her "employment ended on November 7, 2008 in retaliation for her engagement in protected activity by reporting violations of the Medical Practice Act of 1987, section 1285.240." She further alleged that her "discharge for reporting medical practice, safety, and health violations to the office of Professional Regulations is against clear mandated public policy which protects the health and safety of the citizens of Illinois." Dr. Lucas sought a declaratory judgment against Cook County for its violation of the Act. She also sought reinstatement to her position as a clinician physician, and damages, including front and back pay, future earnings, and an award of lost employee benefits. Additionally, she sought payment of her fees, costs, and prejudgment interest.
¶ 9 Cook County filed a motion for summary judgment pursuant to section 2-1005(c) of the Code. 735 ILCS 5/2-1005(c) (West 2010). Cook County argued that it was entitled to judgment on count I of Dr. Lucas's amended complaint because CCDPH never asked Dr. Lucas to participate in any illegal activity. Specifically, the treatment of both male and female patients for STDs did not violate any rule or regulation. Cook County also pointed out that section 20 of the Act did not provide Dr. Lucas with a cause of action against it. Additionally, Cook County asserted that the CCDPH's repeated requests that Dr. Lucas attend training to expand her practice to include treatment of male patients did not violate any law or regulation. Regarding count II of Dr. Lucas's amended complaint, Cook County argued there was no evidence that Dr. Lucas's termination was based on retaliation. Cook County attached numerous documents as exhibits to its motion, which we will address in turn below.
¶ 10 Exhibit A of Cook County's motion contained both an affidavit from Dr. Linda Rae Murray, the chief medical officer at the CCDPH, and a letter Dr. Murray wrote to Dr. Lucas. In her affidavit, Dr. Murray explained that Dr. Lucas provided services to female patients at the family planning clinic at CCDPH. Dr. Murray averred that the "scope of services" of the family planning clinic changed in 2008 by merging with the STD clinic. This was done "so that the physicians and other clinicians could provide care to both female and male patients" and because it "allowed the more efficient use of limited staff resources." One year before the merger occurred, all clinic physicians were notified of the changes. Dr. Lucas repeatedly stated she would not treat male patients as it was outside her area of training. Dr. Murray attested further that "[t]raining in the treatment of male patients for STD was repeatedly offered to Dr. Lucas, but she refused to even attend any such training." Dr. Lucas was the only physician to refuse to treat patients of both sexes. Dr. Murray stated that they "explored the idea of allowing Dr. Lucas to continue to treat only female patients, but it required the scheduling of two practitioners at a time, which did not allow for a full integration of the new service model." Dr. Murray attested that there is "[n]othing in the Medical Practices Act, the relevant Illinois Administrative Code, or other public policy that prohibits a physician from treating" patients of both sexes. Dr. Murray additionally stated that the physical examination is the only different aspect of treating male patients. On November 7, 2008, Dr. Lucas was terminated "[a]fter given a final opportunity and again refusing to be trained in the treatment of male patients." Dr. Murray attested that Dr. Lucas's termination was not made in retaliation and that "[t]he sole reason for Dr. Lucas' termination was that she could not provide medical services to both male and female patients as required by the Family Planning and STD clinic merger." The letter Dr. Murray wrote to Dr. Lucas, dated September 22, 2008, informed Dr. Lucas that she had to "complete the training *** on or before Friday, October 31, 2008." The letter informed Dr. Lucas, "[i]f you elect not to change your scope of practice you will have the sincere thanks of the Department for your years of service. Your last day of work will be Friday, November 7, 2008."
¶ 11 Exhibit B contained an affidavit from Helen Hayes, who served as special counsel for CCDPH in 2008, and a letter Hayes sent to Dr. Lucas. In her affidavit, Hayes attested that the family planning and STD clinics merged to allow "more efficient use of limited staff resources and was designed to be more convenient for clients, in that it allowed sexual partners to be seen during the same clinic session and to receive both Family Planning and STD services." Hayes reiterated that Dr. Lucas informed her supervisors that she would refuse to treat male patients and that she repeatedly refused to attend any of the training being offered. Hayes met with Dr. Lucas on November 6, 2008, whereupon Dr. Lucas "indicated that under no circumstances would she expand her scope of services to include male patients." The letter contained in Exhibit B was from Hayes to Dr. Lucas, and was dated February 20, 2009. The letter explained to Dr. Lucas the circumstances that led to her termination.
¶ 12 Exhibit C contained a discovery deposition of Dr. Lucas, and several letters and emails referred to in the deposition. In her deposition, Dr. Lucas was shown a letter she sent to "Dr. Martin" and "Mr. Barnes" dated April 6, 2007, in which she refers to a meeting with Dr. Murray on the merger of the family planning and the STD clinics. Dr. Lucas stated that she had not been trained to treat male patients. She also was shown a letter addressed to her from Dr. Williams, the clinical supervisor for STD and family planning clinics, dated August 29, 2008. In the letter, Dr. Williams reiterated to Dr. Lucas that the STD and family planning clinics would merge "by year-end" and that training was being offered for "clinicians who have not done STD clinic work." Dr. Williams explained that "[a]t the most recent federal audit of the Title X contract affecting Family Planning Clinics we were informed that we must offer family planning to males, as well as females." The letter also referred to Dr. Lucas's refusal to see male patients and informed her that she needed to complete training by October 31, 2008. Dr. Lucas attested that title X is a program that allocates funding for family planning clinics operated by the Department of Health and Human Services. Dr. Lucas was also shown a letter she sent to Dr. Williams, dated September 4, 2008. In that letter, Dr. Lucas explained that she had only been trained to treat female patients. She did not think that "[a] few weeks of mandatory STD training" was adequate preparation to treat male patients. Dr. Lucas stated in her letter that she would contact and seek counsel from several medical boards because she feared malpractice litigation. During her deposition, Dr. Lucas testified that she communicated with the American Medical Association, the American Board of Medical Specialists, American Board of Obstetricians and Gynecologists, the American College of Obstetrics and Gynecology, the Office of Professional Regulation, and the Chicago Medical Society. She did not have a copy of the letters she sent to the various boards during her deposition, but stated she would be willing to produce them. She could recall that a representative of "ISMIE" told her to get an attorney. Dr. Lucas admitted that she did not ever attend any STD training.
¶ 13 During her deposition, Dr. Lucas was also shown a letter she sent to Warran Batts, the chairman of the Cook County health and hospital board, dated October 6, 2008, in which she explained her training and why she believed that 10 days or 2 weeks of STD training was not sufficient to prepare her to treat male patients. After being shown the letter, Dr. Lucas testified that 10 days of training was inappropriate. She also testified that she never treated male patients during the course of her career, except under supervision for six weeks during medical school. When asked whether anyone from the CCDPH ever informed her that her termination was for retaliation for disclosing information in violation of the Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)), she answered, "No." She also answered, "No" when asked whether anyone had told her not to disclose any information to a government agency. Dr. Lucas did not have any conversations with anyone regarding what would be adequate training for the treatment of male patients. She did state that the Office of Professional Regulation, the American Medical Association, the American Board and the American College of Medical Specialist mandate that physicians practicing medicine incompetently should be reported. Dr. Lucas opined that six months to a year of training would have been adequate for her to treat male patients.
¶ 14 In response to Cook County's motion for summary judgment, Dr. Lucas argued that she was discharged for complaining to management and reporting unlawful or unethical behavior such that she stated a valid claim of retaliatory discharge. Therefore, Dr. Lucas asserted that her claim raised a genuine issue of material fact precluding summary judgment. Dr. Lucas also asserted that she raised sufficient issues of fact to support her claim under section 20 of the Act. Dr. Lucas attached excerpts from the deposition testimony of Dr. James Arthur Threatte to her response.*fn4 Dr. Threatte testified he is a board-certified obstetrician and gynecologist whose practice is limited to treating female patients.*fn5 He has known Dr. Lucas for 34 years. They met in medical school while they were both students. Since medical school, they have been friends, but have not had any professional relationship or worked together. He sees Dr. Lucas "infrequently" and was not compensated for his testimony. He agreed that neither the Medical Practices Act nor the Administrative Code prohibits doctors from treating patients of the opposite sex. He has never treated males for STDs, nor has he taught others how to treat STDs. He did, however, opine that 10 days of training for the treatment of male patients with STDs was inadequate. When asked what he believed would be adequate training for treating males with STDs, Dr. Threatte answered that he could only speak for what training he would need to treat males. He then answered that he thought three to six months of a combination of classroom and on-the-job training would be needed. He did not speak to anyone at the CCDPH about what training was being offered to Dr. Lucas.
¶ 15 In reply in support of its motion for summary judgment, Cook County argued that it was entitled to summary judgment because there was no violation of the Act. Specifically, Dr. Lucas did not show any law, rule, or regulation that prohibited a physician from treating patients of the opposite sex. In regard to Dr. Lucas's retaliatory discharge count, Cook County argued Dr. Lucas failed to demonstrate a violation of a public policy and that Dr. Lucas's decision to not treat male patients was her own personal choice which did not create a cause of action for retaliatory discharge. Cook County disputed that there was a genuine issue of fact concerning the adequacy of the training being offered to Dr. Lucas; arguing that it was not the court's role to review an employer's business decisions. Cook County pointed out that there is no rule against requesting an employee to attend training and asserted that Dr. Lucas could not possibly know whether the training being offered to her was adequate because she refused to attend. Cook County asserted that Dr. Threatte was not an expert as he does not treat male patients and has never taught the treatment of STDs. Cook County stressed that Dr. Lucas presented no evidence that CCDPH's decision to consolidate clinics violated any laws nor did she show that her termination was made in retaliation. Cook County attached to its reply a copy of Dr. Lucas's amended complaint and the full transcript of Dr. Threatte's deposition.
¶ 16 The circuit court granted Cook County's motion for summary judgment on both counts of Dr. Lucas's complaint. In its written order, the circuit court noted that for count I of her complaint, Dr. Lucas did not specify which parts of title 68, section 1285.240, of the Administrative Code Cook County allegedly asked her to violate. The circuit court found, however, that Dr. Lucas testified during her deposition "she was asked to violate sections 1, 1A, 1B, 1C, E, 2C, 2E, and F, which she alleges require a doctor to be competent to provide medical care." Accordingly, the circuit court found that the sections cited by Dr. Lucas do not prohibit a physician from treating patients of both sexes. The circuit court further found that Dr. Lucas repeatedly refused to attend the training as requested by Cook County. Dr. Lucas's termination did not violate the Act because "CCDPH's request that Dr. Lucas provide treatments she had previously provided to female patients to males and females after attending training was not a violation of the Medical Practice Act and Administrative Code §1285.240, and because CCDPH did not ask Dr. Lucas to do anything in violation of a law, rule, or regulation."
¶ 17 The circuit court found Cook County was entitled to summary judgment on count II of Dr. Lucas's complaint because Dr. Lucas failed to establish that the reporting of illegal activity caused her termination. The circuit court noted that "[e]ven if being asked to perform care without adequate training violates public policy, Dr. Lucas does not provide evidence that she was terminated for reporting this violation to a governmental agency or supervisor." The circuit court found that the pleadings showed that CCDPH restructured the clinics for efficiency reasons, and that Dr. Lucas knew of the restructuring in April of 2007. Dr. Lucas alleged that she was informed on August 24, 2008, that she would be terminated if she did not complete training. She did not report CCDPH until September 4, 2008, and October 6, 2008, respectively. The circuit court found that "CCDPH informed Dr. Lucas before she reported them that she might be disciplined for failing to complete training."
¶ 18 Dr. Lucas filed a motion to reconsider, which the circuit court denied. Dr. Lucas timely ...