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Young v. Alden Gardens of Waterford, LLC

Court of Appeals of Illinois, First District, Third Division

March 31, 2015

BETHANY YOUNG, Plaintiff-Appellee and Cross-Appellant,
ALDEN GARDENS OF WATERFORD, LLC, Defendant-Appellant and Cross-Appellee (Patricia McCormick, Plaintiff; and the Alden Group, Ltd., Defendant)

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Appeal from the Circuit Court of Cook County. No. 10 L 13167. Honorable Ronald Bartkowicz, Judge Presiding.

For APPELLANT/CROSS-APPELLEE, Law Offices of Chicago Kent, Chicago, IL (Laurie E. Leader and Rebecca Graham, of counsel).

For APPELLEE/CROSS-APPELLANT, Law Office of Jeffrey Friedman, P.C., Chicago, IL (Jeffrey Friedman, of counsel) and Leslie J. Rosen Attorney at Law, P.C., Chicago, IL (Lesli J. Rosen, of counsel).

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.



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[¶1] Defendant-appellant Alden Gardens of Waterford, LLC, appeals from the judgment entered on a jury verdict finding it liable under the Illinois Whistleblower Act (740 ILCS 174/20 (West 2010)) for retaliating against a former employee, plaintiff-appellee Bethany Young, based on her refusal to engage in conduct that would have resulted in a violation of the law. On appeal, Alden Gardens contends that the trial court erred in denying its motion for summary judgment on the Whistleblower Act claim and in denying its motions for a directed verdict and judgment notwithstanding the verdict (judgment n.o.v. ). Alden Gardens also argues that the verdict was the product of trial errors and was against the manifest weight of the evidence and on those grounds seeks a new trial. Finally, Alden Gardens disputes the amount of attorney fees awarded to counsel for Young. On cross-appeal, Young argues that the trial court erred in awarding her less than all of the attorney fees and costs sought. We find no error and affirm.


[¶3] Alden Gardens, a licensed long-term care facility, employed Young as a registered nurse from January 10, 2008, to April 22, 2010. Young and coplaintiff Patricia McCormick, who was also employed at Alden Gardens, filed a complaint against Alden Gardens and The Alden Group, Ltd., alleging retaliation in violation of the Nursing Home Care Act (210 ILCS 45/3-810 (West 2010)) (count I), the Whistleblower Act (740 ILCS 174/30 (West 2010)) (count II) and common law retaliatory discharge (count III). McCormick has not appealed an adverse jury verdict and is not a party to this appeal.

[¶4] The Alden Group is a holding company that owns stocks and other interests in various nursing home facilities, including Alden Gardens.[1] Alden Gardens is a sheltered care facility. Such facilities are for independent adults and residents have private apartments with kitchen facilities. In contrast, in a skilled nursing facility residents share rooms and the facility has hospital beds and provides more in-depth health care.

[¶5] A. The Amended Complaint

[¶6] According to the amended complaint, from October 2009 to April 2010, Young and McCormick witnessed several instances of staff errors that jeopardized resident safety and constituted abuse or neglect of

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residents at Alden Gardens. As relevant to this appeal, one such instance occurred on November 20, 2009 when Young's supervisor, Sarah Werrline, directed Young to help her falsify residents' medication administration records. Young refused.

[¶7] Young generally alleged that following the November 20, 2009 incident, her work hours were reduced, she was not offered available shifts, and her performance evaluation ratings declined. Young ultimately resigned on April 22, 2010. She claimed she was constructively discharged.

[¶8] Although the amended complaint alleged other conduct by Young and McCormick directed at bringing shortcomings at Alden Gardens to the attention of the Illinois Department of Public Health (the Department), the trial court ultimately determined that those allegations were not relevant because both plaintiffs left Alden Gardens before Alden Gardens received formal notice of the Department's complaint. As Young does not challenge this limitation on the evidence presented at trial, we will not summarize those allegations here.

[¶9] B. Procedural History

[¶10] On May 29, 2012, after the close of discovery, trial was set for December 3, 2012; dispositive motions were due by July 20, 2012. On July 20, Alden Gardens filed a motion for summary judgment.

[¶11] On November 19, 2012, the trial court granted Alden Gardens' motion for summary judgment in part. The court ruled in favor of Alden Gardens on count I, Young's claim for retaliation under the Nursing Home Care Act, finding that the Act's provisions then in effect afforded nursing home employees no private right of action for retaliatory discharge[2], and on count III, the common law retaliatory discharge claim, as the common law does not permit recovery for a constructive discharge, but only for retaliatory termination of employment. The trial court denied summary judgment as to count II under section 20 of the Whistleblower Act (740 ILCS 174/20 (West 2010)) and the case proceeded to trial on that count.

[¶12] At a pretrial conference, the trial court ruled that the discovery deposition of Nancy Tamul, a nurse employed at Alden Gardens at the time, would be treated as an evidence deposition. The record does not reflect the basis for the court's ruling. The court directed the parties to designate portions of Tamul's deposition to be read to the jury and later ruled on objections to the designations. The record does not reflect that Alden Gardens raised any issue regarding Tamul's availability to testify either before trial or before excerpts from Tamul's deposition were read to the jury.

[¶13] The court also limited the evidence of retaliation that Young could rely on at trial to the incident involving her refusal to assist Werrline in falsifying residents' records and the claimed reduction in her work hours and responsibilities that followed. The court reasoned that although witnesses had testified to other incidents in various depositions, the only facts pled in the amended complaint related to the falsification of records and that it would be unfair to require Alden Gardens to defend against new factual allegations so close to trial. Thus, as framed by the amended complaint, Young's claim was limited to the contention that Alden Gardens reduced her work hours and responsibilities, resulting

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in her constructive discharge, in retaliation for her refusal to falsify residents' records.

[¶14] C. Jury Trial

[¶15] Trial commenced on December 3, 2012. Young testified that the nurses at Alden Gardens are responsible for, among other things, distributing and administering medications to the residents and performing diagnostic tasks. For those residents of Alden Gardens who are diabetic, a physician normally orders monitoring of their blood glucose levels. Nurses are required to check the residents' blood glucose levels and administer insulin based on the results. Test results and the insulin given are entered into a blood glucose monitoring log, which is part of the resident's medical chart. The resident's physician makes recommendations for treatment based on the results of blood glucose tests as reflected in the log.

[¶16] Werrline was hired as the wellness director for Alden Gardens in August of 2009. On November 20, 2009, Young notified Werrline that she had noticed that 10 to 20 entries in the blood glucose monitoring log for certain residents were missing from the previous night. In particular, several entries for each resident were missing. While Young did not know whether the blood glucose tests had, in fact, been done, she assumed the absence of entries meant that blood glucose levels for those residents had not been tested.

[¶17] According to Young, she then observed Werrline filling in numbers in the blanks of the logs and putting other nurses' initials by the entries, including the initials of nurses who had not been scheduled to work the previous night. Werrline asked Young to help her fill in numbers and sign off on the log because Werrline did not want all the entries to be in her handwriting. Young refused and Werrline sighed, rolled her eyes, and continued to fill in the blanks.

[¶18] Young testified she refused to comply with Werrline's request because it was illegal and it was a disservice to the residents, since a physician would be making recommendations for treatment based on the recorded glucose levels. Young knew from nursing school that it was illegal to fill in blanks in a patient's record with numbers that were not accurate.

[¶19] On cross-examination, Young acknowledged that there is a difference between a blood glucose log and a medical administration record. In the blood glucose log, nurses document a resident's blood glucose level at different times during the day and record how much insulin was given to the resident. The medical administration record shows the medications given to the resident, apart from insulin. Young testified that both the blood glucose log and the medical administration record are contained in " the same book" and are part of a resident's " chart."

[¶20] Young immediately reported Werrline's conduct to Alden Gardens' executive director, Rob Anderson. Young told Anderson that Werrline was falsifying medical records and had asked her to do the same but that she refused. Young also told Anderson that something should be done. Anderson advised Young to talk to Werrline and did not take any other action.

[¶21] Thereafter, Young testified, her experience at Alden Gardens changed. Young's hours were reduced, she was no longer asked to fill in for shifts that were available, and she was no longer asked to train staff as she had done before. Nurses who were junior to Young in terms of their tenure at Alden Gardens were offered shifts before they were offered to Young, contrary to Young's past experience. At the time of the November 2009 incident,

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Young was working 30 to 40 hours a week. After November 2009, the amount of hours declined and continued to do so to the point that in April 2010, she was working only two eight-hour shifts per week. Additionally, Young testified that before the November 2009 incident, she had received glowing work performance evaluations, but after the incident, Werrline gave her an evaluation that was, while not negative, not as favorable as previous evaluations.

[¶22] Young testified she stayed at Alden Gardens after the November 2009 incident because she needed the money and because she felt that she could help the residents by protecting them from the danger posed by the actions of Werrline and other staff members. She testified that this time period was stressful, that she could not sleep, and when she did sleep, she had nightmares. She also experienced anxiety at work and felt that her nursing license was possibly in jeopardy.

[¶23] During her tenure at Alden Gardens, Young was making $27.56 an hour. On cross-examination, Young acknowledged that she started looking for a job after the November 2009 incident but she did not take another job until she began working part-time in April 2010, earning $25 an hour. She took a different full-time position in June 2010, which paid $22.50 an hour.

[¶24] Excerpts from Tamul's deposition were read to the jury. Tamul, a nurse with 48 years' experience, was employed at Alden Gardens from September 2009 through April 2012. Tamul observed what she considered to be retaliation against Young. Young's hours were cut, although Young asked Werrline for more hours. Tamul testified that Werrline treated Young differently after the November 2009 incident, specifically, " she was very disrespectful, denigrating, loud, rude, had no respect for anyone's privacy. It was done in the middle of the office in front of everyone, very inappropriate." Additionally, Tamul noticed several staff and management errors, such as inadequate documentation in the charts and medication administration errors.

[¶25] Danette Temple is the staffing development coordinator at Alden Management Services, a consulting entity that provides support services to long-term facilities, such as payroll services and assisting in developing policies and procedures. Temple testified that in her role as the staffing development coordinator, she was responsible for staff education for the various facilities Alden Management Services contracts with, including Alden Gardens. Temple provides education and training to nurses and administration on nursing policies, procedures, and nursing standards.

[¶26] At trial, Temple claimed to be unable to state whether falsifying information on a blood glucose chart violated the law. She was impeached with her deposition in which she admitted that making false entries in a resident's medical record is a violation of Illinois law. Further, although late entries are not uncommon, Temple acknowledged that it also violates Illinois law for a nurse to fail to note on the record that an entry is a late entry. Temple also admitted that blood glucose test results dictate what medications a physician may order for the patient and that if those results are documented incorrectly or if they are not taken, the physician does not have the necessary information to make the appropriate medical orders for that resident.

[¶27] After the close of Young's case, Alden Gardens moved for a directed verdict, arguing that Young did not establish a prima facie case under the Whistleblower Act. Alden Gardens' motion was denied. The following day, the court dismissed The Alden Group as a party defendant based

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on the lack of evidence that The Alden Group exercised control over Alden Gardens.

[¶28] To rebut Young's claim that her hours were reduced, Alden Gardens called Vincent Cozzi, the payroll coordinator for Alden Management Services. Basing his testimony on Young's payroll check register, Cozzi calculated that during 2008, Young worked an average of 38.78 hours per two-week pay period. Young worked an average of 58.80 hours per pay period during 2009. In 2010, from January 1 through April, Cozzi calculated that Young worked 54.22 hours on average per pay period. Cozzi acknowledged that although Young worked 63 hours during the pay period ending on January 13, 2010, by April 2010, Young worked 35 hours during one pay period, and her last paycheck of May 5, 2010, showed that Young worked just 26 hours in the pay period before she resigned.

[¶29] The jury was instructed that in order to prevail, Young was required to show, among other things, that the conduct Werrline asked her to engage in would have violated " a state or federal law, rule or regulation." The instruction did not reference, nor did Alden Gardens tender a proposed instruction referencing any particular law, rule or regulation. Counsel for Alden Gardens argued to the jury that Young failed in this element of her proof because the evidence was insufficient to show that the information Werrline was entering in residents' medical records was false.

[¶30] On the issue of damages, counsel for Young asked for $20,000 to $40,000 for lost income and damages for emotional distress in the range of $100,000 to $200,000. Counsel for Alden Gardens argued that there was no " objective basis" for the calculation of damages and, therefore, none should be awarded.

[¶31] After the jury was instructed, the trial court did not provide the parties' exhibits to the jury, noting that it generally did not allow exhibits to go back to the jury room. Counsel for Alden Gardens responded, " I'm fine with that, your Honor, not sending them back."

[¶32] During deliberations, the jury sent out two notes. The first asked for a copy of the exhibit used during Cozzi's testimony relating to the number of hours Young worked; the second asked for a copy of all of the exhibits. There are no transcripts of hearings held with respect to the jury's requests. In its brief, Alden Gardens represents that the trial court indicated a willingness to send all exhibits to the jury room, but counsel for Alden Gardens objected to providing the jury with all of the exhibits. When the parties could not agree to provide the jury with ...

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