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Kapotas v. Better Gov't Ass'n

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2015

JAMES KAPOTAS, Plaintiff-Appellant,
v.
BETTER GOVERNMENT ASSOCIATION, SUN-TIMES MEDIA, NBC SUBSIDIARY (WMAQ-TV), LLC, DICK JOHNSON, individually, and PATRICK REHKAMP, individually, Defendants-Appellees

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Appeal from the Circuit Court of Cook County. No. 12 L 9864. Honorable Daniel T. Gillespie, Judge Presiding.

For APPELLANT: Scott J. Larsen, Michael C. Keefe, The Larsen Law Firm, P.C.

For Sun-Times Media, LLC, APPELLEE: Damon E. Dunn, Seth A. Stern, Funkhouser Vegosen Liebman & Dunn Ltd.

For Better Government Association, NBC Subsidiary (WMAQ-TV), LLC, Dick Johnson and Patrick Rehkamp, APPELLEES: Samuel Fifer, Natalie J. Spears, Kristen C. Rodriguez, Dentons U.S. LLP.

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.

OPINION

REYES, JUSTICE.

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[¶1] Plaintiff, James Kapotas, M.D., appeals an order of the circuit court of Cook County dismissing his verified second amended complaint against defendants Better Government Association (BGA), Sun-Times Media (the Sun-Times), NBC Subsidiary (WMAQ-TV), LLC (WMAQ), Dick Johnson (Johnson), and Patrick Rehkamp (Rehkamp), which alleged defamation, false-light invasion of privacy, tortious interference with business expectancy, and public disclosure of private facts. For the following reasons, we affirm the judgment of the circuit court.

[¶2] BACKGROUND

[¶3] Plaintiff initially filed a verified complaint against defendants on August 30, 2012, in the circuit court of Cook County.[1] The operative pleading in this appeal is the verified second amended complaint, filed on May 7, 2013.[2]

[¶4] The verified second amended complaint alleged that plaintiff was employed as an orthopedic surgeon at John H. Stroger, Cook County Hospital (Stroger Hospital) from October 1999, through November 5, 2011, when he resigned as chief of orthopedic surgery. Prior to his resignation, plaintiff, in April 2011, requested and was granted a leave of absence from Stroger Hospital.

[¶5] During the leave of absence, Stroger Hospital issued checks to plaintiff by direct deposit for untaken sick leave and vacation time " in an amount totaling $135,000." After payroll deductions, plaintiff received net payments of $76,776.14. Stroger Hospital does not allow physicians to use sick time for nonmedical leaves of absence.[3] Unused sick time, however, has value insofar as it can be added to a pension. The payments issued during the

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leave of absence were allegedly due to a clerical error. Plaintiff alleged that when he learned he had received county funds due to a clerical error, he immediately assisted in correcting the problem by paying the county back.

[¶6] On November 4, 2011, Cathy Bodnar (Bodnar), the chief compliance and privacy officer of the Cook County Health & Hospitals System, sent an email to Dr. Richard Keen (Keen), identified in the complaint only as " another surgeon at Stroger Hospital." Bodnar directed Keen to request that plaintiff submit a letter of resignation and a check for $76,776.14 payable to the Cook County treasurer.

[¶7] On November 5, 2011, upon receiving an email from Keen, plaintiff resigned from Stroger Hospital. The email stated in part that plaintiff: (1) had taken an unpaid leave of absence; (2) was incorrectly paid for sick time; (3) had not received back pay " effective end of January 2011" that he was due to receive; (4) had not received payment for vacation time he was due to receive; and (5) must be " zeroed out" before he could receive payment, similar to " house-closing-checks passing back and forth." The email also directed plaintiff to tender to Keen a check payable to the Cook County treasurer in the amount of $76,776.14. Keen indicated that Cook County would then issue a check to plaintiff representing the payments due him as described in the email.

[¶8] On November 7, 2011, plaintiff issued a check payable to the Cook County treasurer in the amount of $76,776.14. He also issued a second check in the amount of $12,050.15 for retroactive insurance coverage. On December 14, 2011, Cook County issued a check payable to plaintiff for back pay due him in the amount of $53,774.09.

[¶9] On November 11, 2011, after plaintiff resigned and before Cook County issued the check for back pay, Johnson authored and published an article through NBCChicago.com entitled, " Cook County Doc Gets Big Payout for No Work," accompanied by an online video segment. Plaintiff attached a copy of the article as an exhibit to the verified second amended complaint. The article states in relevant part:

" A former Stroger Hospital doctor was given checks amounting to six figures with no work to show for it.
The revelation has pushed Cook County's independent Inspector General to look into whether the issuances were accidental or intentional; a huge, one-time oversight or standard practice, an NBC Chicago / Better Government Association investigation has found.
* * *
'All I wanted was to get out,' said orthopedic surgeon Dr. James Kapotas, who spent 12 years at the hospital. 'I was originally going to resign, but they said, " Take a leave of absence." []' By all appearances, it would have been a lucrative leave.
Between April and August of this year the BGA and NBC Chicago have learned Dr. Kapotas was being paid tens of thousands of dollars by the hospital -- [ sic ] and doing no work.
Payroll records show Kapotas was paid more than $100,000 ***. A pay code indicates he was compensated for unused sick days.
But under hospital policy, no employee is allowed to be paid for either unused sick time or a personal leave of absence.
'We were able to find that there was a clerical error made and that there was, in fact, a former employee incorrectly paid on a leave of absence,' said Marisa

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Kollias, a spokeswoman for the hospital system.
* * *
Kapotas is now working again. He's in private practice with Central Indiana Orthopedics, where he declined an on-camera interview. He answered questions about his Stroger paychecks via telephone only.
'I don't go looking at my checking account,' he said. 'I do direct deposit. I don't have a boat. I don't have three Twives. There's no intent to defraud the county.'
In the words of the hospital spokeswoman, it was all a 'big clerical error.'
Still, it was only after an inquiry into the story that hospital administrators launched an investigation into it.
Kapotas has since paid back the money that wasn't rightfully his. A Tuesday delivery at the suburban home of Kapotas' department chairman at Stroger, Dr. Richard Keen, included a formal letter of resignation and a check.
Kollias confirmed that Kapotas 'paid back everything' and insisted the incident was isolated.
Cook County Inspector General Pat Blanchard is in the process of determining if that's true and how the mistake originally happened.
Kapotas and others have already been interviewed.'" [4]

[¶10] Plaintiff alleged the article stated that he " received money for doing no work when, in fact, [he] was incorrectly paid during an approved leave of absence." The article did not explain that Cook County owed plaintiff in excess of $50,000 when the article was published. The article also states that plaintiff was offered an on-camera interview, but neither Johnson nor any representative from WMAQ interviewed plaintiff about the incident.

[¶11] On November 16, 2011, the BGA and Rehkamp authored and published an article through the Sun-Times entitled, " Cook County doctor overpaid $80,000 while on leave." Plaintiff attached a copy of the article as an exhibit to the verified second amended complaint. The article states in relevant part:

" Many doctors at the Cook County Health and Hospital System work long hours and difficult shifts for relatively modest pay compared with the private health-care industry. But one longtime county physician got a big bonus earlier this year: [h]e was paid an extra $80,000 while on a personal leave of absence that was supposed to be unpaid, the Better Government Association has learned.
Prompted by inquiries from the BGA, county officials are trying to determine whether the additional taxpayer-funded pay given to Dr. James Kapotas was an isolated error or if others working for the county's financially strapped health system have gotten money they weren't entitled to. Kapotas has not been accused of wrongdoing, and he insists he didn't even know he had been overpaid.
After the BGA raised questions, he formally resigned from his county post and cut a check, refunding the estimated $80,000 that he was wrongly paid over a roughly four-month stretch.
'Look, all I did was ask for a leave of absence,' said Kapotas, an orthopedic surgeon who took a leave from the county in ...

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