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Wynn v. Illinois Department of Human Services

Court of Appeals of Illinois, First District, Second Division

May 23, 2017

JERRY WYNN, Plaintiff-Appellee,

         Appeal from the Circuit Court of Cook County. No. 12 L 9430 The Honorable James E. Snyder, Judge, presiding.

          PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.



         ¶ 1 For 13 years Jerry Wynn worked as a contract employee for the Illinois Department of Human Services. Then his contract was not renewed. Wynn sued DHS under the whistle blower provision of the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West 2014). He contended that DHS terminated him in retaliation for reporting an improper expenditure to an auditor. According to DHS, Wynn and others were terminated under an agreement between the State and the American Federation of State and Municipal Employees (AFSCME) to place union employees in positions occupied by contractors and vendors.

         ¶ 2 After a one-day bench trial, Wynn prevailed. The trial court held Wynn proved that his protected activity-reporting an improper payment to the auditor-was a contributing factor in DHS not renewing his contract and terminating him.

         ¶ 3 DHS argues the trial court erred as (i) nonrenewal of a fixed-term contract does not amount to unlawful retaliation under the Ethics Act and (ii) the findings were against the manifest weight of the evidence. We affirm. DHS committed retaliation under the Ethics Act's definition of "retaliation, " which includes a change in the terms or conditions of employment. Further, the trial court's findings square with the manifest weight of the evidence.

         ¶ 4 BACKGROUND

         ¶ 5 The evidence at trial established that Jerry Wynn began working as a contract employee for DHS in December 1997. Wynn was the program administrator of the Chicago Healthy Start Program, a federal grant program to reduce infant mortality and improve perinatal outcomes. Wynn's duties included assuring compliance with grant requirements and preparing grant applications. Wynn worked in the Bureau of Maternal and Infant Health, an office in the division of Community Health and Prevention (CHP). Wynn was widely praised by his supervisors, and his job performance was deemed excellent.

         ¶ 6 Wynn worked under successive one-year personal service contracts with DHS except when, for budget reasons, he was placed on the payroll of DHS vendors from 2003 to 2006 (Springfield Urban League) and from July 2009 through June 2010 (Catholic Charities). Whether under a personal service contract or on a vendor payroll, Wynn's position, day-to-day responsibilities, and supervisor remained constant. Wynn expected his contract would be renewed every year but he knew he was not entitled to renewal.

         ¶ 7 The Fletcher Process

         ¶ 8 In early 2009, DHS began negotiating with AFSCME to replace a number of contract employees with AFSCME members. This change was prompted by a lawsuit between AFSCME and DHS, which alleged, in part, that the State had contractors and vendors doing union work while union employees were being laid off. The circuit court issued an injunction ordering the state and the union to work with a mediator to resolve the issue, which resulted in a mediated resolution agreement (MRA). Under the MRA, the state was to make "all reasonable efforts to terminate *** personal service and vendor contracts" that violated union agreements "no later than December 31, 2010."

         ¶ 9 DHS referred to the process of converting contract positions to union jobs as the "Fletcher process" (after the arbitrator). Jeffrey Kunz, DHS's director of Labor Relations, and his staff negotiated with the union over contract and vendor positions. Kunz's staff compiled a list of DHS personal service contractors and vendors who arguably performed union work. The list, referred to as a "grid, " included 700 to 800 names. It was fluid; contractors and vendors continually started and ended during the process, and new names were added.

         ¶ 10 Beginning in August 2009, Kunz and his staff met with union representatives every other month to determine, one-by-one, whether someone on the grid should be replaced by a member of the union. Kunz and his staff had a document listing each contractor's title, scope of duty, salary, and start and end dates. If the union took the position that a contract position should be eliminated because the classification involved union work, Kunz said "that was pretty much the end of the discussion then. We had no argument to say that was our work." He said that once a position was designated as union work, the contractor could be extended temporarily but could no longer be offered a year-long contract, as that would violate the collective bargaining agreement. DHS could retain contract workers who were on short-term contracts of less than one year and those who performed professional, specialized work, such as information technology and the practice of medicine.

         ¶ 11 Vendors did not have job classifications. Kunz said that it took more time to determine whether a vendor had to be terminated. Kunz referred to Article 29 of the Memorandum of Understanding with the union, which provided that an employer could "contract out any work it deems necessary or desirable because of greater efficiency, economy, or other related factors." Kunz said that Article 29 applied only to vendors and gave the State some leeway in keeping a vendor, even if his or her work resembled a union classified job.

         ¶ 12 Kunz's job in the Fletcher process was "to advocate for management on behalf of DHS." DHS had an internal "Fletcher group, " some 20 to 25 liaisons representing divisions across DHS, helping streamline the process. The liaisons would explain which contractors they believed were not doing union work and why; Labor Relations would present that argument to the union. Dan Blair, CHP's fiscal manager, and Diane Deppe, a budget manager, were CHP's liaisons to the Fletcher group. At trial, Kunz testified that liaisons only provided Labor Relations with information regarding salaries, contracts, and other necessary information, but acknowledged that in his deposition he said liaisons made recommendations about which contract employees should be retained.

         ¶ 13 Blair testified that as liaison he regularly attended Fletcher group meetings and met separately with Kunz on several occasions. Kunz generally wanted to know where contract employees worked, who they reported to, and their scope of duties. Blair and Kunz discussed contractual information about employees-"the name, the job title, what it equated to, what their function-you know just details about the job." Blair could not recall whether he offered opinions about specific employees or played any role in decisions on whether a contract violated the union's collective bargaining agreement. Nor could Blair recall whether Kunz asked him if CHP wanted to keep certain contract employees. Blair agreed that individual employee's names were discussed at the meetings, but said "it was more discussed on position rather than names." Blair also agreed that they would have discussed Wynn's position, but he could not recall anything specific that he and Kunz talked about. Blair acknowledged that he likely talked to Wynn's supervisors about Wynn's position, but could not recall the substance of those conversations.

         ¶ 14 Blair admitted that on January 14, 2010, he sent an email to the DHS Director, Kunz, and others stating that 15 names, including Wynn's, had been added to the Fletcher grid. He did not know why they were added or who added them. Although the decision not to renew Wynn's contract was part of the Fletcher process, Blair could not recall who made the decision, when it was made, when he heard about it, or who told him. Blair also could not recall if anyone told him that he or she did not want Wynn to continue in his position.

         ¶ 15 Diane Deppe, CHP budget manner reported to Blair. She said that only she and Blair provided information about whether there was money in the budget to continue to fund contract positions.

         ¶ 16 Every job in the state system has a working title and classification title. Wynn's working title was "Healthy Start Program Administrator." His classification title was Public Service Administrator (PSA) Option 6. PSA Option 6 became a union title on December 2, 2008, when the Illinois Labor Relations Board granted AFSCME's petition to add it to the category of union titles and the state agreed, with the exception of about 100 jobs. Wynn's name appeared on a list of contractors and vendors gathered by the Fletcher group on August 24, 2009.

         ¶ 17 The Audit

         ¶ 18 In April 2009, around the same time the Fletcher process began, the Illinois Office of Internal Auditors began auditing Healthy Start. Wynn's supervisor, Glendean Sisk, asked Wynn to "take the lead" and handle the audit's "clinical side, " including issues regarding "client care." On November 9, 2009, an auditor called Wynn and asked about a nearly $100, 000 payment to the Springfield Urban League. Wynn told the auditor that he had not authorized the payment and that the Springfield Urban League was not an approved Healthy Start contractor. Wynn told the auditor he thought Dan Blair was responsible for the payment as Blair issued checks to Healthy Start grantees.

         ¶ 19 Later that day, Wynn sent an email to Sisk, Myrtis Sullivan, CHP's associate director, and Ivonne Sambolin, CHP's director, informing them of his conversation with the auditor. Sullivan sent a reply email thanking Wynn and asking him to inform them of further inquiries. Sisk forwarded Wynn's email to Blair (and copied the other original recipients and Wynn), asking Blair what he knew about the payment. In a reply email, Blair said the $100, 000 payment was for "technical assistance" and was "the contract [Wynn's assistant] is paid from." Wynn wrote a reply email correcting Blair. Wynn's assistant worked for Catholic Charities, and not Springfield Urban League, and she did not begin working for him until May 2008. Blair replied. He conceded that Wynn was correct, but thought the payment should be considered part of "technical assistance." Wynn again responded, telling Blair there was no technical assistance from Springfield Urban League. That was Wynn's last communication with Blair about the payment.

         ¶ 20 The next day, Wynn saw Myrtis Sullivan, and she said to him, "We['ve] got to meet with you, me and the director [are] going to meet with you. You are going to make us lose Healthy Start." Wynn said he asked her "Why? Because I wouldn't go along with Dan Blair?" and Sullivan shook her head and said, "Yes." Wynn told Sullivan he would not lie to an auditor, and Sullivan repeated that she and the director were going to meet with him, and walked away. Sullivan had no recollection of this conversation but recalled that she was not upset at Wynn for talking to the auditor or for sending the emails about the audit and the improper payment.

         ¶ 21 Wynn also saw Sisk that morning. She said to him, "Why did [you] have to say anything? I'm sure this was just a one-time thing. Dan just needed to find some money." Wynn testified that Sisk criticized him for cooperating with the auditor and said that he should have told the auditor, "I'll just let Dan Blair answer that." Sisk testified that she was not angry with Wynn but thought Blair should handle questions about the audit. She also said Blair expressed "frustration that he was ...

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