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Gerba v. National Hellenic Museum

United States District Court, N.D. Illinois, Eastern Division

June 21, 2018

JOHN GERBA, Plaintiff,


          Robert M. Dow, Jr. United States District Judge

         In this diversity action, Plaintiff John Gerba (“Plaintiff”) brings suit against Defendant the National Hellenic Museum (“Defendant” or “Museum”) for violation of the Illinois Whistleblower Act, 740 ILCS 174/1 et seq. (“IWA”), common law retaliatory discharge, and defamation. Currently before the Court is Defendant's motion to dismiss the complaint for failure to state a claim [12]. For the reasons explained below, Defendant's motion [12] is granted. Plaintiff is given until July 20, 2018 to file a first amended complaint to the extent that he can do so consistent with this opinion.

         I. Background [1]

         Plaintiff is a citizen of Indiana and resides in Whiting, Indiana. Defendant is an Illinois not-for-profit corporation registered to transact business in Cook County, Illinois. Its headquarters are located in Chicago, Illinois.

         Plaintiff began working for Defendant on May 24, 2016 as the Director of Finance. Within a few weeks, he was promoted to Vice President of Finance and Operations. In this role, he reported to Laura Calamos Nasir (“Nasir”). Plaintiff's duties consisted primarily of running the accounting department, overseeing the human resources department, overseeing building and grounds maintenance, overseeing contracts and insurance policies, and generally overseeing Defendant's day to day operations. Plaintiff had access to non-public information regarding Defendant's financial situation, as well as the inner workings of Defendant and its politics and structure. Plaintiff's annual salary was approximately $125, 000.

         Around May 2016, Pat Nichols (“Nichols”) served as Defendant's interim president for six weeks on a consultant basis. During that time, Nichols requested that Plaintiff provide an inventory showing how Defendant used funds from an Illinois Department of Natural Resources (“IDNR”) grant to install information kiosks in the Museum. Plaintiff was unable to find an inventory list.

         Around September 2016, Plaintiff suggested to Nasir and James Adams (“Adams”), the Chief Financial Officer of Calamos Family Partners, various ways to install the kiosks. Plaintiff emphasized the need to complete the project. He also requested an accounting of how Defendant spent the IDNR grant money. The requested accounting was never provided and Defendant has not installed the kiosks in the Museum.

         Also in September 2016, Plaintiff discovered that Defendant had received tens of thousands of dollars in donations to purchase benches decorated with the donors' names to place in the Museum. Plaintiff alleges on information and belief that, instead of using the funds for their promised purpose, Defendant used the donor money for unrelated Museum projects. Plaintiff spoke with Nasir about the failure to use the donor money for the intended purpose of purchasing benches. He informed her continuously of the need to purchase the benches.

         In October 2016, “Plaintiff became aware of and concerned about a number of alleged improprieties by Defendant, including inaccurate financial reporting, commingling of assets, and misallocation of funds.” [1-1] at 5. These concerns included alleged directives to falsify financial reports showing contributions by Defendant's board members, including John Calamos, Sr. (“Calamos”); misallocation and misuse of donations earmarked for educational purposes; and concerns related to Nippersink Country Club, a property that had been donated to Defendant.

         Around February 2017, Defendant appeared to be running low on funds. On February 7, Plaintiff emailed Nasir and Adams to inform them that Defendant could not meet its upcoming payroll obligations. Nasir and Adams instructed Plaintiff to use a $30, 000 donation, which had been earmarked for educational spending, to cover the payroll obligation. Plaintiff cautioned them against using the donation for payroll, because the money was restricted for educational spending. Nevertheless, Nasir and Adams instructed Plaintiff to deposit the $30, 000 check for payroll use, but to credit the revenue to education. Plaintiff expressed discomfort in doing so and stated that he felt pressured to use the funds improperly.

         Around March 2, 2017, Plaintiff requested that Adams provide him with the 2016 monthly financial statements, vendor names, and receipts for Nippersink County Club. Plaintiff also asked whether any of Defendant's board members had financial ties to Nippersink or its vendors, which could create conflicts of interest for the Museum. Plaintiff never saw any income from Nippersink Country Club on Defendant's balance sheets. At the time Plaintiff requested information from Adams, he was preparing to create a Board Contribution Report to track the 2016 contributions of each of Defendant's board members to the Museum. Adams did not provide the requested information.

         Plaintiff compiled the Board Contribution Report using other financial reports and submitted it to Nasir and Adams. His report distinguished between board members' personal/individual contributions and contributions by the board members' companies/organizations. This was different than how previous reports had been prepared. In those previous reports, Plaintiff alleges, Defendant had “deceptively combined the sources of funds from personal and business entities, suggesting that the single board members donated all funds personally.” [1-1] at 7. Upon receiving the Board Contribution Report, Adams reprimanded Plaintiff and questioned who gave him authority to include company and foundation donations in the report. Plaintiff responded that, as the Vice President of Finance and Operations, he should be able to make that decision, which he believed had been proper. Nasir told Plaintiff that his “threats [were] wearing thin” and ordered him to fix the report to omit company and foundation donations. Id. Although Plaintiff made the changes that Nasir requested, he told her that he was uncomfortable doing so and it was against his better judgment, but he felt compelled to follow orders. Plaintiff also expressed that Defendant would have to replace him rather than coerce him to perform his job in a way he deemed fiscally improper. See [1-1] at 9.

         On March 28, 2017, Defendant terminated Plaintiff's employment. Prior to his termination, he did not receive any warnings, disciplinary actions, write-ups, or poor performance reviews.

         On June 19, 2017, Defendant's Education and Public Programs Manager, Dimitra Georgouses (“Georgouses”) sought an order of protection against Plaintiff in the Circuit Court of Cook County Domestic Violence Division, No. 17 OP 74063. On June 21, 2017, Defendant's Director of Human Resources and Operations, Kristi Athas (“Athas”), informed Defendant's staff during an all-staff meeting that there was an active restraining order issued against Plaintiff by a Museum employee and that Plaintiff had been stalking and sending inappropriate text messages to the employee. Athas instructed staff to call the police if Plaintiff was spotted on Defendant's property. In fact, a restraining ...

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