Civil Litigation FlashPoints August 2009
Turner v. Memorial Medical Center: Emphasizing The Challenges A Plaintiff Faces When Alleging A Retaliatory Discharge Claim
Generally, an employer may fire its at-will employees for a good reason, a bad reason, or no reason at all. The exception to this rule is the tort of retaliatory discharge. Although Illinois courts have long recognized this cause of action, in Turner v. Memorial Medical Center, No. 107317, 2009 WL 1690479 (Ill. June 18, 2009), the Illinois Supreme Court recently emphasized the challenges that a plaintiff faces when alleging it.
In Turner, a respiratory therapist asserted a retaliatory discharge claim against his former employer, a hospital. 2009 WL 1690479at *1. The plaintiff had worked for the defendant for 23 years and consistently met or exceeded his employment expectations during that time. But, in September 2006, the plaintiff’s good relationship with the defendant changed. At the time, the Joint Commission on Accreditation of Healthcare Organizations (Joint Commission) was performing a review of the hospital that could affect its Medicare and Medicaid funding. As part of the review, the Joint Commission spoke with the plaintiff and one of the plaintiff’s supervisors about the defendant’s electronic charting of patient files. The Joint Commission requires that electronic charting be completed immediately after care to a patient, but the defendant merely required that its employees complete the electronic charting during their shifts. During the meeting, the plaintiff told the Joint Commission about the defendant’s failure to meet its electronic charting standard. Furthermore, the plaintiff told the Joint Commission that the defendant’s tardy charting procedure placed its patients’ safety in jeopardy. Six days later, the defendant terminated the plaintiff’s employment. Id.
In his complaint, the plaintiff claimed that the defendant terminated him in retaliation for his report to the Joint Commission about the defendant’s deviation from the Joint Commission’s standard on electronic charting. Moreover, the plaintiff contended that his discharge violated the public policy of “patient health and safety.” Id. He alleged that the Joint Commission was the source for that public policy, as the federal government recognized the Joint Commission’s role “in assuring patient safety” and that it “has certain standards and criteria” relating to electronic charting, including one relating to the time for completing patient charts. 2009 WL 1690479at *5. The plaintiff did not, however, cite to a specific Joint Commission standard in support of his allegation. The plaintiff also claimed that the §3 of the Medial Patients Rights Act was a source for his delineated public policy because it recognizes the “right of each patient to care consistent with sound nursing and medical practices.” Id. In response, the defendant filed a motion to dismiss pursuant to §2-615 of the Code of Civil Procedure, 735 ILCS 5/2-615, arguing that the plaintiff failed to allege that his termination violated a clear mandate of public policy. 2009 WL 1690479at *2. The trial court and appellate court agreed.
On review, the Illinois Supreme Court affirmed and, in doing so, reminded the plaintiff of the taxing standard for alleging a retaliatory discharge claim. 2009 WL 1690479at *7. The Illinois Supreme Court began its opinion setting forth the familiar requirements for a retaliatory discharge claim. 2009 WL 1690479at *3. To state a claim, the complaint must allege: (1) the employee’s discharge; (2) the discharge was in retaliation for the employee’s actions; and (3) the discharge violated a clear mandate of public policy. Id. There “is no precise definition” of the term “clear mandate of public policy,” but that the matter “must strike at the heart of a citizen’s social rights, duties, and responsibilities” and the general scope of the tort is “narrow.” Id.
The court then highlighted the first hurdle that a plaintiff must overcome when alleging retaliatory discharge. The court stated that whether the allegations amounted to a clearly mandated public policy is a question of law for the court to resolve, not a question of fact. Id. A plaintiff therefore cannot withstand a motion to dismiss relating to the alleged public policy simply by pointing to the jury. See id. In contrast, the court noted that whether the discharge was in retaliation for the employee’s actions is a question of fact for the jury because it involves issues of causation and motive. 2009 WL 1690479at *3 n.1.
Next, the court examined the plaintiff’s alleged public policy of “patient health and safety” and highlighted one of main challenges that a plaintiff faces when alleging the tort of retaliatory discharge: whether the alleged public policy is “clearly mandated.” The court stated that a “broad, general statement of policy is inadequate to justify finding an exception to the general rule of at-will employment.” 2009 WL 1690479at *4. Such generalized allegations simply do not give the employer notice of potential liability. Therefore, the court held that unless an employee identifies a “specific” public policy violated by his discharge, there is no retaliatory discharge claim. Id.
While this is not new law, the court’s application of the law to the facts at hand demonstrates just how difficult it can be to meet this pleading standard. You see, the court rejected the plaintiff’s clam even though he had pointed to one section of the Medical Patient Rights Act and to the Joint Commission’s general role in assuring patient safety and its electronic charting standards. 2009 WL 1690479at **5 – 6. While one may think that this is enough, the court explained that the plaintiff’s Joint Commission allegations were insufficient because the plaintiff failed “to recite or even refer to a specific Joint Commission standard in support of his allegation[s].” 2009 WL 1690479at *5. Moreover, while the plaintiff did cite to a specific section of Medical Patient Rights Act, that section did not expressly require completion of electronic charting immediately after patient care. 2009 WL 1690479at **5 – 6. That said, the court ruled that the plaintiff failed to allege the existence of a clearly mandated public policy and affirmed the claim’s dismissal. 2009 WL 1690479at *7.
In brief, Turner emphasizes the challenges a plaintiff faces when asserting a retaliatory discharge claim in Illinois. A plaintiff cannot withstand a motion to dismiss relating to the alleged public policy simply by pointing to the jury, as what constitutes a clearly mandated public policy is a question of law for the court to decide. What is more, the alleged public policy must be specific and should, if possible, identify the applicable law. But the mere citation to a law is insufficient for a retaliatory discharge claim if the alleged public policy does not appear within that law.