Angela Gordon v. State of Illinois

ORDER

BURNS, J.

This case comes before the Court on Respondent’s Motion to Dismiss pursuant to Section 2-619 of the Illinois Code of Civil Procedure and Court of Claims Rules 20 and 90.

The Claimant filed a Response to the Motion to Dismiss.

The Court

having read the pleadings and being fully advised in the premises, finds:

Introduction

The Claimant, Angel Gordon, filed this complaint against the Respondent, the State of Illinois (via the Department of Veterans Affairs), alleging that the Respondent discharged her in retaliation for her having reported various instances of workplace violence.

The Claimant’s Complaint contained three counts: a retaliatory discharge claim, a Whistleblower statutory claim, and a Qui Tam statutory claim.

The Claimant states that as a result of Respondent’s alleged retaliatory discharge, the Claimant has suffered loss of pay and other consequential [*219] damages.

The Claimant seeks recovery of back pay in excess of $1,000 as well as any statutory damages.

The Respondent filed a motion to dismiss on the sole ground that the Claimant’s case was time-barred under the Court of Claims Act’s two-year statute of limitations for tort claims.

See 705 ILCS 505/22(h).

The Claimant argues that her claims arise out of a contractual relationship and, therefore, that the Court of Claims Act’s five-year statute of limitations for contract claims applies.

See 705 ILCS

505/22(a).

For the following reasons, the Court holds that he Claimant’s retaliatory discharge claims are governed by the two-year statute of limitations, and that the Court does not have jurisdiction over the Qui Tam count.

The Court holds, therefore, that the Respondent’s motion to dismiss is granted as to all counts.

Facts

In March 2006, the Claimant was employed by the Respondent as a registered nurse and assigned to a veterans home in Quincy, Illinois.

On or about May 22, 2006, the Claimant reported alleged staff abuse of a resident elder person to management orally and in a written incident report.

On May 27, 2006, the Claimant allegedly witnessed an incident of workplace violence between two employee staff nurses while on duty.

The Claimant made a verbal report of this later incident at her next contact with her supervisor, and followed up with a written report of the incident.

Within days of reporting the aforesaid incidents, the Claimant alleges she was exposed to undue scrutiny, false accusations of failing to perform certain medical procedures, identified as a suspect in an unrelated offense, and interrogated numerous times in an effort to get her to “confess” to various misconducts, as well as discouraged by agents of Respondent from continuing her employment.

On

August 10, 2006, while still on her initial probation period from her hiring, the Claimant was terminated.

The Claimant’s Complaint states that Respondent gave no reason for the termination other than simply “probationary discharge.”

On August 10, 2007, the Claimant filed a three-count complaint in the Circuit Court of Adams County, alleging one count of common law retaliatory discharge, one count of retaliatory discharge pursuant to the Illinois Whistleblower Protection Acts,1 and one count under Whistleblower Act’s Qui Tam provision for civil actions for false claims.2

The Illinois Attorney General declined to pursue the Qui Tam and the Circuit Court dismissed the two retaliatory discharge “tort” counts for lack of jurisdiction on August 13, 2008.3 On August 12, 2009, the Claimant filed her Complaint with this Court.

The Respondent then filed this motion to dismiss for failure to file within the appropriate limitations period.

The Illinois Whistleblower Protection Act, 5 ILCS 430/15 et seq., and, as amended, 740 ILCS 174/1 et seq., and the Whistleblower Reward and Protection Act, 740 ILCS 175/1, et seq,

The Qui Tam provision of the Whistleblower Reward and Protection Act enables a private person to bring a civil suit on behalf of the State, with the Attorney General stepping into the shoes of the plaintiff to prosecute the action. If successful, the plaintiff receives a share of the proceeds of the action or the settlement of the claim. See 740 ILCS 175/4.

In dismissing the retaliatory discharge tort counts, the Circuit Court noted that the named defendant, the Illinois Department of Veteran Affairs, was not an “employer” as defined by the Whistleblower Act and, thus, the plaintiff’s statutory count would have been dismissed even if the Circuit Court had jurisdiction over the claim.

[*220] Analysis

There are two issues presented for the Court’s consideration by this motion.

First, this Court must decide the limitations period governing an action for retaliatory discharge in the Court of Claims.

Second, this Court must decide whether the Court has jurisdiction to hear the Qui Tam count.

The Claimant argues that that the applicable statute of limitations for a retaliatory discharge claim in the Court of Claims should be five-year statute which governs “all claims arising out of a contract…”

See 705 ILCS 505/22(a).4 Claimant asserts that Illinois courts have recognized retaliatory discharge as a “hybrid” type tort/contract claim and, thus, for statute of limitations purposes, her claim should be granted the five-year limitations for contract claims.

Alternatively,

the Claimant argues that she should be granted an additional year to file her claim by virtue of either the savings statute set forth in Section 13-217 of the Illinois Code of Civil Procedure or the doctrine of equitable tolling.

The Respondent argues that the applicable two-year statute of limitations comes from 705 ILCS 505/22(h) of the Court of Claims Act, which contains the Court’s provision for “[a]ll other claims.”5 The Respondent points out that the Claimant brought her claim under subsection 8(d) of the Act, which pertains to tort claims.

Furthermore, Respondent points out that the savings statute of Section 13- 217 applies only to involuntary dismissals by a federal district court.

Lastly, respondent notes that the equitable tolling doctrine does not apply since the Claimant easily could have preserved her claim in this Court by timely filing in this Court and then seeking general continuances while her Circuit Court actions played out.

See 74 Ill. Adm. Code §790.60(a).

Illinois courts and federal courts applying Illinois law have consistently recognized retaliatory discharge claims as torts.

Padilla v. County of Cook, 100 F.Supp.2d 1145, 1147 (N.D. Ill. 2000) citing Spearman v. Exxon Coal USA, Inc., 16 F.3d 722, 723 (7th Cir. 1994); See also, Boyles v. Greater Peoria Mass Transit District, 499 N.E.2d 435, 437 (Ill. 1986).

Although no state statute establishes such a rule, the Supreme Court of Illinois treats retaliatory discharge as a tort.

Spearman, 16 F.3d at 723 citing Kelsay v. Motorola, Inc., 384 N.E.2d 353, 358 (Ill. 1978).

Claimant cites case law that show courts have applied a five-year statute of limitations to retaliatory discharge claims in certain circumstances, but those cases are distinguishable from the instant case.

In Teumer v. General Motors Corp., the plaintiff’s claim was brought under the Employee Retirement Income Security Act (ERISA) and involved application of statutes of limitations found in the Civil Code.

34 F.3d 542, 449-50 (7th Cir. 1994).

Neither ERISA nor the Civil Code is implicated in this case.

Similarly, in Berghoff v. R.J. Frisby Manufcturing, a federal court had to decide whether section 13-205 or 13-202 of the Civil Code should apply to a

Section 22 of the Court of Claims Act reads, in relevant part: “Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred from prosecution therein unless it is filed with the Clerk of the Court within the time set forth as follows: (a) All claims arising out of a contract must be filed within 5 years after it first accrues, saving to minors, and persons under legal disability at the time the claim accrues…”

Section 22(h) of the Court of Claims Act reads as follows: (h) All other claims must be filed within 2 years after it first accrues, saving to minors, and persons under legal disability at the time the claim accrues, in which case the claim must be filed within 2 years from the time the disability ceases.

[*221] retaliatory discharge claim brought under the Workman’s Compensation Act. F.Supp 649, 651 (N.D. Ill., 1989).

Significantly, the Berghoff

Court found that Section 13-202 was limited, in relevant part, to actions for “an injury to the person.”

Thus, the Court reasoned, the retaliatory discharge claim would fall under the five-year “catch all” provision of Section 13-205.

While the Berghoff Court did go on to say that the retaliatory discharge claim was one that “arose out of a contractual relationship,” it did not go so far as to say that it arose out of a contract.

In the instant case, Section 22(a) pertains explicitly to claims arising out of a contract.

The Claimant here was an at-will employee of the Respondent.

While

some courts may be willing to expand the tort of retaliatory discharge to encompass a claim under “contract” in such contexts, this Court is not willing to do so absent authority from the General Assembly.

This Court must apply the statutes of limitations set forth in the Court of Claims Act.

“All time limitations established under this Act and the rules promulgated under this Act shall be binding and jurisdictional, except upon extension authorized by law or rule and granted pursuant to a timely motion filed.” 705 ILCS 505/22(j).

This Court holds, therefore, that the applicable statute of limitations for actions before the Court based on the tort of retaliatory discharge is two years.

Turning to the issue of whether the “savings statute” of Section 13-217 of the Civil Code applies in the present case, the Court finds that it does not.

Section 13-

217 allows plaintiffs who have voluntarily dismissed their claims to re-file within a year of such dismissal.6

The Claimant argues that her claims constituted a voluntary dismissal because they were tied to the Qui Tam count, over which the Attorney General had sole authority to prosecute if she chose to do so.

The Court

agrees with the Claimant that the Qui Tam count would be considered a “voluntary dismissal.”

However, the Qui Tam claim, as will be explained fully below, may not be heard in this Court for other reasons.

Meanwhile, the remaining two counts of retaliatory discharge are clearly not voluntary dismissals because they were dismissed for lack of jurisdiction.

Reyes v. State, 48 Ill.Ct.Cl. 170, 174 (1995).

As

such, the latter retaliatory discharge counts do not fall within Section 13-217’s provisions.

Finally, the Claimant argues she should be granted additional time to file her claim on the basis of equitable tolling.

The Claimant notes that her claims were effectively tied up in Circuit Court for over a year while the Attorney General considered whether to prosecute the Qui Tam.

Thus, Claimant argues, she was effectively handcuffed from filing the claims in this Court.

The Claimant further argues that it is against public policy to allow a constitutional official to delay the progress of a case, particularly one concerning an employment matter involving a state agency.

Section 13-217 reads, in relevant part: “Where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal,…, or the action is voluntarily dismissed by the plaintiff, or the actions is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitations, whichever is greater…” 735 ILCS 5/15-217.

[*222] The Court is sympathetic to the Claimant’s arguments for equitable tolling, but finds them unavailing in this case.

The Claimant cites no case law, and this Court was unable to find any, that mandates a tolling of the statute of limitations in the Court of Claims for a Qui Tam.

The Court of Claims Act allows for claimants to file claims in this Court while the same actions are pending in Circuit Court, and then continue them generally until the final disposition of all other claims or proceedings arising from the same occurrence.

74 Ill. Admin. Code §790.60(a).

Thus, the Claimant could have filed her timely complaints in this Court during the two-year statute of limitations period, then sought general continuances of those actions while the Circuit Court actions played out.

See Reyes, 48 Ill.Ct.Cl. at 176.

As for the remaining count in Qui Tam, the Court has no jurisdiction over which to hear such a claim.

The Court of Claims is a creature of Illinois statute, and our limited jurisdiction is solely what the General Assembly has granted by law.

The

Court of Claims Act makes no mention of jurisdiction over Qui Tam claims.

See 705

ILCS 505/8.

As such, this Court does not have jurisdiction to hear this claim.

For the foregoing reasons, IT IS HEREBY ORDERED that the motion of the Respondent is GRANTED and the Claimant’s Complaint is dismissed with prejudice.