Harold Fritz v. State of Illinois

ORDER

BIRNBAUM, CJ.

THIS MATTER is before the Court on Respondent’s Motion to Dismiss filed on November 14, 2012.

NATURE OF THE CLAIM

From 1995 through 2003, Claimant held the position of Deputy Director for Programs and Services at the Illinois Department of Veteran Affairs. While serving as Deputy Director, Claimant was a finalist for the position of Director of the Illinois Department of Veteran Affairs. The position of Director was ultimately awarded to John Johnston in January of 1999. Claimant alleges that in July of 1999, Johnston and his administrative assistant, Betty Bergstrom, filed a false complaint with the Illinois State Police asserting that Claimant threatened to harm Johnston. Specifically, Claimant alleges that Johnston requested that the police commence an investigation of Claimant, asserting Claimant had threatened his “physical integrity” as well as threatening “potential damage to his personal home.” He also informed the police that Claimant had threatened him with physical violence. No charges or actions were ever brought against Claimant as a result of the police investigation, which concluded in December of 1999. Claimant alleges the statements made to the State Police were knowingly false and made in an effort to harass, intimidate and force Claimant to resign from his position as Deputy Director. Claimant alleges that during this time he was also approached by State Representative Ron Stephens who requested Claimant resign so that then Governor Ryan could appoint another individual to Claimant’s position. Claimant refused to resign from his position.

On or about May 31, 2000, Claimant filed a civil complaint in the Circuit Court of Sangamon County against then acting Director Johnston, his administrative assistant and other state employees under the theory of civil conspiracy. On or about April 15, 2003, Claimant was notified via written correspondence from then Director Dolgos of the Illinois Department of Veteran Affairs that he was being terminated effective April 30, 2003. The official reason for Claimant’s termination was cited as “due to budgetary cuts and the lack of funds to support the position.” Claimant’s civil case in Sangamon County was dismissed without prejudice on June 19, 2007. The dismissal was ultimately upheld by the Illinois Supreme Court.

[*100] On June 20, 2004, Claimant filed a Complaint in this Court alleging he was wrongfully discharged as the Deputy Director on April 30, 2003. Claimant alleges that despite the reasons set forth in the April 30, 2003 termination letter, Claimant was terminated in retaliation for asserting his legal rights alleging harassment and intimidation by his employer and further that his employer’s conduct was calculated to force his resignation. On October 15, 2012, Claimant filed a four-count Second Amended Complaint alleging various claims including wrongful termination, infliction of severe emotional distress, and violations of the Whistleblower Act. In Count I, Claimant alleges wrongful termination based on allegations made by former Director Johnston and his administrative assistant which caused him to be terminated by then Director Dolgos on April 30, 2003. In Count II, Claimant alleges infliction of severe emotional distress based upon “knowingly false criminal allegations by Johnston and his administrative assistant were of such extreme and outrageous nature as they were intended or likely to have foreseen to have caused Claimant severe emotional distress.” In Counts III and IV, Claimant alleges various violations of the Whistleblower Act. Specifically, Claimant alleges on or about March 2003 he met with the Director of Veterans Affairs Dolgos and informed him of various improprieties, misappropriation of State funds, bid rigging and kickbacks that Claimant had uncovered. Claimant alleges that as a result of these disclosures, he was terminated from his position in April 2003.

Claimant cites other examples of intimidation and harassment. For example, Claimant alleges that prior to 1999 he was reimbursed for all work related travel expenses but that following his refusal to resign and filing of his suit against Johnston, all similar requests were denied. Additionally, prior to 1999, Claimant alleges all military/Medal of Honor events and travel were submitted and approved by the Director of Department of Veterans Affairs as “excused” leave. Subsequent to Claimant’s refusal to resign and his filing of the suit against Johnston, Claimant alleges all similar requests were denied. Lastly, prior to 1999, Claimant repeatedly received mandated annual performance evaluations, receiving at least an “Accomplished” rating with each evaluation resulting in an increase in pay. Claimant alleges that subsequent to refusing to resign, and despite his repeated request for timely work evaluations, Respondent failed to provide mandated annual evaluations nor any merit and cost of living pay increases from May 2000-April 2004.

In its Motion to Dismiss, Respondent argues that Claimant’s Second Amended Complaint should be dismissed since Claimant was an appointed, at will public official who could have been removed from office at any time. Additionally, Respondent argues the Court of Claims lacks jurisdiction over administrative decisions of the Department of Veterans Affairs. Lastly, Respondent argues that Count I should be dismissed because Respondent is not liable for the conduct of former state employees under a theory of respondeat superior and Claimant failed to exhaust his available remedies against former Director Johnston and his administrative assistant. Respondent argues Count II should be dismissed because Claimant failed to allege sufficient facts to sustain a claim for severe infliction of emotional distress. Respondent argues Counts III and IV should be dismissed because Respondent is not an “employer” for the purposes of the Whistleblower Act. Additionally, Respondent argues that Counts II, III and IV of Claimant’s Second Amended Complaint are not timely filed because the claims do not relate back to the allegations contained in the original complaint.

[*101] An oral argument was held on November 6, 2013. At that time, the parties stipulated to the dismissal of Count II and Count III of Claimant’s Amended Complaint. As such, this Order only addresses Respondent’s Motion to Dismiss the remaining claims, Count I and Count IV, of Claimant’s Amended Complaint.

ANALYSIS

Under Illinois law, an at will employee may be discharged with or without cause and for good reason, bad reason, or no reason. Rogers v. Peoples Gas, Light & Coke Co., 315 Ill.App.3d 340, 351 (1st Dist. 2000). In order to maintain an action for wrongful discharge, plaintiff must allege that he was 1) discharged, 2) in retaliation for his activities, and 3) that the discharge violates a clear mandate of public policy. Hinthorn v. Roland’s of Bloomington, Inc. 119 Ill.2d 526, 529 (1988). The Illinois Supreme Court recently reaffirmed the legal standard governing an employee’s burden of proving causation in a retaliatory discharge lawsuit. “Retaliatory discharge claims are a narrow exception to the general rule that employees are at will. Thus, if an employer comes forward with a valid, nonpretextual reason for an employee’s discharge and the trier of fact believes it, there can be no causation in a retaliatory discharge claim.” Michael v. Precision Alliance Grp., LLC, No. 117376, 2014 WL 2205999 (Ill. December 4, 2014).

Respondent argues that Claimant’s wrongful discharge claim is barred by the doctrine of laches. They cite, Rudolph v. State of Illinois, 53 Ill. Ct. Cl. 58 (2000), for the proposition that a state employee must file a claim of wrongful discharge within six months of the discharge or such claim is barred by the doctrine of laches.

The Court in Rudolph cites to the Appellate Decision in Rudolph’s companion case which found:

“The general rule in the doctrine of laches to wrongful termination actions against public

sector employees is that a delay of longer than six months from the date of termination to

the filing of suit is per se unreasonable and will justify dismissal on the basis of laches.

Long v. Tazewell/Pekin Consolidated Communications Center (1992), 236 Ill.App.3d

967, 602 N.E.2d 856. But, a two prong test is used in applying the laches rule. First, the

court must determine whether the employer has been prejudiced, i.e., whether the

employer will have to pay a salary to both a replacement and to a successful plaintiff for

the period of delay. Second, the court must assess whether the plaintiff has given a

reasonable excuse for the delay.” Rudolph v. Kane County, 3-93-0871 (Ill.App.3d

October 11, 1994, Rule 23 Order at 2-3 Breslin)

Applying the principles in Rudolph, Respondents have not met the two-part test for laches to apply. Respondents have failed to show that they were prejudiced. The position that Claimant held as Deputy Director was eliminated, allegedly because no funding for the position was provided by the General Assembly. This Court also finds Claimant’s delay due to his pending Circuit Court litigation was not unreasonable. Claimant was terminated in 2003 and filed his suit here in 2004. Moreover, the claim asserted here is distinguishable from the action filed against Johnston and others in 2000, in that his termination in 2003 created a new cause of action. As such, Respondent’s Motion to Dismiss Count I is denied.

[*102] In Count IV, Claimant asserts a retaliatory discharge claim under the Whistleblower Act and the Personnel Code. Respondent argues that this claim is untimely filed because Claimant was terminated on August 20, 2003 and failed to file the retaliatory discharge claim pursuant to the Whistleblower Act until October 15, 2012. Claimant, conversely, argued at oral argument that the relation-back doctrine should apply because Claimant’s termination was related to his original allegations and filings against the individual State employees. The policy surrounding the relation-back provision of the statute governing amendments to pleadings is to preserve causes of action against loss due to technical pleading rules. Boatmen’s National Bank of Belleville v. Direct Lines, Inc., 167 Ill.2d 88, 102, 212 (1995); 735 ILCS 5/2-616(b). In this case, Claimant failed to allege in his original June 20, 2004 complaint any of the Whistleblower allegations found in Count IV of his Second Amended Complaint following his termination on August 20, 2003. This Court finds Claimant’s Count IV does not relate back to his original allegations and is untimely filed.

IT IS HEREBY ORDERED that Respondent’s Motion to DISMISS is GRANTED in part and DENIED in part. Count IV is DISMISSED. Count I for wrongful termination is REMANDED to a Commissioner for further proceedings.

OPINION

A hearing was held before Commissioner Ramage on September 20, 2016 regarding Count I (wrongful termination) of Claimant’s Second Amended Complaint. That is the sole Count that survives following this Court’s dismissal on December 30, 2014 of Count IV and the Claimant’s voluntary dismissal of Counts II and III. For the reasons stated below, the claim is denied.

NATURE OF THE CLAIM

From 1995 through 2003, Claimant held the position of Deputy Director for Programs and Services at the Illinois Department of Veterans Affairs. While serving as Deputy Director, Claimant was a finalist for the position of Director of the Illinois Department of Veterans Affairs. The position of Director was ultimately awarded to John Johnston in January of 1999. Claimant alleges that in July 1999, Johnston and his Administrative Assistant, Betty Bergstrom, filed a false complaint with the Illinois State Police asserting that Claimant threatened to harm Johnston. Claimant alleges that Johnston requested the police commence an investigation of Claimant, asserting Claimant had threatened his “physical integrity” as well as threatening “potential damage to his personal home.” Johnston also allegedly informed the police that Claimant had threatened him with physical violence. No charges or actions were ever brought against Claimant as a result of the Illinois State Police investigation. Claimant alleges the statements made to the Illinois State Police were knowingly false and made in an effort to harass, intimidate and force Claimant to resign from his position as Deputy Director. Claimant alleges that during this time, he was also approached by State Representative Ron Stephens who requested Claimant resign so that Governor George Ryan could appoint another individual to Claimant’s position. Claimant refused to resign from his position. On May 31, 2000, Claimant filed a civil Complaint in the Circuit Court of Sangamon County against then acting Director Johnston, his Administrative Assistant, Bergstrom, and other State employees under the theory [*103] of civil conspiracy. Around April 15, 2003, Claimant was notified via written correspondence from then Director Roy Dolgos that he was being terminated effective April 30, 2003. The official reason for Claimant’s termination was “due to budgetary cuts and the lack of funds to support the position.”

Claimant’s Sangamon County case was appealed to the Illinois Supreme Court. Fritz v. Johnston, 209 Ill.2d 302, 807 N.E.2d 461 (2004). On March 18, 2004, the Court held that Claimant stated a valid claim of conspiracy against Johnston and Bergstrom, but not against the other two Defendants, Gaffney and Ford. The Supreme Court remanded the case to Circuit Court for further proceedings. Claimant voluntarily dismissed the case, without prejudice, after the remand in 2007.

After the Supreme Court’s decision on March 18, 2004, Claimant filed a Complaint in this Court, on June 20, 2004, alleging he was wrongfully discharged. Claimant alleges that contrary to the reasons set forth in the April 30, 2003 termination letter, he was terminated in retaliation for asserting his legal rights by alleging harassment and intimidation by his employer and further, that his employer’s conduct was calculated to force his resignation. On October 15, 2012, Claimant filed the four count Seconded Amended Complaint. Count I is the sole remaining Count. Claimant alleges wrongful termination based on allegations made by former Director Johnston and his Administrative Assistant which caused Claimant to be terminated by then Director Dolgos.

Claimant cites several other examples of intimidation and harassment. For example, Claimant alleges that prior to 1999, he was reimbursed for all work related travel expenses, but that following his refusal to resign and the filing of his suit against Johnston, all similar requests were denied. Additionally, prior to 1999, Claimant alleges all Medal of Honor events were submitted and approved by the Director of the Department of Veterans Affairs as excused leave, wherein he did not have to take vacation time. During Johnston’s tenure, and after Claimant’s refusal to resign and his filing of the suit against Johnston, all similar requests were denied by Johnston. Claimant also alleges that he received accomplished ratings in his annual performance evaluations before Johnston, but once Johnston was hired, Johnston refused to provide the mandated annual evaluations, and Claimant was not given any merit or cost of living pay increases from May 2000 to 2004.

EVIDENCE AT THE HEARING

Two witnesses, Deb Collier (former Administrative Assistant to Claimant while he was Deputy Director) and Claimant, Harold Fritz, testified in Claimant’s case in chief. Ms. Collier testified that there was a lot of animosity between Director Johnston (now deceased) and Claimant. However, she said she had no knowledge of the budgetary issues cited as the cause of Claimant’s termination but also did not identify any specific evidence that substantiated Claimant’s allegations.

Claimant testified in detail regarding his relationship with Johnston. Claimant was appointed under the Edgar Administration. Shortly after the George Ryan Administration took over, Director Johnston was appointed and their relationship quickly deteriorated. Director [*104] Johnston did not approve certain travel requests for the Claimant’s role as Civilian Assistant to the Secretary of the Army (CASA) in Illinois. This type of leave time had been approved under the previous administration. Claimant’s job duties were modified by Johnston. He did not receive merit or cost of living increases under Johnston. Johnston evaluated Claimant only once, shortly after Johnston took over as Director. Claimant was asked to resign on several occasions, but refused to do so. For reasons not explained, the Governor’s office let several years go by without forcing the issue. In that period of time, Claimant wrote various letters to Federal and State Officials, never receiving a written response. The Secretary of the Army tried unsuccessfully to intervene on Claimant’s behalf regarding Johnston’s refusal to allow Claimant to attend CASA events without using vacation time. Claimant also testified that he felt people were trying to spy on him as he noticed a microphone in the ceiling near his office. He knew no specifics as to whether it worked or how long it had been there or proof that it was in fact a listening device.

Claimant believed that the 2003 budget did not call for the elimination of his position. But he conceded he did not always have access to the budget and only discussed the budget with Director Johnston in Claimant’s role as a strategic planner. When Director Dolgos took over, Johnston and Dolgos did not meet with Claimant during the two-week overlap between Director Johnston and Director Dolgos.

Claimant also testified there were irregularities at the Quincy and Anna Veterans Home facilities in the nature of misuse of federal funds and bid rigging. But, no evidence was presented to substantiate these allegations, let alone their relationship to his employment. Claimant also testified what he believed his salary would have been had he received similarly situated State employee salary increases. Claimant acknowledged, however, that many of the employees he cited were members of the union and he was not a union member. Therefore, his pay increases were discretionary. Claimant called the State Police at one point who advised him that the criminal investigation was over (late 1999), but he was never advised of that fact by Director Johnston.

The Respondent produced one witness in its case in chief, former Director Roy Dolgos, who took over after Director Johnston. Director Dolgos was appointed by Governor Blagojevich. Dolgos testified that Johnston never mentioned Fritz in the brief period (two weeks) that Dolgos and Johnston worked together. Dolgos said there was no animosity between him and Claimant. Dolgos had no role in the reasons for the decision to terminate Claimant other than drafting and signing the termination letter. Dolgos was also advised by the Department of Veterans Affairs financial officer that there was no funding left for Claimant’s position.

Dolgos testified that at least one, and possibly two, other Deputy Directors were terminated at the same time as Claimant. During the time Dolgos was Director, no Deputy Director positions were ever put back into the budget. Claimant maintains that Dan Boatright, one of the other terminated Deputy Directors, also brought allegations of fraud to the State’s attention. Claimant argues Boatright’s termination supports his claim of retaliation. Dolgos further testified that he would have continued Claimant’s employment were there sufficient funds. Claimant said merit reviews were completed for Claimant’s position and purportedly signed by Director Dolgos for the years 1999 through 2003 (the years Claimant received no salary increases). But Dolgos indicated that it is not his signature on the reviews and he had no [*105] knowledge that they were ever completed and does not know who would have signed his name or under what circumstances someone would have signed his name.

ANALYSIS

Under Illinois law an at will employee like Claimant may be discharged with or without cause and for good reason, bad reason, or no reason. Rogers v. Peoples Gas, Light & Coke Co., 315 Ill.App.3d 340, 351 (1st Dist. 2000). In order to maintain an action for wrongful discharge, plaintiff must allege that he was: 1) discharged, 2) in retaliation for his activities, and 3) that the discharge violates a clear mandate of public policy. Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill.2d 526, 529 (1988). The Illinois Supreme Court has reaffirmed the legal standard governing an employee’s burden of proving causation in a retaliatory discharge lawsuit. “Retaliatory discharge claims are a narrow exception to the general rule that employees are at will, thus, if an employer comes forward with a valid, non-pretextual reason for an employee’s discharge, and the trier of fact believes it, there can be no causation in a retaliatory discharge claim. Michael v. Precision Alliance Group, LLC, 2014 IL 117376 ¶ 39.

Plaintiff has not satisfied his burden that he was discharged in retaliation for his activities. While it is true that Claimant was discharged after he filed the Circuit Court lawsuit, after the State Police investigation, and after Director Johnston modified time off policies, no evidence was presented to convince this Court by a preponderance of the evidence that Respondent was motivated by an improper retaliatory animus. Director Johnston and Claimant clearly had a conflict, but the evidence does not support the claim that the State Police investigation caused Claimant’s termination. That was years prior to Claimant’s termination. The decision of Director Johnston that Claimant would no longer get excused leave to attend Medal of Honor was discretionary and while one would hope that it would be granted under this circumstance it was not mandated. Director Johnston was within his rights to conclude that Claimant’s military duties were not agency related. While, at first blush, it may seem odd that Claimant’s time off requests for CASA activities were not approved, especially after the Secretary of the Army intervened on Claimant’s behalf, it was within Director Johnston’s power as Director to determine whether or not a voluntary civil position affiliated with the Federal Government was within Claimant’s job duties as Deputy Director of this Illinois State Agency.

Similarly, no evidence was presented as to whether the allegations of wrong doing at the Quincy and Anna Homes were ever substantiated or that Claimant’s alleged knowledge of same had anything to do with his termination. No evidence was presented that Claimant’s reporting of those purported irregularities had anything to do with the decision to ask him to resign. Rather, Respondent presented unrebutted testimony from Director Dolgos that other Deputy Directors were asked to resign, that there was no funding in the budget for these positions either, and that no Deputy Director positions were ever refilled during Director Dolgos’ tenure. No evidence was presented on Deputy Director Boatright’s discharge circumstance, other than Claimant’s speculation about its purported connection to Boatright’s alleged reports of fraud.

Much of Claimant’s case is predicated upon what he believed to be misconduct by his superiors or his mistreatment by his superior in the months and years leading up to his termination. However, the cases are legion that post hoc, ergo propter hoc reasoning (after this, [*106] therefore because of this) is a logical fallacy, does not obviate the need to prove causation, and is not a good way to prove causation. Hussong v. Patel, 369 Ill.App.3d 924, 930 (2nd Dist. 2007); Czajka v. Department of Employment Security, 387 Ill.App.3d 168, 175 (1st Dist. 2008). While Claimant’s ultimate termination followed certain events, he has simply failed to convince the Court, by a preponderance of the evidence, that his knowledge of alleged wrongdoing or his speaking out about certain matters were the cause of the Respondent ultimately terminating his employment. Because none of the allegations of retaliatory animus have been proved, it cannot be fairly said that Claimant’s discharge violates a clear mandate of public policy. Further, Respondent presented a valid, non-pretextual reason for Claimant’s discharge (lack of budget), and the Court deems that explanation credible. As such, under Michael, supra, there can be no causation for this retaliatory or wrongful discharge claim.

Finally, the Court notes that Claimant chose not to proceed with his Circuit Court action against Defendants Johnston and Bergstrom. Therefore, he failed to exhaust his administrative remedies as those claims were not seen through to their conclusion. See 705 ILCS 505/25 (“any person who files a claim before the Court shall before seeking final determination of his or her claim, exhaust all the remedies and sources of recovery whether administrative or judicial except that the failure to file or pursue action against State employees, acting within the scope of their employment, shall not be a defense.”)

The “exhaustion requirement does not allow a claimant to voluntarily dismiss a viable cause of action.” Tranmer v. State of Illinois, 59 Ill. Ct. Cl. 346, 347 (2007). The Illinois Supreme Court specifically held that Johnston and Bergstrom were not acting within the scope of their employment as they were alleged to have made violations of the criminal law with respect to the Illinois State Police Investigation. See, Fritz, 209 Ill.2d at 311 - 312. Thus, Claimant could have pursued that action but did not.

Because the Court has concluded that Claimant has failed to prove his claim, it has no occasion to consider damages. Despite this ruling, a bitter pill we are sure, the Court would like to recognize Lt. Colonel Fritz for his valor and bravery for this county and for his ongoing service to the military and their families. His honor and service are in no way tarnished by this decision. It is simply a conclusion that a dispute between Claimant and his former employer did not resolve in his favor.

For the above and foregoing reasons, the Claimant’s claim is denied in its entirety.