Riedlinger v. Hudson Respiratory Care, Inc.

• Decision Date: 21 March 2007
• Docket Number: No. 05 C 6769.,05 C 6769.
• Citation: 478 F.Supp.2d 1051
• Parties: Emil RIEDLINGER, Plaintiff, v. HUDSON RESPIRATORY CARE, INC., d/b/a Teleflex Medical, Defendant.
• Court: U.S. District Court — Northern District of Illinois

478 F.Supp.2d 1051

Emil RIEDLINGER, Plaintiff, v. HUDSON RESPIRATORY CARE, INC., d/b/a Teleflex Medical, Defendant.

No. 05 C 6769.

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

March 21, 2007.

Lisa R. Kane, Janice A. Wegner, Kevin R. Vodak, Lisa R. Kane, Wilson Skalinder, Lisa Kane & Associates, P.C., Chicago, IL, for Plaintiff.

Michael J. Ranallo, Holland & Knight LLC, Chicago, IL, Stephen C. Sutton, Baker & Hostetler LLP, Cleveland, OH, for Defendant.

OPINION AND ORDER

NORGLE, District Judge.

Before the court is Defendant Hudson Respiratory Care, Inc.'s Motion for Summary Judgment. For the following reasons, the Motion is granted.

I. BACKGROUND

A. Facts

Plaintiff Emil Riedlinger ("Riedlinger") was hired by Defendant Hudson Respiratory Care, Inc. ("Hudson") as a Senior Plastics Engineer at Hudson's Arlington Heights, Illinois facility, in October 2004. Riedlinger is a citizen of the state of Illinois. Hudson is a corporation incorporated under the laws of the state of California, with its principal place of business in Durham, North Carolina. Hudson manufactures products used in respiratory health care, including sterile bottled water, humidifier and nebulizer adapters, and Addipak products.

In his First Amended Complaint, Riedlinger makes the following allegations. He indicates that he has over twenty-nine years of experience in the health care product manufacturing industry. Several months after being hired by Hudson, Riedlinger became aware of the presence of mold in the production areas of the Arlington Heights facility. After air quality testing confirmed the presence of mold in the facility, Hudson held several managerial meetings in April 2005 regarding this problem. Riedlinger attended these meetings. Hudson then directed Riedlinger to find an individual with the qualifications to resolve the mold issue. Riedlinger contacted Jim Pickens ("Pickens"), a certified mold remediator from Environmental Health Services, Inc.

Pickens performed further testing at Hudson's Arlington Heights plant, and advised Hudson on April 13, 2005 that toxic mold was present in the production and warehousing areas of the facility. Pickens advised facility managers that professional cleaning would be required to decontaminate the entire plant. Plant Manager Kevin Rush ("Rush"), and other managerial employees, however, decided to assign Hudson employees to mold abatement. Riedlinger was one of the individuals assigned, and he advised plant management of the mold abatement progress in the manufacturing area.

Additional testing by Pickens, however, indicated that high levels of toxic mold remained in the facility's production and warehousing areas despite the abatement efforts. Riedlinger alleges Hudson ignored these findings, and continued production of, inter alia, sterile respiratory therapy bottles intended to be used by respiratory patients. Riedlinger then alleges that he advised members of plant management in May 2005 of his opinion that the facility would be shut down if the mold problems were ever discovered by the United States Food and Drug Administration ("FDA"). Riedlinger alleges that he held a good faith, reasonable belief that continued production at the facility would be a violation of federal law, but he does not specify which statute or regulation he believed that Hudson was violating. Moreover, Riedlinger does not allege that he ever contacted the FDA or any other governmental agency regarding Hudson's alleged mold problem.

On June 15, 2005, plant management met with Riedlinger and informed him that another Hudson employee, John Posey, who was directly involved in the mold abatement efforts, was no longer with the company. Rush then presented Riedlinger with a Performance Improvement Plan ("PIP"), in which Riedlinger was accused of failing to meet performance expectations. Rush allegedly indicated to Riedlinger that "[i]f you don't sign this document by the end of the day, you will be terminated." Riedlinger disagreed with the assessment of his performance, and declined to sign the PIP. Rush then allegedly terminated Riedlinger.

The next day, Riedlinger returned to the plant to retrieve his personal belongings. Rush then directed Riedlinger to meet with him and a Human Resources representative. During this meeting, Riedlinger was informed that he had not been terminated, but merely suspended. Riedlinger was instructed to take a couple of days off, and to return on June 20, 2005 with the signed PIP. Riedlinger returned on June 20, 2005 and again refused to sign the PIP. He did not sign the PIP conditionally, under protest, or provisionally in any respect. Riedlinger alleges that he was immediately terminated.

B. Procedural History

Riedlinger filed his First Amended Complaint for common law retaliatory discharge on December 30, 2005. Hudson filed its Motion for Summary Judgment on January 3, 2007. Riedlinger filed his Response on February 5, 2007, and Hudson filed its Reply on February 20, 2007. The Motion is fully briefed and before the court.

II. DISCUSSION

A. Standard of Decision

Summary judgment is permissible when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir.1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Educational Services, Inc., 176 F.3d 934, 936 (7th Cir.1999).

In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. FED. R.Civ.P. 56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir.1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); see also First Nat'l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 280, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir.1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When the defendant moves for summary judgment, the court must view the record and all inferences in a light most favorable to the plaintiff. Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 821 (7th Cir.2000). However, the inferences construed in the plaintiff's favor must be drawn from specific facts identified in the record that support the plaintiff's position. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir.1994). Under this standard, "[c]onclusory allegations alone cannot defeat a motion for summary judgment." Thomas v. Christ Hospital and Medical Center, 328 F.3d, 890, 892-93 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

B. Retaliatory Discharge under Illinois Law

In this diversity action, the substantive law of the forum state, Illinois, controls. Clark v. State Farm Mut. Auto. Ins. Co., 473 F.3d 708, 712 n. 1 (7th Cir. 2007) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In Illinois, the general rule is that an employer may discharge an employee for any reason, or no reason at all. Hartlein v. Illinois Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 601 N.E.2d 720, 728 (1992); Crampton v. Abbott Labs., 186 F.Supp.2d 850, 855 (N.D.Ill.2002). The tort of retaliatory discharge, however, is an exception to the employment-at-will doctrine. Palmateer v. Int'l Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 878 (1981). In order to establish a valid claim for retaliatory discharge, an employee must show that he or she "has been (1) discharged; (2) in retaliation for the employee's activities; and (3) that the discharge violates a clear mandate of public policy." Hartlein, 176 Ill.Dec. 22, 601 N.E.2d at 728; Lanning v. Morris Mobile Meals, Inc., 308 Ill.App.3d 490, 242 Ill.Dec. 173, 720 N.E.2d 1128, 1130 (1999). Illinois courts have indicated that there are only two situations in which a cause of action for retaliatory discharge arises: where an employee makes a workman's compensation claim which leads to his or her termination, Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 357 (1978), and where an employee's termination results from his or her "whistleblowing" activities. Palmateer, 52 Ill.Dec. 13, 421 N.E.2d at 879-80; McGrath v. CCC Info. Sens., 314 Ill.App.3d 431, 246 Ill.Dec. 856, 731 N.E.2d 384, 390 (2000).

On January 1, 2004 the Whistleblower Act, 740 ILL. COMP. STAT. 174/1-174/35, became effective in Illinois. Pursuant to this Act, "[a]n employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation." 740 ILL. COMP. STAT. 174/15. This statute has not received a great deal of attention from either Illinois courts or federal courts in the state of Illinois. The courts that have dealt with this statute, however, have determined that the Whistleblower Act has codified the common law tort of retaliatory discharge in Illinois. Sutherland v. Norfolk S. Ry., 356 Ill.App.3d 620, 292 Ill.Dec. 585, 826 N.E.2d 1021, 1026 n. 4 (2005) ("The `whistleblower' cause of action has since been codified...