Thompson v. N.J.

• Citation: 403 Ill.Dec. 297,53 N.E.3d 351
• Decision Date: 29 April 2016
• Docket Number: No. 1–14–2918.,1–14–2918.
• Parties: Mark THOMPSON, Plaintiff–Appellant, v. N.J.; Claudia Welke, M.D.; Stephanie Locascio, M.S., NCC, LP C; and NorthShore University HealthSystem, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

53 N.E.3d 351
403 Ill.Dec. 297

Mark THOMPSON, Plaintiff–Appellant
v.
N.J.; Claudia Welke, M.D.; Stephanie Locascio, M.S., NCC, LP C; and NorthShore University HealthSystem, Defendants–Appellees.

No. 1–14–2918.

Appellate Court of Illinois, First District, Fifth Division.

April 29, 2016.

53 N.E.3d 354

Mark Thompson, appellant pro se.

Kevin J. Clancy, of Lowis & Gellen LLP, Chicago, for appellees.

OPINION

Presiding Justice REYES delivered the judgment of the court, with opinion.

403 Ill.Dec. 300

¶ 1 Plaintiff Mark Thompson, filed a three-count declaratory judgment complaint

403 Ill.Dec. 301

53 N.E.3d 355

against defendants N.J.,¹ Welke (N.J.'s psychiatrist), Locascio (N.J.'s therapist), and NorthShore University HealthSystem (the record custodian of N.J.'s mental health records) (collectively, the defendants) in the circuit court of Cook County. Plaintiff sought a declaration that N.J., a former high school student he privately coached, waived the confidentiality protections of section 10(a)(1) of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/10(a)(1) (West 2014)) by introducing her mental condition as part of a discharge proceeding brought by the Illinois State Board of Education (Board) against him.

¶ 2 In response, N.J. filed a motion to dismiss pursuant to section 2–619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2–619.1 (West 2014) ), arguing she did not assert a claim against plaintiff nor did she introduce her mental condition as required under the Act. In a written order, the circuit court granted the motion to dismiss pursuant to section 2–615 of the Code (735 ILCS 5/2–615 (West 2014) ) with prejudice, finding plaintiff could not allege that N.J. filed a “claim” so as to bring her under the purview of section 10 of the Act.

¶ 3 Plaintiff now appeals the order of the circuit court of Cook County dismissing his declaratory judgment complaint with prejudice. On appeal, plaintiff, pro se, contends he sufficiently alleged that N.J. waived her privilege under the Act so as to warrant the disclosure of her mental health records and, in turn, have a declaratory judgment entered in his favor. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 4 BACKGROUND

¶ 5 The following facts are taken from plaintiff's complaint and the exhibits attached therein. Plaintiff's complaint provides an extensive history of his employment with the Chicago Public Schools (CPS) and his private coaching relationship with N.J. We recite only those facts relevant to our opinion herein.

¶ 6 On August 10, 2012, the Board approved charges against plaintiff pursuant to section 34–85 of the Illinois School Code (105 ILCS 5/34–85 (West 2012) ) in a dismissal proceeding seeking to terminate his employment as a CPS employee. The charges specified plaintiff conducted himself in an unbecoming manner while a CPS employee when he, after a prior warning for serious employee misconduct, engaged in inappropriate conduct of a sexual nature with N.J., a 17–year–old female student, in March of 2010. The charges further specified that plaintiff sent threatening text messages to N.J.'s mother in February of 2012. The disclosure of plaintiff's inappropriate sexual conduct with a student arose from Welke's May 3, 2011, report to the Illinois Department of Children and Family Services (DCFS) wherein Welke reported that N.J. had disclosed that plaintiff sexually assaulted her when she was 17 years old.

¶ 7 The charges against plaintiff specifically provided:

“1. Violating the July 28, 2004 Resolution By The Board of Education of The City of Chicago Declaring Certain Acts of Misconduct by Employees to be Particularly Egregious Warranting Severe Disciplinary Action, Bod. Rep. No. 04–0728–RS2.

53 N.E.3d 356

403 Ill.Dec. 302

2. Violating Section 5–9 of the Chicago Public Schools' Employee Discipline and Due Process Policy that prohibits any cruel, immoral, negligent, or criminal conduct or communication to a student, that causes psychological or physical harm or injury to a student.

3. Violating of [sic ] Section 5–10 of the Chicago Public Schools' Employee Discipline and Due Process Policy that prohibits employees from soliciting, commanding, urging, inciting or requesting a sexual act of a student; or intentionally or knowingly engaging in any sexual conduct or act with a student.

4. Violation of Section 5–15 of the Chicago Public Schools' Employee Discipline and Due Process Policy that prohibits employees from engaging in any act or conduct prohibited by Board Rules, Municipal Code of the City or [sic ] Chicago, the Illinois Compiled Statutes, applicable laws of other states, or federal statutes, that may be deemed irremediable conduct.

5. Violation of Section 5–17 of the Chicago Public Schools' Employee Discipline and Due Process Policy that prohibits the violation of school rules, or Board rules, policies, or procedures which result in behaviors that grossly disrupt the educational process in the classroom and/or school.

6. Conduct unbecoming a Chicago Public Schools employee.”

¶ 8 The matter was initially set for a dismissal hearing on August 31, 2012, but was subsequently continued to September 30, 2013. On September 18, 2013, the hearing officer signed subpoenas requested by plaintiff directing Locascio and Welke to provide, “Any and all records pertaining to [N.J.] for diagnosis, treatment, and counseling for any medical or mental condition including but not limited to any psychiatric and psychological conditions.”

¶ 9 On September 25, 2013, Welke brought an emergency motion to quash the subpoena, arguing that the subpoena failed to comply with the Act. After reviewing Welke's motion, plaintiff's counsel voluntarily withdrew the subpoenas issued to Locascio and Welke.

¶ 10 Thereafter, the hearing officer indicated in an e-mail to both parties' counsel that during a conference call he had previously agreed with plaintiff's counsel that N.J.'s mental health records were “relevant and necessary for the purpose of preparing for the cross-examination” of N.J. The hearing officer, however, indicated that the parties had not previously discussed what provision of section 10 of the Act allowed such a disclosure. The hearing officer then took the matter under advisement.

¶ 11 On October 26, 2013, the hearing officer issued a ruling regarding his ability to order the disclosure of N.J.'s mental health records. After interpreting section 10 of the Act, the hearing officer determined that he did not have the authority to issue such a subpoena and that the matter regarding the disclosure of N.J.'s mental health records had to be resolved in the circuit court. Nonetheless, the hearing officer indicated the hearing scheduled for December 9, 2013, would proceed, but that N.J. could be recalled should her mental health records subsequently be disclosed.

¶ 12 Thereafter, on December 2, 2013, plaintiff filed a three-count declaratory judgment complaint against defendants. Plaintiff sought a declaration that N.J. waived the protections of section 10(a)(1) of the Act by introducing her mental condition as part of the discharge proceedings brought by the Board. Specifically, plaintiff alleged that N.J. introduced her mental condition during interviews with Linda

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Brown (Brown) an investigator with the Office of the Inspector General (OIG). During N.J.'s first interview, N.J. disclosed to Brown that she was being treated by Locascio and Welke and that she shared with Locascio “some of the things” plaintiff said to her. Thereafter, N.J. signed a consent form which allowed Brown to speak with Locascio regarding the treatment she provided to N.J. as it related to plaintiff. The consent form was valid for one year. Within that year, Brown interviewed Locascio four times and Locascio disclosed aspects of N.J.'s treatment as it related to plaintiff. Plaintiff's complaint further alleged that during the discharge proceedings counsel for the Board informed him that Locascio and Welke had information relevant to the charges against him.

¶ 13 Attached to plaintiff's complaint were 14 exhibits: (1) a May 3, 2011, DCFS report of abuse and neglect; (2) a May 3, 2011, DCFS “Contact Note”; (3) a June 24, 2011, report by Brown regarding her interview of N.J.; (4) a June 16, 2011, consent form signed by N.J. authorizing Locascio's employer to release “confidential information regarding Mark Thompson”; (5) a series of four reports of interviews Brown had with Locascio dated July 28 and November 9, 2011, and May 10 and May 12, 2012; (6) a May 30, 2012, investigative summary from the OIG; (7) the notice of dismissal hearing and list of six charges brought against plaintiff; (8) the Board's response to plaintiff's request to produce in the dismissal proceeding; (9) plaintiff's subpoena of Welke; (10) plaintiff's subpoena of Locascio; (11) Welke's emergency...