Carlos E. Nolasco Morales v. State of Illinois

OPINION

BURNS, J.

This matter comes before the Court on the Respondent’s Motion to Dismiss pursuant to Section 2-619(a)(1) and (9) of the Illinois Code of Civil Procedure. 735 ILCS 2-619. The Claimant filed a Response. 2 The Court having read the pleadings and being fully advised in the premises finds:

BACKGROUND

The Claimant, Carlos E. Nolasco Morales M.D., an assistant professor at Southern Illinois University from 2015 to 2020, has filed this two-count complaint for breach of contract seeking $296,083.48 in the form of lost wages and employment benefits that he allegedly lost as a result of discipline imposed by the Respondent. Specifically, Claimant contends that Respondent initiated steps to terminate his employment in April 2019 (Count I) and then subsequently suspended him from employment in October 2019 (Count II) without providing him various rights regarding notice, opportunity to be heard, progressive discipline and appeal before taking such measures. Claimant asserts he possessed such rights pursuant to a written disciplinary policy that constituted a contract with Claimant, and that Respondent breached the contract by failing to follow the policy.

FACTS

The Claimant joined the faculty at SIU medical school (the “University”) as an assistant professor on July 20, 2015, on a “continuing appointment” basis. This means that his employment would be automatically renewed each year unless given notice otherwise pursuant to University regulations. As part of his employment, Claimant was able to earn additional clinical income from his medical care of patients for SIU Physicians and Surgeons, Inc., the medical practice arm of the School of Medicine.

Subsequent to the filing of its response brief, Claimant filed a Motion Asking Leave to Supplement His Memorandum and Affidavit in Response to Respondent’s Motion to Dismiss, which included some additional argument and e-mails relevant to his case. Respondent filed a response in opposition to said motion. The Court will grant the Claimant’s motion to supplement and accept the Respondent’s filed response in opposition as a Reply to the Claimant’s Response.

[*141] On April 19, 2019, Claimant was summoned to meet with his supervisor, Andrew Varney, M.D., Angela K. Doolin, a human resource officer, and Eric Linson, assistant to the Chairperson of the Department of Medicine (the “Department”). At the meeting he was disciplined by receiving a written letter of reprimand for “chronic tardiness and ongoing behavioral concerns” and was informed that his continuing appointment was being converted to a “term appointment” that would end on April 30, 2020. A “term appointment” guarantees employment for only a specified period of time with no right to employment following the expiration of the term.

On April 23, 2019, Claimant sent an e-mail to Doolin informing her of his belief that the University had violated its own policies in taking the actions it did against him. Specifically, the e-mail cited the University’s Disciplinary Action and Termination for Cause policy (“Disciplinary Policy”) which he claimed required that he be given written notice of the specific charge, a chance to have an advisor present at the meeting, and a meaningful opportunity to contest the charges. Doolin responded by e-mail later that same day, stating that the decision to convert Claimant’s appointment to a “term appointment” was at the sole discretion of the Department but that it was the intent of all parties to assist Claimant in any way possible so that he could potentially return to a continuing appointment.

On May 3, 2019, according to Claimant, he met with Doolin in person to discuss his situation. Claimant says she told him that he was “under the microscope” and “at their mercy” but otherwise did not address his concerns set forth in his earlier e-mail. On May 16, 2019, Claimant says he met with Dr. John Flack, Chairperson of the Department. Claimant says he laid out his concerns but was met with disinterest and told “details are not important” and that he should focus on correcting the problems that led to his change in employment status. On July 4, 2019, and July 26, 2019, Claimant sent e-mails to Dr. Flack and Dr. Varney to set up meetings to discuss his status but neither responded. On August 5, 2019, Claimant says he met with Dr. Varney for his annual evaluation, in which they discussed various aspects of his work performance.

On October 3, 2019, Claimant met with Dr. Varney and Doolin, where he was informed that he was being placed on paid administrative leave. A letter dated the same day signed by Doolin informed Claimant that he was being placed on leave due to “continued concerns regarding your behavior that impacts staff, learners, and patients…” but that he would continue to be paid his full faculty salary until the expiration of his term on April 20, 2020. With the loss of his faculty position, however, Claimant would no longer be able to see patients as part of the medical school’s clinical offering, meaning he could no longer earn the additional side income that came from that aspect of his employment.

On April 19, 2021, Claimant filed the instant Complaint in this Court alleging breach of contract by the Respondent for its alleged failure to follow its Disciplinary Policy in issuing its discipline against him. Claimant states that due to Respondent’s alleges breaches, he suffered damage in the form of lost salary and benefits that he would have earned from May 1, 2020, through April 30, 2021 (Count I) as well as the lost clinical income that he would have earned from October 3, 2019 through April 30, 2021 (Count II).

On June 21, 2021, Respondent filed the instant Motion to Dismiss on the basis that (1) Claimant cannot establish substantial compliance with the terms of the alleged employment [*142] contract and (2) Claimant has failed to exhaust his administrative remedies as required by Section 25 of the Court of Claims Act.

ANALYSIS

Section 25 of the Court of Claims Act states that any person who files a claim in the court shall, before seeking final determination of his or her claim, exhaust all other remedies and sources of recovery whether administrative or judicial. 705 ILCS 505/25. The Court of Claims adopted this legislation at 74 Ill. Admin. Code 790.60 (2000). Absent such an exhaustion of remedies, the Court simply does not have jurisdiction to consider a claim. Devaney v. State, 48 Ill. Ct. Cl. 461 (1996).

In this case , the Complaint alleges that the Disciplinary Policy formed a binding contract between Claimant and the University. That policy contains a section titled “Formal Grievance” that states, in relevant part, “If the faculty/staff member believes a termination is without adequate cause, he/she shall have the opportunity to receive a formal hearing at the level of the Chancellor of SIUC in accordance with applicable university grievance procedures. Other disciplinary sanctions may also be appealed at the appropriate level, pursuant to the grievance procedures. Any grievance must be filed within the time limits specified in the applicable grievance procedure.”

The grievance procedures referenced in the Disciplinary Policy, and applicable to this case, are found in the Grievance Procedure for Faculty policy (“BOT Grievance Policy”) and the Grievance Policy and Procedures-Faculty and Principle Administrative Staff (“SOM Grievance Policy”). The BOT Grievance Policy states, in relevant part, that a faculty member “may initiate a grievance as to any action or omission to act” by an administrator or administrative/professional staff, by submitting a formal request in writing and within 60 calendar days after grievant has become aware of the action being grieved. Similarly, the SOM Grievance Policy affords a faculty member who believes he or she is the victim of a violation, misrepresentation or misapplication of any governing rule or policy the opportunity to file a formal grievance. This policy also sets forth specific procedures for how to submit such a grievance as well as the appeal process for any unsatisfactory ruling.

Here, Claimant does not allege that he filed any grievance under either the Disciplinary Policy, the BOT Grievance Policy or the SOM Grievance Policy with respect to any of the alleged discipline imposed. Respondent attaches to its Motion to Dismiss the affidavit of Doolin attesting that Claimant never filed any such grievance with respect to the written reprimand on or about April 19, 2019, the conversion of his contract from a continuing appointment to a term appointment, or the paid administrative leave.

In his response, Claimant does not dispute that he did not file any grievances in this matter. Instead, he argues that these University grievance policies were optional (an employee “may” pursue a grievance) and not required as a precondition for challenging its actions in other venues. Claimant also argues that he effectively did exhaust his remedies as to Count I by e-mailing Doolin and his superiors in the days after the April 19, 2019, meeting, and by meeting with Dr. Flack for his annual job evaluation, and that he was not required to file a grievance as to Count II because it [*143] would have been futile to do so given that his claim involved the alleged loss of clinical income that could only be recovered as an award for damages in this Court.

We find Claimant’s arguments unavailing. The exhaustion of remedies requirement is jurisdictional for this Court. Devaney, 48 Ill. Ct. Cl. at 463. The fact that a grievance policy may be discretionary does not absolve a claimant from this Court’s Section 25 requirement. Hall v. State, 47 Ill. Ct. Cl. 434 (1995)(holding that state employee wrongly suspended 10 days from his job could not bring claim for lost wages where he failed to exhaust his remedies by following the grievance process provided by the Illinois Administrative Code); See also Devaney, 48 Ill. Ct. Cl. at 463 (granting motion to dismiss based on claimant’s failure to avail himself of grievance process). As this Court’s precedents make clear, the relevant question in the employment context is whether a grievance process is available. Id. As for Claimant’s contention that he effectively exhausted his remedies as to Count I by e-mailing and meeting with his superiors, we note that Section 25 requires a claimant to exhaust all available remedies. Boe v. State, 37 Ill. Ct. Cl. 72 (1984). That means following up with a formal grievance to higher authorities if such a process is available, as it was in this case.

Similarly, Claimant’s contention that it would have been futile to file a grievance over his October 3, 2019, suspension (Count II) is conclusory. Claimant cites to Lowery v. State, 72 Ill. Ct. Cl. 102 (2020), in which we allowed a claim to proceed despite the claimant in that case failing to pursue a university’s grievance procedures. Lowery, however, is distinguishable for a number of reasons, including that the claimant in that case, a Division I basketball coach, had an individual employment contract that expressly stated that arbitration was the sole and exclusive remedy available and included no mention of any grievance process. Lowery, 72 Ill. Ct. Cl. at 105. Here, by contrast, the very contract that Claimant purports to bind the Respondent clearly provided him an opportunity to file a grievance and have his complaints about due process heard by a university administrator with authority to do something about it.

Thus, while it is true that this Court has held in rare cases that a claimant need not pursue a grievance where no actual remedy could be gained, there are no set of facts in this case that could establish such a proposition. Had Claimant promptly filed a grievance after the October 3, 2019, action he might have been able to get reinstated to his position, which would have at least mitigated his losses even if the University could not issue him back pay for the time lost in the clinic. Moreover, had Claimant properly filed a grievance after the April 19, 2019, action he would have been able to afford Respondent the opportunity to remedy the situation and correct any errors, which might have prevented his October 3, 2019, suspension.

In Devaney, supra, we considered the claim of a state employee allegedly discharged in retaliation for exercising his rights under the Worker’s Compensation Act. The employee failed to avail himself of the grievance process afforded him by the Merit Commission for the Office of the Secretary of State. In dismissing the case for failure to exhaust remedies, the Court noted that the requirement is jurisdictional for the Court of Claims, and we are not at liberty to disregard it. “[The Court of Claims] has a long history of summarily rejecting claims filed by those who have failed to fully pursue their remedies elsewhere, even when employment issues were at stake.” Devaney v. State, 48 Ill. Ct. Cl. 461, 463.

[*144] In conclusion, if Claimant was not provided the process he claims was due, it was incumbent upon him to comply with the internal remedies available to him to bring that claim to Respondent’s attention such that Respondent could remedy the alleged procedural deficiencies. Claimant failed to do so in this case and, thus, he has not met the Section 25 requirement to exhaust all of his available administrative remedies prior to having a claim heard in this Court.

Because we find that the claim must be dismissed for jurisdictional reasons, we need not address the Respondent’s other arguments for dismissal.

For the foregoing reasons, IT IS HEREBY ORDERED that the Respondent’s Motion to Dismiss is GRANTED and the Complaint is dismissed with prejudice.