Mirocha v. Palos Community Hospital, et al

Filing 136

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 12/7/2015. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH MIROCHA,
Plaintiff,
v.
PALOS COMMUNITY HOSPITAL
and KEN LASH,
Defendants.

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Case No. 11-cv-4542

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s motion for leave “to withdraw Plaintiff’s motion to file
second amended complaint” [122] in which Plaintiff seeks to file a new version of his second
amended complaint. Defendants oppose the motion, arguing that there has been substantial and
undue delay in bringing the proposed claims, the addition of the claims would prejudice them,
and the claims are futile. For the reasons set forth below, Plaintiff’s motion [122] is granted.
I.

Background
This case arises from the termination of Plaintiff Joseph Mirocha from Defendant Palos

Community Hospital (“PCH”) in April of 2011. Plaintiff was 58 years old when he was
terminated from his position as an electrical supervisor at PCH. See [124-1], Proposed Sec. Am.
Compl. (“SAC”) ¶¶ 9–11. Plaintiff alleges that PCH discriminated against him because of his
age in violation of the Age Discrimination in Employment Act. Id. at ¶ 4.
Prior to his termination, Plaintiff’s manager, Defendant Ken Lash, warned Plaintiff that
he had thirty days to bring the electrical department’s databases into full compliance. Id. at 12.
According to PCH’s written policies, such a task was not part of Plaintiff’s job description. Id. at
¶ 14. Lash subsequently gave Plaintiff a written warning for failing to complete the project. Id.

at ¶ 12. Shortly thereafter, Plaintiff complained to PCH’s human resources department that he
was being discriminated against because of his age. Id. at ¶ 23. Subsequently, on March 8,
2011, Lash issued a second memorandum detailing Plaintiff’s purported performance
deficiencies. See id. at ¶ 25. On March 28, 2011, Plaintiff filed a discrimination charge against
PCH alleging that PCH had discriminated against him because of his age and had retaliated
against him because of his complaint to human resources.

Id. at ¶ 27.

PCH terminated

Plaintiff’s employment on April 8, 2011. Id. at ¶ 30.
Plaintiff filed suit on July 5, 2011, alleging, among several other claims, defamation
against both Lash and PCH. Thereafter, the Court granted Defendants’ motion to dismiss and
dismissed, among other claims, the defamation claims. See [39], Mem. Op. at 5–7. Plaintiff
then moved for leave to file a first amended complaint. See [44]. In his motion, Plaintiff
explicitly stated that he was not seeking to amend the defamation claim against PCH. Id. at 1.
On February 4, 2013, nearly four months after filing the motion—and after the parties fully
briefed it—Plaintiff moved for leave to file a revised first amended complaint. See [58]. The
revised version also did not attempt to revive the defamation claim against PCH. The Court
allowed Plaintiff most of the amendments that he sought, and specifically noted that Plaintiff was
not seeking to amend his defamation claim against PCH. See [64], Stmt. at 1. Meanwhile,
discovery continued; fact discovery was completed by September 2013 and expert discovery by
June 2014. See [86, 100].
On July 31, 2014, over a month after the close of discovery, Plaintiff moved for leave to
file a second amended complaint. [107]. The proposed pleading would be the first of three
proposed versions of the second amended complaint. Plaintiff first sought to (1) add factual
allegations to paragraph 36 of his complaint, (2) join another PCH employee as a defendant, (3)

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bring a claim against the new defendant for defamation, and (4) resurrect his previously
dismissed claim for defamation against PCH under a new theory. See id. at 1–2.
A month and a half later, after Plaintiff’s motion was fully briefed, Plaintiff sought leave
to withdraw the motion and file the second version of the second amended complaint. See [118].
Plaintiff sought to add the same factual allegations to paragraph 36 and the new claim for
defamation against PCH, but wished to drop the claim against the other PCH employee. See id.
at 1–2. Plaintiff also sought to add a new claim for unused sick days, the value of which Plaintiff
claims he was entitled to upon termination. See id. at 2.
On March 6, 2015, some five and a half months later—and after Defendants again had
briefed Plaintiff’s motion—Plaintiff filed the instant motion to withdraw his second version of
the second amended complaint and replace it with the third version, at issue here. This version is
the same as the second, except that it seeks to add a state law claim under the Illinois Wage
Payment and Collection Act (“IWPCA”) for the unused sick days. See [122], Mot. at 1.
Defendants oppose the motion, arguing that there has been undue delay in bringing the
claims, that the new claims are futile, and that allowing the amendment would be unduly
prejudicial. The filing of Plaintiff’s reply was delayed by several months for personal reasons,
see [132], but the motion is now fully briefed and ready for ruling.
II.

Legal Standard
The Federal Rules of Civil Procedure provide that leave to amend a complaint should be

“freely give[n] * * * when justice so requires.” Fed. R. Civ. P. 15(a). Nevertheless, courts may
deny leave to amend if there is “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of

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amendment.” Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th
Cir. 2007) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962) (emphasis omitted). Delay alone
is normally insufficient to deny a motion to amend. See Dubicz v. Commonwealth Edison Co.,
377 F.3d 787, 792 (7th Cir. 2004). But “the longer the delay, the greater the presumption against
granting leave to amend[.]” King v. Cooke, 26 F.3d 720, 723 (7th Cir. 1994) (quotation marks
omitted). An amended complaint is futile if it would not withstand a motion to dismiss. See
Gandhi v. Sitara Capital Mgmt., LLC, 721 F.3d 865, 869 (7th Cir. 2013).
III.

Analysis
The Court will consider separately the amendments to paragraph 36, the revival of the

defamation claim against PCH, and the proposed breach of contract and IWPCA claims for
unused sick days against PCH.
A.

Paragraph 36

Plaintiff first seeks to add several allegations to paragraph 36 of the complaint. The
proposed allegations describe how Defendants caused him to suffer depression, insomnia, and
panic attacks for which he sought medical care and incurred related costs. [124-1], SAC ¶ 36.
According to Plaintiff, the new allegations are based on testimony given by one of his experts,
Dr. Paulette Trum, during her deposition on April 2, 2014. [124], Pl.’s Mem. at 2. As noted,
Plaintiff first sought to add these allegations in the first version of his proposed second amended
complaint, filed on July 31, 2014.
Defendants object to the amendment, but do not point to any particular prejudice or other
reason to deny leave to add these allegations. Although Plaintiff did wait nearly four months
after Dr. Trum’s deposition before seeking to add the allegations, they seem unlikely to prejudice
Defendants. Importantly, the allegations do not appear to raise any new legal issues that would

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require additional discovery. Rather, the allegations simply provide additional details about the
“extreme emotional distress” that Plaintiff allegedly suffered because of Defendants’ conduct.
See [124-1], SAC ¶ 36. Given the absence of any apparent prejudice and the relatively short
delay, the Court grants Plaintiff’s motion with respect to the proposed amendments to paragraph
36. See Park v. City of Chicago, 297 F.3d 606, 613 (7th Cir. 2002) (“Delay, standing alone, may
prove an insufficient ground to warrant denial of leave to amend the complaint; rather, the degree
of prejudice to the opposing party is a significant factor in determining whether the lateness of
the request ought to bar filing.”) (quotation marks omitted).
B.

Defamation Claim against PCH (Proposed Count VIII)

In his original complaint, Plaintiff claimed that PCH defamed him by having him
escorted from the hospital by a security guard after he was terminated. See [2], Compl. ¶ 57.
The claim was dismissed because the alleged conduct did not qualify as a per se defamatory act
under Illinois law.1 See [39], Mem. Op. at 5. Plaintiff did not attempt to replead the defamation
claim against PCH in his first amended complaint, as the Court noted in a prior order. See [64],
Stmt. at 1.
Plaintiff sought to revive his defamation claim against PCH, albeit under a different set of
facts, in the first version of his second amended complaint,2 which was filed nearly two years
after the Court dismissed the defamation claim. This time, the claim is based on “the common
nucleus of operative fact” that underlies Plaintiff’s defamation claim against Ken Lash—namely,
Lash’s “publishing [of] defamatory disciplinary memoranda” regarding Plaintiff’s job
1

To establish defamation per se, the acts alleged to be defamatory must be so “obviously or naturally
harmful” as to “falsely impute * * * a lack of integrity in the discharge of plaintiff’s duties of
employment.” Dubrovin v. Marshall Field’s & Co. Employee’s Credit Union, 536 N.E.2d 800, 803 (Ill.
App. Ct. 1989).

2

The defamation claim has remained the same in all three versions of Plaintiff’s second amended
complaint.

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performance. [124], Pl.’s Mem. at 2. Plaintiff’s theory seems to be that PCH defamed him when
an employee of its human resources department sent copies of Lash’s allegedly defamatory
memoranda to “one or more person(s).” [124-2], SAC ¶ 116. The only “person” specifically
identified by Plaintiff is the Illinois Department of Employment Security (“IDES”); PCH
allegedly sent copies to IDES following Plaintiff’s application for unemployment benefits “to
cause Plaintiff to lose his entitlement to unemployment benefits.” Id.
In arguing that he should be allowed to add the new defamation claim, Plaintiff stresses
that (1) he “is not in any manner trying to resurrect the claim [he] withdrew,” and (2) no new
discovery would be required. [124], Pl.’s Mem. at 3. Defendants counter that the Court should
not permit the assertion of a new defamation claim given Plaintiff’s inexplicable delay in seeking
leave to amend. They also assert that any such claim would be futile given that the statements at
issue relate to employee performance and the limited publication that is alleged falls within the
scope of an absolute privilege.
After considering the arguments of the parties, the Court concludes on balance that it
should allow Plaintiff to amend his complaint to add the new defamation claim. To be sure, the
delay occasioned by Plaintiff’s fits and starts in regard to his proposed amendments have delayed
the case considerably, to the understandable frustration of Defendants. These delays and the
numerous opportunities for Plaintiff to straighten out his pleadings counsel in favor of treating
this current iteration of the complaint as the final one, absent some truly unforeseeable events.
Moreover, it appears that Plaintiff may have an uphill battle in trying to establish that the
“reckless disregard” exception to the absolute privilege applies in this case. Defendants certainly
may present their legal arguments with the benefit of a full record in the dispositive motion that
they intend to file. See [127] at 12. However, given that (1) delay alone seldom is sufficient

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reason to deny leave to amend, (2) no additional discovery is required (or will be permitted) on
the defamation claim, (3) the claim is not the same one that Plaintiff previously abandoned, and
(4) the prejudice to Defendants from allowing the amendment appears to be minimal as their
arguments for summary judgment on the claim remain to be presented, Plaintiff’s motion for
leave to amend is granted as to the proposed claim for defamation against PCH in Count VIII of
the second amended complaint.
C.

Breach of Contract and IWPCA Claims for Unused Sick Days (Proposed
Counts IX and X)

Plaintiff also seeks to add two claims to recover the value of his unused sick days.
Plaintiff sought to assert the first of these claims—breach of contract for the value of the sick
days—in the second version of his second amended complaint. Nearly six months later, Plaintiff
withdrew that version and moved to replace it with the version at issue here, which includes an
IWPCA claim for the value of the unused days. The IWPCA allows an employee to bring a civil
action against his employer to recover wages “pursuant to an employment contract or
agreement.” See 820 ILCS 115/2.
It appears that Plaintiff initially demanded payment for the value of the sick days back in
January of 2013. In particular, Defendants claim that Plaintiff’s attorney sent a letter to their
attorney on January 18, 2013 demanding $16,800—the same amount that Plaintiff now seeks for
his unused days. [127], Defs.’ Resp. at 11. Defendants further assert that their attorney rejected
this demand on February 18, 2013. Id. at 12. Defendants have attached copies of Plaintiff’s
demand letter and PCH’s denial letter in support of their averments. See [127], Exs. 5, 6.
Defendants also have included in their response brief a statement from the hospital’s Human
Resources policy which states as follows: “Accrued paid sick time and/or hours over 600 is not
paid out to employees at termination of employment.”
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[127] at 10-11 (emphasis added).

Plaintiff responds that he is seeking payment for accrued paid sick time and/or hours under 600
hours, and thus there appears to be a disconnect between Plaintiff’s proposed claim and
Defendants’ present argument against it. While the Court is not in position to bring further
clarity to the dispute at the moment, for present purposes it is significant that Plaintiff did not
have a copy of the written policy upon which his proposed new claim rests until around the time
in 2014 that he began his (admittedly laborious) efforts to arrive at a new operative complaint.
In addition, it appears that any additional discovery that Plaintiff would seek in regard to Counts
IX and X would be minimal and any responsive documents likely are already in Defendants’
possession.3
For all of these reasons, Plaintiff’s motion for leave to amend is granted with respect to
the proposed breach of contract and IWPCA claims (Counts IX and X, respectively).
IV.

Conclusion
For the reasons set forth above, Plaintiff’s motion for leave to file an amended complaint

[122] is granted. As noted above, the Court anticipates that this will be the final amendment
barring unforeseen circumstances. The parties are directed to file no later than 12/22/2015 a
joint status report either confirming that discovery is complete or setting out any limited
discovery that remains to taken (consistent with the discussion above) and a deadline for its
completion. In the status report, the parties also should provide a proposed briefing schedule on
any dispositive motions and indicate whether they wish to schedule a settlement conference prior
to embarking on any further discovery and the dispositive motion schedule. The Court will
either enter a briefing schedule on dispositive motions or set this case for status hearing after
reviewing the joint status report.
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It is not clear whether the responses to the discovery requests set forth on page 8 of Plaintiff’s reply brief
already provided Plaintiff with the “only discovery” he claims to need—namely, the “exact number of
hours and dollars for which he accrued but did not use his sick days.”

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Dated: December 7, 2015

____________________________
Robert M. Dow, Jr.
United States District Judge

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