By Lorene D. Park, J.D. Refusing to dismiss a university employee’s intentional infliction of emotional distress claim, a federal district court in Illinois explained that the factual allegations went beyond the typical employment dispute and included an instance where a manager, despite knowing of an employee’s high-risk pregnancy, had her remain at her desk in bloody clothing for two hours before granting permission for her to leave to go to the hospital. However, the employee’s retaliation claims under the False Claims Act (FCA) and state whistleblower law that she was retaliated against for refusing to engage in unlawful activity were dismissed because she did not identify the law or regulation that would have been violated (Reed v. Colorado Technical University, March 15, 2016, Kennelly, M.). The employee was an admissions advisor at the university, recruiting students and walking them through the financial aid process. She claimed she was a top performer and received the employee of the month award several times. In July 2013, one of her managers observed her phone call with a prospective student and asked why she didn’t enroll the student. The employee said she refused because he only wanted the financial aid and enrolling him would violate Department of Education regulations. She also suggested he could have been a DOE investigator testing for noncompliance. The manager disagreed and yelled at the employee loud enough to be overheard by coworkers. A second manager came in and issued a final warning to her. The same two managers also allegedly humiliated and harassed her, criticized her appearance, started rumors about her, excluded her from meetings and social gatherings, took away her managerial work, and frequently reprimanded her over inconsequential matters. She complained to HR and one of the managers told her and her fiance (a coworker who had filed an EEOC charge against the university months earlier) to “stop making trouble.” Inconvenient pregnancy. Meanwhile, the employee became pregnant and it turned out to be a high-risk pregnancy. At one point, she was offered a position at an affiliated university but the offer was put on hold because the final warning was still in her file, though the manager said he would remove it. When she confronted him, he responded that she no longer deserved the move owing to the “inconveniency of [her] pregnancy.” He also said the university did not want to be inconvenienced by her upcoming maternity leave and he urged her to resign. Thereafter, the harassment got worse and the managers gave her a hard time about going to the doctor. At one point, her manager refused to allow her leave the building for a medical emergency, having her sit at her desk for two hours with her pants “soaked with blood” before giving her permission to leave. After she gave birth, she claimed the employer checked her LinkedIn profile and asked coworkers to look on Facebook to see if she really had a baby. Whistleblower retaliation claims fail. Dismissing the employee’s FCA retaliation claim, the court found that the employee failed to allege that she engaged in protected activity. Though she claimed she declined to participate in a violation of “DOE law” by enrolling an applicant who only wanted to get financial aid, she did not identify the laws, regulations, or rules to which she was referring. In addition, a claim under Section 3730(h)(1) focuses on whether a plaintiff made an effort to stop a violation of the FCA, not a violation of some other federal law. The court also dismissed the employee’s claim under the Illinois Whistleblower Act, which precludes retaliation against an employee who refuses to participate in an activity that violates state or federal law. Once again, she did not identify any state or federal law, rule, or regulation that would have been violated had she enrolled the student in question. Emotional distress claim proceeds. On the other hand, the court refused to dismiss the employee’s intentional infliction of emotional distress claim. While the employer argued that the tort claim was preempted by the Illinois Workers’ Compensation Act, the court disagreed. One way to avoid preemption is to show the injury was not accidental and here, alleging participation by managers in the infliction of the workplace injury was enough to avoid preemption. The IIED claim was also not preempted by the Illinois Human Rights Act. Though the Act preempts claims of an alleged civil rights violation, including a claim of emotional distress that is “inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the [IHRA] itself,” the facts in this case went beyond the typical employment dispute, explained the court. While there were the more typical allegations of being criticized, excluded from meetings, and denied privileges, there was also an allegation that the manager refused to allow the employee to seek medical attention connected with her pregnancy (which he knew about). Indeed, he allegedly had her stay at her desk, in bloody clothing, for two hours before granting her request to go to the hospital. That alleged action took advantage of a known physical vulnerability and put the health of both the employee and her unborn child at risk.
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