In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

BOTVINIK v. RUSH UNIVERSITY MEDICAL CENTER (July 24, 2009) 

In his last year of a residency at Rush University Medical Center, Bradley Botvinik was accused of playing a prank on a female physician by sending her unwanted, sexually explicit items. Botvinik denied the charges and was never disciplined as a result. Botvinik entered into an employment agreement with a physicians’ association in Florida. The hospital at which the physicians practiced granted Botvinik temporary privileges and began processing his application for permanent privileges. Before he moved to Florida, Botvinik learned from his new employer and the hospital that the hospital had received negative evaluations of Botvinik's work and suspended his temporary privileges. Botvinik withdrew his application for privileges once he realized it was going to be denied. He filed this action against Rush and five Rush physicians. He alleged that the defendants tortiously interfered with his expectation of employment by telling the hospital about his involvement in the sex scandal. The district court granted summary judgment to the defendants. Botvinik appeals.

In their opinion, Judges Bauer, Sykes and Tinder affirmed. The Court stated that one of the elements of tortious interference in Illinois is a purposeful interference by the defendant. The Court agreed with the lower court that Botvinik failed to present evidence on this element. Four of the five defendant physicians swore that they provided no evaluation of any kind to the Florida hospital. Although one physician did speak with the hospital about Botvinik, the record is silent with respect to whether the hospital relied on anything he said in making its decision.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

BREGIN v. LIQUIDEBT SYSTEMS, INC. (November 19, 2008)

Donald Bregin was employed as an accounts receivable collector for North American Van Lines, Inc. (“NAVLI”) until the late 1990s. Later, he was a consultant for SIRVA , NAVLI’s parent. In this role, Bregin was involved in NAVLI’s efforts to outsource its collection services. In fact, Bregin took part in negotiations that resulted in a contract between NAVLI and Liquidebt Systems, Inc. (“LSI”), under which LSI would perform those collection services. Bregin was also instrumental in determining the standards under which LSI’s performance would be measured. The parties agreed that SIRVA would evaluate LSI’s performance on how quickly receivables were collected. LSI stood to gain or lose $150,000 depending on whether it was able to show a 10% increase compared to prior years.  LSI hired Bregin away from SIRVA to head up LSI’s delivery of services to NAVLI. Before Bregin left SIRVA, he authored a report that concluded that SIRVA’s accounts receivable were overstated because they included amounts that should be refunded to customers. LSI was not able to meet the agreed performance goal. Bregin believed that SIRVA’s accounting practices were to blame. He reported his concerns to LSI’s management. LSI’s president had Bregin’s complaints evaluated to determine their validity. He discovered that LSI was performing so poorly that it would be subject to the penalty even if SIRVA changed its accounting practices. Bregin was removed from the SIRVA account but initially kept on at LSI. He was eventually fired in December of 2003. Bregin brought suit under Indiana law against LSI and SIRVA, alleging that LSI fired him in retaliation for his reporting the SIRVA accounting practices and that SIRVA tortiously interfered with his employment. The district court granted summary judgment to LSI and SIRVA. Bregin appeals.

In their opinion, Judges Posner, Flaum, and Evans affirmed. The Court noted that the Indiana Supreme Court has recently affirmed its adherence to the employment-at-will doctrine. Under the employment-at-will doctrine, an employer and employee can each terminate an employment relationship for any (or no) reason. The Court observed that Indiana did recognize some narrow exceptions. Bregin relied on the McClanahan exception, based on a case in which the Indiana Supreme Court allowed a cause of action for a truck driver who was fired when he refused to haul an illegal load. The act would have subjected him to personal criminal liability. The Court concluded that Bregin’s claim did not fit the exception. Bregin did not identify any criminal act he was asked to perform. Bregin also asked the Court to recognize a new exception for “whistle-blowers.” The Court rejected his request, noting that an Indiana appellate court had rejected the exception in 1980 in a case in which a “vigorous dissent” raised the same argument for the exception.

With respect to Bregin’s allegation that SIRVA tortiously interfered with his employment, the Court was critical of Bregin’s vague articulation of his claim. The Court conceded that SIRVA complained to LSI about Bregin. It also noted, however, that LSI was not meeting its performance goals and was unresponsive to SIRVA’s requests for information. SIRVA’s complaints to LSI were therefore justified and did not support a claim of tortious interference. In addition, LSI’s president testified that he alone made the decisions to remove Bregin from the SIRVA account and to fire him. Bregin cannot make out a case of tortious interference.

• Email This
• Print
• Comments
• Trackbacks
• Share Link