Hillman v. Cty of Chgo
Filing
539
MEMORANDUM Opinion and Order. Entered by the Honorable Ruben Castillo on 3/31/2014.(gcy, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT P. HILLMANN,
Plaintiff,
v.
CITY OF CHICAGO,
Defendant.
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No. 04 C 6671
Chief Judge Rubén Castillo
MEMORANDUM OPINION AND ORDER
Plaintiff Robert P. Hillmann filed this action against his former employer, the City of
Chicago, alleging that his termination was illegal on various grounds. Plaintiff originally
brought five claims in this case, alleging breach of contract, discrimination in violation of the
Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., retaliation in violation
of the ADA, political hiring and firing decisions in violation of the First Amendment of the
United States Constitution, and retaliation and denial of medical benefits in violation of the
Illinois Workers’ Compensation Act (the “IWCA”), 820 Ill. Comp. Stat. 305/1 et seq. (R. 125,
Third Am. Compl.) On September 26, 2007, Judge Wayne R. Andersen granted Defendant’s
motion for summary judgment as to the breach of contract claim, the First Amendment claim,
and the denial of medical benefits portion of the IWCA claim. (R. 188, Mem. Op. and Order.)
Upon Judge Andersen’s retirement, this case was reassigned to Judge William J. Hibbler, (R.
247, Exec. Comm. Order), who presided over the seven-day jury trial on Plaintiff’s remaining
claims in June 2011, (R. 311, Min. Entry). Judge Hibbler unfortunately and prematurely passed
away before he issued findings of fact and conclusions of law or a ruling on the equitable ADA
retaliation claim, and the case was reassigned to this Court. (R. 338, Exec. Comm. Order.) This
Court granted Plaintiff’s motion for a new trial, (R. 362, Pl.’s Mot.; R. 376, Min. Entry), which
took place over seven days in April 2013, (R. 483, Min. Entry; R. 484, Min. Entry; R. 488, Min.
Entry; R. 489, Min. Entry; R. 492, Min. Entry; R. 493, Min. Entry; R. 501, Min. Entry). The
jury trial was simultaneously a bench trial on Plaintiff’s ADA retaliation claim, and the Court
used the jury in an advisory capacity as to that claim. (See R. 420, Min. Entry.) On April 17,
2013, the jury returned a verdict in favor of Defendant on Plaintiff’s ADA discrimination claim,
ADA failure to accommodate claim, and ADA retaliation claim. (R. 500, Verdict.) The jury
returned a verdict in favor of Plaintiff on his claim of retaliatory discharge under the Illinois
Workers’ Compensation Act and assessed damages of two million dollars. (Id.)
Presently before the Court are: (1) Plaintiff’s motion to vacate the advisory jury verdict as
to Plaintiff’s ADA retaliation claim (R. 503); (2) Defendant’s renewed motion for judgment as a
matter of law (R. 508); (3) Defendant’s motion to reinstate the original jury verdict or,
alternatively, for a new trial (R. 511); (4) Defendant’s motion for remitter or, alternatively, for an
evidentiary hearing as to damages (R. 515); and (5) Defendant’s motion for the Court to issue
findings of fact and conclusions of law in its favor on Plaintiff’s ADA retaliation claim (R. 521).
The Court begins by setting forth its findings of fact and conclusions of law as to Plaintiff’s
ADA retaliation claim. The basis of Plaintiff’s claim of retaliation in violation of the ADA is his
allegation that after each request for a reasonable accommodation for his disability, which he
made “in person or through legal counsel,” Defendant retaliated against him by denying merit
pay increases, transferring him or creating new job duties that further injured him, and ultimately
terminating him. (R. 125, Third Am. Compl. ¶ 68.)
Pursuant to Federal Rule of Civil Procedure 52, this Court hereby enters the following
written Findings of Fact and Conclusions of Law, which are based upon consideration of all the
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admissible evidence as well as this Court’s own assessment of the credibility of the trial
witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered Conclusions
of Law, they shall be deemed Conclusions of Law. Similarly, to the extent that matters
expressed as Conclusions of Law may be considered Findings of Fact, they shall also be deemed
Findings of Fact. The Court’s Conclusions of Law are limited to Plaintiff’s claim of retaliation
in violation of the ADA. For the sake of efficiency, however, the Court includes in its Findings
of Fact facts that are pertinent to the remaining post-trial motions, which are discussed below.
FINDINGS OF FACT
This Court concludes that Plaintiff established through both direct and circumstantial
evidence, as well as reasonable inferences drawn therefrom, the following facts by a
preponderance of the evidence:
I.
General Background
1.
Plaintiff began working for the Chicago Park District in June 1973 as a park
attendant. (Trial Tr. at 31:2-7.) He worked as a park attendant for approximately five and a half
years and then took a job as a truck driver with the Chicago Department of Streets and Sanitation
(“the Department”). (Trial Tr. at 31:10-14.)
2.
In or around November 1984, Plaintiff developed cervical radiculopathy. (Trial
Tr. at 32:5-8.) Cervical radiculopathy is the interference of normal nerve function that results
from pinched or compressed nerves. (Trial Tr. at 121:1-10.) This interference can cause pain,
weakness, limited mobility, and the loss of sensation in a person’s arm. (Trial Tr. at 121:5-14.)
Cervical radiculopathy is typically a permanent condition. (Trial Tr. at 121:15-21.) Plaintiff’s
condition caused pain and swelling in his neck and right arm. (Trial Tr. at 32:12-14.)
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3.
In 1995, Plaintiff sought an accommodation from the City to allow him to avoid
repetitive work with his right arm because of his condition. (Trial Tr. at 201:20-23.) As part of
the ensuing 1995 Agreement between Plaintiff and the City, Plaintiff was promoted to the role of
Chief Timekeeper and assigned to the Bureau of Electricity (the “BOE”), a division of the
Department of Streets and Sanitation. (Trial Tr. at 52:17-20, 224:19-24, 225:8-13, 226:16-21.)
4.
Dr. Michael F. Gonzales, Plaintiff’s treating physician, began treating Plaintiff for
cervical radiculopathy in the mid-1980s. (Trial Tr. at 120:12-15.) Dr. Gonzales specializes in
physical medicine and rehabilitation and pain medicine. (Trial Tr. at 117:18-118:2.) Between
the 1995 Agreement and the year 2000, Dr. Gonzales saw Plaintiff for unrelated reasons but did
not treat Plaintiff’s cervical radiculopathy because it was stable and did not need treatment
during that time period. (Trial Tr. at 124:1-7, 156:2.) In 2000, Dr. Gonzales observed “a
significant change in [Plaintiff’s] condition” that required further treatment. (Trial Tr. at 124:15125:5.) Specifically, Plaintiff’s right arm, shoulder, and hand were swelling and causing him
pain. (Trial Tr. at 124:24-125:2.) Dr. Gonzales observed Plaintiffs condition worsening between
2000 and when he stopped seeing Plaintiff in 2002 or 2003. (Trial Tr. at 155:23-156:4.)
II.
Transition of Duties in the BOE
5.
In his role as Chief Timekeeper of the BOE, Plaintiff reported to Deputy
Commissioner Jim Heffernan from 1995 until May 2000. (Trial Tr. at 226:16-21, 232:22-233:5.)
Plaintiff’s understanding of the 1995 Agreement was that he would not be performing all of the
duties of a Chief Timekeeper. (Trial Tr. at 227:19-22.) The Chief Timekeeper job description
listed, as examples of duties:
Directs, coordinates and reviews departmental timekeeping functions to ensure
accurate and proper reporting of information, directs and supervises a large group
of clerical personnel engaged in various timekeeping and payroll administration
activities; examines reports and records to verify the execution of proper
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timekeeping methods; assigns and supervises a group of Supervising Timekeepers
who check employees’ presence an [sic] the job; represents the department at
various meetings and conferences pertaining to the performance of various
timekeeping and payroll activities; reviews time verification reports and payroll
sheets for accuracy and to ensure proper processing; resolves complaints
pertaining to timekeeping or payroll methods or procedures; maintains records
and prepares various monthly progress and status reports.
(Def.’s Ex. 3.) Plaintiff performed some of the Chief Timekeeper duties, such as preparing
overtime reports, supervising a group of supervising timekeepers below him, and directing
clerical personnel. (Trial Tr. at 230:12-231:11, 236:11-15.) He also prepared memoranda to
Heffernan to inform him when employees were claiming excessive overtime pay. (Trial Tr. at
54:16-56:12.)
6.
Additionally, Plaintiff performed duties Heffernan directly assigned to him,
including conducting research, attending meetings, and writing reports associated with the
project to implement the City’s emergency telephone 911 system, timekeeping duties, and
independent research projects Heffernan assigned. (Trial Tr. at 231:20-232:9, 233:15-235:16.)
7.
In May of 2000, Heffernan was removed as the authority figure in the BOE and
Bart Vittori assumed responsibility for the administration of the BOE. (Trial Tr. at 58:4-7,
243:17-25.) On August 16, 2000, Brian Murphy succeeded Heffernan as the Deputy
Commissioner of the BOE. (Trial Tr. at 844:16-845:6.) In that position, Murphy supervised and
managed employees in the BOE, and he was supervised by John Sullivan. (Trial Tr. at 845:714.)
A.
Aggravation of Plaintiff’s injury
8.
Vittori assigned Plaintiff job duties that involved handwriting and data entry and
required repetitive use of his right arm. (Trial Tr. at 58:24-59:6, 244:15-17, 245:1-6.) Plaintiff
did not immediately inform Vittori that he had any work restrictions. (Trial Tr. at 249:3-8,
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250:2-4.) In late June of 2000, Plaintiff informed Heffernan and Hugh Donlan, the BOE’s
personnel liaison to the Department, that he was having problems performing the duties Vittori
assigned. (Trial Tr. at 61:23-62:12, 250:8-10.) Heffernan told Plaintiff that he had been relieved
of his authority and could not do anything to help him. (Trial Tr. at 61:23-25.) At that point,
Plaintiff believed that it was Donlan’s job to notify Vittori about his restrictions. (Trial Tr. at
250:25-251:1.) Nevertheless, Plaintiff performed the tasks Vittori assigned for over two months
without telling Vittori that he was having problems. (Trial Tr. at 250:11-17.)
9.
The swelling of Plaintiff’s hand and arm worsened over those two months
because of the additional data entry and writing tasks he was assigned, and on August 7, 2000,
his arm was so swollen that he could not even hold a pen, let alone perform his job duties. (Trial
Tr. at 262:20-263:11, 271:4-6.)
10.
On August 8, 2000, Plaintiff informed Vittori about his injury and told Vittori that
he could not continue to perform the tasks Vittori had assigned him. (Trial Tr. at 262:5-9.) In
response, Vittori told Plaintiff that Cliff Stevens, a supervising timekeeper in the BOE, was
being transferred, and Vittori assigned Plaintiff to take over his duties. (Trial Tr. at 262:10-12,
630:24-631:4.) At that time, there were three other supervising timekeepers in the BOE. (Trial
Tr. at 635:24-636:7.)
11.
After Plaintiff was asked to assume Stevens’s job duties, he told Donlan that he
would not be able to perform all of those duties due to medical restrictions. (Trial Tr. at 636:1420.) Plaintiff’s injury was obvious at that point, and Donlan testified that he “could physically
see that” Plaintiff had “an injury of some type.” (Trial Tr. at 636:21-24.)
12.
Stevens remained in the BOE until around August 18, 2000. (Trial Tr. at 267:25-
268:2.) Thus, beginning on August 8th, when Plaintiff told Vittori he could no longer perform
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his assigned duties, he reported to work but did not perform any work duties. (Trial Tr. at
268:12-269:1.)
13.
On August 15, 2000, Plaintiff’s counsel sent a letter to Barbara Smith in the
City’s Corporation Counsel’s office. (Pl.’s Ex. 49.) The letter informed Smith that Plaintiff had
been assigned additional duties that he was unable to perform and requested that the City
continue to accommodate Plaintiff’s medical restrictions pursuant to the 1995 Agreement. (Id.)
14.
The following day, Smith had a conversation with Catharine Hennessey about
Plaintiff’s 1995 Agreement. (Trial Tr. at 567:6-568:4; Pl.’s Ex. 76.) Beginning in 1998,
Hennessey worked for the Department as the labor relations liaison. (Trial Tr. at 520:7-15.) In
that role, she was responsible for, among other things, accommodating injured employees by
attempting to find them positions that they could perform with their medical restrictions. (Trial
Tr. at 522:16-523:16, 827:1-7.) Hennessey knew that Plaintiff needed to be accommodated and
specifically that he needed to avoid repetitive motions with his right hand. (Trial Tr. at 569:4-7;
Pl.’s Ex. 76.)
15.
Hennessey asked Donlan to write a job description for Plaintiff, which he did on
August 18th. (Trial Tr. at 638:9-16, 639:1-11; Pl.’s Ex. 106.) The first paragraph of the
memorandum described Plaintiff’s duties at the time as Chief Timekeeper. (Trial Tr. at 639:1218.) The second paragraph of the memorandum described new duties that Plaintiff would be
responsible for effective August 18, 2000, when he took over Stevens’s responsibilities. (Trial
Tr. at 639:19-22; Pl.’s Ex. 106.) The new duties assigned to Plaintiff essentially described the
job of a supervising timekeeper after the implementation of the Kronos timekeeping system.
(Trial Tr. at 266:11-20, 639:23-640:3, 645:25-646:7.) They included:
maintaining a 240-employee payroll; receiving and entering 30-35 edits per day in
the Kronos system; performing a mass edit in Kronos for 90 employees who work
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in the field; entering exceptions into the Kronos system; entering daily activity
onto time rolls; maintaining 300 Cards; and, maintaining the Employee File
Maintenance Module for said payroll.
(Def.’s Ex. 1.) Plaintiff testified that the first paragraph “pretty much” described what he had
been doing all along, but the second paragraph assigned him the job of a supervising timekeeper
in addition to his Chief Timekeeper tasks and consisted of tasks he could not physically perform.
(Trial Tr. at 264:19-267:1.)
B.
Medical evaluations and Plaintiff’s workers’ compensation claim
16.
On or about August 23, 2000, Plaintiff received an order, signed by Hennessey, to
report to Dr. Barry Lake Fischer for a fitness-for-duty evaluation. (Trial Tr. at 275:1-9; Pl.’s Ex.
77.) Dr. Fischer concentrated his practice on occupational medicine—primarily pre-employment
examinations and evaluation of work-related injuries. (Trial Tr. at 420:20-22.) When a patient
was referred to Dr. Fischer for a fitness-for-duty evaluation, he would first be interviewed by a
medical technician to get the relevant history, and then he would meet with Dr. Fischer to go
over that information. (Trial Tr. at 421:18-422:2.) Dr. Fischer would then “perform a focused
examination on a particular part of the body that was involved in this clinical situation.” (Trial
Tr. at 422:2-4.) To properly perform a fitness-for-duty evaluation, Dr. Fischer has to refer to a
job description provided by the employer to determine if the patient is physically qualified to
perform that job. (Trial Tr. at 422:5-17.) If Dr. Fischer found a condition that inhibited a
patient’s ability to perform his or her job, Dr. Fischer would recommend certain
accommodations. (Trial Tr. at 422:18-23.)
17.
Dr. Fischer diagnosed Plaintiff with probable degenerative disc disease “with
clinical evidence of right cervical radiculopathy.” (Pl.’s Ex. 42.) Dr. Fischer found that Plaintiff
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had some atrophy in his arm, which indicated that Plaintiff had had cervical radiculopathy for
some time. (Trial Tr. at 429:14-430:10; Pl.’s Ex. 42.)
18.
Dr. Fischer was supplied with a job description so he could determine whether
Plaintiff could or could not perform the job of Chief Timekeeper. (Trial Tr. at 426:18-25, 582:26.) Dr. Fischer determined that Plaintiff was qualified for his position as Chief Timekeeper with
restrictions: limited use of his right arm in data input and lifting. (Trial Tr. at 426:10-15; Pl.’s
Ex. 40.) Dr. Fischer faxed the results of the evaluation to Hennessey. (Trial Tr. at 425:20-22,
Pl.’s Ex. 40.) Dr. Fischer also wrote a letter to Russell Baggett in the City’s Personnel
Department outlining the results of his evaluation in detail. (Trial Tr. at 428:9-429:4; Pl.’s Ex.
42.) Finally, Dr. Fischer recommended that Plaintiff be treated by his personal physician and
that he receive an MRI of his cervical spine to determine whether or not he was a candidate for
corrective surgery. (Trial Tr. at 427:16-18, 430:11-18.)
19.
Dr. Fischer was shown the August 18th memorandum for the first time at trial.
(Trial Tr. at 432:19-21.) Dr. Fischer testified that the second paragraph, which described the
new duties, was not in the job description he was given to reference when he evaluated Plaintiff
for fitness for duty. (Trial Tr. at 432:22-25.) Dr. Fischer further testified that Plaintiff “would
have difficulty doing those things.” (Trial Tr. at 433:8.)
20.
Also on August 23, 2000, Plaintiff had an appointment with Dr. Gonzales. (Trial
Tr. at 280:23-15.) Dr. Gonzales wrote a note that Plaintiff had “a work related injury involving
his neck and right upper limb. He is to refrain from working until further notice due to his work
related injury.” (Pl.’s Ex. 41.) Plaintiff did not provide the note to anyone at the Department
because he feared being put on unpaid leave. (Trial Tr. at 289:8-16.)
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21.
City employees who are injured request a “blue card,” which allows the employee
to see a City doctor at Mercy Works. (Trial Tr. at 723:15-17.) Without a blue card, an employee
cannot go to Mercy Works. (Trial Tr. at 723:18-20.) City policy is that, without exception, a
supervisor should give an employee who reports an injury at work a blue card. (Trial Tr. at
724:9-15, 726:1-2.) However, blue cards were not to be given out unless the injury occurred on
duty or if the City “needed to find out from the City doctor if it was an injury on duty.” (Trial
Tr. at 725:19-22.)
22.
On August 24, 2000, Plaintiff went to Donlan’s office and requested a blue card.
(Trial Tr. at 287:9-11.) Donlan called Hennessey; after the call, Donlan told Plaintiff that he
could not give him a blue card. (Trial Tr. at 288:2-6.)
23.
On September 1, 2000, Plaintiff filed a workers’ compensation proceeding with
the Illinois Industrial Commission to try to get medical treatment for his injury. (Trial Tr. at
88:21-25.)
24.
On that same day, September 1, 2000, Plaintiff was transferred within the BOE to
the Construction Division. (Trial Tr. at 89:1-8, 272:13-18.) He was assigned to answer phones.
(Trial Tr. at 290:12-15.) Plaintiff had to use his left hand to answer phones. (Trial Tr. at 290:1819.)
25.
The Committee on Finance is a group comprised of City employees that oversees
workers’ compensation claims. (Trial Tr. at 442:2-9.) Dr. Gonzales was in the practice of
sending bills to the Committee on Finance when he treated City employees who reported workrelated injuries, such as Plaintiff. (Trial Tr. at 125:6-17.) Dr. Gonzales testified that normally,
the Committee on Finance would mail him correspondence “either accepting responsibility for
the injury and paying it, or denying responsibility for the injury.” (Trial Tr. at 126:6-16.) He
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further testified that he sent Plaintiff’s bills to the Committee on Finance and advised the
Committee that Plaintiff’s condition was work-related. (Trial Tr. at 127:3-8.)
26.
On September 7, 2000, Dr. Gonzales sent a letter to the Committee on Finance
stating that Plaintiff was “under [Dr. Gonzales’s] care for treatment of injury sustained at work.
The injury is a repetitive strain injury of the right upper limb.” (Pl.’s Ex. 39; Trial Tr. at 129:5130:11.) Dr. Gonzales’s letter went on to explain what appropriate treatment of the condition
would include and stated that it was “important that [Plaintiff’s] treatment not be delayed.
Significant delay in treatment will increase the likelihood that his condition will become
refractory to treatment.” (Pl.’s Ex. 39.) Dr. Gonzales never received a response from the
Committee on Finance. (Trial Tr. at 138:18-23.)
27.
On or around September 11, 2000, Donlan forwarded to Hennessey the note from
Dr. Gonzales indicating that Plaintiff had a work injury and needed medical treatment. (Trial Tr.
at 641:15-642:11.)
28.
On or around October 7, 2000, Plaintiff was transferred within the BOE to the
Transportation Division to answer phones. (Trial Tr. at 91:8-9, 92:4-9.) He answered phones in
the Transportation Division until December 21, 2000. (Trial Tr. at 92:23-93:2, 290:20-22.)
During that time, his workers’ compensation claim was pending and he was unable to get
medical treatment for his injury. (Trial Tr. at 93:3-8.)
29.
On December 18, 2000, Dr. Gonzales wrote another letter stating: “[Plaintiff] is
impaired by injury sustained at work. This injury affects his neck and right upper limb. I am
requesting that he refrain from working until further notice due to his work related injury.” (Pl.’s
Ex. 43; Trial Tr. at 131:18-132:5.) Dr. Gonzales testified that Plaintiff’s condition “was clearly
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worse, and he was getting worse as a result of the things that he was being asked to do at work.”
(Trial Tr. at 132:15-19.)
30.
Dr. Gonzales never received a letter from the Committee on Finance “either
accepting responsibility or denying responsibility or communicating in any other way regarding
[Plaintiff].” (Trial Tr. at 127:9-14.) Dr. Gonzales testified that if he had received a letter from
the Committee on Finance denying liability, he could have submitted Plaintiff’s bills to his
health insurance company so Plaintiff could get the medical care he needed. (Trial Tr. at 174:19175:7.) However, Dr. Gonzales’s contract with Plaintiffs insurance provider barred him from
filing claims for injuries that were work-related unless his employer denied liability. (Trial Tr. at
173:23-174:18.)
31.
On December 21, 2000, Donlan hand-delivered to Plaintiff a letter signed by
Hennessey. (Trial Tr. at 294:6-16; Def.’s Ex. 2.) The letter states that the Department received
letters from Dr. Gonzales dated August 23, 2000, and December 18, 2000, advising that Plaintiff
was to refrain from working until further notice. (Def.’s Ex. 2.) The letter went on to state, in
relevant part:
Furthermore, in various conversations, you have stated that you are unable to
perform the duties required of your job title as Chief Timekeeper.
However, as you are aware, the duties and responsibilities of a Chief Timekeeper
have changed in recent years. I have attached a current copy of your job
description. With the present conditions in mind, we must inform you that the
most viable option for you is to apply for a Leave of Absence, and to return to
work when your physical condition allows you to perform the duties of your job
title.
You may also request a Work Evaluation from the Department of Personnel to
determine if your physical restrictions will allow you to perform in some other
capacity in another job title.
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(Def.’s Ex. 2.) Plaintiff testified that when Donlan handed him the letter, Donlan told him not to
report back to work. (Trial Tr. at 297:22-23.)
32.
Plaintiff did not apply for a leave of absence because he had already filed a
workers’ compensation claim with the Illinois Industrial Commission. (Trial Tr. at 299:3-10; see
Pl.’s Ex. 115.) Upon receiving the letter, however, Plaintiff stopped going to work. (Trial Tr. at
301:12-16.)
III.
Plaintiff’s Medical Evaluations
33.
On January 24, 2001, Plaintiff received a letter dated January 23, 2001, from
Robert J. Serafin, the Director of Workers’ Compensation in the City’s Committee on Finance.
(Trial Tr. at 102:4-12; Pl.’s Ex. 15.) The letter informed Plaintiff that an MRI scan of his
cervical spine and an EMG test of his upper extremities had been scheduled for him at Mercy
Hospital on January 26, 2001. (Pl.’s Ex. 15.) The referral form for the MRI indicated that
Plaintiff was referred by Dr. Damon Arnold. (Id.)
34.
Dr. Arnold was the director of the occupational health network at Mercy Works.
(Trial Tr. at 440:18-24.) In that role, he oversaw the operations, supervised other physicians, and
treated patients. (Trial Tr. at 441:14-19.) He also acted as the liaison to the Committee on
Finance and consulted on workers’ compensation claims. (Trial Tr. at 442:2-9.) Mercy Works
treated patients that were injured at work and performed routine physicals and drug screens.
(Trial Tr. at 441:3-7.) The City was a major client of Mercy Works. (Trial Tr. at 441:8-13.)
35.
Plaintiff had never seen Dr. Arnold when he received the referral. (Trial Tr. at
103:5-12.)
36.
Between January 24th and January 26th, Plaintiff received another letter from the
office of Serafin, which was dated January 24, 2001. (Trial Tr. at 102:9-21, Pl.’s Ex. 16.) This
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letter advised Plaintiff that the Committee on Finance denied liability for medical care payments
because it found his injury to be unrelated to his employment. (Trial Tr. at 748:25-749:3; Pl.’s
Ex. 16.) Serafin testified that, to the best of his knowledge, the claim was denied because there
was no accident report on file. (Trial Tr. at 795:3-7.)
37.
When an employee is injured, he should request his supervisor to fill out an
accident report, or a First Report of Injury. (Trial Tr. at 786:24-787:6.) When a supervisor
learns of an injury on the job, he is supposed to fill out a First Report of Injury. (Trial Tr. at
729:15-24.) It is then the supervisor’s responsibility to send the First Report of Injury to the
Committee on Finance. (Trial Tr. at 788:19-22.) Upon receipt of the Report, the Committee on
Finance starts a file. (Trial Tr. at 789:1-6.) An employee’s workers’ compensation file is
maintained by the Workers’ Compensation Division of the Committee on Finance. (Trial Tr. at
784:19-21.)
38.
Alternatively, an employee can “file an adjustment of claim” with the Illinois
Industrial Commission, and the Committee on Finance starts a file upon notification of that
report. (Trial Tr. at 789:7-16.) Without the accident report, however, the Committee on Finance
cannot process the claim and pay disability because it does not have the details of the injury,
such as the date, time, description, and supervisor sign-off. (Trial Tr. at 789:17-790:3.) Thus,
even if the Committee on Finance receives a Mercy Works discharge sheet indicating that an
employee has a work-related injury, the Committee does not pay disability benefits until it
receives a completed accident report. (Trial Tr. at 7-15.)
39.
If the Committee on Finance does not receive a First Report of Injury for an
individual, there is a form to be filled out to provide information about the injury and indicate
that no First Report of Injury was filed. (Trial Tr. at 757:20-25.) When Serafin filled out that
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form with regards to Plaintiff, he marked Plaintiff as disabled and noted that his neck and right
arm were injured. (Trial Tr. at 758:1-759:1.)
40.
Serafin testified that denial letters like the one Plaintiff received were not final
determinations, but could be reviewed later, as evidenced by the fact that Plaintiff was eventually
paid temporary total disability. (Trial Tr. at 795:25-796:8.)
41.
On January 26th, Plaintiff reported for his MRI scan with his referral from Dr.
Arnold. (Trial Tr. at 104:6-11.) When it was discovered that Plaintiff had never seen Dr. Arnold
and was ordered to get the scan by Serafin, Plaintiff was told that Serafin was not a doctor and he
needed to see Dr. Arnold before the MRI scan could be performed. (Trial Tr. at 104:15-21,
105:1-5.) Plaintiff then made an appointment to see Dr. Arnold at Mercy Works on or around
January 29th. (Trial Tr. at 104:22-25.)
42.
Dr. Arnold examined Plaintiff for the first time on January 29, 2001. (Trial Tr. at
444:9-17.) Based on the examination and Plaintiff’s medical history, Dr. Arnold concluded that
Plaintiff had a work-related condition: radiculopathy of the upper extremity. (Trial Tr. at
444:15-445:4; Pl.’s Ex. 18.) Dr. Arnold ordered an MRI scan of Plaintiff’s cervical spine for the
following day, January 30th, and requested Plaintiff to return for a reevaluation on February 5th.
(Pl.’s Ex. 18.) Dr. Arnold testified that the reason he ordered the diagnostic studies, the MRI
scan and the electromyelogram, was to determine whether serious surgical intervention was
required. (Trial Tr. at 466:1-12.)
43.
The MRI scan revealed various osteophytes and a herniated disc, and it indicated
multilevel disc disease. (Pl.’s Ex. 17.) Dr. Arnold testified that the results of the MRI scan
supported his conclusions as to Plaintiff’s cervical radiculopathy. (Trial Tr. at 447:9-11.) The
significance of the MRI results was the indication “that there was something anatomical”—
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specifically, degeneration and disk herniation. (Trial Tr. at 466:20-24.) Additionally, the
electromyelogram revealed a delay in the nerve transmission between Plaintiff’s shoulder and
neck. (Trial Tr. at 466:24-467:11.) Dr. Arnold testified that the delay “could explain the feeling
of radiculopathy, of having pain in the extremity.” (Trial Tr. at 467:11-12.) Accordingly, Dr.
Arnold referred Plaintiff to a neurosurgeon to determine the best course of treatment. (Trial Tr.
at 471:4-14; Pl.’s Ex. 22; Pl.’s Ex. 23.)
44.
On February 5th, Dr. Arnold noted that Plaintiff was still off duty due to a work-
related condition and requested Plaintiff to return for a reevaluation on February 12, 2001. (Trial
Tr. at 449:1-8; Pl.’s Ex. 19.)
45.
On February 12th, Dr. Arnold noted that Plaintiff was still off duty due to a work-
related condition and requested that Plaintiff follow up with his treating physician, Dr. Gonzales.
(Trial Tr. at 451:20-24; Pl.’s Ex. 20.)
46.
Finally, on a February 26th work status discharge sheet, Dr. Arnold discharged
Plaintiff from his care. (Pl.’s Ex. 21.) Dr. Arnold was under the impression that Plaintiff would
be working in an office setting. (Trial Tr. at 453:19-21.) Dr. Arnold indicated that Plaintiff
could now perform sedentary work with limited use of his right upper extremity. (Trial Tr. at
452:19-453:2, 454:5-16; Pl.’s Ex. 21.) Dr. Arnold clarified that he meant that Plaintiff could
work “a desk job,” “sitting down and . . . doing things like minor office work.” (Trial Tr. at
454:24-455:3.)
47.
On subsequent work status discharge sheets from June 20, 2001, (Pl.’s Ex. 22),
and July 9, 2001, (Pl.’s Ex. 23), Dr. Arnold similarly recommended that Plaintiff could perform
“sedentary work as previously” with limited use of his right arm. Dr. Arnold testified that all the
forms he filled out were sent to the Workers’ Compensation division of the Committee on
16
Finance so the Committee could determine whether the visit “should be processed as a workers’
compensation claim or denied.” (Trial Tr. at 457:18-458:11.)
48.
In 2001, Jack Drumgould was the assistant commissioner in charge of personnel
in the Department. (Trial Tr. at 821:21-822:8.) Drumgould received Mercy Works work status
discharge sheets for all six bureaus within the Department. (Trial Tr. at 823:14-23.) Drumgould
testified that the standard procedure he followed when he received a discharge sheet was to
contact a deputy or personnel liaison to meet with the duty-disabled employee to determine
whether there existed a position within their bureau that could accommodate the employee.
(Trial Tr. at 823:14-23.) Drumgould testified that after a bureau accepted an employee with his
restrictions, Drumgould would send a copy of the Mercy Works discharge sheet to the
Committee on Finance so it would remove the individual from duty disability or workers’
compensation. (Trial Tr. at 824:23-825:1.) He would then send a copy to his staff so they could
complete the paperwork necessary to restore the individual to the Department’s payroll. (Trial
Tr. at 825:1-4.)
49.
Drumgould received Dr. Arnold’s February 26, 2001 discharge sheet indicating
that Plaintiff could perform sedentary work with certain restrictions. (Trial Tr. at 822:14-823:6.)
Drumgould wrote on the sheet, “Cannot accommodate with restrictions” and signed and dated it
on February 26, 2001. (Trial Tr. at 823:2-9; Pl.’s Ex. 89.) Drumgould stated that at that time,
“there was no bureau or no position that could accommodate” Plaintiff’s restrictions. (Trial Tr.
at 823:12-13.) Drumgould also wrote on Plaintiff’s discharge sheet, “CAN accommodate in
Bureau of Traffic Services with restrictions as of 3-02-01.” (Trial Tr. at 824:5-9; Pl.’s Ex. 89.)
17
IV.
Plaintiff’s Detail to the Bureau of Traffic Services
50.
Plaintiff returned to work and was “detailed” to the Bureau of Traffic Services
(“Traffic Services”); a detail is a temporary assignment and means that Plaintiff was still being
paid from the BOE’s budget and still held the title of Chief Timekeeper, but was being utilized
by a different bureau in the Department. (Trial Tr. at 886:22-887:5.) The expectation was that
once Plaintiff was again able to perform the Chief Timekeeper duties, he would return to the
BOE assuming that the function was still needed. (Trial Tr. at 887:6-10.)
51.
It was not uncommon for employees in the City, and particularly in the
Department, to perform duties outside the scope of their job title. (Trial Tr. at 896:15-19.) They
held one official job title and were paid as though they were in that position, but they performed
the tasks of a different title. (Trial Tr. at 410:15-21.) John Sullivan, the Managing Deputy
Commissioner at the Department who oversaw all of the bureaus in the Department and
supervised each bureau’s deputy commissioner, (Trial Tr. at 697:4-15), testified that the
Department of Personnel would need to be involved in order to change an official job
description. (Trial Tr. at 703:8-11.) He testified, however, that the official job descriptions were
“very old and outdated” and that “probably 50 percent of the people in the City work out of their
job descriptions.” (Trial Tr. at 702:20-23.)
A.
Plaintiff’s assignment to Traffic Services
52.
Hennessey’s predecessor as the labor relations liaison for the Department was
William Bresnahan. (Trial Tr. at 521:21-23.) In 1998, Bresnahan became Deputy
Commissioner of the Bureau of Traffic Services. (Trial Tr. at 975:24-976:14.)
53.
In 2001, Bresnahan faced an issue in his duty as Deputy Commissioner of Traffic
Services. (Trial Tr. at 977:11.) The City had hired an outside security company for the
18
automobile pound because some City employees had been assaulted and battered by individuals
who came to pick up their cars. (Trial Tr. at 1020:16-22.) At the end of some of the security
detail’s shifts, there was “a discrepancy in the number of the cars that were supposed to be in the
auto pound and the number of inventories” that were actually present. (Trial Tr. at 977:11-17.)
Bresnahan believed “the security guards were letting cars go.” (Trial Tr. at 977:18-19.) To
combat the suspected theft, Bresnahan assigned several people to double check the receipts to
ensure that the proper car was released to the proper individual. (Trial Tr. at 977:20-23.) He
requested from the Department commissioner’s office an employee that could be permanently
assigned to that task. (Trial Tr. at 977:24-978:2.)
54.
Bresnahan testified that someone from the commissioner’s office—potentially
Drumgould—called him to inform him that an employee who had some restrictions would be
able to perform the function he requested. (Trial Tr. at 979:6-13.) Drumgould testified that he
was not involved in the decision to assign Plaintiff to the auto pound and he did not discuss the
decision with Bresnahan. (Trial Tr. at 825:21-826:9.) Sullivan testified that he was not involved
in the decision to transfer Plaintiff to Traffic Services, but rather that Hennessey informed him
that Plaintiff’s transfer was “a deal she had worked out between the deputy commissioners in
those two bureaus.” (Trial Tr. at 701:6-17.) Murphy testified that he approved the transfer of
Plaintiff to Traffic Services, but he did not make that decision. (Trial Tr. at 846:3-8.)
Regardless of who made the decision to detail Plaintiff to Traffic Services, once he was there,
Bresnahan made the decision to assign Plaintiff to the auto pound. (Trial Tr. at 1014:3-7.)
55.
Bresnahan was aware of and actually signed the agreement that made
accommodations for Plaintiff’s medical restrictions in his Chief Timekeeper role. (Trial Tr. at
1010:8-23.) Bresnahan knew about Plaintiff’s work restrictions when Plaintiff was assigned to
19
Traffic Services. (Trial Tr. at 979:14-980:1.) Specifically, Bresnahan received from Drumgould
the Mercy Works discharge sheet from February 26th indicating that Plaintiff required sedentary
work and limited use of his right arm, and on which Drumgould had written that Traffic Services
could accommodate Plaintiff with restrictions as of March 2nd. (Trial Tr. at 980:16-19; Pl.’s Ex.
89.) Bresnahan considered the restrictions when he determined that Plaintiff would be assigned
to double check the receipts. (Trial Tr. at 981:3-15.)
56.
On March 1, 2001, Plaintiff received a phone call requesting him to report to
Room 701, the administrative offices of the Department, the following day. (Trial Tr. at 303:114.) Plaintiff reported to Room 701 on March 2nd and Jack Drumgould assigned him to Traffic
Services. (Trial Tr. at 303:1-19.) Plaintiff then went to the administrative office of Traffic
Services and told them who he was. (Trial Tr. at 304:11-14.)
57.
Bresnahan did not meet Plaintiff when he began working at Traffic Services, but
he testified that the Chief Auto Pound Supervisor, John Rachmaciej, along with the supervisors
of the auto pound, Joe Madison and Joe Perone, did meet Plaintiff. (Trial Tr. at 982:25-983:12.)
Bresnahan instructed Rachmaciej to inform Plaintiff of his duties, and Bresnahan testified that
Rachmaciej did. (Trial Tr. at 983:13-18.) Plaintiff recalled seeing Rachmaciej at Traffic
Services on March 2nd, but he did not recall whether he talked to Rachmaciej that day. (Trial
Tr. at 304:22-25.) He testified that he did not discuss his duties with anyone at the Traffic
Services office. (Trial Tr. at 305:3-11.)
58.
Plaintiff testified that someone in a City uniform told him he was being assigned
to the central auto pound, on lower Wacker Drive, and then led him there, the man in a City
vehicle and Plaintiff in his car. (Trial Tr. at 305:16-306:7.) The man then led Plaintiff to a gate
and told him that he would be stationed there. (Trial Tr. at 305:20-23.) The man pulled the gate
20
open, closed it, told Plaintiff “it’s all greased up for you,” and walked away. (Trial Tr. at
306:15-25.) Plaintiff understood this to mean that his job duty was to open and close the gate.
(Trial Tr. at 306:12-307:4, 311:16-25.) Plaintiff also monitored the security guard to make sure
he was not stealing cars. (Trial Tr. at 334:23-335:6.) The man did not identify himself or tell
Plaintiff who his supervisors were, and Plaintiff did not ask. (Trial Tr. at 306:6-11.) Plaintiff did
not ask anyone for clarification or tell anyone about his work restrictions. (Trial Tr. at 307:3-8.)
59.
Because of his injury, Plaintiff opened the gate with his left arm. (Trial Tr. at
310:21-25.) Plaintiff testified that he performed this duty for two weeks before his left arm
“started going downhill,” and he “had to just slowly stop doing it.” (Trial Tr. at 334:17-19.)
60.
During the time he was opening and closing the gate, Plaintiff frequently used
sick leave because his pain upon waking required him to take strong prescription painkillers,
which precluded him from driving to work for “an hour or two” until some of the effect wore off.
(Trial Tr. at 215:13-216:4.) Accordingly, Plaintiff requested that his 7:00 a.m. to 3:00 p.m. shift
be changed to the later shift from noon to 8:00 p.m. (Trial Tr. at 342:18-22.) On March 25,
2002, Plaintiff received a memorandum from Denise Lanton, the Acting Director of
Administration, regarding his use of sick time. (Def.’s Ex. 13; Trial Tr. at 339:13-18.) The
memorandum stated that Plaintiff had been “consistently tardy” and had requested to apply his
sick time to the time period he was tardy. (Def.’s Ex. 13.) The memorandum stated that “Auto
Pound Supervisor Jorge Vargas requested that [Plaintiff] provide him with medical
documentation of [Plaintiff’s] illness on the dates [Plaintiff was] tardy in order to consider
whether [Plaintiff’s] tardiness qualifie[d] for sick leave,” but that Plaintiff had failed to do so and
his attendance record reflected “a pattern of unexcused excessive tardiness.” (Def.’s Ex. 13.)
21
After Plaintiff received the March 25th memorandum, his shift change request was approved and
he worked the noon-to-8:00 shift until he was laid off in July 2002. (Trial Tr. at 343:3-10.)
61.
Plaintiff had no supervisor, and the supervisors at the pound expressly told him
that they were not his supervisors. (Trial Tr. at 307:7-23.) Bresnahan testified that when
Plaintiff came to work at the auto pound in March, he had no job description; instead, his duties
were verbally assigned to him, supposedly by Rachmaciej, when he began working in the
position. (Trial Tr. at 1012:9-1013:2.)
B.
Plaintiff’s performance evaluations and pay raise denials
62.
When an employee was entitled to a 5% pay raise that came with a step increase,
his supervisor rated his performance on a salary advancement form. (Trial Tr. at 830:24831:19.) Employees were rated as “excellent,” “good,” “fair,” or “poor.” (Trial Tr. at 831:9-11.)
If an employee was rated “excellent” or “good,” he received the pay increase; if he was rated
“fair” or “poor,” the increase was denied. (Trial Tr. at 831:11-14.) If employees were denied the
merit pay increase, a written explanation of the reason for the denial was required. (Trial Tr. at
831:15-19.) Those forms were placed in the employee’s personnel file in the Department’s
personnel division. (Trial Tr. at 831:20-832:1.)
63.
As Deputy Commissioner of the BOE, Murphy did not supervise Plaintiff once he
was transferred to Traffic Services, nor did he check up on Plaintiff with Bresnahan while
Plaintiff was working at Traffic Services. (Trial Tr. at 861: 13-19.) Nevertheless, in September
2001, when Plaintiff was detailed to Traffic Services, Drumgould sent Murphy a memorandum
requesting Murphy’s input on Plaintiff’s salary advancement—whether or not Plaintiff should
receive a merit pay increase. (Trial Tr. at 861:20-862:11.) Murphy recommended that Plaintiff’s
merit pay increase be denied. (Trial Tr. at 862:19-24.)
22
64.
On the review form, which Murphy signed on October 1, 2001, he checked the
box for “unsatisfactory” rating, indicating that Plaintiff’s performance was “so unacceptable that
administrative action must be taken.” (Trial Tr. at 863:17-864:21.) Murphy stated that the form
was asking whether Plaintiff should receive a pay increase “based upon great work in his title of
Chief Timekeeper; and he was performing no work in the title of Chief Timekeeper, so I couldn’t
give him a merit raise. I just didn’t feel that was right.” (Trial Tr. at 864:24-865:3.) Murphy
testified that when he evaluated his employees, he based it upon their current ability to perform
their job duties, and Plaintiff was not performing the Chief Timekeeper job duties. (Trial Tr. at
866:16-22.) Murphy stated: “[Plaintiff] had said that he couldn’t do those functions, so I don’t
know whether he had the ability or not; but I know he wasn’t performing those functions.” (Trial
Tr. at 867:25-868:2.) Murphy testified that he thought “it would be unacceptable to give him
more money for a job that he was not performing.” (Trial Tr. at 868:24-869:1.)
65.
Murphy testified that the “administrative action” the form refers to usually meant
increased training or counseling to figure out why an employee was not performing at a “good”
or “excellent” level and help him increase his proficiency. (Trial Tr. at 869:12-24.) Murphy did
not talk to Plaintiff about his job performance or attempt to determine whether he needed
additional training to do his job as Chief Timekeeper because Plaintiff was no longer working for
the BOE. (Trial Tr. at 869:25-870:4.)
66.
When a deputy commissioner gives an employee an “unsatisfactory” rating, he is
asked to explain the reason. (Trial Tr. at 870:15-18.) Murphy wrote a memorandum explaining
that since his appointment to the BOE in August 2000, Plaintiff had been of no value. (Trial Tr.
at 872:11-19.) Murphy also stated: “[Plaintiff] cannot perform the functions of his title and has
complained when given any other menial task to complete,” which he clarified meant answering
23
the phones. (Trial Tr. at 875:23-876:6.) Murphy then stated that Plaintiff had been detailed to
another bureau to try to accommodate him and that the BOE had not needed to replace him.
(Trial Tr. at 876:7-14.) Murphy sent his memorandum to Al Sanchez, the Commissioner of the
Department; Sullivan, the Managing Deputy Commissioner of the Department; Jack Kenney, the
Deputy Commissioner of Administrative Services; and Hennessey, the Department’s legal
counsel. (Trial Tr. at 870:15-871:6.) He sent the rating only to Drumgould. (Trial Tr. at
871:15-21.) Murphy did not send the rating to Plaintiff because Plaintiff was no longer working
for Murphy, nor did he send it to Bresnahan, Plaintiff’s current supervisor. (Trial Tr. at 871:1910.)
67.
On December 20, 2001, Drumgould sent Bresnahan a memorandum informing
him that Plaintiff was eligible for a merit pay increase on January 1, 2002, and requesting a
rating of Plaintiff’s performance as to whether Plaintiff deserved the increase. (Trial Tr. at
992:1-6; Def.’s Ex. 9.)
68.
Bresnahan did not personally supervise Plaintiff’s work. (Trial Tr. at 987:14-16.)
As the Deputy Commissioner, however, Bresnahan made the final decision as to whether to
award merit pay increases to employees in Traffic Services. (Trial Tr. at 989:9-13.) He based
those decisions on recommendations by employees’ supervisors, who had day-to-day contact
with the employees. (Trial Tr. at 989:14-15, 994:1-9.)
69.
On December 26, 2001, Rachmaciej, the Chief Auto Pound Supervisor, sent
Bresnahan a memorandum about Plaintiff’s salary advancement. (Trial Tr. at 990:25-991:7;
Def.’s Ex. 8.) The memorandum recommended a rating of “marginal” for Plaintiff’s
performance of his duties and stated that he performed his duties “below an acceptable level do
[sic] to excessive absenteeism.” (Trial Tr. at 990:4-7; Def.’s Ex. 8.) The memorandum
24
concluded by recommending that Plaintiff’s “salary advancement increase should be denied until
his work attendance improves.” (Def.’s Ex. 8.)
70.
On December 28, 2001, Bresnahan returned Drumgould’s December 20th
memorandum indicating a “marginal” rating for Plaintiff, which resulted in the denial of
Plaintiff’s merit pay increase. (Trial Tr. at 993:16-25; Def.’s Ex. 9.) Bresnahan testified that he
assumed the evaluation was intended to cover the time period from March 2001, when Plaintiff
started working at Traffic Services, until the current date. (Trial Tr. at 993:8-15.) Bresnahan
relied on Rachmaciej’s December 26th memorandum when evaluating Plaintiff. (Trial Tr. at
994:11-14.)
71.
When an individual was denied a merit pay increase, he was given another
opportunity, approximately two months later, to receive the increase if he had improved upon the
deficiency that prevented him from receiving it in the first place. (Trial Tr. at 995:16-996:1.)
72.
On February 22, 2002, Bresnahan received another memorandum from
Drumgould informing him that Plaintiff was eligible for a merit pay increase and requesting his
rating. (Trial Tr. at 1006:14-22; Def.’s Ex. 10.)
73.
Annette Phillips was an assistant general superintendent in Traffic Services.
(Trial Tr. at 996:2-4.) Her responsibilities involved overseeing the administrative functions of
the auto pound. (Trial Tr. at 997:11-16.) On February 25, 2002, she sent Bresnahan a
memorandum about Plaintiff’s salary advancement. (Trial Tr. at 1005:17-20; Def.’s Ex. 11.) It
stated: “At this time a merit increase is not acceptable for [Plaintiff]. [Plaintiff] is assigned to the
exit gate at Central Auto Pound for (4) four hours a day. [Plaintiff] has an attendance problem
which needs improving.” (Def.’s Ex. 11.)
25
74.
On February 23, 2002, Bresnahan returned Drumgould’s February 22nd
memorandum, again indicating a “marginal” rating for Plaintiff. (Trial Tr. at 1007:9-14; Def.’s
Ex. 10.) Bresnahan testified that he relied on Phillips’s February 25th memorandum when
evaluating Plaintiff. (Trial Tr. at 1006:23-25.)
75.
On May 3, 2002, Bresnahan received another memorandum from Drumgould
informing him that Plaintiff was eligible for a merit pay increase and requesting his rating. (Trial
Tr. at 998:14-22; Def.’s Ex. 14.)
76.
On May 6, 2002, Phillips sent Bresnahan a memorandum about Plaintiff’s salary
advancement. (Trial Tr. at 996:7-11; Def.’s Ex. 15.) It stated: “[Plaintiff] still has not improved
on his attendance, which is four (4) hours a day watching the gate at Central Auto pound . [sic]
Based on these factor [sic] it is my recommendation that [Plaintiff] should not be given a
increase [sic] in salary at this time..[sic]” (Def.’s Ex. 15.) From her memorandum, Bresnahan
understood that Phillips was recommending that Plaintiff be denied a raise because of his
attendance. (Trial Tr. at 996:25-997:5.)
77.
On May 6, 2002, Bresnahan returned the memorandum to Drumgould indicating a
rating of “unsatisfactory,” the lowest possible rating, for Plaintiff. (Trial Tr. at 999:3-11; Def.’s
Ex. 14.) The reason Bresnahan gave Plaintiff an “unsatisfactory” ranking was because Plaintiff
was given an opportunity to improve on his attendance issue and failed to do so. (Trial Tr. at
999:9-18.) Bresnahan relied on Phillips’s memorandum to rate Plaintiff’s performance. (Trial
Tr. at 999:19-22.)
78.
None of these merit pay increase denials or negative performance evaluations
were sent to Plaintiff. (Trial Tr. at 1025:6-8.) Plaintiff was assigned to Traffic Services from
March 2, 2001, until July 2002, when his position was eliminated in the Reduction in Force, and
26
he did not receive any written performance evaluations during that time. (Trial Tr. at 987:6-13,
988:2-5.)
79.
Bresnahan never had any discussions with Plaintiff about his attendance
problems. (Trial Tr. at 1003:1-3.) Bresnahan did not know how frequently Plaintiff was absent,
just that it was “enough to bring it to the attention of his supervisors.” (Trial Tr. at 1024:18-25.)
Plaintiff never approached Bresnahan to complain about any issues he was having at Traffic
Services. (Trial Tr. at 1003:4-7.)
C.
Defendant’s denial of treatment and of liability for Plaintiff’s injury
80.
On February 15, 2001, Mark Schechter from the City’s Law Department wrote a
memorandum to Serafin regarding Plaintiff’s workers’ compensation claim (the “Schechter
Memo”). (Trial Tr. at 765:13-23; Pl.’s Ex. 55.) It went into the Committee on Finance’s
workers’ compensation file for Plaintiff. (Trial Tr. at 766:2-4.) The top of the Schechter Memo
has handwriting next to the header. (Pl.’s Ex. 55; Trial Tr. at 767:25-768:2.) The handwriting
appears to say “Phony.” (Pl.’s Ex. 55.) Serafin testified that he did not write “phony” on the
Memo and he did not know who did. (Trial Tr. at 768:12-23.) Murphy testified that he did not
write “phony” on the Schechter Memo. (Trial Tr. at 850:6-8.) No viable explanation was
offered by the Defendant as to how the word “phony” was written on Plaintiff’s Exhibit 55. The
Court concludes that Plaintiff’s Exhibit 55 strongly supports the jury’s actual and advisory
verdicts in this case.
81.
The Schechter Memo attached Plaintiff’s medical records and stated: “Dr. Arnold
indicated that [Plaintiff] is off duty due to a work-related condition.” (Pl.’s Ex. 55.) The Memo
further stated that Plaintiff’s “attorney stated that [Plaintiff’s] job duties recently changed,
requiring repetitive use of his right hand, causing pain and swelling.” (Pl.’s Ex. 55.) The
27
Schechter Memo also instructed Serafin to have Dr. Arnold reevaluate Plaintiff to see if he could
perform phone answering duties with his left hand and consider whether the nerve block
injections that Dr. Gonzales recommended on September 7, 2000, were appropriate. (Pl.’s Ex.
55; Trial Tr. at 774:25-775:9.) Finally, the Schechter Memo recommends that Plaintiff be placed
on temporary disability from February 5th until Dr. Arnold released him to return to work. (Pl.’s
Ex. 55; Trial Tr. at 776:4-12.)
82.
The Schechter Memo was faxed to the BOE on March 2, 2001. (Trial Tr. at
777:17-779:9, 857:3-7; Pl.’s Ex. 56.) Serafin testified that he did not fax the Schechter Memo to
the BOE and he did not know who did. (Trial Tr. at 779:11-15.)
83.
On March 9, 2001, Drumgould sent a memorandum to Serafin stating that “as of
Friday, March 2, 2001, [Plaintiff] has been accommodated within his restrictions and returned to
work. [Plaintiff] has been assigned to the Bureau of Traffic Services.” (Pl.’s Ex. 84.) Thus,
Plaintiff was detailed to Traffic Services the same day the Schechter Memo was faxed to the
BOE. (Trial Tr. at 859:6-20; Pl.’s Ex. 56; Pl.’s Ex. 84.)
84.
Dr. Gonzales saw Plaintiff on March 15, 2001. (Trial Tr. at 134:20-135:8.) On
March 15, 2001, Dr. Gonzales wrote another letter that he sent to the Committee on Finance and
to Dr. Arnold. (Trial Tr. at 134:5-13.) The letter reiterated that Plaintiff’s cervical radiculopathy
was work-related and that Mercy Works (acting on behalf of the City) had recommended that he
perform sedentary work with limited use of his right arm. (Trial Tr. at 134:22-135:1; Pl.’s Ex.
24.) The letter then stated: “His present work requires him to open & close the large gate at the
police pound. This is significantly exacerbating his cervical radiculopathy and causing it to
spread to his left upper limb. I strongly disagree with his present work duties.” (Pl.’s Ex. 24.)
Dr. Gonzales testified that “the delay in treatment and the lack of appropriate treatment was
28
making his condition worse.” (Trial Tr. at 136:15-16.) Dr. Gonzales never received a response
from the Committee on Finance. (Trial Tr. at 138:18-23.)
85.
Dr. Gonzales told Plaintiff not to open and close the gate on March 15th, but
Plaintiff continued to do so, which exacerbated his arm injury. (Trial Tr. at 336:19-337:5.)
86.
On April 3, 2001, Dr. Gonzales sent another letter to the Committee on Finance.
(Trial Tr. at 138:8-12.) It stated that Plaintiff was “getting worse as a result of ongoing
aggravation of his work related cervical radiculopathy. Due to his deterioration I am
recommending that he cease working at this time. He is to be re-evaluated in two weeks.” (Pl.’s
Ex. 25.) Dr. Gonzales never received a response from the Committee on Finance. (Trial Tr. at
138:18-23.)
87.
At some point, it came to Bresnahan’s attention that Plaintiff was opening and
closing the gate, and he told Rachmaciej “to put it in writing that [Plaintiff] was not to open and
close the gate, that that was the security guard’s job.” (Trial Tr. at 984:2-8.) Bresnahan testified
that, to the best of his knowledge, none of his supervising staff instructed any of the employees
that Plaintiff was to open and close the gate. (Trial Tr. at 984:21-24.) On April 24, 2001, at
Bresnahan’s direction, Rachmaciej wrote a memorandum to Plaintiff informing him of his job
assignment. (Trial Tr. at 985:7-20; Def.’s Ex. 6.)
88.
On April 24, 2001, Plaintiff received a memorandum from Rachmaciej clarifying
his job assignment. (Trial Tr. at 335:12-18; Def.’s Ex. 6.) The memorandum instructs Plaintiff
that his job duties include:
To verify the vehicle identification number and or plates number of vehicles
leaving the auto pound. 2) To help direct customers into the release trailer or to
their vehicle after payment has been made[. ]As you were previously instructed
Under [sic] no circumstances are you to open or close the gate.
29
(Def.’s Ex. 6.) Plaintiff acknowledged in writing that he received the memorandum on April
24th and additionally wrote, “I was told not to open gate on or about March 15, 2001.” (Id.;
Trial Tr. at 985:24-986:1.) Plaintiff continued his detail at the auto pound and performed the
duties outlined in the April 24th memorandum until he was laid off. (Trial Tr. at 337:13-20.)
89.
Additionally on April 24th, Bresnahan wrote a memorandum to Serafin about
Plaintiff’s duties. (Trial Tr. at 1015:24-1; Def.’s Ex. 7.) The memorandum says:
Be advised that [Plaintiff] was specifically instructed not to open and close the
gate at Central Auto Pound. [Plaintiff] is to check the paper work that the guard
checks to insure the proper vehicle is leaving the auto pound. NO city employee
is to open or close the gate. On several occasions in the past week I was at
Central Auto Pound and observed the security guard open and close the gate.
[Plaintiff] did not touch the gate and is never suppose [sic] to touch the gate.
(Def.’s Ex. 7.) Bresnahan testified that he sent the memorandum as a result of someone, he
could not remember who, asking him to make sure that Plaintiff was acting within his job
restrictions. (Trial Tr. at 1017:15-20.)
90.
On May 14, 2001, Dr. Gonzales wrote another letter stating that Plaintiff was still
under his care “for treatment of his work-related injury” and outlining the treatments he needed.
(Trial Tr. at 141:15-24; Pl.’s Ex. 26.) This note was stamped as received by Traffic Services on
May 18, 2001. (Trial Tr. at 1022:12-22, 1023:8-19; Pl.’s Ex. 91.) Accordingly, someone in
Traffic Services was aware on May 18th that Plaintiff was under the care of a doctor for a workrelated injury. (Trial Tr. at 1023:21-1024:4.) Dr. Gonzales never received a response from the
Committee on Finance. (Trial Tr. at 138:18-23.)
91.
On August 1, 2001, Dr. Gonzales sent a note to the Committee on Finance and
Dr. Arnold stating that Plaintiff remained in Dr. Gonzales’s care and needed physical therapy.
(Trial Tr. at 143:2-10; Pl.’s Ex. 27.) Dr. Gonzales never received a response from the
Committee on Finance. (Trial Tr. at 138:18-23.)
30
92.
On February 20, 2002, Dr. Gonzales sent a note to the Committee on Finance
stating that Plaintiff had to miss a half a day of work due to the severity of his pain from his
radiculopathy and the sedating effects of the pain medication Dr. Gonzales had prescribed.
(Trial Tr. at 143:21-144:5; Pl.’s Ex. 28.) Dr. Gonzales also sent to the Committee on Finance an
order for physical therapy for Plaintiff’s radiculopathy, three times a week for four weeks. (Trial
Tr. at 144:11-23; Pl.’s Ex. 29.) Dr. Gonzales never received a response from the Committee on
Finance. (Trial Tr. at 138:18-23.)
93.
On July 17, 2002, Plaintiff had a visit at Dr. Gonzales’s office. (Trial Tr. at
145:16-17.) Dr. Gonzales testified that Plaintiff’s condition was worsening because he was not
receiving needed medical care. (Trial Tr. at 147:14-19.) Dr. Gonzales noted that Plaintiff
continued to experience weakness and severe pain in his right arm, which were made worse by
activity. (Pl.’s Ex. 30.) Dr. Gonzales noted additional atrophy, discoloration, and swelling of his
right arm and hand. (Id.) Dr. Gonzales indicated that the City had “refused to authorize payment
for [Plaintiff’s] medical care related to his work injury” and that Plaintiff would contact him
when there was “some indication that his employer [will] pay for treatment.” (Pl.’s Ex. 30.)
94.
On July 17, 2002, Dr. Gonzales sent another note to the Committee on Finance
verifying that Plaintiff was still under his care and still needed medical treatment. (Trial Tr. at
148:17-24; Pl.’s Ex. 31.) He sent a similar note on November 22, 2002. (Trial Tr. at 154:20155:3; Pl.’s Ex. 47.) Dr. Gonzales never received a response from the Committee on Finance.
(Trial Tr. at 138:18-23.)
95.
On September 4, 2002, Dr. Gonzales found that Plaintiff’s condition was
worsening. (Trial Tr. at 152:22-24.) That prompted him to write a detailed summary of
Plaintiff’s condition and the treatment and diagnostic testing he needed. (Trial Tr. at 150:14-24;
31
Pl.’s Ex. 45.) The letter concluded: “Plaintiff’s condition is permanent, but I expect that
treatment will benefit him. I also expect that treatment will result in some functional
improvement. At present, and until there is some therapeutic success, he remains totally disabled
from gainful employment. His incapacity for work is directly the result of the work related
injury in question.” (Pl.’s Ex. 45.)
96.
On December 23, 2002, Dr. Gonzales again ordered an MRI of Plaintiff’s cervical
spine. (Trial Tr. at 155:9-14; Pl.’s Ex. 48.)
97.
Plaintiff never received a blue card. (Trial Tr. at 93:16-25, 729:6-9.) His
workers’ compensation file included no First Report of Injury. (Trial Tr. at 730:4-9, 795:3-7.)
Plaintiff’s personnel file did include notice that he filed a claim with the Illinois Industrial
Commission on September 1, 2000. (Trial Tr. at 732:1-5.) It also included Dr. Gonzales’s letter
from September 7, 2000. (Trial Tr. at 732:25-734:2; Pl.’s Ex. 80.) Upon the receipt of these two
documents, Committee on Finance procedures instruct that the Committee has three options: to
begin to pay disability payment, to provide a written explanation for its refusal to pay disability,
or to conduct an investigation into the underlying occurrence. (Trial Tr. at 738:12-739:2.)
98.
Serafin and the Committee on Finance continued to deny that Plaintiff’s injury
was work-related until after Plaintiff was terminated. (Trial Tr. at 781:6-783:7.)
99.
The nerve block injections were never authorized, nor were any of the treatments
Dr. Gonzales requested. (Trial Tr. at 777:5-16.) In fact, no medical treatment was ever
authorized for Plaintiff. (Trial Tr. at 752:8-16.)
32
V.
The 2002 Reduction in Force
100.
In July 2002, a citywide reduction in force (“RIF”) occurred because the revenues
were “falling significantly short” of what had been projected and budgeted for 2002. (Trial Tr. at
684:21-22, 685:5-8.)
101.
On July 1, 2002, Plaintiff received a letter from Commissioner Sanchez advising
him that he was “being placed on paid administrative leave until further notice.” (Pl.’s Ex. 34;
Trial Tr. at 209:7-13.) He also received a packet notifying him that his position was terminated
as part of the RIF and that as of July 31, 2002, he would be laid off. (Def.’s Ex. 21; Trial Tr. at
216:21-217:9.)
102.
From 1989 through 2010, Peter Peso worked in the City’s Office of Budget and
Management (the “OBM”), and he was appointed to the position of Manager of Compensation
Control in 1993. (Trial Tr. at 484:20-24, 493:25-494:5.) In that role, he was responsible for
making sure that City employees were paid according to their salaries and contracts and
managing filled and vacant positions. (Trial Tr. at 485:1-8.)
103.
Peso managed a spreadsheet of positions that were eliminated during the 2002
RIF. (Trial Tr. at 486:3-10; Def.’s Ex. 26.) The spreadsheet was populated from RIF documents
the various departments submitted to the OBM. (Trial Tr. at 486:14-22.)
104.
Peso testified that approximately 50 positions in the Department were eliminated
in the RIF, (Trial Tr. at 489:4-7), but Drumgould testified that testified that approximately 200
employees from the Department were terminated in the 2002 RIF, (Trial Tr. at 828:15-19). It is
clear, however, that the Department eliminated all of its timekeeping positions in the 2002 RIF.
(Trial Tr. at 498:21-25.) Fifteen supervising timekeeping positions and one Chief Timekeeper
position were eliminated from the Department. (Trial Tr. at 498:12-20; Def.’s Ex. 26.)
33
105.
After departments’ proposed layoffs were approved by the budget director, the
forms were sent to the Department of Personnel to determine who would be subject to layoff.
(Trial Tr. at 494:22-495:14.) This determination involved examining the titles, bargaining units,
and seniority for the employees on the list, as well as the various contracts and City personnel
rules. (Trial Tr. at 495:16-22.) “Bumping rights” were typically part of a contract or City
personnel rules. (Trial Tr. at 495:23-25.) When a position is eliminated, if the person in that
position is more senior than other employees in the department, she can avoid a layoff by
exercising a right to “bump” the more junior employee out of his position. (Trial Tr. at 496:1-9.)
106.
During the relevant time period, Russell Carlson was the First Deputy Budget
Director in the OBM. (Trial Tr. at 684:6-12.) His duties in that position involved formulating or
supervising the formulation of the City’s budget each year and monitoring the City’s
expenditures and revenues. (Trial Tr. at 684:13-17.) Carlson testified that the positions that
were eliminated in the 2002 RIF were supposed to remain unfilled at least through 2003. (Trial
Tr. at 685:14-19.) Carlson testified that 300 to 400 or more positions were eliminated citywide
in the 2002 RIF. (Trial Tr. at 694:20-24.) The OBM determined targeted dollar amounts each
department needed to cut, and the department heads were free to decide what criteria to use in
selecting positions to eliminate. (Trial Tr. at 685:20-686:9.) Peso was in charge of keeping track
of the lists of positions the department heads decided to cut. (Trial Tr. at 686:10-14.)
107.
At the time, John Sullivan was the Managing Deputy Commissioner of the
Department and he was the Department’s contact on its RIF form. (Trial Tr. at 688:1-4; Pl.’s Ex.
97.) On June 19, 2002, Carlson sent Sullivan a memorandum with an attached spreadsheet
explaining the OBM’s determination of the number of positions the Department would need to
lay off. (Trial Tr. at 688:5-689:22; Pl.’s Ex. 13.)
34
108.
The OBM’s review of the lists the department heads sent back of positions they
intended to cut was primarily mathematical, to make sure they met the dollar amount they were
requested to meet, and to ensure that the departments were not eliminating vital positions. (Trial
Tr. at 693:8-20.)
109.
Sullivan testified: “The budget office gave the department a set dollar amount of
personnel savings that they had to achieve during that budget season. Each bureau within the
department was then passed along their budget ceiling with the amount of cuts they had to come
up with. Each bureau, which is run by a deputy commissioner, submitted to the commissioner's
office a list of people that they proposed to be included in the layoff. Those lists were reviewed
with the commissioner, probably Jack Kenney who was the Deputy Commissioner of
Administrative Services, and the bureau, the deputies of the bureaus, and ultimately a final list
was submitted to the Office of Budget and Management.” (Trial Tr. at 704:8-19.) Sullivan
testified that he was involved in the Department’s determination of what positions to eliminate,
but Commissioner Sanchez had the final say on the list that the Department submitted to the
OBM. (Trial Tr. at 704:20-23.)
110.
Jack Kenney was the Deputy Commissioner of the Bureau of Administration,
which is within the Department of Streets and Sanitation. (Trial Tr. at 895:15-19, 897:8-14.) As
the Deputy Commissioner, Kenney was responsible for the entire Bureau of Administration,
which included the Personnel, Contacts, Payroll, and Finance divisions. (Trial Tr. at 897:22-24.)
One of his duties was to prepare and submit the budget to the OBM for approval. (Trial Tr. at
898:6-11.)
35
A.
The transition to Kronos
111.
In January 2000, the Department converted to electronic timekeeping through the
Kronos system. (Trial Tr. at 634:10-15.)
112.
In January 2001, Gualberto Lopez became the Coordinator of Special Projects for
the City. (Trial Tr. at 657:5-14.) In that position, he oversaw payroll for the Department. (Trial
Tr. at 657:16-20.) Lopez testified that when Kronos became widely implemented, the City no
longer had a need for supervising timekeepers. (Trial Tr. at 679:3-680:2.) Lopez testified that
there were currently no supervising timekeepers within the Department, and that after the July
2002 RIF, there were no chief timekeepers employed in the Department or, to his knowledge, in
the City. (Trial Tr. at 681:23-682:14.)
113.
Up until and through most of 2001, supervising timekeepers were assigned to the
various bureaus within the Department. (Trial Tr. at 901:1-7.) In late 2001, the Department
began to centralize its timekeeping and payroll functions so that all the supervising timekeepers
worked for the Department as a whole rather than for individual bureaus. (Trial Tr. at 901:1014.)
114.
When the Department began to use Kronos, it was done haphazardly and was not
effective as the Department’s sole timekeeping system. (Trial Tr. at 903:1-9.) In March or
February of 2002, there was a push within the Department to fully implement and utilize Kronos
to its full timekeeping capacity. (Trial Tr. at 903:21-904:2.) Instead of having supervising
timekeepers collect the manually filled out timesheets and enter them and any edits into the
payroll ledger, the timesheets were going to be done in Kronos and automatically submitted to
the payroll, with employees’ individual supervisors submitting any necessary edits. (Trial Tr. at
902:12-19, 904:10-15.) Thus, the supervising timekeepers were moved to a centralized location.
36
(Trial Tr. at 904:16-20.) The Department was one of the three pilot departments to fully
implement Kronos and “totally eliminate manual payroll.” (Trial Tr. at 905:16-906:2.)
115.
Kenney testified that the comptroller suggested that the full implementation of
Kronos would eliminate the need for the timekeeping function and, because “the discussion of a
reduction in force was already on the table,” recommended that the Department eliminate the
timekeeping positions as one piece of its RIF. (Trial Tr. at 910:4-8.) Kenney thus recommended
to Sullivan that all of the timekeeping positions, including the chief timekeeper position, be
eliminated in the RIF. (Trial Tr. at 910:18-911:3, 912:12-17.) Commissioner Sanchez approved
that recommendation. (Trial Tr. at 911:4-6.)
116.
Kenney testified that because of Kronos, all the job titles that fell within the
timekeeping function were eliminated, regardless of what the duties were at the time. (Trial Tr.
at 913:2-7.) After the RIF, there were no chief or supervising timekeeping positions remaining
in the Department. (Trial Tr. at 913:14-21.)
117.
Some employees who held the title of supervising timekeeper were transferred
immediately prior to the RIF. (Trial Tr. at 829:2-5.)
118.
By July 2002, the Department had fully implemented Kronos. (Trial Tr. at 911:7-
12.) Any remaining timekeepers were preparing and entering edits, a task which was to be
reassigned to the on-site supervisors. (Trial Tr. at 911:7-19.)
119.
After Kronos was implemented, there was still a need for oversight of the payroll
function. (Trial Tr. at 915:4-7.) That responsibility fell to field payroll auditors—supervisors in
the field who made sure the time of the employees they supervised was entered properly. (Trial
Tr. at 915:17-24.) Kenney testified, however, that all of the functions for timekeeping were
necessary at least until the end of 2002. (Trial Tr. at 918:10-14.)
37
120.
At some point, Stevens returned to the BOE to perform the timekeeping and
payroll tasks that had been assigned to Plaintiff. (Trial Tr. at 650:20-25.) However, since he
performed the supervising timekeeper tasks under the job title of laborer, his position was not
eliminated in the 2002 RIF. (Trial Tr. at 653:1-12.)
121.
From 1999 until at least 2004, the Department had an employee, whose official
title was Assistant Commissioner, who was in charge of payroll and timekeeping. (Trial Tr. at
830:11-17.)
122.
Murphy prepared a list of positions he thought could be eliminated from the BOE
without negatively impacting the bureau. (Trial Tr. at 877:14-16, 878:22-879:2.) He included
the chief timekeeping position because no one had been performing it and the BOE had not been
negatively impacted. (Trial Tr. at 878:19-879:17.) Additionally, the BOE had no supervising
timekeepers since Plaintiff’s transfer. (Trial Tr. at 884:7-11.) The Department was transitioning
to Kronos, which reduced the number of timekeeping positions that were necessary, and was
centralizing the remaining timekeeping functions as a Department timekeeping unit rather than
multiple bureau timekeeping units. (Trial Tr. at 883:19-23.) Murphy did not make the final
decision as to the Department’s RIF list, however. (Trial Tr. at 881:24-882:2.)
123.
Bresnahan was not involved in the decision to include Plaintiff in the July 2002
RIF. (Trial Tr. at 1003:19-25.) Plaintiff’s position as Chief Timekeeper was not in Traffic
Services’ budget, and Bresnahan did not know Plaintiff’s position was going to be eliminated
until the day of the RIF. (Trial Tr. at 1004:1-11.)
VI.
Plaintiff’s Pension Loss
124.
Professor Larry DeBrock testified as an expert witness. He was an economics
professor and the dean of the college of business at the University of Illinois. (Trial Tr. at
38
357:16-18, 358:22-24.) Professor DeBrock performed an analysis of Plaintiff’s pension loss.
(Trial Tr. at 359:20-22.) He considered life expectancy and the schedule of Plaintiff’s monthly
benefits from the pension board, along with a projection of Plaintiff’s future earnings if he had
kept working. (Trial Tr. at 361:14-362:22, 363:15-364:6.) He did not consider Plaintiff’s health
condition or specific life expectancy, only the statistical average life expectancy for a man
Plaintiff’s age. (Trial Tr. at 378:1-13.) He did not review the Illinois Pension Code to determine
if he was calculating the pension in accordance with the applicable laws. (Trial Tr. at 374:1114.)
125.
Professor DeBrock testified that if Plaintiff had retired on his fiftieth birthday, the
present value of his lost pension benefits would be approximately $1.3 million. (Trial Tr. at
366:8-15.) If Plaintiff retired on his fifty-fifth birthday, the present value of his lost pension
benefits would be around $1.2 million. (Trial Tr. at 366:16-19.)
126.
Professor DeBrock relied on Plaintiff’s continuous service date—February 11,
1974, when Plaintiff began working for the City—to make his calculations. (Trial Tr. at 376:18.) He testified that he relied on that date because that was the date listed on the report the
pension fund prepared for Plaintiff. (Trial Tr. at 376:23-25.) He also assumed that Plaintiff
would continue to work after his July 31, 2002 termination. (Trial Tr. at 379:17-24.)
127.
DeBrock testified that if Plaintiff had withdrawn money from his pension, that
would change DeBrock’s pension loss calculations. (Trial Tr. at 377:7-10.)
128.
Jane Tessaro also testified about Plaintiff’s pension loss. Tessaro was the
manager of the benefits department at the Municipal Employees Annuity and Benefit Fund of
Chicago, the pension fund for some City workers. (Trial Tr. at 1041:6-21.) Because the
municipal pension fund is different from the Chicago Park District pension fund, Plaintiff did not
39
start contributing to the municipal pension fund until December 1981. (Trial Tr. at 1042:5-14.)
Thus, when Plaintiff was terminated, he had 21 years of pension credit in the fund, which would
have enabled him to start collecting benefits at age 55. (Trial Tr. at 1043:10-16.) To collect a
pension at 50, an employee needed to have at least 30 years of service credit. (Trial Tr. at
1043:20-23.)
129.
In September 2005, Plaintiff withdrew all of his contributions in the pension
fund—$87,192.95. (Trial Tr. at 1044:1-4.) He testified that he needed the money to pay bills
after he was terminated. (Trial Tr. at 220:2-7.) Once an employee receives a refund of his
pension contributions, he forfeits all future benefits from the pension fund. (Trial Tr. at 1044:59.)
130.
A City employee’s continuous service date is used for purposes of salary,
advancement, and vacation; it does not indicate when an employee began contributing to the
pension. (Trial Tr. at 1045:1-9.)
131.
Tessaro testified that any calculation of benefits that did not take the Pension
Code into consideration would not be correct because the Pension Code describes “the formula
to use in calculating a benefit, what types of benefits are pensionable, how to calculate service
credit, how to calculate final average salary.” (Trial Tr. at 1046:8-16.)
132.
Tessaro testified that, given Plaintiff’s termination on July 31, 2002, if Plaintiff
had not withdrawn money from his account, he would have received $2,091.00 a month
beginning at age 55. (Trial Tr. at 1046:17-23.) If he had not been terminated and had instead
continued to work at his same salary until age 55, he would have received a pension of $3,507
per month beginning at age 55. (Trial Tr. at 1046:24-1047:5.)
40
CONCLUSIONS OF LAW
I.
Legal Standards
1.
The ADA prohibits an employer from retaliating against an employee for
requesting an accommodation. 42 U.S.C. § 1220(a).
2.
The jury’s verdict that Defendant did not discriminate against Plaintiff under the
ADA does not foreclose Plaintiff’s ADA retaliation claim. “The Act prohibits an employer from
retaliating against an employee who has raised an ADA claim, whether or not that employee
ultimately succeeds on the merits of that claim.” Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 786
(7th Cir. 2007) (citing Cassimy v. Bd. of Educ. of Rockford Pub. Schs., 461 F.3d 932, 938 (7th
Cir. 2006)). Rather, “it is good faith and reasonableness, not the fact of discrimination, that is
the critical inquiry” in determining whether an employer retaliated based on an employee’s
protected actions under the ADA. Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d 1090, 1096 (7th
Cir. 1998) (quoting Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir. 1982)).
3.
The retaliation provisions of the “principal federal employment discrimination
statutes are materially identical.” Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir. 2003) (citing
Title VII, 42 U.S.C. § 2000e-3(a); the Age Discrimination in Employment Act, 29 U.S.C. §
623(d); the Rehabilitation Act, 29 U.S.C. § 794(d); and the ADA, 42 U.S.C. § 12203(a)).
Therefore, the framework for the analysis of retaliation claims is the same under these statutes.
Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 758 n.16 (7th Cir. 2006). “[C]ourts look to Title
VII retaliation cases for guidance in deciding retaliation cases under the ADA.” Casna v. City of
Loves Park, 574 F.3d 420, 427 (7th Cir. 2009).
41
II.
Whether the City Retaliated Against Plaintiff in Violation of the ADA
4.
Plaintiff argues that Defendant retaliated against him because he requested ADA
accommodations by denying his pay increases and terminating him. (R. 125, Third Am. Compl.
¶ 68.) Plaintiff seeks damages for the pay denials and the lost pension benefits. (Id. at 15.) To
succeed on his retaliation claim, Plaintiff must prove by a preponderance of the evidence that he
requested an accommodation, and that his request was the but-for cause of his pay increase
denials or his termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528
(2013).
5.
Plaintiff engaged in a protected activity under the ADA when he requested
accommodations for his injury. “[A]n informal complaint may constitute protected activity for
purposes of retaliation claims.” Casna, 574 F.3d at 427. Plaintiff repeatedly complained to his
supervisors that he was having problems performing his newly assigned tasks due to his injury.
(Trial Tr. at 61:23-62:12, 250:8-10, 636:14-24.) Additionally, Plaintiff’s counsel sent Defendant
a letter requesting accommodations. (Pl.’s Ex. 49.) Finally, Dr. Arnold, Dr. Fischer, and Dr.
Gonzales repeatedly informed Defendant that Plaintiff required an accommodation—namely,
limited use of his right arm. (Pl.’s Ex. 21, 22, 23, 24, 42, 78.) These communications should
have conveyed to Defendant that Plaintiff required accommodation under the ADA. See Casna,
574 F.3d at 427; Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195 (7th Cir. 1994).
Accordingly, Plaintiff has proved by a preponderance of the evidence that he engaged in a
protected activity under the ADA.
6.
Plaintiff’s pay increase denials were materially adverse employment actions.
Defendant urges this Court to conclude that the merit pay increases Plaintiff was eligible for
were bonuses to which Plaintiff was not entitled, and thus that the denials of the increases did not
42
constitute adverse employment actions. (R. 521, Def.’s Proposed Findings at 8.) The denial of a
raise qualifies as an adverse employment action, but the denial of a bonus does not. Farrell v.
Butler Univ., 421 F.3d 609, 614 (7th Cir. 2005) (citing Hunt v. City of Markham, 219 F.3d 649,
654 (7th Cir. 2000); Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000)).
The Seventh Circuit has distinguished between the two: “Bonuses generally are sporadic,
irregular, unpredictable, and wholly discretionary on the part of the employer. Raises are the
norm for workers who perform satisfactorily.” Hunt, 219 F.3d at 654. “[T]he denial of a bonus
is inherently ambiguous, as well as less damaging to the employee because he didn’t count (or at
least should not have counted) on it,” while “[t]he denial of a raise is more likely to reflect
invidious motivation.” Id.
7.
The evidence in the record establishes that the merit pay increases Plaintiff was
denied were more akin to raises than to bonuses. Murphy referred to a merit pay increase as “a
salary advancement” and “a merit raise.” (Trial Tr. at 862:4, 865:2.) Bresnahan referred to it as
“a merit salary increase.” (Trial Tr. at 992:3.) Salary advancement opportunities came up
routinely for some employees, every two to three years. (Trial Tr. at 862:15-18, 988:16-20.)
Although a supervisor was not required to give an eligible employee a merit pay increase, (Trial
Tr. at 888:13-16), a written explanation was required for a denial, (Trial Tr. at 632:24-633:2).
Bresnahan testified that a merit pay increase was a pay raise that an employee was entitled to if
he deserved it. (Trial Tr. at 988:6-11.) He differentiated between a cost-of-living increase and a
merit pay increase. (Trial Tr. at 989:5-8.) Finally, the merit pay increases were not one-time
rewards for good service; rather, they were permanent salary increases. (Trial Tr. at 993:1-7.)
Accordingly, the Court concludes that the merit pay increases were raises rather than bonuses,
and thus the denials of merit pay increases constituted materially adverse employment actions.
43
8.
It is undisputed that Plaintiff’s termination constituted a materially adverse
employment action. See Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1116 (7th Cir. 2009).
Thus the only issue in dispute is whether Plaintiff’s requests for accommodation were the but-for
cause of his pay increase denials or his termination.
9.
Plaintiffs in retaliation cases rarely have a direct admission by their employers of
retaliatory motive, so causation is typically established through “a convincing mosaic of
circumstantial evidence that would support the inference that a retaliatory animus was at work.”
Cloe v. City of Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013) (internal citations and
quotation marks omitted) (quoting Smith v. Bray, 681 F.3d 888, 901 (7th Cir. 2012)). The types
of circumstantial evidence that are frequently used include “suspicious timing, ambiguous
statements oral or written, and other bits and pieces from which an inference of retaliatory intent
might be drawn,” as well as “evidence that the employer offered a pretextual reason for an
adverse employment action.” Id. (internal citations and quotation marks omitted) (quoting Bray,
681 F.3d at 901).
10.
Plaintiff argues that the “suspiciously short period of time” between Plaintiff’s
July 1, 2000 pay increase denial and his notifying his superiors that he needed accommodation
provides the causal link between the two. (R. 528, Pl.’s Proposed Findings & Conclusions at
29.) However, Plaintiff testified that he did not tell Vittori that he needed accommodation until
August 8th. (Trial Tr. at 262:5-9.) In late June, Plaintiff did alert Heffernan and Donlan that he
was having problems performing the duties Vittori assigned, (Trial Tr. at 61:23-62:12, 250:8-10),
but he did not request an accommodation, (Trial Tr. at 251:12-18). Plaintiff testified that he had
a good relationship with Donlan and Donlan had no animus towards him. (Trial Tr. at 254:1220.) The Court finds no evidence in the trial record that indicates that Plaintiff requested an
44
accommodation before his July 1, 2000 pay increase denial, or that Donlan informed anyone
about Plaintiff’s statement that he was struggling with his new duties. Plaintiff contends that
Defendant’s failure to produce any documentation to justify the pay denial “is compelling
evidence that the City denied these pay increases in retaliation for Plaintiff exercising his rights
under the ADA,” but Plaintiff has failed to prove that at the time of the first denial, Plaintiff had
exercised his rights under the ADA. The Court thus cannot conclude that Plaintiff’s July 1, 2000
pay increase denial was caused by his request for accommodation.
11.
Plaintiff fails to provide the Court any reasoning on which it might base a
conclusion that any of the subsequent pay denials were retaliatory. In fact, the Court finds that
the subsequent pay denials were also unrelated to Plaintiff’s requests for accommodation.
Instead, they were based upon the City’s confusing practice of detailing employees to various
positions in other divisions within their department but maintaining their same official
assignments. That practice led to Plaintiff’s performance while he was detailed to Traffic
Services being evaluated by Brian Murphy, the Deputy Commissioner of the BOE, because
Plaintiff was identified within the Department as a Chief Timekeeper in the BOE. On October 1,
2001, Murphy indicated that Plaintiff’s performance as a Chief Timekeeper was not worthy of a
pay increase—because Plaintiff was in fact not acting as Chief Timekeeper at the time. (Trial Tr.
at 863-869.) The Court finds that Murphy’s evaluation, while perhaps unfair, was not a pretext
for retaliation, and the subsequent denial of a raise was not motivated by the City’s desire to
retaliate against Plaintiff for requesting accommodation.
12.
Plaintiff’s January 1, 2002 pay denial was based on an evaluation by the Chief
Auto Pound Supervisor, Rachmaciej. That evaluation recommended that Plaintiff’s raise be
denied “until his work attendance improve[d]” because of his “excessive absenteeism.” (Trial
45
Tr. at 990-991; Def.’s Ex. 8.) Similarly, Plaintiff’s February 2002 and May 2002 pay denials
were based on his attendance. (Trial Tr. at 996-999, 1005-1007; Def.’s Exs. 11, 15.) Plaintiff
failed to offer any evidence by which the Court might infer that those denials were pretextual,
nor does he refute that he was frequently tardy or absent. Thus, Plaintiff’s pay increase denials
based on his absenteeism do not indicate retaliation against his request for accommodation. See,
e.g., Squibb, 497 F.3d at 787 (“[the employer’s] act of disciplining Ms. Squibb for multiple
absences in this position also does not provide any evidence that it harbored a retaliatory
motive”). The Court concludes that Plaintiff’s requests for accommodation were not the but-for
cause of his pay increase denials.
13.
Plaintiff further contends that his change in job duties evinces retaliatory intent,
and that Hennessy authorized the changes in Plaintiff’s job duties after discovering that he
needed accommodations. (R. 528, Pl.’s Proposed Findings & Conclusions at 30.) In fact, the
evidence in the record shows that Plaintiff’s job duties changed in May of 2000 when Vittori
became Plaintiff’s supervisor. (Trial Tr. at 58:4-59:6, 243:17-244:17.) Plaintiff had never
performed all the duties of the Chief Timekeeper. When Plaintiff’s injury became more
prohibitive than it had been, Hennessy requested a written description of the Chief Timekeeper
duties so she could determine how best to accommodate him.
14.
Finally, Plaintiff provides no reason for this Court to find that he was terminated
in retaliation for his request for accommodation. In fact, Plaintiff was terminated more than a
year after he was accommodated in Traffic Services. Plaintiff fails to point to any requests for
accommodation he made, other than the request to work the late shift rather than the early shift,
after his transfer to Traffic Services. The Court finds no nexus between his termination and his
requests for accommodations under the ADA.
46
15.
Thus, the Court adopts the jury’s advisory determination that Plaintiff failed to
satisfy his burden to prove by a preponderance of the evidence that his requests for
accommodations were the but-for cause of either his termination or his pay-increase denials.
This outcome is not inconsistent with the jury’s verdict for Plaintiff on his state law retaliatory
discharge claim. The jury was instructed that to succeed on his ADA retaliation claim, Plaintiff
must “prove by a preponderance of the evidence that Defendant terminated him and/or denied
him merit pay increases because he requested an accommodation.” (R. 498, Jury Instructions at
27.) The instruction for Plaintiff’s Illinois Workers’ Compensation Act claim stated that to
prove retaliatory discharge, Plaintiff had to prove that he “was terminated because he requested
medical treatment for his work related injury and/or because he filed a Worker’s Compensation
Claim with the Illinois Industrial Commission;” that he sustained damages as a result of his
termination; and that his request for medical treatment and/or filing of a Worker’s Compensation
Claim was a proximate cause of his termination and the resulting damages. (R. 498, Jury
Instructions at 30.) The difference between Plaintiff’s ADA retaliation claim and his state law
retaliatory discharge claim is the protected right. A claim under either requires proof of exercise
of a protected right. 42 U.S.C. § 12203(a) (it is unlawful to discriminate against an individual
who has exercised a right protected by the ADA); Groark v. Thorleif Larsen & Son, Inc., 596
N.E.2d 78, 81 (Ill. App. Ct. 1st Dist. 1992) (a state law retaliatory discharge claim requires “the
plaintiff’s exercise of a right granted by the Workers’ Compensation Act”).
16.
The jury clearly determined that Defendant terminated Plaintiff in retaliation for
requesting medical treatment and/or filing a workers’ compensation claim, not for requesting an
accommodation. Simply put, the objective timeline analysis does not support a finding that
Plaintiff’s multiple accommodation requests, which Defendant attempted to comply with, were
47
the source of Defendant’s animus toward Plaintiff. On the other hand, as the jury properly
concluded, the overwhelming trial testimony and documentary evidence supports a finding that
Plaintiff was targeted for retaliatory treatment after September of 2000 because Defendant
reached the unfounded conclusion that Plaintiff’s medical treatment requests and workers’
compensation claim were fraudulent or “phony.” Plaintiff’s multiple ADA accommodation
requests prior to September of 2000 did not result in illegal retaliation. On the other hand, after
Plaintiff’s workers’ compensation claim was filed in September 2000, there was an immediate
retaliation by Defendant which resulted in the transfer of Plaintiff to a series of adverse job
assignments and the inevitable causal dismissal of Plaintiff. The jury properly concluded that
Plaintiff’s treatment and Defendant’s attempted accommodation of Plaintiff prior to September
2000 shows a lack of discriminatory animus under the ADA.
17.
Because Plaintiff failed to prove by a preponderance of the evidence that his
requests for accommodation under the ADA provided the but-for cause of his termination or his
pay raise denials, the Court finds for Defendant on Plaintiff’s claim of retaliation in violation of
the ADA.
PLAINTIFF’S MOTION TO VACATE
Plaintiff moves the Court to vacate a portion of the Court’s April 19, 2013 Order that
granted judgment in favor of Defendant on his ADA retaliation claim “without disturbing any
other portion of the Judgment and entry of the Order.” (R. 503, Pl.’s Mot. Vacate.) Plaintiff
reminds the Court that the parties and the Court agreed that his ADA retaliation claim was
submitted to the jury on an advisory basis only. (Id. ¶ 2.) Plaintiff sought to submit to the Court
additional evidence on the ADA retaliation claim that was not submitted to the jury. (Id. ¶ 4.)
The Court denied this request on June 5, 2013, and entered and continued the remainder of the
48
motion until the Court ruled on the remaining post-trial motions. (R. 526, Min. Entry.) For the
reasons stated above in its Findings of Fact and Conclusions of Law, the Court now DENIES
Plaintiff’s motion to vacate the advisory jury verdict on the ADA retaliation claim.
DEFENDANT’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
At the close of evidence, Defendant moved for judgment as a matter of law on each of
Plaintiff’s claims. (R. 490, Def.’s Mot. J.) The Court denied the motion without prejudice to its
renewal after the jury verdict. (R. 494, Min. Entry; Trial Tr. at 1155:13-1156:6.) On May 15,
2013, pursuant to Federal Rule of Civil Procedure 50(b), Defendant filed its renewed motion for
judgment on Plaintiff’s state law retaliatory discharge claim. (R. 508, Def.’s Renewed Mot. J.)
Rule 50 authorizes a court to enter judgment as a matter of law if “a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R.
Civ. P. 50(a)(1). Under this standard, “the question is simply whether the evidence as a whole,
when combined with all reasonable inferences permissibly drawn from that evidence, is
sufficient to allow a reasonable jury to find in favor” of Defendant. Hall v. Forest River, Inc.,
536 F.3d 615, 619 (7th Cir. 2008) (citing Hossack v. Floor Covering Assocs. of Joliet, Inc., 492
F.3d 853, 859 (7th Cir. 2007)). In making this determination, the Court may not reweigh the
evidence, draw its own inferences, or substitute its own determinations regarding the credibility
of the witnesses for those made by the jury. Gower v. Vercler, 377 F.3d 661, 666 (7th Cir.
2004). Instead, the Court should “reverse the verdict only if no rational jury could have found
for the prevailing party.” E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir. 2013) (citing
Bogan v. City of Chi., 644 F.3d 563, 572 (7th Cir. 2011)).
“To state a cause of action for retaliatory discharge, plaintiffs must show that: (1) they
were employees of defendants before or at the time of the injury; (2) they exercised some right
49
granted by the Act; and (3) their discharge was causally related to the exercise of their rights
under the Act.” Grabs v. Safeway, Inc., 917 N.E.2d 122, 126 (Ill. App. Ct. 1st Dist. 2009)
(internal citations omitted) (citing 820 Ill. Comp. Stat. 305/1 et seq.; Clark v. Owens-Brockway
Glass Container, Inc., 697 N.E.2d 743, 746 (Ill. App. Ct. 5th Dist. 1998)). It is undisputed that
Plaintiff was employed by Defendant before he was terminated and that he exercised rights
protected by the IWCA by filing a workers’ compensation claim. Defendant argues, however,
that Plaintiff failed to establish the third element of his retaliatory discharge claim—that his
discharge was causally related to the exercise of his rights under the IWCA. (R. 510, Def.’s
Mem. J. at 3.) Specifically, Defendant argues that Plaintiff failed to prove that Commissioner
Sanchez, who made the final decisions as to the RIF, knew that Plaintiff had exercised his rights
under the IWCA, (id. at 4-8), and that the Chief Timekeeper position would not have been
eliminated but for Plaintiff’s statutorily protected activities, (id. at 8-13). Consequently,
Defendant argues that the jury’s verdict in Plaintiff’s favor on his retaliatory discharge claim is
unsupported by the evidence presented at trial and requests judgment as a matter of law. (Id. at
13-14.)
Both of the reasons Defendant provides as to why the Court should grant it judgment as a
matter of law are flawed. First, Plaintiff was not required to expressly demonstrate that the RIF
decision-maker knew about Plaintiff’s workers’ compensation claim and requests for medical
treatment in order for the jury to conclude that Plaintiff was discharged in retaliation of those
protected activities. See, e.g., Gomez v. The Finishing Co., 861 N.E.2d 189, 198 (Ill. App. Ct.
1st Dist. 2006) (even though plaintiff had no direct evidence of pretext, a reasonable jury could
have concluded that defendant’s reason for terminating plaintiff was pretextual and found that
plaintiff’s discharge was retaliatory). The jury only had to find that it was more likely than not
50
that Plaintiff’s workers’ compensation claim and requests for medical treatment were causally
related to his termination. See Grabs, 917 N.E.2d at 126. The evidence presented at trial, taken
as a whole, supports the conclusion that Plaintiff began to experience adverse consequences as
soon as he filed his workers’ compensation claim, in retaliation of that claim, culminating in his
termination.
In addition, Defendant’s assertion that Plaintiff had to prove that his protected activities
under the IWCA were the but-for cause of his termination is incorrect. To succeed on his state
law retaliatory discharge claim, Plaintiff was required to show that his workers’ compensation
claim and requests for medical treatment were the proximate cause of his termination. See
Clemons v. Mech. Devices Co., 704 N.E.2d 403, 408 (Ill. 1998) (“Cases brought for retaliatory
discharge based on an employee’s filing of a workers’ compensation claim should be reviewed
using traditional tort analysis.”). The jury was informed of this standard and was given a
modified version of the Illinois Pattern Jury Instruction for retaliatory discharge. See Ill. Pattern
Jury Instr.-Civ. 250.01. The jury was also properly instructed that the “proximate cause” of
Plaintiff’s termination “need not be the only cause, nor the last or nearest cause. It is sufficient if
it combines with another cause resulting in the injury.” (R. 498, Jury Instructions at 29); Ill.
Pattern Jury Instr.-Civ. 15.01. Defendant’s argument that the implementation of Kronos and the
City-wide RIF were the reasons for Plaintiff’s termination thus fails to convince the Court that
no reasonable jury could have concluded that Plaintiff’s workers’ compensation claim and
requests for medical treatment were proximate causes of his termination.
On January 24, 2001, despite having been informed by Dr. Gonzales that Plaintiff’s
injury was work-related, (Pl.’s Ex. 39), the Committee on Finance sent Plaintiff a letter denying
liability for his worker’s compensation claim. (Pl.’s Ex. 16). The Committee on Finance
51
continued to refuse to authorize payment for any medical treatment or acknowledge that
Plaintiff’s injury was work-related, despite being informed by Dr. Arnold that the condition was
work-related, (Pl.’s Ex. 20), and receiving multiple requests for follow-up treatment by both Dr.
Arnold and Dr. Gonzales, (see, e.g., Pl.’s Exs. 21, 22, 23, 26, 30, 39, 45). The Law Department
also informed the Committee on Finance that Plaintiff had a work-related injury and that he
needed to be placed on duty disability and accommodated when Dr. Arnold released him to
return to work. (Pl.’s Ex. 55, Schechter Mem.) The Law Department also recommended that Dr.
Arnold reevaluate Plaintiff to consider whether the treatment Dr. Gonzales recommended was
appropriate. (Id.) Plaintiff never received that treatment, though, and someone wrote the word
“phony” on the top of the Schechter Memo before it was faxed to the BOE, suggesting that the
Committee on Finance believed that Plaintiff’s workers’ compensation claim was fraudulent.
(Pl.’s Exs. 55, 56.) The evidence outlined above persuasively demonstrates Defendant’s
retaliatory animus towards Plaintiff.
The Court also finds evidence by which a rational jury could have concluded that this
retaliatory animus was a factor in Plaintiff’s termination. An analysis of the timeline in this case
demonstrates a series of progressively worse work assignments that began immediately after
Plaintiff requested medical treatment and filed a worker’s compensation claim. Despite Dr.
Fischer’s assessment that Plaintiff was qualified to perform the Chief Timekeeping functions
with the same restriction he had been accommodated with for years—limited use of his right
hand and arm, (Pl.’s Ex. 42)—the City effectively demoted Plaintiff once he filed a workers’
compensation claim. Hennessey testified that Plaintiff was not demoted because he still had the
same job title and received the same salary, although the Court notes that the job title was later
cited as the reason for Plaintiff’s termination. The evidence presented at trial indicates that the
52
transfer was a demotion: Plaintiff went from a supervisory position in which he was responsible
for overseeing the payroll operations of the BOE to a position in which he checked receipts as
people left the auto pound.
On September 1, 2000, the day Plaintiff filed his workers’ compensation claim, he was
transferred to the Construction Division to answer phones. (Trial Tr. at 89:1-8, 272:13-18.) A
month later, he was transferred to the garage of the Transportation Division to answer phones.
(Trial Tr. at 91:8-93:8, 290:20-22.) Hennessey testified that she authorized those transfers and
she had no idea that Plaintiff had filed a worker’s compensation claim. (Trial Tr. at 592:5-25.)
Donlan testified, however, that he called Hennessey on August 24, 2000, a week before Plaintiff
was transferred to the Construction Division, to request a blue card authorizing medical
treatment for Plaintiff. (Trial Tr. at 287:9-288:6.) The Court observes that Hennessey was
antagonistic on the stand, and the Court finds it plausible that the jury significantly discounted
her testimony. The Court defers to credibility determinations the jury had to make to resolve
witnesses’ conflicting testimony. Gower, 377 F.3d at 666.
On December 18, 2000, Dr. Gonzales sent the City a note stating that Plaintiff was
impaired by a work-related injury and requesting that Plaintiff refrain from working due to that
injury. (Pl.’s Ex. 43.) On December 21st, Hennessey sent Plaintiff a letter referencing Dr.
Gonzales’s note. (Def.’s Ex. 2.) The letter did not advise Plaintiff to apply for disability or
authorize him to seek medical treatment for his injury; it advised him to apply for a leave of
absence. (Id.) When Donlan delivered the letter to Plaintiff, Donlan told him not to report back
to work. (Trial Tr. at 297:22-23.) Finally, after the Law Department wrote the Schechter Memo
informing the Committee on Finance that Plaintiff should be placed on disability, (Pl.’s Ex. 55),
Plaintiff was reinstated and put to work checking receipts at the auto pound, where he worked
53
outside year-round, (Trial Tr. at 212:25-213:11.). Plaintiff’s assignment to the auto pound
happened the same day the Schechter Memo with the word “phony” written across it was faxed
to the BOE. (Pl.’s Ex. 56.) This timeline evinces Defendant’s retaliatory animus that kept
Plaintiff in increasingly undesirable positions, kept Plaintiff in the dark about his multiple
negative performance reviews and pay denials, and ultimately led to him being terminated in the
RIF because of a job title that did not match his duties.
Defendant argues that Plaintiff’s position was eliminated as a cost-cutting measure
because the City no longer needed timekeepers. (R. 510, Def.’s Mem. J. at 9-11.) “[I]f an
employer chooses to come forward with a valid, nonpretextual basis for discharging its
employees and the trier of fact believes it, the causation element required to be proven is not
met.” Clemons, 704 N.E.2d at 406 (citing Hartlein v. Ill. Power Co., 601 N.E.2d 720, 730 (Ill.
1992)). Nevertheless, an employer that presents “an arguably valid basis for firing an employee,
. . . may still be liable for retaliatory discharge if the actual motivation for the termination was
the employee’s pursuit of a workers’ compensation claim.” Brooks v. Pactiv Corp., 729 F.3d
758, 768 (7th Cir. 2013) (citing Siekierka v. United Steel Deck, Inc., 868 N.E.2d 374, 380 (Ill.
App. Ct. 3d Dist. 2007)). Here, Defendant put forth a basis for Plaintiff’s discharge, the Citywide RIF, and it is clear that the jury found that basis to be pretextual. This conclusion does not
signify that the jury determined that Defendant did not actually need to lay off employees in
order to maintain fiscal stability. Rather, the evidence presented at trial painted a clear picture
that the filing of Plaintiff’s workers’ compensation claim and his continued requests for medical
treatment led to a series of increasingly undesirable work assignments and pay raise denials. The
Department employed individuals to supervise and edit payroll and timekeeping in the Kronos
system until at least 2004, (Trial Tr. at 830:11-17), undermining Defendant’s contention that
54
Kronos rendered all timekeeping positions obsolete. Additionally, timekeepers other than
Plaintiff were transferred to positions that did not have the timekeeper title in advance of the
RIF. (Trial Tr. at 829:2-5.) Thus, the evidence at trial proved that despite the Department’s
continuing need for the very timekeeping tasks Plaintiff had been performing and despite the fact
that Defendant could have transferred Plaintiff to a different title that would not have been
eliminated, Plaintiff was terminated. The jury was entitled to find that his termination was
motivated by a retaliatory animus driven by Defendant’s belief that Plaintiff’s workers’
compensation claim and requests for medical treatment were “phony.” The Court concludes that
a rational jury could have found for Plaintiff on his state law retaliatory discharge claim. See
AutoZone, 707 F.3d at 835. Accordingly, the Court DENIES Defendant’s renewed motion for
judgment as a matter of law.
DEFENDANT’S MOTION FOR A NEW TRIAL OR, ALTERNATIVELY, TO
REINSTATE THE ORIGINAL JURY VERDICT
Defendant next moves pursuant to Federal Rule of Civil Procedure 59 for a new trial or,
alternatively, to reinstate the jury verdict from the first trial. (R. 511, Def.’s Mot. New Trial.)
Rule 59 allows a court to order a new trial if “the verdict is against the clear weight of the
evidence or the trial was unfair to the moving party.” Clarett v. Roberts, 657 F.3d 664, 674 (7th
Cir. 2011) (quoting David v. Caterpillar, Inc., 324 F.3d 851, 863 (7th Cir. 2003)). In ruling on
such a motion, a court “may consider the credibility of witnesses, the weight of the evidence, and
anything else which justice requires.” Bob Willow Motors, Inc. v. Gen. Motors Corp., 872 F.2d
788, 798 (7th Cir. 1989). The trial court must afford some deference to the jury’s conclusions.
Mejia v. Cook Cnty., Ill., 650 F.3d 631, 633 n.1 (7th Cir. 2011). “A court will set aside a verdict
as contrary to the manifest weight of the evidence only if no rational jury could have rendered
the verdict.” Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir. 2012) (internal alterations omitted)
55
(quoting Marcus & Millichap Inv. Servs. of Chi. v. Sekulovski, 639 F.3d 301, 313 (7th Cir.
2011)); see also Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995) (A new trial should be
granted “only when the record shows that the jury’s verdict resulted in a miscarriage of justice or
where the verdict, on the record, cries out to be overturned or shocks [the Court’s] conscience.”).
Defendant argues that it was deprived of a fair retrial for a number of reasons: (1)
Plaintiff violated in limine rulings; (2) the Schechter Memo should have been excluded or
remained redacted; (3) Plaintiff’s expert witness should have been barred from testifying about
Plaintiff’s alleged lost pension benefits; (4) Plaintiff did not properly impeach Defendant’s
witnesses; (5) testimony regarding allegedly falsified personnel documents should have been
excluded; and (6) the Court’s statement about certain memoranda Plaintiff had drafted
“potentially confused the issues and biased the jury.” (R. 511, Def.’s Mot. New Trial ¶¶ 10-16.)
The Court addresses each argument in turn.
I.
Violations of in Limine Rulings
Defendant first argues that Plaintiff violated the Court’s in limine rulings while the City
complied with the rulings, thus giving Plaintiff an unfair advantage that warrants a new trial. (R.
524, Def.’s Mem. New Trial at 2.) As a preliminary matter, the Court notes that it clearly stated
during the pretrial conference that its in limine rulings were conditional and subject to
reexamination in the context of the trial. (R. 497, Mar. 18 Tr. at 39:4-7 (“[I]f you want to revisit
that at trial, you’re free to do that. All the rulings that I’m making right now are all conditional
rulings subject to being revisited in the context of the trial.”).) At trial, the Court did in fact
adjust some of its in limine rulings, which is within the Court’s discretion. Farfaras v. Citizens
Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006). Defendant’s argument that
Plaintiff’s violation of certain in limine rulings justifies a new trial strikes the Court as a
56
backdoor attempt to seek reconsideration of those rulings. Nevertheless, the Court examines
each of Plaintiff’s alleged in limine violations to determine if they provide grounds for a new
trial.
A.
Evidence about Plaintiff’s 1987 and 1992 injuries
Defendant contends that the Court granted Plaintiff’s motion in limine number 8 to
exclude any evidence regarding his 1987 and 1992 work-related injuries but allowed Plaintiff to
testify about those injuries and the resultant 1995 legal settlement. (R. 524, Def.’s Mem. New
Trial at 3-4.) In addition, Defendant contends that Plaintiff objected to its attempts to crossexamine witnesses on the same subjects and those objections were sustained. (Id.) Defendant
argues that this double standard “undoubtedly confused the jury and prevented the jury from
hearing evidence that oppugned the credibility of Plaintiff” and Dr. Gonzales. (Id. at 4.)
Defendant mischaracterizes Plaintiff’s motion in limine number 8. Plaintiff’s motion in
limine number 8, which the Court granted, sought to exclude evidence regarding Plaintiff’s 1987
and 1992 work-related injuries, related workers’ compensation claims, and the legal settlement
of those workers’ compensation claims. (R. 395, Pl.’s Mots. in Lim. at 89.) It did not seek to bar
reference to Plaintiff’s alleged disability, which is a substantial focus of this litigation, or
Defendant’s 1995 Agreement to accommodate the resulting medical restrictions. (Id.) The
Court notes that the 1995 Agreement is different than any legal settlement of Plaintiff’s claims,
to which motion in limine number 8 applied. Plaintiff’s counsel walked the fine line between
refraining from referring to Plaintiff’s prior work-related injuries so as not to relitigate those
issues and providing the necessary context for the 1995 Agreement. For example, in the first
section of the transcript Defendant complains about, Plaintiff said no more than was necessary to
provide context for the accommodated position he held:
57
Q: Okay. And what -- what happened in 1995 that caused you to have a change in
position in the bureau?
A: Oh, the City made an agreement that I would be made the Chief Timekeeper.
Q: Okay. Before that agreement, was -- did you have any physical problem that
arose?
A: Yes. My arm had swollen up and there, you know -- and it was from doing a
lot of repetitive use things.
Q: Okay. And in that time, about 1995, you and the City of Chicago agreed that
you would become Chief Timekeeper instead, right?
A: Correct.
(Trial Tr. at 39:9-20.) Plaintiff did not mention anything about his workers’ compensation
claims or testify that his injury was work-related. If Plaintiff had not set out this scant
background information, the jury would have been confused as to why Plaintiff had an
agreement with the City, why he was not performing all the tasks of a Chief Timekeeper, and
why the addition of duties in the summer of 2000 would have been so surprising and detrimental.
(See also Trial Tr. at 52:17-23, 79:21-80:7.) Similarly, Dr. Gonzales’s testimony describing
Plaintiff’s medical condition and accompanying restrictions was directly relevant to the issues at
trial, and Defendant’s objections to that testimony are similarly meritless.
Defendant’s argument that it was subject to a double standard is disingenuous. For the
most part, Defendant did not raise any objections to testimony about these matters at trial. When
Defendant did object, the Court ordered Plaintiff to rephrase the question. (Trial Tr. at 63:1624.) Defendant was able to elicit testimony about Plaintiff’s prior injuries and the 1995
Agreement to the same extent Plaintiff was. (See, e.g., Trial Tr. at 222:10-18.) Defendant was
not, however, allowed to elicit testimony about any legal settlement regarding Plaintiff’s prior
injuries or testimony that Plaintiff’s prior injuries were work-related, which would have violated
the in limine ruling. (See Trial Tr. at 224:25-225:6, 259:1-7.) Additionally, Hennessy—
Defendant’s witness—seemed to attempt to refer to “the settlement agreement” and prior
litigation as much as possible, to which Defendant did not object. (See, e.g., Trial Tr. at 530:4-6,
58
537:9-18, 538:6-10, 539:4-8, 540:24-541:5, 542:9, 553:19-23, 554:2-5, 564:10-11, 564:15,
564:18, 564:21-23, 566:24-25, 568:14-16, 568:24-569:2.) Finally, the Court had to instruct
Hennessy not to mention the legal settlement and instruct the jury to disregard any mention to the
1995 settlement agreement. (Trial Tr. at 569:16-22.)
Defendant urges the Court to find duplicitous Plaintiff’s contention that because his
references to injuries did not refer to the work-related nature of his injuries, they complied with
the in limine ruling. Plaintiff’s motion in limine number 8 states, in relevant part:
This Court should bar the City from presenting evidence or testimony regarding
the 1987 & 1992 work related injuries and the settlement of those claims because
it is undisputed they were work related . . . The City admits that it was
accommodating the Plaintiff for his disability as a result of these injuries from
1995 through 2000. The fact of prior workman’s compensation injuries, claims
and disposition is irrelevant to the issues in this case which relate to the
Defendant’s conduct in the years 2000-2002.
(R. 395, Pl.’s Mots. in Lim. at 89.) The Court does not find Plaintiff’s characterization of this
motion in limine duplicitous or deceitful. The clear intent of this motion in limine was to exclude
evidence related to prior workers’ compensation claims and work-related injuries in order to
keep the jury focused on the relevant time period. The Court’s rulings at trial served this purpose
by excluding references to the work-related nature of the prior injuries while allowing basic
background information the jury needed. Any violation Defendant perceived does not warrant a
new trial.
B.
Evidence about Plaintiff’s workers’ compensation claim
Next, Defendant argues that Plaintiff misled and confused the jury by “intentionally
conflating medical insurance and duty disability benefits and . . . suggesting that he was denied
medical treatment” in contravention of the Court’s ruling on Defendant’s motion in limine
number 2 to exclude evidence of and references to the previously dismissed Workers’
59
Compensation Act claim and any alleged denial of medical treatment. (R. 524, Def.’s Mem.
New Trial at 5-6.) The Court granted Defendant’s motion in limine number 2 in part, but denied
it in part. Specifically, the Court ruled that evidence pertaining only to Plaintiff’s unsuccessful
retaliatory denial of medical treatment claim would be excluded but that evidence pertaining to
elements of Plaintiff’s remaining retaliation claim would be allowed. (R. 497, Mar. 18 Tr. at
14:6-23.) The Court indicated that it would rule on individual documents in context if necessary
and stated: “I don’t want to relitigate the WCA claim because that could confuse the jury, but I
understand that the retaliation claim would allow for certain documents to be admitted.” (Id. at
14:19-16:8.)
Defendant raises only one instance when it objected to Plaintiff’s alleged relitigation 1:
when Plaintiff’s counsel asked Serafin whether, as of September 17, 2002, he denied that
Plaintiff’s injury was work-related. (Trial Tr. at 782:16-25.) Defendant argues that Judge
Andersen’s holding that Illinois does not recognize a cause of action for retaliation under the
IWCA short of retaliatory discharge means that evidence that Defendant denied liability and
denied Plaintiff’s requests for medical treatment for a work-related injury are not evidence of
Defendant’s retaliatory intent. This argument is baseless. “[A]n employee exercises a right
under the IWCA merely by requesting and seeking medical attention.” Gordon v. FedEx
Freight, Inc., 674 F.3d 769, 773 (7th Cir. 2012); see also Hinthorn v. Roland’s of Bloomington,
Inc., 519 N.E.2d 909, 913 (Ill. 1988). Evidence that Defendant interfered with Plaintiff’s rights
under the WCA is certainly relevant to the jury’s determination as to whether Defendant later
retaliated against the exercise of those rights. See Michael v. Precision Alliance Grp., LLC, 2014
1
Defendant raises several instances in which it objected to Plaintiff’s line of questioning, but
these objections were based on relevance and lack of foundation, (Trial Tr. 118:17-21, 139:1722, 146:2-7), and leading questions, (id. at 718:21-719:2), not on an alleged relitigation of
Plaintiff’s WCA claims or a violation of an in limine ruling.
60
IL App (5th) 120517-U (Ill. App. Ct. 5th Dist. Jan. 21, 2014) (indirect evidence properly
admitted to prove retaliatory discharge); Gomez, 861 N.E.2d at 198 (same). Additionally, much
of the evidence Defendant complains about was relevant to Plaintiff’s ADA failure to
accommodate claim.
The Court expressly stated in the pretrial conference that the line between what related to
Plaintiff’s unsuccessful retaliation claim and his remaining retaliation claim would be nuanced.
(R. 497, Mar. 18 Tr. at 14:19-15:10.) Accordingly, the Court ruled on documents and testimony
in the context of the trial. Upon review of the trial record as a whole, the Court does not find any
support for Defendant’s claim that the jury’s verdict is based on emotions and prejudices rather
than facts. The Court does concur with Defendant that the jury award, pursuant to the jury
instructions, included compensation for lost pension benefits. The proper response to the
excessive award is not a third trial, but rather a remittitur. The Court addresses Defendant’s
motion for remittitur below.
C.
References to defense counsel
Finally, Defendant objects to Plaintiff’s violation of the Court’s grant of Defendant’s
motion in limine number 10 to prevent Plaintiff from referring to counsel as, inter alia, “the
City” or “the Law Department.” (R. 524, Def.’s Mem. New Trial at 9.) Defendant argues that
“Plaintiff was permitted, over the City’s objections, to refer to defense counsel as attorneys from
the City’s Law Department.” (R. 524, Def.’s Mem. New Trial at 9 (citing Trial Tr. at 532:7-15)).
Defendant contends that Plaintiff’s fleeting reference to “the City’s Law Department” “implied
to the jury that defense counsel were part of the elaborate conspiracy that Plaintiff concocted in
an effort to find some tenuous support for his retaliatory discharge claim.” (Id.)
61
In fact, Plaintiff referenced “attorneys from the Law Department,” Defendant objected,
and the Court ordered Plaintiff to rephrase the question. (Trial Tr. at 532:7-10.) Plaintiff did
refer to “the City of Chicago” in its rebuttal, but most of those references were to the City itself
and not to defense counsel personally. (Trial Tr. at 1161:15-25.) Plaintiff’s single rebuttal
reference to defense counsel as “the City,” (Trial Tr. at 1160:25-1161:5), was not in strict accord
with the Court’s in limine ruling, but the Court finds that it did not have a prejudicial impact on
the jury. Defendant cannot honestly expect the Court to believe that two improper references to
defense counsel as “the City” over the course of a seven-day trial, one of which Plaintiff was
instructed to rephrase, were prejudicial. The Court thus finds no basis to conclude that any
alleged violations of the Court’s in limine rulings provide grounds for a new trial.
II.
Evidentiary Rulings
Defendant also seeks a new trial based on certain evidentiary rulings. (R. 511, Def.’s
Mot. New Trial ¶¶ 12, 13, 15.) A party seeking a new trial based on erroneous evidentiary
rulings bears a “heavy burden.” Alverio v. Sam’s Warehouse Club, 253 F.3d 933, 942 (7th Cir.
2001). Even if an evidentiary ruling is erroneous, a new trial is warranted “only if the error had a
substantial influence over the jury, and the result reached was inconsistent with substantial
justice.” E.E.O.C. v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th Cir. 2012)
(quoting Farfaras, 433 F.3d at 564).
A.
The Schechter Memo
Defendant argues that the Schechter Memo, (Exs. 55, 56), should have been excluded.
(R. 524, Def.’s Mem. New Trial at 10.) Defendant argued this point unsuccessfully in a motion
in limine. (R. 404, Def.’s Mot. In Lim. No. 8; R. 497, Mar. 18 Tr. at 33:6-8 (denying the
motion).) Defendant also objected at trial to the introduction of the Schechter Memo into
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evidence, and the Court overruled that objection. (Trial Tr. at 763:21-764:15.) The Court ruled
that the Schechter Memo was admissible and relevant to Plaintiff’s claims of retaliatory
discharge and discrimination. (R. 497, Mar. 18 Tr. at 33:6-15; Trial Tr. at 764:2-15.) Defendant
has presented no reason for the Court to conclude that its two previous rulings on this point were
erroneous, and the Court declines to rehash that analysis for a third time.
Defendant additionally argues that even if the Schechter Memo was properly allowed,
only the redacted version should have been allowed pursuant to a ruling by Magistrate Judge
Valdez and because the document was protected by attorney-client privilege. (R. 524, Def.’s
Mem. New Trial at 10.) This position was argued in Chambers at a pretrial conference on March
18, 2013, and this Court declined to vacate Judge Valdez’s finding that the Memo had been
widely distributed throughout the City such that Defendant had waived its ability to claim
privilege. (R. 497, Mar. 18 Tr. at 38:18-39:3.) Defendant contends that the Court erroneously
allowed Plaintiff to rescind a January 2006 stipulation to use the redacted Memo. (R. 524, Def.’s
Mem. New Trial at 10-11.) In support, Defendant cites Graefenhain v. Pabst Brewing Co., in
which the Seventh Circuit held that “the district court has ‘broad discretion’ to decide whether to
hold a party to its stipulations.” 870 F.2d 1198, 1206 (7th Cir. 1989). At the March 18th pretrial
conference, the Court found that the waiver of privilege supported the use of the unredacted
Memo and held that Defendant’s arguments as to the unknown writer of the word “Phony” and
Serafin’s denials were pertinent to the weight of the evidence, not to its admissibility. (R. 497,
Mar. 18 Tr. at 33:9-17, 38:19-39:3.) The admission of this evidence was also proper because,
though prejudicial to the City, its probative value was not substantially outweighed by the danger
of unfair prejudice. Fed. R. Evid. 403. Defendant has presented no reason to find that the
admission of the unredacted Schechter Memo was erroneous.
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B.
DeBrock’s testimony
Defendant next argues that DeBrock should have been barred from testifying for the
reasons it set forth in its motion in limine and motion to reconsider. (R. 524, Def.’s Mem. New
Trial at 13.) Defendant argues that DeBrock’s testimony was irrelevant because Plaintiff could
not recover lost wages and was not entitled to lost pension benefits; that his testimony was
prejudicial because it misled the jury; and that his calculations were not the product of reliable
principles and methods. (Id. at 13-14.) Defendant made these same arguments in its motion in
limine, (R. 457, Def.’s Mot. in Lim. No. 6), which the Court denied in the pretrial conference, (R.
497, Mar. 18 Tr. at 47:12-24), and in its motion to reconsider that ruling, (R. 485, Def.’s Mot.
Reconsider re Def.’s Mot. in Lim. No. 6), which the Court also denied, (R. 488, Min. Entry). As
the Court stated in the pretrial conference, DeBrock had sufficient expertise as an economist to
testify as to lost pension benefits, and Defendant’s cross-examination of him was sufficient to
expose any inaccuracies in his calculations. (R. 497, Mar. 18 Tr. at 47:17-24.) To the extent that
the jury “heard calculations that were both inflated and incorrect,” as Defendant claims, (R. 524,
Def.’s Mem. New Trial at 14), it also heard Defendant’s rigorous cross-examination of DeBrock
as well as contradictory testimony from Defendant’s own pension expert, Jane Tessaro. Because
DeBrock satisfied the Daubert standards and presented testimony that was relevant to Plaintiff’s
damages, the Court finds no error its refusal to bar him from testifying.
C.
Allegedly falsified employment documents
Defendant argues that Plaintiff’s question to Drumgould as to whether he was “aware that
documents were falsified to justify employment decisions in the Department between the years
of 1998 until [he] retired in 2004” had no probative value because Plaintiff did not present any
evidence that the Department had falsified any personnel document related to him. (R. 524,
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Def.’s Mem. New Trial at 15-16.) Defendant similarly argued that such testimony would be
irrelevant and prejudicial in its motion in limine number 1, (R. 398, Def.’s Mot. in Lim. No. 1),
which the Court denied in part, specifically to allow this information to come in, because the
Court determined that testimony that employment documents had been falsified could be
particularly relevant to Plaintiff’s retaliatory discharge claims, (R. 497, Mar. 18 Tr. at 13:1114:5). Defendant cites no legal support for its conclusory argument that this probative evidence
should have been excluded. The Court still finds such testimony relevant, and Defendant’s
argument that such testimony was “prejudicial to the City,” (R. 537, Def.’s Reply New Trial at
27), does not signify that the testimony should have been excluded. See Fed. R. Evid. 403
(permitting the exclusion of evidence that is unfairly prejudicial).
The Court thus finds that its evidentiary rulings as to the Schechter Memo, DeBrock’s
testimony, and Drumgould’s testimony on falsified employment documents were not erroneous.
Additionally, even if the Court’s evidentiary rulings were erroneous, the Court does not find that
the jury’s verdict “was inconsistent with substantial justice,” and thus the evidentiary rulings
provide no basis upon which a new trial may be granted. See Mgmt. Hospitality of Racine, 666
F.3d at 440.
III.
Improper Impeachment
Defendant argues that Plaintiff failed to properly impeach any of its witnesses and instead
read portions of their prior testimony into the record even though that testimony “was not
inconsistent, was not impeaching, and/or was flagrantly mischaracterized.” (R. 524, Def.’s
Mem. New Trial at 14-15.) Defendant contends that this tactic was improper and prejudiced the
jury against the City and its witnesses. (Id. at 15.) Some of the examples Defendant cites were,
in fact, proper impeachment—Plaintiff illustrated that the witness had given a contrary answer
65
on a prior occasion when under oath. (See, e.g., Trial Tr. at 543:24-545:24, 555:7-556:24,
625:12-627:1, 766:9-767:20, 867:13-869:1.) Other times, Plaintiff’s impeachment efforts fell
short. (Id. at 574:9-575:10, 735:23-738:6, 741:20-743:16, 864:12-865:20.) Defendant fails,
however, to provide any legal support for its argument that improper impeachment is
justification for a new trial, (R. 524, Def.’s Mem. New Trial at 14-15), or any factual support for
its spurious claim that “Plaintiff secured a victory through gamesmanship rather than evidence,”
(R. 537, Def.’s Reply New Trial at 26). The Court finds no support for either of these
arguments.
The examples of improper impeachment Defendant cites were not calculated attempts at
“subterfuge to get before the jury evidence not otherwise admissible.” Taylor v. Nat’l R.R.
Passenger Corp., 920 F.2d 1372, 1376 (7th Cir. 1990) (quoting United States v. Webster, 734
F.2d 1191, 1192 (7th Cir. 1984)). They were simply failed attempts to undermine the credibility
of Defendant’s witnesses. Defendant provides no reason for the Court to find that these
inefficiencies prejudiced the jury against it except for Plaintiff’s argument in closing that certain
witnesses were “impeached over and over.” (R. 524, Def.’s Mem. New Trial at 15 (quoting Trial
Tr. at 1099:14-20).) Certain of Defendant’s witnesses were repeatedly impeached. (See, e.g.,
Trial Tr. at 867:13-869:5, 877:17-878:3 (Murphy), 544:7-545:24, 555:7-557:16, 574:11-575:14
(Hennessey).) Even if Plaintiff’s statement was inaccurate, however, “improper comments
during closing argument rarely rise to the level of reversible error.” Soltys v. Costello, 520 F.3d
737, 745 (7th Cir. 2008). The Court instructed the jury that attorney statements did not
constitute evidence, and counsel’s characterization of her attempts to impeach witnesses does not
provide grounds for a new trial.
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IV.
The Court’s Statement
Finally, Defendant argues that a statement the Court made when overruling one of the
City’s many objections was unduly influential on the jury. (R. 524, Def.’s Mem. New Trial at
16-17.) In support of its request for a new trial on this basis, Defendant quotes United States v.
Dellinger, 472 F.2d 340, 386 (7th Cir. 1972), which held that “[j]udicial comments in the
presence of the jury are subject to special scrutiny” and are less easily cured by cautionary
instructions. In Dellinger, the Seventh Circuit found that the trial judge exhibited a “deprecatory
and often antagonistic attitude toward the defense” in both remarks and actions throughout the
lengthy trial. Id. The judge’s “comments were often touched with sarcasm, implying rather than
saying outright that defense counsel was inept, bumptious, or untrustworthy, or that his case
lacked merit. . . . [C]umulatively, they must have telegraphed to the jury the judge’s contempt for
the defense.” Id. at 387.
Here, in contrast, Defendant complains about a single comment the Court made. (R. 524,
Def.’s Mem. New Trial at 16-17.) When Defendant objected to one of Plaintiff’s exhibits, the
Court asked Plaintiff how the document was relevant to the issues in the case. (Trial Tr. at
53:18-54:4.) Plaintiff responded: “That it shows that that was one of the functions of Chief
Timekeeper that he was fulfilling.” (Id. at 54:5-6.) The Court asked: “Okay. And this goes to
your issue of retaliation and pretext.” (Id. at 54:7-8.) Plaintiff responded that it did, and the
Court stated that it would overrule Defendant’s objection on that basis. (Id. at 9-11.)
Defendant’s argument that the Court’s clarifying comment “gave undue weight to the memos” in
the exhibit and that “[b]ased on the unsupported verdict on Plaintiff’s state law retaliatory
discharge claim, the jury heeded the Court’s words and found for Plaintiff on a claim that he
67
failed to prove,” is simply unfounded in any legal principle. The Court’s single clarifying
comment does not provide grounds for a new trial.
V.
Cumulative Effect of Errors
Defendant contends that even if the foregoing errors do not individually warrant a retrial,
their cumulative effect warrants a new trial. (R. 524, Def.’s Mem. New Trial at 17.) To prevail
on an argument that the cumulative effect of errors warrants a new trial, Defendant “must show:
(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial,
were so severe as to have rendered [its] trial fundamentally unfair.” Christmas v. City of Chi.,
682 F.3d 632, 643 (7th Cir. 2012) (quoting United States v. Powell, 652 F.3d 702, 706 (7th Cir.
2011)) (internal quotation marks omitted). In determining whether the alleged errors rendered
the trial “fundamentally unfair,” the Court must consider the nature and number of alleged errors,
“their interrelationship, if any,” and the efficacy of any curative measures. Id. (quoting Powell,
652 F.3d at 706).
The Court has thoroughly examined the trial record and has considered all of the errors
Defendant alleges individually and in combination. The Court concludes that sustaining the
meritorious objections Defendant made at trial and instructing the jury to disregard improper
testimony was sufficient to cure any errors. Defendant’s argument that the jury received a onesided picture, (R. 537, Def.’s Reply New Trial at 7), is disingenuous and is belied by the verdict
for Defendant on three of the four claims. Examining the trial record as a whole, the Court does
not find that the verdict “cries out to be overturned or shocks [the Court’s] conscience.” Latino,
58 F.3d at 315. Consequently, the Court DENIES Defendant’s motion for a new trial. Finding
no error that warrants a new trial or undermines the validity of the instant jury verdict, the Court
also denies Defendant’s request to reinstate the jury verdict from the first trial.
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DEFENDANT’S MOTION TO ALTER JUDGMENT
Finally, Defendant moves pursuant to Federal Rule of Civil Procedure 59 for remittitur
or, alternatively, for an evidentiary hearing as to damages. (R. 515, Def.’s Mot. Alter J.)
Defendant argues that the jury’s award is “monstrously excessive, has no rational basis in the
evidence, and drastically exceeds the compensatory damage awards in comparable cases.” (R.
516, Def.’s Mem. Alter J. at 1.) The jury was instructed that if it found for Plaintiff on his state
law retaliatory discharge claim, it must “fix the amount of money which will reasonably and
fairly compensate him for any of the following elements of damages proved by the evidence to
have resulted from the wrongful conduct of the Defendant[:] 1. The value of lost pension
benefits; and 2. Mental/emotional pain and suffering.” (R. 498, Jury Instructions at 34.) The
jury awarded Plaintiff two million dollars on his state law retaliatory discharge claim.
First, the Court must determine how much, if any, should be set off from the award.
Plaintiff stipulated that his pension expert, DeBrock, did not consider workers’ compensation
benefits in his analysis, and the parties agreed that the Court should set off Plaintiff’s workers’
compensation award from the award of any lost pension benefits. (R. 487, Pl.’s Mot.; Trial Tr. at
368:11-370:17, 512:7-13.) DeBrock testified that the present value of Plaintiff’s lost pension
benefits, assuming Plaintiff had retired at age 55, was $1.2 million. (Trial Tr. at 374:8-10.)
From the enormity of the jury award and the lack of any substantive evidence as to Plaintiff’s
compensatory damages except for DeBrock’s testimony about pension loss, the Court concludes
that the jury award included $1.2 million in compensation for Plaintiff’s pension loss. The Court
must now determine how much to set off.
Defendant first argues, however, that the Court should not allow Plaintiff to receive any
lost pension benefits because Plaintiff was judicially estopped from seeking lost pension
69
benefits. (R. 516, Def.’s Mem. Alter J. at 5-6.) In 2008, Judge Andersen found that Plaintiff was
judicially estopped from recovering back pay or front pay because he represented to the Illinois
Workers’ Compensation Commission that he was permanently and totally disabled as of
September 4, 2002, and could not work at any job from that date forward. (R. 223, Mem. Op. &
Order at 4.) The Illinois Workers’ Compensation Commission accepted Plaintiff’s position and
awarded him total and permanent disability benefits of $716.86 per week for life. (Id. at 2-4.)
Accordingly, Judge Andersen held that Plaintiff was barred from receiving back pay and front
pay to prevent him from being overcompensated for his disability. (Id. at 4.) Defendant argues
that Plaintiff is not entitled to any lost pension benefits because pension benefits are front pay.
(R. 516, Def.’s Mem. Alter J. at 5-6.) Defendant provides no legal support for this claim, and the
Court declines to take it at face value. Pension is not necessarily the same thing as front pay, and
in fact the case Defendant does cite distinguishes between front pay and front benefits such as
pension. Best v. Shell Oil Co., 4 F. Supp. 2d 770, 776 (N.D. Ill. 1998). Thus, the Court
concludes that Judge Andersen’s previous ruling does not estop Plaintiff from seeking lost
pension benefits.
Defendant next argues that Plaintiff was not entitled to lost pension benefits because he
withdrew all the money from his pension account in 2005. (R. 516, Def.’s Mem. Alter J. at 6.)
Defendant contends that if he had not withdrawn the money, he “would have been able to begin
collecting a pension in the amount of $2,091.00 per month beginning on July 28, 2009, at the age
of 55.” (Id.) Defendant thus argues that any injury Plaintiff suffered as a result of withdrawing
the money in his pension account was too remote and unforeseeable a consequence to have been
caused by his termination, and the City is not liable. (Id.) “A foreseeable intervening cause does
not break the chain of legal causation and to avoid liability, a defendant must show that the
70
intervening event was unforeseeable as a matter of law.” Calloway v. Bovis Lend Lease, Inc.,
995 N.E.2d 381, 406 (Ill. App. Ct. 1st Dist. Jan. 2014), appeal denied, 2014 WL 466522 (Ill. Jan.
29, 2014). The Court agrees with Defendant that, based on the size of the award, the jury
probably held the City accountable for the necessity Plaintiff testified he faced of withdrawing
money from his pension fund in order to pay his bills. (See R. 516, Def.’s Mem. Alter J. at 6. )
The jury was presented with Plaintiff’s testimony that he withdrew his entire pension
contribution because he needed that money, along with loans from relatives, in order to pay bills
after his termination. (Trial Tr. at 220:2-7, 353:1-8.) Defense counsel cross-examined Plaintiff
extensively about his pension contributions and account and his attempts to mitigate his pension
loss. (Trial Tr. at 347-352.) Defendant presented expert testimony by Tessaro about the
ramifications of Plaintiff’s withdrawal and argued in closing that it was Plaintiff’s fault he had
no pension benefits to rely on. (Trial Tr. at 1145:17-1146:19.) The jury was thus presented with
evidence on Plaintiff’s decision to withdraw his pension benefits, and it evidently determined
that Defendant was liable for his loss. The Court is not to disrupt the jury’s determination
without good cause, Richardson v. Chapman, 676 N.E.2d 621, 628 (Ill. 1997), and the Court
finds that Plaintiff was entitled to the lost pension benefits the jury awarded. The Court turns
now to the issue of the set-off.
Defendant contends, and presents evidence to support, that Plaintiff had received
$433,748.92 in workers’ compensation payments as of May 3, 2013. (R. 516, Def.’s Mem. Alter
J. at 13; R. 516, Ex. I, Comm. on Finance Payments.) Defendant also contends that, according to
Plaintiff’s life expectancy as projected by his expert, Professor DeBrock, Plaintiff will receive
$828,701.72 in future workers’ compensation payments. (R. 516, Def.’s Mem. Alter J. at 13.)
Thus, assuming the jury award of $2 million includes lost pension benefits, as Defendant argues,
71
the Court should set off the $1,262,450.64 Plaintiff will receive in workers’ compensation
benefits in lieu of pension benefits. (Id.) Plaintiff did not respond to Defendant’s instant motion
or provide any contradicting evidence, so the Court assumes that Plaintiff agrees with
Defendant’s offset figures and finds that he has waived any objection. The purpose of
compensatory damages is to compensate plaintiffs justly, not to award a windfall. Heldenbrand
v. Roadmaster Corp., 660 N.E.2d 1354, 1360 (Ill. App. Ct. 5th Dist. 1996). Allowing Plaintiff to
recover both pension benefits and lifetime workers’ compensation benefits would
overcompensate him. Accordingly, the Court finds it appropriate to offset the jury award by $1.2
million to avoid awarding Plaintiff a windfall.
Having set off the workers’ compensation payments, the Court examines whether the
remaining $800,000 representing non-pecuniary compensatory damages is excessive. Defendant
argues that it is excessive and requests the Court to either reduce the jury award to $15,000 or
less or “hold an evidentiary hearing to determine the actual value of Plaintiff’s purported lost
pension benefits.” (R. 516, Def.’s Mem. Alter J. at 13.) Because the Court determined that the
jury award included $1.2 million of Plaintiff’s purported lost pension benefits, and set off that
amount from the award, the Court does not need to hold an evidentiary hearing to determine the
value of the pension benefits.
The jury awarded Plaintiff damages only on his state law claim, so Illinois state law
governs Defendant’s motion for remittitur. Naeem v. McKesson Drug Co., 444 F.3d 593, 611
(7th Cir. 2006). Although courts in the Seventh Circuit typically compare a damages award with
damages awards in similar cases, Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 408
(7th Cir. 2010), as Defendant urges this Court to do, that is not the practice in Illinois courts,
Richardson, 676 N.E.2d at 628 (collecting cases). “The determination of damages is a question
72
reserved to the trier of fact, and a reviewing court will not lightly substitute its opinion for the
judgment rendered in the trial court.” Richardson, 676 N.E.2d at 628. In Illinois, “all the law
requires is that the evidence tend to establish, with a fair degree of probability, a basis for the
assessment of damages.” F.L. Walz, Inc. v. Hobart Corp., 586 N.E.2d 1314, 1319 (Ill. App. Ct.
3d Dist. 1992). It is appropriate, however, to reduce an award to prevent a departure from the
evidence presented at trial. Richardson, 676 N.E.2d at 628. “An award of damages will be
deemed excessive if it falls outside the range of fair and reasonable compensation or results from
passion or prejudice, or if it is so large that it shocks the judicial conscience.” Id. (citing Richter
v. Nw. Mem’l Hosp., 532 N.E.2d 269 (1988)). If the court finds the award to be excessive, it
may order a remittitur with the plaintiff’s consent; if the plaintiff does not consent, the court
must order a new trial to be held on damages. Best v. Taylor Mach. Works, 689 N.E.2d 1057,
1080 (Ill. 1997).
Having removed loss of pension from the equation, the jury award consisted solely of
damages for pain and suffering. When asked how it made him feel to have to withdraw money
from his pension in order to pay bills, Plaintiff stated, “Not too good. I mean I lost my pension.”
(Trial Tr. at 220:9.) He further testified that he was barely able to support himself and that he
had to borrow money from relatives in order to make ends meet. (Trial Tr. at 219:4-17.)
Plaintiff testified that he did not discuss his termination or how it made him feel with his wife or
with any clergy or mental health professional. (Trial Tr. at 353:22-354:8.) Although Plaintiff
tried to present a stoic front, the evidence presented at trial clearly demonstrated that he suffered
mental and emotional distress from the retaliatory discharge, which began when he was demoted
at work. (See Trial Tr. at 99:14-23.) For example, when Plaintiff was ordered to take a leave of
absence in December of 2000, he put off telling his wife until after Christmas because he “didn't
73
want to ruin her Christmas.” (Trial Tr. at 99:17-23.) Additionally, Plaintiff testified that he
could not afford not to work because he needed the money for his house payments and his
children’s schooling. (Trial Tr. at 211:21-212:1.) Such evidence is proof that Defendant’s
mistreatment caused Plaintiff mental and emotional pain and suffering, for which the jury
awarded compensatory damages.
While the Court sympathizes with the emotional distress Plaintiff must have felt after
being terminated, however, the evidence presented at trial was insufficient to support an award of
$800,000. “There is no exact standard for setting the damages to be awarded on account of pain
and suffering,” but the damages must be fair and reasonable. (R. 498, Jury Instructions at 36);
see Richardson, 676 N.E.2d at 628. Consequently, the Court concludes that the jury award is
excessive and finds it appropriate to reduce the award to $400,000. “The purpose of
compensatory damages is to compensate the plaintiff for damages sustained, not to punish the
defendant or to award a windfall to the plaintiff.” Heldenbrand, 660 N.E.2d at 1360. This Court
has great respect for the work of juries in general, and this jury specifically, and has only rarely
modified a jury verdict in nearly twenty years of judicial service. Yet because damages for
emotional pain and suffering must be reasonable, the Court is compelled to enter this substantial
remittitur. The Court concludes that a $400,000 award is not punitive or excessive given the
evidence presented at trial and remains as faithful to the jury’s original award as the Court can in
good conscience. If Plaintiff refuses to accept the remittitur, the Court will hold an evidentiary
hearing as to damages.
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CONCLUSION
For the reasons set forth above, Defendant’s motion to issue findings of fact and
conclusions of law (R. 521) is GRANTED; Plaintiff’s motion to partially vacate Judgment (R.
503) is DENIED; Defendant’s renewed motion for judgment as a matter of law (R. 508) is
DENIED; Defendant’s motion for a new trial or to reinstate the first jury verdict (R. 511) is
DENIED; and Defendant’s motion for remittitur or for an evidentiary hearing as to damages (R.
515) is GRANTED. The Court hopes that with these rulings, this ten-year-old case, which has
gone on for far too long, will finally be put to rest.
ENTERED:
Chief Judge Rubén Castillo
United States District Court
Dated: March 31, 2014
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