United States District Court, N.D. Illinois, Eastern Division
August 30, 2005.
CARL E. THOMAS, Plaintiff,
GUARDSMARK, INC., Defendant.
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Carl Thomas ("Thomas"), a security guard, sued Guardsmark, Inc.
("Guardsmark") for wrongful termination in violation of public
policy. Thomas claimed Guardsmark terminated his employment
because of statements he made during a November 2001 television
interview. Jury trial commenced on July 7, 2005. On July 13,
2005, the jury returned a $78,001 verdict in Thomas' favor. Dkt.
Nos. 87, 89. Guardsmark's oral motion for judgment as a matter of
law, made at the close of Thomas' case, was denied.*fn1
See Tr. 207, 209-11, 242-44. Guardsmark's renewed motion for
judgment as a matter of law, filed without leave of court, was
stricken. Dkt. No. 89; Tr. 400. Judgment was entered on July 15,
2005. Dkt. No. 90. Before the court are Guardsmark's motions: (1)
for judgment as a matter of law; (2) for a new trial; and (3) to
alter or amend the judgment. DISCUSSION
I. Motion for Judgment as a Matter of Law
Guardsmark moves for judgment as a matter of law pursuant to
Fed.R.Civ.P. 50(b). When considering a motion for judgment as
a matter of law following a jury verdict, the court does not
reweigh the evidence presented at trial or make credibility
determinations. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Instead, considering the totality of the
evidence, the court must determine whether any rational jury
could have found for Thomas. Harvey v. Office of Banks & Real
Estate, 377 F.3d 698, 707 (7th Cir. 2004). The court may grant
judgment as a matter of law if, drawing all reasonable inferences
in Thomas' favor, there was "no legally sufficient evidentiary
basis for a reasonable jury to find for [Thomas]." Reeves,
530 U.S. at 150. When the case turns on the credibility of witnesses,
the movant faces a "herculean burden." Ciesielski v. Hooters
Mgmt. Corp., No. 03 C 1175, 2004 U.S. Dist. LEXIS 25884, *3
(N.D. Ill. Dec. 27, 2004), quoting Gile v. United Air Lines,
213 F.3d 365, 372 (7th Cir. 2000).
Guardsmark contends the jury had no legally sufficient
evidentiary basis to find for Thomas on his retaliatory discharge
claim because: (1) Thomas did not prove his termination
contravened a clearly mandated public policy; and (2) Guardsmark
stated a non-pretextual, non-discriminatory reason for the
discharge. Further, Guardsmark argues Thomas presented
insufficient evidence to support a punitive damages award.
Finally, Guardsmark asserts judgment should be entered in its
favor because the United States Bankruptcy Court has reopened
Thomas' 2004 bankruptcy case and judicial estoppel bars his
claim. A. Public Policy
Guardsmark argues Thomas failed to establish his termination
violated a clearly mandated public policy. Specifically,
Guardsmark contends Thomas' termination did not violate public
policy as mandated by the Private Detective, Private Alarm,
Private Security and Locksmith Act of 1993, 225 ILCS 446/1 et
seq. (the "Private Detective Act"), or the Illinois
Whistleblower Act, 740 ILCS 174/1 et seq.
In an effort to define public policy, the Illinois Supreme
Court has stated: "[t]here is no precise definition of the term.
It can be said that public policy concerns what is right and just
and what affects the citizens of the State collectively. It is to
be found in the State's Constitution and statutes and, when they
are silent, in its judicial decisions." Palmateer v. Int'l
Harvester Co., 85 Ill.2d 124, 421 N.E.2d 876, 878 (1981).
Guardsmark's contention that Thomas needed to present evidence to
the jury to prove his termination violated public policy must be
rejected. Whether public policy is implicated by a defendant's
actions is not a jury question. This court previously ruled that
terminating Thomas for his conduct publicly disclosing a
convicted felon's employment as a security guard implicates
clearly mandated public policy under the Private Detective Act.
See Thomas v. Guardsmark, No. 02 C 8848, 2003 U.S. Dist. LEXIS,
*6-8 (N.D. Ill. Jan. 6, 2003). Guardsmark's argument that the
Private Detective Act prohibits Thomas' disclosure of information
acquired during his employment was explicitly rejected:
Guardsmark responds that the Act evidences a public
policy against Thomas' disclosure of information to
the media . . . Guardsmark interprets this section to
prohibit any disclosure of wrongdoing. This
interpretation is too broad. Thomas reported that
Guardsmark employed a self-proclaimed convicted felon
as a security guard. The Act declares this violation
`inimical to the public welfare and . . .
constitute[s] a public nuisance.' Reports of activity
that impinge on public welfare or safety are easily
and readily accepted as furthering public policy,
whether or not the activity is criminal. Thus, Thomas states a claim
and alleges a clearly mandated public policy that was
violated by his discharge.
Id. (internal citations omitted). Moreover, on summary judgment
the court reiterated that Thomas' public interview regarding
public safety constituted protected conduct. See Thomas v.
Guardsmark, No. 02 C 9948, 2005 U.S. Dist. LEXIS 7407, *21-22
(N.D. Ill. Mar. 16, 2005). Finally, Guardsmark's argument that
Thomas failed to establish a violation of public policy mandated
by the Illinois Whistleblower Act is irrelevant. Thomas did not
assert an Illinois Whistleblower Act claim.
B. Non-Pretextual Reason for Discharge
Guardsmark argues Thomas failed to prove his retaliation claim
because Guardsmark stated a non-pretextual, non-discriminatory
reason for Thomas' discharge violations of company policy and
an employee may be terminated for any lawful reason. Whether or
not routine Title VII jurisprudence is applicable to an Illinois
retaliatory discharge case brought in federal court, Guardsmark
apparently refuses to entertain the possibility that the jury did
not believe its proffered reason for termination and instead
determined Guardsmark's stated reason was pretextual. Sufficient
evidence regarding the reasons for and timing of termination,
particularly through cross-examination of Guardsmark witness
Edward Healy, see Tr. 220-325, provides an evidentiary basis
for the jury to disbelieve Guardsmark's stated reasons for
termination and to instead find Thomas' termination was
retaliatory. Guardsmark's proffer of a non-discriminatory reason
is insufficient to escape liability if a jury determines the
proffered reason is a pretext for unlawful activity. In essence,
the jury made credibility assessments to determine Thomas'
termination was retaliatory. Considering the totality of the
evidence and viewing that evidence in Thomas' favor, Guardsmark
has not met its herculean burden to overturn that decision. See Ciesielski,
2004 U.S. Dist. LEXIS 25884 at *3.
C. Punitive Damages
Guardsmark contends the jury's $50,000 punitive damages award
is unsupported by the evidence. Specifically, Guardsmark asserts
Thomas offered no evidence that Guardsmark's termination of his
employment involved "fraud, actual malice, deliberate violence or
oppression, willfulness, or gross negligence" or "willful and
wanton" conduct to support the award. Mot. at 9 (citation
omitted). Instead, Guardsmark maintains the evidence established
the absence of willful or wanton conduct because:
1. Mr. Healy testified that Guardsmark's
investigation determined that Thomas did not inform
anyone at Guardsmark that Mr. Kubera had a criminal
2. He testified that he did not fill out an internal
"301" termination form for Thomas not because of any
malice, but because the post 9/11 time was "chaotic"
and "it wasn't high on the priority list and it
didn't get done;"
3. He testified that he did not write Thomas
regarding his termination because he "was aware that
Mr. Thomas was receiving unemployment benefits and
[he] just didn't feel it was necessary;" and
4. Ms. Martin testified that Guardsmark's offices,
including the Chicago office, fell behind on their
paperwork all across the country.
Id. (citations omitted). Nevertheless, drawing all inferences
in Thomas' favor, the jury could reasonably have determined: (1)
Mr. Healy conducted a sham investigation; (2) Guardsmark lied to
Thomas that it would inform him of the investigation's results;
(3) Guardsmark intentionally suspended Thomas, rather than
terminating him immediately, to prevent Thomas from knowing he
had a retaliatory discharge claim until the employment
agreement's limitations period expired; and (4) Guardsmark
imposed additional hardships on Thomas by opposing his first
unemployment insurance claim and denying him his 401(k) funds.
See e.g., Tr. 220, 263-81 (stipulations and testimony regarding investigation); Tr. 70-71, 73-77, 219-21,
285, 315 and PX 3 (stipulations and testimony that Thomas was not
told of the termination decision and Decker letter that Thomas
would be notified when investigation was complete); Tr. 220-23,
315, 350 (stipulations and testimony that other employees were
not indefinitely suspended, there was no other investigation
where the employee was uninformed of the result, and that typical
internal procedures for termination were not followed); Tr.
69-70, 77-78, 315-21 and PX 3 (testimony regarding 401K,
unemployment insurance application and Decker letter that Thomas
would be notified when investigation was complete). There was a
sufficient evidentiary basis for the jury to find for Thomas on
his punitive damages claim.
D. Bankruptcy Case
Guardsmark argues Thomas did not properly schedule his federal
lawsuit against Guardsmark in his 2003 and 2004 bankruptcy
filings and that judicial estoppel bars his retaliatory discharge
claim. This court has twice rejected Guardsmark's argument. See
Thomas v. Guardsmark, 02 C 8848, 2005 U.S. Dist. LEXIS 14170
(N.D. Ill. July 7, 2005) (denying Guardsmark's emergency motion
to dismiss, filed two days before trial); Dkt. No. 82-1 (denying
Guardsmark's motion for reconsideration). The court will not
re-hash the arguments made in Guardsmark's prior motions or the
bases for rejecting those arguments. The only changed
circumstance since Guardsmark's prior motions on this issue the
United States Bankruptcy Court's subsequent reopening of Thomas'
2004 bankruptcy case has no bearing on this court's decisions.
Guardsmark's arguments are rejected for the third time. E. Conclusion
The jury's verdict in Thomas' favor was supported by a
sufficient evidentiary basis. Guardsmark's motion for judgment as
a matter of law must be denied.
II. Motion for a New Trial
A party seeking a new trial based on evidentiary errors faces a
heavy burden. See Van Stan v. Fancy Colours & Co.,
125 F.3d 563, 570 (7th Cir. 1997). To justify a new trial, there must be a
substantial showing that the evidentiary error likely affected
the trial outcome. Id. Further, Fed.R.Civ.P. 61 provides:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or
order or in anything done or omitted by the court or
by any of the parties is ground for granting a new
trial or for setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not
affect the substantial rights of the parties.
Guardsmark moves for a new trial because the court improperly:
(1) excluded eight of Guardsmark's proposed jury instructions;
(2) excluded two of Guardsmark's exhibits; and (3) prohibited
Guardsmark from impeaching Thomas' testimony. In addition,
Guardsmark argues a new trial is warranted because the back pay
award was against the weight of the evidence.
A. Jury Instructions
Guardsmark contends the court improperly excluded a back pay
instruction and proposed jury instructions 1, 2, 5, 6, 7, 8, 10.
For several instructions, Guardsmark merely recites the proposed
instruction and either states that "the failure to give the
instruction was error," or provides a cursory statement, without
legal authority, that the failure to give the instruction
permitted the jury to consider matters the instruction would have
prohibited. See Mot. at 2-7 (Instructions 1, 5, 6, 7, 8, 10 and back pay instruction). Moreover, Guardsmark's failure to:
(1) compare the refused instructions with the instructions given;
(2) enunciate how its proposed instructions were superior to
those given; (3) show that the instructions given were incomplete
or inaccurate; or (4) demonstrate how the error was prejudicial,
warrants denial of the motion. See Boyd v. Illinois State
Police, 384 F.3d 888, 894 (7th Cir. 2004) (movant must show both
that the instructions did not adequately state the law and that
the error was prejudicial because the jury was likely to be
confused or misled); Mayall v. Peabody Coal Co., 7 F.3d 570,
573 (7th Cir. 1993) (new trial not warranted if instructions as a
whole were sufficient to inform the jury of the applicable law);
Emmel v. Coca-Cola Bottling Co., 904 F. Supp. 723, 742 (N.D.
Ill. 1995), aff'd, 95 F.3d 627 (7th Cir. 1996) ("since
defendant makes no claim that the jury instructions, taken as a
whole, were deficient, defendant's objection as a general matter
should be overruled on this point").
It is worth noting that Guardsmark's objection regarding
Instruction 8, punitive damages, is particularly disingenuous.
Guardsmark asserts the failure to give the proposed instruction
was erroneous because it permitted the jury to award punitive
damages even if it found that Guardsmark's conduct was not
"malicious." The following discussion occurred at the jury
Mr. Howe: Defendant's 8 is the punitive damage instruction. And we
request that the Court consider an instruction which we
believe is a proper statement of the law that the Court
should instruct the jury to find Guardsmark liable for
punitive damages if it's conduct was malicious.
The Court: Now, we're going back in history because I am giving the
Seventh Circuit pattern instruction.
Mr. Howe: Your Honor, this is a state law case and state law
governs, and our language is modified between the IPI
and the Seventh Circuit. The Court: Yes, but malice can include reckless disregard of a
person's rights and that's the language . . . the
plaintiff uses. It's ironic, both sides cite the Seventh
Circuit pattern instructions. Is there anything about
malice in the Seventh Circuit pattern instructions?
Mr. Howe: Your Honor, as to that, we were drawing off the IPI. The
IPI language is actually "willful and wanton." And we
believe that's substantially equivalent to malicious. We
have no problem giving "willful and wanton," but we
believe that's the proper statement of Illinois law
The Court: Any objection to inserting "willful and wanton" before
Mr. Huizenga: We have no objection to that.
The Court: Okay. So the second paragraph, as modified, plaintiff's
instruction would read: ". . . you may assess punitive
damages only if you find that the conduct of Guardsmark's
managerial employees was willful and wanton and in
reckless disregard of Mr. Thomas' rights . . ."
Mr. Huizenga: That's fine.
Mr. Howe: Thank you, your Honor.
Tr. at 386-87 (emphasis added). Given Guardsmark's
representations that it considered "willful and wanton" to be
substantially similar to "malicious," and that it had "no
problem" with "willful and wanton," Guardsmark's objection to the
absence of the term "malicious" in the punitive damages
instruction rings hollow.
Guardsmark argues a new trial is warranted because the court
did not admit Guardsmark's exhibits 6 and 7 into evidence.
Guardsmark contends exhibits 6 and 7, letters Thomas wrote to
Guardsmark in June 2004, were relevant to its trial defense that
Thomas was terminated for not reporting protection problems to his supervisor. Exhibits 6 and 7
were excluded on relevancy grounds. See Tr. at 110-13.
Moreover, to the extent Guardsmark implies the letters
demonstrate Thomas never put his complaints regarding Kubera's
criminal record in writing, the omission of the exhibits is
harmless because Guardsmark elicited that information from Thomas
on cross-examination. See Tr. 110-14. Guardsmark fails to make
any showing that the exclusion of the letters affected its
substantial rights. See Fed.R.Civ.P. 61. Refusal to grant a
new trial because the exhibits were excluded is not remotely
inconsistent with substantial justice. Id.
Guardsmark contends a new trial should be granted because it
was precluded from impeaching three aspects of Thomas' testimony.
First, Guardsmark argues the court should have allowed the
testimony of Virginia Garcia of the Chicago Police Department to
impeach his testimony that he worked for the police department.
Guardsmark asserts Thomas' conflicting testimony about working
for the police department affects his credibility. The court
clearly indicated its intention to permit Garcia's testimony, but
Guardsmark failed to produce this witness before the close of its
case. More importantly, Thomas was willing to stipulate that he
had not worked for the Chicago Police Department. See Tr. at
360-63. The following stipulation was read to the jury: "Carl
Thomas was a police officer at Union Train Station in Chicago but
never worked for the Chicago Police Department." Id. at 363.
Any alleged error by excluding Garcia's testimony was harmless.
Second, Guardsmark asserts it was precluded from impeaching
Thomas' testimony that he resigned from the Chicago Police
Department in 1991 for medical reasons when he in fact "did not
leave his employment during this time period for health reasons."
Mot. at 8. Guardsmark does not bother to identify a single
sustained objection or piece of excluded evidence that restrained
its impeachment abilities. In any event, the reasons for Thomas'
resignation were irrelevant to trial. Guardsmark attaches an
opinion from another judge in this district purportedly stating
the reasons why Thomas left his job. Mot. at Ex. A, Thomas v.
Metra Rail Serv., 941 F. Supp. 758 (N.D. Ill. 1996) (Norgle,
J.). The opinion is irrelevant, of questionable admissibility and
was not offered at trial.
Finally, Guardsmark argues the court erroneously prevented
Guardsmark from impeaching Thomas' testimony that he was married
to Patricia Thomas on September 12, 1998, when he was still
married to his first wife on that date. Again, Guardsmark does
not identify a single sustained objection or piece of excluded
evidence that restrained its impeachment abilities. Moreover, the
attached documents relating to Thomas' divorce from his first
wife are irrelevant and of no probative value. Guardsmark fails
to demonstrate how the alleged errors warrant a new trial or
affect substantial rights.
D. Back Pay Award
In a cursory, two paragraph argument, Guardsmark contends a new
trial is warranted because the jury's $28,000 back pay award was
against the weight of the evidence. Specifically, Guardsmark
asserts multiplying Thomas' $8.50 hourly wage by his 46 weeks of
unemployment only equals $15,640. Further, Guardsmark argues the
evidence established Thomas made no efforts to find employment
while out of work and failed to mitigate his damages.
"Unless the amount of the jury award is `monstrously excessive'
or bears no rational connection to the evidence, this court will
not disturb the jury's damage calculation." Bennett v. Smith,
No. 96 C 2422, 2000 U.S. Dist. LEXIS 18253, *20-21 (N.D. Ill.
Dec. 18, 2000), citing Cygnar v. City of Chicago, 865 F.2d 827,
847 (7th Cir. 1989), Hamilton v. Svatik, 779 F.2d 383, 388 (7th Cir. 1985) ("A jury's damage award should not be disturbed
so long as it is not `so large as to shock the conscience of the
court'"). Guardsmark oversimplifies the back pay calculations by
relying solely on Thomas' hourly wage without any consideration
of the number of hours Thomas actually worked, the amount of
money Thomas made in the months prior to his termination, Thomas'
W-2 form (Pl. Ex. 15), or the difference in pay Thomas received
between Guardsmark and his new job at Intertech. The jury's
verdict bears a rational connection to the evidence.
Guardsmark fails to demonstrate that the alleged errors
affected its substantial rights or that refusal to grant a new
trial is inconsistent with substantial justice. See Rule 61.
The motion for a new trial must be denied.
III. Motion to Alter or Amend Judgment
Pursuant to Rule 59(e), Guardsmark moves to alter or amend
Thomas' judgment to reduce his back pay award by $10,959 in
unemployment benefits he received and to provide that judgment is
entered in favor of Thomas' reopened bankruptcy estate.
Thomas received unemployment insurance benefits from the
Illinois Department of Employment Security for nine months during
the period of time for which back pay was awarded. In ruling on
Thomas' motion in limine to exclude from trial the amount of
unemployment benefits he received, the court held the amount of
Thomas' unemployment benefits was irrelevant to the jury issues,
but that unemployment benefits remained subject to consideration
by the court in the event of a jury award. See 6/21/05 Mem. Op.
and Order, Dkt. No. 71-1 at 5-6. While the decision to offset a
back pay award by the amount awarded for unemployment
compensation is within the court's discretion, many courts have
refused to permit offsets on the grounds that unemployment compensation is separate and collateral from the amount a
wrongdoer-employer owes the employee. See e.g., Perry v.
Larson, 794 F.2d 279, 285-86 (7th Cir. 1986) ("unemployment
compensation is a source of funds independent of the transaction
giving rise to the claim and thus is collateral . . . [defendant]
cannot benefit simply because the state has provided a means of
helping those who are out of work, justly or unjustly"); Tzoumis
v. Tempel Steel Co., 168 F. Supp. 2d 871, 874 (N.D. Ill. 2001)
("the windfall of unemployment benefits is best conferred upon
the employee/claimant rather than the employer (as a damages
offset)"); Steck v. Bimba Manufacturing Co., No. 96 C 7442,
1997 U.S. Dist. LEXIS 17112, * 5-6 (N.D. Ill. Oct. 29, 1997)
(same). Although any windfall of unemployment benefits is
generally conferred upon the employee/claimant, Guardsmark
contends Thomas should not receive a windfall because: (1) he did
not seek employment during the time he received unemployment
benefits; and (2) he allegedly lied on his benefits application
when he stated he was constructively discharged if, as he
testified, he did not know he was terminated.
Preliminarily, despite Guardsmark's characterization of the
evidence, the trial evidence included Thomas' testimony that he
submitted his job application at the Illinois Department of
Employment Security office via computer on several occasions,
see Tr. 156-59, and the fact that his application stated
"constructive discharge suspended since Nov. 16, 2001 pending
investigation." See Def. Ex. 10. In any event, Guardsmark's
concern that Thomas be prevented from receiving a windfall is
addressed by Illinois law. A back pay award for time during which
the employee received unemployment benefits must be jointly
payable to the claimant and to the Director of the Department of
Employment Security of the State of Illinois. See
820 ILCS 405/900(D). The statute essentially eliminates any concern that
Thomas will receive a windfall. Nor has Guardsmark established
that it is entitled to an offset based on collateral benefits
paid to Thomas by the State of Illinois. To the extent Guardsmark implies it should receive an offset because
employers contribute to the unemployment insurance fund, this
argument has been rejected. See Perry, 794 F.2d at 286, n. 3.
The motion to amend the judgment to offset the back pay award
must be denied.
Similarly, Guardsmark's motion to amend the judgment in favor
of Thomas' bankruptcy estate must be denied. This court twice
held that Thomas adequately disclosed his retaliation lawsuit in
his 2004 bankruptcy and there was no evidence that he wilfully
misrepresented the value of his claim to the trustee. See Thomas
v. Guardsmark, 02 C 8848, 2005 U.S. Dist. LEXIS 14170 (N.D. Ill.
July 7, 2005); Dkt. No. 82-1. Further, the court determined the
bankruptcy trustee abandoned the claim. Id. Although Guardsmark
made the bankruptcy trustee aware of Thomas' lawsuit before
trial, see Dkt. No. 75-1, Guardsmark Emergency Mot. at 10, n.
7, the trustee did not attempt to intervene or press an estate
claim. Instead, the trustee filed a motion with the bankruptcy
court on July 7, 2005 to re-open the bankruptcy case, appeared
before the bankruptcy judge on July 13, 2005, and obtained an
order re-opening the case dated July 19, 2005. See Guardsmark
Mot. at Ex. G, Thomas Resp. to Guardsmark's Mot. for Jud. as
Matter of Law at 13 and Ex. E. The fact that the bankruptcy court
re-opened the case apparently without knowledge of this court's
orders and without notice to Thomas does not affect this
court's rulings or the jury's verdict, which was rendered in
Thomas' favor before the bankruptcy case was re-opened. CONCLUSION
For the foregoing reasons, Guardsmark's motions for judgment as
a matter of law, for a new trial and to alter or amend the
judgment are denied.
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