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.
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.
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 ...