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August 30, 2005.

CARL E. THOMAS, Plaintiff,
GUARDSMARK, INC., Defendant.

The opinion of the court was delivered by: SUZANNE CONLON, District Judge


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 record;
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 ...

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