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Cipolla v. Village of Oak Lawn

Court of Appeals of Illinois, First District, Third Division

January 14, 2015

DIANE CIPOLLA, Plaintiff-Appellant,
THE VILLAGE OF OAK LAWN, Defendant-Appellee

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 11 L 1673. The Honorable Thomas R. Mulroy, Judge, presiding.



In an action alleging that plaintiff, who had worked for defendant village for 12 years and was nearly 60 years old, was terminated from her position as a result of age discrimination, the jury's verdict for the village was upheld on appeal, over plaintiff's arguments that the trial court erred in failing to clarify the meaning of " fired," that defense counsel made improper remarks during closing argument, that a " cat's paw" instruction should have been given, that the village should not have been allowed to present witnesses who denied that comments were made about plaintiff's age during a closed meeting of the village board, that the village was improperly allowed to present evidence about the million dollar business plaintiff's husband ran and that the verdict was against the manifest weight of the evidence.

FOR PLAINTIFF-APPELLANT: Dana L. Kurtz, Esq., Heidi Karr Sleper, Esq., Kurtz Law Offices, Ltd., Hinsdale, Illinois.

FOR DEFENDANTS-APPELLEES: Jennifer Turiello, Peterson, Johnson & Murray-Chicago, LLC, Chicago, IL.

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.


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[¶1] The village manager of Oak Lawn told Diane Cipolla, a 12-year employee just shy of her sixtieth birthday, that her position was being terminated to help close a budget gap that exceeded $1 million. But Cipolla believes the real reason was her age and claims her supervisor was heard commenting on her age during a closed meeting of the village board of trustees only one day before the termination. Cipolla sued the village alleging age discrimination in violation of the Illinois Human Rights Act (775 ILCS 5/1-102(A) (West 2012)). After a four-day trial, the judge instructed the jurors and gave them two special interrogatories asking: (1) whether the non-discriminatory reason the village gave for terminating Cipolla's employment ( i.e., budget) was a pretext, and (2) whether the village fired Cipolla because of her age. During deliberations, the jury submitted a note to the judge asking whether the term " fired" includes laid off, terminated, or eliminated. After conferring with counsel, the judge decided not to answer the question and instead instructed the jurors to " resolve your question by continuing to review said facts and by reference to the jury instructions." The jury returned a verdict in favor of the village. After the trial court denied her motion for a new trial, Cipolla appealed.

[¶2] Cipolla argues the jury's verdict should be reversed and the case remanded for a new trial because: (1) the trial court abused its discretion by refusing to clarify for the jury the meaning of the word " fired" ; (2) defense counsel made improper, prejudicial remarks during closing argument; (3) the jury should have been given a " cat's paw" liability instruction; (4) the village should not have been permitted to present witnesses who denied the comment about Cipolla's age had been made during the closed board meeting while also maintaining executive privilege over an audiotape of the meeting; (5) the trial court erred in permitting the village to present irrelevant evidence about her husband's business; and (6) the jury's verdict was against the manifest weight of the evidence.

[¶3] We affirm. The jury's request for clarification on the meaning of the word " fired" presented a factual issue, and the trial court did not err in refusing to answer it. Further, the court's evidentiary rulings and jury instructions were not grounds for a new trial, defense counsel's comments during closing arguments were not prejudicial, and the jury's verdict was not against the manifest weight of the evidence.

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[¶5] Diane Cipolla began working as the business regulation officer in the Village of Oak Lawn's finance department in 1996. On April 11, 2008, Cipolla met with village manager Larry Deetjen, Brian Hanigan, the village's director of finance and Cipolla's supervisor, and Dan Omiecinski, the village's human resource director. Deetjen told Cipolla that her job was being eliminated or automated due to budget constraints. Cipolla was placed on administrative leave and continued to receive full pay and benefits until April 23, 2008, when her employment was officially terminated. On April 22, 2008, the village board of trustees approved amendments to the village's 2008 budget, which included the elimination of Cipolla's position, as well as three firefighter positions.

[¶6] Cipolla contends that on April 10, 2008, the day before she was terminated, the village board met in a closed executive session and, while discussing reorganization and staff cuts, her supervisor, Brian Hanigan, commented that Cipolla was " older." Cipolla also asserts that although she was told her position was being eliminated or automated, her job responsibilities were transferred to Deanne Adasiak, another village employee who was 20 years her junior. Cipolla contends that budget constraints were only a pretext for her termination, because not long after, the village hired a budget director for a salary in excess of $80,000, gave many of its finance department employees raises, and continued to hire new employees.

[¶7] Cipolla filed a charge of age discrimination with the Illinois Department of Human Rights, which dismissed the charge on November 10, 2010. Cipolla then filed a complaint in the circuit court of Cook County on February 14, 2011 (which was amended on March 20, 2012), alleging she was fired because of her age in violation of the Illinois Human Rights Act (Act) (775 ILCS 5/1-102 et seq. (West 2012)). Section 1-102(A) of the Act provides, in relevant part, that " It is the public policy of this State *** [t]o secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her *** age ***." 775 ILCS 5/1-102(A) (West 2012). The village filed an answer denying all of Cipolla's allegations and an affirmative defense asserting that Cipolla could not establish a prima facie case of age discrimination because no other similarly situated younger employees were treated differently and the village never sought a replacement for her position. The village contended Cipolla was terminated for budgetary reasons, because it had a deficit of more than $1 million that it decided to alleviate by cutting personnel costs.

[¶8] During pretrial discovery, Cipolla asked the village to produce the audiotape from the executive session of the village board, but the village refused, arguing it was privileged under the Illinois Open Meetings Act (5 ILCS 120/1 et seq. (West 2012)). Cipolla then filed a motion to compel the village to produce the audiotape, or alternatively, to bar the village from denying that Hanigan made statements about Cipolla's age during that meeting. In support of her motion, Cipolla contended that because budgetary decisions were purportedly made during the executive session, it was not a properly closed meeting and thus the exception to disclosure under the Open Meetings Act was inapplicable. Cipolla also argued she had a particularized need for the audiotape because board members who were at the meeting presented conflicting deposition testimony as to whether Hanigan commented about her age and discovery of the truth weighed in favor of compelling the village to produce the audiotape. Cipolla alternatively asked

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the trial court to inspect the audiotape in camera to determine whether anything related to her age was said during the executive session.

[¶9] After argument, the trial court ordered the village to submit the audiotape and a verified transcript for in camera review. After reviewing the tape and the transcript, the trial court denied Cipolla's motion. The trial judge said that the transcript indicated that a male speaker mentioned Cipolla's name twice during the executive session and that after listening to the tape, which was difficult to understand, he was able to determine that nothing was said regarding Cipolla's termination, her age, or anything else relevant to the case. The court also denied Cipolla's later motion to have the audiotape inspected by a forensics recording expert to determine if it had been edited, altered, or otherwise not properly preserved, because the court found no evidence that the recording's integrity had been compromised.

[¶10] Before trial, Cipolla filed a motion in limine to bar the village from presenting testimony denying that Hanigan made statements about her age during the executive session or, in the alternative, to bar testimony relating to the tape. The trial court's ruling on that motion is not in the record, but it appears from the trial transcript that the motion was denied, at least in part, because the village presented several witnesses at trial who testified that Hanigan did not make any comments about Cipolla's age during the executive session.

[¶11] The evidence at trial showed that on April 10, 2008, the day before Cipolla was terminated, the village's board of trustees met in executive session to discuss budget amendments. The village had a budget deficit of about $1.4 million and the board was discussing, among other things, the elimination of some vacant positions and the dismissal of some village employees. Village board member Jerry Hurckes testified that while discussing Cipolla's termination, finance director Hanigan said, " Well, she [Cipolla] is older." Hurckes said he admonished Hanigan saying, " those kinds of words can't be used because that's what gets us in trouble." Hurckes said trustee Alex Olejniczak also similarly admonished Hanigan. Olejniczak, however, testified he never heard Jerry Hurckes scold Brian Hanigan for making comments about Cipolla's age and said that if Hanigan had made that type of comment he would have objected but denied having done so. Several other witnesses at the executive session, including village trustees Thomas Phelan and Carol Quinlan and village mayor David Heilmann, also testified that they did not hear Hanigan make any comments about Cipolla's age.

[¶12] Village manager Deetjen testified that Hanigan recommended eliminating Cipolla's position and giving her job responsibilities to Deanne Adasiak, a village employee who worked on special events. Deetjen said that the decision to terminate Cipolla was not performance-based but was an effort to address the village's budget problems. Deetjen testified that in addition to Cipolla's position, the budget amendment eliminated several vacant positions and resulted in the layoff of three firefighters. Hanigan acknowledged that during the executive session meeting he recommended that the village's finance department be restructured by consolidating Cipolla's and Adasiak's positions to help close the village's budget gap but denied making any statements about Cipolla's age during that meeting.

[¶13] On April 22, 2008, the village board held a public meeting and approved the budget amendments, which included the elimination of Cipolla's position and three

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firefighter positions. Trustee Hurckes voted against the amendments. Trustees Olejniczak, Phelan and Quinlan voted for the budget amendment, but testified their votes were not motivated by Cipolla's age. Later, Cipolla saw Hurckes at a political fundraiser, and he told her about Hanigan's comments regarding her age. At about the same time, Cipolla saw a job posting on the village website for a budget director with a salary that exceeded the salary she had been earning in the business regulation officer position. Deetjen confirmed that a few months after Cipolla left the village hired a budget director, whose salary exceeded Cipolla's. Cipolla acknowledged she was not qualified for that job because she did not have an accounting degree.

[¶14] Cipolla also acknowledged that on the day she was terminated, Deetjen told her about a potential opening in the village's 911 telecommunications center, but said no formal job offer was made, and she believed she would need to pass a civil service test before she could be offered that position. On cross-examination, Cipolla conceded that she was not interested in the telecommunications position because she had small children and did not want to work evening and weekend hours and also did not think she could handle the pressure of the job. Cipolla said the village offered no other alternatives to termination, such as taking a lower salary or assuming the job duties of another village employee with less tenure.

[¶15] After Cipolla was terminated, she submitted paperwork with the Illinois Municipal Retirement Fund (IMRF) and has been receiving pension payments since April 2008. Cipolla testified that she filed the IMRF papers so that she and her husband could continue to get health insurance through the village's insurance plan rather than buying health insurance from a private insurer. She said that the village continues to ...

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