Cipolla v. The Village of Oak Lawn , 2015 IL App (1st) 132228 ( 2015 )

Illinois Official Reports
Appellate Court
Cipolla v. Village of Oak Lawn, 2015 IL App (1st) 132228Appellate Court DIANE CIPOLLA, Plaintiff-Appellant, v. THE VILLAGE OF OAK
Caption LAWN, Defendant-Appellee.
District & No. First District, Third Division
Docket No. 1-13-2228
Filed January 14, 2015
Held In an action alleging that plaintiff, who had worked for defendant
(Note: This syllabus village for 12 years and was nearly 60 years old, was terminated from
constitutes no part of the her position as a result of age discrimination, the jury’s verdict for the
opinion of the court but village was upheld on appeal, over plaintiff’s arguments that the trial
has been prepared by the court erred in failing to clarify the meaning of “fired,” that defense
Reporter of Decisions counsel made improper remarks during closing argument, that a “cat’s
for the convenience of paw” instruction should have been given, that the village should not
the reader.) 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.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-1673; the
Review Hon. Thomas R. Mulroy, Judge, presiding.
Judgment Affirmed.
Counsel on Dana L. Kurtz and Heidi Karr Sleper, both of Kurtz Law Offices, Ltd.,
Appeal of Hinsdale, for appellant.
Jennifer Turiello, of Peterson, Johnson & Murray-Chicago, LLC, of
Chicago, for appellee.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Mason concurred in the
judgment and opinion.
OPINION
¶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 nondiscriminatory 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
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was not against the manifest weight of the evidence.
¶4 BACKGROUND
¶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
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audiotape. Cipolla alternatively asked 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 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
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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 pay part of her health insurance
premium, but at a lower rate than when she was a village employee.
¶ 16 After she was terminated, Cipolla searched for other job opportunities, without success.
In June 2008, she took a part-time, unpaid position at her husband’s snack food business. In
2010, she began receiving salary for her work at the company, and at the time of trial, was
earning $12,000 a year. Cipolla testified that her duties involve sales and marketing,
attending trade shows, and sending samples and product pricing information to distributors.
She said she has business cards with the title of sales director, but said she uses them
primarily to provide potential customers her contact information. Cipolla described the
company as a small, three-employee business and her job as a “lesser position” than the one
she held at the village.
¶ 17 On cross-examination, Cipolla acknowledged that her husband’s business partner was
Fred Plochman, one of the owners of Plochman’s Mustard Company, that Fred Plochman
died and her husband is now the sole owner of the business. She also acknowledged that the
company’s products are sold in Whole Foods stores, as well as in China and Dubai. Over
objection, defense counsel asked Cipolla about a report showing the company had annual
revenues exceeding $2 million. Cipolla denied knowledge about the company’s finances but
disputed that figure.
¶ 18 Plaintiff’s husband, Paul Cipolla, testified that his company is a small snack food
business with three employees. He said he hired his wife as a part-time sales director because
she was unable to find other employment and he thought it would help alleviate the
depression she felt after losing her job with the village. On cross-examination and over
objection from plaintiff’s attorney, Paul Cipolla testified that his company’s 2012 annual
revenues were between $500,000 and $1 million. On redirect, he said that the $500,000 to $1
million figure was not income to him because it did not include deductions for expenses paid
to distributors and contractors.
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¶ 19 During the jury instruction conference, Cipolla tendered a non-Illinois Pattern Jury
Instruction (plaintiff’s instruction No. 10), which read as follows:
“The Illinois Human Rights Act prohibits ‘unlawful discrimination.’ Unlawful
discrimination is discrimination against a person on the basis of his or her race, color,
religion, national origin, ancestry, age, sex, marital status or handicap.
The Act specifically defines the following conduct as a civil rights violation in the
employment context: For any employer to refuse to hire, to segregate, or to act with
respect to recruitment, hiring, promotion, renewal of employment, selection for
training or apprenticeship, discharge, discipline, tenure or terms, privileges or
conditions of employment on the basis of unlawful discrimination.”
¶ 20 The village objected, arguing that the first paragraph alone would sufficiently and
accurately state Illinois law and noting that plaintiff’s instruction No. 11 (see Illinois Pattern
Jury Instructions, Civil, No. 250.02 (2011)) (hereinafter, IPI Civil (2011)) already addressed
the elements Cipolla was required to prove to prevail on her age discrimination claim.
Plaintiff’s instruction No. 11 stated:
“The Plaintiff has the burden of proving each of the following propositions:
First, that the Plaintiff was an employee of the Defendant;
Second, that the Plaintiff was fired from her employment with the Defendant;
Third, that the Plaintiff was fired because of her age;
Fourth, that the Plaintiff sustained damages as a result of her firing.
If you find from your consideration of all the evidence that each of these
propositions has been proven, then your verdict should be for the Plaintiff. On the
other hand, if you find from your consideration of all the evidence that any of these
propositions has not been proven, then your verdict should be for the Defendant.”
¶ 21 The trial court gave plaintiff’s instruction No. 11 and over Cipolla’s objection only gave
the jury the first paragraph of plaintiff’s instruction No. 10.
¶ 22 Two other proposed jury instructions on which the parties disagreed were plaintiff’s
instructions Nos. 17 (a modified IPI) and 18 (a non-IPI). Plaintiff’s instruction No. 17
modified the IPI Civil (2011) No. 50.02 agency instruction as follows: “Brian Hanigan and
Larry Deetjen were agents of the Defendant Village of Oak Lawn at the time of Plaintiff’s
termination. Therefore, any act or omission of the agents at that time was in law the act of
omission of the Defendant Village of Oak Lawn.” The village objected, arguing that agency
was not a contested issue and the instruction would confuse the jury. The village also
objected to Cipolla’s proposed non-IPI instruction No. 18, seeking to hold the village liable
for Hanigan’s discriminatory intent, also referred to as “cat’s paw liability.” Plaintiff’s
instruction No. 18 read: “The Defendant Village of Oak Lawn may be held liable for
employment discrimination based on the discriminatory animus of a supervisor who
influenced, but did not make, the ultimate employment decision, if that supervisor performs
an act motivated by discriminatory animus that is intended by the supervisor to cause the
termination, and does cause the termination.”
¶ 23 Cipolla’s attorney contended cat’s paw liability was an issue because evidence showed
that Hanigan recommended to Deetjen that Cipolla be terminated. The trial court declined to
give instruction No. 18, finding it would confuse the jury, but instead gave the modified
agency instruction, plaintiff’s instruction No. 17.
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¶ 24 While the jurors were deliberating, they sent a note to the judge, stating, “Judge, Please
define fire. Does it include, a) laid off; b) terminated; c) eliminated.” Cipolla’s counsel
argued the trial judge should answer in the affirmative and suggested that the jury’s
confusion could have been avoided if the trial judge had given plaintiff’s proposed
instruction No. 10 in full. The trial judge decided the question was a factual one and
answered it by telling the jurors, “You should resolve your questions by continuing to review
said facts and by reference to the jury instructions.” Cipolla’s attorney did not object to this
response.
¶ 25 The jury returned a verdict in favor of the village. In addition, the jury answered two
special interrogatories in the negative, finding that the nondiscriminatory reason the village
gave for terminating Cipolla’s employment (i.e., budget) was not a pretext and that the
village did not fire Cipolla because of her age. On January 31, 2013, the trial court entered
judgment against Cipolla and in favor of the village. Cipolla filed a motion for a new trial
arguing, in part, that the verdict was against the manifest weight of the evidence, that the trial
judge erred in refusing to answer the jury’s question regarding the definition of “fired,” and
that several of the trial judge’s rulings on evidence and jury instructions were erroneous. The
trial court denied the motion for a new trial and Cipolla filed a timely notice of appeal.
¶ 26 ANALYSIS
¶ 27 Jurors’ Question
¶ 28 Cipolla first contends the trial court abused its discretion by not answering the jury’s
question whether “fired” includes laid off, terminated, or eliminated. She asserts the judge’s
failure to provide an answer led to jury confusion and warrants reversal and a new trial.
¶ 29 As a preliminary matter, we address defendant’s assertion that Cipolla waived the issue
by assenting to the trial court’s decision to tell the jury to continue to deliberate. Generally,
when a party consents to a trial court’s answer to a jury question, that party cannot later argue
that the trial court’s answer was an abuse of discretion. People v. Averett, 237 Ill. 2d 1, 24
(2010). The record shows that after receiving the jury’s question, the trial judge asked the
attorneys for input on a response. When defense counsel suggested the judge tell the jury that
“fired” does not include eliminated, plaintiff’s attorney objected and asked to “make a
record” that the trial court should have given the jury plaintiff’s instruction No. 10. Although
the judge ultimately rejected plaintiff’s request, stating that he could not give the jury
additional instructions, and told the jury to continue to review the facts, plaintiff’s counsel
did present an objection, which she again raised in her motion for a new trial. Thus, plaintiff
preserved the issue.
¶ 30 Generally, the trial court has “a duty to provide instruction to the jury where it has posed
an explicit question or requested clarification on a point of law arising from facts about
which there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-29 (1994). The
duty to answer the jury’s question applies even if the jury was properly instructed. Id. at 229;
see also People v. Reid, 136 Ill. 2d 27, 39 (1990). Therefore, “[t]he failure to answer or the
giving of a response which provides no answer to the particular question of law posed has
been held to be prejudicial error.” Childs, 159 Ill. 2d at 229. But the trial court has the
discretion to “decline to answer a jury’s inquiries where the instructions are readily
understandable and sufficiently explain the relevant law, where further instructions would
serve no useful purpose or would potentially mislead the jury, when the jury’s inquiry
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involves a question of fact, or if the giving of an answer would cause the court to express an
opinion which would likely direct a verdict one way or another.” Id. at 228. A trial court’s
decision on how to respond to jury questions during deliberations is “ordinarily left to the
discretion of the trial court, so that the trial court’s decision will be disturbed on appeal only
if that decision constituted an abuse of discretion. [Citation.]” (Internal quotation marks
omitted.) People v. Nash, 2012 IL (1st) 093233, ¶ 39.
¶ 31 Cipolla relies on Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill. App. 3d 165(1997), to support her argument that the trial judge’s decision not to answer the jury’s
question was an abuse of discretion. In Van Winkle, the plaintiff alleged that the defendant
conspired with others to suppress the health hazards of asbestos exposure. Van Winkle, 291
Ill. App. 3d at 167. During deliberations, the jury asked a question about the underlying
charge of a civil conspiracy, namely, expressing “ ‘confus[ion] about the meaning of “one or
more parties” in a conspiracy’ ” and whether it could mean defendant alone or had to be
defendant and another company. Id. at 171. After conferring with counsel for both parties,
the trial court referred the jury to the written jury instructions. Id. at 172. The appellate court
found this response to be an abuse of discretion warranting reversal. The appellate court first
noted that the jury asked a specific question that manifested its confusion on a substantive
legal issue–who could enter into a conspiracy–which was critical to deciding the merits of the
defense. The court further noted that although the jury instructions may have been proper,
that “is not the determinative inquiry. The issue is whether the instructions were clearly
understandable to the jury.” (Internal quotation marks omitted.) Id. at 173. Concluding that
the trial court’s failure to answer the question substantially prejudiced the defendant, the
court stated: “[I]n the midst of jury deliberations after a vigorously contested trial, a question
from the jury deserves as much–if not more–thoughtful consideration as did the original
instructions.” Id. at 174.
¶ 32 The Van Winkle court relied heavily on the reasoning of Childs. In Childs, the jury
requested clarification of jury instructions on an “intricate” and “difficult” point of
law–whether a guilty verdict on armed robbery mandated a guilty verdict of murder or still
allowed for the jury to find defendant guilty of voluntary or involuntary manslaughter. In
response, the trial court briefly attempted to answer the question through an ex parte
communication, but this response did not clarify the legal issues raised in the jury’s question.
While the trial court admitted that it did not understand the question, it made no effort to
clarify the jury’s question. The supreme court found that the question reflected juror
confusion over a substantive legal issue and the trial court had a duty to answer it. Therefore,
the trial court’s failure to address the problem that triggered the question substantially
prejudiced the defendant. Childs, 159 Ill. 2d at 234. The supreme court in reversing the
judgment concluded, “It is not apparent to us that the manner in which the court dealt with
the jury’s inquiry was not a factor in the rendering of that verdict.” Id. at 234-35.
¶ 33 Cipolla contends that as in Van Winkle and Childs, the jury’s question expressed
confusion about a specific substantive legal issue and the trial judge’s refusal to answer it left
the jury confused as to a fundamental element of employment discrimination, requiring
reversal and a new trial. We disagree. The jury’s question, whether “fired” included laid off,
terminated, or elimination of Cipolla’s position, was a question of fact for the jury to decide.
The jury heard several witnesses, including village manager Deetjen, testify about the
distinction between an employee being fired and a position elimination, suggesting that
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Cipolla was not fired because the decision was not “performance based.” Village trustee
Olejniczak also testified about a factual distinction between firing, terminating, and
eliminating an employee’s position, in that firing is performance based while a position
elimination involves budgetary factors. The jury question in this case, unlike the jury
questions in Van Winkle and Childs, involves a question of fact, not a question of law. Thus,
the trial court did not abuse its discretion in not answering the jury’s question.
¶ 34 We also disagree with Cipolla’s contention that the jury’s question would have been
avoided if the trial court had given her proposed jury instruction No. 10, rather than only the
first paragraph. The remainder of that proposed jury instruction does not mention layoffs or
elimination of positions or define what those terms mean in relation to the word “fired.” The
decision to provide a particular jury instruction lies within the sound discretion of the trial
court and will not be disturbed absent abuse of discretion. Webber v. Wight & Co., 368 Ill.
App. 3d 1007, 1020-21 (2006). Cipolla has failed to show that if the trial judge had given her
proposed instruction, the jury would have not submitted the question or that the trial court
abused its discretion in refusing to do so.
¶ 35 Finally, we note that Cipolla’s claim of error is based on the trial court’s decision to
refrain from answering a question related to an instruction she tendered. If the jury was
confused about the meaning of the word “fired,” it was because Cipolla used that word in a
jury instruction she tendered (plaintiff’s instruction No. 10). By tendering the instruction,
Cipolla took the position that it was an accurate statement of the law, and she cannot now
argue error related to the trial court’s decision not to clarify that instruction. Further IPI Civil
(2011) No. 250.02, on which plaintiff’s instruction No. 10 was based, gives a party the option
of using “discharged” instead of “fired,” which would have been a more accurate description
of the village’s action–it discharged her due to the elimination of her position for budgetary
reasons. Because Cipolla did not use the more accurate term when requesting the jury
instruction, she cannot now complain.
¶ 36 Defense Counsel’s Closing Argument
¶ 37 Cipolla next contends the trial court abused its discretion in denying her request for a new
trial based on defense counsel’s comments during closing arguments. The village’s attorney
asserted that Cipolla “[was not] fired, at all” because “[t]he Village of Oak Lawn is still
subsidizing her health insurance. They don’t do that for fir[ed] employees.” Cipolla contends
the statement was false because her contributions to IMRF while she was a village employee
entitled her to health insurance regardless of how her employment was terminated. Cipolla
asserts that defense counsel attempted to confuse the jury by implying that Cipolla’s receipt
of health insurance through IMRF necessarily means she was not fired.
¶ 38 The purpose of closing argument is to draw reasonable inferences from the evidence and
assist the jury in fairly arriving at a verdict based on the law and evidence. Copeland v.
Stebco Products Corp., 316 Ill. App. 3d 932, 948 (2000). As a result, counsel is afforded
wide latitude during closing argument and may comment and argue on the evidence and any
reasonable inferences that may be fairly drawn from the evidence. Clarke v. Medley Moving
& Storage, Inc., 381 Ill. App. 3d 82, 95 (2008). “The scope of closing argument is within the
sound discretion of the trial court and the reviewing court will reverse only if the argument is
prejudicial.” (Internal quotation marks omitted.) O’Neil v. Continental Bank, N.A., 278 Ill.
App. 3d 327, 340 (1996).
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¶ 39 First, we note that defense counsel’s assertion that Cipolla was not fired was appropriate
as that was the basis of the village’s affirmative defense, namely that her position was
eliminated as part of an overall restructuring of the finance department. Several witnesses at
trial provided testimony to support this defense and witnesses stated that Cipolla was not
“fired” for performance reasons but rather budget cuts led to the elimination of her position.
Thus, defense counsel’s comments were reasonably drawn from the evidence.
¶ 40 Furthermore, although Cipolla contends defense counsel made a false statement by
stating that Cipolla must not have been fired because fired employees are not entitled to
healthcare benefits, the record does not indicate that defense counsel knew this assertion was
false. Plaintiff’s attorney did not object to the statement during the trial and, thus, nothing in
the record sheds light on whether the statement was knowingly false. But, even if defense
counsel knew that this assertion regarding Cipolla’s entitlement to village subsidized
healthcare benefits was false, Cipolla is unable to show that she was prejudiced by it. The
central issue in the case was whether the village terminated Cipolla because of her age and
only used the budget as a pretext. Answers to the two special interrogatories establish that the
jury found the village acted appropriately. Thus, because defense counsel’s comments did not
go to the central question–the reason for Cipolla’s termination–Cipolla is unable to show that
she was prejudiced by defense counsel’s closing argument, and they do not constitute
grounds for a new trial.
¶ 41 Cat’s Paw Liability Instruction
¶ 42 Cipolla next argues the trial court erred in refusing her request to give a cat’s paw
liability jury instruction to permit the jury to determine whether the village could be found
liable for Hanigan’s discriminatory motive in recommending her termination.
¶ 43 Whether to provide a particular jury instruction lies within the sound discretion of the
trial court, and a reviewing court will not disturb that determination absent a clear abuse of
discretion. Webber v. Wight & Co., 368 Ill. App. 3d 1007, 1020-21 (2006). It is for the trial
court to evaluate if a jury instruction is “ ‘applicable, supported by evidence in the record,
and an accurate statement of the law.’ ” Id. at 1021 (quoting Luye v. Schopper, 348 Ill. App.
3d 767, 773 (2004)). Litigants are entitled to have the jury instructed as to their theory of the
case, but the instructions they propose “must accurately state applicable law” for them to be
given at trial. (Internal quotation marks omitted.) Id. Ultimately, no abuse of discretion can
be established as long as “taken as a whole, the instructions fairly, fully, and
comprehensively apprise[ ] the jury of the relevant legal principles” of the case. Schultz v.
Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002). A new
trial will be granted based on the court’s refusal to give a proposed instruction only when that
refusal has caused serious prejudice to a litigant’s right to a fair trial. See Stift v. Lizzadro,
362 Ill. App. 3d 1019, 1026 (2005).
¶ 44 The cat’s paw theory of liability seeks to hold an employer liable when a supervisory
employee acts with discriminatory intent to cause a higher-up employee to take adverse
action against the plaintiff. Staub v. Proctor Hospital, 562 U.S. 411, ___, 131 S. Ct. 1186,
1190 (2011). The employee with a discriminatory intent does not make the firing decision
but influences another person who unwittingly fires the employee. To succeed under this
theory, a plaintiff must show the nondecisionmaker exercised such “ ‘singular influence’ ”
over the decisionmaker that the decision to terminate was the product of “blind reliance.” Id.- 10 -
at ___, 131 S. Ct. at 1190. (The term “cat’s paw” comes from a fable by Aesop and is cited in
the employment discrimination context in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.
1990). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the
fire. After the cat does so, burning its paws in the process, the monkey makes off with the
chestnuts and leaves the cat with nothing. A coda to the fable observes that the cat is similar
to princes who, flattered by the king, perform services on the king’s behalf and receive no
reward. Staub, 562 U.S. at ___ n.1, 131 S. Ct. at 1190 n.1.)
¶ 45 The evidence at trial did not warrant a cat’s paw liability instruction, and thus, the trial
court did not abuse its discretion in refusing to give it. Several witnesses, including Deetjen,
Hurckes and Olejniczak, testified that Oak Lawn employed a village manager form of
government and that Deetjen, as village manager, had the authority to make all personnel
decisions. It is undisputed that department directors could make recommendations to Deetjen
regarding hiring and firing of employees and that Hanigan, the finance department director,
recommended that the finance department be reorganized by eliminating Cipolla’s position
and transferring her job responsibilities to another village employee. But there was no
testimony or evidence indicating that Deetjen blindly relied on Hanigan when he decided to
terminate Cipolla.
¶ 46 Moreover, for Cipolla’s termination to become final, the budget amendments that
proposed the elimination of the business licensing officer position, as well as three firefighter
positions, had to be approved by a majority of the village board. Board members who voted
in favor of the budget amendment testified their votes were in no way motivated by Cipolla’s
age. Thus, in the absence of clear evidence that Hanigan had a discriminatory intent and was
a “singular influence” on Deetjen, a cat’s paw liability instruction was not warranted.
¶ 47 Further, the trial judge did give plaintiff’s jury instruction No. 18, which permitted the
jury to find the village liable under an agency theory, namely, that because Hanigan, the
village’s agent, improperly discriminated against Cipolla, the principal, the village is liable.
An additional cat’s paw liability instruction was not necessary to permit the jury to find the
village liable based on Hanigan’s alleged discriminatory comments. Thus, Cipolla was not
prejudiced by the trial court’s decision not to give the cat’s paw liability instruction.
¶ 48 Denial of Motion in Limine
¶ 49 Cipolla contends she was denied a fair trial when the trial court allowed the village to
present witnesses to deny that Hanigan made statements about Cipolla’s age during the April
10, 2008 executive session, while simultaneously permitting the village to claim privilege
under the Open Meetings Act (5 ILCS 120/1 et seq. (West 2012)) as a basis for not turning
over the audiotape.
¶ 50 As noted above, Cipolla filed a motion asking the trial court to either compel the village
to turn over a copy of the audiotape from the executive session or to bar the village from
denying that Hanigan made a statement about Cipolla’s age during the session. In her motion,
Cipolla asked in the alternative that the trial court conduct an in camera inspection of the
audiotape. The court granted the alternative relief requested and, after carefully reviewing the
transcript and listening to the audiotape in camera, determined that no mention was made of
Cipolla’s age and that nothing of relevance to this case was said in the executive session.
Thus, Cipolla was granted the relief she requested in her motion to compel or bar, and cannot
argue that the trial court erred in denying her motion to compel.
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¶ 51 We also do not find that the trial court erred in permitting the village to present witnesses
who testified that Hanigan said nothing regarding Cipolla’s age during the executive session.
As Cipolla notes, before trial she filed a motion in limine asking the trial court to bar the
village from presenting testimony denying that Hanigan made statements about Cipolla’s age
during the executive session or in the alternative to bar evidence and testimony relating to
the tape of the April 10, 2008 executive session. Although the trial court’s ruling on that
motion is not evident from the record, given that several witnesses testified that Hanigan did
not comment on Cipolla’s age during the executive session and no witnesses testified about
the tape, it appears the trial court granted the alternative relief Cipolla requested, i.e., by
barring any evidence or testimony relating to the audiotape. Thus, once again, Cipolla cannot
be heard to complain that the alternative relief requested was granted.
¶ 52 Further, as the appellant, it is Cipolla’s burden to present a sufficiently adequate record to
support her claim of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). In the absence of
an adequate record, it is presumed the trial court’s order was in conformance with Illinois
law. Id. Any doubts arising from the incompleteness of the record are resolved against
appellant. Id. As noted, nothing in the record indicates how the trial court ruled on the motion
in limine or the reasoning behind its ruling. Hence we presume the trial court’s ruling was in
compliance with Illinois law.
¶ 53 Evidence Regarding Husband’s Business
¶ 54 Cipolla next contends that evidence elicited by the village about the value of her
husband’s snack company was more prejudicial than probative and warrants a new trial.
Specifically, plaintiff points to questions from defense counsel, over objection, regarding the
revenue generated by her husband’s company, the financial status of her husband’s deceased
former business partner, and where the company’s products are sold and for how much.
Plaintiff argues that none of this evidence was relevant to her claim of age discrimination and
was intended to prejudice her by suggesting that her husband’s business made so much
money that plaintiff did not need her job at the village. She also contends the trial court erred
in permitting the jury to take documents regarding her husband’s business into the jury room,
specifically the corporation’s annual report filed with the Illinois Secretary of State, when
that document was only used for impeachment purposes.
¶ 55 Evidence must be relevant to be admissible at a trial. Voykin v. Estate of DeBoer, 192 Ill.
2d 49, 57 (2000). Evidence is only relevant if it proves a fact in controversy or renders a
matter at issue more or less probable. In re A.W., 231 Ill. 2d 241, 256 (2008).
¶ 56 We agree with plaintiff that evidence regarding the size and revenue of her husband’s
business was not directly relevant to her claim of age discrimination. But Cipolla had a duty
to mitigate her damages by seeking employment. ISS International Service System, Inc. v.
Human Rights Comm’n, 272 Ill. App. 3d 969 (1995) (party alleging employment
discrimination required to make reasonable efforts to mitigate damages by seeking new
employment). Cipolla testified that she was unable to find a position similar to the one she
held at the village and became a paid employee at her husband’s company in 2010. Cipolla
described her husband’s company as a small business and her position as “lesser” than the
one she held at the village. To rebut the argument that Cipolla’s damages may be greater
based on her inability to find satisfying employment, it was proper for the village to question
Cipolla about her current position with her husband’s company, including the company’s
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revenues and sales to determine, for damages purposes, whether her job likely was less
fulfilling than her prior position.
¶ 57 Thus, because the questions regarding Cipolla’s husband’s business were relevant to
damages and plaintiff’s efforts in mitigating them, the trial court did not err in permitting the
village to elicit the evidence.
¶ 58 We also find that the trial court did not err in permitting the jury to take into the jury
room the annual report for Cipolla’s husband’s company, which listed Cipolla as
secretary/treasurer. Relying on Esderts v. Chicago Rock Island & Pacific R.R. Co., 76 Ill.
App. 2d 210, 229 (1966), Cipolla contends that documents used only for impeachment
purposes may not go to the jury room. In admitting that document into evidence, the trial
judge noted that it could be used substantively and not just for impeachment because Cipolla
denied she was the corporation’s secretary/treasurer. Thus, since the document was admitted
into evidence, the trial court did not err in permitting the jury to take it into the jury room.
But even if, as Cipolla contends, she never denied that she had a title with the company but
simply stated that she had never seen the annual report before, the trial court did not err in
permitting the jury to take the document to the jury room. A trial court has great discretion in
deciding what documents to send to the jury room. Brdar v. Cottrell, Inc., 372 Ill. App. 3d
690 (2007). The trial court did not abuse its discretion in permitting into the jury room a
document that, as noted above, was relevant to the issue of mitigation of damages.
¶ 59 Verdict Was Not Against Manifest Weight of the Evidence
¶ 60 Lastly, Cipolla contends the trial court’s judgment should be reversed and the case
remanded for a new trial because the verdict in the village’s favor was against the manifest
weight of the evidence. “A court of review is empowered to reverse a jury verdict only if it
was against the manifest weight of the evidence.” Ford v. City of Chicago, 132 Ill. App. 3d
408, 412 (1985). Typically, a verdict will be viewed as being against the manifest weight of
the evidence “where it is palpably erroneous and wholly unwarranted [citation], is clearly the
result of passion or prejudice [citation], or appears to be arbitrary, unreasonable, and not
based upon the evidence [citation].” Id. In other words, “[w]hen considering whether a
verdict was contrary to the manifest weight of the evidence, a reviewing court must view the
evidence in the light most favorable to the appellee.” Id.¶ 61 Cipolla argues the evidence at trial did not support a finding that the village terminated
her employment due to budget considerations. She contends the budget was not on the
agenda for the April 10, 2008 executive session meeting and, moreover, could only have
been discussed in a public meeting. She also asserts that Hanigan’s comment that that she
was “older” and the village’s decision to hire a budget director and give finance department
employees raises in 2008 after she was terminated, shows that the budget was only a pretext
and that the real reason she was let go was her age.
¶ 62 Cipolla’s arguments fail for a number of reasons. First, numerous witnesses testified that
the village was having financial issues and needed to cut about $1.4 million from its budget,
which supports a finding that the budget was not a pretext for terminating Cipolla. In
addition, the primary evidence that the village terminated Cipolla because of her age were
alleged statements by Hanigan that she was an “older” employee. But the testimony at trial as
to whether Hanigan made that statement during the executive session was conflicting.
Hurckes testified he heard Hanigan say that Cipolla was older and that he and Olejniczak
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admonished Hanigan for the comment. Hanigan denied making any statement about
Cipolla’s age and Olejniczak denied hearing it or admonishing Hanigan. Several other board
members also denied hearing the alleged comment and testified that they voted for the budget
amendment for financial reasons and not because of Cipolla’s age. These statements were
further supported by the fact that Cipolla was not the only person to lose her job as a result of
the budget cuts–three firefighter positions were eliminated too. The evidence was conflicting,
without a doubt, but when viewed in a light most favorable to the appellee, the jury’s finding
that the village did not terminate Cipolla because of her age and only used the budget as a
pretext was not against the manifest weight of the evidence.
¶ 63 CONCLUSION
¶ 64 We affirm the trial court orders entering judgment in favor of the village and denying
Cipolla’s motion for a new trial.
¶ 65 Affirmed.
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