Hubert v. Board of Education of the City of Chicago ( 2020 )

2020 IL App (1st) 190790No. 1-19-0790
FIRST DIVISION
June 29, 2020
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
JEFFREY HUBERT, ) Appeal from the Circuit Court of
) Cook County
Plaintiff-Appellant, )
)
v. )
) No. 16 L 1507
THE BOARD OF EDUCATION OF THE CITY )
OF CHICAGO, )
) Honorable Brigid Mary McGrath,
Defendant-Appellee. ) Judge Presiding
PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Justices Hyman and Pierce concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Jeffrey Hubert worked for Chicago Public Schools managing bus transportation
services for students. Hubert became aware that private bus vendors that the school system had
hired were overbilling for their services and otherwise committing fraud against the school system.
Hubert worked to root out the fraud by voicing concerns within the school system and by meeting
with law enforcement. His employment with Chicago Public Schools was terminated, and he
contends that he was fired for working to expose the fraud.
No. 1-19-0790
¶2 Defendant, the Board of Education of the City of Chicago, claims that Hubert’s work to
expose fraud has nothing to do with his termination. Hubert had a well-documented history of
treating his colleagues and subordinates in an unprofessional manner, including multiple verbal
altercations with coworkers. Hubert also clashed with his superiors, and he had trouble taking
direction. The Board of Education claims that Hubert was fired for insubordination and divisive
workplace conduct.
¶3 Hubert brought this case for retaliatory discharge and violations of the Illinois
Whistleblower Act (740 ILCS 174/1 et seq. (West 2016)). The Board of Education moved for
summary judgment arguing that it had valid, non-retaliatory reasons for terminating Hubert’s
employment. The trial court agreed and granted summary judgment in favor of the Board of
Education. Hubert appeals. We conclude that the motive for Hubert’s discharge is an unresolved
genuine issue of material fact. Accordingly, we reverse and remand for further proceedings.
¶4 I. BACKGROUND
¶5 Plaintiff Jeffrey Hubert was hired by the Chicago Public Schools’ Student Transportation
Services in January 2013 as the director of transportation operations. Student Transportation
Services manages the yellow bus services for Chicago Public Schools. The transportation services
department manages 1,600 school buses per day that are responsible for transporting 22,000
Chicago Public Schools students. Yellow bus services for Chicago Public Schools are provided by
third-party vendors that enter into contracts with the defendant Board of Education. In Hubert’s
role as director of Student Transportation Services, one of his responsibilities was to assess that
the costs for yellow bus services were honest and fair. His job duties expressly included increasing
efficiencies and identifying ways to save Chicago Public Schools money.
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¶6 Every few years, the Board of Education solicits bids from private vendors for yellow bus
services and awards contracts. In 2013, the Board undertook that process. In the 2013 bidding
period, Hubert became suspicious of the bidding because several of the vendors submitted very
similar pricing. It was apparently well known within the ranks of the Student Transportation
Services department that a number of bus vendors acted cooperatively in certain areas, such as that
they shared facilities and attorneys and even referred to themselves cooperatively as “the
Association.” Hubert suspected that the bus vendors were engaged in price fixing and perhaps
other improper practices. Hubert informed his supervisor, Paul Osland, about the suspicious
activity. In response to Hubert voicing his concerns about the potentially improper activity by the
bus vendors, Osland sent an email to the inspector general of the Chicago Public Schools.
¶7 Hubert continued to investigate and discover other seemingly improper activity by the bus
vendors who were taking advantage of Chicago Public Schools and the taxpayers. Hubert learned
that in the run up to the 2013 bidding, Jewel’s Bus Company had admitted to billing Chicago
Public Schools for services it never performed. Hubert informed his supervisor, Osland, about this
additional information. When representatives from Jewel’s Bus Company met with Hubert and the
other members of the team awarding contracts in 2013, Hubert confronted the representative from
Jewel’s Bus Company and expressed his opinion that Jewel’s should not be awarded any contracts
because the company had stolen from the school board and the Chicago taxpayers. Jewel’s general
counsel was upset by Hubert’s conduct at the meeting and expressed that displeasure to Osland.
Hubert was subsequently removed from the team awarding the 2013 contracts, and Jewel’s was
one of the vendors awarded a contract.
¶8 Even after Hubert was removed from the process and the contracts were awarded, Hubert
continued to investigate Jewel’s Bus Company. The Board of Education conducted and
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investigation and concluded that Jewel’s overbilled Chicago Public Schools for well over
$1,000,000 and likely over $2,000,000. The Board terminated its contract with Jewel’s for 2014.
Hubert believed that there was additional fraudulent activity occurring in regard to school bus
services. Hubert discovered that vendors were taking advantage of the pay structure by driving
wildly inefficient routes to and from the schools because one of the components of their pay was
mileage. So the vendors would make stops out of order, back track, and so on, in order to maximize
the mileage component of their pay. Hubert also discovered that the vendors would sometimes
report that they were running two buses and bill for using two buses when they would actually
combine the run and only use one bus.
¶9 Hubert was displeased at the lack of effort expended to investigate or put a stop to the bus
vendors’ supposed collusion and fraudulent activity. However, Hubert and Osland met with the
inspector general for the Chicago Public Schools on multiple occasions to discuss the matter. After
the meetings between Hubert, Osland, and the inspector general, Hubert continued to meet with
the inspector general on his own. Additionally, and unbeknownst to Hubert, Osland continued to
work with the inspector general on the issue too. Osland also involved the U.S. Attorney’s Office.
The U.S. Attorney eventually brought criminal charges against Jewel’s Bus Company for its
fraudulent dealings. It seems apparent that Hubert was unaware of the steps that Osland was taking
to address the issue.
¶ 10 In his day-to-day duties, Hubert continued to take steps to ameliorate the fraudulent activity
by the school bus vendors. Hubert ordered that the buses be tracked and monitored by cameras and
GPS when possible. Hubert claims that he consistently complained within the Department and to
his supervisors that the vendors were corrupt and that his department, Student Transportation
Services, was complicit in the corrupt scheme. Hubert contends that Osland interfered with his
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efforts aimed at combatting fraud. For example, Hubert points out that Osland reversed financial
sanctions Hubert levied against a vendor and that Osland worked to limit Hubert’s contact with
the school bus vendors. Fed up with the efforts to stem the theft from the schools, in November
2013, Hubert met with representatives of the FBI, the Office of the Inspector General, and the
Department of Education about the fraud he was witnessing.
¶ 11 After Hubert met with law enforcement, he received an email from Osland with a link to
an opinion in a legal case. The email states that the case deals with a Chicago Transit Authority
employee who was fired for whistleblowing against a company that was fraudulently overbilling
the CTA for “stuff not run.” See O’Connor v. Chicago Transit Authority, 778 F. Supp. 967, 968
(N.D. Ill. 1991). Hubert claims that he took the email to be an acknowledgement that Osland knew
he had met with law enforcement, and Huber considered the email to be a threat that he would also
be fired for pursuing his claims of fraudulent overbilling by the bus vendors.
¶ 12 Along with being aggressive and outspoken about his displeasure with the vendors’
behavior, Hubert exhibited an aggressive management style with his colleagues. In documents
prepared for this case, Hubert’s subordinates remarked about his bad temper and they maintained
that his management style was unprofessional and led to a stressful work environment.
Subordinates recalled several occasions in which Hubert yelled or raised his voice at staff
members. Hubert also had documented verbal altercations with at least two of his coworkers,
Kristin Lausman and Megan Wilson. Osland was well informed about Hubert’s confrontations
with his coworkers. Osland counseled Hubert during almost the entirety of his employment about
his conduct towards his peers and subordinates. Hubert’s coworkers felt that Hubert made their
jobs more stressful and they stated that his condescending behavior towards them was disruptive
and unprofessional.
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¶ 13 The two tracks of concurrent events that occurred at the beginning of 2015 deserve close
inspection because Hubert claims that one track of events led to his termination while the Board
of Education claims that the other track led to his termination. On January 23, 2015, apparently
still being unsatisfied with the school bus vendors’ fraudulent conduct and with his lack of progress
in exposing their fraud, Hubert contacted the Safety and Security Department of Chicago Public
Schools seeking to access surveillance video. According to Hubert, Osland did not appreciate
Hubert’s course of action. Hubert claims that when he took the step of pressing his concerns
outside Osland’s department, he had finally gone too far in advancing his concerns about the
fraudulent activity and, thus, his employment was terminated.
¶ 14 Meanwhile, however, on January 28, 2015, Osland met with both Hubert and Kristin
Lausman, one of the women with whom Hubert had documented verbal altercations. Osland
attempted to smooth things over between the two. At the end of the meeting, Hubert and Lausman
shook hands and agreed to work better together from that point forward. However, a week later,
on February 6, 2015, Hubert turned around and forwarded Lausman a 2014 email that was critical
of her job performance and questioned her integrity. The Board of Education claims that Hubert
had finally gone too far in mistreating his colleagues and engaging in inappropriate workplace
behavior and, thus, his employment was terminated.
¶ 15 On February 12, 2015, Osland informed Hubert that he was fired. Osland cited
insubordination and divisive conduct with coworkers as the reason for Hubert’s employment being
terminated. Hubert believes he was fired for his relentless investigation into the fraudulent activity
by the school bus vendors and for engaging resources outside Osland’s department to address the
corrupt practices.
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¶ 16 After being fired, Hubert filed this case. Hubert claims that he is entitled to recover for
retaliatory discharge and for violations of the Illinois Whistleblower Act (740 ILCS 174/1 et seq.)
(West 2016). The Board of Education of the City of Chicago moved for summary judgment. The
Board of Education argued that Hubert was fired for insubordination and for engaging in
unprofessional conduct, not for engaging in protected activity. The trial court agreed with the
Board of Education and granted its motion for summary judgment. In ruling in the Board of
Education’s favor, the trial court focused on causation, and it found that there was no genuine issue
of material fact regarding the Board’s motive for firing Hubert. Hubert appeals.
¶ 17 II. ANALYSIS
¶ 18 Hubert appeals from the trial court’s order granting the Board of Education’s motion for
summary judgment. Summary judgment is appropriate when the pleadings, depositions,
admissions and affidavits, viewed in a light most favorable to the nonmovant, fail to establish that
a genuine issue of material fact exists, thereby entitling the moving party to judgment as a matter
of law. 735 ILCS 5/2-1005 (West 2012); Fox v. Seiden, 2016 IL App (1st) 141984, ¶ 12. If disputes
as to material facts exist or if reasonable minds may differ with respect to the inferences drawn
from the evidence, summary judgment may not be granted. Fox, 2016 IL App (1st) 141984, ¶ 12.
We review a trial court’s decision to grant summary judgment de novo. Illinois Tool Works Inc. v.
Travelers Casualty & Surety Co., 2015 IL App (1st) 132350, ¶ 8.
¶ 19 Hubert’s complaint contains two causes of action: retaliatory discharge and violation of the
Illinois Whistleblower Act (740 ILCS 174/1 et seq.) (West 2016). We begin with addressing the
propriety of the trial court granting summary judgment in favor of the Board of Education on
Hubert’s claim for retaliatory discharge.
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¶ 20 To establish a claim for retaliatory discharge, a plaintiff must establish that (1) the
employer discharged the plaintiff, (2) in retaliation for the plaintiff’s protected activities, and (3)
the discharge violates a clear mandate of public policy. Fox v. Adams & Associates, Inc., 2020 IL
App (1st) 182470, ¶ 62. In this case, the parties agree that only the second element, causation, is
at issue, and they limit their arguments to that issue on appeal. The trial court held that, as a matter
of law, Hubert could not prove that his termination was the result of retaliation for Hubert reporting
criminal activity.
¶ 21 Our supreme court has made clear that an employee’s cooperation with law enforcement
to root out criminal activity is in accord with the public policy of Illinois. Palmateer v.
International Harvester Co., 85 Ill. 2d 124, 132-33 (1981). An employer may not discharge an
employee for cooperating with law enforcement. Id. at 133. Hubert contends that he was fired for
just that, so he argues that the trial court should not have granted summary judgment against him.
¶ 22 The Board of Education maintains that Hubert was fired for a non-retaliatory, non-
pretextual reason. The Board argues that Hubert cannot establish the causation element of his
retaliatory discharge claim—that it acted with a retaliatory motive. When deciding element of
causation in a retaliatory discharge cases, the ultimate issue to be decided is the employer’s motive
in discharging the employee. Michael v. Precision Alliance Group, LLC, 2014 IL 117376, ¶ 31.
The element of causation is not met if the employer has a valid, nonpretextual basis for discharging
the employee. Grabs v. Safeway, Inc., 395 Ill. App. 3d 286, 291 (2009).
¶ 23 The Board of Education contends that the undisputed evidence in the record establishes
that Hubert’s employment was terminated for legitimate, non-retaliatory reasons—insubordination
and inappropriate behavior towards coworkers. The Board points to the record evidence that
several of Hubert’s colleagues and subordinates reported that he acted inappropriately and
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No. 1-19-0790
unprofessionally. Osland, Hubert’s supervisor, admonished Hubert on multiple occasions about
his coarse workplace demeanor and his proclivity to lose his temper with colleagues. Consistent
with Osland’s deposition testimony, the Board of Education argues that Hubert’s email to Lausman
was the final straw and that Hubert deserved to be fired.
¶ 24 We are presented with a classic case of both sides presenting evidence to support their
positions and advancing a narrative that could be true. In such a case, summary judgment is not
appropriate. Our role in reviewing a summary judgment decision is not to evaluate the quality of
the evidence or argument, but rather to evaluate whether any evidence exists from which a fact-
finder could conclude that the party proved the elements of the cause of action. Merca v. Rhodes,
2011 IL App (1st) 102234, ¶ 46.
¶ 25 In a retaliatory discharge action, the issue of an employer’s true motive in terminating an
employee is a question of material fact, not normally suitable for resolution on summary judgment.
Hugo v. Tomaszewski, 155 Ill. App. 3d 906, 909-10 (1987); Miller v. J.M. Jones Co., 225 Ill. App.
3d 799, 804 (1992). In this case, Hubert has presented evidence that he continually pressed his
concerns about fraud and corruption among school bus vendors contracting with Chicago Public
Schools. Hubert ruffled feathers along the way. For example, Osland had to remove Hubert from
his role in the 2013 bus vendor bidding process because Hubert brazenly confronted a vendor about
its fraudulent activity. Hubert did not see the other members of his department taking the fraud
seriously, so he continued to press forward even when others seemed hesitant to meaningfully
address the issue. Osland apparently wanted to move Hubert to a warehouse job, and he eventually
did move Hubert to different duties where Hubert would not have contact with vendors.
Furthermore, Hubert and Osland had disagreements about how to deal with the fraud that
continued even after Hubert made everyone aware of what was occurring. So, frustrated with the
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inaction, Hubert went to law enforcement with his concerns. He later went outside of Osland’s
department within Chicago Public Schools with his concerns and he was fired three weeks later.
¶ 26 There is evidence on file that evidences Osland’s frustration with Hubert disclosing
information about vendor fraud and also about the means by which Hubert was trying to expose
and eliminate the fraudulent activity. Osland also expressed frustration with Hubert making
departmental business public, and he cited those frustrations as support for Hubert’s termination.
A vendor also contacted Osland to express frustration with Hubert because the vendor found
Hubert to be unwilling to bend to vendor demands—demands that Hubert construed to constitute
complicity to theft from Chicago Public Schools. Hubert averred in an affidavit submitted in
response to the motion for summary judgment that Osland was displeased with Hubert’s dogged
attitude to eliminating theft, and Osland ordered a halt to Hubert’s initiation of an audit of the
vendors’ overbilling. Hubert contends that it was his crusade to eliminate theft from the schools,
which no one else seemed to prioritize, that bothered and scared Osland and that led to the
termination of his employment.
¶ 27 On the other side of the equation, Hubert clearly had trouble comporting his behavior to
the workplace standards that were expected of him. He had trouble getting along with his
colleagues, his subordinates, and his superiors. Even though Osland occasionally praised Hubert
for his abilities, the record clearly indicates that Osland had to repeatedly admonish Hubert about
his improper behavior. Hubert’s colleagues that submitted evidence in this case resoundingly
stated that he was difficult to work with and that he made their jobs stressful. The record also
reflects that Hubert had verbal altercations with multiple fellow employees and that he did not act
collegially on many occasions. There is record evidence that Hubert created a stressful work
environment and that he treated his colleagues condescendingly, among other things.
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¶ 28 Both the above possibilities—Hubert’s narrative and the Board of Education’s narrative—
constitute reasonable explanations for why Hubert’s employment might have been terminated.
Perhaps it is just a coincidence that Hubert’s employment was terminated at the time it was
terminated and under the circumstances presented. But in a retaliatory discharge case, causation
may be demonstrated by circumstantial evidence. Hugo, 155 Ill. App. 3d at 910. A jury could
believe the narrative advanced by Hubert, and that narrative is supported by at least some
evidentiary facts and the inferences that could be drawn therefrom.
¶ 29 The record seems to provide sufficient cause for the termination of Hubert’s employment
should a fact finder credit the testimony about Hubert’s inappropriate workplace demeanor. But it
is for a jury to decide the real reason for the termination of Hubert’s employment. Zuccolo v.
Hannah Marine Corp., 387 Ill. App. 3d 561, 568 (2008). Was it really insubordination and
Hubert’s workplace demeanor or is that pretext? As the supreme court explained in Michael,
“when an employer proffers a valid reason for the employee’s discharge, this does not
automatically ‘defeat a retaliatory discharge claim.’ However, where, as [t]here, the employer
chooses to come forward with a valid, nonpretextual basis for discharging its employees and the
trier of fact believes it, the causation element required for proving a retaliatory discharge claim is
not met.” (Emphasis in original). Michael, 2014 IL 117376, ¶ 36. Here, we must allow the trier of
fact to hear the conflicting evidence supporting Hubert’s position and the Board of Education’s
position respectively and then decide which version of events to believe. We cannot say at this
stage of the case that the Board of Education has affirmatively proved that its motive for firing
Hubert was, in fact, his inappropriate workplace behavior.
¶ 30 Hubert has also submitted evidence that, though admittedly not ideal, Osland and the
Department had sometimes praised his aggressive approach to his work. Hubert received praise
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for his relentless efforts and his “take no prisoners approach.” The Board of Education has not
demonstrated that there is no genuine issue of fact regarding pretext. See Herman v. Power
Maintenance and Constructors, LLC, 388 Ill. App. 3d 352, 364 (2009). Hubert averred in an
affidavit submitted in response to the motion for summary judgment that Osland came to him after
he took his concerns to a different department in CPS and stated his displeasure with Hubert’s
conduct. Hubert contends that by taking his concerns outside of Osland’s department, Hubert
might have created the impression that Osland could not manage his department and, thus, Osland
was threatened. Then it was just three weeks later that Hubert’s employment was terminated.
¶ 31 The Board of Education contends that summary judgment in its favor was also proper
because none of the decisionmakers involved in terminating Hubert’s employment knew about his
cooperation with law enforcement when they made the decision to fire him. But Osland was one
of the decisionmakers in Hubert’s termination and the evidence shows that Osland set the wheels
in motion for Hubert being fired. Osland initiated the termination procedures by contacting Tim
Cawley and stating that Hubert should be fired. Osland knew that Hubert had worked with the
inspector general and it is Hubert’s belief that Osland knew Hubert had worked with law
enforcement and was otherwise going outside their department and making noise about the
fraudulent activity. Hubert received the email from Osland about another government
whistleblower being fired and Hubert claims that Osland was upset about Hubert going to the
Safety and Security Department to further investigate the vendors.
¶ 32 Even if Osland did not know specifically that Hubert was talking to law enforcement,
Hubert was a government employee supposedly working to root out fraud against the government
and the taxpayers. See Valentino v. Village of South Chicago Heights, 575 F. 3d 664, 678 (7th Cir.
2009) (applying Illinois law) (“[t]erminating a government employee for speaking out against
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corruption in her workplace is surely contrary to clearly mandated public policy (the intersection
of the First Amendment and the public’s right not to be defrauded by its government)[.]”); see also
Brame v. City of North Chicago, 2011 IL App (2d) 100760, ¶ 8. Hubert’s superiors were surely
aware that he was pressing the issue of fraudulent activity by the school bus vendors, and there is
evidence that Hubert’s pursuit of the fraud was bothersome to members of the department, at least
when the evidence is considered in a light most favorable to Hubert.
¶ 33 In a retaliatory discharge case, the burden of proof and persuasion shifts back and forth
between the discharged employee and the former employer. The former employee must make out
a prima facie case that his employment was terminated in retaliation for protected activity and in
violation of public policy. Fox, 2020 IL App (1st) 182470, ¶ 62. Then, if the employer can
articulate a legitimate nondiscriminatory reason for the employee’s discharge, the burden shifts
back to the former employee (Clark Oil & Refinery Corp. v. Golden, 114 Ill. App. 3d 300, 308
(1983)) who has “an opportunity to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not true, but a pretext” for an otherwise impermissible
retaliatory termination. Gomez v. The Finishing Co., 369 Ill. App. 3d 711, 719 (2006). But the
plaintiff does not need to prove anything at the summary judgment stage. When the trial court
granted summary judgment here, it deprived Hubert of that previously-mentioned “opportunity to
prove” that the real reason for his discharge was retaliation, and that insubordination and divisive
workplace conduct were a mere pretext for his termination. The trial court accepted the Board of
Education’s explanation, but in doing so answered a question of fact that should have been reserved
for further proceedings.
¶ 34 Summary judgment is a drastic means of disposing of litigation. Andrews v. Metropolitan
Water Reclamation District of Greater Chicago, 2019 IL 124283, ¶ 20. It should only be granted
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when a party’s right to judgment is clear and free from doubt. Jones v. Pneumo Abex LLC, 2019
IL 123895, ¶ 39. In this case, the Board has not affirmatively proved that Hubert cannot make out
his retaliatory discharge claim. Being that there is some evidence on file to support Hubert’s
position on each element of a claim for retaliatory discharge and that he has presented some
evidence to create a question of fact about the possibility of pretext, the Board of Education was
not entitled to summary judgment. As in Zuccolo, a rational trier of fact could find that the Board
of Education had a retaliatory motive in discharging Hubert. See Zuccolo, 387 Ill. App. 3d at 569.
Consequently, a disputed question of fact as to the Board of Education’s motivation in terminating
Hubert still remains, thereby precluding summary judgment. Id.
¶ 35 The analysis of the propriety of the trial court granting summary judgment against Hubert
on his claim for violations of the Illinois Whistleblower Act (740 ILCS 174/1 et seq.) (West 2016)
is essentially the same as the analysis set forth above in regard to Hubert’s retaliatory discharge
claim. For both claims, the trial court ruled that Hubert could not establish causation. Under the
Illinois Whistleblower Act, “[a]n employer may not retaliate against an employee for disclosing
information to a government or law enforcement agency, where the employee has reasonable cause
to believe that the information discloses a violation of a State or federal law, rule, or regulation.”
740 ILCS 174/15(b) (West 2016).
¶ 36 The trial court’s conclusion on this claim was that Hubert could not show that his
termination was done in retaliation for his whistleblowing activity because the Board of Education
had demonstrated that Hubert was insubordinate and engaged in inappropriate workplace conduct.
However, as discussed at length above, there is a genuine issue of material fact as to the Board of
Education’s true motive for firing Hubert. Both sides have submitted evidence in support of their
positions on the Board’s motive and it is for a fact finder to determine the reason behind Hubert
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being discharged. The Board’s motive is a genuine issue of material fact. Because genuine issues
of material fact remain, the trial court should not have granted summary judgment on Hubert’s
claim for violations of the Illinois Whistleblower Act (740 ILCS 174/1 et seq.) (West 2016).
¶ 37 III. CONCLUSION
¶ 38 Accordingly, we reverse, and we remand for further proceedings.
¶ 39 Reversed and remanded.
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