Taylor v. The Board of Education of the City of Chicago , 2014 IL App (1st) 123744 ( 2014 )

Illinois Official Reports
Appellate Court
Taylor v. Board of Education of the City of Chicago,
2014 IL App (1st) 123744
Appellate Court KENNETH TAYLOR, Plaintiff-Appellee, v. THE BOARD OF
Caption EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellant.
District & No. First District, First Division
Docket Nos. 1-12-3744, 1-13-0605 cons.
Filed May 6, 2014
Rehearing denied June 5, 2014
Held In an action for retaliatory discharge and a violation of the
(Note: This syllabus Whistleblower Act filed against defendant school board by an
constitutes no part of the assistant principal based on allegations that his contract was not
opinion of the court but renewed after he reported that a special education teacher allegedly
has been prepared by the abused a student, the judgment for plaintiff on the retaliatory
Reporter of Decisions discharge claim was reversed, since retaliatory discharge actions
for the convenience of apply only to at-will employees and plaintiff worked under a
the reader.)
contractual term of employment that was not renewed, and although
plaintiff proved his claim under the Act, the reversal of the judgment
on the retaliatory discharge claim required that the cause be remanded
for a new trial on the damages awarded under the Act.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-L-239; the
Review Hon. Sanjay Tailor and the Hon. Elizabeth M. Budzinski, Judges,
presiding.
Judgment No. 1-12-3744, Affirmed in part, reversed in part, vacated in part, and
remanded.
No. 1-13-0605, Appeal dismissed.
Counsel on James L. Bebley and Lee Ann Lowder, both of the Board of Education
Appeal of the City of Chicago, for appellant.
Kent D. Sinson, of Sinson & Sinson, Ltd., David Hemenway, of David
Hemenway, P.C., and Rima Kapitan, of Kapitan Law Office, all of
Chicago, for appellee.
Panel JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Presiding Justice Connors and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 The plaintiff, Kenneth Taylor, filed suit against the defendant, the Board of Education of
the City of Chicago (Board), seeking damages for retaliatory discharge and violation of the
Illinois Whistleblower Act (Act) (740 ILCS 174/1 et seq. (West 2010)), claiming that he was
discharged from his employment and subjected to an ongoing campaign of retaliatory acts by
the Board because he reported an act of alleged abuse perpetrated on a student by a special
education teacher. A jury awarded the plaintiff $1,000,500 in damages, which includes
compensatory damages arising from the discharge, and damages for emotional distress
resulting from the discharge and from the Board’s retaliatory conduct in the period leading to
the discharge, from January 1, 2008, through June 30, 2009. The court certified this matter for
appeal under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), but retained jurisdiction
to consider a motion by the plaintiff for attorney fees, costs, and prejudgment interest under the
Act. While the plaintiff’s motion was pending, the Board filed a notice of appeal from the
underlying judgment. The trial court subsequently granted the plaintiff’s motion for fees, costs,
and interest, the Board appealed, and the matters were consolidated.
¶2 On appeal, the Board argues that: (1) the circuit court erred in denying its motions for
summary judgment, directed verdict, and judgment n.o.v. on the plaintiff’s claim for retaliatory
discharge; (2) the court’s erroneous denial of its motion in limine seeking to exclude evidence
of retaliatory acts occurring outside of the statute of limitations tainted the jury’s verdict; and
(3) a new trial is required because the verdict form submitted to the jury allowed one recovery
for two distinct claims that arose from separate occurrences. For the reasons that follow, we
reverse the judgment of the circuit court on the plaintiff’s claim for retaliatory discharge,
affirm the finding of the Board’s liability for the claim under the Act, vacate the damage
award, and remand this case for a new trial exclusively on the question of damages under the
Act.
-2-
¶3 The plaintiff initiated this action on January 9, 2010, and filed an amended complaint on
January 24, 2010. In his amended complaint, the plaintiff pled one count for retaliatory
discharge and one count under the Act, seeking damages resulting from his alleged discharge,
as well as from a pattern of ongoing retaliatory conduct by the Board and its employees in the
months following his May 16, 2007, report to the Illinois Department of Children and Family
Services (DCFS) of child abuse, and continuing until his employment ended on June 30, 2009.
The alleged retaliatory conduct included a campaign of petty harassment, false charges of
misconduct, repeated false allegations that the plaintiff was absent from work without leave
(AWOL), and his effective demotion. The Board moved for summary judgment, arguing, in
relevant part, that the plaintiff was not an at-will employee and, therefore, could not maintain
an action for retaliatory discharge. Instead, the Board maintained that he was subject to a
four-year term of employment which was simply not renewed as permitted under Board
policy. The Board further argued that the Act did not apply to government entities at the time
that the plaintiff reported the abuse at issue. On May 29, 2012, the court denied the motion, and
the case proceeded to trial before a jury on both counts of the plaintiff’s amended complaint.
¶4 Prior to trial, the Board filed a motion in limine seeking to bar any evidence or argument as
to its alleged retaliatory acts occurring prior to January 9, 2009, one year before the plaintiff
filed his claim under the Act. See 745 ILCS 10/8-101(a) (West 2008). With regard to the
evidence of retaliatory conduct from May through December of 2007, the Board additionally
sought exclusion on the basis that the Act did not create a right of action against public
employers until January 1, 2008. See Pub. Act 95-128 (eff. Jan. 1, 2008) (amending 740 ILCS
174/5 (West 2006)). The court denied the motion, but instructed the jury that the plaintiff could
not recover damages under the Act for any claimed retaliatory acts occurring prior to January
1, 2008.
¶5 The evidence at trial may be summarized as follows. The plaintiff commenced his
employment with the Board in the fall of 1990, as a teacher at Robeson High School. By 1992,
he had attained “contractual continued service,” or tenure. At some point thereafter, the
plaintiff became interested in educational administration and obtained a master’s degree in
school leadership, along with the requisite certification to serve as a principal or assistant
principal. The plaintiff testified that, during his time as a teacher, he was consistently evaluated
as “excellent” or better, and received the highest possible rating of “superior” during his final
month of teaching in June of 2001.
¶6 In August 2001, the Board hired the plaintiff to serve as the assistant principal at Goodlow
Magnet School (Goodlow), an elementary school for students from pre-kindergarten through
eighth grade. Upon accepting the assistant principal position, the plaintiff relinquished his
tenured status. The plaintiff was selected for the assistant principal position by Goodlow’s
principal, Patricia Lewis, who had been hired by the Board the previous month. Lewis was
hired as principal at Goodlow under an employment contract with the Board that was governed
by the Board’s rules related to personnel policies (Board rules). The Board rules state that
principals are to serve for a term of four years’ duration, after which his or her contract could
be terminated “for cause.” The Board rules authorized the principal, at the inception of his or
her four-year term, to either select and appoint a new assistant principal or to retain an
-3-
incumbent. If the principal elects not to retain the incumbent, he or she is required to inform the
incumbent within 30 days of the effective date of her contract. If the principal chooses to retain
the incumbent, however, no further action is necessary. Lewis retained the plaintiff through her
initial four-year term, and again in 2005, when her contract was renewed for a second four-year
term.
¶7 As an assistant principal, the plaintiff’s responsibilities included handling discipline, acting
as a mentor and role model for students, assisting Lewis in all matters related to school
operations and security, and “tak[ing] charge of the school” whenever Lewis was out of the
building. The plaintiff was placed in charge of Goodlow’s “school based problem solving”
program, an intervention plan for children with behavioral issues. Additionally, the plaintiff
was designated a “mandated reporter” of child abuse under the Abused and Neglected Child
Reporting Act (325 ILCS 5/4 (West 2006)), which requires all school personnel to
immediately report any reasonable suspicion of child abuse to the DCFS. The Board’s policy
provided that the failure of a mandated reporter to report abuse could result in sanctions. As
part of his training, the plaintiff was given materials detailing this policy. Included in the
policy’s definition of “abused child” is any child subjected to “excessive corporal punishment”
at the hands of a person responsible for the child’s welfare. The policy also stated that, when a
teacher or administrator was alleged to be the perpetrator of the abuse, the principal or assistant
principal should initially conduct a “brief fact-finding inquiry with the alleged victim, the
alleged offender, and any witnesses,” so that the principal could prepare an incident report for
the Chicago Public Schools. The assistant principal was also required to contact the police, and
then forward the incident report along with any police report to the DCFS. Finally, the policy
expressly barred any teachers or administrators from being “discriminated against or
disciplined for making a good faith report to DCFS.”
¶8 On May 16, 2007, Lewis was absent from Goodlow, and the plaintiff was acting as
principal in her place. He was in his office when Arlene McMurray, a veteran reading teacher,
came in and informed him that she was walking down the corridor when she saw a special
education teacher swiftly kick a second-grade boy in the back of his legs, causing the child to
fall backwards and strike his head on the floor. The child, “D.D.,” had been diagnosed with
ADHD and bipolar disorder and was participating in Goodlow’s problem solving program.
McMurray immediately confronted the special education teacher and asked her what she was
doing, but the teacher looked at her in a startled manner and did not respond. McMurray related
the incident to another nearby teacher, who told her that she was required to report suspected
abuse.
¶9 The plaintiff testified that he asked McMurray several times to repeat what she had seen,
and each time she emphasized that she had watched the special education teacher kick the legs
out from under the child in a sweeping motion and that the student had fallen to the ground,
bumping his head. The plaintiff explained to McMurray that, under Board policy, she was a
mandated reporter of child abuse and was required to contact the DCFS hotline to report the
alleged abuse she had witnessed. McMurray refused, however, contending that she had already
fulfilled her reporting obligation by informing the plaintiff of what she had seen. The plaintiff
informed her that she had an independent obligation to report the abuse, but McMurray again
-4-
refused. The plaintiff called the Board’s law department, and an investigator spoke directly
with McMurray about her responsibility to report the suspected abuse. When she again refused
to report the abuse to the DCFS, the investigator instructed the plaintiff to make the report. In
her testimony, McMurray explained that she was reluctant to report the abuse herself, because
she feared disciplinary action from Lewis.
¶ 10 The plaintiff testified that he subsequently spoke with D.D. about the incident in the
presence of another staff member. The child related that the special education teacher had
kicked his legs out from under him, causing him to fall on his back. The plaintiff examined the
back of D.D.’s head and found a small lump. He then sent D.D. back to class. The plaintiff
understood that Board policy required him to report the abuse immediately, but that it also
precluded him from notifying the child’s parent or the suspected perpetrator of the allegations.
The plaintiff reported the suspected abuse to the DCFS hotline and to the police department.
He later prepared an incident report which he provided to “other Board departments,” as
mandated by Board policy. According to the plaintiff, based upon his training, his knowledge
of Board requirements, and state law, he believed that he could lose his job if he did not report
the abuse.
¶ 11 Next, the plaintiff attempted to contact Lewis. He testified that, when he reached her, she
severely reprimanded him for reporting the incident to the DCFS and the police. Lewis told
plaintiff that he had mishandled the situation because the special education teacher was a
trained therapist who was engaging in an effective form of “role playing” therapy with D.D.,
which had been approved by the child’s mother. The plaintiff testified, however, that in his
experience with the school-based problem solving program, he was unaware of any therapy
that condoned intentional tripping or use of force against a student. Lewis told the plaintiff that
she would take care of the matter the following day and then she hung up on the plaintiff when
he tried to further explain his position.
¶ 12 According to the plaintiff, when Lewis returned to school on May 17, 2007, she was hostile
and uncommunicative toward him and would no longer discuss the matter. Prior to the abuse
report, Lewis had always been supportive of the plaintiff and the two enjoyed a friendly
professional relationship. The record indicates that, in each of his evaluations during the period
covering the 2001-02 through the 2005-06 school years, the plaintiff received very favorable
ratings, meeting or exceeding Lewis’s expectations. The plaintiff testified that, from the time
that he made the abuse report to the DCFS, however, both Lewis and the Board began a
campaign of harassing behavior against him.
¶ 13 On May 18, 2007, the plaintiff was attending a professional development program when he
was unexpectedly contacted by Lewis’s assistant and told to return to Goodlow. The plaintiff
testified that this was the second half of a two-part program that had previously been approved
by Lewis and that the program was required for him to retain the necessary certification to
serve as a principal or an assistant principal. The plaintiff testified that Lewis was also
attending the program, but she did not speak to him.
¶ 14 On August 16, 2007, Lewis notified the plaintiff that she was lowering the performance
rating on his annual evaluation for the 2006-07 school year. As a basis for her decision, Lewis
told the plaintiff that he had, among other infractions: failed to properly close out summer
-5-
school for 2007; left school early or taken days off without properly notifying her; been
confrontational with, and failed to get along with, several coworkers; failed to participate in
staff development and after-school parent activities; and mishandled the report to the DCFS,
by failing to properly investigate the matter when there were three teachers involved. The
plaintiff denied that these allegations were true and testified that he believed his lowered rating
was solely the result of his report of the suspected abuse. According to the plaintiff, he had
been evaluated every year from 2001 through 2005, and his evaluations were uniformly
positive. He had never been verbally reprimanded or otherwise disciplined under the Board’s
“Employee Discipline and Due Process Policy” (employee discipline policy). When the
plaintiff received his 2006-07 ratings, he found that they were “dismal,” and he was confused
and upset because he had done nothing differently than in prior years.
¶ 15 The plaintiff was also informed that he was being “diminished” to the position of a
full-time social studies teacher. He was given written instruction to prepare weekly lesson
plans, enter grades, and to turn in all of his keys except those to his classroom. The plaintiff
testified that he was never consulted about this decision and that he had neither the training nor
the required certification to teach social studies. He stated that, despite his lack of qualification,
he attempted to research the subject and get lesson plans from another teacher. However, he
never received the lesson plans or any guidance from Lewis or anyone else. According to the
plaintiff, he was ineffective as a social studies teacher and received a “write-up” around
November 2007, for failure to turn in lesson plans.
¶ 16 The plaintiff testified that, about August of 2007, he began suffering from back problems,
causing intermittent excruciating pain. In addition, his mother was suffering from deteriorating
health. On September 17, 2007, he notified Lewis that he was taking a five-week leave of
absence because of his back pain. On September 28, 2007, Lewis wrote a letter to one of the
Board’s labor relations attorneys informing him of the plaintiff’s absence and describing him
as “AWOL.” The plaintiff testified that, at this point, he knew he was being subjected to
retaliatory treatment. The plaintiff contacted Tom Krieger, a labor relations employee of the
Board, stating that he had applied for family medical leave and that he was not AWOL.
According to the plaintiff, Krieger told him that nothing was being done about Lewis’s letter.
Krieger also inquired whether the plaintiff was looking for another job, suggesting that he
“wouldn’t want to be somewhere where [he is] not wanted.” The plaintiff returned to school in
late October 2007, from his medical leave.
¶ 17 On September 26, 2007, the plaintiff wrote a letter to the Board’s labor relations
department informing them that he believed Lewis had retaliated against him because he
reported the suspected abuse of D.D. Attached to the letter was the correspondence from Lewis
notifying the plaintiff of his lowered evaluation. The Board commenced an inquiry into the
plaintiff’s claims. One of its investigators Ray Poloko, was assigned to the matter. When
efforts to contact the plaintiff were unsuccessful, Poloko’s investigation consisted solely of an
interview with Lewis. In her interview, Lewis reiterated the reasons for her decision to lower
the plaintiff’s rating and she also provided documentation supporting her rationale, including
several notes from the special education teacher who had kicked D.D., revealing disputes
between herself and the plaintiff, some of which predated the abuse report. The documents also
-6-
showed that, at the time of the alleged abuse, the special education teacher was engaged in a
form of empathy training with D.D., who had been physically aggressive toward other students
and had proven to be a consistent disciplinary problem. On October 29, 2007, Poloko issued a
written report, concluding that the plaintiff’s claim of retaliation was unfounded and that he
made allegations leading to the investigation which “he knew or should have known were
false.” The plaintiff testified that he was upset to learn that the legal department investigator
whom he had contacted for guidance on the day of the abuse report had concurred in the
finding that he made false statements.
¶ 18 In her testimony, Lewis admitted that the plaintiff was correct in notifying the DCFS of the
suspected abuse of D.D., because that was what mandated reporters were trained to do and
what the law required. However, Lewis also acknowledged her prior statement that the
plaintiff had not properly handled the matter, because he failed to conduct a brief fact-finding
inquiry with the victim, the offender, and other witnesses, as stated in the policy materials. She
testified that the police came to Goodlow on May 18, 2007, to investigate the abuse report and
determined that the report was unfounded. Lewis also described how the plaintiff had failed to
properly close out summer school, neglected to turn in required reports, was absent or left the
building without notifying her, and was unable to get along with other school personnel. She
admitted, however, that the plaintiff had been on approved medical leave beginning September
17, 2007.
¶ 19 In December of 2007, disciplinary action was initiated against the plaintiff for
“incompetently or inefficiently” performing his duties and making false statements leading to
the investigation of Lewis. Following a hearing, the plaintiff was issued a written reprimand.
¶ 20 On December 27, 2007, the plaintiff’s mother died, and he took a bereavement leave of
absence until early January of 2008. On January 9, 2008, after the plaintiff returned from
bereavement leave, Lewis sat in to observe his social studies class. Lewis testified that, at the
beginning of class, the plaintiff was talking on his telephone with his back to the class and that
he never addressed the students or responded to their questions. According to Lewis, the
plaintiff then moved to his computer, again without any instruction to the class. According to
the plaintiff, however, Lewis’s statements were untrue; he actually was on his computer
conducting research and trying to devise lesson plans while the students were working on an
assignment he had given them. Based upon her observations, and unbeknownst to the plaintiff,
Lewis filed a written request for an emergency removal of the plaintiff from Goodlow. The
request also noted that the plaintiff had been absent for 58 days.
¶ 21 On January 14, 2008, area instructional officer Analila Chico sent the plaintiff a
prediscipline notice, alleging excessive absence or tardiness, noting that since October 22,
2007, he had been absent approximately 36 days. The plaintiff denied these assertions,
maintaining he was on approved medical and bereavement leaves.
¶ 22 On January 15, 2008, Lewis reassigned the plaintiff from teaching duties to supervising
students who were placed on in-school suspension. According to the plaintiff, this position did
not exist prior to this time. The detention room in which the plaintiff was assigned had no
teacher’s desk and no comfortable chair. The plaintiff testified that he was taunted by the
students, who threw items at him, used vulgar language, and stated that he was nothing but a
-7-
substitute teacher and that they no longer had to listen to him. Lewis also instructed the
plaintiff to turn in all of his extra keys, including his elevator key, unless he could produce a
physician’s note.
¶ 23 On February 15, 2008, Lewis initiated discipline against the plaintiff for allegedly
grabbing a student and “slinging her book bag.” The discipline notice stated that the student
had disobeyed the plaintiff’s instruction. The plaintiff denied grabbing the student and testified
that Lewis never sought his version of events.
¶ 24 In May 2008, Lewis again attempted to discipline the plaintiff, charging him with failing to
supervise students and of assaulting a student. According to the plaintiff, he was trying to break
up a fight between two students when he was “bum rushed” by one student, reinjuring his back.
He filed a police report as to the incident, contacted an ambulance, and was taken to the
hospital. Contrary to the usual practice, he was not accompanied by any other school personnel
when he went to the hospital. The plaintiff later qualified for workers’ compensation as a result
of his injuries. The plaintiff testified that he received a letter from the State’s Attorney’s office
concerning the incident, but elected not to prosecute the student, who was receiving help for
anger-management issues. The plaintiff also learned that someone had filed assault charges
against him as a result of the incident; however, those charges were ultimately dismissed.
Eventually, there was a finding by the Board that he was injured breaking up a student fight.
Following the incident, the plaintiff went on a medical and family leave of absence from May
14 through mid-December of 2008.
¶ 25 In subsequent correspondence, Chico wrote to Krieger stating that “the issues regarding
[the plaintiff] are never-ending” and that she did not have time to handle the constant
disciplinary situations that “[Lewis] wants taken against him.” On May 15, 2008, Krieger
responded that, under the disciplinary code, all disciplinary action beyond a cautionary notice
had to come from Chico. Krieger encouraged Chico to follow through on the prior disciplinary
action, noting that they “need to get a couple suspensions in the book on this guy so that we can
eventually seek his termination.”
¶ 26 When the plaintiff attempted to return from medical leave in mid-December of 2008, the
Board’s human resources department informed him that he was not shown to be an employee
at Goodlow. The plaintiff subsequently learned that he was no longer attached to Goodlow and
would have to report any further issues to the Board. While the plaintiff was on leave, he was
replaced by an interim assistant principal on the basis that, according to Lewis, the plaintiff had
overextended his leave of absence. Lewis also stated that she did not want the plaintiff in her
building because he had “assault charges pending from the counsel general.” However, the
plaintiff testified he had no charges pending. Further, the plaintiff denied ever being notified
by human resources department that he had overextended his medical leave.
¶ 27 On December 16, 2008, Lewis was offered another four-year contract as principal of
Goodlow. The human resources department advised Lewis to reinstate the plaintiff as assistant
principal, on the basis that “[h]is job protection is tied to your current contract.”
¶ 28 When the plaintiff returned to his position in January 2009, Lewis directed him not to walk
around the school and to refrain from speaking to any teachers, students, or parents. The
plaintiff testified that as he encountered teachers, staff, and the interim assistant principal, all
-8-
of whom expressed surprise to see him, stating that they had been informed at staff and school
council meetings that he had been fired.
¶ 29 On January 16, 2009, Lewis notified the plaintiff that “pursuant to the guidelines of the
principal contract *** that you are officially release [sic] from this new contract approved by
Goodlow LSC December 16, 2008,” effective July 1, 2009.
¶ 30 From his return in January until after his departure from Goodlow in June 2009, the
plaintiff was subjected to disciplinary censures for alleged negligence in supervising students
and insubordination. In one instance, the plaintiff had attempted to discipline a student for
sexually harassing a fellow student, but it was the plaintiff who was disciplined, not the
offending student. In another instance, the plaintiff attempted to break up a fight between three
students as there were no security officers present. He again sustained injury to his back
requiring a leave of absence, for which he received a written reprimand from Chico.
¶ 31 Following the close of the evidence, the Board moved for directed verdict, which the trial
court denied. Following closing arguments, the jury returned a verdict for the plaintiff on both
his claim of retaliatory discharge and his claim for a violation of the Act, awarding damages in
the amount of $1,000,500. Subsequently, the trial court denied the Board’s motions for
judgment n.o.v., a new trial, and a remittitur. This appeal followed.
¶ 32 The Board first argues that the trial court erred in denying its motions for summary
judgment, directed verdict, and judgment n.o.v., on the plaintiff’s retaliatory discharge claim.
However, as there has been a trial on the merits in this case, the denial of the Board’s motions
for summary judgment and directed verdict have merged into the final judgment (Thurmond v.
Monroe, 235 Ill. App. 3d 281, 285 (1992); see also Wade v. Rich, 249 Ill. App. 3d 581, 591
(1993)). Consequently, our review is confined to the denial of the Board’s motion for judgment
n.o.v.
¶ 33 A judgment n.o.v. is proper only when all of the evidence, viewed in a light most favorable
to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that
evidence could ever stand. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d
147, 178 (2006) (quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)).
Where there is uncontradicted evidence, which, viewed most favorably to the plaintiff,
establishes a complete defense, the court is justified in granting the defendant’s motion for a
judgment n.o.v. Harris v. Thompson, 2012 IL 112525. As the denial of a motion for judgment
n.o.v. turns upon a question of law, we employ a de novo standard of review. Thornton v.
Garcini, 237 Ill. 2d 100, 107 (2009).
¶ 34 The Board argues that the plaintiff could not maintain an action for retaliatory discharge
because he was not an at-will employee. We agree. In order to state a valid claim for retaliatory
discharge, an employee must establish that (1) the employer discharged him, (2) in retaliation
for the employee’s activities, and (3) that the discharge violates a clearly mandated public
policy. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 505 (1991); Barr v. Kelso-Burnett Co.,
106 Ill. 2d 520, 529 (1985). Courts in this state have continued to maintain the narrow scope of
the retaliatory discharge action (see Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d
12, 19-20 (1998) (collecting cases); Barr, 106 Ill. 2d at 525; Bajalo v. Northwestern
University, 369 Ill. App. 3d 576 (2006)), confining the tort to the discharge of an at-will
-9-
employee. See, e.g., Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29 (1994); Krum v.
Chicago National League Ball Club, Inc., 365 Ill. App. 3d 785 (2006); Bajalo, 369 Ill. App. 3d
576.
¶ 35 In this case, the Board maintains that the plaintiff was not an at-will employee but rather
was hired for a definite term of employment, which expired at the end of the principal’s
four-year term, subject to a renewal at the discretion of the principal. The plaintiff disputes this
contention and asserts that he was an at-will employee, pointing to the plain language of the
Board rules, and particularly the fact that his employment as assistant principal could continue
automatically unless the Board took affirmative steps to end it. The evidence supports the
Board’s contention.
¶ 36 Section 4-3(c) of the Board rules states as follows:
“Assistant Principles. Assistant principals are full-time employees with administrative
certificates *** who are recommended for hire by a contract principal, [or] interim
principal *** to assist contract, interim, or acting principals in the performance of their
duties as the instructional and administrative leader of a student attendance center.
Assistant principals may be assigned direct instructional responsibilities.”
Assistant principals are categorized as “discretionary” or “quota.” The parties agree that the
plaintiff was a quota assistant principal, described as follows:
“Quota Assistant Principals. Quota assistant principals are 210-funded assistant
principals who are recommended for hire by a contract or interim principal and whose
term of assignment as a quota assistant principal ends at the expiration of the contract
principal’s contract, the retirement of the contract principal, the removal or dismissal
of the contract principal ***. Quota assistant principals whose term of assignment ends
under this Rule shall be displaced in accordance with the Board’s Assignment and
Appointment of Teachers and Principals Policy.” (Emphasis added.)
¶ 37 In support of his argument that his employment could continue indefinitely, the plaintiff
relies upon the following language from the Board’s “Assignment and Appointment of
Teachers and Principals Policy”:
“When a principal’s contract is renewed, the principal may select and appoint a new
assistant principal or retain the incumbent assistant principal. If the principal chooses to
retain the incumbent assistant principal, no formal action is required. If the principal
chooses not to retain the incumbent assistant principal, the principal must notify the
incumbent assistant principal in writing by the later of the two following dates: ***.”
¶ 38 The section goes on to require notification of nonretention within 30 days after the
principal’s contract is renewed, or 30 days prior to the expiration of the principal’s current
contract. If the assistant principal is not retained, he “will remain in his *** position” until the
last day of the pay period in which the principal’s contract expires. Finally, if the assistant
principal does not receive removal notification as required, the section states that he “shall be
retained” for the duration of the principal’s renewed contract.
¶ 39 Initially, we reject the plaintiff’s assertion that the above language confers any expectation
of employment beyond the four-year term. In considering this question, the test is whether the
- 10 -
terms governing the length of employment are sufficiently clear and definite to overcome the
assumption that the employment is at-will. Robinson v. BDO Seidman, LLP, 367 Ill. App. 3d
366 (2006). In this case, the Board rules unequivocally state that the assistant principal’s term
will end when the principal’s contract expires or when she retires or is otherwise removed.
This is sufficiently clear to establish employment for a set term; namely, the contract term of
the principal. See id.; Johnson v. George J. Ball, Inc., 248 Ill. App. 3d 859 (1993). We also
note that, in his testimony, the plaintiff admitted his understanding that he had a four-year term
and that Lewis could choose not to renew his employment at the end of that term.
¶ 40 Further, a review of the Board rules indicates that the plaintiff’s employment was not
at-will. Sections 4-1(c) and (c)(9) of the rules, governing personnel matters, dictate that the
Board “shall exercise all authority” to dismiss nonprobationary assistant principals “for
cause.” (Emphasis added.) Similarly, section 4-7(b)(4), pertaining to discipline and dismissal
of employees, states that assistant principals may be dismissed “for cause” upon
recommendation of the chief executive officer and in accordance with the Board’s discipline
policy. In section III(3) of the Board’s employee disciplinary policy, entitled “definitions,”
assistant principals are excluded from an enumeration of at-will employees, while acting or
associate principals are expressly included. These factors militate against the plaintiff’s
argument that he was terminable at will.
¶ 41 In addition, where an employer provides an employee with a clearly articulated progressive
disciplinary procedure, outlined in unequivocal and mandatory language, courts have found
the creation of contractual rights. See Long v. Tazewell/Pekin Consolidated Community
Center, 215 Ill. App. 3d 134 (1991); see also Duldulao v. Saint Mary of Nazareth Hospital
Center, 115 Ill. 2d 482, 489-90 (1987). Here, the Board’s employee discipline policy
articulates a detailed procedure under which assistant principals “shall” be notified in writing
prior to discipline and “shall” be afforded a hearing and ultimately disciplined if found to be
necessary. Suspension procedures, and rules outlining how an assistant principal “shall” be
discharged, are similarly controlled and detailed. Based upon these terms, we conclude that the
plaintiff was a contract employee with an expectation of a set period of employment,
terminable for cause.
¶ 42 Nonetheless, the plaintiff refers us to the “Introduction and Scope” section of the
disciplinary policy, purporting to disclaim the disciplinary procedures as placing any
limitation or restriction upon the Board’s right to “discharge any employee with or without
cause.” However, this general policy statement, standing alone, is insufficient to take
precedence over the more detailed language directly addressed to assistant principals, making
them subject to discharge only for cause. We agree with the Board that, where general
provisions of a contract tend to negate more specific terms applicable to the same subject, the
specific terms will govern. See, e.g., Perman v. ArcVentures, Inc., 196 Ill. App. 3d 758 (1990).
¶ 43 Having found that the plaintiff was subject to a definite contractual term of employment,
and that the Board exercised its option not to renew that term, we necessarily conclude that the
plaintiff was not an at-will employee. In Bajalo, this court reviewed Illinois law pertaining to
retaliatory discharge and held that this tort applies only to at-will employees and not to
employees, such as the plaintiff, whose contractual term of employment is not renewed. See
- 11 -
Bajalo, 369 Ill. App. 3d 576. Accordingly, we reverse the judgment for the plaintiff on the
claim of retaliatory discharge.
¶ 44 We next turn to the Board’s arguments regarding the verdict under the Act. After finding in
favor of the plaintiff on that claim, the jury awarded him damages of $100,000 for emotional
distress “as a result of retaliatory actions taken against him,” but “apart from his discharge,” for
the period of January 1, 2008, through June 30, 2009. The Board first contends that the trial
court erred in denying its motion in limine, under which it sought to exclude any evidence of
retaliatory acts prior to January 9, 2009. The Board asserts that, because the complaint was
filed on January 9, 2010, the one-year statute of limitations under the Act began running on
January 9, 2009, and therefore, the evidence of retaliation before that time was an abuse of
discretion and tainted the jury’s verdict. With regard to the evidence of retaliatory conduct
from May through December of 2007, the Board further points out that the Act did not extend
a right of action against public employers until January 1, 2008. See Pub. Act 95-128 (eff. Jan.
1, 2008) (amending 740 ILCS 174/5 (West 2006)). Accordingly, the admission of that
evidence was an abuse of discretion and operated to prejudice the jury’s decision. For the
reasons which follow, we reject this argument.
¶ 45 The decision of whether to grant a motion in limine rests within the sound discretion of the
trial court and will not be disturbed on appeal unless that discretion is abused. Martinez v.
Elias, 397 Ill. App. 3d 460, 467 (2009). An abuse of discretion will be found only if the trial
court’s ruling was arbitrary, unreasonable, or ignored recognized principles of law, or if no
other reasonable person would take the position adopted by the court. Schmitz v. Binette, 368
Ill. App. 3d 447, 452 (2006).
¶ 46 The parties do not dispute that actions under the Act against public employers are subject to
the one-year limitations period set forth in the Local Governmental and Governmental
Employees Tort Immunity Act. See 745 ILCS 10/8-101(a) (West 2010); Padilla v. County of
Cook, 100 F. Supp. 2d 1145, 1147 (N.D. Ill. 2000). In general, the limitations period begins to
run when the interest at issue is invaded. Pavlik v. Kornhaber, 326 Ill. App. 3d 731, 744-45
(2001). However, under the “continuing tort” or “continuing violation” theory, where the tort
involves continuous or repeated injurious behavior, by the same actor and of a similar nature,
the limitations period is held in abeyance and the plaintiff’s cause of action does not accrue
until the date the final injury occurs or the tortuous acts cease. Feltmeier v. Feltmeier, 207 Ill.
2d 263, 278 (2003); Pavlik, 326 Ill. App. 3d at 745. A continuing tort is not established by
ongoing injuries resulting from one discreet act (see Hyon Waste Management Services, Inc. v.
City of Chicago, 214 Ill. App. 3d 757, 763 (1991)), but instead involves viewing the
defendant’s conduct as a series of tortuous acts amounting to a continuous whole. Feltmeier,
207 Ill. 2d at 279. The continuing tort theory has been held applicable to claims for emotional
distress. Id. at 281.
¶ 47 In this case, the basis for the plaintiff’s claim under the Act was that from the period
immediately following his report of suspected abuse in May 2007, through the nonrenewal of
his contract in January of 2009, and to the end of his employment in June 2009, he was
subjected to a continuous pattern of petty harassment by the Board in direct retaliation for that
report. The plaintiff demonstrated that in the years he was employed by the Board prior to the
- 12 -
report, he had received satisfactory to superior evaluations and had a good working
relationship with Lewis. Beginning in August 2007, his performance rating was lowered, he
was demoted, and his integrity questioned in the context of his report of retaliation; he was
made to undergo humiliation in front of his peers and subjected to repeated, questionable
disciplinary censure and suspension with little or no opportunity to respond, culminating in the
nonrenewal of his contract. He alleged continuing retaliatory conduct up until his last day of
work. We conclude that the evidence established a continuous course of conduct at the hands
of Lewis and other Board employees, which gave rise to the plaintiff’s claim under the Act.
Accordingly, the court did not abuse its discretion in denying the Board’s motion in limine and
allowing the evidence of retaliatory conduct dating back to January of 2008.
¶ 48 Similarly, we find no error in the admission of retaliatory conduct in the period following
May 16, 2007, when the plaintiff made his report to DCFS and the police, until December
2007. Recognizing that the plaintiff had no right of action against the Board under the Act until
January 1, 2008, the trial court gave a limiting instruction specifically admonishing the jury
that the plaintiff could not recover damages under the Act for any claimed retaliatory acts
occurring prior to that date. Additionally, the evidence of Lewis’s increasing hostility toward
the plaintiff in that period, his lowered performance rating, the sudden demotion, and the
disciplinary action taken against him were all highly probative to show the repercussions
directly following the report of abuse and the Board’s continuing motive of retaliation. See
Reinneck v. Taco Bell Corp., 297 Ill. App. 3d 211, 214 (1998). Accordingly, there was no
abuse of discretion in admitting this evidence, subject to the limiting jury instruction.
¶ 49 Next, the Board argues that it is entitled to a new trial because the trial court erroneously
permitted the use of a single verdict form for both the retaliatory discharge claim and the claim
under the Act. As a result, it is unclear which damages applied to which of the two causes of
action. See Magnani v. Trogi, 70 Ill. App. 2d 216 (1966). We agree, but solely with regard to
the issue of damages.
¶ 50 The verdict form begins by setting out the jury’s finding for the plaintiff on the respective
claims of retaliatory discharge and violation of the Act. The form then states as follows:
“We assess damages in the sum of $1,000,500, itemized as follows (total of a
through c):
a. We assess Plaintiff’s damages for the value of time, salary and benefits lost, and
the present cash value of the salaries and benefits reasonably certain to be lost in the
future as result of his discharge to be: $600,500.
b. We assess Plaintiff’s damages for the emotional distress he experienced and is
reasonably certain to experience in the future as a result of his discharge term to be:
$300,000.
[Answer the following question only if you found in favor of Plaintiff *** on his
claim under the Act]:
c. We assess Plaintiff’s damages for the emotional distress he experienced and is
reasonably certain to experience as result of retaliatory actions taken against [him]
- 13 -
from January 1, 2008, to June 30, 2009, other than his discharge of employment to be:
$100,000.”
¶ 51 The Board argues, as the plaintiff argued at the jury instruction conference, that this single
form makes it impossible to ascertain what amount of damages, if any, were awarded for the
plaintiff’s discharge or cessation of employment under the Act, as opposed to his discharge
under the common law claim of retaliatory discharge.
¶ 52 Indeed, the Act affords far greater relief than the tort of retaliatory discharge (see Callahan
v. Edgewater Care & Rehabilitation Center, Inc., 374 Ill. App. 3d 630, 634 (2007)). It provides
for recovery if an employer takes “any action against an employee” for making a good faith
report of suspected illegal activity. (Emphasis added.) 740 ILCS 174/30, 15 (West 2004).
Further, the relief provided can extend to whatever is necessary to make the employee whole,
including, but not limited to, damages, back pay, reinstatement, fees and costs. 740 ILCS
174/30 (West 2004). We conclude that, based upon the clear and unambiguous language of the
statute, an employee alleging an adverse employment action by his employer in retaliation for
a good-faith report of a suspected violation of Illinois law can state a valid claim for recovery
under the Act. Although there is very little case law interpreting our statute, courts in other
jurisdictions have entertained such claims under similar whistleblower laws for the
nonrenewal of an employment contract motivated by retaliatory animus. See, e.g., Edwards v.
Gwinnett County School District, No. 1:11-CV-2581-TWT, 2013 WL 5492953 (N.D. Ga.
Sept. 30, 2013); Parks v. City of Brewer, 56 F. Supp. 2d 89 (D. Me. 1999); see also Sokn v.
Fieldcrest Community Unit School District No. 8, No. 10-1122, 2011 WL 2533793 (C.D. Ill.
June 27, 2011) (allegation of failure to renew employment contract). Based upon our review of
the record, there was sufficient evidence in this case to sustain a finding that the plaintiff
suffered an adverse employment action, in the form of the nonrenewal of his employment
contract, resulting from his report of child abuse. However, the verdict form fails to specify
whether the damages resulting from the plaintiff’s “discharge” were contemplated under the
retaliatory discharge claim or under the more expansive Act. Accordingly, in light of our
reversal of the retaliatory discharge finding, it is necessary to remand for a new trial on the
issue of damages under the Act. Because there will be a new determination as to damages, we
need not reach the Board’s contention regarding the denial of its motion for a remittitur.
¶ 53 The Board also filed a notice of appeal, which was consolidated with this case, from the
trial court’s order of February 7, 2013, awarding the plaintiff attorney fees, costs, and
prejudgment interest on his back pay. However, it has failed to file any briefs or otherwise
make any argument regarding these matters. We therefore deem the matters to be forfeited
under Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2103), and will dismiss the
consolidated appeal.
¶ 54 For the foregoing reasons, we reverse the judgment in favor of the plaintiff on his
retaliatory discharge claim, affirm the finding of the Board’s liability under the Act, vacate the
award of damages, and remand this case for a new trial solely on the issue of damages under
the Act, including, but not limited to, those resulting from the decision of the Board to
terminate the plaintiff’s contract.
- 14 -
¶ 55 No. 1-12-3744, Affirmed in part, reversed in part, vacated in part, and remanded.
¶ 56 No. 1-13-0605, Appeal dismissed.
- 15 -