Cook County Record

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Appeals panel vacates $1.05M award to assistant principal over retaliatory firing; remands for new trial on damages under Whistleblower Act

By Bethany Krajelis | May 7, 2014

Overturning a $1.05 million jury award to the former assistant principal of a South Side Chicago school who claimed he was fired in retaliation for reporting a teacher’s alleged abuse of a student, an Illinois appeals panel on Tuesday ordered a new trial on damages under the state’s Whistleblower Act.

In its 24-page opinion, the First District Appellate Court held that a new trial on the sole issue of damages is necessary in light of its decision to reverse the lower court’s judgment in favor of plaintiff Kenneth Taylor on his retaliatory discharge claim against the Chicago Board of Education.

The panel further explained that the lower court’s use of a single jury verdict form for both Taylor’s retaliatory discharge and whistleblower claims made it unclear which damages applied to which of the two actions.

Noting that the Whistleblower Act “affords far greater relief than the tort of retaliatory discharge,” the justices said relief provided under the act “can extend to whatever is necessary to make the employee whole, including, but not limited to, damages, back pay, reinstatement, fees and costs.”

Besides vacating the award and remanding for a new trial, the panel’s opinion reverses in part and affirms in part the rulings of Cook County Associate Judges Sanjay Tailor and Elizabeth Budzinski. Appellate Justice Thomas Hoffman wrote the opinion, with Justices Maureen Connors and Joy Cunningham concurring.

The appellate decision stems from a lawsuit Taylor brought in January 2010, alleging retaliatory conduct, including his termination, by the board and its employees following a May 2007 child abuse report he made to the Department of Children and Family Services.

Taylor, the then-assistant principal of Goodlow Magnet School, made the report on a day he was serving as the acting principal due to the absence of Principal Patricia Lewis.

According to the opinion, a veteran teacher told Taylor “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.”

Taylor reported the alleged abuse to the DCFS and police department after the teacher who informed him of the incident refused to make the report herself. He then prepared an incident report and contacted Lewis.

He testified that when he reached Lewis, she reprimanded him for reporting the incident and told him he mishandled the situation because the special education teacher was engaging in role-playing therapy with the student that had been approved by the child’s mother as part of his participation in the school’s problem-solving program for students with behavioral issues.

Following his May report, Taylor testified that Lewis and the board began a campaign of harassment that amounted to retaliation, including the lowering of his annual evaluation rating, being “diminished” from assistant principal to a full-time social studies teacher and other hostile conduct and behavior he claims was unwarranted.

He wrote a letter to the board’s labor relations department to inform it he believed Lewis was retaliating against him for making the report, which spurred an inquiry and an October 2007 written report that concluded his claim was unfounded

In December 2007, the opinion states, Taylor was reprimanded for incompetently performing his duties and making false statements that led to the investigation into Lewis.

After returning to school following a leave of absence later that month following his mother’s death, Lewis allegedly sat in to observe Taylor’s class one day.

She then filed a request for his emergency removal, which resulted in a January 2008 pre-discipline notice that stated he had been absent for 36 days. He denied the claim, asserting his absence was approved as medical and bereavement leaves.

Over the next few months, the appellate court opinion goes on to note that Lewis reassigned Taylor from teaching to supervising students placed on in-school suspension and twice initiated discipline against him over allegations he failed to supervise students and assaulted one.

Taylor claims upon his mid-December 2008 return from a medical leave stemming from injuries sustained in trying to break up a fight between students, he was informed by the board’s human resources department he was not an employee at the school.

The HR department, however, allegedly told Lewis to reinstate Taylor as assistant principal because his job position was tied to her contract and she had just been offered another four-year contract.

Taylor testified that when he returned to his position as assistant principal in January 2009, Lewis told him not to walk around the school or talk to anyone and that teachers were surprised to see him because they were told he had been fired.

Lewis, according to the opinion, notified Taylor on Jan. 19, 2009 that he was officially released pursuant to the guidelines of her new principal contract.

Taylor sued, seeking damages for retaliatory discharge under the common law tort and the state's Whistleblower Act.

The board moved for summary judgment, arguing that Taylor couldn’t bring the retaliatory discharge claim because he was not an at-will employee, but was instead subject to a contract that the board simply chose not to renew.

The trial court denied the request for summary judgment, as well as a motion in limine the board filed seeking to exclude evidence over retaliatory conduct occurring one year prior to the filing of Taylor’s January 2010 suit based on the statute of limitations.

Although that motion was denied, the trial judge instructed the jury it could not award Taylor damages for any retaliatory acts that occurred prior Jan. 1, 2008.

Following trial, a jury returned a verdict in favor of Taylor on both of his claims, awarding him a total of $1.05 million in compensatory damages and damages for emotional distress resulting from his discharge and the board's retaliatory conduct.

The board then unsuccessfully asked the trial court for a judgment notwithstanding the verdict, a new trial and a remittitur, spurring the First District’s recent review of the matter.

In its analysis, the appeals panel agreed with the board’s argument that the trial court judgment in favor of Taylor on the retaliatory discharge claim should be reversed on the basis he couldn’t bring the action because he was not an at-will employee.

The panel also agreed with the board’s contention, which the opinion notes the plaintiff raised at the jury instruction conference, the trial court was wrong to allow the use of a single verdict form for both of Taylor’s claims as it made it  impossible to figure out what, if any, damages were awarded on his common law claim of retaliatory discharge, as opposed to his claim under the Whistleblower Act.

“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,” Hoffman wrote for the panel.

He added, “Although there is very little case law interpreting our statute, courts in other jurisdictions have entertained such claims under similar whistleblower laws for the non-renewal of an employment contract motivated by retaliatory animus.”

Hoffman further explained that while the panel reversed the lower court’s judgment on the retaliatory discharge claim, it found Taylor presented enough evidence to show he “suffered an adverse employment action, in the form of the non-renewal of his employment contract, resulting from his report of child abuse.”

And since the jury verdict form was not clear on what damages applied to which of the two actions, the panel determined a new trial must be held to determine the question of damages under the Whistleblower Act.

According to the clerk’s office, the Chicago Board of Education was represented before the First District by the City of Chicago’s Law Department and Taylor was represented by attorneys at the Sinson Law Group, Hemenway Law Firm and Kapitan Law Office.

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