Fleming v. County of Kane, State of Ill.
| Decision Date | 27 March 1990 |
| Docket Number | No. 88-2385,88-2385 |
| Citation | 898 F.2d 553 |
| Parties | 30 Fed. R. Evid. Serv. 65 Robert G. FLEMING, Plaintiff-Appellee, v. COUNTY OF KANE, STATE OF ILLINOIS, and Nabi R. Fakroddin, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gerald J. Brooks, Steven B. Adams, Fawell, James & Brooks, Naperville, Ill., for plaintiff-appellee.
David R. Akemann, Office of the State's Atty. of Kane County, Geneva, Ill., Gerard B. Gallagher, Peter A. Bauer, Mark C. Amador, Patricia J. Stiles, David L. Joslyn, Gallagher & Joslyn, Oakbrook Terrace, Ill., Robert F. Casey, Casey & Krippner, Geneva, Ill., for defendants-appellants.
Before FLAUM, RIPPLE, and KANNE, Circuit Judges.
In the Sec. 1983 action underlying this appeal, Robert G. Fleming (hereinafter "Fleming" or "plaintiff"), alleged that defendants, Kane County and its Highway Superintendent, Nabi R. Fakroddin, harassed and ultimately dismissed him from his position with the Kane County Highway Department in violation of his first and fourteenth amendment rights. Fleming maintained that he was terminated in retaliation for his vocal criticism of the bid-letting procedures surrounding a road construction contract. After a jury trial, the district court entered a judgment in favor of Fleming. Defendants filed post-trial motions praying for: (1) a judgment notwithstanding the verdict, or alternatively, for a new trial; or (2) for a remittitur of damages if their motions for a JNOV or new trial were denied. The district court issued an order denying defendants' post-trial motions, except to the extent of granting defendants a new trial on the damages issue if Fleming did not accept a remittitur in the damage award in the amount of $80,000. 686 F.Supp. 1264. Fleming accepted the remittitur and a final judgment was entered in favor of Fleming in the amount of $157,574.19. 1 Fleming was subsequently awarded attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. Sec. 1988, in the amount of $205,176.19. Defendants appeal from these final decisions.
Robert G. Fleming served as the Assistant Superintendent of Highways for Kane County from 1968 until his termination by Nabi Fakroddin on June 7, 1984. From 1969 until March 1, 1984, William Carter served as Superintendent of Highways for Kane County and, by virtue of that position, was Fleming's immediate supervisor. Carter unexpectedly resigned this position prior to the end of his term. Upon Carter's formal resignation on March 1, 1984, Nabi Fakroddin commenced his tenure as Superintendent of Highways. After a series of disciplinary measures ostensibly imposed pursuant to a "progressive discipline" scheme, Mr. Fakroddin terminated Mr. Fleming on June 7, 1984.
At trial, Fleming alleged that his termination was in retaliation for his vocal criticism of Kane County's construction of an overpass over the East-West Tollway at Orchard Road ("the Orchard Road project"). Specifically, Fleming questioned the integrity of the bid-letting procedures surrounding that contract. 2 Fleming's responsibility on the Orchard Road project, as it had been on other similar projects, was to review the submissions for the Fleming's discontent with the letting of the Orchard Road project manifested itself over the ensuing months in the form of various communications with county and state officials. Fleming contacted the Kane County State's Attorney's Office, the Illinois Attorney General's Office, the FBI, the Kane County Clerk, and the ten contractors who had bid on the Orchard Road project and been rejected. Each of these communications conveyed the perception that a "cover up" of the alleged impropriety of this project's letting procedures was being undertaken by the various Kane County officials involved. 3 Fleming alleged at trial that it was in retaliation for these "whistle-blowing" activities that he was terminated.
project and approve the monthly pay estimates. Because the project file failed to document the changed location of the borrow pit or any reduction in the contract price to offset the savings which resulted from that relocation, he refused to approve the monthly pay estimates for that project.
Contrary to Fleming's allegations in his first amendment claim, defendants maintained that Fleming's termination was a result of his poor work performance and insubordination. Evidence in support of both contentions was presented at trial. Specifically, defendants pointed to various instances in which Fleming allegedly failed to adequately perform tasks which he was assigned by Mr. Fakroddin. Moreover, defendants presented testimony from Mr. Fakroddin and other employees regarding instances in which Fleming had allegedly directed obscene gestures and verbal insults at Mr. Fakroddin and others in the department.
In returning its verdict in favor of Fleming, the jury determined otherwise. Specifically, the jury found that Mr. Fleming was terminated because of his "whistle-blowing" activities with respect to the Orchard Road project. Moreover, the jury found that defendants would not have terminated Fleming had it not been for his vocal criticism of the procedures surrounding the Orchard Road project.
Defendants raise four separate issues in this appeal. First, defendants argue that the district court abused its discretion in excluding from trial defendants' proffered evidence regarding the apparent propriety of the procedures surrounding the Orchard Road project. Second, defendants argue that the district court erred in denying their motions for a JNOV, or alternatively, for a new trial. Third, defendants argue that the damages awarded were against the manifest weight of the evidence. Finally, defendants argue that the court's award of attorney's fees under Sec. 1988 was excessive.
The extent to which the jury was exposed to evidence regarding the alleged improprieties surrounding the award of the Orchard Road project underlies the primary issue presented for review in this appeal. This evidence was generally excluded from trial pursuant to the district court's rulings on various pre-trial motions as well as evidentiary objections at trial. The manner in which these motions were pursued is as follows.
On September 10, 1987, Fleming filed a motion to exclude the testimony of defendants' expert Howard Schwark, a former Superintendent of Highways for Kankakee County. Defendants had indicated that they would call Schwark to testify that there was no impropriety in the procedures surrounding the letting of the Orchard Road project. This motion was granted by the district court on September 18, 1987. In granting this motion, the district judge reiterated the stance which he would adopt toward this type of evidence throughout the trial--i.e., that, for the purposes of Fleming's first amendment claim, it did not matter whether his criticisms of the Orchard Road project were in fact justified. In excluding both plaintiff's and defendants' evidence on the actual merits of the Orchard Road project, the district judge was attempting to prevent the parties from engaging in a "mini-trial" on that subject. During the course of this same hearing, however, the trial court ruled that Fleming would be permitted to introduce limited evidence regarding the Orchard Road project as "background" to explain his reasons for vocally criticizing the project.
Thereafter, defendants filed a Motion in Limine or, Alternatively, Defendants' Motion to Reconsider, and Offer of Proof Regarding the Orchard Road Project. Defendants sought to preclude Fleming from presenting any evidence beyond a general statement to the effect that he disputed the procedures surrounding the Orchard Road project. Defendants' concern was that Fleming would present "just enough evidence" to raise an unrebutted inference that there was corruption on the part of the County officials and, in so doing, prejudice the jury. In the alternative, defendants requested the court to reconsider its order granting plaintiff's motion in limine on Howard Schwark's testimony. Finally, defendants made an Offer of Proof in which they offered evidence which, if allowed at trial, would have shown that: (1) the local and main Illinois Department of Transportation offices reviewed and approved of the change of the borrow pit site; (2) the change of site was entirely legal and proper; (3) the decision to change the site was made after reviewing other less efficient options; and, (4) the option chosen saved the County up to $400,000 and completed the project ahead of schedule. These motions were orally denied by the court during a status hearing on October 1, 1987.
During the course of the trial, Fleming was permitted to introduce as "background" evidence certain of his perceptions regarding the Orchard Road project. Specifically, Fleming was permitted to read his "Collusion or Gross Stupidity" letter into evidence. In addition, plaintiff questioned other witnesses in his case-in-chief in a relatively neutral manner regarding their awareness of the Orchard Road project. 4 At all times during the presentation of the evidence where an instruction to the jury was warranted, however, the court carefully reiterated to the jury the fact that the propriety or impropriety of the procedures surrounding the Orchard Road project were not an issue in this case. Moreover, the jury was admonished that it should not interpret defendants' silence on this issue as an admission that there was in fact some type of corruption involved. The substance of these instructions was presented to the jury one final time in the court's final instructions prior to jury deliberations. The jury was not unaware of its obligation in this regard.
The practical result of the court's resolution of these evidentiary pre-trial motions and objections, according to defendants, was a...
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