Fleming v. Kane County, 85 C 8641.

• Decision Date: 12 April 1988
• Docket Number: No. 85 C 8641.,85 C 8641.
• Citation: 686 F. Supp. 1264
• Parties: Robert G. FLEMING, Plaintiff, v. COUNTY OF KANE and Nabi R. Fakroddin, Defendants.
• Court: U.S. District Court — Northern District of Illinois

686 F. Supp. 1264

Robert G. FLEMING, Plaintiff, v. COUNTY OF KANE and Nabi R. Fakroddin, Defendants.

No. 85 C 8641.

United States District Court, N.D. Illinois, E.D.

April 12, 1988.

Heidi H. Katz, Steven B. Adams, Robert A. Heap; Fawell, James & Brooks, Naperville, Ill., for plaintiff.

Gerard B. Gallagher, Peter A. Bauer, Patricia J. Stiles, Mark C. Amador; Gallagher, Joslyn & McGurn, Oak Brook, Ill., Robert F. Casey, Theodore G. Schuster, Casey & Krippner, Geneva, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Robert Fleming ("Fleming"), fired from his long-held job with the County of Kane ("County") Highway Department, then sued both County and Fleming's boss who did the firing, Highway Superintendent Nabi Fakroddin ("Fakroddin"). Fleming brought his action under 42 U.S.C. § 1983 ("Section 1983"), charging his firing had been in retaliation for his exercise of First Amendment rights.¹ Fakroddin responded with a counterclaim for defamation.

After a jury trial:

1. Fleming prevailed before the jury on his constitutional claim against both defendants.

2. This Court withdrew Fakroddin's counterclaim from jury consideration, granting Fleming's Fed.R.Civ.P. ("Rule") 50(a) motion for a directed verdict at the close of Fakroddin's case-in-chief.

This memorandum opinion and order will deal with the host of post-trial motions since filed by the parties.

Defendants' Alternative Motion for JNOV or New Trial²

Each side has produced a one-sided version of the facts presented to the jury— sort of a variation on the story of the six blind men and the elephant or, to move from fable to the more modern medium of the cinema, the classic Japanese motion picture Rashomon. But there is a sharp difference in the extent to which such dramatically opposite perspectives are now to be credited. Now the jury, presented with two diametrically opposed scenarios, has chosen to credit one of them.

That calls for very different standards of review here: At this point the question is not how this Court would have resolved the factual issues if left to its own devices, nor is the question whether this Court finds itself in substantial agreement with the jury's resolution of those issues. Instead this opinion turns to the quite different criteria to be applied to defendants' multi-part motion.

1. Judgment Notwithstanding the Verdict (JNOV)

Both litigants essentially agree on the test for this Court's overturning the jury's verdict entirely by granting JNOV. In Cygnar v. City of Chicago, 652 F.Supp. 287, 289-90 (N.D.Ill.1986) this Court quoted at length from the articulation of the standard in Van Houdnos v. Evans, 807 F.2d 648, 650 (7th Cir.1986)—a standard tersely summarized in the language Van Houdnos quoted from Benson v. Allphin, 786 F.2d 268, 279 (7th Cir.), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986):

The standard for granting a directed verdict is very generous to the nonmovant.

And since Cygnar our Court of Appeals has reconfirmed the generosity of that standard (see, e.g., Collins v. State of Illinois, 830 F.2d 692, 697-98, 704-05 (7th Cir.1987)).

It is unnecessary to rehearse the evidence in any detail to show defendants were not entitled to the equivalent of a directed verdict—the identical standard applicable to a JNOV motion. Defendants' factual presentation, though it might perhaps have moved this Court (had it been the trier of fact) to a finding in defendants' favor, does violence to the reasonably-favorable-inferences principle stated by the very authorities defendants invoke. Their motion for judgment notwithstanding the verdict must be and is denied.

2. New Trial

Here the test is whether the jury's verdict is against the clear weight of the evidence—what Cygnar, 652 F.Supp. at 290-91 characterized as "somewhere in between the judgment n.o.v. test and a straight second-guessing of what the jury has done." Nothing post-Cygnar modifies that "against the clear weight" criterion in any respect, and the following discussion therefore applies that standard.

Fleming Mem. 2-9 (a copy of which is attached as Appendix A to avoid the need for this Court's restatement of the proof) details the evidence that the jury heard and was entitled to credit if it wished to do so. Though Fleming's version also has the vice of one-sidedness, it was not beyond the ken of the jury to resolve the factual questions in his favor just as Fleming has done in his summary.

Without seeking to emphasize certain pieces of evidence at the expense of others,³ this Court will say the jury did not exceed its rightful province when it apparently refused to credit Fakroddin's story of his not having gotten a very early line on Fleming's Orchard Road complaints and of his not having identified Fleming from the start as a prime prospect to be eliminated from the Highway Department. What Fakroddin testified to in both those respects was wholly at odds with his almost immediate use of Mary Jane Landreth as a record-builder of Fleming's claimed deficiencies. And a permissible jury inference from such a perceived lack of credibility on Fakroddin's part was that he was also not telling the truth when he said he was really unconcerned with Fleming's First-Amendment-protected criticism of the Orchard Road Project.

Though Fakroddin's totally insensitive handling of Fleming⁴ is not of course independently probative of Fakroddin's motives for having imposed Fleming's suspensions and for having taken the ultimate adverse step of firing Fleming, the jury could have viewed that insensitivity as also discrediting Fakroddin's account of why he did what he did. This Court charged the jury carefully as to what hurdles Fleming had to overcome in the "but-for" sense to prevail under Section 1983. It will not second-guess the jury's application of the correct legal standard to what the jury found to be the facts.⁵

This Court should not be misunderstood as saying the jury's resolution was the same as this Court's own would have been were this a bench trial. Rather this Court's respect for the allocation of roles between judge and jury makes the Fleming Mem. 10 quotation from Collins, 830 F.2d at 705 (citation omitted) highly apropos in that regard—even though it addressed a JNOV motion and not one for a new trial:

Plaintiff's evidence offered to establish her prima facie case of retaliation also was applied to show that defendants' explanations were pretextual. The jury was thus presented with the question of whether plaintiff's transfer was a consequence of her filing grievances and complaints against defendants or whether the timing of the transfer was merely coincidental and the transfer was in fact motivated by legitimate management reasons. Although the jury might have been entitled to decide otherwise, the jury was entitled to find retaliation because we believe there was substantial evidence of retaliation.

3. Evidentiary Rulings

Defense counsel persist in a mischaracterization of this Court's efforts, during the trial, to insulate the jury from testimony as to the validity or invalidity of Fleming's expressed concerns about the integrity of the Orchard Road Project. Firings of employees for their exercise of First Amendment rights are equally prohibited whether the employees' grievances are well-founded or groundless. Introducing the jury to the merit or lack of merit in such grievances therefore risks muddying the waters: It can permit the jury's decision to be overly influenced (improperly) by that consideration, rather than focusing (properly) only upon what motivated the decisionmaker to do the firing.

In this case the public official doing the firing—Fakroddin—was not the one who was allegedly involved in what Fleming claimed were the Orchard Road improprieties. Fakroddin had no personal stake in justifying the Orchard Road handling. That being so, a showing that any actual impropriety had taken place would not be probative that Fakroddin's discharge of Fleming was retaliatory, because Fakroddin (as a non-miscreant) would presumably have had no motive to get back at Fleming, the whistleblower. For that reason it would have been improper to present to the jury evidence that what Fleming saw as smoke was actually indicative of real fire.

On the other side of the coin, except perhaps to the extent Fakroddin had testified (for example) that his awareness of the total baselessness of Fleming's complaints caused him to conclude that Fleming was a total flake incapable of doing his job, the evidence defendants sought to inject into the case about the lack of merit of Fleming's complaints was really beside the mark. But Fakroddin—the man who actually did the firing—expressly did not ascribe any significance to the evaluation of the merits of Fleming's Orchard Road charges. On the contrary, Fakroddin's testimony wholly dissociated him from that subject, distancing himself as far as he could from the matter. Fakroddin's version was that he did not view that topic as of any concern to him either way.

Defendants really give the game away when they explicitly recognize that the kind of evidence they have identified (Defendants' Mem. 12-13 n. 3) would have had to be accompanied by "appropriate cautions by the Court" (id. at 12).⁶ That was because such evidence was flat-out irrelevant —or if it did have any potential marginally probative value, that value would have been substantially outweighed by its unfair prejudicial effect on Fleming (Fed.R. Evid. 403).⁷

Defendants' other evidentiary objections suffer from the same flaw. Because Fakroddin made the firing decision, the views and evaluations by other employees of Fleming's merits and demerits as an employee—unless of course those views were communicated to Fakroddin—were totally irrelevant. Usually that kind of line is a blurred one, because usually the tenures of the fired and firing employees are concurrent. In that circumstance the same flaws perceived...