No. 1-13-2228 Opinion filed January 14, 2015 Third Division

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

DIANE CIPOLLA, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) No. 11 L 1673 v. ) ) The Honorable THE VILLAGE OF OAK LAWN, ) Thomas R. Mulroy, ) Judge, presiding. Defendant-Appellee. )

______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.

OPINION

¶1 The village manager of Oak Lawn told Diane Cipolla, a 12-year employee just shy of her

sixtieth birthday, that her position was being terminated to help close a budget gap that exceeded

$1 million. But Cipolla believes the real reason was her age and claims her supervisor was heard

commenting on her age during a closed meeting of the village board of trustees only one day

before the termination. Cipolla sued the village alleging age discrimination in violation of the

Illinois Human Rights Act (775 ILCS 5/1-102(A) (West 2012)). After a four-day trial, the judge 1-13-2228

instructed the jurors and gave them two special interrogatories asking: (1) whether the non-

discriminatory reason the village gave for terminating Cipolla's employment (i.e., budget) was a

pretext, and (2) whether the village fired Cipolla because of her age. During deliberations, the

jury submitted a note to the judge asking whether the term "fired" includes laid off, terminated,

or eliminated. After conferring with counsel, the judge decided not to answer the question and

instead instructed the jurors to "resolve your question by continuing to review said facts and by

reference to the jury instructions." The jury returned a verdict in favor of the village. After the

trial court denied her motion for a new trial, Cipolla appealed.

¶2 Cipolla argues the jury's verdict should be reversed and the case remanded for a new trial

because: (1) the trial court abused its discretion by refusing to clarify for the jury the meaning of

the word "fired"; (2) defense counsel made improper, prejudicial remarks during closing

argument; (3) the jury should have been given a "cat's paw" liability instruction; (4) the village

should not have been permitted to present witnesses who denied the comment about Cipolla's

age had been made during the closed board meeting while also maintaining executive privilege

over an audiotape of the meeting; (5) the trial court erred in permitting the village to present

irrelevant evidence about her husband's business; and (6) the jury's verdict was against the

manifest weight of the evidence.

¶3 We affirm. The jury's request for clarification on the meaning of the word "fired"

presented a factual issue, and the trial court did not err in refusing to answer it. Further, the

court's evidentiary rulings and jury instructions were not grounds for a new trial, defense

counsel's comments during closing arguments were not prejudicial, and the jury's verdict was not

against the manifest weight of the evidence.

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¶4 BACKGROUND

¶5 Diane Cipolla began working as the business regulation officer in the Village of Oak

Lawn's finance department in 1996. On April 11, 2008, Cipolla met with village manager Larry

Deetjen, Brian Hanigan, the village's director of finance and Cipolla's supervisor, and Dan

Omiecinski, the village's human resource director. Deetjen told Cipolla that her job was being

eliminated or automated due to budget constraints. Cipolla was placed on administrative leave

and continued to receive full pay and benefits until April 23, 2008, when her employment was

officially terminated. On April 22, 2008, the village board of trustees approved amendments to

the village's 2008 budget, which included the elimination of Cipolla's position, as well as three

firefighter positions.

¶6 Cipolla contends that on April 10, 2008, the day before she was terminated, the village

board met in a closed executive session and, while discussing reorganization and staff cuts, her

supervisor, Brian Hanigan, commented that Cipolla was "older." Cipolla also asserts that

although she was told her position was being eliminated or automated, her job responsibilities

were transferred to Deanne Adasiak, another village employee who was 20 years her junior.

Cipolla contends that budget constraints were only a pretext for her termination, because not

long after, the village hired a budget director for a salary in excess of $80,000, gave many of its

finance department employees raises, and continued to hire new employees.

¶7 Cipolla filed a charge of age discrimination with the Illinois Department of Human

Rights, which dismissed the charge on November 10, 2010. Cipolla then filed a complaint in the

circuit court of Cook County on February 14, 2011 (which was amended on March 20, 2012),

alleging she was fired because of her age in violation of the Illinois Human Rights Act (Act)

(775 ILCS 5/1-102 et seq. (West 2012)). Section 1-102(A) of the Act provides, in relevant part,

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that "It is the public policy of this State *** [t]o secure for all individuals within Illinois the

freedom from discrimination against any individual because of his or her *** age ***." 775

ILCS 5/1-102(A) (West 2012). The village filed an answer denying all of Cipolla's allegations

and an affirmative defense asserting that Cipolla could not establish a prima facie case of age

discrimination because no other similarly situated younger employees were treated differently

and the village never sought a replacement for her position. The village contended Cipolla was

terminated for budgetary reasons, because it had a deficit of more than $1 million that it decided

to alleviate by cutting personnel costs.

¶8 During pretrial discovery, Cipolla asked the village to produce the audiotape from the

executive session of the village board, but the village refused, arguing it was privileged under the

Illinois Open Meetings Act (5 ILCS 120/1 et seq. (West 2012)). Cipolla then filed a motion to

compel the village to produce the audiotape, or alternatively, to bar the village from denying that

Hanigan made statements about Cipolla's age during that meeting. In support of her motion,

Cipolla contended that because budgetary decisions were purportedly made during the executive

session, it was not a properly closed meeting and thus the exception to disclosure under the Open

Meetings Act was inapplicable. Cipolla also argued she had a particularized need for the

audiotape because board members who were at the meeting presented conflicting deposition

testimony as to whether Hanigan commented about her age and discovery of the truth weighed in

favor of compelling the village to produce the audiotape. Cipolla alternatively asked the trial

court to inspect the audiotape in camera to determine whether anything related to her age was

said during the executive session.

¶9 After argument, the trial court ordered the village to submit the audiotape and a verified

transcript for in camera review. After reviewing the tape and the transcript, the trial court denied

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Cipolla's motion. The trial judge said that the transcript indicated that a male speaker mentioned

Cipolla's name twice during the executive session and that after listening to the tape, which was

difficult to understand, he was able to determine that nothing was said regarding Cipolla's

termination, her age, or anything else relevant to the case. The court also denied Cipolla's later

motion to have the audiotape inspected by a forensics recording expert to determine if it had

been edited, altered, or otherwise not properly preserved, because the court found no evidence

that the recording's integrity had been compromised.

¶ 10 Before trial, Cipolla filed a motion in limine to bar the village from presenting testimony

denying that Hanigan made statements about her age during the executive session or, in the

alternative, to bar testimony relating to the tape. The trial court's ruling on that motion is not in

the record, but it appears from the trial transcript that the motion was denied, at least in part,

because the village presented several witnesses at trial who testified that Hanigan did not make

any comments about Cipolla's age during the executive session.

¶ 11 The evidence at trial showed that on April 10, 2008, the day before Cipolla was

terminated, the village's board of trustees met in executive session to discuss budget

amendments. The village had a budget deficit of about $1.4 million and the board was

discussing, among other things, the elimination of some vacant positions and the dismissal of

some village employees. Village board member Jerry Hurckes testified that while discussing

Cipolla's termination, finance director Hanigan said, "Well, she [Cipolla] is older." Hurckes said

he admonished Hanigan saying, "those kinds of words can't be used because that's what gets us

in trouble." Hurckes said trustee Alex Olejniczak also similarly admonished Hanigan.

Olejniczak, however, testified he never heard Jerry Hurckes scold Brian Hanigan for making

comments about Cipolla's age and said that if Hanigan had made that type of comment he would

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have objected but denied having done so. Several other witnesses at the executive session,

including village trustees Thomas Phelan and Carol Quinlan and village mayor David Heilmann,

also testified that they did not hear Hanigan make any comments about Cipolla's age.

¶ 12 Village manager Deetjen testified that Hanigan recommended eliminating Cipolla's

position and giving her job responsibilities to Deanne Adasiak, a village employee who worked

on special events. Deetjen said that the decision to terminate Cipolla was not performance-based

but was an effort to address the village's budget problems. Deetjen testified that in addition to

Cipolla's position, the budget amendment eliminated several vacant positions and resulted in the

layoff of three firefighters. Hanigan acknowledged that during the executive session meeting he

recommended that the village's finance department be restructured by consolidating Cipolla's and

Adasiak's positions to help close the village's budget gap but denied making any statements

about Cipolla's age during that meeting.

¶ 13 On April 22, 2008, the village board held a public meeting and approved the budget

amendments, which included the elimination of Cipolla's position and three firefighter positions.

Trustee Hurckes voted against the amendments. Trustees Olejniczak, Phelan and Quinlan voted

for the budget amendment, but testified their votes were not motivated by Cipolla's age. Later,

Cipolla saw Hurckes at a political fundraiser, and he told her about Hanigan's comments

regarding her age. At about the same time, Cipolla saw a job posting on the village website for a

budget director with a salary that exceeded the salary she had been earning in the business

regulation officer position. Deetjen confirmed that a few months after Cipolla left the village

hired a budget director, whose salary exceeded Cipolla's. Cipolla acknowledged she was not

qualified for that job because she did not have an accounting degree.

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¶ 14 Cipolla also acknowledged that on the day she was terminated, Deetjen told her about a

potential opening in the village's 911 telecommunications center, but said no formal job offer

was made, and she believed she would need to pass a civil service test before she could be

offered that position. On cross-examination, Cipolla conceded that she was not interested in the

telecommunications position because she had small children and did not want to work evening

and weekend hours and also did not think she could handle the pressure of the job. Cipolla said

the village offered no other alternatives to termination, such as taking a lower salary or assuming

the job duties of another village employee with less tenure.

¶ 15 After Cipolla was terminated, she submitted paperwork with the Illinois Municipal

Retirement Fund (IMRF) and has been receiving pension payments since April 2008. Cipolla

testified that she filed the IMRF papers so that she and her husband could continue to get health

insurance through the village's insurance plan rather than buying health insurance from a private

insurer. She said that the village continues to pay part of her health insurance premium, but at a

lower rate than when she was a village employee.

¶ 16 After she was terminated, Cipolla searched for other job opportunities, without success.

In June 2008, she took a part-time, unpaid position at her husband's snack food business. In

2010, she began receiving salary for her work at the company, and at the time of trial, was

earning $12,000 a year. Cipolla testified that her duties involve sales and marketing, attending

trade shows, and sending samples and product pricing information to distributors. She said she

has business cards with the title of sales director, but said she uses them primarily to provide

potential customers her contact information. Cipolla described the company as a small, three-

employee business and her job as a "lesser position" than the one she held at the village.

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¶ 17 On cross-examination, Cipolla acknowledged that her husband's business partner was

Fred Plochman, one of the owners of Plochman's Mustard Company, that Fred Plochman died

and her husband is now the sole owner of the business. She also acknowledged that the

company's products are sold in Whole Foods stores, as well as in China and Dubai. Over

objection, defense counsel asked Cipolla about a report showing the company had annual

revenues exceeding $2 million. Cipolla denied knowledge about the company's finances but

disputed that figure.

¶ 18 Plaintiff's husband, Paul Cipolla, testified that his company is a small snack food business

with three employees. He said he hired his wife as a part-time sales director because she was

unable to find other employment and he thought it would help alleviate the depression she felt

after losing her job with the village. On cross-examination and over objection from plaintiff's

attorney, Paul Cipolla testified that his company's 2012 annual revenues were between $500,000

and $1 million. On redirect, he said that the $500,000 to $1 million figure was not income to him

because it did not include deductions for expenses paid to distributors and contractors.

¶ 19 During the jury instruction conference, Cipolla tendered a non-Illinois Pattern Jury

Instruction (plaintiff's instruction No. 10), which read as follows:

"The Illinois Human Rights Act prohibits 'unlawful discrimination.' Unlawful

discrimination is discrimination against a person on the basis of his or her race, color,

religion, national origin, ancestry, age, sex, marital status or handicap.

The Act specifically defines the following conduct as a civil rights violation in the

employment context: For any employer to refuse to hire, to segregate, or to act with

respect to recruitment, hiring, promotion, renewal of employment, selection for

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training or apprenticeship, discharge, discipline, tenure or terms, privileges or

conditions of employment on the basis of unlawful discrimination."

¶ 20 The village objected, arguing that the first paragraph alone would sufficiently and

accurately state Illinois law and noting that plaintiff's instruction No. 11 (see Illinois Pattern Jury

Instructions, Civil, No. 250.02 (2011) (hereinafter, IPI Civil (2011)) already addressed the

elements Cipolla was required to prove to prevail on her age discrimination claim. Plaintiff's

instruction No. 11 stated:

"The Plaintiff has the burden of proving each of the following propositions:

First, that the Plaintiff was an employee of the Defendant;

Second, that the Plaintiff was fired from her employment with the Defendant;

Third, that the Plaintiff was fired because of her age;

Fourth, that the Plaintiff sustained damages as a result of her firing.

If you find from your consideration of all the evidence that each of these

propositions has been proven, then your verdict should be for the Plaintiff. On the

other hand, if you find from your consideration of all the evidence that any of these

propositions has not been proven, then your verdict should be for the Defendant."

¶ 21 The trial court gave plaintiff's instruction No. 11 and over Cipolla's objection, only gave

the jury the first paragraph of plaintiff's instruction No. 10.

¶ 22 Two other proposed jury instructions on which the parties disagreed were plaintiff's

instructions Nos. 17 (a modified IPI) and 18 (a non-IPI). Plaintiff's instruction No. 17 modified

IPI Civil (2011), No. 50.02 agency instruction as follows: "Brian Hanigan and Larry Deetjen

were agents of the Defendant Village of Oak Lawn at the time of Plaintiff's termination.

Therefore, any act or omission of the agents at that time was in law the act of omission of the

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Defendant Village of Oak Lawn." The village objected, arguing that agency was not a contested

issue and the instruction would confuse the jury. The village also objected to Cipolla's proposed

non-IPI instruction No. 18, seeking to hold the village liable for Hanigan's discriminatory intent,

also referred to as "cat's paw liability." Plaintiff's instruction No. 18 read: "The Defendant

Village of Oak Lawn may be held liable for employment discrimination based on the

discriminatory animus of a supervisor who influenced, but did not make, the ultimate

employment decision, if that supervisor performs an act motivated by discriminatory animus that

is intended by the supervisor to cause the termination, and does cause the termination."

¶ 23 Cipolla's attorney contended cat's paw liability was an issue because evidence showed

that Hanigan recommended to Deetjen that Cipolla be terminated. The trial court declined to give

instruction No. 18, finding it would confuse the jury, but instead gave the modified agency

instruction, plaintiff's instruction No. 17.

¶ 24 While the jurors were deliberating, they sent a note to the judge, stating, "Judge, Please

define fire. Does it include, a) laid off; b) terminated; c) eliminated." Cipolla's counsel argued the

trial judge should answer in the affirmative and suggested that the jury's confusion could have

been avoided if the trial judge had given plaintiff's proposed instruction No. 10 in full. The trial

judge decided the question was a factual one and answered it by telling the jurors "You should

resolve your questions by continuing to review said facts and by reference to the jury

instructions." Cipolla's attorney did not object to this response.

¶ 25 The jury returned a verdict in favor of the village. In addition, the jury answered two

special interrogatories in the negative, finding that the nondiscriminatory reason the village gave

for terminating Cipolla's employment (i.e., budget) was not a pretext and that the village did not

fire Cipolla because of her age. On January 31, 2013, the trial court entered judgment against

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Cipolla and in favor of the village. Cipolla filed a motion for a new trial arguing, in part, that the

verdict was against the manifest weight of the evidence, that the trial judge erred in refusing to

answer the jury's question regarding the definition of "fired," and that several of the trial judge's

rulings on evidence and jury instructions were erroneous. The trial court denied the motion for a

new trial and Cipolla filed a timely notice of appeal.

¶ 26 ANALYSIS

¶ 27 Jurors' Question

¶ 28 Cipolla first contends the trial court abused its discretion by not answering the jury's

question whether "fired" includes laid off, terminated, or eliminated. She asserts the judge's

failure to provide an answer led to jury confusion and warrants reversal and a new trial.

¶ 29 As a preliminary matter, we address defendant's assertion that Cipolla waived the issue

by assenting to the trial court's decision to tell the jury to continue to deliberate. Generally, when

a party consents to a trial court's answer to a jury question, that party cannot later argue that the

trial court's answer was an abuse of discretion. People v. Averett,

(2010). The

record shows that after receiving the jury's question, the trial judge asked the attorneys for input

on a response. When defense counsel suggested the judge tell the jury that "fired" does not

include eliminated, plaintiff's attorney objected and asked to "make a record" that the trial court

should have given the jury plaintiff's instruction No. 10. Although the judge ultimately rejected

plaintiff's request, stating that he could not give the jury additional instructions, and told the jury

to continue to review the facts, plaintiff's counsel did present an objection, which she again

raised in her motion for a new trial. Thus, plaintiff preserved the issue.

¶ 30 Generally, the trial court has “a duty to provide instruction to the jury where it has posed

an explicit question or requested clarification on a point of law arising from facts about which

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there is doubt or confusion.” People v. Childs,

(1994). The duty to

answer the jury's question applies even if the jury was properly instructed.

; see also

People v. Reid,

(1990). Therefore, “[t]he failure to answer or the giving of a

response which provides no answer to the particular question of law posed has been held to be

prejudicial error.” Childs,

. But the trial court has the discretion to “decline to

answer a jury's inquiries where the instructions are readily understandable and sufficiently

explain the relevant law, where further instructions would serve no useful purpose or would

potentially mislead the jury, when the jury's inquiry involves a question of fact, or if the giving

of an answer would cause the court to express an opinion which would likely direct a verdict one

way or another.”

. A trial court's decision on how to respond to jury questions during

deliberations is “ordinarily left to the discretion of the trial court, so that the trial court's decision

will be disturbed on appeal only if that decision constituted an abuse of discretion. [Citation.]”

(Internal quotation marks omitted.) People v. Nash, 2012 IL (1st) 093233, ¶ 39.

¶ 31 Cipolla relies on Van Winkle v. Owens-Corning Fiberglas Corp.,

(1997), to support her argument that the trial judge's decision not to answer the jury's question

was an abuse of discretion. In Van Winkle, the plaintiff alleged that the defendant conspired with

others to suppress the health hazards of asbestos exposure. Van Winkle,

.

During deliberations, the jury asked a question about the underlying charge of a civil conspiracy,

namely expressing " 'confus[ion] about the meaning of "one or more parties" in a conspiracy' "

and whether it could mean defendant alone or had to be defendant and another company.

. After conferring with counsel for both parties, the trial court referred the jury to the written

jury instructions.

. The appellate court found this response to be an abuse of discretion

warranting reversal. The appellate court first noted that the jury asked a specific question that

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manifested their confusion on a substantive legal issue—who could enter into a conspiracy—

which was critical to deciding the merits of the defense. The court further noted that although the

jury instructions may have been proper, that "is not the determinative inquiry. The issue is

whether the instructions were clearly understandable to the jury.” (Internal quotation marks

omitted.)

. Concluding that the trial court's failure to answer the question substantially

prejudiced the defendant, the court stated: “[I]n the midst of jury deliberations after a vigorously

contested trial, a question from the jury deserves as much—if not more—thoughtful

consideration as did the original instructions.”

.

¶ 32 The Van Winkle court relied heavily on the reasoning of Childs. In Childs, the jury

requested clarification of jury instructions on an “intricate” and “difficult” point of law—whether

a guilty verdict on armed robbery mandated a guilty verdict of murder or still allowed for the

jury to find defendant guilty of voluntary or involuntary manslaughter. In response, the trial court

briefly attempted to answer the question through an ex parte communication, but this response

did not clarify the legal issues raised in the jury's question. While the trial court admitted that it

did not understand the question, it made no effort to clarify the jury's question. The supreme

court found that the question reflected juror confusion over a substantive legal issue and the trial

court had a duty to answer it. Therefore, the trial court's failure to address the problem that

triggered the question substantially prejudiced the defendant. Childs,

. The

supreme court in reversing the judgment concluded, “It is not apparent to us that the manner in

which the court dealt with the jury's inquiry was not a factor in the rendering of that verdict.”

.

¶ 33 Cipolla contends that as in Van Winkle and Childs, the jury's question expressed

confusion about a specific substantive legal issue and the trial judge's refusal to answer it left the

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jury confused as to a fundamental element of employment discrimination, requiring reversal and

a new trial. We disagree. The jury's question, whether "fired" included laid off, terminated, or

elimination of Cipolla's position, was a question of fact for the jury to decide. The jury heard

several witnesses, including village manager Deetjen, testify about the distinction between an

employee being fired and a position elimination, suggesting that Cipolla was not fired because

the decision not "performance based." Village trustee Olejniczak also testified about a factual

distinction between firing, terminating, and eliminating an employee's position, in that firing is

performance-based while a position elimination involves budgetary factors. The jury question in

this case, unlike the jury questions in Van Winkle and Childs, involves a question of fact, not a

question of law. Thus, the trial court did not abuse its discretion in not answering the jury's

question.

¶ 34 We also disagree with Cipolla's contention that the jury's question would have been

avoided if the trial court had given her proposed jury instruction No. 10, rather than only the first

paragraph. The remainder of that proposed jury instruction does not mention layoffs or

elimination of positions or define what those terms mean in relation to the word "fired." The

decision to provide a particular jury instruction lies within the sound discretion of the trial court

and will not be disturbed absent abuse of discretion. Webber v. Wight & Co.,

(2006). Cipolla has failed to show that if the trial judge had given her proposed

instruction, the jury would have not submitted the question or that the trial court abused its

discretion in refusing to do so.

¶ 35 Finally, we note that Cipolla's claim of error is based on the trial court's decision to

refrain from answering a question related to an instruction she tendered. If the jury was confused

about the meaning of the word "fired," it was because Cipolla used that word in a jury instruction

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she tendered (plaintiff's instruction No. 10). By tendering the instruction, Cipolla took the

position that it was an accurate statement of the law, and she cannot now argue error related to

the trial court's decision not to clarify that instruction. Further IPI Civil (2011) No. 250.02, on

which plaintiff's instruction No. 10 was based, gives a party the option of using "discharged"

instead of "fired," which would have been a more accurate description of the village's action—it

discharged her due to the elimination of her position for budgetary reasons. Because Cipolla did

not use the more accurate term when requesting the jury instruction, she cannot now complain.

¶ 36 Defense Counsel's Closing Argument

¶ 37 Cipolla next contends the trial court abused its discretion in denying her request for a new

trial based on defense counsel's comments during closing arguments. The village's attorney

asserted that Cipolla "[was not] fired, at all" because "[t]he Village of Oak Lawn is still

subsidizing her health insurance. They don't do that for fir[ed] employees." Cipolla contends the

statement was false because her contributions to IMRF while she was a village employee entitled

her to health insurance regardless of how her employment was terminated. Cipolla asserts that

defense counsel attempted to confuse the jury by implying that Cipolla's receipt of health

insurance through IMRF necessarily means she was not fired.

¶ 38 The purpose of closing argument is to draw reasonable inferences from the evidence and

assist the jury in fairly arriving at a verdict based on the law and evidence. Copeland v. Stebco

Products Corp.,

(2000) As a result, counsel is afforded wide latitude

during closing argument and may comment and argue on the evidence and any reasonable

inferences that may be fairly drawn from the evidence. Clarke v. Medley Moving & Storage, Inc.,

(2008). “The scope of closing argument is within the sound discretion of

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the trial court and the reviewing court will reverse only if the argument is prejudicial.” (Internal

quotation marks omitted.) O'Neil v. Continental Bank, N.A.,

(1996).

¶ 39 First, we note that defense counsel's assertion that Cipolla was not fired was appropriate

as that was the basis of the village's affirmative defense, namely that her position was eliminated

as part of an overall restructuring of the finance department. Several witnesses at trial provided

testimony to support this defense and witnesses stated that Cipolla was not "fired" for

performance reasons, but rather budget cuts lead to the elimination of her position. Thus,

defense counsel's comments were reasonably drawn from the evidence.

¶ 40 Furthermore, although Cipolla contends defense counsel made a false statement by

stating that Cipolla must not have been fired because fired employees are not entitled to

healthcare benefits, the record does not indicate that defense counsel knew this assertion was

false. Plaintiff's attorney did not object to the statement during the trial and thus, nothing in the

record sheds light on whether the statement was knowingly false. But, even if defense counsel

knew that this assertion regarding Cipolla's entitlement to village subsidized healthcare benefits

was false, Cipolla is unable to show that she was prejudiced by it. The central issue in the case

was whether the village terminated Cipolla because of her age and only used the budget as a

pretext. Answers to the two special interrogatories establish that the jury found the village acted

appropriately. Thus, because defense counsel's comments did not go to the central question—the

reason for Cipolla's termination—Cipolla is unable to show that she was prejudiced by defense

counsel's closing argument, and they do not constitute grounds for a new trial.

¶ 41 Cat's Paw Liability Instruction

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¶ 42 Cipolla next argues the trial court erred in refusing her request to give a cat's paw liability

jury instruction to permit the jury to determine whether the village could be found liable for

Hanigan's discriminatory motive in recommending her termination.

¶ 43 Whether to provide a particular jury instruction lies within the sound discretion of the

trial court, and a reviewing court will not disturb that determination absent a clear abuse of

discretion. Webber v. Wight & Co.,

(2006). It is for the trial court

to evaluate if a jury instruction is “ 'applicable, supported by evidence in the record, and an

accurate statement of the law.' ”

at 1021 (quoting Luye v. Schopper,

(2004)). Litigants are entitled to have the jury instructed as to their theory of the case, but the

instructions they propose “must accurately state applicable law” for them to be given at trial.

(Internal quotation marks omitted.)

Ultimately, no abuse of discretion can be established as

long as “taken as a whole, the instructions fairly, fully, and comprehensively apprise[ ] the jury

of the relevant legal principles” of the case. Schultz v. Northeast Illinois Regional Commuter

R.R. Corp.,

(2002). A new trial will be granted based on the court's

refusal to give a proposed instruction only when that refusal has caused serious prejudice to a

litigant's right to a fair trial. See Stift v. Lizzadro,

(2005).

¶ 44 The cat's paw theory of liability seeks to hold an employer liable when a supervisory

employee acts with discriminatory intent to cause a higher-up employee to take adverse action

against the plaintiff. Staub v. Proctor Hospital,

, ___,

(2011).

The employee with a discriminatory intent does not make the firing decision but influences

another person who unwittingly fires the employee. To succeed under this theory, a plaintiff

must show the nondecisionmaker exercised such “ ‘singular influence’ ” over the decisionmaker

that the decision to terminate was the product of “blind reliance.”

at ___,

.

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(The term “cat's paw” comes from a fable by Aesop and is cited in the employment

discrimination context in Shager v. Upjohn Co.,

(7th Cir. 1990). In the fable, a

monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat does so,

burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with

nothing. A coda to the fable observes that the cat is similar to princes who, flattered by the king,

perform services on the king's behalf and receive no reward. Staub,

, n.1,

.)

¶ 45 The evidence at trial did not warrant a cat's paw liability instruction, and thus, the trial

court did not abuse its discretion in refusing to give it. Several witnesses, including Deetjen,

Hurckes and Olejniczak, testified that Oak Lawn employed a village manager form of

government and that Deetjen, as village manager, had the authority to make all personnel

decisions. It is undisputed that department directors could make recommendations to Deetjen

regarding hiring and firing of employees and that Hanigan, the finance department director,

recommended that the finance department be reorganized by eliminating Cipolla's position and

transferring her job responsibilities to another village employee. But there was no testimony or

evidence indicating that Deetjen blindly relied on Hanigan when he decided to terminate Cipolla.

¶ 46 Moreover, for Cipolla's termination to become final, the budget amendments that

proposed the elimination of the business licensing officer position, as well as three firefighter

positions, had to be approved by a majority of the village board. Board members who voted in

favor of the budget amendment testified their votes were in no way motivated by Cipolla's age.

Thus, in the absence of clear evidence that Hanigan had a discriminatory intent and was a

"singular influence" on Deetjen, a cat's paw liability instruction was not warranted.

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¶ 47 Further, the trial judge did give plaintiff's jury instruction No. 18, which permitted the

jury to find the village liable under an agency theory, namely, that because Hanigan, the village's

agent, improperly discriminated against Cipolla, the principal, the village is liable. An additional

cat's paw liability instruction was not necessary to permit the jury to find the village liable based

on Hanigan's alleged discriminatory comments. Thus, Cipolla was not prejudiced by the trial

court's decision not to give the cat's paw liability instruction.

¶ 48 Denial of Motion in Limine

¶ 49 Cipolla contends she was denied a fair trial when the trial court allowed the village to

present witnesses to deny that Hanigan made statements about Cipolla's age during the April 10,

2008 executive session, while simultaneously permitting the village to claim privilege under the

Open Meetings Act (5 ILCS 120/1 et seq. (West 2012)) as a basis for not turning over the

audiotape.

¶ 50 As noted above, Cipolla filed a motion asking the trial court to either compel the village

to turn over a copy of the audiotape from the executive session or to bar the village from denying

that Hanigan made a statement about Cipolla's age during the session. In her motion, Cipolla

asked in the alternative that the trial court conduct an in camera inspection of the audiotape. The

court granted the alternative relief requested and, after carefully reviewing the transcript and

listening to the audiotape in camera, determined that no mention was made of Cipolla's age and

that nothing of relevance to this case was said in the executive session. Thus, Cipolla was

granted the relief she requested in her motion to compel or bar, and cannot argue that the trial

court erred in denying her motion to compel.

¶ 51 We also do not find that the trial court erred in permitting the village to present witnesses

who testified that Hanigan said nothing regarding Cipolla's age during the executive session. As

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Cipolla notes, before trial she filed a motion in limine asking the trial court to bar the village

from presenting testimony denying that Hanigan made statements about Cipolla's age during the

executive session or in the alternative to bar evidence and testimony relating to the tape of the

April 10, 2008 executive session. Although the trial court's ruling on that motion is not evident

from the record, given that several witnesses testified that Hanigan did not comment on Cipolla's

age during the executive session and no witnesses testified about the tape, it appears the trial

court granted the alternative relief Cipolla requested i.e., by barring any evidence or testimony

relating to the audiotape. Thus, once again, Cipolla cannot be heard to complain that the

alternative relief requested was granted.

¶ 52 Further, as the appellant, it is Cipolla's burden to present a sufficiently adequate record to

support her claim of error. Foutch v. O'Bryant,

(1984). In the absence an

adequate record, it is presumed the trial court's order was in conformance with Illinois law.

Any doubts arising from the incompleteness of the record are resolved against appellant.

As

noted, nothing in the record indicates how the trial court ruled on the motion in limine or the

reasoning behind its ruling. Hence we presume the trial court's ruling was in compliance with

Illinois law.

¶ 53 Evidence Regarding Husband's Business

¶ 54 Cipolla next contends that evidence elicited by the village about the value of her

husband's snack company was more prejudicial than probative and warrants a new trial.

Specifically, plaintiff points to questions from defense counsel, over objection, regarding the

revenue generated by her husband's company, the financial status of her husband's deceased

former business partner, and where the company's products are sold and for how much. Plaintiff

argues that none of this evidence was relevant to her claim of age discrimination and was

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intended to prejudice her by suggesting that her husband's business made so much money that

plaintiff did not need her job at the village. She also contends the trial court erred in permitting

the jury to take documents regarding her husband's business into the jury room, specifically the

corporation's annual report filed with the Illinois Secretary of State, when that document was

only used for impeachment purposes.

¶ 55 Evidence must be relevant to be admissible at a trial. Voykin v. Estate of DeBoer,

(2000). Evidence is only relevant if it proves a fact in controversy or renders a matter

at issue more or less probable. In re A.W.,

(2008).

¶ 56 We agree with plaintiff that evidence regarding the size and revenue of her husband's

business was not directly relevant to her claim of age discrimination. But Cipolla had a duty to

mitigate her damages by seeking employment. ISS International Service System, Inc. v. Human

Rights Comm'n,

(1995) (party alleging employment discrimination required

to make reasonable efforts to mitigate damages by seeking new employment). Cipolla testified

that she was unable to find a position similar to the one she held at the village and became a paid

employee at her husband's company in 2010. Cipolla described her husband's company as a

small business and her position as "lesser" than the one she held at the village. To rebut the

argument that Cipolla's damages may be greater based on her inability to find satisfying

employment, it was proper for the village to question Cipolla about her current position with her

husband's company, including the company's revenues and sales to determine, for damages

purposes, whether her job likely was less fulfilling than her prior position.

¶ 57 Thus, because the questions regarding Cipolla's husband's business were relevant to

damages and plaintiff's efforts in mitigating them, the trial court did not err in permitting the

village to elicit the evidence.

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¶ 58 We also find that the trial court did not err in permitting the jury to take into the jury

room the annual report for Cipolla's husband company, which listed Cipolla as

secretary/treasurer. Relying on Esderts v. Chicago Rock Island & Pacific R.R. Co.,

(1966), Cipolla contends that documents used only for impeachment purposes may

not go to the jury room. In admitting that document into evidence, the trial judge noted that it

could be used substantively and not just for impeachment because Cipolla denied she was the

corporation's secretary/treasurer. Thus, since the document was admitted into evidence, the trial

court did not err in permitting the jury to take it into the jury room. But even if, as Cipolla

contends, she never denied that she had a title with the company but simply stated that she had

never seen the annual report before, the trial court did not err in permitting the jury to take the

document to the jury room. A trial court has great discretion in deciding what documents to send

to the jury room. Brdar v. Cottrell, Inc.,

(2007). The trial court did not

abuse its discretion in permitting into the jury room a document that, as noted above, was

relevant to the issue of mitigation of damages.

¶ 59 Verdict Was Not Against Manifest Weight of the Evidence

¶ 60 Lastly, Cipolla contends the trial court's judgment should be reversed and the case

remanded for a new trial because the verdict in the village's favor was against the manifest

weight of the evidence. “A court of review is empowered to reverse a jury verdict only if it was

against the manifest weight of the evidence.” Ford v. City of Chicago,

(1985). Typically, a verdict will be viewed as being against the manifest weight of the evidence

“where it is palpably erroneous and wholly unwarranted [citation], is clearly the result of passion

or prejudice [citation], or appears to be arbitrary, unreasonable, and not based upon the evidence

[citation].”

In other words, “[w]hen considering whether a verdict was contrary to the

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manifest weight of the evidence, a reviewing court must view the evidence in the light most

favorable to the appellee.”

¶ 61 Cipolla argues the evidence at trial did not support a finding that the village terminated

her employment due to budget considerations. She contends the budget was not on the agenda

for the April 10, 2008 executive session meeting and, moreover, could only have been discussed

in a public meeting. She also asserts that Hanigan's comment that that she was "older" and the

village's decision to hire a budget director and give finance department employees raises in 2008

after she was terminated, shows that the budget was only a pretext and that the real reason she

was let go was her age.

¶ 62 Cipolla's arguments fail for a number of reasons. First, numerous witnesses testified that

the village was having financial issues and needed to cut about $1.4 million from its budget,

which supports a finding that the budget was not a pretext for terminating Cipolla. In addition,

the primary evidence that the village terminated Cipolla because of her age were alleged

statements by Hanigan that she was an "older" employee. But the testimony at trial as to whether

Hanigan made that statement during the executive session was conflicting. Hurckes testified he

heard Hanigan say that Cipolla was older and that he and Olejniczak admonished Hanigan for

the comment. Hanigan denied making any statement about Cipolla's age and Olejniczak denied

hearing it or admonishing Hanigan. Several other Board members also denied hearing the alleged

comment and testified that they voted for the budget amendment for financial reasons and not

because of Cipolla's age. These statements were further supported by the fact that Cipolla was

not the only person to lose her job as a result of the budget cuts—three firefighter positions were

eliminated too. The evidence was conflicting, without a doubt, but when viewed in a light most

favorable to the appellee, the jury's finding that the village did not terminate Cipolla because of

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her age and only used the budget as a pretext was not against the manifest weight of the

evidence.

¶ 63 CONCLUSION

¶ 64 We affirm the trial court orders entering judgment in favor of the village and denying

Cipolla's motion for a new trial.

¶ 65 Affirmed.

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