No. 1-16-0344 Opinion filed May 23, 2017

Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) JERRY WYNN, Appeal from the Circuit Court ) of Cook County. ) Plaintiff-Appellee, ) ) v. No. 12 L 9430 ) ) THE ILLINOIS DEPARTMENT OF HUMAN ) SERVICES, The Honorable ) James E. Snyder, ) Defendant-Appellant. Judge, presiding.

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.

OPINION

¶1 For 13 years Jerry Wynn worked as a contract employee for the Illinois Department of

Human Services. Then his contract was not renewed. Wynn sued DHS under the whistleblower

provision of the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq.

(West 2014). He contended that DHS terminated him in retaliation for reporting an improper

expenditure to an auditor. According to DHS, Wynn and others were terminated under an

agreement between the State and the American Federation of State and Municipal Employees

(AFSCME) to place union employees in positions occupied by contractors and vendors. 1-16-0344

¶2 After a one-day bench trial, Wynn prevailed. The trial court held Wynn proved that his

protected activity—reporting an improper payment to the auditor—was a contributing factor in

DHS not renewing his contract and terminating him.

¶3 DHS argues the trial court erred as (i) nonrenewal of a fixed-term contract does not

amount to unlawful retaliation under the Ethics Act and (ii) the findings were against the

manifest weight of the evidence. We affirm. DHS committed retaliation under the Ethics Act’s

definition of “retaliation,” which includes a change in the terms or conditions of employment.

Further, the trial court’s findings square with the manifest weight of the evidence.

¶4 BACKGROUND

¶5 The evidence at trial established that Jerry Wynn began working as a contract employee

for DHS in December 1997. Wynn was the program administrator of the Chicago Healthy Start

Program, a federal grant program to reduce infant mortality and improve perinatal outcomes.

Wynn’s duties included assuring compliance with grant requirements and preparing grant

applications. Wynn worked in the Bureau of Maternal and Infant Health, an office in the division

of Community Health and Prevention (CHP). Wynn was widely praised by his supervisors, and

his job performance was deemed excellent.

¶6 Wynn worked under successive one-year personal service contracts with DHS except

when, for budget reasons, he was placed on the payroll of DHS vendors from 2003 to 2006

(Springfield Urban League) and from July 2009 through June 2010 (Catholic Charities). Whether

under a personal service contract or on a vendor payroll, Wynn’s position, day-to-day

responsibilities, and supervisor remained constant. Wynn expected his contract would be

renewed every year but he knew he was not entitled to renewal.

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¶7 The Fletcher Process

¶8 In early 2009, DHS began negotiating with AFSCME to replace a number of contract

employees with AFSCME members. This change was prompted by a lawsuit between AFSCME

and DHS, which alleged, in part, that the State had contractors and vendors doing union work

while union employees were being laid off. The circuit court issued an injunction ordering the

state and the union to work with a mediator to resolve the issue, which resulted in a mediated

resolution agreement (MRA). Under the MRA, the state was to make “all reasonable efforts to

terminate *** personal service and vendor contracts” that violated union agreements “no later

than December 31, 2010.”

¶9 DHS referred to the process of converting contract positions to union jobs as the

“Fletcher process” (after the arbitrator). Jeffrey Kunz, DHS’s director of Labor Relations, and his

staff negotiated with the union over contract and vendor positions. Kunz’s staff compiled a list of

DHS personal service contractors and vendors who arguably performed union work. The list,

referred to as a “grid,” included 700 to 800 names. It was fluid; contractors and vendors

continually started and ended during the process, and new names were added.

¶ 10 Beginning in August 2009, Kunz and his staff met with union representatives every other

month to determine, one-by-one, whether someone on the grid should be replaced by a member

of the union. Kunz and his staff had a document listing each contractor’s title, scope of duty,

salary, and start and end dates. If the union took the position that a contract position should be

eliminated because the classification involved union work, Kunz said “that was pretty much the

end of the discussion then. We had no argument to say that was our work.” He said that once a

position was designated as union work, the contractor could be extended temporarily but could

no longer be offered a year-long contract, as that would violate the collective bargaining

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agreement. DHS could retain contract workers who were on short-term contracts of less than one

year and those who performed professional, specialized work, such as information technology

and the practice of medicine.

¶ 11 Vendors did not have job classifications. Kunz said that it took more time to determine

whether a vendor had to be terminated. Kunz referred to Article 29 of the Memorandum of

Understanding with the union, which provided that an employer could “contract out any work it

deems necessary or desirable because of greater efficiency, economy, or other related factors.”

Kunz said that Article 29 applied only to vendors and gave the State some leeway in keeping a

vendor, even if his or her work resembled a union classified job.

¶ 12 Kunz’s job in the Fletcher process was “to advocate for management on behalf of DHS.”

DHS had an internal “Fletcher group,” some 20 to 25 liaisons representing divisions across DHS,

helping streamline the process. The liaisons would explain which contractors they believed were

not doing union work and why; Labor Relations would present that argument to the union. Dan

Blair, CHP’s fiscal manager, and Diane Deppe, a budget manager, were CHP’s liaisons to the

Fletcher group. At trial, Kunz testified that liaisons only provided Labor Relations with

information regarding salaries, contracts, and other necessary information, but acknowledged

that in his deposition he said liaisons made recommendations about which contract employees

should be retained.

¶ 13 Blair testified that as liaison he regularly attended Fletcher group meetings and met

separately with Kunz on several occasions. Kunz generally wanted to know where contract

employees worked, who they reported to, and their scope of duties. Blair and Kunz discussed

contractual information about employees—“the name, the job title, what it equated to, what their

function—you know just details about the job.” Blair could not recall whether he offered

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opinions about specific employees or played any role in decisions on whether a contract violated

the union’s collective bargaining agreement. Nor could Blair recall whether Kunz asked him if

CHP wanted to keep certain contract employees. Blair agreed that individual employee’s names

were discussed at the meetings, but said “it was more discussed on position rather than names.”

Blair also agreed that they would have discussed Wynn’s position, but he could not recall

anything specific that he and Kunz talked about. Blair acknowledged that he likely talked to

Wynn’s supervisors about Wynn’s position, but could not recall the substance of those

conversations.

¶ 14 Blair admitted that on January 14, 2010, he sent an email to the DHS Director, Kunz, and

others stating that 15 names, including Wynn’s, had been added to the Fletcher grid. He did not

know why they were added or who added them. Although the decision not to renew Wynn’s

contract was part of the Fletcher process, Blair could not recall who made the decision, when it

was made, when he heard about it, or who told him. Blair also could not recall if anyone told him

that he or she did not want Wynn to continue in his position.

¶ 15 Diane Deppe, CHP budget manner reported to Blair. She said that only she and Blair

provided information about whether there was money in the budget to continue to fund contract

positions.

¶ 16 Every job in the state system has a working title and classification title. Wynn’s working

title was “Healthy Start Program Administrator.” His classification title was Public Service

Administrator (PSA) Option 6. PSA Option 6 became a union title on December 2, 2008, when

the Illinois Labor Relations Board granted AFSCME’s petition to add it to the category of union

titles and the state agreed, with the exception of about 100 jobs. Wynn’s name appeared on a list

of contractors and vendors gathered by the Fletcher group on August 24, 2009.

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¶ 17 The Audit

¶ 18 In April 2009, around the same time the Fletcher process began, the Illinois Office of

Internal Auditors began auditing Healthy Start. Wynn’s supervisor, Glendean Sisk, asked Wynn

to “take the lead” and handle the audit’s “clinical side,” including issues regarding “client care.”

On November 9, 2009, an auditor called Wynn and asked about a nearly $100,000 payment to

the Springfield Urban League. Wynn told the auditor that he had not authorized the payment and

that the Springfield Urban League was not an approved Healthy Start contractor. Wynn told the

auditor he thought Dan Blair was responsible for the payment as Blair issued checks to Healthy

Start grantees.

¶ 19 Later that day, Wynn sent an email to Sisk, Myrtis Sullivan, CHP’s associate director,

and Ivonne Sambolin, CHP’s director, informing them of his conversation with the auditor.

Sullivan sent a reply email thanking Wynn and asking him to inform them of further inquiries.

Sisk forwarded Wynn’s email to Blair (and copied the other original recipients and Wynn),

asking Blair what he knew about the payment. In a reply email, Blair said the $100,000 payment

was for “technical assistance” and was “the contract [Wynn’s assistant] is paid from.” Wynn

wrote a reply email correcting Blair. Wynn’s assistant worked for Catholic Charities, and not

Springfield Urban League, and she did not begin working for him until May 2008. Blair replied.

He conceded that Wynn was correct, but thought the payment should be considered part of

“technical assistance.” Wynn again responded, telling Blair there was no technical assistance

from Springfield Urban League. That was Wynn’s last communication with Blair about the

payment.

¶ 20 The next day, Wynn saw Myrtis Sullivan, and she said to him, “We[’ve] got to meet with

you, me and the director [are] going to meet with you. You are going to make us lose Healthy

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Start.” Wynn said he asked her “Why? Because I wouldn’t go along with Dan Blair?” and

Sullivan shook her head and said, “Yes.” Wynn told Sullivan he would not lie to an auditor, and

Sullivan repeated that she and the director were going to meet with him, and walked away.

Sullivan had no recollection of this conversation but recalled that she was not upset at Wynn for

talking to the auditor or for sending the emails about the audit and the improper payment.

¶ 21 Wynn also saw Sisk that morning. She said to him, “Why did [you] have to say anything?

I’m sure this was just a one-time thing. Dan just needed to find some money.” Wynn testified

that Sisk criticized him for cooperating with the auditor and said that he should have told the

auditor, “I’ll just let Dan Blair answer that.” Sisk testified that she was not angry with Wynn but

thought Blair should handle questions about the audit. She also said Blair expressed “frustration

that he was not being allowed to respond to the auditor about this” and was perturbed that Wynn

did not refer the auditor to him.

¶ 22 Also that day, Sisk received an email from Deppe regarding a state-issued cell phone that

had been given to Wynn. Deppe explained that “[w]e were supposed to get the cell phones back

from employees that were not State employees.” Deppe reminded Sisk that “some time ago

[Blair] sent an email to you regarding returning [Wynn’s] cell phone since he is not a state

employee.” Sisk answered that Wynn told her he turned in the cell phone the previous week.

¶ 23 In March 2010, Wynn, Sisk, Blair, and others participated in a telephone audit exit

conference at which the auditors provided a summary of their findings. The day before, Sisk

called Wynn and told him to “be quiet as a church mouse” during the conference call and go

along with whatever Blair says. Sisk testified that neither she nor Wynn knew why the improper

payment was made, and she wanted Wynn to let Blair explain it. During the call, one of the

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auditors asked Wynn about the improper payment, and he replied, “let Dan Blair handle it” and

said nothing else about the matter.

¶ 24 Blair remembered the 2009 audit of the Healthy Start program but could not recall much

about it. He could not recall Wynn’s emails informing him that he was wrong about the

payments or an email from the auditor asking him to explain the payment. Blair acknowledged

he forwarded that email separately to Sullivan and Sambolin and asked them to call him, but he

could not recall if they did.

¶ 25 Blair denied personally making the payment to Springfield Urban League and said it was

an error by someone on his staff. He could not recall when he first told anyone else that the

payment was in error but said it would make sense that he told Sullivan and Sambolin in

November 2009. He could not recall if he informed the auditor or Wynn that the payment was

made in error. He discussed the error with Sisk but could not recall if he told her he was

perturbed with Wynn. He thought the auditor’s questions should have been directed to him but

said he was not “irritated” that Wynn answered and did not think Wynn did anything wrong.

¶ 26 Deppe testified that she was aware of the 2009 audit and, although Blair never discussed

it with her, she knew Blair was unhappy with some of Wynn’s responses to the auditor. She said

that Wynn’s participation in the audit was not discussed at the Fletcher meetings and did not play

a role in the information provided to Labor Relations.

¶ 27 On May 12, 2010, after the audit, Myrtis Sullivan sent DHS Director Sambolin an email,

noting Sisk’s concern with (i) the inaccuracy of Blair’s responses to the audit, (ii) Blair’s

attachment of blame for improper use of Healthy Start funds to the Bureau of Maternal and

Infant Health staff, and (iii) the use of the money to “cover bills that were due.”

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¶ 28 Wynn’s Termination

¶ 29 In April 2010, Wynn met with Sullivan and Sambolin, who told him his employment

would terminate as of December 31, 2010, because his position was being given to a union

member. Sullivan was upset about losing Wynn and contacted a federal officer involved in the

Healthy Start program to see if Wynn could be retained. She did not speak to anyone in Labor

Relations about retaining him.

¶ 30 Sisk testified that in early 2010, she, Blair, and Kunz met to discuss Wynn’s position. She

described Wynn’s day-to-day responsibilities, while Blair provided minimal information about

Wynn’s contract. Sisk could not recall advocating for keeping Wynn but had no reason to believe

she did not. She said she learned in April 2010 that Wynn’s contract would be terminated. She

requested that his contract be extended until December 31, 2010, because the division needed

someone in that position. Wynn was given a final contract, from July 1, 2010 until December 31,

2010, which paid a higher rate than his previous contracts.

¶ 31 Sisk encouraged Wynn to apply for the position when it was posted, which he did, but the

position went to someone else. Sisk said that in 2014, all Healthy Start programs were defunded,

and CHP’s application for new funding was not accepted. Sisk also testified that two contract

employees—Joanne Kelly and Xochild Martisoryan, personal service administrators who

reported to her and had been listed on the Fletcher grid with Wynn—stayed with CHP after

December 31, 2010, but were moved to the payroll of a state vendor.

¶ 32 On August 21, 2012, Wynn filed a complaint, which was later amended, alleging, among

other things, that DHS violated the Whistleblower section of the Ethics Act. (Wynn also named

Sisk, Sullivan, Sambolin, and Blair as defendants. The trial court dismissed all individual

defendants and all counts other than the one brought under the Ethics Act.) Specifically, Wynn

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contended that DHS violated section 15-10 of the Ethics Act, prohibiting “retaliatory action

against a State employee” who “[d]iscloses or threatens to disclose to a supervisor or to a public

body an activity *** of any officer, member, State agency, or other State employee that the State

employee reasonably believes is in violation of a law, rule, or regulation.” 5 ILCS 430/15-10(1)

(West 2014).

¶ 33 DHS defended that non-renewal of a fixed-term contract did not constitute a retaliatory

action under the Ethics Act. “Retaliatory action” means “reprimand, discharge, suspension,

demotion, denial of promotion or transfer, or change in the terms or conditions of employment of

any State employee, that is taken in retaliation for a State employee’s involvement in protected

activity as set forth in section 15-10.” 5 ILCS 430/15-5 (West 2014). Moreover, DHS denied a

causal connection between Wynn’s report to the auditor and the decision to terminate his

contract, pointing to the ongoing negotiations with AFSCME.

¶ 34 The Verdict

¶ 35 The trial court held that Wynn engaged in protected conduct under the Ethics Act when

he informed the auditor and his supervisors about the improper payment to the Springfield Urban

League. The trial court found that Wynn reasonably believed he was reporting a violation of

federal law or regulations and proved by a preponderance of the evidence that his protected

conduct constituted a contributing factor in his termination.

¶ 36 The trial court found the evidence showed Blair had a motive to retaliate based on

Deppe’s testimony that (i) Blair was unhappy about Wynn’s response to the audit, which Sisk

corroborated, and (ii) she likely sent the email asking for Wynn’s cell phone at Blair’s behest.

The trial court also found evidence of motive in Wynn’s uncontroverted testimony that Sullivan

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told him that he was risking the Healthy Start program and Sisk’s instruction to be quiet during

the audit exit conference.

¶ 37 As to Blair’s involvement as a liaison to the Fletcher group, the trial court said that it

gave him the means to retaliate against Wynn, since Kunz relied on liaisons to determine what

position to take in negotiations with the union. The trial court noted that the ongoing practice of

transferring contractors to vendors discredited DHS’s claim that Wynn’s job classification

required that his position be converted to a union position. Two of Wynn’s fellow employees

were allowed to stay by way of this manner.

¶ 38 The trial court concluded that DHS failed to prove by clear and convincing evidence that

the Fletcher process would have eliminated Wynn’s job regardless of Wynn’s protected conduct.

The trial court stated DHS’s position would require him to believe that Blair had acted in a

neutral manner in transmitting information to Labor Relations about Wynn’s job. But the trial

court said “I do not believe Blair’s testimony. He was not credible.”

¶ 39 Three months later, after briefing, the trial court entered an order awarding Wynn back

pay in the amount of over $300,000, which it doubled under the Act. The court also imposed 5%

interest on the back pay and awarded attorney fees for a total award of $782,253.54.

¶ 40 ANALYSIS

¶ 41 Retaliation under the Ethics Act

¶ 42 It is undisputed that Wynn engaged in statutorily protected activity under the Ethics Act

when he told an auditor that a payment to a DHS vendor was unauthorized. It is also undisputed

that contract employees are covered under the Ethics Act, which defines an employee to include

“any person employed *** pursuant to a contract.” 5 ILCS 430/1-5 (West 2014). DHS contends,

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however, that Wynn has no cause of action because a decision not to renew an employee’s fixed

term contract does not constitute “retaliation” under the Ethics Act.

¶ 43 A fundamental rule of statutory construction requires ascertaining and giving effect to the

legislature’s intent. People ex rel. Birkett v. City of Chicago,

(2002). The plain

and ordinary meaning of the statutory language best provides the legislature’s intent.

Where

the language is clear and unambiguous, we apply the statute without resort to other aids of

statutory construction and apply it as written.

. A court may not annex new provisions

or substitute different ones or read into the statute exceptions, limitations, or conditions

unexpressed by the legislature. Hines v. Department of Public Aid,

(2006).

The construction of a statute presents a question of law that we review de novo. In re Estate of

Dierkes,

(2000).

¶ 44 DHS asserts that because the definition of “retaliatory action” does not use the word

“include” or “including,” the plain terms limit retaliation to seven actions and cannot be

expanded. See People v. Perry,

(2007) (use of “includes” or “including,”

“when followed by a listing of items, means that the preceding general term encompasses the

listed items, but the list is not exhaustive.”).

¶ 45 Wynn acknowledges that no Illinois court has held that non-renewal of a contract

constitutes “retaliatory action” under the Ethics Act. But Wynn likens the anti-retaliation

provision to the anti-retaliation provision of Title VII of the federal Civil Rights Act of 1991 (42

U.S.C. § 2000e-3(a) (2012)). In the absence of Illinois cases construing the Ethics Act, we may

look for guidance to federal courts interpreting analogous statutes. See Hosick v. Chicago State

University Board of Trustees,

(N.D. Ill. 2013) (“because the anti-

retaliation portion of the Ethics Act is analogous to the anti-retaliation portion of Title VII, the

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Court considers judicial interpretations of Title VII in resolving the issues presented in this

case.”) Under Title VII, an “adverse employment action” is one that “significantly alters the

terms and conditions of employment.” Threatt v. Donovan, 380 Fed. App’x. 544, 548 (7th Cir.

2010). Wynn contends federal courts have found that non-renewal of a contract constitutes an

adverse employment action (see, e.g., Leibowitz v. Cornell University,

(2d

Cir. 2009) (“non-renewal of an employment contract itself is an adverse employment action”)),

and so we should find that non-renewal of a contract constitutes retaliatory action under the

Ethics Act.

¶ 46 DHS asserts, however, that section 15-10 of the Ethics Act should be equated to the tort

of retaliatory discharge, which has been limited by Illinois courts and precludes an employee

from suing for non-renewal of a fixed term contract. DHS cites Crowley v. Watson,

, one of the few cases to interpret the Ethics Act, in which this court stated that a

claim of discharge in retaliation for protected activity is analogous to the tort of retaliatory

discharge, a narrow exception to the at-will employment. Id. ¶ 32. DHS asserts that it is

significant that, in the context of retaliatory discharge, this court has held a contract employee

who engaged in whistle blowing activity may not bring a cause of action for retaliatory discharge

when an employer fails to renew a written fixed-term employment contract. See Krum v.

Chicago National League Ball Club, Inc.,

(2006); Bajalo v.

Northwestern University,

(2006).

¶ 47 In Krum, the plaintiff was an assistant athletic trainer for the Chicago Cubs, working

under a one-year employment contract. Krum alleged that after he complained to management

about violations of the Illinois Athletic Trainers Practice Act (225 ILCS 5/4 (West 2004)), the

Cubs “terminated” him in retaliation, even though they continued to pay his salary until the date

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his employment contract expired. Krum,

. We held, consistent with the

supreme court’s desire to restrict the common law of retaliatory discharge, that “absent a

statutory basis, contractual employees, such as Krum, cannot bring a claim for retaliatory

discharge when employers fail to renew an employment contract.”

. Noting that the

Athletic Trainers Practice Act, on which Krum relied, did not contain any language “prohibiting

retaliatory employment conduct,” the appellate court dismissed Krum’s claim.

¶ 48 Similarly, in Bajalo,

, we considered whether a contract employee

may bring a claim for retaliatory discharge when the employer fails to renew the employee’s

contract. The employee was hired as a research associate. The university renewed the

employee’s one-year contract twice; however, after the employee reported improper laboratory

procedures that she believed jeopardized the health and welfare of the animals to her supervisors

and to regulatory agencies, the university declined to renew her contract, and she was dismissed

after the term of her contract ended.

. The university filed a judgment on the pleadings.

Recognizing “ ‘this is a new and novel situation,’ ” the trial court certified the following question

for interlocutory appeal: “ ‘May a contract employee who engaged in protected whistleblowing

activity bring a cause of action for retaliatory discharge when the employer fails to renew the

employee’s written contract[?]’ ”

.

¶ 49 The appellate court agreed that the employee engaged in protected whistleblowing

activity—exercising her rights under the Federal Animal Welfare Act—but, after reviewing

Illinois Supreme Court cases that have limited the scope of the tort of retaliatory discharge, the

decision in Krum, and decisions in other jurisdictions, we refused to extend it to a claim of

failure to renew an employment contract.

. Even though the employee had had a

working relationship with the employer, the employer was not liable for retaliatory discharge for

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choosing to discontinue a future employment relationship.

. “In light of the clear trend

of retrenchment reflected in our supreme court decisions ***, we agree with the position taken in

Krum.”

See also Darchak v. City of Chicago Board of Education,

(7th Cir.

2009) (noting Illinois appellate courts have expressly refused to extend reach of retaliatory

discharge tort to cover nonrenewal of fixed-term contract).

¶ 50 DHS asserts that—like the plaintiffs in Krum, Bajalo, and Darchak—Wynn held a series

of fixed-term one-year contracts, knew that each contract would expire, and was not entitled to a

new contract unless DHS decided to offer him one. Further, DHS contends that allowing the

contract to expire does not amount to “discharge” under the Ethics Act because Wynn had no

expectation that it would be renewed. DHS asks us to decline to read “failure to renew a fixed

term contract” into the definition of “retaliatory action,” which DHS claims is exhaustively

defined in section 15-5.

¶ 51 Wynn contends that DHS’s reliance on Crowley is misplaced. First, Wynn notes that

Crowley involved neither a contract employee nor does its holding relate to contract employees.

Moreover, Wynn asserts we cannot “graft” the tort of retaliatory discharge onto the Ethics Act,

as doing so would make some of its language superfluous. Specifically, Wynn notes that under

the tort, an employee can prevail only if he or she has been discharged, while the Ethics Act

applies to an employee who has been reprimanded, demoted, or denied a promotion. He asserts

that under DHS’s interpretation, these prohibitions would be rendered naught, which we must

avoid in interpreting a statute.

¶ 52 We agree with Wynn. As noted, the Ethics Act covers contract employees. And although,

as DHS asserts, section 15-5 does not expressly include nonrenewal of a contract in defining

retaliatory action, it includes “change in the condition of employment,” a phrase akin to Title

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VII’s “significantly alters the terms of employment.” Nonrenewal of a contract qualifies as an

“adverse employment action” under Title VII because it is a “change in the terms and conditions

of employment.” Hence, nonrenewal constitutes retaliatory action. Also, as Wynn asserts, courts

limited the scope of the tort of retaliatory discharge for reasons that are inapplicable to cases

arising under the Ethics Act. Courts wanted to circumscribe the tort due to uneasiness with an

“ ‘ill-defined, and potentially all-encompassing concept of retaliatory conduct or

discrimination’ ”; otherwise, courts would “ ‘become increasingly involved in the resolution of

workplace disputes.’ ” Bajalo,

(quoting Zimmerman v. Buchheit of

Sparta, Inc.,

(1994)). But that sort of uneasiness does not pertain to the more

narrowly tailored Ethics Act, which addresses a specific problem related to whistle blowing.

¶ 53 The Ethics Act seeks to encourage employees, including contract employees, to report

wrongdoing without fear of reprisal. There is no question that the State has discretion to not

renew an employee’s contract. But to further the purposes of the Ethics Act, employees subject

to renewal must be protected from pretextual discharge when the evidence supports a finding that

the decision not to renew was motivated by animus for whistleblowing activity. Moreover,

employees like Wynn, who lack protection from a union, can be more susceptible to intimidation

by the threat of nonrenewal. Accordingly, a decision by the State not to renew a contract

employee who engages in protected activity may constitute “retaliation” under the Ethics Act.

¶ 54 Evidence to Support Verdict

¶ 55 Alternatively, DHS argues that the trial court’s findings were against the manifest weight

of the evidence. Further, DHS contends that some alleged retaliatory actions against Wynn could

not be retaliatory—both reclassifying Wynn’s position and requesting his cell phone occurred

before he talked to the auditor. Lastly, DHS asserts that Wynn’s contract would not have been

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renewed regardless, since his position was converted to a union job to comply with the

agreement with AFSCME.

¶ 56 A trial court’s judgment after a bench trial will not be reversed unless it is against the

manifest weight of the evidence. Northwestern Memorial Hospital v. Sharif,

, ¶ 25. “Against the manifest weight of the evidence” means that, based on the record, the

judgment is arbitrary, unreasonable, not based on evidence, or the opposite conclusion is

apparent. Munson v. Rinke,

(2009). We give great deference to the

finder’s credibility determinations and will not substitute our judgment for the fact finder’s.

Samour, Inc. v. Board of Election Commissioners,

(2007) (“fact finder is in

the best position to evaluate the conduct and demeanor of the witnesses”). “[W]e may affirm the

judgment of the trial court on any basis in the record, regardless of whether the trial court relied

upon that basis or whether the trial court’s reasoning was correct.” Alpha School Bus Co. v.

Wagner,

(2009). Nevertheless, we may not overturn a judgment on the

basis that we disagree with it or that, as the trier of fact, we might have arrived at a different

result. Eychaner v. Gross,

(2002).

¶ 57 Under section 15-10, no officer, member, state employee, or state agency shall take any

retaliatory action against a state employee because that employee discloses, or threatens to

disclose, any activity by an officer, member, state agency, or other state employee that the state

employee reasonably believes is in violation of a law, rule, or regulation. 5 ILCS 430/15-10(1)

(West 2014). “Retaliatory action” is defined as “reprimand, discharge, suspension, demotion,

denial of promotion or transfer, or change in the terms or conditions of employment of any State

employee, that is taken in retaliation for a State employee’s involvement in protected activity, as

set forth in Section 15-10.” 5 ILCS 430/15-5 (West 2014).

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¶ 58 State employees, which include contract employees, may establish a violation only by

showing (i) they engaged in conduct described in section 15-10 and (ii) that conduct was a

“contributing factor” in the retaliatory action. 5 ILCS 430/15-20 (West 2014). A defendant may

refute the allegation of retaliation by demonstrating by clear and convincing evidence that the

same unfavorable personnel action would have occurred in the absence of that conduct.

Illinois courts have yet to define “contributing factor” under section 15-20, but federal courts

interpreting that phrase under employment statutes have found that a “contributing factor” refers

to something less than a substantial or motivating factor. Addis v. Department of Labor,

(7th Cir. 2009) (contributing factor standard provides complainant lower hurdle to clear

than bar set by other employment statutes). A “ ‘contributing factor is any factor, which alone or

in combination with other factors, tends to affect in any way the outcome of the decision. ’ ”

Araujo v. New Jersey Transit R. Operations, Inc.,

(3d Cir. 2013) (quoting

Ameristar Airways, Inc. v. Administrative Review Board,

(5th Cir. 2011).

Federal courts also recognize that an employee usually must rely on circumstantial evidence,

including suspicious timing, ambiguous statements, and “other bits and pieces from which an

inference of discriminatory intent might be drawn.” Troupe v. May Department Stores Co.,

(7th Cir. 1994).

¶ 59 The parties agree that Wynn’s conversation with the auditor about the improper $100,000

payment constituted protected activity under the Ethics Act. They disagree, however, about

whether the evidence supported the finding that this protected activity sufficed as a “contributing

factor" to his being terminated.

¶ 60 Before examining the finding of facts surrounding the nonrenewal of Wynn’s contract,

we address DHS’s contention that the trial court identified two additional retaliatory acts—the

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reclassification of Wynn’s job title (which occurred in 2008) and Deppe’s attempt to retrieve

Wynn’s cell phone (a follow-up to a request that had been made before Wynn spoke to the

auditor). DHS contends that it is contrary to the law and common sense and was contrary to the

manifest weight of the evidence to find that actions taken ahead of the protected activity could be

in retaliation for it. We agree; nonetheless, the record shows that the trial court did not consider

these actions as retaliation, but as support for Wynn’s assertion that Blair was angry at him for

talking to the auditor. The trial court did not deem the job classification a retaliatory action;

rather, in its findings of fact, it cites Wynn’s reclassification to show that the Fletcher process

was not identity neutral, as DHS claimed. The point was that Blair’s office sent Wynn’s job

description to the Classifications Unit as well as his resume, a copy of his driver’s license, and

insurance card.

¶ 61 As for Deppe’s email asking for Wynn’s cell phone, again, the trial court did not consider

this as a retaliatory action, but as evidence that Blair was angry at Wynn for talking to the

auditor. The trial court notes that Deppe testified that “Blair was displeased with Wynn’s

response to the audit,” and that Sisk said Blair was “perturbed” and “expressed his frustration”

about “not being allowed to respond to the auditor.” The trial court found that Deppe’s email,

which she said she probably sent at Blair’s request, was “consistent with testimony from other

people that he was angry.” This was circumstantial evidence of motive, and not a finding of

retaliatory action.

¶ 62 Turning to the sufficiency of the evidence, the trial court relied on both direct and

circumstantial evidence to support its finding that Blair was angry with Wynn and retaliated by

ensuring that he would be terminated. As noted, several witnesses testified that Blair was upset

about Wynn’s conversation with the auditor. Blair denied being upset or irritated with Wynn, but

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the trial judge, who was in the best position to evaluate Blair’s conduct and demeanor, viewed

Blair’s testimony as “not worthy of belief.” The trial court sits in a much better position than we

to determine witness credibility. Samour, Inc., 224 Ill. 2d at 548.

¶ 63 As for Blair’s actions, Wynn did not need to show the Blair caused him to lose his job but

was a “contributing factor.” 5 ILCS 430/15-20 (West 2014). The trial court found the evidence

established that Blair played a role in the classification of Wynn’s job, since (i) the classifying

unit acted on information supplied by Blair and reported back to him; (ii) Blair, as a liaison to

Labor Relations, could determine the position DHS took with the union about keeping

employees; and (iii) the process was subjective and diffuse enough to allow Blair to use it to

retaliate against Wynn.

¶ 64 DHS asserts the trial court erred in making this finding because Blair had no role in

classifying Wynn’s position, which was performed by the Classification Unit without reference

to employees’ names. Moreover, DHS notes that Wynn’s job was classified PSA Option 6 in

2008, before the audit. DHS also contends that the record does not support the trial court’s

finding that Blair advised Kunz about which employees to keep and that Kunz advanced Blair’s

arguments with the union. DHS also refers (i) to Deppe’s testimony that at Fletcher group

meetings with Blair, he only provided information about whether DHS had enough money for

certain positions, and (ii) to Kunz not testifying that Blair tired to influence him or advocate for

or against retaining Wynn.

¶ 65 We agree that Blair played no role in classifying Wynn’s position as PSA Option 6, and it

could not logically be deemed as retaliatory action. The record, however, belies DHS’s

contention that the Fletcher process was identity neutral and dependent solely on job

classification. Kunz testified that his job was to keep as many contract employees as the liaisons

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wanted, and the liaisons’ job was to give Labor Relations the argument for keeping a contract

employee. If the determination was based on job classification alone, Kunz and the liaisons

would have no argument for retaining contract employees whose job titles were deemed union

work. Moreover, Sisk testified that she met with Kunz and Blair to discuss Wynn’s role and

responsibilities and his contract, which at that time was with a vendor, Catholic Charities. If the

determination was based solely on job classification, this type of meeting would have been

unnecessary.

¶ 66 As for Blair’s role, as CHP’s liaison to the Fletcher group, he met privately with Kunz to

discuss certain positions. In his deposition, Kunz acknowledged that liaisons made

recommendations about which contractors should or should not be retained and testified that if a

liaison told him they had no problem eliminating a contractor, the contractor was terminated.

Further, Kunz testified that Labor Relations “negotiated” with the union and, although Kunz said

that a PSA Option 6 would be a tough sell, he did not rule it out.

¶ 67 DHS also contends that Blair lacked a motive to retaliate. There were no adverse

consequences to him or anyone else for the improper payment, and DHS points to Blair’s

testimony that audit findings were fairly common and were only serious if they involved an

intentional misuse of funds. Also, DHS refers to Sisk’s testimony that there were three findings

during the audit, including the Springfield Urban League payment. But the evidence shows that

parties involved were worried about it, as they tried to figure out why the payment was made,

and this anxiety continued after May 2010, when Sullivan sent an email to Sambolin expressing

Sisk’s concern that Blair was going to blame the improper payment on her department. Although

evidence about the audit was limited due to DHS’s pre-trial motion in limine, it strains credulity

to think that an audit finding of a $100,000 improper payment had no repercussions. Sullivan’s

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email, stating that Sisk didn’t want her department to be blamed, indicates the audit finding had

repercussions. And, the evidence shows Blair, head of fiscal services, was none too pleased with

Wynn identifying him as the source of the improper payment.

¶ 68 DHS argues the trial court’s finding that Sisk and Sullivan lacked retaliatory motive

negates a finding that nonrenewal of Wynn’s employment was motivated by animus. Sisk said

she valued Wynn as an employee and encouraged him to apply for the position and Sullivan tried

to keep him on by contacting a federal officer involved in the Healthy Start program. But to

prevail, Wynn was not required to show animus on their part. Still Sisk and Sullivan’s statements

and actions support the judge’s finding that Blair was angry. It is reasonable to conclude that

Sisk knew Blair was angry and for that reason asked Wynn why he said anything to the auditor

and told him to be “quiet as a church mouse” at the exit conference. This is supported by her

testimony that she thought Blair was frustrated and “perturbed.”

¶ 69 DHS asserts the termination of Wynn’s employment, coming five months after his

protected discussion with the auditor in November 2009, was too remote to support a finding of

causation. Additionally, DHS asserts that the judge erred in finding the March 2010 audit exit

conference was part of Wynn’s protected activity and then using it to shorten the temporal link

between his protected activity and termination.

¶ 70 Taking DHS’s second contention first, nothing in the record supports a finding that the

trial court found that the audit exit conference itself was protected activity. The trial court stated

that proximity in time between the audit exit conference and Wynn’s termination was indirect

evidence of protected activity and the reporting of an improper payment during the ongoing audit

served as a contributing factor in the termination decision. It would make sense that, in the

context of an audit, any retaliatory action would not occur until completion of the audit. The

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audit ended in March 2010; the following month, April 2010, Wynn was informed about his

impending termination.

¶ 71 Suspicious timing is one of many types of circumstantial evidence of wrongful

termination. Troupe,

. “A specified time period cannot be a mechanically applied

criterion. A rule that any period over a certain time is per se too long (or, conversely, a rule that

any period under a certain time is per se short enough) would be unrealistically simplistic.”

Coszalter v. City of Salem,

(9th Cir. 2003). DHS cites several cases in

which a short time span between the protected activity and the retaliation was deemed prima

facie evidence of retaliation. Be that as it may, DHS does not cite any authority to support its

contention that five months is too long. Indeed, courts have held that “[d]epending on the

circumstances, three to eight months is easily within a time range that can support an inference

of retaliation.” Coszalter,

. Even an 11-month gap has been regarded as within

the range to support an inference that an employment decision was retaliatory.

(citing Allen v.

Iranon,

(9th Cir. 2002)). The audit took nearly a year to complete, so the

retaliatory action, coming five months after the protected activity and only one month after the

completion of the audit, follows sufficiently close enough to support an inference of retaliation.

¶ 72 Another DHS argument assumes Wynn would have been terminated even in the absence

of his protected activity, in light of the State converting contract employees to permanent union

employees. Because Wynn’s job title had been classified as a union title in 2008, DHS maintains

that Wynn could not have retained his job without violating the union’s collective bargaining

agreement.

¶ 73 Section 15-20 of the Ethics Act provides, “It is not a violation *** if it is demonstrated by

clear and convincing evidence that the officer, member, other State employee, or State agency

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would have taken the same unfavorable personnel action in the absence of that conduct.” 5 ILCS

430/15-20 (West 2014). Courts have defined clear and convincing evidence as the degree of

proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the

proposition in question. Bazydlo v. Volant,

(1995). Clear and convincing

evidence requires more proof than a preponderance while not quite approaching the most

difficult level of proof necessary to convict a person of a criminal offense.

¶ 74 The trial court stated that accepting Wynn would have lost his position anyway requires

believing Blair was neutral in gathering and transmitting information and categorizing jobs. But

the trial court found Blair’s testimony not to be credible, noting that Blair could not recall

important events, including the audit exit conference. The trial court also found Blair’s denial

that he was upset with Wynn belied by the testimony of several witnesses.

¶ 75 Further, the evidence showed that at least two contract employees similarly situated to

Wynn remained employed after December 31, 2010, having been transferred to a vendor agency.

¶ 76 We agree with the trial court determination regarding DHS’s claim that Wynn’s job

classification mandated that his position be converted to a union position. This claim was

discredited by the continuing practice of transferring contractors to vendors and the evidence that

classification alone was not the sole factor in determining whether a position was deemed union

work. In sum, DHS failed to present clear and convincing evidence to show not that Wynn may

have lost his job regardless of his protected activity, but that he would have lost it.

¶ 77 Wynn did not need to prove Blair caused him to lose his job but only that he played a

role. The trial court’s finding that the evidence showed Blair had motive and opportunity to

terminate Wynn’s employment was not against the manifest weight of the evidence. We find no

basis for reversing the trial court’s findings of fact or its judgment.

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¶ 78 Lastly, in its reply brief, DHS cites two statutes, the Illinois Human Right Act and the

Illinois Whistleblower Act, to bolster its argument that the legislature made a deliberate decision

to exclude an employee’s discharge in the form of nonrenewal of a contract as retaliation under

the Ethics Act. Wynn filed a motion for leave to file a surreply, which we have taken with the

case, arguing that these DHS’s assertions regarding those statutes were waived because they

were not raised in the opening brief. We agree. Illinois Supreme Court Rule 341(h)(7) (eff. Jan.

1, 2016) provides that points not argued in appellant’s opening brief “are waived and shall not be

raised in the reply brief, in oral argument, or on petition for rehearing.” Because DHS failed to

raise those statutes in its opening brief, that point has been forfeited, and we will not consider it

further.

¶ 79 Affirmed.

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