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Sunday, August 25, 2019

Retaliatory discharge suit against Gibbons’ office set for trial Aug. 27 in Benton

Federal Court

By Record News | Aug 14, 2019


Przulj

BENTON – Andrew Kane, who alleges retaliation in the office of Madison County state’s attorney Tom Gibbons, wants jurors to know that a harassment complaint cost former supervisor Kevin Hendricks his job. 

On Aug. 8, Lee Barron of Alton wrote for Kane that Hendricks left the office after a female employee filed a complaint against him. 

He wrote that the evidence is admissible for reasons including motive, intent, and lack of mistake. 

“Furthermore, this evidence is admissible for impeachment purposes,” Barron wrote. 

Gibbons and the county have asked U.S. Magistrate Judge Reona Daly to exclude the evidence from a trial she plans to start on Aug. 27. 

Kane started working as a secretary for Hendricks in 2011. 

Hendricks initiated disciplinary proceedings against Kane, and assistant state’s attorney John McGuire terminated him in 2012. 

His union filed suit in Madison County court to get his job back, and former judge Barbara Crowder ordered Gibbons to reinstate him. 

In 2013, Kane filed harassment complaints against Hendricks with the state human rights department and the U.S. Equal Employment Opportunity Commission. 

Gibbons reinstated Kane months after Crowder ordered it, and Hendricks assigned Kane to a remote location with chores Kane found demeaning. 

Kane found another job in 2014. 

He sued the county and Gibbons’s office in 2016, alleging sex discrimination and retaliation under U.S. civil rights law and Illinois human rights law. 

Senior District Judge Phil Gilbert presided at first, but Chief District Judge Michael Reagan assigned it to himself in April 2018. 

He set trial for last October. 

In May 2018, Gibbons and the county moved to continue it.  

Reagan denied the motion but advised the parties that they could consent to assignment of a magistrate judge. 

They consented last August, and former judge Stephen Williams took charge. 

Last October, he granted summary judgment for the county on discrimination and denied it on retaliation. 

“The parties do not dispute that plaintiff engaged in protected conduct,” Williams wrote. 

He wrote that he wouldn’t consider an arbitrator’s report because statements in it and admissions by defendants were not admissible. 

Williams also held that there was other evidence from which a jury could find retaliation. He found evidence of a drawn out battle over the disciplinary proceedings. 

He wrote that defendants didn’t return Kane to work after an arbitrator’s decision in his favor, and that the union was forced to compel his reinstatement. 

He found issues of fact as to whether Kane was subjected to adverse conditions after returning to work. 

He wrote that Kane didn’t receive health insurance or pay, although he was later awarded back pay. 

“The jury could find these actions of the defendants constitute animus and retaliation, especially when viewed together a whole,” Williams wrote. 

He wrote that a jury could find that the actions of defendants would deter a reasonable person from engaging in protected conduct. 

He found enough evidence for a jury to connect the filing of Kane’s harassment claim and the adverse actions he faced. 

He wrote that there were other explanations for the conduct but it was for a jury to sort out the motives. 

Williams resigned, and the case passed to Magistrate Judge Mark Beatty in January. 

He reassigned it to Daly. 

On Aug. 1, for Gibbons and the county, Narcisa Przulj of Edwardsville moved to exclude evidence of other harassment complaints against Hendricks. 

Przulj asked Daly to prohibit evidence about the complaint and the investigation, and to prohibit allegations or insinuations that Hendricks resigned as a result. 

She called it inadmissible character evidence, irrelevant and unduly prejudicial. 

She moved to exclude arbitration records as hearsay, pointing out that Williams ruled them inadmissible, and moved to bar any argument that Kane’s termination was part of the retaliation.

Again, Daly relied on Williams, who found that the initial reason for termination was

Kane’s conduct and comments rather than discrimination. 

In response a week later, Barron opposed exclusion of evidence about other complaints against Hendricks. 

Barron wrote that Hendricks sexually harassed Kane and the human rights department found substantial evidence of it. 

He wrote that defendants took no action after the department made its finding. 

“Defendants will argue that plaintiff’s actions in the work place justified the disciplinary action defendants took against plaintiff,” Barron wrote. 

“The evidence will be that Hendricks engaged on multiple occasions with other employees and with plaintiff in much more egregious actions than those alleged against plaintiff. 

“The admission of Hendricks’ misconduct, which did not result in discipline, is probative that defendants’ reasons given for the action taken against plaintiff is pretextual and false and that the real reason was and is an unlawful reason.” 

He opposed exclusion of termination as evidence of retaliation, writing that success of a retaliation claim does not rest on success of a discrimination claim. 

“Plaintiffs frequently win a retaliation claim even if not successful on the underlying discrimination claim,” Barron wrote. 

He opposed prohibition of claims against the county, writing that W-2s and other tax documents show the county as Kane’s employer. 

He wrote that Kane was subject to county personnel policies.

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