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Friday, October 18, 2019

Retaliation suit settles on eve of trial after late attempt by defense to argue worker was employed by the SAO, not Madison County

Federal Court

By Record News | Aug 26, 2019


Gibbons and Gilbert

BENTON – Former Madison County secretary Andrew Kane and the county agreed to settle his retaliation suit on Aug. 21, six days before trial would have started. They reached the agreement while Daly pondered rules for the trial. 

Kane wanted her to allow testimony that his former supervisor, Kevin Hendricks, lost his job due to a sexual harassment complaint. 

The county wanted her to rule that Kane was employed by state’s attorney Tom Gibbons and not by Madison County. 

Daly heard arguments over these points on Aug. 15, and reserved ruling. 

Lee Barron of Alton filed the suit for Kane against the county and Gibbons in 2016. 

The suit claimed Gibbons fired Kane for filing a harassment complaint against Hendricks. 

He alleged retaliation and gender discrimination. 

According to the suit, the Illinois Department of Human Rights found violations, and that an arbitrator ordered defendants to reinstate him. Defendants refused to reinstate him, but a Madison County judge later required to order reinstatement. 

Defendants allegedly created a demeaning position inconsistent with the duties of Kane’s position and barred him from appearing at the main office. 

Hendricks, who allegedly subjected Kane to discrimination and retaliation, continued to supervise him. 

Instead of disciplining Hendricks, defendants allegedly gave him a substantial raise and additional valuable perquisites, the suit claimed. 

County counsel John Gilbert moved to dismiss the suit, claiming the county didn’t employ Kane. 

Senior District Judge Phil Gilbert denied the motion, finding Kane believed the county was one of his employers. 

Judge Gilbert wrote that employment was a common sense concept, and questions about it were better suited to the summary judgment stage. 

County counsel Gilbert renewed the dispute in 2017. 

“The state’s attorney has his own personnel policies as well as exclusive and unfettered control and supervisory authority over his employees,” Gilbert wrote. 

Barron responded that Kane received tax forms from the county and received the county’s personnel policy handbook, the purpose of which was to implement and maintain a uniform system of employment within all departments.  

Gilbert set a trial date, but the court clerk reassigned the suit to District Judge Michael Reagan in 2018. 

When the county moved to continue the trial, Reagan denied the motion but advised the parties they consent to assignment of a magistrate judge. 

They consented, and the clerk assigned Magistrate Judge Stephen Williams.    

Last October, he granted summary judgment against discrimination claims but denied it against the retaliation claim. 

Williams wrote that jurors could find that actions of the defendants constituted animus and retaliation, especially when viewed as a whole. 

He found enough evidence for jurors to infer a connection between the filing of Kane’s harassment claim against Hendricks and the adverse actions he faced. 

William resigned this January, and Daly took the case. 

On Aug. 1, county counsel Narcisa Przulj moved for a ruling that the state’s attorney was the only proper defendant. 

“Defendants hereby request that this court bar plaintiff from seeking any relief from Madison County as a distinct entity and that the remaining retaliation claim in the present case is only asserted against the state’s attorney,” Przulj wrote. 

She also moved to exclude evidence regarding other harassment complaints against Hendricks. 

On Aug. 8, Barron responded that Hendricks left the employment of defendants after a female employee filed a complaint. 

Barron wrote that harassment of another subordinate following Hendricks’s treatment of Kane was relevant to motive, intent, and lack of mistake. 

At a hearing on Aug. 15, counsel for the county cited a Seventh Circuit opinion for its argument that the county didn’t employ Kane. 

Daly gave Barron time to respond, and he responded on Aug. 19. 

Barron wrote that the Seventh Circuit opinion didn’t apply to this case. He wrote that Kane didn’t claim the county was his indirect employer, but asserted that the county was his employer. 

The county paid him, administered his benefits, and created a personnel handbook that defined and controlled his employment, he wrote. 

“If plaintiff had sued only the Madison County state’s attorney, defendants would be arguing that plaintiff sued the wrong defendant and seek dismissal on the grounds that plaintiff’s real employer was Madison County government,” he wrote. 

Rather than wait for rulings, the county and Kane decided to settle. 

Daly signed an order giving them 60 days to finalize their agreement.

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