IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DARLENE SHEILS, ) 

 ) 

 Plaintiff, ) Case No. 12 CV 2766 

 v. ) 

 ) Judge Manish S. Shah 

GATEHOUSE MEDIA, INC., ) 

GATEHOUSE MEDIA SUBURBAN ) 

NEWSPAPERS, INC., and SHAW ) 

SUBURBAN MEDIA GROUP, INC., ) 

 ) 

 Defendants. ) 

DEFENDANTS' SUPPLEMENTAL MOTION FOR JUDGMENT 

AS A MATTER OF LAW OR, IN THE ALTERNATIVE, 

FOR A NEW TRIAL OR REDUCTION OF DAMAGES THROUGH REMITTITUR

Defendants (collectively "GateHouse"), by their attorneys, submit their Supplemental 

Motion for Judgment as a Matter of Law pursuant to Fed.R.Civ. P. 50(a) and (b), or alternatively, 

Motion for New Trial or remittitur pursuant to Fed.R.Civ. P. 59. 

I. INTRODUCTION 

The jury issued a verdict in favor of GateHouse on Plaintiff's FMLA interference claim 

relating to her return from medical leave in January 2010, and in favor of Plaintiff on Plaintiff's 

FMLA retaliation claims, overtime claim, and Illinois common law retaliatory discharge claim 

related to her exercise of rights under the Illinois Workers' Compensation Act. The verdicts and 

corresponding damage awards are not, however, reasonably based on the record evidence, are 

inconsistent, are not mathematically based on the damages calculations provided to the jury, and 

indeed, are against the manifest weight of the evidence. To supplement the arguments contained 

in GateHouse's Motion for Judgment as a Matter of Law with respect to liability (Docket #97), 

and its March 30 oral Motion for Judgment as a Matter of Law with respect to damages, 
GateHouse specifically notes the following evidentiary deficiencies, and mistakes by the jury 

based on the record evidence, which warrant entry of judgment as a matter of law, or a new trial 

or reduction of damages. 

First, the jury's backpay award on the FMLA retaliation claim for Plaintiff's discharge is 

not supported by the evidence. The record evidence demonstrates Plaintiff was not able to work 

upon the April expiration of her FMLA leave. The record evidence also demonstrates 

GateHouse would have terminated Plaintiff's employment at or shortly after her leave expiration. 

Consequently, Plaintiff is not entitled to any backpay compensation or benefits. 

 Second, the jury's award bears no relationship to the emotional distress Plaintiff allegedly 

experienced in light of her minimal admitted "garden variety emotional distress" testimony. 

Plaintiff was never diagnosed with any depression or anxiety, and admitted she never received 

treatment by a mental health provider. While the lack of medical evidence does not preclude an 

award of damages, it should limit the amount of damages she can demonstrate. In light of 

Plaintiff's testimony with respect to her alleged emotional distress, there is no rational connection 

between the evidence and the $60,000 award, especially if the backpay damages are disallowed. 

Third, the jury's $125,000 award of punitive damages is not predicated on testimony of 

willful and wanton conduct by GateHouse. Accordingly, a punitive damages award in the 

amount rendered is improper. Without regard to emotional appeals, there is no record evidence 

of any intentional, reprehensible conduct by Gatehouse. In fact, all of its witnesses testified they 

unequivocally believed Plaintiff was more qualified than Lynn Adamo or Sue Krisch for the two 

post reorganization jobs. And, once again, if the jury's backpay damages award is reduced or 

eliminated, the punitive damages award, an award Plaintiff tied to the actual damage award, is 

excessive and improper. 

2 
Fourth, the jury's finding that Plaintiff's January 2010 demotion was in retaliation for her 

FMLA claims is not supported by the evidence, and is not reasonable in light of the jury's verdict 

for GateHouse on Plaintiff's FMLA interference claim. As the Court set out in its March 11, 

2015 Order (Docket #88), "plaintiff's interference claim and FMLA retaliation claim based on 

her demotion are largely coextensive, but with only slight differences in the elements." No 

retaliation could have occurred given the jury's decision no interference occurred. 

 Finally, the jury's damage awards do not make arithmatic sense based on the evidence. 

Despite being provided charts and explanations for the calculations for any damage awards, the 

jury incorrectly rendered damage awards based on something other than the evidence. 

II. LEGAL STANDARD 

GateHouse's Motion for Judgment as a Matter of Law is based on Fed. R. Civ. P. 50(a) 

and (b). In ruling on this Motion, the Court may allow judgment on the verdict, order a new 

trial, or direct the entry of judgment as a matter of law after the jury returns a verdict. 

 On a Rule 50 motion, "the question is not whether the jury believed the right people, but 

only whether it was presented with a legally sufficient amount of evidence from which it could 

reasonably derive its verdict." Massey v. BCBS of Illinois, 226 F.3d 922, 924 (7th Cir. 2000). 

There must have been more than a mere scintilla of evidence to support the verdict. Id. 

Rule 59(a) allows the court to grant a new trial after a jury trial "for any reason for which 

a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 

59(a)(1)(A). The court has broad discretion in determining whether to grant a new trial. 

McNabola v. CTA, 10 F.3d 501, 516 (7th Cir. 1993). The court should grant a new trial under 

Rule 59 where "the record shows that the jury's verdict, on the record, cries out to be overturned 

or shocks the conscience." Latino et al. v. Kaitzer et al., 58 F.3d 310, 315 (7th Cir. 1995). 

3 
III. ARGUMENT 

A. GateHouse Is Entitled To Judgment As A Matter Of Law On The Backpay 

Issue Because Plaintiff Was Unable To Return To Work Upon The 

Expiration Of Her FMLA Leave In April 2011 

Despite Plaintiff's belief she could return to some unspecified less demanding work at the 

end of her FMLA leave without the use of her right arm, the jury's verdict and backpay award in 

the amount of $62,036.01 is not sufficiently supported by record evidence because GateHouse 

persuasively met its burden of proof set out in the backpay jury instruction.1 The testimony 

established Plaintiff was not physically capable of returning to work in April 2011 when her 

FMLA leave expired, and thus would have been discharged. Plaintiff's mere contrary belief and 

her questionable introduction of GateHouse's accommodation and light duty policies, her only 

evidence, do not support backpay. The jury's findings against GateHouse during the liability 

phase are not an appropriate reason to ignore the facts and misapply the law to those facts during 

the damage phase. A plaintiff's inability to work bars her from recovering backpay for unlawful 

retaliation under both the FMLA and Illinois laws concerning retaliatory discharge. Colburn v. 

Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 333-34 (1st Cir. 2005 (FMLA); Kirchner 

v. Sunbelt Rentals, Inc., 2011 U.S. Dist. LEXIS 36399, *26 & n.2 (N.D.Ill. 2011) (FMLA); Dale 

v. S.Cent. Ill. Mass Transit Dist., 2014 IL App (5th) 130361, ¶33-34 (5th Dist. 2014) (Illinois 

law). The Court should correct the jury's failure to follow the instructions and apply the facts to 

the law by finding Plaintiff is not entitled to an award of backpay on her FMLA retaliation 

discharge claim or on the retaliatory discharge claim. 

 

1

 The instruction states: "If defendant has established that plaintiff was unwilling or unable 

to work after the expiration of her FMLA leave in April 2011 and, as a result, defendant would 

have discharged her, then you may not award back pay for any time after defendant would have 

discharged plaintiff." (Tr.Vol.6; pp.198:23-25; 199:1-2 -- all cited pages are attached). 

4 
1. Unlike Plaintiff, Caroll Stacklin, The Only Witness Who Saw The Jobs Being 

Performed, Offered Competent And Uncontroverted Testimony That The 

Use Of Two Arms Is Required To Perform Krisch And Adamo's Jobs

Caroll Stacklin competently testified about the physical requirements of the Senior 

Production Coordinator and Ad Traffic Coordinator positions. For Sue Krisch's position, 

Stacklin offered knowledgeable testimony related to the extensive typing and two-arm 

requirements of the job. (Tr.Vol.6; pp. 119:23-25; 120:1-9). As Stacklin explained, Krisch's job 

was "all typing and writing." The job required typing on instant messaging, on Skype, to track 

records in the system, and also writing down extensive numbers and letter codes while 

communicating in the typed chats to pull up the coded documents. (Id.) Stacklin unequivocally 

testified nobody could have performed Krisch's job with one hand at an acceptable production 

level. (Tr.Vol.6; p. 120:10-12). Stacklin also offered knowledgeable testimony related to the 

similar extensive typing and mouse work necessary to perform Lynn Adamo's computerized job. 

(Tr.Vol.6; p. 121:12-21). Again, Stacklin specifically testified nobody could perform Adamo's 

job at an acceptable level using one hand or arm. (Tr.Vol.6; p. 121:22-24). 

 In addition to her uncontroverted testimony that Adamo and Krisch's jobs required the 

use of two hands or arms, Stacklin also testified regarding the rapid pace of those jobs. 

Q. So working - - so the inability to work at a rapid pace without a 

- - would that have disqualified them from - - someone who 

couldn't do a job - - either of those two jobs? 

A. The inability to work at a rapid pace? Yes. 

Q. Yeah. 

A. Yeah. 

(Tr.Vol.6; p. 122: 18-23). Stacklin's uncontroverted testimony about the physical requirements 

of the Krisch and Adamo positions establishes Plaintiff did not possess the physical capabilities 

to perform either job at the expiration of her leave in April 2011. 

5 
2. Caroll Stacklin And Laura Williams Testified Competently And Without 

Contravention Plaintiff Would Have Been Discharged At The End Of Her 

FMLA Leave In April, Or Shortly Thereafter, Because Her One-Arm 

Restriction Precluded Her From Working At GateHouse Until November 

In connection with Caroll Stacklin's competent testimony that the jobs performed by 

Lynn Adamo and Sue Krisch could not be performed with only one hand or arm, Gatehouse, 

through Stacklin and Laura Williams, offered further competent and uncontroverted testimony 

that Plaintiff would have been terminated at the end of her FMLA leave in April 2011, or shortly 

thereafter. Stacklin clearly testified that while an employee would typically be terminated at the 

end of the 12-week FMLA leave period if they could not then physically return, they would not 

be automatically terminated if they asked to extend their unpaid leave by one or two weeks. 

(Tr.Vol.6; pp. 118:23-25; 119:1-7). However, Stacklin testified such a minimal extension never 

occurred, and nobody who was unable to return to work after 12 weeks kept their job. (Tr.Vol.6; 

p. 118:12-14). Stacklin also testified nobody who required nine months of unpaid leave was or 

ever would be returned to their position after finally being medically released. (Tr.Vol.6; p. 

118:15-18). Stacklin's testimony is consistent with GateHouse's FMLA Policy: "Failure to return 

to work at the expiration of your leave will subject you to voluntary separation of employment 

for job abandonment. Before making any such decision, GateHouse Media will determine if 

another leave is required or appropriate." (Joint Ex. 11). In Plaintiff's case, had she not been laid 

off in February 2011, she would have been discharged in April 2011, or shortly thereafter, due to 

her physical inability to return to work. Stacklin also testified GateHouse's business and staffing 

conditions would not have permitted them to maintain Plaintiff's employment from April to 

November 2011, while she was unable to work. (Tr.Vol.6. p.119:12-22). 

 Laura Williams testified similarly to Stacklin. Specifically, Williams testified that an 

employee on FMLA leave who was unable to return to work would be terminated at the end of 

6 
the 12-week leave unless an employee requested an additional few weeks of leave beyond the 

12-week limit. (Tr.Vol.6; p. 133:10-12; 134:16-22). But, without regard to a few weeks 

extension for a defined, short time transition period to full duty, both witnesses testified any 

employee with a long-term need for additional leave, like Plaintiff's seven month extended need, 

would have been terminated. 

 Through Stacklin and Williams, the two witnesses competent to testify on the subject, 

GateHouse explained its FMLA leave policy and clearly established Plaintiff would not have 

been permitted to take an additional indefinite, eventual seven-month unpaid leave beyond what 

is required by the FMLA. Such an extended leave has never occurred at GateHouse, and the law 

does not require such an extended leave. Plaintiff would have been terminated in April 2011 or 

shortly thereafter based on her physical inability to return to work. 

3. Plaintiff's Trial Testimony Does Not Sufficiently Demonstrate She Could 

Work At GateHouse Between March 10, 2011 And November 28, 2011 With 

Only The Use Of Her Non-Dominant Arm

On January 18, 2011, Plaintiff commenced her 12-week FMLA leave which would expire 

on April 18. (Tr.Vol.6; pp 54:25; 55;1-2). From March 10 to November 28, 2011, Plaintiff was 

restricted from working with her right arm. (Tr.Vol.6; p. 59:7-12) (Pl. Ex. 40; Def. Ex. 4-10). 

Plaintiff is right-hand dominant. (Tr.Vol.6; p. 60:2-4). On February 3, 2011, Plaintiff applied 

for the open Senior Production Coordinator and Ad Traffic Coordinator positions. (Joint Ex. 6). 

An essential requirement of both positions is the ability to "work at a rapid pace." (Joint Ex. 1-

2). Plaintiff did not receive a job offer for either position and was laid off in February 2011 as 

part of a reduction in force. None of these facts are in dispute. 

 When asked at trial about her ability to work with only her left hand prior to November 

28, plaintiff testified: "Well, I had been practicing on the mouse and typing every day at home, 

7 
and I was getting faster at it, and I was keeping up with the new programs." (Tr.Vol.6; p. 31:7-

11). When asked how her ability to type on a keyboard and use the mouse was affected by her 

restriction, Plaintiff testified: "Well, I'd be a little slower, uh-huh." (Tr.Vol.6; p. 31:17-19.) 

 Without regard to her assertions about the intent behind her contrary workers' 

compensation admissions, Plaintiff's sole counter to Stacklin's testimony was Plaintiff's belief 

she could have performed Krisch and Adamo's job, albeit more slowly, with only one hand as of 

April 2011 (Tr.Vol.6; p. 77:20-23). But, Plaintiffs' belief is not persuasive evidence. 

Significantly, she did not testify she could perform the duties of those positions at the required 

rapid pace. Nor did Plaintiff add any detail to her bare bones testimony that she was practicing

and getting faster at using the mouse or typing. Other than to simply state what she was doing, 

she did not testify as to how she was progressing, including what production level she achieved. 

So, while Plaintiff may truly have been getting faster, and while she may truly believe she could 

have physically performed the two new positions with one hand and arm at a lower production 

level, her beliefs are not persuasive evidence and do not reasonably contradict the testimony 

from the GateHouse employees with actual knowledge of the positions. This is not a credibility 

issue or an instance where there are two competing versions of the facts. Rather, on the one 

hand, Stacklin testified with first-hand knowledge about the job responsibilities and required 

pace. On the other hand, Plaintiff testified that she believes she could have performed some of 

that work because she was strengthening her weak hand. And, the GateHouse policies 

specifically support termination at the expiration of the FMLA period if the employee is unable 

to return. Despite Plaintiff's beliefs, all the competent record evidence demonstrates Plaintiff 

could not have performed either of the two positions at an acceptable production level using only 

one hand or arm, and that GateHouse would have terminated her when she could not return. 

8 
4. Plaintiff Never Saw The Jobs Being Performed By Lynn Adamo And Sue 

Krisch So She Had Limited Knowledge About Either Of Those Two New Jobs 

And Could Not Testify Competently As To Her Ability To Perform Them

Plaintiff's testimony about her perceived ability to return to work without the use of her 

right arm or hand suffers from another fatal infirmity: Plaintiff was not competent to testify 

about any of the work done in the Composing Department at GateHouse after she went on 

FMLA leave in January 2011. Plaintiff's Graphic Training and Technical Support job was 

eliminated along with all the artistic graphic design work (eventually on a national basis). The 

Senior Production Coordinator and Ad Traffic Coordinator positions were newly created. Work 

in those jobs did not begin until months after Plaintiff's February layoff. Indeed, Plaintiff 

admitted she never saw Adamo or Krisch perform their new jobs, or the performance of the 

seven other new jobs created after the reorganization. 

Q. You were out on leave starting January 18, 2011, correct? 

A. Yes. 

Q. And you didn't return from that leave before your layoff in 

February, correct? 

A. I didn't - - no. 

Q. Okay. So you never witnessed anybody performing any of the 

four new jobs in the composing department, did you? 

A. No. 

Q. Or the five new jobs in the ad center, did you? 

A. No. 

Q. Okay. And your old graphic designer job or trainer job was not 

one of the nine jobs after the reorganization, was it? 

A. No. 

(Tr.Vol.6; pp. 80:17-25; 81:1-4). 

 While Plaintiff testified she saw job descriptions for Adamo and Krisch's new jobs and 

for the seven other new jobs, Plaintiff admitted she never performed the full range of the 

responsibilities of the two new positions, nor even ever witnessed the jobs being performed. 

Plaintiff's testified about her unfamiliarity with the new jobs: 

9 
Q. And you don't know how many of the nine jobs on April 18, 

2011 required mouse work and typing, do you? 

A. Yes. I could figure that out. 

Q. You never saw them perform those jobs. How do you know? 

A. Well, they gave us a summary of those jobs, the descriptions. 

Q. Did - - all of them require mouse work and typing? 

A. Some of them, yes. 

Q. All of them did? 

A. Maybe, yes. 

(Tr.Vol.6; p. 81:5-14). Plaintiff's lack of competent knowledge about the requirements to 

perform the new jobs further creates an absence of credible record evidence contraverting 

Stacklin's testimony. Regardless of Plaintiff's self-serving beliefs, the competent record evidence 

establishes Plaintiff could not physically perform her job or the Krisch and Adamo jobs at a 

sufficient production level as of or after April 2011. It is not reasonable for the jury to have 

ruled otherwise. 

5. The Introduction Of GateHouse's ADA Reasonable Accommodation And 

Light Duty Policies Prejudicially Confused The Issues Of Whether Plaintiff 

Was Able To Work At The Expiration Of Her FMLA Leave And Whether 

GateHouse Would Have Thus Discharged Her

 Plaintiff prejudicially injected the Americans with Disabilities Act into this case by 

offering accommodation evidence when no such duty exists under the FMLA. Plaintiff also 

wrongly injected the issue of whether GateHouse would have offered her light duty at the end of 

her FMLA leave under its Workers' Compensation Disability Leave Policy. 

 Any mention of the ADA should have stopped immediately after Plaintiff testified her 

case is not an ADA case and admitted there is no duty to accommodate under the FMLA. 

(Tr.Vol.6; p. 48:13-20).2

 While an employer who discharges an employee unable to return to 

 

2

 Prior to commencing testimony on March 30, 2015, the Court entertained the parties' 

positions with regard to the propriety of permitting evidence of reasonable accommodations and 

light-duty that may or may not have been available to Plaintiff after April 2011. GateHouse 

refers the Court to its objections and the Court's decision. (Tr.Vol.6; pp. 2-21). 

10 
work at the expiration of the 12-week FMLA leave may have a duty to accommodate that 

employee, and risks ADA exposure by not considering such an accommodation, that employee's 

recourse would be a charge of discrimination at the EEOC. As Breneisen v. Motorola, Inc., 656 

F.3d 701, 705 (7th Cir. 2011) instructs, such a scenario, however, no longer falls under the 

FMLA. "When serious medical issues render an employee unable to work for longer than the 

twelve-week period contemplated under the statute, the FMLA no longer applies." Here, 

Plaintiff is not an ADA litigant. 

 Likewise, Plaintiff's testimony about GateHouse's Workers' Compensation Disability 

Leave Policy (Joint Ex. 11) is far more prejudicial than probative because, like much of her other 

damage phase testimony, she was not competent to testify about light-duty jobs at Gatehouse 

after she was laid off. Plaintiff admitted her lack of competence on that subject. 

 Q. Now, do you know if there is light-duty work in the 

department? You don't know if there was light duty work in the 

department you could perform with one arm, do you? 

 A. No. 

(Tr.Vol.6; p. 82:1-7). The ADA and light-duty evidence obfuscated the determination the jury 

was charged to make, and provided much more prejudicial than probative testimony relevant to 

their findings. The issue of whether Plaintiff was physically incapable of working and therefore 

would have been terminated when her FMLA expired had nothing to do with ADA 

accommodation or short-term light duty. 

6. GateHouse's Light-Duty Policy Does Not Obligate It To Provide Light-Duty 

And, In Any Event, There Was No Light-Duty Work For Plaintiff In 2011

Caroll Stacklin competently testified GateHouse's Workers' Compensation Disability 

Leave Policy does not obligate GateHouse to provide light-duty. (Tr.Vol.6; p. 124:1-5). Indeed, 

page 39 of the Policy sets out only that GateHouse will attempt to provide light-duty depending 

11 
on the circumstances. (Joint Ex. 11). In addition, Laura Williams testified GateHouse would 

evaluate light-duty options on an individualized basis, but creating an entirely new job was not 

contemplated by the Policy. (Tr.Vol.6; p. 135:21-25). Williams also explained the purpose of 

light-duty is to serve as a bridge to returning to full duty; however, the duration of any light-duty 

work is relatively short. (Tr.Vol.6; p. 136:4-11). The longest term GateHouse ever permitted an 

employee to work light-duty was six weeks. (Tr.Vol.6; p. 136:12-14). Without regard to 

Plaintiff's introduction of the policies and Plaintiff's belief she could have performed a job with 

lower production expectations using only one hand/arm, no persuasive record testimony exists to 

counter GateHouse's testimony they would never have permitted an employee to work reduced 

expectation, light-duty for nine months. (Tr.Vol.6; p. 136:15-19). Moreover, Stacklin testified 

the pre-press department jobs in 2011 were already considered light-duty work. (Tr.Vol.6; p. 

124:7-13). That testimony is consistent with GateHouse's treatment of Plaintiff after her first 

two surgeries in 2009 when GateHouse did not believe Plaintiff could satisfactorily perform her 

job with a one-hand work restriction. (Tr.Vol.6; p. 124:14-24). On cross-examination, Stacklin 

explained the policy language regarding temporary reassignment to lighter physical demands did 

not apply to Plaintiff because working to a reduced production expectation, or a little bit slower 

as contemplated by the policy, does not equate to having 50% of your work capacity eliminated 

on your best day. (Tr.Vol.6; p. 129:15-20). In all respects, Stacklin unequivocally testified 

Plaintiff would never have qualified for light-duty work at GateHouse with her indefinite, 

eventual seven-month one-arm restriction. (Tr.Vol.6; pp. 124:25; 125:1-3). 

 Plaintiff's entire testimony regarding her ability to work with only her weak hand is built 

on guesswork and opinion. That belief cannot be permitted to negate Stacklin and Williams' 

competent, comprehensive testimony on the backpay issue. And, regardless of the weight 

12 
accorded to Stacklin or Williams' testimony, or even their credibility, Plaintiff is not entitled to 

recover backpay because she simply did not provide any evidence of her ability to perform the 

work with only one hand. "Although a jury decides questions of credibility, a jury will not be 

allowed to rest a decision for plaintiff entirely on its disbelief of the denials made by defendant's 

witnesses." Miller v. J.M. Jones Co., 225 Ill.App.3d 799, 587 N.E.2d 654, 660 (1992). 

 Whether the jury failed to apply the facts to the relevant law because it disliked 

GateHouse's witnesses, attorneys, or their case; they were confused by the inclusion of the red 

herring ADA accommodation or light duty testimony; they simply heard enough after six days 

and a surprising second phase of grueling testimony; or the instructions should have been more 

clearly related to "Plaintiff's work" or the work associated with the two jobs at issue rather than 

simply "work," the record evidence did not support damages for back pay. Reasonable persons 

following the Jury Instruction could not reasonably have reached the verdict the jury issued on 

backpay. This is not a credibility issue; it is the only reasonable verdict on this issue based on 

the record testimony. The Court should correct this error by the jury by granting GateHouse's 

Motion for Judgment as a Matter of Law on this issue, or alternatively, ordering a new trial so 

this important issue can be properly adjudicated.3

 

B. The Jury's $60,000 Emotional Distress Damage Award Is Not Supported By 

Plaintiff's General Emotional Distress Testimony 

Because Plaintiff was awarded emotional distress damages solely on her state-law 

retaliatory discharge claim, Illinois law governs review of that award. "[I]n the context of a 

damages award, [the court] will not upset a jury's verdict unless: (1) the jury ignored a proven 

 

3

 The possibility that it may be too much to ask this or any jury to sit through six days of 

testimony, and overcome being surprised by a second phase of trial testimony, is not lost on 

GateHouse. If the instant Motion is granted, GateHouse's plan would be to attempt to resolve the 

outstanding issues through mediation rather than subjecting the Court, a new jury, the witnesses, 

and counsel to again endure a six day, two phase trial. 

13 
element of the damages; (2) the verdict resulted from passion or prejudice; or (3) the award bore 

no reasonable relationship to the loss." Rodriguez v. Northeast Illinois Regional Commuter R.R. 

Corp., 2012 IL App (1st) 102953, ¶ 55, 964 N.E.2d 731. The Supreme Court of Illinois holds an 

award of damages "will be deemed excessive if it falls outside the range of fair and reasonable 

compensation or results from passion or prejudice, or if it is so large that it shocks the 

conscience." Best v. Taylor Mach. Works, et al., 179 Ill.2d 367,689 N.E.2d 1057, 1079 (1997). 

1. Plaintiff's Testimony About Her Feelings Of Betrayal And Devastation On Her 

Garden Variety Emotional Distress Claim Does Not Support A $60,000 Award 

Plaintiff's testimony regarding her emotional distress consisted of being "disappointed 

and devastated" when she was demoted and incurred a pay cut in 2010 (Tr.Vol.6; p. 37:3-6); she 

was "disappointed" (Tr.Vol.6; p. 37:12-15); she was "devastated" and "stunned" when she was 

informed she did not get either of the jobs she applied for in 2011 (Tr.Vol.6; p. 39:16-21); 

Plaintiff felt "anxious and betrayed" when she saw the job postings by GateHouse two days after 

her discharge (Tr.Vol.6; p.40:17-21); over the next several months after her discharge in 

February 2011, Plaintiff felt "sad and depressed"; in the two years Plaintiff did not have a job 

after her discharge, she could not finish one book or read the newspaper every day (Tr.Vol.6; p. 

41); she could not sit and watch her favorite TV shows, had spasms in her stomach, headaches, 

could not sleep and grinded her teeth, and she was "less trustful" of people" (Tr.Vol.6; p. 42); 

she maintains that she "can't stop thinking about them (GateHouse)" (Tr.Vol.6; p. 44); and an 

after effect of her discharge was that "I didn't go out as much socially." (Tr.Vol.6; p. 43:16-18). 

 On cross-examination, Plaintiff testified she never saw a medical or mental health 

professional for emotional distress. (Tr.Vol.6; p. 91:1-4). In addition, despite testifying she was 

"depressed," Plaintiff never was clinically diagnosed with depression or any other identifiable 

condition. (Tr.Vol.6; p. 91:15-16). Further, Plaintiff's stress level diminished in 2012 after she 

14 
obtained a new job. (Tr.Vol.6; p. 93:16-24). And, curiously, although Plaintiff testified on 

direct-examination she did not go out as much socially, she admitted on cross-examination she 

was emotionally able to socialize with Carol Gilbert, her former supervisor and the alleged 

primary discriminator, after she was discharged and while she was experiencing feelings of 

betrayal due to her treatment by GateHouse. (Tr.Vol.6; p. 93:8-16). 

2. In Light Of Plaintiff's Testimony, The Jury's Verdict Is Excessive And 

Either Warrants A New Trial Or Reduction Through Remittitur 

 The $60,000 awarded to Plaintiff for emotional distress damages is excessive given her 

general garden variety emotional distress testimony, and seems to have resulted from passion or 

prejudice rather than from evidence. "'[T]he deference given to the deliberative process is 

overcome if, after examining the evidence presented at trial, the trial court determines the jury 

verdict is excessive." Best, 689 N.E.2d 1065. 

 To be sure, losing a job, even in a layoff affecting hundreds of other people, is not an 

easy experience. Plaintiff has not, however, offered sufficient testimony of the garden variety 

effects of her experience to warrant such an award. Not watching her favorite TV shows, not 

reading books, and not going out socially, other than apparently with Carol Gilbert, the woman 

Plaintiff portrayed as a villain at trial, do not warrant such an award. As the Court explained, the 

jury was charged with fairly compensating Plaintiff for the injury she suffered, and any award 

must be based on evidence and not speculation. Without regard to the jury's feelings towards 

Plaintiff, Plaintiff did not set forth evidence of injuries to support an award of $60,000. 

 By any measure, the $60,000 emotional distress damage award is not warranted under 

this factual record. Accordingly, the Court is requested to strike the emotional distress award, set 

a new trial, or reduce the sum through remittitur to an amount that truly reflects the alleged 

garden variety harm to which Plaintiff testified. 

15 
C. Plaintiff Is Not Entitled To Punitive Damages Because Illinois Law Requires 

A Significantly Higher Level Of Culpability And She Did Not Demonstrate 

Facts Justifying The Imposition Of Punitive Damages 

 1. There Is No Evidence Of Fraud, Malice, Or Oppression 

 Neither the record evidence nor the applicable legal standards set forth in Illinois cases, 

entitled Plaintiff to punitive damages. In Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 

353, (1978), the Illinois Supreme Court described the requirements that must be satisfied before 

punitive damages may be awarded in a workers' compensation retaliatory discharge case. 

Plaintiff falls far short of meeting those requirements here. 

Kelsay recognized the validity of punitive damages where the underlying tort was 

committed "with fraud, actual malice, deliberate violence or oppression, or when the defendant 

acts willfully, or with such gross negligence as to a wanton disregard of the rights of others." Id. 

at 359. The Court cautioned, however, that punitive damages are not favored in Illinois and that 

Courts must take caution to see that they are not improperly or unwisely awarded. Id. at 360. 

 A jury has the discretion to award punitive damages but such damages are not required 

upon a finding of liability. Knecht v. Radiac Abrasives, Inc., 219 Ill.App3d 979, 579 N.E.2d 

1248, 1250 (1991). An award of punitive damages should be upheld only if the defendant's 

misconduct is above and beyond the conduct needed for the basis of the action. Kritzen v. 

Flender Corp., 226 Ill.App.3d 541, 589 N.E.2d 909919 (1992). Illinois law, therefore, draws a 

clear distinction between the showing needed for liability and the higher level of culpability 

needed to sustain an award of punitive damages in retaliatory discharge cases. "[W]hile the 

measurement of punitive damages is a jury question, the preliminary question of whether the 

facts of a particular case justify the imposition of punitive damages is properly [a question] of 

law." Kelsay, 384 N.E.2d at 359. Punitive damages are not presumed in a retaliatory discharge 

16 
action; rather, the circumstances of each case must warrant punitive damages. Dixon 

Distributing Co. v. Hanover Insurance Co., 161 Ill.2d 433, 443-44, 641 N.E.2d 395, 400 (1994). 

 Plaintiff produced no evidence at trial demonstrating the kind of conduct required by 

Kelsay for punitive damages. The evidence in this case shows that Plaintiff, along with many 

others in her department at Downers Grove, and nationally, was selected for a layoff after her 

area of expertise was outsourced. GateHouse's decision makers testified about the selection 

process, including a comparison of Plaintiff's skills with Lynn Adamo and Sue Krisch's for the 

two post-reorganization positions. By finding that GateHouse retaliated against Plaintiff for 

exercising her rights under the Workers' Compensation Act, the jury did not necessarily 

determine that Plaintiff was more qualified than Adamo or Krisch for jobs similar to those they 

had been performing for years. Although Plaintiff and the jury believe that GateHouse retaliated 

against Plaintiff by discharging her in February 2011, nowhere in the record is any evidence of 

fraud, malice, or oppression in the way GateHouse treated Plaintiff. 

 While Plaintiff and her counsel obviously swayed the jury into believing GateHouse's 

business decision to award the new positions to Krisch and Adamo was some sort of nefarious, 

malicious act by putting an extremely negative spin on facts such as innocent advertising, typical 

discussions with counsel surrounding a mass layoff, and remarkably claiming the Shaw 

witnesses' surprising emotional testimony was some sort of malicious effort by GateHouse, the 

Court will not be as emotionally swayed by these appeals. Accordingly, the punitive damage 

award should be reversed. The record evidence simply does not support the excessive punitive 

damages awarded. Whether the jury was swayed by passion or prejudice, or simply failed to 

apply the record evidence to the punitive damages instruction provided them, this is simply not a 

17 
reprehensible punitive damages case, especially not to the extent of the jury's award. The 

punitive damage award should be reversed, or significantly reduced. 

2. If Some Award Of Punitive Damages Is Upheld, It Should Be 

Commensurately Reduced If The Court Finds Plaintiff Is Not Owed Backpay 

If the Court is disinclined to bar punitive damages, the award should be reduced if 

Plaintiff is not entitled to backpay. During her closing argument, Plaintiff's attorney gave the 

jury specific guidance as to how to award punitive damages. She stated "[w]e think that punitive 

damages should be at least as high as Darlene's financial losses and emotional harms, if not even 

higher. Again, it's up to you to decide what amount will send a message." (Tr.Vol.6; p.170:17-

20). Added together, the backpay and emotional distress awards roughly equal $125,000. The 

equivalent $125,000 punitive damage award demonstrates the jury followed Plaintiff's attorney's 

request. If the backpay award is stricken, GateHouse requests the Court to hold Plaintiff to her 

counsel's guidance and significantly diminish the award. Such diminishment would also be 

consistent with the part of the punitive damage jury instruction and relevant case law establishing 

"[t]he amount of punitive damages must be reasonable and in proportion to the actual and 

potential harm suffered by the plaintiff. (Tr.Vol.6; p. 202:2-4). 

D. The Jury's Opposite Verdicts With Regard To The FMLA Interference And 

Retaliation Claims Related To The Demotion In 2010 Are A Peculiar Twist 

Because The Elements Of Those Claims Are Largely Coextensive 

The jury's finding that Plaintiff's demotion in February 2010 did not interfere with her 

FMLA rights, but was an act of retaliation under the FMLA is inconsistent. As the Court stated, 

both the interference and retaliation claims related to Plaintiff's demotion in 2010 are "largely 

coextensive." There is no discernible reason for the divergent verdicts. It stands to reason that 

the jury's non-finding of liability on the interference claim warrants judgment as a matter of law 

to GateHouse on the retaliation claim due to the similarity of those claims. 

18 
Moreover, as GateHouse explained in their initial Motion for Judgment as a Matter of 

Law, the only evidence Plaintiff adduced advancing discrimination on her demotion were Carol 

Gilbert's alleged references to the comments allegedly made by Caroll Stacklin and Don Stamper 

about filing her workers' compensation claims. Those comments, even if actually made, do not 

demonstrate violations of the FMLA because they, by Plaintiff's admission at trial and 

deposition, were solely related to her workers' compensation claim, not her FMLA leaves. 

(Sheils Dep.; p. 130). Indeed, both at trial and at deposition, Plaintiff admitted the comments, 

the alleged "they" comments and any other comments allegedly made by Gilbert, were not in any 

way related to her FMLA claims, they were all about GateHouse's alleged unhappiness with her 

filing a worker's compensation claim and hiring a worker's compensation lawyer. The jury 

obviously disregarded Plaintiff's admissions about this evidence, the only evidence other than 

mere timing offered in support of the retaliatory demotion claim, to issue its FMLA demotion 

finding against GateHouse. This failure to follow the instructions and to apply the law to the 

evidence is another example of juror passion or error which unfairly affected their verdicts. 

E. The Lack Of The Jury's Reliance On The Evidence Is Further Demonstrated 

By The Lack Of Arithmetic Basis For Their Backpay Award

The parties agreed the jury should determine damages based on Plaintiff's Damages Chart 

used by both parties during closing arguments. While the parties disagreed whether the jury 

should use Sue Krisch's Ad Traffic Coordinator Position and the associated $75,159.58 of 

damages associated with that position, or Lynn Adamo's Senior Production Coordinator Position 

in Crystal Lake and the $101,669.70 of damages associated with that position as the relevant 

damages comparison (Tr.Vol.6; pp.153-157), or whether zero damages were appropriate because 

of Plaintiff's April 2011 inability to return to work (Tr.Vol.6; pp.191), the parties agreed on the 

component numbers under any of the three scenarios. Yet, the jury utilized none of these figures 

19 
to create their verdict. Instead, the jury inexplicably came up with a total of $62,036.91 as the 

backpay award, an award that was less than the backpay component alone of the lower paying 

job without any inclusion of the $17,682.38 of lost benefits. Indeed, there is no rational 

mathematical evidentiary basis for the jury to arrive at their award. 

Like the jury's award on the demotion claim and their award of any backpay damages 

given Plaintiff's inability to work as of April 2011, the jury's calculations on the backpay award 

were not based on any evidence. Their refusal or failure to render verdicts based on evidence, or 

to follow the Court's instructions as required by the law, is yet another reason the Court should 

correct their mistakes by entering judgment as a matter of law, or in the alternative ordering a 

new trial or reduction of damages through remittitur. 

IV. CONCLUSION 

For all the foregoing reasons, GateHouse respectfully requests the Court issue judgment 

as a matter of law on the backpay issue and other damage issues included herein as the jury's 

verdicts were not reasonably based on the record evidence. Even if the ADA and light duty 

policies were properly admitted for a limited purpose, they are background information that 

establish only GateHouse would consider accommodation or light duty requests on a case-bycase basis. They do not in any way undercut the reliable, first hand GateHouse testimony that 

Plaintiff would have been let go in April 2011 when she could not satisfactorily perform her job, 

and no accommodation or light duty would have been available for an indefinite, eventual seven 

month extended leave. Plaintiff's self-serving beliefs and assertions about what the policies 

arguably require are not sufficient evidence for a jury to reasonably issue its backpay findings. If 

judgment as a matter of law is not granted, GateHouse respectfully requests a new trial is 

warranted on any remaining claims as the jury's verdicts were against the manifest weight of the 

20 
21 

evidence, or to reverse or significantly limit the excessive emotional distress and punitive 

damage awards. 

Dated: May 14, 2015 Respectfully submitted, 

 s/Michael A. Paull 

MICHAEL A. PAULL (ARDC # 6194021) 

BRIAN S. SCHWARTZ (ARDC # 6273020) 

KLEIN DUB & HOLLEB, LTD. 

660 LaSalle Place, Suite 100 

Highland Park, Illinois 60035 

(847) 681-9100 

map@labor-law.com

brian.schwartz@labor-law.com

Attorneys for GateHouse
CERTIFICATE OF SERVICE 

The undersigned attorney certifies that a true and correct copy of the foregoing 

Defendants' Supplemental Motion for Judgment as a Matter of Law or, in the Alternative, for a 

New Trial or Reduction of Damages through Remittitur Was Served upon: 

Jill Weinstein 

Erika Pedersen 

PEDERSEN & WEINSTEIN LLP 

55 E. Jackson Boulevard, Suite 510 

Chicago, IL 60604 

via the CM/ECF Electronic Filing System, on this 14th day of May, 2015. 

 

 s/Michael A. Paull