Conclusion
The parties’ objections to proposed jury instructions are
resolved as explained in this opinion. Issues reserved in this
opinion will be addressed at the outset of the trial, which is
scheduled to begin August 7, 2006 at 10:00 a.m.

Dated: August 3, 2006
ENTER:

QQno— Konys

ARLANDER KEYS t
United States Magistrate Judge

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finds that the defendants’ proposed alternative language comes
closer to the mark than the plaintiff’s proposal, except that it
limits the retaliatory acts and does not go far enough in the
explanation. The Court will give the second to the last
paragraph of defendants’ proposed alternative number 9, with the
following modifications:

in the first sentence, “reassigned and initiated an
investigation against Plaintiff” is replaced with “done one or
more of the acts described above”; and

in the second sentence, “for their decision to reassign
Plaintiff, initiate an investigation against Plaintiff and deny
Plaintiff legal representation” is replaced with “to take the
actions they took.”

The Court will give the final paragraph of plaintiff’s
proposed instruction number 26 in lieu of the final paragraph of
defendants’ proposed instruction.

The instruction, as modified and with all typographical and
grammatical errors corrected, reads as follows:

In this case, Plaintiff claims that Defendants
violated his constitutional right to free speech when

the Defendants committed one or more of the following

retaliatory acts:

A. Failed to provide Plaintiff with legal

representation during a grand jury investigation;

B. Changed Plaintiff's job duties, responsibilities,

hours or work, and assignments;

c. Attempted to initiate false criminal charges

concerning Plaintiff’s contact with Kimberly
Koudelka;



existing condition; and proposed instruction number 38, which
addresses the plaintiff’s duty to mitigate.

Turning first to compensatory damages, the defendants object
to the instruction, arguing that Mr. Hare is not entitled to such
damages. It is not clear whether the defendants are arguing that
a plaintiff in a §1983 First Amendment retaliation claim is not
entitled to compensatory damages, or whether they are arguing
that Mr. Hare did not suffer any compensable harm. If the
former, they are wrong. See, e.g., Carey v. Piphus, 435 U.S.
247, 254-59 {1978}. And, if the latter, that is an argument
that should be made at the close of the evidence, not at this
stage of the game. The Court will adopt the plaintiff’s proposed
instruction, which mirrors substantially the Seventh Circuit’s
model jury instruction for compensatory damages in a
constitutional tort case brought under §1983. The Court will
give the instruction, with two modifications. First, an
apostrophe will be inserted in the first sentence after the word
“pefendants”; second, after paragraph 2, the Court will insert
the definition of present value from the model instruction to
assist the jury in understanding that term, as it is used in the
instruction.

The defendants also object to Mr. Hare’s proposed
instruction on punitive damages, arguing that such damages cannot

be awarded against the Village and that the defendants’ motion in

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the Defendants to take the actions they took, even if
Plaintiff had not complained to the State’s Attorney’s
Office or testified before the grand jury.

If you find that Plaintiff has proved by a
preponderance of the evidence each of the things
required of him, and that the Defendants have not
proved by a preponderance of the evidence that they
would have taken the same action in the absence of
Plaintiff’s statements to the State’s Attorney’s Office
and before the grand jury, then you must find for the
Plaintiff.

If, on the other hand, you find that Plaintiff did
net prove by a preponderance of the evidence each of
the things required of him, or if you find that he has,
but that the Defendants proved their claim by a
preponderance of the evidence, then you must find for
the Defendants.

3. Objections to Municipal Liability Instructions

Each side submitted proposed instructions on municipal
liability; Mr. Hare submitted proposed instruction number 28, and
the defendants submitted proposed instruction numbers 13 and 14.
Mr. Hare combined the substantive instruction with the
instruction on the definition of “official policy,” while the
defendants separated the two.

The defendants object to plaintiff's proposed instruction
number 28 on two grounds. First they argue that the Court, in
its summary judgment ruling, “specifically states that Defendant
Zitek was not a final policymaker for.all actions Plaintiff
complains of.” This is false; on the contrary, the Court found
that “there is sufficient evidence in the record to show that

Chief Zitek had final decision-making authority with respect to



B. Initiated proceedings to revoke Plaintiff's
Firearms Owner’s Identification Card; and

E. Interfered with the Stickney Police Pension
Board’s hearing and operations to prevent and
potentially reverse Plaintiff’s line-of-duty
disability pension benefits, because the Plaintiff
provided information to the Cook County State's
Attorney's Office and Cook County Grand Jury about
his suspicions of corruption within the Stickney
Police Department,

To succeed on his claim, Plaintiff must prove
several things by a preponderance of the evidence:

1. That Plaintiff provided information to the
Cook County State’s Attorney’s Office and/or the Cook
County Grand Jury about his suspicions of corruption
within the Stickney Police Department;

2. That Defendants, Zitek and Tabor, either
alone, or acting with others, intentionally adversely
affected Plaintiff’s employment when they committed one
or more of the retaliatory acts described above while
acting “under color of law.” By this I mean that a
person performs, or claims to perform, official duties
under state, county, municipal law, ordinance, or
regulation;

3. That Plaintiff’s providing of information to
the Cook County State’s Attorney’s Office and/or the
Cook County Grand Jury about his suspicions of
corruption within the Stickney Police Department was a4
reason, alone or with other reasons, that Defendants,
Zitek and Tabor, either relied on or were motivated by
when they committed the retaliatory acts;

4, That Plaintiff was harmed.

If Plaintiff has proved each of these things by a
preponderance of the evidence, then you must consider
Defendants Tabor’s and Zitek’s claims that they would
have done one or more of the acts described above
anyway. To succeed on this claim, the Defendants must
prove by a preponderance of the evidence that even
though Plaintiff complained to the State’s Attorney's
office and testified before the grand jury about
alleged corruption and wrongdoing in the Village of
Stickney, there were other reasons that would have led



sexual harassment against him and to trump up evidence to support
those allegations. But, as the Seventh Circuit has said, civil
conspiracy under §1983 is not in and of itself actionable; it is
simply a means of holding someone liable who didn’t actually
participate in the conduct. See, e.g., Walker v. Thompson, 288
F.3d 1005, 1008 (7th Cir. 2002). Based on the record as it stood
at the time of the summary judgment ruling, the evidence will
show that Chief Zitek personally committed the alleged
retaliation arising out of the Kim Koudelka incident; there is no
evidence tying Mayor Tabor to that incident. Accordingly, the
Court is not persuaded that a conspirator liability instruction
is warranted. If the evidence adduced at trial shows otherwise,
the plaintiff is free to raise the issue at that time, and the
Court may reconsider its ruling. For now, however, the
defendants’ objection to plaintiff’s proposed instruction number
29 is sustained and the instruction is refused.

5. Objections to Damages Instructions

The defendants challenge all but one of the plaintiff’s
proposed instructions regarding damages; they object to proposed
instruction number 34, which deals with compensatory damages;
proposed instruction number 35, which deals with punitive
damages; proposed instruction number 36, which deals with
collateral source damages; proposed instruction number 37, which

prohibits the jury from limiting damages because of a pre-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RICHEY A. HARE, SR.

Plaintiff, No. 02 C 3973

vs.

JOHN ZITEK, individually and in his
official capacity as Chief of
Police of the Stickney Police
Department, DONALD TABOR,
individually and in his official
capacity as President of the
Village of Stickney, and THE
VILLAGE OF STICKNEY, a municipal
corporation,

Magistrate Judge
Arlander Keys

Defendants.

MEMORANDUM OPINION AND ORDER
This case is set for trial on August 7, 2006. The purpose
of this Memorandum Opinion and Order is to resolve, to the extent
possible at this juncture, the parties’ objections to each
other’s proposed jury instructions.

i. General/Miscellaneous Objections

Initially, as to several general matters, the parties
submitted proposed instructions that are almost identical; as to
these, purely on style, the Court will give plaintiff’s proposed
number 3 over defendants’ proposed number 1; defendants’ number 2
over plaintiff's proposed numbers 12 and 14; and plaintiff's
proposed number 18 over defendants’ proposed number 4.

Next, plaintiff objects to defendants’ proposed instruction



defendants’ proposed number 8, and refuse plaintiff’s proposed
number 38.

With regard to the collateral source damages instruction,
given that the Court has already granted the plaintiff’s motion
in limine to preclude the defendants from arguing that any
damages award should be reduced to account for pension benefits,
this instruction would seem to be superfluous. Additionally,
when read in connection with the mitigation instruction, it could
confuse the jury. Accordingly, the Court will refuse plaintiff's
proposed instruction number 36.

Turning to plaintiff's proposed instruction number 37, in
ruling on the motions in limine, the Court refused Mr. Hare’s
request to bar evidence relating to a pre-existing psychological
condition from which he may have suffered. In doing so, the
Court emphasized that, in this lawsuit, Mr. Hare is entitled to
compensation for only those injuries that were sustained as a
result of the defendants’ retaliatory actions. With that
principle in mind, the Court will refuse plaintiff's proposed
instruction number 37 because it would serve to confuse the issue
and could suggest to the jury that it could award Mr. Hare
compensatory damages for harm he suffered as a result of
something other than the retaliatory acts alleged here.

6. Verdict Forms and Special Interrogatories

Along with his proposed instructions, Mr. Hare submitted a

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jJimine on indemnification - which Mr. Hare did not oppose and
which the Court granted - somehow affects the issue. The Court
agrees that punitive damages are not available against the
Village, see City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 271 (1981), but the same is not true of the individual
defendants, see Lifton v. Board of &ducation of the City of
Chicago, 290 F.Supp.2d 940, 946 (N.D. Ill. 2003). And the
verdict form reflects that punitive damages may be assessed, if
at all, only against the individual defendants. Plaintiff's
proposed instruction number 35, which mirrors the Seventh
Circuit’s model instruction for punitive damages in
constitutional tort cases brought under §1983, will be given.
The Court’s earlier ruling barring evidence of indemnification
stands.

With regard to mitigation, the defendants have similarly
offered a proposed instruction, which mirrors the Seventh
Circuit’s model instruction. The two proposed instructions are
substantially similar - the only real difference being that the
plaintiff’s proposed instruction appears to attempt to define
“comparable employment.” The Court is not persuaded that any
definition is necessary here and is concerned that the
plaintiff’s proposed instruction, which uses the terms
“comparable employment” and “substantially equivalent position,”

may confuse the jury. Accordingly, the Court will give

1t



at least some of the alleged retaliatory acts.” Hare v. Zitek,
414 F.Supp.2d 834, 862 (N.D. Ill. 2005). They also argue that
the proposed instruction misstates the law; it doesn’t. In fact,
the proposed instruction follows almost to the letter the Seventh
Circuit’s model instructions for municipal liability.

As between the two sides’ instructions, the Court finds that
the plaintiff’s is more complete and better reflects the claims.
The Court will give plaintiff’s proposed instruction number 28,
with two modifications. First, the last sentence of the first
paragraph of plaintiff’s proposed instruction is changed to read

a

“its official policy,” not “their official policy.” And, second,
the first sentence of the “custom or practice” paragraph, which
is slightly confusing as written, is modified to read: “A custom
or practice of retaliating against whistleblower employees that
is persistent and widespread, so that it is the Village of
Stickney’s standard operating procedure.” Defendants’ proposed

numbers 13 and 14 are refused.

4. Objections to Plaintiff's
Proposed Conspiracy Instruction

The defendants next challenge plaintiff’s proposed
instruction number 29, the substantive instruction on Mr. Hare's
conspiracy claim. As framed in the amended complaint, Mr. Hare’s
conspiracy claim alleges that, in retaliation for him blowing the
whistle on alleged corruption in the Police Department, Chief

Zitek and Mayor Tabor conspired to trump up false allegations of



positions at the summary judgment stage, the Court assumes that
the defendants intend to argue, and offer evidence to show that,
to the extent they committed the acts that are alleged to be
retaliatory, they did so, not because Mr. Hare exercised his
First Amendment rights, but because of other reasons. If that is
indeed the case, the Court would refuse the first version of
defendants’ proposed number 9 because it does not include
language covering this claim.

With regard to the elements of the claim, the Court finds
that the plaintiff's instruction better reflects the Court’s
rulings on the parties’ motions in limine, and the Court will,
therefore, give an instruction that incorporates the plaintiff’s
proposed instruction number 26 through paragraph 4, as modified
as follows:

in paragraph 1, “and/or the Cook County Grand Jury” is
inserted between Office and about;

in paragraph 2, “intentionally” is inserted before
“adversely effected”; “one or more of the” is inserted before
“retaliatory acts” and “described above” is inserted after
“retaliatory acts”; “and acted” is changed to “while acting”;

in paragraph 4, everything after “harmed” is stricken.

With regard to the language on the defendants’ claim that
they would have taken the allegedly retaliatory actions even if

Mr. Hare had not exercised his First Amendment rights, the Court



the Court hears the evidence with regard to Ms. Madsen, it cannot
gauge its probative value or its prejudicial impact.
Accordingly, the Court will reserve ruling on this objection.
Next, the defendants challenge plaintiff’s proposed
instruction number 31, a limiting instruction concerning evidence
about the defendants’ alleged violations of various sections of
the Illinois Pension Code. At this point, the Court agrees with
the defendants that this instruction would seem to be
inapplicable; to the extent the evidence suggests otherwise, the
Court will reconsider the issue. For now, the defendants’
objection is sustained and the proposed instruction is refused.
Finally, the plaintiff objects to defendants’ proposed
instruction number 15, entitled “Adverse Employment Action.” The
Court agrees that this instruction is inapplicable to Mr. Hare’s
constitutional tort claim. See Powers v. Summers, 226 F.3d 815,
621 (7th Cir. 2000) {an “adverse employment action” within the
meaning of the antidiscrimination statutes is not required in a
$1983 case}.

2. Objections to the Retaliation
Claim Elements Instructions

Each side has submitted proposed instructions on the
elements of Mr. Hare’s First Amendment Retaliation Claim. Mr.
Hare submitted proposed instruction number 26, and the defendants
submitted two versions, proposed instruction number 9 and

alternative proposed instruction number 9. Based on the parties’

3



number 5, which defines proximate cause; the Court agrees that
proximate cause plays no role in this case, and the instruction
is, therefore, refused.

Next, plaintiff challenges defendants’ proposed instruction
number 7, which tells the jury that it need not concern itself
with the wisdom of the defendants’ actions; the Court agrees that
the instruction is inappropriate given the claims alleged and,
therefore, refuses the instruction.

Next, the defendants object to plaintiff's proposed
instruction number 17 regarding demonstrative exhibits, arguing
that the charts referenced in that instruction were not disclosed
during discovery and should, therefore, not be used at trial.
Having not yet seen the charts, the Court has no way of knowing
what information they contain and, therefore, no way of gauging
whether that information was disclosed during discovery.
Accordingly, the Court will reserve ruling on this objection.

Defendants next object to plaintiff's proposed objection 24,
which states that the evidence of Dora Madsen’s conviction may be
used solely to help the jury gauge her credibility as a witness.
The defendants argue that the instruction should not be given and
that the probative value of Ms. Madsen’s conviction - which was
for the same wrongdoing Mr. Hare alleges Chief Zitek engaged in -
outweighs any potential prejudice that might result from the jury

considering the evidence for purposes beyond impeachment. Until



proposed verdict form, to which the defendants have raised no
objection. The Court will strike the conspiracy claim section,
but use the remainder of the form.

The defendants did not submit a proposed verdict form, but
they did submit four “special interrogatories,” all of which are
objected to by the plaintiff.

Special interrogatory Ll asks the jury to answer the question
of whether Mr. Hare complained to either Chief Zitek or Mayor
Tabor about being reassigned or investigated by the Sheriff’s
Department. The question is irrelevant to the claims and
defenses presented and the interrogatory is, therefore, refused.

Special interrogatory 2 asks whether Mr. Hare has proved
that either of the defendants retaliated against him because he
complained about alleged corruption. The question is redundant,
given the verdict form, and will, therefore, be refused.

Special interrogatory 3 asks whether the Village had a
custom of retaliating against whistleblowers; given the
instructions, this question too is subsumed in the verdict form.
Interrogatory number 3 is refused.

Special interrogatory 4 asks the jury whether Mr. Hare
resigned from his position for a legitimate reason. The Court
fails to see the relevance of this question to any claim or

defense presented, and the interrogatory is, therefore, refused.

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