unable to function in his day-to-day life, including his job.”
See Plaintiff's Exhibit 41, p. 36. In his closing argument,
counsel for Mr. Hare asked the jury to award him compensatory
damages as follows: $257,787.88 to cover pre-trial wage losses;
$5,371 to cover medical expenses; $216 to cover prescription drug
expenses; $645,150.80 to cover future wage losses; and $1 million
to cover Mr. Hare’s emotional pain and suffering. The jury
awarded $1,767,497.56, less than what was requested. Given the
evidence described above - which was unrebutted - the Court will
defer to the decision of the jury, and decline to remit the
damage award; the award was rationally connected to the evidence,
and, given the evidence, was not “monstrously excessive.”

Cc. Chief Zitek’s Motion to Strike the Punitive Damages Award

Chief Z2itek, unlike Mayor Tabor, did not renew his motion
for judgment as a matter of law. He has, however, asked the
Court to strike (or reduce) the punitive damages award entered
against him. As noted above, the jury awarded Mr. Hare
$1,767,497.56 in compensatory damages, which is 93% of what he
requested. Presumably, Mr. Hare has been made whole by the award
of compensatory damages. Generally, punitive damages should be
limited to an amount necessary to deter and punish; an award will
be reduced only when it clearly exceeds an amount necessary to
serve these goals. E.g., BMW of North America, Inc. v. Gore, 517

U.S. 559, 575-581 (1996); Merriweather v. Family Dollar Stores of

14


grand jury. See Trial Transcript, Vol. 3B, p. 18. Mayor Tabor
testified that he may have called witnesses to tell them they
could have an attorney, but he did not recall; he said he may
have simply posted the memo advising of that policy. Id., p. 19.
In either case, he admitted that he did not call Mr. Hare to
offer him an attorney. JId., p. 20. He testified that Mr. Hare
never told him he had been subpoenaed, and that he never asked
him for legal representation. Id., p. 51.

The jury also heard from two other officers who were
subpoenaed to appear before the grand jury in connection with
Karyn Stratton’s investigation at or about the same time Mr. Hare
was subpoenaed. These officers, Robert Fox and Mark Kozelka,
testified that, after they were subpoenaed, the mayor called them
to tell them that the Village would provide an attorney if they
wanted one. See Trial Transcript, Vol. 3B, p. 83-84 (Officer
Fox); p. 97 (Officer Kozelka).

Even when viewed in the light most favorable to Mr. Hare,
however, this evidence would establish only that some subpoenaed
officers were called, while Mr. Hare was not. The mayor's
failure to call Mr. Hare can support a retaliation claim only if
the evidence would allow the jury to attach some retaliatory
motive to that failure. See, e.g., Cygan v. Wisconsin Department
of Corrections, 388 F.3d 1092, 1098 (7th Cir. 2004) (to prevail on

a First Amendment retaliation claim, plaintiff must show that he


moment - his trial - Mr. Hare was unable to articulate any
factual basis for imposing liability on Mayor Tabor. The best he
could offer the jury was that the mayor “was right alongside with
[Zitek]. He agreed with him.” Id., p. 133. But, in terms of
the actions Chief Zitek took - changing Mr. Hare’s shifts and
taking away his duties, trying to trump up charges against him in
connection with the Kim Koudelka incident, etc. - the evidence
was Clear that the mayor was not involved in any of those
actions.

In the final analysis, the Court finds that, at best, the
jury’s verdict against Mayor Tabor was supported by no more than
“a mere scintilla of evidence”; the verdict as to the mayor must,
therefore, be overturned, and the Court will grant the mayor’s
renewed motion for judgment as a matter of law.

In addition to his renewed Rule 50 motion, Mayor Tabor filed
a motion, under Federal Rule of Civil Procedure 59, to strike the
punitive damages award against him. In light of the Court’s
ruling on Mayor Tabor’s motion for judgment as a matter of law,
the Court will grant the motion to strike the punitive damages
award. Punitive damages are recoverable under § 1983 even in the
absence of actual damages if the defendant's conduct was
“motivated by evil intent or involv[ed] reckless or callous
indifference to the federally-protected rights of others.”

Siebert v. Severino, 256 F.3d 648, 655 (7th Cir. 2001) (internal

10


Monday morning and was out of the office and out of town for the
3 days immediately preceding his testimony. He also admitted
that he never told the mayor or the chief that he had been
subpoenaed and he never asked for an attorney. Trial Transcript,
Vol. 4B, p. 162. In short, there is simply no evidence to
support his claim that the mayor failed to offer him legal
representation in retaliation for anything, let alone in
retaliation for Mr. Hare's exercise of his First Amendment
rights.

Indeed, there is no evidence that the mayor even knew, at
least at that point in time, that Mr. Hare was a whistle blower.
Mr. Hare testified that he discussed his concerns with Trustee
Dolezal and that he assumed Mr. Dolezal had passed on his
concerns to the mayor. But he also admitted that he went to Mr.
Dolezal in the first place because he thought Mr. Dolezal would
keep quiet about his involvement in the matter. Trial
Transcript, Vol. 4B, pp. 149-150. And Trustee Dolezal testified
that, although he passed along the concerns shared by Mr. Hare,
he did not reveal Mr. Hare’s name to the mayor. Trial
Transcript, Vol. 3B, p. 64. With regard to the pension hearing,
the evidence established that Donald Kreger acted as the Village
Attorney and that he appeared at Mr. Hare’s pension board
hearing, ostensibly on behalf of the Village, to contest Mr.

Hare’s claim for a line-of-duty disability pension. The evidence


suffered some adverse employment action and that his speech was a
substantial motivating factor for that action). And, quite
simply, there was no evidence to support such a motive here.

With respect to both Officers Fox and Kozelka, the evidence
showed that the mayor knew that these two officers either had
been subpoenaed or were likely to be subpoenaed. Officer Kozelka
testified that his subpoena arrived at the police station, and
the Chief and the mayor actually knew about it before he did; he
testified that the mayor told him there was a subpoena there
waiting for him and that the Village would provide an attorney to
accompany him if he so desired. Id., p. 97. And Officer Fox
testified that the mayor called him before he even received a
subpoena; he testified that the mayor told him that “something
was brewing,” that he “may or may not be receiving a Grand Jury
subpoena,” but that, if he did, the Village “had an attorney for
me if I wanted one.” Trial Transcript, Vol. 3B, p. 83.

In Mr. Hare’s case, there is simply no evidence that Mayor
Tabor knew that he was likely to receive, or that he had
received, a subpoena. No one testified that Mr. Hare’s subpoena
came to the station; no one testified that Mayor Tabor knew, on
or before October 30, 2000, that Richey Hare was going to appear
before the grand jury and might be in need of an attorney. Mr.
Hare testified that he knew exactly when he was going to be

served with the grand jury subpoena, that he testified on a


the chief both knew, early on, who the whistle-blowing cops were,
evidence that the mayor and the Chief both contacted police
officers who were called to testify before the grand jury, yet
neither called Mr. Hare ~ would be enough to give a reasonable
jury cause to find them liable. But, at trial, this evidence was
not borne out in the way that Mr. Hare had represented, at the
summary judgment stage, that it would be. For example, at trial
Karyn Stratton testified that, when she ran into the Chief and
mayor on October 18th, she never mentioned any whistle-blowers
name and they never gave any indication that they knew what the
investigation was really about; on the contrary, according to
both the Chief and Ms. Stratton, the Chief indicated that he
thought the investigation had something to do with the Hawthorne
Racetrack, not with allegations that he was stealing money from
the till. And nothing Ms. Stratton said at trial suggested that
the mayor ever even knew that Mr. Hare was involved in her
investigation.

When pressed to explain why, exactly, he thought Mayor Tabor
should be liable, Mr. Hare testified as follows:

Q: What did the Mayor do? What did the Mayor do,
physically do, or tell anyone that hurt you?

A: You know, I can’t - nothing comes to mind right now,
but there were a number of things.

Trial Transcript, Vol. 4B, p. 133. Tellingly, after years of

discovery and personal investment in this lawsuit, at his shining


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

Richey Hare joined the Stickney Police Department in 1986.
In 2002, he sued the department, as well as the Village of
Stickney, Stickney’s Chief of Police (John Zitek), and Stickney’s
Mayor (Donald Tabor), alleging that these defendants retaliated
against him because he uncovered and exposed corruption within
the Police Department and within the Village. Specifically, he
claims that the defendants harassed and intimidated him, going so
far as to attempt to trump up a sexual assault case against him,
all in violation of 42 U.S.C. §1983, and in furtherance of a
conspiracy to violate 42 U.S.C. §1983.

The case was tried to a jury beginning August 7, 2006. Mr.

Hare testified, as did Chief Zitek and Mayor Tabor. In addition,


was retaliatory. And the evidence was clear that, with respect
to these decisions, Chief Zitek was the “final” decision maker in
the “special sense that there is no higher authority.” Rasche v.
Village of Beecher, 336 F.3d 588, 600 (7th Cir. 2003). On the
stand, the Chief admitted that the decision to remove Mr. Hare
from his commander duties and to move him back down to the
uniformed patrol division was his decision and his alone; he
testified that he did not need approval from the mayor or the
Village Board or the Trustees to take this action. Trial
Transcript, Vol. 3A, p. 33. He testified that the same was true
with respect to the decision to take away Mr. Hare’s department-
issued car and the decision to change Mr. Hare’s shift such that
he no longer had weekends off, id., p. 65 - both actions that Mr.
Hare claimed were retaliatory. Mayor Tabor confirmed that
decisions concerning the reorganization of officers’ shifts and
assignments would have been Chief Zitek’s and Chief Zitek’s
alone. See Trial Transcript, Vol. 3B, p. 31. From this
evidence, the jury could reasonably have concluded that, at least
with regard to some of the alleged retaliatory acts, Chief Zitek
was the final decision-maker on those issues, and the Village
should therefore be held accountable.

In short, the jury’s determination that the Village should
be held liable for the actions of Chief Zitek was supported by

ample evidence. The Village’s motion for judgment as a matter of

12


citations omitted). But, at least with respect to Mayor Tabor,
there was no evidence of evil intent or reckless or callous
indifference. Accordingly, the punitive damages award against
Mayor Tabor is stricken.

B. The Village’s Post-Trial Motions

Like Mayor Tabor, the Village of Stickney renewed its Rule
50 motion after the jury returned its verdict. The Village
argues that it cannot be liable under §1983 simply because the
Chief and the mayor are Village officials; rather, the Village
argues, it can only be on the hook if Mr. Hare proved that they
were final policymakers, and, according to the Village, he failed
to meet that burden. Having determined that the evidence did not
support a claim against Mayor Tabor, the Court will limit its
discussion in this regard to Chief Zitek.

With regard to the revocation of Mr. Hare’s FOID card, the
Court agrees that final decision-making authority for FOID cards
rested, not with Chief Zitek, but with the Illinois State Police.
Mr. Hare admitted as much at trial. See Trial Transcript, Vol.
4B, p. 132. Thus, if this were the only act of retaliation, the
Court would be inclined to grant the Village’s motion. But this
wasn’t the only act of retaliation.

Beyond the FOID card issue, Mr. Hare testified that, in his
view, the Chief’s decision to change his shift, to take away the

bulk of his responsibilities, his car, his overtime work, etc.

11


established that the Village never sought to deny Mr. Hare a
pension outright; rather, the evidence showed that the Village
sought to have Mr. Hare awarded a straight disability pension.
The difference between the two is that, with a line-of-duty
disability pension, the officer receives 65% of his pay (15% more
than he would receive if the disability were not in the line-of-
duty) and the benefits would be awarded on a tax-free basis,
which was not true of non-line-of-duty disability benefits. The
evidence also established that Mr. Kreger was the Village
attorney and that he generally acted at the behest of either the
Village Trustees or the mayor.

But the evidence also established that Mayor Tabor did not
authorize Mr. Kreger to appear at the pension hearing to
challenge Mr. Hare’s line-of-duty disability pension. Mayor
Tabor testified as much; he also testified that, to his
knowledge, the Village Board never authorized Mr. Kreger to
appear at the pension meeting. Quite simply, there was no
evidence to the contrary.

The Court denied the defendants’ summary judgment motion
regarding Mr. Hare’s claim against Mayor Tabor because it
determined that the evidence - notably, Ms. Stratton’s deposition
testimony that Mayor Tabor and Chief Zitek both pressed her for
information about her investigation when she ran into them at the

police station on October 18, 2000, evidence that the mayor and


(7th Cir. 2000)). “A legally sufficient amount of evidence need
not be overwhelming, but it must be more than a ‘mere
scintilla.’” Id. (quoting Massey, 226 F.3d at 924). In
assessing the basis for the verdict, the Court examines the
evidence presented to the jury in the light most favorable to the
party against whom the motion is directed. See, e.g., Bruso v.
United Airlines, Inc., 239 F.3d 848, 857 (7th Cir. 2001); Cygnar
v. City of Chicago, 865 F.2d 827, 834 (7th Cir. 1989) (citing Tice
v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985)).

In support of his motion, the mayor argues that there was
simply no evidence adduced at trial to support the verdict
against him; no witness ever testified that he retaliated against
Mr. Hare; no document established any retaliation on the part of
the mayor. He argues that the jury must have found him liable
simply because he is the mayor. Mr. Hare disagrees. He argues
that the evidence adduced at trial supported Mr. Hare’s claim
that Mayor Tabor retaliated against him by not offering him legal
representation for his grand jury appearance and by authorizing
the Village attorney to attempt to interfere in Mr. Hare’s
pension hearing.

With regard to the failure to provide legal representation
for the grand jury appearances, Mayor Tabor testified that he
wrote a memorandum dated November 1, 2000 advising that the

Village would retain counsel for employees called before the


Indiana, Inc., 103 F.3d 576, 581 (7th Cir. 1996). There is no
question that the amount awarded here is within the proportional
limits suggested by the jurisprudence - BMW suggests that a 4 to
1 ratio would pass muster, see 517 U.S. at 580-81, and the award
here was not even 1 to 1. Nevertheless, the Court is persuaded
that a substantial reduction is appropriate, given that the
compensatory damages award was relatively large. See Gavin v.
AT&T Corp., 464 F.3d 634, 641 (7th Cir. 2006) (suggesting that, in
assessing the award’s effectiveness in achieving the goals of
deterrence and punishment, the court should look at the total
award package, not just the punitive damages award).

In his motion, Chief Zitek argues that any punitive damages
award should be in the area of $50,000 or less, and he suggests
that, in fixing an amount, the Court should be guided by Niebur
v. Town of Cicero, 212 F.Supp. 2d 790 (N.D. Ill. 2002). In
Niebur, the plaintiffs were suspended and ultimately fired
because of their work in exposing corruption within the town of
Cicero; they sued under §1983, alleging various constitutional
causes of action, including violation of their First Amendment
rights and retaliatory discharge, and a jury awarded each
plaintiff in the neighborhood of $1 million in compensatory
damages (including emotional damages) and $75,000 in punitive
damages ($50,000 against one defendant, and $25,000 against the

other). Id. at 799-800, 821.

15


Conclusion

For the reasons explained above, Mayor Tabor’s Motion for
Judgment as a Matter of Law [#192] and his Motion to Strike the
Punitive Damages Award [#196] are granted; the Village of
Stickney’s Motion for Judgment as a Matter of Law [#191] and
Motion for a New Trial on Damages [#194] are denied; and Chief
Zitek’s Motion to Strike the Punitive Damages Award and, in the
Alternative for Remittitur of the Award [#197] is granted. The
judgment against Mayor Tabor is vacated, and the punitive damages
awarded against him are stricken; the punitive damages awarded
against Chief Zitek are reduced to $90,000. The amount of the

compensatory damages award, $1,767,497.56, remains unchanged.

Date: December 28, 2006
ENTER:

OnOen Ce Kegs
ARLANDER KEYS
United States vagistrate Judge

17


that the claim against the mayor should be decided by the jury.

In the end, on August 14, 2006, the jury returned a verdict
in Mr. Hare’s favor, awarding him $1,767,497.56 in compensatory
damages and $2 million in punitive damages - one million each
against the Chief and the mayor. The Court entered judgment
reflecting the verdict that same day.

On August 28, 2006, Mayor Tabor and the Village renewed
their motions for judgment as a matter of law. The defendants
also filed three additional post-trial motions: the mayor and the
Chief filed separate motions to strike the punitive damages
awards against them, and the Village filed a motion for a new
trial on damages or remittitur. On November 7, 2006, the Court
stayed execution of the judgment pending resolution of these
motions. The Court now considers each motion in turn.

A. Mayor Tabor’s Post-Trial Motions

As explained, at the close of the evidence, Mayor Tabor
moved for judgment as a matter of law, and, although the question
was close and the evidence flimsy, the Court denied the motion at
that time. Mayor Tabor has now renewed his motion, asking the
Court to grant him judgment as a matter of law under Rule 50(b),
which is appropriate only if the jury lacked a “legally
sufficient evidentiary basis for its verdict.” Filipovich v. K&R
Express Systems, Inc., 391 F.3d 859, 863(7th Cir. 2004) (citing

Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 924


the parties presented testimony from several of Mr. Hare’s former
colleagues at the Stickney Police Department; from Karyn
Stratton, the Assistant State’s Attorney who handled the
investigation into the whistle-blowers’ allegations; Trustee
Dolezal; Kimberly Koudelka, the woman who Chief Zitek allegedly
tried to persuade to trump up charges against Mr. Hare; Ms.
Koudelka’s mother; the detective who investigated the Koudelka
matter for Chief Zitek; and Susan Locander, a former freelance
reporter who covered the story surrounding the police officers’
concerns about possible corruption in the Stickney Police
Department. The jury also heard from Mr. Hare’s treating
psychiatrist.

At the close of the evidence, all three defendants moved for
judgment as a matter of law, though counsel for Chief Zitek
acknowledged that, when viewed in the light most favorable to Mr.
Hare, the evidence likely required that the motion be denied as
to his client. The Court agreed and denied the motion with
regard to Chief Zitek. The Court also found that the claim
against the Village should go to the jury, and so it denied the
Village’s motion as well. With regard to Mayor Tabor, the Court
noted that the question was “very close” and that the evidence
against Mayor Tabor was “rather flimsy.” But, given the evidence
that the mayor may have called some officers to offer them legal

representation but did not call Mr. Hare, the Court determined


law is denied.

The Village also filed a motion seeking a new trial on
damages; according to the Village, the jury’s compensatory
damages award was “monstrously excessive” and had “no rational
connection” to the evidence. See Defendant Village of Stickney’s
Post~Trial Motion for a New Trial on Damages or Remittitur, p. 1.
The Court disagrees on both counts.

“In determining whether an award is excessive, substantial
deference should be given to the decision of the jury and the
jury’s award should not be disturbed unless it is ‘monstrously
excessive’ or “so large as to shock the conscience of the court.”
Morales v. Cadena, 825 F.2d 1095, 1100 (7th Cir. 1987) (quoting
Marybeth G. v. City of Chicago, 723 F.2d 1263, 1275 (7th Cir.
1983).

At trial, the jury heard evidence that Chief Zitek
essentially stripped Mr. Hare of his duties, took away the only
job he had ever really wanted to do, sent him so far off the deep
end that he cannot work again as a police officer, and attempted
to ruin his reputation in the community he called home by
trumping up charges against him. Additionally, the jury heard
{via deposition) the testimony of Mr. Hare’s doctor, Dr. Tahir
Sheikh, who has treated Mr. Hare since May of 2001; Dr. Sheikh
testified that Mr. Hare has a major depressive disorder and post-

traumatic stress disorder and is “significantly impaired and

13


Frankly, the conduct in Niebur, though egregious, would seem
to be much less so than that at issue here - here, the jury heard
evidence that, in addition to stripping Mr. Hare of his
professional responsibilities, Chief Zitek attempted to destroy
his reputation and even attempted to have him prosecuted
criminally. This evidence would justify a higher award than
those imposed in Niebur.

In the end, the Court is persuaded that a punitive damages
award of $90,000--roughly 5% of the compensatory damages award-~
will serve to both punish Chief Zitek’s conduct and to deter any
future misconduct. Although the defendants introduced very
little evidence on the point, the Court understands that Chief
Zitek is not a particularly wealthy man; he has been a public
servant his entire career, making just $90,000 per year
currently, and he is nearing retirement, when he will have to
live on a fixed income. The payment of one year’s salary to Mr.
Hare should suffice. The object of punitive damages is not to
ruin the defendant, but merely to punish him. See, e.g., Brown &
Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1143 (7th
Cir. 1987) (citing Hazelwood v. Illinois Central Gulf Railroad,
114 Tll. App. 3d 703, 711 (1983)}. In the Court’s view, the
award, as reduced, serves to achieve this end. Contrary to Mr.
Hare’s contention, a $1 million award would destroy most

individuals, and it would most certainly destroy Chief Zitek.

16