2015 IL App (1st) 132228

No. 1-13-2228 

Opinion filed January 14, 2015 

Third Division

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

DIANE CIPOLLA,

Plaintiff-Appellant, 

v. 

THE VILLAGE OF OAK LAWN, 

Defendant-Appellee. 

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Appeal from the Circuit Court

of Cook County. 

No. 11 L 1673 

The Honorable 

Thomas R. Mulroy, 

Judge, presiding. 

______________________________________________________________________________ 

JUSTICE HYMAN delivered the judgment of the court, with opinion. 

Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion. 

 OPINION

¶ 1 The village manager of Oak Lawn told Diane Cipolla, a 12-year employee just shy of her 

sixtieth birthday, that her position was being terminated to help close a budget gap that exceeded 

$1 million. But Cipolla believes the real reason was her age and claims her supervisor was heard 

commenting on her age during a closed meeting of the village board of trustees only one day 

before the termination. Cipolla sued the village alleging age discrimination in violation of the 

Illinois Human Rights Act (775 ILCS 5/1-102(A) (West 2012)). After a four-day trial, the judge 
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instructed the jurors and gave them two special interrogatories asking: (1) whether the nondiscriminatory reason the village gave for terminating Cipolla's employment (i.e., budget) was a 

pretext, and (2) whether the village fired Cipolla because of her age. During deliberations, the 

jury submitted a note to the judge asking whether the term "fired" includes laid off, terminated, 

or eliminated. After conferring with counsel, the judge decided not to answer the question and 

instead instructed the jurors to "resolve your question by continuing to review said facts and by 

reference to the jury instructions." The jury returned a verdict in favor of the village. After the 

trial court denied her motion for a new trial, Cipolla appealed. 

¶ 2 Cipolla argues the jury's verdict should be reversed and the case remanded for a new trial 

because: (1) the trial court abused its discretion by refusing to clarify for the jury the meaning of 

the word "fired"; (2) defense counsel made improper, prejudicial remarks during closing 

argument; (3) the jury should have been given a "cat's paw" liability instruction; (4) the village 

should not have been permitted to present witnesses who denied the comment about Cipolla's 

age had been made during the closed board meeting while also maintaining executive privilege 

over an audiotape of the meeting; (5) the trial court erred in permitting the village to present 

irrelevant evidence about her husband's business; and (6) the jury's verdict was against the 

manifest weight of the evidence. 

¶ 3 We affirm. The jury's request for clarification on the meaning of the word "fired" 

presented a factual issue, and the trial court did not err in refusing to answer it. Further, the 

court's evidentiary rulings and jury instructions were not grounds for a new trial, defense 

counsel's comments during closing arguments were not prejudicial, and the jury's verdict was not 

against the manifest weight of the evidence. 
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¶ 4 BACKGROUND

¶ 5 Diane Cipolla began working as the business regulation officer in the Village of Oak 

Lawn's finance department in 1996. On April 11, 2008, Cipolla met with village manager Larry 

Deetjen, Brian Hanigan, the village's director of finance and Cipolla's supervisor, and Dan 

Omiecinski, the village's human resource director. Deetjen told Cipolla that her job was being 

eliminated or automated due to budget constraints. Cipolla was placed on administrative leave 

and continued to receive full pay and benefits until April 23, 2008, when her employment was 

officially terminated. On April 22, 2008, the village board of trustees approved amendments to 

the village's 2008 budget, which included the elimination of Cipolla's position, as well as three 

firefighter positions. 

¶ 6 Cipolla contends that on April 10, 2008, the day before she was terminated, the village 

board met in a closed executive session and, while discussing reorganization and staff cuts, her 

supervisor, Brian Hanigan, commented that Cipolla was "older." Cipolla also asserts that 

although she was told her position was being eliminated or automated, her job responsibilities 

were transferred to Deanne Adasiak, another village employee who was 20 years her junior.

Cipolla contends that budget constraints were only a pretext for her termination, because not 

long after, the village hired a budget director for a salary in excess of $80,000, gave many of its 

finance department employees raises, and continued to hire new employees. 

¶ 7 Cipolla filed a charge of age discrimination with the Illinois Department of Human 

Rights, which dismissed the charge on November 10, 2010. Cipolla then filed a complaint in the 

circuit court of Cook County on February 14, 2011 (which was amended on March 20, 2012),

alleging she was fired because of her age in violation of the Illinois Human Rights Act (Act) 

(775 ILCS 5/1-102 et seq. (West 2012)). Section 1-102(A) of the Act provides, in relevant part, 
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that "It is the public policy of this State *** [t]o secure for all individuals within Illinois the 

freedom from discrimination against any individual because of his or her *** age ***." 775 

ILCS 5/1-102(A) (West 2012). The village filed an answer denying all of Cipolla's allegations 

and an affirmative defense asserting that Cipolla could not establish a prima facie case of age 

discrimination because no other similarly situated younger employees were treated differently 

and the village never sought a replacement for her position. The village contended Cipolla was 

terminated for budgetary reasons, because it had a deficit of more than $1 million that it decided

to alleviate by cutting personnel costs.

¶ 8 During pretrial discovery, Cipolla asked the village to produce the audiotape from the 

executive session of the village board, but the village refused, arguing it was privileged under the 

Illinois Open Meetings Act (5 ILCS 120/1 et seq. (West 2012)). Cipolla then filed a motion to 

compel the village to produce the audiotape, or alternatively, to bar the village from denying that 

Hanigan made statements about Cipolla's age during that meeting. In support of her motion, 

Cipolla contended that because budgetary decisions were purportedly made during the executive 

session, it was not a properly closed meeting and thus the exception to disclosure under the Open 

Meetings Act was inapplicable. Cipolla also argued she had a particularized need for the 

audiotape because board members who were at the meeting presented conflicting deposition 

testimony as to whether Hanigan commented about her age and discovery of the truth weighed in 

favor of compelling the village to produce the audiotape. Cipolla alternatively asked the trial 

court to inspect the audiotape in camera to determine whether anything related to her age was 

said during the executive session. 

¶ 9 After argument, the trial court ordered the village to submit the audiotape and a verified 

transcript for in camera review. After reviewing the tape and the transcript, the trial court denied
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Cipolla's motion. The trial judge said that the transcript indicated that a male speaker mentioned 

Cipolla's name twice during the executive session and that after listening to the tape, which was 

difficult to understand, he was able to determine that nothing was said regarding Cipolla's 

termination, her age, or anything else relevant to the case. The court also denied Cipolla's later

motion to have the audiotape inspected by a forensics recording expert to determine if it had 

been edited, altered, or otherwise not properly preserved, because the court found no evidence 

that the recording's integrity had been compromised. 

¶ 10 Before trial, Cipolla filed a motion in limine to bar the village from presenting testimony 

denying that Hanigan made statements about her age during the executive session or, in the 

alternative, to bar testimony relating to the tape. The trial court's ruling on that motion is not in 

the record, but it appears from the trial transcript that the motion was denied, at least in part, 

because the village presented several witnesses at trial who testified that Hanigan did not make 

any comments about Cipolla's age during the executive session. 

¶ 11 The evidence at trial showed that on April 10, 2008, the day before Cipolla was 

terminated, the village's board of trustees met in executive session to discuss budget 

amendments. The village had a budget deficit of about $1.4 million and the board was 

discussing, among other things, the elimination of some vacant positions and the dismissal of 

some village employees. Village board member Jerry Hurckes testified that while discussing 

Cipolla's termination, finance director Hanigan said, "Well, she [Cipolla] is older." Hurckes said 

he admonished Hanigan saying, "those kinds of words can't be used because that's what gets us 

in trouble." Hurckes said trustee Alex Olejniczak also similarly admonished Hanigan. 

Olejniczak, however, testified he never heard Jerry Hurckes scold Brian Hanigan for making 

comments about Cipolla's age and said that if Hanigan had made that type of comment he would 
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have objected but denied having done so. Several other witnesses at the executive session, 

including village trustees Thomas Phelan and Carol Quinlan and village mayor David Heilmann, 

also testified that they did not hear Hanigan make any comments about Cipolla's age. 

¶ 12 Village manager Deetjen testified that Hanigan recommended eliminating Cipolla's 

position and giving her job responsibilities to Deanne Adasiak, a village employee who worked 

on special events. Deetjen said that the decision to terminate Cipolla was not performance-based

but was an effort to address the village's budget problems. Deetjen testified that in addition to 

Cipolla's position, the budget amendment eliminated several vacant positions and resulted in the 

layoff of three firefighters. Hanigan acknowledged that during the executive session meeting he 

recommended that the village's finance department be restructured by consolidating Cipolla's and 

Adasiak's positions to help close the village's budget gap but denied making any statements 

about Cipolla's age during that meeting. 

¶ 13 On April 22, 2008, the village board held a public meeting and approved the budget 

amendments, which included the elimination of Cipolla's position and three firefighter positions. 

Trustee Hurckes voted against the amendments. Trustees Olejniczak, Phelan and Quinlan voted 

for the budget amendment, but testified their votes were not motivated by Cipolla's age. Later, 

Cipolla saw Hurckes at a political fundraiser, and he told her about Hanigan's comments 

regarding her age. At about the same time, Cipolla saw a job posting on the village website for a 

budget director with a salary that exceeded the salary she had been earning in the business 

regulation officer position. Deetjen confirmed that a few months after Cipolla left the village 

hired a budget director, whose salary exceeded Cipolla's. Cipolla acknowledged she was not 

qualified for that job because she did not have an accounting degree. 
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¶ 14 Cipolla also acknowledged that on the day she was terminated, Deetjen told her about a 

potential opening in the village's 911 telecommunications center, but said no formal job offer 

was made, and she believed she would need to pass a civil service test before she could be 

offered that position. On cross-examination, Cipolla conceded that she was not interested in the 

telecommunications position because she had small children and did not want to work evening 

and weekend hours and also did not think she could handle the pressure of the job. Cipolla said 

the village offered no other alternatives to termination, such as taking a lower salary or assuming 

the job duties of another village employee with less tenure. 

¶ 15 After Cipolla was terminated, she submitted paperwork with the Illinois Municipal 

Retirement Fund (IMRF) and has been receiving pension payments since April 2008. Cipolla 

testified that she filed the IMRF papers so that she and her husband could continue to get health 

insurance through the village's insurance plan rather than buying health insurance from a private 

insurer. She said that the village continues to pay part of her health insurance premium, but at a 

lower rate than when she was a village employee.

¶ 16 After she was terminated, Cipolla searched for other job opportunities, without success. 

In June 2008, she took a part-time, unpaid position at her husband's snack food business. In 

2010, she began receiving salary for her work at the company, and at the time of trial, was 

earning $12,000 a year. Cipolla testified that her duties involve sales and marketing, attending 

trade shows, and sending samples and product pricing information to distributors. She said she 

has business cards with the title of sales director, but said she uses them primarily to provide 

potential customers her contact information. Cipolla described the company as a small, threeemployee business and her job as a "lesser position" than the one she held at the village. 
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¶ 17 On cross-examination, Cipolla acknowledged that her husband's business partner was 

Fred Plochman, one of the owners of Plochman's Mustard Company, that Fred Plochman died 

and her husband is now the sole owner of the business. She also acknowledged that the 

company's products are sold in Whole Foods stores, as well as in China and Dubai. Over 

objection, defense counsel asked Cipolla about a report showing the company had annual 

revenues exceeding $2 million. Cipolla denied knowledge about the company's finances but 

disputed that figure. 

¶ 18 Plaintiff's husband, Paul Cipolla, testified that his company is a small snack food business 

with three employees. He said he hired his wife as a part-time sales director because she was 

unable to find other employment and he thought it would help alleviate the depression she felt 

after losing her job with the village. On cross-examination and over objection from plaintiff's 

attorney, Paul Cipolla testified that his company's 2012 annual revenues were between $500,000 

and $1 million. On redirect, he said that the $500,000 to $1 million figure was not income to him 

because it did not include deductions for expenses paid to distributors and contractors. 

¶ 19 During the jury instruction conference, Cipolla tendered a non-Illinois Pattern Jury 

Instruction (plaintiff's instruction No. 10), which read as follows: 

"The Illinois Human Rights Act prohibits 'unlawful discrimination.' Unlawful 

discrimination is discrimination against a person on the basis of his or her race, color, 

religion, national origin, ancestry, age, sex, marital status or handicap. 

The Act specifically defines the following conduct as a civil rights violation in the 

employment context: For any employer to refuse to hire, to segregate, or to act with 

respect to recruitment, hiring, promotion, renewal of employment, selection for 
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training or apprenticeship, discharge, discipline, tenure or terms, privileges or 

conditions of employment on the basis of unlawful discrimination." 

¶ 20 The village objected, arguing that the first paragraph alone would sufficiently and 

accurately state Illinois law and noting that plaintiff's instruction No. 11 (see Illinois Pattern Jury 

Instructions, Civil, No. 250.02 (2011) (hereinafter, IPI Civil (2011)) already addressed the 

elements Cipolla was required to prove to prevail on her age discrimination claim. Plaintiff's 

instruction No. 11 stated: 

 "The Plaintiff has the burden of proving each of the following propositions: 

First, that the Plaintiff was an employee of the Defendant;

 Second, that the Plaintiff was fired from her employment with the Defendant;

 Third, that the Plaintiff was fired because of her age; 

Fourth, that the Plaintiff sustained damages as a result of her firing.

If you find from your consideration of all the evidence that each of these 

propositions has been proven, then your verdict should be for the Plaintiff. On the 

other hand, if you find from your consideration of all the evidence that any of these 

propositions has not been proven, then your verdict should be for the Defendant." 

¶ 21 The trial court gave plaintiff's instruction No. 11 and over Cipolla's objection, only gave 

the jury the first paragraph of plaintiff's instruction No. 10. 

¶ 22 Two other proposed jury instructions on which the parties disagreed were plaintiff's

instructions Nos. 17 (a modified IPI) and 18 (a non-IPI). Plaintiff's instruction No. 17 modified 

IPI Civil (2011), No. 50.02 agency instruction as follows: "Brian Hanigan and Larry Deetjen 

were agents of the Defendant Village of Oak Lawn at the time of Plaintiff's termination. 

Therefore, any act or omission of the agents at that time was in law the act of omission of the 
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Defendant Village of Oak Lawn." The village objected, arguing that agency was not a contested 

issue and the instruction would confuse the jury. The village also objected to Cipolla's proposed 

non-IPI instruction No. 18, seeking to hold the village liable for Hanigan's discriminatory intent, 

also referred to as "cat's paw liability." Plaintiff's instruction No. 18 read: "The Defendant 

Village of Oak Lawn may be held liable for employment discrimination based on the 

discriminatory animus of a supervisor who influenced, but did not make, the ultimate 

employment decision, if that supervisor performs an act motivated by discriminatory animus that 

is intended by the supervisor to cause the termination, and does cause the termination." 

¶ 23 Cipolla's attorney contended cat's paw liability was an issue because evidence showed 

that Hanigan recommended to Deetjen that Cipolla be terminated. The trial court declined to give 

instruction No. 18, finding it would confuse the jury, but instead gave the modified agency 

instruction, plaintiff's instruction No. 17. 

¶ 24 While the jurors were deliberating, they sent a note to the judge, stating, "Judge, Please 

define fire. Does it include, a) laid off; b) terminated; c) eliminated." Cipolla's counsel argued the 

trial judge should answer in the affirmative and suggested that the jury's confusion could have 

been avoided if the trial judge had given plaintiff's proposed instruction No. 10 in full. The trial 

judge decided the question was a factual one and answered it by telling the jurors "You should 

resolve your questions by continuing to review said facts and by reference to the jury 

instructions." Cipolla's attorney did not object to this response. 

¶ 25 The jury returned a verdict in favor of the village. In addition, the jury answered two

special interrogatories in the negative, finding that the nondiscriminatory reason the village gave 

for terminating Cipolla's employment (i.e., budget) was not a pretext and that the village did not 

fire Cipolla because of her age. On January 31, 2013, the trial court entered judgment against 
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Cipolla and in favor of the village. Cipolla filed a motion for a new trial arguing, in part, that the 

verdict was against the manifest weight of the evidence, that the trial judge erred in refusing to 

answer the jury's question regarding the definition of "fired," and that several of the trial judge's 

rulings on evidence and jury instructions were erroneous. The trial court denied the motion for a 

new trial and Cipolla filed a timely notice of appeal. 

¶ 26 ANALYSIS

¶ 27 Jurors' Question 

¶ 28 Cipolla first contends the trial court abused its discretion by not answering the jury's 

question whether "fired" includes laid off, terminated, or eliminated. She asserts the judge's 

failure to provide an answer led to jury confusion and warrants reversal and a new trial. 

¶ 29 As a preliminary matter, we address defendant's assertion that Cipolla waived the issue 

by assenting to the trial court's decision to tell the jury to continue to deliberate. Generally, when 

a party consents to a trial court's answer to a jury question, that party cannot later argue that the 

trial court's answer was an abuse of discretion. People v. Averett, 237 Ill. 2d 1, 24 (2010). The 

record shows that after receiving the jury's question, the trial judge asked the attorneys for input 

on a response. When defense counsel suggested the judge tell the jury that "fired" does not 

include eliminated, plaintiff's attorney objected and asked to "make a record" that the trial court 

should have given the jury plaintiff's instruction No. 10. Although the judge ultimately rejected 

plaintiff's request, stating that he could not give the jury additional instructions, and told the jury 

to continue to review the facts, plaintiff's counsel did present an objection, which she again 

raised in her motion for a new trial. Thus, plaintiff preserved the issue.

¶ 30 Generally, the trial court has “a duty to provide instruction to the jury where it has posed 

an explicit question or requested clarification on a point of law arising from facts about which 
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there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-29 (1994). The duty to 

answer the jury's question applies even if the jury was properly instructed. Id. at 229; see also 

People v. Reid, 136 Ill. 2d 27, 39 (1990). Therefore, “[t]he failure to answer or the giving of a 

response which provides no answer to the particular question of law posed has been held to be 

prejudicial error.” Childs, 159 Ill. 2d at 229. But the trial court has the discretion to “decline to 

answer a jury's inquiries where the instructions are readily understandable and sufficiently 

explain the relevant law, where further instructions would serve no useful purpose or would 

potentially mislead the jury, when the jury's inquiry involves a question of fact, or if the giving 

of an answer would cause the court to express an opinion which would likely direct a verdict one 

way or another.” Id. at 228. A trial court's decision on how to respond to jury questions during 

deliberations is “ordinarily left to the discretion of the trial court, so that the trial court's decision 

will be disturbed on appeal only if that decision constituted an abuse of discretion. [Citation.]” 

(Internal quotation marks omitted.) People v. Nash, 2012 IL (1st) 093233, ¶ 39. 

¶ 31 Cipolla relies on Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill. App. 3d 165 

(1997), to support her argument that the trial judge's decision not to answer the jury's question 

was an abuse of discretion. In Van Winkle, the plaintiff alleged that the defendant conspired with 

others to suppress the health hazards of asbestos exposure. Van Winkle, 291 Ill. App. 3d at 167. 

During deliberations, the jury asked a question about the underlying charge of a civil conspiracy, 

namely expressing " 'confus[ion] about the meaning of "one or more parties" in a conspiracy' " 

and whether it could mean defendant alone or had to be defendant and another company. Id. at 

171. After conferring with counsel for both parties, the trial court referred the jury to the written 

jury instructions. Id. at 172. The appellate court found this response to be an abuse of discretion 

warranting reversal. The appellate court first noted that the jury asked a specific question that 
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manifested their confusion on a substantive legal issue—who could enter into a conspiracy—

which was critical to deciding the merits of the defense. The court further noted that although the 

jury instructions may have been proper, that "is not the determinative inquiry. The issue is 

whether the instructions were clearly understandable to the jury.” (Internal quotation marks 

omitted.) Id. at 173. Concluding that the trial court's failure to answer the question substantially 

prejudiced the defendant, the court stated: “[I]n the midst of jury deliberations after a vigorously 

contested trial, a question from the jury deserves as much—if not more—thoughtful 

consideration as did the original instructions.” Id. at 174. 

¶ 32 The Van Winkle court relied heavily on the reasoning of Childs. In Childs, the jury 

requested clarification of jury instructions on an “intricate” and “difficult” point of law—whether 

a guilty verdict on armed robbery mandated a guilty verdict of murder or still allowed for the 

jury to find defendant guilty of voluntary or involuntary manslaughter. In response, the trial court 

briefly attempted to answer the question through an ex parte communication, but this response 

did not clarify the legal issues raised in the jury's question. While the trial court admitted that it 

did not understand the question, it made no effort to clarify the jury's question. The supreme 

court found that the question reflected juror confusion over a substantive legal issue and the trial 

court had a duty to answer it. Therefore, the trial court's failure to address the problem that 

triggered the question substantially prejudiced the defendant. Childs, 159 Ill. 2d at 234. The 

supreme court in reversing the judgment concluded, “It is not apparent to us that the manner in 

which the court dealt with the jury's inquiry was not a factor in the rendering of that verdict.” Id. 

at 234-35. 

¶ 33 Cipolla contends that as in Van Winkle and Childs, the jury's question expressed 

confusion about a specific substantive legal issue and the trial judge's refusal to answer it left the 
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jury confused as to a fundamental element of employment discrimination, requiring reversal and 

a new trial. We disagree. The jury's question, whether "fired" included laid off, terminated, or 

elimination of Cipolla's position, was a question of fact for the jury to decide. The jury heard 

several witnesses, including village manager Deetjen, testify about the distinction between an 

employee being fired and a position elimination, suggesting that Cipolla was not fired because 

the decision not "performance based." Village trustee Olejniczak also testified about a factual 

distinction between firing, terminating, and eliminating an employee's position, in that firing is 

performance-based while a position elimination involves budgetary factors. The jury question in 

this case, unlike the jury questions in Van Winkle and Childs, involves a question of fact, not a 

question of law. Thus, the trial court did not abuse its discretion in not answering the jury's 

question. 

¶ 34 We also disagree with Cipolla's contention that the jury's question would have been 

avoided if the trial court had given her proposed jury instruction No. 10, rather than only the first 

paragraph. The remainder of that proposed jury instruction does not mention layoffs or 

elimination of positions or define what those terms mean in relation to the word "fired." The 

decision to provide a particular jury instruction lies within the sound discretion of the trial court

and will not be disturbed absent abuse of discretion. Webber v. Wight & Co., 368 Ill. App. 3d 

1007, 1020-21 (2006). Cipolla has failed to show that if the trial judge had given her proposed 

instruction, the jury would have not submitted the question or that the trial court abused its 

discretion in refusing to do so. 

¶ 35 Finally, we note that Cipolla's claim of error is based on the trial court's decision to 

refrain from answering a question related to an instruction she tendered. If the jury was confused 

about the meaning of the word "fired," it was because Cipolla used that word in a jury instruction 
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she tendered (plaintiff's instruction No. 10). By tendering the instruction, Cipolla took the 

position that it was an accurate statement of the law, and she cannot now argue error related to 

the trial court's decision not to clarify that instruction. Further IPI Civil (2011) No. 250.02, on 

which plaintiff's instruction No. 10 was based, gives a party the option of using "discharged" 

instead of "fired," which would have been a more accurate description of the village's action—it 

discharged her due to the elimination of her position for budgetary reasons. Because Cipolla did 

not use the more accurate term when requesting the jury instruction, she cannot now complain. 

¶ 36 Defense Counsel's Closing Argument 

¶ 37 Cipolla next contends the trial court abused its discretion in denying her request for a new 

trial based on defense counsel's comments during closing arguments. The village's attorney

asserted that Cipolla "[was not] fired, at all" because "[t]he Village of Oak Lawn is still 

subsidizing her health insurance. They don't do that for fir[ed] employees." Cipolla contends the 

statement was false because her contributions to IMRF while she was a village employee entitled 

her to health insurance regardless of how her employment was terminated. Cipolla asserts that 

defense counsel attempted to confuse the jury by implying that Cipolla's receipt of health 

insurance through IMRF necessarily means she was not fired. 

¶ 38 The purpose of closing argument is to draw reasonable inferences from the evidence and 

assist the jury in fairly arriving at a verdict based on the law and evidence. Copeland v. Stebco 

Products Corp., 316 Ill. App. 3d 932, 948 (2000) As a result, counsel is afforded wide latitude 

during closing argument and may comment and argue on the evidence and any reasonable 

inferences that may be fairly drawn from the evidence. Clarke v. Medley Moving & Storage, Inc.,

381 Ill. App. 3d 82, 95 (2008). “The scope of closing argument is within the sound discretion of 
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the trial court and the reviewing court will reverse only if the argument is prejudicial.” (Internal 

quotation marks omitted.) O'Neil v. Continental Bank, N.A., 278 Ill. App. 3d 327, 340 (1996). 

¶ 39 First, we note that defense counsel's assertion that Cipolla was not fired was appropriate 

as that was the basis of the village's affirmative defense, namely that her position was eliminated 

as part of an overall restructuring of the finance department. Several witnesses at trial provided 

testimony to support this defense and witnesses stated that Cipolla was not "fired" for 

performance reasons, but rather budget cuts lead to the elimination of her position. Thus, 

defense counsel's comments were reasonably drawn from the evidence. 

¶ 40 Furthermore, although Cipolla contends defense counsel made a false statement by 

stating that Cipolla must not have been fired because fired employees are not entitled to 

healthcare benefits, the record does not indicate that defense counsel knew this assertion was 

false. Plaintiff's attorney did not object to the statement during the trial and thus, nothing in the 

record sheds light on whether the statement was knowingly false. But, even if defense counsel

knew that this assertion regarding Cipolla's entitlement to village subsidized healthcare benefits 

was false, Cipolla is unable to show that she was prejudiced by it. The central issue in the case 

was whether the village terminated Cipolla because of her age and only used the budget as a 

pretext. Answers to the two special interrogatories establish that the jury found the village acted 

appropriately. Thus, because defense counsel's comments did not go to the central question—the 

reason for Cipolla's termination—Cipolla is unable to show that she was prejudiced by defense 

counsel's closing argument, and they do not constitute grounds for a new trial. 

¶ 41 Cat's Paw Liability Instruction
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¶ 42 Cipolla next argues the trial court erred in refusing her request to give a cat's paw liability 

jury instruction to permit the jury to determine whether the village could be found liable for 

Hanigan's discriminatory motive in recommending her termination. 

¶ 43 Whether to provide a particular jury instruction lies within the sound discretion of the 

trial court, and a reviewing court will not disturb that determination absent a clear abuse of 

discretion. Webber v. Wight & Co., 368 Ill. App. 3d 1007, 1020-21 (2006). It is for the trial court 

to evaluate if a jury instruction is “ 'applicable, supported by evidence in the record, and an 

accurate statement of the law.' ” Id. at 1021 (quoting Luye v. Schopper, 348 Ill. App. 3d 767, 773 

(2004)). Litigants are entitled to have the jury instructed as to their theory of the case, but the 

instructions they propose “must accurately state applicable law” for them to be given at trial. 

(Internal quotation marks omitted.) Id. Ultimately, no abuse of discretion can be established as 

long as “taken as a whole, the instructions fairly, fully, and comprehensively apprise[ ] the jury 

of the relevant legal principles” of the case. Schultz v. Northeast Illinois Regional Commuter 

R.R. Corp., 201 Ill. 2d 260, 273-74 (2002). A new trial will be granted based on the court's 

refusal to give a proposed instruction only when that refusal has caused serious prejudice to a 

litigant's right to a fair trial. See Stift v. Lizzadro, 362 Ill. App. 3d 1019, 1026 (2005). 

¶ 44 The cat's paw theory of liability seeks to hold an employer liable when a supervisory 

employee acts with discriminatory intent to cause a higher-up employee to take adverse action 

against the plaintiff. Staub v. Proctor Hospital, 562 U.S. 411, ___, 131 S. Ct. 1186, 1190 (2011). 

The employee with a discriminatory intent does not make the firing decision but influences 

another person who unwittingly fires the employee. To succeed under this theory, a plaintiff 

must show the nondecisionmaker exercised such “ ‘singular influence’ ” over the decisionmaker 

that the decision to terminate was the product of “blind reliance.” Id. at ___, 131 S.Ct. at 1190. 
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(The term “cat's paw” comes from a fable by Aesop and is cited in the employment 

discrimination context in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). In the fable, a 

monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat does so, 

burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with 

nothing. A coda to the fable observes that the cat is similar to princes who, flattered by the king, 

perform services on the king's behalf and receive no reward. Staub, 562 U.S. at ___, n.1, 131 S.

Ct. at 1190, n.1.) 

¶ 45 The evidence at trial did not warrant a cat's paw liability instruction, and thus, the trial 

court did not abuse its discretion in refusing to give it. Several witnesses, including Deetjen, 

Hurckes and Olejniczak, testified that Oak Lawn employed a village manager form of 

government and that Deetjen, as village manager, had the authority to make all personnel 

decisions. It is undisputed that department directors could make recommendations to Deetjen 

regarding hiring and firing of employees and that Hanigan, the finance department director, 

recommended that the finance department be reorganized by eliminating Cipolla's position and 

transferring her job responsibilities to another village employee. But there was no testimony or 

evidence indicating that Deetjen blindly relied on Hanigan when he decided to terminate Cipolla. 

¶ 46 Moreover, for Cipolla's termination to become final, the budget amendments that 

proposed the elimination of the business licensing officer position, as well as three firefighter 

positions, had to be approved by a majority of the village board. Board members who voted in 

favor of the budget amendment testified their votes were in no way motivated by Cipolla's age. 

Thus, in the absence of clear evidence that Hanigan had a discriminatory intent and was a 

"singular influence" on Deetjen, a cat's paw liability instruction was not warranted. 
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¶ 47 Further, the trial judge did give plaintiff's jury instruction No. 18, which permitted the 

jury to find the village liable under an agency theory, namely, that because Hanigan, the village's 

agent, improperly discriminated against Cipolla, the principal, the village is liable. An additional 

cat's paw liability instruction was not necessary to permit the jury to find the village liable based 

on Hanigan's alleged discriminatory comments. Thus, Cipolla was not prejudiced by the trial 

court's decision not to give the cat's paw liability instruction. 

¶ 48 Denial of Motion in Limine

¶ 49 Cipolla contends she was denied a fair trial when the trial court allowed the village to 

present witnesses to deny that Hanigan made statements about Cipolla's age during the April 10, 

2008 executive session, while simultaneously permitting the village to claim privilege under the 

Open Meetings Act (5 ILCS 120/1 et seq. (West 2012)) as a basis for not turning over the 

audiotape. 

¶ 50 As noted above, Cipolla filed a motion asking the trial court to either compel the village 

to turn over a copy of the audiotape from the executive session or to bar the village from denying 

that Hanigan made a statement about Cipolla's age during the session. In her motion, Cipolla 

asked in the alternative that the trial court conduct an in camera inspection of the audiotape. The 

court granted the alternative relief requested and, after carefully reviewing the transcript and 

listening to the audiotape in camera, determined that no mention was made of Cipolla's age and 

that nothing of relevance to this case was said in the executive session. Thus, Cipolla was 

granted the relief she requested in her motion to compel or bar, and cannot argue that the trial 

court erred in denying her motion to compel. 

¶ 51 We also do not find that the trial court erred in permitting the village to present witnesses 

who testified that Hanigan said nothing regarding Cipolla's age during the executive session. As 
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Cipolla notes, before trial she filed a motion in limine asking the trial court to bar the village 

from presenting testimony denying that Hanigan made statements about Cipolla's age during the 

executive session or in the alternative to bar evidence and testimony relating to the tape of the 

April 10, 2008 executive session. Although the trial court's ruling on that motion is not evident 

from the record, given that several witnesses testified that Hanigan did not comment on Cipolla's 

age during the executive session and no witnesses testified about the tape, it appears the trial 

court granted the alternative relief Cipolla requested i.e., by barring any evidence or testimony 

relating to the audiotape. Thus, once again, Cipolla cannot be heard to complain that the 

alternative relief requested was granted. 

¶ 52 Further, as the appellant, it is Cipolla's burden to present a sufficiently adequate record to 

support her claim of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984). In the absence an 

adequate record, it is presumed the trial court's order was in conformance with Illinois law. Id. 

Any doubts arising from the incompleteness of the record are resolved against appellant. Id. As 

noted, nothing in the record indicates how the trial court ruled on the motion in limine or the 

reasoning behind its ruling. Hence we presume the trial court's ruling was in compliance with 

Illinois law. 

¶ 53 Evidence Regarding Husband's Business 

¶ 54 Cipolla next contends that evidence elicited by the village about the value of her 

husband's snack company was more prejudicial than probative and warrants a new trial.

Specifically, plaintiff points to questions from defense counsel, over objection, regarding the 

revenue generated by her husband's company, the financial status of her husband's deceased 

former business partner, and where the company's products are sold and for how much. Plaintiff 

argues that none of this evidence was relevant to her claim of age discrimination and was 
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intended to prejudice her by suggesting that her husband's business made so much money that 

plaintiff did not need her job at the village. She also contends the trial court erred in permitting 

the jury to take documents regarding her husband's business into the jury room, specifically the 

corporation's annual report filed with the Illinois Secretary of State, when that document was

only used for impeachment purposes. 

¶ 55 Evidence must be relevant to be admissible at a trial. Voykin v. Estate of DeBoer, 192 Ill. 

2d 49, 57 (2000). Evidence is only relevant if it proves a fact in controversy or renders a matter 

at issue more or less probable. In re A.W., 231 Ill. 2d 241, 256 (2008). 

¶ 56 We agree with plaintiff that evidence regarding the size and revenue of her husband's 

business was not directly relevant to her claim of age discrimination. But Cipolla had a duty to 

mitigate her damages by seeking employment. ISS International Service System, Inc. v. Human 

Rights Comm'n, 272 Ill. App. 3d 969 (1995) (party alleging employment discrimination required 

to make reasonable efforts to mitigate damages by seeking new employment). Cipolla testified 

that she was unable to find a position similar to the one she held at the village and became a paid 

employee at her husband's company in 2010. Cipolla described her husband's company as a 

small business and her position as "lesser" than the one she held at the village. To rebut the 

argument that Cipolla's damages may be greater based on her inability to find satisfying 

employment, it was proper for the village to question Cipolla about her current position with her 

husband's company, including the company's revenues and sales to determine, for damages 

purposes, whether her job likely was less fulfilling than her prior position. 

¶ 57 Thus, because the questions regarding Cipolla's husband's business were relevant to 

damages and plaintiff's efforts in mitigating them, the trial court did not err in permitting the 

village to elicit the evidence.
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¶ 58 We also find that the trial court did not err in permitting the jury to take into the jury 

room the annual report for Cipolla's husband company, which listed Cipolla as 

secretary/treasurer. Relying on Esderts v. Chicago Rock Island & Pacific R.R. Co., 76 Ill. App. 

2d 210, 229 (1966), Cipolla contends that documents used only for impeachment purposes may 

not go to the jury room. In admitting that document into evidence, the trial judge noted that it

could be used substantively and not just for impeachment because Cipolla denied she was the 

corporation's secretary/treasurer. Thus, since the document was admitted into evidence, the trial 

court did not err in permitting the jury to take it into the jury room. But even if, as Cipolla 

contends, she never denied that she had a title with the company but simply stated that she had 

never seen the annual report before, the trial court did not err in permitting the jury to take the 

document to the jury room. A trial court has great discretion in deciding what documents to send 

to the jury room. Brdar v. Cottrell, Inc., 372 Ill. App. 3d 690 (2007). The trial court did not 

abuse its discretion in permitting into the jury room a document that, as noted above, was 

relevant to the issue of mitigation of damages. 

¶ 59 Verdict Was Not Against Manifest Weight of the Evidence

¶ 60 Lastly, Cipolla contends the trial court's judgment should be reversed and the case 

remanded for a new trial because the verdict in the village's favor was against the manifest 

weight of the evidence. “A court of review is empowered to reverse a jury verdict only if it was 

against the manifest weight of the evidence.” Ford v. City of Chicago, 132 Ill. App. 3d 408, 412 

(1985). Typically, a verdict will be viewed as being against the manifest weight of the evidence 

“where it is palpably erroneous and wholly unwarranted [citation], is clearly the result of passion 

or prejudice [citation], or appears to be arbitrary, unreasonable, and not based upon the evidence

[citation].” Id. In other words, “[w]hen considering whether a verdict was contrary to the 
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manifest weight of the evidence, a reviewing court must view the evidence in the light most 

favorable to the appellee.” Id.

¶ 61 Cipolla argues the evidence at trial did not support a finding that the village terminated 

her employment due to budget considerations. She contends the budget was not on the agenda

for the April 10, 2008 executive session meeting and, moreover, could only have been discussed 

in a public meeting. She also asserts that Hanigan's comment that that she was "older" and the 

village's decision to hire a budget director and give finance department employees raises in 2008

after she was terminated, shows that the budget was only a pretext and that the real reason she 

was let go was her age.

¶ 62 Cipolla's arguments fail for a number of reasons. First, numerous witnesses testified that 

the village was having financial issues and needed to cut about $1.4 million from its budget, 

which supports a finding that the budget was not a pretext for terminating Cipolla. In addition,

the primary evidence that the village terminated Cipolla because of her age were alleged 

statements by Hanigan that she was an "older" employee. But the testimony at trial as to whether 

Hanigan made that statement during the executive session was conflicting. Hurckes testified he 

heard Hanigan say that Cipolla was older and that he and Olejniczak admonished Hanigan for 

the comment. Hanigan denied making any statement about Cipolla's age and Olejniczak denied 

hearing it or admonishing Hanigan. Several other Board members also denied hearing the alleged 

comment and testified that they voted for the budget amendment for financial reasons and not 

because of Cipolla's age. These statements were further supported by the fact that Cipolla was 

not the only person to lose her job as a result of the budget cuts—three firefighter positions were 

eliminated too. The evidence was conflicting, without a doubt, but when viewed in a light most 

favorable to the appellee, the jury's finding that the village did not terminate Cipolla because of 
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her age and only used the budget as a pretext was not against the manifest weight of the 

evidence.

¶ 63 CONCLUSION

¶ 64 We affirm the trial court orders entering judgment in favor of the village and denying 

Cipolla's motion for a new trial. 

¶ 65 Affirmed.