2014 IL App (2d) 130947 No. 2-13-0947 Opinion filed July 7, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
LAURA LASHEVER, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 13-L-230 ) ZION-BENTON TOWNSHIP HIGH ) SCHOOL, ) Honorable ) Margaret J. Mullen, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Laura Lashever, appeals from the dismissal, pursuant to section 2-619(a)(9) of
the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), of her lawsuit
against defendant, the Zion-Benton Township High School, seeking damages resulting from
defendant’s alleged violation of section 15 of the Whistleblower Act (740 ILCS 174/15 (West
2012)). Defendant moved for dismissal on the basis that the lawsuit was barred by laches.
Plaintiff argues on appeal that, because she sought no equitable relief, the defense of laches does
not apply. We affirm.
¶2 Plaintiff filed her complaint on April 1, 2013. She alleged that in August 2001 she was
hired by defendant for the position of school psychologist. In November 2011, she became 2014 IL App (2d) 130947
aware that a student approached a teacher and related having been sexually abused by a family
member. The teacher had the student report the alleged abuse to a school counselor. The
counselor was legally required to report the alleged abuse to the Department of Children and
Family Services (DCFS) (see 325 ILCS 5/4 (West 2010)), but failed to do so. Plaintiff alleged
that, at a meeting with her supervisor and other school employees, she mentioned the counselor’s
failure to report the alleged abuse. Plaintiff alleged that her supervisor reprimanded her for
raising the matter. Eventually, plaintiff reported the alleged abuse to DCFS. According to the
complaint, defendant’s agents retaliated by drastically curtailing her responsibilities and
baselessly accusing her of unprofessional behavior toward coworkers. Plaintiff alleged that the
conduct of defendant’s agents created a hostile work environment and caused her to resign on
August 31, 2012. According to plaintiff, the conduct of defendant’s agents violated the
Whistleblower Act, which prohibits an employer “[from] retaliat[ing] against an employee for
disclosing information to a government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a violation of a State or federal law,
rule, or regulation.” 740 ILCS 174/15(b) (West 2012).
¶3 Plaintiff alleged that she had previously announced her intent to retire at the end of the
2015-16 school year. As damages for defendant’s alleged misconduct, plaintiff sought
compensation for the salary she would have received under a collective bargaining agreement for
the 2012-13, 2013-14, and 2014-15 school years. She also claimed that had she continued to
work those years her annual pension benefit upon retirement would have increased by
approximately $6,600 and that, based on a life expectancy of 90 years, she was entitled to
damages for lost pension benefits totaling roughly $185,000. In addition, plaintiff sought
punitive damages. Plaintiff did not seek reinstatement to her position.
-2- 2014 IL App (2d) 130947
¶4 Defendant filed a combined motion under sections 2-615 and 2-619(a)(9) of the Code
(735 ILCS 5/2-615, 2-619(a)(9) (West 2012)), seeking to dismiss the action or, alternatively, to
strike plaintiff’s request for punitive damages. In support of its request for dismissal pursuant to
section 2-619(a)(9), defendant argued that plaintiff’s lawsuit was barred by laches because there
was an unreasonable delay of seven months from when plaintiff resigned until she filed suit and,
during that period, defendant had engaged an independent contractor to perform the services that
plaintiff had performed. The trial court granted the motion, dismissing the action. This appeal
followed.
¶5 As noted, this appeal is before us for review of the trial court’s ruling on a motion to
dismiss under section 2-619(a)(9) of the Code. Section 2-619 provides that, within the time for
pleading, a defendant may move for involuntary dismissal of a claim on the basis of any of
various enumerated defenses or, under subsection (a)(9), on the basis of “other affirmative matter
avoiding the legal effect of or defeating the claim” (735 ILCS 5/2-619(a)(9) (West 2012)). For
purposes of section 2-619(a)(9), affirmative matter “is something in the nature of a defense
which negates the cause of action completely or refutes crucial conclusions of law or conclusions
of material fact contained in or inferred from the complaint.” Illinois Graphics Co. v. Nickum,
159 Ill. 2d 469, 486 (1994). Here, the “affirmative matter” was that the lawsuit was barred under
the equitable doctrine of laches, which “precludes a litigant from asserting a claim when an
unreasonable delay in raising the claim prejudices the other party.” Wabash County v. Illinois
Municipal Retirement Fund, 408 Ill. App. 3d 924, 933 (2011). “The defense of laches requires a
showing that (1) a litigant has exhibited unreasonable delay in asserting a claim; and (2) the
opposing party suffered prejudice as a result of the delay.” Id.
-3- 2014 IL App (2d) 130947
¶6 In Summers v. Village of Durand, 267 Ill. App. 3d 767, 771 (1994), we observed as
follows:
“Courts have devised a rule to be used in applying the doctrine of laches to causes
of action brought by discharged public sector employees seeking reinstatement and/or
back pay. The rule is that a delay of longer than six months from the date of termination
to the filing of suit is per se unreasonable and will justify dismissal on the ground of
laches if: (a) the plaintiff can show no reasonable excuse for the delay; and (b) the
employer would suffer prejudice by having to pay both a replacement worker’s salary
and a successful plaintiff’s back wages during the period of delay.” (Emphasis added.)
As authority for that rule, we cited Long v. Tazewell/Pekin Consolidated Communications
Center, 236 Ill. App. 3d 967, 969-70 (1992). Plaintiff argues, however, that the rule set forth in
Long is limited to suits seeking both reinstatement and back pay (not one or the other). Id. at 969
(“By case law, a six-month per se laches rule has been developed specifically for causes of
action such as this seeking reinstatement and back pay following an alleged wrongful
termination in the public employment sector.” (Emphasis added.)).
¶7 We conclude that the defense of laches is available where a discharged public-sector
employee seeks back pay, regardless of whether the employee also seeks reinstatement. Bill v.
Board of Education of Cicero School District 99, 351 Ill.
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2014 IL App (2d) 130947 No. 2-13-0947 Opinion filed July 7, 2014 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
LAURA LASHEVER, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 13-L-230 ) ZION-BENTON TOWNSHIP HIGH ) SCHOOL, ) Honorable ) Margaret J. Mullen, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Laura Lashever, appeals from the dismissal, pursuant to section 2-619(a)(9) of
the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), of her lawsuit
against defendant, the Zion-Benton Township High School, seeking damages resulting from
defendant’s alleged violation of section 15 of the Whistleblower Act (740 ILCS 174/15 (West
2012)). Defendant moved for dismissal on the basis that the lawsuit was barred by laches.
Plaintiff argues on appeal that, because she sought no equitable relief, the defense of laches does
not apply. We affirm.
¶2 Plaintiff filed her complaint on April 1, 2013. She alleged that in August 2001 she was
hired by defendant for the position of school psychologist. In November 2011, she became 2014 IL App (2d) 130947
aware that a student approached a teacher and related having been sexually abused by a family
member. The teacher had the student report the alleged abuse to a school counselor. The
counselor was legally required to report the alleged abuse to the Department of Children and
Family Services (DCFS) (see 325 ILCS 5/4 (West 2010)), but failed to do so. Plaintiff alleged
that, at a meeting with her supervisor and other school employees, she mentioned the counselor’s
failure to report the alleged abuse. Plaintiff alleged that her supervisor reprimanded her for
raising the matter. Eventually, plaintiff reported the alleged abuse to DCFS. According to the
complaint, defendant’s agents retaliated by drastically curtailing her responsibilities and
baselessly accusing her of unprofessional behavior toward coworkers. Plaintiff alleged that the
conduct of defendant’s agents created a hostile work environment and caused her to resign on
August 31, 2012. According to plaintiff, the conduct of defendant’s agents violated the
Whistleblower Act, which prohibits an employer “[from] retaliat[ing] against an employee for
disclosing information to a government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a violation of a State or federal law,
rule, or regulation.” 740 ILCS 174/15(b) (West 2012).
¶3 Plaintiff alleged that she had previously announced her intent to retire at the end of the
2015-16 school year. As damages for defendant’s alleged misconduct, plaintiff sought
compensation for the salary she would have received under a collective bargaining agreement for
the 2012-13, 2013-14, and 2014-15 school years. She also claimed that had she continued to
work those years her annual pension benefit upon retirement would have increased by
approximately $6,600 and that, based on a life expectancy of 90 years, she was entitled to
damages for lost pension benefits totaling roughly $185,000. In addition, plaintiff sought
punitive damages. Plaintiff did not seek reinstatement to her position.
-2- 2014 IL App (2d) 130947
¶4 Defendant filed a combined motion under sections 2-615 and 2-619(a)(9) of the Code
(735 ILCS 5/2-615, 2-619(a)(9) (West 2012)), seeking to dismiss the action or, alternatively, to
strike plaintiff’s request for punitive damages. In support of its request for dismissal pursuant to
section 2-619(a)(9), defendant argued that plaintiff’s lawsuit was barred by laches because there
was an unreasonable delay of seven months from when plaintiff resigned until she filed suit and,
during that period, defendant had engaged an independent contractor to perform the services that
plaintiff had performed. The trial court granted the motion, dismissing the action. This appeal
followed.
¶5 As noted, this appeal is before us for review of the trial court’s ruling on a motion to
dismiss under section 2-619(a)(9) of the Code. Section 2-619 provides that, within the time for
pleading, a defendant may move for involuntary dismissal of a claim on the basis of any of
various enumerated defenses or, under subsection (a)(9), on the basis of “other affirmative matter
avoiding the legal effect of or defeating the claim” (735 ILCS 5/2-619(a)(9) (West 2012)). For
purposes of section 2-619(a)(9), affirmative matter “is something in the nature of a defense
which negates the cause of action completely or refutes crucial conclusions of law or conclusions
of material fact contained in or inferred from the complaint.” Illinois Graphics Co. v. Nickum,
159 Ill. 2d 469, 486 (1994). Here, the “affirmative matter” was that the lawsuit was barred under
the equitable doctrine of laches, which “precludes a litigant from asserting a claim when an
unreasonable delay in raising the claim prejudices the other party.” Wabash County v. Illinois
Municipal Retirement Fund, 408 Ill. App. 3d 924, 933 (2011). “The defense of laches requires a
showing that (1) a litigant has exhibited unreasonable delay in asserting a claim; and (2) the
opposing party suffered prejudice as a result of the delay.” Id.
-3- 2014 IL App (2d) 130947
¶6 In Summers v. Village of Durand, 267 Ill. App. 3d 767, 771 (1994), we observed as
follows:
“Courts have devised a rule to be used in applying the doctrine of laches to causes
of action brought by discharged public sector employees seeking reinstatement and/or
back pay. The rule is that a delay of longer than six months from the date of termination
to the filing of suit is per se unreasonable and will justify dismissal on the ground of
laches if: (a) the plaintiff can show no reasonable excuse for the delay; and (b) the
employer would suffer prejudice by having to pay both a replacement worker’s salary
and a successful plaintiff’s back wages during the period of delay.” (Emphasis added.)
As authority for that rule, we cited Long v. Tazewell/Pekin Consolidated Communications
Center, 236 Ill. App. 3d 967, 969-70 (1992). Plaintiff argues, however, that the rule set forth in
Long is limited to suits seeking both reinstatement and back pay (not one or the other). Id. at 969
(“By case law, a six-month per se laches rule has been developed specifically for causes of
action such as this seeking reinstatement and back pay following an alleged wrongful
termination in the public employment sector.” (Emphasis added.)).
¶7 We conclude that the defense of laches is available where a discharged public-sector
employee seeks back pay, regardless of whether the employee also seeks reinstatement. Bill v.
Board of Education of Cicero School District 99, 351 Ill. App. 3d 47 (2004), supports our
conclusion. In Bill the plaintiff originally sought both reinstatement and back pay. After the trial
court dismissed the claim for reinstatement, the plaintiff moved for summary judgment on her
claim for back pay. The trial court granted the motion, rejecting the defendant’s argument that
the claim was barred by laches. The defendant appealed. The plaintiff argued that, because
-4- 2014 IL App (2d) 130947
laches is an equitable defense, it did not bar her claim for money damages. The Bill court
disagreed, reasoning as follows:
“[T]raditionally, statutes of limitation were generally applied to legal actions and the
laches doctrine was applied to those actions based in equity, [but] such ‘mechanical’
applications are no longer followed. [Citation.] Courts have applied laches to ‘equity-
like’ actions, such as mandamus, to quasi-equitable suits, to actions where equitable
considerations are at the heart of a claim actually based in law, as well as to purely legal
claims. [Citations.] For instance, in Schultheis [v. City of Chicago, 240 Ill. 167 (1909)],
the supreme court specifically stated that the laches defense was applicable to pseudo-
equitable proceedings at law, such as actions in certiorari and quo warranto. [Citation.]
Subsequently, *** the First and Fourth District Appellate Courts each explicitly stated
that the laches doctrine is not limited solely to suits in equity and is applicable to cases at
law in which a plaintiff seeks back pay for wrongful termination, in addition to
reinstatement. [Citations.] This approach finds full fruition in Summers, where the court
applied the six-month laches doctrine in an action where only monetary damages were
sought. [Citation.] Along these lines, we note that this action began as one seeking
reinstatement and back wages; however, the reinstatement action was ultimately
dismissed by the trial court, resulting in the remaining claim solely for monetary
damages. As a result, we disagree with plaintiff that the six-month laches rule cannot be
applied to a public employee case seeking monetary damages in the form of back pay,
particularly where the action was originally filed as one seeking reinstatement, as this one
was.” (Emphases added.) Id. at 56-57.
-5- 2014 IL App (2d) 130947
¶8 Unlike the plaintiff in Bill, plaintiff here never sought reinstatement. Nonetheless, the
relaxation of the traditional rule limiting laches to actions based in equity militates against the
formalistic approach that plaintiff advocates. “[I]t is prejudice in the sense of having to pay both
a replacement worker’s salary during a former employee’s delay in challenging his termination
and that employee’s back wages, if his challenge ultimately succeeds, which will justify
application of laches to such a suit.” 1 Coleman v. O’Grady, 207 Ill. App. 3d 43, 48 (1990). The
prejudice, in that sense, does not depend on whether the former employee is ultimately
reinstated.
¶9 We also observe, briefly, that there is another aspect to the prejudice resulting from
plaintiff’s delay in filing suit. Although plaintiff’s complaint indicated that she had been
subjected to a hostile work environment for most of the 2011-12 school year, she did not resign
from her position until the end of August 2012, when the next school year had just started, thus
forcing defendant to replace her services on an expedited basis. Not only did plaintiff leave
defendant in a lurch at the start of the school year, but, by waiting until April of the following
year to file suit, she might have complicated the process of securing a permanent successor.
These circumstances tip the balance of equities even further in defendant’s favor.
¶ 10 Plaintiff alternatively contends that, even if laches bars her claim for back pay, her
lawsuit should still be allowed to proceed because she also sought “front pay.” From our review
of the record, it does not appear that plaintiff raised this issue in the trial court. Accordingly, she
has forfeited review. See, e.g., In re Estate of Chaney, 2013 IL App (3d) 120565, ¶ 8.
Moreover, plaintiff’s argument on this point consists of nothing more than the bare assertion that
1 As to Summers’ other condition, plaintiff does not assert any reasonable excuse for her
delay.
-6- 2014 IL App (2d) 130947
“[a]ny delay in filing her complaint did not cause any harm to the Defendant.” The argument is
not sufficiently developed to warrant appellate review. See, e.g., People ex rel. Madigan v.
Lincoln, Ltd., 383 Ill. App. 3d 198, 208 (2008). We note in closing that we are unaware of any
authority that “front pay” is an available remedy for a violation of the Whistleblower Act. By
affirming the trial court’s decision that plaintiff’s lawsuit is barred by laches, we do not mean to
suggest any opinion as to whether plaintiff’s claim for front pay would otherwise be viable under
Illinois law.
¶ 11 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 12 Affirmed.
-7-