October, 2009 Issue of Legal Trends

Legal Trends Focuses on Victory in FMLA Case and Latest News in Retaliation Cases

In this issue of Legal Trends, we examine two key opinions shaping the world of federal employment law and priest sexual abuse cases in Illinois. We also discuss several recent lawsuits filed by The Law Offices of Eugene K. Hollander.

Personal Injury Law

State Supreme Court Clarifies When A Sexual Abuse Claim Is Timely.

John Doe (a pseudonym used to protect his identity), was fourteen years old when he met Father Kenneth Roberts, a prominent Catholic priest who wrote several books. In 1984, Doe was an eighth grade student at St. Mary’s Parochial School in Belleville, Illinois. At the time, Father Roberts came to the school as a guest lecturer. When Father Roberts came to the school, church officials knew that Father Roberts engaged in the sexual abuse of children, including a boy in Dallas, Texas.

Father Roberts inspired Doe to pursue a dream of becoming a priest. Doe went to seek Father Robert’s advice. During their meeting, however, Roberts kissed Doe on the mouth and fondled him. Doe ultimately abandoned his aspirations of entering into the priesthood, and chose a different career.

In 1989, the bishop of the Peoria Diocese advised the Archbishop of St. Louis that Roberts had engaged in inappropriate conduct of a sexual nature with a boy in Peoria in 1983. In 1994, it was reported that Father Roberts had sexual contact in 1980 with two boys in St. Louis.

In 1994, the Archdiocese of St. Louis revoked Father Roberts’ right to publicly celebrate Mass, hear confessions, and otherwise provide spiritual counseling. Father Roberts was also prohibited from conducting any youth activities. When the Diocese of Dallas learned that Father Roberts violated these restrictions, it barred him from conducting any priestly duties.

Ultimately, in 1998, Doe sought emergency room treatment for psychological issues. At the hospital, Doe disclosed that he had been sexually abused fifteen years earlier. Doe filed his lawsuit in 2003 against Father Roberts, the Diocese of Belleville, as well as the Diocese of Dallas and the Archdiocese of St. Louis. The Diocese of Belleville and Father Roberts moved to dismiss the lawsuit on the grounds that his claim was time barred due to the statute of limitations.

Illinois sexual abuse law is complicated since the legislature amended the applicable statute of limitations in 1994 and again in 2003. Under the 1994 law, a sexual abuse victim who had suffered abuse before they turned 18 was required to bring a lawsuit against those responsible within two years from the time that the individual discovered the sexual abuse. Sexual abuse victims often repress the memories of the assault and are unable to bring claims earlier. The legislature amended the law again in 2003, allowing sexual abuse victims to bring claims within ten years after reaching their 18th birthday, or within five years after discovering the abuse.

Father Roberts and the Diocese of Belleville argued that the 1994 law applied, and that Doe should have brought his suit no later than 2000. The circuit court agreed and dismissed the case. Doe appealed, and the Illinois Appellate Court reversed, reasoning that the 2003 law applied retroactively to claims. The case proceeded to the Illinois Supreme Court, and on September 24, 2009, the high court held that the earlier law applied, thus dismissing the plaintiff’s claims with finality. It should be noted that the court observed that both the priest and the Diocese of Belleville sought to dismiss the claims, despite the fact that it knew that Roberts had abused several victims before.

The impact of this case is huge. It is expected that many church defendants will move to dismiss pending claims on the basis that the plaintiffs’ claims are time barred. Certain churches, however, try to act more compassionately in attempting to resolve sexual abuse claims prior to litigation. For instance, the Archdiocese of Chicago does not assert the statute of limitations as a defense to a sexual abuse claim prior to litigation where it concludes that there is reasonable cause to the victim’s claim. To date, the Archdiocese of Chicago has paid out over $77 million to resolve sexual abuse claims since 2002.

Employment Law

Supreme Court Rules That Plaintiffs Must Prove That Sole Reason for Their Discharge is Age.

Jack Gross began working for FBL Financial Group, Inc. (FBL) in 1971. In 2001, Gross held the position of Claims Administration Director. Two years later, when Gross was 54, FBL reassigned him to the position of Claims Project Coordinator. At the same time, FBL reassigned many of Gross’s duties to Lisa Kneeskern, a woman who Gross had previously supervised. Kneeskern was then in her early 40s.

Gross considered FBL’s actions a demotion, and filed suit in federal court, alleging age discrimination. The case proceeded to trial, and the judge instructed the jury that it must return a verdict for Gross if it concluded that “age was a motivating factor” in his demotion. The jury returned a verdict against FBL and awarded Gross nearly $47,000 in lost compensation.

FBL appealed and the Eighth Circuit Court of Appeals reversed, reasoning that the jury was improperly instructed. Gross’s appeal to the United States Supreme Court was accepted, and the high court recently issued its opinion, agreeing with the appeals court. In its ruling, the Court distinguished the applicable law in age discrimination claims and those brought under Title VII, which prohibit discrimination based upon gender, nationality, race and religion. The Court remanded the case to the district court for further proceedings.

In Title VII cases, a plaintiff need only establish that the employer’s reason was “a motivating factor” for an illegal termination or demotion, whereas in age discrimination cases, one must show it was the reason.

This is one of the many anomalies in federal employment law. For instance, an age discrimination plaintiff cannot recover compensatory damages for a job loss, while a victim of gender discrimination can. We expect that this new opinion will close the courthouse door to many age discrimination victims.

New Lawsuits Filed by Hollander Law Offices

Crystal Perks, as Special Administrator of the Estate of Jason Cox, Jr. deceased v. County of Shelby, et. al., (federal district court, Springfield)

The plaintiff alleges that the father of her two minor children, Jason Cox, Jr., was involved in a domestic dispute with a relative. Cox was taken before the Shelby County Circuit Court and was sentenced to a six month period of incarceration. Cox told a social worker that he had a suicide attempt four months earlier, and did not know whether he could handle a six month period of incarceration. Illinois law requires jailers to monitor their inmates every thirty minutes. Cox allegedly took his own life after being unsupervised for five hours. Perks alleges that Cox was subjected to cruel and unusual punishment and that the defendants were negligent.

Sam Benson, et. al. v. South Chicago Dodge Chrysler Jeep, Inc. (federal district court, Chicago)

Plaintiff and four other African American salesmen allege that they were subjected to numerous racial taunts during their employment. Plaintiff Benson also alleges that he was discharged from his employment and retaliated against after he filed suit.

About the author

Eugene Hollander is a trial attorney who currently heads his own law office in Chicago. Mr. Hollander has tried numerous cases in the state and federal courts. The Law Offices of Eugene K. Hollander is a full service law firm, concentrating its practice in employment discrimination claims, personal injury and medical malpractice suits, and various types of commercial litigation.

For more information, visit our web site at www.eugenekhollanderlaw.com, or contact us directly at:

The Law Offices of Eugene K. Hollander
33 N. Dearborn
Suite 2300
Chicago, IL 60602
(312)-425-9100
E-mail: EHollander@ekhlaw.com