                               Illinois Official Reports

                                        Appellate Court



                       Lashever v. Zion-Benton Township High School,
                                  2014 IL App (2d) 130947



Appellate Court          LAURA LASHEVER, Plaintiff-Appellant, v. ZION-BENTON
Caption                  TOWNSHIP HIGH SCHOOL, Defendant-Appellee.


District & No.           Second District
                         Docket No. 2-13-0947


Filed                    July 7, 2014


Held                       In an action by a school psychologist under the Whistleblower Act
(Note: This syllabus seeking damages for the retaliation she suffered after reporting a
constitutes no part of the school counselor’s failure to report an allegation that a student had
opinion of the court but been sexually abused by a family member, the trial court properly
has been prepared by the dismissed the suit on the ground that it was barred by laches,
Reporter of Decisions notwithstanding her contention that laches did not apply where she
for the convenience of sought no equitable relief, since plaintiff only sought back pay, not
the reader.)               reinstatement, and laches is available when a discharged public-sector
                           employee seeks back pay, regardless of whether reinstatement is
                           sought.


Decision Under           Appeal from the Circuit Court of Lake County, No. 13-L-230; the
Review                   Hon. Margaret J. Mullen, Judge, presiding.



Judgment                 Affirmed.


Counsel on               Howard Peritz, of Deerfield, for appellant.
Appeal
                         A. Lynn Himes, Kevin B. Gordon, and Parker R. Himes, all of
                         Scariano, Himes & Petrarca, Chtrd., of Chicago, for appellee.
     Panel                    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
       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.
¶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,

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     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.
¶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 laches is an equitable defense, it did not bar her claim for money damages. The
     Bill court disagreed, reasoning as follows:

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               “[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.
¶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

          1
           As to Summers’ other condition, plaintiff does not assert any reasonable excuse for her delay.

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       bare assertion that “[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.




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