Excerpts from the ChicagoTribune.com:
Country Club Hills has forfeited its defense of a female firefighter’s 2012 sexual harassment and gender discrimination lawsuit over its repeated failure to comply with court orders, a judge has ruled.
Judge Brigid Mary McGrath entered the Oct. 2 default judgment after a lawyer for Firefighter Dena Lewis-Bystrzycki presented a recently discovered fire department memo the city had not turned over, despite city officials’ prior claims under oath that all responsive documents had been produced. McGrath entered the default order on the second and third counts of Lewis-Bystrzycki’s suit, which allege gender discrimination and hostile work environment in violation of the Illinois Human Rights Act and retaliation in violation of the Illinois Human Rights Act.
Unless McGrath vacates her order — an attorney for the city has filed a motion for reconsideration that will be heard Tuesday — the city would be liable for paying damages to Lewis-Bystrzycki in an amount to be determined by a jury, Country Club Hills attorney Stephen Miller said.
The recently discovered document, a June 11, 2010 memo from the former fire chief, states that Lewis-Bystrzycki is to be promoted to lieutenant following the retirements of two lieutenants. She never received the promotion, however, and has alleged in court filings that gender discrimination and harassment were the reason. Had the 2010 memo been turned over when ordered, the case would likely have already settled, Dana Kurtz, the lawyer for Lewis-Bystrzycki, argued.
Instead, Kurtz said, her client had not been promoted, no longer had a career — she’s been on paid leave from the department since 2015 — and had incurred $1.7 million in attorneys’ fees and expenses as a result of the city’s failure to produce the document.
“It’s just by chance that (plaintiff’s forensic expert Andrew Garrett) found this document last night,” Kurtz told the judge, according to a court transcript. “It should have been produced two years ago. It would have changed the nature and course of this litigation dramatically.”
Garrett testified that his forensic analysis of the Country Club Hills fire department’s computer workstations and email server showed the city never searched them for documents relevant to the lawsuit, as it had been ordered to do. His testimony that the city had not searched its computers for documents relevant to the lawsuit came just months after the judge sanctioned Country Club Hills for destroying digital evidence that its firefighters regularly viewed pornography on department computers, despite having received notice to preserve its computer files.
In rendering her Oct. 2 order granting default judgment, McGrath said that due to the city’s repeated failure to comply with her orders, the extent of relevant documents it had not produced could not be known.
McGrath said that even before the previously untendered memo surfaced, she had planned to order that Country Clubs Hills reimburse Lewis-Bystrzycki for attorney fees and costs incurred to hire her forensic expert and to instruct the jury it could draw an adverse inference from the city’s “unreasonable and willful destruction of ESI data on their computers despite being under an obligation to preserve that information.” But, the judge said, after the discovery of weighty documents that should have been produced that weren’t, she would reconsider her sanctions to include default judgment.
“Here we have a case in which defendant, despite giving — being given many opportunities, has failed to comply with the Court’s rules in two different ways; the first in actually searching the documents in its possession to ensure that all responsive documents are produced to the plaintiff and the second, to ensure that the information in its possession is maintained and not damaged,” McGrath said, according to a court transcript of last week’s proceeding.
“So I am going for the more drastic remedy of default, and I hate to do it, but I am going for the remedy of default in addition to the reimbursement for the fees and the expert fees and costs related to the third and fourth motions to compel.”
If McGrath upholds her prior order, the case would still proceed to trial, but the jury would be tasked only with determining the amount of damages, not the city’s liability.
