November 2025 IICLE FLASHPOINTS

Over dissent, a majority of a Third District Appellate Court panel affirmed the trial court’s exculpation of board members who orchestrated a bulk purchase of condominium units pursuant to §15 of the Illinois Condominium Property Act (the Act), 765 ILCS 605/1, et seq. In Kai v. Board of Directors of Spring Hill Building 1 Condominium Ass’n, 2025 IL App (3d) 240277-U, ¶¶41 – 42, which is the fourth and final appeal of ongoing litigation, the Third District held that the unit owner’s breach of fiduciary duty claim against the board members failed because she could never prove causation in fact of her suffering damages by any breach of fiduciary duties by the directors because she failed to follow the proscribed process in §15 of the Act for contesting the sale price she would receive under the bulk sale process. Justice Anderson dissented primarily on two grounds: (a) the trial court and majority relied on precedent that did not adequately describe the relationship of injury, damage, and damages in causation in fact analysis, and (b) the trial court’s and majority’s holdings disregarded the prior appellate decision in this case rejecting the defendants’ arguments that §15 of the Act superseded common-law remedies such as a breach of fiduciary duty claim. 2025 IL App (3d). ¶¶55 – 58.

Effective January 1, 2018, §15 of the Act, which provides a process for approving bulk sales of condominium units in an existing association, was amended to enhance owner protections and provide a process for disputing the amount a dissenting unit owner could obtain through objecting to the sale within a specified time.

The 2020 Opinion

The facts in this case are involved but can be succinctly reduced to the following background based on the 2020 opinion. Kai v. Board of Directors of Spring Hill Building 1 Condominium Ass’n, 2020 IL App (2d) 190642, 171 N.E.3d 42, 446 Ill.Dec. 607, which is discussed briefly in relationship to fiduciary duties owed by association directors to unit owners in §6.50 of Condominium Law: Daily Operation Challenges (IICLE^® 2024). Approximately 30 unit owners sued the boards of directors of four condominium associations, a master association, the prospective purchaser, and three individuals who were on the condominium boards, who also controlled the owner of more than 75 percent of the units in all but one association and who also controlled the purchaser. The plaintiffs alleged that the directors had breached their fiduciary duties in connection with the bulk sale of units in the buildings. The trial court dismissed the second amended complaint finding that the sole remedies available were those provided under §15 of the Act. Only one unit owner, Maureen Jordan, appealed, and the appellate court reversed the trial court on three counts and affirmed on a fourth count.

In 2020, the appellate court held that §15 of the Act did not supersede common-law remedies such as claims for breach of fiduciary duty as argued by Jordan. It also summarized factual allegations from the complaint and found “[w]e have no difficulty in concluding that, if proven, these allegations could amount to a breach of the defendants’ fiduciary duties.” 2020 IL App (2d) 190642 at ¶26. The court also rejected the defendants’ argument that their only fiduciary duty was to comply with §15. 2020 IL App (2d) 190642 at ¶27.

The 2025 Opinion

On remand, the case proceeded through discovery. The defendants filed a motion for summary judgment. The motion and responses showed that there were factual disputes regarding what the defendant directors had disclosed about their relationship with the purchaser of units and whether the plaintiff had presented evidence of damages. 2025 IL App (3d) 240277-U, ¶¶39 – 40.

However, the majority, concurring with the trial court, found that it did not need to address these factual disputes because the plaintiff would not be able to establish that if the defendants breached their fiduciary duties to the plaintiff regarding the bulk sale, the plaintiff would nevertheless not be able to prove proximate cause. 2025 IL App (3d) 240277-U at ¶41. Like the trial court, the appellate majority relied on the analysis of proximate cause in Feliciano v. Geneva Terrace Estates Homeowners Ass’n, 2014 IL App (1st) 130269, ¶37, 14 N.E.3d 540, 383 Ill.Dec. 257. 2025 IL App (3d) 240277-U at ¶41. In Feliciano, the court held that “[P]roximate cause may be determined as a matter of law where the facts show that the plaintiff would never be entitled to recover.” 2025 IL App (3d) 240277-U at ¶41, quoting Feliciano, 2014 IL App (1st) 130269 at ¶37. Proximate cause has two requirements: cause in fact and legal cause. The courts here focused on causation in fact.

A defendant’s conduct is a cause in fact of the plaintiff’s injury only if that conduct is a material element and a substantial factor in bringing about the injury. [Feliciano, supra, 2014 IL App (1st) 130269 at ¶37.] If the plaintiff’s injury would not have happened absent the defendant’s conduct, then the conduct is a material element and substantial factor in bringing about the injury. Id. However, “[i]f the defendant’s conduct does nothing other than furnish a condition by which the injury is made possible, and the condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury.” Id. 2025 IL App (3d) 240277-U at ¶41.

The appellate court found that there was a lack of proximate cause between the alleged breach of fiduciary duty and the damages. “Simply put, the purported deficiencies in disclosures as to the board members’ interest in [the purchaser] and the 2016 appraisal would not have changed the outcome, as plaintiff and all former plaintiff unit owners voted against the sale.” 2025 IL App (3d) 240277-U at ¶42. Additionally, the appellate court agreed with the trial court that it was ultimately the plaintiff’s failure to comply with §15 of the Act “that actually and proximately caused her damages.” Id. All the former plaintiffs followed the rejection and appeal process under §15, and all of them achieved a higher sale price for their units. Id.

Having found there was no causation to support a breach of fiduciary duty claim, the appellate court also affirmed dismissal of the constructive fraud claim because such a claim required a breach of fiduciary duty claim underlying it. 2025 IL App (3d) 240277-U at ¶43. Similarly, because there were no sustainable tort claims, there could not be any viable civil conspiracy claims. Id. The appellate court also affirmed the trial court’s grant of summary judgment on several affirmative defenses raised by the defendants. 2025 IL App (3d) 240277-U at ¶¶45 – 46.

Justice Anderson’s dissent was critical of the trial court’s and majority’s reliance on Feliciano. 2025 IL App (3d) 240277-U at ¶57. He noted that the trial court applied flawed reasoning in finding “that Jordan’s failure to act under section 15(b) was the proximate cause of her damages. That analysis conflated the proper nexus of conduct to injury and the causal connection between conduct and damages.” 2025 IL App (3d) 240277-U at ¶56.

It has been noted that, “[although] the words, ‘damage,’ ‘damages,’ and ‘injury,’ are sometimes treated loosely as synonyms, there is a material distinction between them. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.”2025 IL App (3d) 240277-U at ¶56, quoting in part Giammanco v. Giammanco, 253 Ill.App.3d 750, 625 N.E.2d 990, 997, 192 Ill.Dec. 835 (2d Dist. 1993).

Justice Anderson reasoned that the injury (illegal invasion of right) was Jordan’s forced sale of her unit based on alleged fraudulent conduct. The damage (harm from injury) was the unreasonably low sale price. The damages (compensation awarded) would be the sum set by the trial court or jury if Jordan proved her case at trial. 2025 IL App (3d) 240277-U, ¶57. Feliciano discusses proximate cause only between conduct and injury, not conduct and damages. Id. The dissent also reasoned that, unlike cases such as Feliciano in which the defendants created conditions under which independent acts actually caused the injury, in the instant case the defendant board members’ conduct “was a critical step in the chain of events that resulted in Jordan’s injury and claim for damages. Without the board members’ alleged malfeasance, Jordan would not have incurred any injury or suffered any damages.” 2025 IL App (3d) 240277-U at ¶59.

Justice Anderson also analyzed legal cause, the second prong of proximate causation, and noted that it is largely a question of foreseeability which, when different inferences could be drawn, is a question for the fact-finder. 2025 IL App (3d) 240277-U at ¶¶62 – 63. He also would reverse on the rulings on affirmative defenses. 2025 IL App (3d) 240277-U at ¶64. Further, he noted that the holdings in the 2020 Kai opinion, namely that common-law remedies are not superseded by §15 of the Act, comported with §918 of the RESTATEMENT (SECOND) OF TORTS (1979) and that there was sufficient evidence to raise a material question of fact for trial. 2025 IL App (3d) 240277-U, ¶¶65 – 66.

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

In People v. Walker, 2025 IL App (4th) 241013, the Fourth District Appellate Court affirmed the trial court’s ruling denying the defendant’s attempt to require a codefendant to testify at trial.

In Walker, the defendant and a codefendant (the mother of their child) were charged with first-degree murder against their minor son. The codefendant entered into a cooperation agreement with the state after pleading guilty to first-degree murder. The plea agreement stated the codefendant would have a sentencing range of 20 to 100 years, waived various appellate and posttrial rights, and required the codefendant to testify truthfully against the defendant if called to testify. 2025 IL App (4th) 241013 at ¶¶6, 10.

During the trial, the defendant attempted to call the codefendant as a witness. The codefendant’s attorney informed the trial court that the codefendant would assert the Fifth Amendment right not to answer questions. The defendant argued that the codefendant’s agreement required the codefendant to testify truthfully if called as a witness. The trial court denied the defendant’s request to have the codefendant testify. 2025 IL App (4th) 241013 at ¶¶87 – 88.

The appellate court affirmed and agreed with the state that the codefendant could invoke the right against self-incrimination and that the defendant could not enforce the codefendant’s agreement with the state for the defendant’s benefit. 2025 IL App (4th) 241013 at ¶¶121 – 122.

The appellate court noted that contract law governs plea agreements because the state and the defense exchange promises to perform or refrain certain actions. 2025 IL App (4th) 241013 at ¶123. Only the contract’s parties or intended third-party beneficiaries are entitled to assert rights created by the contract. There is a strong presumption that the parties intend for a contract to apply solely to themselves. An intention to benefit a third-party must be shown by an express provision identifying the third-party beneficiary by name or description of their class to which they belong. 2025 IL App (4th) 241013 at ¶¶125 – 126.

The appellate court disagreed with the defendant’s argument that the codefendant had agreed to testify at trial under any and all circumstances. The appellate court emphasized that the plea agreement contained various promises, including testifying for the state against the defendant as a state’s witness. The codefendant and the state were the only parties to the plea agreement. The agreement did not indicate or suggest that the defendant would benefit from the agreement. 2025 IL App (4th) 241013 at ¶¶130 – 131. The codefendant still could invoke the right against self-incrimination because at the time of the defendant’s trial, the codefendant had not been sentenced and the conviction was not final. 2025 IL App (4th) 241013 at ¶138.

The appellate court also criticized the defendant’s attorney for not making an offer of proof of what the codefendant would have testified to and, therefore, the appellate court was unable to determine if the codefendant’s testimony would have helped or hindered the defendant’s case. 2025 IL App (4th) 241013 at ¶149.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

In Saud v. DePaul University, 154 F.4th 563 (7th Cir. 2025), the Seventh Circuit affirmed dismissal of an Arab American term faculty member’s §1981 race discrimination claim. The Seventh Circuit found that DePaul had legitimate, nondiscriminatory reasons for its employment decisions (nonrenewal and ineligibility for future employment based on misconduct allegations, low enrollment, and his compensation request) and that the plaintiff failed to show these reasons were pretext for racial animus. As set forth in more detail below, the decision reinforces key doctrines in discrimination law, including the adverse action requirement, honest-belief rule, appropriate comparator analysis, and but-for causation, all within the academic employment context.

Background Facts

The plaintiff, an Arab American, was employed as nontenure-track term faculty member in the Religious Studies Department at DePaul University. Prior to becoming a term faculty member, he was employed as an adjunct instructor in same department. 154 F.4th at 565.

On April 10, 2017, DePaul informed the plaintiff and another faculty member that their contracts would not be renewed for budgetary reasons. That same day, DePaul received a letter from an attorney alleging that the plaintiff had engaged in repeated acts of sexual misconduct with one of his students. While DePaul did not have a policy prohibiting relationships between faculty and students, it did have a policy that “[t]he determination of what constitutes sexual harassment depends upon the specific facts and the context in which the conduct occurs.” 154 F.4th at 566.

DePaul’s Title IX Office conducted an investigation. The student did not participate in the investigation. The plaintiff admitted to a sexual relationship with the student in the investigation but said it was consensual and occurred after she was no longer his student. The Title IX Office found insufficient evidence to sustain a finding of misconduct. Id.

In mid-May 2017, DePaul informed the plaintiff that it was reinstating his adjunct instructor position to teach two courses. The plaintiff made a compensation request that was more than the department chair could offer. Id.

On June 29, 2017, the student filed a civil lawsuit against the plaintiff, alleging sexual harassment. The student claimed that he had sex with her and offered her alcohol when she was still his student. The lawsuit also claimed that he told her she would get an “A” in his class and would not have to take the final exam. Id.

A few days later on July 6, 2017, the department chair informed the plaintiff that due to projected low course enrollment and his compensation requirements, they could no longer offer him employment as an adjunct instructor. Id.

Thereafter, DePaul initiated a second Title IX investigation. The plaintiff gave DePaul the verified answer that he filed in the lawsuit brought by the student. The verified answer confirmed that the plaintiff asked the student out for a drink when she was still a student and that they had sex. The plaintiff did not deny that the sex occurred when she was still a student. The Title IX office concluded that the plaintiff had sexually harassed the student. DePaul informed the plaintiff that based on these findings, he was no longer eligible for future employment. Id.

In June 2019, the plaintiff sued DePaul and two individuals for a variety of claims. Only the §1983 race discrimination against DePaul survived various motions to dismiss. After discovery, the district court granted summary judgment for DePaul. The plaintiff appealed, and the Seventh Circuit affirmed. 154 F.4th at 565 – 566.

The Seventh Circuit’s Decision

Section 1981 prohibits racial discrimination in the making and enforcement of contracts, including employment contracts. The plaintiff invoked the McDonnell Douglas burden-shifting framework (see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973)) to answer the question of whether a reasonable factfinder would conclude that the plaintiff’s race, ethnicity, sex, or religion or other factor caused the discharge or other adverse employment action. Id.

Neither party disputed that the plaintiff met the first three requirements for a prima facie case: (1) as an Arab American, he is a member of a protected class; (2) prior to the events at issue, he was meeting his employer’s legitimate expectations; and (3) he suffered adverse employment actions (the decision to not hire him as an adjunct instructor and the decision to deem him ineligible for future employment). DePaul offered nondiscriminatory reasons for its decisions, so the court proceeded directly to the pretext inquiry. 154 F.4th at 567 – 568.

As to pretext for the decision to not hire him as an adjunct instructor, the plaintiff invoked comparator evidence, shifting/inconsistent reasons, and contradictory evidence. In this instance, the plaintiff attempted to compare himself to a white faculty member who had an anonymous allegation of sexual assault posted online but was rehired. The court rejected the plaintiff’s comparator argument because the white faculty member was not “directly comparable to [the plaintiff] in all material respects.” 154 F.4th at 568, quoting Gamble v. County of Cook, 106 F.4th 622, 626 (7th Cir. 2024). Namely, DePaul could not identify the accuser against the site faculty member, the plaintiff admitted to having sex with a student, no lawsuit was filed against the white faculty member, and the decision was made after the student filed a civil lawsuit against the plaintiff and after the plaintiff made a request for compensation beyond the department chair’s means. 106 F.4th at 568.

The court likewise rejected the plaintiff’s claim that DePaul’s reasons to not hire him as an adjunct instructor were shifting or inconsistent because they were not consistently referenced. The court accepted DePaul’s articulated reasons, including the student’s civil lawsuit, additional reports of misconduct, low projected enrollments in his courses, and the plaintiff’s compensation request above budgeted levels. It relied on the principle that “[w]here an employer relies on multiple reasons for the termination, its failure to address all of the reasons in each communication about the employee is not enough to show contradictions or shifts in rationales that suggest pretext.” [Emphasis in original.] 106 F.4th at 569, quoting Castro v. DeVry University, Inc., 786 F.3d 559, 577 (7th Cir. 2015).

As to the plaintiff’s last point of contradictory evidence, the court determined that the plaintiff did not put forth evidence to meet the inquiry of “[w]hether a reasonable juror could conclude that [the plaintiff] would have [been employed as an adjunct for the fall quarter] if he had a different ethnicity, and everything else remained the same.” 154 F.4th at 570, quoting Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764 (7th Cir. 2016).

As to pretext for the decision deeming him ineligible for future employment, the plaintiff again invoked comparator evidence and a cat’s paw theory of liability. The court rejected the plaintiff’s comparator argument as noted above for one white faculty member and for another white faculty member in this instance because DePaul treated the other white faculty the same way: deeming him ineligible for future employment because of verbal exchanges of a sexual nature that he made to a student. 154 F.4th at 571.

The plaintiff also argued that bias by the Title IX investigator (who is not the final decision-maker) could be imputed to the Dean via a cat’s paw theory because she investigated him when DePaul did not have a policy prohibiting relationships with students. This theory applies when “a biased subordinate who lacks decision-making power uses the formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” 154 F.4th at 571, quoting Johnson v. Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013). The court’s sole focus was “on whether the employer’s stated reason can be characterized as a falsehood rather than an honestly held belief.” 154 F.4th at 572, quoting Brooks v. Avancez, 39 F.4th 424, 435 (7th Cir. 2022). The plaintiff did not show that the investigator did not honestly believe the plaintiff violated the sexual harassment policy following her second investigation. As such, the theory failed. 154 F.4th at 572.

Finally, the court looked at the totality of evidence and concluded no reasonable juror could infer that the plaintiff would have been treated differently if he were not an Arab American. Summary judgment was affirmed.

The case underscores the importance of documenting legitimate nondiscriminatory reasons for employment decisions, conducting adequate investigations when misconduct allegations arise, and ensuring consistent treatment of faculty in comparable circumstances.

For more information about employment and labor law, see LABOR AND EMPLOYMENT ISSUES IN TRANSACTIONS, BUSINESS RESTRUCTURING, AND WORKFORCE REDUCTIONS (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Catherine R. Locallo, Robbins Schwartz, Chicago

Catherine R. Locallo, a partner at Robbins Schwartz, specializes in labor and employment law with a focus on education and board governance. She provides guidance on employment law, collective bargaining, and compliance with various acts. Catherine started as a paralegal, joined Robbins Schwartz in 2004, and became a partner in 2017. She holds a J.D. from The John Marshall Law School and a B.S. from Southern Illinois University. Notably, she is also involved in multiple professional organizations and community activities, including the Glenview Stars Hockey Association.

Who Gets WARN Notice? Understanding Obligations to Employees, Unions, and Local Officials

Each Affected Employee

The Worker Adjustment and Retraining Notification Act defines “affected employees” as “employees who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer.” 29 U.S.C. §2101(a)(5). The employer is required to provide notice to each affected employee, provided that the employee does not have a union representative at the time of notice. 29 U.S.C. §2102(a)(1). Employees entitled to notice include supervisors and managerial employees, but not business owners. If the employee has a union representative, then notice to the union is sufficient as to that employee.

Laid-Off Employees and Part-Time Employees

Even though the employment losses of part-time employees do not count for purposes of determining whether a plant closing or mass layoff occurs, part-time employees are still entitled to notice if they will lose their employment as the result of a covered event. 20 C.F.R. §639.6(b). The courts have held that employees on temporary leave or layoff who have a reasonable expectation of recall are also affected employees entitled to notice if their expectations of recall are being extinguished as a result of the covered event. Kildea v. Electro-Wire Products, Inc., 144 F.3d 400 (6th Cir. 1998) (applying objective analysis as to whether employee on layoff has reasonable expectation of recall so as to be considered affected employee entitled to notice under WARN Act); Jones v. Kayser-Roth Hosiery, Inc., 748 F.Supp. 1276 (E.D.Tenn. 1990).

Union Representatives

The WARN Act provides for notice to “each representative of the affected employees” as of the time notice is required to be given. 29 U.S.C. §2102(a)(1). “Representative” means the exclusive representative under §159(a) or §158(f) of the National Labor Relations Act (NLRA), ch. 372, 49 Stat. 449 (1935) (29 U.S.C. §159(a) or §158(f)), or §152 of the Railway Labor Act (RLA), ch. 347, 44 Stat. 577 (1926) (45 U.S.C. §152). 29 U.S.C. §2101(a)(4). The USDOL’s regulations state that notice is to be served on “the chief elected officer of the exclusive representative(s) or bargaining agent(s) of affected employees at the time of the notice. If this person is not the same as the officer of the local union(s) representing affected employees, it is recommended that a copy also be given to the local union official(s).” 20 C.F.R. §639.6(a). When an employer has a collective-bargaining obligation with both an international and a local union, notice should be provided to the chief elected official (e.g., president) of both organizations. See, e.g., International Association of Machinists & Aerospace Workers, AFL-CIO v. General Dynamics Corp., 821 F.Supp. 1306, 1312 – 1313, 1313 n.2 (E.D.Mo. 1993) (WARN Act requires notice to chief elected official of “both the national and local unions in the case of dual representation,” but failure to give international union notice excused as “technical violation”).

The Supreme Court has held that a union that did not receive required notice has standing to bring a civil action under the WARN Act on behalf of the individual employees it represents, despite nonparticipation in the suit by individual union members. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 134 L.Ed.2d 758, 116 S.Ct. 1529 (1996).

Local Government and State Dislocated Worker Unit

Separate notices are required to the state dislocated worker unit and to the chief elected official of the unit of local government in which the site of employment is located.

All 50 states, plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, have designated dislocated worker units to receive WARN notices. The addresses of the state dislocated worker unit will change from time to time as state governments reorganize or redistribute responsibilities. Therefore, whenever notices are prepared, it is important to verify the correct contact information in effect. A good starting point for locating the current dislocated worker unit is the USDOL’s website at www.dol.gov/agencies/eta/layoffs. Beginning with this information, it is prudent to place a call and verify accuracy. (There is no requirement to identify the employer or the site during such a call.)

Notice is also required for the “chief elected official of the unit of local government.” 29 U.S.C. §2102(a)(2). The “unit of local government” means “any general purpose political subdivision of a State, which has the power to levy taxes and spend funds and which also has general corporate and police powers.” 20 C.F.R. §639.3(g). The typical local government unit is a city or a county. When there are overlapping local government units with respect to an employment site, the WARN Act provides that “the unit of local government which the employer shall notify is the unit of local government to which the employer pays the highest taxes for the year preceding the year for which the determination is made.” 29 U.S.C. §2102(a). See also 20 C.F.R. §639.3(g). In practice, many employers choose to notify all units of local government rather than determine which unit was paid the most taxes.

A question may arise as to which office is the chief elected official. In many forms of municipal government, the answer is clearly a mayor. In other forms of municipal government, however, there may be only a nonelected manager. Similarly, in some forms of county government, the elected governing body is a board or panel of commissioners rather than a chief official. In recognition of this problem, the regulations state: “The identity of the chief elected official will vary according to the local government structure. In the case of elected boards, the notice is to be served upon the board’s chairperson.” 20 C.F.R. §639.6(d). Again, it is frequently necessary to make inquiries in advance in order to confirm the proper address for the local government notice.

Darren M. Mungerson, Robbins Schwartz, Chicago

Darren M. Mungerson is a Shareholder with Littler Mendelson, P.C., in Chicago, where he focuses his practice on labor and employment law. Mungerson is a member of the Labor and Employment Sections of both the Illinois State and American Bar Associations. He has been named one of the Best Lawyers in America from 2021 to 2025. He received his BS with Bronze Tablet (highest honors) from the University of Illinois Urbana-Champaign and his JD cum laude from Harvard Law School.

Appointment of Supreme Court Rule 215 Psychological Evaluation and Indefinite Suspension of Parenting Time Upheld

In a contentious dissolution of marriage case involving contested parenting issues regarding three minor children, the trial court ordered the self-represented respondent to undergo a S.Ct. Rule 215 psychological examination, but the respondent refused. Throughout the proceedings in In re Marriage of Neal, 2025 IL App (3d) 250101-U, the respondent alleged a widespread conspiracy between the court, guardian ad litem, evaluators, and school officials to conceal abuse by the petitioner. The respondent’s accusations included inflammatory emails and conduct directed at school staff, maintaining a public website enumerating the respondent’s accusations, and attaching inappropriate photos of a child to pleadings, among other things. Repeated investigations by state and regulatory agencies, including the Illinois Department of Children and Family Services, found the respondent’s abuse claims to be unfounded. After the respondent continued to refuse to cooperate with court-ordered psychological evaluations, the trial court found the respondent’s conduct seriously endangered the children and suspended parenting time pending completion of the Rule 215 examination. The appellate court affirmed, holding that the respondent’s mental condition was clearly “in controversy,” that the Rule 215 order complied with all procedural requirements, and that indefinitely suspending parenting time until completion of the examination was a proper protective measure, not a punitive sanction.

Trial court reversed for granting motion to dismiss petition to increase child support

In In re Marriage of Ito, 2025 IL App (3d) 240641-U, the trial court dismissed the mother’s petition to increase child support. The language in the parties’ marital settlement agreement imputed the mother’s income at $60,000 per year even though she was actually unemployed and receiving disability benefits. Later, after the trial court entered a judgment for dissolution, the mother alleged that the disability benefits were terminated and she was living on $2,800 per month in unemployment income. The appellate court reversed the trial court’s dismissal of the petition to increase support, holding that the trial court improperly addressed the merits of the mother’s underlying case instead of evaluating the sufficiency of the petition filed. The mother’s allegations of a worsened financial condition since the entry of judgment stated a potential basis for modification under §510 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq.

Motion to allocate children’s expenses characterized as motion to modify support

In a post-judgment matter in In re Marriage of Kinsella, 2025 IL App (3d) 240144-U, the trial court denied the father’s motion to modify support and granted the mother’s motion to set child-related expenses. The trial court’s judgment, which was entered after a contested trial, ordered the father to pay child support, but it did not allocate between the parties certain future expenses for the children, including health insurance premiums and medical and school expenses. The appellate court affirmed the denial of the father’s motion to modify child support since the evidence showed the father’s income had not necessarily decreased, his accountant’s testimony did not show otherwise, and his testimony as to his income was not credible. The appellate court found the trial court abused its discretion in granting the mother’s motion to set child-related expenses because the trial court did not treat it as a motion to modify child support pursuant to §510 of the IMDMA and the mother did not prove that there was a substantial change of circumstances. However, while the appellate court vacated the portion of the trial court’s order requiring the father to pay 65 percent of the children’s school expenses, it upheld the allocation to the father of 65 percent of their medical expenses. 2025 IL App (3d) 240144-U at ¶¶39 – 40.

Trial court’s denial of motion to restrict parenting time upheld

Upon the mother’s appeal of the trial court’s judgment for dissolution of marriage in In re Marriage of Werhun, 2025 IL App (3d) 250201-U, the appellate court upheld the denial of the mother’s request to restrict the father’s parenting time, finding no evidence that his past alcohol use or mental health issues “seriously endangered” the child. At a hearing before the trial court, both the GALand the evaluator appointed under §604.10 of the IMDMA testified that the father posed no risk to the child. The appellate court also upheld the trial court’s finding that the father was not cohabitating with his girlfriend. However, the appellate court did find the trial court abused its discretion by failing to impute income to father, who was voluntarily underemployed, and the appellate court remanded the case for recalculation of maintenance.

For more information about family law, see ADOPTION LAW (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

In McDonald v. Board of Trustees of Village of Maywood, 2025 IL App (1st) 231616, the Illinois Appellate Court for the First District affirmed the decision of the circuit court, upholding the Village of Maywood’s Board of Police and Fire Commissioners’ termination of a police officer “for cause” following his arrest for domestic battery, even though the officer was found not guilty of the underlying charges. Relying on principles of administrative deference, the appellate court found that there was sufficient evidence in the record independent of the criminal charges to support the officer’s termination.

In 2021, Village of Maywood police officer Darrell McDonald was arrested and charged with domestic battery. 2025 IL App (1st) 231616 at ¶1. Following the arrest, the village’s police chief filed charges of termination against McDonald. Id. In lieu of arbitration, McDonald elected to have a hearing before the Village’s Board of Police and Fire Commissioners. Id.

The 2021 arrest was not McDonald’s only infraction while employed with the village’s police department. 2025 IL App (1st) 231616 at ¶7. In 2014, McDonald had been terminated following an incident related to an off-duty domestic battery but was ultimately reinstated. Id. In 2017, McDonald received a 3-day suspension for insubordination. Id. In 2019, McDonald was suspended for a total of 16 days pursuant to two separate settlement agreements. Id. In 2020, McDonald received a 20-day suspension following an off-duty arrest for driving under the influence. Id. He was placed on 12 months’ probation, which he was still subject to at the time of his 2021 arrest for domestic battery. See 2025 IL App (1st) 231616 at ¶¶9,12.

At the hearing before the board, the police chief requested summary termination based on McDonald’s violation of the terms of the 2020 settlement agreement and McDonald’s probationary status. 2025 IL App (1st) 231616 at ¶12. Following a five-day bifurcated hearing, the board ruled that there was sufficient cause to warrant McDonald’s immediate termination. 2025 IL App (1st) 231616 at ¶97.

In McDonald’s complaint for administrative review, he alleged that the board lacked jurisdiction and legal authority over his termination. 2025 IL App (1st) 231616 at ¶101. He also asserted that the board’s decision was against the manifest weight of the evidence, was arbitrary and capricious, and legally erroneous. Id. The circuit court affirmed the board’s decision, and McDonald appealed. 2025 IL App (1st) 231616 at ¶102.

Jurisdictional Challenge

McDonald’s jurisdictional challenge was based on his claim that the board was divested of jurisdiction over his termination because the board did not strictly follow certain procedures set forth in the governing collective-bargaining agreement. 2025 IL App (1st) 231616 at ¶115. McDonald further asserted that the collective bargaining agreement’s procedures superseded any statutory processes. 2025 IL App (1st) 231616 at ¶115. In response, the village argued that the board’s jurisdiction was derived from state statute, which could not be abrogated by a collective-bargaining agreement. 2025 IL App (1st) 231616 at ¶116. Rather, the village noted that any procedural challenges related to the collective-bargaining agreement should be adjudicated through the grievance procedure. Id.

Upon review of the matter, the appellate court determined that McDonald was confounding the legal principle of subject-matter jurisdiction with contractual adherence to a collective-bargaining agreement. 2025 IL App (1st) 231616 at ¶118. Quoting §10-2.1-17 of the Illinois Municipal Code (65 ILCS 5/10-2.1-17), the appellate court established that “the Board is empowered to preside over disciplinary actions for removal or discharge” and that such hearings “are to be provided as set forth in statute, unless the employer and union representing the individual ‘have negotiated an alternate or supplemental form of due process.’ ” 2025 IL App (1st) 231616 at ¶120.

The appellate court identified that the statute provides a 30-day timeframe for the board to commence the hearing. 2025 IL App (1st) 231616 at ¶120. Accordingly, the appellate court determined that the only way that the board’s jurisdiction could be divested would be if it failed to commence the hearing within the statute’s 30-day timeframe. 2025 IL App (1st) 231616 at ¶121. The appellate court disagreed with McDonald’s assertion that failing to abide by the collective-bargaining agreement’s procedural requirements would strip the board of jurisdiction over the matter. 2025 IL App (1st) 231616 at ¶123. The appellate court noted that a collective-bargaining agreement “could not trump the Board’s ability to investigate and adjudicate potential misconduct” and determined that the Board retained jurisdiction under state statute, notwithstanding any deviations from the contractual provisions of the collective bargaining agreement. 2025 IL App (1st) 231616 at ¶124, quoting Scatchell v. Board of Fire and Police Commissioners for Village of Melrose Park, 2022 IL App (1st) 201361, ¶103, 213 N.E.3d 446, 464 Ill.Dec. 409.

Impartiality of Hearing

McDonald also alleged that the board was unfairly biased against him, as demonstrated by a single communication between his counsel and the hearing officer during the standard of proof ruling whereby the hearing officer’s finding regarding the applicability of the clear and convincing standard was interpreted as the hearing officer’s finding that the standard had been satisfied. 2025 IL App (1st) 231616 at ¶129. The appellate court relied on the principle that “[a]t minimum, a ‘fair hearing before an administrative agency includes the opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in ruling upon the evidence.’” 2025 IL App (1st) 231616 at ¶130, quoting Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 606 N.E.2d 1111, 1120, 180 Ill.Dec. 34 (1992). Upon an examination of the record, the appellate court did not find any evidence of partiality during the hearing before the board and found the contention that the hearing officer’s misstatement could be characterized as such to be “meritless.” 2025 IL App (1st) 231616 at ¶132.

Burden of Proof

McDonald’s third challenge pertained to the Board’s application of the preponderance of the evidence standard, arguing that the clear and convincing standard should have been used uniformly for all charges against him. 2025 IL App (1st) 231616 at ¶135. Relying on Wilkey vs. Illinois Racing Board, 65 Ill.App.3d 534, 381 N.E.2d 1380, 21 Ill.Dec. 695 (1st Dist. 1978), McDonald noted that although a civil proceeding, the underlying charges against him giving rise to the action were criminal in nature and therefore a heightened burden of proof was required. Id. The village refuted McDonald’s contention, noting that the preponderance of evidence standard was appropriate for the noncriminal charges, which were premised on McDonald’s unprofessional conduct and violation of department policy, not the criminal charges. 2025 IL App (1st) 231616 at ¶136. The village further noted that it invoked a more stringent burden of proof standard to one of the charges that was required and therefore committed no error. Id.

The appellate court agreed with the village and noted that McDonald’s citation to Wilkey was inapplicable, as the subsequent Illinois Supreme Court case Board of Education of City of Chicago v. State Board of Education, 113 Ill.2d 173, 497 N.E.2d 984, 100 Ill.Dec. 715 (1986), was the superseding authority for establishing burdens of proof in administrative review cases. 2025 IL App (1st) 231616 at ¶138. It further noted that the preponderance of the evidence standard was “sufficient to protect a police officer’s position, even when criminal conduct is alleged” and “given that the Board applied the higher clear and convincing evidence standard to the violation of laws charge . . . any error in the Board’s burden of proof determination in this case was harmless.” 2025 IL App (1st) 231616 at ¶140.

Cause vs. Just Cause

McDonald asserted that the board also erred by applying a “cause” standard to his termination proceeding rather than a “just cause” standard, as referenced in the collective-bargaining agreement. 2025 IL App (1st) 231616 at ¶142. The village challenged McDonald’s interpretation, noting the collective-bargaining agreement required that “cause” be found, and that the language of the collective-bargaining agreement expressly incorporated the Illinois Municipal Code’s standard of “for cause.” Id. The appellate court noted that even though the parties had used “cause” and “just cause” interchangeably throughout the proceedings, the “just cause” provisions in the collective-bargaining agreement were only applicable to proceedings before an arbitrator, not proceedings before the board. 2025 IL App (1st) 231616 at ¶143. As there was no dispute that McDonald had elected to proceed with a hearing before the Board, the “cause” standard was proper. Id.

Against Manifest Weight of Evidence

McDonald also argued that the board’s findings were against the manifest weight of the evidence because they relied exclusively on inadmissible hearsay. 2025 IL App (1st) 231616 at ¶147. The village contended that the evidence utilized was admissible and that there was sufficient evidence of guilt, both through the recordings that were admitted and on another officer’s independent observations at the scene. 2025 IL App (1st) 231616 at ¶148. The village further noted that Administrative Review Law permits the reversal of an agency’s decision on evidence only if there was material error that affected the rights of the parties and caused a substantial injustice. The appellate court did not opine on the admissibility of the evidence but agreed with the village in that “technical errors in administrative proceedings . . . are insufficient to reverse a decision ‘unless it appears to the [appellate] court that such error or failure materially affected the rights of any party and resulted in a substantial injustice.’ ” 2025 IL App (1st) 231616 at ¶151, quoting 735 ILCS 5/3-111(b). In addition, the appellate court did not believe that the finding of guilt was against the manifest weight of the evidence, as the board’s findings were supported in the record and based on express departmental rules of conduct. 2025 IL App (1st) 231616 at ¶152.

Cause for Termination

McDonald’s final challenge was that the record did not support his termination under any “cause” standard, regardless of whether the standard was “for cause” or “just cause”. 2025 IL App (1st) 231616 at ¶157. In addition, McDonald contended that his arrest was an illegal basis for adverse employment action under the Illinois Human Rights Act (775 ILCS 5/2-103(A)). Id. The village refuted McDonald’s claims, explaining that the arrest was not the sole basis for McDonald’s termination, rather that McDonald had a long-standing history of discipline and had repeatedly demonstrated his inability to exercise sound judgment during his tenure as a police officer with the village. 2025 IL App (1st) 231616 at ¶158.

Evaluating McDonald’s claim, the appellate court noted that, although “[d]eterminations of cause for discharge are not prima facie correct and are subject to judicial review . . . ‘[a]n administrative tribunal’s finding of cause for discharge commands respect, and it is to be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of service.’ ” 2025 IL App (1st) 231616 at ¶159, quoting McCleary v. Board of Fire & Police Commission of City of Woodstock, 251 Ill.App.3d 988, 622 N.E.2d 1257, 1265, 190 Ill.Dec. 940 (2d Dist. 1993). Citing Valio v. Board of Fire and Police Commissioners of Itasca, 311 Ill. App. 3d 321, 330-41 (2000), the appellate court further affirmed that“the decision to terminate is given substantial deference as the Board, not the reviewing court, stands in the best position to determine the effect of an officer’s conduct on the department.” 2025 IL App (1st) 231616 at ¶15. Looking beyond the criminal charges and to McDonald’s demonstrated lack of trustworthiness, reliability, good judgment, and integrity, the appellate court found that the board’s determination was appropriate and not against the manifest weight of the evidence.

For more information about government law, see SUNSHINE LAWS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove

Laura M. Julien is a partner with Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C. in Sugar Grove, Illinois, where she concentrates her practice in municipal law, school law, corporate law, and real estate matters. She is a member of the Illinois State Bar Association, Kane County Bar Association, State Bar of Wisconsin, National Council of School Attorneys, Illinois Local Government Lawyers Association, and Illinois Council of School Attorneys. She is also a recurrent presenter with the National Business Institute. Julien earned her undergraduate, with honors, from the University of Wisconsin and her J.D. degree from the University of Notre Dame Law School.

Lauren Adams (Adams) rented a room in Nima Sadeghi’s (Sadeghi) condominium. Adams v. Sadeghi, 2025 IL App (1st) 242457-U, ¶1. A year into her lease, Sadeghi notified Adams that she had a month to vacate the unit, then changed the locks before the month was up, preventing Adams from accessing the condominium until her roommate gave her a new set of keys. Id. When Adams did not leave, Sadeghi obtained an emergency order of protection, claiming she and her roommate threatened to harm him and set fire to the condominium. Adams denied the allegations but agreed to move out, and Sadeghi voluntarily withdrew his request. Id.

Subsequently, Adams sued Sadeghi, alleging, in part, violations of the Chicago Residential Landlord Tenant Ordinance (RLTO) by failing to provide her with a written summary of the ordinance, by improperly locking her out of the condominium, and by seeking an order of protection under false pretenses. 2025 IL App (1st) 242457-U at ¶¶3, 13. In response, Sadeghi filed an affirmative defense alleging that he lived in the condominium and, therefore, the RLTO did not apply, as well as two counterclaims for unpaid rent. Id. Sadeghi withdrew the affirmative defense before trial after admitting that he falsely had claimed to have lived in the unit. 2025 IL App (1st) 242457-U at ¶14.

The trial court conducted a bench trial. 2025 IL App (1st) 242457-U at ¶4. In his testimony, Sadeghi acknowledged a history of accepting various amounts of rent during the tenancy but denied that he had provided any rent credits or waived late fees for Adams for work she performed for him, such as screening tenants and letting repair people into the unit. 2025 IL App (1st) 242457-U at ¶¶9 –10, 14 – 17, 21 – 22. Sadeghi also testified that he served a 30-day termination notice on Adams because she was “severely late” in paying her rent, while Adams testified that Sadeghi had insisted that she not pay rent for that same period of time so he could qualify for a Covid-related rental assistance grant and that he only served the notice on her once his grant was denied. 2025 IL App (1st) 242457-U at ¶¶9 – 10, 18. Before the 30-day period expired, Sadeghi changed the locks of the unit while Adams was in class. 2025 IL App (1st) 242457-U at ¶24. When Adams still refused to move out, he obtained an emergency order of protection granting him exclusive possession of the unit, falsely claiming that he lived in the unit and that Adams had threatened to kill or injure him and burn down the building. 2025 IL App (1st) 242457-U at ¶¶12, 19. Sadeghi also acknowledged that he understood that by obtaining the order of protection he could circumvent the need to file a potentially lengthy eviction proceeding against her. 2025 IL App (1st) 242457-U at ¶19. Adams denied making any threats to Sadeghi. 2025 IL App (1st) 242457-U at ¶25.

Ultimately, the trial court entered judgment for Adams on Sadeghi’s counterclaims for past rent due and ruled in her favor on her RLTO claims, awarding her a total of $1,350, as per the RLTO damages provisions. 2025 IL App (1st) 242457-U at ¶¶3, 30 – 31. The court also allowed Adams to file a petition for attorneys’ fees. Id. After some reductions, the trial court awarded Adams $50,023 in fees, costs, and expenses. 2025 IL App (1st) 242457-U at ¶¶5, 33. Sadeghi filed a motion to reconsider, which the trial court denied. 2025 IL App (1st) 242457-U at ¶33. A timely appeal followed.

Appellate Court

The appellate court affirmed the trial court’s decisions, reviewing the bench trial proceedings under a manifest weight of the evidence standard and the fee petition decision under an abuse of discretion standard. 2025 IL App (1st) 242457-U at ¶¶37 – 38. With respect to Sadeghi’s rent claims, while recognizing the parties’ conflicting testimony, the appellate court held that the trial court was in a superior position to assess the witnesses’ credibility; they found Adams more credible and found no evidence that this decision was against the manifest weight of the evidence. 2025 IL App (1st) 242457-U at ¶¶41 – 43.

With respect to Adams’ claims under the RLTO, the appellate court noted that Sadeghi did not dispute that he changed the locks on her. 2025 IL App (1st) 242457-U at ¶47. While she was able to gain reentry through her roommate, the fact that Sadeghi attempted to oust her from the unit by changing the locks was sufficient to establish a violation of the RLTO, and actual ouster or ouster eviction from the unit was not required to state a claim. 2025 IL App (1st) 242457-U at ¶¶46 – 47. Accordingly, the trial court’s finding that Sadeghi violated the RLTO and its award of two times Adams’ monthly rent (as required by the ordinance) was not against the manifest weight of the evidence. Id.

Similarly, as the ordinance expressly requires landlords to provide a copy of the Commissioner of Housing’s summary of the RLTO to tenants, regardless of whether there is a written or oral lease, and Sadeghi did not dispute that he failed to provide Adams with the summary, the trial court’s award of $200 also was not against the manifest weight of the evidence. 2025 IL App (1st) 242457-U at ¶¶50 – 52.

Finally, Sadeghi contended that the trial court abused its discretion by awarding Adams $50,023 due to opposing counsel’s alleged improper billing practices and because the fees, costs, and expenses awarded were grossly disproportionate to the $1,350 awarded for Adams’ successful claims. 2025 IL App (1st) 242457-U at ¶54. Again, the appellate court deferred to the trial court’s discretion, as the lower court was familiar with the lengthy proceedings, including the work required of Adams’ counsel, and the documentation for the fee petition. 2025 IL App (1st) 242457-U at ¶¶56 – 57. Accordingly, the appellate court found the trial court’s decision was reasonable and that Sadeghi had failed to establish an abuse of discretion. Id.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

In Ramirez v. Illinois Workers’ Compensation Commission, 2025 IL App (1st) 242467WC, the appellate court addressed two key evidentiary issues of great practical importance for practitioners: (1) the foundation required for business-records evidence used to establish a claimant’s average weekly wage (AWW), and (2) the proper use of post-injury drug test reports in assessing whether an employer’s delay or denial of benefits justifies penalties under the Illinois Workers’ Compensation Act, 820 ILCS 305/1, et seq.

As practitioners, this case offers useful reminders: do not assume admissibility of records without foundation; be cautious in relying on positive drug tests absent compliance with statutory protocols; and ensure that the record supports a “reasonable basis” for denial or delay of benefits before contesting penalties. 2025 IL App (1st) 242467WC at ¶30.

Relevant Facts

The facts are relatively straightforward. The claimant, Daniel Ramirez, was employed by Mighty Moving, Inc. beginning late February/early March 2022, working as a truck driver/furniture mover. On March 24, 2022, while carrying boxes down stairs, he slipped and fractured his right ankle (requiring surgery).

After the injury, the claimant called his supervisor to arrange hospital transport; the supervisor refused and instructed him to arrange his own transportation. Before going to the immediate-care/hospital facility, the supervisor instructed the claimant to submit to a drug test. The test returned “positive” for marijuana. The claimant testified he did not use marijuana or other illicit substances on March 24, 2022, though he admitted to possessing a medical-marijuana card and using marijuana on March 23.

As to his wages and the AWW: the claimant testified that he worked full-time from early March up to the injury — often 8 – 12 hours per day starting at about 7 or 8 a.m., finishing between 5 – 9 p.m., and being paid $21/hour via direct‐deposit. He claimed more than two deposits, but bank records admitted as his own Exhibit 14 showed only two deposits: $650.03 (March 17) and $323.24 (March 31).

At arbitration (Feb. 3, 2024), the claimant testified; he was the only witness. The respondents offered several exhibits: RX1: personnel file (objection: hearsay); RX2: payroll records (objection: hearsay and lack of foundation); RX3: subpoena response from drug test facility (objection: hearsay and non-statutory compliance); and RX5: drug test report (same objection).

The arbitrator found:

1. The injury arose out of and in the course of employment; the intoxication defense was rejected (despite positive test) because the employer’s exhibits (RX1, RX3, RX5) were excluded; claimant testified credibly that he was not intoxicated at time of injury.
2. The AWW was determined at $412.50 (respondents’ figure), despite claimant’s position of $840; the arbitrator accepted RX2 to the extent that it showed an hourly rate of $22 and hours worked and bank records consistent therewith.
3. The claimant was entitled to temporary total disability (TTD) benefits at $275/week for 53 4/7 weeks (March 25, 2022 – April 3, 2023).
4. Medical expenses of about $37,669.93 were awarded (including future work-conditioning).
5. Penalties (under 820 ILCS 305/19(l)) and fees (under §§16 and 19(k)) were assessed because respondents delayed or withheld payment without adequate justification.

The Commission then modified the award: it affirmed in large part but (1) recalculated TTD benefits by raising the minimum statutory rate from $275 to $320/week (and adjusting credits for payments already made) and (2) reversed the arbitrator’s award of penalties and attorneys’ fees, finding that the respondents had a reasonable basis to delay/suspend benefits given the positive drug test.

On judicial review, the circuit court confirmed the Commission’s decision. The claimant then appealed to the appellate court.

Issues and Holdings

The appellate court framed two principal issues:

1. Whether the Commission erred in admitting RX2 (payroll records) and relying on them to determine the claimant’s AWW.
• Holding: Yes, the court found the records were improperly admitted because no witness laid the required foundation under the business-records exception (S.Ct. Rule 236(a), Ill.R.Evid. 803(8)(B)). The respondents presented only a lawyer’s argument, not testimony from a records custodian or business-familiar person.
• Because the AWW finding was central and was based on the inadmissible records, the portion of the Commission decision on AWW and TTD benefits was reversed and remanded.
2. Whether the Commission erred in considering the drug-test reports (RX1, RX3, RX5) for assessing the reasonableness of the respondents’ delay/denial of benefits (i.e., penalties and fees under §§16, 19(k), and 19(l)).
• Holding: The court held that it was proper for the Commission to admit the drug test reports for the limited purpose of assessing whether the employer had a reasonable basis to delay or suspend payments (i.e., reasonableness of employer conduct) even though the reports did not comply with the statutory requirements of §11 (and thus were not admissible for the truth of intoxication).
• However, the court held that the Commission’s reversal of the penalty/fee award was against the manifest weight of the evidence. A mere positive drug test (without quantity/concentration, absence of expert testimony, and no eyewitness signs of intoxication) was insufficient to show a reasonable basis for denial or delay.

Takeaways

While Ramirez does not alter major doctrinal rules, it provides important refinements and reminders.

Business records foundational discipline. The decision emphasizes that even in workers’ compensation proceedings, documents are not automatically admissible under the business-records exception. A custodian or other qualified witness must testify to the regular-course-of-business origin, timing, and completeness of the records.

Use of drug test result to deny benefits under §11. If you intend to rely on a drug test result for denying benefits under §11 (intoxication defense), ensure it meets the statutory test requirements (e.g., chain of custody, testing protocols, concentration values, qualified medical/forensic opinion) and is admitted for truth of intoxication. In Ramirez, the test did not meet statutory requirements; hence it could not be used to deny benefits.

Use of drug test evidence in penalty/fee cases. Ramirez clarifies that while a drug test result that does not meet the statutorily required protocols cannot be used to show intoxication (and thus bar benefits under §11), the employer may be permitted to use that result for another purpose — namely as part of its justification for delaying or denying benefits and thereby avoiding mandatory penalties (under §19(l)) or discretionary fees (under §§16, 19(k)). This echoes the principle that admissibility can depend on the purpose for which the evidence is offered.

Limits on reasonable basis for delay/denial. Even if an employer has some piece of evidence, it must rise to the level of a reasonable belief (not merely speculative) that benefits should be withheld. A lone positive drug test, without evidence of concentration/impairment, witness testimony, or expert analysis, was held insufficient in Ramirez. The defense must gather corroborating facts.

Ramirez underscores that procedural discipline and evidentiary rigor remain essential in workers’ compensation litigation. Although these proceedings are designed to be informal, the appellate court reaffirmed that the basic rules of evidence — particularly regarding business records and the purposes for which documents may be admitted — still apply.

For practitioners, Ramirez is a reminder that the outcome of a claim often turns not on the substantive merits, but on the admissibility and credibility of proof. Payroll documents must be properly authenticated through a competent witness; positive drug tests must be supported by statutory compliance or contextual evidence before being relied on to deny benefits; and when delaying or suspending benefits, the record must clearly show a reasonable, fact-based justification to avoid penalties. In short, Ramirez reinforces a simple but vital lesson for Illinois practitioners: strong facts matter, but strong foundations win cases.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Jigar S. Desai

Jigar S. Desai is a Partner with Rusin Law Ltd, where he concentrates his practice in workers’ compensation and employment law. Recognized for his outstanding contributions to the legal field, Desai has been named a Rising Star by Super Lawyers from 2016 to 2018 and a Law Bulletin Emerging Lawyer from 2016 to 2019. He is a member of the Board of Directors at Rusin Law Ltd, and a member of the Chicago and Illinois Bar Associations. Desai received his B.A. from the University of Iowa and his J.D. from Chicago-Kent College of Law. While at Chicago-Kent, he was honored on the Dean’s Honor List for five out of six semesters and received the Honorable Edmund W. Burke Award for Excellence in Forensic Oratory as a Senior Associate of the Moot Court Honor Society.