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Case 3:09-cv-00133-DRH-PMF Document 90 Filed 06/30/11 Page 1 of 14 Page ID #1039

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

-vs-

ILLINOIS DEPARTMENT
OF CORRECTIONS,

Defendant.

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No. 09-133-DRH

DEFENDANT’S RESPONSE TO PLAINTIFF’S

MOTION FOR JUDGMENT NOTWITHSTANDING

THE VERDICT OR A NEW TRIAL

NOW COMES the defendant, Illinois Department of Corrections, by and through its counsel,

Lisa Madigan, Illinois Attorney General for the State of Illinois, and in response to Plaintiff’s

Motion for Judgment Notwithstanding the Verdict or a New Trial states as follows:

I. INTRODUCTION

On May 23, 2011, Plaintiff proceeded to trial on her claims of age discrimination and

constructive discharge. Per the parties’ final pre-trial order the following were the allegations of age

discrimination at issue: (A) whether but for her age, Plaintiff would have been promoted by the

Department to Correctional Counselor III; (B) whether but for her age, Plaintiff would have received

Correctional Counselor III pay for her counselor duties at Centralia; (C) whether but for her age,

Plaintiff would have been disciplined for the March 19, 2007 C.H.A.M.P.S. entry regarding inmate

Cobb; (D) whether but for her age, Plaintiff would have been disciplined for the April 2007 failure

to make inmate contacts within 90 days; (E) whether but for her age, Plaintiff would have been

disciplined for the April 24, 2007 approval of the visitor list for inmate Williams; (F) whether but

for her age, Plaintiff would have been disciplined for the June 7, 2007 email from Plaintiff to Deb

Case 3:09-cv-00133-DRH-PMF Document 90 Filed 06/30/11 Page 2 of 14 Page ID #1040

Gordon in Springfield; (G) whether but for her age, the Department denied Plaintiff pay for her 2007

leave of absence. Per the parties’ final pre-trial order the following was the only allegation of

constructive discharge due to age at issue: (A) whether but for her age, Plaintiff would have been

forced to retire in May 2008. At the close of the Plaintiff’s case in chief on May 26, 2011, the

Defendant moved this court for a directed verdict. Defendant’s motion was denied. Defendant

renewed its motion on May 27, 2011 at the close of all of the evidence and submitted a written

memorandum in support of its Motion on May 30, 2011. That motion was also denied. On May 31,

2011 the case was handed over to the jury and a verdict in favor of the Defendant was returned on

all of the charges. On June 10, 2011 Plaintiff filed a Motion for Judgment Notwithstanding the

Verdict or a New Trial. For the reasons set forth herein, Plaintiff’s motions should be denied.

A.

JUDGMENT NOTWITHSTANDING THE VERDICT

II. ARGUMENT

Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, “[i]f the court does not grant

judgment as a matter of law made under Rule 50(a) . . . the movant may file a renewed motion” no

later than 28 days after the jury was discharged. “In ruling on a renewed motion, the court may .

. . direct the entry of judgment as a matter of law.” See Federal Rule of Civil Procedure Rule

50(b)(3). Judgment as a matter of law is appropriate after trial as “‘a last chance to correct . . . error

without delay, expense, or other hardships of an appeal.’”

In deciding a motion for judgment as a matter of law, the Court should look whether the

“facts as shown by the record, required submission of the case to the jury.” McKay v. Upson-Walton

Co., 317 F.2d 286, 828 (7 Cir. 1963). After the nonmoving party has been fully heard on an issue,

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if there is no legally sufficient evidentiary basis for a reasonable jury to find for that nonmoving

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party, judgment as a matter of law should be granted in favor of the movant. Houskins v. Sheahan,

549 F.3d 480, 489 (7 Cir. 2009), citing Winters v. Fru-Con, Inc., 498 F.3d 734, 745-46 (7 Cir.

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2007). The evidence presented and all reasonable inferences therefrom should be viewed in the light

most favorable to the nonmoving party. Susan Wakeen Doll Co. v. Ashton-Drake Galleries, 272

F.3d 441, 449 (7 Cir. 2001).

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This is the first time Plaintiff has presented a Rule 50 motion, there was no Rule 50(a)

motion made by Plaintiff, and Plaintiff’s motion cites to no facts which support her motion nor is

there any argument. At bottom, Plaintiff’s motion simply recites the standard for judgment

notwithstanding the verdict. Even so, for the reasons set forth in the Defendants Rule 50 motions,

judgment in favor of Defendant is reasonable and the jury’s verdict should stand as entered. Those

arguments are fully set forth in Defendant’s Rule 50 motions, and due to the brevity of this issue in

Plaintiff’s current motion, the Defendant will not burden the Court’s record with duplicative

arguments. However, those arguments are incorporated fully herein, and as a brief synopsis the

Defendant provides the following.

Plaintiff failed to prove that the Department was behind Plaintiff not receiving pay for her

2007 leave of absence. The Plaintiff also failed to prove that the Department failed to promote

Plaintiff to Counselor III, or pay her at that rate, because of her age. Indeed, the evidence on this

issue was that the Counselor III position had not been allotted at Centralia since 2005. Given the

evidence no reasonable jury could have found for Plaintiff on the leave of absence and counselor III

issues.

Plaintiff also failed to provide any direct evidence of discrimination. At bottom, Plaintiff

proved that Ann Casey made two (2) isolated comments which amounted to nothing more than “when

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are you going to retire?” Plaintiff presented no evidence of any statements by Wardens Robert and

Bates. Isolated comments about retirement are not direct evidence of age discrimination, and there was

nothing to suggest that these comments were pervasive or that they occurred more than twice. As

such, no reasonable jury could find that these comments sufficient to show any motive on the part of

Ms. Casey, or the Department, and the jury’s verdict is reasonable.

With respect to Plaintiff’s dicipline, she first failed to prove that she was meeting the legitimate

expectations of her employer. In addition, Plaintiff presented no reliable evidence of any similarly

situated person who was treated more favorably. Specifically, there was no evidence that any other

counselor made a C.H.A.M.P.S. entry akin to Plaintiff (or even used profanity in C.H.A.M.P.S.), there

was no evidence of any other counselors missing their 90-day contacts, there was no evidence of any

other counselor who was outside the protected class and approved an inmate visitor list with a victim

on it (evidence was presented that Deb Brink did this, but Ms. Brink was the same age as Plaintiff and

was not disciplined), there was no evidence of any other counselor who was outside the protected class

and called Springfield to make changes in C.H.A.M.P.S. (again, Plaintiff presented evidence that Ms.

Brink and Ms. Landreth did this, but they were both the same age or older than Plaintiff), and there was

no evidence of any other counselor who attempted to make a false report. In addition, Plaintiff has

presented no evidence that the Department’s actions were motivated by her seniority. More

importantly, no reasonable jury could find that seniority was used by the Department as a proxy for

age, as the evidence showed that seniority has only to do with years of service. As such, no reasonable

jury could find that Ms. Casey’s actions were because of age.

With respect to Plaintiff’s constructive discharge claim, Plaintiff presented no evidence,

aside from the one alleged conversation with Warden Bates in May 2008, of a single complained

of event after November 2007. Plaintiff had no contact with Ann Casey after July 2007. Plaintiff

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further admitted she had no issues with Warden Bates, or anyone else at the Department, from the

time she returned from leave in November 2007 until six months later when she had the alleged

conversation with Warden Bates in May 2008. Even taking the facts in the light most favorable to

the Plaintiff and assuming the conversation with Warden Bates took place, this conversation does

not prove constructive discharge. This conversation did not, under any standard, cause Plaintiff’s

work conditions to be unbearable. Indeed, Plaintiff’s work assignment never did change. Therefore,

the Plaintiff failed to prove that her working conditions were unbearable and no reasonable jury

could find that the Department made Plaintiff’s work environment intolerable because of her age.

B.

MOTION FOR A NEW TRIAL

A new trial is warranted only if “the verdict is against the weight of the evidence, the damages

are excessive, or if for other reasons the trial was not fair to the moving party.” Pickett v. Sheridan

Health Care Center, 610 F.3d 434, 440 (7th Cir. 2010) (citations omitted). A jury verdict will be

upheld as long as a reasonable basis exists in the record to support this verdict. Id.

1.

The jury instructions were not confusing or misleading.

Plaintiff states, without reiterating any specific objections, that her objections to the jury

instructions warrant a new trial. In addition to the general objection, Plaintiff states that the verdict

forms were confusing and that the use of the term “over the age of forty years” was misleading. First,

the jury instructions were, by and large, form ADEA instructions from the Seventh Circuit. To the

extent there were additional instructions added, those instructions were based on the applicable and

current ADEA caselaw. The use of the term “over the age of forty years” is nothing more than a

definition of the applicable class. There is nothing misleading about this term – it is the definition of

the class for age discrimination cases. To the extent that Plaintiff wanted a different definition of the

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class, there was no such instruction submitted by the Plaintiff on this issue. As such, the jury

instructions were an accurate reflection of the law, were not misleading, and Plaintiff’s motion should

be denied.

With respect to the verdict forms, the redundant language about which Plaintiff complains was

nothing more than a recitation of what charge the jury was deciding. This was not misleading, indeed,

if anything it made the issues more clear for the jury. Moreover, the inclusion of the determination of

willfulness was not misleading. The form clearly gave the jury two alternatives regarding willfulness

– there were two checkmark spaces on those forms. There was nothing to suggest, as Plaintiff now

argues, that the jury had to find the conduct willful in order to enter judgment in Plaintiff’s favor.

Indeed, the form made clear a finding could be for Plaintiff with either a checkmark for willful or one

for not willful. In addition, there were several jury instructions which explained the applicable

standard and considerations for willfulness. Plaintiff states that her verdict forms, which simply said

judgment is in favor of Plaintiff/Defendant were more appropriate. In a case such as this, where there

are multiple counts and several distinct actions within each count which affect damages, a simple

verdict form like that proffered by Plaintiff is not sufficient. Indeed, the confusion that could have

resulted regarding what damages to award, had the jury returned a verdict in favor of the Plaintiff, is

enough to warrant a more detailed form. As such, the verdict forms used by the Court were not

confusing and do not warrant a new trial.

2.

Testimony about Plaintiff’s retirement benefits was limited and not prejudicial.

Plaintiff has been fully heard on several occasions with regard to her objection to evidence of

Plaintiff’s retirement benefits. This was relevant evidence of Plaintiff’s motivation to retire and the

Court properly allowed this evidence to come in. However, the evidence was very limited and there

was not extensive testimony about the dollar amounts. At best, there was evidence that Department

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employees know that at some juncture they will have a greater take-home pay retired, than while they

are working. There was evidence presented that this was true for Plaintiff’s situation. However,

Plaintiff presented evidence that there was a downside to retiring when she did. Indeed, Plaintiff spoke

about having a greater base salary, drawing from her social security, and about other hardships she has

encountered because of the date she retired. As such, any prejudice on this issue was mitigated by the

fact that Plaintiff presented her side of this issue to the jury and a new trial is not warranted.

3.

Statements made by Gina Feazel were hearsay.

Plaintiff states that the Court did not allow evidence of statements made by Gina Feazel. This

is not an accurate statement. The Court did allow questioning of Ms. Feazel about statements which

she allegedly made. The Court further allowed testimony by Brandon Risse, for the purpose of

impeachment, about those same statements by Ms. Feazel. As such, it is unclear what is Plaintiff’s

complaint on this issue. Indeed, to the extent anyone was prejudiced by this testimony it was the

Defendant.

Plaintiff was not allowed to testify about things she heard Ms. Feazel had said. This was

proper as statements of a non-decision maker are hearsay. Plaintiff argues that this goes to Plaintiff’s

mental state, but Plaintiff’s mental state is not relevant. There was no evidence that any of the decision

makers were working through Ms. Feazel to harass Plaintiff, nor was there any evidence that Ms.

Feazel had supervisory powers over Plaintiff which would have made her a decision maker. As such,

any out-of-court statements made by Plaintiff’s co-workers (including MS. Feazel) which were offered

for the truth of the matter asserted were hearsay and, therefore, were not admissible. Even so, there

was testimony by Plaintiff of what the content of Ms. Feazel’s statements were, even though the actual

statements were not allowed into evidence. As such, the evidentiary rulings on this issue which

sustained the hearsay objections were proper and there was not prejudice to Plaintiff.

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Case 3:09-cv-00133-DRH-PMF Document 90 Filed 06/30/11 Page 8 of 14 Page ID #1046

4.

Plaintiff’s political affiliation arguments.

Plaintiff alleged that the Defendant’s actions were motivated or biased by partisan politics

and/or Ms. Casey’s personal, sexual, relationship with State Representative Kurt Grandburg. Prior

to presentation of these topics in opening statements, Defendant requested that an offer of proof be

made to this Court so that a determination as to the foundation for this evidence and its relevance

to the Plaintiff’s ADEA claims could be made. During that offer of proof Plaintiff admitted that

there was no evidence the Mr. Grandburg had been involved in any of the employment decisions

about Plaintiff at issue in this case. Indeed, Plaintiff’s claims that Mr. Grandburg’s politics

somehow guided the Department’s decisions is belied by the fact that Plaintiff did not bother to

subpoena Mr. Grandburg to testify at trial. This is not a political affiliation case and evidence that a

group of persons within the Department were all of a particular political affiliation is not relevant. As

such, the Court properly ruled that evidence of political affiliation, and personal, sexual, relationships

with State Representative Grandburg was not relevant.

Moreover, Plaintiff made politically charged arguments throughout this case by pointing to

former Governor Blagojevich. Plaintiff made several comments about how everyone was appointed

during the Blagojevich administration. As such, to the extent that Plaintiff felt a politically corrupt

administration was to blame, that evidence was presented by Plaintiff throughout the case and any

prejudice Plaintiff claims to have sustained was mitigated.

5.

Plaintiff’s ability to perform her duties as a counselor was relevant.

As part of Plaintiff’s burden in proving she was treated less favorably than younger similarly

situated persons, Plaintiff must show that she was meeting the legitimate expectations of her employer.

Evidence of Plaintiff’s ability to perform her job, and the quality of her work, is relevant on this point.

The evidence at issue was only from the few years (2004-2006) prior to when Plaintiff began receiving

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discipline (2006-2007) and, therefore, was not so remote from the issues in this case. Moreover,

Plaintiff argues that she was a good counselor and that the only basis for her discipline was her age.

Evidence of Plaintiff’s ability to perform as a counselor and the quality of her counseling work goes

to whether the discipline could have been because of Plaintiff’s job performance. Moreover, Plaintiff

presented extensive evidence about how meticulous she was in her job and why she did not deserve

discipline for her actions. To the extent that Plaintiff asserted she was a good counselor and had no

issues, this evidence was relevant. As such, the evidence of Plaintiff’s job performance in the few

years prior to her receipt of discipline was relevant and Plaintiff was given ample opportunity to

present evidence rebutting these issues thus mitigating any prejudice from this evidence.

6.

Plaintiff opened the door to witness opinion testimony.

Plaintiff asserts that the Court allowed inappropriate opinion testimony by the counselors who

testified. Specifically, Plaintiff complains that former counselors Sanner, Loepker, and Cagle, were

allowed to testify about whether they felt they were forced to leave Centralia because of their age.

First, Mr. Sanner and Ms. Loepker were Plaintiff’s witnesses who were called to testify about how they

were treated by former Warden Casey and why they left Centralia. As such, Plaintiff opened the door

to testimony about why they left Centralia and it was only fair to allow them to answer the question

of whether they believed it was because of their age. This was testimony which Plaintiff brought to

the case and to which Plaintiff did not object. This was not testimony about any ultimate issue in the

case, it was merely the witnesses perceptions of what they believed to be Ms. Casey’s motivation for

how those witnesses were treated by Ms. Casey. As such, Plaintiff’s complaint about testimony to

which she opened the door does not hold merit in showing prejudice warranting a new trial. See, e.g.,

Pickett, 610 F.3d at 445 (where the Seventh Circuit noted that “risky gambling tactics such as this

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Case 3:09-cv-00133-DRH-PMF Document 90 Filed 06/30/11 Page 10 of 14 Page ID #1048

are usually binding on the gambler. This court has not hesitated in the past to bind a party to its

strategic decision to sit silent in the face of claimed error by refusing relief when the party complains

because the result is unfavorable.”) Similarly, while Ms. Cagle was called as a witness in the

Defendant’s case, the same kinds of testimony were elicited from Ms. Cagle for the same reasons. Ms.

Cagle’s testimony was not objected to, and was a proper and necessary response to Plaintiff’s case.

As such, the testimony of these witnesses was relevant and was nothing more than their perception of

the events and a new trial is not warranted.

7.

No evidence of Plaintiff’s demand was admitted.

Plaintiff argues that evidence of Plaintiff’s monetary demand in her complaint was admitted

at trial. This is not a true statement. Counsel for the Defendant asked Plaintiff about her demand, but

Plaintiff’s objection to the question was sustained. The jury was instructed at the outset of the case

to ignore stricken testimony. The jury was further instructed that nothing said by counsel was

evidence. As such, there was no evidence of Plaintiff’s demand entered. See Pickett, 610 F.3d at 446

(noting that where the jury is instructed that statements by attorneys are not evidence, the Court

presumes juries follow those instructions); see also Miksis v. Howard, 106 F.3d 754, 764 (7th Cir.

1997) (“[T]his court has repeatedly explained that improper comments during closing argument rarely

rise to the level of reversible error.”) Moreover, to the extent there was any prejudice it was mitigated

by the fact that Plaintiff argued in her close that she wasn’t asking the jury to award any damages and

that she was basically seeking a moral victory. By arguing to the jury that there was no monies at

stake, Plaintiff cured any prejudice incurred by Defendant’s counsel asking about the demand in the

complaint filed by Plaintiff in this case. Therefore, no evidence of Plaintiff’s demand was entered and

a new trial is not warranted.

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8.

Brandon Risse’s testimony was not prejudicial.

Plaintiff states that evidence of Mr. Risse’s disciplinary charges was not relevant and

prejudicial. Mr. Risse testified that he was a good employee with no discipline. Counsel for the

Defendant is allowed to present evidence of bias, and his disciplinary charges are proper on this point.

All that was asked of Mr. Risse was whether he was presently facing discipline, what those charges

were for (socialization), and what the potential disciplinary result could be. There was no questioning

about the subject-matter giving rise to the charges, although Mr. Risse volunteered this information

in his answer. Moreover, Mr. Risse made it abundantly clear that this was a pending charge and that

he did not believe he deserved any discipline. Bias of a witness is a relevant issue, and pending

discipline is proper information for cross-examination. The questioning of Mr. Risse was very limited

and did not go into the factual allegations at issue. Mr. Risse was given great latitude in his answers

to explain his situation, there was no prejudice in allowing the Defendant to ask the questions, and

there was no objection to the questioning. As such, Mr. Risse’s pending discipline was proper material

for cross, the questioning was limited, and there was no prejudice which warrants a new trial.

With respect to counsel’s continued allegations that the Defendant tried to keep Mr. Risse from

testifying and penalized him for testifying – there is no evidence of this. First, Mr. Risse did testify,

indeed he was provided by the Department as a witness in Plaintiff’s case without requiring Plaintiff

to issue a subpoena. As the Plaintiff well knows, because it was discussed with Plaintiff’s counsel, Mr.

Falb, prior to trial, this was done as a courtesy to Plaintiff to avoid causing her to incur service fees

for subpoenas of Department employees. At no point did the Department refuse to provide Mr. Risse

as a witness. As such, Plaintiff’s statement that the Department attempted to prevent Mr. Risse from

testifying is baseless. It was the Department that made it possible for Plaintiff to bring Mr. Risse as

a witness.

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Moreover, there was no reason for the Department to try and avoid Mr. Risse’s testimony

because it was not relevant to very many issues in this matter, and certainly none of the key issues.

Mr. Risse had no first-hand knowledge about Ms. Casey because he was not at Centralia at the same

time as Ms. Casey. Mr. Risse has no first-hand knowledge about Plaintiff’s discipline because he was

not at Centralia when Plaintiff was disciplined. All Mr. Risse had first-hand knowledge about was

Plaintiff’s treatment by Warden Bates and Plaintiff’s performance under Warden Bates. Mr. Risse

testified consistent with Warden Bates, a decision-maker of the Department, on these issues.

Consequently, Plaintiff’s argument that Mr. Risse had unfavorable testimony for the Department is

baseless.

Finally, Plaintiff’s allegations that Mr. Risse was penalized for testifying are similarly baseless.

Mr. Risse’s prior discipline for the lost keys (which he reported as lost) occurred before he was ever

involved in this case. Mr. Risse’s pending discipline was not issued by any of the decision-makers in

this case. Finally, there was testimony from at least three witnesses about Mr. Risse’s evaluations and

why they were changed. At bottom, this occurred at the very outset of the case, nearly two-years

before the trial, there is simply no temporal relationship between that change and the possibility of Mr.

Risse’s testimony at trial two years later. Moreover, as stated above Mr. Risse’s knowledge about this

case is limited and not unfavorable. Plaintiff’s assertion that Mr. Risse was a key witness is further

belied by the fact that Mr. Risse was not deposed. Plaintiff took fourteen (14) depositions in this case,

including almost every witness at trial. If Mr. Risse was such an important witness, surely he would

have been deposed. The reality here is that Mr. Risse did not know anything relevant to the key issues

of the case and what he did know was consistent with the decision-makers. There was no reason to

punish Mr. Risse for potential future testimony and he has not punished for any of his involvement in

this case. Plaintiff put Mr. Risse on the stand and elicited the testimony at issue from him. Plaintiff’s

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complaint that what she elicited from Mr. Risse was prejudicial cannot justify a new trial.

9.

Evidence of a hostile work environment was entered.

Plaintiff states that he was not allowed to present evidence of a hostile work environment. This

is not an accurate statement. While Plaintiff was not allowed to pursue a separate hostile work

environment claim, because it was not included in the final pre-trial order, evidence of Plaintiff’s work

environment was entered as it was relevant to the constructive discharge claim. The final pre-trial

order contained the agreed issues for trial submitted by the parties and it was not err for the Court to

hold the parties to that agreement. Moreover, evidence of Plaintiff’s work environment was allowed

because it was relevant to the issue of constructive discharge. As such, a new trial is not warranted.

III. CONCLUSION

For these reasons, Defendant, Department of Corrections, respectfully requests this

honorable Court deny Plaintiff’s Motion for Judgment Notwithstanding the Verdict or a New Trial.

Respectfully submitted,
ILLINOIS DEPARTMENT OF CORRECTIONS,

Defendant,

LISA MADIGAN, Attorney General,
State of Illinois,
/s/Joanna Belle Gunderson
JOANNA BELLE GUNDERSON
Illinois Bar # 6286292
Assistant Attorney General
Attorney for Defendant
500 South Second Street
Springfield, IL 62706
Telephone: (217) 782-1841
Facsimile: (217) 524-5091
jgunderson@atg.state.il.us

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

-vs-

ILLINOIS DEPARTMENT
OF CORRECTIONS,

Defendant.

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No. 09-133-DRH

CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2011 I electronically filed the foregoing Response to
Plaintiff’s Motion for Judgment Notwithstanding the Verdict or a New Trial with the Clerk of Court
using the CM/ECF system which will send notification of such filing to the following counsel of
record for Plaintiff:

Thomas O. Falb
tfalb48@yahoo.com

and I hereby certify that on June 30, 2011, I mailed by United States Postal Service, the document
to the following non-registered participant:

NONE

Respectfully submitted,
/s/Joanna Belle Gunderson
JOANNA BELLE GUNDERSON
Illinois Bar # 6286292
Assistant Attorney General
Attorney for Defendant
500 South Second Street
Springfield, IL 62706
Telephone: (217) 782-1841
Facsimile: (217) 524-5091
jgunderson@atg.state.il.us

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