Bruso, Mark v. United Airlines Inc ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-1688, 00-1699
MARK J. BRUSO,
Plaintiff-Appellee, Cross-Appellant,
v.
UNITED AIRLINES, INCORPORATED,
Defendant-Appellant, Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 7005--Charles R. Norgle, Sr., Judge.
ARGUED NOVEMBER 2, 2000--DECIDED FEBRUARY 2, 2001
Before HARLINGTON WOOD, JR., RIPPLE and
ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Mark Bruso sued
his employer, United Airlines, Inc.
("United"), alleging that United demoted
him in retaliation for his reports of
sexual harassment by a fellow supervisor
in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. sec. 2000e
et seq. A jury found in favor of Mr.
Bruso and awarded him $10,000 in damages.
Mr. Bruso sought to retry the issue of
damages because he believed the jury’s
award was insufficient, but the district
court refused his request. The district
court also granted United’s motion for
judgment as a matter of law on the issue
of punitive damages. Following the
court’s entry of judgment on the jury’s
verdict, Mr. Bruso moved for various
forms of equitable relief and for an
award of attorneys’ fees. The district
court denied his requests for equitable
relief but granted him the $393,418.75 he
requested in attorneys’ fees. United now
appeals the court’s award of attorneys’
fees. Mr. Bruso cross-appeals the court’s
refusal to retry the issue of damages,
the court’s grant of judgment as a matter
of law against him on the issue of
punitive damages, and the court’s denial
of his requests for equitable relief. For
the reasons set forth in the following
opinion, we affirm in part, reverse in
part, and remand for further proceedings.
I
BACKGROUND
A. Facts
Mark Bruso has been an employee of
United since 1987. From February 5, 1996,
to January 24, 1997, Mr. Bruso served as
an administrative supervisor of cabin
services at O’Hare International Airport
in Chicago ("O’Hare"). His direct
supervisor was John King, United’s
manager of cabin services at O’Hare.
King, in turn, reported to Rod
Strickland, United’s station manager at
O’Hare. This team of managers and
supervisors had received extensive
training from United’s senior litigation
counsel, Nancy Gordon, on United’s policy
of zero tolerance for discrimination and
sexual harassment.
The events of this case originate with
the conduct of Kevin Sporer, another
administrative supervisor under King’s
charge. Sporer was not well liked among
other United employees; he had a short
temper and was known to be verbally
abusive to his subordinates. Sporer was
known to scream and swear at female
employees, sometimes threatening to fire
them. Various United employees reported
Sporer’s behavior to King, and, although
King occasionally spoke to Sporer about
his conduct, he never formally
disciplined him.
On December 18, 1996, Mr. Bruso was in
one of United’s ready rooms with Amy
Swanson and Juan Palacios, two
nonsupervisory United employees. Sporer
charged into the room and yelled at
Swanson to retrieve some computer
printouts, then to leave for the day. Mr.
Bruso confronted Sporer and told him that
his aggressive behavior toward Swanson
was out of line. According to Swanson and
Palacios, Sporer then began a
confrontation by yelling at Mr. Bruso,
and Mr. Bruso initially responded in a
normal tone of voice but began yelling as
Sporer’s tirade continued. Eventually,
Sporer said to Mr. Bruso, "If you don’t
get out of my face, I’m going to punch
you." R.111-4 at 667. Mr. Bruso’s
response to Sporer was "Go ahead." Id.
Palacios eventually left the room because
he thought there was going to be a
physical fight between Sporer and Mr.
Bruso. No such fight occurred, however,
because Sporer eventually stormed out of
the room.
That evening, Mr. Bruso telephoned King
and informed him of the confrontation
with Sporer. King asked Swanson and
Palacios to submit written statements
describing what they had witnessed, which
each of them did. The following day, King
had a meeting with Mr. Bruso and Sporer
at which he told them that he had
initially intended to fire them both.
Instead, King asked Mr. Bruso and Sporer
to provide written statements. He
discussed their versions of the
altercation with them and then took the
matter under advisement. The next day,
King informed Mr. Bruso that he was going
to remove Sporer from his supervisory
duties and that he was going to place a
letter of counsel in Mr. Bruso’s
personnel file.
Mr. Bruso, having never before received
a formal reprimand while working for
United, wrote a letter to King to
elaborate further on his confrontation
with Sporer. Mr. Bruso explained in his
letter that several of United’s female
employees had complained about Sporer’s
conduct toward them, and, in Mr. Bruso’s
opinion, Sporer’s problem working with
women created potential legal
difficulties for United. He detailed his
own experiences with Sporer, as well as
accounts that he had received from
Swanson and another United employee, Bea
Wiggens, concerning Sporer’s conduct
toward them. Mr. Bruso gave copies of his
letter to King and to Strickland.
After reviewing Mr. Bruso’s letter,
United’s management commissioned an
independent review team ("IRT") to review
the allegations of harassment concerning
Sporer that Mr. Bruso had detailed in his
letter to King. The IRT was comprised of
Richard Bolanowski and Richard Mayer,
both of whom were United employees and
had received training in the
antidiscrimination laws and United’s pol
icies designed to implement those laws.
Mr. Bruso was suspended with pay while
the IRT conducted its investigation./1
The IRT compiled a list of witnesses it
intended to interview from Mr. Bruso’s
letter to King and from the initial
interviews it conducted. The first
witness the IRT interviewed was King.
King told the IRT that several employees
had lodged complaints with him about
Sporer’s conduct, including a male
employee who told King that Sporer did
not treat women well. The IRT also
interviewed Swanson and Wiggens, both of
whom confirmed essentially what Mr. Bruso
had written in his letter to King.
Wiggens verified that Sporer often
berated her and belittled her and moved
her to another shift so that he would not
have to work with her. Swanson confirmed
that Sporer stared at her and frequently
asked her inappropriate questions about
her personal life. The IRT spoke with two
other female employees, both of whom
stated that Sporer had made them
uncomfortable; however, the IRT did not
interview the remaining witnesses on the
list it originally created./2
In addition to speaking with these
witnesses, the IRT also spoke with Mr.
Bruso. The IRT met with Mr. Bruso and
explained to him that his letter to King
put United in a precarious legal position
because it accused Sporer of sexually
harassing United’s female employees. Mr.
Bruso objected to this characterization
of his letter, and he provided another
written statement in which he said that
his original letter did not actually
accuse Sporer of sexual harassment;
instead, he had only intended to report
to United’s management what other
employees had told him in order to alert
United to the potential problems
presented by Sporer’s conduct.
Based on the information it gathered
during its investigation, the IRT
concluded that Sporer, in fact, had not
sexually harassed or discriminated
against anyone. The IRT filed a written
report suggesting that Mr. Bruso had
written his accusatory letter to King to
try to justify his role in the December
18 confrontation with Sporer. King
accepted the IRT’s conclusion, and he
wrote a letter to Mr. Bruso explaining
that, in his opinion, Mr. Bruso either
had falsely accused Sporer of sexual
harassment or had failed to report
Sporer’s inappropriate conduct in a
timely manner. King also mentioned in his
letter that Mr. Bruso’s behavior during
the December 18 confrontation with
Sporer, "while inappropriate for any
employee, was inexcusable for a member of
management." R.73, Ex.D at 2. As a
result, King demoted Mr. Bruso to the
last nonsupervisory position he held at
United: a ramp serviceman, or baggage
handler. King’s decision to demote Mr.
Bruso was affirmed by Strickland.
Mr. Bruso chose to protest his demotion,
and he took time off work, without pay,
to prepare his case. He filed a formal
appeal, and Strickland was the manager
designated to hear the appeal. Because
Strickland had affirmed his demotion, Mr.
Bruso requested that his appeal be
reassigned, but his request was refused.
Mr. Bruso also sought permission to
present witnesses on his behalf at his
management review hearing, but Strickland
refused that request as well. Elizabeth
Cavanaugh, a United employee who took
notes at Mr. Bruso’s management review
hearing, testified at trial that
Strickland was adversarial and angry
during the meeting. Ultimately,
Strickland denied Mr. Bruso’s appeal.
Following that denial, Mr. Bruso
protested his demotion to the president
and vice president of United. Gordon was
asked to respond to Mr. Bruso’s
complaints. Gordon asked Mr. Bruso to
submit written materials supporting his
position, which he did. Based on her
review of Mr. Bruso’s case, Gordon
concluded that Mr. Bruso’s accounts of
Sporer’s conduct were inconsistent and
that Mr. Bruso had changed his story as
to whether Sporer had engaged in sexual
harassment. In Gordon’s opinion, Mr.
Bruso had selectively and misleadingly
chosen language from the sexual
harassment training materials she had
distributed in order to support his
claims of harassment. Gordon therefore
declined to rescind Mr. Bruso’s demotion.
Mr. Bruso began work in his demoted
position as a ramp serviceman on January
24, 1997. Because of his job change, he
had to purchase new uniforms and to pay
new union dues. Mr. Bruso’s demotion took
an emotional toll on him because he felt
he was mocked by his coworkers in his new
position, and he sought the assistance of
a psychologist in coping with his
distress. In the fall of 1998, Mr. Bruso
had to undergo gallbladder surgery./3
Because his new position as a ramp
serviceman required him to perform heavy
lifting and carrying, Mr. Bruso was not
able to return to work following his
surgery as quickly as he would have if he
had still been a supervisor, a position
which required no manual labor.
B. Proceedings in the District Court
Mr. Bruso filed a one-count complaint
against United in district court. He
alleged that United violated Title VII by
demoting him in retaliation for his
report of Sporer’s sexual harassment.
United defended against Mr. Bruso’s
allegations by arguing that it demoted
Mr. Bruso because he either had falsely
accused Sporer of sexual harassment in
order to justify and avoid reprimand for
his role in the December 18
confrontation, or, alternatively, if Mr.
Bruso did believe that Sporer had
actually harassed United’s female
employees, he unnecessarily put United at
risk by failing to report Sporer’s
conduct in a timely manner. Mr. Bruso
argued to the jury that the reasons
United proffered for his demotion were
pretextual. He claimed that the IRT
investigation was a sham, and that United
tried to discredit him in order to cover
up its management’s knowledge of Sporer’s
harassment and protect itself from legal
liability. He asked the jury to award him
over $46,000 in lost wages and direct
expenses as a result of United’s
retaliatory demotion,/4 in addition to
$1 million in compensatory damages for
emotional distress and damage to his
reputation. Mr. Bruso also sought to
submit the issue of punitive damages to
the jury. The court, however, ruled that
United had not been recklessly
indifferent to Mr. Bruso’s complaints of
harassment, which made an award of
punitive damages unwarranted. Therefore,
the court granted judgment as a matter of
law in favor of United on the issue of
punitive damages.
The jury returned a verdict in Mr.
Bruso’s favor, awarding him $10,000 in
lost wages and direct expenses and no
compensatory damages. After the jury
returned its verdict, Mr. Bruso moved for
a new trial on damages, arguing that the
jury’s award of only $10,000 was against
the manifest weight of the evidence. The
district court denied this motion because
it found that there was a rational basis
for the jury’s award of $10,000 in lost
wages and direct expenses and that the
jury was free to disregard Mr. Bruso’s
evidence of emotional distress and damage
to his reputation.
Mr. Bruso asked the district court for
three forms of equitable relief. First,
Mr. Bruso requested that he be reinstated
to his former position as a supervisor.
The court declined to reinstate Mr. Bruso
because it concluded that his
relationship with United’s management was
too fraught with hostility to permit a
productive working relationship and
because Mr. Bruso had not behaved as a
supervisor should have behaved during his
initial confrontation with Sporer.
Second, Mr. Bruso asked the court to
expunge his personnel record of any
discipline related to his reports of
Sporer’s harassment or any reference to
his removal from management. Stating that
it would not meddle in United’s personnel
affairs, the district court refused to
expunge Mr. Bruso’s personnel record.
Third, Mr. Bruso asked the court to
enjoin United from further retaliating
against him or any other United employee.
The district court denied Mr. Bruso’s
request for an injunction because it
found no evidence that United engaged in
systematic retaliation or discouraged its
employees from reporting harassment.
Lastly, Mr. Bruso submitted a request
for attorneys’ fees to the district
court. The lodestar figure Mr. Bruso sub
mitted was $393,418.75. United objected
to this amount, claiming that it was
excessive in light of the $10,000 award
Mr. Bruso received. The district court
disagreed, and it awarded Mr. Bruso the
lodestar figure he requested.
II
DISCUSSION
United has appealed the district court’s
award of attorneys’ fees to Mr. Bruso.
Mr. Bruso, in turn, asks us to review
several aspects of the district court’s
disposition, including its refusal to
retry the issue of damages, its refusal
to submit the issue of punitive damages
to the jury, and its refusal to provide
any equitable relief. Because the
propriety of the amount of the attorneys’
fee award depends on the degree of Mr.
Bruso’s success in this litigation, we
turn first to Mr. Bruso’s requests.
A. Damages Award
Mr. Bruso’s first challenge is to the
amount of the jury’s damages award. Mr.
Bruso moved in the district court for a
new trial on the issue of damages because
he believed that the jury’s award was
against the manifest weight of the
evidence. Mr. Bruso maintained that the
uncontested evidence he submitted
regarding his decrease in salary, lost
pay because of time he took off from work
to fight his demotion and to recover from
his gallbladder surgery, union dues,
equipment costs, lost overtime, and
psychologist’s bills established that he
was entitled to over $46,000 in lost
wages and direct expenses. The district
court disagreed and denied his motion.
The district court explained that Mr.
Bruso voluntarily took time off to fight
his demotion, and the jury was free to
conclude that Mr. Bruso was not entitled
to the wages he lost during his voluntary
leave of absence. The court further
concluded that the jury reasonably could
have decided that Mr. Bruso was not
entitled to the wages he lost while he
was recovering from his gallbladder
surgery. Lastly, the court stated that,
because the jury was free to conclude
that United did not cause Mr. Bruso’s
mental anguish or emotional suffering, he
was not entitled to compensatory damages.
We review the district court’s denial of
a motion for a new trial on damages for
an abuse of discretion. See Gavoni v.
Dobbs House, Inc., 164 F.3d 1071, 1075
(7th Cir. 1999). "[T]he plaintiffs must
show that ’there is no rational
connection between [the award] and the
evidence.’" Id. (quoting Raybestos Prod.
Co. v. Younger, 54 F.3d 1234, 1244 (7th Cir.
1995)). Because we conclude that there is
a rational basis for the jury’s damage
award, we affirm the district court’s
denial of Mr. Bruso’s motion for a new
trial.
The evidence Mr. Bruso submitted to the
jury established that Mr. Bruso lost
$8,533.84 in wages as a result of his
demotion from a supervisory position to
his current position as a ramp
serviceman. Mr. Bruso’s evidence also
established that, in order to begin
working as a ramp serviceman, he had to
pay $961 in union dues and $400 for work
shoes and uniforms. When these three
amounts are added together, the total
loss is $9,894.84. This amount is
sufficiently close to the jury’s $10,000
award that we are unable to conclude that
there was no rational basis for it.
Mr. Bruso argues that it was not within
the jury’s province to ignore his
additional evidence of loss. However, Mr.
Bruso is only entitled to compensation
for the damages he proved by a
preponderance of the evidence. See
Taliferro v. Augle, 757 F.2d 157, 162
(7th Cir. 1985) ("A plaintiff is not
permitted to throw himself on the
generosity of the jury. If he wants
damages, he must prove them."); see also
Avitia v. Metropolitan Club of Chicago,
Inc., 49 F.3d 1219, 1229 (7th Cir. 1995)
("[I]t is not implausible that [a
retaliation plaintiff] should have been
deeply upset at losing a job he had held
for so many years; but the deep upset had
to be proved, and was not."). We believe
that the evidence in the record is
sufficient to justify the jury’s apparent
conclusion that Mr. Bruso did not prove
that he was entitled to the remaining
damages he requested.
Mr. Bruso first maintains that the jury
erred in failing to award him over
$18,900 in lost wages as a result of the
time he took off from work in order to
appeal his demotion. However, Mr. Bruso
requested and voluntarily took this time
off; he asked United for voluntary leave,
and United granted his request. There was
no indication that United forced him to
take this leave or that it was necessary
for him to do so in order to appeal his
demotion. Thus, the jury reasonably could
have determined that Mr. Bruso brought
this monetary loss upon himself, that
United did not cause the loss, and that
United should not be forced to pay for
Mr. Bruso’s voluntary decision to take
this time off work.
Mr. Bruso also insists that he should be
compensated for $2,643.50 he lost in
overtime once he was demoted. Mr. Bruso
testified, however, that he did not take
overtime as a ramp serviceman because the
job involved heavy physical labor. He
also testified that he did not think
overtime was available on his shift as a
ramp serviceman, but he admitted that he
was not sure and that he could have been
mistaken. From Mr. Bruso’s own testimony,
the jury could have concluded that Mr.
Bruso failed to prove that overtime was
not available to him as a ramp
serviceman, whereas it was as a
supervisor. Mr. Bruso’s inconclusive
testimony also left room for the jury to
conclude that he had the opportunity to
earn overtime as a ramp serviceman but
chose not to pursue that opportunity. As
a result, the jury was free to conclude
that United should not have to compensate
Mr. Bruso for this lost opportunity.
With respect to the wages Mr. Bruso was
unable to earn as a result of his delayed
return to work following his gallbladder
surgery, Mr. Bruso himself admits that
the onset of his gallbladder condition
was not related to his demotion. The
surgery took place over one year after
Mr. Bruso’s demotion, making any
connection between the surgery and the
demotion quite remote. Furthermore, Mr.
Bruso testified that he had a large
abdominal incision that caused him severe
pain. Although he also testified that the
physical labor he had to perform as a
ramp serviceman aggravated the pain, his
claim that he could have returned to work
sooner had he still been a supervisor is
fairly speculative./5 Therefore, it was
not unreasonable for the jury to conclude
that the physical pain Mr. Bruso
described would have kept him away from
his supervisory duties, as well.
Lastly, the jury was free to disbelieve
Mr. Bruso’s claims of emotional suffering
and mental anguish. Although Mr. Bruso
argues that the fact that he sought the
assistance of a psychologist
automatically entitles him to
compensation for the psychologist’s
bills, his argument is without merit. It
is within the jury’s province to evaluate
the credibility of witnesses who testify
to emotional distress, and we shall not
disturb those credibility determinations
on appeal. If the jury disbelieved Mr.
Bruso’s testimony regarding the
humiliation, anger, and depression he
felt following his demotion, as it was
free to do, it was not obligated to award
him compensation for his psychologist’s
bills.
Because the jury’s award of $10,000 in
lost wages and no compensatory damages
has a rational basis in the record, we
shall not disturb its determination. The
trial court did not abuse its discretion
in denying Mr. Bruso’s motion for a new
trial on damages.
B. Punitive Damages
The district court granted United’s
motion for judgment as a matter of law on
the issue of punitive damages. We review
de novo a district court’s grant of
judgment as a matter of law. See Hamner
v. St. Vincent Hosp. & Health Care Ctr.,
Inc., 224 F.3d 701, 704 (7th Cir. 2000).
"[W]e ’review the evidence in a light
most favorable to the non-moving party to
determine whether there was no legally
sufficient evidentiary basis for a
reasonable jury to find for the non-
moving party.’" Id. (quoting Payne v.
Milwaukee County, 146 F.3d 430, 432 (7th
Cir. 1998)).
Title VII authorizes an award of
punitive damages when a plaintiff
demonstrates that the defendant engaged
in intentional discrimination "with
malice or with reckless indifference to
the federally protected rights of an
aggrieved individual." 42 U.S.C. sec.
1981a(b)(1). In Kolstad v. American
Dental Association, 527 U.S. 526 (1999),
the Supreme Court provided a three-part
framework for determining whether an
award of punitive damages is proper under
the statutory standard. To be entitled to
punitive damages, a plaintiff must first
demonstrate that the employer acted with
the requisite mental state. The employer
must have acted with knowledge that its
actions may have violated federal law.
See id. at 535. The employer need not be
aware that it is engaging in
discrimination. See id. Instead, it need
only act "in the face of a perceived risk
that its actions will violate federal
law." Id. at 536; see also Gentry v.
Export Packaging Co., No. 00-2367, 2001
WL 59432 at *7 (7th Cir. Jan. 25, 2001).
A plaintiff may satisfy this element by
demonstrating that the relevant
individuals knew of or were familiar with
the antidiscrimination laws and the
employer’s policies for implementing
those laws./6 A plaintiff may also
establish that the defendant acted with
reckless disregard for his federally
protected rights by showing that the
defendant’s employees lied, either to the
plaintiff or to the jury, in order to
cover up their discriminatory actions.
See Passantino v. Johnson & Johnson
Consumer Prods., Inc., 212 F.3d 493, 516
(9th Cir. 2000) (stating that the jury
could have concluded that the defendants
did not reasonably believe their conduct
was lawful because they lied to the
plaintiff and at trial in order to
conceal their discriminatory actions
against her).
Once a plaintiff has established that
the defendant, or its employees, acted in
reckless disregard of his federally
protected rights, he must establish a
basis for imputing liability to the
employer. See Kolstad, 527 U.S. at 539.
The plaintiff must demonstrate that the
employees who discriminated against him
are managerial agents acting within the
scope of their employment. See id. at
543. Although the Supreme Court did not
provide specific standards for conducting
this inquiry, it did indicate that the
inquiry should be controlled by general
principles of federal agency law. See id.
at 542. The Court further indicated that
determining whether an employee acts in a
managerial capacity is necessarily a
fact-intensive inquiry, and the fact
finder ought to consider the kind of
authority the employer has given the
employee, the amount of discretion given
to the employee in executing his job
duties, and the manner in which those
duties are carried out. See id. at 543.
Even if the plaintiff establishes that
the employer’s managerial agents
recklessly disregarded his federally pro
tected rights while acting within the
scope of their employment, the employer
may avoid liability for punitive damages
if it can show that it engaged in good
faith efforts to implement an
antidiscrimination policy. See id. at
545. An employer’s good faith efforts to
comply with the requirements of Title VII
demonstrate that the employer itself did
not act in reckless disregard of
federally protected rights, thus making
it inappropriate to punish the employer
for its employees’ contravention of its
established policies. See id. at 544-45.
Every court to have addressed this issue
thus far has concluded that, although the
implementation of a written or formal
antidiscrimination policy is relevant to
evaluating an employer’s good faith
efforts at Title VII compliance, it is
not sufficient in and of itself to
insulate an employer from a punitive
damages award./7 Otherwise, employers
would have an incentive to adopt formal
policies in order to escape liability for
punitive damages, but they would have no
incentive to enforce those policies. See
Passantino, 212 F.3d at 517 ("Although
the purpose of Title VII is served by
rewarding employers who adopt anti-
discrimination policies, it would be
undermined if those policies were not
implemented, and were allowed instead to
serve only as a device to allow employers
to escape punitive damages for the
discriminatory activities of their
managerial employees.") (internal
citations omitted).
The district court granted United’s
motion for judgment as a matter of law
with respect to punitive damages because
it concluded that United had not been
indifferent to Mr. Bruso’s complaints
regarding his demotion. The court
stressed that Mr. Bruso was able to
protest his demotion to multiple levels
of United’s management and that he always
received a response. According to
thedistrict court, "No one [at United]
tried to stop him [Mr. Bruso] in his
tracks. No one bounced him off or ignored
him." R.111-9 at 1642. Given United’s
attentiveness to Mr. Bruso’s complaints,
the court determined that no reasonable
jury could have found that United was
recklessly indifferent to Mr. Bruso’s
federally protected rights or that there
was a "knowing and willful violation of
the statute here." Id. at 1643. Although
the district court acknowledged Kolstad
as establishing the controlling legal
principles, it did not apply the Kolstad
framework we have just discussed. We must
conclude that the district court erred in
failing to apply Kolstad.
Applying the Kolstad framework, we are
convinced that Mr. Bruso presented
sufficient evidence at trial to enable a
reasonable jury to determine that United
was recklessly indifferent to Mr. Bruso’s
federally protected rights within the
meaning of sec. 1981a. Mr. Bruso
demonstrated at trial that the major
players in the decision to demote him
were familiar with the antidiscrimination
principles of Title VII and United’s
zero-tolerance-for-discrimination policy,
which was designed to implement Title VII
in United’s workplace. King himself
admitted as much when he stated in his
letter to Mr. Bruso that he (King) had
discussed United’s zero-tolerance policy
with every supervisor "on more than one
occasion." R.73, Ex.D at 2. Strickland
also demonstrated his familiarity with
Title VII when, after he decided to
affirm King’s decision to demote Mr.
Bruso, he sent Mr. Bruso a letter
explaining, "Whether or not you [Mr.
Bruso] actually accused Kevin [Sporer] of
sexual harassment, gender, or racial
discrimination, the behavior you went on
to describe clearly would fall into those
categories and would be illegal." R.55,
Ex.F at 4. Strickland also testified at
trial that he had been to at least three
training sessions on sexual harassment
and discrimination and that he had read
United’s zero-tolerance policy and
informational materials. Gordon, who was
Mr. Bruso’s final appeal in his attempt
to challenge his demotion, was
herselfresponsible for educating and
training United’s employees about Title
VII and United’s antidiscrimination
policies. Based on this evidence, a
reasonable jury could have concluded that
King, Strickland, and Gordon were
familiar with Title VII and must have
been aware of the possibility that
demoting Mr. Bruso after he had come
forward with allegations of harassment
would violate Title VII. See Kolstad, 527
U.S. at 535; Ogden v. Wax Works, Inc.,
214 F.3d 999, 1010 (8th Cir. 2000).
There can also be little doubt that Mr.
Bruso presented sufficient evidence to
allow a reasonable jury to conclude that
King, Strickland, and Gordon were
United’s managerial agents acting within
the scope of their employment. King
testified that he was United’s manager of
cabin service at O’Hare. As such, he was
responsible for overseeing the cleaning
and provisioning of over 440 departing
planes per day. He had seven supervisors
who reported directly to him, and those
supervisors could have up to 125
employees reporting to them. King was
responsible for assigning work to various
employees, and the testimony at trial
indicated that he had the authority to
mediate disputes among employees and to
investigate claims of harassment or
discrimination. Based on this evidence, a
reasonable jury could have concluded that
King was given enough discretion as part
of his employment at United to make him a
managerial agent acting in the scope of
his employment when he recommended that
Mr. Bruso be demoted.
With respect to Strickland, the
testimony at trial established that he
was United’s general manager at O’Hare,
which put him "in charge of the entire
O’Hare Airport for United Airlines, the
entire United Airlines portion." R.111-7
at 1208. Strickland also testified that
managers such as King needed his approval
before they could demote one of their
subordinates. This evidence certainly
would have allowed a reasonable jury to
conclude that Strickland was a managerial
agent of United acting within the scope
of his employment in affirming Mr.
Bruso’s demotion.
The record also provides sufficient
evidence to allow a reasonable jury to
conclude that Gordon was United’s
managerial agent. Gordon was United’s
senior litigation counsel. She advised
United’s employees on labor and
employment matters, conducted training
courses on harassment and discrimination,
and prepared and distributed literature
to employees to help prevent harassment
and discrimination in the workplace. In
fact, Gordon testified that she was
responsible for writing most of the
reference material United gave to its
supervisors as guidance in dealing with
harassment or discrimination. Gordon also
explained that her superior, United’s
deputy general counsel, asked her "to
review the events surrounding Mr. Bruso’s
demotion and essentially make a decision
as to whether or not the demotion had
been correct . . . and appropriate."
R.111-7 at 1383. Based on this evidence,
a reasonable jury could have concluded
that Gordon was given enough discretion
in handling personnel matters, and
harassment issues in particular, to make
her United’s managerial agent acting
within the scope of her employment when
she refused to rescind Mr. Bruso’s
demotion./8
Lastly, Mr. Bruso presented sufficient
evidence to allow a reasonable jury to
conclude that United did not engage in a
good faith effort to comply with Title
VII. Although United did have a formal
zero-tolerance-for-discrimination policy
in place and it did educate its employees
about that policy, Mr. Bruso introduced
evidence at trial that suggested that
United’s top management officials
disregarded the policy by refusing to
remedy Sporer’s harassment even though
they knew about it. From the evidence at
trial, the jury could have concluded that
the IRT investigation into Sporer’s
conduct was a sham designed to discredit
Mr. Bruso and to protect the managers who
should have taken action to correct
Sporer’s harassment sooner. If the jury
accepted this evidence, which its verdict
in Mr. Bruso’s favor suggests it might
have, then it could have concluded that
United did not make a good faith effort
to comply with Title VII despite its
formal antidiscrimination policy. See
Lowery v. Circuit City Stores, Inc., 206
F.3d 431, 446 (4th Cir. 2000).
Because Mr. Bruso presented sufficient
evidence to allow a reasonable jury to
conclude that United acted in reckless
disregard of his federally protected
rights within the meaning of sec. 1981a
and Kolstad, the district court abused
its discretion in granting United’s
motion for judgment as a matter of law as
to punitive damages. Mr. Bruso should
have been allowed to ask the jury for an
award of punitive damages, and he is
therefore entitled to a new trial on this
issue.
C. Equitable Relief
Mr. Bruso asked the district court for
three forms of equitable relief:
reinstatement, expungement of his
personnel record, and a permanent
injunction against further retaliation.
The district court denied each of his
requests. In addition, the district court
determined that Mr. Bruso was not
entitled to front pay. We review a
court’s decision with respect to
equitable relief for an abuse of
discretion. See EEOC v. Century Broad.
Corp., 957 F.2d 1446, 1462 (7th Cir.
1992).
1. Reinstatement
After the jury returned a verdict in his
favor on his retaliatory demotion claim,
Mr. Bruso asked the district court to
reinstate him to his former position as a
supervisor. The district court declined
to do so, finding that "the lingering
tension between Bruso and United
management makes reinstatement to his
former supervisory position particularly
infeasible." R.87 at 5. In support of its
conclusion, the court explained that,
during closing arguments, Mr. Bruso’s
attorney "accused King of attempting to
’deep six’ his complaints about Sporer
and similarly accused Strickland of using
the review process to further a cover-up.
Also, Bruso’s counsel argued that United,
including its president, engaged in a
cover-up to protect the company ’at all costs.’"
Id. (internal citations omitted). The
district court further relied on the fact
that Mr. Bruso’s case took aim at much of
United’s managerial hierarchy, thereby
poisoning any potential working
relationship. Lastly, the district court
stated that Mr. Bruso did not act as a
supervisor should have acted during his
initial confrontation with Sporer and
during the ensuing investigation.
The equitable remedy of reinstatement
requires the court to strike a delicate
balance. On the one hand, reinstatement
is the preferred remedy for victims of
discrimination, and the court should
award it when doing so is feasible. See
McKnight v. General Motors Corp., 973
F.2d 1366, 1370 (7th Cir. 1992) (quoting
Coston v. Plitt Theatres, Inc., 831 F.2d
1321, 1330 (7th Cir. 1987), vacated on
other grounds, 486 U.S. 1020 (1998)). On
the other hand, a court is not required
to reinstate a successful plaintiff where
the result would be a working
relationship fraught with hostility and
friction. See Hutchison v. Amateur Elec.
Supply, Inc., 42 F.3d 1037, 1045-46 (7th
Cir. 1994). Reinstatement in such
situations could potentially cause the
court to become embroiled in each and
every employment dispute that arose
between the plaintiff and the employer
following the plaintiff’s reinstatement.
See id. at 1046. A court must be careful,
however, not to allow an employer to use
its anger or hostility toward the
plaintiff for having filed a lawsuit as
an excuse to avoid the plaintiff’s
reinstatement. See Century Broad. Corp.,
957 F.2d at 1462.
The court’s task of identifying the
source of the friction between the
employer and the plaintiff following the
litigation may be straightforward when
there is absolutely no evidence that
there was friction in the relationship
before the plaintiff filed suit. See id.However, reinstatement may become
particularly infeasible if the plaintiff
would no longer enjoy the confidence and
respect of his superiors once reinstated.
See Tennes v. Massachusetts Dep’t of
Revenue, 944 F.2d 372, 381 (7th Cir.
1991). Reinstatement may also be more
problematic when the plaintiff holds a
management position, see Avitia, 49 F.3d
at 1230, or would be supervised by the
same individuals who discriminated
against him in the first place, see Price
v. Marshall Erdman & Assocs., Inc., 966
F.2d 320, 325 (7th Cir. 1992).
In this case, Mr. Bruso is asking to be
returned to a management position in
which he could be supervised by some of
the same individuals who were involved in
his retaliatory demotion. The district
court was therefore correct to consider
the relationship between Mr. Bruso and
these individuals following the
litigation and whether any hostility
still lingering between them would poison
the prospect of a future working
relationship. We are concerned, however,
by the district court’s emphasis on the
litigation itself as the basis for
denying reinstatement. In alleging--and
proving to the satisfaction of the jury--
that United’s management had retaliated
against him for bringing to its attention
the fact that another company supervisor
had engaged in proscribed conduct, Mr.
Bruso necessarily made accusations
against company management personnel that
hardly reflected well on their personal
integrity or their management skills. We
do not believe, however, that the angry
reaction of United’s management to Mr.
Bruso’s success before the jury can,
standing alone, justify denying
reinstatement. Nor do we believe that, as
the district court suggested, Mr. Bruso’s
attorney’s advocacy on behalf of his
client can be a proper basis for such a
refusal.
The district court stated that it
believed that the tension between Mr.
Bruso and United’s management went
"beyond the underlying litigation." R.87
at 5. It gave, however, no further
elaboration. Because the district court
relied on impermissible considerations in
its determination that reinstatement was
not feasible and gave an inadequate
explanation of another factor, we believe
that this issue must be reexamined in its
entirety by the district court.
Accordingly, on remand, the court must
reassess whether reinstatement is an
appropriate remedy.
2. Front Pay
When reinstating a successful Title VII
plaintiff is not feasible, front pay is
usually available as an alternative
remedy. See Williams v. Pharmacia, Inc.,
137 F.3d 944, 951 (7th Cir. 1998). Front
pay is designed to place the plaintiff
"in the identical financial position that
he would have occupied had he been
reinstated." Avitia, 49 F.3d at 1231. A
plaintiff who seeks an award of front pay
must provide the district court "with the
essential data necessary to calculate a
reasonably certain front pay award."
McKnight, 973 F.2d at 1372. "Such
information includes the amount of the
proposed award, the length of time the
plaintiff expects to work for the
defendant, and the applicable discount
rate." Id. If the plaintiff fails to
provide this information to the district
court, the court will not abuse its
discretion if it denies his request for
front pay. See id.; see also Barbour v.
Merrill, 48 F.3d 1270, 1279 (D.C. Cir.
1995); Brooms v. Regal Tube Co., 881 F.2d
412, 424 n.9 (7th Cir. 1989), overruled
on other grounds, Saxton v. American Tel.
& Tel. Co., 10 F.3d 526, 533-34 (7th Cir.
1993); Coston v. Plitt Theatres, Inc.,
831 F.2d 1321, 1332-35 (7th Cir. 1987),
vacated on other grounds, 486 U.S. 1020(1988).
United has argued before this court that
Mr. Bruso waived his right to front pay
by failing to request such an award from
the district court. We are satisfied,
however, that Mr. Bruso raised this issue
sufficiently in the district court.
Although Mr. Bruso’s request for an award
of front pay was rather vague, the
district court was apparently aware of
the issue: the court explicitly stated in
its order denying equitable relief that
it did not believe front pay was
warranted. This treatment of the issue
was sufficient to preserve it on appeal.
However, we must conclude that Mr. Bruso
failed to meet his burden of providing
the district court with the data
necessary to calculate a reasonable front
pay award. We can find no indication in
the appellate record that Mr. Bruso
suggested the amount of an appropriate
award or submitted evidence indicating
how long he intended to work for United
or how the court should determine the
applicable discount rate. In accordance
with our prior precedent, we must hold
that the district court did not abuse its
discretion in refusing to award Mr. Bruso
front pay.
In any event, by failing to present any
reasoned argument on the issue on appeal,
Mr. Bruso has waived the issue in this
court.
3. Personnel Record
Mr. Bruso also asked the district court
to expunge from his personnel record all
references to United’s investigation into
his reports of Sporer’s sexual harassment
and any disciplinary action taken against
him as a result of those reports, so that
"his record will evidence only what it
would have if the unlawful employment
practice had not occurred." R.69 at 2.
Mr. Bruso also lodged a specific request
to have his UG 100 form amended so that
his record will not contain any reference
to his removal from management./9
Stating that it "refuse[d] to meddle with
United’s personnel matters," the district
court denied Mr. Bruso’s request. R.87 at
7. We believe that, in light of the
jury’s verdict in favor of Mr. Bruso on
his retaliatory demotion claim, the
district court abused its discretion in
denying Mr. Bruso’s request.
A district court is given broad
discretion to fashion an equitable remedy
that makes whole a plaintiff who has been
discriminated against by his employer.
See EEOC v. Gurnee Inn Corp., 914 F.2d
815, 817 (7th Cir. 1990). A court may use
expungement as a means of removing the
stain of the employer’s discriminatory
actions from the plaintiff’s permanent
work history. See, e.g., Sherkow v.
Wisconsin Dep’t of Pub. Instruction, 630
F.2d 498, 504 (7th Cir. 1980) (stating
that the district court properly ordered
the defendant to expunge from the
plaintiff’s personnel file a poor
performance evaluation written in
retaliation for the plaintiff’s public
exercise of her right to be free from
gender discrimination); cf. Knapp v.
Whitaker, 757 F.2d 827, 846-47 (7th Cir.
1985) (stating that after the jury found
that a school unlawfully had terminated a
teacher for engaging in constitutionally
protected speech, the district court
properly ordered that all documents
relating to the constitutionally
protected speech and the retaliatory
termination be expunged from the
teacher’s personnel record). By refusing
to expunge discriminatory or retaliatory
discipline from a successful plaintiff’s
personnel file, a court may force the
plaintiff to bear the brunt of his
employer’s unlawful conduct for the rest
of his working career, which certainly
contravenes the goal of making a
plaintiff whole through equitable
remedies.
Based on the state of the appellate
record in this case, we cannot tell
exactly what information Mr. Bruso’s
personnel file contains pertaining to his
retaliatory demotion. On remand, the
district court must examine Mr. Bruso’s
personnel record and order the
expungement of all reference to the
retaliatory demotion.
4. Injunctive Relief
Because Mr. Bruso is still working at
United, he asked the district court to
enjoin United from any further
retaliation against him or any other
United employee. The district court
denied this request because it found "no
evidence that United discourages it[s]
employees from complaining about unlawful
discrimination or that it engages in
systematic retaliation." R.87 at 6. The
court found it persuasive that United has
internal mechanisms in place to address
complaints of harassment, and found it
"of no moment" that "those mechanisms may
not be 100% effective." Id. at 7.
We previously have stated that a
successful discrimination plaintiff need
not demonstrate that his employer engages
in a pattern or practice of
discrimination in order to receive
injunctive relief. See EEOC v. Ilona of
Hungary, Inc., 108 F.3d 1569, 1578 (7th
Cir. 1997). In fact, a plaintiff need not
produce any evidence beyond that going to
his particular case before becoming
eligible for injunctive relief. See id.;
see also EEOC v. Harris Chernin, Inc., 10
F.3d 1286, 1292 (7th Cir. 1993) (citing
EEOC v. Goodyear Aerospace Corp., 813
F.2d 1539, 1544 (9th Cir. 1987), for the
proposition that the EEOC may not need to
produce evidence beyond that pertaining
to the individual on whose behalf it sued
in order to receive an injunction). The
relevant inquiry, then, is whether the
employer’s discriminatory conduct could
possibly persist in the future. See Ilona
of Hungary, 108 F.3d at 1578-79; see also
Dombeck v. Milwaukee Valve Co., 40 F.3d
230, 238 (7th Cir. 1994) (stating that
the district court would not abuse its
discretion by entering an injunction when
the employer would be free to assign the
harasser and the victim to the same
working area in the future); Gurnee Inn,
914 F.2d at 817 (holding that the
district court properly awarded an
injunction when it was possible that the
sexual harassment complained of might
persist in the future because the manager
who was aware of the harassment, but did
nothing to prevent it, was still employed
by the defendant); cf. Williams v.
General Foods Corp., 492 F.2d 399, 407
(7th Cir. 1974) (stating that injunctive
relief is inappropriate when there is
little likelihood that the discriminatory
practice will recur).
Mr. Bruso succeeded in persuading the
jury that he was the victim of a
retaliatory demotion. United offered no
evidence to indicate that it was unlikely
to retaliate further against Mr. Bruso in
the future. To the contrary, the
circumstances indicate that it is
possible that United could retaliate in
the future. Mr. Bruso is still working
for United at O’Hare. Sporer is no longer
employed at O’Hare, but King and
Strickland, the two individuals who were
most influential in Mr. Bruso’s demotion,
are still employed there. Although United
may have formal policies for reporting
and addressing harassment, the jury
concluded that King, Strickland, Gordon,
and potentially others ignored those
policies altogether when they chose to
demote Mr. Bruso. Contrary to what the
district court thought, it is of every
moment that United’s reporting policies
are not 100% effective: if United’s upper
echelon of management felt free to ignore
United’s policies in the past, there is
no reason to believe that those same
members of management will abide by them
in the future. Thus, an injunction
prohibiting further retaliation could
provide Mr. Bruso with the legal
protection to which the jury’s verdict
entitles him. Therefore, we conclude that
the district court abused its discretion
in refusing to award any injunctive
relief in light of the jury’s verdict in
favor of Mr. Bruso on his retaliation
claim. We remand this issue in order to
allow the district court to enter an
appropriate injunction.
D. Attorneys’ Fees
After the jury returned a verdict in
favor of Mr. Bruso, Mr. Bruso moved as a
prevailing party for an award of
attorneys’ fees. The lodestar figure Mr.
Bruso submitted, and the amount the
district court awarded him, was
$393,418.75. United now argues that this
amount was exorbitant in relation to the
$10,000 award Mr. Bruso received and the
$1.05 million award he requested from the
jury.
A prevailing party in a Title VII suit
is entitled to a reasonable award of
attorneys’ fees. See 42 U.S.C. sec.
2000e-5(k). The degree of a party’s
success can bear on the propriety of the
amount of the fee award. See Farrar v.
Hobby, 506 U.S. 103, 114 (1992). Because
we have concluded that the district court
erred in not submitting the issue of
punitive damages to the jury and in
failing to provide Mr. Bruso with any
form of equitable relief, we cannot
determine the true degree of Mr. Bruso’s
success in this litigation at this point
in time. Therefore, we express no opinion
on the propriety of the district court’s
fee award, as this issue will have to be
revisited following the proceedings on
remand.
Conclusion
For the reasons stated in this opinion,
we affirm the district court’s denial of
Mr. Bruso’s motion for a new trial on the
issue of damages and its refusal to award
front pay. We reverse the district
court’s decision insofar as it refused to
submit the issue of punitive damages to
the jury, refused to expunge Mr. Bruso’s
personnel record, and refused to grant
Mr. Bruso any injunctive relief. We
remand the issue of reinstatement for
further consideration. We express no
opinion on the propriety of the district
court’s award of attorneys’ fees to Mr.
Bruso. We remand this case to the
district court for further proceedings
consistent with this opinion.
AFFIRMED in part,
REVERSED in part,
and REMANDED
/1 Apparently, Mr. Bruso’s suspension was somewhat
unconventional. Mr. Bruso and Bolanowski testi-
fied that, to their knowledge, no employee had
ever been suspended for making an allegation of
sexual harassment.
/2 According to Bolanowski’s testimony at trial,
there were nine witnesses on the original list
that were never interviewed. Of those nine, eight
were women. The one male witness was the employee
who had told King that Sporer did not treat
female employees well.
/3 Mr. Bruso admits that the onset of his gallblad-
der condition was not related to his demotion.
/4 The following is an itemized list of the actual
damages Mr. Bruso asked the jury to award him:
$8,533.84 in lost wages as a result of his
demotion; $7,299 in lost wages for the time he
took off work in order to appeal his demotion;
$18,978 in lost wages as a result of the addi-
tional time he had to take of work in order to
recover from his gallbladder surgery; $1,361 in
union dues and equipment and uniform costs he had
to pay in order to begin work as a ramp service-
man; $2,643.50 he was unable to earn in overtime
once he was demoted; and $7,625 for his psycholo-
gist’s bills.
/5 The parties stipulated at trial that, if called,
Mr. Bruso’s physician would testify that, had Mr.
Bruso still held an administrative position, he
would only have needed to take two weeks off
following his gallbladder surgery rather than the
six months he ultimately took. However, the jury
was not bound by this stipulation, and it was
free to credit Mr. Bruso’s testimony of severe
pain over his physician’s testimony that he could
have returned to work rather quickly.
/6 See Romano v. U-Haul Int’l, 233 F.3d 655, 669
(1st Cir. 2000) (finding ample evidence to sup-
port the jury’s finding of reckless disregard
when the employee who ordered that the plaintiff
be fired was aware of his employer’s antidiscrim-
ination policies); Ogden v. Wax Works, Inc., 214
F.3d 999, 1010 (8th Cir. 2000) (finding that the
jury could reasonably conclude that a supervisor
acted in the face of a perceived risk that his
actions would violate federal law when he testi-
fied that he was familiar with his employer’s
antidiscrimination policy and had received exten-
sive training on the antidiscrimination laws);
Lowery v. Circuit City Stores, Inc., 206 F.3d
431, 443 (4th Cir. 2000), cert. denied, 68
U.S.L.W. 3775 (U.S. Oct. 2, 2000)
(No. 99-1998) (finding sufficient
evidence to support the jury’s
award of punitive damages when the manager who
discriminated presumably knew of the federal
antidiscrimination laws, because the employer
required all managers to attend a training ses-
sion on them); EEOC v. Wal-Mart Stores, Inc., 187
F.3d 1241, 1246 (10th Cir. 1999) (finding a suf
ficient evidentiary basis for the jury’s award of
punitive damages when the store manager who
approved the plaintiff’s suspension testified
that he was familiar with the ADA and its prohi-
bition against discrimination).
/7 See Romano, 233 F.3d at 670 (holding that a
written nondiscrimination policy was insufficient
to insulate an employer from punitive damages
liability when the employer failed to demonstrate
that it had attempted to implement the policy by
educating its employees or actively enforcing its
mandate); Cadena v. Pacesetter Corp., 224 F.3d
1203, 1210 (10th Cir. 2000) ("[E]ven if an em-
ployer-defendant adduces evidence showing it
maintains on paper a strong non-discrimination
policy and makes good faith efforts to educate
its employees about that policy and Title VII, a
plaintiff may still recover punitive damages if
she demonstrates the employer failed to adequate-
ly address Title VII violations of which it was
aware."); Ogden, 214 F.3d at 1010 (finding that
an employer’s written sexual harassment policy
did not constitute a good faith effort at compli-
ance when the employer minimized the plaintiff’s
complaints of harassment, conducted a cursory
investigation which focused on the plaintiff’s
performance rather than the harasser’s conduct,
and forced the plaintiff to resign without impos-
ing any discipline on the harasser); Passantino
v. Johnson & Johnson Consumer Prods., Inc., 212
F.3d 493, 517 (9th Cir. 2000) ("[A]n employer
must show not only that it has adopted an anti-
discrimination policy, but that it has implement-
ed that policy in good faith."); Lowery, 206 F.3d
at 446 (stating that an employer’s commitment to
its written antidiscrimination policy was called
into doubt by racially discriminatory attitudes
of top executives and the implementation of a
promotional system designed to hide race discrim-
ination in promotions); Deffenbaugh-Williams v.
Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th
Cir. 1999) (holding that Wal-Mart’s policy of
encouraging employees to contact management about
perceived discrimination did not prevent an award
of punitive damages when Wal-Mart failed to
respond effectively to the plaintiff’s complaints
by promising her that it would look into her
concerns but instead fired her on pretextual
grounds).
/8 We note that other circuits have held that, even
after Kolstad, a Title VII plaintiff may obtain
punitive damages by showing that the corporate
officers who made the discriminatory employment
decision were sufficiently senior to be consid-
ered proxies for the company. See Passantino, 212
F.3d at 517; Deters v. Equifax Credit Info.
Servs., 202 F.3d 1262, 1271 (10th Cir. 2000).
/9 Mr. Bruso explained that a UG 100 form is a
"green and white sheet which contains everything
there is to know about you." R.111-5 at 853. Mr.
Bruso’s UG 100 form indicated that he earned
$3,163 per month as a supervisor and only $16.49
per hour as a ramp serviceman. There was an
additional UG form that indicated that United was
"’returning [Mr. Bruso] to last nonmangement
company at company request.’" R.111-5 at 854
(testimony of Mr. Bruso).