Tullis, William G. v. Townley Eng & Mfg Co ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3313
William G. Tullis,
Plaintiff-Appellee,
v.
Townley Engineering & Manufacturing Co., Inc.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-4287-JLF--James L. Foreman, Judge.
Argued February 15, 2001--Decided March 16,
2001
Before Flaum, Chief Judge, and Bauer and
Rovner, Circuit Judges.
Flaum, Chief Judge. Townley Engineering
& Manufacturing Company, Inc. ("Townley")
is appealing the jury verdict in favor of
William G. Tullis concerning a
retaliatory discharge claim under the
Illinois Workers’ Compensation Act. For
the reasons stated herein, we affirm.
I. Background
Townley hired William G. Tullis in
February of 1992 at its Eldorado,
Illinois plant for the position of
"sandblaster." The company manufactures
and supplies products used in mining and
coal-fired power plants. After occupying
the position of sandblaster for
approximately 18 months, Tullis was
assigned to the production job known as a
"jigger" in the summer of 1993. In this
position, Tullis assembled and
manipulated objects of varying size and
weight, preparing them for the
application of a urethane lining. During
the morning of January 25, 1996, Tullis
sustained a back injury while lifting a
mold. He was taken to a hospital
emergency room and was told not to return
to work on that day or the next. The
physician assistant also advised Tullis
to rest for 72 hours and to make an
appointment for that Monday, January 29
with his doctor. On that day, Tullis went
to see his family physician, Dr. Cserny,
and was given a work slip which said,
"Patient advised to remain on light duty
from 1-30 to 2-2 of ’96 and resume usual
activities." Tullis returned to work on
January 30 and was placed on light duty.
The very same day, a work-related
accident report was prepared and filed
with the State and Townley’s workers’
compensation insurer to allow Tullis to
receive payment of his medical bills.
During the months of February, March, and
April Tullis remained on light duty at
various times as a result of his injury.
Because of continued back pain, Dr.
Cserny referred Tullis to Dr. Cannon, a
neurosurgeon for an evaluation and
possible treatment in June. Dr. Cannon
diagnosed Tullis’ condition as
musculosketal pain and recommended
physical therapy. Upon completion of
physical therapy and an MRI, Dr. Cserny
on July 18, 1996 gave Tullis a
physician’s work slip that said he was
able to resume full duty. The day Tullis
received this work release, he gave it to
Virgil Sanders, Townley’s Eldorado
general manager, and it was agreed that
Tullis could return to his regular duties
as a jigger with the instruction that he
could do whatever made him feel
comfortable.
Less than six weeks later, on August 27,
Tullis called the company and said that
he would not be at work because he was
going to see his doctor concerning back
pain. After a visit with Dr. Cserny,
Tullis spoke with Sanders and read him
the contents of a work slip that Dr.
Cserny provided him that stated he could
not return to his present job because of
his back pain, but he could do lighter
duty work. At this point, Sanders’ and
Tullis’ versions of what transpired
diverge. Tullis claims that he read
Sanders the note from Dr. Cserny, which
said he probably needed to change jobs
and do lighter duty work. In what Tullis
perceived as a "firmer type response,"
Sanders said, "Bill, we have nothing else
lighter. The doctor says you can’t do
this and that and [we] really have
nothing you can do except lay you off and
let you draw unemployment. That way you
would still have some type of income."
Sanders, however, qualified this
statement by stating that he would call
the main office in Florida to see how it
wanted to proceed and it was agreed that
Tullis would call Sanders the following
day about his situation. In hopes of not
being terminated, Tullis asked Sanders if
there was the possibility that he could
be transferred to the rubber plant in
Harrisburg, Illinois, stating that he
wanted and was willing to work. As per
their arrangement, Tullis called Sanders
on August 28 and Sanders said that he had
not found anything out yet from the
Florida office, but that all he could do
was lay off Tullis so that he could
receive unemployment, ensuring that
Tullis would have some type of income. On
August 29, Tullis contends that he once
again called Sanders about his status and
received basically the identical answer
from Sanders as he had gotten the day
before. Consequently, on August 30, he
filed for unemployment benefits because
he believed that he had been laid off.
Sanders recalls the exchanges between
himself and Tullis differently. He
remembers Tullis saying that despite Dr.
Cserny finding nothing wrong with his
back, he still experienced pain. He
therefore wanted to know if there was a
lighter duty job available. According to
Sanders, he instructed Tullis to report
to work the following day. Nevertheless,
Sanders requested that Tullis call him
the next day, because he was going to the
corporate offices in Florida then, and
would talk to Toro Townley, the president
of the company, about finding Tullis a
lighter job in an area other than
production. Sanders denies ever having
communicated to Tullis that he would be
laid off and could draw unemployment. As
for the August 28 conversation, Sanders
claims that he told Tullis that he had
not been able to talk with Townley yet,
but he agreed to call him if he could
find a position available for him outside
of the production area. According to
Sanders, he never spoke with Tullis on
August 29.
Sanders stated that he finally spoke
with Toro Townley on August 31 about
Tullis’ situation. He informed him that
Tullis had a problem with his back and
needed something lighter to do. Sanders
characterized Tullis as a "fairly good
worker," but reported to Toro Townley
that he had not heard from Tullis since
August 28. Townley then stated, "If he
hasn’t reported in it sounds like he has
quit." Sanders inquired with Townley
about whether that was the approach he
desired to take and Toro Townley said it
was since it was Tullis’ "responsibility
to call us." According to Sanders,
Townley had in place a policy that an
employee is considered to have quit if he
or she is absent for three days without
notifying the company. Sanders dictated a
memo that stated that Tullis was
dismissed as of August 30 because he
failed to report to work on more than
three consecutive days.
Tullis filed an application for
adjustment of a workers’ compensation
claim on September 16 and Sanders was
informed of this adjustment request
shortly after it was received by Townley
in early October./1 During this same
time period, on September 10, Townley
filed an objection to Tullis’
unemployment insurance claim. In November
of 1996, Tullis called Sanders and
advised him that he had obtained a full
medical release and that he was ready to
return to work. According to Tullis,
Sanders said, "the last time we heard
from you was in August. The next thing we
know we are getting a letter from a
lawyer. You’re suing us."/2 According
to Sanders, he told Tullis that he did
not have a position available for him.
Tullis claims that Sanders said he would
call him if a position became available.
Nonetheless, since Tullis left in August
of 1996, the company had filled vacancies
and re-hired other employees who had
quit. Tullis was never contacted about a
job opening.
Tullis brought an action against
Townley. In Count I, he claimed that he
was discriminated against in violation of
the Americans with Disabilities Act
("ADA"). In Counts II and III, he argued
that he was retaliated against for
exercising his rights under Illinois’
Workers’ Compensation Act (based upon
supplemental jurisdiction),/3 and sought
compensatory (Count II) and punitive
(Count III) damages. Tullis’ claims went
to the jury. On his ADA claim, the jury
returned a verdict for the defendant.
With regard to the retaliatory discharge
claim (Count II), the jury returned a
verdict for Tullis and awarded him
$15,925.04 in lost wages and $80,185.68
as nonpecuniary damages for "mental
anguish and inconvenience." His claim for
punitive damages (Count III) was
dismissed as a matter of law. Townley
then made a motion for judgment as a
matter of law, or in the alternative, a
motion for a new trial, both of which the
district court denied. Townley now
appeals seeking that we grant a new trial
with regard to the retaliation claim.
Townley also requests that we grant a new
trial or remittitur with regard to the
$80,185.68 judgment for nonpecuniary
damages.
II. Discussion
A. Retaliatory Discharge Claim
When considering a motion for a new
trial based on the sufficiency of the
evidence, we grant such a request only if
the verdict is against the manifest
weight of the evidence. See Lowe v.
Consolidated Freightways of Del., Inc.,
177 F.3d 640, 641 (7th Cir. 1999); Riemer
v. Illinois Dep’t of Transp., 148 F.3d
800, 806 (7th Cir. 1998). We review a
district court’s application of this test
in a deferential manner. Lowe, 177 F.3d
at 641; Riemer, 148 F.3d at 806. A
district court’s denial of a motion for a
new trial will be reversed only upon a
showing that the court abused its
discretion. Id. We will not set aside a
jury verdict if there exists a reasonable
basis in the record to support the
verdict. See Jackson v. Bunge Corp., 40
F.3d 239, 244 (7th Cir. 1994).
Under Illinois law, a valid retaliatory
discharge claim requires a showing that:
(1) an employee has been discharged; (2)
in retaliation for the employee’s
activities; and (3) that the discharge
violates a clear mandate of public
policy. See Hartlein v. Illinois Power
Co., 601 N.E.2d 720, 728 (Ill. 1992).
More specifically, in a workers’
compensation situation, a plaintiff must
show that he or she: (1) was the
defendant’s employee before his or her
injury; (2) exercised a right granted by
the Workers’ Compensation Act; and (3)
was discharged from his or her employment
with a causal connection to his or her
filing a workers’ compensation claim. See
Kritzen v. Flender Corp., 589 N.E.2d 909,
915 (Ill. App. 1992). "The element of
causation is not met if the employer has
a valid basis, which is not pretextual,
for discharging the employee." Hartlein,
601 N.E.2d at 728.
Townley argues that Tullis has not
proven that his discharge was causally
linked to the exercise of his rights
protected under the Illinois Workers’
Compensation Act. According to Townley,
Tullis presented no direct evidence to
support his retaliatory discharge claim.
Instead, he relied upon circumstantial
evidence, such as that of David Fox,
Tullis’ supervisor, who documented
Tullis’ departures from light duty
restrictions (failing to wear his back
brace and swinging a sledgehammer)
because he thought the information may be
relevant to a workers’ compensation claim
that Tullis might file in the future.
Although Tullis believes this is evidence
of Townley’s animus toward a worker’s
right to make a compensation claim,
Townley contends that there is no
Illinois law prohibiting an employer or
its carrier from challenging the nature
and severity of a worker’s claim of
injury. Moreover, Tullis maintained that
Townley’s internal memoranda had
variances regarding when Tullis quit
because he failed to report for work. The
Eldorado plant’s memorandum showed that
Tullis was terminated as of August 30,
while Townley’s Florida home office
records show Tullis as having been
terminated as of August 27. According to
Tullis, such a discrepancy reveals that
the company’s reason for terminating
Tullis was pretextual and evidence of an
illegal purpose. Townley argues that the
internal inconsistencies between the
Eldorado plant and the company’s home
offices in Florida about when Tullis was
terminated is a result of incomplete
and/or miscommunication between the two
offices and not a scheme to harm Tullis.
Additionally, Townley claims there is no
evidence that Townley actually had a
motive to punish Tullis, and in August of
1996, he had no pending workers’
compensation claim. Townley asserts that
Tullis already was receiving benefits and
had been since January of 1996. According
to Townley, Tullis does not dispute that
he took no action in August of 1996 to
suggest or inform Townley that he
intended to file an application for
adjustment of his workers’ compensation
claim. Therefore, Townley asserts that it
had no reason to anticipate or expect in
August that Tullis would demand such an
adjudication of his claim in the
following month or any time in the near
future. For the six months during which
Tullis was on light duty, Townley allowed
him, without any objection, paid time off
to receive medical treatment. According
to Townley, no one ever said or
discouraged Tullis from seeking an
adjustment of his workers’ compensation
claim or that if he did he would suffer
any consequences. Townley further asserts
that it is speculation on the part of
Tullis that he was being punished for
filing workers’ compensation claims.
Townley proposes that we should adopt
the reasoning of Horton v. Miller Chem.
Co., 776 F.2d 1351 (7th Cir. 1985). In
that case, a jury returned a verdict in
favor of the plaintiff for a retaliatory
discharge claim under the Illinois
Workers’ Compensation Act, the district
court refused to grant a judgment
notwithstanding the verdict ("j.n.o.v."),
and we reversed the trial court’s
decision. In Horton, the plaintiff
claimed that he was referred to as "a bad
risk" because the company believed that
he might seek additional compensation
under the Act. Id. at 1357. This was per
ceived as rather "scant" evidence,
especially when one considered the other
evidence presented. Id. Townley argues
that as was the case in Horton, id.,there was no evidence presented that any
employees said anything to Tullis about
filing a workers’ compensation claim,
Townley did not oppose his pursuit of his
rights under the Act, and he was given
time off of work to receive medical
treatment. Accordingly, Townley contends
that Sanders’ statement about "You’re
suing us" in and of itself cannot lead to
an inference that Townley retaliated
against Tullis, as Horton warns.
Townley claims that Miller v. J.M. Jones
Co., 587 N.E.2d 654 (Ill. App. 1992), is
another case that reveals that Tullis’
retaliatory discharge case is not viable.
Miller too pursued a retaliatory
discharge claim and at the close of
presenting his case, the court ordered a
directed verdict in favor of the
defendant, which the appeals court
upheld. Despite Miller’s claim that a
supervisor told him that the company was
"trying to break him" by assigning him to
a particular job, the court remained
unconvinced that this evidence showed an
intent on the company’s part to interfere
with Miller’s rights under the Workers’
Compensation Act. Id. at 660. Townley
contends that Sanders’ statement was
"mild and tangential" compared to the one
in Miller. Townley believes that the jury
rested its decision on the disbelief of
the denials of Townley’s witnesses, and
as a consequence, determined Tullis was
retaliated against for asserting his
rights under the Workers’ Compensation
Act. See id. ("Although a jury decides
questions of credibility, a jury will not
be allowed to rest a decision for
plaintiff entirely on its disbelief of
the denials made by defendant’s
witnesses."). Townley, as discussed
earlier, argues that it never interfered
with Tullis’ ability to pursue his
benefits, which was also the case in
Miller, id. Even the president of
Townley, Toro Townley, said that in the
37 years of the company’s operation, it
had never been sued with regard to a
workers’ compensation claim. See id.("The fact that defendant did not
retaliate against other employees who had
filed workers’ compensations claims
should also be given weight."). Townley
contends that Miller supports its
position that Tullis has failed to
successfully make out a retaliatory
discharge case.
Finally, Townley would like us to
consider Hiatt v. Rockwell Int’l Corp.,
26 F.3d 761 (7th Cir. 1994), in which we
reversed the district court and granted a
j.n.o.v. with regard to Hiatt’s
retaliatory discharge claim under the
Illinois Workers’ Compensation Act. In
that case, the Court said that even if it
assumed that Hiatt’s supervisor harbored
animosity toward his pending workers’
compensation claims, "Hiatt still bore
the burden of proving that this animosity
played a causal role in his termination.
This he has not done." Id. at 769. As a
result, Hiatt did not show "that those in
charge of his actual discharge possessed
an impermissible ulterior motive." Id.Townley argues that Tullis has not shown
that it possessed an "impermissible
ulterior motive," id., when it terminated
Tullis and decided not to rehire him.
Tullis, without notifying the office, did
not report to work for three days, and as
per company policy, Townley terminated
him. Tullis’ back injury played no role,
according to Sanders, in his decision not
to rehire Tullis. What was important to
him was that he "felt [he] had went above
and beyond [his] call of duty" by
allowing Tullis to come to work to do "as
little as he possibly could do" and
offering to talk with Toro Townley about
finding another position for him outside
the production area. What upset Sanders
was that Tullis never called the office
to say he would not be working and he
never even called a week later or at that
point brought in a doctor’s note. Sanders
decided not to rehire Tullis because he
expressed, "I’m honest with my workers. I
treat them with respect. I expect the
same kind of treatment in return and
that’s all I ask of my people." Townley
asserts that it provided a credible
explanation for why it did not rehire
Tullis and he provided no evidence to
counter Townley’s witnesses’ testimony
that the company was not motivated to
terminate him in any way by his filing
for an adjustment of his workers’ compen
sation benefits.
While Townley raises several reasons as
to why a new trial would be appropriate
in this case, its position is not a
prevailing one. This was, as the district
court acknowledged during the trial, "a
very close case" on the issue of retalia
tion. However, the retaliatory discharge
claim was before the jury, it found in
favor of Tullis, and the district court
denied Townley’s request for a new trial
on the issue. At this stage in the
process, we have to assess whether there
is a reasonable basis in the record to
support the jury’s verdict. The record
does provide us with evidence that the
jury could have relied upon to determine
that Townley discharged Tullis in
retaliation for his workers’ compensation
claim. We begin by reviewing the manner
in which Tullis came to no longer work at
Townley. Townley stressed that it had in
place a policy that an employee would be
terminated if he or she failed to notify
the office on more than three consecutive
days that he or she would be absent and
Tullis allegedly violated said policy.
The employee handbook states in
contradiction that "You will
automatically be deemed to have quit,
without notice, if you are absent more
than one day without promptly reporting
to the company an acceptable reason for
the absence." Toro Townley explained that
although the handbook may indicate that
the company does not even allow for a
one-day absence without notice, "That
policy has been changed and is not in
writing, but it’s well known throughout
our company." David Fox, a supervisor who
had worked for Townley since 1983, said
that he did not believe he was familiar
with the policy that if you missed three
consecutive days of work without calling
in that you were terminated. Fox’s testi
mony may have raised doubts about the
legitimacy of the company’s termination
policy and in turn its reliance upon this
purported policy to terminate Tullis.
Townley argues that it terminated Tullis
because he failed for more than three
consecutive days to notify anyone that he
would be absent from work. Tullis argues
that he did converse with Sanders on
August 27, 28, and 29, but as of August
27 Tullis believed that he had been laid
off. He said that he did not call the
plant on August 28 to say that he would
be absent because he thought there "was
no need to" do so considering he was laid
off. Once again, there is conflicting
evidence concerning why Tullis left his
job at Townley. Indeed, Sanders himself
said that he "had no idea" whether Tullis
had quit or not, nor did he ever contact
Tullis to find out why he had not come to
work on August 28, 29, 30, and beyond. He
acted in this manner despite the fact he
thought Tullis was a good worker. Tullis
testified that no one ever contacted him
to inform him that he was terminated. All
of this testimony combined may have led
the jury to be suspicious about why
Townley, without any apparent hesitation,
decided to enforce its attendance policy
against Tullis.
Other evidence was presented that may
have further caused the jury to doubt
Townley’s motive. For instance, Townley
claimed that it had never discriminated
against an employee for seeking workers’
compensation benefits. This statement may
have seemed a bit hollow in light of the
fact Toro Townley admitted that no other
employee had ever filed an application
for adjustment of a workers’ compensation
claim. Once more, Toro Townley was well
aware when he was discussing with Sanders
terminating Tullis because he had
violated the company’s alleged attendance
policy, that there was a "possibility"
that Tullis might file for adjustment of
his workers’ compensation claim. David
Fox, the supervisor of the plastic shop,
made the following notations about
Tullis’ behavior: (1) in May he had told
Tullis to put on his belt (a back brace)
after he saw him rolling out molds
without it, and (2) during June he was
told that Tullis was observed swinging a
sledge hammer and lifting heavy objects.
Fox acknowledged that he made these notes
because he believed that Tullis might
file a workers’ compensation claim
sometime in the future and he wanted to
document his behavior in the event it was
necessary to challenge him with such
information. The jury may well have been
left with the impression that Townley was
conscious of Tullis’ right to file an
adjustment of his workers’ compensation
claim and that this motivated the company
to either lay off or terminate him based
upon its attendance policy.
As for Townley’s failure to hire Tullis
in November of 1996, there was also
evidence in the record to support the
proposition that the company based its
decision upon Tullis’ filing for an
adjustment of his workers’ compensation
benefits. When Tullis told Sanders that
he could return to work, Tullis claims
that Sanders said, "[T]he last time we
heard from you was back in August. The
next thing we know we are getting a
letter from a lawyer. You’re suing us."
His tone according to Tullis was angry
and unfriendly. According to Tullis,
Sanders said he would call him if a job
opening became available and he never did
so. Sanders hired other people to fill
vacancies and there was no evidence
presented that the company did not have a
vacancy suitable for Tullis. The comment
about Tullis suing Townley made by
Sanders along with his behavior after
Tullis inquired about a job reasonably
could have led the jury to believe that
Townley did not rehire Tullis because he
filed a workers’ compensation claim.
This case is distinguishable from
Horton, Miller, and Hiatt. As evidenced
by the preceding discussion, this case is
not like Horton or Miller, in that it
does not center around one particular
comment with no supporting facts or
completely fails to suggest an
"impermissible ulterior motive," as was
the case in Hiatt, 26 F.3d at 769. During
the trial, there was conflicting evidence
presented about why Tullis stopped
working for Townley. In addition, there
was evidence that David Fox was keeping
notes about Tullis’ work habits in case
of a workers’ compensation claim and Toro
Townley was well aware that Tullis had
the right to file for an adjustment of
his claim when he decided to terminate
him. In the end, the case centered
largely around credibility
determinations, and it is within the
purview of the jury to make such
determinations. The jury reasonably could
have ascertained based on the record that
Townley terminated Tullis in August when
it had the chance to do so because it no
longer wanted to deal with his recurrent
back problems and attendant workers’
compensation claims. In addition, based
on the evidence, the jury could have rea
sonably found that Townley did not rehire
Tullis because it was upset that Tullis
pursued an adjustment of his claim.
Unlike in Horton and Miller, Sanders’
comment more clearly referred to Tullis’
adjustment claim and thus provided the
jury with the opportunity to make the
connection that Tullis was not rehired
because he pursued such a claim.
Furthermore, the jury could have taken
into account the manner in which Townley
handled Tullis’ absences in August and
eventual termination as shedding light
upon its decision not to rehire Tullis.
In this case, the jury based on the
record reached a reasonable conclusion
that Townley terminated and/or refused to
rehire him in November of 1996 because he
filed an adjustment claim for his
workers’ compensation benefits./4
Therefore, we will not find that the
district court abused its discretion when
it allowed the jury verdict to stand.
B. Compensatory Damages
Townley contends that the $80,185.68
nonpecuniary damages jury award for
"mental anguish and inconvenience" was
the product of passion and prejudice and
so it requests a new trial or reduction
of the damages through remittitur.
Townley is concerned about the massive
and excessive size of the jury award. The
district court reviewed Townley’s request
for a new trial based upon the
nonpecuniary damage award and determined
that the award should be upheld. We
review the district court’s refusal to
grant a new trial on the basis that the
damages the jury awarded were excessive
for an abuse of discretion. See Riemer,
148 F.3d at 808.
When we review a compensatory damages
award, we employ the following three-part
test: (1) whether the award is
monstrously excessive; (2) whether there
is no rational connection between the
award and the evidence; and (3) whether
the award is roughly comparable to awards
made in similar cases. Id. Townley
argues that the jury award for $80,185.68
fails all three prongs of this test.
Specifically, Townley claims that the
award is monstrously excessive because it
is based exclusively upon Tullis’ own
testimony. No physician or other
professional testified that Tullis
suffered psychologically from Townley’s
conduct nor did Tullis or a family
member, friend, or other lay witness
testify to his emotional injury. Instead,
Tullis said that he felt "low" and
"degraded" by his employer’s conduct in
August of 1996 and "back-stabbed" when
the company opposed his unemployment
compensation. He stated that he
experienced "financial difficulties" as a
result of his unemployment, such as:
difficulties in paying utility bills,
borrowing money from family or friends,
falling behind in payment of child
support, an inability to obtain new
school clothes for his children, and to
take his children "to do the Wal-Mart,
McDonald[’s] thing." Townley asserts that
Tullis’ testimony was not very detailed
and thus does not support the award.
Further, Townley notes that Tullis did
not claim that he suffered from periodic
depression, fits of anger, or other
physical symptoms. According to Townley,
all of this combined displays that
Tullis’ award for mental anguish and
inconvenience was monstrously excessive.
Townley also maintains that the award is
not rationally related to the evidence
and that Tullis did not make a specific
request with regard to compensatory
damages; rather he asked the jury to "do
what’s fair." Townley argues that the
problem is that the evidence does not
support the amount awarded. For instance,
in Avitia v. Metropolitan Club of
Chicago, Inc., 49 F.3d 1219, 1229-30 (7th
Cir. 1995), the court found damages for
$21,000 because of emotional distress
were excessive, even though the plaintiff
in that case cried as a result of being
discharged from a job that he had been at
for 13 years and experienced such
distress several years after he had been
fired. Tullis, according to Townley, has
provided far less compelling evidence
regarding the intensity and duration of
his emotional distress. Similarly, in
Fleming v. County of Kane, 898 F.2d 553,
561-62 (7th Cir. 1990), the Court found a
$40,000 award, which had been reduced to
this figure from the jury’s amount of
$80,000 by the trial court, was proper.
The plaintiff in Fleming had been
discharged for his whistle-blowing
activities. Fleming testified to feelings
of embarrassment, humiliation, certain
depression, serious headaches, and
sleeplessness. His wife and fellow
department employees supported his
testimony concerning his physical and
emotional condition. Once again, Townley
asserts that Tullis did not provide
nearly the same type of evidence as was
presented in Fleming, yet he received a
substantially greater award, and these
cases suggest that Tullis’ nonpecuniary
damage award is not rationally related to
the evidence that he presented.
Finally, Townley advances that the jury
award is not comparable to awards in
similar cases. As previously discussed,
the award in this case is larger than in
Avitia, 49 F.3d at 1230 ($10,500 award
after remittitur), and Fleming, 898 F.2d
at 561-62 ($40,000 award). While it may
be true that in Kasper v. Saint Mary of
Nazareth Hosp., 135 F.3d 1170, 1174 (7th
Cir. 1998), a compensatory damage award
for a retaliatory discharge claim in the
amount of $150,000 was upheld, this was
because the award was not challenged.
Similarly, in Jackson, 40 F.3d at n.5, a
case involving a retaliatory discharge
claim under the Illinois Workers’
Compensation Act, the parties agreed to
compensatory damages in the amount of
$75,000. Finally, in Peeler v. Village of
Kingston Mines, 862 F.2d 135 (7th Cir.
1988), the court addressed a $50,000
award for emotional distress based upon a
retaliatory discharge claim. In that
case, the evidence presented relayed
"[p]oignant scenes of distress and
abysmal poverty," while the plaintiff was
unemployed. Id. at 138. There, the
plaintiff was evicted from his house,
forced to live in a truck for three days,
depended in part on charity to feed his
family, used rags to diaper his child,
friends donated clothes for his five
children, could not afford a doctor when
his children were sick, and suffered
health problems. Townley argues that
Tullis’ experience does not rise nearly
to this level and thus $80,185.68 is
simply not warranted.
The record in this case, despite
Townley’s assertions, indicates that the
evidence presented at trial supports the
$80,185.68 jury award for mental anguish
and inconvenience. Tullis testified that
he "felt low" and "degraded" as a result
of being laid off from Townley. He
described himself as someone who worked
for Townley for five years with "total
dedication" and "[d]one whatever they
asked me." However, he said, "There was
one minor incident with my back and it
was like I was useless to them anymore. I
wasn’t what I was. I was a hassle. They
had to have people watching me to see if
I made any wrong moves. [I] just felt
totally degraded and totally like all I
done there was useless." Then, when the
company opposed Tullis’ unemployment, he
stated that he felt "back-stabbed" and
had trusted Townley up until that point
and "told them everything that was going
on." When he learned that he was going to
be laid off and would get his first
check, he described this turn of events
as, "I was starting to get back in some
sort of rhythm of my life again and wham,
they just stopped it [by opposing the
unemployment]." It was at this point that
Tullis sought the assistance of a lawyer
and filed for an adjustment of his
workers’ compensation claim. From
December 1, 1996 through October of 1997,
Tullis did some "odd and end jobs" and
earned approximately $600 to $700. During
this nine- or ten-month period, he
testified that the financial difficulties
he experienced included, "We had trouble
keeping our utility bills paid. We had to
get the phone sometimes shut off or
lights shut off momentarily, gas.
Borrowing money from friends or
relatives, mainly relatives. My child
support got behind and ended up costing
me a lot later on down the line. And the
kids weren’t able to get the new school
schools. They weren’t able to do the Wal-
Mart, McDonald[’s] thing. Just things
were changed to a lower type of income."
Although Tullis tried to find a job in
the area of southern Illinois, which
presumably is within the vicinity of his
home, the only position he could obtain
that paid him as much as his job at
Townley was as a truck driver.
Although Townley characterizes Tullis’
testimony regarding his emotional
distress and inconvenience as relatively
meager and scant, the jury obviously did
not perceive it this way considering the
award they granted Tullis. An award for
nonpecuniary loss can be supported, in
certain circumstances, solely by a
plaintiff’s testimony about his or her
emotional distress. See Merriweather v.
Family Dollar Stores of Ind., Inc., 103
F.3d 576, 580 (7th Cir. 1996). "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." Bruso v. United Airlines,
Inc., 239 F.3d 848, 857 (7th Cir. 2001).
The jury was able to observe Tullis when
he was testifying and they apparently
found his testimony to be sincere and
sufficient to convince them that he
merited the award they gave him.
The jury, as seen by the amount they
awarded Tullis, which some may even
characterize as exceedingly generous,
must have not believed that Tullis needed
to show that he sought the help of
psychologists or friends for his
emotional distress or that he was
required to provide more detail about
either his emotional distress or the
inconvenience that he experienced.
Tullis’ testimony did reveal he felt
"low" and "degraded" when he was laid off
and "back-stabbed" when the company
opposed his unemployment claim. He also
said that he was without work for nine to
ten months, and this affected his
personal life, including that he had to
borrow money from family and friends and
he had his lights and phone shut off. The
jury could have determined that these
were not minor events. The jury also may
have taken into account that his family
life was disrupted in that he was not
able to buy his children new schools
clothes, pay his child support, or take
his children out dinning and shopping.
Tullis also did find a new job, but it
was as a trucker, which required him to
be away from home, and he even said that
Townley "was a very convenient place for
[him] to work at because it was close to
the house. It was five minutes from the
house." The jury may very well have found
that these types of changes were
significant to Tullis’ family situation.
Because it is within the jury’s domain to
assess the credibility of witnesses,
specifically in this case the testimony
of Tullis, we cannot find that the award
was monstrously excessive or not
rationally connected to the evidence.
Further, since we have determined that
the verdict was supported by the
evidence, then necessarily it was not a
result of passion and prejudice. See
Slane v. Mariah Boats, Inc., 164 F.3d
1065, 1068 (7th Cir. 1999).
Thus, our remaining task is to examine
"whether the award is out of line with
other awards in similar cases." Fleming,
898 F.2d at 561. Townley cites Avitia, 49
F.3d 1219 and Fleming, 898 F.2d 553, as
cases that are roughly comparable and
resulted in damage awards that were not
nearly as substantial as the award in
this case. Avitia, however, involved
emotional distress only and not
inconvenience. 49 F.3d at 1227-30.
Similarly, in Fleming the damages
concerned emotional distress, and unlike
in this case, we affirmed the trial
court’s determination that a remittitur,
reducing the damages to $40,000, was
appropriate. See 898 F.2d at 561-62. More
recently, we affirmed without much
commentary, a $50,000 compensatory award
(presumably for emotional distress) for
retaliatory discharge brought under the
Illinois Workers’ Compensation Act. See
Slane, 164 at 1068. The most troubling
case presented by Townley with regard to
the issue is Peeler, 862 F.2d at 139, in
which rather egregious facts led to the
affirmation of a $50,000 compensatory
award for the plaintiff. One must
remember that this jury award is from
1988 and the current dollar value of this
award is greater than $50,000; it is
worth approximately $70,000 in 1999, see
Statistical Abstract, Table 768. The
Peeler award is roughly comparable to
Tullis’ compensatory damage award, if one
takes into account the jury’s right to
make awards based upon its view of a
witness’s demeanor and credibility. We
cannot conclude that $80,185.68 is not
roughly comparable to the small number of
similar cases (albeit in most instances
distinguishable) that we have discussed.
Therefore, we affirm the district court’s
decision not to grant a new trial or
remittitur on the issue of the $80,185.68
compensatory damage award.
III. Conclusion
We Affirm the district court’s decision
not to grant a new trial on the
retaliatory discharge claim and its
decision not to grant a new trial or
remittitur for the $80,185.68
compensatory damage award.
/1 An injured employee seeking an Application for
Adjustment of Claim for his or her workers’
compensation benefits must file such a claim with
the Illinois Industrial Commission. After an
employer receives this document, it must file
with the Commission a written admission or denial
of the employee’s allegation that the claim is
covered. See 820 ILCS 305/1.
/2 Sanders referred to Tullis’ application for
adjustment of his workers’ compensation as a
lawsuit, but as Toro Townley explained, "Well, I
don’t think anybody likes being sued, but I don’t
view this as being sued. This is really an
application for adjustment to a workers’s
compensation claim through our insurance, which
I don’t view that in itself as a lawsuit. We pay
good money for our insurance premiums, and I
expect our people to be compensated when they are
injured, be it for their medical expense or be it
for their lost time from work." However, Toro
Townley did testify that the more the claim, the
more the bills, the more the amount is paid to an
employee for workers’ compensation, and the
higher the premium Townley would pay for
insurance. Clearly, although Tullis’ filing an
application was not a direct lawsuit against the
company, it did have the potential to affect the
company’s insurance premiums.
/3 The Act provides, 820 ILCS 305/4(h):
It shall be unlawful for any employer, insurance
company or service or adjustment company to
interfere with, restrain or coerce an employee in
any manner whatsoever in the exercise of the
rights or remedies granted to him or her by this
Act or to discriminate, attempt to discriminate,
or threaten to discriminate against an employee
in any way because of his or her exercise of the
rights or remedies granted to him or her by this
Act.
It shall be unlawful for any employer,
individually or through any insurance company or
service or adjustment company, to discharge or to
threaten to discharge, or to refuse to rehire or
recall to active service in a suitable capacity
an employee because of the exercise of his or her
rights or remedies granted to him or her by this
Act.
/4 The district court told the jury that Tullis had
the burden to prove: "Third, acting with intent
to retaliate for plaintiff’s actual or expected
effort to obtain workers’ compensation benefits,
the defendant terminated plaintiff’s employment
and/or refused to rehire him." For this reason,
we have not treated the termination and rehiring
episodes as alternative grounds for affirming the
district court’s decision not to grant a new
trial. It is possible that the jury viewed these
two events as contributing to the retaliatory
discharge or that each individual event
constituted retaliatory discharge. The record,
however, does not provide us with any indication,
therefore either scenario is plausible.