Tart, Lamarce v. IL Power Co ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2236
LAMARCE TART and DAVID CURTIS,
Plaintiffs-Appellants,
v.
ILLINOIS POWER COMPANY and
RAULY LAW,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 98 C 715—Clifford J. Proud, Magistrate Judge.
____________
ARGUED DECEMBER 9, 2003—DECIDED APRIL 26, 2004
____________
Before FLAUM, Chief Judge, and BAUER and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. Lamarce Tart and David Curtis
prevailed before a jury on their claims of race-based
employment discrimination and retaliation. The district
court subsequently granted the defendants’ Rule 50 motion
for judgment as a matter of law, vacating the jury’s verdict.
Once a jury has spoken, we are obliged to construe the facts
in favor of the parties who prevailed under the verdict.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
2 No. 03-2236
150-51 (2000). Because the district court1 construed several
key facts in favor of the losing parties, and because a
reasonable jury could (and indeed did) find that the defen-
dants took adverse employment actions against the plain-
tiffs because of their race and retaliated against them for
engaging in protected activity, we reverse and remand with
directions to reinstate the jury’s verdict in favor of the
plaintiffs.
I.
We begin with a view of the facts that favors the winning
plaintiffs as we are required to do under existing law. David
Curtis, who is African-American, began working at the East
St. Louis plant of Illinois Power in 1979. Tr. Vol. II, at 10.
He received positive performance reviews throughout his
career there and was selected to train other employees
because of his skills. Tr. Vol. II, at 18-20; Tr. Vol. III, at
190-91; Pl. Ex. 18. For many years, he worked in a one-man
truck responding to customer service calls. Tr. Vol. II, at 11-
12. In 1988 or 1989, he also began working in the meter
shop, an indoor position that involved maintaining and
testing gas meters and other equipment used to measure
gas and detect and repair gas leaks. Tr. Vol. II, at 13-15. He
continued to respond to customer calls in a one-man truck
and he performed maintenance services around the building
itself, completing wiring, plumbing, air-conditioning and
heating repairs. Tr. Vol. II, at 15-16. His position changed
titles over the years but he remained essentially what is
now known as a gas journeyman. After the events that took
1
The parties consented to allow a magistrate to conduct all
proceedings including the trial of the case pursuant to 28 U.S.C.
§ 636(c). See R. 60. The case was referred to Magistrate Judge
Clifford J. Proud. See R. 61. We will refer to the court below as the
district court for ease of understanding.
No. 03-2236 3
place in this case, he obtained the additional status of “lead
man,” which makes him eligible to be in charge on a two-
man truck. Tr. Vol. II, at 10-11.
Lamarce Tart is also African-American. He too is a gas
journeyman. He began working for Illinois Power in East
St. Louis in 1981. Tr. Vol. II, at 196. He, like Curtis, re-
ceived positive performance reviews over the years. Pl. Ex.
17. Prior to these events, he worked in a one-man truck
responding to customer service calls and greatly enjoyed his
work. Tr. Vol. II, at 197-98. In the one-man truck he had
contact with customers, was his own boss, made his own
decisions and was not subordinate to a lead man (as was
the case with two-man trucks). Tr. Vol. II., at 198. Like
Curtis, he engaged in skilled work locating and repairing
gas leaks both inside and outside of customers’ homes.
Both men worked at Illinois Power without incident until
1996 when Rauly Law, one of the defendants in this case,
became the new plant manager. Law is Caucasian. At that
time, although the plant workforce was half African-
American and half Caucasian, all of the supervisors and
managers were Caucasian. Tr. Vol. II, at 24. In 1996, after
Law came on board, a Caucasian employee named Reginald
Briggs began harassing Curtis, threatening him, swearing
at him and roughhousing. Briggs called Curtis a thief,
accused him of stealing time from the company, and
accused him of harming the employees’ position with the
union. Tr. Vol. II, at 24-28. Curtis approached Law and
asked him to intervene but Law did not respond to this
request. Tr. Vol. II, at 28. Instead, Law told Curtis he was
going to keep a close eye on him, that he would be watching
Curtis and his work performance, and he began to call into
question the validity of Curtis’s time sheets. Tr. Vol. II, at
29-30.
Law also turned away from a verbal altercation in which
Briggs yelled at Curtis for taking a company truck home, an
4 No. 03-2236
action Briggs claimed was unethical. Tr. Vol. II, at 32-33.
Briggs, of course, was Curtis’s co-worker, not his supervisor,
and Curtis explained that the company allowed employees
to take trucks home when they were serving as “first
responders.” Tr. Vol. II, at 33-34. Law came out of his office
to observe the commotion, saw it escalating and returned to
his office. Id. In the course of this diatribe, Briggs accused
Curtis of having previously taken a truck home in an
incident that occurred some twelve years earlier. Curtis
remarked that he was vindicated in the earlier incident,
which occurred in conjunction with a plant where African-
American employees were not allowed to have a key to the
facility and were not allowed to respond to customer calls in
that particular geographic area, a situation which existed
until Curtis complained. Briggs accused Curtis of trying to
turn the conversation into a racial issue. Curtis replied that
it was a racial issue. Tr. Vol. II, at 33-34.
Briggs also harassed Lamarce Tart. As described by
Curtis, one incident included Briggs “yelling and screaming
at Mr. Tart and giving him his middle finger and giving him
a general cuffing” all in the presence of Law. Tr. Vol. II, at
36-37, 199-200. When Tart asked Law to intervene and
force Briggs to apologize, Law declined. Tr. Vol. II, at 200-
01. After witnessing this exchange and having suffered at
Briggs’s hands himself, Curtis decided to call the company’s
human resources division in Decatur, Illinois. He spoke to
Ken Justice, an Illinois Power human resources consultant,
and told him that he and Tart were being treated “with a
biasness [sic] by Mr. Law, and we had been attacked and
harassed by a white individual and his actions were being
substantiated by Mr. Law.” Tr. Vol II, at 36-37; Tr. Vol. II.
at 156 (“I told him that it was biased, and that’s the term I
used. He understood what I was saying. He knew I was
talking about race.”). He explained that by “substantiated”
he meant that Law had “done absolutely nothing to curtail”
Briggs’s actions. Tr. Vol. II, at 37. Justice promised to look
into the situation.
No. 03-2236 5
Shortly thereafter, Law called the plant together to “flush
the birdie” because “somebody done called EEOC.” Tr. Vol.
II, at 40. Law was irate that “somebody called the EEOC or
the employee services,” that someone “blew the whistle” and
he did not want employee services coming to investigate. Tr.
Vol. II, at 40. Curtis admitted it was he who had made the
call to Human Resources. He was confused by Law’s
reference to the EEOC and told him he did not know he had
called the EEOC but thought he was talking to the com-
pany’s employee services. Law responded, “That’s them,
then you did do it.” Tr. Vol II, at 41.
Law next called a weekend meeting of Curtis, Tart,
Briggs and a union representative, David DeGonia. At this
meeting, Law told Curtis that to prevent employee services
from coming down, Curtis would have to say he made a
mistake in calling them or that he did not need their ser-
vices. Tr. Vol. II, at 42. Law told Curtis that Justice was
coming down to East St. Louis on Monday unless they could
get the issue resolved without him. Tr. Vol. II, at 43. He
told Curtis that “if they do come down, someone is going to
be without a job.” Tr. Vol. II, at 42, 202-03. Because he was
looking directly at Curtis when he threatened the job loss,
Curtis assumed Law meant that Curtis would be fired.
From this point on, Curtis feared for his job. Tart too
understood his job to be on the line. Tr. Vol. II, at 203. That
weekend, Curtis called Law to apologize for calling Human
Resources, explaining he did not know it was going to be
“such a big deal.” Tr. Vol. II, at 43. Law told him that
“somebody was going to have to be fired if that guy has to
come down. . . . And, David, you’re the only guy that we’re
having a problem with.” Tr. Vol. II, at 43.
On Monday morning, Law called another meeting of
Curtis, Tart, Briggs and the union steward. At the meeting,
Law asked Curtis if the issue was resolved. Curtis replied
it was not. Law then asked if Curtis had a problem working
with Briggs; Curtis said he did not. Law asked Briggs if he
6 No. 03-2236
had a problem working with Curtis and he replied he did
not. Law declared the matter resolved. Tr. Vol. II, at 44.
Human Resources did not come down to East St. Louis to
investigate at that time. Thereafter, Briggs continued to
harass Curtis, and Law continued to scrutinize Curtis’s
work. Curtis tolerated the situation until the Loisel Drive
incident.
On appeal, the defendants characterize the Loisel Drive
job as “mishandled” but a reading of the record that favors
the prevailing plaintiffs reveals that many factors beyond
the plaintiffs’ control contributed to the length of time they
were at the site. Although the plaintiffs were working on
one-man trucks and, in Curtis’s case, in the meter shop at
that time, the union had negotiated a requirement that
after regular working hours in certain geographical areas,
a minimum of two workers were required to respond to
customer calls for safety reasons. This is how Curtis and
Tart came to respond together to the report of a gas leak at
Loisel Drive in October 1997.
The call came in on a weekend afternoon, and Curtis and
Tart reported to the plant within an hour as required.
There they picked up a truck and proceeded to the site,
where another Illinois Power employee waited for them. He
told them the leak was “first class,” the most dangerous
type of gas leak situation. Tr. Vol. II, at 45. The leak was at
the homeowner’s foundation wall, which created a risk that
gas could infiltrate the foundation and cause a fire or
explosion. The homeowner was a wheelchair-bound para-
plegic. Curtis and Tart realized that they did not have
adequate equipment on their truck to handle a leak of this
type. They made a temporary fix that rendered the situa-
tion safe enough to leave to get additional equipment, and
then made the 40 minute round trip to the plant to get a
better equipped truck. The trip back to the plant was
lengthened by the fact that it was a weekend, the plant was
empty and some of the equipment they needed was locked
No. 03-2236 7
in a storehouse. Once they returned to the home, the
company dispatcher called a joint utility locating company
to come out and mark the location of underground utility
lines before they started digging. Tr. Vol. II, at 50-52.
Although the locating service is usually able to pinpoint
electrical and gas lines, it is not able to detect buried sewer
lines. Because the service cannot predict the location of
sewer lines, hitting and breaking sewer lines when digging
is a known risk of the job in gas line repair. Tr. Vol. II, at
52-53, 194, 205. Even the defendants conceded this. Tr. Vol.
III, at 70-71. Breaking a sewer line while digging is a
common occurrence and no one had ever been disciplined or
reprimanded for hitting a sewer line. Tr. Vol. II, at 59.
The locator service technician arrived a little more than
an hour after Illinois Power dispatch called for help. The
technician was new to the job and was having difficulty
using the computerized mapping system to find the service
lines. Tr. Vol. II, at 54. Indeed, he was unable to locate even
the gas line much less the electrical and other service lines.
After realizing that their guess was as good as the techni-
cian’s, Curtis and Tart were ready to dig. By this time,
though, it was getting dark. They again returned to the
plant, another 40 minute round trip, to pick up lighting
equipment. As luck would have it, the sewer line was
located very close to the gas line that required replacement.
While digging for the gas line, Curtis and Tart struck and
broke the sewer line. This too lengthened the job because
the trench in which they had to work was now filled with
leaking sewage. Nonetheless, they succeeded in replacing
the gas service line in approximately seven hours, plus the
time needed for trips back to the plant for equipment. Tr.
Vol. II, at 59.
Because the homeowner was a paraplegic and they did
not want to leave her without a working sewage system,
they decided to fix the broken sewer line, a common practice
for gas journeymen. Tr. Vol. II, at 61. They once again
8 No. 03-2236
traveled back to the plant to obtain materials to fix the
sewer line, returned to the home and completed the repairs.
When attempting to refill the hole they had dug to expose
the gas line, the hydraulic line of their digging equipment
burst and sprayed hydraulic fluid all over them. Tr. Vol. II,
at 60. Because of this equipment malfunction, they were
unable to completely refill the trench, and left that work for
another crew the next day. Tr. Vol. II, at 61. All in all, they
worked for approximately eighteen hours to complete the
job, taking breaks as they were entitled to do under union
rules. Tr. Vol. II, at 60-61.
On Monday, they returned to work and Law called them
in to question them about the job. Law was making good on
his threat to scrutinize their work, and he asked for an
accounting of all the hours they spent on the job. They de-
scribed the work to him, including the darkness, the equip-
ment problems, the sewer line breakage and other unfavor-
able conditions. Tr. Vol. II, at 62-63. Law acknowledged the
difficulties and told them he had no problem with the job.
Tr. Vol. II, at 209.
A few days later, Law called them in again, and this time
he was displeased with their work on the Loisel Drive job.
He told them they were at the site for an unreasonably long
time, that he was suspending them for one day and taking
away their overtime pay. Tr. Vol. II, at 209-10. He removed
Curtis from the meter shop and took away his mobile data
terminal, a laptop computer Curtis used in his work. Tr.
Vol. II, at 63-65. He also took back from Curtis keys to the
meter shop and company credit cards that Curtis had been
using to procure materials for maintenance of the building
and to purchase small tools associated with the job. Tr. Vol.
III, at 76-77. Law assigned Curtis to a two-man truck for
“training” under Frank Verdu, a less experienced employee
whom Curtis himself had trained. Tr. Vol. II, at 63-65. This
two-man truck was not assigned to customer service calls.
As Curtis explained, his job suddenly changed drastically:
No. 03-2236 9
Frank Verdu had been an individual of lesser years
than I, and he was still out in what’s called ditch work
or construction work. I was in an office, and I had a
computer on my desk, and I was in charge of a data
base of meter inventorying, sensitive gas leaks, search
equipment that I was responsible for repairing and
maintenance of. I often went in and helped the girls in
the office with their computer situation. All of a sudden
I was just not the person to be doing that anymore.
Tr. Vol. II, at 66. Curtis suddenly found himself outdoors in
the winter digging ditches under the command of a man he
had previously trained.
Verdu was just as puzzled by the new assignment as
Curtis. When Law assigned Curtis to him, Law said, “no-
body else would take him, so you’re getting him.” Tr. Vol. II,
at 182. Verdu had been trained by Curtis and protested that
he could not train the man who had trained him because
Curtis already knew everything Verdu knew. Tr. Vol. II, at
182, 185-86. In fact, no one ever told him he was supposed
to train Curtis. Tr. Vol. II, at 183. No one told him why
Curtis was assigned to him or ever asked him how Curtis
was progressing in his supposed training. Tr. Vol. II, at 185.
See also Tr. Vol. II, at 182 (where Verdu testified, “No, it
wasn’t anything about training him, because I couldn’t train
him.”). Indeed, the only thing Law said to him about Curtis
was a cryptic statement Verdu understood to mean that
Law wanted Verdu to work Curtis until he quit. Tr. Vol. II,
at 187. Two other employees, Reginald Briggs and Ron
Kelly, also told Verdu that he was supposed to work Curtis
until he quit. Tr. Vol. II, at 189.
At the end of the reassignment meeting, Tart and Law
exchanged words and Tart left the office, unintentionally
shutting the door hard behind him. Tr. Vol. II, at 67-68.
Law jumped up from his chair and pursued Tart with such
speed that Curtis feared he was going to “head butt” Tart.
10 No. 03-2236
Tart turned to apologize for shutting the door firmly and
Law yelled at him in a threatening fashion. Curtis feared
Law was going to assault Tart. Tart himself asked Law if he
was going to hit him. Law responded, “If I was going to hit
you, I would have done hit you.” Tr. Vol. II, at 69-70, 211.
Curtis and Tart grieved the discipline and as a result
their overtime pay was reinstated but the union declined to
address the reassignment to ditch-digging duties. Tr. Vol.
II, at 70. Curtis and Tart called Human Resources in
Decatur to complain about the discipline. Curtis spoke to
Ken Justice again and also to Linda Edwards, telling them
there were racial problems in the East St. Louis plant.
Tr. Vol. II, at 177 (“I told him the work force was dividing
along racial lines[.]”). Edwards was also a Human
Resources consultant, a management level position at
Illinois Power. Tr. Vol. III, at 27.2 Justice and Edwards
were surprised to learn that there was an ongoing issue
that stemmed from the earlier call, and felt they had been
deceived. Tr. Vol. II, at 71-72. Curtis told Edwards that
“there was a racial problem that had developed there, and
that the issues that stemmed from 1996 had not been re-
solved, and in fact that the reason they didn’t get the
evidence, what was taking place there, is because I had
been threatened to lose my job if I didn’t say it was re-
solved.” Tr. Vol. II, at 74. He told Edwards that he had been
removed from his primary, routine duties and that the
actions had gone beyond discipline and had become vindic-
tive and a punishment. Tr. Vol. II, at 74, 79. Tart told
Edwards that he had been subjected to discrimination and
retaliation since November 1996, that the things that were
happening to him were not happening to white employees.
Indeed, the Caucasian supervisor and dispatcher involved
2
Edwards was eventually promoted to the position of manager of
diversity, affirmative action and EEOC. Tr. Vol. III, at 27. She
later left the company.
No. 03-2236 11
in the Loisel Drive job were not disciplined or trained in
any manner following the incident. Tr. Vol. II, at 215-16.
Edwards assured Curtis that he had done nothing wrong
in calling Human Resources the previous year. She also
agreed that the reassignment was punishment, and that no
other employee had been trained or disciplined in this
manner. Tr. Vol. II, at 79-80. Verdu later agreed that no
employee had ever been disciplined for taking longer to
complete a job than they should have. Tr. Vol. II, at 188.
David DeGonia, the union representative, had never heard
of anyone who was not an apprentice being sent out for
training for five or seven months. Tr. Vol. III, at 172.
Edwards conducted an investigation that began with inter-
viewing the four people most immediately involved: Curtis,
Tart, Law and Briggs. Eventually the investigation ex-
panded to include eighteen other employees who came
forward on their own to talk to her. Tr. Vol. III, at 31.
Edwards drafted a twenty-page memorandum detailing the
investigative interviews and listing her findings and rec-
ommendations. Pl. Ex. 7. This report was presented to the
jury in redacted form as Exhibit 7A. In redacted form, the
report contained interview summaries from Curtis, Tart,
Law and Briggs. It also set forth Edwards’ twenty-three
findings and sixteen recommendations.
Among the findings presented was a conclusion that
although the initial response to the overtime on the Loisel
Drive job was not racially motivated, the aftermath was. Tr.
Vol. III, at 32; Ex. 7A. In particular, Edwards found that
the punishment received and the atmosphere created
around the punishment had racial overtones. Tr. Vol. III, at
32. She found that Law treated Briggs, a white employee,
favorably as compared to Curtis and Tart. For example, she
had recommended that Law issue a written reprimand to
Briggs for his behavior. Law promised he would and then
did not do so. Tr. Vol. III, at 32-34, 43-44. Law later created
a memo to document a reprimand that supposedly took
12 No. 03-2236
place the previous month, and then lied to Edwards about
reprimanding Briggs. Tr. Vol. III, at 44. Edwards deter-
mined that although Briggs lacked the skills Tart and
Curtis were accused of lacking and was also deficient in
other areas, he was never subjected to training. Ex. 7A. For
example, Briggs could not weld, was a poor equipment
operator, and could not operate the computers well. Ex. 7A.
Edwards found that the threats to Curtis’s and Tart’s jobs
following their calls to Human Resources were retaliation
for coming forward with their concerns, and that the threats
were designed to put fear in all the employees. Tr. Vol. III,
at 32-34; Ex. 7A. She also concluded that the assignment to
training was a pretext for discipline. Ex. 7A. In discussing
the racial overtones, Edwards noted that on one occasion,
Tart called her to say he was going to invite a number of
African-American community leaders to march on the
property. Edwards called Law to inform him that if anyone
came onto the property, he was not to speak to that person
but rather to ask the individual to leave and then to call
headquarters. Law became very agitated and said, “I’m
trying to do my job, I’m trying to do the best job I can. . . .
If those nig. . .” Edwards interrupted him, “Rick, you don’t
want to do that. You don’t want to say that.” Tr. Vol. III, at
34-35. She testified, “I stopped him from fully using the
word nigger.” Tr. Vol. III, at 35.
Once Edwards completed her investigation, she met with
Curtis and Tart to discuss the results of her inquiry. She
told them that she had concluded discrimination had taken
place as well as retaliation. She told them it was wrong that
their jobs were threatened for calling Human Resources and
that the company would not ignore the threat. She had also
concluded that because the reassignments had gone on for
so long, for a number of months beyond which anyone else
had ever been subjected to that kind of training, that the so-
called training resembled punishment. She told Curtis and
Tart she was recommending that they be returned to their
No. 03-2236 13
old duties. Tr. Vol. II, at 84, 218; Tr. Vol. III, at 33, 40; Ex.
7A. She told them Law would be required to attend training
on how to deal with diverse groups of people. Tr. Vol. II, at
86.
Edwards’ recommendations were given to Law in Novem-
ber 1997. Ex. 11. They were not discretionary but rather the
employees involved were required to comply with them. Tr.
Vol. III, at 38. Number five on the list read, in part, “David
Curtis and Lamarce Tart to be moved back to their trucks,
this job will give access to operate the MDT. . . . [T]his will
remedy the substantiated unlawful retaliation by Rick
Law.” Ex. 11.3 Edwards required that Curtis and Tart be
returned to their prior duties because Law was unable to
provide a valid business reason for having moved them in
the first place. Tr. Vol. III, at 49. He claimed that he moved
Tart and Curtis because they were slow workers (a claim
not borne out by their performance reviews) but was unable
to explain why he did not take similar action with Briggs,
a white employee known as a slow worker. Tr. Vol. III, at
49-50. Law sent Edwards a memo on December 11, 1997
detailing which recommendations he had completed and
which he had not. Curiously absent from his memo was the
disposition of recommendation number five. Ex. 11. When
Edwards became aware that recommendation number five
was not being implemented, she spoke separately to Law
and to Ron Pate, Law’s supervisor, making a note of her
conversations in order to protect herself. Tr. Vol. III, at 45-
46. Law openly refused to implement the recommendation
and Pate supported him in this decision. Tr. Vol. III, at 46.
Law failed to implement other recommendations as well.
Tr. Vol. III, at 47-48. Edwards found that racial tensions in
the diverse plant were controlled before Law came into
3
MDT stands for “mobile data terminal,” the computer the
plaintiffs used in their work before the reassignments.
14 No. 03-2236
management, but the situation “exploded” once Law
arrived. After Law left, the plant settled down again. Tr.
Vol. III, at 53.
Shortly after his meeting with Edwards, Curtis attended
a plant-wide meeting called by Law. Law told the employees
the meeting was about diversity, threw up his hands and
said, “I broke the law. I was wrong.” Tr. Vol. II, at 86-87. He
told the employees they would have to address each other
more formally now and could not use nicknames anymore.
As an example, he said, “You can’t turn to your co-worker
and say ‘Hey buddy, give me a wrench.’ ” Tr. Vol. II, at 87.
The discussion then devolved into a “big joke” where the
employees laughed about this diversity training. Law told
them they had to use first names only, could not be “buddy-
buddy” anymore and that Curtis and Tart had “spoiled the
party.” Tr. Vol. II, at 87, 218.
Curtis was never returned to the meter shop. Tr. Vol. II,
at 88; Vol. III, at 51. Indeed, his “training” continued after
this point for a total of seven or eight months. During the
“training,” Curtis was never actually trained to do any-
thing. No written or other training was provided, no pro-
gress reports were made, and Law never inquired into his
progress. Tr. Vol. II, at 88. As previously noted, although
Caucasian employees had taken similar amounts of time to
complete leak repair jobs under unfavorable conditions,
none had ever been punished. Tr. Vol. II, at 89; Tr. Vol. III,
at 181-82. Curtis’s job in the meter shop was given to a
Caucasian employee with less experience and less seniority.
That employee was also given Curtis’s one-man truck.
Curtis’s other responsibilities, such as performing wiring
and other repairs at the plant, were outsourced to outside
contractors because the new meter shop employee lacked
the skills to complete these tasks. Curtis also missed the
opportunity to train other apprentice employees because
Law failed to tell him he was on a list of potential trainers
whose assistance was requested by the Decatur plant. Tr.
No. 03-2236 15
Vol. II, at 90; Tr. Vol. III, at 86. Finally, the new meter shop
employee was supplied with $4000 worth of new tools in a
new tool chest, although Curtis, who had repeatedly
requested appropriate tools, had been forced to make do
with a small bag of old tools and tools that he brought from
home. Tr. Vol. II, at 91-92.
After more than seven months of “training” under Frank
Verdu, Law told Curtis he was no longer working for Verdu
and he became a floater, taking any assignments that were
available each day. Tr. Vol. II, at 94. He remained a floater
until he was able to use his seniority to bid out to a con-
struction crew in 1999. He bid to join the crew so that he
could get away from the harassment and ridicule he
received from co-workers in the East St. Louis plant. Tr.
Vol. II, at 95.
Tart’s “training” lasted five wet, cold, miserable months.
Tr. Vol. II, at 213. In his twenty years of service at Illinois
Power, he had never known anyone to be subjected to this
sort of “training” for more than two weeks. Tr. Vol. II, at
213. No white employees who were involved in jobs taking
similar lengths of time had ever been punished or sent to
some indeterminate, undefined training. Tr. Vol. II, at 214.
No progress reports were made of his training and Law
never inquired of his progress. His one-man truck was given
to a white employee. Tr. Vol. II, at 213. Edwards’ recom-
mendation that he be returned to the one-man truck was
not honored, Briggs continued to harass him with obscene
words and gestures, and “the whites were still separated
from the blacks.” Tr. Vol. II, at 219. Tart reported that
“[t]he white guys were shoving me, if I even walked by or
stand [sic] up, then they would get away from me.” Tr. Vol.
II, at 220. He was treated like an outcast. Tr. Vol. II, at 219.
At the end of five months, he was placed back on a one-man
truck assignment. Tr. Vol. II, at 246.
At trial, Law denied that he had seen Edwards’ sixteen
recommendations before the litigation began. Tr. Vol. IV, at
16 No. 03-2236
113. He conceded this was not true when he was confronted
with a copy of his own memo with the sixteen recommenda-
tions stapled to it. Tr. Vol. IV, at 117-19, 121. Also at trial,
Law initially held to the story he told Edwards, that he
fulfilled recommendation number three, to place a repri-
mand in Briggs’s personnel file for harassment and intimi-
dation in December 1997. Tr. Vol. IV, at 124. When con-
fronted with his actual memo dated two months later in
January 1998, he was forced to concede that he had lied to
Edwards when he told her he had completed the recommen-
dation. Tr. Vol. IV, at 126. Briggs later testified that Law
did not ever discipline him for his behavior towards Curtis.
Tr. Vol. IV, at 167. Rather, another manager delivered the
discipline. Tr. Vol. IV, at 167. Law conceded that an
“individual employment plan” he was required to develop
for himself each year identified the sixteen recommenda-
tions as a goal for completion that year. Tr. Vol. III, at 81.
He even conceded that although the reassignment of Tart
and Curtis began as a training exercise, at some point it
turned into a job assignment. Tr. Vol. IV, at 146.
II.
Curtis and Tart sued Illinois Power and Law for race
discrimination and retaliation in violation of 42 U.S.C.
§ 1981 and 42 U.S.C. § 2000e, et seq. After a jury verdict in
favor of the plaintiffs, the defendants moved for judgment
as a matter of law under Fed. R. Civ. P. 50. The trial court
granted the motion, concluding that no reasonable jury
could find that the defendants took adverse employment
actions against Curtis and Tart. The court also determined
that the reassignments could not serve as retaliation for
engaging in protected conduct because Curtis and Tart
reported race discrimination to Linda Edwards the day
after they were reassigned. Finally, the district court
credited the defendants’ version of the context in which the
No. 03-2236 17
reassignments took place. The defendants argued that the
reassignments were made during a time when the company
was largely eliminating one-man trucks and moving to a
different business model of two-man trucks with cross-
trained employees on each truck, demonstrating that the
reassignments were not discriminatory or retaliatory. Each
of these conclusions is faulty; none serves as an adequate
reason to overturn the jury verdicts in favor of Curtis and
Tart.
The district court attacked the verdicts both factually and
legally, and we will address the facts first. When entertain-
ing a motion for judgment as a matter of law, the court
should review all of the evidence in the record. Reeves, 530
U.S. at 150. In doing so, the court must draw all inferences
in favor of the nonmoving party, here Curtis and Tart. Id.;
Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002). We
may not make credibility determinations or reweigh the
evidence; we must disregard all evidence favorable to the
moving party that the jury is not required to believe.
Reeves, 530 U.S. at 150-51. “That is, the court should give
credence to the evidence favoring the nonmovant as well as
that evidence supporting the moving party that is uncontra-
dicted and unimpeached, at least to the extent that that
evidence comes from disinterested witnesses.” Reeves, 530
U.S. at 151 (internal quote marks omitted). We are particu-
larly careful in employment discrimination cases to avoid
supplanting our view of the credibility or weight of the
evidence for that of the jury. Hybert v. Hearst Corp., 900
F.2d 1050, 1054 (7th Cir. 1990). See also Tuohey v. Chicago
Park Dist., 148 F.3d 735, 740 (7th Cir. 1998) (noting we are
particularly careful in employment discrimination cases not
to substitute our own view of credibility or weight of the
evidence for that of the jury). This is because employment
discrimination cases often involve sensitive and difficult
issues of fact, and plaintiffs often have only circumstantial
evidence on which to rely. Hybert, 900 F.2d at 1054.
18 No. 03-2236
The district court found that the reassigned positions on
the two-man trucks were not objectively inferior to other
positions filled by gas journeymen but merely caused
bruised egos and personal humiliation. This is so, the court
found, because there was no showing that the tasks on the
two-man truck involved any less a degree of responsibility
or constituted a stripping of duties as compared to the
meter shop and the one-man truck. When viewing the facts
in a light most favorable to the winning plaintiffs, this is
simply not true. Before the reassignment, Curtis worked
independently, mostly indoors, repairing gas meters and
other equipment, working with computers, maintaining the
building’s electrical and mechanical systems, and some-
times answering customer service calls on a one-man truck.
At times, he assisted the office staff with their computer
problems. Tart also worked independently on a one-man
truck, which involved customer contact, skilled work
repairing gas leaks both inside and outside of homes, and
computer access. After the reassignment, which the com-
pany’s own Human Resources manager concluded was due
to race discrimination, Curtis and Tart worked outdoors
in winter digging ditches under the supervision of
Caucasian workers they themselves had previously trained.
Gone was the independence, the largely indoors environ-
ment, the computer access, the skilled labor involved in
fixing equipment and repairing gas leaks, and the customer
contact. Instead, they were now construction laborers,
digging ditches, under the hyper-vigilant eye of a manager
who told their new supervisors to work them until they
quit. Characterizing their preference for their former
positions as “subjective” strains credulity and strips the
jury of its province as fact-finder.
According to the district court, the case law does not
support a finding of adverse employment action because
No. 03-2236 19
Curtis and Tart retained their salary, title and benefits.4
The court characterized the reassignments as lateral moves
that could not be considered adverse under the case law.
But a review of the cases on which the district court relied
reveals otherwise. Consider Hernreiter v. Chicago Housing
Authority, 315 F.3d 742 (7th Cir. 2002), cert. denied, 124 S.
Ct. 472 (2003). There the plaintiff was reassigned from the
position of field investigator to auditor (a position he
previously held). We noted that the financial terms of
employment were identical and the same skills were used
in each position. The major differences were that investiga-
tors were offered the use of a company car and were
excused from having to sign in and out of an office. The
auditors, on the other hand, did not have to travel out in
the field and held an office position. Although the plaintiff
had an idiosyncratic preference for being out in the field, we
concluded that the trivial differences between the two jobs
did not justify “trundling out the heavy artillery of federal
anti-discrimination law.” 315 F.3d at 745. As we have
described, the reassignments here did not involve the use of
the same skills, and the differences between the jobs could
hardly be described as trivial. The reassigned jobs were
objectively inferior; they involved far less skill and signifi-
4
The district court framed the issue in terms of the plaintiffs’
failure to prove an element of the prima facie case for employment
discrimination. Of course, after a trial on the merits, disputes
about the prima facie case fall away and we need resolve only the
ultimate question of whether there was sufficient evidence for the
jury to conclude that race was a determinative factor in an
adverse employment action taken by the defendants. McNabola v.
Chicago Transit Authority, 10 F.3d 501, 514 (7th Cir. 1993); U.S.
E.E.O.C. v. Century Broadcasting Corp., 957 F.2d 1446, 1455 (7th
Cir. 1992). The sole element of the claim challenged by the
defendants is whether they took an adverse employment action
against the plaintiffs and thus that is where we will focus our
discussion.
20 No. 03-2236
cantly harsher working conditions than the plaintiffs’ prior
positions. Few if any workers would choose to leave inde-
pendent, skilled positions on one-man trucks or in the
meter shop to report to winter ditch digging duty under the
supervision of employees they had previously trained. Few
workers in today’s job market would choose to give up
access to computers so they could spend the winter on
trenchers and with shovels, digging the holes that made
way for other workers to complete the skilled part of the
labor. This preference is not idiosyncratic; it is universal.
The district court also likened this case to Flaherty v. Gas
Research Inst., 31 F.3d 451 (7th Cir. 1994). Flaherty’s
position as principal scientist was to be eliminated and he
was instead offered a position as senior project manager.
The company considered this a lateral transfer with no
change in salary or benefits. The responsibilities of the two
jobs were comparable although the new position held
greater job growth potential. 31 F.3d at 457. Flaherty
objected to the new position largely because it involved a
title change and required him to report to a former subordi-
nate who was merely a manager when he had previously
reported to a senior vice president. 31 F.3d at 457. We
found that the title change and different reporting re-
lationship were largely semantic “where the employee’s
salary, benefits, and level of responsibility would remain
unchanged.” Id. We noted that the change in reporting may
well have bruised Flaherty’s ego but a plaintiff’s perception
that a lateral transfer would be personally humiliating is
insufficient, absent other evidence, to establish a materially
adverse employment action. Id. It is the other evidence that
distinguishes the instant case, evidence that the level of
responsibility diminished significantly and that skills
involving gas line repair and equipment maintenance were
set aside so that the plaintiffs could learn to dig ditches to
the satisfaction of a manager who had to be restrained from
calling them “niggers.” Traylor v. Brown is similarly
No. 03-2236 21
distinguishable because the plaintiff there was not demoted
or disciplined and her job responsibilities were not materi-
ally diminished. 295 F.3d 783 (7th Cir. 2002).
Crady is no more comparable than the other cases on
which the district court relied. Crady v. Liberty Nat’l Bank
& Trust Co. of Indiana, 993 F.2d 132 (7th Cir. 1993). Crady
was hired as an assistant vice president and manager of a
bank. He was later transferred to another branch of the
bank into the position of loan officer. Although there was a
title change, there was no wage reduction. Crady demon-
strated that his responsibilities changed, but he failed to
show that his new responsibilities were less significant than
those of his prior position. With this failure of proof, we
held, the title change alone was not enough to show materi-
ally adverse employment action. 993 F.2d at 136. We
remarked that a materially adverse change may be indi-
cated by, among other things, “significantly diminished
material responsibilities or other indices that might be
unique to a particular situation.” 993 F.2d at 136. Here, as
we have noted, there was plenty of evidence of significantly
diminished responsibilities. The list need not be repeated;
the plaintiffs were not simply shuffled from one desk job to
another as occurred in Crady.
That leaves Spring v. Sheboygan Area School Dist., 865
F.2d 883 (7th Cir. 1989), where a school principal was
transferred to a dual principalship over two schools of sim-
ilar staff and student size during a district reorganization.
Her reassignment included a two-year contract and a merit
pay increase. 865 F.2d at 885. The new job was farther from
Spring’s home but reimbursed her for travel expenses. We
summarized the new job as “another principalship for more
pay under a longer-term employment contract,” and
accordingly declined to characterize it as materially ad-
verse. 865 F.2d at 886. This ruling was hardly a stretch
because the plaintiff herself had testified in her deposition
that she did not think the new position was a “lesser job.”
22 No. 03-2236
Id. None of the factual circumstances of these cases comes
close to what happened to Curtis and Law.
The case law in fact supports the jury’s verdict amply.
In Hernreiter, we set forth three categories of cases where
the courts have found the criteria for materially adverse
employment action to be met: (1) cases in which the em-
ployee’s compensation, benefits or other financial terms of
employment are diminished, including cases where em-
ployment is terminated; (2) cases in which a nominally
lateral transfer without a change in financial terms signifi-
cantly reduces the employee’s career prospects by pre-
venting him from using the skills in which he is trained and
experienced; and (3) “[c]ases in which the employee is not
moved to a different job or the skill requirements of his
present job altered, but the conditions in which he works
are changed in a way that subjects him to a humiliating,
degrading, unsafe, unhealthful, or otherwise significantly
negative alteration in his workplace environment—an
alteration that can fairly be characterized as objectively
creating a hardship, the classic case being that of the
employee whose desk is moved into a closet.” Hernreiter,
315 F.3d at 744-45 (emphasis in original). Curtis and Tart
are well within the bounds of the third category and
arguably within the bounds of the second, based on the
evidence accepted by the jury. Curtis’s work area was not
just moved to a closet; it was moved to a cold, wet, muddy
trench. Likewise for Tart, who lost the one-man truck and
the work that went with it. If the moved desk is an objec-
tively and sufficiently worse condition of employment, it is
difficult to conceive how the district court characterized the
move from one-man trucks and the meter shop into the
trenches as “subjective” and purely lateral. Cf. Parrett v.
City of Connersville, Indiana, 737 F.2d 690, 693 (7th Cir.
1984) (chief of detectives relegated to desk job with no
duties suffered a loss of property cognizable under the
Fourteenth Amendment). See also Durham Life Ins. Co. v.
No. 03-2236 23
Evans, 166 F.3d 139, 152-53 (3d Cir. 1999) (loss of an office
and secretary deemed adverse employment action even
though pay and title remained the same); Parrish v.
Immanuel Medical Center, 92 F.3d 727, 731-32 (8th Cir.
1996) (adverse action found when hospital registrar who
previously received patients into hospital, obtained infor-
mation from patients for hospital records and responded to
public inquiries was reassigned to clerical duties that
consisted of assembling and stapling papers together with
no computer work or patient contact).
Even Flaherty, on which the district court relied in part,
clarified that an employer could not insulate itself from
liability for discrimination simply by offering a transfer at
the same salary and benefits. 31 F.3d at 456-57.
Indeed, we observed in Collins v. State of Illinois, 830
F.2d 692, 703 (7th Cir. 1987), that other courts have
found adverse employment actions in the following
circumstances where salary and benefit levels were
retained: in an employer’s moving an employee’s office
to an undesirable location, transferring an employee to
an isolated corner of the workplace, and requiring an
employee to relocate her personal files while forbidding
her to use the firm’s stationary and support services.
Flaherty, 31 F.3d at 457 (internal quote marks omitted). See
also Collins, 830 F.2d at 702 n.7 (collecting cases where a
lateral transfer with no loss in pay or benefits nonetheless
qualified as a materially adverse employment action);
McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994)
(secretary laterally transferred to a clerk-typist position
with no loss in pay demonstrated adverse employment
action where the new position entailed fewer responsibili-
ties, more menial tasks and a lesser opportunity for salary
increases in the future).
The instant case is more comparable to Collins than
to any of the cases relied upon by the district court. Collins
24 No. 03-2236
was an African-American library consultant who was
transferred from the library’s “development unit” to its
“reference unit” with no change in pay or benefits. We found
that the following evidence “amply demonstrated” adverse
job action:
She was transferred away from a job she enjoyed. She
was placed in a new department. Her new supervisors
seemed unsure of what plaintiff’s responsibility and
authority would be at the newly created job. Plaintiff
was relegated to doing reference work instead of con-
sulting. Plaintiff previously had her own office, a tele-
phone at her desk, printed business cards, and listings
in professional publications as a library consultant.
After her transfer plaintiff was placed at a desk out in
the open. She did not have her own office. Her desk was
situated just outside the supervisor’s office where a
receptionist’s desk typically would be located. Plaintiff
had no telephone at her desk with which she could
conduct her business responsibilities. She was not
allowed to have business cards printed and she was no
longer listed in professional publications as a library
consultant.
Collins, 830 F.2d at 704. Both Curtis and Tart were trans-
ferred away from jobs they enjoyed and placed in new
positions. Curtis’s new supervisor, Frank Verdu, had no
idea what he was supposed to be doing with Curtis and was
told only that he was being assigned Curtis because no one
else would take him, and that he should work him until he
quit. Verdu questioned the validity of the training rationale
because he himself had been trained by Curtis and believed
he had nothing to teach him, a fact of which Law was well
aware. Where previously Curtis and Tart had access to one-
man trucks (and in Curtis’s case access to the meter shop as
well) and all of the attendant benefits of those positions,
now they were outdoors nearly all the time, similar to the
moving of Collins’ desk. Collins lost her telephone and
No. 03-2236 25
business cards; Curtis and Tart lost their computers, their
independence, customer contact and their skilled job duties.
Collins’ loss is indistinguishable from the losses suffered by
Curtis and Tart. See also Hoffman-Dombrowski v. Arlington
Int’l Racecourse, Inc., 254 F.3d 644, 649-51 (7th Cir. 2001)
(employee laterally transferred from position as building
manager to assistant managerial position involving severely
diminished job responsibilities but with no loss in pay,
benefits or title adequately demonstrated materially
adverse employment action); Dahm v. Flynn, 60 F.3d 253,
257 (7th Cir. 1994) (decreasing some job responsibilities
while increasing other duties can, under limited circum-
stances, constitute an adverse employment action; an
ostensibly lateral transfer may be an adverse employment
action if it is accompanied by a dramatic downward shift in
skill level required to perform job responsibilities). The
evidence here was more than adequate to support the jury’s
verdict that Curtis and Tart suffered materially adverse
employment actions.
We turn then to the retaliation claims. To prevail on a
claim for retaliation, a plaintiff must show that (1) he com-
plained about conduct that is prohibited by Title VII; (2)
he suffered an adverse employment action; and (3) the
adverse employment action was caused by his opposition to
the unlawful employment practice. Spearman v Ford Motor
Co., 231 F.3d 1080, 1086 (7th Cir. 2000), cert. denied, 532
U.S. 995 (2001). The district court found that the plaintiffs’
retaliation claim failed on all three prongs. We have already
addressed the adverse employment action question, which
the jury resolved in favor of the plaintiffs. We now address
the other two prongs.
According to the district court, the reassignments took
place the day before Curtis and Tart called Human Re-
sources to complain about the discipline for the Loisel Drive
job. In order to be retaliatory, the court held, the reassign-
ments must have come after the complaint. There are two
26 No. 03-2236
answers to the court’s questionable reasoning and the jury
was free to adopt one or both. First, the reassignments
came at the end of many months of intense scrutiny by Law
following the plaintiffs’ first call to Human Resources. After
Law’s agitated pronouncement in 1996 that “somebody done
called EEOC,” he made good on his promise to watch the
plaintiffs closely, waiting for a misstep. He considered the
Loisel Drive job to be that misstep and he applied such a
heavy hand that first the union and then the company’s
own human resource manager ordered him to undo his so-
called discipline. The reassignment was thus one more step
in Law’s campaign of increased scrutiny following the first
complaint of race discrimination. That is one way in which
the jury may have viewed the reassignments as retaliatory.
The jury was free to find that the reassignments were also
retaliation for the second call to Human Resources, even
though the timing at first appears off. Law’s insistence that
the plaintiffs remain in “training” for five and seven months
respectively, when no other employee had been subjected to
training for more than a few weeks demonstrates that
continuing the punishment for such a lengthy period after
learning of the call to Human Resources was indeed
retaliatory. Law even went so far as to openly refuse to
implement the corrective action dictated by the company’s
own human resource manager. When ordered to return
Curtis and Tart to their former assignments, he refused and
his supervisor backed him up. This refusal came, of course,
after the plaintiffs complained to Human Resources. In this
sense, the jury was free to find that the retaliation was not
the original reassignment to training (which might have
lasted a few weeks if the plaintiffs had not complained
about race discrimination), but rather the lengthy continua-
tion of the “training” and the refusal to return the plaintiffs
to their former positions after learning of the complaint of
race discrimination.
The district court also concluded that the initial call to
Human Resources could not be “protected activity” because
No. 03-2236 27
that call was not race-related and was not understood by
the defendants to be race-related. This conclusion errone-
ously construes the evidence in a light most favorable to the
defendants. Curtis testified that he told Justice that he and
Tart were being treated in a biased manner by Law, that a
white employee was attacking and harassing them, and
that Law was doing nothing about it despite their com-
plaints. Tr. Vol. II, at 36-37. Curtis testified, “I told him
that it was biased and that’s the term I used. He under-
stood what I was saying. He knew I was talking about
race.” Tr. Vol. II, at 156. Justice then called Law to discuss
the incident and Law in turn called a meeting to “flush the
birdie,” that is, to determine who blew the whistle. Law’s
proclamation at this meeting that “somebody done called
EEOC” demonstrated that Law was certainly aware a
complaint of race discrimination had been made. The ref-
erence to the EEOC was all the jury needed to conclude that
both Justice and Law perceived the complaint to be race-
related. Curtis’s testimony that he discussed bias and the
race of the harasser when he spoke to Justice corroborated
this. This was sufficient evidence from which the jury could
conclude that Curtis was reporting race discrimination and
that Justice and Law understood the call to be a complaint
regarding race discrimination.
Finally, the jury was not persuaded by the company’s
proffered explanation for the reassignments. The company
argued at trial that the reassignment occurred at a time
when it was cross-training its workers to be both laborers
(the workers who dug ditches) and fitters (the skilled
position Curtis and Tart originally held) so that both
workers on a two-man truck would be capable of completing
both laborer and fitter tasks. The purpose of this shift was
to save salary costs, especially overtime. The company
claimed Curtis and Tart were reassigned for training as
laborers so they could be part of the company’s new cross-
trained two-man trucks. The jury was not obliged to believe
28 No. 03-2236
this explanation and the verdicts are clear indications that
they rejected this post hoc excuse for the reassignments.
Reeves, 530 U.S. at 150-52. Recall the standard we are to
apply once the jury has spoken. In entertaining a Rule 50
motion for judgment as a matter of law, we must draw all
reasonable inferences in favor of the nonmoving party, in
this case Curtis and Tart. See id. Although we review the
record as a whole, we must disregard all evidence favorable
to the moving party that the jury is not required to believe.
Reeves, 530 U.S. at 151. That is, we should give credence to
the evidence favoring the nonmovant as well as the evi-
dence supporting the moving party “that is uncontradicted
and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.” Reeves, 530 U.S. at
151. The jury was not required to believe the defendants’
testimony regarding cross-training for two-man trucks. All
of this testimony came from interested witnesses, and was
contradicted by, among other things, the company’s contin-
ued use of one-man trucks. Indeed, the company continued
to use the one-man trucks originally assigned to Curtis and
Tart; those very trucks were reassigned to Caucasian
employees. Ultimately, Tart returned to a one-man truck,
indicating the company had not in fact phased them out in
favor of the two-man cross-trained trucks. There was also
evidence that neither of the plaintiffs’ new supervisors were
told to train the plaintiffs, and one testified he had nothing
to teach the man who had trained him. Rather, the new
supervisors were told to work the plaintiffs until they quit.
The evidence taken in a light most favorable to the plain-
tiffs shows that, even if the company was cross-training
some workers for this new system, the plaintiffs were not
reassigned as a result of the new need for cross-trained
employees but rather were reassigned because of their race
and because they complained about race discrimination.
Indeed, the company’s own human resources manager
concluded that the prolonged reassignment was punitive
and race-based, and ample evidence demonstrated that
No. 03-2236 29
“training” was merely a pretextual label applied to the
punishment. The jury rejected the employer’s purportedly
nondiscriminatory reason for adverse action. Gustafson, 290
F.3d at 909 (“We are not entitled to speculate as to what the
employer may have considered the facts to be and what
concerns about operational efficiencies it may have had,
once the record shows what those concerns really were.”).
We may not substitute our judgment for that of the jury.
We therefore reverse the judgment of the district court and
remand with directions to reinstate the jury verdict.
Because we are reinstating the verdict, we must briefly
address the district court’s conditional grant of a new trial.
The district court based this ruling on its belief that the
verdict was against the manifest weight of the evidence.
This belief in turn rested on the court’s erroneous conclu-
sions that (1) the plaintiffs failed to prove the element of
adverse employment action on their claim of employment
discrimination; and (2) for the retaliation claim, the plain-
tiffs failed to prove that they complained about conduct
prohibited by Title VII, and failed to show a causal connec-
tion between their complaint and the actions taken by their
employer. Because there was ample evidence supporting the
jury’s verdict on both of these claims, any grant of a new
trial would be unwarranted and erroneous. We therefore
reverse the court’s conditional grant of a new trial.
III.
In summary, we reverse the district court’s conditional
grant of a new trial. We also reverse the court’s judgment
in favor of the defendants and remand with directions to
reinstate the jury verdict.
REVERSED and REMANDED.
30 No. 03-2236
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-04