Otto May, Jr. v. Chrysler Group LLC ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-3000 & 11-3109
O TTO M AY, JR.,
Plaintiff-Appellant/
Cross-Appellee,
v.
C HRYSLER G ROUP, LLC,
Defendant-Appellee/
Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 02-C-50440—Frederick J. Kapala, Judge.
A R G U ED A P R IL 13, 2012— D EC ID ED A U G U ST 23, 2012
R EA RG U ED A P R IL 1, 2013— A M E N D ED O P IN IO N M A Y 14, 2013
Before B AUER, K ANNE, and T INDER, Circuit Judges.
P ER C URIAM. More than fifty times between 2002 and
2005, Otto May, Jr., a pipefitter at Chrysler’s Belvedere
Assembly Plant, was the target of racist, xenophobic,
homophobic, and anti-Semitic graffiti that appeared in
and around the plant’s paint department. Examples,
2 Nos. 11-3000 & 11-3109
unfortunately, are necessary to show how disturbingly
vile and aggressive the messages were: “Otto Cuban Jew
fag die,” “Otto Cuban good Jew is a dead Jew,” “death to
the Cuban Jew,” “fuck Otto Cuban Jew fag,” “get the
Cuban Jew,” and “fuck Otto Cuban Jew nigger lover.” In
addition to the graffiti, more than half-a-dozen times
May found death-threat notes in his toolbox. Different
medium, same themes: “Otto Cuban Jew muther fucker
bastard get our message your family is not safe we
will get you good Jew is a dead Jew say hi to your
hore wife death to the jews heil hitler [swastika].” The
harassment was not confined to prose. May had his
bike and car tires punctured, sugar was poured in the
gas tanks of two of his cars, and, most bizarrely, a
dead bird wrapped in toilet paper to look like a Ku Klux
Klansman (complete with pointy hat) was placed in a
vise at one of May’s work stations. May contacted the
local police, the FBI, the Anti-Defamation League, and,
of course, complained to Chrysler. And Chrysler re-
sponded: The head of human resources at the Belvedere
plant met with two groups of skilled tradesmen (like
May) and reminded them that harassment was unac-
ceptable, a procedure was implemented to document
the harassment, efforts were made to discover who was
at the plant during the periods when the incidents
likely occurred, and a handwriting analyst was retained
and used. Unfortunately, the harasser or harassers were
never caught.
May sued Chrysler in 2002 (relatively early in the
cycle of harassment) and alleged a variety of claims
under Title VII and 42 U.S.C. § 1981. Only his hostile
Nos. 11-3000 & 11-3109 3
work environment claim survived summary judgment
and made it to trial. And at trial there were only four
contested issues: First, whether someone other than
May was responsible for the harassment. (Chrysler,
obviously, would not be liable for self-inflicted “harass-
ment.”) Second, whether Chrysler took steps reasonably
calculated to end the harassment. Third, to determine
if punitive damages were appropriate, whether Chrysler
recklessly disregarded May’s federally-protected rights.
And fourth, the amount of damages, if any.
The jury concluded that May carried his burden and
awarded him $709,000 in compensatory damages and
$3.5 million in punitive damages. Responding to
Chrysler’s post-verdict motions, the district court sided
with May on the first two issues: May had presented
sufficient evidence for the jury to conclude that Chrysler
was liable for the hostile work environment. The district
court believed, however, that the jury’s compensatory
damages award was excessive. Rather than returning
to trial on compensatory damages, May accepted remit-
titur to $300,000. On the third issue, punitive dam-
ages, the district court sided with Chrysler, and con-
cluded that May failed to present sufficient evidence
for the jury to decide that Chrysler recklessly disre-
garded his federally-protected rights. The verdict on
punitive damages was therefore vacated. Both parties
appealed. Chrysler argued that it should not be held
liable at all; May argued that the jury was entitled to
conclude not only that Chrysler was liable but that it
was reckless, and so the jury’s verdict on punitive
damages should be reinstated.
4 Nos. 11-3000 & 11-3109
When we first heard this case, the panel unanimously
concluded that the district court correctly rejected Chrys-
ler’s motion for judgment as a matter of law on lia-
bility, and a majority decided that the district court also
should have rejected its motion for judgment as a mat-
ter of law on punitive damages. Judge Bauer dissented
from the latter ruling. Chrysler sought rehearing, and
the panel granted rehearing limited to punitive damages.
We now reaffirm our ruling regarding liability, and after
the benefit of the arguments on rehearing, we con-
clude that the district court properly granted Chrysler’s
motion for judgment as a matter of law on punitive
damages. We therefore affirm the district court’s judgment.
I. Background
To understand the particular nature of May’s harass-
ment, it is helpful to know a little about May’s family
story. We therefore begin, briefly, with May’s grand-
father, who moved to Cuba from Germany around 1911.
Although he was Jewish, he married a Protestant woman
from Cuba, and May’s father was raised as a Protestant.
Two years after Fidel Castro took power, when May
was eleven, May and his family moved to Florida. When
May was seventeen, he converted to Judaism so he
could marry his girlfriend (she was Jewish). He
has since divorced and remarried several times, but his
connection to Judaism has endured, and he identifies
as a Messianic Jew. Since 1988, May has worked at Chrys-
ler’s Belvedere Assembly Plant, in Belvedere, Illinois,
as a pipefitter, repairing and maintaining equipment
used to paint and assemble cars.
Nos. 11-3000 & 11-3109 5
The events that produced this case started early in
2002 with vandalism to May’s car and then to the loaner
cars he used as replacements. The first car broke down
on his drive home from work—sugar in the gas tank,
according to the mechanic. He drove a second car for a
few weeks before sugar was discovered in its tank too.
That second car also had a tire disintegrate, as did the
tire of a third car he drove while the first two were in
the shop. All this was reported to the local police and
to Chrysler in February 2002. Three months later,
May drove over a homemade spike hidden by rags and
placed under his tire. He reported the incident to
security and police the next day. May didn’t notice a
response from Chrysler, so he complained to a per-
son in human resources at Chrysler’s headquarters
in Michigan. Approximately ten days later, Kim Kuborn,
a human resources supervisor who eventually became
the principal HR person on May’s case, called May and
told him he could park in the salaried lot, which is moni-
tored by cameras. This solution didn’t much please
May, however, because a Chrysler security officer told
him that some of the cameras did not record, that
some did not work, and that the ones that did were not
monitored.
The threatening messages started in the first half of
2002, with words “fuck” and “sucks” written on the tag
of May’s coveralls. In June 2002, a heart with “Chuck +
Otto” was found on the wall of a materials elevator.
(Chuck was one of May’s closest friends at the plant.)
May complained to management, but the writing was
not removed until August 29. Two days later, May saw
6 Nos. 11-3000 & 11-3109
“Cuban fag Jew” on the wall of the same elevator.
May reported the graffiti and it was cleaned four days
later, on September 3. That same day, May found a print-
out of a chain email titled, “Yes, I’m a Bad American”
tucked into one of the drawers of his toolbox. The docu-
ment had some handwritten additions. For example,
next to a printed line that said, “I think being a
minority does not make you noble or victimized, and
does not entitle you to anything” was handwritten
“Cuban sucks cock fag.” Next to the printed line “I’ve
never owned a slave, or was a slave, I didn’t wander
forty years in the desert after getting chased out of
Egypt. I haven’t burned any witches or been persecuted
by the Turks and neither have you! So, shut-the-Hell-up
already” was written “Cuban Jew [swastika] kill Jew Heil
Hitler.” May told his supervisor, labor relations, security
and provided Chrysler a copy of the note. May found
another note in his toolbox on September 12. It said: “no
one can help you fucken Cuban Jew We will get you
Death to the Jews Cuban fag Die.” Chrysler and the
police were informed. Additional threatening graffiti
targeting May was found on September 19 and 22.
On September 26, the head of human resources,
Richard McPherson, and the head of labor relations,
Bob Kertz, held two meetings (one with the first and
third shifts, one with the second shift) with about sixty
people from the skilled trades. McPherson addressed
the groups about Chrysler’s harassment policy. Some
didn’t appreciate the reminder; they were upset that
skilled trades was being singled out and complained
that McPherson was telling them they could not have
Nos. 11-3000 & 11-3109 7
“fun” at work anymore. The meeting was just a meeting;
McPherson did not meet with the attendees or inter-
view them individually, even those who were upset by
his lecture. May, for his part, was upset that McPherson
gathered so few people. More than a thousand plant
employees had access to the areas where the notes
and graffiti were found. May told McPherson and
others that he thought Chrysler needed to do more. In
particular, he thought installing surveillance cameras
and swipe-key door locks (to monitor who was coming
and going from particular areas) would be a good idea.
Just a few days after the meeting, on September 30, there
was more graffiti: “Otto Cuban Jew die.” At least
five similar incidents with the same threatening
theme—“a good Jew is a dead Jew”—occurred between
September 30 and November 11. On December 7,
May found another menacing note in his toolbox. This
one told May that his “time is short” and proclaimed
“death to the Jews” and “we hate the Jews” signing
off with a “Heil Hitler” and swastika.
Soon after receiving the December 7 note, feeling that
nothing was being done to stop the harassment, May
contacted the Anti-Defamation League, a civil rights
organization focused on combating anti-Semitism. In a
letter dated December 26, 2002, a representative of the
Anti-Defamation League wrote to Chrysler’s general
counsel in Michigan to inform Chrysler that “Mr. May
has reportedly been the victim of numerous death
threats placed in his toolbox, scrawled on his lunchbox
and in the freight elevator as well as in other areas.” The
8 Nos. 11-3000 & 11-3109
letter reminded Chrysler that the Equal Employment
Opportunity Commission had issued a reasonable cause
determination but that the threats continued, and en-
couraged Chrysler to take all necessary remedial action.
In January 2003, the letter from the Anti-Defamation
League reached Scott Huller, a staff advisor in Chrysler’s
corporate diversity office. Huller’s responsibilities in-
cluded investigating civil rights issues at Chrysler’s
manufacturing facilities. According to Huller’s testimony,
he had not heard of May until he received the letter
from the Anti-Defamation League. The letter prompted
Huller to travel to the plant to interview May, and they
met for a few hours on January 16 and 17. May told him
he genuinely feared for his life and was distressed
and depressed. Once again, May recommended security
cameras. According to May, Huller was focused on
getting a list of suspects. He wanted names. The first day,
May refused. At trial, May explained that his attorney
told him not to “point the finger” at anybody without
direct proof. The second day, however, after consulting
with his attorney, May named nineteen employees he
had some reason to suspect. May also gave the police
a list of names.
It is not necessary to explain why May named each
person that he did—the investigation is over—but we
will say a few words about three people on May’s list
who were mentioned frequently at trial: Eldon Kline,
John Myers, and Dave Kuborn. Eldon Kline was on the
list because he was fired (briefly) for assaulting a
Hispanic employee, he had made racist remarks to May,
Nos. 11-3000 & 11-3109 9
and May had filed a grievance against him. John Myers
had also made racist comments to May and was close
friends with Kline. May saw Myers’ car (suspiciously,
May testified) near his own shortly before he discovered
it was vandalized, and so suspected his involvement.
As for Dave Kuborn (married to Kim Kuborn in HR),
there was no testimony that he had problems working
with minorities, like Kline and Myers; he made May’s
list because of their personal history. Dave Kuborn once
instructed May to hold open a solenoid on a malfunc-
tioning tire machine so the assembly line would not
have to stop. This was dangerous, apparently, and May
was upset that he was made to do it. He complained to
Chrysler and reported the incident to the Occupational
Safety and Health Administration (better known as
OSHA) and, eventually, Dave Kuborn was disciplined.
So Huller got what he wanted from May—a list of
names. Huller, however, did not interview anyone on
the list or instruct the local HR employees to do so
(and none did). Instead, Huller used the list to create a
template for further investigation. The template was
intended to help HR use plant entry and exit data (“gate-
ring records”) to determine who was in the plant at
the times when incidents might have occurred. Com-
pleting the spreadsheet was to be Kim Kuborn’s job,
not Huller’s, who did no more substantive work on
May’s case.
Four days after Huller’s meeting with May, more
graffiti appeared. And later that same month (January
2003), May reported that someone was calling his work
10 Nos. 11-3000 & 11-3109
extension and making derogatory remarks in a dis-
guised voice (essentially the same message as the notes
and graffiti). May reported the calls but nobody from
Chrysler discussed the details with him.
In March, there were two graffiti incidents and May
found another death-threat note in one of his toolbox
drawers. The note seemed to comment on the absence
of harassment in February: “Otto Cuban Jew muther
fucker not forget about you your time is coming we
will get YOU death to the Jews [swastika].” Chrysler’s
incident report documented that a police officer who
came to the plant to collect the note said that a security
camera should be installed to record future harassment.
The rest of 2003 followed a similar pattern.
! April: graffiti (2 incidents)
! May: graffiti (2 incidents)
! June: graffiti (3 incidents), a death-threat note, the
tire of the bike May used to get around the plant
was slashed, and the changing mat outside his
locker was vandalized
! July: graffiti (6 incidents)
! August: graffiti (5 incidents)
! September: graffiti (5 incidents)
! October: graffiti (2 incidents, hateful as ever:
“Hang the Cuban Jew”)
! November: graffiti (2 incidents) and a death-threat
note
Nos. 11-3000 & 11-3109 11
! December graffiti (1 incident)
Sometime in 2003, Chrysler implemented a protocol
for handling incidents involving May. According
to McPherson (the head of HR at the plant), the person
who found the graffiti or note was to notify HR
and security, and a picture would be taken. After the
incident was documented, someone from HR or security
would talk to whoever found the graffiti or the note
to establish when it was found. If the incident involved
graffiti, the area would be cleaned. Pictures of the
incident and details about when and where it hap-
pened (including when the area was last seen
without graffiti) were collected by Kim Kuborn, who
kept a detailed but not quite complete record of
May’s harassment in a large binder. As already men-
tioned, Kuborn was also responsible for reviewing gate-
ring records to determine who was recorded as being
at the plant when she believed a particular incident
may have occurred.
In May 2003, Chrysler’s lawyers retained Jack Calvert,
a forensic document examiner. Chrysler initially gave
Calvert pictures (or copies of pictures) of graffiti. Soon
Chrysler provided Calvert with an original note from
June 2003, which Kim Kuborn collected quickly after its
discovery, before the police arrived on the scene to take
it themselves, and he went to the police to view more
originals. Chrysler also gave him logbooks containing
daily entries from many employees on different shifts.
After reviewing this material, Calvert told Chrysler’s
counsel that he thought only one person was responsible
12 Nos. 11-3000 & 11-3109
for the graffiti and notes, but that he couldn’t identify
who. Based on what he had seen from the logbooks,
he wanted additional “exemplars” (samples of hand-
writing) from approximately sixty employees. Chrysler
responded with a variety of documents, including old
job applications. (To jump ahead a bit, Calvert continued
to collect exemplars throughout 2004 and into 2005. He
ultimately issued his report in July 2007. It was incon-
clusive. More on this soon.)
The incidents continued through 2004 and ended in 2005:
! January, 2004: graffiti (5 incidents)
! February: death-threat note in May’s toolbox
! March: graffiti (2 incidents)
! October: graffiti (2 incidents), May struck in the
back with a flying object, submission of swastika in
“Team Belvedere Logo Contest,” and May found a
dead bird dressed as Ku Klux Klansman in a vise
! February, 2005: May’s car vandalized, graffiti
(3 incidents), and a death-threat note (“Otto you
muther fucker bastard your family is not safe
Cuban Jew fuck scum Jew kike nigger lover kikes
are varmints spics are roaches niggers are
parasites Exterminate all kill them all We hate
fucken Jews niggers spics [swastika]”)
! June: graffiti and death-threat note on May’s
toolbox
! December: graffiti on May’s toolbox
Nos. 11-3000 & 11-3109 13
Chrysler’s outward response to May’s harassment
involved McPherson’s September 2002 group meetings,
Huller’s January 2003 interviews with May, ongoing
documentation of the incidents, and (usually) prompt
cleaning of graffiti. Behind the scenes, Kim Kuborn re-
viewed gate records to see who may have been around
the plant when incidents occurred and Calvert was
given more handwriting samples to analyze. Chrysler
also wanted the jury to know that the employees at the
Belvedere plant valued May as a colleague and cared
about him as a person. For example, Kim Kuborn testi-
fied that “this behavior was completely unacceptable in
our eyes, and we wanted to stop it and find out who
was responsible for it. We certainly didn’t want this
kind of activity going on in the plant and making one
of our team members as uncomfortable as it clearly was.”
Beyond cataloguing the actions it took in response to
May’s harassment, and somewhat at odds with the em-
pathy expressed by some employees for May’s predica-
ment, Chrysler’s defense had another (rather unsettling)
theme: May did it all to himself. Chrysler kept this de-
fense in the background and at times seemed to deny
it was part of its defense at all. For example, when con-
fronted about whether Chrysler really believed May
was the culprit, Kim Kuborn said, “I have no evidence
that he did this himself.” Chrysler left it primarily to
Jack Calvert, the forensic document examiner, and Rosa-
lind Griffin, a psychiatrist hired by Chrysler to analyze
May, to make the case against May, to argue that May
was not being victimized by death threats and suffering
because of Chrysler’s inaction, but that, more likely,
Chrysler was actually the victim of May’s lies.
14 Nos. 11-3000 & 11-3109
We have already summarized the mechanics of Jack
Calvert’s operation. He was given samples of graffiti
and notes and known exemplars (handwriting samples
from plant employees), and carefully compared the
two. After his initial look at the materials, there were ap-
proximately sixty employees he could not rule out, and
he requested more samples of their writing. He was
given more samples and, during 2004 and 2005, whittled
his list down to three. He was never able to reach a con-
clusion about who did it, but he could only say that
there was more evidence “that [this person] did author
the material than that he did not” about one em-
ployee—Otto May, Jr. Calvert’s testimony was chal-
lenged, of course. The jury heard that Calvert’s list of
possible authors was reduced not just by his own pro-
fessional opinion but also by Chrysler informing him
that twenty-six employees could be removed from con-
sideration because they were not at the plant at the
time of one of the incidents. The jury heard that those
removed included Eldon Kline, John Myers, and Dave
Kuborn. The jury also heard testimony that May was
not eliminated as a possible perpetrator even though
he, too, was not present when some of the incidents
occurred. Chrysler never gave that information about
May to Calvert. Chrysler did, however, give Calvert
a large number of samples of May’s writing, including
May’s notes documenting the harassment where, ac-
cording to May’s testimony, he tried to copy graffiti
exactly as printed.
Griffin, the psychiatrist hired by Chrysler, also had
a tough assessment of May’s role in the harassment.
Nos. 11-3000 & 11-3109 15
According to Griffin, May has a number of personality
disorders. She testified that he is histrionic, narcissistic,
paranoid, and, less technically, deceptive. As she put it,
he is the kind of person who will “scream louder and
louder wolf, wolf, wolf, until they have your attention
until you can see that they are very important” and
who assumes “people are out to get you and that
they’re also doing things to persecute you and that they
are planning your demise, and there’s a conspiracy to
bring about your downfall.” In Griffin’s opinion, May
did not suffer from depression and had no post-traumatic
stress disorder. “[T]he injuries that he alleges was
caused by his employer were his own demons within
himself.” May’s psychotherapist, Dana Kiley, who
May had been seeing for eight years, told a different
story about May. In Kiley’s opinion, May had been seri-
ously depressed, and he did not think May had any of
the personality disorders Griffin did—not histrionic,
narcissistic, or paranoid. He did not think May was
deceptive or that the harassment was a hoax.
After a seven-day trial, the jury also rejected
Chrysler’s implication. And beyond that, the jury
decided that Chrysler’s efforts to stop the harassment
were inadequate, and substantially so, and accordingly
returned a large verdict for May. As explained in
our opening summary, the jury awarded May $709,000
in compensatory damages and $3.5 million in punitive
damages. The compensatory damage award was
remitted to $300,000 and the district court granted Chrys-
ler’s Rule 50(b) motion for judgment as a matter of law
on punitive damages. Both parties appeal.
16 Nos. 11-3000 & 11-3109
II. Discussion
We review de novo a district court’s grant or denial of a
Rule 50(b) motion for judgment as a matter of law.
Ekstrand v. Sch. Dist. of Somerset, 683 F.3d 826, 828 (7th
Cir. 2012); Kahn v. Bland, 630 F.3d 519, 523 (7th Cir. 2010).
Thus, like the district court, we decide whether the
jury had “a legally sufficient evidentiary basis” for
its verdict. Fed. R. Civ. P. 50(a)(1); Reeves v. Sanderson
Plumbing Prods., Inc, 530 U.S. 133, 149 (2000); Thomas v.
Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 300-01 (7th Cir.
2009). To do so, we consider all the evidence in the
record and “construe the facts strictly in favor of the
party that prevailed at trial.” Schandelmeier-Bartels v.
Chicago Park Dist., 634 F.3d 372, 376 (7th Cir. 2011). That
includes drawing all reasonable inferences in that
party’s favor and disregarding all evidence favorable to
the moving party that the jury is not required to be-
lieve. Reeves, 530 U.S. at 151; Schandelmeier-Bartels,
634 F.3d at 376. Although we must determine that more
than “a mere scintilla of evidence” supports the verdict,
Hossack v. Floor Covering Assoc. of Joliet, Inc., 492 F.3d
853, 859 (7th Cir. 2007), we do not make credibility de-
terminations or weigh the evidence, Reeves, 530 U.S. at
150. In other words, our job is to decide whether a
highly charitable assessment of the evidence supports
the jury’s verdict or if, instead, the jury was irrational
to reach its conclusion. See, e.g., Von der Ruhr v. Immtech
Int’l, Inc., 570 F.3d 858, 868 (7th Cir. 2009).
Nos. 11-3000 & 11-3109 17
A. Liability
To prevail on his hostile work environment claim,
May had to prove that he was subject to unwelcome
harassment based on his race, religion, or national
origin, that it was sufficiently severe or pervasive to
create a hostile or abusive work environment, and that
there is a basis for employer liability. See, e.g., Williams
v. Waste Mgmt., 361 F.3d 1021, 1029 (7th Cir. 2004);
Mason v. S. Ill. Univ., 233 F.3d 1036, 1043 (7th Cir. 2000).
Of these, the only contested issue at trial and on ap-
peal is employer liability. Chrysler would not be liable,
of course, if May’s harassment was self-inflicted. If
May clears that basic hurdle, because his claim alleges
harassment by coworkers, Chrysler could be liable for
the hostile work environment if it did “not promptly
and adequately respond to employee harassment.” Suther-
land v. Wal-Mart Stores, Inc., 632 F.3d 990, 994 (7th
Cir. 2011). That means, it needed to “respond in a
manner reasonably likely to end the harassment.” Id. at
995 (citing Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 637
(7th Cir. 2009)). What is “reasonably likely to end the
harassment,” of course, depends on “the particular facts
and circumstances of the case.” McKenzie v. Ill. Dep’t of
Transp., 92 F.3d 473, 480 (7th Cir. 1996). And those “facts
and circumstances” include the “gravity of the harass-
ment alleged.” Id. It should go without saying that a
reasonable response to taunting or insults may be
an unreasonable response to death threats or physical
violence. Finally, we recognize that success or failure
stopping the harassment does not determine whether an
employer is liable. Nevertheless, “the efficacy of an em-
18 Nos. 11-3000 & 11-3109
ployer’s remedial action is material to [a] determination
whether the action was reasonably likely to prevent the
harassment from recurring.” Cerros v. Steel Techs., Inc.,
398 F.3d 944, 954 (7th Cir. 2005).
In this case, the jury was presented ample evidence
to conclude that Chrysler did not “promptly and ade-
quately” respond to the harassment. Consider only the
death-threat notes and graffiti. By June 2002, there
had been two relatively minor incidents. The graffiti was
not pleasant, but it had not yet turned threatening.
Its tenor started to change at the end of August when
“Cuban fag Jew” appeared. A few days later, May found
the “Yes, I am a Bad American” note in his toolbox. That
note, recall, included, among other things, the phrase “kill
Jew.” Approximately one week later, on September 12,
May received a more alarming threat: “no one can help
you fucken Cuban Jew We will get you Death to the
Jews Cuban fag Die.” A full two weeks later, Chrysler
held two short meetings with about sixty employees
total. Within days of those meetings, the graffiti and
death threats resumed. There were more than half-a-
dozen incidents between the McPherson meetings and
the next notable action by Chrysler in January 2003,
when Scott Huller, prompted by a letter from the Anti-
Defamation League, traveled from Chrysler’s corporate
offices in Michigan to interview May. Huller came away
from those meetings with May’s list of suspects. Huller
took that information and created a template for HR at
the plant to use in its investigation. But nobody on May’s
list was interviewed. Within days of Huller’s meetings
with May, there was more graffiti. And soon after that
Nos. 11-3000 & 11-3109 19
graffiti, there were threatening calls to May on his work
extension. There were seven more incidents—including
another death-threat note in May’s toolbox—before
Chrysler took the next step in its investigation, retaining
Jack Calvert, the handwriting analyst. That was in May
2003. Every month for the rest of 2003 brought more
graffiti, death-threat notes, or both.
For the purposes of Chrysler’s liability, we can stop
here. During the first year of written threats and harass-
ment, what had Chrysler done? They held a meeting.
They interviewed May. And, one year in, they hired
Calvert. Did that amount to a “prompt and adequate”
response to multiple racist and anti-Semitic death
threats? Especially in light of the gravity of the harass-
ment, the jury was presented with more than enough
evidence to conclude that Chrysler had not done
enough. Chrysler, of course, characterizes its efforts
differently. As it has it, the company was like a duck on
a river, looking unperturbed but paddling like crazy
beneath the surface. Kim Kuborn, for instance, testified
that she was all-but consumed by May’s case and that
she had never worked near as much on any other HR
matter. Maybe that’s true. But the jury certainly did
not have to believe that her efforts at documentation
with the gate-ring records were “adequate” or, even if it
thought her efforts were adequate, that they started
“promptly” enough for Chrysler to avoid liability.
In addition to hearing take-it-or-leave-it testimony
about Chrysler’s behind-the-scenes efforts, the jury
heard about what Chrysler did not do. Two things
20 Nos. 11-3000 & 11-3109
stand out. First, the jury heard that Chrysler did not
interview anyone on May’s list. Not one person. When
an employee has been subjected to repeated threats
over the course of many months and the employer has
a list of names, the employer’s investigator should talk
to some of those people—or at least a jury would not
be irrational to think so. And perhaps that would be
asking too much of Chrysler if it had explained to the
jury that it had a different approach to the investiga-
tion that was also reasonably likely to be effective. See
Williams, 361 F.3d at 1030 (an employer’s response need
not be perfect or “textbook” to avoid liability for a
hostile work environment). But the jury heard nothing
of the sort. It heard that Chrysler documented the
incidents and used gate-ring records to narrow the field
of potential suspects. In the face of repeated vicious
death threats, a jury could conclude that Chrysler’s
document-and-narrow approach was not good enough.
Second, Chrysler did not install a single surveillance
camera. May asked Chrysler to install cameras and the
police made the same suggestion. Chrysler’s response
was consistent: The plant is too massive, four million
square feet, the size of a terminal at O’Hare International
Airport. It is just not possible to cover it with cameras.
What’s more, the union would (probably) not allow it.
Installing cameras with non-union labor would violate
the contract with the union. And if cameras were some-
how put up with union labor, if that could be negotiated,
the perpetrator would know where the cameras were,
and so would avoid them easily. But Chrysler’s claims
about what the union would allow and what was
Nos. 11-3000 & 11-3109 21
feasible were undermined by testimony that there was
no hard rule that cameras could not be used, but
only that the union would require notice, perhaps even
something as simple as a sign: “surveillance cameras in
use.” And, more importantly, Chrysler’s cameras-not-
possible position was undermined by the fact that in
2008 it did put up a camera (neatly concealed in a
fake emergency-lighting fixture) to catch someone de-
stroying company property.
As in the 2008 case, May’s situation did not require
an encompassing surveillance system. A single camera
covering May’s large toolbox (a tool chest, really)—where
most of the threatening notes were found—would have
been an important step. McPherson, the HR manager,
testified that he considered cameras and that he even
discussed the issue with the president of the union.
According to McPherson, the union president said that
if the camera caught someone doing something wrong,
and if that employee were terminated, the union would
grieve the termination. The parties dispute whether
that means the union would grieve the termination
of someone making racist death threats or if it
would grieve the termination of someone else caught
doing something improper, like sleeping on the job.
Here, we look at the evidence in the light most favorable
to May. But regardless of how we interpret McPherson’s
comments about which dismissals the union would
grieve, Chrysler still had an obligation to take steps
reasonably calculated to end the harassment. It is not
excused from taking those steps because it is concerned
about friction with the union. Even if we assume (im-
22 Nos. 11-3000 & 11-3109
plausibly) that the dismissal of May’s harasser would
only have been temporary—that he would have to be
rehired after the grievance process—or even if we
assume that the camera would not have caught the
harasser or would have been discovered and torn out,
it would have been a step reasonably likely to end,
reduce, or deter the harassment.
Although we mention Chrysler’s decisions not to in-
terview and not to put up a camera, we understand
that we do not “sit as a super-personnel department.”
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 978
(7th Cir. 2004). We certainly do not, but in deciding this
appeal we are required to assess the response of the
actual personnel department. We did not conjure the
ideas of interviewing the employees May considered
suspects (or those Chrysler did) or of installing cameras;
evidence about why Chrysler did not do those things
was presented at trial. The jury had the right to con-
sider that evidence—evidence of exactly what options
Chrysler had and entertained—in deciding whether
Chrysler took actions reasonably calculated to end the
harassment. The evidence easily supports the jury’s
decision that Chrysler did not.
What about the idea that May himself was the culprit?
Calvert, the most important witness on this point, did not
conclude that May was the author but only that there
was more evidence that May was the author than that
he was not. And Griffin, the psychiatrist, testified that
May was psychologically disposed, capable, or perhaps
inclined, to commit such an astounding deception. That
Nos. 11-3000 & 11-3109 23
was evidence the jury could have run with but did not.
That it did not is unsurprising in light of the testimony
from Chrysler employees that they liked May, thought
he was truthful, part of the team, and did not think
he would have “harassed” himself. And there are also
May’s own denials. So, to be sure, Chrysler presented
some evidence of May’s guilt, but that evidence
certainly did not (and does not) force any particular
conclusion. At most, it raised a question. It was for the
jury to answer, and it did, and we will not (and on
these facts cannot) second-guess that judgment here.
Ekstrand, 683 F.3d at 828-29 (“The point is, we are gen-
erally forbidden from reexamining the facts found by
the jury at trial.”).
B. Punitive Damages
May can recover punitive damages only if he presented
sufficient evidence for the jury to conclude that Chrysler
acted with “malice or with reckless indifference to [his]
federally protected rights.” 42 U.S.C. § 1981a(b)(1). To
act with “malice” or “reckless indifference,” “an employer
must at least [act] in the face of a perceived risk that
its actions will violate federal law.” Kolstad v. Am.
Dental Assoc., 527 U.S. 526, 536 (1999). No evidence of
“egregious” or “outrageous” conduct by the employer
is required, although, of course, such a showing could
support a conclusion that the employer acted with the
requisite mental state. Id. at 535, 538. “ ‘[A] positive
element of conscious wrongdoing is always required.’ ”
Id. at 538 (quoting C. McCormick, Law of Damages 280
24 Nos. 11-3000 & 11-3109
(1935)). If May proves that Chrysler acted with the requi-
site malice or reckless indifference, Chrysler may avoid
liability for punitive damages if it can show that it
engaged in good-faith efforts to comply with Title VII.
Id. at 545; Bruso v. United Airlines, Inc., 239 F.3d 848,
858 (7th Cir. 2001).
We don’t disagree with the district judge’s determin-
ation that the jury’s punitive damages verdict was
without a legally sufficient evidentiary basis. While
Chrysler could have done more and undertaken dif-
ferent measures, its actions did not evince a reckless
disregard for May’s federally protected rights. To the
contrary, Chrysler employed several strategies to stop
and prevent the harassment of May. When May’s cars
were vandalized in early 2002, Chrysler allowed him
to park in the salaried lot, which is monitored, albeit
incompletely, by cameras. Chrysler had all supervisors
meet with their employees to review Chrysler’s anti-
harassment policy. And in September 2002, McPherson
held a pair of meetings with the skilled trades in the
paint department about Chrysler’s harassment policy.
In January 2003, Huller met with May over two days
and obtained a list of the names of persons May sus-
pected might be involved. From this list, Huller created
a template for use in Chrysler’s investigation. In 2003,
Chrysler implemented a protocol for handling inci-
dents against May, which included prompt clean-up
of graffiti, documentation of the incidents, taking photo-
graphs if possible, notification to Human Resources
and security, and discussions with the person or
persons who discovered the graffiti or note and any
Nos. 11-3000 & 11-3109 25
other persons in the area when the graffiti or note was
found. The paint department area manager, Thomas
Harvey, and his supervisors were involved in imple-
menting the protocol.
Chrysler worked with its security team to increase
their presence in area walk-throughs and heightened
the supervisors’ and managers’ awareness and attentive-
ness to the harassment. Management increased its
presence with walk-throughs as well. Kuborn main-
tained a detailed, albeit incomplete, record of harass-
ment of May. She conducted “dozens” of time record
and gate-ring records analyses to determine who was
present at the plant when a particular incident may
have occurred. Kuborn also reviewed “orphan reports,”
which are electronic records that reflect an employee’s
entering the plant when he is not scheduled to work, in
an effort to determine who might have been involved
in a given incident. Although no formal interviews were
conducted, there were many informal conversations
with persons who were in the areas involved. Kuborn
explained that “there were many other conversations
that happened that didn’t end up in the binder be-
cause they didn’t contain any useful information.”
When the harassment did not stop, Chrysler continued
and even increased, to some extent, its efforts to protect
May. In April 2003, when graffiti appeared in a remote
locker room that was difficult to monitor, Chrysler
moved the lockers to an open area near the main-
tenance shop where they could more easily be moni-
tored. Beginning in May 2003, Chrysler conducted diver-
sity training to raise awareness among all employees. Also
26 Nos. 11-3000 & 11-3109
in May 2003, Chrysler retained a handwriting analyst
and continued to utilize his expertise in 2004 and 2005.
Then in early August 2003, when Steve Hughes took
over as paint shop manager, Kuborn met with him to
provide him some history on May’s situation. Hughes
held town hall meetings with his employees in all three
shifts in which he introduced himself and discussed
the importance of a good work environment. Hughes
also addressed May’s situation, stating that the harass-
ment needed to stop and “that [he] would fire the
person if [he] found [him].” The evidence showed that
while far from perfect, Chrysler’s actions did have a
positive effect on the harassment: the harassment’s fre-
quency gradually decreased from one year to the next,
and eventually ceased in December 2005.
The record supports the district judge’s determina-
tion that Chrysler’s failure to comply with Title VII
by preventing the harassment against May was not mali-
cious or reckless. Chrysler had a written anti-harassment
policy, which is relevant to the assessment of its good-
faith efforts, though not sufficient by itself to insulate
it from punitive damages liability. Hertzberg v. SRAM
Corp., 261 F.3d 651, 663 (7th Cir. 2001); Bruso, 239 F.3d
at 858. Chrysler also provided training to its employees
and encouraged them to come forward with any infor-
mation that they might have about the harassment of
May. Chrysler involved “about 20 people” ranging
from hourly employees to corporate office personnel in
its efforts to stop and prevent the harassment of May.
Kuborn testified that she spent approximately three
hours a day on May and that she and McPherson dis-
cussed the May situation “probably on a daily ba-
Nos. 11-3000 & 11-3109 27
sis”—whether they were “doing enough,” “doing every-
thing that [they] possibly could,” and whether “there
[was] something that we were not considering that we
should have been.” Kuborn could not recall any other
employment matter involving one person that involved
more time, focus, and angst on her part. Similarly,
McPherson could not recall any other situation at
Chrysler where “we did more over a prolonged period
of time together as a team to try to work through an
issue.” Indeed, Chrysler considered other measures,
for example, an undercover investigator and additional
surveillance cameras, but decided not to utilize them.
The district court was correct to conclude that the
evidence is simply insufficient to support a finding
that Chrysler acted with “malice or reckless indiffer-
ence” to May’s “federally protected rights.”
To be sure, Chrysler could have done more to stop
the harassment. But given the situation that it faced—an
anonymous harasser, an assembly plant covering four
million square feet, and a three-shift-a-day operation,
Chrysler’s response was enough as a matter of law to
avoid punitive damages liability.
III. Conclusion
The district court’s judgment finding in favor of May
and against Chrysler on liability and finding in favor
of Chrysler and against May on punitive damages and
vacating the jury’s punitive damages award is A FFIRMED.
5-14-13