Otto May, Jr. v. Chrysler Group LLC ( 2012 )

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 RGUED A PRIL 13, 2012—D ECIDED A UGUST 23, 2012
Before B AUER, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. More than fifty times between
2002 and 2005, Otto May, Jr., a pipefitter at Chrysler’s
Belvedere Assembly Plant, was the target of racist, xeno-
phobic, homophobic, and anti-Semitic graffiti that ap-
2 Nos. 11-3000 & 11-3109
peared in and around the plant’s paint department.
Examples, 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. Dif-
ferent 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
Nos. 11-3000 & 11-3109 3
Title VII and 42 U.S.C. § 1981. Only his hostile work
environment claim survived summary judgment and
made it to trial. And at trial there were only four con-
tested issues: First, whether someone other than May
was responsible for the harassment. (Chrysler, obviously,
would not be liable for self-inflicted “harassment.”)
Second, whether Chrysler took steps reasonably cal-
culated 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 pre-
sented 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 com-
pensatory damages award was excessive. Rather than
returning to trial on compensatory damages, May
accepted remittitur to $300,000. On the third issue,
punitive damages, the district court sided with Chrysler,
and concluded that May failed to present sufficient evi-
dence for the jury to decide that Chrysler recklessly
disregarded his federally-protected rights. The verdict
on punitive damages was therefore vacated. Both
parties appeal. Chrysler argues that it should not be held
liable at all; May argues 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
The district court correctly rejected Chrysler’s
motions for judgment as a matter of law on liability.
It should have also rejected Chrysler’s post-verdict
motion for judgment as a matter of law on punitive
damages. We reverse in part to reinstate the verdict.
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 di-
vorced and remarried several times, but his connection
to Judaism has endured, and he identifies as a Messianic
Jew. Since 1988, May has worked at Chrysler’s Belvedere
Assembly Plant, in Belvedere, Illinois, as a pipefitter,
repairing and maintaining equipment used to paint and
assemble cars.
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
Nos. 11-3000 & 11-3109 5
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 person in human
resources at Chrysler’s headquarters in Michigan. Ap-
proximately ten days later, Kim Kuborn, a human re-
sources 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 monitored by
cameras. This solution didn’t much please May, how-
ever, 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
“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 hand-written 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
6 Nos. 11-3000 & 11-3109
entitle you to anything” was hand-written “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, and 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
“fun” at work anymore. The meeting was just a
meeting; McPherson did not meet with the attendees
or interview 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
Nos. 11-3000 & 11-3109 7
to do more. In particular, he thought installing sur-
veillance 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
letter reminded Chrysler that the EEOC had issued a
reasonable cause determination but that the threats
continued, and encouraged Chrysler to take all neces-
sary remedial action.
In January 2003, the letter from the Anti-Defama-
tion League reached Scott Huller, a staff advisor in Chrys-
ler’s corporate diversity office. Huller’s responsibilities
8 Nos. 11-3000 & 11-3109
included investigating civil rights issues at Chrysler’s
manufacturing facilities. According to Huller’s testi-
mony, 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 recom-
mended 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, 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 (suspi-
ciously, 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
Nos. 11-3000 & 11-3109 9
Myers; he made May’s list because of their personal
history. Dave Kuborn once instructed May to hold
open a solenoid on a malfunctioning 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 Ad-
ministration (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.
Completing 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
extension and making derogatory remarks in a disguised
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
10 Nos. 11-3000 & 11-3109
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
! 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
Nos. 11-3000 & 11-3109 11
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 happened
(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 mentioned, Kuborn was also
responsible for reviewing gate-ring records to deter-
mine 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 re-
sponsible for the graffiti and notes, but that he couldn’t
identify who. Based on what he had seen from the log-
books, he wanted additional “exemplars” (samples of
handwriting) from approximately sixty employees. Chrys-
ler 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.)
12 Nos. 11-3000 & 11-3109
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 var-
mints spics are roaches niggers are parasites Ex-
terminate 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
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 testified
Nos. 11-3000 & 11-3109 13
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 empa-
thy 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 defense
in the background and at times seemed to deny it was
part of its defense at all. For example, when confronted
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 Rosalind 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.
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 approxi-
mately 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
14 Nos. 11-3000 & 11-3109
conclusion 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
employee—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 profes-
sional 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, according 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. Ac-
cording 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 as-
sumes “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
Nos. 11-3000 & 11-3109 15
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 (sic) 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
her opinion, May had been seriously depressed, and she
did not think he had any of the personality disorders
Griffin did—not histrionic, narcissistic, or paranoid.
She did not think May was deceptive or that the harass-
ment 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 puni-
tive 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.
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.
16 Nos. 11-3000 & 11-3109
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 believe. 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 cred-
ibility determinations 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).
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.
Nos. 11-3000 & 11-3109 17
Univ., 233 F.3d 1036, 1043 (7th Cir. 2000). Of these, the
only contested issue at trial and on appeal is em-
ployer 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 ade-
quately respond to employee harassment.” Sutherland
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 harass-
ment,” 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 harassment
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 vio-
lence. Finally, we recognize that success or failure
stopping the harassment does not determine whether an
employer is liable. Nevertheless, “the efficacy of an em-
ployer’s remedial action is material to [a] determina-
tion 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
18 Nos. 11-3000 & 11-3109
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-Defama-
tion 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
graffiti, there were threatening calls to May on his
work extension. There were seven more incidents—
including another death-threat note in May’s tool-
box—before Chrysler took the next step in its investiga-
tion, retaining Jack Calvert, the handwriting analyst.
That was 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-
Nos. 11-3000 & 11-3109 19
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 unpertured 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 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 investigation that was also
reasonably likely to be effective. See Williams, 361 F.3d
20 Nos. 11-3000 & 11-3109
at 1030 (an employer’s response need not be perfect or
“textbook” to avoid liability for a hostile work environ-
ment). 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 ap-
proach 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 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 somehow
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
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 some-
thing 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 destroying
company property.
Nos. 11-3000 & 11-3109 21
As in the 2008 case, May’s situation did not require
an encompassing surveillance system. A single camera
covering May’s large tool box (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 some-
thing 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 (implausibly) 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
22 Nos. 11-3000 & 11-3109
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 per-
sonnel department. We did not conjure the ideas of
interviewing the employees May considered suspects
(or those Chrysler did) or of installing cameras; evi-
dence about why Chrysler did not do those things
was presented at trial. The jury had the right to
consider 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 decep-
tion. That 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
Nos. 11-3000 & 11-3109 23
(and on these facts cannot) second-guess that judgment
here. Ekstrand, 683 F.3d at 828 (“The point is, we are
generally forbidden from reexamining the facts found
by the jury at trial.”).
B. Punitive Damages
May can recover punitive damages only if he pre-
sented sufficient evidence for the jury to conclude that
Chrysler acted with “malice or with reckless indif-
ference to [his] federally protected rights.” 42 U.S.C.
§ 1981a(b)(1). To act with “malice” or “reckless indif-
ference,” “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.
We have already explained why it was appropriate
for Chrysler to be held responsible for the hostile work
environment: Its response was shockingly thin as mea-
sured against the gravity of May’s harassment. And
that would have been true if this kind of harassment
would have lasted only for months or a year. The harass-
ment in this case continued for over three years.
There were over seventy incidents. As the harassment
persisted over months and years, Chrysler had to “pro-
gressively stiffen” its efforts. EEOC v. Xerxes Corp., 639
F.3d 658, 670 (4th Cir. 2011) (quoting Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998)). It was
24 Nos. 11-3000 & 11-3109
unreasonable for Chrysler to “vainly hope[] that . . . the
same response as before [would] be effective.” Id.
If it was negligent to respond to weeks and months
of death threats with a pair of meetings and documenta-
tion, what happens when that inadequate response
does not improve over the course of a year? Two years?
Three years? At some point the response sinks from
negligent to reckless, at some point it is obvious that an
increased effort is necessary, and if that does not
happen, punitive damages become a possibility. The
facts in this case do not force us to hazard a precise
rule about when sticking with the same inadequate strat-
egy becomes reckless. May’s harassment continued for
years, the threats were extremely serious, and there
was scant evidence of an increased effort over time. In
short, the jury had plenty to go on. Recall, Chrysler held
a pair of meetings in September 2002, documented the
events, did gate-ring analysis for many incidents, and
used a handwriting analyst. Those measures were all
in place approximately one year into the harassment.
It continued for two more years.
Chrysler argues that they cannot be liable for
punitive damages because they made a good-faith effort
to comply with the requirements of Title VII. Bruso v.
United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001). A
good-faith effort at compliance, however, is not a matter
of declarations about how much the employer cared
about a victim of harassment or about how hard certain
HR employees say they worked to rectify the situation.
When those declarations are belied by the employer’s
actions, talking a good game will not immunize an em-
Nos. 11-3000 & 11-3109 25
ployer from a judgment that it was reckless. The jury
reasonably determined that Chrysler’s actions did not
add up to a good faith effort to end May’s harassment,
and, much less, that its actions were (at least) reckless.
And even if we focus on Chrysler’s declared feelings
about May, the jury was presented evidence that
Chrysler was not as concerned for May as it was
about getting rid of him and keeping costs down. In April
2003, for example, Richard McPherson met with Kim
Kuborn and Judith Caliman, one of Chrysler’s lawyers, to
discuss the harassment. One of McPherson’s notes says:
“Even if we win, we still have Otto May.” When asked
about this statement at trial, McPherson explained: “I’m
saying even if we win, Otto May is still working for
the company. So, do we really win. I mean, win, lose, or
draw, my opinion, is there a winner, you know.”
McPherson then answered again differently and said
that he was concerned that May would not feel good “if
we win as a company and Mr. May walks away.” We do
not say, of course, what the jury had to believe about
this testimony, but we can say that the jury did not have
to believe Chrysler’s own statements about how much
it was concerned for May and how much it wanted to
protect him from harassment.
Sticking to matters that are undisputed, we think it is
also worth mentioning that Kim Kuborn, one of the HR
employees principally responsible for May’s case, never
recused herself from the investigation despite the fact
that her husband, Dave Kuborn, was on May’s list of
suspects. May had at least some reason to put him there:
Dave Kuborn had May do something May considered
26 Nos. 11-3000 & 11-3109
dangerous, May complained to OSHA, and Dave
Kuborn was disciplined. But Kim Kuborn did not
recuse herself because she “knew he wasn’t the person
involved” because he was not at the plant when some of
the incidents occurred. (She “can’t imagine a situation
where there could be more than one person involved.”)
McPherson testified that his understanding was that
“someone at corporate” was looking into Dave Kuborn.
Even assuming that vague statement to be true, there
is still no question that Kim Kuborn was at the center
of Chrysler’s investigation after she learned that May
had named her husband as a suspect.
The bottom line in this case is simple, even if a
little difficult to digest. May was subjected to repulsive
harassment for more than three years. Chrysler sus-
pected that May did it all himself. The jury, however,
disagreed; Chrysler, it concluded, had not taken
reasonable measures to stop the harassment. That was
liability. (And, as explained, we have no doubt that the
record easily supports the jury’s decision on that issue.)
With liability fixed, May’s case for punitive damages
is straightforward and persuasive: Chrysler did not
increase its (meager) efforts over a long stretch of time
in the face of remarkably awful harassment, and that
was reckless. It would be nonsensical to eliminate the
award of punitive damages based on sympathy for an
argument that May’s harms were self-inflicted if another
issue, already resolved (liability), requires that they
were not. On these unusual facts, there’s no splitting
the difference. The jury’s verdict on liability is affirmed
and the jury’s verdict on punitive damages will be rein-
stated.
Nos. 11-3000 & 11-3109 27
Before concluding, we have to address two more is-
sues. First, the district court conditionally granted Chrys-
ler’s motion for a new trial on punitive damages. It did
so for the same reason it granted Chrysler’s motion for
judgment as a matter of law, that is, because it believed
the evidence was insufficient. For the reasons already
stated, even under the high standard we use to evaluate
a district court’s grant of a new trial, we believe that was
a mistake. See Tart v. Ill. Power Co., 366 F.3d 461, 479
(7th Cir. 2004). There is ample evidence to support
the jury’s verdict; the district court abused its discretion
by granting a new trial. Id.
Second, although the district court did not rule on
whether the jury’s $3.5 million award of punitive
damages is “grossly excessive” and therefore violates
due process, State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 416 (2003); BMW v. Gore, 517 U.S. 559, 562
(1996), we asked the parties for supplemental briefing
so that we might consider that question now, Smith v.
Kmart Corp., 177 F.3d 19, 33 (1st Cir. 1999); Abernathy v.
Superior Hardwoods, Inc., 704 F.2d 963, 974 (7th Cir.
1983) (discussing this court’s authority to order remittitur
(citing 11 Wright & Miller, Federal Practice & Procedure
§ 2820)). After reviewing the parties’ submissions, we
are convinced that the punitive damage award does not
violate the Constitution and should therefore be
reinstated in full. The award is substantial—five times
the original compensatory damages and eleven times
the remitted amount—but Chrysler’s long-term reckless-
ness in the face of repeated threats of violence against
May and his family is sufficiently reprehensible to
28 Nos. 11-3000 & 11-3109
support it. State Farm, 538 U.S. at 419 (discussing “indif-
ference to or a reckless disregard of health or safety” and
“repeated actions” as opposed to “isolated incident” as
significant factors in assessing the reprehensibility of
defendant’s conduct). We recognize that “few awards
exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy
due process.” Id. at 425 (emphasis added) (ratio of 145 to 1
grossly excessive). But “[i]n most cases, the ratio will be
within a constitutionally acceptable range, and remittitur
will not be justified on this basis.” BMW, 517 U.S. at 583
(“breathtaking” 500 to 1 ratio grossly excessive); see also
Kapelanski v. Johnson, 390 F.3d 525, 534 (7th Cir. 2004) (3.3
to 1 ratio “easily permissible”); Mathias v. Accor Econ.
Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 2003) (37 to 1 ratio
upheld). Of the three “guideposts” we are required to
consider in deciding whether an award of punitive dam-
ages violates due process—reprehensibility of defendant’s
conduct, ratio of compensatory to punitive damages
award, and disparity of the award with “civil penalties
authorized or imposed in comparable cases,” State Farm,
538 U.S. at 428 (quoting BMW, 517 U.S. at 575)—only the
third factor supports a conclusion that the award is
excessive. If this case were only under Title VII, and not
also § 1981, May’s damages would be capped at $300,000.
That is a relevant consideration. But especially where
the other two (and more important) guideposts cut the
other way, “although the punitive damages awarded
here are more than the damages available under Title VII
for analogous conduct, the difference is not enough,
by itself, to suggest that the punitive damages award
violates due process.” Goldsmith v. Bagby Elevator Co.,
Nos. 11-3000 & 11-3109 29
513 F.3d 1261, 1284 (11th Cir. 2008) (quoting Bogle v.
McClure, 332 F.3d 1347, 1362 (11th Cir. 2003)) (punitive
damages for a hostile work environment under § 1981
five times the Title VII statutory cap not excessive).
III. Conclusion
We affirm the district court’s judgment on liability.
We reverse the district court’s judgment on punitive
damages and we also reverse the district court’s condi-
tional grant of a new trial. The case is remanded to rein-
state the jury’s verdict on punitive damages.
A FFIRMED IN P ART, R EVERSED IN P ART,
AND R EMANDED .
B AUER, Circuit Judge, concurring in part and dissenting
in part. I would affirm the district court’s judgment
on both liability and punitive damages for the reasons
stated in the district court’s excellent opinion. Other
than that, I join in all portions of the majority opinion
approving the rulings of the district court.
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