Byrd v. Illinois Department of Public Health , 423 F.3d 696 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1416
LESTER BYRD,
Plaintiff-Appellee,
v.
ILLINOIS DEPARTMENT OF
PUBLIC HEALTH and ERIK WHITAKER,
successor in office to JOHN LUMPKIN,
Director, State of Illinois Department of Public
Health, in his official capacity,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00 C 705—Michael J. Reagan, Judge.
____________
ARGUED JANUARY 13, 2005—DECIDED SEPTEMBER 8, 2005
____________
Before ROVNER, EVANS and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Lester Byrd sued his employer
for race discrimination and retaliation under Title VII. A
jury found against Byrd on his discrimination claim and in
favor of Byrd on the retaliation claim. Byrd’s employer, the
Illinois Department of Public Health (“Department”),
appeals, asking this court not only to vacate the judgment
in favor of Byrd but also to enter judgment in its favor on
the retaliation claim. We vacate and remand for a new trial.
2 No. 04-1416
I.
Byrd, an African-American man, began working for the
Department in 1985 as a Public Health Specialist Trainee.
Over the years, he worked his way up to his current
position of Public Health Specialist III. In that capacity,
Byrd serves as a Regional Epidemiologist in the Depart-
ment’s Communicable Disease Section. His duties include
investigating and preventing outbreaks of communicable
diseases in his region, training others in infectious diseases,
and ensuring compliance with the Department’s rules and
regulations by local health authorities, hospitals and
doctors. The Department’s main office is in Springfield and
there are various regional offices throughout the State.
Byrd works at the Edwardsville Regional Office. The State
has three other Regional Epidemiologists, one each in the
Marion, Rockford and Chicago Regional Offices. The other
three Regional Epidemiologists are Caucasian. Byrd reports
to Kate Kelly, Assistant Section Chief of the Communicable
Diseases Section. Kelly in turn reports to Carl Langkop, the
Section Chief for the Communicable Disease Section. Both
Kelly and Langkop work in the Springfield office. John
Pitzer, the Regional Health Officer, runs the Edwardsville
Regional Office where Byrd works, but Pitzer does not
supervise Byrd.
Pitzer’s duties include overseeing maintenance of the
building and hiring and supervising the clerical staff. In his
capacity as supervisor of clerical staff, Pitzer was responsi-
ble for hiring and assigning a secretary to Byrd. Cynthia
Steelman was an administrative assistant in the
Edwardsville office for approximately thirteen years,
working the majority of that time for Pitzer. According to
Steelman’s testimony at trial, Pitzer harbored a deep prej-
No. 04-1416 3
udice against African-American people.1 On numerous
occasions, Pitzer commented in a negative way about
African-American people in general and about Byrd in
particular. For example, Pitzer commented that “black
people are always expecting handouts.” Pitzer objected to
federal and state money going to East St. Louis, Illinois,
because of the large African-American population in that
city and suggested that the city was a “bottomless pit” that
should be bombed. Pitzer was angry when the State of
Illinois reimbursed Byrd’s tuition when he obtained a
master’s degree in public health, calling this another
example of “the mindset of East St. Louis blacks” seeking
handouts. Pitzer objected to a new bridge that he thought
would facilitate an influx of East St. Louis African-Ameri-
cans into Alton, Illinois, where he lived at the time. He
commented that his wife was uncomfortable working in her
yard because of African-Americans in the area. Pitzer
subsequently moved to a new subdivision in Edwardsville,
Illinois, only to discover that the new house next door to
him had been sold to an African-American. Steelman
described Pitzer as “livid” over this turn of events. Steelman
also testified that Pitzer performed little skits in the office
where he would speak and walk in a way that he believed
mimicked African-Americans, and that he engaged in this
behavior one day after editing a memo Byrd had written
and posted in a common area. Pitzer apparently believed
the memo misused certain verbs and contained grammati-
cal errors. Another staff member removed the “corrected”
memo before other staff arrived for the day and provided it
to Steelman, who complained to Pitzer that his edits were
1
Because the Department seeks judgment as a matter of law, we
construe the facts in favor of the party opposing judgment. See
Tart v. Illinois Power Co., 366 F.3d 461, 472 (7th Cir. 2004). We
have the benefit of the trial transcript and admitted exhibits
as well.
4 No. 04-1416
offensive and inappropriate. Pitzer replied that Steelman
was “too sensitive.” According to Steelman, Pitzer engaged
in this kind of speech and behavior on other occasions and
these incidents were merely some of the examples that
stood out in her mind from the years she worked with
Pitzer.
Needless to say, Byrd and Pitzer did not get along. Byrd
testified that, shortly after a meeting with Pitzer one day in
1995, he was returning to Pitzer’s office to ask a question he
had forgotten to ask earlier. As he approached Pitzer’s
office, he overheard Pitzer say to Byrd’s secretary, “That
black son-of-a-bitch, he doesn’t know who he’s messing
with. I’ll nail his black ass up against the wall. I’ll have him
followed and fired.” Byrd went into Pitzer’s office doorway
and said, “John, my mother is not a dog.” Byrd then
reported this incident to Doris Turner, the Department’s
EEO officer. Turner promised to call Pitzer’s boss to report
the incident. Although Turner did not follow-up with Byrd,
Pitzer delivered an insincere apology a few days later.
Byrd receives a performance review on an annual basis.
The review evaluates Byrd in eight categories of perfor-
mance and also includes an overall rating. The four possible
ratings in each category are “unacceptable,” “acceptable,”
“accomplished,” and “exceptional.” Up to and including his
1999 annual review (which covered the period from October
1, 1997 through September 30, 1998 and was completed on
March 15, 1999), Byrd had never received an “unacceptable”
rating in any category in any of his thirteen annual perfor-
mance reviews. In that 1999 review, Byrd received an
overall rating of “acceptable.” Byrd felt he deserved a higher
rating and that the Department was not recognizing all of
his accomplishments, many of which his counterparts in the
other three regions had not achieved. Salary increases were
based on the performance evaluations. When Byrd learned
that his Caucasian counterpart in Chicago had received a
higher raise than he had, he filed a charge of race discrimi-
No. 04-1416 5
nation against the Department on March 30, 1999. In fact,
as he later learned, Byrd’s salary was significantly lower
than all three of the Caucasian epidemiologists in the other
three regions for each year between 1995 and 2003, even
though Byrd was the only epidemiologist with a master’s
degree in public health.2
In the summer of 1999, several months after Byrd filed
the charge of discrimination, the Illinois Human Rights
Department (“IHRD”) held a fact-finding conference on the
charge. In attendance were Kelly, Langkop, Turner, Byrd
and his wife, as well as a representative from the IHRD.
Thus, as of the summer of 1999, Kelly and Langkop were
aware that Byrd had filed a charge of race discrimination.
According to Byrd, this is when the Department began to
retaliate against him for filing the charge.
In 1996, Byrd had founded the Bi-State Infectious Disease
Conference (“Bi-State Conference”), an annual educational
conference for public health officials in Illinois and Mis-
souri. The Bi-State Conference allowed public health
officials in these bordering states to share information with
each other about disease outbreaks. Byrd served as chair-
person of the conference for several years and also served in
other capacities. Although the Department did not sponsor
the Bi-State Conference, many Department employees
attended the Conference each year and some Department
employees spoke at the Conference. Prior to Byrd filing a
2
Langkop claimed to have noticed this discrepancy only after
Byrd filed his discrimination charge, and the Department
attempted to explain the difference by pointing to the fact that
Byrd had been with the Department since the beginning of his
career but the other epidemiologists had come from the private
sector where, presumably, salaries are higher. In any event, the
Department made some adjustments to Byrd’s salary in 2002
and 2003 after “noticing” that Byrd’s salary lagged behind that of
co-workers with similar responsibilities in other parts of the state.
6 No. 04-1416
discrimination charge in 1999, the Department placed no
restrictions on Byrd’s support of the Conference. With the
approval of Pitzer and Byrd’s supervisor, Byrd used many
resources from the Edwardsville Regional Office to support
the Conference including conference rooms, secretaries,
administrative support, and copy and postage machines. At
the fact-finding conference held by the IHRD in the summer
of 1999, Byrd complained that he had not been recognized
in his annual review for his extensive work with the Bi-
State Conference. In response, Kelly demanded that he
scale back on his participation in the Conference.
Before Byrd’s next annual review for fiscal year 2000,3
Kelly solicited input into Byrd’s review from Pitzer. Kelly
sent Pitzer a draft of the review and Pitzer suggested a
number of changes. For this review, the first one following
Byrd’s charge of discrimination, Kelly and Langkop called
Byrd to Springfield to discuss the evaluation. Byrd had
never before been called to Springfield for his annual
evaluation and had never had a formal meeting to discuss
his evaluation. At this meeting, Kelly and Langkop told
Byrd that two local health departments had complained
about his behavior that year. They also mentioned that he
had failed to inform the information officer that he had
appeared on television, giving a brief interview about a
hepatitis outbreak. They told him that he was not updating
and submitting his work schedules on a timely basis, and
they mentioned an incident involving Byrd wearing shorts
to the office and arguing with Pitzer about this. According
to Byrd, Kelly and Langkop did not convey even one
positive comment about his work performance that year.
Byrd told Kelly and Langkop that he was upset by this
review. Langkop and Kelly had a different take on the
meeting, taking formal disciplinary action against Byrd for
3
The fiscal year 2000 annual review covered Byrd’s work from
October 1, 1998 through September 30, 1999.
No. 04-1416 7
how he behaved at this performance review. A written
memo documenting the disciplinary counseling session
stated that Byrd had engaged in unacceptable behavior at
this annual review, and that he had been “loud, abrasive,
and sometimes intimidating” during his review. Byrd
denied that he had engaged in any of these behaviors
during the performance review.
In 2000, the Department placed new restrictions on
Byrd’s participation in the Bi-State Conference. He was not
allowed to serve as chairperson for the Conference, and was
instructed not to use the Department’s postage meter to
send out Conference materials, and not to receive or process
checks for the Conference in the Edwardsville Regional
Office, both of which he had been permitted to do in the
past. Byrd was also required to seek advance approval from
Pitzer for any clerical assistance for the Conference. When
Byrd’s supervisors learned that the planning committee for
the Bi-State Conference had decided to establish the “Lester
Byrd Award” to honor a person in Illinois and Missouri who
demonstrated professionalism and dedication to public
health in the area of infectious disease, they instructed
Byrd to tell the Conference organizers to either withdraw
the award or name it after someone else. They asked that
the award be named after someone who was dead or retired
and suggested it be named after Dr. White, a Caucasian
man who had served as the head of the Department’s
Division of Infectious Diseases but who had never been
involved with the Bi-State Conference. Kelly, Langkop and
Sherry Bornstein (who was Langkop’s boss) told Byrd that
the Department wanted to become a co-sponsor of the
Conference but only if certain conditions could be met,
including the renaming of the Lester Byrd Award. They
asked Byrd to convey these requirements to the co-chairs of
the Conference, who declined the Department’s invitation.
After this happened, Kelly sent a letter to Byrd telling
him that no employee would be able to work for the Bi-
8 No. 04-1416
State Conference unless the work was done as a private
citizen:
Mr. John Pitzer states the same will also be true for
members of the Edwardsville Regional Office support
staff. Also, no State supplies or equipment can be used
to support any conference activity. If you desire to
continue to function as a chairperson for the facilities
committee, you will need to use vacation or personal
time to attend the meetings. Mileage charges to attend
these meetings will not be reimbursed by the Depart-
ment.
Pl. Ex. 409. Because the Department had previously
included Byrd’s work on the Bi-State Conference as a
performance objective in his evaluation, Kelly also told Byrd
that this performance objective would be removed with no
penalty. Kelly solicited Pitzer’s input on these topics before
sending Byrd memos on the Department’s position on the
Bi-State Conference. Pitzer did not believe it was appropri-
ate to give an award to or name an award after Byrd.
Ultimately, the Bi-State Conference organizers decided to
continue to refer orally to the award as the Lester Byrd
Award but to give the awardee a plaque labeled “The Public
Health Award” because the Conference organizers feared
getting Byrd into trouble with the Department if they
publicly persisted in naming the award after him.
The Department took other disciplinary measures against
Byrd following the filing of his discrimination complaint. In
particular, in April 2000, Kelly gave Byrd an oral repri-
mand for not submitting updated work schedules, a charge
Byrd disputed. Steelman testified that some Caucasian
employees, including Pitzer, did not submit weekly work
schedules as required or would simply forget to submit their
schedules. Steelman testified that the only employee ever
disciplined for failing to submit a weekly schedule was
Byrd. Also in 2000, Byrd received his first ever rating of
No. 04-1416 9
“unacceptable” in one of the eight performance categories on
his annual review. Although he received an overall rating
of “accomplished,” this was the first time in fifteen years of
working at the Department that he had been found to be
“unacceptable” in some aspect of his work. He again
believed that his reviewers were ignoring some of his
important accomplishments that year, including coordinat-
ing with Missouri health officials on a large outbreak of
hepatitis A in the bi-state area.
The situation did not improve for Byrd in 2001. The
Department initiated disciplinary action against him three
times in eight months. The year began with a written
warning to Byrd in January for displaying “conduct unbe-
coming a public health employee.” This related to an
argument with Pitzer. The parties told vastly differing
stories about what happened, but both agreed that when
Byrd came into the office one January day, his secretary
told him that Pitzer was looking for him. Byrd went to
speak to Pitzer and a confrontation ensued. After Pitzer
complained to Kelly, Kelly and Langkop hand-delivered the
written warning to Byrd at the Edwardsville Regional
Office without ever asking Byrd for his version of events.
In July 2001, the Department issued a written warning to
Byrd for excessive tardiness. This warning was again based
on a complaint initiated by Pitzer. Pitzer reported to Kelly
that Byrd was often late arriving to the office. Kelly then
asked Pitzer to begin documenting what time Byrd arrived
at work each day. Pitzer enlisted the aid of the secretarial
support staff in tracking Byrd’s arrival time. Pitzer alleg-
edly collected information from the secretaries, added his
own observations and passed the allegations onto Kelly.
Byrd disputed many of the claims Pitzer made and noted
that he worked late or skipped lunch on days that he
arrived late. Steelman testified that many Caucasian
employees were sometimes tardy, including Pitzer, and that
none had ever been disciplined.
10 No. 04-1416
In August 2001, Byrd received his third disciplinary
action of the year when Kelly suspended him for three days
without pay over a parking dispute with Pitzer. Again, Byrd
told a very different story than Pitzer. Both agree that Byrd
had parked his truck and trailer in the grass behind the
building on the day in question. When Pitzer saw that the
truck was parked in the grass, he asked another employee
to accompany him to Byrd’s office as a “witness” when he
asked Byrd to move the truck. Both Byrd and Pitzer
reported that Byrd responded to this request with laughter,
but that he moved the truck to the parking lot. Pitzer and
another office staffer thought the truck was then blocking
parking lot traffic and asked Byrd to move the truck again.
After a verbal exchange, Byrd moved the truck a second
time. According to the “Statement of Charges” issued
against Byrd, Byrd laughed at the first request and shut his
office door in Pitzer’s face. The Statement charged that
when Pitzer made the second request to move the truck,
Byrd first delayed opening his door to respond to the
request and then shouted at Pitzer before moving the truck
a second time. The Statement concluded:
These actions clearly demonstrated failure to follow
simple verbal instructions, as well as a lack of profes-
sionalism, courtesy and consideration of others in the
work environment, in addition to interrupting opera-
tions of the office.
Pl. Ex. 20. According to Byrd, he did not shout at Pitzer.
Byrd testified that after he moved the truck a second time,
he asked Pitzer if the new space was acceptable. Pitzer
replied that it was not and Byrd moved the truck a third
time, this time to a spot specified by Pitzer as acceptable.
Byrd testified that a Caucasian employee, Bob Winning,
sometimes parked his truck and trailer in the same spot in
the grass where Byrd had parked that day without incident.
Winning, a Department employee and friend of Pitzer,
testified that he in fact parked his truck and trailer in
No. 04-1416 11
the grass a few times in 2001 and was never asked to move
it.
Byrd’s problems with the Department in 2001 culminated
in “unacceptable” ratings in two of the eight categories of
his 2001 annual review. His overall rating for 2001 was
“acceptable.” This was Byrd’s last review until he received
his 2002 review a few weeks before the trial of this case in
April 2003. Byrd received an overall rating of “acceptable”
in his 2002 review, which was held so late that six months
of the new fiscal year had passed before Byrd was told at
his review what his work objectives would be for that fiscal
year.
II.
Byrd sued the Department for race discrimination and
retaliation under Title VII. A jury trial resulted in a verdict
in favor of the defendants on the discrimination claim and
in favor of Byrd on the retaliation claim. The jury assessed
damages of $15,090 for lost wages from April 5, 1997
through April 24, 2003, plus $82,500 for emotional pain,
humiliation, and loss of enjoyment of life, for a total award
of $97,590. The Department appeals the jury verdict in
favor of Byrd on the retaliation claim. Because Byrd did not
cross-appeal the verdict on the discrimination claim in favor
of the defendants, only the retaliation claim is before us on
appeal.
The Department argues that one of the jury instruc-
tions misstated the legal effect of information supplied by
a person (in this case, Pitzer) who was not a decisionmaker
as to the terms and conditions of Byrd’s employment.
Specifically, the Department contends that the instruction
wrongly allowed the jury to hold the Department liable for
Pitzer’s discriminatory animus without proof that Pitzer
concealed relevant information from or provided false
information to those who were decisionmakers for a dis-
12 No. 04-1416
criminatory or retaliatory purpose. The Department also
objects to the court’s failure to instruct the jury that the
employer should not be held liable for a non-
decisionmaker’s conduct if the employer conducted an
independent examination of the issue or relied on other,
non-discriminatory sources of information in deciding to
discipline the employee. The Department complains that
the instruction given did not require Byrd to prove that the
Department knew or should have known about Pitzer’s
illegal bias before holding the Department liable for that
bias. The Department also maintains that the evidence was
insufficient to sustain the jury’s verdict that the Depart-
ment retaliated against Byrd for filing charges with the
EEOC. The Department thus asks this court to not only
vacate the judgment but to remand with directions to enter
judgment in favor of the Department. Byrd, of course,
maintains that the instruction accurately stated the law
and points out that the disputed instruction was a nearly
direct quote from one of our cases. To the extent the
instruction did not account for all relevant aspects of the
law, Byrd contends that the Department was not prejudiced
by the instructions as a whole. Finally, if we deem the
instruction erroneous and prejudicial, Byrd argues that the
case should be remanded for a new trial rather than for
entry of judgment in favor of the defendants.
No. 04-1416 13
A.
We turn first to the jury instruction at issue. We “consider
a trial court’s jury instructions with deference, analyzing
them as a whole to determine if they accurately stated the
law and did not confuse the jury.” Schobert v. Illinois Dep’t
of Transp., 304 F.3d 725, 729 (7th Cir. 2002). See also Boyd
v. Illinois State Police, 384 F.3d 888, 894 (7th Cir. 2004) (we
review jury instructions only to determine if taken as a
whole they correctly informed the jury of the applicable law,
reversing only if a litigant is prejudiced); Aliotta v. National
R.R. Passenger Corp., 315 F.3d 756, 759 (7th Cir. 2002) (we
review jury instructions with deference, analyzing them as
a whole to determine if they accurately state the law and do
not confuse the jury); Lenker v. Methodist Hospital, 210
F.3d 792, 796 (7th Cir. 2000) (same). We do not require that
the trial court issue an “idealized set of perfect jury instruc-
tions,” but the instructions must be correct legal statements
and must be supported by the evidence. Schobert, 304 F.3d
at 730 (quoting Knox v. State of Indiana, 93 F.3d 1327, 1333
(7th Cir. 1996)). We must first determine whether the
instructions in question misstate the law or fail to convey
the relevant legal principles in full. Aliotta, 315 F.3d at 759.
If they do, we must then determine whether the inadequate
statements confused or misled the jury causing prejudice to
the appellant. Aliotta, 315 F.3d at 759. If an instruction is
so misleading that an appellant is prejudiced, reversal is
required. Schobert, 304 F.3d at 730.
The instruction to which the Department objected reads,
in its entirety:
If the decision makers in this case regarding Lester
Byrd’s salary and/or three day suspension acted as the
conduit for another employee’s prejudice, the innocence
of the decision makers cannot relieve the Illinois
Department of Public Health from legal responsibility.
14 No. 04-1416
Plaintiff’s Proposed Instruction No. 8 (“Instruction 8”). In
support of this instruction, Byrd cited Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990). The Department objected
to this instruction on the ground that it did not adequately
state the law. In particular, the Department complained
that the phrase “conduit for another employee’s prejudice”
was not defined anywhere and was vague. The Department
countered that its own Proposed Instruction No. 22 ade-
quately and accurately stated the law regarding when a
comment made by a non-decisionmaker could be imputed to
the decisionmaker and asked that this instruction be given
instead of Byrd’s proposed instruction:
Evidence of discriminatory or retaliatory motive
harbored by someone other than the person, or persons,
with ultimate authority to take the adverse employ-
ment action at issue in this case is generally not
relevant to the question of whether the employer
discriminated or retaliated against the plaintiff. Before
the discriminatory or retaliatory acts of a non-deci-
sionmaking employee may be imputed to the employer
you must find 1) that the non-decisionmaking employee
caused the adverse employment action by supplying the
employer with false information or concealing informa-
tion from the employer; 2) the non-decisionmaker would
not have supplied the false information or concealed
information, but for the discriminatory or retaliatory
animus; and 3) the employer knew, or should have
known, of the non-decisionmaker’s discriminatory or
retaliatory motive.
If, however, the employer conducts its own investiga-
tion or acts based on other information from unbiased
sources, the causal connection is broken and the bias of
the non-decisionmaker cannot be imputed to the
employer.
Defendants’ Proposed Instruction No. 22 (“Instruction 22”).
In support of this instruction at trial, the Department cited
No. 04-1416 15
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994);
Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547
(7th Cir. 1997); Alexander v. Wisconsin Dep’t of Health &
Family Servs., 263 F.3d 673, 685 (7th Cir. 20010); and
Mateu-Anderegg v. School Dist. of Whitefish Bay, 304 F.3d
618, 626-28 (7th Cir. 2002) (Ripple, J., concurring).
As we noted, the court rejected Instruction 22 and instead
gave Instruction 8. Because we must consider the chal-
lenged instruction in the context of other relevant instruc-
tions given, we note briefly two other related instructions
(in relevant part) that the court gave:
It is Lester Byrd’s burden to prove that it is more
probably true than not true that because he filed a
charge of discrimination with the Equal Employment
Opportunity Commission, he suffered retaliation by the
Illinois Department of Public Health regardless of
whether his complaint turned out to be true.
...............
The law allows an employer substantial latitude for the
exercise of its business judgment in employment
actions. An employer has the right to make business
decisions even if its decisions are mistaken or poorly
founded as long as it does not make its decisions on a
prohibited basis. A jury must not second guess an
employer’s decision. Your task is to determine whether
the defendant discriminated and retaliated against the
plaintiff. If the defendant’s decisions were the result of
business considerations, then defendant did not violate
the law, even if you disagree with the employer’s
conclusions or decisions.
In combination with the challenged instruction, these were
the main substantive instructions given to the jury on the
issue of retaliation.
We can quickly resolve a threshold issue that arose at
oral argument. The court inquired whether Instruction 8
16 No. 04-1416
applied to both the discrimination and the retaliation
claims or whether it applied to the discrimination claim
alone. At oral argument, Byrd’s counsel conceded that the
instruction applied to both claims and that the court would
therefore need to address it. The Department took a similar
position. After oral argument, the parties filed supplemen-
tal statements on the issue, with Byrd changing his posi-
tion. Byrd argued that the jury could have concluded that
the instruction applied only to the discrimination claim, and
that because there was evidence that Kelly and Langkop
harbored their own retaliatory motive, the jury had a basis
other than imputed liability for holding the Department
liable for retaliation. The Department reiterated its earlier
position that the instruction was not facially limited to the
discrimination claim. Moreover, the Department objected
that this recharacterization came too late and that Byrd
argued to the jury that the Department could be held liable
under an imputed liability theory for both the discrimina-
tion and retaliation claims. Reading the instructions as a
whole, we are inclined to agree with the Department.
Nothing in Instruction 8 limits its application to the
discrimination claim, and Byrd argued that the Department
could be held liable for both discrimination and retaliation
based on Pitzer’s motives. Because the jury could have
applied Instruction 8 to the retaliation claim, we must
address the Department’s objection to the instruction.
Byrd relied on our opinion in Shager in support of this
instruction. Shager, 913 F.2d at 404-07. Shager sued his
employer for age discrimination after he was terminated
from a sales job. His immediate supervisor, Lehnst, who did
not have the ultimate authority to fire him, harbored age-
related biases and made comments indicating a hostility to
older workers. Lehnst gave Shager an unfavorable sales
territory where Shager then performed better than ex-
pected. Lehnst gave the prime sales territory to a younger
worker who proceeded to fail to meet sales expectations in
No. 04-1416 17
that area. Nonetheless, Lehnst made excuses for the
younger worker while being unduly harsh in his criticism of
Shager for alleged deficiencies in collecting accounts
receivable and managing his salesmen. Lehnst recom-
mended to the company’s “Career Path Committee” that
Shager be fired and the Committee obliged. The issue was
whether Lehnst’s hostility to older workers could be
imputed to the company. 913 F.2d at 400-04.
There was no evidence that any member of the Career
Path Committee harbored any hostility to older workers or
preference for younger ones. We looked to common law tort
principles to determine when an employer could be held
liable for the supervisor’s conduct. We noted that when a
supervisor was acting within the scope of his employment
in taking an action against the employee, for example by
firing an employee albeit with a wrongful motive, his
behavior was not so far beyond the orbit of his responsibili-
ties as to excuse the employer. 913 F.2d at 405. Lehnst had
not fired Shager directly but rather recommended his
termination to the Career Path Committee which in turn
terminated Shager:
If it did so for reasons untainted by any prejudice of
Lehnst’s against older workers, the causal link between
that prejudice and Shager’s discharge is severed, and
Shager cannot maintain this suit even if [the company]
is fully liable for Lehnst’s wrongdoing.
Shager, 913 F.2d at 405 (citations omitted). We noted that
if Shager’s evidence was believed, the Committee’s decision
to fire him may well have been tainted by Lehnst’s preju-
dice; indeed, Lehnst’s influence may have been decisive:
Lehnst was the district manager; he presented plausi-
ble evidence that one of his sales representatives should
be discharged; the committee was not conversant with
the possible age animus that may have motivated
Lehnst’s recommendation. If it acted as the conduit
18 No. 04-1416
of Lehnst’s prejudice—his cat’s paw—the inno-
cence of its members would not spare the com-
pany from liability. For it would then be a case where
Lehnst, acting within (even if at the same time abusing)
his authority as district manager to evaluate and make
recommendations concerning his subordinates, had
procured Shager’s discharge because of his age. Lehnst
would have violated the statute, and his violation would
be imputed to [the company]. The committee would be
out of the picture.
Shager, 913 F.2d at 405 (emphasis added).
We have highlighted the portion of the Shager case that
served as the source for Instruction 8. A simple comparison
with the challenged instruction demonstrates that, as Byrd
argued, Instruction 8 is a close paraphrase of the language
in Shager. Although “conduit” is not a defined word in
Shager or in Instruction 8, we think the meaning is plain
enough: if the employer simply rubber-stamps a recommen-
dation tainted with illegal bias, the employer is liable for
the harm caused. The instruction is thus not an incorrect
statement of the law; but it is an incomplete statement of
the principle at work in Shager. The court failed to instruct
the jury that the causal link could be broken if Kelly and
Langkop took action against Byrd for independent reasons
untainted by any illegal motive of Pitzer. Shager, 913 F.3d
at 405. See also Willis, 118 F.3d at 547 (“[W]hen the causal
relationship between the subordinate’s illicit motive and the
employer’s ultimate decision is broken, and the ultimate
decision is clearly made on an independent and a legally
permissive basis, the bias of the subordinate is not rele-
vant.”). Thus, if the Department investigated these various
incidents and honestly though perhaps incorrectly came to
the conclusion that Byrd had behaved in a manner that
warranted discipline, the Department would not be liable
for Pitzer’s hidden bias.
No. 04-1416 19
According to the Department, this omission was prejudi-
cial because there was evidence that Kelly engaged in an
independent review before deciding to discipline Byrd and
was not merely acting as a rubber stamp for Pitzer’s
prejudices. For example, when Byrd was disciplined for his
behavior at his 2000 evaluation, Kelly and Langkop were
firsthand witnesses to this event and two other employees
corroborated Kelly and Langkop’s view of this meeting.
Pitzer had no input into this incident at all. Other employ-
ees corroborated Pitzer’s complaints that Byrd was not
submitting timely weekly work schedules, that he was
arriving late at work, that he sometimes behaved abra-
sively, and that he quarreled with Pitzer over the truck
parking incident. According to the Department, independ-
ent investigation and corroboration of these events re-
lieved the Department of any liability for Pitzer’s wrong-
ful motives as a matter of law. Byrd argues that there
was no prejudice because, even with the challenged instruc-
tion, the jury found against Byrd on his discrimination
claim. Byrd also maintains there was no prejudice because
the jury could have found the Department directly liable for
retaliation without any of the evidence about Pitzer and his
input into the Department’s decisions.
We agree that the Department was prejudiced by this
omission and that the jury should have been informed that
the causal link could be broken if the ultimate decision was
clearly made on an independent and a legally permissive
basis untainted by Pitzer’s bias. See Dawson v. New York
Life Ins. Co., 135 F.3d 1158, 1165 (7th Cir. 1998) (an
incorrect instruction calls for a new trial even if the jury
could have based the verdict on a different, properly in-
structed theory). However, we believe the cases (and
possibly the evidence) do not go as far as the Department’s
instruction suggests. The Department regularly solicited
Pitzer’s advice in Byrd’s evaluations and there is ample
evidence that Pitzer was biased. Pitzer’s involvement in the
20 No. 04-1416
evaluation process raises the possibility that the Depart-
ment’s disciplinary decisions as to Byrd were based on
multiple grounds and that one or more of these grounds
were illegitimate. If so, the Department could be liable for
Pitzer’s biased input unless the Department can demon-
strate to the jury that it would have taken the same
disciplinary actions against Byrd absent any tainted input
from Pitzer. See Dey, 28 F.3d at 1459-60 (although the
employer attested he based a termination decision on an
independent assessment of plaintiff’s performance that was
apparently unaffected by any knowledge of the plaintiff’s
harassment complaints, he conceded that he solicited the
harasser’s input, that the harasser agreed the plaintiff
should be fired, and thus the harasser’s input may have
introduced a discriminatory animus into the employer’s
decision, making it reasonable to infer a causal link be-
tween the plaintiff’s complaints and her eventual dis-
charge). See also Desert Palace, Inc. v. Costa, 123 S.Ct.
2148, 2152-55 (2003) (once a plaintiff presents sufficient
evidence for a reasonable jury to conclude by a preponder-
ance of the evidence that an illegal ground was a motivating
factor for any employment practice, the plaintiff is entitled
to a jury instruction entitling the plaintiff to damages
unless the defendant proves by a preponderance of the
evidence that it would have taken the same action even if
the illegal ground had played no role in the decision).
The Department’s awkward alternative Instruction 22
tries to make this point but itself contains some errors of
law and the district court was right to reject it. For the sake
of clarity on remand (we will discuss in a moment why we
are remanding rather than directing judgment for the
Department), we will point out those errors here. First,
under the “cat’s paw” theory, in cases involving tangible
employment actions (as was the case here with the three-
day suspension and the lower salary, for example), the
plaintiff is not required to prove that the employer knew or
No. 04-1416 21
should have known of the non-decisionmaker’s discrimina-
tory or retaliatory bias before that bias can be imputed to
the employer. Rather, as we held in Shager, the employer
may not be “conversant with the possible [discriminatory or
retaliatory] animus that may have motivated [the non-
decisionmaker’s] recommendation” but may nonetheless be
liable for that animus if it acts as a conduit for the non-
decisionmaker’s bias. 913 F.2d at 405. Indeed, in describing
the conduit or cat’s paw theory in another case, we said that
when a company sets up several layers of pro forma review
but the operative decision is that of a subordinate with an
illicit motive, we impute to the company the discriminatory
motive of the subordinate rather than the motive of the
ignorant decisionmaker. See Willis, 118 F.3d at 547. We
would hardly be referring to the decisionmaker as “igno-
rant” if we required the plaintiff to show that the
decisionmaker knew or should have known about the
subordinate’s bias. In fact, if the decisionmaker knew of the
bias, we would have no need for a cat’s paw theory at all
because liability would be direct.
We take a moment to distinguish a few of the cases relied
upon by the Department in support of its argument that the
plaintiff must prove the employer knew or should have
known of the non-decisionmaker’s bias before being held
liable for that bias. When submitting Instruction 22, the
Department cited Alexander, 263 F.3d at 685. On appeal,
the Departmentadditionally cites Knox v. State of Indiana,
93 F.3d 1327, 1332, 1334-35 (7th Cir. 1996) and Faragher
v. City of Boca Raton, 524 U.S. 775 (1998). In Alexander,
the employer investigated a complaint made by an allegedly
biased employee (Carlson) against the plaintiff (Alexander).
After hearing accounts of the incident from both Alexander
and Carlson, the employer decided to suspend Alexander for
ten days without pay. We remarked that the employer’s
reliance on Carlson’s version of events would not have been
acceptable if Carlson harbored racial animus toward
22 No. 04-1416
Alexander and the employer knew or should have known of
Carlson’s bias. Alexander, 263 F.3d at 685. The only point
this proves is that if an employer knowingly acts on infor-
mation from a biased employee, the investigation is not
really independent and will not relieve the employer of
liability. Alexander is not a typical “cat’s paw” or conduit
case; the evidence demonstrated that the employer did not
rubber-stamp a recommendation made by a biased em-
ployee but engaged in an independent investigation that
revealed no illicit bias by Carlson.
Knox stands for the unremarkable proposition that an
employer can be held liable under Title VII for sexual
harassment by an employee’s co-workers if the employer
had actual or constructive knowledge of the harassment and
failed to address the problem. Knox, 93 F.3d at 1334. In
Knox, the plaintiff was subject to sexual harassment from
a co-worker who was retaliating against her for complaining
about his earlier sexual harassment of her. We affirmed a
jury instruction that held the employer liable for the co-
worker’s harassment that occurred with the knowledge and
acquiescence of the employer. The court instructed the jury
that an employer acquiesces in retaliatory harassment
“when the employer knows of the harassment and fails to
act promptly to take actions reasonably likely to remedy the
harassment and prevent future episodes.” Knox, 93 F.3d at
1332-33. Again, this was not a cat’s paw or conduit case.
The employer was not accused of taking a tangible employ-
ment action against an employee based on the unexamined
recommendation of a subordinate who harbored an illegal
bias. Rather, the employer was charged with looking the
other way when a co-worker engaged in objectionable
conduct that created a hostile environment for the plaintiff.
In this sense, Knox foreshadowed the Supreme Court’s
holding in Faragher, also cited by the Department. In
Faragher, the Court held that an employer is subject to
vicarious liability to a victimized employee for an actionable
No. 04-1416 23
hostile work environment created by a supervisor with
immediate (or successively higher) authority over the
employee. Faragher, 524 U.S. at 807. Under Faragher,
when no tangible employment action is taken, an employer
may raise an affirmative defense, the elements of which are
irrelevant here. But no affirmative defense is available
when the supervisor’s harassment culminates in a tangible
employment action such as discharge, demotion or undesir-
able reassignment. 524 U.S. at 807-08. The holding in
Faragher does not affect the result here. Byrd alleged that
Pitzer’s actions culminated in tangible employment actions.
He alleged that as a result of the unexamined reports of a
biased co-worker, he was suspended without pay and that
the Department lowered his annual review scores and
hence his salary. The Department of course disputes this
claim, and counters that it did investigate Pitzer’s charges
and sought corroboration from other sources. That may be
true, but it is for the jury to determine who is telling the
truth. Byrd is at least entitled to have the jury instructed
on the cat’s paw or conduit theory of liability.
The Department’s Instruction 22 also requires that the
non-decisionmaking employee cause the adverse employ-
ment action by supplying the employer with false informa-
tion or concealing information from the employer. The
Department insists that if a non-decisionmaker with an
illicit bias provides truthful information to the employer
that leads to the adverse employment action, the employer
cannot be held liable for the illegal bias. The Department is
correct that supplying false information or concealing
information are ways that a biased non-decisionmaker can
influence the employer’s actions. See Alexander, 263 F.3d at
684; Willis, 118 F.3d at 547. See also Eiland v. Trinity
Hosp., 150 F.3d 747, 752 n.1 (7th Cir. 1998) (summary
judgment proper where the plaintiff has no evidence that
non-decisionmaker had a discriminatory animus or that he
tainted the decisionmaker’s assessment of the plaintiff
24 No. 04-1416
and affected the decisionmaker’s termination decision);
Gusman v. Unisys Corp., 986 F.3d 1146, 1147 (7th Cir.
1993) (citing Shager, 913 F.2d at 405) (“[a]n employer
cannot escape responsibility for wilful discrimination by
multiple layers of paper review, when the facts on which
the reviewers rely have been filtered by a manager deter-
mined to purge the labor force of older workers.”). But we
pause here to clarify an issue that may arise on remand.
The Department might argue, for example, that Pitzer
truthfully reported that Byrd was late coming into the office
on occasion, and that the Department cannot be held liable
for disciplining an employee for conduct that otherwise
warrants discipline. This is generally true, but the instruc-
tions must take into account that Pitzer may have selec-
tively reported Byrd’s lateness, leaving out the fact that he
himself or other Caucasian employees were similarly late.
Although this omission did not involve affirmative acts of
concealment such as destroying records or instructing
employees to withhold information, it nonetheless had the
same effect as concealment. Pitzer’s truthful report (if
indeed it was truthful) could result in disparate, race-based
treatment when Byrd was disciplined and the Caucasian
employees were not disciplined for the same offense. Under
the Department’s Instruction 22, Pitzer’s racially motivated
“truthful” report on Byrd which omitted similar conduct by
others would not be actionable, and so this instruction is
misleading as written. Although the instruction originates
in the language of some of our cases (see, e.g., Wallace v.
SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997)),
we remind the parties that jury instructions “should not be
patched together from snippets of appellate opinions taken
out of context, but should rely first on the language of the
statute.” Boyd v. Illinois State Police, 384 F.3d 888, 894-95
(7th Cir. 2004). As we explained in Lust v. Sealy, Inc., 383
F.3d 580, 584-85 (7th Cir. 2004), the cat’s paw theory of
liability is not nearly as narrow (or literal) as the Depart-
ment portrays it to be. To paraphrase our holding there, if
No. 04-1416 25
the Department would not have disciplined Byrd but for
Pitzer’s recommendations, recommendations that a jury
could reasonably find were motivated by an illegal motive,
then Pitzer’s bias was a cause of Byrd’s injury whether or
not Kelly could reasonably be thought a mere cat’s paw.
Lust, 383 F.3d at 584. In short, nearly every sentence of the
Department’s Instruction 22 contains a subtle (or not so
subtle) misstatement of the law, and the court was correct
to reject it. On retrial, the court should give Instruction 8 in
combination with an instruction that removes liability for
Pitzer’s bias if the Department can prove that it would have
taken the same disciplinary actions against Byrd absent
any tainted input from Pitzer.4
B.
We have focused up to this point on the Department’s
liability for possibly rubber-stamping the illegally moti-
vated recommendations of one of its employees. The De-
partment could also be held liable for retaliation if Byrd
could prove that the Department itself harbored an illicit,
retaliatory motive when it took certain actions against him.
The Department has urged us to find that there is no need
for a new trialbecause Byrd had insufficient evidence to
demonstrate that Pitzer had a retaliatory motive that could
be imputed to the Department, or that the Department
(through the decisionmakers, Kelly and Langkop) had its
own retaliatory motive. We review de novo the district
court’s decision to deny the Department’s Rule 50 motion
for judgment as a matter of law, and determine only
whether any rational jury could have found for Byrd.
Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 707
4
We are certainly not saying that Instruction 8 is a model of
clarity but are merely holding that the Department’s objections
can be addressed with an appropriate supplemental instruction as
we have described.
26 No. 04-1416
(7th Cir. 2004); Hall v. Gary Cmty. School Corp., 298 F.3d
672, 675 (7th Cir. 2002). We must review all of the evidence
in the record, drawing all reasonable inferences in favor of
the nonmoving party. Tart v. Illinois Power Co., 366 F.3d
461, 472 (7th Cir. 2004). 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. Harvey, 377 F.3d at 707; Tart, 366
F.3d at 472. Our review differs from that used for summary
judgment only insofar as we now know exactly what
evidence the jury considered in reaching the verdict.
Harvey, 377 F.3d at 707. “Our job at this stage is not to
determine whether the jury believed the right people, but
only to assure that it was presented with a legally sufficient
basis to support the verdict.” Harvey, 377 F.3d at 707.
According to the Department, the evidence could not
support a finding that Byrd received lower salary increases
or a three-day suspension due to a retaliatory animus
against him. Title VII makes it unlawful “for an employer
to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment
practice by” Title VII. 42 U.S.C. § 2000e-3(a). After the
pretrial stage, a plaintiff need only demonstrate that he
was discriminated against for opposing an “unlawful
employment practice” to sustain a retaliation claim.
Schobert, 304 F.3d at 732. See also Harvey, 377 F.3d at 708(after a full trial, the only pertinent question was whether
there was enough evidence to permit the jury to consider
the ultimate questions of discrimination and retaliation).
The Department concedes that Byrd’s EEOC charge was
protected expression. The Department also agrees that
decisions concerning Byrd’s salary and the three-day
suspension would be unlawful discrimination if motivated
by a retaliatory purpose. The Department claims only that
Byrd had insufficient evidence to demonstrate that these
decisions were motivated by a retaliatory purpose. In
No. 04-1416 27
particular, the Department argues that Byrd had no
evidence that the Department itself harbored a retaliatory
motive or that Pitzer had a retaliatory motive that could be
imputed to the Department. The district court denied the
Rule 50 motion because the evidence at trial demonstrated
that Pitzer possessed a racial animus toward Byrd, that
Pitzer regularly advised Kelly about various aspects of
Byrd’s work performance, and that Kelly often solicited this
kind of input from Pitzer. The district court ruled that a
reasonable jury could find from this evidence that Kelly
acted as a conduit for Pitzer’s racial animus toward Byrd
and thus the evidence was sufficient to sustain the verdict.
We turn to Byrd’s evidence that the Department gave him
unfairly smaller salary increases and suspended him for
three days in retaliation for his EEOC complaint. Byrd
notes that prior to his April 1999 EEOC charge, his
thirteen-year history with the Department was uneventful.
He had never received an “unsatisfactory” rating on an
annual review. He had received two written reprimands in
1993 for using the Department’s computer and photocopier
for personal use. An oral reprimand in 1998 was removed
from his personnel record after he won a grievance hearing.
In 1996, he had founded the Bi-State Conference and had
been allowed to work in several capacities on the Confer-
ence, including as chairperson. Before 1999, the Depart-
ment placed no limitations on the amount of time he could
spend on the Conference and allowed him to use office
resources including secretarial support, postage and
photocopying on the Conference preparations. After receiv-
ing his 1999 annual review, he filed his charge of discrimi-
nation, alleging that he was given lower ratings than he
deserved on account of his race. Under the Department’s
system, pay raises are directly tied to annual review
ratings; lower reviews mean lower salary increases and so
we will use reviews and salary interchangeably as we
discuss Byrd’s evidence. In the summer of 1999, a few
28 No. 04-1416
months after he filed the charge, the IDHR held a fact-
finding conference at which Kelly and Langkop were
present. As an example of an accomplishment that had gone
unrecognized at his annual review, Byrd mentioned his
contributions to the Bi-State Conference. Kelly responded
that Byrd should cut back on his participation in the Bi-
State Conference. This was the beginning of a series of
demands the Department made to Byrd about the Bi-State
Conference. Over the next year, the Department asked for
greater input into the Conference and even asked the
Conference not to name the new award after Byrd. When
the Conference planners refused to cede to the Depart-
ment’s requests, the Department told Byrd he could no
longer work on the Conference during work hours and that
he could no longer use office resources to support the
Conference.
In the meantime, as we described above, Kelly began to
solicit input from Pitzer into Byrd’s annual reviews. Pitzer
sent Kelly approximately eighty e-mails about Byrd from
June 1999 through 2001. Some of these related to annual
reviews and some were complaints about Byrd that led to
disciplinary actions. All in all, after Byrd filed his EEOC
charge, the Department disciplined him five times, gave
him unsatisfactory ratings in his annual review and
suspended him over the parking lot incident with Pitzer.
The Department’s escalating actions against Byrd began at
the fact-finding hearing for the EEOC charge, at about the
same time that Byrd began having more and more difficulty
with Pitzer. Pitzer took it upon himself to report Byrd’s
allegedly late arrivals at the office and directed other
employees to watch him as well and report on him. Kelly
too subjected Byrd to greater scrutiny than she had in the
past, criticizing Byrd’s work schedules as inaccurate and
not timely submitted, for example. Byrd presented evidence
that he was subjected to scrutiny and discipline for tardi-
ness, inadequate work schedules and parking behind the
No. 04-1416 29
building when Caucasian employees who engaged in these
same behaviors were not disciplined. Although the Depart-
ment argues that Byrd had no evidence that Pitzer knew
Byrd had filed an EEOC charge, the timing of these events
and the dozens of communications between Pitzer and Kelly
about Byrd’s performance during this time allow the jury to
draw an inference that Pitzer knew about the charge and
was motivated by it. A reasonable jury could also conclude
that, even without Pitzer’s input, the Department retaliated
against Byrd for filing the EEOC charge. We therefore
decline the Department’s invitation to direct judgment in its
favor. We emphasize that our opinion is not meant as a
comment on the merits; at this stage of the proceedings, we
are obliged to construe the facts and all reasonable infer-
ences drawn from them in a light most favorable to Byrd. It
is for a jury to decide whom to believe and whether to draw
those inferences. We are holding only that there is enough
here to put the case back before a properly instructed jury.
Each party shall bear its own costs of this appeal.
VACATED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-05