Ron Morris v. BNSF Railway Company ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2808 & 19-2913
RON MORRIS,
Plaintiff-Appellee/Cross-Appellant,
v.
BNSF RAILWAY COMPANY,
Defendant-Appellant/Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-2923 — Matthew F. Kennelly, Judge.
____________________
ARGUED JUNE 5, 2020 — DECIDED AUGUST 11, 2020
____________________
Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit
Judges.
SCUDDER, Circuit Judge. Ron Morris worked for nine years
as a train conductor for Burlington Northern Santa Fe Rail-
way. The company fired him after he committed two speed-
ing infractions during a single shift. Morris, who is African-
American, invoked Title VII and brought suit to challenge his
termination, alleging that BNSF punished him more severely
than non-black employees who committed similar safety
2 Nos. 19-2808 & 19-2913
violations. His case proceeded to trial and a jury found in his
favor. BNSF challenges the district court’s decisions at every
stage of the case, from the viability of Morris’s theory of dis-
crimination and sufficiency of his evidence to discovery rul-
ings and remedies. We see no errors and affirm, on most is-
sues applying a deferential standard of review and respecting
the district court’s close proximity to questions bearing upon
management of the litigation and the admissibility and ade-
quacy of evidence.
I
A. Morris’s Employment and Termination from BNSF
Ron Morris started working at BNSF as a conductor in
2004. In 2011 he began operating trains traveling between Sa-
vanna and Aurora, Illinois. During a shift one day in March
2013, a data recorder showed that Morris’s train—a so-called
“key train” carrying hazardous chemicals—had twice ex-
ceeded speed limits by 10 and 12 miles per hour. Morris failed
to follow company rules requiring self-reporting of the viola-
tions. An investigation ensued and was sure to result in Mor-
ris being disciplined.
Morris’s discipline would come after one of two processes
ran their course. It is easiest to think of them as either informal
or formal. In the formal process, BNSF labor relations and
management gather information about the employee’s safety
infractions and conduct a hearing. The hearing officer recom-
mends what discipline, if any, to impose after considering the
facts and a written policy categorizing violations by their level
of seriousness. If the hearing officer and the employee’s su-
pervisor recommend termination, the company’s Review
Board assesses the evidence and makes the final decision.
Nos. 19-2808 & 19-2913 3
BNSF allows employees like Morris to seek permission to
travel one of two informal disciplinary paths. First, an em-
ployee who is offered “waiver” can admit the alleged miscon-
duct, forgo a formal investigation, and agree to accept the rec-
ommended sanction—all with the hope of receiving a lesser
degree of discipline than would have emerged at the end of a
more formal and resource-intensive process.
The company’s policies also include an informal pathway
called “alternative handling.” As its name implies, this ave-
nue affords an alternative to BNSF’s formal investigative pro-
cesses and allows the matter to be handled at lower levels. By
way of a rough analogy, think of alternative handling as a way
for line supervisors to handle the matter themselves—per-
haps with some strong words of warning and a promise of no
such leniency in the future—without sending the offending
employee to the plant manager or corporate office for a deter-
mination of the sanction. Any discipline, warnings, or correc-
tive actions that result from alternative handling do not ap-
pear on the employee’s permanent record. It is easy to see
why an employee would prefer the informal process to the
formal investigation: it is the same reason why a student
caught violating a school rule will often prefer that his teacher
handle the matter in the classroom instead of sending him to
the principal’s office.
Morris came to the same view and sought to have his two
speeding infractions addressed through alternative handling
or waiver. He thought he had a good chance of resolving the
matter that way because other employees had done just that—
and managed to keep their jobs—after committing similar
safety violations. The parties tangle over whether Morris
properly submitted his waiver request. What matters for these
4 Nos. 19-2808 & 19-2913
purposes, though, is that ultimately Scott Hendrickson, the
Superintendent of Operations for BNSF’s Chicago division,
rejected Morris’s request for alternative handling and made
no mention of waiver.
Hendrickson’s reasons for denying alternative handling
shifted over time and began with the explanation that Morris
was ineligible because he violated “Critical Work Practices,”
a term Morris had never heard of or seen in any workplace
policy manual. During litigation the company offered a new
reason, suggesting that it disallowed Morris’s access to the in-
formal pathways because he was operating a key train with
hazardous chemicals. Morris found the inconsistencies con-
cerning and thought they might mask the real reason why
Hendrickson insisted on pressing the matter to a formal in-
vestigation and discipline.
Eventually Morris found himself in a formal disciplinary
hearing along with the engineer who worked the same shift
during which the two speeding violations occurred. The hear-
ing officer recommended terminating the engineer and sus-
pending Morris for 30 days. Hendrickson forwarded the rec-
ommendation to the Review Board. Andrea Smith, BNSF’s
Director of Labor Relations and a member of the Review
Board, responded by supporting the dismissal of both em-
ployees. In April 2013 Morris received a letter terminating his
employment. He challenged the termination within the com-
pany and then through union arbitration. When those efforts
proved unsuccessful, Morris decided to head to court.
B. The Lawsuit
In April 2015 Morris filed suit challenging his termination
under Title VII of the Civil Rights Act of 1964 and Section 1981
Nos. 19-2808 & 19-2913 5
of the Civil Rights Act of 1866. Title VII prohibits employers
from “discriminat[ing] against any individual . . . because of
such individual's race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). Section 1981 guarantees equal rights
to all citizens regardless of race and in the context of employ-
ment provides that all people have the “same right . . . to make
and enforce contracts . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a). We can consider Morris’s claims under Title
VII and Section 1981 together, though, because both statutes
“have the same liability standards.” Walker v. Abbott Lab’ys.,
340 F.3d 471, 474 (7th Cir. 2003). So, while we refer only to
Title VII throughout the opinion for simplicity, our reasoning
applies to Morris’s claim under both enactments.
Morris alleged two theories of discrimination—racial har-
assment (based on comments made by Hendrickson and
other BNSF managers) and disparate discipline (based on dif-
ferences in how black and non-black employees were treated
after committing similar rule violations). The racial harass-
ment allegation eventually fell out of the case, whereas Morris
succeeded in getting his disparate discipline claim to trial and
the jury finding in his favor. A few more words about Title
VII disparate discipline liability are therefore in order and
provide essential context.
Disparate discipline is a theory of liability rooted, as its
name conveys, in proving different treatment for discrimina-
tory reasons—here, as Morris alleged, through the imposition
of more severe discipline when compared with the discipline
non-black employees received for committing similar viola-
tions of BNSF’s safety standards. See Luster v. Ill. Dep't of
Corr., 652 F.3d 726, 730 (7th Cir. 2011) (explaining that Title
6 Nos. 19-2808 & 19-2913
VII protects workers who violate workplace rules but receive
harsher discipline because of their protected status).
At a more specific level, Morris’s allegation focused on
how his discipline came about. The allegation drew upon the
difference between the formal versus informal discipline
pathways. Morris believed that his termination was the prod-
uct of Scott Hendrickson denying his request for alternative
handling and waiver and instead sending his case down the
company’s more formal pathway with more serious sanc-
tions. Morris came to ground his contention in facts he
learned about other employees in discovery. BNSF had pro-
duced documents showing, at least as Morris saw it, that ap-
proximately two dozen non-black employees committed
equally serious safety violations yet were able to resolve the
matters through the informal process and, most importantly,
without getting fired.
After three years of discovery, BNSF moved for summary
judgment. The company succeeded in showing that Morris
failed to timely file an EEOC charge on his allegation of racial
harassment, so the district court dismissed that allegation in
BNSF’s favor. No aspect of this appeal relates to that theory
of discrimination.
BNSF sought summary judgment on Morris’s disparate
discipline claim on two grounds. The company argued that
Morris’s evidence addressing the discipline imposed on other
employees—whom employment law refers to as “compara-
tors”—was too vague to allow a jury to find any disparate
treatment, let alone that the reason for the differential disci-
pline was race. As the company saw the evidence, the employ-
ees Morris featured in opposing summary judgment were not
like him at all, as they committed less severe safety violations.
Nos. 19-2808 & 19-2913 7
BNSF emphasized that Morris committed two speeding vio-
lations during a single shift while operating a key train carry-
ing hazardous materials.
The district court decided that the disparate discipline
claim should go to a jury. In denying BNSF’s motion, the court
determined that the comparator evidence allowed a reasona-
ble jury to find that the company’s explanation for Morris’s
termination was a cover-up for race discrimination.
C. The Trial Evidence
Over the course of a four-day trial, the jury heard from
Morris, Scott Hendrickson, a white conductor named Thomas
Lynch, and Chicago Foreman Robert Della-Pietra. Time and
again, BNSF emphasized its commitment to safety and Mor-
ris’s speeding infractions while operating a key train. The
gravity of these two violations during a single shift, the com-
pany urged, differentiated Morris’s misconduct from those of
the so-called comparator employees and warranted the more
severe disciplinary measure of termination.
Morris pressed a different view of the evidence. He high-
lighted BNSF’s ever-changing explanations for denying his
request for alternative handling, suggesting that the shifting
reasons reflected efforts to disguise racial discrimination.
More specifically, Morris noted that, while BNSF’s letter re-
jecting his alternative handling request cited “Critical Work
Practices,” neither Hendrickson nor Della-Pietra could iden-
tify any company policy or training document explaining the
phrase.
Morris also exposed as suspect BNSF’s purported reason
for why he did not receive a waiver. The company insisted
that he failed to go through the proper channels to request a
8 Nos. 19-2808 & 19-2913
waiver of the more formal investigation and disciplinary pro-
cess. But Thomas Lynch, one of Morris’s white coworkers, tes-
tified that he managed to keep his job and avoid termination
after derailing a train carrying hazardous materials. He also
said that he was offered waiver without requesting it. These
are two examples of at least four discrepancies that Morris
highlighted at trial.
When it came to comparator evidence, Morris featured
other employees from within the same geographic region
who worked under Scott Hendrickson’s (ultimate) supervi-
sion. All of this evidence came from information BNSF pro-
duced in discovery. And at trial Morris elicited much of his
comparator evidence through Hendrickson, who testified as
a defense witness. He questioned Hendrickson about the
safety infractions committed by particular employees, the
race of those workers, and what, if any, sanction they received
by traveling the informal discipline path. By the conclusion of
Hendrickson’s testimony, Morris’s counsel had asked about
24 other employees that seemed to have committed similar in-
fractions yet were channeled into the informal discipline pro-
cess and—unlike Morris—received lesser discipline.
A quick snapshot of some of Morris’s comparator evi-
dence illustrates the point in more concrete terms:
• Kellan Smith disabled safety equipment so
that his train could run above the speed limit
and committed other safety infractions. He
received waiver and kept his job. Upon com-
mitting another infraction while on proba-
tion for his first offense, he received a second
waiver and again kept his job. When asked
about Smith’s discipline, Hendrickson said
Nos. 19-2808 & 19-2913 9
he did not remember the incidents and could
not explain why Smith received two waiv-
ers.
• Michael Wyatt received alternative handling
after going 14 miles per hour above the
speed limit. About a year later he violated
three safety rules but received a waiver and
kept his job. When asked why Wyatt was not
fired, Hendrickson resorted to saying that
every incident is unique and handled in its
own way.
• Justin Ross received waiver and kept his job
after he admitted to speeding and two other
violations. Hendrickson said that Ross’s vio-
lations could have supported dismissal but
speculated that Ross received waiver and a
30-day suspension because the discipline
“depended on the circumstances and the sit-
uations.”
These employees—and the 21 others that Morris featured at
trial through Hendrickson’s testimony—were BNSF engi-
neers or conductors, employees jointly responsible for the
train’s safety and bound by the same rules and disciplinary
processes.
Apart from the failure to explain the different treatment
between Morris and the non-black comparator employees,
Hendrickson admitted making contradictory statements be-
fore and during the litigation. In response to Morris’s ques-
tioning about the affidavit he signed, which the jury saw at
trial, Hendrickson acknowledged that it contained inaccurate
10 Nos. 19-2808 & 19-2913
information about Morris’s discipline process. Hendrickson
also conceded that the company’s interrogatory response rep-
resenting that he recommended Morris’s dismissal was false,
as other documents made clear that the decision came from
the Review Board. Hendrickson could not explain the dis-
crepancies.
At the close of evidence, BNSF invoked Federal Rule of
Civil Procedure 50(a) and challenged the legal sufficiency of
Morris’s evidence. In the company’s view, Morris failed to
prove causation, as nothing about the comparator evidence
connected Hendrickson’s denial of alternative handling and
waiver with the altogether independent decision the Review
Board made to terminate Morris. BNSF also renewed its argu-
ment that Morris was not similarly situated to his compara-
tors. The district judge denied the company’s motion and sub-
mitted the case to the jury.
D. The Jury Verdict
The jury returned a verdict for Morris, awarding $375,000
in compensatory damages and $500,000 in punitive damages.
The district court then conducted a bench trial on the poten-
tial remedies of back pay, front pay, and reinstatement. It
awarded $531,292 in back pay after rejecting BNSF’s argu-
ment that Morris failed to mitigate his damages. The court
then awarded $137,450 in front pay to compensate Morris for
lost future income, in lieu of granting his request for reinstate-
ment. The district court reasoned that the gravity of the safety
infractions Morris committed would harm his ability to return
to work without significant distrust and friction with his su-
pervisors.
Nos. 19-2808 & 19-2913 11
With the exception of granting the company’s request to
reduce compensatory and punitive damages—the former to
$275,000 and the latter to $370,000—the district court denied
BNSF’s other post-trial motions. We take the issues in turn as
they pertain to the company’s expansive appeal and Morris’s
challenge to the denial of reinstatement.
II
We start with BNSF’s challenge to the district court’s de-
nial of its renewed motion for judgment as a matter of law.
The company argues that the trial evidence was legally insuf-
ficient to support the jury’s finding of Title VII and Section
1981 liability. In assessing BNSF’s arguments on appeal, we
take our own fresh look at the trial evidence—though we do
so “strictly in favor” of Morris as “the party that prevailed at
trial.” Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372,
376 (7th Cir. 2011). It is not our place to reweigh evidence,
make alternative findings of fact, or second-guess credibility
determinations. See id. As a court of review, we limit our-
selves to asking whether the evidence sufficed as a legal mat-
ter to support the jury’s verdict.
A. Comparator Evidence
BNSF contends that Morris fell short of compiling an ade-
quate slate of non-African American comparators. Beyond la-
beling Morris’s comparator evidence “cryptic” and a “mish-
mash,” the company views the other employees as lacking ad-
equate similarity because not everyone operated a key train
carrying hazardous materials nor committed a safety viola-
tion nearly as serious as Morris’s two speeding infractions
during a single shift. By lacking similarity along these two di-
mensions, the company continues, Morris’s evidence was
12 Nos. 19-2808 & 19-2913
incapable of supporting the jury’s finding Title VII (or Section
1981) liability on a theory of disparate discipline.
We see no legal shortcomings in Morris’s comparator evi-
dence. He compiled his list of comparators by filtering and
analyzing the information BNSF produced in discovery.
Though BNSF now seems to criticize the quality of its own
records, Morris presented the results of his synthesis with ad-
equate clarity to allow the jury to see the other employees’
race or ethnicity, work histories, safety infractions, and disci-
pline, including whether the other employees benefited from
informal alternative handling. The law required no more, and
we have seen much less in other cases. See, e.g., Skiba v. Ill.
Cent. R.R. Co., 884 F.3d 708, 723 (7th Cir. 2018) (reasoning that
the plaintiff’s comparator evidence in an age-discrimination
suit was inadequate when it consisted “solely of a table listing
the names and ages of the thirty-seven younger employees
and the positions for which they were hired” with “no ampli-
fying detail of the employees’ qualifications or employment
history”); McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d
360, 369 (7th Cir. 2019) (noting that the plaintiff failed to pro-
vide the proposed comparator employees’ “names, work his-
tory, performance review, or—most importantly [given the
type of claim]—their ages”).
Nor was the jury required to view the comparator evi-
dence as compelling the conclusion that Morris lost his job be-
cause he committed such serious safety violations. BNSF’s
safety rules did not distinguish between infractions involving
key trains and other locomotives. While key trains were sub-
ject to different speed limits and other requirements under the
safety policies, the discipline rules drew no distinction between
trains carrying different cargo. This lack of differentiation
Nos. 19-2808 & 19-2913 13
allowed Morris to fairly compare himself with non-African
American train operators who committed speeding or other
similar violations on trains with or without hazardous mate-
rials onboard. Morris stood on sound ground approaching his
burden of proof this way. See Coleman v. Donahoe, 667 F.3d
835, 851 (7th Cir. 2012) (concluding that the plaintiff’s pro-
posed comparators—who received more favorable treatment
despite “br[eaking] the same rule that [the plaintiff] allegedly
did”—were similar enough to permit a reasonable inference
of discrimination).
BNSF’s contrary views fall short. Yes, it is possible some
other plaintiff may have approached the evidence another
way, including by analyzing the employment data in empiri-
cal terms (through, for example, a regression analysis) to dis-
cern the role, if any, that race played in discipline decisions.
See, e.g., Vega v. Chicago Park District, 954 F.3d 996, 1005
(7th Cir. 2020) (recapping the plaintiff’s presentation of statis-
tical data comparing the percentage of Hispanic and non-His-
panic managers fired during a certain period). It is equally fair
to observe that Morris may not have neatly packaged and pre-
sented his comparator evidence, as he elicited it (indirectly)
through his cross-examination of Scott Hendrickson.
Remember that litigation is not one-sided, though. BNSF
had every opportunity to run a regression or apply other sta-
tistical tools to the employment information produced in dis-
covery. Or perhaps the company could have presented an al-
ternative slate of comparators (one, for example, extending
beyond employees working under Hendrickson’s supervi-
sion or within a certain geographic region) as a way of chal-
lenging the evidence Morris marshaled to support his allega-
tion of disparate discipline. But those choices belonged to the
14 Nos. 19-2808 & 19-2913
company, and our role is to take the case as the parties liti-
gated it, see United States v. Sineneng-Smith, 140 S. Ct. 1575
(2020), recognizing that here BNSF let Morris set the table.
Now is not the time to ask a series of what ifs.
Given the way that the case was litigated in the district
court, we find no legal infirmity in Morris’s approach. View-
ing the trial evidence in the light most favorable to Morris, as
we must on appeal, we have no doubt he satisfied the only
obligation that matters. He introduced comprehensible and
detailed evidence about how other employees were treated
after committing safety violations.
B. Causation
We likewise reject BNSF’s interrelated contention that the
trial evidence precluded a finding that the company termi-
nated Morris because of his race. On this score, the company
highlights what it sees as a disconnect between Morris’s ac-
count of discrimination and the company’s decision to fire
him. On Morris’s account, the company urges, Scott Hen-
drickson was the one responsible for any race-based discrim-
ination, but he did not make the termination decision. That
decision, BNSF says, came at the Review Board level when
Andrea Smith chose to fire Morris for reasons having every-
thing to do with safety violations and nothing to do with his
race. To BNSF’s mind, then, Morris failed to prove he lost his
job because of his race. See 42 U.S.C. § 2000e-2 (prohibiting
discrimination “because of” race or another protected status);
see also Vega, 954 F.3d at 1006 (discussing requirement that
there be a “causal link” between the discrimination and the
termination or other adverse employment decision).
Nos. 19-2808 & 19-2913 15
BNSF presses the same argument by recasting it in terms
of our case law. It characterizes Morris’s Title VII claim as one
invoking the so-called “cat’s paw” theory of liability and
points out how Morris’s claims depart from the ordinary ap-
plication of that theory. The cat’s paw theory owes its name
to one of Aesop’s fables in which a monkey “induces a cat by
flattery to extract roasting chestnuts from the fire. After the cat
has done so, burning its paws in the process, the monkey
makes off with the chestnuts and leaves the cat with nothing.”
Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011). The classic
cat’s paw case occurs when an “unwitting manager or super-
visor . . . is persuaded to act based on another’s illegal bias.”
Schandelmeier-Bartels, 634 F.3d at 379 (emphasis added).
BNSF emphasizes that Morris’s case diverges from this
paradigm because Morris presented no evidence of trickery
of any kind—indeed, no proof that Hendrickson even had a
role in the termination decision. By the company’s measure,
the district court committed legal error in upholding the jury’s
verdict and imposing Title VII liability without evidence con-
necting any discrimination with the adverse employment
consequence.
Whether we approach BNSF’s argument through the lens
of the trial evidence or by way of comparison with our cat’s
paw precedents, we reject it. Congress made the controlling
inquiry under Title VII whether Morris lost his job because of
his race. “[T]he sole question that matters is whether a reason-
able juror could conclude that the plaintiff would have kept
her job if she he had a different [protected status], and every-
thing else had remained the same.” Vega, 954 F.3d at 1004 (cit-
ing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir.
2016)) (internal quotations omitted). Morris sought to show
16 Nos. 19-2808 & 19-2913
just that by drawing upon the comparator evidence to prove
that, but for his race, Hendrickson would have determined
the appropriate discipline for Morris through an informal
process. But instead Hendrickson channeled him into a for-
mal investigation, which was sure to lead to a serious sanc-
tion. We see no reason why Morris was not able to approach
proving a Title VII violation this way.
Nor can we say the evidence was insufficient as a legal
matter. The jury could have viewed Morris’s comparator evi-
dence as establishing that Hendrickson exercised his discipli-
nary gatekeeping authority by channeling non-African Amer-
ican employees toward informal processes sure to save their
jobs, but refusing to let Morris proceed down that pathway.
And given the gravity of Morris’s infractions, directing him
down the formal route was certain to result in termination or
another harsh sanction—or at least a jury could have so
found. The district judge saw the evidence this exact way,
denying BNSF’s post-trial Rule 50(b) motion because Morris
established that Hendrickson made the waiver and alterna-
tive handling decisions for conductors in the Chicago area,
and in so doing he “serves as a common denominator be-
tween Morris’s termination and the disciplined issued to sim-
ilarly situated non-African-American employees.”
It makes no difference that the evidence Morris presented
did not align perfectly with a classic cat’s paw case. See Lust
v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) (“The [cat’s paw]
formula was (obviously) not intended to be taken literally.”).
Title VII does not require such pigeonholing. And as we have
said before, metaphors intended to be illustrative can some-
times overcomplicate matters and distract from the real ques-
tion at hand—a point we underscored in Ortiz. See 834 F.3d at
Nos. 19-2808 & 19-2913 17
765. BNSF is right that Hendrickson did nothing to deceive
the Review Board about Morris’s speeding infractions. But
that difference is of no legal significance where the same evi-
dence allowed the jury to infer, based on the different treat-
ment of non-black employees, that Hendrickson’s decision to
channel Morris down the path of formal discipline was based
on race.
A related point warrants punctuating. It is of no moment
that Hendrickson himself did not sign Morris’s termination
letter. Title VII encompasses employment decisions made by
more than one person, for “[a]n employer's authority to re-
ward, punish, or dismiss is often allocated among multiple
agents.” Staub, 562 U.S. at 420. And Morris’s theory of dis-
crimination is far from new. We have recognized before that
the refusal to provide an employee access to progressive dis-
cipline (here, an informal channel of discipline) available to
other workers can be a form of discrimination. See, e.g., Peirick
v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d
681, 689 (7th Cir. 2007). Combining these principles, we can-
not conclude that Morris’s approach to Title VII liability was
unavailable as a legal matter. The district court committed no
error in denying BNSF’s post-trial motion for judgment as a
matter of law.
III
That brings us to BNSF’s challenge to the district court’s
denial of the company’s motion for a new trial under Federal
Rule of Civil Procedure 59. We review the denial of a motion
for a new trial for abuse of discretion, and we uphold a jury
verdict on appeal if the record provides a reasonable basis to
do so. See Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440
(7th Cir. 2010). “A new trial is appropriate where the verdict
18 Nos. 19-2808 & 19-2913
is against the clear weight of the evidence or the trial was not
fair to the moving party.” Johnson v. Gen. Bd. of Pension &
Health Benefits of the United Methodist Church, 733 F.3d 722, 730
(7th Cir. 2013).
The company’s argument is twofold, and the first
ground—that the jury’s verdict was against the clear weight
of the trial evidence—need not detain us. We have explained
why the evidence was legally sufficient to support the jury’s
verdict. We see no abuse of discretion in the district court’s
separate assessment, after reweighing the evidence, that a
new trial was not warranted. See Clarett v. Roberts, 657 F.3d
664, 674 (7th Cir. 2011) (explaining the different standards of
review for a Rule 50 motion for judgment as a matter of law
and Rule 59 motion for a new trial).
BNSF also seeks a new trial based on the district court’s
decision not to follow our Pattern Jury Instructions and give
the jury the so-called business-judgment rule instruction.
That instruction would have resulted in the jury hearing the
following: “In deciding Plaintiff’s claim, you should not con-
cern yourselves with whether Defendant’s actions were wise,
reasonable, or fair. Rather, your concern is only whether
Plaintiff has proved that Defendant terminated him because
of race.” PATTERN CIVIL JURY INSTRUCTIONS OF THE SEVENTH
CIRCUIT, 3.07 (rev. 2017).
We see no abuse of discretion in the district court declining
to give the instruction. See Rapold v. Baxter Int'l Inc., 718 F.3d
602, 609 (7th Cir. 2013). As the district judge underscored, the
jury effectively learned of the governing law without it. The
court made plain that Morris had to prove he was terminated
because of his race—not for some other reason. While other
judges may have opted to double down and give the
Nos. 19-2808 & 19-2913 19
instruction, the district court’s not doing so here does not war-
rant a new trial. The instructions the court provided “accu-
rately stated the law and did not confuse the jury.” Schobert v.
Ill. Dep't of Transp., 304 F.3d 725, 729 (7th Cir. 2002). That is all
the law requires.
IV
We come to BNSF’s separate request for a new trial based
on the district court’s pretrial decision to bar three defense
witnesses from testifying and to limit the testimony of a
fourth witness. Here is what happened and why here, too, we
will not upset the district court’s reasonable exercise of dis-
cretion.
A. Initial and Pretrial Disclosures
Four months after BNSF answered Morris’s amended
complaint and near the beginning of discovery, the company
made its initial disclosures under Federal Rule of Civil Proce-
dure 26(a)(1). By its terms, the Rule required BNSF to supply
Morris with the names and contact information of people
“likely to have discoverable information” related to his
claims. FED. R. CIV. P. 26(a)(1). The Rule makes plain that these
initial disclosures are just that—“initial”—and envisions they
may (and often do) prove incomplete, for parties regularly
come across additional people with discoverable information
as well as documents containing information that may be
used to support their claims or defenses. Rule 26 addresses
this reality by imposing a duty to correct or supplement in a
timely manner “if the party learns that in some material re-
spect the disclosure or response is incomplete or incorrect.”
See FED. R. CIV. P. 26(e)(1)(A).
20 Nos. 19-2808 & 19-2913
Adherence to the duty to supplement takes on practical
importance in a case like this, where many BNSF employees
play a role in the facts, substantial document productions oc-
cur, and the parties have sharply competing views about
what information is pertinent to claims and defenses. In this
way, supplemental disclosures help to separate wheat from
chaff and bring focus to facts. And it matters to someone in
Morris’s shoes that BNSF attends diligently to making timely
supplemental disclosures: the whole point of introducing the
discovery mechanisms listed in Rule 26 was to ensure that tri-
als would no longer be “carried on in the dark.” Hickman v.
Taylor, 329 U.S. 495, 501 (1947).
Here BNSF waited to supplement its disclosures until Jan-
uary 2019, following the close of a protracted discovery pe-
riod and less than a month before trial. It was then that the
company, for the first time, disclosed to Morris three employ-
ees with pertinent information—Andrea Smith, Hannah Stad-
heim, and Jason Jenkins. BNSF also updated its disclosure re-
lated to Robert Della-Pietra. In its initial disclosure, the com-
pany identified Della-Pietra as a source of information about
Morris’s work history. In its supplemental disclosure, BNSF
informed Morris that Della-Pietra also had information re-
garding other incidents of employee discipline.
Morris argued that the new information had come way too
late. He moved to exclude Stadheim, Smith, and Jenkins from
testifying and to limit Della-Pietra to the topics outlined in
BNSF’s initial disclosure. See FED. R. CIV. P. 37(c)(1) (provid-
ing that if a party fails to disclose required information, “the
party is not allowed to use that information or witness . . . un-
less the failure was substantially justified or is harmless”).
BNSF countered that Morris knew about Smith, Stadheim,
Nos. 19-2808 & 19-2913 21
and Jenkins from both his work at the company and docu-
ments the company produced earlier in discovery.
The district court granted Morris’s motion and excluded
the witnesses from testifying at trial. The court rejected
BNSF’s contention that the newly-disclosed witnesses were
actually not new (because they had been identified in emails
and other documents), explaining that “[i]t’s one thing to
know that a person’s name is out there [but] it’s another thing
to know that the other side is intending to call him as a wit-
ness. That’s why we have Rule 26(a) disclosures.” From there
the district judge afforded the parties the option of continuing
the trial to allow Morris time to depose Smith, Stadheim, and
Jenkins and to seek more information from Della-Pietra.
When Morris’s counsel declined the invitation, the court
stood by its initial position and excluded the witnesses.
B. Analysis
BNSF argues that the district court erred in its interpreta-
tion of Rules 26 and 37 and alternatively that, even if it iden-
tified the right legal standard, it committed error in excluding
the witnesses. We review the allegation of legal error de novo,
and again review the district court’s discretionary ruling for
abuse of discretion. See Uncommon, LLC v. Spigen, Inc., 926
F.3d 409, 417 (7th Cir. 2019).
On the legal front, BNSF contends that the district court
erred in not assessing whether its supplemental disclosures
fit within the exception delineated in Rule 26(e)(1)(A) for in-
formation that has “otherwise been made known to the other
parties during the discovery process or in writing.” To the
company’s mind, the district court never answered that pre-
cise question and instead effectively focused on a different
22 Nos. 19-2808 & 19-2913
inquiry (perhaps under Rule 26(a)(3)(A)) about whether Mor-
ris received timely notice of the witnesses BNSF intended to
call at trial. Even more, BNSF says that it disclosed the rele-
vance of Stadheim, Jenkins and Smith through interrogatory
responses and prior document productions, and disputes that
the duty to supplement imposed by Rule 26(e) required the
company to say that it intended to call those employees as
trial witnesses.
We see no legal error. While it is true that the district court
did not expressly reason in terms of Rule 26(e), the court’s
analysis aligned closely with the precise consideration under-
lying the Rule’s exception for otherwise known information.
The court reasoned in practical terms and found, plain and
simple, that BNSF waited too long to supplement its discov-
ery—a finding that resulted in the district court then preclud-
ing the witnesses in question from testifying at all. The com-
bined application of Rule 26(a)(3), Rule 26(e), and Rule 37 al-
lowed the district court to reason along these lines. Put an-
other way, we do not read the district court as somehow im-
permissibly invoking Rule 26(e) as a standalone matter to im-
pose a witness-list disclosure mandate in tension with either
Rule 26(a)(3) or the court’s own standing order.
We also cannot accept the contention that the district
court’s exclusion reflected an abuse of discretion. BNSF’s sup-
plemental disclosures came too late—on the eve of trial and
after three years of discovery. The company had no good rea-
son for the late disclosures, telling the district court only that
a new set of defense lawyers took over and acted to correct
the omission without delay. As it did in the district court,
BNSF also leans heavily on a no-harm-no-foul contention,
Nos. 19-2808 & 19-2913 23
insisting that prior document productions effectively con-
tained the same information as the supplemental disclosure.
We reject the contention for two interrelated reasons. First,
we are unwilling to second-guess the district judge’s assess-
ment of the significance of the late disclosures. The parties
vigorously disputed the matter, and the district judge had a
ringside view and ultimately determined that BNSF’s failure
to timely supplement initial disclosures should not be ex-
cused, especially so close to trial. The district judge was
uniquely positioned to see the circumstances this way. It is
not in keeping with the deference mandated by the abuse of
discretion standard for us to put a heavy hand on the other
side of the balancing scale. Second, the district court’s ruling
gives plain and concrete effect to the unmistakable duty to
timely supplement mandated by Rule 26(e). Complying
should be a priority—not something brushed off as tedious or
unimportant so long as the information disclosed late can
somehow be unearthed like a needle in a haystack within a
prior discovery production. Parties who do not attend dili-
gently to their obligation to supplement initial disclosures
proceed at their own peril. Banking on principles of harmless
error to excuse negligence is risky business.
V
Finally, we arrive at the parties’ arguments about reme-
dies. BNSF contends that the district court erred in awarding
back pay and punitive damages. And for his part, Morris
cross-appeals the district court’s decision to award front pay
rather than to reinstate his employment with BNSF. Yet again
our review is deferential, respecting the district court’s prox-
imity to the evidence and assessment of the propriety of cer-
tain remedies. See Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010,
24 Nos. 19-2808 & 19-2913
1022 (7th Cir. 2016) (applying the abuse of discretion standard
to a challenge to a punitive damages award when no consti-
tutional issue is raised); Bruso v. United Airlines, Inc., 239 F.3d
848, 861 (7th Cir. 2001) (applying the same standard to a chal-
lenge to a reinstatement decision).
A. Back pay
After the jury returned a verdict in his favor, Morris en-
joyed a presumption of entitlement to back pay. See E.E.O.C.
v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1997).
During the bench trial on remedies, he testified about his un-
successful efforts to mitigate his damages by seeking a new
job instead of waiting on a payout from BNSF. See Brown v.
Smith, 827 F.3d 609, 616 (7th Cir. 2016) (explaining the plain-
tiff’s duty to mitigate by seeking employment). Morris ex-
plained that whenever he interviewed for a position, his dis-
missal from BNSF always came up and, in his view, resulted
in his not receiving a call-back interview or job offer.
BNSF questioned Morris’s diligence to find new work by
highlighting that he waited over a year to seek any work with
another railroad company. The company’s position was fair
game as a legal matter, as an employee’s failure to mitigate
damages can serve as a defense to an award of back pay. See
id. To succeed though, BNSF had to convince the district court
that Morris not only failed to seek comparable employment
in a diligent manner, but also that he had a reasonable likeli-
hood of securing such work. See id.
We see no error in the district court’s finding Morris dili-
gently pursued a new job after losing his position at BNSF.
Though Morris did not specifically seek railroad jobs for a pe-
riod of time, he applied consistently for other positions within
Nos. 19-2808 & 19-2913 25
the broader transportation sector. BNSF points to no legal au-
thority requiring Morris to seek only positions as a railroad
conductor for the new work to be comparable. The district
court did not abuse its discretion in awarding back pay based
on these facts.
B. Punitive Damages
BNSF also challenges the district court’s decision to up-
hold the jury’s punitive damages award. Punitive damages
are available under Title VII when the plaintiff shows the de-
fendant “engaged in a discriminatory practice or discrimina-
tory practices with malice or with reckless indifference.” 42
U.S.C. § 1981a(b)(1). The Supreme Court has interpreted the
statute to require a finding that the employer acted with “the
requisite mental state” or “in the face of a perceived risk that
its actions will violate the federal law.” Kolstad v. Am. Dental
Ass'n, 527 U.S. 526, 535–36 (1999). “[E]gregious or outra-
geous” discrimination is not required. Id. at 535.
The district court found that Scott Hendrickson’s testi-
mony justified the imposition of punitive damages. We see no
error, and definitely no abuse of discretion, in that conclusion.
Hendrickson admitted not only that he made false statements
in affidavits filed with the district court, but also offered in-
consistent reasons for not allowing Morris to resolve the
speeding violations through the informal means of waiver or
alternative handling. Whether those inaccuracies should have
been attributed to BNSF or its lawyers was up to the jury to
decide, but they certainly could have supported the inference
that the company was trying to hide discriminatory motives.
BNSF tries to characterize the shortcomings in Hendrickson’s
testimony as benign, but its view of the evidence is neither
here nor there in light of the verdict in Morris’s favor. See
26 Nos. 19-2808 & 19-2913
E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 834–35 (7th Cir. 2013);
see also Gracia, 842 F.3d at 1024 (“We must assess the repre-
hensibility of [the employer’s] conduct by viewing the facts as
the jury found them.”).
The company also labors to invoke the defense to punitive
damages that applies “if the employer can show that it en-
gaged in good faith efforts to implement an anti-discrimina-
tion policy.” E.E.O.C. v. Mgmt. Hosp. of Racine, Inc., 666 F.3d
422, 438 (7th Cir. 2012) (citing Kolstad, 527 U.S. at 545). This
argument fares no better. Time and time again during the
trial, the jury heard that BNSF’s records for employees receiv-
ing alternative handling or waiver were woefully incomplete
and lacking important detail. Bringing up these recordkeep-
ing shortfalls was part of BNSF’s strategy in arguing that Mor-
ris’s comparator evidence was insufficient. The move seems
to have backfired, as jurors asked multiple questions about
the lack of detail in the records on the comparator employees.
The jury could have reasonably concluded that regardless of
the anti-discrimination policy written down on paper, there
was no way for BNSF to make a “good-faith effort” to comply
if it did not keep track of how it treated its workers. See
Kolstad, 527 U.S. at 545–46.
C. Reinstatement
Turning at last to Morris’s cross-appeal, he challenges the
district court’s decision not to order his reinstatement at
BNSF. Reinstatement is the “preferred remedy” for plaintiffs
who have proven their termination was discriminatory and it
should be awarded when feasible. Hicks v. Forest Pres. Dist. of
Cook County, 677 F.3d 781, 792 (7th Cir. 2012). But we have
recognized that in certain circumstances, reinstatement will
be unworkable and all but impossible because of damaged
Nos. 19-2808 & 19-2913 27
relationships and lost confidence. See Bruso, 239 F.3d at 861–
62. Where, as here, the district court finds reinstatement im-
practicable, the plaintiff ordinarily receives a front pay award
for income that he would have received were it not for the
discriminatory firing. See id. at 862; see also Avitia v. Metro.
Club of Chicago, Inc., 49 F.3d 1219, 1231 (7th Cir. 1995) (explain-
ing that front pay is intended “to put [the plaintiff] in the iden-
tical financial position that he would have occupied had he
been reinstated”).
The district court did not abuse its discretion in declining
to order reinstatement. Morris admitted to committing the
two speeding violations during the single shift and while op-
erating a train carrying hazardous materials. The court saw
the violations as serious and establishing that Morris would
not enjoy “the confidence and respect” of the management if
he returned to BNSF as a conductor, rendering his rehiring
“infeasible.” Bruso, 239 F.3d at 862. The perspective is plenty
reasonable.
* * *
Morris’s case has traveled a long road. After three years of
discovery, he defeated BNSF’s motion for summary judg-
ment, got his case to trial, and persuaded the jury that the
company’s decision to fire him reflected race-based discrimi-
nation, evidenced by the lesser discipline imposed on com-
parator employees who also had committed serious violations
of safety rules. So many dimensions of BNSF’s appeal require
us to view the trial evidence in the light most favorable to
Morris and otherwise to afford healthy doses of discretion to
the district court’s management of the litigation and decisions
on appropriate remedies. Faithful to the demands of Title VII
28 Nos. 19-2808 & 19-2913
and the controlling standards of review, we AFFIRM across
the board.