Shick, Richard N. v. IL Dept Human Servic

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-2696
RICHARD N. SHICK,
Plaintiff-Appellee,
v.
ILLINOIS DEPARTMENT OF HUMAN
SERVICES, AS SUCCESSOR TO THE
ILLINOIS DEPARTMENT OF PUBLIC AID,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-4353—G. Patrick Murphy, Chief Judge.
____________
ARGUED JUNE 5, 2001—DECIDED OCTOBER 9, 2002
____________
Before FLAUM, Chief Judge, and MANION and ROVNER,
Circuit Judges.
MANION, Circuit Judge. Richard Shick, armed with a
sawed-off shotgun, robbed a convenience store in Joliet,
Illinois. At the time, he was employed as a case worker
at the Illinois Department of Public Aid. After the rob-
bery, he sued the Department, claiming that he was dis-
criminated against because of his disabilities and his
sex, and that the discrimination and treatment resulting
from it caused him such trauma that he committed the
2 No. 00-2696
robbery. A jury concluded that the Department did dis-
criminate against him because of his disabilities and sex,
and awarded him $5 million in damages and $166,700.00
in back pay. Because the Seventh Circuit ruled that the ADA
was not a valid abrogation of the states’ Eleventh Amend-
ment immunity, the district court vacated the disability
judgment and then capped the judgment for sex discrimina-
tion at $300,000.00. The court then awarded $303,830.00
in front pay. The Department appeals. We reverse and re-
mand.
I.
The evidence most favorable to Richard Shick, which is
what we must consider since he was the successful party
below, Sheehan v. Donlan Corp., 173 F.3d 1039, 1043-44 (7th
Cir. 1999), is taken primarily from his own testimony and
exhibits at trial. Shick, who was 52 at the time of trial, was
the youngest of eight children. He grew up in a poor but
stable family, graduated from high school, and after
a couple of short-term jobs, joined the Army in 1966, when
the Vietnam war was heating up. His first duty tour was
in Holland where he met his wife. They have been married
for over 30 years. He interrupted his service to acquire a
college degree in 1977. After a successful 20-year career
in the Army, where he received several commendations
and rose to the high enlisted rank of Master Sergeant, he
retired. He proceeded to work in various jobs, and in 1990
he was hired as a case worker in the Marshall, Illinois of-
fice of the State Department of Public Aid. While in the
Army, he incurred two disabilities: hearing loss due to his
proximity to a loud explosion, and permanent intestinal
bleeding from exposure to some disease while serving in
Italy. Despite these maladies, during his first four years
at the Department Shick performed his job well and en-
No. 00-2696 3
joyed his work. But on August 8, 1994, when Susan Yargus
was hired as administrator for the Marshall office, things
changed dramatically. As Shick testified at trial, “We just
seemed to butt heads all the time.” Apparently the tension
began right away. In a three-page single-spaced interof-
fice memo dated September 8, 1994, just one month af-
ter Yargus arrived, Shick had some critical observations
about Yargus’s policies on break-time, phone calls, work
priorities, office procedures, and Yargus’s lack of manage-
ment experience. In the ensuing weeks and months, a
number of other memos and meetings occurred, many
challenging Yargus’s unfair treatment of Shick.
The unfairness that Shick referred to permeated the two-
year period that Yargus supervised the office prior to his
departure. Much of the controversy concerned her insen-
sitivity to his disabilities, and her unequal application of
office rules concerning break-time, smoking and eating.
When Yargus arrived in August 1994, Shick’s disabilities
were multiple. In addition to the intestinal bleeding and
hearing loss, an injury to his left eye caused almost com-
plete loss of vision and his other eye, originally the weak-
est, required additional surgery and significant medica-
tion. The eye condition caused serious pain and head-
aches. He also developed carpal tunnel syndrome in both
arms, which required operations and two leaves of absence,
each lasting several weeks. In addition, because of sleep
apnea, he needed rest, preferably a nap, during his half-
hour lunch break. He was also tall and overweight and
preferred a particular chair. And he had occasional prob-
lems with his teeth. For each of these problems, he needed
some accommodation.
The medical situation that appeared to generate the
most conflict at the office was the intestinal disease that
caused internal bleeding and required frequent trips to
4 No. 00-2696
the bathroom. He claims that Yargus was suspicious of
his bathroom habits, and thought he was exaggerating the
need in order to create opportunities for additional break-
time when he could smoke. According to Shick, Yargus oc-
casionally banged on the bathroom door because he was
in there too long and she insisted that he obtain a letter from
his doctor stating that the frequent bathroom use was
necessary due to his condition. Since he was the only man
in the office, Shick had exclusive use of the employee’s
men’s bathroom (although some of the women claimed
they snuck in there for occasional smoke breaks as well).
In order to mitigate his fatigue from sleep apnea, he had
a sleeping bag on the bathroom floor so he could nap dur-
ing his lunch break. Yargus made him remove it.
When he needed batteries for the headset that ampli-
fied phone conversations, Yargus delayed replacing them
so he had to buy them himself. She also moved a copy
machine and printer near his desk, creating noise that
further interfered with his already-impaired hearing. She
had his favorite chair replaced with one that he had to
adjust many times per day. There was also evidence that
Yargus required Shick to administer his eye-drops at his
desk (as opposed to allowing him to use the restroom
for that purpose) because she suspected him of using
that time to also take a smoking break.
Although the office obtained an additional computer
terminal, at least partially to accommodate his carpal tun-
nel syndrome, Yargus assigned it to a female caseworker
who supposedly had seniority. Although Shick did take
extensive leaves for operations, one for an eye procedure
and two for carpal tunnel syndrome, he also requested
authorization for a number of one- or two-day leaves to
address other medical problems, but Yargus often resisted.
He also asserted that in addition to Yargus, those higher
No. 00-2696 5
in the chain of authority were also not sufficiently accom-
modating to his disability needs.
In addition to Yargus’s insensitivity to his medical
problems, Shick claims that she treated him less favor-
ably than female caseworkers. She strictly enforced his
time for taking breaks, while she was much more lenient
with the women. In fact, Shick kept a detailed log of the
break-time for his female coworkers to prove to Yargus
that their breaks were longer, but Yargus refused to recog-
nize it. She occasionally criticized him for eating at his
desk at inappropriate times, while the women were not
corrected for doing the same. And the women caseworkers
were each assigned their own (albeit small) offices, while
his desk was in the open near Yargus’s office where “she
could keep an eye on him.” She occasionally made other
negative comments about men. Shick attributed these neg-
ative feelings to the serious conflicts she encountered with
her husband in her recent divorce.
In 1992, before Yargus came on board, Shick began
working for an outside business selling metal buildings.
When Yargus arrived, she pressured him to cease all
business-related calls while at work, but when anoth-
er female caseworker’s husband was out of town, she did
not object to that caseworker taking his calls.
As time passed, Shick’s medical problems increased,
especially the problems with his eyes and carpal tunnel
syndrome. At the same time he was becoming more and
more depressed about his job because of the way Yargus
treated him. Early in 1996 he wrote Janet Wilson, the De-
partment’s EEO director, to complain about Yargus’s
discriminatory treatment. Wilson eventually called back, but
at the time Shick was on sick leave. When he returned,
Wilson was apparently on leave. He also claims that he
received the phone message late. When he did call in July he
6 No. 00-2696
discovered that Wilson had done very little to advance
the investigation of his complaints. At that point, he con-
cluded that no one in State government was going to take
care of his problems.
On July 22, 1996, Shick sent a memo to Yargus stating, “I
have had a lot worse pain in my eye the last few days
and am taking large doses of pain medication so I can
work . . . . I may act a little spacy as both keep me sick in
my stomach also. I’ll try not to take any more time off.” He
testified that he made the “time off” promise “because
there was a lot of conflict. I was having a lot of time off
because of all of the operations and there was a lot of
conflict on whether it was needed or not.” Also, at this
point, Shick was having what he described as mental
problems. He sought help “higher in the chain of com-
mand” in the State to no avail. He “talked to the union be-
cause they had a program to help people that were having
mental problems.” He also talked to a local doctor about
it to get help. Nothing seemed to work. At that point he
was “terribly depressed” and was having “panic attacks”
which hurt his work. He was also “terribly angry” with
Yargus. So he decided to seek help at the EEOC office in
Chicago. He made an appointment and Yargus approved
his request for a leave of absence for Monday, August 26,
1996.
The night before his appointment he traveled to Joliet,
Illinois and stayed with his nephew. In the morning he
drove to the EEOC office in Chicago. He was on time for
his 9:00 a.m. appointment, but it was not until the after-
noon that they finally met with him to discuss his case.
At that point he was crying, and although sympathetic,
the intake personnel said that it would be a year and a
half to two years before they could do anything for him.
With that he claims he was “devastated” because he hoped
No. 00-2696 7
for a resolution much sooner and he dreaded returning
to his job with Yargus in charge. He left Chicago. He was
taking heavy medications for both his depression and
his eye problems. He “cried all the way from Chicago and
ended up in Joliet” where his nephew lived. Although he
was familiar with the area, he got lost and could not find
his nephew’s house. At that point he recalls nothing un-
til he found himself in jail. He has no recollection of
how he got there, but it turns out that he robbed a White
Hen convenience store of about $200 while brandishing
1
a sawed-off shotgun. The psychiatrist who testified on
his behalf, Dr. Lyle Rossiter, originally examined Shick in
August 1997 at the request of his criminal defense attorney.
Dr. Rossiter indicated that for several months before the
robbery Shick suffered from a major depression. This “high-
ly stressed-out state” was caused both by his job difficulties
as well as his many physical ailments. On the day of the
offense he experienced severe pain along with the depres-
1
Shick explained his reason for possessing the sawed-off shot-
gun. Years before, when he and his wife arrived home, they inter-
rupted a burglary. Burglars were unloading some property
through a window. When discovered, the burglars escaped, but
in the process they dropped several items, including Shick’s shot-
gun. The burglars ran over the abandoned shotgun and bent
the barrel. Rather than discard the shotgun, Shick decided to
salvage it by cutting off the bent part of the barrel and the broken
part of the stock, leaving a sawed-off shotgun. He carried it in
his car because he needed protection for the occasions when
he carried large amounts of money. He sometimes carried as
much as $25,000 in cash generated by his building business. Also
he occasionally gambled, and he would have anywhere from
$20,000-$40,000 and he needed protection for that. Since he
stored the gun in the trunk of his car, it was with him when he
made the trip to Chicago.
8 No. 00-2696
sion, and was taking a combination of strong medications
that could have had a significant impact on his mental
condition. Dr. Rossiter opined that Shick “suffered a dis-
associative disorder on the day of the offense. He shut out,
in this case, access to the ordinary moral ideals and con-
straints of conscience that had regulated his conduct for 50
years.” Dr. Rossiter testified that the discriminatory treat-
ment that Shick received from Yargus was in effect “the
straw that broke the camel’s back” and caused him to
commit the extraordinary act of robbing the convenience
store. In any event, Shick was arrested and eventually
convicted of armed robbery and sentenced to 10 years in
prison
In the meantime, immediately after the robbery, Shick
was suspended from his job. After a grievance with the
union failed to lift the suspension, Shick decided to re-
sign so he could be replaced pending the long criminal
trial process (it took almost three years) rather than im-
pose his work on coworkers during his absence.
Shick had been in prison for eight months when the trial
at hand took place. The jury found the Department liable
for disability and sex discrimination, and awarded Shick
$5 million “for past and future emotional pain, suffering,
inconvenience, and mental anguish.” It also assessed lost
past earnings in the amount of $106,700.00. Because the
Seventh Circuit in Erickson v. Board of Governors, 207 F.3d
945 (7th Cir. 2000), held the Americans with Disabilities
Act is not a valid abrogation of states’ Eleventh Amend-
ment immunity, the district court vacated the ADA verdict.
The sex discrimination award was capped at $300,000. The
court awarded back pay, attorneys’ fees and $303,830
in front pay for the 12 years he could have worked until he
reached age 65, even though it included the time he will
spend serving his 10-year sentence. The court denied the
No. 00-2696 9
Department’s motion for a new trial, and the Department
appeals.
II.
On appeal the Department raises three issues. Primarily,
the Department charges that the district court abused its
discretion when it refused to order a new trial on Shick’s
Title VII count (sex discrimination). Because the jury heard
extensive evidence concerning disability-based discrimina-
tion, once the court dismissed the ADA count, given the
prejudicial effect of the inadmissible evidence, the De-
partment claims the court should not have allowed the
verdict on sex discrimination to stand. And, the Department
further asserts, even if the Title VII verdict were to remain
in place, the district court also abused its discretion by
awarding Shick front pay for the time (ten years) he was
sentenced to prison. Finally, the Department requests a
new trial based upon a recent change in state law which
would estop Shick from claiming that his supervisor’s treat-
ment caused him to commit the armed robbery.
A.
Regarding the first issue, essentially what the Department
wants is a new trial confined to the issue of sex discrimina-
tion. Although it is unusual, it is not unheard of for a jury
in a civil trial to render a verdict of liability on two separate
claims and then after trial for the district court to dismiss
one of the counts. Theoretically, if there is sufficient evi-
dence for the jury to have found liability on the remain-
ing count, in this case sex discrimination, the trial court has
the discretion to preserve the jury verdict even though
the jury heard significant and presumably prejudicial evi-
10 No. 00-2696
dence that would not be admissible under the surviving
count. Thus, the question before us is whether the trial court
abused its discretion by not awarding a new trial. Goodwin
v. MTD Products, Inc., 232 F.3d 600, 606 (7th Cir. 2000).
Under Federal Rule of Civil Procedure 59, in deciding
whether to grant a new trial the district court must de-
termine whether “the verdict is against the weight of the
evidence, the damages are excessive [or insufficient], or
if for other reasons the trial was not fair to the moving
party.” Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996)
(quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 516
(7th Cir. 1993)). Clearly the question here is whether the
trial was unfair to the Department given the extensive and
damaging evidence on disability discrimination that has
likely been rendered inadmissible post-trial. A new trial
may be granted in the event of an error in the admission
of evidence in extraordinary situations. A court should
only grant a new trial if the improperly admitted evidence
had “a substantial influence over the jury,” and the result
reached was “inconsistent with substantial justice.” Agushi
v. Duerr, 196 F.3d 754, 759 (7th Cir. 1999) (citing Palmquist
v. Selvik, 111 F.3d 1332, 1339 (7th Cir. 1997)). See also
Fed.R.Civ.P. 61 (“No error in either the admission or the
exclusion of evidence . . . is ground for granting a new trial
or for setting aside a verdict or for vacating, modifying,
or otherwise disturbing a judgment or order, unless re-
fusal to take such action appears to the court inconsistent
with substantial justice.”). Our cases hold that “evidentiary
errors satisfy this standard only if a significant chance
exists that they affected the outcome of the trial.” Hasham
v. California State Bd. of Equalization, 200 F.3d 1035, 1048
(7th Cir. 2000).
We considered a situation similar to the case at hand
in Cullin v. Olin Corp., 195 F.3d 317, 324-25 (7th Cir. 1999),
No. 00-2696 11
where, although the plaintiff had submitted enough evi-
dence to support the jury’s verdict on his ADEA claim, we
vacated the decision and remanded because the trial court
had improperly admitted irrelevant and highly prejudicial
evidence. Id. In that case, the prejudicial evidence con-
sisted of poor employee evaluation forms for the employee
who had replaced the plaintiff after the reduction in force
(RIF) that had resulted in the plaintiff’s dismissal. Id. Be-
cause the evaluations were completed post-RIF they played
no part in the decision to terminate the plaintiff and there-
fore were irrelevant. Because the irrelevant and highly
prejudicial evidence was discussed often throughout the
trial and was, in fact, some of the most compelling evidence
offered in support of the plaintiff’s case, the case was re-
manded for a new trial to be conducted without reference
to the replacement employee. Id. at 325 n.6.
In this case we face a similar issue in that the most
compelling evidence of Yargus’s abuse was not in fact due
to Shick’s sex, but because of his disabilities. This case
differs procedurally in that these evidentiary issues were
not raised through a Rule 403 motion at trial because at
the time, the prejudicial evidence was directly relevant
to the then valid claim under the ADA. However, once
Shick’s ADA claim was dismissed the Department raised
the issue of the effects of this prejudicial, and now largely
irrelevant, evidence through its motion for a new trial.
While unusual procedurally, this case is also unusual
because the plaintiff claimed and the jury apparently be-
lieved that Shick was driven to commit an armed robbery
because of the abusive treatment by his supervisor, Susan
Yargus. In effect, he was relying on a theory similar to one
made popular by comedian Flip Wilson: “The devil made
me do it.” After hearing all of the evidence, the jury ini-
tially awarded Shick five million dollars—this after he
12 No. 00-2696
had been convicted and had begun serving a 10-year pris-
on sentence. This steep verdict demonstrates the extra-
ordinary impact of the disability discrimination evidence
because, while it is clear that Shick and Yargus had an
acrimonious relationship (to say the least), the hostilities
were primarily caused by Yargus’s callous attitude about
Shick’s several disabilities—not his gender.
Admittedly, there was some evidence of sex discrimina-
tion, but a thorough review of the trial testimony and the
more than 100 exhibits presented discloses that most
of the evidence and testimony focused on Shick’s disabil-
ities and Yargus’s treatment of Shick regarding those dis-
abilities. For instance, Shick’s own testimony at trial is
replete with descriptions of how Yargus treated him in re-
2
lation to his health problems. As earlier noted, the most
frequent confrontations involved his intestinal bleeding
and her insensitivity to his bathroom needs. His hearing
problems were exacerbated when she placed his desk near
a noisy machine, and when she did not provide batteries
for his hearing aid. Yargus removed his sleeping bag
from the bathroom where he napped to remedy his sleep
apnea. She complained of his frequent absences for doc-
tors’ appointments and extended leaves for eye and carpal
tunnel syndrome operations. He testified that his many
2
To reiterate, Shick’s physical problems included: hearing loss
that required hearing aids; intestinal bleeding requiring frequent
trips to the bathroom as well as doctors’ appointments; sleep
apnea requiring noontime naps in the men’s bathroom; back
and teeth problems caused by a “crash in an elevator;” carpal
tunnel syndrom in both arms requiring absences for opera-
tions; obesity requiring his preference for a special chair; vision
problems—he was nearly blind in one eye, and had severe pain
in the other requiring medication and frequent treatment; de-
pression and heavy medication at the time of the robbery.
No. 00-2696 13
health problems, coupled with Yargus’s negative attitude
about his treatments and accommodation for these prob-
lems, caused him great stress and left him very depressed
and discouraged about his job.
Additionally, Shick’s medical expert, Dr. Rossiter, testified
about the circumstances that led up to Shick’s commis-
sion of the armed robbery, stating that Shick was suffer-
ing from a major depression for a number of months prior.
This “highly stressed-out state” was significantly caused by
his job circumstances as well as his “ongoing medical
conditions that were quite serious.” He described the “ac-
cumulated stress from these medical illnesses, [and] the
severe pain on the day of the offense.” He also described
the variety of medications prescribed, including some “that
can alter one’s state of consciousness, alter one’s state of
mind.” The doctor opined that Shick “suffered a disassoci-
ative [dis]order on the day of the offense. He shut out, in
this case, access to the ordinary moral ideals and con-
straints of conscience that had regulated his conduct for
50 years.” The doctor added that “the single factor that
distinguished his emotional state in 1996 from his emo-
tional states in prior years, under different circumstances,
was the peculiar relationship between him and Susan
Yargus.” He described Shick’s “feelings of being helpless
and hopeless, despairing, and at the same time very driv-
en by his own increasing anger, not just mild resentment
but rage, at her for the sense of unfairness.” In addition
to this testimony, of the 100-plus exhibits placed in evi-
dence at trial, the vast majority concerned conflicts and
disputes regarding his various disabilities and their im-
pact on him and his performance at the workplace.
Without question, there was some evidence, when taken
in the light most favorable to Shick, of sex discrimination.
Of the five employees in this particular office, Shick was
14 No. 00-2696
the only male. Before Yargus arrived, he was performing
his job satisfactorily and he liked the work that he was
doing. However, on September 8, 1994, a little over a
month after Yargus arrived, Shick sent her a three-plus-
page memo that was confrontational and critical. Many
other memos followed back and forth, some complaining
about Yargus’s favorable treatment of the women over
him on things such as break time, eating at the desk, tak-
ing medications at the desk, and use of the telephone for
business and personal calls. But the record, including
the testimony and the exhibits, clearly demonstrates that
the occasions of sex discrimination are minuscule com-
pared to the many conflicts involving his medical prob-
3
lems and disabilities. Dr. Rossiter described the severe
depression and ultimate rage as resulting from Shick’s con-
flict with Yargus, and explained that he believed that this
3
On appeal, the Department does not challenge the sufficiency
of the evidence as to the jury’s verdict on sex discrimination.
However, on remand, it may be that after all of the evidence
of disability discrimination falls out, the remaining evidence
fails to rise to the level of an adverse employment action, as
required by Title VII. See Traylor v. Brown, 295 F.3d 783 (7th Cir.
2002) (explaining that because Title VII only prohibits discrim-
ination with respect to the “terms, conditions or privileges
of employment,” 42 U.S.C. § 2000e-2(a)(1), an employee must
suffer a materially adverse employment action to recover, and
summarizing the “adverse action” requirement). Similarly, it
may be that the evidence of sex discrimination fails to reach the
level necessary to constitute a constructive discharge. See Simpson
v. Borg-Warner Auto., Inc., 196 F.3d 873, 877 (7th Cir. 1999)
(summarizing case law in which an employer’s unpleasant
and embarrassing actions were found insufficient to support a
constructive discharge claim). Those issues are better left to
the district court on remand after the evidence of disability
discrimination is sorted out.
No. 00-2696 15
drove Shick to commit the armed robbery. It is hard to
imagine how a jury would have accepted this extraordi-
nary theory for which it initially awarded Shick five million
dollars, without the extensive testimony about the abu-
sive treatment regarding his many ailments. Rather, the
jury had to be very sympathetic to Schick’s many mala-
dies and his efforts and needs to cope with them. At the
same time, the jury had to be extremely irritated with what
it perceived to be Yargus’s insensitivity and even harsh
attitude about these many medical challenges. This reac-
tion has everything to do with disability discrimination
and very little to do with sex discrimination.
While it is true that the trial judge has great discretion
in determining whether to grant a new trial, given the
overwhelming evidence of the abusive treatment regard-
ing Shick’s disabilities and the prejudicial effect of this
evidence, the limited evidence of sex discrimination was
tainted beyond repair, absent a new trial. Moreover, giv-
en the jury’s initial damages award of five million dollars,
we must conclude that this evidence had “a substantial
influence over the jury.” Palmquist, 111 F.3d at 1339; see
also Agushi. 196 F.3d at 759. Accordingly, we conclude that
the district court abused its discretion in denying the De-
partment a new trial on Shick’s sex discrimination claim
following its reversal of judgment on Shick’s ADA claim,
since most, if not all, of the evidence on disability discrimi-
nation became inadmissible.
B.
The trial court, having reached the conclusion that there
was no basis for granting a new trial, went on to award
Shick damages for sex discrimination. It capped the
award at the statutory ceiling of $300,000. The court also
16 No. 00-2696
awarded front pay in conjunction with the jury’s ver-
dict on sex discrimination. The Department acknowledges
that if the jury found liability for sex discrimination, front
pay could be appropriate for the time between Shick’s res-
ignation and his subsequent conviction and incarceration,
but claims that Shick is not entitled to front pay while he
is serving his prison sentence. The court recognized that
once in prison, Shick could not work so the Department
normally “shouldn’t have to pay for that,” but the court
also noted that Yargus’s treatment was “the reason he
went to prison in the first instance and lost his job.” Since
she drove “this poor fella [nuts] and the jury believed it,”
the district court awarded front pay in the amount of
$303,830.00, which covered the time until Shick would
reach age 65, including the time he will spend in prison.
Front pay is an appropriate remedy in Title VII cases
when reinstatement is not available or not advisable be-
cause of workplace incompatibility. Williams v. Pharmacia,
137 F.3d 944, 951 (7th Cir. 1998). As a substitute for rein-
statement, front pay is designed to compensate discrimina-
tion victims for the reasonable time it would take to
find comparable employment elsewhere. Id. at 953-54. But
front pay is only designed to compensate a plaintiff from
the lost earnings from his old job for as long as he “may
have been expected to hold it.” Id. Thus, if the employee
obtains another job, those earnings are deducted from
front pay. Here Shick could not have spent any more time
with his employer due to his conviction, and obviously
there is no chance that Shick would find any work, much
less comparable work once he was incarcerated. Thus, a
front pay award encompassing prison time would be
inappropriate, as returning to his job would have been im-
possible for reasons apart from the strained relationship
that existed with his employer.
No. 00-2696 17
Moreover, the district court’s decision in awarding Shick
front pay is fundamentally flawed for another reason—as
a matter of law, the Department’s actions were not the
proximate cause of Shick’s conviction and incarceration.
Yet, the district court concluded that because the “jury
found that Plaintiff ’s criminal conviction was the proxi-
mate result of the wrongful conduct of Defendant’s agent,
Susan Yargus, . . .” it would not deny Shick front pay on
the basis of his conviction. Given the jury’s five million
dollar verdict, it seems clear that the jury held Yargus re-
sponsible for Shick robbing the White Hen, and his sub-
sequent imprisonment. However, under general tort prin-
ciples governing causation which apply equally to Title
VII, a plaintiff may only recover damages proximately
caused by the defendant’s conduct. See, e.g., Hamilton v.
V.E. Rodgers, 791 F.2d 439, 444 (5th Cir. 1986) (plaintiff’s
burden in Title VII case is to prove harassment proxi-
mately caused injury), abrogated on other grounds by
Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990). While gener-
ally the issue of proximate cause is a jury question, in
extreme circumstances, such as the one at bar, the ques-
tion of proximate cause is an issue of law properly re-
solved by a court. See Suzik v. Sea-Land Corp., 89 F.3d 345,
350 (7th Cir. 1996); Collins v. American Optometric Assoc., 693
F.2d 636, 642 (7th Cir. 1983). In this case, as a matter of law,
Shick’s own act of using a sawed-off shotgun to rob a
convenience store constituted a superseding intervening
cause for his later conviction and incarceration. See Restate-
ment of Torts (Second) § 440 (“A superseding cause is an
act of a third person or other force which by its inter-
vention prevents the actor from being liable for harm to
another which his antecedent negligence is a substantial
factor in bringing about.”); Restatement of Torts (Second)
§ 441 (“An intervening force is one which actively operates
in producing harm to another after the actor’s negligent
act or omission has been committed.”); Prosser & Keeton
18 No. 00-2696
on Torts § 44 at 312 (defendant is not liable for damages
caused by intentional or criminal acts which no defen-
dant could foresee). Cf. Hamilton, 791 F.3d 444 (plaintiff’s
estate failed to prove defendant’s harassment was the
proximate cause of the plaintiff’s death). Accordingly,
Shick cannot recover from the defendants for damages
resulting in his conviction and incarceration whether in
the form of front pay, pain and suffering, or emotional
distress. Moreover, the extent of emotional injury attribut-
able to the defendant for Shick’s breakdown is question-
able too, as Shick’s own expert testified that his mental
condition was caused by both Yargus’s conduct and his own
physical ailments, and Shick’s expert blamed some of
Shick’s mental condition on the medication he was taking,
testifying that the combination of strong medications
could have had a significant impact on his mental condi-
tion. See Merriweather v. Family Dollar Stores of Ind., Inc.,
103 F.3d 576, 580 (7th Cir. 1996) (where employer’s dis-
criminatory action only partially responsible for emotional
harm, damages must be reduced accordingly). On remand,
these issues should be more fully explored, as well.
Finally, the Department asserts that a change in Illi-
nois law since the trial should be applied retroactively,
thus requiring a new trial. In American Family Mutual
Insurance Co. v. Savickas, 739 N.E.2d 445 (Ill. 2000), the
Illinois Supreme Court held that a criminal conviction
may have a collateral estoppel effect in a civil case such
as this. Based on Savickas, the Department further argues
that Shick would have been barred from introducing
testimony from his expert to the effect that Yargus caused
Shick to commit the robbery. However, because we have
already ruled that the Department is entitled to a new trial
and that as a matter of law the Department cannot be li-
able for damages stemming from Shick’s conviction and
incarceration, and thus this evidence would be inadmis-
No. 00-2696 19
sible for that reason, we need not consider the impact of
Savickas in this case.
III.
After the jury initially awarded Shick five million dollars
for his claim against the Department of Human Services
for disability and sex discrimination, the district court
properly vacated the disability judgment but let stand
the judgment on sex discrimination. Because the exten-
sive evidence on disability discrimination had a substan-
tial influence on the jury, thus making the trial unfair to
the Department if the judgment on sex discrimination
was left intact, we vacate the judgment and remand for
a new trial consistent with the principles set forth in this
opinion. Rule 36 shall apply on remand.
ROVNER, Circuit Judge, dissenting. The civil trial in
this case progressed on the theory that the discrimination
at the workplace led to Shick’s mental illness and his
constructive discharge. According to the unrefuted expert
testimony, he experienced a dissociative disorder in which
he shut out access to the ordinary moral ideals and con-
straints of conscience that had regulated his conduct for
50 years. The trial testimony portrayed the robbery as an
act fundamentally inconsistent with Shick’s life prior to
that date, which included twenty years in the army dur-
ing which time he received numerous commendations,
a thirty-year marriage, good work history, and no prior
history of any criminal action. The jury agreed that the dis-
20 No. 00-2696
crimination led to his mental illness and constructive dis-
charge, returning separate verdict forms on disability dis-
crimination and gender discrimination.
On appeal, IDHS stressed in its brief that it does not
contest the sufficiency of the evidence to support the ver-
dict on gender discrimination. In fact, IDHS concedes
that the trial record supports the verdict and the dam-
ages on the gender discrimination claim. The majority’s
suggestion to the contrary in footnote 3 is therefore incon-
sistent with the views of the trial court and the parties
themselves, and the record supports their contention that
the verdict was supported by sufficient evidence.
IDHS sought a new trial not because the evidence of
gender discrimination was insufficient to support the
verdict, but because the evidence relating to the ADA
claim was, in retrospect, inadmissible and was unfairly
prejudicial. The trial court rejected this argument, quoting
IDHS’ own representations earlier that the evidence of
disability and gender discrimination were “inextricably
intertwined,” and therefore that the same evidence would
be introduced in a trial based solely on gender discrimina-
tion. We review a trial court’s denial of a new trial only
for abuse of discretion. Cefalu v. Village of Elk Grove, 211
th
F.3d 416, 424 (7 Cir. 2000). It is because of that highly-
deferential standard of review that I am compelled to
dissent. We are not at liberty to second-guess the trial
court’s decision solely because we might have ruled other-
wise. Without a doubt, this appears to be a bizarre ver-
dict and damage award. But we were not there, we did
not view the witnesses as did the trial judge, and we are
not in the same position to assess the impact of the disabil-
ity evidence on the trial as a whole. The jury and trial
court were there, and the trial court agreed with the jury
that the evidence was sufficient to prove gender discrim-
No. 00-2696 21
ination. The trial court also determined, from its unique
vantage point, that much of the damaging evidence would
have been admissible in a trial on gender discrimina-
tion alone, and therefore that a new trial was not war-
ranted. On reviewing the record, I cannot conclude that
the trial court abused its discretion in that determination.
Although some evidence introduced at trial related solely
to the disability discrimination, there was substantial over-
lap in evidence for the two types of discrimination.
For instance, throughout the trial, Shick introduced
evidence that his use of time was closely scrutinized, and
that he received forms of discipline for violations that
were ignored when engaged in by the other employees,
all of whom were women. Testimony in relation to that
allegation included evidence regarding the close monitor-
ing of his bathroom breaks. He asserted that his use of the
bathroom was necessitated by his disability, and thus the
testimony related to his disability discrimination claim. It
also was relevant, however, to his claim of gender dis-
crimination, because his supervisor interpreted the bath-
room breaks as an attempt to take extra smoking breaks,
but similar long breaks or use of the restroom for smoking
went unchecked for the female employees. In this and
many other instances, testimony was relevant to both al-
legations of discrimination. It is perhaps a concession to
that overlap that IDHS never sought to sever the two
claims in the initial trial, even though the potential prej-
udicial effect was present in that trial as well. The evi-
dence on retrial of the gender discrimination claim would
largely track the evidence admitted in this trial. Viewing
the evidence as a whole, it simply was not an abuse of
discretion for the trial court to hold that the evidence
relating to the ADA claim was not so prejudicial as to
require a new trial. Because IDHS did not argue that the
front pay award was invalid based on the lack of proxi-
22 No. 00-2696
mate cause, I would not reach that issue given my views
on the request for a new trial, although I understand the
court’s desire to reach it in light of the remand where the
issue may arise again. I respectfully dissent.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-9-02