David, Lori v. Caterpillar Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1354
LORI DAVID,
Plaintiff-Appellee,
v.
CATERPILLAR, INCORPORATED,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 1250—Michael M. Mihm, Judge.
____________
ARGUED SEPTEMBER 20, 2002—DECIDED MARCH 17, 2003
____________
Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Lori David filed this action
against Caterpillar, Inc. (“Caterpillar”); she claimed that
Caterpillar had violated Title VII by discriminating and/
or retaliating against her when it denied her promotions
to five different positions while she was employed in its
security department. A jury returned a verdict for Cater-
pillar on four of Ms. David’s claims, but found that Cater-
pillar had retaliated against Ms. David by selecting an-
other candidate, Joni Lusher, to fill a sergeant position.
The jury awarded Ms. David $100,000 in compensatory
damages and $750,000 in punitive damages. Following the
2 No. 02-1354
verdict, Caterpillar renewed its motion for judgment as a
matter of law or, alternatively, for a new trial. The district
court granted Caterpillar’s motion in part with respect to
the damages award and denied the motion in all other
respects. The district court reduced the compensatory
award to $50,000 and the punitive award to $150,000. The
district court also awarded Ms. David $35,606.71 in back
pay and $20,697.81 in prejudgment interest. Caterpillar
appeals both the liability and damages determinations.
For the reasons set forth in the following opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A. Facts
Caterpillar hired Ms. David on March 6, 1989, as a fire
and security officer at its East Peoria, Illinois facility. Ms.
David continued to work in the security department until
June 1996, when she transferred to Caterpillar’s market-
ing department. As of 1994, no woman had ever been
promoted in Caterpillar’s security department. Ms. David
repeatedly had expressed interest to her supervisor, Ser-
geant Gary Shilling, in being promoted to the rank of
sergeant. Sergeant Shilling responded by telling Ms. David
that no woman would ever be promoted in the department.
It was the sergeants’ duty to evaluate officers and to
make recommendations to the captains for promotions.
In turn, the captains would recommend certain candi-
dates to Tom Ruxlow, the corporate security manager, and
to Larry Beckner, the assistant security manager. Although
the captains played a significant role in the selection
process, Ruxlow and Beckner made the final decisions
No. 02-1354 3
with respect to promotions. It is undisputed that Sergeant
Shilling did not recommend Ms. David for promotion
despite her excellent performance reviews.
On October 19, 1994, Ms. David and Kenny Hendrick,
her union steward, met with Ray Richardson, captain of
security at the East Peoria facility. Ms. David complained
to Captain Richardson about only males being promoted
in the security department. Captain Richardson told her
that, in order to be promoted, she needed to have a four-
year college degree; Ms. David responded that men who
did not have degrees were being promoted. At this point,
Richardson hit his desk and stated: “If it’s a lawsuit you
want, I don’t want no part of it.” R.120 at 371.
In November 1994, Ms. David filed charges with the
EEOC. She alleged that she had been denied promotions
due to sex discrimination. Both Captain Richardson and
Sergeant Shilling were informed of Ms. David’s charges.
After Ms. David complained internally about discrimina-
tion and filed her EEOC charges, Richardson and Shilling
began to treat Ms. David differently. Ms. David testified
that they would go out of their way to avoid speaking to
her and, when they did speak, that the encounters were
“angry” in tone. Id. at 379. Additionally, Ms. David testified
that Richardson and Shilling attempted to deny her an
educational leave of absence and avoided completing
paperwork that would have allowed her the opportunity
to apply for a promotional opportunity outside of the
security department.
In June of 1995, a sergeant position became available
in the East Peoria security department. The position was
not posted. In a meeting with all the captains and Beckner,
Captain Richardson recommended that Joni Lusher, a
woman, be promoted. Caterpillar had hired Lusher in
September 1991. Lusher had not requested or shown any
4 No. 02-1354
interest in being promoted until Tony Kegley, her sergeant,
and Captain Richardson approached her and specifically
asked her if she was interested in a promotion. Ms. David
was not asked if she was interested in the promotion,
nor was she recommended for the position. Upon her
promotion, effective July 3, 1995, Lusher was the first
woman promoted in the security department. Ms. David
believed that she was denied the promotion given to
Lusher because Ms. David had made a complaint of sex
discrimination.
Shortly after Lusher’s promotion, Ron Dieckow, an-
other security officer, spoke with Larry Mitzelfelt, the
captain of security for the Mossville facility. Mitzelfelt
learned of Lusher’s promotion in a captains’ meeting
in which Beckner and Richardson were present. According
to Dieckow, he asked Mitzelfelt why Lusher received
the promotion, and Mitzelfelt replied that “he had been
told by upper management that the next promotion in
the department would have to be a woman in response to
a lawsuit that was recently filed in East Peoria by an-
other female security officer.” Id. at 266. In a later conversa-
tion, Mitzelfelt told Dieckow “that they had looked at
every female employee in [the] department as a can-
didate for sergeant” and “even considered his secretary,
Sandy Daniels, as a possible candidate for a sergeant’s job.”
Id. at 267.
B. District Court Proceedings
A jury found that Caterpillar had selected Lusher in
retaliation against Ms. David, and awarded Ms. David
$100,000 in compensatory damages and $750,000 in puni-
tive damages. Following the jury’s verdict, Caterpillar
made a renewed motion for a directed verdict or, alter-
No. 02-1354 5
natively, for a new trial. The district court granted Caterpil-
lar’s motion, in part, by reducing the compensatory award
to $50,000 and the punitive award to $150,000. However,
the district court denied Caterpillar’s motion in all other
respects.
First, the district court concluded that the exclusion
of Dieckow’s testimony was not required under Rule 37
of the Federal Rules of Civil Procedure as a sanction for
Ms. David’s failure to timely disclose the substance of
Dieckow’s testimony. Specifically, the district court de-
termined that Caterpillar was not prejudiced by any dis-
covery violation because it had introduced evidence that
directly rebutted Dieckow’s testimony when it called
Mitzelfelt to testify that he had no such conversation with
Dieckow. The district court also noted that there was
no showing that Ms. David’s counsel had acted in bad
faith. Second, the district court concluded that, even as-
suming that the admission of Dieckow’s testimony was
improper, Caterpillar would not be entitled to judgment
as a matter of law because the jury’s verdict was sup-
ported by legally sufficient evidence. In particular, the
district court pointed to (1) substantial testimony concern-
ing the respective qualifications and experience of both
Ms. David and Lusher; (2) Ms. David’s testimony that
she was treated differently by her superiors after com-
plaining about discrimination; and (3) Rebecca Smith’s
testimony that she had been discharged from the security
department after complaining about sexual harassment.
The district court also awarded Ms. David back pay from
July 3, 1995, the date the jury found that she should
have been promoted to security sergeant, through the
end of May 1996, when she transferred to Caterpillar’s
marketing department, in the amount of $35,426.71, which
represents the difference between what Ms. David earned
6 No. 02-1354
during this period and what was earned by Lusher, the
person who received the promotion.
II
DISCUSSION
A. Discovery Violation
Caterpillar asserts that the district court erred in per-
mitting Dieckow to testify at trial because Ms. David
had failed to supplement her Rule 26(a)(1) disclosures to
identify Dieckow as having evidence supportive of her
claims. Caterpillar claims that Ms. David’s violation of
Rule 26 was severely prejudicial.
Rule 26 of the Federal Rules of Civil Procedure requires
a party to provide other parties with “the name and, if
known, the address and telephone number of each indi-
vidual likely to have discoverable information that the
disclosing party may use to support its claims or de-
fenses . . . , identifying the subjects of the information.” Fed.
R. Civ. P. 26(a)(1)(A). Rule 26 also requires a party to
supplement or amend its disclosures and discovery re-
sponses if it learns that the information disclosed or
the response is “incomplete or incorrect and if the addi-
tional corrective information has not otherwise been
made known to the other parties during the discovery
process or in writing.” Fed. R. Civ. P. 26(e)(1). To ensure
compliance with these discovery requirements, Rule 37
provides that “[a] party that without substantial justifica-
tion fails to disclose information required by Rule 26(a)
or 26(e)(1) . . . is not, unless such failure is harmless, per-
mitted to use as evidence at a trial . . . any witness or
information not so disclosed.” Fed. R. Civ. P. 37(c)(1).
This court has stated that “the sanction of exclusion is
automatic and mandatory unless the sanctioned party can
No. 02-1354 7
show that its violation of Rule 26(a) was either justified or
harmless.” Salgado v. Gen. Motors Corp., 150 F.3d 735, 742
(7th Cir. 1998). However, we also have stated that “[t]he
determination of whether a Rule 26(a) violation is jus-
tified or harmless is entrusted to the broad discretion of
the district court.” Mid-America Tablewares, Inc. v. Mogi
Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996); see
also Salgado, 150 F.3d at 739 (stating that a district court’s
ruling on a motion to exclude testimony for noncompli-
ance with Rule 26(a) is reviewed for an abuse of discre-
tion and “[u]nder this standard, we shall affirm the judg-
ment of the district court whenever we believe that the
district court chose an option that was among those
from which we might expect a district court reasonably
to choose”). “A district court need not make explicit find-
ings concerning the existence of a substantial justification
or the harmlessness of a failure to disclose.” Woodworker’s
Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993
(10th Cir. 1999). However, we have indicated that the
following factors should guide the district court’s discre-
tion: (1) the prejudice or surprise to the party against
whom the evidence is offered; (2) the ability of the party
to cure the prejudice; (3) the likelihood of disruption to
the trial; and (4) the bad faith or willfulness involved in
not disclosing the evidence at an earlier date. See Bronk
v. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995) (citing Spray-
Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1245
(7th Cir. 1982)); see also Woodworker’s Supply, Inc., 170 F.3d
at 993.
Caterpillar submits that the district court abused its
discretion in permitting Dieckow to testify that, when he
asked Mitzelfelt why Lusher was promoted to sergeant,
Mitzelfelt told him that “he had been told by upper man-
agement that the next promotion in the department would
have to be a female in response to a lawsuit that was
recently filed in East Peoria by another female security
8 No. 02-1354
officer,” and that “they had looked at every female em-
ployee in [the] department as a candidate for sergeant,”
including his secretary. R.120 at 266-67. In support of its
position, Caterpillar asserts that Ms. David’s counsel
learned of Dieckow’s conversations with Mitzelfelt in
August 1999; that Ms. David did not supplement her
Rule 26(a)(1) disclosures to identify Dieckow and Mitzel-
felt’s alleged remarks; that Ms. David did not supplement
her answer to Caterpillar’s interrogatories requesting the
identity of persons with knowledge relating to her claims
and the facts known by them; and that Caterpillar learned
of Mitzelfelt’s alleged statements only days before trial.
In ruling on Caterpillar’s renewed motion for a judg-
ment as a matter of law, the district court determined that
the exclusion of Dieckow’s testimony was not required
under Rule 37. The district court noted that Dieckow was
listed as a potential witness nearly a year and one-half
before trial; that Caterpillar did not seek a continuance
so that it could obtain additional information to rebut
Dieckow’s testimony; and that Caterpillar introduced
evidence that directly rebutted Dieckow’s testimony when
it called Mitzelfelt to testify that he had no such conversa-
tion with Dieckow. In light of these facts, the district court
determined that Caterpillar was not prejudiced by Ms.
David’s potential discovery violation. The district court
also noted that there was no showing that Ms. David’s
counsel had acted in bad faith.
Given the district court’s thoughtful discussion of this
issue, we cannot say that it abused its discretion in per-
mitting Dieckow to testify at trial. Caterpillar knew
Dieckow was a potential witness for eighteen months;
it interviewed Dieckow and learned the subject of his
testimony prior to trial; it did not seek a continuance; and
it was able to rebut directly Dieckow’s testimony at trial.
No. 02-1354 9
Caterpillar called Mitzelfelt, and he squarely denied mak-
ing any such statements. Because Mitzelfelt was the only
other person privy to the conversation in question, the
district court reasonably could have determined that
Caterpillar was not prejudiced by Ms. David’s failure to
disclose in a timely manner the subject of Dieckow’s
testimony.
B. Sufficiency of the Evidence
Caterpillar submits that there is insufficient evidence
to support the jury’s verdict that Caterpillar retaliated
against Ms. David when it selected Lusher for promotion
over Ms. David. We disagree. Although the evidence can-
not be characterized as overwhelming, it is legally suffi-
cient to support the jury’s verdict of retaliation.
Title VII makes it unlawful for an employer to discrimi-
nate against an employee for opposing a practice made
unlawful under the Act. See 42 U.S.C. § 2000e-3(a). To
prove a case of retaliation, the plaintiff must prove three
elements by a preponderance of the evidence: (1) that she
opposed an unlawful employment practice; (2) that she
suffered an adverse employment action; and (3) that the
adverse employment action was caused by her opposition
to the unlawful employment practice. See Cullom v. Brown,
209 F.3d 1035, 1040 (7th Cir. 2000). In this case, only the
third element is in dispute.
An employee can establish her employer’s intent to
retaliate either directly or indirectly. In the context of this
case, the only issue post-trial is whether Ms. David has
met her burden of providing sufficient evidence that Cater-
pillar’s stated reasons for promoting Lusher over Ms. David
were pretextual and that the real reason for Caterpillar’s
decision was to retaliate against Ms. David for filing
10 No. 02-1354
EEOC charges. See Hall v. Gary Cmty. Sch. Corp., 298 F.3d
672, 675 (7th Cir. 2002). To satisfy this burden Ms. David
needed to offer evidence showing that the reasons given
by Caterpillar “were not worthy of credence or other evi-
dence showing retaliation.” Id.We review a post-trial motion for judgment as a matter
of law de novo, but view the evidence in the light
most favorable to the nonmoving party and draw all
reasonable inferences in her favor. See Riemer v. Illinois
Dept. of Transp., 148 F.3d 800, 805 (7th Cir. 1998). We shall
not second-guess the jury’s view of the contested evi-
dence; the proper inquiry is whether, given the totality of
the evidence, Ms. David presented sufficient evidence
from which a reasonable jury could find in her favor. See
Hall, 298 F.3d at 675. Because credibility determinations
are often crucial in retaliation suits, we are particularly
careful in such cases “to avoid supplanting our view of
the credibility or weight of the evidence for that of both
the jury (in its verdict) and in the judge (in not interfer-
ing with the verdict).” Emmel v. Coca-Cola Bottling Co. of
Chi., 95 F.3d 627, 630 (7th Cir. 1996) (quoting Hybert v. Hearst
Corp., 900 F.2d 1050, 1054 (7th Cir. 1990)).
Caterpillar offered evidence at trial that it had selected
Lusher for promotion to sergeant over Ms. David because
Lusher was more qualified. Ms. David argued that this
explanation was pretextual and that Caterpillar had se-
lected Lusher rather than her in retaliation for Ms.
David’s having filed charges of discrimination with the
EEOC. Upon examination of the record, we must con-
clude that the following evidence, taken together, is suf-
ficient to support the jury’s verdict in favor of Ms. David:
(1) Ron Dieckow’s testimony relating to his conversations
with Larry Mitzelfelt; (2) Ms. David’s testimony that her
superiors were hostile toward her after she complained of
No. 02-1354 11
discrimination; and (3) Ms. David’s and Lusher’s com-
parative qualifications in combination with Caterpillar’s
1
shifting explanations for its decision.
Although Caterpillar urges us to ignore Dieckow’s
testimony, we already have determined that the district
court did not abuse its discretion in permitting Dieckow
to testify and, therefore, it was proper for the jury to
consider this evidence in reaching its verdict. Dieckow
testified that, shortly after Lusher’s promotion, he had
pointed out to Captain Mitzelfelt that Lusher had only
four years of service with the company and asked why
she had received the promotion. Mitzelfelt replied that “he
had been told by upper management that the next promo-
tion in the department would have to be a female in re-
sponse to a lawsuit that was recently filed in East Peoria
by another female security officer.” R.120 at 266. Dieckow
further testified that he had another conversation with
Mitzelfelt a few days later. Mitzelfelt then told him that
management “had looked at every female employee in [the]
department as a candidate for sergeant” and “even con-
sidered his secretary, Sandy Daniels, as a possible can-
didate for a sergeant’s job.” Id. at 267.
According to Dieckow’s testimony, Mitzelfelt did not
mention Ms. David by name. However, because Ms. David
was the only female security officer in East Peoria who had
filed a lawsuit against Caterpillar at that time, the jury
1
The district court also referred to Rebecca Smith’s testi-
mony that she believed that she had been discharged from the
security department in retaliation for complaining about sex-
ual harassment. We need not determine whether this evi-
dence should have been admitted, a point of dispute between
the parties. The evidence noted in the text is sufficient to sus-
tain the jury’s verdict.
12 No. 02-1354
readily could have inferred that the statement referred
to Ms. David. Additionally, although Mitzelfelt told
Dieckow that management considered every woman in
the security department, including his secretary, as a
potential candidate for the position, Ms. David testified
that she had not been considered for the promotion. Ms.
David testified that she had requested a promotion on
numerous occasions and yet, when the sergeant position
became available, she was not approached about the
promotion. In contrast, Lusher had expressed no interest
in obtaining a promotion and yet, Captain Richardson,
along with Lusher’s immediate supervisor, Sergeant Kegley,
solicited her candidacy for the position. See R.121 at 641.
Read in conjunction with Ms. David’s testimony that
she was not considered for the position, even though she
repeatedly had expressed interest in being promoted, we
believe that Dieckow’s testimony provides some evi-
dence from which the jury could have drawn an infer-
ence of retaliation. The jury was entitled to conclude that
Dieckow’s testimony shows that Caterpillar was con-
vinced of the need to promote a woman in response to
Ms. David’s allegations of sex discrimination; from this
testimony and supporting evidence, the jury could have
inferred that Caterpillar was equally convinced that the
first woman to be promoted in the security department
2
would not be Ms. David.
2
We note that Caterpillar has not contested the import of
Dieckow’s testimony. Although Caterpillar devotes much of its
brief to persuading us why this evidence should have been
excluded under Rule 37, it devotes none of its brief to challeng-
ing the significance of this evidence. Indeed, Caterpillar sub-
mits that “absent Dieckow’s testimony, there is insufficient
evidence to support the jury’s verdict.” Appellant’s Br. at 25.
No. 02-1354 13
Caterpillar next asserts that Ms. David’s testimony that
she was treated differently by her supervisors after com-
plaining about what she perceived to be the differential
treatment of males in the promotion process is insuf-
ficient to establish that Lusher’s promotion was moti-
vated by retaliation. Caterpillar submits that Ms. David’s
statements were vague and did not relate to the employ-
ment decision that Ms. David is challenging—the Lusher
promotion. We cannot accept this argument.
Ms. David testified that, after she complained internally
about discrimination and filed charges with the EEOC,
Sergeant Shilling and Captain Richardson became hostile
toward her. Ms. David testified: “I was totally ignored. The
only time I was spoken to is if they had a need to speak
to me. If I said ‘hello’ to them, they would not answer.
They dropped their eyes when they walked by, turned
the other way. It was evident [that] they were upset.” R.120
at 379. Ms. David further testified that Schilling and Rich-
ardson “ostracized” her and that when they “actually had
to talk” to her, they would turn the encounter into “an
angry situation.” Id. at 379. For example, Ms. David testified
that, immediately after she complained to Richardson
about discrimination in awarding promotions, he re-
sponded by pounding on the table and shouting: “If it’s
a lawsuit you want, I don’t want no part of it.” Id. at 371.
Additionally, Ms. David testified that, after she filed a
charge of discrimination, she learned of a promotional
opportunity outside of the security department, that
she approached Schilling and Richardson about the op-
portunity and that they deliberately avoided completing
the necessary paperwork. See id. at 380-81. Similarly, Ms.
David testified that Shilling denied her time off for illness
and that he only approved her vacation leave after she
emphasized that another security officer had received,
14 No. 02-1354
without any objection from management, 32 consecutive
days of vacation leave. See id. at 381-82.
Ms. David also testified that Shilling and Richardson
attempted to deny her an educational leave of absence.
Ms. David testified that she wanted the leave because
Richardson had told her that she needed a college degree
if she expected to advance in the security department
and that she believed she could accelerate the process
by taking two classes during a month in the summer.
Because the plant would be shut down for two of the
four weeks, Ms. David thought this was a “prime opportu-
nity.” Id. at 389. However, Ms. David testified that, when
she approached Shilling with this request, he told her
“No. . . . Worry about work. Don’t worry about school.”
Id. at 389. After receiving this negative response from
Shilling, Ms. David approached Richardson about the
leave, only to be asked “what did Gary [Shilling] say?” and
then to be told “I have to agree with him.” Id. at 390.
If believed, the jury reasonably could have determined
that such testimony, in combination with other evidence,
supported a finding of retaliatory intent. It was the pre-
rogative of the jury to determine the weight to give
such testimony in the course of its deliberations.
To the extent that Caterpillar argues that Shilling’s and
Richardson’s treatment of Ms. David following her com-
plaint of discrimination is irrelevant because they were
not the “decisionmakers” who promoted Lusher over Ms.
David, we cannot accept such a submission. Although
statements by a nondecisionmaker ordinarily do not
satisfy a plaintiff’s burden of proof in an employment
retaliation case, this court has recognized that “if a man-
ager with a retaliatory motive is involved in the [employ-
ment] decision . . . , that retaliatory motive, in some cir-
cumstances, may be imputed to the company, even if the
No. 02-1354 15
manager with a retaliatory motive was not the ultimate
decisionmaker.” Paluck v. Gooding Rubber Co., 221 F.3d 1003,
1010 (7th Cir. 2000). Specifically, we have stated that the
retaliatory motive of a “nondecisionmaker” may be im-
puted to the company where the “nondecisionmaker”
influenced the employment decision by concealing rele-
vant information from, or feeding false information to,
the ultimate decisionmaker. See Wallace v. SMC Pneumatics,
Inc., 103 F.3d 1394, 1400 (7th Cir. 1997). “In such a case,
the [retaliatory] motive of the other employee, not the
autonomous judgment of the nondiscriminating deci-
sion-maker, is the real cause of the adverse employment
action.” Id.In this case, Ms. David testified, and the jury was en-
titled to believe, that both Shilling and Richardson played
a significant role in Caterpillar’s decision to promote
Lusher over Ms. David. Ms. David asserted that it was the
sergeants’ duty to evaluate security officers and make
recommendations to the captains for promotions. Ms.
David’s testimony on this point was supported by other
evidence, including Caterpillar’s written job description
for security sergeants, which provided: “Security sergeants
direct and train a staff of security officers and provide
recommendations to the security captain regarding merit
increases [and] promotions.” R.119 at 84. It is undisputed
that Shilling was Ms. David’s sergeant and that he did
not recommend her for promotion, even though she con-
sistently had excellent performance evaluations. In addi-
tion, Richardson was the individual who approached Lush-
er about the promotion and recommended to Beckner that
Lusher be given the position. Beckner, who had virtually
no personal contact with Ms. David, testified that, when
it came to promotional decisions, he would have re-
ceived the necessary information about Ms. David from
Richardson. See R.122 at 683-84 (Q: “My point is when
16 No. 02-1354
it came to the promotional issue, the person that you
would have received the information about Lori David
from would have been Ray Richardson? A: That’s correct.”).
Under these circumstances, the fact that Shilling and
Richardson may not have had the final say regarding
Lusher’s promotion does not render Ms. David’s testi-
mony completely irrelevant. Given Caterpillar’s system for
awarding promotions, we believe that Shilling’s and Rich-
ardson’s actions were tantamount to concealing rele-
vant information from, or feeding false information to,
the ultimate decisionmaker. Thus, the jury properly could
have considered this evidence in finding that Caterpillar
retaliated against Ms. David when it selected Lusher for
promotion.
Finally, Caterpillar submits that the comparative qual-
ifications of Ms. David and Lusher do not support an
inference of retaliation because Ms. David’s credentials
were not so far superior that no reasonable employer
could have concluded that Lusher was the better person
for the job. In support of this argument, Caterpillar relies
on Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002),
cert. denied, 123 S. Ct. 117 (2002) (No. 02-120).
In Millbrook, we held that, when an employer asserts that
it chose another applicant over the plaintiff because the
selected candidate was more qualified, “evidence of the
applicants’ competing qualifications does not constitute
evidence of pretext unless those differences are so favor-
able to the plaintiff that there can be no dispute among
reasonable persons of impartial judgment that the plain-
tiff was clearly better qualified for the position at issue.”
Id. at 1180 (internal quotations omitted). Applying this
standard to the facts of this case, we agree that a compar-
ison of Ms. David’s and Lusher’s relative qualifications,
standing alone, would be insufficient to support the jury’s
verdict.
No. 02-1354 17
At the time of Lusher’s promotion, Ms. David had worked
as a Caterpillar fire and security officer for six years,
while Lusher had worked in the same position for almost
four years. Ms. David had a two-year associate degree in
law enforcement and was working toward a four-year
college degree; in contrast, Lusher had no formal educa-
tion beyond high school. Ms. David also had substantial
police-related training; Lusher had no comparable training.
Lusher, however, had significantly more fire and emer-
gency training than Ms. David. Based on a comparison
of these qualifications, Ms. David may well have been
more qualified than Lusher, but we cannot conclude that
the differences between the two candidates “are so favor-
able” to Ms. David “that there can be no dispute among
reasonable persons of impartial judgment that [she] was
clearly better qualified” for the sergeant position. Id.
However, Ms. David’s qualifications are not wholly
irrelevant. Nothing in Millbrook forecloses a comparison
of qualifications in a case, such as this, where the employ-
er offers conflicting explanations for its employment de-
cision. See Millbrook, 280 F.3d at 1183 (“While Millbrook
believes the jury should be allowed to review the candi-
dates’ relative qualifications to decide whether or not IBP
lied, without any evidence calling into question IBP’s
veracity,” such an analysis is not permitted.). At trial,
Caterpillar gave conflicting reasons for why Ms. David was
not promoted; both Shilling and Richardson, and to a
lesser extent Beckner and Ruxlow, were impeached on
numerous occasions with prior inconsistent testimony,
and their explanations were not supported by other evi-
3
dence in the record. Under these circumstances, we be-
3
For example, Shilling testified that, even though he con-
sidered Ms. David to be one of his best employees and could
(continued...)
18 No. 02-1354
3
(...continued)
think of no reason why she should not have been promoted,
he never had recommended her for promotion. See R.119 at 88.
Shilling’s explanation for not recommending Ms. David was
that she did not ask to be promoted in the security department.
See id. This assertion contradicted Ms. David’s testimony that
she repeatedly had told Shilling she wanted to be promoted to
the rank of sergeant and that Shilling responded by telling
her that no woman would ever be promoted in the department.
Additionally, Shilling knew that Ms. David’s EEOC charge
protested her lack of promotion in the security department.
Moreover, Shilling admitted that he had recommended a
different security officer for promotion despite the fact that
the officer never asked to be promoted. See id. at 86, 88.
Similarly, Richardson testified that in October 1994, Ms. David
complained to him about only males being promoted in the
security department and that he advised her to complete
her four-year college degree. See R.120 at 215. However, Richard-
son admitted that Lusher did not have a degree when she was
promoted to sergeant, nor did Emerson Hahn, Randy Warner or
Ken Elliott when they were promoted. See id. at 215-16. Addi-
tionally, Richardson testified that one of the reasons he did
not recommend Ms. David for promotion was that he did
not know she was interested in obtaining a promotion in the
security department. See id. at 210. This testimony, however,
squarely contradicted Richardson’s testimony regarding Ms.
David’s complaints of sex discrimination in October 1994, as
well as Richardson’s knowledge of Ms. David’s EEOC charge.
See id. at 211-12. Moreover, Richardson admitted that he rec-
ommended that Lusher be promoted to sergeant, even though
she had not previously requested such a promotion. Finally,
Richardson testified that the other reason he did not recom-
mend Ms. David for promotion was that he felt she needed to
work on her interpersonal skills and her relationship with co-
workers. See id. at 218. Richardson was impeached numerous
times on this issue. When asked at trial whether he per-
(continued...)
No. 02-1354 19
lieve that the jury reasonably could have doubted Cater-
pillar’s assertion that it honestly believed Lusher to be
the better candidate.
Furthermore, in Millbrook, we addressed the relatively
narrow issue of the circumstances under which evidence
of comparative qualifications, standing alone, is sufficient
to support a jury verdict of discrimination. In this case,
Ms. David offered additional evidence of retaliation, in-
cluding Dieckow’s testimony and evidence regarding
hostility toward Ms. David after she complained of dis-
crimination. The Millbrook standard is controlling in cases
in which the plaintiff relies exclusively on evidence of
the applicants’ comparative qualifications; however, it is
not controlling where the plaintiff offers other evidence
of retaliation in addition to the differences in relative
4
qualifications. We recognized as much in Millbrook. Ac-
3
(...continued)
sonally observed any specific instance in which Ms. David
failed to get along with her co-workers, Richardson stated:
“I would have to say that I did.” Id. at 212. However, when
asked the same question in his deposition, Richardson an-
swered “no.” Id. at 213. Similarly, when asked whether he
could recall an instance in which someone else reported to
him that Ms. David did not get along with her co-workers,
Richardson responded: “There was an instance.” Id. However,
when asked the same question during his deposition, Richard-
son stated “no.” Id. at 214. Thereafter, Richardson admitted
at trial that he could not identify a specific instance in which
Ms. David failed to demonstrate “good people skills.” Id.
Richardson also admitted that Ms. David consistently had
excellent written reviews. See id. at 204-05.
4
Relying on Emmel v. Coca-Cola Bottling Co. of Chicago, 95
F.3d 627 (7th Cir. 1996), and Bell v. Environmental Protection
(continued...)
20 No. 02-1354
cordingly, the jury properly could have weighed Ms.
David’s qualifications against those of Lusher in reaching
its verdict.
In summary, we believe that when the evidence is
viewed in its totality, Ms. David provided sufficient evi-
dence from which a rational jury could have concluded
that retaliation was a determining factor in Caterpillar’s
decision to promote Lusher over Ms. David.
C. New Trial
Caterpillar submits that, if it is not entitled to judgment
as a matter of law, then a new trial should be granted
so that Caterpillar has a fair opportunity to prepare a full
defense to Dieckow’s testimony and to eliminate any
prejudice caused by the admission of Rebecca Smith’s
testimony. “The decision whether to grant a new trial
is committed to the discretion of the district court, and
we therefore will not disturb that decision except under
exceptional circumstances showing a clear abuse of dis-
cretion.” Crossley v. Gen. Motors Corp., 33 F.3d 818, 821 (7th
Cir. 1994) (internal quotations omitted).
4
(...continued)
Agency, 232 F.3d 546 (7th Cir. 2000), the plaintiff in Millbrook
argued that, when an employer asserts that it had selected the
most qualified candidate, “the jury may return a verdict of
discrimination if, after reviewing the applicants’ relative qual-
ifications, it simply does not believe the employer’s assertion.”
Millbrook v. IBP, Inc., 280 F.3d 1169, 1177-78 (7th Cir. 2002).
In rejecting the plaintiff’s argument, we distinguished Emmel
and Bell on the basis that in those cases “the plaintiffs pre-
sented evidence of discrimination beyond the relative qualifica-
tions of the candidates.” Id.No. 02-1354 21
A new trial may be granted if the verdict is against
the clear weight of the evidence or the trial was unfair to
the moving party. See Miksis v. Howard, 106 F.3d 754, 757
(7th Cir. 1997). For the reasons discussed above, we do
not believe that the verdict is against the clear weight
of the evidence, nor do we believe that the trial was
unfair to Caterpillar.
The district court reasonably concluded that Caterpillar
was not prejudiced by Ms. David’s delay in revealing
the substance of Dieckow’s testimony. Notwithstanding
Caterpillar’s contention that it was unable to prepare a
full defense, Caterpillar was able to directly rebut
Dieckow’s testimony when it called Mitzelfelt to testify that
he had no such conversation with Dieckow.
As to Rebecca Smith’s testimony, we need not deter-
mine definitively whether her testimony that she be-
lieved that she had been discharged from the security
department in retaliation for complaining about sexual
harassment should have been admitted. Although a new
trial may be granted based on an error in the admission
of evidence, we have stated that “[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.” Shick
v. Illinois Dep’t of Human Servs., 307 F.3d 605, 611 (7th
Cir. 2002) (internal quotations omitted). Even if the district
court erred in admitting Smith’s testimony, we do not
believe that the testimony had a “substantial influence
over the jury.” Id. Wholly apart from Smith’s testimony,
there was sufficient evidence from which a rational jury
could have concluded that retaliation was a determining
factor in Caterpillar’s decision to promote Lusher over
Ms. David.
22 No. 02-1354
D. Compensatory Damages
Caterpillar asserts that the award of compensatory
damages should be vacated or further reduced because
it is excessive and not supported by the evidence. We re-
view a district court’s remittitur under an abuse of dis-
cretion standard. See Jabat, Inc. v. Smith, 201 F.3d 852, 857
(7th Cir. 2000). In reviewing an award of compensatory
damages, we are guided by three inquiries: (1) whether
the award is monstrously excessive; (2) whether there is
no rational connection between the award and the evi-
dence; and (3) whether the award is roughly comparable
to awards made in similar cases. See E.E.O.C. v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1285 (7th Cir. 1995).
In this case, the jury awarded Ms. David compensatory
damages in the amount of $100,000. The district court,
however, found that amount “excessive compensation
for the embarrassment, disappointment, inconvenience,
and frustration that Ms. David experienced as compared
to the amounts awarded in comparable, and arguably
more egregious, cases.” R.147 at 10. After reviewing a
series of cases from this court, the district court reduced
the compensatory award from $100,000 to $50,000.
Given the discretionary standard of review and the
district court’s thoughtful consideration of this issue, we
cannot conclude that the district court abused its dis-
cretion. Ms. David testified that following Lusher’s retalia-
tory promotion she became depressed, angry and humili-
ated. She testified that she felt “robbed” and “cheated”
when the promotion was given to Lusher, “like a truck had
just run [her] over.” R.124 at 970-71. Ms. David believed
that she had been sent a message: “Lori David shut up.
Don’t raise your hand. You know, be a good employee.
Just come to work, do your job and don’t question things.”
Id. at 975. For a two-week period, Ms. David went home
No. 02-1354 23
straight from work at 5:00 p.m. and went to bed. Thereafter,
Ms. David continued to experience stomach aches and
difficulty sleeping at night as a result of the anxiety and
stress. Additionally, Ms. David testified that she felt
she had no choice but to reposition herself for a career in
marketing because she had no chance of promotion in
security; as a result, Ms. David took an educational leave
and was forced to use her savings in order to help fi-
nance the completion of her degree.
Based on the foregoing evidence, the district court
made a reasoned decision when it reduced the $100,000
award to $50,0000; there is no justification for our second-
guessing that determination.
E. Punitive Damages
Caterpillar further submits that the award of punitive
damages should be vacated or substantially reduced
because it is excessive and against the manifest weight
of the evidence.
Title VII authorizes an award of punitive damages when
a plaintiff demonstrates that the employer has engaged
in intentional discrimination “with malice or with reck-
less indifference to the federally protected rights of an
aggrieved individual.” 42 U.S.C. § 1981a(b)(1). “The terms
‘malice’ and ‘reckless indifference’ refer to the employer’s
knowledge that it may be violating federal law, not its
awareness that it is engaging in discrimination.” Cooke
v. Stefani Mgmt. Servs., Inc., 250 F.3d 564, 568 (7th Cir.
2001) (citing Kolstad v. American Dental Ass’n, 527 U.S. 526,
535 (1999)).
In this case, the jury awarded Ms. David punitive dam-
ages in the amount of $750,000. Under 42 U.S.C. § 1981a(b)
24 No. 02-1354
(3)(D), the district court was required to reduce the award
to no more than $250,000. However, the district court de-
termined that an additional reduction in the punitive
damages award to $150,000 was required to maintain a
reasonable relationship between the award and the par-
ticular harm that resulted from Caterpillar’s misconduct.
Before this court, Caterpillar argues primarily that Ms.
David should not be awarded punitive damages because
she wanted to leave the security department and Cater-
pillar helped her to do so. In its estimation, Caterpillar
treated Ms. David well; she ultimately received “a promo-
tion to a marketing job where she is now earning more
compensation and has far greater potential for advance-
ment than she would have had she remained in security.”
Appellant’s Br. at 38. We think that Caterpillar’s argument
misses the mark. Caterpillar has cited no authority for the
proposition that good deeds taken by the employer after
it has made an unlawful employment decision somehow
insulate the employer from an award of punitive dam-
ages. Furthermore, the jury was entitled to reject Caterpil-
lar’s contention that Ms. David really did not want to be
promoted in the security department when it awarded
her damages for emotional distress.
Because the award is not monstrously excessive and the
district court carefully reviewed the evidence and relevant
case law in its order granting the remittitur, we are not
inclined to second-guess its evaluation.
F. Back Pay
Finally, Caterpillar submits that the award of back
pay and prejudgment interest should be vacated or substan-
tially reduced because the award is unnecessary to make
Ms. David whole.
No. 02-1354 25
“The district court has broad equitable discretion to
fashion back pay awards to make the Title VII victim
whole.” E.E.O.C. v. Ilona of Hungary, 108 F.3d 1569, 1579
(7th Cir. 1997). Once the jury found unlawful retaliation
in violation of Title VII, “there was a strong presump-
tion that [Ms. David] was entitled to a back pay award on
the basis of what she would have earned absent the dis-
crimination.” Id. With this presumption in mind, the dis-
trict court awarded Ms. David back pay from July 3, 1995,
the date the jury found that she should have been pro-
moted to security sergeant, through the end of May 1996,
when she transferred to Caterpillar’s marketing depart-
ment. The amount awarded, $35,426.71, represents the dif-
ference between what Ms. David earned during this period
and what was earned by Lusher, the person who was
5
wrongfully promoted.
Caterpillar objects to the district court’s award of back
pay on two grounds. First, Caterpillar submits that the
award should be vacated because, although Ms. David “did
not get one job she claims she once wanted, she was
given another job that she had pursued for years, and is
now earning more compensation and has greater poten-
tial for advancement than she would have had she ac-
cepted the sergeant job offered to Lusher.” Appellant’s Br.
at 40.
We cannot accept this argument. The jury was entitled to
reject Caterpillar’s argument that Ms. David’s real goal was
to leave the security department for marketing, and indeed,
the record is full of evidence that she wanted to be pro-
5
Based on this amount, the district court also awarded
Ms. David $20,697.81 in prejudgment interest. Caterpillar’s
challenge to the award of prejudgment interest is tied to its
challenge of back pay.
26 No. 02-1354
moted in security. The fact that Ms. David now has great-
er earning and advancement potential is irrelevant to
the issue of back pay; Ms. David is not seeking an award
of front pay.
Second, Caterpillar argues that, at a minimum, the
award should be reduced substantially because Ms. David
should not be compensated for the time when she went
on voluntary educational leave. In Caterpillar’s view, an
award of back pay for this time is contrary to her duty to
mitigate her damages. We see no merit in this argument.
Ms. David took an educational leave in response to Cap-
tain Richardson’s instruction that she needed to obtain
her degree in order to have a realistic chance of being
promoted in the security department. The district court
was entitled to conclude that, had Ms. David been pro-
moted to sergeant, instead of Lusher, she would not have
taken the educational leave. Moreover, had Ms. David
not gone on educational leave, she would not have been
eligible for transfer to a higher paying position in the mar-
keting department.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-17-03