Davis et al v. Packer Engineering, Inc. et al
Filing
286
MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 4/12/2018. Mailed notice(ef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANYA DAVIS, et al.,
Plaintiffs,
v.
PACKER ENGINEERING, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
No. 11-cv-07923
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
This case went to trial before a jury on claims by Plaintiffs Danya Davis and Bernessa
Wilson that Defendant Packer Engineering, Inc. (“Packer”) subjected them to a hostile work
environment and retaliated against them for complaining, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as well as a retaliation claim by
Plaintiff Shannon Webb against Packer under the same statute. The jury found in favor of Packer
on all three Plaintiffs’ retaliation claims but in favor of Davis and Wilson on their hostile work
environment claims. Now before the Court are three post-trial motions by Packer: motions for
judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) as to each of Davis
and Wilson (Dkt. Nos. 236, 238) and a motion for a new trial pursuant to Federal Rule of Civil
Procedure 59 (Dkt. No. 240). For the reasons discussed below, the motions are denied.
BACKGROUND
Wilson and Davis both claimed that, while working at Packer, their co-workers subjected
them to a hostile work environment because of their sex. At trial, Wilson’s claim was supported
primarily by evidence that she heard and saw a male co-worker watching pornography and
masturbating in his glass-walled office during the work day, over the course of many months and
often several times a day. Meanwhile, in support of her claim, Davis presented evidence at trial
regarding a range of conduct, including male co-workers watching pornography in their offices,
as well as co-workers’ frequent use of the words “bitch” and “cunt” to refer to Davis and other
female Packer employees; a male co-worker referring to Davis as a “sexually dangerous woman”
and a “sexual predator” to other staff members; that same co-worker suggesting Davis’s place
was to be at home, barefoot and pregnant; and similar regular and frequent comments by male
Packer employees. Wilson and Davis both also presented evidence that they reported the conduct
to Packer executives multiple times, that Packer did nothing to stop the conduct, and that instead
Davis and Wilson were wrongfully terminated in retaliation for reporting the unlawful hostile
work environment. Webb, the lone male plaintiff, also claimed that Packer wrongfully terminated
him in retaliation for reporting the unlawful hostile work environment that his female coworkers
were facing.
After an eleven-day trial during which it heard from 25 witnesses and considered 93
exhibits, the jury returned a defense verdict for Packer on all three retaliation claims but found in
favor of Wilson and Davis on their hostile work environment claims. The jury awarded Davis
$150,000 in compensatory damages and $3,000,000 in punitive damages, and awarded Wilson
$300,000 in compensatory damages and $3,000,000 in punitive damages. On Packer’s motion, the
Court subsequently reduced the jury verdicts to $50,000 in compensatory damages and $0 in
punitive damages for each prevailing Plaintiff pursuant to Title VII’s damages cap for employers
with more than 14 but fewer than 101 employees. Packer now asks this Court to enter judgment in
its favor notwithstanding the jury’s verdicts against it or, alternatively, to order a new trial.
2
DISCUSSION
I.
Packer’s Motions for Judgment as a Matter of Law
A court may grant judgment as a matter of law against a party who has been fully heard at
trial if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the
[nonmoving] party.” Fed R. Civ. P. 50(a)(1); see Thomas v. Cook County Sheriff’s Dep’t, 604
F.3d 293, 300‒01 (7th Cir. 2009). Put another way, the jury’s verdict must stand unless no
rational jury could have returned such a verdict. Id. at 301. In deciding a Rule 50 motion, a court
“do[es] not weigh evidence or assess the credibility of witnesses. Instead, [it] draw[s] all
reasonable inferences in favor of the nonmoving party.” Id. (citations omitted).
As the jury was instructed, to succeed on their sexual harassment hostile work
environment claims, Davis and Wilson each had to establish seven elements: (1) she was
subjected to sexual harassment; (2) the conduct was unwelcome; (3) the conduct occurred because
she was female; (4) the conduct was sufficiently severe or pervasive that a reasonable person in
her position would find her work environment to be hostile or abusive; (5) at the time the conduct
occurred, she believed that the conduct made her work environment hostile or abusive; (6) Packer
knew or should have known about the conduct; and (7) Packer did not take reasonable steps to
correct the situation and prevent harassment from recurring. (Jury Instructions, Dkt. No. 197; see
Seventh Circuit Pattern Instruction 3.04 (citing Kriescher v. Fox Hills Golf Resort and Conf. Ctr.
FHR, Inc., 384 F.3d 912, 915 (7th Cir. 2004); Rizzo v. Sheahan, 266 F.3d 705, 711‒12 (7th Cir.
2001); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806‒07 (7th Cir. 2000); Pryor v. Seyfarth,
Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000)).)
3
A.
Plaintiff Davis
Packer contends that Davis failed to present sufficient evidence to support her hostile work
environment claim for several reasons. First, Packer argues that the evidence of alleged
harassment against Davis within the statutory time period1 was not sufficiently severe or
pervasive such that a reasonable person in her position would find her work environment to be
hostile. Packer also argues that the evidence showed that the subjective requirement—that is, that
Davis believed that the challenged conduct made her work environment hostile—was not met
because Davis’s own conduct was inconsistent with feeling sexually harassed. For example,
Packer presented evidence that it contends established that Davis engaged in inappropriate
behavior herself, including having an extra-marital affair with another Packer employee and
dressing provocatively at work. Packer further contends that Davis failed to prove that the alleged
conduct by Packer employees was directed at her because of her sex, as much of the conduct
about which she complained was not directed specifically to her and both women and men at
Packer were subjected to the same work environment. Packer also claims that Davis failed to
prove that Packer knew or should have known about the harassing conduct and failed to take
reasonable steps to prevent it because the evidence showed that, upon receipt of Davis’s EEOC
charge, Packer retained outside counsel and required the employee behind many of Davis’s
complaints, Packer Chief Technical Officer Ed Caulfield, to go to harassment training. Finally,
Packer argues that the jury’s award of compensatory damages was improper because Davis only
sought such damages for emotional distress and she failed to put forth any evidence to support her
claim.
1
Under 42 U.S.C. § 2000e-5(e), as a prerequisite to bringing a lawsuit, an individual must file a charge
with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the unlawful
employment practice about which he or she complains. Davis filed her EEOC charge on January 25, 2010.
4
The Court addresses each argument in turn. First, it was not unreasonable for the jury to
find that the totality of the evidence established that Davis worked in an objectively hostile work
environment. See, e.g., Boss v. Castro, 816 F.3d 910, 920 (7th Cir. 2016) (indicating that
“[d]eciding whether a work environment is hostile” requires a “totality of the circumstances
approach,” which includes “consideration of factors like the frequency of improper conduct, its
severity, whether its physically threatening or humiliating . . . and whether it unreasonably
interferes with the employee’s work performance”). For example, Davis testified that, within the
statutory period, she heard Caulfield and another co-worker, Scott Erdman, say “cunt” a “fair
amount” throughout her tenure (R. 1018‒20); that Caulfield used the terms “bitch” and “stupid
bitch” to refer to women (R. 1022); that Caulfield told her she should be at home, barefoot and
pregnant (R. 1054); that Caulfield called her an “overpaid bitch” (R. 1055); that Caulfield
suggested to her that Packer should cut salaries in half for all administrative assistants, who were
all female, because most of them had men to support them (R. 1013, 1058‒59); and that she
heard pornography sounds coming from the offices of multiple male colleagues, including Tage
Tarlson, Aaron Jones, and John McKinney. (R. 1044.)
In addition, the jury was entitled to consider evidence of conduct outside the statutory
period as well as conduct directed at others in determining whether a hostile work environment
existed. See, e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (“It does
not matter . . . that some of the component acts of the hostile work environment fall outside the
statutory time period. Provided that an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be considered by a court for
purposes of determining liability.”); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir.
The statutory period is thus the 300 days preceding Davis’s filing of her charge: March 25, 2009 to January
25, 2010.
5
1997) (evidence of harassment directed at employees other than the plaintiff is relevant in
demonstrating the existence of a hostile work environment). Outside the statutory period, Davis
testified that, among other incidents, Erdman shared nude pictures of a young woman at the firm
with his colleagues (R. 1042); Erdman commented that an administrative assistant’s “pussy was
too stretched” (R. 1043); Jones occasionally placed a rubber chicken on his office door handle and
when asked why would explain that sometimes he had to “choke the chicken” and would simulate
humping his office door (R. 1043); Caulfield called Davis a “sexually dangerous woman” and a
“sexual predator” to his staff members (R. 1049); Caulfield suggested that colleague Kim
Strathman was going to “grudge fuck” her ex-husband (R. 1024, 1040); Caulfield discussed
“camel toe” with other employees and sought out pictures of women with camel toe (R.
1066‒67); Caulfield sent pornographic material to female colleagues while they were working (R.
1068); and Jones responded to the sexual harassment training that Davis implemented by
commenting that “we don’t report [sexual harassment]. We grade it.” (R. 1051.)
There was also sufficient evidence for the jury to find that Davis viewed her work
environment as hostile. For example, Davis reported the majority of the incidents to personnel on
the executive committee and no action was taken. (R. 1042, 1043, 1044, 1047‒48, 1055, 1066‒67,
1069.) Davis testified that she was “disgusted,” “saddened,” and “angry” that she had to remind
Packer leadership that they could not target female leadership for layoffs. (R. 1015.) She testified
that she believes “cunt” is the most offensive word in the English language, and that hearing the
word regularly while at work made her feel physically “sick;” “dirty, degraded, and worthless;”
and “very distracted” and “less inspired” to work. (R. 1016, 1018, 1020.) When Caulfield told her
that her “only place was to be home barefoot and pregnant,” it made her feel “horrible” and
6
“hurt.” (R. 1054.) Finally, she was “upset” when she organized a sexual harassment training for
Packer employees that was not fully attended or taken seriously. (R. 1072.)
The jury was also entitled to find that the conduct was directed at Davis because she was
female. Davis testified about several incidents that the jury could have found were directed
specifically at Davis because of her sex, for example, testimony that Caulfield told her she should
be at home, barefoot and pregnant (R. 1054), and that he called her “an overpaid bitch,” a
“sexually dangerous woman,” and a “sexual predator” to his staff members. (R. 1049, 1055.) See,
e.g., Passananti v. Cook Cty., 689 F.3d 655, 659 (7th Cir. 2012) (“The jury could reasonably treat
the frequent and hostile use of the word ‘bitch’ to be a gender-based epithet that contributed to a
sexually hostile work environment.”). Moreover, the fact that male and female employees were
equally subjected to the environment at Packer—including the regular use of “cunt” and “bitch,”
sounds of pornography emanating from male employees’ offices, and sexualized conversation—
does not preclude a finding that the conduct occurred because the plaintiff was female. A work
environment equally applicable to male and female employees but particularly degrading to
women may meet the “based on sex” requirement of the hostile work environment framework,
even where the conduct is not directed at a particular female plaintiff because “[s]uch workplace
disparagement of women . . . stands as a serious impediment to any woman's efforts to deal
professionally with her male colleagues.” Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004)
(holding the “based on sex” requirement was met where employees were subjected to the same
work environment regardless of gender because “the depiction of women in the offensive jokes
and graphics . . . was uniformly sexually demeaning and communicated the message that women
as a group were available for sexual exploitation by men”); see also Reeves v. C.H. Robinson
Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (explaining that “words or conduct with
7
sexual content that disparately expose members of one sex to disadvantageous terms or conditions
of employment also may support a claim under Title VII” and that “[e]vidence that co-workers
aimed their insults at a protected group may give rise to the inference of an intent to discriminate
on the basis of sex, even when those insults are not directed at the individual employee”);
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir. 2003) (holding that “[a] reasonable
jury could find that much of the sex-laden and sexist talk and conduct in the [work environment]
was aimed at [plaintiff] because of her sex” even though the conduct was not directed at plaintiff
and was equally viewable by male employees because the conduct “was particularly offensive to
women”); Harris v. Mayor and City Council, 429 Fed. Appx. 195, 198, 201 (4th Cir. 2010)
(display of “provocative pictures” of women throughout the work environment “sexualized
[plaintiff’s] work place and satisfied the ‘because of’ gender requirement”).
As to Packer’s argument that the evidence did not establish that Packer was negligent, the
jury heard evidence that Davis routinely reported conduct to Packer’s executive leadership—
including Executive Vice President of Finance Charlotte Sartain, Chief Executive Officer Mike
Koehler, and Chairman of the Board Kenneth Packer—and nothing was done. (R. 1021‒22, 1037,
1041‒42). Packer’s argument that it took reasonable steps in response to the complaints focuses
only on the company’s response once it received Davis’s EEOC complaint. But evidence at trial
suggested that Packer was aware of the alleged conduct before the EEOC complaint and did
nothing, and the jury was entitled to credit that evidence. See, e.g., May v. Chrysler Grp., LLC,
716 F.3d 963, 972 (7th Cir. 2013) (“[T]he jury was presented with more than enough evidence to
conclude that [defendant ] had not done enough. [Defendant], of course, characterizes its efforts
differently . . . . But the jury certainly did not have to believe that [defendant’s] efforts . . . were
8
‘adequate’ or, even if it thought [the] efforts were adequate, that they started ‘promptly’ enough
for [defendant] to avoid liability.”).
Finally, the record supports the jury’s award of compensatory damages for emotional
distress.2 A court “must accord substantial deference to a jury’s determination of compensatory
damages.” Carter v. Chicago Transit Auth., No. 99 C 7738, 2001 WL 1035712, *8 (N.D. Ill. Sept.
7, 2001) (citing Ramsey v. American Air Filter Col, Inc., 772 F.2d 1303, 1313 (7th Cir. 1985)). A
court may find that there is not enough evidence to support a jury’s damages award “[o]nly if [it
is] convinced, after looking at all of the evidence in the record, that there was not enough to
support the jury’s verdict.” Smart Marketing Grp., Inc. v. Publications Int’l Ltd., 624 F.3d 824,
829 (7th Cir. 2010). Further, in analyzing an award for compensatory damages, “it is important to
bear in mind that our legal system confers on juries the function of placing a value on pain and
suffering, both emotional and physical. Judges do not inherently possess more wisdom than jurors
in performing this function . . . .” Deloughery v. City of Chicago, No. 02 C 2722, 2004 WL
1125897, at *3 (N.D. Ill. May 20, 2004). In reviewing a compensatory damages award, a court
considers three factors: “whether the award is ‘monstrously excessive’; whether there is no
rational connection between the award and the evidence, indicating that it is merely a product of
the jury’s fevered imaginings or personal vendettas; and whether the award is roughly comparable
to awards made in similar cases.” U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276,
1285 (7th Cir. 1995). The Supreme Court has indicated that a compensable injury in a hostile
2
Davis and Wilson Plaintiffs argue that the proper vehicle for challenging a jury’s damages award is not a
Rule 50(b) motion for judgment as a matter of law. Specifically, they contend that because Packer did not
challenge the jury’s verdict as excessive in its pre-verdict Rule 50(a) motion, and thus the issue was not
preserved for its Rule 50(b) motion post-verdict. This is incorrect. Packer argued in its Rule 50(a) motion
that Davis had not put forward evidence to support a claim for compensatory damages (Dkt. No. 237) and
thus preserved its argument for the present a Rule 50(b) motion. See, e.g., Smart Marketing Grp., Inc. v.
Publications Int’l Ltd., 624 F.3d 824, 829, 832 (7th Cir. 2010).
9
work environment claim need not rise to the level of affecting the psychological well-being of the
victim, but there must be some proof of mental distress. Harris v. Forklift Systems, Inc., 510 U.S.
17 (1993).
Regarding the conduct that occurred within the statutory time period, Davis testified that
she was “disgusted,” “saddened,” and “angry” that she had to remind Packer leadership that they
could not target female leadership for layoffs. (R. 1015.) She testified that she believes “cunt” is
the most offensive word in the English language, and that hearing it regularly at work made her
feel physically “sick;” “dirty, degraded, and worthless;” and “very distracted” and “less inspired”
to work. (R. 1016. 1018, 1020.) When Caulfield told her that her “only place was to be home
barefoot and pregnant,” it made her feel “horrible” and “hurt” both because she was a woman and
because Caulfield was aware that she had to undergo a procedure that left her unable to have
children. (R. 1054.) She further testified that she was “upset” when she organized a sexual
harassment training that was not fully attended and that was not taken seriously. (R. 1072.). Given
the evidentiary record, there is a rational connection between the award and the evidence. Further,
given that Davis’s compensatory damages were already reduced post-trial from $150,000 to
$50,000 pursuant to Title VII’s damages cap, the Court declines to find that the reduced award
was monstrously excessive such that it should be further reduced. Finally, the award is roughly
comparable to awards made in similar cases. See, e.g., David v. Caterpillar, Inc., 324 F.3d 851,
364 (7th Cir. 2003) (in Title VII case, finding $50,000 in compensatory damages appropriate for
depression, anxiety, and stress); Fulmore v. M&M Transp. Servs., Inc., No. 11-cv-00389-TSP,
2014 WL 1691340, at *14‒15 (S.D. Ind. Apr. 29, 2014) (in a Title VII case, finding $50,000 in
compensatory damages appropriate for emotional injury where the plaintiff testified to feeling
uncomfortable, angry, embarrassed, and sad).
10
B.
Plaintiff Wilson
Packer also raises several arguments why Wilson failed to present sufficient evidence to
support her hostile work environment claim. First, Packer contends that the evidence established
that a reasonable person in Wilson’s position would not have found the work environment to be
hostile because Wilson did not know for sure that Packer employee John McKinney was watching
pornography and masturbating in his office. Similarly, Packer claims that the evidence showed
that Wilson did not believe that the conduct made her work environment hostile because she was
able to perform her job with high reviews and enjoyed working at Packer. Next, Packer argues
that Wilson failed to prove that the conduct was directed at her because of her sex because women
and men at Packer were subjected to the same environment. Packer also contends that the
evidence failed to establish that Packer knew or should have known about the conduct and failed
to take reasonable steps because when Packer received Wilson’s EEOC charge, it retained outside
counsel and conducted an investigation, took action to move McKinney’s office, issued him a
warning letter, required him to attend counseling, and monitored his activities. Finally, Packer
argues that the jury’s compensatory damages award for Wilson’s emotional distress was improper
because the evidence showed that Wilson was laughing in the videos that she recorded of
McKinney’s conduct and that she was treated for emotional issues prior to ever viewing
McKinney in his office.
Again, the Court addresses each argument in turn. First, the evidence supports the jury’s
finding that a reasonable person in Wilson’s position would have found her work environment to
be hostile. While Packer argues that the evidence showed that McKinney was not actually
watching pornography or masturbating, the jury was entitled to weigh the conflicting evidence,
make credibility determinations, and find that Wilson’s claim was supported. For example,
11
Wilson testified that she had “no doubt that he was actually masturbating” and that she saw him
masturbating from two to ten times nearly every day. (R. 679, 854.) Moreover, a male employee
who had an office near McKinney also testified that he heard McKinney watching pornography,
that he was disturbed by it, and that it was happening so much that he could not do his work. (R.
680, 711.) Another male employee also testified that he heard and saw what he thought was
McKinney watching pornography and masturbating and he was offended by what he saw. (R. 446,
559.) Additionally, the jury was able to view videos and photographs of what Wilson observed
and make a determination for themselves.
The record also supports the jury’s finding that Wilson believed that the conduct made her
work environment hostile. For example, she testified that she was offended by what she heard and
saw and would sometimes leave her desk to go to the filing room to get away from it. (R.
678‒79.) She also testified that she reported the issue to Packer leadership, confronted McKinney
and asked him to stop, and ultimately filed a charge of discrimination with the EEOC. (R. 705‒07,
710‒11, 722.)
In addition, as discussed with respect to Davis, the jury was entitled to find that the alleged
conduct occurred because Wilson was female. That male and female employees were equally
subject to viewing McKinney’s conduct and hearing the sounds of pornography emanating from
his office does not preclude the jury from making such a finding. This is particularly so given that
the jury heard evidence that the audio from the pornography—which infiltrated Wilson’s work
space—regularly included gender-based language such as “who’s your bitch?” (R. 676, 679, 708,
682.) See Passananti, 689 F.3d at 664 (“The jury could reasonably treat the frequent and hostile
use of the word ‘bitch’ to be a gender-based epithet that contributed to a sexually hostile work
environment.”) Put another away, the jury was entitled to find that a male co-worker masturbating
12
to pornography that included anti-female language was particularly degrading to women and
therefore met the “based on sex” requirement of the hostile work environment framework; “[s]uch
workplace disparagement of women . . . stands as a serious impediment to any woman's efforts to
deal professionally with her male colleagues.” Petrosino, 385 F.3d at 223; Reeves, 594 F.3d at
811; Ocheltree, 335 F.3d at 332; Harris, 429 Fed. Appx. at 198, 201.
The record also supports the jury’s finding that Packer knew or should have known about
the conduct and yet did not take reasonable steps to correct the situation or prevent its recurrence.
While Packer’s argument that it took reasonable steps focuses on its conduct after it received
Wilson’s EEOC complaint, the record supports a finding that Wilson and others reported the
pornography issues to executives at Packer starting over six months before the EEOC complaint
and Packer did not take any steps to address the situation. (R. 377, 389, 390‒91, 394‒95, 406,
710‒11, 1045‒6.). See, e.g., May, 716 F.3d at 972 (“[T]he jury was presented with more than
enough evidence to conclude that [defendant ] had not done enough. [Defendant], of course,
characterizes its efforts differently . . . . But the jury certainly did not have to believe that
[defendant’s] efforts . . . were ‘adequate’ or, even if it thought [the] efforts were adequate, that
they started ‘promptly’ enough for [defendant] to avoid liability.”).
Finally, the record supports the jury’s award of compensatory damages for emotional
distress. Wilson testified that when she first heard the pornography and saw McKinney
masturbating, her colleague had to take her into a nearby office and make sure she was okay and
tell her to calm down. (R. 677.) The word “bitch” coming from the pornography offended her. (R.
678.) Sometimes she would leave hear desk and go into the filing room to get away from what she
was hearing and seeing. (R. 679.) When she went to her direct supervisor, who was also on
Packer’s executive committee, to discuss what was happening and ask him to take action, she was
13
“hurt” and “angry” when he did nothing. (R. 681, 705.) Wilson further testified that she “had
some anxiety” leading up to approaching McKinney directly about his conduct and asking him to
stop, and she was worried about losing her job or “something go[ing] wrong. (R. 705.) After she
talked to him, she was “embarrassed” and avoided her desk because she “didn’t want him to look
at me. I didn’t want him slamming things. I didn’t know if he was going to do a temper—I didn’t
know.” (R. 707, 708.) She also testified that she thought it was “very disgusting to know
somebody intimately, when you’ve never been with them intimately.” (R. 708.) Wilson further
testified that after she reported to the EEOC and had to go back to work she had anxiety, felt
nervous, and was not sleeping. (R. 725.) She again worried about McKinney’s “temper tantrums .
. . because if I’m sitting in that space and it gets out of control, what about that?” (R. 725.) She
had to tell her daughter and mother what happened because she supported both of them and
worried about losing her job, and this made her feel “dirty, [] ashamed . . . I had to go to this man,
[had] to tell my daughter this stuff, [had ] to tell my mom this stuff.” (R. 726‒27.) She further
testified that she spoke to her therapist about her distress, that she was having panic attacks at
night, and that the therapist gave her sleeping pills. (R. 727‒28.) Given the evidentiary record,
there is a rational connection between the award and the evidence. The jury was entitled to find
that Wilson’s emotional issues stemmed from her experience at Packer rather than other factors
like financial and relationship issues. Further, given that Wilson’s compensatory damages have
already been reduced post-trial from $300,000 to $50,000 pursuant to Title VII’s damages cap, the
Court declines to find that the reduced award was monstrously excessive such that it should be
further reduced. Finally, as discussed in connection with the compensatory damages award to
Davis, the award to Wilson is roughly comparable to awards made in similar cases.
*
*
14
*
In sum, because the Court finds that the jury had a legally sufficient evidentiary basis to
find for both Davis and Wilson on their hostile work environment claims, Packer’s motions for
judgment as a matter of law are denied.
II.
Motion for a New Trial
In the alternative to judgment as a matter of law, Packer also moves for a new trial
pursuant to Federal Rule of Civil Procedure 59(e). A federal court should grant a new trial under
Rule 59(e) only “if the verdict is against the clear weight of the evidence, the damages are
excessive or the trial was unfair to the moving party.” Miskis v. Howard, 106 F.3d 754, 757 (7th
Cir. 1997). Packer seeks a new trial on all three grounds. The decision whether to grant a new trial
lies within the sound discretion of the trial court. Id.
A.
Manifest Weight of the Evidence
Packer first argues that it is entitled to a new trial because the evidence shows that no
rational jury could have rendered verdicts in Davis’s and Wilson’s favors on their hostile work
environment claims. In support, Packer refers the Court to its arguments set forth in its motions
for judgment as a matter of law.
A court may set aside a verdict as against the manifest weight of the evidence “only if no
rational jury could have rendered the verdict. The . . . court must view the evidence in the light
most favorable to the prevailing party, leaving issues of credibility and weight of the evidence to
the jury.” Lewis v. City of Chicago Police Dep’t, 590 F.3d 427, 444‒45 (7th Cir. 2009). When
ruling on a motion to grant a new trial based on sufficiency of the evidence, a court must be
“particularly careful in employment discrimination cases to avoid supplanting [its] view of the
credibility of the evidence for that of . . . the jury.” Riemer v. Ill. Dept’t of Transp., 148 F.3d 800,
806 (7th Cir. 1998). Put another way, the court’s analysis is “limited to determining whether the
15
evidence presented, combined with all reasonable inferences that may be drawn from it, is
sufficient to support the verdict when viewed in the light most favorable to the plaintiff.”
Hutchinson v. Amateur Electronic Supply, Inc., 42 F.3d 1037, 1042 (7th Cir. 1994) (internal
quotations and citation omitted).
Given this standard, Packer is not entitled to a new trial on this basis. As discussed in
detail in relation to Packer’s motions for judgment as a matter of law, a rational jury could have
rendered verdicts in Davis’s and Wilson’s favors on their hostile work environment claims. The
Court thus denies Packer’s motion for a new trial on this ground.
B.
Evidentiary Errors
Packer next argues that certain evidentiary rulings and jury instructions were erroneous
and prejudicial, warranting a new trial. When a Rule 59 motion alleges judicial errors in admitting
or rejecting evidence, the Court considers the motion in conjunction with Federal Rule of Civil
Procedure 61. See Moore v. Metro Water Reclamation Dist. of Greater Chicago, No. 02 C 4040,
2005 WL 2007291, at *4 (N.D. Ill. Aug. 12, 2005). Rule 61 provides that “[u]nless justice
requires otherwise, no error in admitting or excluding evidence—or any other error by the court or
a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying,
or otherwise disturbing a judgment.” Fed. R. Civ. P. 61; see also Young v. James Green Mgmt.,
Inc., 327 F.3d 616, 621 (7th Cir. 2003) (error is harmless unless it had a “substantial and injurious
effect or influence on the jury’s verdict”); McDonough Power Equip., Inc. v Greenwood, 464 U.S.
548, 553 (1984) (“[A party] is entitled to a fair trial, but not a perfect one.”) The Court will
consider each alleged error identified by Packer in turn.
16
1.
Denial of Packer’s Motion to Sever
Packer contends that the Court’s denial of Packer’s motion to sever the three Plaintiffs’
claims for trial was in error because the claims had no similarities other than that Plaintiffs all
worked in the same office. Specifically, Plaintiffs were hired at different times, employed in
different positions, and allege misconduct by different individuals over a period of more than ten
years.
Packer raised this argument in a pre-trial motion to sever and the Court issued a written
ruling denying the motion. (Dkt. No. 140.) As discussed in detail in that opinion, Federal Rule of
Civil Procedure 20 allows plaintiffs to join in one action if they assert claims “arising out of the
same transaction, occurrence or series of transactions or occurrences” and “any question of law or
fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a). “Federal policy favors
joinder, as the purpose of Rule 20 is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits.” Smith v. Ne. Ill. Univ., No. 98 C
3555, 2002 WL 377725, at *1 (N.D. Ill. Feb. 28, 2002) (internal quotation omitted). In
determining whether discrimination claims arise out of the “same transaction, occurrence, or
series of transactions or occurrences,” courts consider several factors, including: the time period
of the alleged acts; whether the alleged acts are related; whether there were differing types of
adverse employment actions; whether more than one type of discrimination is alleged; whether
the same supervisors were involved; whether employees were at the same geographical locations;
and whether a company-wide policy is alleged. Id. at *2.
Here, the evidence put forward by each of the three Plaintiffs painted a picture of a
sexually-charged workplace permeated with harassment and hostility toward women during
overlapping time periods reaching back to 2002 and continuing to early 2010. Moreover,
17
Plaintiffs all testified about a company-wide practice of condoning the workplace culture and
failing to respond to complaints. Specifically, all three Plaintiffs testified regarding reporting
incidents of discrimination to the same group of Packer executives—including Sartain, Dr.
Packer, Koehler, and Moore—and having their complaints ignored by these executives. Finally,
while none of the Plaintiffs succeeded on his or her retaliation claim, all three Plaintiffs claimed
that they were ultimately terminated in retaliation for reporting the gender discrimination, sexual
harassment, or a hostile work environment. The Court therefore held that there were questions of
law and fact common to all three Plaintiffs and that consideration of the expense, inconvenience,
time, and overlap of evidence and witnesses that would result from bifurcating the trials
outweighed any risk of jury confusion or prejudice. The Court stands by this ruling and finds that
there was no error.
2.
Evidence of Rio Bravo Incident
Packer next suggests that the Court erred by allowing evidence regarding an event outside
the statutory period to support Davis’s hostile work environment claim—specifically, testimony
that at a Packer holiday party in 2002, Caulfield grabbed Davis’s head from behind, pushed it in
his lap, and told her to give him a blow job. The Court previously denied Packer’s motion in
limine to exclude this evidence, reasoning that even though the incident was not within the
statutory period, it may provide useful background information and context for Davis’s non-timebarred sexual harassment claims. (Dkt. No. 174.) As the Court noted in that order and above in its
discussion of Packer’s motions for judgment as a matter of law, a plaintiff may introduce
evidence of an act outside the statutory time period for the purposes of establishing a hostile work
environment if the act contributed to the claim that occurred within the statutory period. See, e.g.,
Morgan, 536 U.S. at 117 (“Provided that an act contributing to the claim occurs within the filing
18
period, the entire time period of the hostile environment may be considered by a court for
purposes of determining liability.”); Moore, 2004 WL 2958769, at *3 (“[A] reasonable jury could
conclude that the conduct during the limitations period merely extended the same hostile work
environment that began in the pre-limitations period.”) (internal quotations omitted).
Packer further argues—citing only case law from other circuits—that it is well-established
that conduct away from the workplace or outside business hours is not relevant to a hostile work
environment claim. Packer never raised this issue in its motion in limine seeking to bar testimony
on this incident (see Dkt. No. 143 at 7), and the argument is therefore waived. See Stephens v.
Miller, 13 F.3d 998, 1008 n. 5 (7th Cir. 1994) (“An evidentiary rationale not raised before the trial
judge at the time of ruling is waived.”); Niebur v. Town of Cicero, 212 F. Supp.2d 790, 803 (N.D.
Ill. 2002) (objection waived unless specific grounds for objection are made at the time of ruling).
For these reasons, the Court stands by its previous ruling and finds no error in admitting
the evidence.
3.
Time-Barred Remarks about Other Employees
Packer asserts that the Court erred by allowing testimony from Davis about comments
made by Caulfield and other male colleagues about their female assistants—including testimony
that she heard that Caulfield called his assistant a “cunt”—despite the fact that Davis was not
present, and the comments were not directed to her, and were outside the limitations period. The
Court previously denied Packer’s motion in limine seeking to exclude this evidence, reasoning
that evidence of sexually-explicit remarks made to other employees is relevant in demonstrating
the existence of a hostile work environment. (Dkt. No. 174 at 6.) See, e.g., Gleason, 118 F.3d at
1144 (7th Cir. 1997) (holding that incidents directed at others not the plaintiff are relevant in
demonstrating the existence of a hostile work environment); Molnar, 229 F.3d at 603 (7th Cir.
19
2000) (holding that evidence of sexual harassment of others was relevant to show the likelihood
that plaintiff was harassed). The Court stands by its previous ruling and finds no error in admitting
the evidence.
4.
Webb’s Hostile Work Environment Claim
Packer also contends that the Court erred by excluding evidence that Webb, a male
employee, initially brought a hostile work environment claim that he voluntarily dismissed prior
to trial. Packer argues that this evidence was relevant to show that the hostile work environment
alleged by Davis and Wilson was not gender-based and thus not actionable.
During trial, the Court sustained Plaintiffs’ counsel’s objection to testimony that Webb
filed a hostile work environment claim based on sex discrimination on the basis that it was
irrelevant, could confuse the jury, and there are many reasons a plaintiff may voluntarily
withdraw claims. (R. 627.) In response to defense counsel’s argument that it was relevant for the
jury to hear that a male made the same hostile work environment claim, the Court indicated that it
would allow defense counsel to question Webb on whether he believed he was discriminated
against on the basis of sex without raising the fact of his dismissed claim. (R.627‒28.) Thus,
contrary to Packer’s suggestions, the jury heard testimony from Webb indicating that he was
subjected to the same environment as Wilson and Davis. The jury could have determined that the
hostile work environments alleged by Wilson and Davis were not based on their gender, since
male and female employees were subjected to the same environment. That the jury did not so
decide was not error.
The Court adheres to its previous ruling that the fact of Webb’s voluntarily dismissed
hostile work environment claim was irrelevant and potentially confusing, and thus inadmissible.
Accordingly, the Court finds that no error occurred.
20
5.
Caulfield’s “Jurors” Comment
Packer contends that the Court allowed—over Packer’s objection—testimony from Davis
that Caulfield told her juries were made up of “stupid bitches,” and that this evidence was
admitted in error because it was prejudicial. The Court heard Packer’s objection to the testimony
on the record and overruled it then (R. 83‒86), and the Court stands by that ruling. Contrary to
Packer’s suggestion, Davis’s testimony was not regarding a comment by Caulfield about juries
generally but rather related to a particular instance where Caulfield called Davis a “stupid bitch.”
Specifically, Davis testified that Caulfield asked her if she was able to get out of jury duty, and
when she replied that she had not, he called her a stupid bitch and explained that juries are mostly
made up of women “because women are stupid bitches.” (Id., R. 1073.) The testimony was
therefore relevant to Davis’s claim that she was subjected to a hostile work environment in part
because Caulfield used the word “bitch” to refer to her and other female employees. (R. 83‒86.)
Because the relevance of this testimony outweighed any prejudicial effect, the Court finds no
error in allowing the testimony.
6.
Evidence of Alleged Misconduct With No Allegation Plaintiffs Knew of
Misconduct During Employment
Packer suggests that it was prejudiced by Plaintiffs’ introduction of evidence of alleged
misconduct with no showing that Plaintiffs were aware of the conduct while they were employed
at Packer. Specifically, Packer points to evidence of an incident when Packer employee Kristin
Federline fell down a flight of stairs and an incident involving a Packer employee making female
body parts out of metal. With respect to the first incident, on cross examination, Plaintiffs’
counsel asked Sartain whether she remembered anything about Federline falling down the stairs.
(R. 1822.) The witness replied that she did not, and the questioning moved to a new topic. (Id.)
Packer did not object to the questioning. (Id.)
21
As to the second incident, Plaintiffs’ counsel questioned Sartain on cross examination
about Defense Exhibit 22, which included investigative notes from the EEOC regarding Wilson’s
EEOC complaint. (R. 1802, 1806‒07, 1827.) Sartain testified that Packer received the notes from
the EEOC and she used the notes to understand what had been alleged about the company. (R.
1807‒08.) Plaintiffs’ counsel questioned Sartain on a portion of the notes indicating that an
employee at Packer suggested that McKinney had shaped 10 to 15 pieces of metal into a female
body part, and Sartain testified that she did not investigate that conduct when she received the
notes. (R. 1830‒32.) In closing argument, Plaintiffs’ counsel argued to the jury that, in
considering whether they heard evidence constituting a hostile work environment based on
gender, to keep in mind that “[y]ou didn’t hear about . . . metal objects put together in the form of
penises. You heard about them in the form of female genitalia.” (R. 2404.) Defense counsel did
not object to the cross examination or the closing argument. (R. 1830‒32, 2404.)
With respect to both incidents, Packer waived its argument that the Court erred in allowing
the testimony because Packer failed to object when the testimony was given—on the grounds
asserted here or any other. Regardless, the Court disagrees that the evidence should have been
excluded on the grounds that Packer asserts because—as discussed above—evidence of
harassment not directed to a plaintiff is relevant to a jury’s consideration of whether the evidence
was sufficient to show a hostile work environment given the totality of circumstances. The Court
therefore finds no error in allowing the testimony or argument.
7.
Hearsay Statements
Packer asserts that it was error for the Court not to exclude on hearsay grounds: Davis’s
testimony that she heard Caulfield call other female Packer employees “cunts” or “bitches;”
Sartain’s testimony that Caulfield used the word “cunt;” and Sartain’s testimony that Caulfield
22
stated that a female employee was going on a vacation with her ex-husband to “grudge fuck him.”
Contrary to Packer’s argument, Packer did not object to Davis’s testimony on hearsay or any
other grounds. (R. 1018‒23.) Packer objected to Sartain’s testimony about Caulfield’s use of the
word “cunt” only on foundation grounds and did not object to the “grudge fuck” testimony at all.
(R. 171‒72, 178‒79.) In any event, these instances were not hearsay because they were not
offered for the truth of the matter asserted. Moreover, the Court instructed the jury that the
testimony from Sartain was being offered to establish whether Sartain or Packer management was
aware of allegations of Caulfield using the word “cunt,” and the jury should consider the
testimony for that purpose only. (R. 172.)
Packer also argues that it was an error for the Court to allow former Packer employee
Edna Davis to testify that Sartain told her that Sartain had a discussion with Caulfield to address
his behavior, and he responded “fuck you” and asked “would you rather I say screw you?” (R.
469.) The Court addressed defense counsel’s hearsay objection on the record and held that
Caulfield and Sartain’s statements fell under the hearsay objection for statements of party
opponents. (R. 468.) Packer argues that the Court’s ruling was erroneous because Caulfield and
Sartain were not parties in the case and were not employed by Packer at the time of trial. The
Court disagrees.
Federal Rule of Evidence 801(a)(2)(D) excludes from the rule against hearsay statements
offered against an opposing party “by the party’s agent or employee on a matter within the scope
of that relationship and while it existed.” Fed. R. Evid. 801(a)(2)(D). Testimony from Sartain
established that she was an executive of Packer and had authority to address sexual harassment
related issues.3 At the time of the conversation between Edna Davis and Sartain and the
3
Sartain also served as Packer’s corporate representative at Federal Rule of Civil Procedure 30(b)(6)
deposition and at trial.
23
conversation between Sartain and Caulfield, Sartain was operating in this capacity. Her statement
to Edna Davis therefore falls under the hearsay exception. Finally, Caulfield’s statement to Sartain
was not hearsay within hearsay because it was not offered for the truth of the matter asserted.
Packer also contends that the Court erred by overruling Packer’s hearsay objection to
Wilson’s testimony about former Packer employee Jackie Waters’s statement in response to
Wilson’s description of her sexual harassment claim. Specifically, Wilson testified that after
Packer received Wilson’s EEOC charge, Sartain called Wilson into her office to meet with Sartain
and Waters. (R. 840.) Sartain handed Waters a notepad and instructed her to take notes, and then
asked Wilson to explain her EEOC claim. (Id.) Wilson testified that when Sartain asked how long
the conduct had been occurring and Wilson answered, Waters slammed the notepad down on the
desk and said “[i]t’s been going on too damn long, Charlotte, and something needs to happen.”4
(R. 841.) The Court overruled Packer’s hearsay objection at the time, and later went back to
clarify that while the statement did not qualify as a present-sense impression under Federal Rule
of Evidence 803(1) (as Plaintiffs’ counsel argued), it did qualify as an excited utterance under
Federal Rule of Evidence 803(2) and that, in any event, the statement was not hearsay because it
went to the issues of the notice to and the effect on the listener. (R. 889‒90.) Packer now cites a
Ninth Circuit case to argue that the Court’s ruling was in error because when a statement is
offered under the excited utterance exception, a court must make a preliminary factual
determination that the declarant was so excited or distraught that she did not have the opportunity
to reflect on what she was saying. See United States v. McLennan, 563 F.2d 943, 948 (9th Cir.
1977).
4
Waters testified at trial, as a witness for Packer, that she did not remember the meeting about Wilson’s
allegations that included Waters, Wilson, and Sartain. (R. 1433, 1437.)
24
The Court is not persuaded that the Court’s ruling was error. Most critically, as the Court
noted on the record, the out-of-court statement appears to have been offered not for the truth of
the matter asserted, but rather for its notice to and effect on Sartain5 and to show Waters’s
reaction to Wilson’s allegations. (R. 889.) Moreover, with respect to the excited utterance
exception, the Ninth Circuit in McLennan did not hold that the trial court committed error by
failing to make a preliminary factual determination supporting an excited utterance exception
explicitly on the record. McLennan, 563 F.2d at 948. Rather, the McLennan court simply noted
that the trial judge had not made such a determination on the record, and that the trial record was
not sufficient for the Ninth Circuit to make such a determination. Id. Further, the Seventh Circuit
has made clear that “[c]ourts need not make a specific finding that the declarant was entirely
incapable of deliberative thought at the time. All that the exception requires is that the statement
be made contemporaneously with the excitement resulting from the event.” Martinez v.
McCaughtry, 951 F.2d 130, 135 (7th Cir. 1991). As was clear from the testimony, Waters’
statement was made contemporaneously with her discovery of how long the conduct that Wilson
alleged had been occurring. (R. 840‒41.) Wilson’s testimony about Waters’s reaction, including
her slamming of the notebook, made clear that Waters made her statement under the stress of the
excitement caused by this discovery. See, e.g., U.S. v. Zuniga, 767 F.3d 712, 716 (7th Cir. 2014)
(“For an out of court statement to qualify under the excited utterance exception: (1) a startling
event must have occurred; (2) the declarant must make the statement under the stress of the
excitement caused by the startling event; and (3) the declarant’s statement relates to the startling
event.”). For these reasons, the Court finds that there was no error in allowing the testimony.
5
As discussed above, evidence established that Sartain was a Packer executive with authority to address
sexual harassment complaints. In addition, Sartain also served as Packer’s corporate representative at the
Rule 30(b)(6) deposition and at trial.
25
8.
Reputation Evidence
Packer argues that the Court improperly allowed reputation evidence, particularly
evidence that Sartain characterized Caulfield as a “male chauvinist,” (R. 169), in violation of
Federal Rule of Evidence 404. Specifically, during direct examination of Sartain, Plaintiffs’
counsel asked Sartain about her deposition testimony where she was asked if Caulfield was a
“male chauvinist” and she said that he was. (R. 169.) Packers’ counsel did not object to the
questioning on Rule 404 grounds6 (Id.) Packer thus waived its instant argument. See Stephens, 13
F.3d at 1008 n.5. In any event, given the context of Plaintiffs’ counsel’s questions, in context it
appears that the testimony was elicited not to prove that on a particular occasion Caulfield acted
in accordance with this trait, but rather to establish Sartain’s knowledge of the hostile work
environment in part created by Caulfield. Further, when asked at trial, Sartain denied that she
meant to suggest that Caulfield treated women in a particular way, but instead explained that she
meant that, “Ed was a very strong, dynamic man. He knew his engineering, if you will.” (R. 169.)
When asked what “male chauvinist” meant to her, she replied that she would consider Plaintiffs’
counsel or Defendant’s counsel a male chauvinist because “You’re very good at what you do, you
understand what you do, you take charge. . . . [Y]ou’re dynamic in what you do. Good at what
you do.” (R. 169.) For these reasons, the Court finds that there was no error or prejudice in
admitting the testimony.
9.
Jury Instructions
Packer contends that the Court’s inclusion of certain jury instructions and its refusal to
include others was prejudicial error. A court considering a challenge to jury instructions reviews
the instructions as a whole to determine if they adequately informed the jury of the applicable law.
6
Packer filed a motion in limine to exclude this testimony on hearsay grounds, which the Court denied.
(Dkt. No. 174 at 9‒10.)
26
Phoenix Bond & Indem. Co. v. Bridge, 911 F. Supp. 2d 661, 677 (N.D. Ill. 2012). The court
examines whether the instructions, taken as a whole, misstated or failed to fully state the law; if
so, the court must then determine whether the instructions confused or misled the jury, thereby
causing prejudice. Id. (citing Aldridge v. Forest River, Inc., 635 F.3d 870, 876 (7th Cir. 2011);
Van Bumble v. Wal-Mart Stores, Inc., 407 F.3d 823, 825‒26 (7th Cir. 2005)).
a.
Testimony of Witnesses
Packer asserts that the addition to Seventh Circuit Pattern Instruction 1.13 (Testimony of
Witnesses) of “whether a witness spoke to others about their testimony before the witness
testified” to the list of factors that jurors may consider in evaluating testimony was improper and
prejudicial. The Court heard Packer’s objection to the addition during the parties’ jury instruction
conference and provided its reasons for including the instruction. (R. 2172‒73.) As noted on the
record at that time, the instruction was helpful for the jury because defense witness Waters had
testified that she traveled to Chicago for the trial with two other Packer witnesses in a carpool
arranged by defense counsel, and the witnesses discussed what their testifying “roles” were. (R.
1436.) As the Court indicated, the instruction was not prejudicial to Packer because it did not
suggest to the jurors one way or the other about the propriety of witnesses speaking to each other
about their testimony. (R. 273.) The Court therefore stands by its ruling that this addition was
proper and, at the very least, was not a misstatement of the law.
b.
Hostile Work Environment: Harassment by Co-Employees
Packer suggests that the modification to Seventh Circuit Pattern Instruction 3.04
(Harassment by Co-Employees) to include the statement that “[a] hostile work environment may
be manifested through behavior that is not overtly sexual in nature but reflects anti-female
animus” was improper because it was not a complete or accurate statement of the law. The Court
27
considered and responded to Packer’s objection on the record, and provided its reasoning for
including the additional instruction. (R. 2353‒56.) The Court adheres to its previous ruling—
specifically, this instruction is an accurate statement of Seventh Circuit precedent and reflects the
fact that there could be confusion based on the term “sexual harassment” as to whether the
harassment needs to be based on sexual desire or conduct as opposed to gender. (R. 2353.) See,
e.g., Passananti, 689 F.3d at 664; Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th
Cir. 2007).
c.
Punitive Damages
Packer argues that the modification to Seventh Circuit Pattern Instruction 3.13 (Punitive
Damages) to include the statement that the jury could consider “the effect that an award of
punitive damages may have on warning others not to engage in conduct similar to Defendant” was
not an accurate statement of the law and was prejudicial. The Court heard Packer’s objection and
responded to it on the record at the parties’ jury instruction conference. (R. 2222‒25.)
Specifically, the Court explained that the pattern instruction does in fact state that the purpose of
punitive damages is to “serve as an example or warning to defendant and others not to engage in
similar conduct in the future.” (R. 2232; see Seventh Circuit Pattern Instruction 3.13.) The Court
therefore finds that inclusion of this instruction was proper.
d.
Packer’s Proposed Instructions
Packer next contends that the Court erred by declining to give various additional
instructions proposed by Packer relating to requirements for finding a hostile work environment,
and that this error misled the jury. As the Court discussed at length on the record, Defendants’
proposed instructions were unnecessary and duplicative of the comprehensive pattern instruction.
(R. 2205, 2234‒36, 2242‒48.) The Court was not required to accept as a jury instruction every
28
favorable sound-bite that Packer identified in its combing through of case law where work
environments were found to be not sufficiently hostile. That Packer’s offered instructions may
have been correct statements taken from those cases did not mandate that the instructions be
given, as “‘a judge need not deliver instructions describing all valid legal principles.’” E.E.O.C. v.
AutoZone, Inc., 809 F.3d 916, 923 (7th Cir. 2016) (quoting Gehring v. Case Corp., 43 F.3d 340,
343 (7th Cir. 1994)).The Court therefore finds that declining to include these additional
instructions was not error.
10.
Packer’s Special Verdict Form
Packer also argues that the Court erred by declining to use the special verdict form
submitted by Packer because the case involved multiple claims or complex issues and because
special verdicts are commonly used in hostile work environment cases. The Court considered and
responded to Packer’s request for a special verdict form on the record and discussed why a special
verdict form was unnecessary. (R. 2249‒51.) The Court had broad discretion under Federal Rule
of Civil Procedure 49 to decide whether to utilize a special verdict form and properly determined
that such a form was unnecessary in this case. The Court adheres to its previous ruling to reject
the special verdict form. As discussed on the record, the law disfavors special verdict forms, and
anything more granular than asking the jury to give fair and separate treatment to each Plaintiff
and each claim tends to invade the province of the jury. (R. 2249‒51.)
11.
Closing Argument
Packer contends that Plaintiffs’ counsel made remarks during closing argument that were
unwarranted and clearly injurious, requiring a new trial. Specifically, Packer points to Plaintiffs’
counsel’s statements that: (1) Wilson had rejected a $150,000 settlement offer from Packer
(evidence of which had not been presented at trial); and (2) Packer had refused to produce
29
financial records. (R. 2458‒59, 2465‒66.) Packer objected to counsel’s statement regarding the
settlement offer at the time, and the Court reminded the jury that it should consider only the
evidence presented through witness testimony and exhibits offered into evidence; that the
arguments of the lawyers were not evidence; and that if there was something in the lawyer’s
arguments that differed from the evidence, the jury should pay attention to the evidence that was
presented. (R. 2458‒59.) In response to defense counsel’s objection to the statement regarding
production of financial information, the Court gave a clarifying instruction (agreed to by defense
counsel) that as part of the stipulation entered into by the parties regarding the financial condition
of Packer, the parties agreed to limit the amount of testimony and evidence the jury would have to
hear on financial issues. (R. 2465‒66.) Thus, the Court finds that these statements in conjunction
with the clarifying instructions were not so prejudicial as to warrant a new trial.
12.
Photographs and Videotapes
Packer asserts that the Court improperly allowed Plaintiffs to introduce videos and
photographs that Wilson claimed depicted McKinney watching pornography and masturbating in
his office. Packer suggests that the admission of these materials was improper because Packer had
a policy prohibiting employees to record or photograph other employees without their consent.
The Court addressed this argument pre-trial in response to Packer’s objections to Plaintiffs’
proposed exhibits, and the Court then determined that the photographs and videotapes were
relevant and therefore admissible regardless of whether they violated policy. (Dkt. No. 174.) The
Court adheres to this ruling.
Packer also argues that the Court should have excluded the videos and photographs
because they were taken illegally in violation of the Illinois eavesdropping statute. Packer
previously made this argument in a motion in limine seeking to exclude the materials, and the
30
Court addressed the argument in its decision denying the motion. (Dkt. No. 174 at p. 8.) In its
instant motion, Packer again fails to point to any authority suggesting that—if the evidence were
indeed obtained illegally—the correct remedy in a civil case would be to exclude the evidence.
Moreover, as discussed in the Court’s initial ruling, there has been no determination that this
evidence was actually procured illegally. Packer provides no argument as to why the photos and
videos violate the Illinois eavesdropping statute. For example, Packer does not suggest how
sounds emanating from pornography and alleged masturbation in a public office qualify as an
“oral communication between two or more persons . . . intended to be of a private nature under
circumstances reasonably justifying that expectation” as required to qualify as a “private
conversation” capable of being subject to eavesdropping under the statute. See 720 ILCS 5/141(d). The Court therefore adheres to its previous ruling and finds that there was no error in
allowing the evidence.
13.
Juror’s Question
Packer suggests that the Court’s response to a question from the jury was in error.
Specifically, during deliberation, the jury submitted a question to the Court stating: “Please define
‘conduct’ as stated in Item 2 and 3 in the hostile work environment [instruction]. Is conduct
limited to Bernessa Wilson’s direct observations or does it include Packer Engineering’s response
to her claim?” (R. 2486.) The Court discussed with the parties that items 2 and 3 in the jury
instructions were the elements that “the conduct was unwelcome” and “the conduct occurred
because plaintiff was female.” (R. 2488.) Defense counsel raised the objection that the Court’s
proposed answer that “conduct” includes the actions that contributed to the alleged hostile work
environment could be interpreted to include incidents that were not directed to Wilson and that
Wilson did not know about. (R. 2490.) As discussed on the record in response to Packer’s
31
objection and again here, supra, the law is clear that the existence of a hostile work environment
is determined by looking at the totality of the circumstances, and incidents directed at employees
other than a plaintiff are relevant in demonstrating the existence of a hostile work environment.
See, e.g., Gleason, 118 F.3d at 1144 (holding that incidents directed at others not the plaintiff are
relevant in demonstrating the existence of a hostile work environment); Molnar, 229 F.3d at 603
(holding that evidence of sexual harassment of others was relevant to show the likelihood that
plaintiff was harassed). The Court stands by its previous decision to overrule Packer’s objection
and therefore finds that no error was committed.
14.
Cumulative Error
Finally, Packer argues that even if the alleged errors were harmless when taken
individually, taken cumulatively the alleged errors were so severe that Packer was deprived of a
fair trial. To prevail on an argument that the cumulative effect of alleged evidentiary errors
warrants a new trial, the movant must show (1) that multiple errors occurred at trial; and (2) those
errors, in the context of the entire trial, “were so severe as to have rendered trial fundamentally
unfair.” Christmas v. City of Chicago, 682 F.3d 632, 643 (7th Cir. 2012). “In conducting this
analysis, [courts] examin[e] . . . the entire record, paying particular attention to the nature and
number of alleged errors committed; their interrelationship, if any, and their combined effect; how
the trial court dealt with the errors, including the efficacy of any remedial measures; and the
strength of the prosecution’s case.” Id.
With this standard in mind, and for the reasons discussed above, the Court finds that
Packer received a fair trial. The majority of the evidentiary errors alleged by Packer were not, in
fact, errors. In any event, any errors were harmless, both when considered individually and
32
cumulatively. Young, 327 F.3d at 621 (error is harmless unless it had a “substantial and injurious
effect or influence on the jury’s verdict”).
For all of these reasons, the Court therefore denies Packer’s motion for a new trial on the
basis of evidentiary errors.
C.
Damages
Packers also argues that a new trial is proper because the jury’s compensatory damages
awards for Davis and Wilson were excessive and bear no relationship to the evidence. The Court
addressed this argument at length in connection with Packer’s motions for judgment as a matter of
law and, for the reasons discussed above, the Court declines Packer’s request for a new trial on
this basis. Packer further contends that a new trial is proper because the jury’s award of punitive
damages was improper. However, as Plaintiffs point out in response, the jury’s punitive damages
award was reduced to zero in connection with the Court’s granting of Packer’s motion to reduce
the jury verdict. The Court therefore finds no controversy to resolve regarding punitive damages
and denies Packer’s motion on this basis as well.
CONCLUSION
For the foregoing reasons, Packer’s motions for judgment as a matter of law as to
Plaintiffs Wilson (Dkt. No. 238) and Davis (Dkt. No. 236) are denied. Packer’s motion for a new
trial as to Wilson and Davis (Dkt. No. 240) is also denied.
Dated: April 12, 2018
__________________________
Andrea R. Wood
United States District Judge
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?