Smith V. Rosebud Farmstand et al

Filing 293

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 9/9/2016. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT SMITH,
Plaintiff,
v.
ROSEBUD FARMSTAND, et al.,
Defendants.

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Case No. 11-cv-9147
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Smith sued Defendants Rosebud Farmstand, Carlos Castaneda, and
Roque Mendoza, alleging claims of sexual harassment in violation of Title VII, racial
discrimination in violation of 42 U.S.C. § 1981, retaliation in violation of Title VII and § 1981,
and gender violence in violation of the Illinois Gender Violence Act. On December 15, 2015, a
jury returned a verdict in favor of Plaintiff on all claims, awarding him a combined $2,407,500 in
compensatory and punitive damages. Now before the Court are Defendants’ motion for judgment
as a matter of law and renewed motion for judgment as a matter of law regarding Plaintiff’s
federal discrimination claims [237, 242], and Plaintiff’s motion for judgment as a matter of law
and renewed motion for judgment as a matter of law regarding Plaintiff’s Illinois Gender
Violence Act claims [238, 243]. For the reasons set forth below, Defendants’ motions [237, 238,
242, 243] are denied.
Following the jury trial on liability, the Court held a two-day bench trial on the issue of
equitable damages. Upon review of the parties’ presentations at trial and their post-trial briefing,
the Court awards Plaintiff $69,761.80 in back pay and $19,894.77 in prejudgment interest. All
other requested forms of equitable relief are denied.

Also before the Court are several motions that arose during post-trial briefing. Upon
review of the parties’ respective arguments, Defendants’ motion to supplement the Phase II
record [272] is granted, Defendants’ motion to amend their answer [274] is granted, and
Plaintiff’s motion to strike [288] is denied.
With these matters decided, final judgment will be entered in favor of Plaintiff. The
parties have until October 7, 2016 to file any Rule 59 motions, responses are due November 4,
2016, and replies are due November 18, 2016.
I.

Background
Defendant Rosebud Farmstand operates a grocery store on Chicago’s south side, and

Plaintiff Robert Smith worked as a butcher in Rosebud’s meat department from 2003 to 2008.1 In
2011, Plaintiff sued Rosebud Farmstand, alleging that Rosebud employees sexually harassed him
and discriminated against him on the basis of race throughout his employment. Plaintiff also
alleged that Rosebud employees retaliated against him for filing a complaint with the Equal
Employment Opportunity Commission (“EEOC”) and the Illinois Department of Human Rights
(“IDHR”), forcing him to quit his job. Plaintiff further alleged that Defendants Carlos Castaneda
and Roque Mendoza committed acts of gender violence against him. Plaintiff sought
compensatory and punitive damages for these alleged wrongs, as well as equitable relief in the
form of back pay, overtime pay, front pay, prejudgment interest, and tax compensation. The
Court bifurcated the trial such that Phase I would be a jury trial covering liability on all claims as
well as compensatory and punitive damages, and Phase II would be a bench trial covering
equitable relief.

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Plaintiff also worked at Rosebud Farmstand for a four-month period spanning from September 2, 2001,
until he voluntarily quit on January 12, 2002.

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In December 2015, Plaintiff went to trial on four claims: sexual harassment in violation
of Title VII against Defendant Rosebud Farmstand, racial discrimination in violation of
42 U.S.C. § 1981 against Defendant Rosebud Farmstand, retaliation in violation of Title VII and
§ 1981 against Defendant Rosebud Farmstand, and gender violence in violation of the Illinois
Gender Violence Act (“IGVA”) against Defendants Castaneda and Mendoza. The jury returned a
verdict in favor of Plaintiff on all counts, awarding a total of $2,407,500.00 in compensatory and
punitive damages, broken down as follows:

Sexual Harassment 
Racial Discrimination 
Retaliation 
IGVA Claim ‐ Castaneda 
IGVA Claim ‐ Mendoza 
Subtotals
Grand Total

Compensatory 
Punitive 
$250,000.00 
$500,000.00 
$250,000.00 
$500,000.00 
$250,000.00 
$500,000.00 
$50,000.00 
$100,000.00 
$2,500.00 
$5,000.00 
$802,500.00 
$1,605,000.00 
$2,407,500.002 

At the close of Plaintiff’s case in chief, Defendants filed motions for judgment as a matter
of law on all claims. [237, 238.] Defendants renewed those motions before the case was
submitted to the jury. [242, 243.] The Court deferred setting a briefing schedule on Defendants’
motions until the conclusion of Phase II.
In April 2016, the Court held a two-day bench trial on Plaintiff’s claim for equitable
relief and Defendants’ affirmative defense that Plaintiff failed to mitigate his damages.
Afterward, the Court set a briefing schedule that covered all post-trial briefing, including
Defendants’ motions for judgment as a matter of law and the parties’ Phase II proposed findings
of fact and conclusions of law [see 270]. All motions are now fully briefed.

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The verdict form separated compensatory and punitive damages by claim because compensatory and
punitive damages are subject to “caps” under Title VII, but not under § 1981. See 42 U.S.C.
§ 1981a(b)(3), (4). The Court anticipates that the parties will brief the effect of the caps on the overall
verdict once judgment is entered.

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II.

Judgment as a Matter of Law
On a motion for judgment as a matter of law under Fed. R. Civ. P. 50, a court must

determine whether the evidence presented at trial, when viewed in the light most favorable to the
non-moving party, is sufficient to support the verdict. Massey v. Blue Cross-Blue Shield of
Illinois, 226 F.3d 922, 924 (7th Cir. 2000); see also Hall v. Gary Cmty. Sch. Corp., 298 F.3d 672,
675 (7th Cir. 2002). A jury verdict is not to be set aside if, viewing the evidence presented at trial
in the light most favorable to the prevailing party, there is any reasonable basis to support the
verdict. Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004) (citation omitted). In other
words, the test is whether “no rational juror could have found for the prevailing party.” Turner v.
Miller, 301 F.3d 599, 602 (7th Cir. 2002); see also Emmel v. Coca-Cola Bottling Co. of Chicago,
95 F.3d 627, 630 (7th Cir. 1996) (the court is limited to assessing whether no rational jury could
have found for the plaintiff).
A.

Plaintiff’s Motion to Strike

Before addressing Defendants’ Rule 50 motions, the Court notes that Plaintiff has moved
to strike Defendants’ reply briefs in support of their motions, arguing that Defendants improperly
included testimonial excerpts in those briefs that were not included in Defendants’ opening
briefs. [See 288.] Alternatively, Plaintiff requests that the Court strike from Defendants’ reply
briefs all references to evidence that was not including in Defendants’ opening briefs, or allow
Plaintiff leave to file a surreply. Plaintiff’s motion [288] is denied.
Parties are prohibited from raising arguments for the first time in a reply brief, see
Richardson v. United States, 379 F.3d 485, 487 n.1 (7th Cir. 2004), and to the extent that
Defendants have done so, the Court will ignore those arguments. But Plaintiff’s objection relates
to Defendants’ inclusion of new transcript citations, not new arguments. And as Defendants

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rightly note, the trial transcript was not available when Defendants filed their opening briefs,
which was during the Phase I trial in December 2015. The trial transcript became available to
both parties on May 20, 2016—more than a month before Plaintiff’s responses to Defendants’
motions for judgment as a matter of law were due. Plaintiff did not obtain copies of the trial
transcript or include citations to the trial transcript in his response. By contrast, Defendants did
obtain copies of the trial transcripts and, as expected, did include citations to the trial transcripts
in their reply briefs, buttressing the arguments that they raised in their opening briefs. Not only
are Defendants’ actions appropriate, they are expected. But regardless of whether either party
cited specific excerpts from the trial transcript, the Court is entitled to refer to that transcript in
ruling on the parties’ post-trial motions, meaning that the entire transcript is fair game. See
Cygnar v. City of Chicago, 865 F.2d 827, 834 & n.6 (7th Cir. 1989) (district court’s decision to
rule on post-trial motions “without the benefit of a trial transcript” was “surprising[]”);
LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir. 1995) (requiring a full trial transcript in order to
properly rule on the merits of a motion for judgment as a matter of law). And upon review of the
hundreds of pages in the parties’ post-trial briefing, the Court concludes that a surreply from
Plaintiff is both unnecessary and unwarranted. Thus, Plaintiff’s motion [288] is denied, and the
Court will rule on Defendants’ motions for judgment as a matter of law based on the parties’
current submissions.
B.

Federal Discrimination Claims
1.

Sexual Harassment in Violation of Title VII

Plaintiff alleged that Defendant Rosebud violated Title VII by subjecting him to a hostile
work environment based on sexual harassment. Title VII of the Civil Rights Act of 1964, as
amended, prohibits discrimination in employment: “It shall be an unlawful employment practice

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for an employer * * * to discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). The purpose of this provision as it relates to
discrimination on the basis of sex is to prevent “‘disparate treatment of men and women in
employment,’” regardless of its form. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
78 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). Therefore,
whenever “‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment, Title VII is violated.’” Id. (quoting Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993)).
To establish a prima facie case of hostile work environment sexual harassment, an
employee must establish that (1) he was subjected to unwelcome harassment; (2) the harassment
was based on his sex; (3) the harassment was sufficiently severe or pervasive so as to alter the
condition of his employment and create a hostile or abusive atmosphere; and (4) there is a basis
for employer liability. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007)
(citing Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007)). The third prong of this
test—the severity or pervasiveness of the harassment—has both an objective and a subjective
component. Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008) (citing Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 463 (7th Cir. 2002)). The plaintiff may satisfy the subjective prong by
presenting evidence that he in fact perceived his workplace as hostile or abusive. Hilt-Dyson, 282
F.3d at 463. In determining whether a workplace is objectively hostile, the court considers the
totality of the circumstances, including the frequency and severity of the discriminatory conduct;
“‘whether it is physically threatening or humiliating, or a mere offensive utterance; and whether

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it unreasonably interferes with an employee’s work performance.’” See Faragher v. City of Boca
Raton, 524 U.S. 775, 787–88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir. 1997) (“Title VII is not
directed against unpleasantness per se but only * * * against discrimination in the conditions of
employment.” (quoting Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007,
1009 (7th Cir. 1994))).
Defendants argue that Plaintiff failed to present sufficient evidence to support each of
these four elements. The Court disagrees.
First, Plaintiff presented sufficient evidence to show that he was subjected to unwelcome
harassment. Plaintiff testified for two days regarding countless incidences in which his
coworkers touched, grabbed, and fondled his private parts during work hours. He testified about
how these touches were unwelcome, about how they affected him physically and emotionally,
and about how his complaints and protestations regarding this harassment fell on deaf ears. The
evidence was vast. Despite Defendants’ attempts to impeach the credibility of Plaintiff’s
testimony and to minimize the alleged severity of this constant touching by categorizing it as
“horseplay or goofing around,” Defendants’ argument that no reasonable jury could conclude
that Plaintiff was subjected to unwelcome harassment is a nonstarter.
Second, Plaintiff presented sufficient evidence to show that the harassment was based on
his sex. There was sufficient evidence for a jury to conclude that the touching in question
occurred because of Plaintiff’s sex (e.g., female employees were not subject to this sort of
touching), and that the touching itself was sexual in nature, as it involved the unwanted touching
of Plaintiff’s intimate body parts. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
80 (1998) (“The critical issue, Title VII’s text indicates, is whether members of one sex are

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exposed to disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.” (citation omitted)); id. (“[H]arassing conduct need not be motivated by
sexual desire to support an inference of discrimination on the basis of sex.”); Hamm v.
Weyauwega Milk Prods. Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) (harassment not based on sex
where the plaintiff’s “complaints about the actions of his coworkers inescapably relate[d] to
either [his] coworkers’ disapproval of his work performance or their perceptions of [his] sexual
orientation,” not his sex generally); Gabrielle M. v. Park Forest-Chicago Heights, IL Sch. Dist.
163, 315 F.3d 817, 827 (7th Cir. 2003) (concluding that “the record readily supports the
inference that [defendant’s] acts were based on sex” because they involved “touching
[plaintiff’s] genitals”).
Third, there was sufficient evidence to allow the jury to conclude that the harassment was
sufficiently severe or pervasive so as to alter the condition of Plaintiff’s employment and create a
hostile or abusive atmosphere. Plaintiff testified about the physical and emotional impact of the
harassment, as well as the impact of his failed attempts to address the workplace harassment,
which ultimately led to his constructive termination. Defendants’ argument that “[a]lthough
Plaintiff claimed his environment became ‘intolerable’ leading him to quit, there was no
evidence to support that claim” is untenable. [237, at 4.] Again, Plaintiff testified at length about
daily instances of harassment that continued for years despite his complaints. This evidence,
when viewed in the light most favorable to Plaintiff, is sufficient to support the jury’s verdict.
Fourth, Plaintiff presented sufficient evidence to establish a basis for employer liability.
Under Title VII, different standards of employer liability apply depending on whether the alleged
harasser is the victim’s supervisor or a coworker. An employer is strictly liable for harassment by
a supervisor. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008) (citing

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Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006)). A “supervisor” for Title VII
purposes is “not simply a person who possesses authority to oversee the plaintiff’s job
performance, but a person with the power to directly affect the terms and conditions of the
plaintiff’s employment.” Id. (citation omitted). This power includes generally “the authority to
hire, fire, promote, demote, discipline or transfer * * *.” Id. (citing Rhodes v. Illinois Dep’t. of
Transp., 359 F.3d 498, 506 (7th Cir. 2004)). An employer is liable for harassment by a coworker
only if it was negligent in discovering or remedying the harassment, that is, if the employer
“knew or should have known about the harassment and failed to take reasonable steps to remedy
the harassment once it was on notice.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 976
(7th Cir. 2004); Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004) (“Put
differently, the employer can avoid liability for its employees’ harassment if it takes prompt and
appropriate corrective action reasonably likely to prevent the harassment from recurring.”).
Regarding supervisor harassment, the evidence presented at trial establishes that
Defendant Castaneda was Plaintiff’s supervisor (e.g., he oversaw Plaintiff’s performance, had
the authority to hire and fire, etc.), and Plaintiff testified about an incident in “2005 or 2006”
where Defendant Castaneda “grabbed [his] ass.” [Tr. Dec. 9, 2015, at 513–15.] A reasonable jury
could conclude that this was an act of supervisor harassment for which Defendant Rosebud is
strictly liable. Arguably, however, this one incident might not have risen to the “severe or
pervasive” standard required of actionable harassment. See Mercer v. Cook County, Ill., 527 F.
App’x 515, 521–22 (7th Cir. 2013) (citing cases where single incidents were not considered
severe or pervasive); Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) (recognizing that, in
some instances, “a single incident might qualify for a hostile environment claim”). But the Court
need not resolve that issue here because Plaintiff presented sufficient evidence to show that

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Rosebud knew of coworker harassment but failed to address it. Specifically, Plaintiff testified
that his coworkers openly harassed him in public areas of the market from 2003 to 2008, and that
he repeatedly complained to management about this harassment but Defendant Rosebud did
nothing in response. See Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999) (employer
had constructive knowledge of harassment that occurred in common areas); National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (explaining that “the entire time period of
the hostile environment may be considered by a court for the purposes of determining liability,”
including acts that occurred outside of the statutory filing period). This is sufficient to allow a
jury to conclude that Rosebud knew or should have known about the harassment and failed to
take reasonable steps to remedy the harassment once it was on notice.
2.

Retaliation in Violation of Title VII

Under the anti-retaliation provision of Title VII, it is unlawful for an employer to
discriminate against an employee for opposing an unlawful employment practice or for making a
charge, testifying, assisting, or participating in a Title VII investigation, proceeding, or hearing.
Brown v. Ill. Dep’t of Nat. Resources, 499 F.3d 675, 684 (7th Cir. 2007) (quoting 42 U.S.C.
§ 2000e-3(a)). To prove his retaliation claim, Plaintiff must present evidence that, when
considered as a whole, would allow a reasonable factfinder to conclude that his filing of a charge
of discrimination caused the adverse employment action (here, constructive discharge). Ortiz v.
Werner Enters., ––– F.3d –––, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016).
Defendants argue that Plaintiff failed to demonstrate that he suffered continued
harassment that led him to quit after he filed his charge of discrimination with the EEOC, or that
there was a causal connection between his filing of an EEOC charge and his decision to quit. The
Court disagrees.

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Plaintiff filed his charge of discrimination with the EEOC on January 7, 2008, and he quit
his job six months later, in June 2008. At trial, Plaintiff testified that during this six-month period
Rosebud employees stopped harassing him sexually, but began harassing him in new and
different ways. For example, Plaintiff testified that his coworkers told him that he was no longer
welcome at Rosebud; they would slam knives on cutting boards when Plaintiff was nearby; they
broke a portable television that Plaintiff brought to work; they scratched his car, cracked his
windshield, and slashed his tires; and they walked past him carrying trays of meat that had
knives sticking out of them such that Plaintiff had to move out of the way to avoid getting cut.
[Tr. Dec. 10, 2015, at 759–81.] Plaintiff then testified that these actions made him feel
“unwelcome,” “disrespected,” “nervous,” and “scared,” leading him to quit his job. [Id. at 782–
83.] Plaintiff’s testimony is sufficient to allow a reasonable jury to conclude that Plaintiff
suffered an adverse employment action because he filed his EEOC charge. Defendants’
argument that Plaintiff’s allegations are uncorroborated and “too vague and unspecific” is
unavailing—a reasonable jury could credit Plaintiff’s testimony absent any corroboration, and
Plaintiff’s testimony was neither vague nor unspecific, certainly not to the degree that would
justify judgment as a matter of law in Defendants’ favor.
3.

Racial Discrimination in Violation of § 1981

The substantive standards and methods of proof that apply to claims of racial
discrimination and retaliation under Title VII also apply to claims under § 1981. See Humphries
v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008). Thus, to
succeed on his § 1981 claim, Plaintiff had to satisfy four elements: “(1) the work environment
must have been both subjectively and objectively offensive; (2) race must have been the cause of
the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis

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for employer liability.” Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011). Claims
brought under § 1981 do not require exhaustion of administrative remedies, Fane v. Locke
Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007), and are subject to a four-year statute of
limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004); Dandy v. United
Parcel Service, Inc., 388 F.3d 263, 269 (7th Cir. 2004).
Plaintiff testified at trial that he was subjected to racial harassment throughout his
employment at Rosebud Farmstand (i.e., from 2003 to 2008). Plaintiff testified that his
coworkers frequently referred to him “nigger” and “monkey,” and told him to “go back to
Africa.” [Tr. Dec. 9, 2015, at 676–86.] He estimated that his coworkers made racial remarks
20 times in 2004, 30 times in 2005, and over 70 times in 2006. [Tr. Dec. 9, 2015, at 685.]
Plaintiff said that during 2008, he was subjected to racial harassment approximately five times
per week, including comments from coworkers telling him to “go back to Africa,” calling him a
“monkey,” a “nigger,” and a “slave.” [Tr. Dec. 10, 2015, at 754–58.] He testified that Defendant
Castaneda did not make racial remarks in 2008, although in 2005 or 2006 Defendant Castaneda
said something to Plaintiff “about how black guys have big dicks and big asses.” [Tr. Dec. 9,
2015, at 515.]
Defendants’ primary argument is that the bulk of the alleged racial harassment occurred
outside of the relevant “evidentiary period,” and that the only evidence of racial harassment
within the evidentiary period is “a few isolated, stray remarks,” which is insufficient to support a
hostile work environment claim. [See 237, at 7.] Plaintiff filed his complaint on December 23,
2011, meaning that the limitations period for Plaintiff’s § 1981 claim goes back to December 23,
2007, approximately six months before Plaintiff quit Rosebud. Defendants argue that this sixmonth period is the only relevant “evidentiary period” for assessing Plaintiff’s § 1981 claim, and

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that all acts of racial harassment that pre-date December 23, 2007 are irrelevant. But Defendants
ignore the fact that Plaintiff’s § 1981 claim, like his Title VII claim, is based on a hostile work
environment theory of liability. And both the Supreme Court and the Seventh Circuit have
explained that the so-called “evidentiary period” relevant to such claims extends to include prelimitations conduct:
A hostile work environment claim is composed of a series of separate acts that
collectively constitute one “unlawful employment practice.” 42 U.S.C. § 2000e5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a
charge within a certain number of days after the unlawful practice happened. It
does not matter, for purposes of the statute, 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 the purposes
of determining liability.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002); see also Pruitt v. City of
Chicago, Ill., 472 F.3d 925, 927 (7th Cir. 2006) (explaining that the inclusion of pre-limitations
conduct for hostile work environment claims applies equally to Title VII and § 1981 claims);
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir. 2004) (explaining that the
continuing violation doctrine described in Morgan “applies to Title VII as well as § 1981
claims”). Thus, all of Defendants’ acts of racial discrimination, including those pre-dating the
limitations period, are relevant for determining Defendants’ liability for creating a hostile work
environment. Defendants’ argument that there was insufficient evidence (or no evidence [287, at
10]) to substantiate Plaintiff’s § 1981 claim is unpersuasive.
Defendants also argue—generally, without tying the argument to any specific element of
a § 1981 claim—that Plaintiff’s evidence of racial harassment should be discredited because, for
the most part, Plaintiff’s witnesses did not corroborate his testimony. [237, at 7; 287, at 10–11.]
This argument is unavailing for two reasons. First, while Plaintiff testified about repeated acts of
sexual harassment that occurred openly in public areas of the market, Plaintiff said that his
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coworkers would make racial remarks as they were walking past Plaintiff, that “[t]hey wouldn’t
say [them] loud,” and that they would say the comments “so [Plaintiff] could hear [them].” [Tr.
Dec. 10, 2015, at 753–58.] Based on this testimony, a lack of corroborating evidence might have
come as no surprise to the jury (i.e., perhaps other employees did not overhear these racial
comments). Second, even if the witnesses flatly contradicted Plaintiff’s testimony, it is still the
province of the jury to assess witness credibility, and Plaintiff’s testimony, if credited, provided a
sufficient evidentiary basis to find in his favor.
Defendants also argue that Plaintiff failed to present any basis for employer liability.
Again, different standards of employer liability apply depending on whether the alleged harasser
is the victim’s supervisor or a coworker. An employer is strictly liable for harassment by a
supervisor, and an employer is liable for harassment by a coworker only if it was negligent in
discovering or remedying the harassment, that is, if the employer “knew or should have known
about the harassment and failed to take reasonable steps to remedy the harassment once it was on
notice.” Wyninger, 361 F.3d at 976.
Plaintiff’s only evidence of supervisor harassment is that in 2005 or 2006, Defendant
Castaneda said something to Plaintiff “about how black guys have big dicks and big asses.” [Tr.
Dec. 9, 2015, at 515.] While this is only a single incident, the Seventh Circuit has said that “in
the case of racial and ethnic slurs, some words are so outrageous that a single incident might
qualify for a hostile environment claim.” Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005)
(recognizing that, in some instances, “a single incident might qualify for a hostile environment
claim”). But again, the Court need not decide whether Defendant Castaneda’s comment qualifies
as a severe or pervasive instance of racial harassment because Plaintiff can establish that
Rosebud knew of coworker harassment but failed to address it. Specifically, Plaintiff testified

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that his coworkers racially harassed him 2003 to 2008, and that he repeatedly complained to
management about this harassment but Defendant Rosebud did nothing in response. This is
sufficient to allow a jury to conclude that Rosebud knew or should have known about the
harassment and failed to take reasonable steps to remedy the harassment once it was on notice.
Defendants also argue that “[t]here is insufficient evidence to show [that Plaintiff]
suffered an adverse action as a result of [the] alleged racial harassment.” [287, at 10.] But this is
not an element of a § 1981 hostile work environment claim, and thus Defendants’ argument is
misplaced. The Court addresses this “adverse action” argument in reviewing Plaintiff’s
retaliation claim.
4.

Retaliation in Violation of § 1981

The retaliation standard for § 1981 claims is identical to standard for Title VII claims,
which, as explained above, requires Plaintiff to present evidence that, when considered as a
whole, would allow a reasonable factfinder to conclude that his filing of a charge of
discrimination caused his constructive discharge. Ortiz, 2016 WL 4411434, at *4.
Similar to his allegations for his Title VII retaliation claim, Plaintiff alleges that after he
filed his charge of discrimination with the EEOC on January 7, 2008, Defendant Rosebud
retaliated against him in a variety of ways, ultimately causing his resignation six months later.3
Defendants argue that “Plaintiff failed to offer any evidence beyond his own testimony to
establish he allegedly was subjected to racial harassment after January 2008 that was worse,
different or retaliatory alleged [sic] in any way.” [237, at 8.] But as mentioned throughout this
opinion, the jury, as the arbiter of witness credibility, was entitled to credit Plaintiff’s testimony
3

To be clear, although Plaintiff did not include any allegations of verbal racial harassment in his charge
of discrimination with the EEOC (i.e., he did not complain about the years of racial comments that
comprise his § 1981 hostile work environment claim), he did allege that Rosebud Farmstand
discriminated against him on the basis of race in ways that were not at issue in this lawsuit (i.e., that he
was sent home from work and his hours were reduced because of his race). [See 228-1.]

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in assessing Defendants’ liability, regardless of whether Plaintiff offered any corroborating
testimony from other witnesses.
Defendants also argue that Plaintiff failed to show any material change in his work
environment because he filed his charge of discrimination. It is unclear whether Defendants are
arguing that Plaintiff failed to establish that he was subject to an adverse action, or whether the
adverse action was causally linked to the filing of the charge of discrimination. Regardless, both
arguments are unconvincing. As discussed above, Plaintiff testified that his coworkers’
threatening and intimidating actions following his filing of his charge of discrimination made
him feel “unwelcome,” “disrespected,” “nervous,” and “scared,” causing him to quit his job (i.e.,
his constructive discharge). [Tr. Dec. 10, 2015, at 782–83.] Plaintiff’s testimony is sufficient to
allow a reasonable jury to conclude that Plaintiff suffered an adverse employment action because
he filed his EEOC charge, and thus sufficient to sustain a jury verdict for retaliation in violation
of § 1981.
C.

Illinois Gender Violence Act Claims

The Illinois Gender Violence Act says that “[a]ny person who has been subjected to
gender-related violence as defined in Section 5 may bring a civil action for damages, injunctive
relief, or other appropriate relief against a person or persons perpetrating that gender-related
violence.” 740 ILCS 82/10. The Act defines “gender-related violence” to include:
(1) One or more acts of violence or physical aggression satisfying the elements of
battery under the laws of Illinois4 that are committed, at least in part, on the basis
of a person’s sex, whether or not those acts have resulted in criminal charges,
prosecution, or conviction.
4

In Illinois, a battery is committed by an individual if (a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third person, or an imminent apprehension of such a
contact, and (b) a harmful contact with the person of the other directly or indirectly results. Flores v.
Santiago, 986 N.E.2d 1216, 1219 (Ill. App. Ct. 2013) (citations omitted). “[T]he gist of the action for
battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the
part of the plaintiff.” Id. (citations and internal quotation marks omitted).

16

(2) A physical intrusion or physical invasion of a sexual nature under coercive
conditions satisfying the elements of battery under the laws of Illinois, whether or
not the act or acts resulted in criminal charges, prosecution, or conviction.
(3) A threat of an act described in item (1) or (2) causing a realistic apprehension
that the originator of the threat will commit the act.
740 ILCS 82/5. Liability only can be imposed against a person who perpetrated gender-related
violence, where “perpetrated” means either personally committing the gender-related violence or
personally encouraging or assisting the act or acts of gender-related violence. 740 ILCS 82/10.
The statute of limitations for IGVA claims is seven years for actions based on genderrelated violence as defined in paragraphs (1) or (2) of Section 5, and two years for actions based
on gender-related violence as defined in paragraph (3). 740 ILCS 82/20. Plaintiff filed his
lawsuit on December 23, 2011. Because Plaintiff left Rosebud Farmstand in 2008, any claim of
gender-related violence under paragraph (3) of Section 5 would be barred by the two-year statute
of limitations applicable to such claims, which dates back to December 23, 2009. Any claims
pursuant to paragraphs (1) or (2) of Section 5 would have to involve incidents occurring after
December 23, 2004 to avoid the seven-year statute of limitations applicable to those claims. The
relevant inquiry, then, is whether Plaintiff presented sufficient evidence for the jury to conclude
that Defendants Castaneda or Mendoza committed an act of gender violence as defined in
paragraph (1) or (2) of Section 5 of the IGVA against Plaintiff on or after December 23, 2004.
1.

Defendant Castaneda

Defendant Castaneda’s primary argument is that he is entitled to judgment as a matter of
law because the only times that he purportedly touched Plaintiff in an offensive manner were
outside of the applicable limitations period. Defendant points to the following testimony from
Plaintiff’s cross-examination in support:

17

Q.

Now, Mr. Smith, you testified yesterday that the second time
Mr. Castaneda touched you was in December of 2003, correct?5

A.

Correct.

***
Q.

And after December of 2003, Mr. Castaneda didn’t touch you
again; is that correct?

A.

Correct.

[Tr. Dec. 10, 2015, at 853–54.] However, Defendant Castaneda acknowledges that Plaintiff
testified the day before that “Castaneda continued to slap his butt until October 2006 or until a
few months before Castaneda pulled his time card in December 2007.” [238, at 3.] More
specifically, when asked whether Defendant Castaneda touched him after the two incidents in
2003, Plaintiff said, “I would say it happened frequent—a couple more times prior to—from
2003 to 2008,” and then went on to testify regarding an incident from March 2004 (outside of the
limitations period), and, importantly, one final incident in “2005 or 2006” where Defendant
Castaneda “grabbed [his] ass.” [Tr. Dec. 9, 2015, at 513–15.]
Defendant Castaneda argues that Plaintiff’s testimony regarding the 2005/2006
touching—the only physical touching within the limitations period—is “too vague” to
substantiate an IGVA claim, especially considering that this testimony is contradicted by
Plaintiff’s testimony the following day that Defendant Castaneda never touched him after 2003.
While the Court agrees that Plaintiff contradicted himself on this issue, it was within the
discretion of the jury to credit Plaintiff’s initial testimony that Defendant Castaneda touched him
in 2005 or 2006. And if the jury did credit Plaintiff’s earlier testimony, there is nothing within
the IGVA standard that would preclude a finding of liability based on that single incident.
5

In his direct testimony on December 9, 2015, Plaintiff testified regarding two incidents, in November
and December 2003, when Defendant Castaneda touched him.

18

Defendant Castaneda also argues that Plaintiff failed to present any evidence that the
action in question was based upon Plaintiff’s sex. The Court disagrees. There was sufficient
evidence for a jury to conclude that the touching in question occurred because of Plaintiff’s sex:
female employees were not subject to this sort of touching, and that the touching itself was
sexual in nature, as it involved the unwanted touching of Plaintiff’s intimate body parts. See
Oncale, 523 U.S. at 80; Hamm, 332 F.3d at 1062; Gabrielle M., 315 F.3d at 827. While the jury
could have interpreted Defendant Castaneda’s actions as “simply expressions of animosity or
juvenile provocation,” as opposed to actions based on Plaintiff’s sex, Johnson v. Hondo, Inc.,
125 F.3d 408, 412 (7th Cir. 1997), the Court cannot say that no rational juror could have found
for Plaintiff based on the evidence presented. Defendant Castaneda’s motions therefore must be
denied.
2.

Defendant Mendoza

Defendant Mendoza argues that the jury lacked a sufficient evidentiary basis to convict
him of gender violence because Plaintiff’s testimony about improper touching was not
corroborated by Plaintiff’s witnesses, and because the only corroborated incidents involved butt
slapping, which was not based on Plaintiff’s sex and was not an act of gender violence. The
Court is not persuaded.
Plaintiff described in detail how Defendant Mendoza touched, grabbed, pulled, and
flicked his private parts “numerous” times each year from 2003 until the end of 2007. [Tr. Dec.
9, 2015, at 521–23, 526–29.] Based on this testimony alone, regardless of whether it was
corroborated by other witnesses, the jury had sufficient evidence to find Defendant Mendoza
liable for violating the IGVA. Thus, Defendant Mendoza’s motions must be denied as well.

19

III.

Phase II – Equitable Damages
A.

Miscellaneous Motions

Before addressing the merits of the parties’ Phase II arguments, the Court addresses two
motions [272, 274] that arose during post-trial briefing that impact the scope of reviewable
material regarding the Phase II issues.
First, Defendants filed a motion to supplement the Phase II record to include certain
payroll records to rebut Plaintiff’s allegedly new contention that Defendants denied him overtime
pay, as well as a series of other documents that Defendants contend are appropriate in light of
unexpected Phase II testimony. [See 272.] Upon review of the documents in question, the Court
agrees that the documents relate to matters that Defendants arguably could not have anticipated
during trial and are relevant to the Court’s assessment of Plaintiff’s entitlement to equitable
relief. Plaintiff’s objections to the admission of these exhibits include a series of attacks on the
affidavit of Norman Brucer and an argument that Defendants should have sought permission
from the Court earlier [see 283, at 8–9.]. As to Plaintiff’s first objection, the Court will consider
Norman Brucer’s affidavit subject to Plaintiff’s objections. As to Plaintiff’s second objection, the
timing of Defendants’ submissions has not resulted in any undue prejudice to Plaintiff, who was
able to review the documents and respond to them as part of his response and reply briefs.
Accordingly, Defendants’ motion [272] is granted, and the Court will consider these records in
making its Phase II findings of fact and conclusions of law.
Second, Defendants filed a motion to amend their answer to add an affirmative defense of
unclean hands. [See 274.] Federal Rule of Civil Procedure 15(b)(2) says that leave to amend
should be “freely give[n] when justice so requires.” Defendants argue that their basis for making
this unclean hands defense arose from unexpected Phase II testimony from Plaintiff regarding

20

mitigation of damages that allegedly conflicts with his pre-testimonial representations. See
Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir. 2011). The Court agrees that
Defendants’ unclean hands defense relates to matters that Defendants arguably could not have
anticipated before trial, and the parties’ arguments on the issue could assist the Court in assessing
Plaintiff’s entitlement to equitable relief. Further, there is no concern of undue prejudice in
allowing Defendants to raise this defense at this stage in the proceeding because Plaintiff was
given the opportunity to present his arguments on the issue in his post-trial briefing [see, e.g.,
283, at 19 n.1]. Without weighing in on the merits of Defendants’ affirmative defense, the Court
grants Defendants’ motion to amend [274] its answer to add the affirmative defense of unclean
hands. Defendants need not file an amended answer on the Court’s docket because Plaintiff is
aware of the defense and the parties have addressed the defense in their post-trial briefing.
B.

Equitable Relief

The purpose of the Phase II proceedings in this matter is to adjudicate Plaintiff’s
entitlement, if any, to equitable relief pursuant to Title VII and § 1981.6 “A Title VII victim is
presumptively entitled to full relief.” Hutchison v. Amateur Elec. Supp., Inc., 42 F.3d 1037, 1044
(7th Cir. 1994); Miles v. Indiana, 387 F.3d 591, 599 (7th Cir. 2004). Under Title VII, if an
employer has been found to have intentionally engaged in an unlawful employment practice, a
district court may order back pay, reinstatement, and “any other equitable relief as the court
deems appropriate.” 42 U.S.C. § 2000e–5(g)(1); see also Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 460 (1975) (“An individual who establishes a cause of action under § 1981 is

6

Plaintiff suggests that the Court should enter judgment against the individual Defendants for any award
of equitable relief pursuant to the Illinois Gender Violence Act. Plaintiff has not provided any authority
for this request. While the IGVA does allow a court to award “other appropriate relief,” 740 ILCS 82/15,
which in theory could include equitable relief, the Court sees no basis for doing so here. Any award of
equitable relief shall be entered against Defendant Rosebud Farmstand only, and not against either
Defendant Castaneda or Defendant Mendoza.

21

entitled to both equitable and legal relief, including compensatory and, under certain
circumstances, punitive damages.”). “Front pay represents the wages the plaintiff would have
earned had [he] not been fired measured from the date of the judgment to some reasonable point
in the future.” Gracia v. Sigmatron Int’l, Inc., 130 F. Supp. 3d 1249, 1255 (N.D. Ill. 2015) (citing
McKnight v. General Motors Corp., 908 F.2d 104, 116 (7th Cir. 1990)). “Back pay, on the other
hand, represents the wages the plaintiff would have earned had [he] not been fired between the
time of the firing and the date of judgment.” Id. (citing Seventh Circuit Pattern Civil Jury
Instruction 3.11). District courts have “broad equitable discretion to fashion back pay awards to
make the Title VII victim whole.” David v. Caterpillar, Inc., 324 F.3d 851, 865 (7th Cir. 2003);
see also Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 499–501 (7th Cir. 2000)
(“Back pay and front pay are equitable remedies * * * and therefore matters for the judge.”).
1.

Back Pay

Employees who succeed in proving employment discrimination are presumptively
entitled to back pay. David, 324 F.3d at 865. The plaintiff bears the initial burden of establishing
the amount of back pay, and then the burden “shifts to the defendant to show that the plaintiff
failed to mitigate damages or that damages were in fact less than the plaintiff asserts.”
Hutchison, 42 F.3d at 1044; see also Taylor v. Philips Indus., Inc., 593 F.2d 783, 787 (7th Cir.
1979) (“Not until the plaintiff establishes what she contends are her damages does the burden of
going forward to rebut the damage claim or to show plaintiff’s failure to mitigate damages, fall
on defendant.”).
a.

Plaintiff’s Burden

The first step to determining Plaintiff’s entitlement to back pay is to calculate the wages
Plaintiff would have earned had he continued working at Rosebud Farmstand from the date he

22

left up until the judgment in his favor at trial. Plaintiff worked at Rosebud Farmstand until his
constructive discharge on June 28, 2008, and the jury returned a verdict in Plaintiff’s favor on
December 15, 2015. So the relevant question is what Plaintiff would have earned in the sevenand-a-half year period between June 28, 2008 and December 15, 2015.7
Throughout his employment at Rosebud, Plaintiff held an entry-level position in the meat
department and was paid minimum wage. Plaintiff’s yearly earnings are represented in the
following chart, based on business records produced by Defendants [see 272-1, at 2–9]:
Year 

Regular 
Time Hours 

Overtime 
Hours 

Total 
Hours 

Regular 
Time Pay 

Overtime 
Pay 

Total Pay 

2004 

2100.09 

750.95 

2851.04 

$12,075.53 

$6,477.00 

$18,552.53 

2005 

1975.75 

738.73 

2714.48 

$12,842.57 

$7,202.67 

$20,045.24 

2006 

1933.42 

397.33 

2370.75 

$12,567.27 

$3,874.03 

$16,701.30 

2007 

1760.53 

3.07 

1803.6 

$12,308.50 

$30.34 

$12,338.84 

2008 

738.65 

0 

738.65 

$5,539.92 

$0.00 

$5,539.92 

Because Plaintiff was always paid minimum wage, it is fair to say that Plaintiff would
have continued making minimum wage had he continued working at Rosebud Farmstand. What
is unclear are the number of hours Plaintiff would have worked and whether that number would
have included any overtime hours.
Plaintiff’s hours decreased year by year throughout the five years that he worked at
Rosebud Farmstand, going from approximately 55 hours per week in 2004 down to
approximately 28 hours per week in 2008. At trial, Defendant Castaneda—Plaintiff’s supervisor
at Rosebud Farmstand—said that around 2005 or 2006 Plaintiff requested to work fewer hours
because “he didn’t want to pay that much child support.” [Tr. Dec. 11, 2015, at 1015–16.] The
data support this testimony. For example, while Plaintiff’s regular-time hours stayed about the
7

Technically judgment has not yet been entered, due to the delay in adjudicating Phase II of the trial.
However, the Court exercises its discretion in setting the cut-off point for pre-judgment interest at the date
of verdict.

23

same in 2005 and 2006 (1,976 hours and 1,933 hours, respectively), his overtime hours dropped
by nearly 50 percent during this time (from 739 hours to 397 hours). Notably, the majority of the
overtime hours that Plaintiff worked in 2006 were in the first half of the year, and Plaintiff
worked only 6.82 overtime hours in the fourth quarter of 2006. [261-1, at 10–11.] By 2007,
Plaintiff’s overtime hours had disappeared completely, and his regular-time hours dropped to
approximately 34 hours per week.
Plaintiff does not provide any credible evidence refuting Defendants’ contention that he
voluntarily requested the reduction in hours that began in the second half of 2006, which reduced
Plaintiff’s workload to approximately 34 hours per week. Plaintiff does claim (as articulated in
his charge of discrimination) that in July 2007, Defendant Rosebud further reduced his hours
from 34 hours per week to 30 hours per week in retaliation for Plaintiff complaining about
harassment. But this claim is not supported by the data. According to Plaintiff’s weekly time
sheets,8 his hours actually increased in the second half of 2007, going from 33.23 hours per week
in the first half of the year to 33.88 hours per week in the latter half. [See 261-1, at 12–13.] In
fact, excluding December 2007 (where Plaintiff’s hours dropped significantly to 21.85 hours per
week), Plaintiff was averaging 36.74 hours per week in the second half of 2007. Thus, the data
do not reflect any recognizable drop in hours in or around July 2007.
However, Plaintiff’s hours did drop slightly in 2008 to an average 28.92 hours per week.9
The timing of this reduction in hours corresponds with Plaintiff’s filing of his EEOC charge of
discrimination in January 2008, which forms the basis of Plaintiff’s retaliation claim as

8

The Court recognizes the minor discrepancy between Rosebud’s weekly time sheets and its year-end
reports concerning Plaintiff’s total hours worked in 2007, with the former listing 1,744.77 [261-1, at 12–
13], and the latter listing 1,763.60 [272-1, at 7].

9

Again, there is a minor discrepancy between Plaintiff’s 2008 hours as reported in his weekly time sheets
(723.05) and in Rosebud’s year-end report (738.65). [See 261-1, at 14–15; 272-1, at 8.]

24

articulated in his complaint: i.e., that Rosebud reduced his hours from 34 hours per week to
30 hours per week because he filed his charge of discrimination (as opposed to Plaintiff’s nowdebunked claim from his charge of discrimination that this reduction in hours occurred six
months earlier, in July 2007). While Plaintiff’s counsel did not elicit this testimony at trial or
argue it at closing, Defendants raised the issue with Plaintiff on cross-examination, giving him
the opportunity to confirm this allegation at trial, which he did. [See Tr. Dec. 10, 2015, at 845–
46; 880; 887.] Based on Plaintiff’s testimony, it is possible that the jury considered this reduction
in Plaintiff’s hours beginning in December 2007 in concluding that Defendants retaliated against
Plaintiff for filing his charge of discrimination.10 Accordingly, the Court will ignore this second
reduction in hours in determining Plaintiff’s average work week for purposes of calculating his
back pay.
The Court concludes that the relevant timeframe for determining Plaintiff’s average work
week is after Plaintiff requested a reduction in hours in 2006, but before Plaintiff’s hours were
involuntarily reduced in retaliation for filing his charge of discrimination at the end of 2007.
While it is unclear as to precisely when Plaintiff requested his reduction in hours in 2006, the
first noticeable reduction appears in the fourth quarter of that year, where Plaintiff’s hours
dropped to an average of 34.48 hours per week. This number remained relatively consistent
throughout 2007, where Plaintiff worked an average of 33.87 hours per week. In the combined
15 months spanning October 2006 through December 2007, Plaintiff averaged 33.74 hours per
10

Defendants contested Plaintiff’s statement at trial, noting that Plaintiff did not file his charge of
discrimination until January 7, 2008, and thus any reduction in hours that occurred on December 23, 2007
could not have been in retaliation for Plaintiff’s filing of his charge of discrimination. However, Plaintiff
testified briefly that he told Carlos Castaneda and Roque Mendoza that he was going to file charges
before January 7, 2008, and he also implied that he filed a complaint on December 19, 2007. While this
testimony leaves much to be desired, based on the close proximity between Plaintiff’s filing of his charge
of discrimination and his reduction in hours, coupled with the absence of any other explanation as to why
Plaintiff’s hours dropped at this time, the Court concludes that it is reasonable to believe that Defendants
reduced Plaintiff’s hours in December 2007/January 2008 in retaliation for filing his EEOC charge.

25

week. Based on this information, the Court sets Plaintiff’s hourly work week at 34 hours for
purposes of calculating back pay.
Taking into consideration the changes in minimum wage in Illinois over the relevant time
period, the Court calculates Plaintiff’s lump sum back pay as follows, with the understanding
that Illinois’ minimum-wage increases of $0.25 went into effect on July 1, 2008, 2009, and 2010:
Year 

Weeks 

Hours per 
Week 

Wage per 
Hour 

Total 

2008 

1 

34 

$7.50 

$255.00 

2008 

26 

34 

$7.75 

$6,851.00 

2009 

26 

34 

$7.75 

$6,851.00 

2009 

26 

34 

$8.00 

$7,072.00 

2010 

26 

34 

$8.00 

$7,072.00 

2010 

26 

34 

$8.25 

$7,293.00 

2011 

52 

34 

$8.25 

$14,586.00 

2012 

52 

34 

$8.25 

$14,586.00 

2013 

52 

34 

$8.25 

$14,586.00 

2014 

52 

34 

$8.25 

$14,586.00 

2015 

50 

34 

$8.25 
Total 

$14,025.00 
$107,763.00 

Plaintiff also says that he should be entitled to 15 hours per week of overtime pay,
claiming that such a figure is “reasonable.” Because the Court already has concluded that
Plaintiff is entitled to 34 hours per week in back pay, no amount of overtime pay is reasonable.
Plaintiff’s request for overtime pay is denied.
b.

Failure to Mitigate

Generally, “a discharged employee must mitigate damages by using reasonable diligence
in finding other suitable employment.” Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1202
(7th Cir. 1989) (internal quotation marks and emphasis omitted). Thus, back pay awards must be
reduced by “[i]nterim earnings and amounts earnable [by the employee] with reasonable
diligence.” 42 U.S.C. § 2000e–5(g)(1). Because the statutory text requires subtracting not only

26

actual “interim earnings” but also amounts “earnable with reasonable diligence,” a plaintiff
“cannot just leave the labor force after being wrongfully discharged in the hope of someday
being made whole by a judgment.” Hutchison, 42 F.3d at 1044. Nor will a lack of job-seeking
success excuse the plaintiff from this duty to mitigate; a plaintiff’s “duty to mitigate [does] not
evaporate in the face of his difficulties.” Payne v. Security Savings & Loan Assoc., 924 F.2d 109,
111 (7th Cir. 1991). Although the duty to mitigate falls on the plaintiff, see Ford Motor Co. v.
EEOC, 458 U.S. 219, 231 (1982), it is the employer’s burden to establish that the plaintiff failed
to mitigate his damages. See Hutchison, 42 F.3d at 1044. “To establish the affirmative defense of
a plaintiff’s failure to mitigate damages, the defendant[] must show that: (1) the plaintiff failed to
exercise reasonable diligence to mitigate [his] damages, and (2) there was a reasonable
likelihood that the plaintiff might have found comparable work by exercising reasonable
diligence.” Id.; see also Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1234 (7th Cir. 1986).
In the seven-and-a-half years between Plaintiff’s constructive discharge and the jury’s
verdict on his claims of discrimination, Plaintiff worked for eight separate employers (he worked
for Party City twice) in various cities in Arizona and in Chicago, Illinois:
Place of Employment 
Party City 
Washington Inventory Service 
Labor Ready 
Party City 
Way To Go Transportation 
Citywide Janitorial 
7‐Eleven 
Goodwill 
Labor Ready 

Location 
Gilbert, AZ 
Tempe, AZ 
Tempe, AZ 
Gilbert, AZ 
Tempe, AZ 
Chicago, IL 
Mesa, AZ 
Mesa, AZ 
Tempe, AZ 

Dates 
2008 
Mar 2009 – unknown 
2010 
October 2011 
Nov 2011 – Aug 2012 
Sept 2013 – June 2014 
June 2014 – Oct 2014 
Nov 2014 – Feb 2015 
Mar 2015 – Present  
Total 

Total Earned 
$826.07 
$387.00 
$78.00 
$962.00 
$4,533.00 
$8,478.00 
$5,235.08 
$2,027.28 
$15,474.77 
$38,001.20 

Reason for Leaving 
Unclear 
Quit, vehicle problems 
Enrolled in college 
Seasonal work 
Moved to Chicago 
Moved to Arizona 
Terminated 
Laid off 
Employed at time of trial 

Plaintiff’s post-Rosebud wages are supported by various employment records and tax documents
that the parties introduced into evidence during Phase II, and Plaintiff does not dispute that these
interim earnings should be subtracted from his back pay award.
27

But Defendants have lodged multiple arguments as to why Plaintiff’s back pay award
should be reduced further, or eliminated altogether. First and foremost, Defendants question
Plaintiff’s diligence in seeking employment after his constructive discharge from Rosebud, and
dispute the credibility of his testimony to the contrary. For example, Plaintiff testified at length
about how, throughout the approximately four years in which he was unemployed during the
relevant back pay period, he would spend five hours per day reviewing ads in local newspapers
and applying for jobs online, and then he would spend an additional three hours patrolling the
streets in a four-mile radius around his home looking for jobs. But despite these herculean
efforts, Plaintiff was unable to produce any records showing that he applied for even a single
job—no emails or letters from prospective employers, no personal notes tracking applications, no
copies of job applications, etc. The scant evidentiary record reflecting Plaintiff’s efforts consists
of the fact that he actually was hired by eight different companies (implying that he must have
applied for at least some of those jobs), and copies of two job applications from employers that
did not hire Plaintiff (Walmart and Fry’s Food Store), which Defendants obtained by subpoena.
Defendants further attack Plaintiff’s credibility by highlighting discrepancies between Plaintiff’s
discovery responses and his trial testimony, where Plaintiff’s representations regarding his jobsearch efforts went from de minimus during discovery to monumental once Plaintiff took the
stand. Finally, Defendants round out their argument by referring to their expert, Dr. Cohen, who
testified about the vast number of job advertisements in Chicago and Arizona during the years
following Plaintiff’s employment at Rosebud.
To establish the affirmative defense of failure to mitigate, Defendants must show both
that Plaintiff failed to exercise reasonable diligence and that comparable work was available. As
to the former, Plaintiff plainly failed to exercise reasonable diligence in tracking and reporting

28

his job-searching diligence, especially considering that Plaintiff was represented by counsel by at
least December 2011 (i.e., when this case was filed). Defendants formally requested information
regarding Plaintiff’s mitigation efforts sometime in 2012, and when Plaintiff first responded in
January 2013, he did not list any information about his efforts to seek employment after June
2008, except for the job that he secured at Party City in October 2011 (i.e., he did not list the
other jobs that he allegedly secured during that period—including his first stint at Party City in
2008, or his positions at Washington Inventory Service, Labor Ready, or Way To Go
Transportation—or any jobs that he applied for but did not get). It was not until August 2013 that
Plaintiff supplemented his responses to provide any information about his mitigation efforts,
claiming that he “d[id] not recall all the places at which he applied for employment,” but that he
“d[id] recall some places,” listing only the name, address, and phone number of nine Arizona
businesses.11 [See 261, at 1–2.] Plaintiff did not provide any information regarding his job-search
efforts in Chicago, despite the fact that he was unemployed and living in Chicago at the time he
filed that supplemental response, and had been for approximately one year. Plaintiff filed
additional supplemental discovery responses in September 2013 [261-1, at 34–35], adding
information about his work at Washington Inventory Service and Citywide Janitorial, and then
again in January 2015 [261-1, at 36–37], adding information about his work at 7-Eleven and
Goodwill, but in both instances still failed to disclose any additional information about his
mitigation efforts during the approximately four years he was unemployed.
The key consideration for purposes of Defendants’ affirmative defense is the extent to
which Plaintiff’s Phase II testimony about his vast mitigation efforts is credible. During Phase II,
11

At his deposition the following month, Plaintiff expanded his list of applications to include 16
businesses located in Arizona: Fry’s Food Store, Valero In The Zone, Target, Super Target, Walmart,
McDonald’s, Wendy’s, Auto Zone, Shell gas station, places within the San Tan Mall (Dillard’s, Macy’s,
and a theater), Sky Harbor Airport, Sprint, T-Mobile, and Pool City. [271-1, at 24–25, 28–29.]

29

Plaintiff testified that he spent five hours per day searching and applying for jobs from home
(using local newspapers and online searches), and then an additional three hours walking the
streets of nearby neighborhoods, searching and applying for jobs in person. If this is true,
Plaintiff’s mitigation efforts far exceeded what is necessary to show reasonable diligence.
However, Plaintiff’s discovery responses—even as supplemented over the years and including
Plaintiff’s deposition testimony—tell a different story, showing that Plaintiff’s only applied for
approximately 20 jobs in his four years in Arizona,12 and the only evidence of any job searching
in Chicago is the fact that Plaintiff was hired by Citywide Janitorial. If this version of the story is
true, then Plaintiff’s efforts to mitigate his damages likely fell short of what is required under the
law. For example, in Payne v. Security Savings & Loan Association, F.A., 924 F.2d 109, 111 (7th
Cir. 1991), the plaintiff was not diligent in seeking comparable employment when his efforts
“slowed to a trickle,” where he looked for employment only a few hours per week, contacting
only a dozen-or-so employers per year over a two-year span.
Defendants impeached Plaintiff with these vast discrepancies at trial, to which Plaintiff
testified that he “pretty much rushed through” his discovery responses. [Tr. Apr. 4, 2016, at 115–
19.] The only evidence that favors Plaintiff’s story is the fact that after he supplemented his
responses by listing a handful of businesses in Arizona to which he applied, Defendants
subpoenaed those businesses, and while only two responded (Walmart and Fry’s), they
confirmed that Plaintiff did in fact apply there. But this only substantiates, to some degree, the
named places where Plaintiff allegedly applied, which, even at trial, did not exceed a few dozen

12

It was revealed during Phase II that Plaintiff received unemployment benefits from the state of Illinois
in 2008 ($3,956.00), 2009 ($10,019.00), and 2010 ($4,728.00). Defendants imply that Plaintiff, who was
either living with his aunt(s) or his girlfriend at the time and thus not paying rent, was using these funds to
pay for the basic necessities of life, lessening his need to find a job. Plaintiff denied receiving any
unemployment benefits after January or February 2009, despite what was reported on his tax transcript.
[Tr. Apr. 5, 2016, at 392–94.]

30

businesses. This evidence does not substantiate Plaintiff’s claim that he spent eight hours per day
applying for jobs throughout his four years of unemployment, which would have yielded
hundreds if not thousands of applications.
Defendants further attack Plaintiff’s credibility by pointing to various false statements
that Plaintiff made on his job applications, including lies regarding his place of residence13 and
his criminal history (i.e., failing to disclose that he was a convicted felon). The Court agrees that
these lies, which Plaintiff admitted, cast a shadow on Plaintiff’s credibility (although Plaintiff’s
justification for these lies is that it made him a more viable candidate, which implies that
Plaintiff was, in fact, interested in getting a job). Defendants also impeached Plaintiff throughout
his Phase II testimony, highlighting various inconsistencies between that testimony and
Plaintiff’s discovery responses and deposition testimony. For example, Plaintiff testified that
Rosebud did not pay him overtime in many instances and that in some weeks he would work in
excess of 70 hours per week, but these statements are contradicted by Plaintiff’s time sheets and
payroll records, which show that he was paid all of his overtime wages and that he never worked
more than 70 hours per week (he topped out at 65.98 hours in September 2004 [261-1, at 7]).
While many of these impeachments can be chalked up to Plaintiff’s lack of diligence in fully
responding to discovery requests or his on-the-stand hyperbole (as opposed to sanctionable lies,
as Defendants argue), they all chip away at the credibility of Plaintiff’s Phase II testimony, and
thus strengthen Defendants’ efforts to show that Plaintiff failed to mitigate his damages.

13

Plaintiff’s girlfriend (who is the mother of his four children) was the recipient of government-funded
housing in Arizona, but as a term of that program, she was not allowed to house any convicted felons.
Defendants imply that Plaintiff changed his story about where he lived in Arizona (i.e., with his girlfriend
or with one or more of his aunts) to avoid exposing any wrongdoing on the part of his girlfriend. The
Court excluded testimony on this point at trial, but informed the parties that it would take this information
into consideration in awarding any equitable relief to Plaintiff.

31

Taking all of this into consideration, the Court concludes that Defendants successfully
established, in part, that Plaintiff failed exercise reasonable diligence in seeking comparable
employment. The sharp contrast between Plaintiff’s pre-trial discovery responses (beginning
with almost zero disclosed job applications and gradually advancing to several dozen) and his
Phase II testimony (describing a 40-hour week of job searching) raises a yellow flag as to
Plaintiff’s credibility. The hue of this yellow flag deepens when considering Defendants’
successful impeachment of Plaintiff’s testimony on multiple occasions, as well as the general
implausibility of Plaintiff’s Phase II testimony. Based on the militaristic description of Plaintiff’s
job-search efforts—a regimented eight-hour day spanning four years of unemployment,
constituting some 8,000 hours of job searching—it simply is not credible that Plaintiff could not
produce a single witness or document to corroborate the details of his search (no emails or letters
from prospective employers, no personal notes tracking applications, no copies of job
applications, etc.). While Plaintiff’s failure to track and report his mitigation damages may be
excusable, at least to some extent, before he entered into litigation (i.e., pre-2011 periods of
unemployed), his post-filing failures, when he was represented by counsel and subject to the
requirements of Rule 26, are not. This includes Plaintiff’s one-year period of unemployment
from August 2012 (when Plaintiff moved back to Chicago), until September 2013 (when
Plaintiff began working for Citywide Janitorial). The Court concludes that Defendants, having
successfully attacked Plaintiff’s credibility, have met their burden in showing that Plaintiff was
not reasonably diligent in seeking employment during the 13-month period spanning August
2012 to September 2013, while Plaintiff was unemployed and living in Chicago.
Once the Court discredits Plaintiff’s testimony regarding his post-filing job-search efforts
in Chicago, it becomes difficult to justify not discrediting Plaintiff’s identical pre-filing efforts in

32

Arizona as well. That is, Plaintiff testified that he followed the same job-search regimen (i.e.,
five hours of newspaper reading and online searching, followed by a three-hour foot patrol of the
area), during all of his periods of unemployment, both in Arizona and Chicago. However, as
mentioned, Plaintiff was not engaged in litigation during his gaps in employment from 2008
through 2011, and had not yet been served with discovery requests regarding his job-search
efforts. In addition, Plaintiff did provide the names of several dozen businesses where he did
apply during this period, and at least some of that testimony has been corroborated by the
subpoena responses from Walmart and Fry’s, substantiating Plaintiff’s story to some degree.
After a careful assessment of this conflicting evidence, the Court finds that Plaintiff’s job search
efforts between 2008 and 2011 fell somewhere between the hyperbolized story that Plaintiff
presented in his Phase II testimony and the “trickle” of applications deemed unreasonable in
Payne, likely closer to the latter.
If the Court were to credit Plaintiff’s testimony only to the extent that he was able to
recall the name of the businesses to which he applied—and thus discredit Plaintiff’s testimony as
far as it relates to the hundreds of businesses whose names he could not recall—that would leave
Plaintiff with several dozen applications from 2008 to 2011. But the Seventh Circuit held in
Payne that 10 or 12 applications per year was insufficient to show reasonable diligence. Payne,
924 F.2d at 111. Plaintiff testified, however, that he applied to these businesses every six months
or so, which would increase his application tally from 10 or 12 per year to 60 or 70 per year, and
thus arguably within the sphere of reasonableness. But the records that Defendants subpoenaed
do not support Plaintiff’s testimony. That is, Fry’s Food Store produced only one application
from Plaintiff dated November 8, 2009. And while Walmart produced four applications, Plaintiff

33

testified that only one of those applications was actually his (implying that more than one
“Robert Smith” has applied at Walmart).
That being said, the Seventh Circuit has instructed that if a plaintiff proves discrimination
or retaliation, back pay may only be denied “for reasons which, if applied generally, would not
frustrate the central statutory purposes of eradicating discrimination * * * and making persons
whole.” EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872, 880 (7th Cir. 1994).
While Plaintiff’s lack of corroborating evidence is troubling, Plaintiff was under no obligation to
take or keep notes about his job hunt during this period in time. And while Plaintiff could only
remember several dozen of the places to which he applied over a three-year period, see
Stragapede v. City of Evanston, 125 F. Supp. 3d 818, 825 (N.D. Ill. 2015) (plaintiff adequately
mitigated his damages by “submit[ing] dozens of job applications” in approximately a one-year
period), his testimony and even his discovery responses came several years after the relevant
time period, and thus Plaintiff’s lapse in memory is not altogether unforgivable. The two
subpoenaed applications refute Plaintiff’s statement that he applied to each business more than
once, but two subpoena responses do not constitute a representative data set. While Defendants
successfully impeached Plaintiff’s credibility on several occasions, and while the Court agrees
that Plaintiff hyperbolized his job-search efforts, the Court nonetheless concludes that
Defendants have not met their burden in showing that Plaintiff did not exercise reasonable
diligence in regard to Plaintiff’s pre-litigation efforts in Arizona from 2008 through 2011. To
hold otherwise would put an unnecessary burden on plaintiffs to produce documentary evidence
of their pre-litigation job-search efforts, and would frustrate the statutory purposes of eradicating
discrimination and making discrimination victims whole. See Hutchison, 42 F.3d at 1044; O&G
Spring & Wire Forms Specialty Co., 38 F.3d at 880.

34

Having addressed Plaintiff’s job-search efforts, the Court must next address the second
element of Defendants’ affirmative defense: whether there was a reasonable likelihood that
Plaintiff might have found comparable work by exercising reasonable diligence. Because the
Court already concluded that Plaintiff exercised reasonable diligence during his periods of
unemployment in Arizona from 2008 to 2011 but not during his period of unemployment in
Chicago from August 2012 to September 2013, the only relevant question is whether comparable
work was available to Plaintiff during that latter period. Defendants rely on their expert witness,
Dr. Cohen, for this information.
Dr. Cohen is the President of Employment Research Corporation out of Ann Arbor,
Michigan, which is a firm that specializes in employment research. Dr. Cohen obtained a Ph.D.
in economics from MIT with specialties in econometrics and labor economics. He has worked
for the U.S. Bureau of Labor Statistics; taught classes in statistics, economics, labor market
information, human resource management, and econometrics; has written dozens of articles and
books on labor market issues; has been a consultant and/or expert in over 1,000 audits and/or
cases on labor issues; and has been a testifying expert in hundreds of discrimination cases
regarding labor markets. In this case, Defendants asked Dr. Cohen to evaluate the labor market
for occupations relevant to Plaintiff during all relevant times. Again, while Dr. Cohen’s opinion
covered both Maricopa County in Arizona and Chicago, Illinois, only the latter market is
relevant for the Court’s purposes, and only as it relates to the period from August 2012 to
September 2013.
To assess the availability of comparable employment openings, Dr. Cohen searched for
entry-level positions in the following areas: Service Occupations (which includes cooks,
dishwashers, janitors, etc.); Sales and Related Occupations and Office and Administrative

35

Support Occupations (which includes counter and rental clerks, shipping and receiving clerks,
stock clerks, and order fillers), and Production, Transportation, and Material Moving
Occupations (which includes laundry workers, production workers, vehicle and equipment
cleaners, laborers, material movers, machine feeders, packagers, etc.). For the years 2012 and
2013, Dr. Cohen reported that, in the city of Chicago, there were job advertisements for 11,598
and 18,751 of the aforementioned occupations, respectively. Dr. Cohen also reported that the
average unemployment rate in Chicago in 2012 was 10.1 percent.
Plaintiff criticizes Dr. Cohen’s lack of nuance in his statistical reporting, referring to his
“expert opinion” as a “generalized labor market analysis” that fails to show whether comparable
work existed. For example, Dr. Cohen does not offer any geographical distinctions in his bulk
reporting of job advertisements in Chicago. Because Chicago is a rather large city, a certain
number of the available jobs likely were too far from Plaintiff’s home to be considered
comparable positions. Nor did Dr. Cohen discuss the wages or hours of the available positions.
See NLRB v. Midwestern Personnel Servs., Inc., 508 F.3d 418, 427 (7th Cir. 2007) (questioning
the relevance of a similar report from Dr. Cohen that collected statewide employment data,
noting that the report “did not provide specific data for the relevant geographical areas” and it
lacked “any information regarding the hours, wages, and locations of the supposedly available
positions”). Further, despite acknowledging that Plaintiff would not be a match for all open
positions, Dr. Cohen made no adjustments to his report on that basis. Dr. Cohen also failed to
consider the fact that Plaintiff is African-American and a convicted felon.14

14

Defendants argue that these details are irrelevant because (a) Plaintiff never had a face-to-face
interview, and so his race would not have been disclosed to any of the potential employers, and
(b) Plaintiff testified that he lied about his criminal history on his job applications, and so his prospective
employers would not have based their hiring decisions on that factor either. But had a prospective
employer considered hiring Plaintiff based on his application, the employer likely would have interviewed
Plaintiff at some point, and perhaps would have run a background check on Plaintiff, thus exposing any

36

Before assessing Dr. Cohen’s opinion, the Court notes that the parties said very little
about what constitutes “comparable” work for Plaintiff. The Seventh Circuit has referred
to “comparable work” as a position that affords “virtually identical promotional opportunities,
compensation, job responsibilities, working conditions and status” as the previous
position. Hutchison, 42 F.3d at 1044. Plaintiffs are not obliged to “go into another line of work,
accept a demotion, or take a demeaning position.” Ford Motor Co. v. EEOC, 458 U.S. 219, 231
(1982). Plaintiff questions why Dr. Cohen considered non-butcher jobs to be comparable to
Plaintiff’s job at Rosebud, but Plaintiff has failed to persuade the Court that the only comparable
jobs for Plaintiff would be butcher jobs. Plaintiff testified at trial that he was hired into an entrylevel position at Rosebud Farmstand, and he remained at this same entry-level position, earning
the minimum wage, throughout his time at Rosebud. Based on this information, a liberal reading
of what constitutes “comparable” work would include all entry-level positions that paid the
minimum wage and involved indoor work with limited manual labor. While some of the
subcategories in Dr. Cohen’s “comparable” categories include occupations that arguably fall
outside of this scope (e.g., landscaping), the majority of the positions, at least at face value,
appear to be “comparable”—e.g., they are consonant with Plaintiff’s skills and involve
conditions that are not substantially more onerous than his position at Rosebud Farmstand.
Regardless, based on the alleged shortcomings articulated above, Plaintiff urges the Court
to strike Dr. Cohen’s report and his expert opinions. Federal Rule of Evidence 702 and the
Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), provide the legal framework for the admissibility of expert testimony. See Bielskis v.
Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011); United States v. Pansier, 576 F.3d

lies he might have told about his criminal history. In short, these factors are relevant to Plaintiff’s
employment prospects.

37

726, 737 (7th Cir. 2009). Rule 702 requires that the district judge act as a “‘gatekeeper’ who
determines whether proffered expert testimony is reliable and relevant before accepting a witness
as an expert.” Winters v. Fru-Con Inc., 498 F.3d 734, 741–42 (7th Cir. 2007) (quoting Autotech
Tech. Ltd. P’ship v. Automationdirect.com, 471 F.3d 745, 749 (7th Cir. 2006)); see also Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49 (1999); Daubert, 509 U.S. at 589.
In reviewing a motion to exclude testimony under Rule 702, the district court must
“ascertain whether the expert is qualified, whether his or her methodology is scientifically
reliable, and whether the testimony will ‘assist the trier of fact to understand the evidence or to
determine a fact in issue.’” Bielskis, 663 F.3d at 893–94 (quoting Fed. R. Evid. 702); see also
Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (outlining the “three-step
analysis” for assessing the admissibility of expert testimony). “The proponent of the expert bears
the burden of demonstrating that the expert’s testimony would satisfy the Daubert standard.”
Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). District judges possess
considerable discretion in dealing with expert testimony. Carroll v. Otis Elevator Co., 896 F.2d
210, 212 (7th Cir. 1990); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–43 (1997)
(holding that abuse of discretion standard applies in reviewing district court rulings on
admissibility of proposed Rule 702 opinion testimony).
Daubert lists a number of relevant considerations in evaluating an expert’s reasoning and
methodology, including testing, peer review, error rates, and acceptability in the relevant
scientific community. Daubert, 509 U.S. at 593–94. “[T]he test of reliability is flexible,”
however, “and Daubert’s list of specific factors neither necessarily nor exclusively applies to all
experts or in every case.” Kumho, 526 U.S. at 141 (internal quotation omitted). “Rather the law
grants a district court the same broad latitude when it decides how to determine reliability as it

38

enjoys in respect to its ultimate reliability determination.” Id. at 142 (emphasis omitted); see also
Pansier, 576 F.3d at 737 (noting that the Seventh Circuit “gives the [district] court great latitude
in determining not only how to measure the reliability of the proposed expert testimony but also
whether the testimony is, in fact, reliable” (emphasis omitted) (citing Jenkins v. Bartlett, 487
F.3d 482, 489 (7th Cir. 2007))); Lewis, 561 F.3d at 704–05 (“[T]he law grants the district court
great discretion regarding the manner in which it conducts that [Daubert] evaluation.” (citation
omitted)).
In assessing the admissibility of proposed expert testimony, the Court’s “focus, of course,
must be solely on principles and methodology, not on the conclusions that they generate.”
Daubert, 509 U.S. at 595. However, as the Supreme Court has recognized, “conclusions and
methodology are not entirely distinct from one another,” and while “[t]rained experts commonly
extrapolate from existing data[,] * * * nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert.” Gen. Elec., 522 U.S. at 146. In other words, “[a]n expert who supplies
nothing but a bottom line supplies nothing of value to the judicial process.” Wendler & Ezra,
P.C. v. Am. Int’l Grp., Inc., 521 F.3d 790, 791–92 (7th Cir. 2008) (quoting Mid-State Fertilizer
Co. v. Exch. Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)). In short, “[i]t is critical under
Rule 702 that there be a link between the facts or data the expert has worked with and the
conclusion the expert’s testimony is intended to support.” United States v. Mamah, 332 F.3d 475,
478 (7th Cir. 2003). Where that link is missing, “[a] court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.” Gen. Elec., 522 U.S. at 146.
The Court agrees with Plaintiff that Dr. Cohen’s testimony should be stricken, and the
Court’s Daubert analysis for reaching that conclusion is relatively straightforward. That is, the

39

fault in Dr. Cohen’s report is that it just isn’t useful. All that Dr. Cohen provides is unrefined
data: a raw number of yearly job advertisements in Chicago (the whole city, presumably), and
the city’s unemployment rate. While that is a good starting point, the amorphous number of job
advertisements, absent any cogent points of reference, tells the Court very little about whether
Plaintiff had a legitimate opportunity to secure those jobs had he applied. If the number had
been, say, 7,000 instead of 11,000 in a given year, how, if at all, would that have impacted
Plaintiff’s likelihood of finding comparable employment? And there are numerous nuances
particular to this case that Dr. Cohen did not consider (because he was not asked to), such as
Plaintiff’s specific attributes (e.g., his location within Chicago, his race, and his criminal
history), as well as specifics about the job advertisements (e.g., the available hours, wage, job
location, job duties, applicant pool, etc.). Also unhelpful is Dr. Cohen’s recounting of Chicago’s
unemployment rate—a fact that the Court easily could locate on its own—which he referenced to
support his conclusion that the job market in Chicago was, at times, “pretty good.” [Tr. Apr. 4,
2016, at 340.]
Theoretically, Dr. Cohen’s unrefined data could be useful if Defendants manipulated the
data into a cohesive argument. But that didn’t happen here. Instead, Defendants conclude from
Dr. Cohen’s data that there were, in fact, comparable jobs available to Plaintiff in all markets at
all times. Surely, if Dr. Cohen had offered this opinion based on the data provided, the Court
would strike the opinion under Daubert because admitting any conclusions based on Dr. Cohen’s
unrefined data would be tantamount to admitting opinion evidence that is connected to existing
data only by the ipse dixit of the expert. Gen. Elec., 522 U.S. at 146. Here, Defendants stop short
of asking Dr. Cohen to make that conclusion, and instead offer the conclusion themselves. But
whether the conclusion represents the ipse dixit of the expert or the ipse dixit of Defendants or

40

their lawyers, it is still inadmissible. Thus, even if the Court didn’t strike Dr. Cohen’s “opinions”
under Daubert, Defendants would still fall short of achieving their evidentiary burden.
Put differently, with or without their expert to rely upon, Defendants offer little to satisfy
the second prong of their failure to mitigate defense. To be clear, the Court is not saying that
there were not comparable positions available to Plaintiff at the relevant times, it merely
concludes that Defendants have failed to meet their burden to establish that fact. And because
Defendants “must prove both that the claimants were not reasonably diligent in seeking other
employment, and that with the exercise of reasonable diligence there was a reasonable chance
that the claimants might have found comparable employment,” Defendants’ failure to mitigate
defense fails. EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818–19 (7th Cir. 1990) (“We agree with
the district court that, because Gurnee failed to establish that there was a reasonable chance the
claimants could have found comparable employment, the defendant failed to sustain its burden of
proof.”); see also Stragapede, 125 F. Supp. 3d at 825 (concluding that the plaintiff failed to
exercise reasonable diligence to find work over a certain period of time, but nonetheless denying
the defendant’s failure to mitigate defense because it failed to show that there was a reasonably
likelihood that the plaintiff might have found comparable work).
c.

Other Reductions

Defendants also argue that the Court should limit Plaintiff’s equitable award based on the
fact that he voluntarily quit or abandoned several jobs. For example, Plaintiff allegedly quit his
job at Washington Inventory Service (where he earned $387.00 in wages in 2009) because the
vehicle he was using to get to this job broke down, and thus he lost his only viable source of
transportation. Defendants argue that they should not be penalized by Plaintiff’s failure to
procure transportation. The Court disagrees. In theory, there are instances where a vehicle failure

41

would not justify quitting a job for mitigation purposes—for example, if Defendants established
that Plaintiff had sufficient funds to repair the vehicle but elected not to, or if the job was
accessible through public transportation, or if Plaintiff had offers to carpool with nearby coworkers, etc. But Defendants did not make any such arguments here. To the contrary, Plaintiff
testified that he was using his aunt’s car to drive from Gilbert, AZ to Tempe, AZ for his job at
Washington Inventory Service. It could be that without his aunt’s generosity, Plaintiff would not
have been able to accept the job in the first place. Plaintiff’s reason for quitting does not conflict
with his duty to mitigate his damages.
Similarly, Defendants argue that Plaintiff should not receive back pay for the period of
time he was enrolled in college, when he voluntarily removed himself from the workforce.
Plaintiff testified that in the fall of 2010, he left his job at Labor Ready to enroll at Chandler–
Gilbert Community College because he “was having problems finding a job” and he “felt that
enrolling in school would help [him] find a job.” [Tr. Apr. 4, 2016, at 32.] Plaintiff testified that
he was enrolled full time at this college from September 2010 until the fall of 2011, and that he
was not looking for jobs during this period. [Tr. Apr. 4, 2016, at 145–47.] On one hand, an
employee “cannot just leave the labor force after being wrongfully discharged in the hope of
someday being made whole by a judgment.” Hutchison, 42 F.3d at 1044. On the other hand, the
Seventh Circuit affirmed a district court’s order concluding that a plaintiff was entitled to back
pay while attending school. Hanna v. Am. Motors Corp., 724 F.2d 1300, 1308 (7th Cir. 1984). In
Hanna, the plaintiff was unemployed at the time he enrolled in school, and his reasoning for
entering school was not to “reap greater future earnings,” but because he “didn’t have a job * * *
and it was a means of getting some money” in the form of certain veterans’ benefits that he
received for enrolling. Id.; see also Dailey v. Societe Generale, 108 F.3d 451, 457 (2d Cir. 1997)

42

(“We believe that a fact-finder may, under certain circumstances, conclude that ‘one who
chooses to attend school only when diligent efforts to find work prove fruitless,’ satisfies his or
her duty to mitigate.” (citations omitted)); Miller v. AT&T Corp., 250 F.3d 820, 839 (4th Cir.
2001) (“[T]he central question a court must consider when deciding whether a student-claimant
has mitigated [his] damages is whether an individual’s furtherance of [his] education is
inconsistent with [his] responsibility to use reasonable diligence in finding other suitable
employment.” (citation omitted)).
Here, Plaintiff is distinguishable from the plaintiff in Hanna because Plaintiff quit his job
at Labor Ready in order to enroll in college, curtailing his present earning capacity to do so.
However, Plaintiff had only just begun working at Labor Ready (a temp agency where he earned
a total of $78.00), and Plaintiff’s total earnings in the two-year period preceding his enrollment
totaled only $1,291.07, representing a drastic drop from his yearly earnings at Rosebud. Further,
Plaintiff testified that despite his efforts to obtain entry-level positions during the recession years
of 2008 and 2009, he surmised that he “didn’t fit the candidate that [prospective employers] were
looking for” because he didn’t have a college education. [Tr. Apr. 5, 2016, at 249.] Regardless of
whether Plaintiff’s impressions were correct, the Court cannot say that his decision to enroll in
college was inconsistent with his duty to mitigate his damages, despite having voluntarily left his
position with the temp agency. Thus, the Court concludes that Plaintiff’s back pay award should
not be reduced during the period in which he was enrolled in college.
Defendants also argue that Plaintiff’s equitable relief should be limited for the instances
when he voluntarily relocated from Arizona to Chicago and back again. Specifically, Plaintiff
quit his job at Way To Go Transportation in August 2012 to move to Chicago, but then did not
start working again until more than a year later in September 2013. (By contrast, although

43

Plaintiff left Citywide Janitorial in June 2014 to move back to Arizona, he began working at
7-Eleven in Arizona that same month, leaving no measurable gap in work.) As to the 13-month
gap following Plaintiff’s initial move to Chicago, Plaintiff gave a reasonable explanation for his
decision to relocate, which was that he became eligible for government-subsidized housing in
Chicago that he had applied for before moving to Arizona (although he later returned to Arizona
because the Chicago neighborhood was to crime-ridden). Taking advantage of governmentsubsidized housing—especially when Plaintiff applied for the housing before he left Chicago—is
not inherently inconsistent with Plaintiff’s duty to mitigate his damages, and Defendants have
not convinced the Court otherwise. As such, Plaintiff’s back pay award will not be reduced based
on his relocations between Chicago and Arizona.
Further, Defendants suggest that the Court should deduct Plaintiff’s unemployment
benefits from his back pay award. Plaintiff collected unemployment compensation from the
Illinois Department of Employment Security in the amount of $3,956 in 2008, $10,019 in 2009,
and $4,728 in 2010. Whether to deduct unemployment compensation from an award of back pay
is within the discretion of the trial court. See Hunter v. Allis–Chalmers Corp., 797 F.2d 1417,
1428–29 (7th Cir. 1986) (“The majority of the other circuits * * * hold that unemployment
benefits may never be deducted from backpay. * * * [T]his circuit’s rule, which allows the
district judge in his discretion to deduct or not deduct unemployment benefits in Title VII cases
(and, we may assume, substantively similar section 1981 cases), may be unduly favorable to
defendants.”); see also Stragapede v. City of Evanston, 125 F. Supp. 3d 818, 826–28 (N.D. Ill.
2015) (offsetting unemployment benefits would confer a “discrimination bonus” on the
defendant). The Court is persuaded by the reasoning in Stragapede, and exercises its discretion
in declining to deduct Plaintiff’s unemployment benefits from his back pay award.

44

Finally, Defendants argue that Plaintiff is not entitled to any equitable award because he
“thoughtfully prepared his decision to quit while still employed.” [279, at 36.] Defendants rely
on EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1996), where the Seventh
Circuit held that an employee who planned to quit prior to being discharged was not entitled to
back pay. But the evidence here does not support Defendants’ argument. In Ilona of Hungary,
the plaintiff took active steps towards preparing for a new job after she was terminated by
acquiring a site and applying for a zoning permit to build a sandwich shop. Id. Here, Defendants’
counsel elicited testimony from Plaintiff on cross-examination that he talked to his girlfriend and
his children about moving to Arizona before doing so. [Tr. Apr. 4, 2016, at 86.] But this
admission lacks any substantive detail, such as when Plaintiff spoke about moving to Arizona,
what those conversations entailed, and what, if any, steps he took to facilitate that move. While
the Court acknowledges that Defendants’ theory raises a yellow flag as to the timing of events
leading up to Plaintiff’s move—i.e., Plaintiff was convicted of a felony in 2006, and the terms of
his probation meant that he could not leave the state of Illinois until January, 2008, which is
when he filed his charge of discrimination—Defendants have not provided sufficient evidence to
advance this theory into a cognizable defense.
d.

Back Pay Calculation

The Court calculated Plaintiff’s back pay at $107,763.00. After deducting $38,001.20 for
the amount Plaintiff earned during the relevant period, the Court concludes that Plaintiff is
entitled to back pay in the amount of $69,761.80.
e.

Prejudgment Interest

Plaintiff also requests prejudgment interest as part of his equitable relief. Prejudgment
interest is presumptively available for violations of federal law. See Shott v. Rush–Presbyterian–

45

St. Luke’s Med. Ctr., 338 F.3d 736, 745 (7th Cir. 2003). However, “the decision whether or not
to award such interest is within the discretion of the trial court.” Taylor, 593 F.2d at 787 (finding
no abuse of discretion where district court refused to award prejudgment interest). The decision
“turns upon whether the amount of damages is easily ascertainable.” Gurnee, 914 F.2d at 820
(quoting Donnelly v. Yellow Freight Sys., 874 F.2d 402, 411 (7th Cir. 1989)). Here, the Court
concludes that Plaintiff is entitled to prejudgment interest on his back pay award of $69,761.80.
When calculating prejudgment interest, the Seventh Circuit directs courts to use the
prime rate. Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 820 (7th Cir. 2002). Prejudgment
interest also should be compounded monthly. See Gracia v. Sigmatron Int’l, Inc., 130 F. Supp.
3d 1249, 1263 (N.D. Ill. 2015). The Court awards prejudgment interest on the back pay award at
a rate of 3.35 percent,15 compounded monthly for the approximately 90-month period spanning
from June 28, 2008 to December 15, 2015,16 totaling $19,894.77 in interest.
2.

Front Pay

Plaintiff also requests front pay as part of his claim for equitable relief. Front pay, which
is a substitute for reinstatement where reinstatement is inappropriate, “represents the wages the
plaintiff would have earned had [he] not been fired measured from the date of the judgment to
some reasonable point in the future.” Gracia, 130 F. Supp. 3d at 1255. Put another way, front
pay is “the discounted present value of the difference between the earnings an employee would
have received in his old employment and the earnings he can be expected to receive in his
present and future, and by hypothesis, inferior employment.” Williams v. Pharmacia, Inc., 137
15

This is the average of the prime rates between June 2008 and December 2015. See Board of Governors,
Federal Reserve System, Historical Data, Selected Interest Rates, http://www.federalreserve.gov/releases/
h15/data.htm (last visited Sept. 9, 2016) (download spreadsheet for “Bank prime loan” at hyperlink for
“monthly” data).

16

Although judgment has not yet been entered due to the delay in adjudicating Phase II of the trial, the
Court exercises its discretion in setting the cut-off point for pre-judgment interest at the 90-month mark,
which incorporates the jury’s verdict on liability.

46

F.3d 944, 953 (7th Cir. 1998) (internal alterations omitted). The award “must be grounded in
available facts, acceptable to a reasonable person and not highly speculative.” Downes v.
Volkswagen of Am., Inc., 41 F.3d 1132, 1142 (7th Cir. 1994). Front pay awards often are limited
in duration, and are awarded for “a reasonable period of time, until a date by which the plaintiff,
using reasonable diligence, should have found comparable employment.” Williams, 137 F.3d at
954 (quoting Ward v. Tipton Cnty. Sheriff Dept., 937 F. Supp. 791, 796 (S.D. Ind. 1996)); see
also Biondo v. City of Chicago, 382 F.3d 680, 691 (7th Cir. 2004) (“Front pay cannot extend past
the time a reasonable person needs to achieve the same or an equivalent position in the absence
of discrimination.”); Hutchison, 42 F.3d at 1045 (holding that a denial of front pay was
reasonable when the jury “may reasonably have set a date between termination and judgment by
which [the employee], using reasonable diligence, should have found ‘comparable’
employment”). In other words, “[t]he familiar common law duty of mitigating damages is
imposed: the employee must make a diligent search for comparable employment.” Mattenson v.
Baxter Healthcare Corp., 438 F.3d 763, 771 (7th Cir. 2006) (the claimant must “present
persuasive evidence of inability to find a substitute job”).
Plaintiff requests $550,819.00 in front pay. Plaintiff calculates front pay by assuming that
he would have worked at Rosebud Farmstand until his retirement at age 65 (25 years in total,
spanning from 2017 until 2041), earning $8.25 per hour, 40 hours per week, 52 weeks per year,
plus 15 hours of weekly overtime paid at time and a half, less $4,780 per year based on
Plaintiff’s average annual earnings over the past eight years.
The Court concludes that Plaintiff is not entitled to front pay because he has successfully
mitigated his damages. At the time of trial, Plaintiff was employed by Labor Ready in Tempe,
AZ, where he had been working for the past 12 months. Labor Ready pays Plaintiff $8.50 per

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hour, which is more than the $8.25 minimum wage in Illinois. In the nine months that Plaintiff
worked at Labor Ready in 2015, he earned a total of $11,237.77, and in the first three months of
2016, Plaintiff earned $4,237.00. By way of comparison, Plaintiff earned $12,338.84 at Rosebud
in 2007, which was the relevant timeframe that the Court used for determining Plaintiff’s
average work week (i.e., after Plaintiff requested a reduction in hours). In short, at the time of
trial, Plaintiff had maintained a comparable job for more than 12 months that afforded him a
salary (adjusted for inflation) equal to or greater than that of what he was likely to earn had he
continued to work at Rosebud Farmstand.
Plaintiff’s success in gaining comparable employment at Labor Ready was no fluke.
Indeed, Plaintiff maintained a job at Citywide Janitorial in Chicago for 10 months before he
decided to move back to Arizona. And after Plaintiff’s move in June 2014, he immediately found
work at 7-Eleven and, despite being terminated from that job five months later, found another
job the following month at Goodwill. Similarly, after his four-month stint at Goodwill ended,
Plaintiff started work at his current job at Labor Ready the following month. In other words,
Plaintiff has stayed consistently employed since September 2013, demonstrating his ability to
find, secure, and sustain comparable employment. Again, Plaintiff is only entitled to front pay up
until the point when he should have found comparable employment. After several years of
difficulty in the job market, Plaintiff has done so. Based on Plaintiff’s proven success in gaining
comparable employment, the Court concludes that he is not entitled to front pay.
Plaintiff’s request for front pay also must be denied because Plaintiff failed to provide the
Court with an appropriate discount rate—i.e., the discounted present value of his proposed future
earnings. “[W]hen a party fails to provide the district court with the essential data necessary to
calculate a reasonably certain front pay award, the court may deny the front pay request.”

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McKnight, 973 F.2d at 1372. “Such information includes the amount of the proposed award, the
length of time the plaintiff expects to work for the defendant, and the applicable discount rate.”
Id. (emphasis added); see also Stragapede, 125 F. Supp. 3d at 833 (“Although it might seem like
a technical requirement, the failure to provide the discount rate is grounds for refusing to award
front pay.”). Plaintiff acknowledges his duty to provide a discount rate, but says that “instead of
applying a discounted rate for the time value of money by receiving tomorrow’s wages today, the
plaintiff will simply utilize the same hourly rate of $8.25 for the next 25 years.” [280-25, at 3
n.2.] Plaintiff does not provide any legal authority to support his attempted side-stepping of this
well-established requirement, and the Court is not inclined to credit Plaintiff’s efforts here.
Plaintiff failed to provide the Court with information necessary to calculate his front pay award,
and thus his claim for front pay is denied on this basis as well.
3.

Unpaid Overtime

Plaintiff testified at trial that on many occasions he worked up to 25 hours of overtime
per week, but was not paid time-and-a-half. To combat Plaintiff’s testimony, Defendants
produced copies of Rosebud’s payroll records showing the number of regular and overtime hours
that Plaintiff worked while employed by Rosebud, as well as the corresponding wages paid. [See
261-1; 282-1.] The records show that Plaintiff was paid time-and-a-half for all overtime hours
worked, as set forth in the chart above. Plaintiff has not provided any credible evidence in
response. Further, Plaintiff has failed to explain how these alleged unpaid overtime wages are
related to his claims in this lawsuit. The Court concludes that Plaintiff is not entitled to any
allegedly unpaid overtime wages.

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4.

Negative Tax Consequences

Plaintiff requests that Defendants compensate him for the negative tax consequences
associated with receiving a large lump-sum payment of back pay. Plaintiff cites EEOC v.
Northern Star Hospitality, Inc., 777 F.3d 898, 904 (7th Cir. 2015), where the Seventh Circuit
joined the Third and Tenth Circuits in holding that a district court has the authority to issue a taxcomponent award to Title VII plaintiffs to compensate for the negative consequences of
receiving lump-sum awards of back pay, which are taxable as wages in the year received.
However, the Seventh Circuit frowned upon the district court’s failure to explain how it decided
to award plaintiff a tax-component equal to 15 percent of the back pay award, advising that “it
would be wise for district courts to show their work if and when they adjudge similar taxcomponent awards in the future.” Id. Here, Plaintiff provides no guidance as to how the Court
might go about calculating an appropriate tax-component, suggesting instead “that the parties
work together to agree to the plaintiff’s extra taxes.” [278, at 40.] The Seventh Circuit has held
that “when a party fails to provide the district court with the essential data necessary to calculate
a reasonably certain [equitable damages] award, the court may deny the * * * request.”
McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992). While McKnight dealt
with front pay, the principle is the same. Because this Court cannot compensate Plaintiff for his
negative tax consequences without explaining its calculation, and because Plaintiff has failed to
provide the Court with the data necessary to make that calculation, Plaintiff’s request is denied.
5.

Attorneys’ Fees

A prevailing plaintiff in a Title VII of § 1981 action is entitled to attorneys’ fees and
costs that are directly attributable to those claims. 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988(b).
If Plaintiff wishes to pursue attorneys’ fees in this case, he must file a separate fee petition with

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the Court addressing his entitlement to such fees, and the Court will set a briefing schedule on
Plaintiff’s motion at that time.
6.

Unclean Hands Defense

As mentioned above, as part of this omnibus order, the Court granted Plaintiff’s motion
[274] to amend its answer to add an “unclean hands” defense. As to the merits of that defense,
Plaintiff argues that the unclean hands doctrine “closes the door of a court of equity to one
tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however
improper may have been the behavior of the defendant.” [279, at 29 (quoting ABF Freight
System, Inc. v. NLRB, 510 U.S. 317, 329–30 (1994)).]
As discussed in detail above, while the Court admonishes Plaintiff for his incomplete
discovery responses and the inconsistencies between his trial testimony and his averments before
trial—indeed, the Court discredited much of Plaintiff’s Phase II testimony on this basis—the
Court concludes that Plaintiff’s discovery shortcomings and testimonial inconsistencies do not
rise to the level that would justify denying him all equitable relief. See, e.g., Great Western
Cities, Inc. v. Binstein, 476 F. Supp. 827, 833–34 (N.D. Ill. 1979) (unclean hands defense was
appropriate where plaintiff sought equitable relief “under a heavy cloud of massive land fraud
allegations” that he “repeated[ly] fail[ed] to deny”); Am. Hosp. Supply Corp. v. Hosp. Prods.
Ltd., 780 F.2d 589, 601 (7th Cir. 1986) (“[T]he doctrine is not to be used as a loose cannon,
depriving a plaintiff of an equitable remedy to which he is otherwise entitled merely because he
is guilty of unrelated misconduct.”).
IV.

Conclusion
For the reasons stated above, Defendants’ motions for judgment as a matter of law [237,

238, 242, 243] are denied. Upon review of the parties’ presentations at trial and their post-trial

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briefing, the Court awards Plaintiff $69,761.80 in back pay and $19,894.77 in prejudgment
interest. In addition, Defendants’ motion to supplement the Phase II record [272] is granted,
Defendants’ motion to amend their answer [274] is granted, and Plaintiff’s motion to strike [288]
is denied. With these matters decided, final judgment will be entered in favor of Plaintiff. The
parties have until October 7, 2016 to file any Rule 59 motions, responses are due November 4,
2016, and replies are due November 18, 2016.

Dated: September 9, 2016

____________________________________
Robert M. Dow, Jr.
United States District Judge

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