DOLORES DELOUGHERY, Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant.
Nos. 04-2657 & 04-2876
United States Court of Appeals For the Seventh Circuit
ARGUED JUNE 1, 2005—DECIDED SEPTEMBER 7, 2005
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 2722—Matthew F. Kennelly, Judge.
RIPPLE, Circuit Judge. Dolores Deloughery brought this action against her employer, the City of Chicago (the City), after the City failed to promote her to the rank of captain within the Chicago Police Department (CPD). Ms. Deloughery contended that the City had retaliated against her, in violation of Title VII of the Civil Rights Act of 1964,
I
BACKGROUND
A. Facts
Ms. Deloughery, who is Hispanic, was hired by CPD in 1982. In 1995, she attained the rank of lieutenant. Following her promotion to lieutenant, Ms. Deloughery was assigned to work with CPD’s community policing program. She did this work in a position at the police training academy and was assigned additional responsibilities at the academy as time passed.
In 1998, Ms. Deloughery was accused of having interfered in the physical fitness tests being completed by her sister who was applying to work for CPD. After the incident, she was moved from her position at the academy to a position as a lieutenant in the 18th district. Later, she was reassigned to be commanding officer of Area 5 youth investigations. In February 2000, Ms. Deloughery was transferred from her position as commanding officer for Area 5 youth back to a patrol position.
Later in 2000, Ms. Deloughery filed an internal complaint of sex and national origin discrimination (the internal complaint). Still later in 2000, Ms. Deloughery filed charges of discrimination (the 2000 IDHR charges) with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC). She claimed that her February 2000 transfer to a patrol
Throughout most of her employment with CPD, Ms. Deloughery was a board member of the Chicago Police Women’s Association (CPWA), a group organized to voice the concerns of women working within the CPD. In 1998 and 1999, CPWA board members, including Ms. Deloughery, met with CPD Superintendent Terry Hillard. During both meetings, Ms. Deloughery’s role was to bring up the lack of women in the upper ranks of the CPD. Also in 1999, she and others approached Hillard to inform him that some CPWA members believed that they were being penalized for participating in the group. CPWA members had meetings with Hillard after Ms. Deloughery filed the internal complaint and the 2000 IDHR charges, but she did not participate in those meetings.
In July 2000, CPD announced that it would accept applications from lieutenants for promotion to captain; Ms. Deloughery submitted an application. In the written component of her application, Ms. Deloughery emphasized her leadership in the CPWA. Applicants for the captain position also underwent a series of interviews with CPD district commanders.
After interviewing candidates, the district commanders each submitted to Hillard a list ranking candidates according to their suitability for promotion. Hillard, however, was free to exercise full discretion with respect to promotions, without being constrained by the district commanders’ recommendations. Hillard testified that he made promotion decisions based on the candidates’ applications, the candidates’ employment files, the district commanders’ lists and his own personal knowledge of the candidates. He claimed
In December 2000, CPD promoted thirty-three candidates to captain. In January 2001, CPD promoted thirty-five more candidates to captain. Ms. Deloughery was not promoted in either group. After the CPD made the first two rounds of promotions, Ms. Deloughery filed charges with IDHR and EEOC claiming that she had been subject to retaliation. Marie Johnston, another CPD employee who was not promoted to captain, also filed charges making the same allegation as Ms. Deloughery.
B. District Court Proceedings
After securing a right to sue letter from the EEOC, Ms. Deloughery and Johnston filed this action. Because the City’s appeal concerns only Ms. Deloughery’s claims, we have focused on Ms. Deloughery and shall refer to Johnston only when necessary.
Ms. Deloughery’s first amended complaint alleged two counts.1 Count I (the Title VII claim) alleged that the City’s failure to promote her to captain constituted retaliation for filing charges of discrimination and for speaking out against discrimination within CPD, in violation of Title VII. See
[I]t is almost like learning that there is no Santa Clause [sic] anymore. . . . I thought if you worked hard and did the right thing and tried to improve the department and give back and mentor and all of that, that you would be rewarded with continuous promotion. And I based it on the fact that I had steadily moved up in my career. Now, all of a sudden, I wasn’t good enough to be promoted.
Id. at 152-53.
Ms. Deloughery also testified about the obstacles that she had overcome in her life: It was kind of tough growing up [as one of eleven children], and I was very proud of the fact that I was able to finish college . . . . [My family] knew how much I had put of myself into this job in spite of the fact that I had children . . . . Id. at 152. She also testified that the events were hard on her parents, including her father, a retired police officer with failing health. Id. Ms. Deloughery admitted that she had never sought the help of a psychiatrist, psychologist or other mental health professional for treatment of the distress she experienced as a result of not being promoted. Id. at 166.
Sergeant Deborah Pascua, who had worked with Ms. Deloughery in CPWA, testified that not being promoted to captain had had a demoralizing impact on Ms. Deloughery. Id. at 244. Sgt. Pascua also testified that, at the time the CPD made the promotion decisions, Ms. Deloughery had small children, and she was changed numerous places, numerous shifts, and she had a lot—she
At the close of the evidence, the trial court instructed the jury as follows:
You must give separate consideration to each plaintiff and each of her claims.
First, each of the plaintiffs contends that her employer, the City of Chicago, acting through defendant Hillard, retaliated against them for filing charges with the [EEOC] and the [IDHR] and/or for complaining about and opposing discrimination within the [CPD].
Second, each of the plaintiffs contends that defendant Hillard denied her promotion to the position of captain in retaliation for exercising her free speech rights.
. . . .
To prevail on her first claim, the particular plaintiff whose claim you are considering must prove . . . that the City of Chicago determined not to promote her to captain in retaliation for filing charges with the [EEOC] and the [IDHR] and/or for complaining about and opposing discrimination within the [CPD].
To decide this question, you must determine whether the City would have promoted the plaintiff if she had not filed charges or complained about discrimination but everything else was the same.
On the second claim—that is the claim against Mr. Hillard for denial of free speech rights, retaliation for exercising free speech rights. On the second claim, the particular plaintiff whose claim you are considering must prove . . . that her exercise of her right of free speech was a substantial or motivating factor in
Hillard’s decision not to promote the plaintiff to captain. If the plaintiff proves this, she must prevail on this claim unless Hillard proves . . . that he would have taken the same action even in the absence of the plaintiff’s exercise of her right of free speech. . . . It is undisputed that activity in opposing discrimination of [sic] public employment is protected by the constitutional right of free speech.
Tr.IV at 596-98.
The jury returned a verdict for Ms. Deloughery on the Title VII claim and found against her on the First Amendment claim. The jury also awarded Ms. Deloughery damages in the following amounts: $18,000 in back pay; $282,000 in front pay; and $250,000 in compensatory damages for mental and emotional suffering.2
After trial, the City moved for judgment as a matter of law, claiming that the jury had returned inconsistent verdicts. The district court denied the motion on the ground that judgment as a matter of law is not the appropriate remedy for alleged inconsistent jury verdicts. See Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994) (There is no priority among inconsistent verdicts.).
Later, the City filed a motion for a new trial, again asserting that the jury had returned inconsistent verdicts on Ms. Deloughery’s claims, and for remittitur, claiming that the award of compensatory damages was excessive. The district court denied the motion for a new trial on the ground that the jury’s verdicts on Ms. Deloughery’s claims were not inconsistent. The district court observed that its
if it found the City had retaliated against her for filing charges with the [EEOC] and the [IDHR], and/or for complaining about and opposing discrimination within the [CPD]. . . . By contrast, the instructions on the § 1983 [First Amendment] claim required a finding that Deloughery’s exercise of her free speech rights was a substantial or motivating factor in Hillard’s decision not to promote her . . . .
R.121 at 3 (emphasis in original).
On the other hand, the district court reasoned, the instructions on the [First Amendment] claim did not permit, or at least did not appear to the jury to permit, a verdict in Deloughery’s favor on that claim based on retaliation for filing [EEOC] and IDHR charges. Id. at 4. The district court concluded that the jury rationally could have found for Ms. Deloughery on the Title VII claim and against her on the First Amendment claim.
Turning to the City’s claim that the jury’s award of $250,000 for emotional distress was excessive, the court relied extensively on Tullis v. Townley Engineering & Manufacturing Co., Inc., 243 F.3d 1058 (7th Cir. 2001). The court noted that it is within the jury’s domain to assess the credibility of witnesses, id. at 1069, and that [a]n award for nonpecuniary loss can be supported, in certain circumstances, solely by a plaintiff’s testimony about his or her emotional distress, id. at 1068. Based on these principles, the court concluded that it was not unreasonable for the jury to have been convinced that Ms. Deloughery suffered emotional distress, despite the fact that she had never sought professional help for her distress and the fact that she had kept a stiff upper lip when on the job after her
The court observed that the real question in the case was whether the jury had awarded an appropriate amount of damages. Relying on Webb v. City of Chester, 813 F.2d 824, 836 (7th Cir. 1986), which reviewed awards in other employment discrimination cases, the court determined that the current dollar value of the high award amounts approved in Webb would be $50,000 to $100,000. R.121 at 11. The court also noted that it felt obligated to follow dictum from Neal v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999): Had [the plaintiff] merely lost her job as a result of the discrimination, we would think $200,000 excessive, even though [the plaintiff] suffered ostracism, a year-long depression, and upheaval in her life.
Ultimately, in light of these cases, the court concluded that a rational connection between the $250,000 award and the evidence in this case [was] lacking. R.121 at 12. Therefore, the court proposed that it would grant the City’s motion for a new trial on the issue of damages unless Ms. Deloughery accepted remitted compensatory damages of $175,000. The court noted that $175,000 was an amount . . . well within the range of reasonableness given the particular circumstances of this case. Id. Ms. Deloughery accepted the remitted damages award, and, accordingly, the district court denied the City’s motion for a new trial on damages.
Ms. Deloughery also filed a motion for equitable relief in the form of promotion to captain. The district court granted Ms. Deloughery’s motion for equitable relief and ordered the City to promote her to captain within 120 days. The district court later granted Ms. Deloughery’s motion for attorneys’ fees and costs.
DISCUSSION
A. Standard of Review
This court reviews a district court’s denial of a post-trial motion for a new trial according to an abuse of discretion standard. See American Nat’l Bank & Trust Co. of Chicago v. Reg’l Transp. Auth., 125 F.3d 420, 431 (7th Cir. 1997). We also review a district court’s remittitur for abuse of discretion. See David v. Caterpillar, Inc., 324 F.3d 851, 864 (7th Cir. 2003).
B. New Trial Based on Inconsistent Jury Verdicts
The City contends that there is no way to reconcile the jury’s verdicts in this case and, consequently, submits that the district court abused its discretion by denying the City’s motion for a new trial. The crux of the City’s claim is that, given the district court’s instructions to the jury, it was impossible for the jury to have acted rationally and to have found for Ms. Deloughery on the Title VII claim but against her on the First Amendment claim.
As a rule civil juries must return consistent verdicts. Will v. Comprehensive Accounting Corp., 776 F.2d 665, 677 (7th Cir. 1985). If possible, this court must reconcile apparently inconsistent verdicts, rather than overturn them. See American Nat’l Bank, 125 F.3d at 431. A party claiming that inconsistent verdicts have been returned is not entitled to a new trial unless no rational jury could have brought back the verdicts that were returned.3 Will, 776 F.2d at 678. A new
In determining whether the jury’s verdicts could be reconciled, the district court looked closely at its own instructions. With respect to Ms. Deloughery’s Title VII claim, the district court instructed the jury that it should find for Ms. Deloughery if she proved that the City decided not to promote her in retaliation for filing charges with the [EEOC] and the [IDHR] and/or for complaining about and opposing discrimination within the Chicago Police Department. Tr.IV at 597. With respect to Ms. Deloughery’s First Amendment claim, the district court instructed the jury that it should find for Ms. Deloughery if she proved that her exercise of her right of free speech was a substantial or motivating factor in Hillard’s decision not to promote the plaintiff to captain. Id. The district court further instructed the jury that activity in opposing discrimination . . . is protected by the constitutional right of free speech. Id. at 598.
We believe that the district court did not abuse its discretion in concluding that the jury’s verdicts in this case can be reconciled. As the district court pointed out, the jury could have found for Ms. Deloughery on the Title VII claim by accepting her contention that CPD had retaliated against her for filing charges with the EEOC and IDHR, while still
To have found as we have just described, the jury would have had to understand the practice of filing charges with the [EEOC] and the [IDHR] as falling outside the class of activit[ies] . . . opposing discrimination in public employment. This understanding is entirely consistent with the district court’s instructions. Read in conjunction with its instruction that activity in opposing discrimination . . . is protected by the constitutional right of free speech, the district court’s instruction on the Title VII claim—which phrased filing charges . . . and/or . . . opposing discrimination in the disjunctive—could have appeared to the jury to recognize two kinds of activity against which CPD might have retaliated, one protected by the First Amendment and one protected only by Title VII.
Anticipating our conclusion, the City has argued that it is contrary to the law of this circuit for the jury to have thought that filing charges was not protected by the constitutional right of free speech. However, the City’s argument on this point fails for two reasons. First, as Ms. Deloughery points out, the City cannot now challenge the jury instructions as a misstatement of the law of this circuit because it did not object to the instructions at trial. See, e.g., R.J. O’Brien & Assocs., Inc. v. Forman, 298 F.3d 653, 657 (7th Cir. 2002) (We will not make an end run around the failure to object to the jury instructions . . . .).
The City also argues that the fact that the jury returned verdicts against Johnston on both of her claims is proof that the jury’s verdicts on Ms. Deloughery’s claims were inconsistent, since the two women presented identical evidence. Appellant’s Br. at 29. Ms. Deloughery contends that the City has waived this argument by failing to present it to the district court on its motion for a new trial. Notwithstanding the City’s likely waiver of this argument, the verdicts returned on Johnston’s claims do not affect our view of the jury’s verdicts as to Ms. Deloughery. Even if the evidence about Johnston’s filing of charges was the same as Ms. Deloughery’s evidence, it was well within the jury’s role as factfinder to determine that Ms. Deloughery’s actions influenced Superintendent Hillard’s decision not to promote her, while also concluding that Johnston’s actions had no effect on him.
The City makes one final argument with respect to the jury’s verdicts: It claims that the jury was sympathetic to
C. Remittitur
The City also submits that the award of compensatory damages should be reduced further or vacated altogether for a new trial on damages. Generally, we review an award of compensatory damages with an eye to three considerations: (1) whether the award is monstrously excessive;4 (2) whether there is no rational connection between the award and the evidence; and (3) whether the award is roughly comparable to awards made in similar cases. David, 324 F.3d at 864. When the district court has remitted a portion of the jury’s award and the defendant claims that the remitted award is still excessive, this court must review
The City contends that there is no rational connection between the remitted award and the evidence in the present case. For instance, the City points out that Ms. Deloughery never has sought professional help for her emotional distress, and it suggests that the real source of that distress was her divorce or the stress of caring for small children, not the City’s actions. The City also submits that this award is not at all comparable to awards in similar cases.
We first shall consider whether the evidence in the present case rationally can be understood to support the remitted award. Here, we believe there is a sufficient factual predicate in the record to justify the decision of the district court. As Chief Judge Flaum wrote in Tullis v. Townley Engineering & Manufacturing Co., Inc., 243 F.3d 1058, 1068 (7th Cir. 2001), [a]n award for nonpecuniary loss can be supported, in certain circumstances, solely by a plaintiff’s testimony about his or her emotional distress. Although the City regards the evidence as meager, neither the jury nor the trial judge took that view. See id. The record can be read as the story of a highly motivated female police officer, with a family heritage in law enforcement, being frustrated in her quest for greater responsibility simply because she had asserted her right to be free from discrimination. The jury was informed of the other possible causes of Ms. Deloughery’s emotional distress but believed that the defendant’s actions nevertheless caused her significant trauma. Her testimony was succinct and to the point; however, brevity and self-control in a judicial proceeding need not be interpreted as a weak case, and the jury and trial judge were entitled to
We are reluctant to substitute our assessment of the evidence in place of the discretion of the district court, exercised in light of what it witnessed at trial. The district court had the benefit of observing Ms. Deloughery’s demeanor on the stand and thus was particularly well-positioned to assess whether the jury’s award rationally reflected the evidence in the case. As the Supreme Court has noted, [t]rial judges have the unique opportunity to consider the evidence in the living courtroom context, . . . while appellate judges see only the cold paper record. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438 (1996) (internal quotations omitted).
Moreover, in this case, the district court made an explicit determination, based on Ms. Deloughery’s demeanor, that the CPD’s retaliation against her had a significant emotional impact . . . on her. R.121 at 6. Furthermore, the court thought it reasonable for the jury to conclude that Ms. Deloughery had suffered and would continue to suffer significant emotional distress as a result of Hillard’s decision to deny her promotion to captain. Id. at 7. We also are inclined to accept the award of damages in this case because the district court, which had the benefit of witnessing trial, itself remitted the jury’s award to an amount that it determined was commensurate with the evidence in the present case viewed in light of comparable cases. Indeed, the district court gave the matter of emotional distress thoughtful and focused attention. After reading the briefs and hearing the arguments of counsel, we have read the pertinent parts of the record. But a cold record is a poor substitute for the live
We also shall consider whether the award is comparable to awards in similar cases. The City argues that, even the remitted damages in this case are far in excess of amounts that we have approved in previous cases involving retaliation.6 See, e.g., David, 324 F.3d at 864-65 (approving compensatory damages of $50,000—remitted from $100,000 by trial court—in case of retaliatory denial of promotion); see also Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989) (noting that [t]he jury’s award . . . [was] significantly higher than any award approved in the context of unconstitutional firings, and approving compensatory damages of $15,000—remitted from $55,000 by trial court—following retaliatory transfer) (emphasis in original).
However, even though [a]wards in other cases provide a reference point that assists the court in assessing reasonableness[,] they do not establish a range beyond which awards are necessarily excessive. Due to the highly fact-specific nature of Title VII cases, such comparisons are rarely dispositive. Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 485 (7th Cir. 2003), cert. denied, 540 U.S. 1182 (2004). Furthermore, as Ms. Deloughery points out, there are
Given the discretionary standard of review and the district court’s thoughtful consideration of this issue, David, 324 F.3d at 864, we conclude that the district court acted within its discretion in remitting the jury’s award in the present case to $175,000, and we uphold the award.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED
Teste:
_____________________________
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-05