Opinion
Case No. 96 C 4319.
December 18, 2001
MEMORANDUM DECISION AND ORDER
Plaintiff, Rhodda Thompson, claims that defendant, Altheimer Gray, LLP, discriminated against her on the basis of her race under Title VII by failing to promote her to an Assistant Legal Recruitment Coordinator ("ALRC") position in 1994. Defendant has moved for summary judgment on the basis that even if plaintiff establishes her claim of race discrimination, she has no damages as a matter of law. Plaintiffs damages are based on Title VII of the Civil Rights Act of 1964, § 2000e et seq., as amended by the Civil Rights Act of 1991, and 42 U.S.C. § 1981a. For the reasons set forth below, the court denies defendant's motion for summary judgment.
This case is before this court for re-trial. See Thompson v. Altheimer Gray, 248 F.3d 621, 627 (7th Cir. 2001).
STANDARDS FOR SUMMARY JUDGMENT
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56 (c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. See id. at 324; Insolia v. Philip Morris, Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. The court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). At the same time, "[a] mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. "The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]" Id. (citing to Improvement Co. v. Munson, 14 Wall. 442, 448, (1872)); see Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991) (same principles applied to Title VII case).
DISCUSSION
In addressing the motion, the court assumes that defendant intentionally discriminated against plaintiff in not offering her the ALRC position in 1994. The court will not recite the undisputed facts in full but will refer to particular facts as necessary.
A. Back pay
Defendant contends that because plaintiff's earnings since 1994 were greater than the earnings of the several incumbents of the ALRC position, and because plaintiff is currently earning the same as the current Legal Recruitment Coordinator ("LRC"), plaintiff can prove no entitlement to back pay. Plaintiff responds that calculation of back pay is a question for the jury. Further, plaintiff attempts to demonstrate that had she received the ALRC position in 1994, she would have received a raise from the start, would have received at least the same pay increases as all others who later filled the position, would have been promoted to LRC at least as early as August 1997 when Ms. Kenny-Verheyen was promoted, and would have received the most favorable salaries and increases that the incumbents of the LRC or Director of Legal Recruiting ("DLR") positions received to date.
Defendant also argues in its reply memorandum that even if plaintiff lost earnings, she forfeited any entitlement to back pay because she failed to mitigate her damages by seeking a position that is "comparable" and "substantially equivalent." Issues raised in the reply brief that are not in response to the opposing party's additional material facts can be disregarded by the court. See LR56.1(a)(3)(B); cf. Kauthar SDNBHD v. Steinberg, 149 F.3d 659, 668 (7th Cir. 1998) (raising new arguments in an appellate reply brief is inappropriate and will not be considered for the first time by the court).
Plaintiff is not entitled to a jury determination of back pay; it is for the court to decide. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1352 (7th Cir. 1995) (Affirmed back pay determination in case under § 1981 a commenting, "[Section 1981 a] statute prohibits consideration of back pay by a jury as an element of compensatory damages."); Grayson v. Wickes Corp., 607 F.2d 1194 (7th Cir. 1979); Cruse v. Northern Illinois Gas Co., No. 90 C 2316, 1990 WL 114559, at *2 (N.D. Ill. July 19, 1990) ("It is well settled that back pay under Title VIII is an equitable remedy, and thus there is no right to a jury trial under that statute."). An equitable remedy, back pay is awarded to restore the plaintiff to her situation had there been no employment discrimination against her. Rogers v. Loether, 467 F.2d 1110, 1121 (7th Cir. 1972), aff'd on other grounds, Curtis v. Loether, 415 U.S. 189 (1974). "Any method is simply a process of conjectures. . . . [E]xact construction of each individual claimant's work history, as if discrimination had not occurred, is not only imprecise but impractical." Pettway v. Am. Cast-Iron Pipe Co., 494 F.2d 211, 261-62 (5th Cir. 1978); see Grove v. Frostburg Nat'l Bank, 549 F. Supp. 922, 946 (D. Md. 1982) ("An award of back pay under Title VII requires the construction of a plaintiffs hypothetical work history had discrimination . . . not occurred, against which the actual work history is compared. The difference in pay between the two is awarded."). Prior to calculating back pay, however, plaintiff must establish that she suffered an economic loss from the discrimination. See Taylor v. Philips Indus., Inc., 593 F.2d 783, 786 (7th Cir. 1979). Further, "[the] court must resolve against the employer any ambiguities in what the employee would have earned but for the discrimination." Robinson v. City Lake Station, 630 F. Supp. 1052, 1062 (N.D. Ind. 1986). Calculation of back pay is not an exact science.
There is no genuine issue of material fact that plaintiff's total earnings were greater than the total paid to the incumbents of that position from 1994 until the ALRC position was abandoned and that her continued earnings were no less than what would have been paid to an ALRC had the position continued. Nevertheless, there remains a dispute of fact whether plaintiff would have succeeded to the LRC and DLR positions had she been given the opportunity to demonstrate her ability as the ALRC. The court agrees with plaintiff that in light of the unique evidence in this case, where the positions and responsibilities in the Legal Recruiting Department shifted a number of times from 1997 forward, it is not totally speculative that plaintiff would have been moved up to LRC as Ms. Kenny-Verheyen was. Neither is it essential to assume, as defendant does, that plaintiff would not have received larger increases in salary as ALRC or LRC than she did as a secretary, where the incumbents consistently received larger increases than plaintiff received, nor that she would not be earning more than $52,000 had she remained at defendant as ALRC or LRC. Without having heard the evidence the court is not well positioned to assess these questions of fact. Therefore, the court concludes that there are material facts in dispute that must be resolved before the court can determine the ultimate facts of whether plaintiff has suffered an economic loss. For these reasons, the court denies summary judgment on the issue of back pay.
The Director of Legal Recruiting ("DLR") position did not even exist when plaintiff applied for the Assistant Legal Recruitment Coordinator ("ALRC") position in 1994. While defendant recognizes that the Legal Recruitment Department grew in subsequent years and so did the responsibilities of the people in those positions, it insists that plaintiff could not have expected to be promoted.
Relying on Emmel v. Coca-Cola Bottling Co. of Chicago, Inc., 904 F. Supp. 723, 736-37 (N.D. Ill. 1995), aff'd, 95 F.3d 627 (7th Cir. 1996), plaintiff attempts to demonstrate that because persons who have since served in the ALRC position were promoted, she also would have been promoted and would now have equivalent or greater earnings. Defendant responds that such assertions are speculative; rather, damages must be based on the actual position at issue, citing Hasham v. California State Bd. of Equalization, No. 96 C 3326, 1998 WL 456558, (N.D. Ill. July 31, 1998), aff'd on other grounds, 200 F.3d 1035 (7th Cir. 2000). In Emmel, the employee alleged in her consolidated complaints that she had been passed over for three separate promotions; having proved her claims to each promotion, the calculation of damages included back pay for all three. 904 F. Supp. at 735-37. Here, by contrast, plaintiff wants the court to assume that because others who served in the ALRC position were promoted, she also would have been promoted even though she never sought the position. Thus, Emmel is thin support for plaintiff's position. Nevertheless, the evidence here indicates that two of the ALRCS were promoted as their duties expanded rather than through defendant's seeking applicants for an open position for which plaintiff might have applied, which at least suggests that for purposes of calculating back pay, the court must evaluate the evidence regarding a possible advancement in 1997.
In Hasham, the successful plaintiff was promoted into the position which had previously been denied to him, and he sought lost future earnings and lost future benefits as compensation "for a lifetime of diminished earnings resulting from the alleged reputatiorial harms that he suffered as a result of discrimination." 1998 WL 45668, at *7 The court rejected this claim, stating that damage to reputation would have a common law tort remedy for which there is a right to a jury determination, but the plaintiff had not asked the jury to consider lost future earnings and benefits and therefore could not recover. Further, the court determined that plaintiff had not put on any evidence that he would be hindered in a future search for employment, stating "these assumptions are merely speculative and, as such are insufficient to ground an award of damages. Even if plaintiff had been promoted to Supervisor I in 1993, it does not necessarily follow that he would have received a subsequent promotion to Supervisor II. . . . Plaintiff has not shown that his injuries have `narrowed the range of economic opportunities available to him' or `caused a diminution in his ability to earn a living.'" Id. at *8 (internal citations omitted). Although the court's comments about the speculative nature of predicting future promotions may be instructive, the case is by and large inapposite.
The court will consider submitting the promotion issue to the jury by way of special interrogatory, such as, "If you find that plaintiff was discriminated against when she was not granted the ALRC position, do you further find that had plaintiff received ALRC in 1994, she would have been promoted to LRC in August 1997?" A jury determination of this fact might assist the court in constructing a hypothetical work history for the plaintiff should she prevail.
B. Front Pay
Front pay is compensation in lieu of reinstatement from the time of trial forward when reinstatement is not feasible. Bruso v. United Airlines, Inc., 239 F.3d 848, 862-63 (7th Cir. 2001) (setting out standards for front pay). Its purpose is to place the plaintiff "in the identical financial position that [plaintiff] would have occupied had [plaintiff] been reinstated." Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1231 (7th Cir. 1995). In calculating front pay, a plaintiff must provide the court "with the essential data necessary to calculate a reasonably certain front pay award." McKnight, 973 F.2d 1366, 1371-72 (7th Cir. 1992). Because plaintiff has remained consistently employed at a salary comparable to or greater than an ALRC (or a LRC), and there is no evidence that an ALRC currently commands in the market more than $52,000 annually, the court does not anticipate that front pay will be an appropriate equitable remedy. Nevertheless, it will deny summary judgment and reserve the issue until after trial. See Pals v. Schepel Buick GMC Truck, Inc., 220 F.3d 495, 500-01 (7th Cir. 2000) ("[W]hatever discretion the facts allow with respect to back pay . . . belongs to the judge rather than the jury.").
C. Compensatory Damages
Compensatory damages awarded are based on "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses[.]" 42 U.S.C. § 1981a(b)(3). Compensatory damages may be awarded for emotional distress when such injury can be inferred from the circumstances or established by testimony. See Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 637 (7th Cir. 1974) (upholding compensatory damages for humiliation suffered by plaintiffs based on inference of circumstances and testimony from father that he was humiliated); see also Carey v. Piphus, 435 U.S. 247, 264 n. 20 (1978) ("We use the term "distress' to include mental suffering or emotional anguish. Although essentially subjective, genuine injury in this respect may be evidenced by one's conduct and observed by others.").
Defendant contends that plaintiff cannot prove "demonstrable emotional distress because she did not provide any evidence of emotional distress or other compensable injury at her first trial; furthermore, she did not see a physician or counselor as a result of Defendant's alleged discrimination but rather as a result of stress related to the litigation. Plaintiff relies principally on a recently-prepared affidavit in which she sets out "tremendous embarrassment and stress" resulting from the events at issue. Plaintiff also attests that although she did not see a physician at or near the time she was not promoted to ALRC, she eventually did so after the support of family and friends did not alleviate her distress, and that the physician diagnosed her with "situational anxiety."
To support its argument that Plaintiff cannot prove emotional distress, Defendant relies on an EEOC policy statement that states it "will typically require medical evidence of emotional harm to seek damages for such harm[.]" Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 § 11(A)(2) (July 14, 1992), available at http://www.eeoc.gov.docs/damages.html. Disappointingly absent from defendant's assertion, however, is the remainder of the EEOC policy statement, which reveals that it applies "in conciliation negotiations. However, evidence of emotional harm may be established by testimony." Id. The EEOC includes one's own testimony as sufficient to establish emotional distress. Id.
Defendant is correct that plaintiff cannot rely on a consultation that was sought because of stress of the litigation. See Stoleson v. U.S., 708 F.2d 1217, 1223 (7th Cir. 1983) ("It would be strange if stress induced by litigation could be attributed in law to the tortfeasor"); Lopacich v. Falk, No. 91 C 2339, 1992 WL 402932 (N.D. Ill. Apr. 23, 1992), at *7 ("We believe it would be a dire mistake to allow causes of action . . . for the stress attendant every legal proceeding, especially stress visited upon the party instigating the proceeding"). Plaintiff's testimony in that regard is self-serving and lacking in evidentiary value. See Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 723-24 (7th Cir. 1998) (citing to its decision in Buchner v. Sam's Club, Inc., 75 F.3d 290, 292-93 (7th Cir. 1996), and "noting that the contradiction appeared not in comparing facts to facts, but in contrasting the plaintiffs lack of knowledge during her deposition with the detailed explanation in her affidavit.").
Nevertheless, the court concludes that plaintiff herself testified at trial and may again testify that the reason she transferred out of the Legal Recruitment Department was because of the humiliation and embarrassment she suffered. See Tullis v. Townley Eng'g Mfg. Co., Inc., 243 F.3d 1058, 1068 (7th Cir. 2001) (court relied on employee's testimony that he felt "low" and "degraded" when he was laid off and "back-stabbed" when the company opposed his unemployment claim to uphold jury award of compensatory damages concerning emotional distress). Although plaintiff did not specifically testify at the first trial that she suffered humiliation and embarrassment, a reasonable inference from the testimony is that she was humiliated and embarrassed, i.e., emotionally distressed, to work with someone who had allegedly intentionally discriminated against her. Although the affidavit might not be sufficient to withstand summary judgment were this the only issue before the court, the court will not foreclose plaintiff from testifying during the second trial with respect to her reasons for transferring. For these reasons, summary judgment will be denied on the issue of compensatory damages.
Plaintiff testified at her first trial as follows:
A: Deborah Cusumano brought her [Kern] to my desk and told me that, "This is Leshe Kern, the one who is taking my place."
Q: And how long were you in the department after that?
A: My last day was August 30th.
Q: Why did you leave the department?
A: Because I didn't want to work up under Miss Wongstrom anymore.
Q: Why not?
A: Because Miss Wongstrom had told me she'd interview me, and then she did not. And then August the 2nd she called me into her office again by the intercom, and she said to me that she wanted to take some time to sit down and discuss the position. So I said to her, "I don't understand what position," because Miss Cusumano had brought Leshe Kern to me and told me that she had been hired. So then Miss Wongstrom, you know, put a surprised look on her fact and says, "Oh, I thought you were interested in a secretarial position"
Q: Which secretarial position are we referring to?
A: The one that I already was holding.
(Trial Tr. at 174-75.)
That plaintiff did not consult a professional in 1994 goes to the weight of her testimony. Should plaintiff testify at trial to emotional distress that she did not testify to at trial, the fact that she did not so testify when under oath on a previous occasion will likely serve effectively to impeach her.
D. Punitive Damages
Punitive damages may be awarded in Title VII cases if "the complaining party demonstrates that the [defendant] engaged in a discriminatory practice or discriminatory practices with malice and with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). "The terms `malice' or `reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535, 546 (1999) (holding that an employer's conduct need not be independently egregious in order to allow for a punitive damages award). As such, the employer "must perceive some risk that its actions violate federal law[.]" Cooke v. Stefani Mgmt. Servs., Inc., 250 F.3d 564, 568 (7th Cir. 2001). In response to Kolstad, the Seventh Circuit established a three part framework for determining whether an award of punitive damages is proper under the statute. Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001); Hertzberg v. SRAM Corp., 261 F.3d 651, 661 (7th Cir. 2001).
The plaintiff must first "demonstrate that the employer acted with the requisite mental state." Hertzberg, 261 F.3d at 661. In doing so, the employer does not need to be aware that it engaged in discrimination; rather "it need only act in the face of a perceived risk that its actions will violate the law. A plaintiff may satisfy this element by demonstrating that the relevant individuals knew of or were familiar with the anti-discrimination laws and the employer's policies for implementing those laws." Bruso, 239 F.3d at 857-58 (internal quotations and citations omitted). Another way that the plaintiff may satisfy this element is "by showing that the defendant's employees lied, either to the plaintiff or to the jury, in order to cover up [its] discriminatory actions." Id. at 858. Next, plaintiff "must demonstrate that the employees who discriminated against him are managerial agents acting within the scope of their employment." Id. If the plaintiff meets this second factor, then "the employer may avoid liability for punitive damages if it can show that it engaged in good faith efforts to implement an anti-discrimination policy." Id.
Citing Lindale v. Tokheim Corp., 145 F.3d 953, 958 (7th Cir. 1998), defendant believes that if found liable, plaintiffs case falls under "the `garden-variety disparate treatment' cases with no circumstances of aggravation such as the involvement of higher management or a pattern of flouting the law." Defendant further asserts that plaintiff cannot prove a basis to impute liability to defendant by showing that Ms. Wongstrom who allegedly discriminated against her was a manager who acted within the scope of her employment. Moreover, citing Cooke, 250 F.2d at 568, defendant contends that even if plaintiff can prove that Ms. Wongstrom was a manager who acted within the scope of her employment, defendant is insulated from punitive damages because of its demonstrated good faith attempt to establish and enforce an anti-discriminatory policy by preparing and disseminating such a policy to all employees, including Ms. Wongstrom. Finally, defendant argues that plaintiff cannot prove it acted with "malice" or "reckless indifference" to her individual rights because, following her denial of the promotion, plaintiff continued to work for defendant for three years and received regular raises and bonuses until she voluntarily resigned to accept a higher paying position at Chapman Cutler. Plaintiff disputes each of these arguments both on the facts and the law.
Lindale v. Tokheim Corp., 145 F.3d 953, 958 (7th Cir. 1998), was decided before Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535, 546 (1999), and defendant relies on dicta. To the extent the cited dicta remains viable after Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001), the court merely refers to non-exclusive possibilities of proof of aggravating circumstances and thus does not foreclose other types of proof.
If Ms. Wongstrom was the de facto decision-maker because she conducted the interviews and preliminarily selected the applicant to be hired, subject to approval by superiors, then the jury could reasonably infer that Ms. Wongstrom was exercising managerial responsibilities, without regard to her title. That defendant had an anti-discrimination policy and that Ms. Wongstrom or anyone else knew of it does not insulate defendant from punitive damages. Although it is some evidence of good faith, a disseminated anti-discrimination policy is certainly not dispositive under Kolstad, which was authority for the decision in Cooke, on which Defendant relies. In Kolstad, the employer had an anti-discrimination policy, but the court specifically remanded the case for retrial on punitive damages, stating, among other things, "It may also be necessary to determine whether the [employer] had been making good faith efforts to enforce an anti-discrimination policy." 527 U.S. at 546. Surely few employers subject to Title VII during the years 1994 to present have lacked an official anti-discrimination policy, and if that were sufficient to withstand punitive damages, rare would be the case for awarding them. Cooke, in any event, is readily distinguishable to establish good faith. In the context of a sexual harassment case, the defendant pointed not only to its anti-harassment policies, but also to a management seminar on sexual harassment attended by the offending employee and an anti-harassment poster on display at the work place. Ultimately, the court relied on evidence that plaintiff had not reported the harassment to someone superior to the offending manager, concluding that because no one in upper management had any inkling about the behavior, the employer was not recklessly indifferent or malicious. Vicarious liability cannot be established in a sexual harassment law suit without the employer's knowledge; by contrast, in a promotion case, the employer is strictly liable for discriminatory decisions of its agents. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70-73 (1986) (Employers are liable for the discriminatory discharge of employees by supervisory personnel, whether or not the employer knew, should have known, or approved of the supervisor's actions, but for a sexual harassment claim, agency principles cannot be entirely disregarded); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1004 (7th Cir. 1999) (An employer is liable under a hostile environment theory if the plaintiff can establish that the employer "knew or had reason to know about the harassment and failed to take appropriate remedial measures."). Thus, unlike the employer in Cooke, if Ms. Wongstrom or others with decision-making responsibility were recklessly indifferent to their equal employment opportunity obligations, defendant was also recklessly indifferent. Plaintiff here asserts that Ms. Wongstrom falsely professed not to understand that she had applied for the ALRC position and that plaintiff was not qualified for the position when she plainly was for purposes of this motion. Moreover, there is no evidence indicating that defendant conducted training or otherwise monitored enforcement of its anti-discrimination policy. All of these as well as other factors may bear on the existence of good faith. In sum, there is sufficient evidence of punitive damages to go to the jury.
Here, and at other points throughout their briefs, both parties refer to rulings made by Magistrate Judge Denlow before and during the first trial. Under the doctrine of law of the case, a prior ruling by a judge is binding in all subsequent proceedings in the same case unless there is new evidence, an intervening change in the controlling law, or the appellate decision is clearly erroneous and would create a manifest injustice if implemented. Litman v. Mass. Mutual Life Ins. Co., 825 F.2d 1506, 1510 (11th Cir. 1987). When a higher court reverses a judgment or ruling made by a lower court, however, that judgment is "`without any validity, force or effect[,]'" Mason v. Texaco, Inc., 948 F.2d 1546, 1551 (10th Cir. 1991) (quoting Butler v. Easton, 141 U.S. 240, 244 (1891)). Therefore, when a higher court reverses judgment and remands for a new trial, it "places the parties in the same position, insofar as relief is concerned, as if the case had never been tried." Id. (citing to Gospel Army v. Los Angeles, 331 U.S. 543 (1947), which determined its holding based on state law). Because the Seventh Circuit reversed judgment in favor of defendant in the first trial and ordered a new trial, the court takes Magistrate Judge Denlow's prior rulings as advisory but not binding. The court will admit evidence of an anti-discrimination policy as relevant to defendant's good faith implementation of its obligations under Title VII.
Although a discharge was at issue in Merior Saving Bank, FSB v. Vinson, 477 U.S. 57, 70-73 (1986), the principle certainly applies to promotion cases.
ORDER
For the reasons stated above, defendant's motion for summary judgment [# 161] is denied in all respects.