Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 78 C 3921, John F. Grady, Chief Judge.
Easterbrook and Manion, Circuit Judges, and Eschbach, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
Beatrice Williamson worked for 21 years at the Handy Button Machine Co., principally as an assembly operator. She was fired in 1977 after she failed to reply to a telegram from Handy Button. The jury in this case under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was entitled to find that Williamson did not answer the telegram because she had been driven to distraction by racial discrimination and the abusive behavior of her supervisor. She has been unable to work since. She recovered $150,000 in compensatory and $100,000 in punitive damages. While the jury was deliberating on the case under § 1981, the district judge found that Williamson had not established sex discrimination in violation of Title VII and had demonstrated only two episodes of racial discrimination, which had not caused the discharge. The judge nonetheless declined to set aside the jury's verdict, holding that its view of the evidence was as permissible as his own.
The evidence, which we narrate in the light most favorable to the verdict, shows that during her entire career at Handy Button, Williamson was assigned unskilled entry-level work, although she was able to do higher-paying work such as inspection (and did so on occasion). Between 1968 and 1976 Williamson repeatedly applied for work as an inspector and saw white employees with less seniority promoted over her. In 1975 she and about ten other assembly workers were demoted to the sorting department because of a slowdown in work at the plant. Sorting is a dirty, boring job. Although sorting and assembly pay the same base wage, assemblers may earn a maximum bonus of $12 per week. Most weeks Williamson had earned the maximum bonus; she was not eligible for a bonus in sorting. Williamson was the only black employee demoted -- and the most senior. Under the collective bargaining agreement, she should have been the first returned to assembly. But as work picked up, only white employees junior to Williamson were returned to assembly. She protested to the supervisor of assembly, to no avail.
In July 1975, as white employees were being returned to the assembly department, Williamson began to have uncontrollable crying spells. By February 1976 she was under medical care for depression and was taking drugs for the condition. She began to stay home ill. In late 1976 another inspector's job was filled by a white employee junior to her, without any opportunity to apply for the vacancy, despite the collective bargaining agreement's requirement that openings be posted for applications. Williamson filed a charge of discrimination with the EEOC; Handy Button learned of this charge no later than January 1977. In early March 1977 Williamson took a week of vacation time she had accrued, informing the company at the last minute. When she returned, supervisor Mervyn Mendel handed her a stiff note denying permission to take the vacation because she had not given "advance notice". The firm had no requirement that employees seek permission before taking vacations. (The memo was a blot on her record but had no immediate effect on her income, because the vacation had been unpaid.) On March 15, 1977, Williamson went to the upstairs washroom (where she had been assigned a locker by the company) to remove her work clothes and wash up at the end of the day. Mendel confronted her after she left and in loud, scatological language berated her for using the upstairs washroom rather than a different one.
This event, according to a psychiatrist's testimony, was the "straw that broke the camel's back." Williamson went home, never to return to work. The psychiatrist stated that she had a "major depressive disorder" that was "a 10 on a 10-point scale" of seriousness. On March 28 the firm sent her a telegram instructing her to call the company by March 30 to let it know when she would return to work. She did not respond and was fired. The jury could conclude that, as a result of Mendel's handiwork, Williamson was unable to understand the telegram, let alone to respond. Williamson testified that although she had been able to read, for many years after the incident she could neither read nor understand anything except the Bible. The firm did not call to find out why she had not answered the telegram, and it did not reinstate her after a psychiatrist explained the lack of response -- although it had done both for other employees. Williamson, who was 52 when fired, has not been able to work since. Handy Button does not contend that she is a malingerer. (She worked as a teachers' aide for a year but was emotionally unable to continue.) The Social Security Administration concluded in 1978 that she is completely disabled and awarded disability benefits.
The jury answered seven interrogatories. It found that Williamson (1) was denied a transfer back to assembly because of her race; (2) was denied promotion to inspector because of her race; (3) was denied a week's vacation because of her race; (4) was refused permission to use the upstairs bathroom because of her race; (5) was "berated and verbally abused" because of her race; (6) was fired because of her race; and (7) was treated adversely because of her complaint alleging discrimination. The jury fixed damages at $10,000 for psychological disability and emotional pain, $130,000 for "earnings lost and the present cash value of the earnings reasonably certain to be lost in the future ", and $10,000 for the expenses of medical and psychological treatment. It awarded $100,000 more as punitive damages. Handy Button conceded at oral argument that the compensatory damages are supported by the record, if the evidence demonstrates that Handy Button's discriminatory conduct caused Williamson's breakdown and discharge. It does. Whether it is more than minimally sufficient we need not say.
Handy Button insists that the judge's more confined view of the evidence controls because rendered first, while the jury was deliberating. Not so. Title VII proceedings are "equitable" and § 1981 proceedings are "legal", so that the plaintiff has a right to a jury trial only on the § 1981 claim. But when the two are tried together, the jury's verdict governs factual issues common to them. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 1986). The constitutional right to a jury trial may not be abridged by a court's deciding the equitable portion of a case first. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962). Timing might be important if the Title VII claim had been filed as a separate suit, so that principles of preclusion applied to the § 1981 claim. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333-37, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). Ours is not a problem of preclusion, however, for there was but one trial. The jury's verdict governs.
The jury could infer discrimination. Handy Button never offered an explanation for keeping Williamson in the plant's lowest-paying job, despite her entitlement by seniority to the assembly job. It never offered an explanation for failing to promote her to inspector between 1968 and late 1976, when it first stated that it wanted inspectors to have high school degrees, itself a potential ground of liability. See Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). The jury was entitled to infer discrimination from the fact that a qualified black employee repeatedly, and without explanation, was passed over in favor of whites for better jobs, including one to which the black employee was contractually entitled and in which she served competently. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). This discrimination contributed to Williamson's mental deterioration. Perhaps she was unusually sensitive, but a tortfeasor takes its victims as it finds them. E.g., Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891); Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983); Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 820 (7th Cir. 1985). In some cases unusual sensitivity will enhance the loss; in others unusual hardiness will reduce it; payment of the actual damage in each case will both compensate the victim and lead the injurer to take account of the full consequences of its acts. (The injurer expects to pay the average injury caused by conduct of the sort.)
Williamson's breakdown led to her discharge. Handy Button played on this. The district court observed: "It was [Handy Button's] litigation strategy to agree that [Williamson] was emotionally disturbed and, indeed, the more disturbed the better. [Handy Button] seemed anxious to bring out and capitalize upon the suggestion of the psychiatrist that [Williamson] may even have been psychotic. . . ." This led Handy Button to embrace " expert" testimony that has questionable value -- see Bohen v. City of East Chicago, 622 F. Supp. 1234, 1243 n.4 (N.D. Ind. 1985), reversed in part on other grounds, 799 F.2d 1180 (7th Cir. 1986) ("'Experts' on this subject know no more than judges about what causes mental changes -- which is to say that they know almost nothing.") -- and to emphasize other evidence of instability. Perhaps Handy Button believed that if the jury thought Williamson crazy, it would see why Handy Button dismissed her. The risk was that the jury would conclude that Handy Button had driven Williamson to distraction; the jury so found.
Handy Button is liable under the civil rights laws for Williamson's principal injury -- her continued inability to work -- only if the emotional instability came from racial discrimination. Handy Button might have tried to argue that Williamson's breakdown was attributable to boorish conduct by Mendel, her supervisor in 1977. Personal animosity, even monstrous conduct, is not actionable under § 1981 and Title VII unless based on race. Dale v. Chicago Tribune Co., 797 F.2d 458, 465 & n.9 (7th Cir. 1986). A breakdown caused by non-racial offensiveness might explain why Williamson could not respond to the telegram and therefore support an award of damages until Williamson could have found another job (had she been emotionally stable), but it would not justify an award of a lifetime's lost income. Handy Button did not try to pry apart the racial and non-racial causes of Williamson's distress, however. It stood by as evidence of personal animosity came in, and it did not request limiting instructions or suggest that the jury be told to separate racial and other causes of Williamson's inability to work after she had been fired.
The evidence was not so thin that we must step in to protect defendants who did not protect themselves. Even if there had been no intervening acts of discrimination, the jury would have been entitled to find that the discriminatory failure to return Williamson to the assembly department was a cause of her breakdown. The jury also was entitled to infer that the vacation and washroom incidents, and the firm's refusal to call her or reinstate her after learning of the cause of her failure to respond, had race at their core. True, none of these events involved racial epithets, and the employer offered neutral explanations for each. But once a jury decides that an employer makes use of race in its everyday decisions -- in this case, that it held Williamson's race against her over a decade -- it is permissible to infer that race also explains other disparate treatment. ...