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March 20, 2003


The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge


After a trial in this age discrimination, retaliation and national origin discrimination case, a jury awarded plaintiff, Momcilo Filipovich ("Filipovich"), $1,200 in back pay for his age discrimination claim, $300 in back pay for his retaliation claim and $126,423 in punitive damages for his retaliation claim.*fn1 Defendant, K & R Express Systems, Inc. ("K & R"), has now moved under Rule 50(b), Fed.R. Civ. P., for renewed judgment as a matter of law or, alternatively, with respect to the punitive damages, a reduction in the amount to a constitutionally acceptable level.*fn2 For reasons stated below, K & R's motion is granted in part and denied in part.

Under Rule 50(b), judgment as a matter of law may be entered where "there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [an] issue." Kossman v. Northeast Ill. Reg'l Commuter R.R. Corp., 211 F.3d 1031, 1036 (7th Cir. 2000), quoting Fed.R.Civ.P. 50. After reviewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party, the court must determine whether the verdict is supported by sufficient evidence. Id., Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1129 (7th Cir. 1997). While the court will overturn a jury verdict only if it concludes that "no rational jury could have found for the plaintiff," Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998), "a mere scintilla of supporting evidence will not suffice." Millbrook v. IBP, Inc., 280 F.3d 1169, 1173 (7th Cir. 2002), quoting Futrell v. J.I. Case, 38 F.3d 342, 356 (7th Cir. 1994).


The court will not provide an in-depth recitation of the factual background as this court's memorandum opinion and order denying K & R's motion for summary judgment provides extensive treatment to the relevant facts. See Filipovich v. K & R Express Systems, No. 98 C 4610, 2001 WL 687469 (N.D.Ill. June 19, 2001). The court will, however, for clarity's sake set forth some of the relevant dates necessary for an understanding of this action.

Filipovich's current law suit arises from allegations contained in an EEOC charge filed December 10, 1997, and amended on January 16, 1998.*fn3 The EEOC issued a Right to Sue Notice on April 27, 1998, and Filipovich filed this action on July 27, 1998.

K & R sent the following disciplinary notices to Filipovich on the dates listed: (1) a January 8, 1998 warning for attendance problems which was later retracted, and which this court apparently excluded from consideration for Filipovich's retaliation claim on a motion in limine; (2) a disciplinary warning letter on May 29, 1998; (3) a disciplinary warning letter on September 18, 1998; (4) a suspension letter on November 10, 1998, which suspension lasted for two days (November 17 and 18, 1998) and was subsequently affirmed on review by Filipovich's union; (5) a disciplinary warning letter on December 22, 1998 that was later retracted; (6) a disciplinary warning letter on December 31, 1998; (7) a final warning letter on August 31, 1999; (8) a suspension letter on October 26, 1999, which, although not clear, was apparently reduced from a suspension to a warning; and (9) a letter of suspension on December 15, 1999, which suspension lasted for one day (December 21, 1999). This second suspension was successfully grieved through Filipovich's union and Filipovich received full pay for the day he was not permitted to work.


K & R argues that it is entitled to judgment as a matter of law on Filipovich's Title VII retaliation claim and age discrimination claim. K & R also asserts that it is entitled to judgment as a matter of law on Filipovich's claim for punitive damages or entitled to a reduction in the amount of such damages awarded by the jury to a constitutionally permissible level. The court will consider each argument separately.

A. Retaliation

Retaliation claims under Title VII may proceed under a theory of either direct evidence of retaliation or a modified version of the familiar McDonnell Douglas indirect method of proof Filipovich attempted to use the indirect method of proof. To establish a prima facie case of retaliation under the indirect method of proof, Filipovich was required to show (1) he engaged in a statutorily protected activity; (2) he performed his job according to his employer's legitimate expectations; (3) despite meeting his employer's legitimate expectations, he suffered a materially adverse employment action; and (4) he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.*fn4 Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002); Rhodes v. Illinois Dep't of Trans., — F. Supp.2d —., 2003 WL 255231, at *8 (N.D.Ill. Feb. 5, 2003). If this prima facie case is satisfied, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. "If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, [it] is entitled to summary judgment. Otherwise, there must be a trial." Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002).

K & R, in arguing for judgment as a matter of law, states (1) that no reasonable jury could find that Filipovich was subjected to "baseless" disciplinary actions following his protected conduct, and (2) even if Filipovich did rebut the basis of the disciplinary actions, no reasonable jury could find that he was the victim of retaliation following his protected conduct because no reasonable jury could have found (i) that Filipovich's November 1998 suspension was retaliatory because of the delay between the protected conduct and the suspension and because a neutral grievance committee upheld the suspension; (ii) that Filipovich suffered any adverse employment action; (iii) any causal link between Filipovich's protected conduct and the post-November 1998 disciplinary letters; and (iv) that Filipovich suffered more adverse employment actions after he engaged in protected conduct.

1. Whether a reasonable jury could find "baseless" disciplinary actions following Filipovich's protected conduct.
In this court's memorandum opinion and order denying K & R's motion for summary judgment on Filipovich's retaliation claim, Filipovich argued that the following constituted adverse employment actions:
(1) the alleged deliberate withholding of workers' compensation benefits; (2) the alleged wrongful disciplinary action taken in 1998 (specifically, the warning letters issued May 28, 1998 and September 18, 1998, the two day suspension issued November 10, 1998, and the December 31, 1998 warning letter); and (3) the alleged wrongful disciplinary action taken in 1999 (specifically, the August 31, 1999 warning letter, October 26, 1999 suspension letter later reduced to a warning letter, and the December 15, 1999 suspension).
Filipovich, 2001 WL 687469, at *9. The court granted summary judgment in favor of K & R on Filipovich's claim that the delay in workers' compensation was retaliatory, but as to the 1998 and 1999 disciplinary actions stated,
The disciplinary actions, however, cannot be as easily dismissed. First, even if this court were to accept that any single disciplinary action did not constitute an adverse employment action, the amount of discipline, and the fact that plaintiff was suspended, certainly qualify as materially more disruptive than a mere inconvenience. Second, a genuine fact dispute exists regarding whether this discipline was justified. If, indeed, K & R repeatedly wrongfully disciplined plaintiff, this would militate against a finding that no causal connection exists even though the first incident occurred approximately five months after plaintiff's EEOC filing and one month before he filed this lawsuit.
Id. at 10.

K & R now argues that no reasonable jury could have found that any of the disciplinary letters issued to Filipovich were groundless. Both parties are less than clear as to the contours of this argument.*fn5 K & R appears to be making a pretext argument, i.e., that it had a legitimate nondiscriminatory reason for taking the actions and that Filipovich did not prove by a preponderance of the evidence that these legitimate reasons were not K & R's true reasons but were instead a pretext for discrimination. If insufficient evidence was brought forth to show that the disciplinary letters were in fact groundless, K & R would have legitimate reasons for the actions not related to retaliation (that Filipovich in fact did perform the acts that formed the basis for the discipline).

The Seventh Circuit recently addressed the applicability of the McDonnell Douglas burden shifting approach to Rule 50 motions in employment discrimination cases. In Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), the court noted that

once a trial is complete and judgment rendered, the burden-shifting framework of McDonnell Douglas falls away: "Post-trial we consider only whether the record supports the resolution of the ultimate question of intentional discrimination." Collins, 143 F.3d at 335. Accordingly, the appropriate question on appeal is not whether IBP's proffered reason for rejecting Millbrook's application was pretextual, but rather whether sufficient evidence supports the jury's finding that IBP discriminated against Millbrook because he is black. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("The ultimate question is whether the employer intentionally discriminated . . .").
Millbrook, 280 F.3d at 1174. The court, however, did not deem the question of pretext totally irrelevant in post-trial motions. Instead, the court quoted Reeves in noting that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id., quoting Reeves, 530 U.S. at 148.

The question the court must consider is whether a reasonable jury could have found that K & R's asserted justifications were false and, therefore, pretextual. If a jury could have found the justifications false, then Filipovich would appear to have sufficient evidence beyond his prima facie case to support his jury verdict. If not, no evidence of intentional retaliation would be present because K & R would have been justified in its discipline. Moreover, evidence simply showing that K & R's justifications were objectively false is not enough. The evidence must show subjectively that K & R did not believe its proffered reason for the adverse action. See, e.g., Essex v. United Parcel Serv., 111 F.3d 1304, 1310 (7th Cir. 1997) ("In examining pretext, the question is whether the employer honestly believed its proffered reason for [the adverse action]. The fact that the employer was mistaken or based its decision on bad policy, or even just plain stupidity, goes nowhere as evidence that the proffered explanation is pretextual.")

As K & R points out, Filipovich's only attempt to address the merits of the disciplinary letters on direct examination at trial was as follows:

Q. Now the various mistakes that have been alleged in these letters, did you commit them?
A. No Sir.

(Filipovich direct at 50.) K & R argues that no reasonable jury could have found the letters to be groundless based simply on this testimony.

In response, Filipovich first attempts to turn this analysis on its head by claiming that K & R "did not offer a shred of testimony or other evidence from any witness to establish that Mr. Filipovich had in fact committed the offenses set forth in the letters." (Filipovich Resp. at 3.) Filipovich then argues more broadly that other evidence is present by which the jury could have concluded that the letters were baseless and that K & R's reasons were pretextual and showed a retaliatory motive. Without citing to the record, Filipovich lists a sampling of the evidence he relies on, including that (1) K & R's employees and former employees admitted at trial that K & R failed to follow its own disciplinary policies in issuing the disciplinary letters to Filipovich; (2) Filipovich was a good to excellent worker prior to filing his EEOC charge of discrimination; (3) K & R issued Filipovich disciplinary letters that followed shortly after his EEOC charge was filed, but K & R retracted these letters in an attempt to persuade the EEOC that K & R was not discriminating against Filipovich; (4) almost immediately after the EEOC concluded its investigation, K & R issued Filipovich another disciplinary letter; (5) all the decision-makers involved in issuing the disciplinary letters possessed knowledge of Filipovich's EEOC filing and law suit; (6) during the time period immediately preceding Filipovich's filing of the EEOC charge he had been issued one disciplinary letter for mishandling freight compared to the nine he received after he filed his charge; and (7) prior to filing his EEOC charge Filipovich was never suspended compared to being suspended twice after filing his EEOC charge.

K & R attacks much of this evidence. For example, with respect to (1) above, K & R states that the differential treatment from other dockmen goes only to Filipovich's national origin claim, and cites to this court's memorandum opinion and order on summary judgment in support. Nowhere in that opinion, however, does the court say that this evidence is only relevant to the national origin claim as K & R suggests.

K & R argues, with respect to (3) and (4) above dealing with the disciplinary letters, that one such letter sent on January 8, 1998 for absteentism, shortly after the EEOC charge, was already ruled irrelevant by this court on a motion in limine. Moreover, K & R argues that the May 28, 1998 letter followed the EEOC charge by five months, thus being too remote in time. K & R also questions the relevance of Filipovich's claim that this letter was sent almost immediately after the EEOC concluded its investigation because it was the EEOC charge, and not the investigation, that was Filipovich's protected conduct. This argument, however, lacks persuasive force as Filipovich's claim is that the disciplinary letters were either revoked or sent in conspicuous timing with the EEOC investigation., According to Filipovich, this letter was sent after the EEOC investigation (and not earlier) so as to not influence the investigation. Finally, K & R attacks (5) above by arguing that no evidence was presented that decision-makers involved in the letters and suspension knew that Filipovich engaged in protected conduct.

K & R also presents evidence suggesting that Filipovich did, in fact, commit the actions that resulted in the disciplinary charges and ultimately the suspensions, most of which comes from K & R's cross examination of Filipovich. The court ...

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