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DELOUGHERY v. CITY OF CHICAGO

May 20, 2004.

DOLORES DELOUGHERY, Plaintiff;
v.
CITY OF CHICAGO and TERRY HILLARD, Defendants



The opinion of the court was delivered by: MATHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Dolores Deloughery and Marie Johnston, both lieutenants with the Chicago Police Department, sued the City of Chicago under Title VII of the Civil Rights Act of 1964, 42 U.S.C, § 2000e-5, and former Chicago police superintendent Terry Hillard under 42 U.S.C. § 1983. In their Title VII claim against the City, Deloughery and Johnston alleged that in failing to promote them to the position of captain, the City (through Hillard) had retaliated against them for filing charges of discrimination with the United States Department of Justice and the Illinois Department of Human Rights, and/or for complaining about and opposing discrimination within the Chicago Police Department. In their § 1983 claim against Hillard, Deloughery and Johnston alleged that Hillard's decision not to promote them was in retaliation for exercising their constitutional right of free speech.

A jury found in Deloughery's favor on her Title VII claim against the City and against her on her § 1983 claim against Hillard. The jury awarded her back pay in the amount of $18,000 and awarded damages for mental and emotional suffering in the amount of $250,000. The jury also found front pay in the amount of $282,000; pursuant to a ruling made on a motion in limine filed by defendants, this finding was advisory only with respect to the Title VII claim. The jury found against Johnston on both of her claims. The Court has previously denied Johnston's motion for a new trial, in which she argued that the jury's verdict on her claims was inconsistent with its verdict in Deloughery's favor on her Title VII claim.

  The City has moved for entry of judgment as a matter of law or for a new trial or a remittitur on the Title VII claim. Both sides have made submissions regarding the issue of front pay. Deloughery has moved for equitable relief, specifically a court — ordered promotion to captain, in lieu of all or part of a front pay award. In this Memorandum Opinion and Order, the Court rules on these issues.

 1. City's motion for judgment as a matter of law or for new trial or remittitur

  a. Claim of inconsistent verdicts

  The Court rejects Deloughery's argument that the City's motion for judgment as a matter of law must be denied on the ground that the City failed to move for judgment under Rule 50 at the close of the plaintiffs' case and failed to renew the motion at the close of the evidence. Though neither party has obtained the transcript from the court reporter, the Court's notes taken during the trial reflect that the City moved for judgment under Rule 50 at the close of the evidence, which is all that is necessary to preserve the point for renewal after trial. Compare Eastern Natural Gas Corp. v. Aluminum Corp. of America, 126 F.3d 996, 1000 (7th Cir. 1997) (cited by plaintiff; holding that Rule 50 motion was waived where it was not renewed at the close of the evidence).

  The City argues that the jury's verdict in Deloughery's favor on the Title VII claim is inconsistent with its verdict in Hillard's favor on the § 1983 claim. Even if true, this would not warrant the primary relief sought by the City, namely entry of judgment in its favor on the Title VII claim. As the Court stated in addressing a similar claim made by a defendant in another case:
A court cannot grant [judgment as a matter of law] in order to harmonize jury verdicts that appear to point in opposite directions. See, e.g., Mosely v. Wilson, 102 F.3d 85, 90 (3d Cir. 1996). If it appears that the jury returned inconsistent verdicts, the Court must first do its best to reconcile the verdicts on some theory consistent with the evidence. Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119 (1963); Cantellops v. Alvaro — Chapel, 234 F.3d 741, 744 (1st cir. 2000); Ward v. City of San Jose, 967 F.2d 280, 286 (9th Cir. 1992). If we cannot do so, however, it is improper to take the verdict favorable to one party and assume it is the "right" one, as [defendant] has asked us to do. Will v. Comprehensive Accounting Corp., 776 F.2d 665, 677 (7th Cir. 1985). Rather, the appropriate remedy is a new trial on all claims. Gordon v. Degelmann, 28 F.3d 295, 298-99 (7th Cir. 1994).
EEOC v. Mid — Continent Security Agency, Inc., No. 99 C 5381, 2001 WL 800089, at *2 (N.D. Ill. July 12, 2001). Thus even were the City correct that the verdicts are inconsistent, the remedy would be a new trial, not entry of judgment in the City's favor.

  In this case as in Mid — Continent, however, the jury's verdicts on Deloughery's claims were not inconsistent. The instructions given to the jury on the Title VII claim allowed it to return a verdict for Deloughery if it found the City had retaliated against her for filing charges with the Department of Justice and the Illinois Department of Human Rights, and/or for complaining about and opposing discrimination within the Chicago Police Department. See Instructions Given to the Jury, p. 15. By contrast, the instructions on the § 1983 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; the instruction stated that "activity in opposing discrimination in public employment is protected by the constitutional right of free speech." See id., p. 16. The Court agrees with the defendants that even though the Title VII claim was against the City, it was based entirely on Hillard's alleged conduct. But the jury reasonably could have found that Hillard based his decision not to promote Deloughery on her filing of charges with the DOJ and the IDHR and did not take into account her antidiscrimination advocacy within the Police Department. The Court agrees with Deloughery that the instructions on the § 1983 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 DOJ and IDHR charges. Thus the jury could have found for Deloughery on the Title VII claim based on a finding of retaliation for those complaints, and could have found for Hillard on the § 1983 claim based on a finding that he had not retaliated against Deloughery for her general antidiscrimination advocacy. The verdicts were not inconsistent.

  For these reasons, the Court denies the City's motion for judgment as a matter of law, as well as its motion for new trial based on the inconsistent verdict claim.

  b. Claim of excessive award of compensatory damages

  The City asks the Court to order a new trial or a conditional remittitur with regard to the jury's award of $250,000 in damages for emotional distress, arguing that the award is excessive. When reviewing an award of compensatory damages, the Court makes three inquiries: whether the award is "monstrously excessive," whether there is a rational connection between the evidence and the award, and whether the award is roughly comparable to awards made in similar cases. See, e.g., David v. Caterpillar, Inc., 324 F.3d 851, 864 (7th Cir. 2003); Tullis v. Townley Engineering & Mfg. Co., 243 F.3d 1058, 1066 (7th Cir. 2001).

  In making this analysis, it is important to bear in mind that our legal system confers on juries the function of placing a value on pain and suffering, both emotional and physical. Judges do not inherently possess more wisdom than jurors in performing this function, and as such we do not and should not have a "`chancellor's foot' veto," see United States v. Russell, 411 U.S. 423, 435 (1973), authorizing us to revise at will the jury's decision. In Tullis, Chief Judge Flaum, in approving a jury's award of $80,000 for emotional distress in a case in which the defendant contended that the award was excessive and sought to compare it with other purportedly similar cases in which awards of $40,000 and $50,000 were made, aptly said that a court, in assessing a damage award against a claim of excessiveness, should "take[] into account the jury's right to make awards based on its view of a witness's demeanor and credibility." Tullis, 243 F.3d at 1069.

  The City argues that the award is monstrously excessive and unsupported by the evidence because it was based exclusively on Deloughery's testimony without any supporting expert testimony, and because Deloughery conceded she never sought treatment from a physician or mental health professional for her distress. Though a plaintiff's consultation and treatment by mental health professionals is certainly a factor to be taken into account in assessing the reasonableness of a damage award, it is not a controlling factor. A given individual may have reasons unrelated to the severity of her distress for not seeking treatment (cultural, religious, or from her upbringing), and thus one cannot always draw from a failure to seek treatment an inference that the plaintiff suffered only minimal distress. And as Chief Judge Flaum noted in Tullis:
An award for non-pecuniary loss can be supported, in certain circumstances, solely by a plaintiff's testimony about his or her emotional distress. "It is within the jury's province to evaluate the credibility of witnesses who testify to emotional distress, and we shall not disturb those credibility determinations on appeal." The jury was able to observe [plaintiff] when he was testifying and they apparently found his testimony to be sincere and sufficient to convince them that he merited the award they gave him.
The jury, as seen by the amount they awarded [plaintiff], which some ...

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