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Tomao v. Abbott Laboratories

July 31, 2007

CAROL TOMAO, PLAINTIFF,
v.
ABBOTT LABORATORIES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Carol Tomao filed suit alleging that Abbott Laboratories ("Abbott"), incorrectly named as Abbott Laboratories, Inc., failed to hire her as a permanent Asset Technician and terminated her position as a contract Asset Technician because of her age and disability in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Tomao also claimed that Abbott retaliated against her for complaining about the unlawful discrimination, and that she relied to her detriment on Abbott's promise of a job. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and on August 16, 2006, the court granted in part and denied in part Abbott's motion for summary judgment. Tomao v. Abbott Labs., Inc., No. 04 C 3470, 2006 WL 2425332 (N.D. Ill. Aug. 16, 2006). The court found that issues of fact precluded summary judgment on Tomao's claims that (1) she did not receive the permanent Asset Technician position because of her age and/or disability, and (2) she was terminated in retaliation for complaining of discrimination. Id. at *7-10, 12. The court granted summary judgment, however, on Tomao's claims of discriminatory termination; retaliatory failure to hire; and promissory estoppel. Id. at *10-11, 12-13.

Abbott moved for reconsideration, arguing that the court overlooked Abbott's analysis of Tomao's retaliation claim under the McDonnell Douglas burden-shifting approach, and that the court made a mistake of fact in rejecting the company's legitimate, non-discriminatory explanation for hiring Thomas Pataska as the permanent Asset Technician -- i.e., an honest belief that he had the industrial/mechanical experience and communication skills necessary for the position, while Tomao did not. The court denied the motion for reconsideration on October 17, 2006. (Memorandum Opinion and Order of 10/17/06, Doc. 72.)

The court held a jury trial from February 5 through 9, 2007, and on February 9, 2007, the jury returned a verdict in favor of Tomao on all counts. Specifically, the jury found that Abbott (1) discriminated against Tomao because of her age in willful violation of the ADEA; (2) discriminated against Tomao based on her disability with reckless disregard or indifference to her protected rights; and (3) retaliated against Tomao with reckless disregard or indifference to her protected rights. The jury awarded Tomao $300,000 in compensatory damages and $2,400,000 in punitive damages on her disability discrimination claim; and $300,000 in compensatory damages and $3,000,000 in punitive damages on her retaliation claim. The court entered judgment in Tomao's favor consistent with the verdict on February 12, 2007.

Abbott has now filed a motion for judgment as a matter of law or in the alternative for a new trial or a remittitur of damages. Tomao opposes the motion and seeks post-trial equitable relief of back pay, front pay, and liquidated damages. For the reasons explained here, Abbott's motion for judgment as a matter of law or for a new trial is denied. Abbott's motion for a remittitur of damages, and Tomao's motion for equitable relief, are both granted in part and denied in part.

BACKGROUND*fn1

Tomao was born on November 9, 1937 and was over 60 years of age at all times relevant to this action. (Tr. 240.) Tomao started working at Abbott's North Chicago plant on January 19, 1998 as a contract Asset Technician. As a contract worker, Tomao was not an Abbott employee

but, instead, was assigned to work at Abbott through an employee placement search company called Mullins & Associates. (Tr. 243.) Tomao's responsibilities included inventorying and tagging new equipment or new parts of equipment, and then inputting that information into a computer database for accountability. (Tr. 244-45, 1004.) See also Tomao, 2006 WL 2425332, at *1. At the time, Abbott also employed two other Asset Technicians, Marlene Schreiter (born September 22, 1961) and Theresa Streib (born August 22, 1964), who performed the same duties as Tomao. Tomao, 2006 WL 2425332, at *1; (Tr. 1002-03.) The Asset Technicians reported to William Whitaker, Abbott's Asset Administration Group Leader. Whitaker, in turn, reported to Senior Supervisor George Edward Shorman, who reported to Abbott's Section Manager, David Taylor. (Tr. 248, 299, 706-07.)

A. Tomao's Disability

In June 1999, Tomao was diagnosed with lupus, a disease that causes the immune system to start attacking the body's healthy tissue. (Tr. 264.) By January 2001, she was under the care of Dr. Tammy Utset, Associate Professor of Medicine at the University of Chicago. (Tr. 263, 285.) Dr. Utset confirmed Tomao's lupus diagnosis, and further diagnosed her with secondary Sjögren's syndrome, which causes severe dry eyes and dry mouth; and with fibromyalgia, a chronic musculoskeletal pain condition. (Tr. 268, 270.) Tomao had to miss work approximately one day per month to undergo testing with Dr. Utset, but she found Whitaker to be "very understanding." (Tr. 285-86.)

B. The Asset Technician Position

Sometime in 2001, Shorman obtained "head count" -- i.e., budgetary approval -- for a permanent Asset Technician employee. During the trial, the parties strenuously disputed the requirements of this new position. Abbott argued that Shorman submitted a business plan to Dave Taylor proposing a restructure of the Asset Administration Group. Specifically, instead of having three Asset Technicians responsible for three separate maintenance zones (north, central, and south), the company would assign two Asset Technicians to perform all traditional asset tagging and input duties, and then hire a third Asset Technician to focus on preventative maintenance change requests. (Tr. 562, 563, 568, 569, 572.) Shorman's stated goal was to centralize the preventative maintenance function to obtain more accurate and efficient results. (Tr. 568.) According to Abbott, the new Asset Technician would need strong mechanical and industrial experience, and good communication skills. (Tr. 572.)

Tomao argued that the new Asset Technician did not in fact need any mechanical and industrial experience, noting, for example, that the job description posted on the company intranet said nothing about such skills. (Tr. 963-64, 976-77.) In any event, it was undisputed that Whitaker interviewed Tomao for the position on March 28, 2002, and that he informed her that he had already interviewed a very strong candidate named Thomas Pataska. (Tr. 319, 899.) It was also undisputed that, during the interview, Whitaker asked Tomao whether she thought she could go out there and climb around anymore, and stated that "we all like to feel as if we can do the things we were able to do when we were younger." (Tr. 625-26 (Whitaker).) The parties, of course, offered competing interpretations as to the significance of these statements.

C. Tomao's Termination

After the interview, Tomao called Whitaker and Human Resources Manager Lynn Faragher to complain about the way she was treated during the interview. (Tr. 475-76.) Tomao's next day at work was April 2, 2002. (R. 336.) When she got home that evening, there was a voice mail message from Ellen Merritt of Mullins & Associates telling her that her position with Abbott had ended, effective immediately. (R. 341, 366.) Abbott hired Thomas Pataska as its new permanent Asset Technician, though he did not start working in that position until June 3, 2002. (PX 28.) According to Abbott, Pataska had the necessary industrial, mechanical, and communications skills for the job.

D. The Jury Verdict

Following a five-day trial, the jury returned a verdict in favor of Tomao on all counts. The jury found that Abbott discriminated against Tomao because of her age and disability, and retaliated against her for complaining of unlawful discrimination. The jury found that these violations were willful and that Abbott had acted with reckless disregard or indifference to Tomao's protected rights. The jury awarded Tomao a total of $600,000 in compensatory damages and $5,400,000 in punitive damages.

Abbott has now filed a motion for judgment as a matter of law or, in the alternative, for a new trial on all of Tomao's claims. In the event these motions are denied, Abbott also seeks a remittitur of damages. Tomao has filed a separate motion seeking an award of back pay, front pay, and liquidated damages.

DISCUSSION

I. Motions for Judgment as a Matter of Law or for a New Trial

The standard for deciding a motion for judgment as a matter of law is "fundamentally the same" as the standard for summary judgment. Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d 922, 924 (7th Cir. 2000). The court must determine whether, viewing the evidence in the light most favorable to the party against whom judgment was entered, there was a "legally sufficient amount of evidence from which [the jury] could reasonably derive its verdict." Id. See also Hall v. Gary Community Sch. Corp., 298 F.3d 672, 675 (7th Cir. 2002). The court does not re-weigh the evidence or make credibility determinations, but must ensure that there is more than a "mere scintilla" of evidence to support the verdict. Filipovich v. K & R Express Sys., Inc., 391 F.3d 859, 863 (7th Cir. 2004). In this case, the question is whether Tomao presented enough evidence to permit the jury to conclude that she was the victim of discrimination and retaliation. Id. Rule 50 imposes a "high standard for overturning a jury verdict," and judgment as a matter of law is not appropriate unless the court determines that no reasonable jury could have returned a verdict in Tomao's favor. FMS, Inc. v. Volvo Constr. Equip. North America, Inc., No. 00 C 8143, 2007 WL 844899, at *2 (N.D. Ill. Mar. 20, 2007) (quoting Pierson v. Hartley, 391 F.3d 898, 903 (7th Cir. 2004)).

Rule 59(a) permits a court to grant a new trial "for any of the reasons for which new trials have heretofore been granted in action at law in the courts of the United States." FED. R. CIV. P. 59(a). See also ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541, 543 (7th Cir. 2003). "In practical terms, this means that a new trial should be granted 'only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the] conscience.'" FMS, Inc., 2007 WL 844899, at *2 (quoting Davis v. Wisconsin Dep't of Corrections, 445 F.3d 971, 979 (7th Cir. 2006)). See also Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1367 (7th Cir. 1996) ("A new trial may be granted where the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party.") (internal quotations omitted). A Rule 59(a) motion is not "a vehicle for parties to relitigate issues," but "a device properly used to correct manifest errors of law or fact or to present newly discovered evidence." S.E.C. v. Koenig, No. 02 C 2180, 2007 WL 1074901, at *7 (N.D. Ill. Apr. 5, 2007) (internal quotations omitted).

Abbott argues that it is entitled to judgment as a matter of law ("JMOL") or a new trial on all of Tomao's claims because (1) there is no nexus between Tomao's complaint of discrimination and her termination to support a retaliation claim; (2) Tomao did not produce evidence that she was clearly better qualified than Pataska for the Asset Technician position; and (3) there is no evidence that Abbott discriminated against Tomao based on her age or disability. Tomao disagrees, arguing that (1) Abbott is procedurally barred from pursuing a Rule 50 motion because it failed to renew that motion at the end of the trial or state the pertinent legal and factual bases for JMOL; and (2) she presented sufficient evidence to support the jury's verdict in any event.

A. Procedural Bar

Tomao argues that Abbott cannot pursue any relief under Rule 50(b) because it did not renew its Rule 50(a) motion at the close of all the evidence, and because its Rule 50(a) motion did not include the specific factual and legal arguments Abbott now advances to support JMOL. (Pl. Resp., at 4-5.)*fn2 Both arguments fail.

Seventh Circuit case law requires a defendant seeking JMOL to raise a Rule 50(a) motion at the close of the plaintiff's case, and to renew the motion at the close of all of the evidence. See Eastern Natural Gas Corp. v. Aluminum Co. of America, 126 F.3d 996, 1000 (7th Cir. 1997) ("[I]n order to preserve a motion for judgment as a matter of law which was not granted by the trial court, the motion must be renewed at the close of all the evidence.") Effective December 1, 2006, however, Rule 50(a) was amended to "delet[e] the requirement that a motion be made at the close of all the evidence." (2006 Advisory Committee Notes.) As the Advisory Committee Notes explain, "[t]his change responds to many decisions that have begun to move away from requiring a motion for judgment as a matter of law at the literal close of all the evidence." (Id.) Abbott clearly made a Rule 50(a) motion at the close of Tomao's case. (Tr. 929-31.) In light of the revised Rule 50, the court finds this sufficient to preserve Abbott's right to move for JMOL. See FED. R. CIV. P. 50(a)(2) ("A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury.") See also Voda v. Cordis Corp., No. CIV-03-1512-L, 2007 WL 950365, at *2 n.5 (W.D. Okla. Mar. 27, 2007) ("[T]he current version of Rule 50(b) deletes the requirement that a party can only renew a motion that was made at the close of the evidence. The court would thus be disinclined to deny defendant's motion based on a technicality that the Federal Rules of Civil Procedure now declares to be anachronistic.")

Tomao also argues that Abbott's Rule 50(a) motion did not make the precise arguments it now advances for JMOL. (Pl. Resp., at 5.) Specifically, Tomao claims that Abbott "failed to argue that there was 'no evidence that Abbott took any action against plaintiff after she complained of discrimination' or that Plaintiff's retaliation claim was beyond the scope of the EEOC charge." (Id.) Rule 50(a) requires that motions must specify "the law and facts that entitle the movant to the judgment." FED. R. CIV. P. 50(a)(2). "If a ground is not included in a [Rule 50(a)] motion prior to the rendering of the verdict, the moving party waives the ability to challenge whether that issue should have been presented to the jury for consideration." R.J. Reynolds Tobacco Co. v. Premium Tobacco Stores, Inc., No. 99 C 1174, 2004 WL 1613563, at *4 (N.D. Ill. July 19, 2004).

At the close of Tomao's case, Abbott moved for JMOL on the retaliation claim, arguing that Tomao's contract Asset Technician position "terminated pursuant to the contract simply -- the contract expired pursuant to an extension in December of 2001; and therefore, nothing that happened in March of 2002 had any bearing on the fact that [Tomao's] position was terminated." (Tr. 931.) Abbott also moved for JMOL on the discrimination claims, arguing a lack of any evidence that Tomao was "clearly better qualified for the position at issue" than Thomas Pataska. (Tr. 930.) Abbott made its theories for JMOL clear in various court documents and at trial, and the court is satisfied that these arguments fairly set forth the law and facts Abbott articulates here in support of JMOL. See Petit v. City of Chicago, 239 F. Supp. 2d 761, 767 (N.D. Ill. 2002) ("The Seventh Circuit has held that a failure to expressly state all grounds or expressly state a sufficient argument when the motion is presented at the close of the evidence will not result in waiver if previously presented arguments (in an earlier Rule 50(a) motion, in trial briefs, in motions in limine, on summary judgment, or otherwise) have made the moving party's position clear for the court and opposing party.")

Tomao is correct that in moving for JMOL on her retaliation claim, Abbott did not specifically argue that the claim was beyond the scope of her EEOC charge. (Pl. Resp., at 5.) Abbott did, however, raise this argument in its motion for summary judgment, and the court agrees with Abbott that such a legal argument may be reviewed even in the absence of a specific Rule 50(a) motion to that effect. See Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 718, 720 (7th Cir. 2003) ("The general rule . . . is that, after a trial on the merits, the court of appeals will not review the district court's earlier denial of a motion for summary judgment" in the absence of a Rule 50(a) motion; however, "if the legal question can be separated from the factual one, then we see no bar to reviewing the legal question notwithstanding the party's failure to raise it in a motion for judgment as a matter of law at trial.")

The court also rejects Tomao's contention that Abbott waived its objection to the retaliation claim by agreeing to the related jury instructions and verdict form. (Pl. Resp., at 9.) Tomao directs the court to Will v. Comprehensive Accounting Corp., 776 F.2d 665 (7th Cir. 1985), in which a defendant argued that the evidence was insufficient to support a jury's award of damages because the jury was not instructed to exclude arbitration costs. Id. at 675. The court noted that the defendant did not propose such an instruction, and held that Rule 51 "requires us to assume that the instructions given were correct; in a civil case each party must live with the legal theory reflected in instructions to which it does not object." Id.

More recently, the Seventh Circuit has recognized that "it seems clear that a party need not object to jury instructions to urge a [JMOL] based on different standards." Hystro Prods., Inc. v. MNP Corp., 18 F.3d 1384, 1392 n.6 (7th Cir. 1994) (citing Boyle v. United Technologies Corp., 487 U.S. 500, 513-14 (1988)). Here, Abbott does not dispute that the instruction given was correct, but claims that the court erred in denying its motions for summary judgment and for JMOL. In these circumstances, Abbott's failure to object to the accuracy of the instruction does not render it the "law of the case." See City of St. Louis v. Praprotnik, 485 U.S. 112, 120 (1988) (failure to object to a jury instruction did not render the instruction the "law of the case" where "the focus of petitioner's challenge is not on the jury instruction itself, but on the denial of its motions for summary judgment and a directed verdict.")

B. Retaliation Claim

Abbott claims that it is entitled to JMOL or a new trial on Tomao's retaliation claim because (1) she did not include such a claim in her EEOC charge; and (2) there is no nexus between Tomao's complaint of discrimination and Abbott's decision to terminate her contract Asset Technician position. The court considers each argument in turn.

1. Scope of EEOC Charge

A plaintiff suing under the ADEA or ADA must first file a charge with the EEOC. Evoy v. Illinois State Police, 429 F. Supp. 2d 989, 999 (N.D. Ill. 2006). In pursuing a subsequent federal court action, the plaintiff may only bring those claims that were included in the original charge, that are like or reasonably related to the allegations of the charge, or that grow out of the charge. Gawley v. Indiana Univ., 276 F.3d 301, 313 (7th Cir. 2001). The purpose of this exhaustion requirement is to give the EEOC an opportunity to settle the parties' dispute, and to put the employer on notice of the charges against it. See, e.g., Horton v. Jackson County Bd. of County Comm'rs, 343 F.3d 897, 899 (7th Cir. 2003).

In its August 16, 2006 Memorandum Opinion and Order denying summary judgment on this issue, the court concluded that though Tomao did not mention retaliation in her EEOC charge, the allegations described the same conduct and implicated the same individuals as the discrimination claims. Tomao, 2006 WL 2425332, at *12 (citing Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994)). Based on a careful review of the EEOC investigator's notes, the court found that Tomao's retaliatory termination claim was like or reasonably related to her asserted discrimination claims and could reasonably be expected to grow out of that investigation. Id. (citing Farrell v. Butler Univ., 421 F.3d 609, 616 (7th Cir. 2005)).

Abbott did not seek review of this decision in its motion for reconsideration, but it now argues that the court's ruling is "in opposition to settled Seventh Circuit precedent." (Def. Mem., at 7.)*fn3 In Abbott's view, the Seventh Circuit has made clear that claims of retaliation simply are not "like or reasonably related to" substantive claims of discrimination. In Sitar v. Indiana Dep't of Transp., 344 F.3d 720 (7th Cir. 2003), for example, the court held that the plaintiff's sex discrimination and sexual harassment claims were not like or reasonably related to her claim of retaliatory termination because they involved "a separate set of incidents, conduct, and people, spanning over a period of time prior to the filing of her complaint and more than three months prior to her termination." Id. at 726-27. See also Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 544 (7th Cir. 1988) (retaliation claim did not fall within the scope of the plaintiff's EEOC charge where "[t]here [wa]s no mention of retaliation or any other words to that effect."); O'Rourke v. Continental Cas. Co., 983 F.2d 94, 97 (7th Cir. 1993) (reversing jury finding of retaliation where the EEOC charge "did not identify the exercise of a protected right or any adverse consequence," and the EEOC did not learn about the earlier discharge and reinstatement until a year later).

The court agrees that generally, retaliation and discrimination claims are not sufficiently related to permit an EEOC charge of one to support a civil suit for another. Cheek, 31 F.3d at 501. "An exception exists, however, where such claims are so connected in terms of time, people, and substance that to ignore the connection would undermine the remedial purpose of Title VII in favor of an overly technical application of the law." Lopez v. Indiana-Kentucky Elec. Corp., No. 4:04-CV-0169-DFH-WGH, 2006 WL 3247892, at *10 (S.D. Ind. Aug. 17, 2006) (citing Sitar, 344 F.3d at 726-27). In addition, the Seventh Circuit has "adopted a liberal standard for reviewing the scope of an EEOC charge," Farrell, 421 F.3d at 616, and cautioned that "[w]hat boxes . . . are checked on the EEOC form do not necessarily control the scope of a subsequent civil complaint." Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993).

In her lawsuit, Tomao alleged that she was summarily discharged, without notice, after complaining to Whitaker and Faragher about unlawful discrimination with respect to her interview for the permanent Asset Technician position. The EEOC investigator's notes confirm that Tomao complained of discrimination in connection with Whitaker's interview; that she contacted Faragher to complain about the interview; and that she reported that her termination "was handled unusually. That is[,] the way [Abbott] handled someone in a suspected theft or serious conduct." Tomao, 2006 WL 2425332, at *12. Correspondence from Tomao's counsel to Abbott's counsel during the EEOC proceedings, moreover, includes the following statement: "[A]fter [Tomao] had spoken with Abbott Human Resources regarding the problems we have brought to Company's attention, her lock was cut from her Abbott locker, and a recording was left on her home telephone answering machine instructing her not to return to Abbott and advising her that her contract had been canceled." (Letter from W. Provenzano to R. Martinez of 6/17/02, Doc. 39-32, at 17.) All of the events at issue occurred at the same time, and the EEOC charge and the complaint describe the same conduct and implicate the same individuals. Easley v. Iberia Airlines, No. 05 C 3760, 2007 WL 625515, at *3 (N.D. Ill. Feb. 23, 2007) (quoting Cheek, 31 F.3d at 502). Abbott does not argue that it was in fact prejudiced by the limited EEOC charge, and the court again declines to grant Abbott JMOL or a new trial on the grounds that Tomao did not include a retaliation claim in that document. Kristufek, 985 F.2d at 369.

2. Nexus Between Complaint of Discrimination and Adverse Action

Abbott argues that even if it were proper for the jury to consider Tomao's retaliation claim, the Company is still entitled to JMOL or a new trial because Tomao did not present any evidence that Abbott terminated her contract Asset Technician position based on her complaints of discrimination. See Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659, 665 (7th Cir. 2006). In Abbott's view, the Company made the decision to end Tomao's contract on December 7, 2001, months before she complained of discrimination in March 2002. Abbott notes the testimony from Terri Mullins of Mullins & Associates that in December 2001, Abbott extended Tomao's contract only until March 29, 2002. (Tr. 863-64.) Abbott argues that the fact that Tomao's contract expired by its own terms effective March 29, 2002 precludes any finding that Abbott decided to terminate Tomao in response to her subsequent complaints of discrimination. (Def. Mem., at 7; Def. Reply, at 6.)*fn4

Tomao, however, points to additional evidence from which the jury could have determined that Abbott retaliated against her. For example, Shorman, Whitaker, and Taylor all denied having any involvement in the decision to terminate Tomao's contract assignment as of March 29, 2002, though they were her direct supervisors. (Tr. 529, 551-52 (Shorman), 721-22, 768-69 (Taylor), 881-82 (Whitaker).) In addition, Whitaker testified that he told Tomao on March 28, 2002 that he would need her to remain in her contract position for two more months in order to train the new Asset Technician. (Tr. 320, 326.) Shorman testified, further, to his understanding that Tomao's contract position would continue until the new position was actually filled, which did not occur until June 2002. (Tr. 553, PX 28.) Mullins, moreover, testified that she had no prior notice that Tomao's contract would not be extended again after March 29, 2002. (Tr. 872.) Indeed, Tomao was scheduled to work on April 1-5 and 8, and she did in fact work a full day on April 2, after her contract had supposedly expired. (Tr. 885, 889.) Tomao also had Abbott parking and security passes that remained valid for several months past the March 29, 2002 date. (Tr. 340-41.)

In addition to casting doubt on Abbott's stated explanation for her discharge, Tomao presented evidence that she complained to Whitaker and Faragher about her discriminatory interview on March 28, 2002, and that Faragher refused to discuss the matter. (Tr. 338-39, 812-13, 914.) Notably, Faragher testified that she may have been the person responsible for terminating Tomao's contract position five days later on April 2, 2002. (Tr. 820.) See, e.g., Lang v. Illinois Dep't of Children and Family Servs., 361 F.3d 416, 419 (7th Cir. 2004) ("Close temporal proximity provides evidence of causation . . . .") The court finds that based on all of this evidence, the jury could reasonably have concluded that Tomao established her claim of retaliation, and that Abbott's explanation that Tomao's contract had simply expired was not credible. Abbott's motion for JMOL or for a new trial on the retaliation claim is denied.

C. Discrimination Claims

Abbott next argues that the jury's verdict on Tomao's discrimination claims cannot stand because there is no evidence that Abbott selected Thomas Pataska over Tomao for the permanent Asset Technician position because of Tomao's age or disability. The Company first argues that Tomao failed to present any evidence that she was "clearly better qualified for the position at issue." See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 738 (7th Cir. 2006) (citing Ash v. Tyson Foods, Inc., 126 S.Ct. 1195, 1197 (2006) (discussing "the standard for inferring pretext from superior qualifications.") As ...


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