The opinion of the court was delivered by: Murphy, District Judge
Before the Court is Plaintiff Deborah Cook's motion for new trial, timely made pursuant to Federal Rule of Civil Procedure 59 (Doc. 102). She argues that three issues warrant a new trial: (1) inconsistency between the Court's "decisionmaker" jury instruction, and related answer to a jury question during deliberation, with the Supreme Court's decision in Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011); (2) special verdict form given in violation of Federal Rule of Civil Procedure 49(a)(1)(B); and (3) admission of "hearsay documents" in violation of Federal Rules of Evidence 801, 802, 803, 804, 805, 901, and 608. The Court has carefully considered counsels' arguments and DENIES the Rule 59 motion.*fn1
Mrs. Cook filed her complaint against Defendant IPC International Corporation on April 9, 2009, claiming sexual discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Doc. 4). IPC is a private security company that provided security for the Alton Illinois Mall, where Mrs. Cook worked as a mall security supervisor. In her sexual discrimination claim, she alleged that her "boss and supervisor," Charlie Spann, made sexually offensive comments to other women and told her he only wanted male security officers working with him. Mrs. Cook's retaliation claim is that when she complained to Charlie Spann about his offensive comments she was fired. Mrs. Cook explicitly pleaded in her complaint that the adverse employment action was termination.
IPC put on evidence that Mrs. Cook was not fired, but was offered a transfer to work at another mall. Both sides elicited testimony from IPC regional manager Scott Colburne that, though someone up the chain of command made the decision to offer Mrs. Cook a transfer, he was the IPC official that made the transfer offer to her. The jury heard evidence that this transfer would have been to one of two other malls, and would have included a pay-raise. Mrs. Cook stuck to her guns, however, and told both the jury and the Court she was terminated and that termination, not a transfer, was the "adverse employment action" forming the basis of both her sexual discrimination and retaliation claims.
At a sidebar, the Court asked Mrs. Cook's counsel who at IPC allegedly made the decision to terminate Mrs. Cook. Counsel answered that Charlie Spann, Mrs. Cook's direct supervisor, was the decisionmakerSbut counsel went on to tell the Court that Charlie Spann was the decisionmaker because he fed false information about Mrs. Cook up the IPC chain of command. Then the Court asked counsel if Mrs. Cook was attempting to proceed on a cat's paw theory of liability.*fn2 Counsel answered that IPC had obfuscated who the actual decisionmaker might have been when they failed to respond to certain interrogatories. After this sidebar, Mrs. Cook presented evidence that Charlie Spann had discriminatory intent and terminated her employment by cleaning out her locker and taking her keys. At a later sidebar, the Court told Plaintiff's counsel that Plaintiff had made no mention of a cat's paw theory in any papers; had failed to submit a cat's paw jury instruction; and had not pitched a cat's paw theory of liability to the jury. There was no evidence that Charlie Spann, the actor with the discriminatory animus, had any influence over any other IPC manager. The Court informed counsel that the Court therefore did not intend to give a cat's paw instruction.
During Defendant's direct examination of Scott Colburne, counsel objected to admission of an e-mail, purportedly written by Alton mall IPC employee Dane Spaulding to Scott Colburne at the behest of Charlie Spann. The e-mail complained to Mr. Colburne of misconduct Mrs. Cook allegedly committed at work. She objected that the document was hearsay and lacked foundation. Defendant argued that Plaintiff had already moved an unsigned version of the e-mail into evidence, and that the e-mail was an IPC business record, not offered for the truth of the matter asserted. IPC argued that the letter was evidence that Plaintiff did have issues with co-workers, whereas Mrs. Cook had testified that she did not have a problem with co-workers. The Court gave IPC the opportunity to lay a foundation for the e-mail, and IPC established that the witness, Mr. Colburne, received the document, kept the document on file, and passed the same to other IPC managers. Mr. Colburne testified that he kept the document as part of performance of his IPC duties and that it was the regular course of business to keep such documents on file. The Court overruled the objection and admitted the document. The Court reasoned on the record that Defendant was not trying to prove that the events alleged in the e-mail actually occurred (i.e. IPC was not asking to admit the documents as hearsay). The issue was not whether the litany of Mrs. Cook's transgressions was accurate in whole or in part. Rather, this was information that Mr. Colburne had in hand regarding Mrs. Cook. Commerce and industry are thankfully not subject to the Federal Rules of Evidence, as this would surely in short order arrest most forward progress. When Mrs. Cook was re-called as a rebuttal witness, she disputed the accusations in the Dane Spaulding e-mail.
Mrs. Cook also objected to the admission of a fax allegedly authored by Joseph Dumey, an IPC security officer at the Alton mall, on the same grounds as the Spaulding e-mail. The fax listed concerns that Mr. Dumey allegedly had about Mrs. Cook's employment at the Alton mall. Mr. Colburne testified that he received and read the fax, submitted it to IPC's corporate office, and relied upon it during the process of deciding whether to transfer Mrs. Cook to another mall. Mrs. Cook's counsel pointed out to the jury, in the form of an objection to Defense questioning, that it was not clear that Joseph Dumey had actually authored the fax. The fax was admitted for the same reason the e-mail was admitted: Mr. Colburne was free to use or disregard this information as he saw fit.
That the Defense did not call Dane Spaulding was the subject of an objection during the formal jury instruction conference. Plaintiff had submitted an instruction modeled on the Seventh Circuit's Pattern Civil Jury Instruction No. 1.19 to inform jurors that they could, but were not required to, assume that the testimony of certain IPC employees not called by the Defense would have been unfavorable to the Defendant.*fn3 The Court declined to give such an instruction because co-worker statements had been admitted, not to assert the truth of the allegations against Plaintiff, but as IPC business records which were kept and considered by IPC management.
At the formal jury instruction conference, Plaintiff also objected to the Court's instruction 18 and the Court's special verdict form regarding a decisionmaker. Instruction 18 stated as follows:
In order to find for the Plaintiff Deborah Cook on Claim 1, Claim 2, or both, you must find that a decisionmaker for IPC fired Plaintiff either because she was female or because she complained about sexually harassing comments. The decisionmaker is the IPC employee who was responsible for the decision to terminate Plaintiff. Here, Plaintiff has alleged that her supervisor Charles Spann was the IPC decisionmaker who terminated her employment. In order to find for the Plaintiff on Claim 1, Claim 2, or both, you must find, by a preponderance of the evidence, that Charles Spann was the IPC decisionmaker responsible for Plaintiff's termination. (Doc. 82). The "decisionmaker" verdict form read:
Do you, the Jury, find that Charles Spann was the IPC International Corporation decisionmaker who terminated Deborah Cook's employment? Yes No If your answer to the above question is "No" then you will not answer any additional questions. All jurors should sign the verdict form. If your answer is "Yes" then proceed to the following questions: (Doc. 83). The marked copy of Instruction 18 noted that it was for the purpose of clarifying employer liability in a Title VII claim, citing Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372, 378-79 (7th Cir. 2011) ("[Plaintiff] had to provide direct or circumstantial evidence that the decision-maker has acted for a prohibited reason. A decisionmaker is the person responsible for the contested decision."). The Court responded to Plaintiff's objection, reasoning on the record that Plaintiff had only adduced evidence that Charlie Spann had discriminatory animus, and, consequently, it would be very easy for the jury to be confused and believe that a cat's paw theory was in play.
During deliberation, the jury sent out a question to the Court asking for clarification on the "decisionmaker" verdict form. The jury asked if they needed to find that Charlie Spann was "the" decisionmaker meaning the "sole" decisionmaker or "a" decisionmaker (Doc. 96). The Court heard argument from counsel on the question: Plaintiff asked for "a" decisionmaker; Defendant asked for "sole" decisionmaker. The Court returned an answer to the jury that "he" meant the "sole" decisionmaker (Doc. 96). The jury, answering question two on the Special Verdict, found that Mr. Spann was not the ...