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United States Equal Employment Opportunity Commission v. Autozone

November 8, 2011


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

Tuesday, 08 November, 2011 11:40:15 AM

Clerk, U.S. District Court, ILCD


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are the parties' post-trial motions, as follows: Defendants Motion for judgment as a matter of law, for a new trial or to amend judgment (#238); Plaintiff's motion for permanent injunction (#240); Plaintiff's amended motion for permanent injunction (#241); Plaintiff's motion to vacate taxation of costs (#234); and Plaintiff's motion for prejudgment interest (#242).


On June 19, 2009, this Court granted in part and denied in part AutoZone's motion for summary judgment. A jury trial was held as to the part of the case that had survived summary judgment, and the jury returned a verdict in favor of AutoZone. Judgment was entered (#167) in favor of AutoZone, and costs were taxed to EEOC. EEOC appealed the summary judgment ruling only, and the Seventh Circuit reversed.

A second trial was held as to the reversed portion of the case on June 2 and June 3, 2011. The jury returned a verdict in favor of the EEOC, awarding $100,000 in compensatory damages and $500,000 in punitive damages. The pending motions relate to the verdict in this second trial and to the judgment entered thereon.


In order to prove its ADA failure to accommodate claim, EEOC had to prove that AutoZone's employee, John P. Shepherd, was a qualified individual with a disability; AutoZone was aware of his disability; and AutoZone failed to reasonably accommodate his disability. Bragdon v. Abbott, 524 U.S. 624 (1998); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005). In this motion, AutoZone asserts that the evidence was insufficient as to two of those elements, namely that Shepherd was qualified and that AutoZone failed to accommodate his disability.

"Once a jury has spoken, we are obliged to construe the facts in favor of the parties who prevailed under the verdict." Tart v. Illinois Power Co., 366 F.3d 461, 464 (7th Cir. 2004). A party seeking to set aside a jury verdict "bears a heavy burden" and must show that "no rational jury could have brought in" the verdict. Maher v. City of Chicago, 547 F.3d 817, 824 (7th Cir. 2008).

When entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, the court must draw all inferences in favor of the nonmoving party...We may not make credibility determinations or reweigh the evidence. We must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses. We are particularly careful in employment discrimination cases to avoid supplanting one view of the credibility or weight of the evidence for that of the jury. This is because employment discrimination cases often involve sensitive and difficult issues of fact, and plaintiffs often have only circumstantial evidence on which to rely.

Id. at 472. See also Gower v. Vercler, 377 F.3d 661, 666 (7th Cir. 2004)(when reviewing jury verdict, court cannot substitute jury's finding as to credibility and weight of evidence.)

With respect to whether Shepherd was qualified to perform the essential functions of his job during the relevant time period, EEOC presented evidence that Shepherd had been promoted during that time period and had received a number of awards from AutoZone for excellent customer service, safety, loss prevention and the like. Shepherd's sales statistics exceeded those of other employees in his position, and his managers, including those called as adverse witnesses in the case, all testified that he was well above average in that respect.

As much as 80% of Shepherd's job was sales-related. The other 20% of his job included the tasks that created problems for him, such as stocking shelves and mopping floors. Shepherd testified that he was able to devise his own methods for lifting and carrying. He was not, however, able to devise a work-around for mopping floors, which is the focus of AutoZone's contention that he was not qualified.

AutoZone's corporate representative testified that mopping floors was an essential function of the job of anyone who worked in the store, including the parts sales manager. AutoZone asserts that this testimony was undisputed and must therefore be accepted at face value.

That is incorrect. This evidence came from a corporate representative, and a corporate representative is hardly a disinterested witness. The jury was entitled to view her testimony with an eye for bias. In addition, she had been hired by the company three years after Shepherd had left AutoZone employment, so her knowledge of in-store policy and practice during the time period in question was certainly not based on her own knowledge, yet another reason the jury was entitled to discredit her testimony.

The question boils down to what, if any, other evidence there was that mopping floors was an essential function of the position of parts sales manager. It is true that the employer's judgment is one factor that a jury may consider in deciding whether a function is essential. The employer's judgment, however, is not dispositive, and as demonstrated above, the jury in this case rejected that judgment.

EEOC introduced evidence - uncontradicted (and in some cases conceded) by AutoZone -that mopping was a chore that could be delegated by the parts sales manager to other employees. AutoZone also agreed that there were always two employees in the store at any given time. These two facts certainly cut against the conclusion that mopping was an essential function of Shepherd's job. As the Seventh Circuit noted in DePaoli v. Abbott Laboratories, 140 F.3d 668, 674 (7th Cir. 1998), it is proper to consider whether the employer actually requires all employees in a particular position to perform the allegedly essential function. AutoZone may well have thought it essential that the floors be mopped, but that is not the same thing as saying that it was essential that John Shepherd be the one to do the mopping.

The evidence also showed that the amount of time spent mopping was marginal, perhaps an hour a week. In some situations, that fact might not be dispositive, such as where a particular chore can only be completed by an employee with very specific skills. Obviously, that is not the case with a routine and unskilled task such as mopping floors.

AutoZone also argues that the limitations to which Shepherd testified with respect to certain personal care tasks requires the inference that Shepherd could not perform the essential functions of his job. But those arguments were made to the jury, which was entitled to reject them. Moreover, this argument apparently*fn1 goes only to mopping - AutoZone argues that the movements of the personal care tasks were "similar" to those of essential functions. It has already been demonstrated above that mopping was not an essential function.

Federal regulations list other factors that may determine whether a function is essential or fundamental to a particular position. 29 C.F.R. § 1630.2(n)(2) and (3). Other than testimony about the employer's judgment, AutoZone presented no evidence relevant to any of the other factors. In light of the reasons that the jury might reasonably have discounted AutoZone's corporate representative's testimony, and in light of the evidence EEOC put on with respect to the specifics of the chore of mopping, it was not unreasonable for the jury to have concluded that mopping floors was not an essential function of Shepherd's job. With the chore of mopping set to one side as non-essential, the evidence was sufficient to support the conclusion that Shepherd was qualified to perform the essential functions of his job.

AutoZone also claims that EEOC should be estopped from litigating Shepherd's qualifications, because the jury in the first trial found that Shepherd was not qualified to perform the essential functions of his job. But the first trial dealt with a different - and later - time period. The jury's finding for the later period has nothing to do with whether he was qualified during the earlier period. These two issues are entirely different. In order to claim estoppel, the party asserting it must show that the issues are the same. Washington Group Intern., Inc. v. Bell, Boyd & Lloyd LLC, 383 F.3d 633, 636 (7th Cir. 2004). AutoZone has failed to make this showing.

AutoZone next challenges the jury's finding that it failed to accommodate Shepherd's disability. According to AutoZone, there is evidence in the record that AutoZone did take steps to accommodate Shepherd's disability. That argument is beside the point. AutoZone is obligated to show that there is insufficient evidence to support the jury's finding, not that there is some evidence contrary to the jury's conclusion. Tart, 366 F.3d. at 472.

EEOC put on evidence - testimony by Shepherd and Wilmot - about Shepherd's superiors' requirement that he mop floors during this period, and about those superiors' directions to store managers to enforce that requirement. Shepherd and Wilmot also testified that Shepherd was told he would lose his job if he refused. The testimony of Shepherd and Wilmot is directly contrary to the testimony of AutoZone's witness, who testified that no such directions were given. The jury made its credibility determination. It is not for this Court to alter that determination.

Next, EEOC challenges the jury's award of punitive damages, arguing first that there was no evidence that the managers acted with the knowledge that their actions might violate federal law. Kolstad v. American Dental Ass'n, 527 U.S. 526, 536 (1999). This type of knowledge may be shown by evidence that managerial employees involved in the decision knew of or were familiar with anti-discrimination laws and employer polices for implementing those laws. Bruso v. United Airlines, 239 F.3d 848, 858 (7th Cir. 2001).

In the final pretrial order that governed the trial of this case, AutoZone stipulated that three of the relevant managers - Smith, Thompson, and Moore - had received training about the ADA. Each of them testified that they knew the ADA required that reasonable accommodations be made for employees with disabilities. In other words, there was evidence sufficient to submit the question of punitive damages to the jury, and there was evidence that the managers had the requisite knowledge to support an award of punitive damages.

AutoZone also asserts that the jury was required to accept its defense that it had made good faith efforts to implement an anti-discrimination policy, a defense that also would have precluded an award of punitive damages. For several reasons, that argument is rejected. First, no written policy was introduced into evidence, and it would not have been unreasonable for the jury to have concluded that if this defense were being seriously asserted, the policy would be in writing and introduced into evidence.

Even if the existence of a policy is assumed, however, more is required to succeed on this defense. There must also be evidence of the employer's efforts to enforce the policy. Bruso, 239 F.3d at 859; Cooke v. Stefani Mgt. Svcs., Inc., 250 F.3d 564, 568 (7th Cir. 2001). Here there was evidence that could have led the jury to conclude that AutoZone did not enforce any such policy: Smith and others higher up in the management chain were well aware of Shepherd's disability and of his and his doctor's requests to be relieved from mopping floors. Nonetheless, the jury obviously credited the testimony that Shepherd was still required by AutoZone management to mop floors and discredited the testimony contradicting Shepherd. The jury was not obligated to find enforcement under such circumstances. See, e.g., Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000); Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000), cited with approval in Bruso, 239 F.3d at 858 n.7.

There was sufficient evidence to find reasonable the jury's rejection of AutoZone's defense of good faith implementation and enforcement of an anti-discrimination policy. There is sufficient evidence to support the jury's finding that upper management had knowledge of their legal obligations under the ADA. Hence, an award of punitive damages was proper.

There being no basis for entering judgment as a matter of law, the motion for that relief is denied. For the same reasons, the motion for a new trial based on the Court's assessment of the general weight of the evidence is also denied.

AutoZone also moves for a new trial on a different ground, based on what it characterizes as this Court's improper treatment of Shepherd's treating physician as an expert witness. This issue was raised - and rejected - previously. See Order entered May 10, 2011 (Doc. #215). Nothing in AutoZone's motion persuades me that the Order was wrong the first time. This argument is therefore rejected here for the same reasons as were stated in that Order.

AutoZone next asserts that it is entitled to reduction of the amount of the verdict - $100,000 in compensatory damages and $500,000 in punitive damages. This issue is reviewed in the light most favorable to the jury's verdict. Gorlikowski v. Tolbert, 52 F.3d 1439, 1446 (7th Cir. 1995).

AutoZone presents a two-part argument, seeking reduction of both compensatory and punitive damages, first asserting that evidence does not support the amounts awarded by the jury, and second arguing that the judgment amounts exceed the statutory cap of $300,000.

Section 1981a provides in pertinent part that the sum of compensatory damages*fn2 and punitive damages for an employer the size of AutoZone*fn3 "shall not exceed ... $300,000." The statute does not prescribe a method for reducing damages in excess of this amount. It is apparent that the award of compensatory and punitive damages must be reduced at least to $300,000. The questions are whether the reduction should be taken from compensatory damages, punitive damages or both, and by how much the verdict should be reduced.

Reduction of the verdict amount, or remittitur, is an option that is offered to a plaintiff as an alternative to a new trial on damages. See, Hetzel v. Prince William County, VA, 523 U.S. 208(1998). Remittitur is discussed in a number of cases. See, Frazier v. Norfolk & Western Ry. Co., 996 F.2d 922, 925 (7th Cir. 1993); Joan W. v. City of Chicago, 771 F.2d 1020, 1023 (7th Cir. 1985);Levka v. Chicago, 748 F.2d 421, 425 (7th Cir. 1984); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th Cir. 1983); and Phillips v. Hunter Trails Community Assoc., 685 F.2d 184, 190 (7th Cir. 1982).

These cases explain that the test for remittitur is "severe," and remittitur is proper only if the jury verdict is "monstrously excessive" or if there is no "rational connection" between evidence of damages and the verdict. In addition, if the case is "one of a series of similar cases, the verdict must be comparable to the other verdicts. Thompson v. Memorial Hosp. of Carbondale, 625 F.3d 394, 408 (7th Cir. 2010); Joan W. v. City of Chicago, 771 F.2d 1020, 1023 ...

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