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Mary Woods v. Von Maur

June 7, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Mary Woods sued her former employer, Von Maur, Inc. ("Von Maur"), a department store chain, alleging that Von Maur terminated her because of her race and because she complained about racial profiling of members of her family while they shopped at Von Maur. Following the close of evidence at trial before a jury, Von Maur orally moved for judgment as a matter of law as to liability and Woods orally moved for judgment as a matter of law as to mitigation of damages, both of which were denied. A jury returned a verdict for Von Maur as to Woods' discrimination claim, a verdict for Woods as to her retaliation claim, and determined that Woods failed to mitigate damages. Von Maur now renews its motion for judgment as a matter of law, and moves in the alternative for a new trial, as to Woods' retaliation claim. Woods moves for judgment as a matter of law with respect to Von Maur's defense of failure to mitigate (and in the alternative for a new trial), and also moves for the application of prejudgment interest to back pay damages and for the equitable remedies of reinstatement or front pay.


For purposes of a motion for judgment as a matter of law, all inferences are drawn in favor of the non-movant Woods. Woods' retaliation claim arises out of a complaint she made during the spring of 2007 to her supervisor Katie Tucker and to other personnel at Von Maur. Von Maur hired Woods in 2003. (11/14/11 Trial Tr. 221). Katie Tucker was Woods' floor manager starting in 2004, and Gwen Ivory her department manager (11/14/11 Trial Tr. 223-4). Ivory drafted Woods' annual performance reviews in 2005, 2006 and 2007. (11/14/11 Trial Tr. 227-8). Tucker did not draft the reports, but signed off on them as manager. (11/14/11 Trial Tr. 228, 11/16/11 p.m. Trial Tr. 44, 49). In each of those years, Woods received a "fully meets expectations" rating from Ivory, approved by Tucker. (11/14/11 Trial Tr. 231-234).

Woods generally liked her job at Von Maur, and enjoyed working in retail, but she did notice on several occasions conduct that Woods believed suggested that Von Maur employees treated African-American customers differently than white customers. (11/14/11 Trial Tr. 265). In spring of 2007, Von Maur witnessed her family members come into the store, only to be followed around the store by Tucker, including up escalators and between departments. (11/15/11 Trial Tr. 47-49). Woods believed that Tucker's actions were "blatant racism." (11/15/11 Trial Tr. 134). Tucker followed Woods' family until Woods intervened and introduced the customers to Tucker as family members and mentioned that she hoped that they had not been followed because they were black. (11/15/11 Trial Tr. 51). Woods raised the incident again with Tucker, and with human resources manager Michelle Neurath, each within the week following the incident, and stated that she hoped that the customers were not being followed around the store on account of their race. (11/15/11 Trial Tr. 45-46, 51, 53). Neither Tucker nor Neurath took any notes of the conversations in Woods' presence, and Woods never received a follow-up call from management regarding the complaint. (11/15/11 Trial Tr. 54).

As part of her employee benefits, Woods had a 20% employee discount on merchandise that she purchased for herself or for her family. (11/14/11 Trial Tr. 242). Woods used her discount often, and occasionally made returns. Id. On July 12, 2008, Von Maur terminated Woods on account of two employee discount price policy violations. (Plaintiff Trial Ex. 16 at 5). As to the first alleged violation, Woods bought a sweater at a price of $43 on May 31, 2008. Two weeks later, she purchased a second sweater for her sister, who wears the same size, for $29. (11/14/11 Trial Tr. 248-49). Her sister did not like the sweater and asked Woods to return it. Woods returned the higher-priced sweater, as neither had been worn and both had their tags. (11/14/11 Trial Tr. 248-49). There was no written policy at Von Maur that made this action a violation of employee policy (11/14/11 Trial Tr. 251). As to the second violation, on June 20, 2008 Woods purchased a blouse for $52 (minus her discount). She returned it 10 days later after deciding she did not like the blouse, and received a refund, again minus her discount (11/14/11 Trial Tr. 253). When Ivory stopped by a few days following Woods' return of the blouse, pointed out that the blouse had been marked down to $19, and recommended that Woods buy it, she purchased it again. (11/14/11 Trial Tr. 254). Again, there was no policy at Von Maur that barred Woods' purchase and re-purchase of the blouse. (11/14/11 Trial Tr. 256)Woods did not work the shift that made initial markdowns, so she did not know when she returned the blouse that it would soon be marked down. (11/14/11 Trial Tr. 254).

Elizabeth Jaggi was the Glenview store manager at the time of Woods' termination. Jaggi testified she received a call from the Von Maur corporate office after their computer system flagged the sweater and blouse transactions as suspicious use of the employee discount privilege. (11/16/11 a.m. Trial Tr. 170). Jaggi testified that it was standard practice at Von Maur to contact the floor manager of the floor on which an employee worked when the computer system flagged a price adjustment abnormality, and discuss the incident and a good time for meeting with the employee. (11/16/11 a.m. Trial Tr. 171-72). The floor manager would take notes as Jaggi conducted her interview investigation with the employee. (11/16/11 a.m. Trial Tr. 173). Jaggi testified that she alerted Tucker to the transactions, discussed them with her, and that Tucker was present and taking notes during the meeting with Woods. (11/16/11 a.m. Trial Tr. 177-78, 189-90. 194. 196). According to Woods, Jaggi told Woods at the investigatory interview that she would investigate the incidents, and Woods both provided the explanation as to the sweater purchase, and advised Tucker and Jaggi that they should speak with Ivory, who would confirm that she suggested that Woods repurchase the blouse. (11/14/11 Trial Tr. 258). Woods also testified that she did not at any point claim that the blouse had been "damaged out." Id.

Nine days later, Jaggi called Woods into her office and advised her she was being terminated due to the two violations of the price adjustment policy. (11/14/11 Trial Tr. 260-61). Woods did not remember whether she mentioned to Jaggi at the termination meeting that she believed she was being terminated on account of her reporting her observations about the treatment of African-American customers, although she was certain she told Jaggi that her termination was unfair. (11/15/11 Trial Tr. 170). Ms. Nadovi, another floor manager, was present at the second meeting instead of Ms. Tucker (who was not working that day) and testified that at the second meeting, Woods mentioned that Jaggi should speak with Ivory about the blouse. (11/17/11 a.m. Trial Tr. 86).

Jaggi confirmed on examination that Tucker was involved in all parts of the investigation. (11/15/11 a.m. Trial Tr. 89). Jaggi also confirmed that termination for employee price adjustment violation was not mandatory, but discretionary based upon her investigation. Jaggi testified that she did not review Woods' personnel file, take into account the positive annual reviews, or talk to Ivory about the return and repurchase of the blouse (11/16/11 a.m. Trial Tr. 99, 102). Jaggi also testified that even if she had talked to Ivory and Ivory had verified Woods' story that Ivory gave her permission to repurchase the blouse, Jaggi still would have recommended that Woods be fired. (11/16/11 a.m. Trial Tr. 119). Woods presented evidence that two other employees, each of whom were white, committed violations of the price policy (in one case, by ringing up her own discounted merchandise, and in another, by using a store credit card to purchase, but neither employee was terminated. (11/15/11 Trial Tr. 77). The two white employees were not fired after investigation by Jaggi, while two black employees were fired following price adjustment violations. (11/15/11 Trial Tr. 246-48, 11/16/11 a.m. Trial Tr. 121-35).

Amy Rotert, the regional manager for Von Maur, ultimately approved Jaggi's recommendation to terminate Woods. Rotert testified that she relied on Tucker's notes of the meeting between Tucker, Jaggi, and Woods, which notes contained no reference to any explanation as to the sweater, and listed by way of explanation of the blouse that Woods claimed the blouse had been "damaged out." (11/17/11 p.m. Trial Tr. 34-35). Rotert also relied on Tucker's call to report that the "damaged out" explanation did not match the computer records. Rotert testified that if there had been an explanation for a supposed violation, that is something that should have been communicated to her in evaluating a decision to terminate. (11/17/11 p.m. Tr. Trans. 39-40).

Following termination, Woods managed to pick up some additional shifts at her other job as patient services assistant for a psychiatrist's office, but was unable to find a second job to replace her part-time job at Von Maur until April 2009. (11/15/11 Trial Tr. 66). In April 2009, she obtained a part-time position at Home Goods, making $7.75 per hour, down from $10.50 per hour plus 1% commission at Von Maur . (11/15/11 Trial Tr. 65, 70). After two months, Woods left the Home Goods job as the hours were less than she had hoped and the commute too onerous. (11/15/11 Trial Tr. 66).


After a jury has returned a verdict, a non-prevailing party that moved for judgment as a matter of law during the course of the trial may renew that motion pursuant to Federal Rule of Civil Procedure 50(a) and request that the court enter judgment in its favor notwithstanding the jury's verdict. Fed. R. Civ. P. 50(b). If "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [prevailing] party," it may enter judgment as a matter of law for the non-prevailing party. Fed. R. Civ. Proc. 50(a) and 50(b).

When deciding a renewed motion for judgment as a matter of law, a court's review is "limited to determining only whether any rational jury could have found for the plaintiff, examining all evidence in the record to make that determination." Hicks v. Forest Pres. Dist. of Cook County, Ill., -- F.3d --, 2012 WL 1324084 at *3 (7th Cir. 2012) (citing Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 150 (2000)). A court considering a motion for judgment as a matter of law must limit its inquiry "to whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed...." Mathur v. Bd. of Trs., 207 F.3d 938, 941 (7th Cir.2000) (internal citations omitted). The court may not "step in and substitute its view of the contested evidence for the jury's." Id. (citation omitted); therefore, the court may not re-weigh the evidence, resolve conflicts in the testimony in favor of the ...

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