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Washington v. Office of State Appellate Defender

United States District Court, N.D. Illinois, Eastern Division

May 31, 2017



          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Alice Washington, who is African-American, sued her former employer, the Illinois Office of the State Appellate Defender (“OSAD”), alleging that OSAD reduced her salary and then fired her because of her race in early 2008, or alternatively, that she was fired in retaliation for her complaints about discrimination after the salary reduction. Washington also sued Michael Pelletier, the State Appellate Defender, in his personal capacity, but the court granted his motion to dismiss in late 2013. (Order (Sept. 12, 2013) [44].) OSAD moved for summary judgment on all of Washington's claims. The court granted the motion in part; Washington's race-based discrimination and retaliation claims survived. (Mem. Op. & Order (Mar. 23, 2015) [96].)

         At trial, the jury found in Washington's favor on her retaliation theory, awarding $400, 000 in compensatory damages. (Jury Verdict (Nov. 18, 2015) [151].) Both parties made motions regarding damages after trial; OSAD moved to bar damages that it claimed were undisclosed before trial and to enforce the statutory damages cap, and Washington requested equitable relief. The court reduced the compensatory damages to $200, 000 (Mem. Op. & Order (May 31, 2016) [184]), but awarded several categories of equitable relief-over OSAD's strenuous objections-amounting to $613, 029.44. (Mem. Op. & Order (Sept. 22, 2016) [193].)

         OSAD has now filed a motion for a new trial [199]. OSAD raises seven reasons in support: (1) Washington's grievance was not a protected activity for which she could be retaliated against, (2) a jury instruction identifying one of Washington's complaints as protected activity was erroneous, (3) there was no causal connection between her protected activity and her firing, (4) several pieces of evidence were improperly admitted or excluded, (5) a Batson challenge by Washington should not have been granted, (6) Washington's counsel made inappropriate comments during closing, and (7) the damages award was improper. A new trial can be granted for “any reason for which a new trial has heretofore been granted in an action at law in federal court, ” which encompasses procedural and substantive challenges. Fed.R.Civ.P. 59(a)(1)(A). OSAD's motion also requests relief under Rule 60(b)(6), which permits a court to grant a new trial for any reason that “justifies relief.” Fed.R.Civ.P. 60(b)(6). The court considers each ground below, but finds that the motion should be denied.

         I. Protected Activity

         Washington was terminated on February 4, 2008. The only protected activity preceding her firing was a formal grievance that she filed just five days earlier on January 30. (Step 1 Grievance Form, Alice Washington (Jan. 30, 2008), Ex. A to Def.'s Br. [202-1].) In the grievance, Washington complained: “On January 18, 2008, while out of the office on FMLA, after having surgery for a problem occurring from a previous breast cancer operation, I was sent an e-mail pertaining to a cut in salary.” (Id. at 1.) She went on to describe, at length, a pattern of race discrimination by Anna Ahronheim, the deputy defender in charge of the postconviction unit in which Washington worked. (Id. at 1-2.)

         An employer violates Title VII, or the ADA, when the employer takes an adverse employment action against an employee because the employee complained of discrimination prohibited by the relevant statute. See Dickerson v. Bd. of Tr. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601-02 (7th Cir. 2011) (ADA retaliation). An employee “need not use the magic words . . . ‘discrimination'” in complaining to an employer in order to trigger the protections of the anti-discrimination statutes, but must “say something to indicate [the protected class] is an issue.” See Sitar v. Indiana Dep't of Transp., 344 F.3d 720, 727 (7th Cir. 2003) (quoting Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1007-08 (7th Cir. 2000)). OSAD has maintained throughout this litigation, including at summary judgment, that Washington's grievance did not constitute protected activity because (1) it did not indicate that she was being discriminated against based on her disability, and (2) her complaints of racial discrimination concerned events that had taken place months, or even years, earlier. OSAD argues now that the court erred by admitting the grievance as protected activity, and that OSAD should therefore be granted a new trial.

         Washington points out, as a preliminary matter, that this argument and many others in OSAD's motion are purely legal in nature and could have been raised as a motion for judgment as a matter of law. See Fed. R. Civ. P. 50. Regardless, a party may properly file a Rule 59(e) motion asking the court for a new trial without moving under Rule 50 for a judgment in its favor, which is what OSAD seeks here. Avery v. City of Milwaukee, 847 F.3d 433, 438 (7th Cir. 2017).[1] On a motion for new trial, courts may consider each of the arguments OSAD raises. See Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 833 (7th Cir. 2016) (arguing evidence improperly admitted); see also Id. at 834-35 (considering whether jury instructions were erroneous), Jimenez v. City of Chicago, 732 F.3d 710, 714-15 (7th Cir. 2013) (considering improperly granted Batson challenge), Savino v. C.P. Hall Co., 199 F.3d 925, 935 (7th Cir. 1999) (arguing verdict against weight of evidence). The court will consider OSAD's arguments in the motion.

         Nevertheless, the court believes its previous ruling at summary judgment was correct: Washington's grievance makes a clear connection between the action she believed was discriminatory (the salary reduction) and her disability (her breast cancer and related treatment). (Mem. Op. & Order (May 23, 2015) [96], at 23-24.) She also explained her entire history with Ahronheim, which, she believed, demonstrated that Ahronheim was discriminating against her based on race. In the case upon which OSAD relies, Tomanovich v. City of Indianopolis, the Seventh Circuit found that an employee's complaint that he was subjected to “discriminatory treatment with respect to his pay, ” without any further indication of why he was being discriminated against, was not sufficient to constitute a protected activity. 457 F.3d 656, 663-64 (7th Cir. 2006) (affirming summary judgment). Here, Washington referenced two bases of discrimination in her grievance, and the court stands by its decision that her grievance constituted protected activity.

         II. Jury Instructions Regarding IDHR Complaint

         OSAD argues that the court erroneously issued a jury instruction regarding which of Washington's activities was protected and could stand as a predicate for a retaliation claim. An erroneous jury instruction is grounds for a new trial where a party shows “both that the instructions did not adequately state the law and that the error was prejudicial . . . because the jury was likely to be confused or misled.” United States v. White, 443 F.3d 582, 587 (7th Cir. 2006) (quoting United States v. Smith, 415 F.3d 682, 688 (7th Cir. 2005)). In this case, the court gave the following instruction:

Protected activities include making a charge of discrimination or otherwise participating in any manner in one's own charge of discrimination or retaliation investigation proceeding or hearing under Title VII. In this case, the plaintiff, Ms. Washington, asserts that she engaged in the following protected activities: Filed an internal grievance with OSAD and a complaint with the Illinois Department of Human Rights. The plaintiff must prove that she actually participated in protected activities, but the plaintiff does not have to prove that her underlying charge, investigation, proceeding, or hearing was successful.

(Tr. of Trial Proceedings (Nov. 16, 2016), Ex. C to Def.'s Br. [hereinafter “Tr.”] [202-3], at 545:8- 19.) OSAD contends that this instruction improperly identified the Illinois Department of Human Rights (“IDHR”) complaint as a protected activity, even though it occurred after Washington was fired and therefore could not be the predicate for a retaliation claim.

         It is undisputed that an IDHR charge is protected activity. See Silverman v. Bd. of Educ. of Chi., 637 F.3d 729, 740 (7th Cir. 2011), overruled on other grounds by Ortiz v. Werner Enterps., 834 F.3d 760 (7th Cir. 2016) (filing a formal charge “the most obvious form of statutorily protected activity.”). In a jury instruction that listed the protected activities in which Washington engaged, it made sense to identify the IDHR complaint, which falls clearly into the definition given to the jury. The jurors were aware that the IDHR complaint post-dated Washington's termination. They heard a great deal about the IDHR complaint in the trial, not as a predicate for an adverse employment action, but because of the phone call from Pelletier that it allegedly triggered: Washington testified that after the IDHR complaint (and after she had been fired), Pelletier called her, raged at her for filing the complaint, and threatened that she would not receive post-employment benefits or work for the state again. (Tr. 168:17-169:8.)

         Washington's charge did constitute protected activity, and any confusion the jury had should have been dispelled by the clear instruction on retaliation: “With respect to her forced resignation/retaliation claim, Plaintiff Washington must prove by a preponderance of the evidence that she was forced to resign because she complained of discrimination.” (Tr. 544:19- 22.) Both parties made clear to the jury that Washington's resignation occurred before the IDHR complaint; OSAD argued in closing that Pelletier made his decision before she even filed her grievance (Tr. 522:10-22), and Washington herself asserted that the decision was made after the grievance. (Tr. 534:9-19.) In context, including the IDHR complaint to preserve accuracy was not misleading to the jury, and OSAD suffered no prejudice.

         III. Causal Connection Between Grievance and Firing

         OSAD contends that the verdict was not consistent with the evidence because Pelletier made the decision to fire Washington before she filed her grievance on January 30, 2008, and before he became aware of it on February 1. (Tr. 407:3-7.) A plaintiff in a discrimination action can only succeed on a retaliation claim where the protected activity was the but-for cause of the employer's adverse employment action. Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 697 (7th Cir. 2017). At trial, Pelletier testified that he made the decision to terminate Washington around January 24th (Tr. 428:6-8), well before he became aware of the grievance on February 1st, because he believed she was a “ghost payroller” who was not completing full work days. (Tr. 406:16-21.) Because his decision pre-dated the grievance, OSAD argues, the grievance could not have been the but-for cause.

         A new trial should be granted where the verdict is against the manifest weight of the evidence. Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir. 2012). Pelletier's testimony about when he made his decision was not convincingly corroborated, and the rest of the timeline was not favorable for OSAD. Washington filed her grievance just a few days before she was fired on February 4, 2008. The jury evidently believed that Pelletier made that decision in the four days after he became aware of the grievance. This was not unreasonable, given Washington's testimony about Pelletier's threatening phone call that cemented his retaliatory motivation in their minds (Tr. 168:17-169:17), and Pelletier's uncertainty about Washington's insistence that he spoke with her after the termination:

Q. So, you don't recall whether you called her?
A. I don't hear that -- my testimony was I don't recall having a conversation with her. I've never called her on the phone, so calling her is different -- did I subsequently have a conversation with her? I don't recall. I may have. But I didn't -- never called her on the phone.
Q. And how would you have had this subsequent conversation with her?
A. I don't know. That's what I'm saying, I don't recall. I may have had a ...

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