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Smith v. Farmstand

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

July 14, 2017

ROBERT SMITH, Plaintiff,
ROSEBUD FARMSTAND, et al., Defendants.


          Robert M. Dow, Jr. United States District Judge.

         Before the Court are Defendants' motions to amend the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(b) [315] and for a new trial or reduction of damages through remittitur [316]. For the reasons set forth below, the Court denies Defendants' motion to amend [315] and grants in part and denies in part Defendants' motion for a new trial or remittitur [316].[1]

         For Plaintiff's sexual harassment claim under Title VII of the Civil Rights Act (Claim 1), the Court reduces Plaintiff's compensatory damages to $50, 000 and vacates any punitive damages award pursuant to 42 U.S.C. § 1981a(b)(3). For Plaintiff's racial harassment claim under 42 U.S.C. § 1981 (Claim 2), the Court remits Plaintiff's compensatory damages to $80, 000 and his punitive damages award to $160, 000. For Plaintiff's retaliation claim (Claim 3), the Court remits Plaintiff's compensatory damages to $60, 000 and his punitive damages award to $120, 000. For Plaintiff's Illinois Gender Violence Act claim (Claim 4), the Court remits the jury's damages award against Defendant Roque Mendoza to $1, 000 in compensatory damages and $2, 000 in punitive damages and the award against Defendant Carlos Castaneda to $1, 500 in compensatory damages and $3, 000 in punitive damages. Plaintiff must file on the docket a statement indicating whether he accepts or rejects remittitur. If Plaintiff accepts remittitur, the parties' joint submission on attorney's fees under Local Rule 54.3 will be due seven days after Plaintiff has so advised the Court and opposing counsel. If Plaintiff does not accept remittitur within 14 days of this order, the Court will grant Defendants' motion for a new trial on damages only and will defer consideration on attorney's fees until after the new trial.

         I. Background[2]

         Defendant Rosebud Farmstand operates a grocery store on the south side of Chicago. Plaintiff Robert Smith worked as a butcher in Rosebud's meat department from 2003 through 2008. Plaintiff is African American, and many of Rosebud's other employees are Latino. Most of the workers in the grocery store are paid minimum wage. In 2011, Plaintiff sued Rosebud Farmstand, alleging that Rosebud employees sexually harassed and racially discriminated against him during his employment. He also alleged that Rosebud retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and the Illinois Department of Human Rights (“IDHR”), and their retaliatory conduct forced him to quit his job. Plaintiff further alleged that two of Rosebud's employees, General Manager Carlos Castaneda and Assistant Manager Roque Mendoza, committed acts of gender violence against him.

         Plaintiff filed a six-count complaint, asserting claims for sexual harassment, racial harassment, retaliation, and constructive discharge pursuant to Title VII of the Civil Rights Act of 1964, a violation of the Illinois Gender Violence Act (“IGVA”), and racial harassment and retaliation in violation of 42 U.S.C. §1981. [1.] In November 2012, the Court granted Defendants' motion to dismiss Plaintiff's Title VII racial harassment and constructive discharge claims, but otherwise denied the motion. [30.] In December 2014, the Court granted summary judgment in favor of Defendants Castaneda and Mendoza for Plaintiff's Section 1981 claims. [165] In November 2015, the Court granted Defendant Rosebud's motion for summary judgment on Plaintiff's IGVA claim. [224.] After running this gauntlet, Plaintiff's Title VII sexual harassment claim, Section 1981 racial harassment claim, Title VII retaliation claim, and Section 1981 retaliation claims survived to be pursued against Rosebud and his IGVA claim survived to be pursued against Castaneda and Mendoza.

         Because Plaintiff sought compensatory and punitive damages and equitable relief through his claims, the Court bifurcated the trial such that Phase I would be a jury trial covering liability on all claims and Phase II would be a bench trial covering equitable relief. In December 2015, the parties proceeded to trial. After seven days, the jury returned a verdict for Plaintiff on all counts and awarded $2, 407, 500 in damages. [246.] The jury's verdict broke down as follows:



Sexual Harassment (Title VII)

$250, 000.00

$500, 000.00

Racial Harassment (Section 1981)

$250, 000.00

$500, 000.00

Retaliation (Title VII & Section 1981)

$250, 000.00

$500, 000.00

IGVA - Castaneda

$50, 000.00

$100, 000.00

IGVA - Mendoza

$2, 500.00

$7, 500.00


$802, 500.00

$1, 605, 000.00

Grand Total

$2, 407, 500.00

         Following the jury trial, the Court held a two-day bench trial on Plaintiff's requests for equitable relief. In September 2016, the Court denied Plaintiff's motions for judgment as a matter of law [237, 238, 242, 243], awarded Plaintiff $69, 761.80 in back pay and $19, 894.77 in prejudgment interest, and denied the remainder of Plaintiff's requests. [See 293; 297; 310; 311.] Defendants have moved to amend the Court's Phase II findings of fact and conclusions of law [315], and requested a new Phase I trial or remittitur of the jury's damages awards [316].

         II. Legal Standard

         Federal Rule of Civil Procedure (“Rule”) 52(b) permits a court to “amend its findings- or make additional findings-and * * * amend the judgment accordingly” upon a motion by a party. A Rule 52(b) motion is “intended to correct manifest errors of law or fact or to present newly-discovered evidence.” U.S. ex rel. Russo v. Attorney Gen. of Ill., 780 F.2d 712, 716 n.4 (7th Cir. 1986). The moving party “must raise questions of substance by seeking reconsideration of material findings of fact or conclusions of law to prevent manifest injustice or reflect newly discovered evidence.” 9 Charles A. Wright & Arthur R. Miller, Fed. Prac. and Proc. § 2582 (2017). The “primary purpose” for such a motion is to “enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and the judgment entered thereon.” Id. It is not to relitigate arguments lost, advance new theories, or present new evidence that could have been presented before. Id. “Trial courts do not grant motions to amend when the amendment would be futile.” Id.

         A motion for a new trial is governed by Rule 59(a), which directs that “[a] new trial is appropriate if the jury's verdict is against the manifest weight of the evidence or if the trial was in some way unfair to the moving party.” Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014). When considering whether the jury's verdict goes against the manifest weight of the evidence, the Court analyzes the “general sense of the evidence, assessing the credibility of the witnesses and the comparative strength of the facts put forth at trial.” Mejia v. Cook Cnty., 650 F.3d 631, 633 (7th Cir. 2011) (citations omitted). But “[a] verdict will be set aside as contrary to the manifest weight of the evidence only if ‘no rational jury' could have rendered the verdict.” Moore ex rel. Estate of Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (quoting King v. Harrington, 447 F.3d 531, 534 (7th Cir. 2006)). “Jury verdicts deserve particular deference in cases with ‘simple issues but highly disputed facts.'” Id. (quoting Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995)).

         III. Rule 52 Motion

         Before turning to the substance of Defendants' motion to amend the Court's findings of fact and conclusions of law [315], the Court addresses Plaintiff's two threshold arguments that the Court should disregard Defendants' motion.

         First, Plaintiff argues that Defendants violated the Court's “order” limiting “posttrial motions” to 25 pages and Defendants' briefs should be stricken. [322, at 1-2.] The Court entered no such order. The Court did grant Defendants' motion for leave to file a longer memorandum “in support of [their] motion for new trial and remittitur pursuant to Fed.R.Civ.P. 59” [303, at 1 (capitalization altered)]. [See 305.] That request did not speak to any motion other than a Rule 59 motion, and nothing in the Court's order purported to cap the total number of pages for all posttrial motions or preclude a separate Rule 52 submission. Defendants' Rule 52(b) motion is eight pages and did not require prior leave of the Court. See N.D.Ill. L.R. 7.1. Plaintiff's “motion to strike” [322, at 1] is denied.

         Second, Plaintiff argues that Defendants' motion is untimely because it was filed more than 28 days from September 9, 2016. [322, at 2.] Plaintiff skips over the fact that the Court “vacated” its September 9 order and entered a “new final judgment order” to “incorporate[] both the matters tried to the Court and the matters tried to the jury [the prior] December (which were inadvertently omitted from the [September 9] final judgment order).” [297.] That order set the deadline to file any Rule 59 motions at October 14, 2016-28 days from the judgment. Id. Plaintiff essentially argues that the Court reset the deadline for Rule 59 motions, but not Rule 52 motions. Both rules have the same “hard” deadlines. Coldwate v. Alcatel-Lucent USA, Inc., 587 F. App'x 315, 317 (7th Cir. 2014). Neither can be moved. It would make little sense for the 28-day clock to run against the vacated September 9 order for Rule 52(b) motions, but not for Rule 59 motions, and Plaintiff does not offer any basis in the Federal Rules that could support such a result. Defendants' Rule 52(b) motion-like their Rule 59 motion-is timely.

         A. Defendants' Claimed Legal Errors

         Defendants argue that the Court's Phase II opinion contained two “errors of law that should be corrected for the appellate court.” [315, at 2.] Both legal “errors” relate to the Court's back pay decision. The Court held that Plaintiff had satisfied his initial burden to establish a back pay amount [311, at 22-26], but that Defendants had failed to meet their burden to show that for all relevant time periods (1) Plaintiff failed to exercise reasonable diligence to mitigate his damages; and (2) there was a reasonable likelihood that Plaintiff would have been able to find comparable work by exercising reasonable diligence. Id. at 26-41. The Court distinguished between Plaintiff's unemployment in Arizona from 2008 through 2011 and his unemployment in Chicago from August 2012 to September 2013, and found that Defendants had only shown that Plaintiff had not exercised reasonable diligence in the latter period. Id. at 35. However, the Court found that Defendants did not show that comparable work was available to Plaintiff during this period, in part because Defendants relied on an expert witness whom the Court excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         Defendants first acknowledge that “the Court articulated the correct legal standards” regarding its back pay analysis. [315, at 2.] Nevertheless, Defendants argue that the Court erred in its conclusion that Plaintiff met his initial burden of proof. Id. at 2-3. Defendants assert that Plaintiff “offered no evidence in his case in chief * * * of his claimed damages beyond his own testimony, ” but the Court “unilaterality attempted to satisfy [his] burden for him.” Id. Defendants argue that the Court should include the “legal conclusions” that Plaintiff failed to satisfy his burden, “the Court incorrectly attempted to carry his burden for him, ” Plaintiff presented “false and incredible testimony” instead of “competent evidence of his damages, ” and “no bay pay award can be justified based on the record before the Court.” Id.

         This argument lacks merit. Defendants do not pinpoint any specific “error of law” in the Court's legal analysis. They do not claim that the Court considered legally improper evidence. And they do not ever say how exactly the Court improperly applied the correct law to the facts of this case. They simply argue that Plaintiff failed to satisfy his initial burden. But that argument completely overlooks the evidence in the record and how it got there.

         Notably, Defendants submitted Plaintiff's weekly time sheets into evidence before the Phase II hearing. [262-1, at 1-15.] At the Phase II hearing, Plaintiff testified about his typical regular and overtime hours. [See Tr. Apr. 4, 2016, at 61-65.] In the middle of that testimony, Defendants' counsel raised the issue of admitting Plaintiff's time sheets and even tried to read those documents into the record during Plaintiff's direct examination. Id. at 64. As the Court explained, there was no reason to take specific testimony from Plaintiff on whether he remembered his hours from over a decade ago when his actual hours records were available. Id. at 64-65. The Court stated that if there was no reason to dispute the accuracy of these records (and Defendants do not seriously contend that their own time sheets are inaccurate), then these records would be part of the Phase II record. Id. Moreover, Defendants filed a motion to supplement the Phase II record with “copies of Rosebud Farm, Inc. business records from 2004- 2008 reflecting pay information for Plaintiff including Plaintiff's W-2s and employee payroll journal statements that break out regular pay and overtime pay where applicable.” [272, ¶ 2.]

         The Court relied on Defendants' business records in conjunction with relevant testimony, Plaintiff's own backpay calculations [see 278, at 37-38; 280-25], and other readily available information (such as the increases to Illinois' minimum wage) in deciding whether Plaintiff had satisfied his initial burden. [311, at 22-26.] Defendants could have chosen not to submit any evidence and simply argued that Plaintiff had failed to meet his burden. They did not. Instead, they bolstered the record by submitting documentary proof of Plaintiff's historical earnings. Defendants cannot now complain that the Court should have disregarded the evidence that they added to the record when evaluating if Plaintiff's burden was met based on the record.

         Defendants' second “manifest error of law” was the conclusion that they had failed to satisfy their burden to show that “there was a reasonable chance [Plaintiff] might have found comparable employment.” [315, at 3.] Defendants again emphasize Plaintiff's lack of credibility and that “he lied on every [job] application he completed.” Id. at 4. More to the point, Defendants argue that Plaintiff “had been a consistent employee at Rosebud Farmstand for five years, ” which “supports an inference he had a reasonable chance of being employable for another entry-level minimum wage job.” Id. Defendants also rely on “common sense, ” claiming Plaintiff testified that he applied for thousands of jobs and he would have had a reasonable chance of “obtaining jobs” had he not omitted his criminal history from his job applications. Thus, Plaintiff's “own testimony about availability and his own testimony about lying support the legal conclusion [that Plaintiff] had a reasonable chance of finding comparable employment if he was truthful based on the facts here as applied to the law.” Id. (emphasis by Defendants).

         As with Defendants' first argument, it is difficult to see how Defendants have identified an “error of law”-let alone a manifest error. Defendants were required to identify “comparable employment, ” which is defined as a position that affords the prevailing party “virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status as the position from which she was discharged.” Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994). Defendants still do not point to specific record evidence establishing a “reasonable likelihood” that Plaintiff would have found a “comparable job” with reasonable diligence. Id. Defendants' claim that Plaintiff had a reasonable chance of finding another “minimum wage job”-maybe comparable, maybe not-based on the fact he worked for Rosebud for five years is speculative and underdeveloped. Defendants certainly do not cite any case law suggesting that the Court was required to credit this vague assertion as a matter of law. The same is true of Defendants' unsubstantiated claim that Plaintiff could have obtained a job had he disclosed his prior criminal convictions on his job applications. Even assuming that Plaintiff never disclosed his criminal convictions on any job application, it is hard to see why full disclosure would have made it more likely (as a mere matter of probabilities) that he would have found a comparable job. And again, if this was a legal error, Defendants do not identify any law that requires a different result.

         Finally, Defendants' claim that the “Court's failure to factor [Plaintiff's] lack of truthfulness into its analysis of Defendants' ability to fully develop its proof to support its failure to mitigate defense was, respectfully, an error of law” is wrong on multiple fronts. [325, at 4.] Credibility determinations are not errors of law. Defendants do not explain how they were inhibited from “fully” developing their proof or why Plaintiff's lack of credibility precluded them from showing whether comparable jobs were available in the market or there was a reasonable likelihood that Plaintiff could have secured one of those jobs. Nor do they cite any law suggesting that a court must “factor” such credibility issues into a holding that a defendant did not meet its affirmative defense burden. Regardless, the Court extensively discussed Plaintiff's credibility issues in the context of Defendants' failure to mitigate defense, noting the many inconsistencies in Plaintiff's description of his job seeking efforts. [See 311, at 29-34.] To say that the Court failed to consider Plaintiff's credibility in its analysis is to ignore the opinion that the Court wrote. Id. at 32 (“The Court concludes that Defendants, having successfully attacked Plaintiff's credibility, have met their burden in showing that Plaintiff was not reasonably diligent in seeking employment during the 13-month period spanning August 2012 to September 2013.”). Neither alleged “error of law” requires correction.

         B. Defendants' Claimed Factual Errors

         Defendants identify seven alleged factual errors in the Court's opinion-errors which must be “manifest” and pertain to “questions of substance” to warrant relief under Rule 52(b). Defendants' errors fall far short of that standard. Most concern additional facts that Defendants wish the Court would add to its opinion, not factual errors on substantive issues that would meaningfully change the Court's analysis. All can be described as quibbling on the margins.[3]Nevertheless, the Court will address each factual “error” that Defendants protest.

         First, Defendants argue that the Court erroneously “omitted * * * from its summary” of Plaintiff's post-Rosebud job seeking regimen that Plaintiff testified that “in addition to five hours each day he spent on line and then walking the streets for three hours in a four-mile radius in Mesa, ” he also testified that he “spent another five hours after that three days a week going to employment agencies in Mesa.” [315, at 5.] As Defendants acknowledge, the Court provided a “summary” of the testimony. Defendants fail to explain why omitting this one fact from a summary was either a manifest error or bears on a question of substance in the Court's opinion. The Court concluded that Plaintiff's job search efforts in Arizona “fell somewhere between the hyperbolized story that Plaintiff presented” and a “trickle” of job applications. [311, at 33.] Leaving one more gratuitous example of Plaintiff's hyperbole out of the opinion was not error.

         Second, Defendants note that Plaintiff did not provide “evidence relating to the funds he received * * * from the Illinois Department of Employment Security [‘IDES'], ” as the Court requested. [315, at 5.] Defendants argue that “[t]he Court appears to overlook the significance of this factual issue its [order], which bears directly” on the back pay award. Id. The Court considered and declined to deduct Plaintiff's unemployment benefits from his back pay award. [311, at 44.] Defendants fail to explain how this collateral “factual issue”-presumably, Plaintiff's failure to produce to Defendants evidence regarding the funds that he received from IDES [297, at 22]-had any impact on the Court's factual findings. Plaintiff's failure to produce evidence of a benefit that the Court concluded it would not deduct from the back pay award did not impact the award's size either way.

         Third, although the Court “acknowledge[d] the limited number of written [job] applications” that were produced in response to subpoenas, “[t]he Court ignores, however, the impact of how [Plaintiff] completed those applications and the mistakes he made and the lies he told on his potential entitlement to back pay for those periods” and this should be “incorporated into the back pay discussion.” [315, at 5.] It is not clear what factual error Defendants believe needs to be corrected in the Court's opinion based on this testimony. The Court discussed “the various false statements that Plaintiff made on his job applications” in its original opinion and how they “chip away at Plaintiff's credibility” and “strengthen Defendants' efforts to show that Plaintiff failed to mitigate his damages.” [311, at 31.] The Court did not “ignore” this evidence or omit this evidence from its back pay discussion, and Defendants' failure to articulate how this evidence should be “incorporated” proves that very point.

         Fourth, Defendants argue that the Court “misstates the facts” about how Plaintiff traveled to work at one of his jobs and is inconsistent with other testimony that he used his girlfriend's car, rather than his aunt's car, to get to work. [315, at 6.] Defendants claim that Plaintiff did not offer records to show that the car he used broke down or that this is why he quit his job, and this “lack of credibility should be acknowledged” in the record. Id. Absent from this argument is any explanation as to how Defendants think that this issue is a “matter of substance” or “manifest” error that must be corrected. Even so, the Court stated that “Plaintiff testified that he was using his aunt's car to drive from Gilbert, AZ to Tempe, AZ for his job at Washington Inventory Service.” [311, at 42.] That sentence mirrors Plaintiff's testimony. [See Tr. Apr. 4, 2016, at 102-03.] That Defendants believe this testimony was also inconsistent with other evidence does not mean the Court misstated Plaintiff's testimony in its opinion.

         Fifth, Defendants argue that the Court should include in its opinion that Plaintiff “testified he lied on every application he completed about his criminal background which amounted to 5000 applications according to his testimony.” [315, at 6.] Both facts are already in the Court's opinion. [See 311, at 31 (stating, “This evidence does not substantiate Plaintiff's claim that he spent eight hours per day applying for jobs throughout his four years of unemployment, which would have yielded hundreds if not thousands of applications” and noting that Plaintiff had not included his criminal history on some job applications.).] Defendants fail to persuade the Court that any more detail is needed to avoid a “manifest error.”

         Sixth, Defendants argue that Plaintiff “offered no evidence” beyond his own testimony “that he quit his job at Labor Ready because he enrolled in college” and that “the Court committed an error of fact in giving [Plaintiff] mitigation credit during this period” in light of the “absence of any school records.” [315, at 6.] Yet Defendants proposed findings of fact on this exact subject notwithstanding Plaintiff's lack of school records. [See 279, ¶ 42 (“Smith testified he was a full-time student from September 2010 to the fall of 2011 taking classes six days a week for six hours a day.”); id. ¶ 43 (“Smith testified he stopped looking for work because he decided to go to school and he did not look for jobs while he was in school”).] It is hard to see how the Court erred in finding that Plaintiff testified that he was enrolled in college [311, at 42] when Defendants argued that the Court should make this finding and reduce Plaintiff's backpay award based on that finding [279, ¶ 151]. Of course, Defendants do not cite any case law- indeed, they cite nothing-suggesting that Plaintiff was required to submit his school records before the Court could evaluate whether Defendants met their burden to show that Plaintiff was not entitled to back pay while he was in school. That is because there is no obligation. Defendants have failed to show that Court committed a “manifest” factual error on this issue.

         Seventh, Defendants argue that Plaintiff “changed his story * * * about the timing of his planning to move to Arizona” in the Phase II trial. They argue that “[t]he Court overlooked a significant portion of” Plaintiff's testimony when it stated, citing page 86 of the trial transcript, that Plaintiff's “admission lacks any substantive detail, such as when Plaintiff spoke about moving to Arizona.” [311, at 45.] Plaintiff's actual testimony on cross-examination was

Q: Isn't it accurate you talked to your family about moving to Arizona before you left Rosebud Farmstand?
A: Yes.

[Tr. Apr. 4, 2016, at 86.] If there is “substantive detail” in this exchange about when Plaintiff had this conversation, the Court does not see it. The time period of “before you left Rosebud” does not refer to a time, date, or even a year. Such an open-ended and undefined time period does not qualify as “substantive detail.” Defendants' counsel could have asked additional questions to clarify this time period, but they did not. Moreover, Defendants do not explain how adding the phrase “before you left Rosebud” to the opinion would have actually changed the Court's analysis when the Court already acknowledged that “Defendants' theory raises a yellow flag as to the timing of events leading up to Plaintiff's move.” [311, at 45.] The Court's description of this testimony was not a factual error warranting relief under Rule 52(b).

         Accordingly, Defendants' motion to amend the Court's findings of fact and conclusions of law pursuant to Rule 52(b) [315] is denied.

         IV. Rule 59 Motion

         Defendants advance seven arguments in favor of a new trial or remittitur: (1) Plaintiff's “false testimony” in the Phase II equitable hearing “mandates” overturning the jury's verdict in Phase I; (2) Plaintiff's closing argument was improper; (3) Plaintiff violated several motion in limine rulings; (4) Title VII's damages caps require reducing the jury's verdict; (5) the compensatory damages for Plaintiff's federal claims were “grossly excessive”; (6) the punitive damages for Plaintiff's federal claims were unconstitutionally excessive; and (7) the damages for Plaintiff's Illinois Gender Violence Act claim were not supported by the testimony. [316.] The Court takes each argument in turn.

         A. Whether Plaintiff's Phase II Testimony Requires A New Phase I Trial

         Defendants correctly note that when this Court was the factfinder in the Phase II equitable hearing, the Court made several adverse findings about Plaintiff's credibility based on his Phase II testimony. [See 311, at 30-33, 45.] According to Defendants, Plaintiff's “rampant lying and providing false testimony in Phase II, when the jury no longer was present, supports the undeniable conclusion that [Plaintiff's] testimony before the jury during Phase I similarly suffered from the same infirmities.” [316, at 8.] Defendants' argument has two features: (1) Plaintiff's subsequent testimony and the Court's credibility findings about that testimony are sufficient to set aside the jury's verdict; and (2) the Court's “pre-trial evidentiary rulings had a prejudicial impact on Defendants' ability to expose [Plaintiff's] significant credibility problems.” Id. at 9-10. Neither argument can succeed.

         Defendants' first contention conflates multiple issues. To start, a district court “cannot grant a new trial just because it believes the jury got it wrong.” Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir. 2012). The relevant issue for a Rule 59 motion is not whether Plaintiff's testimony-standing alone and regardless of all other evidence in the case-was credible; it is whether the jury's verdict is against the “manifest weight of the evidence.” Venson, 749 F.3d at 656. “In conducting its own assessment of the evidence presented, the district court cannot remove a piece of evidence from the calculus merely because the court believes it was not credible and then, with that piece excluded, grant a motion for a new trial because the verdict is now against the weight.” Mejia v. Cook Cty., Ill., 650 F.3d 631, 633 (7th Cir. 2011). “[T]he district court is bound to the same evidence the jury considered, and can strike a piece of evidence from its weighing process only if ‘reasonable persons could not believe' it because it ‘contradicts indisputable physical facts or laws.'” Id. Defendants do not attempt to show that the inconsistencies in Plaintiff's Phase I and II testimony satisfy this standard.

         Furthermore, Phases I and II involved different factfinders who decided different questions based on different witnesses' testimonies. In Phase I, it was “the jury's job-not the district court's job * * *-to figure out who's telling the truth.” Lowe v. Consol. Freightways of Delaware, Inc., 177 F.3d 640, 643 (7th Cir. 1999). Defendants cite no authority by which a judge can substitute his or her credibility assessments from one stage of a bifurcated trial for the jury's assessments at another stage. In the typical case, the judge “does not act as a 13th juror in approving or disapproving the verdict.” Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995) (citations and internal quotations omitted). That principle is not inapplicable simply because this case involves equitable and legal issues that were required to be bifurcated.

         Likewise, the fact that Plaintiff's Phase II testimony had credibility problems does not equate to a finding as a matter of law that every single statement Plaintiff ever made under oath was a lie. The sheer breadth of Defendants' argument shows its unworkability. Plaintiff did not testify in a vacuum. The jury heard from other witnesses who corroborated various aspects of Plaintiff's allegations, including his racial harassment claims. [See, e.g., Tr. Dec. 8, 2015, at 270; 272, 278-79; Tr. Dec. 10, 2015, at 928-929, 938-39.] The jury also heard from Defendants' witnesses, who had significant credibility issues of their own. [See, e.g., Tr. Dec. 12, 2015, at 1119.] In the context of this case, the claim that the jury should have concluded that Plaintiff was lying makes little headway where the jury reached the same conclusions about Defendants. In short, the jury in this case weighed conflicting testimony and the many, many inconsistencies in the record and decided to credit Plaintiff's allegations over Defendants' denials.[4] “That was the jury's prerogative, ” and it was not against the manifest weight of the evidence. Lowe, 177 F.3d at 642-43. The Court will not override the jury's conclusion based on this Court's separate responsibility for determining credibility in a different stage of the case.

         To be clear, Defendants are correct that “[i]f a verdict is based on false testimony, the district judge has the discretion under Rule 59 to grant the injured party a new trial.” Antevski v. Volkswagenwerk Aktiengesellschaft, 4 F.3d 537, 540 (7th Cir. 1993). To satisfy this standard, however, Defendants “must show that they maintained a meritorious claim at trial and that because of [Plaintiff]'s fraud or misrepresentation-in this case, the presentation of false testimony-they were prevented from fully and fairly presenting that claim.” Othman v. City of Chi., 2016 WL 612809, at *2 (N.D. Ill. Feb. 16, 2016) (collecting cases). Defendants do not come close to doing so.

         First, Defendants never establish that Plaintiff's testimony was false. Rather they claim that the Court has “good reason to believe that [his] Phase I testimony was equally implausible” as his Phase II testimony. [316, at 10.] For example, Defendants argue that Plaintiff's “trial testimony about being subject to daily” racial and sexual harassment over a five-year time period “is strikingly similar in style to his incredible description of his job search efforts.” Id. at 9. That kind of loose comparison does not prove falsity. Moreover, Defendants note that Plaintiff gave “false testimony” in Phase II “about where he lived, the cars he drove, how he looked for jobs and his lies about his criminal history [on his job application].” Again, none of that testimony on collateral issues establishes that Plaintiff testified falsely that he was subject to racial and sexual abuse by Defendants. Indeed, Defendants mostly highlight examples where Plaintiff's Phase II testimony was inconsistent. “But in order to warrant a new trial, inconsistencies are not enough; the evidence presented at trial must be false, and [Defendants] must prove the falsity-a form of fraud under Rule 60(b)(3)-by clear and convincing evidence.” Othman, 2016 WL 612809, at *3; White v. Anthology, Inc., 2009 WL 4215096, at *2 (N.D. Ill. Nov. 16, 2009) (explaining that the standards under Rule 60(b)(3) and Rule 59 are the same). “Merely pointing out an inconsistency in testimony-absent any proof that the trial testimony was actually false-is insufficient to warrant the ‘extraordinary remedy' of a new trial.” Othman, 2016 WL 612809, at *3. And a claim that the Court should infer Plaintiff was not credible about all subjects based on his subsequent testimony about different subjects is not the same as demonstrating by clear and convincing evidence that Plaintiff gave “false testimony” under oath before the jury.

         Second, Defendants do not explain how Plaintiff's inconsistent Phase II testimony precluded them from fully and fairly presenting their case before the jury. Plaintiff's “false testimony” from Phase II was generated after the Phase I jury trial, which means this future impeachment material did not exist at the time of jury trial. Defendants do not articulate how they were prevented at the time at the time of the Phase I trial from fairly presenting their Phase I case because, for example, Plaintiff had not yet testified inconsistently about whether he used his Aunt's or girlfriend's car to commute to work in Arizona. Defendants' presentation of their case before the jury could not have been impeded by their inability to introduce testimony from the future about largely collateral impeachment subjects. Defendants cite nothing to the contrary.[5]

         In fact, Defendants do not claim that Plaintiff's future false testimony inhibited their case at all (which is sufficient to fall short of satisfying Antevski). Instead, they argue that it was the Court's motion in limine rulings that did so, which they say had a “prejudicial impact” on their “ability to expose” Plaintiff's credibility issues. [316, at 9.] Of course, every evidentiary ruling that did not go Defendants' way may have caused some vague amount of “prejudice” in the sense that it limited their ability to admit certain evidence or make certain arguments. U.S. ex rel. Williams v. Lane, 644 F.Supp. 1449, 1456 (N.D. Ill. 1986) (“Of course every adverse evidentiary ruling leaves a party with one less fact to put before (and argue to) the jury.”). That does not mean that the ruling was wrong or led to an unfair trial. See, e.g., U.S. ex rel. Howse v. Carter, 1998 WL 422294, at *4 (N.D. Ill. July 22, 1998) (“A criminal defendant has a constitutional right to present evidence in his or her defense, but that does not make every exclusion of evidence potentially favorable to the defendant a constitutional violation.” (internal citation omitted)).

         Indeed, Defendants never explain how they think the Court erred in any of its in limine rulings, merely claiming that these decisions “unfairly stifled Defendants' ability to expose before the jury [Plaintiff's] propensity to lie and willingness to lie under oath.” [316, at 9.] For example, Plaintiffs complain that the Court “limited Defendants' inquiry into [Plaintiff's] criminal felony conviction to one question” and precluded use of his job applications to show his “propensity to lie.” Id. Plaintiff has two convictions-one of which was over ten years old and excluded under Federal Rule of Evidence 609(b) and the other was admitted under Federal Rule of Evidence 609(a), but sanitized pursuant to Schmude v. Tricam Industries, Inc., 556 F.3d 624 (7th Cir. 2009). [223, at 10.] The Court allowed Defendants “to elicit testimony that Plaintiff is a convicted felon, the date of the conviction, and the sentence imposed.” Id. Plaintiff's counsel asked those questions during Plaintiff's direct examination [Tr. Dec. 9, 2015, at 516-17], and then Defendants asked roughly fifteen questions about this same topic on cross [Tr. Dec. 10, 2015, at 866-868]. The Court also allowed Defendants to explore the fact that Plaintiff lied on his job applications, but precluded use of “extrinsic evidence * * * to attack the witness's character for truthfulness” pursuant to Federal Rule of Evidence 608(b). [See Tr. Dec. 7, 2015, at 110-112; 223, at 8 n.1] Defendants asked about ten questions on this subject. [See Tr. Dec. 10, 2015, at 794-95.] Defendants do not explain how Plaintiff's job applications themselves (i.e., extrinsic evidence) were admissible in this context or the Court abused its discretion in sanitizing Plaintiff's conviction. Asserting that the Court “limited” Defendants to “one question” reimagines the trial record. Defendants fail to show that any of the Court's evidentiary rulings were erroneous, “the[se] error[s] ha[d] a substantial and injurious effect or influence on the determination of a jury, and the result [was] inconsistent with substantial justice.” Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005) (internal citations omitted). Accordingly, no new jury trial is warranted based on Plaintiff's Phase II testimony.

         B. Plaintiff's Closing Argument

         Plaintiff's closing argument did not get off to the best start. In this sexual and racial harassment case, Plaintiff's attorney began his closing as follows:

[Plaintiff's Counsel]: About two weeks ago, we in our country suffered a tragedy in San Bernardino, California, linked to terrorism. Within the last few weeks in Paris, terrorists -
[Defendants' Counsel]: Objection, your Honor. This is beyond the scope this trial.
THE COURT: You have got 45 minutes, so I would cut to the chase, but I don't find anything objectionable at the moment.
[Plaintiff's Counsel]: Terrorists murdered innocent people laughing and eating their dinner at a restaurant and other places. In the Middle East terrorists have murdered tens of thousands of people creating chaos in countries not having the order of law. A country that does not have laws to protect the common good is a country that breeds anarchy. Merriam Webster's dictionary defines anarchy as “A situation of confusion and wild behavior in which the people in a country, group, organization, et cetera, are not controlled by rules or laws.” Anarchy fuels the terrorists need for control. It's all about power. Power to control others. In my research over the years, some social scientists have stated that sexual harassment --
[Defendants' Counsel]: Your Honor, he's talking about giving an opinion on social science research which ...

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