Sheehan, Regina v. Donlen Corporation

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 98-1020 and 98-1095

REGINA SHEEHAN,

Plaintiff-Appellee, Cross-Appellant,

v.

DONLEN CORPORATION,

Defendant-Appellant, Cross-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 97 C 685--Morton Denlow, Magistrate Judge.

Argued September 24, 1998--Decided March 18, 1999

Before CUMMINGS, BAUER and DIANE P. WOOD, Circuit

Judges.

CUMMINGS, Circuit Judge. Regina Sheehan was five

months pregnant with her third child when she was

fired by her employer, Donlen Corporation

("Donlen"), leading to this lawsuit under the

Pregnancy Discrimination Act, 42 U.S.C.

sec.2000e(k). Donlen is a family-owned business

with about 100 employees that leases vehicles to

corporate clients. Sheehan was hired in July

1991. She had previously worked for some other

employers, but had not reported them all on her

resume or application to Donlen.

A year after she started, Sheehan became

pregnant with her first child. Donlen did not

then have an official maternity policy. Decisions

about retention after maternity leave were made

on a case-by-case basis. Zeno Wisniewski, her

then-supervisor in the Customer Service

Department, told her that he would not hold her

job open when she went on maternity leave, but

Donlen President Gary Rappeport countermanded

this decision, telling Sheehan she was a

"treasured employee." Sheehan’s 1992 performance

evaluation rated her overall as "meeting

requirements" or better, although she had had

some conflict with Steve Anderson, another

employee in the department. Wisniewski spoke to

her about this difficulty but nonetheless wrote

in her evaluation that Sheehan "sometimes comes

across a bit tough to deal with, but [this is]

merely perception rather than reality."

On her return in September 1992, Sheehan was

placed as an accounts manager in the Purchasing

Department, where her duties mainly involved

arranging the purchase of vehicles from dealers.

Sheehan’s supervisor, Eileen Kelm, rated Sheehan

as "meeting or above requirements" in her 1993

performance evaluation, in all areas except

"teamwork," with respect to which there were

personal conflicts with two other employees in

Purchasing who had complained to several managers

about Sheehan’s abrasiveness.

In spring 1993, about six months after taking

up the Purchasing assignment, Sheehan became

pregnant with a second child. A few months later,

she reported the pregnancy to Kelm and to Kelm’s

boss, Brad Miller. Kelm expressed concern about

how Sheehan’s work would be done while she was on

maternity leave, and Kelm indeed had to put in

extra time during Sheehan’s six-week leave in

January and February 1994. This leave was covered

by a newly instituted maternity policy at Donlen.

On her return, Sheehan remarked on the volume of

work and said, "Maybe I should go home and have

another baby." Kelm said to her, "If you have

another baby, I’ll invite you to stay home."

In the spring of 1994 Sheehan became pregnant

once more. She informed Kelm and the new

Purchasing Department head Bill Graham in June.

Kelm said, "Oh, my God, she’s pregnant again."

Sheehan went on disability leave for three weeks,

which was burdensome to Kelm. On Sheehan’s return

in July, Kelm shook her head at Sheehan and said,

"Gina, you’re not coming back after this baby."

That month Sheehan was also placed in a

"performance matrix," a management tool to

improve employee productivity by setting goals

and measuring performance. She was the only

employee in her department placed in this program

and was chosen because her job objectives were

easily measurable. Sheehan expressed some concern

to Kelm and to Graham that the goals had been set

entirely by Kelm, without her participation. Kelm

was upset that Sheehan had gone over her head to

Graham and told him so.

It is unclear precisely when the decision to

fire Sheehan was made. Donlen claims that a

decision was made in June by Graham, Kelm, and

Suzanne Gutowski, Donlen’s human resources

director, before any of them knew of her third

pregnancy. But Sheehan and Donlen agree that

those three people made a final determination in

August 1994, when they knew she was pregnant. The

firing was a mutual decision among these

managers. Graham put off the firing until fall

because he "needed her services during the busy

summer season," when many businesses need cars.

On September 13, 1994, Graham told Sheehan that

she was fired, saying, "Hopefully this will give

you some time to spend at home with your

children." Donlen claims that Graham told Sheehan

the decision had been made because Sheehan was

confrontational. The following day, however,

Graham told Sheehan’s co-workers in Purchasing

that she had been fired because "[w]e felt that

this would be a good time for Gina to spend some

time with her family." Graham had fired only one

other employee before then, Towanda Starling, who

was also pregnant. Donlen continued Sheehan’s

health insurance through the birth of the third

child. Sheehan remains at home with her three

small children, having found no other work.

After obtaining her right-to-sue letter from the

EEOC, Sheehan filed the employment discrimination

lawsuit we now consider, asking nearly $700,000

in damages. It was tried by consent before

Magistrate Judge Morton Denlow pursuant to Fed.

R. Civ. P. 73, exercising jurisdiction under 28

U.S.C. sec. 636(4)(c)(1). A jury found Donlen

liable for violation of the Pregnancy

Discrimination Act/1 and awarded her $30,000 in

back pay. The trial court entered judgment for

Sheehan in that amount, also giving her

$76,913.40 in attorneys’ fees ($4,350.40 for her

first attorney and $72,563.00 for the firm that

took over the case), and $10,000.00 in

miscellaneous costs and interest, for a total of

$116,913.40. At trial and after entry of the

judgment, Donlen moved for judgment as a matter

of law, Fed. R. Civ. P. 50, arguing that the

evidence was legally insufficient. Donlen also

challenged the trial court’s refusal to consider

Donlen’s after-acquired evidence defense. Donlen

appeals on these issues and on grounds of abuse

of discretion in awarding attorneys’ fees.

Sheehan cross-appeals the trial court’s ruling

that she failed to mitigate her damages and asks

us to enter judgment for her in the amount of

$98,000 for lost wages and benefits. We affirm

the judgment of the trial court.

I.

Donlen argues that the evidence presented at

trial was legally insufficient to support

judgment for Sheehan on liability for pregnancy

discrimination. Our standard of review for a

trial court’s denial of judgment as a matter of

law is de novo. Sokol Crystal Products, Inc. v.

DSC Communications Corp., 15 F.3d 1427, 1433 n.2

(7th Cir. 1994). To warrant judgment as a matter

of law because of legal insufficiency of

evidence, there must have been "no legally

sufficient evidentiary basis for a reasonable

jury to find for the non-moving party." Payne v.

Milwaukee County, 146 F.3d 430, 432 (7th Cir.

1998). Attacking a jury verdict is a hard row to

hoe. In assessing whether there was such a

reasonable basis after a trial on the merits,

this Court considers whether the totality of the

evidence supports a verdict of intentional

discrimination. Whether the plaintiff has made a

prima facie case drops away after trial.

Diettrich v. Northwest Airlines, Inc., No. 97-

2831, 1999 WL 69667, at *4 (7th Cir. Feb. 16,

1999). We will not disturb the jury verdict

unless Donlen can show that "no rational jury

could have brought in a verdict against [it]."

EEOC v. G-K-G, Inc., 39 F.3d 740, 745 (7th Cir.

1994). Our inquiry "is limited 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," Emmel v. Coca-Cola

Bottling Co. of Chicago, 95 F.3d 627, 629 (7th

Cir. 1996) (internal citations omitted)--here,

most favorable to Sheehan.

In this case, the jury was presented with two

radically different stories. According to Donlen,

Sheehan was a contentious, difficult, rude,

uncooperative, and argumentative employee,

someone who regularly drove other employees to

complain to management about her behavior and

even reduced another employee to tears, and those

are the reasons she was fired. Sheehan herself

maintains that she was an acknowledgedly capable

employee whose apparent roughness around the

edges was tolerable but whose pregnancies,

illegally, were not. The jury might rationally

have believed Donlen, but it did believe Sheehan.

There was a "reasonable basis in the record for

[that] verdict." Accordingly, "we will not

reweigh the evidence but will let the verdict

stand." Knox v. State of Indiana, 93 F.3d 1327,

1332 (7th Cir. 1996).

Evidence of discrimination may be direct or

circumstantial. Graham’s remarks to Sheehan and

to her co-workers at the time of the firing that

she would be happier at home with her children

provided direct evidence of discrimination,

"evidence which in and of itself suggests" that

someone with managerial authority was "animated

by an illegal employment criterion." Venters v.

City of Delphi, 123 F.3d 956, 972 (7th Cir.

1997). Even isolated comments may constitute

direct evidence of discrimination if they are

"’contemporaneous with the discharge or causally

related to the discharge decision making process.’"

Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140

F.3d 716, 723 (7th Cir. 1998) (internal citations

omitted). Direct evidence typically "relate[s] to

the motivation of the decisionmaker responsible

for the contested decision." Chiaramonte v.

Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th

Cir. 1997). Graham had managerial authority over

Sheehan. His comments were contemporaneous with

her firing. They related to his motivation for

the decision. A reasonable jury might have

accepted them as direct evidence of

discrimination.

Graham did not actually state in so many words

that Sheehan’s pregnancy was a reason for firing

her, but direct evidence of discrimination does

not require "a virtual admission of illegality."

Venters, 123 F.3d at 973. It would cripple

enforcement of the employment discrimination laws

to insist that direct evidence take the form of

an employer’s statement to the effect that "I’m

firing you because you’re in a protected group."

Evidence of discriminatory motives must, it is

true, have some relationship with the employment

decision in question. Inappropriate but isolated

comments that amount to no more than "stray

remarks" in the workplace will not do. Randle v.

LaSalle Telecommunications, Inc., 876 F.2d 563,

569 (7th Cir. 1989) (citing Price Waterhouse v.

Hopkins, 490 U.S. 228). However, "remarks and

other evidence that reflect a propensity by the

decisionmaker to evaluate employees based on

illegal criteria will suffice as direct evidence

of discrimination," even short of an admission of

illegal motivation. Id.; see also Miller v.

Borden, Inc., 1999 WL 55152, at *3 (7th Cir. Feb.

8, 1999); Robinson v. PPG Indus., Inc., 23 F.3d

1159, 1164-1165 & nn.2-3 (7th Cir. 1993); Shager

v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990).

Likewise, a remark need not explicitly refer to

the plaintiff’s protected status (here pregnancy)

for a reasonable jury to conclude that it is

direct evidence of illegal motivation based on

that status. Cf. Venters, 123 F.3d at 973 ("But

the evidence need not be this obvious to qualify

as direct evidence."). A reasonable jury might

conclude that a supervisor’s statement to a woman

known to be pregnant that she was being fired so

that she could "spend more time at home with her

children" reflected unlawful motivations because

it invoked widely understood stereotypes the

meaning of which is hard to mistake.

We note with respect to stereotypes that

pregnancy discrimination law is no different from

other sorts of anti-discrimination law, despite

Donlen’s assertion to the contrary. This Court

said long ago that in Title VII, "Congress

intended to strike at the entire spectrum of

disparate treatment of men and women resulting

from sex stereotypes." Sprogis v. United Air

Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)

(emphasis added). Discrimination on the basis of

pregnancy is part of discrimination against

women, and one of the stereotypes involved is

that women are less desirable employees because

they are liable to become pregnant. This was one

of Congress’ concerns in passing the Pregnancy

Discrimination Act. See Amending Title VII, Civil

Rights Act of 1964, S. Rep. No. 95-331, 95th

Cong., 1st Sess. at 3 (1977); Prohibition of Sex

Discrimination Based on Pregnancy, H.R. Rep. No.

95-948, 95th Cong., 2d Sess. at 3 (1978) ("As the

testimony received by this committee

demonstrates, the assumption that women will

become pregnant and leave the labor market is at

the core of the sex stereotyping resulting in

unfavorable disparate treatment of women in the

workplace.").

Finally, a reasonable jury would not be

required to accept a proffered innocent

construction of the remarks we are discussing,

even if it might rationally have done so. See,

e.g., EEOC v. Century Broadcasting Corp., 957

F.2d 1446, 1457 (7th Cir. 1992). In that case we

held that a supervisor’s statements, for example,

that a radio station wanted "new young sound"

would support a conclusion of age discrimination,

though the remarks might reasonably be subject to

an "innocent" interpretation. Id.

The circumstantial evidence in this case, like

that in Futrell v. J.L. Case, 38 F.3d 342 (7th

Cir. 1994) (age discrimination), though perhaps

insufficient taken piece by piece, "[in] sum

d[oes] permit a reasonable inference of

discrimination." Id. at 346. The circumstantial

evidence includes the comments of Sheehan’s

direct supervisor Eileen Kelm: "If you have

another baby, I’ll invite you to stay home"; "Oh,

my God, she’s pregnant again"; and, "Gina, you’re

not coming back after this baby." A rational jury

need not have accepted innocuous constructions of

these remarks offered by Donlen, for example,

that Kelm was joking. See Century Broadcasting,

957 F.2d at 1457. In view of Kelm’s frustration

at dealing with the volume of work during

Sheehan’s pregnancy leaves and Kelm’s generally

good evaluations of Sheehan’s work, it would have

been reasonable for a jury to infer that Kelm, a

decisionmaker in Sheehan’s termination, agreed

that Sheehan was to be fired not because of

personality conflicts or dissatisfaction with

Sheehan’s work, but because she burdened Kelm

with pregnancies and maternity leaves.

The circumstantial evidence also includes the

fact that the only other employee Graham had

fired was also a pregnant woman, Towanda

Starling. That Graham had not fired several women

who did become pregnant goes only to the weight

accorded this fact and does not show that the

jury was irrational to conclude that he did fire

Sheehan because she was pregnant.

Donlen’s version of the story is that Sheehan

was fired because she was a difficult employee

and not because she was pregnant. The problems

with this version are serious enough that a

rational jury might have disbelieved Donlen. "The

factfinder’s disbelief of the reasons put forward

by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may,

together with the elements of the prima facie

case, suffice to show intentional

discrimination." St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 511. See Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir.

1994) (reading Hicks as adopting a pretext-only

and not a pretext-plus rule). We have said in

regard to Hicks: "[I]mplicit in the [Supreme]

Court’s holding is the notion that once the

employee has cast doubt on the employer’s

proffered reasons for the termination, the issue

of whether the employer discriminated against the

plaintiff is to be determined by the jury--not

the court." Weisbrot v. Medical College of

Wisconsin, 79 F.3d 677, 681-682 (7th Cir. 1996).

A reasonable jury might have wondered, for

example, why Donlen placed Sheehan in the

performance matrix to evaluate and improve her

productivity in July 1994 if, as Donlen claims,

her supervisors had decided to fire her in June,

supposedly before they knew she was pregnant.

Likewise a rational jury might have found the

claim about the date of the decision hard to

square with human resources director Gutowski’s

testimony that the decision was made in

"approximately August." A rational jury might

have found it hard to credit Donlen’s proffered

reason for the decision, Sheehan’s purported

abrasiveness and confrontational character, in

view of Gutowski’s testimony, as to mitigation,

that plaintiff was qualified for and should have

applied for jobs requiring "strong interpersonal

customer relations skills," "positive attitude,"

"outgoing personality," and a "pleasant service-

oriented attitude." And a rational jury might

have been troubled by inconsistencies in Kelm’s

testimony as to whether there had been any

specific complaints about Sheehan’s demeanor or

in Graham’s testimony as to whether Sheehan had

been argumentative with him or with Kelm or

whether Kelm had indeed complained to him about

Sheehan. These questions might raise in the mind

of a rational jury the "suspicions of mendacity"

which, together with the prima facie case Sheehan

has certainly made, the Supreme Court has

indicated might themselves suffice to show

intentional discrimination. Hicks, 509 U.S. at

511.

Since a rational jury might well have credited

Sheehan’s version of the story over Donlen’s on

the grounds set forth above, we reject Donlen’s

claim that there can be no other explanation for

the verdict in Sheehan’s favor but jury sympathy.

That sort of argument is in any case disfavored.

It is a bad sign for a litigant when she feels

impelled to argue from "jury sympathy" in the

absence of specific, concrete, credible evidence.

Such an argument is often an indication of

desperation. Our system of civil justice differs

from the British and continental models, where

juries are not used in civil cases, in being

based on the idea that "the jury is well-equipped

to evaluate the evidence and use its good ’common

sense’ to come to a reasoned decision."

Richardson v. Richardson-Merrell, Inc., 857 F.2d

823, 833 (D.C. Cir. 1988). As Chief Justice

Thomas Cooley of Michigan remarked over a century

ago:

The jurors, and they alone, are to judge of the

facts, and weigh the evidence. The law has

established this tribunal, because it is believed

that, from its numbers, the mode of their

selection, and the fact that the jurors come from

all classes of society, they are better

calculated to judge of motives, weigh

probabilities, and take what may be called a

"common-sense view" of a set of circumstances,

involving both act and intent, than any single

man, however pure, wise, and eminent he may be.

People v. Garbutt, 17 Mich. 9, 27 (1868) (quoted

in United States ex rel. Toth v. Quarles, 350

U.S. 11, 18 n.10). Tocqueville observed in 1835

that the jury plays an essential role in a

democracy, legitimating outcomes and educating

the people in the law. See 1 Alexis de

Tocqueville, Democracy in America 334, 337

(Schocken ed., 1st ed. 1961) (quoted in Powers v.

Ohio, 499 U.S. 400, 407) (The jury is a body that

"invests the people . . . with the direction of

society. . . . [It is] one of the most

efficacious means for the education of the people

which society can employ."). For all these

reasons--the long-established role of and respect

for the jury in the American system of civil

justice, together with the sound basis in policy

upon which it is premised--there are high

barriers to defeating a jury verdict properly

rendered.

We decline to make an exception for employment

discrimination cases. We have said that there is

no basis for imposing "stricter scrutiny" of jury

verdicts in employment discrimination cases than

others because juries in such cases are

purportedly "especially sympathetic to plaintiffs

in those cases." G-K-G, 39 F.3d at 745. "The

suggestion that the scope of appellate review

should vary with the judge’s assessment of the

probable direction of jury bias has no basis in

established law, and if a party wants us to

innovate, it had better give us a [more] solid[

] foundation than suspicion." Id. In fact, we

have said that an appeals court must be

"particularly careful in employment

discrimination cases to avoid supplanting [its]

view of the credibility or the weight of the

evidence for that both of the jury (in its

verdict) and the judge (in not interfering with

the verdict.)." Emmel, 95 F.3d at 630 (internal

citations omitted). "It is the jury’s job to

weigh the evidence, not ours." Knox, 93 F.3d at

1337. We are not "some kind of superjury, from

whom losing parties can get a second bite at the

apple." Id. at 1336. Accordingly, we decline to

enter judgment as a matter of law in favor of the

defendant Donlen Corp. on grounds of legal

insufficiency of the evidence.

II.

Donlen also appeals the trial court’s ruling

that Donlen’s after-acquired evidence defense

failed as a matter of law. Under this defense,

after-acquired evidence of an employee’s

misconduct may limit damages. See McKennon v.

Nashville Banner Pub. Co., 513 U.S. 352, 361-362.

An employer may be found liable for employment

discrimination, but if the employer later--

typically in discovery--turns up evidence of

employee wrongdoing which would have led to the

employee’s discharge, then the employee’s right

to back pay is limited to the period before the

discovery of this after-acquired evidence. Id. at

361. Donlen argued that Sheehan had falsified her

job application by leaving several jobs off her

resume and not explaining that she had been fired

from one of them. Sheehan would have been fired

when the company became aware of these facts,

Donlen said, and so Donlen should not be liable

for backpay from the date of their discovery. We

review the determination of the trial court on

the after-acquired evidence issue de novo, Willis

v. Marion County Auditor’s Office, 118 F.3d 542,

545 (7th Cir. 1997), but we review the trial

court’s factual findings for clear error. Fed. R.

Civ. P. 52(a).

In deciding the motion against Donlen, the trial

court reasoned, first, that there was no

falsification. It found that the application and

the resume were separate documents and the

omissions were made only on the resume, no job

history at all being provided on the application;

and, moreover, that there was no evidence Sheehan

had been fired from those jobs. This factual

finding is not clearly erroneous, that is, it is

not one that leaves "’the reviewing court on the

entire evidence . . . with the definite and firm

conviction that a mistake has been committed,’"

whether or not the finding is one we would

necessarily have made ourselves. Anderson v. City

of Bessemer, N.C., 470 U.S. 564, 573 (internal

citations omitted). The record will sustain the

interpretation the trial court placed on the facts

surrounding the application and the resume.

The trial court reasoned, second, that there

was no causation, since it was not disputed that

no one in the history of Donlen had ever been

fired for falsification of a resume. If Donlen

cannot show by a preponderance of the evidence

that the after-acquired evidence would have led

to her termination, it has not made out the

defense. See McKennon, 513 U.S. at 362-363. As

the Ninth Circuit has said, "the inquiry focuses

on the employer’s actual employment practices,

not just the standards established in its

employee manuals, and reflects a recognition that

employers often say they will discharge employees

for certain misconduct while in practice they do

not." O’Day v. McDonnell-Douglas Helicopter

Corp., 79 F.3d 756, 759 (9th Cir. 1996). "Proving

that the same decision would have been justified

. . . is not the same as proving that the same

decision would have been made." Price Waterhouse,

490 U.S. at 252. In absence of further evidence

that the policy actually would have been applied,

Donlen’s adversion to its stated policy is

therefore insufficient to carry its burden of

persuasion on the after-acquired evidence

defense.

III.

Donlen appeals the trial court’s award of

$72,563.00 in attorneys’ fees to Sheehan’s law

firm. We review the award of attorneys’ fees for

abuse of discretion. Hennessy v. Penril Datacomm

Networks, Inc., 69 F.3d 1344, 1351 (7th Cir.

1995). A trial court is given "wide discretion"

in fashioning reasonable attorneys’ fees.

Alexander v. Gerhart Enterprises, Inc., 40 F.3d

187, 194 (7th Cir. 1994). Two requirements must

be met for the plaintiff to recover attorneys’

fees in a civil rights case. First, the plaintiff

must be the "prevailing party," which requires

that a plaintiff obtain at least some relief on

the merits, see Farrar v. Hobby, 506 U.S. 103,

109, a condition which is clearly met here by the

$30,000 jury verdict for Sheehan. Second, the

attorneys’ fees awarded must be reasonable. See

Alexander, 40 F.3d at 194. Donlen’s arguments

that Sheehan’s are not reasonable boil down to

the claims that her attorneys billed too many

hours at too high a rate given the simple nature

of her claim and that she recovered about a third

of what she now appeals for. In view of the great

scope of discretion for the trial court and "the

desirability of avoiding frequent appellate

review of what are essentially factual matters,"

Leffler v. Meer, 936 F.2d 981, 984-985 (7th Cir.

1991), Donlen’s argument that the trial judge

abused his discretion is unpersuasive.

Plaintiff’s attorneys did a thoroughly

professional and able job in a difficult sort of

case. We do not fault the quality of Donlen’s

representation. A case like this can go either

way. Nonetheless, a plaintiff risks the

likelihood, given the low success rate of

employment discrimination cases,/2 of bearing

her own attorneys’ fees and at least the

possibility of being stuck with the employer’s

attorneys’ fees. It is, therefore, rational, and

so reasonable, for a plaintiff to encourage her

attorneys to be thorough. The district judge’s

review of the factual circumstances, which

already involved some reduction of these fees,

supports our conclusion. We find no abuse of

discretion. Donlen’s argument that Sheehan’s

attorneys’ fees should be reduced because

Sheehan’s damages were much smaller than she

hoped is meritless. This court has repeatedly

rejected the notion that the fees must be

calculated proportionally to damages. Alexander,

40 F.3d at 194; Wallace v. Mulholland, 957 F.2d

333, 339 (7th Cir. 1992). The principle applies

equally to purported disproportionality between

the relief requested and that received.

IV.

Sheehan cross-appeals the trial court’s denial

of her motion for judgment as a matter of law on

Donlen’s affirmative defense that she failed to

mitigate her damages. Failure to mitigate is an

affirmative defense. The employer bears the

burden of persuasion, EEOC v. Gurnee Inn Corp.,

914 F.2d 815, 818 (7th Cir. 1990), and must show

that the plaintiff was not reasonably diligent in

seeking other employment and that there was a

reasonable chance that plaintiff might have found

a comparable position. Wheeler v. Snyder Buick,

794 F.2d 1228, 1234 (7th Cir. 1986). Sheehan

presented uncontroverted evidence that she

suffered $98,000 in damages, but she was awarded

only $30,000.

Once again we review the judgment de novo and

consider whether, on the totality of evidence, a

rational jury could have arrived at the

challenged verdict. See Emmel, 95 F.3d at 629.

Sheehan found no other employment in the three

years between her termination at Donlen and the

trial. She was an undisputedly qualified employee

with a long and hitherto substantially unbroken

work history. Evidence was given that comparable

jobs were available. A rational jury had a

legally sufficient basis to conclude that Sheehan

failed to mitigate her damages. It might

rationally have believed that she had done so,

but it apparently did reasonably believe that she

had not.

Affirmed.

FOOTNOTES

/1 The key relevant provision of the Act states:

"[W]omen affected by pregnancy, childbirth, or

related medical conditions shall be treated the

same for all employment-related purposes . . . as

other persons not so affected but similar in

their ability or inability to work . . . . " 42

U.S.C. sec. 2000e(k).

/2 "[T]he success rate for employment discrimination

plaintiffs nationwide was only twenty-two percent

. . . [a] percentage [that] has remained

relatively constant into the 1990s. . . . [I]n

most tort-type cases, [by contrast], plaintiffs

tend to approximate a success rate . . . of

[about] fifty percent." Michael Selmi, The Value

of the EEOC: Reexamining the Agency’s Role in

Employment Discrimination Law, 57 Ohio St. L.J.

1, 41 (1996).