# Sheehan, Regina v. Donlen Corporation

> Court of Appeals for the Seventh Circuit · October 28, 1999

URL: https://www.frixlaw.com/law-library/cases/2994065

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** October 28, 1999
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Nature of suit:** civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2994065. Public record. Not legal advice.