David, Lori v. Caterpillar Inc

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-1354

LORI DAVID,

Plaintiff-Appellee,

v.

CATERPILLAR, INCORPORATED,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 98 C 1250—Michael M. Mihm, Judge.

____________

ARGUED SEPTEMBER 20, 2002—DECIDED MARCH 17, 2003

____________

Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. Lori David filed this action

against Caterpillar, Inc. (“Caterpillar”); she claimed that

Caterpillar had violated Title VII by discriminating and/

or retaliating against her when it denied her promotions

to five different positions while she was employed in its

security department. A jury returned a verdict for Cater-

pillar on four of Ms. David’s claims, but found that Cater-

pillar had retaliated against Ms. David by selecting an-

other candidate, Joni Lusher, to fill a sergeant position.

The jury awarded Ms. David $100,000 in compensatory

damages and $750,000 in punitive damages. Following the

2 No. 02-1354

verdict, Caterpillar renewed its motion for judgment as a

matter of law or, alternatively, for a new trial. The district

court granted Caterpillar’s motion in part with respect to

the damages award and denied the motion in all other

respects. The district court reduced the compensatory

award to $50,000 and the punitive award to $150,000. The

district court also awarded Ms. David $35,606.71 in back

pay and $20,697.81 in prejudgment interest. Caterpillar

appeals both the liability and damages determinations.

For the reasons set forth in the following opinion, we

affirm the judgment of the district court.

I

BACKGROUND

A. Facts

Caterpillar hired Ms. David on March 6, 1989, as a fire

and security officer at its East Peoria, Illinois facility. Ms.

David continued to work in the security department until

June 1996, when she transferred to Caterpillar’s market-

ing department. As of 1994, no woman had ever been

promoted in Caterpillar’s security department. Ms. David

repeatedly had expressed interest to her supervisor, Ser-

geant Gary Shilling, in being promoted to the rank of

sergeant. Sergeant Shilling responded by telling Ms. David

that no woman would ever be promoted in the department.

It was the sergeants’ duty to evaluate officers and to

make recommendations to the captains for promotions.

In turn, the captains would recommend certain candi-

dates to Tom Ruxlow, the corporate security manager, and

to Larry Beckner, the assistant security manager. Although

the captains played a significant role in the selection

process, Ruxlow and Beckner made the final decisions

No. 02-1354 3

with respect to promotions. It is undisputed that Sergeant

Shilling did not recommend Ms. David for promotion

despite her excellent performance reviews.

On October 19, 1994, Ms. David and Kenny Hendrick,

her union steward, met with Ray Richardson, captain of

security at the East Peoria facility. Ms. David complained

to Captain Richardson about only males being promoted

in the security department. Captain Richardson told her

that, in order to be promoted, she needed to have a four-

year college degree; Ms. David responded that men who

did not have degrees were being promoted. At this point,

Richardson hit his desk and stated: “If it’s a lawsuit you

want, I don’t want no part of it.” R.120 at 371.

In November 1994, Ms. David filed charges with the

EEOC. She alleged that she had been denied promotions

due to sex discrimination. Both Captain Richardson and

Sergeant Shilling were informed of Ms. David’s charges.

After Ms. David complained internally about discrimina-

tion and filed her EEOC charges, Richardson and Shilling

began to treat Ms. David differently. Ms. David testified

that they would go out of their way to avoid speaking to

her and, when they did speak, that the encounters were

“angry” in tone. Id. at 379. Additionally, Ms. David testified

that Richardson and Shilling attempted to deny her an

educational leave of absence and avoided completing

paperwork that would have allowed her the opportunity

to apply for a promotional opportunity outside of the

security department.

In June of 1995, a sergeant position became available

in the East Peoria security department. The position was

not posted. In a meeting with all the captains and Beckner,

Captain Richardson recommended that Joni Lusher, a

woman, be promoted. Caterpillar had hired Lusher in

September 1991. Lusher had not requested or shown any

4 No. 02-1354

interest in being promoted until Tony Kegley, her sergeant,

and Captain Richardson approached her and specifically

asked her if she was interested in a promotion. Ms. David

was not asked if she was interested in the promotion,

nor was she recommended for the position. Upon her

promotion, effective July 3, 1995, Lusher was the first

woman promoted in the security department. Ms. David

believed that she was denied the promotion given to

Lusher because Ms. David had made a complaint of sex

discrimination.

Shortly after Lusher’s promotion, Ron Dieckow, an-

other security officer, spoke with Larry Mitzelfelt, the

captain of security for the Mossville facility. Mitzelfelt

learned of Lusher’s promotion in a captains’ meeting

in which Beckner and Richardson were present. According

to Dieckow, he asked Mitzelfelt why Lusher received

the promotion, and Mitzelfelt replied that “he had been

told by upper management that the next promotion in

the department would have to be a woman in response to

a lawsuit that was recently filed in East Peoria by an-

other female security officer.” Id. at 266. In a later conversa-

tion, Mitzelfelt told Dieckow “that they had looked at

every female employee in [the] department as a can-

didate for sergeant” and “even considered his secretary,

Sandy Daniels, as a possible candidate for a sergeant’s job.”

Id. at 267.

B. District Court Proceedings

A jury found that Caterpillar had selected Lusher in

retaliation against Ms. David, and awarded Ms. David

$100,000 in compensatory damages and $750,000 in puni-

tive damages. Following the jury’s verdict, Caterpillar

made a renewed motion for a directed verdict or, alter-

No. 02-1354 5

natively, for a new trial. The district court granted Caterpil-

lar’s motion, in part, by reducing the compensatory award

to $50,000 and the punitive award to $150,000. However,

the district court denied Caterpillar’s motion in all other

respects.

First, the district court concluded that the exclusion

of Dieckow’s testimony was not required under Rule 37

of the Federal Rules of Civil Procedure as a sanction for

Ms. David’s failure to timely disclose the substance of

Dieckow’s testimony. Specifically, the district court de-

termined that Caterpillar was not prejudiced by any dis-

covery violation because it had introduced evidence that

directly rebutted Dieckow’s testimony when it called

Mitzelfelt to testify that he had no such conversation with

Dieckow. The district court also noted that there was

no showing that Ms. David’s counsel had acted in bad

faith. Second, the district court concluded that, even as-

suming that the admission of Dieckow’s testimony was

improper, Caterpillar would not be entitled to judgment

as a matter of law because the jury’s verdict was sup-

ported by legally sufficient evidence. In particular, the

district court pointed to (1) substantial testimony concern-

ing the respective qualifications and experience of both

Ms. David and Lusher; (2) Ms. David’s testimony that

she was treated differently by her superiors after com-

plaining about discrimination; and (3) Rebecca Smith’s

testimony that she had been discharged from the security

department after complaining about sexual harassment.

The district court also awarded Ms. David back pay from

July 3, 1995, the date the jury found that she should

have been promoted to security sergeant, through the

end of May 1996, when she transferred to Caterpillar’s

marketing department, in the amount of $35,426.71, which

represents the difference between what Ms. David earned

6 No. 02-1354

during this period and what was earned by Lusher, the

person who received the promotion.

II

DISCUSSION

A. Discovery Violation

Caterpillar asserts that the district court erred in per-

mitting Dieckow to testify at trial because Ms. David

had failed to supplement her Rule 26(a)(1) disclosures to

identify Dieckow as having evidence supportive of her

claims. Caterpillar claims that Ms. David’s violation of

Rule 26 was severely prejudicial.

Rule 26 of the Federal Rules of Civil Procedure requires

a party to provide other parties with “the name and, if

known, the address and telephone number of each indi-

vidual likely to have discoverable information that the

disclosing party may use to support its claims or de-

fenses . . . , identifying the subjects of the information.” Fed.

R. Civ. P. 26(a)(1)(A). Rule 26 also requires a party to

supplement or amend its disclosures and discovery re-

sponses if it learns that the information disclosed or

the response is “incomplete or incorrect and if the addi-

tional corrective information has not otherwise been

made known to the other parties during the discovery

process or in writing.” Fed. R. Civ. P. 26(e)(1). To ensure

compliance with these discovery requirements, Rule 37

provides that “[a] party that without substantial justifica-

tion fails to disclose information required by Rule 26(a)

or 26(e)(1) . . . is not, unless such failure is harmless, per-

mitted to use as evidence at a trial . . . any witness or

information not so disclosed.” Fed. R. Civ. P. 37(c)(1).

This court has stated that “the sanction of exclusion is

automatic and mandatory unless the sanctioned party can

No. 02-1354 7

show that its violation of Rule 26(a) was either justified or

harmless.” Salgado v. Gen. Motors Corp., 150 F.3d 735, 742

(7th Cir. 1998). However, we also have stated that “[t]he

determination of whether a Rule 26(a) violation is jus-

tified or harmless is entrusted to the broad discretion of

the district court.” Mid-America Tablewares, Inc. v. Mogi

Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996); see

also Salgado, 150 F.3d at 739 (stating that a district court’s

ruling on a motion to exclude testimony for noncompli-

ance with Rule 26(a) is reviewed for an abuse of discre-

tion and “[u]nder this standard, we shall affirm the judg-

ment of the district court whenever we believe that the

district court chose an option that was among those

from which we might expect a district court reasonably

to choose”). “A district court need not make explicit find-

ings concerning the existence of a substantial justification

or the harmlessness of a failure to disclose.” Woodworker’s

Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993

(10th Cir. 1999). However, we have indicated that the

following factors should guide the district court’s discre-

tion: (1) the prejudice or surprise to the party against

whom the evidence is offered; (2) the ability of the party

to cure the prejudice; (3) the likelihood of disruption to

the trial; and (4) the bad faith or willfulness involved in

not disclosing the evidence at an earlier date. See Bronk

v. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995) (citing Spray-

Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1245

(7th Cir. 1982)); see also Woodworker’s Supply, Inc., 170 F.3d

at 993.

Caterpillar submits that the district court abused its

discretion in permitting Dieckow to testify that, when he

asked Mitzelfelt why Lusher was promoted to sergeant,

Mitzelfelt told him that “he had been told by upper man-

agement that the next promotion in the department would

have to be a female in response to a lawsuit that was

recently filed in East Peoria by another female security

8 No. 02-1354

officer,” and that “they had looked at every female em-

ployee in [the] department as a candidate for sergeant,”

including his secretary. R.120 at 266-67. In support of its

position, Caterpillar asserts that Ms. David’s counsel

learned of Dieckow’s conversations with Mitzelfelt in

August 1999; that Ms. David did not supplement her

Rule 26(a)(1) disclosures to identify Dieckow and Mitzel-

felt’s alleged remarks; that Ms. David did not supplement

her answer to Caterpillar’s interrogatories requesting the

identity of persons with knowledge relating to her claims

and the facts known by them; and that Caterpillar learned

of Mitzelfelt’s alleged statements only days before trial.

In ruling on Caterpillar’s renewed motion for a judg-

ment as a matter of law, the district court determined that

the exclusion of Dieckow’s testimony was not required

under Rule 37. The district court noted that Dieckow was

listed as a potential witness nearly a year and one-half

before trial; that Caterpillar did not seek a continuance

so that it could obtain additional information to rebut

Dieckow’s testimony; and that Caterpillar introduced

evidence that directly rebutted Dieckow’s testimony when

it called Mitzelfelt to testify that he had no such conversa-

tion with Dieckow. In light of these facts, the district court

determined that Caterpillar was not prejudiced by Ms.

David’s potential discovery violation. The district court

also noted that there was no showing that Ms. David’s

counsel had acted in bad faith.

Given the district court’s thoughtful discussion of this

issue, we cannot say that it abused its discretion in per-

mitting Dieckow to testify at trial. Caterpillar knew

Dieckow was a potential witness for eighteen months;

it interviewed Dieckow and learned the subject of his

testimony prior to trial; it did not seek a continuance; and

it was able to rebut directly Dieckow’s testimony at trial.

No. 02-1354 9

Caterpillar called Mitzelfelt, and he squarely denied mak-

ing any such statements. Because Mitzelfelt was the only

other person privy to the conversation in question, the

district court reasonably could have determined that

Caterpillar was not prejudiced by Ms. David’s failure to

disclose in a timely manner the subject of Dieckow’s

testimony.

B. Sufficiency of the Evidence

Caterpillar submits that there is insufficient evidence

to support the jury’s verdict that Caterpillar retaliated

against Ms. David when it selected Lusher for promotion

over Ms. David. We disagree. Although the evidence can-

not be characterized as overwhelming, it is legally suffi-

cient to support the jury’s verdict of retaliation.

Title VII makes it unlawful for an employer to discrimi-

nate against an employee for opposing a practice made

unlawful under the Act. See 42 U.S.C. § 2000e-3(a). To

prove a case of retaliation, the plaintiff must prove three

elements by a preponderance of the evidence: (1) that she

opposed an unlawful employment practice; (2) that she

suffered an adverse employment action; and (3) that the

adverse employment action was caused by her opposition

to the unlawful employment practice. See Cullom v. Brown,

209 F.3d 1035, 1040 (7th Cir. 2000). In this case, only the

third element is in dispute.

An employee can establish her employer’s intent to

retaliate either directly or indirectly. In the context of this

case, the only issue post-trial is whether Ms. David has

met her burden of providing sufficient evidence that Cater-

pillar’s stated reasons for promoting Lusher over Ms. David

were pretextual and that the real reason for Caterpillar’s

decision was to retaliate against Ms. David for filing

10 No. 02-1354

EEOC charges. See Hall v. Gary Cmty. Sch. Corp., 298 F.3d

672, 675 (7th Cir. 2002). To satisfy this burden Ms. David

needed to offer evidence showing that the reasons given

by Caterpillar “were not worthy of credence or other evi-

dence showing retaliation.” Id.

We review a post-trial motion for judgment as a matter

of law de novo, but view the evidence in the light

most favorable to the nonmoving party and draw all

reasonable inferences in her favor. See Riemer v. Illinois

Dept. of Transp., 148 F.3d 800, 805 (7th Cir. 1998). We shall

not second-guess the jury’s view of the contested evi-

dence; the proper inquiry is whether, given the totality of

the evidence, Ms. David presented sufficient evidence

from which a reasonable jury could find in her favor. See

Hall, 298 F.3d at 675. Because credibility determinations

are often crucial in retaliation suits, we are particularly

careful in such cases “to avoid supplanting our view of

the credibility or weight of the evidence for that of both

the jury (in its verdict) and in the judge (in not interfer-

ing with the verdict).” Emmel v. Coca-Cola Bottling Co. of

Chi., 95 F.3d 627, 630 (7th Cir. 1996) (quoting Hybert v. Hearst

Corp., 900 F.2d 1050, 1054 (7th Cir. 1990)).

Caterpillar offered evidence at trial that it had selected

Lusher for promotion to sergeant over Ms. David because

Lusher was more qualified. Ms. David argued that this

explanation was pretextual and that Caterpillar had se-

lected Lusher rather than her in retaliation for Ms.

David’s having filed charges of discrimination with the

EEOC. Upon examination of the record, we must con-

clude that the following evidence, taken together, is suf-

ficient to support the jury’s verdict in favor of Ms. David:

(1) Ron Dieckow’s testimony relating to his conversations

with Larry Mitzelfelt; (2) Ms. David’s testimony that her

superiors were hostile toward her after she complained of

No. 02-1354 11

discrimination; and (3) Ms. David’s and Lusher’s com-

parative qualifications in combination with Caterpillar’s

1

shifting explanations for its decision.

Although Caterpillar urges us to ignore Dieckow’s

testimony, we already have determined that the district

court did not abuse its discretion in permitting Dieckow

to testify and, therefore, it was proper for the jury to

consider this evidence in reaching its verdict. Dieckow

testified that, shortly after Lusher’s promotion, he had

pointed out to Captain Mitzelfelt that Lusher had only

four years of service with the company and asked why

she had received the promotion. Mitzelfelt replied that “he

had been told by upper management that the next promo-

tion in the department would have to be a female in re-

sponse to a lawsuit that was recently filed in East Peoria

by another female security officer.” R.120 at 266. Dieckow

further testified that he had another conversation with

Mitzelfelt a few days later. Mitzelfelt then told him that

management “had looked at every female employee in [the]

department as a candidate for sergeant” and “even con-

sidered his secretary, Sandy Daniels, as a possible can-

didate for a sergeant’s job.” Id. at 267.

According to Dieckow’s testimony, Mitzelfelt did not

mention Ms. David by name. However, because Ms. David

was the only female security officer in East Peoria who had

filed a lawsuit against Caterpillar at that time, the jury

1

The district court also referred to Rebecca Smith’s testi-

mony that she believed that she had been discharged from the

security department in retaliation for complaining about sex-

ual harassment. We need not determine whether this evi-

dence should have been admitted, a point of dispute between

the parties. The evidence noted in the text is sufficient to sus-

tain the jury’s verdict.

12 No. 02-1354

readily could have inferred that the statement referred

to Ms. David. Additionally, although Mitzelfelt told

Dieckow that management considered every woman in

the security department, including his secretary, as a

potential candidate for the position, Ms. David testified

that she had not been considered for the promotion. Ms.

David testified that she had requested a promotion on

numerous occasions and yet, when the sergeant position

became available, she was not approached about the

promotion. In contrast, Lusher had expressed no interest

in obtaining a promotion and yet, Captain Richardson,

along with Lusher’s immediate supervisor, Sergeant Kegley,

solicited her candidacy for the position. See R.121 at 641.

Read in conjunction with Ms. David’s testimony that

she was not considered for the position, even though she

repeatedly had expressed interest in being promoted, we

believe that Dieckow’s testimony provides some evi-

dence from which the jury could have drawn an infer-

ence of retaliation. The jury was entitled to conclude that

Dieckow’s testimony shows that Caterpillar was con-

vinced of the need to promote a woman in response to

Ms. David’s allegations of sex discrimination; from this

testimony and supporting evidence, the jury could have

inferred that Caterpillar was equally convinced that the

first woman to be promoted in the security department

2

would not be Ms. David.

2

We note that Caterpillar has not contested the import of

Dieckow’s testimony. Although Caterpillar devotes much of its

brief to persuading us why this evidence should have been

excluded under Rule 37, it devotes none of its brief to challeng-

ing the significance of this evidence. Indeed, Caterpillar sub-

mits that “absent Dieckow’s testimony, there is insufficient

evidence to support the jury’s verdict.” Appellant’s Br. at 25.

No. 02-1354 13

Caterpillar next asserts that Ms. David’s testimony that

she was treated differently by her supervisors after com-

plaining about what she perceived to be the differential

treatment of males in the promotion process is insuf-

ficient to establish that Lusher’s promotion was moti-

vated by retaliation. Caterpillar submits that Ms. David’s

statements were vague and did not relate to the employ-

ment decision that Ms. David is challenging—the Lusher

promotion. We cannot accept this argument.

Ms. David testified that, after she complained internally

about discrimination and filed charges with the EEOC,

Sergeant Shilling and Captain Richardson became hostile

toward her. Ms. David testified: “I was totally ignored. The

only time I was spoken to is if they had a need to speak

to me. If I said ‘hello’ to them, they would not answer.

They dropped their eyes when they walked by, turned

the other way. It was evident [that] they were upset.” R.120

at 379. Ms. David further testified that Schilling and Rich-

ardson “ostracized” her and that when they “actually had

to talk” to her, they would turn the encounter into “an

angry situation.” Id. at 379. For example, Ms. David testified

that, immediately after she complained to Richardson

about discrimination in awarding promotions, he re-

sponded by pounding on the table and shouting: “If it’s

a lawsuit you want, I don’t want no part of it.” Id. at 371.

Additionally, Ms. David testified that, after she filed a

charge of discrimination, she learned of a promotional

opportunity outside of the security department, that

she approached Schilling and Richardson about the op-

portunity and that they deliberately avoided completing

the necessary paperwork. See id. at 380-81. Similarly, Ms.

David testified that Shilling denied her time off for illness

and that he only approved her vacation leave after she

emphasized that another security officer had received,

14 No. 02-1354

without any objection from management, 32 consecutive

days of vacation leave. See id. at 381-82.

Ms. David also testified that Shilling and Richardson

attempted to deny her an educational leave of absence.

Ms. David testified that she wanted the leave because

Richardson had told her that she needed a college degree

if she expected to advance in the security department

and that she believed she could accelerate the process

by taking two classes during a month in the summer.

Because the plant would be shut down for two of the

four weeks, Ms. David thought this was a “prime opportu-

nity.” Id. at 389. However, Ms. David testified that, when

she approached Shilling with this request, he told her

“No. . . . Worry about work. Don’t worry about school.”

Id. at 389. After receiving this negative response from

Shilling, Ms. David approached Richardson about the

leave, only to be asked “what did Gary [Shilling] say?” and

then to be told “I have to agree with him.” Id. at 390.

If believed, the jury reasonably could have determined

that such testimony, in combination with other evidence,

supported a finding of retaliatory intent. It was the pre-

rogative of the jury to determine the weight to give

such testimony in the course of its deliberations.

To the extent that Caterpillar argues that Shilling’s and

Richardson’s treatment of Ms. David following her com-

plaint of discrimination is irrelevant because they were

not the “decisionmakers” who promoted Lusher over Ms.

David, we cannot accept such a submission. Although

statements by a nondecisionmaker ordinarily do not

satisfy a plaintiff’s burden of proof in an employment

retaliation case, this court has recognized that “if a man-

ager with a retaliatory motive is involved in the [employ-

ment] decision . . . , that retaliatory motive, in some cir-

cumstances, may be imputed to the company, even if the

No. 02-1354 15

manager with a retaliatory motive was not the ultimate

decisionmaker.” Paluck v. Gooding Rubber Co., 221 F.3d 1003,

1010 (7th Cir. 2000). Specifically, we have stated that the

retaliatory motive of a “nondecisionmaker” may be im-

puted to the company where the “nondecisionmaker”

influenced the employment decision by concealing rele-

vant information from, or feeding false information to,

the ultimate decisionmaker. See Wallace v. SMC Pneumatics,

Inc., 103 F.3d 1394, 1400 (7th Cir. 1997). “In such a case,

the [retaliatory] motive of the other employee, not the

autonomous judgment of the nondiscriminating deci-

sion-maker, is the real cause of the adverse employment

action.” Id.

In this case, Ms. David testified, and the jury was en-

titled to believe, that both Shilling and Richardson played

a significant role in Caterpillar’s decision to promote

Lusher over Ms. David. Ms. David asserted that it was the

sergeants’ duty to evaluate security officers and make

recommendations to the captains for promotions. Ms.

David’s testimony on this point was supported by other

evidence, including Caterpillar’s written job description

for security sergeants, which provided: “Security sergeants

direct and train a staff of security officers and provide

recommendations to the security captain regarding merit

increases [and] promotions.” R.119 at 84. It is undisputed

that Shilling was Ms. David’s sergeant and that he did

not recommend her for promotion, even though she con-

sistently had excellent performance evaluations. In addi-

tion, Richardson was the individual who approached Lush-

er about the promotion and recommended to Beckner that

Lusher be given the position. Beckner, who had virtually

no personal contact with Ms. David, testified that, when

it came to promotional decisions, he would have re-

ceived the necessary information about Ms. David from

Richardson. See R.122 at 683-84 (Q: “My point is when

16 No. 02-1354

it came to the promotional issue, the person that you

would have received the information about Lori David

from would have been Ray Richardson? A: That’s correct.”).

Under these circumstances, the fact that Shilling and

Richardson may not have had the final say regarding

Lusher’s promotion does not render Ms. David’s testi-

mony completely irrelevant. Given Caterpillar’s system for

awarding promotions, we believe that Shilling’s and Rich-

ardson’s actions were tantamount to concealing rele-

vant information from, or feeding false information to,

the ultimate decisionmaker. Thus, the jury properly could

have considered this evidence in finding that Caterpillar

retaliated against Ms. David when it selected Lusher for

promotion.

Finally, Caterpillar submits that the comparative qual-

ifications of Ms. David and Lusher do not support an

inference of retaliation because Ms. David’s credentials

were not so far superior that no reasonable employer

could have concluded that Lusher was the better person

for the job. In support of this argument, Caterpillar relies

on Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002),

cert. denied, 123 S. Ct. 117 (2002) (No. 02-120).

In Millbrook, we held that, when an employer asserts that

it chose another applicant over the plaintiff because the

selected candidate was more qualified, “evidence of the

applicants’ competing qualifications does not constitute

evidence of pretext unless those differences are so favor-

able to the plaintiff that there can be no dispute among

reasonable persons of impartial judgment that the plain-

tiff was clearly better qualified for the position at issue.”

Id. at 1180 (internal quotations omitted). Applying this

standard to the facts of this case, we agree that a compar-

ison of Ms. David’s and Lusher’s relative qualifications,

standing alone, would be insufficient to support the jury’s

verdict.

No. 02-1354 17

At the time of Lusher’s promotion, Ms. David had worked

as a Caterpillar fire and security officer for six years,

while Lusher had worked in the same position for almost

four years. Ms. David had a two-year associate degree in

law enforcement and was working toward a four-year

college degree; in contrast, Lusher had no formal educa-

tion beyond high school. Ms. David also had substantial

police-related training; Lusher had no comparable training.

Lusher, however, had significantly more fire and emer-

gency training than Ms. David. Based on a comparison

of these qualifications, Ms. David may well have been

more qualified than Lusher, but we cannot conclude that

the differences between the two candidates “are so favor-

able” to Ms. David “that there can be no dispute among

reasonable persons of impartial judgment that [she] was

clearly better qualified” for the sergeant position. Id.

However, Ms. David’s qualifications are not wholly

irrelevant. Nothing in Millbrook forecloses a comparison

of qualifications in a case, such as this, where the employ-

er offers conflicting explanations for its employment de-

cision. See Millbrook, 280 F.3d at 1183 (“While Millbrook

believes the jury should be allowed to review the candi-

dates’ relative qualifications to decide whether or not IBP

lied, without any evidence calling into question IBP’s

veracity,” such an analysis is not permitted.). At trial,

Caterpillar gave conflicting reasons for why Ms. David was

not promoted; both Shilling and Richardson, and to a

lesser extent Beckner and Ruxlow, were impeached on

numerous occasions with prior inconsistent testimony,

and their explanations were not supported by other evi-

3

dence in the record. Under these circumstances, we be-

3

For example, Shilling testified that, even though he con-

sidered Ms. David to be one of his best employees and could

(continued...)

18 No. 02-1354

3

(...continued)

think of no reason why she should not have been promoted,

he never had recommended her for promotion. See R.119 at 88.

Shilling’s explanation for not recommending Ms. David was

that she did not ask to be promoted in the security department.

See id. This assertion contradicted Ms. David’s testimony that

she repeatedly had told Shilling she wanted to be promoted to

the rank of sergeant and that Shilling responded by telling

her that no woman would ever be promoted in the department.

Additionally, Shilling knew that Ms. David’s EEOC charge

protested her lack of promotion in the security department.

Moreover, Shilling admitted that he had recommended a

different security officer for promotion despite the fact that

the officer never asked to be promoted. See id. at 86, 88.

Similarly, Richardson testified that in October 1994, Ms. David

complained to him about only males being promoted in the

security department and that he advised her to complete

her four-year college degree. See R.120 at 215. However, Richard-

son admitted that Lusher did not have a degree when she was

promoted to sergeant, nor did Emerson Hahn, Randy Warner or

Ken Elliott when they were promoted. See id. at 215-16. Addi-

tionally, Richardson testified that one of the reasons he did

not recommend Ms. David for promotion was that he did

not know she was interested in obtaining a promotion in the

security department. See id. at 210. This testimony, however,

squarely contradicted Richardson’s testimony regarding Ms.

David’s complaints of sex discrimination in October 1994, as

well as Richardson’s knowledge of Ms. David’s EEOC charge.

See id. at 211-12. Moreover, Richardson admitted that he rec-

ommended that Lusher be promoted to sergeant, even though

she had not previously requested such a promotion. Finally,

Richardson testified that the other reason he did not recom-

mend Ms. David for promotion was that he felt she needed to

work on her interpersonal skills and her relationship with co-

workers. See id. at 218. Richardson was impeached numerous

times on this issue. When asked at trial whether he per-

(continued...)

No. 02-1354 19

lieve that the jury reasonably could have doubted Cater-

pillar’s assertion that it honestly believed Lusher to be

the better candidate.

Furthermore, in Millbrook, we addressed the relatively

narrow issue of the circumstances under which evidence

of comparative qualifications, standing alone, is sufficient

to support a jury verdict of discrimination. In this case,

Ms. David offered additional evidence of retaliation, in-

cluding Dieckow’s testimony and evidence regarding

hostility toward Ms. David after she complained of dis-

crimination. The Millbrook standard is controlling in cases

in which the plaintiff relies exclusively on evidence of

the applicants’ comparative qualifications; however, it is

not controlling where the plaintiff offers other evidence

of retaliation in addition to the differences in relative

4

qualifications. We recognized as much in Millbrook. Ac-

3

(...continued)

sonally observed any specific instance in which Ms. David

failed to get along with her co-workers, Richardson stated:

“I would have to say that I did.” Id. at 212. However, when

asked the same question in his deposition, Richardson an-

swered “no.” Id. at 213. Similarly, when asked whether he

could recall an instance in which someone else reported to

him that Ms. David did not get along with her co-workers,

Richardson responded: “There was an instance.” Id. However,

when asked the same question during his deposition, Richard-

son stated “no.” Id. at 214. Thereafter, Richardson admitted

at trial that he could not identify a specific instance in which

Ms. David failed to demonstrate “good people skills.” Id.

Richardson also admitted that Ms. David consistently had

excellent written reviews. See id. at 204-05.

4

Relying on Emmel v. Coca-Cola Bottling Co. of Chicago, 95

F.3d 627 (7th Cir. 1996), and Bell v. Environmental Protection

(continued...)

20 No. 02-1354

cordingly, the jury properly could have weighed Ms.

David’s qualifications against those of Lusher in reaching

its verdict.

In summary, we believe that when the evidence is

viewed in its totality, Ms. David provided sufficient evi-

dence from which a rational jury could have concluded

that retaliation was a determining factor in Caterpillar’s

decision to promote Lusher over Ms. David.

C. New Trial

Caterpillar submits that, if it is not entitled to judgment

as a matter of law, then a new trial should be granted

so that Caterpillar has a fair opportunity to prepare a full

defense to Dieckow’s testimony and to eliminate any

prejudice caused by the admission of Rebecca Smith’s

testimony. “The decision whether to grant a new trial

is committed to the discretion of the district court, and

we therefore will not disturb that decision except under

exceptional circumstances showing a clear abuse of dis-

cretion.” Crossley v. Gen. Motors Corp., 33 F.3d 818, 821 (7th

Cir. 1994) (internal quotations omitted).

4

(...continued)

Agency, 232 F.3d 546 (7th Cir. 2000), the plaintiff in Millbrook

argued that, when an employer asserts that it had selected the

most qualified candidate, “the jury may return a verdict of

discrimination if, after reviewing the applicants’ relative qual-

ifications, it simply does not believe the employer’s assertion.”

Millbrook v. IBP, Inc., 280 F.3d 1169, 1177-78 (7th Cir. 2002).

In rejecting the plaintiff’s argument, we distinguished Emmel

and Bell on the basis that in those cases “the plaintiffs pre-

sented evidence of discrimination beyond the relative qualifica-

tions of the candidates.” Id.

No. 02-1354 21

A new trial may be granted if the verdict is against

the clear weight of the evidence or the trial was unfair to

the moving party. See Miksis v. Howard, 106 F.3d 754, 757

(7th Cir. 1997). For the reasons discussed above, we do

not believe that the verdict is against the clear weight

of the evidence, nor do we believe that the trial was

unfair to Caterpillar.

The district court reasonably concluded that Caterpillar

was not prejudiced by Ms. David’s delay in revealing

the substance of Dieckow’s testimony. Notwithstanding

Caterpillar’s contention that it was unable to prepare a

full defense, Caterpillar was able to directly rebut

Dieckow’s testimony when it called Mitzelfelt to testify that

he had no such conversation with Dieckow.

As to Rebecca Smith’s testimony, we need not deter-

mine definitively whether her testimony that she be-

lieved that she had been discharged from the security

department in retaliation for complaining about sexual

harassment should have been admitted. Although a new

trial may be granted based on an error in the admission

of evidence, we have stated that “[a] court should only

grant a new trial if the improperly admitted evidence had

a substantial influence over the jury, and the result

reached was inconsistent with substantial justice.” Shick

v. Illinois Dep’t of Human Servs., 307 F.3d 605, 611 (7th

Cir. 2002) (internal quotations omitted). Even if the district

court erred in admitting Smith’s testimony, we do not

believe that the testimony had a “substantial influence

over the jury.” Id. Wholly apart from Smith’s testimony,

there was sufficient evidence from which a rational jury

could have concluded that retaliation was a determining

factor in Caterpillar’s decision to promote Lusher over

Ms. David.

22 No. 02-1354

D. Compensatory Damages

Caterpillar asserts that the award of compensatory

damages should be vacated or further reduced because

it is excessive and not supported by the evidence. We re-

view a district court’s remittitur under an abuse of dis-

cretion standard. See Jabat, Inc. v. Smith, 201 F.3d 852, 857

(7th Cir. 2000). In reviewing an award of compensatory

damages, we are guided by three inquiries: (1) whether

the award is monstrously excessive; (2) whether there is

no rational connection between the award and the evi-

dence; and (3) whether the award is roughly comparable

to awards made in similar cases. See E.E.O.C. v. AIC Sec.

Investigations, Ltd., 55 F.3d 1276, 1285 (7th Cir. 1995).

In this case, the jury awarded Ms. David compensatory

damages in the amount of $100,000. The district court,

however, found that amount “excessive compensation

for the embarrassment, disappointment, inconvenience,

and frustration that Ms. David experienced as compared

to the amounts awarded in comparable, and arguably

more egregious, cases.” R.147 at 10. After reviewing a

series of cases from this court, the district court reduced

the compensatory award from $100,000 to $50,000.

Given the discretionary standard of review and the

district court’s thoughtful consideration of this issue, we

cannot conclude that the district court abused its dis-

cretion. Ms. David testified that following Lusher’s retalia-

tory promotion she became depressed, angry and humili-

ated. She testified that she felt “robbed” and “cheated”

when the promotion was given to Lusher, “like a truck had

just run [her] over.” R.124 at 970-71. Ms. David believed

that she had been sent a message: “Lori David shut up.

Don’t raise your hand. You know, be a good employee.

Just come to work, do your job and don’t question things.”

Id. at 975. For a two-week period, Ms. David went home

No. 02-1354 23

straight from work at 5:00 p.m. and went to bed. Thereafter,

Ms. David continued to experience stomach aches and

difficulty sleeping at night as a result of the anxiety and

stress. Additionally, Ms. David testified that she felt

she had no choice but to reposition herself for a career in

marketing because she had no chance of promotion in

security; as a result, Ms. David took an educational leave

and was forced to use her savings in order to help fi-

nance the completion of her degree.

Based on the foregoing evidence, the district court

made a reasoned decision when it reduced the $100,000

award to $50,0000; there is no justification for our second-

guessing that determination.

E. Punitive Damages

Caterpillar further submits that the award of punitive

damages should be vacated or substantially reduced

because it is excessive and against the manifest weight

of the evidence.

Title VII authorizes an award of punitive damages when

a plaintiff demonstrates that the employer has engaged

in intentional discrimination “with malice or with reck-

less indifference to the federally protected rights of an

aggrieved individual.” 42 U.S.C. § 1981a(b)(1). “The terms

‘malice’ and ‘reckless indifference’ refer to the employer’s

knowledge that it may be violating federal law, not its

awareness that it is engaging in discrimination.” Cooke

v. Stefani Mgmt. Servs., Inc., 250 F.3d 564, 568 (7th Cir.

2001) (citing Kolstad v. American Dental Ass’n, 527 U.S. 526,

535 (1999)).

In this case, the jury awarded Ms. David punitive dam-

ages in the amount of $750,000. Under 42 U.S.C. § 1981a(b)

24 No. 02-1354

(3)(D), the district court was required to reduce the award

to no more than $250,000. However, the district court de-

termined that an additional reduction in the punitive

damages award to $150,000 was required to maintain a

reasonable relationship between the award and the par-

ticular harm that resulted from Caterpillar’s misconduct.

Before this court, Caterpillar argues primarily that Ms.

David should not be awarded punitive damages because

she wanted to leave the security department and Cater-

pillar helped her to do so. In its estimation, Caterpillar

treated Ms. David well; she ultimately received “a promo-

tion to a marketing job where she is now earning more

compensation and has far greater potential for advance-

ment than she would have had she remained in security.”

Appellant’s Br. at 38. We think that Caterpillar’s argument

misses the mark. Caterpillar has cited no authority for the

proposition that good deeds taken by the employer after

it has made an unlawful employment decision somehow

insulate the employer from an award of punitive dam-

ages. Furthermore, the jury was entitled to reject Caterpil-

lar’s contention that Ms. David really did not want to be

promoted in the security department when it awarded

her damages for emotional distress.

Because the award is not monstrously excessive and the

district court carefully reviewed the evidence and relevant

case law in its order granting the remittitur, we are not

inclined to second-guess its evaluation.

F. Back Pay

Finally, Caterpillar submits that the award of back

pay and prejudgment interest should be vacated or substan-

tially reduced because the award is unnecessary to make

Ms. David whole.

No. 02-1354 25

“The district court has broad equitable discretion to

fashion back pay awards to make the Title VII victim

whole.” E.E.O.C. v. Ilona of Hungary, 108 F.3d 1569, 1579

(7th Cir. 1997). Once the jury found unlawful retaliation

in violation of Title VII, “there was a strong presump-

tion that [Ms. David] was entitled to a back pay award on

the basis of what she would have earned absent the dis-

crimination.” Id. With this presumption in mind, the dis-

trict court awarded Ms. David back pay from July 3, 1995,

the date the jury found that she should have been pro-

moted to security sergeant, through the end of May 1996,

when she transferred to Caterpillar’s marketing depart-

ment. The amount awarded, $35,426.71, represents the dif-

ference between what Ms. David earned during this period

and what was earned by Lusher, the person who was

5

wrongfully promoted.

Caterpillar objects to the district court’s award of back

pay on two grounds. First, Caterpillar submits that the

award should be vacated because, although Ms. David “did

not get one job she claims she once wanted, she was

given another job that she had pursued for years, and is

now earning more compensation and has greater poten-

tial for advancement than she would have had she ac-

cepted the sergeant job offered to Lusher.” Appellant’s Br.

at 40.

We cannot accept this argument. The jury was entitled to

reject Caterpillar’s argument that Ms. David’s real goal was

to leave the security department for marketing, and indeed,

the record is full of evidence that she wanted to be pro-

5

Based on this amount, the district court also awarded

Ms. David $20,697.81 in prejudgment interest. Caterpillar’s

challenge to the award of prejudgment interest is tied to its

challenge of back pay.

26 No. 02-1354

moted in security. The fact that Ms. David now has great-

er earning and advancement potential is irrelevant to

the issue of back pay; Ms. David is not seeking an award

of front pay.

Second, Caterpillar argues that, at a minimum, the

award should be reduced substantially because Ms. David

should not be compensated for the time when she went

on voluntary educational leave. In Caterpillar’s view, an

award of back pay for this time is contrary to her duty to

mitigate her damages. We see no merit in this argument.

Ms. David took an educational leave in response to Cap-

tain Richardson’s instruction that she needed to obtain

her degree in order to have a realistic chance of being

promoted in the security department. The district court

was entitled to conclude that, had Ms. David been pro-

moted to sergeant, instead of Lusher, she would not have

taken the educational leave. Moreover, had Ms. David

not gone on educational leave, she would not have been

eligible for transfer to a higher paying position in the mar-

keting department.

Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-17-03