Naeem, Sally v. McKesson Drug Co

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3816

SALLY NAEEM,

Plaintiff-Appellee,

v.

MCKESSON DRUG COMPANY and

DAN MONTREUIL,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 5425—Joan B. Gottschall, Judge.

____________

ARGUED SEPTEMBER 15, 2005—DECIDED APRIL 12, 2006

____________

Before FLAUM, Chief Judge, and RIPPLE and KANNE, Circuit

Judges.

RIPPLE, Circuit Judge. Sally Naeem filed this action against

McKesson Drug Company (“McKesson”) and McKesson

employees Hank Weinmaster and Dan Montreuil, after

McKesson terminated her employment on February 2, 1996.

In her second amended complaint, Ms. Naeem alleged three

counts: (1) sexual discrimination in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (2)

retaliatory sexual discrimination in violation of Title VII,

and (3) a state-law claim for intentional infliction of emo-

2 No. 04-3816

tional distress. Counts 1 and 3 were tried to a jury in August

2001. The jury reached a verdict in favor of McKesson on

Count 1, and a verdict in favor of Ms. Naeem against

McKesson and Dan Montreuil on Count 3. Count 2 is not at

issue in this appeal and was ultimately dismissed with

prejudice on September 27, 2004. After this dismissal, the

defendants renewed their motion for judgment as a matter

of law, or alternatively, for a new trial on Counts 1 and 3.

The district court denied the defendants’ motion on all

grounds. For the reasons set forth in the following opinion,

we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

McKesson is a wholesale distributor of pharmaceuticals,

over-the-counter drugs and other products. In 1978, Ms.

Naeem began her career at McKesson as a keypunch

operator. She worked her way up to the post of operations

manager at McKesson’s Houston, Texas, Distribution

Center. In March, 1992, she was transferred to McKesson’s

distribution center in Romeoville, Illinois, and worked there

as the computer room supervisor. Ms. Naeem aspired to be

the operations manager at the Romeoville distribu-

tion center, and, in 1993, she agreed to assume the role

of transportation coordinator, a full-time job, while con-

tinuing to serve as computer room supervisor.1 As a practi-

1

Ms. Naeem’s duties in her role as computer room supervisor

included overseeing the computer room employees, who

coordinated the processing of product orders on the computer.

Her duties as transportation coordinator included the supervision

(continued...)

No. 04-3816 3

cal matter, therefore, she was working two full-time jobs.

There was no job description that established a priority

between the two positions. Although McKesson employees

testified at trial that they had observed various problems

with her performance, Ms. Naeem nevertheless received a

4.0% merit-based pay increase in 1993 with an explanation

that she exceeded most objectives. She also received a 3.7%

merit-based increase in 1994.

In March 1994, Ms. Naeem’s manager, Jerry Moultry,

made a sexual proposition to her that she rebuffed. Moultry

later was given a written warning for inappropriate behav-

ior based on this incident. Jeanette Maggio, the human

resources director, testified at trial that Moultry was very

upset when he was disciplined, and he worried that the

incident would hinder his career. The warning letter was

not placed in Mr. Moultry’s personnel file; instead it was

kept in a separate file to which few employees had access.

In July 1994, Ms. Naeem applied for the position of

operations manager. Her bid for this position was unsuc-

cessful; the position was awarded ultimately to Hank

Weinmaster, who was then serving as the operations

manager at a McKesson warehouse in Omaha. Ms. Naeem

then filed a discrimination charge with the Equal Em-

ployment Opportunity Commission (“EEOC”) in October

1994. She alleged that she had not been promoted to

operations manager due to sex discrimination and retalia-

tion, attributing her lack of success in obtaining the position

largely to Mr. Moultry’s negative input. In its defense,

McKesson explained to the EEOC that Ms. Naeem had not

1

(...continued)

of drivers: setting work schedules, coordinating routes, and

handling truck delivery issues.

4 No. 04-3816

been promoted because she was having difficulty meeting

performance standards in her position as transportation

coordinator/computer room supervisor.

In early 1995, Ms. Naeem became pregnant with her

fourth child. She experienced a difficult pregnancy, suffer-

ing from gestational diabetes, hypertension and other

complications. In May 1995, Moultry was replaced by

Dan Montreuil. Ms. Naeem claims that, after Mr. Montreuil

became manager of the distribution center, her work-

load increased significantly: she was to be available to

take calls from drivers at all times of the day and night,

and was given many responsibilities for a pending ware-

house reconfiguration. As part of the reconfiguration

project, she was put in charge of setting up computers. This

project involved climbing up a metal stairway onto a raised

mezzanine level and crawling under furniture to set up

the machines. She performed this task herself although,

given her pregnancy, it was difficult for her.

Ms. Naeem testified that she spoke with Maggio, the

human resources director, and advised her that she was not

feeling well and that her work was becoming overwhelm-

ing. She also spoke with Mr. Weinmaster who, according to

Ms. Naeem, did not offer any help.

On July 17, 1995, Ms. Naeem placed her concerns in a

grievance memo. Several days later, she met with Mr.

Montreuil, Weinmaster and Jan Hartley, a human resources

manager. Ms. Naeem testified that Mr. Montreuil was

very angry at the meeting and yelled that she would receive

no additional help, stated that she would have to continue

working the two full-time jobs, and demanded a doctor’s

note. Mr. Montreuil presented another version of the

meeting; he claimed that he had informed Ms. Naeem that

he would help her and had asked that she prepare a specific

list of items on which she needed assistance. He further

No. 04-3816 5

testified that she never prepared such a list. Ms. Naeem saw

her physician the following Monday. He recommended that

she go on short-term medical disability. She followed that

advice and took leave from July 25, 1995 until October 30,

1995.

Upon her return to work, Ms. Naeem was given a disci-

plinary warning for having failed to complete assignments

before beginning her leave. Consequently, she was placed

on a “Performance Improvement Plan” (“PIP”). The PIP

detailed a number of projects that Ms. Naeem was to

complete, in addition to her normal job duties, as well as

due dates for the various projects. Ms. Naeem testified that

the PIP was very onerous and that she had to work long

hours to try to meet plan deadlines. Ms. Hartley, the human

resources manager, admitted at trial that the PIP was

implemented to “get Sally’s attention,” to “send Sally a

message” and to “affect [her] mental processes.” Tr.XV

at 2591.

Additionally, while Ms. Naeem was absent, her transpor-

tation office was relocated during the warehouse

reconfiguration. Ms. Naeem claims that many of the

transportation records were lost in the process. She testified

that it was difficult to finish some of the tasks in the PIP

because the transportation records needed to com-

plete projects were missing after the office relocation.

Ms. Naeem received a second written disciplinary warn-

ing on December 7, 1995, for failing to complete truck

inspections properly. Ms. Naeem attributed the errors in the

inspection to her inability to find the necessary files. Ms.

Naeem also testified that, during this time period, after she

returned from leave, Mr. Montreuil reprimanded and

humiliated her at management staff meetings.

6 No. 04-3816

Ms. Naeem completed her first PIP and was given a

second PIP on December 27, 1999. Ms. Naeem thought it

would be extremely difficult to accomplish this PIP,

which was more burdensome than the previous PIP, but she

tried to work longer hours to complete the tasks. In addition

to her normal job responsibilities, the tasks she was to

complete for the PIP included driving to Indiana to train

truck drivers about drug testing requirements and drafting

reports for the upcoming inventory. Ms. Naeem also

testified that, during this period, Mr. Montreuil tampered

with information in her computer and changed the pass-

word so she would be unable to access her computer to

meet pending deadlines.

On January 8, 1996, Ms. Naeem’s two-year-old son

became ill, and she took a week off from work, consistent

with the Family and Medical Leave Act, to care for him.

According to Ms. Naeem, Mr. Montreuil called her about

five times during her leave to insist that she come back

into work; Ms. Naeem refused each time. When she re-

turned to work, Mr. Montreuil did not extend or excuse the

PIP deadlines due to her son’s illness.

On Tuesday, January 23, 1996, Mr. Montreuil and Hart-

ley suspended Ms. Naeem for three days after she failed

to order post-accident drug testing of a driver, Dave Barden,

who was involved in a truck accident on December 29, 1995

(“the Barden incident”). The suspension stated that the

failure to order a drug test was in violation of United States

Department of Transportation (“DOT”) regulations. Ms.

Naeem claims that the DOT regulations did not apply

because the truck involved was too small and that it was

Mr. Montreuil who failed to order the testing.

When Ms. Naeem returned to work on the following

No. 04-3816 7

Monday, January 29, she was given until noon on that

Friday, February 2, to complete the listed tasks on the PIP.

Ms. Naeem testified that she was “working round the

clock to get all this done,” but that it was “an impossible

task.” Tr.IX at 1272-73. Mr. Montreuil testified, however,

that she had sufficient time to complete the tasks in both

PIPs and that he had offered to help her with her other

duties, so that she could focus on PIP tasks. She did not

complete the tasks, and was fired on Friday, February 2,

1996.

At trial, Ms. Naeem presented evidence of the emotional

distress that she suffered during this time period. She

testified that, before she was fired, she was working al-

most around the clock, that she was getting into arguments

with her family and that she was suffering physical symp-

toms of anxiety including headaches and a recurring upset

stomach. Her husband and son offered testimony that she

became unable to eat, got into arguments, cried for hours,

was unable to breast-feed her new infant son and refused

sexual relations with her husband. She also suffered hair

loss. Her behavior drove one of her older sons from the

home. She testified that she did not seek psychiatric help

after she was fired because she was ashamed and because it

was too expensive. She began to contemplate suicide and,

finally, saw a psychiatrist who diagnosed her with major

depressive disorder and post-traumatic stress disorder.

After her discharge, she was unable to find a job, and

instead ran a convenience store with her family, where she

was robbed at gun point.2 Ms. Naeem later obtained a job as

an entry-level computer operator.

2

McKesson argues that the robbery is the reason that Ms. Naeem

sought psychiatric help.

8 No. 04-3816

B. District Court Proceedings

On May 27, 1997, Ms. Naeem filed her second amended

complaint, alleging three counts against McKesson: (1)

sexual discrimination in violation of Title VII, (2) retalia-

tory sexual discrimination in violation of Title VII and (3)

intentional infliction of emotional distress, an Illinois tort

claim. Ms. Naeem also brought Count 3 against Montreuil

and Weinmaster. As noted earlier, Count 2 has a long

procedural history; it was ultimately dismissed with

prejudice on September 27, 2004, and is not at issue in this

case.

Counts 1 and 3 were tried to a jury in August 2001. After

the close of Ms. Naeem’s case, the defendants moved for

judgment as a matter of law on the intentional infliction of

emotional distress claim. They argued that Ms. Naeem did

not present sufficient evidence that the defendants’ conduct

rose to the level of extreme or outrageous. The district court

orally denied the motion on the ground that sufficient

evidence had been presented. The jury found in favor of

McKesson on Count 1, but found McKesson and Dan

Montreuil liable on Count 3.3 Damages for the intentional

infliction of emotional distress claim, to be paid to Ms.

Naeem by McKesson, were awarded in the amounts of:

$235,000 for pain and suffering, $35,000 for past and future

medical care, $150,000 for lost earnings and benefits to

date and $75,000 for future lost earnings and benefits.

R.160 at 4-6. The jury also awarded Ms. Naeem $5,000 for

pain and suffering to be paid by Mr. Montreuil. Id.

After trial, the defendants renewed their motion for

judgment as a matter of law, or alternatively, for a new trial.

The defendants argued there was insufficient evidence to

3

The jury also found in favor of Hank Weinmaster on Count 3.

No. 04-3816 9

support an intentional infliction of emotional distress claim.

They further contended: (1) that the jury’s award of front

and back pay had to be vacated because such damages are

not available in an intentional infliction of emotional

distress case; (2) that an award of $240,000 for pain and

suffering was excessive, and (3) that the $35,000 award for

medical expenses was speculative. The district court denied

the motion. It noted that Ms. Naeem had “produced

adequate evidence to support the jury’s verdict on her

[intentional infliction of emotional distress] claim.” R.208 at

1. The district court next ruled that, with respect to the loss

of front and back pay, the damages are not “front and back

pay,” as contemplated by Title VII, but rather are compensa-

tion for the value of earnings and benefits lost as a result of

the defendants’ tortious actions. Id. at 1. With regard to the

award for pain and suffering, the district court held that the

award was not “monstrously excessive” based on the

evidence presented to the jury:

[p]laintiff’s evidence revealed a course of conduct which

threatened her physical health and the health of her

fetus, seriously affected the emotional well-being of her

family, and caused severe and possibly permanent

emotional damage, for which she ultimately sought and

has been found to need continuing professional therapy.

Id. at 2. The district court compared the award with other

cases from this and other federal circuits and concluded that

the award was not “out of line with the awards in cases

involving similar evidence of emotional damage.” Id. at 3.

The defendants again moved for judgment as a matter of

law, and submitted that the intentional infliction of emo-

tional distress claim was preempted by the Illinois Human

Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq. The district

court denied this motion, ruling that the

10 No. 04-3816

plaintiff presented abundant evidence at trial of defen-

dants’ intentionally extreme and outrageous behavior,

such as their incessant public criticism of her work

performance, their deliberate sabotaging of her com-

puter files, and their piling on of extra work that they

knew one person could not accomplish without great

difficulty or error.

R.256 at 2. The district court further noted that the “defen-

dants’ behavior toward plaintiff is actionable in tort apart

from defendants’ duty as an employer not to discriminate in

the workplace.” Id.

II

DISCUSSION

A. Preemption by the Illinois Human Rights Act

The IHRA gives the Illinois Human Rights Commission

(“IHRC”) exclusive jurisdiction over civil rights violations.

775 ILCS 5/8-111(C) (stating that “[e]xcept as otherwise

provided by law, no court of this state shall have juris-

diction over the subject of an alleged civil rights violation

other than as set forth in this Act.”). A violation of the IHRA

includes employment discrimination based on sex

or handicap. Id. 5/1-103(I), (O), (Q); Id. 5/1-102(A). Employ-

ment discrimination, in turn, is defined as incidents

in which an employer acts with respect to “promotion,

renewal of employment . . . discharge, discipline, tenure

or terms, privileges or conditions of employment on the

basis of unlawful discrimination or citizenship status.” Id.

5/2-102(A).

The defendants contend that Ms. Naeem’s intentional

infliction of emotional distress claim is preempted by the

No. 04-3816 11

IHRA because she bases her claim on the same course of

behavior that gave rise to her Title VII retaliation claim. The

district court determined that the relevant inquiry

was whether Ms. Naeem can establish the necessary

elements of her intentional infliction of emotional distress

claim “independent of any legal duties furnished by the

IHRA, not whether the two claims happen to arise from

the same course of conduct.” R.258 at 2. The district

court then concluded that there was “abundant evidence”

at trial of extreme and outrageous behavior on the part of

the defendants that could be the basis of an intentional

infliction of emotional distress claim, including “their

incessant public criticism of her work performance, their

deliberate sabotaging of her computer files, and their pil-

ing on of extra work that they knew one person could not

accomplish without great difficulty or error.” Id. Therefore,

the district court held that Ms. Naeem’s intentional infliction

of emotional distress claim was not preempted by the IHRA.

The Supreme Court of Illinois twice has addressed IHRA

preemption. In Geise v. Phoenix Co. of Chicago, Inc., 639

N.E.2d 1273, 1277 (Ill. 1994), the Supreme Court of Illinois

ruled that claims of negligent hiring and retention that are

“inextricably linked” to the concept of sexual harassment

are preempted by the IHRA. The court also held that

framing a claim in terms of a tort does not “alter the funda-

mental nature of [a] cause of action.” Id. The court revisited

the issue of IHRA preemption in Maksimovic v. Tsogalis, 687

N.E.2d 21 (Ill. 1997). It held that a plaintiff’s claims of

assault, battery and false imprisonment were not “inextrica-

bly linked” with claims of sexual harassment because the

plaintiff could establish “the necessary elements of each tort

independent of any legal duties created by the Act.” Id. at

22. Maksimovic clarified the court’s earlier reasoning in Geise,

stating:

12 No. 04-3816

The rule from Geise is not that the Act precludes the

circuit court from exercising jurisdiction over all

tort claims related to sexual harassment. Rather,

whether the circuit court may exercise jurisdiction over

a tort claim depends upon whether the tort claim is

inextricably linked to a civil rights violation such that

there is no independent basis for the action apart from

the Act itself.

Id. at 23 (emphasis in original). Therefore, the IHRA does

not preclude courts from exercising jurisdiction over all tort

claims factually related to incidents of sexual harassment.

Id. According to the court in Maksimovic, if a plaintiff can

allege facts sufficient to establish elements of a tort, that tort

is not preempted by the IHRA. Id. at 23-24 (observing that

there is nothing in the legislative history of the IHRA that

intended to abolish common law torts). When, as in

Maksimovic, the sexual harassment aspect of the case is

“merely incidental to what are otherwise ordinary common

law tort claims,” id. at 23, the claim is not preempted.

Appellate courts of Illinois twice have examined the scope

of the Maksimovic holding in the context of an employment-

related tort claim. In Benitez v. KFC National Management Co.,

714 N.E.2d 1002 (Ill. App. Ct. 1999), restaurant employees

sued their employer after their supervisor and fellow

employees poked holes in the ceiling of the restroom and

used those holes to watch and photograph the plaintiff-

employees undressing. The appellate court found that their

claim of intentional infliction of emotional distress was not

preempted because “the elements of intentional infliction of

emotional distress are quite different from those necessary

to establish a civil rights violation under the [IHRA],” and

the plaintiffs had alleged sufficient facts to support the

elements of intentional infliction of emotional distress. Id. at

No. 04-3816 13

1009 (citations omitted). In Veazey v. LaSalle Telecommunica-

tions, Inc., the appellate court found that an employee who

raised claims against his employer for terminating him “be-

cause he was Black” had no tort basis independent of the

IHRA for imposing liability upon his employer, and thus

the claim was preempted. 779 N.E.2d 364, 371 (Ill. App. Ct.

2002).

There are also pre-Maksimovic cases in Illinois that support

the view that claims of intentional infliction of emotional

distress are not categorically preempted by the IHRA. In

Sutton v. Overcash, the Illinois Appellate Court found that an

intentional infliction of emotional distress claim based on

sexual harassment was not preempted by the IHRA because

the tort claim required more proof than is necessary to state

a claim under the IHRA. 623 N.E.2d 820, 833 (Ill. App. Ct.

1993); see also Pavilion v. Kaferly, 561 N.E.2d 1245, 1250-51

(Ill. App. Ct. 1990) (same).4

4

The application of Maksimovic v. Tsogalis, 687 N.E.2d 21 (Ill.

1997) by federal district courts has led to sometimes incon-

sistent results. Compare Spahn v. Int’l Quality & Productivity, 211 F.

Supp. 2d 1072, 1075 n.2 (N.D. Ill. 2002) (noting that “claims for

[intentional infliction of emotional distress] are generally not

preempted by the IHRA when there is an underlying sexual

harassment claim” (citations omitted)), with Simon v. City of

Naperville, 71 F. Supp. 2d 882, 884 (N.D. Ill. 1999) (holding that an

intentional infliction of emotional distress claim that is based on

facts which also constitute sexual harassment is “surely pre-

empted” under the IHRA). Several district courts have deter-

mined that an intentional infliction of emotional distress claim is

not preempted by the IHRA, even when the plaintiff also claims

discrimination or retaliation based on sex. See, e.g., Temores v. SG

Cowen, 289 F. Supp. 2d 996, 1006-07 (N.D. Ill. 2003); Spahn, 211 F.

Supp. 2d at 1076; Warnell et al. v. Ford Motor Co. et al., 48 F. Supp.

(continued...)

14 No. 04-3816

4

(...continued)

2d 1095, 1097 (N.D. Ill. 1999). However, in others, the court has

determined that a plaintiff who claims sexual or other discrimina-

tion does face preemption of their intentional infliction of

emotional distress claim by the IHRA. See, e.g., Beard v. City of

Chicago, 299 F. Supp. 2d 872, 874-75 (N.D. Ill. 2004); Thomas v.

Habitat Co., 213 F. Supp. 2d 887, 899 (N.D. Ill. 2002); Haswell v.

Marshall Field & Co., 16 F. Supp. 2d 952, 965 (N.D. Ill. 1998).

Despite Maksimovic’s holding that preemption should rest on

an examination of legal duties, not on the factual basis of

claims, district courts have found IHRA preemption of an

intentional infliction of emotional distress claim when a plain-

tiff alleged the same conduct to support intentional infliction

of emotional distress as was alleged to support a claim of

disability, racial or sexual harassment. See Stansberry v. Uhlich

Children’s Home, 264 F. Supp. 2d 681, 690 (N.D. Ill. 2003) (noting

these claims are “inextricably linked”); see also Thomas, 213

F. Supp. 2d. at 899; Haywood v. Lucent Techs., 169 F. Supp. 2d 890,

914 (N.D. Ill. 2001) (stating that an intentional infliction of

emotional distress claim was preempted when the same con-

duct alleged to support intentional infliction of emotional distress

claim also was alleged to support discrimination claim); Simon, 71

F. Supp. 2d at 884 (same); Haswell, 16 F. Supp. 2d at 965 (holding

that an intentional infliction of emotional distress claim was

preempted because the “same allegations surface in [the plain-

tiff’s] disability discrimination claim” under the Americans with

Disabilities Act).

However, in other district court cases, the district court has

correctly looked to the source of the legal duty in determin-

ing preemption. In Roberts v. County of Cook, the plaintiff al-

leged sexual harassment by her employer who engaged “in a

pattern of verbal and physical sexual discrimination.” 213 F.2d

882, 884 (N.D. Ill. 2002). Nevertheless, the district court found

that an intentional infliction of emotional distress action was

(continued...)

No. 04-3816 15

We similarly have held that “discrimination and inten-

tional infliction of emotional distress are different wrongs,”

and so torts that do not depend on a civil rights violation

are not preempted. See Sanglap v. LaSalle Bank FSB, 345 F.3d

515, 519 (7th Cir. 2003). However, we also have held that a

claim of intentional infliction of emotional distress was

preempted by the IHRA when “the core of [the plaintiff’s]

theory” was that the plaintiff was a victim of racial harass-

ment. Smith v. Chicago Sch. Reform Bd., 165 F.3d 1142, 1151

(7th Cir. 1999). Similarly, in the context of sexual harass-

ment, we have found an intentional infliction of emotional

distress claim to be preempted when it “depend[ed] on

allegations of sexual harassment,” where the plaintiff’s

claim centered on the conduct of her superior, who

propositioned her, grabbed her breasts and forcibly kissed

her. Quantock v. Shared Mktg. Servs. et al., 312 F.3d 899, 902,

905 (7th Cir. 2002) (per curiam). The distinction between

claims that are preempted and claims that are not pre-

empted turns on the legal duty that the defendant allegedly

4

(...continued)

not preempted by IHRA, even though it involved sexual ele-

ments, because it did “not depend on the prohibitions against sex

discrimination for its survival.” Id. at 887 (citation omitted); see

also Arnold v. Janssen Pharmaceutica, Inc., 215 F. Supp. 2d 951, 955

(N.D. Ill. 2002) (“That extreme and offensive conduct might also

constitute sexual harassment . . . does not affect the viability of a

tort claim for [intentional infliction of emotional distress].”);

Spahn, 211 F. Supp. 2d at 1076 (holding that it is “perfectly clear

that the critical analysis focuses on legal duties, not facts”).

Another district court noted that if an employer acts in an

extreme and outrageous manner, and thus commits intentional

infliction of emotional distress, it is “irrelevant whether the

motive for this harassment” was based on a discriminatory intent.

Jimenez v. Thompson Steel Co., Inc., 264 F. Supp. 2d 693, 696 (N.D.

Ill. 2003).

16 No. 04-3816

breached; “that is, if the conduct would be actionable even

aside from its character as a civil rights violation because

the IHRA did not ‘furnish[ ] the legal duty that the defen-

dant was alleged to have breached,’ the IHRA does not

preempt a state law claim seeking recovery for it.” Krocka v.

City of Chicago, 203 F.3d 507, 516-17 (7th Cir. 2000) (citing

Maksimovic, 687 N.E.2d at 23).

In Ms. Naeem’s case, the district court ruled correctly

when it determined that her claim for intentional infliction

of emotional distress was not preempted. Following the

Maksimovic test, the proper inquiry was not whether the

facts that support Ms. Naeem’s intentional infliction of

emotional distress claim could also have supported a

discrimination claim, but instead whether Ms. Naeem can

prove the elements of intentional infliction of emotional

distress independent of legal duties furnished by the IHRA.

See also Sanglap, 345 F.3d at 519-20.

Under Illinois law, a plaintiff may recover damages

for intentional infliction of emotional distress only if she

establishes that: “(1) the defendant’s conduct was ex-

treme and outrageous, (2) the defendant intended to

inflict severe emotional distress or knew that there was

at least a high probability that his conduct would inflict

severe emotional distress, and (3) the defendant’s con-

duct did cause severe emotional distress.” Van Stan v. Fancy

Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997). Given the

extreme behavior outlined by the district court, and pre-

sented to the jury, we must conclude the defendants

committed a tort independent of any duties not to discrimi-

nate against Ms. Naeem. The conduct that she alleges is

not just sexually harassing conduct; instead, she alleges

a pattern of behavior by the defendants that created impos-

sible deadlines, set up obstacles to her performing her job,

and sabotaged her work. The defendants’ conduct will be

No. 04-3816 17

discussed in more detail below; however, it is clear that her

claim rests not just on behavior that is sexually harassing,

but rather behavior that would be a tort no matter what the

motives of the defendant. Therefore, her claim is not

preempted by the IHRA.

B. Sufficiency of the Evidence

The defendants also claim that Ms. Naeem presented

insufficient evidence to establish a claim of intentional

infliction of emotional distress and, consequently, that

they are entitled to judgment as a matter of law or, alterna-

tively, a new trial. As we have noted earlier, under Illinois

law, a plaintiff establishes intentional infliction of emotional

distress by showing that: “(1) the defendant’s conduct was

extreme and outrageous, (2) the defendant intended to

inflict severe emotional distress or knew that there was at

least a high probability that his conduct would inflict severe

emotional distress, and (3) the defendant’s conduct did

cause severe emotional distress.” Van Stan, 125 F.3d at 567.

We shall review the district court’s order denying a

motion for judgment as a matter of law de novo. Id. How-

ever, we shall not reverse unless “no reasonable juror”

could have found that Ms. Naeem established all of the

elements of her claim, and “we must view all evidence

in the light most favorable” to Ms. Naeem and “draw all

reasonable inferences” in her favor. Id.

We shall review the district court’s order denying a

new trial for abuse of discretion. Scaggs v. Consol. Rail

Corp., 6 F.3d 1290, 1293 (7th Cir. 1993). Because liability is

based on an Illinois tort, the role of the district court was to

determine whether the jury’s verdict was based on sufficient

proof to satisfy the claim for damages under Illinois law.

18 No. 04-3816

McClain v. Owens-Corning Fiberglas Corp., 139 F.3d 1124, 1125

(7th Cir. 1998).

First, the defendants claim that their conduct was

not “extreme and outrageous.” As they point out, Illinois

courts have been hesitant to find intentional infliction of

emotional distress in the workplace because, “if everyday

job stresses resulting from discipline, personality con-

flicts, job transfers or even terminations could give rise

to a cause of action for intentional infliction of emotional

distress, nearly every employee would have a cause of

action.” Graham v. Commonwealth Edison Co., 742 N.E.2d 858,

867 (Ill. App. Ct. 2000). Yet, Illinois courts have

found extreme and outrageous behavior to exist in the

employer/employee context when the employer “clearly

abuses the power it holds over an employee in a manner far

more severe than the typical disagreements or job-related

stress caused by the average work environment.” Honaker v.

Smith, 256 F.3d 477, 491 (7th Cir. 2001). In this case, viewing

the evidence in a light most favorable to Ms. Naeem, the

actions taken against Ms. Naeem clearly go far beyond

typical on-the-job disagreements, including the following:

forcing Ms. Naeem to climb up an unstable metal stairway

to hook up computer equipment during her pregnancy;

sabotaging Ms. Naeem’s computer to deny her access and

alter her files; publicly criticizing Ms. Naeem’s work during

meetings with other supervisors; moving her office and her

transportation files, causing her to be unable to locate

necessary paperwork; and increasing the amount of work

due under the PIPs, knowing that Ms. Naeem would not be

able to meet the deadlines.

The jury also was entitled to consider that the defen-

dants knew that Ms. Naeem was pregnant at the time,

and, consequently, was particularly susceptible to emotional

No. 04-3816 19

distress. See Patterson v. Xerox Corp., 901 F. Supp. 274, 279

(N.D. Ill. 1995) (holding that an employer who chastised a

pregnant employee at work and berated that employee over

the phone at home had acted in an “extreme and outra-

geous” manner); see also Wall v. Pecaro, 561 N.E.2d 1084,

1088 (Ill. App. Ct. 1990) (holding that “by reason of her

pregnancy, [the plaintiff] was peculiarly susceptible to

emotional distress”).

There was also sufficient evidence presented to the jury on

the second element, intent to cause emotional distress.

Hartley admitted at trial that McKesson management was

trying to “send Sally a message,” “affect [her] mental

processes” and “get [her] attention.” Tr.XV at 2591. Viewing

this evidence in the light most favorable to Ms. Naeem, the

jury could have found that the McKesson employees

intended to cause emotional distress.

Finally, there was sufficient evidence of the third element,

that Ms. Naeem actually suffered emotional distress. The

defendants argue that, because Ms. Naeem did not seek

psychiatric help until years after her employment

with McKesson terminated, she did not suffer severe

emotional distress. However, we previously have held that

seeking psychiatric help is not a necessary condition to a

finding that a defendant actually suffered from severe

emotional distress. See Bristow v. Drake Street, Inc., 41 F.3d

345, 350 (7th Cir. 1994) (holding that the only effect of such a

necessity “would be to increase psychiatrists’ incomes”).

Ms. Naeem’s own testimony establishes that, after she was

fired, her “self-esteem and self-confidence were zero,” she

was “so angry and depressed [she] didn’t want to talk or

deal with anybody,” she and her husband “didn’t have a

relationship” and she considered committing suicide. Tr.IX

at 1289-90, 1297. While preparing for depositions in this

case, she was “having nightmares” of Mr. Montreuil

20 No. 04-3816

“yelling at [her] and embarrassing [her] in front of every-

body.” Id. at 1295. Also, Ms. Naeem testified at trial that she

was too ashamed to seek psychiatric help after her employ-

ment with McKesson was terminated, nor could she afford

to go to a psychiatrist. Her family members also testified

about their observations of her mental state; her husband

testified that, by late 1995, she was losing her hair, that they

did not have any marital relations, that she was unable to

breast-feed her newborn son, and that she would “cry[] for

hours.” Tr.VII at 854-56. Ms. Naeem’s distress was similar

to the distress found actionable in Bristow, where a woman

who faced sexual discrimination at work sued for inten-

tional infliction of emotional distress. 41 F.3d at 349-50. We

found her emotional distress to be severe when she suffered

stomach pains and vomiting, stopped eating, cried all the

time, appeared frightened, was not a happy person, and

was not functioning well, even though she did not seek

psychiatric help. Id.

Additionally, Ms. Naeem’s psychiatrist, Dr. Lahmeyer,

testified that Ms. Naeem suffered from post-traumatic stress

disorder and major depressive disorder, which can be traced

to her experiences at McKesson. Dr. Lahmeyer testified that

he still meets regularly with Ms. Naeem, and that she is

being treated with antidepressant, anti-anxiety medication.

Ms. Naeem presented sufficient evidence from her psychia-

trist, and from her own testimony, to support her claim that

she suffered severe emotional distress. See Pavilon v. Kaferly,

561 N.E.2d 1245, 1252 (Ill. App. Ct. 1990) (jury had sufficient

evidence to find severe emotional distress when plaintiff

testified she needed continuing psychotherapy, and when

her psychotherapist testified that she was “scared, angry,

unable to cope with her child, her work, and her relation-

ship with men”).

No. 04-3816 21

Viewing all of the evidence in the light most favorable

to Ms. Naeem, a reasonable juror certainly could find that

she had established all the elements of her claim. The

district court did not abuse its discretion in denying defen-

dants’ motion for a new trial.

C. Objections to Expert Witness Testimony

The defendants next claim that the district court erred in

allowing the testimony of two of Ms. Naeem’s expert

witnesses. We shall discuss the testimony of each witness

below separately.

1. Professor William Anthony

At trial, William Anthony, a professor of management

at Florida State University, testified for Ms. Naeem as a

human resources expert and gave his opinion as to whether

McKesson followed its own human resources policies in

dealing with Ms. Naeem. Prior to trial, the defendants filed

a motion in limine seeking to exclude Prof. Anthony’s

testimony on the ground that it was inadmissible under

Federal Rules of Evidence 402, 403 and 702. The dis-

trict court granted the motion in part, excluding Prof.

Anthony’s testimony regarding whether McKesson fol-

lowed accepted human resource policies, but allowing

testimony regarding whether McKesson followed its own

policies.

The admissibility of expert testimony is governed by

22 No. 04-3816

Federal Rule of Evidence 702,5 as well as Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). “We first

undertake a de novo review of whether or not the district

court properly followed the framework set forth in Daubert.”

Fuesting v. Zimmer, Inc., 421 F.3d 528, 534 (7th Cir. 2005)

(citation omitted). Daubert, as extended to all expert testi-

mony including non-scientific expert testimony, requires the

district court to perform the role of gatekeeper and to

“ensure the reliability and relevancy of expert testimony.”

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

So long as the district court adhered to Daubert’s require-

ments, we shall not “disturb the district court’s findings

unless they are manifestly erroneous.” Fuesting, 421 F.3d at

534.

In ruling on the defendants’ motion in limine, the

district court simply stated that “[Prof.] Anthony has

sufficient expertise to be able to assist the jury in under-

standing the meaning of a company’s employment poli-

cies.” R.150 at 5. We have said that judges merely need

to follow Daubert in making a Rule 702 determination.

While the Daubert standard does not have to be recited

mechanically, “it is nonetheless crucial that a Daubert

5

Federal Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods

reliably to the facts of the case.

No. 04-3816 23

analysis of some form in fact be performed.” Fuesting, 421

F.3d at 535. In Fuesting, we held that conclusory state-

ments by the district court were not sufficient to show that a

Daubert analysis was performed adequately. Id. (holding

that a district court’s statements finding an expert’s creden-

tials to be sufficient was not enough; the district court also

needed to assess the reliability of the methodology used by

the expert). Similarly, in this case, the district court’s one

sentence, stating that Prof. Anthony has sufficient expertise,

is not enough to show that the district court applied the

Daubert standard; the court provided no analysis of Prof.

Anthony’s methodology. Therefore, the admission of Prof.

Anthony’s testimony should not be given the deference

normally afforded to a district court under the “manifestly

erroneous” standard. When a district court fails to consider

an essential Daubert factor, such as reliability, it has abused

its discretion. See Smith v. Ford Motor Co., 215 F.3d 713, 717

(7th Cir. 2000).

The defendants contend that Prof. Anthony’s testimony

gave opinions6 that were not founded in scientific, technical

or specialized knowledge. Defendants’ Br. at 30. We have

stated that “experts’ work is admissible only to the extent

that it is reasoned, uses the methods of the discipline, and

is founded on data. Talking off the cuff— deploying neither

data nor analysis—is not an acceptable methodology.” Lang

v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000).

Prof. Anthony did testify that he examined a number

6

An example of such an opinion, cited by defendants, is the

testimony that: “I concluded that in Sally’s case they didn’t lay

out the duties and responsibilities clearly enough, since there was

no written job description. And that’s normally how you

do that.” Tr.VI at 501.

24 No. 04-3816

of depositions from McKesson employees, as well as the

McKesson personnel policy manual, when formulating

his opinions. However, his opinions in court were not

tied to specific portions of the policy manual, and appeared

to be general observations regarding what is normal or

usual business practice.7 As such, his testimony did not

meet the requisite level of reliability. See Kumho Tire Co., 526

U.S. at 152 (holding that the objective of Daubert is to ensure

that “an expert, whether basing testimony on professional

studies or personal experience, employs in the courtroom

the same level of intellectual rigor that characterizes the

practice of an expert in the relevant field”).

Even though the admission of Prof. Anthony’s testimony

was in error, the defendants must show that the introduc-

tion of such evidence violated their “substantial rights” in

order to be entitled to relief under Federal Rule of Civil

Procedure 61.8 The defendants objected to specific state-

ments made by Prof. Anthony: (1) noting that there was

no written job description for Ms. Naeem’s position and

opining that the absence of one is abnormal; (2) concluding

that there was no consistency from one supervisor to

another; (3) stating that Ms. Naeem’s job duties as computer

room supervisor and transportation coordinator seemed to

7

Another example of such an opinion is Prof. Anthony’s

testimony that “some of the things that [Ms. Naeem] was asked to

do in the performance plan were extremely unusual for any job.

Like managing three shifts, for example.” Tr.VI at 517-18.

8

Federal Rule of Civil Procedure 61 states, in relevant part:

“No error in either the admission or exclusion of evidence . . .

is ground for granting a new trial or for setting aside a ver-

dict or for vacating, modifying, or otherwise disturbing a

judgment or order, unless refusal to take such action appears

to the court inconsistent with substantial justice.”

No. 04-3816 25

be incompatible; and (4) stating that some of Ms. Naeem’s

job duties were extremely unusual. Defendants’ Br. at 30.

However, Ms. Hartley corroborated statements (1) and (2)

while testifying when she admitted that there was no

written job description for Ms. Naeem’s position and that

there were no written documents that set forth changes in

the job responsibilities and duties expected of Ms. Naeem

by her current supervisor as compared to her previous

supervisors.9 Tr.V at 386-87, 391-92. Moreover, Prof. An-

thony’s opinion that some of Ms. Naeem’s job duties were

“extremely unusual” was elicited by the defendants on

cross-examination, Tr.VI at 517-18, and, when error is

invited, not even plain error permits reversal. See United

States v. Fulford, 980 F.2d 1110, 1116 (7th Cir. 1992) (holding

that a party who introduces testimony cannot later claim

that such testimony is irrelevant and prejudicial). Finally,

the defendants cross-examined Prof. Anthony regarding his

statement that Ms. Naeem’s duties as computer room

supervisor and transportation coordinator were incompati-

ble, and Prof. Anthony admitted that he did not perform a

job analysis nor did he know the full extent of what she was

9

No defense witness testified that the absence of a written

job description for Ms. Naeem’s position was “abnormal.” Ms.

Hartley was asked about the McKesson personnel policy manual,

which stated that “Every employee should have a job description

[and] specific position guide.” Tr.V at 362-63. Ms. Hartley

testified that the personnel policy that mandated a written job

description was not the policy that was used at the time of Ms.

Naeem’s employment in Romeoville. Id. at 366. Her testimony

was later impeached by the interrogatory answered by Ms.

Miller, vice president of McKesson, who stated that the policy

regarding written job descriptions in question was in place

during Ms. Naeem’s employment at Romeoville. Tr.VI at 481-83.

26 No. 04-3816

expected to do in her position. Tr.VI at 513-14. Given that

the objectionable testimony by Prof. Anthony was corrobo-

rated by other witnesses, elicited on cross-examination or

otherwise discredited on cross-examination, there was no

reversible error in the admission of Prof. Anthony’s testi-

mony.

2. David LaPorte

At trial, David LaPorte testified for Ms. Naeem as an

expert on DOT regulations governing post-accident drug

testing. He testified that Ms. Naeem’s failure to have Barden

tested for drugs after his December 29, 1995, accident was

not a violation of DOT regulations. The defendants offered

no objection during Mr. LaPorte’s direct examination when

he was asked to give an opinion regarding whether the

failure to test for drugs was a DOT violation. Tr.V at 307-08.

Before trial, however, the defendants filed a motion in

limine to exclude the testimony of LaPorte. The defendants

contended that his testimony about the applicable DOT

regulations was irrelevant to the questions to be decided

by the jury. They stressed that what was at issue was

Mr. Montreuil’s state of mind in suspending Ms. Naeem,

not whether he was actually correct in believing that DOT

regulations required drug testing after the Barden incident.

The defendants further argued that LaPorte’s testimony

regarding McKesson’s drug and alcohol testing policies was

not needed to help the jury understand the evidence, and

that such an opinion would usurp the jury’s fact-finding

role in their determination as to whether Mr. Montreuil

acted reasonably under the McKesson policies. No addi-

tional argument was made at trial during LaPorte’s testi-

mony. The defendants did not raise their current argument,

No. 04-3816 27

that LaPorte impermissibly provided conclusions of law,

until their renewed motion for judgment as a matter of law

or, alternatively, for a new trial. See R.288 at 12. In that

motion, they argued that the testimony of David LaPorte

was admitted in error because it allowed an expert witness

to provide “a legal interpretation and application of a

federal regulation.” See id. In their view, the court should

instruct the jury on the applicable law, not witnesses.

To preserve an issue for appellate review, a party “must

make a proper objection at trial that alerts the court and

opposing party to the specific grounds for the objection.”

United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir. 1988). An

objection is proper when “a timely objection or motion to

strike appears of record, stating the specific ground of

objection, if the specific ground was not apparent from the

context. . . .” Fed. R. Evid. 103(a)(1). “Neither a general

objection to the evidence nor a specific objection on other

grounds will preserve the issue for review.” Wynn, 845

F.2d at 1442; see also United States v. Laughlin, 772 F.2d

1382, 1392 (7th Cir. 1985) (holding that defendant’s objection

to the admission of photographs on the ground

of irrelevancy did not preserve objection under Federal Rule

of Evidence 404(b)). When a defendant does not object to the

admission of evidence during the trial, the objection is

waived and cannot be raised for the first time in a motion

for new trial or on appeal. United States v. Hack, 205 F.2d

723, 727 (7th Cir. 1953). In this case, the defendants did not

raise their current objection to LaPorte’s testimony in either

their motion in limine or during the testimony itself. The

defendants therefore waived their current objection to

LaPorte’s testimony.

In any event, we previously have stated that allowing a

witness to testify as to a legal conclusion may cause the jury

28 No. 04-3816

to accord too much weight to that testimony, and may infer

that the jury should look to that witness for legal guidance.

See Bammerlin v. Navistar Int’l Transp. Co., 30 F.3d 898, 900

(7th Cir. 1994); Harbor Ins. Co. v. Cont’l Bank Co., 922 F.2d

357, 366 (7th Cir. 1991). In Bammerlin and Harbor Insurance,

the expert witnesses were offering “opinions about legal

issues that . . . determine[d] the outcome of a case.” United

States v. Sinclair, 74 F.3d 753, 757-58 n.1 (7th Cir. 1996)

(citing cases). However, in the present case, the DOT

regulations at issue do not determine the outcome of Ms.

Naeem’s claims; rather, they are only a piece of evidence

regarding whether one of the disciplinary actions against

Ms. Naeem was justified.

Moreover, even if LaPorte did provide impermissible

testimony, it would not be grounds for reversal. Mr.

Montreuil admitted at trial that he knew that the truck

driven by Barden was not covered by the DOT regula-

tions at the time he disciplined Ms. Naeem for failing to

order post-accident drug testing. Therefore, his testimony

was consistent with the testimony of Mr. LaPorte, and,

consequently, there was no plain error. See also United States

v. Duvall, 272 F.3d 825, 829 (7th Cir. 2001) (holding that,

even if expert testimony opining that drugs were packaged

for distribution was admitted in error, the error was harm-

less because the defendant admitted he intended to distrib-

ute the drugs in question).

D. Jury Award for Pain and Suffering

The defendants submit that the jury’s award of $240,000

for pain and suffering is excessive and not in line with

comparable cases. The district court denied the defendants’

renewed motion for judgment as a matter of law or, alterna-

No. 04-3816 29

tively, for a new trial on this ground. The court applied the

federal standard for review of compensatory damages,

asking “whether the award is monstrously excessive;

whether there is no rational connection between the award

and the evidence, indicating that it is merely a product of

the jury’s fevered imaginings or personal vendettas; and

whether the award is roughly comparable to awards made

in similar cases.” EEOC v. AIC Sec. Investigations, Ltd., 55

F.3d 1276, 1285 (7th Cir. 1995) (citations omitted). The court

held that the award was not “monstrously excessive” and

that the defendants had failed to establish that such an

award was out of line with comparable cases. R.208 at 3-4.

Because Ms. Naeem was awarded damages solely on

her state-law intentional infliction of emotional distress

claim, Illinois law governs review of that award. Medcom

Holding Co. v. Baxter Travenol Labs., Inc., 106 F.3d 1388, 1397

(7th Cir. 1997). That conclusion is mandated by Gasperini

v. Center for Humanities, Inc., 518 U.S. 415, 431 (1996), in

which the Supreme Court held that a federal district court

must defer to state standards of review of damages for state

law claims because Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938), “precludes a recovery in federal court significantly

larger than the recovery that would have been tolerated in

state court.” A federal appellate court must review the

district court’s determination only for abuse of discretion.

Id. at 438.

Under Illinois law, “the evidence need only tend to show

a basis for the computation of damages with a fair degree of

probability.” Medcom Holding Co., 106 F.3d at 1398 (citation

omitted). A damages award will not be subject to remittitur

if it “falls within the flexible range of conclusions which can

be reasonably supported by facts because the assessment of

damages is primarily an issue of fact for jury determina-

30 No. 04-3816

tion.” Id. (citations omitted). Illinois courts, in applying this

standard, have “traditionally declined to make . . . compari-

sons [with amounts awarded in other cases] in determining

whether a particular award is excessive.” Richardson v.

Chapman, 676 N.E.2d 621, 628 (Ill. 1997) (citing cases); see also

Tierney v. Cmty. Mem’l Gen. Hosp., 645 N.E.2d 284, 294 (Ill.

App. Ct. 1994) (holding that “[w]ith regard to defendants’

arguments that the jury’s verdict should be compared to

other similar awards and thereby found to be excessive, this

is simply not the law in Illinois”) (citing cases).

In this case, the district court failed to apply the Illinois

standard for review of damages. It compared the award to

Ms. Naeem with awards to other plaintiffs in other cases in

the Seventh Circuit and other federal courts around the

nation. Although making such comparisons is the fed-

eral standard for review of compensatory damages, it is

not the established methodology employed by Illinois

courts. By using such a standard, a district court may

allow a larger recovery than would be allowable under

Illinois law, or, conversely, it may preclude an award

that would be allowable under Illinois law. Gasperini

prohibits such a result. 518 U.S. at 431. Indeed, Gasperini

stresses that substantial differences between federal and

state court damage awards may result if the federal court

does not apply state standards. See id. at 430-31. The possi-

bility of such differences is even more pronounced in this

case because the district court compared the damage awards

to cases outside the state of Illinois and even outside the

Seventh Circuit. Therefore, we must conclude that, in

employing this methodology, the district court committed

error. However, after a review under the correct Illinois

standards, we must conclude that the district court’s error

was harmless.

No. 04-3816 31

In reviewing damage awards, Illinois courts give great

deference to the jury. Illinois law makes clear that it is “the

jury’s function to consider the credibility of witnesses and

to determine an appropriate award of damages.” Richardson,

676 N.E.2d at 628. Indeed, the Supreme Court of Illinois has

stated that an award of damages “will be deemed excessive

if it falls outside the range of fair and reasonable compensa-

tion or results from passion or prejudice, or if it is so large

that it shocks the judicial conscience.” Best v. Taylor Mach.

Works, et al., 689 N.E.2d 1057, 1079 (Ill. 1997) (citations

omitted). In this case, Ms. Naeem presented evidence of her

pain and suffering, including: testimony from family

members about her emotional state and diminished capabil-

ities, testimony from her psychiatrist and her own testimony

regarding her emotional state while employed at McKesson

and after her termination. The jury had ample evidence to

form the basis of their award of $240,000, and we cannot say

that such an award “shocks the conscience.” See id.

E. Jury Award of Front and Back Pay

The jury awarded $150,000 for lost earnings and benefits

to date, and $75,000 for future lost earnings and benefits.

R.160 at 5. After judgment was entered, the defendants

moved for the district court to vacate these damages. They

contended that vacation was possible under Federal Rule of

Civil Procedure 59, which allows for a judgment to be

altered or amended when there has been a “manifest error

of law.” See Russell v. Delco Remy Div. of Gen. Motors Corp.,

51 F.3d 746, 749 (7th Cir. 1995). The defendants contend that

it was a manifest error of law to award what it classifies as

32 No. 04-3816

“front and back pay”10 to Ms. Naeem, because an award for

an intentional infliction of emotional distress claim is

intended to compensate the victim for the emotional distress

suffered as a result of the tortious conduct; awards for past

and future loss of income and benefits, according to the

defendants, are not “logical” for an intentional infliction of

emotional distress claim. Defendants’ Br. at 34-35. The

district court denied defendants’ motion; we review the

district court’s decision for abuse of discretion, and review

its interpretation of the law de novo. See Boyd v. Illinois State

Police, 384 F.3d 888, 897 (7th Cir. 2004).

The general rule of damages in a tort action in Illinois

is that:

the wrongdoer is liable for all injuries resulting di-

rectly from the wrongful acts, whether they could or

should not have been foreseen by him, provided the

particular damages are the legal and natural conse-

quences of the wrongful act imputed to the defendant,

and are such as might reasonably have been anticipated.

Sutton v. Overcash, 623 N.E.2d 820, 838 (Ill. App. Ct. 1993)

(citing Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691 (Ill.

1987)). In Sutton, the court allowed a jury instruction on lost

wages for the plaintiff’s intentional infliction of emotional

10

The district court noted in its ruling on the defendants’

renewed motion for judgment as a matter of law, or, alternatively

for new trial that the jury’s award was not technically for “front

and back pay” because those terms connote Title VII damages.

R.208 at 2. Instead, the jury was instructed that it could award

damages for “[t]he value of earnings and benefits lost” and “[t]he

present cash value of the earnings and benefits reasonably certain

to be lost in the future.” See id.; Illinois Pattern Instruction-Civil,

No. 30.07.

No. 04-3816 33

distress claim against her employer after the plaintiff

presented evidence that the defendant’s actions caused the

plaintiff to leave her job, and initially to take a job that paid

her less. Id. at 838-39. Although the defendants attempt to

distinguish Sutton on the ground that the plaintiff volun-

tarily left her job, while Ms. Naeem was discharged, we do

not believe this is a meaningful distinction. Just as in Sutton,

the defendants’ actions caused Ms. Naeem’s loss of wages.

These actions, as previously described, included hiding

necessary files and failing to change deadlines in her PIP.

These actions all contributed to her discharge. As the district

court stated when allowing Ms. Naeem to present evidence

of lost earnings, “if you were to believe the plaintiff’s

testimony, you could find that . . . the plaintiff’s failure to do

the things she had to do to keep her job was caused by the

defendants’ tortious conduct.” Tr.X at 1484. Ms. Naeem also

testified that she was unable to find a job after a job search,11

and that her depression caused her difficulties in mak-

ing good decisions. Tr.IX at 1288-94.

The defendants also argue that the award for lost earnings

and benefits is against the weight of the evidence. Under

Illinois law, “[i]n order to recover lost earnings, all the law

requires is that the plaintiff present evidence which will

establish, with a fair degree of probability, a basis for the

assessment of damages.” Sutton, 623 N.E.2d at 838. As noted

above, Ms. Naeem presented testimony with respect to how

the defendants caused her to lose her job and how she had

difficulty finding another job after her termination. Ms.

11

Ms. Naeem testified that her attempts to find another job

included: getting addresses of other drug companies from the

library and sending them resumes, calling human resources

directors for drug companies to inquire about available positions,

and looking through the newspaper to find job listings. Tr.IX

at 1288-90.

34 No. 04-3816

Naeem also presented the testimony of Sandor Goldstein, an

actuary, who calculated the present value of Ms. Naeem’s

lost earnings and benefits12 to be between $337,570 and

$510,382. Tr.XI at 1594-96. Therefore, there was an eviden-

tiary basis for the jury’s conclusion that defendants’ actions

caused a loss of past and future earnings, as well as relevant

evidence for the jury to consider in calculating those losses.

It was not an abuse of discretion for the district court to find

the evidence provided the proof of damages. See McClain v.

Owens-Corning Fiberglas Corp., 139 F.3d 1124, 1126 (7th Cir.

1998) (holding that “[g]enerally, an abuse of discretion only

occurs where no reasonable person could take the view

adopted by the trial court” (citing Harrington v. DeVito, 656

F.2d 264, 269 (7th Cir. 1981))).

Conclusion

For the reasons set forth in this opinion, the judgment of

the district court is affirmed.

AFFIRMED

12

Goldstein made these calculations based on an assumption that

Ms. Naeem would stay employed at McKesson, and took into

account the difference between her McKesson salary and her

current salary. Tr.XI at 1593-94.

No. 04-3816 35

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-12-06