In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2249, 07-2296 & 07-2297
A RCHIE D. T HOMPSON, JR.,
Plaintiff-Appellee,
Cross-Appellant,
v.
M EMORIAL H OSPITAL OF C ARBONDALE,
formerly known as A MERICAN H OME
P RODUCTS C ORPORATION,
Defendant-Appellant,
Cross-Appellee,
and
JACKSON C OUNTY, ILLINOIS, d/b/a
JACKSON C OUNTY A MBULANCE S ERVICE,
Defendant,
Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Illinois.
No. 04 C 4162—G. Patrick Murphy, Judge.
A RGUED S EPTEMBER 15, 2008—D ECIDED N OVEMBER 3, 2010
2 Nos. 07-2249, 07-2296 & 07-2297
Before K ANNE, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Archie D. Thompson, Jr. was
the only African-American paramedic in the Southern
Illinois Regional Emergency Medical System. He was
reduced to probationary status after he assisted a
diabetic patient in her home but did not call medical
control after the patient declined further treatment, even
though other paramedics had handled diabetic patient
responses the same way and were not disciplined. A jury
agreed with Thompson that he was placed on probation
only because of his race and awarded him $500,000.
Memorial Hospital of Carbondale appeals the jury’s
verdict against it. Although it defended its case at trial on
the basis that race was not the reason for the probation
decision, it argues different theories on appeal. We con-
clude that none warrant reversal. Because it knew before
trial that whether Memorial and Thompson had a con-
tractual relationship was a factual question but it did
not raise the issue at trial, we affirm the judgment on
Thompson’s 42 U.S.C. § 1981 claim. A jury could have
drawn the inference that Paula Bierman, the Emergency
Medical System Coordinator, had a singular influence on
the probation decision, so the admission of her racial
animus was not an abuse of discretion. And in light of
the fact that it did not argue to the jury that Thompson
had failed to suffer a materially adverse employment
action, we deny its request to set aside the verdict on
that basis. We do, however, find that remittitur of the
$500,000 verdict to $250,000 is warranted. Finally, we
deny Thompson’s cross appeal of the grant of summary
judgment against him on his claims of hostile work envi-
Nos. 07-2249, 07-2296 & 07-2297 3
ronment and constructive termination, as the circum-
stances here did not rise to those levels.
I. BACKGROUND
Memorial Hospital of Carbondale is responsible for
medical control of the Southern Illinois Regional Emer-
gency Medical System. The Jackson County Ambulance
Service (JCAS) served the Southern Illinois Regional
Emergency System. Archie Thompson became a JCAS
paramedic in 1998. Thompson was the only African-
American paramedic with JCAS and the only African-
American who had worked as a full-time paramedic in
the system.
On September 29, 2003, Thompson responded to a call
for a diabetic emergency, to an address he recognized as
the site of a previous diabetic call. When he arrived,
he found a woman lying on her bed and immediately
checked her blood glucose level. He administered D50,
a dextrose solution, and the woman immediately came
to. Thompson told her that the ambulance could take
her to the hospital, but the woman declined and
asserted that she did not want further assistance. After
the woman signed a form refusing further medical treat-
ment, Thompson returned to his ambulance base.
When he arrived back at his base, he spoke with
Tim Brumley, the JCAS supervisor on duty at the time.
Brumley asked Thompson whether he had called medical
control before accepting the patient’s refusal of further
treatment, and Thompson responded that he had not.
4 Nos. 07-2249, 07-2296 & 07-2297
Brumley told Thompson that he should have contacted
medical control because the call had been an advanced
life support call where Thompson had started an IV and
administered the dextrose solution. Thompson said he
would make the call in the future. The next day, Thompson
responded to a diabetic call, and he called medical
control before he returned to his base.
The System had protocols in place for different
scenarios, including responses to diabetic emergencies.
The protocol in effect in September 2003 provided that
upon responding to a diabetic emergency call, a para-
medic should call medical control after administering
a dextrose solution and before leaving the patient. This
protocol, which had been updated about two years
earlier, was not available in up-to-date form in
Thompson’s ambulance or at his base in September 2003,
and Thompson maintained he did not know about it.
After Brumley spoke with Thompson, he checked
with other paramedics to assess whether they had also
failed to contact the hospital under similar circumstances.
Paramedic Aaron Glen, who is white, told Brumley that
he had handled a diabetic call the same way that Thomp-
son had, and another paramedic acknowledged that
he might have handled a diabetic call the same way.
Brumley then contacted Paula Bierman, who was the
System’s Emergency Medical System Coordinator. She
began in that role in 1992. Brumley informed Bierman that
there was a problem with paramedics’ responses to
diabetic calls. He described the September 29, 2003
diabetic emergency in which Thompson had not called
Nos. 07-2249, 07-2296 & 07-2297 5
medical control. Bierman asked Brumley to write an
incident report, which Brumley did. Within a few days,
Brumley also informed Bierman that Glen said he had
been handling diabetic calls the same way as Thompson
had.
On October 3, 2003, Bierman wrote on the bottom of
Brumley’s incident report that system protocols had not
been followed regarding contacting medical control
in diabetic emergencies. Bierman also wrote a one-page
letter to Dr. Daniel Doolittle, the Medical Director at
Memorial, a position he assumed in 2003. Bierman’s
letter began, “Archie Thompson handled this call with a
total disregard for System protocols and requirements.”
She wrote that his failure to know the protocol was
“an unacceptable excuse” and also that Thompson had
failed to maintain proficiency in drip rates and dosages
as evidenced by a recent examination where he missed
ten of twelve questions, and that the failure was
serious and warranted immediate disciplinary action.
Bierman also informed Dr. Doolittle that a memoran-
dum had been sent to all JCAS personnel reinforcing
the importance of following protocol and notifying them
that failure to comply is cause for dismissal.
Within a few days of receiving Bierman’s letter,
Dr. Doolittle specifically asked Bierman whether she was
aware of anyone else who had not followed the protocol,
and Bierman responded “no.” Dr. Doolittle also asked
Bierman to run reports to check whether any other para-
medic had violated this protocol. Bierman reported
back that she did not locate any other instances.
6 Nos. 07-2249, 07-2296 & 07-2297
Dr. Doolittle did speak with Gerald Lence, a JCAS super-
visor who said he thought Thompson should be sus-
pended, and two other supervisors, one of whom
thought other paramedics had failed to follow the
diabetic protocol but was not sure.
On October 6, 2003, Bierman drafted and signed
Dr. Doolittle’s initials on a “Report of Disciplinary Ac-
tion” which stated that Thompson is “removed from
primary paramedic duties until further notice and inves-
tigation is complete.” The reason given was twofold:
(1) Thompson initiated advanced life support procedures
and discontinued treatment on a hypoglycemic patient
without contact with medical control, and (2) Thompson
was unable to demonstrate competency in the system
drug administration and had missed ten out of twelve
drug calculation questions on a quiz. All the other para-
medics took the drug calculation quiz as well, but
Bierman acknowledged at trial that despite requests to
produce the tests, the only test that could be found was
Thompson’s.
Bierman and Dr. Doolittle met with Thompson on
October 6, and two days later, Thompson received a
letter stating that he had been placed on paid probation
for three months. The letter noted the violation of
protocol and the drug calculation test score, and it also
mentioned that Thompson had weakness in communica-
tion skills and that his radio reports lacked organization
and failed to relay important medical information and
assessment. Bierman sent an email the same day to the
JCAS paramedic supervisors advising them that Thompson
Nos. 07-2249, 07-2296 & 07-2297 7
“will undergo strict disciplinary action.” The email said
he had been “reduced to probationary status” and
directed that supervisors were to observe Thompson’s
performance and not intervene unless absolutely neces-
sary. In addition, supervisors were not to give Thompson
feedback on how he handled the calls except to protect
a patient, even if he requested feedback. The reduction
to probationary status meant that Thompson had to be
supervised on all calls. His work schedule also would
be altered with various days and shifts, and additional
testing or skill demonstration could be imposed.
Thompson was the only paramedic in the system
placed on probation for violating the diabetic protocol,
although Dr. Doolittle, Brumley, and Dottie Miles, the
Director of the Ambulance Service, all testified that vio-
lating the protocol was a serious matter and that
anyone who violated the protocol should be disciplined
in the same manner. Thompson testified that during his
probation, while he was supervised by Lence, he was
exposed to a homeless person’s blood and that even
though he asked for assistance because the person was
bleeding, no supervisors assisted him.
Thompson also testified that before he became a full-
time paramedic, Bierman called him into her office and
said he was about to become a paramedic and could not
do what other paramedics do. He recounted at trial:
“And I looked at her and I said, Paula, what do you
mean? Is it because I’m black I can’t do what other para-
medics do? She said, yes, it’s because you are black you
can’t do what other paramedics do, and I’ll be watching
you.” Thompson stated that he was shocked, humiliated,
8 Nos. 07-2249, 07-2296 & 07-2297
and in disbelief after the conversation. On another occa-
sion, he said, Bierman threatened him that he would
be hearing from her and said that because he was black,
he would not be able to do what other paramedics did.
He also stated that on one occasion in the hospital emer-
gency room, Bierman criticized him, testifying, “[a]nd if
my memory serves me right, and I know it does,
she reminded me again that I couldn’t do what other
paramedics do because I am black.” Thompson also
testified that Bierman came up to him one day in about
2001 and said she was thinking about having a party in
her home but could not invite Thompson because she
was unsure what her neighbors would think if she had
a black person at her house.
Thompson also discussed various other tests he had
taken over the years on such subjects as pediatrics, ad-
vanced cardiac life support, pediatric advanced life
support, and basic trauma life support, all of which he
passed. He said he had taken about 20-25 quizzes
from 1997 through 2003 and had passed them all until the
drug calculation quiz. With respect to this test, he ex-
plained that he had been home asleep and then was
called to come to work early. When he arrived, he was
administered a quiz that asked questions regarding
drip rates. Thompson said he had not received very
much education concerning drip rates, and, as a result,
he usually called into the hospital if the need arose, and
the hospital would tell him what drip rate to use. Thomp-
son stated that all the paramedics who took the drip
rate test received low scores.
Nos. 07-2249, 07-2296 & 07-2297 9
Another former paramedic, Kelly Owens, testified that
she had not called medical control in D50 situations,
and that it would have been obvious from her reports.
She also stated that Bierman had not reviewed her re-
ports. Owens also testified about Lence. She said she asked
one day whether there were any new hires, and Lence
responded that someone had applied but “that we were
not going to have that here any more.” When
Owens asked what he meant, Lence said “he told me
that she was half-and-half, as far as African-American
and half-white and we were not going to hire her.” She
also testified that she heard other employees use deroga-
tory terms in Lence’s presence when referring to African
Americans, including the terms “nigger” and “coon,” and
that Lence allowed it to go on. After that testimony, the
court gave the jury an instruction that the evidence
was “admitted for the limited purpose of assisting you
in determining the credibility of the statements alleged
to have been made by Gerald Lence, specifically there
are in the record these run reports that we heard about
yesterday where he stressed the performance of the
plaintiff in this case.”
Laura Herzog, a licensed clinical professional counselor,
also testified. She said that Thompson first came to see
her in November 2003. She testified that he was articu-
late, sad, and often tearful in the session. He discussed
how his stress at work had made him increasingly emo-
tional and irritable, and he was feeling increasing
anxiety and sadness. She diagnosed him with an adjust-
ment disorder, depression and anxiety. Thompson vis-
ited Herzog four more times. He took a medical leave
10 Nos. 07-2249, 07-2296 & 07-2297
of absence from work and then decided not to return to
work, leaving him without insurance to pay for further
counseling sessions.
Thompson filed suit against Memorial Hospital of
Carbondale and Jackson County Ambulance Service
alleging, as relevant here, racial discrimination in
violation of Title VII and section 42 U.S.C. § 1981, as well
as hostile work environment and constructive discharge
claims. The district court granted summary judgment
in favor of Jackson County Ambulance Service on all
the claims against it. Therefore, the claims that remained
for trial were Thompson’s allegations against Memorial
of racial discrimination in violation of Title VII and
section 1981. Memorial argued at trial that the only
issue the jury had to decide was whether it had made
the probation decision because of Thompson’s race. The
jury ruled in Thompson’s favor, and it awarded him
$500,000. Memorial Hospital appeals, and Thompson cross-
appeals the grant of summary judgment against him on
the hostile work environment and constructive dis-
charge claims.
II. ANALYSIS
A. Thompson’s Cross Appeal
We begin with Thompson’s cross appeal, in which he
argues that the district court should not have granted
summary judgment in the defendants’ favor on his
hostile work environment and constructive discharge
claims. Our review of a grant of summary judgment is
de novo, and we construe all facts and take all reasonable
Nos. 07-2249, 07-2296 & 07-2297 11
inferences in favor of the nonmoving party. Poer v.
Astrue, 606 F.3d 433, 438-39 (7th Cir. 2010).
To constitute a hostile work environment under Title VII,
the alleged harassment must be both subjectively and
objectively so severe or pervasive that it alters the condi-
tions of the plaintiff’s employment. See Dear v. Shineski,
578 F.3d 605, 611 (7th Cir. 2009). Thompson points to a
statement from Lence in 2002 that Thompson’s children
would look like the black beans that were in a jar and
an instance in March 2002 when Larry Jolly dared Thomp-
son to call him a racist. These comments took place
outside his presence. Cf. Mannie v. Potter, 394 F.3d 977,
983 (7th Cir. 2005). Thompson did point to a few state-
ments made directly to him, including Bierman’s state-
ment that Thompson could not do what others could do
because he was black and another where she said she
was not sure what her neighbors would think if she
invited a black person to her home. Although we by no
means condone this conduct, we agree with the district
court that these circumstances do not reflect severe
or pervasive enough conduct to be actionable under
Title VII. See Ford v. Minteq Shapes and Servs., Inc., 587
F.3d 845, 848 (7th Cir. 2009).
Thompson also appeals the grant of summary judg-
ment to the defendants on his constructive discharge
claim. A plaintiff proceeding under this theory must
demonstrate a work environment that is even more
egregious than that needed for a hostile work environ-
ment such that he was forced to resign because his
working conditions, “from the standpoint of the rea-
12 Nos. 07-2249, 07-2296 & 07-2297
sonable employee, had become unbearable.’ ” Fischer v.
Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008) (quoting
E.E.O.C. v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th
Cir. 2002)). Because we affirm the grant of summary
judgment on his hostile work environment claim, Thomp-
son’s constructive discharge claim falls as well. See
Bannon v. Univ. of Chicago, 503 F.3d 623, 630 (7th Cir. 2007).
B. Memorial Hospital’s Appeal
Memorial makes several arguments on appeal, among
them that it did not have a contractual relationship with
Thompson for purposes of section 1981, that he did not
suffer a materially adverse employment action, and that
Bierman was not a decision maker (and so the jury
should not have heard racially charged comments she
had made). Despite the understanding that these ques-
tions presented factual matters for trial, Memorial
did not present these theories to the jury. Instead, Memo-
rial made it clear before and during trial that its only
defense was that its disciplinary decision was not made
because Thompson was black.
In its first pre-trial motion, for example, Memorial
stated that “the single issue remaining in dispute is
whether Plaintiff was subjected to disparate treatment
when he was placed on probation by Daniel Doolittle
on October 8, 2003.” Its closing argument made ex-
plicitly clear that it was defending the case only on
the ground that Thompson had not been reduced to
probationary status because of his race. It told the jury
in closing: “The only thing you have to decide [is] was
Nos. 07-2249, 07-2296 & 07-2297 13
this decision to put him on probation made because
he’s African American? That’s the only decision you
have to make. And the answer to that is no.” Memorial
closed its argument by asking the jury to return a
verdict against Thompson “because he has not met his
burden to prove to you that the decision to place him on
probation, the decision Dr. Daniel Doolittle made, that
that decision was because of his race. And that, ladies
and gentlemen, is the only issue that you are here to
decide.”
Consistent with how Memorial defended the case at
trial, the jury was instructed, without objection, as follows:
Plaintiff claims that he was placed on probation
because of his race. To succeed on this claim,
plaintiff must prove by a preponderance of the evi-
dence that he was placed on probation because of
his race, African-American. To determine that plain-
tiff was placed on probation because of his race,
you must decide that defendant would not have
placed plaintiff on probation had he had not been
African-American but everything else had been the
same. If you find that plaintiff has proved this claim
by a preponderance of the evidence, then you
must find for the plaintiff. However, if you find that
plaintiff did not prove his claim by a preponderance
of the evidence, then you must find for the defendant.
As we detail further below, Memorial’s attempts to
defend its case on appeal on theories not argued to the
jury do not succeed here.
14 Nos. 07-2249, 07-2296 & 07-2297
1. Section 1981
Thompson’s claims included one under 42 U.S.C. § 1981,
which provides that “[a]ll persons within the jurisdic-
tion shall have the same right in every State and Territory
to make and enforce contracts . . . as is enjoyed by
white citizens.” 42 U.S.C. § 1981(a). For section 1981(a)
purposes, “the term ‘make and enforce contracts’
includes the making, performance, modification, and
termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contrac-
tual relationship.” 42 U.S.C. 1981(b). Section 1981 pro-
hibits discrimination against employees on the basis of
their race provided there is a contractual relationship.
Memorial argues on appeal that it did not have a con-
tractual relationship with Thompson that was actionable
under section 1981, and that the district court should
have granted its motion to dismiss the section 1981
claim or its motion for a judgment as a matter of law on
the claim.
But although Memorial acknowledged that whether a
contractual relationship existed between Thompson and
Memorial was an issue of fact, Memorial never asked
the jury to make that determination. In denying
Memorial’s motion to dismiss the section 1981 claim,
the district court stated that factual development was
needed to determine whether there was a contract of
employment for section 1981 purposes. Evidence ad-
duced later included that all paramedics served under
Memorial’s Medical Director, that persons could not be
hired by the ambulance service without approval of the
hospital, that the Medical Director and EMS system
Nos. 07-2249, 07-2296 & 07-2297 15
controlled whether a person can work in the system as
a paramedic, and that Thompson was a party to a col-
lective bargaining agreement. Memorial explicitly stated
in its motion for summary judgment: “In denying [Memo-
rial]’s Motion [to dismiss Count II of the complaint], the
court specifically held that factual development was
needed to determine whether plaintiff had a contract
of employment sufficient to sustain a § 1981 claim. . . .
While a dispute may exist as to whether Thompson had
a contract and with whom the contract was made,
this dispute is not material for purposes of summary
judgment.” (Memorial argued that summary judgment
on the section 1981 claim was warranted for other
reasons, including a lack of discriminatory intent.) So
Memorial took the position before trial that the argu-
ment it makes now—whether Thompson had a contract
with it for section 1981 purposes—was a factual question.
And as we discussed, Memorial made the strategic deci-
sion to defend the case at trial only on the ground that
race was not the reason Thompson had been disciplined.
It did not make the contract argument to the jury or
request a jury instruction on the contractual question.
Memorial has therefore waived this argument. See Staub
v. Proctor Hosp., 560 F.3d 647, 655-56 (7th Cir. 2009), cert.
granted, 130 S. Ct. 2089 (2010); United States v. Jaimes-
Jaimes, 406 F.3d 845, 848 (7th Cir. 2005); see also Robinson
v. McNeil Consumer Healthcare, 615 F.3d 861, 871 (7th
Cir. 2010) (argument forfeited because plaintiff did not
propose instructions that would have asked the jury
to determine whether she had merely failed to avoid
16 Nos. 07-2249, 07-2296 & 07-2297
avoidable consequences, rather than having been
contributorily negligent).
2. Comments by Bierman and Lence
In light of the district court’s grant of summary judg-
ment in its favor on Thompson’s hostile work environ-
ment claim, Memorial argues that the jury should not
have heard certain comments made by Bierman and
Lence. The jury heard comments Bierman made to Thomp-
son, including that he could not do what others could
do because he was black. The jury also heard that Lence
made racially insensitive remarks and did not take
action when other employees used racial slurs in his
presence. We review the district court’s decision to
admit this evidence for an abuse of discretion. See Griffin
v. Foley, 542 F.3d 209, 217 (7th Cir. 2008).
We turn to Bierman’s comments first. Memorial filed
a motion in limine to exclude Bierman’s comments,
arguing that she had not made the decision to place
Thompson on probation and that any racial animus
she held was therefore not relevant. The district court
denied the motion but made it clear that Memorial’s
counsel could prepare a limiting instruction that it
would give to the jury to ensure the jury did not con-
sider Bierman’s remarks for an improper purpose or as
relevant to any claim that had been dismissed. Counsel
stated it would provide a limiting instruction, but it
never did.
We have said that when an employee is not a decision
maker, her animus is relevant only if she exerted such
Nos. 07-2249, 07-2296 & 07-2297 17
significant influence over the decision that her animus
can be imputed to the decision maker. Kodish v. Oakbrook
Terrace Fire Prot. Dist., 604 F.3d 490, 508 (7th Cir.
2010). Whether that influence must be a singular influ-
ence is unclear in our circuit. See Kodish, 604 F.3d 490,
508 (7th Cir. 2010) (discussing different standards em-
ployed); Staub v. Proctor Hosp., 560 F.3d 647, 659 (7th Cir.
2009) (holding singular influence necessary), cert. granted,
130 S. Ct. 2089 (2010).
Our case law in this area has not been entirely con-
sistent, and the resolution of the Supreme Court’s recent
grant of certiorari in Staub will help clarify this area of
the law. To the extent a singular influence is necessary,
we have described it as “one in which a subordinate
employee possesses so much influence and power over
the nominal decision maker that the employee, for
all intents and purposes is in fact, the true functional
decision maker.” Kodish, 604 F.3d at 508. In Kodish, for ex-
ample, all of the board’s information passed through a
chief, the board did not conduct its own investigation
or gather any of its own information, and, although it
might have reviewed some employment evaluations,
two of the four were written by the chief. Id. at 509. We
concluded that it was a plausible inference, if not the
sole inference, that the chief had exerted a singular in-
fluence over the board. Particularly relevant here, we have
noted that singular influence may be exercised by,
among other things, “supplying misinformation or
failing to provide relevant information to the person
making the employment decision.” Brewer v. Bd. of Trs. of
Univ. of Ill., 479 F.3d 908, 917 (7th Cir. 2007). That said,
18 Nos. 07-2249, 07-2296 & 07-2297
“where a decision maker is not wholly dependent on a
single source of information, but instead conducts its
own investigation into the facts relevant to the decision,
the employer is not liable for an employee’s submission
of misinformation to the decision maker.” Id. at 918.
So we have rejected the so-called “cat’s paw” theory
when there is “neither singular influence nor proof
that the decision maker’s review was ‘anything but inde-
pendent . . .’ ”. Staub, 560 F.3d at 657 (quoting Metzger v.
Ill. State Police, 519 F.3d 677, 682 (7th Cir. 2008)).
We discussed our suggested approach to the potential
admission of “cat’s paw” evidence in Staub and wrote that
a judge should make the threshold determination of
whether a reasonable jury could find singular influence.
560 F.3d at 658. Then, and only then, should the judge
“[a]llow[ ] the jury to entertain a cat’s paw theory and
decide whether there was singular influence.” Id. That
is the procedure the trial court followed here. The court
read and heard argument as to each party’s position
after Memorial filed its motion in limine, and the court
determined there was enough evidence to proceed to a
jury on this point. At trial, Memorial did not request
any jury instructions that concerned the decision maker
or the “cat’s paw” theory. There was an instruction
given without objection from Memorial that “Memorial
Hospital of Carbondale is a hospital corporation and can
only act through its officers and employees.” Bierman is
unquestionably a Memorial employee, and the record
does not reflect that Memorial requested any instructions
in an attempt to clarify the relevance of decision makers.
Cf. Staub, 560 F.3d at 657-58 (discussing instruction given
Nos. 07-2249, 07-2296 & 07-2297 19
to jury that set forth the cat’s paw theory).1 Thompson
actually requested an instruction on decision maker
status, but it was rejected. So despite the fact that Thomp-
1
The instruction in Staub, in stark contrast to the instruction
here, detailed the cat’s paw theory for the jury after stating
that the corporation could only act through its officers and
employees. (Note that we do not reproduce it as an ex-
ample of a model jury instruction, as we stated in Staub our
preference for a fact-driven instruction.) It said:
The Defendant is a corporation and can act only through
its officers and employees. Animosity of a coworker toward
the Plaintiff on the basis of Plaintiff’s military status as
a motivating factor may not be attributed to Defendant
unless that co-worker exercised such singular influence
over the decision maker that the co-worker was basically
the real decision maker. This influence may have been
exercised by concealing relevant information from or
feeding false information or selectively-chosen informa-
tion to the person or persons who made the decision to
discharge Plaintiff.
If the decision maker is not wholly dependent on a single
source of information but instead conducts its own inves-
tigation into the facts relevant to the decision, the
Defendant is not liable for a non-decision maker’s sub-
mission of misinformation or selectively chosen informa-
tion or failure to provide relevant information to the
decision maker. It does not matter that much of the infor-
mation has come from a single, potentially biased source,
so long as the decision maker does not artificially or by
virtue of her role in the company limit her investigation
to information from that source.
Staub, 560 F.3d at 657.
20 Nos. 07-2249, 07-2296 & 07-2297
son raised the issue by presenting such an instruction,
Memorial did not seek one itself. Cf. Fox v. Hayes, 600
F.3d 819, 838 (7th Cir. 2010) (finding defendants failed to
preserve objection to failure to give instruction where
defendants did not request one).
In any event, it is clear that a jury could have found
that Bierman gave Dr. Doolittle critical misinformation.
A jury also could have concluded that Dr. Doolittle’s
review was not “anything but independent” and that
Bierman exerted a singular influence over the probation
decision. Tim Brumley, the supervisor on duty when
Thompson failed to follow the protocol, told Bierman
that Thompson was not the only paramedic to fail to
follow the protocol. Although Bierman knew that infor-
mation was important to the discipline decision and
Dr. Doolittle specifically asked her whether any other
paramedics had failed to comply with it, she falsely told
him no one else had. Only Bierman spoke with Brumley;
Dr. Doolittle did not. Dr. Doolittle did not review the
reports of the paramedics’ runs; only Bierman did. She
told him that they showed no other failures of the
diabetic protocol, but the jury heard from another para-
medic who said she had not followed protocol, which
would have been reflected in the run reports. Dr. Doolittle
also did not review the paramedics’ tests. Only Bierman
did, and Thompson’s poor score on one became one of
the reasons for his probation even though Thompson
said all the other paramedics also did poorly, and Memo-
rial did not produce any evidence to the contrary. Rein-
forcing all this, Dr. Doolittle testified at trial that he
“absolutely” relied on Bierman for much of the informa-
tion that led to the probation decision.
Nos. 07-2249, 07-2296 & 07-2297 21
When the time came to discipline Thompson, Bierman
drafted the Report of Disciplinary Action on October 6,
signed it, and placed Dr. Doolittle’s initials on it. In
addition to drafting the report, Thompson testified that
during the October 6 meeting, Bierman, “as always,” was
“basically controlling the meeting” and did most of the
talking during it. He said Dr. Doolittle was “sitting there”
during the meeting and “seems not to know what’s going
on most of the time. I mean, not to sound terrible, but
he seems to let her run the show.” On October 8, Thomp-
son brought a witness with him to his scheduled
meeting with Bierman and Dr. Doolittle, and the jury
heard that when Bierman saw that Thompson had
brought a witness, she said “this meeting is over.” And
with that statement it was, even though Dr. Doolittle
had been asking questions. So the jury could have
drawn the inference that Bierman exerted a singular
influence over the decision to reduce Thompson to proba-
tionary status. Her racial animus was therefore admis-
sible, and we do not find the comments too temporally
attenuated for the jury to consider them.
With respect to Lence’s comments, Memorial argues
that any improper motive Lence had in compiling run
reports that showed Thompson was performing unsatis-
factorily was not relevant because Lence compiled
them after Thompson had been placed on probation. But
at trial, Memorial was the one to introduce the reports,
and the district court allowed Thompson to introduce
statements Lence had made to bear on the credibility of
the reports Lence had compiled. The jury heard testi-
mony that Lence had prepared some of the reports, and
22 Nos. 07-2249, 07-2296 & 07-2297
that some were not satisfactory. Thompson, on the other
hand, maintained that the unsatisfactory reports were
unmerited. The district court specifically instructed
the jury that the evidence “was being admitted for the
limited purpose of assisting you in determining the
credibility of the statements alleged to have been made
by Gerald Lence, specifically there are now in the
record these run reports that we heard about yesterday
where he assessed the performance of the plaintiff in
this case. I’m admitting this evidence that you just heard
for the limited purpose of determining whether those
reports are credible.” We find no abuse of discretion in
this ruling. See Fed. R. Evid. 806 (stating that when
hearsay statement admitted into evidence, credibility of
declarant may be attacked).
3. Materially Adverse Employment Action
Memorial also argues that Thompson did not suffer an
adverse employment action and that the district court
therefore should have granted its post-trial motion for
judgment as a matter of law that raised this issue. We
review the district court’s denial of a post-trial motion
for judgment as a matter of law de novo. Waters v. City
of Chicago, 580 F.3d 575, 580 (7th Cir. 2009).
“ ‘The idea behind requiring proof of an adverse em-
ployment action is simply that a statute which forbids
employment discrimination is not intended to reach
every bigoted act or gesture that a worker might en-
counter in the workplace.’ ” Phelan v. Cook County, 463
F.3d 773, 780 (7th Cir. 2006) (quoting Hunt v. City of
Nos. 07-2249, 07-2296 & 07-2297 23
Markham, Ill., 219 F.3d 649, 653 (7th Cir. 2000)). Memorial
argued in its motion for summary judgment that Thomp-
son had failed to demonstrate an adverse employ-
ment action, and the district court denied the motion
because it concluded genuine issues of material fact
prevented its grant. Despite that ruling, the next time
Memorial raised the adverse employment action issue
was in its post-trial motion for judgment as a matter of
law. Memorial did not argue to the jury that Thompson
had not suffered an adverse employment action and
maintained only that it had not acted because of his
race. It also had not argued the lack of an adverse em-
ployment action in its Rule 50(a) motion for judgment as
a matter of law.
Memorial failed to preserve this argument. Sometimes
whether an action is an adverse employment question is
clear as a matter of law, but “there are times where the
question is not so obvious” such that it is a question of
fact. Lewis v. City of Chicago Police Dep’t, 590 F.3d 427, 436
(7th Cir. 2009) (citing Seventh Circuit Pattern Jury Instruc-
tion § 3.01, Comment E, which notes that if a fact issue
arises as to whether the plaintiff suffered a materially
adverse employment action, “a court should modify the
instructions to provide the jury with guidance as to what
this term means”); see also, e.g., O’Neal v. City of Chicago,
588 F.3d 406, 409-10 (7th Cir. 2009) (issue of fact re-
garding adverse employment action where repetitive
reassignments would negatively affect opportunity for
promotion). Memorial did not raise this issue to the
jury. Nor did it request a jury instruction. Cf. Seventh
Circuit Pattern Jury Instruction 3.01(e) (providing a
24 Nos. 07-2249, 07-2296 & 07-2297
suggested jury instruction for when a fact issues arises as
to whether the plaintiff suffered a materially adverse
employment action); Republic Tobacco Co. v. N. Atl. Trading
Co., Inc., 381 F.3d 717, 733 (7th Cir. 2004) (finding defen-
dant waived argument that plaintiff needed to prove
actual malice by failing to propose a jury instruction
requiring such a finding or to object to court’s instruc-
tions). Also, Memorial did not raise this issue in its Rule
50(a) motion for judgment as a matter of law. The Rule
50(a) arguments raised Thompson’s failure to present
evidence of racial motivation and the lack of any
evidence of a similarly situated, white EMT that had
been treated more favorably. But it did not argue that
Thompson had not suffered an adverse employment
action. “ ‘Because the Rule 50(b) motion is only a renewal
of the preverdict motion, it can be granted only on
grounds advanced in the preverdict motion.’ ” Wallace v.
McGlothan, 606 F.3d 410, 418 (7th Cir. 2010); cf. Laborers’
Pension Fund v. A & C Envtl., Inc., 301 F.3d 768, 778 (7th
Cir. 2002) (reviewing issue even though not raised in
Rule 50(a) motion).
The adverse action here is not so inconsequential that
we will set aside the verdict. Cf. Shlahtichman v. 1-800
Contacts, Inc., 615 F.3d 794, 803 (7th Cir. 2010) (forfeiture
rarely overlooked in civil cases). Memorial acknowledges
in its brief that we have previously suggested that
placing an employee on probation might constitute
an adverse employment action. See Smart v. Ball State
Univ., 89 F.3d 437, 442 (7th Cir. 1996). It argues, however,
that this case is more analogous to Nichols v. S. Ill. Univ.-
Edwardsville, 510 F.3d 772, 786 (7th Cir. 2007), where we
Nos. 07-2249, 07-2296 & 07-2297 25
concluded that placing a plaintiff on paid administra-
tive leave pending the results of his fitness-for-duty
psychological examinations was not an adverse employ-
ment action. But the paid leave in Nichols was while
the employer awaited results; the closer analogy
to Nichols here would be if Thompson maintained that
the days while the hospital was deciding whether to
discipline him constituted an adverse employment
action. The probation Thompson received, in contrast to
the leave while waiting results in Nichols, was imposed
after the hospital decided to discipline him. During the
three months in which he was to be “reduced” to proba-
tionary status, Thompson was to work always under the
ever-watchful eye of a supervisor and could no longer
work independently. Bierman directed the paramedic
supervisors not to intervene unless absolutely neces-
sary, and that resulted in Thompson’s exposure to a
homeless man’s blood after a supervisor watching over
Thompson refused to help or let anyone else assist.
During his reduction to probationary status Thompson
was also required to inventory rigs, and to clean and wash
the floors of the ambulances, even the ones he had not
served on. Cf. Tart v. Ill. Power Co., 366 F.3d 461, 473
(7th Cir. 2004) (reversing conclusion that reassigned
positions not objectively inferior where employee previ-
ously worked independently and mostly indoors and
then worked mainly outdoors “under the hyper-vigilant
eye of a manager who told their new supervisors to
work them until they quit”). To be clear, we do not hold
that any imposition of a probationary period constitutes
an adverse employment action. In this case, though, where
26 Nos. 07-2249, 07-2296 & 07-2297
the district court ruled that whether there was an
adverse employment action was a question of fact, and
the hospital did not defend the case on this ground at
trial, we decline to set aside the verdict.
4. Remittitur
Although it did not suggest a damage figure to the jury
in the event it was found liable, Memorial argues that the
$500,000 verdict was too high and that remittitur is in
order. We review the district court’s decision not to
grant a remittitur for an abuse of discretion. Houskins v.
Sheahan, 549 F.3d 480, 496 (7th Cir. 2008). In our review,
we generally look at compensatory damage awards with
several considerations in mind: (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. Marion County Coroner’s
Office v. E.E.O.C., 612 F.3d 924, 931 (7th Cir. 2010). Memo-
rial argues that there is no rational connection between
the award and the evidence. It also maintains that the
award is not comparable to awards in similar cases.
We have upheld six-figure awards for nonpecuniary
loss even when the plaintiff did not seek professional
assistance. See, e.g., Deloughery v. City of Chicago, 422 F.3d
611, 621 (7th Cir. 2005) (upholding $175,000 award). Here,
though, the jury heard extensive testimony from Laura
Herzog, a licensed clinical professional counselor,
whom Thompson saw five times after he was placed
on probation. She testified that at Thompson’s first
Nos. 07-2249, 07-2296 & 07-2297 27
session in November 2003, he was sad and often tearful
in light of the tremendous stress from his job. He told
her that although he had been trying not to allow his co-
workers to see him stressed, he had been crying often
when he was at home, felt increasing anxiety and sadness,
and had gained 20 pounds in the past month. Herzog
diagnosed Thompson with adjustment disorder, depres-
sion, and anxiety, and she explained that an adjustment
disorder is the development of emotional or behavioral
symptoms in response to an identified stressor. When she
next saw him eight days later, he reported feeling more
symptoms of anxiety due to the pressure that he felt at
work. Herzog characterized Thompson’s symptoms as
“severe,” although he did not need to be hospitalized.
She further testified that when she saw him on Decem-
ber 4, he had taken leave from work due to his stress
and was improved. She saw him again a week later,
and she thought he seemed improved in part because
he was not at work.
Also on December 11, Herzog drafted a treatment
plan for Thompson. She rated the stress he was experi-
encing at level four, the highest level. The plan identified
that Thompson was experiencing anxiety and depression
due to the stress he was having at work and worry that
he would lose his job. She thought that he was doing
well in therapy and had a high probability of achieving
his treatment goals. Herzog saw him again at the end of
December, where he was again improved and had not
returned to work. Herzog testified that if Thompson
went back to his work and continued to be on probation,
in her opinion, it would be difficult for him and she
28 Nos. 07-2249, 07-2296 & 07-2297
was not sure whether he would be able to cope with
that stress. Herzog did not see him further as he no
longer had insurance to pay for further sessions.
In addition to Herzog’s testimony, Thompson testified
at length about the effects the probation had on him.
His testimony reflected that the probation not only
affected him emotionally, but also that he believed he
and other patients had been put in physical danger
while he was on probation. For example, Thompson
described a call during which Lence supervised him
while Thompson was reduced to probationary status.
Thompson testified that he responded to an emergency
call and found a homeless man lying on the ground
with a significant amount of blood coming out of his
head. Thompson was the first person to the man. Con-
cerned that the man could have a spine or back injury,
he began to stabilize him. Rather than help Thompson
or allow the other paramedic present to assist, Lence
ordered the paramedic to go back to the ambulance
for inconsequential things. Two policemen were right
there with rubber gloves on ready to assist as well, but
Thompson testified that Lence would not let them.
When the man started to come to, he began grinding his
bleeding laceration into Thompson’s arm. Lence
saw this, but he still would not help or let anyone help
Thompson. This episode was jarring to Thompson.
He was concerned about his own exposure to the man’s
blood. And he testified that it was “horrendous” to him
that Lence knew what was going on and would not
let anyone else help, and that those actions “absolutely”
caused the patient to be at greater risk.
Nos. 07-2249, 07-2296 & 07-2297 29
Thompson told the jury that while he was being super-
vised, Lence and another supervisor put his patients’
safety at risk multiple times, interrupted and interceded
in calls, and delayed patient care. Thompson also
testified that Lence directed him to write reports on
two patients that he had not even seen, a violation
of protocol, despite his protest. Thompson testified that
he sought counseling because his work situation was
tearing him up and tearing his family up, and he
described it as “unbearable.” He testified that it was
“like a designed hell for me to have to go through this,
to be treated this way, and then see the public be
treated this way. To see these patients hurt.” And he
testified that he felt it was a designed campaign against
him to push him to quit.
Memorial points us to awards in other cases and main-
tains that they demonstrate that Thompson’s award is
excessive. We do look at other awards; “[o]ur responsi-
bility, however, is not to fit this case into a perfect contin-
uum of past harms and past awards. Rather, our role
in reviewing awards for abuse of discretion is to deter-
mine if the award in this case was roughly comparable
to similar cases, such that the instant award was not so
beyond the pale as to constitute an abuse of discretion.”
Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558,
567 (7th Cir. 2006). Memorial points, for example, to our
decision in Avitia v. Metro. Club of Chicago, Inc., 49 F.3d
1219, 1229-30 (7th Cir. 1995), where we deemed a $21,000
award for emotional distress damages “too much” and
concluded that a remittitur of half the award was neces-
sary. However, the testimony from the plaintiffs in
30 Nos. 07-2249, 07-2296 & 07-2297
Avitia and Marion County, 612 F.3d at 631, was very
brief. In contrast, we upheld a remittitur to $175,000 in
Deloughery v. City of Chicago, 422 F.3d 611, 615 (7th Cir.
2005), where the plaintiff did not seek professional
help after she did not receive a promotion but testified
to her devastation at not being promoted, described
obstacles she had overcome in her life, and explained
the impact of the decision on herself and her family.
In addition to the testimony from Thompson and his
counselor about the emotional impact of the probation,
Thompson’s testimony included a physical element, as
he was concerned for his safety and that of his patients.
In that regard this case draws some parallel to cases
such as Farfaras, where we upheld an award of $200,000
where a plaintiff was touched and cornered, among other
inappropriate actions. Farfaras, 433 F.3d at 566. The jury
also could have thought that Thompson was treated
poorly in an attempt to have him quit. See Neem v.
McKesson Drug Co., 444 F.3d 593, 612 (7th Cir. 2006) (af-
firming a $240,000 damage award under Illinois state
law, where the plaintiff’s supervisor had forced her to
climb a metal stairway to hook up computer equipment
during her complicated pregnancy, sabotaging her com-
puter to deny her access and alter her files, and increased
her work knowing she would not be able to meet the
deadlines).
We review the award under an abuse of discretion
standard of review, and the district court heard all the
testimony and declined Memorial’s request for a
remittitur. The jury and district court heard extensive
Nos. 07-2249, 07-2296 & 07-2297 31
testimony from Thompson and his counselor, and his
counselor testified that she diagnosed Thompson with
an adjustment disorder with depression and anxiety. The
jury and judge heard that Thompson only discontinued
treatment because he no longer had insurance coverage.
They also heard that Thompson was exposed to blood
from an injured homeless man and was forced to partici-
pate in and witness incidents where he felt patients
who needed emergency assistance were being injured
even further by paramedics. Nonetheless, w e conclude
that the $500,000 award is excessive in this case in light
of the circumstances, including that Thompson was
placed on probation with no change to his compensation
and the nature of Thompson’s emotional distress, which
although not to be discounted, does not warrant a half-
million dollar award. A remittitur to $250,000 will keep
this award within rational bounds and in line with other
cases. If Thompson does not agree to the remittitur, he
will receive a new hearing on this issue. See Marion
County, 612 F.3d at 931.
III. CONCLUSION
The judgment of the district court is A FFIRMED, except
with respect to the compensatory damages award, which
is V ACATED . We R EMAND this case for further pro-
ceedings consistent with this opinion.
11-3-10