In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3069
DIANA W. HAYES,
Plaintiff-Appellant,
v.
JOHN E. POTTER, POSTMASTER GENERAL
OF THE UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 99-C-904—Sidney I. Schenkier, Magistrate Judge.
____________
ARGUED JUNE 5, 2002—DECIDED NOVEMBER 13, 2002
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Before FLAUM, Chief Judge, and DIANE P. WOOD and
WILLIAMS, Circuit Judges.
DIANE P. WOOD, Circuit Judge. Diana Hayes works for
the United States Postal Service. She initiated this action
against her employer, claiming that it violated her rights
under the Rehabilitation Act of 1973, 29 U.S.C. § 791, and
that it retaliated against her in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The case
proceeded to trial. At the close of all the evidence, the dis-
trict court granted the Postal Service’s motion for judgment
as a matter of law on the Rehabilitation Act claim. The
2 No. 01-3069
Title VII retaliation claim went to the jury, but the jury
also found in favor of the Postal Service. Hayes filed a mo-
tion for a new trial on the retaliation claim under FED. R.
CIV. P. 59. The district court denied the motion, and Hayes
now appeals only from that ruling.
I
There was a full trial on Hayes’s retaliation claim. This
has important consequences for Hayes’s appeal, because it
means that she faces a difficult standard of review. Al-
though we will look at the entire record, the only question
we may consider is whether the district court abused its
discretion in its decision to deny the Rule 59 motion. See,
e.g., Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914,
921 (7th Cir. 2002); Harris v. City of Chicago, 266 F.3d 750,
753 (7th Cir. 2001). We do not re-weigh the evidence; in-
stead, we must view the record in the light most favorable
to the prevailing party, here, the Postal Service. Research
Sys. Corp., 276 F.3d at 921.
Hayes worked at the mail distribution warehouse in
Bedford Park, Illinois. Her position required her to sort and
distribute letters into mail slots. She was assigned to Tour
3, a shift that ordinarily began around 5:30 p.m. and ended
at 2:00 a.m. There are two other shifts in the Postal Ser-
vice. Tour 1 begins around 11:00 p.m. and ends between
7:00 and 8:00 a.m., while Tour 2, the most coveted shift, be-
gins at 7:00 a.m. and ends at 3:00 p.m. All Postal Service
employees receive two days off each week, not necessarily
on the weekend; Hayes’s official days off were Saturday and
Sunday.
In 1995, Hayes filed charges in which she claimed that
her supervisor, Jerry Cubic, had discriminated against her.
That case proceeded to trial in 1997 and continued until
Hayes became ill and required heart surgery. At that point,
No. 01-3069 3
her lawsuit was dismissed without prejudice because she
was unable to attend the rest of the trial.
Following her surgery, the Postal Service approved med-
ical leave for Hayes for the period between February and
April 1997. On April 7, Hayes returned to work, after both
Dr. Patrick O’Leary, her personal doctor, and Dr. Anthony
Bilotta, a contract doctor for the Postal Service, gave their
approval. She was placed on Tour 3 and was instructed to
report to Juanita Smallwood, the manager of distribution
operations. In late April and again in May 1997, Hayes
asked Smallwood to change her hours from a shift begin-
ning at 5:30 p.m. to an earlier shift. Eventually, hoping to
support that request, she submitted a letter from Dr.
O’Leary stating that Hayes was to work “light duty, 6 hours
only, must start work by 8:00 a.m.” Smallwood disapproved
this request, explaining that the doctor’s statement did not
explain why her medical condition required any changes.
Nonetheless, in an effort to accommodate Hayes, Smallwood
permitted her to begin work at 3:00 p.m and end at 9:00
p.m.
During this period, Hayes filed a series of Equal Employ-
ment Opportunity (EEO) complaints, naming several em-
ployees and managers including Smallwood. On June 3,
1997, Hayes wrote a letter to Smallwood complaining that
Smallwood’s decision to deny her request for temporary
light duty on Tour 2 was “discriminating and retaliatory”
and motivated by Hayes’s EEO grievance and union
activity. Hayes also asserted that a 3:00 p.m. start time was
against her “doctor’s prescribed restrictions.” The letter
reflected that it was copied to Celestine Green, the Plant
Manager, along with Ruby Tarver and Todd Hawkins, both
Postal Service managers. On June 28, Hayes wrote another
letter accusing Smallwood of retaliation, harassment, and
discrimination. She addressed this letter to Green and
again copied Smallwood, Hawkins, and Tarver.
4 No. 01-3069
Hayes responded to her lack of success in securing the
desirable 8:00 a.m. start time by stopping coming to work
altogether; this meant that she was Absent Without Official
Leave (as in the military, AWOL) from most of May
through the beginning of August 1997. In August, Hayes
again asked for a change in start time, this time submitting
a Postal Service light duty request form completed by her
doctor that stated Hayes needed a daytime, five-hour
schedule. Smallwood eventually agreed to give Hayes tem-
porary light duty, with an 8:00 a.m. start time. This posi-
tion lasted until the end of March 1998. Hayes was then
ordered to report back to her official Tour 3 assignment.
In protest, Hayes again was AWOL from the end of
March until the end of May 1998. On May 2, Hayes initi-
ated the request that led directly to this lawsuit. She wrote
to Green requesting a permanent light duty assignment on
Tour 2. Her doctor also sent a letter to Green, stating that
nighttime sleeping hours could help with Hayes’s recupera-
tion and that her medication caused drowsiness. Nurse
Administrator Lillie Yancey responded to Hayes’s applica-
tion with her own request for additional information, in-
cluding medical records. Hayes’s doctor provided her rec-
ords as well as a letter that stated she should not lift over
20 pounds and she had to keep reaching above her shoul-
ders to a minimum. On August 20, Green denied Hayes’s
request for a permanent change in work hours after con-
sulting with several administrators because Hayes’s “doc-
tor’s letter did not request a change of tour,” and the “lim-
itations and prescribed medications do not warrant a
change of tour.”
Hayes asked the Postal Service to reconsider its decision
on August 25, 1998, stating that she disagreed with its in-
terpretation of her doctor’s letter. Three days later, James
Malone, the union president, also wrote a letter in support
of Hayes’s request. Green agreed temporarily to postpone
a final decision while a Postal Service contract doctor re-
No. 01-3069 5
viewed Hayes’s medical records. After receiving information
from Dr. Sherri Phillips, Green wrote Malone denying
Hayes’s request on September 2, 1998. The following day,
after speaking with Hayes’s personal doctor, Dr. Phillips
sent a letter to Green, recommending that the Postal Ser-
vice honor her physician’s request.
On October 2, Hayes and Malone sent a letter to Green
asking what action the Postal Service intended to take in
response to Dr. Phillips’s most recent letter. To clear up
what the Postal Service viewed as an inconsistency, it
instructed Hayes to report to a fitness-for-duty examination
with Dr. Bilotta. After a routine physical examination, Dr.
Bilotta found that Hayes had high blood pressure and re-
ferred Hayes to Dr. Leonard Kessler for psychological coun-
seling to determine whether Hayes needed a permanent
light duty assignment due to anxiety and stress. After Dr.
Kessler met with Hayes and reviewed reports from Dr.
O’Leary and Dr. Bilotta, he found that Hayes did not have
a psychiatric illness. Dr. Phillips passed along the word to
the Postal Service that Hayes did not have a psychiatric
illness severe enough to interfere with her work functions.
In the end, Green denied Hayes’s request for reconsidera-
tion stating that she relied on Dr. Phillips’s medical
expertise.
At trial Hayes argued to the jury that the Postal Service
managers had denied her requests for permanent and tem-
porary light duty because of her repeated EEO complaints
and her prior discrimination suit. In addition to Green, she
accused Yancey, Dr. Phillips, Fizer, the Postal Police, and
Smallwood (among others) of discrimination. At least six of
the EEO complaints named Green specifically, and it was
Green’s awareness of these complaints that was eventually
a central issue, given the fact that Green was the person
who ultimately denied the request for a permanent change
of working hours. Green herself testified at trial that she
had no recollection of Hayes’s complaints.
6 No. 01-3069
At the close of evidence, the Postal Service orally moved
pursuant to Rule 50(a) of the Federal Rules of Civil Proce-
dure for judgment as a matter of law on both of Hayes’s
claims. As we noted before, the district court granted the
motion with respect to the disability discrimination claim,
but it sent the retaliation case to the jury. The verdict form
submitted four questions to the jury. Question One asked
the jury if it found that Hayes had “proved by a preponder-
ance of the evidence that she had made a claim of discrimi-
nation or had engaged in other protected activity prior to
the time the defendant Service denied her requests for
accommodation.” The jury responded yes to that question
and continued on to Question Two, which asked whether
Hayes had proved that the “managerial employees of the
defendant had knowledge of her prior claims of discrimina-
tion at the time they acted on her requests for permanent
light duty work on Tour II with weekends off?” The jury
responded no, and was instructed that this meant that it
found in favor of the Postal Service on the retaliation claim.
Hayes filed a motion for a new trial pursuant to Rule 59
of the Federal Rules of Civil Procedure, arguing that the
verdict was against the weight of the evidence; the district
court denied the motion.
II
Hayes cannot prevail on this appeal just by showing that
there was evidence that the jury might have believed that
would have supported a finding that the relevant manage-
rial employees knew about her prior claims of discrimina-
tion. She must show instead that the district court abused
its discretion in concluding that a rational jury could have
found in favor of the Postal Service. At trial Hayes tried to
meet her burden by introducing into evidence the letters
she sent to Green, along with EEO complaints that specifi-
cally named Green. She argues that managerial employees
No. 01-3069 7
and Green in particular must have known about her dis-
crimination complaints when they denied her requests for
permanent light duty and thus that the jury’s response to
Question Two is not supported by the record. She also
maintains that Green’s testimony did not refute the paper
trail of letters and EEO complaints.
We will generally presume timely delivery of properly
addressed mail, Bobbitt v. Freeman Co., 268 F.3d 535, 538
(7th Cir. 2001), but in a retaliation case, it is not enough
that the decisionmaker should have known about a discrim-
ination complaint; the decisionmaker must have had actual
knowledge of the complaint for her decision to be retalia-
tory. Maarauf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th
Cir. 2000).
On this record, we cannot say that the evidence compelled
the conclusion that Green had the requisite actual knowl-
edge about Hayes’s complaints. Green was responsible for
over 3,000 employees, 1300 at Hayes’s site alone, and a
reasonable jury could have believed that nothing stood out
about Hayes’s barrage of EEO complaints and letters.
Moreover, Hayes failed to offer specific evidence to refute
the Postal Service’s theory that Green had no knowledge of
Hayes’s complaints. The problem was not that Hayes lacked
the opportunity to introduce such evidence. In fact, the
lawyer for the Postal Service specifically questioned Green
about her knowledge of Hayes’s complaints:
Q. And Diana Hayes was one of the 1300 employees at
the Bedford Park facility back in 1998, is that correct?
A. Right.
Q. Were you—or did you know who Diana Hayes was
back in 1998?
A. I probably did.
Q. Were you aware that based upon your decisions
that you made in this case that Miss Hayes filed EEO
8 No. 01-3069
complaints against you for discrimination based upon
her race and her gender?
A. I don’t recall it specifically. I really don’t.
Q. Were you aware, though, that she alleged that your
decisions that you made in this case were based upon
discriminating against her because she was African
American and because she was female?
A. I’m sorry. I really don’t recall it.
These were the only questions that specifically addressed
what Green knew regarding the EEO complaints, and they
came on cross-examination by the Postal Service. On
redirect, Hayes’s attorney did not raise the subject. There
were several facts Hayes conceivably could have placed
before the jury that might have made a finding that Green
was unaware of the complaints against the weight of the
evidence. For example, Hayes could have called the EEO
inspectors to testify whether a very senior manager such as
Green would always be personally notified every time she
is named in an EEO charge. Hayes’s attorney could have
also asked Green whether she ordinarily is notified about
EEO charges, or at least had her describe her mail receipt
process. The EEO investigators might have had documenta-
tion showing that they met personally with Green to dis-
cuss the charges. Whether Green opened her own mail, or
personally reviewed any discrimination charges are all
relevant questions that could have been raised. It was up to
Hayes to get this evidence into the record; as the plaintiff
she had the burden of proof. St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 507-08 (1993). Based on testimony that
made it into the record, however, the jury was not required
to find that Hayes stood out among Green’s thousands of
employees or that Green was personally notified when
Hayes filed the EEO charges. True, the jury could have
inferred from Smallwood’s testimony that Green was aware
of Hayes’s EEO complaints or that Green similarly was
No. 01-3069 9
notified; but the jury did not make that inference and we
cannot conclude that it was compelled to do so.
We also reject Hayes’s argument that there is a rule
according to which, when documents and witness testimony
conflict, the jury must consider only the documents. There
is no such rule. Moreover, the cases on which Hayes relies
to support her argument, Kidd v. Illinois State Police, 167
F.3d 1084, 1100 (7th Cir. 1999); Sachs v. Ohio Life Ins. Co.,
148 F.2d 128, 131 (7th Cir. 1945); Vallarta v. Lee Optical of
Missouri, 298 N.E.2d 212, 215 (Ill. App. 1973), are not even
jury cases, but instead are bench trial cases. Although it is
not particularly important, the documents to which Hayes
refers us did not plainly contradict Green’s testimony that
she did not recall anything about complaints from Hayes.
As we already noted, the jury could have believed that
Green did not keep track of the EEO complaints from over
3,000 employees. Finally, there is no evidence that any
manager other than Green had the power to act on Hayes’s
request for a new permanent job assignment; thus, the fact
that other managers may have been aware of Green’s
complaints is immaterial, as they had no ability to act on
her request.
III
Although a jury could have found in favor of Hayes, it did
not. Hayes has not shown that the district court abused its
discretion in concluding that the jury’s verdict was not
against the manifest weight of the evidence. We AFFIRM the
judgment of the district court.
10 No. 01-3069
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-02