In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2657 & 04-2876
DOLORES DELOUGHERY,
Plaintiff-Appellee,
v.
CITY OF CHICAGO,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2722—Matthew F. Kennelly, Judge.
____________
ARGUED JUNE 1, 2005—DECIDED SEPTEMBER 7, 2005
____________
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Dolores Deloughery brought this
action against her employer, the City of Chicago (“the
City”), after the City failed to promote her to the rank of
captain within the Chicago Police Department (“CPD”). Ms.
Deloughery contended that the City had retaliated against
her, in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., for exercising rights protected
under Title VII and the First Amendment, see 42 U.S.C. §
1983. The jury returned a verdict for Ms. Deloughery on the
Title VII claim but against her on the First Amendment
claim. The jury awarded Ms. Deloughery damages, includ-
2 Nos. 04-2657 & 04-2876
ing $250,000 for emotional distress. On the City’s motion,
the district court reduced the compensatory damages to
$175,000; however, the court declined to grant a new trial on
damages. For the reasons set forth in the following opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
Ms. Deloughery, who is Hispanic, was hired by CPD in
1982. In 1995, she attained the rank of lieutenant. Following
her promotion to lieutenant, Ms. Deloughery was assigned
to work with CPD’s community policing program. She did
this work in a position at the police training academy and
was assigned additional responsibilities at the academy as
time passed.
In 1998, Ms. Deloughery was accused of having interfered
in the physical fitness tests being completed by her sister
who was applying to work for CPD. After the incident, she
was moved from her position at the academy to a position
as a lieutenant in the 18th district. Later, she was reassigned
to be commanding officer of Area 5 youth investigations. In
February 2000, Ms. Deloughery was transferred from her
position as commanding officer for Area 5 youth back to a
patrol position.
Later in 2000, Ms. Deloughery filed an internal complaint
of sex and national origin discrimination (the “internal
complaint”). Still later in 2000, Ms. Deloughery filed charges
of discrimination (the “2000 IDHR charges”) with the
Illinois Department of Human Rights (“IDHR”) and the
Equal Employment Opportunity Commission (“EEOC”).
She claimed that her February 2000 transfer to a patrol
Nos. 04-2657 & 04-2876 3
position resulted from sex and national origin discrimina-
tion. She also claimed that CPD had retaliated against her
for filing the internal complaint by continuing to refuse to
promote her.
Throughout most of her employment with CPD, Ms.
Deloughery was a board member of the Chicago Police
Women’s Association (“CPWA”), a group organized to
voice the concerns of women working within the CPD. In
1998 and 1999, CPWA board members, including Ms.
Deloughery, met with CPD Superintendent Terry Hillard.
During both meetings, Ms. Deloughery’s role was to bring
up the lack of women in the upper ranks of the CPD. Also
in 1999, she and others approached Hillard to inform him
that some CPWA members believed that they were being
penalized for participating in the group. CPWA members
had meetings with Hillard after Ms. Deloughery filed the
internal complaint and the 2000 IDHR charges, but she did
not participate in those meetings.
In July 2000, CPD announced that it would accept applica-
tions from lieutenants for promotion to captain; Ms.
Deloughery submitted an application. In the written
component of her application, Ms. Deloughery emphasized
her leadership in the CPWA. Applicants for the captain
position also underwent a series of interviews with CPD
district commanders.
After interviewing candidates, the district commanders
each submitted to Hillard a list ranking candidates accord-
ing to their suitability for promotion. Hillard, however, was
free to exercise full discretion with respect to promotions,
without being constrained by the district commanders’
recommendations. Hillard testified that he made promotion
decisions based on the candidates’ applications, the candi-
dates’ employment files, the district commanders’ lists and
his own personal knowledge of the candidates. He claimed
4 Nos. 04-2657 & 04-2876
to be unaware of Ms. Deloughery’s internal complaint and
her 2000 IDHR charges when he made the promotion
decisions.
In December 2000, CPD promoted thirty-three candidates
to captain. In January 2001, CPD promoted thirty-five more
candidates to captain. Ms. Deloughery was not promoted in
either group. After the CPD made the first two rounds of
promotions, Ms. Deloughery filed charges with IDHR and
EEOC claiming that she had been subject to retaliation.
Marie Johnston, another CPD employee who was not
promoted to captain, also filed charges making the same
allegation as Ms. Deloughery.
B. District Court Proceedings
After securing a right to sue letter from the EEOC, Ms.
Deloughery and Johnston filed this action. Because the
City’s appeal concerns only Ms. Deloughery’s claims, we
have focused on Ms. Deloughery and shall refer to Johnston
only when necessary.
Ms. Deloughery’s first amended complaint alleged two
1
counts. Count I (the “Title VII claim”) alleged that the
City’s failure to promote her to captain constituted retalia-
tion for filing charges of discrimination and for speaking out
against discrimination within CPD, in violation of Title VII.
See 42 U.S.C. § 2000e-3(a). Count II (the “First Amendment
claim”) alleged that the City had violated Ms. Deloughery’s
rights under the First Amendment when Hillard failed to
promote her in retaliation for her activities opposing
discrimination. See 42 U.S.C. § 1983.
1
Johnston’s complaint contained the same two counts.
Nos. 04-2657 & 04-2876 5
The case was tried to a jury. Ms. Deloughery testified that
she was “devastated” by not being promoted to captain.
Tr.II at 152. For instance, she claimed that she “fell down”
when she learned that she was not among the first group to
be promoted. Id. at 148. Ms. Deloughery also stated:
[I]t is almost like learning that there is no Santa Clause
[sic] anymore. . . . I thought if you worked hard and did
the right thing and tried to improve the department and
give back and mentor and all of that, that you would be
rewarded with continuous promotion. And I based it on
the fact that I had steadily moved up in my career.
Now, all of a sudden, I wasn’t good enough to be
promoted.
Id. at 152-53.
Ms. Deloughery also testified about the obstacles that she
had overcome in her life: “It was kind of tough growing up
[as one of eleven children], and I was very proud of the fact
that I was able to finish college . . . . [My family] knew how
much I had put of myself into this job in spite of the fact that
I had children . . . .” Id. at 152. She also testified that the
events were “hard on” her parents, including her father, “a
retired police officer with failing health.” Id. Ms.
Deloughery admitted that she had never sought the help of
a psychiatrist, psychologist or other mental health profes-
sional for treatment of the distress she experienced as a
result of not being promoted. Id. at 166.
Sergeant Deborah Pascua, who had worked with Ms.
Deloughery in CPWA, testified that not being promoted to
captain had had “a demoralizing impact” on Ms.
Deloughery. Id. at 244. Sgt. Pascua also testified that, at the
time the CPD made the promotion decisions, Ms.
Deloughery “had small children, and she was changed
numerous places, numerous shifts, and she had a lot—she
6 Nos. 04-2657 & 04-2876
was going through a divorce. So she had major child care
issues to deal with, with this changing.” Id.
At the close of the evidence, the trial court instructed the
jury as follows:
You must give separate consideration to each plaintiff
and each of her claims.
First, each of the plaintiffs contends that her em-
ployer, the City of Chicago, acting through defendant
Hillard, retaliated against them for filing charges with
the [EEOC] and the [IDHR] and/or for complaining
about and opposing discrimination within the [CPD].
Second, each of the plaintiffs contends that defendant
Hillard denied her promotion to the position of captain
in retaliation for exercising her free speech rights.
....
To prevail on her first claim, the particular plaintiff
whose claim you are considering must prove . . . that
the City of Chicago determined not to promote her to
captain in retaliation for filing charges with the [EEOC]
and the [IDHR] and/or for complaining about and
opposing discrimination within the [CPD].
To decide this question, you must determine whether
the City would have promoted the plaintiff if she had
not filed charges or complained about discrimination
but everything else was the same.
On the second claim—that is the claim against Mr.
Hillard for denial of free speech rights, retaliation for
exercising free speech rights. On the second claim, the
particular plaintiff whose claim you are considering
must prove . . . that her exercise of her right of free
speech was a substantial or motivating factor in
Nos. 04-2657 & 04-2876 7
Hillard’s decision not to promote the plaintiff to cap-
tain. If the plaintiff proves this, she must prevail on this
claim unless Hillard proves . . . that he would have
taken the same action even in the absence of the plain-
tiff’s exercise of her right of free speech. . . .
It is undisputed that activity in opposing discrimina-
tion of [sic] public employment is protected by the
constitutional right of free speech.
Tr.IV at 596-98.
The jury returned a verdict for Ms. Deloughery on the
Title VII claim and found against her on the First Amend-
ment claim. The jury also awarded Ms. Deloughery dam-
ages in the following amounts: $18,000 in back pay; $282,000
in front pay; and $250,000 in compensatory damages for
2
mental and emotional suffering.
After trial, the City moved for judgment as a matter of
law, claiming that the jury had returned inconsistent
verdicts. The district court denied the motion on the ground
that judgment as a matter of law is not the appropriate
remedy for alleged inconsistent jury verdicts. See Gordon v.
Degelmann, 29 F.3d 295, 298 (7th Cir. 1994) (“There is no
priority among inconsistent verdicts.”).
Later, the City filed a motion for a new trial, again
asserting that the jury had returned inconsistent verdicts on
Ms. Deloughery’s claims, and for remittitur, claiming that
the award of compensatory damages was excessive. The
district court denied the motion for a new trial on the
ground that the jury’s verdicts on Ms. Deloughery’s claims
were not inconsistent. The district court observed that its
2
The jury also returned verdicts against Johnston on both her
Title VII and her First Amendment claim.
8 Nos. 04-2657 & 04-2876
instructions to the jury on the Title VII claim permitted the
jury to find for Ms. Deloughery
if it found the City had retaliated against her for filing
charges with the [EEOC] and the [IDHR], and/or for
complaining about and opposing discrimination within
the [CPD]. . . . By contrast, the instructions on the § 1983
[First Amendment] claim required a finding that
Deloughery’s exercise of her free speech rights was a
substantial or motivating factor in Hillard’s decision not
to promote her . . . .
R.121 at 3 (emphasis in original).
On the other hand, the district court reasoned, “the
instructions on the [First Amendment] claim did not permit,
or at least did not appear to the jury to permit, a verdict in
Deloughery’s favor on that claim based on retaliation for
filing [EEOC] and IDHR charges.” Id. at 4. The district court
concluded that the jury rationally could have found for Ms.
Deloughery on the Title VII claim and against her on the
First Amendment claim.
Turning to the City’s claim that the jury’s award of
$250,000 for emotional distress was excessive, the court
relied extensively on Tullis v. Townley Engineering & Manu-
facturing Co., Inc., 243 F.3d 1058 (7th Cir. 2001). The court
noted that “it is within the jury’s domain to assess the
credibility of witnesses,” id. at 1069, and that “[a]n award
for nonpecuniary loss can be supported, in certain circum-
stances, solely by a plaintiff’s testimony about his or her
emotional distress,” id. at 1068. Based on these principles,
the court concluded that it was not unreasonable for the jury
to have been convinced that Ms. Deloughery suffered
emotional distress, despite the fact that she had never
sought professional help for her distress and the fact that
she had “kept a stiff upper lip when on the job after her
Nos. 04-2657 & 04-2876 9
promotion was turned down.” R.121 at 6. Therefore, the
court concluded that some measure of compensatory
damages for emotional distress was warranted.
The court observed that the real question in the case was
whether the jury had awarded an appropriate amount of
damages. Relying on Webb v. City of Chester, 813 F.2d 824,
836 (7th Cir. 1986), which reviewed awards in other employ-
ment discrimination cases, the court determined that the
current dollar value of the high award amounts approved
in Webb would be $50,000 to $100,000. R.121 at 11. The court
also noted that it felt obligated to follow dictum from Neal
v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999): “Had [the
plaintiff] merely lost her job as a result of the discrimina-
tion, we would think $200,000 excessive, even though [the
plaintiff] suffered ostracism, a year-long depression, and
upheaval in her life.”
Ultimately, in light of these cases, the court concluded that
“a rational connection between the $250,000 award and the
evidence in this case [was] lacking.” R.121 at 12. Therefore,
the court proposed that it would grant the City’s motion for
a new trial on the issue of damages unless Ms. Deloughery
accepted remitted compensatory damages of $175,000. The
court noted that $175,000 was “an amount . . . well within
the range of reasonableness given the particular circum-
stances of this case.” Id. Ms. Deloughery accepted the
remitted damages award, and, accordingly, the district
court denied the City’s motion for a new trial on damages.
Ms. Deloughery also filed a motion for equitable relief in
the form of promotion to captain. The district court granted
Ms. Deloughery’s motion for equitable relief and ordered
the City to promote her to captain within 120 days. The
district court later granted Ms. Deloughery’s motion for
attorneys’ fees and costs.
10 Nos. 04-2657 & 04-2876
II
DISCUSSION
A. Standard of Review
This court reviews a district court’s denial of a post-trial
motion for a new trial according to an abuse of discretion
standard. See American Nat’l Bank & Trust Co. of Chicago v.
Reg’l Transp. Auth., 125 F.3d 420, 431 (7th Cir. 1997). We also
review a district court’s remittitur for abuse of discretion.
See David v. Caterpillar, Inc., 324 F.3d 851, 864 (7th Cir. 2003).
B. New Trial Based on Inconsistent Jury Verdicts
The City contends that there is no way to reconcile the
jury’s verdicts in this case and, consequently, submits that
the district court abused its discretion by denying the City’s
motion for a new trial. The crux of the City’s claim is that,
given the district court’s instructions to the jury, it was
impossible for the jury to have acted rationally and to have
found for Ms. Deloughery on the Title VII claim but against
her on the First Amendment claim.
“As a rule civil juries must return consistent verdicts.”
Will v. Comprehensive Accounting Corp., 776 F.2d 665, 677 (7th
Cir. 1985). If possible, this court must reconcile apparently
inconsistent verdicts, rather than overturn them. See Ameri-
can Nat’l Bank, 125 F.3d at 431. A party claiming that
inconsistent verdicts have been returned is not entitled to a
new trial “unless no rational jury could have brought back”
3
the verdicts that were returned. Will, 776 F.2d at 678. A new
3
This court has found inconsistent verdicts, for instance, where
a jury returned special verdicts finding that “the filing of age
discrimination charges was a determining cause for [the plain-
(continued...)
Nos. 04-2657 & 04-2876 11
trial on all claims is the appropriate remedy (rather than
judgment as a matter of law) in a case in which the jury has
returned inconsistent verdicts. See Gordon, 29 F.3d at 298-99.
In determining whether the jury’s verdicts could be
reconciled, the district court looked closely at its own
instructions. With respect to Ms. Deloughery’s Title VII
claim, the district court instructed the jury that it should
find for Ms. Deloughery if she proved that the City decided
not to promote her “in retaliation for filing charges with the
[EEOC] and the [IDHR] and/or for complaining about and
opposing discrimination within the Chicago Police Depart-
ment.” Tr.IV at 597. With respect to Ms. Deloughery’s First
Amendment claim, the district court instructed the jury that
it should find for Ms. Deloughery if she proved that “her
exercise of her right of free speech was a substantial or
motivating factor in Hillard’s decision not to promote the
plaintiff to captain.” Id. The district court further instructed
the jury “that activity in opposing discrimination . . . is
protected by the constitutional right of free speech.” Id. at
598.
We believe that the district court did not abuse its discre-
tion in concluding that the jury’s verdicts in this case can be
reconciled. As the district court pointed out, the jury could
have found for Ms. Deloughery on the Title VII claim by
accepting her contention that CPD had retaliated against her
for filing charges with the EEOC and IDHR, while still
3
(...continued)
tiff’s] discharge” but also finding that the defendant did not
“’willfully’ violate[] the age discrimination law when it dis-
charged plaintiff.” Rose v. Hearst Magazines Div., The Hearst Corp.,
814 F.2d 491, 493 (7th Cir. 1987). It was inconsistent to find
retaliation as well as nonwillfulness because a jury finding of
retaliatory discharge necessarily also finds willfulness. Id.
12 Nos. 04-2657 & 04-2876
rejecting her allegation that she had not been promoted in
retaliation for her “opposi[tion] to discrimination” within
CPD. Having rejected the idea that CPD retaliated against
Ms. Deloughery for her activity opposing discrimination,
the jury also could have concluded—because “activity in
opposing discrimination” was described as being “protected
by the . . . right of free speech”—that Ms. Deloughery’s free
speech activities were not a motivating factor in the decision
not to promote her.
To have found as we have just described, the jury would
have had to understand the practice of “filing charges with
the [EEOC] and the [IDHR]” as falling outside the class of
“activit[ies] . . . opposing discrimination in public employ-
ment.” This understanding is entirely consistent with the
district court’s instructions. Read in conjunction with its
instruction “that activity in opposing discrimination . . . is
protected by the constitutional right of free speech,” the
district court’s instruction on the Title VII claim—which
phrased “filing charges . . . and/or . . . opposing discrimina-
tion” in the disjunctive—could have appeared to the jury to
recognize two kinds of activity against which CPD might
have retaliated, one protected by the First Amendment and
one protected only by Title VII.
Anticipating our conclusion, the City has argued that it is
contrary to the law of this circuit for the jury to have
thought that “filing charges” was not protected by the
constitutional right of free speech. However, the City’s
argument on this point fails for two reasons. First, as Ms.
Deloughery points out, the City cannot now challenge the
jury instructions as a misstatement of the law of this circuit
because it did not object to the instructions at trial. See, e.g.,
R.J. O’Brien & Assocs., Inc. v. Forman, 298 F.3d 653, 657 (7th
Cir. 2002) (“We will not make an end run around the failure
to object to the jury instructions . . . .”).
Nos. 04-2657 & 04-2876 13
Furthermore, although the filing of an employment
grievance is entitled to constitutional protection if it ad-
dresses a matter of public concern, it is not at all clear that
Ms. Deloughery’s filing of charges was protected by the
First Amendment. See Zorzi v. County of Putnam, 30 F.3d 885,
897 (7th Cir. 1994) (recognizing that, under certain circum-
stances, the filing of charges of discrimination or of a
lawsuit claiming discrimination will not constitute a matter
of public concern); see also Yatvin v. Madison Metro. Sch.
Dist., 840 F.2d 412, 419 (7th Cir. 1988) (“[N]ot every legal
gesture . . . is protected by the First Amendment.”). As Ms.
Deloughery points out, the jury was not asked to determine
whether her filing of charges touched on a matter of public
concern. And, as we have explained at length, the district
court’s instructions certainly did not require the jury to treat
“filing charges” as equivalent to constitutionally-protected
“activity in opposing discrimination.”
The City also argues that the fact that the jury returned
verdicts against Johnston on both of her claims is proof that
the jury’s verdicts on Ms. Deloughery’s claims were incon-
sistent, since the two women presented “identical” evi-
dence. Appellant’s Br. at 29. Ms. Deloughery contends that
the City has waived this argument by failing to present it to
the district court on its motion for a new trial. Notwith-
standing the City’s likely waiver of this argument, the
verdicts returned on Johnston’s claims do not affect our
view of the jury’s verdicts as to Ms. Deloughery. Even if the
evidence about Johnston’s filing of charges was the same as
Ms. Deloughery’s evidence, it was well within the jury’s role
as factfinder to determine that Ms. Deloughery’s actions
influenced Superintendent Hillard’s decision not to promote
her, while also concluding that Johnston’s actions had no
effect on him.
The City makes one final argument with respect to the
jury’s verdicts: It claims that the jury was sympathetic to
14 Nos. 04-2657 & 04-2876
Ms. Deloughery but skeptical of her allegations and so
decided to split the difference by finding for her on one
claim and against her on another. Cf. United States ex rel.
Chandler v. Cook County, 277 F.3d 969, 977 (7th Cir. 2002)
(“There is always the danger that the ‘deep pocket’ of the
municipality’s tax base will tempt a jury to succumb to an
unprincipled determination.”). Courts cannot indulge in
such speculation; they are “required to reconcile” inconsis-
tent jury verdicts “if possible.” American Nat’l Bank, 125 F.3d
at 431 (internal quotation omitted). As we already have
explained, the district court recognized that the jury’s
verdicts on Ms. Deloughery’s claims can be reconciled.
Accordingly, we shall affirm the district court’s denial of the
City’s motion for a new trial as an appropriate exercise of its
discretion.
C. Remittitur
The City also submits that the award of compensatory
damages should be reduced further or vacated altogether
for a new trial on damages. Generally, we review an award
of compensatory damages with an eye to three consider-
4
ations: “(1) whether the award is monstrously excessive; (2)
whether there is no rational connection between the award
and the evidence; and (3) whether the award is roughly
comparable to awards made in similar cases.” David, 324
F.3d at 864. When “the district court has remitted a portion
of the jury’s award and the defendant claims that the
remitted award is still excessive,” this court must “review
4
We have recognized that “the ‘monstrously excessive’ inquiry
is a vague one that may simply be another way of asking whether
there is a rational connection between the award and the evi-
dence.” Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 713-14
(7th Cir. 2004).
Nos. 04-2657 & 04-2876 15
the damages evidence in the light most favorable to the
jury’s verdict, and [the remittitur] must stand unless there
is no rational connection between the evidence and the . . .
[remitted] award.” McNabola v. Chicago Transit Auth., 10
F.3d 501, 516 (7th Cir. 1993).
The City contends that there is no rational connection
between the remitted award and the evidence in the present
case. For instance, the City points out that Ms. Deloughery
never has sought professional help for her emotional
distress, and it suggests that the real source of that distress
was her divorce or the stress of caring for small children,
not the City’s actions. The City also submits that this award
is not at all comparable to awards in similar cases.
We first shall consider whether the evidence in the present
case rationally can be understood to support the remitted
award. Here, we believe there is a sufficient factual predi-
cate in the record to justify the decision of the district court.
As Chief Judge Flaum wrote in Tullis v. Townley Engineering
& Manufacturing Co., Inc., 243 F.3d 1058, 1068 (7th Cir. 2001),
“[a]n award for nonpecuniary loss can be supported, in
certain circumstances, solely by a plaintiff’s testimony about
his or her emotional distress.” Although the City regards the
evidence as meager, neither the jury nor the trial judge took
that view. See id. The record can be read as the story of a
highly motivated female police officer, with a family
heritage in law enforcement, being frustrated in her quest
for greater responsibility simply because she had asserted
her right to be free from discrimination. The jury was
informed of the other possible causes of Ms. Deloughery’s
emotional distress but believed that the defendant’s actions
nevertheless caused her significant trauma. Her testimony
was succinct and to the point; however, brevity and self-
control in a judicial proceeding need not be interpreted as
a weak case, and the jury and trial judge were entitled to
16 Nos. 04-2657 & 04-2876
5
take that view.
We are reluctant to substitute our assessment of the
evidence in place of the discretion of the district court,
exercised in light of what it witnessed at trial. The district
court had the benefit of observing Ms. Deloughery’s
demeanor on the stand and thus was particularly well-
positioned to assess whether the jury’s award rationally
reflected the evidence in the case. As the Supreme Court has
noted, “[t]rial judges have the unique opportunity to
consider the evidence in the living courtroom context, . . .
while appellate judges see only the cold paper record.”
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438 (1996)
(internal quotations omitted).
Moreover, in this case, the district court made an explicit
determination, based on Ms. Deloughery’s demeanor, that
the CPD’s retaliation against her had a “significant emo-
tional impact . . . on her.” R.121 at 6. Furthermore, the court
thought it reasonable for the jury to conclude that Ms.
Deloughery “had suffered and would continue to suffer
significant emotional distress as a result of Hillard’s deci-
sion to deny her promotion to captain.” Id. at 7. We also are
inclined to accept the award of damages in this case because
the district court, which had the benefit of witnessing trial,
itself remitted the jury’s award to an amount that it deter-
mined was commensurate with the evidence in the present
case viewed in light of comparable cases. Indeed, the district
court gave the matter of emotional distress thoughtful and
focused attention. After reading the briefs and hearing the
arguments of counsel, we have read the pertinent parts of
the record. But a cold record is a poor substitute for the live
5
The jury was entitled as well to conclude that she need not
have consulted a mental health professional. See Tullis v. Townley
Eng’g & Mfg. Co., Inc., 243 F.3d 1058, 1068 (7th Cir. 2001).
Nos. 04-2657 & 04-2876 17
testimony that the district court heard and evaluated. We
shall not upset the district court’s determination that the
evidence in the case supported a substantial award of
damages for emotional distress.
We also shall consider whether the award is comparable
to awards in similar cases. The City argues that, even the
remitted damages in this case are far in excess of amounts
that we have approved in previous cases involving retalia-
6
tion. See, e.g., David, 324 F.3d at 864-65 (approving compen-
satory damages of $50,000—remitted from $100,000 by trial
court—in case of retaliatory denial of promotion); see also
Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)
(noting that “[t]he jury’s award . . . [was] significantly
higher than any award approved in the context of unconsti-
tutional firings,” and approving compensatory damages of
$15,000—remitted from $55,000 by trial court—following
retaliatory transfer) (emphasis in original).
However, even though “[a]wards in other cases provide
a reference point that assists the court in assessing reason-
ableness[,] they do not establish a range beyond which
awards are necessarily excessive. Due to the highly fact-
specific nature of Title VII cases, such comparisons are
rarely dispositive.” Lampley v. Onyx Acceptance Corp., 340
F.3d 478, 485 (7th Cir. 2003), cert. denied, 540 U.S. 1182
(2004). Furthermore, as Ms. Deloughery points out, there are
6
As a corollary, the City points to 42 U.S.C. § 1981a(b)(3)(D),
which sets the outer limits of compensation for “emotional pain,
suffering, inconvenience, mental anguish . . . and other
nonpecuniary losses” at $300,000. See also Lust v. Sealy, 383 F.3d
580, 590-91 (7th Cir. 2004) (suggesting that statutory caps on
damages may serve a constitutional purpose). The City argues
that this outer limit is further proof that the award in this case is
excessive.
18 Nos. 04-2657 & 04-2876
cases from this circuit that suggest that damages which
approach the amount awarded in this case may be appropri-
ate. See, e.g., Harvey v. Office of Banks & Real Estate, 377 F.3d
698, 714 (7th Cir. 2004) (noting that the “jury could have
reasonably concluded that awards in the range of $50,000 to
$150,000 were necessary to compensate” the plaintiffs in a
discrimination case when the evidence showed that plain-
tiffs suffered from “continuing mental and physical ail-
ments arising from . . . problems at work,” and upholding
district court’s denial of new trial on damages). Although
this award is higher than that approved in some other cases,
we believe that the award here is sufficiently commensurate
with other Title VII cases in this circuit to be within the
district court’s discretion to have made.
“Given the discretionary standard of review and the
district court’s thoughtful consideration of this issue,”
David, 324 F.3d at 864, we conclude that the district court
acted within its discretion in remitting the jury’s award in
the present case to $175,000, and we uphold the award.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
Nos. 04-2657 & 04-2876 19
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-05