Equal Employment Opportunity Commission v. Autozone, Inc.

In the

United States Court of Appeals
For the Seventh Circuit

No. 12-1017

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,

Plaintiff-Appellee,
v.

A UTOZ ONE, INCORPORATED ,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CV-1154—John A. Gorman, Magistrate Judge.

A RGUED S EPTEMBER 13, 2012—D ECIDED F EBRUARY 15, 2013

Before M ANION, S YKES, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. The Equal Employment Oppor-
tunity Commission filed this employment discrimina-
tion case on behalf of John Shepherd, a former employee
of AutoZone, and alleged that AutoZone had violated the
Americans with Disabilities Act. Shepherd had a back
injury that was aggravated by mopping floors, and he
claimed that AutoZone required him to mop the store
2 No. 12-1017

floors despite his requests for relief. Among other
claims, the EEOC alleged that AutoZone had failed to
accommodate Shepherd’s disability. The magistrate
judge hearing this case initially ruled for AutoZone on
summary judgment on this accommodation claim, but
we reversed that ruling on appeal. On remand, a jury
returned a verdict in Shepherd’s favor. The magistrate
judge then approved $100,000 in compensatory dam-
ages, $200,000 in punitive damages, $115,000 in back pay,
an injunction on AutoZone’s anti-discrimination prac-
tices, and the EEOC’s motion to vacate a prior award
of costs to AutoZone from the first trial. AutoZone
appeals the verdict and remedies. We affirm on all
issues except for a provision in the injunction, which
we remand for further proceedings.

I. Facts
Shepherd started working for AutoZone, Inc.
(“AutoZone”) in 1998. He initially worked as a sales
clerk—a non-supervisory position—but was promoted
to parts sales manager a year later. Shepherd’s store
manager called him a good salesman who could “sell
ice cubes to an Eskimo,” and noted that customers
would specifically ask for Shepherd’s assistance. As a
result, Shepherd averaged the highest sales per customer
among the employees at his store in 2003. Although
Shepherd received several reprimands at work, he
won the AutoZone Extra Miler award, which AutoZone
characterized as a “prestigious honor,” and AutoZone
even asked Shepherd to train new employees.
No. 12-1017 3

But Shepherd suffered from a chronic back injury. In
1996, Shepherd had been permanently injured while
working for a different employer, and he sought help
from his neurologist, Dr. Marc Katchen. Dr. Katchen
determined that Shepherd had impairments to his
trapezius and rhomboid muscles of the upper-left side
of his back, a degenerative-disc disease of the cervical
vertebrae, and a herniated disc of the cervical verte-
brae. As a result, Shepherd could rotate his torso, but
repetitive twisting aggravated his condition and caused
“flare-ups,” which brought on severe pain in his neck
and back.
About 80% of Shepherd’s work at AutoZone was
devoted to sales and customer service, and these
activities did not affect his health. However, soon
after starting work at AutoZone, Shepherd began to
experience severe flare-ups that caused his back and
neck to swell, and would cause pain with the slightest
of movements. He had to use hot baths, ice, and a
TENS (Transcutaneous Electrical Nerve Stimulation)
unit that sent electrical currents through his skin
to control the pain. Dr. Katchen determined that these
flare-ups were caused by the repetitive motions involved
in mopping AutoZone’s floors, which was one of Shep-
herd’s job requirements.
Shepherd asked his store manager, Larry Gray, if he
could be released from mopping, and Gray informally
allowed Shepherd to perform other tasks instead. But
when the district manager, Steven Smith, found out that
Shepherd was no longer mopping the floors, he directed
Gray to have Shepherd resume mopping. Gray complied.
4 No. 12-1017

After Shepherd transferred to another AutoZone store
in Smith’s district, he again sought to avoid mopping the
floors. The store manager, Terry Wilmot, was willing to
accommodate Shepherd’s back injury, but when one of
Shepherd’s coworkers complained about Shepherd’s
special treatment, Smith again insisted that Shepherd
should mop the floors. Although Wilmot allowed Shep-
herd to avoid mopping duties when Smith was not
around, Smith demoted Wilmot in July 2002, and replaced
him with a new store manager, Steven Thompson.
The testimony at trial revealed two distinct versions
of Shepherd’s job requirements while he worked for
Thompson. Thompson and Smith testified that they
were willing to accommodate Shepherd’s condition.
They stated that whenever Shepherd was scheduled to
mop the floors, he was allowed to delegate the mopping
task to other AutoZone employees because he was a
parts sales manager. Shepherd, however, testified that
Thompson and Smith still required him to mop the
floors. He stated that he had sent a myriad of health and
medical forms—some produced in conjunction with
Dr. Katchen—to AutoZone officials, but he never
received an accommodation.
In March 2003, Shepherd took a medical leave of
absence because his mopping duties had caused his
condition to worsen. He returned to work in April, and
although Thompson and Smith testified that Shepherd
had been free to delegate his mopping duties, Shepherd
testified that he was still compelled to mop the floors.
As a result, he suffered from flare-ups four or five times
No. 12-1017 5

a week and was unable to perform basic tasks of his
daily routine. Shepherd’s wife, Susan, had to help Shep-
herd get dressed, wash his body, and engage in other
activities around the house. Shepherd began to suffer
from depression and Dr. Katchen prescribed an anti-
depressant.
Shepherd continued to seek an accommodation that
would allow him to stop mopping the floors. Shep-
herd contacted a number of corporate officials at
AutoZone and was quite insistent that he needed an
accommodation. Among other corporate officials, Shep-
herd frequently contacted Jackie Moore, the lead
disability coordinator who worked at AutoZone’s corpo-
rate benefits department in Memphis, Tennessee.
On September 12, 2003, Shepherd was wringing out a
mop when he felt a sharp pain. He tried to continue
his work, but the pain persisted, and he suffered a dis-
abling flare-up that left him unable to return to work
for the rest of the year. Three days after this flare-up,
Smith sent Shepherd a written letter that relieved
Shepherd of his mopping duties because of his back
condition. Over the next few months, Shepherd received
extensive treatments from Dr. Katchen, including heat
treatment, physical therapy, medications, deep tissue
massage, ultrasound, antidepressants, and sleep induc-
ers. When Shepherd tried to return to work in Janu-
ary 2004, he learned that AutoZone would not
allow him to return. Instead, AutoZone kept Shep-
herd on involuntary medical leave until February 2005,
when it terminated his employment with AutoZone.
6 No. 12-1017

Throughout this process, Shepherd had filed multiple
charges of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), and in June 2007, the
EEOC brought an action against AutoZone under the
Americans with Disabilities Act (“ADA”). The EEOC’s
complaint alleged that AutoZone had failed to accom-
modate Shepherd’s disability during his employment
from March to September 2003. Additionally, it alleged
that AutoZone had retaliated against Shepherd and had
failed to accommodate his disability when it refused
to allow Shepherd to return to work in January 2004
and later terminated his employment. The EEOC and
AutoZone agreed to submit to the jurisdiction of a magis-
trate judge, and AutoZone moved for summary judg-
ment on all claims.
The magistrate judge granted summary judgment
for AutoZone on the March to September 2003 accommo-
dation claim, but allowed the involuntary-leave and
termination claims to go to trial. A jury found that Shep-
herd had not been qualified to perform his job in
January 2004 and therefore ruled in AutoZone’s favor
on these claims. The EEOC appealed the magistrate
judge’s grant of summary judgment on the accommoda-
tion claim, but not the jury’s verdict. On appeal, we
reversed the magistrate judge’s grant of summary judg-
ment and remanded for further proceedings. EEOC
v. AutoZone, Inc., 630 F.3d 635, 644-45 (7th Cir. 2010).
In preparation for the second trial, AutoZone moved
to exclude Dr. Katchen’s testimony because he had not
produced a written report, but the magistrate judge
No. 12-1017 7

denied this motion. The magistrate judge then presided
over a jury trial on the accommodation claim, and the
jury returned a verdict in favor of the EEOC. The jury
ruled that Shepherd had been qualified to perform his
job between March and September 2003, and awarded
$115,000 in back pay, $100,000 in compensatory damages,
and $500,000 in punitive damages. After trial, the magis-
trate judge remitted the punitive damages to $200,000
to bring the compensatory and punitive damages within
the ADA’s $300,000 statutory cap. The magistrate judge
also granted a motion from the EEOC to impose an in-
junction on AutoZone and granted a motion from the
EEOC to vacate an award of costs to AutoZone from
the first trial.

II. Discussion
AutoZone appeals the magistrate judge’s decision on
three grounds. First, AutoZone argues that the first trial
precluded the second jury from reaching its verdict
against AutoZone. Second, if we find that the second jury
was not precluded from reaching its verdict, AutoZone
argues for a new trial because it contends that the EEOC
had Dr. Katchen testify without submitting a written
report. Third, if we uphold the verdict of the second trial,
AutoZone argues that we should alter the remedies
resulting from it. Specifically, AutoZone challenges the
compensatory damages, the punitive damages, the in-
junction, and the award of costs. We address each
of AutoZone’s arguments in turn.
8 No. 12-1017

A. Issue Preclusion
AutoZone argues that issue preclusion prevented the
second jury from reaching its verdict in favor of the
EEOC. We review a district court’s ruling on issue preclu-
sion de novo. Dexia Crédit Local v. Rogan, 629 F.3d 612,
628 (7th Cir. 2010).
Issue preclusion contains four elements and requires
that:
(1) the issue sought to be precluded must be the same
as that involved in the prior litigation, (2) the issue
must have been actually litigated, (3) the determina-
tion of the issue must have been essential to the final
judgment, and (4) the party against whom estoppel
is invoked must be fully represented in the prior
action.
Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d
539, 547 (7th Cir. 2011) (quoting H-D Mich., Inc. v. Top
Quality Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007)). Issue
preclusion is an affirmative defense and the party
asserting it has the burden of proof. Simpsen v. Nickel,
450 F.3d 303, 306 (7th Cir. 2006).
The first trial addressed the EEOC’s involuntary-
leave and termination claims. To prevail in that trial, the
EEOC needed to establish that (1) Shepherd was a
qualified individual with a disability; (2) AutoZone was
aware of Shepherd’s disability; and (3) AutoZone failed
to reasonably accommodate Shepherd’s disability. See
Mobley v. Allstate Ins. Co., 531 F.3d 539, 545 (7th Cir. 2008).
AutoZone had argued that mopping was an essential
No. 12-1017 9

function that Shepherd was unable to perform, and that
he was therefore not a qualified individual under the
first element. The first jury then returned a verdict de-
claring that Shepherd was not qualified to perform his
job in January 2004. But the second jury returned a
verdict stating that Shepherd was qualified to perform
his job in March through September 2003. AutoZone
moved for judgment as a matter of law on the ground
that the first trial precluded the second jury from
reaching its verdict. The magistrate judge denied
AutoZone’s motion, and AutoZone now seeks to have
this ruling reversed.
Even though both juries addressed the same element
in the EEOC’s case, the two trials dealt with different
time periods. The verdict form for the first jury asked,
“In January 2004, was Mr. Shepherd qualified to
perform his job?” The first jury answered “No.” The
second jury, however, returned a verdict that pertained
only to “the period March 2003 to September 12, 2003.”
The verdict form for the second jury asked, “Was John
Shepherd qualified to perform his job during this pe-
riod?” The second jury answered “Yes.”
AutoZone recognizes that the two juries analyzed two
different time periods, but it argues that Shepherd’s
condition remained constant throughout his employment
at AutoZone because his back injury was permanent. But
this argument ignores Shepherd’s September 12, 2003,
flare-up that caused him to take a lengthy leave of ab-
sence. Even AutoZone treated Shepherd differently
after his disabling flare-up. Before that flare-up, AutoZone
10 No. 12-1017

purportedly expressed a desire to accommodate Shep-
herd’s disability. Three days after his disabling flare-
up, AutoZone sent Shepherd a letter indicating that
Shepherd “should not be performing [certain tasks],
such as, scrubbing, buffing, and sweeping.” Ultimately,
AutoZone concluded that Shepherd could no longer
perform his job and terminated his employment.
Just as AutoZone treated Shepherd’s health dif-
ferently after the September 12, 2003, flare-up, we too
recognize that Shepherd’s health was not the same after
his disabling flare-up. Because the two juries considered
different issues, AutoZone is unable to meet the first
element of issue preclusion.1 We therefore conclude
that the magistrate judge correctly denied AutoZone’s
motion for judgment as a matter of law.

B. Expert Testimony
Because issue preclusion did not prevent the second
jury from reaching its verdict, we must now address
AutoZone’s motion for a new trial. AutoZone moved for
a new trial because Dr. Katchen testified without sub-
mitting a written report, but the magistrate judge
denied this motion. We review a district court’s dis-
covery determinations and denials of motions for new
trials for an abuse of discretion. Miksis v. Howard, 106

1
Because we affirm on this basis, we need not reach the
EEOC’s arguments that AutoZone forfeited this issue or that
the issue was barred by laches.
No. 12-1017 11

F.3d 754, 758 (7th Cir. 1997) (discovery determinations);
Ross v. Black & Decker, Inc., 977 F.2d 1178, 1182 (7th
Cir. 1992) (motions for new trials).
An expert witness must submit a written report “if the
witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the
party’s employee regularly involve giving expert testi-
mony.” Fed. R. Civ. P. 26(a)(2)(B). However, a treating
physician can provide an expert opinion without sub-
mitting a written report if the physician’s opinion
was formed during the course of the physician’s
treatment, and not in preparation for litigation. See
Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35
(7th Cir. 2010) (holding that doctors who had testified
about the causation of the defendant’s injuries specif-
ically for litigation purposes were required to submit
expert reports).
Dr. Katchen testified about his treatment of Shepherd’s
back condition. In his testimony, he discussed his role
as Shepherd’s treating physician and reviewed and ex-
plained various medical records that he had produced
while treating Shepherd. Additionally, Shepherd had
been Dr. Katchen’s patient since 1997—well in advance
of this litigation. Because Dr. Katchen’s testimony
focused on his treatment of Shepherd and his
medical opinions were not formed for this litigation,
the magistrate judge did not abuse his discretion in
permitting Dr. Katchen to testify. For the same reason,
the magistrate judge did not abuse his discretion in
denying AutoZone’s motion for a new trial on this basis.
12 No. 12-1017

C. Remedies
Because we do not require the magistrate judge to
hold a new trial, we must now address AutoZone’s
arguments about the remedies that resulted from
that trial. AutoZone raises issues relating to (1) the com-
pensatory damages; (2) the punitive damages; (3) the
injunction; and (4) the award of costs.

1. Compensatory Damages
AutoZone first argues that the compensatory damages
are excessive and should be remitted from $100,000
to $10,000. The jury awarded compensatory damages of
$100,000 for the “physical, emotional and/or mental pain
[Shepherd] experienced . . . as a result of AutoZone’s
failure to provide him with reasonable accommodation.”
AutoZone moved for remittitur, but the magistrate judge
denied this request and kept compensatory damages at
$100,000. Because the district court is in a better position
than we are to make findings of credibility, consider the
weight of evidence, and make inferences from that evi-
dence, we give a district court’s findings great weight.
Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d
576, 580 (7th Cir. 1996). We therefore review a district
court’s order refusing remittitur of compensatory
damages for an abuse of discretion. G. G. v. Grindle, 665
F.3d 795, 798 (7th Cir. 2011).
To determine whether an award of compensatory
damages is excessive, we consider whether the damages
awarded (1) were monstrously excessive; (2) had no
No. 12-1017 13

rational connection between the award and the evidence;
and (3) were roughly comparable to awards made in
similar cases. Lampley v. Onyx Acceptance Corp., 340 F.3d
478, 483-84 (7th Cir. 2003); Merriweather, 103 F.3d at 580. But
see EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1285
n.13 (7th Cir. 1995) (suggesting that the first factor is a
vague standard of review and should be folded into the
second factor—“neither monstrous nor irrational”).
We agree with the magistrate judge that the EEOC
provided sufficient evidence to support the award of
compensatory damages. First, Shepherd testified about
the symptoms of his back condition and the details of
his disabling September 12, 2003, back injury. Addi-
tionally, evidence from Shepherd’s wife provided a
detailed account of the effect that Shepherd’s injuries had
on his daily life while working at AutoZone. Finally,
Dr. Katchen testified in great detail about his diagnosis
and treatment of Shepherd’s myofascial pain. This evi-
dence provides a basis for concluding that the compensa-
tory damages were not monstrously excessive, but
were instead rationally connected to Shepherd’s pain.
Additionally, the magistrate judge accurately observed
that the compensatory damages in this case are approxi-
mately the same value as the compensatory damages
awarded in comparable cases. See, e.g., Deloughery v. City
of Chi., 422 F.3d 611, 613-14, 619-21 (7th Cir. 2005) (up-
holding an award of $175,000 in compensatory damages
for an employee’s emotional distress after her employer
failed to promote her); Harvey v. Office of Banks & Real
Estate, 377 F.3d 698, 713-15 (7th Cir. 2004) (upholding
14 No. 12-1017

an award of $100,000 in compensatory damages for an
employee’s “mental and physical ailments,” for which a
“jury could have reasonably concluded that awards in
the range of $50,000 to $150,000 were necessary”);
Lampley, 340 F.3d at 484-85 (upholding an award of
$75,000 in compensatory damages when the employee’s
improper termination had lingering negative effects
on the employee’s mental state).
In fact, Shepherd’s case is more extreme than some of
these cases because Shepherd experienced near-daily
pain that left him incapable of performing common
activities, such as putting on his clothes and taking a
shower. We have recognized that cases that include
even the slightest “physical element” are often associated
with more substantial compensatory-damages awards.
See Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394,
410 (7th Cir. 2010) (awarding $250,000 in compensatory
damages because the employee had been concerned
about “his safety and that of his patients”); see also Naeem
v. McKesson Drug Co., 444 F.3d 593, 598-600, 611-12 (7th
Cir. 2006) (upholding an award of $240,000 in damages
for pain and suffering under Illinois state law when the
plaintiff suffered physical symptoms of anxiety during
a complicated pregnancy); Farfaras v. Citizens Bank &
Trust of Chi., 433 F.3d 558, 560-64, 566-67 (7th Cir. 2006)
(upholding an award of $200,000 in compensatory
damages because the employee had been repeatedly
and inappropriately touched and intimidated, among
other forms of sexual harassment).
We conclude that all three factors used to determine
whether compensatory damages are excessive weigh in
No. 12-1017 15

favor of the EEOC. The magistrate judge therefore
did not abuse his discretion when he upheld the award
of $100,000 in compensatory damages for Shepherd’s
pain and suffering.

2. Punitive Damages
The jury awarded $500,000 in punitive damages
against AutoZone, but the magistrate judge reduced the
punitive damages to $200,000 to comply with a statutory
cap. See 42 U.S.C. § 1981a(b)(3)(D). AutoZone first asks
us to vacate the punitive damages for insufficient evi-
dence. If we decline to do so, AutoZone alternatively
asks us to remit punitive damages under the Due
Process Clause to no more than $10,000.

i. Sufficiency of Evidence
We review the denial of a motion for judgment as a
matter of law de novo. Clarett v. Roberts, 657 F.3d 664,
674 (7th Cir. 2011). We must “examine the evidence
presented, combined with any reasonably drawn infer-
ences, and determine whether that evidence sufficiently
supports the verdict when viewed in the light most
favorable to the non-moving party,” here, the EEOC.
Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1129 (7th
Cir. 1997); see also Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 149-51 (2000). Although we examine the
sufficiency of the evidence, we do “not make credibility
determinations or weigh the evidence.” Schandelmeier-
Bartels v. Chi. Park Dist., 634 F.3d 372, 376 (7th Cir. 2011).
16 No. 12-1017

Instead, we reverse the verdict only if no rational jury
could have found for the prevailing party. Bogan v. City
of Chi., 644 F.3d 563, 572 (7th Cir. 2011).
Punitive damages are available to the EEOC if it
can demonstrate that AutoZone engaged in intentional
discrimination “with malice or with reckless indif-
ference to the federally protected rights of an aggrieved
individual.” 42 U.S.C. § 1981a(b)(1). In Kolstad v.
American Dental Ass’n, the Supreme Court established a
three-part framework to determine whether punitive
damages are proper under § 1981a. 527 U.S. 526, 533-46
(1999). First, the plaintiff must show that the employer
acted with “malice” or “reckless indifference” toward the
employee’s rights under federal law. Id. at 533-39. A
plaintiff “may satisfy this element by demonstrating
that the relevant individuals knew of or were familiar
with the anti-discrimination laws” but nonetheless
ignored them or lied about their discriminatory activi-
ties. Bruso v. United Airlines, Inc., 239 F.3d 848, 857-58 (7th
Cir. 2001). The plaintiff has the burden of proving “malice”
or “reckless indifference” by a preponderance of the
evidence. See generally Price Waterhouse v. Hopkins, 490 U.S.
228, 253 (1989). Second, the plaintiff must establish a basis
for imputing liability to the employer based on agency
principles. Kolstad, 527 U.S. at 539-44. Employers can be
liable for the acts of their agents when the employer
authorizes or ratifies a discriminatory act, the employer
recklessly employs an unfit agent, or the agent commits a
discriminatory act while “employed in a managerial
capacity and . . . acting in the scope of employment.” Id.
at 542-43 (quoting Restatement (Second) of Agency
No. 12-1017 17

§ 217 C (1957)). Third, when a plaintiff imputes liability
to the employer through an agent working in a “manage-
rial capacity . . . in the scope of employment,” the em-
ployer has the opportunity to avoid liability for punitive
damages by showing that it engaged in good-faith
efforts to implement an anti-discrimination policy. Id. at
544-46. This is a fact-intensive analysis, and “although
the implementation of a written or formal anti-discrimina-
tion policy is relevant to evaluating an employer’s good
faith efforts . . . , it is not sufficient in and of itself to
insulate an employer from a punitive damages award.”
Bruso, 239 F.3d at 858.
The three Kolstad guideposts support the punitive-
damages award. First, a rational jury could have found
that AutoZone acted with “reckless indifference” to Shep-
herd’s federal employment rights. AutoZone stipulated
that Thompson, Smith, and Moore had all received
ADA training.
Furthermore, Teresa James, the benefits manager
for AutoZone and Moore’s supervisor, testified about
AutoZone’s established procedure for handling employ-
ees’ accommodation requests. If an AutoZone em-
ployee made an accommodation request, the benefits
department would obtain the employee’s medical
documentation, such as a physician’s report, then co-
ordinate with AutoZone’s legal department to “ensure
that there is a consensus on what the request is.” The
benefits department would then review the physical
demands of the employee’s position and coordinate
with a human resources manager in the field to deter-
18 No. 12-1017

mine whether AutoZone could accommodate the em-
ployee’s disability.
But the jury received evidence suggesting that this
procedure was not properly followed in Shepherd’s
case. Moore, AutoZone’s lead disability coordinator,
testified that she knew Shepherd and remembered her
conversations with him. Her testimony suggested that
she was dismissive of Shepherd’s requests for an
accommodation, and indicated that other AutoZone
employees were frustrated with Shepherd because he
“had a penchant for corresponding to various people
within the AutoZone corporation and at various depart-
ments.”
Even if Moore had been frustrated by Shepherd’s de-
meanor, she also testified that she had been aware of
his medical restrictions. Indeed, she knew that he “had
medical conditions because that would have been
within the realm of why I would have worked with him
in the first place, to try . . . to provide reasonable accom-
modation to return to work considering those instances.”
Shepherd testified that he had told Moore that “for what-
ever reason Steve Smith was telling Steve Thompson
that he wasn’t to accommodate my restrictions as far
as mopping, and that all I was asking for pretty much
was that accommodation . . . .”
Although Moore was aware of Shepherd’s situation,
her testimony revealed that she did not address Shep-
herd’s disability through AutoZone’s typical proce-
dures. Instead, when asked whether she could “recall
having considered any potential accommodations that
would address [Shepherd’s] limitation,” Moore answered:
No. 12-1017 19

“I think it is something that I would have addressed. Not
always, though. That would not always, of course, be a
deciding factor because we considered other things like
staffing levels. . . . So, you know, it’s something that we
would have certainly talked about.” Moore testified
about what she hypothetically “would” do in Shepherd’s
case—not what she actually did. When Moore was
asked whether Shepherd’s “[in]ability to twist his
upper body would not have been a deciding factor by
itself” in determining whether AutoZone could make
an accommodation for Shepherd, she responded that “it
wouldn’t have been a single deciding factor of whether
or not . . . we would say, you know, No, we don’t have
anything for you to do.” Again, Moore talked about
making accommodations for Shepherd as a hypothetical.
Moore eventually did take concrete action to address
Shepherd’s situation. She coordinated with Smith and
instructed him to type up a letter for Shepherd. This
letter informed Shepherd that he should not engage in
any activities that affected his medical condition. But
this letter was dated September 15, 2003—three days
after Shepherd suffered his disabling back injury, and
the day that Dr. Katchen placed Shepherd on medical
leave. A jury could easily conclude that this letter was
delivered too late to affect Shepherd’s work require-
ments. A jury might even conclude that this letter was
nothing more than AutoZone’s attempt to cover up its
prior failure to accommodate Shepherd’s disability.
AutoZone argues that its mistakes—if any—were not
the result of reckless disregard for Shepherd’s rights, but
20 No. 12-1017

were caused by mere negligence, which is not sufficient
to support punitive damages under Gile v. United
Airlines, Inc., 213 F.3d 365 (7th Cir. 2000). In Gile, a
woman with various psychological disorders, Cheryl
Gile, worked for United Airlines during the night shift.
Id. at 368. But she discovered that working at night ag-
gravated her mental condition, and based on the di-
agnosis of a psychologist, Gile asked United Airlines to
accommodate her condition by reassigning her to the
day shift. Id. However, the medical director for United
Airlines examined Gile and concluded that a reassign-
ment to the day shift would not help her mental condi-
tion. Id. at 368-70. United Airlines then relied on the
medical director’s assessment to deny Gile her proposed
accommodation. Id. A jury imposed punitive damages on
United Airlines, but we reversed the award of punitive
damages. Id. at 376. We ruled that “United’s failure to
accommodate Gile’s disability amounted to negligence
because it misunderstood Gile’s difficulties, did not
regard her condition a disability and neglected to
pursue Gile in developing an alternative accommoda-
tion.” Id. at 375-76.
AutoZone, however, understood that Shepherd had a
back injury and regarded it as a disability. Thompson,
Smith, and Moore did not deny Shepherd an accommoda-
tion because they doubted the veracity of Dr. Katchen’s
medical reports or because they were relying on another
doctor’s analysis, as United Airlines did in Gile. Instead,
a rational jury could have concluded that they failed
to accommodate Shepherd’s disability because they
ignored AutoZone’s established procedures for handling
No. 12-1017 21

accommodation requests. Failing to follow up on an
accommodation request might only be negligence if it
occurs infrequently, but an employer’s response sinks
from negligence to reckless indifference when it re-
peatedly fails to accommodate an employee’s disability.
See May v. Chrysler Grp., LLC, 692 F.3d 734, 746 (7th Cir.
2012). Because Shepherd repeatedly asked Moore for
an accommodation, and asked for an accommodation
so often that Moore became frustrated by his persistence,
a rational jury could have decided that AutoZone’s re-
sponse was not mere negligence, but reckless indifference.
Second, a rational jury could have imputed liability to
AutoZone through a manager acting in the scope of
employment at AutoZone. We look to general principles
of agency law to determine whether managers act within
the scope of their employment. Kolstad, 527 U.S. at 539-44.
To do so, we “consider the kind of authority the
employer has given the employee, the amount of discre-
tion given to the employee in executing his job duties,
and the manner in which those duties are carried out.”
Bruso, 239 F.3d at 858.
Moore was the lead disability coordinator in
AutoZone’s benefits department and was responsible for
coordinating employees’ accommodations. When Smith
and Thompson needed to consult a corporate-level
officer about how to accommodate Shepherd’s disability,
they consulted Moore. Additionally, Moore had much
discretion in her job; Moore’s supervisor, James, was not
familiar with Shepherd’s case and did not instruct Moore
on how to address his disability. Because Moore had
22 No. 12-1017

the authority and discretion to make decisions about
employees’ accommodations, a rational jury could have
concluded that Moore was acting in a managerial
capacity in the scope of her employment when she autho-
rized accommodations for AutoZone employees. There-
fore, a rational jury could have imputed liability to
AutoZone based on the evidence presented at trial.
Third, a rational jury could have concluded that
AutoZone did not engage in good-faith efforts to enforce
an anti-discrimination policy. AutoZone did not intro-
duce a written anti-discrimination policy into evidence,
but instead relied on James, AutoZone’s benefits man-
ager, to explain AutoZone’s procedures for handling
disability accommodations in her testimony. Although
the employer is not required to present a written or
formal anti-discrimination policy, “it is difficult to ascer-
tain the contours of this policy without physical evi-
dence of its existence.” Lampley, 340 F.3d at 482.
Nor did AutoZone present evidence that an anti-discrim-
ination policy was properly enforced in Shepherd’s
case. We have held that an employer is unable to
establish good-faith efforts when “top management
officials” disregard the company’s anti-discrimination
policy. Bruso, 239 F.3d at 860-61; see also Hertzberg v. SRAM
Corp., 261 F.3d 651, 663-64 (7th Cir. 2001). Although
Thompson and Smith were not “top management offi-
cials,” Moore was the lead disability coordinator at
AutoZone and worked within the upper management of
AutoZone’s corporate structure. As already discussed, a
rational jury could have concluded that Moore exhibited
No. 12-1017 23

reckless indifference to Shepherd’s federal employment
rights, and a rational jury could also have concluded
that she disregarded AutoZone’s anti-discrimination
procedures.
Because a rational jury could have decided all three
parts of the Kolstad framework in favor of Shepherd, we
conclude that the magistrate judge correctly ruled that
a rational jury had sufficient evidence to impose
punitive damages. We therefore decline to vacate the
punitive damages.

ii. Due Process
Because we find sufficient evidence for a rational jury
to impose punitive damages, we must next consider
whether the punitive damages in this case are so grossly
excessive that they offend the Due Process Clause of the
Fourteenth Amendment. We review a district court’s
due process analysis of punitive damages de novo.
Grindle, 665 F.3d at 800; see also Cooper Indus., Inc. v.
Leatherman Tool Grp., Inc., 532 U.S. 424, 436 (2001).
We analyze the punitive-damages award of $200,000
under the framework the Supreme Court established in
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).
In Gore, the Supreme Court observed that punitive dam-
ages “may properly be imposed to further a State’s legiti-
mate interests in punishing unlawful conduct and deter-
ring its repetition,” but punitive damages violate the Due
Process Clause “[o]nly when an award can fairly be
categorized as ‘grossly excessive’ in relation to these
24 No. 12-1017

interests.” Id. at 568. The Supreme Court then instructed
courts to consider three guideposts: “(1) the degree of
reprehensibility of the defendant’s misconduct; (2) the
disparity between the actual or potential harm suffered by
the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the
jury and the civil penalties authorized or imposed in
comparable cases.” State Farm Mut. Auto. Ins. Co. v. Camp-
bell, 538 U.S. 408, 418 (2003) (citing Gore, 517 U.S. at 575).
The first guidepost requires us to consider the
reprehensibility of the defendant’s conduct and is
“[p]erhaps the most important indicium of the reason-
ableness of a punitive damages award.” Gore, 517 U.S. at
575. The Supreme Court has elaborated on the proper
framework that courts should use to analyze the
reprehensibility of the defendant’s conduct:
We have instructed courts to determine the
reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed
to economic; the tortious conduct evinced an indif-
ference to a reckless disregard of the health or safety
of others; the target of the conduct had financial
vulnerability; the conduct involved repeated actions
or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or
mere accident. The existence of any one of these
factors weighing in favor of a plaintiff may not be
sufficient to sustain a punitive damages award; and
the absence of all of them renders any award suspect.
State Farm, 538 U.S. at 419 (internal citation omitted).
No. 12-1017 25

These five factors weigh against AutoZone. First, Shep-
herd suffered physical—not just economic—harm. Mop-
ping the floors aggravated Shepherd’s back condition,
and Shepherd suffered severe, and ultimately disabling,
pain as a result. Second, AutoZone’s conduct demon-
strated a reckless disregard for Shepherd’s health.
AutoZone was aware that Shepherd suffered from a
back injury but did not adequately accommodate his
disability and required him to mop the floors anyway.
Third, Shepherd was financially vulnerable. When Shep-
herd was asked at trial why he continued to mop the
floors even though it caused him pain, he stated he
could not afford to lose his job because he had a wife
and children. Fourth, AutoZone’s dismissiveness of
Shepherd’s health concerns occurred on multiple oc-
casions and was not an isolated incident. Indeed,
Shepherd had contacted Moore so often that she
expressed frustration with Shepherd’s persistence. The
fifth factor considers whether the harm was caused in-
tentionally or accidentally. Shepherd’s flare-ups were
not the result of a mere accident, but were instead the
result of AutoZone’s reckless indifference. Therefore,
when we consider these factors as a whole, we conclude
that AutoZone’s conduct was sufficiently reprehensible
to justify imposing punitive damages.
The second guidepost requires us to examine the ratio
between punitive damages and “the actual harm
inflicted on the plaintiff.” Gore, 517 U.S. at 580. The Su-
preme Court has repeatedly declined to set a fixed ratio
to limit punitive damages based on constitutional
26 No. 12-1017

grounds, 2 but it has recognized that in practice, “few
awards exceeding a single-digit ratio between punitive
and compensatory damages . . . will satisfy due process.”
State Farm, 538 U.S. at 424-25. This approximation is not
definitive because “courts must ensure that the measure
of punishment is both reasonable and proportionate to
the amount of harm to the plaintiff and to the general
damages recovered.” Id. at 426.
The jury awarded the EEOC $100,000 in compensatory
damages, $500,000 in punitive damages, and $115,000
in back pay. The magistrate judge later remitted the
punitive damages to $200,000. This is a two-to-one ratio
between punitive and compensatory damages, and if back
pay is added to the compensatory damages, the value
of the punitive damages is actually less than the value
of the back pay and compensatory damages by $15,000.
We conclude that these ratios are well within the range
of constitutionally acceptable values.
The third guidepost requires us to compare the punitive
damages in this case to the “civil or criminal penalties

2
The Supreme Court established a one-to-one limit on
punitive damages in Exxon Shipping Co. v. Baker, 554 U.S. 471
(2008), but that case does not apply to our analysis. The
Supreme Court did not decide Exxon Shipping on constitu-
tional grounds but instead resolved the issue based on federal
maritime common law. Id. at 501-02; see also Pickett v.
Sheridan Health Care Ctr., 610 F.3d 434, 447 (7th Cir. 2010)
(declining to extend the reasoning of Exxon Shipping to
punitive damages awarded under § 1981a(b)(1)).
No. 12-1017 27

that could be imposed for comparable misconduct.” Gore,
517 U.S. at 583. This allows courts to show “substantial
deference to legislative judgments concerning appro-
priate sanctions for the conduct at issue.” Id. (quoting
Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492
U.S. 257, 301 (1989) (O’Connor, J., concurring in part and
dissenting in part)) (internal quotation marks omitted).
Neither the EEOC nor AutoZone directs us to any
comparable civil or criminal fines, but they are instead
content to discuss case law that they think is relevant.
Thankfully, we need not look far to determine the legisla-
ture’s judgment concerning the appropriate level of
damages in this case: Congress has already defined the
statutory cap for the sum of punitive and compensatory
damages at $300,000 for this case. § 1981a(b)(3)(D). We
recognize that this statutory cap suggests that an award
of damages at the capped maximum is not outlandish.
See Lust v. Sealy, Inc., 383 F.3d 580, 590-91 (7th Cir. 2004);
see also Hennessy v. Penril Datacomm Networks, Inc., 69
F.3d 1344, 1355 (7th Cir. 1995) (listing cases in which
courts have remitted damages to the statutory maximum).
Because all three of the Gore guideposts favor the
EEOC, we conclude that the punitive-damages award of
$200,000 does not violate due process. We therefore
decline to further remit the punitive damages.

3. Injunction
AutoZone also argues that the magistrate judge’s in-
junction was unwarranted and should be vacated.
28 No. 12-1017

District courts have wide discretion “to fashion a
complete remedy, which may include injunctive relief, in
order to make whole victims of employment discrim-
ination.” EEOC v. Gurnee Inn Corp., 914 F.2d 815, 817
(7th Cir. 1990). We therefore review a district court’s
grant of a permanent injunction for abuse of discretion.
Judge v. Quinn, 624 F.3d 352, 357 (7th Cir. 2010).
Once a district court finds that an employer has “inten-
tionally engaged in . . . an unlawful employment prac-
tice,” the court “may enjoin [the employer] from
engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate,
which may include . . . equitable relief as the court
deems appropriate.” 42 U.S.C. § 2000e-5(g)(1); see also
42 U.S.C. § 12117(a) (making § 2000e-5(g) applicable to
the ADA). To grant an injunction, a court must
consider “whether the employer’s discriminatory
conduct could possibly persist in the future.” Bruso, 239
F.3d at 864. Because the determinative judgment is
about the employer’s potential future actions, the EEOC
need not prove that the employer previously engaged
in widespread discrimination, and “injunctive relief is
appropriate even where the [EEOC] has produced no
evidence of discrimination going beyond the particular
claimant’s case.” EEOC v. Ilona of Hungary, Inc., 108 F.3d
1569, 1578 (7th Cir. 1997). The burden then falls on the
employer to prove that the discrimination is unlikely to
continue, and unless the employer can show that the
claimant’s case is “somehow different from the norm,
evidence that would establish a prima facie case for
[the claimant] serves the same function for the entire
No. 12-1017 29

class of individuals on whose behalf the EEOC seeks
relief.” EEOC v. United Parcel Serv., 94 F.3d 314, 318 (7th
Cir. 1996).
After the jury entered a verdict against AutoZone, the
EEOC moved to impose an injunction on AutoZone.
The EEOC asked the magistrate judge to impose an
injunction that required AutoZone to comply with the
reasonable-accommodation provision of the ADA, to
adopt a reasonable-accommodation policy and appro-
priate procedures to implement the policy, to train its
management-level employees, to post a notice about
AutoZone’s violation of the ADA, to keep records of its
ADA-related actions, to report these ADA-related
actions to the EEOC, and to comply with several
other miscellaneous provisions. However, the magi-
strate judge did not grant the motion in full. Instead, the
magistrate judge entered an injunction that only re-
quired AutoZone to (1) comply with the reasonable-accom-
modations requirement of the ADA for employees in the
Central District of Illinois; (2) to notify the EEOC of any
employee who requests an accommodation during the
next three years in the Central District of Illinois; and
(3) to maintain complete records of its responses to such
accommodation requests. The first requirement was
adopted verbatim from the EEOC’s motion, but the
other two requirements were less intrusive than the
EEOC’s proposed reporting and record-keeping provisions.

i. First Provision of the Injunction
AutoZone challenges the first provision of the injunction,
which, more specifically, states as follows: “AutoZone
30 No. 12-1017

shall make reasonable accommodations to the known
physical limitations of any qualified employee with a
disability who is working at an AutoZone retail store
within the Central District of Illinois and who requests
an accommodation or whose need for an accommoda-
tion is otherwise known to AutoZone.”
Unlike the second and third provisions of the
injunction, this provision has no time limit. In essence, the
magistrate judge permanently ordered AutoZone to
comply with the ADA’s accommodation requirement.
The order is enforceable via contempt motion, bypassing
the normal administrative and adjudicative processes
for ADA accommodation claims. AutoZone argues that
this part of the judge’s order amounts to an impermis-
sible “obey the law” injunction. See generally NLRB v.
Express Publ’g Co., 312 U.S. 426, 432-40 (1941); Swift &
Co. v. United States, 196 U.S. 375, 396 (1905); SEC v. Smyth,
420 F.3d 1225, 1233 n.14 (11th Cir. 2005); cf. Bowles v.
Montgomery Ward & Co., 143 F.2d 38, 43 (7th Cir. 1944);
Interstate Commerce Comm’n v. Keeshin Motor Express Co.,
134 F.2d 228, 231 (7th Cir. 1943).
An injunction that does no more than order a defeated
litigant to obey the law raises several concerns. One is
overbreadth. An obey-the-law injunction departs from
the traditional equitable principle that injunctions
should prohibit no more than the violation established
in the litigation or similar conduct reasonably related to
the violation. See, e.g., Express Publ’g, 312 U.S. at 433; Lowery
v. Circuit City Stores, Inc., 158 F.3d 742, 767 (4th Cir. 1998)
(an “obey the law” injunction “impermissibly subjects a
No. 12-1017 31

defendant to contempt proceedings for conduct unlike
and unrelated to the violation with which it was
originally charged”); Payne v. Travenol Labs., Inc., 565 F.2d
895, 897-98 (5th Cir. 1978). Another concern is vague-
ness. An obey-the-law injunction departs from the tradi-
tional equitable principle, codified in Rule 65(d) of
the Federal Rules of Civil Procedure, that an injunc-
tion must “state its terms specifically[] and . . . describe in
reasonable detail . . . the act or acts restrained or re-
quired.” Fed. R. Civ. P. 65(d)(1); see, e.g., Schmidt v. Les-
sard, 414 U.S. 473, 475-77 (1974) (per curiam); Nuxoll
ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d
668, 675 (7th Cir. 2008); Patriot Homes, Inc. v. Forest River
Hous., Inc., 512 F.3d 412, 415 (7th Cir. 2008); IDS Life Ins. Co.
v. SunAmerica Life Ins. Co., 136 F.3d 537, 543 (7th Cir. 1998);
City of Mishawaka, Ind. v. Am. Elec. Power Co., 616 F.2d 976,
991 (7th Cir. 1980); Payne, 565 F.2d at 897-98; H. K. Porter
Co. v. Nat’l Friction Prods. Corp., 568 F.2d 24, 27-28
(7th Cir. 1978). These overbreadth and vagueness con-
cerns are rooted in basic principles of due process:
Because of the risks of contempt proceedings, civil or
criminal, paramount interests of liberty and due
process make it indispensable for the chancellor or
his surrogate to speak clearly, explicitly, and specifi-
cally if violation of his direction is to subject a
litigant . . . to coercive or penal measures, as well as
to payment of damages.
H. K. Porter, 568 F.2d at 27.
In the specific context of employment-discrimination
actions, the district court has broad statutory authority
32 No. 12-1017

to fashion appropriate remedies, including injunctive
relief, for proven violations of the anti-discrimination
laws. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975) (Title VII confers broad remedial authority on
the court to fashion appropriate equitable relief). More
specifically, if the court finds that the employer has
“intentionally engaged in . . . an unlawful employment
practice charged in the complaint, the court may
enjoin [the employer] from engaging in such unlawful
employment practice, and order such affirmative action as
may be appropriate [including reinstatement and back
pay] . . . , or any other equitable relief as the court deems
appropriate.” 42 U.S.C. § 2000e-5(g)(1) (emphases added).
Thus, we have held that “[o]nce employment discrim-
ination has been shown, . . . district judges have broad
discretion to issue injunctions addressed to the
proven conduct.” Ilona of Hungary, 108 F.3d at 1578. We
have also held that injunctive relief addressed more
generally to “the type of discrimination proven by a
particular plaintiff” does not require “evidence of a pattern
or practice of similar conduct,” but it does require the
court to assess whether the proven “discriminatory
conduct could possibly persist in the future.” Id. (emphasis
added).
But the court exercises this remedial discretion in
accordance with traditional principles of equity, unless
the statute directs otherwise. See eBay, Inc. v. MercEx-
change, LLC, 547 U.S. 388, 391-92 (2006). Nothing in § 2000e-
5(g)(1) directs otherwise; indeed, the court’s remedial
authority is specifically keyed to equity. 42 U.S.C. § 2000e-
5(g)(1) (The court “may enjoin . . . such unlawful employ-
No. 12-1017 33

ment practice[] and order . . . any other equitable relief as
the court deems appropriate.” (emphases added)). In
practical terms this means that a request for an obey-the-
law injunction must be evaluated with great care; this
type of injunction will be an “appropriate” form of equita-
ble relief under § 2000e-5(g)(1) only where the evidence
suggests that the proven illegal conduct may be resumed.
Thus, for example, we have upheld obey-the-law injunc-
tions when the victorious employee remains at the com-
pany or has been reinstated; where the particular em-
ployees or supervisors responsible for the illegal
conduct remain at the company; and/or where the em-
ployer has taken some particular action—like with-
drawing an accommodation policy—that convinces the
court that voluntary compliance with the law will not be
forthcoming. See, e.g., Ilona of Hungary, 108 F.3d at
1572, 1579 (collecting cases); Gurnee Inn, 914 F.2d at 817;
Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1202 (7th
Cir. 1971). Often some combination of these factors is
present. We have vacated an obey-the-law injunction
that was not tailored to the particulars of the case. See
Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir. 1989). Gaddy
involved a discrimination claim premised on disparate
distribution of overtime hours; we vacated an injunction
generally prohibiting “future retaliation” because it was
“too broad” and “impermissibly subject[ed] the de-
fendants to contempt proceedings for conduct ‘unlike
and unrelated to the violation with which [the
defendants were] originally charged.’ ” Id. (alteration in
original) (quoting Express Publ’g, 312 U.S. at 436)); see
also Sturgill v. UPS, Inc., 512 F.3d 1024, 1034-35 (8th Cir.
2008); Lowery, 158 F.3d at 767.
34 No. 12-1017

Here, the EEOC admitted in its remedial motion that
the first provision of its proposed injunction did
nothing more than “duplicate the company’s existing
obligation under law.” The magistrate judge, too, acknowl-
edged that this provision merely “require[s] AutoZone
to comply with the reasonable accommodation provi-
sion of the ADA.”
The judge approved this provision in the injunction
after upholding the $200,000 award of punitive damages,
and much of the punitive-damages analysis also
applies here. The magistrate judge found that AutoZone
had submitted no written anti-discrimination policy
into evidence, and even if such a policy existed,
AutoZone presented no evidence that it had enforced
such a policy. Furthermore, the judge was shocked at
the “reprehensibility” of AutoZone’s conduct. Even
though at least one corporate officer had been informed
about Shepherd’s accommodation request, AutoZone
nonetheless “insisted for no good reason at all that Shep-
herd continue to mop.” The judge observed that “[t]he
requested accommodation was a very simple accom-
modation: assign the mundane task of mopping to
some employee other than Shepherd.” But instead of
implementing this accommodation, the judge found
that AutoZone “chose to threaten Shepherd with his job.”
The judge declared that this conduct was “total and
knowing disregard for the underlying purpose of
the ADA.”
When analyzing the EEOC’s request for an injunction,
the court observed that AutoZone had “updated” its
ADA compliance policy and employee manual to better
No. 12-1017 35

comport with the company’s statutory obligation to
accommodate employees with disabilities. But the judge
did not give this effort much weight, largely because the
company dragged its feet for eight years on coming to
grips with its ADA obligations. And despite an updated
policy and employee manual, the judge still had no
evidence showing that AutoZone had enforced its policy.
Although the judge did not explicitly discuss the
factors that we have said might support the limited use
of an obey-the-law injunction, AutoZone’s inaction over
eight years was sufficient to convince the judge that
compliance with the law will not be forthcoming without
an obey-the-law injunction. As the district court empha-
sized:
[T]he conduct of the Defendant’s managerial employ-
ees at the highest level was clearly an intentional
violation of the ADA. The evidence showed that
these employees knew of Shepherd’s back problems,
knew that he was under a physician’s care for those
problems, and knew that the problems were exacer-
bated by mopping. Despite that knowledge, those
managers insisted for no good reason at all that Shep-
herd continue to mop.
In light of the evidence showing AutoZone’s intransigence
at quite senior levels of management, we are satisfied
that the district court did not abuse its discretion in
ordering AutoZone to comply with the ADA’s reasonable
accommodation requirement in the Central District of
Illinois.
Nonetheless, even though the judge limited the geo-
graphic reach of the EEOC’s proposed obey-the-law
36 No. 12-1017

injunction, the order has no temporal limit. It is permanent,
which would permit any ADA accommodation claim
arising at an AutoZone store in the Central District to
be raised via contempt motion no matter how remote
in time or different from the violation proven in this case.
This would indefinitely deny AutoZone the protections
of the normal administrative and adjudicative processes
in that region. We are satisfied that AutoZone has
earned this treatment for at least a reasonable time, or at
least that the district court did not abuse its discretion in
so finding, but we must remand to the district court
with instructions to modify the injunction to impose a
reasonable time limit on the first provision requiring
compliance with the ADA.

ii. Second and Third Provisions of the Injunction
AutoZone further argues that the second and third
provisions of the injunction are unwarranted because
AutoZone’s 2011 employee manual contains an ADA
policy against disability discrimination. But a mere
policy statement in an employee manual would not
have been sufficient to remedy Shepherd’s situation.
Shepherd’s requests for an accommodation were left
unresolved because of a systemic failure to properly
implement AutoZone’s established procedures. AutoZone
asserts that the facts of this case cannot justify the injunc-
tion because eight years have passed since Shepherd’s
disabling accident and many of the individuals in this
case no longer work for AutoZone, but the passage
of time and changes in management personnel do not
No. 12-1017 37

guarantee the enforcement of AutoZone’s anti-discrim-
ination procedures. By requiring AutoZone to notify the
EEOC of employees seeking accommodations and to
record its responses to these requests in writing,
the injunction ensures that AutoZone will implement the
anti-discrimination procedure it purports to follow.
Finally, AutoZone asserts that the injunction is too
broad because it applies to all stores throughout the
Central District of Illinois, but the magistrate judge ap-
propriately crafted the scope of the injunction because
AutoZone’s problem was not limited to just Shepherd’s
store.
Overall, the first provision of the injunction should
have a reasonable time limit, which the second and
third provisions already contain. Therefore, we remand
the first provision of the injunction but affirm the
second and third provisions.

4. Award of Costs
Finally, AutoZone argues that we should reinstate the
award of costs to AutoZone that the magistrate judge
vacated after the second trial. We review a district court’s
award of costs for abuse of discretion. Beamon v. Marshall
& Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005).
After the first trial, the magistrate judge entered an
award of costs to AutoZone because it was the prevailing
party under Federal Rule of Civil Procedure 54(d). But
because the second jury reached a verdict in favor of the
EEOC and imposed $715,000 in damages on AutoZone
38 No. 12-1017

(later remitted to $415,000), the magistrate judge ruled
that the EEOC was the new prevailing party. The magis-
trate judge therefore vacated the prior award of costs.
See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (de-
fining “prevailing party”); Republic Tobacco Co. v. N. Atl.
Trading Co., 481 F.3d 442, 446-47 (7th Cir. 2007).
AutoZone challenges the magistrate judge’s decision
to vacate the prior order by arguing that the EEOC for-
feited any challenge to the magistrate judge’s award of
costs when the EEOC did not object to the award
after the first trial. AutoZone relies upon several cases
holding that an issue that was forfeited on an initial
appeal cannot be raised on a second appeal. E.g., United
States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (“A
party cannot use the accident of a remand to raise in a
second appeal an issue that he could just as well have
raised in the first appeal because the remand did not
affect it.”). But this legal principle is not applicable to
Shepherd’s case. The EEOC did not object to the
magistrate judge’s initial award of costs because the
EEOC was not the prevailing party after the first trial.
Instead, the EEOC motioned the magistrate judge to
vacate the award of costs at the appropriate time—after
the second jury issued its verdict making the EEOC the
new prevailing party. The magistrate judge’s decision
was not an abuse of discretion, but the proper applica-
tion of Federal Rule of Civil Procedure 54(d). We there-
fore decline to reinstate the award of costs.
No. 12-1017 39

III. Conclusion
The magistrate judge properly upheld the second
jury’s verdict. The first trial did not preclude the
second jury from reaching its verdict, and we therefore
affirm the magistrate judge’s ruling denying AutoZone’s
motion for judgment as a matter of law. We also affirm
the magistrate judge’s decision to deny AutoZone’s
motion for a new trial because Dr. Katchen did not need
to submit a written report.
Most of the remedies resulting from the second
trial remain in place. We uphold the $100,000 award of
compensatory damages because it is not excessive
when compared to Shepherd’s pain and suffering. We
also uphold the $200,000 in punitive damages because
the jury heard sufficient evidence of AutoZone’s
reckless indifference to Shepherd’s federal employment
rights and because the award is not grossly excessive
under the Due Process Clause. Furthermore, we uphold
the second and third provisions in the injunction
because the district court properly used its discretion
to create a remedy that addressed AutoZone’s short-
comings. But we remand the first provision of the injunc-
tion for the judge to impose a reasonable time limit
on this provision. Finally, we affirm the magistrate
judge’s decision to vacate his prior award of costs
to AutoZone.
We therefore A FFIRM the magistrate judge’s rulings,
with the exception of the first provision of the injunc-
tion, which we R EMAND for further proceedings. The
entire injunction, including the remanded first provi-
40 No. 12-1017

sion, remains in effect pending the district court’s deci-
sion imposing a time limit for the first provision.

2-15-13