In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3028
D ANIELLE L. P ICKETT,
Plaintiff-Appellee,
v.
S HERIDAN H EALTH C ARE C ENTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07-C-1722—Rebecca R. Pallmeyer, Judge.
A RGUED JANUARY 20, 2010—D ECIDED JUNE 25, 2010
Before F LAUM, K ANNE, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Defendant-appellant Sheridan
Health Care Center (“Sheridan,” “the Center”) appeals
from an order denying its motions for a new trial and
remittitur. A jury found that Sheridan fired plaintiff-
appellee Danielle L. Pickett in retaliation for her
repeated complaints about sexual harassment by
residents of the defendant’s nursing home. The jury
awarded $15,000 in compensatory damages and $50,000
in punitive damages for this violation of Title VII. For
the following reasons, we affirm.
2 No. 09-3028
I. Background
Plaintiff-appellee Danielle L. Pickett is a thirty-one
year-old woman who resides in Zion, Illinois. She began
working for Sheridan on January 10, 2005, first as a dietary
aide and then, starting in September 2005, as a house-
keeper. Between November 2005 and January 2006, resi-
dents of the nursing home twice made lewd re-
marks and inappropriately touched Pickett while she
was cleaning their rooms. Pickett notified her super-
visor, who said that Pickett should no longer clean those
residents’ rooms alone and should instead request a
security escort prior to entering the problem quarters.
Pickett testified, however, that Sheridan staff always
claimed to be busy when she needed their assistance
and that she began to clean the individuals’ rooms only
when she could first spot them occupied elsewhere in
the facility.
On June 24, 2006, a third incident took place where a
resident cornered and groped Pickett. The following
day, unbeknownst to Pickett, Julie Stangel, the Assistant
Director of Nursing at Sheridan, reported the events to
Zion police. Officers came out to the home to speak to the
appellee, but she declined to file a police report after
receiving assurance from one Ms. Paynter, the Vice Presi-
dent of Operations (whose first name appears nowhere
in the record), that the offending resident would be
moved out of the Center. After the meeting, Paynter sent
Pickett home two hours before her shift was sched-
uled to end.
On June 27, 2006, Pickett met with several individuals
to discuss the third incident and attempt to find a way
No. 09-3028 3
to remedy the persistent harassment. Present for the
discussion were Paynter; Diane Lee, Pickett’s union
stewart representative (Pickett testified that she asked
Lee to attend because she was intimidated by the
meeting); Craig Barnes, Pickett’s direct supervisor; and
Paul Ross Zeller, Sheridan’s Administrator. Zeller and
Paynter did most of the talking; Pickett testified that
they suggested she invited the conduct. In particular,
Paynter commented “well, you are a pretty girl, what
are you doing to make them want to touch you?” Ac-
cording to Pickett, Paynter also claimed that because the
first resident only asked appellee for sexual favors and
did not attempt to grab her, the encounter did not
amount to sexual harassment. The meeting concluded
with the participants agreeing to reassign Pickett from
cleaning the residents’ rooms to taking care of the
common areas on the first floor. No one mentioned the
possibility of disciplinary action against appellee.
When Pickett came in to work at 7:30 a.m. the next
morning on June 28, she asked Zeller to help her retrieve
a vacuum cleaner. She then asked to speak to Zeller
about the steps Sheridan has taken to protect her from
harassment by residents. Appellee and Zeller continued
this discussion in Zeller’s office, where Pickett stated
that she was not satisfied with the remedial measures
implemented by Sheridan in response to the June 24
incident and its precursors. Zeller and Pickett provided
conflicting testimony about what was said during the
meeting, but both agree that Pickett complained that the
assailant from June 24 was still in the facility despite
Paynter’s promise to remove him. At some point, Pickett
told Zeller: “You’re treating this like a store where the
4 No. 09-3028
customer is always right. This is not right.” According to
Pickett, Zeller responded “maybe you should go and
clean some stores.” Zeller denies saying this. Pickett also
testified that Zeller said: “[T]his [Sheridan] is their home.
I mean nothing is going to change,” though Zeller could
not recall at trial whether he actually made the last
remark. Pickett then became upset and began to cry
because she feared that her job was in jeopardy. She told
Zeller that her children were depending on her and that
she did not want to lose her job.
At that point, the meeting ended and Zeller went out
into the hall to open the storage closet to give Pickett
the vacuum cleaner. She was still in tears when he
walked away. A few minutes later, Zeller called the
receptionist to ask if she had seen Pickett. The receptionist
said “no,” but called Zeller soon thereafter and said
that Pickett had just left the building. The Sheridan em-
ployee handbook prohibits workers from walking off
the premises while on the clock.
The next day, on June 29, 2006, Pickett called Zeller to
clarify her employment status. She said that she under-
stood it was wrong for her to have left the building, but
that she did so only because she was upset. Appellee
stated that she did not want to lose the job. Zeller re-
sponded by commenting “[y]ou did walk off the job,”
though he testified that he meant the phrase as a question.
Pickett in turn asked, “Well, have I been fired or not?”
Zeller said he would check with Paynter and call Pickett
back. After conferring with the vice president of opera-
tions, Zeller phoned appellee on June 30, 2006, and said
No. 09-3028 5
that the two managers came to a conclusion that “it was
best she part ways with the company.” At trial, Zeller
testified that he believed that Pickett had abandoned
her job; while he knew about her financial situation,
Zeller did “not believe at that period of time it was in
either of our interests for her to continue working at
Sheridan.” Prior to June 28, 2006, Pickett had no infrac-
tions at work.
Pickett filed a discrimination claim with the Equal
Employment Opportunity Commission (EEOC) on July 7,
2006. According to Zeller, around July 28, 2006, about a
week after receiving notice of this claim, Sheridan or its
attorneys offered to allow Pickett to return to her
former employment. The offer was not conditioned on
appellee dropping her legal claim, but she refused it. At
trial, Pickett explained that she turned the offer down
because it did not include back pay and because she was
unsatisfied with Sheridan’s approach to reducing
her potential exposure to further offensive behavior.
Appellant repeated the offer on August 23, 2006, and
again on September 25, 2006, but Pickett refused each
time. Pickett finally accepted the offer on January 9, 2007,
and returned to work on January 23, 2007. She continues
to work at the Center.
During the trial, Pickett testified about the inconve-
nience, emotional suffering, and loss of enjoyment of life
that she experienced as a result of the discharge. She
held some odd jobs between June 30, 2006 and January 23,
2007, but could not find permanent employment
despite contacting the Illinois Department of Employ-
ment Security for assistance. Her job search was
6 No. 09-3028
hampered by the fact that she did not have a car (she
moved to Zion so she could walk to work). As a result of
unemployment, Pickett was nearly evicted from her
apartment, could not pay her bills, and had to rely on
charities for food, clothing, and Christmas gifts for her
children. Her gas and electricity were eventually turned
off and her phone disconnected.
Pickett also testified that some years earlier, her
fiancé had been shot to death in a drive-by shooting on
their son’s sixth birthday. Their residence then col-
lapsed “and her family lost everything but the clothes”
on their backs. Pickett explained that despite these hard-
ships, she did not want to go on Public Aid because
she could and wanted to work. During her period of
unemployment, she felt badly when her children would
see her crying and ask “when are you going to work?”,
but did not seek medical attention for emotional dis-
tress. After Pickett returned to work, both the union
representative and the Sheridan receptionist stopped
talking to her. Other individuals continued to joke about
the situation in a way that appellee found offensive.
Sheridan employs about 230 people at the Zion facility.
Prior to Pickett’s termination, it had posted the requisite
information about federal employment discrimination
laws on its walls. It also supplied employees with
a handbook detailing its own employment and anti-retali-
ation policies.
Pickett originally sued Sheridan for one count of sexual
harassment and one count of retaliatory firing. Fol-
lowing discovery, defendant-appellant moved for sum-
No. 09-3028 7
mary judgment. The district court awarded Sheridan
summary judgment on Pickett’s sexual harassment claim
because the company promptly reacted to complaints
in a way reasonably calculated to prevent recurrence of
bad conduct. The court denied summary judgment on
the retaliation claim because the parties still disagreed
sharply about whether Pickett was fired for her inability
to handle the harassment.
After a trial, the jury returned a verdict for plain-
tiff-appellee. It awarded $15,000 in compensatory
damages and $50,000 in punitive damages. Sheridan
moved for a new trial pursuant to Federal Rule of Civil
Procedure 59(a), claiming that: (1) evidence of retalia-
tion was insufficient to support the jury’s verdict; (2) that
it could not be liable for retaliation as a matter of law
because the harassment took place at the hands of
third-party non-employees; (3) that the admission of
evidence pertaining to details of the third-party con-
duct animating Pickett’s sexual harassment claim
was erroneous and prejudicial; and (4) that statements
by plaintiff’s counsel about the minor impact an award
of several thousand dollars would have on the defendant
improperly influenced the jury. Judge Pallmeyer re-
jected each of these arguments. Sheridan also argued that
Pickett did not provide evidence to support an award of
compensatory damages and that the punitive damages
award was both excessive and unsupported by law. The
district court did not agree with these assertions either
and denied remittitur. Instead, the district court awarded
Pickett back pay in addition to the verdict amounts and
permanently enjoined Sheridan from retaliating against
8 No. 09-3028
her. Judge Pallmeyer also mandated that Sheridan
remove all references to the lawsuit and Pickett’s prior
complaints about sexual harassment from her employee
file. Sheridan appeals.
II. Discussion
Appellant attacks the judgment of the district court
primarily by reiterating claims it made in its Rule 59(a)
motion for a new trial. Sheridan thus argues that
(1) “reporting the behavior of third-party non-employees
is not opposition directed at an employment practice of
the employer” because third parties are not agents of the
employer for Title VII purposes; (2) there was insufficient
evidence to support the jury verdict that Pickett was
fired because of her complaints and not because she
walked off the job; (3) that plaintiff’s counsel improperly
asked the jury to “send a message” and invoked the
conduct underlying the complaint even though summary
judgment established that the incidents were not them-
selves actionable; (4) that “[p]laintiff’s damages evidence
was insufficient to support anything more than a nominal
damages award” because “she would not have had finan-
cial difficulties . . . had she accepted” Sheridan’s offer to
return in July; (5) that Sheridan could not be found to
display reckless indifference or malice towards federally
protected rights sufficient to support an award of punitive
damages; and (6) that Exxon Shipping Co. v. Baker, 128 S. Ct.
2605 (2008) should be extended to the present case to
limit the amount of punitive damages to that equal to
compensatory damages.
No. 09-3028 9
A. Theory of Liability and Sufficiency of the Evidence
We review pure questions of law de novo. Thomas v.
GMAC, 288 F.3d 305, 307 (7th Cir. 2002). We uphold a
jury verdict on appeal as long as a reasonable basis exists
in the record to support this verdict. Moore v. Tuleja, 546
F.3d 423, 427 (7th Cir. 2008). The standard of review for a
denial of a motion for a new trial is abuse of discretion.
Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004). That
is, we reverse only if “the verdict is against the weight of
the evidence, the damages are excessive, or if for other
reasons the trial was not fair to the moving party.” Emmel
v. Coca-Cola Bottling Co., 95 F.3d 627, 636 (7th Cir. 1996).
“Moreover, we are particularly careful in employment
discrimination cases to avoid supplanting our view of
the credibility or weight of the evidence for that of both
the jury (in its verdict) and the judge (in not interfering
with the verdict).” Hybert v. The Hearst Corp., 900 F.2d
1050, 1054 (7th Cir. 1990).
At the outset, we remark that appellant expends sig-
nificant energy developing a legal argument that is tangen-
tial to the matter before us. The parties agree that Pickett
suffered sexual harassment at the hands of residents, and
they also agree that the district court properly found
that liability for the acts could not attach to Sheridan
because the Center took prompt remedial steps. In its
order granting partial summary judgment for appellant,
the district court further remarked that the resi-
dents’ offensive conduct may have fallen short of the
severity threshold necessary to state a claim of harass-
ment against a nursing home. See, e.g., Cain v. Blackwell,
246 F.3d 758, 760 (5th Cir. 2001).
10 No. 09-3028
Sheridan attempts to assemble these findings and
assorted snippets of case law into a conclusion that
because Pickett’s suffering stemmed from the actions of
third parties that were not agents of Sheridan, Pickett’s
complaints were not protected expression under 42
U.S.C. § 2000e-3(a). In the absence of such expression,
appellant reasons, there could be no impermissible re-
taliatory firing—only a dismissal not subject to Title VII
scrutiny. It supports this conjecture with out-of-
circuit cases explaining that ‘[c]omplaining about an
entity’s “actions outside the ambit of an employment
practice is unprotected by Title VII.” ’ Bakhtiari v. Lutz,
507 F.3d 1132, 1137 (8th Cir. 2007); see also Lockridge v. HBE
Corp., 543 F. Supp. 2d 1048, 1060 (E.D. M o. 2008) (affirming
summary judgment for defendant hotel by reasoning
that “not every complaint about conditions in the work-
place, legitimate or otherwise, constitutes a protected
activity; retaliation in response to an activity that is not
protected does not support a retaliation claim.”). Tellingly,
the Lockridge court made the above statement only
after observing that “[a]n informal . . . complaint about,
or in opposition to, an employer’s practice or act . . .
[may constitute a protected activity] if the employee
reasonably believes such an act to be in violation of the
statute in question.” Id. (citing Jeseritz v. Potter, 282 F.3d
542, 548 (8th Cir. 2002)).
So, while appellant asks us to conclude that “[t]he
statutory language is unambiguous and, thus, should
end the inquiry,” its attempt to demand that a plaintiff
demonstrate actual employer liability for conduct that
may motivate her complaint before the plaintiff could
No. 09-3028 11
recover for a retaliatory firing based on such a com-
plaint does not comport with existing Title VII law in this
and other circuits. To prevail on a retaliatory firing
theory at trial, an employee needs only to prove that an
employer subjected her to an adverse employment
action because she had engaged in a statutorily pro-
tected activity. Gates v. Caterpillar, Inc., 513 F.3d 680, 686
(7th Cir. 2008).
Besides being inapplicable, the limiting principle
Sheridan seeks to evoke is invalid. Our prior decisions
have repudiated the idea that sexual harassment is ac-
tionable only when committed by employees and have
extended employer liability to some actions by “unaffili-
ated” third parties. See Erickson v. Wis. Dep’t of Corr., 469
F.3d 600, 606 (7th Cir. 2006) (holding that an employer
may be “liable under Title VII’s negligence standard if it
‘failed to discover and prevent’ sexual harassment of an
employee giving rise to a hostile work environment” where
managers failed to keep a prisoner who ended up
raping Erickson out of her workspace despite promises
to do so); see also Lapka v. Chertoff, 517 F.3d 974, 984 n.2
(7th Cir. 2008) (“Employer liability can be imposed when
the harassment is committed by co-workers or by third
parties.”).
Thus, the legal question before us is whether Pickett
presented sufficient evidence to establish that Sheridan
fired her in retaliation for protected conduct. “Title VII
makes it unlawful for any employer to discriminate
against an employee for opposing a practice made unlaw-
ful by the Act. To prove a case of retaliation, a plaintiff
12 No. 09-3028
must show: (1) she engaged in statutorily protected
expression; (2) she suffered an adverse action at the
hands of her employer; and (3) there was a causal link
between the two.” Fine v. Ryan Int’l Airlines, 305 F.3d
746, 751-52 (7th Cir. 2002) (citations omitted). Under
appellee’s theory of the case, the protected expres-
sion in question were her complaints about Sheridan’s
unwillingness to adequately redress behavior she viewed
as illegal sexual harassment. See Dey v. Colt Constr. & Dev.
Co., 28 F.3d 1446, 1450 (7th Cir. 1994). “We have re-
peatedly held that a plaintiff need not prevail on her
Title VII discrimination claim or have opposed an action
that in fact violated Title VII to win a retaliation claim.
All that is required is that ‘she reasonably believed in
good faith that the practice she opposed violated Title
VII.’ ” Fine, 305 F.3d at 752. We agree with the district
court that the “[t]he issue for the jury is what actually
motivated the defendant to terminate her employment;
in this case, the jury was entitled to disbelieve [d]e-
fendant’s witnesses and conclude that its motivation
was in fact retaliatory.”
The case came down to a choice between trusting Zeller
or Pickett. If the jury favored Zeller’s version of the
events, it would have found that Pickett walked out on
her job in violation of written policy after an entirely
neutral conversation with her boss. As such, Sheridan
would not be liable under Title VII because it fired the
appellee for breaking the rules, not for protected expres-
sion. The trier of fact here chose to go the other way, but
the this choice too was supported by the weight of the
evidence. The jurors were entitled to believe Pickett’s
testimony. Once they did so, they had to come up with
No. 09-3028 13
an explanation for the remark “why don’t you go clean
some stores,” as well as the generally tense atmosphere
of June 27, 2006, meeting, at which Zeller himself testi-
fied to hearing Paynter suggest that appellee was
attracting the unwelcome advances because she was
pretty. Such behavior, coupled with remarks that nothing
was going to change at Sheridan because the facility
was the culprits’ home, could certainly be read by a
reasonable jury to mean that the Center’s management
found Pickett’s complaints to be annoying and wanted
them to stop. Appellee’s testimony that she could never
find staff to escort her into the rooms of problem resi-
dents bolsters this conclusion by depicting Sheridan as
an employer increasingly reluctant to combat harass-
ment. Finally, the continued presence of the resident
responsible for the June 24 incident despite Paynter’s
promise to remove him makes more sense in light of
Pickett’s narrative, where Sheridan management became
increasingly recalcitrant about looking for ways to
protect Pickett from future harassment.
A finding that appellant was fed up with Pickett for
impermissible reasons (frustration with the steady
stream of Pickett’s protected requests to curtail what she
believed to be sexual harassment) and was waiting for
an excuse to get rid of her would also explain the
peculiar developments on Tuesday, June 28, 2006. That
morning, plaintiff-appellee quickly went from being
ready to work (she asked Zeller to help her retrieve a
vacuum cleaner) to tearfully pleading to hold on to her
job (Zeller confirmed this much), all before walking out of
the Center. The fact that Pickett was already under the
14 No. 09-3028
impression that she lost her job prior to the occurrence of
the event that appellant seeks to portray as the trigger
for her termination could permissibly lead to the
inference that Sheridan’s version of the events was not
true. Finally, Zeller’s decision to confer with Paynter
about the consequences of Pickett’s actions prior to
telling appellee that “it is best she part ways” with the
company could arouse suspicion in the mind of a rea-
sonable juror about whether the sudden departure of an
otherwise well-performing employee would lead to
automatic termination. If it wouldn’t in other situations,
one could conclude that here, appellant’s management
acted intentionally to strip Pickett of her job.
Together, the above pieces of testimony and accom-
panying inferences adequately substantiate the conclu-
sion that Sheridan actually fired appellee in retaliation
for protected conduct. The evidence here may not be
overwhelming, but neither is it porous enough for us to
overturn a jury verdict and a subsequent denial of a
motion for a new trial. The trier of fact may infer bad
intent even from ambiguous statements. Moreover, since
Title VII cases often turn on conflicting testimony, we
have consistently held that “circumstantial evidence that
is relevant and probative on any of the elements of a
direct case of retaliation may be admitted and, if proven
to the satisfaction of the trier of fact, support a case of
retaliation.” Treadwell v. Office of Ill. Sec’y of State, 455 F.3d
778, 781 (7th Cir. 2006) (citing Sylvester v. SOS Children’s
Vills. of Illinois, 453 F.3d 900, 902 (7th Cir. 2006)). As we
have explained, “[e]mployment discrimination cases in
particular often involve ‘sensitive and difficult’ issues of
No. 09-3028 15
fact. Plaintiffs often have great difficulty in gathering
information and can present only circumstantial evi-
dence of discriminatory motives. The credibility of wit-
nesses is often crucial.” Christie v. Foremost Ins. Co., 785
F.2d 584, 586 (7th Cir. 1986). Given these considerations,
the case presented by Pickett is enough to support the
verdict.
Sheridan argues that appellee improperly characterized
its stated reasons for terminating the employment rela-
tionship as pretextual. Specifically, appellant cites an
Eastern District of Texas case for the proposition that
Title VII requires plaintiffs to establish that protected
activity was a “but for” cause of the adverse employment
action before they can recover for retaliatory firing. See
Beaumont v. Tex. Dep’t Of Criminal Justice, 468 F. Supp. 2d
907, 922 (E.D. Tex. 2006). Sheridan also asserts that “ ‘a
plaintiff employee may not establish that an employer’s
proffered reason is pretextual merely by questioning
the wisdom of the employer’s reason’ as long as ‘the
reason is one that might motivate a reasonable em-
ployer.’ ” Birks v. Jack Ingram Motors, Inc., 346 F. Supp. 2d
1216, 1224 (M.D. Ala. 2004). Both decisions are not
binding on this court. Moreover, they do not require
anything that Pickett did not prove. See Speedy v. Rexnord
Corp., 243 F.3d 397, 406 (7th Cir. 2001); McNutt v. Board of
Trustees, 141 F.3d 706, 707-08 (7th Cir. 1998) (“In order to
prove a Title VII violation (and thereby recover any relief)
based on retaliation, Price Waterhouse still requires plain-
tiffs to establish that the alleged discrimination was the
‘but for’ cause of a disputed employment action.”); cf. 42
U.S.C. § 2000e-2(m); Serwatka v. Rockwell Automation, Inc.,
16 No. 09-3028
591 F.3d 957, 959, 962-63 (7th Cir. 2010). As explained
above, the testimony presented at trial allowed a rea-
sonable jury to infer that appellee’s complaints irritated
Sheridan’s management to the point that appellant
sought to dismiss Pickett. Appellee had the right to
establish this version of the events by presenting “a ‘con-
vincing mosaic’ of circumstantial evidence . . . .” Rhodes v.
Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004). Her
testimony at trial satisfied the requirement of establishing
a causal link between the protected conduct and the
adverse action that our precedent demands. See Gates, 513
F.3d at 686; Metzger v. Ill. State Police, 519 F.3d 677, 681 (7th
Cir. 2008); cf. Hennessy v. Penril Datacomm Networks,
69 F.3d 1344, 1351 (7th Cir. 1995) (“Penril asserts
Hennessy was required to prove ‘but for’ causation as a
prerequisite to obtaining back pay pursuant to 42 U.S.C.
§ 2000e-5(g)(2)(A). This assertion is mistaken. The 1991
Civil Rights Act amended Title VII to include an affirma-
tive, but for, defense for the employer. If an employer
proves that the same employment decision would have
been made absent an illegal motivation, a plaintiff’s
remedies are limited. 42 U.S.C. § 2000e-5(g)(2)(B). In short,
the 1991 Act provides that to avoid back pay and rein-
statement, the employer, not the employee, must demon-
strate that the employment decision would have
occurred absent the impermissible motivating factor.”).
The jury found Pickett’s proof persuasive and the record
is not so sparse that we must second-guess its decision
here. Like the district court, we see no reason why
Sheridan’s version of the events had to trump Pickett’s as
a matter of law. See Paz v. Wauconda Healthcare & Rehab.
No. 09-3028 17
Centre, LLC, 464 F.3d 659, 665-66 (7th Cir. 2006) (reversing
grant of summary judgment in favor of an employer who
claimed that she fired plaintiff for a variety of substantive
transgressions when other evidence pointed at a distaste
for Mexican workers and pregnant women as the driving
factor); Emmel, 95 F.3d at 633 (“Second, just because
[an employer] articulated a nondiscriminatory reason
[for denying a promotion to a woman], the jury did not
have to believe it.”).
Sheridan attempts to justify its position that Pickett
could not have proven that she was fired in retaliation for
her complaints by pointing to statements like “an em-
ployee’s complaint of harassment does not immunize
h[im] from being subsequently disciplined or terminated
for workplace behavior.” Bernier v. Morningstar, Inc., 495
F.3d 369, 376 (7th Cir. 2007). Bernier, however, affirmed
summary judgment for the defendant where plaintiff
communicated his concern about potential sexual harass-
ment by a gay co-worker by sending said gay co-worker
the following anonymous instant message (IM): “Stop
staring! The guys on the floor don’t like it.” We did not
consider this to be protected communication within the
meaning of Title VII because anonymous IMs were not
the method of reporting sexual harassment Morningstar
prescribed. By contrast, when the receiving co-worker
contacted both his immediate supervisor and the HR
department to report that he took the message itself to
be sexual harassment, he followed the prescribed proce-
dures to the tee. Later, Bernier (the plaintiff) lied about
sending the IM, so we saw nothing wrong with
Morningstar firing him. The line cited by appellants
18 No. 09-3028
must be read in context, where it described a complaint
that was not itself protected expression. Sheridan
does not claim, nor could it reasonably do so, that
Pickett’s communications were similarly deficient.
Similarly, Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th
Cir. 2000), does not advance appellant’s case. The
relevant part of that decision affirmed summary
judgment for defendant employer in a retaliatory firing
case predicated entirely on suspicious timing. We rea-
soned: “Here, the protected expression, Ms. Paluck’s
sexual harassment complaint, occurred nearly a full year
before her termination. That interval, standing alone, is
too long for the timing of Ms. Paluck’s firing to raise an
inference of discrimination.” Id. at 1010. After making
this observation, we went on to note that our conclu-
sion does not change merely because Gooding Rubber
noted true disciplinary issues with Paluck at around
the time she made her harassment complaint.
In Heis’ memoranda, he made two allegations about
Ms. Paluck’s behavior: that she had problems with
attendance and tardiness, and that she spent too
much time on personal phone calls. In Ms. Paluck’s
response to Heis’ charges against her, she conceded
that his first allegation was accurate, and she
did not rebut his second allegation. In this court, she
does not deny the truth of Heis’ allegations.
Ms. Paluck’s filing of a discrimination complaint
does not prevent her employer from issuing written
charges against her when her conduct warranted
disciplinary action. Because it is undisputed that
No. 09-3028 19
Ms. Paluck’s actions justified disciplinary measures,
we do not think a discriminatory motive reasonably
may be inferred from Heis’ taking such measures.
Thus, even if Mork did rely on Heis’ memoranda to
terminate Ms. Paluck, no reasonable finder of fact
could conclude that his decision to do so created a
situation in which retaliatory motive caused
Ms. Paluck’s dismissal.
Id. at 1011 (citations omitted).
Paluck shows that an inquiry into whether bad intent
may be inferred for purposes of Title VII is inherently fact-
dependent. Judge Pallmeyer carefully heeded such in-
structions in evaluating appellant’s motion for a new
trial. As explained above, we agree that unlike the plain-
tiff in Paluck, Pickett presented enough evidence to per-
suade a reasonable jury that her complaints caused
Sheridan to fire her. That case differs from the present
matter in at least one important way: appellee here vigor-
ously disputed that she violated Sheridan’s workplace
rules prior to being dismissed, whereas Paluck readily con-
ceded as much. While appellee acknowledged that it was
“wrong” for her to walk out of the Center on June 28,
2006,1 she presented a compelling case that she had
1
Pickett did not elaborate on why she perceived her actions to
be problematic, and defense counsel did not press her on the
issue. Thus, we cannot determine whether appellee was con-
cerned that she was violating the Sheridan employee hand-
book rules, acting overly emotional at work, or perhaps not
(continued...)
20 No. 09-3028
already been terminated by that point in time in her
meeting with Zeller. Paluck does not dictate a result of the
present litigation and the district court did not abuse
its discretion when it declined to disturb the jury verdict.
B. Improper Statements of Counsel
Sheridan next argues that comments made by Pickett’s
counsel were sufficiently prejudicial to warrant a new
trial. Appellant presented this point in its Rule 59(a)
motion to no avail, so we again review for abuse of dis-
cretion. Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 636
(7th Cir. 1996). Furthermore, we have repeatedly stated
that comments made by attorneys during closing argu-
ments rarely rise to the level of reversible error. See, e.g.,
Miksis v. Howard, 106 F.3d 754, 764 (7th Cir. 1997); Moylan
v. The Meadow Club, 979 F.2d 1246, 1250-51 (7th Cir. 1992).
The allegedly problematic remarks here are actually
quite benign. For example, Sheridan argues that plaintiff’s
counsel improperly appealed to the sympathy of the
jury by referencing the underlying sexual harassment
conduct that the district court previously held to be
inactionable. The actual references were brief and only
served to provide the jurors with a summary of the
1
(...continued)
fighting harder to persuade Zeller to let her keep her job. A
person’s actions can be “wrong” with respect to various base-
lines, and the record before us leaves room for speculation
about which was implicated most closely on June 28, 2006.
No. 09-3028 21
context in which appellant and appellee parted ways.
The closing did not run afoul of Judge Pallmeyer’s ruling
on a motion in limine; moreover, appellant did not con-
temporaneously object to the statements, forfeiting
(and possibly waiving) its current position. See United
States v. Olano, 507 U.S. 725, 733 (1993); Gonzalez v. Volvo
of America Corp., 752 F.2d 295, 298 (7th Cir. 1985 (per
curiam) (“[D]efendant-appellant waited until the jury
had returned an unfavorable verdict to complain to the
trial court that plaintiffs’ closing argument had been
improper. Perhaps defendant-appellant feared that a
contemporaneous objection would incur hostility from
the jury. This court need not speculate as to the nature
of defendant-appellant’s motives. Suffice it to note, how-
ever, that risky gambling tactics such as this are usually
binding on the gambler. This court has not hesitated in
the past to bind a party to its strategic decision to sit
silent in the face of claimed error by refusing relief
when the party complains because the result is unfavor-
able.”).
The same goes for the statement “you’ve got to send
some message to this employer that they shouldn’t do
this kind of thing again.” The language is not prejudicial;
Title VII, a statute designed to prevent retaliatory firings,
allows plaintiffs to recover damages precisely to deter
employers from repeating infractions in the future. Thus,
cases like Adams Laboratories, Inc. v. Jacobs Engineering Co.,
761 F.2d 1218, 1224-25 (7th Cir. 1985), which hold that
counsel may not bring up a wealth or size disparity
between the plaintiff and defendant where no part of the
action implicates these issues, do not position this case
22 No. 09-3028
as an exception to the rule that counsel’s comments
during closing generally do not justify reversal of a com-
pensatory damages award. Judge Pallmeyer instructed
jurors that statements made by attorneys are not
evidence and we, like she, presume that juries follow
instructions. Thomas v. Cook County Sheriff’s Dep’t,
No. 08-2232, 2009 U.S. App. LEXIS 29046 at *44 (7th Cir.
May 3, 2010); Chlopek v. Fed. Ins. Co., 499 F.3d 692, 702
(7th Cir. 2007). We are therefore confident the district
court did not abuse its discretion in denying the motion
for a new trial on the basis of appellee’s closing arguments.
C. Compensatory Damages
Sheridan argues that Pickett was not entitled
to damages because she lacked any medical evidence
showing emotional distress and her claim that she ran
out of money was premised only on her own testimony.
We review an order refusing remittitur for abuse of
discretion. David v. Caterpillar, Inc., 324 F.3d 851, 864 (7th
Cir. 2003). We evaluate an award of compensatory dam-
ages by asking (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. See EEOC v. AIC Sec. Investigations, Ltd.,
55 F.3d 1276, 1285 (7th Cir. 1995). Sheridan’s position that
Pickett could not have established emotional distress
without corroborating evidence from a third party finds
no support in our precedent. See Tullis v. Townley Eng’g &
Mfg. Co., 243 F.3d 1058, 1068 (7th Cir. 2001) (“[A]n award
No. 09-3028 23
for nonpecuniary loss can be supported, in certain circum-
stances, solely by a plaintiff’s testimony about his or her
emotional distress.”); see also Deloughery v. City of Chicago,
422 F.3d 611, 620 n.5 (7th Cir. 2005) (noting that a jury
is entitled to conclude that plaintiff need not consult a
mental health professional to establish emotional dis-
tress); Merriweather v. Family Dollar Stores, Inc., 103 F.3d
576, 580-81 (7th Cir. 1996) (holding that plaintiff’s testi-
mony alone may support an award for emotional dis-
tress). Pickett testified that she was very upset by how
Sheridan treated her, felt embarrassed talking to her
children, and nearly became homeless as a result of her
discharge. This evidence is enough to support a jury
award of $15,000, which is well within the $200,000 cap
set out in 42 U.S.C. § 1981a(b)(3)(C) and the benchmarks
set out by other improper termination cases. See, e.g.,
Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 704,
714 (7th Cir. 2004) (upholding compensatory awards of
$50,000, $100,000, and $150,000 for retaliatory firings);
Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 484 (7th Cir.
2003) (upholding award of $75,000 where plaintiff found
a new job within two months). The district court did not
abuse its discretion in denying remittitur on the com-
pensatory damages.
D. Punitive Damages
Sheridan concludes by arguing that “[t]his case comes
nowhere near the class of employment discrimination
cases in which punitive damages are appropriate”
because the record contains no evidence of Sheridan’s
24 No. 09-3028
malice or reckless indifference to federally protected
rights. Instead, appellant claims it reasonably believed
that it could terminate Pickett for walking out on her job,
which would put it under the protective umbrella of
Kolstad v. American Dental Association, 527 U.S. 526, 537
(1999) (finding punitive damages inappropriate where
“the employer discriminates with the distinct belief that
its discrimination is lawful”). We again review the
district court’s denial of remittitur for abuse of discretion.
David v. Caterpillar, Inc., 324 F.3d 851, 864 (7th Cir. 2003).
The district court examined only whether the punitive
damages award is consistent with what the evidence
would permit a rational jury to find. See Alexander v. City
of Milwaukee, 474 F.3d 437, 454 (7th Cir. 2007). It used
the appropriate legal standard, searching for malice or
reckless indifference. 42 U.S.C. § 1981a(b)(1). Courts
have read this language to mean that “an employer
must at least discriminate in the face of a perceived risk
that its actions will violate federal law to be liable in
punitive damages.” Kolstad, 527 U.S. at 536. Judge
Pallmeyer found that Sheridan crossed this line:
[T]he jury’s verdict for Pickett on her retaliation
claim reflects that it did not believe Sheridan termi-
nated Pickett for a legitimate reason. Moreover, the
jury heard testimony that information on federal
employment discrimination law was posted in
Sheridan’s building, and was directed to Sheridan’s
anti-retaliation policy. From this evidence, as well
as the short time between notice to Sheridan of
Pickett’s EEOC charge and Sheridan’s first offer of
No. 09-3028 25
reinstatement, it was not unreasonable for the jury
to conclude that Sheridan knew it might be re-
taliating against Pickett in violation of federal law
when it decided to terminate her.
This reasoning falls within the spectrum of discre-
tion allotted to the district court. Pickett did seem to be
presenting some problems for Sheridan, so it is unsur-
prising that the Center would want to part ways with
appellee. Moreover, appellant’s posting of the mandatory
EEOC notice on its walls cannot alone act as sufficient
foundation for an inference of bad intent. Holding other-
wise would mean that every law-abiding employer
would have the requisite mens rea for a punitive damages
award.
On the other hand, appellant in this case was aware
that Pickett’s complaints were likely to be protected
expression under Title VII because it attempted to
curtail the underlying harassment. As we explained
above, the jury could have reasonably concluded that
these attempts were the sole cause of the friction
between Sheridan and Pickett, and that Sheridan was
waiting for an opportune moment to push Pickett out.
See, e.g., Emmel, 95 F.3d at 636 (“To prevail only requires
that the plaintiff have proven that intentional unlawful
discrimination was more likely than not the reason under-
lying the adverse employment decision in question.”). This
conclusion would explain why when Pickett started
crying and pleading to keep her job on the morning of
June 28, 2006 (prior to walking out of Sheridan), Zeller
did not reassure her that she was still employed at the
26 No. 09-3028
Center. A district court does not abuse its discretion
when it chooses one of two plausible theories.
Finally, appellant asks us to extend Exxon Shipping Co. v.
Baker, 128 S. Ct. 2605 (2008), to mandate a one-to-one
ratio between compensatory and punitive damages in
this case. The logic of Baker does not apply to this Title VII
case. Accordingly, we affirm the district court’s denial
of remittitur on the punitive damage award.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s denial of Sheridan’s motions for a new trial and
remittitur.
6-25-10