Lust, Tracey v. Sealy, Incorporated ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3496
TRACEY LUST,
Plaintiff-Appellee,
v.
SEALY, INC.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-C–50—Barbara B. Crabb, Chief Judge.
____________
ARGUED MARCH 31, 2004—DECIDED SEPTEMBER 7, 2004
____________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Tracey Lust sued her employer,
Sealy, the mattress manufacturer, for sex discrimination in
violation of Title VII. A jury returned a verdict in her favor,
awarding her $100,000 in compensatory damages and $1
million in punitive damages. Pursuant to 42 U.S.C.
§ 1981a(b)(3)(D), which places a ceiling of $300,000 on the
total damages that may be awarded in an employment dis-
crimination case against the largest employers (a category
that includes Sealy), White v. Burlington Northern & Santa Fe
Ry., 364 F.3d 789, 806 (6th Cir. 2004), the judge reduced the
2 No. 03-3496
total damages award to $300,000, to which she added $1,500
in back pay (which is not within the statutory meaning of
“damages,” 42 U.S.C. § 1981a(b)(2)).
Sealy attacks the judgment on a variety of grounds, not all
of which require discussion given the very full opinion by
the district judge turning down Sealy’s motion for reconsid-
eration. The ground it presses hardest is that no reasonable
jury could have found sex discrimination. But this misun-
derstands the function of appellate review of a jury verdict
by treating as gospel self-serving testimony by Sealy
managers (riven with inconsistencies, by the way) that the
jury was free to disbelieve. Sealy’s contention that “the jury
cannot be permitted to simply choose to disbelieve the
evidence offered by Sealy” is a misleading half-truth. It is
true that a plaintiff cannot prevail without offering any
evidence of his own, simply by parading the defendant’s
witnesses before the jury and asking it to disbelieve them.
That would be “a no-evidence case, and [in] such a case a
plaintiff must lose, because he has the burden of proof.”
Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7th Cir. 2002),
quoting EEOC v. G-K-G, Inc., 39 F.3d 740, 746–47 (7th Cir.
1994); see also In re High Fructose Corn Syrup Antitrust
Litigation, 295 F.3d 651, 655 (7th Cir. 2002). But if the
plaintiff offers evidence of her own, as she did here, the jury
is free to disbelieve the defendant’s contrary evidence. There
is no presumption that witnesses are truthful.
Lust was a sales representative who has been employed in
Sealy’s Madison, Wisconsin office since 1992. Her super-
visor, Scott Penters, regarded her highly. In 2000 an oppor-
tunity opened up for promotion to “Key Account Manager” in
Chicago, the key account being a mattress retailer called
Bedding Experts. The appointment would have represented a
significant promotion for Lust, who had repeatedly expressed
to Penters her avid desire to become a Key Account Manager.
No. 03-3496 3
Instead the job went to a young man. Two months later,
after Lust filed her discrimination claim with the EEOC,
Sealy offered her and she accepted a Key Account Manager’s
position in the Madison office. It is because of the short de-
lay in her obtaining the promotion that the award of back
pay was so small.
The jury’s finding that Lust was passed over because of
being a woman cannot be said to be unreasonable, which, as
Sealy fails to acknowledge, is the standard of appellate
review of jury findings. Fed. R. of Civ. P. 50(a)(1); Reynolds
v. City of Chicago, 296 F.3d 524, 526–27 (7th Cir. 2002); Hunt
v. Nebraska Public Power District, 282 F.3d 1021, 1029 (8th Cir.
2002); Swanks v. Washington Metropolitan Area Transit
Authority, 179 F.3d 929, 935 (D.C. Cir. 1999). Penters had a
history of making sexist remarks to Lust, such as “oh, isn’t that
just like a woman to say something like that,” or “you’re
being a blond[e] again today,” or “it’s a blond[e] thing.”
(Lust is blonde; Sealy points out irrelevantly that blondes
are not a statutorily protected class, which will disappoint
hair colorists.) More important, once when she expressed an
interest in a promotion even though she had just gotten
married, Penters was surprised and asked her “why Jerry
[her husband] wasn’t going to take care of” her.
Most important, Penters admitted that he didn’t consider
recommending Lust for the Chicago position because she
had children and he didn’t think she’d want to relocate her
family, though she hadn’t told him that. On the contrary,
she had told him again and again how much she wanted to
be promoted, even though there was no indication that a
Key Account Manager’s position would open up any time
soon in Madison. Realism requires acknowledgment that the
average mother is more sensitive than the average father to the
possibly disruptive effect on children of moving to another
city, but the antidiscrimination laws entitle individuals to be
4 No. 03-3496
evaluated as individuals rather than as members of groups
having certain average characteristics. City of Los Angeles v.
Manhart, 435 U.S. 702, 707-11 (1978); Peters v. Jefferson
Chemical Co., 516 F.2d 447, 451 (5th Cir. 1975). It would have
been easy enough for Penters to ask Lust whether she was
willing to move to Chicago rather than assume she was not
and by so assuming prevent her from obtaining a promotion
that she would have snapped up had it been offered to her.
Penters, it is true, didn’t decide who would be promoted
to Key Account Manager; his superior, Al Boulden, did, and
Boulden testified that he had passed over Lust for the
Chicago position because he thought her deficient in inter-
personal skills and unlikely to want to move to Chicago,
given the number of “X”’s in her relocation chart (see below).
If Penters had had no input into the decision to turn down
Lust, his sexist attitudes would be irrelevant, for in that case
they could have no causal relation to the discrimination of
which she complains. E.g., Hoffman v. MCA, Inc., 144 F.3d
1117, 1121-22 (7th Cir. 1998). But it was Penters who
recommended Lust’s male competitor for the promotion,
and although Boulden testified that he considered others for
the position, including Lust, the jury could have inferred, from
Boulden’s testimony that West “was the only one Mr.
Penters served up” and having received Penters’ recom-
mendation he “did not have to” interview anyone else for
the position, that Boulden had given great weight to Penters’
recommendation.
We are mindful that Hill v. Lockheed Martin Logistics
Management, Inc., 354 F.3d 277, 286-91 (4th Cir. 2004), holds
that a subordinate’s influence, even substantial influence,
over the supervisor’s decision is not enough to impute the
discriminatory motives of the subordinate to the supervisor;
the supervisor must be the subordinate’s “cat’s paw” for
such imputation to be permitted. That is not the view of this
No. 03-3496 5
court, even though the “cat’s paw” formula apparently
originated in our decision in Shager v. Upjohn Co., 913 F.2d
398, 404-05 (7th Cir. 1990), and has been repeated in a num-
ber of our cases. E.g., Rogers v. City of Chicago, 320 F.3d 748,
754 (7th Cir. 2003); Mateu-Anderegg v. School District of
Whitefish Bay, 304 F.3d 618, 623-24 (7th Cir. 2002); Schreiner
v. Caterpillar, Inc., 250 F.3d 1096, 1100 (7th Cir. 2001). The
formula was (obviously) not intended to be taken literally
(Sealy employs no felines), and were it taken even semi-
literally it would be inconsistent with the normal analysis of
causal issues in tort litigation. If Boulden would not have
turned down Lust for the promotion had it not been for
Penters’ recommendation, a recommendation that the jury
could reasonably find was motivated by sexist attitudes,
then Penters’ sexism was a cause of Lust’s injury, whether
or not Boulden could reasonably be thought a mere cat’s
paw. Indeed it would make this case just like Shager:
Lehnst [the ageist subordinate] did not fire Shager; the
Career Path Committee did. If it did so for reasons un-
tainted by any prejudice of Lehnst’s against older workers,
the causal link between that prejudice and Shager’s dis-
charge is severed, and Shager cannot maintain this suit
even if Asgrow is fully liable for Lehnst’s wrongdoing.
But if Shager’s evidence is believed, as in the present
posture of the case it must be, the committee’s decision
to fire him was tainted by Lehnst’s prejudice. Lehnst not
only set up Shager to fail by assigning him an unprom-
ising territory but influenced the committee’s delibera-
tions by portraying Shager’s performance to the commit-
tee in the worst possible light. Lehnst’s influence may
well have been decisive. The committee’s deliberations
on the question whether to fire Shager were brief,
perhaps perfunctory; no member who was deposed
could remember having considered the issue. A com-
mittee of this sort, even if it is not just a liability shield
6 No. 03-3496
invented by lawyers, is apt to defer to the judgment of
the man on the spot. Lehnst was the district manager; he
presented plausible evidence that one of his sales
representatives should be discharged; the committee
was not conversant with the possible age animus that
may have motivated Lehnst’s recommendation.
913 F.2d at 405 (citation omitted).
And in Maarouf v. Walker Mfg. Co., 210 F.3d 750, 754 (7th
Cir. 2000), for example, quoting our earlier decision in
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir.
1997), we said that “the prejudices of an employee, normally
a subordinate but here a coequal, are imputed to the
employee who has formal authority over the plaintiff’s
job . . . where the subordinate, by concealing relevant
information from the decisionmaking employee or feeding
false information to him, is able to influence the decision.”
See also Hoffman v. MCA, Inc., supra, 144 F.3d at 1121-22
(“tainted the decision maker’s judgment”); Willis v. Marion
County Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997)
(“able to manipulate the decisionmaking process and to
influence the decision”); Cariglia v. Hertz Equipment Rental
Corp., 363 F.3d 77, 84-88 (1st Cir. 2004); Laxton v. Gap Inc.,
333 F.3d 572, 584-85 (5th Cir. 2003); Abramson v. William
Paterson College, 260 F.3d 265, 285-86 (3d Cir. 2001); Griffin
v. Washington Convention Center, 142 F.3d 1308, 1311-12 (D.C.
Cir. 1998).
In any event, the purity of Boulden’s own motives was
placed in issue, though perhaps not very convincingly. Since
inability to get along with customers couldn’t have been
cured immediately, the speed with which Boulden re-
classified an account as a key account in order to make Lust
a Key Account Manager when she accused the company of
sex discrimination and seemed (and in fact was) about to
sue might seem powerful evidence that Boulden didn’t
No. 03-3496 7
really think that Lust lacked good interpersonal skills. It’s
actually weak evidence because the promotion may have
been motivated by a desire, which would have been consis-
tent with continued doubts about Lust’s suitability for
promotion, to head off a lawsuit or mitigate the amount of
back pay and damages that might be awarded.
Worse, the evidence violated the spirit, and probably the
letter, of Rule 407 of the Federal Rules of Evidence. Dennis
v. County of Fairfax, 55 F.3d 151, 153-56 (4th Cir. 1995). The
rule forbids using evidence of subsequent repairs or other
remedial measures to prove that the defendant could or
should have avoided inflicting the injury of which the
plaintiff is complaining. The reason behind the rule is that
allowing such evidence to be used for such a purpose would
discourage the taking of remedial measures. E.g., Probus v.
K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir. 1986). The reason
seems applicable here (and there is no basis in the language
or rationale of the rule for confining it to nonintentional
torts, though they are the usual occasion for its invocation),
but Sealy has not invoked Rule 407 and any objection to the
evidence based on that rule is therefore waived. As we’ll
see, Sealy actually tries to use the evidence to bolster its
case, which may be why it didn’t object, although it could
have sought a limiting instruction.
We attach no weight to Sealy’s statement in closing argu-
ment that “Sealy rectified and corrected . . . the decision that
you found on the failure to promote her immediately,
because it responded immediately, as soon as it learned of
her distress over not having been promoted.” This was not
an admission of liability, but an attempt to mitigate dam-
ages after the jury had found liability. Lust could and did
use the quick promotion to impeach Boulden’s testimony
about her inadequate interpersonal skills. But the jury was
not instructed that it could consider the evidence of the
promotion for that limited purpose only.
8 No. 03-3496
Sealy presented evidence intended to persuade the jury
that Lust had been passed over for the Chicago position for
innocent reasons. Some of the evidence was so weak that it
probably strengthened Lust’s case by making Penters and
Boulden look like liars. Sealy’s sales representatives are
asked to fill out a chart that lists the company’s 21 sales
districts, and to indicate which of these are their first, sec-
ond, or third choices (“A,” “B,” or “C”) for being relocated
to and which are out of the question (“X”). Lust marked
“Chicago/Wisconsin District” with an “A” and Sealy argues
that since she was already in that district, her marking it
with an “A” shows that she didn’t want to move from
Madison to Chicago. That is a non sequitur. What is true is
that even if a sales rep didn’t want to move from Madison
to Chicago, she wouldn’t mark “Chicago/Wisconsin District”
with an “X,” as that would suggest she wanted to leave the
district. But one couldn’t infer from her marking “A” that
she was determined to remain in Madison. Lust indicated a
willingness to relocate to three districts that are much
farther from Madison than Chicago is—Arizona (“A”),
Florida (“B”), and California (“C”). How her chart could
have been interpreted to signify unwillingness to move 148
miles to Chicago baffles us, as it doubtless did the jury and
may have been enough to convince it that Penters and
Boulden were testifying untruthfully.
Sealy thinks it telling that when Boulden finally offered
Lust a promotion to Key Account Manager, he gave her a
choice between Madison and Chicago and she chose
Madison. Of course, other things being equal, she preferred
not to uproot her family, which included children as well as
her husband. But it doesn’t follow that she wouldn’t have
taken the Chicago position had there been no opening in
Madison. She can hardly have been wedded to Madison
when her first choice for relocation, family and all, was
Arizona.
No. 03-3496 9
Another boomerang argument by Sealy is that the staff at
Bedding Experts—the key account that Lust would have
managed had she been given the Chicago position—con-
sisted of foul-mouthed animals. There had been an incident
several years earlier, with a different account, at which Lust’s
effort to divert a customer from talking about his sexual
activities with his ex-wife and about the strip bar that he
owned so enraged the customer that he rolled up the agenda
of their meeting and threw it at her, whereupon she left and
the account was given to another sales rep, a man. One
possible inference is that Lust is too prissy for Sealy’s roughest
customers. But another is that Sealy merely assumes that
women can’t deal with foul-talking men; and that is an im-
permissible assumption, another example of stereotypical
thinking. No doubt more women than men would have
trouble bonding with macho mattress dealers, but there are
tough women (women now fly combat missions for the Air
Force), and maybe Lust, who is at least brave enough to go
by her husband’s last name, is one of them, notwithstanding
the incident with the strip-bar owner—and his behavior was
so egregious that it is merely a conjecture that a male Sealy
rep could have pacified him, or that Lust’s male successor on
the account did so. Penters or Boulden could have explained
to Lust the character of the Bedding Experts staff and
probed her ability to handle such people. Instead they
merely assumed that she could not. They would not have
assumed that about a man, even a man who had walked out
of a customer’s office when the customer pelted him— or so
at least a reasonable jury could find.
We move on to Sealy’s objections to the district judge’s
evidentiary rulings. One is that Penters should have been
allowed to explain what he meant when he said “we prob-
ably all would not be here today” had he asked Lust
whether she was willing to move to Chicago. Lust’s inter-
pretation is that Penters was admitting that he was to blame
10 No. 03-3496
for the lawsuit, since he admitted feeling “mostly responsi-
ble” for it because her desire to be a Key Account Manager
was “a deeper desire than [he had] ever realized.” Sealy’s
complaint is that Penters’ explanation of the comment—
“because if Tracey and I had ever had a discussion about
her wanting to move to Chicago, she would have told me
no”—should not have been stricken from the evidence. The
judge struck the comment (after it had been made, however,
so that it is doubtful that the jury was much affected by the
ruling) on the ground that it was “not really relevant.” We
don’t see that. A district court is certainly allowed (indeed
in clear cases required) to permit a witness to explain on
redirect examination what he meant by his answer to a
question that had been put to him on cross-examination.
E.g., United States v. Chaimson, 760 F.2d 798, 810 (7th Cir.
1985); United States v. Caballero, 277 F.3d 1235, 1249-50 (10th
Cir. 2002); United States v. Braidlow, 806 F.2d 781, 783-84 (8th
Cir. 1986). But the explanation that Penters gave didn’t make
any sense, and we can’t imagine that its being stricken
influenced the verdict even if the jury actually managed to
exclude the comment from its consideration of the evidence.
A better ground for striking his explanation, however, than
irrelevance would have been that he had no basis in per-
sonal knowledge for saying “she would have told me no.”
He had not been qualified as a mind reader.
Penters’ “blonde” and “just like a woman” comments oc-
curred too long before Lust sued to be actionable under Title
VII. But she was not suing over those comments, and could
not have done so regardless of when they were made, be-
cause they were too trivial to constitute sexual harassment.
She was merely using them to cast light on Penters’ mind-
set; and regarding that use the question is merely whether
they were so stale as to lack any probative value. Schuster v.
Lucent Technologies, Inc., 327 F.3d 569, 575-76 (7th Cir. 2003);
Spencer v. Stuart Hall Co., 173 F.3d 1124, 1130-31 (8th Cir.
No. 03-3496 11
1999). Sealy argues that they were, but it was a judgment
call for the trial judge to make.
In order to show that Penters’ sexist attitudes had not
influenced Sealy’s decision to offer the Chicago position to
a man, Boulden was asked by Sealy’s lawyer whether he
would have given the position to Lust had Penters recom-
mended her for it, and an objection to his answer was sus-
tained. (The answer would have been “no.”) The judge
thought the question asked for speculation. Some hypotheti-
cal questions are so framed as to be incapable of eliciting
answers of even minimum reliability. Gierlinger v. Gleason,
160 F.3d 858, 870-71 (2d Cir. 1998); cf. Greene v. Sullivan, 923
F.2d 99, 102 (8th Cir. 1991). This was one. If Boulden was not
himself sexist, his response to Penters’ recommendation of
Lust would have depended on precisely what Penters said
both in making the recommendation and in responding to
whatever follow-up questions Boulden asked. For Boulden
to say that no matter what Penters said he would not have
given Lust the job is to say that he had a closed mind—per-
haps closed by sexism. So this is another example of evi-
dence Sealy wanted to present that would probably have
damaged the company in the eyes of the jury. Boulden’s
proffered answer was also inconsistent with his testimony that
if Penters had recommended Lust, he (Boulden) “would
have given her consideration. I would have taken time, I’m
sure, to think it through. I would have asked Scott to ex-
plain it first. Help me understand, you know, what’s your
rationale, and give him a chance to sell me.”
Sealy also complains about the exclusion of three memos
that Boulden wrote when Lust complained to him that she
was being passed over for discriminatory reasons. In the
memos he said that he hadn’t promoted her because of
deficiencies in her interpersonal skills and—inconsistently—
that he was planning to promote her soon. A memo nor-
12 No. 03-3496
mally is hearsay, Bracey v. Herringa, 466 F.2d 702, 704-05 (7th
Cir. 1972); In re Henry Holzapfel’s Sons, Inc., 249 F.2d 861, 864
(7th Cir. 1957); Timberlake Construction Co. v. U.S. Fidelity &
Guaranty Co., 71 F.3d 335, 341-42 (10th Cir. 1995), being
offered to prove the truth of a statement made out of court;
and unlike some other forms of hearsay, the argument for
excluding it from evidence unless it falls within one of the
exceptions to the hearsay rule is compelling. There is no
more facile a method of creating favorable evidence than
writing a self-exculpatory note. Such notes have no warrants
of reliability and allowing them to be placed in evidence
would operate merely as a subsidy to the forest-products
industry.
Even when contemporaneous with the events narrated in
them, they fall outside the spontaneity exceptions in Fed. R.
Evid. 803(1)-(3). The rationale for these exceptions is that
spontaneous utterances, especially in emotional circum-
stances, are unlikely to be fabricated, because fabrication
requires an opportunity for conscious reflection. United
States v. Santos, 201 F.3d 953, 963-64 (7th Cir. 2000); United
States v. Hall, 165 F.3d 1095, 1108-09 (7th Cir. 1999). As with
much of the folk psychology of evidence, it is difficult to
take this rationale entirely seriously, since people are en-
tirely capable of spontaneous lies in emotional circumstances.
“Old and new studies agree that less than one second is
required to fabricate a lie.” Douglas D. McFarland, “Present
Sense Impressions Cannot Live in the Past,” 28 Fla. St. U. L.
Rev. 907, 916 (2001). It is time the law began paying atten-
tion to such studies. But that is a story for another day, since
in any event the rationale of the spontaneity exceptions is
not engaged by this case. Boulden was hardly under
emotional pressure when he was writing these memos, and
their length, lucidity, and self-congratulatory tone all refute
any inference of spontaneity.
No. 03-3496 13
Sealy argues that the memos were alternatively admissible
as “records of regularly conducted activities.” Fed. R. Evid.
803(6). They were business records in the literal sense, or
perhaps a literal sense, of being documents created for a
business purpose—namely to create evidence of nonlia-
bility! They were not the kind of business record to which
the business-records exception to the hearsay rule refers, as
is apparent from the requirement that it be “the regular
practice of that business activity to make” the record. Be-
cause a business depends on the accuracy of its recordkeep-
ing, its records, although of course not sworn, are likely to
be at least reasonably accurate, or at least not contrived for
the purpose of making the business look better if it is sued.
United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993).
Boulden’s memos were not created as a part of the regular
recordkeeping processes of the Sealy mattress company.
Those processes include the making of personnel records,
but Sealy does not contend that memos that Boulden makes of
conversations with employees become part of the em-
ployee’s personnel record. Their only purpose was to create
evidence for use in Lust’s anticipated lawsuit, and that
purpose disqualifies them from admission as business
records. Echo Acceptance Corp. v. Household Retail Services,
Inc., 267 F.3d 1068, 1091 (10th Cir. 2001); Certain Underwriters
at Lloyd’s v. Sinkovich, 232 F.3d 200, 204-06 (4th Cir. 2000);
Scheerer v. Hardee’s Food Systems, Inc., 92 F.3d 702, 706-07
(8th Cir. 1996). Boulden wasn’t even “regular” in his so-
called recordkeeping. He kept no notes or memos concerning
prospects for the Chicago Key Account Manager’s position
that Lust did not get.
We move on to the remedy issues. Remember that the jury
awarded Lust $100,000 in compensatory damages and $1
million in punitive damages and that the judge had to cut
these amounts down to a total of $300,000. Since $100,000 is
14 No. 03-3496
1/11th of the total damages awarded by the jury, she
allocated 1/11th, or $27,000, of the $300,000 cut-down dam-
ages award to compensation for the emotional distress that
Lust claims to have experienced as a result of being passed
over for the Chicago job. This computation was not an
inevitable entailment of the judge’s having to bring the
jury’s verdict within the statutory ceiling. The statute does
not prescribe a method for making this adjustment and we
have upheld a decision that took the entire cut out of the
award of punitive damages and another that took the entire
cut out of the award of compensatory damages. Gile v.
United Airlines, Inc., 213 F.3d 365, 371, 376 (7th Cir. 2000);
Jonasson v. Lutheran Child & Family Services, 115 F.3d 436, 441
(7th Cir. 1997). The former is the more common approach. See,
e.g., EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276,
1279, 1286-87 (7th Cir. 1995); Johnson v. Spencer Press of
Maine, Inc., 364 F.3d 368, 377-78 (1st Cir. 2004); Hall v.
Consolidated Freightways Corp., 337 F.3d 669, 676-77 (6th Cir.
2003). Since in a normal suit punitive damages are some-
thing added on by the jury after it determines the plaintiff’s
compensatory damages, probably the sensible thing for the
judge to do is not to make a pro rata reduction, as here, but
instead to determine the maximum reasonable award of
compensatory damages, subtract that from $300,000, and
denote the difference punitive damages. (All this is on the
assumption, of course, that $300,000 is not an excessive
award of compensatory plus punitive damages in the cir-
cumstances of the case.) But in this court Sealy does not
challenge the method that the judge used; it is content to
argue that $27,000 is an excessive estimate of the emotional
harm caused Lust by the slightly delayed promotion.
The amount does seem high (and therefore we reject Lust’s
argument that if we cut the punitive-damages award, we
should increase the award of compensatory damages);
Boulden offered her the replacement position only two
No. 03-3496 15
months after she was passed over. But she testified and the
jury was entitled to believe that she experienced nontrivial
symptoms of anxiety and other forms of emotional distress
that the belated promotion did not completely dispel (let alone
retroactively). Her reactions may have been abnormal, but
the tortfeasor takes his victim as he finds him (or in this case
her), Brackett v. Peters, 11 F.3d 78, 81 (7th Cir. 1993);
Tompkins v. Cyr, 202 F.3d 770, 780 (5th Cir. 2000); Jenson v.
Eveleth Taconite Co., 130 F.3d 1287, 1294-95 (8th Cir. 1997),
and the intensity of Lust’s reactions may be a clue to how
ambitious she is to succeed in her career. If that is the ex-
planation, it further undermines Sealy’s defense to the
charge of discrimination; it is further evidence that she
really did want that Chicago promotion.
The punitive damages awarded, after the judge’s reduc-
tion, were $273,000, and Sealy makes several arguments for
reducing them further. One, which would entail reduction
to zero if we accepted it, is based on the Supreme Court’s
ruling in Kolstad v. American Dental Ass’n, 527 U.S. 526, 545
(1999), that punitive damages may not be awarded in any
amount against an employer in a Title VII case on the basis
of discriminatory acts by its managerial employees if those
acts “are contrary to the employer’s ‘good-faith efforts to
comply with Title VII’ ”; see also Lampley v. Onyx Acceptance
Corp., 340 F.3d 478, 482 (7th Cir. 2003); Anderson v. G.D.C.,
Inc., 281 F.3d 452, 459-61 (4th Cir. 2002). Sealy points to a
variety of efforts that it has made to comply with the stat-
ute—including promptly promoting Lust to Key Account
Manager after discovering that she believed herself to be a
victim of sex discrimination. (Note the oddity that both
sides wanted to use that evidence to advance their respec-
tive causes.) But unfortunately for Sealy it failed to request
a jury instruction on the good-faith defense. In its reply brief
it argues mysteriously that “Kolstad does not require that
jury instructions be structured around its analytical frame-
16 No. 03-3496
work.” Whatever that means, it doesn’t excuse a party’s
failure to seek an instruction if it wants to present a defense
to the jury. See Zimmermann v. Associates First Capital Corp.,
251 F.3d 376, 385-86 (2d Cir. 2001).
Maybe what Sealy is trying to say is that the evidence
demonstrated its good faith as a matter of law, so there was
no issue for the jury, but it hasn’t said it clearly enough to
preserve the issue for appellate review. Nor would the ar-
gument succeed if it had been preserved, since the principal
evidence of good faith on which Sealy relies—namely
Boulden’s own testimony—the jury was free to, and doubt-
less did, disbelieve. So this is another example of Sealy’s
failure to grasp the limitations on appellate review of a
jury’s verdict. We do not make our own assessment of the
witnesses’ credibility.
Sealy argues that in any event the award of punitive
damages was excessive. One reason it gives is that to award
more than ten times compensatory damages offends due
process. The point of the argument is obscure, since if ac-
cepted it would imply only a $3,000 reduction in the punitive
damages awarded against Sealy. It is also the argument that
we rejected in Mathias v. Accor Economy Lodging, Inc., 347
F.3d 672, 675-78 (7th Cir. 2003), a case that involved both a
smaller amount of compensatory damages and a larger
amount of punitive damages, so that the ratio of punitive to
compensatory damages, rather than being just a shade over
10:1 as in this case, was 37.2:1.
But there is a more fundamental objection to the argu-
ment. When Congress sets a limit, and a low one, on the
total amount of damages that may be awarded, the ratio of
punitive to compensatory damages in a particular award
ceases to be an issue of constitutional dignity, EEOC v. Wal-
Mart Stores, Inc., 187 F.3d 1241, 1249 (10th Cir. 1999); cf.
Romano v. U-Haul Int’l, 233 F.3d 655, 673 (1st Cir. 2000), though
No. 03-3496 17
in particular cases it may be higher than the evidence war-
rants, as we found to be the case in Hennessy v. Penril
Datacomm Networks, Inc., 69 F.3d 1344, 1355-56 (7th Cir.
1995), and in the Ramsey case cited below. Long before
anyone thought the Constitution placed a limit on damages,
damages awards were being set aside as excessive. On the
difference between the constitutional limit and the ordinary
exercise of judicial control over jury awards, see Ross v.
Kansas City Power & Light Co., 293 F.3d 1041, 1049-50 (8th
Cir. 2002); Johansen v. Combustion Engineering, Inc., 170 F.3d
1320, 1330-33 (11th Cir. 1999).
The purpose of placing a constitutional ceiling on punitive
damages is to protect defendants against outlandish awards,
awards that are not only irrational in themselves because
out of whack with any plausible conception of the social
function of punitive damages but potentially catastrophic for
the defendants subjected to them and, in prospect, a means
of coercing settlement. That purpose falls out of the picture
when the legislature has placed a tight cap on total, includ-
ing punitive, damages and the courts honor the cap.
As we emphasized in Mathias, moreover, capping the ratio
of compensatory and punitive damages makes sense only
when the compensatory damages are large, which the
statutory cap on total damages in employment discrimina-
tion cases precludes. Suppose Lust had been emotionally
sturdier and incurred only $10 in emotional injury from the
delay in her promotion to Key Account Manager. Would Sealy
argue that in that case the maximum award of punitive
damages would be $100? So meager an award would ac-
complish none of the purposes, discussed in Mathias, for
which punitive damages are validly awarded.
A more promising argument is that $273,000 is excessive
given the prompt steps that Sealy took to correct the dis-
criminatory denial of promotion. In Ramsey v. American Air
Filter Co., 772 F.2d 1303, 1314 (7th Cir. 1985), a similar case,
18 No. 03-3496
we cut the award from $150,000 to $20,000, though in David
v. Caterpillar, Inc., 324 F.3d 851, 865 (7th Cir. 2003), also a
similar case, we upheld an award of $150,000. The award
upheld in Lampley v. Onyx Acceptance Corp., supra, 340 F.3d
at 485-86, was only slightly smaller, and the award upheld
in Luciano v. Olsten Corp., 110 F.3d 210, 222 (2d Cir. 1997),
slightly larger, but in both cases the facts were more egre-
gious than in this case. See also Kimbrough v. Loma Linda
Development, Inc., 183 F.3d 782, 785 (8th Cir. 1999).
We are concerned that to uphold the award of the max-
imum damages allowed by the statute in a case of relatively
slight, because quickly rectified, discrimination would impair
marginal deterrence. If Sealy must pay the maximum dam-
ages for a relatively minor discriminatory act, it has no
monetary disincentive (setting aside liability for back pay)
to escalate minor into major discrimination. It’s as if the
punishment for robbery were death; then a robber would be
more inclined to kill his victim in order to eliminate a
witness and thus reduce the probability of being caught and
punished, because if the murdering robber were caught he
wouldn’t be punished any more severely than if he had
spared his victim. See Lorenzen v. Employees Retirement Plan
of the Sperry & Hutchinson Co., 896 F.2d 228, 232-33 (7th Cir.
1990). In light of this consideration and this court’s treat-
ment of punitive-damages awards in similar cases, we
believe that the maximum such award that would be reason-
able in this case would be $150,000. Cf. Biondo v. City of
Chicago, No. 02-2707, 2004 WL 1908354, at *7 (7th Cir. Aug.
27, 2004); Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d
1344, 1355-56 (7th Cir. 1995).
To summarize, the judgment is affirmed except with respect
to the award of punitive damages, as to which Sealy is enti-
tled to a new trial unless the plaintiff accepts a remittitur of
the excess of those damages over $150,000.
MODIFIED AND AFFIRMED.
No. 03-3496 19
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-04