Donna Lewis v. Chicago Police Department ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2877
D ONNA L. L EWIS,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO P OLICE
D EPARTMENT, C ITY OF
C HICAGO, and T ERRENCE
W ILLIAMS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6050—Ruben Castillo, Judge.
A RGUED O CTOBER 5, 2009—D ECIDED D ECEMBER 21, 2009
Before E VANS and SYKES, Circuit Judges, and SIMON,
District Judge. 1
S IMON, District Judge. Chicago police officer Donna
Lewis claims she was discriminated and retaliated
1
The Honorable Philip P. Simon of the United States District
Court for the Northern District of Indiana, sitting by designa-
tion.
2 No. 08-2877
against by the City of Chicago and her supervisor, Lt.
Terrence Williams. Her claim was initially borne out of a
decision by Williams to deny her request to participate
in a special security detail in Washington, D.C. The
acorn of that decision has produced an oak tree of litiga-
tion. Initially, the district court granted Defendants sum-
mary judgment. Lewis appealed that decision and won,
in part. This Court reversed and remanded as to her
gender discrimination claim against both Defendants
and her retaliation claim against the City. Lewis v. City of
Chicago (“Lewis I”), 496 F.3d 645, 656-57 (7th Cir. 2007).
At the subsequent trial, the jury returned a verdict in
favor of Williams and the City on both claims. The
district court denied Lewis’s motion for a new trial, and
Lewis appeals. She raises no less than fifteen issues
which she claims warrant a remand and a new trial.
Finding none of these issues to have merit, we now affirm.
I. BACKGROUND
Williams began supervising Lewis, an officer in the
tactical unit (“TACT”), when Williams became the Tactical
Lieutenant in the summer of 2002. In September of that
year, the Washington, D.C. police department requested
other departments to provide officers to assist with a
security detail surrounding a meeting of the Interna-
tional Monetary Fund (“IMF”). Chief James Maurer wrote
a memo addressing the IMF detail, announcing that
“[b]ecause of hotel accommodations, a lone female officer
will not be sent since there are two persons to each room.
Therefore, recommend a minimum of two female officers.”
No. 08-2877 3
Assignment to the detail was limited to officers in the
TACT, Gang or Special Operations (“SOS”) units. Chief
Maurer testified that even though the memo only referred
to females, the actual policy demanded that individual
officers could only be sent if an even number of that
person’s gender was going, regardless of whether the
gender was male or female.
Lewis felt the IMF detail was a good career oppor-
tunity and that she met all the requirements. She applied,
but her supervisor Williams took her off the list. According
to Lewis, Williams told her, “I took your name off the list
because you’re female” and “the trip was going to be
dangerous and a working trip and that you will thank
me for it later.” Williams denies saying anything of the
sort. He says that he removed her from the list because
no other females from her district signed up. Lewis lost
out on the training experience and some overtime pay.
Shortly after being denied participation in the IMF
detail, Lewis filed a grievance over the decision. She
says this triggered several acts of retaliation including
being ordered to investigate a CAPS complaint by her-
self. CAPS complaints are initiated by citizens and are
investigated by the police department. Williams told
her, “[I]f you feel like you need an assist, get a car off the
watch.” Lewis says this was a sarcastic remark, implying
that if she couldn’t handle the assignment by herself,
she should call over the radio for a uniformed officer to
assist. Lewis investigated the complaint and later filled
out a report that she says her supervisors repeatedly
rejected without reason. The supervisors claim it was
rejected because it was incomplete.
4 No. 08-2877
Another act of retaliation, according to Lewis, occurred
on October 4, 2002, when Williams instructed Lewis’s
car to respond to a “shots fired” call. Lewis and the two
other officers in the car with her were already in the
process of responding to the call. They conducted the
investigation without incident.
In January 2003, Williams transferred Lewis from the
TACT to the Gang unit, reassigning her to a new partner.
This was another act of retaliation according to Lewis.
Lewis learned that her new partner, Macon, was known
to want a transfer out of the unit and was less eager to
conduct aggressive police work. The reassignment
afforded what Lewis felt were fewer chances for over-
time and more desirable assignments. She was later
reassigned to another partner after Officer Macon moved
to a different unit.
Lewis then requested a transfer to the SOS unit, which
would have placed her outside of Williams’s supervision.
That request was denied by Chief Maurer, along with
the request of three other officers from Lewis’s district
who requested transfers to the SOS unit at around the
same time. In fact, only two of ten total applicants
during that period were accepted into the SOS unit.
On March 12, 2003, Williams received notice that Lewis
had filed an EEOC charge concerning the IMF detail and
her claims of retaliation. The next day, Lewis was in her
squad car responding to a burglary-in-progress call when
a voice Lewis claims belonged to Williams came on the
radio and ordered her to assist with a narcotics team
operation. While assisting the narcotics team with a
forced entry, Lewis was hit in the head with a sledge-
No. 08-2877 5
hammer by another officer. She suffered a fractured neck
and is now on a permanent disability leave. The sledge-
hammer struck Lewis while in the other officer’s
backswing. There is no indication that the incident was
anything other than an accident. Lewis believes that
being ordered to assist the narcotics team was another
example of her being put in dangerous situations by
Williams in retaliation for her filing the EEOC charge.
II. ANALYSIS
Lewis has four broad categories of complaints about
how her trial was conducted. She believes that the jury
was given incorrect instructions on the law, that there
were several evidentiary errors, that the City’s closing
argument was prejudicial and that there was insufficient
evidence for the jury to have found for the Defendants.
We take each up in turn.
A. Jury Instructions
Lewis makes a total of seven challenges to the jury
instructions. We start with a general discussion of the
law governing challenges to jury instructions and then
move to Lewis’s specific issues. We review challenges to
jury instructions de novo and afford the district court
“substantial discretion with respect to the precise
wording of instructions so long as the final result, read as
a whole, completely and correctly states the law.” United
States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008). When it
comes to potentially confusing or misleading instructions,
6 No. 08-2877
the reviewing court is to first ask if “the correct message
was conveyed to the jury reasonably well.” Dawson v. New
York Life Ins. Co., 135 F.3d 1158, 1165 (7th Cir. 1998). This
inquiry is done by examining the instructions as a
whole, in a common sense manner, avoiding nitpicking.
Id. If the instructions fail in this regard, a new trial is
appropriate only if the instruction prejudiced the com-
plaining party. Id.When a party fails to object to an instruction, the court
will reverse only if there was a “plain error affecting
substantial rights.” FED. R. C IV. P. 51(d)(2) (2008). Plain
error review of jury instructions is “particularly light-
handed.” United States v. DiSantis, 565 F.3d 354, 361 (7th
Cir. 2009) (quoting United States v. Griffin, 84 F.3d 912, 925
(7th Cir. 1996)).
1. Blending of Discrimination and Retaliation Instructions
The final set of instructions read to the jury included
separate instructions for the discrimination and retalia-
tion claims. Lewis maintains that certain aspects of the
instructions could have confused the jurors into incor-
rectly thinking that Lewis had to prove discrimination
and retaliation to prevail on her retaliation claim.
The discrimination instruction came first, and it
outlined the various elements of Lewis’s discrimination
claim. The next two pages of instructions contained short
paragraphs introducing general retaliation law. Following
that came five paragraphs making up the retaliation
instruction. The first two paragraphs of the retaliation
instruction read as follows:
No. 08-2877 7
Plaintiff claims that she was singled out for more
dangerous assignments, singled out for adverse treat-
ment about her job performance, moved from her
partner and her team, and/or refused to transfer her,
and/or directed her to more dangerous calls by Defen-
dant City of Chicago, through its agents because
she complained about gender discrimination.
Plaintiff must also prove by a preponderance of the
evidence that Defendant City of Chicago singled her
out for more dangerous assignments, singled her out
for adverse treatment about her job performance,
moved her from her partner and her team, and/or
refused to transfer her, and/or directed her to more
dangerous calls because she complained of gender
discrimination. To determine that Plaintiff Lewis was
singled out for more dangerous assignments, singled
out for adverse treatment about her job performance,
moved from her partner and her team, and/or
refused to transfer her, and/or directed her to more
dangerous calls because she complained of gender
discrimination, you must decide that Defendant City
of Chicago would not have singled her out for more
dangerous assignments, singled her out for adverse
treatment about her job performance, moved her from
her partner and her team, and/or refused to transfer
her, and/or directed her to more dangerous calls if she
had not complained of gender discrimination but
everything had been the same. (emphasis added).
Lewis takes issue with the inclusion of the word “also”
in the second paragraph of the retaliation instruction. Her
argument is that since there was nothing in the first
8 No. 08-2877
paragraph of the retaliation instruction describing what
else Lewis had to “prove,” then the reader would
naturally keep looking backwards in the instructions to
give meaning to the word “also,” and ultimately stumble
upon the elements of the discrimination instruction. As
a result, Lewis reasons, the jury could have understood
the retaliation instruction to mean that she had to
prove discrimination to prevail on her retaliation claim.
It’s fairly clear that the stray “also” was included in the
instructions by error. Here’s what happened: After the
close of evidence, the district judge sent the jury home for
the day and conducted a jury instruction conference. The
following morning, the City’s counsel proposed an
amended retaliation instruction which was “tendered” to
the court. See Tr. at 936. The City’s proposal added a
new paragraph to the retaliation instruction. After
reading the proposed instruction, the judge agreed with
including the additional paragraph but said he wanted to
switch the ordering of two of the paragraphs. The “also”
made sense as the paragraphs were originally written
but lost meaning when they were flip-flopped.
Including the stray “also” did not lead to the jury
being misinformed. The jury very easily could have
understood the distinction between the discrimination
instruction and retaliation instruction. First, it heard
closing arguments from counsel that treated the claims as
being completely distinct, one not dependent on the
other. Second, the retaliation instruction and discrimina-
tion instructions were separated by two pages of other
instructions. The “also” may have quite plausibly been
No. 08-2877 9
taken to refer to those intervening pages or the first
paragraph of the retaliation instruction itself, which
identified Lewis’s retaliation claims. We cannot say that
the inclusion of the word “also” made the instructions
so confusing and misleading that it resulted in the jury
being conveyed an incorrect message. Dawson, 135 F.3d
at 1165.
More importantly, Lewis failed to object to the instruc-
tion. Rule 51(b)(2) requires a court to give the parties an
opportunity to object to an instruction on the record and
out of the jury’s hearing before the instructions and
arguments are delivered. FED. R. C IV. P. 51(b)(2) (2008).
Under Rule 51, a court may remedy an error in the in-
structions that was not preserved if the error is plain
and affects substantial rights. FED. R. C IV. P. 51(d)(2);
Griffin v. Foley, 542 F.3d 209, 222 (7th Cir. 2008). In the
context of challenged jury instructions, a party’s sub-
stantial rights are affected so as to warrant reversal if the
error is “of such great magnitude that it probably
changed the outcome of the trial.” United States v. Noel,
581 F.3d 490, 499 (7th Cir. 2009) (quoting United States v.
Peters, 435 F.3d 746, 754 (7th Cir. 2006)).
Lewis claims she “did not see this revised instruction
before it was read to the jury.” Appellant’s Br. at 23. This
implies that it was somehow clandestinely passed to
the judge without Lewis or her attorneys having a
chance to see it. But the discussion of the changes to
the instruction were made in open court. The City’s
proposed changes to the instruction were tendered to
the judge, and there is no indication that Lewis’s counsel
10 No. 08-2877
asked to see a copy or expressed any interest in
reviewing the final language. The judge announced his
revisions prior to reading the instructions to the jury.
We have no reason to think Lewis would have been
denied the ability to read the instruction had she
expressed any desire to do so. Even without seeing the
actual piece of paper, Lewis was orally made aware of
all changes that were being made and could have
promptly responded.
Consequently, although the opportunity to object in the
time provided by Rule 51 was short in this case, the
opportunity was nonetheless there. In fact, the very
next portion of the transcript shows both parties
obviously aware of their need to preserve objections and
the opportunity to do so, as they quickly renewed previ-
ously unrelated objections to the instructions.
In sum, the error created by the stray “also” (if it may be
called that) was not significant enough to affect Lewis’s
substantial rights or to likely change the trial’s outcome. It
stretches the imagination to suggest that the mistaken
inclusion of one word in this set of jury instructions that
span twelve pages made any difference in the outcome
of the trial.
Lewis raises a few additional points, which she argues
added to the confusion created by the presence of the
stray “also.” First, she claims Instruction No. 5 contained
a confusing use of the word “and” which, according to
Lewis, again impermissibly linked the discrimination
and retaliation claims. The instruction said:
No. 08-2877 11
In deciding Plaintiff Lewis’s claims, you should not
concern yourselves with whether Defendants’ actions
were wise, reasonable, or fair. Rather, your concern
is only whether Plaintiff Lewis has proved that Defen-
dant City of Chicago and/or Defendant Williams
denied her the opportunity to participate in the IMF
Detail in Washington, D.C. because of her gender, and
whether Defendant City of Chicago took any of the
actions identified in the previous instruction in re-
taliation for her complaint of gender discrimination.
(emphasis added).
This instruction is a proper statement of law and follows
the Seventh Circuit Pattern Instruction 3.07. It deals with
an entirely separate subject matter from what is required
to prove discrimination and retaliation. Instruction No. 5
simply warned the jurors not to substitute their own
judgment for that of the City regarding matters outside
of the concerns animated by Title VII.
Second, Lewis takes issue with the judge’s reading of
one of the verdict forms to the jury. Verdict Form 4 origi-
nally said that if the jury found that Lewis did not prove
“retaliation” it must find for Williams on the “retaliation”
claim. The verdict form should have said “discrimination.”
But this error was repaired immediately after the judge
read the instructions, and was corrected on the verdict
form that went back with the jury. Ultimately, then, the
corrected verdict forms only helped to alleviate any
problems caused by the stray “also” in the retaliation
instruction, rather than compound it.
12 No. 08-2877
2. The Jury Instruction Defining “Materially Adverse”
Lewis also claims that the district court erred by sub-
mitting to the jury the question of whether the actions of
the City amounted to a materially adverse employment
action under the discrimination claim. She claims that
submitting the issue to the jury ignores this Court’s
holding in Lewis I. Here’s the relevant paragraph of the
discrimination instruction as it was read to the jury:
To succeed on this claim, Plaintiff Lewis must first
prove by a preponderance of the evidence that the
denial of the opportunity to participate in the IMF
Detail in Washington, D.C. was a materially adverse
employment action. Not everything that makes an
employee unhappy is a materially adverse employ-
ment action. It must be something more than a minor
or trivial inconvenience. For example, a materially
adverse employment action exists when someone’s
pay or benefits are decreased; when her job is changed
in a way that significantly reduces her career pros-
pects; or when job conditions are changed in a way
that significantly changes her work environment in
an unfavorable way. The denial of an opportunity to
earn overtime is a materially adverse employment
action if the overtime is a significant and recurring
part of an employee’s total earnings. On the other
hand, if the opportunity to earn overtime is insignifi-
cant and nonrecurring, it will not be a materially
adverse employment action.
Lewis contends that the actions taken against her were
materially adverse as a matter of law, and so the court
No. 08-2877 13
should not have posed the question to the jury. Whether
the denial of Lewis’s placement on the IMF detail consti-
tuted a materially adverse action was undeniably in
dispute. This Court in Lewis I said it was a genuine issue of
material fact. Lewis, 496 F.3d at 654. At trial, the City
presented evidence that Lewis did not know how much
overtime she would have earned, that there were several
other equally beneficial details available to her, that the
IMF detail was unglamourous while better training
exercise opportunities existed in Chicago, and that she
was not denied any subsequent assignments or promo-
tions as result of not being able to participate. Lewis’s
reliance on Henry v. Milwaukee County, 539 F.3d 573, 585-86
(7th Cir. 2008), is misplaced because, in contrast to this
case, the overtime opportunity in Henry was a significant
and expected component of the plaintiffs’ compensation.
It is true that some cases present obvious examples of
materially adverse actions being taken against employees.
For example, courts should not generally task juries with
determining whether terminations, demotions or salary
cuts are materially adverse actions. But there are times
where the question is not so obvious, and this case
presents one of those instances. See SEVENTH C IRCUIT
P ATTERN J URY INSTRUCTION § 3.01, Comment E (noting
that if a fact issue arises as to whether the plaintiff
suffered a materially adverse employment action, “a court
should modify the instructions to provide the jury
with guidance as to what this term means.”). Because the
degree of adversity suffered by Lewis was substantially
in doubt, the jury was appropriately presented with
the issue.
14 No. 08-2877
3. Inclusion of “Materially Adverse” Requirement in Retali-
ation Instruction
Lewis next takes issue with how the judge instructed
the jury on what the term “materially adverse” means in
the context of the retaliation claim. Lewis argues that the
instruction did not correctly follow Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Specifi-
cally, she takes issue with the following part of the re-
taliation instruction:
To succeed on this claim, Plaintiff must prove by a
preponderance of the evidence that the challenged
actions are ones that a reasonable employee would
find to be materially adverse such that the employee
would be dissuaded from engaging in the protected
activity.
It’s difficult to make sense of Lewis’s argument. The
instruction is entirely consistent with the Supreme
Court’s opinion in White. As we noted in Lewis’s prior
appeal, the main take-away from White is that “the range
of conduct prohibited under [Title VII’s anti-retaliation]
provision is broader than Title VII’s [anti-]discrimination
prohibition.” Lewis, 496 F.3d at 654-55 (quoting Phelan v.
Cook County, 463 F.3d 773, 787 (7th Cir. 2006)). The Su-
preme Court noted that for retaliation claims, “a plaintiff
must show that a reasonable employee would have found
the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrim-
ination.” White, 548 U.S. at 68 (internal citations and
quotation marks omitted). In light of this, it’s hard to see
No. 08-2877 15
how Lewis would conclude that White does not require
proof of an “adverse action” in a retaliation case.
Lewis also argues that because Lewis I found that she
had provided “sufficient evidence” of retaliation to
show a materially adverse action (under the White defini-
tion), the jury didn’t have to be asked whether the
actions were materially adverse. 496 F.3d at 655. But, once
again, Lewis I was reviewing the evidence under a sum-
mary judgment standard to determine if there was a
genuine issue of material fact. After deciding that there
was such an issue, it was then up to the jury to decide
the question. After all, Lewis did not win on summary
judgment, she merely defeated the City’s motion. This
Court’s finding of “sufficient evidence” in a summary
judgment context did not end the factual inquiry. It was
perfectly valid for the district court to require the jury to
determine if Lewis proved a “materially adverse” action,
and to explain that term in a manner that was consistent
with White.
4. Instruction on Intentional Discrimination
Lewis next argues that the discrimination instruction
was improper because it required Lewis to prove that the
Defendants “intentionally discriminated against her.” She
cites to Huff v. Sheahan, 493 F.3d 893 (7th Cir. 2007) and
Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir. 1986),
but those cases address hostile work environment claims.
Lewis’s hostile work environment claim was dismissed
at summary judgment and not pursued at trial.
16 No. 08-2877
A plaintiff bringing a disparate treatment claim must
prove intentional discrimination. The Supreme Court
has stated that it is the plaintiff’s burden to persuade “the
trier of fact that defendant intentionally discriminated
against the plaintiff.” St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 507 (1993) (quoting Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981)); Gonzalez v.
Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir.
1998) (“Proof of intentional discrimination is required
under a disparate treatment analysis.”); see also Waite v.
Bd. of Trs. of Ill. Cmty. Coll. Dist. No. 508, 408 F.3d 339, 343
(7th Cir. 2005). Lewis herself admitted this in her briefing
when she wrote that “[t]his evidence is also necessary to
prove discriminatory and retaliatory intent, which is an
essential element under Title VII.” See Appellant’s Br. at 46
(emphasis added). The instruction requiring Lewis to
prove intentional discrimination was therefore entirely
appropriate.
5. Mixed-Motive Instruction
Congress amended Title VII in 1991 to allow for liability
if a plaintiff proves that her gender (or other protected
class) was a “motivating factor” for a defendant’s
adverse action. 42 U.S.C. § 2000e-5(g)(2)(B) (2009). The
courts have developed instructions reflecting the amend-
ment, advising juries that if a plaintiff proves that
gender was a motivating factor, but the defendant shows
it would have taken the adverse action anyway, then it
must find the defendant liable but cannot award dam-
ages. See SEVENTH C IRCUIT P ATTERN JURY I NSTRUCTION
No. 08-2877 17
§ 3.01, Comment B and C. Circuits are split as to whether
to apply a mixed motive instruction in all Title VII cases,
see id. (citing E IGHTH C IRCUIT M ODEL C IVIL JURY INSTRUC-
TIONS § 5.01; N INTH C IRCUIT M ODEL C IVIL J URY INSTRUC -
TIONS § 12.1 & Comment; E LEVENTH C IRCUIT P ATTERN
JURY INSTRUCTIONS (C IVIL C ASES) § 1.2.1)), or only in
those cases determined to raise a question of mixed
motives, see id. (citing Watson v. Se. Penn. Transp. Auth., 207
F.3d 207, 214-20 (3d Cir. 2000); Fields v. New York State
Office of Mental Retardation & Developmental Disabilities,
115 F.3d 116, 121-24 (2d Cir. 1997)). This Court has yet
to decide when it is appropriate to apply a motivating
factor instruction.2
For situations in which a judge has decided to give
the jury a mixed-motives instruction, the Committee on
Pattern Civil Jury Instructions makes the following recom-
mendation:
Plaintiff must prove by a preponderance of the evi-
dence that his [protected class] was a motivating factor
in Defendant’s decision to [adverse employment action]
him. A motivating factor is something that contributed
2
The concurring opinion in Boyd v. Illinois State Police, 384 F.3d
888, 901 (7th Cir. 2004) (Posner, J., concurring), suggests that if
a defendant decides to put on the mixed-motive defense, then a
mixed-motive instruction is appropriate. The opinion goes on to
posit that if the defendant argues the only reason for the adverse
action was for a non-discriminatory reason, then he is “going for
broke” by aiming for a complete defense, and so no mixed-
motive instruction should be used. Id.18 No. 08-2877
to Defendant’s decision. If you find that Plaintiff
has proved that his [protected class] contributed to
Defendant’s decision to [adverse employment action]
him, you must then decide whether Defendant
proved by a preponderance of the evidence that it
would have [adverse employment action] him even if
Plaintiff was not [protected class]. If so, you must enter
a verdict for the Plaintiff but you may not award him
damages. See SEVENTH C IRCUIT P ATTERN JURY INSTRUC-
TION § 3.01, Comment C.
This case does not present us with the appropriate
context to choose sides in the circuit split because Lewis
did not preserve the issue for appeal. She merely hinted
at it, by proposing a three-paragraph instruction. The
middle paragraph, the only one addressing mixed-motives,
stated:
Plaintiff is not required to prove that her gender was
the sole motivation for the decision. Rather, Plaintiff’s
gender was a motivating factor if Plaintiff’s gender
made a difference in the decision.
The problem with this proposal is that it leaves out the
very significant second sentence suggested by Comment C
of the Pattern Instructions, the one that tells the jury
what to do if it finds gender to be a motivating factor.
Namely, the jury would have to decide whether the
Defendants proved that they would have taken the same
action even if Lewis was a man, and if so, enter a verdict
for Lewis but not award damages. Even if a party is
“entitled to an instruction,” it is “required to tender an
instruction that correctly stated the law in order to chal-
No. 08-2877 19
lenge the district court’s refusal to use it.” Marshall v.
Porter County Plan Com’n, 32 F.3d 1215, 1220 (7th Cir. 1994)
(citing Northbrook Excess and Surplus Ins. Co. v. Procter &
Gamble Co., 924 F.2d 633, 638 (7th Cir. 1991)). The Title VII
amendment codified as Section 2000e-5(g)(2)(B) “seems
to mandate two questions,” see Akrabawi v. Carnes Co., 152
F.3d 688, 694 (7th Cir. 1998) and Lewis’s proposed instruc-
tion was missing half.
We also agree with the district court’s assessment
that Lewis abandoned her request for a mixed-motive
instruction. Lewis v. City of Chicago, 563 F.Supp.2d 905, 912
(N.D. Ill. 2008). The transcript shows that during the
jury instruction conference, the judge asked Lewis’s
counsel about her proposed instruction containing the
motivating factor language. See Tr. at 909. The judge then
asked about the City’s own proposed instruction, which
used the “materially adverse” language from the com-
ments of Pattern Instruction § 3.01, but not any motivating
factor language. Id. Lewis’s counsel immediately re-
sponded that “we would be fine” with “changing ours,
taking out the middle section.” Id. at 910. This presumably
referred to the middle paragraph of her proposed instruc-
tion—the one discussing gender as a motivating fac-
tor. Counsel for Lewis then recited an entirely new in-
struction on the record which did not have any “moti-
vating factor” language. While counsel eventually did
object to the instruction that the court settled on, she did
so only with respect to the inclusion of the “materially
adverse” language discussed above. Id. at 911-12. She
did not lodge any objection to the exclusion of the “moti-
vating factor” paragraph. Id.
20 No. 08-2877
In sum, Lewis did not preserve her objection. Merely
tendering a proposed instruction is not sufficient to
preserve an objection. Consumer Products Research &
Design, Inc. v. Jensen, 572 F.3d 436, 439 (7th Cir. 2009).
Lewis’s proposed instruction asked if “gender made a
difference in the decision.” It is unclear how this instruc-
tion would have led to a different result than the one
reached through the instruction that was given, which
asked if the Defendants would have taken the same
actions had Lewis “been male but everything else had
been the same.” They are both essentially “but for” instruc-
tions. Therefore, Lewis “cannot articulate how [she] was
affected by the refused jury instruction.” Id. at 439-40.
Under the “light-handed” review of jury instructions,
see DiSantis, 565 F.3d at 361, we cannot say that the ex-
clusion of Lewis’s proposed instruction affected her
substantial rights. Nor can we say, in large part because
it was not argued, that the jury probably would have
found differently had it been given the full “motivating
factor” instruction discussed in Comment C of Pattern
Instruction § 3.01.
6. Pretext Instruction
Lewis next argues she was entitled to an instruction
advising the jury that it could find the City’s explana-
tions for the actions it took to be a pretext. Of course, the
subject of pretext comes from the McDonnell-Douglas
framework. But the burden-shifting apparatus provided
by McDonnell-Douglas is applicable only to pretrial pro-
ceedings. Gehring v. Case Corp., 43 F.3d 340, 343 (7th
No. 08-2877 21
Cir. 1994). “Once the judge finds that the plaintiff has
made the minimum necessary demonstration (the ‘prima
facie case’) and that the defendant has produced a[ ]
neutral explanation, the burden-shifting apparatus has
served its purpose, and the only remaining question—the
only question the jury need answer—is whether the
plaintiff is a victim of intentional discrimination.” Id.(emphasis in original). The exclusion of Lewis’s
pretext instruction did not render the final instructions
inaccurate, nor did it cause confusion for the jury. Lewis
was free to argue that the explanations given by the
Defendants were not believable and point to the
evidence showing why. We find no error with the
refusal to give a pretext instruction.
7. General Instructions
The district judge’s website says that “[t]his court has
adopted several general instructions that will be presump-
tively used in all cases.”See http://www.ilnd.uscourts.gov/
judge/castillo/standingtr.pdf, ¶ 11. The general instructions
address subjects such as the burden of proof, what consti-
tutes evidence, and how a single credible witness can
overcome a greater number of opposing witnesses on
any specific point. Lewis claims the judge’s failure to
include his general instructions in her case constituted
an error. We disagree.
Lewis did not make any objection regarding the
failure to give the general instructions. Indeed, she
admits that she did not realize the general instructions
were not given until after the final instructions were
22 No. 08-2877
read and the jury retired to deliberate. Lewis claims
surprise but it’s difficult to see why. Rule 51(b) requires
that the court “inform the parties of its proposed instruc-
tions . . . before instructing the jury and before final jury
arguments.” The judge did just that and the general
instructions were not part of the set that the judge
intended to give. There was no reason for Lewis to
assume the judge would operate outside the bounds of
that rule by giving instructions that were not part of the
set formally proposed to the parties and not discussed
at all during the instruction conference.
Lewis focuses on one instruction in particular that she
claims should have been given—the “single witness”
instruction, which informs a jury that the testimony of
a single witness may be sufficient to prove any fact,
even if a greater number of witnesses may have testified
to the contrary. See Judge Castillo General Instructions,
Appellant’s Reply Supp. App. at 7. To the extent any
damage was done by not providing this instruction, it
was minimized by the fact that Lewis’s closing argu-
ment explained to the jurors that they were entitled to
believe her and find she met her burden despite the
existence of possible witnesses she did not call. Though a
closing argument cannot serve as a substitute for a court’s
jury instruction, see United States v. Walters, 913 F.2d 388,
392 (7th Cir. 1990), it can be accounted for when deter-
mining if there was plain error. See United States. v. Jackson,
569 F.2d 1003, 1010 (7th Cir. 1978). But in any event,
Lewis has not shown how the absence of the general
instructions could have affected her substantial rights or
seriously affected the proceedings. See Higbee v. Sentry
Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006).
No. 08-2877 23
B. Evidentiary Rulings
Lewis also appeals several evidentiary rulings made
during the trial. Decisions to exclude evidence are
given considerable deference, overturned only for an
abuse of discretion. Alverio v. Sam’s Warehouse Club, Inc.,
253 F.3d 933, 942 (7th Cir. 2001). A new trial is warranted
only if the error has a substantial and injurious effect or
influence on the determination of a jury and the result
is inconsistent with substantial justice. Cerabio LLC v.
Wright Medical Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005).
In addition, even if a judge’s decision is found to be
erroneous, it may be deemed harmless if the record
indicates the trial result would have been the same.
Alverio, 253 F.3d at 942.
1. March 13, 2003 Injury
The district court decided not to allow Lewis to testify
or give evidence pertaining to the March 13 incident in
which she was accidentally injured by a fellow officer
during a forced entry into a home. The judge relied on
Federal Rule of Evidence 403 finding that the probative
value of the testimony was substantially outweighed by
the danger of unfair prejudice. A district court is
afforded a special degree of deference when deciding
whether evidence is unfairly prejudicial under Rule
403. Estate of Moreland v. Dieter, 395 F.3d 747, 754-55 (7th
Cir. 2005). It is a rare case where appellate courts will
second-guess the judgment of the person on the spot, the
trial judge. Id.24 No. 08-2877
Lewis was hoping to convince the jury that the March 13
incident showed that Williams was purposely placing her
in precarious situations in retaliation for her filing the
discrimination complaint. But as the district judge noted,
he allowed Lewis to present evidence on that point in
various ways: by offering evidence that she was assigned
to investigate a citizen’s complaint by herself; that she was
assigned to a “shots fired” call; that she was quickly
transferred from partner to partner so that she couldn’t
establish a safe working relationship with any of them; and
by diverting her from an in-progress burglary to a more
dangerous assignment on March 13. Lewis, 563 F.Supp.2d
at 918. So Lewis was allowed to present an abundance of
evidence to support her claim that she was retaliated
against by being given more dangerous assignments. She
was simply not allowed to present highly prejudicial testi-
mony concerning the fact that during one of those assign-
ments, she was accidentally injured.
We agree with the judge’s assessment that the blow-by-
blow story of the March 13 incident—involving being
accidentally hit in the head with a sledgehammer and
sustaining a broken neck—was “highly inflammatory.”
Lewis, 563 F.Supp.2d at 918. Evidence is unfairly prejudi-
cial, “if it will induce the jury to decide the case on an
improper basis, commonly an emotional one, rather
than on the evidence presented.” United States v. Zahursky,
580 F.3d 515, 525 (7th Cir. 2009). The district judge fairly
weighed the probative value of that evidence against the
danger of unfair prejudice and correctly decided to
exclude it. That determination was not an abuse of dis-
cretion.
No. 08-2877 25
2. Denial of Surgery
Lewis also challenges the decision to exclude evidence
related to the City’s denial of her request for neck surgery,
which she hoped to offer in support of her retaliation
claim. The problem is that there was no evidence con-
necting Williams to the denial of surgery or showing that
the decision-makers within the City’s medical section
had any knowledge of Lewis’s Title VII complaint.
Lewis conceded the point at trial when—during an offer
of proof—she acknowledged that there was no evidence
that the medical section had any knowledge of the EEOC
charge. See Tr. at 234-35.
So the district court, using its discretion under Rule 403,
excluded the evidence. The judge found that, in the
absence of evidence that the people who denied the
surgery knew that she filed a complaint of discrimination,
such evidence had very little probative value. On the
other side of the scale was concern that allowing Lewis
and a host of medical witnesses to testify about the diffi-
culty she was having in getting surgery might run the
risk of the jury deciding the case based on sympathy for
Lewis. Lewis, 563 F.Supp.2d at 919. The district court’s
decision to exclude the testimony was not an abuse
of discretion.
3. EEOC Determination, Internal Investigation and the
Promotion of Williams
The next issue raised by Lewis concerns the district
judge’s decision under Rule 403 to exclude evidence
26 No. 08-2877
pertaining to the EEOC determination, the City’s
internal investigation, and the promotion of Williams.
Although administrative findings may be admissible
under Federal Rules of Evidence 803(8)(C) and 801(d)(2),
the district court “retains significant discretion as to
whether [the determinations] ought to be admitted.”
Halloway v. Milwaukee County, 180 F.3d 820, 827 n. 9 (7th
Cir. 1999). The EEOC decision into Lewis’s claims
stated only that it “determined that the evidence
obtained in the investigation establishes reasonable
cause to believe that Respondent denied Charging Party
an overtime and training opportunity and retaliated
against Charging Party by reassigning her in violation of
Title VII.” This states only a conclusion and does not
provide much additional probative information, as the
district judge found. Lewis, 563 F.Supp.2d at 919. It
merely presents the question the jury was tasked with
answering. And it could have confused the jury into
thinking that the issue was already decided. Tullos v. Near
N. Montessori School, Inc., 776 F.2d 150, 153-54 (7th Cir.
1985) (finding no abuse of discretion where lower court
excluded EEOC determination because its consideration
“was tantamount to saying this has already been decided
and here is the decision.”). The same is true of the
City’s internal investigation, which actually exonerated
Williams. The judge was persuaded that admitting either
of the prior investigations in evidence would create a
substantial risk that the jury would adopt the earlier
conclusions. So he exercised his discretion, chose to
remain consistent and excluded both. Lewis, 563 F.Supp.2d
at 920 n. 4. This was not an abuse of discretion.
No. 08-2877 27
Lewis had argued the internal investigation was
relevant because the exoneration of Williams served as a
retaliatory measure against Lewis herself. But Lewis was
not pursuing a claim based on a continuing hostile work
environment, as was the case in Velez v. City of Chicago,
where a failure to remedy was discussed as grounds for
liability. 442 F.3d 1043, 1047 (7th Cir. 2006) (“An employer
is liable for a hostile work environment claim if . . . the
employer was ‘negligent either in discovering or remedy-
ing the harassment.’ ”) (quoting Mason v. S. Ill. Univ., 233
F.3d 1036, 1043 (7th Cir. 2000)). Lewis had the burden
of proving the discrete acts of retaliation. Even under
Lewis’s “failure to remedy” theory, this evidence
does not go very far in proving her case for retaliation. A
judge and jury would face difficulties if forced to
navigate through a record muddled between intersecting
and partially overlapping pieces of evidence presented
during the investigation and the trial, submitted under
differing evidentiary standards. The judge was free to
conclude that the risk of confusion outweighed the proba-
tive value.
Lewis also challenges the exclusion of evidence per-
taining to the promotion of Williams which occurred after
she lodged her gender discrimination complaint. She
claims that the City has a policy to reconsider the promo-
tion of officers after they receive sustained allegations of
discrimination, and since no such reconsideration oc-
curred, she should have been able to use the promotion
as a signal of discriminatory and retaliatory intent. She
says the cover-up served as further retaliation and that a
jury could infer it was done to protect Williams, a high-
ranking officer with the Department.
28 No. 08-2877
The promotion of Williams offered little insight into
the City’s discriminatory and/or retaliatory treatment of
Lewis herself, which was the actual matter at issue. So
the evidence had very little probative value. By the same
token, it would have been time-consuming to present.
And it would also have shifted the focus from the
actions taken against Lewis to the competing merits of
Williams and whether he actually deserved a promotion.
See Manuel v. City of Chicago, 335 F.3d 592, 597 (7th Cir.
2003) (finding speculative testimony about a supervisor’s
previous acts of racism to be unfairly prejudicial). Ex-
cluding the evidence concerning the merits of promoting
Williams was well within the district judge’s discretion.
4. Officer Warnings to Lewis to “Watch Her Back”
Lewis next challenges the exclusion of statements from
Officers Muhney, Oliver, Weatherspoon and Davis. Lewis
contends these officers advised her to “watch her back”
when responding to assignments given out by Williams,
implying that he was plotting to take retaliatory action
against her. The statements themselves had little
probative value since they were not comments of the
decision-maker himself. O’Regan v. Arbitration Forums, Inc.,
246 F.3d 975, 986 (7th Cir. 2001) (“Statements by a non-
decision-maker that amount to mere speculation as to
the thoughts of the decision-maker are irrelevant to an
inquiry of discrimination.”); Chiaramonte v. Fashion Bed
Grp., 129 F.3d 391, 397 (7th Cir. 1997) (“Statements by
inferior employees are not probative of an intent to dis-
criminate by the decisionmaker.”).
No. 08-2877 29
When Lewis tried to call Officer Davis at trial, she said
that Davis would testify that he “saw Lieutenant Williams
going off in the station.” See Tr. at 636. The judge re-
sponded that if Davis “can testify as to the defendant’s
acting in a certain manner and relates that to the EEOC
complaint, that’s fine.” Id. So it would have been permissi-
ble for the officers to testify if they saw from personal
knowledge Williams ranting and raving about Lewis’s
discrimination complaint. But they could not simply be
called to testify that Williams was “out to get her.” That
would have been utter speculation and highly prejudi-
cial. The statements were therefore properly excluded.
For what it’s worth, Lewis managed to get the evidence
before the jury anyway. She was permitted to testify at
trial that Officers Weatherspoon and Davis told her that
Lieutenant Williams “went off” when he “found out about
the [discrimination] complaint and they told me to
watch my back, that he was definitely out to get me.” See
Tr. at 225. So Lewis got much of what she wanted in
any event. Excluding the witnesses from testifying to
their speculation that Williams was “out to get Lewis”
was entirely proper.
5. Other Acts of Discrimination and Retaliation Against
Other Employees
Lewis claims the judge wrongfully excluded evidence
of other acts of gender discrimination and retaliation by
the City. Lewis wanted to show acts taken by “other
police supervisory personnel”—not Williams. In Lewis I,
this Court affirmed summary judgment as to
30 No. 08-2877
Lewis’s § 1983 claim against the City, for a lack of evidence
demonstrating an express policy of discrimination or a
widespread practice of ignoring discrimination com-
plaints. Lewis, 496 F.3d at 656. Thus, the remaining issue at
trial was whether there were acts of discrimination or
retaliation aimed at Lewis, not anybody else. Accordingly,
the judge correctly held that evidence of discrimination
and retaliation against other employees would be of
limited value. See accord, Grayson v. O’Neil, 308 F.3d 808,
816 (7th Cir. 2002) (“Evidence of generalized racism
directed at others is not relevant unless it has some rela-
tionship with the employment decision in question.”). The
high likelihood of juror confusion and inherent delay
that would surely accompany the disputes involved in
the introduction of this evidence outweighed what little
value could be gleaned from it.
C. Propriety of Closing Arguments
Lewis additionally seeks a new trial based on allegedly
prejudicial statements made by counsel for the City in
their closing arguments. Specifically, Lewis takes issue
with the City’s criticism of her failure to produce other
witnesses and evidence that would corroborate her
story. For example, the City pointed out in closing that
Lewis had not produced the officers who were riding in
the squad car when Williams allegedly assigned her to
assist with the narcotics call, or the officer who sup-
posedly told Lewis that her SOS transfer request had
been blocked by someone at an upper level. The City
suggested to the jury that these events didn’t actually
No. 08-2877 31
happen, and that “there is no corroboration [of] anything
that she alleged happened in this case.” Tr. at 1004.
Lewis argues that this was a misstatement of the law.
She cites to Pattern Instruction § 1.18, which says, “[t]he
law does not require any party to call as a witness every
person who might have knowledge of the facts related
to this trial. Similarly, the law does not require any party
to present as exhibits all papers and things mentioned
during this trial.” See S EVENTH C IRCUIT P ATTERN
JURY INSTRUCTION § 1.18, Comment E. Lewis failed to
object to the closing argument when made and has there-
fore waived the issue on appeal. Improper state-
ments should be objected to when made, so as to give
the trial judge a chance to correct any prejudice caused
by the statement. Doe By and Through G.S. v. Johnson,
52 F.3d 1448, 1465 (7th Cir. 1995).
In any event, we find that the Defendants’ closing
did not create an improper missing witness instruction
or otherwise unfairly prejudice Lewis. “Attorneys have
more leeway in closing arguments to suggest inferences
based on the evidence, highlight weaknesses in the oppo-
nent’s case, and emphasize strengths in their own case.”
Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008). In
Littlefield v. McGuffey, 954 F.2d 1337, 1347 (7th Cir. 1992),
the Court found that an argument that “there’s not a
single witness, not a single witness put forth to cor-
roborate any story that he was allegedly told,” was not
improper. The missing-witness rule “permits an
inference of unfavorable testimony from the missing
witness,” but may only be invoked “if that witness is
32 No. 08-2877
peculiarly within the opposing party’s power to pro-
duce.” Id. at 1346. Littlefield drew a distinction between
asking a jury to infer that a missing witness’s testimony
would be unfavorable (which is not allowed according to
the missing-witness rule) and asking a jury to question
a party’s credibility because it produced no cor-
roborating evidence (which is permissible). Id. at 1346-47.
Since the City was attempting to show the latter, the
closing argument was appropriate.
D. Sufficiency of Evidence
Lewis’s final claim is that the verdict was against the
manifest weight of the evidence. The standard of review of
a trial court’s decision to deny a motion for new trial on
this ground is “abuse of discretion.” Moore ex. rel. Estate
of Grady, v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008). Chal-
lengers bear a “particularly heavy burden” because a
court will set aside a verdict as contrary to the manifest
weight of the evidence “only if no rational jury could
have rendered the verdict.” Id. The reviewing court must
view the evidence in the light most favorable to the
prevailing party, leaving issues of credibility and weight
of evidence to the jury. King v. Harrington, 447 F.3d 531,
534 (7th Cir. 2006).
On the discrimination claim, the jury was entitled to
believe Williams when he testified that he never made
the discriminatory statements alleged by Lewis and that
he had no discriminatory intent. In Lewis I, we acknowl-
edged the IMF memo was direct evidence of discrimina-
tion, but only when reviewing it in the light most favor-
No. 08-2877 33
able to Lewis for purposes of summary judgment. Lewis,
496 F.3d at 652. We further stated that a genuine issue
of material fact existed as to whether gender discrim-
ination occurred. Id. Chief Maurer testified that the
memo did not reflect an actual discriminatory policy,
and that the City had no intent to treat female officers
any differently than males.
Even if the jury did not believe Williams or Maurer on
those points, it still could have concluded that there was
no materially adverse action taken against Lewis. What-
ever career benefits the IMF detail may have bestowed, a
tactical officer in Lewis’s position had the opportunity
to participate in several other similar details each year.
Lewis herself later worked on a security detail for the
President and at a later IMF meeting held in Chi-
cago. Other officers were denied the chance to go to the
Washington, D.C. detail and still received promotions.
With respect to the retaliation claim, there was a reason-
able basis for the jury to believe that the actions pointed
to by Lewis were not retaliatory at all, but merely part
of her job. For example, though she was told by
Williams on October 4 to respond to a “shots fired” call,
there was evidence that such calls occurred frequently
in her district. She was with two other officers at the
time. In fact, she and her partners were already re-
sponding to the call at the time Williams gave his order, so
a jury could easily conclude that the assignment was not
out of the ordinary or made with retaliatory motive.
For the March 13 incident, Lewis’s own testimony left
room for doubt as to whether it was actually Williams on
34 No. 08-2877
the radio re-assigning her to the narcotics assist. She said
it was a male voice, but she was unsure if it was
Williams or not. Williams typically began any radio call
by identifying himself as “Beat 360,” but no such signal
was made on the call in question. Further, the City put
forward evidence that assisting with narcotics calls was a
normal part of an officer’s job. Also, Lewis did not neces-
sarily prove that assisting a narcotics team was some-
how inherently more dangerous than investigating an in-
progress burglary call, so the jury could have believed
that she was moved from a riskier assignment to a safer
one.
Lewis also argued that Williams retaliated against her
by ordering her to investigate a CAPS complaint without
a partner. Evidence showed, however, that he did not
tell her to investigate the complaint immediately, but
instead to wait for a uniformed officer to become available.
That is precisely what Lewis did, and then conducted the
investigation without incident. With respect to the CAPS
reports that Lewis filled out, the jury was provided with
enough evidence to conclude that they were “kicked back”
to her because they were incomplete and required
more details about her investigation, not because her
supervisors were retaliating against her for filing dis-
crimination complaints. The jury was free to examine
the initial report, which was entered into evidence, see
that it consisted of only three lines, and find it was justifi-
ably returned to Lewis.
As for Lewis’s request to transfer to the SOS unit, which
would have moved her away from Williams’s super-
No. 08-2877 35
vision, there was evidence that Chief Maurer made the
decision to reject the transfer, not Williams. And Chief
Mauer testified that he was unaware of Lewis’s discrim-
ination complaint. He also denied the three other
requests from Lewis’s district, demonstrating that his
decision was not specifically directed against Lewis or
made out of any retaliatory motive.
In sum, the City and Williams presented sufficient
evidence to provide the jury a reasonable basis to find in
their favor. The verdict was not against the manifest
weight of the evidence.
III. CONCLUSION
The decision of the district court is A FFIRMED.
12-21-09