all right our next case for this morning is somerfield against lawren ward for the reasons set forth in briefly respectfully request that the court reversed the district court and enter judgment as a matter of law in favor of canadiana or a new trial  always followed like twenty out of twenty instances namely a it's a it's a lot like a situation you know maybe you file a lien on someone's property you can put a procedural barrier in there's evidence in the record there was that his recommendations about suspension decisions were were accepted his recommendations concerning suspensions were accepted concerning so far which was a different type of complaint than the complaint register spars or are more was a different type of disciplinary action i understand there are two different kinds of things and i believe there was evidence in this record that the jury could have said when he got the ball rolling on this other kind of suspension his recommendations were taken but if you want to the issue here is that the discriminatory han canadia did not cause the adverse action because there was no evidence submitted the canadian ever communicated with the independent investigation that was conducted by the chicago police department internal affairs  division no i understand that you i understand you're trying to put this into a cat's paw kind of this theory which is the district court you're clear that's not what she thought was going on but the theory of this case however it that by initiating this suspension process he certainly initiated it you would agree with that i agree but in the end that enough itself was enough of a shadow on canape summer fields based upon discriminatory animists it was not true that adverse action was the change in the adverse action in terms of probable cause for c ability and the result that what occurred was broken by the independent investigation now i understand that that's your theory and i guess i'm not doing a good job of that saying that i believe his theory is that you didn't even need to get to the end of the investigation you didn't need to have this complain upheld or not that the mere process of the suspension was enough to keep him from getting the suspension i would agree would be an adverse action the initiation of the complaint to issued some discipline and i think that's where we're we're talking about two different things you think we need to get all the way out to the end of the result of the suspension for which you argue that there was intervening cause this and the jury heard evidence that maybe there was an intervening cause that once conies yak said what he said that was that and this further investigation was just so much that was not the result and that was not but there you have the case and i and i think i understand what you are saying the shadow but the fact that he he initiated the investigation or initiated the complaint did not mean that the internal affairs division or the command review channel would have found one of the rendered unfounded decision or an unsubstantiated fishermen's what did you argue to the jury what was your theory when you argue to well our and i don't mean to to to move away our theory going into the case was that because of because of the separation and that sergeant from a z ag did not directly render the decision to either suspend or to deny the promotion the only basis for this case was the cat's paul theory and animists did not render the decision then what's the purpose of the cat's claws fear cast talk theory is presented when that situation exists now how did the district judge did not the district court specifically said she did it wasn't a point of her not accepting the catspaw theory it was i believe the point of the plaintiff did not assert the catspaw theory and the plaintiff wanted to to proceed on a more direct area of liability which was proximate cause the proximate cause under a proximate cause theory there had to be for c ability and a reason in the result and in your view that's what went to the jury that's what went may have been the basis for the suspension more importantly certainly three years down the line when the denial of the promotion took place there was no reasonable forsee ability they could have been invoked to the discriminatory animists of canadiana that would have been that he would have reasonably foreseen that result and he would have felt that that was what conveys the act was trying to do but in the jury does find the proximate cause that you said that those were the instructions that's correct we get there were there was an instruction on proximate cause but sure you argue that there was no proximate cause because in the intervening events you must have argued intervening cause yes yes we did but we also argued because there is too adverse actions we think that that ebbers actions are separate there's one a action was that which was the five day suspension and then there's the other adverse action that occurred three years down the line for the denial or the promotion in which could in which there was no evidence that  can asiatic knew that summerfield had apply knew that there was a departmental order that he couldn't have three suspensions i thought there was evidence that  was very well known that can ac at that sorry that summerfield wanted this promotion and that he was in line for it and had been training and doing all the things you know just sort of walk in and say hello i'm a dog that resulted in that suspens any basis and can easily act even in these are all argument by the way doesn't refer to retaliation he doesn't discuss retaliation in his briefing to discrimination claims so we argued that on that basis alone he's waived the won and now here we are in summerfield too it's unusual that it would be split up like this i know there are different defendants i'm not saying there's it conclusion problem per se but it makes it obvious he can't recover twice if the city of chicago has already paid him for certain damages they were damaged is and that he's been paid so judge ghoshal reasonably would have said you can't come back here and ask for them again of course and they were paid as a result of this lawsuit before your  he mr summerfield got exactly the amount related to the jury's verdict approximately fifty four thousand on point number three on pages eleven thousand and seventeen of the reply brief  intervening cause argument because we can all see what can a z act did we can all see that it culminates in this suspension and that there is the three suspension rule and that doesn't get the canine handler position but he argues that the investigation function and the people who venture early suspend are really just too far removed from can a siac to attribute all of the bad things that happened to  well i'll respond or shall we say factually and legally let's start with the legally if i remember correctly from start on the supreme court stated that an argument can be made that the decision makers judgment was an intervening cause because he based his decision on his own independent investigation and if i remember correctly the supreme court said no that's not so you don't break the chain of proximate cause just because the ultimate decision maker makes an was asked is there proximate cause was were can a c x actions sufficiently related to st this is spent ssion and then of course that would have known as a member of the police department that a suspension has all sorts of negative effect ordination of course for an symbol but it probably anything that rises to the level of this kind of action is supposed to be serious so are we to take that to mean that the jury simply said these intervening steps were just were in fact not enough to break the chain from can a c x actions to the negative impact on mr summerfield yes because that's what they do that's how the jury was instructed and did anybody object to those instructions no no and also i might add that the jury we could infer the jury could reasonably be suspicious of this alleged break of conies x involvement for example commander in his area chief as your honor pointed out the twenty times conies yack recommended suspension twenty times his recommendation was rubber stamped so we don't really have any break in proximate cause and counselors are referenced to you know three years later well what happened three years later mr s mr summerfield had a clean record not even a reprimand all of a sudden in two thousand and six he imagine that i guess i'm pretty sure it and you know conies yak had a hand he had with this commander he had a lot of influence on we mentioned from the record that he was a supposed to get a shift change because he didn't have that's a type of seniority even though he had been there what one thousand five hundred and twenty years but because of his were our relationship with the commander he was able to get a shift change over other sergeants and he served as can easy a committed at the commanders pleasure so he had a lot of influence and it showed by the way he treated this this jew german who he believed should have been shot in the head or should have his fl responsibility but it might have been but he did recommend the nd is that in the record is it is in paper forward didn't did he testified he testified to it and i believe it's also in writing i reply brief defense and i think this is important for several reasons number one it implies that  page sixty she's not responsible for it well then by stating that he's implying that somebody is responsible and that is the city i guess i'm going to be careful there because of course people are entitled to lend themselves against reprehensible that the jury should be entitled to make that decision and then within the limits spelled out in cases such as b m w the jury made an award and i know that we've we've saw in arrogantly is threatening somebody day in and day out for years burn jew burn i mean hitler should have killed all of you which let's burn you and put you in the ashtray along with one thousand dollars other jews how would one come to work each day how would one survive each day in punitive damages or quite frankly five hundred and forty thousand dollars is too low it's too low to send out a message to considering that there were sergeants and captains and lieutenants and next to sergeant conies it day in and day out condoning this five hundred and forty thousand dollars is too low to send out to this department this chicago police department and nationally minor infraction something about not completely filling out a policeman or a report he said was a minor he admitted it and yet summerfield is getting suspended and when did all these suspensions happened and was there evidence that other people were not commander's office pulled them off the street where they should have been upholding the law on deterring crime pull them into the commander's office to act as witnesses it had never been done before can you see a committed that the other sergeants admitted that over and  boot it was a minor incident so why not the jury could be suspicious about that can easy except in motion see are to guarantee that can easy to to summerfield would be and everybody knew that summer feel was up for promotion as your honored porter not he went through rigorous training he talked about sergeant woods talked about it regularly that that this mr summerfield talked about his to his promotion he couldn't wait for it because if if one of their employees is going to be transferred then they're going to have to get somebody else so it's it was no secret so it certainly is in the record i could be an entertainer on his question the jury worked hard in this case we all did this is a twelve year old case the evidence is there that can easy act discriminate against mr summerfield he wanted to set him up for the suspension he yes your honor thank you but i do have something further contrary the punitive damages award first of all i'm looking at represents a billet there's no question that in terms of the verbal harassment can asiatic statements than it was just that punitive damages were appropriate but really sound good she knew what they were i have to assume the jury believed the account that it was given of what this course of conduct was made and b that the nature of the statements was as we've been listening to this morning and is the record shows i mean just extraordinarily out of line but and also i just want to address the retaliation of the retaliation could not be part of the economic damages that were found in one of the economic damages were based on the grievances that the city paid opposed to the civil rights action that was brought but you know if the theory is different if the underlying injury is the same you still can't get to the covers recoveries for the same underlying city paid no i just think at least maybe i read this it was relevant to see what the amounts of those damages were when we turned to the question of assessing the amount of  what kind of multiplier was used and how much the jury assessed but turning back to the puna be there punitive damages in reviewing the punitive damages in the late into the evidence the extreme amount of the punitive damages award as compared to the mean if we look to you know the district court says extremely reprehensible conduct abuse of a position of power goes on for years escalating tone frequency so she makes those findings then she looks at the sixty three thousand chicago pays and you could also look at that thirty from somerfield one and you get a ratio below six which is single digit the supreme court has the court quite understandably has never said this is the ratio for all cases in all times but they've indicated single digit ratios or maybe the double digit but the problem with title seven is that congress has chosen to cap it so instead of having you know if you think of it on a graph a chart that just shows all cases with the most egregious cases bringing the highest levels it gets lopped off at the three hundred thousand dollars levels so that's a policy judgment congress made sign but they did not make that policy judgment for the statute they didn't make  everything caps out at three hundred thousand you can't draw any inference above that but when looking at conveys that financial condition and the fact that he was personally liable for this excessive amount of people i understand he where in the law absent say that that's what we look at as opposed to the conduct what i think we look at both you look at the conduct as well as the excess in this and the fact that he's personally li do cases where people had discounted punitive damages because they were persons of more modest yes i don't know i mean you want enough punitive damages to create the deterrent punitive that's why they're called punitive damages and so to to take on the other side you know if you're suing boeing and you know you get a punitive damages awarded one hundred thousand dollars somebody is going to say they want to notice it you know it's a rounding error for them so that's not a good amount you need to have more but the less situations i think are much more in frequent and especially if the multiplier is justifiable but i think it should be justifiable  noble for you to so you think we should just sit down to come up with a punitive number that we'd like i think you should come up with a reasonable punitive number based one which is in the jury instruction in which i believe the law states one factor not all but one factor is sergeant canadia x financial condition i'm so i'm dubious once you figure out it's within constitutional boundaries i'm very dubious that the law would say that we do not defer to the discretion of the judge who heard all the evidence and who has a much better sense of the facts our normal stare would be deferential but we can once you once you pass the constitutional limits of his one hundred and one dollars multiplier would say that's too much but we don't have that but in this case your honor the jury specifically stated this should be ten years pension ten years of his entire income of this person and this person's family one hundred and twenty months of his income in balancing what is punitive enough to deter amazing who is retired and who could not know who is no longer employed and in need deterrence and could impose this conda any further this is an extremely large role award to him and his family are is that one the judge had to determine the economic damages so in that it is as far as that there were calculations that need to be made three years almost well and it wasn't just and what took so long to do that we were going back and forth and there were other motions that were being filed motions being filed by also by plane or to add the city of chicago an account and decided that there would be pre judgment interest so even after the economic damages was determined there was time span on determining what the amount of pre judgment interest it seems like a