IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ROBERT SMITH, 

Plaintiff, 

v. 

ROSEBUD FARMSTAND, et al., 

Defendants. 

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Case No. 11-cv-9147 

Judge Robert M. Dow, Jr. 

MEMORANDUM OPINION AND ORDER 

Before the Court are Defendants’ motions to amend the Court’s findings of fact and 

conclusions of law pursuant to Federal Rule of Civil Procedure 52(b) [315] and for a new trial or 

reduction of damages through remittitur [316]. For the reasons set forth below, the Court denies 

Defendants’ motion to amend [315] and grants in part and denies in part Defendants’ motion for 

a new trial or remittitur [316].1

For Plaintiff’s sexual harassment claim under Title VII of the Civil Rights Act (Claim 1), 

the Court reduces Plaintiff’s compensatory damages to $50,000 and vacates any punitive 

damages award pursuant to 42 U.S.C. § 1981a(b)(3). For Plaintiff’s racial harassment claim 

under 42 U.S.C. § 1981 (Claim 2), the Court remits Plaintiff’s compensatory damages to $80,000 

and his punitive damages award to $160,000. For Plaintiff’s retaliation claim (Claim 3), the 

Court remits Plaintiff’s compensatory damages to $60,000 and his punitive damages award to 

$120,000. For Plaintiff’s Illinois Gender Violence Act claim (Claim 4), the Court remits the 

jury’s damages award against Defendant Roque Mendoza to $1,000 in compensatory damages 

and $2,000 in punitive damages and the award against Defendant Carlos Castaneda to $1,500 in 

 

1 In accordance with Federal Rule of Appellate Procedure 4(a)(4)(A)(iv)–(vi), the 30-day time period for 

any party to file an appeal runs from the date of this order.

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compensatory damages and $3,000 in punitive damages. Plaintiff must file on the docket a 

statement indicating whether he accepts or rejects remittitur. If Plaintiff accepts remittitur, the 

parties’ joint submission on attorney’s fees under Local Rule 54.3 will be due seven days after 

Plaintiff has so advised the Court and opposing counsel. If Plaintiff does not accept remittitur 

within 14 days of this order, the Court will grant Defendants’ motion for a new trial on damages 

only and will defer consideration on attorney’s fees until after the new trial. 

I. Background2

Defendant Rosebud Farmstand operates a grocery store on the south side of Chicago. 

Plaintiff Robert Smith worked as a butcher in Rosebud’s meat department from 2003 through 

2008. Plaintiff is African American, and many of Rosebud’s other employees are Latino. Most 

of the workers in the grocery store are paid minimum wage. In 2011, Plaintiff sued Rosebud 

Farmstand, alleging that Rosebud employees sexually harassed and racially discriminated against 

him during his employment. He also alleged that Rosebud retaliated against him for filing a 

complaint with the Equal Employment Opportunity Commission (“EEOC”) and the Illinois 

Department of Human Rights (“IDHR”), and their retaliatory conduct forced him to quit his job. 

Plaintiff further alleged that two of Rosebud’s employees, General Manager Carlos Castaneda 

and Assistant Manager Roque Mendoza, committed acts of gender violence against him. 

Plaintiff filed a six-count complaint, asserting claims for sexual harassment, racial 

harassment, retaliation, and constructive discharge pursuant to Title VII of the Civil Rights Act 

of 1964, a violation of the Illinois Gender Violence Act (“IGVA”), and racial harassment and 

retaliation in violation of 42 U.S.C. §1981. [1.] In November 2012, the Court granted 

Defendants’ motion to dismiss Plaintiff’s Title VII racial harassment and constructive discharge 

 

2

 In this opinion, the Court has recited the relevant facts consistent with the standards that apply to 

Federal Rule of Civil Procedure 52 and 59 motions, as set out in greater detail below. 

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claims, but otherwise denied the motion. [30.] In December 2014, the Court granted summary 

judgment in favor of Defendants Castaneda and Mendoza for Plaintiff’s Section 1981 claims. 

[165] In November 2015, the Court granted Defendant Rosebud’s motion for summary 

judgment on Plaintiff’s IGVA claim. [224.] After running this gauntlet, Plaintiff’s Title VII 

sexual harassment claim, Section 1981 racial harassment claim, Title VII retaliation claim, and 

Section 1981 retaliation claims survived to be pursued against Rosebud and his IGVA claim 

survived to be pursued against Castaneda and Mendoza. 

Because Plaintiff sought compensatory and punitive damages and equitable relief through 

his claims, the Court bifurcated the trial such that Phase I would be a jury trial covering liability 

on all claims and Phase II would be a bench trial covering equitable relief. In December 2015, 

the parties proceeded to trial. After seven days, the jury returned a verdict for Plaintiff on all 

counts and awarded $2,407,500 in damages. [246.] The jury’s verdict broke down as follows: 

Compensatory Punitive 

Sexual Harassment (Title VII) $250,000.00 $500,000.00 

Racial Harassment (Section 1981) $250,000.00 $500,000.00 

Retaliation (Title VII & Section 1981) $250,000.00 $500,000.00 

IGVA – Castaneda $50,000.00 $100,000.00 

IGVA – Mendoza $2,500.00 $7,500.00 

Subtotals $802,500.00 $1,605,000.00 

Grand Total $2,407,500.00 

Following the jury trial, the Court held a two-day bench trial on Plaintiff’s requests for 

equitable relief. In September 2016, the Court denied Plaintiff’s motions for judgment as a 

matter of law [237, 238, 242, 243], awarded Plaintiff $69,761.80 in back pay and $19,894.77 in 

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prejudgment interest, and denied the remainder of Plaintiff’s requests. [See 293; 297; 310; 311.] 

Defendants have moved to amend the Court’s Phase II findings of fact and conclusions of law 

[315], and requested a new Phase I trial or remittitur of the jury’s damages awards [316]. 

II. Legal Standard 

Federal Rule of Civil Procedure (“Rule”) 52(b) permits a court to “amend its findings—

or make additional findings—and * * * amend the judgment accordingly” upon a motion by a 

party. A Rule 52(b) motion is “intended to correct manifest errors of law or fact or to present 

newly-discovered evidence.” U.S. ex rel. Russo v. Attorney Gen. of Ill., 780 F.2d 712, 716 n.4 

(7th Cir. 1986). The moving party “must raise questions of substance by seeking reconsideration 

of material findings of fact or conclusions of law to prevent manifest injustice or reflect newly 

discovered evidence.” 9 Charles A. Wright & Arthur R. Miller, Fed. Prac. and Proc. § 2582 

(2017). The “primary purpose” for such a motion is to “enable the appellate court to obtain a 

correct understanding of the factual issues determined by the trial court as a basis for the 

conclusions of law and the judgment entered thereon.” Id. It is not to relitigate arguments lost, 

advance new theories, or present new evidence that could have been presented before. Id. “Trial 

courts do not grant motions to amend when the amendment would be futile.” Id.

A motion for a new trial is governed by Rule 59(a), which directs that “[a] new trial is 

appropriate if the jury’s verdict is against the manifest weight of the evidence or if the trial was 

in some way unfair to the moving party.” Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 

2014). When considering whether the jury’s verdict goes against the manifest weight of the 

evidence, the Court analyzes the “general sense of the evidence, assessing the credibility of the 

witnesses and the comparative strength of the facts put forth at trial.” Mejia v. Cook Cnty., 650 

F.3d 631, 633 (7th Cir. 2011) (citations omitted). But “[a] verdict will be set aside as contrary to 

the manifest weight of the evidence only if ‘no rational jury’ could have rendered the verdict.” 

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Moore ex rel. Estate of Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (quoting King v. 

Harrington, 447 F.3d 531, 534 (7th Cir. 2006)). “Jury verdicts deserve particular deference in 

cases with ‘simple issues but highly disputed facts.’” Id. (quoting Latino v. Kaizer, 58 F.3d 310, 

314 (7th Cir. 1995)). 

III. Rule 52 Motion 

Before turning to the substance of Defendants’ motion to amend the Court’s findings of 

fact and conclusions of law [315], the Court addresses Plaintiff’s two threshold arguments that 

the Court should disregard Defendants’ motion. 

First, Plaintiff argues that Defendants violated the Court’s “order” limiting “posttrial 

motions” to 25 pages and Defendants’ briefs should be stricken. [322, at 1–2.] The Court 

entered no such order. The Court did grant Defendants’ motion for leave to file a longer 

memorandum “in support of [their] motion for new trial and remittitur pursuant to Fed. R. Civ. P. 

59” [303, at 1 (capitalization altered)]. [See 305.] That request did not speak to any motion 

other than a Rule 59 motion, and nothing in the Court’s order purported to cap the total number 

of pages for all posttrial motions or preclude a separate Rule 52 submission. Defendants’ Rule 

52(b) motion is eight pages and did not require prior leave of the Court. See N.D. Ill. L.R. 7.1. 

Plaintiff’s “motion to strike” [322, at 1] is denied. 

Second, Plaintiff argues that Defendants’ motion is untimely because it was filed more 

than 28 days from September 9, 2016. [322, at 2.] Plaintiff skips over the fact that the Court 

“vacated” its September 9 order and entered a “new final judgment order” to “incorporate[] both 

the matters tried to the Court and the matters tried to the jury [the prior] December (which were 

inadvertently omitted from the [September 9] final judgment order).” [297.] That order set the 

deadline to file any Rule 59 motions at October 14, 2016—28 days from the judgment. Id. 

Plaintiff essentially argues that the Court reset the deadline for Rule 59 motions, but not Rule 52 

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motions. Both rules have the same “hard” deadlines. Coldwate v. Alcatel-Lucent USA, Inc., 587 

F. App’x 315, 317 (7th Cir. 2014). Neither can be moved. It would make little sense for the 28-

day clock to run against the vacated September 9 order for Rule 52(b) motions, but not for Rule 

59 motions, and Plaintiff does not offer any basis in the Federal Rules that could support such a 

result. Defendants’ Rule 52(b) motion—like their Rule 59 motion—is timely. 

A. Defendants’ Claimed Legal Errors 

Defendants argue that the Court’s Phase II opinion contained two “errors of law that 

should be corrected for the appellate court.” [315, at 2.] Both legal “errors” relate to the Court’s 

back pay decision. The Court held that Plaintiff had satisfied his initial burden to establish a 

back pay amount [311, at 22–26], but that Defendants had failed to meet their burden to show 

that for all relevant time periods (1) Plaintiff failed to exercise reasonable diligence to mitigate 

his damages; and (2) there was a reasonable likelihood that Plaintiff would have been able to find 

comparable work by exercising reasonable diligence. Id. at 26–41. The Court distinguished 

between Plaintiff’s unemployment in Arizona from 2008 through 2011 and his unemployment in 

Chicago from August 2012 to September 2013, and found that Defendants had only shown that 

Plaintiff had not exercised reasonable diligence in the latter period. Id. at 35. However, the 

Court found that Defendants did not show that comparable work was available to Plaintiff during 

this period, in part because Defendants relied on an expert witness whom the Court excluded 

under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 

Defendants first acknowledge that “the Court articulated the correct legal standards” 

regarding its back pay analysis. [315, at 2.] Nevertheless, Defendants argue that the Court erred 

in its conclusion that Plaintiff met his initial burden of proof. Id. at 2–3. Defendants assert that 

Plaintiff “offered no evidence in his case in chief * * * of his claimed damages beyond his own 

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testimony,” but the Court “unilaterality attempted to satisfy [his] burden for him.” Id. 

Defendants argue that the Court should include the “legal conclusions” that Plaintiff failed to 

satisfy his burden, “the Court incorrectly attempted to carry his burden for him,” Plaintiff 

presented “false and incredible testimony” instead of “competent evidence of his damages,” and 

“no bay pay award can be justified based on the record before the Court.” Id.

This argument lacks merit. Defendants do not pinpoint any specific “error of law” in the 

Court’s legal analysis. They do not claim that the Court considered legally improper evidence. 

And they do not ever say how exactly the Court improperly applied the correct law to the facts of 

this case. They simply argue that Plaintiff failed to satisfy his initial burden. But that argument 

completely overlooks the evidence in the record and how it got there. 

Notably, Defendants submitted Plaintiff’s weekly time sheets into evidence before the 

Phase II hearing. [262-1, at 1–15.] At the Phase II hearing, Plaintiff testified about his typical 

regular and overtime hours. [See Tr. Apr. 4, 2016, at 61–65.] In the middle of that testimony, 

Defendants’ counsel raised the issue of admitting Plaintiff’s time sheets and even tried to read 

those documents into the record during Plaintiff’s direct examination. Id. at 64. As the Court 

explained, there was no reason to take specific testimony from Plaintiff on whether he 

remembered his hours from over a decade ago when his actual hours records were available. Id.

at 64–65. The Court stated that if there was no reason to dispute the accuracy of these records 

(and Defendants do not seriously contend that their own time sheets are inaccurate), then these 

records would be part of the Phase II record. Id. Moreover, Defendants filed a motion to 

supplement the Phase II record with “copies of Rosebud Farm, Inc. business records from 2004–

2008 reflecting pay information for Plaintiff including Plaintiff’s W-2s and employee payroll 

journal statements that break out regular pay and overtime pay where applicable.” [272, ¶ 2.] 

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The Court relied on Defendants’ business records in conjunction with relevant testimony, 

Plaintiff’s own backpay calculations [see 278, at 37–38; 280-25], and other readily available 

information (such as the increases to Illinois’ minimum wage) in deciding whether Plaintiff had 

satisfied his initial burden. [311, at 22–26.] Defendants could have chosen not to submit any 

evidence and simply argued that Plaintiff had failed to meet his burden. They did not. Instead, 

they bolstered the record by submitting documentary proof of Plaintiff’s historical earnings. 

Defendants cannot now complain that the Court should have disregarded the evidence that they

added to the record when evaluating if Plaintiff’s burden was met based on the record. 

Defendants’ second “manifest error of law” was the conclusion that they had failed to 

satisfy their burden to show that “there was a reasonable chance [Plaintiff] might have found 

comparable employment.” [315, at 3.] Defendants again emphasize Plaintiff’s lack of 

credibility and that “he lied on every [job] application he completed.” Id. at 4. More to the 

point, Defendants argue that Plaintiff “had been a consistent employee at Rosebud Farmstand for 

five years,” which “supports an inference he had a reasonable chance of being employable for 

another entry-level minimum wage job.” Id. Defendants also rely on “common sense,” claiming 

Plaintiff testified that he applied for thousands of jobs and he would have had a reasonable 

chance of “obtaining jobs” had he not omitted his criminal history from his job applications. 

Thus, Plaintiff’s “own testimony about availability and his own testimony about lying support 

the legal conclusion [that Plaintiff] had a reasonable chance of finding comparable employment 

if he was truthful based on the facts here as applied to the law.” Id. (emphasis by Defendants). 

As with Defendants’ first argument, it is difficult to see how Defendants have identified 

an “error of law”—let alone a manifest error. Defendants were required to identify “comparable 

employment,” which is defined as a position that affords the prevailing party “virtually identical 

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promotional opportunities, compensation, job responsibilities, working conditions and status as 

the position from which she was discharged.” Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 

1037, 1044 (7th Cir. 1994). Defendants still do not point to specific record evidence establishing 

a “reasonable likelihood” that Plaintiff would have found a “comparable job” with reasonable 

diligence. Id. Defendants’ claim that Plaintiff had a reasonable chance of finding another 

“minimum wage job”—maybe comparable, maybe not—based on the fact he worked for 

Rosebud for five years is speculative and underdeveloped. Defendants certainly do not cite any 

case law suggesting that the Court was required to credit this vague assertion as a matter of law. 

The same is true of Defendants’ unsubstantiated claim that Plaintiff could have obtained a job 

had he disclosed his prior criminal convictions on his job applications. Even assuming that 

Plaintiff never disclosed his criminal convictions on any job application, it is hard to see why full 

disclosure would have made it more likely (as a mere matter of probabilities) that he would have 

found a comparable job. And again, if this was a legal error, Defendants do not identify any law 

that requires a different result. 

Finally, Defendants’ claim that the “Court’s failure to factor [Plaintiff’s] lack of 

truthfulness into its analysis of Defendants’ ability to fully develop its proof to support its failure 

to mitigate defense was, respectfully, an error of law” is wrong on multiple fronts. [325, at 4.] 

Credibility determinations are not errors of law. Defendants do not explain how they were 

inhibited from “fully” developing their proof or why Plaintiff’s lack of credibility precluded 

them from showing whether comparable jobs were available in the market or there was a 

reasonable likelihood that Plaintiff could have secured one of those jobs. Nor do they cite any 

law suggesting that a court must “factor” such credibility issues into a holding that a defendant 

did not meet its affirmative defense burden. Regardless, the Court extensively discussed 

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Plaintiff’s credibility issues in the context of Defendants’ failure to mitigate defense, noting the 

many inconsistencies in Plaintiff’s description of his job seeking efforts. [See 311, at 29–34.] 

To say that the Court failed to consider Plaintiff’s credibility in its analysis is to ignore the 

opinion that the Court wrote. Id. at 32 (“The Court concludes that Defendants, having 

successfully attacked Plaintiff’s credibility, have met their burden in showing that Plaintiff was 

not reasonably diligent in seeking employment during the 13-month period spanning August 

2012 to September 2013.”). Neither alleged “error of law” requires correction. 

B. Defendants’ Claimed Factual Errors 

Defendants identify seven alleged factual errors in the Court’s opinion—errors which 

must be “manifest” and pertain to “questions of substance” to warrant relief under Rule 52(b). 

Defendants’ errors fall far short of that standard. Most concern additional facts that Defendants 

wish the Court would add to its opinion, not factual errors on substantive issues that would 

meaningfully change the Court’s analysis. All can be described as quibbling on the margins.3

 

Nevertheless, the Court will address each factual “error” that Defendants protest. 

First, Defendants argue that the Court erroneously “omitted * * * from its summary” of 

Plaintiff’s post-Rosebud job seeking regimen that Plaintiff testified that “in addition to five hours 

each day he spent on line and then walking the streets for three hours in a four-mile radius in 

Mesa,” he also testified that he “spent another five hours after that three days a week going to 

employment agencies in Mesa.” [315, at 5.] As Defendants acknowledge, the Court provided a 

“summary” of the testimony. Defendants fail to explain why omitting this one fact from a 

summary was either a manifest error or bears on a question of substance in the Court’s opinion. 

 

3

 To the extent Defendants contend that these “corrections” are needed so that the Seventh Circuit will 

have a “complete record” of this case [315, at 6], their Rule 52(b) motion was unnecessary. Defendants’ 

prior motions and hearing transcripts are part of the record. References to specific sentences from these 

motions do not need to be pasted into the Court’s opinion to be part of the “record” for appeal. 

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The Court concluded that Plaintiff’s job search efforts in Arizona “fell somewhere between the 

hyperbolized story that Plaintiff presented” and a “trickle” of job applications. [311, at 33.] 

Leaving one more gratuitous example of Plaintiff’s hyperbole out of the opinion was not error. 

Second, Defendants note that Plaintiff did not provide “evidence relating to the funds he 

received * * * from the Illinois Department of Employment Security [‘IDES’],” as the Court 

requested. [315, at 5.] Defendants argue that “[t]he Court appears to overlook the significance 

of this factual issue its [order], which bears directly” on the back pay award. Id. The Court 

considered and declined to deduct Plaintiff’s unemployment benefits from his back pay award. 

[311, at 44.] Defendants fail to explain how this collateral “factual issue”—presumably, 

Plaintiff’s failure to produce to Defendants evidence regarding the funds that he received from 

IDES [297, at 22]—had any impact on the Court’s factual findings. Plaintiff’s failure to produce 

evidence of a benefit that the Court concluded it would not deduct from the back pay award did 

not impact the award’s size either way. 

Third, although the Court “acknowledge[d] the limited number of written [job] 

applications” that were produced in response to subpoenas, “[t]he Court ignores, however, the 

impact of how [Plaintiff] completed those applications and the mistakes he made and the lies he 

told on his potential entitlement to back pay for those periods” and this should be “incorporated 

into the back pay discussion.” [315, at 5.] It is not clear what factual error Defendants believe 

needs to be corrected in the Court’s opinion based on this testimony. The Court discussed “the 

various false statements that Plaintiff made on his job applications” in its original opinion and 

how they “chip away at Plaintiff’s credibility” and “strengthen Defendants’ efforts to show that 

Plaintiff failed to mitigate his damages.” [311, at 31.] The Court did not “ignore” this evidence 

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or omit this evidence from its back pay discussion, and Defendants’ failure to articulate how this 

evidence should be “incorporated” proves that very point. 

Fourth, Defendants argue that the Court “misstates the facts” about how Plaintiff traveled 

to work at one of his jobs and is inconsistent with other testimony that he used his girlfriend’s 

car, rather than his aunt’s car, to get to work. [315, at 6.] Defendants claim that Plaintiff did not 

offer records to show that the car he used broke down or that this is why he quit his job, and this 

“lack of credibility should be acknowledged” in the record. Id. Absent from this argument is 

any explanation as to how Defendants think that this issue is a “matter of substance” or 

“manifest” error that must be corrected. Even so, the Court stated that “Plaintiff testified that he 

was using his aunt’s car to drive from Gilbert, AZ to Tempe, AZ for his job at Washington 

Inventory Service.” [311, at 42.] That sentence mirrors Plaintiff’s testimony. [See Tr. Apr. 4, 

2016, at 102–03.] That Defendants believe this testimony was also inconsistent with other 

evidence does not mean the Court misstated Plaintiff’s testimony in its opinion. 

Fifth, Defendants argue that the Court should include in its opinion that Plaintiff 

“testified he lied on every application he completed about his criminal background which 

amounted to 5000 applications according to his testimony.” [315, at 6.] Both facts are already in 

the Court’s opinion. [See 311, at 31 (stating, “This evidence does not substantiate Plaintiff’s 

claim that he spent eight hours per day applying for jobs throughout his four years of 

unemployment, which would have yielded hundreds if not thousands of applications” and noting 

that Plaintiff had not included his criminal history on some job applications.).] Defendants fail 

to persuade the Court that any more detail is needed to avoid a “manifest error.” 

Sixth, Defendants argue that Plaintiff “offered no evidence” beyond his own testimony 

“that he quit his job at Labor Ready because he enrolled in college” and that “the Court 

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committed an error of fact in giving [Plaintiff] mitigation credit during this period” in light of the 

“absence of any school records.” [315, at 6.] Yet Defendants proposed findings of fact on this 

exact subject notwithstanding Plaintiff’s lack of school records. [See 279, ¶ 42 (“Smith testified 

he was a full-time student from September 2010 to the fall of 2011 taking classes six days a 

week for six hours a day.”); id. ¶ 43 (“Smith testified he stopped looking for work because he 

decided to go to school and he did not look for jobs while he was in school”).] It is hard to see 

how the Court erred in finding that Plaintiff testified that he was enrolled in college [311, at 42] 

when Defendants argued that the Court should make this finding and reduce Plaintiff’s backpay 

award based on that finding [279, ¶ 151]. Of course, Defendants do not cite any case law—

indeed, they cite nothing—suggesting that Plaintiff was required to submit his school records 

before the Court could evaluate whether Defendants met their burden to show that Plaintiff was 

not entitled to back pay while he was in school. That is because there is no obligation. 

Defendants have failed to show that Court committed a “manifest” factual error on this issue. 

Seventh, Defendants argue that Plaintiff “changed his story * * * about the timing of his 

planning to move to Arizona” in the Phase II trial. They argue that “[t]he Court overlooked a 

significant portion of” Plaintiff’s testimony when it stated, citing page 86 of the trial transcript, that 

Plaintiff’s “admission lacks any substantive detail, such as when Plaintiff spoke about moving to 

Arizona.” [311, at 45.] Plaintiff’s actual testimony on cross-examination was

Q: Isn’t it accurate you talked to your family about moving to Arizona before you 

left Rosebud Farmstand? 

A: Yes. 

[Tr. Apr. 4, 2016, at 86.] If there is “substantive detail” in this exchange about when Plaintiff 

had this conversation, the Court does not see it. The time period of “before you left Rosebud” 

does not refer to a time, date, or even a year. Such an open-ended and undefined time period 

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does not qualify as “substantive detail.” Defendants’ counsel could have asked additional 

questions to clarify this time period, but they did not. Moreover, Defendants do not explain how 

adding the phrase “before you left Rosebud” to the opinion would have actually changed the 

Court’s analysis when the Court already acknowledged that “Defendants’ theory raises a yellow 

flag as to the timing of events leading up to Plaintiff’s move.” [311, at 45.] The Court’s 

description of this testimony was not a factual error warranting relief under Rule 52(b). 

Accordingly, Defendants’ motion to amend the Court’s findings of fact and conclusions 

of law pursuant to Rule 52(b) [315] is denied. 

IV. Rule 59 Motion 

Defendants advance seven arguments in favor of a new trial or remittitur: (1) Plaintiff’s 

“false testimony” in the Phase II equitable hearing “mandates” overturning the jury’s verdict in 

Phase I; (2) Plaintiff’s closing argument was improper; (3) Plaintiff violated several motion in 

limine rulings; (4) Title VII’s damages caps require reducing the jury’s verdict; (5) the 

compensatory damages for Plaintiff’s federal claims were “grossly excessive”; (6) the punitive 

damages for Plaintiff’s federal claims were unconstitutionally excessive; and (7) the damages for 

Plaintiff’s Illinois Gender Violence Act claim were not supported by the testimony. [316.] The 

Court takes each argument in turn. 

A. Whether Plaintiff’s Phase II Testimony Requires A New Phase I Trial 

Defendants correctly note that when this Court was the factfinder in the Phase II 

equitable hearing, the Court made several adverse findings about Plaintiff’s credibility based on 

his Phase II testimony. [See 311, at 30–33, 45.] According to Defendants, Plaintiff’s “rampant 

lying and providing false testimony in Phase II, when the jury no longer was present, supports 

the undeniable conclusion that [Plaintiff’s] testimony before the jury during Phase I similarly 

suffered from the same infirmities.” [316, at 8.] Defendants’ argument has two features: (1) 

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Plaintiff’s subsequent testimony and the Court’s credibility findings about that testimony are 

sufficient to set aside the jury’s verdict; and (2) the Court’s “pre-trial evidentiary rulings had a 

prejudicial impact on Defendants’ ability to expose [Plaintiff’s] significant credibility problems.” 

Id. at 9–10. Neither argument can succeed. 

Defendants’ first contention conflates multiple issues. To start, a district court “cannot 

grant a new trial just because it believes the jury got it wrong.” Whitehead v. Bond, 680 F.3d 

919, 928 (7th Cir. 2012). The relevant issue for a Rule 59 motion is not whether Plaintiff’s 

testimony—standing alone and regardless of all other evidence in the case—was credible; it is 

whether the jury’s verdict is against the “manifest weight of the evidence.” Venson, 749 F.3d at 

656. “In conducting its own assessment of the evidence presented, the district court cannot 

remove a piece of evidence from the calculus merely because the court believes it was not 

credible and then, with that piece excluded, grant a motion for a new trial because the verdict is 

now against the weight.” Mejia v. Cook Cty., Ill., 650 F.3d 631, 633 (7th Cir. 2011). “[T]he 

district court is bound to the same evidence the jury considered, and can strike a piece of 

evidence from its weighing process only if ‘reasonable persons could not believe’ it because it 

‘contradicts indisputable physical facts or laws.’” Id. Defendants do not attempt to show that 

the inconsistencies in Plaintiff’s Phase I and II testimony satisfy this standard. 

Furthermore, Phases I and II involved different factfinders who decided different 

questions based on different witnesses’ testimonies. In Phase I, it was “the jury’s job—not the 

district court’s job * * *—to figure out who’s telling the truth.” Lowe v. Consol. Freightways of 

Delaware, Inc., 177 F.3d 640, 643 (7th Cir. 1999). Defendants cite no authority by which a 

judge can substitute his or her credibility assessments from one stage of a bifurcated trial for the 

jury’s assessments at another stage. In the typical case, the judge “does not act as a 13th juror in 

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approving or disapproving the verdict.” Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995) 

(citations and internal quotations omitted). That principle is not inapplicable simply because this 

case involves equitable and legal issues that were required to be bifurcated. 

Likewise, the fact that Plaintiff’s Phase II testimony had credibility problems does not 

equate to a finding as a matter of law that every single statement Plaintiff ever made under oath 

was a lie. The sheer breadth of Defendants’ argument shows its unworkability. Plaintiff did not 

testify in a vacuum. The jury heard from other witnesses who corroborated various aspects of 

Plaintiff’s allegations, including his racial harassment claims. [See, e.g., Tr. Dec. 8, 2015, at 

270; 272, 278–79; Tr. Dec. 10, 2015, at 928–929, 938–39.] The jury also heard from 

Defendants’ witnesses, who had significant credibility issues of their own. [See, e.g., Tr. Dec. 

12, 2015, at 1119.] In the context of this case, the claim that the jury should have concluded that 

Plaintiff was lying makes little headway where the jury reached the same conclusions about 

Defendants. In short, the jury in this case weighed conflicting testimony and the many, many 

inconsistencies in the record and decided to credit Plaintiff’s allegations over Defendants’ 

denials.4

 “That was the jury’s prerogative,” and it was not against the manifest weight of the 

evidence. Lowe, 177 F.3d at 642–43. The Court will not override the jury’s conclusion based on 

this Court’s separate responsibility for determining credibility in a different stage of the case. 

To be clear, Defendants are correct that “[i]f a verdict is based on false testimony, the 

district judge has the discretion under Rule 59 to grant the injured party a new trial.” Antevski v. 

Volkswagenwerk Aktiengesellschaft, 4 F.3d 537, 540 (7th Cir. 1993). To satisfy this standard, 

 

4

 Defendants assert that “it is inconceivable that any rational jury could believe what Smith testified 

happed at work for a period of five years could have happened in a public workplace and that he endured 

this outlandish, alleged conduct for so long and did not quit much earlier.” [316, at 10–11.] That is 

undoubtedly a question that many victims of sexual harassment and workplace abuse have faced. A 

rational jury could have found that Plaintiff did not find the prospect of leaving his minimum wage job 

and risking extended unemployment so easy despite the unrelenting racial and sexual harassment that he 

faced. To say this conclusion is irrational is to deeply misunderstand these complicated dynamics. 

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17 

however, Defendants “must show that they maintained a meritorious claim at trial and that 

because of [Plaintiff]’s fraud or misrepresentation—in this case, the presentation of false 

testimony—they were prevented from fully and fairly presenting that claim.” Othman v. City of 

Chi., 2016 WL 612809, at *2 (N.D. Ill. Feb. 16, 2016) (collecting cases). Defendants do not 

come close to doing so. 

First, Defendants never establish that Plaintiff’s testimony was false. Rather they claim 

that the Court has “good reason to believe that [his] Phase I testimony was equally implausible” 

as his Phase II testimony. [316, at 10.] For example, Defendants argue that Plaintiff’s “trial 

testimony about being subject to daily” racial and sexual harassment over a five-year time period 

“is strikingly similar in style to his incredible description of his job search efforts.” Id. at 9. 

That kind of loose comparison does not prove falsity. Moreover, Defendants note that Plaintiff 

gave “false testimony” in Phase II “about where he lived, the cars he drove, how he looked for 

jobs and his lies about his criminal history [on his job application].” Again, none of that 

testimony on collateral issues establishes that Plaintiff testified falsely that he was subject to 

racial and sexual abuse by Defendants. Indeed, Defendants mostly highlight examples where 

Plaintiff’s Phase II testimony was inconsistent. “But in order to warrant a new trial, 

inconsistencies are not enough; the evidence presented at trial must be false, and [Defendants] 

must prove the falsity—a form of fraud under Rule 60(b)(3)—by clear and convincing 

evidence.” Othman, 2016 WL 612809, at *3; White v. Anthology, Inc., 2009 WL 4215096, at *2 

(N.D. Ill. Nov. 16, 2009) (explaining that the standards under Rule 60(b)(3) and Rule 59 are the 

same). “Merely pointing out an inconsistency in testimony—absent any proof that the trial 

testimony was actually false—is insufficient to warrant the ‘extraordinary remedy’ of a new 

trial.” Othman, 2016 WL 612809, at *3. And a claim that the Court should infer Plaintiff was 

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18 

not credible about all subjects based on his subsequent testimony about different subjects is not 

the same as demonstrating by clear and convincing evidence that Plaintiff gave “false testimony” 

under oath before the jury. 

Second, Defendants do not explain how Plaintiff’s inconsistent Phase II testimony 

precluded them from fully and fairly presenting their case before the jury. Plaintiff’s “false 

testimony” from Phase II was generated after the Phase I jury trial, which means this future 

impeachment material did not exist at the time of jury trial. Defendants do not articulate how 

they were prevented at the time at the time of the Phase I trial from fairly presenting their Phase I 

case because, for example, Plaintiff had not yet testified inconsistently about whether he used his 

Aunt’s or girlfriend’s car to commute to work in Arizona. Defendants’ presentation of their case 

before the jury could not have been impeded by their inability to introduce testimony from the 

future about largely collateral impeachment subjects. Defendants cite nothing to the contrary.5

In fact, Defendants do not claim that Plaintiff’s future false testimony inhibited their case 

at all (which is sufficient to fall short of satisfying Antevski). Instead, they argue that it was the 

Court’s motion in limine rulings that did so, which they say had a “prejudicial impact” on their 

“ability to expose” Plaintiff’s credibility issues. [316, at 9.] Of course, every evidentiary ruling 

that did not go Defendants’ way may have caused some vague amount of “prejudice” in the 

sense that it limited their ability to admit certain evidence or make certain arguments. U.S. ex 

rel. Williams v. Lane, 644 F. Supp. 1449, 1456 (N.D. Ill. 1986) (“Of course every adverse 

 

5

 Many of these inconsistencies are strained. Plaintiff testified in Phase II that “talked to [his] family 

about moving to Arizona before [he] left Rosebud,” which occurred in June 2008 [Tr. Apr. 4, 2016, at 

86], but he testified in Phase I that he “first found out that [he was] going to be moving to Arizona * * * 

like around the first week of July [2008]” [Tr. Dec. 14, 2015, at 1376]. It is possible that Plaintiff 

discussed moving to Arizona in June before his move was confirmed in July. Again, Defendants failed to 

ask about when the Phase I conversation occurred. Even assuming these answers are inconsistent, 

Defendants fail to persuade the Court that they did not received a fair trial because they could not elicit 

this weak impeachment on an issue irrelevant to Plaintiff’s sexual and racial harassment claims. 

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evidentiary ruling leaves a party with one less fact to put before (and argue to) the jury.”). That 

does not mean that the ruling was wrong or led to an unfair trial. See, e.g., U.S. ex rel. Howse v. 

Carter, 1998 WL 422294, at *4 (N.D. Ill. July 22, 1998) (“A criminal defendant has a 

constitutional right to present evidence in his or her defense, but that does not make every 

exclusion of evidence potentially favorable to the defendant a constitutional violation.” (internal 

citation omitted)). 

Indeed, Defendants never explain how they think the Court erred in any of its in limine 

rulings, merely claiming that these decisions “unfairly stifled Defendants’ ability to expose 

before the jury [Plaintiff’s] propensity to lie and willingness to lie under oath.” [316, at 9.] For 

example, Plaintiffs complain that the Court “limited Defendants’ inquiry into [Plaintiff’s] 

criminal felony conviction to one question” and precluded use of his job applications to show his 

“propensity to lie.” Id. Plaintiff has two convictions—one of which was over ten years old and 

excluded under Federal Rule of Evidence 609(b) and the other was admitted under Federal Rule 

of Evidence 609(a), but sanitized pursuant to Schmude v. Tricam Industries, Inc., 556 F.3d 624 

(7th Cir. 2009). [223, at 10.] The Court allowed Defendants “to elicit testimony that Plaintiff is 

a convicted felon, the date of the conviction, and the sentence imposed.” Id. Plaintiff’s counsel 

asked those questions during Plaintiff’s direct examination [Tr. Dec. 9, 2015, at 516–17], and 

then Defendants asked roughly fifteen questions about this same topic on cross [Tr. Dec. 10, 

2015, at 866–868]. The Court also allowed Defendants to explore the fact that Plaintiff lied on 

his job applications, but precluded use of “extrinsic evidence * * * to attack the witness’s 

character for truthfulness” pursuant to Federal Rule of Evidence 608(b). [See Tr. Dec. 7, 2015, 

at 110–112; 223, at 8 n.1] Defendants asked about ten questions on this subject. [See Tr. Dec. 

10, 2015, at 794–95.] Defendants do not explain how Plaintiff’s job applications themselves 

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20 

(i.e., extrinsic evidence) were admissible in this context or the Court abused its discretion in 

sanitizing Plaintiff’s conviction. Asserting that the Court “limited” Defendants to “one question” 

reimagines the trial record. Defendants fail to show that any of the Court’s evidentiary rulings 

were erroneous, “the[se] error[s] ha[d] a substantial and injurious effect or influence on the 

determination of a jury, and the result [was] inconsistent with substantial justice.” Cerabio LLC 

v. Wright Med. Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005) (internal citations omitted). 

Accordingly, no new jury trial is warranted based on Plaintiff’s Phase II testimony. 

B. Plaintiff’s Closing Argument 

Plaintiff’s closing argument did not get off to the best start. In this sexual and racial 

harassment case, Plaintiff’s attorney began his closing as follows: 

[Plaintiff’s Counsel]: About two weeks ago, we in our country suffered a tragedy 

in San Bernardino, California, linked to terrorism. Within the last few weeks in 

Paris, terrorists – 

[Defendants’ Counsel]: Objection, your Honor. This is beyond the scope this 

trial. 

THE COURT: You have got 45 minutes, so I would cut to the chase, but I don’t 

find anything objectionable at the moment. 

[Plaintiff’s Counsel]: Terrorists murdered innocent people laughing and eating 

their dinner at a restaurant and other places. In the Middle East terrorists have 

murdered tens of thousands of people creating chaos in countries not having the 

order of law. A country that does not have laws to protect the common good is a 

country that breeds anarchy. Merriam Webster’s dictionary defines anarchy as “A 

situation of confusion and wild behavior in which the people in a country, group, 

organization, et cetera, are not controlled by rules or laws.” Anarchy fuels the 

terrorists need for control. It’s all about power. Power to control others. In my 

research over the years, some social scientists have stated that sexual harassment 

–- 

[Defendants’ Counsel]: Your Honor, he’s talking about giving an opinion on 

social science research which is not in the record. 

[Plaintiff’s Counsel]: This is a closing argument. They can disregard it. They 

can accept it. 

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21 

THE COURT: I’m going to overrule the objection. You can use your 45 minutes 

as you see fit within bounds, and so far you haven’t crossed the bounds, so go 

ahead. 

[Plaintiff’s Counsel]: Some social scientists have stated that sexual harassment is 

not about sexual desire; it’s about power. The same can be said for racial 

harassment. Power over the person to abuse the person, to make the other person 

feel less. Make them their slave. * * * 

[Tr. Dec. 14, 2015, at 1377–78.] Plaintiff’s attorney then repeated throughout his closing that 

Rosebud “is a company without rules” and a “company that breeds anarchy in which employees 

engage in wild behavior, and use that wild behavior over Mr. Smith.” Id. at 1379.6

Defendants argue that Plaintiff’s “terrorism analogy” and “terrorism theme” was “clearly 

injurious,” “highly inflammatory,” and “clearly intended to poison the jury against Defendants.” 

[316, at 12–13.] Moreover, Defendants contend that they “objected twice to this argument,” and 

suffered “substantial prejudice” when “the Court characterized the theme as nothing 

objectionable.” Id. at 12. These arguments—which play fast and loose with the record—do not 

require a new trial in this case. 

Let’s start with Defendants’ objections. Defendants concede that (at most) they 

“objected twice to this argument,” with both objections occurring in the opening moments of 

Plaintiff’s closing. [316, at 12.] Defendants’ failed to object to any of the other anarchy 

references in Plaintiff’s closing and cannot now complain of those comments. See, e.g., Miksis 

v. Howard, 106 F.3d 754, 764 (7th Cir. 1997) (“Because defendants did not object to any other 

 

6

 [See also Tr. Dec. 14, 2015, at 1381 (“Because all of us, including the Judge, the lawyers, and you, must 

follow the law. Because if we don’t, we’re going to get closer and closer, if not today, then tomorrow, to 

anarchy.”); id. at 1388 (“No rules against sexual harassment, so why would they correct it? No policies 

against racial harassment, so why would they correct it? It’s open game. It’s anarchy as defined by 

Merriam Webster. Wild behavior.”); id. at 1391 (“So the employees feel they have free reign. It’s wild 

behavior. Our definition of anarchy as defined by Merriam Webster. Those are the claims.”); id. at 1398 

(“Remember Merriam Webster says anarchy involves wild behavior. No rules. And that’s what we find 

at Rosebud. Uncontrolled behavior.”); id. 1401 (“But without a strong foundation we, as a country, will 

collapse. We’ll become like other parts of the world that have no order of law, that have anarchy. They 

have wild behavior.”); accord 316, at 12 (citing these same transcript pages).] 

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comments, they did not preserve them for appellate review”). The time to object was during or 

immediately after closings, not in a post-trial motion over a year later. See Gonzalez v. Volvo of 

Am. Corp., 752 F.2d 295, 298 (7th Cir. 1985) (holding that the relevant time for objecting to 

“immoderate” comments during closing argument was “at the time the immoderate comments 

were made”); Houskins v. Sheahan, 549 F.3d 480, 494 (7th Cir. 2008) (holding that plaintiff 

waived his objection to statements in defense counsel’s closing by “fail[ing] to object to the 

statements at the time they were made”). 

Of Defendants’ two timely objections, one was to “social science research” not in the 

record. [Tr. Dec. 14, 2015, at 1378.] It had nothing to do with “terrorism” rhetoric. “Neither a 

general objection to the evidence nor a specific objection on other grounds will preserve the 

issue for review.” Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006) (citation 

and internal quotation marks omitted). Defendants’ other objection—which came halfway 

through Plaintiff’s counsel’s second sentence—was to “scope.” [Tr. Dec. 14, 2015, at 1377.] 

They did not object to prejudice, request a curative instruction, or seek a mistrial. “In this 

circuit, a general objection to ‘relevance’ is not sufficient to preserve an objection under Rules 

404(b) or 403.” United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005) (citation, ellipses, 

brackets, and internal quotation marks omitted); accord United States v. Saunders, 826 F.3d 363, 

371 (7th Cir. 2016). Thus, Defendants’ “scope” objection, which the Court construed to mean 

relevance, did not preserve a Federal Rule of Evidence 403 objection. 

Assuming that Defendants can overcome their preservation issues,7

 this new trial 

argument must still fail. The Seventh Circuit has “repeatedly explained that improper comments 

during closing argument rarely rise to the level of reversible error.” Soltys v. Costello, 520 F.3d 

737, 745 (7th Cir. 2008) (citation and internal quotations omitted). “To warrant a new trial, 

 

7

 Defendants do not attempt to show that they can satisfy plain error. 

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statements made during closing argument must be plainly unwarranted and clearly injurious to 

constitute reversible error.” Jones v. Lincoln Elec. Co., 188 F.3d 709, 730 (7th Cir. 1999) 

(internal quotation marks and brackets omitted). This is not one of those rare cases. 

Notwithstanding Defendants’ characterizations, Plaintiff’s “theme” was not terrorism. It 

was lawlessness, anarchy, and wild behavior. Plaintiff’s counsel repeated those statements. 

Statements about “terrorism” did not reappear in his closing after this introduction, and 

describing Plaintiff as perpetuating a “poisonous terrorist theme” [316, at 12] is simply 

inaccurate. In the context of a case about ongoing sexual and racial harassment and testimony 

that Defendants had consistently failed to train their workers on these issues, references to 

anarchy and wild behavior do not exceed the bounds of reasonable rhetorical devices. 

That said, Plaintiff’s opening references to terrorist incidents in San Bernardino, Paris, 

and the Middle East are unquestionably over-the-top. International terrorism and violent 

extremism have “no conceivable connection to Defendants” to “a group of guys working at a 

small neighborhood grocery store.” [316, at 13.] And that mismatch was strikingly obvious to 

the jury members, many of whom grimaced when Plaintiff’s attorney started his closing this 

way. See Ruizdelatorre v. City of Miami Beach, 2008 WL 5381431, at *18–20 (S.D. Fla. Dec. 

22, 2008) (declining to grant new trial in a Section 1983 case for false arrest where plaintiff’s 

attorney referenced misconduct at Abu Ghraib during his closing). The Court’s comment that 

Plaintiff’s attorney should “cut to the chase”—a comment that came approximately 15 seconds 

into the start of his closing—confirmed this subject’s inapplicability for the jury.8

 Defendants 

may not have objected further because they though these references risked backfiring and 

 

8 In response to Defendants’ “scope” objection and having heard a sentence and a half of Plaintiff’s 

closing, the Court also said that it did not “find anything objectionable at the moment.” [Tr. Dec. 14, 

2015, at 1377 (emphasis added).] To extrapolate from that exchange that the Court blessed the rest of 

Plaintiff’s closing [316, at 12] misconstrues the record. 

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alienating the jury. Or Defendants could have withheld their objections because they thought 

that any reasonable jury would have seen through any purported analogy between terrorism and 

sexual harassment in the workplace. In light of the glaring disconnect between this case about 

sexual misconduct at a small butcher shop on the South Side of Chicago and references to 

“Middle East terrorists” murdering thousands of people, Plaintiff fails to persuade the Court that 

these non-sequiturs overwhelmed the juror’s passions and inhibited their ability to rationally 

weigh the rest of the evidence they heard over the other seven days of the trial. These comments 

were not clearly injurious.

Certainly, there are cases where such statements would warrant a new trial. In United 

States v. Tomkins, the defendant was accused of sending “a series of threatening letters to 

investment firms and their employees and then mailed packages to two investment managers 

containing what appeared to be pipe bombs.” United States v. Tomkins, 782 F.3d 338, 341 (7th 

Cir. 2015). Given the clear risk that jury could associate his behavior with terrorism, this Court 

granted the defendant’s motion to exclude the words “terrorist” and “terrorism.” United States v. 

Tomkins, 2012 WL 1357701, at *2 (N.D. Ill. Apr. 19, 2012). Such statements would be equally 

inappropriate in non-terrorism cases with arguable connections to mass casualties or religious or 

politically motivated acts of violence. The same might be said in cases with witnesses who 

practice Islam or are of Middle Eastern national origin. The instant case, however, involved 

Latino workers and employment discrimination. Defendants make no argument that either has 

any plausible present-day connection to terrorism that could trigger a jury’s passions.9

 While 

inappropriate, this rhetoric does not merit a new trial based on the facts of this particular case. 

 

9

 Along these lines, the Court granted Defendants’ motion to exclude evidence relating to any witness’s 

immigration status. [223, at 12.] 

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C. Plaintiff’s Alleged Violations Of Motion In Limine Rulings 

Defendants argue that Plaintiff violated this Court’s motion in limine rulings about wealth 

comparisons, drug use at work, evidence about security cameras, and complaints of other 

employees. Defendants also argue that the Court erroneously admitted co-worker Gary 

Holloway’s deposition testimony in lieu of his live testimony. Defendants face preservation 

obstacles for most of these arguments, and their preserved objections do not warrant a new trial. 

1. Wealth Comparisons 

The Court granted Defendants’ motion to “bar Plaintiff from comparing Defendants’ 

perceived wealth to Plaintiff’s poverty.” [223, at 20–21.] During Plaintiff’s closing, his attorney 

argued 

Let’s take a look at Rosebud. All you have to find is that Rosebud acted with 

reckless disregard of the law. Reckless disregard. They had no training. 

Nothing. Mr. Smith and others have to repeatedly complain, even though there 

are laws that say they have to stop this illegal conduct, be it sexual or racial 

harassment; that’s reckless disregard. It’s thumbing up your nose to the laws and 

saying, “I don’t give a damn what the law says. I’m going to do what I want to 

do. I’m Rosebud. I’m more interested in making $36,000,000 in sales than fool 

around with those laws.” 

[Tr. Dec. 14, 2015, at 1397.] The Court’s in limine ruling prohibited “comparisons” of the 

parties’ “relative” wealth or poverty. [223, at 20–21.] The Court did not preclude references to 

Rosebud’s earnings; Defendants did not move in limine on that subject. [See 183, at 19–20.] 

But even if the Court’s ruling had encompassed mere wealth references, Defendants did not 

object to this comment, which means their argument is not preserved. See Willis v. Lepine, 687 

F.3d 826, 838 (7th Cir. 2012) (“[T]he plaintiffs also contest three other occasions where defense 

counsel allegedly violated the court’s motion-in-limine ruling. But the plaintiffs did not object to 

these three other alleged violations, so the plaintiffs have not preserved this argument for 

appeal.”); Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006) (“When a defendant 

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26 

does not object to the admission of evidence during the trial, the objection is waived and cannot 

be raised for the first time in a motion for new trial or on appeal.”). 

Plaintiff’s attorney treads closer to the line later in his closing. In discussing punitive 

damages, his attorney stated that 

Like I said, you might consider that Rosebud has 36,000,000 in sales. They have 

a retail and a wholesale business and, of course, they’re going to get up here and 

say we’re just a little store with 23 people. They have $1.8 million in salaries and 

over $4 million in real estate. You might remember that [Rosebud’s Secretary] 

got up and said, ‘Well, we haven’t had a profit since 2010.’ Hmm. A lawsuit was 

filed in 2011. You know, there’s a lot of legal ways to take tax deductions, et 

cetera, to reduce your taxes and even show a loss. Did Rosebud want to show a 

loss so they could argue to you that they’ve been at a loss since this lawsuit was 

filed? 

[Tr. Dec. 14, 2015, at 1399.] Following these statements, Plaintiff’s attorney started the 

conclusion of his closing argument by saying 

Finally, as I began this closing statement, I’m going to end it. It’s all about 

power. And the power has shifted to you. Rosebud knew it had power over Mr. 

Smith. He needed a job. Even at $6.50 an hour, he had bills to pay. You have 

the power to make wrong into right. And you may find that the way to do that is 

to choose the option of moving to the next step and finding in favor of Mr. Smith. 

[Tr. Dec. 14, 2015, at 1399–1400.] Once again, Defendants did not object and have not 

preserved this argument. Willis, 687 F.3d at 838. But even if they had, any comparison here is 

indirect at best. Plaintiff’s attorney discussed Defendants’ financial information in the context of 

the amount of a punitive damages award. See, e.g., El-Bakly v. Autozone, Inc., 2008 WL 

1774962, at *5 (N.D. Ill. Apr. 16, 2008) (summarizing Illinois and federal law in the Seventh 

Circuit and concluding that “Defendants’ financial information is relevant and can be considered 

if Plaintiff succeeds in making a showing that he has a colorable claim for punitive damages”). 

He then shifted topics and returned to his overarching argument about how Defendants believed 

they could continue to harass Plaintiff with impunity and why Plaintiff waited so long to quit 

(i.e., his difficult financial circumstances). Closings were not first time that the jury had heard 

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27 

that Plaintiff earned minimum wage or that this theme had come up. [See, e.g., Tr. Dec. 11, 

2015, at 1091.] In other words, the only apparent association between these two distinct 

concepts is their proximity in Plaintiff’s closing argument and their general connection to 

financial status. Such an oblique connection did not violate the Court’s motion in limine ruling 

and does not warrant a new trial. 

2. Drug Use 

Defendants argue that Plaintiff “violated the Court’s order prohibiting questions to or 

about any party relating to alleged drug use at work.” [316, at 14.] That is not what the Court 

ordered. Defendants moved to preclude Plaintiff from introducing evidence regarding alleged 

drug use by Defendants’ employees. The Court denied that motion “to the extent it seeks to 

exclude evidence that, in general, Rosebud Farmstand employees sometimes used drugs during 

work hours,” but granted the motion and excluded evidence “that any party to this lawsuit used 

drugs while at work.” [223, at 15.] Thus, the Court allowed questions about whether witnesses 

observed drug use at work, including “questions to * * * any party” on this subject. 

At least one exchange that Defendants complain of was consistent with the Court’s order. 

Plaintiff was asked on direct examination whether he had “ever witness[ed] other Rosebud 

employees at work -- at Rosebud -- using drugs,” Defendants objected, and the Court overruled 

the objection by directing Defendants’ counsel back to its in limine ruling. [Tr. Dec. 9, 2015, at 

658–59.] Defendants then objected to foundation (id. at 659) and Plaintiff’s attorney attempted 

to lay a foundation by asking how Plaintiff knew that these employees were using drugs (id. at 

660). Defendants do not explain how these questions violated the Court’s actual order. 

Defendants also challenge another exchange, which occurred during Defendant 

Mendoza’s cross-examination: 

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Q: Have you ever had any kind of white powder at Rosebud? 

A: No, I do not know what you’re referring to. 

Q: Have you ever put some white powder on your finger and then stuck it in your 

nose and then sniffed? 

A: (Laughing.) No, never. 

Q: Do you know what cocaine is? 

A: I do know what it is. I do not know it. I do know it’s a drug, but I don’t have 

knowledge of it. 

Q: Have you ever used cocaine at Rosebud? 

A: No, of course not. 

Q: Have you ever seen any of your workers put some white substance on their 

finger, then stick it in their nose and then sniff? 

A: No. 

Q: Or maybe the right word is snort, have you ever seen them snort it, to get it up 

into their nasal area as quickly and as strongly as possible? 

A: No. 

[Tr. Dec. 14, 2015, at 1236.] This exchange directly violated the Court’s order prohibiting 

questions about whether a party used drugs at work [223, at 15], and Plaintiff offers no 

justification for doing so. But two elements are missing from this exchange: any objection from 

Defendants and any answer that significantly prejudiced Defendants. By failing to object to this 

exchange, their objection is waived. Naeem, 444 F.3d at 610. In addition, all of Defendant 

Mendoza’s answers were in the negative and dismissive—laughing at Plaintiff’s counsel for 

asking such questions. Although these questions were improper, the tone and content of 

Defendant Mendoza’s answers likely diffused much of the prejudice from these questions. 

As is plain from this issue and the other transcript excerpts that have been included in this 

opinion, this “trial was far from perfect, but imperfection is not what triggers a new trial. A new 

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trial is granted if the verdict is against the manifest weight of the evidence or if a prejudicial error 

occurred.” Bankcard Am., Inc. v. Universal Bancard Sys., Inc., 203 F.3d 477, 480–81 (7th Cir. 

2000). Following that standard, Defendants fail to show that a new trial is warranted based on 

these unobjected-to questions and answers denying drug use in the context of what the jury heard 

over the course of the entire trial. 

3. Security Cameras 

Defendants argue that Plaintiff “crossed the line when he argued to the jury the inferences 

they should draw based on the presence of security cameras at Rosebud” and violated the Court’s 

motion in limine on this subject. [316, at 15–16.] This framing also misstates the Court’s order. 

The relevant section of the Court’s in limine order is titled “Motion to Bar References to Alleged 

Spoliation or Destruction of Evidence.” [223, at 13.] As the Court explained, Defendants 

moved “to bar Plaintiff from introducing evidence regarding Plaintiff’s prior allegation that 

Defendants destroyed surveillance tapes to hide relevant evidence from Plaintiff.” Id. (emphasis 

added). The Court also agreed that “any argument or inference that Defendants purposefully 

destroyed relevant evidence would be highly prejudicial to Defendants.” Id. (emphasis added). 

The Court agreed that “the only potential probative value of this evidence would be the inference 

that incriminating evidence existed before Defendants destroyed it” and the Court would not 

disturb Magistrate Judge Gilbert’s finding that this would be speculative. Id.10 In other words, 

the Court’s ruling prohibited argument about “destruction” of these video tapes and any 

inferences that could be drawn from that alleged spoliation. It did not preclude inferences “based 

on the presence of security cameras at Rosebud.” [316, at 15.] 

 

10 Magistrate Judge Gilbert’s order addressed whether Defendants had duty to preserve the video tapes 

upon notice of Plaintiff’s lawsuit, and concluded that they did not. [128.] 

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In that context, the comments that Defendants challenge are not improper. Plaintiff 

testified that one security camera is “facing towards the meat counter towards the customers” and 

“you can see what [the employees are] doing and you can see the customer.” [Tr. Dec. 9, 2015, 

at 674.] In closing, Plaintiff’s attorney argued that Defendants knew of the harassment (because 

Plaintiff complained), and then turned to the argument that they “should have known.” [Tr. Dec. 

14, 2015, at 1385–86.] Plaintiff’s attorney argued, “Even if you don’t find that Rosebud should 

have known about that, how about the security videotapes. They’ve got two cameras in the meat 

department.” Id. at 1386. Defendants objected that this issue could pertain to the in limine

ruling and Court allowed Plaintiff’s attorney to proceed but construed Defendants’ objection as a 

standing one. Id. Plaintiff’s attorney continued: 

They have got two security cameras. Carlos Castaneda admitted that he has a 

monitor in his office, and that the security cameras picked up motion. You might 

remember I asked him, “If I were walking around and I moved my arm and put it 

between somebody’s legs and touched their private parts, would the camera pick 

that up?” “Yes.” You would think that if they were so surprised, as everybody 

seems to be practiced to state, when they received Mr. Smith’s charge of 

discrimination, at a minimum they would have checked the security tapes and 

said, “Wait a minute, this never happened. Look at the tapes. Here Department 

of Human Rights, here EEOC, look at these tapes. What Mr. Smith is saying is 

not true, and I’ve got the tapes to show them.” They never did that. I asked 

Carlos Castaneda and just about everybody else. “Did you look at the tapes? Did 

you think about asking about it?” “Oh, no, no, no, we didn’t. No.” Why not? 

Because you already knew what goes on in the meat department. You knew Mr. 

Smith had been complaining over and over and over again. 

Id. at 1387. Plaintiff’s attorney never directly asserts that Defendants destroyed the security 

tapes because they had incriminating evidence on them. He argues that Defendants had no need 

to check these tapes because they already knew that Plaintiff had been sexually harassed. That is 

a permissible inference from the presence of cameras and the testimony from Defendants’ 

witness—neither of which directly presented spoliation issues before the jury. Accordingly, 

these comments did not violate the motion in limine order and do not merit a new trial. 

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4. Other Employee’s Complaints 

Defendants argue that Plaintiff violated the Court’s motion in limine ruling regarding 

evidence of harassment involving other Rosebud employees. [316, at 14.] The Court held that it 

would “not permit mini-trials as to whether Defendants ‘harassed’ or ‘retaliated’ against 

Plaintiff’s co-workers” and Plaintiff was “not entitled to argue that ‘because Defendants harassed 

Plaintiff’s co-workers, they must have also harassed Plaintiff.” [223, at 14.] The Court went on 

to say “[o]bjections to exclude testimony or argument to this end will be sustained.” Id. 

In what has become a familiar pattern, Plaintiff’s attorney violated (or came very close to 

violating) this in limine ruling and Defendants failed to object. In connection with his claim that 

Rosebud had actual knowledge of the harassment, Plaintiff’s attorney argued during closing 

How did Rosebud know? Well, Mr. Smith repeatedly complained. Not only did 

Mr. Smith repeatedly complain, but Corey Barr complained, and Gary Holloway 

complained. Because these Rosebud male employees were doing the same thing 

to them. Humping from behind. When they would bend over, they would put 

their hands in between the legs and touch the testicles and the penis; so Rosebud 

knew. 

[Tr. Dec. 14, 2014, at 1385–86.] Arguably, Plaintiff was not using this evidence of harassment 

to prove that he had been harassed, but to show that Defendants had “knowledge” of widespread 

harassment in the store. See Fed. R. Evid. 404(b). That, however, is a pretty fine distinction and 

could present propensity inference problems. For that reason, the Court may well have sustained 

an objection from Defendants had they made one. But they did not. “The point of the waiver 

rule is to raise objections and provide the trial judge with information before a mistake has 

occurred. Without this rule, litigants would sit on their hands, wait to see the result of the 

litigation, and then if the outcome is unfavorable come back and complain about a problem that 

could have been avoided.” Bankcard, 203 F.3d at 482 (“[Plaintiff] was silent when it mattered 

and now says, ‘Gee, we finally got around to checking the trial transcripts and it turns out the 

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jury received some stuff it shouldn’t have, so let’s have a whole new trial and negate the 2 weeks 

of time that the judge, clerk, court reporter, bailiffs, jurors, witnesses, attorneys, and parties spent 

on the first trial.”). Defendants cannot secure a new trial now having failed to object to these 

comments at trial. 

5. Holloway’s Deposition 

At the end of the trial day on December 8, 2015, the Court asked Plaintiff to call his next 

witness, former co-worker Gary Holloway. [Tr. Dec. 8, 2015, at 442.] Mr. Holloway, who had 

been in the court house that day, could not be found and the Court adjourned for the day. Id. at 

443. The next morning, Mr. Holloway still could not be found. [Tr. Dec. 9, 2015, at 446.] 

Plaintiff’s counsel confirmed that “all efforts to find him either physically or electronically have 

failed.” Id. at 447. The parties agreed that he had been served with a subpoena, and Plaintiff’s 

counsel could not find him at the time he was supposed to testify. Id. at 450. Over Defendants’ 

objections, the Court found that this witness was unavailable under Rule 32(a)(4) and permitted 

the parties to designate certain portions of the transcript in lieu of live testimony. Id. at 448–61. 

The Court then entered a written order further explaining its reasons for admitting this 

disposition testimony. [See 240.] The Court concluded that Plaintiff’s counsel met his burden to 

show he exercised reasonable diligence to procure Mr. Holloway’s live appearance. Id. at 2. 

The Court also noted that the jury had heard live testimony from three other witnesses (including 

Plaintiff) about the alleged racial and sexual harassment at Rosebud, and Mr. Holloway was not 

an “instrumental witness” for either side. Id. at 3 (collecting cases). 

Defendants contend that this ruling was wrong [316, at 16–17], but do not say how other 

than the Court reached the wrong result. They do not discuss the Court’s written ruling, explain 

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why it was wrong, or cite any additional law suggesting this issue entitles them to a new trial.11 

That is plainly insufficient. “Unless justice requires otherwise, no error in admitting or 

excluding evidence—or any other error by the court or a party—is ground for granting a new 

trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or 

order.” Fed. R. Civ. P. 61. “The court must disregard all errors and defects that do not affect 

any party’s substantial rights.” Id. “Evidentiary errors satisfy this standard only if there is a 

significant chance that they affected the outcome of the trial.” Griffin v. Bell, 694 F.3d 817, 827 

(7th Cir. 2012). 

Defendants assert that it was important for the jury to see Mr. Holloway’s live testimony 

because he was “another convicted felon.” [316, at 17.] Mr. Holloway’s felony conviction, 

however, came out during his admitted deposition testimony. [Tr. Dec. 10, 2015, at 927 (“It was 

tough for me to find employment given my background as far as being a felon.”).] Defendants 

fail to explain how the outcome of the trial was changed based on the fact that jury did not hear 

Mr. Holloway testify in person that he was a felon. Defendants also claim that Plaintiff’s 

counsel’s “failure to offer any proof, such as his cell phone or records of calls, emails or other 

evidence such as his own affidavit to substantiate his alleged attempts to locate[] Holloway.” 

[316, at 17.] Of course, Defendants did not argue on the record that Plaintiff’s counsel must 

provide this kind of proof or cite any case that requires this proof. Indeed, at the time, 

Defendants acknowledged that this issue was firmly within the Court’s discretion. [See Tr. Dec. 

9, 2015, at 458 (“It’s a matter of your discretion, and we acknowledge that.”).] As the Court 

 

11 Defendants again cite one case—Griman v. Makousky, 76 F.3d 151 (7th Cir. 1996)—that the Court 

discussed and distinguished in its written order. [240, at 3.] Rehashing this same argument is not 

persuasive. Moreover, in Griman, the Seventh Circuit held that the trial judge had not abused his 

discretion in declining to admit deposition evidence under Rule 32(a)(4)(E). That result does not dictate 

that a court necessarily abuses its discretion if it decides to admit such evidence. See Thomas v. Cook 

Cty. Sheriff’s Dep’t, 604 F.3d 293, 308–09 (7th Cir. 2010) (declining to grant a new trial where 

deposition admitted pursuant to Rule 32); Rascon v. Hardiman, 803 F.2d 269, 277 (7th Cir. 1986) (same). 

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explained in its ruling, Mr. Holloway was a minor witness, Defendants cross-examined him 

when they took his deposition, and the jury had heard similar testimony from three other 

witnesses about racial and sexual harassment at Rosebud. Defendants fail to show that 

admission of this deposition testimony pursuant to Rule 32 was erroneous, affected their 

substantial trial rights, or influenced the outcome of the trial. 

D. Title VII’s Statutory Limitations On Damages 

Title VII claims are constrained by statutory damages caps. See 42 U.S.C. § 1981a(b)(3). 

These caps provide outer limits on “[t]he sum of the amount of compensatory damages awarded 

under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental 

anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive 

damages awarded under this section.” Id. The cap amount is determined by calculating the 

number of an employer’s employees in a calendar year. Here, the parties dispute which cap 

applies and the specific claims to which the cap applies. 

“A defendant bears the burden of proof in establishing the number of employees for the 

purposes of establishing entitlement to a Title VII damages cap.” Geraty v. Vill. of Antioch, 

2014 WL 5801440, at *7 (N.D. Ill. Nov. 7, 2014). Defendant Rosebud submits an affidavit from 

Norman Brucer, Rosebud’s Secretary and custodian of records. [See 316-8; 318.] That affidavit 

attaches payroll records and affirms that “Rosebud, Farm, Inc. consistently [has] had less than 85 

employees at all times.” [318, ¶ 3.] In 2016, for example, Rosebud had a total of 45 employees. 

Id. ¶ 10. Accordingly, Defendants argue that the 100-employee cap applies and Rosebud’s 

damages for Title VII claims are capped at $50,000. See 42 U.S.C. § 1981a(b)(3)(A) (“in the 

case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more 

calendar weeks in the current or preceding calendar year, $50,000”). 

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Plaintiff responds that “no cap applies as Rosebud failed to meet their burden to prove the 

number of their employees.” [321, at 17.] Plaintiff contends that his attorney sent emails in 

October 2016 seeking information about whether Defendants used independent contractors, parttime employees, leased employees, and seasonal employees, and Defendants failed to address 

that issue in their briefs. Id. at 17–18. That may be because Defendants’ attorney said “there are 

no leased employees[,] seasonal employees[,] ICs [independent contractors], etc.” [321-6, at 2.] 

In an attempt to further prove this negative, Rosebud submitted a second affidavit from Mr. 

Brucer making this very point. [324-1, ¶ 3.] This affidavit states that Defendants’ collective 

bargaining agreement precludes leased employees, temporary employees, and independent 

contractors, and any seasonal employees would already be listed on the payroll records. Id. 

Plaintiff does not offer any factual basis to believe these representations are inaccurate and does 

not explain why Defendants’ showing is insufficient.12 Defendants have met their burden to 

show that they employ fewer than 101 employees, and the $50,000 cap applies. 

Plaintiff concedes that if Defendants satisfy their burden, the $50,000 cap covers his 

sexual harassment claim. [321, at 17 (“[O]nly the sexual harassment claim would fall under the 

Title VII cap”).] As a result, neither party disputes that the jury’s $250,000 compensatory and 

$500,000 punitive damages awards for Plaintiff’s sexual harassment claim (Claim 1) must be 

reduced to no greater than $50,000 total. [See 248.] The Court agrees. 

The parties’ other dispute is whether this statutory cap applies to Plaintiff’s retaliation 

claim (Count 3), for which the jury also awarded $250,000 in compensatory and $500,000 in 

 

12 Plaintiff also contends that his attorney also asked whether “Rosebud [was] part of an integrated or 

joint enterprise or had subsidiaries.” [321, at 17–18.] He does not otherwise elaborate on this objection. 

Mr. Brucer’s affidavit includes the number employees who worked at the retail store (where Plaintiff 

worked) as well as the larger wholesale operation. [See, e.g., 318, ¶ 4.] Thus, Defendants appear to have 

met Plaintiff’s objection (at least in part) and Plaintiff does not explain where they fell short (if at all). 

Plaintiff’s cursory statement is not an argument against Defendants’ submissions that the Court can credit. 

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punitive damages. [See 248.] In Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 

1142 (7th Cir. 1999), the Seventh Circuit considered whether a plaintiff could apply the statutory 

caps on a per-claim basis—recovering up to the cap maximum for each of her three racial 

discrimination counts. The Seventh Circuit held that she could not because the cap “sets a 

single-party limit rather than a single-claim limit.” Id. at 1150. The Seventh Circuit reasoned 

that “[t]he unit of accounting is the litigant, not the legal theory,” and expressly endorsed the 

result in Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997). Id. Hudson adopted the same 

conclusion and reasoning in the context of applying one cap to Plaintiff’s sex discrimination, 

retaliation, and constructive discharge claims. Hudson, 130 F.3d at 1199–1201. Other courts 

have done the same. See Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 264 (5th Cir. 2011) 

(holding that sex discrimination claims and a retaliatory termination claim were both subject to 

the same Title VII damages cap); Fogg v. Ashcroft, 254 F.3d 103, 106–10 (D.C. Cir. 2001) 

(affirming reduction of race discrimination and retaliation claims to single, per-lawsuit cap); 

Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1246 (10th Cir. 1999) (affirming order 

“combining her separate damages awards for sexual harassment and for retaliation into a single 

[capped] award”); Rau v. Apple-Rio Mgmt. Co., Inc., 85 F. Supp. 2d 1344, 1347 (N.D. Ga. 1999) 

(“[T]he plain language of § 1981a requires application of the cap to the action as a whole, not to 

each individual claim” for retaliation and sex discrimination claims), aff’d, 251 F.3d 161 (11th 

Cir. 2001). Thus, Title VII’s damages cap applies to both harassment and retaliation claims.13

 

13 Plaintiff’s only citation for any argument to the contrary are to Herrmann v. Cencom Cable Associates, 

Inc., 999 F.2d 223 (7th Cir. 1993) “as cited in” Zamora v. Florida Atlantic University Board of Trustees, 

969 So. 2d 1108 (Fla. Dist. Ct. App. 2007). [321, at 17.] Zamora is a Florida appellate court decision 

interpreting damages caps under Florida’s Civil Rights Act, Fla. Stat. Ann. § 768.28(5), which has 

different language than Section 1981a(b)(3). Herrmann is about whether an action for ERISA benefits 

was res judicata with plaintiff’s Title VII suit. It precedes Smith by half a decade. Neither holds that 

retaliation claims are not subject to Title VII’s damages caps. Plaintiff simply ignores Smith and its 

adoption of Hudson in his response. 

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Unfortunately, that does not resolve the matter here. Plaintiff asserts that the caps do not 

apply to the retaliation claim in this case because Plaintiff’s retaliation claim was “under § 

1981.” [321, at 17.] That is wrong. Plaintiff’s retaliation claim was under both Title VII and 

Section 1981 [246, at 25], and recasting his claim as purely under Section 1981 is a non-starter. 

But that raises another issue. Plaintiff’s “retaliation” claim was presented to the jury as one 

claim: there was one “retaliation” instruction [246, at 30] and one line on the verdict form for 

liability, compensatory damages, and punitive damages for the “retaliation” claim (id. at 38–40). 

Plaintiff states that Defendants “failed to object that the retaliation jury instruction did not 

distinguish between Title VII and § 1981.” [321, at 24.] That is not quite right either. 

Defendants proposed two separate instructions on these claims [182-7, at 40, 45]. They also 

separated the Title VII claim retaliation claim from Plaintiff’s Section 1981 claims on the verdict 

form, but then combined both Section 1981 claims into a single “Racial Harassment” and 

“Retaliation” claim. Id. at 58–59. Defendants also objected to Plaintiff’s proposed combined 

instruction before the jury conference as not providing enough detail. [199, at 3.] They objected 

again at the instruction conference. [Tr. Dec. 11, 2015, at 1194–1201.] 

During the conference, after the parties discussed how crafting two instructions for the 

retaliation claims might confuse the jury and whether the parties would need to point out the 

differences between claims during closing, Defendants brought up the issue of the damages cap. 

The following exchange with the Court occurred next: 

THE COURT: Is the damage cap something that could be addressed in a verdict 

form? How do you propose to address the damage cap? 

[Defendants’ Counsel]: Well, the damage cap under Title VII claims is $50,000. 

THE COURT: And what happens if the jury gives more than that? Then I just -- 

[Defendants’ Counsel]: Well, legally, they’re capped. 

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THE COURT: So I have to reduce it. 

[Defendants’ Counsel]: Section 1981 claim there is no cap, statutory cap on 

damages. 

THE COURT: And for retaliation, how would that play out in the retaliation, 

then? 

[Defendants’ Other Counsel]: Same thing. 

[Defendants’ Counsel]: Same thing. 

THE COURT: No, I understand. But how would that play out if the jury gives an 

award for retaliation, how would we know whether it was the 1981 or the Title 

VII? We’d have to do that in the verdict form, right? 

[Defendants’ Counsel]: Right. 

THE COURT: But in terms of an instruction on the law, I wonder if [Defendants’ 

other counsel] is onto the right idea here, which is you take 90 seconds, if that’s 

important enough to you in your closing and try to explain it to them. If you 

don’t, I think the instruction’s going to go right over their heads anyway. 

[Defendants’ Counsel]: Well, we’ll talk about this after and if we have something 

to get to you, we’ll get it to you. 

THE COURT: That’s fine. * * *. 

Id. at 1198–99. Yet, Defendants did not object to a unified retaliation claim on the verdict form 

when the parties were asked if they had any objections to the verdict form. Id. at 1206–08. The 

parties continued to submit and object to jury instructions over the weekend, but none of 

Defendants’ proposals or objections related to the verdict form. [See Tr. Dec. 14, 2015, at 1214–

31 (summarizing the issues from the parties’ weekend correspondence).] And at no time did 

Defendants submit a verdict form that had two separate entries for Title VII retaliation and 

Section 1981 retaliation. Accordingly, although Defendants were sensitive to the risks of a 

combined claim, they failed to object or submit a verdict form that reflected this problem at the 

moments when it was critical to do so. At a minimum, that constitutes forfeiture. 

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The question, therefore, is what results. Neither side provides this Court with any 

guidance. “Both Title VII and § 1981 support a cause of action for retaliation and require a 

plaintiff to establish the same prima facie elements to recover.” O’Neal v. Ferguson Const. Co., 

237 F.3d 1248, 1258 (10th Cir. 2001); accord Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 

508, 511 (7th Cir. 1986). As a result, the Court has looked to cases where (1) two claims resting 

on substantively similar liability theories were submitted to a jury as a single claim, (2) only one 

of the claims had a damages cap, and (3) the jury awarded damages in excess of the cap. This 

fact pattern arises most frequently where one claim is brought under Title VII (capped) and the 

other is under a state’s anti-discrimination law (uncapped). In such circumstances, courts 

typically reallocate awards between the capped and uncapped claims to maximize the recovery 

awarded by the jury.14 Courts rest their reasoning in part on the fact that Title VII remedies are 

 

14 Bradshaw v. Sch. Bd. of Broward Cty., Fla., 486 F.3d 1205, 1207–08 (11th Cir. 2007) (“To declare that 

any part of [plaintiff’s] injury could be remedied under only one of the two statutes would be senseless; 

* * * So if Title VII cannot remedy the full extent of her injury because of its damage cap, then the 

remaining portion of her injury should be remedied as much as possible under the Florida [Civil Rights 

Act], and vice versa.”); Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 66 (1st Cir. 2005) 

(“Several appeals courts have addressed the problem of allocating damages where the jury provides one 

damage award for parallel state and federal discrimination claims but the award exceeds the applicable 

federal cap. All have approved the method employed by the district court here, namely, considering the 

unspecified award as fungible between the state and federal claims and allocating the award so as to 

maximize the plaintiff’s recovery while adhering to the Title VII cap.”); Hall v. Consol. Freightways 

Corp. of Del., 337 F.3d 669, 679–80 (6th Cir. 2003) (“[W]here the jury was instructed in such a fashion 

sufficient to support punitive damage awards under both the federal as well as the state statute, Plaintiff 

should be entitled to the balance of the award in excess of the federal $300,000 cap under state law.”);

Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 570–71 (3d Cir. 2002) (“§ 1981a does not prevent a 

claimant from recovering greater damages under a state law claim that is virtually identical to a capped 

federal claim” and “given the similarity of the claims and the jury’s unapportioned award of damages 

* * * it was entirely reasonable for the trial court to apportion the damages so as to allow [plaintiff] to 

recover the entire jury award, as reduced by the district court.”); Martini v. Fed. Nat. Mortg. Ass’n, 178 

F.3d 1336, 1349 (D.C. Cir. 1999) (holding that where jury allocated damages under the Title VII claim 

and the state civil rights claim and damages on the Title VII claim exceeded the cap, the district court 

should have reallocated those damages to the state claim); Mascarella v. CPlace Univ. SNF, 2015 WL 

5304102, at *5 (M.D. La. Sept. 8, 2015) (“As the Court held previously, Plaintiff’s federal claim award is 

limited to $300,000.00 by § 1981a. Accordingly, the Court will allocate $240,000.00 in compensatory 

damages to Plaintiff’s state law discrimination claim.”). The reallocation sometimes works by allocating 

damages from the state claim to the federal one. See, e.g., Johnson v. Texarkana Arkansas Sch. Dist. No. 

7, 2012 WL 527907, at *5 (W.D. Ark. Feb. 16, 2012) (“Because the retaliation claim was submitted to the 

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not be construed to limit state law claims. See 42 U.S.C. § 2000e-7 (“Nothing in this subchapter 

shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment 

provided by any present or future law of any State or political subdivision of a State[.]”). A 

similar limitation exists with respect to Section 1981 claims. See 42 U.S.C. § 1981a(b)(4) 

(“Nothing in this section [concerning damages caps] shall be construed to limit the scope of, or 

the relief available under, section 1981 of this title.”). The few courts to have considered this 

issue in a similar posture have reached the same result. See Pavon v. Swift Transp. Co., 192 F.3d 

902, 910 (9th Cir. 1999) (affirming the district court’s reasoning that ‘“[t]o the extent that 

plaintiff’s damages exceed $300,000, the excess can be attributed to claims other than those 

brought under Title VII’” and concluding that defendant “misreads the statute to argue that 

[plaintiff] was entitled to remedies under only one, but not both federal statutes. Section 1981a 

does not force a plaintiff to choose between Title VII and § 1981 remedies[.]”); Kim v. Nash 

Finch Co., 123 F.3d 1046, 1064 (8th Cir. 1997) (“Because § 1981 was a basis for recovery, the 

Title VII cap on compensatory and punitive damages does not apply.”). 

Mindful of this case law from other circuits and Congress’s statutory command, the Court 

agrees that Section 1981a(b)(3)’s damages cap applies to both Plaintiff’s sexual harassment 

claim and the Title VII component of his retaliation claim and limits his total combined damages 

award to, at most, $50,000 for these two claims. The Court allocates the remainder of the 

damages from Claim 3 to Plaintiff’s Section 1981 retaliation claim. 

Section 1981a(b)(3) “contains no command as to how a district court is to conform a jury 

award to the statutory cap.” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 441 

(7th Cir. 1997). The Seventh Circuit has “upheld a decision that took the entire cut out of the 

 

jury under a single instruction and theory, the Court will not apply the Arkansas damages cap to override 

the uncapped § 1983 claim. Any award beyond the Arkansas damages cap is simply allocated to the § 

1983 retaliation claim.”). 

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award of punitive damages and another that took the entire cut out of the award of compensatory 

damages.” Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004). It has also noted that “in a 

normal suit punitive damages are something added on by the jury after it determines the 

plaintiff’s compensatory damages,” so it is “probably the sensible thing for the judge * * * not to 

make a pro rata reduction * * * but instead to determine the maximum reasonable award of 

compensatory damages, subtract that from $300,000, and denote the difference punitive 

damages.” Id. Compensation is the primary purpose of Section 1981(a)’s remedies, and “[t]he 

more common approach is to take the entire cut from punitive damages.” Alford v. Aaron’s 

Rents, Inc., 2011 WL 2669626, at *1 (S.D. Ill. July 7, 2011); accord Tart v. Elementis Pigments, 

Inc., 191 F. Supp. 2d 1019, 1024 (S.D. Ill. 2001); Williams v. Pharmacia Opthalmics, Inc., 926 

F. Supp. 791, 794 (N.D. Ind. 1996). 

Here, the jury found that Plaintiff required a significant damages award to compensate 

him for Defendants’ sexual harassment and retaliation. Consistent with that judgment, the Court 

will first apply the jury’s compensatory award toward the statutory cap. That award exhausts the 

entire $50,000 limit, leaving no room for additional punitive damages. The Court reduces the 

$250,000 compensatory damages award for the sexual harassment claim to $50,000 and vacates 

the jury’s $500,000 punitive damages award for Claim 1. Because no additional damages can be 

awarded under Title VII, Plaintiff’s entire $250,000 compensatory damages award and $500,000 

punitive damages award for Claim 3 must be reallocated to the Section 1981 retaliation claim. 

E. Whether Plaintiff’s Compensatory Damages Awards Are Excessive 

“When it is apparent as a matter of law that certain identifiable sums in the verdict should 

not be there, or where the compensatory award results in a windfall or is excessive, the verdict 

must be reduced accordingly.” O’Sullivan v. City of Chi., 474 F. Supp. 2d 971, 973 (N.D. Ill. 

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2007). “To determine whether an award of compensatory damages is excessive, we consider 

whether the damages awarded (1) were monstrously excessive; (2) had no rational connection 

between the award and the evidence; and (3) were roughly comparable to awards made in similar 

cases.” E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 833 (7th Cir. 2013). “Remittitur is a common 

feature in Title VII and other cases involving damage awards for emotional anguish.” 

O’Sullivan, 474 F. Supp. 2d at 974. “If the court decides that a remittitur is appropriate, the 

plaintiff has the choice to either accept the remittitur or receive a new trial on damages.” Florez 

v. Delbovo, 939 F. Supp. 1341, 1343 (N.D. Ill. 1996). “If the plaintiff accepts the remittitur, the 

motion for a new trial on damages must be denied.” Id.

Defendants argue that the compensatory damages awards for Plaintiff’s Title VII sexual 

harassment claim, Section 1981 racial harassment claim, and his retaliation claim are all “grossly 

excessive” relative to the evidence presented. [316, at 19.] These arguments largely track 

Defendants’ arguments for judgment as a matter of law under Rule 50, which the Court 

previously denied. [311, at 4–20.] To the extent these arguments materially differ, the Court 

will address them here. 

Defendants contend that there was “limited testimony at trial supporting [Plaintiff’s] 

claim for compensatory damages.” [316, at 20.] They emphasize that Plaintiff said his work 

performance was excellent and he did not seek psychological help. Id. But they omit that 

Plaintiff testified he did not seek psychological help because he “didn’t have money to go to a 

therapist.” [Tr. Dec. 10, 2015, at 788.] Defendants acknowledge that Plaintiff testified that he 

does not “feel comfortable when [he] see[s] Hispanic men,” and puts his back against the wall 

when he is in the same room so that they can walk by him. Id. But they omit that the evidence 

substantiating this professed anguish was Plaintiff’s two days of testimony about incidents where 

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his Rosebud co-workers “touched, grabbed, and fondled his private parts during work hours” and 

that this conduct was sufficiently severe or pervasive enough to create a hostile or abusive 

atmosphere. [311, at 7–8.] Plaintiff also testified that after he filed his EEOC charge on January 

7, 2008, co-workers harassed him by telling him that he was no longer welcome at Rosebud, 

slamming knives on cutting boards when he was nearby, breaking Plaintiff’s portable television, 

scratching his car, cracking his windshield, slashing his tires, and walking by him carrying trays 

of meat with protruding knives such that Plaintiff had to move to avoid being cut. Id. at 11. 

Plaintiff further testified that these actions made him feel “unwelcome,” “disrespected,” 

“nervous,” and “scared,” and ultimately caused him to quit his job. Id. (citing Tr. Dec. 10, 2015, 

at 782–83). Mr. Holloway testified that he saw Plaintiff cry based on some of this physical 

abuse. [Tr. Dec. 10, 2015, at 919–20.] Defendants also cite Plaintiff’s testimony that he “had to 

start taking pain medication”—specifically ibuprofen—for headaches at the end of the day after 

work, which he took about twice a day for five years. [Tr. Dec. 9, 2015, at 666–67.] 

Defendants mainly argue that the jury’s $750,000 total compensatory damages award is 

“monstrously excessive” based on this testimony. [316, at 21.] But that argument is moot 

because one of those $250,000 awards must be reduced by Title VII’s statutory cap. Defendants 

fail to persuade the Court that a $50,000 award for Plaintiff’s sexual harassment and Title VII 

retaliation claims is excessive, let alone that the jury’s award for these claims should be remitted 

to zero. Generally, a “statutory cap suggests that an award of damages at the capped maximum 

is not outlandish.” AutoZone, 707 F.3d at 840. “An award for nonpecuniary loss can be 

supported, in certain circumstances, solely by a plaintiff’s testimony about his or her emotional 

distress.” Tullis v. Townley Engineering & Manufacturing Co., 243 F.3d 1058, 1068 (7th Cir. 

2001). In this circumstance, “[i]t was the jury’s job to gauge [Plaintiff’s] distress and determine 

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an appropriate amount to compensate [him].” Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 

1023 (7th Cir. 2016). That the jury chose to credit Plaintiff’s testimony about his mental distress 

does not render a $50,000 award outlandish or inappropriate. 

Cases have permitted comparable awards. See, e.g., Gracia, 842 F.3d at 1023 (affirming 

decision declining remittitur beyond the $50,000 statutory cap based on testimony that plaintiff 

was depressed following her job loss); Marion Cty. Coroner’s Office v. E.E.O.C., 612 F.3d 924, 

931 (7th Cir. 2010) (remitting $200,000 award to $20,000 where plaintiff’s “suffering was 

extremely brief and only indicated that [plaintiff] had undergone ‘[w]eekly’ therapy sessions for 

‘[s]everal months’ for ‘[s]ituational depression’”); Fleming v. Cnty of Kane, 898 F.2d 553, 561–

62 (7th Cir. 1990) (affirming remittitur $80,000 damages award to $40,000 where plaintiff 

discharged for whistle-blowing activities suffered embarrassment, humiliation, depression, 

serious headaches, and sleeplessness); David v. Caterpillar, Inc., 185 F. Supp. 2d 918, 923–24 

(C.D. Ill. 2002) (remitting compensatory damages award to $50,000 where plaintiff withdrew 

from her normal activities “for about a two-week period, had difficulty sleeping, cried, and 

experienced stomach aches” and became depressed), aff’d, 324 F.3d 851 (7th Cir. 2003). But 

“[a]wards in other cases provide a reference point that assists the court in assessing 

reasonableness; they do not establish a range beyond which awards are necessarily excessive.” 

Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 566 (7th Cir. 2006) (explaining that 

precise analogizing to other cases is not necessary). Title VII cases are fact specific, which 

makes comparisons to other cases “rarely dispositive.” Id. A $50,000 compensatory damages 

award is reflective of the testimony in this case about Defendants’ persistent harassment and 

extensive retribution, Plaintiff’s persistent headaches, his inability to afford therapy, and his 

ongoing fears of further sexual assault by Hispanic men. The Court cannot say that an award of 

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this size for this conduct is “merely the product of the jury’s fevered imaginings or personal 

vendetta.” E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1285 (7th Cir. 1995). 

The jury’s $500,000 compensatory damages awards for Plaintiff’s racial harassment and 

retaliation claims under Section 1981 are a different story. Defendants urge the Court to apply 

Title VII’s cap to Plaintiffs Section 1981 claims [316, at 19] even though Section 1981 is not 

limited by Title VII’s damages cap, 42 U.S.C. § 1981a(b)(4). Not only would such a result 

offend Congress’s express direction to the contrary, but the Court has stated no fewer than three 

times throughout this case that Plaintiff’s Section 1981 claims are not subject to damages caps. 

[See 30, at 14 n.3; 165, at 24 n.9; 311, at 3. n.3.] That is the law of the case. Defendants cite no 

court that has enforced these caps against a Section 1981 claim in the compensatory damages 

context, and that omission is telling. Thus, the relevant issue is whether the evidence at trial can 

support a $250,000 compensatory damages award for Plaintiff’s Section 1981 racial harassment 

claim and a $250,000 compensatory damages award for Plaintiff’s Section 1981 retaliation 

claim. The Court concludes that it cannot. 

“It goes without saying that the courts can and should preclude double recovery by an 

individual.” Gen. Tel. Co. of the Nw. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 

333 (1980). As far as the Court can tell, the only specific injury compensated through Plaintiff’s 

racial harassment claim was emotional distress from being called racial epithets throughout his 

tenure with Rosebud. That is the evidence that Plaintiff highlights now. [321, at 19–20 (citing 

Tr. Dec. 10, 2015, at 896–97).] The same is true for the emotional distress Plaintiff experienced 

based on Defendants’ retaliatory conduct. [Tr. Dec. 10, 2016, at 782–83.] Similarly, his closing 

argument asked or compensation for “racial insults,” “feeling rejected,” “loss of enjoyment,” and 

“loss of good feelings.” [Tr. Dec. 14, 2015, at 1396.] That is about it. 

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Plaintiff’s headaches and increased use of ibuprofen was, at a minimum, not claim 

specific (indeed, it could have had any number of causes) and stopped in 2009. [Tr. Dec. 9, 

2015, at 666–67.] Incremental increased ibuprofen use cannot support a $500,000 award, and 

Plaintiff has already received compensation for this injury through the award for his Title VII 

claims. Likewise, when asked why Plaintiff does not “feel comfortable” around Hispanic men 

and puts his back against wall, he testified that it was based Defendants’ sexual harassment and 

retaliatory conduct—not their racial harassment. [See Tr. Dec. 10, 2015, at 788–97 (“Q: What 

about your experience at Rosebud causes you to feel you have to get out of the way and put your 

back against the wall? A: Getting my dick grabbed. Getting my ass grabbed. Getting my balls 

grabbed. Machetes being slammed on the meat counter. Being humped on. You know, just all 

that I went through working there is the reason why I did what I did.”). Said differently, Plaintiff 

does not describe any ongoing depression, medical or psychological treatment, or articulable 

consequences from conduct traced to his racial harassment claim—a conclusion confirmed by 

the fact that none of those harms were discussed by Plaintiff in closing. Even accepting that 

some aspect of this injury might still require compensation through his Section 1981 retaliation 

claim, a significant portion has been compensated through Plaintiff’s Title VII award. 

Plaintiff compares this case to Zeno v. Pine Plains Central School District, 702 F.3d 655 

(2d Cir. 2012) [321, at 20], but that case actually provides a helpful contrast to this one. In Zeno, 

a jury awarded a high school student $1.25 million for Title VI violations based on allegations 

that he was subject to daily racial harassment when he transferred to a predominately white 

school. The district court remitted that award to $1 million and the Second Circuit affirmed. 

The Second Circuit found that the evidence supported an award of this size for several reasons. 

First, the Second Circuit explained that plaintiff’s “testimony alone arguably might not support 

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his claim of emotional distress,” but that was not the case here because other witnesses 

(including his mother) corroborated that plaintiff felt increasing frustration, loneliness, and other 

emotional anguish. Id. at 672. Second, the plaintiff suffered tangible adverse educational 

consequences by accepting an individual education plan diploma as a result of this conduct, 

which meant he could attend community colleges but would not be accepted by most trade 

schools, colleges, employers, or the military. Id. at 663. “As a consequence, the jury reasonably 

could have found that his ability to attend college or enter the workforce was significantly and 

adversely impaired.” Id. at 672. Third, the Second Circuit explained that his was not a “garden 

variety” employment discrimination case: “[Plaintiff] was not an adult losing sleep due to 

workplace stress. Rather, he was a teenager being subjected—at a vulnerable point in his life—

to three-and-a-half years of racist, demeaning, threatening, and violent conduct.” Id. Fourth, the 

Second Circuit explained, “A review of cases in the educational context indicate that verdicts 

range from the low six figures, to the mid-six figures, to as much as $1 million.” Id. at 673. 

Every one of these reasons cuts against the size of Plaintiff’s award here: his mental distress 

testimony was almost entirely uncorroborated;15 he did not suffer any lingering professional 

consequences by leaving his minimum wage job with Rosebud;16 his claim is, in part, that he was 

an adult losing sleep due to workplace stress; and this case did not arise in the educational 

context. If that were not enough, the district court in Zeno still remitted the jury’s original $1.25 

million award by 20 percent. In short, Zeno amply supports the propriety of remittitur here. 

 

15 Plaintiff attaches various affidavits from other employees to his motion [321-8; 321-9; 323] and even 

one from himself [321-10], but those affidavits were not in evidence at trial and were not considered by 

the jury. Even so, those affidavits perfunctorily assert that Plaintiff was upset, frustrated, or angry, and 

offer little detail that gives weight to Plaintiff’s identical assertions. 

16 Plaintiff points out that he went on welfare after leaving Rosebud [321, at 21]. That fact could not have 

informed the jury’s award here because the parties stipulated that Defendants would not reference during 

the trial any public assistance that Plaintiff received [203, at 8]. 

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Nevertheless, the Court respects the jury’s Section 1981 liability finding and its implicit 

decision to credit Plaintiff’s testimony that he suffered extensive racial harassment at Rosebud. 

The examples of blatantly intolerable invective that Plaintiff described at trial could reasonably 

cause a person to experience emotional distress, and Plaintiff’s testimony that these degrading 

insults were persistent only reinforces that conclusion. Yet courts have still remitted emotional 

distress awards of this size. See Deloughery v. City of Chi., 422 F.3d 611, 615 (7th Cir. 2005) 

(remitting $250,000 in compensatory damages for mental and emotional suffering to $175,000 

where a “highly motivated female police officer, with a family heritage in law enforcement” was 

terminated in retaliation for filing a sex and national origin EEOC charge and the jury found that 

she suffered “significant trauma”); Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 714 

(7th Cir. 2004) (finding that the “jury could have reasonably concluded that awards in the range 

of $50,000 to $150,000 were necessary to compensate” plaintiffs in a race discrimination case 

when the evidence showed that plaintiffs suffered from “continuing mental and physical ailments 

arising from * * * problems at work, including depression,” high blood pressure, memory loss, 

and “severe” impact on his motivation); Tullis, 243 F.3d at 1068 (upholding $80,000 

compensatory damages award for emotional distress where plaintiff felt “degraded” and 

“backstabbed,” he was without work for around ten months, his personal life was affected, he 

had to borrow money from friends, and he had his lights and phone shut off). While these 

amounts are not dispositive, the Court finds them somewhat instructive here.17

 

17 Plaintiff contends that the $250,000 damages award was, in fact, too low and he “did not request additur 

because the jury’s verdict must be respected.” [321, at 23.] “Under federal law, a court generally may 

not increase a jury’s determination of damages by additur.” Hibma v. Odegaard, 769 F.2d 1147, 1154 

(7th Cir. 1985); accord Dimick v. Schiedt, 293 U.S. 474, 485–87 (1935). 

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One additional point weighs in favor of the remittitur. Plaintiff’s closing argument 

discussed compensatory and punitive damages separately, and in the portion of his argument 

regarding compensatory damages, Plaintiff urged the jury to do the following: 

In deciding the amount for compensatory damages, you might wish to send a 

strong message, not a weak message, but a strong message. A message that 

people won’t laugh at. You want to send a message so that when others read of 

your decision -- and they will -- they will have respect for what you decided to do. 

[Tr. Dec. 14, 2015, at 1396–97.] These statements were improper (although, once again, 

Defendants failed to object). “[C]ompensatory damages are limited to actual losses” and the 

“argument that the jury should ‘send a message’ is a punitive damages argument.” Bruce v. City 

of Chi., 2011 WL 3471074, at *6 (N.D. Ill. July 29, 2011). In light of the size of the jury’s 

compensatory damages award, the risks of double recovery, and the lack of specific, articulable 

injuries that Plaintiff can identify, the Court believes that Plaintiff’s prejudicial, inappropriate 

arguments likely influenced the jury to increase its compensatory damages award improperly. 

Weighing all of these factors and the evidence and argument that the jury heard, the 

Court concludes that a rational connection between the $500,000 award and the evidence in this 

case is lacking, and therefore grants the Defendants’ motion to the extent it seeks a remittitur of 

the compensatory damage awards of the Section 1981 racial harassment and retaliation claims. 

The Court will grant Defendants’ motion for a new trial on damages unless Plaintiff accepts, 

within 14 days of this order, a reduction of the compensatory damage award to $80,000 for his 

Section 1981 racial harassment claim and $60,000 for his Section 1981 retaliation claim—an 

amount the Court concludes is within the range of reasonableness given the facts of this case. 

McKinnon v. City of Berwyn, 750 F.2d 1383, 1392 (7th Cir. 1984). 

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F. Whether Plaintiff’s Punitive Damages Awards Are Excessive 

“[P]unitive damages should be awarded only if the defendant’s culpability is so 

reprehensible to warrant the imposition of further sanctions to achieve punishment or 

deterrence.” Waits v. City of Chi., 2003 WL 21310277, at *4 (N.D. Ill. June 6, 2003). Courts 

focus on three factors to determine whether a punitive damage award is excessive: (1) the degree 

of reprehensibility of Defendants’ misconduct; (2) the disparity between the actual or potential 

harm suffered by Plaintiff and the punitive damages award; and (3) the difference between 

punitive damages awarded by the jury and the parallel remedies available. BMW of North 

America, Inc. v. Gore, 517 U.S. 559, 574–75 (1996). 

Because of Title VII’s statutory caps and the way the Court has allocated the jury’s 

award, no punitive damages have been awarded under Plaintiff’s sexual harassment (Claim 1) 

and Title VII retaliation (Claim 3) claims. It is “well settled that a plaintiff who establishes a 

cause of action under § 1981 may recover punitive damages under proper circumstances.” 

Yarbrough, 789 F.2d at 514. And the sole issue is whether the jury’s decision to award $500,000 

on the Section 1981 racial harassment claim (Claim 2) and $500,000 on the Section 1981 

retaliation claim (Claim 3) were excessive.18 The Court agrees with Defendants that this $1 

million award should be remitted too. 

“Evaluating reprehensibility involves inquiry into whether the injury was physical, 

whether it evinced a reckless disregard for the health of the target, whether the target had a 

 

18 Although the Court previously ruled on Defendants’ Rule 50 motions, Defendants belatedly attempt to 

raise new Rule 50 issue: Defendants lacked the requisite mental state under Kolstad v. American Dental 

Association, 527 U.S. 526 (1999), to sustain a punitive damages award. [316, at 24 (acknowledging “this 

point more appropriately would be included in a post-verdict Rule 50(b) motion”).] This attempt to 

present another Rule 50 argument comes too late. Regardless, Defendants fail to show (in fact, they cite 

nothing beyond Kolstad) that Plaintiff’s complaints, and Defendants’ responses, were insufficient as a 

matter of law to warrant this finding by the jury. [Cf. Tr. Dec. 9, 2015, at 686–694; Tr. Dec. 11, 2015, at 

1059–62, 1066–69.] 

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financial vulnerability, and whether the injury was clearly intentional.” Kunz v. DeFelice, 538 

F.3d 667, 679 (7th Cir. 2008) (citing State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 

408, 419 (2003)). Neither side discusses these considerations. Instead, Defendants argue that 

their conduct was not reprehensible because (1) Plaintiff’s testimony was “highly suspect”; (2) 

Rosebud did not terminate Plaintiff after he was convicted of a felony in 2006; (3) there was a 

“paucity of evidence beyond [Plaintiff’s] testimony that he ever complained about racial 

harassment before” he filed suit; and (4) Defendants responded promptly to Plaintiff’s written 

EEOC charge. [316, at 25.] Again, the jury chose to credit Plaintiff’s testimony, which included 

that he had repeatedly complained to Rosebud management for years before he filed his charge 

and they did nothing. Ignoring that evidence is unpersuasive. 

Racism is reprehensible by definition. “[T]here can be no excuse for intentional, 

repeated ethnic harassment, so the reprehensibility here is worse than conduct that might have 

some legitimate purpose.” Bains LLC v. Arco Prod. Co., Div. of Atl. Richfield Co., 405 F.3d 

764, 775 (9th Cir. 2005). However, none of the State Farm factors elevate the degree of 

reprehensibility beyond that present in many racial harassment cases. Specifically, Plaintiff 

argued in closing that Rosebud acted with “reckless disregard” [Tr. Dec. 14, 2015, at 1297], not 

intentionally (let alone “clearly” intentionally). Plaintiff’s injuries from Defendants’ racial 

harassment and retaliation were emotional, not physical. It is not clear that Plaintiff ever 

discussed his increased ibuprofen use with anyone at work, and there was no testimony that 

Defendants recklessly disregarded any health issues. This was not a financial crime, and while 

Rosebud paid Plaintiff (and all other employees) minimum wage, there was no testimony that 

Plaintiff was financially vulnerable or that Defendants preyed on that vulnerability. Thus, none 

of these factors take this case outside of the mine run of racial harassment and retaliation cases. 

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Defendants argue that these punitive damages awards are disproportionate, but their 

analysis is limited to comparisons with the Title VII $50,000 cap. [316, at 26.] Again, that cap 

does not apply to Plaintiff’s Section 1981 claims and so that cap is not the right benchmark for 

comparisons with Plaintiff’s compensatory damages award under Gore’s second factor. 

Moreover, this amount does not reflect Plaintiff’s $89,656.57 equitable award. [311, at 52.] 

Assuming Plaintiff accepts remittitur, he will receive $279,656.57 in compensatory damages for 

these three claims. That is a punitive-compensatory ratio of roughly 3.6 to 1. Defendants fail to 

cite any case law showing that a ratio of that size is unconstitutionally high. See State Farm, 538 

U.S. at 425 (noting that 4 to 1 ratio might be close to the line of constitutional impropriety); 

Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676 (7th Cir. 2003) (explaining that “[t]he 

Supreme Court did not, however, lay down a 4–to–1 or single-digit-ratio rule”). The Court is 

mindful, however, the jury awarded punitive damages that simply doubled the compensatory 

damages amount for each claim. [See 248.] “[P]unitive damages should be proportional to the 

wrongfulness of the defendant’s actions,” and here the jury implicitly found that a 2:1 ratio was 

proportionate. Mathias, 347 F.3d at 676.

Defendants fare better under the Gore’s third factor. Courts typically look to Title VII as 

providing analogous statutory remedies to Section 1981 claims. See Swinton v. Potomac Corp., 

270 F.3d 794, 820 (9th Cir. 2001) (collecting cases); Kauffman v. Maxim Healthcare Servs., Inc., 

509 F. Supp. 2d 210, 220 (E.D.N.Y. 2007) (collecting cases). The large discrepancy between 

Title VII’s $50,000 cap for compensatory and punitive damages and the jury’s $1 million 

punitive award weigh in favor of remittitur. Plaintiff received $0 in punitive damages for his 

Title VII retaliation claim based on application of the statutory caps. Plaintiff offers no argument 

that an award of $500,000 for an almost identical retaliation claim under Section 1981 is 

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proportionate. Although Title VII’s cap is not dispositive, it is a factor that cuts against the 

jury’s large award here. 

Considering all of these factors, the Court concludes that some punitive damages are 

appropriate here to achieve punishment and deterrence beyond the compensatory damages 

award. Based on the evidence the jury heard, the jury’s determination that punitive damages are 

appropriate, and the proportion reflected in its verdict, the Court reduces Plaintiff’s punitive 

damages award to $160,000 for his Section 1981 racial harassment claim and $120,000 for his 

Section 1981 retaliation claim. The Court will grant Defendants’ motion for a new trial on 

damages unless Plaintiff accepts remittitur to these amounts within 14 days of this order. 

McKinnon, 750 F.2d at 1392. 

G. Whether The IGVA Damages Awards Are Excessive 

Defendants challenge the compensatory and punitive damages awards against Defendants 

Mendoza and Castaneda under IGVA as excessive. [316, at 27–29.] “When [state] substantive 

law governs a claim for relief, [state] law and decisions guide the allowable damages.” 

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437 (1996). Regarding compensatory 

damages, “[t]he primary difference between the federal and state standards is that the former 

takes into account ‘whether the award is comparable to those in similar cases,’ whereas the latter 

does not.” Hammer v. Residential Credit Sols., Inc., 2015 WL 7776807, at *42 (N.D. Ill. Dec. 3, 

2015) (internal citations omitted). When it comes to punitive damages, “relevant circumstances 

to consider include, but are not limited to, the nature and enormity of the wrong, the financial 

status of the defendant, and the potential liability of the defendant.” Blount v. Stroud, 395 Ill. 

App. 3d 8, 22 (2009). “The amount of a punitive damages award will not be reversed unless it is 

so excessive that it must have been a result of passion, partiality, or corruption.” Id. Moreover, 

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unlike federal law, Illinois law does not require that “the amount of punitive damages imposed 

on a defendant bear any particular proportion to the size of the plaintiff’s compensatory 

recovery.” Id. at 23. However, federal constitutional standards are still implicated when it 

comes to punitive damages awards. Hammer, 2015 WL 7776807, at *45. 

As a recap, the jury awarded $2,500 in compensatory and $5,000 in punitive damages 

against Defendant Mendoza and $50,000 in compensatory and $100,000 in punitive damages 

against Defendant Castaneda on Plaintiff’s IGVA claim. The Court starts with Defendant 

Mendoza. 

Plaintiff testified that Defendant Mendoza “grabbed” his posterior and genitals 

“numerous” times from 2003 through 2007. [Tr. Dec. 9, 2015, at 519–22; 525–29; 539–45, 547–

55.] He also testified that Defendant Mendoza propositioned him to go to a hotel room and have 

sex in 2004 and over twenty times in 2007, and at least one incident involved Defendant 

“shov[ing]” Plaintiff into a gate in a walk-in cooler. Id. at 542, 551–53. Mendoza testified that 

he and Plaintiff gave each other a “butt slap” in 2004, but he had never grabbed Plaintiff’s 

genitals or posterior and had never propositioned him. [Tr. Dec. 11, 2015, at 1113–15, 1118.] 

Although much of Plaintiff’s testimony on direct-examination lacked detail and he contradicted 

his timeline on cross-examination [Tr. Dec. 10, 2015, at 856–57], the jury was entitled to sort out 

these inconsistencies and credit Plaintiff’s testimony over Defendant Mendoza’s, as the Court 

has already ruled [311, at 19]. Defendants cannot simply ignore this testimony when arguing 

that the award against Defendant Mendoza is unsupported by the evidence. 

Nevertheless, Defendants argue that the size of this award “appears to be the product of 

passion and prejudice and bears no relation to [Plaintiff’s] alleged loss.” [316, at 28.] That is an 

accurate assessment. First, liability could not have been imposed for any gender-related violence 

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that occurred prior to December 23, 2004. [246, at 31.] Some of the evidence that Plaintiff 

highlights relates to events before this date, and cannot be used to justify the jury’s award. [See 

321, at 29.] Second, Plaintiff’s attorney violated the Court’s motion in limine rulings by asking 

Mendoza point blank if he used drugs at work. [223, at 15; Tr. Dec. 14, 2015, at 1236.] Third, 

Plaintiff’s attorney repeatedly came right up to the boundaries of referencing Mendoza’s 

immigration status, which also violated the Court’s in limine ruling and the Court’s express 

admonition not to ask Mendoza how long he had lived in this country. [223, at 12; Tr. Dec. 11, 

2015, at 1125–27, 1137, 1146.] Fourth, Plaintiff argues that “[a]side from Mendoza and 

Castaneda touching and grabbing [his] private parts, the jury found them liable for ignoring [his] 

repeated complaints and failing to stop the open, public sexual, racial harassment and 

retaliation.” [321, at 30.] The Court granted summary judgment on Plaintiff’s Section 1981 

claims against Defendants Mendoza and Castaneda [165, at 25], and the fact even Plaintiff

believes that he can only justify this award by arguing that the amount reflects these Defendants’ 

liability for conduct not prohibited by IGVA (such as Mendoza’s alleged failure to stop racial 

harassment at Rosebud) shows that this award does not bear a rational relationship to the 

evidence. Based on these issues, the factors discussed above, the fact that Mendoza earned close 

to minimum wage at the time of trial [Tr. Dec. 11, 2015, at 1107–08], the lack of injury beyond 

emotional distress tied to this claim, and the evidence presented at trial in support of this liability 

finding, the Court remits the jury’s damages award against Defendant Mendoza to $1,000 in 

compensatory damages and $2,000 in punitive damages. 

Regarding Defendant Castaneda, Plaintiff testified that Castaneda sexually harassed him 

twice in December 2003 [Tr. Dec. 9, 2015 at 511–14], again between February and March 2004 

(id. at 514–15) and then once more in 2005 or 2006 (id. at 515). The jury could not award IGVA 

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damages for any of these incidents except the last one. [246, at 31; 311 at 17–19.] Even 

crediting this last incident happened [see Tr. Dec. 10, 2015, at 854 (Plaintiff testified that 

Defendant Castaneda did not touch him again after December 2003)], the sexual violence that 

Plaintiff described in this incident consisted of Defendant Castaneda “grabb[ing] my ass again.” 

[Tr. Dec. 9, 2015, at 515.] Plaintiff fails to persuade the Court that a $150,000 damages award is 

proportionate to this degree of misconduct or how Defendant Castaneda’s conduct was at least 

twenty times worse than Defendant Mendoza’s conduct. 

Indeed, Plaintiff makes almost no effort to do so. Plaintiff emphasizes that Defendant 

Castaneda would make racist remarks [321, at 30], but that is not a basis for awarding damages 

under IGVA. And, as noted, even Plaintiff believes the jury held Castaneda responsible for 

“failing to stop the open, public sexual, racial harassment, and retaliation” through the IGVA 

claim. [321, at 30.] Based on the size of the verdict, the Court agrees with Plaintiff that the jury 

used the IGVA claim to penalize Castaneda for misconduct that it was legally prohibited from 

punishing. Plaintiff’s sweeping contention that Defendant Castaneda “aided and abetted all male 

employees to touch and grab [Plaintiff’s] private parts” (id.) is totally unsupported by the 

evidence, which is likely why he cites nothing to support that contention. Taken together, 

remittitur is necessary. Applying the relevant factors and considering the evidence at trial and 

the fact that Castaneda was Plaintiff’s General Manager, the Court remits the jury’s damages 

award against Defendant Castaneda to $1,500 in compensatory damages and $3,000 in punitive 

damages. As with the other remitted damages awards, the Court will grant Defendants’ motion 

for a new trial on damages unless Plaintiff accepts this remittitur within 14 days of this order. 

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V. Conclusion 

For the foregoing reasons, Defendants’ motions to amend the Court’s findings of fact and 

conclusions of law pursuant to Rule 52(b) [315] is denied. Defendants’ motion for a new trial or 

reduction of damages through remittitur [316] is granted in part and denied in part. For Claim 1, 

the Court reduces Plaintiff’s compensatory damages to $50,000 and vacates any punitive 

damages award pursuant to 42 U.S.C. § 1981a(b)(3). For Claim 2, the Court remits Plaintiff’s 

compensatory damages to $80,000 and his punitive damages award to $160,000. For Claim 3, 

the Court remits Plaintiff’s compensatory damages to $60,000 and his punitive damages award to 

$120,000. For Claim 4, the Court remits the jury’s damages award against Defendant Mendoza 

to $1,000 in compensatory damages and $2,000 in punitive damages, and the award against 

Defendant Castaneda to $1,500 in compensatory damages and $3,000 in punitive damages. If 

Plaintiff does not accept remittitur within 14 days of this order, the Court will grant Defendants’ 

motion for a new trial on damages only. 

Dated: July 14, 2017 __________________________________ 

 Robert M. Dow, Jr. 

 United States District Judge 

Case: 1:11-cv-09147 Document #: 337 Filed: 07/14/17 Page 57 of 57 PageID #:6305