In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2236

LAMARCE TART and DAVID CURTIS,

Plaintiffs-Appellants,

v.

ILLINOIS POWER COMPANY and

RAULY LAW,

Defendants-Appellees.

____________

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 98 C 715—Clifford J. Proud, Magistrate Judge.

____________

ARGUED DECEMBER 9, 2003—DECIDED APRIL 26, 2004

____________

Before FLAUM, Chief Judge, and BAUER and ROVNER,

Circuit Judges.

ROVNER, Circuit Judge. Lamarce Tart and David Curtis

prevailed before a jury on their claims of race-based

employment discrimination and retaliation. The district

court subsequently granted the defendants’ Rule 50 motion

for judgment as a matter of law, vacating the jury’s verdict.

Once a jury has spoken, we are obliged to construe the facts

in favor of the parties who prevailed under the verdict.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
2 No. 03-2236

1 The parties consented to allow a magistrate to conduct all

proceedings including the trial of the case pursuant to 28 U.S.C.

§ 636(c). See R. 60. The case was referred to Magistrate Judge

Clifford J. Proud. See R. 61. We will refer to the court below as the

district court for ease of understanding.

150-51 (2000). Because the district court1 construed several

key facts in favor of the losing parties, and because a

reasonable jury could (and indeed did) find that the defendants took adverse employment actions against the plaintiffs because of their race and retaliated against them for

engaging in protected activity, we reverse and remand with

directions to reinstate the jury’s verdict in favor of the

plaintiffs.

I.

We begin with a view of the facts that favors the winning

plaintiffs as we are required to do under existing law. David

Curtis, who is African-American, began working at the East

St. Louis plant of Illinois Power in 1979. Tr. Vol. II, at 10.

He received positive performance reviews throughout his

career there and was selected to train other employees

because of his skills. Tr. Vol. II, at 18-20; Tr. Vol. III, at

190-91; Pl. Ex. 18. For many years, he worked in a one-man

truck responding to customer service calls. Tr. Vol. II, at 11-

12. In 1988 or 1989, he also began working in the meter

shop, an indoor position that involved maintaining and

testing gas meters and other equipment used to measure

gas and detect and repair gas leaks. Tr. Vol. II, at 13-15. He

continued to respond to customer calls in a one-man truck

and he performed maintenance services around the building

itself, completing wiring, plumbing, air-conditioning and

heating repairs. Tr. Vol. II, at 15-16. His position changed

titles over the years but he remained essentially what is

now known as a gas journeyman. After the events that took
No. 03-2236 3

place in this case, he obtained the additional status of “lead

man,” which makes him eligible to be in charge on a twoman truck. Tr. Vol. II, at 10-11.

Lamarce Tart is also African-American. He too is a gas

journeyman. He began working for Illinois Power in East

St. Louis in 1981. Tr. Vol. II, at 196. He, like Curtis, received positive performance reviews over the years. Pl. Ex.

17. Prior to these events, he worked in a one-man truck

responding to customer service calls and greatly enjoyed his

work. Tr. Vol. II, at 197-98. In the one-man truck he had

contact with customers, was his own boss, made his own

decisions and was not subordinate to a lead man (as was

the case with two-man trucks). Tr. Vol. II., at 198. Like

Curtis, he engaged in skilled work locating and repairing

gas leaks both inside and outside of customers’ homes.

Both men worked at Illinois Power without incident until

1996 when Rauly Law, one of the defendants in this case,

became the new plant manager. Law is Caucasian. At that

time, although the plant workforce was half AfricanAmerican and half Caucasian, all of the supervisors and

managers were Caucasian. Tr. Vol. II, at 24. In 1996, after

Law came on board, a Caucasian employee named Reginald

Briggs began harassing Curtis, threatening him, swearing

at him and roughhousing. Briggs called Curtis a thief,

accused him of stealing time from the company, and

accused him of harming the employees’ position with the

union. Tr. Vol. II, at 24-28. Curtis approached Law and

asked him to intervene but Law did not respond to this

request. Tr. Vol. II, at 28. Instead, Law told Curtis he was

going to keep a close eye on him, that he would be watching

Curtis and his work performance, and he began to call into

question the validity of Curtis’s time sheets. Tr. Vol. II, at

29-30.

Law also turned away from a verbal altercation in which

Briggs yelled at Curtis for taking a company truck home, an
4 No. 03-2236

action Briggs claimed was unethical. Tr. Vol. II, at 32-33.

Briggs, of course, was Curtis’s co-worker, not his supervisor,

and Curtis explained that the company allowed employees

to take trucks home when they were serving as “first

responders.” Tr. Vol. II, at 33-34. Law came out of his office

to observe the commotion, saw it escalating and returned to

his office. Id. In the course of this diatribe, Briggs accused

Curtis of having previously taken a truck home in an

incident that occurred some twelve years earlier. Curtis

remarked that he was vindicated in the earlier incident,

which occurred in conjunction with a plant where AfricanAmerican employees were not allowed to have a key to the

facility and were not allowed to respond to customer calls in

that particular geographic area, a situation which existed

until Curtis complained. Briggs accused Curtis of trying to

turn the conversation into a racial issue. Curtis replied that

it was a racial issue. Tr. Vol. II, at 33-34.

Briggs also harassed Lamarce Tart. As described by

Curtis, one incident included Briggs “yelling and screaming

at Mr. Tart and giving him his middle finger and giving him

a general cuffing” all in the presence of Law. Tr. Vol. II, at

36-37, 199-200. When Tart asked Law to intervene and

force Briggs to apologize, Law declined. Tr. Vol. II, at 200-

01. After witnessing this exchange and having suffered at

Briggs’s hands himself, Curtis decided to call the company’s

human resources division in Decatur, Illinois. He spoke to

Ken Justice, an Illinois Power human resources consultant,

and told him that he and Tart were being treated “with a

biasness [sic] by Mr. Law, and we had been attacked and

harassed by a white individual and his actions were being

substantiated by Mr. Law.” Tr. Vol II, at 36-37; Tr. Vol. II.

at 156 (“I told him that it was biased, and that’s the term I

used. He understood what I was saying. He knew I was

talking about race.”). He explained that by “substantiated”

he meant that Law had “done absolutely nothing to curtail”

Briggs’s actions. Tr. Vol. II, at 37. Justice promised to look

into the situation.
No. 03-2236 5

Shortly thereafter, Law called the plant together to “flush

the birdie” because “somebody done called EEOC.” Tr. Vol.

II, at 40. Law was irate that “somebody called the EEOC or

the employee services,” that someone “blew the whistle” and

he did not want employee services coming to investigate. Tr.

Vol. II, at 40. Curtis admitted it was he who had made the

call to Human Resources. He was confused by Law’s

reference to the EEOC and told him he did not know he had

called the EEOC but thought he was talking to the company’s employee services. Law responded, “That’s them,

then you did do it.” Tr. Vol II, at 41. 

Law next called a weekend meeting of Curtis, Tart,

Briggs and a union representative, David DeGonia. At this

meeting, Law told Curtis that to prevent employee services

from coming down, Curtis would have to say he made a

mistake in calling them or that he did not need their services. Tr. Vol. II, at 42. Law told Curtis that Justice was

coming down to East St. Louis on Monday unless they could

get the issue resolved without him. Tr. Vol. II, at 43. He

told Curtis that “if they do come down, someone is going to

be without a job.” Tr. Vol. II, at 42, 202-03. Because he was

looking directly at Curtis when he threatened the job loss,

Curtis assumed Law meant that Curtis would be fired.

From this point on, Curtis feared for his job. Tart too

understood his job to be on the line. Tr. Vol. II, at 203. That

weekend, Curtis called Law to apologize for calling Human

Resources, explaining he did not know it was going to be

“such a big deal.” Tr. Vol. II, at 43. Law told him that

“somebody was going to have to be fired if that guy has to

come down. . . . And, David, you’re the only guy that we’re

having a problem with.” Tr. Vol. II, at 43. 

On Monday morning, Law called another meeting of

Curtis, Tart, Briggs and the union steward. At the meeting,

Law asked Curtis if the issue was resolved. Curtis replied

it was not. Law then asked if Curtis had a problem working

with Briggs; Curtis said he did not. Law asked Briggs if he
6 No. 03-2236

had a problem working with Curtis and he replied he did

not. Law declared the matter resolved. Tr. Vol. II, at 44.

Human Resources did not come down to East St. Louis to

investigate at that time. Thereafter, Briggs continued to

harass Curtis, and Law continued to scrutinize Curtis’s

work. Curtis tolerated the situation until the Loisel Drive

incident.

On appeal, the defendants characterize the Loisel Drive

job as “mishandled” but a reading of the record that favors

the prevailing plaintiffs reveals that many factors beyond

the plaintiffs’ control contributed to the length of time they

were at the site. Although the plaintiffs were working on

one-man trucks and, in Curtis’s case, in the meter shop at

that time, the union had negotiated a requirement that

after regular working hours in certain geographical areas,

a minimum of two workers were required to respond to

customer calls for safety reasons. This is how Curtis and

Tart came to respond together to the report of a gas leak at

Loisel Drive in October 1997.

The call came in on a weekend afternoon, and Curtis and

Tart reported to the plant within an hour as required.

There they picked up a truck and proceeded to the site,

where another Illinois Power employee waited for them. He

told them the leak was “first class,” the most dangerous

type of gas leak situation. Tr. Vol. II, at 45. The leak was at

the homeowner’s foundation wall, which created a risk that

gas could infiltrate the foundation and cause a fire or

explosion. The homeowner was a wheelchair-bound paraplegic. Curtis and Tart realized that they did not have

adequate equipment on their truck to handle a leak of this

type. They made a temporary fix that rendered the situation safe enough to leave to get additional equipment, and

then made the 40 minute round trip to the plant to get a

better equipped truck. The trip back to the plant was

lengthened by the fact that it was a weekend, the plant was

empty and some of the equipment they needed was locked
No. 03-2236 7

in a storehouse. Once they returned to the home, the

company dispatcher called a joint utility locating company

to come out and mark the location of underground utility

lines before they started digging. Tr. Vol. II, at 50-52.

Although the locating service is usually able to pinpoint

electrical and gas lines, it is not able to detect buried sewer

lines. Because the service cannot predict the location of

sewer lines, hitting and breaking sewer lines when digging

is a known risk of the job in gas line repair. Tr. Vol. II, at

52-53, 194, 205. Even the defendants conceded this. Tr. Vol.

III, at 70-71. Breaking a sewer line while digging is a

common occurrence and no one had ever been disciplined or

reprimanded for hitting a sewer line. Tr. Vol. II, at 59.

The locator service technician arrived a little more than

an hour after Illinois Power dispatch called for help. The

technician was new to the job and was having difficulty

using the computerized mapping system to find the service

lines. Tr. Vol. II, at 54. Indeed, he was unable to locate even

the gas line much less the electrical and other service lines.

After realizing that their guess was as good as the technician’s, Curtis and Tart were ready to dig. By this time,

though, it was getting dark. They again returned to the

plant, another 40 minute round trip, to pick up lighting

equipment. As luck would have it, the sewer line was

located very close to the gas line that required replacement.

While digging for the gas line, Curtis and Tart struck and

broke the sewer line. This too lengthened the job because

the trench in which they had to work was now filled with

leaking sewage. Nonetheless, they succeeded in replacing

the gas service line in approximately seven hours, plus the

time needed for trips back to the plant for equipment. Tr.

Vol. II, at 59.

Because the homeowner was a paraplegic and they did

not want to leave her without a working sewage system,

they decided to fix the broken sewer line, a common practice

for gas journeymen. Tr. Vol. II, at 61. They once again
8 No. 03-2236

traveled back to the plant to obtain materials to fix the

sewer line, returned to the home and completed the repairs.

When attempting to refill the hole they had dug to expose

the gas line, the hydraulic line of their digging equipment

burst and sprayed hydraulic fluid all over them. Tr. Vol. II,

at 60. Because of this equipment malfunction, they were

unable to completely refill the trench, and left that work for

another crew the next day. Tr. Vol. II, at 61. All in all, they

worked for approximately eighteen hours to complete the

job, taking breaks as they were entitled to do under union

rules. Tr. Vol. II, at 60-61.

On Monday, they returned to work and Law called them

in to question them about the job. Law was making good on

his threat to scrutinize their work, and he asked for an

accounting of all the hours they spent on the job. They described the work to him, including the darkness, the equipment problems, the sewer line breakage and other unfavorable conditions. Tr. Vol. II, at 62-63. Law acknowledged the

difficulties and told them he had no problem with the job.

Tr. Vol. II, at 209.

A few days later, Law called them in again, and this time

he was displeased with their work on the Loisel Drive job.

He told them they were at the site for an unreasonably long

time, that he was suspending them for one day and taking

away their overtime pay. Tr. Vol. II, at 209-10. He removed

Curtis from the meter shop and took away his mobile data

terminal, a laptop computer Curtis used in his work. Tr.

Vol. II, at 63-65. He also took back from Curtis keys to the

meter shop and company credit cards that Curtis had been

using to procure materials for maintenance of the building

and to purchase small tools associated with the job. Tr. Vol.

III, at 76-77. Law assigned Curtis to a two-man truck for

“training” under Frank Verdu, a less experienced employee

whom Curtis himself had trained. Tr. Vol. II, at 63-65. This

two-man truck was not assigned to customer service calls.

As Curtis explained, his job suddenly changed drastically:
No. 03-2236 9

Frank Verdu had been an individual of lesser years

than I, and he was still out in what’s called ditch work

or construction work. I was in an office, and I had a

computer on my desk, and I was in charge of a data

base of meter inventorying, sensitive gas leaks, search

equipment that I was responsible for repairing and

maintenance of. I often went in and helped the girls in

the office with their computer situation. All of a sudden

I was just not the person to be doing that anymore.

Tr. Vol. II, at 66. Curtis suddenly found himself outdoors in

the winter digging ditches under the command of a man he

had previously trained. 

Verdu was just as puzzled by the new assignment as

Curtis. When Law assigned Curtis to him, Law said, “nobody else would take him, so you’re getting him.” Tr. Vol. II,

at 182. Verdu had been trained by Curtis and protested that

he could not train the man who had trained him because

Curtis already knew everything Verdu knew. Tr. Vol. II, at

182, 185-86. In fact, no one ever told him he was supposed

to train Curtis. Tr. Vol. II, at 183. No one told him why

Curtis was assigned to him or ever asked him how Curtis

was progressing in his supposed training. Tr. Vol. II, at 185.

See also Tr. Vol. II, at 182 (where Verdu testified, “No, it

wasn’t anything about training him, because I couldn’t train

him.”). Indeed, the only thing Law said to him about Curtis

was a cryptic statement Verdu understood to mean that

Law wanted Verdu to work Curtis until he quit. Tr. Vol. II,

at 187. Two other employees, Reginald Briggs and Ron

Kelly, also told Verdu that he was supposed to work Curtis

until he quit. Tr. Vol. II, at 189.

At the end of the reassignment meeting, Tart and Law

exchanged words and Tart left the office, unintentionally

shutting the door hard behind him. Tr. Vol. II, at 67-68.

Law jumped up from his chair and pursued Tart with such

speed that Curtis feared he was going to “head butt” Tart.
10 No. 03-2236

2 Edwards was eventually promoted to the position of manager of

diversity, affirmative action and EEOC. Tr. Vol. III, at 27. She

later left the company. 

Tart turned to apologize for shutting the door firmly and

Law yelled at him in a threatening fashion. Curtis feared

Law was going to assault Tart. Tart himself asked Law if he

was going to hit him. Law responded, “If I was going to hit

you, I would have done hit you.” Tr. Vol. II, at 69-70, 211.

Curtis and Tart grieved the discipline and as a result

their overtime pay was reinstated but the union declined to

address the reassignment to ditch-digging duties. Tr. Vol.

II, at 70. Curtis and Tart called Human Resources in

Decatur to complain about the discipline. Curtis spoke to

Ken Justice again and also to Linda Edwards, telling them

there were racial problems in the East St. Louis plant.

Tr. Vol. II, at 177 (“I told him the work force was dividing

along racial lines[.]”). Edwards was also a Human

Resources consultant, a management level position at

Illinois Power. Tr. Vol. III, at 27.2

 Justice and Edwards

were surprised to learn that there was an ongoing issue

that stemmed from the earlier call, and felt they had been

deceived. Tr. Vol. II, at 71-72. Curtis told Edwards that

“there was a racial problem that had developed there, and

that the issues that stemmed from 1996 had not been resolved, and in fact that the reason they didn’t get the

evidence, what was taking place there, is because I had

been threatened to lose my job if I didn’t say it was resolved.” Tr. Vol. II, at 74. He told Edwards that he had been

removed from his primary, routine duties and that the

actions had gone beyond discipline and had become vindictive and a punishment. Tr. Vol. II, at 74, 79. Tart told

Edwards that he had been subjected to discrimination and

retaliation since November 1996, that the things that were

happening to him were not happening to white employees.

Indeed, the Caucasian supervisor and dispatcher involved
No. 03-2236 11

in the Loisel Drive job were not disciplined or trained in

any manner following the incident. Tr. Vol. II, at 215-16.

Edwards assured Curtis that he had done nothing wrong

in calling Human Resources the previous year. She also

agreed that the reassignment was punishment, and that no

other employee had been trained or disciplined in this

manner. Tr. Vol. II, at 79-80. Verdu later agreed that no

employee had ever been disciplined for taking longer to

complete a job than they should have. Tr. Vol. II, at 188.

David DeGonia, the union representative, had never heard

of anyone who was not an apprentice being sent out for

training for five or seven months. Tr. Vol. III, at 172.

Edwards conducted an investigation that began with interviewing the four people most immediately involved: Curtis,

Tart, Law and Briggs. Eventually the investigation expanded to include eighteen other employees who came

forward on their own to talk to her. Tr. Vol. III, at 31.

Edwards drafted a twenty-page memorandum detailing the

investigative interviews and listing her findings and recommendations. Pl. Ex. 7. This report was presented to the

jury in redacted form as Exhibit 7A. In redacted form, the

report contained interview summaries from Curtis, Tart,

Law and Briggs. It also set forth Edwards’ twenty-three

findings and sixteen recommendations. 

Among the findings presented was a conclusion that

although the initial response to the overtime on the Loisel

Drive job was not racially motivated, the aftermath was. Tr.

Vol. III, at 32; Ex. 7A. In particular, Edwards found that

the punishment received and the atmosphere created

around the punishment had racial overtones. Tr. Vol. III, at

32. She found that Law treated Briggs, a white employee,

favorably as compared to Curtis and Tart. For example, she

had recommended that Law issue a written reprimand to

Briggs for his behavior. Law promised he would and then

did not do so. Tr. Vol. III, at 32-34, 43-44. Law later created

a memo to document a reprimand that supposedly took
12 No. 03-2236

place the previous month, and then lied to Edwards about

reprimanding Briggs. Tr. Vol. III, at 44. Edwards determined that although Briggs lacked the skills Tart and

Curtis were accused of lacking and was also deficient in

other areas, he was never subjected to training. Ex. 7A. For

example, Briggs could not weld, was a poor equipment

operator, and could not operate the computers well. Ex. 7A.

Edwards found that the threats to Curtis’s and Tart’s jobs

following their calls to Human Resources were retaliation

for coming forward with their concerns, and that the threats

were designed to put fear in all the employees. Tr. Vol. III,

at 32-34; Ex. 7A. She also concluded that the assignment to

training was a pretext for discipline. Ex. 7A. In discussing

the racial overtones, Edwards noted that on one occasion,

Tart called her to say he was going to invite a number of

African-American community leaders to march on the

property. Edwards called Law to inform him that if anyone

came onto the property, he was not to speak to that person

but rather to ask the individual to leave and then to call

headquarters. Law became very agitated and said, “I’m

trying to do my job, I’m trying to do the best job I can. . . .

If those nig. . .” Edwards interrupted him, “Rick, you don’t

want to do that. You don’t want to say that.” Tr. Vol. III, at

34-35. She testified, “I stopped him from fully using the

word nigger.” Tr. Vol. III, at 35. 

Once Edwards completed her investigation, she met with

Curtis and Tart to discuss the results of her inquiry. She

told them that she had concluded discrimination had taken

place as well as retaliation. She told them it was wrong that

their jobs were threatened for calling Human Resources and

that the company would not ignore the threat. She had also

concluded that because the reassignments had gone on for

so long, for a number of months beyond which anyone else

had ever been subjected to that kind of training, that the socalled training resembled punishment. She told Curtis and

Tart she was recommending that they be returned to their
No. 03-2236 13

3 MDT stands for “mobile data terminal,” the computer the

plaintiffs used in their work before the reassignments.

old duties. Tr. Vol. II, at 84, 218; Tr. Vol. III, at 33, 40; Ex.

7A. She told them Law would be required to attend training

on how to deal with diverse groups of people. Tr. Vol. II, at

86. 

Edwards’ recommendations were given to Law in November 1997. Ex. 11. They were not discretionary but rather the

employees involved were required to comply with them. Tr.

Vol. III, at 38. Number five on the list read, in part, “David

Curtis and Lamarce Tart to be moved back to their trucks,

this job will give access to operate the MDT. . . . [T]his will

remedy the substantiated unlawful retaliation by Rick

Law.” Ex. 11.3

 Edwards required that Curtis and Tart be

returned to their prior duties because Law was unable to

provide a valid business reason for having moved them in

the first place. Tr. Vol. III, at 49. He claimed that he moved

Tart and Curtis because they were slow workers (a claim

not borne out by their performance reviews) but was unable

to explain why he did not take similar action with Briggs,

a white employee known as a slow worker. Tr. Vol. III, at

49-50. Law sent Edwards a memo on December 11, 1997

detailing which recommendations he had completed and

which he had not. Curiously absent from his memo was the

disposition of recommendation number five. Ex. 11. When

Edwards became aware that recommendation number five

was not being implemented, she spoke separately to Law

and to Ron Pate, Law’s supervisor, making a note of her

conversations in order to protect herself. Tr. Vol. III, at 45-

46. Law openly refused to implement the recommendation

and Pate supported him in this decision. Tr. Vol. III, at 46.

Law failed to implement other recommendations as well.

Tr. Vol. III, at 47-48. Edwards found that racial tensions in

the diverse plant were controlled before Law came into
14 No. 03-2236

management, but the situation “exploded” once Law

arrived. After Law left, the plant settled down again. Tr.

Vol. III, at 53.

Shortly after his meeting with Edwards, Curtis attended

a plant-wide meeting called by Law. Law told the employees

the meeting was about diversity, threw up his hands and

said, “I broke the law. I was wrong.” Tr. Vol. II, at 86-87. He

told the employees they would have to address each other

more formally now and could not use nicknames anymore.

As an example, he said, “You can’t turn to your co-worker

and say ‘Hey buddy, give me a wrench.’ ” Tr. Vol. II, at 87.

The discussion then devolved into a “big joke” where the

employees laughed about this diversity training. Law told

them they had to use first names only, could not be “buddybuddy” anymore and that Curtis and Tart had “spoiled the

party.” Tr. Vol. II, at 87, 218.

Curtis was never returned to the meter shop. Tr. Vol. II,

at 88; Vol. III, at 51. Indeed, his “training” continued after

this point for a total of seven or eight months. During the

“training,” Curtis was never actually trained to do anything. No written or other training was provided, no progress reports were made, and Law never inquired into his

progress. Tr. Vol. II, at 88. As previously noted, although

Caucasian employees had taken similar amounts of time to

complete leak repair jobs under unfavorable conditions,

none had ever been punished. Tr. Vol. II, at 89; Tr. Vol. III,

at 181-82. Curtis’s job in the meter shop was given to a

Caucasian employee with less experience and less seniority.

That employee was also given Curtis’s one-man truck.

Curtis’s other responsibilities, such as performing wiring

and other repairs at the plant, were outsourced to outside

contractors because the new meter shop employee lacked

the skills to complete these tasks. Curtis also missed the

opportunity to train other apprentice employees because

Law failed to tell him he was on a list of potential trainers

whose assistance was requested by the Decatur plant. Tr.
No. 03-2236 15

Vol. II, at 90; Tr. Vol. III, at 86. Finally, the new meter shop

employee was supplied with $4000 worth of new tools in a

new tool chest, although Curtis, who had repeatedly

requested appropriate tools, had been forced to make do

with a small bag of old tools and tools that he brought from

home. Tr. Vol. II, at 91-92. 

After more than seven months of “training” under Frank

Verdu, Law told Curtis he was no longer working for Verdu

and he became a floater, taking any assignments that were

available each day. Tr. Vol. II, at 94. He remained a floater

until he was able to use his seniority to bid out to a construction crew in 1999. He bid to join the crew so that he

could get away from the harassment and ridicule he

received from co-workers in the East St. Louis plant. Tr.

Vol. II, at 95. 

Tart’s “training” lasted five wet, cold, miserable months.

Tr. Vol. II, at 213. In his twenty years of service at Illinois

Power, he had never known anyone to be subjected to this

sort of “training” for more than two weeks. Tr. Vol. II, at

213. No white employees who were involved in jobs taking

similar lengths of time had ever been punished or sent to

some indeterminate, undefined training. Tr. Vol. II, at 214.

No progress reports were made of his training and Law

never inquired of his progress. His one-man truck was given

to a white employee. Tr. Vol. II, at 213. Edwards’ recommendation that he be returned to the one-man truck was

not honored, Briggs continued to harass him with obscene

words and gestures, and “the whites were still separated

from the blacks.” Tr. Vol. II, at 219. Tart reported that

“[t]he white guys were shoving me, if I even walked by or

stand [sic] up, then they would get away from me.” Tr. Vol.

II, at 220. He was treated like an outcast. Tr. Vol. II, at 219.

At the end of five months, he was placed back on a one-man

truck assignment. Tr. Vol. II, at 246. 

At trial, Law denied that he had seen Edwards’ sixteen

recommendations before the litigation began. Tr. Vol. IV, at
16 No. 03-2236

113. He conceded this was not true when he was confronted

with a copy of his own memo with the sixteen recommendations stapled to it. Tr. Vol. IV, at 117-19, 121. Also at trial,

Law initially held to the story he told Edwards, that he

fulfilled recommendation number three, to place a reprimand in Briggs’s personnel file for harassment and intimidation in December 1997. Tr. Vol. IV, at 124. When confronted with his actual memo dated two months later in

January 1998, he was forced to concede that he had lied to

Edwards when he told her he had completed the recommendation. Tr. Vol. IV, at 126. Briggs later testified that Law

did not ever discipline him for his behavior towards Curtis.

Tr. Vol. IV, at 167. Rather, another manager delivered the

discipline. Tr. Vol. IV, at 167. Law conceded that an

“individual employment plan” he was required to develop

for himself each year identified the sixteen recommendations as a goal for completion that year. Tr. Vol. III, at 81.

He even conceded that although the reassignment of Tart

and Curtis began as a training exercise, at some point it

turned into a job assignment. Tr. Vol. IV, at 146.

II.

Curtis and Tart sued Illinois Power and Law for race

discrimination and retaliation in violation of 42 U.S.C.

§ 1981 and 42 U.S.C. § 2000e, et seq. After a jury verdict in

favor of the plaintiffs, the defendants moved for judgment

as a matter of law under Fed. R. Civ. P. 50. The trial court

granted the motion, concluding that no reasonable jury

could find that the defendants took adverse employment

actions against Curtis and Tart. The court also determined

that the reassignments could not serve as retaliation for

engaging in protected conduct because Curtis and Tart

reported race discrimination to Linda Edwards the day

after they were reassigned. Finally, the district court

credited the defendants’ version of the context in which the
No. 03-2236 17

reassignments took place. The defendants argued that the

reassignments were made during a time when the company

was largely eliminating one-man trucks and moving to a

different business model of two-man trucks with crosstrained employees on each truck, demonstrating that the

reassignments were not discriminatory or retaliatory. Each

of these conclusions is faulty; none serves as an adequate

reason to overturn the jury verdicts in favor of Curtis and

Tart.

The district court attacked the verdicts both factually and

legally, and we will address the facts first. When entertaining a motion for judgment as a matter of law, the court

should review all of the evidence in the record. Reeves, 530

U.S. at 150. In doing so, the court must draw all inferences

in favor of the nonmoving party, here Curtis and Tart. Id.;

Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002). We

may not make credibility determinations or reweigh the

evidence; we must disregard all evidence favorable to the

moving party that the jury is not required to believe.

Reeves, 530 U.S. at 150-51. “That is, the court should give

credence to the evidence favoring the nonmovant as well as

that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that

evidence comes from disinterested witnesses.” Reeves, 530

U.S. at 151 (internal quote marks omitted). We are particularly careful in employment discrimination cases to avoid

supplanting our view of the credibility or weight of the

evidence for that of the jury. Hybert v. Hearst Corp., 900

F.2d 1050, 1054 (7th Cir. 1990). See also Tuohey v. Chicago

Park Dist., 148 F.3d 735, 740 (7th Cir. 1998) (noting we are

particularly careful in employment discrimination cases not

to substitute our own view of credibility or weight of the

evidence for that of the jury). This is because employment

discrimination cases often involve sensitive and difficult

issues of fact, and plaintiffs often have only circumstantial

evidence on which to rely. Hybert, 900 F.2d at 1054. 
18 No. 03-2236

The district court found that the reassigned positions on

the two-man trucks were not objectively inferior to other

positions filled by gas journeymen but merely caused

bruised egos and personal humiliation. This is so, the court

found, because there was no showing that the tasks on the

two-man truck involved any less a degree of responsibility

or constituted a stripping of duties as compared to the

meter shop and the one-man truck. When viewing the facts

in a light most favorable to the winning plaintiffs, this is

simply not true. Before the reassignment, Curtis worked

independently, mostly indoors, repairing gas meters and

other equipment, working with computers, maintaining the

building’s electrical and mechanical systems, and sometimes answering customer service calls on a one-man truck.

At times, he assisted the office staff with their computer

problems. Tart also worked independently on a one-man

truck, which involved customer contact, skilled work

repairing gas leaks both inside and outside of homes, and

computer access. After the reassignment, which the company’s own Human Resources manager concluded was due

to race discrimination, Curtis and Tart worked outdoors

in winter digging ditches under the supervision of

Caucasian workers they themselves had previously trained.

Gone was the independence, the largely indoors environment, the computer access, the skilled labor involved in

fixing equipment and repairing gas leaks, and the customer

contact. Instead, they were now construction laborers,

digging ditches, under the hyper-vigilant eye of a manager

who told their new supervisors to work them until they

quit. Characterizing their preference for their former

positions as “subjective” strains credulity and strips the

jury of its province as fact-finder. 

According to the district court, the case law does not

support a finding of adverse employment action because
No. 03-2236 19

4 The district court framed the issue in terms of the plaintiffs’

failure to prove an element of the prima facie case for employment

discrimination. Of course, after a trial on the merits, disputes

about the prima facie case fall away and we need resolve only the

ultimate question of whether there was sufficient evidence for the

jury to conclude that race was a determinative factor in an

adverse employment action taken by the defendants. McNabola v.

Chicago Transit Authority, 10 F.3d 501, 514 (7th Cir. 1993); U.S.

E.E.O.C. v. Century Broadcasting Corp., 957 F.2d 1446, 1455 (7th

Cir. 1992). The sole element of the claim challenged by the

defendants is whether they took an adverse employment action

against the plaintiffs and thus that is where we will focus our

discussion.

Curtis and Tart retained their salary, title and benefits.4

The court characterized the reassignments as lateral moves

that could not be considered adverse under the case law.

But a review of the cases on which the district court relied

reveals otherwise. Consider Hernreiter v. Chicago Housing

Authority, 315 F.3d 742 (7th Cir. 2002), cert. denied, 124 S.

Ct. 472 (2003). There the plaintiff was reassigned from the

position of field investigator to auditor (a position he

previously held). We noted that the financial terms of

employment were identical and the same skills were used

in each position. The major differences were that investigators were offered the use of a company car and were

excused from having to sign in and out of an office. The

auditors, on the other hand, did not have to travel out in

the field and held an office position. Although the plaintiff

had an idiosyncratic preference for being out in the field, we

concluded that the trivial differences between the two jobs

did not justify “trundling out the heavy artillery of federal

anti-discrimination law.” 315 F.3d at 745. As we have

described, the reassignments here did not involve the use of

the same skills, and the differences between the jobs could

hardly be described as trivial. The reassigned jobs were

objectively inferior; they involved far less skill and signifi-
20 No. 03-2236

cantly harsher working conditions than the plaintiffs’ prior

positions. Few if any workers would choose to leave independent, skilled positions on one-man trucks or in the

meter shop to report to winter ditch digging duty under the

supervision of employees they had previously trained. Few

workers in today’s job market would choose to give up

access to computers so they could spend the winter on

trenchers and with shovels, digging the holes that made

way for other workers to complete the skilled part of the

labor. This preference is not idiosyncratic; it is universal.

The district court also likened this case to Flaherty v. Gas

Research Inst., 31 F.3d 451 (7th Cir. 1994). Flaherty’s

position as principal scientist was to be eliminated and he

was instead offered a position as senior project manager.

The company considered this a lateral transfer with no

change in salary or benefits. The responsibilities of the two

jobs were comparable although the new position held

greater job growth potential. 31 F.3d at 457. Flaherty

objected to the new position largely because it involved a

title change and required him to report to a former subordinate who was merely a manager when he had previously

reported to a senior vice president. 31 F.3d at 457. We

found that the title change and different reporting relationship were largely semantic “where the employee’s

salary, benefits, and level of responsibility would remain

unchanged.” Id. We noted that the change in reporting may

well have bruised Flaherty’s ego but a plaintiff’s perception

that a lateral transfer would be personally humiliating is

insufficient, absent other evidence, to establish a materially

adverse employment action. Id. It is the other evidence that

distinguishes the instant case, evidence that the level of

responsibility diminished significantly and that skills

involving gas line repair and equipment maintenance were

set aside so that the plaintiffs could learn to dig ditches to

the satisfaction of a manager who had to be restrained from

calling them “niggers.” Traylor v. Brown is similarly
No. 03-2236 21

distinguishable because the plaintiff there was not demoted

or disciplined and her job responsibilities were not materially diminished. 295 F.3d 783 (7th Cir. 2002). 

Crady is no more comparable than the other cases on

which the district court relied. Crady v. Liberty Nat’l Bank

& Trust Co. of Indiana, 993 F.2d 132 (7th Cir. 1993). Crady

was hired as an assistant vice president and manager of a

bank. He was later transferred to another branch of the

bank into the position of loan officer. Although there was a

title change, there was no wage reduction. Crady demonstrated that his responsibilities changed, but he failed to

show that his new responsibilities were less significant than

those of his prior position. With this failure of proof, we

held, the title change alone was not enough to show materially adverse employment action. 993 F.2d at 136. We

remarked that a materially adverse change may be indicated by, among other things, “significantly diminished

material responsibilities or other indices that might be

unique to a particular situation.” 993 F.2d at 136. Here, as

we have noted, there was plenty of evidence of significantly

diminished responsibilities. The list need not be repeated;

the plaintiffs were not simply shuffled from one desk job to

another as occurred in Crady.

That leaves Spring v. Sheboygan Area School Dist., 865

F.2d 883 (7th Cir. 1989), where a school principal was

transferred to a dual principalship over two schools of similar staff and student size during a district reorganization.

Her reassignment included a two-year contract and a merit

pay increase. 865 F.2d at 885. The new job was farther from

Spring’s home but reimbursed her for travel expenses. We

summarized the new job as “another principalship for more

pay under a longer-term employment contract,” and

accordingly declined to characterize it as materially adverse. 865 F.2d at 886. This ruling was hardly a stretch

because the plaintiff herself had testified in her deposition

that she did not think the new position was a “lesser job.”
22 No. 03-2236

Id. None of the factual circumstances of these cases comes

close to what happened to Curtis and Law.

The case law in fact supports the jury’s verdict amply.

In Hernreiter, we set forth three categories of cases where

the courts have found the criteria for materially adverse

employment action to be met: (1) cases in which the employee’s compensation, benefits or other financial terms of

employment are diminished, including cases where employment is terminated; (2) cases in which a nominally

lateral transfer without a change in financial terms significantly reduces the employee’s career prospects by preventing him from using the skills in which he is trained and

experienced; and (3) “[c]ases in which the employee is not

moved to a different job or the skill requirements of his

present job altered, but the conditions in which he works

are changed in a way that subjects him to a humiliating,

degrading, unsafe, unhealthful, or otherwise significantly

negative alteration in his workplace environment—an

alteration that can fairly be characterized as objectively

creating a hardship, the classic case being that of the

employee whose desk is moved into a closet.” Hernreiter,

315 F.3d at 744-45 (emphasis in original). Curtis and Tart

are well within the bounds of the third category and

arguably within the bounds of the second, based on the

evidence accepted by the jury. Curtis’s work area was not

just moved to a closet; it was moved to a cold, wet, muddy

trench. Likewise for Tart, who lost the one-man truck and

the work that went with it. If the moved desk is an objectively and sufficiently worse condition of employment, it is

difficult to conceive how the district court characterized the

move from one-man trucks and the meter shop into the

trenches as “subjective” and purely lateral. Cf. Parrett v.

City of Connersville, Indiana, 737 F.2d 690, 693 (7th Cir.

1984) (chief of detectives relegated to desk job with no

duties suffered a loss of property cognizable under the

Fourteenth Amendment). See also Durham Life Ins. Co. v.
No. 03-2236 23

Evans, 166 F.3d 139, 152-53 (3d Cir. 1999) (loss of an office

and secretary deemed adverse employment action even

though pay and title remained the same); Parrish v.

Immanuel Medical Center, 92 F.3d 727, 731-32 (8th Cir.

1996) (adverse action found when hospital registrar who

previously received patients into hospital, obtained information from patients for hospital records and responded to

public inquiries was reassigned to clerical duties that

consisted of assembling and stapling papers together with

no computer work or patient contact). 

Even Flaherty, on which the district court relied in part,

clarified that an employer could not insulate itself from

liability for discrimination simply by offering a transfer at

the same salary and benefits. 31 F.3d at 456-57.

Indeed, we observed in Collins v. State of Illinois, 830

F.2d 692, 703 (7th Cir. 1987), that other courts have

found adverse employment actions in the following

circumstances where salary and benefit levels were

retained: in an employer’s moving an employee’s office

to an undesirable location, transferring an employee to

an isolated corner of the workplace, and requiring an

employee to relocate her personal files while forbidding

her to use the firm’s stationary and support services.

Flaherty, 31 F.3d at 457 (internal quote marks omitted). See

also Collins, 830 F.2d at 702 n.7 (collecting cases where a

lateral transfer with no loss in pay or benefits nonetheless

qualified as a materially adverse employment action);

McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994)

(secretary laterally transferred to a clerk-typist position

with no loss in pay demonstrated adverse employment

action where the new position entailed fewer responsibilities, more menial tasks and a lesser opportunity for salary

increases in the future).

The instant case is more comparable to Collins than

to any of the cases relied upon by the district court. Collins
24 No. 03-2236

was an African-American library consultant who was

transferred from the library’s “development unit” to its

“reference unit” with no change in pay or benefits. We found

that the following evidence “amply demonstrated” adverse

job action:

She was transferred away from a job she enjoyed. She

was placed in a new department. Her new supervisors

seemed unsure of what plaintiff’s responsibility and

authority would be at the newly created job. Plaintiff

was relegated to doing reference work instead of consulting. Plaintiff previously had her own office, a telephone at her desk, printed business cards, and listings

in professional publications as a library consultant.

After her transfer plaintiff was placed at a desk out in

the open. She did not have her own office. Her desk was

situated just outside the supervisor’s office where a

receptionist’s desk typically would be located. Plaintiff

had no telephone at her desk with which she could

conduct her business responsibilities. She was not

allowed to have business cards printed and she was no

longer listed in professional publications as a library

consultant.

Collins, 830 F.2d at 704. Both Curtis and Tart were transferred away from jobs they enjoyed and placed in new

positions. Curtis’s new supervisor, Frank Verdu, had no

idea what he was supposed to be doing with Curtis and was

told only that he was being assigned Curtis because no one

else would take him, and that he should work him until he

quit. Verdu questioned the validity of the training rationale

because he himself had been trained by Curtis and believed

he had nothing to teach him, a fact of which Law was well

aware. Where previously Curtis and Tart had access to oneman trucks (and in Curtis’s case access to the meter shop as

well) and all of the attendant benefits of those positions,

now they were outdoors nearly all the time, similar to the

moving of Collins’ desk. Collins lost her telephone and
No. 03-2236 25

business cards; Curtis and Tart lost their computers, their

independence, customer contact and their skilled job duties.

Collins’ loss is indistinguishable from the losses suffered by

Curtis and Tart. See also Hoffman-Dombrowski v. Arlington

Int’l Racecourse, Inc., 254 F.3d 644, 649-51 (7th Cir. 2001)

(employee laterally transferred from position as building

manager to assistant managerial position involving severely

diminished job responsibilities but with no loss in pay,

benefits or title adequately demonstrated materially

adverse employment action); Dahm v. Flynn, 60 F.3d 253,

257 (7th Cir. 1994) (decreasing some job responsibilities

while increasing other duties can, under limited circumstances, constitute an adverse employment action; an

ostensibly lateral transfer may be an adverse employment

action if it is accompanied by a dramatic downward shift in

skill level required to perform job responsibilities). The

evidence here was more than adequate to support the jury’s

verdict that Curtis and Tart suffered materially adverse

employment actions.

We turn then to the retaliation claims. To prevail on a

claim for retaliation, a plaintiff must show that (1) he complained about conduct that is prohibited by Title VII; (2)

he suffered an adverse employment action; and (3) the

adverse employment action was caused by his opposition to

the unlawful employment practice. Spearman v Ford Motor

Co., 231 F.3d 1080, 1086 (7th Cir. 2000), cert. denied, 532

U.S. 995 (2001). The district court found that the plaintiffs’

retaliation claim failed on all three prongs. We have already

addressed the adverse employment action question, which

the jury resolved in favor of the plaintiffs. We now address

the other two prongs. 

According to the district court, the reassignments took

place the day before Curtis and Tart called Human Resources to complain about the discipline for the Loisel Drive

job. In order to be retaliatory, the court held, the reassignments must have come after the complaint. There are two
26 No. 03-2236

answers to the court’s questionable reasoning and the jury

was free to adopt one or both. First, the reassignments

came at the end of many months of intense scrutiny by Law

following the plaintiffs’ first call to Human Resources. After

Law’s agitated pronouncement in 1996 that “somebody done

called EEOC,” he made good on his promise to watch the

plaintiffs closely, waiting for a misstep. He considered the

Loisel Drive job to be that misstep and he applied such a

heavy hand that first the union and then the company’s

own human resource manager ordered him to undo his socalled discipline. The reassignment was thus one more step

in Law’s campaign of increased scrutiny following the first

complaint of race discrimination. That is one way in which

the jury may have viewed the reassignments as retaliatory.

The jury was free to find that the reassignments were also

retaliation for the second call to Human Resources, even

though the timing at first appears off. Law’s insistence that

the plaintiffs remain in “training” for five and seven months

respectively, when no other employee had been subjected to

training for more than a few weeks demonstrates that

continuing the punishment for such a lengthy period after

learning of the call to Human Resources was indeed

retaliatory. Law even went so far as to openly refuse to

implement the corrective action dictated by the company’s

own human resource manager. When ordered to return

Curtis and Tart to their former assignments, he refused and

his supervisor backed him up. This refusal came, of course,

after the plaintiffs complained to Human Resources. In this

sense, the jury was free to find that the retaliation was not

the original reassignment to training (which might have

lasted a few weeks if the plaintiffs had not complained

about race discrimination), but rather the lengthy continuation of the “training” and the refusal to return the plaintiffs

to their former positions after learning of the complaint of

race discrimination.

The district court also concluded that the initial call to

Human Resources could not be “protected activity” because
No. 03-2236 27

that call was not race-related and was not understood by

the defendants to be race-related. This conclusion erroneously construes the evidence in a light most favorable to the

defendants. Curtis testified that he told Justice that he and

Tart were being treated in a biased manner by Law, that a

white employee was attacking and harassing them, and

that Law was doing nothing about it despite their complaints. Tr. Vol. II, at 36-37. Curtis testified, “I told him

that it was biased and that’s the term I used. He understood what I was saying. He knew I was talking about

race.” Tr. Vol. II, at 156. Justice then called Law to discuss

the incident and Law in turn called a meeting to “flush the

birdie,” that is, to determine who blew the whistle. Law’s

proclamation at this meeting that “somebody done called

EEOC” demonstrated that Law was certainly aware a

complaint of race discrimination had been made. The reference to the EEOC was all the jury needed to conclude that

both Justice and Law perceived the complaint to be racerelated. Curtis’s testimony that he discussed bias and the

race of the harasser when he spoke to Justice corroborated

this. This was sufficient evidence from which the jury could

conclude that Curtis was reporting race discrimination and

that Justice and Law understood the call to be a complaint

regarding race discrimination. 

Finally, the jury was not persuaded by the company’s

proffered explanation for the reassignments. The company

argued at trial that the reassignment occurred at a time

when it was cross-training its workers to be both laborers

(the workers who dug ditches) and fitters (the skilled

position Curtis and Tart originally held) so that both

workers on a two-man truck would be capable of completing

both laborer and fitter tasks. The purpose of this shift was

to save salary costs, especially overtime. The company

claimed Curtis and Tart were reassigned for training as

laborers so they could be part of the company’s new crosstrained two-man trucks. The jury was not obliged to believe
28 No. 03-2236

this explanation and the verdicts are clear indications that

they rejected this post hoc excuse for the reassignments.

Reeves, 530 U.S. at 150-52. Recall the standard we are to

apply once the jury has spoken. In entertaining a Rule 50

motion for judgment as a matter of law, we must draw all

reasonable inferences in favor of the nonmoving party, in

this case Curtis and Tart. See id. Although we review the

record as a whole, we must disregard all evidence favorable

to the moving party that the jury is not required to believe.

Reeves, 530 U.S. at 151. That is, we should give credence to

the evidence favoring the nonmovant as well as the evidence supporting the moving party “that is uncontradicted

and unimpeached, at least to the extent that that evidence

comes from disinterested witnesses.” Reeves, 530 U.S. at

151. The jury was not required to believe the defendants’

testimony regarding cross-training for two-man trucks. All

of this testimony came from interested witnesses, and was

contradicted by, among other things, the company’s continued use of one-man trucks. Indeed, the company continued

to use the one-man trucks originally assigned to Curtis and

Tart; those very trucks were reassigned to Caucasian

employees. Ultimately, Tart returned to a one-man truck,

indicating the company had not in fact phased them out in

favor of the two-man cross-trained trucks. There was also

evidence that neither of the plaintiffs’ new supervisors were

told to train the plaintiffs, and one testified he had nothing

to teach the man who had trained him. Rather, the new

supervisors were told to work the plaintiffs until they quit.

The evidence taken in a light most favorable to the plaintiffs shows that, even if the company was cross-training

some workers for this new system, the plaintiffs were not

reassigned as a result of the new need for cross-trained

employees but rather were reassigned because of their race

and because they complained about race discrimination.

Indeed, the company’s own human resources manager

concluded that the prolonged reassignment was punitive

and race-based, and ample evidence demonstrated that
No. 03-2236 29

“training” was merely a pretextual label applied to the

punishment. The jury rejected the employer’s purportedly

nondiscriminatory reason for adverse action. Gustafson, 290

F.3d at 909 (“We are not entitled to speculate as to what the

employer may have considered the facts to be and what

concerns about operational efficiencies it may have had,

once the record shows what those concerns really were.”).

We may not substitute our judgment for that of the jury.

We therefore reverse the judgment of the district court and

remand with directions to reinstate the jury verdict.

Because we are reinstating the verdict, we must briefly

address the district court’s conditional grant of a new trial.

The district court based this ruling on its belief that the

verdict was against the manifest weight of the evidence.

This belief in turn rested on the court’s erroneous conclusions that (1) the plaintiffs failed to prove the element of

adverse employment action on their claim of employment

discrimination; and (2) for the retaliation claim, the plaintiffs failed to prove that they complained about conduct

prohibited by Title VII, and failed to show a causal connection between their complaint and the actions taken by their

employer. Because there was ample evidence supporting the

jury’s verdict on both of these claims, any grant of a new

trial would be unwarranted and erroneous. We therefore

reverse the court’s conditional grant of a new trial.

III.

In summary, we reverse the district court’s conditional

grant of a new trial. We also reverse the court’s judgment

in favor of the defendants and remand with directions to

reinstate the jury verdict.

REVERSED and REMANDED.
30 No. 03-2236

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-26-04