rate is essential.” Id. By failing to present evidence of a lower rate, the defendant “essentially”
concedes the claimed rate should be awarded. Id.

Here, the Best Firm has submitted affidavits from its two attorney’s who tried this case
and billed the majority of the hours, attesting that they have been awarded a rate of $250 per hour
in several employment discrimination cases in this district. The Village contends that these
affidavits are not sufficient because they do not list the names of the cases where they were
awarded this rate. In response, the Best Firm contends that it did not list the names of these cases
because they are subject to confidential settlement agreements but would be willing to submit
proof of these awards for in camera review. The Court finds that the sworn affidavits are
sufficient proof that $250 per hour is a reasonable market rate for the Best Firm.

Next, the Village objects to the use of a 2.0 multiplier. The Best Firm,
contends that it is entitled to a 2.0 multiplier based on the fact that there was a risk that it would
not be paid for their time because the firm took this case on a contingency basis. Courts are
permitted to multiply a fee award if the case involved exceptional circumstances or there was a
substantial risk that the prevailing party would not prevail in the case. Cook v. Niedert, 142 F.3d
1004, 1015 (7th Cir. 1998). Here, the Best Firm has not put forth any evidence to show that this
case was any different than the typical employment discrimination case. Therefore, this Court
will not apply a multiplier to the fees.

Bloomingdale additionally contends that the total number of hours charged by the Best
Firm are unreasonable because many of the hours billed were duplicative, not related to this case,

vague, and excessive.‘ A court may reduce the hours billed for being unreasonable if the court

4 After the parties conducted a Local Rule 54.3 conference, they reached an agreement as to

some of the issues. With respect to the alleged unrelated entries, the Best Firm agreed to only
claim 2.6 of the 5.8 hours in dispute. Also, the Best Firm agreed to deduct 1.7 hours for

19



complete bar to punitive damages, only that it “incorporate[d] a particular immunity defense.” Id.
259.

Relying on City of Newport, the Seventh Circuit has held that “[a]s a general rule, local
public entities are immune from punitive damage awards in civil rights actions,” but that the
“local governmental entity” may waive its immunity for liability for punitive damages. Kolar v.

County of Sangamon, 756 F.2d 564, 567 (7th Cir. 1985). In Kolar, the court affirmed the award

of punitive damages against the local governmental entity on the grounds that Illinois state law
waived the local municipality’s immunity from punitive damage awards. Id.

Consequently, based on City of Newport and Kolar, this Court finds that section 1981a is

not a complete bar to punitive damages but rather an immunity defense, which local
governmental entities may waive. Thus, the question remains as to whether section 1981a’s
immunity defense is an affirmative defense which must be timely asserted under Federal Rule of
Civil Procedure 8(c).

While neither the Supreme Court nor the Seventh Circuit have addressed this issue, the
First Circuit and at least one court in this district have held that immunity is an affirmative
defense which is waived if not timely raised under Rule 8(c). In Chestnut v. City of Lowell, 305
F.3d 18, 19 (1st Cir. 2002), the trial court, without objection, gave the jury a punitive damage
instruction, resulting in an award of $500,000 in punitive damages against the city. On appeal,
the city claimed the instruction was improper because it was immune from liability under City of
Newport. Id. In a concurring opinion, reversing the award, the circuit judge noted that under
City of Newport, the Supreme Court did not hold that punitive damages are unavailable, but
rather only that municipalities are immune from damages. Id, at 22. Noting the significance of

this distinction, the judge then noted that “[iJimmunity .. . is an affirmative defense which can

13



it impossible economically to recover photocopying costs,” Northbrook Excess & Surplus Ins.
Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir.1991), the Court cannot award
photocopying costs without some confidence that the costs are properly recoverable. In the
absence of a more detailed affidavit or some other reliable verification that the copying costs
were necessary for presenting evidence to this court, the Court declines to tax photocopying
costs.

The Best Firm also seeks reimbursement of $2,453.74 for the costs incurred for lodging
in Chicago during the trial. While the Court recognizes that travel expenses may be taxed in
some instances, it is unreasonable for attorneys who practice in the suburbs to be reimbursed for
staying in a hotel in Chicago during trial. Therefore, the Court declines to tax the Village for
hotel expenses.

Additionally, the Village objects to several claimed expenses (Def. Exs. G and I) on the
grounds that they are part of the Best Firm’s overhead and therefore not recoverable. The Court
agrees that items such as office supplies are not taxable as costs. Therefore, the Court declines to
tax the $1005 in expenses set out in Exhibits G and I in the Village’s objections on the grounds
that these costs are either too vague or unnecessary to be taxed.

In conclusion, of the $34,307.02 in costs sought by the Best Firm, the Court denies the
request for 1,435.34 in copying charges, $2,453.74 in hotel expenses, and $1005 in other costs,
and taxes the Village $29,412.94 in costs.

IV. Motion for Front Pay Damages

Title VII provides that a prevailing plaintiff may obtain both equitable and compensatory

remedies. Section 2000e-5(g)(1) authorizes the courts to “order such affirmative action as may

be appropriate, which may include, but is not limited to, reinstatement or hiring of employees,

23


future to allow the office to function normally.” (Agreed Facts at J 19.) This one point drop in
her score resulted in Mehringer receiving a lower raise than she would have otherwise. In
contrast, Monikemeyer, did not receive a negative performance evaluation and was even
promoted and received a raise.

Finally, Mehringer left her position on March 10, 2000 because: (1) she was unable to
endure Monikemeyer’s continuing harassment; and (2) Bloomingdale had not responded to her
repeated complaints and punished her for complaining of the harassment while promoting the
alleged harasser.

Upon leaving her position, Mehringer filed an EEOC complaint. After receiving a right
to sue letter, Mehringer filed the instant action alleging hostile environment sexual harassment
(Count I) and retaliation (Count IT) in violation of Title VII, and breach of contract (Count TID) on
the theory that Bloomingdale’s sexual harassment policy created a contractual obligation.

On September 18, 2001, this Court denied Bloomingdale’s Motion to Dismiss Counts I and II,
but granted it as to Count III. Mehringer then amended her complaint adding a charge of sexual
discrimination based on the alleged disparate treatment to which she was subjected after
complaining of the alleged harassment. In response, Bloomingdale filed a Motion to Dismiss the
sexual discrimination claim, which this Court denied.

On the eve of trial, the Village moved for summary judgment on the grounds that
Monikemeyer’s conduct was not based on sex. Instead, according to Bloomingdale, assuming
that his harassing conduct actually occurred, it was motivated not by gender but by a “failed
relationship,” and therefore, did not fall under the protections of Title VII. The Court took the
motion for summary judgment with the case and proceeded to trial. After the close of

Mehringer’s case in chief, the Village moved for a directed verdict on the same grounds as in its


finds that the fees are inefficient, duplicitous, or inadequately documented. People Who Care, 90
F.3d at 1314.

With regard to duplicative entries, the Court has reviewed the entries which the Village
contends are duplicative and except for the attendance at some of the depositions by two
attorneys, the Court does not see how they are duplicative. The attendance at trial by two
attorneys, both of whom participated in the trial of the case, is not unreasonable. However, the
Court finds that it was duplicative and unnecessary for the Best Firm to have more than one
attorney attend a deposition. Therefore, the Court will reduce the hours billed by 21.1 hours for
having more than one attommey attend any one deposition.

The Village also lists a litany of time entries which it contends are vague and excessive.
Bloomingdale, however, has failed to detail exactly how these entries are vague and/or excessive.
After carefully reviewing these contested entries, the Court finds that the following entries billed
for routine court appearances and filings are excessive:

* No. 132 File two motions 1.2

* No. 449 Filing motions with court and delivering to judge’s chambers 11
* No. 587 Attend Status 4.0
* No. 680 Attend motion for substitution 4.0

+ No. 730 Attend motion to dismiss and status 4.0

+ No. 755 Attend Court regarding motion to continue pretrial 4.2

+ No. 853 Attend status 3.8

+ No. 985 Attend Defendant’s Motion for entry of Motion for Summary Judgment 4.0

The Court finds that the filing of motions should not be billed as attorney time and that the Best
Firm could have sent attorneys from its Chicago office to attend statuses and routine motions,

instead of having attorneys drive in from Wheaton, a Western suburb of Chicago. Therefore, the

Court will reduce the time hours by 22 hours based on the above entries being excessive.

observation of the trial. Therefore, the Court will deduct 4.9 hours from the total hours billed.

20


discrimination which would have precluded her from seeking work or is or will be hindered in
any way from securing employment in the future. Consequently, not having put forth any
competent evidence or calculations for a reasonable award of front pay damages, this Court

DENIES Mehringer’s Motion for Front Pay Damages.

26


945 (7 th Cir.1997). “The presumption is difficult to overcome, and the district court's discretion
is narrowly confined--the court must award costs unless it states good reasons for denying them.”
Id.

With respect to copying charges, “only photocopying charges attributable to discovery
and the court’s copies of pleading motions, and memoranda . . . can be awarded.” AA Sales &

Assocs., Inc. v. JT&T Products Corp., 2001 WL 855867, at *2 (N.D. Ill. July 27, 2001). Copies

of court filings for a party's personal use, extra copies of filed papers and correspondence, and

copies of cases are not recoverable. Id. See also Haroco v, American Nat'l Bank & Trust of

Chicago, 38 F.3d 1429, 1441 (7th Cir.1994); McIlveen v. Stone Container Corp., 910 F.2d 1581,

1584 (7th Cir.1990). “Although the prevailing party is not required to submit a bill of costs so
detailed as to make it impossible economically to recover photocopying costs, where a court is
unable to determine whether the copies in question were reasonably necessary for use in the case,

the claim for costs should be denied.” American Auto. Accessories v. Fishman, 991 F. Supp.

995, 997 (N.D. Ill. 1998). See also Products v. International Union of Operating Engineers, 1996

WL 139249, at *2 (N.D. Ill. March 26, 1996) (“[g]enerally, conclusory assertions that copying

costs were necessary are not convincing”); Mortenson v. National Union Fire Ins. Co., 2000 WL

347766 *1 (N.D. Ill. April 3, 2000) (court refused to tax copying costs where it could not
ascertain use of copies).

Here, the only documentation which the Best Firm submitted were general descriptions
such as “Copy expenses in Wheaton for October.” These descriptions do not reflect the purpose
for the copies, whether multiple copies were made of the same documents, or what documents
were copied, and therefore, do not aid the court in assessing the copying costs. Although the

Best Firm is not required to submit a bill of costs “containing a description so detailed as to make

22



must show that the amendment of the answer will cause it “undue surprise or prejudice.”
Jackson, 213 F.3d at 392-93. Mehringer, however, has failed to show, either during the pretrial
proceedings or now, how it would be prejudiced by the amendment.

Accordingly, upon further review of the facts, this Court finds that the jury should not
have been given a punitive damage instruction because the Village did not waive its right to
assert its statutory right of immunity from punitive damages, The Court thus strikes that jury’s
award of $750,000 in punitive damages against the Village.

Ill. Petition for Fees and Costs

As the prevailing party, Mehringer seeks attorneys’ fees in the amount of $605,000 and
$34,307.02 in costs associated with the preparation and trial of this case and the post-trial
motions. The Village has objected to both the request for fees and costs on the grounds that they
are unreasonable and excessive. The Court will first discuss the fees and then the costs,

A Attorneys’ Fees

Title VII provides that “[iJn any action or proceeding under this subchapter the court, in
its discretion, may allow the prevailing party. . . a reasonable attorney's fee (including expert
fees) as part of the costs.” 42 U.S.C. § 2000(e-5)(k). Here, there is no dispute that Mehringer is
the prevailing party because she succeeded at trial on significant issues in litigation. Hensley v.

Eckerhart, 461 U.S. 424, 433, (1983); Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 872 (7th

Cir.1995); Bigby v. City of Chicago, 927 F.2d 1426, 1429 (7th Cir.1991).

The parties, however, disagree on the rate charged and the number of hours billed.
Mehringer’s attorneys, Best, Vanderlaan, & Harrington (“the Best Firm”) seeks $605,000 in fees
which they arrived at by multiplying 1,210 hours billed by a rate of $250 per hour and applying a

multiplier of 2.0.

V7


based on her gender. “There is no evidence indicating that [the male supervisor’s] hostility
toward [the plaintiff] was motivated by anything other than personal animosity arising from the
failure of their relationship.” Id. at *4. Therefore, the court found that the plaintiff failed to
allege a hostile environment claim under Title VII. Id,

Here, upon further review of the evidence, this Court finds that, construing the evidence
in Mehringer’s favor as is required, the testimony presented at trial leads to only one reasonable
conclusion ~ that Monikemeyer’s harassment was based upon animosity stemming not from
Mehringer’s gender but from their prior failed relationship and/or his desire to rekindle their
relationship. Mehringer and Monikemeyer were romantically involved for two months — a month
in late-1993/early-1994 and a month in the fall of 1997. Mehringer testified that when she ended
the relationship the second time, she told him that she “loved” Ray Mehringer and had decided to
marry him. Upon hearing this news, Monikemeyer became “very upset” and stated that they
“belonged together” and that she “should be marrying [him] not Ray.” (Tr. at 92-93.)

Mehringer testified that after she refused to resume their relationship Monikemeyer began
a campaign of harassment, which became more aggressive over time, to win her back. At first,
according to Mehringer, Monikemeyer simply expressed his desire to rekindle their relationship
and asked whether there “was any chance that [they] could get back together.” (Id, at 101.)
Monikemeyer’s conduct, however, escalated when on Valentines Day of 1999, he sent flowers to
her home, in an “attempt to ruin her weekend” and “breakup [her] marriage to Ray.” (Id. at 103.)
Monikemeyer also told her that after spending several hours over the weekend searching for her
and Ray’s home, he now knew where she lived. (Id, at 103-04.) Although disturbed by this
conduct, Mehringer testified that she “thought it was an issue outside of work that she could

handle on her own.” (Id. at 104.)


genuine issue of material fact exists, the court must construe the alleged facts in a light most

favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962);

Dale v. Chicago Tribune Co., 797 F.2d 458, 460 (7th Cir. 1986).

The moving party carries the initial burden of establishing that no genuine issue of
material fact exists. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323. Once the moving party
has met its burden, the nonmoving party must set forth specific facts showing that there is a

genuine issue for trial. Fed. R. Civ. P. 56(e); Becker v. Tennenbaum Hill Assoc., Inc., 914 F.2d

107, 110 (7th Cir. 1990). The nonmoving party must do more than “show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986), and may not merely rest upon the allegations or denials in its pleading,
but instead must “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248. If the evidence presented is “merely colorable” or is not
“significantly probative,” summary judgment may be granted. Id. at 250-51 (citations omitted).
The court considers the record as a whole, and draws all reasonable inferences in the light most
favorable to the nonmoving party. Regner v. City of Chicago, 789 F.2d 534, 536 (7th Cir. 1986).
Courts are cautious in granting summary judgment in employment discrimination cases

because often issues of intent and credibility are involved. Sarsha v. Sears, Roebuck & Co., 3

F.3d 1035, 1038 (7th Cir. 1993); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368,
370-71 (7th Cir. 1992). Summary judgment is inappropriate if the court must balance conflicting
indications of motive and intent. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir.
1985). An employer can only prevail at the summary judgment stage if the record shows that a
reasonable trier of fact must conclude that the employment decision was not based on

discrimination. Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893-94 (7th Cir. 1996).



summary judgment motion. At the close of evidence, the Court denied both of these motions but
state that it would issue a written opinion at a later date.

At the conclusion of the trial, the jury returned a verdict in favor of Mehringer on all
counts and awarded her $50,000 in compensatory damages and $750,000 in punitive damages.
The present matter comes before the Court on Bloomingdale’s Motion for Judgment
Notwithstanding the Verdict [???] and Motion to Strike the Punitive Damages Award and
Mehringer’s Post-Trial Fee Petition and Petition for Front Pay Damages.

ANALYSIS
I. Motions for Summary Judgment and Directed Verdict.

At the close of evidence, but before the case went to the jury, this Court denied the
Village’s Motion for Summary Judgment, which was taken with the case, and Motion for
Directed Verdict. After further review of the relevant evidence and the law, however, this Court
finds that it should have entered judgment on Mehringer’s claim for hostile environment sexual
harassment (Count I).

Before discussing why judgment is appropriate on Count I, this Court will review the
standard for determining a motion for summary judgment and motion for directed verdict.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c), See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23; Cheek v. Western &

Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). A genuine issue of material fact is one
that might affect the outcome of the lawsuit, and factual disputes that are irrelevant will not be

considered. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 249 (1986). In determining whether a



The “most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley, 461 U.S. at 433. The result is commonly referred to as the “lodestar.” Id. The party
seeking the award bears the burden of proving the reasonableness of the hours worked and the
hourly rates claimed. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir.1999).
The lodestar amount then can be reduced or increased in consideration of a number of factors
based on:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill

required to perform the legal service properly; (4) the preclusion of employment by the

attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed

or contingent; (7) time limitations; (8) the amount involved and the results obtained; (9)

the experience, reputation, and ability of the attomeys; (10) the "undesirability" of the

case; (11) the nature and length of the professional relationship with the client; and (12)

awards in similar cases.
Hensley, 461 U.S. at 441.

When determining the number of hours reasonably expended in the litigation, the court
must ensure that counsel exercised “billing judgment,” that is, it must allow only such fees that
would normally be billed to a paying client. Spegon, 175 F.3d at 553. In determining the
reasonable hourly rate, the court must determine the “market rate” for the services rendered, that
being the “rate that lawyers of similar ability and experience in the community normally charge
their paying clients for the type of work in question.” Id. at 555. The burden is on the party
seeking fees to establish the market rate. Id, at 554-55. To establish the market rate, an attomey
may submit an affidavit stating that the attorney has been awarded comparable rates in similar
cases. See People Who Care v. Rockford Bd. of Ed., Sch. Dist. No. 205, 90 F.3d 1307, 1312

(7th Cir. 1996). Once the plaintiff's attorney puts forth appropriate evidence of a reasonable rate,

the burden shifts to the defendant to “present evidence establishing a good reason why a lower

18



In Galloway, 78 F.3d at 1165, the plaintiff brought an action against her employer
alleging that a co-employee, with whom she had a prior romantic relationship, sexually harassed
her by repeatedly calling her a “sick bitch.” Affirming the district court’s grant of summary
judgment in favor of the employer, the Seventh Circuit held that the facts showed that the co-
employee did not harass the plaintiff “on the basis of her sex.” Id. at 1168. Instead, the
inappropriate conduct occurred “in the context of a failed sexual relationship,” and the conduct
“reflected . . . a personal animosity arising out of the failed relationship rather than anything to do
with” the plaintiff being a woman. Id.

In reaching this decision, the Galloway court relied on its decision in Huenschen, 716
F.2d 1167. The plaintiff in Huenshen brought an action against his former employer alleging that
he was sexually discriminated and harassed by his former supervisor, with whom he had a
romantic relationship. Id, at 1168-69. Reversing a verdict against the employer, the court found
that the evidence failed to show that the supervisor, whom the plaintiff had dated and
recommended that he be fired, acted out of any animosity based on the plaintiff's gender. Id. at
1172. Instead, the court found that the supervisor’s conduct was motivated by the fact that the
plaintiff was her “former lover who had jilted her.” Id. Also, the court noted that there was no
evidence the supervisor “discriminated against other men in the office or attempted to have
romances with other men in the office.” Id.

Similarly, in Kaminski, 2002 WL 31174461, at *1-3, the plaintiff brought an action
alleging hostile work environment based on alleged sexual harassment by her former supervisor,
with whom she had a “dating relationship.” Granting the employer’s motion to dismiss, the court
noted that the supervisor’s actions were “reprehensible and perhaps actionable” but not

actionable under Title VII because she did not show that the supervisor’s harassing conduct was



with or without back pay... or any other equitable relief as the court deems appropriate.” In

construing this provision, courts have found that “front pay damages” are an equitable remedy

available under Title VII. See Williams v. Pharmacia, 137 F.3d 944, 951-52 (7th Cir.1998)
(front pay damages “fall squarely within the statutory language authorizing ‘any other equitable
relief”).

Front pay damages are the “functional equivalent of reinstatement because it is a
substitute remedy that affords the plaintiff the same benefit (or as close an approximation as
possible) as the plaintiff would have received had she been reinstated.” Id, at 951. Thus, courts
may award front pay damages where reinstatement is not an option because an acrimonious
relationship between the plaintiff and her employer renders reinstatement not feasible. Id.

When calculating front pay awards, a court terminates the inquiry at the point at which

the plaintiff can “reasonably be expected to have moved on to similar or superior employment.”

Willams, 137 F.3d at 954. The Seventh Circuit has characterized a front pay award as “a lump
sum . . . representing the discounted present value of the difference between the earnings [an
employee] would have received in his old employment and the earnings he can be expected to
receive in his present and future, and by hypothesis inferior, employment.” Downes v.
Volkswagen of America, Inc., 41 F.3d 1132, 1141 n. 8 (7th Cir.1994). See also Avitia v.
Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1231 (7th Cir.1995). The Seventh Circuit has
stated that in deciding whether to award front pay:

the court considers such factors as whether the plaintiff has a reasonable prospect of

obtaining comparable employment, whether the time period for the award is relatively

short, whether the plaintiff intended to work or was physically capable of working and

whether liquidated damages have been awarded.

Downes, 41 F.3d at 1141. “An employee receiving front pay in lieu of reinstatement is entitled

24



‘Minute Order Form (06/9)

United States District Court, Northern District of Illinois

ne of Assigned Judge i itting Judge if Other

venir Magistrate Juige | __Blanche M, Manning “than Assigned Jute

CASE NUMBER 00 C 7095 DATE June 26, 2003
CASE Mehringer v. Village of Bloomingdale
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

MOTION:
- DOCKET ENTRY:
ql) Oo Filed motion of [ use listing in “Motion” box above.)
(2) Qa Brief in support of motion due
(3) ia) Answer brief to motion due___._ Reply to answer brief due.
(4) Q Ruling/Hearingon eset for at
(5) im] Status hearing[held/continued to] [set for/re-set for]on___set for__—___ at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——s set for at
(7) Oo Trial{set for/re-set for] on at
(8) Oo (Bench/Jury trial] [Hearing] held/continued to___saat.
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) General Rule 21 O FRCP41(a)(1) O FRCP41(a)(2).

(10) [Other docket entry] For the reasons set forth in the attached Memorandum and Order, this Court:
(1)Grants the Defendant Village of Bloomingdale’s Motion for Summary Judgment and Motion for Directed
Verdict as to Count I of the Amended Complaint; (2) Grants the Defendant Village of Bloomingdale’s
Motion to Strike the Punitive Damages Award; (3) Grants in part and denies in part Plaintiff Shelly
Mehringer’s Post-Trial Fee Petition and taxes the Village $289,950 in attorneys’ fees and $29,412.94 in costs;
and (4) Denies Mehringer’s Petition for Front Pay Damages.

(11) Oo [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court,

A , Number:
No notices required.
umber of notices td

Y | Notices mailed by judge’s staff. JUN 27 0 :

Notified counsel by telephone

3M dag dock
Docketing to mal notices. yon’ \sio
Mail AO 450 form yynd? suas beeing feb nvts
Copy to judge/magistrate judge. yay oY
1G Wa 9th
S\ “SF
“nt dase Mailed notice
courtroom was
RTS deputy’s gt Gg 3-Q3
initials
Date/time received in
central Clerk’s Office mailing depury inivals



not from Mehringer’s gender but from their prior failed relationship and/or his desire to rekindle
their relationship. Therefore, upon further review of the relevant law and the evidence, this
Court finds that it should have granted the Village’s motion for summary judgment and motion
for directed verdict as to Mehringer’s claim for hostile environment (Count I) because the
harassment was not based on her gender and therefore, is not actionable under Title VII.

This determination, however, does not dispose of Mehringer’s action because she still has
a claim for retaliation and a claim for sexual discrimination. Even though the harasser’s conduct
was not based on sex, a plaintiff may still have a valid claim for retaliation if she believed that
she was “opposing an unlawful practice.” Kaminski, 2002 WL 31174461, at *6-7 (granting
motion to dismiss as to harassment claim because not based on sex but denying motion as to
retaliation claim).* Because the Village has not addressed or briefed how Mebringer’s failure to
prove harassment based on gender affects Mehringer’s two other claims (retaliation and
discrimination), the Court will let the jury verdict stand as to Mehringer’s claims for retaliation
and sexual discrimination.
Il. Motion to Strike the Punitive Damages Award

During the jury instruction conference, this Court found that Bloomingdale had waived its
right to assert the defense that it is immune from punitive damages because it failed to timely
raise immunity from punitive damages as an affirmative defense. Subsequently, the jury awarded
Mehringer $750,000 in punitive damages. The Village now moves to strike the punitive damage

award on the grounds the Court should not have given the instruction for punitive damages

3 To plead a claim of retaliation, a plaintiff must allege that: (1) she complained about

conduct that is prohibited by Title VII; (2) she suffered an adverse employment action; and (3)
the adverse employment action was caused by her opposition to the unlawful employment
practice. Spearman v. Ford Motor Co., 231 F.3d 1080, 1086 (7th Cir. 2000).

1



Monikemeyer’s conduct, however, grew worse. He began following her around the office
and calling her extension at work and telling her that “we definitely belong together. He couldn’t
imagine being with anybody else. He no longer understood why I stayed with Ray, and if
would just meet with him one more time, he could show me why it was that I needed to be with
him.” (1d. at 105-06.) He also began to follow Mehringer to her car after work. (Id.)

In November of 1999, Monikemeyer began to constantly follow her around at work, and
when she again rebuffed his romantic proposals, he began threatening her, making obscene
gestures, and using profanity, including calling her a “f-ing bitch.” (Id, at 112, 123-25.) Finally,
Mehringer reported these actions to her immediate supervisor and to Monikemeyer’s boss.
Unfortunately, Monikemeyer’s conduct continued, and therefore, Mehringer continued to make
complaints.

Although Monikemeyer’s conduct was certainly reprehensible and most likely actionable
both civilly and criminally for stalking, the above actions and Mehringer’s characterization of the
conduct demonstrates that Monikemeyer’s harassment was based upon animosity stemming not
from Mehringer’s gender but from their prior failed relationship and/or his desire to rekindle
their relationship. In her testimony both at her deposition and at trial, Mehringer testified that
Monikemeyer’s conduct was based upon his animosity at being jilted and learning that Mehringer
was going to marry someone else. (Tr. 213.) There was no evidence that Monikemeyer’s
conduct was motivated by anything else, let alone the fact that Mehringer is a woman. Moreover,
there was no evidence that Monikemeyer treated other women employees in a similar manner or
attempted to date other women working at the Village. Construing the evidence in Mehringer’s
favor as is required, the Court thus finds that the testimony presented at trial leads to only one

reasonable conclusion — that Monikemeyer’s harassment was based upon animosity stemming

10



The standard for a motion for a directed verdict under Rule 50(a), which requires the
court to grant the motion only if “there can be but one reasonable conclusion,” “mirrors” the
motion for summary judgment. United Food Commercial Workers Union Local 700 v. Kroger
Co., 132 F. Supp. 709, 711(N.D. Ind. 2001). In deciding a directed verdict motion, the court
must examine the evidence presented at trial and not weigh the evidence but draw all factual
inferences in favor of the non-moving party. Lytle v. Household Manuf., Inc, 494 U.S. 545, 554
(1990).

The Village contends that judgment was appropriate on all of Mehringer’s claims because
the evidence does not show that Monikemeyer’s harassment was “inspired by or based upon her
gender as required under Title VII.” Rather, the Village asserts that, even construing the
evidence in her favor, the testimony presented at trial leads to only one conclusion — that
Monikemeyer’s harassment was based upon animosity stemming not from Mehringer’s gender
but on their prior failed relationship and/or a desire to rekindle their relationship. In response,
Mehringer contends that the fact she and Monikemeyer had a prior romantic relationship does not
preclude her from bringing a claim for sexual harassment.

After reviewing the relevant case law, this Court finds while a prior romantic relationship
does not preclude a plaintiff from bringing a sexual harassment claim based on conduct by the
former girl/boyfriend, Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986), the plaintiff must
still show that the harassment was based on gender and not based upon animosity stemming from

the prior “failed relationship.” Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164,

1168 (7th Cir. 1996). See also Huenschen y. Dept. of Health and Social Servs., 716 F.2d 1167,

1171 (7th Cir. 1983); Succar v. Dade Co. Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000);

Kaminski y. Freight-A-Ranger, 2002 WL 31174461, at *4-5 (N.D. IIL. Sept. 30, 2002).



Additionally, the Court finds that the following entries are either vague and/or

unnecessary:

* No. 13 Miscellancous phone calls regarding Charge of Discrimination 3
+ No. 61 Verify date of complaint 4

* No. 69 Miscellaneous phone calls 4

* No. 72 Miscellaneous phone calls regarding EEOC .3

* No. 74 Review file to verify service .2

* No. 77 Review file .2

* No. 78 Review file for current status .2

* No. 542 Review file regarding status hearing . 2

Because the above entries are so vague as to make it impossible for the Court to determine what
value they added to the case, if any, the Court will subtract 2.2 hours from the total amount
billed.

In conclusion, the Court will subtract 50.2 from the 1,210 hours which the Best Firm
billed, which results in 1,159.8 hours of compensable time, which multiplied by $250 per hour
equals $289,950 in attorneys’ fees.

B. Costs

The Best Firm additionally seeks to recover $34,307.02 in costs. The Village objects to
$1,435.34 in copying charges, $2,453.74 in lodging charges during the trial, and several other
expenses which it contends are vague and unreasonable.

Rule 54(d) provides that “{cJosts . . . shall be allowed as of course to the prevailing party
unless the court otherwise directs.” Fed. R. Civ. P. 54(d). Recoverable costs include: (1) fees of
the clerk; (2) fees for transcripts; (3) fees for printing and witnesses; (4) fees for copies of papers
necessarily obtained for use in the case; (5) docket fees; and (6) compensation of court appointed
experts and interpreters. 28 U.S.C. § 1920. Rule 54(d) creates a strong presumption favoring the

award of costs to the prevailing party. Weeks v. Samsung Heavy Indus. Co., Ltd, 126 F.3d 926,

21


CONCLUSION
For the foregoing reasons, this Court:

* Grants the Defendant Village of Bloomingdale’s Motion for Summary Judgment
and Motion for Directed Verdict as to Count I of the Amended Complaint;

* Grants the Defendant Village of Bloomingdale’s Motion to Strike the Punitive
Damages Award;

* Grants in part and denies in part Plaintiff Shelly Mehringer’s Post-Trial Fee
Petition and taxes the Village $289,950 in attorneys’ fees and $29,412.94 in costs;
and

* Denies Mehringer’s Petition for Front Pay Damages.

It is so ordered.

ENTER:

BLANCHE M. MANNING
U.S. DISTRICT COURT JUDGE

pare: SUN 2 6 2003

ns OH,

eS !
in can

27


“attempt to ruin her weekend” and “breakup [her] marriage to Ray.” (Id. at 103.) Monikemeyer
also told her that he knew where she lived after he spent several hours over the weekend
searching for her home. (Id. at 103-04.) Although disturbed by this conduct, Mehringer testified
that she “thought it was an issue outside of work that she could handle on her own.” (Id, at 104.)

Unfortunately for Mehringer, Monikemeyer’s conduct only grew worse. He began
following her around the office and calling her extension at work and telling her that “we
definitely belong together. He couldn’t imagine being with anybody else. He no longer
understood why I stayed with Ray, and if I would just meet with him one more time, he could
show me why it was that I needed to be with him.” (Id, at 105-06.) He also began to follow
Mehringer after work in his car. (Id.)

The harassing conduct apparently came to a head in November of 1999. Monikemeyer
began to constantly follow her around at work, and when she again rebuffed his romantic
proposals, he began threatening her, making obscene gestures, and using profanity, including
calling her a “f-ing bitch.” (Id, at 112, 123-25.) Finally, Mehringer reported these actions to her
immediate supervisor and to Monikemeyer’s boss. Unfortunately, Monikemeyer’s conduct
continued, and therefore, Mehringer continued to make complaints. Contrary to the Village’s
written policy, however, the supervisors did not issue Monikemeyer a written warning or conduct
an official investigation. Instead, they referred Mehringer and Monikemeyer to the Employee
Assistance Program (“EAP”) to resolve the problem.

The EAP mediation, however, did not resolve the situation and Monikemeyer’s conduct
persisted. To make matters worse, Mehringer’s 2000 review was lowered one point because
“[u)nfortunately, there is a tense atmosphere in the Village services Department affecting the

normal assignment of work. This matter does involve Shelly and needs to be rectified in the near


be forfeited, if not asserted in a timely manner, or waived.” Id.

Similarly, in Niebur v. Town of Cicero, 212 F. Supp. 2d 790, 799 (N.D. Ill. 2002), a
former employee brought a section 1983 action against a city and its administrators seeking
compensatory and punitive damages. During the jury instruction conference, the mayor of the
city contended that she was entitled to statutory immunity under Illinois law because her alleged
improper actions were performed in her official capacity. Id. 819. The court, however, refused
to allow the mayor to assert the defense of statutory immunity because it was waived by not
being raised until the submission of the jury instructions. Id. According to the court, statutory
immunity is an affirmative defense under Rule 8(c), which should have been raised in the
answer. Id. at 20. The court noted that it had the discretion under Rule 15(a) to allow the
defendant to amend its answer to include the affirmative defense. Id. The court, however,
declined to do so because it found that the defense was “reasonably apparent” long before the
beginning of trial and that it would be improper to allow the defendant to “ambush” the plaintiff
with an unexpected defense on the eve of trial. Id.

Accordingly, this Court finds that immunity to punitive damages is an affirmative defense
which must be timely raised by the defendant. This, however, is not the end of the inquiry. The
Court must now determine whether the Village waived this defense by not asserting it in its
answer.

In a typical civil rights action against a governmental entity, a plaintiff specifically
requests punitive damages against a municipality in its prayer for relief. The government entity,
alerted by the specific request, then moves to timely strike the request for punitive damages,
which the court grants as a matter of course because under City of Newport “[mJunicipalities are

immune from punitive damages under the civil rights laws.” Burns v. Ciniplex Odenon, 1996

14


Mebringer specifically requested punitive damages, in the Pretrial Order, the Village timely
objected to this request.

Moreover, even if the Court found that the facts alleged in the Complaint and Amended
Complaint required the Village to plead an affirmative defense or object to punitive damages,
Rule 15(a) vests this Court with discretion to allow Bloomington to amend its answer to assert an
affirmative defense of immunity. See Sterling v. Riddle, 2000 WL 198440, at *4 (N.D. Ill. Feb.
11, 2000) (a defendant may “belatedly” assert affirmative defenses in an amended answer if it
meets the requirements of Rule 15(a)). Rule 15(a) provides that “leave shall be freely given
when justice so requires.” Courts have interpreted Rule 15(a) to permit litigants to “freely
amend{] or constructively amend[] [pleadings] as the case develops, as long as amendments do
not unfairly surprise or prejudice the defendant.” Umar v. Johnson, 173 F.R.D. 494, 503 (N.D.
Ill. 1997). “As arule,” the Seventh Circuit allows a defendant to amend its answer to assert
additional affirmative defenses if the plaintiff had “adequate notice [of the affirmative defenses]
and had adequate opportunity to respond to it despite the defendant’s tardy assertion.” Jackson v.
Rockford Hous. Auth., 213 F.3d 389, 392-93 (7th Cir. 2000). Rule 15(a), however, is not
without limitation. An amendment may be denied if there is “undue delay, bad faith or dilatory
motive on the part of the movant, . . . [or] undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182

(1962). See also Jackson, 213 F.3d at 392-93 (amendment of an answer should not be allowed if

it will cause the plaintiff “undue surprise or prejudice”).
Here, Mehringer’s only argument that the Village was barred from asserting its
affirmative defense of immunity is that it was not timely filed. As discussed above, however,

simply because the motion to amend is untimely does not mean that it is precluded. Mehringer

16


written policy prohibiting sexual harassment, which Mehringer received before she started
working. This policy states “all allegations of [sexual harassment] will be thoroughly
investigated, promptly and as confidentially as possible.” Employees are instructed to report any
perceived sexual harassment to their department head, who “shall promptly, but thoroughly,
investigate the complaint,” and “shall immediately notify the Village Administrator in a
confidential manner.” Within ten working days of receiving the employee’s complaint, the
department head is required to complete an investigation and make a written reply to the
employee.

During her employment with the Village, Mehringer had a romantic relationship with
James Monikemeyer, who also worked for Bloomington, as an administrative assistant for
Michael Marchi, the director of the Department of Village Services. Marchi was also the person
to whom Mehringer’s immediate supervisor, Robert Prohaska, reported.

Mehringer’s relationship with Monikemeyer lasted a total of two months, a month in late
1993 or early 1994 and a month in the fall of 1997. Mehringer testified that she ended the
relationship with Monikemeyer in 1997 because she became engaged to marry Ray Mehringer.
According to Mehringer, Monikemeyer became very upset upon hearing this news. She testified
that he told her that they “belonged together” and that she “should be marrying him not Ray.”
(Tr. 92-93.)

After ending their relationship, Mehringer testified that Monikemeyer began a campaign
of harassment, which became more aggressive over time, to win her back. At first, according to
Mehringer, Monikemeyer simply expressed his desire to rekindle their relationship and asked
whether there “was any chance that [they] could get back together.” (Id. at 101.) Monikemeyer’s

conduct, however, escalated when on Valentines Day of 1999, he sent flowers to her home, in an



to front pay only until such time that the employee can reasonably be expected to have moved on
to similar or superior employment.” Williams, 137 F.3d at 954.

Although speculative in nature, the longer the period of time for which a front pay award
is sought, the more speculative it becomes. McKnight v. General Motors Corp., 973 F.2d 1366,
1372 (7th Cir.1992). See also Williams v. Pharmacia Opthalmics, Inc., 926 F. Supp. 791, 796
(N.D. Ind.1996) (“A [front pay] remedy must be based on events more likely than not to occur,
and the existence of future uncertainties have led courts to act cautiously when considering
awards of front pay for lengthy periods”), affd, 137 F.3d 944 (7th Cir.1998). Front pay is “not
intended to insure a plaintiff's future financial success.” McKnight, 973 F.2d at 1371. Instead,
“[djamages should ordinarily extend only to the date upon which 'the sting’ of any discriminatory
conduct has ended.” Id.

Here, Mehringer seeks front pay damages in the amount of: (1) $1,068,262 for lost wages
and benefits that she would have earned during the next 26 years at the Village if she would not
have been constructively discharged (assuming she would have worked until 60 years of age);
and (2) $598,500 in lost pension benefits (discounted for present value) she would have earned
from retirement (age 60) until age 81.

After examining the above law and the facts of this case, this Court finds that the instant
request for front pay damages in the above amounts is unreasonable. Contrary to the Seventh
Circuit’s succinct pronouncement, that front pay is “not intended to insure a plaintiff's future
financial success,” McKnight, 973 F.2d at 1371, Mehringer, who left the Village at the age of 34
years of age and has not actively sought work other than a brief stint as a secretary before she
gave birth to her first child, seeks front pay for the next 47 years of her life. Moreover, she has

failed to offer any competent evidence to show that she suffered any lasting injuries from the

25



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SHELLY MEHRINGER, )
)
Plaintiff, )
) Hon. Blanche M. Manning
v. )
) 00 C 7095 DOCKETED
VILLAGE OF BLOOMINGDALE ) JU
) N 2 7 2003
Defendant. )
MEMORANDUM AND ORDER

Plaintiff Shelly Mehringer brought this action against Defendant Village of Bloomingdale
(“Bloomingdale” or “the Village”) pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et seq., alleging hostile environment sexual harassment, retaliation, and sexual
discrimination. After a jury trial, a verdict was retumed in favor of Mehringer on all counts and
awarded her $50,000 in compensatory damages and $750,000 in punitive damages. The present
matter comes before the Court on Bloomingdale’s Motion for Summary Judgment, Motion for
Directed Verdict, and Motion to Strike the Punitive Damages Award and Mehringer’s Post-Trial
Fee Petition and Petition for Front Pay Damages.'

BACKGROUND?

Bloomingdale employed Mehringer as a secretary for the Department of Village Services

from July 1988 to March 10, 2000. Except for her final work review, she performed her job in

accordance with the expectations of her employer throughout that period. Bloomingdale has a

1 The Motion for Summary Judgment, which was taken with the case, and the Motion for a

Directed Verdict were ruled on at trial with a written tuling to follow.

2 The facts set forth in this background section are taken from the parties’ Agreed
Statement of Uncontested Facts and the testimony presented at trial.



because: (A) section 1981a(b)(1) does not permit the award of punitive damages against a
government entity, and therefore, the Village did not need to raise it as an affirmative defense;
and (B) even if section 1981a(b)(1) is not an absolute bar to punitive damages, Mehringer did not
seek punitive damages in her Amended Complaint, so Bloomingdale did not waive its right to
assert immunity by not asserting it in its answer. The Court will discuss these contentions in
turn.

Under section 1981a(b)(1), a plaintiff in a Title VII action may recover punitive damages.
EEOC v. Waffle House, Inc., 534 USS. 279, 287 (2002). Specifically, section 1981a(b)(1)
provides that: “[a] complaining party may recover punitive damages . . . against a respondent
(other than a government, government agency, or political subdivision) if the complaining party
demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices
with malice or with reckless indifference to the federally protected rights of an aggrieved
individual.”

In arguing whether section 1981a is a complete bar to punitive damages or simply an

immunity defense which may be waived, both parties rely on the Supreme Court’s seminal

decision in City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). The plaintiff in City of
Newport brought a section 1983 action against the city seeking compensatory and punitive
damages. Id, at 252-53. Without objection, the district court gave the jury a punitive damages
instruction, resulting in an award of $200,000 in punitive damages against the city. Id.
Reversing the decisions of the trial court and circuit court not to strike the award, the Supreme
Court, after carefully considering the history of governmental immunity and the passage of
section 1983, held that “a municipality is immune from punitive damages under 42 USC. §

1983.” Id. at 271. In arriving at this holding, the court did not determine that section 1983 was a

12



WL 501742, at *12 (N.D. Ill. Sept. 3, 1996)(striking request for punitive damages against a city

under City of Newport); Adams v. City of Chicago, 865 F. Supp. 445, 447 (N.D. Ill.

1994)(same); Gamboa v. Washington, 1987 WL 11376, at *4 (N.D. Ill. May 19, 1987)(same).

Here, in contrast to the usual civil rights case seeking punitive damages against a
municipality, Mehringer did not specifically request punitive damages against the Village in its
prayer for relief in either its Complaint or Amended Complaint. Therefore, because Mehringer
did not specifically request punitive damages, Bloomingdale contends that it was not required to
raise section 1981a immunity as an affirmative defense.

Mehringer contends that although it did not specifically request punitive damages in its
prayer for relief, the Village was on notice that it was seeking punitive damages because its
Complaint and Amended Complaint alleged that Bloomingdale’s actions were “willful, wanton,
malicious, outrageous and in total disregard and reckless indifference to Mehringer’s civil rights”
and sought damages “and other further relief as the Court deems just and appropriate.”

A prayer for relief is governed by Rule 8(a)(3), which requires that a plaintiff must make
“a demand for judgment for the relief [it] seeks.” The demand for judgment, however, is not
considered part of the plaintiffs claim for relief and the failure to request specific relief will not
bar that relief if it is supported by allegations in the body of the complaint. See Wright & Miller,

Federal Practice and Procedure: Civil 2d §1255 (1990).

Here, although Mehringer’s Complaint and Amended Complaint tracked the language of
section 1981a, it did not specifically request an award of punitive damages. Given the long-
standing rule that municipalities are immune from punitive damages in civil rights actions, the
Court is not willing to punish the Village for not raising the affirmative defense of immunity

where such a request was not specifically requested in the complaint. Indeed, the first time

15