Plaintiff is correct. An employee who seeks “lost wages for
the period of discrimination has the initial burden of establishing
the amount of damages. Once the amount sustained as damages had
been established, the burden shifts to the employer to prove, as an
affirmative defense, that the employee failed to mitigate those

damages.” Fleming v. County of Kane, 898 F.2d 553, 560 (7th Cir.

1990). During the trial, Plaintiff established the amount of lost
wages as $9,314.48. Defendants did not prove, or even raise the
issue, of the failure to mitigate damages at trial. Thus,

Defendants have waived their right to assert it now. See Fsp. R.
Civ. P. 8(c). Accordingly, Plaintiff’s Motion is granted as to the
lost wages, and the Court reinstates Plaintiff’s lost wages in the
amount of $9,314.48.
III. CONCLUSION

For the reasons stated herein, the Defendants’ Motion is
DENIED. Plaintiff’s Motion is GRANTED with respect to the
reduction in lost wages, and DENIED as individuality of the
judgment on Counts I through III. As a result, the total monetary
judgment in favor of Plaintiff is $359,314.48.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
—_—_ United States District Court

Dated: ZL 2


Further, even if the Court improperly allowed such testimony,
it was not a harmful error. “A harmful error results only if the
error had a ‘substantial and injurious effect or influence’ on the
jury’s verdict.” United States v. Hanson, 994 F.2d 403, 407 (7th
Cir. 1993) (citation omitted). Here, the four-day trial was replete
with testimony regarding Defendants’ offensive sexual statements
and actions unrelated to the ethnic statements. For example,
Plaintiff testified as follows: Defendants said “Good morning,
Jennifer. Why don’t you come over to my office and sit on my
face.” (Tr. Trans. at 70); “he would tell me that he wanted to lick
me and he wanted to lick me like an ice cream cone, he wanted to
lick me like a birthday cake. He told me that he wanted to have
sex with me.” (Id.); “he would sit there and look at me, and he
would make these grunting, mumbling, sucking noises” (Id. at 74);
“he would put his hand on my butt . .. or he would put his hand on
my leg, and he would run it up my leg to lift my skirt” (Id.); “he
pin[ned] me up against the wall, and he proceeded to kiss me” (Id.
at 77); and “he would put his hand on my shoulder, my right knee
and my right shoulder, and rub it.” (Id. at 64).

The determination of guilt is “commonly the culmination of a
trial which includes testimony of witnesses, argument of counsel,
receipt of evidence, {and] instruction of jury by the judge.” See
McCormick v. United States, 500 U.S. 257, 288 (1991). Here,

Plaintiff presented substantial evidence regarding Defendants’


and the award does not appear to be a “product of the jury’s
fevered imaginings or personai vendetta.” U.S. EEOC, 55 F.3d at
1285.

The Court next addresses Defendants’ contention that the
$200,000 award is higher than is typical for “emotional distress”
cases. Here, the Court notes that the compensatory damages were
not only for emotional distress, but also for loss of dignity
humiliation, and pain and suffering for assault, battery, and IIED.
While the average damages “awards range[] from a low of $500 to a
high of over $50,000” for embarrassment, humiliation, emotional
distress in the Seventh Circuit, see Webb v. City of Chester, 813
F.2d 824, 837 (7th Cir. 1987), awards of $200,000 and greater have
been permitted when warranted. See, e.g., Neal v. Honeywell, Inc.,
191 F.3d 827 (7th Cir. 1999) ($200,000 for emotional distress);
Spina v. Forest Pres. Dist., 207 F. Supp. 2d 764, 773 (N.D. Ill.
2002) ($300,000 in compensatory damages); Naeem v. McKesson Drub Co.
Inc., No. 95-5425, 2002 WL 975315 (N.D. Ill. May 1, 2002) ($240,000
pain and suffering). Defendants have failed to show that $200,000
for emotional distress, loss of dignity, humiliation, and pain and
suffering is out of line with other cases with allegations of
repeated physical and verbal harassment by multiple individuals who
are in positions of power.

Accordingly, the motion for a new trial on the issue of

damages or remittitur of compensatory damages is denied.

- 10 -


elicited by defendants themselves on cross
examination!

(Pl. Resp. Br. at 4).

The Court agrees with Plaintiff. Yonan said she thought
Plaintiff was depressed in response to cross-examination questions
posed by Defendants’ counsel. (Tr. at 303-09). Defendants cannot
now, in good faith, seek a new trial on the grounds that this
testimony was improperly admitted when they themselves asked the
questions on cross-examination that elicited the testimony. The
Court additionally notes that a motion in limine ruling is not
absolute and can be altered by the Court as the case unfolds. See
Luce v. United States, 469 U.S. 38, 41-42 (1984).

Further, even if erroneously admitted, Yonan’s lay testimony
concerning her friend’s emotional state does not warrant a new
trial. Plaintiff submitted sufficient testimony independent of
these comments for the jury to properly determine whether the
Defendants sexually harassed Plaintiff. See Williams, 137 F.3d at
951. Plaintiff herself testified that as a result of the
Defendants’ actions, she gained weight, lost sleep, felt
humiliated, and become depressed and withdrawn from her family. A
new trial is not warranted on this basis.

Cc. Re-instruction of Jurors

Finally, Defendants argue that the Court erroneously re-
instructed the jury that it “must” impose punitive damages. This
argument has no merit and can be easily dismissed. The jury sent

-7-


offensive actions independent of the contested testimony. The jury
had sufficient evidence in which to base their verdict on
Plaintiff's claims. See Williams v. Pharmacia, Inc., 137 F.3d 944,
951 (7th Cir. 1998) (finding harmless error when “there was
sufficient evidence independent of the [improperly admitted]
testimony upon which the jury could rely in finding [Defendant
liable for sex discrimination.”). The Court concludes that this
testimony would not have substantially affected the jury’s ultimate
decision, and does not warrant a new trial.
B. Motion in Limine
Defendants also argue that the Court erred by allowing

testimony prohibited by Defendants’ first motion in limine, which
precluded lay witness testimony relating to Plaintiff’s medical,
emotional, or psychological conditions. Yonia Yonan, Plaintiff’s
friend, testified that Plaintiff -- based on her personal opinion
-- was depressed and acting differently beginning in 2000.
Plaintiff responds that the testimony now objected to was elicited
by Defendants when seeking her personal observations of Plaintiff’s
demeanor. Plaintiff argues:

Defendants therefore have waived any post

trial arguments by asking the very questions

at trial that led to answers given by Ms.

Yonan of which they now complain. Ms. Yonan

did not testify to any medical diagnosis of

the plaintiff on direct examination nor do

defendants complain about any answer given by

Ms. Yonan to plaintiff's attorney.
Significantly, Ms. Yonan’s testimony... was


Defendants argue that the $200,000 compensatory award is
excessive and not supported by the evidence presented. Defendants
argue that Plaintiff introduced sparse evidence relating to her
problems from the alleged battery, assault, and emotional distress
claims. Beata Blaszczyk, Plaintiff's friend, testified that she
and Plaintiff went out to dinner as often as four nights a week,
but Plaintiff never mentioned that she had been sexually harassed.
(Ex. C at 45-47). Additionally, Plaintiff did not contact any
medical professionals regarding her alleged conditions and her
mother stated that “{s]he’s not suffering over anything to go toa
doctor.” (Tr. Trans. at 118, 338).

After a review of the record, the Court concludes that
$200,000 is not “monstrously excessive” and is rationally related
to the evidence presented. This is not a case of an isolated
comment or action. Plaintiff testified that Defendants, who each
held positions of power in the Bank, physically and verbally
harassed her on repeated occasions. Plaintiff testified that her
personality and demeanor changed: she gained weight, she had
sleepless nights, and she withdrew from family and friends.
Although Plaintiff did not seek medical assistance for her
depression, “[i]t is well-settled that Title VII plaintiffs can
prove emotional injury by testimony without medical support.”
David v. Caterpillar, Inc., 185 F.Supp.2d 918, 923 (C.D. Ill.

2002). The jury had substantial evidence to base its verdict on


FOR THE NORTHERN DISTRICT OF ILLINOIS

IN THE UNITED STATES DISTRICT courf~ / L E D

EASTERN DIVISION

JENNIFER FARFARAS JUD) me ; I 20085
' GE HARRY
Plaintiff, vs. OISTICT CUR NMEBER
v. Case No. 01 C 8720
CITIZENS BANK & TRUST CO. OF Hon. Harry D. Leinenweber
CHICAGO, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jennifer Farfaras sued Defendants for battery
{Count I), intentional infliction of emotional distress
(“IIED’) (Count II), assault (Count III), sexual harassment
(Count IV), and sexual discrimination (Count V). Following a four-
day jury trial in this Court, the jury found Citizens Bank & Trust
(the “Bank”) liable on Count IV, Robert Michael liable on Counts II
through IV, George Michael liable on Counts I through IV, and
Nicholas Tanglis liable on Counts ITI and III.

For Counts I through III, the jury awarded Plaintiff a total
of $300,000: $100,000 for emotional distress, loss of dignity, or
humiliation; $100,000 for pain and suffering; and $100,000 in
punitive damages. Defendants contest the amount of the award, and
Plaintiff asserts that the $300,000 verdict should be against each
Defendant individually, totaling $900,000.

For Count IV, the jury awarded Plaintiff $200,000 in

compensatory damages for humiliation, emotional distress, and loss


exists between the compensatory and punitive damages awarded here.
Finally, the $100,000 award comports with other Seventh Circuit
case precedent. See, e.g., U.S. EEOC, 55 F.3d at 1287 ($150,000
punitive damage award upheld in disability discrimination claim);
Williamson v. Handy Button Mach., 817 F.2d 1290, 1296 (7th Cir
1987) ($100,000 punitive damage award upheld in race discrimination
suit). The jury’s punitive damages award here does not exceed what
is suitable and necessary to punish and deter Defendants from
engaging in similar behavior in the future. See U.S. EEOC, 55 F.3d
at 1287. Defendants’ Motion for a new trial on punitive damages or
for remittitur is denied.
II. PLAINTIFF’ S$ MOTION

Plaintiff contends the Court erred by not entering the
judgment on Counts I through III against each Defendant
individually, and by reducing her lost wages.

A. Judgment on Counts I through III

Plaintiff contends that the Court should have entered the
judgment on Counts I through III as separate judgments against each
Defendant, totaling $900,000. This argument lacks merit. The jury
verdict form itself demonstrates that jury intended to render a
collective award of $300,000, not separate awards of $300,000. It
expressly states: “If the jury finds in favor of the Plaintiff and
against at least one Defendant in Count I, II, or III, then

indicate below the jury’s determination as to the Plaintiff's

-12-


E. Remittitur of Punitive Damages

Defendants also argue that the evidentiary record and severity
of Defendants’ actions do not support the punitive damages award of
$100,000. Plaintiff argues that the Defendants deliberately acted
above the law, and used their substantial wealth and authoritative
positions to degrade, abuse and prey on young women.

The Court considers “three guideposts to determine whether a
punitive damage award is grossly excessive such that it offends due
process: (1) the degree of reprehensibility of defendant’s
conduct; (2) the disparity between the harm or potential harm
suffered by the plaintiff and his punitive damages award; and (3)
the difference between this remedy and the civil penalties
authorized or imposed in comparable cases.” Kapelanski v. Johnson,
390 F.3d 525, 534 (7th Cir. 2004) (citing BMW of N.A., Inc. v. Gore,
517 U.S. 559, 575 (1996)).

Defendants’ conduct in this case was reprehensible. There was
evidence of constant touching, staring, sexually explicit comments,
and sexual advances. See BMW, 517 U.S. at 576-77 (“[E])vidence that
a defendant has repeatedly engaged in prohibited conduct while
knowing or suspecting that it was unlawful would provide relevant
support for an argument that strong medicine is required to cure
the defendant's disrespect for the law.”). Defendants each held
positions of power in the Bank and used their authority to subject

Plaintiff to continuous harassment. Further, no large disparity

-1l1-


a note to the Court stating: “Please give us a definition of
Punitive Damages.” The Judge responded to the jury with a note
reading: “See attached instruction,” and re-tendered the original
instruction on punitive damages to the jury. Despite Defendants
contentions, any conversation regarding a new definition of
punitive damages was solely between counsel and the Court, and not
in the presence of the jury. The record clearly reflects that the
Court did not write down or provide a new definition of punitive
damages to the jury -- it merely referred them to the original
instruction. As a result, there was no erroneous re-instruction,
and no grounds for a new trial.
D. Remittitur of Compensatory Damages

The Seventh Amendment requires substantial deference to the
jury’s calculation of compensatory damages, but “the court must
also ensure that the award is supported by competent evidence.”
Ramsey v. Am. Air Filter Co., Inc., 772 F.2d 1303, 1313 (7th Cir.
1985). When reviewing a compensatory damages award, the Court
makes three inquiries: “whether the award is ‘monstrously
excessive’; whether there is no rational connection between the
award and the evidence, indicating that it is merely a product of
the jury’s fevered imaginings or personal vendettas, and whether
the award is roughly comparable to awards made in similar cases.”
U.S, EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1285 (7th

Cir. 1995).


A. After that he would tell me again about being
the most beautiful Greek woman that he’s ever
met . . . and he proceeded to tell me that he
knew that I liked him because he could see it
in my eyes and that he just wanted to let me
know that he liked me too. And he told me
that we needed to get to know each other
better, and we would do that when I was ready,
and I needed to approach him and ask him to
get to know each other better . . . And then
he told me that he had a boat

A. » . and I should consider spending the

weekend on his boat having sex under the stars
(Tr. Trans. 88-90).

Defendants argue that these ethnic statements were irrelevant
and prejudicial, and accordingly seek a new trial as to all
Defendants. Plaintiff responds that the references regarding
“plaintiff's national origin were made in reference to plaintiff’s
sex; to-wit: a Greek woman and was not prejudicial as there were
numerous reference to plaintiff’s national original though the
testimony of [others, including] Bank President Tanglis. . . .”
(Pl. Repl. at 3).

Here, the Court concludes that these statements were related
to Michael’s derogatory sexual comments -- he spoke of Plaintiff
being a beautiful Greek woman and wanting to have sex with her on
his boat. Accordingly, such comments were relevant to Plaintiff’s

sexual harassment claim and properly admitted.


courts will “overturn a jury verdict for the Plaintiff only
if... ‘no rational jury could have found for the plaintiff.’
Hasham v. Cal. State Bd. of Equalization, 200 F.3d 1035, 1043 (7th
Cir. 2000) (citation omitted). For the following reasons,
Defendants’ Motion is denied.
A. Alleged Prejudicial Testimony
Evidence is relevant if it has “any tendency to make the
existence of a fact that is of consequence to the determination of
the action more or less probable than it would be without the
evidence.” FED. R. Evip. 401. During the trial, Plaintiff
testified at length about disparaging and pejorative statements
that Defendants made to her, including comments Robert Michael said
about Greek and Jewish people. Defendants specifically object to
the following:
A. . . the first time he saw me he said that he

knew that I would be trouble for him but he

didn’t care because . . . And after he

concluded with that statement, he would begin

to tell me that I was the most beautiful Greek

girl he had ever seen and that normally Greek

women are not beautiful, they look like Greek

men, and he asked me why I’m proud of being
Greek, there’s really nothing to be proud of.

A. . . . ‘Why are Greeks so proud of Greek Town?
It’s just a bunch of little restaurants.’ He
said, ‘Now, the Magnificent Mile, now, the
Jews have something to be proud of.’


of reputation and dignity. Plaintiff also received $9,314.48 in
lost wages. Pursuant to 42 U.S.C. § 1981(b) (3) (a), the Court
reduced the award to $50,000, and on Defendants’ motion, reduced
the lost wages to $6,752.90.

Before the Court are Defendants’ Motion for a New Trial or
Remittitur of Damages (the “Defendants’ Motion”), and Plaintiff's
Motion to Alter or Amend the Judgment, for Judgment as a Matter of
Law, or Alternatively for a New Trial (the “Plaintiff’s Motion”).
Plaintiff also seeks attorneys’ fees and costs, which the Court
will address separately at a later date.

I. DEFENDANTS’ MOTION

Defendants argue that they are entitled to a new trial because
the Court: (1) allowed prejudicial testimony; (2) ignored a prior
motion in limine ruling; and (3) re-instructed jurors improperly.
Defendants also seek a new trial on the issue of damages, or
remittitur of the compensatory and punitive damages as excessive.

To grant a new trial, the verdict must be against the weight
of the evidence, damages must be excessive, or, for other reasons,
the trial must not have been fair to the moving party. See General
Foam Fabricators, Inc. v. Tenneco Chem., Inc., 695 F.2d 281, 288
(7th Cir. 1982). If damages are excessive, the proper remedy is
remittitur, not a new trial unless a plaintiff refuses to accept.
See Davis v. Consolidated Rail Corp. 788 F.2d 1260, 1263 (7th Cir.

1986). Witness credibility is crucial in discrimination cases, and


recoverable damages in each of the listed categories.” (Emphasis
added). The categories are: {1) emotional distress, loss of
dignity or humiliation; (2) pain and suffering; and (3) punitive
damages. Thus, the verdict form asked for a collective appraisal
of the total that Plaintiff should receive in the three separate
categories, and the jury accordingly awarded $100,000 per category,
for a total of $300,000. Accordingly, Plaintiff’s Motion is
denied.
B. Lost Wages

At trial, Plaintiff testified that she had $9,314.48 in lost
wages. In a post-trial hearing, Defendants argued that the Court
should reduce Plaintiff’s lost wages because Plaintiff testified at
trial that she pushed back her start date at her new job for three
weeks. As a result, the Court reduced Plaintiff’s lost wages.

In her Motion, Plaintiff contends that the Court erred by
reducing her lost wages from $9,314.48 to $6,752.90. Plaintiff
argues that Defendants improperly orally raised the reduction in
back pay as an issue for the first time post-trial. Therefore,
Defendants waived their right to assert the affirmative defense of
mitigation of damages. Defendants respond that the reduction in
back pay damages was not due to a failure to mitigate damages, but
rather to Plaintiff’s failure to establish that the Defendants’

conduct proximately caused all of her claimed lost wages.