United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

 

 Submitted July 31, 2009∗

 Decided August 18, 2009

Before

FRANK H. EASTERBROOK, Chief Judge

JOEL M. FLAUM, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 08-4276 & 09-1197

ELIZABETH A. BRIGHT,

Plaintiff-Appellant, Cross-Appellee,

v.

HILL’S PET NUTRITION, INCORPORATED,

Defendant-Appellee, Cross-Appellant.

Appeals from the United 

States District Court for the 

Southern District of Indiana, 

Indianapolis Division.

No. 1:03-cv-1709-WTL-TAB

William T. Lawrence, Judge.

Order

During the first trial of this employment-discrimination case, the district judge 

excluded most of plaintiff’s evidence after ruling that the statute of limitations 

prevented plaintiff from referring to events more than 300 days before her charge of 

discrimination. The jury then returned a verdict for defendants. We reversed, holding 

that the evidence should have been admitted in light of National Railroad Passenger Corp. 

v. Morgan, 536 U.S. 101 (2002), because hostile working conditions at a single place of 

employment are a single unlawful practice. 510 F.3d 766 (7th Cir. 2007). We remanded 

 

∗ These successive appeals have been submitted to the original panel under Operating Procedure 6(b). 

After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. 

R. App. P. 34(a); Cir. R. 34(f).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
Nos. 08-4276 & 09-1197 Page 2

for a second trial.

Shortly before the new trial was to begin, the district court again ruled that most 

of plaintiff’s evidence could not be received. This time the court thought that the verdict 

in the first trial established the law of the case, except to the extent that it had been 

reversed. After examining plaintiff’s appellate briefs, the district court ruled that plaintiff 

had not presented any argument concerning what the district court styled four distinct 

claims: sex discrimination, constructive discharge, retaliation, and violations of the 

Family and Medical Leave Act. The only claim presented on appeal, the district court 

thought, was one for a hostile work environment, and the evidence at the second trial 

must be limited to that claim. After receiving evidence that had been curtailed in this 

fashion, the second jury returned a verdict for defendant.

We reverse a second time. Our first decision set aside the entire judgment; it did 

not affirm in part and reverse in part. The jury’s verdict was annulled; it has no 

continuing force. And the district court’s parsing of plaintiff’s contentions into five 

separate claims is unwarranted. A hostile work environment is actionable as sex 

discrimination; there are not distinct “claims” for hostile work environment and sex 

discrimination. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Oncale v. 

Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Constructive discharge likewise is 

not a distinct claim; it is a theory about how the sex discrimination (= work 

environment hostile because of the employee’s sex) caused harm (by forcing the 

employee to quit, in order to avoid additional injury).

Our prior opinion discussed only the sexually hostile work environment because 

that theory, coupled with the Supreme Court’s decision in Morgan, shows why there 

was just one unlawful practice. Employment-discrimination suits present a single “claim 

for relief” even if the plaintiff relies on multiple statutes. See, e.g., Herrmann v. Cencom 

Cable Associates, Inc., 999 F.2d 223 (7th Cir. 1993). Once we held that there is a single 

unlawful practice at issue in this lawsuit, the district court should not have tried to slice 

the plaintiff’s contentions into five claims, withholding four of them from the jury.

It is regrettable to try any suit three times, but here it is necessary. The judgment 

is reversed, and the case is remanded for a trial at which plaintiff must be allowed to 

present all of her legal theories and all of her evidence, dating back to the start of her 

employment, subject to Fed. R. Evid. 402 and 403. Because the defendant is no longer 

the prevailing party, it is unnecessary to address the cross-appeal.