In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 00-2696

RICHARD N. SHICK,

Plaintiff-Appellee,

v.

ILLINOIS DEPARTMENT OF HUMAN

SERVICES, AS SUCCESSOR TO THE

ILLINOIS DEPARTMENT OF PUBLIC AID,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 98-4353—G. Patrick Murphy, Chief Judge.

____________

ARGUED JUNE 5, 2001—DECIDED OCTOBER 9, 2002

____________

Before FLAUM, Chief Judge, and MANION and ROVNER,

Circuit Judges.

MANION, Circuit Judge. Richard Shick, armed with a

sawed-off shotgun, robbed a convenience store in Joliet,

Illinois. At the time, he was employed as a case worker

at the Illinois Department of Public Aid. After the robbery, he sued the Department, claiming that he was discriminated against because of his disabilities and his

sex, and that the discrimination and treatment resulting

from it caused him such trauma that he committed the
2 No. 00-2696

robbery. A jury concluded that the Department did discriminate against him because of his disabilities and sex,

and awarded him $5 million in damages and $166,700.00

in back pay. Because the Seventh Circuit ruled that the ADA

was not a valid abrogation of the states’ Eleventh Amendment immunity, the district court vacated the disability

judgment and then capped the judgment for sex discrimination at $300,000.00. The court then awarded $303,830.00

in front pay. The Department appeals. We reverse and remand.

I.

The evidence most favorable to Richard Shick, which is

what we must consider since he was the successful party

below, Sheehan v. Donlan Corp., 173 F.3d 1039, 1043-44 (7th

Cir. 1999), is taken primarily from his own testimony and

exhibits at trial. Shick, who was 52 at the time of trial, was

the youngest of eight children. He grew up in a poor but

stable family, graduated from high school, and after

a couple of short-term jobs, joined the Army in 1966, when

the Vietnam war was heating up. His first duty tour was

in Holland where he met his wife. They have been married

for over 30 years. He interrupted his service to acquire a

college degree in 1977. After a successful 20-year career

in the Army, where he received several commendations

and rose to the high enlisted rank of Master Sergeant, he

retired. He proceeded to work in various jobs, and in 1990

he was hired as a case worker in the Marshall, Illinois office of the State Department of Public Aid. While in the

Army, he incurred two disabilities: hearing loss due to his

proximity to a loud explosion, and permanent intestinal

bleeding from exposure to some disease while serving in

Italy. Despite these maladies, during his first four years

at the Department Shick performed his job well and en-
No. 00-2696 3

joyed his work. But on August 8, 1994, when Susan Yargus

was hired as administrator for the Marshall office, things

changed dramatically. As Shick testified at trial, “We just

seemed to butt heads all the time.” Apparently the tension

began right away. In a three-page single-spaced interoffice memo dated September 8, 1994, just one month after Yargus arrived, Shick had some critical observations

about Yargus’s policies on break-time, phone calls, work

priorities, office procedures, and Yargus’s lack of management experience. In the ensuing weeks and months, a

number of other memos and meetings occurred, many

challenging Yargus’s unfair treatment of Shick.

The unfairness that Shick referred to permeated the twoyear period that Yargus supervised the office prior to his

departure. Much of the controversy concerned her insensitivity to his disabilities, and her unequal application of

office rules concerning break-time, smoking and eating.

When Yargus arrived in August 1994, Shick’s disabilities

were multiple. In addition to the intestinal bleeding and

hearing loss, an injury to his left eye caused almost complete loss of vision and his other eye, originally the weakest, required additional surgery and significant medication. The eye condition caused serious pain and headaches. He also developed carpal tunnel syndrome in both

arms, which required operations and two leaves of absence,

each lasting several weeks. In addition, because of sleep

apnea, he needed rest, preferably a nap, during his halfhour lunch break. He was also tall and overweight and

preferred a particular chair. And he had occasional problems with his teeth. For each of these problems, he needed

some accommodation.

The medical situation that appeared to generate the

most conflict at the office was the intestinal disease that

caused internal bleeding and required frequent trips to
4 No. 00-2696

the bathroom. He claims that Yargus was suspicious of

his bathroom habits, and thought he was exaggerating the

need in order to create opportunities for additional breaktime when he could smoke. According to Shick, Yargus occasionally banged on the bathroom door because he was

in there too long and she insisted that he obtain a letter from

his doctor stating that the frequent bathroom use was

necessary due to his condition. Since he was the only man

in the office, Shick had exclusive use of the employee’s

men’s bathroom (although some of the women claimed

they snuck in there for occasional smoke breaks as well).

In order to mitigate his fatigue from sleep apnea, he had

a sleeping bag on the bathroom floor so he could nap during his lunch break. Yargus made him remove it.

When he needed batteries for the headset that amplified phone conversations, Yargus delayed replacing them

so he had to buy them himself. She also moved a copy

machine and printer near his desk, creating noise that

further interfered with his already-impaired hearing. She

had his favorite chair replaced with one that he had to

adjust many times per day. There was also evidence that

Yargus required Shick to administer his eye-drops at his

desk (as opposed to allowing him to use the restroom

for that purpose) because she suspected him of using

that time to also take a smoking break.

Although the office obtained an additional computer

terminal, at least partially to accommodate his carpal tunnel syndrome, Yargus assigned it to a female caseworker

who supposedly had seniority. Although Shick did take

extensive leaves for operations, one for an eye procedure

and two for carpal tunnel syndrome, he also requested

authorization for a number of one- or two-day leaves to

address other medical problems, but Yargus often resisted.

He also asserted that in addition to Yargus, those higher
No. 00-2696 5

in the chain of authority were also not sufficiently accommodating to his disability needs.

In addition to Yargus’s insensitivity to his medical

problems, Shick claims that she treated him less favorably than female caseworkers. She strictly enforced his

time for taking breaks, while she was much more lenient

with the women. In fact, Shick kept a detailed log of the

break-time for his female coworkers to prove to Yargus

that their breaks were longer, but Yargus refused to recognize it. She occasionally criticized him for eating at his

desk at inappropriate times, while the women were not

corrected for doing the same. And the women caseworkers

were each assigned their own (albeit small) offices, while

his desk was in the open near Yargus’s office where “she

could keep an eye on him.” She occasionally made other

negative comments about men. Shick attributed these negative feelings to the serious conflicts she encountered with

her husband in her recent divorce.

In 1992, before Yargus came on board, Shick began

working for an outside business selling metal buildings.

When Yargus arrived, she pressured him to cease all

business-related calls while at work, but when another female caseworker’s husband was out of town, she did

not object to that caseworker taking his calls.

As time passed, Shick’s medical problems increased,

especially the problems with his eyes and carpal tunnel

syndrome. At the same time he was becoming more and

more depressed about his job because of the way Yargus

treated him. Early in 1996 he wrote Janet Wilson, the Department’s EEO director, to complain about Yargus’s

discriminatory treatment. Wilson eventually called back, but

at the time Shick was on sick leave. When he returned,

Wilson was apparently on leave. He also claims that he

received the phone message late. When he did call in July he
6 No. 00-2696

discovered that Wilson had done very little to advance

the investigation of his complaints. At that point, he concluded that no one in State government was going to take

care of his problems.

On July 22, 1996, Shick sent a memo to Yargus stating, “I

have had a lot worse pain in my eye the last few days

and am taking large doses of pain medication so I can

work . . . . I may act a little spacy as both keep me sick in

my stomach also. I’ll try not to take any more time off.” He

testified that he made the “time off” promise “because

there was a lot of conflict. I was having a lot of time off

because of all of the operations and there was a lot of

conflict on whether it was needed or not.” Also, at this

point, Shick was having what he described as mental

problems. He sought help “higher in the chain of command” in the State to no avail. He “talked to the union because they had a program to help people that were having

mental problems.” He also talked to a local doctor about

it to get help. Nothing seemed to work. At that point he

was “terribly depressed” and was having “panic attacks”

which hurt his work. He was also “terribly angry” with

Yargus. So he decided to seek help at the EEOC office in

Chicago. He made an appointment and Yargus approved

his request for a leave of absence for Monday, August 26,

1996.

The night before his appointment he traveled to Joliet,

Illinois and stayed with his nephew. In the morning he

drove to the EEOC office in Chicago. He was on time for

his 9:00 a.m. appointment, but it was not until the afternoon that they finally met with him to discuss his case.

At that point he was crying, and although sympathetic,

the intake personnel said that it would be a year and a

half to two years before they could do anything for him.

With that he claims he was “devastated” because he hoped
No. 00-2696 7

1 Shick explained his reason for possessing the sawed-off shotgun. Years before, when he and his wife arrived home, they interrupted a burglary. Burglars were unloading some property

through a window. When discovered, the burglars escaped, but

in the process they dropped several items, including Shick’s shotgun. The burglars ran over the abandoned shotgun and bent

the barrel. Rather than discard the shotgun, Shick decided to

salvage it by cutting off the bent part of the barrel and the broken

part of the stock, leaving a sawed-off shotgun. He carried it in

his car because he needed protection for the occasions when

he carried large amounts of money. He sometimes carried as

much as $25,000 in cash generated by his building business. Also

he occasionally gambled, and he would have anywhere from

$20,000-$40,000 and he needed protection for that. Since he

stored the gun in the trunk of his car, it was with him when he

made the trip to Chicago.

for a resolution much sooner and he dreaded returning

to his job with Yargus in charge. He left Chicago. He was

taking heavy medications for both his depression and

his eye problems. He “cried all the way from Chicago and

ended up in Joliet” where his nephew lived. Although he

was familiar with the area, he got lost and could not find

his nephew’s house. At that point he recalls nothing until he found himself in jail. He has no recollection of

how he got there, but it turns out that he robbed a White

Hen convenience store of about $200 while brandishing

a sawed-off shotgun.1

 The psychiatrist who testified on

his behalf, Dr. Lyle Rossiter, originally examined Shick in

August 1997 at the request of his criminal defense attorney.

Dr. Rossiter indicated that for several months before the

robbery Shick suffered from a major depression. This “highly stressed-out state” was caused both by his job difficulties

as well as his many physical ailments. On the day of the

offense he experienced severe pain along with the depres-
8 No. 00-2696

sion, and was taking a combination of strong medications

that could have had a significant impact on his mental

condition. Dr. Rossiter opined that Shick “suffered a disassociative disorder on the day of the offense. He shut out,

in this case, access to the ordinary moral ideals and constraints of conscience that had regulated his conduct for 50

years.” Dr. Rossiter testified that the discriminatory treatment that Shick received from Yargus was in effect “the

straw that broke the camel’s back” and caused him to

commit the extraordinary act of robbing the convenience

store. In any event, Shick was arrested and eventually

convicted of armed robbery and sentenced to 10 years in

prison

In the meantime, immediately after the robbery, Shick

was suspended from his job. After a grievance with the

union failed to lift the suspension, Shick decided to resign so he could be replaced pending the long criminal

trial process (it took almost three years) rather than impose his work on coworkers during his absence.

Shick had been in prison for eight months when the trial

at hand took place. The jury found the Department liable

for disability and sex discrimination, and awarded Shick

$5 million “for past and future emotional pain, suffering,

inconvenience, and mental anguish.” It also assessed lost

past earnings in the amount of $106,700.00. Because the

Seventh Circuit in Erickson v. Board of Governors, 207 F.3d

945 (7th Cir. 2000), held the Americans with Disabilities

Act is not a valid abrogation of states’ Eleventh Amendment immunity, the district court vacated the ADA verdict.

The sex discrimination award was capped at $300,000. The

court awarded back pay, attorneys’ fees and $303,830

in front pay for the 12 years he could have worked until he

reached age 65, even though it included the time he will

spend serving his 10-year sentence. The court denied the
No. 00-2696 9

Department’s motion for a new trial, and the Department

appeals.

II.

On appeal the Department raises three issues. Primarily,

the Department charges that the district court abused its

discretion when it refused to order a new trial on Shick’s

Title VII count (sex discrimination). Because the jury heard

extensive evidence concerning disability-based discrimination, once the court dismissed the ADA count, given the

prejudicial effect of the inadmissible evidence, the Department claims the court should not have allowed the

verdict on sex discrimination to stand. And, the Department

further asserts, even if the Title VII verdict were to remain

in place, the district court also abused its discretion by

awarding Shick front pay for the time (ten years) he was

sentenced to prison. Finally, the Department requests a

new trial based upon a recent change in state law which

would estop Shick from claiming that his supervisor’s treatment caused him to commit the armed robbery.

A.

Regarding the first issue, essentially what the Department

wants is a new trial confined to the issue of sex discrimination. Although it is unusual, it is not unheard of for a jury

in a civil trial to render a verdict of liability on two separate

claims and then after trial for the district court to dismiss

one of the counts. Theoretically, if there is sufficient evidence for the jury to have found liability on the remaining count, in this case sex discrimination, the trial court has

the discretion to preserve the jury verdict even though

the jury heard significant and presumably prejudicial evi-
10 No. 00-2696

dence that would not be admissible under the surviving

count. Thus, the question before us is whether the trial court

abused its discretion by not awarding a new trial. Goodwin

v. MTD Products, Inc., 232 F.3d 600, 606 (7th Cir. 2000).

Under Federal Rule of Civil Procedure 59, in deciding

whether to grant a new trial the district court must determine whether “the verdict is against the weight of the

evidence, the damages are excessive [or insufficient], or

if for other reasons the trial was not fair to the moving

party.” Briggs v. Marshall, 93 F. 3d 355, 360 (7th Cir. 1996)

(quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 516

(7th Cir. 1993)). Clearly the question here is whether the

trial was unfair to the Department given the extensive and

damaging evidence on disability discrimination that has

likely been rendered inadmissible post-trial. A new trial

may be granted in the event of an error in the admission

of evidence in extraordinary situations. A court should

only grant a new trial if the improperly admitted evidence

had “a substantial influence over the jury,” and the result

reached was “inconsistent with substantial justice.” Agushi

v. Duerr, 196 F.3d 754, 759 (7th Cir. 1999) (citing Palmquist

v. Selvik, 111 F.3d 1332, 1339 (7th Cir. 1997)). See also

Fed.R.Civ.P. 61 (“No error in either the admission or the

exclusion of evidence . . . is ground for granting a new trial

or for setting aside a verdict or for vacating, modifying,

or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent

with substantial justice.”). Our cases hold that “evidentiary

errors satisfy this standard only if a significant chance

exists that they affected the outcome of the trial.” Hasham

v. California State Bd. of Equalization, 200 F.3d 1035, 1048

(7th Cir. 2000).

We considered a situation similar to the case at hand

in Cullin v. Olin Corp., 195 F.3d 317, 324-25 (7th Cir. 1999),
No. 00-2696 11

where, although the plaintiff had submitted enough evidence to support the jury’s verdict on his ADEA claim, we

vacated the decision and remanded because the trial court

had improperly admitted irrelevant and highly prejudicial

evidence. Id. In that case, the prejudicial evidence consisted of poor employee evaluation forms for the employee

who had replaced the plaintiff after the reduction in force

(RIF) that had resulted in the plaintiff’s dismissal. Id. Because the evaluations were completed post-RIF they played

no part in the decision to terminate the plaintiff and therefore were irrelevant. Because the irrelevant and highly

prejudicial evidence was discussed often throughout the

trial and was, in fact, some of the most compelling evidence

offered in support of the plaintiff’s case, the case was remanded for a new trial to be conducted without reference

to the replacement employee. Id. at 325 n.6.

In this case we face a similar issue in that the most

compelling evidence of Yargus’s abuse was not in fact due

to Shick’s sex, but because of his disabilities. This case

differs procedurally in that these evidentiary issues were

not raised through a Rule 403 motion at trial because at

the time, the prejudicial evidence was directly relevant

to the then valid claim under the ADA. However, once

Shick’s ADA claim was dismissed the Department raised

the issue of the effects of this prejudicial, and now largely

irrelevant, evidence through its motion for a new trial.

While unusual procedurally, this case is also unusual

because the plaintiff claimed and the jury apparently believed that Shick was driven to commit an armed robbery

because of the abusive treatment by his supervisor, Susan

Yargus. In effect, he was relying on a theory similar to one

made popular by comedian Flip Wilson: “The devil made

me do it.” After hearing all of the evidence, the jury initially awarded Shick five million dollars—this after he
12 No. 00-2696

2 To reiterate, Shick’s physical problems included: hearing loss

that required hearing aids; intestinal bleeding requiring frequent

trips to the bathroom as well as doctors’ appointments; sleep

apnea requiring noontime naps in the men’s bathroom; back

and teeth problems caused by a “crash in an elevator;” carpal

tunnel syndrom in both arms requiring absences for operations; obesity requiring his preference for a special chair; vision

problems—he was nearly blind in one eye, and had severe pain

in the other requiring medication and frequent treatment; depression and heavy medication at the time of the robbery.

had been convicted and had begun serving a 10-year prison sentence. This steep verdict demonstrates the extraordinary impact of the disability discrimination evidence

because, while it is clear that Shick and Yargus had an

acrimonious relationship (to say the least), the hostilities

were primarily caused by Yargus’s callous attitude about

Shick’s several disabilities—not his gender.

Admittedly, there was some evidence of sex discrimination, but a thorough review of the trial testimony and the

more than 100 exhibits presented discloses that most

of the evidence and testimony focused on Shick’s disabilities and Yargus’s treatment of Shick regarding those disabilities. For instance, Shick’s own testimony at trial is

replete with descriptions of how Yargus treated him in relation to his health problems.2

 As earlier noted, the most

frequent confrontations involved his intestinal bleeding

and her insensitivity to his bathroom needs. His hearing

problems were exacerbated when she placed his desk near

a noisy machine, and when she did not provide batteries

for his hearing aid. Yargus removed his sleeping bag

from the bathroom where he napped to remedy his sleep

apnea. She complained of his frequent absences for doctors’ appointments and extended leaves for eye and carpal

tunnel syndrome operations. He testified that his many
No. 00-2696 13

health problems, coupled with Yargus’s negative attitude

about his treatments and accommodation for these problems, caused him great stress and left him very depressed

and discouraged about his job.

Additionally, Shick’s medical expert, Dr. Rossiter, testified

about the circumstances that led up to Shick’s commission of the armed robbery, stating that Shick was suffering from a major depression for a number of months prior.

This “highly stressed-out state” was significantly caused by

his job circumstances as well as his “ongoing medical

conditions that were quite serious.” He described the “accumulated stress from these medical illnesses, [and] the

severe pain on the day of the offense.” He also described

the variety of medications prescribed, including some “that

can alter one’s state of consciousness, alter one’s state of

mind.” The doctor opined that Shick “suffered a disassociative [dis]order on the day of the offense. He shut out, in

this case, access to the ordinary moral ideals and constraints of conscience that had regulated his conduct for

50 years.” The doctor added that “the single factor that

distinguished his emotional state in 1996 from his emotional states in prior years, under different circumstances,

was the peculiar relationship between him and Susan

Yargus.” He described Shick’s “feelings of being helpless

and hopeless, despairing, and at the same time very driven by his own increasing anger, not just mild resentment

but rage, at her for the sense of unfairness.” In addition

to this testimony, of the 100-plus exhibits placed in evidence at trial, the vast majority concerned conflicts and

disputes regarding his various disabilities and their impact on him and his performance at the workplace.

Without question, there was some evidence, when taken

in the light most favorable to Shick, of sex discrimination.

Of the five employees in this particular office, Shick was
14 No. 00-2696

3 On appeal, the Department does not challenge the sufficiency

of the evidence as to the jury’s verdict on sex discrimination.

However, on remand, it may be that after all of the evidence

of disability discrimination falls out, the remaining evidence

fails to rise to the level of an adverse employment action, as

required by Title VII. See Traylor v. Brown, 295 F.3d 783 (7th Cir.

2002) (explaining that because Title VII only prohibits discrimination with respect to the “terms, conditions or privileges

of employment,” 42 U.S.C. § 2000e-2(a)(1), an employee must

suffer a materially adverse employment action to recover, and

summarizing the “adverse action” requirement). Similarly, it

may be that the evidence of sex discrimination fails to reach the

level necessary to constitute a constructive discharge. See Simpson

v. Borg-Warner Auto., Inc., 196 F.3d 873, 877 (7th Cir. 1999)

(summarizing case law in which an employer’s unpleasant

and embarrassing actions were found insufficient to support a

constructive discharge claim). Those issues are better left to

the district court on remand after the evidence of disability

discrimination is sorted out.

the only male. Before Yargus arrived, he was performing

his job satisfactorily and he liked the work that he was

doing. However, on September 8, 1994, a little over a

month after Yargus arrived, Shick sent her a three-pluspage memo that was confrontational and critical. Many

other memos followed back and forth, some complaining

about Yargus’s favorable treatment of the women over

him on things such as break time, eating at the desk, taking medications at the desk, and use of the telephone for

business and personal calls. But the record, including

the testimony and the exhibits, clearly demonstrates that

the occasions of sex discrimination are minuscule compared to the many conflicts involving his medical problems and disabilities.3

 Dr. Rossiter described the severe

depression and ultimate rage as resulting from Shick’s conflict with Yargus, and explained that he believed that this
No. 00-2696 15

drove Shick to commit the armed robbery. It is hard to

imagine how a jury would have accepted this extraordinary theory for which it initially awarded Shick five million

dollars, without the extensive testimony about the abusive treatment regarding his many ailments. Rather, the

jury had to be very sympathetic to Schick’s many maladies and his efforts and needs to cope with them. At the

same time, the jury had to be extremely irritated with what

it perceived to be Yargus’s insensitivity and even harsh

attitude about these many medical challenges. This reaction has everything to do with disability discrimination

and very little to do with sex discrimination.

While it is true that the trial judge has great discretion

in determining whether to grant a new trial, given the

overwhelming evidence of the abusive treatment regarding Shick’s disabilities and the prejudicial effect of this

evidence, the limited evidence of sex discrimination was

tainted beyond repair, absent a new trial. Moreover, given the jury’s initial damages award of five million dollars,

we must conclude that this evidence had “a substantial

influence over the jury.” Palmquist, 111 F.3d at 1339; see

also Agushi. 196 F.3d at 759. Accordingly, we conclude that

the district court abused its discretion in denying the Department a new trial on Shick’s sex discrimination claim

following its reversal of judgment on Shick’s ADA claim,

since most, if not all, of the evidence on disability discrimination became inadmissible.

B.

The trial court, having reached the conclusion that there

was no basis for granting a new trial, went on to award

Shick damages for sex discrimination. It capped the

award at the statutory ceiling of $300,000. The court also
16 No. 00-2696

awarded front pay in conjunction with the jury’s verdict on sex discrimination. The Department acknowledges

that if the jury found liability for sex discrimination, front

pay could be appropriate for the time between Shick’s resignation and his subsequent conviction and incarceration,

but claims that Shick is not entitled to front pay while he

is serving his prison sentence. The court recognized that

once in prison, Shick could not work so the Department

normally “shouldn’t have to pay for that,” but the court

also noted that Yargus’s treatment was “the reason he

went to prison in the first instance and lost his job.” Since

she drove “this poor fella [nuts] and the jury believed it,”

the district court awarded front pay in the amount of

$303,830.00, which covered the time until Shick would

reach age 65, including the time he will spend in prison.

Front pay is an appropriate remedy in Title VII cases

when reinstatement is not available or not advisable because of workplace incompatibility. Williams v. Pharmacia,

137 F.3d 944, 951 (7th Cir. 1998). As a substitute for reinstatement, front pay is designed to compensate discrimination victims for the reasonable time it would take to

find comparable employment elsewhere. Id. at 953-54. But

front pay is only designed to compensate a plaintiff from

the lost earnings from his old job for as long as he “may

have been expected to hold it.” Id. Thus, if the employee

obtains another job, those earnings are deducted from

front pay. Here Shick could not have spent any more time

with his employer due to his conviction, and obviously

there is no chance that Shick would find any work, much

less comparable work once he was incarcerated. Thus, a

front pay award encompassing prison time would be

inappropriate, as returning to his job would have been impossible for reasons apart from the strained relationship

that existed with his employer.
No. 00-2696 17

Moreover, the district court’s decision in awarding Shick

front pay is fundamentally flawed for another reason—as

a matter of law, the Department’s actions were not the

proximate cause of Shick’s conviction and incarceration.

Yet, the district court concluded that because the “jury

found that Plaintiff ’s criminal conviction was the proximate result of the wrongful conduct of Defendant’s agent,

Susan Yargus, . . .” it would not deny Shick front pay on

the basis of his conviction. Given the jury’s five million

dollar verdict, it seems clear that the jury held Yargus responsible for Shick robbing the White Hen, and his subsequent imprisonment. However, under general tort principles governing causation which apply equally to Title

VII, a plaintiff may only recover damages proximately

caused by the defendant’s conduct. See, e.g., Hamilton v.

V.E. Rodgers, 791 F.2d 439, 444 (5th Cir. 1986) (plaintiff’s

burden in Title VII case is to prove harassment proximately caused injury), abrogated on other grounds by

Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990). While generally the issue of proximate cause is a jury question, in

extreme circumstances, such as the one at bar, the question of proximate cause is an issue of law properly resolved by a court. See Suzik v. Sea-Land Corp., 89 F.3d 345,

350 (7th Cir. 1996); Collins v. American Optometric Assoc., 693

F.2d 636, 642 (7th Cir. 1983). In this case, as a matter of law,

Shick’s own act of using a sawed-off shotgun to rob a

convenience store constituted a superseding intervening

cause for his later conviction and incarceration. See Restatement of Torts (Second) § 440 (“A superseding cause is an

act of a third person or other force which by its intervention prevents the actor from being liable for harm to

another which his antecedent negligence is a substantial

factor in bringing about.”); Restatement of Torts (Second)

§ 441 (“An intervening force is one which actively operates

in producing harm to another after the actor’s negligent

act or omission has been committed.”); Prosser & Keeton
18 No. 00-2696

on Torts § 44 at 312 (defendant is not liable for damages

caused by intentional or criminal acts which no defendant could foresee). Cf. Hamilton, 791 F.3d 444 (plaintiff’s

estate failed to prove defendant’s harassment was the

proximate cause of the plaintiff’s death). Accordingly,

Shick cannot recover from the defendants for damages

resulting in his conviction and incarceration whether in

the form of front pay, pain and suffering, or emotional

distress. Moreover, the extent of emotional injury attributable to the defendant for Shick’s breakdown is questionable too, as Shick’s own expert testified that his mental

condition was caused by both Yargus’s conduct and his own

physical ailments, and Shick’s expert blamed some of

Shick’s mental condition on the medication he was taking,

testifying that the combination of strong medications

could have had a significant impact on his mental condition. See Merriweather v. Family Dollar Stores of Ind., Inc.,

103 F.3d 576, 580 (7th Cir. 1996) (where employer’s discriminatory action only partially responsible for emotional

harm, damages must be reduced accordingly). On remand,

these issues should be more fully explored, as well.

Finally, the Department asserts that a change in Illinois law since the trial should be applied retroactively,

thus requiring a new trial. In American Family Mutual

Insurance Co. v. Savickas, 739 N.E.2d 445 (Ill. 2000), the

Illinois Supreme Court held that a criminal conviction

may have a collateral estoppel effect in a civil case such

as this. Based on Savickas, the Department further argues

that Shick would have been barred from introducing

testimony from his expert to the effect that Yargus caused

Shick to commit the robbery. However, because we have

already ruled that the Department is entitled to a new trial

and that as a matter of law the Department cannot be liable for damages stemming from Shick’s conviction and

incarceration, and thus this evidence would be inadmis-
No. 00-2696 19

sible for that reason, we need not consider the impact of

Savickas in this case.

III.

After the jury initially awarded Shick five million dollars

for his claim against the Department of Human Services

for disability and sex discrimination, the district court

properly vacated the disability judgment but let stand

the judgment on sex discrimination. Because the extensive evidence on disability discrimination had a substantial influence on the jury, thus making the trial unfair to

the Department if the judgment on sex discrimination

was left intact, we vacate the judgment and remand for

a new trial consistent with the principles set forth in this

opinion. Rule 36 shall apply on remand.

ROVNER, Circuit Judge, dissenting. The civil trial in

this case progressed on the theory that the discrimination

at the workplace led to Shick’s mental illness and his

constructive discharge. According to the unrefuted expert

testimony, he experienced a dissociative disorder in which

he shut out access to the ordinary moral ideals and constraints of conscience that had regulated his conduct for

50 years. The trial testimony portrayed the robbery as an

act fundamentally inconsistent with Shick’s life prior to

that date, which included twenty years in the army during which time he received numerous commendations,

a thirty-year marriage, good work history, and no prior

history of any criminal action. The jury agreed that the dis-
20 No. 00-2696

crimination led to his mental illness and constructive discharge, returning separate verdict forms on disability discrimination and gender discrimination.

On appeal, IDHS stressed in its brief that it does not

contest the sufficiency of the evidence to support the verdict on gender discrimination. In fact, IDHS concedes

that the trial record supports the verdict and the damages on the gender discrimination claim. The majority’s

suggestion to the contrary in footnote 3 is therefore inconsistent with the views of the trial court and the parties

themselves, and the record supports their contention that

the verdict was supported by sufficient evidence.

IDHS sought a new trial not because the evidence of

gender discrimination was insufficient to support the

verdict, but because the evidence relating to the ADA

claim was, in retrospect, inadmissible and was unfairly

prejudicial. The trial court rejected this argument, quoting

IDHS’ own representations earlier that the evidence of

disability and gender discrimination were “inextricably

intertwined,” and therefore that the same evidence would

be introduced in a trial based solely on gender discrimination. We review a trial court’s denial of a new trial only

for abuse of discretion. Cefalu v. Village of Elk Grove, 211

F.3d 416, 424 (7th Cir. 2000). It is because of that highlydeferential standard of review that I am compelled to

dissent. We are not at liberty to second-guess the trial

court’s decision solely because we might have ruled otherwise. Without a doubt, this appears to be a bizarre verdict and damage award. But we were not there, we did

not view the witnesses as did the trial judge, and we are

not in the same position to assess the impact of the disability evidence on the trial as a whole. The jury and trial

court were there, and the trial court agreed with the jury

that the evidence was sufficient to prove gender discrim-
No. 00-2696 21

ination. The trial court also determined, from its unique

vantage point, that much of the damaging evidence would

have been admissible in a trial on gender discrimination alone, and therefore that a new trial was not warranted. On reviewing the record, I cannot conclude that

the trial court abused its discretion in that determination.

Although some evidence introduced at trial related solely

to the disability discrimination, there was substantial overlap in evidence for the two types of discrimination.

For instance, throughout the trial, Shick introduced

evidence that his use of time was closely scrutinized, and

that he received forms of discipline for violations that

were ignored when engaged in by the other employees,

all of whom were women. Testimony in relation to that

allegation included evidence regarding the close monitoring of his bathroom breaks. He asserted that his use of the

bathroom was necessitated by his disability, and thus the

testimony related to his disability discrimination claim. It

also was relevant, however, to his claim of gender discrimination, because his supervisor interpreted the bathroom breaks as an attempt to take extra smoking breaks,

but similar long breaks or use of the restroom for smoking

went unchecked for the female employees. In this and

many other instances, testimony was relevant to both allegations of discrimination. It is perhaps a concession to

that overlap that IDHS never sought to sever the two

claims in the initial trial, even though the potential prejudicial effect was present in that trial as well. The evidence on retrial of the gender discrimination claim would

largely track the evidence admitted in this trial. Viewing

the evidence as a whole, it simply was not an abuse of

discretion for the trial court to hold that the evidence

relating to the ADA claim was not so prejudicial as to

require a new trial. Because IDHS did not argue that the

front pay award was invalid based on the lack of proxi-
22 No. 00-2696

mate cause, I would not reach that issue given my views

on the request for a new trial, although I understand the

court’s desire to reach it in light of the remand where the

issue may arise again. I respectfully dissent.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-9-02