### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-2045

D ETLEF S OMMERFIELD, Plaintiff-Appellee,

v.

L AWRENCE K NASIAK, Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division.

No. 08 C 3025 — Joan B. Gottschall, Judge

.

____________________

A RGUED F EBRUARY 19, 2020

— D ECIDED J ULY 23, 2020

____________________

Before F LAUM, R IPPLE , and W OOD , Circuit Judges

. W OOD, Circuit Judge . After experiencing virulent anti-Semitic abuse at the hands of Sergeant Lawrence Knasiak, Offi cer Detlef Sommer fi eld of the Chicago Police Department (CPD) fi led a lawsuit against Knasiak and the City of Chicagoin which he alleged discrimination, harassment, and retaliation based on his German national origin and his Jewish ethnicity. After the City was dismissed from the case, a jury returned a verdict for Sommer fi eld and awarded him $540,0002 No. 18-2045

in punitive damages; he also received a modest award representing pre-judgment interest for backpay and pension benefi ts he already had received. Knasiak has appealed, contending that he was entitled to judgment as a ma tt er of law, or at least a new trial, and that the court should have reduced the punitive-damage award. We recognize that this was a closely contested case, but in the end we fi nd no error in the district court’s decisions, and so we a ffi rm. I We recount the facts in the light most favorable to the jury’s verdict. Sommer fi eld was born and raised in Germany, where some of his family memb ers had died in concentration camps during the Holocaust. Atsome point he emigrated to the United States, se ttled in Chicago, and joined the CPD. His supervisor there was Sgt. Knasiak. For years, Sommer fi eld endured vicious anti-Semitic abuse from Knasiak. We prefer not to debase this opinion by repeating what Knasiak said: su ffi ce it to say that the vitriol invoked Hitler, the actions the Nazis took in the death camps, and regret that Jews today live in the United States. Although Sommer fi eld repeatedly pleaded with Knasiak to stop the harassment, Knasiak never let up. On March 13, 2004, Sommer fi eld’s girlfriend was taken to the emergency room after su ffering a severe allergic reaction to a medication. Sommer fi eld received permission from the police captain to go visit her in the hospital during his shift. When he returned, Knasiak said, “if you want to take care of your f**king Mexican girlfriend, you take time o fflike everybody else.” This was the last straw for Sommer fi eld; he responded by fi ling a formal complaint, known as a CR, or “complaint register,” to the internal a ff airs division about Knasiak’s o ffensive comment about his girlfriend and theNo. 18-2045 3

relentless harassment. Filing the CR against Knasiak was a drastic step: one CPD sergeant testi fi ed at trial that he had never heard of another o ffi cer fi ling a CR against a superior. On March 15, 2004, two days after fi ling his complaint, Sommer fi eld was riding in the passenger seat of a patrol car driven by another o ffi cer. A tt empting to refuel the car at a gas station, the driver discovered th at his gas card did not work. He suggested that, because Sommer fi eld lived in the area, they could go to Sommer fi eld’s house to retrieve his gas card. Sommer fi eld agreed, they drove to his house, and Sommerfi eld ran inside for a moment and retrieved the card. Sergeant Kelly, another police o ffi cer, was on Sommerfi eld’s street at the time Sommer fi eld went into his house. Kelly immediately called Knasiak, who ordered Sommer fi eld and the driver to meet him ba ck at the station in the commander’s o ffi ce. They complied. At the station, Knasiak had summoned four other superior o ffi cers to witness his discipline of Sommer fi eld. At trial, CPD o ffi cers testi fi ed that they had never heard of this happening before. Knasiak fi rst interrogated the driver, and then dismissed him and turned to Sommer fi eld. Knasiak accused Sommer fi eld of violating rules by failing to contact the dispatcher while he was retrieving the gas card. Knasiak then fi led a CR against Sommer fi eld alleging that he had been insubordin ate by leaving the car without contacting the dispatcher and recommending that Sommerfi eld be suspended. This was th e only time Knasiak had ever issued a CR, much less one withthe serious charge of insubordination. An apparently independent group of Department o ffi cials brie fl y investigated Knasiak’s complaint and suspended Sommer fi eld for fi ve days. This measure was unprecedented; in4 No. 18-2045

fact, the record showed, it wa s common practice in the Department not to bother the disp atchers for such a short errand. Sommer fi eld was the only person Knasiak ever disciplined for the relatively minor infraction of “failure to report location to dispatch.” The driver who suggest ed the brief stop receivedonly a reprimand. There were other apparent lapses in the investigation, too. The investigating sergeant failed to interview a secretary whom Knasiak told to leave the o ffi ce the night he disciplined Sommer fi eld, nor did the investigator interview two patrol o ffi cers who were si tting outside Knasiak’s o ffi ce at the time of the reprimand. Further, the report omi tt ed evidence that Knasiak had shou ted profanities at Sommer fi eld ashe disciplined him, relying instead exclusively on the statements of the o ffi cers Knasiak had brought into the o ffi ce, who insisted that it was Sommer fi eld, and not Knasiak, who had lost his temper.

Later Sommer fi eld was passed over for a promotion to the position of canine handler, ev en though he was rated “wellquali fi ed.” According to Department rules, in order to be eligible for that position, an o ffi cer could not have three or more complaints against him that resulted in suspension. The CPD’s canine coordinator testi fi ed that Sommer fi eld did notget the promotion because he had had exactly three suspensions in the preceding fi ve years, including the one that resulted from Knasiak’s recommendation. In 2006, Sommer fi eld fi led a lawsuit against the City of Chicago and Knasiak ( Sommer fi eld I). Because the statute of limitations had run on the only claim he raised against Knasiak, the court dismissed Knasiak from that case, which proceeded against only the City. Sommer fi eld won a jury verdict of $30,000. Still wishing to sue Knasiak, however,No. 18-2045 5

Sommer fi eld brought the present action ( Sommer fi eld II)against Knasiak and the City on May 23, 2008. In it, he complained that Knasiak had harassed him and discriminated against him on the basis of race, religion, and national origin, and had retaliated against him based on protected activities, and that the City was responsible for all this. The district court dismissed the claims against th e City with prejudice on February 26, 2009, on the ground that they duplicated those in Sommer fi eld I , but it permi tt ed the claims against Knasiak to proceed. A somewhat pared down version of that part of the case went to a jury trial. On July 24, 2014, the jury returned a verdict in Sommer fi eld’s favor for $540,000 in punitive damages and $0 in compensatory damages. At that point, before the district court entered fi nal judgment on the verdict, three years of post-trial litigation ensued. It was concerned primarily with Sommer fi eld’s e ff orts to adda belated indemnity claim against the City and to obtain prejudgment interest, and the e ff orts of the court to calculate (by the parties’ agreement) Sommer fi eld’s economic damages The district court entered its fi nal judgment in Sommer field II on May 12, 2017. It awarded Sommer fi eld a total of $548,703.96, which represented $540,000 in damages awarded by the jury and $8,703.96 in pre-judg ment interest. The district court also concluded that Sommer fi eld was entitled to another $54,315.24 in economic damages, but it o ff set that award by a voluntary payment in the same amount that the City had made to Sommer fi eld while the case was pending. On June 9, 2017, Knasiak fi led a timely motion for judgment as a ma tt er of law pursuant to Federal Rule of Civil Procedure 50(b), a Rule 59(a) motion for a new tria l, and a Rule 59(e) motion to alter or amend the judgment. The district court denied all three motions, and Knasiak now appeals.6 No. 18-2045

II Relying on Rule 50(b), Knasiak fi rst urges that it waswrong even to ask the jury to decide whether he was responsible for either of the adverse actions at issue. Knasiak focuses in both instances on Sommer fi eld’s evidence of causation: if no reasonable juror could conne ct Knasiak to those adverse actions, then his motion for judgment as a ma tt er of law should have been granted. The question is thus whether therewas enough evidence in the record to permit the jury to conclude that, for the suspension, the nominal actors (the investigating o ffi cers) were simply following Knasiak’s recommendations, and thus that no inte rvening actor insulated Knasiak from responsibility. See Schandelmeier-Bartels v. Chicago Park Dist. , 634 F.3d 372, 379 (7th Cir. 2011) (plainti ff must prove the “existence of a link between an employment decision made by an unbiased individual an d the impermissible bias of a non-decisionmaking co-worker.”) The second adverse action fl ows directly from the fi rst: had Sommer fi eld not received the CR for the gas-card stop, he would have been eligible for the canine position and would have received it. Knasiak urges that he was not the person who imposed Sommer fi eld’s suspension or denied him the promotion. This alone, he contends, was enough to preclude the jury from concluding that he was responsible for the adverse actions, because he did not “participate[] directly in the constitutional violation.” Hildebrandt v. Illinois Dep’t of Nat. Res. , 347 F.3d 1014, 1039 (7th Cir. 2003). But the question is not that simple. As the district court pointed out in its opinion denyingKnasiak’s post-judgment motions, individual liability is possible if the subordinate employ ee, motivated by unlawful discriminatory intent, caused the nominal actors to take theNo. 18-2045 7

adverse action. That can happen, for example, if the evidence shows that the nominal decisionma kers played no real role in the action, but instead simply rubber-stamped the action of the subordinate. There was ample evidence in the record from which the jury could have concluded (and did conclude) that Knasiak fi led the CR after the gas-card incident out of discriminatory animus, and that it was this ac tion that triggered the two adverse actions at issue. In fi ling that CR, he intended to bring about the predictable results—namely, Sommer fi eld’s suspension and ineligibility for th e canine handler position. Staub v. Proctor Hosp. , 562 U.S. 411, 417 (2011) (“Intentional torts such as this, as distinguished from negligent or reckless torts, generally require that the actor intend the consequences of anact, not simply the act itself.”) (internal alterations and quotation marks omi tt ed). There was also evidence to support the jury’s conclusion that Knasiak, not the commi tt ee that investigated the CR, was the real decisionmaker. Knasiak himself testi fi ed that his recommendations for suspensions were almost always taken. And Sommer fi eld presented evidence that this practice was followed in his case, given that Knasiak spoke with the police sergeants investigating his CR. The jury was entitled to conclude that Knasiak intended to get Sommer fi eld suspended because of his Jewish heritage and that he knew his suspension recommendation would be accepted because of the consistent practice in the Departme nt and his close relationships with the investigators.

Sommer fi eld also presented enough evidence to permit the jury to conclude that Knas iak knew about his ambition to become a canine handler. Another superior o ffi cer testi fi ed8 No. 18-2045

that he knew that Sommer fi eld was on the “well-quali fi ed list” for a promotion to canine handler. The o ffi cer additionally testi fi ed that it was well-known around the precinct that Sommer fi eld had been angling for the position. Finally, the

o ffi cer con fi rmed that it was well-known that multiple suspensions would disqualify an applicant from the canine handler job. Although there is no direct evidence that Knasiak knew that Sommer fi eld wanted the job, there was enough circumstantial evidence for a jury to fi nd that Knasiak had the requisite knowledge and intent. We are not saying that this evidence was overwhelming, but that is not the standard. We do not lightly set aside jury verdicts, and we are satis fi ed that this is not one of the rare cases in which that must be done. We also fi nd much of thediscussion in the briefs in this court about the so-called cat’spaw idea to be beside the point. Courts need to resist the temptation to turn colorful metaphors into “doctrines” or “theories.” Just as we said in Ortiz v. Werner Enterprises, 834 F.3d 760 (7th Cir. 2016), “[the] legal standard ... is simply whether the evidence would permit a reasonable fact finder to conclude that the plainti ff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Id. at 765. Though Ortiz arose under section 1981, we clarify here that the same standard applies to cases brought under section 1983. See Smith v. Bray, 681 F.3d888, 899 (7th Cir. 2012) (“In general, the same standards govern intentional discrimination claims under Title VII, § 1981, and § 1983.”), overruled on other grounds by Ortiz, supra . The evidence before this jury permi tt ed it to conclude that Knasiak engineered Sommer fi eld’s wrongful suspension and his loss of the promotion. The district court thus correctly denied Knasiak’s motion for judgment as a ma tt er of law.No. 18-2045 9

Knasiak argued in the alternative for a new trial, citing Federal Rule of Civil Procedure 59(a). Relying largely on its discussion of the evidence in connection with the Rule 50(b) motion, the district found that no new trial was warranted. We review this type of ruling only for abuse of discretion. See Browning-Ferris Ind. of Vermont, Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989). We see no problem of that magnitude here.

III

Even if he is not entitled to set aside the verdict as a ma tt er of law or to obtain a full new trial, Knasiak insists that thepunitive-damages component of the jury’s verdict is excessive, disproportionate, and violates due process principles, and for those reasons must be set aside or reduced pursuant to Rule 59(e). This is essentially a request for a remi ttitur. We generally review a district court’ s decision to grant or deny remi ttitur for abuse of discretion. Picke ttv. Sheridan Health Care Ctr. , 610 F.3d 434, 446 (7th Cir. 2010). A constitutional challenge to a denial of a motion for remi ttitur, however, is reviewed de novo

. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc. , 532 U.S. 424, 435 (2001). We analyze the constitutionality of an award of punitivedamages according to the three-part test set out by the Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). There, the Supreme Co urt held that an award of punitive damages will violate the Due Process Clause of the Fourteenth Amendment only if itis “grossly excessive” in relation to a state’s legitimate interest “in punishing unlawful conduct and deterring its repetition.” Id . at 568. In applyingthat standard, the district court should consider: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the10 No. 18-2045

disparity between the harm (or potential harm) su ffered by the plainti ffand the punitive-damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable

cases. Id . at 574

− 75. Following these instructions , the district court found fi rstthat Knasiak’s behavior was “extremely reprehensible,” because he had “abused a position of power, one of public trust,” and because his harassment “persisted for years and escalated in tone and frequency. ” As for the second point, the court found that the ratio be tween the punitive-damages award and the compensatory-d amages award stood at 5.8, which it determined was not irrational. Finally, the court found that the punitive-damages award was not excessive compared to other cases. Knasiak argues that the districtcourt erred in all three of these determinations. First, he argues that the Supreme Court in Goreset out a “hierarchy of repr ehensibility,” according to which acts and threats of violence stand at the top. See Gore, 517 U.S. at 575

− 76 (“This principle re fl ects the accepted view that some wrongs are more blameworthy than others. Thus, we have said that nonviolent crimes are less serious thancrimes marked by violence or the threat of violence.”) (internal quotation marks omi tt ed)). Mere verbal harassment, according to Knasiak, cannot support such a large punitivedamages award, as it falls lower in the hierarchy. Second, he argues that the punitive damages were not reasonably related to the compensatory damages. Fi nally, he cites a statute that he says shows that the punitive damages levied against him are disproportionately large.No. 18-2045 11

We do not fi nd Knasiak’s arguments persuasive. We do not read Gore as establishing such a rigid hierarchy of reprehensibility. The Court observed only that the “degree of reprehensibility” is “the most impo rtant indicium of the reasonableness of a punitive damages award.” Id . at 575. It notedthat certain types of conduct could support larger punitivedamages awards than others. Id . Indeed, the Court later clarifi ed that Goremerely set out a series of “factors” to be considered when evaluating whether conduct was su ffi ciently reprehensible to warrant a punitive-damages award. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). Although Knasiak’s harassment never turned physicallyviolent, his conduct was nevertheless “extremely reprehensible.” See Farfaras v. Citizens Bank & Trust of Chi ., 433 F.3d 558,561 (7th Cir. 2006) (holding that continuous sexual harassment by three superiors constituted extremely reprehensible conduct); Neuros Co., Ltd. v. KTurbo, Inc. , 698 F.3d 514, 516

− 17 (7th Cir. 2012) (holding that a company’s dissemination offalse information about a competitor’s products could support a fi ve-to-one punitive-damages award). Knasiak verbally abused Sommer fi eld with vicious anti-Semitic slurs for a period lasting years. He degraded him for his Jewish heritage in front of his co-workers and insult ed his girlfriend for her race.The absence of physical abuse does not render Knasiak’s behavior any less reprehensible.No legal principle requires the conclusion that this punitive-damages award was excessive relative to the harm that Knasiak in fl icted. Under Gore, a court analyzes the ratio of punitive damages to “the actual harm in fl icted on the plainti ff .” Gore, 517 U.S. at 580. The districtcourt determined that the actual economic harm in fl icted on Sommer fi eld as a result of12 No. 18-2045

his suspension and his loss of th e canine handler position was $54,315.24. The court additionally concluded that the $30,000 that the jury awarded Sommer fi eld in Sommer fi eld I belonged in the calculation of actual h arm. Thus, according to the district court, the fi nal ratio between the punitive damages and actual harm stood at $540,000 to $93,019.20, roughly 5.8 to 1. The court concluded that this was well within constitutional bounds. Knasiak contends nonetheless that the punitive damages here bear no “reasonable relati onship” to the compensatory damages. He argues that he could not be held liable for the $54,315.24 that the City of Chicago paid Sommer fi eld in backpay and other compensation. He draws from that fact the conclusion that he could not be held liable for Sommer fi eld’s suspension or his failure to get the canine handler position. Additionally, Knasiak argues, be cause the jury awarded Sommer fi eld only punitive damages and no compensatory damages, it must have been motived by animus toward Knasiak. Punitive-damages awards, however, are not conditioned upon the presence of compensatory damages. Timm v. Progressive Steel Treating, Inc. , 137 F.3d 1008, 1010 (7th Cir. 1998). The jury’s award of punitive damages without compensatorydamages is thus not suspect, at least not on that basis. We already have held that there was enough evidence to hold Knasiak liable for Sommer fi eld’s loss of pay resulting from his failure to obtain the canine handler position. Even without considering the $30,000 award that Knasiak received from the City of Chicago, the ratio would be $540,000 to $54,315.24, or 9.94 to 1. Mathematical ratios are not “the be-all and end-all in punitive-damages analysis.” Shea v. Galaxie Lumber & Constr. Co. , 152 F.3d 729, 736 (7th Cir. 1998). We have upheldNo. 18-2045 13

substantially larger ratios betw een actual damages and punitive damages in similar cases. See, e.g ., Mathias v. Accor Econ. Lodging, Inc. , 347 F.3d 672 (7th Cir. 2003) (upholding a ratio of 37.2 to 1 where a hotel had been found grossly negligent in failing to rid itself of bedbugs); Fine v. Ryan Int’l Airlines , 305 F.3d 746 (7th Cir. 2002) (upholding a ratio of 50 to 1 in a case of sex discrimination). The single -digit ratio here, in light of the severity of the harassment, was consistent with awards in other cases and did not violate due process. With respect to the third Gore factor, Knasiak argues that the amount of punitive damages imposed upon him exceedsthe amount authorized elsewhere for comparable misconduct. Knasiak points to Title VII’s statutory damages cap, which limits damages in employ ment discrimination cases to a maximum of $300,000. 42 U.S. C. §1981a(b)(3). He argues that, by analogy, punitive damages should be so limited here. We do not accept the fi rst step of his argument: that Title VII’s damages cap is relevant in this situation. That cap represents a policy judgment on Congress’s part to limit the amount of damages that a defe ndant must pay in a Title VII case. Title VII applies to entiti es, rather than individuals, and the cap re fl ects the di fference in the incent ives an entity may have to take corrective action after an incident of employmentdiscrimination. A jury may still award more than $300,000 under Title VII’s system, but the court must reduce the amountto $300,000. If Congress had wished to cap the damages available under section 1981, then it would have done so. But it did not, and we see no warrant for what would amount to a judicial amendment to the statute. Finally, Knasiak argues that we should consider his fi nancial circumstances in assessing the legitimacy of the punitive14 No. 18-2045

damages. Knasiak is now retired. He has indicated that he works only sporadically and th at he has a mortgage on his house, medical bills unpaid byinsurance, and a negative net worth. The jury apparently chose $540,000 because it amounts to ten years of his pension. Knasiak argues that a damages award of $540,000 would mean fi nancial ruin for him, and that the district court should have taken that into consideration. But a comparison between the level of punitive damages and the defendant’s fi nancial resources is not mentioned in Gore . See also id. at 591 (Breyer, J., concurring) (the fi nancial position of the defendant “is not necessarily intended to act as a signi fi cant constrainton punitive awards. Rather, it provides an open-ended basis for in fl ating awards when the defendant is wealthy.”). We have he ld that “sanctions should be based on the wrong done rather th an on the status of the defendant; a person is punished for what he does, not for who he is.” Mathias , 347 F.3d at 676. We note as well that if Knasiak is or becomes insolvent, his re medy is bankruptcy, which ensures that all creditors receive their contractual and statutory due, rather than leaving one un paid. Thus, the district court was within its discretion in declining to grant remi ttitur.

IV

We A FFIRMthe decision of the district court.