The Honorable Philip P. Simon of the United States District

1

Court for the Northern District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2877

DONNA L. LEWIS,

Plaintiff-Appellant,

v.

CITY OF CHICAGO POLICE

DEPARTMENT, CITY OF 

CHICAGO, and TERRENCE

WILLIAMS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 6050—Ruben Castillo, Judge.

ARGUED OCTOBER 5, 2009—DECIDED DECEMBER 21, 2009

Before EVANS and SYKES, Circuit Judges, and SIMON,

District Judge.1

SIMON, District Judge. Chicago police officer Donna

Lewis claims she was discriminated and retaliated
2 No. 08-2877

against by the City of Chicago and her supervisor, Lt.

Terrence Williams. Her claim was initially borne out of a

decision by Williams to deny her request to participate

in a special security detail in Washington, D.C. The

acorn of that decision has produced an oak tree of litigation. Initially, the district court granted Defendants summary judgment. Lewis appealed that decision and won,

in part. This Court reversed and remanded as to her

gender discrimination claim against both Defendants

and her retaliation claim against the City. Lewis v. City of

Chicago (“Lewis I”), 496 F.3d 645, 656-57 (7th Cir. 2007).

At the subsequent trial, the jury returned a verdict in

favor of Williams and the City on both claims. The

district court denied Lewis’s motion for a new trial, and

Lewis appeals. She raises no less than fifteen issues

which she claims warrant a remand and a new trial.

Finding none of these issues to have merit, we now affirm.

I. BACKGROUND

Williams began supervising Lewis, an officer in the

tactical unit (“TACT”), when Williams became the Tactical

Lieutenant in the summer of 2002. In September of that

year, the Washington, D.C. police department requested

other departments to provide officers to assist with a

security detail surrounding a meeting of the International Monetary Fund (“IMF”). Chief James Maurer wrote

a memo addressing the IMF detail, announcing that

“[b]ecause of hotel accommodations, a lone female officer

will not be sent since there are two persons to each room.

Therefore, recommend a minimum of two female officers.”
No. 08-2877 3

Assignment to the detail was limited to officers in the

TACT, Gang or Special Operations (“SOS”) units. Chief

Maurer testified that even though the memo only referred

to females, the actual policy demanded that individual

officers could only be sent if an even number of that

person’s gender was going, regardless of whether the

gender was male or female.

Lewis felt the IMF detail was a good career opportunity and that she met all the requirements. She applied,

but her supervisor Williams took her off the list. According

to Lewis, Williams told her, “I took your name off the list

because you’re female” and “the trip was going to be

dangerous and a working trip and that you will thank

me for it later.” Williams denies saying anything of the

sort. He says that he removed her from the list because

no other females from her district signed up. Lewis lost

out on the training experience and some overtime pay.

Shortly after being denied participation in the IMF

detail, Lewis filed a grievance over the decision. She

says this triggered several acts of retaliation including

being ordered to investigate a CAPS complaint by herself. CAPS complaints are initiated by citizens and are

investigated by the police department. Williams told

her, “[I]f you feel like you need an assist, get a car off the

watch.” Lewis says this was a sarcastic remark, implying

that if she couldn’t handle the assignment by herself,

she should call over the radio for a uniformed officer to

assist. Lewis investigated the complaint and later filled

out a report that she says her supervisors repeatedly

rejected without reason. The supervisors claim it was

rejected because it was incomplete.
4 No. 08-2877

Another act of retaliation, according to Lewis, occurred

on October 4, 2002, when Williams instructed Lewis’s

car to respond to a “shots fired” call. Lewis and the two

other officers in the car with her were already in the

process of responding to the call. They conducted the

investigation without incident.

In January 2003, Williams transferred Lewis from the

TACT to the Gang unit, reassigning her to a new partner.

This was another act of retaliation according to Lewis.

Lewis learned that her new partner, Macon, was known

to want a transfer out of the unit and was less eager to

conduct aggressive police work. The reassignment

afforded what Lewis felt were fewer chances for overtime and more desirable assignments. She was later

reassigned to another partner after Officer Macon moved

to a different unit.

Lewis then requested a transfer to the SOS unit, which

would have placed her outside of Williams’s supervision.

That request was denied by Chief Maurer, along with

the request of three other officers from Lewis’s district

who requested transfers to the SOS unit at around the

same time. In fact, only two of ten total applicants

during that period were accepted into the SOS unit.

On March 12, 2003, Williams received notice that Lewis

had filed an EEOC charge concerning the IMF detail and

her claims of retaliation. The next day, Lewis was in her

squad car responding to a burglary-in-progress call when

a voice Lewis claims belonged to Williams came on the

radio and ordered her to assist with a narcotics team

operation. While assisting the narcotics team with a

forced entry, Lewis was hit in the head with a sledge-
No. 08-2877 5

hammer by another officer. She suffered a fractured neck

and is now on a permanent disability leave. The sledgehammer struck Lewis while in the other officer’s

backswing. There is no indication that the incident was

anything other than an accident. Lewis believes that

being ordered to assist the narcotics team was another

example of her being put in dangerous situations by

Williams in retaliation for her filing the EEOC charge.

II. ANALYSIS

Lewis has four broad categories of complaints about

how her trial was conducted. She believes that the jury

was given incorrect instructions on the law, that there

were several evidentiary errors, that the City’s closing

argument was prejudicial and that there was insufficient

evidence for the jury to have found for the Defendants.

We take each up in turn.

A. Jury Instructions

Lewis makes a total of seven challenges to the jury

instructions. We start with a general discussion of the

law governing challenges to jury instructions and then

move to Lewis’s specific issues. We review challenges to

jury instructions de novo and afford the district court

“substantial discretion with respect to the precise

wording of instructions so long as the final result, read as

a whole, completely and correctly states the law.” United

States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008). When it

comes to potentially confusing or misleading instructions,
6 No. 08-2877

the reviewing court is to first ask if “the correct message

was conveyed to the jury reasonably well.” Dawson v. New

York Life Ins. Co., 135 F.3d 1158, 1165 (7th Cir. 1998). This

inquiry is done by examining the instructions as a

whole, in a common sense manner, avoiding nitpicking.

Id. If the instructions fail in this regard, a new trial is

appropriate only if the instruction prejudiced the complaining party. Id.

When a party fails to object to an instruction, the court

will reverse only if there was a “plain error affecting

substantial rights.” FED. R. CIV. P. 51(d)(2) (2008). Plain

error review of jury instructions is “particularly lighthanded.” United States v. DiSantis, 565 F.3d 354, 361 (7th

Cir. 2009) (quoting United States v. Griffin, 84 F.3d 912, 925

(7th Cir. 1996)).

1. Blending of Discrimination and Retaliation Instructions

The final set of instructions read to the jury included

separate instructions for the discrimination and retaliation claims. Lewis maintains that certain aspects of the

instructions could have confused the jurors into incorrectly thinking that Lewis had to prove discrimination

and retaliation to prevail on her retaliation claim.

The discrimination instruction came first, and it

outlined the various elements of Lewis’s discrimination

claim. The next two pages of instructions contained short

paragraphs introducing general retaliation law. Following

that came five paragraphs making up the retaliation

instruction. The first two paragraphs of the retaliation

instruction read as follows:
No. 08-2877 7

Plaintiff claims that she was singled out for more

dangerous assignments, singled out for adverse treatment about her job performance, moved from her

partner and her team, and/or refused to transfer her,

and/or directed her to more dangerous calls by Defendant City of Chicago, through its agents because

she complained about gender discrimination.

Plaintiff must also prove by a preponderance of the

evidence that Defendant City of Chicago singled her

out for more dangerous assignments, singled her out

for adverse treatment about her job performance,

moved her from her partner and her team, and/or

refused to transfer her, and/or directed her to more

dangerous calls because she complained of gender

discrimination. To determine that Plaintiff Lewis was

singled out for more dangerous assignments, singled

out for adverse treatment about her job performance,

moved from her partner and her team, and/or

refused to transfer her, and/or directed her to more

dangerous calls because she complained of gender

discrimination, you must decide that Defendant City

of Chicago would not have singled her out for more

dangerous assignments, singled her out for adverse

treatment about her job performance, moved her from

her partner and her team, and/or refused to transfer

her, and/or directed her to more dangerous calls if she

had not complained of gender discrimination but

everything had been the same. (emphasis added).

Lewis takes issue with the inclusion of the word “also”

in the second paragraph of the retaliation instruction. Her

argument is that since there was nothing in the first
8 No. 08-2877

paragraph of the retaliation instruction describing what

else Lewis had to “prove,” then the reader would

naturally keep looking backwards in the instructions to

give meaning to the word “also,” and ultimately stumble

upon the elements of the discrimination instruction. As

a result, Lewis reasons, the jury could have understood

the retaliation instruction to mean that she had to

prove discrimination to prevail on her retaliation claim.

It’s fairly clear that the stray “also” was included in the

instructions by error. Here’s what happened: After the

close of evidence, the district judge sent the jury home for

the day and conducted a jury instruction conference. The

following morning, the City’s counsel proposed an

amended retaliation instruction which was “tendered” to

the court. See Tr. at 936. The City’s proposal added a

new paragraph to the retaliation instruction. After

reading the proposed instruction, the judge agreed with

including the additional paragraph but said he wanted to

switch the ordering of two of the paragraphs. The “also”

made sense as the paragraphs were originally written

but lost meaning when they were flip-flopped.

Including the stray “also” did not lead to the jury

being misinformed. The jury very easily could have

understood the distinction between the discrimination

instruction and retaliation instruction. First, it heard

closing arguments from counsel that treated the claims as

being completely distinct, one not dependent on the

other. Second, the retaliation instruction and discrimination instructions were separated by two pages of other

instructions. The “also” may have quite plausibly been
No. 08-2877 9

taken to refer to those intervening pages or the first

paragraph of the retaliation instruction itself, which

identified Lewis’s retaliation claims. We cannot say that

the inclusion of the word “also” made the instructions

so confusing and misleading that it resulted in the jury

being conveyed an incorrect message. Dawson, 135 F.3d

at 1165.

More importantly, Lewis failed to object to the instruction. Rule 51(b)(2) requires a court to give the parties an

opportunity to object to an instruction on the record and

out of the jury’s hearing before the instructions and

arguments are delivered. FED. R. CIV. P. 51(b)(2) (2008).

Under Rule 51, a court may remedy an error in the instructions that was not preserved if the error is plain

and affects substantial rights. FED. R. CIV. P. 51(d)(2);

Griffin v. Foley, 542 F.3d 209, 222 (7th Cir. 2008). In the

context of challenged jury instructions, a party’s substantial rights are affected so as to warrant reversal if the

error is “of such great magnitude that it probably

changed the outcome of the trial.” United States v. Noel,

581 F.3d 490, 499 (7th Cir. 2009) (quoting United States v.

Peters, 435 F.3d 746, 754 (7th Cir. 2006)).

 Lewis claims she “did not see this revised instruction

before it was read to the jury.” Appellant’s Br. at 23. This

implies that it was somehow clandestinely passed to

the judge without Lewis or her attorneys having a

chance to see it. But the discussion of the changes to

the instruction were made in open court. The City’s

proposed changes to the instruction were tendered to

the judge, and there is no indication that Lewis’s counsel
10 No. 08-2877

asked to see a copy or expressed any interest in

reviewing the final language. The judge announced his

revisions prior to reading the instructions to the jury.

We have no reason to think Lewis would have been

denied the ability to read the instruction had she

expressed any desire to do so. Even without seeing the

actual piece of paper, Lewis was orally made aware of

all changes that were being made and could have

promptly responded.

Consequently, although the opportunity to object in the

time provided by Rule 51 was short in this case, the

opportunity was nonetheless there. In fact, the very

next portion of the transcript shows both parties

obviously aware of their need to preserve objections and

the opportunity to do so, as they quickly renewed previously unrelated objections to the instructions.

In sum, the error created by the stray “also” (if it may be

called that) was not significant enough to affect Lewis’s

substantial rights or to likely change the trial’s outcome. It

stretches the imagination to suggest that the mistaken

inclusion of one word in this set of jury instructions that

span twelve pages made any difference in the outcome

of the trial.

Lewis raises a few additional points, which she argues

added to the confusion created by the presence of the

stray “also.” First, she claims Instruction No. 5 contained

a confusing use of the word “and” which, according to

Lewis, again impermissibly linked the discrimination

and retaliation claims. The instruction said:
No. 08-2877 11

In deciding Plaintiff Lewis’s claims, you should not

concern yourselves with whether Defendants’ actions

were wise, reasonable, or fair. Rather, your concern

is only whether Plaintiff Lewis has proved that Defendant City of Chicago and/or Defendant Williams

denied her the opportunity to participate in the IMF

Detail in Washington, D.C. because of her gender, and

whether Defendant City of Chicago took any of the

actions identified in the previous instruction in retaliation for her complaint of gender discrimination.

(emphasis added).

This instruction is a proper statement of law and follows

the Seventh Circuit Pattern Instruction 3.07. It deals with

an entirely separate subject matter from what is required

to prove discrimination and retaliation. Instruction No. 5

simply warned the jurors not to substitute their own

judgment for that of the City regarding matters outside

of the concerns animated by Title VII.

Second, Lewis takes issue with the judge’s reading of

one of the verdict forms to the jury. Verdict Form 4 originally said that if the jury found that Lewis did not prove

“retaliation” it must find for Williams on the “retaliation”

claim. The verdict form should have said “discrimination.”

But this error was repaired immediately after the judge

read the instructions, and was corrected on the verdict

form that went back with the jury. Ultimately, then, the

corrected verdict forms only helped to alleviate any

problems caused by the stray “also” in the retaliation

instruction, rather than compound it.
12 No. 08-2877

2. The Jury Instruction Defining “Materially Adverse” 

Lewis also claims that the district court erred by submitting to the jury the question of whether the actions of

the City amounted to a materially adverse employment

action under the discrimination claim. She claims that

submitting the issue to the jury ignores this Court’s

holding in Lewis I. Here’s the relevant paragraph of the

discrimination instruction as it was read to the jury:

To succeed on this claim, Plaintiff Lewis must first

prove by a preponderance of the evidence that the

denial of the opportunity to participate in the IMF

Detail in Washington, D.C. was a materially adverse

employment action. Not everything that makes an

employee unhappy is a materially adverse employment action. It must be something more than a minor

or trivial inconvenience. For example, a materially

adverse employment action exists when someone’s

pay or benefits are decreased; when her job is changed

in a way that significantly reduces her career prospects; or when job conditions are changed in a way

that significantly changes her work environment in

an unfavorable way. The denial of an opportunity to

earn overtime is a materially adverse employment

action if the overtime is a significant and recurring

part of an employee’s total earnings. On the other

hand, if the opportunity to earn overtime is insignificant and nonrecurring, it will not be a materially

adverse employment action.

Lewis contends that the actions taken against her were

materially adverse as a matter of law, and so the court
No. 08-2877 13

should not have posed the question to the jury. Whether

the denial of Lewis’s placement on the IMF detail constituted a materially adverse action was undeniably in

dispute. This Court in Lewis I said it was a genuine issue of

material fact. Lewis, 496 F.3d at 654. At trial, the City

presented evidence that Lewis did not know how much

overtime she would have earned, that there were several

other equally beneficial details available to her, that the

IMF detail was unglamourous while better training

exercise opportunities existed in Chicago, and that she

was not denied any subsequent assignments or promotions as result of not being able to participate. Lewis’s

reliance on Henry v. Milwaukee County, 539 F.3d 573, 585-86

(7th Cir. 2008), is misplaced because, in contrast to this

case, the overtime opportunity in Henry was a significant

and expected component of the plaintiffs’ compensation.

It is true that some cases present obvious examples of

materially adverse actions being taken against employees.

For example, courts should not generally task juries with

determining whether terminations, demotions or salary

cuts are materially adverse actions. But there are times

where the question is not so obvious, and this case

presents one of those instances. See SEVENTH CIRCUIT

PATTERN JURY INSTRUCTION § 3.01, Comment E (noting

that if a fact issue arises as to whether the plaintiff

suffered a materially adverse employment action, “a court

should modify the instructions to provide the jury

with guidance as to what this term means.”). Because the

degree of adversity suffered by Lewis was substantially

in doubt, the jury was appropriately presented with

the issue.
14 No. 08-2877

3. Inclusion of “Materially Adverse” Requirement in Retaliation Instruction

Lewis next takes issue with how the judge instructed

the jury on what the term “materially adverse” means in

the context of the retaliation claim. Lewis argues that the

instruction did not correctly follow Burlington Northern

and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Specifically, she takes issue with the following part of the retaliation instruction:

To succeed on this claim, Plaintiff must prove by a

preponderance of the evidence that the challenged

actions are ones that a reasonable employee would

find to be materially adverse such that the employee

would be dissuaded from engaging in the protected

activity.

It’s difficult to make sense of Lewis’s argument. The

instruction is entirely consistent with the Supreme

Court’s opinion in White. As we noted in Lewis’s prior

appeal, the main take-away from White is that “the range

of conduct prohibited under [Title VII’s anti-retaliation]

provision is broader than Title VII’s [anti-]discrimination

prohibition.” Lewis, 496 F.3d at 654-55 (quoting Phelan v.

Cook County, 463 F.3d 773, 787 (7th Cir. 2006)). The Supreme Court noted that for retaliation claims, “a plaintiff

must show that a reasonable employee would have found

the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” White, 548 U.S. at 68 (internal citations and

quotation marks omitted). In light of this, it’s hard to see
No. 08-2877 15

how Lewis would conclude that White does not require

proof of an “adverse action” in a retaliation case.

Lewis also argues that because Lewis I found that she

had provided “sufficient evidence” of retaliation to

show a materially adverse action (under the White definition), the jury didn’t have to be asked whether the

actions were materially adverse. 496 F.3d at 655. But, once

again, Lewis I was reviewing the evidence under a summary judgment standard to determine if there was a

genuine issue of material fact. After deciding that there

was such an issue, it was then up to the jury to decide

the question. After all, Lewis did not win on summary

judgment, she merely defeated the City’s motion. This

Court’s finding of “sufficient evidence” in a summary

judgment context did not end the factual inquiry. It was

perfectly valid for the district court to require the jury to

determine if Lewis proved a “materially adverse” action,

and to explain that term in a manner that was consistent

with White.

4. Instruction on Intentional Discrimination

Lewis next argues that the discrimination instruction

was improper because it required Lewis to prove that the

Defendants “intentionally discriminated against her.” She

cites to Huff v. Sheahan, 493 F.3d 893 (7th Cir. 2007) and

Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir. 1986),

but those cases address hostile work environment claims.

Lewis’s hostile work environment claim was dismissed

at summary judgment and not pursued at trial.
16 No. 08-2877

A plaintiff bringing a disparate treatment claim must

prove intentional discrimination. The Supreme Court

has stated that it is the plaintiff’s burden to persuade “the

trier of fact that defendant intentionally discriminated

against the plaintiff.” St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 507 (1993) (quoting Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981)); Gonzalez v.

Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir.

1998) (“Proof of intentional discrimination is required

under a disparate treatment analysis.”); see also Waite v.

Bd. of Trs. of Ill. Cmty. Coll. Dist. No. 508, 408 F.3d 339, 343

(7th Cir. 2005). Lewis herself admitted this in her briefing

when she wrote that “[t]his evidence is also necessary to

prove discriminatory and retaliatory intent, which is an

essential element under Title VII.” See Appellant’s Br. at 46

(emphasis added). The instruction requiring Lewis to

prove intentional discrimination was therefore entirely

appropriate.

5. Mixed-Motive Instruction

Congress amended Title VII in 1991 to allow for liability

if a plaintiff proves that her gender (or other protected

class) was a “motivating factor” for a defendant’s

adverse action. 42 U.S.C. § 2000e-5(g)(2)(B) (2009). The

courts have developed instructions reflecting the amendment, advising juries that if a plaintiff proves that

gender was a motivating factor, but the defendant shows

it would have taken the adverse action anyway, then it

must find the defendant liable but cannot award damages. See SEVENTH CIRCUIT PATTERN JURY INSTRUCTION
No. 08-2877 17

The concurring opinion in Boyd v. Illinois State Police, 384 F.3d 2

888, 901 (7th Cir. 2004) (Posner, J., concurring), suggests that if

a defendant decides to put on the mixed-motive defense, then a

mixed-motive instruction is appropriate. The opinion goes on to

posit that if the defendant argues the only reason for the adverse

action was for a non-discriminatory reason, then he is “going for

broke” by aiming for a complete defense, and so no mixedmotive instruction should be used. Id. 

§ 3.01, Comment B and C. Circuits are split as to whether

to apply a mixed motive instruction in all Title VII cases,

see id. (citing EIGHTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS § 5.01; NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS § 12.1 & Comment; ELEVENTH CIRCUIT PATTERN

JURY INSTRUCTIONS (CIVIL CASES) § 1.2.1)), or only in

those cases determined to raise a question of mixed

motives, see id. (citing Watson v. Se. Penn. Transp. Auth., 207

F.3d 207, 214-20 (3d Cir. 2000); Fields v. New York State

Office of Mental Retardation & Developmental Disabilities,

115 F.3d 116, 121-24 (2d Cir. 1997)). This Court has yet

to decide when it is appropriate to apply a motivating

factor instruction.2

For situations in which a judge has decided to give

the jury a mixed-motives instruction, the Committee on

Pattern Civil Jury Instructions makes the following recommendation:

Plaintiff must prove by a preponderance of the evidence that his [protected class] was a motivating factor

in Defendant’s decision to [adverse employment action]

him. A motivating factor is something that contributed
18 No. 08-2877

to Defendant’s decision. If you find that Plaintiff

has proved that his [protected class] contributed to

Defendant’s decision to [adverse employment action]

him, you must then decide whether Defendant

proved by a preponderance of the evidence that it

would have [adverse employment action] him even if

Plaintiff was not [protected class]. If so, you must enter

a verdict for the Plaintiff but you may not award him

damages. See SEVENTH CIRCUIT PATTERN JURY INSTRUCTION § 3.01, Comment C.

This case does not present us with the appropriate

context to choose sides in the circuit split because Lewis

did not preserve the issue for appeal. She merely hinted

at it, by proposing a three-paragraph instruction. The

middle paragraph, the only one addressing mixed-motives,

stated:

Plaintiff is not required to prove that her gender was

the sole motivation for the decision. Rather, Plaintiff’s

gender was a motivating factor if Plaintiff’s gender

made a difference in the decision.

The problem with this proposal is that it leaves out the

very significant second sentence suggested by Comment C

of the Pattern Instructions, the one that tells the jury

what to do if it finds gender to be a motivating factor.

Namely, the jury would have to decide whether the

Defendants proved that they would have taken the same

action even if Lewis was a man, and if so, enter a verdict

for Lewis but not award damages. Even if a party is

“entitled to an instruction,” it is “required to tender an

instruction that correctly stated the law in order to chal-
No. 08-2877 19

lenge the district court’s refusal to use it.” Marshall v.

Porter County Plan Com’n, 32 F.3d 1215, 1220 (7th Cir. 1994)

(citing Northbrook Excess and Surplus Ins. Co. v. Procter &

Gamble Co., 924 F.2d 633, 638 (7th Cir. 1991)). The Title VII

amendment codified as Section 2000e-5(g)(2)(B) “seems

to mandate two questions,” see Akrabawi v. Carnes Co., 152

F.3d 688, 694 (7th Cir. 1998) and Lewis’s proposed instruction was missing half.

We also agree with the district court’s assessment

that Lewis abandoned her request for a mixed-motive

instruction. Lewis v. City of Chicago, 563 F.Supp.2d 905, 912

(N.D. Ill. 2008). The transcript shows that during the

jury instruction conference, the judge asked Lewis’s

counsel about her proposed instruction containing the

motivating factor language. See Tr. at 909. The judge then

asked about the City’s own proposed instruction, which

used the “materially adverse” language from the comments of Pattern Instruction § 3.01, but not any motivating

factor language. Id. Lewis’s counsel immediately responded that “we would be fine” with “changing ours,

taking out the middle section.” Id. at 910. This presumably

referred to the middle paragraph of her proposed instruction—the one discussing gender as a motivating factor. Counsel for Lewis then recited an entirely new instruction on the record which did not have any “motivating factor” language. While counsel eventually did

object to the instruction that the court settled on, she did

so only with respect to the inclusion of the “materially

adverse” language discussed above. Id. at 911-12. She

did not lodge any objection to the exclusion of the “motivating factor” paragraph. Id.
20 No. 08-2877

In sum, Lewis did not preserve her objection. Merely

tendering a proposed instruction is not sufficient to

preserve an objection. Consumer Products Research &

Design, Inc. v. Jensen, 572 F.3d 436, 439 (7th Cir. 2009).

Lewis’s proposed instruction asked if “gender made a

difference in the decision.” It is unclear how this instruction would have led to a different result than the one

reached through the instruction that was given, which

asked if the Defendants would have taken the same

actions had Lewis “been male but everything else had

been the same.” They are both essentially “but for” instructions. Therefore, Lewis “cannot articulate how [she] was

affected by the refused jury instruction.” Id. at 439-40.

Under the “light-handed” review of jury instructions,

see DiSantis, 565 F.3d at 361, we cannot say that the exclusion of Lewis’s proposed instruction affected her

substantial rights. Nor can we say, in large part because

it was not argued, that the jury probably would have

found differently had it been given the full “motivating

factor” instruction discussed in Comment C of Pattern

Instruction § 3.01.

6. Pretext Instruction

Lewis next argues she was entitled to an instruction

advising the jury that it could find the City’s explanations for the actions it took to be a pretext. Of course, the

subject of pretext comes from the McDonnell-Douglas

framework. But the burden-shifting apparatus provided

by McDonnell-Douglas is applicable only to pretrial proceedings. Gehring v. Case Corp., 43 F.3d 340, 343 (7th
No. 08-2877 21

Cir. 1994). “Once the judge finds that the plaintiff has

made the minimum necessary demonstration (the ‘prima

facie case’) and that the defendant has produced a[ ]

neutral explanation, the burden-shifting apparatus has

served its purpose, and the only remaining question—the

only question the jury need answer—is whether the

plaintiff is a victim of intentional discrimination.” Id.

(emphasis in original). The exclusion of Lewis’s

pretext instruction did not render the final instructions

inaccurate, nor did it cause confusion for the jury. Lewis

was free to argue that the explanations given by the

Defendants were not believable and point to the

evidence showing why. We find no error with the

refusal to give a pretext instruction.

7. General Instructions

The district judge’s website says that “[t]his court has

adopted several general instructions that will be presumptively used in all cases.”See http://www.ilnd.uscourts.gov/

judge/castillo/standingtr.pdf, ¶ 11. The general instructions

address subjects such as the burden of proof, what constitutes evidence, and how a single credible witness can

overcome a greater number of opposing witnesses on

any specific point. Lewis claims the judge’s failure to

include his general instructions in her case constituted

an error. We disagree.

Lewis did not make any objection regarding the

failure to give the general instructions. Indeed, she

admits that she did not realize the general instructions

were not given until after the final instructions were
22 No. 08-2877

read and the jury retired to deliberate. Lewis claims

surprise but it’s difficult to see why. Rule 51(b) requires

that the court “inform the parties of its proposed instructions . . . before instructing the jury and before final jury

arguments.” The judge did just that and the general

instructions were not part of the set that the judge

intended to give. There was no reason for Lewis to

assume the judge would operate outside the bounds of

that rule by giving instructions that were not part of the

set formally proposed to the parties and not discussed

at all during the instruction conference.

Lewis focuses on one instruction in particular that she

claims should have been given—the “single witness”

instruction, which informs a jury that the testimony of

a single witness may be sufficient to prove any fact,

even if a greater number of witnesses may have testified

to the contrary. See Judge Castillo General Instructions,

Appellant’s Reply Supp. App. at 7. To the extent any

damage was done by not providing this instruction, it

was minimized by the fact that Lewis’s closing argument explained to the jurors that they were entitled to

believe her and find she met her burden despite the

existence of possible witnesses she did not call. Though a

closing argument cannot serve as a substitute for a court’s

jury instruction, see United States v. Walters, 913 F.2d 388,

392 (7th Cir. 1990), it can be accounted for when determining if there was plain error. See United States. v. Jackson,

569 F.2d 1003, 1010 (7th Cir. 1978). But in any event,

Lewis has not shown how the absence of the general

instructions could have affected her substantial rights or

seriously affected the proceedings. See Higbee v. Sentry

Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006).
No. 08-2877 23

B. Evidentiary Rulings

Lewis also appeals several evidentiary rulings made

during the trial. Decisions to exclude evidence are

given considerable deference, overturned only for an

abuse of discretion. Alverio v. Sam’s Warehouse Club, Inc.,

253 F.3d 933, 942 (7th Cir. 2001). A new trial is warranted

only if the error has a substantial and injurious effect or

influence on the determination of a jury and the result

is inconsistent with substantial justice. Cerabio LLC v.

Wright Medical Tech., Inc., 410 F.3d 981, 994 (7th Cir. 2005).

In addition, even if a judge’s decision is found to be

erroneous, it may be deemed harmless if the record

indicates the trial result would have been the same.

Alverio, 253 F.3d at 942.

1. March 13, 2003 Injury

The district court decided not to allow Lewis to testify

or give evidence pertaining to the March 13 incident in

which she was accidentally injured by a fellow officer

during a forced entry into a home. The judge relied on

Federal Rule of Evidence 403 finding that the probative

value of the testimony was substantially outweighed by

the danger of unfair prejudice. A district court is

afforded a special degree of deference when deciding

whether evidence is unfairly prejudicial under Rule

403. Estate of Moreland v. Dieter, 395 F.3d 747, 754-55 (7th

Cir. 2005). It is a rare case where appellate courts will

second-guess the judgment of the person on the spot, the

trial judge. Id.
24 No. 08-2877

Lewis was hoping to convince the jury that the March 13

incident showed that Williams was purposely placing her

in precarious situations in retaliation for her filing the

discrimination complaint. But as the district judge noted,

he allowed Lewis to present evidence on that point in

various ways: by offering evidence that she was assigned

to investigate a citizen’s complaint by herself; that she was

assigned to a “shots fired” call; that she was quickly

transferred from partner to partner so that she couldn’t

establish a safe working relationship with any of them; and

by diverting her from an in-progress burglary to a more

dangerous assignment on March 13. Lewis, 563 F.Supp.2d

at 918. So Lewis was allowed to present an abundance of

evidence to support her claim that she was retaliated

against by being given more dangerous assignments. She

was simply not allowed to present highly prejudicial testimony concerning the fact that during one of those assignments, she was accidentally injured.

We agree with the judge’s assessment that the blow-byblow story of the March 13 incident—involving being

accidentally hit in the head with a sledgehammer and

sustaining a broken neck—was “highly inflammatory.”

Lewis, 563 F.Supp.2d at 918. Evidence is unfairly prejudicial, “if it will induce the jury to decide the case on an

improper basis, commonly an emotional one, rather

than on the evidence presented.” United States v. Zahursky,

580 F.3d 515, 525 (7th Cir. 2009). The district judge fairly

weighed the probative value of that evidence against the

danger of unfair prejudice and correctly decided to

exclude it. That determination was not an abuse of discretion.
No. 08-2877 25

2. Denial of Surgery

Lewis also challenges the decision to exclude evidence

related to the City’s denial of her request for neck surgery,

which she hoped to offer in support of her retaliation

claim. The problem is that there was no evidence connecting Williams to the denial of surgery or showing that

the decision-makers within the City’s medical section

had any knowledge of Lewis’s Title VII complaint.

Lewis conceded the point at trial when—during an offer

of proof—she acknowledged that there was no evidence

that the medical section had any knowledge of the EEOC

charge. See Tr. at 234-35.

So the district court, using its discretion under Rule 403,

excluded the evidence. The judge found that, in the

absence of evidence that the people who denied the

surgery knew that she filed a complaint of discrimination,

such evidence had very little probative value. On the

other side of the scale was concern that allowing Lewis

and a host of medical witnesses to testify about the difficulty she was having in getting surgery might run the

risk of the jury deciding the case based on sympathy for

Lewis. Lewis, 563 F.Supp.2d at 919. The district court’s

decision to exclude the testimony was not an abuse

of discretion.

3. EEOC Determination, Internal Investigation and the

Promotion of Williams

The next issue raised by Lewis concerns the district

judge’s decision under Rule 403 to exclude evidence
26 No. 08-2877

pertaining to the EEOC determination, the City’s

internal investigation, and the promotion of Williams.

Although administrative findings may be admissible

under Federal Rules of Evidence 803(8)(C) and 801(d)(2),

the district court “retains significant discretion as to

whether [the determinations] ought to be admitted.”

Halloway v. Milwaukee County, 180 F.3d 820, 827 n. 9 (7th

Cir. 1999). The EEOC decision into Lewis’s claims

stated only that it “determined that the evidence

obtained in the investigation establishes reasonable

cause to believe that Respondent denied Charging Party

an overtime and training opportunity and retaliated

against Charging Party by reassigning her in violation of

Title VII.” This states only a conclusion and does not

provide much additional probative information, as the

district judge found. Lewis, 563 F.Supp.2d at 919. It

merely presents the question the jury was tasked with

answering. And it could have confused the jury into

thinking that the issue was already decided. Tullos v. Near

N. Montessori School, Inc., 776 F.2d 150, 153-54 (7th Cir.

1985) (finding no abuse of discretion where lower court

excluded EEOC determination because its consideration

“was tantamount to saying this has already been decided

and here is the decision.”). The same is true of the

City’s internal investigation, which actually exonerated

Williams. The judge was persuaded that admitting either

of the prior investigations in evidence would create a

substantial risk that the jury would adopt the earlier

conclusions. So he exercised his discretion, chose to

remain consistent and excluded both. Lewis, 563 F.Supp.2d

at 920 n. 4. This was not an abuse of discretion.
No. 08-2877 27

Lewis had argued the internal investigation was

relevant because the exoneration of Williams served as a

retaliatory measure against Lewis herself. But Lewis was

not pursuing a claim based on a continuing hostile work

environment, as was the case in Velez v. City of Chicago,

where a failure to remedy was discussed as grounds for

liability. 442 F.3d 1043, 1047 (7th Cir. 2006) (“An employer

is liable for a hostile work environment claim if . . . the

employer was ‘negligent either in discovering or remedying the harassment.’ ”) (quoting Mason v. S. Ill. Univ., 233

F.3d 1036, 1043 (7th Cir. 2000)). Lewis had the burden

of proving the discrete acts of retaliation. Even under

Lewis’s “failure to remedy” theory, this evidence

does not go very far in proving her case for retaliation. A

judge and jury would face difficulties if forced to

navigate through a record muddled between intersecting

and partially overlapping pieces of evidence presented

during the investigation and the trial, submitted under

differing evidentiary standards. The judge was free to

conclude that the risk of confusion outweighed the probative value.

Lewis also challenges the exclusion of evidence pertaining to the promotion of Williams which occurred after

she lodged her gender discrimination complaint. She

claims that the City has a policy to reconsider the promotion of officers after they receive sustained allegations of

discrimination, and since no such reconsideration occurred, she should have been able to use the promotion

as a signal of discriminatory and retaliatory intent. She

says the cover-up served as further retaliation and that a

jury could infer it was done to protect Williams, a highranking officer with the Department.
28 No. 08-2877

The promotion of Williams offered little insight into

the City’s discriminatory and/or retaliatory treatment of

Lewis herself, which was the actual matter at issue. So

the evidence had very little probative value. By the same

token, it would have been time-consuming to present.

And it would also have shifted the focus from the

actions taken against Lewis to the competing merits of

Williams and whether he actually deserved a promotion.

See Manuel v. City of Chicago, 335 F.3d 592, 597 (7th Cir.

2003) (finding speculative testimony about a supervisor’s

previous acts of racism to be unfairly prejudicial). Excluding the evidence concerning the merits of promoting

Williams was well within the district judge’s discretion.

4. Officer Warnings to Lewis to “Watch Her Back”

Lewis next challenges the exclusion of statements from

Officers Muhney, Oliver, Weatherspoon and Davis. Lewis

contends these officers advised her to “watch her back”

when responding to assignments given out by Williams,

implying that he was plotting to take retaliatory action

against her. The statements themselves had little

probative value since they were not comments of the

decision-maker himself. O’Regan v. Arbitration Forums, Inc.,

246 F.3d 975, 986 (7th Cir. 2001) (“Statements by a nondecision-maker that amount to mere speculation as to

the thoughts of the decision-maker are irrelevant to an

inquiry of discrimination.”); Chiaramonte v. Fashion Bed

Grp., 129 F.3d 391, 397 (7th Cir. 1997) (“Statements by

inferior employees are not probative of an intent to discriminate by the decisionmaker.”).
No. 08-2877 29

When Lewis tried to call Officer Davis at trial, she said

that Davis would testify that he “saw Lieutenant Williams

going off in the station.” See Tr. at 636. The judge responded that if Davis “can testify as to the defendant’s

acting in a certain manner and relates that to the EEOC

complaint, that’s fine.” Id. So it would have been permissible for the officers to testify if they saw from personal

knowledge Williams ranting and raving about Lewis’s

discrimination complaint. But they could not simply be

called to testify that Williams was “out to get her.” That

would have been utter speculation and highly prejudicial. The statements were therefore properly excluded.

For what it’s worth, Lewis managed to get the evidence

before the jury anyway. She was permitted to testify at

trial that Officers Weatherspoon and Davis told her that

Lieutenant Williams “went off” when he “found out about

the [discrimination] complaint and they told me to

watch my back, that he was definitely out to get me.” See

Tr. at 225. So Lewis got much of what she wanted in

any event. Excluding the witnesses from testifying to

their speculation that Williams was “out to get Lewis”

was entirely proper.

5. Other Acts of Discrimination and Retaliation Against

Other Employees

Lewis claims the judge wrongfully excluded evidence

of other acts of gender discrimination and retaliation by

the City. Lewis wanted to show acts taken by “other

police supervisory personnel”—not Williams. In Lewis I,

this Court affirmed summary judgment as to
30 No. 08-2877

Lewis’s § 1983 claim against the City, for a lack of evidence

demonstrating an express policy of discrimination or a

widespread practice of ignoring discrimination complaints. Lewis, 496 F.3d at 656. Thus, the remaining issue at

trial was whether there were acts of discrimination or

retaliation aimed at Lewis, not anybody else. Accordingly,

the judge correctly held that evidence of discrimination

and retaliation against other employees would be of

limited value. See accord, Grayson v. O’Neil, 308 F.3d 808,

816 (7th Cir. 2002) (“Evidence of generalized racism

directed at others is not relevant unless it has some relationship with the employment decision in question.”). The

high likelihood of juror confusion and inherent delay

that would surely accompany the disputes involved in

the introduction of this evidence outweighed what little

value could be gleaned from it.

C. Propriety of Closing Arguments

Lewis additionally seeks a new trial based on allegedly

prejudicial statements made by counsel for the City in

their closing arguments. Specifically, Lewis takes issue

with the City’s criticism of her failure to produce other

witnesses and evidence that would corroborate her

story. For example, the City pointed out in closing that

Lewis had not produced the officers who were riding in

the squad car when Williams allegedly assigned her to

assist with the narcotics call, or the officer who supposedly told Lewis that her SOS transfer request had

been blocked by someone at an upper level. The City

suggested to the jury that these events didn’t actually
No. 08-2877 31

happen, and that “there is no corroboration [of] anything

that she alleged happened in this case.” Tr. at 1004.

Lewis argues that this was a misstatement of the law.

She cites to Pattern Instruction § 1.18, which says, “[t]he

law does not require any party to call as a witness every

person who might have knowledge of the facts related

to this trial. Similarly, the law does not require any party

to present as exhibits all papers and things mentioned

during this trial.” See SEVENTH CIRCUIT PATTERN

JURY INSTRUCTION § 1.18, Comment E. Lewis failed to

object to the closing argument when made and has therefore waived the issue on appeal. Improper statements should be objected to when made, so as to give

the trial judge a chance to correct any prejudice caused

by the statement. Doe By and Through G.S. v. Johnson,

52 F.3d 1448, 1465 (7th Cir. 1995).

In any event, we find that the Defendants’ closing

did not create an improper missing witness instruction

or otherwise unfairly prejudice Lewis. “Attorneys have

more leeway in closing arguments to suggest inferences

based on the evidence, highlight weaknesses in the opponent’s case, and emphasize strengths in their own case.”

Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008). In

Littlefield v. McGuffey, 954 F.2d 1337, 1347 (7th Cir. 1992),

the Court found that an argument that “there’s not a

single witness, not a single witness put forth to corroborate any story that he was allegedly told,” was not

improper. The missing-witness rule “permits an

inference of unfavorable testimony from the missing

witness,” but may only be invoked “if that witness is
32 No. 08-2877

peculiarly within the opposing party’s power to produce.” Id. at 1346. Littlefield drew a distinction between

asking a jury to infer that a missing witness’s testimony

would be unfavorable (which is not allowed according to

the missing-witness rule) and asking a jury to question

a party’s credibility because it produced no corroborating evidence (which is permissible). Id. at 1346-47.

Since the City was attempting to show the latter, the

closing argument was appropriate.

D. Sufficiency of Evidence

Lewis’s final claim is that the verdict was against the

manifest weight of the evidence. The standard of review of

a trial court’s decision to deny a motion for new trial on

this ground is “abuse of discretion.” Moore ex. rel. Estate

of Grady, v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008). Challengers bear a “particularly heavy burden” because a

court will set aside a verdict as contrary to the manifest

weight of the evidence “only if no rational jury could

have rendered the verdict.” Id. The reviewing court must

view the evidence in the light most favorable to the

prevailing party, leaving issues of credibility and weight

of evidence to the jury. King v. Harrington, 447 F.3d 531,

534 (7th Cir. 2006).

On the discrimination claim, the jury was entitled to

believe Williams when he testified that he never made

the discriminatory statements alleged by Lewis and that

he had no discriminatory intent. In Lewis I, we acknowledged the IMF memo was direct evidence of discrimination, but only when reviewing it in the light most favor-
No. 08-2877 33

able to Lewis for purposes of summary judgment. Lewis,

496 F.3d at 652. We further stated that a genuine issue

of material fact existed as to whether gender discrimination occurred. Id. Chief Maurer testified that the

memo did not reflect an actual discriminatory policy,

and that the City had no intent to treat female officers

any differently than males.

Even if the jury did not believe Williams or Maurer on

those points, it still could have concluded that there was

no materially adverse action taken against Lewis. Whatever career benefits the IMF detail may have bestowed, a

tactical officer in Lewis’s position had the opportunity

to participate in several other similar details each year.

Lewis herself later worked on a security detail for the

President and at a later IMF meeting held in Chicago. Other officers were denied the chance to go to the

Washington, D.C. detail and still received promotions.

With respect to the retaliation claim, there was a reasonable basis for the jury to believe that the actions pointed

to by Lewis were not retaliatory at all, but merely part

of her job. For example, though she was told by

Williams on October 4 to respond to a “shots fired” call,

there was evidence that such calls occurred frequently

in her district. She was with two other officers at the

time. In fact, she and her partners were already responding to the call at the time Williams gave his order, so

a jury could easily conclude that the assignment was not

out of the ordinary or made with retaliatory motive.

For the March 13 incident, Lewis’s own testimony left

room for doubt as to whether it was actually Williams on
34 No. 08-2877

the radio re-assigning her to the narcotics assist. She said

it was a male voice, but she was unsure if it was

Williams or not. Williams typically began any radio call

by identifying himself as “Beat 360,” but no such signal

was made on the call in question. Further, the City put

forward evidence that assisting with narcotics calls was a

normal part of an officer’s job. Also, Lewis did not necessarily prove that assisting a narcotics team was somehow inherently more dangerous than investigating an inprogress burglary call, so the jury could have believed

that she was moved from a riskier assignment to a safer

one.

Lewis also argued that Williams retaliated against her

by ordering her to investigate a CAPS complaint without

a partner. Evidence showed, however, that he did not

tell her to investigate the complaint immediately, but

instead to wait for a uniformed officer to become available.

That is precisely what Lewis did, and then conducted the

investigation without incident. With respect to the CAPS

reports that Lewis filled out, the jury was provided with

enough evidence to conclude that they were “kicked back”

to her because they were incomplete and required

more details about her investigation, not because her

supervisors were retaliating against her for filing discrimination complaints. The jury was free to examine

the initial report, which was entered into evidence, see

that it consisted of only three lines, and find it was justifiably returned to Lewis.

As for Lewis’s request to transfer to the SOS unit, which

would have moved her away from Williams’s super-
No. 08-2877 35

vision, there was evidence that Chief Maurer made the

decision to reject the transfer, not Williams. And Chief

Mauer testified that he was unaware of Lewis’s discrimination complaint. He also denied the three other

requests from Lewis’s district, demonstrating that his

decision was not specifically directed against Lewis or

made out of any retaliatory motive.

In sum, the City and Williams presented sufficient

evidence to provide the jury a reasonable basis to find in

their favor. The verdict was not against the manifest

weight of the evidence.

III. CONCLUSION

The decision of the district court is AFFIRMED.

12-21-09