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ARGUED SEPTEMBER 15, 2008

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

Archie D. Thompson, Jr. was the only African-American paramedic in the Southern Illinois Regional Emergency Medical System. He was reduced to probationary status after he assisted a diabetic patient in her home but did not call medical control after the patient declined further treatment, even though other paramedics had handled diabetic patient responses the same way and were not disciplined. A jury agreed with Thompson that he was placed on probation only because of his race and awarded him $500,000. Memorial Hospital of Carbondale appeals the jury’s verdict against it. Although it defended its case at trial on the basis that race was not the reason for the probation decision, it argues different theories on appeal. We conclude that none warrant reversal. Because it knew before trial that whether Memorial and Thompson had a contractual relationship was a factual question but it did not raise the issue at trial, we affirm the judgment on Thompson’s 42 U.S.C. § 1981 claim. A jury could have drawn the inference that Paula Bierman, the Emergency Medical System Coordinator, had a singular influence on the probation decision, so the admission of her racial animus was not an abuse of discretion. And in light of the fact that it did not argue to the jury that Thompson had failed to suffer a materially adverse employment action, we deny its request to set aside the verdict on that basis. We do, however, find that remittitur of the $500,000 verdict to $250,000 is warranted. Finally, we deny Thompson’s cross appeal of the grant of summary judgment against him on his claims of hostile work environment and constructive termination, as the circumstances here did not rise to those levels.

 
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