The full case caption appears at the
end of this opinion. We hope thismusty Title VII case is one of the lastwe will see in which events straddle theenactment of the Civil Rights Act of1991. And we say good riddance to suchcases for they put the district court inthe delicate position of parceling outwhat must be decided by the judge andwhat may be decided by a jury. A gooddeal of this saga preceded the pivotaldate of November 21, 1991, when the newlaw for the first time gave Title VIIlitigants the right to a jury trial andallowed plaintiffs to seek punitive andcompensatory damages. 42 U.S.C. sec.1981a. These changes in the law, ofcourse, are not retroactive to conductthat occurred prior to November 21, 1991.Landgraf v. USI Film Prods., 511 U.S. 244(1994). Linda Place began working at AbbottLaboratories in 1986 as a biologyresearch associate. In a rather hackneyeddevelopment, she and her supervisor, Dr.Charles Harrington, got drunk at acompany Christmas party in December 1990and afterward found their way into thesame hotel bed.
[FOOTNOTE 1] The details of thisencounter are worth recalling. The Christmas party, attended byassorted Abbott scientists, chemists, andtechnicians, was at the Princessrestaurant in Libertyville, and the winewas flowing. After several hours, some ofthe revelers, including Place andHarrington, repaired to the apartment offellow worker Peggy Connerty in Evanston.Place and Harrington drove together inPlace’s Camaro because she had had toomuch to drink and Harrington was in”better shape.” More drinking followed atConnerty’s, but that apparently endedwhen the host passed out. After the Connerty shindig broke up,Place and Harrington returned to therestaurant where Harrington had left hiscar. Harrington drove Place’s carbecause, as she testified, she “wasn’tcapable of driving.” During this returntrip, Harrington suggested they go to ahotel–instead of their separate ways–after they got to his car. Place said shehad no desire to accept Harrington’sproposition but, rather inexplicably, sheand Harrington then drove to a motel intheir separate cars. A sexual encounterfollowed. The Christmas party tryst mushroomedinto a sexual affair that lasted around 6months. Place could not recall the numberof sexual encounters but did remembersome of the locations, including behind alocked door in an Abbott lab, outside ina forest preserve, and in a condominiumshe owned with her husband (Place wasmarried, as was Harrington). Place testified that the relationshipwas coercive from start to finish andthat she had sex with Harrington–over a6-month period–only because hecontrolled her performance evaluation.Harrington said the affair was entirelyconsensual and denied telling Place thatshe would get a better job evaluation ifshe had sex with him. District JudgeDavid H. Coar, in rejecting Place’ssexual harassment claim, found her to bea less than impressive witness. As to theChristmas party liaison, for example,Judge Coar found “that neither plaintiffnor Harrington is credible” but thatHarrington’s testimony was morebelievable. During the spring following theChristmas party, Abbott promoted Placefrom a grade 13 to a grade 15 scientistand, as part of routine restructuring,transferred her to a different job whereHarrington no longer was her supervisor,though she still regularly had to workwith him. In July 1991, after the affair ended,Place complained to Abbott thatHarrington was sexually harassing her.Abbott investigated, warned Harrington,set up an arrangement where Harringtonand Place could speak to each other onlyin the presence of a third party, and inOctober 1991 transferred both Harringtonand Place to other jobs where theywouldn’t have to deal with each other.Though they retained their same titles,pay, and benefits, both considered themoves demotions. Place said she lost hersupervisory responsibilities, her office,her telephone, and had to do boringlaboratory bench work. Abbott denies thatPlace’s transfer was a step down, notingthat in her new position Place performedduties previously done by a grade 17scientist and that she needed time tofamiliarize herself with her new researchproject. Place claimed that because of theaffair, the harassment, and the transfer,her emotional state deteriorated to thepoint where, in November 1991, she took amedical leave of absence. Financially,this was not too bad a deal because shereceived her full salary for 6 months andlesser benefits for 6 weeks after that.But Abbott terminates the employment ofanyone who fails to return to work fromdisability leave within one year (thoughlong-term disability payments mightcontinue thereafter), and in May 1992,when her 6 months of full-time disabilitybenefits expired, Place’s psychologistcleared her to return to work. Abbottinsisted, however, that she first undergoan independent medical examination andreferred her to an outside psychologist,John Jochem. Fearing that she was beingset up for failure, Place snapped on hertape recorder when the session withJochem began. When he balked at beingtaped, Place walked out. Because Placerefused to undergo the independentmedical examination, Abbott refused tolet her return to work. When Place failedto return to work within one year, Abbottterminated her as an employee. Unable to find another science job,Place went to law school and now is asolo practitioner in Waukegan, where shehas–apparently successfully–representedother former employees who have suedAbbott. She also filed her own ADA,ERISA, and Title VII claims againstAbbott. The ADA and ERISA claims wereknocked out on summary judgment, but theTitle VII case went to trial. Judge Coar was the finder of fact onPlace’s sexual harassment claim(involving events that occurred prior toNovember 21, 1991) and a jury was thefinder of fact on the retaliation claim(involving events that took place bothbefore and after November 21, 1991).Judge Coar found that Place had not beensexually harassed, a decision that shedoes not appeal. A plaintiff whoseunderlying discrimination claim fails maystill prevail on a claim that she wasretaliated against for complaining aboutdiscrimination, see Pryor v. Seyfarth,Shaw, Fairweather & Geraldson, 2000 WL568330 (7th Cir. May 11, 2000), and Placedid so. The jury found that Abbottretaliated against Place and awarded her$389,656 in lost wages and $125,000 incompensatory damages, for a total of$514,656. Abbott appeals that outcome.Judge Coar denied Place front pay andwould not let her pursue punitivedamages. Place cross-appeals thosedecisions. (Place had counsel at trial,but handled her appeal pro se.) Place’s retaliation claim is founded ontwo events: first, her transfer inOctober 1991 to a different position atAbbott, and second, the company’sinsistence in May 1992 that she undergoan independent medical examination, herrefusal of which led to her dismissal inDecember 1992. To understand Place’s retaliation claim,the jury obviously needed to hear aboutwhat happened before November 21, 1991.See Hennessy v. Penril Datacomm Networks,Inc., 69 F.3d 1344, 1349 (7th Cir. 1996).Judge Coar, however, allowed in the pre-November 1991 evidence not just asexplanatory background information, butalso for purposes of liability andcompensatory damages under the continuingviolation theory. As a question of lawmade in the context of denying Abbott’sRule 50 motion, we review that decisionde novo. The continuing violation theory allowsa plaintiff to reach back to get relieffor an act of discrimination thatoccurred outside the statute oflimitations by linking it as onecontinuous act with a discriminatory actthat took place within the limitationsperiod. See Miller v. American FamilyMut. Ins. Co., 203 F.3d 997, 1003-04 (7thCir. 2000); Speer v. Rand McNally & Co.,123 F.3d 658, 663-64 (7th Cir. 1997);Selan v. Kiley, 969 F.2d 560, 564-65 (7thCir. 1992). “A continuing violation isone that could not reasonably have beenexpected to be made the subject of alawsuit when it first occurred becauseits character as a violation did notbecome clear until it was repeated duringthe limitations period.” Dasgupta v.University of Wis. Bd. of Regents, 121F.3d 1138, 1139 (7th Cir. 1997). Whether the theory may be applied to thesituation at hand is unsettled. Landgraf,511 U.S. 244, which held that the changesbrought about by the Civil Rights Act of1991 were not retroactive, did notinvolve a claim that straddled November21, 1991, but rather was a case in whichthe conduct already had taken place andthe case already was pending when the newlaw took effect. On the one hand,Landgraf seems to dig a moat betweenplaintiffs seeking compensatory andpunitive damages and anything thatoccurred before November 21, 1991. On theother hand, the logic of the continuingviolation theory that stitches old andnew conduct together into one seamlessviolation for statute of limitationpurposes would seem to apply with equalforce to the nonretroactivity of a newlaw. See Leonard Charles Presberg, TheCivil Rights Act of 1991, Retroactivity,and Continuing Violations, 28 U. RichmondL. Rev. 1363, 1402-04 (1994). We havesuggested that the continuing violationtheory “is utilized only in the contextof a challenge to the timeliness of acause of action,” Taylor v. Western andS. Life Ins. Co., 966 F.2d 1188, 1196(7th Cir. 1992), but this single sentencemade in a different context is hardlydispositive. The circuits that havetackled this issue head-on have split.Compare Tomasello v. Rubin, 167 F.3d 612,620 (D.C. Cir. 1999) (“an award ofcompensatory damages for preenactmentconduct would have an impermissibleeffect”), and Caviness v. Nucor-YamatoSteel Co., 105 F.3d 1216, 1220 n.1 (8thCir. 1997) (“[w]e are not familiar withany Eighth Circuit law where the conceptof continuing violation, ordinarilyassociated with statutes of limitationsissues, has been employed to overcome anon-retroactivity rule”) with DeNovellisv. Shalala, 124 F.3d 298, 307 n.4 (1stCir. 1997) (“a continuing violationtheory could be applied to any timerequirement imposed by Title VII, whetherit be the effective date of an amendingstatute, as here, or a statute oflimitations”). Resolving this nettlesomelegal issue is unnecessary to resolvingthis appeal, however, because the twoalleged acts of retaliation against Placesimply do not fit the continuingviolation mold. We have recognized three types ofcontinuing violations: where the exactday of the violation is difficult topinpoint because the employer’sdecisionmaking process takes place over aperiod of time; where the employer has asystematic, openly espoused policyalleged to be discriminatory; and wherethe employer’s discriminatory conduct isso covert that its discriminatorycharacter is not immediately apparent.Selan, 969 F.2d at 565. The first twoscenarios clearly do not apply to thissituation and the third does not fit,either. The covert variant applies toplaintiffs who realize only with thebenefit of hindsight that they werediscriminated against. Moskowitz v.Trustees of Purdue Univ., 5 F.3d 279,281-82 (7th Cir. 1993). If, however, theplaintiff “knows or with the exercise ofreasonable diligence would have knownafter each act that it was discriminatoryand had harmed” her, the plaintiff mustsue over that act within the regularstatute of limitations. Id. at 282. Applying the continuing violation theoryto this situation would require theretaliatory nature of Place’s (pre-November 1991) internal job transfer to be sosubtle that she did not recognize it asretaliatory until the (post-November1991) independent medical examinationdemand. The continuing violation scenariomakes most sense in a sexual harassmentcase, where the first offensive commentor inappropriate touch may not alert thevictim to the harassing quality of theconduct. See Galloway v. General MotorsServ. Parts Operations, 78 F.3d 1164,1166 (7th Cir. 1996). A job transfer isquite different. Like being fired,demoted, or not promoted, a job transferis a single, significant event, not acontinuing act. See Lightfoot v. UnionCarbide Corp., 110 F.3d 898, 907 (2d Cir.1997). Unlike low-level harassment thatover time grows in intensity or incumulative effect, a job transfer is aconcrete, discrete development. IfPlace’s transfer into a different jobwhere she held the same title andreceived the same pay was retaliatory atall, its retaliatory nature wasimmediately palpable. Because Place couldhave known at the time that the transferwas retaliatory–if indeed it wasretaliatory–she cannot through thecontinuing violation theory link hertransfer to Abbott’s independent medicalexamination requirement some 8 monthslater. Consequently, the district court erredin allowing the jury to consider Place’sOctober 1991 transfer for purposes ofliability and damages. The jury’sretaliation decision should have beenbased only on the company’s demand in May1992 that she undergo an independentmedical examination, a demand that whendefied led to Place’s termination. Place argues, however, that this errorwas harmless. The jury answered “yes” toa special interrogatory that asked: “WasAbbott’s refusal to reinstate Placewithout an independent medicalexamination an act of retaliation?”Because the independent medicalexamination issue was properly within thejury’s bailiwick, and because the juryexplicitly found the examinationrequirement retaliatory, Place believesthat part of the verdict is valid. As aresult, she says that at least the$389,656 she was awarded in back payshould stand, since that part of theaward stemmed from her termination thatresulted from her refusal to undergo anunrecorded independent medicalexamination. We disagree, for two reasons. First, thejury’s finding of liability might havebeen improperly influenced by Place’seffort to prove that her transfer wasretaliatory. As we mentioned earlier, thejury would have heard this evidence inany event. Because the jury was notinstructed that this evidence could notbe taken into account in determiningliability and damages, however, whatshould have been outside the jury’spurview might have seeped into the jury’sdecision regarding liability. We willnever know whether the jury thought thejob transfer was retaliatory because nointerrogatory was given on that question,and we cannot speculate on whether thejury’s decision was rooted solely on apermissible ground or on both permissibleand impermissible grounds. Second, no reasonable jury could havefound Abbott’s independent medicalexamination requirement retaliatory. Wereview de novo a trial court’s grant ordenial of judgment as a matter of lawunder Federal Rule of Civil Procedure 50. Mathur v. Board of Trustees of S. Ill.Univ., 2000 WL 307119, *2 (7th Cir.2000). The question is whether a rationaljury could have reached the result thisjury reached. Id. In deciding thisquestion, we may not substitute our viewof contested evidence for the jury’s. Id. The record does not support aninference that Abbott was retaliating forPlace’s earlier complaints of sexualharassment by requiring her to take anindependent medical examination beforereturning to work from a long disabilityleave. Abbott required any employee whohad been out on disability leave for atleast 5 days to coordinate their returnto work with the company’s healthdepartment. The company did not requirean independent medical evaluation ofevery employee who wished to return towork from disability leave, but requiringsuch an examination was not unusual.Every year, several employees coming backfrom disability leave were first sent toindependent medical evaluations thatinvolved psychological evaluation,according to Brockton Weisenberger, atthe time Abbott’s director of corporateemployee health. Place introduced noevidence that similarly situatedindividuals were treated differently. Shepointed to records indicating that oneunidentified Abbott employee was allowedto continue to work despite refusing apsychological evaluation, but in thatcase the evaluation had been recommendedafter the employee had been voluntarilyinvolved in Abbott’s employee assistanceprogram. By contrast, Place had been outon disability leave and was required toundergo an independent medicalexamination by the company’s healthdepartment. While working at Abbott, Place appearsto have been a tempestuous, high-maintenance employee who did goodscientific work but had regular run-inswith her supervisors and co-workers. Whenone of Place’s supervisors, MetaFranklin, made a decision Place didn’tlike, Place angrily leaned forward andthreatened: “You’ll pay for that.” Franklin also testified that on anotheroccasion she saw Place threaten a co-worker, Ms. Connerty (the host, you’llrecall, of the post-Christmas party get-together), with whom she wasn’t gettingalong. Weisenberger said he was concernedthat Place was so angry at the companythat she might do harm if returned to theworkplace. Even Place’s own psychologist,Katie Gienapp, who believed Place wasready to return to work and posed nodanger, testified that she couldunderstand why an employer might want asecond opinion. We do not hold, as Abbott suggests, thatrequiring an independent medicalexamination could never constitute anadverse employment action. For example,an employer that never required men, butalways required women, to undergoindependent medical examinations beforereturning to work from disability leavewould almost certainly be discriminating.In this case, however, the evidence doesnot support the inference that Place wasbeing singled out. There also is noevidence that the independent evaluationhad been rigged against her or thatAbbott played any role in Jochem’srefusal to let Place tape-record theirsession. Abbott had a discretionarypolicy to require independent medicalexaminations when its health departmentthought they were warranted. Place’sprevious threats to other Abbottemployees, the emotional problems thatprompted her disability leave, and hercontinuing anger at the company allraised warning flags. In a business wherethe destruction of equipment and researchrecords could do great damage, and in anera when disgruntled workers all tooregularly take out their frustrationswith a gun, Abbott’s desire to get asecond opinion before welcoming Placeback to work hardly seems unreasonable.All Place had to do was spend a shortamount of time, at Abbott’s expense, witha psychologist. If she had done that, sheprobably would have gotten her job back.If Abbott still had barred the door afterthe evaluation showed she was fit toreturn to work, then she would have astrong case for retaliation. But underthese circumstances no reasonable jurycould have concluded that the company’srequirement for an independentpsychological evaluation was payback forPlace’s complaints of sexual harassmentnearly a year before. The question that remains is whetherPlace’s claim that her pre-November 1991internal transfer constitutedretaliation, which was erroneouslyconsidered by the jury the first time,must now be remanded to Judge Coar. Wethink not, again because for two reasonsno reasonable finder of fact could findthat the transfer was retaliatory. First, whether the transfer constitutedan adverse employment action is dubious.The fact that Place received the same payand benefits and held the same title inher new position does not necessarilypreclude her retaliation claim, for”adverse actions can come in many shapesand sizes.” Knox v. Indiana, 93 F.3d1327, 1334 (7th Cir. 1996) (“[n]o onewould question the retaliatory effect ofmany actions that put the complainant ina more unfriendly working environment:actions like moving the person from aspacious, brightly lit office to a dingycloset”). On the other hand, beingshifted to an essentially equivalent jobthat Place did not happen to like as muchdoes not a Title VII claim create.Williams v. Bristol-Myers Squibb Co., 85F.3d 270, 274 (7th Cir. 1996)(“[o]therwise every trivial personnelaction that an irritable, chip-on-the-shoulder employee did not like would formthe basis of a discrimination suit”). Place’s beef is that she was moved froman interesting job she liked thatinvolved overseeing several other peopleto a boring job she didn’t like and thatlacked any supervisory duties. Some ofher complaints–losing her telephone andcubicle–are too trivial to amount to anadverse employment action. Maybe her newworking quarters were not as nice, butthere is no indication they were shabbyor unpleasant. Being moved from one jobto another also does not meet the test.There was no guarantee that Place wouldremain forever in the job she held beforeher transfer. Researching, creating, andpreparing for mass productionpharmaceutical products is a dynamicbusiness that involves regularly shiftingpeople from one job to another, as oneproject is completed and another isbegun. Her most viable complaint is thatshe had diminished responsibilities.However, Place’s predecessor in the jobshe found so dull held a higher gradelevel. Place could not expect to jumpinto a new project at the top. As shebecame more familiar with her new workshe might have enjoyed it more and mightover time have gained moreresponsibilities. But she only lasted amonth before going on disability leave.Place did not have supervisoryresponsibilities in her new job, but somegrade 15 positions at Abbott involvesupervisory duties and others do not.Supervising other workers in one capacitydid not mean that person would alwayshave supervisory duties thereafter. Second, even if the new position was astep down, there is no evidence that thedecision to move Place was retaliatory.The sequence of events was: (1) Placeand Harrington have an affair, (2) Placemoves to a new position where she stillworks with Harrington but he no longer isher supervisor, (3) the relationshipsours, (4) Harrington is a pain in theneck for Place to deal with and Place’sproject suffers as a result, (5) Placecomplains that Harrington is sexuallyharassing her, (6) Abbott warnsHarrington, (7) Abbott creates anarrangement where Place and Harringtonmay interact only in the presence of athird party, (8) the project still issuffering because of the Place-Harringtonfriction, and (9) Abbott moves both Placeand Harrington into different jobs. Thefact that two people do not get alongafter their office romance sours is notsexual harassment, and an employer’sdecision to split up two workers whoseinterpersonal problems are impeding thecompany’s progress is not retaliation.One view of the evidence might suggestthat Harrington was the bigger problemand Abbott might have acted unwisely andunfairly in taking Place off the project.Title VII, though, doesn’t guard againstunwise or unfair decisions unless thosedecisions also were discriminatory orretaliatory. The end of the affair led tothe problems between Place andHarrington. It was those problems–notPlace’s complaint of sexual harassment–that in turn led Abbott to transfer themboth elsewhere. The judgment in favor of Ms. Place isREVERSED. The case is Remanded to theDistrict Court for the entry of judgmentin favor of Abbott Laboratories. :::FOOTNOTES:::
FN1 The district court found that the post-Christmasparty rendezvous was consensual. At the risk ofplaying the Grinch, however, we note that officeChristmas parties also seem to be fertile groundfor unwanted sexual overtures that lead to TitleVII complaints. See, e.g., Marshall v. CascadeUtils., 1999 WL 893578, *1 (9th Cir. 1999); Pessov. Montgomery Gen. Hosp., 1999 WL 326090, *1 (4thCir. 1999); Bryson v. Chicago State Univ., 96F.3d 912, 914 (7th Cir. 1996); Hennessy v. PenrilDatacomm Networks, Inc., 69 F.3d 1344, 1347-48(7th Cir. 1995); Morgan v. Massachusetts Gen.Hosp., 901 F.2d 186, 188 (1st Cir. 1990); King v.Board of Regents of the Univ. of Wis. Sys., 898F.2d 533, 535 (7th Cir. 1990); Duchon v. CajonCo., 1988 WL 12800, *1 (6th Cir. 1988); Jones v.Flagship Int’l, 793 F.2d 714, 716-17 (5th Cir.1986); Afrassiabian v. ProCredit Holdings, Inc.,1999 WL 605589 (E.D. Pa. 1999); Mills v. Wex-TexIndus., Inc., 991 F. Supp. 1370, 1377 (M.D. Ala.1997); Simpson v. Martin, Ryan, Andrada & Lifter,1997 WL 542701, *1 (N.D. Cal. 1997); Rivera v.City of New York, 1997 WL 539776, *1 (S.D.N.Y.1997); Corrigan v. Labrum & Doak, 1997 WL 76524,*2 (S.D.N.Y. 1997); Alvey v. Rayovac Corp., 922F. Supp. 1315, 1318 (W.D. Wis. 1996); Webb v. J.Merle Jones & Sons., Inc., 1995 WL 573432, *3(N.D. Ill. 1995); Schaffer v. Ames Dep’t Stores,Inc., 889 F. Supp. 41, 42 (D. Conn. 1995); Henryv. Gehl Corp., 867 F. Supp. 960, 966 (D. Kan.1994); Richardson v. Great Plains Mfg., Inc.,1994 WL 324553, *3 (D. Kan. 1994); Johnson v.Indopco, Inc., 834 F. Supp. 1039, 1045 (N.D. Ill.1993); Babcock v. Frank, 783 F. Supp. 800, 806-07(S.D.N.Y. 1992); Showalter v. Allison Reed Group,Inc., 767 F. Supp. 1205, 1208, 1210 (D. R.I.1991); Christoforou v. Ryder Truck Rental, Inc.,668 F. Supp. 294, 299 (S.D.N.Y. 1987).
Place v. Abbott Lab. United States Court of AppealsFor the Seventh Circuit Nos. 99-2418 & 99-2971 LINDA PLACE, Plaintiff-Appellee/Cross-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellant/Cross-Appellee. Appeals From: United States District Courtfor the Northern District of Illinois, EasternDivision ARGUED: April 21, 2000 DECIDED: June 1, 2000 Before: BAUER, KANNE, and EVANS, CircuitJudges.
