Kasper v. Saint Mary of Nazareth Hosp.

• Decision Date: 09 March 1998
• Docket Number: No. 97-1977,97-1977
• Citation: 135 F.3d 1170
• Parties: 77 Empl. Prac. Dec. P 45,442, 48 Fed. R. Evid. Serv. 1071 Frank KASPER, Plaintiff-Appellee, v. SAINT MARY OF NAZARETH HOSPITAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1170

135 F.3d 1170

77 Empl. Prac. Dec. P 45,442, 48 Fed. R. Evid.

Serv. 1071

Frank KASPER, Plaintiff-Appellee, v. SAINT MARY OF NAZARETH HOSPITAL, Defendant-Appellant.

No. 97-1977.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 4, 1997.

Decided Feb. 6, 1998.

Rehearing Denied March 9, 1998.

Christopher T. Hurley (argued), Christopher T. Hurley & Associates, Chicago, IL, for Plaintiff-Appellee.

Joshua G. Vincent (argued), Tom H. Luetkemeyer, Linda K. Horras, William G. Swindal, Hinshaw & Culbertson, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.

POSNER, Chief Judge.

The plaintiff, Frank Kasper, was assistant director of security at a Chicago hospital. In January of 1993 the hospital fired him. He brought suit under the federal age discrimination law (he was 42 when he was fired), adding a supplemental claim under Illinois law in which he charged that he had been fired in retaliation for having filed a workers' compensation claim. The case was tried to a jury, which found for the hospital on the age discrimination claim but for Kasper on the claim of retaliation, awarding him $86,000 for lost wages to the date of trial, $400,000 for lost future wages, $150,000 for emotional distress, and $75,000 in punitive damages. The hospital contends on appeal that it was entitled to judgment as a matter of law or at least to a new trial and that in any event the damages awarded were excessive.

The case was close, but there was enough evidence of retaliation to allow the issue to go to the jury. Kasper had been employed by the hospital for 19 years, at first as a security guard, later as a sergeant of guards, and since 1983 as the assistant director of security, which made him the number two man in a staff of more than 20. The hospital is in a bad neighborhood, and Kasper had been injured several times in scuffles with unruly patients and visitors. He had been an exemplary employee and had received steady merit-based raises which by the time of his dismissal had brought his salary and benefits up to $43,000. The hospital was concerned about costs, and in March of 1992 Kasper's immediate superior, Mizia, recommended the elimination of the assistant director's position, but no action was taken on his recommendation.

Kasper injured his ankle seriously in a scuffle with a patient in September of 1992. He submitted a workers' compensation claim for which he eventually received an award of $9,000, the cost of which, the record suggests, was borne at least indirectly by the hospital. When he returned to work, in December, he was able to do only light work, so he was put behind a desk to monitor the hospital's security video system. Testimony by Kasper and particularly by Velez, who was secretary to the hospital's personnel chief, Henry, and whom the hospital did not cross-examine, indicated (if it was believed) that Henry and Mizia had been angry with Kasper because of the injury. Henry was very concerned about the cost to the hospital of workers' compensation claims. According to Velez, he tried to discourage the filing of such claims by denying that they were work-related, and was upset when he learned that Kasper had received medical authorization to be off work. Velez heard Mizia say that "he would get [Kasper's] ass back to work," though there was no basis for suspecting malingering. Neither Mizia nor Henry testified that they thought he was malingering. They merely denied, contrary to the testimony of Velez and Kasper, that they had been angry at Kasper for being injured, missing work, or filing a claim. Yet during this period he received his first critical performance review; he testified that the criticism was unwarranted.

The hospital claimed that it fired Kasper merely as part of a corporate downsizing. Yet very few other employees, and none in the security staff, were fired. And shortly afterward the hospital hired two more security guards, which made the security staff larger (though by one position, not two, because Kasper's position as assistant director was not filled, and remained unfilled at the time of the trial in 1996) than before the "downsizing."

Rather than being demoted to security guard, Kasper was told that he was no longer an employee of the hospital. He testified that because of this and the general chilly atmosphere surrounding his abrupt dismissal, he did not apply to return to his old job as a security guard (the sergeants' positions having been eliminated years before). He testified that as a result of the loss of the job he was forced to declare bankruptcy and in consequence lost his house. When he recovered from his ankle injury, in the summer of 1993, he went job-hunting. He found a job as a security guard in a shopping mall. The job paid only half as much, however, as his position as the hospital's assistant director of security.

From this evidence it was possible for a rational jury to infer that Kasper was indeed fired because he filed a workers' compensation claim. Obviously the jury was not compelled to draw such an inference. Henry and Mizia testified emphatically that the claim had no connection with the decision to fire Kasper, the decision being merely an innocently delayed response to Mizia's recommendation of March 1992. But of course the jury didn't have to believe their testimony, an elementary point that the hospital ignores in its brief. The hospital seems to assume that testimony that is not specifically contradicted must be believed; this is incorrect. E.g., EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.1994); LHLC Corp. v. Cluett, Peabody & Co., 842 F.2d 928, 934-36 (7th Cir.1988); United States v. Brown, 742 F.2d 363, 366 n. 2 (7th Cir.1984); Negron v. City of Miami Beach, 113 F.3d 1563, 1570 (11th Cir.1997); Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 942 (1st Cir.1995).

If Velez's testimony was believed--and remember that the hospital did not cross-examine her, which may have led the jury to believe that the hospital itself thought she was telling the truth--then Kasper's compensation claim may have been the straw that pushed Henry to accept Mizia's recommendation of months earlier to abolish Kasper's position. It does seem suspicious that an employee who had done such good work for so many years was fired rather than merely demoted, it being clear from the hospital's action in promptly hiring two more security guards that it had a vacancy that Kasper could have filled. Not immediately, because of his injury; but there is evidence that there was enough light work (which was rotated among injured employees) to have kept him occupied until he recovered. According to Velez, Henry was concerned with controlling the costs of workers' compensation and suspicious of employees who filed such claims. Both the critical performance review and the "downsizing" could have been found to be pretextual, that is, phony; and a jury can (though it need not) infer improper motive from pretext. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 and n. 4, 113 S.Ct. 2742, 2749 and n. 4, 125 L.Ed.2d 407 (1993); Van Vlerah Mechanical, Inc. v. NLRB, 130 F.3d 1258, 1264 (7th Cir.1997); Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir.1997); Ryther v. KARE 11, 108 F.3d 832, 836-37 and n. 2 (8th Cir.1997) (en banc); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995).

The case came down to a credibility contest. If the jury believed Kasper and Velez, he won; if it believed Henry and Mizia, the hospital won. When a case turns on credibility, neither side is entitled to judgment as a matter of law unless objective evidence shows that it would be unreasonable to believe a critical witness for one side. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); Seshadri v. Kasraian, 130 F.3d 798, 801-02 (7th Cir.1997).

But since it was a close case, we must give close consideration to the hospital's claims that the judge committed errors in the conduct of the trial. Oddly, the alleged error on which the hospital's appellate counsel laid the heaviest weight at oral argument does not appear in the hospital's opening brief (or for that matter in the reply brief, but that would be too late, e.g., Employers Ins. of Wausau v. Browner, 52 F.3d 656, 666 (7th Cir.1995); United States v. Rodriguez, 888 F.2d 519, 524 (7th Cir.1989)) and is therefore waived. E.g., United States v. Beltran, 109 F.3d 365, 371 (7th Cir.1997); Pittman v. Commissioner, 100 F.3d 1308, 1310 n. 2 (7th Cir.1996); Sample v. Aldi, 61 F.3d 544, 551 n. 1 (7th Cir.1995). It is the admission into evidence of testimony that Kasper's loss of his job precipitated his declaration of bankruptcy. The hospital's briefs mention that the hospital objected to the admission of this evidence at trial, and it did, but the briefs do not argue that the judge erred in overruling the objection.

So the argument is waived, and anyway it clearly has no merit, since the evidence was germane to Kasper's claim that he suffered emotional distress as a consequence of being fired, a proper item of damages in a retaliation case under Illinois law. Kritzen v. Flender Corp., 226 Ill.App.3d 541, 168 Ill.Dec. 509, 520, 589 N.E.2d 909, 920 (1992); Sloan v. Jasper County Community Unit School Dist. No. 1, 167 Ill.App.3d 867, 118 Ill.Dec. 879, 522 N.E.2d 334 (1988); Peeler v. Village of Kingston Mines, 862 F.2d 135, 137-38 (7th Cir.1988). What is more, the hospital had and took an opportunity to counter this testimony by placing in evidence the Kaspers' joint federal income tax returns for 1992 and 1993, which showed only a $15,000 drop in the couple's income (from $70,000 to $55,000). Kasper gave what appears from the transcript to have been affecting evidence regarding his emotional reactions to being suddenly without a job at a time when his injury prevented him from effective job hunting, and the hospital does not contend...