Bruno v. City of Crown Point, Ind., 90-3164

• Citation: 950 F.2d 355
• Decision Date: 31 January 1992
• Docket Number: No. 90-3164,90-3164
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 623, 57 Empl. Prac. Dec. P 41,100, 60 USLW 2394 Micolette M. BRUNO, Plaintiff-Appellee, v. CITY OF CROWN POINT, INDIANA and George W. Pyle, Jr., individually and in his capacity as Chief of Crown Point Emergency Medical Service, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 355

950 F.2d 355

57 Fair Empl.Prac.Cas. (BNA) 623,

57 Empl. Prac. Dec. P 41,100, 60 USLW 2394

Micolette M. BRUNO, Plaintiff-Appellee, v. CITY OF CROWN POINT, INDIANA and George W. Pyle, Jr.,

individually and in his capacity as Chief of Crown

Point Emergency Medical Service,

Defendants-Appellants.

No. 90-3164.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 1991.

Decided Nov. 27, 1991.

Rehearing and Rehearing En Banc

Denied Jan. 31, 1992.

Ivan E. Bodensteiner, argued, Valparaiso, Ind., for plaintiff-appellee.

Elizabeth A. Knight, argued, Patrick J. Fanning, Knight, Hoppe, Fanning & Knight, Des Plaines, Ill., Michael K. Lulich, Modesto, Reynolds & McDermott, Chicago, Ill., for George W. Pyle, Jr.

Elizabeth A. Knight, Patrick J. Fanning, Knight, Hoppe, Fanning & Knight, Des Plaines, Ill., Michael K. Lulich, Modesto, Reynolds & McDermott, Chicago, Ill., Timothy R. Sendak, Sendak, Sendak, Neff & Rominger, Crown Point, Ind., for City of Crown Point, Ind.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

MANION, Circuit Judge.

Paramedic applicant Micolette M. Bruno sued the City of Crown Point and George W. Pyle for sex discrimination under 42 U.S.C. § 1983 and 42 U.S.C. § 2000e, et seq. (Title VII) after Pyle hired a man, Thomas Walters, for an available paramedic position with the Crown Point Emergency Medical Services Department. In a trial before a magistrate judge, the jury awarded her $30,000 compensatory damages and no punitive damages. Pursuant to Title VII, the magistrate judge ordered Crown Point to hire her as a paramedic with full seniority and benefits from October 1987 and awarded her $30,000 in pretrial lost wages and $10,000 in post-trial lost wages. The magistrate judge also granted Bruno approximately $20,000 in attorneys' fees and costs. Crown Point and Pyle appeal alleging reversible error in an improper jury instruction, challenging the order requiring Crown Point to hire Bruno even if that means displacing a present paramedic and attacking the jury verdict as against the weight of the evidence. Because substantial evidence does not support the jury's conclusion that Bruno's sex was a determining factor in Pyle's decision to hire Walters and not Bruno, we reverse.

I.

In August of 1987, Bruno was working full-time as a paramedic at Methodist Hospital in Crown Point, which included supervising and performing cardiovascular stress testing for the department of electrodiagnostics. Early in August, she stepped down from her supervisory position, which often required her to work 60-hour weeks, and returned to the 40-hour-per-week paramedic position she had been promoted from a year earlier. She testified that she resigned for "[p]ersonal reasons ... I wanted to spend more time with my family and my father who had just been diagnosed of terminal cancer." At the time, Bruno was the mother of a two-year-old son; her husband worked full-time as a paramedic for the Gary Fire Department. ¹ Bruno also worked as an ambulance paramedic for the Town of Merrillville Emergency Medical Service from 1984 to 1987. She resigned that position in late 1987 after her hours were reduced from "almost full-time" to part-time.

Shortly after cutting back her duties at Methodist Hospital, Bruno, along with 12 others, applied for the open paramedic position at Crown Point. Bruno testified that she sought to return to working full-time on an ambulance, something her present job did not involve. She said she intended to continue working full-time at Methodist Hospital and hoped to gain regular overtime work for Crown Point if selected for that job.

During cross-examination, Pyle used a blackboard to demonstrate the type of weekly schedule Bruno would have faced had she been hired for the Crown Point position. Paramedics for Crown Point worked one 24-hour shift every three days. Thus, they worked seven shifts every three weeks, or an average of two and one-third 24-hour shifts per week (56 hours). Even without the part-time Merrillville position (from which she did resign later in the year), with the 40-hour-per-week position at the hospital, she would be working close to an average of 100 of the 168 hours in each week. Bruno testified that paramedics can rest during their 24-hour shifts when there are no calls and that many paramedics work two jobs.

Bruno filled out an application on August 24, 1987, in the company of two Crown Point paramedics with whom she was acquainted. She used one of them, Gary Gayle, as a personal reference on her application. Gayle testified that while filling out the application, Bruno said she would file a sex discrimination lawsuit against Crown Point if she did not get the job. Kathyleen Meyer, another friend of Bruno's, testified that Bruno said she was thinking about filing a "sex discrimination" claim because she had heard "something about a girl that had filed a Portage lawsuit and had won." Bruno admitted she talked with Gayle and Meyer about filing a sex discrimination lawsuit against Crown Point but claimed that she mentioned it only after her interview and after she heard rumors that she was not among the three finalists for the position.

Out of 13 applicants, Pyle selected Bruno and seven men for interviews. ² Bruno met with Pyle for an interview on September 14, 1987. During the interview, Pyle asked Bruno a series of questions about her family circumstances. Bruno testified that Pyle asked her how many children she had and whether it was "time to have more children." He also asked about child care and how Bruno's husband would feel about her going back on 24-hour shifts. Bruno testified that she told Pyle she had discussed the paramedic position with her husband, she had a son, and her son was cared for by her mother-in-law who lived with them. Bruno also told Pyle that she was not planning on having any more children. Pyle's version of the interview was similar, except that he categorically denied ever suggesting that Bruno was about due for some more children. During the interview, Pyle wrote "No problem w/24/48 hr shifts" and "No problem w/child care" on Bruno's application.

In explaining his questioning of Bruno, Pyle testified that it was important for him to know about a prospective employee's child-care arrangements because he wanted the paramedics with children "to come to work knowing that their kids are taken care of" so they "can concentrate on doing their job and not have to worry about the safety and welfare of their children." Pyle further testified that he was particularly concerned with these family issues in Bruno's case because of her unique family circumstances. If Bruno was hired as a paramedic, both she and her husband would be working 24-hour shifts. "This could really work a hardship on the family. And depending on the way the scheduling is arranged, it's entirely possible that the kids might not see mom or dad maybe four waking hours every couple of days."

Pyle testified that he would have these concerns about an applicant's family whether the applicant was male or female. He testified that he asked all the applicants about their family status. Pyle's notations on the application of one male candidate included "Wife--LPN@ St. Anthony's" and "1 son." However, Pyle also testified that he did not recall asking any male applicant how his spouse felt about the 24-hour shifts or whether they expected to have children in the future. In earlier deposition testimony, Pyle had stated that he did not ask the male applicants these questions.

After interviewing all the applicants, Pyle discussed the applicants with the six paramedics in the Department; he wanted to know who the paramedics thought they could work with. He also put together a list of the qualified applicants, ranking them according to the number of years experience they had as paramedics. At the top of the list was Ron Reed, followed by Robert Mason and Bruno. Last on the qualified list, with about one year of experience as a paramedic, was 22-year-old Thomas Walters. Pyle selected Reed and Walters as finalists and had background checks made on them. During Reed's interview, Pyle had noted on his application that Reed had "good experience" but "may be too old--set in his ways." ³ Pyle's notes on Walter's application included, "Has very little experience as a paramedic. Could be more easily molded into our way of doing things."

Pyle ultimately hired Walters to fill the paramedic position. Pyle testified that there were several reasons Walters received the job: first, as with the other applicants interviewed, he met the minimum requirement of presently being a paramedic; second, in Pyle's subjective viewpoint, Walters carried himself well in the interview and seemed like he would fit in; third, Pyle thought Walters' newness to being a paramedic might be an advantage because they would be able to train him in "the Crown Point way of doing things"; and fourth, Walters received favorable comments from other paramedics on the Crown Point staff who worked well with Walters when he interned with the Crown Point emergency team.

At the close of evidence, on February 13, 1990, the magistrate judge issued his jury instructions. One instruction stated that Pyle and the mayor, who had ultimate decisionmaking authority for the City, were to be considered City policymakers for purposes of the § 1983 claim. The jury returned a $30,000 verdict against the defendants, but refused to award punitive damages. The magistrate judge entered judgment on June 2, 1990. In his order, the magistrate judge ruled that the § 1983 judgment was against Pyle alone and set aside the verdict against the City because Pyle was not a policymaker for the City. Pursuant to his Title VII injunctive powers, the magistrate judge ordered the City to instate Bruno as a paramedic with full benefits and seniority from October of 1987. The magistrate judge added $10,000 to the judgment to compensate Bruno for...