Place v. Abbott Laboratories

• Decision Date: 01 June 2000
• Docket Number: Nos. 99-2418,s. 99-2418
• Citation: 215 F.3d 803
• Parties: (7th Cir. 2000) LINDA PLACE, Plaintiff-Appellee/Cross-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellant/Cross-Appellee. & 99-2971
• Court: U.S. Court of Appeals — Seventh Circuit

Page 803

215 F.3d 803 (7th Cir. 2000)

LINDA PLACE, Plaintiff-Appellee/Cross-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellant/Cross-Appellee.

Nos. 99-2418 & 99-2971

In the United States Court of Appeals For the Seventh Circuit

ARGUED April 21, 2000

DECIDED June 1, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 5491--David H. Coar, Judge.

Before BAUER, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

We hope this musty Title VII case is one of the last we will see in which events straddle the enactment of the Civil Rights Act of 1991. And we say good riddance to such cases for they put the district court in the delicate position of parceling out what must be decided by the judge and what may be decided by a jury. A good deal of this saga preceded the pivotal date of November 21, 1991, when the new law for the first time gave Title VII litigants the right to a jury trial and allowed plaintiffs to seek punitive and compensatory damages. 42 U.S.C. sec. 1981a. These changes in the law, of course, are not retroactive to conduct that occurred prior to November 21, 1991. Landgraf v. USI Film Prods., 511 U.S. 244 (1994).

Linda Place began working at Abbott Laboratories in 1986 as a biology research associate. In a rather hackneyed development, she and her supervisor, Dr. Charles Harrington, got drunk at a company Christmas party in December 1990 and afterward found their way into the same hotel bed.¹ The details of this encounter are worth recalling.

The Christmas party, attended by assorted Abbott scientists, chemists, and technicians, was at the Princess restaurant in Libertyville, and the wine was flowing. After several hours, some of the revelers, including Place and Harrington, repaired to the apartment of fellow worker Peggy Connerty in Evanston. Place and Harrington drove together in Place's Camaro because she had had too much to drink and Harrington was in "better shape." More drinking followed at Connerty's, but that apparently ended when the host passed out.

After the Connerty shindig broke up, Place and Harrington returned to the restaurant where Harrington had left his car. Harrington drove Place's car because, as she testified, she "wasn't capable of driving." During this return trip, Harrington suggested they go to a hotel--instead of their separate ways-- after they got to his car. Place said she had no desire to accept Harrington's proposition but, rather inexplicably, she and Harrington then drove to a motel in their separate cars. A sexual encounter followed.

The Christmas party tryst mushroomed into a sexual affair that lasted around 6 months. Place could not recall the number of sexual encounters but did remember some of the locations, including behind a locked door in an Abbott lab, outside in a forest preserve, and in a condominium she owned with her husband (Place was married, as was Harrington).

Place testified that the relationship was coercive from start to finish and that she had sex with Harrington--over a 6-month period--only because he controlled her performance evaluation. Harrington said the affair was entirely consensual and denied telling Place that she would get a better job evaluation if she had sex with him. District Judge David H. Coar, in rejecting Place's sexual harassment claim, found her to be a less than impressive witness. As to the Christmas party liaison, for example, Judge Coar found "that neither plaintiff nor Harrington is credible" but that Harrington's testimony was more believable.

During the spring following the Christmas party, Abbott promoted Place from a grade 13 to a grade 15 scientist and, as part of routine restructuring, transferred her to a different job where Harrington no longer was her supervisor, though she still regularly had to work with him.

In July 1991, after the affair ended, Place complained to Abbott that Harrington was sexually harassing her. Abbott investigated, warned Harrington, set up an arrangement where Harrington and Place could speak to each other only in the presence of a third party, and in October 1991 transferred both Harrington and Place to other jobs where they wouldn't have to deal with each other. Though they retained their same titles, pay, and benefits, both considered the moves demotions. Place said she lost her supervisory responsibilities, her office, her telephone, and had to do boring laboratory bench work. Abbott denies that Place's transfer was a step down, noting that in her new position Place performed duties previously done by a grade 17 scientist and that she needed time to familiarize herself with her new research project.

Place claimed that because of the affair, the harassment, and the transfer, her emotional state deteriorated to the point where, in November 1991, she took a medical leave of absence. Financially, this was not too bad a deal because she received her full salary for 6 months and lesser benefits for 6 weeks after that. But Abbott terminates the employment of anyone who fails to return to work from disability leave within one year (though long-term disability payments might continue thereafter), and in May 1992, when her 6 months of full-time disability benefits expired, Place's psychologist cleared her to return to work. Abbott insisted, however, that she first undergo an independent medical examination and referred her to an outside psychologist, John Jochem. Fearing that she was being set up for failure, Place snapped on her tape recorder when the session with Jochem began. When he balked at being taped, Place walked out. Because Place refused to undergo the independent medical examination, Abbott refused to let her return to work. When Place failed to return to work within one year, Abbott terminated her as an employee.

Unable to find another science job, Place went to law school and now is a solo practitioner in Waukegan, where she has--apparently successfully--represented other former employees who have sued Abbott. She also filed her own ADA, ERISA, and Title VII claims against Abbott. The ADA and ERISA claims were knocked out on summary judgment, but the Title VII case went to trial.

Judge Coar was the finder of fact on Place's sexual harassment claim (involving events that occurred prior to November 21, 1991) and a jury was the finder of fact on the retaliation claim (involving events that took place both before and after November 21, 1991). Judge Coar found that Place had not been sexually harassed, a decision that she does not appeal. A plaintiff whose underlying discrimination claim fails may still prevail on a claim that she was retaliated against for complaining about discrimination, see Pryor v. Seyfarth, Shaw, Fairweather & Geraldson,212, F.3d 976 (7th Cir. 2000), and Place did so. The jury found that Abbott retaliated against Place and awarded her $389,656 in lost wages and $125,000 in compensatory damages, for a total of $514,656. Abbott appeals that outcome. Judge Coar denied Place front pay and would not let her pursue punitive damages. Place cross-appeals those decisions. (Place had counsel at trial, but handled her appeal pro se.)

Place's retaliation claim is founded on two events: first, her transfer in October 1991 to a different position at Abbott, and second, the company's insistence in May 1992 that she undergo an independent medical examination, her refusal of which led to her dismissal in December 1992.

To understand Place's retaliation claim, the jury obviously needed to hear about what 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 as explanatory background information, but also for purposes of liability and compensatory damages under the continuing violation theory. As a question of law made in the context of denying Abbott's Rule 50 motion, we review that decision de novo.

The continuing violation theory allows a plaintiff to reach back to get relief for an act of discrimination that occurred outside the statute of limitations by linking it as one continuous act with a discriminatory act that took place within the limitations period. See Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1003-04 (7th Cir. 2000); Speer v. Rand McNally & Co., 123 F.3d 658, 663-64 (7th Cir. 1997); Selan v. Kiley, 969 F.2d 560, 564-65 (7th Cir. 1992). "A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997).

Whether the theory may be applied to the situation at hand is unsettled. Landgraf, 511 U.S. 244, which held that the changes brought about by the Civil Rights Act of 1991 were not retroactive, did not involve a claim that straddled November 21, 1991, but rather was a case in which the conduct already had taken place and the case already was pending when the new law took effect. On the one hand, Landgraf seems to dig a moat between plaintiffs seeking compensatory and punitive damages and anything that occurred before November 21, 1991. On the other hand, the logic of the continuing violation theory that stitches old and new conduct together into one seamless violation for statute of limitation purposes would seem to apply with equal force to the nonretroactivity of a new law. See Leonard Charles Presberg, The Civil Rights Act of 1991, Retroactivity, and Continuing Violations, 28 U. Richmond L. Rev. 1363, 1402-04 (1994). We have suggested that the continuing violation theory "is utilized only in the context of a challenge to the timeliness of a cause of action," Taylor v. Western and S. Life Ins. Co., 966 F.2d 1188, 1196 (7th Cir. 1992), but this single sentence...