Timm v. Progressive Steel Treating, Inc.

• Citation: 1998 WL 89625,137 F.3d 1008
• Decision Date: 04 March 1998
• Docket Number: No. 97-2803,97-2803
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 321, 72 Empl. Prac. Dec. P 45,232 Charmaine TIMM, Plaintiff-Appellee, v. PROGRESSIVE STEEL TREATING, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1008

137 F.3d 1008

76 Fair Empl.Prac.Cas. (BNA) 321,

72 Empl. Prac. Dec. P 45,232

Charmaine TIMM, Plaintiff-Appellee, v. PROGRESSIVE STEEL TREATING, INC., Defendant-Appellant.

No. 97-2803.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1998.

Decided March 4, 1998.

Rene Hernandez (argued), Belvidere, IL, for Plaintiff-Appellee.

James D. Zeglis (argued), Rockford, IL, for Defendant-Appellant.

Before CUDAHY, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

A jury awarded punitive but not compensatory damages in this sex-discrimination suit. Progressive Steel Treating, the employer, contends that punitive damages cannot be awarded when the jury determines that the plaintiff did not suffer injury.

Charmaine Timm, the plaintiff, testified that co-worker Craig Tunnell frequently snuck up from behind her and grabbed or pinched her buttocks. Less frequently Tunnell would run his hand up her thighs. Sexual comments and propositions from Tunnell were everyday fare, according to Timm, despite her protests. A reasonable jury could conclude that the combination of unwelcome remarks and battery were sex discrimination under Meritor Savings Bank, fsb v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), and Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). But an employer is responsible for a co-worker's acts only if it knew (or should have known) about the problem. Zimmerman v. Cook County Sheriff's Department, 96 F.3d 1017 (7th Cir.1996). Managers at Progressive testified variously that they did not know about Timm's situation, or that they knew but that Timm had refused to identify her assailant. Timm testified, however, that she complained to Ed Jones, a supervisor, about Tunnell by name; Jones confirmed this and testified that he relayed the complaint to Mike McCormick, one of the firm's top executives, who did nothing with the information. According to Jones, McCormick was unconcerned because he thought that Timm was not going to stay with the firm for long. Todd Alton, manager of the plant where Timm worked, remarked that Timm "leads guys on" and disregarded her complaint. Tunnell testified that no one in management ever asked him to stop harassing Timm. The jury was entitled to believe the testimony of Timm, Tunnell, and Jones and to conclude that Progressive knew about the harassment, knew who the perpetrator was, and decided not to lift a finger. Jim Simonovich, a member of the family that owns the firm, testified that he heard about the sexual harassment but did nothing because Timm "never filed a formal complaint"--a bizarre response, for all of the firm's owner-managers testified that Progressive followed an open-door system and lacked a formal complaint procedure. A jury might conclude that an employer deserves to pay punitive damages for indifference to its employees' rights when it invites them to approach supervisors informally, then ignores problems for lack of "formal complaints". Cf. Smith v. Wade, 461 U.S. 30, 45-49, 103 S.Ct. 1625, 1634-37, 75 L.Ed.2d 632 (1983). The size of the award ($15,000 after a remittitur) cannot be described as excessive in relation to the harm that unchecked sexual harassment can inflict.

Timm quit about six months after starting work, and the jury may have thought that she left to take a better job, rather than because of Tunnell's boorish conduct. That could explain the decision not to award back pay. The lack of compensatory damages is harder to reconcile with the award of punitive damages--though the fact that Timm, a former prison guard, is no stranger to rough treatment, coupled with the lack of an instruction about nominal damages, may play a role. At all events, Progressive did not ask the district judge to order the jury to continue deliberating until it came up with consistent verdicts. Instead it used the lack of compensatory damages as the fulcrum of an argument that punitive damages are legally impossible. One answer could be that there is no priority among inconsistent verdicts; if the verdicts cannot be reconciled, the whole case must be retried. American Casualty Co. v. B. Cianciolo, Inc., 987 F.2d 1302, 1305 (7th Cir.1993). A judge cannot treat one verdict (here, the lack of a compensatory award) as the jury's "true" disposition to which the other verdict must be conformed; one could as readily say that the award of punitive damages requires a compensatory award too. If inconsistency escapes notice until after the jury has disbanded, the proper thing to do is to hold a new trial. Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963); Turyna v. Martam Construction Co., 83 F.3d 178 (7th Cir.1996); Will v. Comprehensive Accounting Corp., 776 F.2d 665, 677-78 (7th Cir.1985). A retrial is unnecessary here, however, because punitive damages are not inconsistent with the lack of compensatory damages.

Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344 (7th Cir.1995), and Lebow v. American Trans Air, Inc., 86 F.3d 661, 669 n. 11 (7th Cir.1996), hold that punitive damages are available under 42 U.S.C. § 1981a (part of the Civil Rights Act of 1991) even when the jury does not assess compensatory damages. Progressive thinks that these cases are distinguishable because the...