Summary
upholding the district court's grant of defendant's motion for judgment as a matter of law stating that "the evidence [is] simply insufficient to support a finding that [defendant]" violated plaintiff's rights
Summary of this case from Vega v. Chi. Park Dist.Opinion
Nos. 11–3000 11–3109.
2013-07-10
Otto MAY, Jr., Plaintiff–Appellant/Cross–Appellee, v. CHRYSLER GROUP, LLC, Defendant–Appellee/Cross–Appellant.
Deanne S. Medina, Medina Law, Oak Park, IL, for Plaintiff–Appellant/Cross–Appellee. Thomas Henderson Dupree, Jr., Gibson, Dunn & Crutcher LLP, Washington, DC, for Defendant–Appellee/Cross–Appellant.
Deanne S. Medina, Medina Law, Oak Park, IL, for Plaintiff–Appellant/Cross–Appellee. Thomas Henderson Dupree, Jr., Gibson, Dunn & Crutcher LLP, Washington, DC, for Defendant–Appellee/Cross–Appellant.
Before BAUER, KANNE, and TINDER, Circuit Judges.
PER CURIAM.
More than fifty times between 2002 and 2005, Otto May, Jr., a pipefitter at Chrysler's Belvidere Assembly Plant, was the target of racist, xenophobic, homophobic, and anti-Semitic graffiti that appeared in and around the plant's paint department. Examples, unfortunately, are necessary to show how disturbingly vile and aggressive the messages were: “Otto Cuban Jew fag die,” “Otto Cuban good Jew is a dead Jew,” “death to the Cuban Jew,” “fuck Otto Cuban Jew fag,” “get the Cuban Jew,” and “fuck Otto Cuban Jew nigger lover.” In addition to the graffiti, more than half-a-dozen times May found death-threat notes in his toolbox. Different medium, same themes: “Otto Cuban Jew muther fucker bastard get our message your family is not safe we will get you good Jew is a dead Jew say hi to your hore wife death to the jews heil hitler [swastika].” The harassment was not confined to prose. May had his bike and car tires punctured, sugar was poured in the gas tanks of two of his cars, and, most bizarrely, a dead bird wrapped in toilet paper to look like a Ku Klux Klansman (complete with pointy hat) was placed in a vise at one of May's work stations. May contacted the local police, the FBI, the Anti–Defamation League, and, of course, complained to Chrysler. And Chrysler responded: The head of human resources at the Belvidere plant met with two groups of skilled tradesmen (like May) and reminded them that harassment was unacceptable, a procedure was implemented to document the harassment, efforts were made to discover who was at the plant during the periods when the incidents likely occurred, and a handwriting analyst was retained and used. Unfortunately, the harasser or harassers were never caught.
May sued Chrysler in 2002 (relatively early in the cycle of harassment) and alleged a variety of claims under Title VII and 42 U.S.C. § 1981. Only his hostile work environment claim survived summary judgment and made it to trial. And at trial there were only four contested issues: First, whether someone other than May was responsible for the harassment. (Chrysler, obviously, would not be liable for self-inflicted “harassment.”) Second, whether Chrysler took steps reasonably calculated to end the harassment. Third, to determine if punitive damages were appropriate, whether Chrysler recklessly disregarded May's federally-protected rights. And fourth, the amount of damages, if any.
The jury concluded that May carried his burden and awarded him $709,000 in compensatory damages and $3.5 million in punitive damages. Responding to Chrysler's post-verdict motions, the district court sided with May on the first two issues: May had presented sufficient evidence for the jury to conclude that Chrysler was liable for the hostile work environment. The district court believed, however, that the jury's compensatory damages award was excessive. Rather than returning to trial on compensatory damages, May accepted remittitur to $300,000. On the third issue, punitive damages, the district court sided with Chrysler, and concluded that May failed to present sufficient evidence for the jury to decide that Chrysler recklessly disregarded his federally-protected rights. The verdict on punitive damages was therefore vacated. Both parties appealed. Chrysler argued that it should not be held liable at all; May argued that the jury was entitled to conclude not only that Chrysler was liable but that it was reckless, and so the jury's verdict on punitive damages should be reinstated.
When we first heard this case, the panel unanimously concluded that the district court correctly rejected Chrysler's motion for judgment as a matter of law on liability, and a majority decided that the district court also should have rejected its motion for judgment as a matter of law on punitive damages. Judge Bauer dissented from the latter ruling. Chrysler sought rehearing, and the panel granted rehearing limited to punitive damages. We now reaffirm our ruling regarding liability, and after the benefit of the arguments on rehearing, we conclude that the district court properly granted Chrysler's motion for judgment as a matter of law on punitive damages. We therefore affirm the district court's judgment.
I. Background
To understand the particular nature of May's harassment, it is helpful to know a little about May's family story. We therefore begin, briefly, with May's grandfather, who moved to Cuba from Germany around 1911. Although he was Jewish, he married a Protestant woman from Cuba, and May's father was raised as a Protestant. Two years after Fidel Castro took power, when May was eleven, May and his family moved to Florida. When May was seventeen, he converted to Judaism so he could marry his girlfriend (she was Jewish). He has since divorced and remarried several times, but his connection to Judaism has endured, and he identifies as a Messianic Jew. Since 1988, May has worked at Chrysler's Belvidere Assembly Plant, in Belvidere, Illinois, as a pipefitter, repairing and maintaining equipment used to paint and assemble cars.
The events that produced this case started early in 2002 with vandalism to May's car and then to the loaner cars he used as replacements. The first car broke down on his drive home from work—sugar in the gas tank, according to the mechanic. He drove a second car for a few weeks before sugar was discovered in its tank too. That second car also had a tire disintegrate, as did the tire of a third car he drove while the first two were in the shop. All this was reported to the local police and to Chrysler in February 2002. Three months later, May drove over a homemade spike hidden by rags and placed under his tire. He reported the incident to security and police the next day. May didn't notice a response from Chrysler, so he complained to a person in human resources at Chrysler's headquarters in Michigan. Approximately ten days later, Kim Kuborn, a human resources supervisor who eventually became the principal HR person on May's case, called May and told him he could park in the salaried lot, which is monitored by cameras. This solution didn't much please May, however, because a Chrysler security officer told him that some of the cameras did not record, that some did not work, and that the ones that did were not monitored.
The threatening messages started in the first half of 2002, with words “fuck” and “sucks” written on the tag of May's coveralls. In June 2002, a heart with “Chuck + Otto” was found on the wall of a materials elevator. (Chuck was one of May's closest friends at the plant.) May complained to management, but the writing was not removed until August 29. Two days later, May saw “Cuban fag Jew” on the wall of the same elevator. May reported the graffiti and it was cleaned four days later, on September 3. That same day, May found a printout of a chain email titled, “Yes, I'm a Bad American” tucked into one of the drawers of his toolbox. The document had some handwritten additions. For example, next to a printed line that said, “I think being a minority does not make you noble or victimized, and does not entitle you to anything” was handwritten “Cuban sucks cock fag.” Next to the printed line “I've never owned a slave, or was a slave, I didn't wander forty years in the desert after getting chased out of Egypt. I haven't burned any witches or been persecuted by the Turks and neither have you! So, shut-the-Hell-up already” was written “Cuban Jew [swastika] kill Jew Heil Hitler.” May told his supervisor, labor relations, security and provided Chrysler a copy of the note. May found another note in his toolbox on September 12. It said: “no one can help you fucken Cuban Jew We will get you Death to the Jews Cuban fag Die.” Chrysler and the police were informed. Additional threatening graffiti targeting May was found on September 19 and 22.
On September 26, the head of human resources, Richard McPherson, and the head of labor relations, Bob Kertz, held two meetings (one with the first and third shifts, one with the second shift) with about sixty people from the skilled trades. McPherson addressed the groups about Chrysler's harassment policy. Some didn't appreciate the reminder; they were upset that skilled trades was being singled out and complained that McPherson was telling them they could not have “fun” at work anymore. The meeting was just a meeting; McPherson did not meet with the attendees or interview them individually, even those who were upset by his lecture. May, for his part, was upset that McPherson gathered so few people. More than a thousand plant employees had access to the areas where the notes and graffiti were found. May told McPherson and others that he thought Chrysler needed to do more. In particular, he thought installing surveillance cameras and swipe-key door locks (to monitor who was coming and going from particular areas) would be a good idea.
Just a few days after the meeting, on September 30, there was more graffiti: “Otto Cuban Jew die.” At least five similar incidents with the same threatening theme—“a good Jew is a dead Jew”—occurred between September 30 and November 11. On December 7, May found another menacing note in his toolbox. This one told May that his “time is short” and proclaimed “death to the Jews” and “we hate the Jews” signing off with a “Heil Hitler” and swastika.
Soon after receiving the December 7 note, feeling that nothing was being done to stop the harassment, May contacted the Anti–Defamation League, a civil rights organization focused on combating anti-Semitism. In a letter dated December 26, 2002, a representative of the Anti–Defamation League wrote to Chrysler's general counsel in Michigan to inform Chrysler that “Mr. May has reportedly been the victim of numerous death threats placed in his toolbox, scrawled on his lunchbox and in the freight elevator as well as in other areas.” The letter reminded Chrysler that the Equal Employment Opportunity Commission had issued a reasonable cause determination but that the threats continued, and encouraged Chrysler to take all necessary remedial action.
In January 2003, the letter from the Anti–Defamation League reached Scott Huller, a staff advisor in Chrysler's corporate diversity office. Huller's responsibilities included investigating civil rights issues at Chrysler's manufacturing facilities. According to Huller's testimony, he had not heard of May until he received the letter from the Anti–Defamation League. The letter prompted Huller to travel to the plant to interview May, and they met for a few hours on January 16 and 17. May told him he genuinely feared for his life and was distressed and depressed. Once again, May recommended security cameras. According to May, Huller was focused on getting a list of suspects. He wanted names. The first day, May refused. At trial, May explained that his attorney told him not to “point the finger” at anybody without direct proof. The second day, however, after consulting with his attorney, May named nineteen employees he had some reason to suspect. May also gave the police a list of names.
It is not necessary to explain why May named each person that he did—the investigation is over—but we will say a few words about three people on May's list who were mentioned frequently at trial: Eldon Kline, John Myers, and Dave Kuborn. Eldon Kline was on the list because he was fired (briefly) for assaulting a Hispanic employee, he had made racist remarks to May, and May had filed a grievanceagainst him. John Myers had also made racist comments to May and was close friends with Kline. May saw Myers' car (suspiciously, May testified) near his own shortly before he discovered it was vandalized, and so suspected his involvement. As for Dave Kuborn (married to Kim Kuborn in HR), there was no testimony that he had problems working with minorities, like Kline and Myers; he made May's list because of their personal history. Dave Kuborn once instructed May to hold open a solenoid on a malfunctioning tire machine so the assembly line would not have to stop. This was dangerous, apparently, and May was upset that he was made to do it. He complained to Chrysler and reported the incident to the Occupational Safety and Health Administration (better known as OSHA) and, eventually, Dave Kuborn was disciplined.
So Huller got what he wanted from May—a list of names. Huller, however, did not interview anyone on the list or instruct the local HR employees to do so (and none did). Instead, Huller used the list to create a template for further investigation. The template was intended to help HR use plant entry and exit data (“gate-ring records”) to determine who was in the plant at the times when incidents might have occurred. Completing the spreadsheet was to be Kim Kuborn's job, not Huller's, who did no more substantive work on May's case.
Four days after Huller's meeting with May, more graffiti appeared. And later that same month (January 2003), May reported that someone was calling his work extension and making derogatory remarks in a disguised voice (essentially the same message as the notes and graffiti). May reported the calls but nobody from Chrysler discussed the details with him.
In March, there were two graffiti incidents and May found another death-threat note in one of his toolbox drawers. The note seemed to comment on the absence of harassment in February: “Otto Cuban Jew muther fucker not forget about you your time is coming we will get YOU death to the Jews [swastika].” Chrysler's incident report documented that a police officer who came to the plant to collect the note said that a security camera should be installed to record future harassment.
The rest of 2003 followed a similar pattern.
• April: graffiti (2 incidents)
• May: graffiti (2 incidents)
• June: graffiti (3 incidents), a death-threat note, the tire of the bike May used to get around the plant was slashed, and the changing mat outside his locker was vandalized
• July: graffiti (6 incidents)
• August: graffiti (5 incidents)
• September: graffiti (5 incidents)
• October: graffiti (2 incidents, hateful as ever: “Hang the Cuban Jew”)
• November: graffiti (2 incidents) and a death-threat note
• December graffiti (1 incident)
Sometime in 2003, Chrysler implemented a protocol for handling incidents involving May. According to McPherson (the head of HR at the plant), the person who found the graffiti or note was to notify HR and security, and a picture would be taken. After the incident was documented, someone from HR or security would talk to whoever found the graffiti or the note to establish when it was found. If the incident involved graffiti, the area would be cleaned. Pictures of the incident and details about when and where it happened (including when the area was last seen without graffiti) were collected by Kim Kuborn, who kept a detailed but not quite complete record of May's harassment in a large binder. As already mentioned, Kuborn was also responsible for reviewing gate-ring records to determine who was recorded as being at the plant when she believed a particular incident may have occurred.
In May 2003, Chrysler's lawyers retained Jack Calvert, a forensic document examiner. Chrysler initially gave Calvert pictures (or copies of pictures) of graffiti. Soon Chrysler provided Calvert with an original note from June 2003, which Kim Kuborn collected quickly after its discovery, before the police arrived on the scene to take it themselves, and he went to the police to view more originals. Chrysler also gave him logbooks containing daily entries from many employees on different shifts. After reviewing this material, Calvert told Chrysler's counsel that he thought only one person was responsible for the graffiti and notes, but that he couldn't identify who. Based on what he had seen from the logbooks, he wanted additional “exemplars” (samples of handwriting) from approximately sixty employees. Chrysler responded with a variety of documents, including old job applications. (To jump ahead a bit, Calvert continued to collect exemplars throughout 2004 and into 2005. He ultimately issued his report in July 2007. It was inconclusive. More on this soon.)
The incidents continued through 2004 and ended in 2005:
• January, 2004: graffiti (5 incidents)
• February: death-threat note in May's toolbox
• March: graffiti (2 incidents)
• October: graffiti (2 incidents), May struck in the back with a flying object, submission of swastika in “Team Belvidere Logo Contest,” and May found a dead bird dressed as Ku Klux Klansman in a vise
• February, 2005: May's car vandalized, graffiti (3 incidents), and a death-threat note (“Otto you muther fucker bastard your family is not safe Cuban Jew fuck scum Jew kike nigger lover kikes are varmints spics are roaches niggers are parasites Exterminate all kill them all We hate fucken Jews niggers spics [swastika]”)
• June: graffiti and death-threat note on May's toolbox
• December: graffiti on May's toolbox
Chrysler's outward response to May's harassment involved McPherson's September 2002 group meetings, Huller's January 2003 interviews with May, ongoing documentation of the incidents, and (usually) prompt cleaning of graffiti. Behind the scenes, Kim Kuborn reviewed gate records to see who may have been around the plant when incidents occurred and Calvert was given more handwriting samples to analyze. Chrysler also wanted the jury to know that the employees at the Belvidere plant valued May as a colleague and cared about him as a person. For example, Kim Kuborn testified that “this behavior was completely unacceptable in our eyes, and we wanted to stop it and find out who was responsible for it. We certainly didn't want this kind of activity going on in the plant and making one of our team members as uncomfortable as it clearly was.”
Beyond cataloguing the actions it took in response to May's harassment, and somewhat at odds with the empathy expressed by some employees for May's predicament, Chrysler's defense had another (rather unsettling) theme: May did it all to himself. Chrysler kept this defense in the background and at times seemed to deny it was part of its defense at all. For example, when confronted about whether Chrysler really believed May was the culprit, Kim Kuborn said, “I have no evidence that he did this himself.” Chrysler left it primarily to Jack Calvert, the forensic document examiner, and Rosalind Griffin, a psychiatrist hired by Chrysler to analyze May, to make the case against May, to argue that May was not being victimized by death threats and suffering because of Chrysler's inaction, but that, more likely, Chrysler was actually the victim of May's lies.
We have already summarized the mechanics of Jack Calvert's operation. He was given samples of graffiti and notes and known exemplars (handwriting samples from plant employees), and carefully compared the two. After his initial look at the materials, there were approximately sixty employees he could not rule out, and he requested more samples of their writing. He was given more samples and, during 2004 and 2005, whittled his list down to three. He was never able to reach a conclusion about who did it, but he could only say that there was more evidence “that [this person] did author the material than that he did not” about one employee—Otto May, Jr. Calvert's testimony was challenged, of course. The jury heard that Calvert's list of possible authors was reduced not just by his own professional opinion but also by Chrysler informing him that twenty-six employees could be removed from consideration because they were not at the plant at the time of one of the incidents. The jury heard that those removed included Eldon Kline, John Myers, and Dave Kuborn. The jury also heard testimony that May was not eliminated as a possible perpetrator even though he, too, was not present when some of the incidents occurred. Chrysler never gave that information about May to Calvert. Chrysler did, however, give Calvert a large number of samples of May's writing, including May's notes documenting the harassment where, according to May's testimony, he tried to copy graffiti exactly as printed.
Griffin, the psychiatrist hired by Chrysler, also had a tough assessment of May's role in the harassment. According to Griffin, May has a number of personality disorders. She testified that he is histrionic, narcissistic, paranoid, and, less technically, deceptive. As she put it, he is the kind of person who will “scream louder and louder wolf, wolf, wolf, until they have your attention until you can see that they are very important” and who assumes “people are out to get you and that they're also doing things to persecute you and that they are planning your demise, and there's a conspiracy to bring about your downfall.” In Griffin's opinion, May did not suffer from depression and had no post-traumatic stress disorder. “[T]he injuries that he alleges was caused by his employer were his own demons within himself.” May's psychotherapist, Dana Kiley, who May had been seeing for eight years, told a different story about May. In Kiley's opinion, May had been seriously depressed, and he did not think May had any of the personality disorders Griffin did—not histrionic, narcissistic, or paranoid. He did not think May was deceptive or that the harassment was a hoax.
After a seven-day trial, the jury also rejected Chrysler's implication. And beyond that, the jury decided that Chrysler's efforts to stop the harassment were inadequate, and substantially so, and accordingly returned a large verdict for May. As explained in our opening summary, the jury awarded May $709,000 in compensatory damages and $3.5 million in punitive damages. The compensatory damage award was remitted to $300,000 and the district court granted Chrysler's Rule 50(b) motion for judgment as a matter of law on punitive damages. Both parties appeal.
II. Discussion
We review de novo a district court's grant or denial of a Rule 50(b) motion for judgment as a matter of law. Ekstrand v. Sch. Dist. of Somerset, 683 F.3d 826, 828 (7th Cir.2012); Khan v. Bland, 630 F.3d 519, 523 (7th Cir.2010). Thus, like the district court, we decide whether the jury had “a legally sufficient evidentiary basis” for its verdict. Fed.R.Civ.P. 50(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 300–01 (7th Cir.2009). To do so, we consider all the evidence in the record and “construe the facts strictly in favor of the party that prevailed at trial.” Schandelmeier–Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir.2011). That includes drawing all reasonable inferences in that party's favor and disregarding all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151, 120 S.Ct. 2097;Schandelmeier–Bartels, 634 F.3d at 376. Although we must determine that more than “a mere scintilla of evidence” supports the verdict, Hossack v. Floor Covering Assoc. of Joliet, Inc., 492 F.3d 853, 859 (7th Cir.2007), we do not make credibility determinations or weigh the evidence, Reeves, 530 U.S. at 150, 120 S.Ct. 2097. In other words, our job is to decide whether a highly charitable assessment of the evidence supports the jury's verdict or if, instead, the jury was irrational to reach its conclusion. See, e.g., Von der Ruhr v. Immtech Int'l, Inc., 570 F.3d 858, 868 (7th Cir.2009).
A. Liability
To prevail on his hostile work environment claim, May had to prove that he was subject to unwelcome harassment based on his race, religion, or national origin, that it was sufficiently severe or pervasive to create a hostile or abusive work environment, and that there is a basis for employer liability. See, e.g., Williams v. Waste Mgmt., 361 F.3d 1021, 1029 (7th Cir.2004); Mason v. S. Ill. Univ., 233 F.3d 1036, 1043 (7th Cir.2000). Of these, the only contested issue at trial and on appeal is employer liability. Chrysler would not be liable, of course, if May's harassment was self-inflicted. If May clears that basic hurdle, because his claim alleges harassment by coworkers, Chrysler could be liable for the hostile work environment if it did “not promptly and adequately respond to employee harassment.” Sutherland v. Wal–Mart Stores, Inc., 632 F.3d 990, 994 (7th Cir.2011). That means, it needed to “respond in a manner reasonably likely to end the harassment.” Id. at 995 (citing Porter v. Erie Foods Int'l, Inc., 576 F.3d 629, 637 (7th Cir.2009)). What is “reasonably likely to end the harassment,” of course, depends on “the particular facts and circumstances of the case.” McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 480 (7th Cir.1996). And those “facts and circumstances” include the “gravity of the harassment alleged.” Id. It should go without saying that a reasonable response to taunting or insults may be an unreasonable response to death threats or physical violence. Finally, we recognize that success or failure stopping the harassment does not determine whether an employer is liable. Nevertheless, “the efficacy of an employer's remedial action is material to [a] determination whether the action was reasonably likely to prevent the harassment from recurring.” Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir.2005).
In this case, the jury was presented ample evidence to conclude that Chrysler did not “promptly and adequately” respond to the harassment. Consider only the death-threat notes and graffiti. By June 2002, there had been two relatively minor incidents. The graffiti was not pleasant, but it had not yet turned threatening. Its tenor started to change at the end of August when “Cuban fag Jew” appeared. A few days later, May found the “Yes, I am a Bad American” note in his toolbox. That note, recall, included, among other things, the phrase “kill Jew.” Approximately one week later, on September 12, May received a more alarming threat: “no one can help you fucken Cuban Jew We will get you Death to the Jews Cuban fag Die.” A full two weeks later, Chrysler held two short meetings with about sixty employees total. Within days of those meetings, the graffiti and death threats resumed. There were more than half-a-dozen incidents between the McPherson meetings and the next notable action by Chrysler in January 2003, when Scott Huller, prompted by a letter from the Anti–Defamation League, traveled from Chrysler's corporate offices in Michigan to interview May. Huller came away from those meetings with May's list of suspects. Huller took that information and created a template for HR at the plant to use in its investigation. But nobody on May's list was interviewed. Within days of Huller's meetings with May, there was more graffiti. And soon after that graffiti, there were threatening calls to May on his work extension. There were seven more incidents—including another death-threat note in May's toolbox—before Chrysler took the next step in its investigation, retaining Jack Calvert, the handwriting analyst. That was in May 2003. Every month for the rest of 2003 brought more graffiti, death-threat notes, or both.
For the purposes of Chrysler's liability, we can stop here. During the first year of written threats and harassment, what had Chrysler done? They held a meeting. They interviewed May. And, one year in, they hired Calvert. Did that amount to a “prompt and adequate” response to multiple racist and anti-Semitic death threats? Especially in light of the gravity of the harassment, the jury was presented with more than enough evidence to conclude that Chrysler had not done enough. Chrysler, of course, characterizes its efforts differently. As it has it, the company was like a duck on a river, looking unperturbed but paddling like crazy beneath the surface. Kim Kuborn, for instance, testified that she was all-but consumed by May's case and that she had never worked near as much on any other HR matter. Maybe that's true. But the jury certainly did not have to believe that her efforts at documentation with the gate-ring records were “adequate” or, even if it thought her efforts were adequate, that they started “promptly” enough for Chrysler to avoid liability.
In addition to hearing take-it-or-leave-it testimony about Chrysler's behind-the-scenes efforts, the jury heard about what Chrysler did not do. Two things stand out. First, the jury heard that Chrysler did not interview anyone on May's list. Not one person. When an employee has been subjected to repeated threats over the course of many months and the employer has a list of names, the employer's investigator should talk to some of those people—or at least a jury would not be irrational to think so. And perhaps that would be asking too much of Chrysler if it had explained to the jury that it had a different approach to the investigation that was also reasonably likely to be effective. See Williams, 361 F.3d at 1030 (an employer's response need not be perfect or “textbook” to avoid liability for a hostile work environment). But the jury heard nothing of the sort. It heard that Chrysler documented the incidents and used gate-ring records to narrow the field of potential suspects. In the face of repeated vicious death threats, a jury could conclude that Chrysler's document-and-narrow approach was not good enough.
Second, Chrysler did not install a single surveillance camera. May asked Chrysler to install cameras and the police made the same suggestion. Chrysler's response was consistent: The plant is too massive, four million square feet, the size of a terminal at O'Hare International Airport. It is just not possible to cover it with cameras. What's more, the union would (probably) not allow it. Installing cameras with non-union labor would violate the contract with the union. And if cameras were somehow put up with union labor, if that could be negotiated, the perpetrator would know where the cameras were, and so would avoid them easily. But Chrysler's claims about what the union would allow and what was feasible were undermined by testimony that there was no hard rule that cameras could not be used, but only that the union would require notice, perhaps even something as simple as a sign: “surveillance cameras in use.” And, more importantly, Chrysler's cameras-not-possible position was undermined by the fact that in 2008 it did put up a camera (neatly concealed in a fake emergency-lighting fixture) to catch someone destroying company property.
As in the 2008 case, May's situation did not require an encompassing surveillance system. A single camera covering May's large toolbox (a tool chest, really)—where most of the threatening notes were found—would have been an important step. McPherson, the HR manager, testified that he considered cameras and that he even discussed the issue with the president of the union. According to McPherson, the union president said that if the camera caught someone doing something wrong, and if that employee were terminated, the union would grieve the termination. The parties dispute whether that means the union would grieve the termination of someone making racist death threats or if it would grieve the termination of someone else caught doing something improper, like sleeping on the job. Here, we look at the evidence in the light most favorable to May. But regardless of how we interpret McPherson's comments about which dismissals the union would grieve, Chrysler still had an obligation to take steps reasonably calculated to end the harassment. It is not excused from taking those steps because it is concerned about friction with the union. Even if we assume (implausibly) that the dismissal of May's harasser would only have been temporary—that he would have to be rehired after the grievance process—or even if we assume that the camera would not have caught the harasser or would have been discovered and torn out, it would have been a step reasonably likely to end, reduce, or deter the harassment.
Although we mention Chrysler's decisions not to interview and not to put up a camera, we understand that we do not “sit as a super-personnel department.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 978 (7th Cir.2004). We certainly do not, but in deciding this appeal we are required to assess the response of the actual personnel department. We did not conjure the ideas of interviewing the employees May considered suspects (or those Chrysler did) or of installing cameras; evidence about why Chrysler did not do those things was presented at trial. The jury had the right to consider that evidence—evidence of exactly what options Chrysler had and entertained—in deciding whether Chrysler took actions reasonably calculated to end the harassment. The evidence easily supports the jury's decision that Chrysler did not.
What about the idea that May himself was the culprit? Calvert, the most important witness on this point, did not conclude that May was the author but only that there was more evidence that May was the author than that he was not. And Griffin, the psychiatrist, testified that May was psychologically disposed, capable, or perhaps inclined, to commit such an astounding deception. That was evidence the jury could have run with but did not. That it did not is unsurprising in light of the testimony from Chrysler employees that they liked May, thought he was truthful, part of the team, and did not think he would have “harassed” himself. And there are also May's own denials. So, to be sure, Chrysler presented some evidence of May's guilt, but that evidence certainly did not (and does not) force any particular conclusion. At most, it raised a question. It was for the jury to answer, and it did, and we will not (and on these facts cannot) second-guess that judgment here. Ekstrand, 683 F.3d at 828–29 (“The point is, we are generally forbidden from reexamining the facts found by the jury at trial.”).
B. Punitive Damages
May can recover punitive damages only if he presented sufficient evidence for the jury to conclude that Chrysler acted with “malice or with reckless indifference to [his] federally protected rights.” 42 U.S.C. § 1981a(b)(1). To act with “malice” or “reckless indifference,” “an employer must at least [act] in the face of a perceived risk that its actions will violate federal law.” Kolstad v. Am. Dental Assoc., 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). No evidence of “egregious” or “outrageous” conduct by the employer is required, although, of course, such a showing could support a conclusion that the employer acted with the requisite mental state. Id. at 535, 538, 119 S.Ct. 2118. “ ‘[A] positive element of conscious wrongdoing is always required.’ ” Id. at 538, 119 S.Ct. 2118 (quoting C. McCormick, Law of Damages 280 (1935)). If May proves that Chrysler acted with the requisite malice or reckless indifference, Chrysler may avoid liability for punitive damages if it can show that it engaged in good-faith efforts to comply with Title VII. Id. at 545, 119 S.Ct. 2118;Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir.2001).
We don't disagree with the district judge's determination that the jury's punitive damages verdict was without a legally sufficient evidentiary basis. While Chrysler could have done more and undertaken different measures, its actions did not evince a reckless disregard for May's federally protected rights. To the contrary, Chrysler employed several strategies to stop and prevent the harassment of May. When May's cars were vandalized in early 2002, Chrysler allowed him to park in the salaried lot, which is monitored, albeit incompletely, by cameras. Chrysler had all supervisors meet with their employees to review Chrysler's anti-harassment policy. And in September 2002, McPherson held a pair of meetings with the skilled trades in the paint department about Chrysler's harassment policy. In January 2003, Huller met with May over two days and obtained a list of the names of persons May suspected might be involved. From this list, Huller created a template for use in Chrysler's investigation. In 2003, Chrysler implemented a protocol for handling incidents against May, which included prompt clean-up of graffiti, documentation of the incidents, taking photographs if possible, notification to Human Resources and security, and discussions with the person or persons who discovered the graffiti or note and any other persons in the area when the graffiti or note was found. The paint department area manager, Thomas Harvey, and his supervisors were involved in implementing the protocol.
Chrysler worked with its security team to increase their presence in area walk-throughs and heightened the supervisors' and managers' awareness and attentiveness to the harassment. Management increased its presence with walk-throughs as well. Kuborn maintained a detailed, albeit incomplete, record of harassment of May. She conducted “dozens” of time record and gate-ring records analyses to determine who was present at the plant when a particular incident may have occurred. Kuborn also reviewed “orphan reports,” which are electronic records that reflect an employee's entering the plant when he is not scheduled to work, in an effort to determine who might have been involved in a given incident. Although no formal interviews were conducted, there were many informal conversations with persons who were in the areas involved. Kuborn explained that “there were many other conversations that happened that didn't end up in the binder because they didn't contain any useful information.”
When the harassment did not stop, Chrysler continued and even increased, to some extent, its efforts to protect May. In April 2003, when graffiti appeared in a remote locker room that was difficult to monitor, Chrysler moved the lockers to an open area near the maintenance shop where they could more easily be monitored. Beginning in May 2003, Chrysler conducted diversity training to raise awareness among all employees. Also in May 2003, Chrysler retained a handwriting analyst and continued to utilize his expertise in 2004 and 2005. Then in early August 2003, when Steve Hughes took over as paint shop manager, Kuborn met with him to provide him some history on May's situation. Hughes held town hall meetings with his employees in all three shifts in which he introduced himself and discussed the importance of a good work environment. Hughes also addressed May's situation, stating that the harassment needed to stop and “that [he] would fire the person if [he] found [him].” The evidence showed that while far from perfect, Chrysler's actions did have a positive effect on the harassment: the harassment's frequency gradually decreased from one year to the next, and eventually ceased in December 2005.
The record supports the district judge's determination that Chrysler's failure to comply with Title VII by preventing the harassment against May was not malicious or reckless. Chrysler had a written anti-harassment policy, which is relevant to the assessment of its good-faith efforts, though not sufficient by itself to insulate it from punitive damages liability. Hertzberg v. SRAM Corp., 261 F.3d 651, 663 (7th Cir.2001); Bruso, 239 F.3d at 858. Chrysler also provided training to its employees and encouraged them to come forward with any information that they might have about the harassment of May. Chrysler involved “about 20 people” ranging from hourly employees to corporate office personnel in its efforts to stop and prevent the harassment of May. Kuborn testified that she spent approximately three hours a day on May and that she and McPherson discussed the May situation “probably on a daily basis”—whether they were “doing enough,” “doing everything that [they] possibly could,” and whether “there [was] something that we were not considering that we should have been.” Kuborn could not recall any other employment matter involving one person that involved more time, focus, and angst on her part. Similarly, McPherson could not recall any other situation at Chrysler where “we did more over a prolonged period of time together as a team to try to work through an issue.” Indeed, Chrysler considered other measures, for example, an undercover investigator and additional surveillance cameras, but decided not to utilize them. The district court was correct to conclude that the evidence is simply insufficient to support a finding that Chrysler acted with “malice or reckless indifference” to May's “federally protected rights.”
To be sure, Chrysler could have done more to stop the harassment. But given the situation that it faced—an anonymous harasser, an assembly plant covering four million square feet, and a three-shift-a-day operation, Chrysler's response was enough as a matter of law to avoid punitive damages liability.
III. Conclusion
The district court's judgment finding in favor of May and against Chrysler on liability and finding in favor of Chrysler and against May on punitive damages and vacating the jury's punitive damages award is Affirmed.