Date: 07-07-2018

Case Style:

Case Number: 16-2291,16-3390

Judge:

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Uche Asonye

Defendant's Attorney: Katherine A. Manuel, Joseph E. Tilson, Timothy Alan Wolfe

Description: Anthony Robinson and Timothy
Spangler, police officers employed by the University of Illinois
at Chicago Police Department (“Department”), brought claims
against the University of Illinois Board of Trustees and four
individuals for race‐based discrimination, harassment and
retaliation. The district court disposed of all but one of the
claims through summary judgment. Robinson then prevailed
at trial on a claim for retaliation against his supervisor, Alfred
Perales, recovering nominal damages. The district court denied
Robinson’s motion for a new trial and to alter the judgment.
The court also declined to award attorneys’ fees to Robinson
and denied Perales’s motion for judgment as a matter of law.
Robinson, Spangler and Perales all appeal. We affirm in part
and vacate and remand in part.
I.
“Once a jury has spoken, reviewing the record as a whole,
‘the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations
or weigh the evidence.’” Gracia v. SigmaTron Int’l, Inc., 842
F.3d 1010, 1018 (7th Cir. 2016) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). We discuss this
standard more fully below and to the extent that we are
considering the facts as found at trial, that is the standard we
employ. The appeal also challenges the grant of summary
judgment on two counts, and for that purpose we similarly
construe the facts in favor of the nonmoving parties, drawing
all reasonable inferences in their favor.
Nos. 16‐2291 & 16‐3390 3
Robinson, who describes himself as biracial, began working
as an officer with the Department in 2008.1 Perales, a lieutenant
who is Hispanic, was his direct supervisor. Perales reported to
Division Commander Frank Cappitelli (who is white), and
Cappitelli reported to Chief John Richardson (who is African‐
American). In late January 2012, Perales asked Robinson why
he did not shave his facial hair in compliance with the Department’s
grooming policy. Robinson had brought in a doctor’s
note seeking an exemption from the shaving requirement
because of a skin condition.2 The note was deemed inadequate
and Perales directed Robinson to visit the University’s Health
Services Department to obtain an exemption.
In mid‐February, Robinson met with Perales again to
discuss the shaving issue. Lieutenant Eric Hersey, who is
African‐American, was also present at this meeting. Perales
1 In his deposition, Robinson explained that his father is black and his
mother is white. R. 61‐2, at 14.
2 Robinson has a form of folliculitis, a painful and disfiguring skin
condition that “most often occurs in the beard and neck areas of black men
with tightly curled hair who shave.” The condition occurs when facial hair
penetrates the skin before leaving the hair follicle or when the hair leaves
the follicle and then curves back into the skin. The resulting inflammation
can lead to infections and scarring. “The best preventive treatment is to stop
shaving and allow the hair to grow. When the hairs are longer, they do not
curl back and puncture the skin.” See https://www.merck
manuals.com/home/skin‐disorders/hair‐disorders/ingrown‐beard‐hairs
(last visited June 26, 2018). The prevalence of the condition in African‐
American men is reported to be between 45 and 85%. See Dermatologic
Conditions in Skin of Color: Part I I , https://www.
aafp.org/afp/2013/0615/p859.html (last visited June 26, 2018).
4 Nos. 16‐2291 & 16‐3390
decided to tell Robinson that his inquiry into the shaving
requirement was not racially based and so he described to
Robinson his past experiences with racism:
[Robinson] came and sat at my desk and basically
said that he felt that I was picking on him because of
his ethnicity, that he was African American, at
which point I related to him, “Stop right there. Let
me tell you how things have been in my career.”
And I related a story to him about how early on in
my career I was approached by both UIC officers
and Chicago police officers, and I refer to it as the
“good‐old‐boy network,” and they used to tell me—
and I used the N word, I used the word “nigger,”
although it’s very offensive to me to even repeat it,
I used it in the context to say that officers used to
say, “We don’t back those N word—we don’t hang
out with those guys, you shouldn’t do that.”
And my response to him, and I’m speaking to
Officer Robinson, was that I used to tell them,
meaning the UIC and CPD officers, that would use
that type of language that I didn’t condone it, that I
didn’t appreciate them talking like that around me.
I considered myself to be a Hispanic, also a minority,
and it was offensive to me then. So I then related
to Officer Robinson, “So, please, Anthony, don’t put
that moniker on me. That’s not what I’m about.”
Nos. 16‐2291 & 16‐3390 5
R. 61‐4, at 103–04 (Deposition of Alfred Perales).3 In Robinson’s
version of this conversation, Perales recounted that Chicago
police officers used to say to him that “We don’t back n‐‐‐‐rs
up, you know, we don’t help n‐‐‐‐rs,” and Perales claimed that
he told those officers, “That’s not me.” Tr. at 65. Robinson
denied that he was the person who raised the issue of racism,
instead asserting that Perales gave this speech gratuitously
after Robinson asked why his doctor’s note was insufficient
proof of his condition.
After the meeting, Lieutenant Hersey, who was shocked by
Perales’s use of this “ugly” epithet, told Perales that it was
inappropriate for a supervisor to use that word in that setting.
Hersey did not report the incident because he assumed that
Perales was in “report‐writing mode,” where officers sometimes
have to repeat the exact words used by others in a report
or in a conversation with a state’s attorney. But Hersey
believed that Perales, as a supervisor, should not have used
that word with a subordinate in this situation.
Unfortunately, despite Perales’s denial that he was the kind
of racist who used the word “n‐‐‐‐r,” Robinson presented
evidence that Perales was that kind of racist. Several weeks
after the February discussion, in March 2012, Perales again
3 We include this highly objectionable word once because it is the slur
actually employed by Perales (he concedes his use of the word on this first
occasion), and because persons conducting research on case law relevant to
the use of this word in employment cases must be able to find applicable
precedent. We will hereafter use “n‐‐‐‐r” in every instance where the word
was alleged to have been spoken, and we will use the euphemistic
“n‐word” where that is the actual term used by the parties.
6 Nos. 16‐2291 & 16‐3390
called Robinson to his office. Robinson told Perales that he had
scheduled a doctor’s appointment, and then invited Perales to
look at the bumps and scars on his face caused by shaving.
Perales responded, “[O]h, yeah, I see it, it must be the n‐‐‐‐r in
you.” Another officer, Stephen Pawlik, who was standing in
the hallway, overheard Perales’s comment.
Although Robinson did not complain about Perales’s first
use of this slur, in mid‐March he submitted a grievance
through the Metropolitan Alliance of Police about the second
occurrence. He was then asked to file a sworn complaint as
part of the UICPD disciplinary process, and he did so on May
29, 2012. Internal Affairs completed its investigation into the
incident in June, and recommended a five‐day suspension for
Perales. Chief Richardson instead imposed a twenty‐day
suspension.
During the investigatory period and after Perales returned
from his suspension, Robinson noticed that Perales was
subjecting him to a high level of scrutiny and following him
while he was on duty. Spangler, the watch commander for
Robinson’s shift, and Pawlik, Robinson’s frequent patrol
partner, also noticed that Perales was keeping a closer watch
on Robinson than he was on other officers. Shortly after
Robinson filed his grievance, Perales and Hersey directed
Spangler to “go against” Robinson and Pawlik and “get some
shit on them and write them up.” They also told Spangler, who
had authority as a sergeant and commander of the third watch,
not to give Robinson and Pawlik anything they wanted or
asked for such as time off or special assignments. Hersey said
that Spangler had to take action so that Perales would seem
uninvolved. Spangler replied that he would treat all officers
Nos. 16‐2291 & 16‐3390 7
the same, and he did not comply with the directive. Another
officer reported to Robinson that Perales told the officer that
Robinson and Pawlik needed to “watch [their] asses.” Robinson
reported this remark in a second grievance and filed a
complaint with Internal Affairs asserting that Perales had
threatened him. Perales was found not to have engaged in any
wrongdoing but was ultimately reassigned to another division
where he was no longer Robinson’s direct supervisor. According
to Robinson, Perales was transferred to Internal Affairs, the
division charged with investigating the kinds of complaints
that Robinson had lodged against Perales. In late 2012, Robinson
was passed over for a promotion to sergeant.
After refusing to take action against Robinson and Pawlik,
Spangler received two unwarranted notices of infraction under
the disciplinary process, each of which put him in fear of losing
his job. The first notice was rescinded and, after Spangler filed
a grievance about it, Chief Richardson concluded that the
notice of infraction was unfounded. The Chief also decided
that the second notice was “not sustained.” Following these
incidents, Spangler was bumped out of his position as third
watch commander by Cappitelli, who first discussed his
decision with Perales. Spangler filed both a grievance and
charge of retaliation related to his demotion from the command
position on the third watch.
Robinson and Spangler filed a nine‐count complaint against
Perales, Hersey, Cappitelli, Richardson, and the Board of
Trustees of the University of Illinois. Robinson asserted claims
of racial harassment (Count I), racial discrimination (Count II),
and retaliation (Count III) against the Board under Title VII
and against the individual defendants under section 1981.
8 Nos. 16‐2291 & 16‐3390
Robinson also alleged violation of his equal protection rights
(Count IV) under section 1983 against the individual defendants.
Spangler brought claims for retaliation (Count V) and
race discrimination (Count VI) against the Board under Title
VII and against the individual defendants under section 1981.
Spangler also asserted a violation of the equal protection clause
(Count VII) against the individual defendants under section
1983, and a claim under the Illinois Whistleblower Act (Count
VIII) against all the defendants. Finally, Robinson brought a
claim for retaliation under the Family and Medical Leave Act
(Count IX) against all defendants. The defendants moved for
summary judgment and the district court granted judgment in
favor of the defendants on all claims except for Robinson’s
claim against Perales and the Board for retaliation. That claim
went to trial, where the jury found against Perales and in favor
of the Board, awarding Robinson nominal damages of one
dollar. The district court subsequently denied Robinson’s
motion for a new trial and to alter the judgment. The court also
declined to award attorneys’ fees to Robinson and denied
Perales’s motion for judgment as a matter of law. Robinson,
Spangler and Perales all appeal.
II.
On appeal, Robinson contends that the court erred when it
granted summary judgment in favor of the defendants on his
claim for discrimination based on hostile environment.
Robinson also asserts that the court erred during the trial when
it found that the Board could escape liability for the retaliation
committed by Perales. Robinson further argues that the jury
was provided with improper verdict forms and that the court
incorrectly concluded that he was not entitled to attorneys’
Nos. 16‐2291 & 16‐3390 9
fees. Spangler challenges the district court’s grant of summary
judgment in favor of the defendants on his claim for retaliation.
Perales cross‐appeals in order to challenge the district court’s
refusal to grant him judgment as a matter of law on Robinson’s
retaliation claim.
A.
Robinson sued both Perales and the Board for retaliation.
The jury found against Perales but for the Board on this claim.
Robinson argues on appeal that, because Perales was a
supervisor, a finding of liability for Perales requires a finding
of liability against the Board, citing Volk v. Coler, 845 F.2d 1422
(7th Cir. 1988), in support. That case noted that an employer is
strictly liable for harassment by supervisory personnel who
have the power to hire, fire, or promote, and that an employer
is liable for harassment by nonsupervisory employees only
when it has actual or constructive notice of the harassment. 845
F.2d at 1436. See also Vance v. Ball State Univ., 646 F.3d 461,
469–70 (7th Cir. 2011), aff’d, 570 U.S. 421 (2013) (employers are
strictly liable for harassment inflicted by supervisors, where
supervisors are persons with power to directly affect the terms
and conditions of the plaintiff’s employment primarily through
the authority to hire, fire, demote, promote, transfer, or
discipline the employee, but employers can assert an affirmative
defense when the harassment does not result in a tangible
employment action.).
But Robinson did not request any instructions allowing the
jury to impute liability against Perales to the Board. There was
no instruction, for example, telling the jury how to decide if
Perales met the definition of “supervisor.” Nor did any
10 Nos. 16‐2291 & 16‐3390
instruction direct the jury to hold the Board liable if it found
against Perales and determined that Perales met the definition
of “supervisor.” Instead the jury was instructed to consider the
liability of each defendant separately. Special verdict forms
were presented for each defendant, asking the jury, among
other things, whether Robinson proved by a preponderance of
the evidence that he suffered a materially adverse employment
action by each defendant. The jury answered “yes” to that
question on the verdict form for Perales and “no” on the
verdict form for the Board. Robinson’s failure to present to the
jury this theory of strict liability for the employer amounts to
a waiver of the claim. Fox v. Hayes, 600 F.3d 819, 841–42 (7th
Cir. 2010) (plaintiff waived theory of liability on appeal where
the theory was not raised in the district court and the jury was
not instructed on it).
If that failure to request appropriate jury instructions and
the failure to object to the instructions and verdict forms
employed were not enough to constitute a waiver of this issue,
there is more. During deliberations, the jury sent out a note
asking about this very issue:
THE COURT: All right. Here is the latest message I
received at 3:16: “Judge Leinenweber, is the jury
able to find for the Board of UIC but against defendant
Alfred Perales? Foreperson, … .” The answer is
“yes.” Any objection if I say that?
[COUNSEL FOR PLAINTIFF]: Can you read the
question again, Judge?
Nos. 16‐2291 & 16‐3390 11
THE COURT: “Is the jury able to find for the Board
of UIC but against defendant Alfred Perales?”
[COUNSEL FOR PLAINTIFF]: Yes.
[COUNSEL FOR DEFENDANTS]: I think that’s
accurate.
THE COURT: Pardon?
[COUNSEL FOR DEFENDANTS]: I think that is
accurate.
THE COURT: Okay. I’ll say “yes.” Okay, Thank you.
R. 117, Tr. at 627. Counsel for Robinson expressly waived the
issue now raised by conceding during this exchange that the
jury could find against Perales and in favor of the Board.
United States v. Smith, 818 F.3d 299, 302 (7th Cir. 2016) (counsel
affirmatively waives any challenge to a court’s response to a
jury question when counsel indicates unmistakable approval
for the court’s proposed answer to the jury); United States ex rel.
Absher v. Momence Meadows Nursing Ctr., Inc., 764 F.3d 699, 712
(7th Cir. 2014) (a party waives any theory not presented to the
jury even if the theory is legally sound and supported by the
evidence at trial).
Robinson similarly waived the challenge he raises on
appeal to the special verdict forms. Robinson contends that the
special verdict forms were vague and improperly suggestive.
Robinson did not raise this objection on the record in the
district court. Although he asserts that he did not have an
adequate opportunity in the district court to object to the
verdict forms, the record indicates that the court allowed both
sides adequate opportunities to object to the jury instructions
12 Nos. 16‐2291 & 16‐3390
and verdict forms. MMG Financial Corp. v. Midwest Amusements
Park, LLC, 630 F.3d 651, 659 (7th Cir. 2011) (failing to object to
a special verdict form on particular grounds waived the
argument as to those grounds on appeal); Orix Credit All., Inc.
v. Taylor Mach. Works, Inc., 125 F.3d 468, 477–78 (7th Cir. 1997)
(same). In any case, there is nothing improper with the verdict
forms used. The form directed the jury to “[s]tate the amount
of Plaintiff’s actual damages: $ _______ (state the amount or, if
you find that Plaintiff’s damages do not have a monetary
value, write in the nominal amount of One Dollar ($1)).”
Nothing in this wording suggested that the plaintiff’s damages
did not, in fact, have a monetary value, as Robinson contends.4
B.
Robinson also challenges the district court’s grant of
summary judgment in favor of the defendants on his claim for
discrimination based on a hostile environment. To succeed on
a claim for hostile environment, a plaintiff must demonstrate
that: (1) he was subject to unwelcome harassment; (2) the
harassment was based on race (or another protected category);
(3) the harassment was severe or pervasive to a degree that
4 Our finding that Robinson waived his objections to the jury instructions
and verdict form should not be construed as an endorsement of their
language regarding nominal damages. At the defendants’ suggestion, the
district court employed phrasing from the Eighth Circuit pattern instructions.
Our circuit’s pattern instructions do not use this language, which
might be misunderstood as steering a jury toward an award of nominal
damages when damages are difficult to calculate. The Seventh Circuit’s civil
pattern instruction 3.10 instead makes clear that difficulty in assigning a
dollar value to physical, mental and emotional pain and suffering does not
preclude substantial monetary awards for such losses, when appropriate.
Nos. 16‐2291 & 16‐3390 13
altered the conditions of employment and created a hostile or
abusive work environment; and (4) there is a basis for employer
liability. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
66–72 (1986); Johnson v. Advocate Health & Hosps. Corp., — F.3d
—, —, 2018 WL 2753066, *8 (7th Cir. June 8, 2018); Alamo v.
Bliss, 864 F.3d 541, 549 (7th Cir. 2017). In determining whether
conduct is severe or pervasive enough to alter the conditions
of employment, courts must consider the severity of the
alleged conduct, its frequency, whether it is physically threatening
or humiliating (or merely offensive), and whether it
unreasonably interferes with the employee’s work performance.
Johnson, — F.3d at —, 2018 WL 2753066 at *8; Scruggs v.
Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009). Without
considering the circumstances as a whole, the district court
concluded that a few instances of the use of this particular
epithet were not significant enough to meet the standard for
hostile environment.
We disagree. “Whether harassment was so severe or
pervasive as to constitute a hostile work environment is
generally a question of fact for the jury.” Johnson, — F.3d at —,
2018 WL 2753066, at *8. If a reasonable jury could find that the
conduct was severe or pervasive, then the claim must go to
trial. Perales’s multiple uses of the word n‐‐‐‐r in combination
with his heightened scrutiny of Robinson and his call to others
to take action against Robinson are sufficient to create a triable
issue for a jury on whether the harassment was severe or
pervasive enough to constitute a hostile work environment.
First, the district court misstated the applicable legal
standard, declaring that the conduct at issue must be “severe
and pervasive” rather than “severe or pervasive.” The require14
Nos. 16‐2291 & 16‐3390
ment is disjunctive, not conjunctive; the standard may be met
by a single extremely serious act of harassment or by a series
of less severe acts. Hall v. City of Chicago, 713 F.3d 325, 330 (7th
Cir. 2013); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th
Cir. 2001).
Second, we have noted more than once that, in light of its
threatening use throughout American history, this particular
epithet can have a highly disturbing impact on the listener.
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271 (7th Cir.
2004); Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th
Cir. 2004). See also Virginia v. Black, 538 U.S. 343, 355 (2003)
(noting that the Ku Klux Klan vowed to “keep n‐‐‐‐rs out of
your town” as part of its campaign of racial violence and
intimidation). Indeed, African‐American Lieutenant Hersey, a
defendant in this case who was present the first time that
Perales used this slur, testified that this is an “ugly word” that
shocked him when he heard Perales use it. Hersey in fact
confronted Perales about his use of this slur as soon as Robinson
left the area, telling Perales that it was inappropriate for a
supervisor to use this word at the university.
Third, Perales was not simply a co‐worker; he was a
supervisor with direct authority over Robinson. “Perhaps no
single act can more quickly ‘alter the conditions of employment
and create an abusive working environment,’ Meritor, 477
U.S. at 67, 106 S.Ct. at 2405, than the use of an unambiguously
racial epithet such as ‘n‐‐‐‐r’ by a supervisor in the presence of
his subordinates.” Rodgers v. Western‐Southern Life Ins. Co., 12
F.3d 668, 675 (7th Cir. 1993). See also Dandy, 388 F.3d at 271
(supervisor’s use of the term “n‐‐‐‐r” impacts the work
environment far more severely than use by co‐equals). Indeed,
Nos. 16‐2291 & 16‐3390 15
Perales used this slur not just in the presence of a subordinate
(as occurred in Rodgers) but directed the epithet at the subordinate
himself.
The district court agreed that this language was humiliating
but the court noted that the first time Perales used this language,
he was quoting the language of other officers in
“apparent disapproval.” Perales’s speech to Robinson employed
apophasis, the rhetorical device of denying one’s
intention to speak of a subject that is at the same time mentioned
or insinuated. See Webster’s Unabridged Dictionary of
the English Language, RHR Press (2001). The use of this device
has the effect of emphasizing the subject while maintaining
plausible deniability. See www.merriam‐webster.com/ dictionary/
apophasis (last visited June 26, 2018). In other words,
Perales denied that he was racist or that he used words like
“n‐‐‐‐r” by using the highly objectionable term multiple times
as part of his purported denial.
Although Perales employed the language of denial when
delivering the first few instances of this epithet, the court
should not have construed that fact in Perales’s favor on
summary judgment. A reasonable jury could find that,
especially in light of Perales’s later use of the term to directly
disparage Robinson, Perales’s use of apophasis was really
meant to distance himself from liability while still deriving the
desired effect of disturbing the listener.
The court also remarked that the impact of language not
directed at the plaintiff is not as great as the impact of language
that is so directed. In support, the court cited Smith v. Northeastern
Ill. Univ., 388 F.3d 559, 566 (7th Cir. 2004). In Smith, the
16 Nos. 16‐2291 & 16‐3390
plaintiff never personally heard the defendant utter the word
“n‐‐‐‐r” and it was never used in reference to her; its use was
reported to her by other workers. On a single occasion, she
heard the defendant call her colleagues “black motherf‐‐‐‐rs.”
We held that this single instance spoken in the plaintiff’s
presence and not directed at her was insufficient to meet the
standard. In contrast, Perales used the word “n‐‐‐‐r” multiple
times in Robinson’s presence, first to deny that he was racist or
that his motive in pursuing his grooming policy complaint was
racially motivated and then to disparage Robinson directly.
Indeed, his second use of the term was directly in reference to
Robinson’s failure to conform to the grooming policy, attributing
his inability to shave to being a “n‐‐‐‐r.” This makes his
initial denial all the more suspect, and a reasonable jury could
find that the denial was itself meant as a disparagement or as
a cover for his true motive in pursuing the grooming issue.
Construed in Robinson’s favor, the two instances were intended
to disparage and humiliate Robinson.
Fourth, the district court failed to consider the totality of
Perales’s conduct, separating some of the conduct out into
retaliation instead of including it as part of the harassment. A
jury could consider all of Perales’s conduct towards Robinson,
including his unusually close surveillance of Robinson and his
directives to others to “get shit” on Robinson in order to write
him up, and deny him benefits that he wanted such as time off
or special assignments. When considered along with Perales’s
repeated use of the word “n‐‐‐‐r,” there was a triable issue of
fact regarding whether Perales’s conduct was severe or
pervasive enough to meet the standard for hostile environment.
That Robinson was able to continue preforming his job
Nos. 16‐2291 & 16‐3390 17
well is not dispositive, as the defendants suggest. Interference
with work preformance is only one factor among many in the
calculus. Johnson, — F.3d at —; 2018 WL 2753066, at *8.
Resilient employees who manage to perform well in trying
circumstances may still prove a hostile environment claim.
The parties do not dispute that there were genuine issues of
material fact on the other factors for a hostile work environment
claim, and so this claim should have gone to the jury.
C.
Spangler challenges the district court’s grant of summary
judgment in favor of Perales and the Board on his claim for
retaliation. In order to make out a claim for retaliation, a
plaintiff must demonstrate (1) that he engaged in statutorily
protected activity; (2) that his employer took a materially
adverse action5 against him; and (3) that the protected activity
and the adverse action are causally connected. Gracia v.
SigmaTron Int’l, Inc., 842 F.3d 1010, 1019 (7th Cir. 2016);
Ripberger v. Corizon, Inc., 773 F.3d 871, 881 (7th Cir. 2014); 42
U.S.C. § 2000e–3(a). To prove causation, the plaintiff must
show that “the desire to retaliate was the but‐for cause of the
challenged employment action.” Gracia, 842 F.3d at 1019
(quoting University of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 352 (2013)). “This requires proof that the unlawful
retaliation would not have occurred in the absence of the
5 Some of our cases describe this requirement as a materially adverse
employment action. The Supreme Court has made clear, however, that
materially adverse actions and harms are not limited to those related to
employment or to the workplace in the retaliation context. Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
18 Nos. 16‐2291 & 16‐3390
alleged wrongful action or actions of the employer.” Nassar,
570 U.S. at 360. A materially adverse action is one which might
well have dissuaded a reasonable worker from engaging in
protected activity such as making or supporting a charge of
discrimination. Burlington N. & Santa Fe Ry., 548 U.S. at 68. The
harm is judged by an objective standard but context matters:
as the Court noted, a retaliatory schedule change, for example,
may not be significant for some employees but may matter
enormously to a parent with young children. Burlington N. &
Santa Fe Ry., 548 U.S. at 68–69. An act that is immaterial in
some situations might be material in others. Id. See also Washington
v. Ill. Dep’t of Revenue, 420 F.3d 658, 661–62 (7th Cir.
2005) (although “petty bureaucratic nastiness” might not be
enough to meet the materiality requirement for an employee
bringing a retaliation claim on her own behalf, when an
employee is supporting a colleague’s charge of discrimination,
this lesser retaliation might induce the employee to withhold
support because “it takes less to deter an altruistic act than to
deter a self‐interested one,” possibly meeting the standard in
that circumstance).
Spangler presented evidence that, on March 22, 2012,
shortly after Robinson filed a grievance complaining about
Perales’s use of the word “n‐‐‐‐r,” Perales and Hersey called
Spangler into a meeting. Spangler was Robinson’s watch
commander at that time. In the meeting, Perales told Spangler
to follow Robinson and Pawlik around and “get some shit on
them, and write them up.” Perales specifically said to keep an
eye on Robinson and “write him up for anything [he] could
find.” R. 57‐3, at 232–33. Perales also told Spangler to deny
Robinson and Pawlik any special assignments and time off that
Nos. 16‐2291 & 16‐3390 19
they requested. According to Spangler, Perales gave these
directives as he was complaining about the allegations that
Robinson raised against Perales. Perales included Pawlik as a
target for retaliation because he was a witness to Perales’s use
of the word “n‐‐‐‐r” against Robinson. Perales told Spangler
that Robinson and Pawlik were a threat to all supervisors and
that Spangler could not allow officers to “take down” supervisors.
Spangler understood the directive to include writing up
the pair on false charges, not simply on valid infractions.
Hersey then told Spangler that Perales was right and that
everything had to be accomplished through Spangler so that
Perales would seem uninvolved. Spangler refused, telling
Perales and Hersey that he “was going to treat the officers all
the same.” He then left the meeting. R. 57‐3, at 242.
The very next day, Hersey served an unfounded Notice of
Infraction on Spangler. Two months later, Perales issued
Spangler another unfounded Notice of Infraction. Although
both charges were ultimately dropped (after Chief Richardson
deemed them unfounded), Spangler was soon demoted from
his position as watch commander, “not down to the alternate
watch commander but all the way down to street sergeant.”
Spangler had been a watch commander for four years at that
point. The demotion reduced Spangler’s pay rate. According
to Spangler, Perales told him directly that he (Perales) made
the decision to demote Spangler. Cappitelli, however, said that,
although he consulted Perales about the decision to replace
Spangler with another sergeant, the decision was his
(Cappitelli’s) alone to make. Cappitelli then named Todd
Edwards, who is African‐American, to replace Spangler as
watch commander. Edwards wanted to select Spangler as the
20 Nos. 16‐2291 & 16‐3390
alternate watch commander but was directed by Cappitelli to
instead select Stan Grice, who is also African‐American.
Spangler inferred that the selection of African‐American
replacements was intended to protect Perales from Robinson’s
charge of discrimination.
The district court found that Spangler had produced
enough evidence to create genuine issues of material fact on
the issues of protected activity and materially adverse action.
Spangler’s refusal to retaliate against Robinson for complaining
about Perales’s racist words and actions certainly constitutes
protected activity. Spangler was opposing an unlawful
employment practice under Title VII when he refused to
engage in retaliation against a subordinate who filed a goodfaith
complaint of discrimination. 42 U.S.C. § 2000e‐3(a) (“It
shall be an unlawful employment practice for an employer to
discriminate against any … employee[] … because he has
opposed any practice made an unlawful employment practice
by this subchapter.”). Supporting a colleague’s charge of
discrimination by refusing to retaliate against that colleague is
protected activity. Washington, 420 F.3d at 661–62. The court
also correctly concluded that the defendants arguably took
materially adverse actions against Spangler. A jury could find
that the false notices of infraction are the kind of “petty
bureaucratic nastiness” that might dissuade a co‐worker from
supporting an employee’s charge of discrimination. Most
importantly, the demotion from watch commander to street
sergeant, with its attendant reduction in pay, clearly qualifies
as a materially adverse action.
But the district court granted summary judgment to the
defendants after concluding that Spangler could not show
Nos. 16‐2291 & 16‐3390 21
causation. The court found that Cappitelli alone made the
decision to demote Spangler, and that Cappitelli was not aware
that Spangler had engaged in protected activity. The court
characterized as hearsay Spangler’s testimony that Perales
admitted that he had made the decision. Because the decisionmaker
did not know that Spangler had engaged in protected
activity, the court concluded that Spangler failed to create a
genuine issue of material fact on causation.
But Perales’s admission that he made the decision to
demote Spangler was not hearsay. Federal Rule of Evidence
801(d)(2)(A) provides that a statement is not hearsay if the
“statement is offered against an opposing party and … was
made by the party in an individual or representative capacity.”
See also Jordan v. Binns, 712 F.3d 1123, 1128–29 (7th Cir. 2013)
(“[t]here are only two requirements for admissibility under
FRE 801(d)(2)(A): a statement was made by a party, and the
statement was offered against that party”). Both elements are
easily met here. Perales is a party and he purportedly made the
statement to Spangler. Spangler now offers Perales’s statement
against Perales.6 That is sufficient to create a genuine issue of
material fact regarding who made the decision. Peele v. Burch,
722 F.3d 956, 961 (7th Cir. 2013) (statements by a party to the
case that are used against that party are not hearsay under
6 To the extent that Spangler wishes to offer this statement not only against
Perales but also against the Board, it is arguably admissible under Rule
801(d)(2)(D), as an admission of a party’s agent within the scope of the
agency. See Baines v. Walgreen Co., 863 F.3d 656, 662 (7th Cir. 2017); Simple
v. Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007). In either case, the court
erred in characterizing the statement as inadmissible hearsay on summary
judgment.
22 Nos. 16‐2291 & 16‐3390
Rule 801(d)(2)(A), and may be used as evidence of improper
retaliatory motive).
Moreover, Cappitelli conceded that he consulted Perales
before deciding to demote Spangler. A jury could conclude
that, even if Cappitelli was the ultimate decision‐maker and
even if Cappitelli himself lacked a retaliatory motive, Perales
caused him to demote Spangler with a retaliatory motive by
way of the “cat’s paw” theory. Milligan‐Grimstad v. Stanley, 877
F.3d 705, 711 (7th Cir. 2017). That theory applies “when a
biased subordinate who lacks decision‐making power uses the
formal decision‐maker as a dupe in a deliberate scheme to
trigger a discriminatory employment action.” Woods v. City of
Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). The plaintiff must
provide “evidence that the biased subordinate actually
harbored discriminatory animus against the victim of the
subject employment action, and evidence that the biased
subordinate’s scheme was the proximate cause of the adverse
employment action.” Johnson v. Koppers, Inc., 726 F.3d 910, 914
(7th Cir. 2013).
Whether Perales made the decision to demote Spangler
directly as he admitted to Spangler, or by duping Cappitelli
into doing the deed for him, Perales clearly was aware that
Spangler had engaged in protected activity, and Perales
arguably had a retaliatory motive. Spangler has also presented
additional evidence of causation, including the timing of the
retaliatory acts and evidence that the reasons stated for
demoting him and replacing him with Edwards are pretexts
for the true cause. On the timing issue, Spangler has evidence
that he faced a false Notice of Infraction the day after he
refused to retaliate against Robinson. This is an especially
Nos. 16‐2291 & 16‐3390 23
telling piece of evidence because Spangler had just refused to
make false charges against Robinson and Pawlik. A jury could
find that Perales and Hersey were sending him a message that
they would subject him to that same treatment (false charges)
if he did not comply. After a second false Notice of Infraction,
Perales demoted (or arranged the demotion of) Spangler.
Watch commanders were reassigned every six months and
Spangler was demoted at the defendants’ first opportunity to
take action against him.
In sum, Spangler presented adequate evidence that Perales,
who had an obvious motive to retaliate, either made the
decision to demote Spangler or influenced the person who did
so. Hersey’s first false Notice of Infraction came within a day
of Spangler refusing to make false charges against Robinson;
Perales’s false Notice followed soon after, and then Spangler,
who had been a watch commander for four years, was unceremoniously
demoted. There is enough to send Spangler’s claim
of retaliation to a jury.
D.
After Robinson prevailed at trial on his retaliation claim,
Perales moved for judgment as a matter of law. See Fed. R. Civ.
Proc. 50. The district court denied the motion, and Perales filed
a cross‐appeal. Perales contends that Robinson failed to prove
that Perales took materially adverse actions against him or that
Robinson’s complaint was the cause of any actions taken by
Perales. According to Perales, two recent cases hold that mere
heightened scrutiny does not meet the standard for a materially
adverse action: Boss v. Castro, 816 F.3d 910 (7th Cir. 2016),
and Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866
24 Nos. 16‐2291 & 16‐3390
(7th Cir. 2016). Perales also took exception to the district court’s
failure to consider certain evidence he presented at trial.
Our review of the district court’s denial of the motion for
judgment as a matter of law is de novo. Harvey v. Office of Banks
& Real Estate, 377 F.3d 698, 707 (7th Cir. 2004). The standard for
judgment as a matter of law mirrors the standard for summary
judgment:
[I]n entertaining a motion for judgment as a matter
of law, the court should review all of the evidence in
the record. In doing so, however, the court must
draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility
determinations or weigh the evidence. … Thus,
although the court should review the record as a
whole, it must disregard all evidence favorable to
the moving party that the jury is not required to
believe. That is, the court should give credence to
the evidence favoring the nonmovant as well as that
evidence supporting the moving party that is uncontradicted
and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51
(2000) (internal citations and quotation marks omitted). The
district court ably applied this standard and we find no error
in the court’s conclusions. There is nothing to Perales’s claim
that the district court failed to consider certain evidence
presented at trial; the court considered the evidence that Reeves
Nos. 16‐2291 & 16‐3390 25
required the court to consider and disregarded evidence that
the court must disregard under Reeves.
We noted above that a materially adverse action is one that
might well dissuade a reasonable worker from engaging in
protected activity. Although it is an objective standard, context
matters. Part of the context here is the paramilitary police
environment that involves officers relying on each other for
backup in dangerous situations. As the district court noted,
this was not simply a case of heightened scrutiny applied to
the employee’s performance. The jury was entitled to believe
evidence that “Perales actively planned to damage or perhaps
even end Robinson’s career as a UIC police officer and that he
attempted to enlist others in that effort.” We agree with the
district court that it “defies common sense to argue that such
behavior would not deter a reasonable employee from lodging
future complaints.” A reasonable jury could find that Perales’s
conduct was designed to suppress dissent. We also agree with
the district court’s conclusion that the jury was entitled to
accept Spangler’s testimony as proof that Robinson’s filing of
the grievance was the but‐for cause of Perales’s retaliation.
Boss and Bagwe are distinguishable on their facts. Boss was
subjected to a performance improvement plan, was required to
substantiate his time off, and had to reschedule one day of
“telework.” He received an unfavorable performance review
that downgraded him from “highly successful” to “fully
successful,” a change that had no tangible job consequence.
Not only did he suffer no tangible job consequences from these
petty slights, he had no evidence that some of these actions
were tied to his filing of an EEOC complaint, failing on
causation as well. Boss, 816 F.3d at 919. Bagwe also faced a
26 Nos. 16‐2291 & 16‐3390
performance improvement plan but had no evidence that the
motive was retaliatory. Nor could she show that an investigation
launched after she complained of pay discrimination was
founded on an improper motive. Although she was ultimately
terminated, she failed to meet her burden of proof on causation
by not tying her termination to any protected activity. Bagwe,
811 F.3d at 889–90.
In contrast, Robinson was subjected not simply to increased
surveillance but to a campaign designed to damage or end his
career as a UIC officer, and his superiors enlisted others,
including his watch commander, to aid them in this goal. This
is the kind of conduct that would dissuade a reasonable officer
from making a complaint in the first place. That Robinson
made additional complaints is not relevant to the objective test
regarding the effect the defendants’ actions would have on a
reasonable person. “Our job at this stage is not to determine
whether the jury believed the right people, but only to assure
that it was presented with a legally sufficient basis to support
the verdict.” Harvey, 377 F.3d at 707. The jury was presented
with an adequate basis here for finding in favor of Robinson on
his claim for retaliation.
E.
Finally, we turn to Robinson’s appeal of the district court’s
order denying his request for attorneys’ fees. A court may, in
its discretion, award attorneys’ fees to prevailing parties in
certain civil rights actions. See 42 U.S.C. § 1988(b); Farrar v.
Hobby, 506 U.S. 103, 108 (1992). Perales does not dispute that
Robinson qualifies as a prevailing party. Robinson obtained an
enforceable judgment against the defendant from whom fees
Nos. 16‐2291 & 16‐3390 27
are sought, and that judgment directly benefitted him, thereby
altering the legal relationship of the parties. Farrar, 506 U.S. at
111. A plaintiff who wins even nominal damages is a prevailing
party under section 1988. Farrar, 506 U.S. at 112.
The district court exercised its discretion to deny fees in this
instance because of the extremely limited success Robinson
achieved in relation to the relief he sought. The district court
noted that it dismissed all but one of Robinson’s claims on
summary judgment, and at trial, one defendant was vindicated
and the other defendant was ordered to pay only one dollar in
damages. Compared to the amounts Robinson sought at trial,
this was a negligible recovery, the court concluded, and not
worthy of an award of fees. That the jury absolved the Board
suggested to the district court that this was a mere personal
victory without any accompanying public benefit. We review
that decision for abuse of discretion. Hensley v. Eckerhart, 461
U.S. 424, 437 (1983) (a district court has discretion in determining
the amount of a fee award under section 1988); Baker v.
Lindgren, 856 F.3d 498, 503 (7th Cir. 2017) (court’s review of a
section 1988 fee award is limited to whether the district court
abused its discretion).
Under Farrar, the most critical factor in determining the
reasonableness of a fee award is the degree of success obtained.
506 U.S. at 114. “When a plaintiff recovers only nominal
damages because of his failure to prove an essential element of
his claim for monetary relief, … the only reasonable fee is
usually no fee at all.” Farrar, 506 U.S. at 115. Robinson asserts
that he did not request any particular amount from the jury
and so he was fully vindicated by the award of nominal
damages. And that brings us to the second example of
28 Nos. 16‐2291 & 16‐3390
apophasis in this case, which occurred during Robinson’s
closing argument:
It takes us to the damages section of the verdict
form. And I’m not going to stand here and tell you
what we think this is worth, what we think or what
Officer Robinson thinks that this is worth to him.
That’s going to be your job. But I’m going to ask you
what value you put on your ability to go to work in
an environment where you aren’t constantly worried
about retaliation that might come at you from
all sides. Going to the workplace, you don’t know
who to trust.
What is that worth to you? Is it worth $50,000? Is it
worth $200,000? Is it worth $300,000? That’s something
that we, the plaintiff, are going to leave up to
the jury to decide. That’s going to be listed on the
verdict form as the actual damages. … The last
question … deals with punitive damages. That’s the
way that the jury can send a message to Lieutenant
Perales that this kind of action, this kind of conduct
is unacceptable. … And I’ll ask what kind of message
you want to send. Is that $500,000? Is that
more? Again, it’s up to you to decide[.]
Tr. at 590–91.
In supposedly declining to name a number or ask for a
particular amount, Robinson’s counsel suggested figures
ranging from $50,000 to $300,000 in compensatory damages
and $500,000 or more in punitive damages. Framing a request
for $800,000 or more by denying that you are asking for any
Nos. 16‐2291 & 16‐3390 29
particular amount is a clever rhetorical device but it is still a
request for a particular amount. The district court did not
abuse its discretion in treating this language as a request for a
particular amount and gauging the one dollar award against it.
We see no abuse of discretion in the decision to deny Robinson
any attorneys’ fees.
On remand, however, the court will be faced with a
different situation that may result in a better outcome for
Robinson and Spangler. We are vacating summary judgment
on two counts—one for each plaintiff. If the trial of those
counts (or a settlement of those counts) results in more than
nominal damages, the court will have to engage in this analysis
anew, using the new figures as part of the equation.

Outcome: We vacate the summary judgment in favor of the defendants
on Robinson’s claim for racial harassment and Spangler’s
claim for retaliation, and remand those claims for trial. We
affirm the district court’s judgment denying Perales’s motion
for judgment as a matter of law and denying Robinson’s
motion for attorneys’ fees. We affirm the judgment in all other
respects.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART.

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