The full case caption appears at the
end of this opinion. EVANS, Circuit Judge. In August 1989 Robert Lowestarted working for Consolidated Freightwaysloading and unloading freight in CF’s Milwaukeeterminal. According to Lowe, beginning in late1991 his work environment became raciallyhostile. Lowe found nooses hanging in his workarea, posters about the KKK, and copies of”jokes” demeaning blacks, including one entitled”Leroy’s Homework Assignment,” which calledblacks stupid and made fun of the way they talk.Other employees referred to him as “chocolateboy” and “jungle bunny”; they told racial jokesand one supervisor even said that he “never wouldhave hired [Lowe's] black ass in the firstplace.” For the most part, when he foundsomething offensive, Lowe reported it to asupervisor or a union steward. But nothingchanged, and in October 1994 Lowe filed adiscrimination charge with the EEOC. It didn’t help. Even after Lowe filed hischarge he continued to find nooses around theterminal. He also found more “jokes,” includingthe “Ebonics Lesson,” which, like “Leroy’sHomework Assignment,” called blacks stupid andmade fun of the way they talk, and the “mud flapposter,” a want-ad parody seeking small blackapplicants to act as mud flaps. Another employeepulled a gun on Lowe, and Jay Sakwinski, theoffice manager at the Milwaukee terminal, toldLowe that he was going to “get him,” that hewould “fuck him in his black ass until hebleeds.” Lowe filed a retaliation charge with theEEOC in May 1995. After exhausting his administrative remediesLowe turned to the federal courts. He sued,alleging that CF subjected him to a raciallyhostile work environment and then retaliatedagainst him for complaining about it. The casewas tried to a jury, which returned a verdict forCF. CF’s theory, which the jury apparentlybought, was that Lowe fabricated the entire storyto get cash. Between them, the parties called atleast 27 witnesses; the trial lasted 7 days.After the jury returned its verdict, Lowe movedfor a new trial, arguing that the verdict wasagainst the weight of the evidence. The districtcourt denied Lowe’s motion and he appeals. Lowe bears a particularly heavy burden inconvincing us that the district court should havegranted a new trial: A motion for a new trial based on the sufficiencyof the evidence should be granted only if theverdict is against the manifest weight of theevidence. See Cygnar v. City of Chicago, 865 F.2d827, 835 (7th Cir. 1989). Our review of adistrict court’s application of this test isdeferential. See American Nat’l Bank & Trust Co.,125 F.3d at 431. We shall reverse a districtcourt’s denial of a motion for a new trial onlyupon a showing that the court abused itsdiscretion. See id. Riemer v. Illinois Dept. of Transp., 148 F.3d800, 806 (7th Cir. 1998). The district court didnot abuse its discretion when it declined toupset the jury’s verdict here. After reading the facts recited above, onemight well wonder how a jury could have returnedthe verdict it did. Lowe tells a horrendousstory. But there are two very different sides tothis story. CF presented a much rosier picture ofthe work environment, calling several witnesses(some black; some white) who testified they didnot find the environment to be hostile. CF alsopresented substantial evidence from which thejury could have concluded that Lowe was lyingthrough his teeth when he gave his testimony. CFattacked Lowe’s credibility and shot holes in histestimony. Even the dry trial transcript showsthat CF’s counsel worked Lowe over pretty well.For example, CF got Lowe to admit that he hadpreviously lied to the unemployment compensationdepartment, filing claims for unemployment evenafter he started working–and collecting wages–at CF; Lowe filed false claims every week for 2or 3 months. He admitted he did it and headmitted he was lying when he did it. The obviousinference was that if he’d lie to collect piddlyunemployment compensation, he’d surely lie toscore a jackpot with a big jury verdict in acivil rights case. And there was more damning testimony. CFtripped Lowe up on his story about what he saw inthe Milwaukee terminal. Lowe alleged that he hadseen numerous (at least 8 or 10) nooses in theworkplace before he filed his discriminationcharge. Yet the documentary evidence showed thatthere had been only one noose sighting. Lowe’sfirst EEOC charge alleged only one noosesighting, and Lowe’s own notes, which he keptfrom 1992 to 1996 to document the workplacehostility, reflected only one noose sighting. CFalso offered witnesses who testified that thenoose wasn’t racially motivated; rather, it wasunion propaganda slamming scabs. And CF raisedthe question of why Lowe didn’t have more proofof the nooses. Lowe introduced two nooses attrial–one actual noose and a picture of anotherone which he had taken using a camera kept in theterminal to record damaged freight. Lowe admittedthat, although he had seen other nooses, hedidn’t take them because “I couldn’t put thatnoose in my pocket and get out of there with thatnoose like that.” Nor did he take any otherpictures, though the camera was always available,because he thought his supervisors would bewatching him after he filed his EEOC charge. Thejury was free to accept his explanations or not.It apparently did not accept them. Lowe’s notes provided still more ammunition forimpeachment. According to Lowe, he kept the notesto build a sort of evidentiary arsenal to supporthis harassment claim. Yet the notes make nomention of most of the harassment he testified toat trial; the notes don’t mention “Leroy’sHomework Assignment,” the “Ebonics Lesson,” orthe mud flap poster. When asked to explain that,he said he recorded “things that [were] worsethan other things.” He also said he lost a lot ofhis notes– explanations the jury was free tobelieve or not. Lowe testified that he had seen copies of”Leroy’s Homework Assignment” and the “EbonicsLesson” in the terminal. At trial he testified hesaw the Homework Assignment on the loading dock.But at his deposition, Lowe admitted that he saw”Leroy’s Homework Assignment” only because JimmyJohnson, a co-worker and friend, gave it to himto add to his evidentiary arsenal. Lowe admittedthat he did not think Johnson’s giving him thedocument was racial harassment. The jury was leftto decide whether Lowe was telling the truth athis deposition or at trial. CF also put on witnesses to refute Lowe’sallegations that another employee pulled a gun onhim and that Sakwinski made racist comments tohim. Gary Goetz, the employee who allegedlypulled a gun on Lowe, denied that he had donethis. Goetz admitted that he brought a gun towork once because another employee was interestedin buying it from him and that he was showing thegun to a group of guys at the trunk of his car.He further testified that he thought Lowe walkedby when he was showing the gun to the other guys.Even Lowe had a hard time substantiating this gunincident at trial. He testified that he found theincident threatening but couldn’t say that it wasracially hostile. He also testified that hereported the incident, but when pressed on thathe admitted that he merely asked the potentialbuyer of the gun whether he had completed thesale. He also testified at his deposition that hehadn’t told anyone about the incident. Lowe testified that Sakwinski, the terminalmanager, told him he was going to “get him” andthat he’d “fuck him in his black ass until hebleeds.” Sakwinski denied saying anything likethis. In fact, Sakwinski testified that he andLowe had a good relationship, and Lowe didn’tdisagree with that characterization. The jury wasfree to believe Lowe or to believe Sakwinski; itapparently chose to believe Sakwinski. This mighthave tipped the scales in Sakwinski’s favor: Lowedidn’t mention the incident in his notes; nor didhe report it to anyone. Finally, CF challenged Lowe’s assertion that hereported incidents to management. Lowe testifiedat trial that he told supervisors about many ofthe undocumented offensive incidents. In somecases, his trial testimony directly contradictedhis deposition testimony, and CF impeached him onthose matters in front of the jury. In at leasttwo instances he testified that he toldsupervisors about incidents when that was simplyimpossible because those supervisors were eitherno longer working at CF or were dead at the time. In short, CF gave the jury substantial evidenceto support a verdict in its favor. And for muchof his case, Lowe had nothing but his owntestimony to support his claim. Faced with Lowe’srecord, the many, many inconsistencies in hisstory, and the testimony of many, many witnessesdirectly contradicting Lowe’s evidence, the jurychose to believe CF’s theory and to reject Lowe’sstory.
[FOOTNOTE 1] That was the jury’s prerogative. It’sthe jury’s job–not the district court’s job orthe job of a panel of appellate judges–to figureout who’s telling the truth. The fact that Lowepresented evidence that is inconsistent with thejury’s verdict does not mean that the verdictshould be reversed. See Sheehan v. Donlen Corp.,Nos. 98-1020, 98-1095, 1999 WL 179015, at *7 (7thCir. Mar. 18, 1999) (“It is the jury’s job toweigh the evidence, not ours.”) (quoting Knox v.State of Indiana, 93 F.3d 1327, 1337 (7th Cir.1996)). Nor should the verdict be reversedbecause Lowe explained some of the deficienciesin his presentation. The jury was there; itweighed the witnesses’ credibility, consideredthe evidence, and reached a supportableconclusion. We, like the district court, defer tothat conclusion. See Riemer, 148 F.3d at 806(“[W]e ‘are particularly careful in employmentdiscrimination cases to avoid supplanting ourview of the credibility of the evidence for thatof both the jury (in its verdict) and the judge(in not interfering with the verdict).’”)(Citations omitted.) See also Sheehan, 1999 WL179015, at *3 (“[T]he jury was presented with tworadically different stories . . . [and, althoughit] might rationally have believed [theemployer], . . . it did believe [the employee]“;because there was a “reasonable basis in therecord for [the] verdict . . . [we] let theverdict stand.”). The district court’s decisionto deny Mr. Lowe’s motion for new trial isaffirmed. :::FOOTNOTES:::
FN1 At oral argument Lowe’s counsel tried to persuadeus that the jury did not need to believe Lowe tofind in his favor. We disagree. Most of Lowe’sevidence came from his own mouth. Though he hadcopies of “Leroy’s Homework Assignment,” the”Ebonics Lesson,” and the mud flap poster, and anoose and a picture of a noose, the jury stillhad to accept his testimony that he found thosedocuments in the workplace.
ROBERT LOWE, Plaintiff-Appellant, v. CONSOLIDATED FREIGHTWAYS OF DELAWARE, INCORPORATED, JAY SAKWINSKI, AND BRUCE DEMITROS, Defendants-Appellees. No. 98-2297 United States Court of Appeals for the Seventh Circuit Appeal from the United States District Court for the Eastern District of Wisconsin. No. 95-C-1150–Patricia J. Gorence, Magistrate Judge. Argued February 24, 1999–Decided May 6, 1999 Before EASTERBROOK, MANION, and EVANS, CircuitJudges.
