                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-3123
DELORES AMMONS-LEWIS,
                                             Plaintiff-Appellant,
                                v.

METROPOLITAN WATER
RECLAMATION DISTRICT OF
GREATER CHICAGO,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
          No. 03 C 885—Matthew F. Kennelly, Judge.
                         ____________
   ARGUED NOVEMBER 29, 2006—DECIDED MAY 30, 2007
                   ____________


  Before BAUER, CUDAHY, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Delores Ammons-Lewis sued
her employer, the Metropolitan Water Reclamation
District of Greater Chicago (the “District”), for sex dis-
crimination pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”), and the
denial of equal protection in violation of the Civil Rights
Act of 1871, 42 U.S.C. § 1983 (“section 1983”). A jury found
in favor of the District on the Title VII claims, and the
district court entered judgment in favor of the District on
those claims as well as Ammons-Lewis’ parallel claims
under section 1983. Ammons-Lewis appeals, challenging
2                                                   No. 05-3123

certain of the district court’s decisions that she contends
deprived her of a fair trial. We affirm.


                               I.
  The District is a unit of local government that serves
as the sanitary district for Cook County, Illinois, operat-
ing various water collection and treatment facilities.
Ammons-Lewis has worked for the District since 1986 and
at the time of the events underlying this case held the
position of operating engineer. Ammons-Lewis filed this
suit against the District alleging, in relevant part, that
she was subjected to a hostile work environment based
on her sex.1 She alleged in particular that she was regu-
larly and involuntarily exposed to pornography and
sexually-oriented drawings in the workplace and also that
she experienced unwelcome physical contact and verbal
remarks of a sexual nature. She alleged that she com-
plained repeatedly about these matters but that the
District failed to respond in a timely and reasonable
manner. On the District’s motion, the district court
ordered that the Title VII claims be tried separately
from the section 1983 claims. With the parties’ consent,
the Title VII claims were tried first. All were in agreement
that if Ammons-Lewis did not prevail on her Title VII


1
  Ammons-Lewis’s complaint also included claims under the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.
(the “ADA”), the Family and Medical Leave Act of 1993, 29 U.S.C.
§ 2601 et seq., and for retaliation in violation of both the ADA
and Title VII. The district court granted summary judgment
on these claims in favor of the District, leaving only the Title
VII hostile environment and section 1983 claims for trial. R. 51,
70; 2004 WL 2453835 (N.D. Ill. Nov. 1, 2004). The latter claims
are the only ones at issue in this appeal; Ammons-Lewis does
not challenge the disposition of the other claims.
No. 05-3123                                               3

claims, she would be unable to proceed with her section
1983 claims. A trial on the Title VII claims took place over
the course of eight days in June 2005. A jury found in favor
of the District on those claims, and the district court
subsequently entered judgment in favor of the District
on the section 1983 claims. See R. 129-10 at 1529; R.
92, 93.


                            II.
A. Juror selection
  Ammons-Lewis contends that the district court erred
in its handling of five jurors. Each of the five had some
characteristic or circumstance which, in the view of
Ammons-Lewis, rendered him or her unqualified to
serve on the jury. In one instance, the district court
eventually did dismiss the juror in question, but the other
four served through the conclusion of the trial. In each
instance, Ammons-Lewis argues, the district court failed
to address the disabling matter properly, thereby depriv-
ing her of a qualified and impartial jury and in turn a fair
trial. A brief description of the relevant facts as to each
juror is in order.
  In his answers to the juror questionnaire that each
member of the venire was asked to complete, juror Bright
disclosed that he experienced anxiety. The district court
questioned him about this in chambers in the presence
of counsel. Bright explained that he had a highly stress-
ful job and that he had been diagnosed with an anxiety
condition approximately one year prior to the trial. He
had taken medication for the condition for a period of six
months, eventually discontinued the medication, and at
the time of trial was doing fine provided that he took
certain prophylactic measures. Bright indicated that he
had disclosed the condition because he was “a little wor-
4                                               No. 05-3123

ried” about how he would handle the unfamiliar experience
of jury service. R. 129-2 at 112. After the court explained
to him what jury service would entail, he indicated that he
“should be okay,” and added that he had not had not
experienced any difficulty during jury selection. Id. at 113.
Satisfied that Bright was capable of serving on the jury,
the district judge said that “we’ll just work with that” and
instructed Bright to let the court know if he experienced
any difficulty. Id. Later, in the midst of the trial, Bright
sent the court a note disclosing that while “the plain-
tiff ’s attorney was asking small questions that didn’t
seem important,” he had begun to experience difficulty
that he described as “getting dizzy, nervous and anxious,”
and feeling bothered by things that would normally not
trouble him. R. 129-5 at 764. Bright’s note added that he
would consult his physician. After discussing the note
with counsel, the court without objection had a brief one-
on-one conversation with Bright in chambers, wherein
Bright advised the court that he was fine as long as the
trial kept moving along and agreed to advise the court
if he needed a break or any other accommodation to deal
with his anxiety. Id. at 765. Bright reported no further
difficulty and was later chosen to be the presiding juror.
  During the trial, witness Stephen Kelly, one of the
individuals whom Ammons-Lewis accused of harassing
her, reported to defense counsel during a break in his
testimony that he believed he recognized Bright as his
niece’s former fiancé. R. 129-5 at 660-61. However, he
recalled the first name of his niece’s fiancé as being
“Brian,” which, because that was not Bright’s first name,
led defense counsel to think he was mistaken. Id. at 661.
On learning of the situation, the court agreed that “[i]t’s
a different person” and let the matter drop without fur-
ther action. Id.
  Juror Robinson disclosed on the third day of trial, during
the plaintiff ’s testimony, that he was acquainted with one
No. 05-3123                                                5

of the witnesses in the case. Robinson had indicated dur-
ing voir dire that he did not know anyone on the parties’
list of anticipated witnesses. But after the trial began, he
noticed on a document shown to the jury the name and
address of Willie Davis, an individual that Ammons-Lewis
had identified as one of her harassers and who would later
testify in the case. Robinson realized at that point that he
knew Davis, who lived a block away from him. After
the trial broke for lunch, Robinson apparently ap-
proached the judge and tried to inform him orally of his
conflict, but at the judge’s request he instead put the
matter in writing. When the trial reconvened that after-
noon, the judge reported the contents of Robinson’s note
and excused him from the jury after consulting with the
parties. R. 129-4 at 541-43, 547-48, 549.
   Juror Astorga completed his juror questionnaire in
English and disclosed no difficulty understanding or
speaking English during voir dire. After the jurors were
selected and the trial was about to get under way, the
court advised the jurors that they would be given note-
books and writing implements. Astorga then advised the
court that “[i]f we need to be writing, I can’t write Eng-
lish.” R. 129-2 at 131. The court advised Astorga that
his service as a juror required the ability to listen but
not to write anything down. Id. This apparently satisfied
Astorga, who expressed no further concern.
  Juror Reisman disclosed during voir dire that she had
trouble hearing. R. 129-2 at 39. However, Reisman added
that she had no difficulty hearing the district judge so long
as he spoke into the microphone. Id. This satisfied the
court that she was able to serve on the jury: “Okay. We’ve
got microphones everywhere and we’ll deal with that.” Id.
Periodically during the trial, the judge admonished
witnesses to speak directly into the microphone and
asked whether everyone in the courtroom could hear
adequately.
6                                              No. 05-3123

   Finally, juror Nahin disclosed during voir dire several
facts concerning the litigation and employment history of
her relatives and herself. First, Nahin had a great aunt
with a penchant for filing lawsuits; however, she had no
contact with her aunt and knew nothing about the suits. R.
129-2 at 94. Second, Nahin reported that her sister had
been discharged from a job five years earlier, although
that termination had not resulted in any grievance or
litigation. Id. at 94-95. Finally, Nahin indicated that she
herself had been treated unfairly at a previous job; she
clarified that the unfairness she experienced did not
involve discrimination or harassment. Id. at 95. Nahin
agreed that she could put her own experience and that of
her sister aside and that it would not prevent her from
being fair in this case. Id. at 94-95.
   Ammons-Lewis contends that the service of these
individuals on the jury, collectively and individually,
deprived her of a fair trial. With respect to juror Bright,
she contends that in view of Bright’s anxiety condition
and what she perceives to have been his ambivalence
about serving as a juror, the district court should have
excused him at once. Alternatively, she maintains that
the court was obliged to remove Bright once he disclosed
that he was experiencing stress triggered by her attor-
ney’s focus on what struck him as “small questions that
didn’t seem important.” R. 129-5 at 764. She also faults
the court for failing to question Bright about his possible
connection with witness Stephen Kelly’s niece rather
than simply assuming that Kelly was mistaken about the
first name of his niece’s fiancé. Juror Robinson, by con-
trast, did have an acknowledged connection with witness
Willie Davis and was excused once he recognized and
disclosed that he knew Davis. Nonetheless, Ammons-Lewis
faults the court for not acting more quickly once it learned
of Robinson’s conflict; apparently, she believes that the
court should have immediately dismissed or sequestered
No. 05-3123                                                7

Robinson on receipt of his note explaining his familiarity
with Davis rather than waiting for the trial to resume
after lunch. As to juror Astorga, Ammons-Lewis argues
that his inability to write English should have disqualified
him from jury service, given that it may have prevented
him from taking notes to help him recall evidence pre-
sented over the course of the eight-day trial. (She does
not take into consideration the possibility that Astorga
could have taken notes in his native language.) When juror
Reisman disclosed a hearing impairment, Ammons-Lewis
argues, the court should have inquired whether Reisman
had the benefit of a hearing aid and was able to hear
even those witnesses who might not speak directly into
the microphone. Finally, given Nahin’s disclosure that
she had a litigious great aunt, the court, in Ammons-
Lewis’s view, should have questioned Nahin about what
feelings Nahin had regarding parties who file lawsuits.
   The threshold and ultimately dispositive point about
these arguments, however, is that none of them were
raised below. The plaintiff and her counsel of course
participated in the voir dire process, were aware of the
circumstances that Ammons-Lewis now believes disquali-
fied these jurors, and yet never voiced an objection to
any of these individuals serving on the jury or with the
court’s handling of the jurors. In her briefs, Ammons-Lewis
invites us to review the district court’s decisions as to the
fitness of individual jurors for plain error, relying on the
standard formulation of plain error that we employ in
criminal cases. Yet, this is a civil case, and we have
repeatedly noted that plain error has an extremely limited
application (at most) in the civil context. E.g., Higbee v.
Sentry Ins. Co., 440 F.3d 408, 409 (7th Cir. 2006); Stringel
v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 421 (7th
Cir. 1996). Ammons-Lewis has not acknowledged this
point, let alone attempted to demonstrate why the cir-
cumstances here plausibly might fall within one of the
8                                                   No. 05-3123

narrow categories of civil errors that we could recognize
as plain error. Having reviewed the record, we have no
reason to question the district court’s handling of the
jurors Ammons-Lewis has challenged after the fact, let
alone to conclude that a potential miscarriage of justice
occurred because the district court did not sua sponte
exclude these jurors (or in Robinson’s case, exclude him
sooner) when potential problems were flagged. Given that
Ammons-Lewis did not preserve these challenges and has
made no effort to demonstrate why the circumstances
are so extraordinary that we should overlook her forfei-
ture, we deem these challenges waived and consider them
no further.


B. Admission of photograph of Ammons-Lewis and one of
   her alleged harassers
  Ammons-Lewis next contests the district court’s decision
to admit into evidence a photograph that she and witness
Willie Davis had posed for on a social occasion.2 Some
background is necessary to establish the context for our
analysis.
  Davis was a co-worker of Ammons-Lewis and, as noted,
he was also one of the people she accused of sexually
harassing her. Ammons-Lewis testified that Davis had
begun to proposition her sexually in 2000, when she was


2
  The briefs reflect a disagreement between the parties as to
whether the district court admitted the photograph into evidence
for any and all purposes or instead allowed the District to use it
solely for impeachment purposes. Our review of the record
suggests that the photograph was admitted into evidence without
restriction, and ultimately the District’s counsel conceded as
much at argument, although he maintained that the photograph
was primarily relevant to Ammons-Lewis’s credibility as a
witness.
No. 05-3123                                              9

divorcing her husband. She indicated that she con-
sistently rebuffed his requests, but he continued to propo-
sition and otherwise harass her. She testified that she
complained about the harassment to no avail. The harass-
ment she described culminated in an incident that took
place in December 2001. Ammons-Lewis testified that she
was near the end of her shift when she encountered Davis,
who was to relieve her. According to Ammons-Lewis, Davis
tried to engage her in sexual banter, began tugging
provocatively at his clothes, and sexually propositioned
her. Ammons-Lewis at first tried to ignore him and when
that did not work, she told him that they had no need to
speak to one another unless it was about work. This
evidently prompted Davis to unleash a tirade of profanities
at her. Then the confrontation became physical, according
to Ammons-Lewis. She testified that when she turned her
back on him to make a phone call, Davis came up from
behind her, wrapped his arms around her neck, and put
her in a choke hold so tight that she found it difficult to
breathe. She used her car keys to scratch his hands in an
effort to break free, but Davis responded by scratching her
face. The incident ended when one of their co-workers
came on the scene and separated the two of them. After
eventually seeking treatment at a hospital, Ammons-Lewis
filed a complaint with the Chicago police about this
incident. R. 129-3 at 276-81, 288-91.
  In advance of trial, Ammons-Lewis filed a motion
seeking to preclude any insinuation that she and Davis
had been romantically involved with one another at some
time prior to the events underlying her suit. R. 66.
Ammons-Lewis acknowledged that she had had some
contact with Davis outside of the workplace: Davis was a
family friend, and the two of them had attended some of
the same events outside of the office. Id. ¶ 2. But Ammons-
Lewis denied that she and Davis had ever dated, and
apparently she expected (wrongly, as it turned out) that
10                                              No. 05-3123

Davis would testify to the same effect. Id. ¶¶ 4-5. None-
theless, she had some expectation that one or more
witnesses would insinuate otherwise, and she sought to
preclude them from doing so given that she expected
both Davis and herself to disclaim any such relationship.
Id. ¶¶ 6-9. The District quickly disabused Ammons-Lewis
of the notion that Davis would deny having dated her
and indicated in its opposition to her motion that it
planned to present testimony from multiple witnesses
with knowledge of their relationship that they had, in fact,
been romantically involved. R. 58. On that basis, the
district court denied the motion, R. 67, although it indi-
cated that any testimony based on what a witness “thought
or assumed” about the nature of their relationship would
not be allowed, R. 129-1 at 23.
  As expected, there was conflicting testimony on this
point at trial. Davis testified that he and Ammons-Lewis
had dated one another for substantial periods of time
prior to the events underlying her complaint. R. 129-5
at 878-80. Ammons-Lewis, on the other hand, testified
that she and Davis had never dated. She indicated that
Davis was a friend to one of her cousins and a couple of her
brothers and that she and Davis had attended some of the
same social events outside of the office, but she denied that
they had attended any such events together as a couple. R.
129-3 at 269, 412; R. 129-4 at 455-56, 460.
  The photograph that Ammons-Lewis contends should
have been excluded was first disclosed while she was on
the witness stand at trial. Ammons-Lewis’s direct exami-
nation had concluded late in the week, and her cross-
examination had commenced but not concluded before the
trial broke for the weekend. On the following Monday
morning, defense counsel disclosed that over the weekend,
Davis had discovered a photograph of Ammons-Lewis,
Davis, and four other individuals at a party that took place
a number of years prior to the trial. The defense sought
No. 05-3123                                              11

permission to introduce the photograph for the purpose
of impeaching Ammons-Lewis’s prior testimony denying
any sort of dating or romantic relationship with Davis.
Ammons-Lewis objected to the photo, arguing among other
things that the photo should have been produced in
discovery and that disclosure of the photograph would
prejudice her because she had not had the opportunity
to explain the photograph during her testimony on direct
examination. The district court overruled her objection, but
granted Ammons-Lewis a few moments to review the photo
with her counsel before her cross-examination resumed
and she was questioned about the photo. R. 129-4 at 450-
53. The photo was subsequently shown to the jury and
admitted into evidence. Id. at 461.
  Not surprisingly, Ammons-Lewis and Davis gave diver-
gent testimony about the circumstances of the photograph.
Ammons-Lewis testified that the photograph had been
taken at a fundraiser or similar function that she had
attended some ten years earlier along with her brothers
and her cousin. Although Davis had also attended the
event, she testified that they had not attended that party
or any other as a couple. Id. at 456-61, 557-58. Davis, on
the other hand, recalled the event as a birthday party and,
more to the point, said that Ammons-Lewis had come
to the event as his date. R. 129-5 at 882-83.
  Ammons-Lewis contends that the admission of the
photograph was erroneous given that it was not produced
during pre-trial discovery and only served to prolong
what she sees as an irrelevant exploration into the nature
of her relationship with Davis, thereby distracting the
jury from the relevant question of whether Davis had
harassed her in the workplace.
  We review the district court’s evidentiary rulings for
abuse of discretion, e.g., Thompson v. City of Chicago, 472
F.3d 444, 453 (7th Cir. 2006), and we cannot say that its
12                                              No. 05-3123

ruling in this instance was unreasonable. We agree with
Ammons-Lewis that whether she had dated Davis prior to
the events in question was by no means dispositive of her
claim that he sexually harassed her. See Johnson v. West,
218 F.3d 725, 729-30 (7th Cir. 2000); Curry v. Dist. of
Columbia, 195 F.3d 654, 663 n.18 (D.C. Cir. 1999); see also
Pergine v. Penmark Mgmt. Co., 314 F. Supp. 2d 486, 491
(E.D. Pa. 2004) (collecting additional cases); cf. Pipkins v.
City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th
Cir. 2001). “ ‘A person’s private and consensual sexual
activities do not constitute a waiver of his or her legal
protections against unwelcome and unsolicited sexual
harassment’ ” at work. Winsor v. Hinckley Dodge, Inc., 79
F.3d 996, 1001 (10th Cir. 1996) (quoting Katz v. Dole, 709
F.2d 251, 254 n.3 (4th Cir. 1983)). An employer is obliged
to deal reasonably with unlawful harassment in the
workplace regardless of who perpetrates it. Dunn v.
Washington County Hosp., 429 F.3d 689, 691-92 (7th Cir.
2005). But the existence of a current or former social
relationship between the harasser and the harassee can
shed light on such relevant questions as whether the
complained-of conduct was unwelcome, whether it re-
sulted in a workplace that the harassee subjectively
experienced as hostile, and whether it occurred because of
the harassee’s sex. Pipkins, 267 F.3d at 1200-01; Curry,
195 F.3d at 663 n.18; Galloway v. General Motors Serv.
Parts Operations, 78 F.3d 1164, 1168 (7th Cir. 1996) (citing
Huebschen v. Dep’t of Health & Social Servs., 716 F.2d
1167, 1172 (7th Cir. 1983)), abrogated on other grounds
by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122
S. Ct. 2061 (2002). Moreover, to the extent that Ammons-
Lewis denied having dated or socialized with Davis,
contrary evidence was relevant to an assessment of her
credibility.
 Of course, the district court had a duty under Federal
Rule of Evidence 403 not to allow the dispute over the
No. 05-3123                                             13

nature of the relationship between Ammons-Lewis and
Davis to obscure the actual issues in the case. But having
reviewed the record, we are satisfied that the questioning
(and subsequent argument of counsel) concerning the
photo occupied a modest amount of trial time and did not
pose a substantial risk of distracting the jury.
   For that matter, we have a hard time believing that
the photograph was harmful to Ammons-Lewis’s case, as
it lent little support to the notion that she and Davis had
once been a couple: the two of them were photographed
in a group with four other people, and they were not
touching, looking at one another, or even standing next to
one another in the photograph. See R. 148 Def. Ex. 74.
Ammons-Lewis herself agreed that she and Davis had
attended some of the same social gatherings outside of the
workplace, so the photograph was as consistent with her
position that she and Davis had not been romantically
involved as it was with Davis’s position that they had
been.
  As for the element of surprise, the district court evi-
dently accepted the defense’s representation that Davis
had not discovered the photograph until the weekend
before it was disclosed, and we are in no position to
second-guess the court’s assessment. To compensate for
the eleventh-hour disclosure, the court gave Ammons-
Lewis and her counsel the opportunity to review and
discuss the photograph before she was questioned about
it in the jury’s presence, thus avoiding the prospect of
an ambush. And of course, since Ammons-Lewis had
posed for the photograph, she was as well-situated as
Davis to recall the circumstances under which it was
taken.
  Finally, we add that to the extent that the photograph
lent any support to the notion that Ammons-Lewis and
Davis had once dated, it was by no means the sole or most
14                                              No. 05-3123

compelling evidence that pointed to a prior romantic
relationship. In addition to Davis himself, three witnesses
offered much more direct testimony to that effect. See R.
129-5 at 878-80 (Davis); R. 129-6 at 948-49 (Charles
Jones); R. 129-7 at 1171-72 (Elnora Wilson-Simpson); R.
129-8 at 1344-45, 1347 (Keisha Guy). (Which will bring us
to the next issue.) So any error in allowing the photograph
was harmless.


C. Failure to disclose full name of witness Keisha Guy
  As we have noted, one of the incidents underlying
Ammons-Lewis’s hostile environment case was the alleged
assault and battery by Davis, which Ammons-Lewis
reported to the police. Chicago police officer Keisha Guy
interviewed Ammons-Lewis regarding her complaint and
documented the interview in a written report. Guy’s re-
port characterized Davis as “an ex-boyfriend of the vic-
tim” and indicated that the offense Ammons-Lewis had
reported was “domestic related.” R. 50-3 Ex. 17 at 1. Guy
would later testify that she wrote her report in this way
based on what Ammons-Lewis herself had told her. R. 129-
8 at 1344-45, 1347. (Ammons-Lewis denied having told
the police officer that Davis was her former boyfriend.
R. 129-4 at 532.)
  As we have noted, Ammons-Lewis sought unsuccessfully
prior to trial to exclude evidence suggesting a prior
romantic relationship between herself and Davis. R. 66. In
its response to that motion, filed some six months prior
to the commencement of the trial, the District disclosed
that it would be calling as a witness “Officer K. Guy.” R. 58
¶ 3. The District stated its belief that Guy would testify
that “Plaintiff made statements concerning a romantic
relationship between Plaintiff and Willie Davis.” Id. The
District’s final roster of anticipated witnesses, submitted
as part of the final pre-trial order, listed the “Chicago
No. 05-3123                                                 15

Police Officer who interviewed DAL on 12/12/01” as a
potential witness, although it did not identify Guy by
name. R. 140 App. 4, Def. Witness List at 2. Well in
advance of trial, both parties were also in possession of
Officer Guy’s written report, which likewise identified her
as “K. Guy” and included her star number. R. 50-3 Ex. 17.
Ammons-Lewis herself submitted a copy of Guy’s report as
an exhibit in support of the additional statement of
material facts she tendered with her memorandum in
opposition to the District’s motion for summary judg-
ment. Id. Not until the first day of trial, however, did the
District identify Officer Guy by her full name—that is,
Keisha Guy. R. 129-2 at 46.
  Ammons-Lewis claims to have been surprised by the
disclosure of Guy’s first name. Her recollection was that
she had been interviewed by a male police officer. Thus,
she was not expecting a female officer—i.e. Guy—to testify
about the nature of the complaint she filed with the police
over the incident with Davis. Ammons-Lewis appears to
suggest that the District purposely kept Officer Guy’s first
name quiet until the start of trial in order to catch her by
surprise.
  This is a frivolous argument. In the first instance,
Ammons-Lewis never voiced an objection when Guy’s first
name was identified or when Guy was summoned to the
witness stand.3 Nor could she plausibly have made such an


3
  Ammons-Lewis appears to rely on her pre-trial motion to
exclude any insinuation of a romantic relationship between
herself and Davis as sufficient to preserve her objection to
Guy’s testimony. Ammons-Lewis Br. 38 n.5. It was not. We may
assume that the motion in limine preserved an objection to the
substance of Guy’s report and to Guy’s testimony, insofar as
both indicated that Davis was Ammons-Lewis’s former boyfriend.
But this is not the objection Ammons-Lewis makes here; she is
                                                 (continued...)
16                                                No. 05-3123

objection. Long before trial, Ammons-Lewis knew that
Officer Guy had prepared a written report concerning her
complaint against Davis. That report reflected Guy’s first
initial, last name, and star number. R. 50-3 Ex. 17.
Ammons-Lewis herself relied on Guy’s report in opposing
the District’s motion for summary judgment nearly a year
before the trial commenced. See id. Six months before trial,
when the District filed its opposition to her motion to
exclude any evidence insinuating that she and Davis had
dated, Ammons-Lewis knew that the District intended
to call Guy to testify. R.58 ¶ 3. Based on the District’s
memorandum and Guy’s report, Ammons-Lewis would
have known that Guy was likely to testify that when she
interviewed Ammons-Lewis, Ammons-Lewis had charac-
terized Davis as her ex-boyfriend. Id. That neither the
police report nor the District’s memorandum disclosed
Guy’s first name did not prevent Ammons-Lewis from
ascertaining her full name and gender in advance of trial.
The information in Ammons-Lewis’s possession was more
than sufficient to enable her counsel to locate Guy and
alert her to the need to do so.
  Indeed, according to Guy’s testimony, Ammons-Lewis
herself tracked Guy down long before the trial began. Guy
testified that Ammons-Lewis came to see her at the police
station approximately one year before the trial and
challenged Guy’s report as inaccurate to the extent it
indicated that she and Davis had had a domestic relation-
ship. R. 129-8 at 1351-52. According to Guy, Ammons-


3
  (...continued)
objecting to Guy as a witness based on the District’s failure to
timely disclose Guy’s complete name. Nothing in Ammons-
Lewis’s motion in limine professed any doubt or confusion about
the identity of the police officer who interviewed her and
completed the police report. Ammons-Lewis points to nowhere
in the record where that particular objection was made.
No. 05-3123                                              17

Lewis seemed somewhat irritated, telling her that she
had a sexual harassment suit against Davis and that Guy
was “messing it up.” Id. at 1353. If that testimony is
credited, the belated disclosure of Guy’s complete first
name obviously came as no surprise to Ammons-Lewis
at all. Even if Guy’s testimony about the confrontation is
ignored and we assume that neither Ammons-Lewis nor
her counsel spoke with Guy in advance of trial, the fault
in failing to ascertain Guy’s identity can be laid only
at Ammons-Lewis’s doorstep.


D. Jury instructions as to Ammons-Lewis’s harassment
   claims
   Finally, Ammons-Lewis objects to the jury instructions
that outlined what she needed to show in order to estab-
lish a hostile working environment and to render the
District liable to her for the hostile environment. Ammons-
Lewis asserted two related but distinct claims of harass-
ment: the first based on alleged harassment by her co-
workers, and the second based on harassment allegedly
perpetrated by Stephen Kelly, whom she alleged consti-
tuted one of the District’s supervisory employees. The
claims were distinct in that the standard for employer
liability differs depending on whether the perpetrator
of the harassment was a co-worker or a supervisor. See
Erickson v. Wis. Dep’t of Corrections, 469 F.3d 600, 604
(7th Cir. 2006) (“The standard for supervisors is strict
liability and the standard for coworkers is negligence.”)
(citations omitted); Cerros v. Steel Tech’s, Inc., 398 F.3d
944, 951-52 (7th Cir. 2005).
  The instructions given to the jury acknowledged this
distinction, but rather than giving the jury an entirely
separate set of instructions for each of the two claims, the
court first advised the jury of the elements, applicable
to both claims, that Ammons-Lewis would have to meet
18                                               No. 05-3123

in order to establish actionable sexual harassment.
Specifically, the jury was advised that Ammons-Lewis had
to show by a preponderance of the evidence that (1) she
was subjected to pornography, sexually-oriented drawings,
sexually-oriented verbal comments, and physical contact
that had a sexual character or purpose, (2) this conduct
was unwelcome, (3) the conduct occurred because Ammons-
Lewis was a woman, (4) Ammons-Lewis believed that the
conduct rendered her work environment hostile or abusive,
and (5) the conduct was sufficiently severe or pervasive
that a reasonable person in her position likewise would
have found the workplace hostile or abusive. R. 96 at 19-
20. The instruction admonished the jury to consider the
conduct of Ammons-Lewis’s supervisors as well as her co-
workers in deciding whether she had met these elements.
Id. at 19. In the event the jury determined that Ammons-
Lewis had not met all five of the elements outlined, it was
instructed to render a verdict in favor of the District on
both of her claims. Id. at 20. If, on the other hand, it found
that she had met each of the five elements of a hostile
environment, the jury was advised to proceed onward and
consider whether the District was liable to Ammons-Lewis
for the acts of sexual harassment she had alleged. Id.
  When it instructed the jury on the rules governing
employer liability, the court alerted the jury to the dis-
tinction between liability based on the acts of co-workers
and liability based on the acts of supervisors. “An em-
ployer’s liability for a sexually hostile work environment
depends on whether the person(s) who did the acts that
created the hostile work environment were co-workers or
supervisors of the plaintiff. For this reason, I will give you
separate instructions relating to conduct by co-workers
and conduct by supervisors.” Id. at 21. The court advised
the jury that if Ammons-Lewis had shown that Kelly had
supervisory authority over her, it should consult a sepa-
rate instruction setting forth the standard for employer
No. 05-3123                                                19

liability based on the conduct of a supervisor. Id. at 21; see
id. at 23-24. The jury was advised to consult a different
instruction on liability for co-worker harassment in the
event it determined that Kelly was not Ammons-Lewis’s
supervisor. Id. at 21; see id. at 22. That instruction set
forth the standard for employer liability based on the
conduct of one’s co-workers. Id.
  The jury was given a verdict form calling for separate
verdicts as to Claim One (co-worker harassment) and
Claim Two (harassment by Kelly). The portion of the form
concerning Claim Two posed two inquiries to the jury.
First, the jury was asked whether Kelly had supervisory
responsibility over Ammons-Lewis. If the jury answered
no to that inquiry, it was instructed to stop there. But if
it answered yes to that question, it was told to indicate
whether the District was liable for any harassment
allegedly perpetrated by Kelly. Id. at 30.
  The verdict form as completed by the jury at the con-
clusion of its deliberations reflected a verdict in favor
of the District as to Claim One but no answer as to either
of the questions regarding Claim Two. R. 129-10 at 1517,
1518. Without objection from the parties, the court ad-
monished the jurors that they must determine whether
Kelly was Ammons-Lewis’s supervisor and report a find-
ing in that regard; depending on their answer, they might
then have to address the second question as well. Id. at
1519-20. The jury then retired to resume deliberations.
Shortly thereafter, the jury sent a note to the court
indicating that it had not answered Claim Two because
it was under the impression that it need not do so if it
concluded that Ammons-Lewis had not established the
five elements of a hostile environment. Id. at 1525. At
that point, the court instructed the jury that if indeed it
had concluded that Ammons-Lewis had not proven con-
duct constituting sexual harassment, then it need not
report a finding as to whether Kelly was her supervisor,
20                                               No. 05-3123

but it should indicate whether the District was liable to
Ammons-Lewis based on Kelly’s alleged conduct. Id. at
1526. If, however, its finding was that Ammons-Lewis had
satisfied the five criteria for a hostile environment, then
it must render and report a finding as to whether Kelly
amounted to her supervisor. Id. The jury subsequently
completed the verdict form by reporting a verdict in
favor of the District on Claim Two. Id. at 1527.
  Ammons-Lewis contends that the jury’s initial failure to
report a verdict as to Claim Two evidences the confusing
and inadequate nature of the jury instructions. As we
have mentioned, it is her contention on appeal that the
instructions should have drawn a clearer line between the
two claims, providing entirely separate sets of instruc-
tions as to each.
  Ammons-Lewis did not object below to the form or
content of the relevant jury instructions, but Federal Rule
of Civil Procedure 51(d)(2) now allows for plain error
review of the instructions; in that respect, it represents
an exception to the general rule that plain error review
is unavailable in civil cases. See Schmitz v. Canadian
Pacific Ry. Co., 454 F.3d 678, 684 n.3 (7th Cir. 2006);
Higbee v. Sentry Ins. Co., supra, 440 F.3d at 409. Gener-
ally, we review jury instructions to determine whether
those instructions completely and accurately informed the
jury of the relevant legal principles. E.g., Schmitz, 454
F.3d at 681-82; Knox v. Indiana, 93 F.3d 1327, 1332 (7th
Cir. 1996). In making that determination, we examine
the instructions as a whole rather than in isolation from
one another. See id.; Byrd v. Ill. Dep’t of Public Health, 423
F.3d 696, 705 (7th Cir. 2005). We will reverse only if we
are convinced that an inaccuracy or omission in the instruc-
tions’ statement of the law misled or confused the jury to
the prejudice of the appellant. Schmitz, 454 F.3d at 682;
Byrd, 423 F.3d at 705. When our review is for plain error,
No. 05-3123                                              21

as it is here, the standard is obviously higher. Plain error
demands a showing not only that an error occurred which,
in retrospect, is obvious, but also that the error, among
other things, affected the substantial rights of the appel-
lant. Rule 51(d)(2); see generally Johnson v. United States,
520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997); see
also Higbee, 440 F.3d at 409.
  We find no plain error in the jury instructions warrant-
ing relief. Although the jury evidenced some confusion in
completing the verdict form, the likely source of the
confusion lay in the form itself rather than the jury
instructions. The instructions reflected a true and com-
plete summary of the relevant law, recognized the dis-
tinction between employer liability for the conduct of co-
workers and liability for the conduct of supervisors,
and gave the jury an accurate roadmap to follow in apply-
ing the law to the two different claims. The note that the
jury sent to the court explaining that it did not believe it
needed to assess Kelly’s status as a supervisor or co-
worker in the event it determined that Ammons-Lewis had
not presented sufficient proof of actionable sexual harass-
ment suggests that the jury understood the court’s instruc-
tions correctly and simply did not realize it was obliged to
report a verdict as to Claim Two even if it believed that
sexual harassment had not been proven. The court took
appropriate action—to which Ammons-Lewis did not
object—to correct the jury’s misunderstanding on this
score. We have no reason to believe that the jury’s verdict
as to either of the two sexual harassment claims was the
product of confusion or a misunderstanding of the law.


                            III.
  For the reasons discussed herein, we AFFIRM the jury’s
verdict in favor of the District as to Ammons-Lewis’s Title
VII claims of sexual harassment, and the court’s subse-
22                                         No. 05-3123

quent entry of judgment in favor of the District on her
parallel section 1983 claims.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                 USCA-02-C-0072—5-30-07
