In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-4047, 98-4056, 98-4127, 98-4291

Lisetta Molnar,

Plaintiff-Appellee, Cross-Appellant,

v.

Lloyd Booth and East Chicago
Community School Corp.,

Defendants-Appellants, Cross-Appellees.



Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:96 CV 259 JM--James T. Moody, Judge.


Argued September 24, 1999--Decided October 2, 2000



  Before Bauer, Ripple, and Diane P. Wood, Circuit
Judges.

  Diane P. Wood, Circuit Judge. This appeal comes
to us from a jury’s verdict in favor of plaintiff
Lisetta Molnar on her sexual harassment claims
against the East Chicago Community School
Corporation (East Chicago) and Lloyd Booth, the
principal of the junior high school where she
taught. She based these claims on both Title VII
and 42 U.S.C. sec. 1983. In addition to modest
awards of $500 each on the two theories, the jury
awarded $25,000 in punitive damages against Booth
and the court added $65,760 in attorneys’ fees
against both defendants. The defendants’ appeals
are based principally on the district court’s
denial of their motions for judgment as a matter
of law under Fed. R. Civ. P. 50, though they also
complain about other aspects of the trial, the
fees, and (in Booth’s case) the punitive damages.
Molnar cross-appealed from the court’s decision
to grant judgment as a matter of law on part of
her sexual harassment claim. Finding no
reversible error in any of the court’s decisions,
even taking into account the changed landscape
for sexual harassment claims after the Supreme
Court’s decisions in Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998), we
affirm.
I

  The account of the facts that follows presents
them in the light most favorable to Molnar, for
two reasons. To the extent we are considering the
Rule 50 motions filed by Booth and East Chicago,
we are obliged to view the facts in the light
most favorable to the non-moving party--that is,
Molnar. See Deimer v. Cincinnati Sub-Zero
Products, Inc., 58 F.3d 341, 343-44 (7th Cir.
1995). To the extent we are reviewing the jury’s
verdict, we must view the facts in the light that
supports its verdict. McCalpine v. Foertsch, 870
F.2d 409, 414 (7th Cir. 1989); LaMontagne v.
American Convenience Prods., Inc., 750 F.2d 1405,
1410 (7th Cir. 1984). With respect to the jury
instructions, evidentiary rulings, and
disposition of attorneys’ fees, our review of the
district court’s actions is essentially for abuse
of discretion (though the specific standard for
jury instructions cautions us to make sure that
the law was fairly stated to the jury).

  Molnar began working at Westside Junior High
School, which was part of East Chicago, on August
22, 1994. She had been engaged to teach art
classes as an intern, and she hoped to become
qualified to be a full-fledged teacher at the end
of her internship there. Booth was the principal
of Westside.

   On her first day of work, Booth ogled her and
made appreciative noises. He took her into his
office, closed the door, and put on music. He
then suggested that he and Molnar had much in
common and asked for her telephone number. During
the same conversation, he told her that he could
secure various benefits for her like a permanent
art room--a "perk" that she, like other junior
teachers, did not have--and supplies. She
perceived all of this as a sexual advance, which
made her uncomfortable.

  For a time, Booth’s unwelcome behavior
continued. Over the next three to four weeks he
called Molnar down to his office on a regular
basis during the class period set aside for
planning. He discussed "personal things." She
thought she saw him staring at her from outside
her classroom on several occasions. He showed her
a music room and a wrestling room as potential
art rooms. He invited her onto his boat. He
talked about how difficult it was to meet people
and have relationships and discussed the threat
of AIDS with her. Once he pulled his pants
tightly over his crotch, making Molnar think he
was calling attention to that part of his body.
Molnar felt intimidated by Booth, but she
rejected all of his advances.
  Her spurning of him had rather immediate
repercussions. Booth took back the art supplies
he had given her, and all talk of giving her an
art room evaporated. At one point Molnar asked
the Director of Secondary Education for East
Chicago, Charles Carter, for help in getting a
room. When Booth learned of the inquiry, he
became angry and told Molnar not to go over his
head again.

  Matters became worse at the end of the school
year. In May 1995, Booth gave the Indiana
Professional Standards Board an evaluation of
Molnar’s internship that could have been
understood as failing her. He specifically failed
her in two categories, but, in a contradictory
move, he also signed the back of the form.
Standing alone, the signature on the back of the
form would have meant that she could get her
license. On the other hand, the negative
evaluation on the face of the form meant that she
could not. The effect of the inconsistent
feedback from Booth meant, according to Molnar,
that she was not in a position to receive the
license.

  The rest of the evidence supports her view that
the failing evaluation was a serious matter.
Molnar learned of it in October 1995 when union
officials told her about it. She asked them to
file a grievance on her behalf complaining both
about Booth’s sexually harassing conduct and his
retaliation when she rejected him by failing her.
Around the same time, Booth learned that she was
protesting the evaluation, and he warned her,
"you don’t know what you’re getting yourself
into."

  The union officials followed through by
informing the school administrators of Booth’s
harassing and retaliatory conduct. One School
Board member testified that he had asked someone
to look into the matter, but no one ever talked
directly to Molnar, and in the meantime Booth
continued to haunt her. At the Board meeting of
November 27, 1995, union members formally
presented her grievance. Nothing happened except
Booth’s reappearance in her classroom a week
later, ostensibly to perform another evaluation.
This prompted the union to institute a formal
grievance proceeding. The Board scheduled a
hearing for three weeks after the union’s
presentation, but no hearing ever took place.
Instead, on December 27, the Board overturned the
conclusion that she had failed her internship. It
never made a decision on the sexual harassment
charges, nor did it take any disciplinary action
against Booth, who continued to serve as Molnar’s
principal for the remainder of that school year.
II

  Molnar filed her complaint against Booth and
East Chicago on August 15, 1996. She argued that
East Chicago had violated both Title VII and sec.
1983, and that Booth had violated sec. 1983,
through the sexual harassment she had suffered.
The case went to trial, where both defendants
moved under Fed. R. Civ. P. 50 for judgment as a
matter of law. The district court granted the
motions insofar as they sought to eliminate
Molnar’s claim based on "hostile environment"
sexual harassment (a commonly recognized category
before the Ellerth and Faragher decisions), but
it denied them otherwise.

  At the trial, over the defendants’ objection,
Molnar presented the testimony of Christine
Kolavo, another woman who had served her
internship under Booth’s supervision. Kolavo
testified that Booth had asked permission to call
and date her, and that when she refused, he had
discontinued his supervision of her and had asked
Vice-Principal Donna Vega to take over. The
defendants’ objection was based on relevancy and
potential prejudice; Molnar defended its
admissibility on three grounds: that it was
admissible to establish retaliatory intent, that
it was proper to impeach Booth’s testimony that
he had never asked out any female employee and
would never do so, and that it tended to show
that East Chicago was on notice of Booth’s
behavior. The district court agreed that it was
relevant to Booth’s intent and not unduly
prejudicial and on that basis admitted it.

  The defendants also object to the court’s
instructions to the jury, which were obviously
drafted before Ellerth and Faragher. The three
instructions at issue, numbers 4-6, all relate
expressly to Title VII liability and thus are
relevant only to the claims against East Chicago.
(Booth makes the erroneous statement in his brief
that because he cannot be liable under Title VII,
he should also be exempt from liability under
sec. 1983. That is not true. See Wudtke v. Davel,
128 F.3d 1057, 1064 (7th Cir. 1997) (and cases
cited there). Those three instructions as a whole
clearly showed that the court was restricting the
Title VII theory to East Chicago, as was proper.
The remaining instructions make it clear that it
was asking the jury to evaluate Booth’s conduct
only under sec. 1983.) East Chicago argues that
the three instructions misstated both pre- and
post-Ellerth and Faragher law and that this error
independently requires us to reverse and remand
for a new trial.

  The jury found for Molnar on both her Title VII
and her Equal Protection claims, awarding her
$500 in actual damages against East Chicago on
the Title VII count and $500 against Booth and
East Chicago on the sec. 1983 count. It also
awarded her $25,000 in punitive damages against
Booth on the sec. 1983 count. The district court
entered judgment on the verdict on March 16,
1998. In response to Molnar’s motion for costs
and attorneys’ fees, the court entered a final
order on October 29, 1998, awarding attorneys’
fees in the amount of $65,760 jointly and
severally against Booth and East Chicago. Booth
and East Chicago have appealed from the verdict
and fee orders against them, and Molnar has taken
a cross-appeal from the district court’s Rule 50
order dismissing her hostile environment claims.

III

  A.   Appeal of Booth and East Chicago

  Our review of the district court’s denial of
the defendants’ motions for judgment as a matter
of law under Rule 50 is de novo. See Deimer v.
Cincinnati Sub-Zero Products, supra, 58 F.3d at
343-44. In addition, it is particularly important
here to acknowledge that we apply the law as it
now is, including the Supreme Court’s intervening
decisions in Ellerth and Faragher. See Harper v.
Virginia Dept. of Taxation, 509 U.S. 86, 97
(1993).

  1.   Title VII

  Although Booth’s brief contains some references
to Title VII, we reiterate for the sake of
completeness the fact that the district court’s
instructions clearly indicated that it was not
permitting Molnar to pursue a Title VII claim
against Booth. This was correct, because an
individual supervisor does not fall within the
definition of the term "employer" for Title VII
purposes. See, e.g., Bryson v. Chicago State
Univ., 96 F.3d 912, 917 (7th Cir. 1996); Williams
v. Banning, 72 F.3d 552, 555 (7th Cir. 1995).
Thus, the jury was never invited to impose
liability on Booth under Title VII, it never did
so, and Booth has no grounds for complaining
about any ruling of the district court on a Rule
50 motion that addressed his liability under that
theory.

  East Chicago, in contrast, was Molnar’s employer
and it was therefore potentially liable to her
for a violation of that statute. The district
court also denied East Chicago’s Rule 50 motion
seeking to keep from the jury Molnar’s claim of
sexual harassment. Viewing the evidence in the
light most favorable to Molnar, and keeping in
mind the Supreme Court’s guidance in Ellerth and
Faragher for these claims, we find no error in
the court’s decision.

  In Ellerth and Faragher, the Supreme Court
established the standards that govern the
liability of an employer for sexually harassing
behavior of a supervisor toward a subordinate
employee. The Court abandoned the prior
distinction, for vicarious liability purposes,
between so-called quid pro quo harassment and
hostile environment harassment, in favor of a
test that distinguished between cases in which
the supervisor takes a tangible employment action
against the subordinate and those in which he
does not. Ellerth, 524 U.S. at 760-65; Faragher,
524 U.S. at 807. The employer’s liability in all
kinds of cases is determined under agency
principles, as the Supreme Court has developed
them.

  In general, employers bear vicarious liability
for the harassment committed by a supervisor, in
accordance with the following rules as summarized
in Faragher:

An employer is subject to vicarious liability to
a victimized employee for an actionable hostile
environment created by a supervisor with
immediate (or successively higher) authority over
the employee. When no tangible employment action
is taken, a defending employer may raise an
affirmative defense to liability or damages,
subject to proof by a preponderance of the
evidence. . . . No affirmative defense is
available, however, when the supervisor’s
harassment culminates in a tangible employment
action, such as discharge, demotion, or
undesirable reassignment.

524 U.S. at 807-08. Regardless of the vocabulary
then in use, Molnar therefore had to have
evidence in the record that, if believed by the
jury, would have shown that she was suffering
from sexual harassment. In addition, the question
whether the harassment led to a tangible
employment action was critical. If so, East
Chicago was liable without more; if not, East
Chicago was entitled in principle to the
opportunity to show (1) that it exercised
reasonable care to prevent and correct promptly
any sexually harassing behavior, and (2) that
Molnar unreasonably failed to take advantage of
any preventive or corrective opportunities
provided by her employer or to avoid harm
otherwise. Ellerth, 524 U.S. at 765; Faragher,
524 U.S. at 807.

  Though we consider it a close call, we conclude
that Molnar did show a "tangible employment
action," as the Court signaled that term should
be understood in Ellerth. Citing with approval
the concept of "tangible employment action" used
in this court’s decision in Crady v. Liberty Nat.
Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th
Cir. 1993), the Court highlighted indicia such as
"termination of employment, a demotion evidenced
by a decrease in wage or salary, a less
distinguished title, a material loss of benefits,
significantly diminished material
responsibilities, or other indices that might be
unique to a particular situation." Ellerth, 524
U.S. at 761. We reaffirmed the Crady test in our
post-Ellerth/Faragher decision in Ribando v.
United Airlines, Inc., 200 F.3d 507, 511 (7th
Cir. 1999). To similar effect, in Savino v. C.P.
Hall Co., 199 F.3d 925 (7th Cir. 1999), we said
that "[a] tangible employment action has to cause
a substantial detriment to the plaintiff’s
employment relationship." Id. at 932 n.8.
  The clearest tangible employment action shown in
Molnar’s evidence was Booth’s confiscation of the
art supplies he had given her--supplies the jury
could have believed were necessary for her to be
able to perform her assigned job. (Indeed, as we
discuss below, the jury was specifically told in
Instruction 6 that it had to find that Molnar’s
reaction to Booth’s advances "affected tangible
aspects of her employment." Its verdict for
Molnar indicates that it did so find.) This
deprivation was not something the School Board
ever fixed. At least as a temporary matter, the
negative evaluation Booth gave Molnar was also a
tangible employment action; the jury could have
believed that it spelled the end of a career for
an intern. The mere fact that the evaluation was
reversed more than six months later and Molnar’s
career put back on track does not diminish its
importance during the time it lasted. To hold
otherwise would mean that harassing supervisors
could demote employees who rejected their
advances with impunity, as long as they later
reversed the demotion and restored the employees
to their former positions. The short duration is
naturally relevant to the degree of damage Molnar
suffered from the evaluation, but the jury’s
verdict of $500 on this claim indicates strongly
that the jury was aware of that fact too.

  If, in the alternative, one were to dismiss the
confiscation of supplies as insufficiently grave
to amount to a tangible employment action, and
one were to recharacterize the evaluation as a
threat of a tangible action instead of a present
detriment, we would turn to the other half of the
Ellerth/Faragher test. Ordinarily, that would
require a remand so that East Chicago could have
the chance to prove its affirmative defense by a
preponderance of the evidence. Remand is not
necessary in all cases, however, as Faragher
itself illustrates. In Faragher, after outlining
its new affirmative defense, the Court concluded
that "[w]hile the City would have an opportunity
to raise an affirmative defense if there were any
serious prospect of its presenting one, it
appears from the record that any such avenue is
closed." 524 U.S. at 808. That was so because the
district court had found that the City had
entirely failed to disseminate its policy against
sexual harassment to its beach employees, its
officials made no effort to monitor the conduct
of its supervisors, and the policy had no
provision for bypassing the problematic
supervisors when someone wanted to register a
complaint. Id. The Court thus held as a matter of
law that the City could not establish the
affirmative defense.

  On the alternate hypothesis that Molnar did not
show a tangible employment action, we find the
same to be true in the present record. East
Chicago does not dispute Molnar’s assertion that
it had no policy specifically aimed at sexual
harassment. The only relevant policy East Chicago
puts forward as a potential basis for an
affirmative defense is the general policy it had
barring discrimination on the basis of race,
color, or sex. That policy was not a sexual
harassment policy: it did not provide any
guidance as to what employees should do in the
face of sexual harassment--it did not even
mention or define sexual harassment. (It is not
surprising, then, that Booth, various other East
Chicago employees, and union officials offered
uncontroverted testimony that they had no idea
(or were extremely confused about) what sexual
harassment was, and what they should do about
it.) Like the City in Faragher, East Chicago thus
could never show that it had exercised reasonable
care to prevent and correct promptly any
harassing behavior. It could not show that Molnar
unreasonably failed to take advantage of
corrective opportunities it provided, because it
provided none. It did not investigate Molnar’s
grievance; it set a hearing for three weeks
later, which was over twice the normal time
limit, and then it did not conduct one. There was
therefore enough evidence for Molnar to prevail
on this view of the facts as well.

  There is a certain amount of forcing a square
peg into a round hole when we evaluate evidence
and jury instructions that were organized and
drafted under an earlier view of the law
according to a later Supreme Court decision.
Nonetheless, this is the task the Court has given
us in Harper. In addition, since Rule 50 motions
are reviewed de novo in any event, we are free to
see if any rational jury could find in the non-
moving party’s favor. Here we have no trouble
saying that the answer is yes, under the now-
governing legal standards, and thus we find no
error in the district court’s decision to submit
the case to the jury.

  Our review of the jury instructions on the
Title VII claim, Instructions 4 and 5, is
similarly influenced by later changes. Once
again, the standard of review is a liberal one:
we look at jury instructions only to determine if
taken as a whole they were sufficient correctly
to inform the jury of the applicable law. Maltby
v. Winston, 36 F.3d 548, 560 (7th Cir. 1994).
Even if the instruction contains errors or
misguides the jury, the error is reversible only
if a litigant is prejudiced.

  Taken together with Instruction 6, we think
that the jury instructions were adequate. After
reciting the pertinent part of Title VII,
Instruction 4 told the jury that "[a] plaintiff
may establish a violation of Title VII by proving
that she was threatened with or suffered adverse
employment decisions for refusing unwelcome
sexual advances. This type of claim under Title
VII is called a claim of quid pro quo sexual
harassment or sexual discrimination." So far, so
good: Ellerth and Faragher permit both threats
and actual adverse actions to be actionable
(distinguishing between them only for purposes of
the affirmative defense), and it has been clear
since Meritor Sav. Bank F.S.B. v. Vinson, 477
U.S. 57 (1986), and Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), that sexual harassment
is encompassed within Title VII’s prohibition
against sex discrimination. Instruction 5 told
the jury that it had to find for the plaintiff on
each of four listed elements:

(1) the plaintiff was a member of a protected
class.

(2) the plaintiff was subject to unwelcome sexual
advances, requests for sexual favors or other
verbal or physical conduct of a sexual nature.

(3) the harassment complained of was based on sex.

(4) that she suffered or was threatened with a
materially adverse change in the terms or
conditions of her employment as the result of her
refusal to comply with the sexual requests and
advances.

Again, even though these would in all likelihood
not be the instructions that would be drafted
today, given Ellerth and Faragher, they
communicate the most important points to the
jury.

  It is the final paragraph of Instruction 6,
however, that led us earlier to resolve our
doubts in favor of concluding that the jury found
an actual tangible employment action. That
instruction was a classic "quid pro quo"
instruction, which told them that the employer
(i.e. East Chicago) was strictly liable for quid
pro quo harassment, which occurs when a
supervisor uses his supervisory authority either
by making submission to requests for sexual
favors a term or condition of the individual’s
employment, or by making submission or rejection
the basis for decisions affecting the individual.
The instruction concluded as follows: "Defendant
School Corporation, the employer, is thus
responsible or liable for the action of
plaintiff’s supervisor in plaintiff’s claim of
quid pro quo sexual harassment if plaintiff
Molnar proves, by a preponderance of the
evidence, that her reaction to Booth’s advance
affected tangible aspects of her employment."

  In our view, these instructions did not so
signficantly misstate the law as to require
vacation of this verdict and remand for a new
trial. In fact, in emphasizing that the action
had to be "based on sex," the district court
anticipated the Supreme Court’s later decision in
Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998).


 2.   Section 1983

  East Chicago purports to challenge the jury
instructions on both Title VII and sec. 1983, but
its brief makes it clear that the only
instructions it is attacking are 4, 5, and 6,
which pertained only to Title VII and which we
have already discussed. It also challenges the
district court’s denial of its Rule 50 motion on
the sec. 1983 claim, arguing that the evidence
did not show the kind of intentional
discrimination that is necessary for a claim
under the equal protection clause. Based on the
evidence, however, we believe this was properly
a question for the jury. For example, the lack of
any policy addressed to sexual harassment was
East Chicago’s responsibility, not Booth’s.
Furthermore, East Chicago offers little in the
way of argument in support of its claim other
than analogies to Title VII. Thus, even if there
were points unique to sec. 1983 that it might
have developed, it did not do so, and we will not
undertake that task.

  As far as Booth is concerned, we have already
noted his error in assuming that because he is
not a proper defendant for Title VII, he cannot
be held individually liable under sec. 1983. That
mistaken premise forms the basis for most of the
rest of his arguments, which point out various
alleged errors in the Title VII jury
instructions. Once again, there was evidence in
the record on which the jury was entitled to
rely, and we see no reversible error in the
district court’s decision to submit the case to
them.


  3.   Admission of Kolavo Testimony

  As we noted earlier, Christine Kolavo testified
at trial on Molnar’s behalf. Kolavo was a former
employee whom Booth had supervised. She recounted
an incident in which Booth had followed her out
to her car and asked for her telephone number.
Kolavo refused to give it to him and then
reported the "come on" to Assistant Principal
Vega. Vega then offered to supervise Kolavo
directly. Kolavo did not make any report to the
general school administration.

  The defendants argued that Kolavo’s testimony
was irrelevant and prejudicial; Molnar responded
that it tended to show either Booth’s retaliatory
intent or his discriminatory motive, that it
impeached Booth’s testimony that he had never
asked out a person under his supervision and
would not do so, and that it gave East Chicago
notice of Booth’s conduct. The district court,
whose decision here we review only for abuse of
discretion, admitted it, and did not give an
instruction telling the jury it could be
considered only for impeachment.

  We are not impressed with the argument that
this evidence gave East Chicago notice about
Booth’s behavior, especially because Kolavo
herself did not alert the administration to the
incident. Nor does it show anything about
retaliatory intent, either with respect to Kolavo
herself or with respect to Molnar. Discriminatory
motive, or more accurately modus operandi, comes
closer to the mark. Rule 404(b) allows the
admission of evidence of other acts if it tends
to prove facts like intent, preparation, and
absence of mistake. Booth’s effort to establish
a sexual relationship with Kolavo (which was the
way she saw it) suggests that he intended to do
the same with Molnar and that he was not
accidentally engaged in behavior that could be
misconstrued. This was not the entirety of what
Molnar needed to prove, but the request for
sexual favors was a piece of the evidentiary
puzzle, and as such, evidence tending to make the
existence of that fact more probable was
admissible. See also Fed. R. Evid. 401. In
addition, and perhaps even more clearly, the
evidence was admissible for impeachment purposes.
The fact that no limiting instruction to that
effect was given was the defendants’ own fault,
as they never requested one.

  Finally, even if the Kolavo evidence would have
been better left out (that is, even if the
district court’s decision to allow it was an
abuse of discretion), we find that the error was
harmless. See Fed. R. Evid. 103; 28 U.S.C. sec.
2111. Both defendants took advantage of ample
opportunities at trial to argue that Booth’s
actions toward Kolavo were not discriminatory and
that East Chicago did not derive any notice from
them. Furthermore, the evidence did not report
shocking behavior; it was about a simple social
request that the listener found inappropriate and
that was rebuffed. The jury was thus able to
place this one piece of evidence in its proper
perspective.


  4.   Punitive Damages Against Booth

  Booth claims that the jury’s award of $25,000
against him was excessive, because there was
insufficient evidence for it to find that he had
the requisite scienter to support punitive
damages. Unfortunately, he has done little to
preserve this point properly. He never moved for
judgment as a matter of law on punitive damages,
nor did he move for a new trial after the jury
returned its verdict and the trial court entered
its order. Never having asked the district judge
to fix this problem, it is too late in the day to
ask us to do so.

  At least in this procedural posture, we find
nothing reversible here. Under Kolstad v.
American Dental Ass’n, 527 U.S. 526 (1999), a
defendant must behave with malice or reckless
indifference in order for a court to impose
punitive damages on him. Id. at 535. The terms
"malice" and "reckless indifference" "pertain to
the employer’s knowledge that it may be acting in
violation of federal law, not its awareness that
it is engaging in discrimination." Id. The Court
specifically rejected an additional "egregious
misconduct" requirement that the court of appeals
had engrafted onto the statute.

  The events here took place in 1994, long after
the law of sexual harassment had become well
established by the Supreme Court. The jury could
have found that Booth (the relevant actor here,
since we are considering only the sec. 1983
theory) acted with malice or reckless
indifference toward Molnar, particularly after
she rejected his advances. Booth also attacks the
amount of the award, $25,000, as grossly
excessive. We realize that this is a significant
amount of money for an individual, but as a
matter of law $25,000 is not so far out of line
that it must be reduced. We upheld a similar
punitive damages award in Merriweather v. Family
Dollar Stores of Indiana, 103 F.3d 576, 581 (7th
Cir. 1996), another sexual harassment case.
Assuming as we must that the jury believed
Molnar’s account and not Booth’s, this award is
not "monstrously excessive."


  B.   Molnar’s Cross-Appeal

  Molnar’s cross-appeal focuses on the district
court’s dismissal of her "hostile environment"
theory of sexual harassment. But, just as we had
to evaluate the verdict in her favor under
current Supreme Court law, we must evaluate this
part of the case under the current law as well.
Many of the facts Molnar put forth fit more
comfortably under the old "hostile environment"
rubric than they did under the "quid pro quo"
classification: facts like Booth’s habit of
standing outside her classroom and ogling her,
calling her to his office continuously, and
persistently asking for her telephone number to
the point where she started avoiding the
lunchroom and common areas lest she find him
there. But Molnar was able to introduce this
evidence at the trial, and jury instructions 4
and 5 allowed the jury to consider threats as
well as actions. Even though instruction 6 called
for the jury to find an effect on "tangible"
aspects of her employment, the fact is that the
jury did so. Molnar would have a stronger case
for reversal if the jury had rejected her case
under this arguably more demanding standard. The
loss of the chance here to present more squarely
to the jury the question whether the harassment
was sufficiently severe or pervasive to amount to
a hostile environment was unimportant given the
way things worked out.

  It would be pointless in our view to send this
case back for a retrial on a theory that the
Supreme Court has since rejected. Our review of
this record satisfies us that Molnar was able to
put before the jury all relevant evidence, and
the jury was able as a practical matter to
consider the very points it would look at under
a proper Ellerth/ Faragher set of instructions.
We therefore find no reversible error in the
district court’s grant of judgment as a matter of
law on this part of her case.


  C.   Attorneys’ Fees

  The district court awarded $65,760 in attorneys’
fees jointly and severally against both
defendants. They assert that it abused its
discretion in doing so (which is the proper
standard of review). We do not find the award to
be so far out of line that it must be
reconsidered. Molnar in the end walked away with
$35,000 in total damages: $1,000 actual damages
on the two counts, and $25,000 punitive damages.
The fees are a little less than double that. In
addition to winning her monetary award, she was
also instrumental in causing East Chicago to
institute a sexual harassment policy in the wake
of her case.

  East Chicago also argues that the fees should
have been apportioned between the defendants,
rather than being imposed jointly and severally,
because the monetary award against it was so much
smaller than the award against Booth. Again, even
though this might have been reasonable, we do not
find the district court’s refusal to do so an
abuse of discretion. When two or more defendants
actively participate in a constitutional
violation, they can be held jointly and severally
responsible for indivisible attorneys’ fees. See
Herbst v. Ryan, 90 F.3d 1300, 1305 (7th Cir.
1996). A number of factors govern the decision
whether to apportion or to use joint and several
liability: the relative active or passive role
each defendant played, fairness, and the goal of
reimbursing private attorneys general. Id.
Molnar’s attorneys’ fees were indivisible,
because so many of the issues against the two
defendants were the same or similar. As in
Herbst, Booth could have been seen as an
important moving force behind East Chicago’s
policies (or lack thereof at the pertinent time).
This is enough, in our view, to keep the district
court’s decision within the bounds of its
discretion.

IV

  The judgment of the district court is Affirmed.
