Jeffrey Cash v. Illinois Division of Mental Health, d/b/a Warren G. Murray Developmental Center

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1456
JEFFREY CASH,
Plaintiff-Appellant,
v.
ILLINOIS DIVISION OF MENTAL HEALTH,
d/b/a Warren G. Murray Developmental Center,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 C 473--Paul E. Riley, Judge.
Argued February 7, 2000--Decided April 7, 2000
Before KANNE, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Jeffrey Cash sued the
Illinois Division of Mental Health (IDMH) for
sexual harassment under Title VII following a
long stretch in which he was taunted at work
because his co-workers thought him to be a
closeted homosexual. After a bench trial the
court denied the claim, finding that IDMH acted
appropriately, that the harassment was not
pervasive, and that it was not directed at Cash
because of sex. Cash moved for a new trial,
arguing that the district judge erroneously
excluded key evidence, misinterpreted the
evidence that was presented, and overlooked a
theory of the case that would have permitted
recovery. Today we consider Cash’s appeal of the
denial of this motion.
In 1988 IDMH hired Cash to work as a nurse’s
aid in the Murray Developmental Center, a home
for developmentally disabled people in Centralia,
Illinois. Cash performed ably, and for the first
7 years he voiced no complaints about his work
environment, his employer, or his fellow
employees. Indeed, for a time, the job supported
what looked to be a secure and happy life: Cash
lived in his own home with his wife and children;
he owned a couple of cars; and he even had a
power boat which he used to fish the scenic lakes
of Southern Illinois.

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Ironically, it was just such a peaceful fishing
expedition that set in motion the events that
gave rise to this suit. In the summer of 1995
Cash invited fellow Murray employee, Donny Hodge,
for a Saturday’s worth of fishing aboard Cash’s
boat. The two stayed out all day, and upon
returning to Hodge’s house that night, they
agreed to try their luck again on Sunday. Since
Cash’s wife and kids were visiting their
grandparents, Hodge asked Cash if he wanted to
stay over and Cash accepted. On Sunday the two
enjoyed another day of fishing.
But Hodge is gay and most everyone, it seems,
at Murray knew it. Once the fishermen returned to
work, rumors started to fly that they were having
an affair. Interestingly, the story did not cause
the kind of trouble one might expect. Rather than
enduring verbal abuse about his alleged
homosexuality from insecure, macho male
colleagues, Cash began to take flak from a group
of female co-workers about his perceived failure
to emerge from the closet and embrace his
homosexuality.
While this scenario might not fit neatly into
an established cannon of bigotry--a pack of women
berating a man for not coming out of the closet
is a distinctly modern phenomenon--Cash’s
tormentors made the next year of his life at work
rather miserable. They laughed at Cash while
simulating fellatio or male masturbation, called
him a "he/she" or "the evil one," and bared their
breasts and shook them at him while laughing. One
woman even rubbed her bare breasts against Cash’s
arm following a union meeting. Over time, Cash
became short-tempered, paranoid, and depressed.
He eventually sought psychiatric counseling,
which both he and his therapists say stemmed from
his stressful working conditions.
As we said, Cash filed suit under Title VII,
lost at trial, and then moved for a new trial. In
the motion, he argued that the court committed a
variety of evidentiary miscues and then
erroneously assessed the evidence to settle on
factual findings that were not supported by the
record. He also asserted that the court
overlooked a theory of the case that would have
allowed him to recover under Title VII--that he
was discriminated against, not for his perceived
homosexuality, but because he failed to live up
to dominant male stereotypes.
In rejecting these contentions the district
court found that Cash did not point to any
evidence that would have changed its factual or
legal conclusions. The court stated that Cash
wanted to present facts not introduced at trial,

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that he failed to show that the court erroneously
excluded certain testimony and exhibits, and that
Cash’s stereotype argument constituted an attempt
to re-try the case under a theory that was never
advanced at trial.
Cash’s motion for a new trial was not timely
filed./1 Nevertheless, in rejecting it the
district judge considered it properly filed under
Rule 59. That was generous, for the motion should
have been judged under the more restrictive
regimen of Rule 60(b). That is what we will do.
The denial of Rule 60(b) motions are reviewed
for abuses of discretion. Cincinnati Ins. Co. v.
Flanders Elec. Motor Serv., Inc., 131 F.3d 625,
628 (7th Cir. 1997). But the rule is not intended
to correct mere legal blunders, see Russell v.
Delco Remy Div. of General Motors Corp., 51 F.3d
746, 749 (7th Cir. 1995), so we limit our
consideration to discerning whether the district
court erred in assessing factors that could
render the judgment vulnerable to attack i.e.,
mistake, inadvertence, surprise, excusable
neglect, newly discovered evidence or fraud.
This standard of review eviscerates Cash’s
appeal. His arguments--that the court wrongly
excluded evidence, misinterpreted the evidence
that was presented, and did not understand his
theory of the case cannot be shoe-horned into
grounds for Rule 60(b) relief. The rule is not an
alternate route for correcting simple legal
errors. Rather, it exists to allow courts to
overturn decisions where "special circumstances"
justify an "extraordinary remedy." See Russell,
51 F.3d at 749. Cash’s appeal presents no such
case. He simply tripped over the time clock and
wants to be able to appeal as if he did not. Were
we to allow appellants to follow this route, the
rules governing the timeliness of appeal would
quickly lose their bite, and one of the law’s
primary purposes--to settle disputes finally--
would be undermined. Since Cash’s arguments fall
outside the class of mistakes Rule 60(b) exists
to correct, they fail. The decision of the
district court is
AFFIRMED.
/1 The notice of appeal on the merits of the
original judgment was also late and is not
properly before us.

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