Rosemary Higbee v. Sentry Insurance C O .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1502
R OSEMARY H IGBEE ,
Plaintiff-Appellant,
v.
S ENTRY I NSURANCE C O .,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 1349—Matthew F. Kennelly, Judge.
____________
A RGUED D ECEMBER 8, 2005—D ECIDED M ARCH 3, 2006
____________
Before B AUER , P OSNER , and K ANNE , Circuit Judges.
K ANNE , Circuit Judge. After a trial on the merits, a jury
found for Sentry Insurance on Rosemary Higbee’s claims of
sexual harassment and age discrimination. The issue
presented by this appeal is quite limited: whether the
district court erred in instructing the jury as to who is a
“supervisor” for purposes of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq. Because Higbee failed to
object to the instruction, and there was no plain error, we
affirm.
The basis of Higbee’s argument, which we will assume
is true, is that under the facts of her case she would have
fared better at trial if it were not for this circuit’s “cramped”
definition of “supervisor.” See Rhodes v. Ill. Dep’t of Transp.,

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2 No. 04-1502
359 F.3d 498, 506 (7th Cir. 2004) (explaining that “[a]
supervisor is someone with the power to directly affect the
terms and conditions of the plaintiff’s employment” (empha-
sis in original) (citing Parkins v. Civil Constructors of Ill.,
Inc., 163 F.3d 1027, 1034 (7th Cir. 1998); Hall v. Bodine
Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002))). She implores
us to adopt the test utilized by the Second Circuit, which
she describes as broader and more consistent with the goals
of Title VII. See Mack v. Otis Elevator Co., 326 F.3d 116,
126-27 (2d Cir. 2003) (criticizing the Parkins standard as
too narrow and adopting the broader standard of “whether
the authority given by the employer to the employee
enabled or materially augmented the ability of the latter to
create a hostile work environment for his or her subordi-
nates”).
It is true that there has been some dissatisfaction ex-
pressed with our definition of supervisor. Rhodes, 359 F.3d
at 510 (suggesting “that we ought to re-examine the criteria
we have articulated for identifying supervisors” out of
concern that the current standard is too narrow) (Rovner,
J., concurring). But we need not address that issue today;
Higbee has forfeited the right to make the argument, and
we find no plain error. Whether or not our definition of
supervisor needs retooling will wait for another day and
another case.
At Higbee’s trial, the issue of who was a supervisor
was the threshold issue as to the sexual discrimination
claim. The district court—consistent with Rhodes, Hall and
Parkins—instructed the jury that a supervisor was one who
“had the authority to directly affect the terms and condi-
tions of [Higbee’s] employment.” Higbee did not object to
this instruction. Furthermore, after losing at trial, Higbee
did not object in a post-trial motion. Instead, Higbee’s post-
trial motion argued that “[t]he jury’s finding that [the
alleged harasser] was not Plaintiff’s supervisor was against

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No. 04-1502 3
1 Before its most recent change, the relevant portion of Rule 51
stated: “No party may assign as error the giving or the failure
to give an instruction unless that party objects thereto before
the jury retires to consider its verdict, stating distinctly the
matter objected to and the grounds of the objection.”
the manifest weight of the evidence.” No mention was made
of error in instructing the jury.
As we explain below, we have no difficulty concluding that
Higbee’s failure to object to the jury instruction is fatal to
this appeal. But the lack of an objection does not preclude
the possibility of review as Sentry argues. In the past, as
Sentry notes, we have refused to engage in any review of
jury instructions in a civil case where no objection was
made. Chestnut v. Hall, 284 F.3d 816, 819 (7th Cir. 2002)
(“Failure to challenge a jury instruction in a civil case
results in a waiver and precludes appellate review.”)
(citations omitted); Deppe v. Tripp, 863 F.2d 1356, 1362 (7th
Cir. 1988). There were two primary reasons for this, both
based on the language of the Federal Rules of Civil Proce-
dure. First, there is no provision in the rules generally
allowing for plain error review, which led us to conclude
that the “plain error doctrine, at best, has an extremely
limited application in civil litigation.” Deppe, 863 F.2d at
1361. Second, the previous language of Rule 51 was not just
silent on the issue of plain error review for jury instruc-
tions, but instead indicated that such review was prohib-
ited. 1 Id. at 1362.
The rules have since changed, however. Effective Decem-
ber 1, 2003, the rules now explicitly allow for plain error
review of jury instructions in a civil case. Fed. R. Civ. P.
51(d)(2) (stating that a “court may consider a plain error in
the instructions affecting substantial rights that has
not been preserved”). But such review is still quite li-
mited, discretionary, and in this case, of no help to Higbee.

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4 No. 04-1502
The Advisory Committee notes to the new Rule 51 make
clear that we should be guided by the principles of plain
error in the criminal context, see United States v. Johnson,
520 U.S. 461, 466-67 (1997) (explaining that unpreserved
errors may be corrected when there is (1) an error, (2) that
is plain, (3) that affects substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of
judicial proceedings), while keeping in mind that the
application of the doctrine may differ in the context of
civil litigation.
What we have here is no error at all. The district court
properly applied the law of the Seventh Circuit in instruct-
ing the jury, law which remains in force today. And we
see no reason to reconsider our precedent on this appeal.
This case began in 1997 and in the years since then Higbee
has had a full opportunity to present her claims, including
a jury trial on the merits where she could have made
the legal challenge she makes now. The interests of jus-
tice would not be served by further prolonging this al-
ready lengthy litigation to consider changing the law
Higbee was satisfied with until she lost.
Accordingly, the judgment is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-3-06

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