Gerald Schobert and Ronald E. Werner v. Illinois Department of Transportation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1598
G ERALD S CHOBERT AND R ONALD E. W ERNER
Plaintiffs-Appellants,
v.
I LLINOIS D EPARTMENT OF T RANSPORTATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois, East St. Louis Division.
No. 99-CV-67—Michael J. Reagan, Judge.
____________
A RGUED J ANUARY 8, 2002—D ECIDED S EPTEMBER 16, 2002
____________
Before P OSNER , C OFFEY , and D IANE P. W OOD , Circuit
Judges.
D IANE P. W OOD , Circuit Judge. This appeal follows a jury
verdict in favor of the defendant Illinois Department of
Transportation (IDOT). Gerald Schobert and Ronald
Werner, maintenance workers for IDOT, accused their
employer of violating Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. They argued unsuccessfully
to the jury that IDOT discriminated against men by per-
mitting the one woman in the maintenance department to
be a “beneficiary” of what they called quid-pro-quo sexual
harassment. They also maintained that they were retali-

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2 No. 01-1598
ated against after complaining about the discrimination.
Schobert and Werner now appeal the district court’s denial
of their motion for a new trial, arguing that the jury was
improperly instructed. We affirm the judgment of the dis-
trict court.
I
Schobert and Werner were employees in IDOT’s highway
sign shop in Fairview Heights, Illinois. Their responsibili-
ties included installing and maintaining signs, marking
pavement, and painting lines on the highway. One—and
only one—of their colleagues was female: Tame Roth. Much
of their trial testimony centers around her, and the prefer-
ential treatment they believed she received. Werner and
Schobert testified that Roth received special treatment
because of her sex. For example, Werner claimed that he
saw Roth sit in a suggestive way on Blake Pfannebecker,
the lead worker responsible for determining assignments.
Schobert also claimed Roth once took her shirt off in front
of an assistant technician (a position above other lead
workers such as Pfannebecker).
In addition, Werner and Schobert testified that Roth
received special treatment at the sign shop. They main-
tained that Roth was not required to do the more difficult
and dangerous jobs and that she never performed the
preventative maintenance work on her assigned truck
required of other employees. Schobert further claimed that
when he was forced to work with Roth, all the undesirable
assignments were reassigned to either him or other male
employees.
In September 1997, Schobert backed a truck into another
vehicle, causing substantial damage. He was given notice of
a pre-disciplinary hearing to review the incident. After
Schobert received the notice, he filed an internal complaint

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No. 01-1598 3
of sex discrimination because his complaints regarding
Roth’s special treatment were being ignored. In his com-
plaint, he asserted that IDOT provided Roth preferential
treatment because of her sex. Schobert, this time with
Werner’s signature as well, then filed a complaint with the
Equal Employment Opportunity Commission (EEOC) again
alleging sex discrimination.
IDOT interviewed Schobert, Werner and others regarding
the internal sex discrimination complaint. Soon after the
interview, Schobert and Werner first experienced what they
considered to be retaliation. Their complaints range from
being forced to work in unsafe conditions to being unfairly
subject to discipline. For example, Schobert testified that he
was forced to use a cutting torch near natural gas, that he
was assigned to dig on an interstate that had not yet been
“JULIE’d” (checked and marked for underground wires and
utilities), and that he and Werner were forced to miss part
of the training on safety harnesses. Schobert also alleged he
was assigned for months to remove and install delineators
(steel posts with reflectors on the side of the road) without
proper equipment, even though such arduous work is or-
dinarily rotated. This assignment continued until he was
forced to go on leave because of back and hand problems.
Schobert and Werner further testified that IDOT retali-
ated by giving them incorrect assignments and blaming
them for other employees’ mistakes—all conduct that could
and did result in negative employment evaluations. For
example, Schobert claims that Pfannebecker tried to get
him to submit a false time sheet, that he and Werner were
blamed for leaving the gate to the supply yard open, and
that they were given conflicting assignment information by
the supervisors and were then blamed for the resulting
confusion. Schobert and Werner also complained that they
were forced to work with Joe Marti, the crew chief at the
sign shop, who would stop for lunch breaks in places that
had no bathroom and where they could not purchase lunch
as they liked to do. Finally, when Werner was crew lead-

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4 No. 01-1598
er he was reprimanded for unfairly rotating duties. Al-
though some of these incidents led to negative evaluations,
Schobert and Werner were never disciplined and continued
to be employed by IDOT.
Although the jury heard all of this, most of what we have
recounted thus far came from either Schobert and Werner.
The problem for them, in a nutshell, is that the jury was
not compelled to accept their version of these events, or
their interpretation of the motivations behind these actions.
Instead, at this stage we must take the facts in the light
most favorable to IDOT, the winner of the jury verdict.
EEOC v. Bd. of Regents of Univ. of Wis. Sys., 288 F.3d 296,
301 (7th Cir. 2002). The jury had a considerable amount of
evidence in front of it that was contrary to Schobert’s and
Werner’s testimony, and it chose to believe IDOT’s wit-
nesses. IDOT denied it ever discriminated against or har-
assed Schobert or Werner. Roth and Pfannebecker main-
tained that she never sat on Pfannebecker’s lap, and Roth
also testified that she never removed her shirt in another
employee’s truck. Finally, IDOT offered testimony that
Schobert expressed derogatory views about women gener-
ally, and that he openly expressed the opinion that women
should not be in the workplace or have supervisory roles.
Pfannebecker and Dan Myers, head of the sign shop, also
testified that Schobert and Werner had personality conflicts
with sign-shop management and that they did not make
good-faith efforts to perform assignments.
After surviving pretrial motions, this case was tried to
a jury on Schobert’s sex discrimination claim as well as
Schobert’s and Werner’s retaliation claims. At the close of
evidence, the district court submitted a series of instruc-
tions to the jury. Schobert and Werner objected specifically
to Court’s Instructions 12 and 13. Court’s Instruction
12 stated with reference to Schobert’s sex discrimination
claim:

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No. 01-1598 5
Gerald Schobert claims that he sustained damages and
that the Department of Transportation of the State of
Illinois intentionally discriminated against him because
of his sex in one or more of the following respects.
In giving him significantly worse job assignments
than were given to a female employee.
In allowing a female employee to refuse undesirable
job assignments.
Schobert further claims that the foregoing directly re-
sulted in his damages.
Defendant denies that it discriminated against Scho-
bert because of his sex and denies that any act or
omission on its part directly resulted in Schobert’s
claimed damages. The defendant further denies that
Schobert sustained damages.
Court’s Instruction 12 contained similar instructions on
Schobert’s and Werner’s retaliation claims.
Although we are only reproducing the portion of Court’s
Instruction 13 that applied to Schobert, the part of the
instruction applicable to Werner’s claim was identical. On
the retaliation claims, Schobert and Werner each had to
prove:
First, that the defendant intentionally acted in the way
claimed by Schobert stated to you in these instructions;
Second, that Schobert suffered adverse employment
action, as that term is defined in these instructions,
Third, that there was a causal connection between
Schobert’s internal claim of sex discrimination and/or
his filing a Charge of Discrimination with the United
States Equal Employment Opportunity Commission
and the adverse employment action,
Fourth, that Schobert suffered damages,

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6 No. 01-1598
Fifth, that Schobert’s damages were a direct result of
defendant’s wrongful conduct. . . .
Schobert and Werner argued Court’s Instruction 12 im-
properly required the jury to find that Schobert and Werner
sustained damages to prevail. They further objected to
Court’s Instruction 13, arguing that it incorrectly in-
structed the jury on the elements of a prima facie case for
retaliation, which was no longer relevant after the case was
submitted to the jury. The district court did not alter the
instructions, emphasizing that Court’s Instruction 13 was
“not an instruction as to the prima facie case, but instead
is an instruction as to the burden of proof.”
The jury found in favor of IDOT, and Schobert and
Werner filed a motion for a new trial, claiming they were
prejudiced by the jury instructions. The district court
denied the motion and they appeal from that order.
II
The centerpiece of the appeal is the attack on the jury
instructions just set forth. Schobert and Werner claim that
these instructions misstated the law and that they suffered
prejudice from the inaccuracies. We review a district court’s
decision on a motion for a new trial only for abuse of dis-
cretion, as we recognize the district court is in a unique
position to rule on the motion. Research Sys. Corp. v.
IPSOS Publicite, 276 F.3d 914, 921 (7th Cir. 2002). When
a motion for a new trial under Fed. R. Civ. P. 59 is based on
a challenge to jury instructions, we consider a trial court’s
jury instructions with deference, analyzing them as a whole
to determine if they accurately stated the law and did not
confuse the jury. Knox v. Indiana, 93 F.3d 1327, 1332 (7th
Cir. 1996); Maltby v. Winston, 36 F.3d 548, 560 (7th Cir.
1994).

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No. 01-1598 7
As an initial matter, IDOT claims that Schobert and
Werner failed properly to preserve their objections as re-
quired by Fed. R. Civ. P. 51. Rule 51 provides in relevant
part that any party wishing to contest a jury instruction
must distinctly state the matter objected to and the ground
of the objection. The objection must be specific enough that
the nature of the error is brought into focus. Knox, 93 F.3d
at 1333; Mankey v. Bennett, 38 F.3d 353, 361-62 (7th Cir.
1994). The party must also explain what is wrong with the
proposed instruction; it is not enough simply to submit an
alternative instruction. Pena v. Leombruni, 200 F.3d 1031,
1035 (7th Cir. 1999). There are no formal requirements, but
pragmatically speaking the district court must be made
aware of the error prior to instructing the jury, so that the
judge can fix the problem before the case goes to the jury.
Guerts v. Barth, 892 F.2d 622, 624 (7th Cir. 1989). Consis-
tency is required as well; to preserve the objection, the
party must state the same grounds when objecting to the
jury instruction as it does in its motion for a new trial or on
appeal. Charles A. Wright, Arthur R. Miller & Edward H.
Cooper, F EDERAL P RACTICE & P ROCEDURE 2d § 2554 (2d ed.
1997).
IDOT admits that Schobert and Werner objected to these
instructions. However, it argues that their objections were
so vague they could not meet the requirements of Rule 51.
Schobert’s and Werner’s specific objection to Court’s In-
struction 12 was that “it requires the jury to find that Mr.
Schobert and Mr. Werner sustained damages in order for
them to prevail on their claims of discrimination and
retaliation.” As for Instruction 13, Schobert and Werner
stated:
the jury is going to have to find that Mr. Schobert and
Mr. Werner suffered damages in order to establish their
claims of gender discrimination and retaliation. Also,
we would object in that it states the elements of prima
facie case . . . and, we believe that there is no more

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8 No. 01-1598
requirement of showing an adverse employment action
in order to establish a case of actionable retaliation.
We are satisfied that this was a specific enough objection
to serve the purpose for which Rule 51 was designed.
Schobert and Werner made it clear that they thought the
instructions were flawed in three respects: (1) they errone-
ously required the plaintiffs to prove damages to prevail, (2)
they wrongly submitted the prima facie case to the jury,
and (3) they incorrectly required the plaintiffs to prove an
adverse employment action for their retaliation theory. This
was enough to alert the district court to the pertinent areas
of disagreement.
IDOT also criticizes Schobert and Werner for failing to
present their preferred instruction to the district court. It
maintains that the district court probably misunderstood
the grounds for the instruction because of their failure to
propose that the district court use the term “injury” instead
of the term “damages” in the two instructions (which they
think would have been preferable). IDOT goes on to state
that Schobert and Werner should have told the district
court that they were satisfied with IDOT’s proposed in-
struction, which (according to IDOT) would have resolved
their concerns. However, IDOT cites no case to support its
argument that a party must approve of the opposing party’s
proposed instruction, which was also rejected by the district
court, to preserve a Rule 51 objection. Schobert and Werner
informed the district court that they objected to the use of
the term “damages” and the requirement that they estab-
lish a prima facie case; that is all they needed to do.
Schobert and Werner argue that Court’s Instructions 12
and 13 were inaccurate statements of law and were incon-
sistent with other instructions, which confused the jury.
This court looks at jury instructions in their entirety when
determining whether they properly informed the jury of the
applicable law. Reed v. Union Pac. R.R. Co., 185 F.3d 712,

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No. 01-1598 9
715 (7th Cir. 1999). We are not looking for an “idealized set
of perfect jury instructions,” Knox, 93 F.3d at 1333, but the
jury instructions must be correct legal statements and
supported by the evidence. Jaffee v. Redmond, 51 F.3d
1346, 1353 (7th Cir. 1995). If an instruction is so mislead-
ing that a party was prejudiced, then reversal is required.
Humphrey v. Staszak, 148 F.3d 719, 723 (7th Cir. 1998).
Court’s Instruction 12 required Schobert and Werner to
prove that they suffered damages, and that their damages
were a result of wrongful conduct. Schobert protests that
under these instructions, IDOT could discriminate against
him on the basis of his sex, but he would not prevail if he
could not show damages. Similarly, Schobert and Werner
could prove they were subjected to unfair working condi-
tions and disciplinary actions, but would not prevail if they
could not demonstrate material damage. They argue that
this statement confused the jury because Title VII plaintiffs
do not have to prove damages, but must only prove discrim-
ination. (A prevailing party in a case with no concrete
damages like lost wages would still be entitled to an award
of nominal damages.) Schobert and Werner thus urge this
court, on the basis of authority such as Kyles v. J.K. Guard-
ian Sec. Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000)
(finding that employment discrimination “testers” who were
discriminated against had standing to sue under Title VII
even if they were not interested in employment), to find
that discrimination need not result in any damage, but that
it is the discrimination or unequal treatment that allows
plaintiffs to recover.
The problem with their argument (and for that matter,
with the court’s instructions, which we deal with in a
moment) is that it confuses the idea of monetary damages
with the idea of harm. Even in cases with no monetary
consequences to the plaintiff, it is still necessary for the
plaintiff to prove at least a dignitary harm. We know of no
authority that would permit us to find that no demonstra-

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10 No. 01-1598
tion of harm is required to prevail. Every tort, whether it be
one derived from common law or a statutory tort like Title
VII, requires a showing of harm. JTC Petroleum Co. v.
Piasa Motor Fuels, Inc., 190 F.3d 775, 778 (7th Cir. 1999);
see also Timm v. Progressive Steel Treating, Inc., 137
F.3d 1008, 1010 (7th Cir. 1998) (“a plaintiff must suffer
some injury”) (emphasis in original). Indeed, Schobert and
Werner even argued to the jury that they were injured. For
example, Schobert asserted that he was assigned tasks on
the basis of his gender and treated differently. That is a
perfect example of harm that did not translate into dollars
and cents: his salary was unaffected, but he allegedly suf-
fered from undesirable job assignments and bearing the
brunt of others’ preferred treatment.
Schobert is correct that discrimination plaintiffs may
prevail even if they will receive very little by way of eco-
nomic compensation. Kyles, 222 F.3d at 298 (noting a
victim may still bring a Title VII suit even if her relief may
be limited). Plaintiffs may see value in a verdict against the
defendants even if they only receive nominal compensation,
and we have noted before that a civil rights plaintiff may
act as a “private attorney general vindicating a policy that
Congress considered of the highest importance.” Dunning v.
Simmons Airlines, Inc., 62 F.3d 863, 872 (7th Cir. 1995).
But at most, this suggests that the language the district
court used in the instruction was too imprecise. The court
should not have used the term “damages” as it did in the
two challenged instructions. Instructions should distinguish
between “injury” (meaning the plaintiff’s loss) and “dam-
ages” (meaning the monetary remedy). Here, unfortunately,
the single word “damages” was not used consistently. At
one point it was offered as a synonym for “injury” or
“harm,” while at another point it was presented as the “loss
of enjoyment of a normal life” and the “emotional pain,
suffering, and mental anguish experienced and reasonably
certain to be experienced in the future.” The district court

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No. 01-1598 11
also gave an instruction for “nominal damages,” providing
a third use of the term. Greater precision would have
avoided the problem we are now facing.
The instruction given on the retaliation claims suffered
from the same type of flaw. The district court instructed the
jury that the plaintiffs could prevail on their retaliation
claim only if it found that they experienced “adverse em-
ployment actions.” Court’s Instruction 14 then defined an
adverse employment action as “discriminating against any
individual with respect to his compensation, terms, condi-
tions, or privileges of employment or limiting, segregating,
or classifying employees in any way that would deprive or
tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee.”
Schobert and Werner, pointing to the distinction the Su-
preme Court and this court have drawn between issues for
a judge and issues for a jury urge this court to find that the
instruction was an incorrect statement of the law because
it instructed the jury to find the elements of a prima facie
case. See United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715 (1983); Achor v. Riverside Golf
Club, 117 F.3d 339, 341 (7th Cir. 1997) (“[E]lements that
make up a ‘prima facie case’ are for the judge, not the
jury”); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.
1995) (“Once the judge finds that the plaintiff has made the
minimum necessary demonstration (the ‘prima facie case’)
and that the defendant has produced an age-neutral ex-
planation, the burden-shifting apparatus has served its
purpose, and the only remaining question—the only ques-
tion the jury need answer—is whether the plaintiff is a
victim of intentional discrimination.”).
Acknowledging this precedent, IDOT argues the district
court should nevertheless instruct the jury that it must find
an adverse employment action before a plaintiff may
prevail on a retaliation claim. It maintains that this is so

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12 No. 01-1598
because the plaintiff bears the burden of persuasion. Yet
IDOT has not offered a reason why McDonnell Douglas
burden-shifting should apply in cases of retaliation during
trial proceedings (Schobert and Werner’s case), but not in
straightforward discrimination trials. See Achor, 117 F.3d
at 339. Retaliation is merely another form of discrimina-
tion. Knox, 93 F.3d at 1334. After the pretrial stage, plain-
tiffs needed only to demonstrate that they were discrimi-
nated against for opposing an “unlawful employment prac-
tice,” 42 U.S.C. § 2000e-3, to sustain a retaliation claim.
The jury here should have been asked only to consider
whether the plaintiffs suffered retaliation because of pro-
tected activity, rather than to decide whether the allegedly
adverse consequences amounted to an adverse employment
action. Cf. Aiken, 460 U.S. at 715.
The fact that these instructions may not have been
accurate is not, however, the end of our inquiry. If jury
instructions contain incorrect or confusing legal statements,
this court considers whether a party was prejudiced by the
instruction. United Airlines, Inc. v. United States, 111 F.3d
551, 555 (7th Cir. 1997). If the jury instructions are mis-
leading or inconsistent, we must be confident that the jury
resolved any inconsistencies. Although these instructions
were not as clear as they should have been and at times
were incorrect, Schobert and Werner have not shown that
they were prejudiced by the statements.
A. Schobert’s Sex Discrimination Claim
Schobert claims that he offered enough evidence to prove
discrimination by showing that the one woman employed at
his worksite received advantages he and the other male
employees did not. The evidence he presented does not bear
out that claim. Schobert’s argument was either that Roth
was sexually harassed and as a third-party he too suffered
from that harassment, or (more likely) that Roth had a con-

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No. 01-1598 13
sensual relationship with a supervisor, who then granted
her preferential treatment. Schobert’s first argument was
rejected by the Fifth Circuit in Ellert v. Univ. of Texas, 52
F.3d 543, 546 (5th Cir. 1995). There the court held that a
plaintiff could not maintain an action for sexual harass-
ment where she was not actually subject to any harassing
conduct even if she felt discriminated against as a result of
harassment suffered by a fellow employee. We agree with
the Fifth Circuit and find that unless Schobert offered
evidence that he too directly endured the same kind of
harassment, which he has not, he does not have a claim of
sex discrimination.
His alternate argument, which is the one we understand
him to be stressing, is more akin to the employer’s favoring
the “paramour” over the other employees. Title VII does
not, however, prevent employers from favoring employees
because of personal relationships. Whether the employer
grants employment perks to an employee because she is a
protegé, an old friend, a close relative or a love interest,
that special treatment is permissible as long as it is not
based on an impermissible classification. See DeCintio v.
Westchester County Medical Center, 807 F.2d 304, 306 (2d
Cir. 1986) (rejecting the argument that male plaintiffs are
discriminated against if a supervisor prefers his female love
interest). From a practical standpoint, there is every reason
for an employer to discourage this kind of intra-office
romance, as it is often bad for morale, but that is different
from saying it violates Title VII. Had there been other
women in the sign shop, they would have suffered in
exactly the same way Schobert was allegedly suffering,
which also shows why this is not really a sex discrimination
problem.
B. Retaliation Claims
Turning to the retaliation claims, while we agree that
Schobert and Werner were not prejudiced by the instruc-

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14 No. 01-1598
tion, our reasons differ from those IDOT has advanced.
IDOT argues that the plaintiffs were not prejudiced be-
cause they never received a change in compensation or
benefits and remained employed with IDOT. To the extent
that IDOT thinks that plaintiffs must prove an economic
loss to support a retaliation claim, it is mistaken. In fact,
we have often recognized non-economic forms of retaliation.
See, e.g., Markel v. Bd. of Regents of the Univ. of Wis. Sys.,
276 F.3d 906, 911-12 (7th Cir. 2002) (noting that employ-
ment discrimination results frequently in economic harm,
but leaving room for non-economic injury); Knox, 93 F.3d at
1334 (“There is nothing in the law of retaliation that re-
stricts the type of retaliatory act that might be visited upon
an employee who seeks to invoke her rights by filing a
complaint.”); Smart v. Ball State Univ., 89 F.3d 437, 440-42
(7th Cir. 1996) (describing the wide range of possible
adverse employment actions). The question for juries is not
whether a plaintiff demonstrated an adverse employment
action, it is whether the plaintiff can point to an adverse
event that occurred after asserting her protected rights; this
could include non-employment activities such as brick-
throwing, tire-slashing or other unfortunate acts. The only
requirement is that the adverse act must occur because of
the employee’s exercise of protected rights.
That being said, not every slight or inconvenience is
adverse enough to count as retaliation. Non-economic em-
ployment actions such as requiring a maintenance worker
to do an undesirable job, Conley v. Vill. of Bedford Park, 215
F.3d 703, 712 (7th Cir. 2000), by themselves are not
retaliatory acts forbidden by Title VII. The key question for
us is whether the limitation found in the instructions (to
employment actions) prejudiced Schobert and Werner.
Schobert and Werner spend several pages of their brief
describing the acts that they believe were retaliatory. Their
complaints ranged from receiving undesirable assignments
to being blamed for other employees’ mistakes. Although

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No. 01-1598 15
these acts did not affect the “compensation” or “terms” of
employment, the district court’s definition of adverse
employment action included the “conditions” and “privi-
leges” of employment. It then went on to state that an ad-
verse employment action covered anything that involved
“limiting, segregating, or classifying employees in any way
that would deprive any individual of employment opportu-
nities or otherwise adversely affect his status as an em-
ployee.”
Schobert and Werner have not alleged that IDOT retali-
ated against them outside of their employment. In their
version of events, no one threw a rock through Schobert’s
bedroom window or slit Werner’s tires. The “adverse” acts
alleged by Schobert and Werner related only to the condi-
tions of their employment and their access to employment
privileges. Under the instructions as given, the jury was
therefore free to consider everything they presented, be-
cause all of the alleged retaliation occurred in the employ-
ment context. The jury simply did not believe their version
of events. We are confident that it heeded all the instruc-
tions and that it did not find that Schobert’s and Werner’s
conditions or privileges of employment were affected after
they complained about sex discrimination.
III
For the foregoing reasons, the judgment of the district
court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-16-02

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