00-1825 Hertzberg v. SRAM Corp.

Listen to this article

“The requirement that a plaintiff establish a discriminatory discharge in order to receive lost pay precludes such a recovery for Ms. Hertzberg in the present case. We agree with the district court that Ms. Hertzberg’s lawyers, ‘in the nature of their presentation, may have shot themselves or their client in the foot on the retaliation claim by the instruction that limited adverse employment action to a termination of plaintiff’s employment by defendant,’; that is, Ms. Hertzberg may well have convinced a jury that she had been constructively discharged. However, Ms. Hertzberg presented only two bases of relief to the jury: sexual harassment and retaliatory discharge. The jury rejected Ms. Hertzberg’s retaliatory discharge claim. Consequently, there was no discriminatory discharge on which the award of lost pay could be based, and we must reverse the lost pay award.

“Given the constant nature of the harassment and SRAM’s lack of managerial response to the problem, we believe a jury was entitled to conclude that SRAM did not make good faith efforts to implement its sexual harassment policy. Consequently, because a reasonable jury could have found that Ms. Hertzberg met her burden with respect to punitive damages, we shall not disturb its verdict.”

Affirmed in part, and Reversed in part.

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Ripple, J.