00-2696 Shick v. Illinois Department of Human Services

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“[T]he most compelling evidence of Yargus’s abuse was not in fact due to Shick’s sex, but because of his disabilities. This case differs procedurally in that these evidentiary issues were not raised through a Rule 403 motion at trial because at the time, the prejudicial evidence was directly relevant to the then valid claim under the ADA. However, once Shick’s ADA claim was dismissed the Department raised the issue of the effects of this prejudicial, and now largely irrelevant, evidence through its motion for a new trial. While unusual procedurally, this case is also unusual because the plaintiff claimed and the jury apparently believed that Shick was driven to commit an armed robbery because of the abusive treatment by his supervisor, Susan Yargus. In effect, he was relying on a theory similar to one made popular by comedian Flip Wilson: ‘The devil made me do it.’ After hearing all of the evidence, the jury initially awarded Shick five million dollars-this after he had been convicted and had begun serving a 10-year prison sentence. This steep verdict demonstrates the extraordinary impact of the disability discrimination evidence because, while it is clear that Shick and Yargus had an acrimonious relationship (to say the least), the hostilities were primarily caused by Yargus’s callous attitude about Shick’s several disabilities-not his gender.

“Before Yargus arrived, he was performing his job satisfactorily and he liked the work that he was doing. However, on September 8, 1994, a little over a month after Yargus arrived, Shick sent her a three-pluspage memo that was confrontational and critical. Many other memos followed back and forth, some complaining about Yargus’s favorable treatment of the women over him on things such as break time, eating at the desk, taking medications at the desk, and use of the telephone for business and personal calls. But the record, including the testimony and the exhibits, clearly demonstrates that the occasions of sex discrimination are minuscule compared to the many conflicts involving his medical problems and disabilities. Dr. Rossiter described the severe depression and ultimate rage as resulting from Shick’s conflict with Yargus, and explained that he believed that this drove Shick to commit the armed robbery. It is hard to imagine how a jury would have accepted this extraordinary theory for which it initially awarded Shick five million dollars, without the extensive testimony about the abusive treatment regarding his many ailments. Rather, the jury had to be very sympathetic to Schick’s many maladies and his efforts and needs to cope with them. At the same time, the jury had to be extremely irritated with what it perceived to be Yargus’s insensitivity and even harsh attitude about these many medical challenges. This reaction has everything to do with disability discrimination and very little to do with sex discrimination.”

Vacated and remanded.

Appeal from the United States District Court for the Southern District of Illinois, Murphy, J., Manion, J.