Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 1 of 10 PageID #:6815
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`MICHAEL LEONARD,
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`DOUGLAS A. COLLINS, as Secretary,
`U.S. Department of Veterans Affairs, 1
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`v.
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` No. 17 C 09259
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` Judge Rebecca R. Pallmeyer
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`MEMORANDUM OPINION AND ORDER
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`Plaintiff,
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`Defendant.
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`Plaintiff Michael Leonard was fired from his longtime job as a law enforcement officer at
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`the U.S. Department of Veterans Affairs (“VA”) in 2013. Leonard claimed he was terminated in
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`retaliation for having filed a claim of race discrimination with the Equal Employment Opportunity
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`Commission (“EEOC”) (see Summ. J. Order [92] at 17–21) and sought relief pursuant to Title VII
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`of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Id.) A jury found in favor of Leonard,
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`concluding that retaliatory animus or motive “played a part in” Leonard’s termination and that
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`Leonard would not have been terminated but for the retaliatory animus; the jury awarded Leonard
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`$100,000 in compensatory damages for emotional distress.2 (Jury Verdict at 2–3 [141].) As a
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`result of the jury’s findings, Leonard is also presumptively entitled to back pay, though he bears
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`the burden to establish the proper amount for the award. See David v. Caterpillar, Inc., 324 F.3d
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`851, 865 (7th Cir. 2003).
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`David J. Shulkin, the named Defendant when this suit was initiated, is no longer
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`Secretary, U.S. Department of Veterans Affairs. Douglas A. Collins was sworn in as Secretary,
`U.S. Department of Veterans Affairs on February 25, 2025.
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`The court instructed the jury that in calculating damages, it “should only consider
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`the mental/emotional pain and suffering that Plaintiff has experienced and is reasonably certain
`to experience in the future.” (Jury Instructions [139] at 17.) Any damages for past or future lost
`wages and benefits, the court explained, were for the court to calculate and determine. (Id.) The
`parties are currently engaged in limited discovery and briefing on the back pay issues. ([150].)
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` 2
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`Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 2 of 10 PageID #:6816
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`At the close of trial evidence, Defendant moved for judgment as a matter of law under
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`Federal Rule of Civil Procedure 50(a) on Leonard’s claim for compensatory damages. Defendant
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`argued that Leonard, whose trial testimony was cut short for medical reasons, presented the jury
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`with no competent evidence to support such an award. The court reserved ruling on the motion,
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`and Defendant has now timely renewed it. (See Mot. [142] at 2, 7.) For the reasons explained
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`below, Defendant’s motion is granted, and the jury’s award of compensatory damages is vacated.
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`BACKGROUND
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`Leonard’s trial was unusual in that the jury heard almost no live testimony from the Plaintiff.
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`On the first day of proceedings, Leonard began his direct testimony but soon experienced a
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`medical issue that forced him to step down from the witness stand. Leonard was ultimately unable
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`to offer any further testimony at trial. Counsel for both parties agreed that Leonard’s prior sworn
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`testimony—given in a July 2015 hearing conducted by the Merit Systems Protection Board
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`(“MSPB”) and in a May 2019 deposition—would be read into the record in lieu of live testimony.
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`(See generally Leonard MSPB Hr’g Tr. [145-2]; Leonard Dep. [145-1].)
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`In that earlier testimony, Leonard had not described having experienced “mental suffering,
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`humiliation, embarrassment, or pain,” and “did not present the jury with any testimony from
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`friends, family members, medical providers, or other witnesses who could attest to any emotional
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`distress or mental harm that [Leonard] might allege to have experienced.” (Mot. at 3; Pl. Resp.
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`[145] at 4.) Leonard also acknowledged in his deposition that he never sought any mental health
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`treatment in connection with his removal from the VA. (Leonard Dep. at 121:4–7.) Leonard
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`nonetheless maintains that he presented enough evidence to support the jury’s award. The court
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`summarizes below the relevant evidence highlighted by Leonard, adding in small bits of context
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`while bearing in mind that the court must construe the trial evidence “strictly in favor” of Leonard
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`in considering the Defendant’s motion. Thorne v. Member Select Ins. Co., 882 F.3d 642, 644 (7th
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`Cir. 2018) (internal citations omitted).
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`2
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`Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 3 of 10 PageID #:6817
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`Leonard worked at the VA for about 25 years before being fired. (Leonard Dep. at 31:6–
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`9 (Leonard began working at the VA in 1987), 15:24–25, 26:3–6 (Leonard’s employment with the
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`VA ended in March 2013).) During that span, Leonard testified, he was promoted several times,
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`first from a patrolman to a detective, then to a “detective instructor,” and finally to a “criminal
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`investigator,” the position he held when he was terminated. (Leonard MSPB Hr’g Tr. at 267:1–
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`6.) Leonard was proud of his career advancement, which he attributed to having “worked [his]
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`butt off, and [believing] in teamwork and the system.” (Id. at 331:13–18.) Leonard did not testify
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`concerning the salary he earned at the VA, or the full range of employee benefits he received,
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`though he appears to have received health insurance through the VA. (See Leonard Dep. at
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`13:8–13.)
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`At the MSPB hearing (where Leonard unsuccessfully appealed his termination), Leonard
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`characterized the charges of misconduct against him as “ludicrous.” (Id. at 330:9.) The
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`investigation of those charges, he noted, was led by another VA law enforcement officer, Cary
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`Kolbe, who Leonard claimed had previously threatened to kill him after a December 2011
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`confrontation between the two men. (See Leonard Dep. at 61:8–63:13, 65:2–22.) Those
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`circumstances, in Leonard’s view, made it “inappropriate” for Kolbe to be assigned to conduct the
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`investigation. (Id. at 65:23–25.) It appears that at some point between Leonard’s firing and his
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`MSPB hearing, Kolbe was appointed to the position Leonard had held as criminal investigator at
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`the Edward Hines, Jr. VA Hospital in Hines, Illinois. (MSPB Hr’g at 330:13–14.) Leonard now
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`argues that he testified about “his outrage and confusion about his termination” (Pl. Resp. at 6),
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`but he did not use that language to describe his emotional state in the MSPB testimony.
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`At his deposition, Leonard explained that at some point in 2014, he secured a position as
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`a security officer at a company called All Points Security and Detective Agency (“All Points”).
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`(See id. at 8:7–14, 9:10–16.) Before starting that job, however, Leonard had been without a full
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`time job for about a year and a half, instead performing menial jobs at the church where he served
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`as a deacon, including, in his telling, “carpentry work, demolition work with certain buildings that
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`3
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`Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 4 of 10 PageID #:6818
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`the church was involved with, [and] counseling as far as the programs that they acquired, summer
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`programs with the kids.” (Id. at 13:20–14:3.) Leonard estimated he earned no more than $3,000
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`in total for these tasks. (Id. at 15:12–19.)
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`When he started work as a security officer for All Points in late 2014, Leonard recalled, he
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`earned “[m]inimum wage . . . it had to be around $12 an hour or something like that.”3 (Id. at
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`9:10–15.) Within a year, Leonard was promoted to the position of “site supervisor,” with his hourly
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`pay increasing “slightly” to “[m]aybe $12.15.” (Id. at 8:2–6, 10:2–11.) A year later, he was again
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`promoted to the rank of “field supervisor,” a salaried position paying “around 25, $26,000 a year.”
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`(Id. at 10:15–18, 11:2–10.) By the time of his deposition in May 2019, Leonard was earning about
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`$35,000 per year at All Points. (Id. at 11:13–16.) Because All Points offered no employee
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`benefits, Leonard was insured through his wife’s health insurance plan.4 (Id. at 10:13–14, 13:4–
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`13.)
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`DISCUSSION
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`Compensatory damages for emotional distress must be “supported by competent
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`evidence.” Ramsey v. Am. Air Filter Co., 772 F.2d 1303, 1313 (7th Cir. 1985) (citing Carey v.
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`Piphus, 435 U.S. 247, 264 n.20 (1978)). As the Supreme Court explained in Carey v. Piphus,
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`emotional distress is “customarily proved by showing the nature and circumstances of the wrong
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`and its effect on the plaintiff.” 435 U.S. at 263–64 (emphasis added). “Neither the likelihood of
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`The minimum wage in Chicago and throughout Illinois at that time was, in fact, only
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`$8.25 per hour, though the jury did not hear evidence to that effect. Bill Chappel, Chicago Council
`Strongly Approves $13 Minimum Wage, NPR
`(Dec. 2, 2014, 2:02 PM ET)
`https://www.npr.org/sections/thetwo-way/2014/12/02/368026116/chicago-council-strongly-
`approves-13-minimum-wage (last visited April 7, 2025).
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`Leonard testified at his deposition that his wife, a nurse, was the “director of labor
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`and delivery” at Adventist Hospital in Bolingbrook, Illinois, though it was not clear from his
`testimony whether she already held the director position at the time Leonard was dismissed by
`the VA. (Leonard Dep. 13:1–19.) Leonard and his wife have four children; at the time of Leonard’s
`deposition in May 2019, they were aged 40, 36, 26, and 22, and only the youngest still lived with
`Leonard and his wife. (Id. at 4:18–5:1.)
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`4
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`Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 5 of 10 PageID #:6819
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`such an injury” having occurred nor “the difficulty of proving it,” the Court held, “is so great as to
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`justify awarding compensatory damages without proof that such injury actually was caused.” Id.
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`at 264. Accordingly, the Seventh Circuit announced in Biggs v. Vill. of Dupo that it requires
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`plaintiffs to “show ‘demonstrable emotional distress,’” not just point to circumstances of the
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`violation which “might support an inference of such injury.” 892 F.2d 1289, 1305 (7th Cir. 1990)
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`(quoting Rakovich v. Wade, 819 F.2d 1393, 1399 (7th Cir. 1987)); accord Alston v. King,
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`231 F.3d 383, 388 (7th Cir. 2000).
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`Further, “when the injured party provides the sole evidence of mental distress, he must
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`reasonably and sufficiently explain the circumstances of his injury and not resort to mere
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`conclusory statements.” Biggs, 892 F.2d at 1304 (quoting Rakovich, 819 F.2d at 1399 n.6). In
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`Nekolny v. Painter, the plaintiffs were three employees of Lyons Township, Illinois, who were
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`found by a jury to have been fired in retaliation for campaigning against the township supervisor
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`in the previous election, a violation of their First Amendment rights. 653 F.2d 1164, 1165 (7th Cir.
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`1981). The only evidence the three plaintiffs presented of emotional distress, however, was their
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`own testimony that they were “very depressed,” “a little despondent and lacking motivation,” and
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`“completely humiliated” by their dismissals. Id. at 1172. The jury entered modest awards ($5,000,
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`$2,500, and $2,500) for the plaintiffs’ mental and emotional distress. Id. at 1166. But the Seventh
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`Circuit reversed those awards, concluding that the evidence was “insufficient to constitute proof
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`of compensable mental or emotional injury,” as plaintiffs’ bare statements were inadequate even
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`when considered along with the facts of the case. Id. at 1172–73. Similarly, in Biggs, the
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`plaintiff—who had been a part-time police officer with the Village of Dupo, Illinois for 14 years—
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`was fired by Village officials in retaliation for speech protected by the First Amendment: criticizing
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`local politicians in an interview Biggs gave to a newspaper reporter. 892 F.2d at 1299–1300. The
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`only direct evidence of emotional distress Biggs provided was his testimony that he was “affected
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`emotionally by being fired,” and that he was concerned by “the idea of [his] family going through
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`it.” Id. at 1304. That evidence, the Seventh Circuit held, was insufficient as a matter of law to
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`5
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`Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 6 of 10 PageID #:6820
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`support an award of damages for emotional distress, finding Biggs’s testimony to be “as
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`conclusory as that held insufficient in Nekolny.”5 Id. at 1305.
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`Leonard correctly notes that he was not required to use particular “magic words” to
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`describe his emotional distress in order to recover. (Pl. Resp. at 4). But Leonard’s testimony did
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`not describe his emotional distress in any terms, and he otherwise offered no testimony from a
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`physician or mental health professional, or even family or friends, to that effect. In other words,
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`the jury heard no direct evidence of the effect that the VA’s unfair treatment of Leonard had on
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`his emotional state.
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`Leonard has not presented any cases in which a plaintiff has been able to recover
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`damages for emotional distress without offering direct evidence of that distress. Leonard
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`nevertheless contends that his testimony regarding the circumstances of his termination and its
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`aftermath support such an award, namely, that (1) Leonard was fired from a long-time job as a
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`law enforcement officer at the VA that he took pride in and where he had earned several
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`promotions through hard work; (2) Leonard was dismissed based on misconduct charges he
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`believes were “ludicrous”; (3) the charges against Leonard were investigated a colleague who
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`allegedly had once threatened to kill Leonard and appears to have won Leonard’s job after his
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`termination; (4) Leonard did not secure full-time work for about a year and a half, during which he
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`earned only a small amount of money performing odd jobs at the church where he served as a
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`deacon; and (5) when Leonard did find full-time work as a security guard, his wages started at
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`As Leonard points out, the Seventh Circuit in Biggs did not vacate the damages
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`award below but rather held that the defendants were entitled to a new trial on damages unless
`the court could determine an appropriate remittitur and Biggs accepted. (Pl. Resp. at 6 (citing
`Biggs, 892 F.2d at 1305).) But the reason a new trial or remittitur was necessary in Biggs was
`that, as Leonard himself acknowledges, the jury in Biggs had been instructed to consider both the
`plaintiff’s emotional distress and “the value of salaries lost and the present cash value of the
`salaries reasonably certain to be lost in the future” in determining compensatory damages.
`892 F.2d at 1304; (see also Pl. Resp. at 6.) The new trial in Biggs would have been for the jury
`to compute damages due to lost wages. Here, the jury was instructed not to consider lost wages
`or benefits in calculating its award of compensatory damages.
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`6
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`Case: 1:17-cv-09259 Document #: 152 Filed: 04/10/25 Page 7 of 10 PageID #:6821
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`around $12 per hour and the position did not offer benefits, forcing Leonard on to his wife’s health
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`insurance plan.
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`As Leonard points out, in United States v. Balistrieri, the Seventh Circuit stated that courts
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`“must look at both the direct evidence of emotional distress and the circumstances of the act that
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`allegedly caused that distress.” 981 F.2d 916, 932 (7th Cir. 1992). The Balistrieri court further
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`mused that humiliation could be “inherent in the circumstances” of a case, and that “[t]he more
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`inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that
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`a person would suffer humiliation or distress from that action.” Id. at 933–34. Leonard also directs
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`the court’s attention to Seaton v. Sky Realty Co., Inc., where the court wrote that “[h]umiliation
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`can be inferred from the circumstances as well as established by the testimony.” 491 F.2d 634,
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`636 (7th Cir. 1974).
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`Although the passages quoted above appear favorable to Leonard’s cause when read in
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`isolation, Balistrieri and Seaton do not support his position, particularly when read against the
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`backdrop of other Seventh Circuit cases on the topic. In Balistrieri, the court indeed upheld a
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`jury’s award of damages for emotional distress to the plaintiffs, fair housing “testers” who
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`encountered racial discrimination while posing as customers—but these plaintiffs had testified to
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`feeling “angry and upset,” “cautious and on edge,” “nauseous, embarrassed, and ashamed,” “hurt
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`and disappointed,” having “a sense of helplessness and fear,” and experiencing “a disbelief and
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`kind of a hurt feeling” as a result of the treatment they endured. 981 F.2d at 931. And while the
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`Balistrieri court noted that the Seventh Circuit had occasionally upheld emotional distress
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`damages awards “despite the lack of detailed description of that distress,” it noted that the
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`plaintiffs in all those cases, including Seaton, had been denied housing because of their race. Id.
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`at 932. And critically, the plaintiffs in all of these cases had also offered at least some testimony
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`describing their emotional distress. See Douglas v. Metro Rental Servs., Inc., 827 F.2d 252, 256–
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`57 (7th Cir. 1987) (plaintiff testified that she had “looked differently” at her coworkers and the
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`general public after the incident and became “self-conscious,” while the rejection “caused
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`changes” in the “attitudes and aspirations” of two minor plaintiffs “because of their increased self-
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`consciousness about their racial status”); Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir. 1977)
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`(plaintiff testified he was “humiliated and embarrassed” by the defendant’s conduct); Seaton,
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`491 F.2d at 636–638 (plaintiff testified he was “humiliated” and “intimidated, not only as a person
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`but as a man,” and that the offending realtor had stripped him of his “right as a father” to his
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`children, who were present and witnessed the discrimination).
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`In this court’s view, Balistrieri and Seaton do not establish that plaintiffs may sometimes
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`recover emotional distress damages based only on testimony from which a jury might infer
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`emotional distress. An award supported solely by a perceived likelihood that the plaintiff suffered
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`emotional distress, or solely by the jury’s inference that the plaintiff suffered emotional distress,
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`is what the Supreme Court’s decision in Carey and the Seventh Circuit’s decision in Biggs seem
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`to prohibit.6 See 435 U.S. at 264; 892 F.2d at 1305. Rather, this court reads Balistrieri and
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`Seaton as standing for the proposition that when the defendant engages in conduct as inherently
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`degrading to the victim as race discrimination, “somewhat more conclusory evidence of emotional
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`distress”—for instance, the plaintiff’s own, limited testimony as to how the violation made them
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`feel—“will be acceptable to support an award for emotional distress.” Balistrieri, 981 F.2d at 932;
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`compare with Alston, 231 F.3d at 388–389 (denial of a hearing before plaintiff was terminated
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`from his job was not the type of inherently degrading conduct that would portend emotional
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`distress). As the Balistrieri court discussed, this factor distinguished Nekolny, a First Amendment
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`retaliatory firing case, from Seaton. Though the plaintiffs’ limited testimony as to their distress in
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`each case was “not qualitatively much different,” the circumstances in Nekolny did “not approach
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`Leonard argues that Biggs is distinguishable from his case “on several grounds,”
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`including that Biggs was a “First Amendment” case, that the plaintiff was only a part-time police
`officer, and that the plaintiff’s testimony did not feature a character analogous to Kolbe in this
`case. (Pl. Resp. at 6.) But Biggs was a case where, like Leonard, the plaintiff was fired in
`retaliation for engaging in protected activity. Moreover, Leonard has not explained why he
`believes that the holding of Biggs— that plaintiffs must do more than point to circumstances that
`might support an inference of emotional distress in order to recover such damages—is cabined
`to the specific facts of that case.
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`the egregiousness of those found in Seaton,” Balistrieri, 981 F.3d at 932, where the plaintiff had
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`been “subjected to a racial indignity,” one of the “relics of slavery.” Seaton, 491 F.2d at 636 (citing
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`Jones v. Mayer Co., 392 U.S. 409, 441–42 (1968)).
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`Leonard is a Black man, and he had initially alleged in this case, as in his prior EEOC
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`complaint, that he had been subjected to race discrimination at the VA—however, at summary
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`judgment, this court concluded that Leonard had presented “no admissible evidence that race
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`discrimination played a role in his removal.” (Summ. J. Order at 24.) Consequently, the parties
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`stipulated to exclusion at trial of any evidence or argument regarding Leonard’s allegations of
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`race discrimination. ([118] at 1–2; [126] at 2.) The court need not decide whether a retaliatory
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`firing, in and of itself, is as inherently degrading as racial discrimination. The court holds only that
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`the law does not support an emotional distress award where the fired employee offers no more
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`than limited testimony describing his emotional state—and here, Leonard’s testimony did not
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`describe his distress even in that limited sense.
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`Leonard also contends that the Seventh Circuit’s decision in Tullis v. Townley Eng’g &
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`Mfg. Co., Inc., 243 F.3d 1058 (7th Cir. 2001) militates in his favor. Though there are a few
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`similarities between the cases, the comparison is inapt for a simple reason: the plaintiff in Tullis
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`testified as to his emotional distress, and Leonard did not. In Tullis, a jury found the defendant
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`company liable for firing the plaintiff in retaliation for his exercising his rights under the Illinois
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`Workers’ Compensation Act and awarded the plaintiff just over $80,000 in damages for emotional
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`distress. Id. at 1062. Tullis failed to present testimony from a physician or other professional or
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`even a family member speaking to his emotional distress. Id. at 1066–67. He did, however, offer
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`testimony of his own. The defendant’s conduct, he said, had made him feel “totally degraded”
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`and “back-stabbed.” Id. Tullis testified that after his retaliatory discharge, he was without full-
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`time work for nine or ten months and found only “odd and end jobs,” earning him approximately
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`$600 to $700 during that span. Id. at 1068. During this span, Tullis was forced to borrow money
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`from friends and relatives to get by, and even then, fell behind on child support and had trouble
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`keeping his utility bills paid, which resulted in his phone, lights, and gas being shut off at times.
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`Id. Tullis also described being unable to buy new school clothes for his children or take them to
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`Wal-Mart or McDonald’s for shopping and dining. Id. at 1067.
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`In his briefing, Leonard implies that the jury heard testimony regarding his financial
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`struggles in the wake of dismissal from the VA. (See Pl. Resp. at 6 (arguing that he, unlike the
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`plaintiff in Biggs, offered testimony about “financial struggles after his termination”), 7 (offering
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`that “having to perform minimum wage employment . . . would be devastating financially.”)) Like
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`the plaintiff in Tullis, Leonard was without full time work for a stretch and performed odd jobs for
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`a small amount of money—but Leonard has not identified any specific testimony concerning
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`financial struggles either in the period immediately following his dismissal from the VA or later
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`after he started as a security guard at All Points. Indeed, Leonard’s testimony did not touch on
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`the difference between his salary at the VA and All Points at all. More importantly, the critical fact
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`remains that Leonard’s prior testimony did not describe the effects of his dismissal or its aftermath
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`on his emotional state, whether due to financial difficulties or otherwise.
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`CONCLUSION
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`For the reasons stated above, Defendant’s motion [142] is granted, and the jury’s award
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`of compensatory damages to Plaintiff is vacated. As the court has recognized, Leonard is
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`presumptively entitled to an award for lost pay and benefits. Given the length of time between
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`Leonard’s dismissal from the VA and the jury’s verdict, the award could potentially be substantial.
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`The parties are encouraged to discuss the possibility of settlement.
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`Dated: April 10, 2025
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`ENTER:
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`_________________________________________
`REBECCA R. PALLMEYER
`United States District Judge
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`10
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