No. 12-1017 ______________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ______________________________________ Equal Employment Opportunity Commission, Plaintiff-Appellee, v. AutoZone, Inc., Defendant-Appellant. ____________________________________________________ Appeal from the United States District Court for the Central District of Illinois, Peoria Division Case No. 1:07-cv-1154 The Honorable John A. Gorman, Magistrate Judge ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLEE P. DAVID LOPEZ ERIC A. HARRINGTON General Counsel Attorney LORRAINE C. DAVIS EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, NE Assistant General Counsel Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT Oral argument is not requested. AutoZone raises six issues. “Except in unusually complicated cases, a brief that treats more than three or more matters runs a serious risk of . . . giving the impression that no one claimed error can be very serious.” Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit 104 (2012). With each raised issue, the standard of review and applicable law are well- established. The record is complete and shows that the district court’s well-reasoned orders properly rejected all the defendant’s challenges. Oral argument therefore will not significantly aid the decisional process. See Fed. R. App. P. 34(2)(c). TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. Litigation History . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 I. AutoZone’s Claim that the Second-Jury Verdict Is Precluded by the First-Jury Verdict Was Waived, Is Barred by Laches, and Is Meritless. . . . . . . . . .21 A. AutoZone forfeited the issue-preclusion defense because it failed to raise it in a timely manner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. Whether Shepherd was qualified to perform the essential functions of the PSM job from March to September 2003 was not decided by the first jury, not actually litigated, and not essential to the first-jury verdict. . . . . . . . . . . 23 II. The District Court Did Not Abuse Its Discretion in Allowing Dr. Katchen to Testify Without Producing a Report and Even if a Report Were Required, Failure to Provide the Report Was Substantially Justified and Harmless. . . . . . .27 A. No report was required because Dr. Katchen was Shepherd’s treating physician and testified only about observations and conclusions he made during Shepherd’s treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 B. The failure to produce a report was substantially justified because AutoZone told EEOC counsel that no report was necessary and waited 886 days before repudiating that position. . . . . . . . . . . . . . . . . . . . . . . . . 31 C. The failure to produce a report was harmless because AutoZone had ample opportunity to prepare a response without it. . . . . . . . . . . . . . . . 32 D. Even if the district court erred in allowing Dr. Katchen’s testimony that error would not warrant reversal because there is not a significant chance that his testimony affected the outcome of the trial. . . . . . . . . . . . . . . . .32 III. The District Court Did Not Abuse Its Discretion in Declining to Remit the Jury’s Award of $100,000 in Compensatory Damages Because the Award Is Not Monstrously Excessive, Is Rationally Connected to the Evidence, and Is Comparable to Awards Made in Similar Cases. . . . . . . . . . . . . . . . . 33 A. Compensating Shepherd $100,000 for ten months of daily pain, two serious physical injuries, insomnia, and depression caused by AutoZone’s refusal to accommodate him is neither monstrously excessive nor disconnected from the evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 B. The $100,000 award is comparable to awards in similar cases. . . . . . . . .34 IV. The Punitive Damages Award of $200,000 Is Supported by the Record and Does Not Violate the Due Process Clause. . . . . . . . . . . . . . . . . . . . . 38 A. There are sufficient facts to support the jury’s conclusion that AutoZone engaged in intentional discrimination with malice or reckless indifference to Shepherd’s federal rights and that AutoZone did not engage in good-faith efforts to establish and enforce an antidiscrimination policy. . . . . . . . . . . .38 B. The $200,000 punitive damages award does not violate the due process clause because AutoZone’s misconduct is reprehensible, the punitive damage award is roughly equal to the total damages, and the award is similar to awards in comparable cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 V. The District Court Did Not Abuse Its Discretion in Imposing a Modest Injunction Because AutoZone Has Failed to Demonstrate that the Discrimination Is Unlikely to Recur. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 VI. The District Court Did Not Abuse Its Discretion in Vacating the Award of Costs to AutoZone Because AutoZone Is Not the Prevailing Party. . . . . . . . . . . .50 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . 48 Avita v. Metropolitan Club of Chicago, 49 F.3d 1219 (7th Cir. 1995) . . . . 35, 36, 37 Banister v. Burton, 636 F.3d 828 (7th Cir. 2011) . . . . . . . . . . . . . .28, 29, 32 Banks v. Hit or Miss, Inc., 946 F. Supp. 569 (N.D. Ill. 1996) . . . . . . . . . . . 25 BMW of North America Inc. v. Gore, 517 U.S. 559 (1996) . . . . . . . . . . . . 44, 45 Bruso v. United Airlines, 239 F.3d 848 (7th Cir. 2001) . . . . . . . . . . . . .passim Cadena v. Pacesetter Corp., 224 F.3d 1203 (10th Cir. 2000) . . . . . . . . . . . . 42 Carnegie v. Household International, Inc., 376 F.3d 656 (7th Cir. 2004) . . . . . . 21 Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) . . . . . . . . . 25 Cooke v. Stefani Management Services, Inc., 250 F.3d 564 (7th Cir. 2001) . . . . . .41 Davis v. West Community Hospital, 786 F.2d 677 (5th Cir. 1986) . . . . . . . . . . 23 Deloughery v. City of Chicago, 422 F.3d 611 (7th Cir. 2005) . . . . . . . . . . 35, 36 Dexia Credit Local v. Rogan, 629 F.3d 612 (7th Cir. 2010) . . . . . . . . . . . . 21 EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995) . . . . . . 47 EEOC v. AutoZone (“AutoZone I”), 630 F.3d 635 (7th Cir. 2010) . . . . . . . . . passim EEOC v. Harris Chernin, Inc., 10 F.3d 1286 (7th Cir. 1993) . . . . . . . . . . . . 48 EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) . . . . . . . . . . . 48 EEOC v. United Parcel Service, 94 F.3d 314 (7th Cir. 1996) . . . . . . . . . . . . 48 EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999) . . . . . . . . . 39, 45 Explosives Corporation of America v. Garlam Enterprises, 817 F.2d 894 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . .23 Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 35, 36 Franzen v. Ellis Corp., 543 F.3d 420 (7th Cir. 2009) . . . . . . . . . . . . . . . 21 Gile v. United Airlines, 213 F.3d 365 (7th Cir. 2000) . . . . . . . . . . . . . . . 47 Harvey v. Office of Banks & Real Estate, 377 F.3d 698 (7th Cir. 2004) . . . . . . . 35 Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . . . . 50 Hertzberg v. Sram Corp., 261 F.3d 651 (7th Cir. 2001) . . . . . . . . . . . . 39, 42 King v. Burlington N. & Santa Fe Ry. Co., 538 F.3d 814 (7th Cir. 2008) . . . . .24, 27 Kolstad v. American Dental Association, 527 U.S. 526 (1999) . . . . . . . . . 39, 40 Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . 44 Lampley v. Onyx Acceptance Corp., 340 F.3d 478 (7th Cir. 2003) . . . . . . . . .passim Lowe v. Conlee, 742 F.2d 1140 (8th Cir. 1984) . . . . . . . . . . . . . . . . . . 23 Lowrey v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000) . . . . . . . . . 39 Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) . . . . . . . . . . . . 44, 45, 46 Matrix IV, Inc. v. American National Bank & Trust Co. of Chicago, 649 F.3d 539 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . .24 Merriweather v. Family Dollar Stores of Indiana, 103 F.3d 576 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . .35, 36, 37 Meyers v. National Railroad Passenger Corp., 619 F.3d 729 (7th Cir. 2010) . . . . . 29 Miksis v. Howard, 106 F.3d 754 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . .27 Mobley v. Allstate Insurance Co., 531 F.3d 539 (7th Cir. 2008) . . . . . . . . . . .25 Mozingo v. Correct Manufacturing Corp., 752 F.2d 168 (5th Cir. 1985) . . . . . .22, 23 Musser v. Gentivia Health Services, 356 F.3d 751 (7th Cir. 2004) . . . . . . . .27, 28 Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006) . . . . . . . . . . . . 35 National Organization for Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001), rev’d on other grounds, 537 U.S. 393 (2003). .21 Ogden v. Wax Works, Inc., 314 F.3d 999,1010 (8th Cir. 2000) . . . . . . . . . . . . 39 Old Republic Insurance Co. v. Employers Reinsurance Corp., 144 F.3d 1077 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . 32 Pickett v. Sheridan Health Ctr., 610 F.3d 434 (7th Cir. 2010) . . . . . . . . . . . 46 Republic Tobacco Co. v. N. Atlantic Trading Co., Inc., 481 F.3d 442 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . .50 Romano v. U-Haul Int’l, 233 F.3d 655 (1st Cir. 2000) . . . . . . . . . . . . . .passim Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . 27 Shott v. Rush-Presbyterian-St. Luke’s Medical Center , 338 F.3d 736 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . .47 Sierra Club v. Franklin County Power of Ill., LLC, 546 F.3d 918 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . .47 State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Taylor v. Sturgell, 553 U.S. 880 (2008) . . . . . . . . . . . . . . . . . . 21, 22, 24 Thompson v. Memorial Hospital of Carbondale, 625 F.3d 394 (7th Cir. 2010) . . . . . . . . . . . . . . . . . .33, 34, 35, 36 United States v. Sherman, 912 F.2d 907 (7th Cir. 1990) . . . . . . . . . . . . . . .21 Wishkin v. Potter, 476 F.3d 180 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . 25 STATUTES Americans with Disabilities Act, 29 U.S.C. § 12101 et seq. . . . . . . . . . . .passim 42 U.S.C. § 1981a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 42 U.S.C. § 1981a(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 42 U.S.C. § 1981a(b)(3)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 42 U.S.C. § 2000e-5(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 RULES & REGULATIONS Fed. R. App. P. 34(2)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i Fed. R. Civ. P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Fed. R. Civ. P. 37(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31 Fed. R. Civ. P. 54(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 OTHER AUTHORITIES Black’s Law Dictionary (7th ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . 23 Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Wright & Miller, Federal Practice & Procedure (April 2012) . . . . . . . . . . .21, 24 STATEMENT OF JURISDICTION AutoZone’s Jurisdictional Statement is complete and correct. STATEMENT OF THE ISSUES 1. Issue preclusion. (A) Issue preclusion is an affirmative defense that is forfeited if not raised in a timely manner. AutoZone failed to raise the defense until the close of the EEOC’s case-in-chief at trial, 580 days after the operative facts became known. Did AutoZone forfeit the defense? (B) Issue preclusion bars relitigation of the same issue when that issue was actually litigated and essential to a final judgment. One jury concluded that Shepherd was not qualified for his job from January 2004 on. Shepherd was injured in a workplace accident in September 2003 and has not worked since. A later jury concluded that Shepherd was qualified from March to September 2003, a period when he was working. Did the first jury’s verdict preclude the second’s? 2. Expert testimony of a treating physician. Civil Rule 26 requires that witnesses who give expert testimony must be disclosed to the opposing party but only those “retained or specially employed to provide expert testimony” must also submit an expert report. Treating physicians who testify about opinions formed during the course of treatment and not at the offering party’s request, like Dr. Katchen did here, are not “retained or specially employed to provide expert testimony,” and thus need not produce a report. Did the district court abuse its discretion in letting Dr. Katchen testify? 3. Compensatory damages. A district court should not remit a jury’s award unless the award is monstrously excessive, not rationally connected to the evidence, and not comparable to awards made in similar cases. The jury awarded $100,000 based on evidence that AutoZone’s refusal to accommodate Shepherd caused tremendous pain and suffering, depression, insomnia, and two serious injuries, and forced him to rely on others to perform basic personal care tasks. Did the district court abuse its discretion in declining to remit the award? 4. Punitive Damages. Punitive damages are available in an employment discrimination case where the discrimination was committed by managerial agents acting within the scope of their employment in the face of a perceived risk that their actions violated federal law. AutoZone officials refused a modest accommodation—even after Shepherd contacted several senior AutoZone officials—knowing that Shepherd was disabled, needed the accommodation, and was entitled to it under federal law, and then lied to cover up the discrimination. Should the district court have granted judgment as a matter of law to AutoZone on punitive damages? 5. Injunction. Once the EEOC proves discrimination, an injunction is warranted unless the employer proves that a violation is not likely to recur. AutoZone claims that it is not likely to recur because it was perpetrated by a “rogue” manager who is no longer with the company even though the evidence shows that Shepherd’s disability and request for accommodation were known by senior AutoZone officials who took no action. Did the district court abuse its discretion in granting an injunction? 6. Costs. Only the prevailing party is entitled to costs. After the EEOC became the prevailing party by obtaining a favorable judgment and $715,000 damage award, the district court vacated its previous award of costs to AutoZone. Did the district court abuse its discretion in vacating the earlier award? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court in favor of the EEOC on an Americans with Disabilities Act, 29 U.S.C. § 12101 et seq., claim alleging that AutoZone refused to accommodate one of its employees by excusing him from mopping. The forced mopping caused substantial injuries and pain and suffering for the employee. This claim is on its second appeal to this Court. The district court initially granted summary judgment on the ground that there was insufficient evidence to support a finding that the employee was disabled under the ADA, R.91, but this Court reversed and remanded the claim, see EEOC v. AutoZone (“AutoZone I”), 630 F.3d 635, 644– 45 (7th Cir. 2010). On June 3, 2011, a jury returned a verdict in favor of the EEOC, awarding $100,000 in compensatory damages and $500,000 in punitive damages. R.222, at 2.<1> The compensatory award covered damages sustained from March to December 2003. R.196. The district court also awarded $115,000 in backpay. R.226, at 14–15. The EEOC later stipulated to a reduction of the punitive damages award to $200,000, to bring the total compensatory and punitive damages award under the statutory cap. R.267, at 1. The district court also enjoined AutoZone from engaging in further ADA discrimination, A25, and vacated costs previously awarded to AutoZone before the EEOC became the prevailing party, A31. STATEMENT OF FACTS I. Factual Background AutoZone sells automotive parts in retail stores throughout the country. EEOC Ex. 38, at E3208.<2> From 1998 to 2004, John Shepherd worked in two of its stores— one in Fort Madison and the other in Macomb, Illinois—most of that time as a parts sales manager, or PSM, in Macomb. R.227, at 1; Tr. 129, 130.<3> Shepherd suffers from a chronic back impairment caused by an injury he sustained in 1996 while working for a different employer. R.227, at 2; Tr. 123–24, 300–01; EEOC Ex. 9. He has impairments to the trapezius and rhomboid muscles of the upper-left side of his back, a degenerative-disc disease of the cervical vertebrae, and a herniated disc of the cervical vertebrae, all of which limit his ability to twist or rotate his torso. R.227, at 2; Tr. 172, 300–01. Although he can rotate his torso, repetitive twisting reaggravates his condition and results in what he and his doctor describe as “flare-ups,” which bring on severe pain in his neck and back. R.227, at 2; Tr. 173, 241. By all accounts, Shepherd was quite good at his job, garnering several accolades.<4> Even in 2003, he averaged the highest sales-per-customer of anyone in his store. EEOC Ex. 33. Shepherd “was a good salesman. He could sell ice cubes to an Eskimo when it comes to salesmanship. He would always [do] . . . what it takes to do the job right.” Tr. 334–35. Customers would come to the store and specifically request him. Id. As a result, “[h]is [sales] statistics would stand at or above” the other employees in the store. Id. at 336. In 2003, he was even training new employees at AutoZone’s request. Id. at 191. Shepherd’s condition posed little problem because the job consisted primarily of sales and customer service. R.227, at 1; Tr. 431. His job entailed greeting the customer, assisting in the purchase of auto parts, and sometimes making minor repairs to the customer’s car, such as changing windshield wipers or installing a battery. Tr. 131–33. A PSM also was responsible for certain management tasks, including handling customer complaints, closing the cash registers, and processing merchandise returns. Id. at 129, 132. But one task that a PSM occasionally performed—mopping the floors of the store—aggravated Shepherd’s back condition. Shortly after he started working at AutoZone, Shepherd began to have flare-ups. Tr. 136. He and his doctor concluded that the continuous, repetitive twisting of the torso required by mopping caused his condition to flare. Id. at 136–38, 144, 240, 241, 305–06. During a flare-up, his back and neck swelled, blood rushed to his face and head, sweat drenched him, and severe headaches developed. Tr. 144. The flare-ups could last a couple days or longer. Id. at 144–45. He could “get the sensation of pain even with the smallest movement.” Id. at 241. He would treat himself with hot baths, ice, and a TENS (Transcutaneous Electrical Nerve Stimulation) unit, which sends electrical current through the skin to control pain. Id. at 145, 304. After pinpointing the cause of the flare-ups (sometime around 1999), Shepherd requested that he be allowed to refrain from mopping. Tr. 138. His then-store manager, Larry Gray, agreed to accommodate Shepherd, telling him that he could perform other tasks instead. Id. at 138–39. Mopping, as another manager testified, was not a “significant factor[] in the performance of a parts sales manager.” Id. at 337. Yet when Steve Smith, the district manager,<5> learned of this accommodation, he told Gray that he disapproved and ordered it stopped. Tr. 140. Smith specifically ordered Gray to make sure that Shepherd would “do the tasks as scheduled like everybody else.” Id. Gray nevertheless assured Shepherd they would “work around” Smith’s order. Id. But on a later visit to the store, Smith intervened after he found another worker mopping when the computer-generated schedule assigned mopping to Shepherd. Tr. 141, 216; see also R.227, at 1. He told Gray and Shepherd that whenever Shepherd was scheduled to mop, he was to mop. Tr. 141. Gray did as Smith ordered and ceased Shepherd’s accommodation. Id. This pattern repeated when Shepherd moved (in 2000 or 2001) to the Macomb store. Tr. 388. Terry Wilmot, that store’s manager, asked Shepherd to join his store because “he could really use someone like [Shepherd], and he really enjoyed every time that [they] worked together.” Id. at 142. Wilmot knew of Shepherd’s back impairment and offered to accommodate it, telling Shepherd that rather than mopping, he would “put[] [Shepherd] on the counter to get [the store’s] sales up.” Id. at 142–43. Wilmot testified that it “wasn’t tough to take him off mopping” because “management-wise, John ha[d] more pressing issues [than mopping] like the finances and that type of thing.” Id. at 410. But Smith, the district manager over the Fort Madison store, soon became the district manager over the Macomb store. Id. at 162. As before, Smith pressured the store manager to end the accommodation. Tr. 162. He directed Wilmot not to accommodate Shepherd. Id. at 413, 415. Smith told Shepherd that he was to mop and if he did not he “would be disciplined, including up to termination.” Id. at 162. Wilmot nonetheless tried to accommodate Shepherd: when Smith visited the store, Shepherd mopped, but when Smith was not visiting, he did not. Id. at 167. Even that limited accommodation, however, came to an end. In July 2002, Smith demoted Wilmot and installed Steve Thompson as store manager. R.227, at 1; Tr. 388–89. Thompson did as Smith directed. He scheduled Shepherd for mopping even though Shepherd repeatedly informed him, and others at AutoZone, that the mopping would cause flare-ups, Tr. 161, and even though mopping was a task that a PSM like Shepherd normally would have the authority to delegate, R.227, at 2. When Thompson was initially installed as the store manager, Shepherd immediately tried to discuss an accommodation. Tr. 175. Thompson told Shepherd that “he didn’t have to hear about it. He’d already . . . been informed by Mr. Smith that [Shepherd was] doing as [he] was scheduled.” Id. Despite the pain and flare-ups, Shepherd mopped as he was told because “with [his] wife and kids, [he] couldn’t afford to lose [his] job.” Id. Throughout 2002–2003, Shepherd provided AutoZone myriad forms verifying his impairment and the need for an accommodation, and he made multiple accommodation requests to several different AutoZone officials. He provided an Illinois Industrial Commission’s workers-compensation decision, dated March 25, 2002, that describes his impairment, chronicles his history of treatments, and states that “if he does not engage in upper extremity activities such as mopping, overhead lifting or other activities that would aggravate the trapezius muscle or rhomboid muscle then he should do well and not require any medical care.” R.227, at 3; EEOC Ex. 9. He gave that decision to Wilmot, who faxed it to the corporate office and discussed it with Smith. Tr. 169. Shepherd specifically produced this document at Smith’s request to “substantiate[] that [Shepherd] shouldn’t be mopping.” Id. at 170. Shepherd also gave Wilmot an AutoZone-created “Medical Evaluation Form,” dated by his doctor on July 3, 2002, which states that Shepherd should not be twisting his upper body “at all.” EEOC Ex. 14; Tr. 171. Wilmot faxed that document to Tracy Burham, AutoZone’s regional human-resource manager. Tr. 171. Shepherd’s treating physician, Dr. Marc Katchen, testified that he thought the form made it clear that Shepherd was not to mop. Id. at 297. After submitting this form, Shepherd again spoke with Smith about accommodating his disability, and again, Smith told him that if he “couldn’t do as [he] was scheduled, regardless of whether it was mopping or not, that [he] should just find alternative employment.” Tr. 173. Shepherd continued to mop. Id. In March 2003, mopping again reaggravated Shepherd’s impairment, causing him to take a leave of absence. Tr. 176–77. Before returning to work after this leave, Shepherd provided another form verifying his impairment and need for an accommodation. In the AutoZone-created form, dated April 9, 2003, Shepherd’s doctor states: “Due to previous re-aggravating injuries caused by mopping which appears to have created an even more serious condition this and similar activities as operating a floor buffer should be avoided totally.” Id. at 177–78, 249; EEOC Ex. 1. The form states that the “medical evaluation form for July 3rd, 2002, will also give insight.” Tr. 178; EEOC Ex. 1. In a note accompanying the form, Dr. Katchen urged AutoZone that if it had “any questions[,] please call.” Tr. 251. As Dr. Katchen testified, “we actually worked hard just to eliminate [the mopping]. We wrote it very clearly.” Id. at 245. AutoZone never called him. Id. at 247. Smith acknowledged receiving these forms, and testified that he discussed them with Thompson and that he sent them to “Corporate.” Id. at 371. Shepherd returned to work on April 20, 2003, but was still assigned mopping. Tr. 180. He again implored Thompson and Smith to accommodate him. He suggested that instead of mopping they allow him to sweep the floors with a push broom while someone else mopped after he swept. Id. This would spare him the repetitive rotations of the torso that caused the debilitating flare-ups. Id. They told him that he “would do whatever [he] was assigned to, whether it was sweeping, mopping or what have you.” Id. at 181. Shepherd made other efforts. After Shepherd expressed his frustration with Smith to his wife, Susan Shepherd, she suggested that he take his accommodation request to those higher in the corporate structure. Tr. 304. And he did. Around May 2003, he contacted Burham, the regional human resources manager, Chris [Last name unknown], the loss-prevention area manager, and Jacquelyn Moore, AutoZone’s lead disability coordinator, who worked in AutoZone’s corporate headquarters in Memphis, about the lack of accommodation, but none of them took action on his behalf. Id. at 192, 195. He told all of them that Smith was ordering Thompson to not accommodate his disability. Id. at 192. And, on June 7, 2003, Shepherd called AutoZone’s corporate headquarters and left a voicemail with Craig Blackwell, AutoZone’s vice-president of stores, complaining that Thompson and Smith were making him violate his medical restrictions and that he had contacted other AutoZone officials about this problem to no avail. Tr. 192; EEOC Ex. 4. As Shepherd wrote at the time, “[I] informed [Blackwell] [that] apparently Tracy, Chris, Jackie and/or anyone else intend to do anything about Steve Thompson and Steve Smith concerning my scheduled task’s [sic] and what Smith said about the situation that I’d appreciate some kind of help in my situation I’m in, and/or why no one does anything.” Id. Blackwell never responded. Id. Yet, as AutoZone stipulated, many of these officials had been trained on the requirements of the ADA. See R.207-1, at 4. Moore, the lead disability coordinator, likewise testified that she had attended an ADA training and understood an employer’s obligation to provide reasonable accommodations to an employee with a disability. Tr. 312–13. Thompson and Smith also testified to their training and knowledge of the ADA. Id. at 332–33, 342–43, 365–67. For their part, Smith and Thompson simply disputed Shepherd and Wilmot’s contention that they refused to accommodate Shepherd. Smith acknowledged that he learned of Shepherd’s impairment during one of his visits to the store early in his tenure as the district manager. Tr. 369. As Smith testified, “John came to me and said that he couldn’t do the mopping or the scrubbing or buffing, and I simply told him, that’s fine, John. But I said, it’s part of everybody’s duties to do that unless you have restrictions or something, and he said, well, I’ve got them.” Id. He also testified that he could not “remember if we were able to accommodate [Shepherd] or not.” Id. at 385. But he was sure that he had told Shepherd that he had “to follow [his] restrictions.” Id. at 445. Thompson, for his part, testified both that he was unaware of Shepherd’s disability and actively accommodated it. Thompson claimed that he was unaware that Shepherd had any medical restrictions before Shepherd’s final leave, which began in September 2003. Tr. 340, 452–53. But when shown one of Shepherd’s physical restrictions forms—one that Thompson himself forwarded to human resources in April 2003—he admitted that he knew about Shepherd’s disability in mid-August 2002. Id. at 342. He then testified that it was Shepherd who insisted on mopping. Id. at 355. AutoZone’s refusal to accommodate Shepherd took a physical and emotional toll on him. From March to September 2003, flare-ups of his back impairment occurred frequently. Again, a mopping-induced flare-up forced Shepherd out on medical leave from March 28 to April 11, 2003. Tr. 176–77. During this period, he was on pain medications, received needle injections of pain killers, and went to physical therapy. Id. at 249, 255. Any time he had a flare-up—as often as four or five times a week during this time period—Susan, his wife, assisted him with basic personal care tasks. R.227, at 2; Tr. 301, 306–09. She assisted him in getting dressed; Shepherd could not put on his pants or shoes without assistance. Id. She also would wash his feet and back when he showered, and shampoo, brush, and style his hair; he could not wash himself or groom his hair. Id. He suffered from depression due to the stress of the situation and painful bouts of flare-ups, leading his physician to put him on Zoloft, an anti- depressant. Tr. 265. AutoZone’s refusal to accommodate Shepherd came to a head on September 12, 2003. Thompson assigned Shepherd to mop and warned him that he would check the next morning to make sure that Shepherd had mopped. Tr. 195–96. Shepherd did as he was told and while attempting to wring out the mop, he felt a “sharp pain,” causing him to “scream[]” in pain. Id. at 196. Another PSM came to his aid and told Shepherd to stop mopping and that he would do it instead. Id. Shepherd attempted to work through his shift and do some paperwork instead, but when he reached to open a drawer, he again was jolted with “excruciating pain.” Id. at 197. Dr. Katchen testified that Shepherd came to urgent care and was “upset, tearful.” Tr. 256. Shepherd told him that the manager would not let him stay within his restrictions and “[i]t was affecting his life. It was affecting his family.” Id. Dr. Katchen prescribed Vicodin, which “is really just an out-and-out painkiller, which was a lot for [Dr. Katchen to prescribe] because [he] do[esn’t] give out very many pain medicines, Vicodin or above.” Id. at 258. Following the incident, Smith sent Shepherd a letter, dated September 15, 2003: Dear John, It has come to our attention that you are performing certain tasks that you should not be performing, such as, scrubbing, buffing, and sweeping. Moving forward, if you are scheduled to do any of these tasks, the manager will draw a line through the task and initial it, even though the scheduling system may schedule you to perform that task. It is just as much your responsibility as it is ours, to make sure you are not performing tasks that you are restricted from doing. Should this become a problem in the future, please notify your DM, Steven Smith, or your regional manager, Dennis LeRiche. Sincerely, Steven Smith District Manager AutoZone Ex. 24, at E264. Shepherd made contemporaneous notes on the letter, stating that Smith was “lieing” [sic] because “if [he] didn’t do [his] assigned tasks they would of [sic] wrote me up.” Id. After the September 12 injury, his doctor withheld him from work—Shepherd did not work again in 2003 and, indeed, has not worked since—and during the next few months, he underwent various treatments—heat treatment, physical therapy, medications, deep tissue massage, ultrasound, and more injections. Tr. 259–61. Dr. Katchen again prescribed Zoloft for depression and Ambien, a sleep inducer, for Shepherd’s insomnia caused by the stress and the pain. EEOC Ex. 20. AutoZone never allowed Shepherd to return to work and eventually fired him. II. Litigation History On June 13, 2007, the EEOC filed a complaint against AutoZone, alleging: (1) that since at least March 2003, AutoZone failed to make reasonable accommodations to Shepherd by requiring him to mop floors; and (2) that AutoZone’s refusal to return Shepherd to work in January 2004, keeping him on involuntary leave, and eventually firing him, was because of Shepherd’s disability, constituted a failure to accommodate his disability, and was in retaliation for filing EEOC charges. Following discovery, AutoZone moved for summary judgment on all claims. It argued that (1) the March to September 2003 accommodation claim should be dismissed on the ground that Shepherd was not disabled between March and September 2003, because, according to AutoZone, his physical impairment did not substantially limit a major life activity; and (2) the January 2004 discrimination, accommodation, and retaliation claims should be dismissed for various reasons. R.65. The district court granted summary judgment on the March to September 2003 accommodation claim. It reasoned that before September 12, 2003, Shepherd was not a qualified individual with a disability under the ADA, and thus not protected by the statute. R.91. The district court allowed the January 2004 disability discrimination, accommodation, and retaliation claims to proceed to trial. R.91. A jury eventually returned a verdict in AutoZone’s favor, specifically concluding that Shepherd was not qualified to perform his job as of January 2004. A2. After the trial, the EEOC moved to set aside the summary judgment grant on the March to September 2003 accommodation claim, R.142, 143, which the district court denied, R.166. The EEOC appealed the March to September 2003 accommodation claim, but not the others stemming from AutoZone’s refusal to return Shepherd to work in January 2004. R.170. On appeal, this Court reversed the summary judgment grant and remanded the case to the district court, holding that “a reasonable jury could readily determine from the totality of the evidence in this record that Shepherd was substantially limited in his ability to care for himself from March 2003 to September 2003,” and hence, disabled under the ADA. AutoZone I, 630 F.3d at 643, 644–45. AutoZone filed several pre-trial motions, including one arguing that Dr. Katchen should not testify because the EEOC did not produce an expert report from him. R.206, at 25–26. The judge denied that motion, R.215, at 7, and a jury trial was held June 1–3, 2011, R.230–33. After the close of the EEOC’s case-in-chief, AutoZone moved for a directed verdict on several grounds, including the ground—raised for the first time in the litigation—that the accommodation claim was collaterally estopped by the first-jury’s verdict. Tr. 433–34. The district court denied AutoZone’s motion, and the jury eventually returned a verdict in the EEOC’s favor. The jury awarded $100,000 in compensatory damages for the pain and suffering Shepherd endured from March to December 30, 2003, and $500,000 in punitive damages. R.222, at 2. The district court awarded $115,000 in backpay, A19–A21, an amount stipulated by the parties before trial, R.196. The total award was $715,000. The EEOC later stipulated to reduce the punitive damages award from $500,000 to $200,000 to bring the total of compensatory and punitive damages under the statutory cap of $300,000. R.267, at 1 (citing 42 U.S.C. § 1981a(b)(3)(D)). The final sum is $415,000—$115,000 in backpay, $100,000 in compensatory and $200,000 in punitive damages. The district court also granted the EEOC’s motion for an injunction, which provides: (1) AutoZone shall make reasonable accommodations to the known physical limitations of any qualified employee with a disability who is working at an AutoZone retail store within the Central District of Illinois and who requests an accommodation or whose need for an accommodation is otherwise known to AutoZone. (2) For three years from the date of this Order, AutoZone shall notify EEOC in writing within 30 days after any employee who is working at an AutoZone retail store within the Central District of Illinois requests an accommodation for his or her disability or within 30 days after AutoZone otherwise becomes aware of the need for such accommodation. (3) AutoZone shall maintain complete records for 4 years from this date of how it responded to such requests, including a description of the request, the investigation that was conducted, the interactive process, and the result of the complaint. Those records shall be made available for inspection by EEOC upon 48 hours notice to AutoZone’s HR department. A31; R.269, at 1–2. AutoZone brings various challenges to the verdict, the compensatory and punitive damage award, the injunction, and the vacation of costs. AutoZone does not challenge the backpay award. SUMMARY OF ARGUMENT 1. a. Issue preclusion is an affirmative defense that must be pleaded and proved. Failing to do so results in waiver. AutoZone asserted the defense for the first time at the close of the EEOC’s case-in-chief, at least 580 days after the AutoZone could have presented the defense to the district court. AutoZone waived the defense. b. Issue preclusion applies only when (among other things) the same issue is involved in the two proceedings and the determination of that question is “essential” to the prior judgment. The first jury’s conclusion that Shepherd was not qualified in January 2004 did not preclude the second’s conclusion that he was qualified from March to September 2003. Shepherd was working, and doing so capably, from March to September 2003, whereas in September 2003 he was injured in a workplace accident and has not worked since. Nor did the first jury decide that mopping was an essential function of Shepherd’s job. It merely decided, as AutoZone urged, that Shepherd was no longer able to work at all. 2. The district court did not abuse its discretion by allowing Dr. Katchen to testify. The EEOC complied with all requirements of the rules: it disclosed to AutoZone that Dr. Katchen would offer opinion testimony. The EEOC did not produce an expert report, but it did not have to, because a report is required only if the opinion a treating physician offers was formed outside the treatment context at the request of the offering party. Dr. Katchen was Shepherd’s treating physician, testified only about opinions he formed during Shepherd’s treatment, and did not form those opinions at the EEOC’s request. Even if an expert report were required, the testimony should not have been barred both because the EEOC were substantially justified in not producing a report and the lack of a report was harmless. The EEOC was substantially justified because for 886 days, AutoZone took the position that no report was required, and only repudiated that position weeks before the second trial—long after Dr. Katchen was deposed and after his deposition testimony was introduced, without a report, at the first trial. And the failure to produce a report was harmless because AutoZone knew that Dr. Katchen would testify about Shepherd’s depression and had ample opportunity to prepare for it. Even if the testimony should have been barred, this Court could reverse the verdict on that ground only if AutoZone shows that a significant chance exists that the testimony affected the outcome of the trial. AutoZone makes no such showing and nothing about Dr. Katchen’s testimony is necessary to sustain any part of the verdict or damages award. 3. The district court did not abuse its discretion in declining to remit the $100,000 compensatory damages award because it is neither monstrously excessive nor disconnected from the evidence. The evidence shows that because AutoZone refused to accommodate him, Shepherd endured tremendous pain and suffering, depression, insomnia, and two serious injuries, and was forced to rely on others to perform basic personal care tasks. And the award is similar to comparable cases— this Court has routinely affirmed six-figure awards in cases involving physical suffering. 4. The district court did not err in declining to grant judgment as a matter of law to AutoZone on punitive damages. Punitive damages are available in an ADA case where the employer has engaged in intentional discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” The requisite mental state is shown by, among other things, demonstrating (1) that the discriminating officials knew or were familiar with the antidiscrimination laws and the employer’s antidiscrimination policies or (2) that the discriminating officials lied, either to the plaintiff or the jury to cover up the discrimination. Here there is evidence both that the discriminating officials knew of the law and policies and lied to both the jury and Shepherd to cover up their actions. Nor did the district court err in declining to grant judgment as a matter of law to AutoZone on the good-faith affirmative defense to punitive damages. The jury could have rejected that defense based on the evidence showing that senior AutoZone officials were aware of the discrimination but failed to act. Shepherd’s pleas for an accommodation were ignored by at least three senior officials, including the lead disability coordinator, the regional human resources director, and a vice-president. 5. The district court did not abuse its discretion in granting an injunction. Once the EEOC proves discrimination, an injunction is warranted unless the employer proves that the discrimination is unlikely to recur. That AutoZone blames a “rogue” manager for the discrimination, even though Shepherd’s requests were ignored by senior AutoZone officials, and offers a new policy, developed just days before the EEOC’s motion for an injunction and after eight years of denial, fails to demonstrate that discrimination is unlikely to recur. 6. Only prevailing parties are entitled to costs under the rules. The EEOC is the prevailing party because it succeeded on a significant issue in the litigation. Therefore the district court did not abuse its discretion in vacating a cost award it had granted to AutoZone before the EEOC became the prevailing party. ARGUMENT I. AutoZone’s Claim that the Second-Jury Verdict Is Precluded by the First-Jury Verdict Was Waived, Is Barred by Laches, and Is Meritless. This Court reviews claims of issue preclusion de novo. Dexia Credit Local v. Rogan, 629 F.3d 612, 628 (7th Cir. 2010).<6> A. AutoZone forfeited the issue-preclusion defense because it failed to raise it in a timely manner. AutoZone raised the issue-preclusion defense for the first time in its motion for a directed verdict after the close of the EEOC’s case-in-chief. See supra p. 15. Issue preclusion is an affirmative defense and, like other affirmative defenses, “it is incumbent on the defendant to plead and prove a defense.” Taylor v. Sturgell, 553 U.S. 880, 907 (2008). Issue preclusion “is forfeited if not raised in timely manner.” Carnegie v. Household Int’l, Inc., 376 F.3d 656, 663 (7th Cir. 2004); see also Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687, 708 (7th Cir. 2001) (“Res judicata is an affirmative defense that is waived if a party does not plead it.”), rev’d on other grounds, 537 U.S. 393 (2003). AutoZone should have raised this defense by seeking leave to amend its answer or at the very least by a motion to dismiss or motion for summary judgment. Instead it raised it for the first time in its motion for a directed verdict on June 2, 2011, after the EEOC closed its case-in-chief in the second trial. The motion was filed: * 610 days after the first-jury verdict. A1–4. * 580 days after AutoZone filed papers opposing the EEOC’s motion to set aside the summary judgment grant on the accommodation claim. R.145. * 386 days after AutoZone filed its first brief with this Court regarding the accommodation claim. See Brief of AutoZone, AutoZone I, 630 F.3d 635 (filed 5/12/2010). * 260 days after AutoZone’s counsel told this Court at oral argument that the accommodation claim involved “a very finite period of time, March to September 2003.” See Oral Argument at 11:00–11:25, AutoZone I, 630 F.3d 635 (9/15/10). * 154 days after this Court reversed the summary judgment grant. A5. * 100 days after this Court issued its mandate. R.177. * 44 days after AutoZone filed fourteen pre-trial motions in limine. R.206. By failing to raise this defense for so long, AutoZone waived it. The purpose of the preclusion doctrines is to “protect against the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibility of inconsistent decisions.” Taylor, 553 U.S. at 892 (internal brackets and quotations omitted). Forcing a court to consider a defense first raised in a motion for a directed verdict does not serve the purpose of conserving judicial resources, nor does the countenance of such sandbagging spare the parties the burden of relitigation. Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985); see also Davis v. W. Cmty. Hosp., 786 F.2d 677, 682 (5th Cir. 1986) (“Use of collateral estoppel [after trial was complete] would not have furthered one of the important underlying purposes of this doctrine: promotion of judicial economy.”); Lowe v. Conlee, 742 F.2d 1140, 1141 (8th Cir. 1984) (“The raising of the claim of collateral estoppel . . . for the first time in their motions for judgment notwithstanding the verdicts was inappropriate.”). AutoZone’s defense also should be barred by laches. Sitting on this defense for at least 580 days, including during an appeal to this Court, only to spring it after the EEOC has concluded its case-in-chief is the epitome of an “[u]nreasonable delay or negligence in pursuing a right or claim . . . in a way that prejudices the opposing party.” Black’s Law Dictionary 879 (7th ed. 1999). In a similar circumstance, the First Circuit applied laches to bar the defense. In Explosives Corporation of America v. Garlam Enterprises, the defendant first raised the defense of collateral estoppel five years after it had known the operative facts and just as the litigation was nearing its end in the district court. See 817 F.2d 894, 900–01 (1st Cir. 1987). The First Circuit characterized it as “inexcusable” to wait that long to assert the preclusive effect of the earlier decision. Id. Laches applies with equal force here. B. Whether Shepherd was qualified to perform the essential functions of the PSM job from March to September 2003 was not decided by the first jury, not actually litigated, and not essential to the first-jury verdict. If not waived, to claim the benefit of issue preclusion, AutoZone must show that “(1) the issue sought to be precluded must be the same as that involved in the prior litigation, (2) the issue must have been actually litigated, (3) the determination of the issue must have been essential to the final judgment, and (4) the party against whom estoppel is invoked must be fully represented in the prior action.” See, e.g., Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th Cir. 2011); King v. Burlington N. & Santa Fe Ry. Co., 538 F.3d 814, 818 (7th Cir. 2008) (same). AutoZone carries the burden of establishing all necessary elements. 18 Wright & Miller, supra, § 4405; see also Taylor, 553 U.S. at 907. Here the first jury concluded that Shepherd was not qualified to perform the essential functions of the job in January 2004. That jury did not decide that he was not qualified from March to September 2003. The first-trial jury answered “no” to this question: “In January 2004, was Mr. Shepherd qualified to perform his job?” A2. The second-trial jury answered “yes” to this question: “Was John Shepherd qualified to perform his job during this period?,” R.222, at 1, where the verdict form made clear that the “period” referred to “concerned the period March 2003 to September 12, 2003,” id. Whether Shepherd was a qualified individual with a disability from March to September 2003—and therefore entitled to a reasonable accommodation under the ADA—raises a different issue than whether he was qualified after the September 2003 mopping accident. Specifically, between March and September 2003, Shepherd was mostly working, and ably so—his sales exceeded those of essentially everyone in the district and AutoZone even asked Shepherd to train other employees—whereas in September 2003, he reaggravated his impairment in the mopping accident and has not worked since. Courts, including this one, have repeatedly recognized that there are profound differences between addressing the qualifications of someone actually working in a position and assessing those of someone who is not.<7> At the first trial, AutoZone’s counsel made much of the factual differences between Shepherd’s condition before September 2003 and his condition after September 2003, telling the jury, “This case starts on January 16th, 2004, the day Dr. Katchen released Mr. Shepherd to return to work. So, all this stuff about his ability to accommodate himself in 2002 and 2003, terrific.” R.139, at 77 (Trial Tr. 464). Indeed, throughout this litigation, AutoZone’s position has been that whether Shepherd was qualified after the accident was very different from whether he was qualified before it—that is, until its eleventh-hour motion for a directed verdict. The same factfinder therefore could conclude that Shepherd was qualified from March to September 2003 but not from January 2004 on. There is nothing necessarily inconsistent about those two conclusions. There is, however, one issue that was disputed in both trials: whether mopping was an essential function of the parts sales manager. AutoZone argues that embedded in the first jury’s decision that Shepherd was not qualified in January 2004 is an underlying conclusion that mopping was an essential function of the job. But that is wrong. That issue was not actually decided by the first jury and certainly was not essential to its verdict. The first-trial jury did not make a specific finding that mopping was an essential function because there was no special question on that point. The jury merely decided that Shepherd was not qualified in January 2004. The jury could have concluded—indeed, it quite likely concluded—that Shepherd could not perform some, many, or all of the essential functions of the parts sales manager. This is the conclusion that AutoZone’s counsel urged the jury to reach, telling the first jury that whether mopping was an essential function was not necessary to its determination: “According to [the EEOC], all you have to do is sell things and you have a task—mopping task. Here’s the recovery checklist. I added them up so you don’t have to. There’s 25 items on here that have to be done to close the store.” R.139, at 86 (Trial Tr. 473). AutoZone’s counsel argued that the issue of mopping did not matter because Shepherd was so debilitated by January 2004 that he could perform no function: There’s only really one job I know of in the world where you don’t have to move and that’s being a guard at Buckingham Palace where you have to stand for eight hours. ... We didn’t allow—the reason we allowed him—not allowed him to return to work wasn’t because of disability discrimination. It’s that he can’t work. That’s why we didn’t allow him to return to work. He can’t rotate his upper body at all. He can’t—I’m not going to go through it all. You’ll see it. That form, I think, will go back to you, January 16, ’04, doctor’s restriction. That’s the reason we didn’t let him go back to work. R.139, at 89, 97 (Trial Tr. 476, 484). The first jury decided only that as of January 2004 Shepherd was no longer qualified, as AutoZone urged it to do. Whether mopping was an essential function was not actually decided and certainly was not “‘essential’ to the prior judgment.” See King, 538 F.3d at 818. The first jury’s verdict did not preclude the second’s. II. The District Court Did Not Abuse Its Discretion in Allowing Dr. Katchen to Testify Without Producing a Report and Even if a Report Were Required, Failure to Provide the Report Was Substantially Justified and Harmless. This Court reviews a trial court’s discovery decision to allow expert testimony for abuse of discretion. Miksis v. Howard, 106 F.3d 754, 758 (7th Cir. 1997). A court does not abuse its discretion unless: (1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary. Musser v. Gentivia Health Servs., 356 F.3d 751, 755 (7th Cir. 2004) (citing Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000)). The district court erred in allowing Dr. Katchen’s testimony only if a report were required under the rules and the failure to produce a report was neither substantially justified nor harmless. See Fed. R. Civ. P. 37(c)(1). A. No report was required because Dr. Katchen was Shepherd’s treating physician and testified only about observations and conclusions he made during Shepherd’s treatment. The rules require that “[a]ll witnesses who are to give expert testimony under the Federal Rules of Evidence must be disclosed under Rule 26(a)(2)(A)” but “only those witnesses ‘retained or specially employed to provide expert testimony’ must submit an expert report complying with Rule 26(a)(2)(B).” Banister v. Burton, 636 F.3d 828, 833 (7th Cir. 2011) (citing Musser, 356 F.3d at 756–57); see also Fed. R. Civ. P. 26(a)(2)(C). And “[a] treating physician . . . can be deposed or called to testify at trial without any requirement for a written report.” Fed. R. Civ. P. 26 advisory committee’s note 1993. The EEOC complied with these requirements. It disclosed Dr. Katchen as an expert under Rule 26(a)(2)(A). R.214-1, at 1. AutoZone knew that Dr. Katchen would offer opinion testimony about Shepherd’s condition, opinions formed during the course of treating Shepherd. But because Dr. Katchen was the treating physician and not an expert “retained or specifically employed to provide expert testimony,” the EEOC did not have to produce a written report. See Banister, 636 F.3d at 833. To be sure, this Court has concluded that a report must be prepared before a treating-physician can provide expert testimony if the treating-physician testifies about opinions formed outside the treatment context and specifically for litigation. In Meyers v. National Railroad Passenger Corp., 619 F.3d 729, 734–35 (7th Cir. 2010), the plaintiff retained his treating physician to testify about the cause of his injuries even though the physician never made such a determination during treatment. Under those circumstances, this Court held that the physician would be required to submit an expert report in accordance with Rule 26(a)(2). Id. at 734–35. The rule of Meyers applies only to a “treating physician who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in the course of providing treatment.” Id. (emphasis added). As this Court clarified in Banister v. Burton, “Meyers applies to physician’s opinion as to the cause of an injury determined for the purpose of litigation, which is different from a physician’s opinion as to the effects of the injury at the time of the treatment.” 636 F.3d at 833 (second and fourth emphases added). The rule of Meyers does not govern Dr. Katchen’s testimony because he “did not formulate his opinion at the request of [the party offering the expert witness] as the doctors in Meyers had.” See id. There is no dispute about this: AutoZone has never contended that Dr. Katchen formed his opinions at the request of the EEOC. The district court got it right: “[Dr. Katchen’s] opinions were rendered well before this litigation, and during the course of treatment. They do not fall within the niche carved out by Meyers.” R.215, at 7. AutoZone fails to demonstrate otherwise. In its brief, AutoZone, without referencing any specific testimony, states that “when Dr. Katchen offered causation opinions concerning Shepherd’s depression at trial (Dkt. 231 at 254, 256, 265–66), AutoZone had not previously been presented with anything that might resemble a ‘report’ containing the ‘basis and reasons’ for his conclusion.” AutoZone Br. 28. Note that AutoZone does not argue that any of his testimony was beyond the scope of his treatment. Nor can it. An examination of his testimony reveals that Dr. Katchen offered only opinions that he formed while treating Shepherd. On pages 254–55, he testified that Shepherd always had a good, positive attitude until mid-2003. There was one note where he just came in where I think I reported that he just looked down, that he looked kind of defeated, that he felt like he just wasn’t getting a chance to come back and stay away from the things that were causing him to be—get worse. On page 256, he testified: There was one [time] where he [Shepherd] just walked in. He was upset, tearful. So we said, Okay, John, just stay here. We’ll just see you. . . . I believe that was the time that he came in, and he was talking about that the manager wasn’t allowing him to stay within the limitations that we stated; that they keep on putting him on the mopping duty and that he was getting worse. It was affecting his life. It was affecting his family. And on pages 265–66, he was asked about prescribing Zoloft to Shepherd and responded: Zoloft is an antidepressant. It comes from the same family as Prozac, the serotonin uptake inhibitors. Like I said, when John had come to me earlier in 2003 and said that—when he looked beaten, when he looked like he was— finally lost that kind of push, we put him on an antidepressant. As I believe when we started it, because he didn’t have money to cover it, we chose Zoloft because I had samples. So we carried him for a long time on samples until there—we couldn’t do that anymore. Then wrote the script for it. Then EEOC counsel asked, “And did—at this time in November 2003, did you experience any—did you witness John Shepherd experiencing any depression or stress-like symptoms?” Dr. Katchen responded: That’s what he was reporting. He said that the, you know, time off work and not feeling like he was—you know, everything was working to get him back there was causing stress again at home which, again, it’s hard to recover if your home life is not going very well, and you’re stressed and you can’t seem to control yourself at home. You don’t see the—I guess the end of the road. And that is the totality of the testimony that AutoZone argues requires a report and the admission of which warrants a reversal of the jury verdict. Dr. Katchen testified about conclusions and observations he made during Shepherd’s treatment and therefore no report was required. The district court did not abuse its discretion in so concluding. B. The failure to produce a report was substantially justified because AutoZone told EEOC counsel that no report was necessary and waited 886 days before repudiating that position. Even if a report were required, exclusion would not be warranted if the “failure [to provide the report] was substantially justified.” Fed. R. Civ. P. 37(c)(1). In November 2008, after the EEOC objected to AutoZone’s request that it produce an expert report for Dr. Katchen, counsel for AutoZone agreed no report was required, stating, “I agree [Dr. Katchen] doesn’t have to produce a report.” See R. 214-2, at 1 (E-mail from Joseph Spitzzeri, AutoZone Counsel, to Justin Mulaire, EEOC Counsel (Nov. 14, 2008)). Only much later, on April 19, 2011—after Dr. Katchen’s deposition and before the second trial—did AutoZone repudiate its position that a report was not required. See R.206, at 16 (AutoZone Motions in Limine). (AutoZone also did not argue before the first trial that a report was required even though Dr. Katchen’s deposition testimony was introduced then as well.) The EEOC was substantially justified in not producing a report when AutoZone itself agreed for 886 days that no report was needed and waited till the eve of the second trial to state otherwise. C. The failure to produce a report was harmless because AutoZone had ample opportunity to prepare a response without it. AutoZone argues that the failure to produce a report was not harmless because AutoZone had no opportunity to prepare for Dr. Katchen’s testimony about depression. That is not true. Dr. Katchen had been deposed about treating Shepherd for depression, as AutoZone concedes. AutoZone Br. 27. There was nothing surprising about his testimony. D. Even if the district court erred in allowing Dr. Katchen’s testimony that error would not warrant reversal because there is not a significant chance that his testimony affected the outcome of the trial. Even assuming that a report was required and failing to produce it was not substantially justified or harmless, a new trial is warranted only if the testimony was harmful. Banister, 636 F.3d at 833. Evidentiary errors satisfy that standard only when a significant chance exists that they affected the outcome of the trial. Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1082 (7th Cir. 1998). AutoZone fails to argue, much less make any showing, that there is a significant chance that the outcome of the trial would have been different had Dr. Katchen not testified. Even without Dr. Katchen’s testimony, there is sufficient evidence to support a finding that AutoZone discriminated against Shepherd and caused substantial pain and suffering. See supra pp. 7–14. The amount of physical pain and suffering that Shepherd endured alone—without any consideration of depression—is sufficient to sustain an award of $100,000 in compensatory damages. AutoZone’s arguments about this issue are meritless. III. The District Court Did Not Abuse Its Discretion in Declining to Remit the Jury’s Award of $100,000 in Compensatory Damages Because the Award Is Not Monstrously Excessive, Is Rationally Connected to the Evidence, and Is Comparable to Awards Made in Similar Cases. This Court reviews a district court’s decision to decline a motion to remit a compensatory damage award for abuse of discretion. See, e.g., Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 410 (7th Cir. 2010). Remittitur is proper only if the award is “monstrously excessive,” not rationally connected to the evidence, and not comparable to awards in similar cases. See, e.g., Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 483–84 (7th Cir. 2003). A. Compensating Shepherd $100,000 for ten months of daily pain, two serious physical injuries, insomnia, and depression caused by AutoZone’s refusal to accommodate him is neither monstrously excessive nor disconnected from the evidence. As the district court found, “It would be hard to conclude that an award of $100,000 is ‘monstrously excessive’ or not ‘rationally connected’ to the $100,000 compensatory damages verdict that was entered. The jury heard a great deal of testimony about Shepherd’s near daily pain for 6 months and about the need for physical therapy and other medical attention, including but not limited to depression that his doctor noted was related to his being off work.” A14. AutoZone does not argue, nor does it demonstrate, that these factual findings are clearly erroneous. Thus, these findings alone are sufficient to support the compensatory award. Nonetheless, the district court’s factual findings (and more) are fully supported by the record. See supra pp. 11–14. In addition to those findings, the evidence shows that AutoZone’s failure to accommodate caused two major injuries and near daily pain for ten months—March to December 2003––not six, led to pain injections and insomnia, and forced Shepherd to rely on his wife for what this Court has already called “the most basic personal care tasks.” AutoZone I, 630 F.3d at 642. A reasonable jury therefore could conclude that the totality of Shepherd’s physical pain and suffering over the last ten months of 2003 was tremendous. AutoZone’s contention that “[t]he evidence of pain and suffering or depression between March and September 2003 caused by a lack of accommodation is minimal,” AutoZone Br. 45, is simply wrong. B. The $100,000 award is comparable to awards in similar cases. The jury awarded $100,000 to compensate Shepherd for the near daily physical pain and two re-injuries, which led to various medical treatments and medication. This Court’s inquiry can end right there because, as this Court has noted, “[w]e have upheld six-figure awards for nonpecuniary loss [in employment discrimination cases] even when the plaintiff did not seek professional assistance.” Thompson, 625 F.3d at 408 (citing Deloughery v. City of Chicago, 422 F.3d 611, 621 (7th Cir. 2005) (upholding $175,000 award where the plaintiff did not seek professional help after she did not receive a promotion but testified to her devastation at not being promoted, described obstacles she had overcome in her life, and explained the impact of the decision on herself and her family)). And this Court has sustained substantially higher compensatory damages awards in cases whose harm “included a physical element.” See id. at 410. Moreover, this Court has affirmed similar and even higher awards in cases involving comparable or even less suffering.<8> Notwithstanding these cases and others, AutoZone relies on two cases—Avita v. Metropolitan Club of Chicago, 49 F.3d 1219 (7th Cir. 1995), and Merriweather v. Family Dollar Stores of Indiana, 103 F.3d 576 (7th Cir. 1996)—to argue that the jury’s award in this case is not comparable to awards in similar cases. But “even though [a]wards in other cases provide a reference point that assists the court in assessing reasonableness[,] they do not establish a range beyond which awards are necessarily excessive.” Deloughery, 422 F.3d at 621. “Due to the highly fact-specific nature of Title VII cases, such comparisons are rarely dispositive.” Id. “Rather, [this Court’s] role in reviewing awards for abuse of discretion is to determine if the award in this case was roughly comparable to similar cases, such that the instant award was not so beyond the pale as to constitute an abuse of discretion.” Thompson, 625 F.3d at 409 (quoting Farfaras, 433 F.3d at 567). Nonetheless, Avitia and Merriweather do not demonstrate that the award here is out of line because those cases involve no physical suffering and more limited emotional suffering. The Avita court, for example, remitted an award of $21,000 in compensatory damages to $10,500 in a retaliatory discharge case where the plaintiff presented “no evidence” of physical pain or distress, and emotional distress evidence which consisted of his own statement that he cried after losing his job and was upset by the experience, but that after the initial “moment’s pang of distress,” he was able to find new and comparable employment within a few months. 49 F.3d at 1226, 1229. And in Merriweather, this Court remitted a compensatory-damages award from $25,000 to $18,750 for a short-term, part-time employee who testified to emotional distress but where there were “[o]ther factors relating to her emotional distress during this tumultuous period in her life, . . . unrelated to Family Dollar, includ[ing] the death of Merriweather’s father, being evicted from her apartment, and being unable to find a suitable job.” 103 F.3d at 581. There, the plaintiff’s “belief that she had been discriminated against, given negative recommendations which kept her from getting work elsewhere, and harassed by Family Dollar added to her anger and distress,” was but one source of her emotional distress. Id. Here AutoZone caused the flare-ups, two re-injuries, near daily pain, suffering, depression, and insomnia. AutoZone argues that “the record reflects that Shepherd’s pain and suffering and depression were due to factors and events prior to the relevant time period of March to September 2003,” AutoZone Br. 44, but there is no evidence supporting the notion that Shepherd’s flare-ups in 2003 were caused by anything but mopping. In fact, the evidence states just the opposite. The Illinois Industrial Commission finding, dated March 2002, for example, states that “if [Shepherd] does not engage in upper extremity activities such as mopping . . . he should do well and not require any medical care.” See supra p. 7. To the extent that the failure to accommodate Shepherd worsened his pre- existing condition, that exacerbates, not ameliorates AutoZone’s culpability. As this Court made clear in Avita, “[i]n a statutory tort case as in a common law tort case, the ‘eggshell skull’ rule prevails, so it is no defense to an award of full damages that the plaintiff’s injury was amplified by a preexisting condition for which the defendant was not responsible.” 49 F.3d at 1228. That AutoZone refused to accommodate Shepherd knowing his already painful condition makes the award more defensible, not less. Likewise, that Shepherd might have had family problems in 1998, as AutoZone asserts, hardly indemnifies AutoZone from the family strife that it caused by refusing to accommodate him. The award of $100,000 in compensatory damages should be affirmed. IV. The Punitive Damages Award of $200,000 Is Supported by the Record and Does Not Violate the Due Process Clause. A. There are sufficient facts to support the jury’s conclusion that AutoZone engaged in intentional discrimination with malice or reckless indifference to Shepherd’s federal rights and that AutoZone did not engage in good- faith efforts to establish and enforce an antidiscrimination policy. AutoZone argues that there is insufficient evidence to support the imposition of punitive damages and therefore it is entitled to judgment as a matter of law on punitive damages. This Court reviews that question de novo, viewing the evidence and all reasonable inferences that can be taken from that evidence in the light most favorable to the EEOC. Bruso v. United Airlines, 239 F.3d 848, 857 (7th Cir. 2001); Lampley, 340 F.3d at 482. 1. There is sufficient evidence to support the jury’s verdict that the discrimination committed against Shepherd was done by managerial agents acting within the scope of their employment who did so in the face of a perceived risk that their actions could violate federal law. Punitive damages are available in an ADA case where the employer has engaged in intentional discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1); see also 42 U.S.C § 1981a(a)(2).<9> To reverse the jury’s grant of punitive damages, AutoZone must demonstrate that no reasonable jury, even after viewing the evidence in the light most favorable to the EEOC and drawing all reasonable inferences in the EEOC’s favor, could conclude that the discrimination committed against Shepherd was done by managerial agents acting within the scope of their employment and that they did so “in the face of a perceived risk that its actions will violate federal law.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535, 543 (1999); Bruso, 239 F.3d at 857–58. A plaintiff can demonstrate that the officials acted with the requisite mental state several ways. It can “demonstrat[e] that the relevant individuals knew or were familiar with the antidiscrimination laws and the employer’s policies by implementing those laws.” Bruso, 239 F.3d at 858 (citing Ogden v. Wax Works, Inc., 314 F.3d 999,1010 (8th Cir. 2000)); see also Hertzberg v. Sram Corp., 261 F.3d 651, 662–63 (7th Cir. 2001); Romano v. U-Haul Int’l, 233 F.3d 655, 669 (1st Cir. 2000); Lowrey v. Circuit City Stores, Inc., 206 F.3d 431, 443 (4th Cir. 2000); EEOC v. Wal- Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999)). “A plaintiff may also establish that the defendant acted with reckless disregard for [the] federally protected rights by showing that the defendant’s employees lied, either to the plaintiff or to the jury, in order to cover up the discriminatory action.” Bruso, 239 F.3d at 858. Here there was sufficient evidence to support a finding both that the individuals were familiar with the ADA and that they lied to cover up the discrimination.<10> AutoZone stipulated that Smith, Thompson, James, and Moore had received training about the ADA. See R.207-1, at 4. And trial testimony says the same. See supra p. 10. This is not a situation involving an unsophisticated defendant “simply . . . unaware of the relevant federal prohibition” or a case in which the theory of discrimination was “novel.” Kolstad, 527 U.S. at 536–37. There also is evidence both that the defendants lied to the jury and that they lied to try to cover up the discrimination at the time of Shepherd’s injury. As AutoZone told the jury, “[T]his is the classic he said/she said case. Mr. Smith and Mr. Thompson . . . deny that they ever forced Mr. Shepherd to mop in violation of his medical restrictions . . . . [W]e know that Mr. Shepherd, Mr. Smith and Mr. Thompson can’t all be right. Somebody is not telling the truth. We believe the evidence is going to support Smith and Thompson.” Tr. 97–98. The jury believed Shepherd. Smith and Thompson lied. Smith’s post-accident letter also demonstrates a cover-up. Because the jury concluded that Smith was necessarily lying about accommodating Shepherd, Smith’s letter—which attempts to shift the blame to Shepherd for Smith’s refusal to follow the law—demonstrates that Smith knew that what he had done was wrong and that other AutoZone officials thought so too. See supra p. 13. The managerial agents knew about their ADA obligations, discriminated against Shepherd with knowledge of those obligations, and then lied to him and the jury to cover it up. The jury’s conclusion that AutoZone had the requisite mental state to award punitive damages is sufficiently supported by the record. 2. There is sufficient evidence to support the jury’s rejection of AutoZone’s good-faith defense because the evidence supports a finding that AutoZone failed to make a good-faith effort to establish and enforce an antidiscrimination policy. “An employer may escape punitive damages liability for its manager’s acts, however, if it can demonstrate a good faith attempt to establish and enforce an antidiscrimination policy.” See Cooke v. Stefani Mgmt. Servs., Inc., 250 F.3d 564, 568 (7th Cir. 2001); see also Bruso, 239 F.3d at 859. AutoZone therefore would be entitled to judgment as a matter of law only if can demonstrate that the jury was required, as a matter of law, to conclude that it engaged in good-faith efforts to establish and enforce an antidiscrimination policy. But a reasonable jury could reject AutoZone’s good-faith defense for a number of reasons. Merely having an anti-discrimination policy is not enough; an employer must actually make a good-faith effort to enforce it. See Cooke, 250 F.3d at 568. And AutoZone produced no evidence demonstrating that it ever enforced an ADA policy. Moreover, knowing inaction by upper level management, as we have here, is sufficient to defeat the good-faith defense that the employer enforced its anti- discrimination policy. See Bruso, 239 F.3d at 861 (concluding that the defendant was not entitled to judgment as a matter of law on the good-faith defense where “top management officials disregarded the [company’s] policy by refusing to remedy [the] harassment even though they knew about it”). “[E]ven if an employer-defendant adduces evidence showing it maintains on paper a strong non-discrimination policy and makes good faith efforts to educate its employees about that policy and Title VII, a plaintiff may still recover punitive damages if she demonstrates the employer failed to adequately address Title VII violations of which it was aware.” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000); see also Hertzberg, 261 F.3d at 664 (good-faith defense defeated where managers were ineffective in ending the discrimination). Here several AutoZone officials were aware that Smith and Thompson were not accommodating Shepherd and yet did nothing. The evidence shows that AutoZone’s regional human resources director, lead disability coordinator, manager of loss prevention, and vice-president for stores, all turned a blind eye to Shepherd’s pleas for help, and as a result he experienced tremendous pain and was seriously injured.<11> See supra pp. 9–14. A jury may also reject the good-faith defense when the employer fails to “put forth evidence of an active mechanism for renewing employees’ awareness of the policies through either specific education programs or periodic re-dissemination or revision of their written materials” or fails to show that “their anti-discrimination policies were successfully followed.” See Romano, 233 F.3d at 670. AutoZone produced no evidence showing that its policies had an enforcement mechanism or were successful. Finally, AutoZone argues that Bruso’s requirement—that to invoke the good- faith defense an employer must not only have a policy but also demonstrate effective enforcement of it—should not apply because, according to AutoZone, Bruso was wrongly decided and therefore should not bind this panel. AutoZone argues that the Bruso Court relied on a misreading of Romano v. U-Haul International, 233 F.3d 655, to “expan[d] . . . the implementation requirement to include ‘enforcement’ of the policy beyond mere adoption and education.” AutoZone Br. 37. AutoZone contends that the Romano court held that an employer need only show that it implemented an antidiscrimination policy by “educating its employees or actively enforcing its mandate,” and that “[t]he Bruso court, without explanation, dropped the ‘educating its employees or’ language of Romano thereby establishing a new and broader scope of liability for employers not supported by Romano.” AutoZone Br. 37–38. AutoZone is simply misrepresenting the Romano decision. Romano states: “A defendant must also show that efforts have been made to implement its anti- discrimination policy, through education of its employees and active enforcement of its mandate.” 233 F.3d at 670 (emphasis added). This misrepresentation was pointed out to AutoZone in the district court briefing, R.254, at 17–18, and even a cursory reading of the opinion would disabuse anyone of the notion that Romano states that an employer can invoke the good-faith defense simply by having a policy and informing its employees about it. Yet AutoZone’s misrepresentation persists in this Court. Bruso is not premised upon a misreading of Romano, and in any event, it, and other cases, supply the controlling circuit standard, which AutoZone has not met. AutoZone’s request for judgment as a matter of a law on its good-faith defense should be rejected. B. The $200,000 punitive damages award does not violate the due process clause because AutoZone’s misconduct is reprehensible, the punitive damage award is roughly equal to the total damages, and the award is similar to awards in comparable cases. AutoZone argues that the punitive damages award violates due process, and this Court reviews that challenge de novo. Kunz v. DeFelice, 538 F.3d 667, 678 (7th Cir. 2008). First, the award does not violate due process because it is below the congressionally-authorized cap. In BMW of North America Inc. v. Gore, 517 U.S. 559, 568 (1996), the Supreme Court held that a punitive damage award may violate due process if the award can be categorized as “grossly excessive” in relation to a state’s interests in punishment and deterrence. “Fundamental to the due process analysis is whether [the employer] received fair notice that the conduct in question was prohibited and what the potential penalty for engaging in that conduct could be.” Romano, 233 F.3d at 672. But “[w]hen Congress sets a limit, and a low one, on the total amount of damages that may be awarded, the ratio of punitive to compensatory damages in a particular award ceases to be an issue of constitutional dignity.” See Lust v. Sealy, Inc., 383 F.3d 580, 590 (7th Cir. 2004). The purpose of placing a constitutional ceiling on punitive damages is to protect defendants against outlandish awards, awards that are not only irrational in themselves because out of whack with any plausible conception of the social function of punitive damages but potentially catastrophic for the defendants subjected to them and, in prospect, a means of coercing settlement. That purpose falls out of the picture when the legislature has placed a tight cap on total, including punitive, damages and the courts honor the cap. Id. at 590–91; see also Romano, 233 F.3d at 673; Wal-Mart, 187 F.3d at 1249. The $200,000 punitive damages award does not violate due process because it is under the cap. Second, even under the BMW factors, the award does not violate due process. Three factors are considered: (1) the degree of reprehensibility of the misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded and those imposed in comparable cases. BMW, 517 U.S. at 575; see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). Most important is the reprehensibility of the defendant’s conduct. BMW, 517 U.S. at 575. AutoZone refused to provide a remarkably modest accommodation—one that was available to other non-disabled employees—despite knowing that Shepherd was disabled, needed the accommodation, and was entitled to it under federal law. Several senior officials ignored his pleas for help, causing Shepherd tremendous pain and suffering, depression, insomnia, and two serious injuries. AutoZone has devoted eight years to calling Shepherd a liar. Its conduct has been truly reprehensible. As for the ratio factor, again, “[w]hen Congress sets a limit . . . the ratio of punitive to compensatory damages in a particular award ceases to be an issue of constitutional dignity.” Lust, 383 F.3d at 590. In any event, awards of roughly one- to-one actual damages to punitive damages as we have here—$215,000 actual damages ($115,000 backpay and $100,000 compensatory) versus $200,000 in punitive damages—will rarely, if ever, violate due process. See, e.g., Pickett v. Sheridan Health Ctr., 610 F.3d 434, 447 (7th Cir. 2010) (concluding that a punitive damage award that was three-and-one-third times the size of the compensatory award did not violate due process and rejecting a one-to-one compensatory-to- punitive-ratio requirement in a Title VII case). Finally, this award is similar to those in comparable cases. In Lampley, this Court concluded that a punitive damage award of $270,000 was reasonable in a case involving $76,000 in compensatory damages, based on the showing that the employer’s upper management knew of the plaintiff’s EEOC charge and concluded that they had in fact illegally terminated him, but nonetheless chose to discredit him rather than admit to facts surrounding his termination. 340 F.3d at 485. Here AutoZone management officials, including some very senior ones, were aware of Shepherd’s request. AutoZone nonetheless has spent several years claiming that Shepherd was lying and that he, not AutoZone, insisted upon mopping. Shepherd endured substantial physical and emotional suffering as a result—comparable or worse than the plaintiff’s suffering in Lampley. And in EEOC v. AIC Security Investigations, Ltd., this Court affirmed a punitive damage award of $150,000 in an intentional disability-discrimination case where the compensatory damages were $50,000. 55 F.3d 1276, 1287 (7th Cir. 1995). This Court reasoned that, while “no fixed ratio is necessary or desirable,” that award was only “three times the compensatory damages, and statutes routinely provide for double and treble damages awards to deter and punish.” Id. Yet AutoZone relies on Gile v. United Airlines, 213 F.3d 365 (7th Cir. 2000), and Shott v. Rush-Presbyterian-St. Luke’s Medical Center , 338 F.3d 736 (7th Cir. 2003), to argue that the amount of the punitive damages in this case violates the due process clause. But in Gile, this Court did not decide that an excessive award violated due process; it concluded that the respective plaintiffs failed to meet the requirements for any punitive-damages award. See 213 F.3d at 375–76. And in Shott, the question of punitive damages was not even presented to this Court. 338 F.3d at 739. They are inapplicable. The punitive damages award does not violate due process. V. The District Court Did Not Abuse Its Discretion in Imposing a Modest Injunction Because AutoZone Has Failed to Demonstrate that the Discrimination Is Unlikely to Recur. This Court reviews a district court’s grant of a permanent injunction for abuse of discretion. Sierra Club v. Franklin County Power of Ill., LLC, 546 F.3d 918, 935 (7th Cir. 2008). Once a court finds that the employer “has intentionally engaged in . . . an unlawful employment practice,” it “may enjoin [the employer] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1). “[T]he district court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Once the EEOC proves discrimination, it is the employer’s burden to prove that a violation is “not likely to recur.” EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1292 (7th Cir. 1993); see also EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir. 1997); EEOC v. United Parcel Serv., 94 F.3d 314, 318 (7th Cir. 1996). “The relevant inquiry . . . is whether the employer’s discriminatory conduct could possibly persist in the future.” Bruso, 239 F.3d at 864. “[I]njunctive relief is appropriate even where the Commission has produced no evidence of discrimination going beyond the particular claimant’s case.” Ilona of Hungary, 108 F.3d at 1578; see also Bruso, 239 F.3d at 864; Harris Chernin, 10 F.3d at 1292. AutoZone fails to show that the discrimination is not likely to recur. Instead, AutoZone argues that “[a]t most, this dispute was a case of a rogue district manager, Smith, failing to act in accord with AutoZone anti-discrimination policies and training in a specific isolated incident.” AutoZone Br. 58. AutoZone does not take responsibility for its failures, nor is it circumspect about what it must do to prevent future violations. As the district court noted, AutoZone argues this “despite the fact that the evidence included the knowledge of Shepherd’s disability and request for accommodation by upper management (at least 3) and HR personnel.” A30. The problem may have begun with a rogue manager but it persisted and metastasized because of the complicity of other senior officials in the company. AutoZone has made no showing that such organizational failures are not likely to recur. AutoZone also asserts that there is no to need to worry, because it adopted a new ADA policy in 2011. See AutoZone Br. 52. That AutoZone updated its policy just four days before the EEOC’s motion for an injunction and after eight years of denial and recalcitrance is better than nothing, but too little, too late. As the district court stated, “given AutoZone’s rather grudging acknowledgment of its responsibility to Shepherd and its other employees, there is indeed the possibility of future infractions.” A30. Rather than demonstrating that it finally has taken this claim and its responsibilities seriously, AutoZone instead argues that the district court abused its discretion in granting a modest injunction, because, according to AutoZone, some district courts have not granted injunctions in particular employment discrimination cases. See AutoZone Br. 51–55 (collecting cases). Those cases are simply beside the point. AutoZone has failed to demonstrate that a violation is unlikely to recur; it does not even try. The district court did not abuse its discretion. VI. The District Court Did Not Abuse Its Discretion in Vacating the Award of Costs to AutoZone Because AutoZone Is Not the Prevailing Party. Only a prevailing party is entitled to costs under Fed. R. Civ. P. 54(d). The EEOC is the prevailing party in this case because it “succeed[ed] on a[] significant issue in [the] litigation which achieves some of the benefit the parties sought in bringing suit.” See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Again, a jury has concluded that AutoZone engaged in intentional disability discrimination and the district court awarded $715,000, later reduced to $415,000 to bring the award under the statutory cap. “[A] determination of who is the prevailing party for purposes of awarding costs should not depend on the position of the parties at each stage of the litigation but should be made when the controversy is finally decided.” See Republic Tobacco Co. v. N. Atlantic Trading Co., Inc., 481 F.3d 442, 446 (7th Cir. 2007). AutoZone therefore is not entitled to costs under Rule 54, and the district court did not abuse its discretion in concluding otherwise. AutoZone nonetheless argues that the EEOC waived its right to costs as a prevailing party because it did not raise this issue on the first appeal even though the EEOC was not yet the prevailing party at that time. But the cases relied on by AutoZone do not stand for the notion that a not-yet-prevailing party must challenge costs in an appeal in order to obtain costs (or vacate costs to the other side) when it later becomes the prevailing party. Once the EEOC became the prevailing party it moved with haste to vacate the cost award, and the district court did not abuse its discretion in granting that motion. CONCLUSION AutoZone refused Shepherd a modest accommodation that was available as a matter of course to other non-disabled employees. Shepherd pleaded with senior AutoZone officials for relief, but was ignored. AutoZone’s refusal caused flare-ups, two re-injuries, pain, suffering, depression, family strife, and insomnia. AutoZone has spent eight years fighting the government’s enforcement action and calling Shepherd a liar. A jury and the district court have held AutoZone to account. Rather than taking responsibility, AutoZone continues this litigation by raising six meritless issues. It is time for this case to end and for Shepherd to get some semblance of relief. The EEOC asks that this Court affirm the district court’s judgment in its entirety. Respectfully submitted, P. DAVID LOPEZ General Counsel /s/ Eric A. Harrington ERIC A. HARRINGTON LORRAINE C. DAVIS Attorney Acting Associate General Counsel EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,923 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5), the type style requirements of Fed. R. App. P. 32(a)(6), and the typeface and style requirements of Circuit Rule 32(b) because this brief has been prepared in a proportionally spaced typeface—12-point Century font in the body of the brief and 11-point Century font in the footnotes—using Microsoft Word 2007. /s/ Eric A. Harrington Attorney for the Equal Employment Opportunity Commission Dated: April 23, 2012 CERTIFICATE OF SERVICE I hereby certify that on April 23, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. /s/ Eric A. Harrington ERIC A. HARRINGTON Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE Washington, DC 20507 (202) 663-4716 eric.harrington@eeoc.gov ********************************************************************************** <> <1> “R*” refers to the record-entry number in the district court docket sheet. <2> “Ex.” refers to the second trial’s exhibits. <3> “Tr.” refers to the second trial’s transcript. Transcript pages 65–227 are at R.230; 228– 50 at R.231; and 507–607 at R.232. <4> He had both been nominated and won the AutoZone Extra Miler award, which AutoZone characterized as a “prestigious honor,” for going “far beyond the expected.” EEOC Ex. 16, 29; Tr. 189. He also was recognized for, among other things, thwarting a shoplifting attempt and providing excellent service to a secret shopper. Tr. 184–86; EEOC Ex. 17, 28. <5> An AutoZone district manager has responsibility for about ten stores in a given area and acts as each store manager’s direct supervisor. Tr. 329–30. <6> AutoZone argues that the EEOC was collaterally estopped from litigating whether Shepherd was qualified to perform the essential functions of the job from March to September 2003. Collateral estoppel, however, may only be invoked in a subsequent suit, not the same action. See United States v. Sherman, 912 F.2d 907, 909 (7th Cir. 1990). Issue preclusion within a single action, on the other hand, is generally referred to as “direct estoppel.” See, e.g., Franzen v. Ellis Corp., 543 F.3d 420, 428 (7th Cir. 2009). For clarity, this brief will refer only to “issue preclusion” because “the traditional distinction between direct and collateral estoppel should not of itself control the answer to any particular question of issue preclusion.” 18 Wright & Miller, Federal Practice & Procedure § 4418 (April 2012). <7> Compare Mobley v. Allstate Ins. Co., 531 F.3d 539, 545 (7th Cir. 2008) (concluding that there was a triable issue of fact as to whether the plaintiff was “a qualified individual” based upon the fact that the evidence showed that she had been adequately performing the job while disabled); Wishkin v. Potter, 476 F.3d 180, 187 (3d Cir. 2007) (stating that “Wishkin had been performing the essential functions of the job for nearly twenty years” and the district court erred in accepting the employer’s characterization that Wishkin was not qualified); Banks v. Hit or Miss, Inc., 946 F. Supp. 569, 572 (N.D. Ill. 1996) (“The fact that Hit or Miss retained her services in the capacity of an assistant manager certainly allows the inference that Ms. Banks possessed the requisite skill, experience, education and other job-related requirements for the position she held.”), with Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (noting that someone who stated on a disability form that he was “unable to work” would not be a “qualified individual with a disability” unless the person could show that he could work with an accommodation). <8> See, e.g., Thompson, 625 F.3d at 410 ($250,000 in compensatory damages where a race discrimination victim presented evidence that because of the discrimination he “was concerned for his safety and that of his patients,” and that he had suffered some depression and anxiety); Naeem v. McKesson Drug Co., 444 F.3d 593, 612 (7th Cir. 2006) (affirming $240,000 award for emotional distress in a sex discrimination case where the supervisor’s sabotaged of the pregnant plaintiff’s work led to discharge); Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 566 (7th Cir. 2006) (affirming a $200,000 award—$100,000 for pain and suffering, and $100,000 for loss of dignity, humiliation, and emotional distress—in a sexual harassment and discrimination case even though “there was no extensive psychological or medical testimony presented in this case”); Deloughery, 422 F.3d at 619–21 (affirming $175,000 for emotional distress in a retaliatory failure-to-promote case); Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 714 (7th Cir. 2004) (concluding that a “jury could have reasonably concluded that awards in the range of $50,000 to $150,000 were necessary to compensate” plaintiffs in a discrimination case where evidence showed that they suffered from “continuing mental and physical ailments arising from . . . problems at work”); Lampley, 340 F.3d at 484 (affirming $75,000 award for emotional pain and suffering in a race promotion and retaliatory discharge case, even though plaintiff found a new job within two months, because there was evidence that some emotional effects continued to linger). <9> AutoZone does not argue that no rational jury could conclude that it intentionally discriminated against Shepherd. Therefore, that element is not at issue in this appeal. <10> AutoZone has conceded that the discriminators in this case were managerial agents acting within the scope of their employment. AutoZone has never claimed otherwise. Nonetheless there is sufficient evidence to support such a finding. <11> AutoZone states that “[t]here was no evidence submitted that Blackwell held an upper management position with AutoZone.” AutoZone Br. 38 ¶2. Yet AutoZone itself characterizes Craig Blackwell as a “vice president of stores” in the paragraph directly preceding the one in which it claims that there was no evidence that Blackwell held an upper management position. Id. at 38 ¶ 1. Nonetheless, the unrebutted evidence is that Blackwell was vice-president of stores. Tr. 191.