In the
United States Court of Appeals
For the Seventh Circuit

No. 96-3145

Kim Gastineau,

Plaintiff-Appellant,

v.

Fleet Mortgage Corporation,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 94 C 869--Sarah Evans Barker, Chief Judge.


Argued October 31, 1997--Decided FEBRUARY 23, 1998



      Before Flaum, Easterbrook, and Kanne, Circuit Judges.

      Kanne, Circuit Judge.  Kim Gastineau sued his
former employer Fleet Mortgage Corporation and
three of its employees for sexual discrimination
under Title VII. The district court dismissed the
individual defendants. Gastineau appeals that
decision, as well as the district court's decisions
not to admit certain evidence and not to grant
relief from the judgment. We affirm.

I.  History

      Kim Gastineau worked as a loan originator at
Fleet Mortgage Company ("Fleet") from September
1991 until Fleet terminated his employment in
November 1992. Loan originators at Fleet solicit
mortgage business and take loan applications. Loan
originators work on commission, which they receive
only when a loan closes. After taking a loan
application, loan originators hand the application
over to a loan processor who verifies the
information in the application and obtains any
needed documentation. Fleet assigned Katrina
Johnson to process Gastineau's loan applications.

      Gastineau claims that during his year at Fleet,
Johnson sexually harassed him. Gastineau claims
Johnson would frequently wear low-cut blouses and
short skirts and sit on his desk to expose her
breasts and underwear to him or put her foot in his
crotch. He also claims that she frequently called
him at home to discuss romantic or sexual matters
and would often leave him voice mails or answering
machine messages of a similar nature. Gastineau
alleged that Johnson refused to process his loan
applications unless he agreed to have sex with her.
Johnson denied ever harassing Gastineau; rather,
she asserts it was he who pursued a relationship
with her.

      Gastineau allegedly complained on several
occasions to the Indianapolis branch manager, Julie
Trimble, about Johnson's behavior. Gastineau
alleged that on November 16, 1992, Trimble called
Gastineau into her office and handed him a
memorandum (the "Trimble Memorandum") which read:

To: Dan Negele
From: Julie Trimble
Date: November 16, 1992
Re: Kim Gastineau

Was advised by Kim that Katrina continues to harass
him in the office. I know that it goes on, she
obviously has a thing for him she wont [sic] let
go. I'm tired of hearing him complain about it. I
think we should get rid of him, it's easier to hire
a new [loan originator] than find a processor right
now.

Talk to you about it on Friday.

Plaintiff's Tr. Exh. 1, Gastineau v. Fleet Mortgage
Corp., 884 F. Supp. 310 (S.D. Ind. 1994). Gastineau
alleged that he also received a copy of this
memorandum in the mail from Fleet's corporate
headquarters in January 1993. While Trimble
admitted at trial that the memorandum appears to
bear her signature, she denied ever writing it,
signing it, or seeing it before the beginning of
this litigation. She also denied that Gastineau
ever complained to her, verbally or in writing,
about sexual harassment in the office.

      Fleet's regional manager Dan Negele discharged
Gastineau over the telephone on November 20, 1992.
Gastineau allegedly told Negele during that
conversation that Johnson was harassing him. Negele
denied that Gastineau ever complained to him about
sexual harassment in the office. Furthermore,
Negele denied ever seeing the Trimble Memorandum
before the litigation, even though it was addressed
to him.

      Gastineau experienced other problems during his
employment at Fleet. In July 1992, Fleet asked all
loan originators to sign new compensation
agreements. Gastineau objected. In September 1992,
Fleet began requiring that loan originators match
refinance loans with purchase loans. Gastineau also
objected to this change.

      Gastineau talked at the office about lawsuits he
had filed against former employers. He hinted that
he might sue Fleet as well. On one occasion, he
walked out of Fleet's office announcing he was
going to see his attorney. On another occasion, he
brought a gun to work. This line of discussion and
the gun incident prompted Trimble to keep a diary
on Gastineau in case he sued Fleet.

      Gastineau did in fact sue Fleet claiming it
violated Title VII, which prohibits sexual
discrimination in the workplace. He also sued
Trimble, Negele, and Johnson individually. The
individual defendants moved to dismiss the counts
against them, and the district court granted that
motion.

      Gastineau testified that he suffered severe
emotional distress due to the sexual harassment and
his unfounded discharge. Three psychiatric experts
testified that Gastineau suffered various
psychological harms resulting from the harassment
at Fleet. However, trial testimony revealed that
Gastineau never told these experts about unsavory
events with his former employers other than Fleet
or the lawsuits against those employers.

      One of the conflicts with a former employer,
Railroadmen's Federal Savings & Loan
("Railroadmen's"), revolved around a pay dispute.
Gastineau claims that a contract between him and
Railroadmen's (the "Railroadmen's Contract")
specifies certain terms of compensation with which
Railroadmen's now refuses to comply. In fact, the
Railroadmen's agent whose signature appears at the
bottom of the contract denies making this contract
with Gastineau. He agrees that his signature
appears on the document, but he is unable to
explain how it arrived there. Fleet introduced
evidence of the Railroadmen's Contract and the
possibility that it is a fraudulent document to
show Gastineau's intent and motive of using
fraudulent documents in litigation with his
employers.

      The jury found for Fleet on all counts, and the
district court entered judgment for Fleet. Thirty-
one days later, Gastineau filed a pro se motion to
Correct Errors and to Set Aside Jury Verdict, which
the district court treated as a motion for relief
from judgment under Fed. R. Civ. P. 60(b). In this
motion, Gastineau brought to the court's attention
newly discovered evidence and allegations of
misconduct by Fleet's witnesses and counsel. The
district court denied Gastineau's motion. Gastineau
appeals to this Court.

II.  Analysis

      Gastineau raises three issues on appeal. First,
he questions the district court's decision to
dismiss the individual defendants. Second, he
argues that the court erred in admitting evidence
of his lawsuits against other employers and of the
Railroadmen's Contract. And third, he asserts that
the district court erred in denying his motion for
relief from judgment.

A.  The Individual Defendants

      Gastineau originally named as defendants Fleet,
Johnson, Trimble, and Negele. He asserted that the
individual defendants, as well as Fleet, should be
liable under Title VII as "employers" as that term
is defined in the statute. After a thorough
analysis, the district court concluded that
although the Seventh Circuit had not yet determined
whether individual employees can be liable under
Title VII, the clear trend is to interpret Title
VII not to impose liability on individual
employees. As such, the district court granted the
individual defendants' motion to dismiss for
"failure to state a claim upon which relief can be
granted." Fed. R. Civ. P. 12(b)(6).

      "We review a district court's decision to grant
a motion to dismiss under Rule 12(b)(6) de novo,
accepting the well-pleaded allegations in the
complaint as true and drawing all reasonable
inferences in favor of the plaintiff." Mallett v.
Wisconsin Div. of Vocational Rehabilitation, 130
F.3d 1245, 1248 (7th Cir. 1997). "[A] complaint [or
part of a complaint] should not be dismissed for
failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). 

      The district court concluded that Gastineau could
prove no facts making the individuals liable. The
court recognized that the covered entity under
Title VII is the "employer," defined as "a person
engaged in an industry affecting commerce . . . and
any agent of such a person." 42 U.S.C. sec.
2000e(b) (emphasis added). The district court noted
and followed the current trend in other courts to
interpret the statute not as imposing personal
liability on agents, but as invoking the doctrine
of respondeat superior to make employers
responsible for the actions of their agents. See
Gastineau, 884 F. Supp. at 313. The court correctly
anticipated our ruling on this precise issue in an
unrelated case.

      In Williams v. Banning, 72 F.3d 552 (7th Cir.
1995), a female employee sued her male supervisor
for sexual harassment under Title VII. The district
court granted the supervisor's Rule 12(b)(6)
motion. We affirmed that decision, holding that
while Title VII's definition of "employer" does
include the term "agent," Congress intended only
for employers to be liable for their agent's
actions under the traditional respondeat superior
doctrine, not for agents to be personally liable.
See id. at 554. Williams controls the case before
us, and the district court correctly dismissed the
individual defendants as not covered by Title VII.

B.  404(b) Evidence

      Gastineau filed a motion in limine requesting
that Fleet be forbidden from presenting any
evidence regarding the Railroadmen's Contract or
other lawsuits that Gastineau has brought against
his former employers. The district court denied the
motion with regard to the other lawsuits. It also
denied the motion with regard to the Railroadmen's
Contract, but provided that Fleet may be allowed to
present evidence of the Railroadmen's Contract only
if Gastineau offers into evidence the Trimble
Memorandum. Gastineau argues that the district
court erred in admitting the evidence. We review
evidentiary decisions for abuse of discretion. See
United States v. Connelly, 874 F.2d 412, 415 (7th
Cir. 1989). "Discretion, when exercised, will
rarely be disturbed." United States v. Beasley, 809
F.2d 1273, 1279 (7th Cir. 1987). 

1.  The Railroadmen's Contract

      At trial, Gastineau introduced the Trimble
Memorandum, which he suggests Trimble gave to
Negele. If authentic, it shows rather conclusively
that Fleet intended to fire Gastineau because he
was complaining of being sexually harassed. Trimble
denied writing the memorandum or seeing it before
this litigation ensued. Thus, the authenticity of
the memorandum took center stage in the case. To
show that this memorandum is fraudulent, Fleet
introduced evidence under Rule 404(b) of another
similar document that Gastineau may have
fraudulently created.

      Fleet introduced evidence of a contract which
appeared in another of Gastineau's lawsuits, the
"Railroadmen's Contract." The contract contained
employment terms very favorable to Gastineau. The
other party to the contract, John Dee, denied ever
seeing the contract before the litigation, although
he admits that his signature appears on the
document. In the Railroadmen's case, Gastineau
allegedly rediscovered the contract on the eve of
litigation. Because of the similarities in
circumstances surrounding the Railroadmen's
Contract and the Trimble Memorandum, the district
court admitted evidence of the Railroadmen's
Contract "to show motive, common scheme or plan,
intent and knowledge under Rule 404(b)." Stipulated
Order Amending Rulings on Motions in Limine,
Gastineau v. Fleet Mortgage Corp., 884 F. Supp. at
310. The court also instructed the jury not to
consider it as evidence of Gastineau's character or
his propensity to act in conformity with a trait of
character, but only to consider the evidence as to
Gastineau's credibility, motive, interest,
knowledge, common scheme and plan.

      We agree that the Railroadmen's Contract
satisfies Rule 404(b). Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .
Fed. R. Evid. 404(b). In this Circuit, evidence of
prior acts is admissible if it meets a four-part
test:

1. The evidence must be directed toward establishing
something at issue other than a party's propensity
to commit the act charged;

2. The other act must be similar enough and close
enough in time to be relevant to the matter at
issue;

3. The evidence must be such that the jury could
find the act occurred and the party in question
committed it; and

4. The prejudicial effect of the evidence must not
substantially outweigh its probative value.

See, e.g., Harris v. Davis, 874 F.2d 461, 464 (7th
Cir. 1989). As to the first part of the test,
evidence about the Railroadmen's Contract tends to
establish that Gastineau has a common scheme or
plan in disputes with his former employers--
creating false documents in anticipation of
litigation. The evidence also shows Gastineau's
motive in creating false documents as revenge
against former employers and the hope of monetary
gain. We recognize that the evidence could also
suggest the impermissible inference that Gastineau
created a false document once so he likely created
another one, but "[w]hen the same evidence has
legitimate and forbidden uses, when the
introduction is valuable yet dangerous, the
district judge has great discretion." Beasley, 809
F.2d at 1278.

      Second, the Railroadmen's Contract is indeed
quite similar temporally and otherwise to the
Trimble Memorandum. In both cases the allegedly
false document appeared on the eve of litigation;
the documents are highly damaging to the employer's
case; the putative author denies writing the
document or seeing it before, even though each
author's signature appears on the document;
Gastineau claims to have received a copy of each
document in the mail; and the documents surfaced in
discovery within a month of each other. Third, a
jury could reasonably find that Gastineau forged
the Railroadmen's Contract as well as the Trimble
Memorandum. Fleet presented sufficient evidence of
the suspicious character of each document that a
jury could reasonably believe the documents were
fraudulently created with an eye toward litigation.
And fourth, the probative value of the
Railroadmen's Contract, given the central position
of the Trimble Memorandum in the case, outweighed
the admittedly prejudicial effect. We do not
require that there be no prejudicial effect, only
that the prejudice not be unfair. And we accord the
district court great deference in this balance. See
United States v. Brooks, 125 F.3d 484, 500 (7th
Cir. 1997). It was not an abuse of discretion to
admit the evidence.

2.   The Prior Lawsuits

      Gastineau also submits that the district court
erred in denying his motion in limine and
subsequent objections to Fleet's presenting
evidence that Gastineau has sued three of his
former employers. Gastineau requested that Fleet
not be permitted to introduce evidence of three
lawsuits against former employers, one of those
being the lawsuit centered around the Railroadmen's
Contract. Gastineau argued that Fleet wanted to
introduce the evidence only to show Gastineau's
litigiousness. Fleet countered, and the district
court agreed, that the evidence tended to
establish: Trimble's motive in keeping her diary of
events surrounding Gastineau's employment;
Gastineau's vindictive state of mind regarding his
employers; and Gastineau's mental state for which
he seeks damages from Fleet and the fact that he
did not reveal these prior lawsuits to the
psychologist who examined him for the current suit.
We again review this decision for an abuse of
discretion, see Connelly, 874 F.2d at 415, and we
return to our four-part test for admissibility
under Rule 404(b), see Harris, 874 F.2d at 464.

      First, we require that the evidence tend to
establish something other than the party's
propensity to commit the act charged. The evidence
here does tend to establish something other than
Gastineau's propensity to sue his employers. It
goes to explain that Trimble kept a diary on events
surrounding Gastineau because she anticipated a
lawsuit against Fleet and perhaps herself. The
evidence also casts doubt on the credibility of
Gastineau's claim for damages based on depression
caused by the trauma he suffered at Fleet. When
Gastineau was evaluated by psychologists, he failed
to mention that he related poorly to his previous
employers as well as to Fleet. And, as we discussed
in the previous section, the evidence tends to show
Gastineau's modus operandi of creating fraudulent
documents in anticipation of litigation against his
employers.

      Keeping in mind this first requirement, that the
evidence must tend to show something other than a
plaintiff's tendency to sue, we note the Second
Circuit has addressed the propriety of admitting
404(b) evidence of other lawsuits against the
litigious or "claims minded" plaintiff. See Outley
v. City of New York, 837 F.2d 587 (2d Cir. 1988);
cf. Hemphill v. Washington Metropolitan Area
Transit Auth., 982 F.2d 572, 573 (D.C. Cir. 1993)
(per curium) (Ginsburg, J., concurring) (holding it
was error for the district court to instruct the
jury that it could consider whether plaintiff was
"claims minded" or "merely unlucky"). In Outley,
the plaintiff Outley sued the City of New York on
charges of policy brutality. The City attempted to
portray Outley as a perpetual litigant by
introducing evidence of his four other lawsuits
against the City. See Outley, 837 F.2d at 592. The
City's asserted purpose in introducing that
evidence was impeachment: the City intended to
introduce evidence from Outley's in forma pauperis
applications in the other cases as prior
inconsistent statements. However, the Second
Circuit found the City's purpose to be the one
forbidden by Rule 404(b)--showing Outley to have a
litigious character. The Second Circuit reached
this conclusion in part because of the City's
opening statement, "The plaintiff in this matter,
Willie Outley, is a perpetual litigant." Id. The
Second Circuit did not foreclose the possibility of
using evidence of prior litigation in a case where
that evidence is truly used for one of the
legitimate purposes suggested by Rule 404(b), such
as when "a party has filed a series of fraudulent
lawsuits and there is substantial evidence that the
prior lawsuits amounted to a fraudulent pattern."
Id. at 594. We think the Second Circuit would agree
with us that in Gastineau's case, Fleet has
presented legitimate reasons for wanting to
introduce evidence of prior litigation.

      As to the second part of our test, the other
lawsuits are similar enough and close enough in
time to be relevant to the current suit. Gastineau
filed two of the suits in 1990, and he filed the
suit concerning the Railroadmen's Contract in 1995.
All three suits were filed against former
employers. Although it appears that the current
suit is the only one involving a claim of sexual
harassment, all of the suits, including the current
one, involve claims that the employer failed to
comply with terms of employment. The suits are
proximate enough in time and subject matter to be
relevant.

      The third part of our test requires that the jury
must be able reasonably to find that the prior
events occurred. These prior lawsuits were
evidenced by the pleadings and by testimony--
certainly adequate for this purpose.

      Fourth, unfair prejudice must not substantially
outweigh the probative value of the prior events.
We accord the trial court exceptional deference in
this calculation. See Brooks, 125 F.3d at 500. The
trial court did not abuse its discretion in
admitting evidence of the fact of Gastineau's prior
lawsuits against other employers.

C.  Post-Trial Rulings

      After trial, Gastineau filed a pro se Motion to
Correct Errors and to Set Aside Jury Verdict, which
the court treated as a motion for relief from
judgment under Fed. R. Civ. P. 60(b). He argued in
his motion that Trimble backdated documents used in
evidence, that Trimble committed perjury, that
Fleet's counsel denied him discovery, and that he
has discovered new evidence. The district court
denied his motion because the matters he raised
were collateral, vague, and unsupported. Gastineau
makes the same arguments on appeal. We reject them.

      For the foregoing reasons we AFFIRM.