Summary
concluding that the weight of authority from other circuits indicates that labor organizations can be sued under Title VII
Summary of this case from Stelly v. DurisoOpinion
Civil Action No. H-17-2392
2019-09-18
Rhonda STELLY, Plaintiff, v. WEST GULF MARITIME ASSOCIATION, International Longshoremen's Association #1316, and International Longshoremen's Association - Local 21, Defendants.
Byron Keith Lovelace, Attorney at Law, Houston, TX, for Plaintiff. Scott Robert Breitenwischer, Kamilla Shlimak, Royston Rayzor et al, Shareen Dawn Larmond, West Gulf Maritime Assoc., Christine Rhodes Raborn, Billy Bruce Johnson, Jr., Berg Plummer Johnson & Raval, LLP, Houston, TX, Christine Lynne Stetson, Bernsen Law Firm, Beaumont, TX, for Defendants.
Byron Keith Lovelace, Attorney at Law, Houston, TX, for Plaintiff.
Scott Robert Breitenwischer, Kamilla Shlimak, Royston Rayzor et al, Shareen Dawn Larmond, West Gulf Maritime Assoc., Christine Rhodes Raborn, Billy Bruce Johnson, Jr., Berg Plummer Johnson & Raval, LLP, Houston, TX, Christine Lynne Stetson, Bernsen Law Firm, Beaumont, TX, for Defendants.
MEMORANDUM AND ORDER ON POST-TRIAL MOTIONS
EWING WERLEIN, JR., UNITED STATES DISTRICT JUDGE
Pending are Defendant International Longshoremen's Association Local 21's Rule 50(b) Motion for Judgment as a Matter of Law (Document No. 120) and Motion for New Trial and Remittitur (Document No. 121), and Defendant International Longshoremen's Association #1316's Renewed Motion for Judgment as a Matter of Law (Document No. 122) and Motion for New Trial (Document No. 123). After carefully considering the motions, responses, replies, and applicable law, the Court concludes as follows.
These motions supersede Defendants' joint Motion for Judgment as a Matter of Law (Document No. 102), which is DISMISSED as moot.
Plaintiff Rhonda Stelly went to trial on her claims that Defendants International Longshoremen's Association - Local 21 ("ILA Local 21") and International Longshoremen's Association #1316 ("ILA #1316") discriminated against her on the basis of sex by creating a hostile work environment and retaliated against her for complaining about the sexual harassment she experienced, in violation of Title VII. The Jury returned a verdict for Plaintiff, finding that both Defendants ILA Local 21 and ILA #1316 instigated or actively supported sexual harassment of Plaintiff and retaliated against her. The Jury awarded Plaintiff $5,400 in lost wages and $200,000 in punitive damages against ILA Local 21, and $600 in lost wages and $100,000 in punitive damages against ILA #1316. The Court entered Final Judgment on April 24, 2019, awarding to Plaintiff recovery of those sums.
Document No. 11 (1st Am. Compl.). Plaintiff also alleged these same claims against Defendant West Gulf Maritime Association ("WGMA"), an association of numerous shipping and stevedoring employers, and alleged a claim for intentional infliction of emotional distress against Defendant Paul Duriso. A default judgment was entered against Duriso, which judgment was severed and is now on appeal. Document Nos. 40, 59. The Court granted WGMA's motion for judgment as a matter of law and dismissed Plaintiff's claims against it after Plaintiff rested at trial. Document No. 104.
Document No. 112.
Id.
Document No. 115. The Court entered an Amended Final Judgment Nunc Pro Tunc two days later to correct a typographical error. Document No. 116.
Defendants timely renewed their motions for judgment as a matter of law and, alternatively, move for a new trial. Defendants argue that (1) hostile work environment claims are unavailable against labor unions as a matter of law, (2) Plaintiff's claims are contractually barred by the applicable sexual harassment policy, (3) the evidence does not support either Defendant's liability for subjecting Plaintiff to a hostile work environment, (4) the evidence does not support either Defendant's liability for retaliation, (5) the evidence does not support the jury's award of lost wages or punitive damages, (6) the jury's award of damages exceeds the limits imposed by 42 U.S.C. § 1981a, (7) the award of punitive damages is excessive as a matter of law, and (8) in the alternative, remittitur is appropriate.
Document Nos. 120-123.
ILA #1316 raises additional arguments regarding Plaintiff's exhaustion of administrative remedies and the excessiveness of the jury's award, which arguments the Court need not reach in light of its other rulings.
I. Motions for Judgment as a Matter of Law
A. Legal Standard
A motion for judgment as a matter of law should be granted if "there is no legally sufficient evidentiary basis for a reasonable jury to find for a party." Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004) (citing FED. R. CIV. P. 50(a) ). "A court should grant a post-judgment motion for judgment as a matter of law only when the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict." Allstate Ins. Co. v. Receivable Fin. Co., L.L.C., 501 F.3d 398, 405 (5th Cir. 2007) (internal quotations omitted). When evaluating the sufficiency of the evidence, the Court views all evidence and draws all inferences in the light most favorable to the verdict. Id.
B. Analysis
1. Availability of Title VII Hostile Work Environment Claims Against Unions
Defendants, relying on several out-of-circuit district court opinions, argue that Title VII does not subject labor organizations to liability for hostile work environments as a matter of law, such that the Court erred in submitting a question on sexual harassment to the jury. The Court overruled Defendants' objections on this point at trial, and the Jury in Questions 1 and 2 found that both Defendants "instigate[d] or actively support[ed] sexual harassment of Plaintiff Stelly that was sufficiently severe and pervasive to alter the terms and conditions of Plaintiff's employment and create a hostile or abusive work environment."
Document No. 120 at 3-5; Document No. 122 at 10-13. ILA #1316 in its brief purports to quote Judge Posner's opinion in E.E.O.C. v. Pipefitters Ass'n Local Union 597, 334 F.3d 656 (7th Cir. 2003), as saying that "[c]ourts do not impose liability on labor organizations for hostile work environment claims." Document No. 122 at 12. The Court does not find such language in that case or in any other circuit opinion of which this Court is aware. Pipefitters explained that unions and employers are not equally positioned to address harassment in the workplace and held that unions are not liable merely for failing to remedy workplace harassment. The court emphasized that a union is liable for its own discrimination and did not purport to foreclose hostile workplace claims against unions based on the unions' own actions. 334 F.3d at 658-60. The evidence of discrimination and retaliation in this case was focused on actions in the union halls, actions or inactions by the union leadership, and the union's assignments of available work.
Document No. 112 at 9.
Defendants have not shown that their liability for hostile work environment was foreclosed as a matter of law such that the Jury Instructions were in error. Although the Fifth Circuit has not expressly addressed the question, the Court's instruction to the Jury is supported by caselaw from multiple other circuits. See Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d 1093, 1102-03 (8th Cir. 2001) (explaining that "the plain language of the statute suggests that unions may be liable for any discrimination, including a claim of hostile work environment" and holding that "there is sufficient evidence in the record to allow a reasonable juror to conclude that the union authorized or encouraged the unlawful harassment" where there was evidence that a union steward participated in the harassment, others stood by silently as it occurred, and the union president exhibited discriminatory animus); Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 85 (1st Cir. 2007) (although a union has no affirmative duty under Title VII to investigate and take steps to remedy employer discrimination, "a union may be held liable under Title VII if ‘the union itself instigated or actively supported the discriminatory acts’ ") (quoting Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1076 (8th Cir. 2005) ); Anjelino v. New York Times Co., 200 F.3d 73, 95–96 (3d Cir. 1999) ("While a union may be held liable under Title VII, the record here does not demonstrate that the Union itself instigated or actively supported the discriminatory acts allegedly experienced by the appellants. Therefore, the Union is not liable."); Woods v. Graphic Commc'ns, 925 F.2d 1195, 1200 (9th Cir. 1991) ("A union may also be liable under Title VII for acquiescing in a racially discriminatory work environment."); Scott v. City of New York Dep't of Correction, 641 F. Supp. 2d 211, 225 (S.D.N.Y. 2009) ("[C]ase law equally makes clear that a union is liable under Title VII for situations in which the union is responsible for creating a hostile environment for a union member because of the member's race or sex.") (citations omitted), aff'd , 445 F. App'x 389 (2d Cir. 2011). Defendants do not dispute that employers are liable for hostile work environments but argue that differences in the statutory prohibitions on discrimination by employers and labor organizations preclude hostile work environment liability for unions. However, the text of Title VII supports a conclusion that labor unions may be liable when their own actions create a hostile work environment:
Defendants cite several district court decisions to the contrary, which the Court does not find persuasive.
(a) Employer practices
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ;
...
(c) Labor organization practices
It shall be an unlawful employment practice for a labor organization--
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin[.]
42 U.S.C. § 2000e-2 (emphasis added). Both provisions prohibit "otherwise ... discriminat[ing] against any individual ... because of his race, color, religion, sex, or national origin." The clause "with respect to his compensation, terms, conditions, or privileges of employment," which is present only in the employer subsection, narrows, rather than expands, the operative language "or otherwise to discriminate," which is the prohibited conduct. Neither Defendants nor any of the district court opinions upon which they rely explain how § 2000e-2(c)'s omission of the clause found in § 2000e-2(a) that limits proscribed discrimination to "compensation, items, conditions, or privileges of employment," can be read to narrow the scope of labor organization discrimination prohibited by the language in §§ 2000e-2(c). In fact, it appears that the statute if anything proscribes a broader range of "other discrimination" for labor organizations than for employers. In any event, the Court correctly instructed the Jury in accordance with persuasive appellate authorities that Defendants could be liable under a hostile work environment theory if the Jury found (as it did) that Defendants instigated or actively supported sexual harassment that was sufficiently severe and pervasive to alter the terms and conditions of Plaintiff's employment and create a hostile or abusive work environment.
2. Sexual Harassment Policy
Defendants argue that Plaintiff's claims are barred by what they describe as the "Sexual Harassment Policy," which Defendants maintain required Plaintiff to submit her claims to an internal review process rather than to the EEOC. Defendants do not cite to a single policy but rather to several separate documents, none of which is an executed contract that facially governed Plaintiff's rights during the relevant time period. Defendants did not authenticate these documents at trial or establish that they applied to Plaintiff's claims. Plaintiff testified that she had never before seen some of the documents on which Defendants relied at trial, that she followed the instructions she was given by union officials regarding how to report the harassment and retaliation she experienced, and that Defendants' posters warning against sexual harassment on which Defendants rely were not in fact posted until after Plaintiff had filed her EEOC charges. Accordingly, Defendants did not establish at trial that Plaintiff or the unions on her behalf clearly and unmistakably waived her right to pursue her Title VII claims. See Ibarra v. United Parcel Serv., 695 F.3d 354, 356 (5th Cir. 2012) ("The grievance process established in the CBA forms the exclusive remedy for Ibarra's Title VII claim only if the CBA clearly and unmistakably waives Ibarra's right to pursue her Title VII claim in a judicial forum.").
Document No. 120 at 22-23; Document No. 122 at 19-20.
One of these documents is a letter dated October 31, 2006--nearly a decade before the matters at issue here--from the ILA to its local unions about a complaint investigation procedure, with an attached notice. Document No. 120-11; Document No. 124 at 78 of 203. The next is a portion of an unauthenticated and unexecuted "Final Local Master Contract" dated April 3, 2013. Document No. 120-13; Document No. 124 at 84 of 203. Finally, Defendants rely on an undated and unexecuted "Memorandum of Understanding." Document No. 120-12. At trial, Defendants additionally relied on a different agreement that expressly expired in 2004, and which also was not authenticated by any witness. Tr. Vol. 1 at 93:5-12. In citing to trial testimony, the Court relies on the transcript of the two days of testimony (Vol. 1 and Vol. 2, respectively) prepared by the court reporter, portions of which have been attached by the parties as exhibits to their post-trial briefs.
Tr. Vol. 1 at 98:6-12; Tr. Vol. 2 at 150:7-151:20. Plaintiff's testimony conflicted with ILA Local 21 president Mark Bridges's testimony that posters with the sexual harassment policy have been in place at ILA Local 21 since the early 2000s. Tr. Vol. 2 at 129:7-11. The Jury was entitled to credit Plaintiff's testimony and disbelieve Bridges's testimony.
3. Sufficiency of the Evidence--Hostile Work Environment
The Jury found that each Defendant "instigate[d] or actively support[ed] sexual harassment of Plaintiff Stelly that was sufficiently severe and pervasive to alter the terms and conditions of Plaintiff's employment and create a hostile or abusive work environment." Both Defendants argue that the evidence was insufficient to support this finding.
Document No. 112 at 9.
Document No. 120 at 5-12; Document No. 122 at 3-10.
a. ILA Local 21
ILA Local 21 contends that there is no evidence that Plaintiff was subjected to sexual harassment after June 2, 2015, the date when West Gulf Maritime Association ("WGMA")--the association of shipping and stevedoring employers--suspended Paul Duriso and Donald Haggerty from the industry because of their sexual harassment of Plaintiff, or that ILA Local 21 directed or participated in any harassment of Plaintiff. Plaintiff, one of the very few women working in the heavily male-dominated longshoremen industry, testified to continued harassment by the union after those suspensions in retaliation for her role as a complaining victim of sex discrimination that led to the suspensions of Duriso and Haggerty. The Jury had evidence that Plaintiff's sex was the underlying source of the hostility and harassment she continued to experience even after the suspensions. Thus, it was after the suspensions when the anonymous letter threatening Plaintiff was distributed and posted in multiple locations at the union halls and offices of both ILA Local 21 and ILA #1316, referring to Plaintiff as "[t]his woman." Plaintiff testified that Duriso and Haggerty, although suspended by WGMA, continued to come to the union halls to intimidate and threaten her, that former ILA Local 21 president James Eli publicly advocated that Plaintiff be banned from the industry because of her having made sexual harassment claims, that other union members were openly hostile to Plaintiff and threatened her, and that ILA Local 21's leadership was aware of the harassment to which Plaintiff was being subjected and made no serious efforts to stop it. Plaintiff testified and produced evidence that ILA Local 21 opposed WGMA's recommendation that Haggerty be banned from the industry based on his sexual harassment of Plaintiff and that ILA Local 21 tried to get Plaintiff removed from the ILA Local 21 executive board. Plaintiff also testified that another longshoreman, Louis Cole, sexually harassed her in the presence of union officials, and that after she complained of the harassment, Plaintiff rather than Cole was disciplined. Furthermore, ILA Local 21 officials including its president Wayne Hanks and its business agent Jerome Williams refused to provide to Plaintiff information about a hearing that she was supposed to attend regarding her encounter with Cole and, when she appeared at the hearing, Hanks and Williams were supposed to represent Plaintiff--a member of ILA Local 21--but instead represented Cole, who was not a member of the union. In sum, the evidence adduced at trial viewed in the light most favorable to the verdict was ample for the Jury rationally to find that Plaintiff was subjected to severe and pervasive harassment on the basis of her sex after June 2, 2015 and that ILA Local 21 actively supported or instigated the harassment.
Document No. 129-3. With respect to ILA Local 21, Plaintiff testified that the threatening letter was posted "[i]n the hiring hall at Local 21 where we go in to get hired in, in the rest rooms at Local 21, in the office at Local 21, [and] on the front doors of Local 21." Tr. Vol. 1 at 35:4-8.
Tr. Vol. 1 at 20:24-21:17.
Tr. Vol. 1 at 13:15-14:22.
Tr. Vol. 2 at 9:11-21.
Tr. Vol. 2 at 37:3-8.
Tr. Vol. 1 at 40:1-42:10.
Tr. Vol. 1 at 38:24-25, 42:24-25, 44:3-16.
Tr. Vol. 1 at 45:18-22.
b. ILA #1316
Unlike the evidence against ILA Local 21, the evidence adduced at trial against ILA #1316 was scant. Plaintiff claims that the verdict against ILA #1316 for a hostile work environment is supported by evidence that (1) Duriso and Haggerty continued coming to the ILA #1316 hiring hall to intimidate and harass Plaintiff and ILA #1316 did little to remedy the harassment, (2) the anonymous threatening letter that was posted at ILA Local 21 was also posted at ILA #1316's hiring hall, and (3) ILA #1316 still permits Duriso to sign checks as a trustee. However, none of these is sufficient to subject ILA #1316 to liability for a hostile work environment.
Document No. 127 at 7-9.
Plaintiff was not a member of ILA #1316 and sought work in that union hall far less frequently than in her own ILA Local 21. Unlike inferences that were warranted from the evidence against ILA Local 21, Plaintiff offered no evidence that ILA #1316 or its leadership actively supported or instigated intimidation and sexual harassment by Duriso and/or Haggerty at its union hall.
Plaintiff testified that she complained about Duriso's harassment to Steve Holloway, ILA #1316's business agent, but she did not testify or present proof that Holloway or any other ILA #1316 officer incited, supported, encouraged, or even approved of the harassment or shared Duriso's hostility toward Plaintiff. Indeed, when copies of the anonymous threatening letter were posted in ILA #1316's hiring hall, Plaintiff testified that Holloway, unlike what happened at ILA Local 21, "took the letters down that were taped in the hall and threw them outside and told them not to bring that into the hall." Nor did Plaintiff, who never had membership in ILA #1316, present any evidence that ILA #1316's leadership ever made hostile comments about Plaintiff at ILA #1316's union meetings or events, refused to provide her with information, or otherwise impeded her ability to work. Although ILA #1316's acting president Joseph Egland testified that Duriso is still a trustee for ILA #1316 and provides a second signature on checks in that capacity, Egland also testified that Duriso is not currently receiving work referrals at ILA #1316 and that he has no authority over job referrals, the seniority list, or the selection of gang foremen. Plaintiff did not present evidence suggesting that ILA #1316's permitting Duriso to sign checks as a trustee constitutes instigation or active support of his harassing behavior, nor did she argue or present evidence that Duriso's signing of checks for ILA #1316 harms Plaintiff in any way.
Tr. Vol. 1 at 16:18-23.
Tr. Vol. 2 at 67:7-10.
Tr. Vol. 2 at 142:10-14.
Tr. Vol. 2 at 144:6-145:12.
In sum, viewing the evidence in the light most favorable to the verdict, there was no evidence adduced at trial to support a verdict by a reasonable jury that any officer of ILA #1316 instigated or actively supported harassment of Plaintiff such as to subject ILA #1316 to liability for sex discrimination based on a hostile work environment. ILA #1316 is therefore entitled to judgment as a matter of law on Plaintiff's hostile work environment claim.
4. Sufficiency of the Evidence--Retaliation
The Jury found both Defendants liable for retaliation, finding that each "took a materially adverse action against Plaintiff Stelly" and "would not have taken a materially adverse action against Plaintiff Stelly but for her charges of sexual harassment against longshoremen Duriso and Haggerty." Defendants argue that there is no evidence to support this finding.
Document No. 112 at 13, 16.
Document No. 120 at 13-17; Document No. 122 at 15-19.
a. ILA Local 21
As discussed above, the jury heard testimony that Plaintiff after she complained of sexual harassment was subjected to extensive hostility and harassment by fellow members and officers of ILA Local 21, including ILA Local 21's former president publicly advocating that Plaintiff be banned from the industry because of her sexual harassment claims; ILA Local 21's leadership witnessing but making no serious efforts to stop harassment of Plaintiff; ILA Local 21 opposing WGMA's recommendation that Haggerty be banned from the industry; ILA Local 21 trying to remove Plaintiff from its executive board; ILA Local 21 disciplining Plaintiff rather than Cole after Cole sexually harassed Plaintiff in the presence of ILA Local 21 officials; and ILA Local 21 officials including its president and business agent refusing to provide to Plaintiff information about a hearing she was supposed to attend regarding her encounter with Cole, and then representing Cole, a non-member, instead of Plaintiff at the meeting. The Jury was entitled to conclude that these acts were "materially adverse actions," that is, actions that--as the Court instructed the Jury--"would have made a reasonable member reluctant or fearful to make or support a charge of discrimination." See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (for purposes of Title VII retaliation claim, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination") (internal quotation marks and citation omitted).
Document No. 112 at 11.
Moreover, Plaintiff testified that the reason for this retaliation and harassment was that Plaintiff had complained of Duriso's and Haggerty's sexual harassment of her, which led to their suspensions from the industry by the employers' representative, WGMA. Plaintiff's inference regarding her harassers' motive is reasonable in light of the evidence and is specifically corroborated, among other evidence, by the anonymous letter referring to Plaintiff as a "nuisance" based on her involvement in "get [ting] rid of Paul Duriso," and former ILA Local 21 president James Eli's public statement at a union meeting "that since Paul Duriso and Donald Ray Haggerty wasn't allowed to work anymore, [Plaintiff] should not be allowed to have a job there anymore either. And they need to get rid of [her]." Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient to support a finding by a reasonable jury that ILA Local 21 retaliated against Plaintiff in violation of Title VII.
Document No. 129-3.
Tr. Vol. 1 at 21:9-17.
b. ILA #1316
For her retaliation claim against ILA #1316, Plaintiff relies solely on the evidence of one work assignment on one day when Ronnie Mickles, a member of ILA #1316, ordered Plaintiff to cut and twist wire used on rail pulp cars by herself, when ordinarily that job for safety reasons is performed by two workers. Mickles that day was the designated gang foreman for that job. It is doubtful that the work assignment Mickles gave that day to Plaintiff constitutes a materially adverse action within the ambit of Burlington N. & Santa Fe Ry. Co. that supports a retaliation claim under Title VII. Regardless, Plaintiff produced no evidence that Mickles was an officer of ILA #1316 whose actions are attributable to the union. Moreover, the evidence at trial established that when union members are working at the warehouse, they are under the direction of a superintendent employed by the stevedoring company, who oversees the foremen like Mickles. Accordingly, there is no evidence from which the Jury could conclude that Mickles was acting on behalf of or at the direction of ILA #1316 rather than as an agent of the stevedoring company when he instructed Plaintiff in the course of her warehouse work to cut wire by herself. The evidence at trial is simply insufficient for a reasonable jury to find that ILA #1316 engaged in an adverse retaliatory action against Plaintiff, and ILA #1316 is therefore entitled to judgment as a matter of law on Plaintiff's retaliation claim.
See Document No. 112 at 14.
Plaintiff described the assignment as dangerous in that "[a]t any given point in time the forklift operator could have hit me with the forklift, could have backed into me with the forklift and caused bodily harm to me. So I was put in an unsafe environment to work by Ronnie Mickles ...." Tr. Vol. 1 at 30:13-18.
Tr. Vol. 2 at 140:18-23. See also Tr. Vol. 2 at 106:18-22 (Court's explanation of its ruling that WGMA was entitled to judgment as a matter of law) ("When the gang leader or the foreman of the group fires someone on the property where the work is taking place, that foreman is acting as the agent of the actual shipper or the stevedore, not the union at that time.").
Because ILA #1316 is entitled to judgment as a matter of law that it is not liable on either of Plaintiff's claims, the Jury's award of back wages and punitive damages against ILA #1316 is VACATED. An amended Final Judgment will be entered that Plaintiff take nothing against ILA #1316.
In the event that this holding that ILA #1316 is entitled to judgment as a matter of law is in error and later reversed or vacated, the Court conditionally grants ILA #1316's Motion for New Trial (Document No. 123). See FED. R. CIV. P. 50(c)(1). As discussed above, no evidence was adduced at trial that ILA #1316's officers or leaders participated in, incited, supported, encouraged, or even approved of any harassment of or retaliation against Plaintiff so as to subject ILA #1316 to liability under Title VII. Accordingly, the Jury's verdict finding ILA #1316 liable for sexual harassment and retaliation was against the great weight of the evidence. The Jury's award of punitive damages was also against the great weight of the evidence because, even if liability were established, there was no evidence that ILA #1316 acted with malice or reckless indifference to Plaintiff's federally protected rights. See 42 U.S.C. § 1981a(b)(1). Accordingly, ILA #1316 is entitled to a new trial on all issues in the event that this Court's judgment for ILA #1316 as a matter of law is reversed or vacated on appeal.
The legal standard for granting a motion for new trial is set out below at page 23.
5. Sufficiency of the Evidence--Lost Wages and Punitive Damages--ILA Local 21
The Jury awarded Plaintiff $5,4 00 in lost wages against ILA Local 21. ILA Local 21 argues that the award is speculative because Plaintiff did not produce evidence of specific job opportunities for which Plaintiff was qualified and which she would have obtained based on her seniority during the period in July and August 2015 when Plaintiff was prevented from working as a result of Defendants' harassment and retaliation.
Document No. 112 at 23.
Document No. 120 at 18-19. ILA Local 21 does not challenge the Jury's finding that Plaintiff could not have reduced her damages through the exercise of due diligence in seeking, obtaining, and maintaining substantially equivalent employment. Document No. 112 at 23.
Plaintiff presented comprehensive evidence of her earnings from January 2014 through early 2018, documenting for each day she worked (1) the specific company she worked for, (2) the number of hours she worked, (3) the type of work she performed, and (4) her wages. In closing, Plaintiff's counsel urged the Jury to examine the work she performed in the months surrounding July and August 2015 and to extrapolate what she would have earned in those months if she had not been prevented from working. Under the circumstances, where Plaintiff was not salaried but presented extensive and detailed records of her earnings over several years before and after the relevant two months, such extrapolation from Plaintiff's earnings record was a reasonable method for assessing Plaintiff's lost wages. Cf. Newcomb v. Corinth Sch. Dist., No. 1:12-CV-00204-SA-DAS, 2015 WL 1505839, at *9 (N.D. Miss. Mar. 31, 2015) ("[I]n order to conform the jury's award to an amount supported by the evidence, the Court will ... extrapolate Newcomb's annual salary at CSD over the relevant time period.").
Document No. 129-9.
Defendants have not cited any authority requiring Plaintiff to collect evidence of the exact jobs that were available on each day that she missed work, the number of positions available in those jobs for which Plaintiff was qualified, and the number of other union members who lined up for work and their seniority rankings, all of which would be needed to determine with certainty which specific jobs Plaintiff would have received on each day. The evidence reflects that the method for assignments of union jobs on a given day is unique unto itself. Such evidence as Defendants fault Plaintiff for not offering likely would be impracticable if not impossible to compile, especially by Plaintiff who was not at the union hall when work was assigned due to the harassment and retaliation she was experiencing. "It is necessary that a jury's calculation of back pay be reasonable and supported by evidence presented in the record. It is not, however, necessary that the amount be exact or certain." Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993) (citing Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ); see also Pettway, 494 F.2d at 260-61 ("[I]n computing a back pay award two principles are lucid: (1) unrealistic exactitude is not required, (2) uncertainties in determining what an employee would have earned but for the discrimination, should be resolved against the discriminating employer.") (citations omitted). Under the circumstances unique to this case, the Jury's answer to Question No. 7 that $5,400 would fairly and reasonably compensate Plaintiff for her lost wages caused by ILA Local 21 is supported by sufficient evidence.
The Jury also awarded to Plaintiff punitive damages of $200,000 against ILA Local 21. ILA Local 21 argues that punitive damages are unsupported by evidence that its discriminating or retaliating members (1) acted with malice or reckless indifference to Plaintiff's rights, or violated Plaintiff's rights while (2) serving in a managerial capacity and (3) acting in the scope of employment, so as to permit a recovery of punitive damages under Title VII. However, Plaintiff correctly points out that these arguments are improperly raised in Defendant's Rule 50(b) motion because Defendant's Rule 50(a) motion for judgment made no argument that the evidence did not support an award of punitive damages. In re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) ("Since a Rule 50(b) motion is technically only a renewal of the Rule 50(a) motion for judgment as a matter of law it cannot assert a ground that was not included in the original motion.") (internal quotation marks, alterations, and citations omitted); accord, e.g. , Puga v. RCX Sols., Inc., 922 F.3d 285, 290 (5th Cir. 2019). Accordingly, Defendant ILA Local 21 has not shown itself entitled to judgment as a matter of law on Plaintiff's lost wages and punitive damages.
Document No. 112 at 25-26.
Document No. 120 at 19-22.
See Document No. 104 (Defendants' Rule 50(a)(1) motion for judgment as a matter of law filed at the close of Plaintiff's evidence).
ILA Local 21 in its reply brief cites to authority holding that where a party objects to jury instructions on punitive damages based on insufficient evidence--as Defendants did here--but fails to make that argument in its motion for judgment as a matter of law, the argument is preserved for appeal. 50-Off Stores, Inc. v. Banques Paribas (Suisse), S.A., 180 F.3d 247, 256 n.12 (5th Cir. 1999). That principle does not undermine the Fifth Circuit's clear and oft-repeated rule prohibiting the inclusion in a Rule 50(b) motion of matters that were not included in the prior Rule 50(a) motion because the Rule 50(b) motion is simply a renewal of the prior motion. Isbell Records, 774 F.3d at 867.
II. ILA Local 21's Motion for New Trial
A. Legal Standard
"The court may, on motion, grant a new trial on all or some of the issues ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." FED. R. CIV. P. 59(a)(1). "A party is entitled to a new trial when the jury verdict is against the great weight of evidence." Deloach v. Delchamps, Inc., 897 F.2d 815, 820 (5th Cir. 1990). When a jury verdict results from passion or prejudice, a new trial, not remittitur, is the proper remedy; damage awards that are merely excessive, however, are subject to remittitur. Wells v. Dall. Indep. Sch. Dist., 793 F.2d 679, 683-84 (5th Cir. 1986).
A denial of a motion for new trial is subject to review only for abuse of discretion. King v. Exxon Co., U.S.A., 618 F.2d 1111, 1115 (5th Cir. 1980). "A decision to grant a new trial is, however, accorded less deference than a decision denying the grant of a new trial." Laxton v. Gap Inc., 333 F.3d 572, 586 (5th Cir. 2003). "And where a new trial is granted on the ground that the verdict is against the weight of the evidence, we exercise particularly close scrutiny, to protect the litigants' right to a jury trial." Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982).
B. Analysis
In addition to reiterating some of its arguments addressed above, ILA Local 21 moves for a new trial or remittitur, arguing that the punitive damages award is capped by 42 U.S.C. § 1981a(b)(3) and is excessive as a matter of law.
Document No. 121.
Section 1981a(b)(1) provides that a Title VII plaintiff may recover punitive damages "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). However, § 1981a(b)(3) limits a plaintiff's recovery of punitive damages (together with certain compensatory damages not relevant here) to $50,000, $100,000, $200,000, or $300,000, depending on the number of employees a defendant has. Id. § 1981a(b)(3), In what appears to be the only case to have considered the issue, however, the Eighth Circuit declined to apply this provision to unions, noting that the number of members rather than the number of employees is the relevant measure of a union's size. Dowd, 253 F.3d at 1100 ("It makes no sense to use the numbers of employees as the criterion for damages caps in union cases, when the very question whether the statute covers a given union turns on numbers of members. Congress could make such a choice if it wished, but we are not persuaded that it has done so."). The court explained that many unions have thousands of members but fewer than 15 employees, such that application of § 1981a(b)(3) to such unions on the basis of the number of employees would preclude recovery of punitive and compensatory damages even in cases of intentional discrimination. Id. Because Title VII applies to unions if they have at least 15 members , see 42 U.S.C. § 2000e(e), the Eighth Circuit concluded that Congress did not intend for such unions to be immune from compensatory and punitive damages if they have fewer than 15 employees. Id. ("[E]very employer covered by Title VII can be liable for at least some amount of compensatory damages under 42 U.S.C. § 1981a(b)(3)(A). The union's interpretation of the statute would create the anomalous result of having a labor union liable under Title VII, but, unlike every employer covered by Title VII, exempt from any compensatory-damages liability. We do not believe it was Congress's intent to treat labor unions and employers so disparately."). ILA Local 21 cites no contrary case authority, and the Court finds Dowd persuasive.
Section 1981a(b)(3) provides in full:
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
42 U.S.C. § 1981a(b)(3).
ILA Local 21 argues that the plain language of the statute controls and that the Dowd majority's analysis was wrong. However, as the court in Dowd observed, a literal reading of the statute applies no damages cap to a union like ILA Local 21 that has fewer than 15 employees because the lowest statutory cap is for respondents with more than 14 and fewer than 101 employees. Dowd, 253 F.3d at 1100 ("We note, in addition, that if § 1981a(b) is read with absolute literalness, there would be no damages cap in this case. A union with 14 or fewer employees, but which is subject to Title VII because it has 15 or more members, is simply not among the classes of ‘respondents’ listed in the damages-cap provision."). Thus, a literal reading of the statute implies that no damages cap applies to ILA Local 21.
ILA Local 21 also argues that there is no evidence establishing how many members it has or had at any relevant time, such that "even if member number was the appropriate qualifier under 42 U.S.C. § 1981a(b)(3), Stelly failed to proffer evidence of it." However, "it is the defendant employer seeking to impose a Section 1981a(b)(3) cap on punitive damages that bears the burden of proving that it employed fewer than the requisite number of employees." Soto v. LCS Corr. Servs., Inc., No. 2:12-CV-130, 2013 WL 4012627, at *7 (S.D. Tex. Aug. 5, 2013) (collecting cases). Because ILA Local 21 presented no evidence of the number of its members, to the extent that number is relevant to the damages caps in § 1981a(b)(3), ILA Local 21 failed to meet its burden to establish that the caps apply.
Document No. 121 at 6. The only clear evidence on this issue was Plaintiff's testimony that "[I]t's not 300 people that's reported as members in Local 21 union." Tr. Vol. 1 at 8:13-14.
Finally, ILA Local 21 argues that the Jury's award of punitive damages was excessive. The evidence at trial that ILA Local 21's president and other officers, along with numerous members, participated in a course of harassment of and retaliation against Plaintiff, is sufficient to support the Jury's finding that ILA Local 21 acted with malice and reckless indifference to her federally protected rights. See 42 U.S.C. § 1981a(b)(1). An award of punitive damages is therefore supported by the evidence.
The amount of the punitive damages award, however, is excessive. The Jury found that Plaintiff lost $5,400 in wages due to ILA Local 21's harassment and retaliation. The Jury appears to have made its finding of lost wages by evaluating the evidence in the manner requested by Plaintiff, and Plaintiff presented no evidence that she incurred any additional actual losses or damages. An award of $200,000 in punitive damages, or slightly more than 37 times the amount of Plaintiff's actual damages, is excessive under the facts of this case. Although the award is not so excessive as to suggest that the verdict was the result of bias, passion, or prejudice, it does exceed the maximum amount of punitive damages that the Jury reasonably could have awarded under the circumstances. A remittitur is appropriate. See Vogler v. Blackmore, 352 F.3d 150, 156 (5th Cir. 2003) ("This Circuit employs the ‘maximum recovery’ rule when granting a remittitur. To this end, damages are reduced to the maximum amount a reasonable jury could have awarded.").
Considering the totality of the evidence presented at trial, the maximum amount of punitive damages a reasonable jury could have awarded is $55,000, or a tad more than ten times the amount of Plaintiff's actual damages. See Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 408-09 (5th Cir. 2000) (remitting $75,000 damages award in Title VII case to $25,000 when compensatory damages were only $2,500) ("On the facts of this case the ratio alone of thirty-to-one is so disproportionate as to ‘raise a suspicious judicial eyebrow,’ and require a remittitur.... As such, we remit the damages to $25,000. While we acknowledge that this remittitur leaves the award at a level ten times the compensatory damages, we note that the Supreme Court has indicated that a ratio of ten to one does not necessarily ‘jar one's constitutional sensibilities.’ Moreover, when considered as an absolute amount as opposed to a comparative ratio, we find that a $25,000 punitive damages award is reasonable given the illegal conduct by the Dean, admitted to on the record and found by the jury to constitute malicious or reckless indifference to Rubinstein's federal rights. Such an award is appropriate in this case and does not test the boundaries of the Due Process Clause.") (internal citations omitted).
Here, as in Rubinstein, an approximate ten-to-one ratio of punitive damages to lost wages does not "jar one's constitutional sensibilities." Moreover, an award of $55,000 in punitive damages takes into account the harm Plaintiff suffered, but also takes into account that Defendant is only a local union composed of members who are hourly employees in the longshoremen industry, which local union was not proven to have substantial financial resources. Viewing the record as a whole, including the Jury's evident decision to punish ILA Local 21 for its malice or reckless indifference to Plaintiff's federally protected rights and to deter ILA Local 21 and others from similar wrongful conduct in the future, and also taking into account appropriate proportionate factors to reflect a reasonable relationship to Plaintiff's actual damages, the "maximum recovery" rule warrants a remittitur of the punitive damages award in excess of $55,000.
The number of members in ILA Local 21 was not proven at trial, nor was its financial condition. Plaintiff testified that there were not as many as 300 members. The number of active members was also not proven, but only 46 members attended the September 4, 2015 special meeting called by then-President Bridges to vote on the highly controversial question of whether ILA Local 21 should appeal to arbitration to seek reversals of the industry's suspensions of Duriso and Haggerty. The vote to appeal failed 25 to 18, with three abstentions.
Accordingly, the Court denies ILA Local 21's motion for a new trial but on condition that Plaintiff accept a remittitur of the punitive damages award in excess of $55,000. Within 14 days after the date of this Order, Plaintiff shall file a written response advising the Court whether she accepts the suggested remittitur. If she does, the Court will enter an amended judgment in favor of Plaintiff against ILA Local 21 in the amount of $60,400 ($5,400 in lost wages plus $55,000 in punitive damages), together with post-judgment interest. If she does not, the Court will vacate the judgment and order a new trial on the issue of punitive damages against ILA Local 21.
III. Order
Accordingly, for the foregoing reasons, it is
ORDERED that ILA Local 21's Rule 50(b) Motion for Judgment as a Matter of Law (Document No. 120) is DENIED, its Motion for New Trial and Remittitur (Document No. 121) is GRANTED in part and, within 14 days after the date of this Order, Plaintiff shall file a written response advising the Court whether she accepts a remittitur to reduce the punitive damages award to $55,000. If she elects not to accept the remittitur of punitive damages as suggested, then the Court CONDITIONALLY GRANTS a new trial on Plaintiff Rhonda Stelly's claim for punitive damages against ILA Local 21. It is further
ORDERED that ILA #1316's Renewed Motion for Judgment as a Matter of Law (Document No. 122) is GRANTED, and Plaintiff Rhonda Stelly shall take nothing against ILA #1316; and if the Court's grant of ILA #1316's foregoing motion is in error and later reversed or vacated, then the Court CONDITIONALLY GRANTS ILA #1316's Motion for New Trial (Document No. 123) on all claims made by Plaintiff Rhonda Stelly.
An amended Final Judgment will be signed and entered after Plaintiff files her response on the suggestion of remittitur.
The Clerk will enter this Order, providing a correct copy to all parties of record.