Burger, Robert M. v. Int'l Union Elev 2 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3061, 06-3164, & 06-4155
ROBERT M. BURGER,
Plaintiff / Appellee / Cross-Appellant,
v.
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS LOCAL NO. 2,
Defendant / Appellant / Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 8068—Virginia M. Kendall, Judge.
____________
ARGUED MAY 31, 2007—DECIDED AUGUST 22, 2007
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Robert M. Burger was a member
of the International Union of Elevator Constructors, Local
No. 2. He sued the union after he was expelled from it,
alleging injuries under both the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., and the Labor
Management Relations Act, 29 U.S.C. § 141 et seq. A jury
returned a verdict in favor of Burger on both counts, and
the district court entered judgment on the jury’s verdict.
The district court later entered a separate judgment
awarding Burger attorney’s fees and costs. Both parties
2 Nos. 06-3061, 06-3164, & 06-4155
appeal the judgment on the verdict, and the union appeals
the award of fees and costs. We affirm in part, reverse
in part, and remand for further proceedings.
I. HISTORY
Burger was an elevator mechanic. He worked in that
field from 1987 until the events that led to this lawsuit.
During the majority of that time, he was a member of
International Union of Elevator Constructors, Local No. 2
(“the union”), holding the position of “helper.” In 2002, the
union negotiated a new master agreement with the
employers who hire the union’s members. The new agree-
ment implemented an apprenticeship program and set
priorities for which categories of union members would be
fired first. In 2003, Burger was fired from his job. He
brought charges with the EEOC, alleging that the appren-
ticeship program and the firing priorities amounted to
age discrimination. Throughout 2003, Burger applied for
reduced-fee union cards due to his lack of employment and
he continued to lodge complaints with the EEOC and the
NLRB about the union’s policies. The union gave him a
reduced-fee union card on April 1. When he asked for a
second reduced-fee card the following quarter, the union
secretary told him that he had to sign the “out-of-work”
book before receiving that card. Burger refused, but the
union gave him a reduced-fee card anyway.
In July 2003, as Burger continued to file charges with
the NLRB regarding the union’s use of members’ dues and
the union’s diligence in representing the interests of the
members, his complaints were the topic of discussion at
the union’s meeting. Testimony at trial indicated that at
least one high-ranking member of the union might have
indicated that the union would “go after” or otherwise
punish Burger for his complaints. The next time that
Burger came due for a union card, he requested a reduced-
Nos. 06-3061, 06-3164, & 06-4155 3
fee card and was denied it. The secretary repeated that he
must sign the out-of-work book, but the union was (and is)
unable to provide evidence that any such policy existed
before it was applied to Burger. In fact, testimony at trial
suggested that no other union member had ever been
denied a reduced-fee card for failing to sign the out-of-
work book. Nevertheless, the union denied Burger a
reduced-fee card. Without the union card, he was unable
to find much work.
Burger filed administrative charges with the Illinois
state authorities and the EEOC, and he received a right
to sue letter in 2003. He filed a five-count complaint
against the union and other defendants. The counts
against the other defendants have been dismissed over the
course of the litigation. His allegations against the union
were two-fold: that it had retaliated against him for his
age discrimination complaints to the EEOC and NLRB
by denying him a reduced-fee card (effectively prevent-
ing him from finding work) and that the union had
breached its duty of fair representation in violation of the
Labor Management Relations Act by denying him his card.
The case went to trial. After Burger had presented his
case, the union moved for judgment as a matter of law.
FED. R. CIV. P. 50(a). The district court denied the motion.
The jury returned a verdict in favor of Burger on both
counts against the union. The union renewed its motion for
judgment as a matter of law. FED. R. CIV. P. 50(b). The
district court denied that motion as well.
The district court entered judgment on the verdict.
However, the parties and the district court had some
difficulty in reconciling the jury’s award of damages. The
district court reduced the jury’s award of damages in
order to avoid the possibility of a duplicative recovery for
lost back wages. The district court then doubled the back
pay award as liquidated damages under the ADEA. See 29
4 Nos. 06-3061, 06-3164, & 06-4155
U.S.C. § 626(b) (“[L]iquidated damages shall be payable
only in cases of willful violations of this chapter.”); Rose v.
Hearst Magazines Div., The Hearst Corp., 814 F.2d 491,
493 (7th Cir. 1987) (holding that a jury verdict finding
ADEA retaliation is inconsistent with a finding of non-
willful discrimination). Finally, the district court awarded
attorney’s fees and costs to Burger.
The union argues on appeal that neither the verdict nor
the damage award was supported by the evidence. The
union also argues that the damage award gives Burger a
double recovery for the same injury, and that the dis-
trict court erred in the way that it doubled the back pay.
Burger also appeals the damages award, arguing that
the award should not have been reduced by the district
court. Finally, the union appeals the award of attorney’s
fees and costs in the event that we reverse the entry of the
judgment.
II. ANALYSIS
We can dispense with much of the substance of this
appeal relatively quickly. The union seeks to overturn a
jury verdict by arguing that the evidence was insufficient
to support the jury’s verdict. “We review de novo the
district court’s decision to deny [a] motion for judgment as
a matter of law.” Filipovich v. K & R Express Sys., Inc.,
391 F.3d 859, 863 (7th Cir. 2004). “Our job is to assure
that the jury had a legally sufficient evidentiary basis
for its verdict.” Id.
On the question of retaliation and failure to represent,
the union only challenges whether Burger had shown a
causal link between his protected activity and the union’s
denial of his reduced-fee card. It argues that if he had
only signed the out-of-work book, he would have received
his card and been able to work. But Burger provided
Nos. 06-3061, 06-3164, & 06-4155 5
evidence that no other union member had ever been
required to sign the book and that the alleged rule requir-
ing him to do so was not contained in any rule, constitu-
tion, or by-law of the union. Of course the union is permit-
ted wide latitude in making internal regulations such as
this, but Burger’s argument was that the issue of signing
the out-of-work book was simply a pretext that the union
was using to disguise its retaliation for his complaints to
the EEOC and NLRB. He provided evidence that as he
lodged more and more external complaints about the
union, the leadership voiced an intent to penalize him
for his activities. He provided evidence that throughout
2003 union executives made it clear to him that they
knew that he was making those complaints and that they
did not approve. His evidence showed that despite allow-
ing him to have a reduced-fee card in April and July
without signing the book, that he was denied the reduced-
fee card at the next opportunity after the union officials
stated publicly at a union meeting that they were consider-
ing “going after” him for his complaints. In the end, the
jury had sufficient evidence before it to allow a reasonable
inference that the union denied him his reduced-fee card
in retaliation for his complaints, not for failing to sign the
out-of-work book. Of course, the union officials testified
that they had no retaliatory motive. But where, as here, a
jury was faced with weighing the credibility of witnesses,
“neither side is entitled to judgment as a matter of law
unless objective evidence shows that it would be unreason-
able to believe a critical witness for one side.” Payne v.
Milwaukee County, 146 F.3d 430, 433 (7th Cir. 1998)
(quoting Kasper v. Saint Mary of Nazareth Hosp., 135 F.3d
1170, 1173 (7th Cir. 1998)). The jury apparently believed
Burger’s version of events. The district court was correct
to deny the union’s motion for judgment as a matter of
law.
6 Nos. 06-3061, 06-3164, & 06-4155
The union makes a short argument that, in the event
that we reverse the district court’s denial of judgment as
a matter of law, the award of fees and costs should be
reversed also. Because we affirm the judgment of the
district court, this argument fails as well. Given that the
union does not challenge the validity or the amount of the
attorney’s fees awarded by the district court, we affirm the
judgment of the district court on the separate question
of fees and costs.
We turn then to the question of damages. The parties
both agreed at oral argument that they will never again
use the same verdict form that they came up with for this
case. The form provided the jury the opportunity to
indicate whether they found for the plaintiff or defendant
on both of the counts, and it provided a place under each
count for the jury to make an award of damages. Each
count had lines for damages in compensation for back pay,
for lost future earnings, and for mental and emotional pain
and suffering.1 On count one, the ADEA retaliation claim,
the jury awarded $25,000 in back pay, $6,000 in lost future
wages, and $2,000 for mental and emotional pain and
suffering. In the lines on count two, the LMRA failure to
represent claim, the jury filled in numbers that were
exactly double the amounts listed in the lines for count
one: $50,000, $12,000 and $4,000, respectively.
This presents a problem, as the district court and the
parties soon realized. The parties agreed ahead of time
that there could be only one amount of damages for lost
back wages. See Collins v. Kibort, 143 F.3d 331, 339-40
(7th Cir. 1998) (remanding for new trial on damages given
the possibility that back wages were impermissibly
awarded twice for two separate legal theories of liability).
1
A copy of the verdict form returned in the case is attached to
this opinion.
Nos. 06-3061, 06-3164, & 06-4155 7
The damages for lost back pay would be the same regard-
less of whether he prevailed on count one, count two, or
both counts, because the lost wages all stemmed from
losing his union card, regardless of whether he lost it for
retaliation for his age discrimination complaint or for the
union’s failure to represent his interests. Burger sug-
gests that they had provided separate lines under both
counts so that the jury could make that award if it found
in Burger’s favor on either one count or the other, but
not both.
It seems from the transcripts that the parties had an
inkling that the form would confuse the jury. Burger’s
attorney attempted to clarify the form during closing
argument: “[U]nder each count, you’re going to be asked
the same questions about damages. And because each
count is based on the same harm, which is the loss of his
reduced card, your answer should be the same.” Tr. at 392.
And then later: “In these two different counts . . . it’s the
same injury, so it should be the same amount on count 1 as
you determine in count 2.” Tr. at 417. Unfortunately, the
jury did not put the same amount on count one as they
did on count two.
The jury form and the numbers that the jury placed in
those two lines could mean one of three different things.
They could have found that Burger lost $75,000 in back
wages, which they then attempted to allocate between the
two counts by placing $25,000 under count one and
$50,000 under count two. The fact that the damages for
count two were exactly twice the damages on count one
across the board lends some credence to this theory. Or
they could have found that Burger lost a total of $50,000
in back pay, which they allocated $25,000 to count one and
$25,000 to count two, but faced with a verdict form that
did not have a line for total lost wages, they simply placed
the total of $50,000 in the line under count two. Or they
might have found that he lost a total of $25,000 in back
8 Nos. 06-3061, 06-3164, & 06-4155
pay. But this third option seems particularly unlikely
given that it does nothing to explain how $50,000 ended up
on the line in count two.
So in all likelihood it seems that the jury either awarded
$75,000 in back pay, split disproportionately in favor of
count two, or the jury awarded $50,000 divided equally.
Both results contradicted the theory of damages that
Burger attempted to convey to the jury. And more signifi-
cantly, both awards would be inconsistent with the fact
that all back wages in this case had to have stemmed from
the same injury, regardless of the legal theory under
which the damages were sought. Because neither inter-
pretation of the jury’s verdict can be squared with the
requirement that Burger’s lost wages must be the same
regardless of whether liability exists under count one,
count two, or both counts, we must regrettably remand the
case for a new trial on damages only. The lost wages can
only be recovered once, but because the jury found in favor
of Burger on the retaliation count, the total back wages
will be subject to doubling by the district court on remand
under 29 U.S.C. § 626(b) as liquidated damages for will-
ful discrimination.
The union has raised the argument in this appeal that
the damages awarded by the jury are, at any rate, incon-
sistent with the evidence. The union believes that the most
that the jury could have awarded would have been the
difference between the cost of a reduced-fee card and the
cost of a full-fee card. By this theory, Burger had an
obligation to mitigate his losses by paying the full amount
for a union card. If he had paid the full fee, the argument
goes, he would have been able to work and would not have
lost any wages. But this ignores two arguments that
Burger made to the jury. He presented evidence that he
could not afford to pay the full-fee card because he was
out of work and had to borrow money just to get the
reduced-fee card. He also presented evidence that could
Nos. 06-3061, 06-3164, & 06-4155 9
have allowed the jury to infer that the union was simply
using the reduced-fee versus full-fee controversy as a
pretext for its ultimate goal: forcing Burger out of the
union. The jury’s verdict, and the original award of
damages, is consistent with the belief that one or the other
(or both) of these theories was correct, so an award of
damages above the cost of the full-fee card is not incon-
sistent with the evidence, and remains among the range
of possible recoveries on remand.
III. CONCLUSION
Accordingly, the judgment of the district court with
respect to attorney’s fees and costs is AFFIRMED. The
judgment of the district court entered on the jury’s verdict
is AFFIRMED in part and REVERSED in part, and the case is
REMANDED for further proceedings consistent with this
opinion.
10 Nos. 06-3061, 06-3164 & 06-4155
Nos. 06-3061, 06-3164 & 06-4155 11
12 Nos. 06-3061, 06-3164 & 06-4155
Nos. 06-3061, 06-3164, & 06-4155 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-07