Avitia v. Metropolitan Club of Chicago, Inc.

• Decision Date: 01 March 1995
• Docket Number: Nos. 94-1356,94-1423,94-1586,s. 94-1356
• Citation: 49 F.3d 1219
• Parties: , 129 Lab.Cas. P 33,215, 30 Fed.R.Serv.3d 1542, 2 Wage & Hour Cas.2d (BNA) 993 Alfonso AVITIA, Plaintiff-Appellee, Cross-Appellant, and Diane Larsen, Plaintiff-Appellee, v. METROPOLITAN CLUB OF CHICAGO, INCORPORATED, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1219

49 F.3d 1219

63 USLW 2592, 129 Lab.Cas. P 33,215,

30 Fed.R.Serv.3d 1542,

2 Wage & Hour Cas.2d (BNA) 993

Alfonso AVITIA, Plaintiff-Appellee, Cross-Appellant, and Diane Larsen, Plaintiff-Appellee, v. METROPOLITAN CLUB OF CHICAGO, INCORPORATED,

Defendant-Appellant, Cross-Appellee.

Nos. 94-1356, 94-1423, 94-1586.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 1, 1994.

Decided March 1, 1995.

Ernest T. Rossiello (argued), Margaret A. Zuleger, Rossiello & Associates, Chicago, IL, for Alfonso Avitia, Diane Larsen.

Andrew J. Fisher, Rudnick & Wolfe, James S. Gordon, Edward Slovick, Don E. Glickman (argued), Gordon & Glickman, Chicago, IL, for Metropolitan Club of Chicago, Inc.

Before POSNER, Chief Judge, and BRIGHT ^* and KANNE, Circuit Judges.

POSNER, Chief Judge.

Waiters at the Metropolitan Club in Chicago sued the Club. They claimed, first, that they had been denied overtime wages to which the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq., entitled them and, second, that one of their number, Alfonso Avitia, had been fired, in violation of the Act's prohibition against retaliation, 29 U.S.C. Sec. 215(a)(3), for asserting his right to overtime wages. A jury returned a verdict (upon which the district judge entered judgment) for six of the plaintiffs, including Avitia. The Club appeals from the judgment for Avitia and one other plaintiff, Diane Larsen, and Avitia cross-appeals from the district judge's refusal to order the Club to reinstate him. An earlier phase of the litigation is reported at 924 F.2d 689 (7th Cir.1991).

The only issue concerning plaintiff Larsen is a narrow one, and let us get it out of the way first. The Fair Labor Standards Act directs the award of liquidated damages in an amount equal to the plaintiff's actual damages (in other words, the plaintiff receives double damages), 29 U.S.C. Sec. 216(b), except that the district judge can in his discretion excuse the defendant from paying liquidated damages if he finds that the defendant was acting in good faith and reasonably believed its conduct was lawful when it violated the Act. 29 U.S.C. Sec. 260. Judge Norgle did not abuse his discretion in declining to exercise forgiveness in this case. Fowler v. Land Management Groupe, Inc., 978 F.2d 158, 163 (4th Cir.1992). The Metropolitan Club had a history of violating the Act. This was enough all by itself to justify him in refusing to exercise on the Club's behalf an avowedly discretionary judicial power of mercy for violators. Double damages are the norm, single the exception. Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir.1986). We need not decide whether it would ever be an abuse of discretion to deny a plea of mercy by a violator of the FLSA; it is enough that a recidivist is not entitled to mercy. Indeed it could be argued--how compellingly we also need not decide--that a judge would be abusing his discretion to exercise it in favor of a recidivist. Cf. Thomas v. Howard University Hospital, 39 F.3d 370, 373 (D.C.Cir.1994).

The remaining issues concern Avitia. The Club argues that there was insufficient evidence that it fired Avitia in retaliation for his having claimed overtime, that the district judge committed numerous errors at trial, and that Avitia's damages are inflated. The first argument has no merit at all. When we construe the evidence as favorably to Avitia as the record permits, as we must do when evaluating a motion for judgment as a matter of law, there plainly is enough to support the jury's verdict. Avitia had been employed by the Metropolitan Club for thirteen years, the last eleven of these as a banquet captain. He had received no disciplinary sanction or warning in the last twelve of the thirteen years when in March of 1988, in the course of an audit of the Club by the Department of Labor, he told the auditor that he had worked overtime and had not been paid for his overtime work at the statutory rate of one and one-half times his regular wage. Just hours before the audit, Avitia's supervisor had told him that Avitia owed a lot to the Club and that the Club's general manager "would be very upset with anyone who was claiming overtime." Right after the audit the supervisor began behaving coldly toward Avitia. Within a few weeks Avitia began receiving disciplinary write-ups for such delicts--all of which he denied--as serving cake on cardboard rather than on silver or crystal platters. He was given a three-day suspension but ordered to work anyway. In July, four months after the audit, he was fired. The Club presented testimony that the delicts really had occurred and had been serious, that Avitia had a bad personality, and that the timing of his firing in relation to the audit was adventitious. But the jury was entitled to disbelieve the Club's witnesses.

As a reminder to future appellants, we point out that a statement of facts which, as the Club's does, treats contested testimony of the losing party's witnesses as "facts" violates 7th Cir.R. 28(d)(1). We have not yet stricken a brief for a violation of this rule, Harris v. DeRobertis, 932 F.2d 619, 624 n. 2 (7th Cir.1991), but let this opinion be a warning that we have the power, and may one day have the inclination, to do so. Cf. Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1392 n. 4 (7th Cir.1990); Derrickson v. City of Danville, 845 F.2d 715, 719-20 (7th Cir.1988); Westinghouse Electric Corp. v. NLRB, 809 F.2d 419, 424-25 (7th Cir.1987). We are not sticklers, precisians, nitpickers, or sadists. But in an era of swollen appellate dockets, courts are entitled to insist on meticulous compliance with rules sensibly designed to make appellate briefs as valuable an aid to the decisional process as they can be. A misleading statement of facts increases the opponent's work, our work, and the risk of error.

We turn to the rulings at trial that the Club contends were erroneous. First in time is the district judge's refusal to sever the trials of the nine plaintiffs. Several of the plaintiffs alleged violations just of the overtime provisions of the Act; several alleged violations of just the retaliation provision; several alleged both sorts of violation. The Club argues that the cases of the plaintiffs who were charging retaliation should have been tried separately from the cases of the plaintiffs who were complaining only about being denied overtime pay, because the jury, knowing that the Club was being accused of varied and prolific violations of the Fair Labor Standards Act, would be prejudiced against the Club when the time came to decide the retaliation cases. Harmed, no doubt; but "prejudiced," implying the sort of harm of which a litigant is entitled to complain? We think not. The overtime violations were essential background to the claim of retaliation by Avitia and others, and so would have come into evidence--and properly so--even if his case had been tried by itself. And against the so-called prejudice must be weighed the cost to the parties and the judicial system of having to conduct two or more trials instead of one, each of which would have involved substantial duplication of the other or others.

This process of weighing gains against losses when both are imponderable is, in the nature of things, committed to the discretion of the district judge. Fed.R.Civ.P. 20(b). We know this not only from the rule itself, but also from cases involving the severance of plaintiffs from class actions, Duke v. Uniroyal, Inc., 928 F.2d 1413, 1420-21 (4th Cir.1991); Davis v. Mason County, 927 F.2d 1473, 1479-80 (9th Cir.1991); Jolley v. Welch, 904 F.2d 988, 994 (5th Cir.1990); Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988), as well as from the innumerable cases upholding the denial of motions by criminal defendants to be tried separately. Zafiro v. United States, --- U.S. ----, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); McLaughlin v. State Farm Mutual Automobile Ins. Co., 30 F.3d 861, 870 (7th Cir.1994); United States v. Bond, 847 F.2d 1233, 1240 (7th Cir.1988); United States v. Shively, 715 F.2d 260, 267 (7th Cir.1983). We have no basis for thinking that Judge Norgle abused his discretion. The fact that the jury brought in verdicts against three of the plaintiffs who charged the Club with retaliation tends to vindicate his decision not to sever.

The judge refused to declare a mistrial when, during a break right after the jury had been impaneled, one of the plaintiffs approached a juror and reminded him that the two had known each other in high school. After questioning this juror and satisfying himself that the juror could render an impartial verdict despite the contact with the plaintiff--for the juror and the plaintiff had been slight acquaintances rather than friends--the judge denied the Club's motion for a mistrial. The misbehaving plaintiff, perhaps distressed by the judge's rebukes, absented himself from the trial and his case was dismissed shortly after the trial began, so his juror classmate never did have his impartiality tested. This sequel, like the previous one, vindicated another discretionary judgment that we review with a light hand. The question whether to declare a mistrial because of improper contacts with a juror, like the question whether to sever the trial of a case involving multiple parties, is judgmental and managerial in nature rather than "logical." It does not lend itself to governance by general rules uniformly applied, and is best answered by the front-line judge, who has a better experiential basis than we for assessing the effect of a joint trial or an improper jury contact on the course and outcome of the trial. Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1142-43 (7th Cir.1992); Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir.1991).

The Club has two complaints about the instructions to the jury. The first is that the judge should not have instructed the jury that "in determining...