Sweeney v. Westvaco Co.

• Decision Date: 08 November 1990
• Docket Number: 90-1258,Nos. 90-1178,s. 90-1178
• Citation: 926 F.2d 29
• Parties: 136 L.R.R.M. (BNA) 2561, 59 USLW 2559, 118 Lab.Cas. P 10,566, 19 Fed.R.Serv.3d 351, 6 Indiv.Empl.Rts.Cas. 289 Dolores SWEENEY, Plaintiff, Appellant, v. WESTVACO COMPANY, et al., Defendants, Appellees. Dolores SWEENEY, Plaintiff, Appellee, v. WESTVACO COMPANY, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 29

926 F.2d 29

136 L.R.R.M. (BNA) 2561, 59 USLW 2559,

118 Lab.Cas. P 10,566,

19 Fed.R.Serv.3d 351,

6 Indiv.Empl.Rts.Cas. 289

Dolores SWEENEY, Plaintiff, Appellant, v. WESTVACO COMPANY, et al., Defendants, Appellees.

Dolores SWEENEY, Plaintiff, Appellee, v. WESTVACO COMPANY, et al., Defendants, Appellants.

Nos. 90-1178, 90-1258.

United States Court of Appeals First Circuit.

Heard Nov. 8, 1990.

Decided Feb. 12, 1991.

Charles M. Burnim with whom William Y. Christie, was on brief, for plaintiff, appellant.

Jeffrey F. Jones with whom Maxwell L. Stearns and Palmer & Dodge, were on brief, for defendants, appellees.

Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE, ^* Senior District Judge.

BREYER, Chief Judge.

The appeals in this diversity action arise out of Dolores Sweeney's claim that the defendants negligently caused her husband serious emotional suffering. The appeals focus upon two defenses. The first is that Sec. 301(a) of the Labor Management Relations Act, 29 U.S.C. Sec. 185(a), pre-empts (and thereby forecloses) the kind of state-law tort suit that defendant Westvaco says is before us, namely a claim that an employer negligently caused an employee's emotional suffering through conduct arguably falling within the scope of a collective bargaining agreement. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988). The second is that we lack jurisdiction to hear these appeals because the plaintiff and one of the individual defendants are both citizens of Massachusetts hence, a prerequisite for diversity of jurisdiction, namely, complete diversity of citizenship between the parties, is missing. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch.) 267, 2 L.Ed. 435 (1806).

Defendant Westvaco raised both these claims at the eleventh hour. It specifically made its pre-emption argument for the first time only after the jury returned a $1.5 million verdict for the plaintiff. It pointed to the jurisdictional flaw for the first time only after appeal to this court. We believe that, in this case, timing is all and that Westvaco made its arguments too late in the day to prevail.

Westvaco's pre-emption claim falls afoul of the rule that, where possible, a party must raise an argument before the jury retires instead of waiting until after it has seen the verdict. The Magistrate (who tried this case with the parties' consent, see 28 U.S.C. Sec. 636(c)), thought this normal rule inapplicable because he thought the pre-emption argument was "jurisdictional," and could not be "waived." See International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 391, 106 S.Ct. 1904, 1912, 90 L.Ed.2d 389 (1986). He listened to the argument, agreed with Westvaco, and set aside the jury's verdict. For rather complicated reasons that we shall explain, we disagree with the Magistrate about waiver.

Westvaco is, of course, free to point to a lack of diversity jurisdiction at any time. But the eleventh-hour nature of that claim leads us to grant the plaintiff's motion to dismiss the nondiverse defendant from the case, thereby restoring the court's jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 2225-26, 104 L.Ed.2d 893 (1989).

We have considered, and we reject, Westvaco's remaining arguments. Consequently, we order the jury's verdict for the plaintiff reinstated.

I Preliminary Matters Facts

In October 1984 George Sweeney suffered a nervous breakdown. Dolores Sweeney, his wife, believed that Westvaco and three of its supervisory employees negligently caused that breakdown. She sued them for loss of consortium. The jury awarded her $1.5 million. The underlying facts, as the jury might have found them, include the following:

1. George Sweeney worked more than twenty-nine years for Westvaco, an envelope manufacturer. He rose to the position of head adjuster, responsible for several envelope-making machines.

2. George Sweeney had overcome a background of adversity (birth defects, deafness in childhood, loss of a parent), to become, in his adulthood, a conscientious, kind, and dedicated employee, liked and respected by his coworkers. He was happily married; he had no children. His work, in a sense, was his life.

3. In mid-1983, Westvaco began to implement a new policy mandating overtime when too few employees volunteered. George Sweeney began to worry about working overtime too soon after his regular eight-hour shift. He had lost four fingers in an industrial accident; he also had back problems. He feared that operating machinery after an eight-hour day would put too much strain on his back. He had often worked overtime voluntarily, however, and he was willing to work overtime on weekends, after he had a night to rest his back.

4. During Christmas week of 1983, George Sweeney refused to work overtime on several occasions. On December 28, 1983, his superior, Louis Ronzoni, gave George a verbal warning (later reduced to writing). George saw this action as a step that could lead to dismissal. He worried that he might lose his job.

5. During the course of the next few months, perhaps because George would not work regular overtime, perhaps because Mrs. Sweeney (successfully) appealed to higher management to honor George's medical excuse, Ronzoni, along with other supervisors, harassed taunted, and humiliated George.

a. Richard Laffargue gave George the impression that he would not accept a doctor's certification that George could not work overtime except on weekends;

b. Laffargue told George to demonstrate, in front of his assembled coworkers, just how his lack of fingers put added strain on his back--an order that George took as an effort deliberately to humiliate him;

c. Lorenzo Sanchez and other supervisors taunted George for not being able fully to carry out his work responsibilities;

d. After Mrs. Sweeney appealed to management (over their heads), George's supervisors assigned particularly slow workers to work under George and put him in charge of machines particularly likely to break down;

e. Ronzoni and the other supervisors planned to demote George to work in the tool crib--a low-level job with no responsibilities other than handing out tools to other employees;

f. Ronzoni told George about his demotion by calling him into his office, and saying "You're all done," implying thereby that George had been fired, and then leaving George several minutes to think about this before explaining that George had, in fact, been demoted, not fired.

Although a simple summary description of these incidents may make any one of them seem to amount to no more than tactless behavior, in context, the evidence permitted the jury to find behavior of unusual callousness or cruelty.

6. George subsequently had a serious emotional breakdown. He cannot work or maintain ordinary human relationships. His wife has become, in effect, a caretaker (as one expert witness testified), like a wife with a husband who has Alzheimer's disease.

Procedural Background

Dolores Sweeney, a citizen of Massachusetts, originally brought this lawsuit in Massachusetts Superior Court against Westvaco alone. She charged that Westvaco negligently or intentionally caused her husband emotional suffering. She sought damages for her own loss of consortium. (At the time, Massachusetts law allowed such a suit. See Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980) (workers compensation statute does not bar an employee's spouse from suing the employer for loss of consortium due to injury to the employee).) Westvaco, a citizen of another state, removed the suit to federal court. In federal court, Dolores Sweeney added as defendants several of George's supervisors, one of whom (Ronzoni) now turns out to be a resident of Massachusetts.

As previously mentioned, the case proceeded to trial; the jury found in plaintiff's favor; Westvaco, making several arguments, including pre-emption, asked for a judgment notwithstanding the verdict; and the Magistrate accepted Westvaco's pre-emption argument (while rejecting the others). The Magistrate, on grounds of pre-emption alone, set aside the jury's verdict and entered judgment for the defendants. Both sides have appealed.

II Trial-Related Errors

For purposes of exposition, we find it easiest to consider at the outset Westvaco's claims that it should win (i.e., that the jury's verdict should have been set aside) even if it does not prevail on its pre-emption argument. Westvaco renews in this court three such claims of trial-related error. The Magistrate rejected each of these claims. And, we agree with the Magistrate that they have little merit.

First, Westvaco says that the Magistrate wrongly refused to submit to the jury a proposed instruction that reads as follows:

If the conduct of defendants ... toward George Sweeney was in accordance with the terms of the collective bargaining agreement between the Company and the Union, or in accordance with the Provisions of the Guidelines for Filling Overtime Needs adopted pursuant to the collective bargaining agreement, then you must find for the defendants in this case. Conduct in accordance with the terms of a collective bargaining agreement cannot provide the basis for a claim of intentional and/or negligent infliction of emotional distress.

The Magistrate rejected this instruction because he felt it would confuse the jury, saying that it "raises more problems than it answers." In our view, the Magistrate had the legal power to reject the instruction. Parties have no right to an instruction that would confuse the jury. See, e.g., Shane v. Shane, 891 F.2d 976, 987 (1st Cir.1989). And, in the context of the case as argued, the Magistrate's reaction to the instruction--that it would confuse the jury--was reasonable.

For one thing, the language of the instruction is confusing. What, for example, do the words "conduct ... in accordance with" mean? Do they mean "conduct...