Blue v. Int'l Bhd. of Elec. Workers Local Union 159

• Decision Date: 02 April 2012
• Docket Number: No. 11–1484.,11–1484.
• Citation: 82 Fed.R.Serv.3d 10,114 Fair Empl.Prac.Cas. (BNA) 1210,676 F.3d 579
• Parties: Susan BLUE, Plaintiff–Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 159, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

114 Fair Empl.Prac.Cas. (BNA) 1210

676 F.3d 579

82 Fed.R.Serv.3d 10

Susan BLUE, Plaintiff–Appellee,

v.INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 159, Defendant–Appellant.

No. 11–1484.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 2011.Decided April 2, 2012.

Mary E. Kennelly (argued), Attorney, Fox & Fox, Monona, WI, for Plaintiff–Appellee.

Victor M. Arellano (argued), Attorney, Arellano & Phebus, Middleton, WI, for Defendant–Appellant.

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

In 2009, Susan Blue sued her former employer, International Brotherhood of Electrical Workers, Local 159 (IBEW), alleging retaliation for opposing the discrimination of an African–American electrician. The jury found in favor of Blue and awarded her $202,396.76 in damages. IBEW filed several post-trial motions with the district court, seeking a new trial or relief from the judgment on the grounds that the district judge erred in admitting certain evidence and that the weight of the evidence favored IBEW. The district court denied IBEW's motions, and now IBEW appeals. Although, as we explain below, our jurisdiction on this appeal is limited, we find no error with the district court's decisions, and we therefore affirm.

I

For over 30 years, Blue was an administrative assistant at IBEW. There is ample evidence that Blue's work was excellent: Union members frequently relied on Blue for information on union benefits or obligations; her colleagues described her as professional, knowledgeable, and reliable; and at least one former supervisor described her job performance as “outstanding.” During the events at issue in this case, Blue's supervisor at IBEW was Billy Harrelson, and until the contested period, there is no indication that Harrelson ever criticized or disciplined her.

In early 2006 Alexander Phillips filed a complaint of race discrimination against IBEW with the Madison Equal Opportunities Commission (MEOC). Phillips's complaint alleged that his information was removed from the IBEW referral book and his union initiation fee was returned to him because of his race (African–American). Blue learned of the complaint's contents after it was mailed to the IBEW office. Around the same time, Blue also discovered that Harrelson had allowed a white electrician to sign the referral book without paying his initiation fee. Concerned about this disparity, Blue questioned Harrelson about the apparent discrimination.

Harrelson retaliated: Blue presented evidence that she was stripped of her essential job duties, denied overtime opportunities, and subjected to a hostile work environment. As Phillips's case at the MEOC progressed, Harrelson's harsh treatment of Blue intensified. The MEOC mailed several questionnaires to IBEW to be filled out by selected workers, including Blue. Harrelson demanded that Blue go through IBEW's attorney before answering the MEOC's questions. Blue, however, was worried that the attorney would modify her answers, and so, on April 6, 2006, she mailed her responses directly to the MEOC and sent a copy to IBEW's lawyer. At that point, Harrelson began to discipline Blue for minor infractions. He accused her of being “excessively tardy” despite evidence that Blue was usually on time and never more than five minutes late. On February 14, 2007, the MEOC scheduled a public hearing on Phillips's case, and a few days later, IBEW took four disciplinary actions against Blue—all of which were eventually vacated by Harrelson's successor. Over the next several months, Harrelson's campaign of retaliation escalated: Blue received additional formal disciplinary measures, she was suspended without pay, and she was driven to take medical leave to escape the emotional stress wrought by her work environment. Blue finally filed her own complaint with the MEOC, alleging retaliation, and she later brought her case to the District Court for the Western District of Wisconsin.

Before trial, IBEW moved to exclude from evidence the MEOC's file on Phillips's complaint. The district court denied the motion, and four documents from the file were used at trial: Phillips's original complaint; Blue's statement; the MEOC's finding of probable cause; and the MEOC's notice of hearing. Blue used these documents, along with other evidence, to demonstrate that Harrelson had a motive to retaliate against Blue and to prove the causal link between her protected activities and her adverse employment actions. The jury credited her evidence and, on August 5, 2010, it returned a judgment in favor of Blue.

The district court formally entered judgment against IBEW on August 9, 2010. It originally set a deadline of August 25 for all post-trial motions, but, without any objection by Blue, the court extended this deadline in response to a motion by IBEW. On September 10, IBEW filed two motions, seeking either judgment as a matter of law under Federal Rule of Civil Procedure 50(b), or a new trial under Federal Rule of Civil Procedure 59(a). The district court denied both motions on February 3, 2011, and on March 1, IBEW filed its Notice of Appeal.

II

Before turning to the merits of IBEW's appeal, we must clarify the scope of our jurisdiction. We generally have jurisdiction to hear a case only where a notice of appeal was filed within 30 days of the entry of judgment. 28 U.S.C. § 2107(a); Fed. R.App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). The timely filing of certain post-trial motions, however, tolls the start of this 30–day period until the resolution of those motions. See Fed. R.App. P. 4(a)(4)(A). In this case, the district court entered judgment on August 9, 2010, but IBEW did not file its Notice of Appeal until March 1, 2011. This is obviously outside the 30–day period. The question is whether IBEW's filing of its post-trial motions (said to be under Rules 50(b) and 59(a)) operated to extend that time, given the fact that it filed its motions after the 28–day period provided in the rules for this purpose had elapsed. Fed.R.Civ.P. 50(b), 59(b). This is a matter of jurisdictional importance. Our authority to hear IBEW's appeal from the underlying judgment turns on whether IBEW's motions tolled the time to appeal under Federal Rule of Appellate Procedure 4(a)(4)(A). We hold that they did not, and therefore our jurisdiction on appeal is limited to a review of the district court's denial of IBEW's post-judgment motions.

A

The answer to whether IBEW's motions had the necessary tolling effect lies directly in the text of Federal Rule of Appellate Procedure 4(a)(4)(A). That rule states that only “timely” motions have tolling effect. Fed. R.App. P. 4(a)(4)(A). In order to be “timely,” IBEW's motions had to be filed within the 28–day period provided in Federal Rules of Civil Procedure 50 and 59. The fact that the district court purported to extend the time past that 28–day period is of no moment. Civil Procedure Rule 6(b)(2) prohibits a court from doing exactly this. Because these motions were untimely, they did not toll the period within which IBEW was entitled to file its appeal from the judgment. See Browder v. Ill. Dep't of Corrections, 434 U.S. 257, 264–65, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). In an attempt to avoid the apparent harshness of this result, IBEW suggests that we should follow the approach of the Sixth Circuit, which has said that “where a party forfeits an objection to the untimeliness of a Rule 59(e) motion, that forfeiture makes the motion ‘timely’ for the purpose of [Appellate] Rule 4(a)(4)(A)(iv).” Nat'l Ecological Foundation v. Alexander, 496 F.3d 466, 476 (6th Cir.2007). Because Blue failed to object to IBEW's late Rules 50 and 59 filings, IBEW argues that its motions should be considered “timely” on appeal. The Third Circuit sees things differently: It has concluded that untimely motions do not toll the period for filing a notice of appeal “even if the party opposing the motion did not object to the motion's untimeliness and the district court considered the motion on the merits.” Lizardo v. United States, 619 F.3d 273, 278 (3d Cir.2010). In our view, the Third Circuit has the better of the argument.

The Sixth Circuit's rule strikes us as uncomfortably close to the “unique circumstances” doctrine that the Supreme Court disapproved in Bowles, see 551 U.S. at 214, 127 S.Ct. 2360, which is one good reason to reject it. Lizardo, which was handed down after Bowles, not surprisingly conforms to the Supreme Court's understanding of the nature of congressionally prescribed time limits for appeals. Section 2107(a) of Title 28 of the United States Code provides that a notice of appeal in civil cases must be filed within 30 days after the entry of judgment. As the Supreme Court explained in Bowles, because only Congress can determine the jurisdiction of the lower federal courts, there is a “longstanding” tradition of treating such a statutorily mandated time limit for taking an appeal as jurisdictional. 551 U.S. at 210–11, 127 S.Ct. 2360. The 30–day rule for civil appeals, (which has been incorporated into Federal Rule of Appellate Procedure 4(a)(1)(A)) thus limits the authority of the courts of appeals. Importantly, the statute addresses the subject of extensions of time, and it does not mention the kind of order entered here. Instead, it outlines a specific method by which a party may seek additional time to appeal by “showing ... excusable neglect or good cause.” 28 U.S.C. § 2107(c). This rule, too, is jurisdictional. See Bowles, 551 U.S. at 213, 127 S.Ct. 2360 (“Because Congress specifically limited the amount of time by which a district court can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple ‘claim-processing rule.’ ”). If we were to allow IBEW's untimely Rules 50 and 59 motions to toll the time to appeal, we would be creating a new opportunity for parties to extend the time to appeal....