Burger v. Intern. Union of Elevator Local No. 2

• Decision Date: 22 August 2007
• Docket Number: No. 06-4155.,No. 06-3061.,No. 06-3164.,06-3061.,06-3164.,06-4155.
• Citation: 498 F.3d 750
• Parties: Robert M. BURGER, Plaintiff/Appellee/Cross-Appellant, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS LOCAL NO. 2, Defendant/Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

498 F.3d 750

Robert M. BURGER, Plaintiff/Appellee/Cross-Appellant, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS LOCAL NO. 2, Defendant/Appellant/Cross-Appellee.

No. 06-3061.

No. 06-3164.

No. 06-4155.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 2007.

Decided August 22, 2007.

Daniel M. Feeney (argued), Miller, Shakman & Beem, Chicago, IL, for Plaintiff/Appellee/Cross-Appellant.

Travis J. Ketterman (argued), Whitfield & McGann, Chicago, IL, for Defendant/Appellant/Cross-Appellee.

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 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 agreement 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 apprenticeship 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-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 preventing 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 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 district 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 evidence that no other union member had ever been required to sign the book and that the alleged rule requiring him to do so was not contained in any rule, constitution, or by-law of the union. Of course the union is permitted 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 allowing 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 considering "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 unreasonable 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...