Casumpang v. International Longshore & Warehouse

• Decision Date: 31 October 2005
• Docket Number: No. CIV. 98-00775ACKKSC.,CIV. 98-00775ACKKSC.
• Citation: 411 F.Supp.2d 1201
• Court: U.S. District Court — District of Hawaii
• Parties: Nicanor E. CASUMPANG, Jr. Plaintiff, v. INTERNATIONAL LONGSHORE & WAREHOUSE UNION, LOCAL 142, and Eusebio Lapenia, Jr., Defendants.

411 F.Supp.2d 1201

Nicanor E. CASUMPANG, Jr. Plaintiff, v. INTERNATIONAL LONGSHORE & WAREHOUSE UNION, LOCAL 142, and Eusebio Lapenia, Jr., Defendants.

No. CIV. 98-00775ACKKSC.

United States District Court, D. Hawai`i.

October 31, 2005.

COPYRIGHT MATERIAL OMITTED

Jerry P.S. Chang, Shawn A. Luiz, Honolulu, HI, for Plaintiff.

Daniel T. Purtell, Fred H. Altshuler, Laura P. Juran, Altshuler Berzon Nussbaum Rubin & Demain, San Francisco, CA, Danny J. Vasconcellos, Herbert R. Takahashi, Rebecca L. Covert, Stanford H. Masui, Takahashi Masui Vasconcellos & Covert, Honolulu, HI, for Defendants.

ORDER DENYING ILWU'S MOTION FOR JUDGMENT AS A MATTER OF LAW, DENYING IN PART ILWU'S MOTION FOR A NEW TRIAL, AND SETTING REMITTITUR

KAY, District Judge.

Nicanor E. Casumpang ("Plaintiff") filed this lawsuit on September 23, 1998, alleging, among other things, that he was fined and suspended from membership in International Longshore & Warehouse Union, Local 142, ("ILWU," "Defendant," or the union), by ILWU and Eusebio Lapenia, Jr. (ILWU's former president), in retaliation for criticizing union leadership and/or policies in violation of the Labor Management Reporting and Disclosure Act. After years of litigation, which included the Ninth Circuit's reversal and remand of this Court's order dismissing the action, this claim was the sole remaining claim that went to trial on May 3, 2005. At the close of the thirteen day trial, ILWU and Mr. Lapenia made a motion pursuant to Federal Rule of Civil Procedure 50 for judgment as a matter of law, which the Court denied.

After approximately two days of deliberation, on May 26, 2005, the jury returned a verdict against ILWU. Specifically, the jury found ILWU liable for retaliation against Plaintiff and awarded the following damages: $90,000 for injury to reputation; $150,000 for emotional distress; and $1 million for punitive damages. The jury found Mr. Lapenia not liable for retaliation against Plaintiff.

On June 14, 2005, ILWU filed a Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial or Reduction of Damages Award, seeking entry of judgment as a matter of law under Federal Rule of Civil Procedure 50 or a new trial or reduction of the damages award under Federal Rule of Civil Procedure 59.¹ On June 27 2005, Plaintiff filed an Opposition. On July 8, 2005, ILWU filed a Reply. The Court finds the motion suitable for disposition without a hearing. See L.R. 7.2(d).

In this order, the Court takes the following action: denies ILWU's motion for judgment as a matter of law; denies ILWU's motion for a new trial as it applies to ILWU's liability; and grants ILWU's motion for a new trial on the issue of damages unless Plaintiff agrees to remit the punitive damages in excess of $240,000.

I. BACKGROUND

A. Legal Background

The Labor Management Reporting and Disclosure Act ("LMRDA") provides every member of any labor union the right to meet and assemble freely with other members, express views, arguments, or opinions, and to express at meetings of the labor union his views upon candidates in an election or upon any business properly before the meeting, subject to the union's established and reasonable rules pertaining to conduct of the meetings. See 29 U.S.C. § 411(a)(2). Plaintiff alleges that his free speech rights under the LMRDA were infringed by ILWU because it allegedly suspended and fined him in retaliation for speaking out against union leadership and union policies.

At trial, the burden is on Plaintiff to prove the following elements by a preponderance of the evidence: (1) he exercised the right to oppose union leadership and/or union policies; (2) he was subjected to retaliatory action; and (3) the retaliatory action was a direct result of his decision to express disagreement with the union's leadership and/or union policies. See Casumpang v. Int'l Longshoremen's and Warehousemen's Union, Local 142, 269 F.3d 1042, 1058 (9th Cir.2001). To prove these elements, Plaintiff may use direct and/or circumstantial evidence. See, e.g., Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir.2003); Casumpang, 269 F.3d at 1058-1059. If Plaintiff offers only circumstantial evidence that the union's motive was different from its stated motive, such circumstantial evidence must be specific and substantial evidence of pretext. See Stegall, 350 F.3d at 1066; Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.2002). Additionally, causation can be inferred from timing alone where the retaliatory action follows on the heels of protected activity, but the adverse action must have occurred "fairly soon" or "very close" in time after the protected activity. See Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); Villiarimo, 281 F.3d at 1065.

B. Testimony and Evidence Presented at Trial

Plaintiff was formerly a member in good standing and full time, elected employee of ILWU on Maui, where he served as a business agent. In January 1998, Plaintiff lost his ability to hold any elected employment with ILWU when he was suspended as a member in good standing for nine years and fined $7,636. Plaintiff introduced evidence at trial that he was suspended and fined in retaliation for criticizing union policies and union leadership. Defendant introduced evidence at trial that Plaintiff was not suspended and fined in retaliation for his criticism, but was suspended and fined because he violated ILWU's constitution by engaging in outside gainful employment while he was a business agent. As background, the Court will provide a summary of the testimony and evidence presented at trial; however, this summary is not meant to be all inclusive.

Plaintiff testified that he expressed criticism over the union leadership's positions on multiple issues over the years that he served as a business agent. Plaintiff testified that he questioned the union leadership on political action committee ("PAC") funds that were collected from the membership and repeatedly requested an accounting of how those funds were spent. Plaintiff testified that he expressed disagreement with the union leadership's handling and settling of a labor dispute with Monarch Building Supply ("Monarch") in 1995 and 1996. He also testified that he expressed disagreement with the union leadership while he was part of a negotiating team involving the Royal Lahaina contract negotiations in 1996 and 1997 (specifically raising concerns about the participation of lawyers in the negotiation process and the leadership's desire to eliminate snap back payments to members in favor of a health and welfare program).

Plaintiff testified that in June 1997, he formally announced his intention to run against incumbent Roger Tacdol for the elected position of Maui Division Director in the November 1997 ILWU elections because he did not agree with the direction of the ILWU Maui Division. Plaintiff testified that in August 1997 (after he announced his candidacy), ILWU leadership — at the directive of Guy Fujimura (Secretary Treasurer of ILWU) — began an investigation into Plaintiff's daily activities involving the Filipino Chamber of Commerce of Maui (to which Plaintiff had been elected president).

Plaintiff testified that his criticism of the union leadership and union policies came to a head at the annual ILWU convention in September 1997, where he engaged in approximately five to ten public "heated debates" with Mr. Lapenia (then-president of ILWU) about issues including PAC fund accounting, snap back payments, the health and welfare program, participation of lawyers in negotiations, and proposed constitutional amendments. Plaintiff testified that these heated debates took place at the constitutional committee meetings at the 1997 convention.

Plaintiff testified and presented evidence that he won the November 1997 election against Mr. Tacdol for Maui Division Director, but that the election was contested and scheduled for a re-run election to take place in January 1998.²

Plaintiff had previously been investigated (in February through April of 1996) for allegedly engaging in outside activity as an electrical contractor, in violation of article II, section 1 of the 1995 constitution (which prohibited "elected and appointed full-time officials of the Local" from holding "other gainful position[s]"). In April 1996, Plaintiff agreed to a cease and desist order stating that he would cease and desist from activity as an electrical contractor. Plaintiff testified that also in April 1996, while he was serving a 60-day suspension for an unrelated matter regarding sexual harassment, Mr. Lapenia gave him permission to conduct outside electrical contracting work.

On December 23, 1997, Plaintiff received notice of an investigation into his activity as an electrical contractor subsequent to the 1996 cease and desist order. Shortly thereafter, written specific charges were signed against Plaintiff by thirteen union members (including the three ILWU titled officers: Mr. Lapenia, Mr. Girald, and Mr. Fujimura). Plaintiff testified that the majority of these thirteen members witnessed his heated debates with Mr. Lapenia at the 1997 convention. The written specific charges directed the judicial panel to take appropriate action, "including but not limited to suspending [Plaintiff] from service as a full-time officer of the ILWU Local 142."

Plaintiff testified and submitted evidence regarding his ensuing January 1998 trial before the judicial panel.³ The judicial panel rendered a verdict against Plaintiff that: (1) Plaintiff violated the constitution on nine occasions by engaging in activity as an electrical contractor after the cease and desist order of April 1996, and (2) there was insufficient evidence to sustain the charge that Plaintiff improperly used union resources in 1997 to promote his activities as president of the Filipino Chamber of Commerce of Maui. As punishment, the panel sus...