Daggitt v. United Food and Commercial Workers International Union

Decision Date19 October 2000
Docket NumberDEFENDANT,No. 00-1319,AFL-CI,00-1319
Citation245 F.3d 981
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the District of South Dakota.

Before McMILLIAN, Bowman, and Loken, Circuit Judges.

Bowman, Circuit Judge.

United Food and Commercial Workers International Union, Local 304A (UFCW or union), appeals from an adverse jury verdict in a Title VII sex discrimination and sexual harassment suit brought by Patricia Daggitt. UFCW argues that the District Court 1 should have dismissed Daggitt's sexual harassment claim for lack of subject matter jurisdiction, and that the court improperly enhanced the attorney fees awarded to Daggitt's counsel. We affirm.


UFCW represented Daggitt during her employment with John Morrell & Co. as a traffic clerk and dispatcher in Sioux Falls, South Dakota. Daggitt actively participated in the union, serving on its executive board and working for the union as treasurer and part-time assistant business agent. In 1998, Daggitt sued UFCW, asserting claims for sex discrimination and sexual harassment under Title VII, 42 U.S.C. 2000e to 2000e-17 (1994 & Supp. IV 1998), assault and battery, and intentional infliction of emotional distress. Before trial, UFCW moved for summary judgment, asserting that the District Court lacked subject matter jurisdiction over the union because it was not an "employer" as defined by Title VII. To be subject to suit under Title VII, an employer must have "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. 2000e(b). UFCW claimed it did not meet this fifteen-employee threshold. The District Court denied summary judgment, finding that UFCW in fact met the employee threshold because the union's shop stewards counted as employees for purposes of jurisdiction under Title VII. Daggitt v. United Food & Commercial Workers Int'l Union Local 304A, 59 F. Supp. 2d 980, 984 (D.S.D. 1999).

The jury returned a verdict in favor of Daggitt on her sex discrimination, sexual harassment, and intentional infliction of emotional distress claims. The jury found that UFCW discriminated against Daggitt on the basis of sex, but only in its capacity as a labor organization and not as her employer, and awarded Daggitt $5000 in punitive damages. On the sexual harassment claim, the jury rendered a general verdict in Daggitt's favor, awarding her $50,000 in punitive damages. The jury form did not specify whether the jury found that the union had sexually harassed Daggitt in its capacity as a labor organization or as an employer. Following additional post-trial motions, the District Court entered an amended judgment awarding Daggitt $33,847.13 in attorney fees and $893.57 in expenses pursuant to 42 U.S.C. 2000e-5(k), and specifying that a $50,000 cap on total punitive damages applied to Daggitt's award, see 42 U.S.C. 1981a(b)(3)(A) (1994). UFCW appeals only the verdict on Daggitt's sexual harassment claim and the attorney fees award.


Title VII authorizes suit against certain employers, 42 U.S.C. 2000e-2(a), and against labor organizations, 42 U.S.C. 2000e-2(c), as long as the statutory definitions are met. 42 U.S.C. 2000e(b), (d) (definitions). The parties agree that UFCW is a labor organization within the meaning of Title VII.

Daggitt contends that her sexual harassment claim proceeded against the union both as a labor organization of which she was a member and as her employer. The union disputes this contention, claiming in its brief that Daggitt's sexual harassment claim was pleaded and submitted to the jury against the union solely in its capacity as her employer. We disagree. 2

The plain language of the unchallenged jury instructions belies UFCW's assertion. Instruction eight states that Daggitt claimed the union's sexual harassment created "a hostile or abusive environment which prevented the plaintiff from performing her duties as Assistant Business Agent and treasurer and in fully participating in union activities." Jury instruction fourteen further describes Daggitt's sexual harassment claim: "The plaintiff claims that Local 304A created a hostile or abusive environment, which impacted her both as a union employee and as a participating member of the labor union." It directs the jury to "determine whether the harassment was sufficiently severe or extensive to alter the conditions of the plaintiff's employment or to alter the extent to which the plaintiff could participate in union activities." Further, the instruction charges the jury to "also consider the physical environment at the Labor Temple and at John Morrell & Company where the plaintiff participated in union activities as a union employee and union member." Finally, instruction fifteen directs the jury that, "[t]o establish a claim for sexual harassment based on a hostile or abusive environment, the plaintiff must prove that the conduct of Local 304A officers and members toward her while she worked as a Local 304A employee and participated in union activities would not have occurred but for her gender." We find that the above- emphasized language of instructions eight, fourteen, and fifteen clearly and unambiguously directed the jury to consider Daggitt's sexual harassment claim both in the context of her employment by UFCW and in the context of her participation as a member of the union.

UFCW submitted objections to the jury instructions and verdict form, but made no objection to instructions eight, fourteen, or fifteen. The union thus has waived any assignment of error to those instructions. See Fed. R. Civ. P. 51 ("No party may assign as error the giving [of] an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); Phillips v. Parke, Davis & Co., 869 F.2d 407, 409 (8th Cir. 1989) ("Rule 51 makes it incumbent upon the attorneys in a civil case to ascertain how the jury is to be instructed and to state any objections before the jury retires."). Where a party has waived an objection to a jury instruction, we review the instruction for plain error. Reversal will be warranted only in "'the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.'" Figge Auto Co. v. Taylor, 325 F.2d 899, 907 (8th Cir. 1964) (citation to quoted authority omitted). This suit does not present such an exceptional case. Thus, we find that Daggitt's sexual harassment claim was properly before the jury on a union- participation theory. 3


Daggitt asserted her sexual harassment claim against UFCW on a second theory of liability that also was submitted to the jury--that she was sexually harassed as an employee of the union. Where a jury renders a general verdict on claims presented under two or more theories, and where the reviewing court is unable to determine the theory upon which the jury based its award, each theory standing alone must provide a legally sound basis for granting relief. Robertson Oil Co. v. Phillips Petroleum Co., 871 F.2d 1368, 1375 (8th Cir. 1989). If one of the theories is found to be an unsound basis for relief, the reviewing court must reverse and remand for a new trial on only the legally sound theories. Id. Because we cannot ascertain whether the jury awarded Daggitt punitive damages on her sexual harassment claim because of the union's actions as her labor organization or as her employer, we must address the question of whether the District Court had jurisdiction to entertain Daggitt's employer-liability theory under Title VII.

UFCW argues that the District Court should have dismissed Daggitt's sexual harassment claim for lack of subject matter jurisdiction under Title VII because the court erred in holding that the local union's stewards are "employees" of the union. The District Court found that for the relevant time periods UFCW had approximately fifty union stewards. 4 Daggitt, 59 F. Supp. 2d at 982. In addition, the District Court found that without counting the union stewards the union had only ten or eleven employees during those years. Id. Thus, the status of the union stewards controls jurisdiction in this case. Whether union stewards can be counted as employees for jurisdictional purposes in a Title VII case is a question of first impression in this Circuit. 5

In reviewing the District Court's determination that the UFCW's shop stewards are employees of the union for purposes of federal-court subject-matter jurisdiction over Title VII claims against the union in its capacity as an employer, we apply the ordinary standards of appellate review. Thus, we review factual findings for clear error and we review legal conclusions de novo. Appley Bros. v. United States, 164 F.3d 1164, 1170 (8th Cir. 1999).

The union argues that its stewards should not be counted as employees because they are in "volunteer position[s] reserved for Union members in good standing who receive their co-workers' vote of confidence through election." Appellant's Brief at 21. Furthermore, the union argues, stewards do not receive "net income" from performing their duties; in other words, for performing their duties as stewards they do not make money over and above their usual salaries received as employees of John Morrell.

The District Court found that the union awarded three types of monetary benefits to its stewards. First, UFCW reimbursed stewards for the full amount of the union dues withheld by John Morrell from the stewards' paychecks during the preceding quarter. The reimbursement payments could be as high as ninety-one dollars per quarter. Second, UFCW...

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