Johnson v. Teamsters Local 559

• Decision Date: 05 June 1996
• Docket Number: 95-2319,Nos. 95-2318,s. 95-2318
• Parties: 153 L.R.R.M. (BNA) 3031, 36 Fed.R.Serv.3d 1127 Patricia JOHNSON, et al., Plaintiffs, Appellees, v. TEAMSTERS LOCAL 559, et al., Defendants, Appellants. Patricia JOHNSON, et al., Plaintiffs, Appellants, v. TEAMSTERS LOCAL 559, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

102 F.3d 21

153 L.R.R.M. (BNA) 3031, 36 Fed.R.Serv.3d 1127

Patricia JOHNSON, et al., Plaintiffs, Appellees, v. TEAMSTERS LOCAL 559, et al., Defendants, Appellants.

Patricia JOHNSON, et al., Plaintiffs, Appellants, v. TEAMSTERS LOCAL 559, et al., Defendants, Appellees.

Nos. 95-2318, 95-2319.

United States Court of Appeals, First Circuit.

Heard June 5, 1996.

Decided Dec. 13, 1996.

Daniel B. Edelman, with whom Yablonski, Both & Edelman, Washington, DC and Burton S. Rosenberg, Hamden, CT, were on brief, for Teamsters Local 559, et al.

Terrence A. Low, with whom Rosen, Greenhut, Catuogno & Low and Patricia Bobba Donovan, Springfield, MA, were on brief, for Patricia Johnson, et al.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

In the principal appeal now before us, Teamsters Local 559 and Robert Dubian appeal from state law tort judgments against them arising out of a workplace conflict. They argue, inter alia, that there is insufficient evidence to support the judgments under the Norris-LaGuardia Act's "clear proof" requirement.

I.

Frank Johnson worked at Sweet Life Foods ("the Company" or "Sweet Life") in Suffield, Connecticut and was a member of Teamsters Local 559 ("the Union"). He sued the Union and two of its officers, Robert Dubian and Tom Gilmartin, Jr., alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and asserting pendent state law claims for intentional infliction of emotional distress and assault. Patricia Johnson, Frank Johnson's wife, sued for loss of consortium.

The district court, in a bench trial, found for all three defendants on Johnson's Title VII claims. Johnson did not appeal from this determination.

The pendent state law claims were tried to a jury which returned verdicts against the Union, Dubian and Gilmartin for intentional infliction of emotional distress and loss of consortium. The jury also returned a verdict against the Union, but not against Dubian or Gilmartin, for assault. The jury assessed damages against the Union of $120,000 for intentional infliction of emotional distress, $35,000 for loss of consortium, and $105,000 for assault. The jury found Dubian liable for $35,000 on the intentional infliction claim and $35,000 on the loss of consortium claim. Gilmartin was found liable for $40,000 on the intentional infliction claim and for an additional $40,000 on the loss of consortium claim.

Responding to the defendants' Rule 50(b) motion, the district court entered judgment as a matter of law for Gilmartin, ruling that no reasonable jury could have found him liable for intentional infliction of emotional distress and loss of consortium. However, the court let stand the jury's verdicts against the Union and Dubian. The latter now appeal from the judgments against them, and the Johnsons cross-appeal from the court's entry of judgment as a matter of law in Gilmartin's favor.

II.

We recite the facts as they might reasonably have been found by the jury. Sweet Life, a food distributor, suspected that it was losing significant amounts of meat to employee theft, and so it placed secret cameras in the work area to discover who was responsible. From what was uncovered, it appeared that over ten employees were involved in the thefts, which had gone on for four or five years and were common knowledge among the employees, all of whom were also Union members. Several employees were caught stealing on tape and were fired. One of the tapes showed Johnson opening up a crate of meat, although it did not reveal him in the act of actually stealing meat. The Company confronted Johnson with the tape and threatened that he would be fired if he did not reveal the names of other employees responsible for the thefts.

The Union had a written policy against harming a Union brother. Both Union officials and members interpreted this policy as prohibiting one member from "ratting" on another. Dawn Mitchell, the acting Union steward, told Johnson he should allow himself to be terminated rather than reveal the names of the employees who were stealing because of this Union policy against turning in a Union brother. Gilmartin also told Johnson about this policy. Dennis Kawa, a Sweet Life worker and Union witness, stated that he did not report any of the many incidents of stealing he saw by various Union members because "[i]t's a rule" not to turn in a Union brother.

Johnson ignored Mitchell's advice and provided the company with the names of three men he said he had seen stealing. The Company fired these men entirely on the basis of Johnson's information. The three fired men filed a grievance with the Union, and an arbitration hearing was set for April 29, 1986.

Starting before and intensifying after the arbitration hearing, unidentified employees of Sweet Life, who were also Union members, began harassing Johnson. They wrote threatening messages on the bathroom walls such as, "Frank, where will you be when the lights go out?"; "559 Rule"; "There's only one thing worse than a rat--a nigger rat"; "The rat will never work again when we get through with him, nowhere"; "Frank Johnson is as good as dead, 4/29/86"; "Bye bye Frank. Look for another job."; "Who didn't pass spear chucking school?"; "559 rules Frank Johnson"; "Call me" (with Johnson's phone number); and "Frank Johnson's a squealing nigger rat." The walls were painted several times, but the graffiti persisted.

These anonymous Union members also made rat and pig noises when around Johnson; put pieces of wood in the keyhole of Johnson's forklift; placed buckets of water on the top of Johnson's forklift; sang "slave songs" such as "Swing Low Sweet Chariot" at him during every hourly break, every day; drew pictures of rats on Johnson's locker and on the walls; threw peanut shells and a milk carton at him; hung a rubber chicken on his forklift; and ostracized him socially. This harassment involved a large number of employees--all of whom, as said, were Union members--and only intensified as time went on.

At the arbitration hearing, Gilmartin, the Union Business Agent and the officer primarily responsible for enforcing the Union's collective bargaining agreement with the Company, defended the three accused employees and convinced the arbitration panel to reinstate them and award them back pay. He accomplished this primarily by casting doubt on Johnson's testimony and accusing him of stealing meat. Gilmartin charged that the tape shown at the hearing portraying Johnson opening a crate of meat had been edited; the original tape, he said, had also shown Johnson actually putting meat into his pocket.

Gilmartin and the Union were at all relevant times aware of the harassment of Johnson. Gilmartin held two meetings with the Union members. At the first meeting, before the arbitration hearing, Gilmartin stated that he would personally "take care of" anyone who harmed a Union brother. Either at that meeting or at the other, Gilmartin stated that he disagreed with people's writing on the walls and that anyone actually caught doing so would be fired. He indicated that he opposed the racial epithets and that they were offensive to the other African-American members.

Sweet Life provided Johnson with guards to escort him to and from work and to watch over his home. For security reasons, Johnson left work a few minutes early each day. The Company wanted to pay him as if he were not missing this time, but Gilmartin opposed paying Johnson without an agreement from Sweet Life to pay all people who left early under extraordinary circumstances. When the Company went ahead and paid Johnson anyway, Gilmartin filed a grievance.

As a result of the harassment, Johnson suffered from Post-Traumatic Stress Disorder for which he sought psychiatric treatment. He became paranoid and was unable to sleep or interact normally with his wife and family. He became increasingly depressed and began drinking regularly. His psychiatrist placed him on antidepressant and antianxiety medication. On August 12, 1986, Johnson left Sweet Life because of his psychiatric condition.

After Johnson's departure, Dubian, the Union's Secretary-Treasurer, drove by Johnson's home in a Union-owned car several times a day for a period of some three weeks. Dubian testified that the purpose of these visits was to determine if Johnson had found new employment. The three fired employees had filed charges against Johnson for breaking the Union's rule against harming a Union brother. If Johnson were working elsewhere, he would no longer be subject to the Union's authority, and Dubian could dismiss the charges.

On appeal, Dubian argues that there was insufficient evidence in the record to support the jury's judgment against him for intentional infliction of emotional distress.

The Union contends that because the underlying arbitration hearing involved a labor dispute, the Johnsons' claims are governed by the Norris-LaGuardia Act's "clear proof" requirement. ¹ The Union believes that under this, more rigorous, standard, there is insufficient evidence to support the judgments against it for intentional infliction of emotional distress and for assault. Even if there is sufficient evidence, the Union contends that the fact that the special verdict form did not mention the "clear proof" requirement necessitates a new trial. In their cross-appeal, the Johnsons argue that the court erred in entering judgment as a matter of law for Gilmartin on the intentional infliction of emotional distress and loss of consortium claims because there was sufficient evidence to validate the jury's finding.

III.

A. Dubian's Liability

Dubian argues that his conduct in driving by the Johnsons' home and following Johnson when he left his house for a period of three weeks was not the sort of "extreme and outrageous" behavior that can justify a judgment for intentional infliction of emotional distress...