Keehr v. Consolidated Freightways of Delaware, Inc.

• Citation: 825 F.2d 133
• Decision Date: 15 July 1987
• Docket Number: No. 86-2126,86-2126
• Parties: 125 L.R.R.M. (BNA) 3235, 2 Indiv.Empl.Rts.Cas. 565 Cynthia KEEHR and Bruce Keehr, Plaintiffs-Appellees, v. CONSOLIDATED FREIGHTWAYS OF DELAWARE, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 133

825 F.2d 133

125 L.R.R.M. (BNA) 3235, 2 Indiv.Empl.Rts.Cas. 565

Cynthia KEEHR and Bruce Keehr, Plaintiffs-Appellees, v. CONSOLIDATED FREIGHTWAYS OF DELAWARE, INC., Defendant-Appellant.

No. 86-2126.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 9, 1987.

Decided July 15, 1987.

Jay Robert Larkin, Roberts, Ryder, Rogers & Scism, Indianapolis, Ind., for defendant-appellant.

Ernest M. Beal Jr., Parrish Knight & Beal, Fort Wayne, Ind., for plaintiffs-appellees.

Before BAUER, Chief Judge, CUDAHY and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Consolidated Freightways ("CF") is engaged in the interstate carriage of freight. Bruce Keehr is employed as a dockman by CF at its facility in Fremont, Indiana; his duties include loading and unloading trailers. This suit grew out of a remark that a CF supervisor, Ronald Nisun, made to Bruce during a verbal and physical altercation between the two men on February 22, 1984. ¹ The fight between Bruce and Nisun began when Nisun asked Bruce how long it was going to take him to finish loading a truck; Nisun apparently used offensive language in addressing Bruce. Bruce made several angry retorts, and the two men separated. Bruce subsequently left the trailer he was loading and approached Nisun, ostensibly to ask Nisun for a forklift. The two men again exchanged heated words, and the verbal assaults soon escalated into a fist fight. At some point in the dispute, Nisun allegedly said that he had "heard the other night that [Bruce's] wife was fucking and sucking three niggers." Tr. at 212. This remark forms the basis of the suit here. ²

Bruce and Cynthia brought a diversity suit in federal court against CF. ³ Cynthia alleged that Nisun's remark defamed her and invaded her privacy. Bruce also alleged that the remark invaded his privacy; in addition, he brought a claim of intentional infliction of emotional distress. The Keehrs maintained at trial that the February 22 incident was not an isolated act but that Nisun was operating under the direction of CF management. Bruce maintained that he was on a "hit list" of employees targeted for harassment by management. According to Bruce, the list was composed of employees whom management considered to be troublemakers; management allegedly instructed CF supervisors to make crude and vulgar remarks about the families of these employees to cause them distress and to provoke them to throw a punch at a supervisor in order to give the company a basis to discharge the employee. CF's position at trial was that Bruce initiated the physical contact and that although angry comments were exchanged between Bruce and Nisun, none of the comments defamed Cynthia. CF also denied the existence of a plot to harass employees.

The parties stipulated that the jury could award damages only for the nonphysical injuries flowing from the November 22 incident. The plaintiffs were not seeking compensation for the medical bills incurred as a result of Bruce's injuries nor were they asking damages based on Bruce's discharge. The jury found against Cynthia on her defamation claim but for her on the privacy count. The jury awarded Cynthia $20,000 in actual damages but denied her request for punitive damages. The jury returned a verdict in favor of Bruce on both his claims. The jury awarded Bruce nominal damages of $1.00 on each claim and $50,000 in punitive damages. The district court denied CF's motion in the alternative for judgment notwithstanding the verdict ("JNOV") or for a new trial.

On appeal, CF raises a number of challenges to the jury verdicts. CF argues that Bruce's claims are preempted by federal labor law, and if they are not preempted, that Bruce failed to establish the elements of the torts of invasion of privacy and intentional infliction of emotional distress. CF also challenges the award of punitive damages to Bruce. With respect to Cynthia's claims, CF's position is that the jury verdicts were inconsistent, and accordingly, the district court erred in denying its motion for JNOV or a new trial. Further, CF alleges that the award of $20,000 in compensatory damages to Cynthia is unsubstantiated by the evidence. We reject all of these claims and affirm the jury verdicts.

I.

CF's first argument is that Bruce's tort claims are preempted by federal labor law because "the Keehr-Nisun incident was simply a continuation of the long running dispute between Keehr and his supervisors over work rules and working conditions at the facility" and a reflection of the labor problems that existed between the dock workers and management at the Fremont facility. Appellant's Brief at 15. ⁴

The Supreme Court has developed several different preemption doctrines in the labor law context. CF's preemption argument apparently implicates two of these doctrines. One doctrine, articulated in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245-46, 79 S.Ct. 773, 779-80, 3 L.Ed.2d 775 (1959), prohibits states from regulating conduct protected, prohibited or arguably affected by sections 7 and 8 of the National Labor Relations Act (the "NLRA"), 29 U.S.C. Secs. 157, 158. See also Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031, 1042 (7th Cir.1987) (en banc ). Garmon preemption protects the primary jurisdiction of the NLRB. A second preemption principle, recently discussed by the Supreme Court in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), involves the preemptive effect of section 301 of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. Sec. 185(a). Section 301 provides:

(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties....

29 U.S.C. Sec. 185(a). The purpose underlying section 301 preemption is the promotion of interpretive uniformity of collective bargaining agreements through application of uniform federal law. Allis-Chalmers, 471 U.S. at 210-11, 105 S.Ct. at 1910-11; see also International Bhd. of Elec. Workers v. Hechler, --- U.S. ----, 107 S.Ct. 2161, 2165, 95 L.Ed.2d 791 (1987). Although not entirely clear from its brief, CF apparently argues that Bruce's claims are preempted both under the Garmon rule and under section 301.

The question whether a state law claim for intentional infliction of emotional distress is preempted by sections 7 and 8 of the NLRA was resolved by the Supreme Court in Farmer v. United Bhd. of Carpenters & Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). The Court held in Farmer that a claim based on this tort is not preempted if certain conditions are met; these conditions are intended to ensure that recognition of the tort claim will not interfere with the federal labor law scheme. To preclude preemption, a claim for intentional infliction of emotional distress must be

either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.

Id. at 305, 97 S.Ct. at 1066 (footnote omitted). Further, the claim must be based on "outrageous" conduct and not simply "on the type of robust language and clash of strong personalities that may be commonplace in various labor contexts." Id. at 306, 97 S.Ct. at 1066; see also Linn v. United Plant Guard Workers, 383 U.S. 53, 65, 86 S.Ct. 657, 664, 15 L.Ed.2d 582 (1966) (tort of libel is not preempted if plaintiff "can show that the defamatory statements were circulated with malice and caused him damage"; requirement that malice be shown will minimize the possibility that labor debate will be chilled by the threat of state libel suits). ⁵

The district court rejected CF's preemption argument, concluding that Bruce's claims were "based on the abusive manner in which the plan to get Bruce Keehr fired was carried out, not a claim based on the plan itself." Tr. at 323. We agree. Bruce was not seeking damages based on the fact of discriminatory treatment; instead, he limited his claim to damages flowing from the manner adopted by CF management to carry out its plan.

We also conclude that the jury found that Nisun's remark was not simply an "angry jab" spoken during the heat of a dispute but instead constituted "outrageous" conduct. The jury was instructed that, in order for Bruce to establish his claim of intentional infliction of emotional distress, he had to show that Nisun's actions were "wilful, callous, or malicious" and were likely to provoke "an emotional disturbance or trauma, such as fright, shock, humiliation, insult, vexation, inconvenience, worry, or apprehension." Tr. at 591. "Wilful, callous, or malicious" actions certainly fall within the category of "outrageous conduct."

The Supreme Court has not yet decided the question whether the tort of invasion of privacy is preempted by the NLRA. Applying the preemption framework developed in Farmer, we conclude that Bruce's claim based on the tort of invasion of privacy is not preempted by sections 7 and 8 of the NLRA. Because the same conduct underlies Bruce's claims for intentional infliction of emotional distress and for invasion of privacy, we simply repeat here our prior conclusion that Bruce's claims were based, not on the fact that Nisun's remarks may have been part of a plot by management to get Bruce fired, but on "the particularly abusive manner" in which the alleged plan was carried out. We also conclude that the spectre of a state tort suit for invasion of privacy will not unduly interfere with debate in the labor context because to establish such a claim under Indiana law, the plaintiff must show "an intentional interference with or intrusion into ... a plaintiff's interest in solitude or seclusion ... in a manner that is highly offensive...