This appeal stems from an ugly incident of verbal abuse of a female police officer by her fellow male officers during a union-sponsored bus trip in the fall of 1998, as well as from the actions of the union and its members in response to the investigations of her complaints in the years that followed. The female officer, Vanessa Dixon, eventually brought a civil suit in federal court against the national union and its local chapter, their presidents, and two of the police officers involved in the incident, asserting claims of discrimination, retaliation, and defamation. The jury found for Dixon on some but not all of her claims, awarding her a total of $1,205,000 in compensatory damages and $1,027,501 in punitive damages.
Defendants appeal the judge’s denial of their motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), as well as the judge’s jury instructions regarding retaliation and punitive damages. Dixon, who lost her defamation *78 claim against the national union and its president, appeals the judge’s determination that she was a public official, which required the jury to find that the defendants acted with actual malice. We affirm.
I. BACKGROUND
Because some of the defendants challenge the denial of their motions for judgment as a matter of law, we recount the facts in the light most favorable to the verdict.
Muñiz-Olivari v. Stiefel Labs., Inc.,
The day Dixon joined the police department, she automatically joined the police officers’ union, Local 382 (“Local”) of the International Brotherhood of Police Officers (“IBPO”). An active member, Dixon ran for the Local’s executive board, hosted holiday parties for members’ families, participated in fundraising events, and traveled with the Local to union events in Puerto Rico and Washington, D.C. In the fall of 1998, Dixon agreed to participate with the Local in a gubernatorial campaign rally in Boston.
On October 26, 1998, Dixon joined seven of her fellow officers and six corrections officers on a hired bus to travel to Boston. She was the only woman on the trip, other than the bus driver. From the moment she walked into the union hall that afternoon, she was subjected to gender-based criticisms by the other officers regarding what she was wearing and her presence on an all-male trip. Once in Boston, the group participated briefly in the rally at Faneuil Hall, then reboarded their bus for Anthony’s Pier 4, where the IBPO hosted a dinner and open bar. After dinner, the group moved to the restaurant’s bar, where they befriended a group in town for a convention. Gerald Flynn, the president of the Local and the organizer of the Boston trip, invited these out-of-towners to join the Lowell group on their bus as they continued on to J.J. Foley’s, a bar in the South End frequented by police officers.
Dixon spent time at J.J. Foley’s with some of the conventioneers, including a man named Jason Kumm. When the bar closed at 2 a.m., Kumm did not know how to get back to his hotel, so Dixon persuaded the bus driver to drop Kumm off before heading back to Lowell.
As the bus left the bar, John Leary — a police officer whom Dixon had once dated and who was sitting directly across the aisle from her — started yelling at Dixon for creating a delay-causing detour so late at night. The shouting escalated as other people at the back of the bus joined in. The comments, directed at Dixon and Kumm, turned sexual: “Why don’t you fuck her. We all have.” “She gives great blowjobs.” “She will do you, she’s done all of us.” The bus driver, who testified that she had spent seven years trying to forget *79 that night, explained that “the word fuck was used so often that I was turning my mind off to it.” Kumm described the barrage as “totally inappropriate conversation, verbally abusive, threatening.” Flynn, sitting at the front of the bus, encouraged Kumm to get off before a fight broke out; the situation, he thought, “had the potential to explode.”
Kumm did get off the bus before it reached his hotel, but the verbal abuse of Dixon did not end. Leary kept shouting in Dixon’s face such comments as, “Get off the bus with your boyfriend. Go fuck him at the Sheraton if you want to bring him with you.” Similar comments continued from the back of the bus. When Dixon looked behind her, she saw another officer, David Pender, standing with his hands down his pants and saying, “Why don’t you come and fucking blow me.” 1 Terrified, Dixon demanded the bus driver let her off the bus near Boston Common, even though the driver and Ed McMahon, another officer, tried to dissuade her. Throughout all of this, Flynn remained at the front of the bus; although the president of the Local, he did not intervene to stop the abuse or to try to reassure Dixon when she wanted to flee.
During her efforts to make her way home, Dixon was subjected to an attempted sexual assault by a stranger. Distraught, Dixon called in sick to work the next two days, and when she did return to work, she avoided speaking about the bus incident. A few weeks later, however, the Chief of the Lowell Police Department, Edward Davis III, caught wind of the incident and started an internal investigation, in which Dixon cooperated. On November 19, 1998, the Chief sent letters to the male officers on the bus trip, including Leary, ordering them to have no contact with Dixon.
On November 20, the very next day, Leary sought and received an ex parte temporary restraining order (“TRO”) against Dixon under chapter 209A of the Massachusetts General Laws. Leary’s cursory affidavit, which the jury did not see, evidently alleged that Dixon had made threatening comments to him the evening of the bus incident. He did not explain why he had waited a month to seek protection from Dixon in the form of a TRO. Leary knew the TRO would have the result, under department policy and Massachusetts law, of forcing the police department to put Dixon on administrative leave and confiscate her weapon while the TRO was in effect. Although Dixon hired a lawyer and went to court to deny the allegations, Leary never returned to court to support his TRO or seek continued protection, allowing the TRO to expire after its initial fifteen-day coverage. Dixon testified she was humiliated when she had to explain her month-long absence, caused by the TRO, to the teachers, students, and parents with whom she worked at Rogers Middle School. Because of the TRO, she had to get special permission to renew her firearms permit, and she avoided participating in outreach programs that required a background check.
The Lowell Sun reported that Leary had obtained a TRO against Dixon. This marked the beginning of extensive local publicity about the bus incident and its aftermath. Flynn was quoted frequently in the paper and appeared on local television stations and radio shows talking about his version of events. The president of the IBPO, Kenneth Lyons, hosted a local television show produced and paid for by the union; he used this show over the follow *80 ing year to defend the male officers and disparage Dixon, the police chief, and the city manager for pursuing their investigation. His comments grew increasingly vicious and were the basis for Dixon’s defamation claim against Lyons and the IBPO, as well as part of the basis for her retaliation claims.
At the conclusion of the internal investigation in the spring of 1999, the city fired Leary and suspended Flynn, Pender, and some of the other officers. The officers appealed to the Civil Service Commission, which held additional hearings that fall. In the interim, Jose Rivera, one of the disciplined officers, filed an internal sexual harassment claim against Dixon. So did another officer who co-taught DARE summer camps with Dixon, further disrupting her work at the school. Both claims were later determined to be unfounded.
In January 2000, the Civil Service Commission dismissed the charges against Flynn 2 and a few of the other officers, finding insufficient evidence to sustain the charges against them. It also determined that Dixon’s testimony regarding Pender’s alleged indecent exposure, Flynn’s allegedly inappropriate comments to the bus driver, and various other details of events the night of the bus incident was inconsistent and thus not credible. The Commission’s final decision, issued in January 2001, sustained Leary’s termination, though it decreased the length of Pender’s and Rivera’s suspensions. It again concluded that Dixon’s testimony was not entirely truthful. Within a month, Leary, Pender, and Rivera all filed complaints against Dixon with the police department’s internal affairs office, accusing her of perjury and launching another internal investigation. This investigation concluded in the spring of 2002 that Dixon had perjured herself in statements made to the department’s investigators and in testimony before the Civil Service Commission, and the city sent Dixon a notice of contemplated discipline in August 2002. She had, however, already quit the force on June 12, 2002.
Dixon first filed complaints with the Massachusetts Commission Against Discrimination (“MCAD”) and the Equal Employment Opportunity Commission (“EEOC”) in the spring of 1999. After receiving “Right to Sue” letters from both the MCAD and the EEOC, Dixon brought suit in October 2001 in the District of Massachusetts against Leary, Flynn, Pen-der, Lyons, 3 Local 382, and the IBPO, alleging discrimination and retaliation under both state and federal statutes, as well as assault, intentional infliction of emotional distress, and defamation. After an eleven-day jury trial in the fall of 2005, the jury found against Leary on the intentional infliction of emotional distress claim. It also found for Dixon and against Flynn and the Local on the discrimination claims and against Leary and the IBPO on the retaliation claims. Dixon lost her assault and defamation claims. In addition to compensatory damage awards totaling $1,205,000, the jury awarded punitive damages of $25,000 against the Local and $1 against Flynn for discrimination, and $1,000,000 against the IBPO and $2,500 against Leary for retaliation. These appeals followed.
II. DEFENDANTS’APPEALS
A. Denial of Rule 50(b) Motions
We review de novo the district court’s denial of the defendants’ Rule 50(b)
*81
motions for judgment as a matter of law. The moving party bears a heavy burden: we will set aside the jury verdict only if “the evidence, viewed in the light most favorable to [Dixon], points so strongly and overwhelmingly in favor of [the defendants], that a reasonable person could not have arrived at [this] verdict.”
Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp.,
Defendants Leary and the IBPO challenge the sufficiency of the evidence for the jury’s findings of retaliation, and the Local challenges the sufficiency of the evidence for holding it liable for discrimination. In all three instances, there was sufficient evidence for the jury to reach the conclusions it did.
1. Retaliation Claims
Dixon brought her retaliation claims under both federal and state law, and the jury’s findings of retaliation do not differentiate between them. Title VII forbids any “employer to discriminate against any of his employees ... [or any] labor organization to discriminate against any member thereof ... because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Under the Massachusetts employment discrimination statute, no “person, employer, [or] labor organization” may “discharge, expel or otherwise discriminate against any person ... because [she] has filed a complaint, testified or assisted in any proceeding” covered by the statute. Mass. Gen. Laws ch. 151B, § 4(4). Further, no “person [may] coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected” by the antidiscrimination statute. Id. § 4(4A).
All three provisions require Dixon to provide evidence that (1) she engaged in protected activity; (2) she suffered some materially adverse action; and (3) the adverse action was causally linked to her protected activity.
McDonough v. City of Quincy,
Both Leary and the IBPO argue that Dixon failed to establish her claims of retaliation because she did not offer evidence that she suffered an adverse action *82 pertaining to her union membership as opposed to her employment. 5 The argument is incorrect: both Title VII and the Massachusetts antidiscrimination statute cover retaliation claims against unions which cause harm in the workplace and outside of it.
While
Burlington Northern
and
Mole
articulated the test for retaliation by an employer, we apply that test to Dixon’s claim of retaliation by the union. This follows logically from the language of both the state and federal statutes. As explained in
Burlington Northern,
the language of Title VII’s retaliation provision, unlike the discrimination provision, is not limited to workplace conditions; it simply prohibits employers — and unions — from discriminating broadly against employees or union members in retaliation for their pursuit of discrimination claims.
As for section 4(4), its more specific language — “to discharge, expel or otherwise discriminate against” — includes the catchall phrase “or otherwise discriminate against,” which should be read as applying as broadly as the similar language in Title VII’s provision.
Cf. Bain v. City of Springfield,
The claims against the IBPO were brought under both state and federal law.
7
The $1,000,000 in punitive damages as
*83
sessed against the IBPO for retaliation exceeds Title VII’s $800,000 statutory cap for punitive and nonpecuniary compensatory damages. 42 U.S.C. § 1981a(b)(3). The Massachusetts employment discrimination statute, however, does not limit punitive damages. Mass. Gen. Laws ch. 151B, § 9;
Dartt v. Browning-Ferris Indus., Inc.,
Dixon presented enough evidence to establish a claim against Leary under section 4(4) and against the IBPO under section 4(4A) of the Massachusetts statute. Dixon presented evidence that Leary took out the TRO against her the day after he found out he was the subject of an internal police department investigation; that Leary’s affidavit requesting the TRO was only a few lines long; that it was based on statements that Dixon claimed she never made; that Leary had not bothered to appear before the court to extend the TRO after the initial fifteen days of its coverage expired; that as a foreseeable result of the TRO, the police department suspended Dixon and confiscated her weapon; and that Dixon had subsequent difficulty on the job as a result of having a TRO on her record. There was clearly sufficient evidence for a jury to determine that Leary retaliated against Dixon by causing her to suffer a materially adverse employment action as required by section 4(4).
Turning to the $2,200,000 compensatory and punitive damages retaliation verdict against the IBPO, the IBPO argues that because the jury found that Dixon had not met her burden of showing that Lyons defamed her, the retaliation claim against the union must be vacated. Specifically, it argues that the comments made by Lyons on his television show cannot be used to prove retaliation. The argument fails for many reasons. The basis for the jury’s defamation verdict is unknown. It may have held, on the defamation claim, that the statements were defamatory but that Lyons did not act with the requisite degree of malice. To the extent the union is arguing that this speech cannot support a retaliation claim, the argument is wrong.
In outlawing retaliation, Congress and the Massachusetts legislature prohibited a type of conduct that can, and often does, include speech. “[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
Ohralik v. Ohio State Bar Ass’n,
Courts have often deemed acts by employers and unions that involved speech to be discriminatory or retaliatory.
See, e.g., Eliserio v. United Steelworkers, Local 310,
There are limits on what speech can be proscribed as retaliatory, but those limits were not violated by the jury verdict. For example, the person or entity accused of discrimination must be allowed to defend himself or itself. Bain,
Lyons did not limit his comments to defending the IBPO or the conduct of its other members. Instead he turned on Dixon, describing her as unfit for her job: “Guess where they have that girl working? And she admits, admits, mind you, to the old four letter word. Course, I wouldn’t dare use it. And she, she is working in a school with children. God forbid.” He repeatedly insinuated that Dixon would pay a cost for pressing her discrimination claims; for example, he argued that Dixon was the only officer who should be suspended and closed one segment of his show by warning, “that girl who made these fabrications, she’s in trouble, she’s in trouble, she’s in trouble.” A jury could reasonably find that such statements, coming from the president of the national union, constituted threats and intimidation that objectively could deter someone in Dixon’s position from pressing her claims, or that those statements interfered with Dixon’s ability to do so by encouraging her colleagues to stand against her.
2. Discrimination Claims
The Local concedes that the Boston trip was a union-sponsored event but argues that it cannot be held liable for what occurred on the bus because Flynn and the Local did not supervise or control the officers on the trip. To the contrary, there was sufficient evidence for the jury to find the Local liable.
The trip was not just union-sponsored; it was organized and executed at every step as a union activity. Lyons, as president of the IBPO, asked Flynn, as president of the Local, to organize a union *85 contingent to support gubernatorial candidate Paul Cellucci, whom the union had endorsed, at the Boston rally. The trip began and ended at the local union hall. The union paid for the bus, with Flynn himself handing the check to the driver and explaining to her the evening’s plans. The driver, in turn, believed Flynn to be in charge and acted on that belief. Flynn used the bus’s microphone to give the officers instructions on what they were to do at the rally. He did not use the same microphone to intervene when things got out of hand on the return bus trip. When they arrived at the rally, Flynn coordinated with the IBPO and other local branches, and the officers marched with union banners. The dinner was organized and paid for by the IBPO, and Flynn put rounds of drinks on the Local’s credit card. When things got heated that evening, the other officers yelled at Dixon and Kumm that “this is a union trip” and that “[o]nly union members belong on this ... bus.” On the trip from Anthony’s to J.J. Foley’s, Flynn kicked a guest off the bus because he was acting rudely and inappropriately towards the bus driver. He was also aware of how volatile the situation on the bus had become later that evening, encouraging Kumm to get off the bus before a “donnybrook” broke out. It is clear that the police officers were at the rally as representatives of the union and that Flynn was in charge of this union event as president of the Local, and there was also evidence that Flynn could exercise his authority when he chose to do so.
The Local cites
EEOC v. Pipefitters Ass’n Local Union,
The Local seems to argue that the police department’s investigation and discipline of the officers suggests that the incident was employment-related, and not union-related, discrimination. If anything, a jury could easily see the union’s inaction and failure to investigate in the face of the city’s proactive response as increasing the union’s liability, not obviating it.
Cf. Woods,
B. Jury Instructions
Defendants argue that the district judge’s jury instructions regarding retaliation and punitive damages were erroneous. Because the defendants did not
*86
raise these objections at trial, we review the instructions for plain error.
Rivera Castillo v. Autokirey, Inc.,
1. Instructions on Retaliation Claims
Leary argues that the jury should have been instructed that his TRO against Dixon could not have been retaliatory as long as it was not baseless, even if he sought it for retaliatory purposes. The First Amendment protects an individual’s right to petition the courts, but that right is not absolute.
See Sahli v. Bull HN Info. Sys.,
Against these background principles, there was no error in the instructions. The judge instructed the jury: “[Dixon] claims that Mr. Leary, not&emdash;re-member, he’s got a right to go to court on the truth. She claims he went to court to interfere with her ability to be a police officer.... She claims that was untrue on Mr. Leary’s part and that it was designed to retaliate, to interfere with her working as a police officer.” The general guidance of the instruction was clear and correct; we do not require magic words.
Johnson v. Spencer Press of Me., Inc.,
2. Instructions on Punitive Damages
The Local, the IBPO, and Leary also argue that the punitive damages instructions were incorrect. Again, these objec *87 tions to instructions were not preserved at trial, and there was no error.
Because the jury verdict form did not differentiate between the state and federal claims, and because the claim must be sustainable under the state statute in order for the entire jury award to be upheld, we analyze the jury verdict on the retaliation and discrimination claims under state law. When “state law provides the basis of decision, ‘the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.’”
McMillan v. Mass. Soc’y for the Prevention of Cruelty to Animals,
The judge repeatedly emphasized in his instructions that punitive damages should be awarded only when the defendants’ conduct was especially outrageous: “Punitive damages are reserved for egregious, that is, especially bad violations of civil rights. And they are designed ... as a punishment.” “But I emphasize to you, punitive damages are to be reserved for the especially bad, the egregious violations of civil rights.” “You would have to find the retaliation was extreme, egregious, and if you do, then as a fine you may impose [punitive damages].” The instructions were appropriate.
III. PLAINTIFF’S APPEAL
Dixon appeals the district court judge’s application of the actual malice standard to her defamation claim.
See New York Times Co. v. Sullivan,
The actual malice standard is appropriate when the subject of the alleged defamation is a public official or a public figure.
Gertz v. Welch,
Dixon concedes that, under Massachusetts law at least, police officers are public officials for defamation purposes.
Rotkiewicz v. Sadowsky,
It is true that the actual malice standard only applies to comments “relating to ... official conduct,”
New York Times Co.,
On his television show, Lyons repeatedly made comments which effectively called Dixon a drunk, a liar, and a promiscuous woman. Whether she lied to the police department’s internal investigators and to the Civil Service Commission does relate to her official conduct, as she participated in the investigation as a Lowell police officer. Indeed, the police department contemplated disciplining Dixon for perjury the same summer she left the force. While the other two accusations pertain mostly to her conduct the night of the bus incident, Dixon was participating in the events that evening as a representative of the police union, leveraging her public stature as a police officer to support the union’s gubernatorial candidate.
Cf. Smith v. Huntsville Times Co.,
While we are more skeptical of the relevance of comments about Dixon’s alleged sexual conduct, there is no basis for separating out a few scattered allusions that might have crossed the divide between public and private. Dixon did not confine her suit to comments about her private sexual conduct. It is enough that the vast
*89
majority of the commentary pertained to official police investigations and actions that could bear on an officer’s qualifications for holding a position of public trust.
See Restatement (Second) of Torts
§ 580B cmt. a (actual malice standard does not apply to a public official “if he is defamed
only
in regard to a purely private matter, not affecting his conduct, fitness or role in his public capacity”) (emphasis added);
cf. Roche,
As for Dixon’s procedural arguments, the record shows that the second judge made an independent ruling that the actual malice standard would apply, after plaintiff clarified that the first judge had not firmly decided the issue. Dixon also argues that she was prejudiced by inconsistent rulings over the course of the trial on what standard would apply. We see no inconsistency, merely a misstatement on which Dixon could not have reasonably relied. The first judge assigned to the case allowed the parties to brief the actual malice issue, but only after noting that “a police officer is an official position.” The second judge told the parties before trial that Dixon would have to prove actual malice.
In giving the jury its preliminary instructions, the second judge did comment in passing that “there’s no claim that Ms. Dixon’s a public officer.” While the slip was unfortunate, it was not significant. Given the judge’s earlier clear statement to the parties, this misstatement could not have set the law of the case.
See generally United States v. Moran,
IV. CONCLUSION
Dixon presented sufficient evidence to establish her retaliation and discrimination claims against Leary and the unions. The judge correctly instructed the jury on retaliatory motive and punitive damages. He also correctly applied the actual malice standard to Dixon’s defamation claim. We affirm. Each side is to bear its own costs.
Notes
. This fact was much disputed at trial, and the jury did not find Pender liable on any count. We include it here, however, as a jury could find it relevant in holding Flynn and the Local liable for discrimination based on Dixon’s overall experience on the bus.
. Flynn, who at the time of the bus incident had been an alternate vice president for the IBPO as well as president of Local 382, had left the Lowell police force in November 1999 to work full time as national vice president at the National Association of Government Employees, of which the IBPO is a division.
. This is the prima facie test under the
McDonnell Douglas
burden-shifting framework as applied to claims brought under both the federal and state retaliation provisions.
See McDonnell Douglas Corp. v. Green,
. The IBPO and Leary briefly stated that Dixon also failed to show a causal link between her protected activity and the alleged retaliatory actions, but the defendants failed to develop this argument and have thus waived it.
United States v. Zannino,
. Even if Dixon were required to make a separate showing of an adverse effect on her union membership, the evidence is sufficient to support such a showing here. Once an active union member, Dixon found herself shunned and shut out of her union.
.Both section 4(4) and section 4(4A) of the Massachusetts statute apply to individuals and corporations alike.
See Mass. Elec. Co. v. Mass. Comm’n Against Discrimination,
. As for non-baseless suits, the Court in
BE & K Construction
reserved the question of whether the NLRB could declare unlawful "any unsuccessful but reasonably based suits that would not have been filed
but for
a motive to impose the costs of the litigation process, regardless of the outcome, in retaliation for NLRA protected activity.”
. In any event, the instructions were also entirely consistent with federal law, which allows punitive damages under Title VII if the employer acted with "malice or reckless indifference to federally protected rights.”
McDonough,