*3 Before RICHARD S. ARNOLD DAVIS,1 HANSEN, Judges, Circuit Judge. District ARNOLD, Judge. S. Circuit RICHARD *4 Plaintiffs, Stanley D. Dowd and Richard Brown, Jr., against suit the filed United America, 286, pursu- Steelworkers of Local VII, seq., ant to Title 2000e et alleging and 42 racial dis- A jury plaintiffs’ crimination. returned a verdict, appeals and the union the District denial of its motion for Court’s2
as a matter of law. We affirm.
I. produced consider the evidence at We fight trial most favorable the Ogden plaintiffs, the verdict-winners. See Works, Inc., v. Wax (8th Cir.2000). bargain- 1,400 ing representative employees for at Goodyear Company’s plant Tire & Rubber Lincoln, In April Nebraska. the union went on a strike which lasted strike, During presi- three weeks. Bowen, union, Hugh dent of the was out of participating negotiations state un- Goodyear. president The vice of the ion, Shotkoski, charge John day-to-day activity. strike days began, A after the strike couple and Mr. crossed the Mr. Dowd Brown picket duty fine.3 It is our to set out what Davis, members, plaintiffs are not union but 1. The Hon. Michael J. United States 3. The Minnesota, Judge they bargaining District for District unit. are members of the sitting by designation. Strom, Lyle 2. E. United States Dis- The Hon. Judge trict for the District of Nebraska.
occurred, ugliness “nigger According and scab.” Tr. at 33. notwithstanding the that, Dowd, at present Mr. Dowd testified to Mr. union stewards language. were first, across he and Mr. Brown drove during name-calling. Similarly, when Mr. line, picketers seven to ten picket Brown testified a week after scab,” “scab,” “fucking and would shout ended, Goodyear employees strike 15 to 25 Tr. at 17. “motherfueking scabs” at them. in the hall he was leaving stood work picketers testified that the shouted He also him “nigger” “fucking nig- and called and numbered,” “you’re “your days are ger.” Although Tr. at 217-18. Mr. Brown wrong doing Id. Mr. Dowd stat- this.” identify could not the source of the re- week, picketers that later on ed marks, he testified that he saw union stew- scab,” began “nigger to shout “black fuck- standing among shouting ards those scab,” “motherfueking scab” as he ing epithets. racial Both Mr. Brown and Mr. picket Mr. crossed the line. Brown work, employ- Dowd testified that while at Although Mr. Dowd testified Tr. ees made announcements over the inter- picket union stewards on the that he saw work,” stating, boy com “scab here at shouted, such he did line when slurs were here,” “you belong don’t and “it’s time for any steward shout- not remember whether Moreover, you to leave.” Tr. at 35-36. Mr. Dowd also stated that *5 ed the slurs. plaintiff witness for the testified that some off to the side of the he saw Mr. Shotkoski employees would wear tee shirts plant, picket line as he drove out of the but in sights with Mr. Dowd’s name the of a any racial slurs he could not recall whether gun “nigger” or the word written on them. were shouted while Mr. Shotkoski was Approximately two weeks after the complained the present. Mr. Dowd about strike, Bowen, called Mr. the Mr. Dowd Goodyear’s management. harassment complained president. union’s Mr. Dowd Goodyear’s management ap- A member of being that he was called “scab” and “fuck- proached Mr. with concerns Shotkoski ing by picketers, and that “it scab” the picket the conduct on the fine. Mr. over getting racial too.” Tr. at 49. Mr. Bowen Shotkoski drafted and circulated notice instructed chief steward on Mr. the abuse, ordering the as well as the verbal report early for and Dowd’s shift to work gestures, stop.4 use of obscenities and stop calling congregating the name and the Mr. Brown testified that he and Mr. entranceway. Mr. the Dowd testified scabs,” “nig- “nigger Dowd were called point that from that onward the chief stew- gers,” “boys” by picketers they and the as entrance- presence ard maintained a through picket line. Tr. at 209- drove employees “off’ Mr. way kept which 11. Mr. Brown also stated that he saw a Likewise, Dowd. Mr. Bowen held a meet- picket union steward on the line on three and instructed ing every steward occasions, and that on of those occa- one stop the them to use their best efforts to “nigger” him and sions the steward called calling congregating name and the his car Tr. at 213. spat on window. gave also entranceway between shifts. He ended, plaintiffs After the strike membership at a message to the union subjected harassment. Mr. were to more meeting. general membership lot, parking testified that in the and Dowd Goodyear also made efforts to end entranceway to passed through as he harassment, disciplining employees for work, call him employees other would scab,” loader,” shouting of racial calling name “fucking boy,” “scab “free day of discouraging The first was circulated on the third notice 4. This was the second disorderly the strike. issued Mr. Shotkoski. conduct law, appeal slurs, halting the offensive announce- which the Court denied. This password system to by creating a ments followed. plaintiffs The also
operate the intercom.
racially
anti-scab and
loaded
II.
testified that
painted on various
spray
were
statements
A.
made aware of
plant.
walls in the
Once
Goodyear had them removed.
graffiti,
As an initial matter we must ad
timely.
appeal
dress whether the union’s
congregat-
Dowd testified that the
Mr.
plaintiffs argue
The
that the union’s mo
entranceway
well as the name
ing
verdict,”
days
tion to “conform the
filed 10
approximately
eight
six to
calling subsided
verdict,
jury’s
after the
and its renewed
Similarly,
of-
weeks after the strike.
law,
judgment
motion for
as a matter of
approxi-
announcements ceased
fensive
judgment,
filed after final
afforded it im
mately five to six weeks after the strike.
permissible
appeal.
extensions of time to
Both Mr. Dowd and Mr. Brown testified
disagree.
We
picket
that whites who crossed the
line
subjected
were not
to the same kind of
50(b)
Rule
of the Federal Rules of
Moreover,
treatment.
after the strike a
provides,
Procedure
Civil
witness testified that he overheard Mr.
Renewing
Judgment
Motion for
After
state,
nigger Stanley
Bowen
“That
Dowd
Trial; Alternative Motion for New Trial.
pain
is a
the ass.” Tr.
If,
reason,
any
the court does not
against
filed suit
the union
grant
a motion for
as a matter
Goodyear
under
1981 and
of law made at the close of all the evi-
VII, alleging
Title
hostile work environ-
dence, the court is considered to have
*6
Goodyear
ment.
settled before trial. The
subject
jury
submitted the action to the
jury
a
in
returned
verdict
favor of the
to the
deciding
legal
court’s later
the
§
union on the
1981 claim and found for
questions
by
raised
the motion. The
the
on the Title VII claim. The
may
request
judg-
movant
renew its
for
$10,000
plaintiffs were each awarded
in
by
ment as a
of
filing
matter
law
a
compensatory damages for emotional dis-
days
entry
motion no later than 10
after
tress. The union filed a motion to “con-
judgment
....
of
verdict,” arguing
compen-
form the
that its
ours.)
4(a)(4)(A)
(Emphasis
of
Rule
the
liability
satory-damages
capped
at
Appellate
Federal Rules of
Procedure
1981a(b)(3)(A),
§
by
zero
42 U.S.C.
50(b)
states that a Rule
motion halts the
that
it should receive a set-off in the
filing
appeal
time for
a notice of
until the
Goodyear’s
amount of
settlement
the
with
court
an
plaintiffs.
enters
order on the motion.
Here,
judgment
the Court entered
on
The District
Court held
the union’s
timely
March
2000. The union filed a
damages liability
capped
was not
at zero
judgment
motion for
as a matter of law on
1981a(b)(3)(A).
§
by 42 U.S.C.
The Court
April
2000. The
ruled on the
Court
held that the limit on the union’s damages
3, 2000,
May
renewed motion on
which
liability
by
was determined
the number of
began
30-day period in
un-
the
which the
members,
its
not
the number of its
appeal.
ion had to file a notice of
The
employees. The Court also denied the set-
30, 2000;
May
union filed its
on
notice
off,
that,
instructed,
holding
jury
the
thus,
appeal
timely.
That the union
plaintiffs damages
awarded the
based sole-
ly
previously
damages-eap
had
raised its
ar-
on the union’s conduct. The union then
filed a
for
in
judgment
gument
motion
as a matter of
a motion made after
verdict
1981a(b)
§
in
provides
U.S.C.
rele-
important.
is not
but before
50(b)
a Rule
filing
part;
of
vant
period
for
entry
of
measured from
motion is
(3) Limitations
judgment.
compensatory
amount of
The sum of the
for
damages awarded under this section
B.
losses,
pecuniary
pain,
future
emotional
appeal,
On the merits
inconvenience,
suffering,
mental
an-
(1)
in
District
erred
argues that the
Court
life,
guish,
enjoyment
of
of
and oth-
loss
compensatory
it hable for
holding
losses,
nonpecuniary
er
amount
(2)
1981a(b)(3)(A),
grant-
not
under section
punitive damages
awarded under this
on the
judgment as a matter of law
ing
section,
exceed,
shall not
for 'each com-
claim,
discriminatory-harassment
plaintiffs’
plaining party—
(3)
allowing
not
the union
set-off
(A) in
a respondent
the case of
who has
Goodyear’s
amount of
settlement
more than
and fewer than 101 em-
assign-
plaintiffs. We address each
20 or
ployees
each of
more calendar
in turn.
ment of error
preceding
or
weeks
the current
calen-
First,
its
argues
the union
$50,000;
year,
dar
damages under
liability
compensatory
1981a(b)(3)(A).
§
The union ar-
1981a(b)(3)(A)
§
is zero. A dis
42 U.S.C.
gues
“respondent”
under
interpretation of a statute is
trict court’s
1981a(b)(3)(A)
just
is defined
as it is
City
Davey v.
subject to de novo review.
2000e(n)—as
employer,
“an
Omaha,
587, 591
Cir.
agency,
organization,”
labor
employment
1997).
that,
The union claims
and so forth.
starting point
interpreting
[O]ur
most,
only
employees;
it
four
there-
has
always
language
statute is
fore,
plain language of the stat-
under the
plain language
If the
statute itself.
damages must be
compensatory
ute its
unambiguous,
lan
the statute is
the union’s inter-
capped at zero. While
legisla
guage is conclusive absent clear
pretation
possible,
of the statute is
Therefore, if
contrary.
to the
tive intent
Looking to the
only possible
one.
clearly
Congress
intent of
can be
*7
dealing with la-
provisions
statute’s other
language,
from the statute’s
discerned
intent,
unions,
Congress’s
as well as to
bor
If, on the
judicial inquiry
must end.
of
likely
think it more
the award
we
hand,
a
is
language
of
statute
other
$20,000
in this case is within
limits
pur
ambiguous, we should consider “the
permissible.
Congress intended to make
subject
matter and the condi
pose,
intended
undisputed
Congress
It
is
affairs which led to its enact
tion of
42
to cover labor unions. See
meaning
of a statute Title VII
ment.” When
2000e(d)-(e). However,
given
§
a
whether
questionable,
it should be
U.S.C.
by
construction and construed to
covered
Title
organization,
sensible
a
labor
underlying purposes
of
upon
effectuate
the number of members
depends
VII
2000e(e) (if
§
the law.
42 U.S.C.
it has. See
hall, it is cov-
hiring
union is not a
labor
982,
McAllister, 225 F.3d
v.
United States
more
if it has 15 or
by
ered
Title VII
(8th Cir.2000) (quoting United States
986
members).
that it is
The union concedes
Cir.1997),
S.A.,
F.3d
998
v.
129
VII,
it has more
by Title
because
denied,
1200, covered
523 U.S.
118 S.Ct.
cert.
(1998)) (internal
Many
organiza-
labor
than 15 members.
citations
1100 However, num- employees members. Under the union’s of it has. thousands of 1981a(b)(3)(A), § if interpretation of even employees ber of a union’s is an inaccurate intentionally unions discrimi- resources, such labor gauge of its size and as Con- nate, may punitive not be liable for they gress recognized describing itself what losses, emo- damages, pecuniary “future subject labor unions would be to Title VII. inconvenience, suffering, men- pain, tional A truer indication of a union’s size and life, enjoyment of of anguish, tal loss resources is the number of members it .42 losses U.S.C. nonpecuniary other 1,400 Accordingly, a union has. with 1981a(b)(3). § exempt any members would not be from Thus, liability. compensatory damage we in the union’s do believe We compensatory hold that the union’s dam- terpretation comports Congress’s with in liability 42 age capped is not at zero under 42 purpose amending tent and U.S.C. 1981a(b)(3)(A). § if caps, finding § After that additional fed U.S.C. What un any, apply question eral remedies were needed to deter to unions is a we need discrimination, harassment $20,000 lawful not decide. The award of made in § “to Congress amended U.S.C. this case is well within the lowest tier appropriate remedies for inten provide ($50,000)specified by the statute. We de- and unlawful harass tional discrimination “respon- definition of cline insert Act workplace.” Rights ment in the Civil 2000e(n) §' mechanically dent” in into the 102-166, § No. 3. Title Pub.L. 1981a(b). § damages-cap provision only employers 15 or applies with VII interpreted according should Words be employees. more See their content and in furtherance of the 2000e(b). Thus, every employer § cov statutory purpose here, damages to allow — by Title can for at least ered VII be liable within certain limits. It makes no sense compensatory damages some amount employees to use the numbers of as the 1981a(b)(3)(A). The un under cases, damages caps criterion for union interpretation ion’s the statute would very question when the whether the stat- having create the anomalous result of given on ute covers turns numbers VII, but, labor union liable under Title Congress could make such a members. every employer unlike covered Title wished, per- if choice but we are not VII, exempt any compensatory-dam from note, that it has done so. suaded We liability. ages We do not believe it was 1981a(b) addition, if is read with Congress’s intent to treat labor unions literalness, no absolute there would be disparately. employers so cap in A union this case. The District Court’s conclusion employees, subject which is or fewer but liability capped that the is not union’s to Title because it has 15 or more VII *8 persuasive. zero is The District Court members, simply among is the classes Congress’s reasoned that decision to enact in damages-cap of listed “respondents” statutory compensatory limitations on provision. protect damages policy was a decision to Next, we consider whether the employers compen enormous small from denying judgment erred in District Court satory-damages verdicts. The maximum as a matter of law to the union on the employer of which an amount plaintiffs’ discriminatory-harassment claim. em could be liable is determined de novo a district court’s denial We review resources, indi ployer’s of which size is an a of of a motion for as matter way The an cation. best determine Inc., Foods, 151 employer’s is to ascertain the number law. Smith v. Riceland size
1101
Cir.1998).
(8th
in
class. The union
813,
bership
protected
re
a
We will
F.3d
818
if,
reviewing
argues
plaintiffs
all
that the
suffered the ha-
court
after
verse a district
light
favorable to rassing
most
treatment not because of their
the evidence
all
party
assuming
and
non-moving
race,
they
picket
but because
crossed the
non-moving
in the
conflicts were resolved
disagree.
line. We
favor,
giving
to the non-movant
party’s
trial
The evidence at
showed that
inferences, we
of all reasonable
the benefit
epithets
plain
racial
were shouted at the
juror
that no reasonable
could
“determine
they
picket
tiffs as
crossed the
line and
non-moving
a verdict
have returned
plant. Racial slurs were directed to
Bise, 173 F.3d
party’s favor.”
v.
Goff
intercom,
via the
dis
plaintiffs
ward the
(8th Cir.1999).
1068, 1073
shirts,
played
painted
plant
on tee
on
Rights
Title VII of
Civil
Carter,
(stating
walls.
sive to alter the
prove
Goodyear
tiffs failed to
at trial that
and create an abusive work
employment
’ Quick,
or
have known of the harass-
90 F.3d at
knew should
ing environment.”
21,
Harris,
proper
114
to
remedial
510
at
ment and failed
take
(quoting
U.S.
367).
juror could action. The union asserts that federal em-
Here a reasonable
S.Ct.
per
ployment
presumes
employer
that the
workplace
that
law
have found
ridicule,
discrimination,
workplace, and therefore it
controls the
meated with
subjected
responsibility to make sure it is
were
to
has the
plaintiffs
insult. The
Carter,
physical
Relying
of
violence
free from harassment.
on
racial slurs and threats
union contends that
Mr. Dowd
they
time
into and out of the
because
each
drove
picket
employees alleging
that the
and Mr. Brown are
plant. There was evidence
they
pathway
discriminatory employment practices,
in the
ers threw tacks down
spat
may
against
only they
on
car
the union
if
plaintiffs’
cars and
their
succeed
addition,
employer
prove
engaged
In
there was evidence
that
dis-
windows.
criminatory employment
plaintiffs
practices,
were fearful for their
effect,
plaintiffs
In
union
personal safety.
took some affirmative action
“run a
gauntlet
practices
pre-
[racial
were made to
which either caused these
or
employer
remedying
epithets]
privilege
return for the
of be
vented the
from
ing
living
and make a
them. See
liable because jury The union contends that the awarded argues The union that co-worker conduct. damages for all the emotional distress it of an responsible it is not for the acts believed the suffered as a conse employee agent is an employee unless of the events which the union and quence the union autho- of the union or unless permitted Goodyear jointly caused or rized, encouraged, specific ratified the or union, happen. non-settling as the The un- employee According conduct. to the defendant, argues is entitled to have the ion, of either in this there is no evidence by paid amount it set off the amount owes Alternatively, argues the union case. by Goodyear. disagree. We there is no evidence union officers a jury was instructed to render epithets being knew that racial were solely upon what based strike, that, during shouted when jury determined to be the union’s con- leadership the union learned of the harass- jury that if duct. The instructions stated plant, they ment took effective re- liable, jury the union and if it found medial action. preponderance of the evi- found “from contrary, plaintiff that either suffered emo- On the there is suffi dence during tional or after the strike cient evidence the record to allow distress juror proximately caused the ra- reasonable to conclude which was encouraged cially hostile work environment for which authorized or unlawful jury] ... found defendant Local No. pres harassment. Union stewards were [the jury] should picket responsible, [the ent on the line and the entrance- 286 then for that dis- way plant plaintiff damages when the racial slurs were award such *11 1104 (J.A.) Hence, Appendix gress clearly can be Joint discerned from the
tress.”
language,
judicial
statute’s
jury
inquiry
not instructed to award dam-
McAllister,
must end.”
v.
plaintiffs
United States
ages
compensate the
for their
to
(8th Cir.2000)
225 F.3d
986
(emphasis
only
injury of
injury,
total
for the
but
added). See also
Underwriters
proximate
union was the
cause.
which the
Hartford
Bank, N.A.,
Ins. Co. v. Union Planters
530
Consequently, to allow the union to receive
1, 6,
U.S.
120 S.Ct.
L.Ed.2d
Goodyear’s
a credit in the amount of
set-
(“[Wjhen
(2000)
language
the statute’s
plaintiffs
less
tlement would accord
plain, the sole function of the courts —at
recovery.
a full
than
disposition
least
required by
where
III.
text is not
to
absurd —is
enforce
accord-
terms.”).
this,
ing to its
From
our court
reasons,
foregoing
For the
we hold that
“employees” really
concludes that the term
compensatory damages are not
the union’s
damages
means “members” when the
stat-
capped
zero
under
applied
organizations.
ute is
to labor
The
1981a(b)(3)(A),
§
the District Court
fails, however,
court
any
to delineate
con-
denying
did not err in
the union’s renewed
gressional
contrary
plain
intent
to
lan-
law,
judgment
motion for
as matter
guage
support
of the statute to
its strained
union is not entitled to a set-
and
construction,
any
let alone
clear intent.
In
off.
view,
my
Congress’s use of the term “em-
is affirmed.
ployees” to
“respondents”
determine which
subject
are
to damages
any
could not be
HANSEN,
Judge, dissenting in
Circuit
unambiguous.
more clear or
Because “the
part
concurring
part.
and
face,
unambiguous
statute is
on its
respectfully
portion
I
dissent from that
language of the statute
is conclusive as
11(B)
subpart
opinion
court’s
of the
intent,
legislative
and
thus [can not]
we
the court concludes
the statu-
wherein
ordinary
meaning”
abandon the
...
of the
in 42
tory
“employees”
term
“employees”
replace
term
it with the
1981a(b)(3) really
§
means “members”
Smith,
term “members.”
States v.
United
liability
de-
organization’s
when a labor
(8th Cir.1994).
With all
I
readily
termined.
concur
the balance
views,
respect
my
due
brothers’
opinion.
of the court’s
court’s “construction ...
defeat[s]
plain language of the statute and [does]
outrageously egregious
As
as the evi-
any clearly
legisla-
foster
articulated
supporting
jury’s
dence
verdict shows
contrary.”
tive intent to the
Id.
racially
motivated conduct of some of
the union members and union stewards to
respectfully disagree
I' also
with the
been,
irrespective
strong-
have
of how
attempt
“respondent”
court’s
define
I
ly
believe the
should be com-
1981a(b)
§in
differently
used
than it is
pensated for their emotional
an
distress as
VII,
2000e(n),
defined
Title
which
public policy,
abstract matter of
I believe
employer, employ-
it to mean “an
defines
end,
inquiry begins,
our
and must
with the
agency,
organization.”
[or]
ment
labor
“
statute,
plain language
of the
interrelationship
proximi-
‘The
and close
though
even
I dislike the result that lan-
statute,
ty
provisions
of these
guage compels in this case. As the court
1981a(b)
2000e,]
present[
a clas-
[§
]
notes,
plain language
of the stat-
“[i]f
application
sic case for
of the normal rule
unambiguous,
language
ute is
is con-
statutory
construction that
identical
legislative
clusive
clear
intent to the
parts
absent
words used
different
of the same
Therefore,
contrary.
if the intent of
act are intended to have the same mean-
Con-
”
remedies,
existing
Tribe v.
as Title VIPs then
when
Santee Sioux
ing.’
Flandreau
*12
(8th
States,
949,
opted
damages caps
952
Cir.
to
197 F.3d
later
define
United
1999)
Lundy,
v.
516 U.S.
(quoting
employees
Comm’r
on the number of
a re-
based
647,
235, 250,
611
has,
116 S.Ct.
133 L.Ed.2d
spondent
not the number of union
1231,
denied,
(1996)),
530
120
cert.
U.S.
organization already
members
a labor
(2000).
2662,
Congress enacted Title VII view, my did not intend the same conse- organizations with at least making labor quences. members liable for discrimination 100 1972, Congress In employment practices. plain language Nor does the stat- organi amended Title VII to include labor an ute create either absurd result or an at least fifteen members with zations with than anomalous result. Unions with fewer in Title reach. See Pub.L. No. 92- VU’s (but employees fifteen more than fif- with 261, 2(4), § at 42 codified U.S.C. members) only entity are teen not 2000e(e). § aware of how it had Well by exempt Title otherwise covered VII it had organizations defined those labor any compensatory damages liability from subject respondents, made Title VII An plain language. under the statute’s Congress Rights later enacted the Civil fif- “employment agency” with fewer than 1991, authorizing awarding
Act of
employees
exempt
teen
is also
from com-
placing caps
compensatory damages and
pensatory damages,
though such an
even
damages
on the number of
on those
based
employment agency (say
proprietor-
a sole
by respondent.
employees employed
See
ship agency
employees)
no
is other-
102-166,
at 42
Pub.L. No.
codified
subject
fully
require-
wise
to Title VII’s
1981a(b)(3).
Irrespective of how
and its other remedies. See
ments
outcome,
much we dislike the
or how we
2000e(c),
(n);
2000e-2(b);
§§
case,
not at
equities
see the
we are
2000e-5(g).
liberty to rewrite the statute. United
dispute
do
United
(8th
McIntosh,
States v.
236 F.3d
Local No. 286
Steelworkers
America
Cir.2001) (‘“Courts
obligated to re
are
such,
employees.
than fifteen
As
had less
embellishing
frain from
statutes
insert
plain language
of the statute mandates
ing language
Congress
opted
has
liability
compensatory
union’s
Liberty
that the
(quoting
omit.’”
Root v. New
Cir.2000))),
Dist.,
I
Hosp.
capped
at zero.
would re-
—
denied,
-,
t.
U.S.
the mo-
verse the district court’s denial of
cer
(2001).
1964,
1942. knew which subject previously zations it had made so, Title and how it had done as well VII court, Daggitt v. United Food and Com- passing I note in that a recent decision of our SPRENGER, Appellant, J. William
v. BANK FEDERAL HOME LOAN MOINES, Appellee. OF DES No. 00-3079. *13 Appeals, States Court United Eighth Circuit. April 2001. Submitted: Filed: June Union, 304A, purpose of employees of the union for the mercial Workers Int'l Local (8th Cir.2001), “employer” in applying in the cir- the definition of F.3d 981 held that case, 2000e(b). of that union stewards were cumstances