Filed: Jul. 03, 2014
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Summary: Case: 12-13389 Date Filed: 07/03/2014 Page: 1 of 37 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-13389 _ D.C. Docket No. 8:09-cv-02621-JSM-TBM ANTHONY BOOTH, JERRY BROWN, Plaintiffs-Appellants, versus PASCO COUNTY, FLORIDA, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 4420, d.b.a. Pasco County Professional Firefighters, Defendants-Appellees. _ No. 12-14194 _ D.C. Docket No. 8:09-cv-02621-JSM-TBM Case: 12-13389 Date Filed: 07/03/2014 Page: 2 of 37 ANTHONY
Summary: Case: 12-13389 Date Filed: 07/03/2014 Page: 1 of 37 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-13389 _ D.C. Docket No. 8:09-cv-02621-JSM-TBM ANTHONY BOOTH, JERRY BROWN, Plaintiffs-Appellants, versus PASCO COUNTY, FLORIDA, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 4420, d.b.a. Pasco County Professional Firefighters, Defendants-Appellees. _ No. 12-14194 _ D.C. Docket No. 8:09-cv-02621-JSM-TBM Case: 12-13389 Date Filed: 07/03/2014 Page: 2 of 37 ANTHONY ..
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Case: 12-13389 Date Filed: 07/03/2014 Page: 1 of 37
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13389
________________________
D.C. Docket No. 8:09-cv-02621-JSM-TBM
ANTHONY BOOTH,
JERRY BROWN,
Plaintiffs-Appellants,
versus
PASCO COUNTY, FLORIDA,
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 4420,
d.b.a. Pasco County Professional Firefighters,
Defendants-Appellees.
________________________
No. 12-14194
________________________
D.C. Docket No. 8:09-cv-02621-JSM-TBM
Case: 12-13389 Date Filed: 07/03/2014 Page: 2 of 37
ANTHONY BOOTH,
JERRY BROWN,
Plaintiffs-Appellees-Cross Appellants,
versus
PASCO COUNTY, FLORIDA,
Defendant-Cross Appellee,
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 4420,
d.b.a. Pasco County Professional Firefighters,
Defendant-Appellant-Cross Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(July 3, 2014)
Before MARTIN and ANDERSON, Circuit Judges, and FULLER,* District Judge.
____________
*Honorable Mark E. Fuller, United States District Judge for the Middle District of Alabama,
sitting by designation.
2
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ANDERSON, Circuit Judge:
Anthony Booth and Jerry Brown (together “Plaintiffs”) are employees of the
Emergency Services Department (“Department”) in Pasco County, Florida
(“County”), and members of the International Association of Firefighters Local
4420 (“Union”). Plaintiffs sued the County and the Union claiming violations of
Title VII and the Florida Civil Rights Act.1 The case went to trial on Plaintiffs’
retaliation claims. A jury returned verdicts against both defendants.
The district court subsequently granted the County’s motion for judgment as
a matter of law on the ground that there was insufficient evidence of a retaliatory
motive. The court also denied Plaintiffs’ motion for a new trial against the County.
Plaintiffs appeal both of these decisions.
The district court denied the Union’s motion for judgment as a matter of law
or, in the alternative, a new trial or reduction of the damages awarded against it.
The Union appeals that decision. Plaintiffs cross-appeal the district court’s refusal
to award equitable relief against the Union. 2
1
Plaintiffs also sued the Union under 42 U.S.C. § 1981, but that claim is not at issue
on appeal. Decisions construing Title VII guide our analysis of the Florida Civil Rights Act.
Holland v. Gee, 677 F.3d 1047, 1054 n.1 (11th Cir. 2012).
2
Plaintiffs also cross-appeal the district court’s refusal to require that the Union post
a supersedeas bond pending the outcome of this appeal. That aspect of Plaintiffs’ cross-appeal is
dismissed as moot.
3
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For the following reasons, we reverse the district court’s entry of judgment in
favor of the County and affirm in all other respects.
I. FACTS AND PROCEDURAL HISTORY
We recount a relevant subset of the facts established at trial.
A. Plaintiffs’ Grievances About Their Supervisor
Booth and Brown were Department emergency-services workers assigned to
Station 14. In June 2007, Booth filed a Department grievance against the captain
who supervised the station. The captain’s boss had warned Booth that he would be
transferred if he filed a grievance, and Booth was in fact transferred, against his
wishes, pending investigation.
In his grievance, Booth named Brown as a witness. The station captain
allegedly threatened Brown as a result, causing Brown to file a grievance of his
own in July 2007.
B. The County’s Response to Plaintiffs’ Grievances
In November 2007, the offending captain was disciplined and transferred out
of Station 14. Booth returned to Station 14, but he was assigned, against his
wishes, to work on an ambulance rather than a fire engine. Coworkers who had
submitted written statements on Booth’s behalf had been transferred out of Station
14, and the only coworker who had not submitted a written statement remained.
Brown was transferred to another station that was physically unpleasant and in a
4
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state of some disrepair. All of these reassignments were for a minimum of six
months. Department officials testified that these reassignments were part of an
attempt to address a “country club” atmosphere that predated the subject of
Plaintiffs’ grievances.
Plaintiffs and their coworkers believed the transfers to be retaliatory. They
complained to the County and sought help from the Union, to no avail. On April
11, 2008, Plaintiffs filed charges against the County and the Union with both the
EEOC and the Florida Commission on Human Rights (“FCHR”). In the charges,
Plaintiffs complained about the actions of their former captain, as well as the
County’s and the Union’s responses to their internal complaints.
C. The Union’s “Update on Legal Issues” Memo
Union President Ralph Grant subsequently received unsolicited phone calls
about a rumored lawsuit against the Union and the identity of the parties involved.
Grant testified that the membership generally demanded to be told about legal
matters in which the Union was involved. He said that he wanted to respond to the
rumors and to inform the members about the situation, the Union’s position, the
Union’s plan, and the potential costs.3
3
The Union is funded through membership dues. The Union may also assess
additional fees if the assessment is approved by a majority of the members in good standing at
least thirty days after they are notified of a vote.
5
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On April 21, 2008, Grant emailed Department Chief Anthony Lopinto asking
him to forward an attached memorandum (“Memo”) to all members of the Union’s
bargaining unit, nearly all of whom were Union members, 4 pursuant to a prior
agreement between the Union and the County regarding distribution of Union
communications. The subject line of Grant’s email was “Discrimination.” 5 The
title of the Memo was “Update on Legal Issues.” Grant had previously had the
Memo reviewed by the Union’s attorneys. At trial, he testified that he had talked to
an attorney about how to respond to Plaintiffs’ charges. At a prior deposition,
however, he testified that he did not recall being advised on whether to comment on
Plaintiffs’ charges. 6
The same day, Chief Lopinto forwarded the Memo to County Personnel
Chief Barbara DeSimone and Department Personnel Chief Cynthia Holland for
review. The following day, on April 22, DeSimone emailed Grant and asked him to
make edits to portions that did not discuss Plaintiffs. DeSimone said that Grant
could then forward the Memo to Lopinto for dissemination. Two days later, on
April 24, Grant emailed a revised copy of the Memo to DeSimone. In the body of
4
The Union is the exclusive bargaining agent for most of the Department’s
approximately four hundred employees. Membership is voluntary, but Union members
comprised approximately 95% of the force at the time of trial.
5
The Memo discussed five matters, one of which was Plaintiffs’ charges. None of
the other matters involved alleged discrimination.
6
Plaintiffs’ counsel read this portion of the deposition at trial.
6
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the email, he asked DeSimone to “[c]heck this and let me know. I think our
members have a right to know about the charges two of their peers are making
against both the Union and the County.” The record does not reveal whether
DeSimone responded to this email.
One day later, on April 25, Chief Lopinto emailed the revised Memo to
station email addresses, where it could be accessed by Department employees
working at each station. An unknown person, or persons, also posted the Memo on
at least some station bulletin boards with Plaintiffs’ names highlighted. The Memo
read, in relevant part, as follows: 7
FLSA Lawsuit
. . . [A]ll those entitled to back-pay will be receiving 150% of what is
owed from June 14, 2005. . . .
ULP on Cody Study
. . . [W]e know that there are some members that have expressed
concern that their back-pay calculations may be wrong. Those
concerns should be submitted to the union. . . .
ULP on Impasse Hearing Cancellation
. . . [T]he Executive Board and our attorney’s [sic] feel the cost in
pursuing it may not be worth the remedy. . . .
ULP on Changing Insurance Coverages
This charge has been dropped . . . .
7
Only the last matter discussed is relevant to this case. We include excerpts
regarding the other matters only to provide context.
7
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EEOC Discrimination Charges
Local 4420 members Jerry Brown and Anthony Booth have filed a
Charge claiming unspecified discrimination with the U.S. Equal
Employment Opportunity Commission against the Union and the
County. The Executive Board and our attorney feel it is a frivolous
claim with no grounds for support and we are extremely confident in
winning but will still have to defend the charges. This could be very
costly and generate a legal bill of $10,000 or more. If it becomes too
costly the Union may have to assess its members additional fees to
offset the cost. We will update you as it progresses.
The last quoted paragraph names Plaintiffs. Plaintiffs testified that they did not
recall the Union previously naming any individual who was involved in a dispute.
They also introduced examples of communications in which individuals were not
named. 8 President Grant testified that he had probably named individuals in prior
updates, but he could not recall any examples (other than when he had named
himself). He also testified that he named Plaintiffs in order to inform the members
and respond to rumors because the members had a right to know who was involved.
The last quoted paragraph of the Memo also states that it could cost the
Union $10,000 or more to defend against Plaintiffs’ charges and that it may be
necessary to assess additional fees from the membership. President Grant testified
that, at the time of trial, this matter had cost substantially more than $10,000 but
had not resulted in an assessment of additional fees.
8
None of these examples involved a dispute between the Union and its members.
All involved disputes between Union members and the County.
8
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Plaintiffs maintain that nearly all of their coworkers subsequently shunned
them. For example, Brown testified that one coworker said “somebody needed to
shut [his] f’ing mouth before their dues went up” and that another tried to provoke
him into a fight. Plaintiffs maintain that their superiors and coworkers worked to
deny them access to available vacation days, voluntary overtime, and “shift
swaps.”9 On May 24, 2008, an unknown person also put a custom-made sticker
with the words “Department Asshole” on Brown’s locker. Brown maintains that
this incident was under-investigated and characterized the incident, in a complaint
to Department Chief Lopinto dated May 31, as part of the “continued harassment
and a hostile work environment” that had resulted from the Memo. Both Plaintiffs
allegedly faced resistance when requesting transfers to different stations. Plaintiffs
and their wives also testified to the emotional impact that this alleged ostracism had
on them throughout the relevant period.
In October 2008, Plaintiffs filed additional EEOC and FCHR charges about
the Memo, the harassment that it allegedly caused, and the alleged difficulty that
Plaintiffs faced in convincing coworkers to “swap shifts” with them. Union
President Grant subsequently ordered the Memo removed from station bulletin
9
A “shift swap” is a voluntary exchange of shifts between coworkers, subject to
supervisor approval.
9
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boards, but Brown testified that it was still posted in Booth’s station as of January
2009.
D. The Instant Lawsuit
Plaintiffs filed the instant lawsuit in November 2009. Shortly thereafter,
someone posted a newspaper article about the lawsuit on fire station bulletin
boards. In January 2010, Brown became aware of the postings and complained
about them on the ground that they had been posted without the required
authorization. When the postings were not removed, Brown removed them himself
and tore them up.
At Booth’s station, someone retrieved the discarded posting, taped it back
together, and re-posted it. Brown went to the station, removed the article, and
shredded it. Someone then photographed the shredded article, put the photograph
on the station computer as “wallpaper,” and emailed the photograph to a captain at
Booth’s station, telling him to “[l]ook at what your shit-bag firefighter did.” Brown
understood this to be an accusation against Booth, and he went to the station to say
that it was he (Brown) who had shredded the article. He was subsequently subject
to disciplinary investigation for taking the matter into his own hands. He then filed
a grievance about the newspaper article and associated harassment, but the
grievance was denied as untimely.
10
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In April 2010, four months after Brown had reported the posting of the
newspaper article, the County reprimanded captains who had done nothing about it
and had their superiors investigate whether any unauthorized postings remained.
Brown maintains that this incident was under-investigated.
In March 2010, Brown filed additional EEOC and FCHR charges, alleging
retaliation based on the newspaper-article-posting incident. In May 2010, Booth
filed his own additional EEOC and FCHR charges, alleging retaliation based on the
continued posting of both the Memo and also newspaper articles about Plaintiffs’
lawsuit. Plaintiffs maintain that the retaliatory harassment against them continued
and that the County took no remedial steps.
E. Plaintiffs’ Affidavits and the County’s Response
On July 27, 2011, Plaintiffs filed affidavits in the instant lawsuit in support of
their opposition to the Union’s motion for summary judgment. In their affidavits,
Plaintiffs expressed concern that they could no longer trust their coworkers and
feared that their coworkers would subject them to, or fail to protect them from,
dangerous or even life-threatening situations.10
10
For example, Booth suggested that his coworkers might manipulate the water
pressure on a fire hose that he was carrying or decline to rescue him from a collapsed structure.
Brown suggested that his coworkers might be intentionally irresponsible with station equipment
that he was later scheduled to use.
11
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The County’s attorney apparently emailed these affidavits to County
Personnel Manager DeSimone (and one other individual) on August 22, 2011,
along with the following comment:
I am somewhat concerned about their attestation that they claim to feel
unsafe and am concerned that while we certainly do not want to
retaliate in any way, Chief Lopinto still has a department to run and
safety for the public is paramount. It seems like some kind of meeting
in which cooperation is emphasized both by these two plaintiffs and by
their co-workers and captains might be in order. I am happy to discuss
with you.
DeSimone testified that she considered having such a meeting and discussed it with
Department Chief Lopinto. She did not think that such a meeting ever took place,
however, and she explained that it would have been difficult to schedule one
because a third of the force was always on duty.
County Risk Manager Jane Calano worked under DeSimone. Calano
testified that, based on Plaintiffs’ affidavits, she became concerned that their fear
would render them unable to perform their duties. On August 24, 2011, she
emailed an account manager at the company that manages the County’s Employee
Assistance Program benefits. In her email, Calano explained the situation as
follows:
We have two firefighters who have filed a lawsuit against the County
and their Union for retaliation. They have filed affidavits with the
Court that they are now forced to work in “an untrustworthy
environment.” They claim they no longer feel safe because their co-
workers may not protect them in an emergency situation and so on.
Do you think this is a situation that would lend itself to an assessment
12
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of these two individuals to determine the legitimacy and the depth of
their fears?
Calano testified that, based on the account manager’s response, she proceeded with
the process of subjecting Plaintiffs to fitness-for-duty examinations. She did not
speak with Plaintiffs or their supervisors before recommending the examinations.
Department Chief Lopinto testified that he and DeSimone jointly made the
final decision to subject Plaintiffs to fitness-for-duty examinations. Lopinto said
that some of the concerns Plaintiffs expressed in the affidavits were “preposterous”
and “paranoid.” He questioned whether Plaintiffs possessed the “clear mind” and
focus necessary to protect public safety. He did not speak with Plaintiffs or their
supervisors before ordering the examinations.
When Plaintiffs arrived at work on August 31, 2011, they were informed by
coworkers that they should call Department Personnel Chief Holland regarding
fitness-for-duty examinations. Brown testified that it was Department policy to
keep such examinations confidential. Plaintiffs called Holland and were told to
report to Calano. Calano told Plaintiffs that they would not be allowed to return to
work until they had successfully completed fitness-for-duty examinations.
Plaintiffs were required to sign a statement including the following passage:
Due to statements made in my recent affidavit that I fear for my safety
in the workplace and the possibility that I may pose a risk to myself or
others if I am unable to perform the duties of my position, I . . . agree
that my continued employment with Pasco County is expressly
conditioned upon my agreement to submit to an assessment by a
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Professional Counselor to determine my Fitness for Duty and to
address personal stress and/or safety related issues. . . .
I understand that my failure to comply with any of the terms of this
letter shall constitute sufficient grounds for disciplinary action up to
and including termination.
Plaintiffs were sent to an initial evaluation and were required to attend six follow-
up visits. There is a dispute regarding who ordered the six follow-up visits. Calano
testified that it was the counselor’s decision. Plaintiffs testified that the counselor
told them they were fit for duty and did not meet any of the criteria for the
examination. In any event, Plaintiffs were permitted to return to work once Calano
received word that they did not pose a risk to themselves or others.
F. Plaintiffs’ Retaliation Claims Are Tried by Jury
Plaintiffs’ retaliation claims went to trial by jury. The district court provided
the jury with four verdict forms—one for each pair of plaintiffs and defendants.
Each verdict form asked whether the defendant in question had taken any “adverse
actions” against the applicable plaintiff and, if so, to identify them. The court had
previously instructed the jury that an adverse action was “something that would
have dissuaded a reasonable [worker or Union member] from making or supporting
a complaint of discrimination.” 11
11
The court had also instructed that the defendants could be liable for the conduct of
Plaintiffs’ coworkers and fellow Union members if the defendants “either orchestrated the
retaliation or knew about the retaliation and acquiesced in it in such a manner as to condone and
encourage the co-workers’ actions.”
14
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The jury wrote that the Union took the following adverse actions toward
Plaintiffs: “NAMING PLAINTIFF[S] IN THE LEGAL UPDATE MEMO AND
EDITORIALIZING ABOUT POSSIBLE RAMIFICATIONS TO UNION
MEMBERS.” The district court understood the jury to have interpreted the Memo
as a “call for reprisal” against the two specifically identified Plaintiffs. The jury
wrote that the County took the following adverse action toward Plaintiffs:
“FORCING PLAINTIFF[S] TO SIGN A STATEMENT UNDER THREAT OF
TERMINATION WHICH RESULTED IN A FITNESS FOR DUTY
EXAMINATION.”
The court had previously instructed the jury that, in order to establish
unlawful retaliation, Plaintiffs were required to prove that the adverse action would
not have occurred “but for” Plaintiffs’ protected activity. On the verdict forms, the
jury found that the aforementioned adverse actions were taken because of Plaintiffs’
grievance(s) or EEOC charge(s), which the parties had stipulated were “protected
activity” under both Title VII and the Florida Civil Rights Act.
The verdict forms asked what damages, if any, Plaintiffs should be awarded
for various categories of harm. The jury wrote that Booth should be awarded $500
in backpay and $10,000 for emotional pain and mental anguish from the County.
The jury wrote that Brown should be awarded $500 in backpay and $12,000 for
emotional pain and mental anguish from the County. The jury wrote that each
15
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plaintiff should be awarded $75,000 for emotional pain and mental anguish from
the Union. On a separate form, completed later, the jury found that each plaintiff
should be awarded $8000 in punitive damages from the Union.12
G. The District Court Rules on Post-Trial Motions
The district court granted the County’s motion for judgment notwithstanding
the verdict after concluding that there was insufficient evidence to support the
finding that the County ordered the fitness-for-duty examinations for a retaliatory
purpose. The court also denied Plaintiffs’ motion for a new trial against the
County, without a written opinion. Plaintiffs appealed those decisions.
The Union moved for judgment as a matter of law on multiple grounds,
including that the First Amendment precluded an entry of judgment on the verdict
as returned. In the alternative, the Union moved for a new trial or a reduction in
damages. The district court denied the Union’s motion, and the Union appealed.
Plaintiffs cross-appealed the district court’s refusal to grant equitable relief against
the Union. We will address each aspect of these appeals in turn.
II. THE COUNTY’S MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT
The jury found that the County subjected Plaintiffs to fitness-for-duty
examinations because of their grievances and charges against the County. The
12
Plaintiffs did not seek punitive damages against the County. See 42 U.S.C.
§ 1981a(b)(1) (providing for punitive damages against defendants “other than a government,
government agency or political subdivision”).
16
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district court held that there was insufficient evidence to support this finding. We
disagree. We review de novo the order granting the County’s motion for judgment
as a matter of law. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,
1192 (11th Cir. 2004). We review all of the evidence in the record and draw all
reasonable inferences in Plaintiffs’ favor.
Id. at 1192–93. Judgment as a matter of
law was appropriate if there was no legally sufficient basis for the jury’s finding.
See
id. at 1192 (citing Fed. R. Civ. P. 50).
“Title VII retaliation claims require proof that the desire to retaliate was the
but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr.
v. Nassar, --- U.S. ---, ---, 133 S. Ct. 2517, 2528 (2013). The County maintains that
it ordered the fitness-for-duty examinations because of legitimate safety concerns.
The crucial question is not whether these concerns were well-grounded but whether
they actually motivated the County. See Rojas v. Florida,
285 F.3d 1339, 1342
(11th Cir. 2002) (per curiam). If the jury was required to believe the County’s
proffered explanation, then Plaintiffs failed to show that “the desire to retaliate was
the but-for cause.” Nassar, --- U.S. at
---, 133 S. Ct. at 2528. On the other hand, if
the jury was permitted to disbelieve the County, it may have been permitted to infer
that the County’s actions were retaliatory. See Reeves v. Sanderson Plumbing
Prods., Inc.,
530 U.S. 133, 147,
120 S. Ct. 2097, 2108 (2000) (“Proof that the
17
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defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination . . . .”).
Although the factual question is extremely close, we conclude that the jury
was permitted to find the County’s action retaliatory. Plaintiffs’ affidavits may
have raised serious concerns regarding their fitness for duty, but there was evidence
tending to establish that at least DeSimone and Calano believed Plaintiffs’
statements to have a possible basis in reality. 13 Despite this possibility, the County
ordered the examinations without ever speaking to Plaintiffs or their supervisors.
The County also failed, entirely, to investigate the potential factual basis for
Plaintiffs’ statements, even after Plaintiffs had been declared fit for duty (and
presumably not “paranoid”).
In addition, both Plaintiffs testified that, according to the professional
counselor, they did not meet the criteria for the examination. There was also a
dispute of fact regarding who ordered the six follow-up visits—Calano or the
counselor. Finally, there was an ongoing dispute at trial regarding the sufficiency
of the County’s investigation of Plaintiffs’ prior complaints and grievances. Since
“‘[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge,’” we
13
DeSimone considered scheduling a meeting to emphasize cooperation among both
Plaintiffs and their coworkers. Calano asked the benefits program account manager if the fitness-
for-duty examinations would be an appropriate way to assess “the legitimacy and the depth” of
Plaintiffs’ fears.
18
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must resolve all of these factual disputes in Plaintiffs’ favor. See Reeves, 530 U.S.
at 150–51, 120 S. Ct. at 2110 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S.
242, 255,
106 S. Ct. 2505, 2513 (1986)). We recognize the potential safety
concerns presented by the statements in Plaintiffs’ affidavits, but under the
circumstances, the jury was permitted to find that the desire to retaliate was a “but-
for” cause of the County’s decision.
III. PLAINTIFFS’ MOTION FOR A NEW TRIAL AGAINST THE
COUNTY
Apparently believing that the verdict against the County was inadequate even
as returned, Plaintiffs moved for a new trial on multiple grounds. We find it
necessary to discuss only certain challenges to the district court’s jury
instructions. 14
The refusal to give a requested jury instruction is an abuse of discretion only
when “(1) the requested instruction correctly stated the law, (2) the instruction dealt
with an issue properly before the jury, and (3) the failure to give the instruction
resulted in prejudicial harm to the requesting party.” Goulah v. Ford Motor Co.,
118 F.3d 1478, 1485 (11th Cir. 1997). “The district court’s refusal to give
14
Plaintiffs’ other challenges to the district court’s jury instructions are without merit
and warrant no discussion, nor can we conclude that the district court abused its broad discretion
in fashioning the verdict forms. Plaintiffs’ evidentiary challenges, challenge to the amount of
time allocated to their closing argument, and all other issues raised by Plaintiffs on appeal are also
without merit and warrant no discussion.
19
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requested instructions is not error if the substance of the proposed instruction was
covered by another instruction, which was given.” Id.
A. Plaintiffs’ Requested Instruction on Employer Liability for Coworker
Harassment
Plaintiffs asked the district court to instruct the jury that the County could be
liable for retaliatory harassment by Plaintiffs’ coworkers if it “knew or should have
known about the harassment but failed to take prompt and effective remedial action
to stop the retaliation.” That might have been an appropriate instruction had
Plaintiffs claimed that the coworker retaliation rose to the level of an actionable
hostile environment. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278
(11th Cir. 2002) (applying Plaintiffs’ proposed standard to a racial-discrimination-
based hostile environment claim); Gowski v. Peake,
682 F.3d 1299, 1311–12 (11th
Cir. 2012) (per curiam) (recognizing the existence of a retaliation-based hostile
environment claim). Plaintiffs, however, expressly disavowed bringing a hostile
environment claim. Success on such a claim, moreover, would have required proof
“that the actions complained of were sufficiently severe or pervasive to alter the
terms and conditions of employment.”
Gowski, 682 F.3d at 1312. Plaintiffs do not
argue that this requirement was satisfied, nor did they so argue below. Absent any
claim that their coworkers’ harassment rose to this level, we doubt that Plaintiffs’
proposed instruction was a correct statement of the law. See Alvarez v. Des Moines
Bolt Supply, Inc.,
626 F.3d 410, 419 (8th Cir. 2010) (“When an employee
20
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complains about inappropriate conduct that does not rise to the level of a violation
of law, . . . there is no liability for a failure to respond.”).
The district court, moreover, instructed that the County could be liable for
coworker retaliation if the County’s “supervisory or management personnel either
orchestrated the retaliation, or knew about the retaliation and acquiesced in it in
such a manner as to condone and encourage the co-workers’ actions.” See also
Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1265 (10th Cir. 1998) (applying
this standard to a retaliatory hostile environment claim). Even if Plaintiffs’
requested instruction were a correct statement of the law, which we doubt, Plaintiffs
have not demonstrated that they suffered any prejudice as a result of the district
court’s alternative choice of instruction.
B. Plaintiffs’ Requested Instruction on the “Adverse Action” Materiality
Requirement
The district court instructed the jury that the County could be liable for
unlawful retaliation only if it took an “adverse action” against Plaintiffs that was
“materially adverse, that is, something that would have dissuaded a reasonable
worker from making or supporting a complaint of discrimination.” Plaintiffs asked
the district court to instruct the jury that, “[e]ven if you find that a particular action,
standing alone, would not be sufficient to constitute an ‘adverse action,’ you may
determine that, when considered collectively, all the actions are sufficient to
21
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constitute an adverse action.” Plaintiffs argue that the failure to give this instruction
was reversible error.
The County did not object to the proposed instruction at trial, nor does it
challenge its accuracy on appeal. See also Shannon v. BellSouth Telecomms., Inc.,
292 F.3d 712, 716 (11th Cir. 2002). Plaintiffs have failed to persuade us, however,
that they suffered prejudicial harm. As an alternative to giving the instruction, the
district court permitted Plaintiffs to make the same point during closing argument.
While this solution was unorthodox, it mitigated any prejudice that may have
otherwise resulted. In addition, we note the risk in this case that the jury would
improperly attribute the County’s actions to the Union, and vice versa. The
wording of Plaintiffs’ proposed instruction may have exacerbated that risk, and the
district court was within its discretion to consider that possibility when declining to
give the instruction.
IV. THE UNION’S MOTION FOR JUDGMENT AS A MATTER OF LAW,
A NEW TRIAL, OR A REDUCTION IN DAMAGES
The Union argues that it was entitled to judgment as a matter of law on
multiple grounds or, in the alternative, a new trial or a reduction in damages. Only
one of the Union’s arguments warrants extended discussion. 15
15
Here we respond briefly to the Union’s other arguments, beginning with those
made in support of its motion for judgment as a matter of law. There was ample evidence to
support the jury’s verdict against the Union. The affirmative defense established in Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742,
118 S. Ct. 2257 (1998), and Faragher v. City of Boca
Raton,
524 U.S. 775,
118 S. Ct. 2275 (1998), was not available because when Grant disseminated
22
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The jury found that the Union retaliated against Plaintiffs by naming them in
the Memo and “editorializing about possible ramifications to Union members.”
The Union argues that the imposition of liability on this basis violates its First
Amendment right to freedom of speech.16 In other words, the Union raises an as-
applied challenge to Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a),
and analogous Florida law as a defense to liability under those provisions. We
analyze the Union’s First Amendment argument.
A. Standard of Review
We review de novo the denial of a motion for judgment as a matter of law,
examining all of the evidence in the record. Gowski, 682 F.3d at 1310.
“Ordinarily, we review district court factfindings only for clear error, but First
Amendment issues are not ordinary. Where the First Amendment Free Speech
the Memo, he was acting in his capacity as Union president and, therefore, “may be treated as the
organization’s proxy.”
Faragher, 524 U.S. at 789, 118 S. Ct. at 2284; see also Dees v. Johnson
Controls World Servs., Inc.,
168 F.3d 417, 421 n.9 (11th Cir. 1999) (“An employer is always
liable for tortious conduct committed by a supervisor within the scope of his employment.”).
Even if the Ellerth-Faragher defense had been available, moreover, the Union failed to support it
factually. Finally, even if an equitable defense might be available in some circumstances, the
district court did not err in concluding that such a defense was not appropriate in this case.
With respect to the Union’s motion for a new trial, we cannot conclude that it was an
abuse of discretion for the district court to deny the Union’s motion for severance. With respect
to the Union’s argument for a reduction in damages, we cannot conclude that the district court
erred with respect to either compensatory or punitive damages. There was sufficient evidence to
support both awards, and we cannot conclude that the jury was swayed by inappropriate factors.
16
The Union also argues that the imposition of liability on this basis violates its First
Amendment right to petition for the redress of grievances and its First Amendment right to
freedom of expressive association. These arguments add little to nothing of merit, and we do not
separately discuss them here.
23
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Clause is involved our review of the district court’s findings of ‘constitutional
facts,’ as distinguished from ordinary historical facts, is de novo.” ACLU of Fla.,
Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1203 (11th Cir. 2009); see also
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.,
515 U.S. 557, 567,
115
S. Ct. 2338, 2344 (1995) (“[T]he reaches of the First Amendment are ultimately
defined by the facts it is held to embrace, and we must thus decide for ourselves
whether a given course of conduct falls on the near or far side of the line of
constitutional protection.”). Constitutional facts are “the ultimate fact[s] upon
which the resolution of the constitutional question depends,” as distinguished from
preliminary factual issues. ACLU of
Fla., 557 F.3d at 1204. “Where the line is
drawn varies according to the nature of the substantive law at issue.” Bose Corp. v.
Consumers Union of U.S., Inc.,
466 U.S. 485, 501 n.17,
104 S. Ct. 1949, 1960 n.17
(1984).
Although we review findings of “constitutional fact” de novo, we review
other subsidiary findings of historical fact for clear error, and we defer to the jury’s
credibility determinations unless they are clearly erroneous. See Harte-Hanks
Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688,
109 S. Ct. 2678, 2696 (1989);
ACLU of
Fla., 557 F.3d at 1203.
B. The Nature of the Burden
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At the outset, we assume arguendo that the entry of judgment on the verdict
against the Union was a content-based burden on the Union’s speech. We believe
that the Union’s Memo could, alternatively, be viewed as part and parcel of a
course of retaliation that included not only speech but also conduct.17 The district
court construed the Union’s speech as a “call for reprisal,” and we are in basic
agreement with the district court’s construction. See infra note 21 and
accompanying text. The Memo did not specify that the contemplated retaliation
would take the form of speech rather than conduct, and the retaliation that actually
resulted from the Union’s call for reprisal took the form of both speech and
conduct. 18 As the First Circuit has explained:
In outlawing retaliation, [the government] 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, 436 U.S. 447, 456,
98
S. Ct. 1912,
56 L. Ed. 2d 444 (1978) (quoting Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 502,
69 S. Ct. 684,
93 L. Ed. 834
(1949)) (internal quotation marks omitted); see also R.A.V. v. City of
St. Paul, 505 U.S. 377, 389,
112 S. Ct. 2538,
120 L. Ed. 2d 305 (1992)
(“[W]ords can in some circumstances violate laws directed not against
speech but against conduct.”); NLRB v. Gissel Packing Co., 395 U.S.
17
The anti-retaliation laws are generally directed at conduct rather than speech. See
Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist.,
605 F.3d 703, 710 (9th Cir. 2010) (discussing
anti-harassment law).
18
The ensuing retaliation by Union members included not only retaliatory verbal
comments and ostracism but also conduct in the form of denying “shift swaps,” denying access to
vacation and overtime, and resisting when Plaintiffs requested transfers to different stations.
25
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575, 618, 89 S. Ct. 1918,
23 L. Ed. 2d 547 (1969) (finding no First
Amendment protection, in the context of the National Labor Relations
Act, for employer’s anti-union comments if those comments constitute
“a threat of retaliation based on misrepresentation and coercion”).
Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 83 (1st Cir. 2007). To the
extent that the Union’s liability is based on statements that are integral or akin to a
retaliatory course of conduct, Dixon provides support for rejecting the Union’s First
Amendment defense on that ground, or at least for treating the burden on the
Union’s speech as incidental to the regulation of its retaliatory conduct. See United
States v. O’Brien,
391 U.S. 367,
88 S. Ct. 1673 (1968).
In Holder v. Humanitarian Law Project, 561 U.S. 1, 28,
130 S. Ct. 2705,
2724 (2010), however, the Supreme Court rejected the argument that a law
prohibiting the provision of material support to terrorist organizations should be
treated as a regulation of conduct rather than speech because, although the statute
was directed at conduct, “as applied to plaintiffs the conduct triggering coverage
under the statute consist[ed] of communicating a message.” Because the
application of the statute depended on what the plaintiffs wanted to communicate,
the statute was treated as a content-based restriction on speech.
Id. at 27, 130 S. Ct.
at 2723–24. In the present case, the Union similarly argues that its liability was
26
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triggered solely by its speech in the Memo, and on the basis of that speech’s
content. 19
It is not at all clear that Humanitarian Law Project is on point. Unlike the
plaintiffs in that case, who would have triggered the statute because of their desire
19
It is generally believed that laws against status-based discrimination, e.g., laws
against discrimination on the basis of “race, color, religion, sex, or national origin,” 42 U.S.C.
§ 2000e-2, at least sometimes burden speech on the basis of its content. See Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 206 & n.6 (3d Cir. 2001) (Alito, J.) (collecting authorities).
“Indeed, a disparaging comment directed at an individual’s sex, race, or some other personal
characteristic has the potential to create an ‘hostile environment’—and thus come within the
ambit of anti-discrimination laws—precisely because of its sensitive subject matter and because
of the odious viewpoint it expresses.”
Id. at 206.
It is less clear that anti-retaliation laws, such as the ones at issue here, function as content-
based restrictions on speech. It is true that liability under the anti-retaliation laws may sometimes
attach because of the content of a particular statement, which supports the argument that those
laws may be content-based in application. See Humanitarian Law
Project, 561 U.S. at 27–28, 130
S. Ct. at 2723–24; Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal
Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell L.
Rev. 1277, 1278–1311 (2005). It seems unlikely, however, that liability will often attach because
of disagreement with the speaker’s message. See, e.g., Ward v. Rock Against Racism,
491 U.S.
781, 791,
109 S. Ct. 2746, 2754 (1989) (“The principal inquiry in determining content
neutrality . . . is whether the government has adopted a regulation of speech because of
disagreement with the message it conveys.”). But see Turner Broad. Sys., Inc. v. FCC,
512 U.S.
622, 642,
114 S. Ct. 2445, 2459 (1994) (“[W]hile a content-based purpose may be sufficient in
certain circumstances to show that a regulation is content based, it is not necessary to such a
showing in all cases.”). We might expect a jury, for example, to have strong opinions about
disparaging comments directed at an individual’s sex or race, but it seems unlikely that the jury
would have strong opinions about disparaging comments directed at an individual’s attempt to
enforce his rights under the anti-discrimination laws. It is true, however, that the anti-retaliation
laws encompass only retaliation that occurs because of a preceding attempt to enforce the anti-
discrimination laws. See 42 U.S.C. § 2000e-3(a); Univ. of Tex. Sw. Med. Ctr. v. Nassar, --- U.S.
---, ---,
133 S. Ct. 2517, 2528 (2013). Thus, to the extent that the anti-discrimination laws operate
as content-based speech restrictions, the anti-retaliation laws that enforce them may arguably be
content-based in a derivative sense.
In any event, we do not think that the jury in this case found the Union liable because of
disagreement with the Union’s message. Indeed, we doubt that the jury had any substantial
opinion about the merits of Plaintiffs’ original discrimination charges (which were not entered
into evidence) or the likely cost of the Union’s defense. If the application of the anti-retaliation
laws in this case is content-neutral rather than content-based, it is easily upheld. See generally
Turner Broad. Sys., Inc., 512 U.S. at 662, 114 S. Ct. at 2469 (outlining the standard).
27
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to communicate a message, the Union here at least arguably was not
communicating a message at all.20 Rather, the Union’s speech in the Memo was a
call for retaliation and a threat of further retaliation. See infra notes 21–22 and
accompanying text. It is at least arguable that the Union’s statements amounted to
speech that is incidentally proscribable because it is used to aid in an unlawful act,
like the statement, “Go to bed with me if you want a raise.” 1 Rodney A. Smolla,
Smolla and Nimmer on Freedom of Speech § 13:7, at 13-21 (2014).
However, because of the lack of clarity in the case law, we decline to hold
that a lesser scrutiny should apply merely because the Union’s call for retaliation
initiated and was inextricably intertwined with the actual retaliation (both speech
and conduct) that predictably resulted.
C. The First Amendment Analysis
Even assuming that the restriction on the Union’s speech, as embodied in the
instant judgment, is content-based, we nevertheless reject the Union’s argument that
the First Amendment immunizes it under the facts of this case. Although we
recognize that “anti-discrimination laws are [not] categorically immune from First
Amendment challenge,” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 209 (3d
Cir. 2001) (Alito, J.), the following reasons contribute to our conclusion.
20
Humanitarian Law Project is also distinguishable on the ground that the plaintiffs
in that case desired to communicate messages of a political nature. 561 U.S. at 37–38, 130 S. Ct.
at 2729. We hold in Part IV.C, infra, that the Union’s statements in this case did not even pertain
to a matter of public concern.
28
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First, it is absolutely clear that there is a compelling government interest.
“[P]reventing discrimination in the workplace . . . is not only a legitimate, but a
compelling, government interest.” Id. (citing Bd. of Dirs. of Rotary Int’l v. Rotary
Club of Duarte,
481 U.S. 537, 549,
107 S. Ct. 1940, 1948 (1987)). The purpose of
the anti-retaliation provisions at issue in this case is to “secure that primary
objective by preventing [a labor organization] from interfering (through retaliation)
with [a member’s] efforts to secure or advance enforcement” of the “basic
guarantees” of the anti-discrimination laws. Burlington N. & Santa Fe Ry. Co. v.
White,
548 U.S. 53, 63,
126 S. Ct. 2405, 2412 (2006).
Second, on the basis of our independent review, we conclude that the Memo
contained both an implicit “call for reprisal” and also a threat of further retaliation.
In the Memo, the Union intentionally invited its members to retaliate against
Plaintiffs because Plaintiffs had filed EEOC charges. 21 A crucial part of this “call
21
Union President Grant testified that he disseminated the Memo in order to inform
the Union’s members and respond to questions and rumors. Plaintiffs presented evidence,
however, tending to establish that the naming of Plaintiffs was unprecedented. Moreover, Grant
testified at trial that, although the cost of the Union’s defense had substantially exceeded his
expectation as of the time of the Memo, no additional assessment had been levied. The jury could
have readily believed that Grant’s threat of additional assessments was baseless. By finding that
Grant’s action was retaliatory, the jury necessarily rejected Grant’s facially plausible
explanations. In light of Plaintiffs’ evidence supporting a contrary inference, the jury’s credibility
determination was not clearly erroneous, and we defer to it. See Harte-Hanks Commc’ns, 491
U.S. at 689–91, 109 S. Ct. at 2696–97.
Likewise, we agree with the jury that the Union’s actions were likely to provoke, and did
in fact provoke, retaliatory harassment by Plaintiffs’ coworkers. In reaching this determination,
we are sensitive to the context in which the statements were made. Union members reading a
Memo from their president may “pick up intended implications . . . that might be more readily
dismissed by a more disinterested ear.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89
29
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for reprisal” was a threat that the cost of the Union’s defense would result in
additional dues assessments, which the individual members would be required to
pay. Because no such assessment was ever levied, this statement was reasonably
perceived as a baseless threat of further retaliation if Plaintiffs did not drop their
EEOC charges. 22
We find support in the context of federal labor laws governing the workplace,
which for our purpose are analogous to civil rights laws governing the workplace.
In the former context, the Supreme Court has held that the First Amendment does
not immunize an employer’s statement to its employees that a vote to unionize
could lead to the closing of their workplace when “the statement is [not] a
reasonable prediction based on available facts but [rather is] a threat of retaliation
based on misrepresentation and coercion, and as such [is] without the protection of
the First Amendment.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618,
89 S. Ct.
1918, 1942 (1969). As in Gissel Packing, the speech in the instant case was
reasonably viewed as a baseless threat rather than a reasonable prediction. Because
the government’s interest in preventing discrimination in the workplace is at least as
S. Ct. 1918, 1942 (1969); cf.
Rodriguez, 605 F.3d at 710 (distinguishing between supervisor and
coworker speech). The evidence at trial established that, following the dissemination of the
Memo, Plaintiffs were ostracized by their coworkers, nearly all of whom were Union members.
22
We recognize that the Union could not levy such an assessment without the
approval of the membership. The Union’s baseless assertion is, nevertheless, reasonably
understood as an attempt to intimidate Plaintiffs.
30
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compelling as its interest in prohibiting unfair labor practices, we believe that
Gissel Packing provides significant support for rejecting the Union’s First
Amendment challenge in this case. 23
Finally, and most significantly, we find strong support for rejecting the
Union’s First Amendment challenge in the fact that the Union’s speech at issue in
this case involves a matter of little or no public concern. 24 The Supreme Court has
recently reiterated that the “public concern” versus “private concern” distinction is
relevant and of significance when the First Amendment is asserted as a defense to
civil liability. Snyder v. Phelps, --- U.S. ---, 131 S. Ct. 1207 (2011) (intentional
infliction of emotional distress). In evaluating the rights of Westboro Baptist
23
The First Circuit relied in part on Gissel Packing when it reasoned that the union’s
liability in Dixon would survive a First Amendment challenge. See Dixon, 504 F.3d at 84
(“There is an important difference between defending oneself, on the one hand, and threatening,
intimidating, or otherwise interfering with someone’s right to pursue a discrimination claim on
the other.”).
24
For this reason, the Supreme Court’s “incitement” cases are distinguishable. See
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 914,
102 S. Ct. 3409, 3426 (1982) (involving
a “politically motivated boycott designed to force governmental and economic change and to
effectuate rights guaranteed by the Constitution itself”); Hess v. Indiana,
414 U.S. 105,
94 S. Ct.
326 (1973) (per curiam) (antiwar demonstration); Brandenburg v. Ohio,
395 U.S. 444,
89 S. Ct.
1827 (1969) (per curiam) (Ku Klux Klan rally). For the same reason, Rodriguez v. Maricopa
County Community College District,
605 F.3d 703 (9th Cir. 2010), is distinguishable.
The Union also cites DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591
(5th Cir. 1995). DeAngeles was a female police officer who brought a hostile work environment
claim based on “evidence of a few written jibes, at women police officers generally and the
plaintiff in particular, published in the police association newsletter.”
Id. at 592. The court
described the evidence as “rife . . . with first amendment overtones” but resolved the case on non-
constitutional grounds.
Id. We understand the Fifth Circuit only to have opined, in dicta, that
workplace harassment cases might implicate the First Amendment, at least where liability is
based solely on statements about the role of women in a workplace.
Id. at 596–97. DeAngelis is
therefore not in tension with our analysis.
31
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Church members picketing the funeral service of a deceased soldier, the Court
indicated that: “Whether the First Amendment prohibits holding Westboro liable for
its speech in this case turns largely on whether that speech is of public or private
concern, as determined by all the circumstances of the case. Speech on matters of
public concern is at the heart of the First Amendment’s protection.” Id. at ---, 131
S. Ct. at 1215 (alterations and internal quotation marks omitted). The Court also
stated:
Not all speech is of equal First Amendment importance, however, and
where matters of purely private significance are at issue, First
Amendment protections are often less rigorous. That is because
restricting speech on purely private matters does not implicate the
same constitutional concerns as limiting speech on matters of public
interest: There is no threat to the free and robust debate of public
issues; there is no potential interference with a meaningful dialogue of
ideas; and the threat of liability does not pose the risk of a reaction of
self-censorship on matters of public import.
Id. at ---, 131 S. Ct. at 1215–16 (citations, alterations, and internal quotation marks
omitted). Thus, we inquire whether the Union’s speech at issue here pertained to a
matter of public concern or private concern.
It is significant that the jury focused on a narrow aspect of the Union’s
speech. Liability was not based on the mere fact that the Union reported the
existence of an EEOC charge. Nor was liability based upon the Union’s expression
of its opinion that Plaintiffs’ claims were “frivolous.” Rather, the ground on which
the Union was held liable was its “call for reprisal”—the fact that the Union
32
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identified Plaintiffs, invited Union members to retaliate against them for having
filed EEOC charges, and threatened to impose assessments in order to fund the
Union’s defense.
Focusing on this narrow aspect of the Union’s speech, we inquire whether the
Union spoke on a matter of public or private concern. In Connick v. Meyers, 461
U.S. 138, 146,
103 S. Ct. 1684, 1690 (1983), the Supreme Court held that, to fall
within the realm of “public concern,” the speech must “relat[e] to a[] matter of
political, social, or other concern to the community.” This determination depends
on the “content, form, and context” of the speech “as revealed by the whole record.”
Id. at 147–48, 103 S. Ct. at 1690. In Morgan v. Ford,
6 F.3d 750 (11th Cir. 1993)
(per curiam), we held that the plaintiff engaged in speech on a matter of private
concern—and not on a matter of public concern—when she complained about
sexual harassment to the superintendent of the prison facility where she worked, the
Internal Affairs Division of the Georgia Department of Corrections, and the
Georgia Office of Fair Employment Practices. We held that: “While we agree that
the general subject of sexual harassment in the workplace is a matter of public
concern, each complaint must be assessed on a case-by-case basis.”
Id. at 755 n.7.
In holding that the plaintiff’s complaints involved only matters of private concern,
we noted:
[Plaintiff] did not relate her concerns about sexual harassment to the
public, or attempt to involve the public in any manner. [Plaintiff’s]
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expressions in no way drew the public at large or its concerns into the
picture. The record shows that [plaintiff’s] speech was driven by her
own entirely rational self-interest in improving the conditions of her
employment. . . . As an employee grievance, [plaintiff’s] speech was
not a matter of public concern.
Id. at 755 (footnote, citation, alteration, and internal quotation marks omitted).25
On the basis of the foregoing precedent, and on the basis of our independent
review of the record, we conclude that Plaintiffs’ filing of their EEOC charges in this
case was not a matter of public concern. By similar reasoning, we conclude that the
Union’s response was not speech on a matter of public concern. Even if we
considered the Union’s response as a whole (rather than the particular aspects which
formed the basis of the Union’s liability), it was merely a response to Plaintiffs’
personal grievances. When we focus on the narrow basis upon which the Union was
held liable, it is even clearer that there is little or nothing of public interest or concern
in the Union’s statements or the Union’s threat that the members might have to pay
additional assessments. Neither Plaintiffs’ charges nor the Union’s Memo
“attempt[ed] to involve the public in any manner” or “in [any] way drew the public at
25
This holding in Morgan v. Ford is consistent with the reasoning of Smolla and
Nimmer:
In deciding whether speech is a matter of public concern . . . , courts should not fall
for the glib assertion that because matters of race and gender are, at the broadest
level of abstraction, clearly issues of public concern, all racist and sexist remarks
automatically qualify. To the contrary, most speech sufficient to meet the
reasonable person standard of [Harris v. Forklift Systems, Inc., 510 U.S. 17,
114
S. Ct. 367 (1993),] will not be legitimately characterized as speech on public
concern.
Smolla, supra Part IV.B, § 13:17, at 13-35 to -36.
34
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large or its concerns into the picture.” Id. at 755 (alteration and internal quotation
marks omitted). Neither Plaintiffs’ charges nor the Union’s Memo was disseminated
to the public. The Union’s Memo was sent only to its own bargaining unit members.
The Union’s liability for its statements presents “no threat to the free and robust
debate of public issues; there is no potential interference with a meaningful dialogue
of ideas.” Snyder, --- U.S. at
---, 131 S. Ct. at 1215 (internal quotation marks
omitted). Rather, the Union’s Memo “was speech solely in the individual interest of
the speaker and its specific . . . audience.”
Id. at ---, 131 S. Ct. at 1216 (internal
quotation marks omitted). Thus, the content (the naming of Plaintiffs, the implicit
“call for reprisal,” and the threat to make assessments), the form (dissemination to a
limited membership rather than the public at large), and the context (a mere personal
response to Plaintiffs’ personal grievances) all indicate that the speech at issue was
not on a matter of public concern. 26
In rejecting the Union’s argument that the First Amendment immunizes its
speech in this case, we place primary reliance on the fact that the Union’s speech is
about a matter of little or no public concern. We find support for this position in the
foregoing authorities, and also in a leading treatise. In the related context of hostile
work environment claims, Smolla, supra Part IV.B, § 13:11, at 13-24.2, opines:
26
We further note that the Union is a non-governmental organization and that there is
no indication that Plaintiffs’ charges were a topic of local news interest at the time of the Memo’s
dissemination. The newspaper article that was posted on station bulletin boards was published
well over a year later, after Plaintiffs initiated their lawsuit.
35
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“[H]ostile environment cases should be understood as consistent with general First
Amendment standards because the speech in such cases is not a matter of public
concern, and does more than cause mere emotional distress—it invades a legally
cognizable interest of the employee that arises from the employment setting.”
On the basis of our independent review of the record, and for all of the
foregoing reasons, we reject the Union’s First Amendment defense in this case.
V. PLAINTIFFS’ CROSS-APPEAL AGAINST THE UNION
Nine days after the entry of judgment, Plaintiffs moved for various forms of
equitable relief against the Union. The district court denied Plaintiffs’ motion, and
Plaintiffs cross-appealed. We review for abuse of discretion, see Rice v. Ford
Motor Co., 88 F.3d 914, 918–19 (11th Cir. 1996), and conclude that Plaintiffs have
demonstrated none. We have said that, “[i]n cases presenting abundant evidence of
consistent past discrimination, injunctive relief is mandatory absent clear and
convincing proof that there is no reasonable probability of further noncompliance
with the law.” Cox. v. Am. Cast Iron Pipe Co.,
784 F.2d 1546, 1561 (11th Cir.
1986). The evidence in this case, however, did not require the district court to
enjoin the Union from taking further retaliatory actions. Nor was the district court
required to second-guess the jury’s damages awards, or the apportionment of
damages between the two defendants, where they were supported by sufficient
evidence. We note, however, that Plaintiffs are entitled to post-judgment interest
36
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with respect to the awards of both compensatory and punitive damages. 28 U.S.C.
§ 1961(a) (“Interest shall be allowed on any money judgment in a civil case
recovered in a district court.”); Redondo Constr. Corp. v. P.R. Highway & Transp.
Auth. (In re Redondo Constr. Corp.), 700 F.3d 39, 42 (1st Cir. 2012)
(“Postjudgment interest is mandatory and the prevailing party is entitled to it even if
the district court made no provision for its payment.”); Bank S. Leasing, Inc. v.
Williams,
778 F.2d 704, 706 (11th Cir. 1985) (holding that post-judgment interest
accrues on the entire award, including punitive damages).
VI. CONCLUSION
We reverse the entry of judgment in favor of the County and order that
judgment be entered against the County on the verdicts as returned. In all other
respects, the judgment of the district court is affirmed.
AFFIRMED IN PART and REVERSED IN PART.
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