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.
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
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.
For the following reasons, we reverse the district court's entry of judgment in favor of the County and affirm in all other respects.
We recount a relevant subset of the facts established at trial.
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.
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 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.
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.
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 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:
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.
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.
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."
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 boards, but Brown testified that it was still posted in Booth's station as of January 2009.
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
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.
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.
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:
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:
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:
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.
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."
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
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 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.
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.
The jury found that the County subjected Plaintiffs to fitness-for-duty examinations because of their grievances and charges against the County. The 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).
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.
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 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, 91 L.Ed.2d 202 (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 "butfor" cause of the County's decision.
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.
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 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.
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
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.
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.
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.
We review de novo the denial of a motion for judgment as a matter of law,
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, 105 L.Ed.2d 562 (1989); ACLU of Fla., 557 F.3d at 1203.
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.
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, 20 L.Ed.2d 672 (1968).
In Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 2724, 177 L.Ed.2d 355 (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 triggered solely by its speech in the Memo, and on the basis of that speech's content.
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.
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.
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, 95 L.Ed.2d 474 (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, 165 L.Ed.2d 345 (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.
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, 23 L.Ed.2d 547 (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 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.
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.
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 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. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (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
Id. at 755 (footnote, citation, alteration, and internal quotation marks omitted).
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 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.
In rejecting the Union's argument that the First Amendment immunizes its speech in this case, we place primary reliance
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.
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 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 postjudgment interest accrues on the entire award, including punitive damages).
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.
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.
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, 105 L.Ed.2d 661 (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, 129 L.Ed.2d 497 (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 antidiscrimination laws. See 42 U.S.C. § 2000e-3(a); Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, ___, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (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).
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 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (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.
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 nonconstitutional 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.
Smolla, supra Part IV.B, § 13:17, at 13-35 to -36.
