Mark Serafinn v. International Brotherhood of T ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1114, 08-1128, 09-2253, 09-2266,
09-3142 and 09-3292
M ARK SERAFINN,
Plaintiff-Appellee/
Cross-Appellant,
v.
L OCAL 722, INTERNATIONAL B ROTHERHOOD OF
T EAMSTERS, C HAUFFEURS, W AREHOUSEMEN
AND H ELPERS OF A MERICA ,
Defendant-Appellant/
Cross-Appellee,
and
S TEVEN M ONGAN and JOINT C OUNCIL 65 OF THE
INTERNATIONAL B ROTHERHOOD OF T EAMSTERS,
INTERNATIONAL U NION,
Defendants/
Cross-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 9409—Virginia M. Kendall, Judge.
A RGUED F EBRUARY 8, 2010—D ECIDED M ARCH 12, 2010
2 Nos. 08-1114, 08-1128, 09-2253, et al.
Before B AUER, E VANS and T INDER, Circuit Judges.
B AUER, Circuit Judge. Mark Serafinn sued his local
union and the joint council comprising leaders from
his and other regional locals. He claimed that they im-
paired his free speech and assembly rights, fined him,
and suspended his union membership without due
process, in violation of the Labor Management Reporting
and Disclosure Act (“LMRDA”) (also known as the
Landrum-Griffin Act), 29 U.S.C. §§ 401 et seq. The
district court granted summary judgment to the joint
council, but a jury ruled against the local in favor of
Serafinn.
The local appeals its losing jury verdict, arguing that
the district court erred in denying it a mixed-motive
jury instruction, in instructing the jury to consider
witness Timothy Craig’s testimony about his DUI con-
viction for impeachment purposes only, and in instructing
the jury not to consider the correctness of the joint
council’s finding that he had violated the union’s work-
referral rules. Serafinn cross-appeals the district court’s
denial of his motion for relief from his summary-judgment
loss against the joint council and its reduction of the
attorneys’ fees award he won against the local.
We have reviewed, for an abuse of discretion, four
preserved challenges (a fifth challenge was waived) to the
district court’s rulings. Finding no prejudicial error,
we affirm.
Nos. 08-1114, 08-1128, 09-2253, et al. 3
I. BACKGROUND
The International Brotherhood of Teamsters is a labor
union comprising 1.4 million members, ranging in occu-
pation “from airline pilots to zookeepers.” See
http://www.teamster.org/content/team sters-structure
(visited Feb. 16, 2010). Each member belongs to one
of several hundred local unions that maintain substantial
independence from the international organization. In
regions with three or more locals, joint councils of
leaders from those locals are set up to “help solve
problems and decide some jurisdictional and judicial
matters.” Id.The Teamsters for a Democratic Union (“TDU”) is a
“well-known and nationally active dissident faction”
comprising thousands of Teamsters. Appellee’s Br. at 6;
see http://www.tdu.org/whoweare (visited Feb. 16, 2010).
In essence, the TDU functions as a rank-and-file political
party within the international organization, opposed to
the administration currently led by James P. Hoffa. See
Appellee’s Br. at 7.
Mark Serafinn, a TDU member, served three terms as
president of his local union, until he lost to Hoffa sup-
porter Steven Mongan in 2001. Serafinn also lost his bid
for vice president of his region’s joint council, composed
solely of Hoffa supporters and led by president Keith
Gleason. What happened next forms the nature of this
dispute.
As Serafinn tells the story, his TDU politics were more
than Hoffa supporters could bear. Mongan and Gleason
colluded to have the local union and joint council bring
4 Nos. 08-1114, 08-1128, 09-2253, et al.
internal disciplinary charges against Serafinn solely
because he met with local union executives and pub-
lished a newsletter accusing Mongan of cronyism, dumb-
ness, and suppression of free speech. Their charges that
he violated union rules by referring himself to a coveted
power plant job ahead of others on the referral list
were unevenly applied, because Hoffa supporters
routinely broke the referral rules to reward their cronies
with lucrative work without consequence, and baseless,
because he visited the job site only for unpaid training.
Mongan had told local union members not to show up
at the job site just so that Serafinn could be blamed. The
people ahead of him on the referral list were not even
eligible because they were already working elsewhere,
and two of them, including Timothy Craig, were
further barred from complaining because they failed to
show up at the power plant. The joint council’s hearing
and review of charges that Serafinn violated the referral
rules was a prejudging kangaroo court. The presiding
officer Gleason was biased against Serafinn and had
colluded with Mongan to bring the charges. Mongan
told local union members to testify falsely before the joint
council, or else they would lose their jobs. The joint coun-
cil’s order that Serafinn pay restitution and be sus-
pended from the union for six months unjustly penalized
Serafinn and chilled union speech.
As the local union and joint council tell the story,
Serafinn’s rule-breaking greed was more than anyone
could bear. Serafinn assigned himself to work, not
training, and even if he assigned himself to training,
that also violated the referral rules. Referral-eligible,
Nos. 08-1114, 08-1128, 09-2253, et al. 5
victimized coworkers in the local who should have got
the power plant job—not Mongan and Gleason—brought
the charges against Serafinn. The local referred the disci-
plinary proceeding to the joint council only because a
majority of officers who would have presided at the
local were also witnesses. Serafinn attended the hearing
and was permitted to introduce evidence, testify, and
cross-examine witnesses. Gleason presided impartially
and in accordance with ordinary rules of evidence and
procedure. The panel disciplined Serafinn because he
deserved it. The decision had nothing to do with
Serafinn’s politics or exercise of free speech. The work-
referral rules applied equally to everyone, especially to
Serafinn who was in a unique leadership position at the
time as lame-duck president.
The district court awarded summary judgment to the
joint council. It found that Serafinn provided insufficient
evidence for a jury to find that the joint council was
involved in bringing the disciplinary charges against
Serafinn, or that the joint council afforded Serafinn any-
thing other than a full and fair hearing. Serafinn v. Int’l
Bhd. of Teamsters, Local Union No. 722, No. 03 C 9409, 2007
WL 1670360, at **8, 13 (N.D. Ill. June 5, 2007).
But the district court denied the local’s motion for
summary judgment, so Serafinn’s case against the local
went to trial. Before trial, Serafinn proposed a jury in-
struction that would have required him to establish
that retaliation was only a “motivating factor” in the
local’s decision to prosecute the charges against him. Id. at
*7. In response, the local proposed a “mixed-motive” jury
6 Nos. 08-1114, 08-1128, 09-2253, et al.
instruction patterned after Mount Healthy City School
District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).
In the proposed instruction, the local conceded
that Serafinn had the initial burden to show that his
exercise of free speech was merely “a motivating factor”
in the local’s decision to prosecute him, as Serafinn re-
quested. Serafinn, 2007 WL 1670360, at *6. But if the jury
found that Serafinn met his burden, then the burden
of proof would have shifted to the local to prove that it
would have taken the same action even had Serafinn
not exercised his free speech, thereby avoiding liability
altogether (unlike a typical mixed-motive instruction
that limits but does not erase all liability). The district
court rejected both parties’ instructions, preferring
instead a “but-for cause” instruction, which at all times
kept the burden on the plaintiff to prove that the
local prosecuted him solely because he exercised his free
speech.
To begin the trial, Serafinn called Craig as a witness to
prove that when Serafinn was at the power plant, Craig
was ineligible to work there because he failed to show up.
Craig testified that he didn’t show up because Serafinn
had called him at home and told him not to. Serafinn
rebutted that Craig’s absence was due to one of his
three DUI convictions. Serafinn also argued that one of
the later DUI convictions resulted in a revoked driver’s
license but that the local nevertheless continued to
refer driving-related work to him, thus supporting
Serafinn’s theory that Craig was an individual similarly
situated to Serafinn against whom the local selectively
declined to enforce the referral rules. Serafinn failed to
Nos. 08-1114, 08-1128, 09-2253, et al. 7
submit evidence showing that any of Craig’s DUI convic-
tions were felonies or involved an act of dishonesty. At
the close of trial, the district court instructed the jury to
consider “the evidence that Timothy Craig has been
convicted of a crime . . . only in deciding whether
Timothy Craig’s testimony is truthful in whole, in part, or
not at all. You may not consider this evidence for any
other purpose.” Serafinn, 2007 WL 1670360, at *8.
At the close of trial, the district court also issued the
following instruction:
And I’m going to read a limiting instruction to you
at this point. There have been a number of discussions
from the witness stand and questions by these
lawyers regarding the charges and the resolution of
those charges. And I am instructing you that in a
separate proceeding a union body, known as the
Joint Council 65, found that the plaintiff violated
union referral practices and suspended and fined the
plaintiff as a result. That was the union’s role. Whether
the joint council’s decision was correct is not at
issue for you in this case. Your role is to determine
whether the defendants brought those charges
against Serafinn in retaliation for his exercise of rights
protected under the law. You are not supposed to
be reviewing the decision.
Appellant’s Reply at 9 (quoting Tr. of Trial, p. 668).
A jury found the local liable to Serafinn for retaliating
against his exercise of free speech. It awarded Serafinn
$50,000 in compensatory damages and $55,000 in punitive
damages.
8 Nos. 08-1114, 08-1128, 09-2253, et al.
After winning at trial, Serafinn moved for relief from
the prior award of summary judgment for the joint
council on the ground of newly discovered evidence
adduced at trial against the local. The evidence consisted
of Gleason’s testimony that within three months before
the joint council brought charges against Serafinn, Gleason
had met privately with Mongan, had telephoned the
international organization, and had conducted a con-
ference call with the joint council. The district court
considered this evidence, finding nothing new to “reason-
ably demonstrate [the joint council’s] bias or role in
retaliating against [Serafinn].” Id. at *5.
Serafinn’s attorneys submitted a claim to the district
court that their time and expenses totaled $866,063 in
this case and that they should be awarded as much. The
district court decided that Serafinn should be awarded
attorneys’ fees, but it reduced the claimed amount to
$181,130.20, considering, among other things, the local’s
ability to pay and that “Serafinn prevailed on only two
of his four claims against only one of three defendants.”
R. 365 at 3.
II. DISCUSSION
We review for an abuse of discretion each of the parties’
challenges to the district court’s decisions that were
preserved: to not give a mixed-motive jury instruction, see
Alcala v. Emhart Industries, Inc., 495 F.3d 360, 363 (7th Cir.
2007) (citing Spiller v. Brady, 169 F.3d 1064, 1066 (7th Cir.
1999)), to give a limiting instruction regarding Craig’s
testimony, see id., to deny relief from its grant of summary
Nos. 08-1114, 08-1128, 09-2253, et al. 9
judgment to the joint council, see Gomez v. Chody, 867
F.2d 395, 405 (7th Cir. 1989), and to determine the
amount of the attorneys’ fees award. See Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). (The local’s challenge
to the limiting instruction regarding the joint council’s
hearing was waived. We discuss the standard of review
to that challenge later.)
Under the abuse-of-discretion standard, “deference . . . is
the hallmark.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143
(1997). How much deference we afford a district court’s
exercise of discretion varies indirectly with the strictness
of legal rules governing the exercise. When rules, stan-
dards, and precedents govern, the district court’s discre-
tion is limited. When multi-factor balancing tests and
complex fact-determinations govern, the district court’s
discretion is greater. See United States v. Approximately
81,454 Cans of Baby Formula, 560 F.3d 638, 641 (7th Cir.
2009); Call v. Ameritech Mgmt. Pension Plan, 475 F.3d 816,
822 (7th Cir. 2007); Metlyn Realty Corp. v. Esmark, Inc., 763
F.2d 826, 831 (7th Cir. 1985).
A. Mixed-Motive Instruction
We will come to the nature of the rule governing the
district court’s denial of the local’s proposed “Mt. Healthy
‘mixed-motive’ jury instruction.” Appellant’s Br. at 2. But
first we note that the local actually argues for a burden-
shifting instruction—not a mixed-motive instruction.
A mixed-motive instruction, by definition, follows a
prior instruction that permits a plaintiff to establish
10 Nos. 08-1114, 08-1128, 09-2253, et al.
liability merely by showing that the improper consider-
ation was a “motivating factor” of the defendant’s con-
tested action. Federal Civil Jury Instructions of the Seventh
Circuit 3.01 (2008), cmt. c; see Mt. Healthy, 429 U.S. at 287;
see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003);
Price Waterhouse v. Hopkins, 490 U.S. 228, 236-37 (1989);
Gooden v. Neal, 17 F.3d 925, 928 (7th Cir. 1994). A mixed-
motive instruction then permits the defendant to limit
its liability if it can prove that it would have taken the
contested action regardless of the improper considera-
tion. See, e.g., Mt. Healthy, 429 U.S. at 287.
Here the district court rejected Serafinn’s proposed
motivating-factor instruction, leaving no motivating-
factor liability to limit, so there cannot have been the
liability-limiting mixed-motive instruction that Mt.
Healthy authorizes. Instead the district court instructed
the jury that Serafinn had to prove that his exercise of
free speech was not merely a motivating factor, but a
necessary condition or a “ ‘but-for’ cause.” See Gross v.
FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2350 (2009); see also
United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010).
So the local argues in essence that the district court
should have substituted both a motivating-factor and a
mixed-motive instruction for the but-for cause instruc-
tion the district court gave. But the local’s composite
instruction would have been not only “longer” and “more
complicated,” as the district court found, Serafinn, 2007
WL 1670360, at *7 (citing Federal Civil Jury Instructions of
the Seventh Circuit 3.01, cmt. c), but also disadvantageous
to the local if the evidence was in equipoise. Cf. Appellant’s
Nos. 08-1114, 08-1128, 09-2253, et al. 11
Br. at 31 (“It was obviously a close case.”). Both the but-for
cause instruction and the local’s proposed composite
instruction score complete victory for the local if a jury
finds that the local would have prosecuted Serafinn
regardless of his outspoken politics. But whereas the but-
for cause instruction maintains the burden of persuasion
on the plaintiff, giving a tie to the local, the local’s pro-
posed composite instruction shifts the burden of persua-
sion to itself, giving a tie to Serafinn.
So what we are really reviewing is the district court’s
decision not to alter the burden of persuasion, which it
was not permitted to do merely because of the local’s ill-
advised request. See Gross, 129 S.Ct. at 2350-52 (finding
that a statute with language similar to the LMRDA
does not permit shifting of the burden of persuasion).
The district court’s discretion was accordingly confined,
and it therefore properly denied the local’s proposed
motivating-factor/mixed-motive composite instruction.
The district court also properly denied Serafinn’s
motivating-factor instruction. A mixed-motive theory of
liability is never proper in a suit brought under the
LMRDA, so any discretion the district court exercised in
denying instructions supportive of a mixed-motive
theory was thus limited. Some courts have found mixed-
motive theories of liability proper in LMRDA cases, see
Snyder v. Freight, Constr., Gen. Drivers, Warehousemen, &
Helpers, Local No. 287, 175 F.3d 680, 685-86 (9th Cir. 1999);
Waring v. Int’l Longshoremen’s Ass’n, Local 1414, 665
F.Supp. 1576, 1583 (S.D. Ga. 1987), but the Supreme
Court overruled their approach last year in Gross v. FBL
12 Nos. 08-1114, 08-1128, 09-2253, et al.
Financial Services, Inc., 129 S.Ct. at 2348, which applies
retroactively to this case. See Harper v. Va. Dep’t of
Taxation, 509 U.S. 86, 97 (1993). Mixed-motive theories of
liability are always improper in suits brought under
statutes without language comparable to the Civil Rights
Act’s authorization of claims that an improper consider-
ation was “a motivating factor” for the contested action.
Id. at 2350 n.3 (emphasis in original); see Serwatka v.
Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010);
Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009).
The LMRDA contains no such comparable language. It
provides, in relevant part, that “[i]t shall be unlawful for
any labor organization . . . to fine, suspend, expel, or
otherwise discipline any of its members for exercising
any right to which he is entitled under the provisions of
this chapter.” 29 U.S.C. § 529 (emphasis added). The word
“for” means “by reason of,” 6 Oxford English Dictionary
25 (1989), and “because of.” Id.; Webster’s Third New Int’l
Dictionary 886 (1981). These same definitions from the
LMRDA persuaded the Supreme Court to find that the
Age Discrimination in Employment Act’s parallel
language requires that “the plaintiff bears the burden of
persuasion to establish [a] ‘but-for’ cause” such that a
mixed-motive theory of liability would be improper in
any case brought under the statute. Gross, 129 S.Ct. at 2350-
51. And these same definitions parallel the jury instruc-
tion the district court gave in this case.
In sum, the district court properly rejected a mixed-
motive theory of liability, instructions that would have
embraced such a theory, and an instruction that would
Nos. 08-1114, 08-1128, 09-2253, et al. 13
have impermissibly shifted the burden of proof away
from the plaintiff. Instead, it provided an instruction that
“when considered in [its] entirety and not in isolation,
[was] sufficient to inform the jury of the applicable
law.” Alcala, 495 F.3d at 363.
B. Limiting Instruction Regarding Craig’s DUI Con-
victions
The local is on stabler ground in challenging the
district court’s limiting instruction regarding Craig’s
misdemeanor DUI convictions as erroneous, but it fails
because it cannot show prejudice. Two federal rules of
evidence govern the admission of Craig’s misdemeanor
DUI convictions. Rule 609 prohibits their admission to
attack Craig’s “character for truthfulness,” Fed. R.
Evid. 609(a); see United States v. Papia, 560 F.2d 827, 845 (7th
Cir. 1977), while Rule 404 permits their admission for
“other purposes,” Fed. R. Evid. 404(b), including to
attack the credibility of a witness’ testimony by means
other than attacking the witness’ general character for
truthfulness, which is prohibited by Rule 609. See United
States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996)
(describing five different ways to impeach a witness).
So evidence of Craig’s convictions was admissible, for
example, to impeach Craig by contradicting the sub-
stance of his testimony or showing that he had an
impaired ability to recall the event about which he was
testifying. Id.Had the district court so limited evidence of Craig’s
convictions, we would find no error although the instruc-
14 Nos. 08-1114, 08-1128, 09-2253, et al.
tion limited evidence of Craig’s singular “crime,” whereas
there was evidence that his crimes numbered three. The
court found that all three were relevant to “whether
[Craig] was even truthful or able to recall,” App. B. at 8, so
it does not matter which of the three DUI convictions
the instruction referenced. The first “offered an entirely
different reason” for Craig’s absence from the power
plant from the one he had given. Serafinn, 2007 WL
1670360, at *8. As for the other two, the local does not
explain how the district court erred in finding them ad-
missible for proper impeachment purposes. Specifically,
it does not claim that they failed to contradict anything
Craig said and failed to call into question Craig’s ability
to recall. “It is not the responsibility of this court to make
arguments for the parties,” Vaughn v. King, 167 F.3d 347,
354 (7th Cir. 1999), and even were we so inclined neither
party provided us a copy of the trial transcript. So we are
unable to find that the district court abused its discretion
in finding that all three DUI convictions were admissible
for proper impeachment purposes not barred by Rule 609.
But the district court abused its discretion by ad-
mitting the evidence for additional impeachment pur-
poses that were improper. The instruction limited the
jury to considering the convictions “in deciding whether
Timothy Craig’s testimony is truthful.” This broad cate-
gory of considering a witness’ testimony for truth-
fulness subsumes, as we have described, various
possible impeachment methods, some of which were
proper and others that were not. The instruction
allowed the jury to find Craig’s testimony untruthful
not only for the proper reason that evidence of his con-
Nos. 08-1114, 08-1128, 09-2253, et al. 15
victions contradicted his statements or called his
memory into question, but also for the improper reason
that evidence of his convictions called into question
his general character for truthfulness. This impermissible
use of evidence is exactly what Rule 609 prohibits.
But “even if the jury instruction was patently incorrect,
[the local] still must establish that it was prejudiced by
the improper instruction.” Gile v. United Airlines, Inc.,
213 F.3d 365, 375 (7th Cir. 2000). We will not order a
new trial unless, “considering all the instructions, the
evidence and the arguments, it appears that the jury was
misled and its understanding of the issues was seriously
affected to the prejudice of the complaining party.” EEOC
v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1283
(7th Cir. 1995) (quoting McGeshick v. Choucair, 9 F.3d
1229, 1232 (7th Cir. 1993)).
The local offers two reasons for why it was prejudiced
by the limiting instruction. First, it claims the instruction
drew attention to Craig’s convictions, thereby “casting
the local . . . (of which Craig was a member, and Serafinn
was not) in the same unfavorable light.” Appellant’s Br.
at 32. But this claim fails because “[w]e assume that
jurors follow[ed] the trial court’s instructions,” Bae v.
Peters, 950 F.2d 469, 481 (7th Cir. 1991) (citing Francis
v. Franklin, 471 U.S. 307, 324 n.9 (1985)), specifically ad-
monishing the jury not to consider Craig’s convictions
for any purpose other than to impeach Craig’s testimony.
The local also claims prejudice because Craig’s convic-
tions should have been admitted for the relevant, non-
impeachment purposes of showing Craig’s ineligibility
16 Nos. 08-1114, 08-1128, 09-2253, et al.
for referral at the power plant and the local’s selective
enforcement of the referral rules for Craig and against
Serafinn. But Serafinn, not the local, “wanted the jury
to consider the evidence for the separate [non-impeach-
ment] purpose.” Serafinn, 2007 WL 1670360, at *8.
Indeed, the local spends a large chunk of its brief arguing
why the evidence was relevant, but devotes nary a sen-
tence to why the evidence was relevant to its own case.
See, e.g., Appellant’s Br. at 32-40. Nor does it explain
how the instruction was anything other than advan-
tageous to its case to the detriment of Serafinn. Without
being able to show prejudice to its own case, no new trial
is warranted.
C. Limiting Instruction Regarding the Joint Council’s
Hearing
Finally the local argues that the district court erred by
further instructing the jury to disregard the correctness
of the joint council’s finding that Serafinn violated
the referral rules in deciding the local’s motive for prose-
cuting him. See, e.g., Appellant’s Br. at 27, 32-33, 39; Reply
Br. at 9-11. The district court found this argument
“waived,” Serafinn, 2007 WL 1670360, at **5-6 (citing
Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 n.1
(7th Cir. 2004) (“We have repeatedly made clear that
perfunctory and undeveloped arguments that are un-
supported by pertinent authority, are waived.”)), a
finding that the local does not dispute on appeal, so
unlike the other challenged decisions here we do not
review this one for an abuse of discretion. Nor do we
Nos. 08-1114, 08-1128, 09-2253, et al. 17
review the instruction for plain error, because the local
has not bothered to explain why it would be proper for
us to do so despite the local’s waiver in the district court.
See City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 259-60
(1987) (discussing factors bearing on the propriety of
reviewing a civil jury instruction for plain error); cf. City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981)
(allowing for plain-error review of civil jury instructions
only in extraordinary circumstances). Arguments not
raised on appeal are waived. See, e.g., United States v.
Clinton, 591 F.3d 968, 971 (7th Cir. 2010).
D. Denial of Relief from Summary Judgment
We move to Serafinn’s cross-appeal. Only Federal Rule
of Civil Procedure 60(b) governed the district court’s
denial of Serafinn’s post-trial challenges to the joint coun-
cil’s award of summary judgment, R. 294, although
Serafinn also moved to alter or amend the judgment
under Rule 59 so that we might review his loss at sum-
mary judgment de novo. See Petru v. City of Berwyn,
872 F.2d 1359, 1361 (7th Cir. 1989) (detailing the factors
necessary to treat an appeal from a Rule 59 motion as an
appeal from the underlying judgment). The problem
with reviewing Serafinn’s motion under Rule 59 is that
he filed it four months after the district court entered
summary judgment, rather than within ten days as re-
quired by the rules then in effect, so we treat it as a
Rule 60(b) motion for relief. See Kiswani v. Phoenix Sec.
Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009); see also
18 Nos. 08-1114, 08-1128, 09-2253, et al.
Fed. R. Civ. P. 6(b)(2) (preventing a district court
from extending the time to file a Rule 59 motion).
So our focus is on Rule 60(b), under which Serafinn
needs to show by clear and convincing evidence that the
district court would not have granted summary judg-
ment had it known the additional evidence adduced at
trial. See Gomez, 867 F.2d at 405 (finding that Rule 60(b)(2)
requires an appellant to show that “the new evidence is
likely to change the outcome”); Lonsdorf v. Seefeldt, 47
F.3d 893, 897 (7th Cir. 1995) (finding that Rule 60(b)(3)
requires the appellant to prove that fraud prevented the
full and fair presentation of a meritorious case). In sum,
Rule 60(b) requires at a minimum that the previously
unavailable evidence be non-cumulative.
Serafinn’s claim fails because he cannot show that
evidence revealed at trial against the local was any-
thing other than cumulative to the mix of information
previously found by the district court to have created
no genuine issue either as to the joint council’s role in
retaliating against Serafinn or as to the joint council’s bias.
As for retaliation, the district court had considered the
following information when it determined that Serafinn
provided insufficient evidence for a jury to find that the
joint council charged Serafinn because he exercised his
right to free speech: “more than ‘some evidence’ ” that
Serafinn had violated the referral rules, no evidence that
anyone similarly situated as an executive officer had
done so, and evidence demonstrating Serafinn’s “history
of antagonism with Gleason.” Serafinn v. Int’l Bhd. of
Teamsters, Local Union No. 722, No. 03 C 9409, 2006 WL
Nos. 08-1114, 08-1128, 09-2253, et al. 19
2497794, at **8, 10 (N.D. Ill. Aug. 28, 2006); Appellant’s
Br. at 37 (quoting the trial transcript). We compare
this with the additional evidence adduced at trial that
before the joint council brought charges against Sera-
finn, Gleason had met privately with new ly-
elected Mongan to discuss Serafinn’s interference with
Mongan’s leadership of the local, had called the interna-
tional organization who then sent Bill Moore to help
prevent the interference, and had conducted a confer-
ence call with the joint council discussing the interfer-
ence. In conducting the comparison, we find that the latter
set of evidence was cumulative to the former under
both the direct and indirect methods of proving retaliation.
Under the direct method, Serafinn needed to show
either direct evidence or a “convincing mosaic of circum-
stantial evidence” that the joint council charged him
with violating the referral rules because he exercised his
right to free speech. E.g., O’Neal v. City of Chicago, 588
F.3d 406, 410 (7th Cir. 2009). None of Serafinn’s evidence
is direct. And if a history of antagonism with Gleason
did not provide a convincing mosaic of circumstantial
evidence when the district court granted summary judg-
ment, none is created now by overlaying evidence sug-
gesting only that Gleason wanted Serafinn to stop under-
mining Mongan’s authority—not that Gleason wished
to accomplish this end by actionable means.
Under the indirect method, Serafinn needed to show
at least that he was treated differently from similarly
situated union members who did not exercise their right
to free speech. See, e.g., Ford v. Minteq Shapes and Servs., Inc.,
20 Nos. 08-1114, 08-1128, 09-2253, et al.
587 F.3d 845, 848 (7th Cir. 2009). Serafinn fails this test
because the additional evidence shed no new light
on whether the local had previously disciplined other
executive officers for referral rule violations. Of course,
we do not decide whether an entity may hold members
in a “leadership position” to “a higher standard of con-
duct.” See Luks v. Baxter Healthcare Corp., 467 F.3d 1049,
1056 (7th Cir. 2006) (finding this position “arguably”
correct). We hold only that the district court considered
certain evidence in reaching this position, Appellant’s
Br. at 36-38 (quoting the trial transcript), and that addi-
tional evidence adduced later was cumulative for pur-
poses of Rule 60(b).
So much for Serafinn’s claim that the additional
evidence was non-cumulative evidence of retaliation. He
also claims that the additional evidence was non-cumula-
tive evidence of the joint council’s bias, because it
revealed improper ex parte contacts and demonstrated
that the joint council commingled its prosecutorial and
adjudicatory functions. But the contacts between Gleason
and Mongan that Serafinn calls “ex parte” took place
three months before the disciplinary proceedings
began, and Serafinn provides no evidence that the con-
tacts tainted the proceedings much less related to them. Cf.
Prof’l Air Traffic Controllers Org. v. Fed. Labor Relations
Auth., 658 F.2d 547, 565-66 (D.C. Cir. 1982) (discussing
relevant factors for finding that ex parte communications
tainted an agency’s decision). Moreover, mere commin-
gling of prosecutorial and adjudicatory functions are
insufficient to show bias. See Withrow v. Larkin, 421 U.S. 35,
54 (1977). Even if they were sufficient, the additional
Nos. 08-1114, 08-1128, 09-2253, et al. 21
evidence demonstrates nothing new to indicate Gleason’s
prosecutorial role in this case, as we discussed above,
much less any new “specific factual allegations from
which the operation of bias can be inferred.” See Frye v.
United Steelworkers of Am., 767 F.2d 1216, 1225 (7th Cir.
1985), rev’d on other grounds, Meyer v. Rigdon, 36 F.3d
1375, 1380 (7th Cir. 1994).
E. Attorneys’ Fees
At last we address Serafinn’s challenge to the amount
of attorneys’ fees the district court saw fit to award him.
The rule governing a district court’s grant of attorneys’
fees lies in its equitable power to do so “when the
interests of justice require.” Hall v. Cole, 412 U.S. 1, 4-5
(1973). The district court was free to consider relevant
factors including the nature of the attorneys’ work, the
benefit of the suit to other union members, and the
local’s ability to pay. See id. at 4-5; Munson v. Friske, 754
F.2d 683, 697 (7th Cir. 1985); see also Moriarty v. Svec, 429
F.3d 710, 717 (7th Cir. 2005) (listing additional factors).
Multiple equitable factors govern the crafting of an at-
torneys’ fees award, so “[d]istrict courts have wide dis-
cretion to determine what constitutes reasonable attor-
neys’ fees.” Moriarty, 429 F.3d at 717.
Serafinn cannot show that the district court abused its
discretion. First, it cannot show that the district court
erred in finding that the amount of time his attorneys
spent was “not appropriate.” R. 365 at 4. Indeed, we see
evidence of his attorneys inappropriately wasting every-
one’s time in this court by unsupportedly contradicting
22 Nos. 08-1114, 08-1128, 09-2253, et al.
facts found by the district court. Compare Appellee’s Br.
at 14 (“Defendants’ claims are false that Serafinn’s referral
of himself for training violated any union or referral
rules.”), with Serafinn, 2006 WL 2497794, at *11 (“Plaintiff’s
own actions and testimony demonstrate that he needed
a referral for training.”). More importantly, Serafinn
makes no argument that the district court should not
have considered the local’s ability to pay in crafting an
appropriate award. Indeed, the local contends that even
the reduced award, coupled with the judgment rendered
in this case, exceeds its net worth. Appellant’s Br. at 10-11.
Serafinn does not dispute this, dispute its relevance by
showing that the international organization’s net worth
is the more relevant figure to examine, or explain why
the district court otherwise erred in considering it. We
have considered the district court’s analysis and find
its award of attorneys’ fees entirely reasonable.
III. CONCLUSION
The local’s claims of error fail because they dispute
jury instructions either that actually benefitted it or for
which the local waived any challenge. Serafinn’s cross-
appeal of the district court’s denial of relief from sum-
mary judgment fails because the new evidence he asks us
to consider is cumulative, and his cross-appeal regarding
his attorneys’ fees award fails because he neglected to
refute the district court’s reasons in crafting it. The par-
ties’ other arguments are without merit and warrant
no discussion. Therefore, we A FFIRM .
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