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

MARK SERAFINN,

Plaintiff-Appellee/

Cross-Appellant,

v.

LOCAL 722, INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Defendant-Appellant/

Cross-Appellee,

and

STEVEN MONGAN and JOINT COUNCIL 65 OF THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

INTERNATIONAL UNION,

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.

ARGUED FEBRUARY 8, 2010—DECIDED MARCH 12, 2010
2 Nos. 08-1114, 08-1128, 09-2253, et al.

Before BAUER, EVANS and TINDER, Circuit Judges.

BAUER, Circuit Judge. Mark Serafinn sued his local

union and the joint council comprising leaders from

his and other regional locals. He claimed that they impaired 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 conviction 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 workreferral 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 occupation “from airline pilots to zookeepers.” See

http://www.teamster.org/content/teamsters-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 supporter 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 published a newsletter accusing Mongan of cronyism, dumbness, 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 council’s order that Serafinn pay restitution and be suspended 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 disciplinary 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 workreferral 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 anything 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 instruction 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 requested. 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 convictions 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 conference call with the joint council. The district court

considered this evidence, finding nothing new to “reasonably 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, standards, and precedents govern, the district court’s discretion 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 burdenshifting 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 consideration was a “motivating factor” of the defendant’s contested 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 mixedmotive 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 consideration. See, e.g., Mt. Healthy, 429 U.S. at 287.

Here the district court rejected Serafinn’s proposed

motivating-factor instruction, leaving no motivatingfactor 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 instruction 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 butfor cause instruction maintains the burden of persuasion

on the plaintiff, giving a tie to the local, the local’s proposed composite instruction shifts the burden of persuasion 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 illadvised 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 mixedmotive 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 consideration 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 instruction the district court gave in this case.

In sum, the district court properly rejected a mixedmotive 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 Convictions

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 substance 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 admissible 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 admitting the evidence for additional impeachment purposes that were improper. The instruction limited the

jury to considering the convictions “in deciding whether

Timothy Craig’s testimony is truthful.” This broad category of considering a witness’ testimony for truthfulness 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 admonishing 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 convictions should have been admitted for the relevant, nonimpeachment 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-impeachment] 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 sentence 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 advantageous 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 prosecuting 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 unsupported 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 council’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 summary 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 required 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 judgment 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 anything 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 Serafinn, Gleason had met privately with newlyelected Mongan to discuss Serafinn’s interference with

Mongan’s leadership of the local, had called the international organization who then sent Bill Moore to help

prevent the interference, and had conducted a conference call with the joint council discussing the interference. 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 circumstantial 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 judgment, none is created now by overlaying evidence suggesting only that Gleason wanted Serafinn to stop undermining 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 conduct.” 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 additional evidence adduced later was cumulative for purposes 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-cumulative 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 contacts 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 commingling 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 attorneys’ fees award, so “[d]istrict courts have wide discretion to determine what constitutes reasonable attorneys’ 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 everyone’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 crossappeal of the district court’s denial of relief from summary 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 parties’ other arguments are without merit and warrant

no discussion. Therefore, we AFFIRM.

3-12-10