CONCLUSION

Defendants’ renewed motion for judgment as a matter of law or alternatively, a new trial is
denied. Higdon’s motion to alter or amend the judgment is granted in part and denied in part.
Higdon is awarded prejudgment interest in the amount of $1,555.00 and postjudgment interest at the
statutory rate until judgment is satisfied. Entenmann’s is ordered to reinstate Higdon to his former
position of route sales representative with seniority and benefits that would have accrued had Higdon
not been discharged. Higdon is entitled to $448.00 per week in back pay from the date of the jury’s
verdict until he is reinstated. Higdon is awarded attorneys’ fees in the amount of’ $35,482.33, which
will continue to accrue at a rate of $149.33 per week until his reinstatement plus one-third the
amount of postjudgment interest until judgment is satisfied. Entenmann’s is enjoined from future
violations of the CBA in relation to Higdon. Local 734 is enjoined from breaching its duty of fair

representation in relation to Higdon.
August 7, 2002 ENTER:

Suzann#/B. Conlon
United States District Judge

13


presented at trial, a reasonable jury could conclude Garcia was comparable to Higdon, while
Montgomery was not.

In any event, the jury could reasonably conclude Higdon was not terminated for just cause
based on Entenmann’s initial reaction to Higdon’s outstanding balance. U; pon learning of Higdon’s
outstanding balance, division sales manager Joe Schuch issued a documented verbal warning in
accordance with Entenmann’s practice of progressive discipline. Human resources director John
Engler then waited four months after learning of Higdon’s original outstanding balance and two
months after learning of his revised outstanding balance to terminate his employment. Although
Engler thereafter received notice that other route sales representatives had outstanding balances,
Engler did not pursue the issue. The evidence presented at trial adequately supports the jury’s
verdict that Higdon was terminated without just cause in violation of the CBA.

2. Termination for Union Activity

Under the CBA, Entenmann’s may not terminate an employee for engaging in union activity
on their own time. Defendants claim Higdon failed to present evidence linking his termination to
his union activities. Specifically, defendants argue Engler’s statements that he “regretted suspending
[Sladek] and Hull, but not Higdon” after engaging in union activity on company time and that
Higdon “always files protests” does not demonstrate union animus. To the contrary, the jury was
entitled to infer Engler regretted suspending Sladek and Hull, rather than Higdon, because Higdon
was the one “always fil[ing] protests.”

Moreover, the jury was entitled to conclude Engler terminated Higdon because of his
numerous grievances and protests. Engler, knowing that other route sales representatives may be

carrying outstanding balances, only asked for an audit of Higdon’s account. At that time, Engler


However, Entenmann’s has not demonstrated that Higdon’s direct supervisors question his ability
to perform the responsibilities of a route sales representative. To the contrary, Schuch only gave
Higdon a documented verbal warning upon learning of his outstanding balance. In any event, the
court must respect the findings implied by the jury’s verdict in fashioning equitable remedies.
Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 458-59 (7th Cir. 1996). Implicit in the jury’s verdict is
the finding that Higdon’s outstanding balance did not warrant termination. Therefore, Entenmann’s
concerns about Higdon’s performance does not preclude reinstatement.

Nevertheless, Entenmann’s argues “there are currently no other openings for [route sales
representatives] in the Chicago area, which includes the Northlake, Addison and Crestwood depots.”
Response at 2. Inresponse, Higdon offers the declaration of Don Hull, a route sales representative
at Entenmann’s Addison location, who avers he informed Entenmann’s and Local 734 in June 2002
that he would be retiring effective August 3, 2002. According to Hull, his position will be placed
for bid in September 2002 when he exhausts his accrued vacation time. Hull’s retirement allows
Higdon’s reinstatement without displacing another employee. Under these circumstances, the
preferred remedy of reinstatement is appropriate.

B. Back Pay

Higdon next advances two grounds for an increase in his back pay award. First, Higdon
claims back pay in the amount of $448.00 from the date of the jury’s verdict through the date of his
reinstatement is necessary to make him whole. Entenmann’s does not dispute this amount.
Therefore, Higdon is granted $448.00 per week in additional back pay until he is reinstated.

Second, Higdon requests an additional $10,000 in back pay, claiming the jury improperly

deducted the amount of his unemployment compensation from its award. The record is devoid of

9


against one of its own, Robert Brooks. At the time of his suspension, Higdon had already filed a pre-
election protest against Brooks individually. Nevertheless, Brooks represented Higdon at the
grievance meeting held in connection with his suspension. At the grievance meeting, Higdon
informed the attendees, including Brooks, that other route sales representatives, including Garcia,
carried outstanding balances. After the grievance meeting, Higdon filed a second protest against
Brooks, claiming a conflict of interest prevented Brooks from adequately representing him. Engler
fired Higdon approximately two weeks later.

After his termination, Higdon filed a second grievance. Despite Higdon’s complaint, Local
734's executive board allowed Brooks to continue to represent Higdon in connection with his
termination. Rather than requesting a grievance meeting, Brooks spoke to Engler privately without
Higdon present. When Engler denied Higdon’s grievance, Brooks presented Higdon’s case to the
executive board for a decision on arbitration. The executive board was comprised of the same
individuals who criticized Higdon and requested his expulsion from Local 734 during the very close
1999 election. At trial, Brooks admitted that he did not seek documentation relating to the route
sales representatives identified by Higdon nor did he tell the executive board that other route sales
representatives may have similar outstanding balances. As a result, Local 734's outside counsel did
not have this information in recommending that Local 734 not arbitrate Higdon’s grievance. Based
on the evidence presented at trial, a jury could reasonably find Local 734, through Brooks and/or the
executive board, intentionally undermined Higdon’s grievance based on his union activities.

In sum, the jury was entitled to weigh the conflicting evidence, evaluate the credibility of the

witnesses, and determine whether the evidence supported Higdon’s claims. Based on the record, the


knew Higdon had filed a protest three weeks earlier. According to Entenmann’s, Engler made the
request when he learned of Higdon’s balance upon returning from a business trip. Nevertheless, the
jury was entitled to infer Engler’s true motivation was Higdon’s union activity, especially when
Engler terminated Higdon’s employment approximately two weeks after Higdon lodged a second
protest against several Entenmann’s employees, including Engler. See Fyfe v. City of Fort Wayne,
241 F.3d 597, 601-02 (7th Cir. 2001)(timing may provide the necessary causal nexus where the
adverse action follows fairly soon after the protected activity). The evidence presented at trial,
including evidence of Entenmann’s cordial business relationship with Local 734's current leadership,
adequately supports the jury’s verdict.
B. Breach of Duty of Fair Representation

Defendants next claim Higdon failed to present a legally sufficient basis for the jury to find
Local 734 breached its duty of fair representation. A union breaches its duty of fair representation
in handling a grievance when its conduct is arbitrary, discriminatory or in bad faith. Crider, 130
F.3d at 1243. For example, a union may breach its duty of fair representation by intentionally
undermining an employee’s grievance based on his political allegiances within the union, Thomas
v. United Parcel Service, Inc., 890 F.2d 909, 923 (7th Cir. 1989). A union member may have a valid
claim if his representative tainted the grievance process with personal hostility. Conn v. GATX
Terminals Corp., 18 F.3d 417, 421 (7th Cir. 1994).

Defendants argue Local 734's willingness to pursue Higdon’s grievances in 1997 and 1999
establishes its good faith in processing his grievances in 2001. Defendants’ argument fails to
account for the parties’ subsequent strained relations. In 2001, Local 734's executive board, which

barely won the hotly contested 1999 election, was once again faced with Higdon running for office

5


Bruso, 239 F.3d at 862. “If ‘hostility common to litigation’ would justify a denial of reinstatement,
reinstatement would cease to be a remedy except in cases where the defendant felt like reinstating
the plaintiff.” EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1462 (7th Cir. 1992).
According to Entenmann’s, the parties’ hostility derives from Higdon’s “multiple charges and/or
claims against Entenmann’s, Mr. Engler and members of Local 734's Executive Board with various
governmental and union organizations.” Response at 3. Any animosity arising from the protected
union activity underlying Higdon’s lawsuit cannot be a basis for denying reinstatement.
Entenmann’s next claims the nature of the route sales representative position supports a .
denial of reinstatement. Specifically, Entenmann’s claims Higdon’s “expressed perception that his
employer and his union are ‘out to get him’ will inevitably permeate and sour his relationships with
Entenmann’s customers and the public Entenmann’s serves.” Response at 3. Entenmann’s argument
ignores the parties’ history. Higdon filed charges and/or claims against Entenmann’s, Engler and
members of Local 734's executive board in 1996, 1999, 2000 and 2001. Entenmann’s never claimed
that Higdon’s animosity toward the company spilled over into his relationships with Entenmann’s
customers during this five year period. Nor has Entenmann’s demonstrated that Higdon’s alleged
animosity has worsened subsequent to his termination. On this record, the court cannot conclude
Higdon’s reinstatement will adversely affect Entenmann’s relationship with its customers.
Finally, Entenmann’s claims Higdon cannot be trusted to competently and completely
perform the responsibilities of a route sales representative given the amount and duration of the
outstanding balance leading to his termination. As Entenmann’s points out, reinstatement is
unavailable where the plaintiff would no longer enjoy the confidence and respect of his superiors.

Tennes v. Commonwealth of Massachusetts, Dep’t of Revenue, 944 F.2d 372, 381 (7th Cir. 1991).


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Suzanne B. Conlon than Assigned Judge
CASE NUMBER 01 C 6972 DATE 8/7/2002
CASE ROBERT HIGDON vs. ENTENMANN’S SALES CO., INC., et al.
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(@) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
@G) Oo Answer brief to motion due. . Reply to answer brief due
(4) o Ruling/Hearing on. set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) Oo {Bench/Jury trial] [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(m) (CiGeneralRule21 CIFRCP41(a\(1) CI FRCP41(a\(2).
ao [Other docket entry] | Defendants’ renewed motion for judgment as a matter of law [70-1], or
alternatively, motion for a new trial [70-2] is denied. Plaintiff’s Rule 59(e) motion to alter and amend
[68-1] judgment is granted in part and denied in part. Judgment entered June 20, 2002 [65-1] is vacated.
The parties shall submit a proposed final judgment order consistent with this opinion by August 30, 2002,
calculating amounts to be paid by each defendant through satisfaction of judgment, including
reinstatement.. ENTER MEMORANDUM OPINION AND ORDER.
3 Gule)
dl) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. urbe of notices
/ | Notices mailed by judge’s staff. A UG 0 8 2002
Notified counsel by telephone. date docketed
Docketing to mail notices. (YY pp ()
Mail AO 450 form. te ae
st eff Mepty ntnts
Copy to judge/magistrate judge. 1403 oly 1S ia’s'n Vs oon
vest 1
courtroom Wg Le an 20 date mailed notice
cB deputy’s eO% he pw
initials
Cj Déetimg receiddacin
“central Clerk’s Office ‘mailing deputy initials



D. Interest

Higdon requests prejudgment and postjudgment interest on the jury award. Entenmann’s
does not object to the award of postjudgment interest at the statutory rate from the date of judgment
to the date of satisfaction. 28 U.S.C. § 1961(a). Rather, Entenmann’s claims the court should
exercise its discretion to deny Higdon’s claim for prejudgment interest as inappropriate.

A district court’s discretion to deny prejudgment interest is limited. Hutchison v. Amateur
Electronic Supply, Inc., 42 F.3d 1037, 1046 (7th Cir. 1994). Indeed, prejudgment interest is
presumptively available to victims of federal law violations. Jd, quoting Gorenstein Enterprises v.
Quality Care-USA, 874 F.2d 432, 1436 (7th Cir. 1989). Entenmann’s has not offered any basis for
the denial of prejudgment interest. Therefore, Higdon is entitled to prejudgment interest in the
amount of $1,555.

E. Attorneys’ Fees and Costs

Higdon seeks attorneys’ fees and costs. A plaintiff in a successful hybrid 301 suit may
recover attorneys’ fees as compensatory damages. See Bennett v. Local Union No. 66, 958 F.2d
1429, 1439 (7th Cir. 1992)(“When there is a legal duty to provide [union] representation, whether
that duty arises out of contractual undertaking, or, as here, by operation of law, if the representation
is wrongfully withheld the cost of substitute representation should be recoverable damages”).
Higdon seeks attorneys’ fees in the amount of $62,287.50, representing 249.15 hours of work at an
hourly rate of $250.00. Defendants do not contest the reasonableness of the hours spent or rate
charged by Higdon’s attorneys. Rather, Entenmann’s argues Higdon’s attorneys’ fees should be

reduced to $34,160.50, the amount of Higdon’s liability under the fee agreement with his attorneys.

11


any basis for Higdon’s claim. Indeed, Higdon’s unemployment compensation amounted to
$10,842.00, $842.00 more than the $10,000 deduction purportedly taken by the jury. Nevertheless,
Higdon fails to offer evidence he was not made whole through the jury’s verdict. See United States
Can Co. v. NERB, 254 F.3d 626, 634 (7th Cir. 2001)(“What is important for compensation is not
whether benefits pass through financial intermediary, but whether the victim is put in the same
position he would have occupied had his rights been respected”). Under these circumstances, the
court will not disturb the jury’s verdict. See EEOC v. O’Grady, 857 F.2d 383, 390 (7th Cir.
1988)(decision to deduct collateral benefits such as unemployment benefits is within the district
court’s sound discretion).
Cc. Injunctive Relief

Higdon requests an order enjoining Entenmann’s from future violations of the CBA and
Local 734 from future violations of its duty of fair representation. In determining whether injunctive
reliefis appropriate, the court must determine whether the conduct could persist in the future. Bruso,
239 F.3d at 864. Higdon succeeded in persuading the jury that Entenmann’s violated the CBA and
Local 734 breached its duty of fair representation in connection with his termination. Defendants
have not offered evidence supporting their claim that their conduct will not occur again. To the
contrary, the same individuals responsible for Higdon’s termination remain in positions of power
at Entenmann’s and Local 734. Under similar circumstances, the Seventh Circuit concluded the
district court abused its discretion in refusing to award any injunctive relief in light of the jury’s
verdict in favor of the plaintiff. Jd, Therefore, an injunction prohibiting future violations is required

to provide Higdon with the legal protection he won at trial.

10


court cannot conclude the verdict lacks evidentiary support. Accordingly, defendants’ motion for
judgment as a matter of law, or alternatively, a new trial must be denied.
I. Higdon’s Motion to Alter or Amend Judgment

Higdon moves to alter or amend the judgment to include reinstatement or front pay,
additional back pay, injunctive relief, prejudgment and postjudgment interest, attorneys’ fees and
costs and a finding of joint and several liability. Entenmann’s objects to Higdon’s requests with the
exception of his request for postjudgment interest. Local 734 addresses only Higdon’s request for
injunctive relief and attorneys’ fees.

Congress has not specified the remedies available in a § 301 hybrid action. See IBEW v.
Foust, 99 8.Ct. 2121, 2125 (1979). However, the Supreme Court has recognized “the fundamental
purpose of unfair representation suits is to compensate for injuries caused by violations of employee
rights.” Id. at 2125-26. “{R]elief in each case should be fashioned to make the injured employee
whole.” Jd. at 2126.
A. Reinstatement or, Alternatively, Front Pay

Higdon requests reinstatement with full seniority and benefits. Reinstatement, rather than
front pay, should be awarded when feasible. Bruso v. United Airlines, Inc., 239 F.3d 848, 861-62
(7th Cir. 2001). In determining whether reinstatement is feasible, the court may consider a number
of factors, including the parties’ working relationship and the availability of a position. Downes v.
Volkswagen of America, Inc., 41 F.3d 1132, 1141 (7th Cir. 1993).

Entenmann’s claims the history of animosity between the parties precludes an award of
reinstatement. “A court must be careful +++ not to allow an employer to use its anger or hostility

toward the plaintiff for having filed a lawsuit as an excuse to avoid the plaintiff’s reinstatement.”


A. Breach of the CBA

Defendants first claim Higdon failed to present a legally sufficient basis for the jury to find
he was terminated without just cause or for his union activities. In doing so, defendants rehash the
arguments made in their motion for summary judgment as well as their two previous motions for
judgment as a matter of law.

1. Termination for Just Cause

Under the CBA, Entenmann’s may terminate an employee only for just cause. “Just cause
is a flexible concept, embodying notions of equity and fairness. Crider y. Spectrulite Consortium,
Inc., 130 F.3d 1238, 1241 (7th Cir. 1997), quoting Arch of Illinois, Div. of. Apogee Coal Corp. v.
District 12, United Mine Workers of America, 85 F.3d 1289, 1294 (7th Cir. 1996). In order to be
just, the penalty must be consistent with the seriousness of the offense. Jd. at 1242.

Defendants claim Higdon failed to present evidence that other route sales representatives
carried an outstanding case balance for a » similar duration, but were not disciplined, Specifically,
defendants argue Higdon should be compared to George Montgomery, who “involuntarily resigned,”
rather than other route sales representatives who had outstanding balances in November 2000.
Contrary to defendants’ position, Higdon presented evidence that other route sales representatives
were not disciplined for having outstanding balances at the time Higdon received the written warning
that ultimately led to his discharge. At that time, one route sales representative, George Garcia,

owed almost as much as Higdon for at least a ten month period. Hi edon also presented evidence that
Montgomery: (1) failed to turn in his cash stop money daily after the November 13, 2000 reminder
was posted; (2) Montgomery issued a check drawn on insufficient funds to pay the outstanding

balance; and (3) Entenmann’s gave Montgomery the option of resigning. Based on the evidence


The parties filed timely post-trial motions. Defendants move for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(b) or alternatively, for anew trial pursuant to Federal
Rule of Civil Procedure 59. Higdon moves to alter or amend the judgment pursuant to Federal Rule
of Civil Procedure 59(e) to include reinstatement or front pay, additional back pay, injunctive relief,
prejudgment and postjudgment interest, attorneys’ fees and costs and a finding of joint and several
liability.

DISCUSSION

I. Defendants’ Motion for Judgment
as a Matter of Law or Alternatively, A New Trial

Judgment as a matter of law under Rule 50 is appropriate when “a party has been fully heard
on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue.” Cefalu v. Village of Elk Grove, 211 F.3d 416, 422 (7th Cir. 2000), quoting Fed.
R. Civ. P. 50(a)(1). In deciding a motion for judgment as a mater of law, the court must consider
“whether the evidence presented, combined with all reasonable inferences permissibly drawn
therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party
against whom the motion is directed.” Mathur v. Board of Trustees of Southern llinois University,
207 F.3d 938, 941 (7th Cir. 2000), quoting Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.34
627, 629 (7th Cir. 1996). The court may not substitute its view of the contested evidence for that
of the jury. Mathur, 207 F.3d at 941.

Similarly, a Rule 59 motion for a new trial should be granted if the jury’s verdict was against
the weight of the evidence, the damages were excessive, or the trial was unfair. Westchester Fire
Ins. Co. v. General Star Indemnity Co., 183 F.3d 578, 582 (7th Cir. 1999). A jury verdict will not

be set aside if there exists a reasonable basis in the record to support the verdict. Id.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT HIGDON, )
)

Plaintiff, ) No. 01 C6972
)

v. ) Suzanne B. Conlon, Judge

)
ENTENMANN’S SALES COMPANY, INC. )
and INTERNATIONAL BROTHERHOOD OF )
TEAMSTERS LOCAL 734, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Robert Higdon (“Higdon”) sued Entenmann’s Sales Company, Inc. (“Entenmann’s”) and
International Brotherhood of Teamsters Local 734 (“Local 734")(collectively, “defendants”) for
violations of § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. 141 et seq.
Specifically, Higdon claimed Entenmann’s breached the collective bargaining agreement (“CBA”)
with Local 734 by terminating him without just cause and for his union activity. Higdon also
claimed Local 734 breached its duty of fair representation by failing to adequately contest his
suspension and termination. The court denied defendants’ motions for summary judgment and set
the case for trial. See Higdon v. Entenmann’s Sales Co., Inc., 2002 WL 653896 (N.D. Ill. Apr. 19,
2002). The court denied defendants’ motions for judgment as a matter of law at the close of
Higdon’s case and at the close of all the evidence. On June 19, 2002, the jury returned a verify Pe,

a)
Higdon’s favor in the amount of $37,300.00. G 6 ly
Mp


eR SRE

Unlike fee-shifting statutes, Higdon’s recovery for attorneys’ fees as part of his compensatory
damages is limited to the amount he actually expended in prosecuting his case. See Endicott v.
Huddleston, 644 F.2d 1208, 1217 (7th Cir. 1980)(plaintiff entitled to recover compensatory damages
in the amount of attorneys’ fees expended). Pursuant to the fee agreement entered into with his
attorneys, Higdon is not obligated to pay his attorneys for all hours worked on his behalf. Instead,
Higdon is required to pay his attorneys $5,500 plus one-third of his recovery, including one-third of
his first year salary if he is reinstated. To date, Higdon is liable for $35,482.33 ($5,500 +
1/3($37,300 + $1,115) + 1/3($991/Aweek x 52 weeks) in attorneys’ fees. Higdon’s attorneys’ fees
continue to accrue in the amount of $149.33 per week (1/3 x $448.00) until his reinstatement plus
one-third of the amount of postjudgment interest until judgment is satisfied.

Higdon’s request for costs duplicates his bill of costs. The court will consider Higdon’s bill
of costs after receiving defendants’ response.

F. Joint and Several Liability

Finally, Higdon asks the court to apportion damages between Entenmann’s and Local 734.
During the pretrial conference, the parties agreed to seek court intervention only ifEntenmann’s and
Local 734 could not apportion damages between themselves. According to Entenmann’s, “[i]t is not
necessary . . . for the Court to apportion the damages between Entenmann’s and Local 734 at this
time” because “[bJoth [dJefendants are committed to determine the apportionment of damages
between themselves.” Response at 14. Therefore, the partiés shall submit a proposed final judgment
order consistent with this opinion by August 30, 2002, calculating amounts to be paid by each

defendant through satisfaction of judgment, including reinstatement.

12