In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1484

SUSAN BLUE,

Plaintiff-Appellee,

v.

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS LOCAL UNION 159,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 09-cv-395-wmc—William M. Conley, Chief Judge.

ARGUED SEPTEMBER 20, 2011—DECIDED APRIL 2, 2012

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. In 2009, Susan Blue sued her

former employer, International Brotherhood of Electrical

Workers, Local 159 (IBEW), alleging retaliation for opposing the discrimination of an African-American electrician. The jury found in favor of Blue and awarded

her $202,396.76 in damages. IBEW filed several

post-trial motions with the district court, seeking a new
2 No. 11-1484

trial or relief from the judgment on the grounds that

the district judge erred in admitting certain evidence

and that the weight of the evidence favored IBEW. The

district court denied IBEW’s motions, and now IBEW

appeals. Although, as we explain below, our jurisdiction

on this appeal is limited, we find no error with the

district court’s decisions, and we therefore affirm.

I

For over 30 years, Blue was an administrative assistant

at IBEW. There is ample evidence that Blue’s work was

excellent: Union members frequently relied on Blue for

information on union benefits or obligations; her colleagues described her as professional, knowledgeable,

and reliable; and at least one former supervisor described

her job performance as “outstanding.” During the events

at issue in this case, Blue’s supervisor at IBEW was Billy

Harrelson, and until the contested period, there is

no indication that Harrelson ever criticized or disciplined her.

In early 2006 Alexander Phillips filed a complaint of

race discrimination against IBEW with the Madison

Equal Opportunities Commission (MEOC). Phillips’s

complaint alleged that his information was removed

from the IBEW referral book and his union initiation

fee was returned to him because of his race (AfricanAmerican). Blue learned of the complaint’s contents

after it was mailed to the IBEW office. Around the

same time, Blue also discovered that Harrelson had

allowed a white electrician to sign the referral book
No. 11-1484 3

without paying his initiation fee. Concerned about this

disparity, Blue questioned Harrelson about the apparent discrimination.

Harrelson retaliated: Blue presented evidence that

she was stripped of her essential job duties, denied overtime opportunities, and subjected to a hostile work environment. As Phillips’s case at the MEOC progressed,

Harrelson’s harsh treatment of Blue intensified. The

MEOC mailed several questionnaires to IBEW to be

filled out by selected workers, including Blue. Harrelson

demanded that Blue go through IBEW’s attorney before

answering the MEOC’s questions. Blue, however, was

worried that the attorney would modify her answers,

and so, on April 6, 2006, she mailed her responses

directly to the MEOC and sent a copy to IBEW’s lawyer.

At that point, Harrelson began to discipline Blue for

minor infractions. He accused her of being “excessively

tardy” despite evidence that Blue was usually on time

and never more than five minutes late. On February 14,

2007, the MEOC scheduled a public hearing on

Phillips’s case, and a few days later, IBEW took four

disciplinary actions against Blue—all of which were

eventually vacated by Harrelson’s successor. Over the

next several months, Harrelson’s campaign of retaliation escalated: Blue received additional formal disciplinary measures, she was suspended without pay,

and she was driven to take medical leave to escape

the emotional stress wrought by her work environment.

Blue finally filed her own complaint with the MEOC,

alleging retaliation, and she later brought her case to

the District Court for the Western District of Wisconsin.
4 No. 11-1484

Before trial, IBEW moved to exclude from evidence

the MEOC’s file on Phillips’s complaint. The district

court denied the motion, and four documents from the

file were used at trial: Phillips’s original complaint;

Blue’s statement; the MEOC’s finding of probable cause;

and the MEOC’s notice of hearing. Blue used these documents, along with other evidence, to demonstrate that

Harrelson had a motive to retaliate against Blue and

to prove the causal link between her protected activities

and her adverse employment actions. The jury credited

her evidence and, on August 5, 2010, it returned a judgment in favor of Blue.

The district court formally entered judgment against

IBEW on August 9, 2010. It originally set a deadline of

August 25 for all post-trial motions, but, without any

objection by Blue, the court extended this deadline in

response to a motion by IBEW. On September 10, IBEW

filed two motions, seeking either judgment as a matter

of law under Federal Rule of Civil Procedure 50(b), or a

new trial under Federal Rule of Civil Procedure 59(a).

The district court denied both motions on February 3,

2011, and on March 1, IBEW filed its Notice of Appeal.

II

Before turning to the merits of IBEW’s appeal, we

must clarify the scope of our jurisdiction. We generally

have jurisdiction to hear a case only where a notice

of appeal was filed within 30 days of the entry of judgment. 28 U.S.C. § 2107(a); FED. R. APP. P. 4(a)(1)(A); Bowles

v. Russell, 551 U.S. 205, 214 (2007). The timely filing of
No. 11-1484 5

certain post-trial motions, however, tolls the start of this

30-day period until the resolution of those motions.

See FED. R. APP. P. 4(a)(4)(A). In this case, the district

court entered judgment on August 9, 2010, but IBEW did

not file its Notice of Appeal until March 1, 2011. This is

obviously outside the 30-day period. The question is

whether IBEW’s filing of its post-trial motions (said to

be under Rules 50(b) and 59(a)) operated to extend

that time, given the fact that it filed its motions after

the 28-day period provided in the rules for this purpose

had elapsed. FED. R. CIV. P. 50(b), 59(b). This is a matter

of jurisdictional importance. Our authority to hear

IBEW’s appeal from the underlying judgment turns

on whether IBEW’s motions tolled the time to appeal

under Federal Rule of Appellate Procedure 4(a)(4)(A).

We hold that they did not, and therefore our jurisdiction on appeal is limited to a review of the district

court’s denial of IBEW’s post-judgment motions.

A

The answer to whether IBEW’s motions had the necessary tolling effect lies directly in the text of Federal Rule

of Appellate Procedure 4(a)(4)(A). That rule states that

only “timely” motions have tolling effect. FED. R. APP.

P. 4(a)(4)(A). In order to be “timely,” IBEW’s motions

had to be filed within the 28-day period provided in

Federal Rules of Civil Procedure 50 and 59. The fact

that the district court purported to extend the time

past that 28-day period is of no moment. Civil Procedure

Rule 6(b)(2) prohibits a court from doing exactly this.
6 No. 11-1484

Because these motions were untimely, they did not toll

the period within which IBEW was entitled to file its

appeal from the judgment. See Browder v. Ill. Dep’t of

Corrections, 434 U.S. 257, 264-65 (1978). In an attempt to

avoid the apparent harshness of this result, IBEW suggests that we should follow the approach of the Sixth

Circuit, which has said that “where a party forfeits an

objection to the untimeliness of a Rule 59(e) motion,

that forfeiture makes the motion ‘timely’ for the purpose of [Appellate] Rule 4(a)(4)(A)(iv).” Nat’l Ecological

Foundation v. Alexander, 496 F.3d 466, 476 (6th Cir.

2007). Because Blue failed to object to IBEW’s late Rules 50

and 59 filings, IBEW argues that its motions should be

considered “timely” on appeal. The Third Circuit sees

things differently: It has concluded that untimely

motions do not toll the period for filing a notice of

appeal “even if the party opposing the motion did not

object to the motion’s untimeliness and the district court

considered the motion on the merits.” Lizardo v. United

States, 619 F.3d 273, 278 (3d Cir. 2010). In our view, the

Third Circuit has the better of the argument.

The Sixth Circuit’s rule strikes us as uncomfortably

close to the “unique circumstances” doctrine that the

Supreme Court disapproved in Bowles, see 551 U.S. at

214, which is one good reason to reject it. Lizardo, which

was handed down after Bowles, not surprisingly conforms to the Supreme Court’s understanding of the

nature of congressionally prescribed time limits for appeals. Section 2107(a) of Title 28 of the United States

Code provides that a notice of appeal in civil cases must

be filed within 30 days after the entry of judgment. As
No. 11-1484 7

the Supreme Court explained in Bowles, because only

Congress can determine the jurisdiction of the lower

federal courts, there is a “longstanding” tradition of

treating such a statutorily mandated time limit for

taking an appeal as jurisdictional. 551 U.S. at 210-11. The

30-day rule for civil appeals, (which has been incorporated into Federal Rule of Appellate Procedure

4(a)(1)(A)) thus limits the authority of the courts of appeals. Importantly, the statute addresses the subject of

extensions of time, and it does not mention the kind of

order entered here. Instead, it outlines a specific method

by which a party may seek additional time to appeal by

“showing . . . excusable neglect or good cause.” 28 U.S.C.

§ 2107(c). This rule, too, is jurisdictional. See Bowles, 551

U.S. at 213 (“Because Congress specifically limited the

amount of time by which a district court can extend the

notice-of-appeal period in § 2107(c), that limitation is

more than a simple ‘claim-processing rule.’ ”). If we were

to allow IBEW’s untimely Rules 50 and 59 motions to

toll the time to appeal, we would be creating a new opportunity for parties to extend the time to appeal. Such

a rule would undermine the bounds on appellate jurisdiction established by Congress and contravene a “century’s worth of precedent and practice” regarding the

limitations on an appeal from one court to another. Id.

at 209-10 & n.2.

This result is consistent with our usual treatment of

untimely Rule 59 motions. We have long construed motions like IBEW’s as motions for relief under Federal

Rule of Civil Procedure 60. See, e.g., Trepanier v. City of

Blue Island, 364 F. App’x 260, 263 (7th Cir. 2010); Talano
8 No. 11-1484

v. Northwestern Med. Faculty Foundation, Inc., 273 F.3d

757, 762 (7th Cir. 2001); United States v. Deutsch, 981

F.2d 299, 300-01 (7th Cir. 1992); see also Nat’l Ecological

Foundation, 496 F.3d at 481 (Sutton, J., concurring in the

judgment) (suggesting the Sixth Circuit decide Nat’l

Ecological Foundation by construing a late Rule 59 motion

under Rule 60); Rowe v. Ashdown, 173 F.3d 846, 846 (2d

Cir. 1999) (construing untimely Rule 50(b) motion as a

Rule 60 motion). Even though the district court granted

IBEW’s motion to extend time to a date beyond the

28-day time limit and Blue made no objection to

that extension, it is possible that Blue thought that IBEW

was willing to forgo the advantages of using Rules 50 and

59 in exchange for the extra time available for a motion

that, in substance, comes under Rule 60. (Note that Rule

4 makes it clear that a Rule 60 motion tolls the time

for appeal only if it is filed no later than 28 days after

judgment is entered. FED. R. APP. P. 4(a)(4)(A)(vi).) The

way Appellate Rule 4 is structured, any motion that is

not mentioned under subpart (4)(A) as something that

will toll the time for appeal is automatically handled as

a Rule 60 motion filed beyond the 28-day period. This

approach “reduces the confusion often caused when

movants haphazardly title and characterize motions

asking that a judgment be re-opened,” “makes decisions

easier for both judge and litigant,” and, as we explain

below, “makes it easy for the Court of Appeals to be

sure when it has jurisdiction over an appeal.” Helm v.

Resolution Trust Corp., 43 F.3d 1163, 1167 (7th Cir. 1995).

The relation between the deadlines under the Federal Rules of Civil Procedure and the Federal Rules of
No. 11-1484 9

Appellate Procedure is a close one: “Appellate Rule 4

integrates the time to appeal with a timely motion” under

Rules 50 and 59. FED. R. CIV. P. 59, advisory committee’s

note, 2009 amendments. Treating untimely post-trial

motions as Rule 60 motions, together with observing

Rule 4’s requirement that Rule 60 motions be filed

within 28 days to toll the notice of appeal filing period,

“enforce[s] the deadlines provided in the Federal Rules

of Civil Procedure” and “ ‘set[s] a definite point of time

when litigation shall be at an end.’ ” Lizardo, 619 F.3d at

279 (quoting Browder, 434 U.S. at 264). Here, IBEW’s

motions were untimely, and so they did not toll the time

it had to appeal from the underlying judgment. Its

March 1, 2011, Notice of Appeal was, however, filed less

than 30 days after the district court’s February 3, 2011,

ruling on those post-trial motions. We therefore have

jurisdiction to review those orders.

B

This resolves our first jurisdictional problem, but there

is a second one: whether the district court itself had

the authority to rule on IBEW’s post-trial motions.

Büchel-Ruegsegger v. Büchel, 576 F.3d 451, 453 (7th Cir.

2009). So far, we have not had occasion to determine

whether the time limits contained in Rules 50 and 59

are jurisdictional. See Trepanier, 364 F. App’x at 262

(“[W]e need not decide whether Rule 59(e) is a jurisdictional rule or a claims-processing rule because . . . defendants did not waive the protection of the rule.”). In this

case, however, Blue’s failure to object to the untimeliness
10 No. 11-1484

of IBEW’s motions requires us to determine whether

those time limits impose jurisdictional limits on the

authority of the district court, or whether they are

simply claim-processing rules. We conclude that the

28-day limit on filing motions under Rules 50 and 59

are non-jurisdictional procedural rules designed to aid

in the orderly transaction of judicial business.

As described above, time limits that have been passed

by Congress and that clearly evince an intent to be jurisdictional, such as 28 U.S.C. § 2107(a), are jurisdictional.

Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011).

Because “only Congress may determine a lower federal court’s subject-matter jurisdiction,” however, it is

improper for courts to refer to their own rules as “jurisdictional.” Bowles, 551 U.S. at 211 (quoting Kontrick v.

Ryan, 540 U.S. 443, 452 (2004)) (emphasis added). For

example, the Supreme Court has ruled that Federal Rule

of Bankruptcy Procedure 4004, which sets a deadline

for a party to object to the discharge of debt, is not jurisdictional. Kontrick, 540 U.S. at 456.

Like Bankruptcy Rule 4004, the time limits contained

in Federal Rules of Civil Procedure 50(b) and 59(b) are

claim-processing rules. These rules were all promulgated

by the Supreme Court under the Rules Enabling Act, 28

U.S.C. §§ 2071-2077, and therefore “do not create or

withdraw federal jurisdiction.” Kontrick, 540 U.S. at 453;

see also Lizardo, 619 F.3d at 277. To be sure, the district

court in this case violated Federal Rule of Civil Procedure 6 by extending IBEW’s time to file its post-trial

motions beyond 28 days. FED. R. CIV. P. 6(b)(2) (“A court
No. 11-1484 11

must not extend the time to act under Rules 50(b) and

(d) . . . [and] 59(b), (d), and (e).”). But this error has no

jurisdictional consequences, and the district court was

within its discretion to consider the motion. The only

consequence, which as we shall see is an important one,

is that the scope of the court’s authority became constrained by Rule 60.

In summary, the district court had jurisdiction to hear

IBEW’s untimely motions. Those motions, however, did

not toll the time IBEW had to file its Notice of Appeal.

Moreover, the grounds for relief were narrowed to

those set forth in Rule 60. Deutsch, 981 F.2d at 301. We

thus turn to the remaining issues on appeal, as it has

now been limited.

III

Although IBEW styled its motions as requests for

relief under Rule 50 or 59, the window had closed on

that possibility by the time it filed them and so it was

necessarily pursuing relief under Rule 60. Of the various

grounds spelled out in the latter rule, the only one that

might apply to IBEW is Rule 60(b)(6), a catchall provision that permits a court to reopen a judgment “for any . . .

reason justifying relief from the operation of the judgment.” FED. R. CIV. P. 60(b)(6). This “extraordinary remedy” is generally granted only in “exceptional circumstances.” Bakery Machinery & Fabrication Inc. v. Traditional

Baking, Inc., 570 F.3d 845, 849 (7th Cir. 2009). IBEW

offers two arguments for why it meets that demanding

standard: first, it says that the district court erred when

it allowed Blue to present what it regards as cumulative
12 No. 11-1484

and prejudicial evidence; and second, it insists that

there was insufficient evidence to support the jury’s

verdict. The district court denied relief on both

grounds, and we review this decision for abuse of discretion. Id. at 848.

A

On the first ground, IBEW complains particularly about

the district court’s decision to admit parts of Phillips’s

MEOC file into evidence. Even in ordinary cases, where

the party has properly preserved the point, evidentiary

error warrants relief only if the district court abused

its discretion. A party attempting to present this argument under Rule 60 has an even higher burden; it

must somehow demonstrate that there is a significant

probability of a substantial injustice. See Shick v. Ill.

Dep’t of Human Svcs., 307 F.3d 605, 611 (7th Cir. 2002);

see also FED. R. CIV. P. 61. IBEW has not hurdled this

high bar, and we add for the sake of completeness

that even under a less deferential standard we see no

error here. 

The district court was well within its discretion to

allow Blue to present this evidence to the jury. The

MEOC documents that IBEW wanted to exclude are

not prejudicially cumulative simply because IBEW was

willing to concede that Phillips filed an MEOC complaint and that Blue’s responses corroborated Phillips’s

allegations. Within the limits of Federal Rule of

Evidence 403, Blue was entitled to make her case with
No. 11-1484 13

the evidence of her own choosing. Cf. United States v.

Old Chief, 519 U.S. 172, 186-89 (1997).

The MEOC documentation helps to illustrate the

cause-and-effect relation between action on Phillips’s

complaint at the MEOC and the harsh retaliatory

treatment endured by Blue. For example, the MEOC made

an initial probable cause determination on Phillips’s

complaint on August 3, 2006. Four days later, Blue received a letter denying her overtime opportunities. She

was entitled to present the probable cause determination to show, as she argued at trial, that the denial of

overtime was “a reaction to her participation in that

case.” Similarly, a few days after IBEW learned of the

MEOC’s scheduled public hearing in Phillips’s case,

Blue was formally disciplined in several ways. In all, the

documents from Phillips’s MEOC file were relevant to

Blue’s allegation that IBEW’s unfair treatment of her

was a response to her participation in Phillips’s complaint, and the district court did not abuse its discretion

by finding that this evidence was more probative of

this causal relationship than prejudicial to IBEW.

B

Next, IBEW argues that there was insufficient

evidence to sustain the verdict. We do not agree, and

even if we had some qualms, IBEW’s argument is precluded by the scope of review under Rule 60. IBEW

complains that Blue’s only proof was her own testimony, but that is both untrue and irrelevant. Even if

Blue’s own testimony were her only evidence, it would
14 No. 11-1484

be enough to sustain the verdict. See Darchak v. Chi. Bd. of

Educ., 580 F.3d 622, 631 (7th Cir. 2009). Our account of

the facts earlier suffices to demonstrate the case that

the jury heard. Blue herself provided some of that information, and other witnesses corroborated her account.

The jury also heard about the suspicious timing between Blue’s participation in Phillips’s case and the

various adverse actions that Harrelson took. That

timing supports an inference of retaliation. See Silverman

v. Bd. of Educ. of Chi., 637 F.3d 729, 734 (7th Cir. 2011).

Altogether, the evidence is more than sufficient to

support the jury’s view that Blue’s several adverse employment actions were the result of her participation

in an MEOC investigation. By no stretch of the imagination was it so weak that there was a significant probability of a miscarriage of justice here.

IBEW has made other arguments as well, but none

has any merit. The district court was well within its

authority to deny IBEW’s motions, and we therefore

AFFIRM its post-judgment rulings.

4-2-12