In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1484
S USAN B LUE,
Plaintiff-Appellee,
v.
INTERNATIONAL B ROTHERHOOD OF
E LECTRICAL W ORKERS L OCAL U NION 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.
A RGUED S EPTEMBER 20, 2011—D ECIDED A PRIL 2, 2012
Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. In 2009, Susan Blue sued her
former employer, International Brotherhood of Electrical
Workers, Local 159 (IBEW), alleging retaliation for op-
posing the discrimination of an African-American elec-
trician. 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 col-
leagues 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 dis-
ciplined 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 (African-
American). 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 ap-
parent discrimination.
Harrelson retaliated: Blue presented evidence that
she was stripped of her essential job duties, denied over-
time opportunities, and subjected to a hostile work envi-
ronment. 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 retalia-
tion escalated: Blue received additional formal dis-
ciplinary 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 docu-
ments, 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 judg-
ment 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 judg-
ment. 28 U.S.C. § 2107(a); F ED. R. A PP. 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. A PP. 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. C IV. 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 jurisdic-
tion 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 neces-
sary 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. F ED. R. A PP.
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 sug-
gests 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 pur-
pose 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 con-
forms to the Supreme Court’s understanding of the
nature of congressionally prescribed time limits for ap-
peals. 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 incor-
porated into Federal Rule of Appellate Procedure
4(a)(1)(A)) thus limits the authority of the courts of ap-
peals. 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 op-
portunity for parties to extend the time to appeal. Such
a rule would undermine the bounds on appellate juris-
diction established by Congress and contravene a “cen-
tury’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 mo-
tions 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. A PP. 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 Fed-
eral 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. C IV. 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 jurisdic-
tional rule or a claims-processing rule because . . . defen-
dants 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 juris-
dictional, 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 fed-
eral court’s subject-matter jurisdiction,” however, it is
improper for courts to refer to their own rules as “juris-
dictional.” 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 juris-
dictional. 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 Pro-
cedure 6 by extending IBEW’s time to file its post-trial
motions beyond 28 days. F ED. R. C IV. 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 con-
strained 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 provi-
sion that permits a court to reopen a judgment “for any . . .
reason justifying relief from the operation of the judg-
ment.” FED. R. C IV. P. 60(b)(6). This “extraordinary rem-
edy” is generally granted only in “exceptional circum-
stances.” 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 dis-
cretion. 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 argu-
ment 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 F ED. R. C IV. 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 com-
plaint 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 re-
ceived a letter denying her overtime opportunities. She
was entitled to present the probable cause determina-
tion 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 com-
plaint, 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 pre-
cluded by the scope of review under Rule 60. IBEW
complains that Blue’s only proof was her own testi-
mony, 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 infor-
mation, and other witnesses corroborated her account.
The jury also heard about the suspicious timing be-
tween 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 em-
ployment actions were the result of her participation
in an MEOC investigation. By no stretch of the imagina-
tion was it so weak that there was a significant prob-
ability 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
A FFIRM its post-judgment rulings.
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