Opinion
Case No. 97-4101-SAC.
October 2000.
MEMORANDUM AND ORDER
In this case, the plaintiff, Kathryn Wabnum , alleges that a labor organization and its president discriminated against her on the basis of her race (Native American), national origin, and ancestry in violation of federal law in her elected position as Vice President for Local 6401 of Communications Workers of America (CWA) in violation of 42 U.S.C.A § 2000e-2(c). (Dk. 126, p. 3). This case is before the court on the following dispositive motions: defendant Debra J. Snow's motion to dismiss (Dk. 33); defendant Snow's motion for summary judgment (Dk. 136); defendant CWA's motion to dismiss (Dk. 14); and CWA's motion for summary judgment (Dk. 129).
For convenience, the court will refer to and treat plaintiff's claims as race claims.
SUMMARY JUDGMENT STANDARDS
The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.
Summary judgments "`should seldom be used in employment discrimination cases.'" O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) ( quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997)). Discrimination claims often turn on intent, and courts ordinarily consider summary judgment inappropriate to settle an issue like intent, Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir. 1992), and may be useful in weeding out claims and cases obviously lacking merit, Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Although the union is not the plaintiff's employer here, the same standards developed in the context of employers apply to labor organizations under Title VII.
UNCONTROVERTED FACTS
The court has reviewed the pleadings in all of the pending motions, including the responses filed by the plaintiff, and sets forth below those uncontroverted facts relevant to the issues addressed. Because the defendants have renewed arguments in the summary judgment motions which were initially made in their motions to dismiss, the court will first rule on the motions for summary judgment. Where controverted, facts have been construed in a light most favorable to plaintiff as the non-moving party. Immaterial facts and factual averments not properly supported by the record have been omitted. The court's task in determining the uncontroverted facts has been simplified by the plaintiff's failure to controvert many of the material facts set forth by CWA in its motion for summary judgment.
1. Plaintiff is a Native American Indian. So is Snow. Both are of Cherokee ancestry.
2. CWA is an administrative unit of the Communications Workers of America, AFL-CIO CLC, which unit includes Kansas and four other states.
3. Plaintiff has been a member of Local 6401 of the International Union at all times relevant to this case.
4. The "CWA Constitution as Amended April 1992" was in effect during the time relevant to this case. That Constitution sets out the respective authority of the various administrative segments of the International Union, including CWA, and Local 6401.
5. During all times relevant to this case, Local 6401 was governed by its Bylaws, which were adopted by the membership of Local 6401. Those Bylaws provide the specifics of the decision-making authority for the officers of Local 6401.
6. The officers of Local 6401 are elected by its membership and are responsible for making the decisions concerning the operation of Local 6401.
7. Snow held the position of President of Local 6401 at all times relevant to this case.
8. Plaintiff held the elected position of Vice President — Comptrollers, Clerical Traffic, Marketing, Commercial, Clerical Engineering and SWB Yellow Pages for Local 6401 of the CWA from January 1, 1994 through December 31, 1996.
9. Pursuant to the Bylaws of Local 6401, Snow had the authority to assign plaintiff, in her capacity as Vice President of Local 6401, such duties as Snow felt appropriate. The Bylaws provide that the Vice President "shall work under the direction of the Local President and shall perform such duties as assigned by the Local President and the Local." (Dk. 131, Exh. 4, Depo. Exh. 3, p. 7).
10. On or about April 12, 1994, Snow relieved plaintiff of her responsibilities related to grievances, and stated that she would consider other responsibilities for her. (Dk. 137, Exh. 21, Exec. Bd. Meeting Minutes, p. 2).
11. Plaintiff knew in April of 1994 that Snow had relieved plaintiff of all her responsibilities related to grievances. (Dk. 137, Exh. 24).
12. Over a year later, on August 15, 1995, plaintiff filed a charge against "Communications Workers of America Local 6401," with the Kansas Human Rights Commission (KHRC) and the EEOC. (Dk. 131, Depo. Exh.4, KHRC charge). The body of that charge makes claims against "Communications Workers of America Local 6401 and its representatives." Therein, plaintiff alleges that during her tenure as Vice President of Local 6401 she was not allowed to perform the duties of her position as Vice President, including handling grievances; that she was subjected to an unfriendly, hostile environment by Snow by virtue of her "unwarranted comments, criticisms and threats to restrict her participation in CWA meetings; and that she believed such treatment was based upon her race, national origin and ancestry, and was part of a pattern and practice of unfavorable treatment of minorites. (Dk. 131, Depo. Exh.4, KHRC charge). Plaintiff has filed no other administrative charges related to this case.
13. Plaintiff was represented by counsel when she filed the KHRC/EEOC charge, and her counsel drafted that charge.
14. By letter dated April 2, 1996, the KHRC advised plaintiff of its "no probable cause" determination.
15. Plaintiff thereafter asked to be considered for a position on the CWA Committee on Equity, but was not selected. Plaintiff admits that she has no evidence that CWA treated her request to be placed on the CWA Committee on Equity any differently than it treated any other member's request to be placed on a CWA committee, that she has no evidence that CWA's conduct toward her was based on racial discrimination, and that she has no evidence that CWA treated her any differently than it treated its Caucasian members.
Other facts relevant to the motions are included as necessary in the analysis which follows.
ANALYSIS
I. Snow's Motion for Summary Judgment
Snow offers numerous reasons why the court should grant summary judgment in her favor. The court will discuss only one.
It is well established that "under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate." Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996). See Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993). Although the cited cases deal with "employers" instead of "labor organizations," the court finds no reason for a distinction, and believes the same result is applicable. See Rodriguez v. International Brotherhood of Firemen Oilers, 1997 WL 327086, *3 (D.Kan. 1997) (rejecting argument that Congress intended for agents to have personal liability as labor organizations, but not as employers, because the definitions of employer and labor organization are too similar for Congress to have intended different results.) Accordingly, to the extent plaintiff's claims are made against Snow in her individual capacity, they are dismissed.
Plaintiff has recently alleged that her claims are really against Snow in her official capacity as President of Local 6401, and not in Snow's individual capacity. Sauers held a suit filed against an agent was timely against the agent's principal because the agent may only be sued in his official capacity under Title VII and not in his individual capacity. Thus, a suit against the agent was a suit against the principal. Sauers, 1 F.3d at 1124-25. It is theoretically possible, therefore, for a suit against the local union to name the union's president, in his or her official capacity.
In this case, however, plaintiff has separately sued the local union, in addition to President Snow. Any relief granted under Title VII is against the labor organization, not individual employees whose actions would constitute a violation of the Act. Because it is the union and not Snow that will bear the liability, if any, for the alleged violations of law, Snow's presence in her official capacity as President of Local 6401 is unnecessary to plaintiff's potential relief, and she will be dismissed. See Johnson v. Board of Co. Commr's for Co. of Fremont, 85 F.3d 489, 493 (10th Cir. 1996) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985); Crowne Investments, Inc. v. United Food and Commercial Workers, Local No. 1657, 959 F. Supp. 1473, 1479 (M.D.Ala. 1997) (Dismissing union president from LMRA case in which the local union was also sued, insofar as he was named in an official capacity, because suing the union's president would be "redundant and unnecessary.")
II. CWA's Motion for Summary Judgment
CWA raises numerous grounds upon which it claims this court should grant it summary judgment. First, CWA alleges that it was not named in plaintiff's KHRC charge, and that the plaintiff thus cannot seek judgment against it.
A. Failure to Name CWA as a Party in EEOC Proceedings
Plaintiff's KHRC charge was filed against "Communications Workers of America Local 6401." The court notes that CWA's Constitution (Dk. 131, Depo. Exh. 2, p. 1), states that the organization "shall be known as the Communications Workers of America and shall be identified by the initials CWA." Local 6401's Bylaws state that "this local shall be known as Local 6401, Communications Workers of America." (Dk. 131, Depo. Exh. 3, p. 1). The parties agree that plaintiff's KHRC charge did not name CWA. Nonetheless, plaintiff asserts that the national organization, CWA, has a clear identity of interest with the local union, making it appropriate to force CWA to answer for Local 6401's alleged acts.
Although plaintiff's KHRC charge did not use the proper name of either the local union or the national union and the designation of a respondent could thus be deemed ambiguous, plaintiff concedes that she did not name the international union, CWA. (Dk. 139, unnumbered sixth page.)
Title VII, 42 U.S.C. § 2000e-5(f)(1), provides that the aggrieved party may bring a civil action "against the respondent named in the charge . . .," after exhausting administrative remedies. The filing of a timely charge of discrimination with the EEOC is a jurisdictional prerequisite to the institution of a lawsuit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). However, the Tenth Circuit has held that "omission of a party's name from the EEOC charge does not automatically mandate dismissal of a subsequent action under Title VII." Romero v. Union Pacific Railroad, 615 F.2d 1303, 1311 (10th Cir. 1979).
In Romero, the Tenth Circuit listed four factors pertinent to an evaluation of the failure to name a party before the EEOC:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.615 F.2d at 1311-12, citing Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977). Plaintiff concedes that the first of these factors is present, in that she could have named the international union in her administrative charge.
The real crux of the determination rests on whether CWA's interests are so similar to those of Local 6401 that it would be unnecessary to include CWA in the administrative proceedings. CWA alleges that the local is free to conduct its own internal affairs, that it has its own officers elected by the local members, that CWA does not "operate" Local 6401, and that the two are thus separate and distinct organizations.
In similar situations, courts have traditionally examined the constitution and the bylaws of international unions and their local affiliates to ascertain the degree of control exerted by one over the other. Heck v. C.H. Heist Corp., 635 F. Supp. 648, 654 (S.D.W. Va. 1986) (examining relationship between international and local union to determine agency for purposes of service of process). The constitution of CWA and the bylaws of Local 6401 are included in the record here. The court reviews those controlling documents to weigh those "matters left to the control and discretion of the local against those matters which remain under the control of the national." Bacino v. American Federation of Musicians of United States and Canada, 407 F. Supp. 548, 553 (N.D.Ill. 1976).
Although Bacino determined the existence of an agency relationship, and the court does not do so here, Bacino's balancing test is helpful in determining the identity of interest issue.
CWA's Constitution contains numerous references to the relationship between the international and its local affiliates. Regarding "Governing Authority," it provides that the affairs of CWA shall be governed by its membership in part "by the Locals of the Union conducting their affairs in accordance with this Constitution and Local By-laws and Rules which they may adopt so long as they do not contravene any provision of this Constitution." (Dk. 131, Depo. Exh. 2, p. 3). Regarding assets, it states that "all assets of a Local shall be considered a trust fund of the Union to be held and administered by the Local for the members of the Union belonging to the Local so long as the Local remains a chartered Local of the Union." (Id., p. 11). The authority, duties and obligations of locals include:
to actively implement all Union Programs and carry out the policies established by the District, State or Area meeting at which it is required to be represented;
to abide by the Constitution, the decisions of the Convention, the Executive Board of the Union and the decisions resulting from the referendum procedure;
to adopt Bylaws and Rules not inconsistent with this Constitution and to repeal, amend, or modify such Rules and Bylaws as may be inconsistent therewith, voluntarily, or at the direction of the Executive Board of the Union;
to hold Local elections . . . in accordance with the Bylaws of Rules established by the Local and this Constitution;
to furnish to the Union's Secretary-Treasurer in acceptable form, an annual financial statement; and,
to furnish the Vice President and Secretary-Treasurer of the Union with copies of Bylaws and Rules of the Local and copies of revisions as they may be made.
(Id., p. 10-11). The Constitution additionally requires Locals to act in accordance with certain listed minimum requirements when taking a strike vote, (Id., p. 15), and requires Locals to conform their Bylaws of Rules to certain minimum standards regarding the manner in which an accused person shall be tried. (Id., p. 17).
Local 6401 By-laws contain provisions which dovetail with the requirements for locals as set forth in the CWA Constitution noted above. The stated object of Local 6401 is "to represent and serve the workers within its jurisdiction in accordance with the By-Laws and Rules of the Local and the Constitution and policies of the Union." (Dk. 131, Depo. Exh. 3, p. 1). Its jurisdiction is "the jurisdiction assigned by the Union appearing on the face of the Local Charter." (Id.) The Bylaws are replete with references to and tacit incorporations of specified Articles of the Constitution, which are unnecessary to set forth fully herein. (See id, at p. 1, 2, 4, 6, 7, and unnumbered 11th and 12th pages).
Under these circumstances, the relationship between Local 6401 and CWA are symbiotic, and not autonomous. The court finds the interests of Local 6401 to be so similar to those of CWA that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include CWA in the EEOC proceedings. See Hardison v. Trans World Airlines, 375 F. Supp. 877, 880 (W.D.Mo. 1974), aff'd in part and rev'd in part on other grounds, 527 F.2d 33 (8th Cir. 1975), rev'd, 432 U.S. 63 (1977) (finding the argument that the international could not be sued in federal court because they were not named in the complaint before the E.E.O.C. to be "without merit" because the local union and the international were not autonomous, thus the interests of the international organization were adequately represented before the E.E.O.C. by the local.)
The court finds that CWA's absence from the EEOC proceedings did not result in actual prejudice to its interests, and further finds that CWA affirmatively represented to the plaintiff that her relationship with it, regarding the very issues raised in this lawsuit, was to be through the Local. See Dk 131, Depo. Exh. 10, 5/17/94 letter from Dennis White, Northern Area Director for CWA, to plaintiff, stating that due to nature of relationship between locals and CWA, he did not feel he could intercede in the situation regarding her working relationship with the local executive board (p. 1); that he could not justify the international's intervention into her allegations of discrimination within the Local unless a charge or appeal has been processed through the CWA constitution (p. 2); and that CWA could not intercede on plaintiff's behalf regarding her removal from grievance applications (p. 2). See also Dk. 131, Depo Exhs. 11, 18, and 19, letters from Vic Crawley, Vice President of CWA, instructing plaintiff to exhaust the internal appeals process at the local level before bringing claims of discrimination, and denying plaintiff's appeal regarding removal from grievance applications); Dk. 131, Depo. Exh. 21, letter from Morton Bahr, President of CWA, declining to intervene, and instructing plaintiff to go through the internal appeals procedure of the CWA Constitution.)
Under these circumstances, the factors weigh heavily in favor of finding that CWA is a proper defendant in this suit, despite the fact that it was not named as a party in the administrative proceedings.
B. Failure to Exhaust Internal Remedies
CWA next alleges that this suit is barred by plaintiff's failure to exhaust the internal grievance procedures available to her. It is undisputed that plaintiff began, but did not conclude the internal appeals procedure provided to her by virtue of the CWA Constitution, (Dk. 131, Depo. Exh. 2, p. 24-25). Plaintiff appealed her grievance through each step provided in the Constitution except a final appeal to the national convention. Not until plaintiff was en route to the national convention did she receive notice that the Executive Board had denied her appeal, and that she had the right to appeal that adverse decision to the national convention. See Dk. 141, Depo. Exh. 27 (letter from CWA Secretary-Treasurer to plaintiff).
In Alexander, 415 U.S. 36, the United States Supreme Court held that an employee was not foreclosed from suing in federal court under Title VII after arbitration proceedings resulted in an unfavorable ruling. The Court concluded that no election of remedies principles inhered in Title VII, thus submission of a claim to one forum does not preclude a later submission to another. "It follows, therefore, that plaintiff can choose to proceed under Title VII without resorting to grievance procedures at all." Hardison, 375 F. Supp. at 880. As stated in Gunnell v.Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998):
a Title VII plaintiff is not required to exhaust her employer's internal grievance procedures before filing suit. See Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453-54 (10th Cir. 1997) (no requirement that union employee exhaust grievance procedure which was provided in collective bargaining agreement), cert. granted and opinion vacated on other grounds, 524 U.S. 947, 118 S.Ct. 2364, 141 L.Ed.2d 732 (1998); Johnson v. Greater Southeast Commun. Hosp. Corp., 951 F.2d 1268, 1276 (D.C. Cir. 1991) ("A private party alleging federal civil rights violations need not pursue internal administrative remedies before pressing a claim in federal court.").
Accordingly, plaintiff's present suit is not barred by the fact that she did not exhaust her internal grievance appeals before suing in federal court. It is sufficient if the plaintiff exhausted her administrative remedies instead.
Had plaintiff's claims against the union been brought pursuant to § 301 of the National Labor Relations Act, 29 U.S.C. § 185, plaintiff would have been required to exhaust the grievance and arbitration process established by the collective bargaining agreement. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 (1976); Aguinaga v. United Food Commercial Workers Int'l Union, 993 F.2d 1463, 1471 (10th Cir. 1993), cert. denied, 510 U.S. 1072 (1994).
C. Failure to Exhaust Administrative Remedies
Section 2000e-5(e) of 42 U.S.C. provides that a discrimination charge must be filed within 300 days after the alleged unlawful conduct occurs. This filing is a prerequisite to a civil suit under Title VII. Alexander, 415 U.S. at 47. CWA contends that many of plaintiff's allegations are time-barred because they occurred more than 300 days before plaintiff filed her EEOC and KHRC charges on August 15, 1995.
Plaintiff appears to concede that many of the alleged acts occurred outside the time limit imposed by Title VII. Her sole contention is that the CWA or Local engaged in ongoing violations of Title VII, entitling her to toll the 300-day limit. Under the continuing violation doctrine, "a plaintiff may recover for incidents which occurred outside the statutory time limit if at least one instance of the alleged discriminatory practice occurred within the limitations period and the earlier acts are part of a `continuing pattern of discrimination.'" Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir. 1999) (quoting Martin v. Nannie The Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir. 1993).
"It is not sufficient merely that acts outside the required time limit had a continuing effect within the statutory time allowed for suit." Martin, 3 F.3d at 1415. The Tenth Circuit has not hesitated to affirm dismissals of discrimination claims that are not timely filed with the administrative agency. See e.g., Smith v. Park County School District, 202 F.3d 283, 1999 WL 1136762 at *1, 2 (10th Cir., Dec. 13, 1999) (Table) (affirming district court's dismissal of ADA claim because plaintiff did not file a charge with the EEOC within 300 days of the alleged adverse employment action).
The only specific complaints included in plaintiff's KHRC charge are that she was not allowed to perform the duties of her position as Vice President of Local 6401, "including handling grievances," and that Snow subjected her to an "unfriendly, hostile environment" by her "unwarranted comments, criticisms and threats to restrict [her] participation in CWA meetings." (Dk. 131, Depo. Exh. 4). Plaintiff's grievance duties were taken away by Snow on April 12, 1994, and plaintiff was informed of that fact soon after. Plaintiff's KHRC charge was filed more than 300 days thereafter. Although plaintiff complains of statements made by Snow at undated times, plaintiff has failed to allege any adverse act taken by Snow within the 300 days immediately prior to her filing of her KHRC charge. Accordingly, the court need not examine the similarity of acts timely complained of to those untimely complained of.
Defendant CWA additionally contends that the scope of the plaintiffs' Title VII claim exceeds that of her administrative complaint. "Allowing a complaint to encompass allegations outside the ambit of the predicate charge would circumvent the administrative agency's investigatory and conciliatory role as well as deprive the charged party notice of the charge." Jensen v. Board of County Comm'rs for Sedgwick County, 636 F. Supp. 293, 300 (D.Kan. 1986).
The pretrial order contains the following allegations against CWA, which were not included in plaintiff's administrative complaint: that CWA "refused to resolve the alleged dispute that plaintiff was having with other elected officers of Local 6401, said dispute involving the specific alleged acts of discrimination set out above," and that CWA "refused to consider plaintiff for a place on the CWA District Six Committee on Equity." (Dk. 126, Pretrial Order, p. 5). The record reveals that the opening for the representative to serve on the CWA District Six Committee on Equity did not occur until June 25, 1996, long after plaintiff filed her KHRC charge.
There is a limited exception to the exhaustion rule, which provides that if an unexhausted claim is "reasonably related" to an exhausted claim, district courts may consider it. Judicial consideration of claims "not expressly included in an EEOC charge is appropriate where the conduct alleged would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made." Martin., 3 F.3d at 1416 n. 7 (citations omitted). A review of the record clearly indicates that the new claims against CWA are not like or reasonably related to the claims included in plaintiff's KHRC charge. Administrative investigation of whether plaintiff's race was a motivating factor in Snow's decision to remove certain of plaintiff's duties as Vice President of Local 6401 or whether Snow subjected plaintiff to a racially "unfriendly, hostile environment" would not encompass CWA's alleged refusal to resolve the dispute or CWA's refusal to consider plaintiff for a place on the CWA District Six Committee on Equity. Plaintiff has failed to satisfy the condition precedent as to the charges against CWA. These claims are separate and distinct from plaintiff's discrimination claims, and even under a liberal analysis, are not "reasonably related to the charges alleged."
Plaintiff has not timely filed with the EEOC or KHRC her claims which are made in this case. Neither the continuing violation doctrine nor the limited exception for claims reasonably related to others applies. Plaintiff's claims are thus barred due to her failure to exhaust administrative remedies.
D. Merits of Discrimination Claims
Although the above grounds are sufficient to warrant summary judgment in CWA's favor, the court additionally wishes to address alternative grounds for its holding.
1. Adverse Treatment
Plaintiff claims that the union discriminated against her on the basis of her race, not with regard to any employment opportunities, but solely with regard to opportunities to serve within the union itself. Plaintiff claims that she was not permitted to have a greater role, either within her position as Vice President, or in addition to that position, within the Union. Although somewhat unusual, this claim appears to be actionable pursuant to 42 U.S.C.A § 2000e-2(c)(1) . See Goodman v. Lukens Steel Company, 482 U.S. 656, 687 (1987) (noting that § 703(c)(1) "prohibits direct discrimination by a union against its members.").
A plaintiff relying on McDonnell Douglas bears the initial burden of establishing a prima facie case by a preponderance of the evidence. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 at 252-53. (1981). Plaintiff's claim that her duties as Vice President were wrongfully removed is closest to that of a job reassignment. To establish a prima facie case, plaintiff has the burden to show that:(1) she was within the protected group; (2) she was doing satisfactory work; (3) adverse action was taken against her; and (4) evidence exists from which a fact finder might reasonably conclude the union intended to discriminate in reaching the decision to reassign plaintiff's former duties. See Spraggs v. Sun Oil Company, 215 F.3d 1337, 2000 WL 628186 at *4 (10th Cir. 2000) (Table) (ADEA discriminatory reassignment case).
If the plaintiff establishes her prima facie case, a rebuttable presumption arises that the defendant unlawfully discriminated against her. See Hicks, 509 U.S. at 506-07. The defendant must then articulate a legitimate, nondiscriminatory reason for the adverse employment action suffered by the plaintiff. See McDonnell Douglas, 411 U.S. at 802. If the defendant is able to articulate a valid reason, the plaintiff can avoid summary judgment only if she is able to show that a genuine dispute of material fact exists as to whether the defendant's articulated reason was pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. ___, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
It is undisputed that plaintiff is within a protected group by virtue of her race, Native American. The record further establishes that plaintiff was stripped of her duties involving the processing of grievances while Vice President of Local 6401. "In recognition of the remedial nature of Title VII, the law in this circuit liberally defines adverse employment action. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)." Jeffries v. State of Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). The Tenth Circuit has declined to require that an adverse employment action be "material" in order to be actionable. Jeffries, 147 F.3d at 1232. Instead, the Tenth Circuit takes a case-by-case approach to determining whether a given employment action is "adverse." See, e.g., Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) (showing of adverse employment action where employee required to "go through several hoops" in order to obtain severance benefits); Berry, 74 F.3d at 986-87 (showing of adverse employment action where employer reported plaintiff of suspected crime thereby creating risk of humiliation and damage to reputation); Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) (sufficient adverse employment action where plaintiff was reassigned against her wishes).
Although the Tenth Circuit liberally defines an "adverse employment action," it does not extend to "`a mere inconvenience or an alteration of job responsibilities.'" Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998). See Heno v. Sprint/United Management Company, 208 F.3d 847 (10th Cir. 2000) (affirming summary judgment where plaintiff worked in the same job, for the same pay, with the same benefits, but defendant had moved her desk, monitored her calls, been "chilly" towards her, and suggested that she might do better in a different department). Here, although no precedent in applying these standards to unions has been found, the court finds that adverse action was taken against plaintiff. Although she retained her title of Vice President, substantial duties that normally accompanied that position were removed from her.
Plaintiff has failed to show, however, that she was performing her duties as Vice President satisfactorily, or that the manner in which she handled or processed grievances was the manner in which it had traditionally been done. Further, plaintiff has failed to present evidence from which a fact finder might reasonably conclude that the union intended to discriminate in reaching the decision to reassign her grievance duties to someone else. Plaintiff has no evidence that Snow used race-based terminology, of any race-related events, or other circumstantial evidence that Snow's decision may have been racially motivated.
Snow alleges that because Snow is Native American (Cherokee) herself, she cannot have discriminated against plaintiff on the basis that plaintiff is Native American (Cherokee). However, in the related context of racial discrimination in the workplace, the Supreme Court has rejected any conclusive presumption that an employer will not discriminate against members of his own race. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group." Castaneda v. Partida, 430 U.S. 482, 499 (1977).
Plaintiff asserts that she was treated differently than her white counterparts, and relies upon testimony which establishes that Local 6401's Executive Board approved having Jeff McKeever assist Henry Blake, because Blake had been acting in the roles of chief union steward and Vice-President, and was swamped. (Dk. 139, McKeever Depo. p. 48-49). Plaintiff has not shown the court that Blake was white, that he held a similar position as plaintiff, or that he was swamped with union work about the same time that plaintiff was relieved of her duties. But assuming, arguendo, that such showings had been made, and that Blake and the plaintiff were similarly situated, the mere fact that Blake needed or received additional help at a time when plaintiff had little to do falls far short of demonstrating racial animus.
Plaintiff further alleges that the union had a pattern and practice of discriminating against minorities, and relies on testimony of Craig Johnson, an African American. Plaintiff alleges Johnson "underwent the same type of treatment" as she did. (Dk. 139, unnumbered eighth page). Johnson's testimony establishes that after he indicated his interest in being chief steward at one location, the incumbent remained as chief steward there (Dk. 139, Johnson Depo. p. 28-30); that he believes that one reason he was denied the chief steward position is because he is black, (Id., p. 48); and that he believes that the Local doesn't really do anything for black employees, several of whom are outside the union or have dropped out ( Id., p. 43). Although Johnson testified to another event involving Kevin Patton, Johnson's testimony in that regard is admittedly hearsay, ( id., p. 48-51), is inadmissible, and cannot be considered for purposes of this motion. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995). Johnson's testimony does not relate whatsoever to plaintiff's claims, and falls far short of establishing any pattern or practice of racial discrimination in the union.
The record also includes an affidavit by Kevin Patton, (Dk. 142, Exh. 1), in support of plaintiff's response to Snow's motion for summary judgment. Patton testified that during Snow's tenure as President, when he served as Executive Vice President in 1986, Snow limited his duties and stripped him of responsibility for handling grievances at the termination level, that white union officers did not have their duties limited, and that he believes that Snow's acts toward him and the plaintiff were based upon race. (Id.) In response, Snow has testified that Patton was an Executive Vice President and not as Vice President as was the plaintiff, that Snow recruited him, and that he had different duties and responsibilities than did the plaintiff, including public relations and community service functions. (Dk. 137, Exh. 19, Snow affidavit, p. 2). Given the dissimilarities in positions between the plaintiff and Patton, the remoteness in time between the events involving Patton and plaintiff (nearly eight years), and the purely subjective nature of the testimony, the court finds this evidence insufficient to meet plaintiff's burden.
Even had plaintiff made a prima facie case of discrimination, the record reflects the union's legitimate business decision regarding the reassignment of plaintiff's duties to another. Snow's affidavit (Dk. 137, Exh. 19, p. 2) establishes that plaintiff "refused, in front of the Executive Board, to provide information regarding pending and future grievances." Plaintiff does not dispute Snow's characterization of the events. After Snow relieved plaintiff of her duties of handling grievances, the membership voted to uphold Snow's decision to do so. (Id.) Plaintiff was permitted to challenge Snow's decision each month, by motion before the membership, and did so on one occasion. (Id.) When plaintiff made a motion for the membership to re-instate her handling of grievances, the membership voted against her. (Id.)
Plaintiff's criticisms of Snow's decision do not render it unworthy of belief, and her speculations that Snow's decision was racially motivated are unsupported by any evidence whatsoever. Although plaintiff disagrees with the decision to remove her grievance duties, that challenge to the union's wisdom is beyond the court's purview here. See Furr v. Seagate Technology, Inc., 82 F.3d 980, 986 (10th Cir. 1996).
Plaintiff has not presented any evidence to show that Snow's stated reasons for removing plaintiff's grievance duties were pretextual. "Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1080 (10th Cir. 1999) (further quotation omitted).
Snow's reassignment of plaintiff's grievance duties was well within her power as President of Local 6401, as stated in the Local 6401 Bylaws. Pursuant to those Bylaws, Snow had the authority to assign plaintiff, in her capacity as Vice President of Local 6401, such duties as Snow felt appropriate. The Bylaws do not recite any specific duties of plaintiff's position as Vice President, but instead provide that the Vice President "shall work under the direction of the Local President and shall perform such duties as assigned by the Local President and the Local." (Dk. 131, Exh. 4, Depo. Exh. 3, p. 7). Under these circumstances, no pretext has been shown. See Aramburu v. Boeing, 112 F.3d 1398, 1408 n. 7 (10th Cir. 1997) (holding that subjective belief of discrimination is not sufficient to preclude summary judgment even where three other employees testified to their belief that the defendant had discriminated against them), citing Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1491 (10th Cir. 1995) (stating an employee's mere conjecture that her employer's explanation for an adverse employment action is a pretext for intentional discrimination is insufficient to preclude summary judgment), cert. denied, 516 U.S. 1160, (1996); Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988) (same). Summary judgment is therefore warranted on plaintiff's claims of adverse treatment by Snow.
The Bylaws provide for two Vice Presidents, and the Vice President other than plaintiff, i.e., the Vice President of Plant, Operating Traffic, Sabetha, Seneca, Emporia, ATT, SWB Telecom, and TeCom, was to perform the duties of the President in her absence. (Dk. 131, Depo. Exh. 3, p. 3, 7).
Plaintiff additionally claims that because of her race, CWA refused to resolve her dispute with Snow and others on the Executive Board, and refused to consider her for a place on the CWA District Six Committee on Equity. (Dk. 126, p. 5).
Plaintiff has admitted, however, in response to statements of uncontroverted facts asserted in the parties' briefs, that she "has no evidence that CWA treated her request to be place don the CWA Committee of Equity any differently than it treated any other member's request to be placed on a CWA Committee," that she "has no evidence that CWA treated her any differently than it treated its Caucasian members," and that she "has no evidence that CWA's conduct toward her was based on racial discrimination." (Dk. 139, unnumbered pages 1 — 3). See D.Kan. Rule 56.1 (stating that "all material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party."). In an abundance of caution, the court has nonetheless reviewed the record, and finds no support for plaintiff's allegations of discrimination by CWA. See Dk. 131, Depo. Exhs. 5, 9, 10, 11, 18, 19, 21, and affidavits of Turn and White). Summary judgment is thus warranted on these claims as well.
E. Hostile Work Environment
Under Title VII of the Civil Rights Act of 1964, it is an unlawful employment practice for a labor organization to discriminate against any individual because of his race, color, religion, sex, or national origin. 42 U.S.C.A § 2000e-2(c)(1). In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), the United States Supreme Court held that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." See Bolden v. PRC Inc., 43 F.3d 545, 550 (10th Cir. 1994). For a hostile work environment claim to be actionable, the harassment "must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Id. at 67 (quotation omitted).
Although most hostile work environment claims address sexual harassment, "cases have always reflected a belief that the employer-liability standards are equivalent for race and sex-based discrimination." Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270 (10th Cir. 1998).
Later, in Harris v. Forklift Systems, Inc., the Court established a two-part test which a plaintiff must satisfy to demonstrate that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create a hostile environment: (1) the harassing conduct must be "severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive;" and (2) the plaintiff must "subjectively perceive the environment to be abusive." 510 U.S. 17, 21 (1993). In analyzing such a claim, courts must look at all relevant circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
Therefore, to survive a summary judgment motion on this issue, plaintiff is required to submit sufficient admissible evidence upon which a reasonable jury could find that Snow had created both an objectively and subjectively racially hostile environment. See Davis v. United States Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998).
Although "the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is quintessentially a question of fact," O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quotations omitted), summary judgment is warranted here. Plaintiff has presented no evidence from which any reasonable jury could find that Snow created either an objectively or subjectively racially hostile environment in the union.
F. Section 1981 Claim
The pretrial order, liberally read, does not appear to contain a claim under 42 U.S.C. § 1981, but this claim is addressed by the defendants in their brief. In an abundance of caution, the court finds that if plaintiff has made a claim under Section 1981, summary judgment is warranted on that claim.
Section 1981(a) provides, in part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . ." This statute centers on the protection of contractual rights, and any claim brought pursuant to it must be supported by an underlying right of the employee to "make and enforce contracts." See Perry v. Woodward, 199 F.3d 1126, 1132 (10th Cir. 1999).
Unions are subject to § 1981. A union's deliberate failure to press grievances involving race discrimination is itself discrimination in the enforcement of contract rights that is actionable under § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164 at 177(1989) (reaffirming that § 1981's prohibition upon discrimination in the enforcement of contractual obligations extends to discrimination by unions); Goodman, 482 U.S. 656 (holding union liable under § 1981 for following a deliberate policy of never including claims of racial discrimination in its grievances while pursuing thousands of other grievances).
Liability under § 1981 requires a showing of discriminatory motive. Goodman, 482 U.S. at 665 n. 10 (1987); Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994) ("Only intentional discrimination may violate section 1981."). A plaintiff can show intentional discrimination either by direct evidence of discrimination or by indirect evidence, employing the burden-shifting framework first articulated McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Although McDonnell Douglas involved a Title VII claim, its analytical framework applies equally to claims brought pursuant to § 1981. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997); Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991).
As noted above in the court's analysis of plaintiff's Title VII claims, plaintiff has not produced any evidence to show that the union dealt with her in a discriminatory manner, and has produced no evidence, whether direct or circumstantial, of discriminatory animus on the part of the union. Because plaintiff cannot meet her burden of production, the union is entitled to summary judgment on any § 1981 claim. Although additional reasons are alleged in support of CWA's motion for summary judgment, the court finds it unnecessary to address them, as well as the parties' motions to dismiss.
IT IS THEREFORE ORDERED THAT defendant Debra J. Snow's motion to dismiss (Dk. 33) is denied as moot, and that defendant Snow's motion for summary judgment (Dk. 136) is granted.
IT IS FURTHER ORDERED THAT defendant CWA's motion to dismiss (Dk. 14) is denied as moot, and that defendant CWA's motion for summary judgment (Dk. 129) is granted.