Opinion
Civil Action NO. 99-3513 SECTION "C" (3).
April 18, 2000.
ORDER AND REASONS
Defendant Lockheed Martin Corporation ("Lockheed") moves the Court for summary judgment and dismissal of Plaintiff Alfred Brandon's claims. The Court entertained oral argument on Lockheed's motion on April 12, 2000. After considering the issues raised on oral argument, the memoranda of the parties, the case record, and the applicable law, the Court GRANTS Lockheed's motion for the reasons explained below.
I. FACTS
Alfred Brandon was a long-time employee of Lockheed's Michoud Assembly Facility in New Orleans, most recently in the position of production processor. On January 13, 1998, Lockheed suspended Brandon for thirty days for watching television during his working hours. Upon that suspension, Lockheed put Brandon on notice that more severe measures would result from any further disciplinary infractions. Then, effective September 21, 1998, Lockheed terminated Brandon after supervisors found him asleep in his work area and eating lunch outside of his assigned lunch period.
Brandon was a member of Local No. 1921 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("Union") and thus subject to the Union's collective bargaining agreement ("CBA") with Lockheed. In fact, as revealed at oral argument, Brandon was a union representative to the CBA negotiations. Under Article I of the CBA, the Union is designated as the exclusive representative of the production and maintenance employees at Michoud. See Def's Mem. Supp. Summ. J., Ex. 1. Articles VIII and IX of the CBA set forth grievance and arbitration procedures for the resolution of disputes. See id.
Following Brandon's dismissal, the Union filed two grievances. The first grievance, No. 98-267, was based on Article XVII(4)(b) of the CBA, which provides that management must present any reprimand in writing to the employee within ten days after management could have reasonably been expected to know of the incident provoking reprimand. See Id. The grievance was based on Brandon's claim that he did not receive the certified mailing notifying him of his dismissal until October 21, 1990 (although Lockheed mailed the notification on September 24, 1998) and thus was not afforded the normal ten days to challenge his dismissal as provided in Article VIII(2) of the CBA. The Union also filed another grievance, No. 98-276, challenging whether Brandon's dismissal was for good cause.
After Lockheed denied the Union's first grievance, the Union brought the matter to arbitration. On January 14, 2000, the arbitrator ruled in favor of Lockheed, concluding that Brandon had actual notice of his dismissal on September 21, 1998 and that actual notice was sufficient to satisfy the CBA's notice requirement. See Id., Ex. 5.
Lockheed also denied the Union's second grievance. However, in a letter dated January 12, 1999, the Union chose not to appeal the denial to an arbitrator but rather to withdraw the grievance. See id., Ex. 7.
On October 21 1999, Brandon filed suit in the Civil District Court for the Parish of Orleans State of Louisiana, claiming that Lockheed summarily dismissed him without the benefit of due process normally provided by the grievance procedures. Brandon further averred that the termination was "pre-textual in nature and was not contemporaneous to the alleged violations." Rec. Doc. 4., Ex. A. Lockheed then removed the case to this Court on November 18, 1999. See Rec. Doc. 1. Lockheed invoked this the jurisdiction of this Court on two bases: (1) federal question jurisdiction, 28 U.S.C. § 1331, under the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), to resolve disputes arising under CBAs; and (2) diversity jurisdiction, 28 U.S.C. § 1331 because the parties are diverse and the amount-in-controversy here exceeds $75,000. See Rec. Doc. 1.
Lockheed now moves the Court for summary judgment on Brandon's claims as far as they arise under the CBA, arguing that any state claims are preempted by the LMRA and that any claim subject to the CBA is now final following binding arbitration. Lockheed further argues that, if Brandon is attempting to assert a hybrid claim against Lockheed and the Union on the Union's refusal to proceed with the second grievance, such a claim should be dismissed by summary judgment because Brandon has presented no evidence of the Union breaching its duty of fair representation and also because any further LMRA claims are now time-barred. Lockheed also asserts that any hybrid claim should be dismissed under Fed.R.Civ.P. 12(b)(6) because Brandon fails to state a claim for breach of the duty of fair representation.
In opposition to Lockheed's motion, Brandon, a black man, claims that his suit is based on race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Brandon argues that previous arbitration of grievances should not preclude him from judicial resolution of race discrimination claims. At oral argument, Brandon further asserted that his case was also based on Lockheed's alleged unfair "retaliation," i.e., firing him, far his union and political activity.
At oral argument, Brandon also alluded to state claims for intentional racial discrimination. La. R.S. 23:332 addresses intentional racial discrimination in employment.
Lockheed responds to Brandon's opposition by arguing that any race discrimination claim alleged by Brandon is time-barred. Furthermore, Lockheed contends that Brandon cannot bring forth any evidence of disparate treatment and thus that any claim of race discrimination fails.
II. ANALYSIS
A. Standard of Review 1. Summary Judgment
This Court can grant a motion for summary judgment only when 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 a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
After the moving party asserts that there is no genuine dispute, the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. See Id. The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 748 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S.Ct. at 2511 (citations omitted).
2. Motion to Dismiss for Failure to State a Claim
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the factual allegations of the complaint as true and resolve all ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). Unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim," the complaint should not be dismissed for failure to state a claim. Id. at 284-285 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not defeat a motion to dismiss. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing Fernandez-Montes, 987 F.2d at 284).
B. Discussion
1. Possible Claims Under the LMRA
At oral argument, Brandon conceded that any claim he may have for deprivation of his rights to due process within the grievance procedure provided by Lockheed is barred by (1) LMRA § 301's preemption of any state claim brought by a union employee that requires interpretation of a CBA; and/or (2) the arbitration panel's binding decision on this matter.
See 29 U.S.C. § 185(a); Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir. 1992); Willis v. Reynolds Metals Co., 840 F.2d 254 (5th Cir. 1988).
A federal court cannot review, but rather should defer to, arbitration decisions made under a CBA's grievance procedures. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596; 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 567-68, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). The federal policy favoring resolution through the procedures specified in a CBA is so strong that any doubts or ambiguities as to the terms of the CBA are to be resolved in favor of arbitration. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965). Accordingly, "an employee [cannot] . . . side-step the grievance machinery provided" in the CBA. See Hines, 424 U.S. at 564, 96 S.Ct. at 1055. Individual employees asserting contract claims thus must utilize the grievance procedures provided in the CBA. See Republic, 379 U.S. at 652-53, 85 S.Ct. at 616-17.
Also at oral argument, Brandon informed the Court that he had no claim against the Union for breach of the duty of fair representation for failing to prosecute his claim that he was dismissed without good cause.
Where an employee lodges a grievance and he can demonstrate that his union unreasonably refused to prosecute the claim under the CBA grievance procedures, the employee may file suit against both his employer for breach of contract and his union for breach of the duty of fair representation. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290-91, 76 L.Ed.2d 476 (1983); Hines, 424 U.S. at 563-64; 96 S.Ct. at 1056. This type of dual action is commonly called a "hybrid" claim. See, e.g., id. at 165, 103 S.Ct. at 2291.
To prevail on a hybrid claim, an employee must demonstrate the union's breach of the duty of fair representation. See United Parcel Service v. Mitchell, 451 U.S. 56, 62, 101 U.S. 1559, 1563-64, 67 L.Ed.2d 732 (1981). A union, however, has considerable discretion in handling the grievances of its members so long as its conduct is not arbitrary, discriminatory, or in bad faith. See Landry v. Cooper/T. Smith Stevedoring Co., 880 F.2d 846, 852 (5th Cir. 1989); Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1125-26 (5th Cir. 1980). Accordingly, the union's duty of fair representation does not require that it bring every grievance to arbitration. See Christopher v. Safeway Stores, Inc., 644 F.2d 467, 472 (5th Cir. Unit A May 1981).
Accordingly, the Court dismisses any claim that the procedures provided by the CBA did not provide Brandon with sufficient due process and any claim against the Union for breach of the duty of fair representation for failing to prosecute Brandon's claim that he was dismissed without good cause.
2. Possible Wrongful Discharge Claim
Brandon informed Lockheed and the Court for the first time at oral argument that he also claims wrongful discharge under Louisiana state law. However, binding arbitration and the general grievance procedure have already considered Martin's discharge and resolved that the discharge was proper. Furthermore, LMRA § 301 would preempt a state claim for wrongful discharge because Brandon's employment was governed by a CBA. Thus, because this Court must defer to binding arbitration and the general grievance procedure and because a state claim for wrongful discharge would be preempted by LMRA § 301, the Court must deny any claim for wrongful discharge.
3. Discrimination Claims
Even though the Court dismisses the claims discussed above, Brandon's choice to pursue his just cause grievance through the procedure provided in the CBA does not necessarily preclude a claim in this Court, under federal and/or state law, that his dismissal was pretext for race discrimination. Normally exclusive arbitration provisions must give way to certain statutory rights, such as the anti-discrimination provisions in Title VII. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49, 94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147 (1974). "Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement" Id. at 49, 94 S.Ct. at 1020. See also McNair v. United States Postal Service, 768 F.2d 730, 736 (5th Cir. 1985) (arbitrator's competence is limited to interpretation of CBA, not decisions of federal statutory law). Therefore, it is clear that federal labor law does not preclude Brandon from bringing a claim for race discrimination in this Court.
Because neither side has informed the Court of the substance of Brandon's just cause claim, the Court assumes, for purposes of this motion, from the undertones of the Complaint and Brandon's opposition memorandum that Brandon's just cause claim is that his dismissal was pretext for race discrimination. Therefore, Brandon brought that claim through the grievance procedure provided by the CBA, although the procedure was cut off by the Union's decision not to bring the claim to arbitration.
Nevertheless, from the evidence before the Court, the Court must dismiss any claim of race discrimination on summary judgment because there are no genuine issues as to any material fact to support the claim.
While Brandon may also he claiming unlawful discrimination in employment under Louisiana state law, La. R.S. 23:332, the Court will focus on analyzing Brandon's discrimination claim under federal law concerning Title VII. "Because of the substantial similarities between state and federal antidiscrimination laws, courts may appropriately consider interpretations of federal statutes when construing Louisiana law." Hicks v. Central Louisiana Electric Co., Inc., 712 So.2d 656, 658 (La.Ct.App. 1st Cir. 1998). Therefore, analysis under the law addressing Title VII also addresses a Louisiana state antidiscrimination claim.
From the facts developed in the parties memoranda and brought forth in oral argument, the Court assumes that Brandon is lodging a disparate treatment, rather than a disparate impact, claim. However, he fails to plead the required facts to establish a prima facie case of disparate treatment. Furthermore, the only evidence before the Court shows that Brandon's claim of disparate treatment centers around the fact that Lockheed suspended him for thirty days for sleeping on the job (eight months before his termination) while Lockheed suspended three other employees, all black men, for only ten days for the same infraction. See Def's Rebuttal Mem., Ex. 1 (Brandon's Deposition), at 123-24. A Title VII plaintiff, however, cannot prove a claim of racially discriminatory disparate treatment with evidence only of disparate treatment in relation to others of the same protected class. See Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (Title VII gender discrimination plaintiff could not make her case of disparate treatment with reference only to treatment different from other women). At oral argument, Brandon did not indicate any further evidence of legally cognizable disparate treatment that could be uncovered with further discovery.
A Title VII plaintiff hears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). A prima facie case of discrimination consists of a plaintiff showing (1) that he was discharged; (2) that he was qualified for the position; (3) that he was a member of the protected class at the time of discharge; and (4) that he was replaced by someone outside the protected class. See Haynes v. Pennzoil Co., No. 98-20985, ___ F.3d ___, 2000 WE 290167, at *3 (5th Cir. Apr. 4, 2000). See also St. Mary's Honor Center v. Hicks; 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993).
The same elements are required to establish a prima facie case for racially discriminatory disparate treatment under the Louisiana antidiscrimination statute, La. R.S. 23:332. See Plummer v. Marriott Corp., 654 So.2d 843, 848 (La.Ct.App. 4th Cir.), writ denied, 660 So.2d 460 (La. 1995).
However, even if Brandon could bring forth other evidence of disparate treatment, his claims of race discrimination would be time-barred. On September 3, 1999, Brandon filed a discrimination charge with the Louisiana Commission on Human Rights, which substitutes for an Equal Employment Opportunity Commission ("EEOC") charge under 42 U.S.C. § 2000e-5(c). See Def's Rebuttal Mem., Ex. 11. The EEOC dismissed the charge on September 3, 1999 because it was not filed within the time limit required under Title VII. See Def's Rebuttal Mem., Ex. 12. Brandon admitted that his EEOC charge was dismissed as untimely both in deposition testimony and at oral argument. A federal court must also deem untimely and thus dismiss a suit based on an untimely EEOC charge. See Barrow v. New Orleans Steamship Assoc., 932 F.2d 473, 476-77 (5th Cir. 1991).
See Def.'s Rebuttal Mem., Ex. 1, at 103, line 8.
Brandon styled his EEOC charge as a claim of discriminatory dismissal. Accordingly, the limitations period began to run on the date of notice of the adverse decision, i.e. the dismissal. See Delaware State College v. Ricks, 449 U.S. 250, 259, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980). Furthermore, because arbitration does not preclude a Title VII claim, as explained above, the pending of a grievance does not toll the statute of limitations. See Delaware State College, 449 U.S. at 261, 101 S.Ct. at 506; International Union of Electrical, Radio and Machine Workers v. Robbins Myers, Inc., 429 U.S. 229, 236, 97 S.Ct. 441, 447, 50 L.Ed.2d 427 (1976). Therefore, because Brandon failed to bring his EEOC charge within the applicable time period and a federal court must deem untimely a case based on an untimely EEOC charge and because the intervening grievance process did not serve to toll the time limit to bring an EEOC charge, Brandon's claims before this Court are time-barred. 4. Retaliation Claim
That date is in dispute here but is no later than October 21, 1998, the date Brandon claims he received notice of his dismissal.
Alternatively, if the claim is based on the earlier suspension, the limitations period would have begun when Lockheed notified him of the suspension.
Under La. R.S. 23:332, a plaintiff has one year to bring a claim for intentional discrimination in employment. See Davis v. Hibernia National Bank, 732 So.2d 61, 63 (La.Ct.App. 4th Cir.), writ denied, 747 So.2d 536 (La. 1999). Therefore, if Brandon's claim did accrue on October 21, 1998, his October 21, 1999 filing of this lawsuit would be timely for purposes of La. R.S. 23:332. But, if Lockheed is correct that Brandon knew of his discharge by September 24, 1998, the one-year prescriptive period would have expired before Brandon's filing of this suit, and thus the suit would be time-barred also under Louisiana law.
However, it is unnecessary for this Court to resolve that issue. Brandon's claim of discrimination under Louisiana law clearly fails because he has failed to establish a prima facie case of disparate treatment and has failed to allege any facts demonstrating disparate treatment. Therefore, even if Brandon's claims under state law were timely, the Court would still dismiss them.
As mentioned above, Brandon first asserted at oral argument that he also has a claim based on Lockheed's alleged unfair "retaliation," i.e., firing him, for his union and political activity. Such a claim by an employee against an employer invokes the rights of employees to organize and collectively bargain as guaranteed by Section 7 of the National Labor Relations Act ("NLRA"). See 29 U.S.C. § 157 ("Right of employees as to organization, collective bargaining, etc."). An employer's interference with those rights constitutes an unfair labor practice under Section 8 of the NLRA. See 29 U.S.C. § 158(a)(1).
"`As a general rule, federal courts do not have jurisdiction over activity which is arguably subject to § 7 or § 8 of the [NLRA], and they must defer to the exclusive competence of the National Labor Relations Board." U.A. 198 Health Welfare, Education Pension Funds v. Rester Refrigeration Service, Inc., 790 F.2d 423, 425 (5th Cir. 1986) (internal quotations and citations omitted), cert. denied, 485 U.S. 904, 108 S.Ct. 1074, 99 L.Ed.2d 233 (1988). See also United Food and Commercial Workers Union v. Pilgrim's Pride Corp., 193 F.3d 328, 331 (5th Cir. 1999); Louisiana Bricklayers Trowel Trades Pension Fund Welfare Fund v. Alfred Miller General Masonry Contracting Co., 157 F.3d 404, 407 (5th Cir. 1998). "The rationale for deference of state and federal courts to the competence of the [National Labor Relations] Board is to avert interference with national labor policies." McDonald v. Oliver, 525 F.2d 1217, 1230 (5th Cir. 1976) (citations omitted).
The rule is "general" rather than strict because if a dispute arises over an employer's action that is arguably an unfair labor practice but is also arguably covered under a CBA, a district court retains concurrent jurisdiction with the Board to resolve the matter. See D.E.W., Inc. v. Local 93, 957 F.2d 196, 202 (5th Cir. 1992) (authority to resolve CBA disputes under LMRA § 301 remains); Pari Mutuel Clerks Union of Louisiana v. Fair Grounds Corp., 703 F.2d 913, 917 (5th Cir.) (same), cert. denied, 464 U.S. 846, 104 S.Ct. 150, 78 L.Ed.2d 140 (1983).
Brandon's claim that Lockheed allegedly retaliated against him for his union activities is clearly an unfair labor practice and not a matter covered by the CBA. Accordingly, the exception allowing federal court jurisdiction over a challenge to an unfair labor practice does not apply to Brandon's case.
As explained above, any alleged retaliation against Brandon for exercising his rights to concerted activity would constitute an unfair labor practice. Because such a claim is within the exclusive jurisdiction of the National Labor Relations Board, this Court is without jurisdiction to decide this claim. Accordingly, the Court must dismiss any claim for retaliation.
III. CONCLUSION
For the reasons explained above, IT IS ORDERED that Defendant Lockheed Martin Corporation's Motion for Summary Judgment and to Dismiss is GRANTED as to all claims brought by Plaintiff Alfred Brandon. Accordingly, IT IS FURTHER ORDERED that this case be DISMISSED WITH PREJUDICE.