Opinion
IP 97-946-C-T/K.
September 30, 2002
ENTRY ON DEFENDANT ALLISON'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant Allison Engine Company filed a Motion for Summary Judgment. Plaintiff opposes the Motion.
I. Factual and Procedural Background
Robert Brooks worked as an hourly employee for General Motors Corporation ("GM") in Indianapolis, Indiana. On November 12, 1983, he was promoted to a salaried supervisory position. Brooks contends that he was promised the unilateral right to return to the hourly work force and be covered by the collective bargaining agreement. (Am. Compl. ¶ 21.) GM sold the division in which Plaintiff worked to Allison Engine Company ("Allison") on December 1, 1993. As part of the transaction, Allison agreed to assume the current collective bargaining agreement with some modifications. Plaintiff held the same salaried position both before and after the sale. Plaintiff contends that he was told everything would remain the same after the sale to Allison. On April 30, 1996, Plaintiff was terminated.
On June 11, 1997, Brooks filed a complaint against GM, Allison, and the UAW and its Local 933 alleging breach of contract, fraud, and constructive fraud. On October 24, Plaintiff filed for leave to amend the complaint and added claims of age and disability discrimination. GM was dismissed from the case on September 24, 2001. On November 26, Allison filed its Motion for Summary Judgment seeking judgment on the fraud, constructive fraud, and age and disability claims against it. Plaintiff opposes this Motion. The court now rules as follows.
Defendant also requested that several of Plaintiff's statements be stricken because they are contradictory and self-serving. Unless specifically mentioned, Defendant's requests are denied as moot based on the resolution of this Motion.
II. Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).III. Fraud, Constructive Fraud and Fraudulent Concealment Claims
Defendant claims that Plaintiff's fraud and constructive fraud claims are preempted by section 301 of the Labor Management Relations Act ("LMRA"), are barred by a six-month statute of limitations, and suffer from a failure of proof. This court need not address the final two contentions because of the resolution of the first. The LMRA has broad preemptive power. Schmidt v. Ameritech Corp., 115 F.3d 501, 503-04 (7th Cir. 1997 ("In keeping with the goal of maintaining a uniform national labor policy, the Supreme Court has given a broad preemptive sweep to § 301 of the LMRA."). Plaintiff does not contend that the LMRA does not apply and, in fact, concedes that "[f]or the purposes of this summary judgment proceedings, Brooks will presume that Section 301 of the . . . LMRA applies to his claims against AEC [Allison]." (Reply at 4.)
Section 301 provides that "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties . . . ." 29 U.S.C. § 185(a). The Supreme Court has interpreted this provision as "completely preempt[ing] state law claims based on violations of contracts between an employer and a labor organization if those claims require interpretation of the collective bargaining agreement." Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 403 (7th Cir. 2001). "Section 301 governs claims based directly on rights created by collective bargaining agreement and claims substantially dependent on an analysis of those agreements." United States v. Palumbo Bros., Inc., 145 F.3d 850, 863 (7th Cir. 1998).
In this case, Plaintiff's fraud and constructive fraud claims appear to be based on an interpretation of the collective bargaining agreement. First, under the jurisdiction section of his Amended Complaint, Plaintiff contends that "[t]he jurisdiction of this Court is invoked pursuant to Section 301(a) of the Labor Management Relations Act . . . in that . . . the relief sought by Plaintiff depends on, effects and involves interpretation of the collective bargaining agreements between GM, AEC [Allison], the UAW and Local 933." (Am. Compl. ¶ 2.) Under the description of the fraud claim, Plaintiff contends that:
[o]n or about December 1, 1993, AEC's [Allison's] Vice President of Human Resources, B.D. Smith, told Plaintiff that, if he signed AEC's [Allison's] employment contract, he would not be waiving or terminating any rights he had under his employment agreement with GM and that everything would remain the same as it had been with GM-Plaintiff would continue with the same job, receive the same compensation and benefits, have the same supervisor and retain all of his rights, including the right to return to the bargaining unit, as he had with GM.
(Am. Compl. ¶ 58.) Plaintiff then claims that this representation was fraudulent. Necessary to interpret the representation is an interpretation of the terms of the collective bargaining agreement to determine whether Plaintiff's new benefits differed from his old benefits and whether Plaintiff could return to the collective bargaining unit. Therefore, the decision on the fraud claim would involve an interpretation of the collective bargaining agreement and that state law claim is preempted by section 301.
Presumably, Plaintiff's constructive fraud claim deals with the same issues. It is clearly governed by the general statement of jurisdiction and, although not entirely clear from the Amended Complaint, appears to be based on the Defendant's failure to inform him of benefits. Thus, the constructive fraud claim is preempted by section 301 as well.
In addition, in his response brief Plaintiff attempts to add a claim which he describes as a fraudulent representation claim based on Allison's failure to disclose that Plaintiff would not be allowed to return to the bargaining unit. The court will refer to this new claim as a fraudulent concealment claim because that is what it really is. Despite Plaintiff's arguments to the contrary, paragraphs 58 through 65 of the Amended Complaint fail to mention a failure to disclose a material fact. The same can be said with respect to paragraphs 57 through 64 of the original Complaint. The fraudulent concealment claim is now dismissed because it was not correctly added. See Auston v. Schubnell, 116 F.3d 251 (7th Cir. 1997). But even if the fraudulent concealment claim were sufficiently asserted in the Plaintiff's pleadings, the claim would nonetheless fail to survive summary judgment. This claim, which is based on Defendant's failure to disclose that Plaintiff would not be allowed to return to the bargaining unit, would be preempted by section 301 for the same reasons the fraud and constructive fraud claims are preempted.
Plaintiff contends that this suit falls under an exception to the requirement that administrative remedies must be exhausted before a suit may be brought in court. Although this may be the case, it misses the point. Plaintiff also contends that issues of fact regarding whether the union breached its duty of fair representation preclude summary judgment in favor of Allison. This, too, misses the point. Plaintiff's state law claims are not barred because of a failure to exhaust administrative remedies or because of a disputed fact over the union's alleged breach of the duty of fair representation. Rather, Plaintiff's state law claims are preempted by federal legislation in the field. Summary judgment is therefore appropriate on Plaintiff's fraud and constructive fraud claims, and, to the extent such a claim was properly asserted in the Amended Complaint, the fraudulent concealment (referred to by Plaintiff as fraudulent representation in not disclosing a material fact) claim as well.
In any event, it also appears that Plaintiff suffers from a failure of proof on the elements of the fraud and constructive fraud claims. On the fraud claim, Plaintiff contends that the material misrepresentation of past or existing fact is the statement that there would be virtually no change in his employment when Allison bought the company. However, this clearly relates to future conduct, not past or existing fact. With respect to the constructive fraud claim, again, there were no representations of past or existing facts and it is not clear what advantage Allison gained.
IV. Age and Disability Discrimination
Defendant also claims that Plaintiff's age and disability discrimination claims must fail because Plaintiff cannot establish that: (1) Defendant's stated reason for laying off Plaintiff were pretextual, (2) Plaintiff suffered from an adverse employment decision because of his disability, and (3) Plaintiff was disabled.
The ADEA prohibits employers from terminating employees on the basis of age. See 29 U.S.C. § 623(a). Title I of the ADA forbids employers from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
A plaintiff in an employment discrimination case may proceed under two methods of proof: the direct method and the indirect burden-shifting method established by McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). Because Plaintiff has presented no direct evidence of discrimination, he must satisfy the indirect, burden-shifting method of proof articulated in McDonnell Douglas. Under the McDonnell Douglas approach, a plaintiff must first establish a prima facie case of discrimination. See, e.g., Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1000 (7th Cir. 2000) (citation omitted). Where a plaintiff alleges discriminatory treatment, he must demonstrate that: (1) he belongs to a protected class; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) his employer treated similarly-situated employees outside of his protected class more favorably. Id. at 1001 (citations omitted). If a plaintiff successfully establishes a prima facie case of discrimination, the burden shifts to the employer to come forward with a legitimate, non-discriminatory reason for the adverse employment action. Id. If the employer offers a legitimate, nondiscriminatory explanation for the termination, the plaintiff must then rebut that explanation by presenting evidence sufficient to enable a trier of fact to find that the employer's proffered explanation is pretextual. Id.
Pretext "means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000). A plaintiff does not reach the pretext stage, however, unless he first establishes a prima facie case of discrimination. See, e.g., Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997). Although the McDonnell Douglas approach is often called a burden-shifting method of proof, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
A. Age Discrimination
Defendant claims that Plaintiff was fired because his "lowest ranking of all of the contact engineers and poor attitude after the sale made him expendable during a legitimate company wide reduction in force." (Def.'s Br. at 20.) In response, Plaintiff contends that: (1) Brooks' position was not eliminated; (2) another employee ranked lower than Brooks was retained; (3) after Brooks' termination, a younger employee was transferred to Brooks' department; (4) thirty-seven of the forty-nine individuals who were terminated between April 1, 1996 and June 1, 1996 were forty years old or older; and (5) an individual working in Brooks' department, Hugh White, actually volunteered to be terminated pursuant to the reduction in workforce, but was not laid off. However, this is insufficient to establish that Defendant's purported reason for laying off the Plaintiff was "a lie." First, although the number of supplier contact engineers stayed the same, there were reductions in other departments, leading to overall reductions and restructuring. (Smith Aff. ¶¶ 3-8.) Brooks claims that another employee, Jim Torzeswki, replaced him. However, a review of the documents submitted to support this claim shows that Brooks and Torzeswki did not have the same number of suppliers or the same supplier list. This does not establish that the lay-off was not legitimate.
Although the Seventh Circuit has cautioned against skipping the prima facie case and merely discussing pretext, Peele v. Country Mut. Ins. Co., 288 F.3d 319, 327 (7th Cir. 2002), the Defendant concedes that Plaintiff has established his prima facie case for purposes of this motion.
Plaintiff also claims that he was notified by a friend that Allison was targeting certain individuals for termination and instructing supervisors to rank those individuals low on their evaluations. This claim is supported solely by Plaintiff's testimony as to these out-of-court statements. This is inadmissible hearsay and, therefore, this statement in Plaintiff's deposition and the corresponding arguments are STRICKEN.
Second, Plaintiff contends that his low ranking on his evaluation is a pretext for the lay off because there was an employee in his department who ranked lower than he did and was not laid off. First, Defendant never contended that it was their policy to only fire the lowest ranking employees. Rather, Defendant claims that Plaintiff's low evaluation was a factor in determining whether to lay him off. Plaintiff was the second lowest ranked employee in his entire department and apparently the lowest ranked at his position. Plaintiff contends that there is a contradiction in Defendant's evidence because the Harris affidavit claims that Plaintiff's "October 1995 appraisal was below that of the other Contact Engineers" and the Answer to Interrogatory Number 11 claims "There was only one individual in the entire department rated lower, comparatively, and that employee was new to the group, and on a learning curve." Nowhere does the affidavit or interrogatory answer state that only contact engineers make up Plaintiff's department. Even if this was this case, the majority of the statements refer to Plaintiff's "low review" and, in only one place, the Brief in Support of the Motion for Summary Judgment, does it specifically state that the Plaintiff had the lowest review of all the contract engineers. Although it would have been helpful for Defendant to clarify this point in its briefing, Plaintiff has not shown that Defendant's reason for firing Plaintiff, having the low performance review, was pretextual.
Third, Plaintiff points to the transfer of a younger man to his department after his termination. Plaintiff cannot show that this man was hired to replace Plaintiff. As already discussed, the Defendant reorganized departments in connection with the lay-offs and work force reductions. The transfer of a man who happened to be younger than the Plaintiff to Plaintiff's department does not establish discrimination based on age.
Fourth, Plaintiff argues that Hugh White, one of his coworkers in his department, actually volunteered to be laid off as part of the reduction in force, but was not laid off. This evidence is insufficient to raise an inference of pretext. Common sense dictates that regardless of whether or not someone else in the department volunteered for the reduction in force, the employer would let the most expendable employee or employees go. Allison has offered evidence that Plaintiff was expendable because of his low ranking amongst contact engineers and poor attitude after the sale. The mere fact that Mr. White volunteered for the reduction in force does nothing to call that explanation into question. For example, there is nothing to suggest that Mr. White actually was ranked lower than Plaintiff. Thus, Allison's refusal to take Mr. White up on his offer that he be discharged as part of the reduction in force fails to raise a reasonable inference that Allison discriminated against Plaintiff on the basis of his age by selecting Plaintiff as the engineer to be laid off.
Because Plaintiff has submitted the Certification of Hugh White with his surreply, Allison's hearsay objection has become moot and the evidence is admissible.
Finally, Plaintiff claims that thirty-nine of forty-seven employees who were terminated were over forty years old. However, Plaintiff does not show how much of the total workforce or how many contract engineers were over forty. Based on the information given to this court, ninety percent of the contract engineers could be over forty and the lay-off rate was therefore lower in that age group than others. Mere statistics without specific correlations are insufficient. Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 559 (7th Cir. 2001) ("[W]hile statistics may be used to demonstrate that the employer's proffered reason for discharge is pretextual, standing alone they are not likely to establish a case of individual disparate treatment."); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 615-17, 619 (7th Cir. 2000). Plaintiff has admitted that he does not know the benefits of the other employees in his department and whether those with similar benefits were laid off or retained. Furthermore, he has never heard any age-related comments and does not know who made the decision on his lay off. Plaintiff has simply not presented sufficient information from which a reasonable jury could find that the Defendant's stated reasons for firing him, his poor performance review and attitude in a lay off time, were pretextual.
B. Disability Discrimination
Defendant also contends that Plaintiff's claim that he was fired due to his disability must fail for three reasons. Because this court finds that Plaintiff is not disabled as that term is used by the ADA, there is no need to address Defendant's other two contentions. To prove his prima facie case of disability discrimination, Plaintiff must show: (1) he is disabled within the meaning of the ADA, (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodations, and (3) he suffered from an adverse employment decision because of his disability. Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001). The ADA defines "disabled" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Plaintiff alleges that he is disabled as defined by the ADA only because Allison regarded him as having a physical impairment that substantially limits a major life activity. To establish that he is regarded as having an impairment that substantially limits a major life activity, Plaintiff must show that he has an impairment that does not substantially limit one or more major life activities, but was treated by Allison as though he did. See Dupre v. Charter Behavioral Health Sys., 242 F.3d 610, 616 (7th Cir. 2001) (concluding record did not support a finding that the employer regarded plaintiff as disabled where evidence established only that employer knew plaintiff had a back impairment and doubted her ability to perform a particular job but there was no evidence that the employer thought she was unable to perform any other job). Plaintiff must also show that "the impairment, if it existed as perceived, would be substantially limiting." Id. (citation omitted).
He does not allege that he has a physical or mental impairment that substantially limits one or more of his major life activities or has a record of such impairment.
Proof that Allison knew of Plaintiff's impairment without more is insufficient to establish that Allison regarded Plaintiff as disabled under the ADA. See Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001). Plaintiff must also prove that Allison believed that his impairment substantially limited one or more of his major life activities. See id. Plaintiff must identify the major life activity or activities that he contends Allison regarded as being substantially limited. See id.
Plaintiff claims that Allison regarded him as substantially limited in the major life activity of working. Where, as here, the major life activity is working "`substantially limits' means the [the plaintiff was] `significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" E.E.O.C. v. Rockwell Int'l Corp., 243 F.3d 1012, 1017 (7th Cir. 2001) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). A "class of jobs" means "the job from which a [plaintiff] was disqualified, as well as all other jobs utilizing similar training, knowledge, and skills within `the geographical area to which the [plaintiff] has reasonable access.'" Rockwell Int'l, 243 F.3d at 1017 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(B)). A "broad range of jobs in various classes," however, "is the job from which a [plaintiff] was disqualified, as well as all other jobs not utilizing similar training, knowledge, and skills within `the geographical area to which the [claimant] has reasonable access.'" Rockwell Int'l, 243 F.3d at 1017 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)(A), (C)).
"`The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.'" Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). As the Supreme Court has made clear, "[t]o be substantially limited in the major life activity of working . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton, 527 U.S. at 492. The Court explained: "If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Id.
Plaintiff suffers from a heart condition. He suffered from heart blockage in 1993 and then returned to work full-time within two weeks. He must monitor his blood pressure daily, but was allowed to do this while employed with Defendant and it did not interfere with his work. In 1995, Plaintiff was told to eat a more healthy diet, at which time Plaintiff requested that he be required to travel less and, therefore, avoid eating at restaurants where his healthy eating options were limited. Plaintiff claims that Allison regarded him as substantially limited in his ability to perform a job that required traveling. (Pl.'s Surreply at 8.)
Even assuming that Allison regarded Plaintiff as substantially restricted in his ability to perform a job requiring traveling, Plaintiff has come forward with insufficient evidence to establish that Allison regarded him as disabled under the ADA. Though he need not offer quantitative vocational evidence of the precise types and number of jobs in the Indianapolis area, see Rockwell International, 243 F.3d at 1017-18, which is the relevant geographic area as Plaintiff was employed in Indianapolis; Plaintiff must offer some evidence "of the number and types of other jobs in" the Indianapolis area from which he would be excluded because of his perceived inability to travel, see id. (explaining that § 1630.2(j)(3) requires some proof of the approximate number and types of jobs in the geographical area from which the plaintiff would be excluded). Plaintiff has offered no such evidence. Instead, it seems that he asks the court to find him disabled based on a perceived inability to perform the particular job he held at Allison before his discharge. That is not enough. See Sutton, 527 U.S. at 491 ("The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.") (quotation omitted); Rockwell Int'l, 243 F.3d at 1018 (refusing to find that defendant Rockwell regarded individuals as disabled based solely on Rockwell's perception that they were unable to perform four specific jobs at Rockwell).
Because Plaintiff has not offered any evidence sufficient to create a triable issue as to whether Allison regarded him as having an impairment which substantially limited him in working, no reasonable jury could find him disabled as the term is used by the ADA. Therefore, his claim of disability discrimination cannot withstand summary judgment. Even if Plaintiff could establish that he was disabled under the ADA, his claim of disability discrimination would fail to survive summary judgment in any event because, as discussed, Allison has offered a legitimate nondiscriminatory reason for his discharge, and Plaintiff cannot create a triable issue as to pretext.
V. The Union Defendants
The Amended Complaint names as Defendants The International Union of the United Automobile, Aerospace and Agricultural implement Workers of America (the "UAW"), and UAW, Local 933 and states that they have been named parties "in order for the Court to grant equitable relief to Plaintiff. . . ." (Am. Compl. ¶ 68.) In Plaintiff's response brief, he states that he is not pursuing a claim for breach of the duty of fair representation or any other cause of action against the UAW or Local 933. (Pl.'s Resp. at 8.) Plaintiff reiterates that he named the UAW and Local 933 "only with regards to its involvement in any remedy ordered by the court." (Id.) Because the court has concluded that Defendant Allison should be granted summary judgment and Defendant GM has been dismissed from this case, it is clear that Plaintiff has no claims against the UAW or Local 933 and that they, too, are entitled to dismissal.
VI. Conclusion
For the foregoing reasons, Allison's Motion for Summary Judgment will be GRANTED, and the claims against the UAW and Local 933 will be DISMISSED.
ALL OF WHICH IS ORDERED this 30th day of September 2002.