Opinion
Case No. 1:03-cv-0815-DFH-TAB.
January 20, 2005
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Michael White served as an international union representative for the United Automobile, Aerospace Agricultural Implement Workers of America-United Auto Workers union ("UAW") while he worked at the Ford/Visteon automobile plant in Indianapolis. White claims that the international UAW union ("International Union") and its local union ("Local 1111") removed him from the international union representative post because of his race and age, and that his removal violated 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). White also asserts a state law claim against James Lewis, president and chairperson of Local 1111, for tortiously interfering with an employment relationship between White and the International Union.
Defendants have moved for summary judgment on all claims. The court grants defendants' motion for summary judgment on White's discrimination claims under federal law because, even assuming he was an employee of the defendants, he has no evidence that would allow a reasonable jury to find that he was removed from his position because of his race or age. The undisputed evidence shows that White was removed from his post because the defendants reasonably believed he had misappropriated funds by submitting a deceptive travel expense report. The court also orders White to show cause why the court should not grant summary judgment on the state law claim for tortious interference on a basis not argued by defendants — whether Lewis can be held liable for alleged interference with any alleged employment relationship with the International Union.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only genuine disputes over material facts can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
On a motion for summary judgment, the moving parties must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the parties believe demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the moving parties have met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes.
When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). However, the existence of some metaphysical doubt does not create a genuine issue of fact. A party must present more than mere speculation or conjecture to defeat a summary judgment motion. The issue is whether a reasonable jury might rule in favor of the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, 477 U.S. at 252; Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001); Sybron Transition Corp. v. Security Insurance Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997).
Undisputed Facts
The following facts are either undisputed or reflect the evidence in the light most favorable to plaintiff White as the party opposing summary judgment. Adverse facts established by the moving parties beyond reasonable dispute are necessarily included in the narrative.
Plaintiff Michael White is a retired employee of the Ford/Visteon plant located in Indianapolis. Visteon is a spinoff of the Ford Motor Company. White is African American and was born on May 22, 1941. While employed at Ford/Visteon, White was a member of the bargaining unit represented by the International UAW and its Local 1111.
Gerald Bantom was the vice president of the International Union and director of the UAW's National Ford Department beginning in June 2002. Bantom Dec. ¶¶ 1, 3. Bantom replaced Ron Gettelfinger, who was elected president of the International Union. Bantom Dec. ¶ 10; Lewis Dep. at 58. Bantom's job duties included appointing and removing bargaining unit members as international union representatives. Bantom Dec. ¶¶ 5, 9-11.
The National Ford Department is an arm of the International Union that covers employees of Ford. Lewis Dep. at 49-50.
James Lewis became president and chairperson of Local 1111 in June 2002. Lewis Dec. ¶ 3. Lewis replaced Marty Combs. Lewis Dec. ¶ 1. Lewis's job duties included administering elected officials, local union representatives, and international union representatives, and administering the grievance process within the union. Lewis Dec. ¶ 5. Lewis met weekly with international union representatives and regularly gave them assignments. Lewis Dep. at 128. Lewis had reporting duties to the International Union and spoke with international servicing staff three or four times per day. Lewis Dep. at 46-47.
In 1990, the International Union appointed White as an international union representative (also called a special purpose representative) under the terms of the national collective bargaining agreement between the Ford Motor Company and the UAW. International union representatives support and advance the policies of the International Union and the local union. Bantom Dec. ¶¶ 10-11, Ex. 3. White first served as an Ergonomics Representative and then as a Job Security Representative until December 4, 2000, when Gettelfinger transferred White to the position of Employment Resource Coordinator (ERC). White Dep. at 10-12, 15-16, 19, 20-23; Bantom Dec. ¶¶ 13-14, Exs. 4-5. The ERC serves at the will of the director of the UAW's National Ford Department. Bantom Dec. ¶ 9, Ex. 1; Lewis Dec. ¶ 12.
As president and chairperson of Local 1111, Lewis could request the International Union to appoint or remove an international union representative. Lewis Dec. ¶ 13. The National Ford Department has never refused to appoint or remove someone whom Lewis had recommended for appointment or removal. Lewis Dep. at 12, 64-65. When Lewis assumed his office in June 2002, there were twelve international union representatives serving Local 1111. Lewis Dec. ¶ 15. Three, including plaintiff White, were African American. The youngest was born in 1957. Three were ERCs; White was the only African American ERC. Lewis Dec. ¶ 15. As of August 10, 2004, Local 1111 had ten international union representatives. Lewis Dec. ¶ 14. Since June 2002, Lewis had requested that the International Union remove three international union representatives: plaintiff White; Freda Richards, a Caucasian born in 1940; and Richard Johns, a Caucasian born in 1948. Lewis Dec. ¶ 16.
There is, however, one discrepancy. Although Lewis claims that he requested that the International Union remove Richard Johns as international union representative, Lewis Dec. ¶ 16, Johns does not appear on the list of representatives removed by Bantom. Bantom Dec. ¶ 12.
Since June 2002, Bantom has removed six international union representatives: plaintiff White; Freda Richards, a Caucasian born in 1940; Sheryl Schmidt, a Caucasian born in 1952; Richard Tremblay, a Caucasian born in 1955; Colin Combs, a Caucasian born in 1954; and Chuck Irwin, a 57 year old Caucasian. Bantom Dec. ¶ 12.
As an ERC, White was required to attend various training sessions, seminars, and courses. Bantom Dec. ¶ 16. Some of those events were held in Las Vegas, Nevada in March of each year. Id. White attended one such conference held in March 2002. White Dep. at 41-44, 92. As a person attending the conference, White was eligible to be reimbursed for his travel and meal expenses. Bantom Dec. ¶ 18. The funding to attend the conference came partly from the wages of UAW members. Bantom Dec. ¶ 17; White Dep. at 41.
During the week of February 25, 2002, White requested a travel advance from Ford/Visteon to drive to the March 2002 conference in Las Vegas. Bantom Dec. ¶ 22; Lewis Dec. ¶ 24, Ex. 4; White Dep. at 45-46. White received a $328.50 travel allowance on March 8, 2002. Bantom Dec. ¶ 22; Lewis Dec. ¶ 24, Ex. 4; White Dep. at 41, 45. At some time after he requested the allowance, White decided to fly instead of drive. White Dep. at 50-52. White obtained a free ticket from his daughter who works for an airline in Los Angeles. White Dep. at 53-55. White flew on the free ticket to Los Angeles, and then drove a rental car to the conference in Las Vegas. White Dep. at 55-56, 171-72. After the conference ended on March 15, White drove back to Los Angeles and flew back to Indianapolis with another free ticket. White Dep. at 55-56.
Upon his return from the conference, White filled out a travel expense report (TER). White Dep. at 60-61; Lewis Dec. ¶ 24, Ex. 4. White's TER stated that he had spent $328.50 for ground transportation. White Dep. at 63-64; Lewis Dec. ¶ 24, Ex. 4. The remarks section on the second page of White's signed TER contains the typed text: "I planned to drive but change [sic] my mind and purchased a plane ticket with driving allouance [sic]." White Dep. at 65-66; Lewis Dec. Ex. 4. After receiving White's TER, Erica Williams in Human Resources asked him for a receipt for his plane ticket. White Dep. at 68-69, 71-73, 99; Lewis Dec. Ex. 4; Bantom Dec. ¶ 22, Ex. 10. White told Human Resources that he did not have a receipt because he obtained a free ticket from his daughter. White Dep. at 68, 72-73; Lewis Dec. Ex. 4; Bantom Dec. ¶ 22.
On May 10, 2002, Ford/Visteon disciplined White by suspending him for one week without pay. White Dep. at 75-76; Lewis Dec. Ex. 4; Bantom Dec. ¶ 22. White also was required to pay back the $328.50 driving allowance. White Dep. at 77. White signed a grievance dated May 10, 2002 stating that he had received an unjust penalty for the charge of misappropriation of funds. White Dep. at 83; Lewis Dec. ¶ 22, Ex. 3.
In July 2002, a few weeks after taking office as president of Local 1111, Lewis was reviewing files on pending grievances and found White's grievance claiming an unjust penalty. Lewis reviewed documents pertaining to the grievance and the charge of misappropriation of funds. Lewis Dec. ¶¶ 21-26, Exs. 3, 4; Lewis Dep. at 78-79. On July 22, 2002, Lewis sent a letter to Terry Thurman, director of UAW Region 3, requesting that White be removed from his position as international union representative. Lewis Dec. ¶ 26, Ex. 5; Bantom Dec. Ex. 7. Thurman forwarded the request to Bantom. Lewis Dec. ¶ 26; Bantom Dec. ¶ 20.
When Bantom received Lewis's request to remove White, Bantom asked Frank Savalle, a member of his staff, to investigate the matter. Bantom Dec. ¶ 21. Savalle reported on the events leading up to White's discipline. Bantom Dec. ¶ 22.
On August 5, 2002, Bantom removed White from his international union representative position. Bantom Dec. Ex. 8. Bantom wrote to White on August 12, 2002 to inform White of his removal. Bantom Dec. ¶ 24, Ex. 8. White appealed his removal, but on October 30, 2002, the International Executive Board denied his appeal. White Dep. at 138; Bantom Dec. ¶¶ 26-31, Exs. 10-12.
On or around February 3, 2003, White filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Lewis Dec. ¶ 33, Ex. 7. In the EEOC charge, White named as respondents Local 1111 and Lewis, but not the International Union. Lewis Dec. ¶ 37, Ex. 7. On or around February 3, 2003, Lewis received a notice of the charge from the EEOC, which stated that respondents did not need to take any action at that time. Lewis Dec. ¶¶ 32, 34, Ex. 6. The EEOC dismissed White's charge on February 28, 2003 after conducting an interview with White about the circumstances of his removal from the international union representative position. Lewis Dec. ¶ 35, Ex. 8; Def. Supp. Ex. 3. Local 1111 did not speak with anyone from the EEOC about White's charge nor did Local 1111 submit any statement to the EEOC in response to the charge. Lewis Dec. ¶ 36.
White returned to his former job assignment within the bargaining unit at the Ford/Visteon plant and continued to work until his retirement in April 2004. On May 30, 2003, White filed his lawsuit against Local 1111. He added the International Union and Lewis as defendants in his amended complaint filed on September 18, 2003. Additional facts are noted below as needed, keeping in mind the standard for a motion for summary judgment.
Discussion
I. Federal ClaimsA. International Union as Defendant
A party suing for discrimination in the district court under Title VII or the ADEA must first file a charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(d); Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991) (Title VII); Overgard v. Cambridge Book Co., 858 F.2d 371, 374 (7th Cir. 1988) (ADEA). White has done that. However, in his EEOC charge, White named as respondents only James Lewis and Local 1111, and not the International Union. Lewis Dec. Ex. 7. Defendants contend that White's claims against the International Union are barred because he failed to name it as a respondent in the EEOC charge. That is the general rule, but there are exceptions.
The filing requirement is no longer treated as "jurisdictional." It is a defense that operates like a statute of limitations in that it is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Gibson v. West, 201 F.3d 990, 993-94 (7th Cir. 2000) (overruling prior circuit decision treating requirement as jurisdictional).
If an employee files a charge against one entity, the Seventh Circuit has held that the employee may also sue an unnamed party if that unnamed party had adequate notice of the charge and an opportunity to participate in the EEOC conciliation proceedings, if any. Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir. 1981) (reversing dismissal); see also Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126-27 (7th Cir. 1989) (recognizing Eggleston exception to the filing requirement but affirming dismissal of corporate parent that had not been named in EEOC charge against subsidiary).
On the current record, the court cannot find as a matter of law that White's case falls outside the scope of these exceptions. White has raised a genuine issue of material fact with regard to whether the International Union received sufficient notice of the EEOC charge. When White filed the charge against Local 1111 and Lewis on February 3, 2003, Lewis was president and chairperson of Local 1111. He received the notice of the charge from the EEOC. The text of the charge stated that White was an "International Union Representative" for the UAW. Lewis Dec. Ex. 7. If defendants' contention that the International Union made the decisions to approve and remove international union representatives is true, a jury could find that Lewis realized, or should have realized, that the International Union was implicated in White's discrimination charge. Furthermore, Lewis had reporting relationships to the International Union, and talked with international servicing staff three or four times per day. From these facts, a jury could find at least that the International Union should have known of the EEOC charge. See Eggleston, 657 F.2d at 906-07 (finding that the district court erred by dismissing the claim against Joint Apprenticeship Committee because its relationship with the union meant that it knew or should have known of the EEOC charge and had sufficient opportunity to participate in any conciliation efforts).
This conclusion is not affected by whether Local 1111 is a distinct legal entity for the purposes of personal jurisdiction, whose actions cannot be imputed to the International Union "without evidence that the international instigated, supported, ratified, or encouraged the activities alleged." See Harris v. Ford Motor Co., 1987 U.S. Dist. Lexis 14746, *11, 1987 WL 54371, *4 (S.D. Ind. May 1, 1987) (granting local union's motion to dismiss for lack of personal jurisdiction, and rejecting theory that international union's contacts with forum were sufficient to support jurisdiction over local union). Pursuant to Eggleston, the issue here is notice rather than vicarious liability or personal jurisdiction.
The evidence also does not establish as a matter of law that White should have realized that the International Union, rather than Lewis and Local 1111, was responsible for his removal as international union representative. "Congress could not have intended that a person filing EEOC charges should accurately ascertain, at the risk of later facing dismissal, at the time the charges were made, every separate entity which may have violated Title VII." Cassano v. DeSoto, 860 F. Supp. 537, 540 (N.D. Ill. 1994), quoting Eggleston, 657 F.2d at 906; accord, Eggleston, 657 F.2d at 908 (finding that the close relationship between the Joint Apprenticeship Committee and the local union could have led plaintiff to reasonably assume that the interests of both were represented by the local).
Defendants also argue that the International Union did not have an opportunity to conciliate White's EEOC charge of discrimination. This argument is unconvincing. The EEOC dismissed White's charge because, based on its investigation, it was unable to conclude that a violation of Title VII and the ADEA had occurred. Lewis Dec. Ex. 8; Def. Supp. Ex. 3. When the EEOC dismisses a charge for lack of reasonable cause, it makes no conciliation efforts. 42 U.S.C. § 2000e-5(b). Conciliation is not an inalienable right of a defendant. Eggleston, 657 F.2d at 907. The EEOC gave no opportunity even to Local 1111 or Lewis, the parties actually named in the charge, to conciliate the charge of discrimination. Even if White had named the International Union in the EEOC charge, the EEOC would not have given the International Union an opportunity to conciliate the charge. The lack of a formal opportunity to conciliate the charge therefore does not bar White's naming the International Union as a defendant in this lawsuit. The International Union is not entitled to summary judgment on the Title VII and ADEA claims based on failure to exhaust administrative remedies.
B. Merits of Discrimination Claims
To make a case for race or age discrimination, White may rely on the direct method or the indirect method of proof. White has offered no direct evidence of race or age discrimination by the union leaders involved in his case. White relies on the indirect method using the ubiquitous McDonnell Douglas burden shifting method. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The formal structure of this inquiry should not obscure the ultimate question: whether a reasonable trier of fact could conclude that age or race was a motivating factor in the decision to remove White from his position as international union representative. See Olson v. Northern FS, Inc., 387 F.3d 632, 635 (7th Cir. 2004).
Although not decisive as a matter of law, it is undisputed, for example, that Gerald Bantom, the International Union official who made the final decision to remove White, is himself a 64 year old African American who has been active in the civil rights movement throughout his career. See Bantom Dec. ¶ 4.
To avoid summary judgment on his claims for race or age discrimination under the indirect method of proof, White must come forward with evidence supporting a prima facie case. That requires evidence tending to show the following elements: (1) White is a member of a protected class; (2) he was performing his job satisfactorily and according to his employer's legitimate expectations; (3) despite meeting those expectations, he suffered a materially adverse employment action; and (4) his employer treated similarly-situated individuals outside of the protected class more favorably. Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th Cir. 2004); Gusewelle v. City of Wood River, 374 F.3d 569, 574 (7th Cir. 2004); Rhodes v. Illinois Dep't of Transportation, 359 F.3d 498, 504 (7th Cir. 2004). If White comes forward with evidence supporting all the elements of a prima facie case, the burden of production shifts to the defendants to articulate a legitimate, non-discriminatory reason for their employment action. If the defendants meet their burden of production, the burden shifts back to White to present evidence tending to show that the reason offered by defendants is merely a pretext for discrimination. If White produces evidence of pretext, a jury could infer unlawful discrimination.
White's complaint also includes a race discrimination claim under 42 U.S.C. § 1981. The applicable legal standards on liability are the same under Title VII and § 1981. Herron v. DaimlerChrysler Corp., 388 F.3d at 299. The court's analysis and conclusions apply equally to White's § 1981 claim and his Title VII and ADEA claims.
White was 61 years old when he was removed as international union representative, and is African American. He is thus a member of a protected class for both race and age discrimination purposes. For purposes of summary judgment, at least, there is no dispute that his removal from his post as international union representative constitutes an adverse employment action.
As a matter of law, however, White's prima facie case fails at the third element. White has failed to present evidence that could permit a jury to find that he was meeting the legitimate expectations of the international union representative position. The undisputed evidence shows that White requested a check advance from Human Resources to pay for his drive to the conference in Las Vegas, that he received $328.50 to cover his driving expenses, that he flew to Las Vegas on a free ticket, and that in his travel expense report he stated that he used the travel allowance to purchase a plane ticket to Las Vegas. White Dep. at 62-66; Lewis Dec. Ex. 4 (travel expense report); Def. Supp. Ex. 3 (EEOC investigation memo). White did not reveal what he had done until Ford/Visteon's human resources department asked him for a receipt for the plane ticket. An employer has a legitimate expectation that an employee will not misappropriate travel allowances. Although White maintains that he never conceded that he misappropriated funds, he does not dispute the above events, which defendants could reasonably interpret as misappropriation.
White also has failed to come forward with evidence sufficient to allow a finding in his favor on the fourth element of the prima facie case: that defendants treated similarly-situated individuals outside of the protected class more favorably. White offers one comparator, Scott Ellis. Ellis was a local union representative, 37 years of age, and Caucasian. White contends that Ellis told him that he claimed more than $1,200 on an expense report that was deemed improper. White Dep. at 145-48. White further claims that the union asked Ellis to repay the funds and did not discipline him further.
When an employer disciplines African Americans more harshly than whites, or older employees more harshly than younger ones, such differences can support an inference of discrimination if the employees who received milder discipline are situated similarly to the plaintiff but are outside the protected class. This inference may be permitted even where the undisputed evidence shows that the plaintiff-employee engaged in misconduct. E.g., Appelbaum v. Milwaukee Metropolitan Sewerage District, 340 F.3d 573, 580 (7th Cir. 2003). To be considered similarly situated to White, an individual must be directly comparable to White "in all material respects." Grayson v. O'Neill, 308 F.3d 808, 819 (7th Cir. 2002). For example, the compared individual ordinarily must have dealt with the same supervisor, must have been subject to the same standards, and must have engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish his conduct or the employer's treatment of him. Appelbaum, 340 F.3d at 580; Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000).
How similar is similar? These sorts of issues often present matters of degree that cannot be resolved on summary judgment. See, e.g., Appelbaum, 340 F.3d at 581 (affirming jury verdict based on comparison of plaintiff who was fired for breach of the department's confidentiality policy, while comparator was merely suspended for an insubordinate refusal to cooperate with the enforcement of that same policy); Curry v. Menard, Inc., 270 F.3d 473, 479 (7th Cir. 2001) (vacating summary judgment and finding sufficient evidence of pretext where employer claimed it was following disciplinary policy and plaintiff produced evidence that disciplinary policy was not enforced against similarly situated non-black employees).
Defendants argue that Ellis cannot be compared validly to White because (1) there is no admissible evidence that he misappropriated money; (2) Ellis was a local union representative and not an international union representative like White; and (3) White and Ellis were appointed and removed by different decision makers. Def. Br. 32 at 21-22; Def. Br. 39 at 5-7. The first of these arguments is decisive. White's evidence about Ellis as a comparator is derived solely from White's past discussions with Ellis. White Dep. at 143-50. Apart from the debate about differences between the positions and the identity of the decision makers, the lack of admissible evidence is fatal to White's claim that Ellis is similarly situated. Hearsay is inadmissible in summary judgment proceedings to the same extent that it would be inadmissible at trial, Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997), and White's testimony about what Ellis told him about his conduct and his treatment by the union is hearsay.
White has noted in his brief that he has repeatedly attempted to contact Ellis to obtain an affidavit regarding Ellis's alleged misappropriation of funds, but that he has been unable to find a current telephone number or address for Ellis. Pl. Br. at 3 n. 3. The Seventh Circuit has often said that summary judgment is, to put it bluntly, the "put up or shut up" moment in a lawsuit, when a party must show what evidence he has that would convince a trier of fact to accept his version of events. E.g., Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003). At the summary judgment stage, a plaintiff must present evidence — as opposed to mere allegations or promises of evidence to be produced in the future — that would allow a reasonable trier of fact to rule in his favor. The court cannot withhold summary judgment based on plaintiff's hope that an essential witness will be found before trial, particularly where plaintiff has tried but failed to find the individual. "[M]otions for summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal." Maldonado Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). White has failed to present admissible evidence to dispute defendants' evidence that no similarly-situated individuals outside the protected class were treated more favorably than White.
The evidence supported by personal knowledge indicates that Ellis was ultimately removed from his union representative position because he did not get along with one of the company representatives. Lewis Dep. at 91, 102.
Even if White had come forward with evidence to support a prima facie case, defendants would still be entitled to summary judgment. Defendants have presented a non-discriminatory reason for White's removal as international union representative, namely, their belief that he misappropriated funds. For White to defeat summary judgment on the issue of pretext, he must present evidence from which a rational trier of fact could infer that defendants' offered nondiscriminatory reason for his removal is not truthful. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may reasonably be drawn."). It does not matter whether the defendants were ultimately wrong or unfair in removing White from his international union representative position, nor whether a trier of fact in defendants' shoes would also have removed him. Rather, White needs to come forward with evidence that the defendants did not honestly believe the reason they offered for removing him. Dvorak v. Mostardi Platt Associates, Inc., 289 F.3d 479, 487 (7th Cir. 2002).
Without direct evidence of dishonesty, White can prevail by presenting sufficient evidence tending to show that the offered reason for his removal has no basis in fact, did not actually motivate defendants' decision, or was insufficient to motivate the decision. Lesch v. Crown Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002). Also, dishonesty could be inferred if an earlier justification is retracted or if the different explanations are contradictory. See Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 678 (7th Cir. 2003) (finding that defendant's explanation for not rehiring plaintiff arising for first time in reply brief may be enough to preclude summary judgment); cf. Johnson v. Nordstrom, Inc., 260 F.3d 727, 733-34 (7th Cir. 2001) (concluding that shift in defendant's reasons for failing to promote plaintiff did not suggest pretext because defendant simply "supplemented" its reasons and there had been "no retraction of any of its reasons for failing to promote" plaintiff, nor were any of its reasons "inconsistent or conflicting"); Logan v. Kautex Textron North America, 259 F.3d 635, 640-41 (7th Cir. 2001) (concluding that plaintiff's argument that employer gave multiple reasons for her discharge failed to show that those reasons were pretexts because the reasons were not inconsistent).
White presents no admissible evidence tending to show that either Lewis or Bantom did not believe that he had misappropriated funds. Based on the evidence of record, this belief was certainly reasonable and is sufficient to explain White's removal. See Lewis Dec. Ex. 7 (Lewis's request for White's removal as union representative). White has not come forward with admissible evidence tending to show that defendants' explanation for his removal had no basis in fact, did not actually motivate the decision, or was insufficient to motivate the decision; or that defendants have retracted or shifted explanations or have presented contradictory explanations.
The parties dispute who actually made the decision to remove White from the position of international union representative. Defendants argue that Gerald Bantom, vice president of the International Union and director of the UAW's National Ford Department, made the decision and was the only person who had the authority to remove White. White contends that he would not have been removed unless Lewis had recommended his removal. Even giving White the benefit of the doubt and assuming that Lewis was the decision maker, or was a joint decision maker with Bantom, White's claims of discrimination still fail.
White offers three points to raise a genuine issue of fact about pretext: that he never conceded that he misappropriated union funds, that after his removal Lewis caused his disciplinary write-up to be removed from the personnel file, and that he had heard a rumor that Lewis wanted all Caucasian union representatives. These points fail to raise a genuine issue of fact as to pretext.
First, whether or not White actually misappropriated union funds is not the issue when it comes to pretext. The relevant issue is whether the decision maker(s) who removed him from his union position honestly believed that he had misappropriated union funds. Defendants' conclusion that White misappropriated union funds may or may not have been a mistake. See Bantom Dec. Ex. 10 (White's Aug. 23, 2002 memo to International Executive Board offering his version of the events). But pretext is not suggested simply because an employer's adverse action was based on a mistake. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003). If defendants honestly believed that White had misappropriated funds — and the evidence indicates that both Lewis and Bantom reasonably believed that White's actions constituted misappropriation of funds or at least dishonesty about his use of the funds — that is a legitimate explanation for his removal, even if they were mistaken. Both Lewis and Bantom had ample reason for that belief.
Second, Lewis's removal of White's disciplinary write-up from the personnel file is not inconsistent with the removal of White from his union position for misappropriation, and could reasonably be interpreted as a favor to White. See Lewis Dep. at 87, 115. It is not evidence of dishonesty.
Third, evidence of a rumor passed along by third parties who remain unidentified and unavailable for discovery or trial cannot meet plaintiff's burden to present evidence tending to show pretext. As noted above, hearsay is inadmissible in summary judgment proceedings to the same extent that it would be inadmissible at trial. Eisenstadt, 113 F.3d at 742.
Thus, White has failed to establish a prima facie case of race or age discrimination. He has failed to present admissible evidence from which a reasonable jury could determine that he met his employer's reasonable expectations with regard to his international union representative position and that a similarly-situated person outside his protected class was treated more favorably. He also has failed to present evidence tending to show that the defendants' explanation for his removal is dishonest. Accordingly, the court grants defendants' motion for summary judgment on the merits of White's federal claims of race and age discrimination.
II. State Claim of Tortious Interference With Contract
A. Preemption Under Section 301
White has also asserted a claim against Lewis as an individual for tortiously interfering with an employment contract between White and the International Union. Defendants contend that White's state law claim is preempted by section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Defendants contend that White's position as international union representative was based on the collective bargaining agreement between Ford/Visteon and the UAW.
The Supreme Court has recognized two types of claims that are completely preempted by § 301. First, § 301 displaces state law claims founded directly on rights created by collective bargaining agreements. Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists Aerospace Workers, 390 U.S. 557, 560 (1968) (suit in state court to enforce a no-strike clause in collective bargaining agreement necessarily arose under federal law). In its core application, § 301 displaces state law breach of contract claims where the contract allegedly breached is a collective bargaining agreement governed by federal law. Second, and more applicable to White's case, § 301 completely preempts claims that do not specifically allege a violation of a collective bargaining agreement — or even necessarily mention the existence of a collective bargaining agreement — if the claims nonetheless are "substantially dependent on analysis of a collective-bargaining agreement." International B'hood of Electrical Workers, AFL-CIO v. Hechler, 481 U.S. 851, 859 n. 3 (1987) (union member's tort suit against union for breach of alleged duty to provide safe work place held preempted because collective bargaining agreement provided basis for alleged duty); see also United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 366 (1990) (resolution of a state law tort claim must be treated as a claim arising under federal labor law "when it is substantially dependent on construction of the terms of a collective-bargaining agreement"); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985) (a state law tort action may be preempted by § 301 if the duty to the employee, of which the alleged tort is a violation, is created by a collective-bargaining agreement).
Under Indiana law, a claim for tortious interference with an employment contract requires a plaintiff to show that (1) a valid and enforceable contract existed; (2) the defendant knew the contract existed; (3) the defendant intentionally induced a breach of the contract; (4) defendant was not justified; and (5) damages resulted. Trail v. Boys and Girls Club of Northwest Indiana, 811 N.E.2d 830, 839 (Ind.App. 2004). If the defendant is an individual officer or director or other agent of the employer, the plaintiff must establish that the individual defendant acted intentionally, without a legitimate business purpose, and outside the scope of his official duties. Id.; see also Bochnowski v. Peoples Fed. Savings Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991) (a plaintiff may maintain a claim for tortious interference with an employment relationship even if he is an at-will employee).
To determine whether Lewis acted intentionally to interfere with White's employment as a union representative and whether Lewis's request for White's removal was justified, a court need not interpret the terms of the collective bargaining agreement. Rather, resolution of these issues requires a court to determine whether Lewis's offered reason for his removal request — misappropriation of funds — was justified and honest. Such determination may well involve factual considerations similar to those in the court's analysis of White's federal claims, but this similarity would not require a court or jury to analyze the bargaining agreement. See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 408 (1988) (holding that a state law claim for retaliatory discharge was not preempted even though it involved the same facts as a federal claim; state law claim could be decided without relying on or construing the collective bargaining agreement); Dougherty v. Parsec, Inc., 872 F.2d 766, 770-71 (6th Cir. 1989) (holding that plaintiff's state law tortious interference claim against railroad for requesting his discharge was not preempted by § 301 because the main remaining issue was whether reasons for plaintiff's discharge were pretextual); Dorado v. Aargus Security Systems, Inc., 2002 U.S. Dist. Lexis 2732, 2002 WL 230776 (N.D. Ill. Feb. 13, 2002) (holding that tortious interference with contract claim was not preempted by § 301). Section 301 does not preempt a state law claim simply because the state law relates in some way to a provision in a collective bargaining agreement. Allis-Chalmers, 471 U.S. at 220; see also Tifft v. Commonwealth Edison Co., 366 F.3d 513, 516 (7th Cir. 2004) ("where a state law cause of action requires a mere reference to a [collective bargaining agreement], section 301 preemption will not necessarily apply"); In re Bentz Metal Products Co. Inc., 253 F.3d 283, 289 (7th Cir. 2001) ("for preemption to exist, resolution of a [state law] claim must require interpretation of a [collective bargaining agreement], not a mere glance at it").
Lewis's authority to request White's removal as international union representative is undisputed.
Although defendants argue that White's appointment as international union representative was a "creature of the Agreement between Ford and the UAW," Def. Br. 32 at 28, defendants have not shown that a court or jury would need to interpret the collective bargaining agreement to resolve any of the elements of Indiana's tortious interference cause of action. White alleged in his amended complaint that Lewis interfered with his employment relationship with the International Union. Amended Complaint, ¶¶ 73-78. White did not allege that Lewis tortiously interfered with his employment relationship with Ford/Visteon. Although the defendants contend in their reply brief that they had no employment relationship with White, that issue was raised for the first time in the reply brief. The rest of defendants' motion for summary judgment assumes there was an employment relationship with the International Union, Local 1111, or both.
If the collective bargaining agreement contained or governed a contract of employment between White and the union, the court might need to interpret the agreement to determine if Lewis breached that contract. See International Ass'n of Machinists Aerospace Workers v. Tennessee Valley Auth., 108 F.3d 658, 667 (6th Cir. 1997) (finding one element of tortious interference claim — whether contract was breached — required interpretation of collective bargaining agreement); Hazel v. Curtiss-Wright Corp., 1990 U.S. Dist. Lexis 8416, *26, 1990 WL 482125, *9 (S.D. Ind. May 15, 1990) (Tinder, J.) (finding that resolution of Indiana tortious interference claim required court to interpret the terms of the underlying contract — i.e., the collective bargaining agreement — to determine whether breach of contract occurred).
In essence, White's tortious interference claim raises intramural issues within the union structure, without directly implicating the collective bargaining agreement with Ford or Visteon, at least on the present record.
Although the collective bargaining agreement and associated memoranda set forth the obligations of international union representatives and the procedures for their appointment and removal, Bantom Dec. Exs. 1, 3, all international union representatives serve at the will of the director of the National Ford Department. Bantom Dec. ¶ 9, Ex. 1 (Oct. 12, 1992 memo from Ernest Lofton). The collective bargaining agreement need not be interpreted to determine whether the union removed White from his post for "cause." Cf. Chapple v. National Starch Chemical Co., 178 F.3d 501, 508 (7th Cir. 1999) (finding that a court would need to analyze the management rights clause of the bargaining agreement to determine whether plaintiffs were wrongfully discharged).
To determine whether a defendant's intentional interference with a contract was justified (element 4), Indiana courts consider the nature of defendant's conduct, defendant's motive, the interests sought to be advanced by the defendant, the interests of the plaintiff, the proximity of defendant's conduct to the interference, the relations between the parties, and the social interests involved. Winkler v. V.G. Reed Sons, Inc., 638 N.E.2d 1228, 1235 (Ind. 1994). The overriding question is whether the defendant's conduct was fair and reasonable under the circumstances. Id. In White's case, consideration of these factors would not require an analysis of the terms of the collective bargaining agreement. A cursory glance at the bargaining agreement and associated memos — i.e., Bantom Dec. Ex. 1, 3 — will suffice. White's state law claim of tortious interference is not preempted by § 301 of the LMRA.
B. Supplemental Jurisdiction
Because White's federal question claims are being dismissed, the court must consider whether to continue to exercise supplemental jurisdiction over the state law claim against Lewis under 28 U.S.C. § 1367(a). As a general rule, when all federal law claims are dismissed before trial — for example, on summary judgment — the supplemental claims should be left to the state courts. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); Wright v. Associated Insurance Companies, Inc., 29 F.3d 1244, 1252 (7th Cir. 1994); see also 28 U.S.C. § 1367(c)(3). There are recognized exceptions to this rule. The district court may exercise its discretion to retain jurisdiction over the state claim to serve purposes of judicial economy, convenience, fairness, or comity. See Korzen v. Local Union 705, International B'hood of Teamsters, 75 F.3d 285, 289 (7th Cir. 1996) (affirming dismissal of union employee's state law claim against union); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993). The balance of these factors point to retention of the state law claim in situations where the state statute of limitations has run on the pendent claim, where the federal judicial investment in the supplemental claim is substantial, or where it is clear how the supplemental claim should be decided. Wright, 29 F.3d at 1251-52. If the supplemental claim clearly would fail on the merits, the federal court may "put the plaintiff out of his misery then and there" rather than burdening the state courts with a meritless case. Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997).
Defendants have argued that White's tortious interference claim should be dismissed based on the six-month statute of limitations that applies to § 301 claims. Because the court has found that the tortious interference claim does not necessarily arise under federal law, however, the state law claim is subject to a two-year statute of limitations. See King v. Terry, 805 N.E.2d 397, 400 (Ind.App. 2004); CE Corp. v. Ramco Industries, Inc., 717 N.E.2d 642, 644 (Ind.App. 1999); see also Ind. Code § 34-11-2-1 (two-year statute of limitations for actions relating to "the terms, conditions, and privileges of employment" not based on a written contract). In Indiana, a statute of limitations begins to run when the plaintiff knew of or could have discovered an injury. King, 805 N.E.2d at 400.
Bantom notified White of his removal on August 12, 2002. Bantom Dec. ¶ 24, Ex. 8. When White brought the tortious interference claim against Lewis on September 18, 2003, the two-year statute of limitations had not yet run. The state statute of limitations for a state law claim asserted under supplemental jurisdiction, 28 U.S.C. § 1367(a), shall be tolled while the claim is pending in federal court. See 28 U.S.C. § 1367(d); Jinks v. Richland County, 538 U.S. 456 (2003) (holding § 1367(d) a constitutional exercise of congressional power). Therefore, White's state law claim for tortious interference is still within the statute of limitations period.
There appears to be another serious problem with White's tortious interference claim, however. White's theory is that he had an employment relationship with the International Union, and that the president of Local 1111 interfered with that relationship. Indiana courts have repeatedly rejected efforts by fired employees to pursue tortious interference claims against individual officers, directors, and other managers of employers who played a role in their termination. See Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1317-18 (Ind.App. 1993) (affirming summary judgment for directors of parent company on claim that they tortiously interfered with plaintiff's employment with subsidiary company: "Tortious interference with a contractual relationship involves the intervention of a third party, and an officer or director of a corporation will not be held liable for inducing the corporation's breach of contract if the officer's action is within the scope of his official duties."); Martin v. Platt, 386 N.E.2d 1026, 1027 (Ind.App. 1979) (affirming summary judgment for supervisors of plaintiff employees; "officer or director of a corporation will not be held independently personally liable for inducing the corporation's breach of its contract, if the officer's or director's action is within the scope of his official duties on behalf of the corporation"); Kiyose v. Trustees of Indiana University, 333 N.E.2d 886, 891 (Ind.App. 1975) (affirming dismissal of tortious interference claims against university trustees and other agents; "in accordance with what we believe to be the better view, liability does not accrue for the performance of acts lying within the scope of the agent's duties"); accord, Leslie v. St. Vincent New Hope, Inc., 873 F. Supp. 1250, 1255-56 (S.D. Ind. 1995) (dismissing tortious interference claim against individual supervisor under Rule 12(b)(6)). This principle applies as long as the individual defendant is alleged to have been acting within the scope of his official duties. Keith v. Mendus, 661 N.E.2d 26, 36 (Ind.App. 1996) (finding genuine issue of fact as to whether physicians acted within scope of employment with hospital when they complained about actions of plaintiff-physician whose employment was later terminated).
In this case, White has built his case on the close relationship between the International Union and Local 1111, including the International Union's supervision of Lewis, the alleged wrong-doer. There is no suggestion that Lewis was acting outside the scope of his official duties when he recommended that White be removed from the international union representative position. Under these circumstances, the court believes the most prudent step is to order White to show cause no later than February 8, 2005 why the court should not enter summary judgment on this one remaining claim on the basis that Lewis is so closely associated with the International Union that he cannot be held individually liable for interfering with the alleged contract between the International Union and plaintiff White. Defendants may file a response 14 days after plaintiff responds to the order to show cause. Both sides may submit affidavits or other evidence they consider relevant to the issue, and may direct the court's attention to evidence already in the record.
Conclusion
White has failed to establish his prima facie case of race and age discrimination. He also has failed to provide evidence tending to show that defendants' offered reason for removing him from his union position is pretextual. Accordingly, defendants' motion for summary judgment on White's discrimination claim is granted. White is hereby ordered to show cause no later than Tuesday, February 8, 2005 why his state law claim for tortious interference with a contractual employment relationship should not be dismissed on summary judgment for the reasons set forth above. Defendants may file a response no later than 14 days after plaintiff files his response.
So ordered.