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Bolin v. General Motors, LLC

United States District Court, E.D. Michigan, Southern Division

August 25, 2017

JOHN BOLIN, GARY DOMKE, and MICHAEL PROCASKEY, Plaintiffs,
v.
GENERAL MOTORS, LLC, a foreign limited liability company, UAW-GM CENTER FOR HUMAN RESOURCES, a domestic nonprofit Corporation, and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRIUCULTURAL IMPLEMENT WORKERS OF AMERICA UAW, a domestic nonprofit corporation, Defendants.

          Elizabeth A. Stafford, Magistrate Judge

          OPINION AND ORDER GRANTING MOTION TO DISMISS [16]

          LAURIE J. MICHELSON, U.S. DISTRICT JUDGE

         Plaintiffs John Bolin, Gary Domke, and Michael Procaskey are employees of Defendant General Motors ("GM") and members of Defendant International Union, United Automobile, Aerospace and Agricultural Workers of America ("UAW"). Plaintiffs all began their GM careers at plants, but in the 1990s, were "Special Assigned" to desirable positions at Defendant UAW-GM Center for Human Resources. Over ten years later, Plaintiffs were reassigned back to their home plants or new ones. They say that this decision was made due to their age. Therefore, they filed this lawsuit pursuant to federal and state age discrimination law. UAW has filed a motion to dismiss on both procedural and substantive grounds. The Court will grant the motion to dismiss.

         I. ALLEGATIONS OF THE AMENDED COMPLAINT

         This case centers on Plaintiffs' job assignment to the UAW-GM Center for Human Resources ("CHR"). CHR is a joint program between GM and UAW. It "[p]rovides development, delivery, coordination, and administration of strategies and joint programs designed to educate and train both active and dislocated workers of General Motors ... to enable employers to compete in a global marketplace." (R. 27, PID 269.) CHR has 80 to 100 employees who are paid through CHR joint funds. (Id. at PID 271.)

         CHR employees report to the "Executive Committee, " which consists of the GM Vice President of Labor Relations and the UAW Vice President of the UAW GM Department. (Id.) The "property, business, and affairs" of CHR are managed by the CHR's Board of Trustees, which consists of ten people: five GM-salaried employees appointed by the GM Vice President of Labor Relations, four UAW representatives appointed by the UAW Vice President of the UAW GM Department, and one UAW representative appointed by the International President of the UAW. (Id.)

         The joint program that established the CHR also provides that GM employees can be "Special Assigned" as Joint Program Representatives to the CHR. (Id. at PID 272.) Such "Special Assigned" employees would "conduct[] the day-to-day duties necessary to provide the various development, delivery, coordination, and administration of strategies and joint programs[.]" (Id. at PID 273.) A GM employee Special Assigned to CHR would still receive GM wages and benefits, but would receive assignments from CHR. (Id. at PID 273.)

         Plaintiffs began their GM careers at various plants, but eventually were Special Assigned to CHR. John Bolin began working at GM's Warren Tech Center in 1976, and was assigned to CHR in 1999. (Id. at PID 268.) Gary Domke began working at GM's Grand Blanc Tooling Center in 1977, and was assigned to CHR in 1992. (Id.) Michael Procaskey began working at GM's Grand Blanc Tooling Center in 1979, and was assigned to CHR in 1992. (Id.) At the time of the events giving rise to the complaint, Plaintiffs were 60, 66, and 67, respectively. (Id.)

         In September 2014, Cindy Estrada became a member of the CHR Executive Committee through her position as the Vice President of the UAW GM Department. (Id. at PID 272.) Shortly after Estrada started her position on the Executive Committee, she asked for a "bio" from each CHR employee, which was to include their start dates at GM and the CHR. (Id. at PID 275.) Meanwhile, Plaintiffs heard rumors of cutbacks at CHR, but were assured that their Special Assigned status was safe. (Id.)

         However, in February 2015, administrative assistants to Estrada began meeting with Plaintiffs and other individuals over age 40 to inform them that their Special Assignment was ending effective March 1, 2015, and at that time, they would return to their home plants. (Id. at PID 275.) Estrada made this decision. (Id. at PID 276.) The administrative assistants advised Plaintiffs to retire at this time in order to avoid going back to the plants. (Id. at PID 276.) (Some of the Plaintiffs could not return to their home plants anyway because they had been closed. (Id. at PID 276.)) The administrative assistants told Plaintiffs that the decision was merely to cut down on employees and that it had nothing to do with performance. (Id. at PID 276.)

         But Bolin and another Special Assigned, Tony Ochab (age 64) heard differently when they met with Administrative Assistant Kris Owen on February 19, 2015. Owen said that Estrada had stated, "we're not going to retrain short-timers in new work" regarding the decision-making process to end Plaintiffs' special assignment to CHR. (Id. at PID 277.)

         The next week, Plaintiffs were advised to stop reporting to CHR and were placed on leave with pay until March 1, 2015. (Id. at PID 277.) At the end of that time, they were supposed to either retire or report to their old plants (or new plants, if the old plants had closed). (Id.) If they chose to retire, they would receive leave until April 1, 2015, and retirement benefits thereafter. (Id.) At some point thereafter, Ochab and Bolin contacted the "Attorney General's office" to file a complaint against the UAW for age discrimination. (R. 27, PID 277.)

         Each Plaintiff chose to return to a plant position, but they found that their pay had been reduced by as much as 50 percent, and working conditions and hours were different. (Id.) Plaintiffs also needed retraining in their plant positions. (Id. at PID 278.) Since April 1, 2015, Plaintiffs' and two other CHR positions were filled by individuals under age forty, with less training and experience than Plaintiffs. (Id. at PID 278.) And the individuals who filled these positions did not have any special training. (Id. at PID 279.)

         Plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") on December 4, 2015. (Id. at PID 279.) They filed a complaint in this Court on October 17, 2016. (R. 1.) After several Defendants filed motions to dismiss, Plaintiffs filed their amended complaint on January 25, 2017. (R. 27.) The amended complaint asserts two counts: Violation of the Age Discrimination in Employment Act (Count I) and Age Discrimination in Violation of the Elliott-Larsen Civil Rights Act (Count II). Defendant UAW filed its motion to dismiss based on the original complaint on December 21, 2016, and elected to rest on that motion along with supplemental briefing after the amended complaint was filed. (R. 16.) Briefing on the motion is complete and the Court heard argument on August 18, 2017.

         II. LEGAL STANDARD

         When a defendant moves to dismiss pursuant to Rule 12(b)(6), the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), governs. Under that standard, a court first culls legal conclusions from the complaint, leaving only factual allegations to be accepted as true. Iqbal, 556 U.S. at 679. The inquiry then becomes whether the remaining assertions of fact "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Although this plausibility threshold is more than a "sheer possibility that a defendant. . . acted unlawfully, " it is not a '"probability requirement.'" Id. (quoting Twombly, 550 U.S. at 556). Whether a plaintiff has presented enough factual matter to '"nudg[e]'" his claim '"across the line from conceivable to plausible'" is "a context-specific task" requiring this Court to "draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 683 (quoting Twombly, 550 U.S. at 570).

         III. ANALYSIS

         UAW asserts three procedural arguments and one substantive argument for dismissal of Plaintiffs' two claims. UAW says Plaintiffs failed to exhaust internal union remedies as to both claims-the Court will not address this affirmative defense at this juncture in the case. UAW says Plaintiffs failed to name UAW in their EEOC charges and there is no identity-of-interest between the Defendants, and therefore their ADEA claims should be dismissed for failure to exhaust-the Court agrees only in part. UAW says that Plaintiffs' Elliott-Larsen Civil Rights Act claims are preempted by the Labor Management Relations Act-the Court disagrees. Finally, UAW says that Plaintiffs have not adequately pled that UAW is a joint employer under ELCRA-the Court agrees but will dismiss the claim without prejudice.

         A. UAW Constitution Exhaustion (Counts I and II)

         UAW argues that Plaintiffs were required to exhaust the internal appeals procedure outlined in the UAW Constitution before filing suit in federal court. (R. 16, PID 93.)

         A union employee who has a grievance against his union has two sets of internal remedies: "contractual remedies arising from a collective bargaining agreement and internal union constitutional remedies." Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012). In this case, like in Chapman,

the contractual remedy is the grievance procedure established in the contract between the UAW and GM, a procedure created to settle disputes between an employee and GM. The internal union remedy is the appeal procedure established in the UAW Constitution, a procedure created to settle disputes between the UAW and the employees it represents in the workplace.

Id. Each remedy has "its own distinct exhaustion doctrine." Id. When, as here, an internal union appeals procedure exhaustion is at issue, "courts have discretion to decide whether to require exhaustion . . . ." Clayton, 451 U.S. at 689.

         The Court will not delve further into the issue. Failure to exhaust union remedies is an affirmative defense. Chapman, 670 F.3d at 684. To be sure, "the prevailing rule is that a complaint showing on its face that relief is barred by an affirmative defense is properly subject to a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted." Ranch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). But this is not such a case. In considering a motion to dismiss, the Court is limited in the documents it can consider: "When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)); Moore's Federal Practice Civil § 12.34 ("The courts may consider the following [on a motion to dismiss]: Documents attached to complaint, Undisputed documents alleged or referenced in complaint, [and] Public records."); see also Pfeil v. State St. Bank & Trust Co., 671 F.3d 585, 599 (6th Cir. 2012) ("Courts generally cannot grant motions to dismiss on the basis of an affirmative defense unless the plaintiff has anticipated the defense and explicitly addressed it in the pleadings.").

         In this case, neither the amended complaint nor the documents the Court can properly consider on a motion to dismiss include the UAW Constitution. On its face, the amended complaint says nothing about the exhaustion of internal union remedies. Nor does the amended complaint refer to the UAW Constitution. So the Court does not find consideration of the document or the exhaustion argument appropriate on a motion to dismiss. See O'Rourke v. Crosley, 847 F.Supp. 1208, 1218 (D.N.J. 1994) (declining to address union remedies exhaustion at the motion-to-dismiss stage of a Labor Management Reporting and Disclosure Act because of outstanding "factual" determinations).

         B. EEOC Exhaustion (Count I)

         UAW argues that Plaintiffs did not properly exhaust their federal age discrimination claim because the UAW is not named in Plaintiffs' EEOC charges. The Court agrees.

         "The rule in this circuit is that a party must be named in the EEOC charge before that party may be sued under Title VII unless there is a clear identity of interest between [the unnamed party] and a party named in the EEOC charge. . . ." Knafel v. Pepsi-Cola Bottlers, Inc., 899 F.2d 1473, 1480-81 (6th Cir. 1990) (internal quotation marks removed, emphasis in original, citing cases). The naming requirement serves two purposes:

First, the charge serves to notify the defendant of the discrimination claim alleged against him. By receiving notice of the claim, a defendant is able to preserve evidence that could be useful in his defense. Second, by naming the charged party and bringing him before the EEOC, that person is able to participate in conciliation efforts directed at securing voluntary compliance with the Act. Conciliation is a primary goal of Title VII ...

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