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Thomas v. International Union, United Automobile, Aerospace And Agricultural Implement Workers of America

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

June 28, 2018

Keith L. Thomas, et al., Plaintiffs,
International Union, United Automobile, Aerospace And Agricultural Implement Workers Of America, et al., Defendants.

          R. Steven Whalen, Mag. Judge



         This is a case of alleged retaliation and race discrimination against plaintiffs' union. Plaintiffs' employer Severstal Dearborn, LLC (the “company”) terminated plaintiffs for “time theft.” Plaintiffs filed Equal Employment Opportunity Commission (“EEOC”) and the Michigan Department of Civil Rights (“MDCR”) race discrimination claims against Severstal. Plaintiffs' union, defendants International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and UAW Local 600 (“the union”), began the grievance process, and ultimately negotiated a settlement that provided for plaintiffs to be reinstated and receive back pay. The settlement also contained a waiver clause that would have required plaintiffs to withdraw any and all pending claims against Severstal in connection with the plaintiffs' termination, other than claims, complaints, or causes of action not waivable by law. Plaintiffs interpreted this waiver clause as a requirement that they drop their then-pending EEOC and MDCR claims. Plaintiffs declined the settlement offer and they were not reinstated. Plaintiffs bring this suit against the union for retaliation and race discrimination under Title VII (42 U.S.C. §2000e-3(a)) (“Title VII”), Section 1981 (42 U.S.C. §1981) (“Section 1981”), and the Michigan Elliott-Larsen Civil Rights Act (M.C.L. §37.2101) (“ELCRA”).

         Defendants make three arguments in their motion for summary judgment: (1) plaintiffs have demonstrated no evidence of race discrimination or retaliation (2) plaintiffs' case is preempted by section 301 of the Fair Labor Relations Act and should be dismissed because (a) it is time barred, and (b) because plaintiffs failed to exhaust the grievance procedure; and (3) plaintiffs cannot establish liability under the anti-discrimination statues against defendants, because defendants did not breach the duty of fair representation or act with racial animus against them. (Dkt. 31.)

         Because plaintiffs have not come forward with evidence of retaliation or race discrimination, defendants' motion for summary judgment must be granted, and the Court need not analyze defendants' remaining arguments.[1]

         I. Background

         In 2013, plaintiffs worked at the company in the scarfing department. (Dkt. 20 at 6-7.) Employees entered the company's facility by using a “gate swipe” system. (Dkt. 31-22 at 11.) The gate swipe recorded the time employees entered the company grounds, but did not record the time employees left company grounds. (Id.)

         In early 2013, the company became aware that scarfing department and slab yard department employees were re-entering company grounds at various times during their shift without ever clocking out or requesting leave. (Dkts. 31-22 at 11, 20 at 6.) The company conducted an investigation of possible time theft by analyzing several months of gate swipe records for all employees in the scarfing and slab yard departments. (Dkts. 31-22 at 11, 31-9 at 6, 23.)

         The company found that the practice of re-entering company grounds during a shift was widespread, and included nearly all employees in the scarfing and slab yard departments. (Dkts. 31-22 at 12, 20 at 6-7). The company found that all 17 of 17 scarfing employees and 32 of 33 slab yard employees swiped into the facility during their shifts. (Dkts. 20 at 6-7, 31-9 at 7-8.)

         The company's policy regarding time theft is to terminate the employee. (Dkt. 31-9 at 7.) However, the company recognized that if it terminated all employees for the time theft violations, it would result in a mass firing. (Id.) This would leave the company without any trained employees in the scarfing department and only one in the slab yard department, and could result in a shutdown of the operations. (Dkts. 31-9 at 8, 31-22 at 12.)

         The company determined that it had a business interest to limit the discipline of the time theft violators to avoid a shutdown. (Dkts. 31-9 at 8, 31-22 at 12.) The company compared the swipe-ins to clock-outs, and determined that re-entry swipe-ins within one hour (and in some cases within minutes) of the end of the employee's shifts were, in the company's opinion, more egregious than swipe-ins in the middle of a shift. (Dkt. 31-9 at 6). Annette Gibbons, manager of labor relations at the company, stated in her deposition:

[W]e made a recommendation based on different criteria. We looked at the frequency, of course. And we also looked at when those individuals were shown coming back into the plant. So we looked at individuals who were coming in just before they were supposed to clock out at the time clocks for the end of the day where we believed those individuals had been gone for an extended period of time and were coming back only to clock out. And my determination was that those employees were gone for long periods of time as opposed to those employees who it appears left through the lunch hour and were gone to pick up lunch or something and returned. So the penalty was based-was more severe for those who we determined had been gone for a longer period of time. (Dkt. 31-22 at 12.)

         The company terminated all employees whose swipe-ins were within an hour of clocking out at least 30% of the time. Plaintiffs were all in this group of terminated employees. (Dkt. 20 at 7.) Plaintiffs Jeffries, Boyd, and Thomas were terminated on May 14, 2013, June 13, 2013, August 6, 2013, respectively. (Dkts. 31-4 at 2, 31-3 at 2, and 31-5 at 2.)

         Thirteen out of the seventeen scarfing department employees were African American in 2013, including plaintiffs. (Dkt. 36-6 at 2.) In the scarfing department, six out of the seven terminated employees were African American. (Dkt. 20-1.)

         On June 20, 2013, plaintiff Jeffries filed an MDCR/EEOC race discrimination charge against the company arising out of his discharge. He alleged that similarly situated white employees were not discharged. (Dkt. 36-8.) On June 21, 2013, plaintiff Boyd filed virtually identical charges with the MDCR and EEOC. (Dkt. 36-9.) On August 30, 2013, plaintiff Thomas filed charges with the EEOC and MDCR, but unlike Jeffries and Boyd, Thomas also alleged national origin discrimination in his charge. (Dkt. 36-10.)

         The plaintiffs' grievance procedure began at stage two.[2] (Dkt. 31-3, 31-4, 31-5). Plaintiffs Jeffries, Boyd, and Thomas' stage two grievances were filed on May 14, 2013, June 13, 2013, and August 6, 2013, respectively. (Dkts. 31-4 at 2, 31-3 at 2, 31-5 at 2.)

         All three plaintiffs' stage two written statements of the case were identical. They all argued that (1) the penalty for theft of time was unfounded and unjust, (2) the alleged swipe-in violations had been taking place consistently and routinely in the department, including by management, and (3) the plaintiffs were sandbagged by the sudden penalties. (Id.) None of the plaintiffs' stage two grievances mentioned race discrimination. (Id.) However, plaintiff Thomas wrote a letter to his union president, William Wilhelm, before his stage two grievance was filed, and stated that “[t]he company has disproportionally applied discipline to African American employees.” (Dkt. 31-7 at 3).[3] Boyd, Jeffries, and Thomas' grievances were denied on July 3, 2013, July 9, 2013, and August 7, 2013, respectively (Dkts. 31-3, 31-4, 31-5.), with the company finding no violation of the CBA. (Id.)

         Stage three of the grievance process is discretionary in that the CBA provides that the union president “may, if he or she considers the grievance to be well founded, carry it to the Third Stage.” (Dkt. 31-2 at 12.) Notably, the third stage is the last opportunity for the union to add additional claims to a grievance. (Dkt. 31-2 at 12.) Specifically, the third stage requires that the written statement:

shall fix the nature of the grievance and of the issues for all subsequent consideration of the case in the Grievance Procedure (including the Fourth Stage), and if either party shall attempt to deviate materially from the contents of such statement after furnishing it to the other party, the grievance shall be remanded to the Second Stage for reconsideration unless the other party agrees otherwise. (Dkt. 31-2 at 12.)

         If a race discrimination claim is included in a third stage grievance, the union president has the discretion to refer the grievance to the chairperson of the local union's civil rights committee for an investigation and report. (Dkt. 31-2 at 12.)

         Under the CBA, the union representative also has the discretion and authority to settle cases on behalf of the union:

The Regional Director or his or her designated representative shall have the power to settle or withdraw on behalf of the Union any case or cases appealed to his or her level of the procedure, either before or after the Third Stage disposition by the Company is received, that in his or her judgment does not merit appeal to the next step. (Dkt. 31-2 at 13.)

         On July 12, 2013, plaintiff Jeffries wrote a letter to his union president, William Wilhelm, stating that he was “specifically alleging race discrimination in my suspension grievance and my termination grievance.” (Dkt. 36-2 at 14.) On August 11, 2013, he emailed Wilhelm, stating that he wanted to be “assured that the alleged racial discrimination would not only be included in my file but presented to the company from the union as our position in these grievances.” (Dkt. 31-10 at 2.)

         On August 12, 2013, plaintiff Boyd wrote a letter to Wilhelm, stating, “[t]he employer engaged in illegal behavior which resulted in African Americans being discharged disproportionally.” (Dkt. 31-8 at 2.) He further stated that he felt the employer was “stalling and refusing to move forward on our grievance… and is further retaliating against us for exercising constitutional rights.” (Id.)

         Wilhelm testified in his deposition that he had conversations with the company regarding plaintiffs' race discrimination arguments. “Concerns of discrimination were raised during a third stage interview where I was in attendance…” (Dkt. 31-28 at 7.) However, after his discussions with the company, he was not convinced that the company was motivated by race when it discharged plaintiffs. (Dkt. 31-28 at 7.) Specifically, Wilhelm stated: “I mean, I think I lacked evidence [of race discrimination.] I lacked facts. I don't think the-I personally was trying to advocate for the members at all costs. But to make a claim like that, I think convoluted the process without evidence.” (Id.)

         Wilhelm, in his discretion, referred the plaintiffs' grievances to representative Jimmie Williams. (Dkt. 33.) Williams' main argument in the stage three grievance hearing was that there was no just cause for termination. (Dkt. 33 at 4.) However, Williams also discussed the plaintiffs' race discrimination claims in his meetings with the company. (Dkt. 33 at 4.) Williams' affidavit states that he discussed the allegations of race discrimination with Gibbons when they met. Gibbons explained the tiered system of punishment based on gate swipe data. (Id.) In light of Gibbons' explanation and gate-swipe documentation, Williams was “not ...

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