Opinion
Civil Action No. 04-761 Section "N" (2).
January 14, 2005
ORDER AND REASONS
Plaintiff, Debbie Williams, sued her employer, Cytec Industries, Inc., and her union, the Paper, Allied-Industrial, Chemical and Energy Workers International Union AFL-CIO, Local 4-447 ("PACE" or the "Union"). She alleges that Cytec discriminated against her on the basis of her sex and retaliated against her in violation of Title VII. 42 U.S.C. § 2000e-5. Williams also asserts claims against Cytec for breach of the collective bargaining agreement and against the Union for breach of its duty of fair representation under the Labor Management Relations Act, 29 U.S.C. § 185, the National Labor Relations Act, 29 U.S.C. §§ 151-169, and the Labor Management Reporting and Disclosure Act. 29 U.S.C. §§ 411(a), 529. She seeks injunctive relief and compensatory and punitive damages. Complaint, Record Doc. No. 1.
Although Williams purports to invoke the court's supplemental jurisdiction over her claims arising out of Louisiana law, her complaint does not assert any such state law claims. Id.
This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 11. Oral argument was conducted on January 12, 2004. Participating were Tracie Jackson, representing plaintiff; Benjamin Banta, representing Cytec; and Karen Torre, representing the Union.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that Cytec's motion for summary judgment is GRANTED IN PART AND DENIED IN PART, as follows. IT IS FURTHER ORDERED that the Union's motion for summary judgment is GRANTED.
I. FACTUAL BACKGROUND
The following facts are accepted as undisputed, solely for purposes of the pending motions for summary judgment, except as noted.
Williams has worked for Cytec, a chemical company, since 1989 and is a member of PACE. She was certified as a panel board operator in the urea division of the AMEL department in January 2001 and was certified as a centrifuge operator in the melamine division of the AMEL department in January 2002. She began working in the melamine division in mid-2001. Plaintiff's Exh. 9, deposition of Wayne Terrio, at pp. 31, 47. Plaintiff's supervisor in the in the urea division was Wayne Terrio and her supervisor in the melamine division was Ron Bordelon. Ernie Becnel was superintendent of the AMEL department.
Counsel explained at oral argument that AMEL is an acronym for a joint venture between Cytec and another company.
Certification in such "base jobs" and attending a three-day "Train the Trainer" class were prerequisites to becoming an Assistant Trainer. Cytec generally offered the Train the Trainer class to its employees once or twice a year. The purpose of the class was to give employees training skills so they could train other employees how to perform various tasks.
An employee who completes the Train the Trainer class doesnot receive any pay raise or promotion and is in no better position to obtain a promotion because promotions are based on seniority, pursuant to the collective bargaining agreement between Cytec and PACE. The sole economic benefit of completing the class is that the employee qualifies to become an Assistant Trainer. Assistant Trainers work on their scheduled days off from their base jobs and are paid overtime pay for their training work. After completing the Train the Trainer class, the employee must bid for an Assistant Trainer job, if one is available in the department. The job is awarded for a three-year term based on seniority. Plaintiff's Exh. 8, deposition of Roderick Lincoln, Cytec's manager of organization development, at pp. 4, 44-45, 106; Plaintiff's Exh. 9, Terrio deposition, at p. 50.
Beginning some time in 2000, Becnel discontinued his former practice of posting sign-up sheets in the AMEL department for the Train the Trainer class. After that date, Lincoln would notify the Designated Trainer or the Process Compliance Coordinator in each department of an upcoming class. According to Becnel, the employees knew of this procedure and were supposed to notify the Designated Trainer or the Process Compliance Coordinator of their interest in taking the class. Plaintiff's Exh. 10, deposition of Ernest Becnel, at pp. 40-41. Terrio confirmed that the Designated Trainer or the Process Compliance Coordinator in the unit would notify Lincoln of which employees were interested in taking the class. Plaintiff's Exh. 9, Terrio deposition, at pp. 19-20, 26, 76-77.
Cytec held a Train the Trainer class in April 2001, which Williams was scheduled to attend. However, she was told shortly before the class began that she could not attend the class because no one was available to cover her regular job.
The collective bargaining agreement allows but does not require Cytec to provide someone to cover an employee's base job so that she may attend the Train the Trainer class. Cytec Exh. 2, collective bargaining agreement, at pp. 41-42 ("The Companymay, however, temporarily assign an employee to other jobs within the Unit for the following reasons:. . . . (2) To allow for training of other employees within unit.") (emphasis added). Supervisors will allow an employee to attend the class only if another employee is available to cover her base job. Seniority plays no part in determining who may attend the Train the Trainer class. Anyone who is eligible may attend, provided that another employee is available to cover her job. Plaintiff's Exh. 10, Becnel deposition at pp. 11, 23-24; Plaintiff's Exh. 8, Lincoln deposition at p. 65; Plaintiff's Exh. 9, Terrio deposition at pp. 23-24.
A less senior, male employee from the AMEL unit attended the April 2001 class instead of Williams. Terrio and Becnel told Williams that she would be scheduled for the next class. Plaintiff's Exh. 28, declaration of Debbie Williams. Two female employees attended the April 2001 class. Plaintiff's Exh. 21, roster of attendees dated April 4, 2001.
Terrio and Becnel each testified that he recalled no such conversation. Plaintiff's Exh. 9, Terrio deposition, at pp. 28, 64; Plaintiff's Exh. 10, Becnel deposition, at pp. 14-16.
In October 2001, Williams signed a Master Bid Sheet, indicating that she wanted to bid for an available Assistant Trainer position, although she was not qualified for it because she had not yet taken the Train the Trainer class. Cytec Exh. 15, Master Bid Sheet dated October 23, 2001. Williams believed that this action signed her up for the next Train the Trainer class. Plaintiff's Exh. 1, deposition of Debbie Williams, at pp. 68-69. Nothing on the Master Bid Sheet refers to the Train the Trainer class, and the Master Bid Sheet was posted long after Becnel discontinued his procedure of posting sign-up sheets for the class.
However, contrary to Becnel's testimony, plaintiff's fellow operator, Jessie Johnson, testified consistently with Williams that employees signed a single list to notify management of their desire both for training and to be Assistant Trainers, even if they had not yet taken the Train the Trainer class. Plaintiff's Exh. 11, at pp. 8-10, 16-17. Terrio also testified that, at least as late as April 2001, the process compliance coordinator would gather the names of employees who wanted to take the Train the Trainer class from the Master Bid Sheet, which they had signed to indicate their interest in becoming Assistant Trainers, and would report those names to Lincoln. Plaintiff's Exh. 9, Terrio deposition, at pp. 20, 26. Walter Eccles, an operator in another department, testified that he signed up to become an Assistant Trainer and was then scheduled to attend the Train the Trainer class from that list. Plaintiff's Exh. 6, deposition of Walter Eccles, at pp. 8-11, 15.
Cytec held Train the Trainer classes in late January 2002 and on August 5 through August 7, 2002. Plaintiff was not aware of and did not attend either class. One female employee attended the January 2002 class. Plaintiff's Exh. 22, roster of attendees dated January 30, 2002.
Williams was not scheduled to work and did not work from July 30 through August 5, 2002. She found out about the August 5, 2002 Train the Trainer class soon after it was over. She did not find out about the January 2002 class until after she filed the instant lawsuit.
The collective bargaining agreement between Cytec and PACE contains a fourstep grievance and arbitration procedure. At the first step, the employee or shop steward presents the grievance to the employee's supervisor. If the employee does not receive a satisfactory response, the Union submits the Step 2 grievance to the department manager or his representative. If the grievance is not settled, it is then presented to the company's Industrial Relations (Human Resources) Manager. If it is not resolved at Step 3, it can be taken to arbitration. Decisions to undertake arbitration are put to a vote of the Union membership. Cytec Exh. 2, collective bargaining agreement, article IX, at pp. 25-28.
On August 26, 2002, Williams, through her union representative, filed a first step grievance jointly with her male co-operator, Johnson. Williams and Johnson both alleged that Cytec had violated the collective bargaining agreement by discriminating against them (the basis of the alleged discrimination was not specified) when it denied them the opportunity to attend the August 5, 2002 Train the Trainer class.
Plaintiff's immediate supervisor, Bordelon, responded on September 23, 2002, stating that neither Williams nor Johnson had approached him about attending the class and that they should have asked to attend if they were interested. He stated that he would look into a Train the Trainer class for plaintiff. Cytec Exh. 7.
Bordelon also responded that Johnson was in a different position from Williams because he had already taken the class and that he would be scheduled for an interview. Cytec Exh. 7. Johnson took the Train the Trainer class in 1995 while employed in the Kellogg Ammonia Unit. However, he was told that he needed to take the class again after he moved to the AMEL department. After Bordelon responded to his grievance, Johnson was told that he did not need to take the class again, and he was designated as an Assistant Trainer. He did not request or receive any compensation for lost opportunities to work as an Assistant Trainer. Plaintiffs Exh. 11, Johnson deposition, at pp. 7-8, 12-14.
Williams was not satisfied with Bordelon's response and she asked her union representative, Johnny Friloux, to proceed to the second step of the grievance process. Friloux presented her grievance to Becnel. Friloux asked several times for a written response but was told only that Cytec was working on it. Plaintiff's Exh. 2, deposition of Johnny Friloux, at pp. 16-17. Dissatisfied with Friloux's efforts, Williams asked Alan Creecy, another union representative, to take over her grievance. Creecy met with Bordelon for a Step 2 meeting at which Bordelon addressed only Johnson's part of the grievance. Bordelon never provided a written, second step response to Williams. Plaintiff's Exh. 3, deposition of Alan Creecy, at pp. 9-12.
On September 18, 2002, Williams filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that Cytec had engaged in race and sex discrimination and retaliation against her when it had denied her the opportunity to take the Train the Trainer class in April 2001. The charge did not mention the August 2002 class. The EEOC dismissed plaintiff's charge as untimely. That untimely charge is not the basis for plaintiff's claims for damages in the instant action.
Although the charge says April 2002, Cytec Exh. 8, all parties agree that the noted year was a typographical error and should have been 2001.
In response to plaintiff's grievance and EEOC charge, her supervisors decided that she would attend the next Train the Trainer class, which was held on April 8 through 10, 2003. Cytec Exh. 9, deposition of Human Resources director David Schnake, at pp. 10-11, 21, 23-24; Cytec Exh. 19, Becnel deposition, at pp. 32-33.
On October 17, 2002, Williams filed internal union charges against Friloux for misrepresenting her and Johnson concerning their grievance. Members of the Union's Executive Board investigated and decided not only that her charges lacked merit, but that her grievance had been resolved when Cytec agreed to have her attend the next Train the Trainer class. The membership of the Union voted to uphold the Executive Board's decision to dismiss plaintiff's charges against Friloux. PACE Exh. 2, declaration of Brent Petit, President of PACE.
The day after Williams finished the April 8, 2003 class, she filed another charge with the EEOC, alleging that Cytec had engaged in sex discrimination and retaliation against her when it had denied her the opportunity to take the Train the Trainer class in August 2002. Cytec Exh. 10. Plaintiff explained that she filed her charge with the EEOC because she realized in March 2003 that her "grievance wasn't going any further," Plaintiff's Exh. 1, Williams deposition at p. 29, and because, after completing the April 2003 class, she "felt the union wasn't prepared to do anymore [sic] with the grievance." Id. at pp. 120-21. The instant lawsuit is based on this EEOC charge.
Following completion of the Train the Trainer class in April 2003, Williams began working as an Assistant Trainer and receiving overtime pay.
Williams had previously filed an EEOC charge against Cytec on October 24, 2000 based on sex and race discrimination. Cytec Exh. 11. This charge was successfully mediated and the parties entered into a written settlement agreement. Cytec Exh. 12. Despite plaintiff's allegation to the contrary in her declaration, Plaintiff's Exh. 28, the settlement agreement does not mention anything about having Williams attend a Train the Trainer class or train as an Assistant Trainer because that type of training was not the subject of her EEOC charge. Id.; Becnel deposition, at pp. 20-23. The parties agree that this EEOC charge was protected activity under Title VII and that plaintiff bases her claim of later retaliation on this charge.
II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F. 3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim.National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; `the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Id. at 713 (quoting Anderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists."Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. Material Fact Issues Are in Dispute Concerning Plaintiff's Sex Discrimination Claim
Williams has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Although the precise articulation of the elements of a prima facie case will vary according to the facts of the case and the nature of the claim, a plaintiff usually satisfies this initial burden by showing that: (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) the employer continued to seek applicants with the plaintiff's qualifications, the employer selected someone of a different race or sex, or that others [outside her protected class] similarly situated were treated more favorably than she.Washington v. Veneman, No. 04-30233, 2004 WL 2137444, at *2 (5th Cir. 2004) (unpubl. opin. avail. on Westlaw) (citations omitted); accord Bryan v. McKinsey Co., 375 F.3d 358, 360 (5th Cir. 2004); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 324 (5th Cir. 2002); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
Although Bryan was a race discrimination case brought under 42 U.S.C. § 1981, the same standard of proof applies to discrimination claims brought under Title VII and under Section 1981. Roberson v. Alltel Information Servs., 373 F.3d 647, 651 (5th Cir. 2004) (citations omitted).
Once established, the plaintiff's prima facie case raises an inference of intentional discrimination. The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. If the defendant proffers such a legitimate reason, the burden shifts back to the plaintiff to show that the defendant's reason was merely a pretext for discrimination. Of course, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.Washington, 2004 WL 2137444, at *2 (quotations and citations omitted).
For purposes of their summary judgment motions only, defendants concede that Williams can establish the first three prongs of a prima facie case of sex discrimination. They argue, however, that she has no evidence to prove the fourth prong that "similarly situated" employees outside her protected class were treated more favorably than she was "under circumstances that are essentially identical." Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096, 1101 (5th Cir. 1985); see also Perez v. Texas Dep't of Crim. Justice, No. 03-50985, 2004 WL 2938636, at *4 (5th Cir. Dec. 21, 2004) ("for employees to be similarly situated[,] those employees' circumstances, . . . must have been nearly identical") (quotation omitted) (emphasis added); accord Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001); Little v. Republic Reference. Co., 924 F.2d 93, 97 (5th Cir. 1991).
The Union adopts Cytec's arguments concerning plaintiff's discrimination and retaliation claims.
Cytec has suggested that the court use a test for "similarly situated" that is used in circuits other than the Fifth Circuit. I reject this suggestion and am applying Fifth Circuit case law to defendant's arguments, not the law of other circuits.
Once plaintiff has established a prima facie case, defendant's intent to discriminate may also be inferred from disparate treatment of similarly situated employees outside her protected class. Wallace, 271 F.3d at 221; Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000).
It is undisputed that two men, Mark Bolden and Walter Eccles, were treated more favorably than Williams was. Bolden filed a grievance in 1997, alleging that Cytec had denied him the opportunity to take the Train the Trainer class in 1995. Cytec not only arranged for him to attend the next available class but also compensated him for the lost overtime pay that he could have earned as an Assistant Trainer over the preceding two years if he had attended the class in 1995. Plaintiff's Exh. 12, Mark Bolden deposition at pp. 5, 8-13, 16.
Cytec permitted Eccles to work as an Assistant Trainer and to earn overtime pay, although he has never taken the Train the Trainer class. Like Williams, he had been scheduled to take the class but was unable to attend because no one was available to cover his job. Nonetheless, he has been working as an Assistant Trainer one day a week since February 2002. He was never notified after that date of the availability of or the need for him to attend a Train the Trainer class. Plaintiff's Exh. 6, Eccles deposition, at pp. 6, 9-12, 14-17.
I cannot conclude on the current record that Bolden and Eccles are not similarly situated to Williams. On one hand, the similarities between their circumstances are numerous: all are hourly workers and operators, subject to the collective bargaining agreement and to the same policies concerning eligibility for overtime pay as Assistant Trainers, and all made their interest in the Train the Trainer class known by means other than signing up for the class on a sign up sheet exclusively for that purpose or notifying the process compliance coordinator.
On the other hand, there are some differences. Bolden and Eccles worked in different units and reported to different supervisors. Bolden's settlement in 1997 was handled by the Human Resources director at that time, Eileen O'Brien, but a different Human Resources director, David Schnake, was working for Cytec when plaintiff's grievance arose. However, these differences seem trivial and not so numerous as to convince me that a reasonable jury could not find that Bolden and Eccles were similarly situated.
Furthermore, plaintiff may prevail at the final step of the burden-shifting analysis by establishing that defendant's proffered reasons for not scheduling her into the class were pretextual. Cytec's stated reason for not placing Williams in the August 2002 class was that her supervisors did not know of her interest.
As to the sign up procedure for the Train the Trainer class, on the one hand, the Master Bid Sheet is clear on its face that it is used only to bid for the available positions listed therein, including Assistant Trainer. Becnel testified that the proper procedure after 2000 was for employees to notify the Designated Trainer or the Process Compliance Coordinator of their interest in taking the class, rather than to sign up for it. On the other hand, Williams, Terrio, Johnson and Eccles all testified that signing up for the Assistant Trainer job, despite not having taken the Train the Trainer class, was the way to indicate the employee's interest in taking the class.
Disputed material facts are at issue concerning whether Williams made her interest in taking the class so clear to Cytec, either through signing the Master Bid Sheet in October 2001 or because Terrio and Becnel had told Williams in April 2001 that she would be scheduled for the next class, that Cytec's stated reason for not placing her in the August 2002 class so lacks credibility that it could be viewed as a pretext for discrimination. Cytec's reason may be viewed as unbelievable by a factfinder, particularly in light of the looseness of the sign-up requirement as applied to Johnson and Eccles, the apparently ineffective (if the testimony of Williams, Johnson and Eccles on this point is credited) notification of employees by management that the sign-up procedure had changed, the undisputably better treatment of two male employees and the stage of involvement of the Human Resources Director in Bolden's grievance compared to plaintiff's grievance.
The United States Supreme Court has stated that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). However,
[t]he ultimate question is whether the employer intentionally discriminated, and proof that the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct. In other words, it is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.Id. at 146-47 (2000) (quotation and citation omitted) (emphasis in original).
Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred . . .
Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.Id. at 148-49 (citations omitted).
The summary judgment record in this case is voluminous, convoluted and confused. This case may be one, as the Supreme Court discussed in Reeves, in which plaintiff has created only weak fact issues as to whether Bolden and Eccles are similarly situated and whether Cytec's proffered reason was untrue. A factfinder could disbelieve Cytec's proffered reason and yet decline to believe that Cytec's actual reason was discrimination. Although I cannot conclude on this record that no disputed fact issues exist, I will certainly revisit the issue at the conclusion of plaintiff's case in chief at trial.
Accordingly, defendants' motions for summary judgment are denied as to plaintiff's claim of sex discrimination.
C. Plaintiff Fails to Establish a Prima Facie Case of Retaliation
To present a prima facie case of retaliation under Title VII, Williams "must show that: (1) [s]he engaged in an activity protected by Title VII; (2) [s]he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action." Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (citations omitted).
Defendants concede solely for purposes of their summary judgment motions that Williams could establish the first two elements of her prima facie case of retaliation. However, they argue that she cannot establish the necessary causal link between her protected activity and the adverse employment action.
Plaintiff's protected activity consisted of filing an EEOC charge on October 24, 2000 based on sex and race discrimination. Cytec Exh. 11. Williams alleges that Cytec retaliated against her for that charge by denying her participation in the August 2002 training class. Plaintiff argues that Cytec knew of her interest in the class because (1) Becnel and Terrio had promised her in April 2001 that she could attend the next class and (2) she had signed the October 2001 Master Bid Sheet for the Assistant Trainer position, for which the Train the Trainer class was a prerequisite.
No reasonable factfinder could find a causal link between plaintiff's October 24, 2000 EEOC charge and Cytec's failure to allow her to attend the class in August 2002. First, Terrio was no longer plaintiff's supervisor after she took a job in the melamine division in mid-2001, so his knowledge of her interest in April 2001 is not material to the August 2002 incident.
Second, the lack of temporal proximity between the October 2000 EEOC charge and the August 2002 Train the Trainer class, a period of 17 months, virtually mandates a finding of no causation. Temporal proximity must be "very close" to establish causation. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citations omitted). "Action taken (as here) 20 months later suggests, by itself, no causality at all." Id. at 274; accord Salinas v. University of Tex.-Pan Am., No. 02-41480, 2003 WL 21697459, at *2 (5th Cir. July 21, 2003) (unpubl. opin. avail. on Westlaw).
Even if Becnel and/or Bordelon knew as late as October 2001 of plaintiff's interest in taking the Train the Trainer class, Cytec's failure to include her in the August 2002 class nine months later is too far apart in time to establish causation.See Breeden, 532 U.S. at 273-74 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) ("3-month period insufficient"); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) ("4-month period insufficient")); Higdon v. Jackson, No. 03-14894, 2004 WL 2903979, at *7 (11th Cir. Dec. 16, 2004) (unpubl. opin. avail. on Westlaw) (three-month period too long in absence of any other evidence of retaliation);Scurto v. Commonwealth Edison Co., No. 01-1861, 2002 WL 1180236, at *3 (7th Cir. June 3, 2002) (unpubl. opin. avail. on Westlaw) (10 months too long). Thus, Williams has failed to produce evidence sufficient to create a material fact issue in dispute concerning a causal link between the adverse employment action and her protected activity.
Williams also argues that Cytec had engaged in continuing retaliation since she filed her EEOC charge of race and sex discrimination on October 24, 2000 by denying her participation in the Train the Trainer class in April 2001, January 2002 and August 2002.
Plaintiff's EEOC charge based on the April 2001 Train the Trainer class was dismissed as untimely and therefore cannot be the basis for damages in the instant action. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5th Cir. 2001) (citing 42 U.S.C. § 2000e-5(e)(1)). Because Williams never filed an EEOC charge concerning the January 2002 class, that class also cannot be the basis for damages. Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). Plaintiff apparently attempts to resurrect these incidents as bases for recovering damages through her continuing violation argument.
Williams points out that, in addition to filing the October 24, 2000 EEOC charge, she filed three grievances on October 25, 2000. Plaintiff's Exh. 24. However, none of these grievances alleged discrimination and therefore would not constitute protected activity under Title VII.
Plaintiff cannot prove a continuing violation based on her lack of participation in the three Train the Trainer classes. Claims based on discrete acts of failure to train cannot constitute a continuing violation as a matter of law.
The district court was entirely correct in refusing to apply the continuing violation theory to the appellants' racial discrimination for failure to promote and train claims. This court's decision in Huckabay makes clear that a one-time employment event, including the failure to hire, promote, or train . . . is the sort of discrete and salient event that should put the employee on notice that a cause of action has accrued. . . . [These] discrete adverse actions, although racially motivated, cannot be lumped together with the day-to-day pattern of racial harassment and therefore, if otherwise untimely, cannot be saved by the continuing violation doctrine. Celestine v. Petroleos De Venezuela SA, No. 03-30706, 2004 WL 1941739, at *4 n. 8 (5th Cir. Sept. 1, 2004) (emphasis added) (unpubl. opin. avail. on Westlaw) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998)) (quotations and additional citations omitted).
Because Williams cannot establish a prima facie case of retaliation, defendants are entitled to summary judgment in their favor as a matter of law on this claim.
D. Plaintiff's Claims Under the Labor Relations Statutes
1. Section 301(a) of the Labor Management Relations Act
Section 301(a) of the Labor Management Relations Act provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, . . . may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy and without regard to the citizenship of the parties.29 U.S.C. § 185(a).
Section 301(a) preempts causes of action arising in tort or contract and provides the exclusive remedy for an employee covered by a collective bargaining agreement. Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994) (citing United Steelworkers v. Rawson, 495 U.S. 362, 369 (1990);Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 220 (1985)).
Section 301(a) confers subject matter jurisdiction on the district courts to hear an employee's lawsuit alleging that his employer has breached a collective bargaining agreement between the employer and the employee's union, and alleging that the union has breached its duty of fair representation to the employee. Delcostello v. International Bhd. of Teamsters, 462 U.S. 151, 164, 165 (1983) (citation omitted); Thomas, 39 F.3d at 616 (citation omitted); Gutierrez v. United Foods, Inc., 11 F.3d 556, 558-59 (5th Cir. 1994). These claims are referred to as hybrid claims.
An employee who sues under Section 301(a) is not required to sue both his employer and the Union. The Labor Management Relations Act provides federal jurisdiction over such claims regardless how the employee decides to proceed. "The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both." DelCostello, 462 U.S. at 165; accord Carrion v. Enterprise Ass'n, 227 F.3d 29, 33 (2d Cir. 2000); Thomas, 39 F.3d at 621.
"Whether the employee sues both the labor union and the employer or only one of those entities, he must prove the same two facts to recover money damages: that the employer's action violated the terms of the collective-bargaining agreement and that the union breached its duty of fair representation." Chauffeurs, Teamsters Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990) (citation omitted).
Thus, Williams must prove both that Cytec breached the anti-discrimination provision of the collective bargaining agreement and that PACE breached its duty of fair representation by mishandling or failing to invoke the grievance procedure. If she cannot prove either of those elements, she cannot prevail on her hybrid claim against either defendant.
Williams also argues that Cytec breached the settlement agreement, Cytec Exh. 12, when it failed to allow her to take the Train the Trainer class. However, neither the underlying EEOC charge nor the settlement agreement had anything to do with the Train the Trainer class.
However, defendants argue initially that plaintiff's claim under Section 301 (a) is untimely. A six-month statute of limitations applies to plaintiff's claim. DelCostello, 462 U.S. at 171-72; Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 480 (5th Cir. 1991). "The statutory period begins to run when the plaintiff either knew or should have known of the injury itself, i.e., the breach of duty of fair representation, rather than of its manifestations." Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th Cir. 1989); see also Barrow, 932 F.2d at 480 ("The statute of limitations period began to run when Barrow discovered that the [collective bargaining agreement] was violated.").
Plaintiff filed her charge with the EEOC on April 11, 2003, alleging that Cytec had engaged in sex discrimination and retaliation against her when it had denied her the opportunity to take the Train the Trainer class in August 2002. Williams testified that she filed the charge because she realized in March 2003 that her "grievance wasn't going any further," Plaintiff's Exh. 1, Williams deposition at p. 29, and she "felt the union wasn't prepared to do anymore with the grievance" once she had taken the April 8, 2003 class. Id. at pp. 120-21.
Thus, Williams admittedly knew or should have known by April 11, 2003 that the Union was not going to continue to pursue her grievance. The six-month statute of limitations began to run no later than that date and it expired no later than October 11, 2003. Plaintiff's testimony that a union official contacted her in September 2004 to inquire about the status of her grievance, Plaintiff's Exh. 1, Williams deposition at pp. 105-106, is irrelevant. This contact cannot revive her untimely claim when the statute of limitations had already expired nearly one year earlier. Barrow, 932 F.2d at 480.
Williams filed the instant lawsuit on March 15, 2004, five months after the statute of limitations had expired. Accordingly, her hybrid claim is time-barred and defendants are entitled to summary judgment in their favor on this claim as a matter of law.
2. The Labor Management Reporting and Disclosure Act
Williams invoked the Labor Management Reporting and Disclosure Act ("the Act") in her complaint. She has no claim under that statute as a matter of law. Sections 101(a)(5) and 609 of the Act provide that no member of any labor organization may be fined, suspended, expelled, or otherwise disciplined by the union for exercising her rights secured by the Act. 29 U.S.C. §§ 411(a), 529.The United States Supreme Court has held that, "by using the phrase `otherwise discipline,' Congress did not intend to include all acts that deterred the exercise of rights protected under the [Act], but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules." Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 91 (1989).
"A local union's action or inaction in the processing of a grievance is not `discipline' or punishment within the meaning of the [Act]." Hebert v. General Truck Drivers, Chauffeurs, Warehousemen Helpers, Local 270, No. 03-1744, 2004 WL 1597144, at *4 (E.D. La. Jul. 16, 2004) (Africk, J.) (citing Breininger, 493 U.S. at 90-92; Camporeale v. Airborne Freight Corp., 732 F. Supp. 358 (E.D.N.Y. 1990)).
Plaintiff also cites the unsuccessful motion of the Union's Executive Board to censure her, after she had brought internal charges against Friloux that had been dismissed. The union membership voted against any censure. Plaintiff's Exh. 5, deposition of Brent Petit, at pp. 29-37. This motion cannot be considered "discipline" within the meaning of the Act when it resulted in no punishment of any kind.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Union's motion for summary judgment is GRANTED and that plaintiff's claims of breach of the duty of fair representation under the Labor Management Relations Act, the National Labor Relations Act and the Labor Management Reporting and Disclosure Act are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Cytec's motion for summary judgment is GRANTED IN PART AND DENIED IN PART, as follows.
IT IS ORDERED that Cytec's motion is GRANTED as to plaintiff's claims of retaliation under Title VII and of breach of contract under the Labor Management Relations Act, the National Labor Relations Act and the Labor Management Reporting and Disclosure Act, and these claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Cytec's motion is DENIED as to plaintiff's claim of sex discrimination under Title VII. Trial on this claim will proceed as scheduled on January 31, 2005 with a jury.