CONTI, District Judge.
Pending before the court is a motion for reconsideration (Docket No. 89) filed by United Steelworkers of America, AFL-CIO-CLC-Local 53 ("USW Local 53") and United Steelworkers of America District 10 ("USW D-10," and together with USW Local 53, the "USW entities" or the "Union"). For the reasons that follow, the motion will be denied.
A motion for reconsideration is typically granted only if one of three situations is shown: "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice." Reich v. Compton, 834 F.Supp. 753, 755 (E.D.Pa. 1993) (citing Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D.Pa.1992)).
Williams v. Pittsburgh, 32 F.Supp.2d 236, 238 (W.D.Pa.1998).
The USW entities argue that the court erred in denying their motion for summary judgment with respect to the claims asserted by plaintiff Janice L. Hubbell ("Hubbell") concerning the failure of the Union to grieve her ten-day suspension for an incident occurring on June 1, 2006. (Doc. No. 90 at 4-12.) In a prior memorandum opinion dated February 24, 2010, the court determined that a genuine issue of material fact existed about whether Hubbell's employer, World Kitchen, LLC ("World Kitchen"), discriminated against her on the basis of sex when it imposed the suspension. Hubbell v. World Kitchen, LLC, et al., 688 F.Supp.2d 401, 423-29 (W.D.Pa.2010). The court also determined that a genuine issue of material fact existed concerning whether the USW entities discriminated against Hubbell on the basis of sex by abandoning the grievance process after James Watt ("Watt"), a staff representative for USW D-10, viewed a surveillance tape depicting the incident in question. Id. at 434-35. Only the latter determination is presently at issue.
Hubbell's claims arise under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. §§ 951 et seq. The language of Title VII prohibiting sex and other kinds of discrimination by labor organizations is codified at 42 U.S.C. § 2000e-2(c), which provides:
42 U.S.C. § 2000e-2(c). The PHRA declares it to be an "unlawful discriminatory practice"
The United States Supreme Court has admonished that a distinction exists between what constitutes a violation of Title VII and what a plaintiff must show to establish such a violation in a judicial proceeding. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (recognizing a distinction between the allegations needed to state a claim and the evidence needed to establish a claim). The USW entities argue that Hubbell did not present evidence sufficient to establish that they violated her rights under Title VII. (Doc. No. 90 at 10-12.) In order to address properly the issues raised by the pending motion for reconsideration, the court must delineate the scope of Title VII's statutory protections before discussing the evidence contained in the record. The evidentiary issues must be understood in relation to the underlying legal issues.
The plain language of § 2000e-2(c)(1) declares it to be an "unlawful employment practice" for a labor organization "to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his [or her] . . . sex. . . ." 42 U.S.C. § 2000e-2(c)(1) (emphasis added). Since Hubbell does not allege that the Union "excluded" or "expelled" her from its membership, any liability of the Union under subsection (1) must stem from an allegation that it otherwise discriminated against her. In Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the Supreme Court held that a union "discriminates" within the meaning of Title VII when it "pursue[s] a policy of rejecting disparate-treatment grievances presented by blacks solely because the claims assert racial bias and would be very troublesome to process." Id. at 669, 107 S.Ct. 2617. The decision in Goodman affirmed a decision which had been issued by the United States Court of Appeals for the Third Circuit. Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985). In affirming the court of appeals' decision, the Supreme Court expressly relied on subsection (1) without basing its holding on subsection (3). Goodman, 482 U.S. at 667, 107 S.Ct. 2617. The Supreme Court explained:
The USW entities contend that a finding of union liability in this case is precluded by the decision of the United States Court of Appeals for the Third Circuit in Anjelino v. New York Times Co., 200 F.3d 73 (3d Cir.1999). They base their argument on the following passage from Anjelino:
Anjelino, 200 F.3d at 95-96 (emphasis in original; footnote omitted). The USW entities rely on Anjelino for the proposition that Hubbell cannot proceed against them without showing that they "instigated or actively supported" the discrimination allegedly perpetrated by World Kitchen.
The court acknowledges that the record is devoid of evidence that the USW entities "instigated or actively supported" Hubbell's ten-day suspension. The basis for Hubbell's claims against the USW entities with respect to the suspension is their failure to grieve properly the suspension, not their hypothetical instigation of it. Hubbell, supra, at 434-35. At first glance, such a claim might appear to be precluded by Anjelino. A careful examination of the language in Anjelino, however, reveals that no conflict exists between that decision and this court's prior memorandum opinion.
In Anjelino, the court of appeals observed that "the Union was not the employer of the appellants; . . . even though some of the supervisors and workers who are alleged to have discriminated against the appellants may have been members of the Union." Anjelino, 200 F.3d at 95. While the precise theory of discrimination that was pursued by the plaintiffs in that case is not readily apparent from the four corners of the court of appeals' opinion, the observation quoted above suggests that the plaintiffs were attempting to impute the employer's discrimination to the union simply because the individuals responsible for that discrimination were affiliated with the union as well as the employer. The court of appeals did not specify which subsection was at issue, but the tenor of its reasoning suggests that the plaintiffs were attempting to proceed under subsection (3), which declares it to be
In Anjelino, the court of appeals did not cite or reference the Supreme Court's decision in Goodman. Anjelino, 200 F.3d at 96. The court of appeals did, however, cite the decision of the United States Court of Appeals for the District of Columbia Circuit in Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C.Cir.1988). In Berger, the District of Columbia Circuit Court of Appeals observed:
Berger, 843 F.2d at 1429-30 (footnote omitted). This paragraph begins and ends on the same two pages of the opinion in Berger referenced in the citation found in the Court of Appeals for the Third Circuit's opinion in Anjelino.
Hubbell's filings make clear that her claims against the USW entities are based upon the actions or inactions of the Union itself, and not on the underlying discriminatory acts allegedly committed by World Kitchen. Compl. ¶ 12(g). She is not attempting to hold the USW entities vicariously liable for World Kitchen's discrimination. Instead, she alleges discrimination committed by the USW entities. Therefore, her claims are governed by the standard enunciated in Goodman, rather than by the standard enunciated in Anjelino. Berger, 843 F.2d at 1429-30.
Having determined that Hubbell's claims are governed by Goodman, the court must consider the substantive requirements of subsection (1) as construed in that decision. The USW entities argue that Goodman is applicable only where a union maintains a policy of refusing to file or pursue any and all grievances presented by members of a statutorily-protected class. This argument is unpersuasive. Title VII, among other things, prohibits discrete acts of discrimination. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ("Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'"). This case is not a "pattern or practice" case brought by the Attorney General pursuant to 42 U.S.C. § 2000e-6(a). Instead, it is an action brought by a private individual to redress discrete incidents of alleged discrimination. Consequently, Hubbell need only establish that the USW entities engaged in a single act of discrimination to hold the Union liable under Title VII. King v. Laborers Int'l Union of N. Am., 443 F.2d 273, 277-78 (6th Cir.1971).
The union at issue in Goodman had maintained a policy of "rejecting disparate-treatment grievances presented by blacks solely because the claims assert[ed] racial bias and w[ere] very troublesome to process." Goodman, 482 U.S. at 669, 107 S.Ct. 2617. It does not follow, however, that a plaintiff attempting to proceed under Title VII with a claim similar to those brought by the plaintiffs in that case must establish the existence of a discriminatory policy (rather than merely the commission of a single discriminatory act) in order to
In Goodman, the Supreme Court construed the phrase "otherwise to discriminate" broadly enough to encompass a "deliberate choice not to process grievances." Goodman, 482 U.S. at 667, 107 S.Ct. 2617. Because a Title VII claim may be raised when there is a single act of discrimination, a deliberate choice by a union not to process a grievance may give rise to a claim against it. "Numerous private cases have found a Title VII violation upon showings of proof limited to a single act (e.g. a single breach of the duty of fair representation; a discharge or failure to train for advancement based upon racial motivations or causes). . . ." King, 443 F.2d at 278 (emphasis added). Hubbell's claims against the USW entities are not foreclosed simply because her "factual presentation" is less "compelling" than that made by the plaintiffs in Goodman. Durko v. OI-NEG TV Prods., Inc., 870 F.Supp. 1268, 1277 (M.D.Pa.1994).
In Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir.1980), the United States Court of Appeals for the Tenth Circuit declared that "[a] union cannot acquiesce in a company's prohibited employment discrimination and expect to evade Title VII liability for such discrimination." Id. at 1311. This court referenced that statement in its prior memorandum opinion. Hubbell, supra, at 434-35. In light of the USW entities questioning the court's reliance on this language in Romero, a more detailed explanation concerning what constitutes acquiescence is warranted.
In York v. American Telephone & Telegraph Co., 95 F.3d 948 (10th Cir.1996), the Court of Appeals for the Tenth Circuit clarified that "mere inaction does not constitute acquiescence." Id. at 956. Instead, "acquiescence" requires both "knowledge that prohibited discrimination may have occurred" and "a decision not to assert the discrimination claim." York, 95 F.3d at 956-57. Courts within the Tenth Circuit continue to apply this standard for determining whether a union has acquiesced in discrimination. See Perez v. United Air Lines, Inc., 362 F.Supp.2d 1230, 1240-41 (D.Colo.2005). Admittedly, a union has no affirmative duty to monitor independently an employer's activities in the absence of complaints from its members. Thorn v. Amalgamated Transit Union, 305 F.3d 826, 832-33 (8th Cir. 2002). Title VII does not require a union to "police" its members' workplace. EEOC v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 662 (7th Cir.2003). Courts within this circuit, however, have indicated (both before and after the court of appeals' decision in Anjelino) that where an aggrieved employee affirmatively requests union intervention to remedy an act of discrimination committed by his or her employer, a deliberate refusal or failure to act on that request may subject the union to liability under Title VII. Slater v. Susquehanna County, 613 F.Supp.2d 653, 664 (M.D.Pa.2009) (granting summary judgment in favor of a union because the plaintiff failed to provide evidence that she actually requested remedial action by the union); Durko, 870 F.Supp. at 1277 (denying a union's motion for summary judgment because the plaintiff provided evidence that her affirmative request for union intervention was ignored). The Supreme Court observed, albeit in dicta, that the relevant antidiscrimination
Since Title VII is an antidiscrimination statute, Hubbell cannot prevail in her claims against the USW entities absent a showing that the grievance process was abandoned for discriminatory reasons. See Tillman v. Pepsi Bottling Group, Inc., 538 F.Supp.2d 754, 770 (D.Del.2008); Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1076 (Alaska 2005). The evidence—reviewed in the light most favorable to plaintiff—indicates that, on June 1, 2006, both Hubbell and Don Kearns ("Kearns"), a male employee, were working without wearing protective gloves on both hands, in violation of World Kitchen's safety rules. Hubbell, supra, at 423. They were approached by their supervisor, Robert Crabb ("Crabb"), who reminded them to wear two gloves while working. Id. Hubbell ultimately received a ten-day suspension as a result of this incident, while Kearns was not disciplined. Id. at 424. World Kitchen argues that Hubbell was suspended for insubordination in connection with her reaction to Crabb's admonition, and not for her simple failure to comply with the applicable safety rule. Id. Because Hubbell disputes World Kitchen's characterization of the events in question, contending that she was suspended for engaging in conduct that was not materially different from that engaged in by Kearns, a genuine issue of material fact exists concerning whether World Kitchen suspended Hubbell because of her sex. Id. at 426-29. Given that Hubbell is the party opposing the entry of summary judgment in this case, the court must view the evidence in the light most favorable to her. Rite Aid of Pa., Inc. v. United Food & Commercial Workers Union, 595 F.3d 128, 131 (3d Cir.2010). The court's analysis proceeds under that standard and views the evidence to show that Hubbell's conduct was not materially different from that of Kearns, and that World Kitchen suspended her because of her sex.
Hubbell was notified of her suspension on June 22, 2006. (App. in Support of USW Defs.' Mot. for Summary J., Tab 27.) During her deposition, she testified that she wrote a letter to Union President Patrick J. Cahill ("Cahill") and Watt on June 24, 2006, requesting union intervention. (Doc. No. 66-2 at 42; Hubbell Dep. at 162.) On August 9, 2006, Cahill initiated the grievance process in connection with the suspension. (App. in Supp. of USW Defs.' Mot. for Summ. J., Tab 30.) In a declaration dated April 22, 2009, Watt stated that he elected to abandon the grievance process in late August 2006, after viewing a surveillance tape of the incident involving Hubbell, Kearns and Crabb. (App. in Supp. of USW Defs.' Mot. for Summ. J., Tab A; Watt Dec. at ¶ 43.) According to Watt—and disputed by Hubbell
As noted earlier, the USW entities are not liable for any acts of discrimination committed by World Kitchen. Anjelino, 200 F.3d at 95-96; Berger, 843 F.2d at 1429-30. Nevertheless, the Union can be held liable under Title VII for its own discrimination. 42 U.S.C. § 2000e-2(c)(1); Goodman, 482 U.S. at 667, 107 S.Ct. 2617. Viewing the evidence in the light most favorable to Hubbell, there is evidence to show that Hubbell was not insubordinate, that she was treated more harshly than Kearns because of her sex, and that the surveillance tape failed to substantiate World Kitchen's reasons for issuing the suspension.
In order to establish a prima facie case of discrimination, thereby shifting the burden of production to the USW entities, Hubbell need only provide evidence adequate to create an inference that the decision at issue was based on an illegal discriminatory criterion (i.e., sex).
The prima facie hurdle "`is not onerous' and poses `a burden easily met.'" Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 365 (3d Cir.2008) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). In most instances, a prima facie case can be established merely upon a showing that a similarly situated individual outside of the plaintiff's statutorily-protected class was treated more favorably than the plaintiff. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir.2006). The prima facie inquiry does not account for the "background circumstances" surrounding the underlying facts, which are normally considered at the pretext stage of the analysis. Iadimarco v. Runyon, 190 F.3d 151, 161-63 (3d Cir. 1999). In Goodman, the Supreme Court characterized a union's deliberate decision to reject a grievance brought by a member of a protected class alleging employment discrimination as discrimination by the union itself. Goodman, 482 U.S. at 667, 107 S.Ct. 2617. When the facts in this case are viewed in the light most favorable to Hubbell (as they must be at this stage), the suspension constituted "discrimination" under Title VII.
The inference of discrimination arising from Hubbell's prima facie case shifts the burden of production to the USW entities to articulate a legitimate, nondiscriminatory reason for abandoning the grievance process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The USW entities satisfy their burden of production by producing evidence that Hubbell was really suspended for insubordination, that Kearns had not been insubordinate, and that Watt abandoned the grievance process for that reason. (App. in Supp. of USW Defs.' Mot. for Summ. J., Tab A; Watt Dec. ¶¶ 35-43.) Because Hubbell's description of the events in question differed from that provided by Crabb (and from that allegedly depicted in the surveillance tape viewed by Watt), however, the matter is not amenable to resolution at the summary judgment stage. Hubbell, supra, at 423-29, 434-35. If Hubbell's testimony is believed (as it must be at this stage), a reasonable trier of fact could find World Kitchen's reason for the suspension and Watt's corresponding explanation for not proceeding with the grievance process to be "unworthy of credence." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). Hubbell is not required to "introduce additional, independent evidence of discrimination" to defeat the Union's motion for summary judgment.
In denying the Union's motion for reconsideration at this stage, the court does not suggest that Hubbell can hold the
For the foregoing reasons, the motion for reconsideration filed by the USW entities (Docket No. 89) will be denied. The court expresses no opinion concerning the factual issues that will ultimately be resolved by the trier of fact.