Table of Authorities

Cases Page(s)

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ...................................................................... 12, 15

Alexander v. Local 496, Laborers’ Int’l Union of N. Am.,

177 F.3d 394 (6th Cir. 1999)............................................................ 16

Allen v. CSX Transp., Inc.,

325 F.3d 768 (6th Cir. 2003)............................................................ 12

Angel v. United Paperworkers Int’l Union (PACE) Local 1967,

221 F. App’x 393 (6th Cir. 2007)...................................................... 13

Bugg v. Int’l Union of Allied Indus. Workers of Am.,

Local 507 AFL-CIO,

674 F.2d 595 (7th Cir. 1982)............................................................... 6

Cantrell v. Int’l Bhd. of Elec. Workers, Local 2021,

32 F.3d 465 (10th Cir. 1994)............................................................ 13

EEOC v. Frank’s Nursery & Crafts, Inc.,

177 F.3d 448 (6th Cir. 1999)............................................................... 5

Emswiler v. CSX Transp., Inc.,

691 F.3d 782 (6th Cir. 2012)...................................................... 10, 11

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009)........................................................................... 15

Garity v. APWU Nat’l Labor Org.,

828 F.3d 848 (9th Cir. 2016)................................................ 12, 15, 16

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987)................................................................. 9, 11, 14

Green v. Am. Fed. of Teachers/Ill. Fed. of Teachers Local 604,

740 F.3d 1104 (7th Cir. 2014)................................................... passim

Greenslade v. Chi. Sun-Times, Inc.,

112 F.3d 853 (7th Cir. 1997)............................................................ 18

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976)........................................................................... 11

Humphrey v. Moore,

375 U.S. 335 (1964)........................................................................... 12

Int’l Bhd. Of Elec. Workers v. Foust,

442 U.S. 42 (1979)............................................................................. 14

Jones v. R.R. Donnelly & Sons Co.,

541 U.S. 369 (2004)........................................................................... 10

Kolstad v. Am. Dental Ass’n,

527 U.S. 526 (1999)..................................................................... 14, 23

Martinez v. Int’l Bhd. of Elec. Workers-IBEW Local Union No. 98,

352 F. App’x 737 (3d Cir. 2009)....................................................... 17

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)........................................................................... 16

McIntyre v. Longwood Cent. Sch. Dist.,

380 F. App’x 44 (2d Cir. 2010)......................................................... 19

Nitzsche v. Stein,

797 F. Supp. 595 (N.D. Ohio 1992).................................................. 22

NLRB v. Sw. Gen., Inc.,

137 S. Ct. 929 (2017)........................................................................... 9

Reed v. Int’l Union, United Auto., Aerospace & Agric. Implement

Workers of Am.,

569 F.3d 576 (6th Cir. 2009)............................................................ 16

Swanson v. UAW Int’l Union,

No. 14-12581, 2015 WL 5168579 (E.D. Mich. 2015)........................ 6

U.S. v. Henry,

819 F.3d 856 (6th Cir. 2017)............................................................ 24

Vaca v. Sipes,

386 U.S. 171 (1967)..................................................................... 10, 12

Wells v. Chrysler Grp., LLC,

559 F. App’x 512 (6th Cir. 2014)........................................... 6, 20 ,21

Wilson v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen

& Helpers of Am., AFL-CIO,

83 F.3d 747 (6th Cir. 1996).............................................................. 13

York v. Am. Tel. & Tel. Co.,

95 F.3d 948 (10th Cir. 1996)............................................................ 19

Young v. Local 1201 Firemen & Oilers Union,

419 F. App’x 235 (3d Cir. 2011)....................................................... 19

Statutes

29 U.S.C. §§ 621 et seq................................................................................ 15

42 U.S.C. § 1981a......................................................................................... 14

42 U.S.C. § 1981a(a).............................................................................. 23, 24

42 U.S.C. § 1981a(b)(1)................................................................................ 24

42 U.S.C. § 1981a(b)(2)................................................................................ 24

42 U.S.C. § 1981a(b)(3)................................................................................ 24

42 U.S.C. § 2000e-2(c)(1).............................................................. 8, 9, 10, 11

42 U.S.C. § 2000e-2(c)(2)............................................................................... 9

42 U.S.C. § 2000e-2(c)(3)............................................................................... 9

42 U.S.C. § 2000e-3........................................................................................ 9

Rules

Fed. R. App. P. 29(a)(2)................................................................................. 1

Regulations

29 C.F.R. § 1601.28........................................................................................ 5

Statement of Interest

The Equal Employment Opportunity Commission is charged by Congress with responsibility for enforcing federal prohibitions on employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). At issue in this appeal is whether Title VII discrimination claims against unions are subject to the requirements and limitations applicable to non-Title-VII-based claims that a union breached its duty of fair representation. Because of the importance of these issues to the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. Fed. R. App. P. 29(a)(2).

Statement of the Issue

Whether the district court erred in concluding that discrimination claims alleging a violation of 42 U.S.C. § 2000e-2(c) by a union are subject to the requirements and limitations applicable to a claim that a union violated its duty of fair representation.

Statement of the Case

A. Statement of Facts

The plaintiffs in this action are eleven Detroit firefighters who are represented by the Detroit Fire Fighters Association, Local 344, IAFF, AFL-CIO (“union”). Am. Compl., R.12, PageID#57. On June 20, 2012, the city notified the union of an impending reduction in force, which would result in the layoff of a number of firefighters. Letter, R.54-4, PageID#1402. To determine who would be laid off, the city relied on each firefighter’s total years of service as a city employee, regardless of the departments in which the firefighter had served. Letter, R.58-12, PageID#2088. On July 30, 2012, the city gave the union a list of a number of intended layoffs and other related actions. Email, R.57-11, PageID#2046-86. The list identified twenty-nine firefighters who would be laid off; the plaintiffs were not on that list. Email, R.57-11, PageID#2046-86.

The same day, the union asked the city instead to determine candidates for layoff based on departmental seniority within the fire department, rather than city seniority, as the union believed using departmental seniority was required under the collective bargaining agreement. Letter, R.58-12, PageID#2088. The union provided the city with a list of layoff candidates, based on departmental seniority, that identified the plaintiffs, among others, as candidates for layoff. Letter, R.58-12, PageID#2088. The union also filed a grievance over the layoffs. Grievance, R.58-14, PageID#2112-18.

In early August 2012, the city executed the layoff and removed twenty-seven firefighters from their jobs, including the plaintiffs. Layoff notices, R.58-18, PageID#2136-62. Subsequently, after seeking advice of counsel, the union learned that city seniority was in fact the correct method for determining layoff candidates. Seniority Opinion Letter, R.58-33, PageID#2321-23. By late September-early October, 2012, the union was arguing to the city that city seniority was the proper metric and that layoffs based on departmental seniority violated the CBA. Union meeting minutes, R.58-16, PageID#2123; Union letters, R.58-36, PageID#2333-42.

On October 29, 2012, the city recalled each of the plaintiffs to work as firefighters. Order, R.91, PageID#4193. Their layoff had lasted a total of eighty days. Order, R.91, PageID#4193. The city and the union settled the grievance over the layoffs, with the city agreeing to provide each plaintiff back pay, overtime pay, and medical expenses for the layoff period. Settlement, R.58-40, Page ID#2373-78.

After several plaintiffs filed charges of discrimination and one received a right-to-sue letter, the plaintiffs filed suit against the city and the union. In their complaint, the plaintiffs’ sole claim was that the city’s and the union’s conduct toward them in regard to the layoffs constituted race discrimination in violation of Title VII. Am. Compl., R.12, PageID#81.

On summary judgment, the union argued that to prevail in a Title VII suit against a union, the plaintiffs must establish that the union breached its duty of fair representation to them, and that the plaintiffs could not meet the requirements for establishing such a claim. Union’s Summ. J. Mem., R.56, PageID#1816-20. The plaintiffs responded that Title VII claims against unions are not subject to the requirements for establishing a claim that the union breached its duty of fair representation, and that in this case the evidence supported their Title VII claim. Pl.’s Summ. J. Resp. Mem., R.69, PageID#3328-30.

B. District Court Decision

The district court granted summary judgment to the city and the union. Order, R.91, PageID#4183-84. In the part of its opinion discussing the plaintiffs’ EEOC charges, the court stated that there are three circumstances under which the Commission issues right-to-sue letters: if the EEOC makes a determination of reasonable cause but is unable to obtain voluntary compliance and decides not to bring suit itself, “if it concludes there was no violation,” or if the claimant requests a right-to-sue letter after a certain amount of time has passed without a reasonable cause determination. Order, R.91, PageID#4198-99 (citing EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 455 (6th Cir. 1999); 29 C.F.R. § 1601.28).[1]

Turning to the claims against the union, the court stated that “a plaintiff must establish a breach of the duty of fair representation in order to proceed with a Title VII discrimination claim against his or her union.” Order, R.91, PageID#4210 (citing Wells v. Chrysler Grp., LLC, 559 F. App’x 512 (6th Cir. 2014) (unpubl.)). The court observed that, in evaluating Title VII claims against unions, district courts within the Sixth Circuit applied the Seventh Circuit’s requirements in Bugg v. International Union of Allied Industrial Workers of America, Local 507 AFL-CIO, 674 F.2d 595 (7th Cir. 1982), for establishing that a union discriminatorily breached its duty of fair representation: “1) that the employer committed a violation of the collective bargaining agreement with respect to the plaintiff; 2) that the union permitted that breach to go unrepaired, thus breaching its own duty of fair representation; and 3) that there was some indication that the union’s actions were motivated by racial animus.” Order, R.91, PageID#4210-11 (quoting Bugg, 674 F.2d at 598 n.5; citing Wells, 559 F. App’x at 514; Swanson v. UAW Int’l Union, No. 14-12581, 2015 WL 5168579, at *5 (E.D. Mich. 2015)).

According to the court the plaintiffs here neither presented a duty of fair representation claim against the union nor tried to explain how they could establish such a claim. Order, R.91, PageID#4210. Thus, the court concluded, the plaintiffs could not satisfy the second element in the Bugg test—that the union permitted the violation of the collective bargaining agreement to go unrepaired. Order at 29.

The court also rejected the plaintiffs’ Title VII-based requests for compensatory and punitive damages, again applying the standards governing duty of fair representation claims. Order, R.91, PageID#4212-13. The court stated that for purposes of a duty of fair representation claim, compensatory damages are only available upon a showing that the union engaged in “extreme and outrageous” conduct, and punitive damages are not recoverable as a matter of law. Order, R.91, PageID#4212-13.

Argument

Title VII discrimination claims alleging a violation of

42 U.S.C. § 2000e-2(c) by a union are not subject to the requirements and limitations applicable to a claim that a union violated its duty of fair representation.

A. To establish a discrimination claim against a union

under Title VII, a plaintiff is not required to satisfy the requirements for establishing a claim that a union discriminatorily breached its duty of fair representation.

The district court concluded that when a plaintiff sues a union under Title VII, he must satisfy an additional burden to prevail: he must establish that the union violated its duty of fair representation. Order, R.91, PageID#4210-11. In so ruling, however, the court failed to account for the overwhelming body of authority—both statutory and case law—that compels the contrary conclusion. Simply put, the standards governing duty of fair representation claims do not govern Title VII discrimination claims against a union.

In § 2000e-2(c) of Title VII, Congress established a statutory scheme prohibiting a broad array of discriminatory conduct by unions. The statute makes it unlawful for a labor organization to “exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(c)(1). The statute further makes it unlawful for a union to “limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin.” Id. § 2000e-2(c)(2). In addition, the statute prohibits unions from “caus[ing] or attempt[ing] to cause an employer to discriminate against an individual in violation of this section.” Id. § 2000e-2(c)(2)-(3); see also 42 U.S.C. § 2000e-3 (prohibiting additional forms of discriminatory conduct by both employers and unions).

Notably, in drafting § 2000e-2(c), Congress defined discrimination by unions broadly to encompass a union’s discriminatory conduct toward any individual—not just union members or members of a particular bargaining unit. Cf. NLRB v. Sw. Gen., Inc., 137 S. Ct. 929, 939 (2017) (recognizing Congress’ use of term “person,” rather than a narrower but “readily available alternative” term, as indicating broad statutory coverage). Moreover, and of particular importance here, Title VII does not limit prohibited discriminatory actions to those involving the terms of a collective bargaining agreement or to the breach of any particular union obligation. See 42 U.S.C. §§ 2000e-2(c)(1)-(3), 2000e-3; Goodman v. Lukens Steel Co., 482 U.S. 656, 667 (1987) (emphasizing that Title VII makes it unlawful for unions to “exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin” (quoting 42 U.S.C. § 2000e-2(c)(1)) (emphasis added by court)), abrogated on other grounds by Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004).

In contrast, the cause of action against a union for violating its duty of fair representation is a distinct protection, narrower than Title VII in its scope of coverage, with different substantive requirements and more limited remedies. The duty of fair representation doctrine has its origins in the Supreme Court and the common law. See Vaca v. Sipes, 386 U.S. 171, 181 (1967). “Under the doctrine of fair representation, the union, as an exclusive agent of the employees, is obliged to ‘serve the interests of all its members without hostility or discrimination toward any, to exercise discretion with complete good faith and honesty, and to avoid arbitrary conduct.’” Emswiler v. CSX Transp., Inc., 691 F.3d 782, 793 (6th Cir. 2012) (quoting Vaca, 386 U.S. at 177). This doctrine “has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca, 386 U.S. at 182. “To prevail on a claim for breach of duty of fair representation, [the plaintiff] must show that (1) the action taken by the [union] was contrary to the CBA; and (2) that the action was dishonest, in bad faith, or discriminatory.” Emswiler, 691 F.3d at 793 (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976)).

While the duty of fair representation doctrine complements the protection against union discrimination Congress provided in Title VII, a duty of fair representation claim is subject to unique burdens and limitations that do not apply to claims under § 2000e-2(c). First, courts limit duty of fair representation claims to union conduct that contravenes the collective bargaining agreement. See Emswiler, 691 F.3d at 793 (recognizing that to establish a duty of fair representation claim, the plaintiff must show that “the action taken by the [union] was contrary to the CBA”) (citing Hines, 424 U.S. at 570-71). This is necessarily a narrower category of discriminatory conduct by unions than is covered by Title VII, which contains no such limitation. See, e.g., Goodman, 482 U.S. at 667 (emphasizing the breadth of union conduct subject to Title VII protection against discrimination by unions as to include “exclud[ing] or to expel from its membership, or otherwise to discriminate against, any individual” (quoting 42 U.S.C. § 2000e-2(c)(1) (emphasis added by court)).

The duty of fair representation is also limited to protecting bargaining unit members only, unlike Title VII’s protection of “any individual” from discrimination by unions. Vaca, 386 U.S. at 190 (“A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”); Allen v. CSX Transp., Inc., 325 F.3d 768, 772 (6th Cir. 2003) (observing that a union’s duty of fair representation does not extend to non-members of the bargaining unit).

In addition, courts have indicated that a more rigorous standard of proof applies to duty of fair representation claims than to Title VII claims against a union. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 58 n.19 (1974) (observing that, since “a breach of the union’s duty of fair representation may prove difficult to establish,” “it is noteworthy that Congress thought it necessary to afford the protections of Title VII against unions as well as employers”) (citing 42 U.S.C. § 2000e-2(c); Vaca, 386 U.S. 171; Humphrey v. Moore, 375 U.S. 335, 342, 348-51 (1964)); cf. Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 864 (9th Cir. 2016) (observing that the “plaintiff-friendly pleading standards” under Title VII “make clear that the free hand unions have in other labor matters does not extend to discrimination suits. . . . [A] plaintiff may have an easier path to proving a Title VII . . . claim when she can also show that the union has violated its duty of fair representation. . . . [T]he converse is not necessarily true: A plaintiff may still have a Title VII . . . claim even if she can’t prove a violation of the labor laws.”).

The availability of damages also substantially differs under each type of claim. Courts have recognized that in a duty of fair representation suit, recovery of compensatory damages for injuries such as emotional distress is available “only in exceptional circumstances” and requires an additional showing that the union’s conduct was both unlawful and “extreme and outrageous.” Cantrell v. Int’l Bhd. of Elec. Workers, Local 2021, 32 F.3d 465, 468-69 (10th Cir. 1994); see also Angel v. United Paperworkers Int’l Union (PACE) Local 1967, 221 F. App’x 393, 402 (6th Cir. 2007) (unpubl.) (citing Cantrell as support for the conclusion that “[t]he Union’s conduct in this case is not sufficiently exceptional or extreme to merit damages for emotional distress”). As for punitive damages, this Court has held that “punitive damages are not available against a union for breach of the duty of fair representation.” Wilson v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 83 F.3d 747, 754 (6th Cir. 1996) (citing Int’l Bhd. Of Elec. Workers v. Foust, 442 U.S. 42, 52 (1979)).

These limited remedies stand in stark contrast to those available for discrimination claims under Title VII. With the 1991 amendments to Title VII, Congress expressly provided for recovery of compensatory and punitive damages in suits against unions under § 2000e-2(c). 42 U.S.C. § 1981a; see generally Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999) (discussing available damages under Title VII, with particular focus on punitive damages). In so doing, Congress did not limit the availability of such damages to “exceptional circumstances” of “extreme and outrageous” conduct. See generally 42 U.S.C. § 1981a; Kolstad, 527 U.S. 526.

Because of these differences, the Supreme Court and the appellate courts around the country have long treated Title VII and duty of fair representation claims as distinct causes of action, each with its own particular requirements for establishing a violation. See, e.g., Goodman, 482 U.S. at 667 (in upholding Third Circuit’s affirmance of jury finding of union discrimination under Title VII, noting that court of appeals did not affirm based on a finding of a duty of fair representation violation, but because “it held that the Unions had violated [§ 2000e-2]”); Garity, 828 F.3d at 858, 864 (stating that “nothing in Title VII suggests that union members must demonstrate a breach of the union’s contractual duty to provide fair representation before stating a claim for racial, religious, or gender discrimination under Title VII,” and “[a] plaintiff may still have a Title VII . . . claim even if she can’t prove a violation of the labor laws.”); Green v. Am. Fed. of Teachers/Ill. Fed. of Teachers Local 604, 740 F.3d 1104, 1105-07 (7th Cir. 2014) (holding that establishing a Title VII discrimination claim against a union does not require showing a violation of the duty of fair representation). Cf. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (recognizing, in the analogous context of discrimination claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., that such discrimination claims exist as remedies “in addition” to a duty of fair representation claim); Gardner-Denver, 415 U.S. at 48-49 (recognizing in Title VII employment discrimination suit that “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination,” and “the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. . . . Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination”).

Moreover, both in this Court and elsewhere, a plaintiff may establish a union’s violation of § 2000e-2(c) by resort to the same well-established methods of proof that have long been available in Title VII suits against employers. See, e.g., Reed v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 569 F.3d 576, 579-82 (6th Cir. 2009) (analyzing Title VII religious accommodation claim against union under same framework applicable in suits against employers); Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 402-07 (6th Cir. 1999) (analyzing Title VII disparate treatment and disparate impact race discrimination claims against union under frameworks applicable in suits against employers); Green, 740 F.3d at 1106-07 (recognizing applicability of proof framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a Title VII suit against an employer, to Title VII claims against unions); see also Garity, 828 F.3d at 861-64 (adopting analysis of Green); Martinez v. Int’l Bhd. of Elec. Workers-IBEW Local Union No. 98, 352 F. App’x 737, 740 (3d Cir. 2009) (applying McDonnell Douglas framework to Title VII claim against union).

In light of the foregoing authority, the district court was incorrect to conclude that a plaintiff in a Title VII action against a union must satisfy the requirements for, and is subject to the limitations of, a duty of fair representation claim. In ruling otherwise here, the district court relied principally on two authorities: the Seventh Circuit’s decision in Bugg and this Court’s unpublished decision in Wells. See Order, R.91, PageID#4210-11. However, neither Bugg nor Wells compels the conclusion the district court reached.

As to Bugg, the Seventh Circuit has explicitly repudiated that decision’s applicability to Title VII suits against unions. That court of appeals has now held that the duty of fair representation requirements discussed in Bugg (and relied upon in Wells and by the district court here) play no role in a Title VII claim against a union. See Green, 740 F.3d at 1106.

In Green, the Seventh Circuit addressed the district court’s conclusion on summary judgment that “a union cannot be liable under Title VII unless it first violates a duty created by statute or contract,” and that since the plaintiff “fail[ed] to meet his prima facie burden to establish that the Union breached the CBA or owed a duty of fair representation to him, the Court need not address whether the Union had any discriminatory animus.” 740 F.3d at 1105. The court of appeals disagreed, stating that “[n]either § 2000e–2(c) nor § 2000e–3(a) makes anything turn on the existence of a statutory or contractual duty violated by the act said to be discriminatory,” and “[n]othing in the text or genesis of Title VII suggests that claims against labor organizations should be treated differently.” Id. According to the Green court, a contrary approach would render Title VII claims of discrimination against unions “either unavailing or unnecessary.” Id. at 1106.

The Seventh Circuit observed that the district court had relied on dictum in Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 866 (7th Cir. 1997), when it applied the Bugg factors to a Title VII claim against a union. Green, 740 F.3d at 1106. Criticizing that dictum in Greenslade as having “conflat[ed] Title VII with the elements of a hybrid breach-of-contract/duty-of-fair-representation claim against an employer and union under 29 U.S.C. § 185,” Green concluded that “[t]his approach does not bear any evident relation to Title VII, and we now withdraw the language.” Id.

The Seventh Circuit further explained that “[w]hen the Supreme Court established the elements of a prima facie case in [McDonnell Douglas], it did not include any element that depended on breaking a contract. . . . [W]e . . . are not authorized to add to that framework in a way that causes Title VII as administered to include elements missing from Title VII as enacted.” Id. at 1106-07. Accordingly, it concluded, “[a] claim against a labor organization under § 2000e-2(c)(1) or § 2000e-3(a) does not depend on showing that either the employer or the union violated any state statute or contract. Such a requirement cannot properly be added as part of the prima facie case.”[2] Id. at 1107. In light of the Seventh Circuit’s repudiation of the application of Bugg to Title VII suits against unions, the district court’s reliance on Bugg for that premise cannot stand.

Nor does this Court’s unpublished decision in Wells furnish any meaningful support for the district court’s decision. In Wells, this Court addressed a claim that the plaintiff’s union violated Title VII when it failed to represent her because of her race and sex. Wells, 559 F. App’x at 513-15. The Court observed that “district courts in this circuit—following the Seventh Circuit’s test in Bugg . . . —have required Title VII plaintiffs to prove that a union breached its duty of fair representation.” Wells, 559 F. App’x at 514 (citations omitted). The Court concluded that “a claim that the duty of fair representation was breached on account of discrimination and a claim of discrimination in failing to fairly represent the employee are essentially the same,” and that the union’s alleged conduct would “be both discrimination and a violation of the duty of fair representation—the difference here is naught.” Id.

In reaching its conclusion, the panel in Wells did not explore in any depth the propriety of applying the duty of fair representation requirements to a Title VII suit, or the authority recognizing the distinctions between each type of claim. See Wells, 559 F. App’x at 513-15. Instead, Wells equated these two distinct legal claims based on its observation that “district courts in this circuit” have followed Bugg, and on a single citation to an out-of-circuit district court case. Id. at 514. However, as discussed previously, the published decisions of this Court, the Supreme Court, and other courts of appeals have long treated Title VII and duty of fair representation discrimination claims against unions as distinct causes of action with distinct methods of proof and remedies. See supra, at 8-17. Wells also failed to account for the Seventh Circuit’s rejection in Green of Bugg’s application to Title VII union suits.[3] See Wells, 559 F. App’x at 513-15.

Accordingly, the Commission respectfully requests that this Court revisit the issue of the inapplicability of the duty of fair representation doctrine to statutory Title VII claims. While these two types of claims are and have always been distinct, the Green court’s repudiation of Bugg’s applicability to Title VII cases further undermines any basis for treating these causes of action as indistinguishable.

B. The available remedies in a Title VII claim against a union are not limited to the remedies available in a duty of fair representation claim.

In addressing the plaintiffs’ argument for compensatory and punitive damages, the district court only considered the remedies available in a duty of fair representation claim. Order, R.91, PageID#4212-13. The court then concluded that the plaintiffs could not recover compensatory damages absent a showing of “extreme and outrageous” conduct by the union, and that punitive damages are never available as a matter of law. Order, R.91, PageID#4212-13.

In reaching this conclusion, the district court made no mention of Title VII’s damages provision, nor of any other authority addressing the damages available under Title VII. Instead, the court relied solely on the union’s argument in its brief, which itself cited only a single district court decision that did not address the availability of damages under Title VII. See Order, R.91, PageID#4212 (citing Union Summ. J. Br. at 22 (citing Nitzsche v. Stein, 797 F. Supp. 595, 599 (N.D. Ohio 1992))); see also Nitzsche, 797 F. Supp. at 599 (addressing damages available in duty of fair representation action; making no mention of damages available under Title VII). However, both the statute and other controlling authority undermine the district court’s conclusion.

With its 1991 amendment of Title VII, Congress provided compensatory and punitive damages as available remedies for violations of § 2000e-2(c). See 42 U.S.C. § 1981a(a) (providing for recovery of compensatory and punitive damages “against a respondent who engaged in unlawful intentional discrimination . . . prohibited under section 703, 704, or 717 of the act (42 U.S.C. 2000e-2 or 2000e-3)”). As the Supreme Court recognized in Kolstad, in § 1981a “Congress plainly sought to impose two standards of liability—one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.” 527 U.S. at 534. Thus, while both compensatory and punitive damage awards require a showing of intentional discrimination, Kolstad, 527 U.S. at 534, punitive damage awards additionally require a showing that the violation was committed “with malice or reckless indifference to the federally protected rights of an aggrieved individual,” 42 U.S.C. § 1981a(b)(1). These are the only limitations on the ability of individuals to receive compensatory and punitive damages under Title VII.[4]

When interpreting the meaning of a statute, “‘[t]he language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear.’” U.S. v. Henry, 819 F.3d 856, 870 (6th Cir. 2017) (citation omitted). The plain language of Title VII’s remedial provision shows that Congress did not limit the availability of compensatory damages to cases of “extreme and outrageous” conduct by the union, as the district court did here, and that it made punitive damages available in appropriate cases. See 42 U.S.C. § 1981a(a); Order, R.91, PageID#4212-13.

Conclusion

The Commission requests that this Court hold that Title VII discrimination claims against unions are not subject to the legal standards applicable to claims that a union violated its duty of fair representation.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

/s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

E-mail: James.Tucker@EEOC.gov

Attorneys for amicus curiae

Equal Employment

Opportunity Commission

[1] The court’s characterization here is both incorrect and unduly narrow. For example, the Commission also issues such letters when, “[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes.” See EEOC Form 161 (Dismissal and Notice of Rights), attached in Addendum at A-1. Such a finding does not mean the agency has found that “no violation” has occurred. See id. (“This does not certify that the respondent is in compliance with the statutes.”).

[2] The Seventh Circuit’s rejection of Bugg’s requirements for establishing a breach of the duty of fair representation as elements of a Title VII claim is consistent with how other courts of appeals have analyzed this question. See supra, at 15-17. While some other courts have applied the Bugg factors to Title VII claims against unions, those courts have done so without discussion or explanation as to the propriety of this approach. See, e.g., Young v. Local 1201 Firemen & Oilers Union, 419 F. App’x 235, 240-41 (3d Cir. 2011) (citing York v. Am. Tel. & Tel. Co., 95 F.3d 948, 955-56 (10th Cir. 1996), which itself relies on the Bugg duty of fair representation factors without providing analysis or discussion as to their applicability in a Title VII claim); McIntyre v. Longwood Cent. Sch. Dist., 380 F. App’x 44, 49 (2d Cir. 2010) (without analysis or explanation, requiring plaintiff to satisfy Bugg factors to establish that the union violated Title VII).

[3] Green was decided on January 23, 2014, and Wells was decided approximately four months later, on May 15, 2014. While Green was decided after the briefing had concluded in Wells, there is no indication from this Court’s docket in Wells that the parties brought Green to the Court’s attention before it issued its decision in Wells. See generally docket in Princess Wells v. Chrysler Group LLC, et al., No. 13-3822 (6th Cir.).

[4] Title VII does contain other limitations on the amounts of compensatory and punitive damages that may be recovered (see 42 U.S.C. § 1981a(b)(2)-(3)), but these are the sole provisions pertaining to the general availability of these types of damages.