Bailey v USF Holland

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............................................................................. ii

STATEMENT IN SUPPORT OF PETITION FOR REHEARING

OR REHEARING EN BANC.............................................................................. 1

BACKGROUND............................................................................................... 2

ARGUMENT FOR REHEARING OR REHEARING EN BANC

The panel effectively rewrote § 703(c)(1) of Title VII

by applying a legal standard that governs only harassment

claims against employers to this claim of union harassment................................. 6

CONCLUSION................................................................................................ 11

CERTIFICATE OF COMPLIANCE................................................................. 13

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ................... 1, 7, 8, 10

Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007)............... 1, 9, 10

Dowd v. United Steelworkers of America, Local No. 286,

253 F.3d 1093 (8th Cir. 2001) ................................................................... 1, 9

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ........................................... 6

Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073 (6th Cir. 1999)....... 7

Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) .................................. 7

Russello v. United States, 464 U.S. 16 (1983) ..................................................... 8

Smith v. Rock-Tenn Services, Inc., 813 F.3d 298 (6th Cir. 2016) .......................... 4

Stair v. Lehigh Valley Carpenters Local Union No. 600,

No. CIV. A. 91-1507, 1993 WL 235491 (E.D. Pa. Jul. 24, 1993),

aff’d o.b. 43 F.3d 1463 (3d Cir. 1993)................................................................. 9

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) ............................. 8

STATUTES

42 U.S.C. § 2000e-2(a)(1) [§ 703(a)(1)]................................................... 5, 6, 7, 9

42 U.S.C. § 2000e-2(c)(1) [[§ 703(c)(1)]................................................ 5, 6, 9, 10

COURT RULES

Fed. R. App. P. 29(b).......................................................................................... 1

Fed. R. App. P. 35(b).......................................................................................... 1

Fed. R. App. P. 35(b)(1)(A) ............................................................................... 1

Fed. R. App. P. 35(b)(1)(B) ............................................................................... 2

STATEMENT IN SUPPORT OF PETITION FOR

REHEARING OR REHEARING EN BANC

The EEOC urges this Court to grant the petition for rehearing or rehearing en banc because the panel majority applied an entirely incorrect legal standard to this Title VII race harassment case. Fed. R. App. P. 29(b), 35(b). Specifically, the majority rejected the plaintiff’s harassment claim against her union based on her failure to satisfy a legal standard that applies to harassment claims against employers. This ruling is at odds with the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 62-63 (2006), which rejected importing the standards applicable to the employer discrimination provision into other provisions of Title VII. Rehearing by the panel or by the full Court is necessary to correct this error. Fed. R. App. P. 35(b)(1)(A).

The panel’s reliance on the wrong standard also effectively created a circuit split on a legal issue the Court purported to avoid deciding. Both the First and Eighth Circuits have expressly recognized a cause of action under Title VII for harassment claims by union members against their union; no circuit has disagreed. See Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007); Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d 1093 (8th Cir. 2001). The panel majority effectively ruled to the contrary on this point by holding plaintiffs in hostile union environment cases to a standard that would require them to demonstrate an effect on the terms or conditions of their employment, which they could virtually never meet (nor should they have to). Panel rehearing or rehearing en banc is necessary to resolve this circuit conflict. Fed. R. App. P. 35(b)(1)(B).

BACKGROUND

Plaintiff Tanganeka Phillips, who is African American, worked for the MGM Grand Casino (MGM). District Court Record Number (R.) 34-2, PgID#303 (Phillips 11/13/2014 Deposition (Dep.). In 2001, she joined Local 7777 (Local), an affiliate of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW (UAW), and thereby automatically became a member of the UAW. Id. Soon thereafter, she became the Local union Chairperson, a position she held until resigning from MGM in September 2015. Id.

Phillips’s union duties required her to work alongside two white UAW employees whom the UAW assigned to assist the Local: Brian Johnson (in processing grievances) and David Kagels (with labor negotiations). Id. at PgID#303-04; R.39-6, PgID#917-18 (Phillips Aff.).

From mid-2012 through early 2014, Johnson and Kagels subjected Phillips to a racially hostile environment when she performed her union duties at the Local’s offices (a location separate from the Casino’s premises). The panel majority focused on Phillips’s description of five separate incidents:

· Johnson cursed at Phillips repeatedly during a May 2012 meeting that included Local member-at-large Dewight Braxton, and when Braxton finally told him to stop, Johnson referred to Braxton as Phillips’s “bodyguard” because he was “big and black” (PageID#895);

· During 2012-2013 contract negotiations, Kagels listed union representatives he wanted fired, all of whom are black (PageID#897);

· In spring 2013, Johnson stated the UAW needed to put a black on staff to calm things down (PageID#897);

· At a “3.5 step” meeting to discuss pending grievances in the spring/summer of 2013, Johnson separated the grievance files by race, suggesting he planned to advance only the white members’ grievances and dismiss the others (PageID#307-10); and

· In November or December 2013, Johnson said the “problem with the Union” was “too many blacks” in the union and on the Local board (PageID#919, 1217).

Slip opinion (op.) at 2-3, 7.

Phillips described physically threatening conduct as well, including a March 2013 meeting to discuss Local business when Johnson cursed Phillips and threw a file at her, and a November 2013 incident when Johnson tried to “come at” Phillips and had to be physically removed from her office. See appendix to dissent (op. at 11); R.39-2, PgID#894 (Phillips 11/13/2014 Dep. at 121-24).[1]

Phillips also attested that during this twenty-two-month period, Johnson was “always” cursing at her and made “so many racial remarks” to her. R.34-2, PageID#311-12 (Phillips Dep. at 129-34). She further observed Johnson “scream and yell” at black union members, call them “incompetent,” and treat them “in an aggressive hostile” manner, while treating whites respectfully. R.39-6, PgID#917-19 (Phillips Aff. ¶¶3-7, 21).

This misconduct continued despite complaints to the UAW. See op. at 12-13 (Appendix to dissent). In February 2014, for example, Phillips emailed UAW Region 1 Director Charles Hall that Johnson “lost control again” and “went into an angry rage yelling and screaming.” R.35-11, PgID#715 (2/25/2014 email). She stated “it [had] been 10 months” since she met with Hall to complain about Johnson’s behavior “and still the problems continue.” Id.[2]

The district court ruled that, considering these events “as a whole,” a jury could find “the defendants created a hostile work environment based on race.” R.47 (District Court Opinion and Order), PgID#1169. Quoting Smith v. Rock-Tenn Services, Inc., 813 F.3d 298, 310-11 (6th Cir. 2016), the court stated, “[w]hether the alleged conduct was harassment so severe or pervasive as to constitute a hostile work environment is ‘quintessentially a question of fact’” for a jury to decide. R.47, PgID#1169. The court further held, however, that a “labor union in its representational role” cannot be liable to a union member for creating a hostile work environment because Title VII limits liability for workplace harassment to “employers.” Id. at PgID#1169-72.

The panel majority agreed with the district court that the language in Title VII’s employer subsection, § 2000e-2(a)(1), prohibiting discrimination “with respect to … ‘terms, conditions, or privileges of employment’” provides the “statutory origin of Title VII hostile work environment claims.” Op. at 4. The majority recognized, on the other hand, that “applying the usual tools of statutory interpretation” to Title VII’s union subsection, § 2000e-2(c)(1), “might support a reading that Title VII prohibits unions from creating hostile work environments, just like it does for employers.” Id. at 5. Stating it was not deciding that question, id., the majority ruled that Phillips failed to create a factual dispute that she was subjected to a hostile work environment because the harassment she alleged was not—in the majority’s view—sufficiently severe or pervasive to affect the terms or conditions of her employment. Id. at 5-7. Judge Merritt, dissenting, believed that the “Jim Crow-like conduct of the union agents here” would permit a jury to find the union had created a hostile environment based on race. Id. at 8.

ARGUMENT FOR REHEARING OR REHEARING EN BANC

The panel effectively rewrote § 703(c)(1) of Title VII by applying a legal standard that governs only harassment claims against employers to this claim of union harassment.

Section 703(a) of Title VII makes it unlawful for employers to discriminate against any individual with respect to her “compensation, terms, conditions, or privileges of employment” on the basis of, inter alia, race. 42 U.S.C. § 2000e-2(a)(1). This prohibition encompasses employer liability for hostile work environments that an employer fails to prevent or remedy. Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).

Section 703(c) of Title VII makes it unlawful for a labor organization to exclude or expel from membership “or otherwise to discriminate against, any individual because of,” inter alia, race. 42 U.S.C. § 2000e-2(c)(1). In affirming summary judgment on the ground that the harassment that Phillips alleged was insufficiently hostile to be actionable, the panel majority purported to avoid deciding whether § 703(c)(1)’s more broadly-worded prohibition barring unions from “otherwise … discriminat[ing]” encompasses a union’s liability for failing to prevent or remedy a racially hostile union environment. But, in applying the wrong legal standard to its qualitative assessment of the hostile union environment, the majority essentially decided—adversely—the legal question it was purporting to avoid.

Title VII claims of workplace harassment must satisfy a threshold level of seriousness to be actionable. In the context of hostile environment claims against employers, the Supreme Court has explained that harassment is actionable when it is “so objectively offensive as to alter the ‘conditions’ of the victim’s employment …. [and create] an environment that a reasonable person would find hostile or abusive.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); see also op. at 5-6. The Oncale Court explained that this standard ensures “courts and juries do not mistake ordinary socializing in the workplace … for discriminatory ‘conditions of employment.’” 523 U.S. at 81.

Likewise, a claim against a union for harassment by its employees during union activities must also be based on conduct that satisfies some sufficient level of seriousness. But, as with all legal tests for establishing discrimination, the standard must fit the applicable statutory provision. Burlington N., 548 U.S. at 62-64. The majority ignored both the text of § 703(c)(1) and its purpose when it assessed the seriousness of Phillips’s harassment claim against the UAW based on the standard applicable to employers under § 703(a), which considers the impact of the harassment on the terms, conditions, or privileges of the plaintiff’s employment. See op. at 5 (focusing on the fourth element of the five-part test drawn from Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999)).

The panel majority’s reliance on such a standard here violated basic rules of statutory construction. As the Supreme Court has observed repeatedly with respect to Title VII, where Congress created linguistic distinctions between different parts of the statute, courts are to presume it was intentional. See, e.g., Burlington N., 548 U.S. at 62-63 (In construing sections 703 and 704, “the question is whether Congress intended its different words to make a legal difference. We normally presume that, where words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal citations and quotation marks omitted); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2530 (2013) (“In light of Congress’ special care in drawing so precise a statutory scheme” as Title VII, it would be “incorrect to infer that Congress meant anything other than what the text does say.”). Cf. Russello v. United States, 464 U.S. 16, 23 (1983) (declining to read different statutory terms in RICO as meaning the same because “Congress did not write the statute that way. We refrain from concluding here that the differing language in the two subsections has the same meaning in each.”).

The majority here improperly applied an employer-focused standard to address harassment by union officials that occurred at the Local’s offices, outside the casino premises, while Phillips performed union duties, not her casino job—harassment that, under the circumstances, could not and did not affect any term or condition of Phillips’s employment. The error, as Phillips’s claim illustrates, created a standard that plaintiffs alleging union harassment can virtually never satisfy: a member suing her union for failing to prevent and/or remedy a hostile union environment would have to establish in all cases that the harasser’s conduct altered the terms, conditions, or privileges of her employment. In so doing, the majority effectively ruled—adversely—on the issue it eschewed.

This implicit panel ruling conflicts with the explicit rulings of at least two other circuits: Dowd, 253 F.3d 1093, which the majority acknowledges, op. at 5, and Dixon, 504 F.3d 73. Before this Court parts company with the only two circuits that have directly addressed the question of union liability for union harassment, this Court should ensure it is applying a legal standard that comports with the statutory language in the applicable Title VII provision and does not blur the lines between § 703(c)(1) and § 703(a)(1).

Furthermore, this error has potentially significant repercussions. Congress surely did not envision that workers would have no recourse if, for example, a union allowed pornography to be displayed in the hiring hall or otherwise allowed its union environment to become so hostile to women or minorities that they would think twice about participating in union activities. See Stair v. Lehigh Valley Carpenters Local Union No. 600, No. CIV. A. 91-1507, 1993 WL 235491, at *18-21 (E.D. Pa. Jul. 24, 1993), aff’d o.b. 43 F.3d 1463 (3d Cir. 1993). Nor, as the First Circuit concluded in Dixon, does Title VII leave a union member without recourse if, during a union-sponsored outing to support a political candidate, the union member is sexually harassed to the point that she fears for her safety. Dixon, 504 F.3d at 78-79, 84-85. Congress’s purpose to protect individuals from all forms of discrimination by unions, as reflected in § 703(c)(1)’s language barring a union from “otherwise … discriminat[ing],” reinforces the conclusion that the standard for assessing the seriousness of union harassment must reflect its specific context. See Burlington N., 548 U.S. at 64 (observing that Title VII’s “purpose reinforces what [the statutory] language already indicates”).

The harassment Phillips alleges did not involve a hiring hall or a union-sponsored trip to support a political candidate, but it did involve grievance processing and collective bargaining agreement negotiations—two important union activities that fell within Phillips’s duties as the Local chairperson. Thus, the proper question here is not whether a jury could find Johnson and Kagels’s “racially offensive” and “condemnable” (op. at 7) harassment of Phillips sufficiently severe or pervasive to alter the terms of her employment, but whether it could well dissuade a reasonable person in Phillips’s position from continuing to participate in union activities and benefits. See EEOC Amicus Brf., Dkt. 19, at 19 n.4 (explaining union harassment standard as analogous to Title VII standard for actionable retaliation in Burlington Northern).

In sum, by characterizing the legal standard for assessing the sufficiency of union-based harassment as whether the conduct affected a term, condition, or privilege of employment, the panel majority effectively rewrote Title VII’s prohibition against unlawful employment practices by inserting language into Title VII’s union provision that appears only in the statute’s prohibitions against unlawful employer conduct. Correcting this error is critical to protect the rights of union members and to avoid confusion by district courts facing similar claims.

CONCLUSION

The EEOC urges this Court to grant panel rehearing or rehearing en banc to correct the panel’s legal error and clarify the appropriate standard for Title VII hostile union environment claims.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

/s/ Susan R. Oxford

_____________________________

SUSAN R. OXFORD

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, N.E.

Washington, D.C. 20507

(202) 663-4791

[1] The majority suggests these were “multiple characterizations of the same event,” op. at 3 n.2, but the record indicates these were all separate incidents.

[2] Johnson remained assigned to the Local until April 2015. The UAW finally removed him only after Phillips filed an EEOC charge and then this lawsuit. R.47, PgID#1163-64 (district court decision).