Marty Gilbert v. Country Music Association, Inc, et al

Filing

OPINION filed: We AFFIRM in part and reverse in part (reversing only the district court's disposition of the breach-of-duty claim against Local 46) and remand for further proceedings. Decision not for publication pursuant to local rule 206. Jeffrey S. Sutton, Circuit Judge, AUTHORING; Deborah L. Cook, Circuit Judge and J. Ronnie Greer, U.S. District Judge for the Eastern District of Tennessee.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0532n.06
No. 09-6398
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MARTY GILBERT,
Plaintiff-Appellant,
v.
COUNTRY MUSIC ASSOCIATION, INC.;
COUNTRY MUSIC TELEVISION, INC.;
MTVN DIRECT, INC.; INTERNATIONAL
ALLIANCE OF THEATRICAL STAGE
EM PLOYEES , M OVING P IC TURES
TECHNICIANS, ARTISTS AND ALLIED
CRAFTS OF THE UNITED STATES AND
CANADA; INTERNATIONAL ALLIANCE OF
THEATRICAL STAGE EMPLOYEES,
MOVING PICTURES TECHNICIANS,
ARTISTS AND ALLIED CRAFTS OF THE
UNITED STATES AND CANADA LOCAL 46,
Defendants-Appellees.

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Aug 02, 2011
LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE

Before: SUTTON and COOK, Circuit Judges; GREER, District Judge.*

SUTTON, Circuit Judge. After Marty Gilbert complained that a co-worker had threatened
him based on his sexual orientation, a union hiring hall refused to provide Gilbert with work. Gilbert
filed this lawsuit, alleging sex discrimination and breach of the union’s duty of fair representation.
The defendants, a collection of employers and Gilbert’s local and international union, filed motions
*

The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

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to dismiss, and the district court granted them. Although the relevant federal and state laws do not
prohibit sexual-orientation discrimination (requiring affirmance of most of the district court’s
decision), his breach-of-duty claim against the local union may proceed (requiring reversal in part).

I.

A theater professional, Gilbert organizes awards ceremonies such as the Country Music
Association (CMA) Awards and the “Stellar Awards.” He is a member of Nashville’s Local 46
chapter of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians,
Artists and Allied Crafts of the United States and Canada (IATSE). CMA, along with MTVN Direct
and Country Music Television (CMT), has “exclusive hiring hall agreements” with Local 46. R.5
¶ 17. Under these arrangements, a union refers members to various employers for jobs.

Through a referral from Local 46’s hiring hall, CMA hired Gilbert to work on the 2007 CMA
Awards. Gilbert is openly homosexual and, while working the show, a union worker named Milton
Jones called him a “faggot” and threatened to stab him. This was not an empty threat, as Jones was
facing criminal charges for “having stabbed several homosexuals” in Atlanta. Id. ¶ 21. After Gilbert
complained, Local 46 stopped referring Gilbert for jobs and changed its referral process to prevent
him from qualifying for other jobs. In 2008, Local 46 did not refer Gilbert for his previous job with
the CMA Awards, forcing Gilbert to accept “less distinguished and lower paying” freelance work
directly from CMA. Id. ¶ 31. After Gilbert had secured work at the 2009 Stellar Awards, the Local
46 president convinced the Awards’ organizers to withdraw their agreement with Gilbert. The union

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also sent an “unsolicited forged letter . . . purported to be sent from [a] third-party” to CMA, CMT
and MTVN describing Gilbert’s alleged “misconduct” at the 2008 CMA Awards. Id. ¶ 35.

When Gilbert complained about Local 46’s refusal to refer him for a job at the 2008 CMA
Awards, the union filed charges against him based on “events” that occurred at the 2008 awards
show. Id. ¶ 33. Gilbert denied the charges, claiming they were filed in retaliation for speaking out
about being harassed. The union found him guilty and suspended him for six months, causing him
to lose job opportunities at MTVN, CMT and CMA.

Gilbert filed a complaint in federal court against Local 46, IATSE, CMA, CMT and MTVN
alleging (1) “interference with employment opportunities,” (2) discrimination and retaliation under
the Tennessee Human Rights Act (THRA), (3) breach of the duty of fair representation and
(4) breach of a labor agreement. Gilbert did not raise any federal Title VII claims because he was
waiting for notice-to-sue letters from the EEOC.

The defendants filed motions to dismiss. Soon after, the EEOC letters arrived, and Gilbert
moved to amend his complaint to add Title VII claims.

The district court granted defendants’ motions to dismiss and appeared to deny Gilbert’s
request to amend his complaint. Gilbert appeals (1) the dismissal of his discrimination and
retaliation claims, and (2) the dismissal of his breach of duty-of-fair-representation claims against
IATSE and Local 46.

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II.

Title VII forbids employers and labor organizations from “discriminat[ing] against any
individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1), (c)(1). The THRA says roughly the same thing, see Tenn. Code Ann. § 4-21-401,
which is why Tennessee law treats THRA and Title VII claims the same, see Sybrandt v. Home
Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 2009). Under Title VII, “sexual orientation is not
a prohibited basis for discriminatory acts.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th
Cir. 2006). A claim premised on sexual-orientation discrimination thus does not state a claim upon
which relief may be granted.

Title VII, however, does prohibit discrimination “because of . . . sex,” a protection that in
some circumstances extends to “sex-stereotyping” claims. In Price Waterhouse v. Hopkins, an
employer passed over a female accountant for partnership in part because she was too “macho” and
not “feminine[]” enough. 490 U.S. 228, 235 (1989) (plurality opinion). This amounted to sex
discrimination, the Court concluded, because an employer that “acts on the basis of a belief that a
woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250.
An employer, in other words, discriminates “because of . . . sex” when it makes decisions based on
the “degree to which an individual conforms to traditional notions of what is appropriate for one’s
gender.” Vickers, 453 F.3d at 762. If an employee pleads “sufficient factual matter” to show
discrimination on the basis of sex stereotyping, he thus may survive a motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1948 (2009).
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Once before, this court addressed this “curious distinction,” Hamm v. Weyauwega Milk
Prods., Inc., 332 F.3d 1058, 1066 (7th Cir. 2003) (Posner, J., concurring), between sexualorientation and sex-stereotyping discrimination. In Vickers v. Fairfield Medical Center, a security
guard at a hospital was the victim of “frequent derogatory comments” by co-workers, who called him
a “fag” and “gay” and physically harassed him. 453 F.3d at 759. Vickers sued under a sexstereotyping theory, arguing that “in the eyes of his co-workers, his sexual practices, whether real
or perceived, did not conform to the traditionally masculine role. Rather, in his supposed sexual
practices, he behaved more like a woman.” Id. at 763. We rejected Vickers’s theory, holding that
a sex-stereotyping claim required that he show discrimination based on gender non-conforming
“behavior observed at work or affecting his job performance,” such as his “appearance or
mannerisms on the job.” Id. “[I]n Price Waterhouse,” we explained, that included the plaintiff’s
“manner of walking and talking at work, as well as her work attire and her hairstyle.” Id.; see Price
Waterhouse, 490 U.S. at 235 (plurality opinion). But Vickers alleged nothing of the sort, prompting
us to dismiss his suit because the charged conduct “is more properly viewed as harassment based on
Vickers’ perceived homosexuality, rather than based on gender non-conformity.” Vickers, 453 F.3d
at 763.

Gilbert’s claim fails for similar reasons. His complaint says that he is “an openly homosexual
male,” R.5 at ¶ 18, then adds the following: (1) Gilbert’s co-worker threatened to stab Gilbert and
“any other ‘faggot’ working with them” because Gilbert “and homosexual males did not conform
to [Jones’s] male stereotypes,” R.5 ¶ 19; (2) union officials were “aware that [Gilbert] was

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homosexual at the time” he reported Jones’s threats, R.5 ¶ 25, and acted against him on this basis;
and (3) at a union meeting where Jones advocated amending the union’s constitution and bylaws to
prohibit sexual-orientation discrimination, a fellow union member “loudly uttered bigoted comments
regarding [Gilbert]’s sexuality and insist[ed] that homosexual[s] not be permitted to disclose to
other[] union members that they are homosexual.” R.5 ¶ 28.

Gilbert’s allegations involve discrimination based on sexual orientation, nothing more. He
does not make a single allegation that anyone discriminated against him based on his “appearance
or mannerisms” or for his “gender non-conformity.” Vickers, 453 F.3d at 763. For all we know,
Gilbert fits every male “stereotype” save one—sexual orientation—and that does not suffice to
obtain relief under Title VII.

Gilbert raises up one assertion in his complaint as the answer to this problem. He alleges that
Jones threatened to stab him because “[Gilbert] and homosexual males did not conform to [Jones’s]
male stereotypes.” R.5 ¶ 19. But this is simply a “formulaic recitation” of the elements of a sexstereotyping cause of action and by itself “will not do.” Iqbal, 129 S. Ct. at 1949. Because the
conduct Gilbert opposed was not an “unlawful employment practice,” 42 U.S.C. § 2000e-3(a), his
retaliation claims must also fail. See Barrett v Whirlpool Corp., 556 F.3d 502, 520 (6th Cir. 2009);
see also Hamm, 332 F.3d at 1066 (claim of harassment on the basis of sexual orientation cannot give
rise to a Title VII retaliation claim).

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No doubt, the events Gilbert describes, if true, are at least in bad taste if not themselves
deserving of condemnation. But Gilbert cannot “bootstrap protection for sexual orientation into Title
VII” under the guise of a sex-stereotyping claim. Vickers, 453 F.3d at 764. Although many States
prohibit sexual-orientation discrimination, see, e.g., Colo. Rev. Stat. Ann. § 24-34-402; Mass. Gen.
Laws Ann. ch. 151B, § 4, federal law and Tennessee law do not.

III.

That leaves Gilbert’s duty-of-fair-representation claim against Local 46 and its parent
organization, IATSE. There is some ambiguity about how the district court treated this claim and
what precisely it thought was before it. The court apparently rejected his hybrid claim under the
LMRA (which Gilbert no longer pursues) but never addressed his duty-of-fair-representation claim
as an independent theory of relief. See Pratt v. UAW, Local 1435, 939 F.2d 385, 390 (6th Cir. 1991).
In view of the Rule 12(b)(6) stage of this case, we think the district court prematurely dismissed the
latter claim.

The duty of fair representation requires a union to “serve the interests of all members without
hostility or discrimination toward any, to exercise its discretion with complete good faith and
honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). The duty applies
to “all union activity,” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S 65, 67 (1991), including the
union’s operation of a hiring hall, see Breininger v. Sheet Metal Workers Int’l Ass’n Local Union

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No. 6, 493 U.S. 67, 87–88 (1989). A union violates its duty of fair representation if its actions are
“arbitrary, discriminatory, or in bad faith.” O’Neill, 499 U.S at 67.

Gilbert alleges that Local 46: (1) refused to refer him for jobs he had previously performed
and was otherwise qualified for, going so far as to change its usual referral process; (2) contacted
Stellar Awards and convinced it to cancel an agreement with Gilbert; (3) sent an “unsolicited forged
letter” to Gilbert’s employers complaining about Gilbert, R.5 ¶ 35; and (4) convicted him of baseless
membership charges, resulting in his suspension and inability to seek employment through the hiring
hall.

Taken together, Gilbert’s allegations state a claim that Local 46’s conduct at a minimum was
arbitrary or in bad faith. Most damaging is the allegation that Local 46 abused its hiring-hall
authority to undermine Gilbert’s work opportunities. “[T]here is no balance of power,” the Supreme
Court has recognized, in hiring halls because “the union has assumed the mantle of employer, [and]
the individual employee stands alone against a single entity: the joint union/employer.” Breininger,
493 U.S. at 89. Because a union “wield[s] additional power in a hiring hall” and an “improperly
functioning hiring hall” readily can lead to abuse, the Supreme Court has noted that the union’s
“responsibility to exercise that power fairly increases rather than decreases.” Id.

Consistent with these requirements, Gilbert says that Local 46 abused its power by
blacklisting Gilbert from future job opportunities despite his qualifications and experience and by
undermining his efforts to obtain other work. If true, this conduct falls “so far outside a wide range

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of reasonableness that it is wholly irrational,” and constitutes “arbitrary” conduct in violation of the
union’s duty of fair representation. Merritt v. Int’l Ass’n of Machinists & Aerospace Workers, 613
F.3d 609, 619 (6th Cir. 2010); cf. NLRB v. Int’l Bhd. of Elec. Workers, Local Union 16, 425 F.3d
1035, 1040 (7th Cir. 2005) (“A union is presumed to have breached its duty of fair representation
if . . . it refuses to refer a member who is eligible under [a hiring-hall] agreement.”); Plumbers &
Pipe Fitters Local Union No. 32 v. NLRB, 50 F.3d 29, 34 (D.C. Cir. 1995). Gilbert’s allegations that
Local 46 sent forged letters to Gilbert’s employers and found him guilty of baseless charges in
retaliation for his complaints about discrimination also suggest it acted in bad faith through “fraud,
dishonesty, and other intentionally misleading conduct.” Merritt, 613 F.3d at 619.

Although this claim survives at the pleading stage against Local 46, the same is not true with
respect to IATSE. Local 46 and IATSE are separate legal entities, and Gilbert’s complaint does not
offer a single fact suggesting IATSE had anything to do with Local 46’s misconduct, let alone that
IATSE did anything that was “arbitrary, discriminatory, or in bad faith.” Gilbert also has not
sufficiently pled an agency relationship between Local 46 and IATSE. Nothing in his complaint
suggests that IATSE “instigated, supported, ratified, or encouraged” Local 46’s actions, or that Local
46 acted “in accordance with their fundamental agreement of association.” Alexander v. Local 496,
Laborers’ Int’l Union of N. Am., 177 F.3d 394, 409 (6th Cir. 1999).

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IV.

For these reasons, we affirm in part and reverse in part (reversing only the district court’s
disposition of the breach-of-duty claim against Local 46) and remand for further proceedings.

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