Timothy Pearson v. United Automobile Workers Int, et al

Filing

OPINION filed : the district court's order is VACATED and the case is REMANDED for proceedings consistent with this opinion, decision not for publication. Ralph B. Guy , Jr., Authoring Circuit Judge; Raymond M. Kethledge, Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

Case: 15-3139

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0697n.06
No. 15-3139
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
TIMOTHY L. PEARSON,

Oct 15, 2015
DEBORAH S. HUNT, Clerk

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Plaintiff-Appellant,
v.
UNITED AUTOMOBILE WORKERS
INTERNATIONAL UNION; UNITED
AUTHOMOBILE WORKERS
INTERNATIONAL UNION LOCAL NO.
863,

On Appeal from the United States
District Court for the Southern
District of Ohio

Defendants-Appellees.
_________________________________/
Before: GUY, KETHLEDGE, and STRANCH, Circuit Judges.
RALPH B, GUY, JR., Circuit Judge.

In this breach of fair representation

action, plaintiff Timothy Pearson appeals the District Court’s order granting summary
judgment to defendant UAW. We vacate and remand.
I.
Ford Motor Company terminated plaintiff.

Defendant filed a grievance on

plaintiff’s behalf, arguing that he was terminated without just cause. Ford arbitration

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manager John Wright attempted to reach a settlement with UAW representatives Frank
Keatts and Chris Crump prior to arbitration. Wright conveyed an offer of pre-retirement
leave to Keatts in April 2008, but Keatts said plaintiff was “not interested.” In August or
September 2008, Wright again extended the offer to Keatts or Crump, this time providing
a detailed accounting of the six-figure sum plaintiff stood to gain from the settlement.
Crump told Wright, “It was no go.” Plaintiff lost at arbitration and received only a small
monthly deferred benefit payment.
On May 14, 2012, during discovery in a related matter, Ford disclosed internal
emails to and from Wright regarding his April 2008 settlement offer and plaintiff’s
supposed rejection of it. Plaintiff first learned of the pre-retirement leave offer from this
disclosure. At a June 15, 2012 deposition, Wright discussed his attempts to settle,
including the August or September 2008 offer not mentioned in Ford’s disclosures.
On December 17, 2012, plaintiff filed the instant complaint. Defendant moved for
summary judgment, arguing, among other things, that plaintiff failed to bring his action
within the six-month statute of limitations.

The District Court agreed, and granted

defendant summary judgment in a written opinion.
II.
We review the District Court’s grant of summary judgment de novo. Geiger v.
Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is appropriate if the
movant “shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In reviewing this

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determination, we must “view the evidence and draw all reasonable inferences in favor of
the non-moving party.” Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013).
Unions have “the responsibility and duty of fair representation” of all employees
in a bargaining unit. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564 (1976)
(quoting Humphrey v. Moore, 375 U.S. 335, 342 (1964)). An employee may sue the
union for breach of the duty of fair representation. 29 U.S.C. § 185; United Parcel Serv.,
Inc. v. Mitchell, 451 U.S. 56, 62 (1981). An action for breach of fair representation must
be filed within six months of the alleged breach. 29 U.S.C. § 160(b); DelCostello v. Int’l
Bhd. of Teamsters, 462 U.S. 151, 154-155 (1983). The statute of limitations begins to
run “when the claimant discovers, or in the exercise of reasonable diligence should have
discovered, the acts constituting the alleged violation.” Adkins v. Int’l Union of Elec.,
Radio & Mach. Workers, 769 F.2d 330, 335 (6th Cir. 1985). Where the challenged
conduct “involves a continuing and allegedly improper practice that causes separate and
recurring injuries to plaintiffs, the action is deemed to be ‘in the nature of a continuing
trespass[,]’” and a separate cause of action accrues from each instance. Sevako v. Anchor
Motor Freight, Inc., 792 F.2d 570, 575 (6th Cir. 1986) (quoting Angulo v. The Levy Co.,
568 F. Supp. 1209, 1213 (N.D. Ill. Aug. 19, 1983), aff’d sub nom. Flores v. Levy Co., 757
F.2d 806 (7th Cir. 1985)). Only the alleged improper acts that occurred within six
months of filing the complaint are actionable. Id.

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III.
A. The First Offer
Plaintiff first contends that he lacked notice of the April 2008 offer until Wright’s
June 15, 2012 deposition. According to plaintiff, Ford’s May 14, 2012 disclosures
merely raised suspicions of wrongdoing. To the contrary, the information in Ford’s
disclosures sufficed to put a reasonable person on notice of the legally relevant facts
surrounding the April 2008 offer: Wright wrote that he was “trying to resolve th[e]
grievance with the Union” by offering pre-retirement leave; Wright’s draft letter to Keatts
at “UAW-National Ford Department” extended the offer; and Wright indicated that he
“offered to reinstate [plaintiff] so that he could apply for a pre-retirement leave but he
declined the offer.” This information, coupled with plaintiff’s assertion that he did not
receive the offer, was enough to put him on notice that union representatives failed to
convey it, potentially giving rise to a violation of their duty of fair representation. See
Adkins, 769 F.2d at 335. Plaintiff’s claim arising from defendant’s April 2008 alleged
breach thus accrued on May 14, 2012, and the District Court correctly found that his
action for this breach was untimely.
B. The Second Offer
Although the District Court acknowledged Wright’s August or September 2008
offer, it did not consider whether plaintiff’s claim arising from this alleged breach was
timely. Ford’s May 14, 2012 disclosures in no way put plaintiff on notice that Wright
again extended a pre-retirement leave offer to Keatts and Crump. Rather, plaintiff first

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discovered this separate offer during Wright’s June 15, 2012 deposition.

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Plaintiff

contends that defendant’s failure to convey the second offer constituted a continuing
violation giving rise to a distinct cause of action which accrued on June 15, 2012.
In Sevako, this Court considered employees’ allegation of a wrongful job bidding
procedure, and held that “each time the alleged wrongful bid procedure is implemented, a
new claimed violation of the collective bargaining agreement may occur[,]” thereby
causing a separate claim to accrue and an attendant six-month statute of limitations to
run. Sevako, 792 F.2d at 576. Other courts have found actions timely based on this
continuing violation theory where there was “a repetitive succession of events [some of
which occurred] within a period of six months prior to the filing of the charge.” Cone
Mills Corp. v. NLRB, 413 F.2d 445, 448 (4th Cir. 1969) (relying on “the fact that the
same request [for information regarding a proposed pension plan] was repeated from time
to time . . . within the period of six months prior to the charging date”).
Like the challenged conduct in Sevako and Cone Mills, defendant’s alleged
repeated failure to convey settlement offers to plaintiff constituted a continuing violation.
Although the injuries stemming from defendant’s alleged failures to convey were
apparently identical, they nonetheless arose from distinct breaches of its duty of fair
representation. Because plaintiff had not and could not have discovered defendant’s
alleged August or September 2008 breach until Wright’s deposition, plaintiff’s cause of
action arising from that breach accrued on June 15, 2012. Sevako, 792 F.2d at 575-576.
Plaintiff’s complaint, filed within six months of that date, was therefore timely.

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Defendant’s motion for summary judgment on the basis that Pearson failed to
exhaust his internal union remedies and that it is entitled to judgment as a matter of law
were not addressed below. We entrust those claims to the district court for resolution in
the first instance.
We accordingly vacate the District Court’s order and remand for proceedings
consistent with this opinion.
VACATED AND REMANDED.