Carstarphen v. United Steelworkers, Local No. 1421 et al
Filing
76
ORDER granting 61 Motion for Summary Judgment; granting 63 Motion for Summary Judgment. Signed by Senior Judge Charles R. Butler, Jr on 9/21/2015. copies to parties. (sdb)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
DARRYL
W.
CARSTARPHEN,
Plaintiff,
v.
KIMBERLY-‐CLARK
CORP.
and
UNITED
STEELWORKERS
LOCAL
NO.
1421,
Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER
CIVIL
ACTION
NO.
14-‐00162-‐CB-‐C
This
matter
is
before
the
Court
on
motions
for
summary
judgment
filed
by
the
Defendants.
After
considering
the
motions
(Docs.
61
&
63)
and
supporting
briefs
(Docs.
62
&
64),
Plaintiff’s
response
(Doc.
72),
and
Defendants’
replies
(Docs.
73
&
74),
the
Court
finds
that
the
motions
are
due
to
be
granted.
Facts1
The
Parties
Plaintiff
Darryl
Carstarphen,
an
African-‐American
male,
was
employed
by
Defendant
Kimberly-‐Clark
Corporation
(the
Company)
at
its
Mobile,
Alabama
paper
mill
from
1996
until
his
employment
was
terminated
in
2013.
The
mill’s
workers
are
represented
by
two
separate
locals
of
the
United
Steelworkers
(USW).
Local
1
The
facts,
and
all
inferences
from
them,
are
set
forth
in
the
light
most
favorable
to
the
Plaintiff.
See
Allen
v.
Tyson
Food,
Inc.,
121
F.3d
642,
646
(11th
Cir.
1997)
(facts
and
all
justifiable
inferences
must
be
viewed
in
favor
of
nonmoving
party).
Below,
citations
are
provided
for
facts
in
dispute
and
direct
quotations
but
not
for
undisputed
facts.
1421
represents
the
bargaining
unit
within
the
maintenance,
paper
mill,
fiber,
and
storeroom
departments.
Local
1575
represents
the
bargaining
unit
within
the
distribution
center/warehouse
and
the
converting,
material
flow,
and
exporting
departments.
Both
locals
were
governed
by
the
same
Collective
Bargaining
Agreement
(CBA)
during
the
relevant
time
period.
Carstarphen,
who
had
been
a
member
of
both
Locals
during
his
employment
at
Kimberly-‐Clark,
was
a
member
of
Local
1421
when
his
employment
was
terminated.
Work
History
Prior
to
2010,
Carstarphen
worked
for
several
years
in
the
converting
department.
In
2010,
he
transferred
to
the
dry
fiber
department
where
he
worked
a
little
over
a
year
before
being
transferred
back
to
converting
due
to
poor
performance.
In
the
converting
department,
employees
were
expected
to
master
certain
tasks,
which
were
documented
in
a
book,
in
order
to
be
certified
as
a
Level
II
operator
and
pay
grade.
In
October
2011,
because
Carstarphen
was
falling
behind
on
his
Level
II
book
Patrice
Lemonde,
the
mill’s
Human
Resources
manager,
Carstarphen’s
supervisor,
and
a
union
representative
met
with
Carstarphen.
The
discussion
at
that
meeting
centered
around
Carstarphen’s
failure
to
make
sufficient
progress
on
his
book
as
well
as
his
overall
performance.
Within
the
past
twelve
months,
Carstarphen
had
received
an
oral
reprimand
for
poor
performance
and
a
three-‐day
suspension
for
a
safety
violation
for
failing
to
lock
out
equipment
he
was
working
on.
At
the
meeting,
Carstarphen
commented
that
he
had
left
his
lock
(necessary
to
lock
out
equipment)
in
the
fiber
department
when
he
transferred,
leading
the
company
to
believe
that
he
had
not
locked
out
equipment
at
all
during
2
the
three
months
since
his
transfer.
The
company
considered
this
a
major
safety
violation
and
decided
to
terminate
Carstarphen’s
employment.
Ultimately,
Carstarphen
was
not
terminated
for
this
violation.
Local
No
1575,
which
represented
Carstarphen
at
the
time,
filed
a
grievance
on
his
behalf.
The
company
and
the
union
reached
a
settlement.
The
parties
entered
into
a
last
chance
agreement.
Kimberly-‐Clark
agreed
not
terminate
Carstarphen’s
employment
under
the
following
conditions:
(1)
Carstarphen
was
required
to
complete
certain
Level
II
proficiencies
by
April
1,
2012;
(2)
Carstarphen
received
a
16-‐day
suspension;
and
(3)
“any
future
violation
of
company
rules
or
unacceptable/inappropriate
behavior
or
performance”
would
result
in
termination
of
Carstarphen’s
employment.
(Pl.’s
Dep.
vol.
I
Ex.
13,
Kimberly-‐Clark
Mot.
Summ.
J.
Ex.
2,
Doc.
62-‐2.)
Carstarphen
did
not
sign
this
agreement,
but
it
was
read
to
him.
In
2013,
Carstarphen
inquired
about
a
transfer
to
“the
broke
center,”
where
waste
paper
is
“repulped”
for
use
in
paper
production.
Castarphen
requested
the
transfer
even
though
he
had
completed
his
Level
II
book
and
the
broke
center
job
was
a
lower-‐paying
Level
I
job.
Eventually,
Lemonde,
the
HR
manager,
allowed
the
transfer
and
arranged
for
Carstarphen
to
keep
his
Level
II
pay.
At
that
time,
Carstarphen
was
not
meeting
expectations
in
the
converting
department,
and
Lemonde
hoped
to
place
Carstarphen
in
a
position
where
he
could
succeed.
The
transfer
became
effective
April
21,
2013.
Due
to
the
transfer,
Carstarphen
once
again
became
a
member
of
Local
1421.
In
the
broke
center,
Carstarphen’s
supervisor
was
Rick
Lewis,
who
had
worked
with
Carstarphen
in
the
converting
3
department.
Lewis
was
familiar
with
Castarphen’s
work
history
and
met
with
him
to
set
clear
performance
expectations.
Coworker’s
Sexually-‐Charged
Conduct
&
Statements
Lewis
assigned
Mack
McInnis,
an
experienced
trainer,
to
train
Carstarphen.
Almost
immediately,
McInnis
began
using
vulgar,
offensive
sexually
explicit
language
to
and
in
front
of
Carstarphen.
McInnis
“always
talk[ed]
about
sex
the
whole
time,
his
whole
conversation.
.
.
.
[H]is
whole
conversation
was
about
sex.
.
.
[a]bout
sex
with
men.”
(Pl.’s
Dep.
vol.
I
97,
Kimberly-‐Clark
Mot.
Summ.
J.
Ex.
1,
Doc.
62-‐1.)
In
one
conversation,
McInnis
told
Carstarphen
that
McInnis’s
ex-‐wife
said
in
divorce
papers
that
McInnis
was
gay.
(Id.
110.)
Carstarphen
testified
that
it
would
take
“a
book”
to
write
every
statement
of
a
sexual
nature
that
McInnis
made.2
(Id.
106.)
Carstarphen
went
to
Lewis,
his
supervisor,
about
two
weeks
after
he
started
in
the
converting
department
and
asked
him
to
talk
to
McInnis
because
“he
used
vulgar
language,
profanity
[and
was]
always
talking
about
gay
things,
gay
stuff[.]”
(Id.
107.)
At
this
point,
Carstarphen
did
not
go
into
detail
about
the
specifics
of
McInnis’s
behavior
or
statements.
Lewis
responded
to
Carstarphen’s
complaint
by
2
Some
examples:
Once
McInnis
said
that
“back
in
the
day
.
.
.
when
they
work
on
the
paper
machine
on
the
hot
side,
it
was
real
hot.
When
they
get
done,
they
go
to
the
cool
rooms
and
they’ll
take
off
their
shirts
and
pull
up
their
pants
and
the
mens
(sic)
in
there
will
rub
each
other,
just
rub
on
each
other.”
(Pl.’s
Dep.
98)..
McInnis
also
said
that
“when
a
man
got
married
[McInnis
and
others
would]
hold
him
down
and
pull
[the
victim’s]
willie
whacker
out
and
paint
it
blue.”
(Id.)
On
one
occasion
McInnis
said
to
Carstarphen
that
“he
was
tired
of
jacking
off
with
his
right
hand.”
(Id.
95.)
In
Carstarphen’s
presence,
McInnis
made
several
remarks
to
the
a
coworker
about
wanting
to
hold
that
coworker,
hug
him,
get
into
bed
with
him.”
(Id.
99.)
In
front
of
Carstarphen,
McInnis
asked
the
same
coworker
“to
lean
over
the
desk
so
he
could
stick
his
____
in
his
_______.”
(Id.
96.)
On
another
occasion,
McInnis
“was
humping
the
door
frame
as
if
he
was
having
sex.”
(Id.
97.)
4
suggesting
that
he
take
his
break
in
a
different
area.
Carstarphen
explained
that
the
offensive
conduct
was
not
happening
on
break
but
in
the
work
area.
Lewis
just
“brushed
it
off,
.
.
.
like
he
didn’t
really
want
to
hear
it.”
(Id.
119.)
Carstarphen
discussed
the
issue
again
at
a
sixty-‐day
progress
review
meting
with
Lewis
and
Ricky
Byrd,
the
union
shop
steward.
At
that
time,
Carstarphen
told
Lewis
how
McInnis
had
been
carrying
on
and
specifically
told
him
that
McInnis
had
“asked
Ricky
McGhee
to
lean
over
the
desk
.
.
.
so
he
could
stick
his
____
in
his
______.”3
(Id.
139.)4
Carstarphen
asked
to
be
moved
to
another
shift,
and
Lewis
agreed.
Quality
Defect
Leads
to
Carstarphen’s
Termination
Carstarphen
was
reassigned
to
C
shift
where
his
supervisor
was
Calvin
Crosby.
On
July
7,
2013,
his
first
day
on
C
shift,
a
problem
occurred
with
a
batch
of
pulp
sent
from
the
broke
center
to
the
tissue
manufacturing
department.
The
result
was
a
quality
defect
known
as
“broke
spots”
causing
the
rejection
of
an
entire
batch
of
product.
When
fiber
in
the
pulp
is
not
sufficient
broken
down,
chunks
of
fiber
show
up
in
the
paper
as
colored
spots,
known
as
broke
spots.
To
prevent
broke
spots,
a
batch
test
of
the
pulp
mixture
is
performed
before
the
mixture
is
sent
to
the
tissue
manufacturing
center.
The
process
of
mixing
and
sending
a
batch
is
an
entry-‐
level
job
that
could
be
mastered
in
a
day
or
two.
Testing
a
batch
before
sending
it
is
3
The
Court
has
omitted
the
specific
words
used.
4Lewis’s
version
of
events
is
different.
According
to
Lewis,
at
Carstarphen’s
thirty-‐day
progress
review,
on
May
31st,
Lewis
talked
with
Carstarphen
about
teamwork
and
the
need
to
inform
his
team
of
his
whereabouts
because
Lewis
had
been
informed
that
Carstarphen
was
not
keeping
his
team
informed
when
he
took
outside
breaks
or
left
the
area.
(Lewis
Decl.
¶
10,
Kimberly-‐Clark
Ex.
F,
Doc.
62-‐9.)
At
the
sixty-‐day
meeting,
Lewis
says,
Carstarphen
told
him
only
that
he
wanted
to
transfer
to
a
different
shift
because
his
coworkers
used
profanity
and
were
nasty
because
they
chewed
tobacco
which
Carstarphen
“disliked
to
be
around.”
(Id.
¶
14.)
5
the
first
thing
an
employee
learns
when
working
in
the
broke
center.
The
employee
who
sends
the
batch
(a
process
known
as
“making
the
dump”)
is
responsible
for
testing
it.
Carstarphen
mixed
and
tried
to
send
a
batch
of
pulp,
but
“[i]t
wouldn’t
dump.”
(Pl.’s
Dep.
vol.
II
520,
Kimberly-‐Clark
Ex.
E,
Doc.
62-‐6.)
He
went
to
a
coworker
and
asked
for
help,
and
his
coworker
sent
him
to
Crosby.
(Id.)
Crosby
told
him
not
to
worry
about
it
and
that
he
would
handle
it.
Carstarphen
admits
that
he
did
not
test
the
batch
before
he
tried
to
dump
it.
(Id.
524.)
Ultimately,
Crosby
dumped
the
batch.
Later,
someone
from
the
tissue
manufacturing
center
told
the
employees
in
the
broke
center
that
the
batch
contained
broke
spots.
Lewis
questioned
the
employees
who
were
working
“when
the
broke
spots
occurred
and
learned
that
[Carstarphen]
was
responsible
for
sending
the
defective
batch
of
pulp.”
(Lewis
Decl.
¶
19.)
According
to
Lewis,
Carstarphen,
as
the
person
sending
the
batch,
also
was
responsible
for
testing
it.
(Id.)
Carstarphen
denied,
however,
that
he
had
sent
the
batch
but
“eventually
admitted
that
he
had
and
had
even
contacted
.
.
.
Crosby.
.
.
for
assistance
because
the
batch
clogged
as
he
tried
to
send
it.”
(Id.
¶
20.)
Carstarphen
told
Lewis
that
“he
was
not
sure
if
he
had
performed
a
batch
test
before
he
sent
the
pulp
and
admitted
he
did
not
always
perform
the
test.”
(Id.¶
21.)
Lewis
reported
his
findings
to
Patrice
Lemonde,
human
resources
manager.
Lemonde
made
the
decision
to
terminate
Carstarphen’s
employment
“because
of
a
culmination
of
events
all
in
violation
of
his
Last
Chance
Agreement.”
(Lemonde
Decl.
¶
16,
Kimberly-‐Clark
Ex.
C,
Doc
62-‐4.)
Those
events
include,
“his
6
operator
error
in
the
broke
center
resulting
in
defective
product,
his
failure
to
take
responsibility
for
that
error
and
his
poor
performance,
both
in
mastering
skills
and
working
effectively
with
his
co-‐workers.”
(Id.)
The
Grievance
Procedure
Kimberly-‐Clark
notified
Carstarphen
of
his
termination
on
July
25,
2013.
The
following
day,
Local
1421
filed
a
grievance
on
Plaintiff’s
behalf.
A
“first
step”
meeting
was
held
in
accordance
with
the
grievance
procedures
set
forth
in
the
Collective
Bargaining
Agreement
(CBA)
between
the
union
and
the
company.
Carstarphen
was
represented
at
that
meeting
by
Randy
Calhoun,
Local
1421
president,
and
Rodney
Byrd,
Local
1421
shop
steward.
Because
the
grievance
involved
a
termination,
the
grievance
process
proceeded
immediately
to
the
“third
step,”
and
the
USW
International
Union
representative,
David
Trostle
became
involved.
As
an
employee
of
the
International
Union,
Trostle
negotiates
collective
bargaining
agreements
and
handles
third
step
grievances
and
arbitrations
for
several
Locals
in
Alabama
and
Florida.
At
the
third
step
meeting
on
August
19,
2013,
Trostle
advocated
on
Carstarphen’s
behalf,
presented
Carstarphen’s
side
of
the
events,
and
requested
that
the
company
reinstate
him.
Carstarphen
was
present
at
the
meeting
and
had
an
opportunity
to
speak.
In
late
August,
the
company
denied
Carstarphen’s
appeal.
Under
the
terms
of
the
CBA
the
Union
had
the
option
to
take
that
decision
to
arbitration.
The
Union
continued
to
investigate.
Employees
in
the
broke
center
denied
allegations
of
sexual
harassment,
and
employees
who
were
present
when
the
defective
batch
occurred
did
not
support
Carstarphen’s
version
of
events.
In
addition,
Trostle
obtained
7
information
from
the
company
regarding
the
2011
Last
Chance
Agreement.
On
September
23,
Calhoun
and
Trostle
met
with
Carstarphen.
They
discussed
the
company’s
evidence
and
asked
Carstarphen
if
he
had
information
or
witnesses
who
could
support
his
version
of
events
Trostle
also
told
Carstarphen
that
the
terms
of
the
last
chance
agreement
permitted
termination
based
on
violation
of
a
company
rule
or
unacceptable
job
performance.
After
the
meeting,
Trostle
investigated
whether
other
current
employees
were
subject
to
last
chance
agreements
(none
were)
and
also
investigated
the
circumstances
leading
to
Carstarphen’s
last
chance
agreement.
Trostle
concluded
that
the
last
chance
agreement
was
valid,
even
though
Carstarphen
did
not
sign
it,
as
the
settlement
of
a
grievance
between
the
Union
and
the
Company.
Based
on
his
investigation,
Trostle
decided
not
to
arbitrate
Carstarphen’s
termination.
Trostle
took
into
account
Carstarphen’s
work
history,
prior
discipline,
and
the
company’s
efforts
to
work
with
Carstarphen
to
find
a
job
he
could
do
successfully.
Trostle
also
considered
the
effect
of
the
last
chance
agreement
which
allowed
for
termination
based
on
a
single
instance
of
poor
performance.
Carstarphen’s
claim
that
he
was
not
responsible
for
the
reject
batch
on
July
7
was
not
credible,
in
Trostle’s
opinion.
Carstarphen’s
Complaints
About
Sexual
Harassment
As
noted
above,
Carstarphen
first
reported
McInnis’s
behavior
to
Lewis,
his
supervisor,
in
mid-‐May,
but
Lewis
brushed
him
off.
He
reported
it
again,
this
time
with
more
specificity,
at
his
performance
review
in
late
June
with
Lewis
and
Union
representative
Byrd.
At
that
time,
Carstarphen
requested,
and
was
granted,
8
reassignment
to
a
different
shift.
On
July
24,
2013,
one
day
prior
to
his
termination,
Carstarphen
reported
to
Patrice
Lemonde
that
McInnis
was
talking
about
sex
“all
day”
and
“using
heavy
vulgar
language
and
profanity.”
On
August
5,
2013,
Carstarphen
filed
a
charge
of
discrimination
with
the
EEOC.
On
that
form,
Carstarphen
checked
boxes
indicating
that
he
was
complaining
of
discrimination
based
on
race,
sex
and
retaliation.
(Pl.’s
Dep.
vol.
1
Ex.
5,
Doc
62-‐2.)
Procedural
Background
On
April
8,
2014,
Carstarphen
initiated
this
action
by
filing
a
complaint
against
Kimberly-‐Clark
and
the
Union
under
§
301
of
the
Labor
Management
Relations
Act
(LMRA),
29
U.S.C.
§§
141
et
seq.
This
action
was
assigned
to
Magistrate
Judge
Cassady
for
trial.5
In
his
amended
LMRA
complaint,
Plaintiff
asserted
that
the
Union
violated
its
duty
of
fair
representation
as
follows:
(1)
by
failing
to
take
“meaningful
action”
on
Plaintiff’s
grievance,
(2)
by
failing
to
communicate
honestly
or
provide
information
to
Plaintiff
regarding
the
grievance
process,
(3)
by
failing
and
refusing
to
communicate
about
his
grievance
or
to
inform
him
of
its
decision
regarding
arbitration,
(4)
because
its
actions
(or
inactions)
were
the
result
of
racial
discrimination,
and
(5)
because
its
actions
(or
inactions)
were
the
result
of
retaliation
for
Plaintiff’s
complaints
of
sexual
harassment.
(Id.
¶¶
26-‐
27.)
Finally,
the
amended
LMRA
Complaint
alleged
that
both
the
Union
and
the
Company
are
liable
for
violating
the
LMRA
because
Plaintiff’s
termination
was
5
The
case
was
randomly
assigned
to
Magistrate
Judge
Cassady
on
an
“opt
out”
basis,
meaning
that
any
party
could
opt
to
have
the
case
reassigned
for
trial
to
a
district
judge.
(Doc.
2.)
No
party
did
so,
and
the
case
was
assigned
to
Magistrate
Judge
Cassady.
(Doc.
25.)
9
motivated
by
discrimination
and
retaliation
and,
therefore,
violated
the
CBA’s
nondiscrimination
clause.
On
October
20,
2014,
Plaintiff
filed
a
motion
for
leave
to
file
a
second
amended
complaint.
The
proposed
second
amended
complaint
added
retaliation
and
discrimination
claims
under
Title
VII.
The
motion
for
leave
to
amend
was
denied
because
Plaintiff
failed
to
show
good
cause
for
his
failure
to
amend
within
the
Rule
16(b)
deadline
for
amending
pleadings.
After
his
attempt
to
amend
was
rebuffed,
Plaintiff
filed
a
new
action
(Civil
Action
14-‐00504)
against
Kimberly-‐Clark
and
Local
1421,
based
on
the
same
facts
in
the
LMRA
action,
asserting
claims
under
Title
VII.
In
the
Title
VII
complaint,
Plaintiff
asserted
claims
against
Kimberly-‐Clark
for
sexual
harassment,
retaliation,
and
race
discrimination
and
claims
against
the
Union
for
retaliation
and
race
discrimination.
(Doc.
52,
Entry
1.)
The
Title
VII
action
was
assigned
to
the
undersigned
district
judge.
The
parties
filed
a
joint
motion
to
consolidate
the
LMRA
action
and
the
Title
VII
action.
That
motion
was
granted
and
the
civil
actions
were
consolidated.
(Doc.
51.)
Issues
Presented
In
response
to
Defendants’
motions
for
summary
judgment,
Plaintiff
has
failed
to
address,
and
therefore
abandoned,
numerous
claims.6
Specifically,
Plaintiff’s
Title
VII
claims
based
on
race
discrimination
and
sexual
harassment
6
“[T]he
onus
is
upon
the
parties
to
formulate
arguments;
grounds
raised
in
the
complaint
but
not
relied
upon
in
summary
judgment
are
deemed
abandoned.”
RTC
v.
Dunbar
Corp.,
43
F.3d
587,
599
(11th
Cir.
1995).
10
against
both
defendants
are
abandoned
as
are
most
of
Plaintiff’s
fair
representation
claims
under
the
LMRA.
Plaintiff’s
remaining
claims
are
based
on
his
allegation
that
he
was
terminated
in
retaliation
for
complaints
of
sexual
harassment.
As
a
result,
he
asserts
that
both
Defendants
are
liable
under
Title
VII
and
the
LMRA
for
retaliation.7
Legal
Analysis
Summary
Judgment
Standard
Summary
judgment
should
be
granted
only
if
"there
is
no
issue
as
to
any
material
fact
and
the
moving
party
is
entitled
to
a
judgment
as
a
matter
of
law."
Fed.
R.
Civ.
P.
56(c).
The
party
seeking
summary
judgment
bears
"the
initial
burden
to
show
the
district
court,
by
reference
to
materials
on
file,
that
there
are
no
genuine
issues
of
material
fact
that
should
be
decided
at
trial."
Clark
v.
Coats
&
Clark,
Inc.,
929
F.2d
604,
608
(11th
Cir.
1991).
Once
the
moving
party
has
satisfied
his
responsibility,
the
burden
shifts
to
the
nonmoving
party
to
show
the
existence
of
a
genuine
issue
of
material
fact.
Id.
On
summary
judgment
review,
“the
facts-‐-‐as
supported
by
the
evidence
in
the
record-‐-‐and
reasonable
inferences
from
those
facts”
must
be
viewed
in
the
light
most
favorable
to
the
nonmoving
party.
Young
v.
City
of
Palm
Bay,
Florida,
358
F.3d
859,
860
(11th
Cir.
2004).
Title
VII
Retaliation
Claim
Title
VII
makes
it
unlawful
for
an
employer
or
a
labor
union
to
discriminate
on
the
basis
of
race,
color,
religion,
sex,
or
national
origin.
42
U.S.C.
§
2000e-‐2.
It
also
prohibits
retaliation
by
an
employer
or
labor
union
against
one
who
has
7
Although
Plaintiff
merges
his
Title
VII
and
LMRA
claims
into
one
Title
VII
argument,
they
are
separate
claims
and
will
be
addressed
separately
below.
11
engaged
in
statutorily
protected
conduct.
Clover
v.
Total
Sys.
Servs.,
Inc.,
176
F.3d
1346,
1350
(11th
Cir.
1999);
42
U.S.C.
§
2000e-‐3(a).
Statutorily
protected
conduct
includes
opposition
to
“any
practice
made
unlawful
by
[Title
VII].”
Clover,
176
F.3d
at
1350.
When
a
plaintiff
relies
on
circumstantial
evidence
to
support
a
retaliation
claim
under
Title
VII,
the
evidence
is
evaluated
using
the
familiar
“shifting
burdens”
analysis
set
forth
in
McDonnell
Douglas
v.
Green,
411
U.S.
792
(1973)
and
Texas
Dep’t
of
Community
Affairs
v.
Burdine,
450
U.S.
248
(1981);
Hairston
v.
Gainesville
Sun
Pub.
Co.,
9
F.3d
913,
919
(11th
Cir.
1993)
(retaliation).
“To
prove
discriminatory
[or
retaliatory]
treatment
through
circumstantial
evidence:
(1)
a
plaintiff
must
first
make
out
a
prima
facie
case,
(2)
then
the
burden
shifts
to
the
defendant
to
produce
legitimate,
nondiscriminatory
reasons
for
the
adverse
employment
action,
and
(3)
then
the
burden
shifts
back
to
the
plaintiff
to
establish
that
these
reasons
are
pretextual.”
Mayfield
v.
Patterson
Pump
Co.,
101
F.3d
1371,
1375
(11th
Cir.
1996)
(internal
citations
omitted). To
establish
a
prima
facie
case
of
discrimination,
Plaintiff
must
establish:
(1)
that
he
engaged
in
statutorily
protected
expression,
(2)
that
he
suffered
an
adverse
employment
action,
and
(3)
a
causal
link
between
the
two.
Goldsmith
v.
City
of
Atmore,
996
F.2d
1155,
1163
(11th
Cir.
1993).
Plaintiff
cannot
prevail
on
a
Title
VII
retaliation
claim
against
the
Union.
Because
Plaintiff
conflates
his
Title
VII
and
LMRA
claims,
his
precise
theory
of
liability
is
murky.
He
takes
issue
with
the
Union’s
failure
to
arbitrate
his
grievance,
which
could
be
considered
an
adverse
action
on
the
part
of
the
Union.
However,
the
reason
he
claims
the
Union
failed
to
arbitrate
is
the
epitome
of
a
nonretaliatory
reason.
Plaintiff
argues
that
the
Union,
in
making
its
decision
not
to
arbitrate,
“failed
12
to
even
consider
the
possibility
that
the
company
acted
in
retaliation
for
Plaintiff’s
allegations.”
(Pl.’s
Br.
8,
Doc.
72.)
Obviously,
if
retaliation
wasn’t
considered
by
the
Union,
it
was
not
a
motivating
factor
for
the
decision.8
Therefore,
the
Union
cannot
be
held
liable
for
retaliation
under
Title
VII.
Plaintiff’s
retaliation
claim
against
Kimberly-‐Clark
fails
as
well.
Although
Kimberly-‐Clark
mounts
a
multi-‐pronged
attack
on
Plaintiff’s
Title
VII
claim,
the
Court
need
address
only
one.
Kimberly-‐Clark
had
a
legitimate
nonretaliatory
reason
for
its
decision
to
terminate
Plaintiff’s
employment.
The
settlement
of
a
previous
grievance
had
placed
Plaintiff
on
a
last
chance
agreement.
The
terms
of
that
agreement
provided
that
“any
future
violation
of
company
rules
or
unacceptable/inappropriate
behavior
or
performance”
would
result
in
Plaintiff’s
termination.
Plaintiff
was
terminated
for
unacceptable
performance,
a
legitimate
nonretaliatory
reason.
On
July
7,
2013,
Plaintiff
attempted
to
send
a
batch
of
pulp
without
testing
it.
That
batch
resulted
in
a
large
quantity
of
rejected
product.
Plaintiff
subsequently
tried
to
shift
responsibility
to
a
coworker.
Plaintiff
admitted
that
he
did
not
always
follow
procedure,
which
required
that
each
batch
be
tested.
Plaintiff
maintains
that
the
reason
for
his
termination
was
pretextual
for
three
reasons,
none
of
which
is
sufficient
to
create
a
genuine
issue
of
fact.
First,
he
argues
the
last
chance
agreement
violated
the
CBA,
and
if
not
for
the
last
chance
agreement
he
could
not
have
been
terminated
for
his
actions.
The
logic
in
this
8
Plaintiff
argues
that
the
Union’s
“decision
not
to
arbitrate
and
its
failure
to
consider
the
company’s
conduct
as
retaliation.
.
.
amounts
to
the
union
joining
in
the
discrimination
of
the
company.”
(Id.)
Plaintiff
provides
no
legal
authority
for
his
novel
theory
that
retaliatory
intent
can
be
imputed
from
the
actions
of
another.
13
argument
is
elusive
since
the
last
chance
agreement
was
entered
two
years
before
Plaintiff’s
complaints
of
sexual
harassment
or
his
termination.
As
Kimberly-‐Clark
points
out,
it
strains
credulity
to
believe
that
the
company
entered
into
an
agreement
to
return
Plaintiff
to
work
so
that
it
could
later
fire
him
in
retaliation
for
a
complaint
that
had
not
yet
occurred.
Second,
Plaintiff
maintains
that
he
did
nothing
wrong
because
he
did
not
actually
“dump”
the
material.
He
does
not
dispute,
however,
that
he
created
and
failed
to
test
the
batch
that
resulted
in
the
rejected
product,
or
that
he
shifted
blame
to
a
coworker,
or
that
he
admitted
that
he
did
not
always
test
each
batch.
Third,
Plaintiff
argues
that
his
discipline
was
disproportionate
because
“[t]he
only
other
person
disciplined
for
‘broke’
spots
as
far
back
as
the
union
president
could
remember
received
only
an
oral
reprimand.”
(Pl.’s
Br.
8.)
This
attempted
reliance
on
comparator
evidence
falls
short
because
“the
quantity
and
quality”
of
the
comparator’s
misconduct
must
be
“nearly
identical”
to
that
of
the
plaintiff
before
the
Court
can
consider
it. Maniccia
v.
Brown,
171
F.3d
1364,
1368
(11th
Cir.1999)
(nearly
identical
conduct
requirement
keeps
courts
“from
second-‐guessing
employers'
reasonable
decisions
and
confusing
apples
with
oranges”).
Plaintiff
has
failed
to
point
to
evidence
from
which
a
reasonable
trier
of
fact
could
conclude
that
the
Company’s
legitimate
nonretaliatory
reasons
for
firing
him
were
pretext
for
discrimination.
Kimberly-‐Clark
is,
therefore,
entitled
to
summary
judgment
on
Plaintiff’s
retaliation
claim
against
it.
LMRA Claim
14
In DelCostello v. International Brotherhood of Teamsters, the Supreme Court
explained the nature of a “hybrid” § 301/fair representation, which is the type of claim
Plaintiff has asserted here.
It
has
long
been
established
that
an
individual
employee
may
bring
suit
against
his
employer
for
breach
of
a
collective
bargaining
agreement.
Ordinarily,
however,
an
employee
is
required
to
attempt
to
exhaust
any
grievance
or
arbitration
remedies
provided
in
the
collective
bargaining
agreement.
Subject
to
very
limited
judicial
review,
he
will
be
bound
by
the
result
according
to
the
finality
provisions
of
the
agreement.
In
Vaca
[v.
Sipes,
386
U.S.
171,
(1967)]
and
Hines
[v.
Anchor
Motor
Freight,
424
U.S.
554
(1976)],
however,
we
recognized
that
this
rule
works
an
unacceptable
injustice
when
the
union
representing
the
employee
in
the
grievance/arbitration
procedure
acts
in
such
a
discriminatory,
dishonest,
arbitrary,
or
perfunctory
fashion
as
to
breach
its
duty
of
fair
representation.
In
such
an
instance,
an
employee
may
bring
suit
against
both
the
employer
and
the
union,
notwithstanding
the
outcome
or
finality
of
the
grievance
or
arbitration
proceeding.
Such
a
suit,
as
a
formal
matter,
comprises
two
causes
of
action.
The
suit
against
the
employer
rests
on
§
301,
since
the
employee
is
alleging
a
breach
of
the
collective
bargaining
agreement.
The
suit
against
the
union
is
one
for
breach
of
the
union's
duty
of
fair
representation,
which
is
implied
under
the
scheme
of
the
National
Labor
Relations
Act.
“Yet
the
two
claims
are
inextricably
interdependent.
‘To
prevail
against
either
the
company
or
the
Union,
...
[employee-‐plaintiffs]
must
not
only
show
that
their
discharge
was
contrary
to
the
contract
but
must
also
carry
the
burden
of
demonstrating
a
breach
of
duty
by
the
Union.’”.
DelCostello
v.
Int'l
Brotherhood
of
Teamsters,
462
U.S.
151,
163-‐65
(1983)
(quoting
Mitchell,
451
U.S.,
at
66–67
(Stewart,
J.,
concurring
in
the
judgment))
(emphasis
added).
Plaintiff’s
claims
fail
on
both
requirements
set
forth
in
DelCostello.
He
cannot
demonstrate
that
retaliatory
termination
violates
the
CBA,
nor
can
he
demonstrate
that
the
Union
breached
its
duty
of
fair
representation.
Plaintiff
asserts
that
his
termination
violates
the
CBA’s
nondiscrimination
clause,
which
states:
15
The
parties
signatory
to
this
agreement
shall
not
discriminate
against
any
employee
because
of
race,
color,
religion,
sex,
national
origin,
creed,
age,
handicap,
marital
status,
union
membership
or
union
activity
which
is
not
in
conflict
with
law
or
the
provisions
of
this
agreement.
(Pl.’s
Dep.
Vol.
II
Ex.
26
¶2(H).)
This
provision
clearly
prohibits
discrimination,
but
it
neither
explicitly
nor
implicitly
prohibits
retaliation.
Since
retaliation
is
not
covered
by
the
nondiscrimination
clause,
Plaintiff’s
termination
did
not
violate
this
provision
of
the
CBA.9
Like
many
of
his
other
arguments,
Plaintiff’s
theory
regarding
the
Union’s
alleged
breach
of
the
duty
of
fair
representation
is
not
clearly
presented.
As
best
the
Court
can
discern,
Plaintiff
contends
that
the
Union
breached
its
duty
by
failing
to
arbitrate
when
it
knew
the
company
had
terminated
Plaintiff
shortly
after
he
complained
of
sexual
harassment.
“In
order
to
establish
that
the
union
has
breached
its
duty
of
fair
representation
it
must
be
shown
that
the
union's
handling
of
the
grievance
was
either
“‘arbitrary,
discriminatory,
or
in
bad
faith,’
as,
for
example,
when
it
‘arbitrarily
ignore(s)
a
meritorious
grievance
or
process(es)
it
in
(a)
perfunctory
fashion.’”
Harris
v.
Schwerman
Trucking
Co.,
668
F.2d
1204,
1206
(11th
Cir.
1982)
(quoting
Int’l
Brotherhood
of
Elec.
Workers
v.
Foust,
442
U.S.
42,
47
(1979)).
The
Union
did
not
ignore
Plaintiff’s
grievance
or
treat
it
perfunctorily.
Rather,
it
advocated
on
Plaintiff’s
behalf
through
the
third
step
of
the
grievance
process.
A
decision
not
to
arbitrate
a
nonmeritorious
grievance,
made
after
investigation,
does
not
violate
the
duty
of
fair
representation.
McCollum
v.
Bolger,
9
Plaintiff
relies
on
the
nondiscrimination
clause
but
makes
no
effort
to
demonstrate
how
or
why
it
might
prohibit
retaliation.
16
794
F.2d
602,
612
(11th
Cir.
1986).
Trostle,
the
Union
representative,
diligently
investigated
Plaintiff’s
case
before
declining
to
take
the
case
to
arbitration.
Trostle
apparently
considered
and
rejected
two
possible
bases
for
pursuing
Plaintiff’s
case
in
arbitration.
First,
he
could
not
challenge
the
factual
basis
for
the
company’s
decision
because
he
could
find
any
witnesses
to
support
Plaintiff’s
version
of
events
regarding
either
the
alleged
sexual
harassment
or
the
events
resulting
in
the
defective
product.
Second,
after
conducting
research,
he
concluded
that
he
could
not
attack
the
validity
of
the
last
chance
agreement,
which
was
the
legal
basis
for
the
termination.
Because
Trostle
concluded,
after
adequate
investigation,
that
Plaintiff’s
claims
lacked
merit,
the
Union
cannot
be
held
liable
for
violating
the
duty
of
fair
representation.10
Conclusion
The
evidence,
even
viewed
in
the
light
most
favorable
to
the
Plaintiff,
does
not
support
a
judgment
in
Plaintiff’s
favor
against
either
Defendant
on
any
of
the
claims
presented.
Therefore,
Defendants’
motions
for
summary
judgment
filed
are
GRANTED.
DONE
and
ORDERED
this
the
21st
day
of
September,
2015.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
10
The
Court
declines
to
address
the
Union’s
alternative
argument
that
it
cannot
be
held
liable
for
any
violation
by
Trostle
because
Trostle
is
employed
by
the
International
Union,
not
the
Local.
17
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