Scott v. UAW Solidarity House et al
OPINION AND ORDER: The Court hereby GRANTS the Union's Motion to Strike 104 and ORDERS that Scott's Response to defendant's Motion for Summary Judgment 103 be STRICKEN. In addition, the Court hereby GRANTS the Union's Motion for Summary Judgment 96 . As this order disposes of all of Scott's claims, the Clerk is DIRECTED to enter judgment. Signed by Judge Jon E DeGuilio on 10/31/2017. (Copy mailed to pro se party)(jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAVID A. SCOTT, Jr.,
UAW SOLIDARITY HOUSE b/k/a
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE and
WORKERS OF AMERICA, UAW,
Case No. 2:14-CV-106 JD
MEMORANDUM OPINION AND ORDER
Plaintiff David A. Scott, Jr., filed the instant lawsuit pro se, alleging that his union
representatives: (1) engaged in sexual discrimination by advocating for female union members
over him; (2) violated the Americans with Disability Act (the “ADA”) by allowing his employer
to ignore his physical work restrictions; (3) retaliated against him when he complained by not
pursuing his grievances; and (4) failed to fairly represent him after his termination.1 Scott
originally named his union, along with several individual defendants in this action. The Court
previously dismissed the individuals in accordance with Fed. R. Civ. P. 41(a)(2) [DE 44],
leaving only UAW Solidarity House (the “Union”) as the defendant.2
Scott uses the term “wrongful termination” in his complaint, but in doing so describes a cause of action
against the Union for breach of the duty of fair representation under the Labor Management Relations
Act, 29 U.S.C. § 185. [DE 1 at 4] The Court will construe his claim as one for breach of the Union’s duty
to provide fair representation after Lear terminated him.
The Union requests a ruling that it, as the “International Union,” is the only defendant in this case. [DE
99 at 14-15] Scott did not serve the Union’s local affiliate, “Local 2335,” in this lawsuit, but raises several
allegations against Local 2335 in his complaint and in his deposition testimony. The Court declines to
parse the allegations and the record in order to analyze this request; the defendant’s argument, even if
well-taken, matters little since the substance of Scott’s claims do not withstand summary judgment for the
Scott brought a parallel action in this District against his employer, Lear Corporation, and
the Court consolidated these cases for discovery purposes only.3 [DE 26] Discovery has now
closed and the Union moved for summary judgment. [DE 96] The Union also moved to strike
Scott’s response to its summary judgment motion based on numerous deficiencies. [DE 104] For
the reasons stated herein, the Court will grant both the Union’s Motion to Strike and its Motion
for Summary Judgment.
Defendant’s Motion to Strike
Scott’s response to Defendant’s motion for summary judgment can be divided into two
parts: a six page brief that reads more like an affidavit;4 and over 200 pages of documents –
mostly phone bill records – labeled as “exhibits.” Defendant moved to strike Scott’s response
[DE 105], and Scott filed nothing in opposition.
The response to Defendant’s motion for summary judgment, as a whole, does not comply
with Fed. R. Civ. P. 56. For example, Scott has failed to authenticate or identify the documents
reasons stated herein. The Court will include Local 2335’s actions when it refers to “the Union,” where
The parallel action is Case No. 2:14-cv-107 before Judge Lozano. On September 27, 2017, Judge
Lozano granted Lear’s motion for summary judgment and dismissed Scott’s claims with prejudice.
Even if considered an affidavit, Scott’s brief would be stricken for failing to comply with Fed. R. Civ. P
56(c)(4) because it does not maintain that it is based on personal knowledge, set out admissible facts, or
show that Scott is competent to testify on the matters discussed within. On summary judgment, affidavits
are only admissible under 28 U.S.C. § 1746 if they are “made under penalties of perjury; only unsworn
documents purporting to be affidavits may be rejected.” Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.
1985). Because Scott makes no mention that his statements are subscribed by him as true under penalty of
perjury, the Court would not be able to consider his filing as an admissible affidavit. See Sexson v. State
Farm Fire & Cas. Co., 61 F. App’x 267, 270 (7th Cir. 2003) (“On a motion for summary judgment, a
court must not consider those parts of an affidavit that are insufficient” under Fed. R. Civ. P. 56(c)(4),
which sets out mandatory requirements “and the failure to follow those requirements makes the proposed
evidence inadmissible during the consideration of a summary judgment motion.”) (internal citations
attached to his brief, despite the requirement that “[w]hen evidence is offered through exhibits on
a summary judgment motion, those exhibits ‘must be identified by affidavit or otherwise be
admissible.’” Sissom v. Purdue Univ., No. 4:04-CV-72, 2006 WL 897572, at *4 (N.D. Ind. Mar.
31, 2006), aff’d, 207 F. App’x 715 (7th Cir. 2006) (quoting Powers v. Dole, 782 F.2d 689, 696
(7th Cir. 1986)). But even if Scott had properly authenticated his exhibits, he fails to provide any
citations in his brief that would otherwise guide the Court to the specific documents he believes
demonstrate the existence of material issues of fact. While Scott’s narrative references letters and
phone call records in passing, he makes only a single catch-all link to the documents he attached:
Plaintiff will include EXHIBITS A, B, C, D & 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 to show
how the defendant UAW was involved with helping Lear carry out all of their bad
acts and not trying or attempting to represent plaintiff fairly by allowing Lear and
the UAW to violate the plaintiffs [sic] CBA contract rights.
[DE 103 at 5] Scott therefore has failed to support his factual positions in accordance with Fed.
R. Civ. P. 56(c)(1), and the Court need not sift through these several hundred pages of
documents, pluck out the ones that Scott might be referring to in his brief, and then reconstruct
his response by stitching them to various points in his narrative. Diadenko v. Folino, 741 F.3d
751, 757 (7th Cir. 2013) (“[A] district court is not required to scour the record looking for factual
disputes or to scour the party’s various submissions to piece together appropriate arguments. A
court need not make the lawyer’s case.”).
True, Scott’s pro se status generally requires the Court to afford his pleadings a more
liberal construction. Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006). “However, it is also well
established that pro se litigants are not excused from compliance with procedural rules.” Pearle
Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008) (citing McNeil v. United States, 508 U.S.
106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993) (noting that the Supreme Court has “never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel”)). A lawsuit “is not a game of hunt the peanut.”
Greer v. Bd. of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001). Employment
discrimination claims and labor disputes in particular are extremely fact-intensive in nature, and
the Court is not “obliged in our adversary system to scour the record looking for factual disputes
….” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1993); see also Greer,
267 F.3d at 727 (noting that district court would have been within its right to grant summary
judgment against pro se plaintiff in employment discrimination case where plaintiff’s response
did not cite evidence in support and contained self-serving legal conclusions).
Here, Defendant notified Scott about its motion for summary judgment, as required by
L.R. 56-1(f). [DE 97] Defendant’s notice not only included copies of the federal and local rules
governing summary judgment, but also provided Scott with a straightforward warning that
failure to follow these rules may result in him losing this case. Id. Scott did not heed this advice
and filed a noncompliant response to Defendant’s motion for summary judgment, containing the
various deficiencies as discussed above. Although Scott is a pro se litigant, “‘strict adherence to
the procedural requirements … is the best guarantee of evenhanded administration of the law.”’
McNeil, 113 S. Ct. at 1984; (quoting Mohasco Corp. v. Silver, 100 S. Ct. 2486, 2497 (1989)).
Thus, the Court will grant Defendant’s motion to strike Scott’s response in its entirety, including
the documents attached thereto. Rosemary B. on Behalf of Michael B. v. Bd. of Educ. of Cmty.
High Sch. Dist. No. 155, 52 F.3d 156, 158-59 (7th Cir. 1995) (affirming district court’s decision
to strike plaintiff’s response that included no references to supporting evidence and attached
unauthenticated documents); see also Sissom, 2006 WL 897572, at **4-6 (striking plaintiff’s
response to motion for summary judgment that was unsupported by authenticated evidence and
contained no citations or “any sort of guide by which to navigate the maze of evidentiary
submissions”) (internal citations omitted).
Defendant’s Motion for Summary Judgment
On summary judgment, the moving party bears the burden of demonstrating 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). A “material” fact is one identified by the substantive law as affecting
the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine
issue” exists with respect to any material fact when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue
for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289
(1968)). In determining whether a genuine issue of material fact exists, this Court must construe
all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008);
King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).
Because of the deficiencies in Scott’s response, the Court resolves the present motion for
summary judgment on the facts properly before it, meaning almost entirely those supplied by the
Union. The following undisputed facts will be accepted as true:
Lear operates a plant in Hammond, Indiana, that manufactures seats for Ford vehicles.
Lear employed Scott at the Hammond facility from October 2010 to April 23, 2013, and initially
hired him to work on the production line as an assembler. The Union represents over 700
employees at the Hammond plant, and a collective bargaining agreement outlined and governed
the terms and conditions of employment, including a grievance process, for bargaining unit
employees from September 12, 2009, through August 4, 2014 (the “CBA”). Scott was a member
of the Union while employed at the facility.
Scott claims he experienced an assortment of problems at Lear between December 2010
and December 2011. However, he sought assistance from the Union with regard to only a few of
those issues, such as vacation day credits, unpaid wages, worker's compensation claims, and
sexual harassment. Union officials indeed responded in the affirmative to Scott's requests for
help. On December 20, 2011, Scott began a leave of absence for issues he had with his feet.
Because he felt the Union was inadequately prosecuting grievances he never asked to be
filed, Scott wrote to former International Union President Bob King in January 2012. On January
26, 2012, Scott filed a National Labor Relations Board (“NLRB”) unfair labor practice charge
against Local 2335, alleging that the Union breached its duty of fair representation by failing to
process his grievances for discriminatory, arbitrary, and capricious reasons. On March 13, 2012,
the NLRB regional office dismissed Scott’s charge due to insufficient evidence. Scott appealed
that dismissal, but the national office denied his challenge because its investigation revealed that
the Union indeed looked into and resolved his complaints.
Scott returned to work at the Hammond facility on August 29, 2012. The following day,
he hurt himself while loosening leather and affixing it to seat headrests. Subsequent to this
injury, Scott did not work at all in September or October 2012.
By the time he returned to work in November 2012, Scott had been placed on various
work restrictions involving the use of his right arm by his then-physician, Dr. Schwartz. Lear
contacted Scott to inform him that it could accommodate him by assigning tasks that conformed
to his work restrictions. As scheduled, Scott returned to work on November 13, 2012. During the
month of November 2012, Scott worked about 3 or 4 hours each day on November 13, 14, 15,
19, 20, 21, 26, and 27. Between November 13 and 15, Scott sat by himself in the cafeteria.
Between November 19 and 21, Scott wiped cafeteria tables. On November 26 and 27, he
separated and sorted bolts. November 27, 2012, marked the last day Scott worked at Lear’s
facility. Thereafter, he reported as “sick.”
After Scott stopped reporting for work, Lear reached out to him on multiple occasions in
November and December 2012 to inform him that it had suitable work within his physical
restrictions. Scott did not take up Lear’s offer, and failed to provide Lear with required medical
documentation regarding additional work restrictions from his new physician until April 2013.
Lear terminated Scott on April 23, 2013.
Immediately following his termination, the Union filed a grievance with Lear on Scott’s
behalf. The Union navigated his grievance through the multi-step process as set forth in the
CBA, but Lear would not reinstate Scott. Finally, the matter proceeded to binding mediation on
March 17, 2014. Scott prepared for and participated in the mediation along with Union officials.
The mediator ruled against Scott, finding that Lear terminated him for just cause, but the Union
still managed to negotiate a modest settlement offer from Lear. Scott rejected that offer. In light
of these events and in keeping with the binding nature of the mediation, the Union informed
Scott on April 8, 2014, that it would take no further action on his grievance.
a. Scott’s Title VII and ADA Claims are Limited to Events that Occurred
On or After November 8, 2012
In Indiana, an EEOC charge “must be filed within 300 days of the occurrence of the act
that is the basis of the complaint.” Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.
1994). Scott filed his EEOC charge against the Union for discrimination based on sex, disability,
and retaliation, on September 4, 2013. [DE 1 at 6] Thus, his Title VII and ADA claims are
limited to those based on events occurring on or after November 8, 2012.
b. Scott’s Sex Discrimination Claims Fail
Title VII prohibits labor organizations from discriminating against any individual because
of his race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(c)(1). To prevail on
his sex discrimination claim, Scott must demonstrate a causal link between his gender and an
adverse action. The legal standard to be applied “is simply whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other
proscribed factor caused the discharge or other adverse employment action.” Ortiz v. Werner
Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). “Evidence must be considered as a whole, rather
than asking whether any particular piece of evidence proves the case by itself – or whether just
the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Id.
Scott’s sex discrimination claim is one sentence: “Sex discrimination because the union
[steward] would only represent the females.” [DE 1 at 3] Although his complaint does not set
forth the basis for his sex discrimination claim, Scott testified to a few examples in which Union
representatives filed grievances on behalf of female employees. For example, Scott claims that a
female employee named “Charmaine” had her grievance processed by the union representatives,
but he could not provide any details about that grievance, such as its subject matter, resolution,
or whether it was even filed. [DE 98-15 at 199:8-200:7] Scott also claimed that union officials
represented one or two unnamed female employees who had been disciplined for abusing the
punch-in clock, but again, Scott could not provide any evidence as to whether the Union actually
processed those grievances. Id. at 200:10-201:13. Critically, Scott has not identified a single
grievance he wanted pursued that got passed up in favor of these female workers’ grievances,
and so, there can be no disparate treatment.5 And regardless, these episodes both occurred in
2011, id. at 200:8-9, 201:14-15, well more than 300 days prior to his EEOC filing in September
2013. Therefore, his sex discrimination claim is time barred.
Moreover, to survive summary judgment, Scott must present evidence that would allow a
reasonable jury to find that the Union allegedly declined to represent his interests while at Lear
because of his sex. He has not done so here, notwithstanding his failure to identify any of his
own grievances that went unprosecuted. In fact, by his own sworn testimony, the union officials
did indeed represent other males:
Do you contend that [the union] represented other males?
Males that were part of the – you know, their little group, yeah.
And that would be – that would be other co-workers of yours, correct?
Id. at 199:1-7. No reasonable factfinder could draw a causal connection between Scott’s gender
and the union representatives’ alleged adverse action, and his claim of sex discrimination must
Even if Scott had pointed to the grievance he claimed to have requested after being sexually harassed by
a female coworker as an example of his claims being passed over for those of his female coworkers, his
sex discrimination claim would still fall flat because of his failure to show that the Union passed this
grievance over because of his sex.
c. Scott’s ADA Claim Fails
Scott alleges that “the union [steward] took part in allowing the company to violate [his]
disability and work restrictions to cause more harm and denial of medical treatment.” [DE 1 at 3]
More specifically, he claims the Union failed to file grievances to have him removed from the
jobs that Lear assigned him to and that he believes fell outside his work restrictions. [DE 98-15
Under the ADA, employers and labor organizations shall not “discriminate against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The ADA states that “not
making reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or an employee” is considered
discrimination, “unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. §
12112(b)(5)(A). “To establish a claim for failure to accommodate, a plaintiff must show that: (1)
she is a qualified individual with a disability; (2) the employer was aware of her disability; and
(3) the employer failed to reasonably accommodate the disability.” EEOC v. Sears, Roebuck &
Co., 417 F.3d 789, 797 (7th Cir. 2005) (citation omitted).
Regarding his ADA claim, Scott does not maintain that he lived with any disability apart
from his injury-related work restrictions. Around late 2011 and early 2012, his then-physician,
Dr. Schwartz, placed him on a permanent restriction limiting him to “light physical demand” and
“20 pounds of occasional lifting, 10 pounds of frequent lifting, and negligible constant lifting.”
[DE 98-14 at 1] Related to these restrictions, the physician diagnosed Scott with a 7% upper
extremity impairment. Id. The record also indicates that Dr. Schwartz cleared Scott to return to
work with no use of his right arm after his August 2012 injury. [DE 98-13 at 116-123, 166]
But it matters not whether these work restrictions made Scott a qualified individual with a
disability under the ADA because his employer did not fail to reasonably accommodate his
limitations. After injuring himself at the end of August 2012, Scott did not work at Lear either in
September or October. [DE 98-13 at 109:9-11, 116:9-15] On November 12, 2012, Lear advised
Scott that it could accommodate the restrictions prescribed by Dr. Schwartz. [DE 98-14 at 2]
Scott returned to work the following day and worked a total of eight days at Lear over the course
of that November, for about three or four hours each day. Id. at 125:20-21, 127:14-17, 128:7-9.
During that time, Lear indeed accommodated his restrictions by having him sit in the cafeteria,
wipe tables, and sort bolts. Id. at 127:3-129:20. Scott got paid for the time he worked in
November 2012. Id. at 128:13-15. He stopped reporting for work at Lear on November 27, 2012.
[DE 98-16 at 6] Thereafter, Lear again informed him on multiple occasions that it could still
accommodate his work restrictions [98-14 at 3-5, 7] but he did not report.6
In response to the instant summary judgment, Scott has produced no evidence that either
Lear or the Union failed to accommodate his purported disability.7 The union steward could not
have “allowed” Lear to discriminate against Scott in the absence of a showing of discrimination
altogether. Accordingly, Scott’s ADA claim against the Union fails.
On December 3, 2012, another physician placed Scott on additional restrictions limiting him to no
overhead work and no lifting over 10 pounds with his right arm. [DE 98-14 at 8] These restrictions were
to be in place for six weeks. Id. Despite multiple requests for documentation in December 2012, Lear did
not receive notice of these restrictions until about April 19, 2013 [DE 98-16 at 6-7], and regardless, Scott
has provided no evidence to suggest that he would have been unable to perform the very same work Lear
assigned him to in November 2012 under these new, temporary work restrictions.
The Court need not address the issue of whether the Union can be held liable for any alleged disability
discrimination at the hand of Scott’s employer when he has provided no evidence of any such
discrimination in the first place.
d. Scott’s Retaliation Claim Fails
Scott’s Title VII retaliation claim embodies a claim for breach of the duty of fair
representation; essentially, he argues that the Union retaliated against him by failing to process
his purported grievances. The Union’s duty of fair representation and Title VII overlap in that
they both prohibit discrimination. Young-Smith v. Bayer Health Care, LLC, 788 F. Supp. 2d 792,
802 (N.D. Ind. 2011) (citing Agosto v. Correctional Officers Benev. Ass’n, 107 F. Supp. 2d 294,
304 (S.D.N.Y. 2000)). Consequently, where a plaintiff claims that a union violated Title VII
based on its failure to represent a member, courts generally incorporate the duty of fair
representation as one of the elements of the alleged Title VII violation. Id. (citing Agosto, 107 F.
Supp. 2d at 304 (collecting cases)). “Once the plaintiff establishes a breach of the duty of fair
representation, she must demonstrate that the adverse action was motivated by unlawful
discrimination or retaliation.” Id. (citing Burke v. CWA Local 1109, 2009 WL 3805517, *3
To establish a Title VII claim against a union based on a breach of a duty of fair
representation, Scott must show that: (1) Lear violated the collective bargaining agreement with
respect to the Scott; (2) the Union permitted the breach to go unrepaired, thus breaching its own
duty of fair representation; and, (3) there was some indication that the Union’s inactions were
motivated by animus. Armour v. Indep. Limestone Co., No. IP99-898-C-T/G, 2000 WL 1701962,
at *2 (S.D. Ind. Mar. 16, 2000) (citing Greenslade v. Chicago Sun Times Inc., 112 F.3d 853, 866
(7th Cir. 1997); Babrocky v. Jewel Food Co., 773 F.2d 857, 868 (7th Cir. 1985)). “A union’s
refusal to handle a grievance on the basis of discriminatory animus violates the duty of fair
representation.” Armour, 2000 WL 1701962, at *2 (citing Greenslade, 112 F.3d at 867; Martin v.
Youngstown Sheet & Tube Co., 911 F.2d 1239, 1248 (7th Cir.1990)). The need to show animus
in the retaliation context translates to the requirement that a plaintiff show a causal connection
between his protected activity and the discriminatory action. Contreras v. Suncast Corp., 237
F.3d 756, 765 (7th Cir. 2001). To show a causal connection, Scott must produce some evidence
that the defendant “would not have taken the adverse … action but for [his] protected activity.”
Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017) (internal quotations and citations
Scott claims that, between December 2010 and December 2011, he observed or
experienced various issues with sexual harassment, sex discrimination, general harassment from
supervisors and coworkers, vacation days, wages, worker’s compensation claims, leaked
information, and issues of whether his assigned jobs complied with injury-related work
restrictions. By his own admission, however, he never asked the Union to file grievances over
the purported harassment from his supervisors and coworkers, female employees receiving
preferential treatment, or his placement on a light duty job. [DE 98-15 at 76:16-22, 92:18-93:13,
98:3-9]. When he did ask the Union for help, Union officials responded in the affirmative and
persuaded Lear to credit him with a vacation day, lobbied for and obtained 6.5 hours of unpaid
work for Scott, and had his worker’s compensation medical appointments rescheduled to
accommodate him. [DE 98-7 ¶¶ 19-21]
Because he felt the Union failed to prosecute the grievances he never asked to be filed,
Scott: (1) wrote a letter to former International Union President Bob King complaining about a
lack of proper assistance from Local 2335; and (2) filed a NLRB unfair labor practice charge
against the Union alleging it breached its duty of fair representation by failing to process his
grievances. [DE 98-7 ¶ 22; 98-11 at 1; 98-15 at 89:11-25, 106:5-107:3; 98-16 at 2-4]. Scott
claims that, in response to these two purportedly protected actions, the Union sat back and did
nothing to address his various problems with Lear.
This retaliation claim fails for several reasons. First, in response to the instant summary
judgment, Scott has provided no evidence indicating that Lear breached the CBA as applied to
him during his employment. And, without such a showing, he cannot claim that the Union
subsequently failed to fairly represent his grievances against Lear. Second, the NLRB dismissed
Scott’s charge for failing to show that the Union refused to process his grievances for any
unlawful reasons. [DE 98-11 at 2] Likewise here, Scott does not and cannot identify which
grievances the Union failed to prosecute, because by his own admission, he never asked the
Union to file the grievances in the first place.8 [DE 98-15 at 76:16-22, 92:18-93:13, 98:3-9] It
comes as no surprise that his appeal of the NLRB dismissal subsequently fell short because “the
investigation revealed the Union looked into and resolved several of [his] complaints, including a
paycheck shortage and a dispute over a vacation day.” [DE 98-11 at 5] Third, Scott has provided
no evidence suggesting a causal nexus between his January 2012 complaints and the Union’s
alleged inaction. Therefore, no reasonable factfinder could determine that genuine issues of
material fact exist as to whether the Union retaliated against Scott in violation of Title VII. See
Lauth v. Covance, Inc., 863 F.3d 708, 717 (7th Cir. 2017) (affirming summary judgment where
plaintiff provided no evidence, circumstantial or otherwise, linking his termination to EEOC
Even if Scott had pointed to the grievance he claimed to have requested after being sexually harassed by
a female coworker as an example of the Union’s failure to prosecute his claims, his retaliation claim
would still fall well short based on his failure to show that Lear breached the CBA and that the Union
declined to pursue his sexual harassment grievance because of his letter and NLRB filing.
e. Scott’s Fair Representation Claims Fail
Scott’s complaint only alleges a fair representation cause of action against the Union with
respect to his termination from Lear. [DE 1] However, in his deposition, Scott raised several
other instances between December 2010 and December 2011 (noted above) for which he
requested assistance from the Union, but contends he did not receive proper representation. To
the extent he intended to raise fair representation claims based on these matters, such claims are
untimely. A six-month statute of limitations governs claims against labor organizations for
breach of the duty of fair representation. 29 U.S.C. § 160(b). Where such a claim is based upon
the failure of a union, after being notified of the employee’s grievance, to take action to process
grievances or initiate grievance procedures, the six-month period begins to run when the
employee discovers, or through reasonable diligence should have discovered, the acts
constituting the violation. Metz v. Tootsie Roll Indus., Inc., 715 F.2d 299, 303-04 (7th Cir. 1983).
The most generous application of this statute of limitations starts the six-month filing
clock on April 23, 2013, when Lear terminated Scott. Scott testified that, by that date, he realized
his various requests to the Union for assistance had run their course. [DE 98-15, 120:21-122:17]
However, Scott filed the instant complaint on April 4, 2014, well beyond six months after his
termination. Therefore, apart from his claim that the Union failed to represent him in relation to
his firing, any additional failure of representation claims are time barred.
Regarding Scott’s contention that the Union failed to represent him in connection with
his termination from Lear, this claim also fails because, based on the evidence properly before
this Court, no reasonable factfinder could determine that any union official acted arbitrarily or
with improper motive. A union breaches its duty of fair representation where it acts in an
arbitrary or discriminatory manner, or in bad faith. Air Line Pilots Ass’n, Int’l v. O’Neill, 499
U.S. 65, 67 (1991). “Whether or not a union’s actions are discriminatory or in bad faith calls for
a subjective inquiry and requires proof that the union acted (or failed to act) due to an improper
motive.” Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir. 2003). In addition, a
union’s actions are arbitrary “only if, in light of the factual and legal landscape at the time of the
union's actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be
irrational.” Id. (internal citations omitted). This “extremely deferential standard” precludes the
courts from “substitut[ing] their judgment for that of the union, even if, with the benefit of
hindsight, it appears that the union could have made a better call.” Ooley v. Schwitzer Div.,
Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992). Moreover, “mere negligence, even in
the enforcement of a collective-bargaining agreement, would not state a claim for breach of the
duty of fair representation.” United Steelworkers of America v. Rawson, 495 U.S. 362, 372-73,
110 S. Ct. 1904, 1911, 109 L. Ed. 2d 362 (1990).
The Union did not “skip over” the applicable steps in Scott’s grievance process, as he
maintains. [DE 98-15 at 159] The day after Lear fired Scott, Union representative Lee Lynk filed
a grievance on his behalf challenging the termination and seeking to make Scott whole. [DE 9812] Local union officials advocated for Scott’s position at the Step 2 grievance meeting on
August 7, 2013, but Lear denied the grievance at that stage. [DE 98-7 ¶ 28] International and
local union officials then advocated for Scott’s reinstatement at the Step 3 meeting on August 27,
2013, but again Lear denied the grievance. [DE 98-1 ¶¶ 27, 29] The CBA does not include
grievants among those permitted to participate in these meetings. [DE 98-2 at 7-8; 98-7 ¶ 13]
Based on Lear’s multiple denials of Scott’s grievance and in the interest of expediting his
process, the Union opted to submit his claim to binding mediation rather than proceeding with a
Step 3 and ½ meeting. [DE 98-1 ¶¶ 30-31] The Union also elected to submit the grievance to
binding mediation, as opposed to arbitration, in the interest of efficiency, past practices, and a
successful track record of engaging in binding mediation with Lear. Id. ¶¶ 32-33. The Union sent
Scott advance notice of the mediation and he prepared for that binding mediation along with
Union officials. Id. ¶¶ 34-35. The mediation took place on March 17, 2014, and the mediator
ruled against Scott. Id. ¶ 39. Still, the Union managed to negotiate a modest settlement offer for
Scott, which he rejected. Id. ¶¶ 41-43.
Nothing in the record indicates that the Union’s actions were arbitrary, discriminatory, or
made in bad faith. Thus, no reasonable factfinder could determine that genuine issues of material
fact exist such to prevent summary judgment on Scott’s representation claims.
For the reasons stated above, the Court hereby GRANTS the Union’s Motion to Strike
[DE 104] and ORDERS that Scott’s Response to defendant’s Motion for Summary Judgment
[DE 103] be STRICKEN. In addition, the Court hereby GRANTS the Union’s Motion for
Summary Judgment [DE 96]. As this order disposes of all of Scott’s claims, the Clerk is
DIRECTED to enter judgment.
ENTERED: October 31, 2017
/s/ JON E. DEGUILIO
United States District Court
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