Peeples et al v. Detroit, City of et al

Filing 91

OPINION AND ORDER Granting in Part and Denying in Part 54 Motion for Summary Judgment; and Granting in Part and Denying in Part 56 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Erick Peeples, et al.,
Plaintiffs,
v.

Civil Action No. 13-13858

City of Detroit, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
_______________________________/
OPINION & ORDER
Plaintiffs are eleven firefighters who were laid off by the City of Detroit during a
reduction in force. Plaintiffs were recalled to work 80 days after being laid off and the Union
successfully grieved their layoffs, securing a settlement under which the City agreed to a “makewhole” award of backpay for each Plaintiff. In this action, Plaintiffs assert a Title VII race
discrimination claim against the City, and against their Union. Discovery closed and all
discovery disputes have been resolved.
The matter is before the Court on motions for summary judgment brought by the City and
the Union. The motions have been fully briefed and none of the parties requested to file
supplemental briefs, or to submit any additional evidence, after the parties resolved their
discovery disputes.1
The Court finds that oral argument would not aid the decisional process. See Local Rule
7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore orders that the

1

The Court notes that Plaintiff did file a Notice of Supplemental Authority on January 25,
2017. (D.E. No. 90).
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motions will be decided upon the briefs.
For the reasons set forth below, the Court shall GRANT the motions for summary
judgment filed by Defendants, but shall DENY their requests for sanctions.
As to the City’s Motion, the Court concludes that the only Plaintiff who has exhausted
his administrative remedies such that he can pursue a Title VII claim against the City in this
action is Rivera. Nevertheless, the Court shall address the City’s remaining challenges as to all
Plaintiffs. The Court concludes that Plaintiffs have failed to present direct evidence to support
their claims. The Court also concludes that Plaintiffs’ have failed to establish a prima facie case,
under the circumstantial evidence approach, which includes a heightened burden in this
reduction-in-force case.
As to the Union’s Motion, it shall be granted because Plaintiffs cannot establish that the
Union breached its duty of fair representation to Plaintiffs, which Plaintiffs must do in order to
proceed with a Title VII claim against a union in the Sixth Circuit. The Union’s motion shall
also be granted because Plaintiffs have been reinstated and made whole, and other types of
damages claimed by Plaintiffs are unavailable as to the Union.
BACKGROUND
Plaintiffs filed this action on September 10, 2013. On October 29, 2013, this Court
issued an “Order Of Removal Of Action As A Pending Matter” (D.E. No. 4) because of the
bankruptcy stay pertaining to the City of Detroit.
On August 13, 2014, the City of Detroit filed a notice indicating that the bankruptcy stay
had been lifted. (D.E. No. 8).

2

Plaintiffs’ First Amended Complaint
On May 11, 2015, Plaintiffs filed a one-count First Amended Complaint, which is the
operative complaint. (D.E. No. 12).
There are eleven individual Plaintiffs in this action: 1) Erick Peeples; 2) Perry Anderson;
3) Vincent Fields; 4) Arnold Freeman; 5) Ralph Glenn, Jr.; 6) Jamal Jennings; 7) Lee Jones; 8)
Anthony McCloud; 9) Exander Poe; 10) David Rivera; and 11) Samuel Shack. Rivera is
Hispanic and the remaining Plaintiffs are black.
Each Plaintiff asserts a Title VII disparate-treatment race discrimination claim against
Defendants City of Detroit (“the City”) and Detroit Fire Fighters Association, Local 344, IAFF,
AFL-CIO (“the Union” or “DFFA”).
Plaintiffs allege that the applicable CBA provides that layoffs shall be done in
accordance with “Human Resources Department Rules XI and XIV which were in effect on July
1, 1977 . . .” (First Am. Compl. at ¶ 12).
Plaintiffs alleges that those rules define seniority to mean “total city seniority” and that
employees are to be laid off “in the inverse order of total city seniority.” The City denies those
allegations as untrue. (First Am. Compl. and City’s Answer at ¶ 13 & 14).
Plaintiffs allege that after the City announced that layoffs would take place in the City of
Detroit’s Fire Department, the City sent out one or more lists of the employees to be laid off,
which was according to total City seniority, and that Plaintiffs were not on the lists. (First Am.
Compl. at ¶ 22).
Plaintiffs allege that the Union objected to those layoffs, and “sent a letter to the City
setting forth its objections, falsely claiming that the proposed lay-offs violated” the CBA.

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(First Am. Compl. at ¶ 23). They allege that the City and the Union held a meeting about the
layoffs and that, after that meeting, the City “rescinded the original lay-off list and replaced it
with a lay-off list that reduced several Black or Hispanic firefighters,” including Plaintiffs, “who
had more City seniority than Caucasian firefighters” who were not on that list. (First Am.
Compl. at ¶ 25).
The First Amended Complaint indicates that each of the Plaintiffs were recalled to work
as firefighters on October 29, 2012. (First Am. Compl. at ¶¶ ). It states that, with the exception
of one Plaintiff who took work as a firefighter elsewhere (Anderson), each of the Plaintiffs was
reinstated, and grieved their layoff and had some backpay paid to them as part of the settlement
of their grievance (Peeples, ¶ 33; Fields ¶ 73; Freeman ¶ 93; Glenn ¶ 113; Jennings ¶ 133; Jones
¶ 153; McCloud ¶ 173; Poe ¶ 193; Rivera ¶ 213; and Shack ¶ 233).
Plaintiffs seek the following relief: 1) back pay and benefits lost due to the layoff; 2)
compensatory damages; 3) punitive damages; and 4) attorney fees, and interest. (First Am.
Compl., D.E. No. 12, at Pg ID 81).
The Scheduling Order And Discovery Disputes
On March 1, 2016, this Court issued the Scheduling Order in this matter. The Court
ordered, among other things, that discovery was to close on April 29, 2016.
The parties filed several discovery motions, which this Court referred to the magistrate
judge assigned to this case, beginning on January 28, 2016.
On April 18, 2016, Counsel for the Union sent Plaintiffs’ Counsel a letter asking
Plaintiffs to dismiss the claims in this action against the Union. (D.E. No. 58-51). That letter set
forth the Union’s position as to why Plaintiffs cannot prevail in this action. Among other things,

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the Union’s letter addressed damages, including the argument that Plaintiffs had been made
whole in terms of backpay, and arguments as to why Plaintiffs cannot recover other types of
damages they seek in this action.
The City Filed A Motion For Summary Judgment Following The Close Of
Discovery, Although Discovery Motions Were Still Pending Before The Magistrate
Judge, But Thereafter This Court Resolved All Discovery Disputes.
Following the close of discovery, the City filed a Motion for Summary Judgment (D.E.
No. 54) and the Union filed its own Motion for Summary Judgment. (D.E. No. 56).
After a hearing had been scheduled on the motions, and this Court began reviewing them,
this Court realized that there were discovery motions still pending before the magistrate judge.
This Court then issued an order adjourning the summary judgment hearing, pending rulings on
the discovery motions before the magistrate judge. (See 9/28/16 Text-Only Notice).
Thereafter, counsel for the parties requested that the Court hold a Status Conference to
discuss the outstanding discovery motions, a September 22, 2016 order the magistrate judge had
issued (that did not address the merits of the motion), and objections to same. At a October 11,
2016 Status Conference, this Court explored all of the outstanding discovery issues with the
parties and they resolved all of their disputes. Thus, this Court issued an order on October 16,
2016, withdrawing the reference to the discovery motions filed as Docket Entry Numbers 43, 52,
and 53, and set aside the magistrate judge’s September 22, 2016 order. (D.E. No. 86).
As discussed and agreed at the October 11, 2016 Status Conference, the Court
rescheduled the summary judgment hearing for January 26, 2017, and the parties submitted a
Stipulated Order wherein (D.E. No. 89) they stated that they had resolved all issues pertaining to
the discovery motions.

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The Relevant Facts Set Forth In The Parties’ Briefs
This Court’s practice guidelines, which are expressly included in the Scheduling Order
issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled
Counter-Statement of Disputed Facts. The counter-statement shall list in
separately numbered paragraphs following the order or the movant’s statement,
whether each of the facts asserted by the moving party is admitted or denied and
shall also be supported by appropriate citations to the record. The CounterStatement shall also include, in a separate section, a list of each issue of material
fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(D.E. No. 38 at 2-3).
In compliance with this Court’s guidelines, in support of its Motions for Summary
Judgment, the City filed a “Statement of Material Facts Not In Dispute” (D.E. No. 55) (“the
City’s Stmt.”). In response to that submission, Plaintiffs filed a “Counter-Statement of Disputed
Facts” (D.E. No. 70) (“Pl.’s Stmt. C”).
In support of its Motion for Summary Judgment, the Union filed a “Statement of Material
Facts Not In Dispute” (D.E. No. 57) (“the Union’s Stmt.”). In response to that submission,
Plaintiffs filed a “Counter-Statement of Disputed Facts” (D.E. No. 71) (“Pl.’s Stmt. U”).
Plaintiffs’ Counsel filed statements responding to both of the above statements by
Defendants. However, Plaintiffs’ Counsel certainly did not comply with either the letter or the
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spirit of the Court’s guidelines, which are intended to narrow the facts that are truly in dispute.
Throughout Plaintiffs’ statements, Counsel includes, and continues to restate, unnecessary
objections. Plaintiffs’ Counsel also denies various factual statements, even though Plaintiffs’
response indicates the statement is true. (See, e.g., Paragraph 4 of the Union’s Stmt. and Pls.’
Response to same; Paragraph 11 of the Union’s Stmt. and Pls.’ Response to same).
In any event, the relevant facts, established by the record evidence submitted by the
parties, are as follows.
The Union, DFFA, is the certified collective bargaining agent for the uniformed
firefighters of the City of Detroit Fire Department. (First Am. Compl., and City’s Answer to
same, at ¶ 5). At all pertinent times, the City and the Union were parties to a collective
bargaining agreement (CBA). (Union’s Stmt. and Pls.’ Stmt. U at ¶ 3).
Plaintiffs are eleven City firefighters and Union members that were affected by an
August 2012 reduction in force. (Union’s Stmt. and Pls.’ Stmt. U at ¶ 4). Rivera is Hispanic and
the remaining ten Plaintiffs are black. (Union’s Stmt. and Pls.’ Stmt. U at ¶ 5 & 6).
On June 20, 2012, the City notified the Union of an impending reduction in force.
(City’s Stmt. & Pls.’ Stmt. C at ¶ 2). This was the first RIF in the Detroit Fire Department
(“DFD”) since 2005. (Union’s Stmt. and Pls.’ Stmt. U at ¶ 11).
On June 20, 2012, the City sent the Union a letter that stated, in pertinent part:
In compliance with required notification and in an effort to keep you apprised of
reductions to your labor union, please see the attached list of position reductions.
As a result of these reductions, layoffs are anticipated. We anticipate that the last
day of work will be no later than July 20, 2012. Layoff notices shall be issued in
accordance with your Collective Bargaining Agreement.
(Ex. 3 to City’s Br.).

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In a letter dated June 29, 2012, the City notified the Union that City of Detroit Fire
Department “is reducing the number of DFFA positions by two-hundred and eighty-seven (287)”
and that “these reductions will result in actual layoffs of 164 positions.” (Ex. 4 to City’s Br.).
An August 2, 2012 Official Bulletin from the Office of the Fire Commissioner, however, advised
that “[d]ue to retirements and demotions of personnel in the Fire Fighting Division, the number
of layoffs has dropped” to “28 lay offs.” (Ex. 5 to City’s Br.).
The City announced that it would use City-Seniority, i.e., total City years of service
regardless of City departments, to determine the DFD layoff order. (Union’s Stmt. and Pls.’
Stmt. U at ¶ 13).
On July 30, 2012, the City gave the DFFA a RIF “matrix” or listing to show the intended
RIF employment actions, including demotions, transfers, and layoffs. (Union’s Ex. 11). That
matrix listed 29 firefighters who would be laid off, but did not include Plaintiffs as layoff
candidates. (Id.; Union’s Stmt. and Pls.’ Stmt. U at ¶ 16). The matrix submitted to the Court
does not identify the races/nationalities of those who would be laid off, demoted, or transferred.
Thereafter, in a letter sent on July 30, 2012, the DFFA urged the City to use DepartmentSeniority, ie., seniority only within the DFD, to determine layoff order. (Union’s Ex. 12;
(Union’s Stmt. and Pls.’ Stmt. U at ¶ 18). That letter stated that the lists created by the City
violate the CBA by not using Department Seniority. The letter included DFFA-created lists that
applied Departmental-Seniority, rather than City-Seniority, to the City-forcasted employment
actions. Those lists included Plaintiffs as candidates for layoffs. (Id.).
On July 31, 2012, the DFFA filed a “Class Action Grievance #17-12, Violation of
Reduction in Force” (Union’s Ex. 14). That grievance vaguely asserted that the City was

8

violating the CBA in how it was laying employees off and asked the City to cease and desist
from violating the CBA and “restore all members affected by illegal layoffs and demotions.”
(Id.). That grievance was “filed before anyone was actually laid off.” (Pls.’ Stmt. U at ¶ 22).
On August 2, 2012, the Union sued in Wayne County Circuit Court to enjoin the closing
of fire houses. (Pls.’ Stmt. U at ¶ 24). At around that same time, the City and the Union met
again to review the projected RIF. (Pls.’ Stmt. U at ¶ U 25).
On August 10, 2012, the City laid off Plaintiffs and 16 other firefighters, a total of 27
layoffs. (Pls.’ Stmt. U at ¶ 28; Union’s Exhibit 18). The layoff notices to those laid off
indicated the reason for the layoff was lack of funds. (Id.). The layoff notices do not identify the
races/nationalities of those laid off.
Thereafter, on August 14, 2016, the Union wrote a letter to each firefighter who was laid
off, including Plaintiffs, stating that the Union was doing everything it could do to hasten their
return. (Pls.’ Stmt. U at ¶ 33; Union’s Ex. 24).
In August and September of 2012, Plaintiffs and Union officers met several times. (Pls.’
Stmt. U at ¶ 35). In those meetings, some Plaintiffs’ challenged the Union’s reliance on
department-seniority and indicated they wished to file grievances regarding their layoffs. (Id;
Union’s Exs. 25 & 26). Plaintiffs and Union officers discussed the issue of how the layoffs
were supposed to be made under the CBA and rules. Union officers stated that they were
working on getting answers to the issue. (Id.).
There were disagreements between Union executive board members with respect to the
applicable seniority rules and the Union ultimately sought legal advice from counsel on the
issue. (Union’s Stmt. at ¶ 52-53)
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On September 18, 2012, the Union’s attorney sent the Union a non-confidential opinion
letter regarding seniority (‘the Seniority Opinion Letter”), wherein counsel stated “we believe
that ‘total City seniority’ is the contractually-required metric for determining the order of layoffs
and demotions attributable to a reduction in force, and no ‘past practice’ Invalidates this clear
procedure.” (Union’s Stmt. at ¶ 58; Union’s Ex. 33)
The Union claims that it gave the Seniority Opinion Letter to Plaintiffs immediately after
receiving it. (Union’s Stmt. at 62). Plaintiffs assert that it is unclear whether all Plaintiffs
received the letter, and claim it is unclear as to the timing of when the letter was distributed to
Plaintiffs. (Pls.’ Stmt. U at 62).
Plaintiff Shack testified that the Union told him and other Plaintiffs that they had checked
and been told that the Plaintiff’s position about seniority was right, and that they would work to
fix the problem, around September 18, 2012, the day the Seniority Opinion Letter was received
by the Union. (Shack Dep. at 171).
In any event, the Union advised its membership of its changed position within days of
having received the Seniority Opinion Letter. The meeting minutes for the Union’s September
24th and 25th regular general membership meetings reflect that:
DEMOTIONS/LAYOFFS: President McNamara explained how and why
demotions and layoffs were decided and implemented by the city. He further
explained how the DFFA, without the contractually obligated lists that were to be
provided, wrote a letter stating that layoffs were to be decided by departmental
seniority.
He went on to state this is incorrect and total city seniority is to be used in
determining layoffs and apologized to the membership. The DFFA will argue
that fact in grievance #17-12.
President McNamara further reports the DFFA requested/received a legal opinion
regarding the interpretation of language for demotion/layoffs. The attorney
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advised that total city seniority is the primary basis for reductions in force,
demotion and recall.
It is the DFD’s and the DFFA’s opinion that human resources did neither of what
was mentioned, but incorrectly applied a “3 year rule” to layoffs. This rule only
applies to demotions. We hope to resolve this matter as quickly as possible.
(Union Def.’s Ex. 16).
On October 5, 2012, the Union sent each of the Plaintiffs the same letter. (Union Def.’s
Ex. 36). Those letters from the Union stated:
On July 31, 2012, the DFFA grieved all layoffs and demotions of DFFA
members (grievance #17-12) that had been forcasted by the City. As written, our
grievance broadly captured any layoff and/or demotion that would violate the
DFFA collective bargaining agreement As such, that July 31 grievance captured
the individual grievances of anyone improperly laid-off or demoted on August 10,
2012.
So, if you grieved your layoff or demotion, it is included in our July 31
grievance. This is true even if you grieved after July 31. In other words, no
grievance that challenges an individual’s layoff or demotion has been rejected by
the DFFA.
To that end, if you have any evidence to support the DFFA’s reliance on
“total city seniority” in cases of layoffs and demotions “attributable” to a
reduction in force, please submit that to us as soon as possible.
(Id.) (emphasis in original). Thus, by October 5, 2012, the Union had changed its position and
was arguing that city-seniority was required and that layoffs based on departmental-seniority
violated the CBA. (Id.).
It is undisputed that each of the Plaintiffs were recalled to work as firefighters for the
City on October 29, 2012. (First Am. Compl. at ¶¶ 32, 52, 72, 92, 112, 132, 152, 172, 192, 212,
232).
Thus, Plaintiffs’ layoffs lasted a total of 80 days. (Pls.’ Stmt. U at ¶ at 72).
The Union and the City ultimately settled Grievance #17-12, filed by the Union. (See
Union Def.’s Ex. 40, “Settlement and Stipulated Award.”). That Settlement and Stipulated
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Award notes that the Union and the City had met, in order to negotiate a resolution of Grievance
#17-12, during the months of November and December of 2012, and January of 2013. (Id. at Pg
ID 2374). During those negotiations, the DFFA argued that Plaintiffs were among those
members who “were improperly laid off on August 10, 2012, in that City-wide, augmented
seniority was not used to determine the order of their layoff,” and sought “make-whole relief”
for them. (Pls.’ Ex. 15, D.E. No. 69-15 at Pg ID 3387-88). The Settlement and Stipulated
Award provides, in pertinent part:
1. IMPROPER LAYOFFS
A.

The City agrees to pay the following individuals back pay, at their pay rate
in effect when these individuals were laid-off, for the period August 10,
2012 up to and including October 29, 2012:

Perry Anderson
David Rivera
Arnold Freeman
Lee Jones
Ralph Glenn
Anthony McCloud

Samuel Shack
Eric Peeples
Vincent Fields
Jamal Jennnings
Exander Poe
Joseph Easterling

....
5. BACKPAY
A.

The City agrees that all back pay owed under this Agreement, regardless
of its nature, will be paid within one hundred and twenty (120) days from
January 25, 2013.

B.

The City further agrees that this backpay will include all items that would
make the individuals whole, including but not limited to, overtime pay and
medical costs/expenses incurred during their improper layoff.

(Union Def.’s Ex. 40 at Pg ID 2374 & 2377).
EEOC Complaints
Plaintiffs filed separate EEOC charges against the City and against the Union. Although
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the City’s motion raised failure to exhaust administrative remedies, Plaintiffs did not submit the
relevant documents concerning Plaintiffs’ EEOC charges and right-to-sue letters as exhibits to
their response brief. Nevertheless, the Court has gone through the voluminous exhibits filed by
Defendants, to locate the relevant documents.
Plaintiffs File This Action
In the First Amended Complaint, each of the Plaintiffs acknowledges that he “had some
of his back pay paid to him as part of the settlement of his grievance.” (See, e.g.,First Am.
Compl. at ¶ 33 ). Each Plaintiff then asserts that he “has suffered damages in terms of loss of
compensation, entitling him to the recovery of back pay” but does not allege any actual amounts
of back pay that were not paid. (Id. at ¶ 34).
ANALYSIS
I.

The City’s Motion For Summary Judgment
In its Motion for Summary Judgment, the City argues that it is entitled to summary

judgment, as to the claims of each of the Plaintiffs, on several grounds.
A.

Can Each Named Plaintiff Show That He Is Entitled To Bring A Title VII
Claim In This Action?

The City’s first argument is that all but one of the Plaintiffs are not entitled to bring the
Title VII claims in this action because they either did not file a timely EEOC charge or have not
received the requisite right-to-sue letter from the EEOC. The City notes that the filing of a
timely EEOC is a prerequisite to filing a Title VII claim in federal court. It also notes that there
is a narrow exception to that rule, called the single-filing rule. The City argues that in this case,
only four Plaintiffs filed timely EEOC charges (Peeples, Anderson, McCloud, and Rivera).
Three of those four persons, however, did not receive right-to-sue letters from the EEOC. Only
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one of those four persons who timely filed charges (Rivera) received a right-to-sue letter. The
City asserts that the single-filer exception should not be applied here, such that all the other
Plaintiffs could tag on to his EEOC charge, because Rivera’s claim is not sufficiently related to
the claims of the others. The City notes that Rivera claimed he was discriminated against
because he is Hispanic, while all of the other Plaintiffs are black. The City also asserts that other
facts sufficiently distinguish Rivera’s claim from the others, such as that Rivera was off on
medical leave at the time of the layoff.2 The City supported its arguments with citations to
applicable case law and references to the evidence that supports its arguments.
In response, Plaintiffs essentially ignore this argument. Plaintiffs’ entire “legal
argument” as to the City’s challenge consists of their re-stating the issue and then stating how
Plaintiffs answer it:
1. Does the “single-filer” rule under Title VII apply, so that each Plaintiff
demonstrate [sic] that he is entitled to bring suit under Title VII?
Defendant City says No.
Plaintiffs Yes
(D.E. No. 68 at Pg ID 2996). That’s it. Plaintiffs’ response brief contains no other reference to,
or analysis of, the City’s legal challenge. And Plaintiffs’ brief fails to provide the Court with
any of the documents that would be necessary for the Court to analyze this challenge, such as the
EEOC charges that Plaintiffs filed against the City and any right-to-sue letters that Plaintiffs
received in connection with their EEOC charges against the City. The only references made in
Plaintiffs’ brief opposing the City’s motion are: 1) a footnote stating that “Freeman did not file

2

As to Rivera, Plaintiffs’ Brief notes that he was injured at or near the layoff date and that
he went on workers compensation. (D.E. No. 68 at Pg ID 3015 n.4).
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an EEOC charge.” (D.E. No. 68 at Pg ID 3008 n.3); and 2) an assertion that “When Plaintiff
filed EEOC charges, they complained that DFFA had not accepted their individual grievances,”
and a citation to documents found in the Union’s exhibits, which are EEOC charges filed against
the Union – not the City.3
Despite Plaintiffs’ failure to respond to this argument or submit the relevant documents
needed to oppose the challenge, the Court has gone through the documents filed by the
Defendants, in order to determine when the various Plaintiffs filed their EEOC charges against
the City and whether any right-to-sue letters were issued as to the charges against the City.
Having done so, the Court concludes that the City’s argument has merit and that the only
Plaintiff who may proceed with a Title VII claim against the City in this action is Rivera.
“Exhaustion of administrative requirements is a precondition to filing a Title VII suit.”
Lockett v. Potter, 259 F. App’x 784, 785 (6th Cir. 2008). A private plaintiff under Title VII must
satisfy two conditions before commencing suit in federal court: 1) he must file timely
administrative charges with the EEOC, within 300 days of the alleged discrimination; and 2) he
must then obtain a “right-to-sue” letter from the EEOC. McPherson v. New York City Dept. of
Educ., 457 F.3d 211, 213 (2d Cir. 2006); EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448,

3

In Plaintiffs’ responses to the City’s Statement, Plaintiffs denied certain statements
relating to the EEOC charges against the City, and related right-to-sue letters, but then direct the
Court to documents that pertain to the EEOC charges against the Union – not the City. For
example, Paragraph 28 of the City’s Statement stated that “Plaintiffs Peeples, Anderson and
McCloud did not receive a Right to Sue Letter from the EEOC. (Ex. 30 to Def. COD Br.).”
Plaintiffs’ responded, “Deny. Under Rule 56, you must construe the facts in favor of the nonmoving party. The City incorrectly states that Plaintiffs Peeples, Anderson and McCloud did not
receive a Right to Sue Letter from the EEOC. [DN 58-44, PageID 2415 (Anderson), 2417
(Peeples), 2418 (McCloud)].” (Pls.’ Stmt. C at ¶ 28). But the cited right-to-sue letters identified
by Plaintiffs are letters issues as to the Plaintiffs’ EEOC charges against the Union – not the
City.
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456 (6th Cir. 1999); 42 U.S.C. § 2000e-5(e)(1).
The City is correct that the only Plaintiffs who filed timely EEOC charges against the
City are Anderson, Peeples, McCloud, and Rivera.
The alleged discriminatory layoffs occurred on August 10, 2012. 300 days from August
10, 2012, is June 6, 2013. The documents reflect two rounds of EEOC charges filed against the
City by Plaintiffs: 1) in May of 2013, Anderson, Peeples, McCloud, and Rivera filed EEOC
charges against the City; and 2) in July of 2013, the remaining Plaintiffs, except Freeman who
never filed one, filed EEOC charges against the City. The first group was timely, the second was
not. Rivera’s charge alleged discrimination on the basis of his national origin, Hispanic. The
remaining Plaintiffs, who are black, alleged that they were discriminated against based upon
their race.
As to the four Plaintiffs who filed timely EEOC charges against the City, three of those
persons (Anderson, Peeples, and McCloud) did not receive the requisite right-to-sue letter from
the EEOC
“Under Title VII, once an individual files a charge alleging unlawful employment
practices, the EEOC must investigate the charge and determine whether there is ‘reasonable
cause’ to believe that it is true.” EEOC v. Frank’s Nursery and Crafts, Inc., 177 F.3d at 455.
The EEOC issues what is known as a “right-to-sue letter” if: 1) it determines there is reasonable
cause to believe that Title VII was violated, but the EEOC was unable to obtain voluntary
compliance and has decided not to bring a civil action itself; or 2) if it concludes there was no
violation. Id.; see also 29 C.F.R. § 1601.28. In addition, if the claimant has not received a
reasonable cause determination from the EEOC within a certain amount of time, the claimant

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may request a right-to-sue letter. Id.
An “individual may not file suit under Title VII if she [or he] does not possess a ‘right to
sue’ letter from the EEOC.” EEOC v. Frank’s Nursery and Crafts, Inc., 177 F.3d at 456.
Here, after they filed their EEOC charges against the City, the EEOC closed out the
charges against the City filed by Anderson, Peeples, and McCloud by issuing them each an
“Acknowledgment of Settlement” that stated “[i]n view of the settlement agreement reached
between the Respondent and the person claiming to be aggrieved, wherein Respondent agreed to
pay all back pay owed to Charging Party, reinstate his seniority and reinstate him back to the
position, the [EEOC] will take no further action on behalf of the person claiming to be
aggrieved.” (D.E. No. 54-31 at Pg ID 1660, 1661, 1662).

There is no evidence in the record to

indicate that those three claimants received a letter-to-sue from the EEOC relating to their EEOC
charges against the City. As such, Anderson, Peeples, and McCloud cannot assert a Title VII
claim against the City in this action.
That leaves Rivera. The City concedes that Rivera’s EEOC claim against the City was
timely filed. Rivera’s EEOC charge asserted that the City wrongfully laid him off “due to my
national origin, Hispanic.” (D.E. No. 54-30 at Pg ID 1656). In his EEOC charge, Rivera
checked the box for “national origin” discrimination; he did not check the box for “race”
discrimination and his narrative includes no reference to racial discrimination. (Id.). The City
also concedes that Rivera received a right-to-sue letter from the EEOC in relation to his EEOC
charge against the City. (See D.E. No. 58-44, 6/11/13 right-to-sue letter). As such, Rivera can
proceed with his Title VII national origin discrimination claim against the City in this action.
In their brief opposing the City’s Motion for Summary Judgment, Plaintiffs suggest that

17

they should all be permitted to proceed with their claims under the single-filer exception. But
again, Plaintiffs’ brief simply states:
1. Does the “single-filer” rule under Title VII apply, so that each Plaintiff
demonstrate [sic] that he is entitled to bring suit under Title VII?
Defendant City says No.
Plaintiffs Yes
(D.E. No. 68 at Pg ID 2996). Thus, the remaining Plaintiffs wish to “piggyback” on Rivera’s
timely EEOC charge.
Given Plaintiffs’ complete failure to develop or support that argument, particularly in
light of the City’s arguments as to why the exception should not be applied (ie., different kind of
discrimination alleged, differing factual circumstances that surround Rivera’s layoff and his
medical issues, etc.), the Court concludes that the exception should not be applied here. As a
result, the Court concludes that the only Plaintiff who may proceed with a Title VII claim against
the City is Rivera.
B.

Assuming Arguendo That They Could All Assert Their Claims In This
Action, Can Plaintiffs Survive Summary Judgment On Their Title VII
Claim?

Plaintiffs First Amended Complaint alleges that the City subjected them to disparate
treatment on account of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. In its pending Motion for Summary Judgment, the City contends that it is
entitled to summary judgment as to all claims.
At the summary judgment stage, a plaintiff must adduce either direct or circumstantial
evidence to prevail on his discrimination claim. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.
2004). “The usual Title VII burden-shifting framework” applies to claims where a plaintiff

18

alleges that the employer acted adverse to him because of race. Copeland v. Regent Elec., Inc.,
499 F. App’x 425, 431 (6th Cir. 2012).
1.

Direct Evidence

If Plaintiffs can establish direct evidence of discrimination, then they survive summary
judgment and “need not go though the McDonnell Douglas burden-shifting analysis.” Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004).
“Direct evidence is evidence that proves the existence of a fact without requiring any
inferences.” Id. at 548. That is, “direct evidence is that evidence which, if believed, requires
the conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th
Cir. 1999). This Court has previously explained:
Evidence of discrimination is not considered direct evidence unless an unlawful
motivation is explicitly expressed. Id. For example, a facially discriminatory
employment policy or a corporate decision maker’s express statement to remove
employees in the protected groups is direct evidence. Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
Such evidence was found to exist in Johnson v. Univ. of Cincinnati, 215 F.3d 561
(6th Cir. 2000), where the university president allegedly said that “[w]e already
have two black vice presidents. I can’t bring in a black provost.” Those comments
were found to constitute direct evidence of discrimination because they required
no inference to conclude that racial consideration motivated, at least in part, the
employment decision at issue.
Direct evidence of discrimination was also found to exist in Diaz v. City of
Inkster, 2006 WL 2192929 (E.D.Mich. 2006), where the plaintiff alleged that he
was discriminated against on the basis of race. In that case, the plaintiff offered
testimony that the City Manager had said that there were some “members on the
council that wanted a black chief” and “when [the current police chief] retires,
you can bet the next chief is going to be black.” Id. at *9. The court concluded
that the comments of that decision-maker constituted direct evidence because they
expressed that race was a determining factor in the employment decision at issue.

19

This Court found direct evidence of age discrimination to exist in Parker v.
Charter Township of Redford, 2007 WL 1675219 (E.D.Mich. 2007). In that case,
the plaintiff presented evidence to establish that Mr. Handy was the
decision-maker with respect to the plaintiff’s termination. Plaintiff also submitted
evidence to establish that Mr. Handy, during a break from the township meeting
in which the plaintiff's position had been discussed, said that the plaintiff “is old,
he’s been here to[o] long, it’s time for him to go, he needs to get out and make
room for a younger man.” This Court concluded that the comments, which were
related to the employment decision at issue and made by the person who made the
decision, would constitute direct evidence of age discrimination if believed by the
jury.
Bhama v. Mercy Mem. Hosp. Corp., 2009 WL 2595543 (E.D. Mich. 2009).
Here, Plaintiffs contend that “there is direct evidence that the race of Plaintiffs – either
black or Hispanic – played a role in their layoffs.” (Pls.’ Br. at 18). Plaintiffs assert that Roger
Williams4 “stated, in his capacity as an HR Specialist, that Plaintiffs were laid off in order to
‘save the white boys’ because ‘DFFA did [not] want to lay those white boys off.’” (Pl.’s Br. at
18). But that portion of Plaintiffs’ brief does not contain any citation to the evidence that
establishes that Williams made those alleged statements.
In the facts section of their brief, Plaintiffs assert that “Williams told some Plaintiffs that
they were chosen for layoffs to ‘save the white boys’ and that DFFA “didn’t want to lay the
white boys off.’ [Exh. 30, Rivera Depo., p. 93; Exh. 26, McCloud Depo., p. 38].” (Pls.’ Br. at 6;
see also Pls.’ Br. at 11; see also Pls.’ Stmt. C at ¶ 14 & 16). In the cited portion of Rivera’s
deposition, Rivera testified as follows:
Q.
A.

Did you ever meet with the City?
No.

4

In its Brief, the City of Detroit discusses whether or not alleged statements made by
another person, Teresa Singleton (Sanderfer), could constitute direct evidence. (City’s Br. at
30). But Plaintiffs’ response brief only asserts that alleged comments by Williams constitute
direct evidence. (Pls.’ Br. at 17-19).
20

Q.
A.

Q.
A.
Q.
A.

Did you ever hear about Plaintiffs meeting with the City?
I did hear when Poe had met with Roger Williams and that Roger
Williams had mentioned to him that we were getting laid off to save the
white boys.
Do you know if anyone was with Poe?
No, I don’t.
Any other meetings that you heard or did Poe tell you anything else that
was said with Mr. Williams?
No.

(Pls.’ Ex. 30, Rivera Dep. at 93). In the cited portion of McCloud’s deposition, McCloud
testified as follows:
Q.

A.

Did Mr. Peeples tell you that Mr. Williams said anything about the layoffs
being – that there was any racial discrimination that happened during the
layoffs?
Mr. Poe told me that Roger Williams said to him that the DFFA didn’t
want to lay those white boys off.

(Pls.’ Ex. 26, McCloud Dep. at 38).
It is well established that hearsay evidence may not be considered on summary judgment.
Jacklyn, 176 F.3d at 927.
Plaintiffs’ Counsel makes a cursory assertion that Williams played a role determining
who would be laid off and, therefore, any statement made by Williams “is not hearsay and is
admissible at summary judgment.” (Pls.’ Br. at 18). Although no explanation for that assertion
is provided, Plaintiffs presumably assert that Williams’s statement would be admissible as an
admission of a party opponent.
But as the City notes in its Reply, the cited deposition testimony involves multiple levels
of hearsay. Neither Rivera nor McCloud testified that Williams made the alleged out of court
statements in their presence. Rather, they testified that Williams made the statements to Poe and
then Poe later told them about the statement. Moreover, based upon what Williams allegedly

21

said to McCloud, it appears that Williams could have been repeating what some unidentified
person at the Union said to him, adding yet another layer.
The Court rejects Plaintiffs’ assertion that direct evidence supports their discrimination
claims because the only evidence that Plaintiffs direct the Court to constitute inadmissible
hearsay. In addition, even if the statements were admissible, they do not appear to be “direct
evidence” (ie., that which requires no inferences) of a discriminatory motive on the part of the
City in any event.
2.

Circumstantial Evidence

Under the circumstantial evidence approach, a plaintiff must show the existence of facts
which create an inference of discrimination under the familiar McDonnell Douglas burdenshifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once a
plaintiff establishes such a prima facie case, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse action. If the employer articulates such a
reason, then the plaintiff has the burden of showing that the articulated reason is in reality a
pretext to mask discrimination. Skrjanc v. Great Lkakes Power Service Co., 272 F.3d 309 (6th
Cir. 2001).
a.

Prima Facie Case, With Heightened RIF Standard

The parties agree that to establish a prima facie case of race discrimination, a plaintiff
must generally show that: 1) he was a member of a protected class; 2) he suffered an adverse
action; 3) he was qualified for the position; and 4) he was replaced by someone outside of the
protected class or was treated differently than similarly-situated, non-protected employees.
The City asserts, and Plaintiffs do not dispute (see Pl.’s Br. at 20 & 23), that the fourth

22

element of the prima facie is heightened because this case involves a reduction in force.5
In order to prove the fourth prong in cases involving a workforce reduction, a plaintiff
must provide “additional direct, circumstantial, or statistical evidence tending to indicate that the
employer singled out the plaintiff” for layoff or discharge for impermissible reasons. Barnes v.
GenCorp., 896 F.2d 1457, 1465 (6th Cir. 1990); Geiger v. Tower Auto., 579 F.3d 614, 623 (6th
Cir. 2009); Copeland, 499 F. App’x at 431. The reason for this is because the most common
legitimate reason for the layoff or discharge of a plaintiff in a reduction in force situation is the
work force reduction. Geiger, 579 F.3d at 624. The guiding principle in a work-force-reduction
case is that the evidence must be sufficiently probative to allow a factfinder to believe that the
employer intentionally discriminated against the plaintiff because of race. Geiger, 579 F.3d at
624.
Here, the parties agree that Plaintiffs can establish the first three prongs of a prima facie
race discrimination case (i.e, member of protected class, qualified for position of firefighter, and
suffered an adverse action by virtue of being laid off for a period of 80 days). But the parties
disagree as to whether Plaintiffs can produce sufficient “additional direct, circumstantial, or
statistical evidence” in order to meet the fourth prong.
1.

Direct Evidence

As explained above, the Court concludes that Plaintiffs have not come forth with any
admissible direct evidence of discrimination. The only evidence identified by Plaintiffs as to the

5

Moreover, even if Plaintiffs disputed that this case involves a reduction in force,
Plaintiffs have failed to refute the record evidence submitted by the City that establishes that the
layoffs at issue were done in connection with a reduction in force. Copeland, 499 F. App’x at
432.
23

comments allegedly made by Williams is inadmissible hearsay and it is not direct evidence in
any event.
2.

Statistical Evidence

“Appropriate statistical data showing an employer’s pattern of conduct toward a
protected class as a group can, if unrebutted, create an inference that a defendant discriminated
against individual members of the class.” Barnes, 896 F.2d at 1466. In order to create such an
inference, “the statistics must show a significant disparity and eliminate the most common
nondiscriminatory explanations for the disparity.” Id. Both the methodology and the
explanatory power of the statistical evidence must be sufficient to permit an inference of
discrimination. Id. (citations omitted). In Barnes, the Sixth Circuit “caution[ed] that statistics
must show significant disparity and comment[ed] on what standard deviations and statistical
analyses other courts and panels [have] found sufficient.” Copeland, 499 F. A’ppx at 433.
Here, Plaintiffs have not presented any actual statistical evidence.
3.

Other Circumstantial Evidence

The third and final way that a plaintiff can attempt to proffer sufficient additional
evidence to meet the heightened fourth prong, is to offer other circumstantial evidence that could
allow a factfinder to believe that the employer intentionally discriminated against the plaintiff
due to race. In Barnes, the court explained that a plaintiff in an age discrimination case could
make such a showing by presenting evidence to show that the plaintiff “possessed qualifications
superior to those of a younger co-worker working in the same position as the plaintiff.” Barnes,
896 F.2d at 1466. “Alternatively, a plaintiff could show that the employer made statements
indicative of a discriminatory motive.” Id. Again, the “guiding principle is that the evidence

24

must be sufficiently probative to allow a factfinder to believe that the employer intentionally
discriminated” against the plaintiff because of race. Id.
Here, Plaintiffs have not made arguments based on their qualifications. And again, they
have not submitted any admissible evidence of the employer having made statements indicative
of a discriminatory motive.
What Plaintiffs did do in their brief is try to present what appears to be a “quasistatistical” argument that one could infer a discriminatory motive on the part of the City because
the impact of the City’s change in the way firefighters were selected for layoff had a
disproportionate impact on blacks and/or Hispanics. That is, Plaintiffs argue that the City knew
that to change the basis for determining layoff order (City versus departmental seniority) would
“improperly disadvantage minority firefighters” and that disproportionate impact on minorities
constitutes circumstantial evidence of race discrimination.
On July 30, 2012, the City constructed an initial matrix to show the intend RIF
employment actions, including demotions, transfers, and layoffs. That matrix included 29
firefighters who were going to be laid off in the RIF. At that time, the City was using cityseniority to determine layoff order. The Court will call this the First List. Plaintiffs were not on
that First List. But Plaintiffs have not provided the Court with evidence that shows the race or
nationality of the persons that were on that First List. Plaintiffs direct the Court to the Union’s
Exhibit 11 (D.E. No. 58-11) but that document does not list race or nationality of the various
employees listed.
Later, after the Union had argued that the layoffs should be based on departmentalseniority, the City changed the firefighters selected for layoff. On August 10, 2012, the City laid

25

off 27 firefighters. (Union’s Exhibit 18). The Court will call this the Second List. Plaintiffs
were among those 27 firefighters laid off. But the Union’s Exhibit 18, the layoff notices sent, do
not state the race or nationality of the persons laid off. So while the race/nationality of the 11
Plaintiffs is known, the Court does not know the race/nationality of the other 16 firefighters who
were on this list.
Plaintiffs argue that the First List consisted mostly of white firefighters and that the
Second List contained more minorities.
The main problem6 with Plaintiffs’ argument, however, is that Plaintiffs have failed to
provide the Court with evidence to establish the race or nationalities of the firefighters on the
two different lists who were selected for layoff. Without that, the Court cannot tell if the City
changing the basis for determining layoff order had a disproportionate impact on blacks or
Hispanics. And Plaintiffs have not even attempted to provide a statistical analysis to support
their argument.
The Court therefore concludes that Plaintiffs have failed to meet their heightened burden
of establishing a prima facie case of race discrimination in this workforce-reduction case.
C.

The City’s Motion Also Requests Sanctions

In the conclusion section of the City’s motion, the City states that it “is requesting
sanctions as it submitted a Rule 11 letter demanding that Plaintiff’s dismiss their unsubstantiated
claims.” (D.E. No. 54 at Pg ID 1393). The City’s motion did not include a determination of
sanctions as one of the issues to be determined. (Id. at Pg ID 1354).

6

Another problem is that the RIF also included demotions and transfers, not just layoffs,
so the Court cannot look at impact of layoffs on minorities in isolation, without also looking at
demotions and transfers made at the same time.
26

The Court denies the City’s request for sanctions, for several reasons. The City made its
request in the conclusion section of its brief. The Court also concludes that the City’s letter
(which is not a motion) fails to fully comply with the “safe harbor” provision of Fed. R. Civ. P.
11. Moreover, the Court would not be inclined to award sanctions under the circumstances
presented here even if the City has fully complied with the safe harbor provisions.
II.

The Union’s Motion For Summary Judgment
The Union argues that it is entitled to summary judgment because: 1) Plaintiffs cannot

establish that the Union breached its duty of fair representation; and 2) Plaintiffs cannot establish
that they are entitled to any damages against the Union in any event.
A.

Do Plaintiff’s Title VII Claims Against The Union Fail Because The Union
Discharged Its Duty Of Fair Representation?

The Union argues that under Sixth Circuit law, a plaintiff who sues a union under Title
VII must establish that the union breached is duty of fair representation.
In Wells, as in this case, the plaintiff brought a Title VII discrimination claim against her
union but did not bring a claim for breach of the duty of fair representation. Wells v. Chrysler
Group, LLC, 559 F. A’ppx 512 (6th Circ. 2014). In affirming the district court’s dismissal of
her Title VII claim, the Sixth Circuit noted that Plaintiff argued “that she did not bring a claim
for a breach of the duty of fair representation, but rather that her claims were for race and sex
discrimination under Title VII.” Wells, 559 F. App’x at 513. The Sixth Circuit found that
argument “meritless,” explaining:
The duty of fair representation incorporates a requirement that the union not act
discriminatorily. See Emswiler v. CSX Transp., Inc., 691 F.3d 782, 793 (6th Cir.
2012). Additionally, Title VII makes it unlawful for a union to deny fair
representation based upon race or sex. See 42 U.S.C. § 2000e-2(c)(1); Goodman
v. Lukens Steel Co., 482 U.S. 656, 668-69, 107 S.Ct. 2617, 96 L.Ed.2d 572
27

(1987). Indeed, district courts in this circuit—following the Seventh Circuit’s test
in Bugg v. International Union of Allied Industrial Workers of America, Local
507 AFL-CIO, 674 F.2d 595, 598 n.5 (7th Cir. 1982) – have required Title VII
plaintiffs to prove that a union breached its duty of fair representation. Beshears
v. Hennessey Indus., Inc., No. 3:12-00087, 2012 WL 6093457, at *2 (N.D. Tenn.
Dec. 7, 2012); Hout v. City of Mansfield, 550 F.Supp.2d 701, 727 (N.D. Ohio
2008). Therefore, a claim that the duty of fair representation was breached on
account of discrimination and a claim of discrimination in failing to fairly
represent the employee are essentially the same. Other courts have recognized this
commonality in similar cases. See Agosto v. Corr. Officers Benevolent Ass’n, 107
F. Supp.2d 294, 304 (S.D. N.Y. 2000) (collecting cases).

Wells, supra, at 514.
Thus, district courts within the Sixth Circuit have concluded that, under Wells, a plaintiff
must establish a breach of the duty of fair representation in order to proceed with a Title VII
discrimination claim against the union. Swanson v. UAW Int’l Union, 2015 WL 5168579 at * 4
(E.D. Mich. 2015, J. Cleland) (based on Wells, “it appears that a plaintiff” must establish a
breach of fair duty of representation to establish a Title VII claim against union).
Without citation to any Sixth Circuit to support the assertion, and with no discussion of
Wells, “Plaintiffs submit that there is no DFR analysis required for violations of Section
703(c)(3) of Title VII.” (Pls.’ Br. at 18).
In Wells, the Sixth Circuit has expressed the view that a plaintiff must establish a breach
of the duty of fair representation in order to proceed with a Title VII discrimination claim against
his or her union.
Plaintiffs have made no attempt to show how they can establish that the Union breached
its duty of fair representation under the facts presented in this case.
Within the Sixth Circuit, courts follow the Seventh Circuit’s test in Bugg for evaluating
such claims (see Wells, supra, at 514; Swanson, supra at *5), which requires the plaintiff to
28

establish: 1) that the employer committed a violation of the collective bargaining agreement with
respect to the plaintiff; 2) that the union permitted that breach to go unrepaired, thus breaching
its own duty of fair representation; and 3) that there was some indication that the union’s actions
were motivated by racial animus. Bugg, 673 F.2d at 598 n.5.
Again, Plaintiffs have made no attempt to explain how they believe they could make the
requisite showing under the circumstances of this case. The Union’s brief contains a cogent
explanation of why Plaintiffs cannot establish that the Union breached its duty of fair
representation under the circumstances presented here.
Simply stated, the Union initially took the position that the layoffs should be based on
departmental seniority under the CBA. But after Plaintiffs objected, and after further discussion,
the Union hired counsel to review the legal issue (i.e, whether the layoffs were to be made based
on city-seniority or departmental-seniority). After engaging counsel and getting a legal opinion,
the Union then sided with Plaintiffs’ interpretation – that city-seniority was controlling.
Moreover, Plaintiffs were reinstated and the Union successfully grieved Plaintiffs’ layoffs,
securing an award of make-whole backpay for Plaintiffs.7 Thus, the Court fails to see how
Plaintiffs could possibly satisfy the second element above – showing that the union permitted a
breach of the collective bargaining agreement “to go unrepaired,” thus breaching its duty of fair
representation.
Accordingly, the Court concludes that the Union is entitled to summary judgment.

7

Plaintiffs have not offered any evidence to show that they were not actually paid all the
backpay they were awarded. In addition, even if that were not the case and the City failed to
make the correct payment, the Union still secured the settlement agreement that entitles Plaintiffs
to the make-whole backpay. Plaintiffs have not alleged that they ever asked the Union to pursue
a breach of settlement claim.
29

B.

Do Plaintiffs’ Damages Claims Fail Because Plaintiffs Have Been Reinstated
And Made Whole, and Because Certain Damages Are Unavailable?

It is undisputed that Plaintiffs were reinstated (or in the case of Anderson, offered
reinstatement). Thus, Plaintiffs are not seeking reinstatement. Rather, Plaintiffs’ First Amended
Complaint asks the Court to award them “back pay,” “compensatory damages,” and an award of
“punitive damages” against the Union. (First Am. Compl. at 25). The body of the First
Amended Complaint seeks damages for alleged emotional distress. (See e.g., First Am. Compl.
at ¶ 35).
In its motion, the Union asserts, as an additional ground for entry of summary judgment
in its favor, that Plaintiffs are seeking various types of damages to which they are not entitled as
a matter of law.
First, the Union asserts that because Plaintiffs have already received “make-whole”
backpay, they cannot obtain an award of backpay in this action. (Union’s Br. at 22). (quoting
Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6th Cir. 1988) as explaining that backpay is
“presumptively favored as a make-whole remedy.”).
Second, the Union’s motion asserts that Plaintiffs’ request for emotional distress damages
also fails as matter of law, stating:
Plaintiffs seek compensatory damages, i.e., damages for emotional distress. (Ex.
1). But, as a matter of law, Plaintiffs are not entitled to compensatory damages
because the DFFA acted responsibly and in good faith. Stated another way, the
DFFA did not act with the requisite “extreme and outrageous” conduct necessary
to recover emotional damages.” Nitzsche v. Stein, Inc. 797 F.Supp. 595, 599
(N.D. Ohio 1992) (damages for emotional distress can only be granted against a
union for violating the DFR if the union’s conduct was “extreme and
outrageous.”).
(Union’s Br. at 22).

30

Third, the Union asserts that “[a]s a matter of law, Plaintiffs cannot recover punitive
damages. Wilson v. Int’l Bhd. of Teamsters, 83 F.3d 747, 754 (6th Cir. 1996), citing IBEW v.
Foust, 442 U.S. 42, 52 (1979) (punitive damages are not available against a union for a DFR
breach).” (Union’s Br., D.E. No. 56 at Pg ID 1822).
Notably, in responding the Union’s Motion for Summary Judgment, Plaintiffs ignored the
Union’s legal arguments regarding damages.
Buried in one of the facts sections of their brief, Plaintiffs asserted that the Union failed
to provide a proper breakdown of the backpay calculations, directing the Court to Docket Entry
No. 66. Plaintiffs asserted that they “cannot determine that all Plaintiffs received their full
portion of backpay.” (Id. at Pg ID 3326-27). Docket Number 66 was Plaintiff’s Reply Brief,
made in support of Plaintiff’s Motion to Compel filed as Docket Entry No. 53.
But the remainder of Plaintiffs’ brief ignores all of the Union’s arguments concerning
damages and fails to provide any proper basis for the Court to reject the Union’s damages
arguments. That is, Plaintiffs’ statement of the issues (see Pls.’ Br., D.E. 69 at Pg ID 3312-13),
and the argument section of their brief (Id. at Pg ID 3327-3336) fail to recognize or address any
of the Union’s properly-supported challenges relating to damages.
If, at the time they responded to the Union’s motion, Plaintiffs needed additional
discovery from the Union before responding to the damages arguments, then Fed. R. Civ. P.
56(d) afforded Plaintiffs a recourse:
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify it opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declaration or to take additional discovery;
31

or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Plaintiffs did not file such an affidavit or declaration, nor did they ask the
Court for any such relief. Rather, Plaintiffs simply filed their response, ignoring the Union’s
damages arguments.
In addition, in its Reply Brief, the Union stressed Plaintiffs’ utter failure to address any of
its damages arguments.
Despite Plaintiffs’ failure to ask the Court to defer ruling on the motions until they were
provided with the discovery they claimed had not been provided regarding backpay calculations,
this Court deferred ruling on the motions on its own.
As of October 17, 2016, all of the discovery disputes were resolved, and that includes the
Union having produced all of the requested information at issue in Plaintiff’s Motion to Compel
filed as Docket Entry No. 53) (See 10/16/16 Stipulated Order Resolving Remaining Discovery
Motions and Objections, D.E. No. 89 at Pg ID 4176, “Plaintiffs’ Motion to Compel Defendant
DFFA to Produce [53] is mooted and resolved because Defendant DFFA has produced the
requested information”). The parties were notified that this Court intended to hold the hearing
on the pending summary judgment motions on January 26, 2107. (See 10/12/16 Hearing Notice,
D. E. No. 86). That was three months ago. Yet Plaintiffs’ have not sought to file a supplemental
brief responding to the damages arguments or asking the Court to consider any evidence that was
not included at the time they filed their response.
The Court shall grant summary judgment in favor of the Union because Plaintiffs’ have
been reinstated and awarded make-whole backpay relief in connection with the Union-pursued
grievance settlement, and the remaining damages are unrecoverable against the Union.
32

C.

Should The Union Be Awarded Its Costs And Attorney Fees?

The Union’s motion also asks the Court to award it is cost and attorney’s fees,
presumably under Fed. R. Civ. P. 11, given that it directs the Court to the Union’s Exhibit 51, a
letter to Plaintiffs’ Counsel under Rule 11.
The Court declines to impose sanctions. As a threshold matter, it does not appear that
the Union fully complied with Rule 11’s “safe harbor” provision.8 Moreover, even if it had, the
Court would not impose sanctions under the facts and circumstances presented here.
As noted above, the Court concludes that the Union has the better argument as to the
Union’s first issue presented in its motion. That is, that under existing Sixth Circuit law,
Plaintiff has to show that the Union breached its duty of fair representation in order to prevail on
its claim and that is has not shown it can do so here. While Plaintiffs did not discuss or try to
distinguish Wells, Plaintiffs did come forth with some limited argument as to why they do not
believe they should have to establish a breach of the duty of fair representation (ie., because the
statute does not contain that requirement.) Thus, this Court does not conclude that Plaintiffs
were frivolous in their legal position such that sanctions should be imposed.
This Court also declines to impose sanctions on the ground that Plaintiffs’ position on the
second issue was frivolous. Although the Union told Plaintiffs’ Counsel early on that their
position was that Plaintiffs had received all backpay they were due, Plaintiffs claimed that they
needed more information in order to determine whether they had actually received all backpay
they were entitled to under the grievance settlements. Unfortunately, because of the delays

8

By its terms, Rule 11’s safe harbor provision requires that a “motion” for sanctions be
served on the opposing party at least 21 days before the motion is filed. The Union directs the
Court to a letter that was sent to Plaintiff’s counsel concerning Rule 11, not a motion.
33

caused by the way that the magistrate judge handled the discovery motions assigned to her, those
discovery disputes were not resolved until after the summary judgment motions had been
briefed. This Court is not in a position to say that Plaintiffs lacked a good faith belief that they
had not been paid all that was owed to them when they filed this action or when they responded
to the pending motion.
CONCLUSION & ORDER
IT IS ORDERED that the City’s Motion for Summary Judgment is GRANTED to the
extent that the Court grants summary judgment in favor of the City as to Plaintiffs’ claims. The
motion is DENIED to the extent that the Court denies the City’s request for sanctions.
IT IS FURTHER ORDERED that the Union’s Motion for Summary Judgment is
GRANTED to the extent that the Court grants summary judgment in favor of the Union as to
Plaintiffs’ claims. The motion is DENIED to the extent that the Court denies the Union’s
request for sanctions.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: January 26, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
January 26, 2017, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

34