Edmonds v. Operating Engineers Local 139

Filing 29

ORDER granting 16 Motion to Dismiss plaintiff's Title VII claim with prejudice; Plaintiff's state law breach of contract claim is DISMISSED without prejudice. 20 Motion to Strike is granted . 23 Motion to Strike and 25 Motion for Leave to File denied as moot. Clerk of court directed to enter judgment in favor of defendant on plaintiffs federal claim and close this case. Signed by Chief Judge Barbara B. Crabb on 7/17/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - FR AN K L IN C. EDMONDS, ORDER Plaintiff, 08-cv-644-bbc v. O P E R A T IN G ENGINEERS LOCAL 139, D efendan t. - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - T his is the second of two civil actions for monetary relief under Title VII of the Civil R ights Act of 1964 in which plaintiff Franklin Edmonds alleges that he has been discrim inated against by his union, defendant Operating Engineers Local 139. Also, plaintiff alleges a state-law breach of contract claim against defendant. He is proceeding pro se.

D efendan t has moved to dismiss plaintiff's Title VII claim pursuant to Federal Rule of Civil Pro cedure 12(b)(6). On January 22, 2009, this court granted defendant's motion to present certain d ocu m e nts outside the pleadings without converting the motion to dismiss into a motion for sum m ary judgment. These are docket sheets and documents submitted in previous cases filed in this court and in the Eastern District of Wisconsin in which plaintiff sued defendant. From the facts contained in plaintiff's complaint as well as the documents submitted by 1

d efen dan t, I conclude that plaintiff's Title VII claim must be dismissed under the doctrine of claim preclusion. Further, I will not exercise supplemental jurisdiction over plaintiff's state-law claim because I am dismissing his Title VII claim. Before discussing the motion to dismiss I will address several preliminary motions filed by the parties. First, defendant has filed a motion to strike from the docket a copy of a January 1, 2009 letter plaintiff sent to defendant. The letter, dkt. #15, was sent by plaintiff to the court and docketed even though it did not bear a case number and is not a m otion or other paper related to the case at hand. Because it appears that the letter was do cketed inadvertently, I will grant defendant's motion to strike it from the docket. Also, plaintiff has filed motions to present documents outside the complaint and to strike the copy of the consent decree defendant attached to its brief because it is " i n c o m p le t e . " He wishes to replace it with a copy attached to his motion to present

do cum ents outside the complaint. Plaintiff seeks to have more than 50 other documents con sidered with the motion to dismiss. These documents range from court documents in p lain tiff's earlier Eastern District of Wisconsin cases to a copy of plaintiff's cellular phone bill. I will deny these motions as moot. Even if I considered them and replaced defendant's version of the consent decree with plaintiff's, nothing in those documents would affect the an alysis of plaintiff's claims. Turning to the substance of plaintiff's complaint, I draw the following facts from the com plaint as well as public records I permitted defendant to submit from outside the record. 2

FA CT S A. Current Case P lain tiff Franklin Edmonds is a member of defendant Operating Engineers Local 139. H e was involved in previous Title VII litigation against defendant, which culminated in a con sent decree under which the parties operated. At an unspecified time, plaintiff was laid off from his job with Mainline Sewer and W ater Construction Company. He checked in with defendant's District A and B union h alls. On November 7, 13, 21 and 27, 2006, defendant's dispatcher told plaintiff his position on the out-of-work list. His position "fluctuat[ed]" during that time period.

Plaintiff called Dennis Luciani, defendant's president, to discuss this problem, and then it s to p p e d . The dispatcher was removed from his position, a different employee began

han dling the job referral list and plaintiff's position on the out-of-work list started to fluctuate again. At some point, Guy Yuker became the new dispatcher, but plaintiff's position on the o ut-o f-w o r k list continued to fluctuate. On January 16, 2007, plaintiff wrote Yuker, asking ab ou t his "numbers fluctuating" and whether people of color were being dispatched during the winter. Plaintiff requested copies of the out-of-work list from October 26, 2006 to January 16, 2007. Yuker declined plaintiff's request for records, stating that defendant's po licy was not to provide copies of the out-of-work list or other referral hall records to its m em b e r s in an effort to prevent contractors and members from circumventing its non3

d iscrim in ato ry referral procedures.

He added that Carin Clauss, the court-appointed

m onitor for the consent decree entered into in previous Title VII litigation between the p arties, had expressed her agreement with this policy and has refused to provide copies of the out-of-work list to plaintiff. Yuker stated that any concerns plaintiff had should be directed to Clauss because she is the court-appointed monitor. O n January 26, 2007, plaintiff called Clauss and asked her whether she had any cop ies of the out-of-work list. Clauss said she did not. He told her he would be filing a co m p lain t with her about defendant's retaliating against him by manipulating his name on the out-of-work list. He requested from Clauss copies of the out-of-work list from October 26 , 2006 to January 28, 2007 and all of her findings concerning his placement on those lists. In a January 28, 2007 letter to Clauss, plaintiff stated that defendant was violating its con stitution and bylaws by denying him copies of the out-of-work list. M o re than two weeks passed before Clauss began to investigate his complaints. On Februa ry 7, 2007, she visited the District A union hall for only one hour, stating that a sno w storm kept her from staying longer, but that Yuker had faxed her what she needed to investigate her complaints. O n February 12, 2007, plaintiff wrote to District Judge Charles N. Clevert Jr., the judge presiding over the case in which the consent decree had been entered. Plaintiff stated that defendant was retaliating against him by manipulating his name on the out-of-work list, a n d that Clauss refused to show him any documents regarding her findings after she 4

in vestigat e d his complaint. He accused Clauss of violating defendant's constitution and bylaw s by refusing to provide plaintiff copies of the out-of-work list. In a second letter dated Februa ry 12, 2007, plaintiff requested that Clauss give him all of her findings from her investigation of his complaint. Judge Clevert denied this request, but Clauss gave plaintiff a summary of her findings dated February 12, 2007. However, the summary included "no job classifications, no out-of-work lists, no dispatch forms and no fax requests." O n February 23, 2007, plaintiff met with Clauss concerning his complaint and her findings. Clauss refused to show him her findings or give him copies. She did state that she saw that someone had added Districts C and D to plaintiff's out-of-work status report. Plaintiff asked her whether she had investigated this, since she was aware that he had worked on ly out of Districts A and B. She said she had not investigated because the addition did n o t pertain to his complaint. In response to a question, she said she had never seen a w ritten policy stating that defendant would not share the out-of-work lists with members. P la i n tiff stated further that "when [defendant's counsel] stated this policy to Charles N. C levert Jr. in court, and that [Clauss] agrees to this policy, at no time in front of this Judge did you state that you'd never seen this policy or agreed to it." On March 19, 2007, plaintiff went to the District B union hall and asked the dispatcher whether he could see the out-of-work list for that week. The dispatcher refused to show the list to plaintiff until after she made a phone call. Plaintiff began copying names an d job classifications off the list. Plaintiff left but later returned to finish copying the list. 5

R yan Oehlhof, the District B office manager, came out from the back of the office, told plaintiff he would not be allowed to continue to copy the out-of-work list and took the list aw ay from him. Plaintiff left the union hall. Later that day, plaintiff called the union hall an d spoke with Oehlhof. Plaintiff asked him whether he would fax him a copy of the policy stating that union members are not allowed to copy the out-of-work list. Oehlhof said he w ould send him a copy. The same day, plaintiff sent Oehlhof a written request for the p o li cy . O n March 21, 2007, plaintiff sent a second written request to Oehlhof for a copy of th e policy. That afternoon, plaintiff received a fax from Oehlhof. Attached was a copy of page 8 of the union's non-discriminatory referral procedures section 9(B) and a list of all peo ple who had received a copy of the fax. (A copy of this fax attached to plaintiff's com plaint shows that the procedure stated, "Each referral office shall post in a public place on its premises a current copy of the out-of-work register on a weekly basis. Copies of the o u t -o f-w o rk registers will NOT be provided and no photographing, videotaping or o th er duplication of the out-of-work register will be permitted." o r i g i n a l. ) ) Plaintiff called Terrence E. McGowan, the District A business manager, and Charles W arn er , the District C manager, and asked them their opinions regarding Oehlhof's fax. On March 23, 2007, plaintiff received McGowan's response, in which he stated that he and L uciani agreed "100%" with Oehlhof's message. Plaintiff called Luciani and asked him to 6 (Emphasis in

"sp eak for himself" regarding section 9(B). Luciani faxed plaintiff a response on April 3, 20 07 (plaintiff does not explain what Luciani stated in his response). Also, plaintiff called Clauss about Oehlhof's fax. In a March 23, 2009 response, Clauss stated that plaintiff insisted that the consent decree gave him the right to a personal co p y of the out-of-work list for Districts A and B. Plaintiff has never said that the consent d ecree gave him that right. Rather, he has stated being a member of the union in good stan din g gave him the right to a copy of the list. Counsel for defendant has told state and federal judges as well as a "civil rights bureau director" that the policy of not releasing its outof-w ork list has been in place since 2003. However, this policy does not exist.

B. Previous Litigation O n August 12, 1997, a group of plaintiffs, including plaintiff Edmonds, filed a class action in the Eastern District of Wisconsin, case no. 97-cv-857, alleging that defendant had violated Title VII by, among other things, engaging in the manipulation of its job referral b oo k. They contended that this manipulation resulted in discrimination against women, African-Am ericans, Hispanics and Native Americans. In an order dated June 28, 2002, the cou rt approved a consent decree and dismissed the case. The consent decree was to remain in effect for four years. It created job referral processes and established a court-appointed m onitor to oversee the implementation of the terms of the decree. It provided that, if at an y time during that four-year period a class member thought that the decree had been 7

violated, that class member could file for relief with the court. The parties selected Carin C lauss as the monitor. Plaintiff filed a complaint in the Eastern District of Wisconsin on May 16, 2006, case no . 06-cv-592, alleging that defendant had violated the consent decree by continuing to m an ipulate its job referral book to his exclusion. Among other claims against Clauss, p lain tiff alleged that she was not monitoring defendant adequately and that she was violating her duties as consent decree monitor. Plaintiff's complaint included allegations that Clauss allow ed defendant to deny him copies of the out-of-work list, which enabled it to manipulate job referrals. The court construed the complaint as a motion in case no. 97-cv-857 to reopen the case and enforce the consent decree. Also, the court directed Clauss to submit a report in support of her contention that she had complied with her duties as the consent decree m o n i to r . O n September 1, 2006, the court held a hearing on plaintiff's motion. The court accep ted Clauss's report, which included her reasons for believing that it was appropriate for defendan t to refuse plaintiff's request for a personal copy of the out-of-work list. Clauss n o ted that there were two reasons for not circulating the list: (1) defendant did not want con tractors to have access to the list because they could use that information to request outof-w ork members they preferred (requests that defendant was contractually obligated to grant) rather than be assigned members at the top of the list; and (2) the out-of-work list was only marginally useful in ascertaining whether there was compliance with job referral 8

pro cedures, because the list itself did not include members' skill types and levels, which facto red into referrals. Clauss concluded there was no statistical evidence of discrimination in the referral process. T he court ordered plaintiff to submit by October 2, 2006, a more definite written statem ent of alleged current violations of the consent decree and to identify with p articu larity the evidence supporting his claims. Plaintiff submitted his response on

S e p te m b er 28, 2006. The response focused on allegations that Clauss had violated the consent decree in various ways in the years 2003-2005, but included allegations that defendan t had denied plaintiff copies of the out-of-work list and that defendant's counsel had stated incorrectly that since 2003 it was defendant's policy not to give out copies of the list. The court received replies from defendant and Clauss. The court held a hearing on plaintiff's motion on November 13, 2006. Clauss repo rted that she believed defendant had substantially complied with the consent decree, and she recommended that the decree should expire. The court found that plaintiff had failed to produce evidence of violations with the requisite specificity. It asked defendant w hether it would agree to extend the consent decree for the limited purpose of giving class m em b ers a final opportunity to contact Clauss regarding complaints about the operation of the referral system over the last 60-90 days. Defendant agreed. On December 5, 2006, plaintiff submitted a letter reiterating various allegations of w ron gdo ing by defendant and Clauss, including the allegation that they had denied him 9

cop ies of the out-of-work list. On January 9, 2007, Clauss submitted an addendum to her final report that addressed the final notice mailed out to class members by defendant. In the addendum , Clauss stated that she "continue[s] to believe that there is no evidence that the U nio n has not fully complied with the terms of the Consent Decree," and again recom m ended that the decree be allowed to expire. O n February 21, 2007, Clauss submitted to the court a copy of a letter she wrote to plaintiff replying to a January 29, 2007 complaint he sent to her. Clauss explained that she did not see her role as monitor as one requiring her to collect documentation and turn it over to union members so they could initiate lawsuits. She went on to set out in detail instances w hen plaintiff had alleged that job referrals were manipulated and she explained why those referrals complied with the consent decree. On March 22, 2007, plaintiff filed a motion for removal of Clauss as the courtapp oin ted monitor. On March 26, 2007, Clauss filed a copy of a letter she wrote in response to another complaint faxed to her by plaintiff on March 21, 2007. In that letter, Clauss referred to plaintiff's correspondence with Oehlhof, and explained her reasons for not pro viding plaintiff copies of the out-of-work list, including defendant's referral procedures, w hich prohibited defendant from providing copies of the list to members and prohibited m em b ers from duplicating the list. Clauss stated it was her hope "that we will have a ruling from the Court on this issue soon, as it continues to be an area of disagreement." On March 30, 2007, the court issued an order denying plaintiff's motions to enforce 10

the consent decree and to remove Clauss. The court noted plaintiff's claims, including his claim that he was denied copies of the out-of-work list. It noted also the multiple filings by plaintiff and Clauss addressing plaintiff's continuing complaints. The court ruled: A s stated at the hearing held on November 13, 2006, the court found that Edmonds failed to meet his burden of proving with specific evidence that defendan t violated the consent decree. Since that finding, the court has given Edm onds numerous opportunities to provide the court with particular evidence of violations by the defendant. Edmonds, however, has failed to do so and his motions and responses still contain only blanket allegations of violations, none of which go to the heart of the defendants' duties under the consent decree. Nor has Edmonds provided the court with any evidence that the monitor has failed to adequately monitor the defendant. Because the court c a n find no substantive violation of the consent decree by the defendant, or credible evidence that the monitor materially breached her duties under the con sent decree, it will deny Edmonds' motion to enforce the consent decree. T he court ordered that the consent decree was expired and closed the case.

O PIN IO N U n d e r Fed. R. Civ. P. 12(b)(6), a claim or entire complaint may be dismissed for failure to state a claim upon which relief can be granted. Although a plaintiff need satisfy only a liberal notice pleading standard, Gray v. Dane County, 854 F.2d 179, 182 (7th Cir. 19 88 ), its claim will be dismissed under Rule 12(b)(6) "when the allegations in a complaint, how ever true, could not raise a claim of entitlement to relief," Bell Atlantic Corp. v. Tw om bly, 550 U.S. 544, 558 (2007). In making this determination in this case, the court m ust construe the complaint liberally because plaintiff is litigating this action pro se. Haines

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v. Kerner, 404 U.S. 519, 521 (1972). This is the second of two Title VII cases filed by plaintiff against defendant. In the first case, I granted defendant's motion to dismiss plaintiff's claim that defendant conspired w ith employers and manipulated job referrals to deny him work because his claims were b arred by the doctrine of claim preclusion. Edmonds v. Operating Engineers Local 139, 08cv-567 -bbc, decided June 1, 2009. In his current complaint, plaintiff frequently discusses a lle g a t io n s again non-parties, such as the court-appointed monitor, and it is difficult to ascertain the precise contours of his claims. The crux of his complaint is that defendant discrim inated against him by refusing to provide him with copies of the out-of-work list, en ab lin g it to manipulate job referrals. For reasons similar to those I set out in case no. 08cv-567-bbc, I must grant defendant's motion to dismiss his Title VII claim under the d octrin e of claim preclusion. U nd er that doctrine, a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action. Allen v. McCurry, 4 4 9 U.S. 90, 94 (1980). In general, "[t]he doctrine of res judicata (claim preclusion) requir es litigants to join in a single suit all legal and remedial theories that concern a single tran sactio n ." Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235, 236 (7th Cir. 1997). The three requirements of claim preclusion under federal law are (1) an identity of parties or their privies; (2) an identity of causes of action; and (3) a final judgm ent on the merits. Central States, Southeast and Southwest Areas Pension Fund v. 12

H unt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir. 2002). When these elements are satisfied, the judgment in the earlier suit bars further litigation of issues that were either raised or could have been raised therein. Kratville v. Runyon, 90 F.3d 195, 197-98 (7th Cir. 19 96 ). I conclude that all three elements of claim preclusion are met in this case. First, as to an identity of parties, there is no dispute that plaintiff sued defendant in Eastern District of Wisconsin case no. 06-cv-592, and that his claims were construed as a motion to enforce the consent decree in case no. 97-cv-857, a case in which plaintiff sued defendant. The other tw o elements require further discussion. An identity of causes of action exists when both the prior and subsequent claims arise o ut of the same transaction, defined for claim preclusion purposes as "a single core of o p erative facts giving rise to a remedy." Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593 (7th Cir. 1986). "[T]wo claims are one for purposes of [claim preclusion] if they are based on the same, or nearly the same, factual allegations." Herrmann v. Cencom Cable A sso c., Inc., 999 F.2d 223, 226 (7th Cir. 1993) (citations omitted). In other words, "a subsequ ent suit is barred if the claim on which it is based arises from the same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment." Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir. 1999). I conclude there is an identity of causes of action between plaintiff's current claim and a claim brought in his earlier cases. Plaintiff's claim that defendant manipulated job referrals 13

in part by withholding copies of the out-of-work list was a longstanding grievance. As Clauss no ted in her September 1, 2006 report, plaintiff's insistence that he should be entitled to co p ies of the out-of-work list goes back to at least July 2003. Both cases involve a series of events in which defendant repeatedly denied plaintiff copies of the out-of-work list. P lain tiff's current claim centers around defendant's conduct between November 2006 and M arch 2007. Although plaintiff's motion to enforce the consent decree in case no. 97-cv85 7 was originally filed on May 16, 2006, predating the events contained in plaintiff's current complaint, plaintiff submitted numerous documents both to the court and to Clauss (w hich were then addressed by Clauss in correspondence with the court) supplementing his claim in case no. 97-cv-857 to include allegations about defendant's actions over a period o f time from roughly 2004 through March 2007. Some, but not all, of plaintiff's allegations in the present case regarding the time period between November 2006 and March 2007 were co n sid ered in the earlier case. Nonetheless, his current allegations fall within the scope of his claim in case no. 97-cv-857 because plaintiff's claim regarding the out-of-work list in the earlier case involves the entire time period at issue in the present case. Restatement

(Second) of Judgments § 24, cmt. d (1980) (when defendant is accused of series of acts that w ere substantially of same sort and similarly motivated, plaintiff cannot maintain second suit for acts that could have been raised in earlier case.) Finally, defendant argues that when the Eastern District of Wisconsin court denied p lain tiff's motion to reopen and enforce the consent decree in case no. 97-cv-857 and 14

o rd ered the consent decree terminated, its order was a final judgment on the merits on p lain tiff's claims. Generally, an order constitutes a final decision if it ends the litigation and leaves nothing to be decided in the district court. Adams v. Lever Bros. Co., 874 F.2d 393, 39 4 (7th Cir. 1989). "The test for finality is not whether the suit is dismissed with prejudice o r without prejudice, on the merits or on a jurisdictional ground or on a procedural ground . . . [t]he test is whether the district court has finished with the case." Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir. 2003). As I explained in the June 1, 2009 order in the parties' previous case before this court, the procedural circumstances of case no. 97-cv-857 are unusual with regard to claim preclusion . It is common to see the defense of claim preclusion raised in situations in which a plaintiff brings an action and the parties disagree whether a claim was dismissed with or w i th ou t prejudice in an earlier case. Here, the order in an earlier case was not an order of d ism issal; plaintiff brought his claims originally in a new complaint in case no. 06-cv-592, but his claims were converted into a motion to reopen and enforce the consent decree in case no . 97-cv-857. In its March 30, 2007 order, the court denied plaintiff's motion to reopen the case and enforce the consent decree and ordered the consent decree expired. In the June 1 order in the parties' previous case, I concluded that the March 30, 2007 ord er was a final judgment on the merits of plaintiff's previous claims. Although plaintiff brings a new claim in the present case, there is no reason to depart from the reasoning in the June 1 order. Regardless of the unusual procedural circumstances in case no. 97-cv-857, it 15

is clear that the March 30, 2007 order was a final judgment on the merits. Certainly it indicated that the litigation was ended; the record in case no. 97-cv-857 shows that the court w e n t through numerous rounds of briefing and hearings in order to identify all outstanding co m p lain ts that the class members, including plaintiff, had raised concerning the consent decree before finally declaring that the decree had expired. In particular, the court noted plain tiff's claim of denial copies of the out-of-work list and gave plaintiff multiple o p po r tu n ities to flesh out his claims before concluding that he had failed to present "p articu la r evidence of violations by the defendant" and denying his motion. There is no reason that the March 30, 2007 order should be treated differently from other orders that w ou ld normally be considered final judgments on the merits, such as an order dismissing a pla in ti ff 's complaint with prejudice following numerous attempts by the plaintiff to adeq uately state a claim. To hold otherwise would render an absurd result, whereby plaintiff w ou ld have been able to bring his claims under case no. 97-cv-857, receive an adverse ruling, yet be able to bring the same claims in the current case and receive another bite of the same ap ple. Because defendant has shown that the three requirements of claim preclusion, ide n ti ty of parties, identity of claims and a final judgment on the merits, are met as to plaintiff's claim in this case, I will grant its motion to dismiss plaintiff's Title VII claim. I will address a final issue. Although I understand plaintiff to be bringing a Title VII d iscrim in atio n claim against defendant (plaintiff attaches an Equal Employment O pp ortun ity Commission right-to-sue letter to his complaint), he also makes repeated 16

referen ces to his belief that defendant violated its constitution and bylaws by withholding c o p ies of the out-of-work list. To the extent that he plaintiff is attempting to make out a state-law breach of contract claim against defendant, see Korzen v. Local Union 705, In tern atio n al Brotherhood of Teamsters, 75 F.3d 285, 288 (7th Cir. 1996) (suit based on breach of local union's constitution is state rather than federal claim), I will not exercise supplem ental jurisdiction over this claim because I am dismissing plaintiff's Title VII claim. 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over claim if it dismisses all claims over which it has original jurisdiction); see also Khan v. State O i l Co., 93 F.3d 1358, 1366 (7th Cir. 1996) (presumption against retaining jurisdiction of supp lem ental state law claims when federal claims are dismissed before trial). If plaintiff w i shes, he can pursue these claims in state court, unlikely as it is that he will succeed on them .

ORDER IT IS ORDERED that 1. Defendant Operating Engineers Local 139's motion to dismiss plaintiff Franklin Edm on ds's Title VII claim, dkt. #16, is GRANTED. That claim is DISMISSED with p reju dice because it is barred under the doctrine of claim preclusion. 2. Plaintiff's state-law breach of contract claim is DISMISSED without prejudice under 28 U.S.C. § 1367(c)(3) to his refiling the claim in state court. 17

3. Defendant's motion to strike from the docket a copy of a January 1, 2009 letter plaintiff sent to defendant, dkt. #20, is GRANTED. The clerk of court is directed to strike the letter, dkt. #15, from the docket. 4. Plaintiff's motions to strike the copy of the consent decree placed in the record by d efen dan t and to present documents outside the complaint, dkt. ##23, 25, are DENIED as moot. 5. The clerk of court is directed to enter judgment for defendant on plaintiff's federal claim and close this case. E n tered this 17 t h day of July, 2009. B Y THE COURT:

B AR B AR A B. CRABB D istrict Judge

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