Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. S74-244, S77-0079 -- Allen Sharp, Judge.
Before Cummings, Pell and Tone, Circuit Judges.
The plaintiff-appellant, Clyde D. Donaldson, brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and under the Civil Rights Act of 1870, 42 U.S.C. § 1981. He alleges that defendant Taylor Products Division of the Tecumseh Products Company (Taylor) discharged him on account of his race, and that defendant Local 837 of the UAW (union) failed adequately to represent him, also because of his race. At the close of plaintiff's evidence at trial, the district court granted a motion for dismissal as to the union, but denied it as to Taylor. After hearing all the evidence, and after submission of post-trial briefs, however, the court entered judgment in favor of the company. On appeal, plaintiff argues that the district court's dismissal of the union was grounded on plaintiff's failure to exhaust internal union remedies, and was therefore improper, and that defendant Taylor did not meet its burden of articulating a legitimate, nondiscriminatory reason for the discharge under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
The facts as found by the district court are as follows. Donaldson, a black male, was first employed by Taylor on January 14, 1971, as a machine operator. During the course of his employment, he was represented for collective bargaining purposes by defendant Local 837 and was subject to a collective bargaining agreement. At the time of his discharge he held the position of union steward.
The incident which triggered plaintiff's discharge occurred on February 12, 1974. Donaldson arrived late for work, and instead of reporting to supervisor Robert Britton as required by the collective bargaining agreement, he left his job area to conduct union business, specifically, the passing out of vacation slips. When Britton sought out Donaldson and discovered that he was attending to union affairs, he permitted him to continue, notwithstanding his violation of the collective bargaining agreement. When the plaintiff returned to his work station, Britton instructed him to work in the "Ford area," so named because it was the part of the plant where Taylor had historically manufactured products for the Ford Motor Company. Donaldson refused the work assignment and insisted upon preparing a written grievance regarding Britton's order. Britton advised him that he could write the grievance, but that he had to do the assigned work first. Donaldson again refused to obey the work order.
The Chief Union Steward was summoned and explained to the plaintiff that he was required to follow his supervisor's directive, but that a grievance could be filed later.*fn1
As soon as the Chief Steward left, Donaldson chose to ignore his explanation and wrote the grievance. When Britton again renewed the work order, Donaldson, shaking his finger in Britton's face, said that he was going to write the grievance and that if Britton didn't give him the time off to do it, they "could settle it another way." Donaldson further told Britton that he could take that as a threat if he wanted to do so. At this point, Britton suspended Donaldson effective immediately, rang out his time card, and notified the Chief Union Steward what had transpired.
Before a final decision was made regarding the plaintiff, his employment record as a whole was reviewed by Taylor's Director of Industrial Relations, Director of Manufacturing, Plant Superintendent, and the plaintiff's supervisor. In addition to the February 12 incident with Britton, Donaldson's record contained the following notations.
First, on the Thursday of the week after Thanksgiving, 1973, Donaldson, in his capacity as a union steward, accompanied Viola Oakley to the payroll office in an effort to secure her holiday pay. Rebecca McDowell, who was alone in the office at the time, explained to the plaintiff that the holiday pay would appear on Oakley's next check due to a delay in ascertaining her entitlement to the pay. This delay resulted from Oakley's absence from work before the holiday and was not the fault of Taylor. Despite the explanation, the plaintiff refused to leave and demanded immediate payment in a loud and intimidating manner. McDowell summoned the Director of Industrial Relations and Director of Manufacturing, who instructed the plaintiff to leave and advised him that he was risking being discharged. Plaintiff refused. He was then advised that he would be discharged on the spot if he failed to obey the directive, at which point he left.
Secondly, Donaldson had been warned on many occasions about spending excessive amounts of time on union business, and about failing to notify his supervisor before leaving his job to conduct such business, as required by the collective bargaining agreement.
Third, Donaldson had received several warnings regarding his record for absenteeism and tardiness.
Fourth, on February 8, 1979, only four days before the final incident, after the dinner break, Donaldson's time card was punched, but he was not in the plant. When Donaldson came in eight minutes later with his hat and coat, he stated that he had been talking to a friend and denied punching his time card in early.
Finally, on November 26, 1973, Donaldson had filed a written request for bereavement pay in conjunction with his attendance at the funeral of his wife's uncle. The union contract did not provide for bereavement pay except in cases of ...