bad decision. Sample v. Aldi, Inc., 61 F.3d 544, 549 (7th Cir. 1995).
The Sun-Times has presented a legitimate, non-discriminatory reason for transferring Greenslade. Separating these two employees by transferring Greenslade to an equal position with little or no adverse consequences in order to diffuse a difficult working environment appears perfectly reasonable. Because Greenslade has failed to bring forth evidence that such reasons were a pretext and that his transfer was motivated by gender, the Sun-Times is entitled to summary judgment as to Count I.
B. Claim Against the Newspaper Guild
Greenslade has also failed to raise a material fact question that the Guild's decision not to file a grievance on his behalf was the product of sex discrimination. To establish a prima facie case against the Guild under Title VII, Greenslade must show all of the following elements: 1) the Sun-Times violated the Collective Bargaining Agreement with respect to him; 2) the Guild let the breach go unrepaired, thereby breaching its own duty of fair representation; and 3) some evidence indicates that gender animus motivated the Guild. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S. Ct. 1048, 47 L. Ed. 2d 231, (1976); Bugg v. Int'l Union of Allied Industrial Workers of America, 674 F.2d 595, 598 n.5 (7th Cir. 1982).
Greenslade has failed to establish a prima facie case against the Guild. Greenslade alleges the Sun-Times violated the CBA when it transferred him. However, there is no provision in the CBA which prevents the Sun-Times from transferring employees to another department. In fact Greenslade was looking forward to the very action which he now condemns. Namely, he was anticipating being transferred from the sports copy desk to the pagination area. Therefore the court finds that the Sun-Times did not violate the Collective Bargaining Agreement in transferring Greenslade.
Greenslade has failed to show that a reasonable jury could find that the Guild breached its duty to fairly represent him. A Union breaches its duty of fair representation when its decision not to pursue a grievance is arbitrary or based on discriminatory or bad faith motives. Trnka v. Local Union No. 688, UAW, 30 F.3d 60, 61 (7th Cir. 1994). "Existence of a genuine issue as to any one of [these] three elements suffices to defeat a summary judgment motion." Griffin v. Air Line Pilots Ass'n Int'l, 32 F.3d 1079, 1083 (7th Cir. 1994).
A "union only violates the arbitrary prong of the analysis when the union's actions are so far outside a range of reasonableness that the actions rise to the level of irrational or arbitrary conduct. Under this extremely deferential standard, courts should not substitute their judgment for that of the union, even if, with the benefit of hindsight, it appears that the union could have made a better call." Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992). The Guild did process Greenslade's complaint but declined to file a grievance on the basis that "the Guild determined that [Greenslade's] actions towards Ms. Wagner were inappropriate, that the [Sun-Times] did not violate the [CBA] when it transferred [Greenslade], ... and the Guild could not successfully challenge the substantive merits of the case." (Def. Motion for Summary judgment p. 5). This decision was made after months of investigation by the Guild which included 1) interviews with Greenslade and Ms. Wagner; 2) meetings with the Guild Attorney and Executive Director; 3) meetings with Greenslade and his attorney; and 4) a meeting with the Sun-Times. (See Def. Exs. 1, 2, 7, 11, 12, and 15 - 17). A reasonable jury could not find that the Guild's actions in processing Greenslade's complaint were arbitrary or irrational. Therefore, the court finds that the Guild's decision not to file a grievance on behalf Greenslade was not arbitrary.
The "discriminatory motives" element of the test for determining whether a Union breached its duty of fair representation coincides with Greenslade's Title VII claim. When a Title VII claim is predicated on a breach of a duty to represent, a Plaintiff must show that there was a breach of that duty and that "there was some indication that the Union's actions were motivated by discriminatory animus." Babrocky v Jewel Food Co., 773 F.2d 857, 868 (7th Cir. 1985).
Greenslade has failed to produce evidence which could show a reasonable jury that the Guild had a gender-tainted motivation. Greenslade has not compared the representation he received with that of any other Union member. Looking at the evidence in the light most favorable to Greenslade, as we must, the only reference the court can find as to the dissimilar treatment of Union members is found in the "Reopener" document authored by Unit Chair Charles Nicodemus. (Def. Ex. 19). In that document Nicodemus refers to various claims that were filed on behalf of other members in making his case to reconsider the Guild's decision with respect to Greenslade. However, all the instances referred to involve males. Greenslade has to show at least some evidence that his complaint was treated differently than the complaints of similarly situated female Guild members.
Greenslade argues that Schultz showed discriminatory animus by stating that her decision not to support filing a grievance on Greenslade's behalf was affected because the dispute was between a male and a female. A Union's refusal to handle a grievance on the basis of discriminatory animus violates the duty of fair representation. Martin v. Youngstown Sheet & Tube Co., 911 F.2d 1239, 1248 (7th Cir. 1990). However, Schultz did not make the decision regarding Greenslade's complaint. Rather, the Guild leadership made the decision. Greenslade and his attorney met with the Guild several times and relayed all the information necessary for the Guild to make its determination. Several members of the Guild testified that the decision was an arduous one.
For instance, Schultz testified that she reached her decision "through much pain and agony and a lot of discussion". (Schultz Dep. p. 82-83, 94, 106). Guild leader Dan Lehmann, a reporter, based his opinion not to file a grievance on the following: 1) advice of the Guild Attorney and Guild Executive Director; 2) he felt there was no contract violation; and 3) he felt the Guild would not be successful in arbitration over the matter. (Def. Ex. 16). Guild leader Jim Montalbano based his opinion not to file a grievance on the following: 1) he felt there was no contract violation and the Sun-Times could transfer employees at will; 2) that there was no evidence that Greenslade had been transferred due to sexual harassment; and 3) he felt the Guild would not be successful in arbitration over the matter. (Def. Ex. 17).
The Guild's decision not to file a grievance on behalf of Greenslade was based on its own assessment. Had Schultz contaminated the Guild's decision making process then the failure to fairly represent Greenslade would be attributed to the Guild because it would have affected its decision. Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). However, there is no hint that Schultz contaminated the Guild's decision making process. Therefore, the court finds that the Guild's decision not to file a grievance on behalf of Greenslade was not motivated by discriminatory intent.
The Guild processed Greenslade's complaint in a good faith manner. "In administering the grievance and arbitration machinery as statutory agent of the employees, a union must, in good faith and in a non-arbitrary manner, make decisions as to the merits of particular grievances." Vaca v. Sipes, 386 U.S. 171, 193, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). When Greenslade provided evidence to the Guild it had a duty to investigate the claim. The Guild processed the claim and investigated the matter for several months. (Guild 12 M PP 110-210). Only after this investigation and a reconsideration of Greenslade's complaint did the Guild decide that filing the grievance was a fruitless endeavor.
"If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation." Vaca v. Sipes, 386 U.S. 171, 191, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). Accordingly, the court finds that the Guild did not breach its duty to fairly represent Greenslade and the Guild's motion for summary judgment is granted as to count IV.
IV. BREACH OF CONTRACT CLAIM
Count III against the Sun-Times alleges a common law breach of contract claim. "Unless the [Guild] violated its duty of fair representation, [Greenslade] cannot litigate his claim of breach of contract, because the [Guild's] responsibilities as the exclusive representative of the members of the bargaining unit include responsibility for the decision whether to prosecute a grievance on the employee's behalf." Brazinski v. Amoco Petroleum Additives Corp., 6 F.3d 1176, 1179 (7th Cir, 1993). Because the court finds that the Guild has not breached its duty of fair representation, Greenslade cannot litigate his breach of contract claim. Accordingly, the Sun-Times' motion for summary judgment is granted as to count III.
For the foregoing reasons, The Chicago Sun-Times' motion for summary judgment is hereby GRANTED as to counts I and III and The Chicago Newspaper Guild's motion for summary judgment is hereby GRANTED as to count IV.
SO ORDERED THIS 24TH DAY OF JUNE, 1996.
MORTON DENLOW, United States Magistrate Judge