United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the motions for summary judgment filed by defendant Transportation Communications Union Local 574 ("TCU Local 574") (Doc. 39), defendant Terminal Railroad Association of St. Louis ("Terminal Railroad") (Doc. 40), and plaintiff Tiffany Glenn (Doc. 41). TCU Local 574 has responded to Glenn's motion, which was only directed at it (Doc. 47), Glenn has responded to the defendants' motions (Docs. 46 & 48), and Terminal Railroad has replied to Glenn's response to its motion (Doc. 50).
I. Summary Judgment Standard
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. This standard is applied with special scrutiny in cases, such as employment discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The initial summary judgment burden of production is on the moving party to show the Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial, the moving party may satisfy its burden of production in one of two ways. It may present evidence that affirmatively negates an essential element of the non-moving party's case, see Fed.R.Civ.P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the non-moving party's case without actually submitting any evidence of its own, see Fed.R.Civ.P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. If the moving party bears the burden of persuasion at trial, it must present conclusive evidence justifying a judgment in its favor. See EEOC v. Union Independiente De La Autoridad de Acueductos Y Alcantarillados De P.R., 279 F.3d 49, 55 (1st Cir. 2002); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the moving party fails to meet its strict burden, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties, " Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.
Viewed in the light most favorable to the non-moving party, the evidence establishes the following relevant facts.
Glenn, an African-American woman, began working as a clerk for Terminal Railroad in September 2011. TCU Local 574 is a local labor union that represents employees of Terminal Railroad, including Glenn. Glenn's employment was governed by a March 1, 1973 collective bargaining agreement ("CBA"), which was in place at all times relevant to this dispute.
Generally, under the CBA, employees' seniority governs whether and the order in which they are hired, promoted or let go. Thus, when an employee loses his position, for example, in a reduction in force, the employee may use his seniority to displace, or "bump, " an employee with less seniority from another position and then work in that position. The bumped employee may then, in turn, displace someone with even less seniority, and on down the line until the person with the lowest seniority is displaced. However, certain clerical positions are exempt from this seniority rule pursuant to an April 6, 1972, memorandum of understanding between Terminal Railroad and TCU Local 574. Those positions, called "company select" or "B-2" positions, are filled at the discretion of Terminal Railroad notwithstanding seniority rules.
Rule 17 of the CBA also provides certain notice requirements where there is a reduction in force, that is, where positions are abolished. Rule 17 states, in pertinent part, "Any reduction in force shall be bulletined at least five (5) working days in advance of the effective date reduction is to be made.... Bulletins will show position or positions to be abolished and the names of the occupants thereof." CBA at 13. Rule 17 permits employees whose positions are abolished to bump another employee with lower seniority (except, of course, for those in B-2 positions whose seniority is irrelevant). Id. If there is no bumpable employee, the displaced worker is considered furloughed. Id. at 13-14. The rule further requires copies of the bulletins and a list of furloughed employees be provided to the general chairman of the union, although it does not provide a timeframe in which this must be done. Id. at 14. There is no advance notice requirement when an employee is displaced by a more senior employee whose position has been abolished; only advance notice of position abolishments is required.
A. Glenn's Dealings with Terminal Railroad
When Glenn was hired, she was not hired as a regular Terminal Railroad clerk but as one of two clerks on the Guaranteed Extra Board ("GXB"). GXB employees are guaranteed forty hours of work per week, or pay for forty hours if they are not actually assigned to work forty hours. They do not hold a set position but fill in for regular employees who, for one reason or another, are not working that day. The Non-Guarantee Extra Board ("XB") provides similar coverage for regular employees who are absent from work, but XB employees are not guaranteed a certain level of work or pay and are only paid for the time they actually work. They may not work forty hours a week. As a member of the GXB, Glenn's employment was covered by the 2002 Guaranteed Extra Board Agreement ("GXB Agreement") between Terminal Railroad and TCU Local 574.
Following a downturn in business in late 2012, Terminal Railroad began reducing its workforce. As part of this downsizing, Terminal Railroad's clerk supervisor Adam Mahlandt decided to abolish some clerk positions: three regular clerks and one GXB clerk. On December 1, 2012, Mahlandt made the decision to abolish one of the two GXB clerk positions. Ordinarily, decisions to eliminate GXB positions would be governed by a formula spelled out in the GXB Agreement that took into account the number of days other clerks were expected to be absent, that is, the expected number of work days GXB clerks would be needed. However, Mahlandt did not apply this formula, instead relying on the general slowdown in business and reductions in other parts of the workforce to justify reducing the GXB clerical workforce as well. In fact, had Mahlandt applied the formula correctly, elimination of the second GXB clerk position would have been justified. Terminal Railroad did not post an advance notice of abolishment of the GXB position as required by Rule 17 of the CBA, and did not send a notice to TCU Local 574 at that time.
At the time Terminal Railroad abolished the second GXB position, Glenn and Tracie Fry, a white woman, were the two GXB clerks, Fry having more seniority than Glenn. When the GXB position was eliminated, Glenn was moved from the GXB to the XB, effectively ending her guaranteed pay for forty hours a week. The parties refer to this move as a "furlough" even though Glenn actually remained a Terminal Railroad employee on the XB. Fry remained on the GXB, at least for the time being.
Terminal Railroad did not allow Glenn to bump Dennis Bosco, a white male clerk with less seniority than she had. Bosco held the position of chief clerk of maintenance of way ("MOW") in the engineering department, a B-2 position. Glenn had applied for this position earlier in 2012, but Terminal Railroad hired Bosco instead of her despite her greater seniority. The chief clerk of MOW was a regular clerk position, not a GXB position, was not in Glenn's department and was not supervised by Mahlandt. Bosco was allowed to remain in his position despite Terminal Railroad's reduction in force. To this day, Glenn remains employed by Terminal Railroad on the XB but she does not earn as much as she would have on the GXB.
B. Glenn's Dealings with TCU Local 574
Glenn did not complain to TCU Local 574 when she was passed over for three regular clerk positions in the spring and summer of 2012. As a consequence, TCU Local 574 did not investigate those hires and did not file grievances relating to those decisions.
In mid-January 2013, the hours Terminal Railroad called on Glenn to work as an XB clerk significantly fell. Concerned about her falling income, in mid-February 2013 Glenn called Theresa Gill, TCU Local 574's local chairperson and the person responsible for deciding whether TCU Local 574 would file a grievance on Glenn's behalf. She complained to Gill that Terminal Railroad had furloughed her without formally notifying her of the furlough and would not allow her to bump Bosco, an employee with less seniority than she had. Glenn provided supporting documentation to Gill, who then investigated Glenn's complaints by contacting Brad Ragland, Terminal Railroad's director of labor relations, in early March 2013. Gill was told by Brad Ragland that Glenn had indeed been furloughed and had not been allowed to bump Bosco because Bosco was in a B-2 position not subject to seniority rules or bumping. Gill informed Glenn of Brad Ragland's response.
In the meantime, Glenn contacted national TCU representative Robert Ragland, who is responsible for pursuing grievances if they are denied at the local level. Glenn complained to Robert Ragland that she had not been given proper notice that she had been displaced from the GXB and had been furloughed and that earlier Terminal Railroad had hired Bosco for the chief clerk of MOW position despite her seniority. Robert Ragland asked Glenn to provide documents and details regarding her work schedule and her seniority to support her claim against Terminal Railroad. Glenn sent the requested information to Gill, but Gill never received it.
Nevertheless, Gill continued to investigate and came to believe that Terminal Railroad had abolished four regular clerk positions, that the holders of those positions exercised their rights to bump those with less seniority, and that the domino effect of those bumpings was to displace Glenn from the GXB because she had the lowest seniority of any clerk except Bosco. Gill asked Brad Ragland to put Glenn back on the GXB and provide back pay, but he refused, insisting that Glenn had been displaced because of other more senior employees whose positions had been abolished. Terminal Railroad informed Gill that no notice was required for this type of furlough since Glenn's position had not been abolished. Gill did not inquire about the formula in the GXB Agreement for reducing GXB positions because, based on information she received from Terminal Railroad, she was under the impression Glenn had been displaced from her position by a more senior clerk, not that her position had been abolished in a reduction in force.
On March 21, 2013, Gill told Glenn that she thought her claim would not be successful because Terminal Railroad was furloughing employees throughout the company and Glenn did not have the seniority necessary to keep a clerk job. She also explained that she believed Glenn could not bump Bosco because he had a B-2 position where her seniority was meaningless. For these reasons, Gill decided TCU Local 574 would not file a grievance on Glenn's behalf. Glenn told Gill she was planning on suing Terminal Railroad for discrimination and asked for TCU Local 574's help, but Gill said TCU Local 574 did not want to get involved in the lawsuit. Glenn never asked Gill to file a grievance on her behalf, and Gill never filed one.
Shortly thereafter, on March 25, 2012, after Robert Ragland pointed out to Terminal Railroad that TCU Local 574 had not received copies of any notices announcing the abolishment of positions or any notice of Glenn's furlough, Mahlandt sent Gill and Robert Ragland a letter stating that Glenn had been bumped and furloughed on January 16, 2013, because she did not have enough seniority to displace a junior employee. Robert Ragland never received a notice announcing the abolishment of Glenn's GXB position.
It was not until well into this litigation that TCU Local 574 realized that Glenn had been furloughed because her GXB position had been abolished and not because she had been displaced from that position by a more senior clerk. Indeed, in its answer filed June 17, 2014, Terminal Railroad represented that Glenn had been "bumped by her fellow union member" from the GXB to the XB (Doc. 10, ¶ 5). It appears Terminal Railroad first officially represented that Glenn's furlough was a result of the abolishment of her position in the deposition of Brad Ragland on December 17, 2014, and that Brad Ragland's March 25, 2013, letter to Robert Ragland had been incorrect. Thus, it was not until that time that TCU Local 574 realized Terminal Railroad had not provided the notice of abolishment required under Rule 17 the CBA when a position is abolished.
In connection with Robert Ragland's representation of Glenn in an unrelated grievance in the summer of 2014, he used the phrase, "Homey don't play that, " in an effort to convey to Glenn he was not going to play any games with Terminal Railroad and was going to try to keep Terminal Railroad from disciplining Glenn in that later dispute. Glenn also notes that TCU Local ...