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Stewart v. Theatrical Stage Employees Union Local No. 2

United States District Court, N.D. Illinois, Eastern Division

September 29, 2016

BENNY L. STEWART, Plaintiff,
v.
THEATRICAL STAGE EMPLOYEES UNION LOCAL NO. 2 Defendant.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER United States District Judge.

         Pro se Plaintiff Benny L. Stewart is a staging technician and was a member of the Theatrical Stage Employees Union Local No. 2 (“Union”) from 2007 to 2013. In this suit, Stewart-who is 60 years old and African American-alleges that the Union failed to represent him in a September 2011 wage grievance and later failed to adequately respond to harassment of Stewart by another Union member. In both instances, Stewart claims that the Union's actions were based on his race and intended as retaliation for an earlier grievance against the Union that Steward had filed with the Illinois Department of Human Rights (“IDHR”). At the motion-to-dismiss stage, the parties agreed that Plaintiff's claims arose under Title VII, and discovery proceeded on that basis. On September 28, 2015, the court struck Defendant's motion for summary judgment, which had been fully briefed by the parties. The court noted its concern that Plaintiff's claims, which he filed pro se, may have been more appropriately labeled as violations of the duty of fair representation under Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, or as interference with Plaintiff's right to contract in violation of 42 U.S.C.§ 1981. The Union (1) moves for reconsideration [77] of that order, arguing that the court “went beyond the adversarial issues presented to the court by the parties”; and (2) asks the court to grant the Union's motion for summary judgment [41]. For the reasons set forth below, both motions are granted.

         BACKGROUND

         I. Factual history

         In February 2011, Stewart filed a charge of discrimination with the IDHR against the Union, alleging, among other things, that he had been given “unequal job assignments” because of his race. (Stewart v. Theatrical Stage Employees Union, Compl., No. 13 C 538, Ex. 1 to Def.'s Mot. to Reconsider [78].) That charge led to an earlier lawsuit filed in this court, which Judge James Zagel dismissed in 2013 due to Stewart's failure to comply with a court order.[1]This suit arises from another charge of discrimination Stewart filed against the Union in March 2012. (Charge of Discrimination, Compl. at 10.) Plaintiff cross-filed this charge with the IDHR and the Equal Employment Opportunity Commission. The EEOC investigated Stewart's claim and issued a right-to-sue letter in July 2013 (EEOC Notice of Rights, Compl. at 18.) Plaintiff filed this suit three months later. In it, Plaintiff alleges that, because of Stewart's race, the Union failed to promote him, “refused to provide a fair duty of representation, ” and failed to stop harassment against him. (Compl. at 4.) Stewart also claims that the Union retaliated against him for his February 2011 IDHR charge. (Id.) These claims involve two underlying incidents: (1) a September 2011 wage grievance in which the Union purportedly failed to represent Plaintiff; and (2) harassment by Union member Mike Yeager in October 2011.

         A. September 2011 wage grievance

         The Union refers its members to employers in the Chicago theatre industry for various short-term employment opportunities. (Pl.'s Resp. to Def.'s R. 56.1 Statement [57], hereinafter “Pl.'s 56.1 Resp., ” ¶ 7.) Some of these employers pay Union members directly, while others mail checks to the Union, which then forwards the checks to its members. (Id. ¶¶ 10, 11.) On September 29, 2011, Plaintiff wrote a letter to Union secretary Tom Cleary, inquiring about missing checks from three shows he worked in the summer of that year. (Stewart Dep., Ex. 1 to Def.'s Mot. for S.J. [45-1] at 21.) The checks were for work Stewart performed at (1) a July 2011 Goo Goo Dolls concert; (2) an August 2011 production of Beauty and the Beast, produced by Broadway in Chicago; and (3) an August 2011 Paul McCartney Concert at Wrigley Field. (Id. at 22, 23, 29.) With respect to the first two checks, the dispute was quickly resolved. Sometime after sending his letter, Plaintiff realized on his own that he had already received payment for the Goo Goo Dolls concert. (Id. at 25-26, 28 (“[I]t would be safe to assume by [Nov. 28, 2011, when Stewart wrote another letter to the Union, ] that the Goo Goo Doll check had been resolved.”).) He was “confused” and did not recognize that he had been paid for the event because the relevant check included additional funds from another job. (Id. at 24.) As for the Beauty and the Beast show, Stewart contacted[2] Broadway in Chicago directly, and the company re-issued Stewart's paycheck in October 2011. (Id. at 23.)

         The missing check from the Paul McCartney concert proved more of a challenge. Program Production, Stewart's employer for that show, is one of the of the employers whose practice is to send checks for stagehands directly to the Union. (Id. at 30.) On September 15, 2011, Stewart called the Union to ask about the McCartney check and spoke with Maria Flores, the office administrator. (Id. at 30-31.) She told Plaintiff to “give it time.” (Id. at 30.) Stewart called the Union again to discuss the check “around the end of September.” (Id. at 31.) On this call, Maria informed Plaintiff that the Union had determined that someone had endorsed the check with Stewart's name and cashed it. When Stewart told Maria that he had never received the check, she mailed him a photocopy of the endorsed check. (Id. at 43.) At this point, Stewart realized “that there had been a forgery.” (Id. at 33.) On October 18, 2011, Stewart wrote a letter to Ralph Hicks, the payroll manager at Program Productions, asking Hicks to file a fraud complaint with the company's bank and reissue the check to Stewart. (Id. at 42.) On some later date, Plaintiff spoke with Hicks on the phone. Hicks suggested that Stewart directly contact the banks involved, and Plaintiff took this advice. On unidentified dates, he contacted Fifth Third Bank (the bank that issued the check), Citibank (the bank that cashed the check), and Bank of America (the bank where the check inexplicably “ultimately ended up”). But none of the financial institutions would give him any information. (Id. at 44.) Instead, each bank told Stewart that Program Productions would have to file a fraud complaint on Stewart's behalf. (Id.) Plaintiff filed a police report related to the missing check and repeatedly asked Program Productions to file a fraud complaint with the banks, but the company never reissued the check and never filed a complaint. (Id.) Finally, on July 26, 2012, Plaintiff filed suit against Program Productions in small claims court. The court awarded him $1, 194.28-the amount of the missing paycheck-plus court costs on September 6, 2012. (Id. at 45.)

         Apart from telling Stewart that his check and been cashed and then sending him a copy of the cashed check, the Union took no action on Stewart's dispute with Program Productions. (Stewart Dep. at 49.) The Union never responded to Plaintiff's September 28, 2011 letter, and only “vaguely responded” to his inquiries on the phone. (Id. at 51.) Stewart is not aware of any other Union member's having a problem with his or her paycheck from the August 2011 McCartney concert. He has also “never heard anyone say that [the Union] ignored them or their inquiries about finances.” (Id. at 51-52.) Nor has he ever heard of any other employee having to deal with a “[m]issing, forged[, or] disappearing paychecks.” (Id. at 52.) In previous incidents, however, some paychecks were delayed because employers were late to submit payments. On those occasions, Stewart also reached out to the Union and had “no problem getting information.” (Id. at 54.)

         B. October 2011 harassment

         Stewart worked at a show at Harris Theatre on October 16, 2011. Approximately thirty minutes before he was scheduled to start working, Plaintiff was relaxing backstage and reading a newspaper when another Union member, Mike Yeager, approached him. Yeager told Stewart that he “ought to stop suing the Union because you're just a nigger.” (Id. at 58.) Plaintiff immediately walked away from Yeager and reported the incident to another Union member, Don Dome. (Id. at 61.) Dome directed Stewart to speak with Andy Principe, the Union steward at the Harris Theatre. (Id.) Plaintiff told Principe that he would fulfill his commitment to work that evening, but that he did not want to have any contact with Yeager. Principe honored this request, and kept Yeager and Stewart separated. (Id. at 61-62.) Neither Yeager nor any other Union member or official has ever made other harassing statements to Stewart. (Id. at 64, 78-79.)

         Five days later, on October 21, 2011, Stewart filed an internal grievance against Yeager with the Union. (Id. at 68.) Plaintiff claims that he requested representation from the Union in pursuing his claim against Yeager, but the Union ignored that request. (Id. at 73.) He does not indicate when he made that request, however, and his October 21, 2011 does not include any request for representation. (Ex. 7 to Def.'s Mot. for SJ [45-7].) According to Craig Carlson, the Defendant's business manager, the Union assigned one of its attorneys, Sherrie Voyles, to conduct an investigation into Stewart's allegations against Yeager. (Carlson Decl. Ex. 12 to Def.'s Mot. for SJ [45-12], ¶ 3.) Voyles attempted to interview Stewart on the phone on an unidentified date, but Plaintiff “told her that [he] had submitted [his] certified statement to the hall, [and] there was nothing else to be said.” (Stewart Dep. at 72.) Voyles also reached out to Yeager, who acknowledged “that he did tell Stewart he was an asshole for suing the Union, but claimed that he never used the n word.” (Voyles Decl., Ex. 14 to Def.'s Mot. for SJ [45-14], ¶ 3.) In addition to Yeager, Voyles interviewed seven other individuals who were at the Harris Theatre on October 16, 2011. (Voyles's Investigation Report, Ex. 10 to Def.'s Mot. for SJ [45-10].) Each denied hearing Yeager make a racially derogatory remark. (Voyles Decl. ¶ 4.) Notably, the list of members interviewed by Voyles does not overlap with the list of purported witnesses identified by Stewart in his October 21, 2011 charge. Nor does the list in the charge match up with the list of witnesses that Stewart has pointed to in this litigation. At his deposition, Stewart testified that Union member Kevin Engstrom “was to [Stewart's] left” when Yeager allegedly called him “nigger.” (Stewart Dep. at 60.) In his Rule 56 statement of additional facts, Stewart claims, for the first time, that Jeffery Kern and Ross Wilkerson were also present when Yeager harassed him. None of these three men were listed in Stewart's letter to the Union, however, and Plaintiff offers no evidentiary support for his claims regarding Kern and Wilkerson, so the court will not consider this purported fact in its analysis.

         Voyles closed her investigation on December 5, 2011, finding insufficient evidence to conclude that Yeager either did or did not make the derogatory statement. (Voyles Decl. ¶ 4.) She recommended that the Union publish the following notice to its members:

Stagehands Local is committed to providing a workplace in which all individuals are treated with respect and dignity. Each individual has the right to work in an environment free of discrimination and harassment on the basis of any legally protected status. No person, regardless [of] whether it is a business agent or member, should be required to endure discriminatory treatment or sexual harassment or work in a hostile environment as a condition of employment. Local 2 strongly encourages all members and stagehands to treat coworkers, members, and employers and management with respect and to create a work environment and atmosphere that embraces all the diversity of our Union.

         (Voyles's Investigation Report at 4.) On that same day, Stewart appeared before the Union's executive board regarding his allegation against Yeager. (Carlson Decl. ¶ 4.) The board informed Stewart that Voyles had been unable to prove or disprove his charge. (Stewart Dep. at 71-72.) The Union contends that it never provides representation to any member who files charges against another member. (Carlson Decl. ¶ 5.) In his response to Defendant's Rule 56 statement of facts, Plaintiff denied the Union's assertion that non-representation was standard Union policy in these circumstances, but he failed to elaborate beyond the word “denied, ” and again offered no evidence to rebut the Union's statement. (Pl.'s Resp. to Def.'s R. 56 ¶ 63.) And at his deposition, Stewart acknowledged that he is unaware of any member who has requested or received representation in a similar case. (Stewart Dep. at 73-74.) On December 14, 2011, the Union published to its members the notice recommended by Voyles. (Ex. 11 to Def.'s Mot. for SJ [45-11].)

         II. Procedural history

         Stewart filed this suit in October 2013, attaching to his complaint the charge of discrimination he had filed with the IDHR and EEOC the previous year. The charge, No. 2012CA2794, refers to the two incidents discussed above from September and October 2011. Stewart's complaint in this case, however, included numerous allegations beyond the scope of the charge. For instance, the complaint reiterated claims, previous dismissed in the case before Judge Zagel, that the Union provided unequal work assignments on the basis of Plaintiff's race. Defendant filed a partial motion to dismiss, seeking to confine the scope of this suit to those claims identified in charge No. 2012CA2794. (Def.'s Mot. to Dismiss [12].) Stewart responded that that he was “only seeking relief for 2012CA2794 incidents.” (Pl.'s Resp. to Def.'s Mot. to Dismiss [19] at 1.) Plaintiff reiterated this sentiment in court on March 25, 2014:

THE COURT: My - my understanding is the claims that are before me are the Title VII claims involving a failure to acknowledge a grievance on September 30th of 2011, use of the N word by another union ...

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