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Stewart v. International Alliance of Theatrical Stage Employees Union

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

November 22, 2016

BENNY L. STEWART, Plaintiff,


          JORGE L. ALONSO United States District Judge.

         Before the Court is defendants' motion for summary judgment [94]. For the reasons set forth below, the motion is granted.


         Benny Stewart worked as a freelance producer, technical director, and audiovisual technician. (Defs.' Mem. Ex. A Stewart Dep. at 122-23.) In 1998 he began getting work assignments from the International Alliance of Theatrical Stage Employees Union Local No. 2 (the “Union”). (Id. at 124-25.) In 2007, he joined the Union as a journeyman member. (Id. at 15.) Stewart testified at his deposition that in this case he is alleging that the Union retaliated against him for filing complaints with the Illinois Department of Human Rights (“IDHR”) and the National Labor Relations Board (“NLRB”) and that the Union also violated the Labor Management Reporting Disclosure Act (“LMRDA”) when it mismanaged his annuity and health benefits. (Id. at 20-22.) At his deposition, plaintiff confirmed that he does not allege race discrimination in this case. (Id. at 20-21.) Stewart argues that the retaliation began when he was allegedly given the wrong information about a work assignment at the Arie Crown Theater in May 2012. (Id. at 30.) Stewart contends that because he was given incorrect information about the date of that job, he did not show up as expected and was subsequently charged with conduct unbecoming of a union member, which ultimately led to his expulsion from the Union in May 2013. (Id. at 30-31; Defs.' SOMF ¶ 59.) Stewart further argues that the retaliation continued when Craig Carlson, member of the Union's executive board, denied him an opportunity to work on August 19, 2013 by telling Stewart to call in at 3:00 p.m., the designated call-in time for nonunion members or extras, rather than 10:00 a.m., the designated call-in time for union members or journeymen. (Id. at 26-27.)[2] Stewart asserts that the change in call-in time was the first time he was aware of his expulsion from the union. (Id. at 31-32.) In August 2012, Stewart filed NLRB and IDHR charges against the Union for race, age, and retaliation-based discrimination, while the Union disciplinary process for missing the assignment in May 2012 was proceeding. (Id. at 41-42; Defs.' Exs. A-8 and A-11.) Stewart filed a subsequent IDHR charge in February 2014 alleging denial of work beginning in August 2013 as further retaliation. (Defs.' Ex. A-2.)

         Stewart had previously filed IDHR and NLRB charges against the Union in 2011 and 2012 for age and race discrimination, failure to provide representation at a grievance proceeding, and retaliation. (Stewart Dep. at 32-39; Defs.' Exs. A-3, A-6, and A-7.) Those charges were dismissed and Stewart was issued a right-to-sue letter. (Id.; Defs.' Ex. A-4.) Stewart filed case 13 CV 538 in this district alleging fourteen years of discrimination by the Union for age and race, denial of training, disparate distribution of assignments, and retaliation for filing complaints with the NLRB and IDHR. (Id. at 32-33, 37; Defs.' Ex. A-5.) Judge Zagel dismissed that case in June 2013 for plaintiff's failure to comply with a court order, which Stewart did not appeal. (Defs.' SOMF ¶ 8; Stewart Dep. at 34; Defs.' Ex. B.) Stewart filed case 13 CV 7343 against the Union for failure to represent him in a wage grievance matter, for a racially-charged incident that occurred in October 2011, and for retaliation for filing charges with the NLRB. (Stewart Dep. at 38, 43-44; Defs.' Ex. A-10.) Judge Pallmeyer granted summary judgment and entered judgment in favor of the Union in September 2016. (See 13 CV 7343 [102] and [103].)[3]

         Stewart's August 2012 NLRB and IDHR charges were dismissed, and he was granted a right-to-sue letter by the IDHR. (Stewart Dep. at 45-46; Defs.' Exs. A-9 and A-12.) While Stewart did not file a lawsuit after he received the right-to-sue letter on the August 2012 IDHR charge, he testified that the retaliation claims that were part of that charge are also part of this lawsuit. (Stewart Dep. at 46-47.) When asked whether the allegations in this lawsuit are the same as allegations in the previous suits, Stewart testified that he “made these same allegations in front of the [NLRB], the [IDHR], Judge Zagel, Judge Pallmeyer and Judge Alonso. I make these allegations across the board because they were retaliatory. They begin as discriminatory and ended up being retaliatory on a consistent and ongoing basis subsequently overlapping one another to the point that I had to continue to file charges to abate the situation, which was never abated.” (Id. at 53.) Stewart further confirmed that the allegations are the same but he is suing under the LMRDA in this case instead of Title VII as he did in case 13 CV 538 before Judge Zagel. (Id. at 53-55.) Finally, Stewart confirmed that the February 2014 IDHR charge is included with claims brought in this lawsuit. (Id. at 57.) In addition to the retaliation claims, Stewart also alleges that he did not receive annuity benefits he was entitled to from 1998 through 2001 or health benefits from 2004 to 2007. (Id. at 121-22, 154-55.)

         In November 2015, the Court granted defendant International Alliance of Theatrical Stage Employees' motion to dismiss [78] and dismissed that defendant from the case with prejudice. The three counts in the second amended complaint [64] are pending against the Local No. 2 and the individual members of the Local No. 2's executive board.


         “The court shall grant summary judgment 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). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). “Summary judgment should be denied if the dispute is ‘genuine': ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014). The court will enter summary judgment against a party who does not “come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question.” Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013).


         I. Count I - Retaliation

         Title VII and ADEA Claims

         Count I of the second amended complaint generally alleges that plaintiff was discriminated against because of his race and retaliated against because of charges he filed with IDHR and NLRB. (2d Am. Compl. ¶¶ 14-15.)[4] Plaintiff alleges that because of this discrimination and retaliation, the Union knowingly assigned him short-term jobs and referred him to jobs that were the least desirable and were the furthest from his home. (Id. ¶ 16.) As a result of this discrimination and retaliation, plaintiff contends that he experienced emotional harm and lost wages and career opportunities. (Id. ¶ 19.) In his deposition, plaintiff confirmed that he brings the claims in this count pursuant to Title VII and the LMRDA. (Stewart Dep. at 58-59.)

         To the extent that these general allegations are the same allegations that were brought in plaintiff's case before Judge Zagel, defendants argue that they are barred by the doctrine of res judicata. “Res judicata applies if there is (1) a final judgment on the merits in an earlier action; (2) an identity of the causes of action; and (3) an identity of parties or their privies.” Ennenga v. Starns, 677 F.3d 766, 776 (7th Cir. 2012).

         Judge Zagel dismissed case 13 CV 538 on June 28, 2013, for failure to comply with an April 5, 2013 court order. Such a dismissal operates as a dismissal on the merits pursuant to Fed.R.Civ.P. 41(b). See Fed. Election Comm'n v. Al Salvi for Senate Comm., 205 F.3d 1015, 1018 (7th Cir. 2000) (“[A] federal court is granted authority to dismiss an action pursuant to Rule 41(b) for failure to comply with a prior court order.”). Because the time for appeal in that case has passed, the judgment is final. See People v. Anderson, 48 N.E.3d 1134, 1141 (Ill.App.Ct. 2015) (“Íf a judgment is still subject to the appeal process, it cannot be given res judicata effect.”).[5] Plaintiff brought case 13 CV 538 against the Theatrical Stage Employees Union Local No. 2 but not against individual executive board members of the Union, as he has done in this case. However, plaintiff's addition of Union executive board members in their individual capacities does not prevent this element of res judicata from being satisfied, particularly when, as is the case here, plaintiff does not allege that any action taken against him by the individual defendants (at least in Count I) is distinct from any action taken by the executive board or the Union itself. Licari v. City of Chi., 298 F.3d 664, 667 (7th Cir. 2002). Accordingly, there is an identity of parties. Finally, there is an identity of causes of action. In 13 CV 538, plaintiff alleged that he was denied employment by the union from 1998 through 2012 because of his race and age and for retaliatory purposes. (Defs.' Ex. A-5.) In that case, plaintiff further alleged that he was harassed, denied union membership for ten years, denied proper training, and subjected to unfair job assignment distribution. (Id.) To the extent that the general claims in Count I, including unfair work distribution, are brought under Title VII and the ADEA, the Court finds that they are barred by the doctrine of res judicata.[6]

         LMRDA Claims[7]

         To the extent that plaintiff brings the claims in Count I pursuant to the LMRDA, 29 U.S.C. § 411, the Court finds that such claims are untimely.[8] The LMRDA does not enumerate a statute of limitations, so courts are authorized to apply the “most closely analogous statute of limitations from the forum state.” Stevens v. Nw. Ind. Dist. Council, United Bhd. of Carpenters, 20 F.3d 720, 723 (7th Cir. 1994). Defendants argue that the Court should follow Stevens and apply Illinois's two-year limitation for tort actions. Plaintiff does not respond to defendants' timeliness argument. Accordingly, the Court will apply Illinois's two-year statute of limitations-735 ILCS 5/13-202. See Reed v. United Transp. Union, 488 U.S. 319, 327 (1989) (“Since § 101(a)(2) [of the LMRDA] has evident similarities to § 1983, which prohibits the infringement of First Amendment rights by persons acting under color of state law, it is apparent that § 101(a)(2) actions also are analogous to state personal injury claims, and under our usual borrowing rule would take their statutes of limitations.”); see also Clift v. Int'l Union UAW, 881 F.2d 408, 411 (7th Cir. 1989) (“[A] state's limitations period for a personal injury action also provides the appropriate borrowed limitations period for an employee's equal protection claim under § 101(a)(1) of the LMRDA.”). In Count I of his complaint, plaintiff alleges that the retaliation against him occurred after he began speaking out against the Union in June 2009. Because plaintiff does not specify, at least in this Count, specific instances of retaliation or when they occurred, the Court is left to presume they took place soon after plaintiff's criticism in June 2009.[9] Because this lawsuit was filed in September 2014, more than five years after plaintiff's critical remarks and any subsequent retaliation, those claims are time-barred. Accordingly, summary judgment is granted to defendants as to Count I.

         II. Count II - Retaliation Pursuant to LMRDA and Fair Duty of Representation Pursuant to Labor Management Relations Act (“LMRA”)[10]

         LMRDA Claims[11]

         Plaintiff raises several claims in Count II and describes specific instances of retaliation. The Court will not address the claims in Count II that relate to the International Alliance of Theatrical Stage Employees, AFL-CIO (“IATSE”) because those claims have been dismissed. (See [78].)[12] Further, many of claims against the Local No. 2 and the members of the executive board are time barred. The only timely claims, those that fall within the two-year statute of limitations, are ...

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