Harper v. Autoalliance Intern., Inc.

• Decision Date: 16 December 2004
• Docket Number: No. 03-2081.,03-2081.
• Citation: 392 F.3d 195
• Parties: Derrick E. HARPER, Plaintiff-Appellant, v. AUTOALLIANCE INTERNATIONAL, INC., AAI Employee Services Co., L.L.C., Jeffrey Kelly, and Allen Childress, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

392 F.3d 195

Derrick E. HARPER, Plaintiff-Appellant, v. AUTOALLIANCE INTERNATIONAL, INC., AAI Employee Services Co., L.L.C., Jeffrey Kelly, and Allen Childress, Defendants-Appellees.

No. 03-2081.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted: September 15, 2004.

Decided and Filed: December 16, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED: Laura A. Brodeur, Honigman, Miller, Schwartz & Cohn, Detroit, Michigan, Carlos F. Bermudez, Associate General Counsel, International Union, Uaw, Detroit, Michigan, for Appellees. ON BRIEFE: Satch U. Ejike, Law Offices of Satch Ejike, Ferndale, Michigan, for Appellant. Laura A. Brodeur, William D. Sargent, Cameron J. Evans, Honigman, Miller, Schwartz & Cohn, Detroit, Michigan, Carlos F. Bermudez, Associate General Counsel, International Union, UAW, Detroit, Michigan, for Appellees.

Before: BOGGS, Chief Judge; CLAY, Circuit Judge; HAYNES, District Judge.^*

OPINION

CLAY, Circuit Judge.

Plaintiff Derrick E. Harper appeals the July 17, 2003 order of the district court, denying his motion to remand this case to the Wayne County Circuit Court and granting summary judgment in favor of Defendants AutoAlliance International Inc., AAI Employee Services Co., L.L.C., Jeffrey Kelly, and Allen Childress on his claims for retaliatory discharge, in violation of the Michigan Worker's Disability Compensation Act of 1969, MICH. COMP. LAWS § 418.301(11); retaliatory discharge in violation of Michigan's Elliot-Larson Civil Rights Act, MICH. COMP. LAWS § 37.2101; and abuse of process against Defendants Kelly and Childress. For the reasons that follow, we AFFIRM the district court's order.

I. Background

A. Substantive Facts¹

Plaintiff Derrick E. Harper ("Harper") began working for Mazda Motor Manufacturing, which later became AutoAlliance International, Inc. ("AutoAlliance") when Mazda formed a joint venture with Ford Motor Company, on September 11, 1989. In 1997, Harper's employment was transferred from AutoAlliance to AAI Employee Services Co., L.L.C. ("AAI"). At the time of the transfer, Harper understood that, as a member of the United Automobile Workers' Union ("UAW"), the conditions and terms of his employment were governed by the collective bargaining agreement ("CBA") between Ford and the UAW. The CBA authorizes AAI to implement certain work rules, such as AAI's rules against theft, which are at issue in this case. Defendants claim that Harper was discharged for violating AAI's rules against theft.

Defendants' explanation for Harper's discharge is based upon a March 8, 2000 incident in which Harper allegedly stole a cellular phone from a co-worker at AAI's Flat Rock, Michigan Manufacturing facility. Harper was suspended on March 14, 2000, pending an investigation into the incident. On March 21, 2000, after conducting an investigation, AAI terminated Harper's employment for theft. That same day, Defendant Jeffrey Kelly of UAW Local 3000 filed a grievance on Harper's behalf. Kelly turned the grievance into union representative Robert Taylor, who signed it and immediately presented it to AAI's employee relations department. On May 11, 2001, the union withdrew the grievance because it "believed it could not successfully arbitrate the grievance." Harper did not invoke his right under the CBA to appeal the grievance withdrawal.

Also on the day of his termination, Harper filed an unfair labor practice charge with Region 7 of the National Labor Relations Board ("Board"), alleging that the union had failed and refused to represent him. The Board dismissed the charge on August 7, 2001. Harper appealed the dismissal to the Board's general counsel's office on August 24, 2001, but he was denied relief.

B. Procedural History

On June 28, 2002, Harper, an African-American, filed a complaint in Wayne County Circuit Court against Defendants AutoAlliance, AAI, Kelly, and Allen Childress, a supervisor at AutoAlliance's facility in Flat Rock, Michigan. Harper alleged that Childress gave preferential treatment to non-minority staff, and that after Harper filed a grievance and then a charge with the Equal Employment Opportunity Commission ("EEOC"), Childress retaliated against him by imposing unfavorable working conditions. Harper further alleged that Kelly retaliated against him by refusing to "process, present, and espouse Plaintiff's labor grievances to the full extent of company policy." Harper claimed that, following his successful claim for worker's compensation benefits stemming from a back injury, AutoAlliance and AAI retaliated by subjecting him to various unfavorable working conditions and to the "untrue and convenient allegation" that Harper had stolen the cellular telephone of co-worker Terry Stevens. According to Harper's complaint, his termination for theft was "a pretext for Defendants' actual retaliatory motive and actions against Plaintiff for Plaintiffs' EEOC complaint and Worker's Compensation claim, both in 1998." Moreover, after his termination, Kelly and Childress, acting on their purported "animus and malice" for Harper, allegedly continued to conspire to harass and intimidate Harper by obtaining multiple personal protection orders against him.²

Premised on the above factual allegations, Harper's complaint stated the following claims: (1) retaliatory discharge, in violation of the Michigan Worker's Disability Compensation Act of 1969, MICH. COMP. LAWS § 418.301(11); (2) retaliatory discharge in violation of Michigan's Elliot-Larson Civil Rights Act, MICH. COMP. LAWS § 37.2101; (3) retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a); and (4) abuse of process against Kelly and Childress for having obtained personal protection orders against Harper for "ulterior and improper purposes." Harper served Kelly on July 24, 2002 and AutoAlliance, AAI, and Childress on July 25, 2002.

On August 14, 2002, AutoAlliance, AAI and Childress filed a notice of removal of Harper's complaint to the United States District Court for the Eastern District of Michigan. The notice of removal asserted subject matter jurisdiction on the basis of federal question jurisdiction, given that Harper's complaint alleged a federal Title VII claim. The notice also asserted that some or all of Harper's state law claims were preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"). Defendant Kelly did not sign the notice of removal, which was executed only by counsel for AutoAlliance, AAI, and Childress. However, the body of the notice stated, "Counsel for AutoAlliance, AAI and Childress has obtained concurrence from counsel for the UAW, who represents defendant Jeffrey Kelly, in removing this matter." In addition, on August 21, 2002, Kelly answered the complaint and asserted "that the proper jurisdiction and venue for this case is the U.S. District Court for the Eastern District of Michigan, Southern Division."

On August 28, 2002, Harper moved to remand the case to Wayne County Circuit Court. Harper argued that the notice of removal was invalid because Kelly did not join in the removal action and because his claim under the Michigan Worker's Disability Compensation Act is not removable under 28U.S.C. § 1445(c). Defendant Kelly opposed Harper's motion to remand on September 19, 2002, noting that he had provided his consent and joined the notice of removal filed by AutoAlliance, AAI, and Childress.

The court denied Harper's motion to remand, finding that all of the defendants had joined the notice of removal and that the court had supplemental jurisdiction under 28 U.S.C. § 1367(a) over Harper's state law claims, which were part of the same case or controversy as the federal Title VII claim. The court further held that removal was proper notwithstanding 28 U.S.C. § 1445(c), which prohibits the removal of a civil action "arising under the workmen's compensation laws" of a state. Although the Michigan Worker's Disability Compensation Act prohibits retaliation, the court held that Harper's claim of retaliation for violating this public policy did not arise under that Act.

On November 26, 2002, upon stipulation of the parties, Harper filed an amended complaint that deleted the Title VII claim. Thereafter, Defendants answered Harper's amended complaint, the parties filed a plan for discovery and other pre-trial matters, and then engaged in discovery. During the discovery period, the district court granted one motion to compel, denied another, and granted a motion for protective order. On May 1, 2003, after the completion of discovery, Defendants filed a motion for summary judgment, to which Harper subsequently responded.

On May 7, 2003, almost a week after the dispositive motion cutoff date, Harper filed a motion to dismiss and remand for lack of subject matter jurisdiction. The district court denied Harper's second motion to remand and granted Defendants' summary judgment motion. The court rejected Defendants' argument that Harper's state law claims were preempted by § 301 of the LMRA, holding that only state law claims remained in the case. Nevertheless, the court held that it was proper to continue to exercise jurisdiction over the case to avoid delay and conserve judicial resources. The court then proceeded to address Harper's state law claims on the merits, finding that Harper could not establish either a prima facie case of retaliation or that Defendant's explanation for his discharge was a pretext for discrimination. The court also found that Harper could not establish an abuse of process claim based solely on allegations of Childress and Kelly's alleged harassing phone calls.

Harper filed a notice of appeal with respect to the July 17, 2003 district court order denying his motion to dismiss and remand and granting Defendants' motion for summary judgment. Harper has not challenged the district court's dismissal of his complaint on the merits. Rather, he has limited his argument to the district court's assertion...