Mlinaric v. Parker Hannifin Corp., 87-3112
| Decision Date | 05 August 1988 |
| Docket Number | No. 87-3112,87-3112 |
| Citation | 853 F.2d 927 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Mario MLINARIC, Plaintiff-Appellant, v. PARKER HANNIFIN CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KEITH and ALAN E. NORRIS, Circuit Judges and GEORGE E. WOODS, District Judge. *
Opinion for the Court filed by District Judge Woods:
Plaintiff-appellant Mario Mlinaric appeals the orders of the District Court (1) bifurcating plaintiff's age and national origin discrimination claims; (2) dismissing plaintiff's retaliation claims; (3) directing a verdict in favor of defendant-appellee Parker Hannifin Corporation on plaintiff's age discrimination claim; and (4) granting judgment in favor of defendant on plaintiff's national origin discrimination claim. We affirm each order of the District Court.
Plaintiff was born in Italy in 1936, at a time in which Italy occupied a present-day Yugoslavian area known as Crotia. He moved to Rome at the age of seven, remaining there until he immigrated to this country in 1956.
Several months after his arrival, plaintiff settled in Cleveland and began working for Z & W Corporation. Defendant acquired Z & W Corporation in the 1960's. Plaintiff thereafter advanced in skill and wage rates. By 1974, plaintiff attained a Machine Builder and Repair "A" position, one of the top paid positions for hourly workers. Plaintiff continued to work at the Eastlake, Ohio plant until November of 1981, when defendant began to phase out the plant. As a result of the phase-out, defendant transferred plaintiff and many other Eastlake employees to its plant in Wickliffe, Ohio.
The transfer of the Wickliffe employees to the Eastlake plant took place in accordance with a collective bargaining agreement (CBA) between defendant and plaintiff's union. Under Article VII of the CBA, plaintiff and other transferred employees could use their superior seniority to "bump" less senior employees "provided they had the skill and ability to perform the work involved."
Defendant's Wickliffe management held several meetings with hourly employees and the union in an effort to facilitate the transfer of Eastlake employees into Wickliffe and to improve the morale of affected Wickliffe employees. By January of 1982, approximately 230 personnel moves had occurred. To minimize the changes, defendant and the union agreed to interpret the "skill and ability to perform" bumping prerequisite as requiring a bumping employee to have the ability to "walk up and do" the desired job. Plaintiff testified and introduced other evidence that the "skill and ability" standard was the sole requirement for bumping; the majority of evidence indicated, however, that defendant and the union applied the "walk up and do" standard. For example, a former union representative admitted that the union filed a grievance on behalf of an employee to force the defendant to adhere to the "walk up and do" standard.
Prior to transferring, plaintiff and other Eastlake employees were informed as to possible positions into which they could bump. Plaintiff's seniority and job experience enabled him to bump into almost any job in the Wickliffe plant. Defendant advised all employees to consider bumping into lesser job classifications if they were unsure of their ability to "walk up and do" a particular job. An employee unable to do a particular job would be "disqualified." Disqualification meant demotion to the least senior available job in the plant. Plaintiff elected to bump into the Machine Builder and Repairman (All Around) job, a position with a job description identical to the Machine Builder and Repair "A" position plaintiff held at the Eastlake plant. The Eastlake plant, however, did not contain the automatic equipment present in the Wickliffe plant. Automatic equipment constituted the overwhelming majority of the primary production and repair work at Wickliffe. Plaintiff nevertheless assured John Minarich, the Wickliffe plant manager, that plaintiff could perform the job.
Soon after plaintiff's transfer, Minarich and John Dorsey, plaintiff's immediate supervisor, found that plaintiff was not satisfactorily performing his job. Although plaintiff experienced difficulty making some of the repairs, his main difficulty was that he was too slow in repairing the machines. Minarich advised Dorsey to keep notes documenting plaintiff's performance. Several of defendant's managers, from approximately December of 1981 to January of 1982, warned plaintiff that he was in danger of being disqualified. Defendant's managers provided plaintiff with parts books and manuals, while continuing to monitor plaintiff's performance.
A factor that could have affected plaintiff's ability to efficiently perform repairs was plaintiff's excessive use of valium. On cross-examination, plaintiff admitted that he needed valium to help control his hypertension, but took more valium than his three times a day prescription. Plaintiff stated that he took additional valium because of his asthma condition and his difficulty sleeping at night. He also admitted to taking the medication while at work.
In February of 1982, after plaintiff had worked on the machine builder-repairer job for ten weeks, defendant disqualified plaintiff. Plaintiff filed a grievance to overturn the disqualification. During the grievance procedure, the union contended that plaintiff was discriminated against and harassed, as shown by the scrutiny of plaintiff by his foreman and the lack of assistance he received from his foreman and fellow workers. Defendant, on the other hand, contended that plaintiff was given a fair sampling of repair work, but failed to perform in a "workmanlike" manner. Defendant and the union subsequently agreed that plaintiff would be reinstated and given a second chance to perform the job.
Once again, notes were kept of plaintiff's performance. After three weeks on the job, plaintiff's performance remained substandard, in defendant's view, resulting in a second disqualification. The union again grieved plaintiff's disqualification, raising the same arguments as before. Defendant contended that plaintiff's performance remained substandard despite the instruction he was given on machine assemblies and the help he received from co-workers. This time, however, the grievance was not resolved. The union had the option of taking plaintiff's unresolved grievance to a strike vote, but declined to do so. As a result, plaintiff was disqualified and placed in his present hourly position at defendant's Wickliffe plant.
Plaintiff filed suit in February of 1984. Prior to trial, defendant moved to bifurcate issues of liability from damages, as well as the non-jury claim (Title VII claim based on national origin) from the jury claims (age discrimination and pendent state claims). The district court denied bifurcation of damages and liability, but granted bifurcation of the jury and non-jury claims. The court also declined to exercise pendent jurisdiction over the state law claims. Thus, at the time of trial, the age discrimination claim remained to be tried to a jury, and the national origin discrimination claim remained to be tried before the court.
After five days of trial before the jury on plaintiff's age discrimination claim, the district court granted a directed verdict in favor of defendant at the close of plaintiff's case. Trial before the court immediately commenced and continued for five additional days on the national origin discrimination claim. The district court thereafter issued a written decision in favor of defendant on the national origin claim.
Plaintiff contends that the district court erred in bifurcating his age and national origin discrimination claims. Plaintiff asserts that bifurcation was inappropriate due to the overlap of facts and issues in the two claims. He also believes that bifurcation hindered the ability of his witnesses in the national origin claim to respond to defendant's questions on cross-examination. We disagree.
F.R.Civ.P. 42(b) provides as follows:
(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
Plaintiff was not entitled to receive, and made no request for, a jury trial on his national origin discrimination claim, which he brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Harris v. Richards Manufacturing Co., 675 F.2d 811 (6th Cir.1982). Plaintiff timely demanded a jury trial on his age discrimination claim.
The Federal Rules of Civil Procedure clearly contemplate separate trials of jury and non-jury issues. The Notes of the Advisory Committee to Rule 39 state that This language at one time was contained in a draft of the rules, but was removed since "the power is adequately given to Rule 42(b)." Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 513 n. 3 (1959) (Stewart, J., dissenting).
The decision of whether to try issues separately rests within a trial court's sound discretion. An abuse of discretion will be found only where a...
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...to a collective bargaining agreement does not give rise to an inference of discrimination. See Mlinaric v. Parker Hannifin Corp., 853 F.2d 927, at *5 (6th Cir. 1988) (unpublished table decision). Here, MacDonald testified that Gaffney inquired into Vinnay's interest in the job before MacDon......