Allensworth v. General Motors Corp., 89-3738

• Decision Date: 02 October 1991
• Docket Number: No. 89-3738,89-3738
• Citation: 945 F.2d 174
• Parties: 56 Fair Empl.Prac.Cas. (BNA) 1660, 57 Empl. Prac. Dec. P 41,030 Joseph ALLENSWORTH, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION and United Auto Workers Union, Local 662, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 174

945 F.2d 174

56 Fair Empl.Prac.Cas. (BNA) 1660,

57 Empl. Prac. Dec. P 41,030

Joseph ALLENSWORTH, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION and United Auto Workers Union Local 662, Defendants-Appellees.

No. 89-3738.

United States Court of Appeals Seventh Circuit.

Argued Nov. 1, 1990.

Decided Oct. 2, 1991.

Lorine Brown Regulus, Indianapolis, Ind., on briefs, for plaintiff-appellant.

Nora L. Macey (argued), Barry Macey, Segal & Macey, Wendell R. Tucker, Gregory L. Padgett (argued), Baker & Daniels, Indianapolis, Ind., for defendants-appellees.

Before BAUER, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.

CUDAHY, Circuit Judge.

Joseph Allensworth brought suit against his employer and his union representative alleging that they discriminated against him based upon his race in violation of 42 U.S.C. § 1981. Finding Allensworth's claims to be foreclosed by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the district court granted summary judgment in favor of both defendants. We affirm.

I.

Joseph Allensworth is an African-American journeyman pipefitter employed by General Motors (GM) at its Delco-Remy Division plant (Delco-Remy) in Anderson, Indiana. He is a member of Local 662 of the United Auto Workers Union (the UAW), the exclusive bargaining agent of production and maintenance employees at the plant. Allensworth became a journeyman pipefitter by completing an apprentice training program jointly administered by GM and the UAW. The apprentice program at Delco-Remy typically requires four years of study and training. To become a journeyman, the apprentice must successfully complete all required coursework and must compile the required number of shop hours actually working in the trade. An apprentice who fails satisfactorily to perform these requirements is subject to removal from the program.

Allensworth's tenure in the Delco-Remy apprentice program was not typical: it took him five years to complete the program because he was removed two times for academic reasons. Allensworth joined Delco-Remy's apprentice program as an apprentice pipefitter on September 19, 1983. Less than two years later, on June 18, 1985, Allensworth was removed from the apprentice program because he twice failed a required course--Math-2. According to local practice, an apprentice who did not maintain a C average or failed the same course twice would be removed. In this case the Apprentice Committee agreed, however, to permit Allensworth to return to the program if he retook and passed Math-2. On January 13, 1986, after he took and passed Math-2, Allensworth was accordingly reinstated in the apprentice program. His reinstatement was made subject to the condition that he would be permanently removed if he failed to meet the requirements of the program in the future.

In May 1987, Allensworth was removed from the apprentice program for the second time because he failed another required course--Basic Air Conditioning Repair (BACR). He was removed even though he had successfully maintained a C average and had never taken (or failed) BACR before. Delco-Remy appears to have no formal policy or practice for dealing with this type of situation, namely an academic failure following a conditional reinstatement. According to the Apprentice Committee, however, the integrity of the apprentice program would have been compromised if Allensworth had not been removed for failing a required course after he had already been removed once and conditionally reinstated. The Apprentice Committee resolved, therefore, to remove Allensworth from the program, but it also agreed to consider reinstatement again if he successfully completed the BACR course by January 1988. In addition, Allensworth was offered work in the Job Bank with payment at his apprentice rate of pay. Although he declined the Job Bank offer because it would require him to do production work, Allensworth received GM-UAW supplemental unemployment benefits amounting to ninety-five percent of his hourly pay.

Allensworth's claims of racial discrimination fall into two categories. First, he alleges that he was harassed because of his race from the beginning of his apprenticeship. He maintains that he was the butt of racial jokes and other forms of verbal abuse and that he was struck on the head by an unidentified co-worker. He also claims that, unlike white apprentices, he was not provided quarterly progress reports for one year and was required to work by himself because journeymen refused to work with him. Allensworth presented these complaints to the Union in February 1987. In response, the Union convened a meeting between Allensworth and the employees whom he accused of racial harassment, all in the presence of a company representative. Both the Union's and the company's representatives informed the employees in clear terms that their alleged behavior would not be tolerated and that they should "knock-off" whatever was going on. At the close of the meeting, Allensworth and his colleagues shook hands and agreed to forget about the matter. Allensworth concedes that the racial harassment ceased after this meeting.

Allensworth's second complaint involves what he perceives to be racial discrimination surrounding his second removal from the apprentice program. In June 1987, Allensworth brought this charge to the Union's attention and requested relief. He was referred to Local 662's Civil Rights Committee. Although the Civil Rights Committee made no finding of racial discrimination on the part of the Apprentice Committee, it recommended that the Union demand Allensworth's reinstatement to the apprentice program. The Union accordingly negotiated with GM and obtained management's consent to reinstate Allensworth conditioned upon his agreement to retake BACR, complete his shop hours and withdraw pending charges against GM. But Allensworth rejected this offer. He also elected not to pursue contractual or internal union procedures to set aside his removal from the apprentice program. The Union, for its part, did not take any further action with respect to Allensworth's complaint because Union officials deemed the settlement fair and believed that there was little chance of obtaining a more favorable one.

In November 1987, after Allensworth submitted a transcript showing that he had taken and passed BACR at another school, the Apprentice Committee reinstated him to the apprentice program. Allensworth returned to work, completed his shop hours and became a journeyman pipefitter in February 1988. When he became a journeyman, Allensworth's seniority was reduced by thirteen months to account for the two periods--in 1985 and again in 1987--when he was removed from the apprentice program. This adjustment was required by paragraph 137(b) of the GM-UAW National Agreement, which provides that the skilled trades seniority date of an apprentice upon graduation must be adjusted to include only the calendar days spent by the apprentice in the program.

In December 1988, Allensworth filed a complaint against GM and the UAW alleging that they discriminated against him based upon his race in violation of 42 U.S.C. § 1981. GM filed a motion to dismiss the amended complaint and the UAW filed for summary judgment. Treating both motions as motions for summary judgment, the district court entered judgment in favor of GM and the UAW. The district court found that Allensworth failed to establish a prima facie case of discrimination against the Union because there was no evidence that the Union represented him differently from similarly situated white employees or that the Union's conduct as his bargaining representative was motivated by racial animus. The district court similarly ruled against Allensworth on his claim against the company. Relying upon Patterson, the court held that Allensworth's claim against GM was not actionable under the terms of section 1981 because it did not involve racial discrimination in the creation of his employment contract. The court observed that Allensworth failed to demonstrate any "divergence in the explicit terms" of the contract. It reasoned that the racial harassment and discrimination which he allegedly suffered, moreover, amounted in essence to post-formation conduct not covered by section 1981.

On appeal, Allensworth advances just two arguments. First, he concedes that there was no overt divergence in the terms of his employment contract with GM. He contends, however, that GM's failure to intervene or prevent the racial harassment and discrimination to which he was subjected from the beginning of his apprenticeship demonstrates that the company implicitly refused to enter into the apprentice program with him on racially neutral terms. Second, he maintains that the UAW's failure to pursue a grievance after his second removal from the apprentice program amounts to racial discrimination in the enforcement of contracts proscribed by section 1981 even after Patterson.

II.

We review the district court's entry of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party, here Allensworth. Summary judgment must be entered whenever "there is no genuine issue as to any...