Burden v. International Longshoremen's Ass'n

• Decision Date: 30 April 2007
• Docket Number: Civil Action No. 05-0582-WS-M.
• Citation: 510 F.Supp.2d 618
• Court: U.S. District Court — Southern District of Alabama
• Parties: Norma BURDEN, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL # 1410, et al., Defendants.

Page 618

510 F.Supp.2d 618

Norma BURDEN, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL # 1410, et al., Defendants.

Civil Action No. 05-0582-WS-M.

United States District Court, S.D. Alabama, Southern Division.

April 30, 2007.

COPYRIGHT MATERIAL OMITTED

Norma Burden, Mobile, AL, Pro se.

J. Cecil Gardner, Mary Elizabeth Olsen, Michael Vance McCrary, Gardner, Middlebrooks, Gibbons, Kittrell & Olsen, P.C., Ronnie L. Williams, James E. Robertson, Jr., Mobile, AL, for Defendants.

ORDER

STEELE, District Judge.

This matter is before the Court on motions for summary judgment filed by defendants International Longshoremen's Association, Local # 1410 ("the Union"), Otis Washington, and Lloyd Gandy. (Docs.74, 77, 81).¹ The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs.75-77, 82, 84), and the motions are ripe for resolution. After carefully considering the foregoing, as well as other relevant material in the file, the Court concludes that the motions are due to be granted.

BACKGROUND

The plaintiff, a longshore worker, sued the defendants and others for sexual harassment and retaliation in violation of Title VII. (Doc. 1). After obtaining counsel, she filed the amended complaint under which she is now traveling. (Doc. 40). The amended complaint asserts causes of action against the Union under Title VII for sexual harassment, retaliation, and constructive discharge. It also asserts claims against all defendants for invasion of privacy and intentional infliction of emotional distress. (Id. at 5-8).

EVIDENCE OF SEXUAL HARASSMENT

The plaintiff's version of events is drawn from a number of documents² and consists of the following:

• On March 19, 2005, Gandy picked up the plaintiff, firmly pressed his body against hers, and made an unidentified sexual statement.

• On April 23, 2005, Washington twice told the plaintiff he heard that she had the million dollar fuck. Later, Washington made a statement about twenty dollar women. He then said a man could give the plaintiff twenty dollars for sexual privileges.

• Defendant J. Jones pinched the plaintiff on her buttocks and came to her home on two occasions.

• Defendant Smokey told the plaintiff he wanted to ride her like some kind of animal and had all kinds of lewd ways he wanted to have sex.

• On many occasions, James Bell approached the plaintiff about her needing a good man and the things he would do for her.

• Willie Wilkenson inquired of the plaintiff what underwear she was wearing.

• On April 22, 2005, A. Gandy, with whom the plaintiff had worked three days previously, visited her home.

• G.M. Davis told the plaintiff he wanted to buy her breakfast when he wakes up with her.

• Harold Thomas put his hand on the plaintiff's shoulder and called her baby and honey.

DETERMINATIONS OF UNCONTROVERTED FACT

Neither the plaintiff nor any of the defendants is or ever was an officer or employee of the Union. The plaintiff was a member of the Union, and the defendants were either Union members or, possibly, unaffiliated with the Union. (Doc. 75, Taite Declaration, ¶¶ 5-6).

The Mobile Steamship Association ("the Association") is an association of waterfront employers operating at the Alabama State Docks. CSA Equipment Company ("CSA") is one of the Association's members. The Association operates a hiring center, at which union members present themselves for work and are selected for work (or not) on a daily basis by foremen, who are Union members but who, as foremen selected by the employer, act as representatives of the employer. The plaintiff was sometimes selected by CSA. (Doc. 75, Taite Declaration, ¶¶ 4-6).

None of the alleged harassment occurred on Union property or at a Union gathering. Instead, each incident of alleged harassment (other than three visits to the plaintiff's home) occurred either at the hiring center while the plaintiff awaited selection for employment or at the State Docks while the plaintiff was working for CSA. (Doc. 1 at 3; Doc. 75, Exhibit 2; Doc. 77, Exhibit 2 at 26).

The plaintiff complained to the Union about sexual harassment on April 23, 2005. The Union advised her to take her complaint to CSA, which she did the same day. The Union also provided the plaintiff a grievance form, which she dated April 28, 2005 and amended on May 1, 2005. CSA received the plaintiff's written complaint and began an investigation on or before May 1, 2005. The Union assisted the investigation in every way that CSA requested. (Doc. 75, Taite Declaration, ¶¶ 8-9; id., Exhibit 2; Doc. 77, Exhibit 2 at 26).

DISCUSSION

The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367, as well as 42 U.S.C. § 2000e-5(f)(3). Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) and 42 U.S.C. § 2000e-5(f)(3).

Summary judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted).

A. Sexual Harassment.

The amended complaint alleges that the plaintiff was subjected to sexual harassment by the individual defendants and others. (Doc. 40 at 4). The Union argues that the plaintiff's suit depends on the "fundamental misunderstanding" that the Union employed the plaintiff. (Doc. 76 at 6). As noted, it is uncontroverted that the Union did not employ the plaintiff. However, while the plaintiff does assert that the Union employed her, she does not peg her Title VII claim to that assertion. Instead, her amended complaint invokes 42 U.S.C. § 2000e-2(c), (Doc. 40, ¶ 1), which addresses the liability of "labor organizations." She does not invoke Section 2000e-2(a), which addresses the liability of "employers."

Section 2000e-2(c) provides for union liability under three subsections. First, a union may be liable for "discriminat[ing] against ... any individual because of [her] ... sex." 42 U.S.C. § 2000e-2(c)(1). Second, a union may be liable for hindering an individual's employment opportunities, or adversely affecting her status as an employee or applicant, because of her sex. Id. § 2000e-2(c)(2). Third, a union may be liable for "caus[ing] or attempt[ing] to cause an employer to discriminate against an individual in violation of this section." Id. § 2000e-2(c)(3), The plaintiff does not identify which of these subsections she is traveling under, but it appears that only the first and last of them is potentially in play. See Thorn v. Amalgamated Transit Union, 305 F.3d 826, 832 (8th Cir.2002) (only these subsections were relevant to the plaintiffs sexual harassment claim against her union).

As noted, it is uncontroverted that all alleged harassment, other than three visits to the plaintiff's home, occurred at the State Docks and the hiring center — both places controlled by the employer — while the plaintiff was an employee and an applicant for employment, respectively. Section 2000e-2(c) contains no "language imposing upon unions an affirmative duty to investigate and take steps to remedy employer discrimination." Thorn, 305 F.3d at 832. Rather, that section imposes liability only if "the union itself instigated or actively supported the discriminatory acts." Eliserio v. United Steelworkers of America Local 310, 398 F.3d 1071, 1077 (8th Cir.2005) (internal quotes omitted); accord EEOC v. Pipefitters Local 597, 334 F.3d 656, 660-61 (7th Cir.2003); Anjelino v. New York Times Co., 200 F.3d 73, 95-96 (3rd Cir.1999). The mere fact that the workplace harassment was perpetrated by union members is insufficient to support liability, because "[u]nions have no duty to take remedial action for discriminatory acts by their individual members." Eliserio, 398 F.3d at 1077. Thus, "passive acquiescence" in workplace discrimination by union members is "non-actionable."' Thorn, 305 F.3d at 833. Absent any Eleventh Circuit authority to the contrary, the Court accepts these propositions as reflective of governing law.³

The question becomes whether there is evidence sufficient to support a genuine issue of material fact as to whether the Union, instigated or actively supported the alleged workplace harassment. The plaintiff's only complaint concerning the Union's conduct is that, when she approached its president and told him what was happening, he said it was only normal because she was an attractive woman. (Doc. 75, Exhibit 2 at 6). This may constitute "passive acquiescence" in workplace harassment, but it does not constitute "active support" of the harassment.

A union may actively support workplace harassment if it refuses to file a grievance or otherwise assert a claim with the employer, on the plaintiffs behalf. Thorn, 305 F.3d at 833. Here, however, it is uncontroverted that the Union advised the plaintiff to bring her complaint to CSA's attention, that it promptly provided her a grievance form, and that it cooperated fully in the employer's ensuing investigation. Under these circumstances, as a matter of law the Union did not actively support workplace harassment of the plaintiff.

The three visits to the plaintiff's home did not occur at the workplace, but they are governed by the same principles. Be, cause "[u]nions have no duty to take...