Catley v. Graphic Com. Intern. Union, Local 277-M

• Decision Date: 23 October 1997
• Docket Number: No. 95-C-0177.,95-C-0177.
• Citation: 982 F.Supp. 1332
• Parties: Vickie A. CATLEY, Plaintiff, v. GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 277-M, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

982 F.Supp. 1332

Vickie A. CATLEY, Plaintiff, v. GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 277-M, Defendant.

No. 95-C-0177.

United States District Court, E.D. Wisconsin.

October 23, 1997.

COPYRIGHT MATERIAL OMITTED

Sally A. Piefer, Shindell & Shindell, Milwaukee, WI, for Plaintiff.

Naomi E. Soldon, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Milwaukee, WI, for Defendant.

MEMORANDUM AND ORDER

GORENCE, United States Magistrate Judge.

Plaintiff Vickie Catley filed this civil action on February 15, 1995, alleging sex discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1991. On March 17,1995 defendants, Graphic Communications International Union, Local 277M (GCIU) and Thomas Peavler filed their answer to plaintiff's complaint. On March 20,1996, pursuant to the stipulation of the parties, defendant Thomas Peavler, an agent of GCIU, was dismissed without prejudice from this action. The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Rule 73(b) of the Federal Rules of Civil Procedure.

The complaint alleges that the defendant discriminated against the plaintiff in the terms and conditions of her employment because of her female gender in violation of § 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e(C)(3). In her first claim alleging sex discrimination, the plaintiff alleges that the defendant discriminated against by acquiescing in unlawful conduct, and refusing to provide her assistance in pursuing grievances regarding sexual harassment. (Plaintiff's Complaint ¶ 28). She further alleges the defendant failed to assist her in filing grievances she wanted to pursue regarding sexual harassment and by ultimately assisting in her termination. (Complaint ¶¶ 29, 33). In her second claim, alleging sexual harassment against the union, the plaintiff alleges that Thomas Peavler and other union members, many of whom were union representatives, engaged in sexual harassment of the plaintiff and that the union is responsible for the conduct of each of these individuals under agency principles. (Complaint ¶ 35). She also alleges that the union knowingly permitted the sexually harassing conduct of its members and representatives by failing to investigate or correct instances of sexual harassment reported by the plaintiff. (Complaint ¶ 36). The plaintiff received a written notice of termination on August 12, 1991. (Complaint ¶ 24).

Prior to filing this action, the plaintiff filed a timely complaint with the Equal Employment Opportunity Commission (EEOC) on June 1, 1992. (Complaint ¶ 26[a]). The complaint, which named defendant GCIU as the entity that discriminated against her based on her sex, charged that the GCIU failed to represent her with respect to the incidents resulting in her discharge on August 12, 1991. On November 22, 1994, the plaintiff received a right to sue notice from the EEOC. (Complaint, ¶ 26[d]).

Presently pending before this court are the defendant's motion for summary judgment, the plaintiff's motion to strike additional materials submitted with the defendant's reply brief on the timeliness of the sexual harassment issue, and the defendant's motion for an order to accept additional evidentiary materials submitted with its reply brief. These motions will be addressed herein.

PLAINTIFF'S MOTION TO STRIKE AND DEFENDANT'S MOTION TO ACCEPT ADDITIONAL EVIDENTIARY MATERIALS

The plaintiff seeks an order striking additional material submitted with the defendant's reply brief on the timeliness of the sexual harassment issue asserting that such submissions are in violation of Local Rule 6.01(b) (E.D.Wis.). The defendant has filed a motion for an order to accept additional evidentiary materials submitted with its reply brief.

The plaintiff argues that because defendant did not submit the Affidavit of Suzanne J. Westlow (Westlow Aff.) with its initial brief on the timeliness of the plaintiff's sexual harassment claim, instead including the affidavit with its reply brief, the affidavit should be stricken from the record. Local Rule 6, Section 6.01(a) (E.D.Wis.) states that every motion should be accompanied by supporting briefs, affidavits or other documents and, if the movant fails to do so, the court can deny the motion. Section 6.01(b) of the Rule provides that the opposing party should serve an answering brief and affidavits or other documents and that the movant may then serve a reply brief to this answer.

As observed in Baugh v. City of Milwaukee, 823 F.Supp. 1452, 1456-57 (E.D.Wis. 1993), aff'd, 41 F.3d 1510 (7th Cir.1994), "[i]t seems absurd to say that reply briefs are allowed but that a party is proscribed from backing up its arguments in reply with necessary evidentiary material." Furthermore, "where the reply affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the opposing party new reasons for the entry of summary judgment, reply papers — both briefs and affidavits — may properly address those issues." See also, Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1134 n * (7th Cir.1996) (quoting Baugh, 823 F.Supp. at 1457).

The court notes that the plaintiff relies upon Center Development Venture v. Kinney Shoe Corp. 757 F.Supp. 34, 36 (E.D.Wis.1991) and Boustead v. Barancik, 151 F.R.D. 102, 106 (E.D.Wis.1993). However, unlike those cases, the challenged affidavit in this case merely responds to an issue raised by the plaintiff in her responsive brief — it does not raise new factual assertions which would leave the opposing side with no opportunity to respond.

The defendant's affidavit supports its position that the plaintiff was represented by counsel at the time she filed her claim with the EEOC and is relevant to the timeliness issue. That issue was raised by the plaintiff when she suggested that the court apply a liberal standard in deciding whether the plaintiff had presented her sexual harassment claim to the EEOC. See Plaintiff's Response Brief on the Timeliness of the Sexual Harassment Issue at 7. In light of the foregoing, the plaintiff's motion to strike will be denied and the defendant's motion for an order to accept additional evidentiary materials submitted with its reply brief will be granted.

SUMMARY JUDGMENT MOTION

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). "Material facts" are those facts that, under the applicable substantive law, "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of showing the needlessness of a trial — (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law — is upon the movant.

However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267, 106 S.Ct. at 2519-20; see also, Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. "Rule 56(c) mandates the entry of summary judgment, ... upon motion, against a party who fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552 (emphasis added). All inferences are taken in the light most favorable to the nonmoving party. Matter of Wade, 969 F.2d 241, 245 (7th Cir.1992). Defeating summary judgment requires more than just a "swearing match"; rather, the nonmoving party must present some evidence that a genuine issue of material fact exists. Id. Nonetheless, matters of credibility are not subject to resolution upon summary judgment. Wilson v. Williams, 997 F.2d 348, 350 (7th Cir.1993).

The defendant seeks summary judgment pursuant to Fed.R.Civ.P. 56, asserting that the plaintiff cannot establish a fair representation claim as a matter of law because she did not file a grievance at any time during her employment or upon her termination. The defendant further contends that the plaintiff cannot meet the "extremely high" standard for a fair representation claim and, therefore, it is entitled to summary judgment.

In opposing the motion, the plaintiff contends that the defendant is attempting to convert her Title VII claim into a claim cognizable only under § 301 of the Labor Management Relations Act (LMRA), the federal law which governs disputes under a collective bargaining agreement. The plaintiff further contends that there are a "myriad" of contested material facts supporting her claims that she was subjected to a "severe and pervasive hostile environment to which the [defendant] acquiesced and in which it participated." Plaintiff's Brief Opposing Defendant's Motion for Summary Judgment at 1. She also alleges that the defendant "allowed her employer to terminate her without providing to her the representation to which she was entitled because of her gender and her complaints of sexual harassment by male union members." Id. at 1-2.

As a result of the divergent approaches taken by the parties in addressing the summary judgment motion, the court conducted a hearing to hear argument on the issues of whether the...