Douglass v. United Auto Workers, Local 31
| Citation | 368 F.Supp.2d 1234 |
| Decision Date | 31 March 2005 |
| Docket Number | No. CIV.A. 03-2394CM.,CIV.A. 03-2394CM. |
| Parties | Kim DOUGLASS, Plaintiff, v. UNITED AUTO WORKERS, LOCAL 31, Defendant. |
| Court | United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas |
Kim F. Douglass, Kansas City, MO, pro se.
Bruce C. Jackson, Jr., Arnold, Newbold, Winter, Jackson and Jocoby, PC, Kansas City, MO, for Defendant.
On August 5, 2003, Kim Douglass, a pro se plaintiff, brought suit against defendant United Auto Workers ("UAW"), Local 31 claiming race and gender discrimination and a hostile work environment in violation of the Civil Rights Act of 1964 ("Title VII"), age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), disability discrimination and failure to accommodate in violation of the Americans with Disabilities Act of 1990 ("ADA"), Occupational Safety and Health Act ("OSHA") violations, violation of UAW's duty of representation and failure to represent, and requesting declaratory and injunctive relief. Plaintiff also brought suit against General Motors Corporation ("GM"), case number 03-2325. The two cases were consolidated for discovery purposes only. Both GM and UAW have filed summary judgment motions. Although many of the claims against GM and UAW are the same or similar, the court will address the defendants' motions separately. Pending before the court is UAW's Motion for Summary Judgment (Doc. 22).
As a preliminary matter, plaintiff failed to specifically controvert any facts submitted by UAW. Therefore, pursuant to D. Kan. Rule 56.1(a), all facts submitted by UAW are deemed admitted by plaintiff.
Plaintiff is an African-American female who was born on November 6, 1956. Plaintiff was hired by GM as an hourly employee on July 14, 1977, and worked at the GM Leeds Plant, located in Kansas City, Missouri, until it closed in 1987. Plaintiff transferred to the Fort Wayne, Indiana GM plant in September 1991. In September 1994, plaintiff transferred back to GM's Kansas City, Kansas Fairfax plant.
Plaintiff became a member of UAW Local 31 and UAW in September 1994. GM and UAW are parties to a national collective bargaining agreement, and UAW Local 31 and GM are parties to a local collective bargaining agreement. Both collective bargaining agreements govern the hours, wages, working conditions and other terms and conditions of employment of bargaining unit employees employed at the Fairfax plant, including plaintiff.
Pursuant to GM's worker's compensation policy and the terms of the collective bargaining agreement, employees with work-related injuries are sent to the plant medical department for medical release and verification of their restrictions. The restrictions are then placed on a Notice of Restriction form and forwarded to an Accommodating Dis-Abled People in Transition ("ADAPT") program placement representative. The ADAPT program, a joint program between UAW and GM, attempts to place GM employees with medical restrictions in jobs that are consistent with the individual's medical restrictions and plant seniority. If ADAPT is unable to place an employee in a position that meets her restrictions, the employee is placed on a paid medical leave of absence.
In October 1994, plaintiff stopped working at the Fairfax plant because of shoulder injuries. Between October 1994 and July 1995, plaintiff was on medical leave and worked only one day because the Fairfax plant did not have available positions within her restrictions.
Plaintiff had knee surgery for a non-work related knee injury in July 1995, and did not return to work until February 2001. During her absence from GM between July 1995 and February 2001, plaintiff received benefits from GM pursuant to the terms of the collective bargaining agreement.
The collective bargaining agreement between GM and UAW provides that employees who have been absent from the plant for more than thirty days can be asked to take a functional capacity examination. The functional capacity examination determines the employee's abilities to perform the physical tasks required to work in various assembly plant jobs. On January 11, 2001, plaintiff took a functional capacity examination. On or about February 6, 2001, GM notified plaintiff that there was a position available within her restrictions and requested plaintiff return to work on February 12, 2001. Plaintiff worked at the Fairfax plant from February 12, 2001, when she was placed on the "battery cable install" job, until March 6, 2001, when she allegedly suffered a right shoulder injury.
Plaintiff returned to work in April 2001, at which time she was placed on the "spare tire job." Plaintiff was placed on the "transmission job" and "starter job" in April or May 2001. Plaintiff believes the spare tire job, the transmission job, the starter job and the battery cable install job were not within her medical restrictions. Plaintiff never filed any grievances over being placed in jobs that she could not perform.
Plaintiff stopped working in May 2001 due to a worker's compensation injury. Plaintiff returned to work in July 2001 and worked in an assembly position until the end of September 2001, when she had surgery on her shoulder. Plaintiff was on paid worker's compensation leave from September 2001 through April 2002.
In January 2002, plaintiff returned to the plant with medical restrictions from Dr. Lowry Jones limiting her to no overhead work. The plant medical director, a white male, and the ADAPT Representative, an African-American female, were unable to place plaintiff in an available position within her restrictions in January 2002, and she was certified for paid leave until February 2002. On or about February 20, 2002, plaintiff returned to the plant with medical restrictions from Dr. Jones stating: Plaintiff did not file a grievance over her attempts to return to work in January and February 2002. Plaintiff never asked John Melton, the bargaining chairperson for UAW Local 31 since 1999, to file a grievance on her behalf with regard to her placement in the ADAPT program, the GM Medical Department's refusal to clear her to return to work, or any other issues regarding her race, age, sex or disability.
In February 2002, plaintiff participated in a two-day functional capacity evaluation ordered by Dr. Jones. On or about March 4, 2002, GM received the results of plaintiff's functional capacity evaluation, which recommended "return to full duty work with no restrictions related to the upper extremities." On April 2, 2002, the plant medical director and ADAPT representative placed plaintiff on the "sticker job," an available position within her new restrictions. The "sticker job" required plaintiff to place stickers in the hood, bumper and trunk of cars. Plaintiff was physically capable of performing this job but alleged it caused her pain. No doctor or medical professional told plaintiff that this job was outside of her medical restrictions. On April 22, 2002, plaintiff requested and received a pass to leave the plant from her supervisor. Plaintiff has not returned to work at GM since that time.
After leaving the Fairfax plant on April 22, 2002, plaintiff requested and received sick leave papers. Dr. Howard Houghton, plaintiff's psychiatrist, informed GM that plaintiff was suffering from depression and would need to be off of work until July 3, 2002. On June 11, 2002, plaintiff went to another psychiatrist, Dr. Fred Fayne, who submitted documentation to GM stating that plaintiff had "major depression, recurrent stress" and "prolonged grief reaction" and could not return to work until August 1, 2002. Dr. Fayne also opined that plaintiff's condition was not caused by the work at GM. On August 1, 2002, Dr. Fayne notified GM that plaintiff was not released to return to work for an additional ninety days. On October 25, 2002, Dr. Fayne extended the restriction, telling GM that plaintiff could not return to work for another ninety days. GM referred plaintiff to Dr. Fernando Egea, another psychiatrist, for a second opinion. Dr. Egea concurred with Dr. Fayne that plaintiff was not mentally capable of returning to work at that time. Dr. Fayne and Dr. Egea continued to recommend that plaintiff remain off work until July 3, 2003, when Dr. Fayne informed GM that plaintiff was "100% totally disabled from work" and would never be capable of returning to GM.
Pursuant to the collective bargaining agreement between GM and UAW, when an employee transfers from one plant to another and has GM corporate seniority greater than January 7, 1985, the employee will be given a plant seniority at the new plant of January 7, 1985. This provision of the agreement, which became effective in 1984, was collectively bargained for and applies to all transferring employees regardless of age, race, sex or disability. UAW Local 31's collective bargaining agreement allows employees with higher plant seniority dates to "bump" employees with lower plant seniority dates off their jobs, even if the less senior employee has ADAPT restrictions. Employees with less plant seniority cannot bump another employee from a job.
If a UAW member employed by GM feels she has been discriminated against due to race, age, sex, disability or other protected status, the member may file a grievance under paragraph 6(a) of the national collective bargaining agreement. Each grievance written under paragraph 6(a) is assigned to the local union's Civil Rights Committee for investigation, and the committee is requested to prepare a report which is submitted to the local shop chairman. Plaintiff never filed a charge of discrimination with UAW Local 31's Civil Rights Committee.
The record reflects that plaintiff does not allege...
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