Elliott v. Tulsa Cement, LLC
| Citation | 357 F.Supp.3d 1141 |
| Decision Date | 11 January 2019 |
| Docket Number | Case No. 18-CV-00164-GKF-JFJ |
| Parties | Shawn ELLIOTT and Jeremiah Wittner, Plaintiffs, v. TULSA CEMENT, LLC; Kristopher Todd Brown; Jake Medrano; Tommy Keller; Eagle Materials, Inc.; and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
Shawn Elliott, Broken Arrow, OK, pro se.
Jeremiah Wittner, Tulsa, OK, pro se.
Deborah Ann Reed, Jennifer Woods Voss, Reed Legal PLLC, Stephen P. Gray, Stephen P. Gray & Assoc., Broken Arrow, OK, for Plaintiffs.
J. Patrick Cremin, Johnathan Louis Rogers, Hall Estill Hardwick Gable Golden & Nelson, Steven R. Hickman, Frasier Frasier & Hickman, Tulsa, OK, Monica Rodriguez, Seyfarth Shaw LLP, Los Angeles, CA, Nick Geannacopulos, Seyfarth Shaw LLP, San Francisco, CA, Brandon E. Wood, Katherine T. Pearlstone, Michael James Stapp, Blake & Uhlig PA, Kansas City, KS, for Defendants.
Before the court are the following motions: (1) the Motion to Dismiss [Doc. 20] of defendants Tulsa Cement LLC, Eagle Materials, Inc., and Jake Medrano; (2) the Motion to Dismiss [Doc. 23] of defendants Kristopher Todd Brown and Tommy Keller; and (3) the Motion to Remand [Doc. 37] of plaintiffs Shawn Elliott and Jeremiah Wittner.
Plaintiffs worked as hourly maintenance employees for defendant Tulsa Cement, LLC from 2013 until their termination on August 14, 2017. [Doc. 2-1, p. 3, ¶¶ 5-6 and 51]. Plaintiffs joined Local D421 of the Cement, Lime, Gypsum and Allied Workers Division of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (hereinafter, "Union"). [Id. ¶¶ 5-6], and were subject to a collective bargaining agreement (CBA) between the Union and Tulsa Cement. [Id. ¶ 7]. Defendant Eagle Materials, Inc. is the parent corporation of Tulsa Cement LLC. [I d. ¶ 5].
Plaintiffs allege the following: Throughout 2014, manager Kris Brown and other managers repeatedly harassed, threatened, and intimidated plaintiffs. [Id. ¶ 8]. During one incident, Brown demanded Elliott perform mathematical calculations that were outside the scope of his employment and, when Elliott refused, Brown chased Elliott around a work bench while yelling threats. [Id. ]. Elliott reported the incident to several people in management positions, including Keller. [Id. ¶ 9].
Following continued harassment and intimidation, in February 2015, Wittner sent an anonymous email to Eagle Materials' corporate counsel and Elliott contacted corporate counsel via telephone. [Id. p.4, ¶ 10]. Although the corporate counsel indicated an investigation was "ongoing" and that he would contact Elliott, no further communication occurred. [Id. ]. On August 15, 2015, Elliott filed a grievance against Brown citing continued harassment. [Id. p. 4, ¶ 11]. On December 1, 2015, a Union representative, Clay Herford, visited the Local Union and told the Local Union committee he would get Local Union jobs back, but that he would not arbitrate the grievances against Tulsa Cement. [Id. ¶ 12].
In September 2016, Elliott became aware of a recorded conversation between two former employees of Tulsa Cement—one male and one female. [Id. ¶ 17]. Because the former female employee was in a romantic relationship with manager Medrano, Elliott played the recording for Medrano, who asked Elliott to delete the recording. [Id. ].
In early April 2017, Elliott filed a grievance on behalf of himself and other employees alleging Tulsa Cement only paid its employees for 11 ½ hours during 12 hour shifts, instead of the full 12 hours required by the CBA. [Id. p. 6, ¶ 21]. On April 7, 2017, Elliott and Wittner, with other Tulsa Cement employees, did not clock out for lunch based on past practice and the CBA's requirement that shift workers be compensated for a thirty-minute lunch. However, upon arrival back at work, Medrano informed Elliott of a new policy requiring all employees to clock out at lunch when leaving the property. [Id. pp. 6-7, ¶ 22]. Medrano later informed Elliott that he would not be paid for break time when he left Tulsa Cement property, but that hours would be added back to Elliott's paycheck to compensate for the unpaid lunch time. [Id. p. 7, ¶ 23]. Medrano then advised Elliott to stop clocking out for lunch. [Id. ]. However, on May 31, 2017, Medrano informed Elliott that he must resume clocking out for lunch, and assured him that he would be paid for the time and not be disciplined. [Id. ¶ 25]. Nevertheless, on June 8, 2017, Medrano issued Elliott a second written warning for policy violations related to not clocking out for lunch. Elliott refused to sign the warning, partially on the basis that he was unaware of the first-step warning against him which the form indicated occurred nearly two years before on August 11, 2015. [Id. p. 8, ¶ 27]. Elliott raised the issue with manager Alan Gee and Ed Rankey, requested a copy of the policy regarding clocking out for lunch, and asked to be moved to a different supervisor. [Id. pp. 8-9 and 11, ¶¶ 29, 31, and 42].
On May 15, 2017, Tulsa Cement created a fifth shift, but did not place the extra jobs for bid as required by the CBA. [Id. p. 7, ¶ 24]. Additionally, on June 1, 2017, Tulsa Cement stopped paying double time after twelve hours worked in violation of the CBA. [Id. ¶ 26]. On or around June 22, 2017, Elliott filed three grievances "to address various issues that were affecting the work environment including overtime equalization, the company's failure to call Local Union members to cover call outs, and out of classification work." [Id. p. 9, ¶ 32]. On July 13, 2017, Medrano read aloud a new policy on clocking out when leaving work to have lunch, to which Elliott objected as violating the CBA. [Id. p. 11, ¶ 43].
In June 2017, supervisor Mikels issued a verbal warning regarding mobile phone usage at work to Wittner in front of several other employees. [Id. p. 8, ¶ 28]. When questioned regarding company policies that required the use of mobile phones, Mikels stated that Tulsa Cement management was looking for reasons to get rid of several employees, including plaintiffs, and were forcing him to discipline the employees. [Id. ]. Other incidents include: (1) a February 2017 incident in which Wittner requested his shift be rescheduled due to lack of childcare, which was approved, but throughout the weekend Keller complained about Wittner to other employees and later accosted Wittner in the breakroom and informed Wittner that he would receive a warning letter and have points assessed against him [Id. pp. 5-6, ¶ 18]; (2) on February 2, 2017, Brown screamed "where's the motherf****r," referring to Elliott [Id. p.6, ¶ 19]; and (3) on June 22, 2017, Keller accosted and cursed both plaintiffs for arriving to work too early and called several employees "n*****s" or "prairie n*****s" [Id. p. 9, ¶ 33]. With regard to the June 22, 2017 incident, the Local Union demanded a written record of the meeting, and received a letter "downplaying the incident and failing to list any disciplinary actions taken against Keller." [Id. p. 10, ¶ 35].
In July 2017, Brown told Elliott to light a smoke bomb and throw it at a table where maintenance employee Jason Nicholson was sitting. Elliott lit the smoke bomb and threw it in a metal rack instead. [Id. pp. 10-11, ¶ 39].
On July 9, 2017, another Tulsa Cement employee asked Elliott to find and play the recording of the conversation involving a female former Tulsa Cement employee that Medrano requested he delete. [Id. p. 10, ¶ 37]. Elliott recovered the recording, and Wittner played it over an external speaker because someone complained that they could not hear the recording. [Id. ]. Keller asked Elliott to play the recording for he and Brown, and told graphic stories about the former female employee. [Id.¶ 38]. On July 27, 2017, Tulsa Cement suspended Elliott and Wittner without pay during an investigation of a sexual harassment allegations made by Medrano and his fiancé, the former female employee on the recording. [Id. p. 12, ¶¶ 46-47].
On August 14, 2017, Tulsa Cement terminated plaintiffs' employment. [Id. p. 12, ¶ 51]. On August 29, 2017, Local Union leaders filed grievances nos. 2917 and 3017 protesting the termination of Wittner and Elliott, respectively. [Id. p. 13, ¶ 54]. During a visit by Herford in November 2017, Herford did not appear for a meeting arranged with Local Union leaders and Elliott. [Id. p. 4, ¶ 13]. During that same visit, Herford attended a third-step grievance meeting wherein he informed the Local Union president that he would attempt to get half back pay and Local Union member jobs reinstated. [Id. p. 4, ¶ 14]. However, Local Union members were not privy to meetings between Herford and Tulsa Cement executives and were not told the result of the meetings. [Id. p. 5, ¶ 15]. Herford continued to refuse to process grievances or take grievances to arbitration. [Id. ]. Herford traded plaintiffs' grievances for Union jobs. [Doc. 2-2, pp. 2-3, ¶¶ 97 and 99]. In early December 2017, local union leaders informed plaintiffs of their belief that the Union would not pursue grievance nos. 2917 and 3017. [Doc. 2-1, p. 13, ¶ 63]. "After losing all faith in the grievance process," plaintiffs requested to drop grievance nos. 2917 and 3017, and the grievances were dropped on December 7, 2017. [Id. p. 14, ¶¶ 64-65].
On July 31, 2017, Elliott filed complaint no. 14-CA-203404 with the National Labor Relations Board alleging unilateral changes to the CBA, wrongful discharge, wrongful discipline, and coercive statements. [Id. p. 12, ¶ 48]. On August 8, 2017, Elliott filed complaint no. 14-CA-203909 with the NLRB alleging unilateral changes to the CBA. [Id. ¶ 50]. On September 28, 2017, Elliott filed complaint no. 14-CA-207018 with the NLRB alleging wrongful discharge. [Id. ¶ p. 13, 58]. On October 3, 2017, Elliott filed complaint no....
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