Herrera v. International Broth., Local 68, CIV.A.01-WY-2375-CB.

• Decision Date: 15 October 2002
• Docket Number: No. CIV.A.01-WY-2375-CB.,CIV.A.01-WY-2375-CB.
• Citation: 228 F.Supp.2d 1233
• Parties: Connie HERRERA, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL NO. 68, Denver Joint Electrical Apprentice and Training Committee, Dynalectric, Inc. a Colorado Corporation, and Tapp Electric, Inc. a Colorado Corporation, Defendants.
• Court: U.S. District Court — District of Colorado

228 F.Supp.2d 1233

Connie HERRERA, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL NO. 68, Denver Joint Electrical Apprentice and Training Committee, Dynalectric, Inc. a Colorado Corporation, and Tapp Electric, Inc. a Colorado Corporation, Defendants.

No. CIV.A.01-WY-2375-CB.

United States District Court, D. Colorado.

October 15, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen John Jouard, Dwyer, Huddleson & Ray, P.C., Fort Collins, CO, David H. Johnson, Moore, Smith & Williams, P.C., Fort Collins, CO, for Plaintiff.

Thomas B. Buescher, Electrical Workers, Local Union 68, Brauer, Buescher, Goldhammer & Kelman, PC, Denver, CO, Christopher K. Miller, Apprentice and Training Committee, Julie C. Tolleson, Kennedy & Christopher, P.C., Denver, CO, for Denver Joint Electrical Apprentice and Training Committee.

Gerald S. Hartman, Alisa Helene Reff, Swidler, Berlin, Shereff, Washington, DC, Jay S. Horowitz, Horowitz & Wake, Denver, CO, for Dynalectric, Inc.

TAPP ELECTRIC, INC., a, Mark Edwin Adams, Harden, Hass, Haag & Hallberg, PC, Fort Collins, CO, for Tapp Electric, Inc.

ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

BRIMMER, District Judge.

This case arises out of the Plaintiff's tribulations while seeking to become a journeyman electrician. The matter is currently before the Court on: (1) Defendant International Brotherhood of Electrical Workers, Local No. 68's, ("IBEW") Motion for Summary Judgment; (2) Defendant Denver Joint Electrical Apprenticeship and Training Committee's ("DJEATC") Motion for Summary Judgment; and (3) DJEATC's Motion for Summary Judgment Regarding Plaintiff's Demand for Back and Front Pay. Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

At all relevant times, Plaintiff Connie Herrera was a resident of Colorado. In May or June 1998, Plaintiff was admitted into the DJEATC apprentice program and remained in the program until April of 2000. Plaintiff was a member of the IBEW from February 1, 1999 until January 2, 2001.

Defendant IBEW is a labor organization, as that term is defined under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Colorado Anti-discrimination Act. IBEW conducts business throughout Colorado. Defendant DJEATC is a nonprofit Colorado corporation providing labor training for electrical apprentices and workers in Colorado.

This Court exercises jurisdiction pursuant to 28 U.S.C. § 1332 and 42 U.S.C. § 2000e-5(f)(3). Venue is proper in this Court pursuant to 42 U.S.C. § 2000e-5(f)(3).

Background

Plaintiff, Connie Herrera (formerly Connie Poff), alleges that during the course of her electrical apprenticeship with Defendant DJEATC, she was subjected to sexually harassing and discriminatory treatment both in the DJEATC classroom and during on-the-job training while working for Dynalectric, Inc. ("Dynalectric") and Tapp Electric. Plaintiff contends that several of the individuals who harassed her were members of Defendant IBEW.

In March 1998, Plaintiff was hired as an unindentured electrical apprentice for Dynalectric. Plaintiff's first job with Dynalectric was at Colorado State University. On April 20, 1998, Plaintiff was transferred to a Dynalectric job at the National Wildlife Research Center in Fort Collins, Colorado, where she worked until December 2, 1998, when she was transferred to a site at the Coors Brewery. Plaintiff continued to work for Dynalectric until November 19, 1999.

In May or June of 1998, the Plaintiff was accepted into an apprentice training program through the Defendant DJEATC and in February 1999 Plaintiff became a member of the Defendant IBEW. Plaintiff claims that while she was employed by Dynalectric at the National Wildlife job she was discriminated against on the basis of sex and subjected to a hostile work environment in the form of degrading and sexually explicit comments (from Chris Sirbin, Scott Butow, and Gary Cravens) and was denied the opportunity for meaningful work. Plaintiff maintains that she complained to her job supervisor and IBEW stewards; however, no disciplinary action was taken.¹

In September 1998, Plaintiff began her classroom instruction in the four year electrical apprentice program with Defendant DJEATC. During her three curriculum years of classroom instruction in the apprentice program with Defendant DJEATC, Plaintiff claims she was subjected to sexually harassing behavior (sexually explicit gestures and statements) by her fellow classmates. Plaintiff maintains that her instructors at DJEATC witnessed this behavior and that she also informed her instructors and the administrators at DJEATC of this behavior. Plaintiff also complained to these instructors and administrators about the harassment at Dynalectric. Plaintiff contends that the DJEATC never took any investigative or disciplinary action.

Through DJEATC, Plaintiff was placed on a training assignment with Tapp Electric, where she worked from November 1999 until April 2000. Plaintiff alleges that during her tenure with Tapp Electric she was subjected to sexual harassment and discrimination by male employees at Tapp Electric who were also IBEW members (Aaron Thompson and Tim Moser). In sum, Plaintiff contends that she complained to her supervisors about the inappropriate behavior and comments, but no action was taken in response to her complaints. Plaintiff contends that during her employment with Dynalectric and Tapp Electric, and during the course of her apprenticeship schooling at DJEATC, the sexual harassment was committed by IBEW members. As a result of the ongoing harassment, Plaintiff asserts that she was forced to quit the four year program on April 24, 2002.

Lastly, Plaintiff alleges that Defendant IBEW Union and the Rocky Mountain Chapter of National Electrical Contractors Association entered into a collective bargaining agreement, which established the Defendant DJEATC and all instructors at the DJEATC were IBEW members. Plaintiff seeks relief against Defendant DJEATC and Defendant IBEW for unlawful discrimination under Title VII and for Breach of Equal Opportunity and Sexual Harassment Policies (contract).

Legal Standard

Summary judgment is proper when there is no genuine issue of material fact to be resolved at trial. Fed.R.Civ.P. 56(c); Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993). Thus, a district court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Nelson v. Geringer, 295 F.3d 1082, 1086 (10th Cir.2002). "An issue of material fact is genuine where a reasonable jury could return a verdict for the party opposing summary judgment." Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir.1997).

In applying these standards, the district court will view the evidence in the light most favorable to the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir.1996). The movant bears the initial burden of demonstrating the absence of evidence to support the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the non-moving party bears burden of proof at trial, the burden then shifts to it to demonstrate the existence of an essential element of its case. Id. To carry this burden, the non-moving party must go beyond the pleadings and designate specific facts to show there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ford v. West, 222 F.3d 767, 774 (10th Cir.2000). The mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient to create a "genuine" issue of disputed fact. Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997).

Finally, "[t]o survive summary judgment under Title VII, the record must support an inference of a [sexually] hostile work environment and a basis for employer liability." Ford v. West, 222 F.3d 767, 775 (10th Cir.2000); see also Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1228 (10th Cir.2000).

Analysis

I. Defendant IBEW's Motion for Summary Judgment.

Defendant IBEW makes three arguments in support of its motion for summary judgment: (1) Plaintiff fails to state a claim for relief against it under Title VII; (2) Plaintiff's Breach of Policy Claim fails as a matter of law because only the IBEW Constitution could impose any obligations upon IBEW and under the Union Constitution, Plaintiff failed to exhaust her internal union remedies thereby precluding her claim; and (3) Plaintiff's claims are time barred.

A. Plaintiff's Claims for Relief Pursuant to Title VII.

Defendant IBEW argues that it cannot be held liable for the actions of Defendant DJEATC because they are separate entities and neither is the agent of the other. Further, IBEW contends that it cannot be held liable for sexual harassment committed by its members unless it acquiesces in that harassment. In turn, IBEW asserts it could not have acquiesced in its members' alleged sexual harassment of Plaintiff because it did not have knowledge of such conduct. Plaintiff responds that IBEW and its agent, DJEATC, are liable under Title VII; the latter for acquiescing in the former's harassment of Plaintiff, which is evidenced by its knowledge of the harassment and failure to take corrective action.

In the Tenth Circuit, "labor organizations have an affirmative duty to insure compliance with Title VII." Romero v. Union Pacific R.R., 615 F.2d 1303, 1311 (10th Cir.1980). Title VII provides that it is an unlawful employment practice for a labor organization to discriminate against any individual on the basis of, among other things, sex....