Jenkins v. Plumbers & Pipefitters Union Local No. 614, & CS3, Inc.

• Decision Date: 06 September 2013
• Docket Number: No. 10–2929.,10–2929.
• Citation: 971 F.Supp.2d 737
• Parties: Clarence F. JENKINS, Jr., Plaintiff, v. PLUMBERS AND PIPEFITTERS UNION LOCAL NO. 614, and CS3, Inc., Defendants.
• Court: U.S. District Court — Western District of Tennessee

971 F.Supp.2d 737

Clarence F. JENKINS, Jr., Plaintiff,

v.PLUMBERS AND PIPEFITTERS UNION LOCAL NO. 614, and CS3, Inc., Defendants.

No. 10–2929.

United States District Court,

W.D. Tennessee,

Western Division.

Sept. 6, 2013.

Clarence F. Jenkins, Jr., Memphis, TN, pro se.

Michael R. Marshall, Evans Petree, PC, Timothy P. Taylor, Godwin Morris Laurenzi & Bloomfield, P.C., Memphis, TN, for Defendants.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SAMUEL H. MAYS, JR., District Judge.

Before the Court is Defendant Plumbers and Pipefitters Union Local No. 614's (the “Union”) October 25, 2012 Motion for Summary Judgment. (Mot. for Summ. J., ECF No. 33.) Pro se Plaintiff Clarence F. Jenkins, Jr. (“Jenkins”) filed a Response on January 2, 2013. (Resp., ECF No. 40.) On January 22, 2013, the Union replied. (Reply, ECF No. 49.) The Court referred the Union's Motion to United States Magistrate Judge Charmiane G. Claxton on March 27, 2013. (ECF No. 50.) On April 16, 2013, the Magistrate Judge entered a Report and Recommendation (the “Report”) recommending that the Union's Motion be granted. (Report, ECF No. 51.) Jenkins objected to the Magistrate Judge's Report on May 1, 2013. (Obj., ECF No. 55.) The Union responded to Jenkins' objection on May 17, 2013. (Resp. to Obj., ECF No. 56.)

For the following reasons, the Court OVERRULES Jenkins' objections and ADOPTS the Magistrate Judge's Report. The Union's Motion for Summary Judgment is GRANTED.

I. Background

On December 22, 2010, Jenkins filed a pro se Complaint against his employer, CS3, Inc. (“CS3”), and the Union, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.(“Title VII”). (Compl., ECF No. 1.) ¹ On November 21, 2011, Jenkins filed an Amended Complaint against CS3 and the Union. (Am. Compl., ECF No. 21.)

Jenkins alleges that he is an African–American male who is a “dues paying member” of the Union and who was “working his way through the apprenticeship program.” ( Id. ¶¶ 5, 10). He claims that he was dismissed because of his race and was replaced by an “inexperienced White apprentice” who was then promoted to “journeyman steam fitter/service tech.” ( Id. ¶ 6.) Jenkins alleges that the Union “continues to discriminate against him based on his race” by referring Caucasian members for positions that, based upon the “applicable laws, rules, and by-laws of Local No. 614 should be his employment.” ( Id. ¶ 9.) He claims that the Union has not contacted him in the previous eighteen months about job placement. ( Id.) Jenkins alleges that he filed a charge against the Union with the Equal Employment Opportunity Commission (“EEOC”) claiming retaliation and discrimination on the basis of race (the “Charge”). ( Id. ¶ 11.) ² He alleges that he filed the Charge on October 14, 2008, but the Charge is date-stamped as received on December 11, 2008. ( Id.; Charge, ECF No. 1) The Charge specifically alleges that two Caucasian employees, Charles Minck and Williard Strain, were given job placements instead of Jenkins. (Charge.) The Charge states that Strain was offered two different job assignments and that Jenkins has not been offered any referrals since October 2008. ( Id.) The Charge states that, when Strain declined an assignment, his name was not moved to the bottom of the assignment list. ( Id.) The Charge states that Minck was offered a job assignment where Plaintiff was “supposed to have been rehired.” ( Id.) The EEOC issued a Dismissal and Notice of Rights on or about September 26, 2010. (Am. Compl. ¶ 12.)

The Magistrate Judge found that the Union represents Apprentice and Journeymen employees in the plumbing and pipefitting industries, and that it uses a “referral system” or “hiring hall” method to assist members in finding employment. (Report 748–49.) Members who are not currently employed are eligible to add their names to the “Out of Work List” to obtain referrals (the “List”). ( Id. 749.) The List is maintained in chronological order by the date members sign up. ( Id.) When a contractor contacts the Union with a request for a worker without specific special skills or qualifications, the Union refers members in the order in which they signed the List. ( Id.) If a contractor requests particular skills or qualifications, the Union refers the first worker on the List with those skills or qualifications. ( Id.) Contractors may also request a specific member by name, and may reject any member referred by the Union. ( Id.)

The Magistrate Judge found that Jenkins had been placed through the hiring hall on a number of occasions between 2004 and 2010. ( Id. 749–50.) Jenkins received an early promotion to Journeyman status on January 12, 2009, which allowed him to work at a higher pay grade. ( Id.) At the time of the placements Jenkins complains of, he was a Fifth Year Apprentice. ( Id. 749–50.) Strain was referred for the contractor request to which Jenkinsobjects because Strain was the Fifth Year Apprentice who had been on the List the longest. He was not moved to the bottom of the List after declining the assignment, “but that had become ordinary practice at the Union for all members.” ( Id. (internal citations omitted.)) Minck, the Second Year Apprentice who had been on the List longest, was referred for the contractor request to which Jenkins objects because the contractor specified that its budget could only cover the pay grade of a First or Second Year Apprentice. ( Id. 749–50.)

The Magistrate Judge also found that the Union had provided statistics showing the percentage of referrals for African–American members in 2008, 2009, 2010, and 2011. ( Id. 750.) In 2008 African–Americans were 8% of membership and received 23% of referrals, in 2009 they were 10% of membership and received 17% of referrals, in 2010 they were 10% of membership and received 15% of referrals, and in 2011 they were 10% of membership and received 11% of referrals. ( Id.)

The Magistrate Judge's proposed conclusions of law are as follows: Jenkins has not alleged direct discrimination on the basis of race and there is no evidence in the record that race is a motivating factor in Union referrals. ( Id. 751–52.) Jenkins cannot state a prima facie case of discrimination based on circumstantial evidence because he has not established that there is a genuine issue of material fact about whether he suffered an adverse employment action. ( Id. 752–53.) The Union's failure to move Strain to the bottom of the List cannot constitute an adverse employment action because, even if it was improper, Jenkins was employed at the time Strain declined the Union's referral and was therefore not on the List. ( Id. 753.) Because Jenkins was employed at the time of the Union's alleged preferential treatment of Strain and Minck, he was not qualified for the positions he sought because he was not eligible to be referred. ( Id. 753–54.) There is no evidence in the record to support Jenkins' contention that he was treated differently than similarly situated non-minority members. ( Id.) The evidence supports a conclusion that the Union's hiring hall operated on set procedures that were applied equally to all members and referrals. ( Id.)

Jenkins objects to the Magistrate Judge's recommendation on three grounds: (1) it “disregards relevant and admissible data pertaining to the status of African–American Union members”; (2) it “dismisses as inconsequential the fact that plaintiff has not received a referral from defendant since June 2010 while using a series of steady referrals as dispositive evidence”; and (3) it is “clearly erroneous and contrary to law” because “evidence and all justifiable inferences based on facts must be viewed in a light most favorable to the non-moving party.” (Obj. 1.)

II. Jurisdiction

Jenkins brings suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The Court has federal question jurisdiction under 28 U.S.C. § 1331.

III. Standard of Review

A “district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b); see also28 U.S.C. § 636(b)(1)(C). After reviewing the evidence, the court is free to accept, reject, or modify the proposed findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court need not “ ‘review ... a [magistrate judge's] factual or legal conclusions [ ] under a de novo or any other standard, when neither party objects to those findings.’ ” Satkiewicz v. Michigan, No. 2:11–cv–14370, 2012 WL 3779177, at *1, 2012 U.S. Dist. LEXIS 124403, at *3 (E.D.Mich. Aug. 31, 2012) (quoting Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). The Supreme Court has “expressly concluded that a district court should adopt the findings and rulings of the magistrate judge to which no specific objection is filed.” United States v. Maness, No. 10–20348, 2012 WL 2577528, at *1, 2012 U.S. Dist. LEXIS 92238, at *2 (W.D.Tenn. July 3, 2012) (citing Arn, 474 U.S. at 151, 106 S.Ct. 466). Otherwise, a district court would be forced “to review every issue in every case, no matter how thorough the magistrate's analysis and even if both parties were satisfied with the magistrate's report .... [which] would be an inefficient use of judicial resources.” Id. (internal citations omitted); accord Javaherpour v. United States, 315 Fed.Appx. 505, 509 (6th Cir.2009).

IV. Analysis

Under Rule 56 of the Federal Rules of Civil Procedure, on motion of a party, the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party can meet this burden by pointing out to the court that the non-moving party, having had sufficient opportunity for discovery, has no evidence to support an essential element of his case. Fed.R.Civ.P. 56(c)(1); Asbury v. Teodosio, 412 Fed.Appx. 786, 791 (6th...