Millner v. Dte Energy Co.

• Decision Date: 30 September 2003
• Docket Number: No. 02-CV-71658-DT.,02-CV-71658-DT.
• Citation: 285 F.Supp.2d 950
• Parties: Kurt MILLNER, Plaintiff, v. DTE ENERGY COMPANY, Michigan Consolidated Gas Company, Service Employees International Union Gas Workers Local 80, and Sol Mims, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

285 F.Supp.2d 950

Kurt MILLNER, Plaintiff, v. DTE ENERGY COMPANY, Michigan Consolidated Gas Company, Service Employees International Union Gas Workers Local 80, and Sol Mims, Defendants.

No. 02-CV-71658-DT.

United States District Court, E.D. Michigan, Southern Division.

September 30, 2003.

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Scott E. Combs, Esq., Novi, MI, for plaintiff.

Alec J. McLeod, Esq., William B. Balke, Esq., Lawrence R. Webb, Esq., Andrew A. Nickelhoff, Esq., Detroit, MI, for defendant.

OPINION AND ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

ROSEN, District Judge.

I. INTRODUCTION

This hybrid Section 301/Elliott-Larsen discrimination action is presently before the Court on two motions for summary judgment separately filed by (1) Defendants DTE Energy Company ("DTE"), Michigan Consolidated Gas Company ("MichCon"), and Plaintiff's supervisor, Sol Mims, and (2) Defendant Service Workers International Union Gas Workers Local 80 ("Local 80" or the "Union"). Plaintiff Kurt Millner has responded to Defendants' Motions to which Response Defendants have replied. The Court also ordered supplemental briefing following the hearing held on this matter on June 19, 2003 and the parties filed Supplemental Briefs in accordance therewith. Having reviewed and considered the parties' briefs, evidence, and the Court's entire file of this matter, and having heard the oral arguments of counsel, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

Plaintiff Kurt Millner is a former MichCon Field Service Technician.¹ Millner was hired by MichCon on May 29, 1992. After three years as an Apprentice, Plaintiff became a Field Service Technician ("FST"), a position he held until his employment was terminated on April 24, 2001. As an FST, Plaintiff was responsible for field service duties, which primarily involved making service calls to MichCon customers, repairing heating and cooling appliances, and disconnecting the gas supply to appliances that needed replacement.² During the last three years of his employment as a MichCon FST, Plaintiff, who is Hispanic, was based at the Allen Road station where his supervisor was Defendant Solomon Mims, an African-American.

Upon being hired by MichCon, Plaintiff became a member of SEIU Local 80 and was subject to the collective bargaining agreement ("CBA") entered into by MichCon and Local 80, as well as MichCon's work rules and policies, referred to as "Company Employment Standards" ("CES"), which were incorporated into the CBA. The CBA provided for just cause termination and contained a grievance process. The CES utilized a progressive disciplinary policy and a point system to assess discipline. "Minor Work Rule" violations did not result in the assessment of any points. "Major Work Rule" violations, on the other hand, resulted in points being assessed for each violation. Pursuant to the CES, an employee was subject to discharge upon accumulation of a total of 12 points, in the event of consecutive 6-point or four 3-point violations, or a total of 15 points (including non-consecutive 6-point violations). See MichCon's Ex. 3, pp. 3-4. The CES further provided that an employee could remove 1 point from his record by not incurring another infraction within one year of the last infraction. Id. p. 9. Plaintiff testified that he was aware of and understood MichCon's point system. See Plaintiff's Dep., Defendant's Ex. 34, pp. 155-57.

PLAINTIFF'S DISCIPLINARY RECORD

During the last three years of his employment, Plaintiff was disciplined by his supervisor, Solomon Mims five times, twice for Minor Work Rule violations and three times for Major Work Rule violations. On March 31, 1998, Mims gave Plaintiff a verbal warning for falsifying time. However, no disciplinary points were assessed. On December 17, 1998 Plaintiff was counseled by Mims for abuse of time, a Major Work Rule violation, and Plaintiff was assessed 3 points.³ Plaintiff admitted that he had been running personal errands on MichCon time and agreed with the counseling and the assessment of 3 points.

On October 29, 1999, Plaintiff again was called on the carpet for a Major violation of abuse of time. Upon review and approval of Bruce Gustavson, the Director of Operations at Allen Road, Plaintiff was assessed another 3 points and was docked 2 hours of pay. The face of this discipline stated, "You now have a total of 6 points." (Emphasis in original). Plaintiff claims that he completed a Grievance Form regarding the October 29, 1999 discipline and gave it to his Union Steward, Brian Bersok. However, Plaintiff admitted in his deposition that he does not have a copy of this Grievance Form and MichCon never received a Grievance Form for Plaintiff with a date of occurrence of October 29, 1999.

A week later, November 6, 1999, Plaintiff was given a verbal warning by Mims for the Minor Work Rule violation of failing to complete his assigned overtime workload. Apparently, because this was a Minor violation, no disciplinary points were assessed. However, on November 10, 1999, Plaintiff submitted Grievance Form number 99-F-15 to Brian Ketterer, another Allen Road supervisor. On this Grievance Form, Plaintiff wrote in the space provided for "Statement of Claimed Grievance," "UNFAIR DISCIPLINE MAKE GRIEVANT WHOLE," stating "November 6, 1999" as the date of occurrence grieved. See Union Ex. G. Notwithstanding Millner's stated date of occurrence as November 6, the Union concluded that the grievance pertained to the October 29th 3-point, 2-hour assessment, and the number was corrected to 99-F-19.⁴

On July 27, 2000, Mims issued Millner another 3-point assessment for abuse of time. The face of the discipline stated, "You now have a total of 9 points." See Union Ex. H. Instead of grieving this discipline, this matter was resolved by way of an agreement entered into between Millner, Mims and, in Brian Bersok's absence, Gregory Thompson, another Union steward at the Allen Road station, on November 1, 2000. The agreement provided that this specific discipline would be subject to an accelerated point reduction, i.e., rather than being subject to the standard reduction of one point reduction when the employee has no further incidents within the year following the most recent Major Work Rule violation, the agreement was that all 3 points from this discipline would be removed if Millner adhered to the Employment Standards and other work rules applicable to FSTs.

THE UNION'S WITHDRAWAL OF GRIEVANCE 99-F-19

According to Brian Bersok, Plaintiff's Union steward, in conjunction with the review of some 218 pending grievances (from all departments at all MichCon stations, including some 25 grievances in the Field Service Department at Allen Road), he and Rich Harkins, Local 80's Executive Vice-President, met with Robert Crudder of MichCon. When they got to Grievance 99-F-19, Bersok realized that the parties had forgotten about this grievance. It was agreed that he would discuss the grievance with Mims and Millner to attempt to resolve it.

When he raised it with Mims, Mims told him that Millner could have either that grievance, 99-F-19, or the November 1, 2000 3-point reduction agreement concerning the July 27, 2000 discipline, but not both. Mims told Bersok that he did not know about any grievance from the October 28, 1999 disciplinary action when he entered into the November 1, 2000 agreement. Bersok, in turn, explained the status of the matter to Millner and told him that he had a choice between the two. He told Bersok that he wanted to think about it and would let him know his answer the next day. The next day, Millner told Bersok that he chose to keep the 3-point one year reduction agreement and withdraw 99-F-19 regarding the October 28, 1999 3-point, 2-hour grievance. On the basis of Millner's statement, Bersok told Harkins that Millner had agreed to withdraw 99-F-19.

Relying upon Bersok's representation of Millner's approval, Harkins withdrew the grievance when he and Bersok met again with Crudder on March 30, 2001. He wrote on the grievance, "the union agrees to withdraw without prejudice to its position," (meaning that the withdrawal of the grievance would not constitute precedent for other situations.) Bersok, likewise, noted on page 10 of the Company's "Local 80 Open Grievances" list, "3-30-01 Drop without Prejudice to Position" and "settled 3-30-01."

After the grievance was withdrawn, Millner called Bersok and said that he had changed his mind, that John Paul, a Local 80 executive board member from Allen Road,⁵ had told him that he could keep both his 99-F-19 grievance and the agreement relating to the July 2000 discipline. Bersok told Millner that the grievance had already been withdrawn and that if he, or Paul, wanted to do anything on their own, apart from the grievance process, that was up to them.⁶

PLAINTIFF'S DISCHARGE

A Major Work Rule set forth in the CES is the No Solicitation policy, which provides as follows:

A. Performing any work or service for personal benefit during working hours will result in twelve (12) points — discharge.

B. During working hours, no employee shall canvas, solicit or make arrangements to do work of any nature except work to be performed as a Company Representative.

• No employee shall furnish prospects for the sale of any merchandise to outside firms.

• No employee shall recommend a specific dealer to a customer whenever service from more than one dealer is available.

• No employee shall at any time leave literature, cards, stickers or make any other type of verbal or written solicitation on customer's premises except as authorized by the Company.

Violations of work rules in B above will subject an employee to a minimum of three (3) points and the Company may assess more points up to and including discharge as circumstances warrant.

[Defendant's Ex. 3, p. 23 (emphasis added).]

On March 22, 2001,...