Wrobbel v. International Broth. of Elec. Workers

• Decision Date: 28 July 2009
• Docket Number: No. 07-CV-10110-DT.,07-CV-10110-DT.
• Citation: 638 F.Supp.2d 780
• Parties: Gail WROBBEL, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 17, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

638 F.Supp.2d 780

Gail WROBBEL, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 17, Defendant.

No. 07-CV-10110-DT.

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

July 28, 2009.

COPYRIGHT MATERIAL OMITTED

Deborah L. Gordon, Deborah L. Gordon Assoc., Bloomfield Hills, MI, for Plaintiff.

George H. Kruszewski, John R. Runyan, Jr., Sachs Waldman, Detroit, MI, for Defendant.

OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

This is a sex discrimination action brought by Plaintiff Gail Wrobbel pursuant to Title VII and the Michigan Elliott-Larsen Civil Rights Act against her Union, the International Brotherhood of Electrical Workers ("IBEW") Local 17. In her First Amended Complaint,¹ Plaintiff alleges that, in March 2004, the Union (1) refused to refer her for work with Asplundh Construction Corporation and (2) conspired with Asplundh to deny her employment because she is a female.

This matter is now before the Court on Defendant IBEW Local 17's Motion for Summary Judgment. Plaintiff has responded to Defendant's Motion and Defendant has replied. Having reviewed and considered the parties' briefs and supporting evidence, the Court has determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

Plaintiff Gail Wrobbel has worked in the electrical maintenance trade for approximately 12 years during which time she has been a member of IBEW Local 17. During the course of her career, Ms. Wrobbel worked for various contractors that performed overhead line construction and maintenance work for Detroit Edison.

All of the contractors providing overhead line construction services to Detroit Edison are signatories to a multi-employer collective bargaining agreement between the American Line Builders Chapter, NECA, and IBEW Local 17 (the "CBA"). The job classifications governed by the collective bargaining agreement include 1) journeyman linemen; 2) operators, material handlers, and pole helpers; and 3) groundmen and truck drivers.

THE COLLECTIVELY-BARGAINED WORK REFERRAL SYSTEM

The CBA provides a procedure for referral of applicants for employment pursuant to which Local 17 is the sole and exclusive source of referral of job applicants. [See CBA, § 3.02, Ex. A to Affidavit of Timothy Head.] However, the employer has the absolute right to reject any applicant for employment. Id. at § 3.03. Under the agreement, Local 17 is required to keep an "Out of Work List" (the "List") which lists the applicants within each job classification in chronological order of the dates they register their availability for employment. Id. at § 3.11. Seniority plays no part in the List. Separate lists are maintained for the different job classifications. Id. at §§ 3.05; 3.13.

The CBA, however, only requires that Local 17 refer the applicant for employment in the order of his/her place on the List; no manner of referral is specified. Typically, employees are given a referral slip by the Union to take to the prospective employer. However, Timothy Head, Local 17's Assistant Business Manager, testified in his deposition that a less formal procedure for referral is sometimes used. He testified that often the employer would simply call the Local 17 business agent, inform him of the number of applicants needed, and ask the business agent to go through the List and verbally refer each applicant in the order of his or her place on the List. [Head Dep., pp. 110-111.] According to Head, this practice was implemented because the Union members did not want to be inconvenienced and/or embarrassed by going to the Union Hall to pick up a referral slip and then driving to the contractors location, only to be rejected by the employer and "turned around" back to the Union Hall. Id. The use of both referral slips and telephonic referrals has been confirmed by a number of superintendent/managers of contractor/members of the American Line Builders who had a collective bargaining relationship with Local 17. These managers have testified that applicants are frequently referred via telephone conversations between the contractor's superintendent/manager and an Assistant Business Manager for Local 17. [See Affidavit of Dale A Cole, General Foreman and Superintendent of N.G. Gilbert Company, Defendant's Ex. F; Affidavit of Patrick J. Raftary, General Foreman of Harlan Electric, Defendant's Ex. G; Affidavit of David E. Shea, Superintendent of M.J. Electric, LLC, Defendant's Ex. H.]²

When pursuing a telephone referral, these managers would call Local 17 Assistant Business Manager Tim Head, or his predecessor, and request one or more applicants for a particular classification. They would then ask Mr. Head or his predecessor, "Who are you sending?" understood as "Who is the next applicant on the List?" After Mr. Head identified the first applicant in order of his or her place on the List, the manager would either indicate, "Send him (or her)" or "We don't want him," understood as the employer exercising his right of rejection under the CBA. Head or his predecessor would then identify the next applicant in order of his or her place on the List. Any applicant who is rejected, whether in person or over the telephone is returned to his or her place on the List. CBA § 3.13; Head Dep. p. 25.

PLAINTIFF'S WORK IN THE ELECTRICAL MAINTENANCE INDUSTRY

Plaintiff began her career in the electrical maintenance industry with Harlan Electric. From 1995 to 2004, Ms. Wrobbel worked at Harlan as a material handler a/k/a yard person. She was referred to Harlan in order of her place on the List.³ In March 2004, Asplundh Construction Company won the contract to perform overhead line construction and maintenance work for Edison that, until that time, had been held by Harlan. As a result, all of the employees of Harlan who had been performing work in connection with the Edison contract, including Plaintiff, were laid off on Friday, March 19, 2004. All of those employees, including those seeking to be re-hired in their previous positions now taken over by Asplundh, had to follow the referral procedure prescribed by the CBA for new work.

On the following Monday, March 22, 2004, in accordance with the CBA referral procedure, Wrobbel went to the offices of Local 17 and signed the List. Local 17's Assistant Business Manager Timothy Head testified that he subsequently referred Plaintiff telephonically to Asplundh for rehire in her former material handler position but that Asplundh's manager, William Catalfio, verbally rejected her. [See Head Dep., pp. 46-59; Catalfio Dep., pp. 154-161.]

Plaintiff maintains, however, that all male applicants hired by Asplundh were referred by Local 17 by giving the worker a referral slip and sending the worker with the slip to the contractor. In support of her contention, she points out that Asplundh represented to the EEOC that it did not hire her because "other applicants either (1) had previously appeared with their `referral slips,' and had already been selected; or (2) had more superior capabilities for performing the job functions." [See Asplundh's Response to Charge of Discrimination, Plaintiff's Ex. L (emphasis added).]⁴ Plaintiff's position is that Local 17 did not give her a referral slip because she is a woman.⁵

Plaintiff also claims that Local 17 conspired with Asplundh to deny her employment. Her claim is that the Union knew that Asplundh and Mr. Catalfio did not like female workers and not only stood passively by and took no affirmative action to prevent Catalfio from rejecting her and all female referrals despite their positions on the Out of Work List but also actively "caused or attempted to cause" Asplundh to discriminate in its hiring by not giving her a referral slip. Therefore, she maintains that Local 17 can be held liable for the employer (Asplundh)'s discriminatory animus.

III. DISCUSSION

A. STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper "`if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed. R.Civ.P. 56(c).

Three 1986 Supreme Court cases—Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)—ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion.⁶ According to the Celotex Court,

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof.

Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

After reviewing the above trilogy, the Sixth Circuit established a series of principles to be applied to motions for summary judgment. They are summarized as follows:

* The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.

* The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative...