Kassab v. Aetna Industries, Inc.

54 F. App'x 819
Court of Appeals for the Sixth Circuit·Decided December 20, 2002·No. No. 01-1452·Published·Cited by 4 cases

Opinion

PER CURIAM.

Plaintiff Lobin Kassab sued his former employer, Aetna Industries, Inc. (“Aetna”), his union local, United Automobile, Aerospace and Agricultural Implement Workers of America. Local 155 (“Local”), and his union international, United Automobile Workers (“International”), claiming national origin discrimination, in violation of 42 U.S.C. §§ 1981 and 2000e. breach of employment contract and breach of duty of fair representation. The district court dismissed the discrimination claims for lack of a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”) and construed the remaining claims as a hybrid § 301/duty-of-represen-tation claim. The district court then dismissed the duty of fair representation claim for Kassab’s failure to exhaust internal union appeals and for lack of substantive evidence to support the claim. Although long-standing Supreme Court and Sixth Circuit precedent dictate that dismissal of the fair representation claim unambiguously prevented relief on the claim against Aetna, Kassab’s attorney, Frank G. Becker, filed a motion to preserve the claim against Aetna alone. The district court denied the motion, dismissed the claim against Aetna and imposed Fed. R.Civ.P. 11 sanctions in favor of Aetna. Kassab now appeals the dismissals of his hybrid § 301 claim against both Aetna and the Local, as well as the imposition of sanctions. We affirm the dismissal of Kassab’s claims, but remand for a fuller explanation of the proper amount of the Rule 11 sanctions.

[821] I

Kassab was hired by Aetna in 1987 and, under the Collective Bargaining Agreement (“CBA”) in effect at the time, automatically joined the Local. During the following twelve years, Kassab worked in different blue-collar positions to the satisfaction of both Kassab and Aetna. On May 28, 1999, Kassab requested permission from his substitute supervisor to leave two hours early in order to take his nephew, who had broken his arm, to the hospital. As the plant was short-handed at the time, the substitute supervisor requested that Kassab return to the plant after bringing the nephew to the hospital and that he provide medical documentation of the treatment. At this point, Kassab became visibly upset and pointed out his seniority and perfect attendance record. The temporary supervisor telephoned the regular supervisor and asked his advice on how to handle the situation. The regular supervisor recommended allowing Kassab to leave unconditionally, but would later testify that he “considered [Kassabj’s wild and erratic behavior this time to be so totally out of his character that I suspected there was a possibility of substance abuse on his part.” Kassab then left the plant.

On June 1, 1999, when Kassab returned to the plant after a long weekend, the plant’s human resources supervisor requested that Kassab take a drug screening test based on the foregoing events.1 When informed of the drug test, Kassab asserted his right to the presence of a union representative under the CBA.2 As there were no current union representatives available at the plant, the human resources supervisor instead called Donald Laing, a former long-time union representative. Laing explained to Kassab that refusing to take the drug test would probably result in termination. However, Kassab objected to being represented by Laing and asked why a drug test was required of him. When no answer was forthcoming, Kassab refused to take the test. Under Aetna’s rules and regulations, refusal to follow instructions of a supervisor is an offense justifying immediate discharge and Kassab was terminated.

The following day, Kassab and Laing contacted a Local representative in order to file a written grievance. In the grievance, Kassab objected to his suspension on the grounds that it was based on the fact that he had refused to perform a function outside his job classification earlier on May 28. Under the CBA, such a grievance was required to be signed by the employee, but the union never requested that Kassab [822] sign his grievance. Instead, the Local submitted it to Aetna unsigned on June 2 or 3, 1999. Nevertheless, Aetna accepted the unsigned grievance and considered it on the merits. Aetna was required to respond to the grievance within three days under the CBA, but in this case responded with a denial only on June 16, thirteen or fourteen days later.3 Under the CBA, the Local had seven days to appeal the denial of the grievance, but did not do so. Instead, the president of the Local appealed personally to Aetna’s Vice President of Human Resources to reinstate Kassab, but was refused. On July 1, fifteen days after the denial of the grievance, the time to request arbitration of the grievance expired. On August 5, the Local concluded that it could not win this case in arbitration and withdrew it from the grievance procedure. During this period, Kassab claims that he was not informed of the progress of the grievance by the Local. On August 25, the president of the Local informed Kassab by letter that his grievance could not prevail and had been withdrawn. The letter did not inform Kassab of his right to appeal the Local’s decision within the union. However, Kassab subscribed to and read the UAW’s magazine “Solidarity,” which contained frequent articles on the internal UAW appeals procedure. In any case, Kassab did not make any attempt at an internal UAW appeal.

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Kassab v. Aetna Industries, Inc., 54 F. App'x 819 (6th Cir. 2002).

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