Leo LaPOINTE, Plaintiff-Appellant, v. UNITED AUTOWORKERS LOCAL 600, and Doug Thompson, Defendants-Appellees

8 F.3d 376, 1993 WL 431494

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 9, 1993
• Docket: 92-1280
• Status: Published

Opinions

CONTIE, Senior Circuit Judge.

Plaintiff-appellant Leo LaPointe appeals the summary judgment dismissal of his Age Discrimination in Employment Act claim. We reverse and remand for the following reasons.

I.

Plaintiff-appellant Leo LaPointe (“La-Pointe”) was employed by the Ford Motor Company (“Ford”) in its Parts Depot from 1967 until his retirement on January 1, 1990. While employed by Ford, LaPointe was a member of defendant-appellee United Autoworkers Local 600 (“Local 600”), an amalgamated union whose membership works for several different employers. Consequently, Local 600 is divided into “bargaining units,” each representing more than 600 employees governed by elected officers including a chairman, a president, and a vice president.

Each bargaining unit president has the authority to recommend individuals to fill union positions created by the collective bargaining agreement. The recommendation is forwarded to the Local Union’s president, then to the regional director of the International Union, then to an International Union vice president who, alone, has the authority to appoint individuals to, or remove individuals from, these positions. The responsibilities of these appointed union positions are governed by the terms of the collective bargaining agreements.

Defendant-appellee Doug Thompson (“Thompson”) served as the bargaining unit president for the Parts Depot from 1981 to 1990. In 1988, Thompson recommended that 49-year-old LaPointe be named the bargaining unit’s Health and Safety Representative. The International Union accepted Thompson’s recommendation and formally appointed LaPointe to the Health and Safety Representative position in February, 1988. La-Pointe continued to be employed by Ford during his tenure as the bargaining unit’s Health and Safety Representative.

LaPointe contends that soon after his union appointment he became the target of Thompson’s ridicule and harassment. On November 29, 1989, LaPointe executed an application for retirement benefits (effective January 1, 1990) pursuant to the Special Early Retirement Opportunities Program negotiated by Ford and the United Autoworkers union.¹ LaPointe’s union position was ultimately filled by a 44-year-old individual.

On April 24, 1990, LaPointe filed an Age Discrimination in Employment Act (“ADEA”) charge against Local 600 with the Michigan Department of Civil Rights and the United States Equal Employment Opportunity Commission (“EEOC”).² On May 30, 1990, LaPointe filed a four-count complaint in Wayne County Circuit Court. The appellees, relying on federal question jurisdiction, removed the lawsuit to federal court on December 3, 1990. The district court subsequently remanded Count I (wrongful discharge) and Count IV (intentional infliction of emotional distress and interference with contractual relations) to state court, but retained jurisdiction over Count II (age discrimination) and Count III (breach of the duty of fair representation). On September 10, 1991, the ap-pellees moved for summary judgment.

The district court granted the appellees’ summary judgment motion on February 7, 1992, 782 F.Supp. 347, after determining that: LaPointe had failed to set forth a pri-ma facie case of age discrimination; and, LaPointe had failed to exhaust internal union remedies prior to filing his fair representation claim.

LaPointe thereafter filed a timely notice of appeal challenging only the dismissal of his ADEA claim.

II.

Summary Judgment

Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A district court’s grant of summary judgment is reviewed de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). In its review, this court must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Id. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); 60 Ivy St. Corp., 822 F.2d at 1435.

“By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the nonmoving party. 60 Ivy St. Corp., 822 F.2d at 1435. If the disputed evidence “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted).

ADEA Claim

Though LaPointe argues on appeal that he “need not show that he was replaced by someone outside the protected class in order to establish a prima facie ease of age discrimination,” Appellant’s Brief at 13, the appellant’s contention is belied by established Sixth Circuit precedent:

The elements of a prima facie case of age discrimination require that the charging party demonstrate that (1) she was a member of the protected class, i.e., [at least 40] years of age; (2) that she was subjected to an adverse employment action; (3) that she was qualified for the particular position; and (4) that she was replaced by a person not a member of the protected class.

Gagne v. Northwestern Nat’l Ins. Co., 881 F.2d 309, 313 (6th Cir.1989) (emphasis added). See also Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir.1991) (“To establish a prima facie case under Title VII, a plaintiff must show that he is within a protected class; subject to an adverse employment action; qualified for the job; and replaced by a person outside the protected class.”). But see Bienkowshi v. American Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir.1988) (though “a prima facie case of age discrimination can be constructed where the plaintiff was replaced by a younger worker even if the younger worker is himself within the protected class,” the plaintiff must show “that he was replaced by a worker sufficiently younger in the- context of his employment to permit an inference of age discrimination”); Maxfield v. Sinclair Int’l, 766 F.2d 788, 792 (3d Cir.1985) (“[n]o case holds that an ADEA plaintiff can recover only if s/he was replaced by someone younger than 40, and there is no reason to engraft the requirement on to the law”), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986).

If a plaintiff successfully proves a prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s discharge.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). “Once the employer carries this burden, the burden shifts back to the plaintiff to prove by a preponderance of the evidence ‘that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination.’ ” Ang v. Procter & Gamble Co., 932 F.2d at 548 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)).

LaPointe resigned as the Health and Safety Representative on January 1, 1990, at age 51. On July 5, 1990, defendant-appellee Thompson assumed the Health and Safety Representative position at age 43. On July 1, 1991, Dan Courtney was appointed Health and Safety Representative at age 44. Because the undisputed facts reveal that LaPointe was replaced by individuals within the protected age group, LaPointe cannot establish a prima facie case of age discrimination under established Sixth Circuit precedent. See generally United States v. Warren, 973 F.2d 1304, 1309 (6th Cir.1992) (“One panel of this court cannot overrule the decision of a prior panel of this court.”).

LaPointe argues, however, that it was not necessary for him to establish a prima facie ease because he offered direct evidence of age discrimination. “Direct evidence of discrimination allows a plaintiff to proceed without meeting the requirements of a prima facie case set forth in McDonnell Douglas." Ang v. Procter & Gamble Co., 932 F.2d at 549; see also. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-622, 83 L.Ed.2d 523 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). In support of his assertion, LaPointe argues that:

[he] was told at various times that Mr. Thompson was going to get the older employees out. Mr. Wheeler went through the same experience with Mr. Thompson. Apparently, Wheeler was forced out and replaced by LaPointe temporarily, only so Thompson could reserve the job for someone younger. That is at least Thompson’s testimony. The inescapable fact though is that two straight members of a protected class were hounded out of his particular job and replaced by someone younger. Both Wheeler and LaPointe have testified that various ageist comments were made by Thompson as well as by members of Thompson’s caucus.

Appellant’s Brief at 16.

Though “[c]ase precedent clearly reflects that isolated and ambiguous statements ... are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination,” Gagne v. Northwestern Nat’l Ins. Co., 881 F.2d at 314, LaPointe’s assertions are corroborated by the deposition testimony of his predecessor as Health and Safety Representative, George Wheeler:

Q. And in the events that happened after Mr. Thompson was elected, what kind of things were happening to you after he took office that you considered to be wrong or harassment, or however you want to phrase it?

A. Well, it just started with guys kicking my office door. Guys screaming in the back about the old man ought to retire.

Q. Do you know which guys?

A. Their voices, yes. They’re mostly on the afternoon shift.

Q. Were they Business Agents or just guys from the plant?

A. Well, they were friends of the caucus. Mr. Thompson’s caucus. They campaigned for him.

Q. Did you ever see or hear Mr. Thompson say anything to that effect, that the older guys should retire or get out?

A. Yes, he made off the wall remarks continuously about people with thirty years, they ought to get out and let the younger guys — and he made this more than one time.

Q. Did you ever complain to Mr. Thompson about people kicking your door?

A. I told him that — I wanted to get along with him and to get these guys off my back. Just in general. It wasn’t just in the office. They broke into my desk a couple of times. It wasn’t just the office. It was smart remarks. I couldn’t go down to the bar with anybody, I would hear smart remarks. I couldn’t go to the cafeteria, I would hear smart remarks about oldtimers, they got thirty years, they ought to get their ass out of here.

Q. Smart remarks from whom?

A. Mr. Thompson made a few of them.

Joint Appendix at 133-34.

Though it is relevant to LaPointe’s age discrimination claim that defendant-appellee Thompson recommended LaPointe’s appointment at age 49, see White v. Mississippi State Oil & Gas Bd., 650 F.2d 540, 544 (5th Cir.1981) (“White was 52 when he was hired and 54 when he was fired; the argument that the same Board that would hire a 52-year-old would fire him two years later because of his age is a strained one”), the district court erroneously concluded that this “on its face rebut[ted] any presumption of age discrimination.” 782 F.Supp. 347, 350 n. 5.

Accordingly, the district court improperly granted the defendants’ summary judgment motion after concluding that La-Pointe had “failed to set forth a prima facie case of age discrimination,” 782 F.Supp. at 350, without considering LaPointe’s direct evidence of age discrimination.³

Though the appellees argue that “federal labor law preempts [LaPointe’s ADEA] claim because age discrimination is one of the conditions of employment negotiated by the Union and the Company,” Appellees’ Brief at 12, “the question of whether or not the plaintiff was discriminated against [is] separate from any possible defense the employer might have under the contract.... It is irrelevant to the preemption question whether or not the employer can defend by showing it had the right under the collective bargaining agreement to do what it did.” O’Shea v. Detroit News, 887 F.2d 683, 687 (6th Cir.1989); see also Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473, 1482 (6th Cir.1990) (“[A]n inquiry into the conduct of an employee and the motivation of an employer does not necessarily require an interpretation of a labor agreement.”). Simply stated, the ADEA action is not preempted by section 301 of the Labor Management Relations Act because “employees have the right not to be discriminated against on the basis of age or handicap without regard to the collective bargaining agreement’s language about an employee’s rights.” O’Shea v. Detroit News, 887 F.2d at 687.

III.

We REVERSE and REMAND to the district court for the aforementioned reasons.

1 . Though the district court noted that "plaintiff could have resigned from his union position but nonetheless retained his job with the Ford Motor Company,” District Court's Memorandum Opinion and Order at 2 n. 2, LaPointe maintains that Thompson threatened that he "would be gone, one way or another, because [Thompson] would still be around.” Joint Appendix at 244. Because we cannot say, as a matter of law at summary judgment, that the district court's assumption is correct, we reject the notion that LaPointe was not constructively discharged from both Ford and Local 600.

2 . On December 18, 1990, the EEOC issued its Determination which held (in relevant part):

The charging party alleges he was harassed by respondent and forced to take an early retirement because of his age, 52, in violation of the ADEA.

The evidence obtained during the investigation reveals that the charging party was appointed by the respondent to the position of Health and Safety Representative in 2/88. The evidence discloses that the harassment complained of by the charging party was motivated by union politics rather than the age of the charging party. On 1/1/90, the charging party voluntarily accepted an early retirement offer from the employer, removing him from the union position. The evidence shows that position was ultimately filled by a 44 year old male. Based on this analysis, I have determined that the evidence obtained during the investigation does not establish a violation of the statute.

EEOC Determination at 1.

3 . The district court further held:

For the sake of completeness, this Court notes that in formulating the ADEA, Congress expressly adopted the remedial scheme of the Fair Labor Standards Act ("FLSA”) to enforce ADEA’s provisions. Unions, or anyone acting in the capacity of officer or agent for such labor organizations, are not liable for monetary damages under the FLSA. Thus, even assuming plaintiff's prima facie case was established, plaintiff could not recover the relief sought.

782 F.Supp. at 350 n. 6 (citations omitted). The district court failed to acknowledge, however, that unions are liable for monetary damages under the FLSA "when acting as an employer.” 29 U.S.C. § 203(d). Accordingly, the district court must determine, on remand, whether Local 600 is liable to LaPointe for monetary damages.