Stewart v. Theatrical Stage Employees Union Local No. 2

211 F. Supp. 3d 1094, 2016 U.S. Dist. LEXIS 134237, 2016 WL 5476250
CourtDistrict Court, N.D. Illinois
DecidedSeptember 29, 2016
DocketNo. 13 C 7343
StatusPublished
Cited by3 cases

This text of 211 F. Supp. 3d 1094 (Stewart v. Theatrical Stage Employees Union Local No. 2) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewart v. Theatrical Stage Employees Union Local No. 2, 211 F. Supp. 3d 1094, 2016 U.S. Dist. LEXIS 134237, 2016 WL 5476250 (N.D. Ill. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United States District Judge

Pro se Plaintiff Benny L. Stewart is a staging technician and was a member of the Theatrical Stage Employees Union Local No. 2 (“Union”) from 2007 to 2013. In this suit, Stewart—who is 60 years old and African American—alleges that the Union failed to represent him in a September 2011 wage grievance and later failed to adequately respond to harassment of Stewart by another Union member. In both instances, Stewart claims that the Union’s actions were based on his race and intended as retaliation for an earlier grievance against the Union that Steward had filed with the Illinois Department of Human Rights (“IDHR”). At the motion-to-dismiss stage, the parties agreed that [1098]*1098Plaintiffs claims arose under Title VII, and discovery proceeded on that basis. On September 28, 2015, the court struck Defendant’s motion for summary judgment, which had been fully briefed by the parties. The court noted its concern that Plaintiffs claims, which he filed pro se, may have been more appropriately labeled as violations of the duty of fair representation under Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, or as interference with Plaintiffs right to contract in violation of 42 U.S.C.§ 1981. The 'Union (1) moves for reconsideration [77] of that order, arguing that the court “went beyond the adversarial issues presented to the court by the parties”; and (2) asks the court to grant the Union’s motion for summary judgment [41]. For the reasons set forth below, both motions are granted.

BACKGROUND

I. Factual history

In February 2011, Stewart filed a charge of discrimination with the IDHR against the Union, alleging, among other things, that he had been given “unequal job assignments” because of his race. (Stewart v. Theatrical Stage Employees Union, Compl., No. 13 C 538, Ex. 1 to Def.’s Mot. to Reconsider [78].) That charge led to an earlier lawsuit filed in this court, which Judge James Zagel dismissed in 2013 due to Stewart’s failure to comply with a court order.1 This suit arises from another charge of discrimination Stewart filed against the Union in March 2012. (Charge of Discrimination, Compl. at 10.) Plaintiff cross-filed this charge with the IDHR and the Equal Employment Opportunity Commission. The EEOC investigated Stewart’s claim and issued a right-to-sue letter in July 2013 (EEOC Notice of Rights, Compl. at 18.) Plaintiff filed this suit three months later. In it, Plaintiff alleges that, because of Stewart’s race, the Union failed to promote him, “refused to provide a fair duty of representation,” and failed to stop harassment against him. (Compl. at 4.) Stewart also claims that the Union retaliated against him for his February 2011 IDHR charge. (Id.) These claims involve two underlying incidents: (1) a September 2011 wage grievance in which the Union purportedly failed to represent Plaintiff; and (2) harassment by Union member Mike Yeager in October 2011.

A. September 2011 wage grievance

The Union refers its members to employers in the Chicago theatre industry for various short-term employment opportunities. (PL’s Resp. to Def.’s R. 56.1 Statement [57], hereinafter “Pl.’s 56.1 Resp.,” ¶ 7.) Some of these employers pay Union members directly, while others mail checks to the Union, which then forwards the checks to its members. (Id. ¶¶ 10, 11.) On September 29, 2011, Plaintiff wrote a letter to Union secretary Tom Cleary, inquiring about missing checks from three shows he worked in the summer of that year. (Stewart Dep., Ex. 1 to Def.’s Mot. for S.J. [45-1] at 21.) The checks were for work Stewart performed at (1) a July 2011 Goo Goo Dolls concert; (2) an August 2011 production of Beauty and the Beast, produced by Broadway in Chicago; and (3) an August 2011 Paul McCartney Concert at Wrigley Field. (Id. at 22, 23, 29.) With respect to the first two checks, the dispute was quickly resolved. Sometime after sending his letter, Plaintiff realized on his own that he had already received payment for the Goo Goo Dolls concert. (Id. at 25-26, 28 (“[I]t would be safe to assume by [Nov. 28, 2011, [1099]*1099when Stewart wrote another letter to the Union,] that the Goo Goo Doll check had been resolved.”).) He was “confused” and did not recognize that he had been paid for the event because the relevant check included additional funds from another job. (Id. at 24.) As for the Beauty and the Beast show, Stewart contacted2 Broadway in Chicago directly, and the company reissued Stewart’s paycheck in October 2011. (Id. at 23.)

The missing check from the Paul McCartney concert proved more of a challenge. Program Production, Stewart’s employer for that show, is one of the of the employers whose practice is to send checks for stagehands directly to the Union. (Id. at 30.) On September 15, 2011, Stewart called the Union to ask about the McCartney check and spoke with Maria Flores, the office administrator. (Id. at 30-31.) She told Plaintiff to “give it time.” (Id. at 30.) Stewart called the Union again to discuss the check “around the end of September.” (Id. at 31.) On this call, Maria informed Plaintiff that the Union had determined that someone had endorsed the check with Stewart’s name and cashed it. When Stewart told Maria that he had never received the check, she mailed him a photocopy of the endorsed check. (Id. at 43.) At this point, Stewart realized “that there had been a forgery.” (Id. at 33.) On October 18, 2011, Stewart wrote a letter to Ralph Hicks, the payroll manager at Program Productions, asking Hicks to file a fraud complaint with the company’s bank and reissue the check to Stewart. (Id. at 42.) On some later date, Plaintiff spoke with Hicks on the phone. Hicks suggested that Stewart directly contact the banks involved, and Plaintiff took this advice. On unidentified dates, he contacted Fifth Third Bank (the bank that issued the check), Citibank (the bank that cashed the check), and Bank of America (the bank where the check inexplicably “ultimately ended up”). But none of the financial institutions would give him any information. (Id. at 44.) Instead, each bank told Stewart that Program Productions would have to file a fraud complaint on Stewart’s behalf. (Id.) Plaintiff filed a police report related to the missing check and repeatedly asked Program Productions to file a fraud complaint with the banks, but the company never reissued the check and never filed a complaint. (Id.) Finally, on July 26, 2012, Plaintiff filed suit against Program Productions in small claims court. The court awarded him $1,194.28—the amount of the missing paycheck—plus court costs on September 6, 2012. (Id. at 45.)

Apart from telling Stewart that his check and been cashed and then sending him a copy of the cashed check, the Union took no action on Stewart’s dispute with Program Productions. (Stewart Dep. at 49.) The Union never responded to Plaintiffs September 28, 2011 letter, and only “vaguely responded” to his inquiries on the phone. (Id. at 51.) Stewart is not aware of any other Union member’s having a problem with his or her paycheck from the August 2011 McCartney concert.

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211 F. Supp. 3d 1094, 2016 U.S. Dist. LEXIS 134237, 2016 WL 5476250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-theatrical-stage-employees-union-local-no-2-ilnd-2016.