MARTHA L. ANGLIN, Plaintiff,
CERES GULF, INC. and WEST GULF MARITIME ASSOCIATION, Defendants.
OPINION AND ORDER OF SUMMARY JUDGMENT
MELINDA HARMON, District Judge.
Pending before the Court in the above referenced cause, asserting (1) violations of Title VII of 1964, as amended, 42 U.S.C. § 2000e, et seq. (retaliation and hostile work environment based on gender), and (2) conspiracy to deny Plaintiff her rights under Title VII,  is Defendants Ceres Gulf, Inc. ("Ceres") and West Gulf Maritime Association's ("WGMA's") motion for summary judgment (instrument #79). All other Defendants in this action have been dismissed.
On appeal the Fifth Circuit initially affirmed this Court's earlier summary judgment (#60) in favor of all Defendants in this action, but on rehearing reversed and remanded that part of the Opinion and Order involving Ceres and WGMA. Judgment on Rehearing and On Petition for Rehearing, # 74 and #75. The Fifth Circuit concluded that Plaintiff raised a genuine issue of material fact as to whether the Memorandum of Understanding stating that Title VII claims must be exhausted in accordance with that grievance and arbitration procedure in the CBA binds Plaintiff. At docket call on December 6, 2013 after the Court denied a motion to abate this case while Plaintiff exhausted the internal grievance procedure under the CBA with respect to her breach of CBA claim and indicated that it would grant summary judgment on that claim on the grounds that she lacked standing to pursue it here, as it now has, Defendants agreed on the record to waive their MOU defense so that the Title VII and related conspiracy claims could be resolved now.
After carefully reviewing the pleadings, the motions, the responses, the replies, and the applicable law, for the reasons explained below, the Court finds that Anglin fails to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), no less to provide summary judgment evidence pursuant Rule 56, to support key elements of her causes of action under Title VII to raise a genuine issue of material fact for trial.
WGMA is a nonprofit maritime trade association of steamship owners, operators, agents, terminal operators, and stevedores, among whose stevedore members is Ceres, Plaintiff's direct employer since 2004. Plaintiff Martha L. Anglin ("Plaintiff" or "Anglin") is a union member who worked pursuant to a CBA between WGMA and Anglin's union, the International Longshoreman's Association ("ILA"),  negotiated and administered by WGMA.
In August 2004 Anglin began working for Ceres as a "regular" employee in the position of a shipping clerk. A "regular" employee is guaranteed forty hours of work and paid vacation and holidays.
Anglin claims that in the fall of 2008, she was named as a witness in a Title VII complaint, which in the First Amended Complaint she stated was against Ceres, but later conceded was against another employer, not Anglin's. Affidavit of Anglin, #80, Ex. F. She claims that the superintendent of the defendant company stated that the stevedore companies were going to "take care of me." Id. at p.2. She alleges, "It is the common practice at the Houston docks that if you complain about one stevedore company you get blacklisted by all the companies." Id. at pp. 1-2. She asserts that after learning that she was named as a witness, Ceres unilaterally determined that she was no longer qualified to perform as Clerk in Charge ("CIC") or Clerk Working Ship ("CWS") and demoted her from her position as CIC and CWS, where she had worked for several years, and "allowed her to work as timekeeper." She further complains that a male employee with less Seniority, Greg Walcott,  and a male employee with the same Seniority, Bobby Oliphant, were allowed to be the CWS. However, she contends, "Mr. Oliphant did not know how to complete the paper work, so not only was I doing the duties and paperwork of a timekeeper, but I was also doing all the paperwork of the Clerk Working Ship for Mr. Oliphant." Id.
In April 2009, Anglin claimed that she was checking messages on the company phone when she saw a text message with "an offensive sexually explicit message about swallowing sperm.'" Id. She filed a complaint. Afterwards, without identifying when, she claims that in retaliation she was "assigned to the least desirable jobs in an effort to force me to quit as a regular employee, " that she was required to work in the heat without breaks, while "union members off the board who had less seniority than I and whom [ sic ] were not regular employees" were assigned the inside office jobs and jobs sitting in air conditioned trucks. Furthermore she claims that her male companions who were working in the heat were permitted to take breaks and were relieved on a regular basis, while she was not. Id. at pp. 2-3.
In the summer of 2009, Anglin suffered three episodes of work-related illness, necessitating transport to a hospital by ambulance. After one of the stays, she went to the docks and used a company truck to pick up her personal belongings that had been left behind when she was taken to the hospital. She was written up for using the truck and put on a thirty-day non-referral,  even though, she claims, male workers regularly used the trucks when they were not working for Ceres. She complains of one instance, referred to the grievance panel, that involved male workers who were not even Ceres employees driving the company trucks to a training session. She asserts that she was never told not to use the trucks. The ILA 1351 filed a grievance on Anglin's behalf, but when it was heard, the non-referral was upheld. Egmon Decl. at Ex. 4.
As another example of discriminatory treatment, Anglin claims that when she asked Randy Weiskopf to explain something about a computer shipping program and he suggested a shortcut, Chief Clerk Wayne Kocurek, who is responsible for assigning work to Plaintiff,  told Weiskopf, "You don't tell her nothing-you don't teach her nothing." #80, Ex. F at p. 3.
After the three hospitalizations in the summer of 2009, Anglin was released to return to work with restrictions to minimize her exposure to heat and sun because it might increase her blood pressure. Anglin, Ceres, and the local union negotiated about the kinds of jobs that would meet these restrictions. Ceres represented that it did not have enough work that met the restrictions so that she could remain a regular employee, i.e., have forty hours of work per week, but that it would accommodate her by allowing her to "work off the board" instead. Anglin claims this articulated reason is false and that Ceres breached its contract with her. She cites the testimony of Nathan Wesley, Injunction Hearing Transcript,  #80, Ex. H at a page marked USCA5 340, but the Court finds that testimony does not state that Ceres had enough work to give her 40 hours a week. Anglin's First Amended Complaint asserts that as a regular employee, she is supposed to have preference over employees who are working "off the board, " but that Ceres limited how often she was called to work so that she could not satisfy the forty-hour-a-week requirement even though there were plenty of assignments available. Anglin further claims that under her contract with ILA 1351, she is not allowed to take "off the board" jobs as long as she is a regular employee. #80, Ex. G, Hiring Hall Rules of ILA local 1351 at p. 5, ¶ 8 ("REGULAR EMPLOYEES GETTING ON BOARD. No regular employee can get on the board."). Anglin alleges that on November 9, 2009 she sent a notice of breach of the CBA to Ceres.
In January 2010 Plaintiff did not receive her holiday pay for December 2009, a sign, according to her, that she was no longer a regular employee. She states that she immediately told the Local Union President to commence the grievance process under the CBA by talking to Ceres about her purported termination. After the meeting, she was told by the Union President that Ceres and WGMA wanted to respond to her in writing, but she never received such a response, allegedly a breach of the CBA because she maintains that she had used the grievance procedure under the CBA. She continued to work for Ceres, but at fewer than forty hours per week. By April 2010, however, Ceres failed to call Anglin for any work hours. She claims that to maintain her health insurance she must work an average of thirty hours per week, that her retirement contribution would be substantially reduced by working less than forty hours per week, and that she would be unable to retain her Seniority and benefits with fewer work hours.
On September 30, 2011, Ceres (#53) and WGMA (#54) filed motions for summary judgment, arguing in relevant part that the evidence she presented was insufficient to create a genuine issue of material fact on her claims of conspiracy and violation of Title VII against them.
In CBA negotiations in 2004 the parties to the CBA supplemented the CBA's terms with a "memorandum of understanding" ("MOU"),  which was reduced to writing. The MOU explicitly stated,
Any complaint that there has been a violation of any employment law, such as Title VII, FLSA, HIPAA, ERISA, ADA, ADEA, FMLA and OSHA, or any comparable state law or local ordinance, shall be resolved solely by the grievance and arbitration procedures of the collective bargaining agreement.
#54-3 at p. 2; also #79-1, Ex. 8 at p. 1.
On the appeal of this Court's Opinion (#60), based on its recent opinion in Ibarra v. United Parcel Service, 695 F.3d 354 (5th Cir. 2012)(holding that for a CBA "to clearly and unmistakably' waive a union member's right to a judicial forum for statutory discrimination claims, the CBA must specifically identify' the relevant statute or otherwise state that statutory discrimination claims shall be subject to the [CBA's] grievance procedure"), the Fifth Circuit found that the CBA in dispute here failed to "specifically identify" Title VII or to "state that statutory discrimination claims shall be subject to the [CBA's] grievance procedure." #75 at p. 2. The panel then turned to the 2004 MOU,  which clearly does identify Title VII, but opined,
There remains a factual question as to whether a Memorandum of Understanding (MOU) entered into between the Union and WGMA is binding on Anglin. The MOU specifically identifies Title VII, indicating inter alia that complaints brought under that statute are subject to the CBA's grievance and arbitration provisions. Thus, if the MOU is binding on Anglin, the MOU and CBA together would appear to satisfy this Court's requirements in Ibarra. However, Anglin has testified that the MOU was rejected by local union members and that its provisions were voluntary. Her testimony appears to be uncontroverted. Further, the copy of the MOU provided in the trial record was never executed. In its Opinion on the Motions for Summary Judgment, the district court discussed this question only in passing.
The panel reversed that part of this Court's Opinion relating to the summary judgment in favor of Ceres and WGMA and remanded the matter to this Court to determine whether the MOU binds Anglin to follow and exhaust the grievance and arbitration procedure of the CBA on her Title VII claims, or whether she is free to pursue them in this court. As noted, Defendants have now withdrawn their defense based on the MOU, so this Court can rule on the motions for summary judgment of the Title VII issues and related, derivative conspiracy claim.
Standard of Review:
Federal Rule of Civil Procedure 56
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 317, 323 (1986). The substantive law governing the claims identifies the essential elements and thus indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where the non-movant bears the burden of proof at trial, the movant need only point to the absence of evidence to support an essential element of the non-movant's case; the movant does not have to support its motion with evidence negating the non-movant's case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant succeeds, the non-movant must come forward with evidence such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant "must come forward with specific facts showing there is a genuine issue for trial.'" Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "A factual dispute is deemed genuine' if a reasonable juror could return a verdict for the nonmovant, and a fact is considered material' if it might affect the outcome of the litigation under the governing substantive law." Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5th Cir. 1993). Summary judgment is proper if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322-23; Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).
Although the court draws all reasonable inferences in favor of the non-movant, the non-movant "cannot defeat summary judgment with conclusory, unsubstantiated assertions, or only a scintilla of evidence.'" Turner v. Baylor Richardson Med. Center, 476 F.3d 337, 343 (5th Cir. 2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant's burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir. 1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). Nor are pleadings competent summary judgment evidence. Little, 37 F.3d at 1075; Wallace v. Texas Tech. U., 80 F.3d 1042, 1045 (5th Cir. 1996); Adams Family Trust v. John Hancock Life Ins. Co., 424 Fed.Appx. 377, 81 & n.11 (5th Cir. May 11, 2011).
A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. Chevron Phillips, 570 F.3d 606, 612 n.3 (5th Cir. 2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir. 1999). Nor does the court have to sift through the record in search of evidence to support opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
While a failure to state a claim is usually challenged by a motion for dismissal under Rule 12(b)(6), it may also constitute the basis for a summary judgment under Rule 56 because "the failure to state a claim is the functional equivalent' of the failure to raise a genuine issue of material fact." Whalen v. Carter, 954 F.2d 1087, 1098 (5th Cir. 1992). In such circumstances, the motion for summary judgment challenging the sufficiency of the complaint will be "evaluated much the same as a 12(b)(6) motion to dismiss." Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993). A motion for summary judgment should be granted if, accepting ...