This week there have already been three interesting
decisions. In one, the Sixth Circuit
absolved a City of discrimination for accommodating a union demand to layoff
one group of employees over another, but pulled the union back into the
litigation for potential discrimination liability for making that demand in the
first place. Peeples
v. City of Detroit, No. 17-222
(6th Cir. 2018). The Court refused to let plaintiffs alleging race
discrimination “piggyback” on the only timely EEOC Charge which resulted in a
right-to-sue letter when that charge alleged only national origin
discrimination. It also refused to find
statements made by a city employee about the union’s purported motivation as
direct evidence. It also found no
circumstantial evidence of discrimination based only on statistics which did
not attempt to show significant deviations from non-discriminatory factors,
like seniority, and which were based on small sample size. The Court, however, found that the plaintiffs
did not need to show that the union breached its duty of fair representation in
order to sue the union under Title VII.
According to the Court’s opinion, the City of Detroit
instituted layoffs in advance of filing for bankruptcy protection. It announced the layoff list based on
city-wide seniority, but the fire department union objected on the grounds that
it should be based on department seniority and filed a grievance. The City
ultimately resolved the grievance by granting the union’s request. The
distinction resulted in the layoff of more minority officers under the union’s proposal
than the City’s plan. After four EEOC
Charges followed, the fire union relented and agreed to the City’s initial plan. The City ended up re-hiring the affected
employees 80 days later and giving them full back pay, missed overtime pay and
medical benefits. Nonetheless, even
though only one of the plaintiffs had obtained a right-to-sue letter from the
EEOC, eleven of the affected minority employees brought suit against the City
and the Union, seeking compensatory and punitive damages.
The Court addressed whether all of the plaintiffs could
piggy back onto the one plaintiff’s right-to-sue letter. Sadly for the plaintiffs, they did not raise
any arguments to rebut the failure-to-exhaust remedies argument raised in the
City’s summary judgment motion and, thus, were limited in what could be argued
on appeal. The only plaintiff to obtain
a right-to-sue letter asserted only a national origin discrimination claim and
the remaining plaintiffs were asserting racial discrimination. The Court found that they were not
substantially related claims, and thus the race claims could not piggyback onto
an EEOC Charge asserting only national origin discrimination.
The Court also rejected the plaintiff’s claim of direct
evidence of discrimination. One of the plaintiffs
testified in deposition that he heard a City employee state that he concluded the
union was trying to protect the “white boys” from layoff. This was not direct evidence of
discrimination because it was a city employee explaining the union’s motivation
and required an inference that the City endorsed that motive. It also likely hearsay, but the Court did not
ultimately resolve that issue.
The Court also rejected the plaintiffs’ statistical evidence,
which was pretty much all that they had to show that they were selected for the
layoff on account of their race (in that they were not replaced). First, they failed to organize their
statistics in any meaningful way before the trial court. Second, the fact that the percentage of white
layoffs fell and of minority layoffs rose significantly under the union plan
did not, by itself, show impermissible bias.
To prove an inference of bias, “the statistics must show a significant
disparity and eliminate the most common nondiscriminatory explanations for the
disparity.” For instance, one could use
three standard deviations from hypothetical random chance. The plaintiffs made no effort to account for
seniority differences, for instance. The
City also argued about the sample size (only 27 people) and the other
cost-cutting efforts made, including demotions, reductions in overtime and
rescinded promotions. The plaintiffs
also made no effort to show the racial composition of the fire department
before and after the layoff. “Unless the statistics, standing alone or in
comparison, are sufficient to lead the mind naturally to the conclusion sought,
they have no probative value; they do not move the proof one way or another.”
The Court also rejected the plaintiff’s damage claim in that
they had already received full back pay with the resolution of their grievances.
The plaintiffs failed to introduce any evidence disputing that they had already
received full back pay. The union
pointed out that they never raised breach of settlement agreement claims based
on the resolution of their grievances when they were reinstated. Accordingly, while they might have some
compensatory and punitive damages available under Title VII, their claims for
backpay were rejected by the trial and appellate courts.
Finally, the Court rejected the union’s argument that Title
VII claims were subject to the same burden of proof as fair representation
claims under labor-relations laws, meaning that the plaintiffs need not show
that the union breached its duty of fair representation before it could sue
them for discrimination under Title VII. Because the union had prevailed on
that issue before the trial court, the Sixth Circuit reversed the union’s summary
judgment.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment attorney.
