432 F. App'x 516
6th Cir.2011Background
- Gilbert, openly homosexual, is a member of Local 46 (IATSE) with CMA, MTVN Direct, and CMT under exclusive hiring-hall agreements.
- After harassment by a co-worker, Local 46 stopped referring Gilbert and altered its referral process to exclude him.
- In 2008 he was not referred for CMA work; 2009 Stellar Awards also withdrew; he had to find lower-paying work directly with CMA.
- Local 46 allegedly sent a forged letter to employers accusing Gilbert, and charged him with baseless misconduct resulting in a six-month suspension.
- Gilbert sued Local 46, IATSE, CMA, CMT, and MTVN for discrimination, retaliation, and breach of the duty of fair representation; he sought to amend to add Title VII claims after EEOC letters arrived.
- The district court dismissed, and on appeal the court reverses in part, reinstating the duty-of-fair-representation claim against Local 46 and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sexual-orientation discrimination supports Title VII/THRA claims | Gilbert argues protected class under sex discrimination. | Defendants say Title VII does not prohibit sexual-orientation discrimination. | Discrimination based on sexual orientation is not actionable. |
| Whether sex-stereotyping theory can support a Title VII claim | Gilbert relies on sex-stereotyping discrimination. | Vickers requires gender non-conformity evidence; Gilbert lacks such facts. | Sex-stereotyping claim insufficient; dismissal affirmed for that theory. |
| Whether Gilbert's retaliation claim based on harassment is cognizable | Retaliation for speaking about harassment is alleged. | No unlawful employment practice based on retaliation for harassment under Title VII. | Retaliation claim fails as not an unlawful employment practice. |
| Whether Gilbert's duty-of-fair-representation claim against Local 46 survives | Local 46 acted arbitrarily/in bad faith, abusing hiring-hall power. | IATSE should not be liable; need agency relationship between Local 46 and IATSE. | Claim survives against Local 46; rejected against IATSE; remanded for further proceedings. |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (sex discrimination includes gender stereotyping concepts when based on sex)
- Vacca v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006) (sex-stereotyping requires gender-nonconforming behavior at work)
- Vaca v. Sipes, 386 U.S. 171 (U.S. 1967) (duty of fair representation applies to all union activity)
- Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67 (U.S. 1989) (unions must exercise power in hiring halls fairly)
- Merritt v. Int’l Ass’n of Machinists & Aerospace Workers, 613 F.3d 609 (6th Cir. 2010) (arbitrary or bad-faith conduct by a union can breach F.R.)