Susan J. Thorn v. Amalgamated Transit ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3085
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Susan J. Thorn, *
*
Plaintiff - Appellant, *
*
v. * Appeal from the United States
* District Court for the
Amalgamated Transit Union; * District of Minnesota.
Amalgamated Transit Union, *
Local 1005, *
*
Defendants - Appellees. *
*
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Submitted: March 14, 2002
Filed: September 30, 2002
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Before LOKEN and JOHN R. GIBSON, Circuit Judges, and GOLDBERG, Judge
of the United States Court of International Trade.*
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LOKEN, Circuit Judge.
Susan Thorn, a Twin Cities bus driver and member of the Amalgamated Transit
Union (ATU) and its Local 1005 (collectively, “the Unions”), brought this suit
against her employer and the Unions asserting claims for sexual harassment and
*
The HONORABLE RICHARD W. GOLDBERG, sitting by designation.
reprisal discrimination in violation of Title VII, 42 U.S.C. §§ 2000e-2(c), -3(a), and
the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363.03, subds. 1 & 7. The
case was removed to federal court, and the district court1 denied Thorn’s motion to
remand. After she settled with her employer, the court dismissed Thorn’s sexual
harassment claims against the Unions because she alleged only “passive
acquiescence” in the alleged sexual harassment. The court later granted summary
judgment dismissing her reprisal claims. Thorn appeals all three rulings. We affirm.
I. Background.
In June of 1999, Thorn complained to a Local 1005 steward that she was a
victim of on-going and unwelcome sexual advances, requests for sexual favors, and
communications of a sexual nature by male co-workers and supervisors at her work
site, a Metro Transit garage in Brooklyn Center, Minnesota. Thorn accused a number
of Local 1005 members of the alleged sexual harassment. A few days later, Thorn’s
accusations were brought to the attention of the employer’s Office of Diversity and
Equal Opportunity (ODEO), which began an official investigation. Thorn did not file
or attempt to file a grievance request with Local 1005.
At two union meetings on June 22, Local 1005 President Robert Rossman
announced that the employer had commenced a “witch hunt,” similar to a 1995
ODEO investigation that resulted in the disciplining of many Local 1005 members.
Thorn attended the second union meeting. She alleges that Rossman told union
members “not to answer any of [ODEO’s] questions even with their Union
representative present.” Rossman claims he merely urged members to “bring your
union representative [to any ODEO interview], don’t say much and basically don’t
sign anything because they’ll change it on you.” After the meeting, Thorn wrote
1
The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota.
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ATU’s President, James La Sala, objecting to Rossman’s depiction of the
investigation and his instructions to Local 1005 members. ATU inquired into
Rossman’s actions and then advised Thorn that ATU and Local 1005 were
“committed to a workplace free from harassment or discrimination of any form,” and
that Rossman’s comments were merely an attempt to establish an appropriate role for
Local 1005 in the ensuing investigation.
At the end of June, the employer transferred Thorn to another garage at her
request. She alleges she encountered hostility from male co-workers who were
members of Local 1005 at the new work site. After the ODEO investigation, the
employer disciplined several union members Thorn had accused of sexual harassment
for inappropriate behavior. They filed grievances, and Local 1005 pursued the
grievances on their behalf. Though the findings of inappropriate behavior were
ultimately upheld at the second stage of the grievance process or after arbitration, the
initial discipline imposed on many grievants was found to be too severe. Some of the
grievance decisions also questioned Thorn’s credibility.
In October 1999, Thorn’s attorney wrote La Sala accusing the Unions of sexual
harassment and reprisal discrimination for failing to take appropriate action to end the
discrimination by union members, and, citing Rossman’s statements at the June 22
meetings, for urging obstruction of the ODEO investigation. In addition to
demanding a substantial monetary settlement and threatening litigation, counsel
wrote:
Ms. Susan Thorn has retained me to represent her regarding her union
membership with [ATU]. . . . This letter is intended to provide you with
an account of some of the facts giving rise to Ms. Thorn’s claims of
sexual harassment, reprisal discrimination and aiding and abetting
discrimination against ATU and her Union. . . . I ask that you nor
anyone else from ATU or her local Union discuss this matter with Ms.
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Thorn at this time. I will need to be present for any communication you
have with Ms. Thorn regarding this matter.
La Sala forwarded the letter to Rossman, who sought advice from Local 1005's
counsel, Gregg Corwin. Rossman then issued a memorandum to Local 1005’s
executive board instructing that, “if Susan Thorn contacts an executive board member
for any reason, tell her our legal counsel advised you that you cannot talk to her.
Have her attorney call Gregg Corwin.” Thereafter, Thorn on two occasions sought
assistance from her union representative in resolving unrelated disputes with her
employer over issues covered by the collective bargaining agreement. However, he
declined to talk to her, citing Rossman’s instruction that all communication must go
through counsel.
II. The Reprisal Discrimination Claims.
In reviewing the district court’s grant of summary judgment dismissing Thorn’s
reprisal discrimination claims under Title VII and the MHRA, we apply the familiar
McDonnell Douglas three-part burden shifting analysis. See Buettner v. Arch Coal
Sales Co., 216 F.3d 707, 713-14 (8th Cir. 2000), cert. denied, 531 U.S. 1077 (2001);
Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Absent
direct evidence of discrimination, we ask first whether plaintiff presented a prima
facie case of reprisal discrimination, next whether defendant rebutted the resulting
presumption of discrimination by advancing a legitimate reason for its challenged
behavior, and finally whether plaintiff refuted defendant’s legitimate reason with
sufficient evidence of pretext.
Relying on cases involving alleged employer reprisal, such as Kiel v. Select
Artificials, Inc., 169 F.3d 1131 (8th Cir.), cert. denied, 528 U.S. 818 (1999), the
district court dismissed Thorn’s reprisal claims because there is no evidence the
Unions subjected Thorn to adverse employment action, and therefore she failed to
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present a prima facie case of reprisal discrimination by the Unions. Thorn argues that
adverse employment action is too narrow a focus when the reprisal defendant is not
the plaintiff’s employer.
The applicable statutory language supports this contention. Title VII provides
that it is unlawful “for a labor organization to discriminate against any member”
because she engaged in protected activity. 42 U.S.C. § 2000e-3(a). The MHRA
prohibition is even more broadly written, defining unlawful reprisal to include “any
form of intimidation, retaliation, or harassment.” Minn. Stat. § 363.03, subd. 7. In
Martin v. Local 1513, IAM, 859 F.2d 581, 585 (8th Cir. 1988), we held that, to
establish a prima facie case of reprisal discrimination, plaintiff must prove that she
engaged in protected activity and that the union “took adverse action against [her]”
that was causally linked to the protected activity. That is the proper test.2 Therefore,
to survive summary judgment on this ground, Thorn need only show that the Unions
took some meaningful adverse action against her as a union member.
Thorn’s reprisal claims are premised on two events. First, Thorn argues that
Rossman’s comments at the June 22 Union meetings constituted intimidation and
harassment in reprisal for her sexual harassment complaints against Local 1005
members. Though Rossman’s comments may not have been tactful given Thorn’s
presence, we conclude they fell short of actionable harassment or intimidation. Title
VII is not “a general civility code for the American workplace.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Therefore, in employer
retaliation cases, “ostracism and rudeness by supervisors and co-workers do not rise
to the level of an adverse employment action.” Gagnon v. Sprint Corp., 284 F.3d
839, 850 (8th Cir. 2002). These principles apply with at least equal force to the rough
2
Similarly, Frazier v. Fairhaven School Committee, 276 F.3d 52, 67 (1st Cir.
2002), and Murray v. New York University College of Dentistry, 57 F.3d 243, 248
(2d Cir. 1995), adopted a modified prima facie case requirement for reprisal claims
against educational defendants not acting as employers.
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and tumble of union meetings, where members gather voluntarily to discuss
controversial issues likely to provoke strong feelings and divergent views. At the
June 22 meeting, Local 1005 took no action to deprive Thorn of her membership
privileges. Indeed, Rossman never mentioned Thorn by name, nor did he comment
on her harassment complaint. The fact that Thorn took offense at Rossman’s hostile
and skeptical attitude toward the employer’s ODEO investigation does not give rise
to a claim of unlawful reprisal discrimination.3
Second, Thorn argues that the Unions’ refusal to give her routine advice about
collective bargaining agreement issues unrelated to her harassment complaint
constituted unlawful reprisal discrimination. We are inclined to believe that
withholding assistance a union normally affords its members does satisfy the adverse-
action element of a plaintiff’s prima facie case. See Johnson v. Palma, 931 F.2d 203,
207 (2d Cir. 1991) (refusal to process grievance unless member withdrew
discrimination claim satisfies this element). However, even if Thorn presented a
prima facie case in this regard, the Unions responded with a legitimate explanation --
they were acting in response to the letter from Thorn’s attorney threatening litigation,
demanding a substantial monetary settlement, and insisting that the attorney “be
present for any communication you have with Ms. Thorn regarding this matter.”
Though Thorn argues the response was an over-reaction because counsel’s letter was
limited to “this matter,” the Unions presented uncontradicted evidence that the
response was made after consulting with Local 1005’s attorney. Thorn presented no
evidence that this legitimate reason was pretextual, and no explanation why she could
3
In addition, the summary judgment record includes an August 10, 1999 letter
from Rossman to an ATU vice president explaining that Rossman’s caution to Local
1005 members was justified by improprieties that occurred in the 1995 ODEO
investigation. Thus, the Unions argue there was a legitimate, non-discriminatory
reason for Rossman’s comments at the June 22 meetings. Thorn presented no
evidence that this reason was a pretext for unlawful reprisal discrimination. See
Cronquist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001).
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not have obtained the union assistance she sought simply by bringing the
communication problem to the attention of her attorney so that the two attorneys
could clarify the situation.
For these reasons, we affirm the district court’s grant of summary judgment
dismissing Thorn’s reprisal discrimination claims.
III. The Sexual Harassment Claims.
Thorn argues the district court erred in granting the Unions’ motion to dismiss
her Title VII and MHRA sexual harassment claims, a ruling we review de novo. See
Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). As relevant here,
Title VII provides that it is an unlawful employment practice for a labor organization
“(1) to exclude or to expel from its membership, or otherwise to discriminate against,
any individual because of [her] sex [or] (3) to cause or attempt to cause an employer
to discriminate against an individual in violation of this section.” 42 U.S.C. § 2000e-
2(c). Though the corresponding prohibitions in the MHRA are worded differently,
Minnesota courts apply substantially the same standards in construing that statute.
See Bersie v. Zycad Corp., 399 N.W.2d 141, 146 (Minn. App. 1987).
Thorn’s complaint alleged that her co-workers subjected her to pervasive and
unwanted sexual harassment that “substantially interfered with the Plaintiff’s
employment” and “created an intimidating, hostile, and offensive employment for the
Plaintiff.” In other words, Thorn complained of sexual harassment that affected her
employment, not her membership in the Unions or her participation in a union
sponsored or controlled activity, such as the strike at issue in Dowd v. United
Steelworkers of America, Local No. 286, 253 F.3d 1093, 1101-03 (8th Cir. 2001).
A labor organization is liable for an employer’s discrimination in the workplace if it
causes or attempts to cause the employer to discriminate, § 2000e-2(c)(3); or if the
union “purposefully acts or refuses to act in a manner which prevents or obstructs a
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reasonable accommodation by the employer,” Carter v. Chrysler Corp., 173 F.3d 693,
703-04 (8th Cir. 1999); or if the union “pursue[s] a policy of rejecting disparate-
treatment grievances” meant to vindicate employee rights protected by Title VII,
Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987).
Noting that Thorn’s complaint “does not allege that she requested [either
Union] to file a sexual harassment grievance against Metro Transit,” the district court
dismissed the sexual harassment claims because “Plaintiff has failed to allege conduct
beyond passivity on the part of the ATU and the Local Union.” Thorn argues that her
complaint was sufficient to state a sexual harassment claim because “unions have an
affirmative duty under Title VII and the MHRA to take remedial action to end
discrimination amongst their members.”
Though the Unions were prohibited from causing or assisting unlawful
discrimination by Thorn’s employer, nowhere in either statute do we find language
imposing upon unions an affirmative duty to investigate and take steps to remedy
employer discrimination. See, e.g., Anjelino v. New York Times Co., 200 F.3d 73,
95-96 (3d Cir. 1999) (“While a union may be held liable under Title VII, the record
here does not demonstrate that the Union itself instigated or actively supported the
discriminatory acts allegedly experienced by the appellants. Therefore, the Union is
not liable.”). Furthermore, imposing such a duty would place unions in an untenable
position whenever one member accused another member of causing the employer to
discriminate. “A union, unlike an employer, is a democratically controlled institution
directed by the will of its constituents, subject to the duty of fair representation. Like
other representative entities, unions must balance the competing claims of its
constituents.” Goodman, 482 U.S. at 688-89 (1987) (Powell, J., concurring in part
and dissenting in part). When the employer investigates a sexual harassment claim
by one union member against another, the union has a statutory duty to fairly
represent both in their disciplinary dealings with the employer.
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Here, Thorn’s complaint did not allege that the Unions refused to file a
grievance or otherwise assert a sexual harassment claim against Metro Transit on her
behalf. Instead, the complaint alleges that, “[d]espite [] knowledge of the sexual
harassment of the Plaintiff by [union] members, [the Unions] failed to take timely and
appropriate remedial action.” On this record, we agree with the district court that
Thorn has only alleged non-actionable passive acquiescence by the Unions in the
employer’s allegedly unlawful failure to remedy sexual harassment. Rossman’s
comments at the June 22 union meetings did not amount to active participation in the
alleged sexual harassment or active obstruction of a reasonable accommodation by
the employer.
IV. The Motion To Remand Issue.
Thorn commenced this action in Minnesota state court on April 3, 2000. The
employer removed the case to federal court. When ATU did not join in the removal
within thirty days of being served, Thorn moved to remand the case to state court.
The district court denied the motion, concluding that ATU is not an indispensable
party. Thorn argues the court erred in denying her motion to remand.
Removal is authorized by 28 U.S.C. § 1441 and governed by § 1446. Where
there are multiple defendants, all must join in a petition to remove within thirty days
of service. See Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 754 &
n.2 (8th Cir. 2001). However, nominal defendants, those “against whom no real relief
is sought,” need not join in the petition. Pecherski v. General Motors Corp., 636 F.2d
1156, 1161 (8th Cir. 1981).
It is undisputed that ATU, the parent union, did not timely join in the removal
petition. The district court determined that ATU was a nominal party and therefore
denied Thorn’s motion to remand. Thorn argues that ATU was not a nominal party
because international unions are often held liable under agency principles for the
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misconduct of their local chapters, because ATU’s by-laws give it power to discipline
local officers, and because Thorn brought Local 1005’s alleged misconduct to the
attention of ATU’s president. However, all of the affirmative acts that Thorn alleges
were discriminatory were committed by Local 1005 and its officers and members.
ATU is not liable for those acts because Local 1005 was not acting as an agent of the
international. See Laughon v. Int’l Alliance of Theatrical & Stage Employees, 248
F.3d 931, 935 (9th Cir. 2001). As for ATU’s alleged failure to discipline its local
chapter, we have already noted that Local 1005 has no affirmative duty to remedy
discrimination by the employer. Likewise, an international union has no affirmative
duty to discipline a local for failing to remedy employer discrimination. Accordingly,
we agree with the district court that ATU was a nominal party for purposes of Thorn’s
motion to remand.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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