Powell v. Laborers Union 1271 , 426 F. App'x 615 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    June 7, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    GEORGE POWELL,
    Plaintiff-Appellant,
    v.                                                    No. 10-8087
    (D.C. No. 2:09-CV-00285-NDF)
    LABORERS UNION #1271,                                  (D. Wyo.)
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before MATHESON, McKAY, and EBEL, Circuit Judges.
    Plaintiff George Powell, an African-American, appeals from a district court
    order granting summary judgment to defendant Laborers Union #127 in this
    action alleging racially discriminatory employment-referral practices. Powell
    challenges the district court’s ruling on both substantive and procedural grounds.
    We affirm for the reasons that follow.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    I. THEORY OF THE CASE
    The gravamen of this case is that on several occasions the Union passed
    over Powell’s name on a hiring hall list it maintained under a collective
    bargaining agreement (CBA) with companies using temporary labor, thereby
    depriving him of employment opportunities. The Union explains it did so because
    it had received “no-rehire” letters from the employers in question directing the
    Union not to send Powell due to problems with his work. Powell insists the
    Union’s action was, rather, attributable to race discrimination.
    It is important to be clear about the nature of the alleged discrimination.
    Unions have an affirmative duty to help ensure employers’ compliance with
    non-discrimination directives and can thus be liable just for acquiescing in the
    discriminatory acts of an employer. Romero v. Union Pac. R.R., 
    615 F.2d 1303
    ,
    1310-11 (10th Cir. 1980). But Powell disavows this indirect theory of liability,
    which of course fails if discrimination by the employer cannot be proved. Rather,
    he has alleged direct discrimination on the part of the Union in its handling of the
    no-rehire letters, explaining that “[t]he issue was not whether the employers were
    discriminatory, but whether the [Union] removed the plaintiff [from his position
    in the hiring list] without questioning the no-rehire letters as to their legitimacy.”
    Aplt. Brief at 16 n.4. Consistent with that charge, he stresses what he sees as
    racially disparate treatment of no-rehire letters by the Union, comparing its
    -2-
    capitulation in his case to its vigorous opposition to a no-rehire letter sent by an
    employer regarding a white laborer.
    In light of Powell’s theory of the case, then, whether the employers’
    allegedly groundless no-rehire letters were racially motivated is not decisive; the
    thrust of his claim is that the Union failed to investigate and challenge the letters
    due to its own racial bias. Of course, the Union’s awareness of racial issues
    behind an employer’s no-rehire letter could still potentially bolster Powell’s case
    against the Union for its own bias on the direct discrimination theory he has
    pursued, as other arguments he advances on appeal reflect.
    II. DISTRICT COURT PROCEEDINGS
    Powell’s complaint asserted claims under the discriminatory-referral
    provision of Title VII, 28 U.S.C. § 2000e-2(c)(2), and 
    42 U.S.C. § 1981
    . 1 Months
    after the complaint was filed, the district court entered an initial pretrial order
    specifying August 30, 2010, as the cut-off date for both discovery and dispositive
    defense motions. On that date, the parties simultaneously filed two motions:
    (1) Powell moved to extend the time for discovery to allow him to take
    depositions of six witnesses to “learn what these witnesses may or may not say
    under oath at trial,” Aplt. App. at 78; and (2) the Union moved for summary
    1
    The district court did not distinguish between these two provisions in its
    analysis of the merits of the discrimination claims asserted thereunder, and
    Powell does not even mention § 1981 on appeal. Hence we also will not address
    the latter provision in any distinct manner here.
    -3-
    judgment on all claims. Shortly thereafter, the district court granted Powell an
    extension of discovery to obtain the requested depositions, but made it clear that
    all other deadlines and settings specified in the initial pretrial order remained in
    effect. Id. at 89-90. Powell responded to the motion for summary judgment,
    without any indication that resolution of the matter should be postponed until he
    obtained the depositions sought for trial preparation. He argued that he had both
    direct evidence of discrimination, involving racial comments by the Union’s
    business agent, James Hansen, and indirect evidence of discrimination, consisting
    of a prima facie case under the McDonnell Douglas framework 2 and facts showing
    that the Union’s racially neutral rationale for its action was pretextual.
    The district court granted the Union’s motion for summary judgment. The
    court held that the few isolated and fairly innocuous comments Powell cited as
    direct evidence of discrimination did not demonstrate a genuine issue of fact on
    the point and that Powell had failed to create a triable issue of pretext with
    respect to the Union’s legitimate justification for not referring him to employers
    that had sent no-rehire letters.
    2
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973).
    -4-
    III. ANALYSIS
    A. Procedural Objection to Summary Judgment
    Powell contends it was improper for the district court to grant the Union’s
    summary judgment motion before he had taken the depositions for which he had
    been allowed an extension of the discovery deadline. But he never raised this
    objection in the proceedings below, where he responded to the summary judgment
    motion on the merits with evidence already in his possession without seeking a
    postponement of the proceedings under Fed. R. Civ. P. 56(f) to gather and present
    additional evidence in opposition to the motion. Our case law makes it clear that
    the failure to comply with Rule 56(f) and provide the district court an opportunity
    to consider a purported need for further discovery precludes a party from
    objecting to the grant of summary judgment on this basis:
    Because [the plaintiff] failed to file an affidavit under
    Fed.R.Civ.P. 56(f) explaining “why facts precluding summary
    judgment cannot be presented,” which is the proper procedure by
    which to request further discovery prior to the court’s ruling on a
    summary judgment motion, he has waived the argument that the
    grant of summary judgment should be set aside for lack of sufficient
    discovery. Trask v. Franco, 
    446 F.3d 1036
    , 1042 (10th Cir. 2006)
    (citation omitted). Rule 56(f) states that “[i]f a party opposing the
    [summary judgment] motion shows by affidavit that, for specified
    reasons, it cannot present facts essential to justify its opposition,” the
    court may deny the motion, order a continuance for additional
    discovery to be undertaken, or issue any other order that is
    appropriate. But “[w]here a party opposing summary judgment ...
    fails to take advantage of the shelter provided by Rule 56(f) by filing
    an affidavit, there is no abuse of discretion in granting summary
    judgment if it is otherwise appropriate.” Pasternak v. Lear
    Petroleum Exploration, Inc., 
    790 F.2d 828
    , 832-33 (10th Cir. 1986).
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    Because [the plaintiff] did not file an affidavit, the district judge did
    not abuse his discretion in granting summary judgment based on the
    record before him.
    Campfield v. State Farm Mut. Auto Ins. Co., 
    532 F.3d 1111
    , 1124-25 (10th Cir.
    2008). And while a party’s pro se status would not excuse such an omission, see
    Abdulhaseeb v. Calbone, 
    600 F.3d 1301
    , 1310 (10th Cir.), cert. denied, 
    131 S. Ct. 469
     (2010), it is all the more appropriate to enforce our rule here, as Powell had
    counsel to assess the need for and value of the additional discovery in question.
    B. Substantive Challenge to Summary Judgment
    On appeal, Powell contends he submitted sufficient evidence of pretext to
    undercut the Union’s racially neutral explanation for not referring him to work
    with the employers who had submitted no-rehire letters. 3 Before discussing the
    substance of this evidence, we need to address a dispute over the formal adequacy
    of a particular item. Powell relies primarily on two sources for his version of the
    relevant facts: his affidavit and the deposition of a co-worker, Rod Pafford. The
    Union points out that the affidavit is not signed or notarized, and insists it should
    not be considered. But the Union did not make this objection below, when the
    3
    Powell has re-framed the presentation of his evidence somewhat, no longer
    sharply distinguishing between direct evidence of Union racial animus and
    indirect evidence under the McDonnell Douglas framework. He now argues all of
    his evidence as supporting pretext within the latter framework. As this change in
    approach does not alter significantly our dispositive analysis or affect the result,
    we need not worry over its strict propriety.
    -6-
    obvious technical oversight could have been corrected, 4 nor did the district court
    exclude the affidavit on this basis. We therefore consider it with the other
    evidence bearing on pretext. See McBeth v. Himes, 
    598 F.3d 708
    , 725 n.7
    (10th Cir. 2010). Of course, we need consider only averments that are themselves
    admissible; those based on hearsay, for example, are not properly within our
    purview. See Johnson v. Weld County, 
    594 F.3d 1202
    , 1209-10 (10th Cir. 2010).
    In that respect, we will not penalize the Union for failing to advance hearsay
    objections to specific statements in the affidavit, as the district court’s quick
    ruling on the motion for summary judgment, in which it specifically allowed for
    “neither oral argument nor a reply brief,” App. at 165, did not afford the Union an
    opportunity to review the affidavit and develop such particularized objections.
    See generally Hopkins v. Okla. Pub. Emps. Ret. Sys., 
    150 F.3d 1155
    , 1161 n.5
    (10th Cir. 1998).
    The district court held that Powell had made out a prima facie case of
    discrimination, which in the present context consisted of showing: “(1) [he] was
    a member of a group protected by Title VII; (2) [he] was qualified and requested
    referral for a job for which the union was referring applicants; (3) despite [his]
    4
    Indeed, Powell submitted a signed and notarized version after judgment,
    but the district court refused to admit it into the record. Without appealing that
    post-judgment ruling, Powell filed a motion in this court to supplement the
    appellate record with the revised affidavit. Because, as explained above, we
    consider the original affidavit, we deny the motion to supplement as moot.
    -7-
    qualifications, [he] was not referred; and (4) after [his] nonreferral, the union
    continued to refer applicants with [his] qualifications for available positions.”
    Mills v. Int’l Bhd. of Teamsters, 
    634 F.2d 282
    , 285 (5th Cir. 1981); see also
    Fischer v. Forestwood Co., 
    525 F.3d 972
    , 982-83 (10th Cir. 2008) (setting out
    substantially similar prima facie case in ordinary failure-to-hire context). That
    shifted to the Union the burden of articulating a legitimate, non-discriminatory
    justification for its actions. Johnson, 
    594 F.3d at 1211
    .
    The Union articulated and substantiated a justification for not referring
    Powell for work with P.S. Cook, L.L.C., Gregory Piping Systems Inc., and
    Western Refractory Construction, Inc.: all had sent no-rehire letters requesting
    that he not be referred to their work sites due to problems associated with work
    performance, attendance, tardiness, and insubordination. Aplt. App. at 52-53; 67;
    72. Under the CBA, each employer is the judge of a Union member’s
    qualification for work, id. at 51-52, and these letters regarding Powell left him
    ineligible for work with the complaining companies, id. at 53. The Union’s
    Business Manager, James Hansen, noted how unusual Powell’s situation was, in
    that it was uncommon for a worker to have even one such letter in his file. Id. at
    54. The combination of the CBA and the no-rehire letters established a
    legitimate, racially neutral basis for the Union’s actions. That shifted the burden
    back to Powell to show that the Union’s stated justification was merely a pretext
    for unlawful discrimination. Johnson, 
    594 F.3d at 1211
    . And on this critical
    -8-
    point, the district court held that Powell failed to demonstrate a triable issue of
    fact.
    Powell attempts to do so through essentially three different means. At
    certain points, he appears to take issue with the employers’ criticism of his work
    performance. For example, he insists the no-rehire letter from P.S. Cook, which
    complained that he had worked only seven hours in a three-day period of
    twelve-hour shifts, overstated the nonattendance issue, in that it had only been a
    two-day period, some other laborers worked only eight-hour shifts in that period,
    and he had asked the foreman for the time off to attend to personal matters. This
    line of argument is a non-starter; it is a commonplace in employment law that the
    employer’s perception of employee performance controls the pretext inquiry and
    can justify termination even if mistaken, see, e, g, Kendrick v. Penske Transp.
    Servs., 
    220 F.3d 1220
    , 1231 (10th Cir. 2000) (citing cases), and here that
    principle is uniquely bolstered by the CBA provision requiring the Union to defer
    to the employers’ independent judgment. Even if the no-rehire letters were
    groundless (which was not shown here), Powell offered no evidence to prove the
    Union would have known that. On the contrary, the three separate no-rehire
    letters would have been mutually corroborative as to the unsatisfactory nature of
    his work performance.
    Second, Powell argues that Union efforts to contest a no-rehire request
    received for a white member, John Fulk, demonstrate that its capitulation in his
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    case was racially biased. 5 But it is undisputed that Union business manager
    Hansen did contact the company that sent Powell’s first no-rehire letter, to
    attempt to persuade it to allow Powell to return to work once he addressed the
    issues that led to the letter. See Aplt. App. at 53-54. While this proved
    unsuccessful due (in the employer’s view) to Powell’s refusal to take
    responsibility for his work issues, id. at 54, it is the Union’s effort and not the
    employer’s response that is material here. And though it does not appear that
    Hansen opposed the two subsequent no-rehire letters for Powell, there is also no
    evidence that the Union opposed successive no-rehire letters for Fulk or anyone
    else, leaving Powell without the similarly-situated comparator necessary to make
    out a case for disparate treatment by the Union. See McGowan v. City of Eufala,
    
    472 F.3d 736
    , 745 (10th Cir. 2006) (noting that to show discrimination through
    comparison with other employee, plaintiff “must establish [he] was similarly
    situated to [the comparator] in all relevant respects,” including work history).
    Finally, Powell argues that racial comments by some employers for whom
    he had worked (including Larry Gregory of Gregory Piping Systems), and
    Hansen’s reaction to those comments, raised a triable issue of discriminatory
    5
    The only evidence of this is a conclusory paragraph in Powell’s affidavit,
    which states that Fulk had at some unspecified time been charged with driving
    under the influence while smoking marijuana, but does not say whether the
    charges were enforced or dismissed, or what Fulk’s response to the incident had
    been (nor does it indicate Powell’s direct personal knowledge of the matter).
    Aplt. App. at 110.
    -10-
    animus behind the Union’s actions. The district court discounted the employers’
    comments as hearsay and held that Hansen’s own statements were too isolated
    and innocuous to demonstrate a racial bias.
    Insofar as the employers’ comments were reported in Powell’s affidavit, the
    district court was correct to treat them as hearsay, in that Powell was repeating
    what he had heard second-hand from co-worker Rod Pafford, who witnessed the
    comments being made. But Pafford also directly testified to the matter in his
    deposition, so a hearsay problem would exist only if the comments were offered
    for the truth of the matter asserted therein. Since the comments were relevant for
    the racial attitudes they revealed and not for the truth of any factual assertions,
    they were not hearsay. See, e.g., Talley v. Bravo Pitino Rest., Ltd., 
    61 F.3d 1241
    ,
    1249 (6th Cir. 1995), overruled on other grounds as recognized in Bartlett v.
    Gates, 09-3823, 
    2010 WL 4723786
     at *3 (6th Cir. Nov. 15, 2010) (unpub.);
    Hunter v. Allis-Chalmers Corp., 
    797 F.2d 1417
    , 1423 (7th Cir. 1986), abrogated
    on other grounds as recognized in Malhotra v. Cotter & Co., 
    885 F.2d 1305
    , 1312
    (7th Cir. 1989).
    They were, however, of very limited significance, given that it is Hansen’s
    alleged racial bias we are concerned with, not that of the third parties. Two of the
    instances were remote in time, occurring some three years before the events
    giving rise to this suit. And in both of those cases, where an employer had used a
    racial slur or stereotype in referring to Powell’s laziness (itself a legitimate
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    concern for an employer) and Pafford relayed the remarks to Hansen, Hansen did
    not adopt or approve the slur but told Pafford that Powell’s issues were not
    Pafford’s concern (there is no evidence that Powell himself ever complained to
    Hansen about the incidents). See Aplt. App. at 132-36. 6
    The third incident, involving Gregory Piping Systems, is more directly
    related to the operative events in this case, but it is the least indicative of racial
    animus. Larry Gregory removed Powell from a work site and sent a no-rehire
    letter to the Union after Powell had left a $40,000 Bobcat vehicle running in the
    field and, later, was not working where Gregory felt he was supposed to be
    working. See Aplt. App. at 113-14, 137-40. None of that reflects racial bias
    against Powell (who also stated that Gregory had requested him for work many
    times, id. at 114). Even Pafford, who was at the site, conceded that leaving
    equipment running is “not the best thing to do,” id. at 138, and that Gregory was
    “kind of right” about Powell not being where he was supposed to be “because we
    couldn’t find [him],” id. at 139. Gregory did, however, characterize these
    legitimate criticisms as “acting black on me.” Id. at 138. Because the criticisms
    6
    As to one of the incidents, Powell’s affidavit adds that Hansen told Pafford
    “that he wasn’t going to jeopardize the contract with [the employer] over some
    minor ‘racial shit.’” Aplt. App. at 111. This is patent hearsay, purportedly
    spoken not to Powell but related second-hand to Powell by Pafford. Similarly
    inadmissible is Powell’s statement that the foreman on the P.S. Cook job told
    Powell that Hansen had asked him to write a letter to “keep [Powell] out” of
    employment with P.S. Cook, id. at 113.
    -12-
    were factually grounded, Pafford did not initially report the incident, but he did
    eventually tell Hansen about it. See id. at 139-40. According to Pafford, Hansen
    told him to just “worry about yourself” and “quit hanging out with [Powell],” who
    “was not doing good, going to get in trouble or something to that effect.” Id.
    While Gregory’s gratuitous comment about “acting black” was inappropriate, he
    had legitimate grounds for the no-rehire request honored by Hansen in accordance
    with the CBA. In sum, none of the incidents involving racially tinged comments
    by employers were sufficient to raise a triable issue of bias by the Union in its
    compliance with the no-rehire letters underlying this case.
    Two last, underdeveloped arguments by Powell may be dismissed with little
    comment. In his statement of facts, Powell insinuates, with no supporting citation
    to the record, that the no-rehire letters “seemed to be prepared, not by the
    employers, but by the union, since [Powell] and his counsel found draft letters in
    his union file after obtaining discovery,” Aplt. Br. at 11, and then only returns to
    the point near the end of his brief to ask rhetorical questions: “Why were there
    drafts of the no-rehire letters found in the personnel file of the plaintiff? What
    inference is to be derived from this circumstance? Did the [Union] prepare the
    letters for use by the employers?” Id. at 23-24. This is simply not adequate
    appellate argument, either factually or legally, and we decline to pursue the
    matter. See, e.g., Murrell v. Shalala, 
    43 F.3d 1388
    , 1389 n.2 (10th Cir. 1994);
    Brownlee v. Lear Siegler Mgmt. Servs. Corp., 
    15 F.3d 976
    , 977 (10th Cir. 1994).
    -13-
    Similarly, Powell’s passing criticism of the Union for its delay in telling him
    about the no-rehire letters, with no legal authority or developed argument to
    demonstrate what this has to do with his allegation of racial discrimination, is
    insufficient to require further discussion.
    The judgment of the district court is AFFIRMED. Appellant’s motion to
    supplement the record is DENIED as moot.
    Entered for the Court
    David M. Ebel
    Circuit Judge
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