Bobby Bailey Jr. v. U.S.F. Holland, Inc. ( 2020 )

09/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 3, 2019 Session
BOBBY BAILEY JR., ET AL. v. U.S.F. HOLLAND, INC., ET AL.
Appeal from the Circuit Court for Davidson County
No. 13C5077 Joseph P. Binkley, Jr., Judge
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No. M2018-01674-COA-R3-CV
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This suit was brought under the Tennessee Human Rights Act by two African-American
employees against their employer and their union to recover for alleged discrimination that
created a hostile work environment. At issue in this appeal is the grant of summary
judgment to the union on the basis that it did not cause or attempt to cause the employer to
discriminate. Upon our de novo review, we conclude that the evidence presented at the
summary judgment stage negated an essential element of the Plaintiffs’ claim and thus
summary judgment was warranted. Judgment affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J.,1 delivered the opinion of the court, in which W. NEAL
MCBRAYER, J., joined. RICHARD H. DINKINS, J., not participating.
Ann Buntin Steiner, Nashville, Tennessee, for the appellants, Bobby Bailey, Jr., and Robert
O. Smith.
Samuel Morris and Timothy Taylor, Memphis, Tennessee, for the appellee, Teamsters
Local Union No. 480.
Rodrick Darnell James Holmes, Memphis, Tennessee, for U.S.F. Holland, Inc. (not
participating).
1
This case was reassigned to the authoring judge.
OPINION
Background
Plaintiffs, Bobby Bailey, Jr., and Robert O. Smith, are African-American employees
of U.S.F. Holland, Inc. (“U.S.F. Holland”), a Michigan-based trucking company with a
terminal in Nashville, Tennessee. Both Mr. Bailey and Mr. Smith have worked for U.S.F.
Holland as dock workers and truck drivers, Mr. Bailey since 1990 and Mr. Smith since
1997. Both men are also members of Teamsters Local Union No. 480 (“the Union”), which
represents some of U.S.F. Holland’s employees. U.S.F. Holland and the Union are parties
to a collective bargaining agreement called the National Master Freight Agreement and the
Southern Region Area Supplemental Agreement. This agreement was negotiated by the
International Brotherhood of Teamsters and Trucking Management Incorporated, a group
of trucking companies that includes U.S.F. Holland.
In 2007, Mr. Bailey and Mr. Smith successfully sued U.S.F. Holland for
maintaining a hostile work environment due to racially discriminatory actions of fellow
employees. Despite the outcome in that suit and sensitivity training provided by U.S.F.
Holland, the harassment by certain employees continued. When they were called
inappropriate names and whistled at, as if to call a dog, both Mr. Bailey and Mr. Smith
reported the incidents to their supervisors. On May 24, 2012, Mr. Bailey complained to
his supervisor that another employee, Mr. Delton Hassell, had been whistling at him in a
discriminatory manner. The supervisor and another manager had a meeting with Mr.
Hassell, during which Mr. Hassell used a racial slur in reference to Mr. Bailey. Mr.
Hassell’s employment was immediately terminated on the basis of his “outrageous
conduct,” as memorialized in a discharge letter. Mr. Hassell is a member of the Union,
which filed a grievance on Mr. Hassell’s behalf, pursuant to the collective bargaining
agreement, protesting his termination. As a result of the grievance procedure, which was
not resolved at the local level and thus proceeded to the Southern Regional Multistate
Grievance Committee, Mr. Hassell was reinstated to his employment, without back pay.
Mr. Hassell was terminated again for comments he made in November 2013. Once again,
the Union initiated the grievance procedure on Mr. Hassell’s behalf, and he ultimately was
reinstated.
While the Union was contesting Mr. Hassell’s second termination, Plaintiffs filed
this suit in the Circuit Court for Davidson County (“the Trial Court”) on December 12,
2013, against U.S.F. Holland and the Union under the Tennessee Human Rights Act,
Tennessee Code Annotated section 4-21-101, et seq. The Plaintiffs alleged, inter alia, that
“[e]ven after a federal district court found [U.S.F. Holland] had allowed a hostile work
environment to exist, [U.S.F. Holland] continued to allow this racially hostile environment
to exist.” With respect to the Union, the complaint, as amended, alleged:
2
15. On May 6, 2012, the Teamsters Local Union 480 filed a grievance on
behalf of Hassell protesting his discharge. The Teamsters knew of the history
of the Defendant engaging in discrimination and knew Hassell was
investigated for engaging in racial harassment and was fired for his racial
comments in the meeting with Knight and West.
***
24. In November 2013, Plaintiffs were summoned to a local hotel for
questioning by an attorney. Plaintiffs responded to all questions. Defendant
then re-fired Hassell.
25. It is believed the Defendant Union filed a grievance to once again
reinstate Hassell.
***
28. Plaintiffs, Bailey and Smith, would state that [U.S.F. Holland] and the
Local Union created a hostile work environment for the Plaintiffs based upon
their race in violation of the Tennessee Human Rights Act. The Local Union
by filing a grievance and pursuing the grievance on behalf of an employee
fired for racial discrimination and/or acts, caused or attempted to cause the
employer to violate the THRA.
The Local Union by filing the grievance and pursuing the grievance
on behalf of an employee fired for racial discrimination and/or acts,
discriminated against the Plaintiffs and caused the employer to discriminate
against Plaintiffs.
29. Plaintiffs would state the Defendants engaged in retaliation in violation
of the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq.
and § 4-21-301, et seq.
In due course, U.S.F. Holland and the Union separately moved for summary
judgment. Because it was unclear from the complaint precisely what type of discrimination
claim the Plaintiffs wished to make, the Union addressed every conceivable claim to
demonstrate that summary judgment was warranted. The Union’s motion asserted that
there was no genuine dispute of material fact that (1) the Union did not breach its duty of
fair representation, (2) that it did not engage in intentional discrimination against the
Plaintiffs directly or by causing or attempting to cause U.S.F. Holland to do so, and (3) that
it did not retaliate against the Plaintiffs. Following a hearing, the Trial Court granted U.S.F.
Holland’s motion in part and denied it in part; by agreed order memorializing the settlement
of Plaintiffs’ claims against their employer, U.S.F. Holland later was dismissed from the
suit and is not a party to this appeal. The Trial Court granted the Union’s motion for
summary judgment, holding:
3
So the Plaintiffs’ position is that because the Union took [Hassell’s]
grievance, that caused or attempted to cause U.S.F. Holland to violate the
chapter, which means to discriminate against the Plaintiffs. . . .
I am of the opinion that there are no facts in this record that will allow
me to conclude that the Union intentionally caused or attempted to cause the
employer to violate this chapter by taking the grievance -- grievances of
[Hassell] because the Union takes all grievances. If they take all grievances,
how can I conclude in any way that there is any inference here that the Union
in this case, in the Bailey and Smith cases, intentionally attempted to cause
the employer to discriminate by taking his grievance. I’m sorry, I just don’t
see that being a possibility or even a probability.
Plaintiffs timely appealed to this Court the Trial Court’s grant of summary
judgment to the Union.
Discussion
On appeal, Plaintiffs present the following issues for review, which we quote
verbatim:
1. The Trial Court erred in finding the Union does not violate the Tennessee
Human Rights Act by filing a grievance for an employee fired for racial
discrimination.
a. There is no legal obligation for the Union to pursue all grievances.
2. Limiting evidence at the grievance hearings to events which occurred within
a six month period from the date of termination, and only for events for which
warning letters had been issued, conflicts with hostile work environment case
law.
3. The Union Job Steward instigated or actively supported discriminatory acts
by presenting a false statement in support of the racial harasser’s first
grievance.
A party is entitled to summary judgment only if the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits…show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. In Rye v. Women’s Care Ctr. of Memphis,
MPLLC, our Supreme Court adopted the following standard when considering a motion
for summary judgment filed by the party who does not bear the burden of proof at trial, as
is the Union in this case:
[I]n Tennessee, as in the federal system, when the moving party does not bear
the burden of proof at trial, the moving party may satisfy its burden of
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production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense. . . . “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set forth
specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. . . . [S]ummary judgment
should be granted if the nonmoving party’s evidence at the summary
judgment stage is insufficient to establish the existence of a genuine issue of
material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. . . .
477 S.W.3d 235, 264-65 (Tenn. 2015) (emphasis in original), cert. denied, 136 S. Ct. 2452,
195 L. Ed. 2d 265 (2016). “Whether the nonmoving party is a plaintiff or a defendant—
and whether or not the nonmoving party bears the burden of proof at trial on the challenged
claim or defense—at the summary judgment stage, ‘[t]he nonmoving party must
demonstrate the existence of specific facts in the record which could lead a rational trier of
fact to find in favor of the nonmoving party.’” TWB Architects, Inc. v. The Braxton, LLC,
578 S.W.3d 879, 889 (Tenn. 2019) (quoting Rye, 477 S.W.3d at 265).
This court reviews a trial court’s ruling on a motion for summary judgment de novo
with no presumption of correctness, as the resolution of the motion is a matter of law. Rye,
477 S.W.3d at 250 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Abshure v.
Methodist Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010)). We view the
evidence in favor of the non-moving party by resolving all reasonable inferences in its
favor and discarding all countervailing evidence. Stovall v. Clarke, 113 S.W.3d 715, 721
(Tenn. 2003); Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).
The Tennessee Human Rights Act was passed to prohibit discrimination in a manner
consistent with the Federal Civil Rights Acts. Tenn. Code Ann. § 4-21-101(a)(1). Chapter
21 of Title 4 of the Tennessee Code embodies the legislative intent to, inter alia, prohibit
discrimination on the basis of race by employers and labor organizations and to provide a
remedy for such discrimination. Tenn. Code Ann. § 4-21-101. Plaintiffs contend that, by
filing the two grievances on behalf of the terminated employee, the Union “caused or
attempted to cause the Employer to violate the THRA by creating a hostile work
environment” and thereby violated Tennessee Code Annotated section 4-21-402(3). That
section is specific to labor organizations such as the Union and states:
It is a discriminatory practice for a labor organization to:
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(1) Exclude or expel from membership, or otherwise to discriminate against a
member or applicant for membership because of race, creed, color, religion,
sex, age or national origin;
(2) Limit, segregate, or classify membership or application for membership or to
classify or fail or refuse to refer for employment on the basis of race, creed,
color, religion, sex, age or national origin, in a manner that would deprive or
tend to deprive any person of employment opportunities, or that would limit
employment opportunities or to otherwise adversely affect the status of an
employee or of an applicant for employment because of race, creed, color,
religion, sex, age or national origin; or
(3) Cause or attempt to cause an employer to violate this chapter.
Tenn. Code Ann. § 4-21-402 (2015). There are no Tennessee cases addressing subsection
(3). The language in the federal counterpart is similar, and in Braxton v. UAW Int’l, the
district court stated:
A union may be liable for a hostile work environment if the plaintiff could
show (1) he was subjected to a hostile work environment by his employer . .
. ; (2) he requested the union take action; and (3) the union ignored his request
for action. See, e.g., Slater v. Susquehanna Cnty., 613 F. Supp. 2d 653, 664
(M.D. Pa. 2009). Moreover, a union may be liable under Title VII if the
union causes or attempts to cause an employer to discriminate, or if it
prevents an employer from fulfilling its statutory responsibilities. Carter v.
Chrysler Corp., 173 F.3d 693, 703 (8th Cir. 1999). In other words, a union
may only be liable if it instigates an employer’s discrimination or actively
supports the employer’s discriminatory acts. Eliserio v. United Steelworkers
of America Local 310, 398 F.3d 1071, 1076-77 (8th Cir. 2005).
No. 14-CV-12063, 2016 WL 28825, at *10 (E.D. Mich. Jan. 4, 2016). In this case,
Plaintiffs would need to establish that the Union caused or attempted to cause U.S.F.
Holland to discriminate by instigating or actively supporting the creation of a hostile work
environment at U.S.F. Holland.
A hostile work environment occurs when “conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.” Campbell v. Fla. Steel Corp.,
919 S.W.2d 26, 31 (Tenn. 1996) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
65 (1986)). In Frye v. St. Thomas Health Servs., this Court explained that to establish
a hostile work environment claim, a plaintiff must show:
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(1) she belongs to a protected group; (2) she has been subject to unwelcome
harassment; (3) the harassment must have been based on a protected
characteristic of the employee, such as age; (4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment; and
(5) the employer is responsible for such an environment under either a theory
of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002). A hostile work environment claim is
established upon proof of conduct that is “sufficiently severe or pervasive ‘to
alter the conditions of [the victim’s] employment and create an abusive
working environment.’” Meritor Sav. Bank, FSB, 477 U.S. at 67, 106 S. Ct.
2399 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.
1982)).
227 S.W.3d 595, 602 (Tenn. Ct. App. 2007). Despite Plaintiffs’ assertions in their reply
brief that the Union should bear the burden of proof on this claim, section 4-21-311(e)
places that burden squarely on Plaintiffs; it provides:
In any civil cause of action alleging a violation of this chapter or of § 8-50-
103, the plaintiff shall have the burden of establishing a prima facie case of
intentional discrimination or retaliation. If the plaintiff satisfies this burden,
the burden shall then be on the defendant to produce evidence that one (1) or
more legitimate, nondiscriminatory reasons existed for the challenged
employment action. The burden on the defendant is one of production and
not persuasion. If the defendant produces such evidence, the presumption of
discrimination or retaliation raised by the plaintiff’s prima facie case is
rebutted, and the burden shifts to the plaintiff to demonstrate that the reason
given by the defendant was not the true reason for the challenged
employment action and that the stated reason was a pretext for illegal
discrimination or retaliation. The foregoing allocations of burdens of proof
shall apply at all stages of the proceedings, including motions for summary
judgment. The plaintiff at all times retains the burden of persuading the trier
of fact that the plaintiff has been the victim of intentional discrimination or
retaliation.
Tenn. Code Ann. § 4-21-311(e) (2015).
With the foregoing framework in mind, there is no real dispute that the Plaintiffs
were part of a protected class due to their race, that they were subjected to unwelcome
harassment, that they were harassed because of their race, and that the harassment was
severe enough to constitute a discriminatorily abusive work environment. The fifth
element is in play in this case: whether the Union’s actions in turn caused the employer to
discriminate by having the offending employee reinstated.
7
We turn to the materials filed in support of the Union’s motion. The Union filed a
Statement of Undisputed Facts, pursuant to Tennessee Rule of Civil Procedure 56.03,
which was supported by the depositions of Howard Boykin, Secretary of Teamsters Local
480; Douglas Morris, terminal manager of Nashville U.S.F. Holland facility; Stephen
Blubaugh, U.S.F. Holland’s Vice President of Human Resources; Plaintiff Bobby Bailey,
Jr.; Plaintiff Robert Smith; Ricky Burton, union steward; and Delton Hassell, the employee
who was terminated.
The evidence put forth by the Union shows that terminated employees may go to
the Union to file a grievance to protest his or her discharge; that the Union had a practice
of appealing the termination of a union employee who desired to do so through the
procedure established in the collective bargaining agreement; that Mr. Hassell filed
grievances over his two terminations; and that the grievances made their way through the
process set forth in the collective bargaining agreement and were resolved by a committee
of neutral employer and union representatives, resulting in the employee’s reinstatement.
These facts demonstrate that the Union’s actions with respect to grievance proceedings
were the same; the race of the disciplined employee (or the victim) and the employee’s
action that resulted in discipline had no bearing on the decision of whether or not to pursue
a grievance. This proof negated the core element of section 4-21-402(3) by showing no
proof of intentional discrimination on the part of the Union against the Plaintiffs directly
or through the employer; these materials shifted the burden to the Plaintiffs to introduce
evidence that would establish a genuine issue of material fact.
Plaintiffs responded to the motion, attempting to illustrate that several statements
were disputed. They supported their position by filing a host of exhibits, which included
affidavits and depositions of each plaintiff; depositions of various employees, union and
U.S.F. Holland officials, as well as documents from the federal lawsuit and the grievance
proceedings. Plaintiffs also filed a statement of additional material facts, to which the
Union subsequently responded.
The uncontested facts show that in May 2012 Mr. Bailey made a complaint to U.S.F.
Holland staff that Mr. Hassell whistled at him in a taunting manner; that Mr. Hassell was
called in for a meeting with Mr. West and Mr. Knight to discuss his actions, and requested
that Mr. Burton, the Union steward, accompany him to the meeting; that, in the course of
the meeting, Mr. Hassell made reference to Mr. Bailey as a “black bastard”; that Mr. Burton
had not yet arrived at the meeting when Mr. Hassell made the remark; that Mr. Burton later
made a written statement in which he said “Mr. Hassell did not make any racial remarks
towards Mr. Bailey nor towards Mr. West or anyone else”; that Mr. Hassell was terminated
for making a derogatory remark in violation of U.S.F. Holland’s harassment policy; that
the Union represented Mr. Hassell through the proceeding in which Mr. Hassell challenged
his termination; and that Mr. Bailey requested from the Union an explanation for Mr.
Hassell’s reinstatement, and was advised that the reasons for Mr. Hassell’s rehire were
8
explained in a letter U.S.F. Holland wrote to Mr. Bailey in response to a letter that Mr.
Bailey wrote to the U.S.F. Holland management team complaining of Mr. Hassell’s rehire.
The undisputed facts also show that the Union represented Mr. Hassell at grievance
hearings, which were decided before the neutral Joint Area Grievance Committee; these
proceedings resulted in his reinstatement. The Rules of Procedure for the grievance
process require that neither U.S.F. Holland, as the employer, nor the Union’s representative
can serve on a committee that would adjudicate Mr. Hassell’s grievance hearings.2
Therefore, Mr. Hassell’s reinstatement was a decision made by a third party, not the Union
or U.S.F. Holland.
The proof set forth by the Plaintiffs at the summary judgment stage does not
demonstrate that the Union engaged in racially discriminatory actions; to the contrary, the
undisputed proof indicates that the Union has a policy of representing all terminated union
members in the grievance process who wish to contest their terminations, regardless of that
employee’s race and regardless of the offense that resulted in their termination.
Though emphatic that they are pursuing a hostile work environment claim, Plaintiffs
also argue that section 402 “is violated by a union when it is aware of racial discrimination
against some of its members and fails to protect their interests.” This latter statement
evinces the Plaintiffs’ position the Union is violating its duty of fair representation by
taking Mr. Hassell’s termination through the grievance procedure despite the racist
behavior he exhibited. “[A] breach of the statutory duty of fair representation occurs only
when a union’s conduct toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” Wells v. Chrysler Grp. LLC, 559 Fed. Appx. 512, 514 n.
1 (6th Cir. 2014) (quoting Bowerman v. Int’l Union, United Auto., Aerospace and Agric.
Implement Workers of Am., Local No. 12, 646 F.3d 360, 368 (6th Cir. 2011)) (emphasis in
original). While unions certainly are permitted to exercise some discretion in which
grievance actions to pursue on behalf of their members, the undisputed facts in this case
establish that the Union has elected to pursue a grievance procedure for every terminated
union employee who requests it. By removing any discretion in deciding for which cases
it pursues grievance proceedings, the Union cannot be said to be acting in a way that is
arbitrary, discriminatory, or in bad faith. Just because Mr. Hassell’s actions were
reprehensible does not mean that he is not entitled to the protections (referred to as
“industrial due process” in the record) afforded to him by his union membership.
Moreover, the Union’s representation of Mr. Hassell through the grievance process did not,
ipso facto, result in his reinstatement. His return to the workforce was the result of a
decision by a neutral committee. If Plaintiffs wish to allege that the grievance process itself
2
The Rules of Procedure for Conduct of Grievance Proceedings by the Southern Region Joint Area
Grievance Committee states, in part pertinent to this issue: “No Union or Employer Representative may
serve in any capacity on a Southern Region Joint Area Committee or the Southern Region Joint Area
Review Committee in any hearing of a case involving their own Union or Company.”
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is laced with ineffective procedures that are resulting in the reinstatement of worker(s) who
harass and cause a hostile work environment, then they should have also sued that
organization and placed its operating procedures at issue as fostering an unreasonable,
abusive, or offensive work-related environment. That, however, is not what was alleged
in this lawsuit.
Although Plaintiffs argue that filing a grievance on behalf of an employee who was
terminated for admittedly racist actions somehow imputes a racist intent to the Union and
causes discrimination, we fail to see how a Union’s decision to pursue a grievance
proceeding for every terminated union employee wishing to contest her termination can be
construed as intentional racism. Moreover, it seems that such a claim would be better
brought under section 4-21-402(1), as it is difficult to discern an action on the part of the
Union that caused U.S.F. Holland to discriminate. The Union’s action in representing the
employee did not cause the employer, U.S.F. Holland, to violate the Tennessee Human
Rights Act within the meaning and purpose of the statute. We find this issue to be without
merit.
Plaintiffs present two other issues for review. They contend that because the Union
and U.S.F. Holland limit evidence at grievance hearings to events that occurred within a
six-month period prior to the termination, the limitation prevented the grievance
committees from hearing evidence of a hostile work environment occurring over a long
period of time.
The Rules of Procedure for Conduct of Grievance Proceedings provide in pertinent
part:
[N]o evidence will be heard in a case except the evidence pertaining to a
particular complaint before the committee, but evidence of offenses for
which warning letters have been given within six (6) months may be
introduced as pertinent to a particular case at the hearing before the Multi-
State Committee, other than discharge or suspension.
Additionally, the collective bargaining agreement includes the following provision:
ARTICLE 46. DISCHARGE OR SUSPENSION
Section 1.
The Employer shall not discharge, suspend or take any other disciplinary
action as respects any employee without just cause, but in respect to discharge,
suspension, or other disciplinary action shall give at least one (1) warning
notice of the complaint against such employee to the employee in writing by
certified mail and/or in person and a copy of same to the Union affected, by
certified mail; except that no warning notice need be given to an employee
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before he/she is discharged if the cause of such discharge is: dishonesty; using
or being under the influence of alcoholic beverages, narcotics, or drugs while
on duty; failure to submit to a sobriety/drug test, upon request, if the employee
appears to be under such influence; carrying or permitting the carrying of
drugs or narcotics on the employee’s person or equipment that is prohibited
by state or federal law, possession of alcoholic beverages, drugs or narcotics
on Company property or equipment, drinking alcoholic beverages, using
drugs or narcotics on Company property; a serious preventable accident while
on duty, the carrying of unauthorized passengers; the failure to report an
accident; willful damage or destruction of company property or equipment;
engaging in unprovoked physical violence while on Company property or on
duty; outrageous conduct as determined by the Grievance Committee, or
failure to comply with Article 35, Section 3 of the National Master Freight
Agreement.
The warning notices as herein provided shall not remain in effect for a period
of more than six (6) months from the date of said warning notice.
(Emphasis added). Mr. Hassell’s discharge letters, in both instances, state that Mr.
Hassell’s termination was the result of his “outrageous conduct and violation of Holland’s
Policy on Harassment….” Under the collective bargaining agreement, U.S.F. Holland was
not required to issue a warning notice to Mr. Hassell after he made the offensive comment,
as it constituted outrageous conduct. Thus, there was no need for a warning notice
pertaining to his racially-motivated comments to be placed in his employment file.
Further, neither was this an issue Plaintiffs articulated in their complaint or with a
cross motion for summary judgment, nor was it ruled upon by the Trial Court. The only
place Plaintiffs articulated these concerns was buried in its response to the Union’s motion
for summary judgment. Plaintiffs are, in effect, asking this Court to modify the rules
governing the procedures of an entity not before this Court. If Plaintiffs wish to allege that
the grievance process itself is laced with ineffective procedures that are resulting in the
reinstatement of worker(s) who harass and cause a hostile work environment, then
Plaintiffs should have raised that issue in their complaint. Despite amending their
Complaint, that is not what was alleged in this lawsuit. We therefore consider this issue to
be without merit.
The final issue Plaintiffs raise is whether “[t]he Union Job Steward instigated or
actively supported discriminatory acts by presenting a false statement in support of the
racial harasser’s first grievance.” Plaintiffs allege that, on three occasions, the Union
submitted to the grievance hearing committee a “false statement” made by Mr. Burton,
the union job steward who initially investigated the incident. In the statement, he denied
that Mr. Hassell made a racial slur towards Mr. Bailey during a meeting between him,
Mr. Hassell, and two representatives of U.S.F. Holland, Messrs. Knight and West. The
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statement also says that Mr. Hassell “denied these charges [of whistling at a coworker]
in a calm and professional manner” and referred to Mr. Bailey as “the man” and did not
make any racial remarks toward Mr. Bailey in Mr. Burton’s presence. However, the
parties agree that Mr. Burton admitted he did not hear all of the conversation and that the
meeting was already in progress when he got there. At bottom, Mr. Burton’s statement
paints Mr. Hassell in a light with which the Plaintiffs disagree, and they take issue with
the fact that the Union submitted the statement as an exhibit at the grievance hearings.3
Also presented as evidence during the grievance hearing was Mr. Hassell’s own
admission at an unemployment compensation hearing, corroborated by Messrs. Knight
and West, that he called Mr. Bailey a “black bastard.” With Mr. Hassell’s own
admission presented at the grievance hearings, and no citation to any proof by Plaintiffs
that the Committee actually saw or gave any weight to Mr. Burton’s statement, there is
no proof before us from which to conclude that Mr. Burton’s statement had any effect
on the outcome of the hearings which resulted in Mr. Hassell’s reinstatement.
Plaintiffs’ contentions in this regard are without merit.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the
Appellants, Bobby Bailey, Jr. and Robert O. Smith, and their surety, if any.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
3
It is not apparent from the pages of minutes from the grievance proceeding cited by Plaintiffs whether the
Burton statement was made an exhibit to that proceeding, but the testimony transcribed in those minutes
makes it abundantly clear that the Union representative communicated precisely what racial slur Mr. Hassell
used and did not base his argument in any way on the Burton statement.
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