Labor & Employment Law Daily Laid-off firefighters need not show fair representation duty breach to bring Title VII claims
Tuesday, June 5, 2018

Laid-off firefighters need not show fair representation duty breach to bring Title VII claims

By Joy P. Waltemath, J.D.

Eleven minority firefighters who were laid off by the city of Detroit as part of a reduction in force, only one of whom clearly exhausted his administrative remedies under Title VII, failed to convince the Sixth Circuit that the single filing rule should apply to allow the remaining firefighters to piggyback on his timely filed charge—because his charge involved national origin discrimination, and the other firefighters’ claims were race-based. Even considering their claims against the city on the merits, the firefighters lacked either direct or circumstantial evidence other than an overheard statement (possibly involving multiple levels of hearsay) that the union (not the city) wanted to save white firefighters’ jobs. Nor did they have valid statistical evidence, which includes a heightened burden in a RIF, of race bias. However, the Sixth Circuit reversed the district court and adopted the reasoning of the Seventh and Ninth Circuits that the firefighters need not establish that their union, the Detroit Fire Fighters Association, breached its duty of fair representation for them to proceed with their Title VII claim against it (Peeples v. City of Detroit, Michigan, June 1, 2018, Donald, B.).

Layoffs. Just before the city of Detroit filed for bankruptcy in 2012, it asked its agencies to implement layoffs of over 2200 city employees. The fire department was to lay off 22 firefighters, chosen based on total city seniority (years of service for the city). The fire fighters here were not included in the layoffs under this approach, but the DFFA took the position that departmental seniority should apply instead—and the fire fighters were targeted for layoff on the departmental seniority list, which was implemented. The next day the DFFA filed a class action grievance that the layoffs violated the CBA. About a month later, DFFA changed its position and decided that city seniority should have applied after all, and after 80 days, the fire fighters were recalled to work. About six months later, the DFFA and the city settled, and the laid-off fire fighters received back pay, overtime, and other damages. In the firefighters’ resulting Title VII litigation against the city and the union, the district court granted summary judgment.

Administrative exhaustion. Although the appeals court agreed with the firefighters that failure to obtain a right to sue letter (which was the issue here; the firefighters had filed administrative charges) is a condition precedent, rather than a jurisdictional defect, which is subject to waiver, estoppel, and equitable tolling, the firefighters failed to make any of those arguments before the district court.

Single filing rule. The next question was whether the single filing rule should apply to allow the remaining firefighters to piggyback on the timely filed charge, but while they all claimed they were laid off at the same time because of either race or national origin discrimination, the one timely filed charge alleged national origin discrimination, while the remaining plaintiffs alleged race discrimination. The firefighters cited no case law, nor did they argue, that discrimination claims for national origin are “substantially similar” to the racial discrimination claims of a different group. Since there was no case law to support the application of the single filing rule between the two distinct groups, the remaining firefighters were unable to piggyback on the timely filed charge.

No direct evidence of race bias. As the district court had nonetheless considered the merits of the firefighters’ race discrimination claims, so did the Sixth Circuit. The district court had found that the only evidence offered to demonstrate that race played a role in the layoffs involved multiple levels of inadmissible hearsay, and even if admissible, required an unpermitted inference. On appeal, the firefighters asserted that they had direct evidence—one employee’s testimony of an overheard statement that the union wanted to “save” the white firefighters and submitted the revised layoff list that included them to that end. Whether or not the statement was admissible and demonstrated any discriminatory intent, the appeals court could not find it was “direct evidence” of discriminatory motive by the city, because it suggested only that discriminatory intent motivated the actions of the union.

Statistical evidence insufficient. Nor was the appeals court impressed with the firefighters’ statistical evidence, which was a table that compared the proposed and actual layoffs by racial makeup. As compared to the city seniority list, the DFFA departmental seniority list shifted from having 16 to three layoffs of white firefighters, and 10 to 20 layoffs of black firefighters. By percentage, white layoffs dropped from 60% to 13%, and black layoffs jumped from 37% to 77.7%.

The evidence in this form had not been provided to the district court, however; moreover, the firefighters provided essentially no analysis regarding the statistical significance of the disparities between the two layoff lists, including eliminating the obvious explanation for the disparity—seniority—or addressing the small sample size, or the impact of the RIF in all areas, including demotions, reductions in overtime, and the rescission of promotions. Nor did they provide any legal argument that their statistics were sufficient under Sixth Circuit precedent, and the firefighters’ discrimination claims against the city failed on appeal.

No need to prove fair representation duty breach for Title VII claim. Finally, the Sixth Circuit reviewed the state of the law on whether (as the district court found), in order to bring a Title VII claim against a union, a breach of the union’s fair representation duty must also be shown. As the EEOC, as amicus, noted, the doctrine of the duty of fair representation is one that complements Title VII protections. The doctrine protects union members specifically, while Title VII protects all employees, including union members. It does not follow that union members should only have protection under a strict combination of the two, reasoned the court.

The Seventh Circuit had repudiated its precedent that required a fair representation breach in 2014 and held that establishing a Title VII claim did not require showing a violation of the duty of fair representation. A claim against a labor organization under Title VII § 2000e-2, as here, does not require a showing “that either the employer or the union violated any state statute or contract.” The Ninth Circuit expressly endorsed the Seventh Circuit’s reasoning, which the Sixth Circuit found persuasive, and which it adopted here. It reversed the district court’s grant of summary judgment in favor of the DFFA and also reversed the district court’s denial of compensatory and punitive damages, which the court improperly analyzed pursuant to a duty of fair representation claim. Both remedies are available under Title VII.

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