The Fifth Circuit takes up the question of when it might constitute race discrimination (under 42 U.S.C. § 1981) for a union not to pursue a theory of race discrimination in a grievance proceeding. The Fifth Circuit affirms summary judgment of the local union and union representative, holding that it was not an "adverse action" in this case, but in the particular setting where the employee himself got to present a discrimination theory on his own behalf.
Wesley v. General Drivers, Warehousemen and Helpers Local 745, No. 11-10120 (5th Cir. Oct. 4, 2011): The employee, Wesley, lost his job at Yellow Transportation because he allegedly "had been caught by security surveillance cameras overstaying his break period while playing a pornographic video in the break room."
At his grievance hearing, Wesley unsuccessfully urged his local and union representative (named Taylor, also a defendant) to present a race-discrimination theory (i.e., "that a white employee had once played a pornographic video during work hours and had not been terminated"). The defendants raised but (apparently) did not press fully the race-discrimination theory to Wesley's satisfaction. Wesley, though, was allowed to represent himself at the proceeding and present addition al evidence of discrimination on his own behalf.
Affirming summary judgment in this case, the panel announces (with citation to a non-precedential opinion and a Sixth Circuit decision) the elements of a claim of racially-discriminatory breach of the duty of fair representation:
"First, he must show that he was subjected to an adverse union action. Second, he must show that he was treated less favorably by the union than employees of different races. Third, because this claim is brought under § 1981, he must prove that this differential treatment arose from purposeful racial discrimination."
The panel notes that although the Supreme Court long ago held (in Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)) that unions cannot refuse to process grievances because of race, that is not what is alleged here. The union did grieve his complaint.
"Here, There is no evidence that Wesley's complaints about his union representation are shared by any There union members. There is no evidence that Local 745 or Taylor has adopted a practice of ignoring race-related grievances of members. There is no evidence about any member's interaction with the union aside from Wesley's. Having failed to present any evidence in this regard, Wesley cannot rely on Goodman for relief."
The panel holds that the re was no adverse action here. "Wesley had several opportunities to speak in the hearing, during which he also raised examples of what he perceived to be unequal treatment of employees based on race. While Wesley may have preferred Taylor to address racial discrimination against Wesley more directly, it cannot be said that Taylor refused to raise the issue." And Wesley even admitted on the record at the hearing that "Local 745 properly represented [him] in defense of [his] case."
Thus, "Wesley's argument that he was subjected to adverse union action during the hearing has less force given his opportunity to put addition al evidence or argument before the Committee and his agreement that he was well represented by Local 745 during the hearing." And, in closing, Wesley "failed to show that he was treated less favorably by the union than employees of There races."