Opinion
Case No. 01-70645
September 16, 2003
OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on
I. INTRODUCTION
Plaintiff Dale Furby commenced this case in Macomb County Circuit Court, State of Michigan, on October 19, 2000, asserting whistleblower, retaliation, and disability discrimination claims against his employer, Defendant DaimlerChrysler Corporation. Defendant removed the case to this Court on February 16, 2001, citing Plaintiff's purported assertion of federal claims in his complaint.
Plaintiff also named three individual Defendants in his complaint, but the claims against these Defendants were dismissed for lack of prosecution.
By order dated March 27, 2002, the Court directed Defendant to show cause why the case should not be remanded to state court as improperly removed. As noted in this order, the various counts of Plaintiff s complaint appear to rest exclusively on Michigan law, with only passing references to federal law. In response, Defendant argued that Plaintiff's claims rest upon state and federal law alike, as Plaintiff has alleged that Defendant's unlawful retaliation was triggered by complaints to various state and federal agencies. On the basis of these purported federal claims of retaliation, which were at least arguably implicated by the allegations of the complaint, the Court vacated its show cause order and the case went forward.
On August 30, 2002, Defendant filed a motion for summary judgment. The central premise of this motion is that Plaintiff has failed to produce any evidence of a causal connection between any protected activity or disability and any adverse employment action he might have suffered. Plaintiff filed an extremely untimely response to this motion on February 5, 2003, and Defendant filed a reply in further support of its motion on February 18, 2003.
Having reviewed the parties' submissions and the record as a whole, the Court finds that oral argument would not assist in the resolution of Defendant's motion, and that it is appropriate to decide this motion "on the briefs." See Local Rule 7.1(e)(2), U.S. District Court, Eastern District of Michigan. For the reasons set forth below, the Court finds that Defendant's motion should be granted as to any federal claims arguably asserted in Plaintiff's complaint, albeit not on the grounds set forth in the motion. In addition, having resolved these federal claims, the Court will remand this action to state court for resolution of Plaintiff s remaining state-law claims.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts and allegations relevant to the present motion are derived largely from the complaint, Plaintiff's deposition, and various affidavits submitted by the parties. Plaintiff Dale Furby has been employed by Defendant DaimlerChrysler since 1972, and worked at Defendant's Sterling Stamping Plant at the time of the events giving rise to this action.
On July 21, 2000, Plaintiff and co-worker Robert Schaeffer were working as material handlers at the end of a press. As the two men worked together, they concluded that parts were coming out too quickly for them to handle. Rather than turning off the conveyor belt, as purportedly called for under standard operating procedure, Plaintiff instead elected to hit the emergency stop button, thereby immediately shutting down the press. Mr. Schaeffer apparently objected to this and expressed his displeasure to Plaintiff, and Defendant contends that Plaintiff responded by making threats of physical violence against Mr. Schaeffer. Defendant further asserts that John Rodick, a skilled trades supervisor, attempted to separate the two men and calm Plaintiff down. According to Defendant, Plaintiff then threatened Mr. Rodick with violence. Management and union officials were called, and Plaintiff was escorted from the work floor. Plaintiff has denied threatening either of his two co-workers.
On July 25, 2000, Plaintiff was suspended indefinitely for violating Defendant's Employee Standard of Conduct No. 14, which prohibits threatening, intimidating, coercing, harassing, retaliating or using abusive language to others. This suspension followed an investigation of the July 21 incident by Defendant's union relations supervisor at the Sterling plant, Alvin Davis. On August 7, 2000, following further discussions with union officials, Davis converted this suspension to a discharge.
In addition to investigating the matter on his own, Davis also addressed the July 21 incident with a joint union-management committee established to prevent workplace violence. The committee determined that Plaintiff's alleged threats of violence likely were due to an emotional condition, and that Plaintiff probably did not intend to act upon these threats. In accordance with the committee's judgment, Davis decided to rescind Plaintiff's discharge, and to instead place him on medical leave until a mental health professional certified that he did not pose a threat to himself or co-workers.
According to Defendant, Plaintiff initially resisted this resolution of the incident, but ultimately was persuaded by his union to accept this arrangement. Plaintiff secured the requisite medical clearance in December of 2000, and returned to work on December 18, 2000. So far as the record indicates, Plaintiff remains employed by Defendant.
Plaintiff commenced the present action in state court in October of 2000, alleging that he was terminated in July of that year in retaliation for reporting or complaining to various state and federal agencies regarding alleged unlawful activities and unsafe conditions at Defendant's Sterling Stamping Plant. Plaintiff testified at his deposition that he has lodged complaints under the Michigan Occupational Safety and Health Act ("MIOSHA") regarding unsafe working conditions, and also has submitted a written complaint to the National Labor Relations Board ("NLRB"). Moreover, in an affidavit submitted in opposition to Defendant's summary judgment motion, Plaintiff indicates that he has filed several complaints with the Michigan Department of Civil Rights and the federal Equal Employment Opportunity Commission ("EEOC"), and that he has commenced two previous lawsuits in which he asserted claims of race and disability discrimination.
As noted, Plaintiff's complaint on its face appears to advance only claims arising under Michigan law. Specifically, counts I and II assert retaliation claims under Michigan's Whistleblowers' Protection Act, Mich. Comp. Laws § 15.361 et seq., and the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq. In Count III, Plaintiff claims that he was terminated based on a perceived disability in violation of Michigan's Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101 et seq. Finally, in Count IV, Plaintiff contends that Defendant unlawfully maintained false information in his personnel file in violation of Michigan's Bullard-Plawecki Employee Right to Know Act, Mich. Comp. Laws § 423.501 et seq.
III. ANALYSIS
A. The Standards Governing Defendant's MotionThrough the present motion, Defendant seeks an award of summary judgment in its favor on Plaintiff's state and federal claims. Under the pertinent Federal Rule, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). For the reasons set forth below, the Court agrees that Defendant is entitled to summary judgment in its favor on Plaintiff's federal claims, albeit on grounds different from those identified in Defendant's motion.
B. Any Federal Claims Arguably Asserted in Plaintiff's Complaint Are Subject to Dismissal on Exhaustion and Related Grounds.
As noted at the outset, the Court issued a show cause order at an earlier stage of these proceedings, expressing its concern that the complaint did not truly assert federal claims that would warrant the removal of this case from state to federal court. Defendant responded by contending that at least some of Plaintiff s retaliation claims apparently arise under federal law, because they rest upon Plaintiff's alleged reports or complaints to federal agencies, including the EEOC, the NLRB, and the Occupational Safety and Health Administration ("OSHA"). Upon the present record, however, it is clear as a matter of law that any such federal claims advanced in Plaintiff's complaint cannot go forward, because Plaintiff has not taken the necessary steps to pursue such federal theories of recovery in court. Accordingly, these purported federal claims are subject to dismissal.
First, regarding Plaintiff's alleged complaints to the NLRB, § 8(a)(4) of the National Labor Relations Act ("NLRA") expressly prohibits employers from "discharg[ing] or otherwise discriminat[ing] against an employee because he has filed charges or given testimony under this subchapter." 29 U.S.C. § 158(a)(4). An employer that violates this provision commits an unfair labor practice, see 29 U.S.C. § 158(a), and the NLRB has exclusive jurisdiction over any such claimed violation.See San Diego Building Trades Council Millmen's Union, Local 2020 v. Gannon, 359 U.S. 236, 245, 79 S.Ct. 773, 780 (1959); Baldridge v. Kentucky-Ohio Transportation. Inc., 100 F.3d 956, 1996 WL 637480, at *2 (6th Cir. Nov. 4, 1996); Veal v. Kerr-McGee Coal Corp., 682 F. Supp. 957, 959-61 (S.D. Ill. 1988). The record fails to establish that Plaintiff has filed an unfair labor practice charge with the NLRB complaining of Defendant's alleged retaliation. It follows that he may not pursue such a claim in this Court in the first instance, absent any attempt to invoke the appropriate administrative mechanism for protesting an unfair labor practice.
These cases further confirm that any possible state-law claim involving Plaintiff's protected activities before the NLRB would be preempted, with the NLRB again having exclusive jurisdiction over any such claim.
A similar defect defeats any possible retaliation claim arising from Plaintiff's protected activities before the EEOC. Such retaliation is prohibited under the terms of Title VII. See 42 U.S.C. § 2000e-3(a). Yet, the courts cannot address a Title VII retaliation claim unless and until the claimant first exhausts his administrative remedies by timely filing a charge with the EEOC and receiving notice of the right to sue. See 42 U.S.C. § 2000e-5(e), (f); Strouss v. Michigan Dep't of Corrections, 250 F.3d 336, 342 (6th Cir. 2001), Again, nothing in the record indicates that Plaintiff has exhausted his administrative remedies with respect to his purported claims of retaliation arising from protected activities before the EEOC.
The Court noted this apparent defect in its initial show cause order. In response, Defendant correctly pointed out that this did not defeat its right of removal, where the complaint on its face could arguably be read as asserting a federal Title VII retaliation claim. Having reached the summary judgment phase of this case, however, it is now appropriate to inquire whether Plaintiff has satisfied the threshold exhaustion-of-remedies requirement. The record demonstrates that he has not.
Finally, Plaintiff's citation in his complaint to OSHA, without more, also fails to give rise to a federal cause of action. First, as an evidentiary matter, nothing in the record indicates that Plaintiff ever lodged any complaints with this federal agency. Rather, OSHA is conspicuously absent from Plaintiff's recitation in his affidavit of his various protected activities. As such, there is no factual basis for any such federal retaliation claim. In any event, it does not appear that Plaintiff has ever pursued any such claim in an administrative forum, and the Sixth Circuit has held that no private right of action exists that would permit an employee to pursue such a claim in court. See Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980). Rather, the employee's remedy is to file a complaint with the Secretary of Labor. See 29 U.S.C. § 660(c); Taylor, 616 F.2d at 259.
This leaves only Plaintiff's state-law theories of recovery. The Court declines to address Defendant's challenges to these state-law claims, where any purported federal claims lying within the Court's original jurisdiction have been dismissed. See 28 U.S.C. § 1367(c)(3): see also Hankins v. Gap. Inc., 84 F.3d 797, 803 (6th Cir. 1996) (noting the usual rule that "if the federal claims are dismissed before trial . . . the state claims should be dismissed as well"). Rather, the Court leaves Plaintiff's state-law claims for resolution by the state court upon remand.
IV. CONCLUSION
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's August 30, 2002 Motion for Summary Judgment is GRANTED IN PART, to the extent that it challenges the federal claims arguably asserted in Plaintiff's complaint.