Opinion
No. 97 C 5872
August 22, 2000
MEMORANDUM OPINION AND ORDER
Anthony Brown has sued Local 701 of the International Brotherhood of Electrical Workers ("Local 701") under the Labor Management Relations Act, 29 U.S.C. § 185(a), for its alleged breaches of the IBEW constitution (Count I) and under state law for its alleged breaches of its own by-laws (Count IV). Local 701 has filed a Federal Rule of Civil Procedure 56(c) motion for summary judgment and both parties have filed motions to strike various factual submissions of the other. For the reasons set forth below, plaintiff's motion to strike the affidavit and deposition testimony of Clair Scott is denied, plaintiff's motion to strike paragraphs 237-242 and 256 from Local 701's Local General Rule ("Rule") 12(M) Statement is granted in part and denied in part, Local 701's motion to strike paragraphs 22-32 of plaintiff's affidavit and paragraphs 330-339 of plaintiff's Rule 12(N)Statement is granted, Local 701's motion for summary judgment on the claims asserted against it in Count I is granted, and we decline to exercise supplemental jurisdiction over the state-law claim plaintiff asserts in Count IV.
Counts II and III were dismissed by the Court in February 1998. (See Mem. Op. Order of 2/12/98.)
Effective September 1, 1999, Local General Rule 12 was changed to LR 56.1. Although this motion was filed and briefed after the effective date of the new rule, the parties submitted Rule 12, rather than LR 56.1, statements. To avoid confusion, we will refer to the various fact statements as the parties do.
In addition to formal filings, plaintiff, apparently unbeknownst to any of the lawyers, sent various materials directly to the Court. We have not considered any of these materials in deciding the motion, but have sent them to be filed with the record in this case.
Plaintiff's Motions to Strike
Plaintiff asks the Court to strike the Affidavit of Clair Scott, Director of Appeals and By-laws for the IBEW, in which he opines about the IBEW's interpretation of its constitution, his deposition testimony on the same topic, and paragraphs 179-183, 186, 190, 200, 202, 215-16, 218, 230, 264 of Local 701's Rule 12(M) Statement, which are based on Scott's testimony, because: (1) the International President did not properly delegate authority to Scott to interpret the constitution; and (2) even if there were proper delegation, it is the Court's province, not that of the IBEW, to interpret the constitution as it applies to this dispute. Neither of these contentions has any merit.First, the IBEW constitution empowers the International President, among other things, to "decide all questions of law, dispute or questions in controversy however arising." (Affs. Supp. Def.'s Mot. Summ. J., Ex. A, Ludwig Aff., Ex. 4, IBEW Const., Art. IV, § 3(2).) The power to decide all controversies and questions of law necessarily includes the power to interpret the constitution. Maher v. International Bhd. of Elec. Workers, 15 F.3d 711, 714 (7th Cir. 1994) (assuming that Article IV, Section 3(2) of the IBEW constitution empowers the International President to interpret the constitution). The constitution also permits the International President "in any situation, [to] delegate the powers of his office to an International Representative, Vice President or Assistant." (Affs. Supp. Def.'s Mot. Summ. J., Ex. A, Ludwig Aff., Ex. 4, IBEW Const., Art. IV, § 4.) Scott says that the International President, J.J. Barry, designated him to provide opinions on the International Union's interpretation of its constitution, an assertion that J.J. Barry confirms. (Affs. Supp. Def.'s Mot. Summ. J., Ex. C, Scott Aff. para; 2; Resp. Affs. Dep. Excerpts Supp. Def.'s Mot. Summ. J. Resp. Pl.'s Mot. Strike Aff., Barry Aff. ¶ 3.)
Plaintiff contends that we must disregard both of those statements: Scott's because it is hearsay and Barry's because it was presented too late. We disagree. Scott's statement is not, in fact, hearsay. Federal Rule of Evidence 801 defines hearsay as an out-of-court statement "offered in evidence to prove the truth of the matter asserted." If, however, the statement is offered to prove only that it was made, because the fact that it was made has independent legal significance, it does not fall within the definition of hearsay. Such is the case with Scott's statement. Local 701 offers it to show that Barry transferred interpretative power to Scott, making it admissible non-hearsay.
Moreover, even if it were hearsay, the record contains a plainly admissible statement by Barry, confirming the delegation of power to Scott. That statement appears in Barry's affidavit, which Local 701 submitted in response to plaintiff's motion to strike. The affidavit was not, therefore, presented too late to be considered in connection with this motion. Plaintiff's motion to strike the affidavit and deposition testimony of Clair Scott, and the facts in Local 701's Rule 12(M) Statement that are support by them, is denied.
Plaintiff also asks us to strike paragraphs 237-242 and 256 from Local 701's Rule 12(M) Statement because the facts they contain are irrelevant (¶ 237), inadmissible hearsay (¶¶ 238-242) or too speculative to be considered on this motion (¶ 256). Only the last contention has any merit.
Paragraph 237 is plainly relevant to this suit. Local 701 contends that in 1993, John Brining, a 701 Business representative, called the IBEW local in Denver, Colorado to determine whether there was work available in that area, and that it was Brining's normal practice to make such calls when business was slow in Local 701. Though not crucial, that statement is relevant to plaintiff's claim that Brining sent him to Denver when he knew plaintiff could not find work there. If it is true that Brining normally inquires about the availability of work in other jurisdictions when there is little work in 701, then it is more likely that he did so in this instance and sent plaintiff to Denver in good faith, and less likely that he deliberately sent plaintiff on a wild goose chase.
Nor are we persuaded that the statements in paragraphs 238-242 are hearsay. In paragraph 238, Local 701 states that Brining spoke to Tidwell, the IBEW referral agent in Denver, but does not recount their conversation. Because that paragraph does not contain any out-of-court statement, it is not hearsay. FED. R. EVID. 801(c). Paragraphs 239-242 recount Brining's conversation with Tidwell, the gist of which is that Tidwell said there was plenty of work in Denver for wiremen at all levels. Though these paragraphs relate Tidwell's out-of-court statements, Local 701 does not offer them to prove the matter asserted, i.e., that there actually were wiremen jobs available in Denver. Rather, Local 701 offers the statements to show that Brining reported the Denver job opportunity to plaintiff in good faith. As such, the statements in paragraphs 238-242 are admissible non-hearsay. FED. R. EVID. 801(c).
We do, however, agree with plaintiff that the "facts" in paragraph 256 are too speculative to be admitted. In that paragraph, Local 701 asserts that plaintiff would have been referred for employment "very soon after he signed Book IV" if he had left a contact number with the Denver local and "obtained the necessary temporary work pemit while awaiting state examination." That statement is based on Tidwell's affidavit, which does not say: (1) how long it would have taken plaintiff to obtain the temporary work permit; (2) what number plaintiff had in Book IV; (3) if plaintiff would have been required to resign Book IV after he received his temporary permit, or could have maintained his position on the referral list; (4) the total number of wiremen who were referred for work out of Book IV in May 1993; (5) whether the Denver local, like Local 701, has an unlimited turndown rule that would have impacted plaintiff's chances for a work referral in that time period; and (6) taking all relevant factors into consideration, how many days or weeks plaintiff would have had to wait for a work referral out of Denver. Absent such information, there is no support for Local 701's conclusion that plaintiff would have been quickly referred for work out of Denver if he had stayed there. Paragraph 256 of Local 701's Rule 12(M) Statement is, therefore, stricken.
Local 701's Motion to Strike
Local 701 asks us to strike paragraphs 22-32 of plaintiff's affidavit and paragraphs 330-339 of plaintiff's Rule 12(N) Statement because they address harassment plaintiff allegedly suffered after 1995, incidents that are not relevant to any claim in plaintiff's First Amended Complaint. The Court agrees. There are two claims left in this suit: (1) that Local 701 breached the IBEW constitution by failing (a) to conduct or properly administer proficiency exams and refusing to accept the result of exams administered by other IBEW locals; (b) to investigate plaintiff's experience in the trade or examine him for membership; (c) to provide plaintiff with adequate training; (d) to place plaintiff in the proper work referral classification group; and (e) to refer plaintiff for work as required by the constitution (First Am. Compl., Count I ¶ 22); and (2) a state-law claim for Local 701's refusal to let plaintiff review his exam papers. (See id., Count IV; 7/17/98 Mem. Op. Order.) None of the alleged events on which these claims are based occurred after 1995. In paragraphs 22-32 of his affidavit, and in paragraphs 330-339 of his Rule 12(N)(3)(b) Statement, plaintiff recounts various incidents of harassment that he allegedly suffered after 1995, apparently in retaliation for his complaints against Local 701.
Plaintiff contends that these post-1995 events are relevant to his claims because they demonstrate the continuing nature of Local 701's wrongful conduct. We disagree. The events alleged in plaintiff's affidavit are entirely distinct from those alleged in his complaint. In his affidavit, plaintiff alleges that Union officials and other Union members called him names, threatened him and refused to work with him, and at least one employer fired him, in retaliation for his complaints against Local 701. (Pl.'s Resp. Def.'s Mot. Summ. J., Brown Aff. §§ 22-32.) Such conduct may also be actionable, but it has no bearing on the claims plaintiff has asserted in the first amended complaint: that Local 701's testing, training and work referral practices violate the IBEW constitution and state law.
We also reject plaintiff's contention that we may consider these allegations because he previously raised them in an affidavit he submitted in response to Local 701's first motion to dismiss. These are not supplementary allegations that flesh out the claims he made in his first amended complaint; they constitute an entirely new claim that plaintiff has never alleged. Plaintiff had ample time between November 1997, when he submitted the affidavit, and June 2000, when Local 701 filed its motion for summary judgment, to seek to amend his complaint to include these allegations, but he did not. Having foregone that opportunity, he cannot now treat an exhibit to a three-year old brief as an amendment of his complaint. Local 701's motion to strike paragraphs 22-32 of plaintiff's affidavit and paragraphs 330-339 of his Rule 12(N)(3)(b) Statement, which they support, is granted.
Local 701's Motion for Summary Judgment
Facts
Plaintiff was initiated as a member of Local 701 on November 11, 1988. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 2.) Local 701 did not give him a competency exam or investigate his experience in the trade when he joined. (Id. ¶¶ 42,44.)The rights and obligations of Local 701 members are expressed in the IBEW constitution, the by-laws of Local 701 and the collective bargaining agreement ("CBA") to which Local 701 is a party. (Id. ¶ 12.) Local 701 members are referred for work pursuant to the terms of the ("CBA"). (Id. ¶¶ 92-93.) The CBA sets forth four work referral groups:
Group I: All applicants for employment who have four or more years experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a [Journeyman Wireman's] examination given by a duly constituted Inside Construction Local Union of the IBEW or have been certified as a [Journeyman Wireman] by any Inside Joint Apprenticeship and Training Committee and who have been employed for a period of at least one (1) year in the last four (4) years under a collective bargaining agreement between the parties to this Agreement.
Group II: All applicants for employment who have four (4) or more years experience in the trade and who have passed a [Journeyman Wireman's] examination given by a duly constituted Inside Construction Local Union of the IBEW or have been certified as a [Journeyman Wireman] by any Inside Joint Apprenticeship and Training Committee.
Group III: All applicants for employment who have two (2) or more years experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six (6) months in the last three (3) years in the trade under a collective bargaining agreement between the parties to this Agreement.
Group IV: All applicants for employment who have worked at the trade for more than one (1) year.
(Id. ¶¶ 97-100) (emphasis in original).
The CBA referral procedure gives Group I members the highest employment priority, Group II members the next highest, and so on. (Id. ¶ 104.) Members of each group must be referred for work in the chronological order in which they sign the out-of-work fist. (Id. ¶¶ 102-104.) Members are laid off in the reverse of the referral order. (Id. ¶ 106.) Thus, the last person referred for work on the Group IV out-of-work list is the first to be laid off; the first person referred for work from the Group I list is the last to be laid off. (Id.)
When plaintiff joined Local 701 he had not passed a Journeyman Wireman's examination given by a duly constituted Inside Construction Local Union of the IBEW nor had he been certified as a Journeyman Wireman by any Inside Joint Apprenticeship and Training Committee, which were necessary to be classified as Group I or II. (Id. ¶ 107.) Accordingly, plaintiff was classified as Group III. (Id. ¶ 108.)
When plaintiff joined the union, new members were required to work for three years before they could apply to take an upgrade class. (Id. ¶ 58.) Plaintiff, therefore, was not eligible to apply for an upgrade class until 1991. (Id.) The only other route to Group I status was to pass a proficiency exam. Plaintiff did not, however, apply to take a proficiency exam between 1988 and 1991. (Id. ¶¶ 46, 49.)
Plaintiff attempted to deny this fact statement by referring to paragraph 55 in his Rule 12(N) statement. Because plaintiff's Rule 12(N) Statement does not contain a paragraph 55, he is deemed to have admitted this fact.
Plaintiff took his first journeyman proficiency exam in December 1992. He failed that exam, as well as the ones he took in May 1993 and October 1995. (Brown Dep. at 101-114.) In 1995, plaintiff asked Local 701 to let him review his 1993 and 1995 examinations, but Local 701 refused. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 76.) Plaintiff took the exam again in January 1996, and passed, obtaining Group I status in February 1996. (Brown Dep. at 115-16).
In 1990, Local 701 introduced a new classification called Journeyman Wireman Pending Examination ("JWPE"). (Pl.'s Resp. Def.'s Rule 12(M) Stmt., ¶ 110.) On June 28, 1990, plaintiff and other members who were classified in Group III were told that they were reclassified JWPE. (Id.) According to Local 701 Business Manager Art Ludwig, the purpose of JWPE classification was to increase employment opportunities for newly organized members like plaintiff. (Def.'s Rule 12(M) Stmt. ¶ 111.) When he was classified as JWPE, plaintiff was referred for work behind Group I, but ahead of Groups II, III and IV. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 118.)
From June 1990 until February 1993, while plaintiff was classified JWPE, plaintiff was employed almost continuously. (Id. ¶¶ 119-129.) In February 1993, however, things changed. Plaintiff was not referred for work by Local 701 even once from February-April 1993. (Id. ¶ 233.) JWPEs were not being referred for work, Local 701 contends, because the Group I out-of-work list was not being exhausted. (Id. ¶¶ 130, 234.)
At about the same time, John Brining, a Local 701 Business Representative, called the Denver IBEW local to determine whether there were jobs available there. Brining was told that there were, and passed the information on to plaintiff (Id. ¶¶ 236-243.) Plaintiff says Brining also told him that he could sign the Group II out-of-work list if he went to Denver. (Id. ¶ 244.) Thereafter, plaintiff sold his possessions, and moved his family to Denver. (Id. ¶¶ 245, 248.)
On May 3, 1993, when plaintiff went to the Denver union hall, he was told to sign the Group IV out-of-work list, not the Group II list. (Id. ¶ 249.) Plaintiff left Denver the following day because he believed there were too may people ahead of him on the work referral list, and he could not afford to wait for work. (Id. ¶ 254.) Plaintiff went from Denver to West Virginia and found work there through Local 317. (Id. ¶ 150.)
Plaintiff worked in West Virginia from May 1993 through February 1995. (Id. ¶¶ 151-156.) In June 1995, plaintiff returned to Local 701's jurisdiction, and has remained there ever since. (Id. ¶¶ 148, 157.)
On September 17, 1996, plaintiff filed a charge with International Vice President O'Connor, alleging that Local 701 had improperly classified him JWPE, improperly referred him for work and improperly administered the proficiency exams. (Affs. Supp. Def.'s Mot. Summ. J., Aff. Jeremiah O'Connor, Ex. 1, 9/17/96 Letter to O'Connor from Swiatek.) On April 17, 1997, O'Connor issued a decision denying plaintiff's charge because it was untimely. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶¶ 32. 33.) Plaintiff attempted to appeal O'Connor's decision to IBEW President J.J. Barry, who informed plaintiff that he had no right to appeal. (Id. ¶ 37.) Plaintiff's attempt to appeal to the International Executive Council was also unsuccessful. (Id. ¶ 38.) On August 19, 1997, plaintiff filed this suit.
Discussion
To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] 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." Fed.R.Civ.P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Illinois Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Id.
Local 701 asserts that it is entitled to summary judgment on plaintiffs' claims for breach of the IBEW constitution because he failed to exhaust internal union remedies. The IBEW constitution provides:
All charges against an officer or representative of a [Local Union] must be presented in writing, signed by the charging party, and specify the section or sections of this Constitution, the bylaws, rules or working agreement violated. The charges must state the act or acts considered to be in violation, including approximate relevant dates and places; and must be made within sixty (60) days of the time the charging party first became aware, or reasonably should have been aware, of the alleged act or acts.
(Affs. Supp. Def.'s Mot. Summ. J., Ex. A, Ludwig Aff., Ex. 4, IBEW Const., Art. XXVI, § 8.) If, as Local 701 contends, plaintiff did not present his claims to the union within the sixty-day time period, he is barred from seeking relief from this Court. Stevens v. Northwest Indiana Dist. Council. United Bhd. of Carpenters, 20 F.3d 720, 733 (7th Cir. 1994) (noting that "foreclosure from a judicial remedy is the inevitable consequence of an unexcused and irremediable failure to exhaust," after the time for exhaustion has passed). It is undisputed that plaintiff filed a charge with the union on September 17, 1996 concerning the claims he asserts here. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 14.) Thus, unless there is evidence to suggest that plaintiff "first became aware, or reasonably should have been aware" of the conduct underlying his claims on or after July 18, 1996, they must be dismissed for failure to exhaust.
Plaintiff's claims for breach of the IBEW constitution appear in paragraphs 22A-J of Count I of his first amended complaint. As plaintiff admits, subparagraphs A, B and J, concern actions that Local 701 allegedly failed to take when he joined the union, including: examining him for membership; giving him a competency exam; and investigating his experience in the trade. (First Am. Compl., Count I ¶ 22A, B, J; Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶¶ 42-44.) Local 701 does not deny that these are constitutional requirements, but argues that plaintiff should reasonably have been aware of these breaches when he joined the union in 1988. We agree. Because plaintiff did not file a charge with the union on these claims within sixty-days after he joined the union, he is now barred from obtaining relief.
In paragraph 22C, plaintiff alleges that Local 701 breached the IBEW constitution by "[f]ailing or refusing to offer proficiency exams at such intervals as required." The constitution requires each local union examining board to "meet at least quarterly" to examine applicants for membership, a provision that both parties assume applies equally to proficiency testing of established members. (See Affs. Supp. Def.'s Mot. Summ. J., Ex. A, Ludwig Aff., Ex. 4, IBEW Const., Art. XVIII, § 15; Def.'s Rule 12(M) Stmt. ¶ 51; Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 51.) Plaintiff admits that he became aware in 1993 that Local 701 did not hold proficiency exams each quarter. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 55.) Because plaintiff did not file a timely union charge on this claim, it must be dismissed.
In paragraph 22D, plaintiff alleges that Local 701 failed or refused to provide him proper education and training as required by the constitution. As an initial matter, though Local 701 does not dispute that they are constitutionally required, plaintiff has not identified, and we cannot find, any provision of the IBEW constitution that directs local unions to educate and train their members. The constitution empowers locals to "adopt, or subscribe to, an apprenticeship system, training program, or helper rules," but it does not require them to do so. (Affs. Supp. Def.'s Mot. Summ. J., Ex. A, Ludwig Aff., Ex. 4, IBEW Const., Art. XVI, § 14.) It also permits locals to require members who are "not sufficiently acquainted with the branch or type of work on which [they are] engaged to earn or command the established wages" to "attend electrical study classes or devote time toward becoming a competent, properly informed electrical mechanic or employee." (Id., Art. XX, § 2.) But this provision, which is also permissive, has no application to this case as plaintiff does not claim that his skills were too poor to enable him to earn the established wage. In short, Local 701 could not have breached its constitutional obligation to provide plaintiff training and education because it had no such obligation.
Even if it did, plaintiff once again failed to alert the union to the alleged training deficiencies within the prescribed period of time. The only training deficiencies identified by plaintiff are: (1) the three-year waiting period Local 701 imposed on new members before they could apply to take upgrade classes; and (2) Local 701's failure to prepare members for proficiency exams. With respect to the first issue, plaintiff admits that he knew about the waiting period when he joined the union in 1988. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 58.) With respect to the second, he admits that he realized in January 1995 that the union's behavior might be in violation of the constitution. (Id. ¶ 60.) Because plaintiff did not file a timely charge about either situation, he could not complain about them now, even if those actions did violate the IBEW constitution.
See n. 4.
In paragraphs 20E and 20H, plaintiff alleges that Local 701 failed to place him in the appropriate work referral classification. To the extent plaintiff challenges his placement in Group III for the years 1988-1990, he admits that he knew during those years that he was signing the Group III out-of-work list. (Id. ¶ 62.) To the extent he challenges his classification as JWPE from 1990-1996, plaintiff admits that he was aware of that reclassification in 1990. (Id. ¶ 63.) Thus, these claims are doomed by plaintiff's failure to file timely charges on them.
In paragraph 20F, plaintiff alleges that Local 701 failed to properly refer him for work. The period of improper referral, plaintiff admits, started in July 1990, when he was reclassified as JWPE, and ended in February 1996, when he obtained Group I status. (Id. ¶¶ 66, 68.) Plaintiff, however, did not file a charge with the union about the improper referral until September 1996, long after the sixty-day period had expired.
Though plaintiff denies paragraph 68 of Local 701's Rule 12(M) Statement on other grounds, he does not contend that Local 701 continued to refer him for work improperly after February 1996.
Plaintiff argues that the charge was timely, however, because the improper classification and work referral were continuing violations of the IBEW constitution. Continuing violation theory "is designed to `accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered . . . timely.'" Hardin v. S.C. Johnson Son., Inc., 167 F.3d 340, 344 (7th Cir.), cert. denied, 120 S. Ct. 178 (1999) (quoting Peatzold O'Leary, Continuing Violations and Hostile Environment Sexual Harassment: When is Enough, Enough?, 31 AM. BUS. L.J. 365 (1994)). Our court of appeals recognizes three kinds of continuing violations. The first arises when the unlawful conduct, like a hiring decision, "takes place over a period of time, making it difficult to pinpoint the exact day the `violation' occurred." Stewart v. CPC Int'l. Inc., 679 F.2d 117, 120 (7th Cir. 1982). The second arises when there is an "express, openly espoused policy [that is] alleged to be discriminatory." Id. at 121; see Palmer v. Board of Educ. Comm. Unit Sch. Dist. 201-U, 46 F.3d 682, 686 (7th Cir. 1995) (holding that 42 U.S.C. § 1983 claim alleging racial discrimination in operation of schools was a timely continuing violation because race discrimination claim arises each day a student is assigned to a school under a discriminatory policy). The third arises when there is a pattern of covert conduct such that the plaintiff only belatedly recognizes its unlawfulness.Id. Plaintiff's classification and work referral claims arguably fall within the second category: openly espoused policies that constitute a continuing violation of the IBEW constitution.
In his response, plaintiff argues that, taken together, all of the constitutional violations he asserts constitute a "continuing violation." (See, e.g., Pl.'s Resp. Local 701's Mot. Summ. J. at 1-2.) We disagree. Local 701's alleged acts and omissions, as described in paragraph 20A-D, G, I, and J of plaintiff's first amended complaint, are separate and independent constitutional breaches that plaintiff should have realized were actionable at the time they occurred. The fact that Local 701, in plaintiff's view, continued to violate various provisions of the IBEW constitution or breached the same provision on more than one occasion does not transform a series of isolated and discrete acts into a continuing violation. See Selan v. Kiley, 969 F.2d 560, 564-66 (7th Cir. 1992) (discussing factors that warrant treating a series of acts as a continuing violation).
Even if these were continuing violations, an issue we need not decide, plaintiff admits that they ceased as of February 14, 1996, when he obtained Group 1 status. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 68.) Thus, he still would have had to file a charge with the union, at the latest, sixty days after February 14, 1996. It is undisputed that the only formal charge plaintiff filed with the union was submitted five months too late. But he wrote an informal letter of complaint in February 1995 that he contends is the equivalent of a charge.
Plaintiff denies this fact statement on the grounds that he continued to feel the economic effects of the improper classification, even after it ceased. (See Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 68.) The fact that a single illegal act has lingering effects does not, however, transform it into a continuing violation. Dasgupta v. University of Wisconsin Bd. of Regents, 121 F.3d 1138, 1140(7th Cir. 1997).
Plaintiff's reliance on the 1995 letter solves one problem, but creates another. Plaintiff had six months from the time he exhausted the union's internal grievance procedure on his constitutional claims to file this suit. (See 2/12/98 Mem. Op. Order at 10-13.) If the 1995 letter is a charge, the union's internal process was completed when then-International Vice President Conway responded to it on March 14, 1995. (See Vol. B, Brown Exs., Ex. 45, 3/14/95 Letter to Brown from Conway; Affs. Supp. Def.'s Mot. Summ. J., Ex. A, Ludwig Aff., Ex. 4, IBEW Const., Art. XXVI, § 9 (requiring International Vice President to determine charges filed by members, and granting right of appeal solely to charged parties).) Plaintiff then had until September 15, 1995, nearly two years before he actually did so, to timely file this suit.
Plaintiff has argued himself into a Catch-22. If the 1995 letter was a charge, he timely exhausted internal union remedies, but filed this suit too late. If it was not, the suit is timely, but he failed to exhaust union remedies. Either way, Local 701 is entitled to judgment as a matter of law on plaintiff's claims that Local 701 improperly classified and referred him for work.
Plaintiff's assertion that his 1995 letter constitutes a timely charge on his claims also contradicts the allegations he made in both of his complaints. In those pleadings, plaintiff said that the internal union process was completed on his charge on June 12, 1997, when the International Secretary advised him that the International Executive Council ("I.E.C.") refused to hear his appeal. (Compl. ¶ 30; First Am. Compl. ¶ 30.) Plaintiff admits that the appeal the I.E.C. refused to entertain was from the decision on the formal charge that he filed in September 1996. (Pl.'s Resp. Def.'s Rule 12(M) Statement ¶¶ 14, 33, 37-38.) Plaintiff is now bound by this admission.
In paragraph 20G of his first amended complaint, plaintiff alleges that Local 701 breached the IBEW constitution by failing to properly administer proficiency exams. Plaintiff took the journeyman wireman proficiency exam three times, in December 1992, May 1993 and October 1995. before passing it in 1996. (Brown Dep. at 101-115.) To the extent plaintiff challenges the content of the exams, he was necessarily aware of their content when he took them. To the extent he challenges the grading of the exams, he admits he knew in December 1992 that he had failed the 1992 exam, that he knew in June 1993 that he had failed the 1993 exam, and that he knew in October 1995 that he had failed the 1995 exam. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 72.) In addition, he complained in his February 1995 letter to International Vice President Conway that additional points for experience were not added to the scores of his first two exams, and in a December 1995 affidavit to the NLRB that his 1995 exam was intentionally mismarked to keep him from attaining Group I status. (See Vol. B, Brown Exs., Ex, 44 Letter to Conway from Brown; Brown Dep., Ex. 56, 12/95 Brown Aff. to NLRB; Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 74.) To the extent plaintiff's claim is based on Local 701's refusal to allow him to review his exams, plaintiff admits that he knew by December 1995, at the latest, that the union would not let him see his exams. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶¶ 76-77.) In short, the record establishes that plaintiff was aware of all of the alleged problems with Local 701's proficiency exams more than sixty days before he filed a charge about them.
In paragraph 20I, plaintiff alleges that Local 701 violated the IBEW constitution by refusing to accept the proficiency exams of other IBEW local unions. Plaintiff admits, however, that he never passed a proficiency exam given by another local that he asked Local 701 to honor. (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 79.) Rather, he bases his claim on a statement allegedly made by Local 701 Business Manager Art Ludwig in January or February 1995 that he would not honor such a test if asked to do so. (Id. ¶ 80.) Thus, to the extent Ludwig's statement about a hypothetical situation constituted a violation of the constitution, plaintiff should have filed a charge about it in 1995.
Finally, though it is not alleged in plaintiff's first amended complaint, he contends that Local 701 violated the IBEW constitution when John Brining told him that there was work available in Denver. Even if this were a constitutional violation, plaintiff admits he was aware of it in May 1993, three years before he filed his charge with the union. (Id. ¶ 81.)
In a last ditch effort to save his Count I claims, plaintiff argues that he did not need to exhaust internal union remedies because it would have been futile to do so. According to plaintiff, International Vice President O'Connor, the union officer responsible for determining charges, was so hostile to his claims that submitting them for his decision would have been a useless act. (Pl.'s Resp. Def.'s Mot. Summ. J. at 7-8.) Plaintiff did not, however, allege futility in his First Amended Complaint. Rather, he affirmatively alleged that he had exhausted internal union remedies, not that doing so would have been futile. (First Am. Compl., Count I ¶ 30.) Plaintiff cannot raise a claim of futility for the first time in response to a summary judgment motion. Cheek v.Peabody Coal, 97 F.3d 200, 202 (7th Cir. 1996) (noting that claims not alleged in complaint are waived).
Even if his futility claim were timely, it would only succeed if plaintiff could make a "clear and positive showing" that exhaustion would have been futile. Tinsley v. United Parcel Serv., 635 F.2d 1288, 1291 (7th Cir. 1980) (internal quotation marks and citation omitted), vacated on other grounds, 452 U.S. 934 (1981). It would have been, plaintiff contends, because of the hostility O'Connor harbored toward him. Hostility can be a grounds for excusing exhaustion but only if there is evidence that O'Connor was "so hostile to [plaintiff] that [he] could not hope to obtain a fair hearing on [his] claim." Stevens v. Northwest Indiana Dist. Council, United Bhd. of Carpenters, 20 F.3d 720, 733 (7th Cir. 1994) (quotation marks, alterations and citation omitted).
There is not sufficient evidence in the record to suggest that plaintiff could carry that burden. O'Connor asserts that he has never had any hostility towards plaintiff. (Resp. Affs. Dep. Excerpts Supp. Def.'s Mot. Supp. J. Resp. Pl.'s Mot. Strike Aff Dep. Clair Scott, Aff. Jeremiah O'Connor ¶¶ 13, 15.) The only evidence that plaintiff has to counter that assertion is an affidavit he submitted to the NLRB, in which he claims that O'Connor "would not talk to him," and later, when plaintiff commented that he should transfer locals and change his name, O'Connor said "Yes, you could change it to "Joe Sh**." (Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 86; Brown Dep. Ex. 57.) In that same affidavit, however, plaintiff says that O'Connor (1) arranged for plaintiff to be enrolled in the next upgrade class and to see his October 1995 exam (a deal that Art Ludwig refused to honor); (2) told plaintiff that he could transfer to another IBEW local union of his choice; and (3) even after the alleged name-calling incident, continued to try to help plaintiff. (Id.) On the whole, plaintiff's supplemental NLRB affidavit suggests that O'Connor tried to resolve plaintiff's complaints, not that he was so hostile to plaintiff that he would not entertain them. Thus, plaintiff would not have created a triable issue of fact on futility, even if that claim had been properly asserted.
Plaintiff also claims that his December 4, 1995 NLRB charge and accompanying affidavit demonstrate O'Connor's hostility. (See Pl.'s Resp. Def.'s Rule 12(M) Stmt. ¶ 86; Brown Dep., Exs., 55, 56.) In those documents, however, plaintiff attributes misconduct to Local 701 generally, or to Business Manager Art Ludwig, not to O'Connor.
That brings us to Count IV, plaintiff's state-law claim that Local 701 violated its by-laws by refusing to allow plaintiff to see his proficiency exams. Having dismissed plaintiff's federal claims, we decline to exercise supplemental jurisdiction over this state-law claim. See 28 U.S.C. § 1367(c)(3).
Conclusion
For the reasons set forth above, plaintiff's motion to strike the affidavit and deposition testimony of Clair Scott is denied, plaintiff's motion to strike paragraphs 237-242 and 256 from Local 701's Rule 12(M) Statement is granted in part and denied in part Local 701's motion to strike paragraphs 22-32 of plaintiff's affidavit and paragraphs 330-339 of plaintiff's Rule 12(N) Statement is granted, Local 701's motion for summary judgment on the claims asserted against it in Count I is granted, and those claims are dismissed with prejudice, and we decline to exercise supplemental jurisdiction over the state-law claim plaintiff asserts in Count IV, which is dismissed without prejudice. This is a final and appealable order.