I, Suit Against Local 110 In its Employer Capacity

Colangelo attempts to sue Local 110 in its capacity as her employer for sexual
discrimination and retaliation in violation of Title VII. In her complaint Colangelo seeks to
proceed against Local 110 in its capacity as her employer under 42 U.S.C. § 2000e-2(c) which
deals with unlawful employment practices by a labor organization. However, the applicable
section when dealing with an employee/employer relationship, whether the employer be union or
any other entity is under 42 U.S.C. § 2000e-2(a). Therefore, we shall begin by analyzing

Colangelo’s claim under 42 U.S.C. § 2000e-2(a).

A. Unlawful Employment Practices by an Employer

Title VII provides:

(a) Employer practices
It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion, sex, or national origin .

42 U.S.C. § 2000e-2(a)(emphasis added). In regards to retaliation Title VII also provides:

It shall be an unlawful employment practice for an employer to discriminate against any
of his employees or applicants for employment, for an employment agency, or joint labor-
management committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any individual, or for a
labor organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.

42 U.S.C. § 2000e-3(a)(emphasis added). Under Title VII an “employer” is defined as:

4


A. Discrimination as a Labor Organization

A union is prohibited under Title VII from “engaging in discriminatory referral practices
and from participating in discriminatory training programs.” See Barbrocky v. Jewel Food
Company, 773 F.2d 857, 868 (7th Cir. 1985)(citing § 2000e-2(c)). In order to establish a prima

Jacie case in a Title VII claim against a union based on a breach of duty of fair representation a
plaintiff is required to show: that (1) the employer violated the collective bargaining agreement
with respect to the plaintiff, (2) the union did not address and contest the breach, thus breaching
its own duty of fair representation, and (3) “there was some indication that the [uJnion's actions
were motivated by discriminatory animus.” Jd. If a plaintiff is able to establish a prima facie
case against the union, the union would have an opportunity to prove that its actions were not
racially motivated and more than just pretextual. Jd.

Local 110 argues that there is not sufficient evidence that Colangelo made a good faith
effort to secure a referral from Local 110. Pursuant to Local Rule 56.1 Colangelo admits that she
did not request a referral prior to her suspension meeting on June 6, 2000. (R SF 95). Colangelo
maintains that she requested referrals on three occasions: 1) from Spano during the suspension
meeting on June 6, 2000, 2) during her telephone call with Spano while she was suspended, 3)
during her telephone conversation with Spano when she was terminated, and 4) when she filed
her Equal Employment Opportunity Commission (“EEOC”) charge of discrimination. (R SF 93,
95, 97). Colangelo admits pursuant to Local Rule 56.1 that “[a]t no time did she send anything
in writing to the Union requesting work or job referrals.” (R SF 97). Colangelo claims that she
requested a referral when she was suspended. However, she was not entitled to a referral during

her paid suspension. Colangelo claims she called Spano at home and asked for a referral, but it



in Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003). However, this court
notes that Clackamas did not involve a union and its board members, but rather involved a
corporation and its director-shareholders. Jd. at 1676. In addition, in Clackamas, the Court
examined the definition of an “employee” pursuant to the Americans with Disabilities Act
(“ADA”) rather than in the context of Title VII. Jd. Therefore Clackamas is not applicable in

the instant case.

B. Unlawful Employment Practices by a Labor Organization

Colangelo also claims that she is entitled to sue Local 110 in its capacity as an employer
under the labor organization provision in Title VII. Title VII provides:

(c) Labor organization practices
It shall be an unlawful employment practice for a labor organization--

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any
individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to
classify or fail or refuse to refer for employment any individual, in any way which would
deprive or tend to deprive any individual of employment opportunities, or would limit
such employment opportunities or otherwise adversely affect his status as an employee or
as an applicant for employment, because of such individual's race, color, religion, sex, or
national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in
violation of this section.

42 U.S.C. 2000e-2c). Title VII also states:

The term "labor organization" means a labor organization engaged in an industry
affecting commerce, and any agent of such an organization, and includes any organization
of any kind, any agency, or employee representation committee, group, association, or
plan so engaged in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours, or other terms or conditions of employment, and any conference,
general committee, joint or system board, or joint council so engaged which is

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... person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a person, but such term does not
include (1) the United States, a corporation wholly owned by the Government of the

United States, an Indian tribe, or any department or agency of the District of Columbia

subject by statute to procedures of the competitive service (as defined in section 2102 of

Title 5), or (2) a bona fide private membership club (other than a labor organization)

which is exempt from taxation under section 501(c) of Title 26, except that during the

first year after March 24, 1972, persons having fewer than twenty-five employees (and
their agents) shall not be considered employers.”
42 U.S.C. § 2000e(b)(emphasis added). Pursuant to Local Rule 56.1 Colangelo admits that Local
110 did not have the requisite number of employees in 1999 and 2000 to proceed under 42
US.C. § 2000e-2(a). (RSF 8, 13, 15, 41, 42, 43 (improper denial)).

Although Colangelo indicates that she is proceeding solely under 42 U.S.C. § 2000e-2(c)
in her complaint, she nonetheless has included an argument in her answer brief in favor of the
applicability of 42 U.S.C. § 2000e-2(a). Colangelo argues that we should consider Local 110's
officers and board members to be employees under Title VII which would give Local 110 more
than the requisite number of employees necessary to be considered an employer under Title VII.

The Seventh Circuit rejected such an approach in Chavero v, Local 241.787 F.2d 1154,
1156 (7th Cir. 1986). The court stated that “[w]hile courts generally construe the term
‘employee’ broadly under all provisions of Title VII . . ., members of boards of directors are not
employees for purposes of Title VII coverage under any standards.” 787 F.2d at 1156. In
Chavero, the Seventh Circuit found that unless the individual board members of the executive
board perform traditional employee duties “the individual board members are not employees for

Title VII coverage”. Jd. at 1157.

Colangelo suggests this court apply an employee standard set forth recently by the Court



employees of a labor organization should get more or less protection under Title VII than
employees of other employers. The special concerns relating to a labor organization are
specifically addressed in 42 U.S.C. 2000e-2(c). See Barbrocky v. Jewel Food Co., 773 F.2d 857,
868-69 (7th Cir. 1985)(stating when a union can be held liable under Title VII § 2000c-2(c) for
discriminating against its members). Thus, we find that Colangelo cannot sue Local 110 in its
capacity as her employer under 42 U.S.C, 2000e-2(c). See Chavero, 787 F.2d at 1155
n.1(explaining that where a plaintiff attempts to hold a union liable in its employer capacity the
union must fall within the definition of an employer under Title VII). Therefore, we find that no
reasonable trier of fact could conclude that Local 110 had the requisite number of employees to
be deemed an employer under Title VII and Colangelo cannot sue Local 110 in its employer
capacity under 42 U.S.C. 2000e-2(c) and we grant summary Judgment for Local 110 in regards to
the discrimination claim against it in its capacity as Colangelo’s employer. We also find that,
since Local 110 is not deemed an employer under Title VII, Colangelo cannot proceed against
Local 110 in its capacity as her employer under the anti-retaliation section of Title VII, 42 U.S.C.

2000e-3(a), and we grant summary judgment on that claim as well.

IL Suit Against Local 110 in its Capacity as Labor Organization

Colangelo alleges that Local 110, when dealing with her as her union in regards to
referrals, discriminated against her after her termination because of her sex and retaliated against

her because she filed a charge of discrimination.


Minute @rder Form (06/97)

uv United States District Court, Northern District of Illinois
“7

Name of Assigned Judge _ i Sitting Judge If Other
or Magistrate Judge Samuel Der-Yeghiayan than Assigned Judge

CASE NUMBER 01 C9417 DATE 2/25/2004

CASE Colangelo vs. Motion Picture Projectionists
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:
qa
@)
3)
(4)
(5)
(6)
12)
(8)
(9)

Oo

Filed motion of [ use listing in “Motion” box above.]
Brief in support of motion due
Answer brief to motion due. . Reply to answer brief due.

Ruling/Hearing on set for at

Status hearing{held/continued to] [set for/re-set for] on set for at
Pretrial conference[held/continued to] [set for/re-set for] on set for at

Trial[set for/re-set for] on at

{Bench/Jury trial] [Hearing] held/continued to at

oogdaduooo Lo

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).

(0) =i [Other docket entry] For the reasons stated in the attached memorandum opinion, the Court hereby
grants defendant’s motion for summary judgment in its entirety. All pending dates and motions are hereby
stricken as moot. Terminating case. Enter Memorandum Opinion.

a) [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required. 5
a umber of notices

A-ab0

Notices mailed by judge’s staff.

Notified counsel by telephone.

oY | Docketing to mail notices. Judge's staff
distributed Memorandum Opinion.

Mail AO 450 form.

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Copy to judge/magistrate judge. os °

courtroom
MW deputy's
initials - ——
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ailing deputy initials



provides:

(a) Discrimination for making charges, testifying, assisting, or participating in
enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any
of his employees or applicants for employment, for an employment agency, or joint labor-
management committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any individual, or for a
labor organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful employment
Practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.
42 U.S.C.A. § 2000e-3(emphasis added). Colangelo has failed to offer sufficient evidence upon
which a reasonable trier of fact could find that she was not receiving referrals because she filed
an EEOC charge. The mere filing of an EEOC charge does not in and of itself prove retaliation if
an employee or in this instance a union member does not get what she wants. Colangelo must
point to sufficient evidence to support her theory of unlawful retaliation which she has not done.

Therefore, we grant summary judgment on the retaliation claim against Local 110 in its capacity

as the union of Colangelo.

ll


was inappropriate to contact Spano at home and he reasonably told her not to call her at home
about work matters. In regards to her termination, Colangelo admits that during her conversation
with Spano when she was terminated that she told Spano that she wanted to work and that he told
her to talk to Mr. Virgil. (D Ex D. at 89). Colangelo does not offer any indication that she asked
Mr. Virgil for a referral. (D. Ex D. at 89-93). Colangelo also admits that “in the past, in very
limited circumstances, the Union’s office workers had performed portable work, but that was
rare.” (RSF 93). Colangelo contests Local 110's claim that since 1988 there was a long
standing policy at Local 110 that office workers did not receive referrals. (R SF 93). However,
in support of her denial Colangelo can only point to one office worker that received a referral
during the ten years that Colangelo worked at Local 110. (R SF 93). Even if that were true, one
exception would not negate the fact that a policy was otherwise generally followed. Colangelo
admits that she did no more than request “work” and did not provide the union with her
qualifications or indicate her interests. (D Ex D. 82-89, 90-93, 130-31). In addition the affidavit
of Steve Altman, a former Union Steward indicates that it was important for a Steward to know a
member’s qualifications and availability in order to consider a member for a referral. Therefore,
no reasonable trier of fact could find that Local 110 unlawfully discriminated against her in its
capacity as her union and we grant summary judgment on the discrimination claim against Local

110 in its capacity as her union.

B. Retaliation as a Labor Organization

Colangelo claims that Local 110 retaliated against her because she filed her EEOC

complaint. In regards to unlawful retaliation in the context of a labor organization Title VII

10



subordinate to a national or international labor organization.
42 U.S.C. § 2000e(d). Thus, Title VII includes a specific section making certain practices by
labor organizations unlawful. 42 U.S.C. § 2000e-2(c). Unlike the definition of an employer the
definition of a labor organization in 42 U.S.C. § 2000e(d) does not require a minimum number of
employees or members. In order to circumvent the minimum number of employees requirement
Colangelo maintains that she can sue Local 110 as her employer under, 42 U.S.C. § 2000e-2(c)

which is the section dealing with labor organizations. It is true that 42 U.S.C. 2000e-

2(c) states that a labor organization cannot “exclude or to expel from its membership, or
otherwise to discriminate against, any individual” and that one could argue that the “or otherwise
discriminate” covers a situation where a labor organization employs the individual and
discriminates against the individual as her employer. However, such a conclusion would mean
that a special standard applies for labor organization employers under 42 U.S.C. 2000e-2(c).
Colangelo’s argument is without merit and defies a common sense reading of Title VII.
Clearly congress intended 42 U.S.C. 2000¢-2(a) which is defined as “employer practices” to deal
with an employer/employee relationship. On the other hand 42 U.S.C. 2000e-2(c) entitled “labor
organization practices” is intended to deal with the labor organization/union member
relationship. There is no logical reason why a labor organization must be governed for all
purposes under Section (c). Also, were we to read 42 U.S.C. 2000e-2 in the manner suggested by
Colangelo, the result would be a special standard applied exclusively to situations where an
employer is a labor organization. Colangelo has not provided any satisfactory reason for such a
distinction. See Chavero, 787 F.2d at 1155 n.1(indicating that Title VII does not suggest that

labor unions are to be treated any differently than other employers). There is no reason why

7


summary judgment the moving party must identify “those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 US. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by
presenting specific evidence on a particular issue or by pointing out “an absence of evidence to
support the non-moving party’s case.” Jd. at 325. Once the movant has met this burden, the non-
moving party cannot simply rest on the allegations in the pleadings, but, “by affidavits or as
otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a motion for summary
judgment is not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when "the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 248 (1986); Insolia v. Philip
Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole,
in a light most favorable to the non-moving party, and draw all reasonable inferences that favor
the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969,

972 (7th Cir. 2000).

DISCUSSION
Colangelo alleges sexual harassment and retaliation claims against Local 110 in its

capacity as her employer and in its capacity as her union.



personal appearance. Local 110 claims that in 2000 Colangelo’s work deteriorated and that she
was rude, insubordinate, and spent too much time at work dealing with personal matters. Spano
claims that he gave her several warnings regarding her poor work performance. According to
Spano, in May of 2000 Colangelo refused to shift duties to another office worker. On June 6,
2003 Colangelo was suspended. Local 110 claims that during the meeting Colangelo stated that
she would get revenge for the suspension. Colangelo claims that she was suspended to teach her
a lesson and to show her who was in charge and that Colangelo had been performing her work
satisfactorily. On the evening of the suspension Colangelo called Spano at home to complain
about the suspension and he told her not to call him at home. Colangelo allegedly again called
Spano at work regarding her suspension. On June 15, 2003 Spano allegedly told Colangelo to
accept a severance agreement or she would be terminated. Colangelo is suing in part alleging
that Local 110 discriminated against her because of her sex by not giving her job referrals. Local
110 contends that Colangelo never sought referrals from the union until her suspension at the
very earliest and that she never sought a referral through the proper channels, Colangelo has
brought the instant action alleging that Local 110 discriminated against her because of her sex
and retaliated against her because she filed a charge of discrimination in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000¢ et seq.

LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JODY COLANGELO, )
)

Plaintiff, y

)

v. ) No. 01 C 9417

)

MOTION PICTURE PROJECTIONISTS, )
OPERATORS & VIDEO TECHNICIANS, )
LOCAL 110, )
)

Defendant. )

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Motion Picture Projectionists, Operators &
Video Technicians, Local 110's (“Local 110") motion for summary judgment. For the reasons

stated below we grant the motion.

BACKGROUND
Local 110 represents employees employed as projectionists in movie theaters and
employees engaged in operating portable audio visual equipment at trade shows, conventions,
and similar gatherings. Plaintiff Jody Colangelo (“Colangelo”) worked for Local 110 from 1995
to June of 2000 as the Office Manager. Colangelo’s supervisor was Steve Spano (“Spano”).
Colangelo claims that beginning in 1999 Spano began making sexual advances to her on a

regular basis. Colangelo also accuses Spano of making inappropriate comments about her

fo

US


CONCLUSION
Based on the foregoing analysis we grant Local 110's motion for summary

judgment in its entirety.

Sark Ver. Bigham —

Samuel Der-Yeghiayan % VU
United States District Court Judge

Dated: February 25, 2004

12