Appendix — Furby v. United Auto Workers

APPENDIX A

Order Michigan Supreme Court

Entered: August 28, 1998 Lansing, Michigan

110388 (61) Conrad L. Mallet, Jr.

Chief Justice

DALE FURBY,

Plaintiff-Appellant, James H. Brickley

Michael F. Cavanagh

Vv Patricia J. Boyle

Elizabeth A. Weaver

UNITED AUTO WORKERS Marilyn Kelly

and CHRYSLER Clifford W. Taylor

CORPORATION, Justices

Defendant-Appellee.

SC: 110388

COA: 190429

LC: 94-418945-CL

On order of the Court, the motion for reconsideration of

this Court's order of June 29, 1998, is considered, and it is

DENIED, because it does not appear that the order was entered

erroneously.

1, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court,

certify that the foregoing is a true and complete copy of the

order entered at the direction of the Court.

August 28, 1998 /s/ Jacqueline B. MacKinnon

Deputy Clerk

10825

SEAL OF THE MICHIGAN SUPREME COURT

LANSING

la

APPENDIX B

Order Michigan Supreme Court

Entered: June 29, 1998 Lansing, Michigan

110388 Conrad L. Mallet, Jr.

Chief Justice

DALE FURBY,

Plaintiff-Appellant, James H. Brickley

Michael F. Cavanagh

Vv Patricia J. Boyle

Elizabeth A. Weaver

UNITED AUTO WORKERS _ Marilyn Kelly

and CHRYSLER Clifford W. Taylor

CORPORATION, Justices

Defendant-Appellee.

SC: 110388

COA: 190429

LC: 94-418945-CL

On order of the Court, the application for leave to

appeal is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by

this court.

I, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court,

certify that the foregoing is a true and complete copy of the

order entered at the direction of the Court.

June 29, 1998 /s/ Jacqueline B. MacKinnon

Deputy Clerk

C0623

SEAL OF THE MICHIGAN SUPREME COURT

LANSING

2a

APPENDIX C

Court Of Appeals, State of Michigan

ORDER

Michael are Smolenski

Dale Furby v United Auto Presiding Judge

Workers ~

Michael J. Kelly

Docket # 190429

Roman S. Gribbs

L.C. # 94-418945-CL

Judges

The Court orders that plaintiff's motion for rehearing is

DENIED.

STATE OF MICHIGAN

COURT OF APPEALS

A true copy entered and certified by Ella Wiiliams, Chief

Clerk, on

AUG 06 1997 /s/ Ella Williams

Date Chief Clerk

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APPENDIX D

STATE OF MICHIGAN

COURT OF APPEALS

DALE FURBY, UNPUBLISHED

Plaintiff-Appellant, May 30, 1997

Vv No. 190429

Wayne Circuit Court

UNITED AUTO WORKERS LC No. 94-418945-CL

and CHRYSLER

CORPORATION,

Defendants-Appellees.

Before: Smolenski, P.J., and Michael Kelly and Gribbs, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting

summary disposition to defendant Chrysler Corporation

("Chrysler") pursuant to MCR 2.116(C)(7) and (C)(10) and an

order granting summary disposition to defendant United Auto

Workers ("UAW") pursuant to MCR 2.116(C)(4), (C)(8), and

(C)(10). We affirm.

In 1972, plaintiff began working at Chrysler's Sterling

Stamping Plant. In 1986, plaintiff entered Chrysler's toolmaking

apprenticeship program. In 1987, plaintiffs supervisors

commented in monthly evaluations that he had performance

difficulties. During a reduction in force in August 1987, plaintiff

was laid off from the apprenticeship program and given an

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unskilled trade reassignment. Plaintiff was reassigned to the

apprenticeship program in March 1991, but again received poor

evaluations. In June 1991, Chrysler removed defendant from the

program and returned him to his former plant position, citing

poor performance as its reason.

Plaintiff appealed this decision pursuant to the grievance

procedure set forth in the Chrysler/UAW collective-bargaining

agreement. His appeal was denied. In late 1992, plaintiff filed

charges with the Michigan Civil Rights Commission ("MCRC")

and the Equal Opportunity Employment Commission

("EEOC"), alleging that Chrysler removed him from the

apprenticeship program because he is Caucasian. In July 1993,

the EEOC determined that plaintiff's removal was based on poor

performance.

In February 1994, plaintiff was suspended for failing to

be at his assigned job. In April 1994, plaintiff was verbally

warned for tardiness. In either May or June 1994, plaintiff was

told to work faster, and then chided for working too quickly

and endangering others. In August 1994, plaintiff was

suspended for allegedly making racial slurs and using abusive

language. Plaintiff also contends that Chrysler coerced him to

undergo psychological examinations.

On June 17, 1994, plaintiff, acting in pro per, filed a

claim against the UAW under the Michigan Handicappers' Civil

Rights Act ("MHCRA"), MCL 37.3101 ef seqg.; MSA

3.550(101) et seq., alleging that the unton failed to represent

him when Chrysler accused him of having a handicap. On

August 30, 1994, plaintiff filed a two-count amended complaint

against Chrysler and the UAW under the MHCRA, alleging (1)

that Chrysler and the UAW discriminated against him in

administering the apprenticeship program because he had a

"general anxiety disorder" and (2) that Chrysler retaliated

against plaintiff for filing his administrative complaints. The trial

court disposed of plaintiff's claims against Chrysler, concluding

that plaintiff failed to timely file his discrimination claim and

further failed to provide support for his retaliation claim. The

Sa

trial court also disposed of plaintiff's claim against the UAW on

the ground that it was preempted by federal labor law.

Plaintiff first argues that the trial court erred in granting

Chrysler's motion for summary disposition pursuant to MCR

2.116(C)(7), because he timely filed his discrimination claim.

We disagree.

MCR 2.116(C)(7) permits summary disposition of a

claim where it is barred by the applicable statute of limitations.

Home Ins Co v Detroit Fire Extinguisher Co, 212 Mich App

522, 527; 538 NW2d 424 (1995). When this Court reviews a

motion for summary disposition under MCR 2.116(C)(7), it

accepts as true the allegations in the well-pleaded complaint and

construes them in the plaintiff's favor. Kuebler v Equitable Life

Assurance Soc, 219 Mich App 1, 5; 555 NW2d 496 (1996).

The burden of establishing that a claim is barred by the

applicable statute of limitations normally rests with the party

asserting the defense. Jd. This Court reviews the decision to

grant summary disposition under MCR 2.116(C)(7) de novo.

Td.

The applicable statute of limitations mandates that a

plaintiff file his cause of action under the MHCRA within three

years of the alleged discrimination. MCL 600.5805(8); MSA

27A.5805(8); Janikowski v Bendix Co, 603 F Supp 1284, 1294

(ED Mich, 1985).' Chrysler removed plaintiff from the

apprenticeship program on June 21, 1991. Plaintiff filed his

discrimination claim against Chrysler on August 20, 1994,

approximately two months after the limitations period expired.

Therefore, the trial court did not err in granting Chrysler's MCR

2.116(C)(7) motion for summary disposition as to plaintiffs

discrimination claim, because it was barred by the applicable

statute of limitations. Home Ins, supra.

Plaintiff offers additional arguments concerning this

issue that deserve cursory attention. First, plaintiff contends that

his complaint against the UAW, which he filed on June 17,

1994, tolled the statutory limitations period with regard to his

handicap discrimination claim against Chrysler. However,

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plaintiff failed to name Chrysler as a party in his first complaint.

Thus, commencement of plaintiff's action against the UAW did

not toll the statute of limitations period as to his claim against

Chrysler, because plaintiff had yet to name Chrysler as a

defendant and effect proper service against the corporation

when he filed suit against the union. See MCL 600.5856(a);

MSA 27A.5856(a); Rodgers v Washtenaw Co, 209 Mich App

73, 75; 530 NW2d 118 (1995).

Second, plaintiff argues, without providing any support,

that Chrysler was or should have been put on notice of his claim

against it when he filed suit against the UAW. We refuse to

search out authority to sustain or reject plaintiff's unsupported

argument. See Magee v Magee, 218 Mich App 158, 161; 553

NW2d 363 (1996).

Third, plaintiff advances that his amended complaint

against Chrysler and the UAW should relate back to the date on

which he filed his original complaint against the UAW. An

amendment to a pleading generally relates back to the date of

the original filing if the claim or defense asserted in the amended

pleading arose out of the same transaction, conduct, or

occurrence set forth in the original pleading. MCR 2.118(D);

Hurt v Michael 's Food Center, Inc, 220 Mich App 169, 179;

559 NW2d 660 (1996). However, the relation back doctrine

does not extend to the addition of new parties. /d. Therefore,

the doctrine does rot apply here, because Chrysler was not

named as a party in plaintiff's original complaint.

Fourth, plaintiffadvances that the trial court should have

considered Chrysler's alleged discriminatory acts as part of a

"continuing violation" of the MCHRA. Plaintiff acknowledges

that his termination from the apprenticeship program took place

outside the limitations period, but contends that Chrysler's

subsequent refusals to reinstate him to this program, which

occurred within the limitations period, amounted to an ongoing

pattern of discrimination, thus making his filing timely. We do

not agree.

Pursuant to the continuing violations theory of

Ta

employment discrimination, a plaintiff may seek damages for

violations that occurred outside the statutory limitations period

if the violations are “continuing in nature" and at least one of

the discriminatory acts fell within the limitations period. Sumner

v Goodyear Tire & Rubber Co, 427 Mich 505, 528; 398 NW2d

368 (1986), reh den 428 Mich 1206 (1987). To show a

continuing violation, the plaintiff must show (1) a policy of

discrimination, (2) a continuing course of conduct, and (3) the

present effects of past discrimination. Bell v Chesapeake &

Ohio Railway Co, 929 F2d 220, 223 (CA 6, 1991). Before

making this showing, however, a plaintiff must also establish a

present violation, i.e. a discriminatory act within the limitations

period. /d.

Here, plaintiff has not made the preliminary showing of

a present violation. Plaintiff claims that he made repeated

request for reinstatement to the apprenticeship program that

Chrysler repeatedly denied. However, he does not allege that

Chrysler denied his requests for reinstatement because of his

alleged handicap. Indeed, by the terms of the Chrysler/UAW

collective bargaining agreement, plaintiff was not eligible for

reinstatement to the apprenticeship program for a neutral

reason, i.e. because he was terminated for cause. Because

plaintiff has not shown a present violation, he is unable to

invoke the continuing violations theory to circumvent the three-

year statute of limitations for his handicap discrimination claim

against Chrysler. United Air Lines, Inc v Evans, 431 US 553,

558; 97 S Ct 1885, 1889; 52 L Ed 2d 571, 578-579 (1977);

Sumner, supra at 527.

Next, plaintiff argues that the trial court erred in

granting Chrysler's motion for summary disposition pursuant to

MCR 2.116(C)(10), because he succeeded in establishing the

existence of genuine issues of material fact regarding his

retaliation claim against the corporation. We disagree.

MCR 2.116(C)(10) permits summary disposition of a

claim where except to the amount of damages, there is no

genuine issue of material fact and the moving party is entitled to

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judgment as a matter of law. In reviewing a trial court's decision

regarding an MCR 2.116(C)(10) motion for summary

disposition, this Court examines all relevant affidavits,

depositions, admissions, and other documentary evidence and

construes the evidence in favor of the nonmovingparty. Stevens

v Inland Waters, Inc. 220 Mich App 212, 214; 559 NW2d 61

(1996). We then determine whether a genuine issue of material

fact exists on which reasonable minds could differ. Jd. We

review de novo the trial court's grant or denial of a motion for

summary disposition. /d.

The Elliott-Larsen Civil Rights Act ("ELCRA"), MCL

37.2101 et seg.; MSA 3.548(101) et seq.,” prohibits employers

from retaliating against an employee for making a charge, filing

a complaint, testifying, assisting, or participating in an

investigation, proceeding, or hearing under the act. MCL

37.2701; MSA 3.548(701); McLemore v Detroit Receiving

Hospital, 196 Mich App 391, 395-396; 493 NW2d 441 (1992).

To establish a prima facie case of retaliation under the ELCRA,

the plaintiff must establish: (1) that he opposed violations of the

ELCRA or participated in activities protected by the act, and

(2) that the opposition or participation was a "significant factor"

in the adverse employment decision. Booker v Brown &

Williamson Tobacco Co, 879 F2d 1304, 1310 (CA 6, 1989).

For the protected activity engaged in by a plaintiff to be

considered a "significant factor," the plaintiff must show that it

was one of the reasons motivating the adverse treatment. See

Polk v Yellow Freight Systems, Inc. 876 F2d 527, 531 (CA 6,

1989). The mere fact that adverse treatment follows the

employee's protected act, however, is insufficient to establish

retaliation under the ELCRA. Booker, supra at 1314.

Here, plaintiff based his claim of retaliation on the mere

fact that he received adverse treatment after he lodged

complaints of racial discrimination with the EEOC and the

MCRC. This is insufficient to establish retaliation under the

ELCRA. /d. Further, although plaintiff testified at his deposition

that Chrysler subjected him to unprecedented disciplinary action

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because he was "making waves," plaintiff merely supported this

assertion with his own speculation and conjecture, which is

insufficient to oppose an MCR 2.116(C)(10) motion for

summary disposition. Libralter Plastics, Inc v Chubb Group of

Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993).

Accordingly, we conclude that the trial court did not err in

granting Chrysler's motion for summary disposition as to

plaintiffs claim of retaliation under the ELCRA, because plaintiff

failed to submit evidence to support his assertion that Chrysler

retaliated against him for filing complaints under the act.

Finally, plaintiff argues that the trial court erred in

granting the UAW's motion for summary disposition pursuant

to MCR 2.116(C)(4) on the ground that federal law preempted

his employment discrimination claim against the union, because

the union was actually plaintiffs "employer" in the

apprenticeship program and, thus, resolution of his claim does

not require our interpretation of the collective-bargaining

agreement between Chrysler and the UAW. We do not agree.

This Court reviews de novo as a question of law an

order granting or denying summary disposition pursuant to

MCR 2.116(C)(4). Steele v Department of Corrections, 215

Mich App 710, 712; 546 NW2d 725 (1996). When reviewing

a motion for summary disposition under MCR 2.116(C)(4), we

must determine whether the pleadings demonstrate the plaintiff

is entitled to a judgment as a matter of law, or whether the

affidavits and other proofs show that there was no genuine issue

of material fact. Jd.

The authority of Congress to preempt state law is rooted

in the Supremacy Clause of the United States Constitution. US

Const, Art VI, § 2; Betty v Brooks & Perkins, 446 Mich 270,

276; 521 NW2d 518 (1994). Generally, federal law preempts

MHCRA claims brought against unions for their failure to

adequately represent handicapped employees. See 29 USC

185(A); Lowe v Ford Motor Co, 186 Mich App 675, 677-678;

465 NW2d 59 (1990). Application of state law in the area of

labor relations is preempted where the application requires the

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Bride

interpretation of a collective bargaining agreement. Lingle v

Norge Div of Magic Chef, Inc, 486 US 399, 413; 108 S Ct

1877, 1884; 100 L Ed 2d 410, 423 (1988).

Here, plaintiff does not allege that the union failed in its

duty of representation on the basis of his alleged handicap.

Rather, plaintiff claims that the UAW jointly administered the

apprenticeship program with Chrysler, acted as the equivalent

of plaintiffs employer, and thus violated the MHCRA by

excluding him from the program because of his alleged

handicap. Therefore, plaintiff contends, whether the union

discriminated against him in violation of the MHCRA involves

a mere factual determination applicable to any other

employment discrimination action, and not interpretation of the

collective bargaining agreement. However, plaintiff has not

submitted evidence to support his assertion that the union acted

as his employer in the apprenticeship program. Indeed, we can

only decide this issue by interpreting the collective-bargaining

agreement between Chrysler and the UAW, which we may not

do. Jd. Because plaintiff has failed to establish that federal law

does not preempt his handicap discrimination claim against the

union, we conclude that the trial court did not err in granting

the UAW's motion for summary disposition pursuant to MCR

2.116(C)(4).

Affirmed.

/s/ Michael R. Smolenski

/s/ Michael J. Kelly

/s/ Roman S. Gribbs

' We acknowledge that federal cases are not binding on this

Court. However, we do consider them to be persuasive

authority with regard to discrimination cases. See Lytle v

Malady, 209 Mich App 179, 184-185; 530 NW2d 135

(1995), 1v gtd 451 Mich 920; 550 NW2d 535 (1996).

lla

* Although plaintiff's complaint asserts that Chrysler retaliated

against him for filing complaints concerning alleged handicap

discrimination with the EEOC and the MCR, plaintiff actually

filed complaints with these agencies for alleged racial

discrimination. Therefore, we address this issue as arising under

the ELCRA, and not the MHCRA.

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APPENDIX E

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

DALE K. FURBY,

Plaintiff,

Case No. 94-418945-CI

V. Hon: William J. Giovan

UNITED AUTO WORKERS, and

CHRYSLER CORPORATION,

Defendants.

GREGORY S. MUZINGO (P-29914)

MARGUERITE A SUMA (P-34373)

Office of the General Counsel

Chrysler Corporation

Attorneys for the Defendant

120000 Chrysler Drive

Highland Park, MI 48288 - 1919

(313) 252-8590/956-5804

DONALD N. PERKINS (P 49006)

Attorney for Plaintiff

2 Crocker Blvd.

Suite 301

Mount Clemens, MI 48034

(810) 465-6000

ORDER GRANTING DEFENDANTS

MOTION FOR SUMMARY DI ITION

at a session of said Court held in the

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City County Bldg., in the City of Detroit,

County of Wayne, State of Michigan

on Oct 25, 1995

PRESENT: HON. WILLIAM J. GIOVAN

Wayne County Circuit Court

This matter having come on for hearing on September

15, 1995; the court having received briefs from both parties;

having heard the arguments of counsel; and been otherwise fully

advised in the premises;

IT IS HEREBY ORDERED that Count I of plaintiff's

amended complaint is dismissed for failure to comply with the

statute of limitations;

IT IS HEREBY FURTHER ORDERED that Count II

of plaintiff's complaint alleging retaliation be dismissed pursuant

to 2.116 (C) (10).

Therefore, this case is dismissed in its entirety.

IT IS SO ORDERED.

WILLIAM J. GIOVAN

CIRCUIT COURT JUDGE

A TRUE COPY

TEOLA P. HUNTER

WAYNE COUNTY CLERK

BY /s/

DEPUTY CLERK

Approved As to Form,

Notice of the Entry Waived

/s/ DONALD N. PERKINS (P 49006)

/s/ MARGARET A. SUMA (P 34373)

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APPENDIX F

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

DALE FURBY,

Plaintiff,

Case No. 94-418945-CL

CHRYSLER CORPORATION,

Defendant.

DEFENDANT'S MOTION FOR SUMMARY DISPOSITION

Proceedings taken in the above entitled matter before

the Hon. William J. Giovan, Judge of the Circuit Court for the

County of Wayne, State of Michigan, on September 15, 1995.

APPEARANCES:

Donald N. Perkins

Attorney at Law

Appearing on behalf of plaintiff

Margaret A. Suma

Attorney at Law

Appearing on behalf of defendant

Martin A Friedman (CSMR 0045)

Official Court Reporter

MR. PERKINS: Yes, Your Honor. The defendant has

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taken an evolving position in the matter. Their initial position

was that, quoting Robson, that the statute of limitations began

running from the first instance of discrimination. We pointed out

in our answer to that that they had neglected to point out that

Robson was overruled on that very point by Sumner. Sumner

was actually three cases, one of which was Robson. Sumner

was the first case noted in the caption, Robson was the second,

and then there was a third.

And Sumner pointed out clearly that the statute of

limitations on Michigan handicap act complaints will run from

the last or most recent violation, not the first. And the rationale

for that set forth a number of policy reasons, quoted the federal

government Congressional Report as to why they did that,

because it was a remedial statute designed to correct

discrimination. The people that were making complaints under

it typically were not always aware of the statutes of limitation.

Sometimes they went to their union as was the case and the

union took a long time to act.

And so to remedy complaints under the handicapper's

act from being thrown out on procedural grounds, Sumner set

forth a clear policy overruling their -- reversing their case that

the statute of limitations would only run from the -- or could

start running from the last incident of violation, not the first.

Now, Mr. Furby was kicked out of or terminated from

the program in nineteen ninety one. He appealed his termination

on February fifth -- or his appeal was rejected by Chrysler on

February fifth, nineteen ninety two. And Robson said that well

the appeal doesn't count, but Robson was reversed and even if

you take when his appeal was finally denied it fits within the

three year statute of limitations.

THE COURT: How about the appeal? Does that

qualify?

MS. SUMA: No, it doesn't and I'll tell you the reason it

doesn't, Your Honor, is because -- and counsel appropriately

points out that Robson was, in fact, altered by Sumner. But if

we look to Sumner to determine when the continuing violation

l6a

a

theory is applicable, it's exactly -- it's interesting because the

note here exactly what we're talking about. It says defendant is

correct in pointing out that mere requests far consideration do

not revive an untimely cause of action. And that's all you have

here, is a request for reconsideration.

This is not the sort of fact where someone's in the plant

and is claiming he's being harassed and the harassment continues

and six months later there's another comment made and six

months after that there's another comment made, so that it's a

continuing policy.

You have a single discrete act by the corporation of

removing him. It is not repetitive conduct, such as the

harassment type theory. And I say that Sumner specifically

directs this sort of factual instance.

MR. PERKINS: Well, that is factually incorrect, Your

Honor. The discrimination against Mr. Furby has not been

confined to a single discrete act. It has extended beyond Mr.

Furby's -- not only his appeal of that, but also his presentation

in nineteen ninety three when he was first diagnosed as having

a protected handicap. And that was presented to Chrysler

Corporation and they still refused to admit him into the

program.

And, in fact, last month Mr. Furby attempted to re-enter

the apprenticeship program. He actually attended the classes,

took the test, and when he got his test results back after that he

was informed by Chrysler that since he had been ejected from

the -- terminated from the program the first time, that he wasn't

going to be allowed to go back in. So, there have been specific

instances of discrimination and specific denial of his attempts to

get into the apprenticeship program as late as last month.

And certainly from the time he presented to them the

doctor's diagnosis that he suffered from a protected handicap,

that was in nineteen ninety three, and he filed his complaint and

included Chrysler clearly three years from nineteen ninety three

when that was presented to Chrysler.

THE COURT: The continuing violations theory was

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developed for the purpose of addressing exactly that, continuing

violations. And the reason the theory was developed was

because where there are a series of violations of the same

nature, you have to make a decision somewhere whether the

statute begins to run from the first act or the last one. Because

someone could claim, I suppose, that you know if he's harassed

that there's a cause of action that the first time that they're

harassed and if they don't bring action within three years, then

they're out of court.

Well, this doctrine was developed to accommodate in

pursuance of the objects of the act to accommodate those

people who are subject to repeated violations of the same kind.

And they say no, it's the last act.

That's not what's involved in the case at bar. He was

only discharged -- terminated once, and he was never

readmitted. He was not discharged the second time. There was

nothing to revive. The act complained of occurred in nineteen

ninety one. The bare fact that he asked for a reversal of that, for

Chrysler to change their minds about that act, doesn't revive the

statute of limitations because if that were the rule, he could

revive it today by asking 'to be put back into the program and

then bring another action three years from now.

This is dispositive, I believe, and the motion is granted.

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APPENDIX G

STATE OF MICHIGAN

IN THE WAYNE COUNTY CIRCUIT COURT

DALE FURBY,

Plaintiff

V. 94-418945-CL 6/17/94

JDG: WILLIAM J. GIOVAN

UNITED AUTO WORKERS, FURBY DALE K.

AND CHRYSLER VS

CORPORATION, UAW INTERNATIONAL

Defendants. UNION

ORDER OF SUMMARY DISPOSITION

At a session of said Court

in Detroit, Wayne County, Michigan

on February 17, 1995

present: Hon. William J. Giovan

This matter having come before the court on motion by

Defendant International Union, UAW, argument having been

hand in open court and the Court being fully advised in the

premises;

IT IS HEREBY ORDERED that all claims against

Defendant International Union, UAW are dismissed with

prejudice for the reasons indicated on the record.

WILLIAM J. GIOVAN

Circuit Court Judge

A TRUE COPY

TEOLA P. HUNTER

WAYNE COUNTY CLERK

BY /s/

DEPUTY CLERK

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APPENDIX H

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

DALE FURBY,

Plaintiff,

-VS- Case No. 94-418-945-CZ

UNITED AUTO WORKERS, AND CHRYSLER

CORPORATION,

Defendants.

DEFENDANT UAW'S MOTION FOR SUMMARY

DISPOSITION

Proceedings had in the above-entitled matter before the

HONORABLE WILLIAM GIOVAN, Wayne County

Circuit Court Judge at the City-County Building, Courtroom

1511, Detroit, Michigan, 48226 on Friday, February 17, 1995.

APPEARANCES:

MILILER & SHENSKY, P.C.

1400 Woodward - Suite 203

Bloomfield Hills, Michigan 48303

(By RICHARD A. MEIER, ESQ., P38204)

Appearing on behalf of Plaintiff Dale Furby

U A W INTERNATIONAL UNION

8000 Jefferson Avenue

Detroit, Michigan 48214-2699

20a

(By CONNYE Y. HARPER, ESQ., P26448)

Appearing on behalf of the Defendant United Auto Workers

REPORTED BY: MS. IRENE J. MARTIN, CSHR 4879

(313-963-6448)

MR. MEIER: Your Honor, what we are alleging, and

what we have done in our brief is state that this cause of action,

the Michigan Handicapper is what the call an independent state

right.

The Courts in Allis-Chalmers and Smolerek from the

Sixth Circuit have all indicated that the Proper analysis for any

kind of claim to determine whether preemption occurs under

Section 301 is to look at the complaint.

I filed with the Court a copy of the complaint. If, in fact,

the complaint alleges an independent state right, no preemption

is required by this Court.

If, in fact, the complaint alleges some kind of

interpretation of the collective bargaining agreement, then in

that particular case, then preemption is required.

In this case what we are alleging and what we have

indicated in our Complaint -- and there is nothing in the

Complaint that indicates anything about a collective bargaining

agreement.

What we are alleging is that UAW as a joint

administrator of a program, which they have admitted in their

answer, terminated the plaintiff.

And he is alleging, just like as if the UAW were an

employer, he is alleging a violation under the Michigan

Handicapper Act.

What he is alleging is that he has a handicap which is

nerve disease. He has indicated that.

I have provided documents to this Court that on two

separate evaluations, that nerve disease was mentioned by the

person doing the evaluation. The Plaintiff was ultimately

2la

terminated from the program.

His only claim in his complaint against the UAW is a

Michigan Handicapper claim. There is nothing in the claim

alleges any kind of violation of the collective bargaining

agreement.

Now, obviously the Defendant wants to raise it as a

defense which is her right. However, that would not go toward

any kind of preemption of this claim.

Therefore what we are alleging is basically if, in fact, he

is limiting his case to the Michigan Handicapper's Act, he has an

independent cause of action in this particular case. And

therefore preemption is not necessary.

THE COURT: He says the UAW took the position of

an employer; occupied the position of an employer in this.

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APPENDIX I

[Excerpts from Plaintiffs Amended Complaint]

7. Said program was jointly administered by the UAW.

10. On June 21, 1991 plaintiff was removed from the

apprenticeship program by Chrysler Corporation. The

UAW affirmed the dismissal.

[Excerpt's from UAW's Answer to Complaint]

; Defendant admits the allegations of paragraph seven.

10. Defendant admits the allegations of paragraph ten and

affirmatively states that plaintiff was removed due to his

poor job performance.

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