Opposition Brief — Dabish v. DaimlerChrysler Corp. (No. 05-1373)

3 FILED

No. 05-1373

- Sky-2-8-s9p—

IN THE OFFICE OF THE CLERK

Supreme Court of the Hnted Seater

JOYCE ANN DABISH,

Petitioner,

v.

DAIMLERCHRYSLER CORPORATION, INTERNATIONAL

UNION, UNITED- AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA;

STERLING STAMPING PLANT; UNITED AUTOMOBILE

WORKERS LOCAL 1264,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

DAIMLERCHRYSLER CORPORATION

RICHARD M. TuyNn

Counsel of Record

Lisa S. LANE

CatTeL, Tuyn & RupDZEwicz

33 Bloomfield Hills Parkway

Suite 120

Bloomfield Hills, MI 48304

(248) 593-6400

Attorneys for Respondent

DaimlerChrysler Corporation

201366 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

Did the Sixth Circuit Court of Appeals properly deny

Plaintiff's motion to remand the lawsuit to the District Court?

i

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent DaimlerChrysler Corporation, a Delaware

Company, is a wholly owned subsidiary of DaimlerChrysler

Motors Company LLC, a Delaware company, which is a

wholly owned subsidiary of DaimlerChrysler North America

Holding Corporation, a Delaware company, which is a wholly

owned subsidiary of DaimlerChrysler AG, a German

Corporation whose stock is publicly traded.

DaimlerChrysler AG owns all of the stock of

DaimlerChrysler North America Holding Corporation, which

is the sole member of DaimlerChrysler Motors Company.

LLC, which owns all of the stock of DaimlerChrysler

Corporation.

iit

TABLE OF CONTENTS

CIR skee kee RED 4 os Wace se Ke haces

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT

PRIEAe GUE 5 6 Sainte NEA Oke 2 ae

REASONS FOR DENYING THE PETITION .....

ADE Rs he ast oe OES LE oe

Page

il

lV

iv

TABLE OF CITED AUTHORITIES

Page

Cases: ;

Abou-Sakher v. McCoy,

2000 U.S. App. LEXIS 26060 (6" Cir. 2000) ... 7

Bovee v. Coopers & Lybrand C.P.A.,

Eva ee Saw Cr . GOOE) 8 oc Sens wc cw cus 5

Brandenburg v. Beaman,

Re Fume EeePC Ga PD es Sew A Nn erwa ees 7

Dabish v. Merit Systems Protection Board,

Fee eee Ses COO. Ce TIGR og oe a et 7

Dabish y. Chrysler Corp..,

498 U.S. 944, 111 S. Ct. 356,

bee ee Pi) eae Parner 7

Dabish y. Chrysler Motors Corp.,

498 U.S. 802, 111 S. Ct. 29,

rg Sh eS fe. | eer er eminem enenrare 7

Dabish v. DaimlerChrysler Corporation,

Se ee ee a, A) eee kata ee ewe 7

Dabish v. Chrysler Corp.,

498 U.S. 1042, 111 S. Ct. 716,

EEG Be ee PORE PRED hg ones Seabees heen 7

Father & Sons Lumber & Supplies, Inc. v. NLRB,

i gS ak ie. |) re 4

Cited Authorities

Page

Fields v. County of Lapeer,

2000 U.S. App. LEXIS 29182

Or Ma GEE ws oa kc wee we ee oe eee 7

First Nat'l Bank v. Hirsch,

wae eee ae tee Ge, Pere) hckk cake 5

Haines v. Kerner,

404 U.S. 519, 92 S. Ct. 594,

Pe, Ce. ES CNET a eae eee eae 7

Statutes:

ead es on oc nd ee eee |

ee Ris asa a ee ees 3

Rules:

Pe ees Ra oD. 6 CLxveaawc eek eee 2, 4, 5.6

Ue: aT AD kas kN Sa Ree ee ae ees i

vi

TABLE OF APPENDICES

Appendix A — Order Of The United States Court

Of Appeals For The Sixth Circuit Filed September

SN is a ine dh VASE RE EN We MSE Sd es WES

Appendix B — Order Of The United States District

Court For The Eastern District Of Michigan,

Southern Division Denying Plaintiff's Motion To

Remand Dated May 25, 2005 ................

Appendix C — Order Of The United States Court

Of Appeals For The Sixth Circuit Filed April 13,

Eas hea weatS kane. 5k ar el when aes

Appendix D — Order Of The United States Court

Of Appeals For The Sixth Circuit Filed February

De ek ear ely at hae pb a ochre

Appendix E — Opinion And Order Of The United

States District Court For The Eastern District Of

Michigan, Southern Division Granting Defendants’

Motion For Summary Judgment Dated March 31,

eee bakes nlc Veen k nete o 4 sie RK OS

Appendix F — Judgment Of Dismissal Of The

United States District Court For The Eastern

District Of Michigan, Southern Division Dated

NE I I aa. 5 3) ON Sn bial kPa ack ns eres

l

OPINIONS BELOW

The September 19, 2005 Order of the United States Court

of Appeals for the Sixth Circuit is unreported, and is attached

hereto as page la of the Appendix to the Brief in Opposition

to the Writ of Certiorari. The Order of the United States

District Court for the Eastern District of Michigan dated May

25, 2005 is unreported and is attached hereto as pages 2a-Sa

of the Appendix. The Order of the United States Court of

Appeals for the Sixth Circuit dated April 13, 2005 is

unreported and is attached hereto as page 6a of the Appendix.

The Order of the United States Court of Appeals for the Sixth

Circuit dated February 9, 2005 is unreported and attached

hereto as pages 7a-8a of the Appendix. The Opinion and

Order of the United States District Court for the Eastern

District of Michigan dated March 31, 2004 is unreported and

attached hereto as pages 9a-32a of the Appendix. The

Judgment of the District Court dated March 31, 2004 is

unreported and attached hereto as page 33a of the Appendix.

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1). The Sixth Circuit Court of Appeals issued its last

decision on September 19, 2005. Plaintiff's Petition for Writ

of Certiorari was filed on December 16, 2005, and docketed

on April 28, 2006. '

1. The Petition was returned several times to correct

deficiencies.

2

RULES INVOLVED

Rule 60(b) of the Federal Rules of Civil Procedure

[Relief from Judgment or Order] provides:

(b) Mistakes; Inadvertence; Excusable

Neglect; Newly Discovered Evidence; Fraud, etc.

On motion and upon such terms as are just, the

court may relieve a party or a party’s legal

representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due

diligence could not have been discovered in time

to move for a new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct

of an adverse party; (4) the judgment is void;

(5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or

it is no longer equitable that the judgment should

have prospective application; or (6) any other

reason justifying relief from the operation of the

judgment. The motion shall be made within a

reasonable time, and for reasons (1), (2). and (3)

not more than one year after the judgment, order,

or proceeding was entered or taken. A motion

under this subdivision (b) does not affect the

finality of a judgment or suspend its operation.

This rule does not limit the power of a court to

entertain an independent action to relieve a party

from a judgment, order, or proceeding, or to grant

relief to a defendant not actually personally

3

notified as provided in Title 28, U.S.C., § 1655,

or to set aside a judgment of fraud upon the court.

Writs of coram nobis, coram vobis, audita querela,

and bills of review and bills in the nature of a bill

of review, are abolished, and the procedure for

obtaining any relief from a judgment shall be by

motion as prescribed in these rules or by an

independent action.

STATEMENT OF THE CASE

Plaintiff Petitioner Joyce Dabish (“Plaintiff”) filed the

underlying lawsuit against Defendant Appellee Daimler

Chrysler (“Defendant”), and the UAW, pro se on June 26,

2002. Plaintiff subsequently retained legal counsel, who

thereafter filed a First Amended Complaint on October 21,

2002, alleging Breach of Contract against DaimlerChrysler

(Count I), Breach of Fiduciary Duty against DaimlerChrysler

under ERISA (Count II), Breach of Contract and Breach of

Fiduciary Duty against the UAW (Count III) under Section

301 of the LMRA and ERISA, and Wrongful Termination

Against Public Policy against DaimlerChrysler under

Michigan common law (Count IV).

In her suit, Plaintiff alleged that she was wrongfully

terminated from employment in 2002 when Defendant

accepted, and honored, her written acceptance of retirement

pursuant to an Incentive Program for Retirement (IPR)

offered to Plaintiff and hundreds of other employees at the

DaimlerChrysler Plant where Plaintiff worked. The IPR

clearly and unambiguously stated that an employee's

acceptance of retirement under the IPR was “irrevocable.”

4

Plaintiff's deposition was taken by Defendant

DaimlerChrysler on December 5, 2002. No other discovery

was conducted, and discovery closed on January 31, 2003.

Defendant DaimlerChrysler filed a Motion for Summary

Judgment on February 28, 2003. Defendant UAW filed a

Motion for Summary Judgment on March 4, 2003. By

Opinion and Order dated March 31, 2004, the District Court

granted Defendants’ Motions, and dismissed the case.

Judgment was also entered on March 31, 2004. Appx. pp.

9a-33a. It should be noted that Plaintiff, in her Writ herein,

changed the date of the District Court’s Opinion and Order

by typing in the date of “May 31, 2004,” which is clearly

incorrect, and improper.

In her appeal to the Sixth Circuit from the judgment of

the District Court, Plaintiff moved to remand the case to the

District Court on the grounds that she had received

inadequate legal counsel. The Sixth Circuit ruled that “there

is no Sixth Amendment right to counsel in a civil case,” citing

Father & Sons Lumber & Supplies, Inc. v. NLRB, 931 F.2d

1093, 1097 (6" Cir. 1991). Nor could Plaintiff obtain counsel

under the Fifth Amendment in the absence of government-

initiated action. The Sixth Circuit therefore denied Plaintiff's

motion to remand by Order dated February 9, 2005. Appx.

p. 7a.

Plaintiff thereafter filed a motion for reconsideration of

the Sixth Circuit's February 9, 2005 Order, again seeking

remand to the District Court in order to conduct discovery

and obtain additional evidence. By Order dated April 13,

2005, the Court ruled that “A party seeking to have a district

court vacate its decision while the case is on appeal must

initially file a Federal Rule of Civil Procedure Rule 60(b)

5

motion in the district court,” citing Bovee v. Coopers &

Lybrand C.P.A., 272 F.3d 356, 359 n.1 (6" Cir. 2001); First

Nat’! Bank v. Hirsch, 535 F.2d 343, 346 (6" Cir. 1976). The

Court noted that Plaintiff “has not followed this procedure,”

and again denied her Motion. Appx. p. 6a.

On or about May 11, 2005, Plaintiff filed her alleged

Rule 60 (b) Motion to Remand with the District Court. The

District Court denied the Motion on May 25, 2005, ruling

that not only was Plaintiff's Motion untimely, but it had no

merit under Rule 60(b). Appx. p. 2a. On June 15, 2005,

Plaintiff appealed that decision back to the Sixth Circui®

which appeal remains pending. “ |

In the interim, on September 19, 2005, the Sixth Circuit

denied a third motion from Plaintiff seeking to remand to

the District Court on the basis that she received inadequate

legal representation. In denying the Motion, the Court placed

Plaintiff on notice that she would be subject to sanctions if

she raised this issue again. Appx. p. la.

Plaintiff has now filed a Petition for Writ of Certiorari,

challenging the Sixth Circuit’s alleged failure to inform her

in February 2005 that, in order to remand the case, she needed

to file a Rule 60(b) Motion with the District Court. Plaintiff

takes issue with the allegedly dilatory notice of this fact from

the Sixth Circuit, as it caused her to miss the one year

deadline for filing a Rule 60(b) motion after the judgment

was entered on March 31, 2004, which, she contends, denied

her due process.

6

REASONS FOR DENYING THE PETITION

Plaintiff's Petition for Writ of Certiorari places

Defendant in the unique position of having to defend the

decisions of the Sixth Circuit issued in this case in 2005.

Plaintiff's Writ does not take issue with any action of

Defendant pertaining to her former employment, nor does

she contest the initial ruling of the District Court which

granted Summary Judgment on the merits to Defendant in

March 2004. Plaintiff's Writ can best be described as a

procedural challenge to the way in which the Sixth Circuit

denied her various motions and appeals to remand her lawsuit

to the District Court. Specifically, in her Petition for Writ of

Certiorari, Plaintiff sets forth four (4) “Questions Presented

For Review,” each of which is essentially a different version

or re-statement of Plaintiff's singular argument, that the Sixth

Circuit allegedly denied Plaintiff “due process” by not

informing her in its February 9, 2005 Order that, to properly

seek a remand of her lawsuit back to the District Court, she

inust file a Rule 60(b) Motion with the District Court. The

crux of Plaintiff's complaint herein is that the Sixth Circuit

waited until April 13, 2005 to inform her that she needed to

file said Motion,’ approximately two weeks after the one year

deadline for filing said motions had expired.

Plaintiff has no legal basis for her Petition. There is no

case law, court rule or other authority requiring a federal

appeals court to specifically inform a party, even a pro se

plaintiff, of the applicable court rules or the procedures

available for remanding a civil action to the District Court.

Pro se litigants are not excused from knowing or following

2. Plaintiff did not attach to her Writ a copy of either the

February or April 2005 Opinions.

the applicable court rules. Although pro se litigants are

generally held to a less stringent standard than attorneys,

requiring a litigant to comply with the court rules does not

deprive her of her right of access to the courts. Abou-Sakher

v. McCoy, 2000 U.S. App. LEXIS 26060 (6" Cir. 2000),

relying on Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.

594, 30 L. Ed. 2d 652 (1971). See also, Fields v. County of

Lapeer, 2000 U.S. App. LEXIS 29182 (6" Cir. 2000), citing

Brandenburg v. Beaman, 632 F.2d 120, 122 (10" Cir. 1980)

(“it is incumbent on litigants, even those proceeding pro se,

to follow the ... rules of procedure.”). Plaintiff would not

have been denied “due process,” as she claims, had she

followed the court rules. /d.

In addition, Plaintiff has retained the right, throughout

all of this litigation, to hire a lawyer familiar with the court

system, including appeals and procedures for post-judgment

relief. Moreover, Plaintiff is hardly a novice to civil litigation,

and has been filing pleadings pro se with various courts,

including this one, for several years. Dabish v. Chrysler

Corp., 498 U.S. 1042, 111 S. Ct. 716, 112 L. Ed. 2d 705

(1991); Dabish v. Chrysler Corp., 498 U.S. 944, 111 S. Ct.

356, 112 L. Ed. 2d 319 (1990); Dabish v. Chrysler Motors

Corp., 498 U.S. 802, 111 S. Ct. 29, 112 L. Ed. 2d 8 (1990);

Dabish v. DaimlerChrysler Corporation, 902 F.2d 32

(6" Cir. 1990); Dabish v. Merit Systems Protection Board,

746 F.2d 1491 (Fed. Cir. 1984). Defendant, therefore, is

entitled to presume that Plaintiff possessed at least a working

knowledge of the applicable court rules.*

No compelling reasons exist for granting the Petition

for Writ of Certiorari. The case presents no unique issues of

3. Plainuff is college-educated.

8

fact or law and no issues of “first impression.” Nor does there

exist any conflict with decisions of this Court, with the Sixth

Circuit or other Courts of Appeal, or even between the District

Court and the Sixth Circuit, that would require resolution by

this Court. While Plaintiff is unhappy with the legal

representation she received in the lower court proceedings, and

presumably unhappy with the judgment of the District Court

dismissing her case, a mere unfavorable result is not subject to

appeal in the federal courts, and provides no compelling reason

to grant Plainuff's Petition for Writ of Certiorari. Plainuff's

underiying claims of wrongful discharge have already been

litigated and decided on the merits, and she presents no

legitimate or compelling reason now to revisit those claims.

The Sixth Circuit did not deny Plaintiff due process, nor did it

abuse its discretion by issuing its February 9, 2005 Order.

Plaintiff has no viable claim for relief under the Sixth

Amendment to the Constitution, where the Amendment applies

only to criminal cases.

9

CONCLUSION

For the foregoing reasons, Defendant and Respondent,

DaimlerChrysler Corporation, respectfully requests the Petition

for Writ of Certiorari be denied.

Respectfully submitted,

RicHARD M. Tuyn

Counsel of Record

Lisa S. Lane

CaTTEL, TUYN & RuDZEWICZ

33 Bloomfield Hills Parkway

Suite 120

Bloomfield Hills, MI 48304

(248) 593-6400

Attorneys for Respondent

DaimlerChrysler Corporation

APPENDIX

la

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED SEPTEMBER 19, 2005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-1583

JOYCE ANNE DABISH,

Plaintiff-Appellant,

Vi

DAIMLERCHR YSLER CORPORATION; INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA;

STERLING STAMPING PLANT UNITED AUTOMOBILE

WORKERS LOCAL 1264,

Defendants-Appellees.

Before: KENNEDY, CLAY, and GIBBONS, Circuit

Judges.

Joyce Anne Dabish again moves to remand her appeal

in this labor law case because she received ineffective

representation from her counsel. As this court has previously

stated, there are no Fifth or Sixth Amendment rights to

effective counsel in a civil case such as this one. Futher &

Sons Lumber & Bldg. Supplies, Inc. v. NLRB, 931 F.2d 1093,

1097 (6th Cir. 1991). The motion to remand is denied. Dabish

is warned that if she raises this issue again she will be subject

to sanctions. See Fed. R. App. P. 38.

2a

Appendix A

Dabish received a six-month extension of time in which

to file her brief due to illness. Dabish’s motion shows that

she has now recovered sufficiently to be able to file her brief.

The clerk’s office is directed to establish a briefing schedule.

ENTERED BY ORDER OF THE COURT

s/ Leonard Grunji

Clerk

3a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF MICHIGAN, SOUTHERN DIVISION DENYING

PLAINTIFF’S MOTION TO REMAND

DATED MAY 25, 2005

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 02-72659

Hon. Gerald E. Rosen

JOYCE ANNE DABISH,

Plaintiff,

We

DAIMLERCHRYSLER CORPORATION, INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE, AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

and STERLING STAMPING PLANT UNITED

AUTOMOBILE WORKERS LOCAL 1264,

Defendants.

ORDER DENYING

PLAINTIFF’S MOTION TO REMAND

At a session of said Court, held in the U.S.

Courthouse, Detroit, Michigan on May 25, 2005

PRESENT: Honorable Gerald E. Rosen

United States District Judge

4a

Appendix B

In an opinion and order and accompanying judgment

dated March 31, 2004, the Court granted Defendants’ motions

for summary judgment and dismissed this case. Plaintiff

subsequently appealed this ruling to the Sixth Circuit Court

of Appeals, and this appeal remains pending. Recently,

Plaintiff requested that the Sixth Circuit “remand” the case

back to this Court, apparently so that she can pursue

additional discovery that, in her view, her attorney neglected

to seek while the district court litigation was pending. The

Sixth Circuit denied this motion, as well as a subsequent

motion for reconsideration, holding that Plaintiff could not

abandon her appeal and resume the district court litigation

without first persuading this Court to vacate its summary

judgment decision via a motion under Fed. R. Civ. P. 60(b).

In an apparent effort to heed the Sixth Circuit's

instructions, Plaintiff has filed a May 11, 2005 motion

requesting that this Court “remand” this case from the Court

of Appeals. In essence, Plaintiff seemingly wishes to resume

the litigation in this Court, evidently so that she can conduct

further discovery in support of her claims. Unfortunately,

despite the Sixth Circuit’s instructions in its two recent

orders, Plaintiff has failed to suggest why an award of Rule

60(b) relief might be warranted here, or even which

subsection of this Rule might arguably apply.

Nonetheless, it is abundantly clear to this Court that no

such relief can be awarded. The relevant clause of Rule 60(b)

under the circumstances is subsection (1), which authorizes

relief from a judgment that was the product of “mistake,

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P.

60(b)(1). More specifically, challenges to the adequacy of

Sa

Appendix B

an attorney's representation of a client typically are addressed

under the “mistake” or “excusable neglect” clauses of Rule

60(b)(1). See United States vy. Reyes, 307 F.3d 451, 456-58

(6th Cir. 2002); McCurry v. Adventist Health System/Sunbelt,

Inc., 298 F.3d 586, 593-95 (6th Cir. 2002); FHC Equities,

L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678, 684-87

(6th Cir. 1999). Yet, these same decisions further establish

that “clients must be held accountable for the acts and

omissions of their attorneys,” and that “out-and-out lawyer

blunders—the type of action or inaction that leads to

successful malpractice suits by the injured client—do not

qualify as ‘mistake’ or ‘excusable neglect’ within the meaning

of [Rule 60(b)(1)].” McCurry, 298 F.3d at 594-95 (internal

quotation marks and citations omitted).

So far as can be gleaned from her motion and supporting

documents, this is precisely the theory of relief advanced by

Plaintiff—namely, that she should be given a second bite at

the discovery apple because of the inadequate performance

of her counsel while this case was pending before this Court.

The courts have been unwilling to make an exception from

the usual finality of judgments under these circumstances.

See McCurry, 298 F.3d at 595. In addition, Plaintiffs request

for relief under Rule 60(b)(1) is untimely, as her motion was

filed more than one year after the entry of the Court’s March

31, 2004 opinion and order and judgment. Consequently, the

Court finds no basis for granting relief under Rule 60(b),

and Plaintiff must pursue any challenges to this Court’s

rulings via her pending Sixth Circuit appeal.

6a

Appendix B

For these reasons,

NOW, THEREFORE, IT IS HEREBY ORDERED that

Plaintiff's May 11, 2005 motion to remand is DENIED.

s/ Gerald E. Rosen

Gerald E. Rosen

United States District Judge

Dated: May 25, 2005

Ta

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED APRIL 13, 2005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-1583

JOYCE ANNE DABISH,

Plaintiff-Appellant,

v.

DAIMLERCHR YSLER CORPORATION; INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA;

STERLING STAMPING PLANT UNITED AUTOMOBILE

WORKERS LOCAL 1264,

Defendants-Appellees.

ORDER

Before: MERRITT, MOORE and GILMAN, Circuit

Judges.

Joyce Anne Dabish moves the court to reconsider this

court's order denying her motion to remand this case arising

under labor law and ERISA.

In her motion to reconsider, Dabish requests a remand

to obtain additional evidence. A party seeking to have a

8a

Appendix C

district court vacate its decision while the case is on appeal

must initially file a Federal Rule of Civil Procedure Rule

60(b) motion in the district court. Bovee v. Coopers &

Lybrand C.P.A., 272 F.3d 356, 359 n.1 (6th Cir. 2001); First

Nat'l Bank v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976). If

the district court is disposed to grant the motion, it may enter

an order so indicating, and the party may then file a motion

to remand in this court. /d. Dabish has not followed this

procedure.

The motion to reconsider is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Grunji

Clerk

9a

APPENDIX D — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED FEBRUARY 9, 2005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-1583

JOYCE ANNE DABISH,

Plaintiff-Appellant,

Vv.

DAIMLERCHRYSLER CORPORATION; INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA;

STERLING STAMPING PLANT UNITED AUTOMOBILE

WORKERS: LOCAL 1264,

Defendants-Appellees.

ORDER

Before: MERRITT, MOORE, and GILMAN, Circuit

Judges.

Joyce Anne Dabish appeals pro se a district court grant

of summary judgment in favor of the defendants in this labor

and ERISA case. 29 U.S.C. §§ 185 et seq. and 1001 et seq.

Dabish has filed a motion to remand the case to the district

court. Dabish claims that she did not receive adequate legal

representation from her attorney in the district court, so a

10a

Appendix D

remand is appropriate. DaimlerChrysler has filed a response

to the motion, and Dabish has filed a reply to the response.

Concerning Dabish’s argument about adequate legal

representation, there is no Sixth Amendment right to counsel

in a civil case. Fathers & Sons Lumber & Supplies, Inc. v.

NLRB, 931 F.2d 1093, 1097 (6th Cir. 1991). Moreover, the

Fifth Amendment right to effective assistance of counsel does

not apply in civil cases except for deportation proceedings

or other government-initiated actions. Jd. Dabish’s case does

not involve a government-initiated action. Because Dabish

has no right to effective assistance of counsel, her argument

based on not receiving adequate legal representation lacks

merit.

The motion to remand is denied. The clerk is directed to

establish a briefing schedule.

ENTERED BY ORDER OF THE COURT

s/ Leonard Grunji

Clerk

lla

APPENDIX E — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN, SOUTHERN

DIVISION GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT DATED MARCH 31, 2004

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 02-72659

Hon. Gerald E. Rosen

JOYCE ANNE DABISH,

Plaintiff,

v.

DAIMLERCHRYSLER CORPORATION, INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE, AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

and STERLING STAMPING PLANT UNITED

AUTOMOBILE WORKERS LOCAL 1264,

Defendants.

OPINION AND ORDER GRANTING DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

At a session of said Court, held in the U.S.

Courthouse, Detroit, Michigan on MAR 3/ 2004

PRESENT: Honorable Gerald E. Rosen

United States District Judge

l2a

Appendix E

I. INTRODUCTION

Plaintiff Joyce Anne Dabish filed apro se complaint with

this Court on June 26, 2002, seeking to revoke her acceptance

of an early retirement offer made by her employer, Defendant

DaimlerChrysler Corporation, and negotiated by her

collective bargaining representative, Defendant UAW Local

1264. In an October 21, 2002 first amended complaint filed

on her behalf by her present counsel, Plaintiff advances

claims under § 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185, the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001

et seg., and Michigan common law, all in an effort to rescind

her apparent acceptance of DaimlerChrysler’s early

retirement offer.

By motions filed on February 28, 2003 and March 4,

2003, respectively, Defendants DaimlerChrysler and UAW

Local 1264 now seek summary judgment in their favor on

all of Plaintiff's claims, state and federal alike. In untimely

responses filed on May 30, 2003 and June 2, 2003, Plaintiff

concedes that she cannot pursue a state-law claim of wrongful

termination in violation of public policy, where any such

state-law claim surely would be preempted by federal labor

law in light of Plaintiff's status as member of UAW Local

1264 whose employment with DaimlerChrysler was governed

by a collective bargaining agreement. Nonetheless, Plaintiff

contends that she has produced sufficient evidence in support

of her breach-of-contract and ERISA claims, where she

purportedly was told by union representatives that she could

revoke her acceptance of the early retirement plan at any time

up until she executed the final retirement paperwork.

l3a

Appendix E

Defendants filed reply briefs in further support of their

motions on June |1 and 12, 2003.

Having reviewed the parties’ submissions and the record

as a whole, the Court finds that these materials sufficiently

disclose the relevant allegations, facts, and legal arguments,

and that oral argument would not significantly aid the

decisional process. Accordingly, the Court will decide

Defendants’ motions “on the briefs.” See Local Rule

7.1(e)(2), U.S. District Court, Eastern District of Michigan.

This Opinion and Order sets forth the Court’s rulings.

Il. FACTUAL BACKGROUND

The pertinent facts of this case are relatively

straightforward. Moreover, there is scant opportunity for

dispute of these facts, where Plaintiff took no depositions,

Defendants apparently deposed only Plaintiff herself, and the

record otherwise consists almost entirely of materials related

to the early retirement offer extended by Defendant

DaimlerChrysler to certain of its hourly employees, including

Plaintiff.

Plaintiff Joyce Anne Dabish has been employed by

Defendant DaimlerChrysler Corporation since September of

1976, and was 61 years old at the time she commenced this

suit. At all relevant times, Plaintiff worked as an hourly

production worker at DaimlerChrysler’s Sterling Stamping

Plant in Sterling Heights, Michigan. The terms of Plaintiffs

employment were governed by a collective bargaining

agreement (“CBA”) between DaimlerChrysler and the

Defendant UAW.

l4a

Appendix E

in March of 2002, DaimlerChrysler promulgated an

Incentive Program for Retirements (“IPR”) for eligible union-

represented hourly employees at several of the company s

manufacturing facilities, including the Sterling Stamping

Piant. The IPR was negotiated with the UAW as part of

DaimlerChrysler’s company-wide effort to reduce its work

force through voluntary attrition. The IPR offered cash

incentives and vehicle vouchers, but did not alter the pension

or other benefits an employee otherwise would receive upon

retirement.

The IPR was offered to employees in the form of a letter

describing the program, which was captioned “2002 Incentive

Program for Retirements Conditional Offer Letter.” (First

Amended Complaint, Ex. A.) The letter established a

“conditional offer period from March 13, 2002 through

March 28, 2002,” during which the employee was required

to sign and date the form to indicate his or her acceptance or

rejection of the offer. (/d.) In the section to be signed by

employees who accepted the offer, the letter stated:

I hereby accept this conditional offer under

the Incentive Program for Retirements. The

effective date of my retirement will be April 30,

2002 unless a two-month extension of my

retirement date is required by Management.

I acknowledge that Management will make

the final determination of my retirement date and

may require a two-month extension of my

retirement date to June 30, 2002.

15a

Appendix E

I acknowledge that Management will make a

final selection of separations to be accepted under

this Program on the basis of corporate service.

I acknowledge that I have had reasonable time

to consider this conditional offer, that I have been

informed to discuss it with my attorney and/or

financial advisor, and that my acceptance of this

conditional offer is completely voluntary on my part

and was in no way forced upon me by

DaimlerChrysler Corporation,

I acknowledge that my election to separate under

this Incentive Program for Retirements is irrevocable

after March 28, 2002 by me or by others.

In January of 2002, Plaintiff attended a regular membership

meeting of UAW Local 1264, and leamed that an early retirement

offer would be forthcoming. On January 24, 2002, she received

an estimate of her benefits under the DaimlerChrysler-UAW

pension plan. When Plaintiff arrived at work on March 13, 2002,

she received a copy of the above-cited IPR letter, accompanied

by a package of materials that further explained this early

retirement offer and estimated the retirement benefits Plaintiff

would receive if she accepted. These materials reiterated that

“fi]f you accept this conditional offer, you must retire on the

date indicated in your offer letter, subject to any determination

by Management that an extension of that date is needed and

also subject to any conditional terms that the application for

retirement be accepted by Management as indicated in your

conditional offer letter.” (Plaintiff's Response, Ex. 3, IPR

package at 2.)

16a

Appendix E

On March 18, 2002, UAW Local 1264 conducted an

informational meeting to “explain all options available to

members who have received an I.P.R. package.” (Plaintiff's

Response, Ex. 4.) Because of a doctor’s appointment,

Plaintiff was unable to attend this meeting, but she was

assured that she could contact her union representatives to

address any questions she might have about the early

retirement offer. Accordingly, on March 25, 2002, Plaintiff

went to the Local 1264 office and met with two union benefit

representatives, Tom Nizich and Kathy Scorpio-Butina.

This March 25, 2002 meeting is pivotal to Plaintiff's

claims in this case. According to the complaint and the

testimony at her deposition, Plaintiff had not yet signed her

offer letter, and still had not made up her mind whether to

accept the offer. Plaintiff testified that she asked Nizich and

Scorpio-Butina, “If I sign this letter, and later on I decide

that I can’t go through with this retirement, can I still change

my mind?” (Plaintiff's Dep. at 39.) According to Plaintiff,

both Nizich and Scorpio-Butina assured her that “[yJou have

until the day you sign the final retirement papers to change

your mind. (/d.) There was no discussion of the language of

the IPR letter stating that an employee's acceptance was

“irrevocable after March 28, 2002.” Plaintiff signed the letter

that same day, indicating her acceptance of the IPR offer. '

She acknowledged at her deposition that she read the entire

letter before she signed it, including the statement that her

acceptance was “irrevocable.” (Plaintiff's Dep. at 109, 112.)

1. To be accurate, the letter reflects a signature date of April

25, 2002. (See Complaint, Ex. A.) Plaintiff confirmed at her

deposition, however, that this date is incorrect, and that she actually

signed the letter on March 25, 2002 (See Plaintiff's Dep. at 35, 40.)

17a

Appendix E

On June 5, 2002, Morris Simms, DaimlerChrysler’s

Senior Manager for Human Resources at the Sterling

Stamping Plant, approved Plaintiff's eligibility for the IPR

offer, and established June 30, 2002 as her retirement date.

That same day, however, Plaintiff submitted a letter to Alvin

Davis, the supervisor of union relations at the plant, stating

that “I do not wish to accept the retirement package” and

“do not wish to retire on June 30, 2002.” (Plaintiff's

Response, Ex. 7.) On June 10, 2002, Plaintiff sent another

letter to Davis, reiterating her desire to decline the early

retirement offer and continue working. (Plaintiff's Response,

Ex. 8.)

Following this initial correspondence, Plaintiff sent two

additional letters to more senior UAW officials, stating that

she had been told by Tom Nizich that “I could reverse my

decision to retire by not signing the final retirement papers,”

but that Nizich now was “saying that the Company will force

me to retire.” (Plaintiff's Response, Ex. 9)’ In response,

Plaintiff received a June 20, 2002 letter from John Rudzinski,

the International Benefit Representative for UAW’s

DaimlerChrysler Department, stating that the terms of the

IPR were “totally different from a ‘regular retirement.””

(Plaintiff's Response, Ex. 10.) In particular, Rudzinski

explained:

Under normal circumstances, an employee has the

right to revoke their decision up till the last day

2. Plaintiff has produced a memo, apparently authored by

Nizich, indicating that Plaintiff was one of seven employees

represented by Local 1264 who sought to revoke their acceptance of

the IPR offer. (See Plaintiff's Response, Ex. 11.)

18a

Appendix E

of the month prior to the commencement of

retirement benefits.

However, as stated just above your signature

on your acceptance of the offer, your decision is

irrevocable after March 28, 2002. Additionally,

this was explained at the informational meetings

held for anyone interested in the incentive offer.

(/d.)

When Plaintiff reported for work as usual on July 1,

2002, she was told that she was now considered a retired

employee, and she was escorted from the facility. To date,

Plaintiff apparently has never completed the paperwork

necessary to begin collecting retirement benefits. Instead, on

July 3, 2002, Plaintiff sent a letter to the President of UAW

Local 1264 protesting her removal from active employment.

(See Plaintiff's Response, Ex. 12.) When Local 1264 declined

to pursue her grievance, Plaintiff sent a letter to UAW

President Ron Gettelfinger appealing this decision. In a letter

dated December 5, 2002, Gettelfinger denied this appeal,

stating:

Your appeal to this office postmarked

September 12, 2002 has been considered. Your

submission chronicles the circumstances

surrounding your contention that you should be

returned to active employment.

Investigation reveals that a 2002 Incentive

o

Program for Retirements was offered at the

19a

Appendix E

Sterling Stamping Plant with a conditional offer

period from March 13, 2002 through March 28, 2002

for eligible represented hourly employees. Eligible

employees received a letter explaining the offer in

sufficient detail.

You have made your position the subject of an

appeal to the Local Union Membership and the UAW

National DaimlerChrysler Department. Unable to

locate a violation of the agreement or a duty

breached, both determined your appeal requires an

interpretation of the agreement.

For the reasons cited above, the UAW

International DaimlerChrysler Department has

determined that the issues raised in your

communications do not depict a violation of the

Agreement; it requires an interpretation of the 2002

Incentive Program for Retirements Conditional Offer

Letter. It is held that your election to separate under

the Incentive Program for Retirements is irrevocable.

The UAW International DaimlerChrysler

Department is responsible for negotiating and

implementing the agreement and any supplement

thereof. Because their interpretation is correct, | am

ruling on this appeal pursuant to Article 33, Section

2(b) of the International Constitution.

The appeal is denied and there is no further

appeal from this decision.

(Plaintiff's Response, Ex. 14.)

20a

Appendix E

On June 26, 2002, while she was still pursuing her

remedies under the CBA, Plaintiff commenced this action

by filing a terse two-page pro se complaint seeking

reinstatement to active employment. She subsequently

retained counsel, through whom she has filed a first amended

complaint that more thoroughly presents her allegations and

theories of recovery. Specifically, this amended pleading

advances breach of contract and breach of fiduciary duty

claims against DaimlerChrysler, the UAW, and UAW Local

1264, arising under § 301 of the Labor Management Relations

Act (“LMRA”), 29 U.S.C. § 185, the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001

et seq., and Michigan common law. Although Plaintiff now

concedes that: she cannot pursue her state-law claim of

wrongful discharge, she contends that she has produced

sufficient evidence to sustain her federal theories of recovery.

Ill. ANALYSIS

A. The Standards Governing Defendants’ Motions

Through their present motions, Defendants seek

summary judgment in their favor pursuant to Federal Rule

of Civil Procedure 56. Under this 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). In this

case, the record is limited and largely undisputed, resulting

in a fairly straightforward Rule 56 inquiry. Accordingly, the

Court now turns to this task.

21a

Appendix E

B. Plaintiff Has Failed to Produce Evidence to Sustain

Either Prong of Her Hybrid § 301 Claim.

As noted, Plaintiff has acknowledged that the state-law

theory of recovery asserted in her first amended complaint

is preempted by federal law—specifically, § 301 of the

LMRA, 29 U.S.C. § 185—by virtue of Plaintiff's status as a

member of UAW Local 1264 and the existence of a CBA

between the union and her employer, DaimlerChrysler. Thus,

to the extent that Plaintiff's claims rest upon an alleged breach

of an obligation owed by her employer under the CBA or a

related, collectively bargained agreement, they are governed

by the standards of so-called “hybrid § 301” claims. As this

Court previously has observed:

It is well-settled that for a union employee to

maintain an action for breach of a labor contract

against his employer, he must also establish that

his union breached its duty of fair representation.

Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17

L.Ed.2d 842 (1967). Such a suit, as a formal

matter, comprises two causes of action. The suit

against the employer rests on § 301, since the

employee is alleging a breach of the collective

bargaining agreement. The suit against the union

is one for breach of the union’s duty of fair

representation. Vaca v. Sipes, supra; DelCostello

v. International Brotherhood of Teamsters, 462

U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

The two claims are inextricably interdependent:

To prevail against either the company or the

Union, the employee-plaintiff must not only show

22a

Appendix E

that his discharge was contrary to the contract but

must also carry the burden of demonstrating a

breach of duty by the Union. /d., 103 S.Ct. at

2290-91. The employee may, if he chooses, sue

one defendant and not the other; but the case he

must prove is the same whether he sues one, the

other, or both. /d. at 2291.

Cotter v. DaimlerChrysler Corp., 87 F. Supp.2d 746, 756

(E.D. Mich. 2000). Defendants argue, and the Court agrees,

that Plaintiff cannot satisfy either prong of this standard.

First, regarding the breach-of-contract element of a

hybrid § 301 claim, Plaintiff does not contend that

DaimlerChrysler breached any provision of the underlying

CBA. Rather, her claim rests upon the terms of the letter she

signed on March 25, 2002, reflecting her apparent acceptance

of the early retirement offer extended through Daimler

Chrysler’s 2002 Incentive Program for Retirements (“IPR”),

Although the parties do not address the point, it is evident to

the Court that the IPR, as an agreement negotiated between

DaimlerChrysler and the UAW that supplements the

underlying CBA, should be “treated in the same manner as

the collective bargaining agreement” itself. Cotter, 87

F. Supp.2d at 757.* In particular, to determine whether the

IPR was breached, the Court looks first to “the plain meaning

3. Because of the applicability of § 301 standards to the CBA

and the IPR alike, the parties’ various citations to Michigan court

decisions are not particularly helpful here. Given the parties’ apparent

agreement that federal law governs the terms of Plaintiff's

relationship with her employer, the Court fails to see why it should

look to rulings on Michigan contract law.

23a

Appendix E

of the agreement.” Roeder v. American Postal Workers Union,

AFL-CIO, 180 F.3d 733, 737 (6th Cir. 1999).

If the terms of the IPR are defined solely by reference to

the letter and accompanying written materials received by

Plaintiff, it is clear that DaimlerChrysler did not breach this

agreement by refusing to allow Plaintiff to rescind her

acceptance of the early retirement offer, The letter signed by

Plaintiff states in the plainest of terms that her acceptance

was “irrevocable after March 28, 2002 by me or by others.”

(First Amended Complaint, Ex. A (emphasis added)) The

accompanying materials arc fully consistent with this

provision, stating at One point that “[i]f you accept this

conditional offer, you must retire on the date indicated in

your offer letter,” subject only to certain conditions imposed

by management at its discretion. (Plaintiffs Response,

Ex. 3, IPR package at 2.) Plaintiff acknowledges that she

read the letter before signing it, and she does not contend

that she was in any way coerced into accepting the offer of

early retirement. Moreover, Plaintiff concedes that she did

not attempt to revoke her acceptance until June 5, 2002, well

after the March 28, 2002 cut-off date set forth in the letter.

Nonetheless, Plaintiff suggests two theories under which

DaimlerChrysler could be deemed to have breached the early

retirement agreement. First, she cites the various places, in

both the letter and the accompanying materials, where the

offer of early retiremen< is characterized as “conditional.”

The letter itself, for example, is captioned “2002 Incentive

Program for Retirements Conditional Offer Letter.” Plaintiff

reasons that she was free to revoke her acceptance of this

“conditional” offer until it was fully executed through the

24a

Appendix E

completion of her final retirement paperwork. Yet, as

DaimlerChrysler points out, the letter itself plainly discloses

the conditions upon the offer of early retirement: (i) that

“Management will make the final determination” of the

employee’s exact retirement date, choosing between April

30 and June 30, 2002; and (ii) that “Management will make

a final selection of separations to be accepted under this

Program on the basis of corporate service.” (First Amended

Complaint, Fix. A.) These conditions ran entirely in favor of

the company—an employee's acceptance of the early

retirement offer, in other words, was conditional upor

management’s authority to make the final selection of which

employee offers to accept. Nothing in these conditions gave

Plaintiff the power to rescind her acceptance after March 28,

2002.

Next, Plaintiff suggests that the terms of the IPR were

modified by virtue of the assurances of two union benefit

representatives, Tom Nizich and Kathy Scorpio-Butina, that

she could revoke her acceptance at any time before she

completed her final retirement paperwork. As an initial

matter, Defendants correctly note the absence of any evidence

that these two employees, who evidently did not hold any

sort of management position, had the authority to bind

DaimlerChrysler or modify the terms of the IPR through their

oral representations to Plaintiff.*

4. Indeed, because Plaintiff did not take the depositions of these

individuals, and has not otherwise addressed the extent of their

authority to bind their employer or the union through their statements

about the proper construction of the terms of the IPR, it is not clear

as an evidentiary matter that their hearsay statements concerning

Plainuff’s opportunity to revoke her acceptance would be admissible

at trial. Cf. Fed. R. Evid. 801(d)(2)(D).

25a

Appendix E

More importantly, federal labor law forecloses any

possible recourse to an individual side agreement, whether

written or oral, that is inconsistent with the terms of the

underlying CBA. Plaintiff contends, in essence, that the

verbal assurances of union representatives Nizich and

Scorpio-Autina gave rise to an individual contractual right,

over and above the terms of the IPR, to revoke her acceptance

at any time before she completed her final retirement

paperwork. Yet, “[a] collective bargaining agreement...

supersedes an individual employment contract to the extent

that they are inconsistent.” Loewen Group International, Inc.

v. Haberichter, 65 F.3d 1417, 1423 (7th Cir. 1995); see also

JI. Case Co. v. N.L.R.B., 321 U.S. 332, 339, 64 S. Ct. 576,

581 (1943) (holding that “[i]ndividual contracts cannot

subtract from collective ones”); Maushund v. Earl C. Smith,

Inc., 795 F.2d 589, 590 (6th Cir, 1986) (“The collective

bargaining process prohibits [a represented employee] from

engaging in separate negotiations with the company and

precludes any actions to enforce such an agreement.”);

cf. Wells v. General Motors Corp., 881 F.2d 166, 174 (Sth

Cir. 1989) (finding that state-law claims “founded upon

contractual rights or common-law rights independent of those

which the collectively-bargained agreement creates” are not

preempted by the LMRA.). The inconsistency here could

hardly be more pronounced—the acceptance given by other

employees was irrevocable under the terms of the IPR letter,

but Plaintiff remained free to revoke her acceptance under

the individual agreement conferred upon her by Nizich and

Scorpio-Butina. Plaintiff has cited no authority for the

proposition that federal labor law would recognize such an

individual agreement, in direct contravention of the collective

deal struck on behalf of Plaintiff and her fellow union

members by their designated bargaining representative.

26a

Appendix E

A more promising avenue for Plaintiff, though one that

she has failed to pursue in her submissions to the Court, rests

upon the principle of estoppel. The Sixth Circuit has held

that “[t]he equitable doctrines of estoppel and waiver are

applicable in a section 301 action to enforce a labor contract.”

Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1217 (6th

Cir. 1987). More recently, the Court confirmed that “[t]he

federal common law of contract applicable under the LMRA

includes the doctrine of promissory estoppel.” Anderson vy.

AT&T Corp., 147 F.3d 467, 477 (6th Cir. 1998). The Court

has elaborated:

The elements constituting estoppel, as defined

by federal common law, are: (1) conduct or

language amounting to a representation of material

facts; (2) the party to be estopped must be aware

of the true facts; (3) the party to be estopped must

intend that the representation be acted on or act

such that the party asserting the estoppel has a

right to believe it so intended; (4) the party

asserting the estoppel must be unaware of the true

facts; and (5) the party asserting the estoppel must

detrimentally and justifiably rely on the

representation.

Apponi, 809 F.2d at 1217.

Plaintiff seemingly could establish at least some of these

elements of a claim of estoppel. The statements allegedly

made by union benefit representatives Nizich and Scorpio-

Butina arguably qualify as representations of an undeniably

material fact—namely, that Plaintiff could revoke her

27a

Appendix E

acceptance of the early retirement offer at any time prior to

her execution of the final retirement documents.* Next, in

making these alleged statements, Nizich and Scorpio-Butina

surely intended and understood that Plaintiff would use this

information in her decision whether to accept the early

retirement offer. Indeed, Plaintiff testified that she signed

the IPR letter immediately after she was assured that she

could still revoke her acceptance.

The evidence regarding the second prong of a claim of

estoppel is somewhat more equivocal, however. The record

is wholly silent as to Nizich’s or Scorpio-Butina’s awareness

of the “true fact” that Plaintiff's acceptance was not revocable

after March 28, 2002. One could presume, perhaps, that these

union representatives surely must have known this fact, by

virtue of the plain language of the IPR letter disclosing this

information.® Yet, other evidence produced by Plaintiff

herself casts doubt on this assumption. In particular, the June

20, 2002 letter received by Plaintiff from John Rudzinski,

an International Benefit Representative for the UAW

DaimlerChrysler Department, states that an employee's

decision concerning a “regular retirement” is revocable “up

till the last day of the month prior to the commencement of

retirement benefits.” (Plaintiff's Response, Ex. 10.) Thus, it

5. Although these statements could also be construed as

expressing a mere opinion—and not a particularly well-informed

one, at that—the Court assumes for present purposes that they qualify

as assertions of fact.

6. As discussed below, the self-evident nature of this fact might

favor Plainuff on this element of estoppel, but cuts sharply against

her as to other elements.

28a

Appendix E

is possible that Nizich and Scorpio-Butina responded to

Plaintiff's inquiry hy providing this “regular retirement”

information, perhaps; unaware that the IPR was governed by

different rules. Moreover, while the Sixth Circuit has

recognized that a sspeaker’s “apparent authority” might

“satisfy (or at least. . . stand in for) the awareness element”

of a claim of estoppe:], Anderson, 147 F.3d at 477, the Court

already has noted the absence of evidence that Nizich or

Scorpio-Butina had tthe authority to bind either the union or

DaimlerChrysler through their statements about the terms

of the IPR.

In any event, no reasonatie trier of fact could conclude

that Plaintiff has satisfied the fourth or fifth elements of an

estoppel-based theoiry of recovery. Under the fourth prong,

Plaintiff must show tthat she was “unaware of the true facts.”

Yet, she was express;ly told, in the language of the IPR letter

appearing directly albove her signature, that her acceptance

of the early retirement offer was “irrevocable after March

28, 2002.” The Sixth Circuit has held that the “unawareness”

element of a claim of estoppel encompasses both the facts

actually known to a party and those which the party had the

means to ascertain. Trustees of Michigan Laborers’ Health

Care Fund v. Gibbons, 209 F.3d 587, 593 (6th Cir. 2000).

Even if Plaintiff didi not actually read the IPR letter before

she signed it—andl she acknowledged otherwise at her

deposition—she readily could have ascertained the deadline

for revoking her acceptance, merely by noting the explicit

and unambiguous diisclosure of this deadline in the letter

itself.

29a

Appendix E

For similar reasons, Plaintiff cannot establish that she

detrimentally and justifiably relied on the representations of

Nizich and Scorpio-Rutina that she could revoke her

acceptance beyond the March 28, 2002 deadline set forth in

the IPR letter. In particular, while Plaintiff's deposition

testimony indicates that she relied on these representations

to her detriment, the evidence does not support a finding

that this reliance was justified. In the analogous context of

an ERISA-based claim of estoppel, the Sixth Circuit has

emphasized that a “party’s reliance can seldom, if ever, be

reasonable or justifiable if it is inconsistent with the clear

and unambiguous terms of plan documents available to or

furnished to the party.” Sprague v. General Motors Corp.,

133 F.3d 388, 404 (6th Or. 1998). The courts have adopted

this reasoning in a number of other cases where the factual

assertion purportedly relied upon is directly contradicted by

the express, unambiguous terms of the parties’ written

agreement. See, e.g., Gibbons, 209 F.3d at 593-94;

Armbruster-v. K-ll Corp., 206 F. Supp.2d 870, 894

(E.D. Mich. 2002); Easa v. Florists’ Transworld Delivery

Ass'n, 5 F. Supp.2d 522, 526-27 (E.D. Mich. 1998). Again,

the IPR letter here was direct and unambiguous in

establishing a deadline of March 28, 2002 for revocation,

and Plaintiff would not have been justified in relying on the

alleged assertions of union representatives to the contrary.

Accordingly, the Court finds that the record fails to support

the breach-of-contract prong of Plaintiff's hybrid § 301 claim.

In addition, it appears doubtful that Plaintiff could

establish the second prong of this claim, a breach of the

union’s duty of fair representation. “To meet [her] burden of

proof as to the union's breach of its duty of fair representation,

30a

Appendix E

a plaintiff must establish by substantial evidence that the

union acted arbitrarily, discriminatorily or with bad faith.”

Cotter, 87 F. Supp.2d at 756. Regarding the alleged

misstatements of union representatives Nizich and Scorpio-

Rutina concerning Plaintiffs right to revoke her acceptance,

the record indicates, at worst, that these statements rested

upon a mistaken assumption that the “regular retirement”

rules appliedAs well to the IPR. Such a mistaken judgment

“would at most be negligence,” and “[mJere negligence is

insufficient to establish a breach of the duty of fair

representation,” Poole v. Budd Co., 706 F.2d 181, 184 (6th

Cir. 1983). As for the union’s decision not to pursue

Plaintiff's grievance, the December 5, 2002 letter from UAW

President Ron Gettelfinger sets forth the union’s view that

this grievance was based upon an interpretation of the IPR

that the union deemed incorrect. These are “rational and

objective grounds” for the union to decline to pursue

Plaintiffs grievance, Cotter, 87 F. Supp.2d at 757, and

therefore defeat any claim that the union acted arbitrarily,

discriminatorily, or in bad faith in this matter.

C. Plaintiff Has Failed to State a Viable Claim under

ERISA.

Having found no evidence to sustain a claim under

§ 301 of the LMRA, this leaves only Plaintiff’s various

ERISA-based theories of recovery. In support of their

summary judgment motions, Defendants contend that ERISA

does not reach the allegations made by Plaintiff in this case.

The Court agrees.

3la

Appendix E

The reach of ERISA is undeniably broad, superseding

“any and all State laws insofar as they may now or hereafter

relate to any employee benefit plan.” 29 U.S.C. § 1144(a).

The IPR at issue here undoubtedly conferred “benefits” upon

DaimlerChrysler employees, including a lump-sum severance

payment and a credit toward the purchase or lease of a

vehicle. Yet, in Fort Halifax Packing Co. v. Coyne, 482 U.S.

1, 107S. Ct. 2211 (1987), the Supreme Court held that ERISA

did not preempt a Maine statute mandating one-time

severance payments to employees in the event of a plant

closing, reasoning that such a one-time payment did not give

rise tO an Ongoing administrative scheme that reasonably

could be termed a “plan.”

Based on the reasoning of Fort Halifax and other

Supreme Court decisions addressing the preemptive scope

of ERISA, the courts have held that claims involving early

retirement programs are not governed by ERISA, absent a

substantial link between the claim and an employee benefit

plan. In Wells v. General Motors Corp., 881 F.2d 166, 175-

76 (Sth Cir. 1989), for example, the Fifth Circuit relied on

Fort Halifax in concluding that a voluntary termination

program with severance pay was not an “employee benefit

plan” within the meaning of ERISA. Accordingly, the Court

found that ERISA did not preempt the plaintiffs’ state-law

claims that they had been fraudulently induced to accept this

program.

Similarly, in Forbus v. Sears Roebuck & Co., 30 F.3d

1402, 1405-06 (11th Cir. 1994), the Eleventh Circuit found

that ERISA did not preempt a claim that an employer had

fraudulently induced the plaintiff employees to accept a

32a

Appendix E

retirement package by falsely stating that their facility was

closing and their jobs would be eliminated. In so ruling, the

Court distinguished prior cases in which employees had retired

in reliance on false representations about the retirement benefits

they would receive. See Forbus, 30 F.3d at 1406. The Court

reasoned that the alleged misrepresentation in the case before it

‘did not involve a benefit plan—it involved the very existence

of the plaintiffs’ jobs.” 30 F.3d at 1406. Nor was a finding of

preemption warranted, in the Courts view, by the “mere fact

that the plaintiffs’ damages may be affected by a calculation of

pension benefits.” 30 F.3d at 1406-07.

This Court previously has reached a similar conclusion,

albeit in the somewhat distinct context of “complete

preemption.” In Hanks vy. General Motors Corp., 26

F. Supp.2d 977, 978-79 (E.D. Mich. 1998), the plaintiff

employee had been receiving workers’ compensation benefits

for a number of years, and then inquired of her employer,

defendant General Motors, whether these benefits would be

jeopardized if she began collecting benefits from her

employer-sponsored pension plan. A General Motors

employee assured the plaintiff that she could simultaneously

receive both workers’ compensation and pension benefits,

and she began drawing pension benefits in reliance on this

representation. A short time later, her workers’ compensation

benefits were terminated pursuant to a coordinated benefits

clause in the governing insurance policy. The plaintiff then

brought suit in state court, asserting claims of fraudulent and

negligent misrepresentation.

General Motors removed the case to federal court,

contending that the plaintiff's state-ilaw claims were

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completely preempted under ERISA. This Court remanded

the case to state court, however, reasoning that the doctrine

of complete preemption did not apply because the plaintiff

was “not attempting to recover benefits due under the terms

of” the General Motors pension plan. Hanks, 26 F. Supp.2d

at 983. Rather, the plaintiff sought “to rescind her decision

to draw [pension] benefits on the grounds that [her employer]

allegedly made misrepresentations which led her to believe

she was entitled to workers’ compensation benefits in

addition to the benefits due under the [pension plan] itself.”

26 F. Supp.2d at 983. Thus, the Court found that the plaintiff's

state-law claims “only tangentially implicate[d] the ERISA

benefits plan” offered by her employer. 26 F. Supp.2d at 983.

Although Hanks addresses complete rather than ordinary

preemption, it 1s entirely consistent with the above-cited

decisions in recognizing that ERISA does not reach any and

all claims that “tangentially implicate” an employee benefit

plan. These rulings arc fully applicable here, where the lump-

sum payments promised under DaimlerChrysler’s IPR did

not give rise to an “employee benefit plan” governed by

ERISA. Nor do Plaintiff's claims and allegations directly

implicate the terms of any employee benefit plan offered by

her employer; she does not assert, for example, that her

acceptance of the IPR offer was based upon any sort of

misrepresentation about the types or amounts of retirement

benefits she would receive.

Indeed, Plaintiff has given no reason whatsoever for

seeking to revoke her acceptance. Rather, she more broadly

asserts that the period of revocation had not yet closed at the

time she changed her mind, so that she was free to revoke

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her acceptance for any reason whatsoever. As in Forbus, the

alleged misrepresentation here concerns Plaintiff's right to

continued employment, and not merely her right to a different

level of benefits. Plaintiff seeks “to set aside and escape from

the early retirement agreement, not to recover under it or to

‘enforce’ it or to assert rights to future benefits under the

teens of the plan.’” Warner v. Ford Motor Co., 46 F.3d 531,

534 (6th Cir. 1995) (holding, as in Hanks, that such a claim

is not completely preempted under ERISA). Although

Plaintiff's plea for damages might encompass benefits under

various DaimlerChrysler plans, the above-cited cases hold,

and Sixth Circuit precedent confirms, that this sort of indirect

involvement, of an employee benefit plan does not trigger

ERISA preemption. See Wright v. General Motors Corp. , 262

F.3d 610, 615 (6th Cir. 2001); Forbus, 30 F.3d at 1406-07.

Consequently, the Court finds that ERISA affords no remedy

in this case, and that Plaintiff's claims instead are governed

by the standards of § 301 of the LMRA.

In any event, any such ERISA claim in this case would

face considerable difficulty on the merits. Even if ERISA

were deemed to govern the DaimlerChrysler IPR, ERISA

plans, like CBAs, generally are resistant to attempts at oral

modification. See Sprague, 133 F.3d at 402-03. Consequently,

Plaintiff's best resort again would be to an estoppel-based

theory of recovery. Yet, the Sixth Circuit has applied precisely

the same five-part estoppel standard to claims under the

LMRA and ERISA alike. See Sprague, 133 F.3d at 403-04;

Armistead v. Vernitron Corp., 944 F.2d 1287, 1298-1300

(6th Cir. 1991). Thus, in light of the unambiguous provisions

of the IPR itself, a claim of estoppel here would fare no better

under ERISA than under the LMRA. See Sprague, 133 F.3d

at 404.

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This leaves only Plaintiff’s contention that Defendants

breached a fiduciary duty owed under ERISA. As explained

in Sprague, an employer may act “in a fiduciary capacity

when it explain[s] its retirement program to [its] early

retirees.” Sprague, 133 F.3d at 405. This rule extends only

to explanations of “plan benefits,” however, see Sprague,

133 F.3d at 405, and hence is unavailing to Plaintiff in this

case, where the Court already has concluded that the IPR

does not qualify as a “plan” under ERISA.

Moreover, the Court previously has noted the complete

absence of evidence that the individuals who purportedly

explained the IPR to Plaintiff, Tom Nizich and Kathy

Scorpio-Butina, had the authority to bind either Defendant

through their statements. To be sure, the Court has little

reason to doubt the assertion that individuals in the role of

“union benefit representatives” have been granted the

authority to answer the benefit questions of union members.

Yet, such an assertion necessarily must rest upon some

evidentiary foundation, and Plaintiff simply has failed to

provide one here, Accordingly, Defendants are entitled to

summary judgment in their favor on Plaintiffs ERISA-based

theories of recovery.

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IV. CONCLUSION

For the reasons set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that

Defendant DaimlerChrysler Corporation’s February 28, 2003

Motion for Summary Judgment is GRANTED. IT IS

FURTHER ORDERED that Defendant UAW Local 1264’s

March 4, 2003 Motion for Summary Judgment also is

GRANTED.

s/ Gerald E. Rosen

Gerald E. Rosen

United States District Judge

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APPENDIX F — JUDGMENT OF DISMISSAL OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN, SOUTHERN

DIVISION DATED MARCH 31, 2004

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 02-72659

Hon. Gerald E. Rosen

JOYCE ANNE DABISH,

Plaintiff,

V.

DAIMLERCHRYSLER CORPORATION, INTERNATIONAL

UNION, UNITED AUTOMOBILE, AEROSPACE, AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

and STERLING STAMPING PLANT UNITED

AUTOMOBILE WORKERS LOCAL 1264,

Defendants.

JUDGMENT OF DISMISSAL

At a session of said Court, held in the U.S.

Courthouse, Detroit, Michigan on MAR 3/ 2004

PRESENT: Honorable Gerald E. Rosen

United States District Judge

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Appendix F

The Court having this day entered an Opinion and Order

granting Defendants’ Motions for Summary Judgment,

NOW, THEREFORE, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that this case be, and hereby

is, DISMISSED.

s/ Gerald E. Rosen

Gerald E. Rosen

United States District Judge