           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    LaPerriere v. UAW                            No. 01-1576
        ELECTRONIC CITATION: 2003 FED App. 0377P (6th Cir.)
                    File Name: 03a0377p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: William A. Wertheimer, Jr., Bingham Farms,
                  FOR THE SIXTH CIRCUIT                                   Michigan, for Appellant. Lauren M. Tomayko, Sterling
                    _________________                                     Heights, Michigan, for Appellee. ON BRIEF: William A.
                                                                          Wertheimer, Jr., Bingham Farms, Michigan, for Appellant.
 EDGAR D. LA PERRIERE, JR.,        X                                      Lauren M. Tomayko, Sterling Heights, Michigan, for
             Plaintiff-Appellee, -                                        Appellee.
                                    -
                                    -  No. 01-1576                                            _________________
            v.                      -
                                     >                                                            OPINION
                                    ,                                                         _________________
 INTERNATIONAL UNION,               -
 UNITED AUTOMOBILE ,                -                                        MYRON H. BRIGHT, Circuit Judge. Edgar LaPerriere
 AEROSPACE AND                      -                                     sued the International Union, United Automobile, Aerospace
 AGRICULTURAL IMPLEMENT             -                                     and Agricultural Implement Workers of America ("UAW"),
 WORKERS OF AMERICA ,               -                                     alleging the UAW failed to represent him fairly in his
          Defendant-Appellant. -                                          discharge grievance against his employer, Chrysler
                                    -                                     Corporation ("Chrysler"). A jury returned a verdict in favor
                                   N                                      of LaPerriere in the amount of $165,573. The UAW appeals
       Appeal from the United States District Court                       the judgment in favor of LaPerriere and the court's denial of
      for the Eastern District of Michigan at Detroit.                    its motion for judgment as a matter of law or in the alternative
    No. 98-72037—Denise Page Hood, District Judge.                        for a new trial relating to damages. For the reasons set forth
                                                                          below, we affirm the judgment of the district court.
                    Argued: March 14, 2003
                                                                                              I. BACKGROUND
             Decided and Filed: October 24, 2003                            Since 1972, Chrysler has employed LaPerriere, a dues
                                                                    *     paying member in good standing of the UAW Local 412,
Before: COLE, GILMAN, and BRIGHT, Circuit Judges.                         Unit 10, District 3. On June 20, 1994, a task force of
                                                                          Oakland/Macomb County sheriffs and members of Chrysler’s
                                                                          security staff raided the homes and businesses of some
                                                                          Chrysler employees pursuant to search warrants, seeking
                                                                          stolen Chrysler parts. When they searched LaPerriere’s home
                                                                          and outbuildings, the task force confiscated fifty-two boxes of
    *
     The Honorable Myron H. Bright, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by designation.

                                  1
No. 01-1576                         LaPerriere v. UAW       3    4       LaPerriere v. UAW                                 No. 01-1576

Chrysler parts from his home and an additional twenty-three      contract, the union would not act on LaPerriere’s grievance,
boxes from his business.                                         and the UAW would not permit an appeal of the decision.1
  On June 21, 1994, LaPerriere appeared before the Chrysler        On February 11, 1998, LaPerriere sued the UAW in state
Labor Relations Board, where a Chrysler labor relations          court, alleging the UAW failed to represent him in his
person informed LaPerriere that it would pursue charges          grievance against Chrysler. After removing the case to
against him for theft of company property. LaPerriere’s          federal court, the UAW filed a motion to dismiss, claiming
union steward, Mark Hasho, accompanied LaPerriere to the         that LaPerriere failed to exhaust his administrative remedies
meeting. Chrysler suspended LaPerriere pending further           because he did not appeal the UAW’s decision to withdraw
investigation.   Shortly thereafter, Chrysler converted          his grievance. The district court denied the UAW's motion.
LaPerriere’s suspension to a dismissal and terminated his        The case proceeded to trial, and on May 30, 2000, a jury
employment. The UAW filed a termination grievance on             returned a verdict in favor of LaPerriere in the amount of
LaPerrieres behalf.                                              $165,573. The UAW then filed a motion for judgment as a
                                                                 matter of law or in the alternative a new trial. The district
  On November 7, 1994, police officers arrested LaPerriere       court denied the motion.
and charged him with several counts of possessing stolen
property. LaPerriere notified Hasho of his arrest. Hasho                                 II. DISCUSSION
advised LaPerriere that the union would place his grievance
on hold pending the result of his criminal action. On            A. Exhaustion of Internal Union Remedies
March 24, 1997, after the prosecution rested in his criminal
case, LaPerriere moved for a directed verdict, which the trial     The UAW asserts as error the denial of its motion for
court granted. The court dismissed all criminal charges and      summary judgment following a jury trial adverse to it.
returned the property confiscated from LaPerriere.               Paschal v. Flagstar Bank, 295 F.3d 565, 572 (6th Cir. 2002)
                                                                 (determining that a party may raise as error a denial of
   LaPerriere notified Hasho of the outcome of his criminal      summary judgment after a jury trial when the party preserves
matter and requested that his grievance proceed. At the          the issue by moving for judgment as a matter of law prior to
UAW's request, LaPerriere provided the UAW with the trial
transcript. The UAW then requested receipts for all the items
confiscated from LaPerriere. LaPerriere acquired various             1
                                                                        Article 33 o f the UAW ’s constitution guarantees members the right
receipts and submitted them to the UAW.                          to app eal the actions o f local and international union o fficials. If a
                                                                 member challenges an international official's action, the member has the
   On September 23, 1997, the UAW advised LaPerriere that        right to appeal to the International Executive Board (IEB ). In most cases
it had withdrawn his grievance. Hasho advised LaPerriere         this results in a hearing at which the member has the right to be
that he should not pursue his grievance. Hasho explained that    represented by counsel, produce evidence, and submit a brief. If the
top union leaders had decided to withdraw LaPerriere's           member does not timely submit the appeal, the UAW may notify the
                                                                 appellant that it will not consider the appeal because it is untimely. The
grievance. Further, Hasho commented that contract or no          member has the right to appeal that decision to the IEB. If dissatisfied
                                                                 with the IE B's decision, the member may appeal the decision to the
                                                                 Convention Appeals Committee (CAC) or the Public Review Board
                                                                 (PRB ). The CAC consists of elected constitutional conven tion delegates.
                                                                 The P RB co nsists of independent individuals with no UAW affiliation.
No. 01-1576                         LaPerriere v. UAW        5    6       LaPerriere v. UAW                                   No. 01-1576

the verdict and renewing the motion following an adverse          appeal his grievance. However, local union officials
verdict); see also Fed.R.Civ.P. 50.                               continually told him it would be useless to appeal because the
                                                                  top international union officials decided to withdraw his
  The UAW argues that the district court erred in denying it      grievance.
summary judgment because LaPerriere failed to exhaust his
administrative remedies. Generally, a union member must              LaPerriere has shown hostility on the part of the local union
exhaust internal union remedies before a member can sue the       in advising him not to pursue his grievance further and
union for the breach of the duty of fair representation, unless   hostility from the international union, which actually
the member can demonstrate the futility of exhaustion.            withdrew his grievance and indicated that it would not pursue
Rogers v. Buena Vista Sch., 2 F.3d 163, 166 (6th Cir. 1993).      the matter further. This is not a case where only the local
Relevant factors in the exhaustion analysis include:              union or only the international union refused to pursue
(1) whether union officials have shown hostility toward the       claims; they both refused. Cf. Hammer v. UAW, 178 F.3d 856
member; (2) whether the appeals procedures adequately             (7th Cir. 1999) (upholding the district court's finding of
reactivate the grievance or award the “full relief” sought; and   failure to exhaust where no showing of hostility existed at
(3) whether delay would occur if the procedures were              either the local or international union levels); Monroe, 723
followed. Monroe v. UAW, 723 F.2d 22, 24-25 (6th Cir.             F.2d at 24 (affirming denial of claim because the union
1983). If any of these factors are found to exist, the court      member only showed hostility at local level). In fact,
may properly excuse the employee’s failure to exhaust. Here,      LaPerriere has repeatedly offered to stay the present lawsuit,
the district court determined that LaPerriere met all three       if the union would allow him to exhaust his administrative
factors. On review, we conclude that LaPerriere met the first     remedies. The union has never accepted this proposal.
factor, hostility, thus making it unnecessary to address the
district court's conclusions favorable to the plaintiff on the      While the UAW challenges the district court's finding that
factors of adequate procedures and delay.                         requiring administrative exhaustion would have been futile,
                                                                  the United States Supreme Court has held that whether to
  In order for hostility to excuse exhaustion, hostility must     require exhaustion of intraunion remedies is a matter of
exist at every level of the appeals process. An employee has      discretion for the trial court to decide. Clayton v. UAW, 451
a duty to pursue an appeal with the union even when told at       U.S. 679, 689 (1981). Here, the factual circumstances
the local level that an appeal would bring no benefits.           underlying the exhaustion requirement support the district
Monroe, 723 F.2d at 26. The UAW argues that, at most,             court's determination that LaPerriere's further pursuit of union
LaPerriere demonstrated Hasho's comments misled LaPerriere        grievances would have been futile. The district court did not
to believe that the union was unwilling to arbitrate              err in determining this issue.2
LaPerriere's grievance. Thus, the UAW asserts LaPerriere
failed to show actual hostility by the union. In making this
argument, the UAW claims that the court based its                     2
                                                                        The UAW also claims that the district court sua spon te entered
conclusions solely on the allegations contained in                judgment to LaPerriere on the issue of exhaustion. The record does not
LaPerriere’s complaint and affidavit, and ignored Hasho's         bear this out. While the district court did deny the UAW summary
contradictory statements. The district court rejected the         judgment on the issue of exhau stion, the court's ruling does not
UAW's arguments. Instead, the court explained that union          autom atically grant summary judgment to LaPerriere. Fed.R.Civ.P. 56.
                                                                  The UA W fails to cite to any place in the record showing the district court
officials were hostile to LaPerriere because he attempted to      indep endently entered summary jud gment to LaPerriere.
No. 01-1576                         LaPerriere v. UAW         7   8      LaPerriere v. UAW                            No. 01-1576

B. Judgment as a Matter of Law                                        process. There was sufficient evidence presented at trial
                                                                      that there were other reasons why [the UAW] withdrew
  The UAW next asserts the district court erred in denying it         [LaPerriere's] grievance in light of the fact that the State
judgment as a matter of law. The UAW argues that the jury,            criminal charges against [LaPerriere] were dismissed and
based on the evidence, could not conclude that the UAW                all the property confiscated from [LaPerriere] was
acted in an arbitrary manner in deciding to withdraw                  returned to [LaPerriere]. [The UAW] has failed to show
LaPerriere's discharge grievance. We review a district court’s        that the evidence before the jury was not sufficient to
denial of a motion for judgment as a matter of law de novo.           support its verdict.
Conwood Co. v. United States Tobacco Co., 290 F.3d 768,
781 (6th Cir. 2002). District courts should grant judgment as     (App. at 153-54.) On appeal, the UAW reasserts the
a matter of law only if a complete absence of proof exists on     argument it made to the jury. The UAW fails to articulate
a material issue in the action, or if no disputed issue of fact   how the evidence supports a different conclusion. Sufficient
exists on which reasonable minds could differ. Clark v.           proof exists that LaPerriere provided the UAW with
Chrysler Corp., 310 F.3d 461, 479 (6th Cir. 2002).                documents which were available, and that the UAW acted
                                                                  arbitrarily in refusing to pursue LaPerriere's discharge
  In the grievance context, the breach of the duty of fair        grievance.
representation occurs where the union: (1) conducts itself in
an arbitrary or discriminatory manner, or in bad faith;           C.    Jury Award
(2) processes the grievance in a careless manner; or
(3) inadequately handles the grievance due to its ignorance of      Finally, the UAW contends that the district court erred in
the contract provision. Ryan v. General Motors, 929 F.2d          not granting it a new trial on the issue of damages because the
1105, 1109 (6th Cir. 1989).                                       evidence does not support the jury award. Generally, the
                                                                  grant or denial of a new trial is purely within the discretion of
  Here, the jury considered whether the union acted               the trial court and will not be reversed except upon a showing
arbitrarily in deciding not to further pursue LaPerriere’s        of an abuse of discretion. Whittington v. New Jersey Zinc
claims. The UAW argues that it did not act irrationally           Co., 775 F.2d 698, 700 (6th Cir. 1985). The district court
because it decided not to pursue LaPerriere’s claims since he     abuses its discretion when we have a definite and firm
failed to provide it with the requested documents. LaPerriere     conviction that the court committed a clear error of judgment.
testified that he provided the UAW with all the documents         Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.
that he possessed. The jury found for LaPerriere.                 1989). We accept the jury’s verdict if it was reasonably
                                                                  reached and supported by some competent, credible evidence.
  The district court denied the UAW's motion for judgment         Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir. 1996). A
as a matter of law, stating:                                      jury verdict will not be set aside or reduced as excessive
                                                                  unless it is beyond the maximum damages that the jury
  Viewing the evidence in favor of the nonmoving party,           reasonably could find to be compensatory for a party’s loss.
  the Court finds there was sufficient evidence to support        Jones v. Wittenberg University, 534 F.2d 1203, 1212 (6th Cir.
  the Jury’s finding in favor of [LaPerriere]. [LaPerriere]       1976).
  testified at trial that he delivered all the documents to
  defense counsel for copying during the discovery
No. 01-1576                                LaPerriere v. UAW            9    10   LaPerriere v. UAW                     No. 01-1576

  In denying the UAW’s motion for a new trial on damages,                                    III. CONCLUSION
the district court explained:
                                                                              We AFFIRM the judgment of the district court.
  Regarding damages, [the UAW] merely states in a
  conclusory fashion that there was no evidence from
  which a jury could have determined that [LaPerriere’s]
  damages were more than twice what counsel sought. In
  response, [LaPerriere] claims he testified at trial that he
  was forced to work far more hours to make less money.
  [The UAW] has presented no authority which does not
  allow a jury to go beyond the damages requested by
  counsel. The Court finds that there was sufficient
  evidence to support the jury’s award of damages.
(App. at 154-55.) On appeal, the UAW takes the same
position as it did before the district court, that the evidence
did not support the jury award. The UAW maintains that the
record supports a damage award of $73,729. While the
parties agreed to this amount of mitigated lost wages, the
court did not instruct the jury that it could not award more
than this amount.3 The UAW does not point to any case law
to suggest that any error occurred here, and we have found
none to support the union's position. The UAW has failed to
show that the district court abused its discretion in
determining that the jury's award of damages was supported
by competent and credible evidence.




    3
       It appears that the jury may have considered overtime compensation
in calculating LaPerriere's damages. At trial, LaPerriere testified that
while at Chrysler he worked forty hours a week with little overtime. After
Chrysler terminated him, LaPerriere worked seventy-two hours a week for
less money. Thus, LaPerriere testified that as a result of his termination
from Chrysler he had to work an additional thirty hours each week, and
he still made less money than at Chrysler. The jury may have factored the
overtime LaPerriere would have earned if he worked thirty hours a week
of overtime at Chrysler.
