                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0532n.06

                                            No. 09-6398

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                         FILED
MARTY GILBERT,                                        )                             Aug 02, 2011
                                                      )
       Plaintiff-Appellant,                           )                       LEONARD GREEN, Clerk
                                                      )
v.                                                    )
                                                      )
COUNTRY MUSIC ASSOCIATION, INC.;                      )
COUNTRY MUSIC TELEVISION, INC.;                       )
MTVN DIRECT, INC.; INTERNATIONAL                      )     ON APPEAL FROM THE UNITED
ALLIANCE OF THEATRICAL STAGE                          )     STATES DISTRICT COURT FOR THE
EM PLOYEES , M OVING P IC TURES                       )     MIDDLE DISTRICT OF TENNESSEE
TECHNICIANS, ARTISTS AND ALLIED                       )
CRAFTS OF THE UNITED STATES AND                       )
CANADA; INTERNATIONAL ALLIANCE OF                     )
THEATRICAL STAGE EMPLOYEES,                           )
MOVING PICTURES TECHNICIANS,                          )
ARTISTS AND ALLIED CRAFTS OF THE                      )
UNITED STATES AND CANADA LOCAL 46,                    )
                                                      )
       Defendants-Appellees.                          )
                                                      )


       Before: SUTTON and COOK, Circuit Judges; GREER, District Judge.*


       SUTTON, Circuit Judge. After Marty Gilbert complained that a co-worker had threatened

him based on his sexual orientation, a union hiring hall refused to provide Gilbert with work. Gilbert

filed this lawsuit, alleging sex discrimination and breach of the union’s duty of fair representation.

The defendants, a collection of employers and Gilbert’s local and international union, filed motions

       *
       The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 09-6398
Gilbert v. Country Music Ass’n, Inc.

to dismiss, and the district court granted them. Although the relevant federal and state laws do not

prohibit sexual-orientation discrimination (requiring affirmance of most of the district court’s

decision), his breach-of-duty claim against the local union may proceed (requiring reversal in part).


                                                  I.


       A theater professional, Gilbert organizes awards ceremonies such as the Country Music

Association (CMA) Awards and the “Stellar Awards.” He is a member of Nashville’s Local 46

chapter of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians,

Artists and Allied Crafts of the United States and Canada (IATSE). CMA, along with MTVN Direct

and Country Music Television (CMT), has “exclusive hiring hall agreements” with Local 46. R.5

¶ 17. Under these arrangements, a union refers members to various employers for jobs.


       Through a referral from Local 46’s hiring hall, CMA hired Gilbert to work on the 2007 CMA

Awards. Gilbert is openly homosexual and, while working the show, a union worker named Milton

Jones called him a “faggot” and threatened to stab him. This was not an empty threat, as Jones was

facing criminal charges for “having stabbed several homosexuals” in Atlanta. Id. ¶ 21. After Gilbert

complained, Local 46 stopped referring Gilbert for jobs and changed its referral process to prevent

him from qualifying for other jobs. In 2008, Local 46 did not refer Gilbert for his previous job with

the CMA Awards, forcing Gilbert to accept “less distinguished and lower paying” freelance work

directly from CMA. Id. ¶ 31. After Gilbert had secured work at the 2009 Stellar Awards, the Local

46 president convinced the Awards’ organizers to withdraw their agreement with Gilbert. The union


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also sent an “unsolicited forged letter . . . purported to be sent from [a] third-party” to CMA, CMT

and MTVN describing Gilbert’s alleged “misconduct” at the 2008 CMA Awards. Id. ¶ 35.


       When Gilbert complained about Local 46’s refusal to refer him for a job at the 2008 CMA

Awards, the union filed charges against him based on “events” that occurred at the 2008 awards

show. Id. ¶ 33. Gilbert denied the charges, claiming they were filed in retaliation for speaking out

about being harassed. The union found him guilty and suspended him for six months, causing him

to lose job opportunities at MTVN, CMT and CMA.


       Gilbert filed a complaint in federal court against Local 46, IATSE, CMA, CMT and MTVN

alleging (1) “interference with employment opportunities,” (2) discrimination and retaliation under

the Tennessee Human Rights Act (THRA), (3) breach of the duty of fair representation and

(4) breach of a labor agreement. Gilbert did not raise any federal Title VII claims because he was

waiting for notice-to-sue letters from the EEOC.


       The defendants filed motions to dismiss. Soon after, the EEOC letters arrived, and Gilbert

moved to amend his complaint to add Title VII claims.


       The district court granted defendants’ motions to dismiss and appeared to deny Gilbert’s

request to amend his complaint. Gilbert appeals (1) the dismissal of his discrimination and

retaliation claims, and (2) the dismissal of his breach of duty-of-fair-representation claims against

IATSE and Local 46.



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Gilbert v. Country Music Ass’n, Inc.

                                                  II.


        Title VII forbids employers and labor organizations from “discriminat[ing] against any

individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1), (c)(1). The THRA says roughly the same thing, see Tenn. Code Ann. § 4-21-401,

which is why Tennessee law treats THRA and Title VII claims the same, see Sybrandt v. Home

Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 2009). Under Title VII, “sexual orientation is not

a prohibited basis for discriminatory acts.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th

Cir. 2006). A claim premised on sexual-orientation discrimination thus does not state a claim upon

which relief may be granted.


        Title VII, however, does prohibit discrimination “because of . . . sex,” a protection that in

some circumstances extends to “sex-stereotyping” claims. In Price Waterhouse v. Hopkins, an

employer passed over a female accountant for partnership in part because she was too “macho” and

not “feminine[]” enough. 490 U.S. 228, 235 (1989) (plurality opinion). This amounted to sex

discrimination, the Court concluded, because an employer that “acts on the basis of a belief that a

woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250.

An employer, in other words, discriminates “because of . . . sex” when it makes decisions based on

the “degree to which an individual conforms to traditional notions of what is appropriate for one’s

gender.” Vickers, 453 F.3d at 762. If an employee pleads “sufficient factual matter” to show

discrimination on the basis of sex stereotyping, he thus may survive a motion to dismiss. See

Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1948 (2009).

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          Once before, this court addressed this “curious distinction,” Hamm v. Weyauwega Milk

Prods., Inc., 332 F.3d 1058, 1066 (7th Cir. 2003) (Posner, J., concurring), between sexual-

orientation and sex-stereotyping discrimination. In Vickers v. Fairfield Medical Center, a security

guard at a hospital was the victim of “frequent derogatory comments” by co-workers, who called him

a “fag” and “gay” and physically harassed him. 453 F.3d at 759. Vickers sued under a sex-

stereotyping theory, arguing that “in the eyes of his co-workers, his sexual practices, whether real

or perceived, did not conform to the traditionally masculine role. Rather, in his supposed sexual

practices, he behaved more like a woman.” Id. at 763. We rejected Vickers’s theory, holding that

a sex-stereotyping claim required that he show discrimination based on gender non-conforming

“behavior observed at work or affecting his job performance,” such as his “appearance or

mannerisms on the job.” Id. “[I]n Price Waterhouse,” we explained, that included the plaintiff’s

“manner of walking and talking at work, as well as her work attire and her hairstyle.” Id.; see Price

Waterhouse, 490 U.S. at 235 (plurality opinion). But Vickers alleged nothing of the sort, prompting

us to dismiss his suit because the charged conduct “is more properly viewed as harassment based on

Vickers’ perceived homosexuality, rather than based on gender non-conformity.” Vickers, 453 F.3d

at 763.


          Gilbert’s claim fails for similar reasons. His complaint says that he is “an openly homosexual

male,” R.5 at ¶ 18, then adds the following: (1) Gilbert’s co-worker threatened to stab Gilbert and

“any other ‘faggot’ working with them” because Gilbert “and homosexual males did not conform

to [Jones’s] male stereotypes,” R.5 ¶ 19; (2) union officials were “aware that [Gilbert] was


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Gilbert v. Country Music Ass’n, Inc.

homosexual at the time” he reported Jones’s threats, R.5 ¶ 25, and acted against him on this basis;

and (3) at a union meeting where Jones advocated amending the union’s constitution and bylaws to

prohibit sexual-orientation discrimination, a fellow union member “loudly uttered bigoted comments

regarding [Gilbert]’s sexuality and insist[ed] that homosexual[s] not be permitted to disclose to

other[] union members that they are homosexual.” R.5 ¶ 28.


        Gilbert’s allegations involve discrimination based on sexual orientation, nothing more. He

does not make a single allegation that anyone discriminated against him based on his “appearance

or mannerisms” or for his “gender non-conformity.” Vickers, 453 F.3d at 763. For all we know,

Gilbert fits every male “stereotype” save one—sexual orientation—and that does not suffice to

obtain relief under Title VII.


        Gilbert raises up one assertion in his complaint as the answer to this problem. He alleges that

Jones threatened to stab him because “[Gilbert] and homosexual males did not conform to [Jones’s]

male stereotypes.” R.5 ¶ 19. But this is simply a “formulaic recitation” of the elements of a sex-

stereotyping cause of action and by itself “will not do.” Iqbal, 129 S. Ct. at 1949. Because the

conduct Gilbert opposed was not an “unlawful employment practice,” 42 U.S.C. § 2000e-3(a), his

retaliation claims must also fail. See Barrett v Whirlpool Corp., 556 F.3d 502, 520 (6th Cir. 2009);

see also Hamm, 332 F.3d at 1066 (claim of harassment on the basis of sexual orientation cannot give

rise to a Title VII retaliation claim).




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        No doubt, the events Gilbert describes, if true, are at least in bad taste if not themselves

deserving of condemnation. But Gilbert cannot “bootstrap protection for sexual orientation into Title

VII” under the guise of a sex-stereotyping claim. Vickers, 453 F.3d at 764. Although many States

prohibit sexual-orientation discrimination, see, e.g., Colo. Rev. Stat. Ann. § 24-34-402; Mass. Gen.

Laws Ann. ch. 151B, § 4, federal law and Tennessee law do not.


                                                 III.


        That leaves Gilbert’s duty-of-fair-representation claim against Local 46 and its parent

organization, IATSE. There is some ambiguity about how the district court treated this claim and

what precisely it thought was before it. The court apparently rejected his hybrid claim under the

LMRA (which Gilbert no longer pursues) but never addressed his duty-of-fair-representation claim

as an independent theory of relief. See Pratt v. UAW, Local 1435, 939 F.2d 385, 390 (6th Cir. 1991).

In view of the Rule 12(b)(6) stage of this case, we think the district court prematurely dismissed the

latter claim.


        The duty of fair representation requires a union to “serve the interests of all members without

hostility or discrimination toward any, to exercise its discretion with complete good faith and

honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). The duty applies

to “all union activity,” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S 65, 67 (1991), including the

union’s operation of a hiring hall, see Breininger v. Sheet Metal Workers Int’l Ass’n Local Union




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Gilbert v. Country Music Ass’n, Inc.

No. 6, 493 U.S. 67, 87–88 (1989). A union violates its duty of fair representation if its actions are

“arbitrary, discriminatory, or in bad faith.” O’Neill, 499 U.S at 67.


        Gilbert alleges that Local 46: (1) refused to refer him for jobs he had previously performed

and was otherwise qualified for, going so far as to change its usual referral process; (2) contacted

Stellar Awards and convinced it to cancel an agreement with Gilbert; (3) sent an “unsolicited forged

letter” to Gilbert’s employers complaining about Gilbert, R.5 ¶ 35; and (4) convicted him of baseless

membership charges, resulting in his suspension and inability to seek employment through the hiring

hall.


        Taken together, Gilbert’s allegations state a claim that Local 46’s conduct at a minimum was

arbitrary or in bad faith. Most damaging is the allegation that Local 46 abused its hiring-hall

authority to undermine Gilbert’s work opportunities. “[T]here is no balance of power,” the Supreme

Court has recognized, in hiring halls because “the union has assumed the mantle of employer, [and]

the individual employee stands alone against a single entity: the joint union/employer.” Breininger,

493 U.S. at 89. Because a union “wield[s] additional power in a hiring hall” and an “improperly

functioning hiring hall” readily can lead to abuse, the Supreme Court has noted that the union’s

“responsibility to exercise that power fairly increases rather than decreases.” Id.


        Consistent with these requirements, Gilbert says that Local 46 abused its power by

blacklisting Gilbert from future job opportunities despite his qualifications and experience and by

undermining his efforts to obtain other work. If true, this conduct falls “so far outside a wide range


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of reasonableness that it is wholly irrational,” and constitutes “arbitrary” conduct in violation of the

union’s duty of fair representation. Merritt v. Int’l Ass’n of Machinists & Aerospace Workers, 613

F.3d 609, 619 (6th Cir. 2010); cf. NLRB v. Int’l Bhd. of Elec. Workers, Local Union 16, 425 F.3d

1035, 1040 (7th Cir. 2005) (“A union is presumed to have breached its duty of fair representation

if . . . it refuses to refer a member who is eligible under [a hiring-hall] agreement.”); Plumbers &

Pipe Fitters Local Union No. 32 v. NLRB, 50 F.3d 29, 34 (D.C. Cir. 1995). Gilbert’s allegations that

Local 46 sent forged letters to Gilbert’s employers and found him guilty of baseless charges in

retaliation for his complaints about discrimination also suggest it acted in bad faith through “fraud,

dishonesty, and other intentionally misleading conduct.” Merritt, 613 F.3d at 619.


        Although this claim survives at the pleading stage against Local 46, the same is not true with

respect to IATSE. Local 46 and IATSE are separate legal entities, and Gilbert’s complaint does not

offer a single fact suggesting IATSE had anything to do with Local 46’s misconduct, let alone that

IATSE did anything that was “arbitrary, discriminatory, or in bad faith.” Gilbert also has not

sufficiently pled an agency relationship between Local 46 and IATSE. Nothing in his complaint

suggests that IATSE “instigated, supported, ratified, or encouraged” Local 46’s actions, or that Local

46 acted “in accordance with their fundamental agreement of association.” Alexander v. Local 496,

Laborers’ Int’l Union of N. Am., 177 F.3d 394, 409 (6th Cir. 1999).




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                                                IV.


       For these reasons, we affirm in part and reverse in part (reversing only the district court’s

disposition of the breach-of-duty claim against Local 46) and remand for further proceedings.




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