              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0120n.06
                         Filed: February 12, 2009

                                             No. 07-2559

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

RONALD J. KNIGHTEN,

        Plaintiff-Appellant,

                v.                                              On Appeal from the United
                                                                States District Court for
GENERAL MOTORS CORP.; UAW LOCAL 598,                            the Eastern District of
                                                                Michigan
        Defendants-Appellees.
                                                    /

Before:         GUY and GRIFFIN, Circuit Judges; and WATSON, District Judge.*

        MICHAEL H. WATSON, District Judge.                          Plaintiff Ronald J. Knighten

(“Knighten”) appeals the district court’s order granting summary judgment for Defendants

General Motors Corporation (“GMC”) and UAW Local 598 (“Local 598”) on his hybrid

§ 301 claim under the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185.

Concluding that Knighten failed to exhaust his administrative remedies, we affirm.

                                                   I.

A.      Summary of Events

        In 1979, Knighten began working as an hourly production worker at the GM Flint

Truck Assembly Plant. With the exception of a two-month period in 1985, Knighten has

        *
          The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 07-2559                                                                            2

been a member of Local 598 his entire career with GMC. In 1985, Knighten began an

apprenticeship to become a journeyman pipefitter. He completed the apprenticeship in 1988

and worked as a journeyman pipefitter in the plant ever since.

       As a journeyman pipefitter, Knighten works throughout the plant. This position

requires Knighten to possess an in-plant driver’s license and operate various types of

equipment in the plant. Every person at GMC who possesses an in-plant driver’s license is

required to renew it every three years. The renewal process requires an employee to take a

physical exam, including an eye exam, and to take refresher training regarding the safe

operation of mobile equipment.

       In October 2005, GMC required Knighten to take a physical exam, including an eye

exam. Knighten failed the eye exam. Upon failing the eye exam, GMC prohibited Knighten

from driving in-plant vehicles. He was still able to work overtime because he had an

appointment with his eye doctor on November 21, 2005. Additionally, GMC provided

Knighten with the opportunity to retake the test after consulting his eye doctor and correcting

his vision problem.

       Knighten suffers from keratoconus, a degenerative, non-inflammatory disorder of the

eye in which structural changes within the cornea cause it to thin and change to a more

conical shape than its normal gradual curve. In most cases, corrective lenses permit a person

to continue to drive legally and function normally. Fitting contact lenses for this condition
No. 07-2559                                                                                 3

is delicate and time-consuming and may require a number of visits before the fit and

prescription are correct.

       On November 24, 2005, Knighten brought a medical form to the GMC medical office

which purported to be approval by his personal physician to drive equipment in the plant.

Knighten, however, neither allowed GMC’s medical office to make a copy of the form nor

would he take another eye exam. As a result, on November 27, 2005, GMC deferred

Knighten from overtime until he passed the eye exam.

       Local 598 representatives repeatedly urged Knighten to either give GMC permission

to review his medical records or allow GMC’s doctor to talk with his eye doctor. Knighten,

however, was not receptive to the advice.

       The evening of December 5, 2005,1 Knighten was told to report to Labor Relations

to meet with his supervisor and a Labor Relations representative. At the meeting, they

deferred Knighten from working both straight time and overtime until he resolved his vision

issue. The deferral was not disciplinary as he was able to return to work as soon as he either

cooperated with GMC in providing information regarding his medical condition or he passed

a vision test.

       After the meeting, Earvin Burnom, the district committeeman, told Knighten that he

would not file a grievance on Knighten’s behalf because he refused the various requests for



       1
        Knighten’s deposition testimony states December 5, 2005, and the notes of the district
committeeman, Earvin Burnom, indicate December 6, 2005. The “confusion” is due to the fact the
meeting occurred close to midnight, December 6, 2005.
No. 07-2559                                                                              4

GMC to speak with his eye doctor. As such, Burnom felt the grievance would not be

justified.

       Earlier on December 5, 2005, Knighten visited his eye doctor for a contact lens trial.

He returned to his eye doctor on December 12, 2005, for a contact lens collection. His

lenses, however, had not arrived. He returned for a follow-up visit on December 19, 2005,

at which time new contact lenses were ordered, with an anticipated two to three week

delivery date. Knighten again went to his eye doctor on December 23, 2005, for a contact

lens collection and was told to return in three weeks.

       On December 24, 2005, Knighten brought a letter, dated December 22, 2005, from

his eye doctor to the GMC medical department. The letter stated Knighten was in the process

of being fitted with new contact lenses to help resolve his vision issue. Additionally, it stated

that Knighten met all state and federal requirements for a full motor vehicle license and

provided his test scores from his November 21, 2005 eye exam. This was the first time the

test scores from the November 21, 2005 exam were provided. The test scores in the letter,

however, do not match the test scores in his medical records for November 21, 2005.

       On December 26, 2005, the GMC medical department gave Knighten an eye exam,

but he was unable to pass it. On January 3, 2006, he was again given the exam, this time

wearing his new contact lenses, and again he did not pass it. At that point in time, Knighten

made an appointment with GMC’s physician for January 9, 2006.
No. 07-2559                                                                           5

       On January 9, 2006, after reviewing the letter from Knighten’s treating eye doctor and

giving him a reading test, the GMC doctor determined Knighten passed his physical and

renewed his in-plant license. Knighten returned to work that evening.

B.     UAW Appeal Process

       On March 11, 2006, Knighten mailed an appeal to Local 598’s Recording Secretary

contesting Local 598’s refusal to file a grievance concerning his deferral from work.

Knighten made no inquiries as to when the appeal would be considered. The appeal was

scheduled to be heard at the next regularly scheduled Local 598 membership meeting.

Knighten knew Local 598 held its meeting on the third Sunday of every month. On March

19, 2006, the meeting at which the appeal was to be heard, Knighten failed to appear to

present his case to the membership.

       Local 598 notified Knighten, by letter dated April 19, 2006, that his appeal was denied

by the local membership. Knighten then filed an appeal with the International Union, United

Automobile Aerospace & Agricultural Implement Workers of America (“International

Union”) on April 19, 2006. After filing the appeal with the International Union, Knighten

did not take any further steps to exhaust the UAW Constitution’s appeals procedure. Instead,

Knighten filed a Complaint in federal court on June 2, 2006.

       On June 28, 2006, the International Union notified Knighten he needed to provide

additional information in order to perfect his appeal. Knighten did not respond to the

International Union’s letter and never provided any further information to the International
No. 07-2559                                                                          6

Union. It is undisputed that Knighten never perfected his appeal to the International

Executive Board (“IEB”) and never appealed to the UAW Convention Appeals Committee

(“CAC”) or the Public Review Board (“PRB”) under the International Union Constitution.

C.     UAW/GMC Contract

       The International Union and GMC have been parties to a series of National

Agreements for decades. The National Agreement covers UAW-represented employees at

plants operated by GMC throughout the United States and provides governing terms and

conditions of employment.

       The 2003 National Agreement contained a grievance and arbitration procedure. Local

598 informed Knighten that its position was the deferral from work was not a violation of

the CBA and, therefore, Local 598 would not process a grievance over the deferral.

D.     UAW Constitution

       Article 33, Section 1 of the UAW Constitution permits appeals of “any action,

decision or penalty by” . . . “[a] Local Union, or any of its units, committees, officers,

committeepersons or stewards . . . .” Article 33, Section 5 provides:

       It shall be the duty of any individual or body, if aggrieved by any action,
       decision or penalty imposed, to exhaust fully the individual or body’s remedy
       and all appeals under this Constitution and the rules of this Union before
       going to a civil court or governmental agency for redress.

       The steps in the appeal process are as follows:

       1.     Local Union’s membership;
       2.     IEB;
       3.     CAC or PRB.
No. 07-2559                                                                           7

The IEB, PRB and CAC are authorized to order the UAW to pay money damages to an

aggrieved member or order the processing of a grievance which was wrongfully disposed.

E.     District Court Decision

       On November 30, 2007, the district court issued its opinion and order granting GMC’s

and Local 598’s motions for summary judgment. The district court held that summary

judgment was appropriate due to Knighten’s failure to exhaust his administrative remedies

prior to filing his lawsuit. The district court further held that, even if all of Knighten’s

allegations of hostility on the part of Local 598 were accepted as true, Knighten failed to

demonstrate that exhaustion was futile because he failed to present any evidence of hostility

on the part of the International UAW or PRB.

       The district court also held that Knighten failed to argue that the intra-union appeal

procedures would be inadequate to award him the relief he sought or that exhaustion would

unreasonably delay his ability to obtain a judicial hearing on the merits. The district court

did not reach Knighten’s arguments that GMC breached the CBA or that Local 598 breached

its duty of fair representation. This appeal followed.

                                             II.

       We review a grant of summary judgment de novo. Miller v. Admin. Office of the

Courts, 448 F.3d 887, 893 (6th Cir. 2006). The moving party is entitled to summary

judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled to
No. 07-2559                                                                          8

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). We view factual evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in that party’s favor. See Henderson

v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir. 2006). Summary judgment is not

appropriate if the evidence would permit a reasonable jury to return a verdict for the

non-moving party. Anderson, 477 U.S. at 251-52.

       Knighten asserts a hybrid § 301claim under the LMRA against Local 598 and GMC.

An employee seeking relief pursuant to § 301 is required “to exhaust any exclusive grievance

and arbitration procedures established by [the collective bargaining] agreement before he

may maintain a suit against his union or employer . . . .” Clayton v. Automobile Workers, 451

U.S. 679, 681 (1981) (citations omitted). Nonetheless, an employee does not have to exhaust

internal union procedures if doing so is futile. Ryan v. General Motors Corp., 929 F.2d

1105, 1110 (6th Cir. 1991). The Clayton court set forth three relevant factors, any one of

which could excuse the employee’s failure to exhaust:

       1.     whether union officials are so hostile to the employee that he could not hope
              to obtain a fair hearing on his claim;

       2.     whether the internal union appeals procedures would be inadequate either to
              reactivate the employee’s grievance or to award him the full relief he seeks
              under § 301; and

       3.     whether exhaustion of internal procedures would unreasonably delay the
              employee’s opportunity to obtain a judicial hearing on the merits of his claim.
No. 07-2559                                                                          9

Clayton, 451 U.S. at 549. Further, the Sixth Circuit mandates “a clear and positive showing

of futility before excusing a failure to exhaust . . . .” Cotter v. Daimler Chrysler, 87

F.Supp.2d 746, 752 (E.D. Mich. 2000) (quoting Miller v. Chrysler Corp., 748 F.2d 323, 326

(6th Cir. 1984)).

       It is undisputed that Knighten did not exhaust the internal union remedies available

to him. He argues, however, it would have been futile for him to do so because of Local

598's hostility toward him. Assuming Local 598 was hostile toward Knighten, the evidence

does not establish a clear and positive showing of futility which would excuse his failure to

exhaust. With respect to hostility, it is not enough that an employee demonstrate hostility

toward him by the local union. Instead, he must also demonstrate hostility toward him by the

International UAW and PRB. Monroe v. International Union, UAW, 723 F.2d 22, 25 (6th

Cir. 1983); Wagner v. General Dynamics, 905 F.2d 126, 128 (6th Cir. 1990). Knighten fails

to demonstrate that Local 598, International UAW and PRB were all so hostile to him that

he could not hope to obtain a fair hearing. To the contrary, Knighten admits he is unaware

of whether members of the International UAW and PRB harbored animosity toward him.

(J.A. 514, 1250-1251). Moreover, Knighten filed his lawsuit on June 2, 2006, prior to

receiving the International UAW’s June 28, 2008 letter requesting additional information

regarding his appeal. (J.A. 238-243, 1252-1254). As such, Knighten fails to present a clear

and positive showing of futility which would excuse his failure to exhaust.
No. 07-2559                                                                             10

       Knighten does not assert arguments with respect to the remaining two factors. Thus,

the record does not demonstrate a clear and positive showing of futility sufficient to excuse

Knighten’s failure to exhaust the internal union remedies available to him.

       Finally, Knighten argues he should be excused from exhausting his internal

union remedies because he was in a “Catch 22” situation between the six-month statute of

limitations deadline and the exhaustion requirement. This Court,           however, held this

argument is without merit:

       Finally, plaintiff argues that the dilemma of whether to pursue internal union remedies
       or comply with the six-month statute of limitations leaves employees in a “Catch 22.”
       That is, an employee must file suit within six months or have his claims barred by the
       statute of limitations, and if he files suit, the action will be dismissed for failure to
       exhaust internal union appeals. But, if he pursues the internal union appeals first, six
       months will elapse before he can exhaust those remedies and his claim will be barred
       by the statute of limitations. This very problem was addressed in Dunleavy [v. Local
       1617, United Steelworkers, 814 F.2d 1087, 1089 (6th Cir. 1987)], which held that the
       limitations period should be tolled while an employee diligently pursues his available
       internal union remedies. An employee wishing to bring a hybrid § 301 claim may not
       disregard either the limitations period or the exhaustion requirement, and compliance
       with one does not excuse the failure to satisfy the other.

Howell v. General Motors Corp., 19 Fed. Appx. 163, 165-166 (6th Cir. 2001),

       Accordingly, the district court did not err in granting summary judgment to Local 598

and GMC. Knighten did not exhaust his internal union remedies and the evidence does not

support a finding that to do so would have been futile. Lastly, Knighten is not excused from

exhausting his internal union remedies because of his concern regarding the statute of

limitations as it was tolled while he was diligently pursuing his internal union remedies.
No. 07-2559                                                                    11

Consequently, the Court will not address whether GMC breached the CBA or whether Local

598 breached its duty of fair representation.

       AFFIRMED.
