                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 14a0367n.06

                                             No. 13-3822


                           UNITED STATES COURTS OF APPEALS
                                FOR THE SIXTH CIRCUIT                                        FILED
                                                                                      May 15, 2014
                                                                                  DEBORAH S. HUNT, Clerk
PRINCESS WELLS,                                             )
                                                            )
        Plaintiff-Appellant,                                )
                                                            )
                                                                    ON APPEAL FROM THE
v.                                                          )
                                                                    UNITED STATES DISTRICT
                                                            )
                                                                    COURT FOR THE
CHRYSLER GROUP LLC; UAW LOCAL 1435,                         )
                                                                    NORTHERN DISTRICT OF
                                                            )
                                                                    OHIO
        Defendants-Appellees.                               )
                                                            )
                                                            )



BEFORE:         MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*

        ROGERS, Circuit Judge. Plaintiff-appellant Princess Wells appeals the district court’s

judgment dismissing her employment discrimination claims, based on Title VII and the

Americans with Disabilities Act (ADA), against her former employer, Chrysler Group LLC, and

her union, the United Automobile, Aerospace and Agricultural Implement Workers of America

(“UAW”), Local 1435. Wells v. Chrysler Grp. LLC, No. 3:08CV2264, 2013 WL 2631371 (N.D.

Ohio June 11, 2013). Upon review of the briefs and record, we find that the district court’s

opinion sufficiently addresses most of the issues raised by the parties on appeal. Because the

issuance of a detailed written opinion would be duplicative and would serve no useful purpose,

we adopt the reasons stated by the district court, with the following qualifications.


        *
          The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee,
sitting by designation.
No. 13-3822, Wells v. Chrysler Grp. LLC, et al.


       With respect to Wells’s ADA claim for the period during which Dr. Hall stated that she

could work but could not use her dominant (left) arm or hand, Wells failed to create a genuine

issue of material fact about whether there were vacant positions at the plant that she could have

filled. The former union stewards’ vague, conclusory statements about there being menial tasks

for restricted workers do not suffice, especially since neither of them claimed to have knowledge

of Wells’s extraordinary restriction of not being able to use her dominant arm and hand. For

example, although Edward Phillips opined, “I mean, a lot of times, you just have people over in

the corner sweeping the floor,” it does not follow that a non-dominant-hand-only worker would

be given such a job. In contrast, the labor relations supervisor Nick Weber, who had personal

knowledge of Wells’s situation, stated explicitly that there were no vacant one-handed positions

for a production operator like Wells. The ADA does not require Chrysler to have placed Wells

in a position that was not vacant at the time. Smith v. Ameritech, 129 F.3d 857, 867 (6th

Cir.1997). Nor does the ADA require Chrysler to shift responsibilities among other employees

in order to create a position that is not already in existence at the time. See Hoskins v. Oakland

Cnty. Sheriff’s Dept., 227 F.3d 719, 729 (6th Cir. 2000).

       Regarding the discrimination claim against the union, the district court employed the

proper standard when it dismissed the claim for failure to demonstrate a breach of the duty of fair

representation. Wells argues that she did not bring a claim for a breach of the duty of fair

representation, but rather that her claims were for race and sex discrimination under Title VII.

Appellant’s Br. at 29. This meritless argument raises form above substance. What Wells now

argues that she actually claimed is what the district court actually considered, albeit with an

inconsequential difference in name and emphasis.




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No. 13-3822, Wells v. Chrysler Grp. LLC, et al.


          The duty of fair representation incorporates a requirement that the union not act

discriminatorily.    See Emswiler v. SCX Transp., Inc., 691 F.3d 782, 793 (6th Cir. 2012).

Additionally, Title VII makes it unlawful for a union to deny fair representation based upon race

or sex. See 42 U.S.C. § 2000e-2(c)(1); Goodman v. Lukens Steel Co., 482 U.S. 656, 668–69

(1987). Indeed, district courts in this circuit—following the Seventh Circuit’s test in Bugg v.

International Union of Allied Industrial Workers of America, Local 507 AFL-CIO, 647 F.2d 595,

598 n.5 (7th Cir. 1982)—have required Title VII plaintiffs to prove that a union breached its duty

of fair representation. Beshears v. Hennessey Indus., Inc., No. 3:12-00087, 2012 WL 6093457,

at *2 (N.D. Tenn. Dec. 7, 2012); Hout v. City of Mansfield, 550 F. Supp. 2d 701, 727 (N.D. Ohio

2008). Therefore, a claim that the duty of fair representation was breached on account of

discrimination and a claim of discrimination in failing to fairly represent the employee are

essentially the same. Other courts have recognized this commonality in similar cases. See

Agosto v. Corr. Officers Benevolent Ass’n, 107 F. Supp. 2d 294, 304 (S.D.N.Y. 2000) (collecting

cases).

          Wells’s claim is accurately characterized as a claim that the union denied her the

representation she otherwise would have received were it not discriminating against her on the

basis of sex, age, or race. This would be both discrimination and a violation of the duty of fair

representation—the difference here is naught. On appeal, Wells does not challenge the district

court’s determination that the union did not breach its duty of fair representation,1 and we affirm



         The district court may have truncated the fair-representation test by suggesting that “[t]he
          1

relevant issue in assessing a Union’s judgment is not whether it acted incorrectly, but whether it acted in
bad faith.” Wells v. Chrysler, 2013 WL 2631371, at *13 (quoting Anderson v. Ideal Basic Indus., 804
F.2d 950, 953 (6th Cir. 1986)). A proper statement of the complete test appears to be that “[a] breach of
the statutory duty of fair representation occurs only when a union’s conduct toward a member of the
collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Bowerman v. Int’l Union, United
Auto., Aerospace and Agric. Implement Workers of Am., Local No. 12, 646 F.3d 360, 368 (6th Cir. 2011)
(quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)) (emphasis added); see also Anderson, 804 F.2d at 952.
                                                   -3-
No. 13-3822, Wells v. Chrysler Grp. LLC, et al.


the dismissal of Wells’s discrimination claim against the union on that ground. “Unions are not .

. . obligated to prosecute grievances that they find to be meritless.” Kelsey v. FormTech Indus.,

305 F. App’x 266, 269 (6th Cir. 2008) (citing Williams v. Molpus, 171 F.3d 360, 366–67 (6th

Cir. 1999)).

        Finally, Wells also argues that the district court failed to address her harassment and

discrimination claims that were brought under the ADA. Appellant’s Br. at 18–19, 29–30 & n.4.

It is true that the district court appeared to treat the ADA claims as based solely on a failure to

accommodate. The gravamen of Wells’s complaint is that Chrysler discriminated by failing to

find a position for her, which is naturally construed as a failure to accommodate. Wells’s

argument is somewhat confusing, because “discrimination” under the ADA is a general term that

encompasses, among other theories, disparate treatment, harassment, and failure to

accommodate. See 42 U.S.C. § 12112(a)–(b); see also Rorrer v. City of Stow, 743 F.3d 1025,

1038–39 (6th Cir. 2014) (failure to accommodate); Raytheon v. Hernandez, 540 U.S. 44, 53

(2003) (disparate treatment); Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir. 1998)

(harassment). Wells did not present a sustained argument in either her response in the district

court or in her appellate brief before this court as to the theory under which she brings her claim.

        Regardless of the theory of the claim, Wells has to rebut Chrysler’s articulated non-

discriminatory rationale for treating Wells as it did. See Whitfield v. Tennessee, 639 F.3d 253,

259 (6th Cir. 2011). Although the district court did not address pretext in the context of Wells’s

ADA claims, the district court correctly determined that Wells failed to meet her burden of


This mischaracterization of the test makes no difference in this case, though. Arbitrariness,
discrimination, and bad faith overlap considerably in practice, as demonstrated by the statement that “[a]
union's actions are improperly discriminatory if they are intentional, severe, and unrelated to legitimate
union objectives, and they are in bad faith if made with improper intent or motive.” Bowerman, 646 F.3d
at 368 (citation and internal quotation marks omitted). With that in mind, the district court substantially
applied the proper test, and its ultimate assessment of the claim was correct.
                                                   -4-
No. 13-3822, Wells v. Chrysler Grp. LLC, et al.


showing a genuine dispute regarding pretext with respect to the sex, age, and race discrimination

claims. See Wells v. Chrysler, 2013 WL 2631371, at *8–11. Because the district court’s

reasoning with respect to pretext applies with equal force in the ADA context, the ADA claims

were properly dismissed.

       Accordingly, we AFFIRM the judgment of the district court.




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