                            NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 16a0157n.06

                                                 No. 14-2630


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

HARRY L. HOLLINGSWORTH,                                           )                              FILED
                                                                  )                       Mar 18, 2016
        Plaintiff-Appellant,                                      )                   DEBORAH S. HUNT, Clerk
                                                                  )
v.                                                                )
                                                                  )       ON APPEAL FROM THE
FORD MOTOR COMPANY; INTERNATIONAL                                 )       UNITED STATES DISTRICT
UNION, UNITED AUTOMOBILE, AEROSPACE                               )       COURT FOR THE EASTERN
AND AGRICULTURAL IMPLEMENT WORKERS                                )       DISTRICT OF MICHIGAN
OF AMERICA, LOCAL 600,                                            )
                                                                  )
        Defendants-Appellees.                                     )




BEFORE:          CLAY and ROGERS, Circuit Judges, and THAPAR, District Judge.*

        ROGERS, Circuit Judge. Harry Hollingsworth, a former Ford employee and member of

the International Union, United Automobile, Aerospace and Agricultural Implemental Workers

of America, Local 600 (UAW), appeals the district court’s grant of summary judgment to Ford

and the UAW on his hybrid § 301 claim under the Labor Management Relations Act. He

contends that Ford wrongfully withheld funds from several checks relating to his retirement

package and the settlement of a prior grievance, and that the UAW breached its duty of fair

representation by failing to institute a grievance on his behalf.                 The district court granted

summary judgment to Ford and the UAW on the basis that the UAW did not owe Hollingsworth

a duty of fair representation. However, regardless of whether the UAW did or did not owe a

*
 The Honorable Judge Amul R. Thapar, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

Hollingsworth duty of fair representation, summary judgment to Ford and the UAW was

appropriate for another reason: Hollingsworth’s suit was filed after the expiration of the six-

month statute of limitations and is thus time barred.

       Ford terminated Hollingsworth on May 18, 2009, for allegedly misusing company funds.

R.58-2, at PageID# 2018. Ford claims that Hollingsworth fraudulently submitted duplicate cash

receipts for reimbursement and made improper expenses on a company credit card in the amount

of $6,140.36, R.51-5, at PageID# 1152, which Hollingsworth disputes, R.58-2, at PageID# 2020.

Two days after Hollingsworth’s termination, the UAW filed a grievance on his behalf pursuant

to the Ford-UAW CBA. R.50-4, at PageID# 904. On August 25, 2010, the parties settled the

grievance.   R.57-3, at PageID# 1536.        While the settlement agreement did not reinstate

Hollingsworth as an active employee, it did award Hollingsworth $20,000 and the ability to be

reinstated solely for the purpose of selecting a retirement separation package. Id. Upon his

reinstatement to choose his retirement separation package, he elected to receive two additional

cash payments, each with a pre-tax amount of $20,000. R.50-6, at PageID# 908 (Special

Retirement Incentive); R.50-7, at PageID# 910 (Alternative Cash Payment). Hollingsworth’s

retirement became effective on September 1, 2010. R.58-2, at PageID# 2053.

       Earlier, before Hollingsworth’s termination, Ford had realized that it had overpaid

Hollingsworth health benefits for his two children. R.51-4, at PageID# 1142-50. In 2008, Ford

began collecting weekly payroll deductions from Hollingsworth’s paychecks to recover the

overpaid benefits. R.58-2, at PageID# 2060. At the time of Hollingsworth’s termination, Ford

claims that he still owed $2,403.23 in the overpaid health benefits. R.58-2, at PageID#2069-70.

       While Hollingsworth’s termination grievance was pending, clerical errors caused Ford to

accidentally reinstate Hollingsworth as an active employee on two separate occasions. R.51-8, at


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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

PageID# 1157-58; R.51-8, at PageID# 1156. As a result, Ford’s system both times automatically

generated benefits that are reserved for active employees, to which Hollingsworth was not

entitled. R.51-8, at PageID# 1156-58. Ford states that Hollingsworth was issued multiple

active-employee benefit checks and that the checks’ stated gross amounts totaled $13,786.41.

R.57-3, at PageID# 1594. Several of the active-employee benefit checks had money withheld

from their gross amounts to repay Ford for the $6,140 in alleged credit card debt that led to

Hollingsworth’s termination.    R.57-3, at PageID# 1548, 1550; see Ford’s Br. at 7 n.1;

Hollingsworth’s Br. at 17.

       After his grievance settlement and retirement became final, Hollingsworth received three

checks from Ford (two retirement checks and one grievance settlement check). Each check

stated a gross amount of $20,000. The first retirement check had $2,403.23 deducted from it to

compensate Ford for the overpayment of health benefits to Hollingsworth’s children. R.57-3, at

PageID# 1593. Hollingsworth argues that these withholdings from his first retirement check

were improper because, he claims, he was never overpaid health benefits. R.58, at PageID#

1937, ¶ 17 (denying R.50-1, at PageID# 868, ¶ 17); R.50-3, at PageID# 885. The second

retirement check was not subject to any withholdings contested here. R.57-3, at PageID# 1593.

The third check—the grievance settlement check—had $13,786.41 deducted from it to

compensate Ford for the active-employee benefits that were accidentally paid out to

Hollingsworth. R.57-3, at PageID# 1594. For the most part, Hollingsworth agrees that he was

not entitled to the active-employee benefits. R.50-3, at PageID# 889; but see Hollingsworth’s

Br. at 18, 46 (arguing he was entitled to some of the SUB payments). However, because several

of the active-employee benefit checks had funds withheld from their gross amounts to repay Ford

for the alleged credit card debt, he complains that the fact that the full gross amounts of the


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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

active-employee benefit checks were withheld from his grievance settlement check means that

his grievance settlement was improperly reduced by the alleged credit card debt that led to his

termination. In short, Hollingsworth primarily contests a sum of roughly $8,500—the amount

that Ford withheld to recoup the allegedly overpaid health benefits plus the amount that Ford

withheld to recoup the alleged credit card debt.

       Hollingsworth claims that he contacted the UAW in April 2011, on the same day that he

received the last of his three checks from Ford. R.58-2, at PageID# 2104. He states that UAW

representatives informed him that they were investigating the deductions. R.58-3, at PageID#

2178. The UAW agrees that Hollingsworth spoke to a UAW representative over the phone and

in person about the deductions and that the representative stated that he was looking into the

matter. R.58-6, at PageID# 2489-91. Hollingsworth also emailed Ford directly in November

2012 and received a letter dated December 11, 2012, in which Ford detailed its reasons for each

of the deductions. R.57-3, at PageID# 1593-94. On January 4, 2013—some twenty-one months

after his initial discussions with the UAW—Hollingsworth sent a letter to the UAW requesting

that it file a formal grievance on his behalf. R.57-3, at PageID# 1560-62. The UAW sent a letter

refusing, on January 17, 2013. R.57-3, at PageID# 1571.

       On March 12, 2013, about two months after he received the letter from the UAW

refusing to file a grievance on his behalf, Hollingsworth sued Ford and the UAW in Michigan

state court. R.1-1, at PageID# 6-28. Hollingsworth did not file an internal complaint or appeal

with the UAW indicating that he was dissatisfied with its representation or challenging its

decision not to file a grievance on his behalf before filing suit. R.58-2, at PageID# 2121-23.

Hollingsworth’s complaint raised a breach of contract claim against Ford and a hybrid § 301

claim under the LMRA against both Ford and the UAW. Id. Ford removed the suit to the


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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

district court and filed a motion for judgment on the pleadings, which the district court converted

to a motion for summary judgment. R.1, at PageID# 1-5; R.21, at PageID# 207. The district

court entered partial summary judgment for Ford because Hollingsworth’s breach of contract

claim was preempted by the LMRA. R.25, at PageID# 246. The district court then denied

summary judgment to Ford on the issue of whether Hollingsworth’s hybrid § 301 claim was time

barred, finding that a genuine issue of material fact existed regarding when Hollingsworth knew

or should have known that the UAW was not going to file a grievance on his behalf. Id. at 247-

48.

        After conducting discovery, the UAW and Ford filed motions for summary judgment on

the hybrid § 301 claim. R.50, at PageID# 850-64; R.52, at PageID# 1188-1200. The district

court granted summary judgment to the UAW on the basis that the UAW did not owe

Hollingsworth a duty of fair representation. R.87, at PageID# 4115-17. The district court did

not reach the UAW’s remaining arguments that Hollingsworth’s claim is time barred, that he

failed to exhaust internal union remedies before filing suit, and that he has no evidence that the

UAW breached its duty of fair representation. Id. at 4115. Lastly, because a plaintiff with a

hybrid § 301 claim is required to prove both that the union breached its duty of fair

representation and that his employer breached the CBA, the district court granted summary

judgment to Ford without analyzing whether Ford breached the CBA because the court had

already concluded that Hollingsworth could not prevail on his claim against the UAW. Id. at

4117.

        Regardless of whether or not the district court correctly concluded that the UAW did not

owe Hollingsworth a duty of fair representation, summary judgment was appropriately granted to

the UAW and Ford because Hollingsworth’s suit is time barred. Hollingsworth’s claim accrued


                                                -5-
No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

sometime in April or May 2011; however, he did not file suit until March 2013, which is far

outside the six-month statute of limitations. The six-month statute of limitations that applies to

hybrid § 301 claims is measured from the date on which the employee knew or should have

known of the union’s or employer’s final actions constituting the alleged violations, whichever

occurred later. Robinson v. Cent. Brass Mtg. Co., 987 F.2d 1235, 1239 (6th Cir. 1993).

       First, Ford’s final action occurred in April 2011 when Hollingsworth received the last

check showing withheld funds. Hollingsworth argues that Ford’s final action was on December

11, 2012, when Ford sent a letter explaining why it made the deductions and “clearly

repudiate[d] its obligations under the Grievance Settlement.” Hollingsworth’s Supp. Br. at 7.

Hollingsworth appears to argue that prior to receiving the letter, he did not know that Ford would

not pay the rest of the money that he claims is owed to him; however, when a company

withholds funds from a check, a reasonable person does not expect that the company plans to

issue a later check for the amount of those withheld funds. Thus, Hollingsworth knew, or should

have known, that Ford breached the grievance settlement agreement by deducting funds from the

checks—and that Ford was not planning on ever paying him those funds—when he received the

last check in April 2011.

       Second, Hollingsworth should have known of the UAW’s final action—that it would not

file a grievance on his behalf regarding the deductions—in April or May 2011, when the UAW

failed to act within the short deadline prescribed by the CBA. A grievance under the Ford-UAW

CBA begins when an employee discusses the issue with Ford or with Ford and a UAW

representative together. R.19-2, at PageID# 188. If the issue remains unresolved and the union

wishes to appeal the grievance further, the union must provide notice of the first oral discussion

to Ford and initiate a second oral discussion with Ford within two working days. Id. at 188-89.


                                                -6-
No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

If the issue still remains unresolved and the union still wishes to appeal the grievance further, the

union must so specify on a written “Record of Oral Discussion” form and send that form to Ford

within two working days of the second oral discussion. Id. at 189. Ford has two more working

days after that to send the “Record of Oral Discussion” form back to the union. Id. The union

then has one week from that point to present a written grievance to Ford at a “Unit Grievance

Meeting.” Id. Any grievance that is not processed in accordance with the above procedure

“shall be considered settled, and such settlement shall be final and binding.”           Id. at 188.

Accordingly, Hollingsworth’s grievance began in April 2011, when he first spoke to a UAW

representative about the matter, and it was settled and binding once the UAW did not file a

written grievance within roughly two weeks after those oral discussions.

        A union member is responsible for knowing the contents of his CBA, Shapiro v. Cook

United, Inc., 762 F.2d 49, 51 (6th Cir. 1985), and Hollingsworth should have known that it was

impossible for the UAW to file a grievance on his behalf after the CBA’s deadline for doing so

passed sometime in April or May 2011. Hollingsworth argues that until he received the January

17, 2013, letter in which the UAW refused to file a grievance on his behalf, he “did not have any

reason to believe UAW was not pursuing upholding its duty of fair representation” because

“between April 2011 and January 2013, UAW continuously represented to [him] that it was

investigating Ford’s breaches.” Hollingsworth’s Supp. Br. at 4. However, the fact that the UAW

representatives told Hollingsworth that they were still “investigating” the matter after the

deadline for filing the grievance had passed should not have given him comfort; instead, it

should have indicated to him that the UAW either had no intention of filing a grievance or had

committed a serious error by missing the deadline.




                                                -7-
No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

       Hollingsworth also creatively argues that the initial oral discussion in the CBA’s

grievance procedure is “open-ended” and “does not have a deadline for its completion.”

Therefore, he contends, his request for a grievance never proceeded beyond the initial oral

discussion stage and the two-working-day deadline for instituting a second oral discussion was

never triggered. Hollingsworth’s Supp. Br. at 5-6. Such a construction of the CBA’s language

contravenes the natural meaning of the provisions and is untenable. Further, when arguing to the

district court on another issue, Hollingsworth agreed that “[u]nder any circumstances, the

deadline to file said written grievance passed no later than May 2011.” R.56, at PageID# 1282.

       Hollingsworth is moreover not entitled to equitable tolling of the statute of limitations

against either defendant. Equitable tolling due to fraudulent concealment applies when (1) the

defendant concealed the conduct that constitutes the cause of action, (2) the defendant’s

concealment prevented the plaintiff from discovering the cause of action within the limitations

period, and (3) the plaintiff exercised due diligence in trying to find out about the cause of

action. Egerer v. Woodland Realty, Inc., 556 F.3d 415, 422 (6th Cir. 2009). The pursuit of

internal union remedies—such as the filing of a grievance or the filing of an internal union

appeal—can also toll the limitations period if the internal union process can afford the plaintiff at

least some relief from a defendant. Robinson, 987 F.2d at 1242-43. In a hybrid § 301 claim,

while the causes of action against both defendants accrue simultaneously, the limitations period

does not necessarily begin to run against both defendants at the same time; rather, the limitations

period can be tolled against one defendant while it runs against the other. Id. at 1239.

       Hollingsworth is not entitled to tolling in his claim against Ford, because Ford did not

fraudulently conceal any information from Hollingsworth and because any misunderstanding

about the UAW’s internal processes cannot be attributed to Ford. Hollingsworth claims only that


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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

the UAW, and not Ford, concealed information from him, Hollingsworth’s Supp. Br. at 8–9;

thus, there is no basis for finding that the limitations period is tolled against Ford due to

fraudulent concealment. Additionally, any misunderstanding about whether Hollingsworth’s

attempt to pursue internal union remedies could have been fruitful after April or May 2011—that

is, whether the UAW could have successfully filed a grievance against Ford after April or May

2011—does not affect the running of the limitations period against Ford. The pursuit of a

grievance can toll the limitations period against the employer where, as the case is here, the

grievance process can provide the employee with complete relief from the employer. Robinson,

987 F.2d at 1243. However, the tolling against the employer ends when the grievance is closed.

Id. Thus, the tolling against Ford that occurred upon Hollingsworth’s initiation of the grievance

process by having oral discussions with the UAW representatives ended in April or May 2011

when the grievance became “settled, . . . final[,] and binding” after the deadline to further pursue

the grievance passed.

       This conclusion is supported by Robinson. The employee in Robinson appealed the

union’s decision not to request arbitration with the employer through the union’s internal appeals

process, rather than immediately filing a § 301 suit, because she believed, based on the union’s

representations, that the internal appeals process could result in her reinstatement. 987 F.2d at

1243. The union’s representations were incorrect, as the CBA provided that a union appeal

could not result in reinstatement. Id. We held that the pendency of the internal appeals did not

toll the statute of limitations in her claim against the employer because the internal appeal could

not afford her relief from the employer. Id. We also reasoned that a misunderstanding caused

solely by the union’s misrepresentations cannot be linked to the employer’s actions, statements,

or policies. Id. Consequently, the limitations period began to run against the employer when the


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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

union did not request arbitration within the timeline designated by the CBA. Id. Despite the

union’s misrepresentations, the employee should have known, based on the CBA, that the

grievance procedure had been exhausted at that time. Id. Like the employee in Robinson who

was deemed to know the terms of her CBA despite the union’s misrepresentations, the UAW’s

representations to Hollingsworth that it was continuing to investigate the deductions does not

remove his responsibility to know the terms of his CBA. Even though he was told by UAW

representatives that the investigation was ongoing, he should have known that the only private

dispute mechanism that could have provided him with relief from Ford was exhausted once the

CBA’s deadline to file a grievance passed in April or May 2011.

       Similarly, Hollingsworth is also not entitled to equitable tolling in his claim against the

UAW, because the UAW’s statements did not preclude him from knowing whether or not it was

still possible for it to file a grievance on his behalf and because he did not pursue any internal

union remedies that might have tolled the limitations period beyond April or May 2011.

Fraudulent concealment does not toll the limitations period against the UAW, because the UAW

did not conceal its conduct regarding Hollingsworth’s cause of action. For example, the UAW

representatives never told him that they had filed a grievance when in fact they had not or

hindered his access to the portions of the CBA that govern the grievance process. Instead,

Hollingsworth claims that they told him that they were still investigating. Hollingsworth had

access to the CBA and is deemed to know its contents; thus, the UAW representatives’

statements that they were investigating the matter did not preclude him from determining, based

on the terms of the CBA, whether or not it was still possible for the UAW to file a grievance

after April or May 2011. Additionally, waiting until January 2013 to send a letter asking the




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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

UAW to file a grievance about an incident that occurred in April 2011 is not acting with “due

diligence.”

        Lastly, Hollingsworth did not pursue any internal union remedies that might have tolled

the running of the limitations period against either the UAW or Ford after the UAW’s final

action occurred. The pursuit of an internal union appeal contesting the union’s actions in

handling a grievance can toll the statute of limitations, if the internal union appeal can afford the

employee at least some relief against one or both of the defendants. Robinson, 987 F.2d at 1242.

It is undisputed that Hollingsworth never filed an internal union appeal challenging the UAW’s

decision not to file a grievance on his behalf.1 Therefore, the pursuit of an internal union remedy

did not toll the limitations period beyond April or May 2011.

        In sum, the six-month statute of limitations on Hollingsworth’s claim began to run

sometime in April or May 2011 and elapsed long before his March 2013 suit was filed. We may

of course affirm a district court judgment on alternative legal grounds raised below, even though

the grounds were not relied upon by the district court. See, e.g., In re Comshare Inc. Sec. Litig.,

183 F.3d 542, 548 (6th Cir. 1999). The judgment of the district court is accordingly affirmed.




1
 Because it is undisputed that Hollingsworth never filed an internal union appeal, we do not address whether the
pursuit of such an appeal under the Ford-UAW CBA would have been sufficient to toll the statute of limitations
against either defendant.

                                                     -11-
No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

          CLAY, Circuit Judge, concurring. I concur with the result reached by the majority

opinion because Hollingsworth’s own arguments before the district court concede that UAW’s

failure to file a written grievance by May 2011 constituted its “final action.” I write separately to

note that in the absence of that concession, I would find that the CBA did not adequately put

Hollingsworth on notice that UAW’s failure to file a written grievance constituted its final

action.

          The appropriate question is whether Hollingsworth “should have reasonably discovered

that his claim had accrued by operation of the collective bargaining agreement.” Shapiro v.

Cook United, Inc., 762 F.2d 49, 51 (6th Cir. 1985). The majority opinion answers in the

affirmative: the CBA outlines a rigorous multi-step grievance process with stringent deadlines,

and UAW’s failure to file a written grievance by the applicable deadline operated as the union’s

final decision not to grieve Hollingsworth’s claim. Had Hollingsworth been an active employee,

I would agree. But by its terms, the CBA’s grievance procedures do not apply to persons in

Hollingsworth’s position—that is, former employees grieving Ford’s breach of a settlement

agreement. The “First Stage” of the grievance process, for example, states that an aggrieved

“employee” must “discuss the matter directly with his/her Supervisor or he may take it up with

his District Committeeperson and Supervisor.”          R.19-2, at PageID# 188–89 (beginning the

“Initial Oral Discussion” phase of the grievance process).           Hollingsworth was a former

employee; he had no “Supervisor” or “District Committeeperson” to whom to submit his

grievance.

          UAW—not unlike Hollingsworth—has made concessions supporting this interpretation

of the CBA. In its motion for summary judgment before the district court, UAW argued that

“[a]s a retiree, [Hollingsworth] was no longer entitled to the grievance process allotted to active


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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

members of the UAW under the Collective Bargaining Agreement and the UAW Bylaws.”

R.50, at PageID# 863. UAW’s brief before this Court likewise argues that “Hollingsworth is

also not aware of any rights under the [CBA] that provides [sic] him the opportunity to file a

grievance as a retiree.” Def.’s Br. at 10. And UAW’s counsel reiterated this point at oral

argument, stating “[t]here is no provision in the collective bargaining agreement that allows for a

retiree to file a grievance.” Although these statements were made in the context of UAW’s

argument that it had no duty to represent Hollingsworth because he is a retiree, the statements

nevertheless work against UAW by implying that the CBA had no grievance procedure available

to former employees. Thus, I disagree with the majority opinion’s reasoning and would find that

a person in Hollingsworth’s position would not “have reasonably discovered that his claim had

accrued by operation of the collective bargaining agreement.” Shapiro, 762 F.2d at 51.

        In the absence of a grievance process identified to persons in his position, Hollingsworth

reasonably relied on an alternative, ad hoc grievance procedure: first, he relayed his concerns to

the union representative who had negotiated his wrongful termination settlement; second, he

relied on that representative’s repeated assurances that the matter was being investigated. 2

Because the CBA did not set out any deadlines for resolving the grievances of former employees,

Hollingsworth’s reliance on the representative’s assurances were reasonable. And as a result of

his reasonable reliance, Hollingsworth would not have known UAW had taken its “final

action”—i.e., not filing a grievance on his behalf—until he received the letter from UAW stating

as much in January 2013. At the very least, the lack of clarity in the CBA would make the

reasonableness of Hollingsworth’s reliance on the UAW representative’s assurances an issue for

the factfinder.

2
  Any disputes of fact regarding what Hollingsworth requested during his initial discussion with the union
representative, or the assurances the union representative made in return, should be reserved for trial.

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No. 14-2630
Harry Hollingsworth v. Ford Motor Co., et al.

       Unfortunately, in a brief before the district court, Hollingsworth himself conceded that

the CBA’s strict deadlines operated to render UAW’s action “final” by May 2011. Indeed, in

that brief, Hollingsworth adopts an interpretation of the CBA identical to the one offered by the

majority opinion today. See R.56, at PageID# 1280–82. In light of that fact, I join the majority

opinion in affirming the district court’s judgment on the basis that Hollingsworth’s claim is

barred under § 301’s sixth-month statute of limitations.




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