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Gilliam v. Resolute FP U.S. Inc.

United States District Court, D. South Carolina, Rock Hill Division

September 21, 2017

BONN GILLIAM, Plaintiff,


          Margaret B. Seymour Senior United States District Judge

         On January 13, 2017, Plaintiff Bonn Gilliam (“Plaintiff”) brought this action against his employers, Resolute FP U.S. Inc. and Resolute Forest Products, Inc. (“Resolute”) (together “Defendants”), alleging racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended (First Cause of Action); retaliation (Second Cause of Action); and negligent supervision (Third Cause of Action). On February 9, 2017, Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), asserting that Plaintiff's claims are barred by res judicata. On February 23, 2017, Plaintiff filed a response in opposition to the motion to dismiss, to which Defendants filed a reply on March 1, 2017.

         In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Shiva V. Hodges for pretrial handling. On April 19, 2017, the Magistrate Judge filed a Report and Recommendation in which she recommended that Defendants' motion to dismiss be granted. Plaintiff filed objections to the Report on May 2, 2017, to which Defendants filed a reply on May 10, 2017.


         Plaintiff is an African-American employee of Resolute, a subsidiary of Resolute FP U.S. Inc. Plaintiff began his employment in the shipping department on or about September 12, 1977. Approximately two years later, Plaintiff was transferred to the maintenance department, where he has worked for approximately thirty-seven years. Plaintiff currently is employed as a maintenance master craftsman.

         In early 2013, Plaintiff was promoted to a team leader position based on his seniority and his record of good performance within the company. On or about January 3, 2014, Plaintiff was required to work beyond his normal shift to oversee maintenance operations on the third shift. Plaintiff was charged with making repairs to the facility's wood piping system. According to Plaintiff, he and his work crew performed the job well, but, unbeknownst to Plaintiff, the weather created continuing problems with the pulp transportation system that were beyond Plaintiff's knowledge and control. On or about January 4, 2014, Plaintiff was called into a meeting with several supervisory and upper level members of management and was subjected to “harassing and accusatory questions regarding his job performance on January 3, 2014.” ECF No. 1, ¶ 13. During this meeting, Plaintiff maintained that he had properly performed his job, and any system failures regarding the wood piping system were weather related and not related to his job performance. However, on or about January 13, 2014, Plaintiff was demoted from his team leader position on the grounds that he failed to perform his job.

         Plaintiff alleges that his demotion was unwarranted and that the accusations regarding his job performance were untrue. He further contends that Defendants' superintendent had a pattern and practice of allowing Caucasian employees to complete training opportunities and Performance Improvement Plans before demoting them from team leader positions. On May 5, 2014, Plaintiff filed a grievance through Defendants' human resources department and company union in compliance with the terms of the parties' Collective Bargaining Agreement (“CBA”) and Plaintiff's contractual relationship with Defendants. Plaintiff alleges that Defendants placed his grievance into an indefinite abeyance, and thus deprived Plaintiff of the opportunity to obtain relief under the terms of the CBA. On June 23, 2015, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on the events leading up to and allegedly causing his demotion.

         Plaintiff further alleges that in December 2015, he requested to change his schedule from rotating shift to day shift. Plaintiff contends that Defendants failed to follow the customary practice of implementing schedule changes on January 1; instead, Plaintiff's request was not effective until the week of January 11, 2016. Plaintiff further alleges that Defendants' customary placement practice allowed an employee to utilize seniority status to be placed in the machine shop versus the wood yard; however, Plaintiff was placed in the wood yard. Plaintiff asserts that the machine shop was staffed with four Caucasians who exercised their seniority to be placed in the machine shop, and that he has seniority over three of the four Caucasians. Plaintiff alleges that Defendants' acts were racially motivated and were also a retaliation for having filed a charge with the EEOC.

         On March 14, 2016, Plaintiff filed a lawsuit against Resolute in the Court of Common Pleas for York County, South Carolina. Based on nearly identical allegations, Plaintiff contended that Resolute had

obstructed and inhibited Plaintiff's ability to participate in the Grievance process. Specifically, [Resolute] again breached Plaintiff's employment contract by placing Plaintiff's Grievance into an indefinite abeyance outside of the terms of the parties' Collective Bargaining Agreement. By doing such, [Resolute] has deprived Plaintiff of the opportunity to get relief pursuant to the terms of the parties' Collective Bargaining Agreement.

See Gilliam v. Resolute Forest Prods., C/A No. 0:16-1384-JMC (“Gilliam I”), ECF No. 1-1, ¶ 17.

         In Gilliam I, Plaintiff asserted causes of action for breach of contract and breach of contract with fraudulent intent. In the meantime, Plaintiff filed a second charge of race discrimination with the EEOC on April 18, 2016. On May 2, 2016, Resolute removed Gilliam I to federal court on the grounds of both diversity jurisdiction (Plaintiff is a citizen of South Carolina, Resolute is a business incorporated in Delaware and having its principal place of business in Montreal, Canada) and federal question jurisdiction (breach of a CBA may be brought in a district court pursuant to the Labor Management Relations Act, 28 U.S.C. § 185(a)).

         Plaintiff received a Notice of Right to Sue from the EEOC on October 26, 2016. Plaintiff did not amend his complaint in Gilliam I to include the allegations asserted in his second charge of discrimination. Instead, on December 14, 2016, the parties filed a joint stipulation of dismissal of Gilliam I with prejudice. As noted hereinabove, the within action (hereinafter “Gilliam II”) was filed in this court on January 13, 2017.

         II. ...

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