Perry Marshall v. Local 701, International Brotherhood of Electrical Workers

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 8, 2010
Decided July 21, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐3662
PERRY MARSHALL,
Plaintiff‐Appellant,
v.
LOCAL 701, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 03 C 1302
Joan B. Gottschall, Judge.
O R D E R
Perry Marshall, a member of the International Brotherhood of Electrical Workers,
Local 701, sued that union and two union officials for violating his speech rights under the
Labor‐Management Reporting and Disclosure Act. He claimed that they retaliated against
him for speaking out about how union officials were violating union rules. The defendants
moved for summary judgment, and after striking various parts of the documents Marshall
filed in response, the district court granted their motions. Marshall appeals. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐3662 Page 2
I.
The International Brotherhood of Electrical Workers, Local 701, is a party to a
collective bargaining agreement with an Illinois employer association of electrical
contractors. That agreement contains referral provisions under which applicants for
employment are placed in jobs with signatory employers through Local 701’s referral hall.
Referrals by Local 701 are made according to an applicant’s position on an out‐of‐work list.
Normally, once an applicant accepts a referral, his name goes to the bottom of the list and
he must wait until those above him accept referrals before he is eligible for another one. An
exception to that rule is for a “short call,” which is when an applicant is hired and receives,
through no fault of his own, work for less than fourteen days. If an applicant receives a
short‐call assignment, he is restored to his original spot on the out‐of‐work list. And under
a rule adopted by Local 701, once an applicant accepts a referral, he must report to the job
unless there is an emergency or illness. If he does not, he loses his spot on the list.
Perry Marshall is a member of Local 701. From time to time, he spoke out against
decisions made by union officials that were inconsistent with various union rules and
agreements. Other union members often sought Marshall’s advice on union rules, and he
would speak on their behalf. Some union representatives did not welcome Marshall’s
outspokenness and berated him because of it.
In August 2002, Marshall was fifth on the out‐of‐work list and accepted a referral.
When he arrived at the job site, however, he told the project foreman that he could not work
that day because of personal reasons. That evening, Kenneth Lambert, a Local 701
representative in charge of referrals, phoned Marshall, informed him that the foreman had
complained of his absence, and indicated that he would lose his place on the list. After
Local 701 representatives visited the job site the following day, Art Ludwig, business
manager of Local 701, determined that Marshall had violated the referral rule by failing to
appear to work at the job site. Ludwig sent him a letter indicating that he was being
removed from his number five spot on the out‐of‐work list, although that decision would be
stayed until he exhausted his appeal rights.
Marshall appealed to the three‐member appeals committee established by the
collective bargaining agreement. (The appeals committee consists of one person appointed
by Local 701, one person appointed by the employer association, and one member of the
public selected by the previous two appointees). The committee met and requested
Marshall provide documentation of his personal situation that prompted him to leave the
job site. The committee indicated that Marshall could keep his spot on the list if he

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No. 08‐3662 Page 3
provided such proof but would lose it if he could not. He provided none, so the appeals
committee upheld his removal from the fifth position on the out‐of‐work list.
Marshall then contacted IBEW Sixth District vice‐president Lawrence Curley and
sought to bring an appeal under the IBEW constitution. Curley denied that request because,
under a longstanding interpretation of the IBEW constitution, appeals concerning a local
union’s actions under the job referral provisions of a collective bargaining agreement are
heard in accordance with the appeals procedures outlined in the agreement rather than the
ones in the IBEW constitution.
Over the next two weeks, Marshall filed eighteen charges against three Local 701
officers, alleging violations of various referral procedures. Pursuant to IBEW procedure,
Curley assigned a union representative to look into those allegations. The investigator
issued a report, concluding that the charges lacked merit. Based on that report, Curley
dismissed the charges. Nearly a year later, Marshall filed charges against Ludwig, which
Curley dismissed as untimely.
Marshall then sued Local 701, Ludwig, and Curley under the Labor‐Management
Reporting and Disclosure Act of 1959 (“LMRDA” or “Act”), for violating his speech rights
guaranteed by Title I of the Act, 29 U.S.C. §§ 411–15. He alleged that the defendants’ actions
relating to his removal from the out‐of‐work list were retaliation for his previous speaking
out against decisions made by union officials that were violative of union rules and
agreements.
The defendants moved for summary judgment. As part of his response, Marshall
submitted a lengthy affidavit, responses to the defendants’ statements of material fact, and
additional material facts. The defendants filed separate motions to strike numerous
portions of those submissions. The district court granted those motions to strike in part,
concluding that various segments of Marshall’s response documents did not comply with
Federal Rule of Civil Procedure 56(e) and Local Rule 56.1. The court then entered summary
judgment for the defendants. In particular, the district court held that Marshall had not
shown that Curley’s actions were caused by Marshall’s exercise of his LMRDA speech
rights. As for Local 701 and Ludwig, the court held that Marshall had acquiesced to their
argument that he could not recover against them because the independent, non‐union
appeals committee was the final decision maker regarding his removal from the out‐of‐
work list. Marshall appeals the district court’s decisions on the defendants’ motions to
strike and motions for summary judgment.
II.

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No. 08‐3662 Page 4
A. Motions to Strike
We review a district court’s ruling on a motion to strike an affidavit or statement of
facts for an abuse of discretion. Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 770 (7th
Cir. 2008); Winfrey v. City of Chicago, 259 F.3d 610, 618–19 (7th Cir. 2001). Marshall does not
present any argument in support of his bare assertion that the district court’s striking
portions of his responses to the defendants’ statements of material fact and his additional
material facts was improper, so the point is waived. Capitol Indem. Corp. v. Elston Self Serv.
Wholesale Groceries, Inc., 559 F.3d 616, 619 (7th Cir. 2009). And he concedes that the district
court correctly struck the portions of his affidavit it determined were hearsay, duplicative,
and legal arguments and conclusions. Marshall does contest, however, the court’s striking
the parts of his affidavit it concluded were not based on personal knowledge and were not
accompanied by supporting documents. Under Federal Rule of Civil Procedure 56(e)(1), an
affidavit must “be made on personal knowledge.” The district court struck twelve full
paragraphs and nine partial ones from Marshall’s affidavit for lack of personal knowledge.
On appeal, Marshall claims that he supplied foundational support for his statements by
referring to conversations he had and observations he made. But the stricken paragraphs
simply do not bear out that assertion, for none of them refers to such personal bases of
knowledge. We thus find no abuse of discretion in the district court’s striking those
portions of his affidavit.
Rule 56(e)(1) also provides that “[i]f a paper or part of a paper is referred to in an
affidavit, a sworn or certified copy must be attached to or served with the affidavit.” The
district court struck parts of four paragraphs of the affidavit because the documents
mentioned therein were not attached. Marshall admits he did not attach those materials to
his affidavit but says that was because the defendants had already submitted the same
documents in support of their motions for summary judgment.
Marshall did not comply with Rule 56(e)(1) when he failed to file the relevant
supporting documents. Even if he was concerned about duplicative filings, he did not
obtain the permission of the court to deviate from Rule 56(e)(1). Furthermore, the citations
he did include were not keyed to the defendants’ previous filings. Under these
circumstances, the district court did not abuse its discretion in striking the four parts of
Marshall’s affidavit for want of supporting documentation.
B. Motions for Summary Judgment

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No. 08‐3662 Page 5
1 From our review of the record, it is unclear whether Marshall’s LMRDA claim is for
mere infringement of his Title I speech rights based on § 102 of the Act, 29 U.S.C. § 412, or
for being subjected to union‐authorized “other discipline” as proscribed by § 609 of the Act,
29 U.S.C. § 529. See Finnegan, 456 U.S. at 439 & n.10. But as our discussion will show, this
issue is immaterial to the ultimate resolution of his appeal.
We review a district court’s grant of summary judgment de novo, viewing all facts in
the light most favorable to and drawing all reasonable inferences for the nonmoving party.
Goelzer v. Sheboygan County, 604 F.3d 987, 992 (7th Cir. 2010). Summary judgment is
appropriate “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 judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).
Title I of the LMRDA developed from legislation that was “aimed at enlarged
protection for members of unions paralleling certain rights guaranteed by the Federal
Constitution.” Finnegan v. Leu, 456 U.S. 431, 435 (1982). Section 101(a)(2) of the Act
provides that
[e]very member of any labor organization shall have the right to meet and
assemble freely with other members; and to express any views, arguments, or
opinions; and to express at meetings of the labor organization his views, upon
candidates in an election of the labor organization or upon any business
properly before the meeting, subject to the organization’s established and
reasonable rules pertaining to the conduct of meetings.
29 U.S.C. § 411(a)(2). In that subsection, Congress “restate[d] a principal First Amendment
value—the right to speak one’s mind without fear of reprisal.” United Steelworkers of Am. v.
Sadlowski, 457 U.S. 102, 111 (1982). “In providing such protection, Congress sought to
further the basic objective of the LMRDA: ‘ensuring that unions are democratically
governed and responsive to the will of their memberships.’” Sheet Metal Workers’ Int’l Ass’n
v. Lynn, 488 U.S. 347, 352 (1989) (quoting Finnegan, 456 U.S. at 436).
A union member may sue when his § 101(a)(2) free speech rights have been
infringed. 29 U.S.C. § 412. One type of infringement is when a member faces retaliation
because he exercised his speech rights. To succeed on such a claim, the member must
establish: (1) he engaged in protected expression, (2) he was subjected to an adverse action 1
reasonably likely to deter future expression, and (3) that action was caused by the protected

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No. 08‐3662 Page 6
2 As we recently made clear in Serafinn v. Local 722, International Brotherhood of
Teamsters, 597 F.3d 908, 914–15 (7th Cir. 2010), the causation the plaintiff must prove under
the LMRDA is the “but‐for” type.
expression. 2 See Lynn, 488 U.S. at 354; Casumpang v. Int’l Longshoremen’s & Warehousemen’s
Union, Local 142, 269 F.3d 1042, 1058 (9th Cir. 2001).
Regarding defendant Curley, assuming Marshall has established the first two
elements, he has failed to establish causation. Marshall contends that Curley conspired with
Local 701 to enforce the allegedly wrongful removal of his name from the out‐of‐work list.
Although not entirely clear, it appears Marshall is arguing that Curley’s refusal to accept his
appeal of the appeals committee’s decision and dismissal of his subsequent internal union
charges was because of his protected expression. Marshall’s causation argument is based
primarily on his affidavit statements (which particular ones, he does not say) relating to
Curley’s motivations for his actions that the district court struck. But our affirmance of the
district court’s ruling on the motions to strike scuttles that particular argument.
Marshall’s brief can also be read to assert that no other union members had their
appeals refused under the IBEW constitution or were denied the right to complain of
violations of union rules and agreements. Even if that proposition were suggestive of
causation, it is unsupported by the record: Marshall has not adduced proof of any similarly
situated members who were treated more favorably by Curley. Marshall also points to the
fact that in dismissing his charges, Curley relied solely on the report of the investigator
assigned to look into the charges. But it is not clear how that may be indicative of causation,
and Marshall does not say. Absent the development of any other argument or identification
of any evidence regarding the causation element, we conclude that summary judgment was
appropriate for Curley. See Roe‐Midgett v. CC Servs., Inc., 512 F.3d 865, 876 (7th Cir. 2008)
(failure to develop challenge to summary judgment order constitutes waiver).
Regarding defendants Local 701 and Ludwig, the district court granted their motion
for summary judgment. It determined Marshall had waived opposition to their argument
that the independent, non‐union appeals committee was the final decision maker
concerning his removal from the out‐of‐work list and, therefore, under Konen v. International
Brotherhood of Teamsters, 255 F.3d 402 (7th Cir. 2001), they are not liable under the LMRDA
because they were not responsible for his removal. The district court’s decision was based
on Wojtas v. Capital Guardian Trust Co., where we affirmed the lower court’s ruling that the
plaintiffs’ failure to respond to the defendant’s argument in support of a motion for
judgment on the pleadings constituted a waiver and justified granting the motion. 477 F.3d

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No. 08‐3662 Page 7
924, 926 (7th Cir. 2007) (citing Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir.
2001)).
Marshall’s lone argument against the district court’s finding of waiver was that it
was based on the incorrect disposition of the motions to strike. But the propriety of the
partial granting of those motions was not implicated by the district court’s waiver
determination: that conclusion was based on Marshall’s failure to respond in his brief to the
defendant’s arguments based on Konen. Whatever the case, Marshall’s argument founders
in light of our affirmance of the district court’s rulings on the motions to strike. Therefore,
we affirm the grant of summary judgment for Local 701 and Ludwig.
III.
In sum, the district court did not abuse its discretion by granting in part the
defendants’ motions to strike. We also conclude that summary judgment was appropriate
for the defendants. Accordingly, the judgment of the district court is A FFIRMED.

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