N O T RECOMMENDED FOR PUBLICATION

F ile Name: 06a0761n.06

F ile d : October 12, 2006

N o . 05-6242

U N I T E D STATES COURT OF APPEALS

F O R THE SIXTH CIRCUIT

R E B E C C A DEL VALLE, RICKEY REID, JEANNE

B L A N K E N S H IP

P l a i n t if f s - A p p e l l a n t s

v. O n Appeal from the United

S ta te s District Court for the

B E L L S O U T H TELECOMMUNICATIONS, INC., M id d le District of Tennessee

D e f e n d a n t - A p p e ll e e .

/

G U Y , SUTTON, and ALARCÓN * , Circuit Judges.

B efore:

P l a in t i f f s Rebecca Del Valle, Rickey Reid, and Jeanne

P E R CURIAM.

B la n k e n sh ip brought this action alleging that BellSouth Telecommunications, Inc., breached

th e terms of the settlement agreement resolving their claims of employment discrimination.

A p p e a lin g from the grant of summary judgment to BellSouth, plaintiffs argue that the district

c o u rt erred in finding that BellSouth had complied with the requirement to consider plaintiffs

f o r positions within one year and create new positions for plaintiffs within six weeks if

p lain tiff s were not rehired within one year, and that the agreement did not require BellSouth

to "bridge" the plaintiffs' seniority immediately upon rehire. We affirm for the reasons that f o llo w .

I.

T h e Communications Workers of America, three of its local unions, and several in d iv id u a ls filed a class action lawsuit against BellSouth, alleging that BellSouth engaged in gender and age discrimination by failing to grant promotions and transfers to current and f o rm e r BellSouth employees to the position of Electronic Technician (ET). After the motion f o r class certification was denied, putative class members, including the plaintiffs in this c a se , filed motions to intervene as individual plaintiffs. A global settlement of the litigation w a s reached during mediation and before the motions to intervene had been decided. The s e ttle m e n ts had a monetary component and, for some putative plaintiffs, a job reinstatement c o m p o n e n t .1 A n addendum to the global settlement identified 24 individual claimants to ET p o s itio n s -- in c l u d in g Del Valle, Reid, and Blankenship--and provided as follows: 2. F o r a period of one year from the date all conditions in P a ra g ra p h 5 of the Settlement Agreement are met, BellSouth will consider the a b o v e Claimants for ET vacancies within a 35 mile radius of the exchange listed for each Claimant. The Claimants will be deemed qualified pursuant to th e terms of the Collective Bargaining Agreement and will be deemed to have a valid job bid on file. Claimants will be selected for ET positions when v a c an c ie s occur, consistent with the provisions of the Collective Bargaining A g re e m e n t. Those employees who are no longer BellSouth employees will be c o n sid e re d to have the level of seniority they held on the date when they left B e llS o u th 's payroll.

3. C la im a n ts will be selected for ET positions as vacancies occur c o n s is te n t with the provisions of the Collective Bargaining Agreement. . . . 4. If it appears, for whatever reason, that any of the above C la im a n ts will not be offered an ET position in a vacancy by the end of the re f ere n c ed 1-year period, BellSouth will create sufficient ET positions s p e c if ic a lly for any such remaining Claimants as soon as it becomes apparent th a t there will be an insufficient number of vacancies. In no circumstances w ill the amount of time required to create such positions exceed 6 weeks f o llo w in g the expiration of the 1-year period. Such positions will be created o v e r and above the vacancies which BellSouth would have created absent this S ettle m e n t Agreement, specifically as an equitable remedy in settlement of this a c tio n . Placement in such ET positions will not be subject to the verification p ro c e s s set forth in Paragraph 3 of this exhibit. . . .

E a c h plaintiff was required to execute a separate settlement and release with an addendum th a t included the above-quoted language. There is no dispute that the conditions for d e te rm in in g the triggering date for the one-year ET job consideration period were met on J u n e 19, 2002. This meant that BellSouth had until June 19, 2003, to consider plaintiffs for E T positions as vacancies occurred. If not enough vacancies occurred by June 19, 2003, B e llS o u th was obligated to create ET positions for plaintiffs within six weeks, or by August 1 , 2003.

B la n k e n sh ip was rehired by BellSouth as an ET within the one-year period and began w o rk in g on October 14, 2002. Although De Valle and Reid also were eventually rehired into E T positions, neither returned to work during the one-year period or within the following sixw e e k period. Del Valle was formally offered an ET position in a letter dated November 25, 2 0 0 3 , and began work on January 5, 2004. Reid was formally offered an ET position on O c to b e r 29, 2003, and began work on December 8, 2003. Del Valle and Reid (but not B lank en sh ip ) claimed that BellSouth violated the settlement agreement by failing to rehire th e m either within the one-year period, or within six weeks thereafter. On appeal, Del Valle a n d Reid no longer argue that the settlement required that they be rehired within the one-year p e rio d .

J a m e s Glenister, the attorney for BellSouth who negotiated the settlement, testified th a t plaintiffs were considered for positions during the one-year time period. Glenister also te stif ie d that Del Valle was verbally offered an ET position through her attorney in June of 2 0 0 2 . John Quinn, counsel for the union and former counsel for Del Valle, corroborated G le n is te r's testimony: P rio r to the expiration of the time period in the settlement agreement in w h ic h BellSouth had agreed to consider Ms. Del Valle for an ET position, I w a s contacted by Jim Glenister of BellSouth. During this conversation, B e llS o u th offered Ms. Del Valle the option of being rehired and placed in the E T job as per the settlement, or a buy-out in recognition of the fact that she c o u ld be subject to layoff in the near future because of a downturn in the te le c o m m u n ic a tio n s industry which was not anticipated at the time of the s e t t le m e n t .

G le n is te r testified that Reid was also verbally offered an ET position through his attorney, J u lie Fosbinder. Glenister testified that he offered Fosbinder the option of negotiating a m o n e ta ry payment in lieu of Reid's rehiring and that they subsequently engaged in verbal n eg o tiatio n s on the issue. Reid denies receiving the offer.2 A ll three plaintiffs also claimed that BellSouth violated the settlement agreement by n o t crediting them immediately upon rehire with their previously accrued seniority. The C B A created seniority rights for bargaining unit members, including plaintiffs, and defined " se n io rity" as "the length of continuous BellSouth service . . . accrued from the date an e m p lo ye e actually begins work if the employee has been continuously engaged or the service a c cru e d in the case of an employee who has not been continuously engaged." Under the C B A , seniority governs in all "matters relating to assignment of hours and vacations, layoffs, re h irin g after layoffs, voluntary transfers, involuntary transfers and promotions." The CBA c re a te s the following "bridging" rights in Article 1.26B: B rid g in g . When a former employee is rehired by the Company, he/she shall b e given credit for the former service as follows: 1. W h e n the break in service has been less than 6 calendar months, the f o rm e r service shall be bridged immediately and the seniority date a d ju s te d accordingly.

2. W h e n the break in service has been 6 calendar months or more, the f o rm e r service shall be bridged after 3 continuous years of service, and th e seniority date adjusted accordingly.

W h e n rehired, Del Valle, Reid, and Blankenship each had a break in service of more than six m o n th s . BellSouth did not bridge their service dates, which made the date of rehire the new s e n io r ity date. Plaintiffs alleged that the settlement granted "bridging" rights in the last se n ten c e of Paragraph 2, which stated: "Those employees who are no longer BellSouth e m p lo ye e s will be considered to have the level of seniority they held on the date when they le f t BellSouth's payroll." D e l Valle and Reid lost their ET positions not long after rehire, allegedly as a result o f their low seniority. Del Valle was transferred to the position of circuit layout assigner on M a rc h 28, 2004, and laid off on June 26, 2004. Reid was transferred to a collections re p re se n ta tiv e position on April 1, 2004. Blankenship alleged that she was in danger of lo s in g her job due to her low seniority. There seems to be no dispute, however, that Blankenship received credit for her prior seniority during the pendency of this appeal under th e general "bridging" provisions of Article 1.26B of the CBA. As such, we address only th e claims of Del Valle and Reid.3 II.

W e review de novo the district court's grant of summary judgment. Smith v. A m e rite c h , 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when there a r e no issues of material fact in dispute and the moving party is entitled to judgment as a m a tte r of law. FED. R. CIV. P. 56(c). In deciding a motion for summary judgment, the court m u s t view the factual evidence and draw all reasonable inferences in favor of the nonmoving p a rty. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A. F a ilu r e to Rehire Plaintiffs before August 1, 2003 T h e district court concluded that there was no genuine issue of fact whether BellSouth c o m p lied with the terms of the settlement agreement and addendums because BellSouth o f f ere d Del Valle and Reid ET positions through their attorneys before August 1, 2003.

P la in tif f s rely on two categories of proof--correspondence after August 1 referencing job o f f ers and the absence of any written offers prior to August 1--to argue that a question of f a c t exists whether BellSouth actually offered ET positions to their attorneys before August 1 . The written correspondence consisted of four letters: (1 ) a letter from John Quinn to Del Valle's new attorney dated September 9, 2003, in w h ic h Quinn stated "At this time, Bell South has offered Ms. Del Valle the option of b e in g rehired and placed in an Electronic Technician job . . . ."; (2) a letter from Quinn to Del Valle's attorney dated October 10, 2003, stating: "It is my understanding that Bell South stands ready to fulfill the final component of the s e ttle m e n t with your client Ms. Del Valle - placing her in an electronic technician p o s itio n ." ; (3 ) a letter from Glenister to Del Valle on October 17, 2003, stating: "As you know . . . Bell South agreed to provide an offer of an ET position to Ms. Del Valle. . . .

B e c au s e [Quinn] was Ms. Del Valle's counsel of record in that litigation, I contacted Jo h n Quinn and offered an alternative proposal: that in lieu of such a job offer, B e llS o u th would pay Ms. Del Valle['s] potential salary . . . ."; and ( 4 ) a letter from Fosbinder to Glenister dated November 11, 2003, in which she states: " I am writing to confirm the voice mail that I left for you today. Mr. Reid wishes to b e placed in the ET position, rather than make another offer to settle the placement is s u e ." P la in tif f s contend that these letters cast doubt on Glenister's credibility because all of th e letters were written after the August 1 deadline. The letters, while not directly c o rro b o ra tin g Glenister's testimony that offers of employment were made prior to August 1, d o not contradict his statements either. To the contrary, the letters corroborate Glenister's s ta te m e n ts that timely offers for placement in ET positions were coupled with offers of b u yo u ts that initiated new negotiations with plaintiffs' attorneys concerning whether p la in tif f s would prefer a buyout or an ET position.

P la in tif f s also emphasize that with no documentary evidence of a timely offer, a f a ctf in d e r could question Glenister's credibility. At the summary judgment stage of litig a tio n , the moving party is entitled to summary judgment if the nonmoving party fails to s u p p o rt an essential element of the case. Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6 th Cir. 1999); Gaines v. Runyon, 107 F.3d 1171, 1174-75 (6th Cir. 1997). A respondent to a motion for summary judgment may not defeat the motion simply by arguing that the m o v a n t's evidence may not be credible. Rather, the respondent must present affirmative e v id e n c e supporting its case. See Fogerty v. MGM Group Holdings Corp., 379 F.3d 348, 3 5 3 -5 4 (6th Cir. 2004) (collecting cases), cert. denied, 543 U.S. 1120 (2005). The absence o f documentation corroborating the statements of Quinn and Glenister does not create a q u e stio n of fact whether offers were made through plaintiffs' attorneys before August 1, 2003.

B. T h e Addendum's Requirement that BellSouth Create a Position P la in tif f s also challenge the district court's further finding that the addendum did not req u ire BellSouth to either make an offer or rehire plaintiffs before August 1, 2003. In e la b o ra tin g on why BellSouth was entitled to summary judgment, the district court stated: M o r e o v e r, under the express terms of the Agreement, BellSouth was n o t required to either offer the position or to hire the plaintiffs within the six w e e k s following the expiration of the one-year period. The unambiguous la n g u a g e of the Agreement dictates only that "[i]n no circumstances will the a m o u n t of time required to create such positions exceed 6 weeks following the e x p ira tio n of the 1-year period." Placement is another step in the process, as e v id e n c ed by the language of the Agreement itself, which states that " [ p ]la c em e n t in such ET positions will not be subject to the verification p ro c e ss set forth in Paragraph 3 of this exhibit." Because there is no evidence i n the record to dispute Glenister's contention that BellSouth created ET p o sitio n s for Del Valle and Reid within the six-week period, no reasonable ju ro r could find that the defendant breached the terms of the Settlement A g re e m e n t in this regard.

P la in tif f s assert without amplification that the district court misinterpreted the clear a n d unambiguous language requiring that BellSouth create a position for the plaintiffs within six weeks of the one-year time limitation. At oral argument, plaintiffs attempted to equate th e obligation to create a position within the six-week period with a requirement that the p la in tif f s also be "placed" or formally rehired within that six-week period. While the s e ttle m e n t clearly contemplated that the plaintiffs would be rehired, nothing in these p ro v is io n s can fairly be read to require that the plaintiffs be back to work within the specified s i x -w e ek period. The district court did not err in finding that the plain meaning of the la n g u a g e did not obligate BellSouth to have offered or "placed" plaintiffs in ET positions p rio r to August 1, 2003.

C. S e n io r ity Levels F in a lly, Del Valle and Reid argue that the settlement granted them "bridging" rights to which they admittedly would not have been entitled under Article 1.26B of the CBA.

P la in tif f s argue that the last sentence of Paragraph 2 "trumps" the CBA and required B e llS o u th to rehire them at the same seniority level as when they separated from BellSouth m o re than six months earlier. BellSouth, on the other hand, maintains that Paragraph 2 only re q u ire d that the plaintiffs' prior seniority be used in considering them for ET vacancies d u rin g the one-year window. Upon rehire, BellSouth contends, the bridging of seniority w o u ld be governed by the CBA.

W e interpret agreements under § 301 of the National Labor Management Relations A c t of 1947, 29U.S.C. § 185 (1998). We apply traditional rules of contract interpretation, h o w e v e r, as long they do not conflict with federal labor policies. UAW v. Yard-Man, Inc., 7 1 6 F.2d 1476, 1479 (6th Cir. 1983).

M a n y of the basic principles of contractual interpretation are fully a p p ro p ria te for discerning the parties' intent in collective bargaining a g re e m e n ts . For example, the court should first look to the explicit language o f the collective bargaining agreement for clear manifestations of intent. . . .

T h e court should also interpret each provision in question as part of the in te g ra te d whole.

Id . at 1479 (internal citations omitted). Applying general principles of contract construction, th e district court determined that the last sentence of Paragraph 2, when read in the context o f the rest of the agreement, did not require BellSouth to bridge the plaintiffs' seniority rights u p o n rehire. The district court added in a footnote that: "Even if the language of the Settlement Agreement were ambiguous, extrinsic evidence revealing the intent of the drafters w o u ld support the court's interpretation." 4 A s the district court observed, Paragraph 2 governed the consideration of plaintiffs f o r ET vacancies consistent with the CBA during the one-year window. The final sentence p ro v id e d that plaintiffs who were no longer BellSouth employees--and thus would have had n o seniority when it came to selection consistent with the CBA--would "be considered to h a v e the level of seniority they held on the date when they left BellSouth's payroll." W h e t h e r or not the settlement agreement trumps the CBA is not dispositive in this case b e c a u s e the two are not in conflict. Because nothing in Paragraph 2 addressed the plaintiffs' rig h ts or BellSouth's obligations once plaintiffs were rehired, we agree with the district court th a t the settlement did not require BellSouth to "bridge" the plaintiffs' seniority immediately u p o n rehire.

P la in tif f s also argue that the district court erred by relying on extrinsic evidence of in te n t to alter, vary, or qualify the plain meaning of an unambiguous contract. This claim of e rro r is without merit. It is clear that the district court considered the statements of Quinn a n d Glenister in the context of an alternative holding and not as part of the reasoning in s u p p o rt of the conclusion that the plaintiffs' bridging rights were governed by the CBA.

A F F IR M E D .

* The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation. 1 Plaintiffs were not working for BellSouth at the time. 2 Fosbinder declined to comment on any conversations between Glenister and herself due to confidentiality restrictions in the settlement agreement. 3 The only remedy Blankenship sought was "appropriate seniority." BellSouth argues that since her seniority has now been bridged, Blankenship's appeal no longer presents a case or controversy. Plaintiffs do not directly respond, but offered no arguments concerning Blankenship's seniority claim in the brief on appeal or at oral argument. We view this as an abandonment of her claim on appeal. 4 Specifically, Quinn, the CWA attorney who negotiated on behalf of the plaintiffs, explained that: "The negotiated settlement did not call for immediate bridging of seniority and was never intended to do so. . . . Rather, because 24 plaintiffs were to be considered for ET jobs as part of the settlement agreement, the purpose of [the last] sentence was to determine in which order BellSouth would consider the 24 plaintiffs for ET positions as vacancies occurred during the first year after the settlement agreement was entered into." Glenister, BellSouth's attorney, likewise attested that: "The Settlement Agreement does not modify or amend Article 1.26 of the CBA and does not require that Plaintiff's seniority be bridged upon rehire."