Daughtry v. Army Fleet Support LLC et al

Filing 153

MEMORANDUM OPINION. Signed by Honorable Judge Myron H. Thompson on 2/15/13. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

RORY M. DAUGHTRY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ARMY FLEET SUPPORT, LLC,
et al.,
Defendants.

CIVIL ACTION NO.
1:11cv153-MHT
(WO)

MEMORANDUM OPINION
Plaintiff
charging
violation

Rory

failure
of

M.
to

federal

Daughtry

brought

accommodate

his

and

state

laws

this

action

disability

in

and

as

naming

defendants Army Fleet Support, LLC (his employer), L-3
Communications Corporation (Army Fleet’s parent company),
ACE

American

compensation
claims

Insurance

insurer),

administrator),

employee),
employees),

Michelle
and

the

Company

ESIS,
Tammie
Kelton

Inc.

(L-3’s
(ACE’s

Maddox
and

(an

Ruth

International

workers’

third-party
Army
Mann

Fleet
(ESIS

Association

of

Machinists and Aerospace Workers, District 75 (Daughtry’s

union).

Daughtry asserts claims under the Americans with

Disabilities Act of 1990 (ADA), as amended (42 U.S.C. §§
12111-12117), and the Racketeer Influenced and Corrupt
Organizations Act (RICO) (18 U.S.C. §§ 1961-1968), and he
asserts state-law claims of estoppel, conspiracy, breach
of contract, negligence and wantonness, outrage, and
invasion of privacy.

Jurisdiction is proper under 28

U.S.C. §§ 1331 (federal question) and 1367 (supplemental
jurisdiction) and 42 U.S.C. § 12117 (ADA).
The case is now before this court on the defendants’
motions

for

summary

judgment.

The

motions

will

be

granted.

I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and

2

the movant is entitled to judgment as a matter of law.”
Fed.

R.

Civ.

P.

56(a).

The

court

must

view

the

admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.

Matsushita Elec. Indus. Co. Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Under Rule 56, the party seeking summary judgment
must first inform the court of the basis for the motion,
at which point the burden then shifts to the non-moving
party to demonstrate why summary judgment would not be
proper.

Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d
1112,

1115-17

(11th

Cir.

1993)

shifting under Rule 56).

(discussing

burden-

The non-moving party must

affirmatively set forth specific facts showing a genuine
issue

for

trial

and

may

not

rest

allegations or denials in the pleadings.
56(e).

3

upon

the

mere

Fed. R. Civ. P.

II. BACKGROUND
Fort Rucker is a U.S. Army post in southeastern
Alabama.
private

There, the Army contracts with Army Fleet, a
company,

for

the

provision

of

aircraft

maintenance and logistical services. The company employs
almost 4,000 active employees, the vast majority of whom
are

union

members

and

aircraft

recently, Daughtry was both.

mechanics.

Until

After years of fixing Army

helicopters, Daughtry suffered an injury to his left
shoulder that required surgery and subsequent physical
therapy.

In his final week of therapy, he suffered a

second injury to the same shoulder, necessitating another
round of surgery.

Responding to complaints of regular

shoulder pain, his doctor ordered him to refrain from
lifting items over 20 to 25 pounds.

When Daughtry’s pain

continued, the doctor decreased the permitted amount to
15 pounds.
After Daughtry’s injury and corresponding lifting
restrictions, Army Fleet attempted to accommodate him;

4

rather than requiring him to continue carrying out all
his duties as an aircraft mechanic, he was assigned
solely

to “parts-turn-in,” one of many duties that are

required of aircraft mechanics.

When handling parts-

turn-in duties, the mechanic receives items of various
sizes and weights that have been turned in by other
employees and shelves them in designated areas.

Because

some of the items Daughtry had to shelve exceeded 15
pounds, he sometimes required assistance from coworkers.
In

general,

permanently

Army
at

the

Fleet

does

not

parts-turn-in

staff

area;

employees

the

work

is

handled on an assignment basis only by aircraft mechanics
who

are

primarily

responsible

for

other

duties,

including, most importantly, repairing aircrafts.

In

allowing Daughtry to forgo all his other duties, the
company made an exception to that general rule.
Daughtry worked in the parts-turn-in area exclusively
for a couple years.

Then, a realignment at Fort Rucker,

whereby Army Fleet had to move employees in response to

5

the government’s changing needs, ended that.

Daughtry

had been working during what the parties call “regular
work week.”

After Army Fleet employees were moved around

pursuant to the realignment, Daughtry was “bumped” to
“odd work week” in accordance with his seniority in the
union.

He had no objection to the move; it was, he

believed then and seems to believe now, in accordance
with the collective-bargaining agreement (the agreement
between Army Fleet and the union).

After Daughtry was

moved to the odd work week, however, Army Fleet concluded
that there was not a need during that time for him to
work in the parts-turn-in area.

All needed parts-turn-in

duties were handled by persons with greater seniority in
the union than Daughtry.

As there was no longer a need

for parts-turn-in work and as Daughtry was physically
restricted

from

handling

the

other

aspects

of

the

aircraft-mechanic position, the company decided that it
could not continue to employ him in that job.
temporarily

assigned

Daughtry

6

to

Army Fleet

light-duty

work

reviewing certain log books while the company searched
for a permanent position.
The company decided that, despite Daughtry’s physical
restrictions, he would be able to satisfy the needs of
the “aircraft monitor” position.
are

generally

speaking,

aircrafts

and

approach.

The job requires little physical exertion; it

assuring

tasked

Aircraft monitors,

that

with

only

standing

permitted

near

persons

also pays far less than Daughtry’s prior job as an
aircraft

mechanic.

Faced

with

the

option

of

an

indefinite layoff or less pay, Daughtry begrudgingly
accepted a position as an aircraft monitor.
In

accordance

with

the

collective-bargaining

agreement, Daughtry (represented by union counsel) filed
several grievances against the company regarding the new
position with less pay.

He contended that, under the

agreement (which has language relating to reasonable
accommodations for disabilities that closely tracks the
language

of

the

ADA),

Army

7

Fleet

was

required

to

accommodate his injuries by creating a permanent position
of parts-turn-in work that would pay the same amount as
aircraft-mechanic jobs.

In other words, he wanted to

continue the pre-realignment status quo, when he held the
aircraft-mechanic position but was not required to carry
out any of the job’s duties besides parts-turn-in.

The

grievances proceeded to arbitration, and the arbitrator
ruled against Daughtry.

Additionally, Daughtry filed a

complaint with the U.S. Department of Labor’s Office of
Federal Contract Compliance Programs, which also ended in
an unfavorable decision.
case

relating

to,

Lastly, he filed a state-court

among

other

things,

workers’

compensation benefits.
Throughout those proceedings, Daughtry continued to
work as an aircraft monitor.

However, that ended when he

injured his previously uninjured right shoulder.

As with

the earlier injuries to his left shoulder, he again
needed surgery.

Following the surgery, his treating

physician concluded that he could no longer perform the

8

essential functions of either the aircraft-mechanic or
aircraft-monitor

jobs

without

assistance.

agreed he could not do either job.
taking

powerful

pain

Daughtry

Moreover, he began

medications

that,

under

the

company’s preexisting substance-abuse policies, precluded
him from working.

He was placed on administrative leave

pursuant to the collective-bargaining agreement.

As of

today, he remains eligible for rehire if a position
becomes available that he can carry out with his physical
restrictions and medication needs.
Daughtry brought this lawsuit charging that Army
Fleet unlawfully failed to accommodate him by failing to
create a permanent parts-turn-in job.
even

with

his

current

physical

He claims that,

restrictions,

he

can

satisfy parts-turn-in duties if he has assistance with
the

heavier

items;

he

also

charges

that

all

the

defendants are liable for conspiring to force him into a
job

that

pays

less

than

the

salary

to

which

he

is

entitled and that his union is liable for failing to

9

represent

adequately

his

interests

throughout

the

preceding events.

III. DISCUSSION
A.
Under the ADA, private employers may not discriminate
against

an

otherwise

qualified

worker

disability.

42 U.S.C. § 12112(a).

under

ADA

the

includes

“not

because

of

a

“Discrimination”
making

reasonable

accommodations to the known physical ... limitations of
an otherwise qualified individual with a disability who
is an ... employee.”

42 U.S.C. § 12112(b)(5)(A).

In

other words, if an “otherwise qualified” employee with a
disability requires reasonable accommodations to perform
his

job

duties,

the

employer

has

an

affirmative

obligation to make those accommodations.
“A reasonable accommodation ... is one that would
enable an employee with a disability to enjoy an equal
opportunity for benefits and privileges of employment as

10

are enjoyed by employees without disabilities.”

Howell

v. Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D.
Ala. 1994) (Thompson, J.).

However, an accommodation is

not “reasonable” if it requires the employer to eliminate
an essential function of a job.

Lucas v. W.W. Grainger,

Inc., 257 F.3d 1249, 1259 (11th Cir. 2001).
reasonable

accommodation

“does

not

Similarly,

require

that

an

employer create a ... new permanent position” for an
employee who cannot carry out the essential functions of
existing

jobs.

Howell,

860

F.

Supp.

at

1492.

By

contrast, “if an employer has a ... vacant permanent
position for which the disabled employee is [able to
carry

out

the

essential

functions],

it

would

be

a

reasonable accommodation to reassign the employee to that
position,” and, therefore, such reassignment would be
mandated by the ADA.

Id.

But, if no such position

exists, the ADA does not require that the employer create
one.

Id.
Here, the defendants have presented evidence showing

that Army Fleet satisfied its duties under the ADA.
11

The

evidence shows that, after Daughtry’s first injury, he
was unable to carry out the bulk of his duties as an
aircraft mechanic; he could not satisfy the core function
of the job, servicing aircrafts.

He was able to satisfy

only one of the job’s multiple requirements--shelving
items,

an

ancillary

task--and

assistance from coworkers.
these facts.
Daughtry

even

that,

only

with

Daughtry does not contest

The ADA does not require Army Fleet to keep

employed

as

an

aircraft

mechanic

when

no

possible accommodation would allow him to carry out the
essential functions of the job.

See Lucas, 257 F.3d at

1259.
Moreover, the evidence shows that, unless Army Fleet
violates the union agreement by pushing aside employees
with more seniority than Daughtry, the company has no
need for additional work in parts-turn-in, the sole job
function Daughtry can perform to a limited extent.

The

ADA

new

does

not

require

that

Army

Fleet

create

a

position for which the company has no need, nor does the
ADA require that Army Fleet push aside current employees
12

to create a need.

Howell, 860 F. Supp. at 1492; see also

Hoskins v. Sheriff’s Dep’t, 227 F.3d 719, 730 (6th Cir.
2000) (holding that, on the facts of the case, turning a
temporary “relief position” into a permanent job was not
a reasonable accommodation); Milton v. Scrivner, 53 F.3d
1118, 1125 (10th Cir. 1995) (holding that reasonable
accommodation did not require the employer to violate the
collective-bargaining agreement).
The existence of a reasonable accommodation is an
element of the plaintiff’s case under the ADA, and, if
the plaintiff does not put forth evidence showing a
reasonable accommodation, the defendants are entitled to
judgment in their favor.

See Willis v. Conopco, Inc.,

108 F.3d 282, 286 (11th Cir. 1997).

The defendants have

presented evidence that no such reasonable accommodation
exists for Daughtry.

Now, the burden shifts to him to

put forth evidence showing why that is not the case.
In response, Daughtry has submitted to the court over
1,500 pages of evidence and over 100 pages of briefing.
The briefing ranges in its various parts from convoluted
13

at best to entirely incoherent at worst.
examined

the

submission

for

arguments

The court has
as

to

the

possibility of reasonable accommodation, and the court
understands Daughtry to make the following contentions.
First,

Daughtry

contends

that

another

aircraft

mechanic who was injured on the job, John Smith, was
permitted to work in parts-turn-in exclusively (or at
least nearly exclusively) far longer than was Daughtry.
The implication is that Air Fleet’s protestations that it
could not similarly employ Daughtry in parts-turn-in are
pretextual.

See Howell, 860 F. Supp. at 1493 (fact that

employees other than plaintiff were afforded temporary
light-duty work for far longer period than plaintiff
created genuine dispute as to whether employer reasonably
accommodated plaintiff with shorter period).

However,

Daughtry’s purported evidence relating to John Smith
falls

short

for

one

critical

reason:

entirely ignores the issue of seniority.

the

argument

The evidence

shows that Smith was more senior in the union than
Daughtry, and thus, after the realignment, the more14

senior Smith was permitted to keep working the regular
work week while the more-junior Daughtry was bumped to
See Smith Dep. (Doc. No. 125-19) at 18:2-

odd work week.
3.

Army Fleet could not continue accommodating Daughtry

because, after the realignment and Daughtry’s move to odd
work week, all needed parts-turn-in work was handled by
persons with more seniority than Daughtry.

The evidence

about Smith does nothing to rebut that fact, and, as
such,

it

does

not

create

a

genuine

dispute

as

to

reasonable accommodations.
Second,

Daughtry

alleges

that

there

were

irregularities in Army Fleet’s practices in determining
whether the company could continue to accommodate him
with parts-turn-in work after the realignment.

Daughtry

puts forth some vague evidence that the company’s human
resources department has a policy of “coordinating with
the field manager to determine if there is productive
work

available

Maddox

Dep.

for

(Doc.

an
No.

employee
125-1)

with
at

restrictions.”

36:10-15.

Other

testimony provides that the human resources department,
15

before

informing

Daughtry

that

the

company

could

no

longer accommodate him as it had pre-realignment, first
discussed possible alternative accommodations with Rick
Davis, Daughtry’s field manager while he was in partsturn-in,

id. at 138:10-139:15, and two other specified

individuals, Ed Brown and Darlene Whalen, whose roles in
the company are not clear, id. at 163:7-165:1.
Daughtry’s essential contention seems to be that
these discussions were inadequate and Army Fleet somehow
violated

its

own

policies

alternative accommodations.

regarding

searching

for

Even if that were the case,

however, it, standing alone, would not create a dispute
of

material

fact.

The

existence

of

a

reasonable

accommodation is an element of the plaintiff’s case.
Willis, 108 F.3d at 286.

See

To establish that element, it

is not enough to show merely that Army Fleet potentially
committed a procedural irregularity in its search for
accommodations; rather, Daughtry must show that there was
an

actual,

not

just

hypothetical,

accommodation that could have been taken.
16

reasonable

See Milton, 53

F.3d at 1125 (“Plaintiffs’ final suggestion, that they be
allowed

to

transfer

unreasonable....

[The

to

another

plaintiff]

has

job,
not

is

also

provided

a

description of any other jobs that would accommodate his
disability.

He merely speculates that he could probably

transfer to something else.”).
Daughtry’s third argument is that Tammie Maddox, who
works in human resources for Army Fleet, “confessed at
her deposition that Rick Davis,” Daughtry’s field manager
for some time, “stated [that] he was able to accommodate
... Daughtry as a mechanic assigned to motor pool.”
Pl.’s Br. (Doc. No. 115) at 18.

If Davis, an Army Fleet

field manager, in fact stated that he could accommodate
Daughtry,

that

material fact.

would

obviously

create

a

dispute

of

To show this purported fact, Daughtry

cited to, but did not quote, a portion of Maddox’s
deposition.

The

relevant

part

of

the

deposition

transcript containing Maddox’s “confession” states the
following:

17

“Q: Did [Davis] tell you that he was
willing to accommodate [Daughtry] in
motor pool?
“A: I don’t remember.
“Q: ... Did you have any communications
with Rick Davis as to whether he could
work
at
parts
turn-in,
or
other
positions other than parts turn-in, as
a mechanic at Lowe Field prior to
informing Mr. Daughtry of the Hobson’s
choice in October of 2008?
“A: What’s a Hobson’s choice?
“Q: That’s a fair statement, Tamm[ie].
I’ve heard of attorneys call[] it that,
and I’m not real sure what that is. I
won’t even try to explain it to you....
Did Mr. Davis state to you that he could
use him in motor pool?
“A: I don’t remember.
“Q: If Mr. Davis says that, do you agree
or disagree with that?
“A: If Mr. Davis said it, I don’t argue
with it.”
Maddox Dep. (Doc. No. 125-1) at 137:7-140:9.

The obvious

disparity between Maddox’s “confession” (which Daughtry
claims happened) and Maddox’s actual statements that she
does

not

remember

(which

18

the

transcript

actually

reflects) requires no elaboration.

It is enough to say,

this evidence is insufficient to defeat summary judgment.
The

final

argument

the

court

understands

from

Daughtry’s briefing is that, despite the defendants’
statements

to

the

contrary,

the

company,

in

fact,

replaced him with new hires after he was booted from his
position as an aircraft mechanic assigned to part-turn-in
duty.

See Pl.’s Br. (Doc. No. 115) at 37.

In other

words, Daughtry was replaced with people who, given that
they were recently hired, were unquestionably less senior
than Daughtry, and, therefore, the company’s claimed
adherence to the seniority system is mere pretext.
support,

Daughtry

cites

to

the

deposition

of

For
James

Cotter, a union representative, which, according to the
brief, is exhibit 22 in the record.

See id.

appears to be a handwritten letter.
Daughtry intended to cite to exhibit 20.

Exhibit 22

It seems that
The relevant

part of the deposition transcript states:
“Q: Is it your understanding that actual
new hires were put in the position of
parts turn-in?
19

“A: I do not know that.
“Q: If I were to tell you that was the
case, would that surprise you?
“A: No.”
Cotter Dep. (Doc. No. 125-20) at 109:5-10.

Again, the

court thinks it unnecessary to elaborate on the disparity
between

the

contentions

in

Daughtry’s

brief

and

the

reality of the evidence.
The remainder of Daughtry’s arguments is either too
confusing to understand or, although comprehensible, is
not supported by citations to any evidence.

If there is

actual evidence of a reasonable accommodation in the
record, Daughtry has failed to bring it to the court’s
attention, and the court will not scour Daughtry’s 1,500page-plus evidentiary submission, unguided by Daughtry
himself, for possible supporting evidence.

See Fed. R.

Civ. P. 56(c)(1)(A) (“A party asserting that a fact ...
is genuinely disputed must support the assertion by ...
citing to particular parts of materials in the record.”)
(emphasis added) and (c)(3) (“The court need consider
20

only the cited materials”) (emphasis added).
the

court

conjure

a

dispute

of

material

Nor will
fact

from

counsel’s imagination when the cited portions of the
record are contradictory.
evidence

of

As Daughtry failed to show

reasonable

accommodation,

essential to his ADA claim,

an

element

defendants are entitled to

summary judgment on that claim.

See Celotex Corp., 477

U.S. at 323.

B.
Daughtry’s complaint, in shotgun fashion, asserts a
bevy of other causes of action all arising out of the
same events already discussed.1
First, Daughtry asserts a breach-of-contract claim,
contending

that

the

collective-bargaining

agreement

1. See Black’s Law Dictionary 1191 (8th ed. 2004)
(defining “shotgun pleading” as “A pleading that
encompasses a wide range of contentions, usu. supported
by vague factual allegations.”); Horn v. Bd. of Educ.,
2010 WL 4340786 (M.D. Ala. Oct. 8, 2010) (Thompson, J.)
(discussing shotgun pleading and its “unacceptable
consequences,” including “[w]asting scarce judicial
resources”).
21

between Army Fleet and the union required the company to
provide reasonable accommodations for disabled employees
and that the company breached that obligation.

For the

same reasons already discussed, Daughtry has not put
forth evidence tending to show that Army Fleet failed to
accommodate

him.

If

the

agreement

requires

accommodations in excess of the ADA, Daughtry has made no
attempt to show as much.
Second, Daughtry asserts a right to relief pursuant
to the Alabama law doctrine of equitable estoppel.
doctrine

provides

that,

if

a

person

That

“knowingly

communicate[d] something in a misleading way, either by
words, conduct, or silence, with the intention that the
communication will be acted on [by another person]” and
that

other

person

relied

upon

the

misleading

communication to his detriment, the person who made the
communication

may

inconsistently

with

be

estopped

the

from

misleading

proceeding

communication.

Lambert v. Mail Handlers Ben. Plan, 682 So. 2d 61, 64
(Ala. 1996).

Here, Daughtry contends that the defendants
22

communicated to him that his position as an aircraft
mechanic

assigned

to

parts-turn-in

duty

would

be

permanent and that they are therefore estopped from now
arguing

otherwise.

However,

supporting that contention.

he

cites

no

evidence

Moreover, the great weight

of the record that the court has examined belies the
allegation.
Third,
statute.

Daughtry’s

next

claim

is

under

the

RICO

Under RICO, “it is illegal ‘for any person ...

associated

with

any

enterprise

...

to

conduct

or

participate, directly or indirectly, in the conduct of
such

enterprise’s

affairs

racketeering activity.’”

through

a

pattern

of

Williams v. Mohawk Indus.,

Inc., 465 F.3d 1277, 1282 (11th Cir. 2006) (quoting 18
U.S.C. § 1962(c)).

“[I]n order to establish a federal

civil RICO violation ..., the plaintiff[] must satisfy
four elements of proof: (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.”

Id.

(quotation marks and citations omitted).

A “pattern of

racketeering

two

activity”

means
23

at

least

or

more

criminal acts listed in the RICO statute.
(citing 18 U.S.C. § 1961(1)).

See id.

Fourth, Daughtry makes a

similar claim, invoking the Alabama law doctrine of civil
conspiracy.

A civil conspiracy is an agreement among

multiple persons to commit one or more unlawful acts that
would by themselves give rise to civil liability.

See

Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d
101, 126 (Ala. 2003).
Daughtry has failed to identify evidence supporting
either RICO or civil conspiracy.

He has not shown any

unlawful acts committed by the defendants (or, for that
matter, any of the claims’ other essential elements).
While Daughtry’s briefing makes vague allegations of
“extortion,” this court has seen nothing supporting that.
The record seems to show that all defendants attempted to
accommodate

Daughtry

in

good

faith.

Daughtry’s

discontent with the result does not transform an attempt
at accommodation into an illegal act of extortion.
same

is

true

compensation

of

Daughtry’s

lawsuit.

state-court

Daughtry
24

makes

The

workers’
nebulous

allegations about improper conduct that occurred in that
lawsuit.

As far as this court can tell, the evidence

shows that Daughtry was offered a settlement that he
accepted and that there was nothing unusual, improper, or
unlawful about the deal.

Unless he can show actual

evidence otherwise (which he has not), no amount of
colorful

language

in

his

briefing

turns

an

ordinary

settlement transaction into an act of extortion.
Fifth, Daughtry seeks to hold the defendants liable
for committing the Alabama law tort of outrage.

To

succeed on that claim, Daughtry must show “(1) that the
defendant[s]

either

intended

to

inflict

emotional

distress, or knew or should have known that emotional
distress was likely to result from [their] conduct; (2)
that

the

defendant[s’]

conduct

was

extreme

and

outrageous; and (3) that the defendant[s’] conduct caused
emotional distress so severe that no reasonable person
could be expected to endure it.”

Jackson v. Alabama

Power Co., 630 So. 2d 439, 440 (Ala. 1993).

Here,

Daughtry claims that the defendants’ “barbaric means of
25

refusing to accommodate” him make out an outrage claim.
Pl.’s

Supplemental

Br.

(Doc.

No.

126)

at

35.

Unsurprisingly, he points to no evidence of barbarism in
the record.

Likewise, no identified evidence supports

Daughtry’s two negligence and wantonness claims, one of
which is directed at the union and the other at the other
defendants.
of

the

The court is unable to discern what conduct

defendants

Daughtry

charges

was

negligent

or

is

invasion

of

wanton.
Sixth,

the

next

privacy.

As

the

contentions,

he

seems

separate incidents.
that

the

defendants

asserted
court
to

claim

understands

premise

this

Daughtry’s

claim

on

two

The first incident is, he contends,
violated

his

privacy

by

making

certain unspecified statements in the course of judicial
proceedings.
the

course

But, under Alabama law, statements made in
of

judicial

proceedings

are

absolutely

privileged, and, therefore, that aspect of his invasionof-privacy claim fails as a matter of law.

See Drees v.

Turner, 45 So. 3d 350, 358 (Ala. Civ. App. 2010) (citing
26

O’Barr v. Feist, 296 So. 2d 152 (Ala. 1974)).

The next

incident is, he alleges, that the defendants, in the
course of attempting to accommodate him, required him to
have a physical examination by a doctor and that that
examination violated his privacy.

The court sees no

aspect of this physical examination that should rise to
liability.
Finally,

nearing

the

end

of

Daughtry’s

many

overlapping claims, his final charge is that the union
inadequately represented his interests throughout the
relevant events.

Under federal law, labor unions owe a

duty of fair representation to their members.
v. Sipes, 386 U.S. 171, 177 (1967).

See

Vaca

Notwithstanding that

duty, “a union is allowed considerable latitude in its
representation

of

employees.”

Harris

v.

Schwerman

Trucking Co., 668 F.2d 1204, 1206 (11th Cir. 1982).
“Nothing less than a demonstration that the union acted
with reckless disregard for the employee’s rights or was
grossly

deficient

in

its

27

conduct

will

suffice

to

establish” a claim that the union violated its duty of
fair representation.

Id. at 1206-07.

Daughtry argues that the union violated the duty in
several respects.
that,

while

the

The first violation he contends is
union

was

litigating

his

case

in

arbitration, it failed to argue that Army Fleet had
violated the ADA and, instead, argued only that the
company violated the collective-bargaining agreement’s
provisions relating to accommodations.

That tactical

decision, however, seems entirely reasonable.

The plain

language of the collective-bargaining agreement provides
that,

“The

jurisdiction

of

the

arbitrator

and

his

decision shall be confined to a determination of the
facts

and

the

interpretation

or

application

of

the

specific provision of this Agreement at issue....

The

arbitrator

any

shall

have

no

authority

to

interpret

federal or state law.”

Collective-Bargaining Agreement

(Doc. No. 105-2) at 22.

Even if competent attorneys may

differ as to whether the union’s tactics were the best
choice, it is obvious that the union’s conduct was not
28

“grossly

deficient”

Daughtry’s rights.

or

in

“reckless

disregard”

for

Harris, 668 F.2d at 1206-07.

Next, Daughtry complains that, after the arbitrator
issued an unfavorable decision, the union failed to sue
to vacate the result.

That choice of the union also

seems entirely reasonable.

The collective-bargaining

agreement itself provides that the arbitrator’s decision
“shall be final and binding on the Company, the Union and
the

employee

or

employees

involved.”

Bargaining Agreement (Doc. No. 105-2) at 22.

CollectiveMoreover,

even if the union had sued, the suit almost surely would
have failed, as arbitration decisions are subject to
highly limited judicial review.

See Smith v. Babcock &

Wilcox Co., 726 F.2d 1562, 1564 (11th Cir. 1984) (“When
a collective bargaining agreement provides a mechanism
for grievance settlement through binding arbitration, a
decision by the arbitrator may not normally be reviewed
in the federal courts.”).

The union’s decision not to

sue cannot “conceivably amount to a breach of the Union’s
duty of fair representation.”
29

Rasheed v. International

Paper Co., 826 F. Supp. 1377, 1388 (S.D. Ala. 1993)
(Vollmer, J.); see also Shores v. Peabody Coal Co., 831
F.2d 1382 (7th Cir. 1987) (“This Circuit has firmly
established the rule, however, that a union's failure to
contest an arbitration award in court cannot be a breach
of the duty of fair representation.”).
Lastly, Daughtry charges that the union wrongfully
brought

to

grievances

arbitration
he

some,

initiated.

but

The

not

union

all,

of

replies

the
that

Daughtry’s multiple grievances were duplicative and that
it made a wise strategic decision in opting to arbitrate
some grievances, but not the redundant ones.

Based on

the evidence before the court, it seems undisputed that
“the union met [its] obligation of fair representation by
pursuing [the] grievance[s] to a point where further
action would have been fruitless.

The union is not under

an

a

absolute

duty

to

pursue

grievance

through

arbitration,” especially a grievance duplicative of one
already proceeding through arbitration.

30

Stanley v. Gen.

Foods Corp., 508 F.2d 274, 275 (5th Cir. 1975).2 Daughtry
has not shown facts sufficient to support a breach of
duty in this regard.
Daughtry has raised several other complaints about
his union’s performance, but they are all either too
unclear to assess or they lack any citation to evidence
in the record.
***
Accordingly,

the

defendants’

motions

for

summary

judgment will be granted, with judgment entered in favor
of the defendants and against Daughtry.
An appropriate judgment will be entered.
DONE, this the 15th day of February, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

2. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
31