Brittain v. American Federation of Government Employees, AFL-CIO

Filing 53

ORDER granting 44 Defendant American Federation of Government Employees, AFL-CIO's Motion for Summary Judgment. The Clerk shall terminate all deadlines and close the case file. Signed by Judge Timothy J. Corrigan on 6/7/2021. (TLN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FREDERICK L. BRITTAIN,
Plaintiff,

v.

Case No. 3:20-cv-92-TJC-PDB

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO,
Defendant.
ORDER
The Court must decide whether a long-serving labor union officer was
afforded adequate due process in an internal union disciplinary proceeding.
This case comes before the Court on Defendant American Federation of
Government Employees, AFL-CIO’s (“AFGE”) motion for summary judgment
(Doc. 44), to which Plaintiff Frederick L. Brittain responded (Doc. 47). 1 AFGE
also filed a reply (Doc. 50). The motion for summary judgment pertains
exclusively to Count I of Brittain’s complaint (Doc. 1), as the Court’s January
13, 2021 Order (Doc. 42) dismissed Counts II, III, and IV. Count I alleges that
AFGE violated the Labor-Management Reporting and Disclosure Act

Brittain’s response to AFGE’s motion for summary judgment is referred
to as “Response” throughout this Order.
1

(“LMRDA”), 29 U.S.C. § 411(a)(5), by disciplining Brittain without providing
him due process.
I.

FACTS
A.

AFGE Local 1976, AFGE Local 2779, and Brittain

AFGE is a national labor organization that represents federal
government and private sector employees. Doc. 1 ¶ 8. AFGE’s National
Constitution governs union affairs. Doc. 44-7 ¶ 8. The National Constitution
and AFGE policies distinguish between bargaining unit employees and
management officials. For example, while bargaining unit employees are
entitled to representation, a supervisor “may not . . . receive personal
representation in administrative or judicial proceedings from a local, district,
council or AFGE” under AFGE’s Policy on Supervisors and Management
Officials Who Retain Membership in AFGE Locals. Doc. 44-4 at 45–47, 76.
AFGE has local chapters around the United States. Locals’ constitutions
or bylaws set out the terms and conditions of local membership. See Docs. 44-6
at 59; 44-4 at 34; see also Docs. 44-2 at 12–15. AFGE Local 1976 represents
bargaining unit employees at North Florida/South Georgia Veterans Health
System in Lake City, Florida (“Lake City VA”). See Doc. 44-2 at 11; February
14, 2014 Letter from National President Cox, Doc. 44-6 at 81 (“Local 1976 only
has authority to represent bargaining unit employees at Lake City and
Tallahassee, Florida, and Valdosta and Waycross, Georgia.”). Frederick L.
2

Brittain was a member of Local 1976 from 1996 to 2017 and president of the
local from 2001 until 2016. See Doc. 44-2 at 7. At all relevant times, Brittain
was a federal employee employed by Lake City VA. Docs. 1 ¶ 17; 44-2 at 5.
AFGE Local 2779 represents bargaining unit employees at Lake City
VA’s sister facility, Florida/South Georgia Veterans Health System in
Gainesville, Florida (“Gainesville VA”). See Doc. 44-2 at 23. Muriel Newman, a
Gainesville VA bargaining unit employee, was president of Local 2779 at all
relevant times. Docs. 44-3 at 110; 44-2 at 30. Newman had a hostile relationship
with Brittain, and filed multiple internal AFGE complaints against Brittain
during his tenure as President of Local 1976. See Docs. 44-2 at 32, 52, 156–57.
Glenda Skinner, a laboratory supervisor at Gainesville VA, reported to
and worked under the same management official as Newman. See id. at 26, 38.
Although Gainesville VA falls under the jurisdiction of AFGE Local 2779,
Skinner paid dues to AFGE Local 1976 until approximately August 29, 2016, at
which time she was informed that she was not eligible to be a Local 1976
member. See id. at 46; 44-6 at 91.
At an unspecified time before April 18, 2016, Brittain agreed to represent
Skinner in an Equal Employment Opportunity Complaint (“EEO Complaint”)
against the Department of Veterans Affairs. Doc. 44-2 at 25, 27–28, 148, 150.
Brittain’s representation of Skinner was not his first representation of a
management official. During his tenure as president, Brittain, in his personal
3

capacity, represented approximately six management officials in a variety
disputes (e.g., EEO complaints and pay disputes) against the Department of
Veteran Affairs. See id. at 17–18. In contrast to Skinner’s EEO Complaint, in
which she alleged Newman was creating a hostile working environment, see id.
at 31–32, 50–51, 150–53, most of Brittain’s representations of management
officials did not involve allegations against bargaining unit employees, see id.
at 18. Furthermore, it is unclear whether the national AFGE leadership knew
of Brittain’s past representations of management officials. Id. at 19–22.
On June 17, 2016, in his capacity as Skinner’s representative, Brittain
emailed the Director of the Florida/South Georgia VA System (the “VA
Director”), and other members of hospital management, reporting that Denys
Krol, a Gainesville VA bargaining unit employee member of AFGE Local 2779,
was improperly accessing a Gainesville VA laboratory. See Doc. 44-2 at 42–43,
158–60; see also id. at 24. In the email, Brittain also requested that
management investigate the matter and revoke Krol’s access to the laboratory.
Doc. 44-2 at 160. Brittain sent a separate email on June 17, 2016 to the VA
Director and other management officials to notify them of Newman’s use of
explicit language on government computers. See Doc. 44-2 at 157. 2

Brittain filed a related internal union complaint against Newman on
August 15, 2016. See Doc. 44-3 at 103. Local 2779 did not find probable cause
to charge Newman. See id. at 109.
2

4

Following these events, Brittain received a letter from AFGE National
President J. David Cox dated July 22, 2016, specifying that Brittain’s
representation of Skinner, receipt of dues from Skinner, and sending of the June
17 emails to management constituted chargeable offenses under the National
Constitution. 3 See Doc. 44-2 at 45–48, 161–62. The letter also suspended
Brittain from the office of President of AFGE Local 1976. Doc. 44-2 at 106, 161.
In September 2016, Cox suspended Brittain as a delegate to an AFGE national
convention. Docs. 1 ¶ 21; 44-6 at 15. Later, Brittain received a notice of hearing
dated December 22, 2016 from Cox, stating that “an independent trial
committee will conduct a hearing . . . on January 10th” at a specified time and
place (the “Hearing”). Doc. 44-2 at 54, 163. Following receipt of the notice,
Brittain selected Bryan R. Hardison to represent him in the disciplinary
proceeding. Docs. 44-2 at 55; 44-6 at 108.
Cox represented to Brittain that settlement of the charges was an option,
if, at a minimum, Brittain resigned from being President of Local 1976. See Doc.
44-3 at 100. Brittain responded that he would not resign. See id. at 102.

Cox had previously pursued unrelated charges against Brittain. See
Doc. 47-1 ¶19.
3

5

B.

Brittain’s Disciplinary Proceedings 4

The National Constitution sets forth multiple processes for bringing and
processing charges against union members. See, e.g., National Constitution,
art. XXIII; see also Docs. 44-7 ¶ 9; 44-4 at 21. In Brittain’s case, Cox preferred
the charges against Brittain and appointed a three-member Trial Committee to
determine Brittain’s guilt. Docs. 44-2 at 98–99, 101; 44-4 at 71–72; 44-7 ¶ 12.
The Trial Committee consisted of Jeanette McElhaney, Lino Penas, and Horace
Cooper. Docs. 44-2 at 59; 44-6 ¶¶ 3–4. The Trial Committee first learned of the
charges against Brittain on January 5, 2017. Doc. 44-6 ¶ 8. Brittain did not
know or have any interactions with Penas or Cooper before the Hearing. Docs.
44-2 at 59; 44-6 ¶ 9. However, Brittain was familiar with McElhaney because
he had filed a protest to invalidate an election in which McElhaney was a
candidate. See infra Part I.C.; Doc. 44-2 at 59. Brittain and McElhaney also
attended the same conventions, conferences, and national union events. Doc.
44-4 at 5. Brittain believes that McElhaney was biased against him due to the
election protest, see infra at 8, and requested that McElhaney be removed from
the Trial Committee. See Doc. 1 ¶ 23. This request was denied. Id.

Neither party filed a transcript of the Hearing. Apparently, there is an
audio tape of the Hearing, but that was not provided either. While the lack of a
transcript here is not outcome determinative, failing to provide a transcript
impedes the Court’s review, and, in some cases, may raise due process concerns.
4

6

At the Hearing, the Trial Committee admitted evidence and permitted
witnesses as long as there were no party objections, see Doc. 44-4 at 56, and as
long as the proposed witnesses were not management officials—AFGE practice
was to exclude management officials from disciplinary proceedings, Docs. 44-6
¶¶ 18–19; 44-4 at 54. When a party raised objections, the Trial Committee
listened to the views of the parties, and then proceeded to decide whether to
admit the evidence at issue. See Docs. 44-4 at 54, 56; 44-2 at 82–84.
AFGE objected to almost all the witnesses and evidence Brittain tried to
introduce. Doc. 44-2 at 66. The Trial Committee allowed Brittain and Brittain’s
witness Robert Van Slyke, Newman’s predecessor as president of Local 2779, to
testify. Docs. 44-2 at 66, 75; 44-6 ¶¶ 14, 17; see also Doc. 47-1 ¶ 23. However,
the committee did not allow Mary Devlin, former secretary-treasurer of Local
2779, or Skinner to testify on Brittain’s behalf. Doc. 47-1 ¶¶ 23, 29–30. The
parties dispute whether Brittain attempted to call Cox as a witness. See Docs.
47-1 ¶ 26; 44-6 ¶ 16; 44-4 at 43–44, 53–54.
AFGE called Newman, Mary Pararo, and Bill Kudrie as witnesses, and
Brittain’s representative Hardison cross-examined Pararo. Doc. 44-6 ¶ 13. In
terms of documentary evidence, the Trial Committee admitted twelve joint
exhibits and two of Brittain’s individual exhibits, see Docs. 44-2 at 72–73, 78,
80–82; 44-4 at 39–40; 44-6 ¶ 15, and excluded a police report and witness

7

statements that provide details on a 2015 altercation between Newman and
Skinner, see Docs. 44-2 at 82; 44-4 at 53; 44-3 at 115, 120–26.
A letter from Cox dated February 10, 2017 notified Brittain that the Trial
Committee found him guilty as charged. Docs. 44-4 at 73; 44-2 at 75–76. The
letter also stated that, as a penalty, Brittain was removed from his position as
President of Local 1976, precluded from being appointed to any office within
AFGE for 3.5 years, precluded from running for any office or being a delegate
within AFGE for 3.5 years, and precluded from membership within AFGE for
3.5 years. Doc. 44-4 at 73. A report of the Trial Committee’s decision (the “Trial
Committee Report”) was attached to the February 10th letter. Id. at 74–75.
In March 2017, Brittain filed an appeal, to which fifteen exhibits were
attached, with the AFGE National Executive Council. Docs. 44-3 at 23–24; 442 at 76–77; 44-4 at 73; 44-7 ¶¶ 17–18. The National Executive Council voted
unanimously to uphold the Trial Committee’s findings, but reduced Brittain’s
bar from membership from 3.5 years to 1.5 years. Docs. 44-7 ¶ 19; 44-2 at 77. In
2018, Brittain filed a further appeal to the AFGE National Convention, but his
appeal was denied. Docs. 44-2 at 77; 1 ¶ 29.
C.

Brittain’s Election Protest

Brittain mailed a signed protest of the district secretary-treasurer
election in which McElhaney was a candidate to Gary Harding, an election
committee member; Brittain also hand-delivered a copy of the protest to AFGE
8

National Vice President Everett Kelly. See Docs. 44-2 at 60–62, 103; 44-5 ¶ 6.
No one notified McElhaney of Brittain’s protest in advance of the Hearing. See
Doc. 44-5 ¶ 12.
The parties present conflicting evidence with respect to the year Brittain
filed the protest and the ramifications of the protest. Brittain testified that he
filed the protest in 2014 or 2015, Doc. 44-2 at 60–61, while Harding’s declaration
provides that Brittain filed the election protest in 2012, Doc. 44-5 ¶ 8. In
addition, while Brittain testified that AFGE did not permit McElhaney to take
office for three years as a result of his protest, Doc. 44-2 at 63–64, 103,
McElhaney testified that she was not aware of any election protest and that she
assumed the district secretary-treasurer office without delay, see Doc. 44-4 at
7–8, 35–36, 58–59. In agreement with McElhaney, Harding’s declaration states
that McElhaney took office immediately because McElhaney’s opponent
withdrew from the race, negating any need to redo the election. See Doc. 44-5
at 2, 7.
II.

DISCUSSION 5
Count I alleges that AFGE suspended Brittain’s membership, prohibited

Brittain from seeking office, and removed Brittain from office without affording

Under Rule 56 of the Federal Rules of Civil Procedure, a motion for
summary judgment should be granted “‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Estate of Todashev by Shibly v. United States, 815 F. App’x
5

9

him due process in violation of § 411(a)(5). Docs. 1 at ¶¶ 26, 31–42. Section
411(a)(5) states that:
No member of any labor organization may be fined, suspended,
expelled, or otherwise disciplined except for nonpayment of dues by
such organization or by any officer thereof unless such member has
been (A) served with written specific charges; (B) given a reasonable
time to prepare his defense; (C) afforded a full and fair hearing.
This provision does not protect union officers from suspension or removal as a
union officer. See Dolan v. Transport Workers Union of Am., 746 F.2d 733, 740
(11th Cir. 1984) (“According to its terms, § 411(a)(5) does not . . . guarantee any
protections as far as removal of a union member from his post as an officer or
employee of the union.”) (citing Finnegan v. Leu, 456 U.S. 431 (1982)); AdamsLundy v. Ass’n of Prof’l Flight Attendants, 792 F.2d 1368, 1372 (5th Cir. 1986)
(“Where the injury allegedly suffered by union officers is done to them in their
status as officers, not as individual members, there can be no cause of action
under section[] 411 . . . because there has been no infringement of the basic
rights of membership protected by those sections.”). However, § 411(a)(5)
applies with respect to disciplinary actions barring or suspending members

446, 450 (11th Cir. 2020) (citing Fed. R. Civ. P. 56(a)). Once the movant
“demonstrate[s] the absence of a genuine issue of material fact, the nonmoving
party must come forward with specific facts showing a genuine issue for trial.”
Johnson v. Unique Vacations, Inc., 498 F. App’x 892, 895 (11th Cir.
2012). Courts view the evidence in the light most favorable to the non-moving
party. Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir.
2012).
10

from running for office. Sullivan v. Laborers’ Int’l Union of N.A., 707 F.2d 347,
350 (8th Cir. 1983) (holding that “while a union officer facing suspension from
his position as an officer is not entitled to procedural due process under section
411(a)(5), a union member barred from seeking union office is entitled to the
procedural due process protections of section 411(a)(5)”). The Eighth Circuit has
reasoned that “by preventing one of its members from seeking union office, a
union affects the individual as a union member, and thereby triggers the
procedural protections contained in section 411(a)(5).” Id.; see also Kent v. New
York State Public Employees Fed’n, ALF-CIO, No. 1:17-CV-0268 (GTS/CFH),
2020 WL 1531020, at *10 (N.D.N.Y. Mar. 31, 2020) (“The Hearing Board's
report clearly shows that the discipline imposed on [the plaintiffs] . . . affected
their membership rights by barring them from running for any union office . . .
. The Court must therefore assess whether [the plaintiffs] . . . were afforded
sufficient process under the LMRDA.”) (internal citation omitted). Thus, there
is no cognizable action for Brittain’s removal from office, and the Court shall
limit its analysis to Brittain’s membership suspension and bar from official
candidacy. 6

However, if the Court had undertaken a § 411(a)(5) analysis for
Brittain’s removal from office, the result would be the same as to his other
claims.
6

11

A.

Justiciability of Count I

AFGE argues that Count I is moot because Brittain’s membership
suspension has expired. (Doc. 44 at 10). The Court disagrees.
“Article III, § 2, of the Constitution limits the jurisdiction of federal
courts to ‘Cases’ and ‘Controversies,’ which restricts the authority of federal
courts to resolving the legal rights of litigants in actual controversies.” Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013) (internal quotation marks
omitted). “A case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (internal quotation marks
omitted). “Thus, a case becomes moot when the reviewing court can no longer
offer any effective relief to the claimant.” Gagliardi v. TJCV Land Trust, 889
F.3d 728, 733 (11th Cir. 2018); see also Chafin v. Chafin, 568 U.S. 165, 172
(2013) (“As long as the parties have a concrete interest, however small, in the
outcome of the litigation, the case is not moot.”) (internal quotation marks
omitted).
Brittain alleges that he has “suffered damages which are of a continuing
nature.” (Doc. 1 at ¶ 49). Brittain elaborated in his response to AFGE’s motion
to dismiss that “suspension from both his office and from membership in AFGE
caused him substantial damages to income and more importantly to his
12

reputation within the AFGE organization where he had always been a wellknown and respected member for nearly 20 years.” Doc. 31 at 3–4. Furthermore,
the Third Circuit has explained that “expulsion from * * * (a union) or
suspension for a period of time * * * may well be, and often is in fact, a more
severe sanction than a monetary fine or a relatively brief confinement imposed
by a court in a criminal proceedings.” Falcone v. Dantinne, 420 F.2d 1157, 1164
(3d Cir. 1969). For instance, “many unions have initiated retirement and
medical plans[, and] expulsion from the union would result in the loss of these
valuable benefits. Thus, to the typical union member the maintenance of his
membership is of paramount importance.” Id. at 1163. In sum, suspension from
union membership can cause injury, and the expiration of the suspension term
alone may not render such injury moot. Here, the Court can provide various
forms of relief, such as clearing the conviction from Brittain’s record and
ensuring that Brittain can rejoin the union in good standing. Count I is not
moot.
B.

Due Process Under the LMRDA

“Under § 411(a)(5), a union member must receive the following
procedural safeguards before discipline is imposed: (1) written specific charges;
(2) a reasonable time to prepare a defense; and (3) a full and fair hearing.”

13

Batorsky v. Sheedy, 13 F. Supp. 2d 287, 293 (N.D.N.Y. 1998). 7 However, “[t]he
LMRDA does not allow the recovery of damages for a union's violation of a
technical internal rule that does not adversely affect a member's due process
rights.” Wellman v. Int'l Union of Operating Eng'rs, 812 F.2d 1204, 1206 (9th
Cir. 1987); see also United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 387
(2d. Cir. 2001).
1. Brittain received written specific charges.
“[P]resentation of (a) the nature of the charges and (b) a statement of the
factual basis underlying the charges is sufficient to meet the requirement for a
specific written charge.” Kent, 2020 WL 1531020 at *11; see also Int'l Bhd. of
Boilermakers v. Hardeman, 401 U.S. 233, 245 (1971). A charging letter should
“contain a description of the nature of the offense, the circumstances
surrounding the alleged infraction, and as nearly as may reasonably be
ascertained, the time and place of the occurrence.” Batorsky, 13 F. Supp. 2d at
293 (internal quotation marks omitted); see also Keenan v. Int’l Ass’n of
Machinists & Aerospace Workers, 937 F. Supp. 2d 93, 113 (D. Me. 2013) (“[T]he
amount of factual detail required of a charging document necessarily fluctuates
based on the particulars of the case.”); Caterina v. Int’l Bhd. of Painters & Allied

Throughout this Order, the Court cites non-precedential, yet persuasive
opinions as the Eleventh Circuit has not had the opportunity to extensively
develop case law on § 411(a)(5).
7

14

Trades, Local Union No. 30, No. CV477-233, 1978 WL 1671, at *12 (S.D. Ga.
Jul. 21, 1978) (“‘[T]he requirement of ‘specific charges’ is not satisfied by
reference in the [charging letter] to a section of a union constitution without
any statement of the factual basis of the charge.’”) (quoting Magelssen v. Local
Union No. 518, Operative Plasterers' & Cement Masons' Int’l Ass’n, 233 F.
Supp. 459 (W.D. Mo. 1964)). Nevertheless, unions need not provide a highly
technical statement of facts in charging letters. Johnson v. Nat’l Ass’n of Letter
Carriers Branch 1100, 182 F.3d 1071, 1074 (9th Cir. 1999). “[A]n informal
written statement of facts suffices.” Id. at 1074–75 (internal citations omitted).
“‘[T]he goal is to give the accused member notice of the conduct that he . . . is
expected to defend.’” Chao v. Local 1357, Int’l Broth. of Elec. Workers, AFLCIO, 232 F. Supp. 2d 1119, 1128–29 (D. Hawai’i 2002) (quoting Johnson, 182
F.3d at 1074 n.5) (alterations in original); id. (“‘[T]he charge does not need to
allege facts sufficient to support the charge or the particular elements of the
charge.’”) (alterations in original).
Here, National President Cox mailed Brittain a charging letter that
describes Brittain’s offenses as representing Skinner in her EEO Complaint,
which “create[d] a conflict of interest with respect to [his] duties as a local
president and representative of a bargaining unit,” “lodg[ing] accusations about
a bargaining unit employee with management in an email dated . . . June 17,
2016,” and causing or allowing Local 1976 to accept dues from Skinner although
15

Skinner was employed by a facility that fell outside of Local 1976’s jurisdiction.
Doc. 47-2. The letter explains that, based on this conduct, AFGE was charging
Brittain under several sections of Article XXIII of the National Constitution:
2(d) (making known the business of any affiliate of the Federation
to management officials of any agency or other persons not entitled
to such knowledge), (e) (engaging in conduct unbecoming of a union
member), (f) (engaging in gross neglect of duty or conduct
constituting misfeasance or malfeasance in office as an officer or
representative of a local), and (g) (incompetence, negligence, or
insubordination in the performance of official duties by officers or
representatives of a local or council or failure or refusal to perform
duties validly assigned).
Id.
Brittain advances that the letter is contradictory because it states that
his representation of Skinner was a conflict of interest while also indicating
that he “may have [had a] right to represent [her] . . . in her . . . EEO case.” Id.;
see also Doc. 47-1 ¶ 8 (“[AFGE]’s advisory letter to me of July 22, 2016 (the
‘advisory letter’) from David Cox, former national president of Defendant,
advised me that I in fact had the right to represent Glenda Skinner, the very
conduct I was being accused of.”); Doc. 47 at 13–14. While the letter could have
been clearer, it is not contradictory. An individual exercising a private right to
engage in activity that is incompatible with their professional responsibilities
or duties is a classic example of a conflict of interest. See Conflict of Interest,
MERRIAM-WEBSTER DICTIONARY ONLINE (defining “conflict of interest” as “a
conflict between the private interests and the official responsibilities of a person
16

in a position of trust.”); Conflict of Interest, BLACK’S LAW DICTIONARY 363 (10th
ed. 2014) (defining “conflict of interest” as “a real or seeming in compatibility
between one’s private interests and one’s public or fiduciary duties.”). Thus, the
charging letter’s statement that Brittain may have had a right to represent
Skinner does not detract from or obfuscate the charge that Brittain’s
representation of Skinner was incompatible with his duties as President of
Local 1976.
Brittain also contends that the letter does not make clear “what act or
acts constituted ‘conduct unbecoming’, ‘gross negligence’, misfeasance,
malfeasance, incompetence, insubordination or what duty he had failed or
refused to perform.” Doc. 47 at 5–6, 14. While it may be preferable that charging
letters separately link each chargeable offense to specific factual allegations,
such a high level of specificity is not required under the LMRDA. See Chao, 232
F. Supp. 2d at 1128–29 (“‘[T]he charge does not need to allege facts sufficient to
support the charge or the particular elements of the charge.’”) (quoting Johnson,
182 F.3d at 1074 n.5) (alterations in original). Charging letters must put the
charged individual on notice of the conduct they are expected to defend in their
disciplinary proceeding. Brittain’s charging letter specifies three instances of
alleged misconduct with sufficient particularity. See Kent, 2020 WL 1531020
at *11–*13 (concluding that a charging letter that did not separate out charges
to specific individuals satisfied the LMRDA’s written specific charges
17

requirement). Therefore, Brittain received written specific charges in
accordance with § 411(a)(5).
2. Brittain received reasonable notice of the hearing, thus providing
him adequate time to prepare a defense.
“Section 411(a)(5)(B) does not specify the amount of time that is necessary
to comply with the ‘adequate time’ requirement. Courts generally decide
whether a requirement such as this has been satisfied ‘with due regard to the
practicalities and peculiarities of the case.’” Martin v. Local 556, Transp.
Workers Union of Am., AFL-CIO, 2014 WL 4358480, at *8 (N.D. Tex. Sept. 3,
2014). In other words, “[t]he question whether a union member has been given
timely or adequate notice is fact-specific.” Meader v. District Lodge No. 4, Indus.
Union of Marine & Shipbuilding Workers of Am., AFL-CIO, 786 F. Supp. 95,
104–05 (D. Me. 1992).
Article XXIII of the National Constitution stipulates that a disciplinary
hearing “shall not be held less than two weeks after the mailing of the notice [of
hearing].” Doc. 44-7 at 3, 36. Brittain’s notice of hearing is dated December 22,
2016 and the hearing was set for and took place on January 10, 2017. Doc. 443 at 65–66. It is important to consider that Brittain may have not been able to
prepare on Christmas Eve, Christmas, New Year’s Eve, and New Year’s Day
when many businesses were closed. Discounting those four days leaves fifteen
days between the mailing of the notice and the Hearing. Thus, AFGE provided

18

Brittain notice in accordance with the National Constitution. The record also
supports that AFGE provided Brittain reasonable time to prepare a defense in
compliance with Section 411(a)(5)(B). In making this determination, the Court
considers that Brittain did not request additional time to prepare his defense
and fully participated in the Hearing with his representative.
3. AFGE provided Brittain a full and fair hearing.
“The ‘full and fair hearing’ requirement of the LMRDA incorporates the
‘traditional concepts of due process.’ Not all of the due process protections
available in the federal courts apply to union disciplinary proceedings. Such
proceedings need only adhere to the ‘basic principles of due process.’”
Teamsters, 247 F.3d at 385 (internal citations omitted); see also Dolan, 746 F.2d
at 740 (“The procedural protections that must be accorded under § 411(a)(5)
before a union member may be disciplined flow from the specifics of the
provisions, and not from the panopoly[sic] of protections that the federal
Constitution gives criminal defendants.”) (internal citation omitted). “These
include the right to produce evidence, the opportunity to confront [witnesses]
and rebut evidence, and an unbiased tribunal.” Kent, 2020 WL 1531020 at *14;
see also Rowan v. Laborers Int’l Union of N.A., No. 10-CV-3855(DRH)(ETB),
2012 WL 3203046, at *6 (E.D.N.Y Aug. 3, 2012). Nonetheless, “the burden of
proof is low; the charging party must provide only ‘some evidence’ at the
disciplinary hearing to support the charges.” Piacente v. Int’l Union of
19

Bricklayers & Allied Craftworkers, No. 11 Civ. 1458(ER), 2015 WL 5730095, at
*10 (S.D.N.Y. Sept. 30, 2015) (citation omitted); see also Daniels v. National
Alliance of Postal & Fed. Employees, No. Civ.A. 83-1444, 1985 WL 6408, at *4
(D.D.C. Oct. 4, 1985) (“[C]onviction by a union on charges unsupported by any
evidence constitutes a violation of the due process guarantees of section
411(a)(5) . . . . No requirement exists, however, that a conviction be supported
by ‘substantial evidence.’”) (citing Hardeman, 401 U.S. at 246). The Court
commences the full and fair hearing analysis with the most contentious issue:
the impartiality of the Trial Committee.
a.
McElhaney was not biased and did not taint the
Trial Committee.
Even where a conviction is based on “some evidence,” courts may examine
bias in determining the fairness of disciplinary proceedings. 8 See Conway v.
Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers, 209 F. Supp. 2d 731,
747 (N.D. OH. 2002) (“[T]he ‘some evidence’ standard does not preclude courts
from examining a disciplinary hearing for bias or prejudice or considering ‘a
challenge to the essential fairness of and motivation for the proceedings.’”); see
“The failure to raise the issue of bias on the part of the tribunal at a
union disciplinary hearing . . . does not preclude the issue from being raised in
a court proceeding under the LMRDA.” Goodman v. Laborers’ Int’l Union of
N.A., 742 F.2d 780, 783 (3d Cir. 1984); see also Falcone, 420 F.2d at 1162
(“[S]ince an element of a full and fair hearing is that the Trial Body be impartial,
the duty of disqualification because of prejudgment or bias would seem to rest,
at least in part, with the members of the Trial Body.”).
8

20

also Perry v. Int’l Longshoremen’s Ass’n, AFL-CIO, 638 F. Supp. 1441, 1447–48
(S.D.N.Y. 1986) (“[W]hile Hardeman stands for the proposition that courts
reviewing union disciplinary proceedings should not determine the scope of
offenses for which a union may discipline its members, it does not preclude this
court from examining the proceeding for bias or prejudice . . . .”) (internal
citation omitted). An impartial decisionmaker is an essential element of a fair
hearing. Goodman v. Laborers’ Int’l Union of N.A., 742 F.2d 780, 783 (3d Cir.
1984); see also Mayle v. Laborer’s Int’l Union of N.A., Local 1015, 866 F.2d 144,
146 (6th Cir. 1988) (“[E]vidence of a partial trial board is violative of the
LMRDA.”).
To prevail on a claim that a trial committee is biased, the plaintiff “must
make specific factual allegations of bias that show that the [committee was]
incapable of hearing [the] plaintiff[’s] case impartially.” Yager v. Carey, 910 F.
Supp. 704, 715 (D.D.C. 1995); see, e.g., Perry, 638 F. Supp. at 1450 (denying the
union’s motion for summary judgment where two of the individuals who ruled
in favor of convicting the charged union member were political opponents of the
charged union member and hoped to expel him for political and financial gain);
Knight v. Int’l Longshoremen’s Ass’n, 457 F.3d 331, 343 (3d Cir. 2006) (finding
evidence of bias where a member of the trial committee expressed in a letter
that he had antipathy towards a union faction to which the charged union
member belonged and testified at trial that his negative impressions of the
21

faction affected his decision-making process). However, a plaintiff is not
required to show “actual bias” where the circumstances of disciplinary
proceedings present a significant risk of actual bias. Holschen v. Int’l Union of
Painters & Allied Trade/Painters Dist. Council #2, 598 F.3d 454, 461–62 (8th
Cir. 2010) (discussing Wildberger v. Am. Fed’n of Gov’t Employees, AFL-CIO,
86 F.3d 1188, 1196 (D.D.C. 1996)). To violate § 411(a)(5) only one member of a
trial committee need be biased. See Yager, 910 F. Supp. at 715; Knight, 457
F.3d at 343 (“The prejudgment by a single decisionmaker in a tribunal of limited
size [here a committee of three] is sufficient to taint the proceedings and
constitute a denial of the right to a full and fair hearing under the LMRDA.”)
(quoting Goodman, 742 F.2d at 783) (internal quotation marks omitted).
Finally, “a complete de novo review [by an internal union appellate body] may
cure the defect of a biased tribunal in an earlier proceeding.” Goodman, 742
F.2d at 784.
Brittain alleges that Trial Committee member McElhaney was biased
and that he was therefore judged by a tainted tribunal in violation of the
LMRDA. See Docs. 1 ¶¶ 33, 48; 47 at 7, 11, 17–18. Brittain represents that
McElhaney was biased because, at least two years before the Hearing, Brittain
filed an election protest that prevented McElhaney from taking office for at

22

least a year. 9 See Docs. 1 ¶¶ 23, 33; 44-2 at 59, 64, 103, 109; 44-5 ¶ 8. AFGE
counters that McElhaney was not biased because she did not know Brittain filed
a protest until after the Trial Committee rendered a decision on the charges,
and supports its argument with evidence. Doc. 44 at 18–19. McElhaney testified
that she did not know that anyone filed a protest, see Doc. 44-4 at 7–8, 59, and
Harding’s declaration states that he did not notify McElhaney of a protest, see
Doc. 44-5 ¶ 12. Meanwhile, Brittian merely speculates that McElhaney knew of
his protest because his name was on the protest document. See Docs. 44-2 at
109–10; 44-3 at 58. This is not sufficient to rebut AFGE’s evidence. See Cordoba
v. Dillard’s Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“‘[U]nsupported
speculation . . . does not meet a party's burden of producing some defense to a
summary judgment motion. Speculation does not create a genuine issue of fact;
instead, it creates a false issue, the demolition of which is a primary goal of
summary judgment.’”) (quoting Hedberg v. Ind. Bell. Tel. Co., 47 F.3d 928, 931–
32 (7th Cir. 1995)) (emphasis in original). Therefore, Brittain’s bias claim fails.
Compare Goodman, 742 F.2d at 784 (reasoning that there was sufficient
evidence of partiality where multiple members of the trial committee had been
previously fired from union positions by the charged union member), with Kent,

Brittain testified that McElhaney was kept out of office for three years.
Doc. 44-2 at 64, 103. In contrast, his Complaint states that McElhaney was
prevented from assuming office for one year. Doc. 1 ¶ 23.
9

23

2020 WL 1531020 at *16 (“Plaintiffs' various evidence that they had past
disagreements with, negative interactions with, and/or a history of differing
political views with some members of the Hearing Panel does not alone suffice
to establish that those members were biased against Plaintiffs.”).
In his Response, Brittain attempts to introduce a new bias theory.
Brittain asserts that in his disciplinary proceeding there was a substantial risk
of bias because President Cox, who filed the charges and selected the Trial
Committee members, was biased given his close relationship with Newman. See
Doc. 47 at 14–18. Brittain does not allege in his complaint that Cox was biased
or that Cox and Newman had a relationship; the complaint focuses on
McElhaney’s alleged partiality. Doc. 1 ¶ 23. Brittain’s new bias theory is thus a
new claim.
“At the summary judgment stage, the proper procedure for plaintiffs to
assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P.
15(a). A plaintiff may not amend her complaint through argument in a brief
opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004); see also Cook v. CSX Transp., Inc., No. 6:06-cv1193-Orl-19KRS, 2008 WL 2064549, at *2 (M.D. Fla. May 13, 2008) (“[A]n
allegation or argument may be a new ‘claim’ without also constituting an
independent cause of action.”). Thus, Brittain has improperly raised the issue
of Cox’s partiality, and this new theory of bias will not be considered. See San
24

Francisco Residence Club, Inc. v. Baswell-Guthrie, 897 F. Supp. 2d 1122, 1204
(N.D. Ala. 2012) (finding that the plaintiffs were barred from raising a new
theory or argument at the motion for summary judgment stage).
b.
AFGE generally complied with AFGE’s procedures
and rules in carrying out Brittain’s disciplinary
process.
Brittain alleges that AFGE used illegitimate procedures in his
disciplinary proceeding, which violated his due process rights. Doc. 1 ¶¶ 43–48.
In particular, Brittain contends AFGE violated the National Constitution
because Cox appointed all of the Trial Committee members and Brittain was
not tried by members of Local 1976. Id.
Brittain is mistaken. Under Article IX, Section 5(d) of the National
Constitution:
The National President shall be authorized to suspend
immediately an officer . . . for serious misconduct, including but
not limited to . . . negligence . . . , or any other offenses, as described
in Article XXIII, Section 2, where in his or her judgment the
continuance in office of such officer would be inimical to the best
interests of the Federation and its members. At the time of the
suspension, the National President shall serve upon the suspended
officer by registered or certified mail a written notice of the
suspension stating in detail the charges against the officer . . . Such
suspended local officer shall be tried by his or her local under the
procedures established in XXIII. However, the National President,
when he or she deems it in the best interest of the Federation, or
in his or her opinion the local will not proceed promptly to trial, or
cannot be expected to fairly or judiciously try the matter, may . . .
appoint a trial committee . . . for the trial of the suspended officer.
. . . A suspended local officer shall be tired by a trial committee

25

composed of at least three members or employees of the Federation
appointed by the National President . . . .
Doc. 44-7 at 18–19 (emphasis added). Cox adhered to these procedures in
suspending Brittain from his roles as president and as a national convention
delegate. Brittain received written notices of his suspensions and a letter
specifying the charges preferred against him via certified mail, and a trial
committee of three AFGE members appointed by Cox tried his case. See Docs.
44-2 at 45–48, 161–62; 44-6 at 15.
Brittain invites the Court to second guess Cox’s determination that it was
in the best interest of AFGE for Cox to appoint the Trial Committee, but the
Court declines.

10

Even if the procedures used in Brittain’s disciplinary

proceeding did not fully comport with the National Constitution, “a violation of
an internal union constitution during the course of a disciplinary proceeding is
a violation of the LMRDA only if it deprives the Union member of the full and
fair hearing contemplated by [the LMRDA].” Keenan, 937 F. Supp. 2d at 111
(internal quotation marks omitted); see also DeCarlo v. Salamone, 977 F. Supp.
617, 625 (W.D.N.Y. 1997) (“Even where a union fails to follow its own procedural
rules, there is no LMRDA violation unless the shortcoming also ‘contravenes

Neither Cox nor AFGE have explicitly stated why using the selected
trial procedure was in the “best interest of AFGE.” See Doc. 47-1 ¶ 13. Although
not required per se, it is preferred that AFGE convey a basis for such findings
to charged union members.
10

26

specific prohibitions in the LMRDA.’”) (quoting Wellman, 812 F.2d at 1206).
Here, Brittain has not sufficiently shown that any deviation from the National
Constitution denied him due process. See Wildberger, 86 F.3d at 1195 (“We see
nothing inherently wrong with the union constitution authorizing the [union
president] to determine probable cause, prefer the charge, appoint a trial
committee, and then make the ultimate decision based on the committee's
recommendations.”); Wellman, 812 F.2d at 1206 (“[The plaintiff] does not argue
that the membership meeting was a biased tribunal, but merely contends it was
the wrong type of membership meeting. The fact that Wellman was tried at one
type of membership meeting instead of another did not deprive him of a fair
hearing.”); DeCarlo, 977 F. Supp. at 625 (“[The plaintiff’s] claims that the
hearing was marked by procedural shortcomings cannot sustain a claim for
damages under the LMRDA unless the shortcomings also impacted identifiable
rights under [the LMRDA].”).
c.
Brittain introduced witnesses and documentary
evidence at the Hearing.
The LMRDA guarantees union members an opportunity to present
evidence in internal union disciplinary proceedings and to call to their defense
anyone who would willingly testify. See Yager, 910 F. Supp. at 715; Keenan,
937 F. Supp. 2d at 118. Trial committees are not required to compel the

27

appearance of individuals who do not wish to testify. See Keenan, 937 F. Supp.
2d at 118.
Although AFGE’s representative/prosecutor objected to most of the
witnesses and documents that Brittain tried to introduce, Brittain was able to
call some witnesses and introduce some documentary evidence. See Doc 44-2 at
66. Brittain was permitted to call Robert Van Slyke, Docs. 44-2 at 66; 44-6 at
¶14, Brittain testified, Docs. 44-2 at 66; 44-2 at 75; 44-6 at ¶14; 44-4 at 45, and
the Trial Committee admitted twelve joint exhibits and two of Brittain’s
individual exhibits, Docs. 44-2 at 72, 78, 80–82; 44-4 at 39–40; 44-6 ¶ 15. Even
so, Brittain contends that AFGE did not satisfy the LMRDA’s full and fair
hearing requirements. See Doc. 1 ¶¶ 34, 40.
Brittain alleges that the Trial Committee improperly prohibited Skinner
and Devlin from testifying on his behalf, see Doc. 1 ¶¶ 34–36, and improperly
prohibited him from introducing the police report and witness statements, Docs.
1 ¶¶ 34, 37, 39; 44-2 at 82 (“[M]ost of the documents that we had involved police
reports of various natures, and none of that that was allowed in . . . .”). AFGE
counters that all evidence excluded by the Trial Committee was irrelevant to
the charges against Brittain. Doc. 44 at 24. The Court largely agrees with
AFGE.
The Trial Committee reasonably excluded Skinner’s testimony because
management employees are not typically permitted to participate in internal
28

union proceedings, see Docs. 44 at 23; 44-6 ¶¶ 18–19; 44-4 at 54; 44-2 at 66, 82,
and much of Skinner’s testimony would have been duplicative of Brittain’s
testimony, see Docs. 44 at 24. There were also reasonable grounds for excluding
the police report and witness statements. The documents were related to
Skinner’s planned testimony and the Trial Committee did not permit Skinner
to testify. See Doc. 44-2 at 72, 81–82; 44-3 at 89. In addition, the police report
offered no information capable of rebutting the charges against Brittain. See
Doc. 44-4 at 53.
According to Brittain, Devlin would have testified that Newman was
hostile towards Brittain and that it was permissible for Skinner to pay dues to
Local 1976. Doc. 44-2 at 66–67, 69–72. The alleged hostility between Brittain
and Newman is irrelevant. While Devlin’s planned testimony on the dues issue
is relevant to the charges, the Trial Committee’s exclusion of this testimony
ultimately does not alter the outcome of the Court’s due process analysis. 11
AFGE Local 1976’s Constitution stipulates that only individuals “within the
local jurisdiction . . . shall be eligible for membership.” Doc. 44-6 at 59; see also
Docs. 44-4 at 34; 44-2 at 15–16. Skinner was not employed within the
The Court considers that Brittain has not expressly argued in his
pleadings that the Trial Committee’s exclusion of Devlin’s testimony on
supervisor dues payments resulted in a denial of due process. The contention
that Devlin would have provided information on dues payments is only found
in Brittain’s deposition. See Doc. 44-2 at 70–71. Brittain did not incorporate or
reference this testimony in his pleadings.
11

29

jurisdiction of Local 1976, and therefore she did not qualify for membership.
See Docs. 44-2 at 23; 44 at 34. Because she was not a member, she did not owe
dues to Local 1976. Devlin’s testimony would have done little to rebut these
facts. To the extent the rules governing membership and dues payments are
ambiguous, the Court is to provide deference to AFGE’s interpretation of its
rules. See Most v. Am. Fed’n of Musicians of U.S. & Canada, 7 F. App’x 551,
552–53 (9th Cir. 2001) (“Although [the plaintiff] disputes the unions'
interpretation of the rules that he was found to have violated, we are not
inclined to upset a union's interpretation of its own bylaws.”); see also
Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F. Supp. 883, 895
(S.D.N.Y. 1996) (citing Hardeman, 401 U.S. at 244–45) (“[A] union's reasonable
interpretation of the scope of offenses for which it may discipline its members
is entitled to deference.”).
Separately, Brittain raises for the first time in his Response that his
inability to call 12 Devlin 13 and Skinner denied him the opportunity to examine

Calling a witness and cross-examining a witness are distinct acts.
Thus, the Court interprets Brittain’s allegations in his Response that he was
unable to call Cox and Newman to mean that he was unable to present them as
part of his defense. The Court does not interpret this language to mean that
Brittain was unable to cross-examine the witnesses.
12

In his complaint, Brittain argues that the exclusion of Devlin’s
testimony resulted in a denial of due process only because Devlin would have
provided information on Newman’s hostility towards Brittain. Doc. 1 ¶ 36.
13

30

Cox’s bias and, in turn, the partiality of the Trial Committee appointed by Cox.
See Doc. 47 at 18–19. Brittain also contends for the first time in his Response
that the Trial Committee did not allow him to call Cox 14 and Newman as
witnesses, and that this too prevented him from exploring Cox’s bias. See id.;
Doc. 47-1¶ 26. The Court will not consider these new allegations as they are
directly related to and stem from Brittain’s improperly raised bias theory
regarding Cox’s relationship with Newman and Cox’s alleged partiality. See
supra Part II.B.3.a; Doc. 50 at 6–7.
Brittain does not argue that Cox would have otherwise been a pertinent
witness. As AFGE asserts with respect to Cox, LMRDA does not provide union
members a right to call an individual as a witness simply because the individual
filed the charges at issue. See Yager, 910 F. Supp. at 717 (“[P]laintiffs do not
necessarily have a right to question the person who filed the charges.”); Doc. 44
at 21–22. Moreover, Penas’ declaration states that AFGE called Newman as a
witness. Doc. 44-6 ¶ 13. Brittain has offered no evidence to rebut this, and
Brittain does not allege that he was unable to cross-examine Newman.
In total, the Trial Committee provided Brittain a sufficient opportunity
to present pertinent evidence and witnesses at the Hearing.

McElhaney testified and Penas states in his declaration that neither
AFGE nor Brittain attempted to call Cox. See Docs. 44-6 ¶ 16; 44-4 at 43; see
also Doc. 44-2 at 52–53. Again, a transcript would be helpful.
14

31

d.
The Trial Committee permitted Brittain to crossexamine pertinent witnesses.
Union members facing disciplinary charges “have a right implicit in the
full and fair hearing provision of the LMRDA to . . . cross-examine pertinent
witnesses.” Yager, 910 F. Supp. at 717 (emphasis in original); see also Ritz v.
O’Donnell, 566 F.2d 731, 735 (D.C. Cir. 1977) (“The courts have uniformly
recognized that the right of confrontation and cross-examination of witnesses is
fundamental to the ‘full and fair hearing’ requirement[.]”). Brittain’s
representative, Hardison, was able to cross-examine a least some of AFGE’s
witnesses, despite AFGE objecting to many of his questions. See Doc. 44-2 at
75. For example, Hardison cross-examined Mary Pararo. Doc. 44-6 ¶ 13.
Brittain, nevertheless, contends that he was denied a full and fair hearing
because he was unable to cross-examine Cox. Doc. 1 ¶ 38. AFGE did not call
Cox to testify, see Docs. 44-4 at 43–44, 53–54; 44-3 at 89; 44-6 ¶ 16, so it follows
that Brittain did not have an opportunity to cross-examine Cox. Brittain’s claim
that he was unduly denied the opportunity to cross-examine witnesses is
without basis. See Keenan, 937 F. Supp. 2d at 117 (concluding that the plaintiff
“was provided due process: he confronted every witness presented against him
and could call to his defense anyone who would willingly testify”); see also
Yager, 910 F. Supp. at 717.

32

e.

Brittain’s conviction was supported by evidence.

“As the Supreme Court has made clear, a full and fair disciplinary
hearing under the LMRDA requires ‘the charging party to provide [only] some
evidence at the disciplinary hearing to support the charges made.’”
Georgopoulos, 942 F. Supp. at 895 (quoting Hardeman, 401 U.S. at 234); see,
e.g., Kent, 2020 WL 1531020 at *14 (“The Hearing Panel supported its findings
with a 15-page recitation of testimony and evidence received at the hearing
along with the Hearing Panel's discussion and assessment of that evidence, all
of which shows how it arrived at its conclusions.”); see also Babler v. Futhey,
618 F.3d 514, 520 n.4 (6th Cir. 2010). Here, AFGE produced both witnesses and
documentary evidence at the Hearing that substantiated the charges against
Brittain. See Doc. 44-6 ¶¶ 13, 20. Newman testified that Brittain represented
Skinner in an EEO Complaint containing allegations against Newman, id. ¶ 20,
AFGE introduced copies of the June 17 email in which Brittain reported Krol
to hospital management, Doc. 44-2 at 160, Brittain admitted to representing
Skinner in the EEO complaint and sending the June 17th email to
management, and Brittain did not (and does not) deny that Skinner paid
membership dues to Local 1976, see Docs. 44-6 ¶ 21; 44-2 at 46. Furthermore,
the Trial Committee listened to Hearing testimony and weighed Brittain and
AFGE’s arguments and evidence in coming to a unanimous decision that
Brittain was guilty as charged. Docs. 44-6 at 3–5, 44-4 at 37. Thus, no
33

reasonable factfinder could conclude that the Trial Committee’s decision was
not supported by “some evidence” (The Trial Committee’s written findings were
bare-bones but sufficient).
To the extent that Brittain takes issue with the scope of the offenses for
which he was charged and convicted, see Doc. 47 at 19–20, AFGE’s reasonable
interpretation of the scope of offenses for which it may discipline its members
is given deference. See Georgopoulos, 942 F. Supp. at 895 (citing Hardeman,
401 U.S. 223, 244–45); see also Most, 7 F. App’x at 552–53 (“Although [the
plaintiff] points to evidentiary conflicts, the referee's resolution of these
conflicts is entitled to deference.”).
III.

CONCLUSION
Brittain’s disciplinary proceedings were far from perfect, and AFGE’s

procedures, as employed, cannot be considered best practice. Nevertheless,
viewing the record in the light most favorable to Brittain, Brittain received the
due process he was entitled to under § 411(a)(1)(5). See Wellman, 812 F.2d at
1205 (“While we apply traditional due process concepts, we recognize that a
union has a significant interest in controlling internal discipline, and so do not
require the union's disciplinary proceeding to incorporate the same protections
found in criminal proceedings.”). Brittain received a letter that adequately
specified the charges preferred against him. AFGE mailed Brittain a notice of
hearing fifteen days before the hearing date, providing him adequate time to
34

prepare a defense. Brittain was present at the Hearing during which his
representative presented witnesses and evidence and cross-examined at least
one AFGE witness. At the Hearing, AFGE presented sufficient evidence to
support the imposition of discipline.
Accordingly, it is hereby
ORDERED:
1.

Defendant American Federation of Government Employees, AFLCIO’s Motion for Summary Judgment (Doc. 44) is GRANTED as to
Plaintiff Frederick L. Brittain’s 29 U.S.C. § 411 claim (Count I).

2.

The Clerk shall terminate all deadlines and close the case file.

DONE AND ORDERED in Jacksonville, Florida this 7th day of June,
2021.

tn
Copies:
Counsel of record

35