Debeikes v. Hawaiian Airlines, Inc. et al

Filing 143

ORDER GRANTING SUMMARY JUDGMENT AS TO THE MOTIONS TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT OF DEFENDANTS HAWAIIAN AIRLINES, INC. AND ASSOCIATION OF FLIGHT ATTENDANTS-CWA, AFL-CIO re 85 , 90 , 94 , 99 - Signed by JUDGE ALAN C KA Y on 10/28/2015. "For the foregoing reasons, it is hereby ORDERED that summary judgment is granted as to: Defendant Hawaiian Airlines, Inc.'s Motion to Dismiss, or in the Alternative, Grant Summary Judgment, ECF No. 85; The Substantive Joinder of Association of Flight Attendants-CWA, AFL-CIO in Defendant Hawaiian Airlines, Inc.'s Motion to Dismiss, or in the Alternative, Grant Summary Judgment [Doc. No. 85], ECF No. 90; Defendant Association of Flight Attendants-CWA, AFLCIO's Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 94; and Defendant Hawaiian Airlines, Inc.'s Joinder to Defendant Association of Flight Attendants-CWA, AFL-CIO's Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. 94], ECF No. 99. The Clerk of the Court is instructed to close the case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

Matthew J. Debeikes,
Plaintiff,
vs.
Hawaiian Airlines, Inc. and
Association of Flight
Attendants-CWA, AFL-CIO,
Defendants.

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Civil No. 13-00504 ACK-RLP

ORDER GRANTING SUMMARY JUDGMENT AS TO THE MOTIONS TO DISMISS OR
IN THE ALTERNATIVE FOR SUMMARY JUDGMENT OF DEFENDANTS HAWAIIAN
AIRLINES, INC. AND ASSOCIATION OF FLIGHT ATTENDANTS-CWA, AFL-CIO
For the reasons set forth below, the Court GRANTS
summary judgment in response to Defendant Hawaiian Airlines,
Inc.’s Motion to Dismiss, or in the Alternative, Grant Summary
Judgment, ECF No. 85, the Joinder thereto of Defendant
Association of Flight Attendants-CWA, AFL-CIO, ECF No. 90,
Defendant Association of Flight Attendants-CWA, AFL-CIO’s Motion
to Dismiss or, in the Alternative, for Summary Judgment, ECF No.
94, and the Joinder thereto of Defendant Hawaiian Airlines, Inc.,
ECF No. 99.
PROCEDURAL BACKGROUND
On October 3, 2013, Plaintiff Matthew J. Debeikes
(“Debeikes” or “Plaintiff”) filed a complaint against Defendant
Hawaiian Airlines, Inc. (“Hawaiian Airlines”) and Defendant
1

Association of Flight Attendants-CWA, AFL-CIO (“AFA”)
(collectively, “Defendants”).

Compl., ECF No. 1.

The Complaint

alleged that Defendants forced Plaintiff into early retirement on
May 29, 2013.

Id. ¶¶ 9, 14, ECF No. 1.

Specifically, the

Complaint contended that Hawaiian Airlines violated the
collective bargaining agreement (“CBA”) governing the terms and
conditions of Debeikes’ employment with the company, and that AFA
breached its duty to fairly represent Plaintiff as one of its
bargaining unit members.1/

Id. ¶¶ 11, 12.

On October 30, 2014, both Defendants moved for summary
judgment.

AFA filed a Motion for Summary Judgment (“MSJ”) as to

Plaintiff’s claim that it breached the union’s DFR, ECF No. 51,
and Hawaiian Airlines filed a MSJ as to all of Plaintiff’s
claims, ECF No. 54.
On February 17, 2015, the Court granted Defendants’
MSJs as to all of Plaintiff’s claims.

ECF No. 75.

In the Order,

the Court concluded that none of Plaintiff’s claims, as presented
in the Complaint, was viable.

First, the Court found that

1/

As explained in the Court’s prior Order Granting the
Motions for Summary Judgment of Defendants Hawaiian Airlines,
Inc. and Association of Flight Attendants-CWA, AFL-CIO (“Order”),
Debeikes’ Complaint pleaded a “hybrid § 301/fair representation”
claim. Order at 21, ECF No. 75. Such a claim exempts from
federally-mandated arbitration those claims alleging both that
(1) a plaintiff’s employer violated a CBA, and (2) his union
breached its duty of fair representation (“DFR”) in challenging
the CBA violation. See DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 165 (1983).
2

Plaintiff’s allegations of “constructive discharge,” related to
Hawaiian Airlines’ “refus[al] to abide by the CBA,” were
preempted by his breach of CBA claim.

In addition, the Court

found that the claim of constructive discharge was unsupported on
the merits.

See Order at 26-30, ECF No. 75.

Second, the Court

concluded that it lacked jurisdiction to hear Plaintiff’s breach
of CBA claim against Hawaiian Airlines, given that Debeikes had
retired and filed suit without exhausting the CBA’s grievance
procedures.

See id. at 39.

Third, the Court concluded that it

must dismiss Plaintiff’s breach of DFR claim against AFA because
his breach of CBA claim was not viable, consistent with Bliesner
v. Commc’n Workers of Am., 464 F.3d 910, 913 (9th Cir. 2006).
See id.

In the alternative, the Court also concluded that none

of Plaintiff’s factual allegations stated a viable breach of DFR
claim.

See id. at 40-63.
The Order dismissed Plaintiff’s claims without

prejudice and granted Debeikes 30-days’ leave to file an Amended
Complaint.

Id. at 64.

On March 11, 2015, Debeikes filed his

First Amended Complaint (“Am. Compl.”), again purporting to bring
a hybrid § 301/fair representation claim against AFA and Hawaiian
Airlines while also claiming “constructive discharge.”2/
2/

Am.

The Amended Complaint also purports to invoke the Labor
Management Relations Act (“LMRA”), although it does not
thereafter articulate a claim under the LMRA. In any event, the
LMRA does not apply to this case. Disputes involving airlines
and their employees are covered by the Railway Labor Act (“RLA”),
3

Compl. ¶¶ 8-14, ECF No. 80.
On March 25, 2015, Hawaiian Airlines filed its Motion
to Dismiss, or in the Alternative, Grant Summary Judgment
(“Hawaiian Airlines’ MTD/MSJ”), ECF No. 85, accompanied by a
Concise Statement of Facts (“Hawaiian Airlines’ CSF”), ECF No.
86.3/

AFA filed a Joinder to Hawaiian Airlines’ MTD/MSJ on March

31, 2015.

ECF No. 90.

On March 31, 2015, the parties also

attended a Final Pretrial Conference with Magistrate Judge
Puglisi.

As memorialized in the conference minutes, the Court

set a continued trial date, and Plaintiff requested to re-open
discovery.

He was expressly “advised to file [a] Motion for

Additional Discovery.”
No. 91.

Minutes of Conf. of Mar. 31, 2015, ECF

Plaintiff did not, however, proceed to file such a

motion.
On April 14, 2015, AFA also filed its own Motion to
Dismiss or, in the Alternative, for Summary Judgment (“AFA’s
MTD/MSJ”), ECF No. 94, accompanied by a Concise Statement of

45 U.S.C. § 151 et seq. The LMRA specifically excludes from its
coverage entities covered by the RLA. 29 U.S.C. § 152(2).
3/

On April 24, 2015, Hawaiian Airlines also filed a
separate “Motion for Sanctions Pursuant to FRCP Rule 11" related
to Plaintiff’s Am. Compl. ECF No. 97. Magistrate Judge Puglisi
denied Hawaiian Airlines’ motion for sanctions on October 13,
2015, granting the company leave to “file a second motion seeking
Rule 11 sanctions after the district court issues its decision on
the pending motions to dismiss or for summary judgment.” See
Order Denying Without Prejudice Defendant Hawaiian Airlines,
Inc.’s Motion for Sanctions Pursuant to FRCP Rule 11 at 2-3, ECF
No. 141.
4

Facts (“AFA’s CSF”), ECF No. 95.

Hawaiian Airlines filed a

Joinder to AFA’s MTD/MSJ on May 7, 2015.

ECF No. 99.

On May 7, 2015, Plaintiff filed an Opposition to AFA’s
MTD/MSJ, ECF No. 103, and a Concise Statement in Opposition to
AFA’s MTD/MSJ (“Plf.’s CSF - AFA”), ECF No. 105.

On the same

day, Plaintiff also filed an Opposition to Hawaiian Airlines’
MTD/MSJ, ECF No. 102, and a Concise Statement in Opposition to
Hawaiian Airlines’ MTD/MSJ (“Plf.’s CSF - Hawaiian Airlines”),
ECF No. 104.

Neither of Plaintiff’s Oppositions raised any issue

related to discovery.

On May 14, 2015, AFA filed a Reply

Memorandum in Support of MTD/MSJ (“AFA Reply”), ECF No. 108, and
Hawaiian Airlines filed a Reply Memorandum in Support of MTD/MSJ,
ECF No. 110 (“Hawaiian Airlines Reply”), ECF No. 110.

Hawaiian

Airlines’ MTD/MSJ and AFA’s MTD/MSJ were set for a consolidated
hearing on May 28, 2015.

See Notices of Hearing on Motions, ECF

Nos. 93, 96.
On May 11, 2015, the Court issued a Minute Order
observing that Defendants’ MTD/MSJs were filed after the
dispositive motions deadline had passed.4/

The parties were

therefore “encouraged to stipulate to an extension of the
dispositive motions deadline.”

If such an agreement was not

4/

Pursuant to the Rule 16 Scheduling Order in this case,
the dispositive motions deadline was December 10, 2014, and the
discovery deadline was March 13, 2015. See Scheduling Order, ECF
No. 23; Am. Scheduling Order, ECF No. 92.
5

possible, the parties were “directed to seek a conference
regarding such extension with Judge Puglisi prior to the hearing
scheduled for May 28, 2015 on Defendants’ motions.”

ECF No. 107.

The parties did not reach an agreement as to a
stipulation to extend the dispositive motions deadline.

Instead,

the parties attended a telephonic status conference with
Magistrate Judge Puglisi on May 27, 2015, after which the Court
issued an order extending the dispositive motions deadline, nunc
pro tunc, to April 15, 2015.
be considered timely.
116.

This allowed Defendants’ motions to

Minutes of Conf. of May 27, 2015, ECF No.

The Court’s Minutes also reflect that Plaintiff’s counsel

raised at the May 27, 2015 status conference that “he would like
to depose the declarants who submitted declarations in support of
the Motion to Dismiss or, in the Alternative, for Summary
Judgment.”

Id.
Plaintiff’s counsel raised the same request the next

day at the Court’s scheduled hearing on Defendants’ summary
judgment motions.

He made an oral motion to continue the hearing

and read the minutes of the May 27, 2015 conference into the
record.

The Court granted Plaintiff’s oral motion to continue

the hearing, in order to allow Plaintiff time to file a written
motion to reopen discovery.

See Minutes of Hearing of May 28,

2015, ECF No. 117.
Plaintiff filed his Motion to Reopen Discovery on June

6

16, 2015.

ECF No. 121.

Magistrate Judge Puglisi denied

Plaintiff’s motion in its entirety on July 17, 2015, for the
reasons explained in his Order Denying Plaintiff Matthew J.
Debeikes’ Motion to Reopen Discovery.

ECF No. 126.

Plaintiff

appealed Magistrate Judge Puglisi’s order on July 27, 2015, ECF
No. 127, and the Court set a hearing on Plaintiff’s appeal for
September 3, 2015, ECF No. 130.5/
The Court denied Plaintiff’s appeal on October 9, 2015,
for the reasons set forth at length in its Order Affirming the
Magistrate Judge’s Order Denying Plaintiff Matthew J. Debeikes’
Motion to Reopen Discovery.

ECF No. 139.

The Court subsequently

heard oral arguments on Defendants’ MTD/MSJs on October 22, 2015.
FACTUAL BACKGROUND
As a preliminary matter, the Court will consider
documents outside the pleadings in resolving the instant motions.
5/

As discussed at greater length below, the Court also
accepted into the record at the September 3, 2015 hearing a copy
of an Opinion and Award of the System Board of Adjustment, dated
July 15, 2015, related to AFA’s “Grievance Concerning Agreement
Section 23.E.10.c” (“Opinion and Award”). ECF No. 132. On
September 8, 2015, the Court issued a Minute Order directing AFA
to file a copy of the underlying grievance and directing the
parties to file supplemental briefs addressing “the impact of the
Opinion and Award on Plaintiff, given that he is retired” and
“whether the Opinion affects his rights in this action or his
ability to pursue reinstatement and backpay through the
arbitration procedures addressed in the Opinion.” Minute Order
of Sept. 8, 2015, ECF No. 134.
AFA filed a copy of the underlying grievance on September 9,
2015, ECF No. 135, and each party filed a supplemental brief on
September 23, 2015, ECF Nos. 136, 137, 138. These documents and
their impact on the instant Order are discussed below.
7

If matters outside the pleadings are presented to and not
excluded by the Court on a motion to dismiss under Federal Rule
of Civil Procedure (“Rule”) 12(b)(6), the motion is treated as
one for summary judgment under Rule 56, and “[a]ll parties must
be given a reasonable opportunity to present all the material
that is pertinent to the motion.”

Fed. R. Civ. P. 12(d).

Where,

as here, a movant expressly styles a motion as requesting
dismissal or summary judgment in the alternative, a nonmovant is
considered to have been “fairly apprised that the district court
may look beyond the pleadings.”

Morrow v. City of Glendale, No.

92-56286, slip op. at * 1 (9th Cir. Mar. 17, 1994).
Additionally, the Court will incorporate below the
relevant factual findings set forth in its prior Order.

See,

e.g., Illinois Nat’l Ins. Co., Inc. v. Nordic PLC Constr., Inc.,
Civ. No. 11-00515 SOM-KSC, 2013 WL 3975668 * 1 n.1 (D. Haw. July
31, 2013) (resolving summary judgment motion by “incorporat[ing]
the facts and procedural history set forth in its prior orders by
reference” and “repeat[ing] only the most salient details”);
Wapato Heritage, LLC v. U.S., No. CV-08-177-RHW, 2009 WL 3782869
* 1 (E.D. Wash. Nov. 6, 2009) (“The Court incorporates by
reference herein the facts set forth in its prior summary
judgment order.”).

Facts determined on the basis of the instant

briefing are integrated below with the Court’s recitation of its

8

relevant prior factual findings.6/
Plaintiff was employed as a flight attendant by
Hawaiian Airlines from July 9, 1986 to May 29, 2013, during which
time he was a member of AFA.

Order at 3, ECF No. 75.

During the

period of Debeikes’ employment, a CBA between AFA and Hawaiian
Airlines covered the terms and conditions of employment for
flight attendants.

Hawaiian Airlines maintained a set of “House

Rules” during Debeikes’ employment.

They provide that sexual

harassment is unacceptable and may result in discipline,
including discharge.

Id.

The company also maintained a

Discrimination and Harassment-Free Work Place Policy (the
“Policy”), a violation of which could result in discipline,
including discharge.

Id. at 3-4.

The Policy prohibits sexual

harassment and provides specific examples of sexual harassment,
including: verbal harassment, verbal abuse, physical harassment,
visual harassment, and unwanted sexual advances or threats of
reprisal.

Id. at 4.
On or about January 14, 2013, Plaintiff served as a

flight attendant on a flight from Maui to Seattle with Jane Doe 1
(“Doe 1").

During that flight, Plaintiff engaged her in what his

declaration testimony describes as “off-color banter.”

6/

He also

The Court notes that Plaintiff has stated that he “does
not dispute Defendants’ citations to” the Court’s factual
findings in the Order, but merely “disputes the import of the
facts.” Plf.’s CSF - Hawaiian Airlines at 2, ECF No. 104, Plf.’s
CSF - AFA at 2, ECF No. 105.
9

discussed with her certain “graphic” online content.

During the

return flight the next day, it is undisputed that Plaintiff
attempted to massage Doe 1's shoulder.

Id.

Plaintiff also

admits that he “may” have touched her again later in the flight.
Id. at 5.

A few days later, flight attendant Cindy Burt

(“Burt”), who was also on the January 14, 2013 flight, told
Plaintiff she was displeased with his actions and statements
toward Doe 1.

Id.

Debeikes wrote an apology letter to Doe 1 and had it
delivered to her by another flight attendant.

Plaintiff later

met with his supervisor, Susan Moss (“Moss”), to describe his
conduct toward Doe 1, without disclosing names or dates.

Moss

received further reports regarding the incident from Burt and the
In-Flight Manager for Hawaiian Airlines to whom Doe 1 had
recounted the incident in detail.

Id.

On or about January 30, 2013, Hawaiian Airlines
informed Debeikes that it was holding him out of service with
pay, pending an investigation into whether Debeikes had violated
the company’s House Rules and Policy.

Id.

The letter informing

Plaintiff of the investigation stated broadly that the company
had “received reports of potentially improper conduct on a recent
flight.”

Id. at 6.

Debeikes received a call from AFA

representative Scott Henton (“Henton”) a few days later and
discussed the situation with him.

10

Id.

On March 8, 2013, Hawaiian Airlines personnel met with
Plaintiff for a fact-finding interview.

Debeikes was accompanied

by AFA representatives Scott Akau (“Akau”) and Henton, who also
met with Debeikes to discuss the investigation during the hour
prior to the meeting.

At the beginning of the meeting, Henton

and Akau requested to examine all documents pertaining to the
investigation, citing the CBA’s § 23.E.10.c.

Id.

CBA

§ 23.E.10.c states:
When a Flight Attendant attends a meeting that
may result in disciplinary action, the Flight
Attendant and Association member will be
allowed adequate time during the meeting to
privately review all documents or reports
relating to such action.
Id. at 7.
Hawaiian Airlines refused to turn over any
investigatory documents.

It was the company’s position that CBA

§ 23.E.10.c applied only to disciplinary proceedings, and not to
fact-finding interviews.

AFA disagreed, and Henton and Akau

instructed Debeikes not to answer questions.

Having reached an

impasse over their conflicting interpretations of CBA
§ 23.E.10.c, the parties terminated the meeting.

Id.

On March 29, 2013, by letter, Hawaiian Airlines
indicated that it wanted to complete its investigation and asked
Debeikes if he wanted to be interviewed again.

The letter

indicated that if he did not participate, the investigation would
be concluded without his input.

It also stated that Hawaiian
11

Airlines still refused to provide “all documents related to and
generated from this investigation,” and it described the subject
of the investigation broadly as “allegations that you may have
engaged in conduct violating Company House Rules and the
Discrimination and Harassment-Free Work Place policy.”

Id. at 8.

On April 4, 2013, Henton sent Debeikes a letter on
behalf of AFA, advising him of his rights and pointing out that
the company could not penalize him for choosing not to attend the
interview.

The letter noted that AFA continued to disagree with

Hawaiian Airlines regarding whether its refusal to produce
documents violated the CBA terms.

Id.

Henton’s letter also

stated:
“The decision to participate, or not, in
the Company ‘EEOC’ investigation is yours,
however I would advise you that in my
experience, in the vast majority of cases,
statements made by the accused, are used
as evidence against the accused.”
Id. at 8-9.
Nonetheless, Debeikes agreed to meet with Hawaiian
Airlines personnel again on April 5, 2013.

Debeikes was

accompanied to the interview by Henton and Akau, who also met
with him before the meeting.

Id.

It is the declaration

testimony of AFA’s attorney, Jay Trumble (“Trumble”), that he
also met with Debeikes before the meeting and repeatedly told
Debeikes not to attend.

He indicates that he told Plaintiff that

AFA continued to disagree with Hawaiian Airlines’ position
12

regarding whether CBA § 23.E.10.c obligated the company to
produce investigation documents at that time, but that Plaintiff
and AFA would be able to review the documents if he waited for
the disciplinary hearing.

Id.

Trumble’s declaration adds that Plaintiff asked him no
questions regarding AFA’s position.

Id.

Instead, Plaintiff

stated that he wanted to “get it over with,” because his anxiety
was high and he had been held out of service for weeks.
10-11.

Id. at

Plaintiff’s own declaration testimony confirms that

Trumble warned him that Hawaiian Airlines may have had another
complainant come forward, and that could be why the company did
not want to share its documents.

Id. at 11.

In the course of the April 5, 2013 interview, Plaintiff
made a variety of admissions regarding the conduct that was the
subject of the company’s investigation.

He stated, inter alia,

that he attempted to give Doe 1 a shoulder rub, may have touched
her again thereafter, and made sexually explicit comments to her.
Plaintiff was also interviewed at the meeting about conduct
related to another flight attendant, Jane Doe 2 (“Doe 2").
Debeikes was asked about allegations that he, inter alia, rubbed
her shoulders and made several specific comments of a highly
graphic sexual nature.

Id.

Debeikes did not deny the

accusations regarding Doe 2 and instead indicated that he may
have done it, but did not remember.

13

Id. at 12.

Following the

meeting, Hawaiian Airlines formally concluded that Debeikes had
made unwanted sexual comments to and unwanted physical contact
with Does 1 and 2.

Id.

Meanwhile, AFA and Hawaiian Airlines had continued to
discuss their disagreement regarding CBA § 23.E.10.c and the
company’s obligation to provide investigatory documents.
13.

Id. at

On April 3, 2013, AFA representatives including Henton,

Akau, and Trumble had met with Hawaiian Airlines representatives
to discuss the dispute.

Even earlier, on March 25, 2013, Trumble

had sent an email to Sharon Soper, AFA’s Master Executive Council
(“MEC”) President, regarding the disagreement.

Id.

On April 12, 2013, one week after Debeikes’ interview
with the company, AFA filed Grievance No. 46-99-02-07-13,
entitled “Grievance: MEC: EEOC Investigation Documents” (the
“Grievance”). It challenged Hawaiian Airlines’ refusal to provide
documents in what AFA considered a violation of the CBA,
specifically § 23.E.10.c.

See Grievance, ECF No. 135.

Trumble

and Henton’s declarations explain that the Grievance was what the
union refers to as a “MEC grievance,” a form of prospective class
action grievance filed under CBA § 23.D on behalf of all members
to challenge Hawaiian Airlines’ misinterpretation or
misapplication of the CBA terms.

Order at 14, ECF No. 75.

Additional declaration testimony submitted by AFA
explains that a MEC grievance differs from a Local Executive

14

Committee (“LEC”) grievance under CBA § 23.C, which AFA could
have filed had Debeikes actually been disciplined.

LEC

grievances challenge discipline issued to individuals and seek
retroactive remedies, including reinstatement and backpay.7/

Id.

at 14 n.8; see also Decl. of Scott Henton (“Henton Decl.”) ¶¶ 5,
7, 9-11, ECF No. 95-1 (discussing grievance form differences).
Trumble’s declaration testimony is that, had Plaintiff
gone through with the disciplinary hearing, AFA would have filed
an individual LEC grievance on his behalf regarding the company’s
denial of documents and any discipline he was issued.

7/

Order at

As relevant to the discussion below, certain timing
limitations apply to the processing of LEC grievances under CBA
§ 23.C.
First, a grievance must be filed within 60 days of when a
flight attendant knew or reasonably would have known of the facts
on which it is based.
Second, the Director of Inflight Services or his designee
must schedule a meeting within 10 days of receiving the
grievance.
Third, if the parties cannot resolve the dispute, Hawaiian
Airlines shall, upon request, forward the grievance to the Vice
President of Inflight Services or his designee, who must evaluate
the appeal and furnish a written decision within fifteen days of
the meeting.
Fourth, the grievant may appeal that decision to the
Hawaiian Airlines Flight Attendants System Board of Adjustment
(“SBA”) within thirty days. The CBA does not, however, appear to
require the SBA to schedule a hearing on such appeal within any
set number of days.
Fifth, once the appeal hearing is held, the SBA must
render a decision within thirty days. See Henton Decl. ¶¶ 13-17,
ECF No. 95-1 (citing CBA § 23.C(1)-(6)); AFA’s CSF Ex. 1 at
HAL00406-07, ECF No. 95-3; AFA’s CSF Ex. 2 at HAL000410, ECF No.
95-4; Decl. of Doogan Mahuna (“Mahuna Decl.”) ¶¶ 8-11, ECF No.
86-1; Hawaiian Airlines’ CSF Ex. 1 at HAL00406-07, HAL000410, ECF
No. 86-2.
15

15, ECF No. 75.

Henton and Akau have also attested that AFA

would have filed such a grievance and taken it to arbitration,
had Debeikes gone to the hearing and been disciplined.

Henton

Decl. ¶ 32, ECF No. 95-1; Decl. of Scott Akau (“Akau Decl.”) ¶ 4,
ECF No. 95-2.
It is also Henton’s declaration testimony that AFA
chose to file a MEC grievance, rather than an individual LEC
grievance, in order to attain relief for both Honolulu and Los
Angeles-based flight attendants.
95-1.

Henton Decl. ¶¶ 5-10, ECF No.

Specifically, the Grievance requested that Hawaiian

Airlines “[c]ease and desist refusal to provide documentation in
any and all Company investigations” and “[r]everse the discipline
and reinstate and make whole any and all affected flight[]
attendants that were disciplined or discharged based upon the
investigations.”

Grievance, ECF No. 135.

Henton attests that it is AFA’s normal practice to file
MEC grievances, rather than individual LEC grievances, “where a
whole class of Flight Attendants are affected, both in Honolulu,
and in Los Angeles,” as a result of a CBA dispute with Hawaiian
Airlines.

Henton Decl. ¶ 10, ECF No. 95-1. This is evidently

because filing an individual “Non-Disciplinary Grievance” under
CBA § 23.C “would do nothing for the Los-Angeles based Flight
Attendants who could be adversely affected by Hawaiian Airlines’
interpretation” of its CBA obligations.

16

Id. ¶¶ 7-8.

In

addition, had it not filed a MEC grievance, AFA may have had to
file individualized LEC grievances “for Mr. Debeikes . . . and
then every other Flight Attendant who could be denied []
documents at the investigatory interview stage.”

Id. ¶ 9.8/

Notice of the Grievance was never provided to
Plaintiff.

Order at 15, ECF No. 75.

Declarations submitted by

AFA indicate that it is not the union’s policy or practice to
provide individual members with copies of MEC grievances or
“disclose files related to open, pending issues.”

Id. at 14-15.

On May 21, 2013, Hawaiian Airlines informed Debeikes by
letter that it had concluded its investigation and believed he
had violated the company’s Policy and House Rules related to
sexual harassment and unprofessional conduct.
hearing was set for May 30, 2013.

A disciplinary

Id. at 15.

On May 23, 2013, Plaintiff spoke by telephone with Akau
and asked him whether he could retire from Hawaiian Airlines
before the disciplinary hearing.

Id. at 15-16.

know but said he would find out.

Id. at 16.

8/

Akau did not

The next day,

The Court observes that the Opinion and Award makes clear
that the issue of Hawaiian Airlines’ withholding of documents had
been actively raised in the investigations of just two flight
attendants when the Grievance was filed: “Doe I” (evidently,
Debeikes) and “Doe II.” See Opinion and Award at 3, ECF No. 132.
The Court therefore reads Henton’s reference to the “whole
class of Flight Attendants [] affected” as referring to AFA’s
full membership, insofar as all members potentially “could be
adversely affected” by Hawaiian Airlines’ narrow interpretation
of the scope of its CBA obligations to union employees.
17

having had an AFA representative check with the company, Akau
told Plaintiff that retirement would be an option.

Akau also

referred Plaintiff to Trumble, who advised Debeikes that he
probably would be terminated by Hawaiian Airlines.

Trumble

further suggested that by retiring before the hearing, Plaintiff
could retain the benefits of continued flight privileges with the
company and an employment record free of a harassment-related
termination.

Id.9/

On May 29, 2013, Debeikes tendered a retirement letter
to Hawaiian Airlines.

He also signed formal retirement paperwork

with the company, for an effective retirement date of May 30,
2013.

Id.

During the meeting10/ at which he signed the

paperwork, Debeikes expressed some vacillation regarding
retirement and asked whether there were alternative remedies
besides termination.

Id. at 17.

9/

The Court notes that there is no indication in the record
that Akau and Trumble did not remain available to confer with
Plaintiff up to and including the day of his retirement,
regardless of Henton’s unavailability. Plaintiff has also
indicated that he spoke with Akau and Trumble within the two days
leading up to his retirement paperwork signing. His answers to
Hawaiian Airlines’ interrogatories state that he had a “follow up
call with Scott Akau regarding my chances 5/27" and a “call from
Jay Trumble, union attorney, on 5/27 or 28, 2013.” Plf. Matthew
J. Debeikes’ Response to Def. Hawaiian Airlines, Inc.’s First
Request for Answers to Interrogatories at 4, ECF No. 55-14.
10/

AFA representatives did not accompany Debeikes to the
signing of his retirement paperwork. Trumble’s declaration
testimony is that it is AFA’s practice not to accompany members
to such paperwork signing unless specifically requested by the
member. Order at 17-18, ECF No. 75.
18

Debeikes’ declaration testimony is that a Hawaiian
Airlines employee, Gail Kim-Moe (“Kim-Moe”),11/ said “I would be
terminated if I attended the May 30, 2013 disciplinary hearing.”
His declaration testimony is that Kim-Moe’s statement was made in
the presence of Debeikes’ direct supervisor, Cheryl Price
(“Price”), Senior Manager, In-Services, who “never corrected Gail
Kim-Moe that termination was imminent.”

Declaration of Plaintiff

Matthew J. Debeikes (“Debeikes Decl.”) ¶¶ 1-2, ECF Nos. 104-1,
105-1.12/

Plaintiff contends for the first time in his Opposition

declarations that he shared Kim-Moe’s comment with Henton.

See

Debeikes Decl. ¶ 13, ECF Nos. 104-1, 105-1.

11/

Henton’s declaration testimony is that Kim-Moe was, at
the time, a Human Resources Business Partner at Hawaiian Airlines
who “was not the decisionmaker” as to “whether and/or what
disciplinary action should be issued to Mr. Debeikes.” Instead,
the “Director of Inflight or his/her designee” would have made
this decision. Henton Decl. ¶ 31, ECF No. 95-1.
12/

The Court notes that there is some uncertainty in the
record as to the exact order of statements by Plaintiff and KimMoe at their May 29, 2013 meeting. For example, Plaintiff’s
initial declaration in this case stated that he had asked KimMoe: “‘if I would have gone to the Hearing would I have been
terminated?’ She said [‘]yes.’” Debeikes Decl. ¶ 19, ECF No. 701. Such language would seem to suggest that Plaintiff asked
about his chances of termination after submitting his retirement,
rather than being informed of Kim-Moe’s opinion beforehand.
In any event, it is not disputed that Plaintiff “presented
[Kim-Moe] with his signed letter of retirement” at the meeting.
Kim-Moe Decl. ¶ 35, ECF No. 55-1. The letter, dated May 29,
2013, is in the record at ECF No. 55-9. It appears plainly to
have been prepared by Plaintiff prior to the meeting. It is not
a form document, does not use any letterhead, and contains four
sentences of typed body text expressing Plaintiff’s personal
sentiments regarding his retirement.
19

Plaintiff has not disputed that he was also reminded by
Kim-Moe that he did not have to retire and could instead proceed
with the hearing.

Order at 17, ECF No. 75.

He contends,

however, that “the company put me in a situation where if I chose
to attend the hearing and lost (as I was told I would before any
witness testified or document was received), I would [be]
unemployed with a sexual harassment on my record.”

He also cites

concerns that he would have had “no way to visit my daughter” if
he were terminated, because flight benefits were not guaranteed
to terminated (versus retired) employees.

Debeikes Decl. ¶¶ 7-8,

ECF No. 105-1.
After Plaintiff retired, he was no longer a member of
AFA.

Because AFA may only file grievances on behalf of members,

it could not file grievances on Debeikes’ behalf from his
retirement date forward.

Order at 16 n.10, ECF No. 75.

Debeikes’ declaration testimony is that he was “unaware that
signing the paperwork released AFA from any obligation to
represent me.”

Id. (citing Debeikes Decl. ¶ 19, ECF No. 70-1).

Regardless, uncontroverted declaration testimony submitted by AFA
confirms that, to the recollection of AFA’s employees and based
upon a review of the union’s voicemail and email records,
Debeikes never communicated to AFA any “desire to have a
grievance filed” related to “Hawaiian Airlines having
‘predetermined’ prior to the disciplinary hearing that it would

20

terminate his employment.”

Henton Decl. ¶¶ 27-29, ECF No. 95-1;

Akau Decl. ¶ 3, ECF No. 95-2.13/
On or about May 30, 2013, Plaintiff asked Hawaiian
Airlines whether he could rescind his retirement.
ECF No. 75.

Order at 18,

Plaintiff initially was told by a Hawaiian Airlines

employee that he could “un-retire,” although the company would
move forward with his disciplinary hearing.

However, Hawaiian

Airlines ultimately conveyed to AFA that it was unwilling to
rescind Plaintiff’s retirement, which in turn was conveyed to
Debeikes.

Id.
As noted above, AFA’s class-based MEC grievance

regarding Hawaiian Airlines’ production of investigation
documents had been filed on April 12, 2015, and it remained
pending at the time of Plaintiff’s retirement.
ECF No. 135.

See Grievance,

Henton’s declaration testimony is that Hawaiian

Airlines and AFA routinely extend deadlines applicable to
grievance and arbitration proceedings, which take varying amounts

13/

As discussed below, this point was further addressed in
Henton’s Supplemental Declaration in the instant briefing, in
response to Plaintiff’s declaration. Henton denies that
Plaintiff informed him of Kim-Moe’s comment at his retirement
paperwork signing or expressed concerns regarding his deprivation
of a fair hearing. Henton also states that he did not receive
any telephone calls from Plaintiff or access his own AFA-issued
cellular telephone while on vacation from May 22, 2013-June 7,
2013. Supplemental Declaration of Scott Henton (“Henton Supp.
Decl.”) ¶¶ 4-6, ECF No. 108-2. The Court reiterates that Akau
and Trumble remained available to discuss Plaintiff’s situation,
apparently up to and including the date of his retirement.
21

of time to reach resolution.
1.

Henton Decl. ¶¶ 19-21, ECF No. 95-

In this instance, the SBA issued its written Opinion and

Award on July 15, 2015, over two years after the Grievance
initially was filed.

See Opinion and Award, ECF No. 132.

As set forth in that Opinion and Award, the SBA
concluded that “the Company violated Section 23.E.10.c with
regard to the cases of Doe I and Doe II” (Doe I evidently being
Plaintiff).

However, the Opinion and Award limited its remedy to

ordering that “[t]he Company shall cease and desist from such
violations in future cases.”

Id. at 20.

It observed that

neither “Doe I” nor “Doe II” filed disciplinary grievances and
that “Doe I” (Plaintiff) had already retired.

Id. at 6.

STANDARD
As noted above, the Court will resolve the instant
motions by considering documents outside the pleadings.

The

standard of review applicable to summary judgment motions under
Rule 56 therefore applies.

Fed. R. Civ. P. 12(d).

A party is entitled to summary judgment on any claim or
defense if it can be shown “that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.’”

Maxwell v. Cnty. of San Diego, 697 F.3d 941,

947 (9th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).

A party

asserting that a fact cannot be or is genuinely disputed must
support the assertion by either “citing to particular parts of

22

materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”

Fed. R. Civ. P. 56(c)(1).

A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)).

Conversely, “[w]here the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.”
550 U.S. 372, 380 (2007).

Scott v. Harris,

Summary judgment will be granted

against a party that fails to demonstrate facts sufficient to
establish “an element essential to that party’s case and on which
that party will bear the burden of proof at trial.”

Parth v.

Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir.
2010) (citation omitted).
The movant has the burden of persuading the court as to
the absence of a genuine issue of material fact.
596 F.3d 583, 587 (9th Cir. 2010).

Avalos v. Baca,

If the movant satisfies its

burden, the nonmovant must present evidence of a “genuine issue
for trial,” Fed. R. Civ. P. 56(e), that is “significantly

23

probative or more than merely colorable,”14/ LVRC Holdings LLC v.
Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.”

Scott, 550 U.S. at 378.

The court may not, however,

weigh conflicting evidence or assess credibility.
545 F.3d 702, 707 (9th Cir. 2008).

In re Barboza,

If “reasonable minds could

differ as to the import of the evidence,” summary judgment will
be denied.

Anderson, 477 U.S. at 250–51.
DISCUSSION
As explained in the Court’s prior Order, the Railway

Labor Act (“RLA”) applies to the airline industry and creates a
mandatory arbitration scheme to handle disputes “growing out of
grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working conditions”

14/

The Ninth Circuit has explained that “[l]egal memoranda
and oral argument, in the summary-judgment context, are not
evidence, and do not create issues of fact capable of defeating
an otherwise valid motion for summary judgment.” Flaherty v.
Warehousemen, Garage and Service Station Emp. Local Union No.
334, 574 F.2d 484, 486 n.2 (9th Cir. 1978), see also Barcamerica
Intern. USA Trust v. Tyfield Importers, 289 F.3d 589, 593 n.4
(9th Cir. 2002). Allegations in the plaintiff’s complaint also
“do not create an issue against a motion for summary judgment
supported by affidavit,” Flaherty, 574 F.2d at 486 n.2, and a
“conclusory, self-serving affidavit” that lacks detailed facts
and supporting evidence may not create a genuine issue of
material fact, F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th
Cir. 2010).
24

in covered industries.

45 U.S.C. §§ 153, 181.

The statute’s

reservation of arbitral jurisdiction in such cases was designed
to promote stability in labor relations and ensure the “prompt
and orderly settlement” of claims outside the courts.

Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (citing 45
U.S.C. § 151(a)).
Nonetheless, where an employee in a covered industry
contends both that (1) her employer breached a CBA, and (2) her
union breached its DFR in regard to challenging the employer’s
CBA violation, she may bring both of her claims in federal court.
This is referred to as a “hybrid § 301/fair representation”
claim.

DelCostello, 462 U.S. at 165.

Debeikes’ claim in this case.

Such is the nature of

See generally Am. Compl., ECF No.

80.
The substantive law of hybrid § 301/fair representation
claims demands that a plaintiff prove both the union’s breach of
the DFR and the employer’s breach of the CBA.

See Bliesner v.

Commc’n Workers of Am.,464 F.3d 910, 913-14 (9th Cir. 2006);
Hadley v. Hawaii Gov’t Emps. Ass’n, * 2 (D. Haw. Mar. 13, 2006).
The Ninth Circuit has clarified that a plaintiff must demonstrate
each such breach.

If she does not, her hybrid § 301/fair

representation claim is nonviable in its entirety.

See Bliesner,

464 F.3d at 913 (affirming summary judgment without reaching the
issue of the union’s DFR violation, because the plaintiff-

25

employee failed to show that her employer breached the CBA).
Accordingly, this Court may not adjudicate a claim against either
Defendant individually if Debeikes’ claim against the other
Defendant is not also viable.15/
In his Amended Complaint, Debeikes’ hybrid § 301/fair
representation claim encompasses the following allegations: “(1)
that the AFA failed to even consider a meritorious 23(C)
grievance and (2) that Hawaiian predetermined to terminate
Debeikes prior to any hearing, i.e. before documentary evidence
or witnesses testified; and Debeikes was forced to resign as a
result.”

Opp. to AFA’s MTD/MSJ at 2-3, ECF No. 103; Opp. to

Hawaiian Airlines’ MTD/MSJ at 2, ECF No. 102; see also Am. Compl.
¶¶ 8-14, ECF No. 80.

The Court examines Plaintiff’s claims in

turn and finds that summary judgment is appropriate as to the
claims against both Defendants.

See infra Sections II-III.

15/

As a

Additional jurisdictional limitations would prevent the
Court from adjudicating Plaintiff’s claim against Hawaiian
Airlines, standing alone. Federal courts exercise original
subject matter jurisdiction over breach of DFR claims pursuant to
the National Labor Relations Act. See DelCostello, 462 U.S. at
164 (citing Vaca v. Sipes, 386 U.S. 171, 177 (1967)); Nosie v.
Ass’n of Flight Attendants-CWA, AFL-CIO, 722 F. Supp. 2d 1181,
1196 (D. Haw. 2010) (citations omitted). Breach of CBA claims,
however, are heard on the basis of supplemental jurisdiction
related to the “inextricably interdependent” DFR claims presented
in hybrid § 301/fair representation cases. DelCostello, 462 U.S.
at 164-65; see also Bautista v. Pan Am. World Airlines, Inc., 828
F.2d 546, 551-52 (9th Cir. 1987). Thus, as a jurisdictional
matter, this Court may hear Debeikes’ breach of CBA claim against
Hawaiian Airlines only if he also presents a triable claim
against AFA. See Bautista, 828 F.2d at 552.
26

preliminary matter, however, the Court briefly addresses AFA’s
class-based MEC grievance and the SBA’s July 15, 2015 Opinion and
Award.

The Court finds that the Opinion and Award need not

affect the Court’s resolution of the instant motions, for the
reasons explained below.
I.

The Opinion and Award on AFA’s Class-Based MEC
Grievance Does Not Affect the Instant Order

The Court concludes that it need not consider the SBA’s
Opinion and Award in resolving the instant motions and need not
delay such resolution on the basis of any continuing appeal
proceedings related thereto.
AFA filed its class-based MEC Grievance (on behalf of
its full membership) on April 12, 2013, as set forth above.

That

grievance, of which Plaintiff was not informed, related to “EEOC
Investigation Documents” and challenged Hawaiian Airlines’
“refusal to provide documentation” during the company’s
“confidential ‘EEOC investigation[s].’”

The grievance requested

that Hawaiian Airlines “cease and desist refusal to provide
documentation in any and all Company investigations” and
“[r]everse the discipline and reinstate and make whole any and
all affected flight attendants that were disciplined or
discharged based upon [these] investigations.”

Grievance, ECF

No. 135.
The Opinion and Award, issued over two years later on
July 15, 2015, concluded that “the Company violated Section
27

23.E.10.c. [of the CBA] with regard to the cases of Doe I and Doe
II,” with “Doe I” evidently being Plaintiff.

The Board ordered

that Hawaiian Airlines “cease and desist from such violations in
future cases.”

Opinion and Award at 20, ECF No. 132.

The Board

did not, however, order any reinstatement or reversal of
discipline for any employees.

To the contrary, the Opinion and

Award specifically notes that neither “Doe I” nor “Doe II” filed
individual disciplinary grievances, and that “Doe I” (Debeikes)
had already retired.

Id. at 6.16/

By its own terms, the Opinion and Award did not create
any relief for Plaintiff as a retired member of AFA.

Plaintiff

is therefore incorrect to suggest that the Opinion and Award
itself “entitl[es] Plaintiff to relief as to reinstatement and
back pay.”

Plf. Matthew J. Debeikes’ Supp. Br. Regarding the

Impact of the Opinion of the Arbitrator at 4, ECF No. 138.
Rather, the Opinion and Award limited its remedy to a prospective
cease and desist order applicable during future employee
investigations.

As AFA and Hawaiian Airlines emphasize in their

supplemental briefs, this relief has no bearing on the Court’s

16/

The Court observes that, even if Debeikes had been
disciplined instead of retiring, there is no guarantee that the
Opinion and Award would have awarded him retrospective relief
such as reinstatement or backpay. By the time AFA filed its MEC
grievance on April 12, 2013, Plaintiff had already voluntarily
attended Hawaiian Airlines’ April 5, 2013 investigatory meeting
and admitted to the substance of the harassment allegations
against him.
28

decision as to whether an individual remedy may be available for
Plaintiff, as a retiree, on his hybrid § 301/fair representation
claim against AFA and Hawaiian Airlines.
The Court observes that AFA’s underlying Grievance also
did not address the merits of Plaintiff’s current claim: that
Hawaiian Airlines “predetermined to terminate” and/or
“constructively discharged” him in violation of the CBA’s alleged
“due process” guarantees.

That allegation is distinct from the

claim presented in AFA’s MEC Grievance: that Hawaiian Airlines
withheld investigatory documents in violation of the CBA’s
Section 23.E.10.c.

Although the SBA’s findings may help inform

the Court’s understanding of this case, they do not resolve the
specific claims currently pending before the Court.
The Court also need not delay its resolution of
Defendants’ MTD/MSJs pending any continuing appeal proceedings
related to the Opinion and Award.

Hawaiian Airlines has filed a

petition to vacate the Opinion and Award, which is currently
pending before Magistrate Judge Kurren.

See Hawaiian Airlines,

Inc. v. Ass’n of Flight Attendants, Civ. No. 13-00369 BMK.

As

AFA points out in its supplemental brief, arbitration decisions
are presumptively final under the CBA’s § 24.D.2 and subject only
to narrow judicial review.

See AFA’s Supp. Br. Responding to

Minute Order Filed Sept. 8, 2015 at 3, ECF No. 136.

More

significantly, the fact remains that the Opinion and Award does

29

not create an individual remedy for Plaintiff or affect his
rights in this case.

There is, accordingly, no reason to delay

resolution of the instant motions pending Hawaiian Airlines’
appeal of the Opinion and Award.
Lastly, the Court notes that the Opinion and Award
indicates that the SBA “retains jurisdiction over this case” for
one year “should any dispute arise about the application of the
cease and desist order and the application of Section 23.E.10.c
as described in this Opinion.”
132.

Opinion and Award at 21, ECF No.

This narrow retention of jurisdiction as to the

implementation of the SBA’s order does not divest the Court of
jurisdiction to resolve Plaintiff’s independent hybrid § 301/fair
representation claim.
II.

Plaintiff’s Claim against Hawaiian Airlines Is Not
Viable

In his Amended Complaint, Debeikes claims that Hawaiian
Airlines “constructively discharged Plaintiff without ‘just
cause’” by “predetermin[ing] to Terminate Plaintiff in violation
of the CBA’s due process requirement of a fair hearing in
accordance with the CBA’s provisions set forth in Article 23.”
Am. Compl. ¶ 13, ECF No. 80.

In support, Plaintiff’s Amended

Complaint states that Kim-Moe informed Plaintiff at his
retirement paperwork signing of May 29, 2013 that “he would be
terminated if he went to [the] hearing” scheduled for the next
day.

Id.

According to Debeikes’ declaration testimony, Kim30

Moe’s statement was made in front of his direct supervisor,
Price, who “never corrected Gail Kim-Moe that termination was
imminent.”

Debeikes Decl. ¶ 2, ECF Nos. 104-1, 105-1.17/
Debeikes contends that this “predetermined” termination

violated what he refers to as “the CBA’s due process requirement
of a fair hearing.”

Am. Compl. ¶ 13, ECF No. 80.

He evidently

views this due process/fair hearing requirement as implied by the
CBA’s “express[] provi[sion] that all cases of discharge, for
whatever cause, shall be subject to the grievance procedure” and
its establishment of procedures for “the presentation,
negotiation, settlement or other disposition of grievances.”

Id.

His position is that “Hawaiian determining to terminate Plaintiff
prior to any witness testifying or documents being presented was
coercive,” and that a “jury question exists as to the
voluntariness of Plaintiff’s resignation as Hawaiian already told
Plaintiff he would be terminated if he went to hearing.”

Opp. to

Hawaiian Airlines’ MTD/MSJ at 4, ECF No. 102.
On these allegations, the Court concludes that it

17/

As noted above, Plaintiff’s description of this event in
his Amended Complaint differs from his description in his initial
declaration in this case. In that declaration, Plaintiff stated
that he had asked Kim-Moe: “‘if I would have gone to the Hearing
would I have been terminated?’ She said [‘]yes.’” Debeikes Decl.
¶ 19, ECF No. 70-1. Such phrasing would seem to suggest that
Plaintiff had already submitted his retirement paperwork at the
point when Kim-Moe’s statement was made. Nonetheless, for
present purposes, the Court will assume that Kim-Moe’s comment
may have just preceded Plaintiff’s retirement.
31

continues to lack jurisdiction to hear Debeikes’ breach of CBA
claim against Hawaiian Airlines due to his failure to exhaust
contractual remedies.

In addition, to the extent that Plaintiff

might intend his references to “constructive discharge” to
present an independent tort claim, such claim is again preempted
by his breach of CBA claim.

Even if it were not preempted, the

Court finds that such a claim would lack merit.
a.

The Court Lacks Jurisdiction to Hear
Debeikes’ Breach of CBA Claim Due to His
Failure to Exhaust Contractual Remedies

The Court finds that it lacks subject matter
jurisdiction to hear Debeikes’ breach of CBA claim where he did
not first exhaust contractual remedies available under the CBA.
The Court reiterates this legal requirement, as set forth in its
prior Order:
[B]efore suing for an employer’s breach of
a CBA in a hybrid § 301/fair representation
case, an employee must first have exhausted
contractual grievance procedures. See, e.g.,
Jackson v. S. California Gas Co., 881 F.2d 638,
646 (9th Cir. 1989). Courts are to order
resort to such grievance procedures “without
dealing with the merits of the dispute” over
the contract terms. United Paperworkers
Int’l Untion, AFL-CIO, et al. v. Misco, Inc.,
484 U.S. 29, 37 (1987); Soone v. Kyo-Ya Co.,
Ltd., 353 F. Supp. 2d 1107, 1115 (D. Haw. 2005).
That contractual grievance mechanisms should
govern CBA interpretation disputes in the first
instance is consistent with legislative policy
favoring the resolution of labor disagreements
outside the courts. See Soone, 353 F. Supp. 2d
at 1115. The Ninth Circuit has also clarified
that a plaintiff’s failure to exhaust
contractual grievance procedures bars a breach
32

of CBA claim against his employer as well as a
breach of DFR claim against his union. Carr
[v. Pac. Maritime Ass’n], 904 F.2d [1313, 1317
(9th Cir. 1990)].
Order at 31, ECF No. 75.
Here, as Plaintiff admits, a comprehensive CBA between
AFA and Hawaiian Airlines covered the terms and conditions of
employment for flight attendants “during the entire period
involved here.”

Am. Compl. ¶ 6, ECF No. 80.

The CBA provides

for grievance procedures related to both disciplinary actions
(including discharge) and non-disciplinary actions.

See AFA’s

CSF Ex. 1-2, ECF Nos. 95-3, 95-4; Hawaiian Airlines’ CSF Ex. 1,
ECF No. 86-2.

Plaintiff admits in particular that “all cases of

discharge, for whatever cause, shall be subject to the grievance
procedure.”

Am. Compl. ¶ 13, ECF No. 80.

However, no grievance was filed with respect to
Plaintiff’s alleged “predetermined termination.”

Id.

Debeikes

claims that this is so because AFA “failed to investigate and
process” such a grievance, even though AFA supposedly was “aware
that Defendant Employer predetermined to terminate Plaintiff in
violation of the CBA’s due process requirement of a fair
hearing.”

Id.; see also Opp. to AFA’s MTD/MSJ at 5, ECF No. 103

(“AFA never intervened or pursued a grievance regarding the
denial of a fair disciplinary hearing.”).
Three exceptions exist to excuse a plaintiff’s failure
to exhaust contractual remedies prior to filing a breach of CBA
33

claim, where: (1) the employee’s use of the grievance procedure
would be “futile,” (2) the employer’s conduct repudiates
contractual remedies, or (3) the union’s actions breach its DFR
in handling the grievance.

See Vaca, 386 U.S. at 185; Glover v.

St. Louis-San Francisco R.R. Co., 393 U.S. 324, 330 (1969); see
also Carr, 904 F.2d at 1317-21 (examining and rejecting
Plaintiff’s invocation of all three exceptions).

As Hawaiian

Airlines points out, Debeikes’ Amended Complaint does not
actually make any allegation that he attempted to pursue CBA
remedies with respect to his “predetermined termination” or that
any of the foregoing exhaustion exceptions applies to his case.
However, the Court independently concludes that no such exception
is applicable.
First, Plaintiff has not shown that resort to the CBA
grievance procedures would be “futile.”

The fact that grievance

procedures are administered by union and company representatives
does not by itself render resort to such processes futile, nor
does the fact that administrators are “likely to rule against the
[grievant] on the merits.”

Addington v. US Airline Pilots Ass’n,

588 F. Supp. 2d 1051, 1063-64 (D. Ariz. 2008) (citations
omitted).

Futility is also generally inapplicable where “the

plaintiff never puts his futility theory to the test by filing a
protest.”

Hawaii Teamsters & Allied Workers, Local 996, IBT v.

City Exp., Inc., 751 F. Supp. 1426, 1432 (D. Haw. 1990) (citing

34

LeBoutillier v. Air Line Pilots Ass’n, 778 F.2d 883 (D.C. Cir.
1985)); see also Hines v. Anchor Motor Freight, 424 U.S. 554, 563
(1990) (a plaintiff may not “sidestep the grievance machinery”
under the CBA before he has attempted to use it).
Here, Debeikes did not attempt to grieve his alleged
“predetermined termination,” either before or after the scheduled
disciplinary hearing.
lawsuit.

Instead, he retired and filed the instant

He argues that “the Hawaiian tribunal would have been

biased against him, i.e., predetermined to terminate him” at his
disciplinary hearing.
ECF No. 102.

Opp. to Hawaiian Airlines’ MTD/MSJ at 4,

In essence, he suggests that it would have been

“futile” to attend his disciplinary hearing.

But even assuming

arguendo that this was the case, Plaintiff has not offered
evidence that it would have been “futile” to initiate a grievance
and arbitration in response to the company’s actions.

Plaintiff

never tested the futility of the CBA’s grievance and arbitration
procedures, because he simply did not use them.

City Exp., 751

F. Supp. at 1432.
As the Court noted in its prior Order, an employee’s
choice to retire prior to invoking CBA grievance procedures also
does not make resort to such processes “futile.”

Order at 35,

n.24, ECF No. 75 (citing Thovson v. Behavioral Health Resources,
3:12-cv-05424, 2012 WL 4514431 * 3-5 (W.D. Wash. Oct. 1, 2012);
Hope v. Cont’l Baking Co., 729 F. Supp. 1556, 1559 (E.D. Va.

35

1990), Lucas v. Legal Aid Soc’y, No. CV-88-1670, 1989 WL 15778 *
2 (E.D.N.Y. Feb. 16, 1989)).

As the Lucas court observed,

“permitting retired employees to circumvent agreed upon grievance
procedures could, in effect, create a class of ‘preferred
claimants’ who, at their own convenience, could bypass those
provisions created precisely for resolution of the claims they
would be raising.”

Lucas, 1989 WL 15778 at * 2.

Second, Plaintiff suggests but fails to demonstrate
that Hawaiian Airlines “repudiated” the CBA’s grievance
procedures.
102.

Opp. to Hawaiian Airlines’ MTD/MSJ at 7, ECF No.

His position is that Hawaiian Airlines would not have

offered him “a fair hearing” as to the discipline he was to be
issued.

Am. Compl. ¶ 13, ECF No. 80.

But this is not evidence

that the company would have refused to participate in a grievance
and arbitration as to that discipline.

Exhaustion of contractual

remedies is excused for repudiation “only if the employer
repudiates the specific grievance procedures provided for in the
CBA,” such as when it expressly takes the position that “the
grievance procedures d[o] not govern the dispute.”

Sidhu v.

Flecto Co., Inc., 279 F.3d 896, 899 (9th Cir. 2002).

Plaintiff

offers no such evidence here.
Third, the Court finds that Plaintiff has not raised a
genuine issue of material fact as to whether AFA breached its DFR
by “fail[ing] to investigate or process any grievance regarding

36

the predetermined termination.”

Am. Compl.

¶ 13, ECF No. 80.

The Court observes that the standard of review for such union
action (or inaction) is high: courts generally must accord union
decisions “substantial deference,” recognizing that the union
“must balance many collective and individual interests when it
decides whether and to what extent to pursue a particular
grievance.”

Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270,

1273 (9th Cir. 1986) (citation omitted).
Ministerial or procedural union actions constitute DFR
breaches where they are arbitrary, discriminatory, or in bad
faith, but an exercise of the union’s judgment constitutes a DFR
breach only where it is shown to be discriminatory or in bad
faith.

Burkevich v. Air Line Pilots Ass’n, Int’l, 894 F.2d 346,

349 (9th Cir. 1990); Nosie v. Ass’n of Flight Attendants-CWA,
AFL-CIO, 722 F. Supp. 2d 1181, 1196 (D. Haw. 2010).

The

grievance process need not be error-free, and a plaintiff
generally cannot recover for a union’s mere negligence.

Johnson

v. U.S. Postal Serv., 756 F.2d 1461, 1465 (9th Cir. 1985); Nosie,
722 F. Supp. 2d at 1200 (citations omitted).
The Ninth Circuit has also explained that an alleged
breach of the DFR will excuse exhaustion of contractual remedies
in only two situations: (1) where the union has the “sole power”
under the CBA to invoke the grievance process and “wrongful[ly]”
refuses to do so, or (2) where a grievant alleges a breach of the

37

DFR with regard to the negotiation of the CBA terms themselves.
Carr, 904 F.2d at 1319 (citing Vaca, 386 U.S. at 185; Williams v.
Pac. Maritime Ass’n, 617 F.2d 1321, 1328 (9th Cir. 1990)).
Plaintiff makes no allegation that AFA breached its DFR
in the course of negotiating the CBA terms.

He does suggest,

however, that AFA was “aware that Defendant Employer
predetermined to [t]erminate Plaintiff in violation of the CBA’s
due process requirement of a fair hearing” and nonetheless
“failed to investigate or process any grievance regarding the
predetermined termination.”

Am. Compl. ¶ 13, ECF No. 80; Opp. to

AFA’s MTD/MSJ at 5, ECF No. 103 (“AFA never intervened or pursued
a grievance regarding the denial of a fair disciplinary
hearing.”)
Plaintiff’s theory that AFA failed to appropriately
investigate or process this grievance is premised on Debeikes’
contention that he “notified AFA [of] the type of comments
[Hawaiian Airlines] was making to Plaintiff prior to any hearing
(predetermined termination).”
No. 103.

Opp. to AFA’s MTD/MSJ at 5, ECF

Specifically, he claims he “informed Scott Henton of

HAL’s comments to me and asked if I went to hearing and was
terminated would I be able to keep my flight benefits.”
Decl. ¶ 13, ECF Nos. 104-1, 105-1.18/

18/

Debeikes

However, the only comment

Plaintiff claims he relayed this information to Henton,
notwithstanding Trumble’s uncontested testimony that he had
(continued...)
38

of a Hawaiian Airlines employee that he identifies as having
suggested his “predetermined termination” is Kim-Moe’s alleged
statement that he “would be terminated” if he attended his
disciplinary hearing.19/

Debeikes Decl. ¶¶ 1-2, ECF Nos. 104-1,

105-1.
The Court concludes, for the reasons explained below,
that Plaintiff’s allegations do not raise a genuine issue of
material fact as to whether AFA “wrongfully” refused to invoke
any solely-held power that it had to initiate a grievance on
Plaintiff’s supposed “predetermined termination.”

Carr, 904 F.2d

at 1319.
First, it appears that AFA did not have the “sole”
power to file such a grievance on Plaintiff’s behalf under the
CBA.

According to the agreement’s express terms, “Non-

Disciplinary Grievances” under CBA § 23(C) may be brought by

18/

(...continued)
already told Plaintiff that he thought termination was likely and
advised Plaintiff regarding the consequences of termination
versus retirement as to his flight benefits. See Trumble Decl. ¶
9, ECF No. 52-2.
19/

The parties dispute whether Kim-Moe’s statement serves as
evidence of Hawaiian Airlines’ “predetermination to terminate”
him. Henton points out that Kim-Moe “was not the decisionmaker”
as to “whether and/or what disciplinary action should be issued
to Mr. Debeikes.” Instead, the “Director of Inflight or his/her
designee” would have made this decision. Henton Decl. ¶ 31, ECF
No. 95-1. However, Debeikes attests that Kim-Moe’s statement was
made in front of Price, “Senior Manager, In-Services,” who did
not contradict Kim-Moe’s statement. Debeikes Decl. ¶ 2, ECF Nos.
104-1, 105-1.
39

“[a]ny Flight Attendant or group of Flight Attendants who has a
grievance concerning any action of the Company affecting such
Flight Attendant(s).”

CBA § 23(C)(1), AFA’s CSF Ex. 1 at

HAL00406, ECF No. 95-3; Hawaiian Airlines’ CSF Ex. 1 at HAL00406,
ECF No. 86-2.

The grievance must be filed in writing but can be

signed by either “the grievant(s)” or “his/her representative.”
Id. § 23(C)(2).

This procedure is in contrast to that for class-

action MEC grievances, which can be filed only by “the MEC
President, or designee.”

Id.

§ 23(D).

At the hearing of October 22, 2015, the Court asked
counsel for AFA and Hawaiian Airlines to address the foregoing
CBA provision and whether employees may indeed file their own
grievances under CBA § 23(c).

Counsel for AFA was uncertain, but

counsel for Hawaiian Airlines indicated that this is a correct
understanding of the CBA.

Thus, assuming that Plaintiff himself

had the power to initiate a grievance on his own behalf, his
failure to exhaust contractual remedies cannot be waived under
Carr.
Second, regardless of whether Plaintiff was able to
file his own grievance under CBA § 23(c), the Court also finds in
the alternative that Plaintiff has not raised a genuine issue of
material fact as to whether AFA “wrongfully” refused to pursue a
grievance related to his supposed “predetermined termination.”
This is so for at least two reasons.

40

First, the Court finds that it is not possible to
conclude from the available evidence that AFA was even aware,
prior to Plaintiff’s retirement, that Plaintiff believed Hawaiian
Airlines “predetermined to terminate” him.

Because Plaintiff

retired before making AFA aware of this issue, he foreclosed the
union’s opportunity to initiate a grievance on such grounds.
Plaintiff’s claim that AFA breached its DFR by failing
to grieve his “predetermined termination” is premised on his
factual contention that he “informed Scott Henton of HAL’s
comments to me.”

Debeikes Decl. ¶ 13, ECF Nos. 104-1, 105-1.

Kim-Moe’s comment regarding termination – the only one that
Plaintiff identifies as having even suggested his “predetermined
termination” – was made at some point just before or during the
May 29, 2013 meeting during which he tendered his retirement
letter to Hawaiian Airlines and signed retirement paperwork.

See

id. ¶ 1; see also Order at 16, ECF No. 75.20/
It is undisputed that neither Henton nor any other AFA
representative accompanied Debeikes to his meeting with Kim-Moe.

20/

The Court notes that Hawaiian Airlines’ formal
communication to Plaintiff indicated that Hawaiian Airlines had
not decided upon any discipline, much less that it had
“predetermined to terminate” him at the May 30, 2015 disciplinary
hearing. A May 21, 2013 letter to Plaintiff from Ross Yamanuha,
Senior Manager of In-Flight Services, stated that “[t]he purpose
of the Hearing will be to determine what action, if any, will be
taken in regards to these alleged violations.” Ltr. from Ross
Yamanuha to Plf., Marn Decl. Ex. 4, ECF No. 52-8 (emphasis
added).
41

Order at 17, ECF No. 75.

Plaintiff also appears to have arrived

to the meeting with a pre-prepared retirement letter.
n.12.

See supra

As noted above, there is some uncertainty regarding the

precise order in which statements were made by Plaintiff and KimMoe on May 29, 2013.

What is certain, however, is that Plaintiff

could not have shared Kim-Moe’s comment with Henton before
retiring, and that this deprived AFA of any opportunity to grieve
Plaintiff’s alleged “predetermined termination.”
At the Court’s hearing of October 22, 2015, Plaintiff’s
counsel affirmatively stated that Plaintiff shared Kim-Moe’s
statement with Henton for the first time after May 29, 2013, by
leaving phone messages for him the following day.

Plaintiff, who

was present at the hearing, did not dispute this assertion.
In addition, Henton’s unrebutted declaration testimony
is that he was on vacation from May 22, 2013-June 7, 2013.
Henton Decl. ¶ 27, ECF No. 95-1.

Henton’s supplemental

declaration states that Debeikes’ assertion that he “informed me
of comments made by Gail Kim-Moe or any representative of
Hawaiian Airlines on or after May 29, 2013 . . . [is] not true,”
and that Henton did not receive any telephone calls from
Plaintiff or even access his own AFA-issued cellular telephone
while on vacation.

Henton Supp. Decl. ¶¶ 4-6, ECF No. 108-2.

Plaintiff does not claim to have informed Akau or
Trumble of Kim-Moe’s statement, even though he had spoken with

42

Akau and Trumble as recently as May 27-28, 2013 and it appears
that they (unlike Henton) were available on May 29, 2013.

See

Plf. Matthew J. Debeikes’ Response to Def. Hawaiian Airlines,
Inc.’s First Request for Answers to Interrogatories at 4, ECF No.
55-14.
The declaration testimony of Debeikes’ AFA
representatives is, to the contrary, that “AFA was not aware that
Hawaiian Airlines breached the CBA by predetermining to terminate
Plaintiff before the disciplinary hearing.”

Henton Decl. ¶ 9,

ECF No. 94-1; Akau Decl. ¶ 3, ECF No. 95-2.

To the recollection

of AFA’s employees and based upon a review of the union’s
voicemail and email records, Debeikes never communicated to AFA
any desire to have a “predetermined termination” grievance filed
against Hawaiian Airlines prior to his retirement.

Henton Decl.

¶¶ 27-29, ECF No. 95-1; Akau Decl. ¶ 3, ECF No. 95-2.
The Court observes that this is the first time in this
litigation that Plaintiff has claimed that he shared Kim-Moe’s
comment with Henton on any date.

He did not identify this

allegation in his verified, un-supplemented answers to
interrogatories, which requested details of: (1) “each and every
incident in which you learned information which has caused you to
believe that the AFA breached its duty of fair representation
towards you,” (2) “each statement (whether oral, written or
otherwise) made by Defendant AFA’s representatives to Plaintiff,

43

or to any other individual, regarding the allegations contained
in the Complaint,” and (3) “each and every communication you had
with any representative of the [AFA] concerning any grievance you
had against [Hawaiian Airlines].”

See Declaration of Stephanie

Marn (“Marn Decl.”) ¶¶ 6-10, ECF No. 108-1; Plf. Matthew J.
Debeikes’ Response to Def. AFA’s First Request for Answers to
Interrogatories ¶¶ 4, 7, ECF No. 108-4; Plf. Matthew J. Debeikes’
Response to Def. Hawaiian Airlines’ First Request for Answers to
Interrogatories ¶ 5, ECF No. 108-5.
Plaintiff belatedly requested leave to pursue further
discovery (specifically, deposition testimony and phone records)
regarding his communications with Henton, but that request was
denied for the reasons explained at length in the Court’s Order
Affirming the Magistrate Judge’s Order Denying Plaintiff Matthew
J. Debeikes’ Motion to Reopen Discovery, ECF No. 139.
In light of the foregoing, it is impossible to conclude
that AFA was made aware that Hawaiian Airlines allegedly
“predetermined to terminate” Plaintiff, or that Plaintiff wished
to have any related grievance filed, prior to Plaintiff’s
retirement.21/

This is significant because Debeikes was no longer

21/

AFA, in one sentence of its Reply, requests that the
Court “find that Plaintiff has submitted his declaration in bad
faith and/or is in violation of Rule 11(b) and as such, is
sanctionable.” AFA Reply at 11, ECF No. 108. It appears that
the request is premised on the idea that Plaintiff’s declaration
“contradicts” his answers to interrogatories, which did not
(continued...)
44

a member of AFA by the time he left the meeting at which KimMoe’s statement was made, and AFA may only file grievances on
behalf of members.

Order at 16 n.10, 59, ECF No. 75.

Plaintiff is correct that, where a union member
provides evidence supporting a grievance, a union may breach its
DFR where it ignores such grievance or processes it in a
“perfunctory manner.”

Vaca, 386 U.S. at 194.22/

But in the

instant case, it does not appear that AFA was informed of any
supposed “evidence” of Hawaiian Airlines’ “predetermination” to
terminate Debeikes until after he retired, if at all.

The Court

cannot conclude that a union acts in “perfunctory” manner where a
plaintiff, by retiring, forecloses the union’s practical
opportunity to initiate any action.
The Court notes that although Plaintiff has argued that

21/

(...continued)
indicate that Debeikes had spoken to Henton regarding the
company’s “predetermining to terminate” him. Id.
For the reasons discussed herein, the Court finds that it
is impossible to find that Plaintiff communicated his concerns
regarding “predetermined termination” to Henton prior to his
retirement. It therefore appears unnecessary to consider whether
Plaintiff’s declaration may be struck as a matter of sanctions.
If AFA seeks any additional relief, it must file a separate
motion. See Fed. R. Civ. P. 11(b), (c)(1)-(2).
22/

The Court observes that this does not mean a union member
is guaranteed to have the merits of a particular matter grieved
by a union. As discussed below, “whether and to what extent” it
ultimately pursues a grievance is still a matter of the union’s
judgment. Dutrisac, 749 F.2d at 1273. Such discretion may be
particularly important where, as here, an employee has already
admitted to the merits of the allegations against him.
45

he was “unaware” that his representation by AFA ended upon his
retirement, this does not change the actual scope of AFA’s duties
to him.

As discussed in the Court’s prior Order, union members

are “‘obligated to exhaust union remedies before resorting to a
court action . . . [n]ecessarily implied in this obligation is
the duty to become aware of the nature and availability of union
remedies.’”

Order at 38, ECF No. 75 (quoting Fristoe v. Reynolds

Metals Co., 615 F.2d 1209, 1214 (9th Cir. 1980) (further citation
omitted)).
Second, Plaintiff has not demonstrated that the union’s
failure to initiate a “predetermined termination” grievance (even
if AFA had such opportunity, which the Court finds it did not)
was arbitrary, discriminatory, or in bad faith, sufficient to
breach the DFR.

The burden of such a showing is significant.

To

establish “bad faith,” Plaintiff must introduce “substantial
evidence of fraud, deceitful action, or dishonest conduct” on the
part of AFA.

Nosie, 722 F. Supp. 2d at 1200.

To be arbitrary,

the union’s conduct, considered “in light of the factual and
legal landscape” in which it occurred, must be “fairly
characterized as so far outside of a range of reasonableness that
it is wholly irrational.”

Air Line Pilots Ass’n, Int’l v.

O’Neill, 499 U.S. 65, 66 (1991).

To show discrimination,

Plaintiff must demonstrate “substantial evidence of
discrimination that is intentional, severe, and unrelated to

46

legitimate union objectives.”

Nosie, 722 F. Supp. 2d at 1200.

Plaintiff has not demonstrated bad faith,
arbitrariness, or discriminatory animus here.

AFA

representatives have submitted uncontroverted declaration
testimony that, had Debeikes attended his disciplinary hearing
and either been deprived of a fair hearing or felt “dissatisfied
with the discipline he was issued,” AFA was “willing to file a
grievance and take it to arbitration.”

Henton Decl. ¶ 32, ECF

No. 95-2; Akau Decl. ¶ 4, ECF No. 95-2.23/

This is not,

therefore, a case in which a union simply refused to file a
complainant’s grievance at all.
With respect to AFA’s grievance-handling strategy,
there is no indication that Debeikes was treated differently from
any other flight attendants.

And even assuming that AFA was

aware of Hawaiian Airlines’ “predetermination to terminate”
Plaintiff and his desire to file a grievance thereon, Debeikes
has not shown that a union decision to grieve that

23/

The same was communicated to Plaintiff before his
retirement. Akau’s uncontested declaration testimony is that he
spoke to Plaintiff by telephone on May 24, 2013 regarding the
upcoming disciplinary hearing and explained that “if [Plaintiff]
was not satisfied with the Company’s decision, a “grievance could
be filed, which could culminate in arbitration, and the decision
of the arbitrator was final.” Akau Decl. ¶ 20, ECF No. 52-3.
Trumble has also attested that he told Plaintiff before the
April 5, 2013 investigatory meeting that “we could review the
documents and witness statements prior to his making any
statements on the record, if he would just wait until HAL took
disciplinary action against him, if at all.” Trumble Decl. ¶ 10,
ECF No. 72-1.
47

predetermination after (rather than before) his disciplinary
hearing was arbitrary or in bad faith.24/

The Court is obligated

to extend the union’s decisionmaking “substantial deference,”
recognizing that the union “must balance many collective and
individual interests when it decides whether and to what extent
to pursue a particular grievance.”

Dutrisac, 749 F.2d at 1273.

The Court observes that there is also a difference
between the union, on the one hand, knowing that Hawaiian
Airlines “predetermined to terminate” Plaintiff in a violation of
due process and, on the other, simply being aware that
termination was likely.

Trumble had evidently provided the same

opinion to Debeikes prior to his retirement.
No. 75.

Order at 16, ECF

Nothing about this advice appears to have been

arbitrary, discriminatory, or reflective of bad faith.

Debeikes

had already admitted to allegations of sexual harassment at his
April 5, 2013 investigatory interview, and Hawaiian Airlines
formally concluded that Plaintiff had violated the company’s
Policy and House Rules regarding sexual harassment and
unprofessional conduct.

Those policies provide that discipline

for their violation may include discharge.

Id. at 11, 15, ECF

No. 75.

24/

It seems evident, for example, that such a grievance may
have had stronger prospects for success if it were filed after an
actual disciplinary decision had issued (rather than beforehand,
premised on a theoretical “predetermination to terminate”
Plaintiff at a future hearing).
48

In light of the foregoing, the Court is unable to
conclude that AFA had the “sole” power to invoke the CBA’s
grievance procedures or that it “wrongfully” refused to do so
related to Debeikes’ “predetermined termination.”
at 1319.

Carr, 904 F.2d

Because Plaintiff retired before exhausting contractual

remedies and has raised no genuine issue of material fact as to
the applicability of an exception to the requirement that he do
so, the Court is without jurisdiction to adjudicate his breach of
CBA claim.

The Court therefore GRANTS summary judgment in favor

of Defendants with respect to whether Defendant Hawaiian Airlines
breached the CBA.25/
b.

Any Separate “Constructive Discharge” Claim
Suggested in Plaintiff’s Amended Complaint Is
Preempted and Unmeritorious

It is somewhat unclear whether Plaintiff intends in the
Amended Complaint to invoke any independent cause of action
involving “constructive discharge” separate from his breach of
CBA claim.

The Amended Complaint itself indicates that this is

not the case.

Rather, Plaintiff claims he was injured “[a]s a

result of Plaintiff’s [constructive] discharge by Defendant
employer, in violation of plaintiff’s rights under the collective
25/

Consistent with the Ninth Circuit’s ruling in Bliesner,
464 F.3d at 913-14, this result mandates judgment in favor of
Defendants as to Plaintiff’s hybrid § 301/fair representation
claim against both Hawaiian Airlines and AFA. Nonetheless, as an
alternative basis for its ruling, the Court reviews Plaintiff’s
claims related to “constructive discharge” and breach of DFR
below.
49

bargaining agreement.”

Am. Compl. ¶ 14, ECF No. 80.

Put

differently, Debeikes argues that Hawaiian Airlines breached the
CBA’s supposed “due process requirement of a fair hearing” when
it “predetermined to Terminate” (i.e., constructively discharged)
him.26/

Id. ¶¶ 13.

The situation is thus distinct from that

presented by Plaintiff’s original Complaint, which appeared more
clearly to suggest separate claims related to breach of CBA and
“constructive discharge” against Hawaiian Airlines.

See Order at

25-26, ECF No. 75.
For the sake of clarity, however, the Court concludes
that if the Amended Complaint intended to suggest any independent
claim premised on “constructive discharge,” it would be preempted
by Plaintiff’s breach of CBA claim.27/

Even if it were not

preempted, the Court would not find it meritorious based on the

26/

Hawaiian Airlines reads the Amended Complaint this way as
well: “[T]he First Amended Complaint does not plead any state law
claim for constructive discharge. Instead, Plaintiff has
attempted to shoehorn his claim of constructive discharge into
his hybrid breach of CBA/duty of fair representation claim by
alleging that Hawaiian’s predetermination to terminate him
violated the CBA Section 23's due process requirements.” Mem. in
Support of Hawaiian Airlines’ MTD/MSJ at 19, ECF No. 85.
27/

To the extent that any such “constructive discharge”
claim may be premised on Hawaii law, the Court further clarifies
that “constructive discharge” does not appear to be a stand-alone
cause of action. A plaintiff claiming the elements of
“constructive discharge” must do so in furtherance of another
cause of action, such as “wrongful termination,” because
constructive discharge is “not a separate cause of action in and
of itself.” See Practice Note, Hawaii Model Civil Jury
Instruction No. 16.7.
50

factual allegations in the Amended Complaint.

Accordingly, the

Court GRANTS summary judgment in favor of Defendants as to any
independent claim premised on “constructive discharge” that may
be suggested in Plaintiff’s Amended Complaint.
i.

Plaintiff’s Claim Premised on
“Constructive Discharge,” If Any, Is
Preempted by His Breach of CBA Claim

As the Court explained in its prior Order, a
constructive discharge claim involving the parties’ dispute over
the CBA’s terms and Hawaiian Airlines’ obligations thereunder is
preempted by Plaintiff’s hybrid § 301/fair representation cause
of action.

Order at 27-28, ECF No. 75 (citing Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 220 (1995); Evangelista v.
Inlandboatmen’s Union of the Pacific, 777 F.2d 1390, 1401 (9th
Cir. 1985); Carter v. Smith Food King, 765 F.2d 916, 921 (9th
Cir. 1985)).

To the extent that Plaintiff intends to state any

separate claim premised on “constructive discharge” in the
Amended Complaint, it is again preempted by his breach of CBA
claim.
The Ninth Circuit has explained that when the
resolution of independent claims are “substantially dependent
upon an interpretation of the terms of a labor contract, the
claim must either be treated as a section 301 claim or dismissed
as preempted.”

Evangelista, 777 F.2d at 1400 (finding wrongful

discharge claim preempted where it was premised on whether CBA

51

authorized plaintiff’s reduction in seniority when she accepted
other work during leave of absence).

Courts examining this issue

look to whether an independent claim is premised on “the same
acts and conduct which formed the basis of [plaintiff’s] section
301/breach of duty claims.”

Carter, 765 F.2d at 921.

Hawaiian Airlines argues that Plaintiff’s “present
claim of constructive discharge is equally dependent on the
interpretation of the CBA as the prior one asserted in the
original Complaint.”

Mem. in Support of Hawaiian Airlines’

MTD/MSJ at 19, ECF No. 85-1.

The Court agrees.

Here, Debeikes

claims that “Plaintiff’s [constructive] discharge by Defendant
employer” is exactly what “violat[ed] [] plaintiff’s rights under
the collective bargaining agreement.”
80.

Am. Compl. ¶ 14, ECF No.

The viability of Plaintiff’s “constructive discharge” theory

is thus entirely dependent on the scope of the CBA’s alleged “due
process requirement of a fair hearing” and whether Hawaiian
Airlines violated it by “predetermining to terminate” Debeikes
before his disciplinary hearing.

Id. ¶ 13.

As the Court observed previously, if Plaintiff were
arguing “constructive discharge” on grounds not involving the
company’s interpretation of its obligations under the CBA, it
would “not necessarily” be preempted.28/

28/

Order at 28 n.20, ECF

This statement did not mean, of course, that any other
“constructive discharge” theory offered by Plaintiff would be
(continued...)
52

No. 80.

For example, a claim might not be preempted if Hawaiian

Airlines “made pre-employment representations to [him] concerning
whether [he] would be an employee at will or whether [he] could
be discharged only for good cause.”

Stratoti v. Kroger Co., 184

F. Supp. 2d 718, 722 (S.D. Ohio 2002).

A claim might also be

viable if it were premised on “rights and duties” owed to
Plaintiff under a distinct legal obligation, such as state human
rights law, rather than a supposed due process provision of the
CBA.

See Brosius v. Verizon Commc’ns, Inc., Civ. No. 1:11-cv-38,

2011 WL 3269677 * 4 (N.D.W.V. July 29, 2011) (plaintiff’s
constructive discharge claim was not preempted by federal labor
law where it was premised on violations of the West Virginia
Human Rights Act and would not require consideration of the CBA).
But where, as here, Plaintiff’s “right not to be
discharged,” if any, “would depend upon the rights granted to
[him] by the collective bargaining [agreement],” an independent
claim related to constructive discharge is preempted.

Stratoti,

184 F. Supp. 2d at 722; see also Andrews v. Louisville & N.R.
Co., 406 U.S. 320, 324 (1972) (where “the only source of

28/

(...continued)
viable. Plaintiff is incorrect to argue simply that “Plaintiff
pled a constructive discharge claim on different grounds not
involving the company’s interpretation of the CBA, so it should
not be preempted by Plaintiff’s hybrid [Section] 301 fair
representation claim.” Opp. to Hawaiian Airlines’ MTD/MSJ at 3,
ECF No. 102. As discussed above, his current “constructive
discharge” theory continues to hinge on an interpretation of the
CBA.
53

petitioner’s right not to be discharged, and therefore to treat
an alleged discharge as a ‘wrongful’ one that entitles him to
damages, is the collective-bargaining agreement,” a plaintiff’s
“characeriz[ation of] his claim as one for ‘wrongful discharge’
does not save it from the [Railway Labor Act’s] mandatory
provisions for the processing of grievances”).
ii.

Even If It Were Not Preempted,
Plaintiff’s “Constructive Discharge”
Argument Is Unavailing

As explained above, the Amended Complaint – in contrast
to Plaintiff’s original complaint – does not actually appear to
suggest any theory of “constructive discharge” separate from
Plaintiff’s breach of CBA claim.

Even if it intended to do so,

any separate claim involving “constructive discharge” would be
preempted by Debeikes’ breach of CBA claim (which the Court has
found it lacks jurisdiction to hear).
Nonetheless, as a further alternative basis for its
ruling, the Court finds that Plaintiff’s “constructive discharge”
argument in the Amended Complaint lacks merit.

As discussed

above, Plaintiff suggests that he was “constructively discharged”
without “just cause” as a result of Hawaiian Airlines’
“predetermin[ation] to Terminate Plaintiff in violation of the
CBA’s due process requirement of a fair hearing.”
¶ 13, ECF No. 80.

Am. Compl.

Even if such a requirement is implied by the

54

CBA, and even if “predetermined termination” would violate it,29/
the Court reiterates that “[r]etirement decisions are presumed to
be voluntary,” and that this presumption “generally is overcome
only when a plaintiff shows that his retirement was the product
of the employer’s deception or coercion.”

Order at 28, ECF No.

75 (citing Morris v. McHugh, 997 F. Supp. 2d 1144, 1164 (D. Haw.
2014)).
Here, there is no evidence that Debeikes was deceived
regarding Hawaiian Airlines’ position.

At most, Plaintiff has

complained that AFA was less than forthcoming regarding its
grievance strategy related to CBA § 23.E.10.c.

This does not

mean that Hawaiian Airlines deceived him regarding any employment
issues, including the likely results of its disciplinary hearing.
The Amended Complaint simply argues that the company
“constructively discharged Plaintiff without ‘just cause’” by
“predetermin[ining] to [t]erminate” him without a fair hearing.
Am. Compl. ¶ 13, ECF No. 80.

That allegation does not invoke

deception.

29/

The Court only assumes the validity of these arguments
arguendo and specifically declines to issue an advisory opinion
as to their merits. Where contractual grievance procedures exist
to resolve such disputes, courts are to “order resort to the
private settlement mechanisms without dealing with the merits of
the dispute.” Soone, 353 F. Supp. 2d at 1115-16. If another
flight attendant in future seeks to invoke the CBA’s grievance
procedures (as Debeikes did not) to challenge an alleged
“predetermined termination” as contrary to Hawaiian Airlines’ CBA
obligations, the Court is wary of injecting an advisory opinion
into that arbitration.
55

Meanwhile, to prove coercion, Plaintiff would need to
show that the company imposed the terms of his resignation, that
he had “no realistic alternative but to resign,” and that his
resignation was the product of the company’s improper acts.
Morris, 997 F. Supp. 2d at 1144.

The Court already concluded

that, regardless of Kim-Moe’s statement, Debeikes has not shown
that he had “no realistic alternative” to retirement, given that
the CBA’s grievance procedures remained available to him.

Order

at 30, ECF No. 75.
Plaintiff argues that “Hawaiian determining to
terminate Plaintiff prior to any witness testifying or documents
being presented was coercive within the meaning of Morris v.
McHugh,” notwithstanding that Plaintiff had already admitted his
guilt as to the harassment allegations raised at the April 5,
2013 investigatory meeting, because “Plaintiff is raising that
the Hawaiian tribunal would have been biased against him, i.e.,
predetermined to terminate him.”
MTD/MSJ at 4, ECF No. 102.

Opp. to Hawaiian Airlines’

He also cites to a variety of cases

indicating that employees can prove constructive discharge by
showing that they were faced with a choice to resign or be fired
and face a deprivation of income.

Id. at 5-7.

None of Plaintiff’s cited cases, however, involved
unionized employees with access to contractual grievance

56

procedures as an alternative to resignation.30/

Moreover, one

case cited by Plaintiff, Parker v. Bd. of Regents of Tulsa Jr.
College, 981 F.2d 1159 (10th Cir. 1992), is actually unfavorable
to his position.

That case involved the resignation of a tenured

faculty member who was offered a due process hearing similar to
what was available to Debeikes.

In that case, the Tenth Circuit

concluded that the plaintiff “voluntarily chose to resign and was
not constructively discharged” where she “chose to end her
employment without a hearing and not to avail herself of the
available due process procedures.”

Id. at 1162-63.

Similarly,

Plaintiff chose not to avail himself of either his disciplinary
hearing or any of the grievance procedures under the CBA, through
which he may have challenged the supposed unfairness of the
hearing that he anticipated receiving.
Additionally, a choice between resignation and
termination “does not establish that the resignation was
involuntary, unless the employer lacked good cause to believe
that there were grounds for termination.”
omitted).

Id. at 1162 (citations

Here, as noted above, Debeikes had already admitted to

allegations of sexual harassment at his April 5, 2013

30/

One case cited by Plaintiff does not even involve the
concept of constructive discharge. Ward v. Village of
Monroeville, 409 U.S. 57, 61-62 (1972) (cited in Opp. to Hawaiian
Airlines’ MTD/MSJ at 6, ECF No. 102) examined the
constitutionality of a city mayor’s service as judge in a traffic
case against the plaintiff.
57

investigatory interview, and Hawaiian Airlines had informed
Plaintiff by letter of May 21, 2013 that the company had
“completed its investigation into [his] alleged misconduct” and
“believe[d] that [Plaintiff] violated the [] House Rules and
Company Policies.”

Ltr. from Ross Yamanuha to Plf., Marn Decl.

Ex. 4, ECF No. 52-8.

Both the Policy and House Rules prohibit

sexual harassment and indicate that it may result in discipline,
including discharge.

Id. at 3-4.

It therefore appears that

Hawaiian Airlines had sufficient “cause to believe that there
were grounds for termination.”
For the foregoing reasons, the Court concludes that
Plaintiff’s argument that he was “constructively discharged,”
even if it were not already preempted by his breach of CBA claim,
lacks merit.
III. Plaintiff’s Claim against AFA Is Not Viable
The second prong of Plaintiff’s hybrid § 301/fair
representation cause of action is his claim that AFA breached its
DFR.

As noted above, under Bliesner, 464 F.3d at 913-14,

Plaintiff’s hybrid claims against both Hawaiian Airlines and AFA
fail following the Court’s conclusion that his breach of CBA
claim is not viable. Nonetheless, as an alternative basis for its
ruling, the Court examines below Plaintiff’s remaining claims
related to AFA’s alleged breach of the DFR and finds none of them
meritorious.

58

Plaintiff alleges that AFA breached its DFR in three
ways.31/

First, Plaintiff suggests that AFA breached its DFR in

failing to investigate or process a grievance related to his
“predetermined termination,” in violation of “the CBA’s due
process requirement of a fair hearing.”
80.

Am. Compl. ¶ 13, ECF No.

For the reasons explained above, the Court concludes that

this breach of DFR claim is without merit and GRANTS summary
judgment in favor of Defendants as to such claim.
Second, Plaintiff contends that AFA breached its DFR
because it “failed to notify Plaintiff that Defendant Union had
filed a MEC grievance involving Article 23.E.10.c,” because he
would have awaited the outcome of that grievance before deciding
whether to retire.

Id. ¶ 12.

However, this question was

squarely addressed in the Court’s prior Order, wherein it granted
Defendants’ motions for summary judgment “with respect to whether
Defendant AFA breached the DFR by failing to inform Debeikes that

31/

The Court briefly addresses an additional issue suggested
by Plaintiff’s counsel for the first time at the Court’s October
22, 2015 hearing: that AFA never advised Plaintiff he would be
able to submit mitigating evidence at Hawaiian Airlines’
disciplinary hearing.
Oral argument is not evidence sufficient to defeat summary
judgment. Flaherty, 574 F.2d at 486 n.2. Moreover, Plaintiff’s
counsel’s assertion is contradicted by the written record.
Akau’s declaration testimony, which Plaintiff did not contest, is
that he spoke with Plaintiff by telephone on May 24, 2013
regarding “what [Plaintiff] could expect at the disciplinary
hearing” and specifically informed him that “he could explain his
side of the story and make all of his arguments to mitigate any
disciplinary action.” Akau Decl. ¶ 20, ECF No. 52-3.
59

it had filed a grievance with respect to CBA § 23.E.10.c.”

Order

at 49, ECF No. 75.
The Court’s prior conclusion is now “law of the case.”
It should govern the same issue in subsequent stages of
litigation unless “clearly erroneous” and likely to “work a
manifest injustice.”
(1983).

Arizona v. California, 460 U.S. 605, 618

Courts have discretion to depart from the “law of the

case” where they are presented with new evidence, an intervening
change in law, or changed circumstances.

See U.S. v. Alexander,

106 F.3d 874, 876 (9th Cir. 1997) (citing Thomas v. Bible, 983
F.2d 152, 155) (9th Cir. 1993)).

Here, however, the Court has

not been presented with new or different evidence sufficient to
reconsider its prior conclusion, which it does not find to have
been clearly erroneous (or erroneous at all, for that matter) or
likely to work a manifest injustice.32/

32/

The Court therefore

The Court does note that the Opinion and Award, issued on
July 15, 2015, provides some additional information regarding
AFA’s class-based Grievance that was not available at the time of
the Court’s February 17, 2015 Order. Specifically, the Opinion
and Award clarifies that the issue of document withholding under
CBA § 23.E.10.c had been actively raised during the
investigations of only two Hawaiian Airlines employees (one of
which was Plaintiff) when the Grievance was filed.
Plaintiff has not moved for reconsideration of the Court’s
prior Order on this basis. Regardless, the Court would not
consider its prior findings to be clearly erroneous (or erroneous
at all, for that matter) or likely to work a manifest injustice
in light of this new information. As explained in the Court’s
prior Order, AFA articulated a non-discriminatory, good-faith
basis for its policy against disclosing class-based grievances to
individual union members. Moreover, the Court’s finding on that
(continued...)
60

GRANTS summary judgment in favor of Defendants with respect to
whether AFA breached the DFR by failing to notify Plaintiff that
AFA had filed a MEC grievance involving CBA § 23.E.10.c.
Third, Plaintiff argues that AFA breached its DFR by
failing to “investigate and consider that Plaintiff was entitled
to pursue [a grievance under] Article 23.C, entitled ‘NonDisciplinary Grievances[,]’ regarding Hawaiian Airlines’
provision of documents.”

Am. Compl. ¶¶ 7-10, ECF No. 80.

Plaintiff claims that if such a grievance had been filed, he
“would have been entitled to a speedy resolution of this issue
within approximately 55 days.”

Id. ¶ 11.

According to

Plaintiff, AFA’s “fail[ure] to even consider” filing such a
grievance on his behalf “was in reckless disregard for the rights
of plaintiff.”

Opp. to AFA’s MTD/MSJ at 3, ECF No. 103.

He does

not dispute, however, that AFA did file a MEC class-based
grievance regarding Hawaiian Airlines’ provision of investigation
documents.

Order at 14, ECF No. 75.
In support of his argument, Plaintiff cites to Castelli

v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985),
which states that “courts will interfere with union decisions
about employee grievance proceedings only if a union shows

32/

(...continued)
issue served only as an alternative basis (as here) for its
summary judgment ruling, given that Plaintiff’s breach of CBA
claim against Hawaiian Airlines was not viable. See Order at 4349, ECF No. 75.
61

reckless disregard for the rights of an employee.”
however, does little to bolster his position.

That case,

There, the Ninth

Circuit held that a union had not breached its DFR, even where it
spent only an hour and a half investigating and preparing the
plaintiff’s case for arbitration and failed to call a key
witness, because such actions did not reflect “egregious
disregard” for his rights.

Instead, they were “at most errors of

judgment, and not evidence of breach of the duty of fair
representation.”

Id. at 1483.

A breach of the DFR may be found where a union’s act
“extinguishes the employee’s right to pursue his claim,” such as
where a union fails to meet a deadline to file a grievance and
thereby “cut[s] off [Plaintiff’s] resort to the mandatory
grievance procedure, which was the only remedy for his
discharge.”

Dutrisac, 749 F.2d at 1274.

But an employee has “no

absolute right to have his grievance arbitrated,” and a breach of
the DFR “is not established merely by proof that the underlying
grievance was meritorious.”

Vaca, 386 U.S. at 195.

In this case, Plaintiff has not demonstrated that AFA
acted in “reckless disregard” of his rights or “extinguished” his
opportunity to grieve his complaint regarding Hawaiian Airlines’
provision of investigation documents.

To the contrary, it is

undisputed that AFA did file a MEC class-based grievance
regarding that dispute.

Order at 14, ECF No. 75.

62

The MEC

grievance sought relief on behalf of all affected Hawaiian
Airlines flight attendants, including Debeikes.

Henton Decl.

¶ 5, ECF No. 95-1.
In addition, Trumble’s declaration testimony is that,
had Plaintiff gone through with his disciplinary hearing, AFA
would have filed an individual LEC grievance on his behalf
regarding the company’s denial of documents and any discipline he
was issued.

Order at 15, ECF No. 75.

Henton and Akau have also

attested that AFA would have filed the grievance and taken it to
arbitration, had Debeikes gone to the hearing and been
disciplined.

Henton Decl. ¶ 32, ECF No. 95-1; Akau Decl. ¶ 4,

ECF No. 95-2.
To the extent that Plaintiff would have preferred that
Hawaiian Airlines’ actions be challenged through a different form
of grievance (an individual “Non-Disciplinary Grievance”) prior
to his retirement, he has not demonstrated that AFA’s failure to
do so was arbitrary, discriminatory, or in bad faith.

Even where

a plaintiff’s grievance may have merit, a union does not breach
its DFR where it “deliberated the alleged meritorious argument”
and “can provide an explanation for its decision not to pursue”
it.

Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir.

2000) (finding no breach of the DFR where union considered but
decided not to pursue grievance on grounds proposed by the
plaintiff).

63

Here, AFA considered the subject of Debeikes’ proposed
grievance and affirmatively pursued it through a MEC class-based
grievance.

The union has also articulated rational reasons for

its strategy of pursuing the grievance on a class basis, rather
than through individual grievances.

Henton has attested that AFA

chose to file a MEC grievance in order to attain relief for both
Honolulu and Los Angeles-based flight attendants.
¶¶ 5-10, ECF No. 95-1.

Henton Decl.

His uncontroverted declaration testimony

is that it is AFA’s normal practice to file MEC grievances,
rather than individual LEC grievances, “where a whole class of
Flight Attendants are affected, both in Honolulu, and in Los
Angeles,” by a CBA dispute with Hawaiian Airlines.

Id. ¶ 10.

Evidently, filing an individual “Non-Disciplinary Grievance”
would “do nothing for the Los-Angeles based Flight Attendants who
could be adversely affected by Hawaiian Airlines’ interpretation”
of its CBA obligations.

Id. ¶¶ 7-8.

In addition, had AFA used

individual grievances, it would have had to file one “for Mr.
Debeikes . . . and then every other Flight Attendant who could be
denied [] documents at the investigatory interview stage”
thereafter.

Id. ¶ 9.33/

33/

The Court notes that while there were just two flight
attendants who had been deprived of investigatory documents at
the time the MEC Grievance was filed, the position of Hawaiian
Airlines clearly indicated that it would continue its practice to
withhold investigatory documents in all similar cases in future.
Furthermore, in any event, Plaintiff cannot prove a DFR breach on
(continued...)
64

Plaintiff’s remaining argument appears to be that, had
an individual grievance been filed on his behalf prior to his
retirement, it would have “entitled [him] to a speedy resolution
of this issue within approximately 55 days.”
ECF No. 80.

Am. Compl. ¶ 11,

Presumably, Debeikes lodges this complaint in an

attempt to suggest that AFA’s class-based grievance strategy was
in bad faith, where it could have been resolved on an individual
basis more quickly.

A close reading of the CBA,34/ however, shows

that the argument lacks any factual basis.
There are certain timing limitations applicable to
“Non-Disciplinary Grievances” under the CBA:
First, a grievance must be filed within 60 days of when
a flight attendant knew or reasonably would have known of the
facts on which it is based.
Second, the Director of Inflight Services or his
designee must schedule a meeting within 10 days of receiving the
grievance.
Third, if the parties cannot resolve the dispute,

33/

(...continued)
the basis of AFA’s mere negligence. Where the union has
exercised its judgment, its conduct must be shown to have been
discriminatory or in bad faith, established through “substantial
evidence of fraud, deceitful action, or dishonest conduct.”
Nosie, 722 F. Supp. 2d at 1200. The Court finds that Plaintiff’s
allegations do not rise to this level.
34/

The Court notes that Plaintiff’s own Amended Complaint
explicitly incorporates the CBA by reference. Am. Compl. ¶ 6,
ECF No. 80.
65

Hawaiian Airlines shall, upon request, forward the grievance to
the Vice President of Inflight Services or his designee, who must
evaluate the appeal and furnish a written decision within fifteen
days of the meeting.
Fourth, the grievant may appeal that decision to the
SBA within thirty days.

The CBA does not, however, appear to

require the SBA to schedule a hearing on such appeal within any
set number of days.
Fifth, once the appeal hearing is held, the SBA must
render a decision within thirty days.

See Henton Decl. ¶¶ 13-17,

ECF No. 95-1 (citing CBA § 23.C(1)-(6)); AFA’s CSF Ex. 1 at
HAL00406-07, ECF No. 95-3; AFA’s CSF Ex. 2 at HAL000410, ECF No.
95-4; Decl. of Doogan Mahuna (“Mahuna Decl.”) ¶¶ 8-11, ECF No.
86-1; Hawaiian Airlines’ CSF Ex. 1 at HAL00406-07, HAL000410, ECF
No. 86-2.
Based on the foregoing, the SBA apparently has
unlimited discretion as to the scheduling of grievance hearings
under the CBA.

There is therefore no competent evidence that

Debeikes would have been “entitled to a

speedy resolution” of a

“Non-Disciplinary Grievance” within any set number of days, much
less 55.

Moreover, Henton’s declaration testimony is that

Hawaiian Airlines and AFA routinely extend deadlines applicable
to grievance and arbitration proceedings.

66

Henton Decl. ¶¶ 19-21,

ECF No. 95-1.35/

Although there is, of course, no guarantee that

such extensions would have occurred in Plaintiff’s case, the
possibility of extensions further undercuts Plaintiff’s theory
that he would have been “entitled” to a Non-Disciplinary
Grievance resolution within 55 days.36/

Plaintiff has not

produced evidence to place Henton’s assertion in genuine
dispute.37/
The Court finds that no genuine issues of material fact
remain and accordingly GRANTS summary judgment in favor of
Defendants as to whether AFA breached the DFR by failing to file
a CBA § 23.C grievance on Plaintiff’s individual behalf regarding
Hawaiian Airlines’ provision of investigation documents.

35/

This is consistent with the CBA, which provides that time
limits applicable to grievances and SBA proceedings may be
extended by mutual agreement of Hawaiian Airlines and AFA. AFA’s
CSF Ex. 1 at HAL000409, Ex. 2 at HAL000413, ECF Nos. 95-3, 95-4;
Hawaiian Airlines’ CSF Ex. 1 at HAL000409, HAL000413, ECF No. 862.
36/

The Court observes that although it was a different
class-based form of grievance, it took more than two years from
its date of filing, April 12, 2013, for the MEC Grievance to
reach a decision from the SBA, on July 15, 2015. This further
corroborates Henton’s testimony that grievance proceedings
between AFA and Hawaiian Airlines are often protracted.
37/

Plaintiff’s Concise Statement on this issue merely
indicates: “Plaintiff Objects to this fact being irrelevant and
speculative as to whether any extensions would have been agreed
upon in his potential CBA 23.c[]grievance.” Plf.’s CSF - AFA
¶ 28, ECF No. 105. This does not meet his burden under Federal
Rule of Civil Procedure 56 to show that a fact is genuinely
disputed by “citing to particular parts of materials in the
record” or showing that AFA “cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c)(1)(A).
67

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that
summary judgment is granted as to:
Defendant Hawaiian Airlines, Inc.’s Motion to Dismiss,
or in the Alternative, Grant Summary Judgment, ECF No. 85;
The Substantive Joinder of Association of Flight
Attendants-CWA, AFL-CIO in Defendant Hawaiian Airlines, Inc.’s
Motion to Dismiss, or in the Alternative, Grant Summary Judgment
[Doc. No. 85], ECF No. 90;
Defendant Association of Flight Attendants-CWA, AFLCIO’s Motion to Dismiss or, in the Alternative, for Summary
Judgment, ECF No. 94; and
Defendant Hawaiian Airlines, Inc.’s Joinder to
Defendant Association of Flight Attendants-CWA, AFL-CIO’s Motion
to Dismiss or, in the Alternative, for Summary Judgment [Dkt.
94], ECF No. 99.
The Clerk of the Court is instructed to close the case.

68

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, October 28, 2015.

________________________________
Alan C. Kay
Senior United States District Judge

Debeikes v. Hawaiian Airlines, Inc. et al., Civ. No. 13-00504 ACK-RLP, Order
Granting Summary Judgment as to the Motions to Dismiss or in the Alternative
for Summary Judgment of Defendants Hawaiian Airlines, Inc. and Association of
Flight Attendants-CWA, AFL-CIO.

69