Kirchhof v. Hawaii Association of Union Agents
Filing
85
ORDER (1) DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, DOC. NOS. 43 and 47; and (2) GRANTING HAUA'S AND YUEN'S MOTION FOR JOINDER, DOC. NO. 50 re 43 , 47 , 50 - Signed by CHIEF JUDGE J. MI CHAEL SEABRIGHT on 5/20/2016. "Based on the foregoing, the court DENIES in part and GRANTS in Part Defendants' Motions for Summary Judgment, Doc. Nos. 43 and 47. Specifically, the court GRANTS Defendants' Summa ry Judgment Motions as to Yuen, Mitra and Holck; these three individuals are dismissed from this action. In all other respects, the court DENIES Defendants' Motions for Summary Judgment with regard to Count I and Count II. As to Count III, the court GRANTS HGEA summary judgment and DENIES HAUA summary judgment." (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
MARC-ANDRE KIRCHHOF,
Plaintiff,
vs.
HAWAII ASSOCIATION OF UNION
AGENTS, HAWAII GOVERNMENT
EMPLOYEES’ ASSOCIATION,
LOCAL 152, AMERICAN
FEDERATION OF STATE,
COUNTY AND MUNICIPAL
EMPLOYEES, AFL/CIO
(HGEA/AFSCME LOCAL 152);
MICHAEL YUEN, in his official
capacity as HAWAII ASSOCIATION
OF UNION AGENTS President and
Representative; MICHELE MITRA, in
her official capacity as Maui Island
Division Chief for HGEA/AFSCME
LOCAL 152; WILBERT HOLCK, in
his official capacity as Deputy
Executive Director for
HGEA/AFSCME LOCAL 152,
Defendants.
______________________________
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CIV. NO. 15-00175 JMS-KSC
ORDER (1) DENYING IN PART
AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT, DOC.
NOS. 43 and 47; and (2) GRANTING
HAUA’S AND YUEN’S MOTION
FOR JOINDER, DOC. NO. 50
ORDER (1) DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, DOC. NOS. 43
AND 47; AND (2) GRANTING HAUA’S AND YUEN’S MOTION FOR
JOINDER, DOC. NO. 50
I. INTRODUCTION
Plaintiff Marc-Andre Kirchhof (“Plaintiff”) filed this action asserting
that (1) his former employer, Hawaii Government Employees’ Association, Local
152, American Federation of State, County and Municipal Employees, AFL-CIO
(“HGEA”), breached its collective bargaining agreement (“CBA”) in violation of
§ 301 of the Labor Management Relations Act (“LMRA”) by wrongfully
terminating him; (2) his union, Hawaii Association of Union Agents (“HAUA”),
breached its duty of fair representation in violation of the National Labor
Relations Act (“NLRA”) by declining to arbitrate his grievance; and (3) HGEA
and HAUA’s (collectively, “Defendants”)1 actions amount to intentional infliction
of emotional distress (“IIED”). Plaintiff seeks reinstatement, compensatory
damages, and punitive damages.
Currently before the court are (1) Defendants’ Motions for Summary
Judgment, Doc. Nos. 43 and 47, and (2) HAUA’s and Yuen’s Motion for Joinder,
Doc. No. 50. Based on the following, the court DENIES in part and GRANTS in
1
Plaintiff also named Michael Yuen, Michele Mitra, and Wilbert Holck as defendants in
this action. However, Plaintiff conceded that these individuals were improper parties under
§ 301, Doc. No. 67, Opp’n at 40, and later clarified that “Plaintiff is not seeking personal liability
against the[se] [t]hree [i]ndividuals in Plaintiff’s IIED claims.” Doc. No. 82, Plaintiff’s
Supplemental Brief and Answer to the Court’s Entry of Order Dated May 5, 2016, at 3.
Accordingly, the court GRANTS Defendants’ Motions for Summary Judgment as to Defendants
Yuen, Mitra, and Holck.
2
part Defendants’ Summary Judgment Motions. The court GRANTS HAUA’s and
Yuen’s Motion for Joinder.
II. BACKGROUND
A.
Factual Background
1.
Plaintiff’s HGEA Career
Plaintiff began working for HGEA’s Maui Division Office as a full-
time Union Agent on February 2, 2004. Doc. No. 44, HGEA’s Concise Statement
of Facts (“CSF”) ¶¶ 1-2.2 HGEA’s Maui Division is a small office with only a
handful of employees. See Doc. No. 68-25, Pl.’s Ex. 23 (indicating that HGEA’s
Maui Division office presently employs four people). As a Union Agent,
Plaintiff’s work was supervised by HGEA’s Maui Division Chief. Doc. No. 44,
HGEA’s CSF ¶ 6. According to Plaintiff, he “met expectations or [was]
outstanding in every performance or job review during his 10 years with HGEA.”
Doc. No. 70, Pl.’s CSF ¶ 3.
Beginning June 17, 2014 -- several months after Plaintiff’s ten-year
anniversary with HGEA -- HGEA promoted Michele Mitra (“Mitra”) from her
position as Union Agent to Maui Division Chief. Doc. No. 44, HGEA’s CSF ¶ 7;
2
Where the parties do not dispute a particular fact, the court cites directly the party’s
CSF.
3
see also Doc. No. 44-4, Declaration of HGEA Union Agent Tehani Nunez
(“Nunez Decl.”) ¶ 3 (“Mitra was transitioning job roles from Union Agent to
Division Chief”). Though not entirely clear, it appears that after Mitra’s
promotion, there were only two full-time Union Agents at HGEA’s Maui Division
Office: Tehani Nunez and Plaintiff. See, e.g., Doc. No. 44-4, Nunez Decl. ¶¶ 2-4
(implying that Nunez and Plaintiff were HGEA’s only two Union Agents on
Maui). See also Doc. No. 68-25, Pl.’s Ex. 23 (indicating that HGEA’s Maui
Division office presently employs only two Union Agents).
On July 2, 2014, Mitra held a meeting with Nunez and Plaintiff. See
Doc. No. 44-4, Nunez Decl. ¶ 2; Doc. No. 68-1, Declaration of Marc-Andre
Kirchhof (“Pl.’s Decl.”) ¶ 3. The parties dispute what happened at this meeting.
According to HGEA, Mitra informed Nunez and Plaintiff that, because of her
promotion, she “would no longer be able to take on new cases” and that new cases
would be assigned to Plaintiff and Nunez. Doc. No. 44-4, Nunez Decl. ¶ 2.
Nunez says that Plaintiff “did not take on new cases” and that “new cases were
assigned to HGEA Union Agents on Oahu and [Nunez].” Id. ¶ 4.
By contrast, Plaintiff says that “[t]here was no discussion of work
assignments at this meeting.” Doc. No. 68-1, Pl.’s Decl. ¶ 3. Instead, Plaintiff
states that the July 2, 2014 meeting involved Nunez describing “an issue with a
4
particularly uncooperative member” and that Mitra “immediately inquired whether
the member was ‘white.’” Id. Plaintiff says that “[a]fter the meeting [he]
complained to [Mitra] about her racist comments” and said “that it made [him]
uncomfortable.” Id. Plaintiff further claims that he “always volunteered” to
accept work, Doc. No. 44-14, HGEA’s Ex. 10 (“Pl.’s Dep.”) at 69:14-15, and that
he “never refused to take on work, cases, assignments, or any other tasks when
asked to do so by a superior.” Doc. No. 68-1, Pl.’s Decl. ¶ 22.
On August 2, 2014 -- a Saturday -- various HGEA employees,
including Plaintiff, agreed to participate in a political canvassing event.3 Plaintiff
emailed Mitra at 11:15 a.m., and stated: “FYI: I am not able to come to the 8/2
Ka’ala canvassing this morning.”4 Doc. No. 44-15, HGEA’s Ex. 11 (emphasis
added). That same day, Nunez “observed [Plaintiff] playing soccer” at H.A.
Baldwin Park,5 Doc. No 44-4, Nunez Decl. ¶ 5, and it appears that Nunez
subsequently reported Plaintiff’s soccer activities to HGEA. Doc. No. 48-1,
3
HGEA clarified at the hearing that participation in this event was voluntary.
4
According to Plaintiff, he missed the canvassing event because he “had to attend a
funeral” and he “went early to help set up.” Doc. No. 68-1, Pl.’s Decl. ¶ 12.
5
According to Nunez, she was at Baldwin Park because she “went to watch [her] friend
. . . play soccer.” Doc. No. 44-4, Nunez Decl. ¶ 5. The schedule for Plaintiff’s recreational
soccer league indicates that Plaintiff’s soccer team began playing at 3 p.m. that afternoon. Doc.
No. 44-13, HGEA’s Ex. 9, Soccer Schedule.
5
Declaration of Michael Yuen (“Yuen Decl.”) ¶ 57. HGEA never contacted
Plaintiff about missing the August 2, 2014 event.6 Doc. No. 68, Pl.’s CSF ¶ 13.
Beginning the next Monday (August 4, 2014) through Thursday
(August 7, 2014), Plaintiff was out sick. Doc. No. 44-11, HGEA’s Ex. 7,
Timesheet. On August 8, 2015 (Friday), all HGEA offices were closed
unexpectedly due to “severe weather conditions” caused by a hurricane. Doc. No.
44-17, HGEA’s Ex. 13, Employee Bulletin.
On August 9, 2014 -- another Saturday -- various HGEA employees,
including Plaintiff, agreed to participate in a phone banking event for a political
race.7 Doc. No. 44-14, Pl.’s Dep. at 88. Plaintiff did not participate,8 id., and that
same day, Nunez “observed [Plaintiff] standing on the sidelines of the soccer
field,” Doc. No. 44-4, Nunez Decl. ¶ 6, and apparently reported Plaintiff’s soccer
activities to HGEA. See Doc. No. 48-1,Yuen Decl. ¶ 57. HGEA never contacted
Plaintiff about missing the August 9, 2014 event. Doc. No. 68-1, Pl.’s Decl. ¶ 13.
6
Plaintiff has submitted evidence that physical activity was consistent with his medical
leave. See Doc. No. 68-1, Pl.’s Decl. ¶ 11 (“I played in a Maui recreational soccer league in
order to get more physical activity as advised by my doctor. Each game I forced myself to go and
see if it helped.”).
7
HGEA clarified at the hearing that the phone banking event was likewise voluntary.
8
During discovery, Plaintiff stated that he was unable to participate due to a power
outage. See Doc. No. 44-14, Pl.’s Dep. at 88.
6
From August 11, 2014 through September 4, 2014, Plaintiff missed
work while on sick leave.9 Doc. No. 44, HGEA’s CSF ¶ 20. During this period,
Plaintiff submitted weekly doctor’s notes to HGEA. Id. ¶ 21. Plaintiff says he
was available by phone and email. Doc. No. 68-1, Pl.’s Decl. ¶ 8. HGEA claims,
however, that “[w]hile on sick leave, Plaintiff’s location and whereabouts were
unknown.”10 Doc. No. 68-17, Pl.’s Ex. 15 at 12.
On the morning of September 3, 2014, Plaintiff emailed HGEA
explaining that he was “still out sick due to illness.” Doc. No. 68-3, Pl.’s Ex. 1.
The doctor’s note attached to Plaintiff’s email stated that Plaintiff should
“continue off work until 9/10/14 due to occupational stress.” Id.
HGEA terminated Plaintiff by letter dated September 4, 2014. Doc.
No. 44-22, HGEA’s Ex. 18, Termination Letter. HGEA’s termination letter did
not provide a reason for Plaintiff’s termination, id., and HGEA admits that
“Plaintiff was not contacted or warned to discuss his employment status” prior to
9
During discovery -- i.e., after Plaintiff was terminated -- Plaintiff indicated that he was
“probably” at soccer games held on two Saturdays while he was out on sick leave (August 23,
2014 and August 30, 2014). See Doc. No. 44-14, HGEA’s Ex. 10 at 106. See also id. at 111
(explaining that Plaintiff “may” have been at the August 30th game and he “may” have played
but that he “highly doubt[ed] it because [he] . . . wasn’t feeling good”).
10
During oral argument, HGEA’s counsel admitted that HGEA was aware of Plaintiff’s
phone number and address -- in fact, HGEA mailed the termination letter to Plaintiff’s home.
Clearly, HGEA could have contacted Plaintiff with little effort prior to his termination.
7
his termination. Doc. No. 68-17, Pl.’s Ex. 15 at 12.
On September 8, 2014, Plaintiff received HGEA’s termination letter.
Doc. No. 68-1, Pl.’s Decl. ¶ 14. Plaintiff was “confused, surprised and shocked,”
id. ¶ 15, and “couldn’t believe it and had no idea why” he was terminated. Id.
Plaintiff then emailed Wilbert Holck (“Holck”), HGEA’s Executive Director, and
requested “in writing the specific reasons of the termination action.” Doc. No. 4424, HGEA’s Ex. 20. According to HGEA, Holck sent Plaintiff a responsive letter
on September 9, 2014 stating: “Your employment with HGEA was terminated
effective September 4, 2014 due to your behaviors that displayed a disregard for
your position as a Union Agent IV and significantly impacted the HGEA Maui
Division Office.” Doc. No. 44-25, HGEA’s Ex. 21. Plaintiff denies ever
receiving this letter. Doc. No. 68-1, Pl.’s Decl. ¶ 17.
2.
Plaintiff’s HAUA Membership
Throughout his employment with HGEA, Plaintiff was a member of
HAUA. Doc. No. 44, HGEA’s CSF ¶ 3. “HAUA is a labor union that serves as
the exclusive bargaining agent for Union Agents employed by HGEA.” Id. ¶ 4.
The relationship between HGEA and HAUA is governed by a CBA, id. ¶ 5, and
“any conflict between the provisions of [the CBA] and any directive of [HGEA]”
must be resolved in favor of the CBA. See Doc. No. 44-8, CBA at 1 (“Article 2 8
Conflict”).
Under the CBA, HGEA cannot discipline or discharge HAUA
members “without proper cause.” See id. at 5 (“Article 12 - Discipline and
Discharge”). HAUA members also have certain rights with regard to HAUA, such
as the right to HAUA representation for grievances that arise with HGEA that are
covered by the CBA. See id. at 2 (“Article 4 - Union Representation”); see also id.
at 21-23 (“Article 43 - Grievance Procedure”). Toward that end, the CBA outlines
a formal three-step grievance procedure: In Steps 1 and 2, the HAUA member is
entitled to meet with an HAUA Representative and HGEA’s “island division chief
or [her] designee” to discuss the grievance. Id. at 21-22. “If the grievance is not
resolved at Step 2 and [HAUA] desires to proceed with arbitration, it shall serve
written notice on [HGEA] . . . . of its desire to arbitrate within ten (10) working
days after receipt of [HGEA’s] decision at Step 2.” Id. at 22.
3.
The Grievance Process
a.
HAUA’s representation from September 8th through October
6th
On September 8, 2014, Plaintiff emailed HAUA’s President and
Representative, Michael Yuen (“Yuen”), on two occasions. First, Plaintiff told
Yuen that he would like to file a grievance against HGEA for wrongful
termination in violation of Article 12 of the CBA. Doc. No. 48-3, HAUA’s Ex. 2.
9
Plaintiff’s second email requested that Yuen include nine additional violations of
the CBA.11 Doc. No. 48-6, HAUA’s Ex. 5.
From September 8, 2014 through October 6, 2014, Plaintiff and Yuen
regularly communicated. To begin, Yuen sent Plaintiff a draft Step 1 Grievance
for Plaintiff’s consideration on September 8, 2014, and indicated he would file the
Step 1 Grievance with HGEA as soon as Plaintiff approved Yuen’s draft. Doc.
No. 48-7, HAUA’s Ex. 6. Plaintiff then suggested edits to Yuen’s draft. Doc. No.
48-8, HAUA’s Ex. 7.
On September 10, 2014, Yuen emailed Plaintiff with a revised draft.
See Doc. No. 48-9, HAUA’s Ex. 8. Yuen also wrote:
I continue to have concerns regarding your request to list
articles other than Article 12 - Discipline. Because
[HGEA] did not provide a reason for the discharge,
citing other articles could draw attention away from the
employers (sic) lack of reason for the discharge and open
avenues for the Employer to fabricate reasons for the
discharge. However, per your request I will continue to
list all the articles you cited.
Id. Plaintiff requested that Yuen file the grievance as drafted. Doc. No. 48-10,
HAUA’s Ex. 9. Three days later, Plaintiff emailed Yuen:
11
Specifically, Plaintiff requested the grievance include the following CBA violations:
Article 10 - Non-Discrimination; Article 11- Seniority; Article 12- Discipline and Discharge;
Article 13 - Personnel File; Article 14 - Evaluations; Article 18 - Vacancies; Article 21 - Work
Assignments; Article 24 - Sick Leave; Article 35 - Safety and Health. Doc. No. 48-6, HAUA’s
Ex. 5.
10
For the record, HAUA or you as the representative need
to exactly identify the exact[]/specific reasons of my
wrongful termination so we can establish the proper
defense strategies. With HGEA’s certified letter dated
September 4, 2014 and received by me on the 8th, it does
not identify these nor I ever was (sic) informed prior of
any pending investigation or other matters etc. Please no
time extensions for the grievance information!
Doc. No. 48-11, HAUA’s Ex. 10.
On September 15, 2014, Yuen filed Plaintiff’s Step 1 Grievance with
HGEA. Doc. No. 48-12, HAUA’s Ex. 11. The Grievance contended:
The discharge notice came as a surprise without any
warning of the charges against [Plaintiff], or any
explanation of [HGEA’s] evidence supporting the action.
The action appears to have been taken in the absence of
any formal investigation and most importantly the
opportunity for the [Plaintiff] to present an explanation
of his story before the action was taken. We contend the
[Plaintiff’s] discharge from employment was without just
and proper cause and violated the . . . CBA.
Id. HAUA also requested “a grievance meeting and legible copy of the following
information be provided within seven (7) working days as stipulated in Article 43
- Grievance Procedure of the aforementioned subject CBA.” Id. Specifically,
HAUA asked for:
1.
All documents, including but not limited to all
memorandums, reports, investigations, letters,
statements, correspondence, notes and tape
recordings that formed the basis for the discharge
action taken against the [Plaintiff].
11
2.
All material utilized in educating employees of the
meaning and proper interpretation of the policies
and procedures, rules and regulations upon which
their conduct will be judged.
3.
All prior disciplinary actions involving the same
or similar violations for which other employees
were disciplined.
4.
All documents that established that [HGEA]
forewarned the [Plaintiff] of the specific
policy/procedure, rule/regulation for which he is
being disciplined, and that further violations
would lead to disciplinary action.
5.
List of all witnesses involved in the investigation;
by name, position title, place of employment, and
daytime telephone number.
6.
[Plaintiff’s] performance evaluations for the past
two (2) years.
7.
All documents [HGEA] intends to introduce
during the hearing of this matter.
Id. According to Plaintiff, neither he nor HAUA “received any information or
documentation pursuant to the Step 1 [G]rievance letter.” Doc. No. 68-1, Pl.’s
Decl. ¶ 18.
Two days later, on September 17, 2014, HAUA and HGEA mutually
agreed to waive the Step 1 Grievance Meeting and move Plaintiff’s grievance to
Step 2. Doc. No. 48-13, HAUA’s Ex. 12. That same day, Yuen filed a Step 2
12
Grievance that was substantively identical to the Step 1 Grievance. Id.
Meanwhile, Plaintiff and Yuen continued to communicate regularly.
For example, on September 18, 2014, Yuen asked Plaintiff to provide a rationale
for the various CBA Articles identified in the Step 2 Grievance. Doc. No. 48-15,
HAUA’s Ex. 14. That same day, Yuen sent Plaintiff another email stating:
HAUA has not received any grievance information and I
do not believe [HGEA] has a clear reason stated or any
hard evidence to support the discharge action. [HGEA]
appears to have acted without any due process afforded
to you. Absent any hard evidence on the part of
[HGEA], their case looks very damaging and waiting for
information only delays justice.
....
In preparation for the Step 2 meeting, our first goal is to
challenge [HGEA’s] discharge action absent due process
. . . . [HGEA] needs to prove how they acted with just
and proper cause. Absent written reason for the
discharge or hard evidence to support the action, our
remedy is clear. Immediate reinstatement to your
position and make you whole. The sooner we get to this
point the better.
Beyond Article 12 – Discipline; you may argue the
articles you wanted listed. Although I do not agree with
raising or arguing those articles, you seem to have a plan
and I’ll defer to you to present your rationale and
evidence . . . . Should you prefer to provide me with your
rationale and evidence on the articles violated[,] I will
present on your behalf. Let me know which you prefer.
I will be pushing to have the Step 2 meeting in a timely
manner and am prepared to move the grievance to
arbitration. I will need your help on how we proceed
13
thereafter as it will involve financing the case.
Doc. No. 48-17, HAUA’s Ex. 16.
On September 24, 2014, Plaintiff emailed Yuen requesting an update
“on the evidence requested that [HGEA] used to justify the termination action.”
Doc. No. 48-19, HAUA’s Ex. 18. Two hours later, Yuen responded that HGEA
“has yet to provide any written reason or any grievance information. Absent any,
[HGEA’s] discharge action appears [to be] without just and proper cause.” Id.
The next day, on September 25, 2014, Plaintiff emailed Yuen asking him to
identify “exactly what specifics you have done to push the issue on releasing [the
grievance] information[.]” Doc. No. 48-20, HAUA’s Ex. 19.
On October 1, 2014, HGEA confirmed that it would hold a Step 2
Grievance Meeting on October 7, 2014. See Doc. No. 48-21, HAUA’s Ex. 20.
That same day, Plaintiff emailed Yuen:
I am still concerned in regards to your response that
HAUA did not receive any grievance information and
still wants to go ahead with this meeting.
All information from HGEA should be in writing and be
given prior [to] any grievance meeting [and] I don’t feel
comfortable with this format.
In my experience as a prior Union Agent, I never
proceeded with a grievance meeting if the Employer did
not provided (sic) any and all information they used to
determine their adverse actions, why in my case it would
14
be different?
Why are you trying to push this meeting and not pushing
the grievance information requested as the grievance
stated, please advise?
You further state that it appears [HGEA] conducted the
discharge without just and proper cause, if you are not
sure and HGEA is not forthright providing such
requested information this is very concerning, also it
appears HGEA is playing a game.
Please pursue another letter or grievance to HGEA
requesting such pertinent information and if not provided
within a timely fashion you should proceed directly to
arbitration.
Doc. No. 48-22, HAUA’s Ex. 21. Approximately thirty minutes later, Yuen
replied:
I’ve attended grievance step meetings with little or no
information provided by the employer. At the meeting,
we reiterate on and for the record that the requested
information has still not been provided. Delaying the
scheduling of the step meeting to wait [for] information
that may never come is not acceptable as the delay only
denies you justice. [HGEA’s] actions appears arbitrary,
capricious and without just and proper cause. Moving
the grievance to arbitration in the quickest possible
manner will get you justice.
Doc. No. 48-23, HAUA’s Ex. 22.
The next day, on October 2, 2014, Plaintiff responded to Yuen’s
email as follows:
Thanks for the info. In review of the [CBA], it states
15
“Any information in the possession of the Employer
needed by the grievant or the Union to investigate and
process a grievance shall be provided to them upon
request within (7) working days.” [HGEA] failed to do
so and my previous e-mails where (sic) asking you to
process another grievance regarding this matter, what is
the status? Again I would like to meet but at the same
time HGEA is violating [the CBA] and I feel this is not
right going ahead with a step 2 grievance meeting
without being able to investigate my wrongful
termination prior to any hearings or meetings. Please
advise.
Doc. No. 48-24, HAUA’s Ex. 23. Approximately an hour later, Yuen replied:
Waiting for [HGEA] to provide information that they
may not have only serves to delay the process. Are you
asking me to delay the process? HAUA’s goal is to
move this case forward to resolve this matter if it means
moving the case to arbitration and letting an arbitrator
rule on the matter. I will be filing a grievance regarding
the lack of information provided by [HGEA].
[HGEA] has not provided a reason for the discharge and
HAUA does not have anything to investigate. If we
continue to get nothing at the step 2 meeting, I’m
prepared to move the case to arbitration.
If we receive reason or explanation or information for
the discharge at the step 2 meeting, we can decide
whether or not to proceed to arbitration or investigate the
reason.
Doc. No. 48-25, HAUA’s Ex. 24. Plaintiff responded the next morning stating
that he did not want to delay the process, but reiterating his concern that “HGEA
has not provided any and all requested grievance information [and] therefore I can
16
not (sic) proceed to a meeting until such time.” Doc. No. 48-26, HAUA’s Ex. 25.
Plaintiff further requested that Yuen “proceed with the additional grievance
pertaining to the requested grievance information . . . and keep me in the loop of
any developments.” Id.
That same day -- October 3, 2014 -- Yuen filed a second grievance
with HGEA. Doc. No. 48-27, HAUA’s Ex. 26. This grievance was a “Formal
Step 1 Grievance . . . regarding [HGEA’s] failure to provide grievance information
in the possession of [HGEA] needed by [Plaintiff] and HAUA to investigate and
process the grievance filed on September 17, 2014. . . . HAUA reiterates our
request for a written reason for the discharge and all information that led to the
disciplinary action.” Id. The October 3, 2014 Grievance requested the same
information HAUA requested in the September 17, 2014 Step 2 Grievance. Id.
HGEA did not provide either Plaintiff or HAUA with “any information or
documentation pursuant to the October 3, 2014 request for information.” Doc. No.
68-1, Pl.’s Decl. ¶ 20.
On October 6, 2014, Plaintiff emailed Yuen and stated that he “will
not be able to attend the meeting tomorrow due to no information given for this
grievance. My termination was done a month ago and as of today have no
information or reason for this decision.” Doc. No. 48-29, HAUA’s Ex. 28.
17
b.
The October 7, 2014 Step 2 Grievance Meeting
The Step 2 Grievance Meeting was held on October 7, 2014. Doc.
No. 44, HGEA’s CSF ¶ 30. Notwithstanding Plaintiff’s concerns, he attended the
meeting with Yuen. Id. Holck and Julia Zeghmi (“Zeghmi”), the then-HGEA
Human Resources Manager, attended the meeting on behalf of HGEA. Id. Yuen,
Zeghmi, and Plaintiff all have slightly different accounts of the Step 2 Grievance
Meeting.
According to Yuen’s notes, HGEA “indicated with no specifics that
discharge was based on HGEA 5 core values (Commitment, Service[,] Respect,
Team work, Communication).” Doc. No. 48-30, HAUA’s Ex. 29. Moreover,
HGEA “[p]hilosophized about how staff work and private lives has an impact on
the organization and the importance of the perception of membership regarding
how they view the organization and staff.” Id. According to Holck, Plaintiff
“called in sick yet was seen at a soccer game on the weekend when HGEA was
involved in PAC [Political Action Committee] activity on that weekend.” Id. In
addition, Yuen’s notes describe Holck accusing Plaintiff of rejecting “[Mitra]
assignment of additional cases indicating he can’t take on more cases. . . . Holck
raised concerns [that Plaintiff’s] rejecting cases had to be assigned to co-worker
[Nunez].” Id. Yuen’s notes further state that “Holck indicated [Plaintiff] has a
18
copy of the core values. [Yuen] reiterated HAUA requested [HGEA] provide this
type of documents as part of grievance information and Holck should provide and
not make it the responsibility of [Plaintiff].” Id.
According to Zeghmi:
During the Step 2 grievance hearing, Holck explained to
[Plaintiff] the reasons for [Plaintiff’s] termination. These
reasons included (1) while off of work on sick leave,
[Plaintiff] attended recreational soccer games,
(2) [Plaintiff] skipped work related events at which he
was scheduled to participate in and on those same days
he attended soccer games, and (3) [Plaintiff] did not take
on more cases when told to by his supervisor Mitra.
[Plaintiff] violated HGEA’s core values.
See Doc. No. 44-3, Declaration of Julia Zeghmi ¶ 16.
Plaintiff did not speak at the Step 2 Grievance Meeting but he
secretly recorded the meeting. Id. ¶ 15. According to Plaintiff’s certified
transcript of the meeting, Yuen began the meeting by saying:
Let me start . . . .The reason we’re here is because we
believe that the discharge action taken by the employer
was improper, without just and proper cause, and we’re
alleging that it’s very arbitrary and capricious action,
because termination, actually, is the ultimate (inaudible)
employee can serve.
However, what we find most disturbing in this case is
there was no -- for one, no pre-disciplinary kind of
meeting that would have given [Plaintiff] . . . opportunity
. . . to face any accusations as to any concern regarding
any disciplinary action that would have been on the
19
horizon, much less termination. . . . We want to know
what’s the basis for the discharge, what evidence does
the employer have that warranted this severe action. . . .
We’re asking for some kind of response so we can at
least see how we can resolve this. Any response?
Doc. No. 68-10, Pl.’s Ex. 8 at 3-4. Holck first discussed HGEA’s “core values” at
length. Id. at 4-5. Holck then said:
if we take a look at this case . . . one of the things we’re
very concerned about was -- and one of the reasons for
the actions was that if we have an agent, [Plaintiff],
you’re out ill -- and that’s fine, you’re sick, you’re sick.
We don’t have a problem with that, but if you’re out ill
and you’re seen at soccer games, that’s -- how people
perceive that, knowing that you’re out ill, given a time
when -- given a time when we’re in the midst of political
action and, you know, we have volunteers out there,
they’re busting their butts for [HGEA] and then they see
a staff member at a soccer game, that’s a problem.
Id. at 5. Holck continued:
When [Plaintiff] was asked to take on additional cases,
he said he was too busy, he couldn’t do it. And that’s a
problem because I met with [Plaintiff] in February of this
year and we went over his cases, and he did have quite a
few cases. He had -- if I can remember, he had like 25
grievances, 30-some-odd-investigations, and 10
consultations. But when I asked him what kind of help
do you need . . . he said, it’s manageable . . . so we
moved down to August, when, again . . . we needed help
the most, [Plaintiff is] not available to help us. We did
look at [Plaintiff’s] cases. I couldn’t find more -- we
couldn’t find more than I think it was 13 investigations
that were open. And then for investigations, if -- during
the process of investigating, the case just sits. So there’s
20
not a whole lot of action going on with those cases. We
found about six or seven grievances and about ten
consultations. So, you know, part of the reason . . . is
. . . . [w]hat happened was that [Nunez] had to assume
most of the work, the extra work, in addition to staff on
Oahu.
Id. at 7-8. Holck added that HGEA felt Plaintiff “abandoned [his] team” and that
“if we’re truly a team and we’re truly working together, you know, you don’t . . .
abandon them. . . . So we had to do something. We had to move, and that’s
basically the reason for the termination.” Id. at 8.
Finally, Holck addressed HGEA’s failure to provide documents in
response to HAUA’s September 17th and October 3rd requests for grievance
information by saying: “With regard to the documents, you have the core values. I
think you asked about the evaluations. I think [Plaintiff] has it. . . . And all other
documents pertaining to the witnesses will be provided as needed in arbitration.”
Id. at 8-9.
In response, Yuen pointed out that he thought Plaintiff’s record with
HGEA was “exemplary,” id. at 9, and told Holck: “I’m hearing you, but I still
think it’s not a terminable offense.” Id. at 11.
c.
Plaintiff’s meeting with Yuen
After the Step 2 Grievance Meeting ended, Plaintiff and Yuen talked,
and Plaintiff also recorded this conversation. See Doc. No. 68-11, Pl.’s Ex. 9.
21
Yuen told Plaintiff, “just like you said, there’s no incident that would nail you
down to either committing an act so heinous that it would require immediate
discharge without much notice. All this kind of stuff is, yeah, work related, not
taking cases.” Id. at 4. Plaintiff interrupted Yuen, saying “That’s not true. That’s
not true.” Id. Yuen asked Plaintiff to provide evidence so that he could “start
leveraging” HGEA. Id. at 5. Plaintiff refused, saying, “No, we need to know what
they have got.” Id. Yuen acknowledged that “[t]he employer has to provide
everything” and that HGEA only “provided some very broad stuff.” Id. at 6.
Plaintiff then asked, “So how can we build a defense case if they don’t give us
exact specific dates and times as to whatever they put on the reasons of the
discharge . . .”? Id. Yuen responded:
Same thing, if we start moving into arbitration, okay, and
they start talking broad and we start asking specifics and
they still go broad, that helps us, but if they have
specifics and we hearing it there, okay, because if that’s
where they want to take us, that’s where it’s gonna end
up. If you feel comfortable that that’s how we’re gonna
dance with them, fine. If you’re gonna say, no, we don’t
move till we get information, guess what, this case not
gonna [move] for a long time. Right now they
scrambling because we keep pushing.
Id. at 7. Plaintiff said, “Move it.” Id. Yuen replied:
Yeah, we gonna move ‘em. We gonna file for
arb[itration]. We’re gonna ask them to provide. We’re
gonna ask the arbitrator to compel them to give us
22
whatever they got, and if they don’t have all the details
and everything, okay.
....
You all in, and this is what I need from you. You cannot
afford an attorney, I’m going to do (inaudible)
arbitration. . . . Like you said, we don’t know what the
specifics are, we won’t know until we get it whether or
not we’re going to need specific witnesses to specific
events.
But right now it seems like they focused on one event.
There was a time when you were seen playing soccer and
allegedly you were on sick leave.
Id. at 7-16. Plaintiff informed Yuen that HGEA was “probably looking at . . . the
weekend.” Id. at 16. Yuen said: So if you were out during the week (inaudible)
physical or mental or what? Because I can defend mental if you were seen playing
soccer (inaudible).” Id. Plaintiff said: “My last doctor’s note to the employer was
that I had occupational stress. That was submitted to them on September 3rd.” Id.
d.
Yuen files intent to arbitrate Plaintiff’s grievance and informs
Plaintiff he will recommend HAUA proceed to arbitration
On October 16, 2014, HGEA denied Plaintiff’s grievance. Doc. No.
48-31, HAUA’s Ex. 30. On October 21, 2014, Yuen emailed Plaintiff that HAUA
filed a letter of intent to escalate Plaintiff’s grievance to Step 3 and take it to
arbitration. Doc. No. 68-14, Pl.’s Ex. 12. See also Doc. No. 44-31, HGEA’s Ex.
27, HAUA’s Notice of Intent to Arbitrate. Yuen also explained HAUA’s policy
and procedure regarding its Arbitration Review Board (“ARB”). Doc. No. 68-14,
23
Pl.’s Ex. 12. In addition, Yuen wrote: “The ARB will be presented with my
recommendation to proceed to arbitration for decision and HAUA vote.” Id.
(emphasis added). On October 29, 2014, Yuen “notified HAUA of Plaintiff’s case
and of filing the letter of intent to arbitrate Plaintiff’s case.” Doc. No. 48-1, Yuen
Decl. ¶ 58.
e.
Yuen changes his mind
According to Yuen, at some unspecified point after the Step 2
Grievance Meeting, he “did more investigation” to determine whether HGEA
could support its contention that Plaintiff had been playing soccer while on sick
leave. Id. ¶ 57. Yuen says that he “learned that an HGEA member had reported
Plaintiff to Maui Union Agent Tehani Nunes (sic) who went to the soccer field to
verify that Plaintiff was in fact playing soccer although he had called in sick and
was supposed to be at the PAC event.”12 Id.
Yuen subsequently prepared a “Just Cause Assessment” of Plaintiff’s
12
Plaintiff says that “HAUA never called [him] to discuss the allegation that [he] was
seen playing soccer during a PAC event, after a PAC event or during sick leave.” Doc. No. 68-1,
Pl.’s Decl. ¶ 23. Plaintiff further states that “HAUA never advised [him] that calling in sick and
being on leave status, not attending a PAC activity, but being seen playing soccer when allegedly
sick, or refusing work and case assignments could be a basis for termination. On the contrary
[Yuen] consistently said otherwise.” Id. ¶ 24. According to Yuen, he discussed this information
with Plaintiff during telephone conversations prior to the Step 2 Grievance Meeting. Doc. No.
73-1, Second Yuen Decl. ¶¶ 8, 11. In any event, Plaintiff’s recordings make clear that Yuen was
generally aware of these allegations before Yuen informed Plaintiff and HGEA of HAUA’s
intent to arbitrate and Yuen’s intent to recommend arbitration. See generally Doc. Nos. 68-10,
68-11, Pl.’s Exs. 8, 9.
24
grievance.13 Id. ¶ 60. A “Just Cause Assessment” requires the union agent to
answer the following seven questions:
1.
2.
3.
4.
5.
6.
7.
Did the Employer adequately warn the Employee
of the consequences of his conduct?
Was the Employer’s rule or order reasonably
related to efficient and safe operations?
Did the Employer investigate before administering
the discipline?
Was the investigation fair and objective?
Did the investigation produce substantial evidence
or proof of guilt?
Were the rules, orders and penalties applied
evenhandedly and without discrimination to all
Employees?
Was the penalty reasonably related to the
seriousness of the offense and the past record?
See Doc. No. 48-35, HAUA’s Ex. 34. Notwithstanding Yuen’s prior statements to
Plaintiff, Yuen answered all seven questions affirmatively. Id.
In addition, Yuen provided context, with details, in support of his
affirmative answers that appears inconsistent with Yuen’s prior conduct. For
example, in response to the first question -- “Did the Employer adequately warn
the Employee of the consequences of his conduct?” -- Yuen answered:
13
The “Just Cause Assessment” is prefaced by the following explanatory template:
“Regular employees shall not be disciplined without proper cause. The 7 Point Test taken from
the Enterprise Wire Arbitration defines the following seven (7) questions as a mechanism to
determine whether or not there has been a violation of an Employees (sic) just and proper cause
rights. A no answer to any of the seven questions would render the disciplinary action taken by
the Employer as inappropriate and unfair.” Doc. No. 48-35, HAUA’s Ex. 34.
25
Yes. Employer and Employees (including Grievant)
collaborated and trained together on the development of
the “Core Values” of Commitment, Service, Respect,
Teamwork and Communication. All Employees
(including Grievant) were trained and forewarned of the
outcome and consequence when failing to adhere to the
Core Values. Individuals within the organization not
supporting the Core Values and one another, had no
place in the organization and should seek employment
elsewhere. Failing to follow the Core Values would
subject the organization to internal strife and
divisiveness and negatively impact member perception
of the organization.
Id. And, in response to the third question -- “Did the Employer investigate before
administering the discipline?” -- Yuen answered:
Yes. Employer received and acted upon report that
Grievant while on sick leave was witnessed by member
who notified staff who verified and notified Division
Chief of Grievants (sic) participation in social sports
activity while fellow co-workers and Union members
were engaged in required Union activity. Grievants (sic)
actions does (sic) not uphold commitment to wholeheartedly support and participate in required Union
activities and events. The Members (sic) sighting and
reporting of Grievant’s participating in sports activities
while on sick leave contributes to a negative perception
by members of staff not committed to walking the talk of
commitment and participating in required in (sic) Union
activities.
Id. Moreover, Yuen stated on several occasions that Plaintiff “admitted to the
facts.” Id. For example, Yuen said that Plaintiff “admitted to refusing to accept
additional cases.” Id. Finally, Yuen even implied that HGEA should have gone
26
further and charged Plaintiff with insubordination, stating: “Although not charged
with insubordination, [Plaintiff’s] actions appear insubordinate. . . . [HGEA’s]
issuance of the ultimate penalty of discharge from employment is with proper
cause.” Id.
After completing the Just Cause Assessment, Yuen “informed the
ARB of my assessment HGEA had met the 7 step test for just and proper cause.”
Doc. No. 48-1, Yuen Decl. ¶ 61. Yuen “advised the ARB that given the facts, [he]
could not recommend that the HAUA agree to arbitrate the grievance although it
was for the ARB to consider the issue and make a decision as to how it wished to
proceed.” Id. ¶ 62. There is no evidence in the record that Yuen consulted with
Plaintiff regarding his changed views, or that Yuen apprised Plaintiff of his
decision to change his recommendation.
On November 5, 2014, Yuen submitted a memo to the ARB regarding
the “relevant information concerning Plaintiff’s grievance.” Id. ¶ 63. See also
Doc. No. 68-16, HAUA’s Ex. 14, Arbitration Review. In relevant part, Yuen
wrote to the ARB:
[Plaintiff] from the onset of the termination of his
employment, has not been forthright in providing HAUA
information requested to mitigate potential reason for the
termination. While [HGEA] has the burden of proof
defending its termination action, HAUA has faced
challenges when dealing with the [Plaintiff] to provide
27
explanation and rationale for the inclusion of the
additional articles he requested to be included in the
grievance. [Plaintiff] persisted HAUA maintain
timelines in moving the grievance forward; yet was not
the most cooperative in facilitating moving of the
grievance forward exhibited by his reluctance to attend
the [Step 2 Grievance Meeting] until HAUA strongly
advised him to be present.
Id. at 1-2. Yuen continued:
[Plaintiff] insisted HAUA include . . . additional articles
in the grievance [on top of Article 12] . . . [but Plaintiff]
has not provided explanation or rationale to assist
HAUA in arguing the additional articles. HAUA is
concerned the additional articles may cloud the issue of
termination without just and proper cause and [HGEA]
may utilize the articles to discredit [Plaintiff] and
characterize [Plaintiff] as a disgruntled employee who
purposefully remained off work to disrupt operations[.]
During the Step 2 Grievance Meeting, [HGEA] cited
[Plaintiff’s] failure to adhere to HGEA’s Core Values
Standards. [HGEA] cited [Plaintiff’s] refusal to accept
additional cases and share in the increased [workload
when Mitra was promoted] . . . [HGEA] cited Incident
(sic) where [Plaintiff] called in sick and was seen playing
soccer on the weekend while [HGEA] staff and
volunteers were involved in PAC activities.
[HGEA] maintains [Plaintiff’s] behavior and actions
witnessed by co-workers and members failed to adhere
to HGEA’s Core Values Standards of Commitment,
Service, Respect, Teamwork and Communication.
Id. at 2. On November 13, 2014, the ARB voted “Do Not Proceed to Arbitration”
and signed Yuen’s memo to that effect. Id. The ARB then “sent a memorandum
28
to all HAUA members advising them of its recommendation and advising that the
HAUA members would make the decision as to whether to move forward to
arbitration. Doc. No. 48-1, Yuen Decl. ¶ 65. No HAUA members voted to move
forward with arbitration. Id. ¶ 67.
On November 25, 2014, Yuen advised Plaintiff “that the HAUA had
voted against moving forward with arbitration.” Id. ¶ 68. Yuen’s letter states: “It
is with regret that I inform you . . . [HAUA] will not be taking your case to
arbitration.” Doc. No. 48-38, HAUA’s Ex. 37.
B.
Procedural Background
On May 12, 2015, Plaintiff filed this action. Doc. No. 1. On March
8, 2016, HGEA filed its Motion for Summary Judgment, Doc. No. 43, and on
March 9, 2016, HAUA filed its Motion for Summary Judgment. Doc. No. 47. On
March 11, 2016, HAUA filed a Motion for Joinder to HGEA’s Motion for
Summary Judgment. Doc. No. 50. On March 24, 2016, both Defendants filed a
Statement of No Opposition to each others’ Motion for Summary Judgment. Doc.
Nos. 60, 61. Plaintiff filed a consolidated Opposition in response to Defendants’
Motions for Summary Judgment on April 11, 2016. Doc. No. 67. A hearing was
held on May 1, 2016. Doc. No. 78. Following the hearing, the court instructed
Plaintiff to clarify whether his IIED claim extended to Yuen, Mitra, and Holck.
29
Doc. No. 79. Plaintiff clarified that he “intended his claims to be solely against
HGEA and HAUA.” See Doc. No. 82, Response at 3.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
30
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere
allegations or denials of his pleading” in opposing summary judgment).
Moreover, uncorroborated allegations and self-serving testimony do not create
genuine issues of material fact. See Prindable v. Ass’n of Apartment Owners of
2987 Kalakaua, 304 F. Supp. 2d 1245, 1253 (D. Haw. 2003).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
31
IV. DISCUSSION
For the reasons that follow, the court DENIES Defendants summary
judgment as to Counts I and II. The court GRANTS HGEA summary judgment as
to Count III and DENIES HAUA summary judgment as to Count III.
A.
Plaintiff’s Hybrid § 301/Fair Representation Claims (Counts I and II)
A hybrid § 301/fair representation action “comprises two causes of
action” that sink or swim together. Bliesner v. Commc’n Workers of Am., 464
F.3d 910, 913 (9th Cir. 2006). That is:
The suit against the employer rests on § 301, since the
employee is alleging a breach of the collective
bargaining agreement. The suit against the union is one
for breach of the union’s duty of fair representation,
which is implied under the scheme of the National Labor
Relations Act. Yet the two claims are inextricably
interdependent. To prevail against either the company or
the Union, employee-plaintiffs must not only show that
their discharge was contrary to the contract but must also
carry the burden of demonstrating breach of duty by the
Union.
Id. (alterations omitted) (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.
151, 164-65 (1983)). Accordingly, “[t]he plaintiff must show that there has been
both a breach of the duty of fair representation and a breach of the CBA.” Id.
The court (1) addresses the threshold statute of limitations issue
HGEA raised regarding § 301; and (2), for the reasons that follow, finds that
32
Plaintiff has raised a genuine issue of material fact with regard to both aspects of
his hybrid § 301/fair representation claim (Counts I and II).
1.
Statute of Limitations
HGEA argues that Plaintiff’s claims are barred by the statute of
limitations. Doc. No. 43, HGEA Mot. at 28. A hybrid § 301/fair representation
claim is subject to a six-month statute of limitations after the cause of action
accrues. See DelCostello, 462 U.S. at 174 (holding that hybrid § 301/fair
representation claims are “governed by the six-month provision of § 10(b)” of the
NLRA). “The limitations period begins to run when a Plaintiff receives a letter
from the Union notifying her that it will pursue her claim no further.” Grant v.
McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998).
Yuen wrote Plaintiff a letter on November 25, 2014 informing
Plaintiff that HAUA decided not to arbitrate his grievance. Doc. No. 48-38,
HAUA’s Ex. 37. Because Plaintiff filed his Complaint on May 12, 2015, Doc. No.
1, Compl., within the six-month window, the action is timely.
HGEA’s arguments to the contrary are unpersuasive. Relying on
Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir. 1986), HGEA argues that
there is an open question as to “whether accrual occurs when the employee learns,
or should have learned, that his dispute was finally resolved . . . or whether accrual
33
occurs when the employee learns, or should have learned, that the union may have
violated its duty of fair representation.” (alterations added and quotations
omitted). HGEA argues it is the latter -- that Plaintiff “should have learned”
HAUA violated its duty of fair representation before Yuen informed Plaintiff that
HAUA decided not to arbitrate his grievance.
HGEA is mistaken for two reasons. First, Galindo makes clear that
“[a] reasoned analysis of the question when a duty of fair representation claim
accrues must focus on the context in which the claim arose.” Id. In the present
context, “[t]he limitations period begins to run when . . . [Plaintiff] receives a letter
from the Union notifying [him] that it will pursue [his] claim no further.” Grant,
163 F.3d at 1138. See also Stallcop v. Kaiser Found. Hosp., 820 F.2d 1044, 1049
(9th Cir. 1987); Miletak v. Commc’n Workers of Am., 2014 WL 1616439, at *3
(N.D. Cal. Apr. 22, 2014). Second, even assuming Galindo’s exception applies
here, there is a genuine issue of material fact as to whether Plaintiff knew or
should have known that HAUA violated its duty of fair representation before he
received Yuen’s November 25, 2014 letter. That is, until Plaintiff knew that
HAUA was not going to proceed with arbitration, any complaint Plaintiff might
have had against HAUA would have been “too speculative to be proven” and
therefore premature. Allen v. United Food & Commercial Workers Int’l Union,
34
AFL-CIO, CLC, 43 F.3d 424, 427 (9th Cir. 1994).
2.
Breach of CBA (Count I)
HGEA next argues that Plaintiff was terminated in accordance with
the CBA because Plaintiff’s actions “warranted immediate termination.” Doc. No.
43, HGEA Mot. at 15. Plaintiff argues, in response, that HGEA violated multiple
Articles of the CBA when it terminated him. See Doc. No. 48-6, HAUA’s Ex. 5.
Finding that there is a genuine issue of material fact as to whether HGEA breached
Article 12 of the CBA, the court declines to examine Plaintiff’s remaining
allegations.
According to Article 12 of the CBA, “[n]o permanent Employee shall
be disciplined or discharged without proper cause.” Doc. No. 44-8, HGEA’s Ex.
4, CBA Article 12 - Discipline and Discharge, ¶ A. Although the term “proper
cause” is not defined, HGEA’s current explanation for its proper cause to
terminate is that:
1) while off of work on sick leave, he attended (and
likely participated in) recreational soccer games on
August 23, 2014 and August 30, 2014, 2) he skipped the
. . . [PAC] events, held on August 2, 2014 and August 9,
2014, after committing to and being scheduled to
participate in those events, yet on those very same days
he attended and participated in recreational soccer games
and 3) he did not take on more work when told to by his
supervisor Mitra. Individually and collectively, each of
these acts by [Plaintiff] warranted termination[.]
35
Doc. No. 72, HGEA Reply at 5.14 The court addresses each of these explanations
in turn.
a.
“[W]hile off sick leave, he attended (and likely participated in)
recreational soccer games on August 23, 2014 and August 30,
2014”
There is no evidence that HGEA knew of Plaintiff’s participation in
the August 23, 2014 and August 30, 2014 soccer games when HGEA terminated
Plaintiff; the only evidence in the record regarding Plaintiff’s attendance at these
games is from information obtained during discovery. See Doc. No. 44, HGEA’s
CSF ¶¶ 23-24 (accusing Plaintiff of attending soccer games on August 23rd and
August 30th and citing as evidence Plaintiff’s deposition in this action). And,
obviously, if HGEA was unaware that Plaintiff played soccer on August 23rd and
August 30th, he could not have been terminated for that reason. This after-the-fact
rationale appears pretextual and provides no support for HGEA.15
14
HGEA also argues that Plaintiff was terminated for violating its “Core Values.” See
Doc. No. 44-30, HGEA’s Ex. 26. But the CBA makes clear that it “shall” prevail as to any
conflict “between the provisions of [the CBA] and any directive of the Employer.” Doc. No. 448, HGEA Ex. 4, CBA Article 2- Conflict. So, regardless of any standards HGEA established
outside the CBA, HGEA still could not terminate Plaintiff “without proper cause.” See id. at
Article 12.
15
But even if HGEA knew Plaintiff participated in those games at the time HGEA
terminated him, there is a genuine issue of material fact as to whether Plaintiff’s participation in
soccer games on two Saturdays while out on sick leave constitutes “proper cause” for termination
without any warning. See Doc. No. 68-17, Pl.’s Ex. 15 (admitting that “Plaintiff was not
contacted or warned to discuss his employment status”). This is especially so given Plaintiff’s
(continued...)
36
b.
“[H]e skipped the . . . [PAC] events, held on August 2, 2014
and August 9, 2014, after committing to and being scheduled to
participate in those events, yet on those very same days he
attended and participated in recreational soccer games”
Again, there is a genuine issue of material fact as to whether
Plaintiff’s failure to participate in two voluntary PAC events constitutes “proper
cause” for immediate termination without any warning. This is especially true in
light of evidence that (1) participation in political events was voluntary;
(2) Plaintiff’s participation in the soccer games was consistent with his doctor’s
advice, Doc. No. 68-1, Pl.’s Decl. ¶ 11; (3) the PAC events appear to have been in
the morning whereas Plaintiff’s soccer games appear to have been in the
afternoon; (4) Plaintiff had “never been warned, cited, reprimanded or otherwise
disciplined during [his] 10 year career at HGEA,” Id. ¶ 2; and (5) HGEA knew
that Plaintiff was suffering from “occupational stress” before HGEA fired him.
See Doc. No. 68-3, Pl.’s Ex. 1. In light of the foregoing evidence, a reasonable
fact finder could find that HGEA’s termination of Plaintiff for missing two
voluntary PAC events did not constitute “proper cause.”
15
(...continued)
evidence that participation in these games was consistent with his doctor’s recommendation
while he was out on sick leave, see, e.g., Doc. No. 68-1, Pl.’s Decl. ¶ 11, and the fact that HGEA
knew Plaintiff was suffering from “occupational stress” the day before firing him. See Doc. No.
68-3, Pl.’s Ex. 1. A reasonable fact finder could find that HGEA’s termination of Plaintiff for
this reason did not amount to “proper cause.”
37
c.
“[H]e did not take on more work when told to by his
supervisor Mitra”
Finally, there is a genuine issue of material fact as to whether Plaintiff
refused additional work from Mitra. While Nunez says that Plaintiff refused extra
work, Doc. No. 44-4, Nunez Decl. ¶ 4, Plaintiff disagrees. See Doc. No. 68-1,
Pl.’s Decl. ¶ 22. Further, during the Step 2 Grievance Meeting, Holck stated that
when HGEA needed help in August, Plaintiff was “not available to help us.” Doc.
No. 68-10, Pl.’s Ex. 8 at 7. But Plaintiff was out on sick leave for over half of
August. See Doc. No. 44, HGEA’s CSF ¶ 20. Terminating an employee for being
unable to work while on sick leave is not “proper cause” for termination.
In short, there are genuine issues of material fact with regard to
whether HGEA breached Article 12 of the CBA. The court therefore DENIES
Defendants summary judgment as to Count I.
3.
Duty of Fair Representation (Count II)
A union’s duty of fair representation is “implied from its status under
§ 9(a) of the NLRA as the exclusive representative of the employees in the unit, to
represent all members fairly.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33,
44 (1998). This duty “requires a union to serve the interests of all members
without hostility or discrimination toward any, to exercise its discretion with good
faith and honesty, and to avoid arbitrary conduct.” Id. (citation and quotation
38
marks omitted). Put simply: “a union breaches the duty of fair representation
when its conduct toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.” Id. “Conduct can be classified as arbitrary only
when it is irrational, when it is without a rational basis or explanation.” Beck v.
United Food and Commercial Workers Union, Local 89, 506 F.3d 874, 879 (9th
Cir. 2007) (citation and quotation marks omitted). “To establish that the union’s
exercise of judgment was discriminatory, a plaintiff must adduce substantial
evidence of discrimination that is intentional, severe, and unrelated to legitimate
union objectives.” Id. at 880 (citation and quotation marks omitted). Finally, “[t]o
establish that the union’s exercise of judgment was in bad faith, the plaintiff must
show substantial evidence of fraud, deceitful action or dishonest conduct.” Id.
(citations and quotations omitted). In essence, a plaintiff must prove that the
union’s conduct was “inexplicable.” Peters v. Burlington N.R.R. Co., 931 F.2d
534, 539-40 (9th Cir. 1991). Ultimately, “so long as a union exercises its
judgment, no matter how mistakenly, it will not be deemed to be wholly
irrational.” Beck, 506 F.3d at 879 (citations and quotations omitted).
Here, viewing the evidence in the light most favorable to Plaintiff, a
reasonable fact finder could conclude that Yuen’s recommendation not to proceed
to arbitration, in light of his prior actions and statements, was “inexplicable.” In
39
fact, the record provides little evidence as to why Yuen informed Plaintiff on
October 21, 2014 that “[t]he ARB will be presented with my recommendation to
proceed to arbitration,” Doc. No. 68-14, Pl. Ex. 12, and then shortly thereafter
decided not to recommend arbitration for Plaintiff. Although Yuen claims that he
did some further investigation and wasn’t receiving full cooperation from Plaintiff,
there is nothing in the record that adequately explains Yuen’s changed position,
and the reasons Defendants provide could certainly be found to be pretextual.
Moreover, Yuen’s answers to the Just Cause Assessment certainly
could be viewed by a jury to be arbitrary, “inexplicable,” or made in bad faith. For
example, Yuen answered the first question of the Just Cause Assessment -- “Did
the Employer adequately warn the Employee of the consequences of his conduct?”
-- affirmatively. Doc. No. 48-35, HAUA’s Ex. 34. But at the Step 2 Grievance
Meeting, Yuen stated that HGEA did not give Plaintiff any warning prior to his
termination. Doc. No. 68-10, Pl.’s Ex. 8 at 3-4 (“what we find most disturbing in
this case is there was no . . . pre-disciplinary kind of meeting that would have
given [Plaintiff] . . . opportunity . . . to face any accusation as to any concern
regarding any disciplinary action”).
Moreover, Yuen answered the seventh question of the Just Cause
Assessment -- “Was the penalty reasonably related to the seriousness of the
40
offense and the past record? -- affirmatively. See No. 48-35, HAUA’s Ex. 34. But
at the Step 2 Grievance Meeting, Yuen stated that Plaintiff’s termination was not
reasonably related to HGEA’s conduct and cited Plaintiff’s “exemplary” past
record. See Doc. No. 68-10, Pl. Ex. 8 at 9 (stating that Plaintiff’s past record was
“exemplary”), 11 (stating that “I’m hearing you, but I still think it’s not a
terminable offense”).
Yuen also says in the Just Cause Assessment that Plaintiff “admitted
to refusing to accept additional cases.” Doc. No. 48-35, HAUA Ex. 34. But
according to Plaintiff’s recorded conversation with Yuen after the Step 2
Grievance Meeting, Plaintiff clearly and explicitly denied ever refusing to accept
additional work. See Doc. No. 68-11, Pl. Ex. 9 at 4 (showing that Plaintiff told
Yuen, “That’s not true. That’s not true.” when Yuen mentioned HGEA’s
allegations that Plaintiff refused work). Given the conflicting evidence and the
context in which it arose, there is a genuine issue of material fact as to whether
Yuen’s statements on the Just Cause Assessment were in bad faith.
These examples are illustrative, not exhaustive. Put simply, the Just
Cause Assessment raises several genuine issues of material fact because a
reasonable fact finder could find there is no “rational basis or explanation” for
Yuen’s changed views, and/or that Yuen’s changed position is simply
41
“inexplicable.”
The court is aware that, at some point after the Step 2 Grievance
Meeting and before Yuen completed the Just Cause Assessment, he “did more
investigation” and learned that HGEA sent Nunez “to verify that Plaintiff was in
fact playing soccer although he had called in sick and was supposed to be at the
PAC event.” Doc. No. 48-1, Yuen Decl. ¶ 57. And the court understands
HAUA’s position that Plaintiff was uncooperative and failed to provide evidence
to support his grievances despite Yuen’s repeated requests. But neither of these
arguments resolve the notable inconsistency between Yuen’s statements at the
Step 2 Grievance Meeting and his answers in the Just Cause Assessment. This is
especially true given that Yuen assured Plaintiff after the Step 2 Grievance
meeting that he would support proceeding to arbitration even if Plaintiff continued
not to provide information in support of his grievance. See Doc. No. 68-11, Pl.’s
Ex. 9 at 7 (“If you feel comfortable that that’s how we’re gonna dance with them,
fine.”).
In short, there are genuine issues of material fact with regard to
whether HAUA breached its duty of fair representation. As such, the court
DENIES summary judgment as to Count II.
42
B.
Plaintiff’s IIED Claim (Count III)
Defendants challenge Plaintiff’s IIED claim based on (1) § 301
preemption and (2) there is no genuine issue of material fact.
Section 301 provides: “Suits for violation of contracts between an
employer and a labor organization . . . may be brought in any district court of the
United States having jurisdiction of the parties.” 29 U.S.C. § 185(a). Under
§ 301, “courts apply substantive federal law to labor contract disputes, and federal
courts are authorized to fashion a body of federal common law to govern disputes
arising out of labor contracts.” E.E.O.C. v. NCL Am., 535 F. Supp. 2d 1149, 1166
(D. Haw. 2008) (citing Textile Workers v. Lincoln Mills, 353 U.S. 448, 456
(1957)). “As a result of this broad federal mandate, the Supreme Court has
explained, the preemptive force of section 301 is so powerful as to displace
entirely any state cause of action for violation of contracts between an employer
and a labor organization.” Id. (internal quotations and citations omitted). Thus, if
Plaintiff’s IIED claim stems out of the CBA, his claim is preempted. And “[e]ven
if the claims involve rights conferred by state law, independent of a CBA, the
claims are preempted if they are ‘substantially dependent’ on analysis of a CBA.”
Id. (citation omitted). If, however, “the claim is plainly based on state law, § 301
is not mandated simply because the defendant refers to the CBA in mounting a
43
defense. Thus, a claim is not preempted if it poses no significant threat to the
collective bargaining process and furthers a state interest in protecting the public
transcending the employment relationship.” Id. (citation and quotation marks
omitted).
Here, Plaintiff alleges that “Defendants’ treatment of Plaintiff . . .
constitutes extreme and outrageous behavior which exceeds all bounds usually
tolerated by decent society. Defendants’ actions and omissions were done with
malice, with the intent to cause or knowledge that it would cause, severe mental
distress to Plaintiff.” Doc. No. 1, Compl. ¶ 70.
HGEA argues that Plaintiff’s IIED claim is preempted because it
arises from “alleged violations of the CBA.” Doc. No. 43, HGEA Mot. at 31.
Plaintiff has failed to explain how any portion of his IIED claim against HGEA is
distinct from the CBA, and it appears that any IIED claim against HGEA would be
substantially dependant on the CBA.16 As such, the court GRANTS HGEA
summary judgment on Plaintiff’s IIED claim.
However, Plaintiff more clearly distinguished HAUA’s conduct from
the CBA. For example, Plaintiff argues that Yuen’s October 21, 2014 email to
16
It is also possible that Plaintiff’s IIED claim is barred by the exclusivity provision in
the Hawaii Workers’ Compensation Law, which limits the “rights and remedies” available “on
account of a work injury suffered by the employee.” See Haw. Rev. Stat. § 386-5. The parties
have not briefed this issue, and the court need not address it.
44
Plaintiff “turned out to be a complete lie” and stated that Yuen’s Just Cause
Assessment was a “tortured effort to justify” his subsequent “irrational
assessments” not to proceed to arbitration. Doc. No. 67, Opp’n at 33-34. Plaintiff
further argues that “[d]ishonest representation in bad faith by a union agent would
be outrageous by any measure. This is especially so given HAUA’s direct
knowledge of Plaintiff’s condition.” Id. at 38.
To the extent that Plaintiff is arguing that HAUA caused him IIED
because Yuen lied to him, the court finds that this conduct is not preempted. Such
a claim “poses no significant threat to the collective bargaining process and
furthers a state interest in protecting the public transcending the employment
relationship.” NCL America, 535 F. Supp. 2d at 1166. That is, such a claim
effectively reinforces the sanctity of the bargaining process and the
union/employee relationship, both of which presume that the interests of the union
and the employee are aligned. See Humble v. Boeing Co., 305 F.3d 1004, 1014
(9th Cir. 2002) (explaining that § 301 preemption was designed to guard against
the “risk that the claim will result in circumvention of the CBA and its arbitration
provisions”). Indeed, a union’s duty of fair representation is “comparable to an
action by a trust beneficiary against a trustee for a breach of fiduciary duty”
because “[j]ust as a trustee must act in the best interests of the beneficiaries, a
45
union, as the exclusive representative of the workers, must exercise its power to
act on behalf of the employees in good faith.” Chauffeurs, Teamsters and
Helpers, Local No. 391 v. Terry, 494 U.S. 558, 567 (1990) (internal citations
omitted). Accordingly, to the extent Plaintiff’s IIED claim against HAUA is
premised on his allegations that Yuen lied to him, the court finds that such a claim
is not preempted because “the CBA does not cover the allegedly extreme and
outrageous conduct.” Brown v. Brotman Med. Ctr., Inc., 571 F. App’x 572, 574
(9th Cir. 2014).
The elements of IIED under Hawaii law are: (1) that the act allegedly
causing the harm was intentional or reckless, (2) that the act was outrageous, and
(3) that the act caused (4) extreme emotional distress to another. See Enoka v. AIG
Hawaii Ins. Co., Inc., 109 Haw. 537, 559, 128 P.3d 850, 872 (Haw. 2006). As
discussed with regard to Count II, there are genuine issues of material fact
surrounding the inconsistency between Yuen’s statements at the Step 2 Grievance
Meeting and his Just Cause Assessment. Drawing all reasonable inferences in
favor of the Plaintiff, the court concludes that a reasonable fact finder could find
that such conduct was, in effect, Yuen lying to Plaintiff. And this creates a
genuine issue of material fact because a reasonable fact finder could find that such
behavior was “outrageous,” especially given HAUA effectively owed Plaintiff a
46
fiduciary duty to act on Plaintiff’s behalf in good faith. See Terry, 494 U.S. at
567. The court therefore DENIES HAUA summary judgment to the extent that
Plaintiff’s IIED claim against HAUA is premised on his allegations that Yuen lied
to him.
V. CONCLUSION
Based on the foregoing, the court DENIES in part and GRANTS in
Part Defendants’ Motions for Summary Judgment, Doc. Nos. 43 and 47.
Specifically, the court GRANTS Defendants’ Summary Judgment Motions as to
Yuen, Mitra and Holck; these three individuals are dismissed from this action. In
all other respects, the court DENIES Defendants’ Motions for Summary Judgment
with regard to Count I and Count II.
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47
As to Count III, the court GRANTS HGEA summary judgment and DENIES
HAUA summary judgment.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 20, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Kirchhof v. Haw. Ass’n of Union Agents, Haw. Gov’t Emp. Ass’n, Local 152, Am. Fed’n of State,
County and Mun. Emp., AFL/CIO (HGEA/AFSCME LOCAL 152) et al., Civ. No. 15-00175
JMS-KSC, Order (1) Denying in Part and Granting in Part Defendants’ Motions for Summary
Judgment, Doc. Nos. 43 and 47; and (2) Granting HAUA’S and Yuen’s Motion for Joinder, Doc.
No. 50
48
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