Moran v. Transport Workers Union of America, AFL-CIO, Air Transport Local 512 et al
Filing
92
MEMORANDUM Opinion and Order Signed by the Honorable Robert W. Gettleman on 6/17/2015.(gcy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANCISCO J. MORAN,
Plaintiff,
v.
TRANSPORT WORKERS UNION OF
AMERICA, AFL-CIO, AIR TRANSPORT
LOCAL 512, and AMERICAN AIRLINES,
Defendants.
)
)
)
)
)
)
)
)
)
)
No. 13 C 7730
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Francisco J. Moran filed an amended three-count complaint against defendants
Transport Workers Union of America, AFL-CIO, Airport Local 512 (“TWU”) and American
Airlines (“AA”), alleging that AA breached the parties’ collective bargaining agreement
(“CBA”) (Count I) and that TWU breached its duty of fair representation (Count II) and
discriminated against plaintiff on the basis of his race in violation of 42 U.S.C. § 1981 (Count
III). Defendants have both filed for summary judgment pursuant to Fed. R. Civ. P. 56,
contending that no genuine issue of material fact exists and that they are entitled to judgment as
a matter of law. For the reasons discussed below, defendants’ motions for summary judgment
are granted.
BACKGROUND1
From April 1, 1999, to July 28, 2012, plaintiff held a part-time position with AA as a
fleet service clerk. Plaintiff, along with other AA employees, parks in an employee parking lot
where he can signal a shuttle bus to take him from the parking lot to his work area. Because the
1
The following facts are, unless otherwise specified, undisputed and come from the
parties’ Local Rule 56.1 statements and responses.
employee parking lot is in a secure area of airport property, employees must use a speciallyissued badge to pass through a security post before parking in the employee lot. Accordingly,
AA can determine when an employee arrived at the parking lot. Upon arrival to their work area,
plaintiff and other AA employees must “clock in” at a biometric time clock. An employee that
clocks in after his scheduled start time receives a registered late violation (“RL”).
Over the course of his employment, plaintiff had been counseled numerous times
concerning his tardiness to work. In 2007, plaintiff was terminated from his position with AA.
After filing a grievance, plaintiff and AA reached a settlement allowing him to return to work on
condition that he “maintain a perfect attendance record.” On June 18, 2012, plaintiff received a
written warning that his attendance was “unsatisfactory,” and that failure to correct his
attendance record “could lead to further corrective action.”
On May 29, 2012, plaintiff arrived to the security post at 5:46 p.m., parked his car and
caught the shuttle bus. Upon arrival to his work area, plaintiff did not clock in, but instead went
to speak with his supervisor, Joanie Avery, citing problems with the employee shuttle bus. In
lieu of clocking in, plaintiff filled out and signed a Payroll Authorization form (“PA form”). The
PA form includes text asking the employee to “PLEASE ENSURE THAT YOU HAVE
ACCURATELY VERIFIED THE HOURS AND PAY YOU ARE REQUESTING.
MISREPRESENTATION OF ANY INFORMATION ON THIS DOCUMENT MAY SUBJECT
EMPLOYEE TO IMMEDIATE TERMINATION.” On the form, plaintiff indicated that his
scheduled start time was 6:05 p.m. and that his actual start time was 6:05 p.m. Plaintiff,
however, admittedly did not start work at 6:05 p.m. on May 29, 2012, but instead was a few
2
minutes late. Plaintiff’s supervisor signed the PA form. Plaintiff admits that if he had clocked in
on May 29, 2012, he would have received an RL for clocking in after his scheduled start time.
On July 16, 2012, plaintiff arrived at the security post at 3:49 p.m. After parking his car
and catching the shuttle bus, plaintiff did not clock in at his work area. Instead, plaintiff again
filled out and signed a PA form explaining that the shuttle bus had passed his stop. Plaintiff
indicated on the form that his scheduled start time was 4:05 p.m. and that his actual start time
was 4:05 p.m. Plaintiff, however, admittedly did not start work at 4:05 p.m, but instead was late.
Plaintiff gave the PA form to a supervisor but the form was not signed by any supervisor.
Plaintiff admits that if he had clocked in on July 16, 2012, he would have received an RL for
clocking in after his scheduled start time.
Following plaintiff’s submission of the July 16, 2012, PA form, an AA manager
contacted one of plaintiff’s supervisors, Jacek Kalamarz, to discuss the PA form and to review
plaintiff’s July 16, 2012, security post timestamp. Thereafter, on July 18 and July 25, 2012, AA
met with plaintiff for a two-part investigation into his conduct. Kalamarz conducted both
meetings, at which plaintiff had a union representative. During the July 18 meeting, plaintiff
was questioned about his arrival to work on July 16, 2012, and was allowed to tell his side of the
story. Plaintiff also provided a handwritten statement during the meeting, explaining that he was
late because the employee shuttle bus failed to stop at his bus stop and that he had to waive the
bus down. With respect to the PA form plaintiff explained that he “filled [it] out [] the way that
[he] thought [it] had to be filled out.” Following the session, plaintiff was suspended with pay
pending the results of the investigation.
3
Through additional investigation, Kalamarz learned about plaintiff’s May 29, 2012, PA
form. During a second investigatory meeting on July 25, 2012, plaintiff was questioned about
his arrival to work on May 29, 2012, and was again allowed to tell his side of the story. Plaintiff
provided a written statement concerning the events on May 29, 2012, explaining that he “felt that
[he] had time to catch a bus and was there over 15 minutes before [his] start time, but there was a
deviation from the bus run and [the bus] arrived much later than it should have.” He further
stated that he “never tried to deceive or lie about what happened. And if [he] filled the PA slip
incorrectly, that’s what [he] did but with no intentions to lie. [He] was trying to not receive RL
because he felt he had not earned it.” On July 28, 2012, AA terminated plaintiff for violating
rules 5 (requiring accurate timekeeping), 16 (prohibiting misrepresentations or falsification of
records), and 34 (prohibiting dishonesty) of its rules of conduct.
Following his termination, on July 29, 2012, plaintiff filed a grievance with AA. On
September 13, 2012, AA held a Discharge Appeal Hearing before its vice president, and on
September 25, 2012, AA denied plaintiff’s grievance. Thereafter, on January 21, 2013, plaintiff
met with TWU’s Executive Board concerning his termination. An April 29, 2013, letter
informed plaintiff that TWU had decided not to arbitrate his grievance. This lawsuit followed.
DISCUSSION
A.
Legal Standard
A movant is entitled to summary judgment pursuant to Fed. R. Civ. P. 56 when the
moving papers and affidavits show that there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Once a moving party has met its burden, the nonmoving party must go
4
beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See
Fed. R. Civ. P. 56(c); Becker v. Tenenbaum–Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990).
The court considers the record as a whole and draws all reasonable inferences in the light most
favorable to the party opposing the motion. See Green v. Carlson, 826 F.2d 647, 651 (7th Cir.
1987).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). The nonmoving party
must, however, “do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will
be insufficient; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson, 477 U.S. at 252.
B.
Analysis
As the parties point out, plaintiff’s complaint, alleging both that AA breached the CBA
and that TWU breached its duty of fair representation, is a hybrid action. See, e.g., West v.
Conrail, 481 U.S. 35, 36 (1987). Accordingly, to succeed on either claim, plaintiff must
successfully establish both that AA breached the CBA and that TWU breached its duty of fair
representation. See Cunningham v. Air Line Pilots Ass’n, Int’l, 769 F.3d 539, 541 (7th Cir.
2014) (“success in a hybrid contract/DFR suit depends on showing both that the employer
violated the contract and that the union did not represent the workers fairly”) (emphasis in
original); Crider v. Spectrulite Consortium, Inc, 130 F.3d 1238, 1241 (7th Cir. 1997) (“neither
5
claim is viable if the other fails”). The court, however, finds that plaintiff has failed to establish
issues of material fact sufficient to maintain either claim.
6
1.
Breach of CBA – AA
Defendants argue that plaintiff’s claim that AA breached the CBA when it fired him
presents no genuine issues of material fact, and that AA is therefore entitled to judgment as a
matter of law. The parties’ CBA required that AA have “just cause” to fire plaintiff. According
to defendants, plaintiff’s falsification of the PA forms provided just cause to fire him. Plaintiff,
however, argues that AA did not have just cause to fire him because he “completed his PA slips
incorrectly as a matter of honest mistake, as opposed to doing so with the intent to deceive or
defraud.” Plaintiff contends that summary judgment is inappropriate because there is evidence
in the record that his actions were the result of a mistake or misunderstanding.
“Whether the undisputed facts of a particular case establish just cause is a question of law
for the court.” Crider, 130 F.3d at 1242. “Just cause is a flexible concept, embodying notions of
equity and fairness.” Arch of Illinois, Div. of Apogee Coal Corp. v. District 12, United Mine
Workers of Am., 85 F.3d 1289, 1294 (7th Cir. 1996). And “for a penalty to be just it must be in
keeping with the seriousness of the offense.” S.J. Groves & Sons Co. v. Int’l Bhd. of Teamsters,
581 F.2d 1241, 1245 (7th Cir. 1978).
Although it does not define “just cause,” AA’s Rules of Conduct provide some guidance.
Rule 16 states that “[m]isrepresentations of facts or falsification of records is prohibited.”
Rule 34 states that “[d]ishonesty of any kind in relations with the Company, such as theft or
pilferage of Company property, . . . or misrepresentations in obtaining employee benefits or
privileges, will be grounds for dismissal.” AA also has a Company Policy Regarding Dishonesty
that further emphasizes the requirement that employees be honest, listing “timecard
irregularities” as a specific example of dishonesty. The policy goes on to state that “[n]o
7
exception can be made under Rule #34,” and that “[d]ischarge and prosecution, when applicable,
are mandatory.” Plaintiff signed this policy on his first day of work.
Plaintiff does not dispute that on two occasions he filled out PA forms stating that he had
arrived to work on time when he in fact had been late. In his July 25, 2012, written statement
plaintiff explained that he filled out the PA form in the manner that he did because he “was
trying to not receive RL because [he] felt [he] had not earned it.” Moreover, plaintiff testified
during his deposition that he filled in the PA form with his scheduled start time instead of his
actual start time on May 29, 2012, because he “felt that had the bus situation not happened,
which was out of [his] hands, that is the time that [he] . . . would have been there.” While
plaintiff may genuinely believe that his actions were not dishonest because the delayed shuttle
bus caused his tardiness, AA’s rules do not make exceptions for such beliefs.
Contrary to plaintiff’s argument, AA did not need “‘clear and convincing’ evidence, that
[his] actions were deliberate and motivated by a ‘dishonest intent.’” See, e.g., Truhlar v. John
Grace Branch #£825 of Nat. Ass'n of Letter Carriers, 600 F. Supp. 2d 964, 974 (N.D. Ill. 2009)
aff'd sub nom. Truhlar v. U.S. Postal Serv., 600 F.3d 888 (7th Cir. 2010) (defendant employer
“need not meet the standard that would be applied by a court; such a reading would too tightly
constrain the notion of ‘just cause’”). Plaintiff’s claim that the misrepresentations were the
result of a mistake are at most “a mere scintilla of evidence,” and therefore insufficient to
overcome defendants’ motions. See Anderson, 477 U.S. at 252. As a matter of law, AA had just
cause to fire plaintiff for his dishonesty.2 See, e.g., Truhlar, 600 F. Supp. 2d at 975 (concluding
2
As defendants point out, plaintiff has offered no evidence to support his allegation that
AA “colluded with and/or entered into a secret agreement with” TWU. Accordingly, the court
(continued...)
8
that employer had just cause to terminate employee after he ran afoul of a rule prohibiting
employees from engaging in dishonest conduct).
2.
Breach of Duty of Fair Representation– TWU
Because plaintiff has not established a genuine issue of material fact that would prove
AA violated the CBA, the court need not consider whether TWU breached its duty of fair
representation. See, e.g, Cunningham, 769 F.3d at 541 (“success in a hybrid contract/DFR suit
depends on showing both that the employer violated the contract and that the union did not
represent the workers fairly”). Nonetheless, the court notes that no genuine issue of material fact
exists as to whether TWU breached that duty. To establish that TWU breached its duty to fairly
represent him, plaintiff must show that TWU’s conduct toward him was “arbitrary,
discriminatory, or in bad faith.” Crider, 130 F.3d at 1243 (internal quotations omitted).
To be “arbitrary,” a union's conduct toward its member must be “so far outside a wide
range of reasonableness that it is wholly irrational or arbitrary.” Air Line Pilots Ass'n v. O'Neill,
499 U.S. 65, 78 (1991) (internal quotations and citations omitted). Plaintiff admitted to twice
reporting on PA forms that his actual start time was different than what he reported. As such, the
court has already determined that AA had just cause to fire plaintiff for violating its rules against
dishonesty. Plaintiff also violated AA’s Rule 5, requiring employees to “[c]heck on or off duty
in the prescribed manner and for yourself only.” In addition, plaintiff had a long history of being
tardy to work, had previously been fired and was under strict instructions to arrive on time every
day, and had recently received a written warning concerning his lateness. Based on this
2
(...continued)
will not consider these baseless allegations in determining whether a genuine issue of material
fact exists with respect to plaintiff’s claims.
9
information alone, TWU was reasonable in concluding that it could not win plaintiff’s grievance
at arbitration. See, e.g., Crider, 130 F.3d at 1243; see also Trnka v. Local Union No. 688, United
Auto., Areospace & Agric. Implement Workers of Am., 30 F.3d 60, 61 (7th Cir. 1994) (“[S]o
long as a colorable argument could be made at the time of the union’s decision to drop its
support that the grievance is meritless . . . , the decision cannot be regarded as arbitrary.”). Even
if TWU had pursued all of the investigatory leads plaintiff argues that it should have in order to
corroborate his story that the shuttle bus caused his tardiness, the fact would still remain that
plaintiff misrepresented his actual start time on two occasions, which was the reason he was
fired.
Nor can plaintiff establish that TWU acted in bad faith or discriminated against plaintiff
in declining to arbitrate his termination. Plaintiff testified that the only reason TWU gave him
for not arbitrating his case was that the union “didn’t want to risk anything in my case that would
set a negative precedent for future cases.” More importantly, plaintiff testified that he did not
know why TWU voted against taking his grievance to arbitration, but could “only assume that
other factors [were] involved.” Such speculation is not evidence of bad faith. See, e.g., Allison
v. Dugan, 951 F.2d 828, 833 (7th Cir. 1992) (“[S]imply claiming that the [defendant] acted in
bad faith without offering any support for that contention is not enough to prevent entry of
summary judgment for the defendants.”). As the Seventh Circuit explained in Argyropoulos v.
City of Alton, “summary judgment is the ‘put up or shut up’ moment in the lawsuit, a mere
‘hunch about the defendant’s motives’ is insufficient to survive at this stage.” 539 F.3d 724, 737
(7th Cir. 2008) (quoting Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008)). Plaintiff’s
testimony that TWU’s vice president’s “attitude on the phone was just blatantly negative
10
towards” him or that he missed a single meeting with plaintiff is not sufficient to create a
genuine issue of material fact as to whether TWU acted in bad faith or discriminated against
plaintiff in declining to arbitrate his termination.
3.
Race Discrimination – TWU
As discussed above, plaintiff has failed to point to any direct evidence that a reasonable
jury could use to conclude that TWU discriminated against him based on his race. In his
response brief, however, plaintiff appears to rely on the indirect method to establish a material
issue of fact concerning whether TWU discriminated against him in violation of 42 U.S.C.
§ 1981. See, e.g., Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014). Under
the indirect method, “a plaintiff has the burden of establishing a prima facie case of
discrimination by showing that: (1) he is a member of a protected class; (2) he met the
employer’s legitimate business expectations; (3) he suffered an adverse employment action; and
(4) similarly situated employees outside of the protected class were treated more favorably.”
Tank v. T-Mobile USA, Inc., 758 F.3d 800, 809 (7th Cir. 2014). Specifically, plaintiff identifies
“two significant pieces of indirect evidence” that he argues are sufficient to create an issue of
material fact.
First, plaintiff argues that TWU has a “discriminatory pattern of arbitration approvals,”
because none of the eight TWU members who where terminated between 2010 and 2013 and
later had their grievances approved for arbitration by the union were Hispanic. Second, plaintiff
argues that the fact that a non-minority union member, Alfredo Vitiritti, was fired for violating
AA Rules 16 and 34 and was later reinstated following a Discharge Appeal Hearing is evidence
11
that other similarly situated employees outside of his protected class were treated more
favorably. The court rejects these arguments as meritless.
As plaintiff concedes, Vitiritti was reinstated to his position with AA short of arbitration,
following a hearing with AA’s vice president. Accordingly, Vitiritti is not a similarly situated
employee outside of the protected class whom TWU treated more favorably. Plaintiff presents
absolutely no evidence that TWU would have taken Vitiritti’s grievance to arbitration had he not
been voluntarily reinstated by AA. Moreover, the fact alone that none of the eight employees
who had their grievances arbitrated by TWU between 2010 and 2013 were Hispanic does
nothing to establish that similarly situated employees outside of the protected class were treated
more favorably than plaintiff. See, e.g., id. at 809 (“A similarly situated employee is one whose
performance, qualifications, and conduct are comparable in all material respects.”) (internal
quotations omitted). Without a valid comparator, plaintiff’s race discrimination claim cannot
survive summary judgment under the indirect method of proof because he has failed to establish
a prima facie case that TWU engaged in discrimination. See id. at 810. Finally, as discussed
above, plaintiff cannot show that he met AA’s legitimate business expectations.
CONCLUSION
For the reasons stated above, the court grants defendants’ motions for summary judgment
and enters judgment in favor of defendants American Airlines and Transport Workers Union of
America, AFL-CIO, Airport Local 512, and against plaintiff Francisco Moran.
ENTER:
June 17, 2015
__________________________________________
Robert W. Gettleman
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?