Deats v. IUE-CWA, The Industrial Division of the Communication Workers of America, AFL-CIO et al

Filing 78

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 4/22/2013; re 50 MOTION for Summary Judgment filed by General Electric Company, 51 MOTION for Summary Judgment filed by Local 761-Affiliated GE-IUE/CWA AFL-CIO and CLC Local; an appropriate order shall issue cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:11-CV-00576-TBR
GWEN DEATS

Plaintiff

v.
IUE-CWA, THE INDUSTRIAL DIVISION OF THE
COMMUNICATION WORKERS OF AMERICA,
AFL-CIO, et al.

Defendants

MEMORANDUM OPINION
This matter is before the Court upon Defendant General Electric Company and
Defendant IUE-CWA, Local 83761’s respective Motions for Summary Judgment. 1
(Docket Nos. 50 & 51, respectively.) Plaintiff Gwen Deats has responded in opposition,
(Docket No. 52,) and Defendant GE has replied, (Docket No. 73). Defendant IUE-CWA,
Local 83761 has not replied, and the time to do so has now passed. This matter is now ripe
for adjudication.

For the following reasons, the Court will GRANT the Defendants’

respective Motions for Summary Judgment.
1

In its Motion for Summary Judgment, the Union includes a final section titled “Reconsider Motion to
Dismiss on Timeliness.” (Docket No. 51-1, at 9.) This two-paragraph section requests that “the Court
reconsider the Motion to Dismiss for untimely filing which is at Exhibit 7.” (Docket No. 51-1, at 9.)
Presumably, the Union means to refer to its Motion to Dismiss at “Docket No. 7,” given that there is no
“Exhibit 7” to its Motion for Summary Judgment nor is any motion to dismiss attached thereto. This motion
will be DENIED as moot in light of the Court’s ruling on the Union’s Motion for Summary Judgment.
Therefore, although the Union’s motion to reconsider need not be addressed further, the Court nonetheless
notes that even if summary judgment in the Union’s favor were not appropriate, the Union’s motion to
reconsider would still be denied because the Union makes no viable argument for relief under either Fed. R.
Civ. P. 59(e) or 60(b). See, e.g., Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959
(6th Cir. 2004) (“Traditionally, courts will find justification for reconsidering interlocutory orders when there
is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear
error or prevent manifest injustice.”).

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BACKGROUND
Plaintiff Gwen Deats began working for Defendant General Electric Company
(GE) at its Appliance Park location in Louisville, Kentucky, in 2005.

At all times

pertinent, GE had entered into and was operating under a collective bargaining agreement
(CBA) with the IUE-CWA, the Industrial Division of the Communication Workers of
America, AFL-CIO, acting for itself and on behalf of the Local 83761 (the “Union”). In
November 2010, GE terminated Deats’ employment for an alleged violation of GE
company policy. GE indicated its decision to terminate Deats was based on a surveillance
video that purported to show Deats damaging the vehicle of another GE employee, Gary
Lowe, by “keying” Lowe’s vehicle as he walked by it in the GE parking lot.
Deats and Lowe did not get along. In or around October 2010, Deats received
reports that someone had posted derogatory graffiti about him in one of GE’s restrooms.
Deats testified in his deposition that he suspected “Lowe might have been the one behind
it.” (Docket No. 50-2, at 15.)

On October 26, Deats clocked out around 10:40 a.m. and

entered the GE parking lot.

What happened in the parking lot remains a matter of

contention among the parties. A security camera recorded Deats as he walked through the
parking lot. Defendants contend that the video shows Deats taking a “zigzagging” and
“haphazard” path, appearing to go purposefully out of his way to walk past Lowe’s
vehicle, and then extending his arm toward Lowe’s vehicle as he walked past. Deats does
not dispute that it is he in the recording; however, he maintains that he did not damage the
vehicle. According to Deats, the video’s image is so indistinct that it does not show
anything other than him walking through the parking lot and thus could not have
established a reliable basis for his termination. Deats further insists that there is no

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evidence showing that Lowe’s vehicle is actually depicted in the video or that he knew
which vehicle was Lowe’s or where Lowe’s vehicle was parked.
Several days after the video was recorded, Lowe reported to Mark Marzano, an
operations manager at GE, that Lowe’s vehicle had been keyed. GE then initiated an
investigation, which included reviewing the parking lot security footage. Based on this
investigation, GE believed Deats was responsible for keying Lowe’s vehicle. A meeting
was held in which Deats, the Union’s chief steward, and several GE managers viewed the
video. Thereafter, the video was again reviewed by GE management and Deats, along with
the Union’s president, Jerry Carney. As a result of its investigation, GE terminated Deats.
On November 23, 2010, the Union initiated a grievance proceeding to challenge
and reverse Deats’ termination. GE denied that grievance, maintaining that Deats’
termination was proper. The Union initiated the second step of the grievance process on
December 8, 2010. At this step, Carney became involved and met with GE management
on Deats’ behalf.

GE again denied Deats’ grievance, relying on the results of its

investigation. The Union then initiated the third step of the grievance process, which
required the Union’s parent entity to negotiate directly with members of GE’s management
team. GE denied Deats’ grievance again at this third step. Upon completing each of these
steps, the Union had three possible options: (1) request arbitration pursuant to the CBA, (2)
put Deats’ grievance up for strike notice, or (3) do nothing. The Union’s negotiating
committee, which was comprised of Carney and the Union’s chief stewards, held a meeting
on February 14, 2011, to decide whether to arbitrate. The committee decided not to
arbitrate Deats’ termination and instead put his grievance up for strike notice. Deats then
filed suit in October 2011.

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STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine issue of
material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The
test is whether the party bearing the burden of proof has presented a jury question as to
each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff
must present more than a mere scintilla of evidence in support of her position; she must
present evidence on which the trier of fact could reasonably find for her. Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not
suffice to defeat a motion for summary judgment: “[T]he mere existence of a colorable
factual dispute will not defeat a properly supported motion for summary judgment. A
genuine dispute between the parties on an issue of material fact must exist to render
summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177
(6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc.,
681 F.3d 312 (6th Cir. 2012).
In determining whether summary judgment is appropriate, a court must resolve all
ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “[a] party asserting
that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).

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DISCUSSION
Deats asserts a “hybrid” claim under Section 301 of the Labor and Management
Relations Act (LMRA), 29 U.S.C. § 185, against GE and the Union. To recover on a
Section 301 claim, Deats must prove both (1) that GE’s actions violated the terms of the
CBA, and (2) that the Union breached its duty of fair representation. Summers v. Keebler
Co., 133 F. App’x 249, 251 (6th Cir. 2005) (citing DelCostello v. Teamsters, 462 U.S. 151,
164-65 (1983)).

“The ‘interdependency’ of a union employee’s claims against his

employer for breach of a collective bargaining agreement and against his union for breach
of its duty of fair representation is well-established in this Circuit.” Husen v. Dow Chem.
Co., 2006 WL 901210, at *9 (E.D. Mich. Mar. 31, 2009) (quoting Millner v. DTE Energy
Co., 285 F. Supp. 2d 950, 960-61 (E.D. Mich. 2003)). “[I]f the first claim anchored in the
employer’s alleged breach of the collective bargaining agreement fails, then the breach of
duty of fair representation claim against the union must necessarily fail with it.” White v.
Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990); cf. Lucas v. Leaseway Multi
Transp. Serv., Inc., 738 F. Supp. 214, 220 (E.D. Mich. 1990) (“Since plaintiff’s count as to
the duty of fair representation fails, plaintiff’s other count alleging a breach of the CBA
also must fail.”), aff’d 929 F.2d 701 (6th Cir. 1991).
GE and the Union separately move for summary judgment on Deats’ respective
claims against them.
I.

Deats’ Claim Against GE for Breach of the CBA
Deats claims that GE breached the terms of the CBA by terminating him without

“just cause” as required by that agreement. GE maintains that it had an honest belief that
Deats damaged another employee’s property. GE further asserts that it did not breach the

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terms of the CBA and argues that Deats has failed to come forward with substantive
evidence to support that allegation.
GE’s Rules of Conduct provide that “defacing or deliberately damaging . . . the
property of others” is considered a “serious offense,” which “will result in time-off and if
considered serious enough in the judgment of management, could result in discharge on the
first offense.” (Docket No. 50-8.) GE informed Deats of its decision to terminate him by
letter dated November 16, 2010. (Docket No. 50-10.) In that letter, GE stated that its
decision was based on investigation regarding Deats’ violation of these rules, “specifically
acts of defacing and damaging the property of others.” (Docket No. 50-10, at 2.)
The Sixth Circuit has adopted an “honest belief” rule with regard to an employer’s
proffered basis for an adverse employment action.

Majewski v. Automatic Data

Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001); Braithwaite v. Timken Co., 258 F.3d
488, 493-94 (6th Cir. 2001). Under that rule, as long as an employer has an honest belief
in its proffered reason for terminating an employee, “the employee cannot establish that the
reason was pretextual simply because it is ultimately shown to be incorrect.” Majewski,
274 F.3d at 1117 (citing Smith v. Chrysler Corp., 155 F.3d 799, 808 (6th Cir. 1998)). “An
employer has an honest belief in its reason for discharging an employee where the
employer reasonably relied ‘on the particularized facts that were before it at the time the
decision was made.’” Id. (citing Smith, 155 F.3d at 807). In Smith v. Chrysler Corp., the
Sixth Circuit elaborated on the question whether “reasonable reliance” was present:
In deciding whether an employer reasonably relied on the
particularized facts before it, we do not require that the decisional
process used by the employer be optimal or that it left no stone
unturned. Rather, the key inquiry is whether the employer made a
reasonably informed and considered decision before taking an
adverse action.
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155 F.3d at 807. Accordingly, an employee “must allege more than a dispute over the facts
upon which his discharge was based.” Braithwaite, 258 F.3d at 494. “He must put forth
evidence which demonstrates that the employer did not ‘honestly believe’” in its proffered
basis for taking adverse action against the employee. Id. (referencing Smith, 155 F.3d at
806-07).
GE insists that it had an honest belief that Deats was responsible for damaging
another employee’s property—its proffered reason for his termination—and that the
decision to terminate Deats was reasonably informed and considered based on the
particularized facts before it. GE cites Lowe’s derogatory graffiti, which was targeted at
Deats, as evidence of motive. GE also points to the fact that Deats does not deny that it is
he in the surveillance footage. In addition to establishing that Deats had opportunity and
motive, GE has come forward with deposition testimony in which several members of GE
management testified that, upon viewing the surveillance footage, “it looks like [Deats]
walks by and raises his arm out and does something to the vehicle,” (Docket No. 73-1),
and that in that footage they observed “Gwen [Deats] going out the turnstile, zigzagging
through the parking lot through cars, and then . . . [y]ou see the arm in the video making a
motion along the side of the car,” (Docket No. 73-3).
In response, Deats argues that he has established a genuine factual dispute whether
GE in fact made a reasonably informed and considered decision such that a jury should
decide whether GE had just cause to terminate him. Specifically, Deats reasons that GE’s
basis for terminating him, the surveillance video and GE’s investigation, “simply does not
conclusively establish that GE discharged [him] based on the ‘honest belief’ that he keyed
Lowe’s vehicle.” (Docket No. 52, at 14.) Deats asserts that he has “set forth pages upon

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pages of evidence which puts into controversy whether GE’s ‘investigation’ was ‘thorough’
or ‘credible’ and whether its reliance on the video as a basis of discharging Deats was
reasonable.” (Docket No. 52, at 17.)
But much of Deats’ argument why a genuine factual dispute exists misses the focus
of this Court’s inquiry. As the Sixth Circuit stated in Braithwaite v. Timken Co.: “[T]he
plaintiff must allege more than a dispute over the facts upon which his discharge is based.
He must put forth evidence which demonstrates that the employer did not ‘honestly
believe’ in the proffered [basis] for its adverse employment action.” 258 F.3d at 493-94
(referencing Smith, 155 F.3d at 806-07). In effect, Deats offers little more than a challenge
to the sufficiency of GE’s evidence against him—namely, that the surveillance video is
unclear—and speculation that vehicle depicted in that footage might not be Lowe’s or that
Lowe’s vehicle might not have actually been damaged. This Court’s role, however, is not
to examine the correctness or thoroughness of GE’s decision. See Majewski, 274 F.3d at
1117; Smith, 155 F.3d at 807.

Moreover, Deats cannot maintain a viable claim that GE

breached the terms of the CBA premised merely upon some dispute over the facts
underlying GE’s decision to terminate him. In this regard, a genuine factual dispute over
the facts relied upon by GE simply does not equate to a genuine factual dispute whether
GE reasonably relied on those facts.
Accordingly, the Court concludes that Deats has put forth no evidence tending to
show that GE did not honestly believe its proffered reason for terminating him. Because
the Court finds no genuine issue of material fact whether GE had an honest belief in its
proffered reason for terminating Deats’ employment, it follows that no genuine issue of
material fact exists whether GE breached the terms of CBA by terminating Deats without

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just cause. Therefore, the Court will GRANT summary judgment in favor of GE on Deats’
claim against it for breach of the CBA. 2
II.

Deats’ Claim Against the Union for Breach of the Duty of Fair Representation
Deats also claims that the Union breached its duty of fair representation. The

Union maintains that it properly pursued Deats’ case through each of the three steps of the
grievance process and that the decision not to seek arbitration was within its discretion. In
order to prove a breach of the duty of fair representation, Deats must show that the Union’s
actions were either (1) arbitrary, (2) discriminatory, or (3) in bad faith.

Garrison v.

Cassens Transport Co., 334 F.3d 528, 538 (6th Cir. 2003) (citing Vaca v. Sipes, 386 U.S.
171, 190 (1967)). The Sixth Circuit advises that when reviewing a union’s actions, courts
“must never lose sight of the fact that union agents are not lawyers, and as a general
proposition, cannot be held to the same standard as that of licensed professionals.”
Garrison, 334 F.3d at 539; see also Schoonover v. Consol. Freightways Corp., 147 F.3d
492, 497 (6th Cir. 1998) (Kennedy, J., dissenting) (“[U]nion representatives are not
lawyers.”); Poole v. Budd Co., 706 F.2d 181, 185 (6th Cir. 1983) (“Union representatives
are not to be strictly held to the standards of attorneys.”).
“[A] union’s actions are arbitrary only if, in light of the factual and legal landscape
at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of
reasonableness,’ as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67

2

Having found that no genuine issue of material fact exists whether GE breached the terms of the CBA,
Deats’ Section 301 claim must fail on the whole. See White, 899 F.2d at 559 (“[I]f the first claim anchored in
the employer’s alleged breach of the collective bargaining agreement fails, then the breach of duty of fair
representation claim against the union must necessarily fail with it.”). Nonetheless, in the interest of
completeness, the Court will proceed to address Deats’ claim against the Union.

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(1991) (citation omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).
Mere negligence on the part of the union will not suffice, Garrison, 334 F.3d at 538 (citing
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73, 376 (1990)), nor will
ordinary mistakes, errors, or flaws in judgment, id. (citing Walk v. P*E*I* Nationwide,
Inc., 958 F.2d 1323, 1326 (6th Cir. 1992)). “[A]n unwise or even an unconsidered decision
by the union is not necessarily an irrational decision.” Id. (quoting Walk, 958 F.2d at
1326). Instead, a plaintiff must show that the union’s actions were “wholly irrational,”
O’Neill, 499 U.S. at 78, which this Circuit has described in terms of “extreme
arbitrariness,” Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 586 (6th Cir. 1994); see
also Garrison, 334 F.3d at 539.

And while a union’s duty includes undertaking a

“reasonable investigation,” Black, 15 F.3d at 585, that duty “does not require a union to
exhaust every theoretically available procedure simply on the demand of a union member,”
St. Clair v. Local Union No. 515 of the Int’l Bhd. of Teamsters, 422 F.2d 128, 130 (6th Cir.
1969) (citing Vaca, 386 U.S. at 192).
To show “discriminatory” conduct sufficient to establish a breach of the union’s
duty, a plaintiff must come forward with “substantial evidence of discrimination that is
intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Ass’n of
Street, Electric Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971);
see also Burkholder v. United Auto. Aerospace & Agric. Implement Workers of Am., Local
No. 12, 700 F. Supp. 2d 895, 907 (N.D. Ohio 2010).
“Bad faith” has been characterized by this Circuit as actions lacking “complete
good faith and honesty of purpose in the exercise of its discretion.” Apperson v. Fleet
Carrier Corp., 879 F.2d 1344, 1355 (6th Cir. 1989) (quoting Hines v. Anchor Motor

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Freight, Inc., 424 U.S. 554, 564 (1976)). To demonstrate bad faith, a plaintiff must come
forward with “evidence of fraud, deceitful action, or dishonest conduct.” Summers, 133 F.
App’x at 253 (citing Humphrey v. Moore, 375 U.S. 335, 348 (1964)).
Merely characterizing a union’s actions as arbitrary, discriminatory, or in bad faith
“is insufficient to withstand summary judgment.” Summers, 133 F. App’x at 253. Instead,
to meet his burden of proof, “a plaintiff must establish by substantial evidence that the
union acted arbitrarily, discriminatorily, or with bad faith.” Id. (emphasis added).
Deats begins by acknowledging that he must present substantial evidence that the
Union acted arbitrarily, discriminatorily, or with bad faith to establish a breach of the
Union’s duty; he insists, however, that to overcome summary judgment he must merely
come forward with evidence that “presents a sufficient disagreement” whether the Union
acted arbitrarily, discriminatorily, or with bad faith. (Docket No. 52, at 20.) Deats’
proposition in this regard is incorrect and contrary to the law of this Circuit. As the Sixth
Circuit stated in Summers v. Keebler Co.:
Merely characterizing a union’s conduct as arbitrary, perfunctory
or demonstrative of bad faith is insufficient to withstand summary
judgment. Rather, to meet his burden of proof as to the union’s
breach of its duty of fair representation, a plaintiff must establish
by substantial evidence that the union acted arbitrarily,
discriminatorily, or with bad faith.

133 F. App’x at 253 (alteration, internal quotation marks, and citations omitted).
Deats sets out essentially two lines of argument why the Union breached its duty to
fairly represent him. First, he alleges that the Union breached its duty by failing to proceed
to arbitration on his case, despite initially doing so on his coworker Lowe’s case for
defacing company property. Second, he asserts, by way of his affidavit, that he had a
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verbal altercation with Carney, the Union’s president, some two years’ prior to his
termination, during which Carney became angry with him and threatened, “[D]on’t you
ever come down to the Union Hall needin’ my help!” (Docket No. 52-4, at 5-6.) Neither
argument puts forth the “substantial evidence that the union acted arbitrarily,
discriminatorily, or with bad faith” necessary “to withstand summary judgment.” See
Summers, 133 F. App’x at 253.
In regard to his first line of argument, Deats reasons that discriminatory conduct is
shown where the Union initially pursued arbitration of Lowe’s case even though the Union
subsequently decided not to proceed to arbitration. In his deposition, Carney explained
that the decision to drop arbitration of Lowe’s case was based on the Union’s having
learned that Lowe had not fulfilled Lowe’s end of a proposed agreement with GE whereby
Lowe would admit to the graffiti and, in return, GE would agree not to terminate him. (See
Docket No. 52-3, at 7.) Carney further testified that he was unaware that Deats had filed
suit at the time the decision was made to drop Lowe’s arbitration. (Docket No. 52-3, at 7.)
Regardless, even in viewing these facts and drawing all reasonable inferences from them in
a light most favorable to Deats, the Court finds that this allegation simply does not amount
to substantial evidence that the Union acted discriminatorily against him. See Summers,
133 F. App’x at 253; see also Burkholder, 700 F. Supp. 2d at 907 (citing Humphrey, 375
U.S. at 349-50) (“A union does not breach its duty of fair representation simply because it
takes a position adverse to the interests of some members while benefitting others.”).
Moreover, this conclusory allegation certainly does not constitute substantial evidence of
“intentional, severe” discrimination that is “unrelated to legitimate union objectives.” See
Lockridge, 403 U.S. at 301; Burkholder, 700 F. Supp. 2d at 907.

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In his second line of argument, Deats’ insists that his prior run-in with Carney
“describe[s] motive for his arbitrary, discriminatory and bad faith treatment by the Union.”
(Docket No. 52, at 21.) But again, even construing these allegations as true and drawing
all reasonable inferences therefrom, the Court finds that Deats has not met his burden of
coming forward with substantial evidence. These conclusory allegations regarding events
occurring almost two years prior do not constitute substantial evidence that the Union’s
conduct in pursuing Deats’ grievance through each step of the three-step process but
deciding, in its discretion, not to pursue arbitration, “was so far outside a ‘wide range of
reasonableness,’ as to be irrational.” See O’Neill, 499 U.S. at 67. Nor do these allegations
establish evidence of either “fraud, deceitful action, or dishonest conduct,” see Summers,
133 F. App’x at 253, or “intentional, severe” discrimination that is “unrelated to legitimate
union objectives,” see Lockridge, 403 U.S. at 301; Burkholder, 700 F. Supp. 2d at 907.
Accordingly, Deats has not come forward with substantial evidence sufficient to
withstand summary judgment showing that the Union’s conduct was arbitrary,
discriminatory, or in bad faith. Therefore, the Court will GRANT the Union summary
judgment on Deats’ claim against it for breach of the duty of fair representation. 3

3

In the converse to footnote 2, supra, the Court notes that even if Deats’ claim against GE for breach of
terms of the CBA could proceed, his Section 301 claim nevertheless would fail along with his claim against
the Union. See Lucas, 738 F. Supp. at 220 (“Since plaintiff’s count as to the duty of fair representation fails,
plaintiff’s other count alleging a breach of the CBA also must fail.”); cf. White, 899 F.2d at 559.

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CONCLUSION
For the foregoing reasons, the Court will GRANT Defendants GE and the Union’s
respective Motions for Summary Judgment. (Docket Nos. 50 & 51.) An appropriate Order
of dismissal will issue concurrently with this Opinion.

Date:

cc:

April 22, 2013

Counsel

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