Michael Reynolds v. Steward St. Elizabeth's Medical Center of Boston, Inc., et al.

Filing 53

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part and denying in part 42 Motion to Strike ; granting 29 Motion for Summary Judgment; granting 31 Motion for Summary Judgment (Woodlock, Douglas)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

MICHAEL REYNOLDS,
Plaintiff,
v.
STEWARD ST. ELIZABETH’S
MEDICAL CENTER of
BOSTON, INC., and
1199 SEIU UNITED
HEALTHCARE WORKERS EAST,
Defendants.

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CIVIL ACTION NO.
16-11119-DPW

MEMORANDUM AND ORDER
March 7, 2019
Plaintiff, Michael Reynolds, brings this action under
Section 301 of the Labor Management Relations Act claiming that
a hospital terminated his employment without just cause and that
his union breached its duty of fair representation in declining
to pursue his grievance to arbitration.
Before me are the Defendants’ motions for summary judgment
on all of Mr. Reynold’s claims as well as their motion to strike
portions of Mr. Reynold’s affidavit.

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I. BACKGROUND
A.

Factual Background1
The union Defendant, 1199 SEIU United Healthcare Workers

East (“the Union”), is an unincorporated labor organization that
at all relevant times was the collective bargaining agent for
certain non-supervisory employees of the hospital Defendant,
Steward St. Elizabeth’s Medical Center of Boston, Inc. (“the
Hospital”).
Since approximately 2009, the Union has had a collective
bargaining relationship with the Hospital.

Specifically, at all

times relevant to this action, the Union and the Hospital were
parties to a Collective Bargaining Agreement (“CBA”).

The CBA

was in effect from October 1, 2009 to September 30, 2013 and

1

I pause to note that in his submissions, Mr. Reynolds has
failed expressly to dispute or deny any of the facts set forth
in Defendants’ Joint Statement of Undisputed Material Facts in
Support of Summary Judgment. Rather, he has submitted his own
Statement of Material Facts Which Preclude Summary Judgment.
Notably, the majority of the statements from Mr. Reynolds’s
statement of material facts are lifted straight from his own
affidavit. Various procedural rules, including Local Rule 56.1,
“are designed to function as a means of ‘focusing a district
court’s attention on what is—and what is not—genuinely
controverted.’” Caban Hernandez v. Philip Morris USA, Inc., 486
F.3d 1, 7 (1st Cir. 2007) (Calvi v. Knox County, 470 F.3d 422,
427 (1st Cir. 2006)). “In the event that a party opposing
summary judgment fails to act in accordance with the rigors that
such a rule imposes, a district court is free, in the exercise
of its sound discretion, to accept the moving party’s facts as
stated.” Id. Under the circumstances in this case, I will
accept Defendants’ facts as stated in their joint statement of
undisputed material facts giving due consideration to Mr.
Reynolds’s statement when appropriate.
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from October 1, 2013 to October 31, 2016.
1.

The CBA

Article XI, § 11.01 of the CBA (in effect in October 2013)
provides, “Any employer covered by this Agreement has the right
to discipline, suspend or discharge a worker for Just Cause
only, except in the case of a probationary worker who may be
terminated without recourse to the Grievance Procedure.”
Article XXIV, § 24.03 of the CBA governs the parties’
formal grievance and arbitration procedure.

Section 24.03, in

part, provides:
Section 24.03 Formal Procedure:
In the event of a controversy concerning the
meaning or application of any provision of this
Agreement, such controversy shall be treated by the
Union and the Employer as a grievance and shall be
settled, if possible, by the Union, the worker and the
Employer as set forth hereafter. At all Steps of the
Grievance Procedure, the worker or delegate will
submit the grievance, in writing, explaining as
specifically as possible, the nature of the complaint
and identify the contract provision(s) affected.
Group grievances may be submitted at Step 2.
Step 1 – Department Head/Manager
The worker or Delegate will present a grievance
in writing to the Manager or Department Head within
twenty (20) working days from the date of the alleged
violation of the contract. The grievance must include
the facts, dates, applicable provision(s) of the
contract and the remedy requested.
Article XXIV provides further for advancement to Step 2 and
Step 3 meetings with representatives of senior management, human

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resources, and the Vice President of Human Resources,
respectively, should the disagreement remain unresolved.
Section 24.03 of the CBA further provides:
Arbitration
In the event that the parties are unable to
settle a grievance after the Step 3 or Step 4 process
is complete, then either party may request arbitration
of said grievance by serving written request for
arbitration upon the other party, no later than thirty
(30) days following the date of the written answer
under Step 3 or within 5 days of terminating the
optional Step 4 mediation process. If either party
fails to make a written request for arbitration in
this manner within this thirty (30) day period the
grievance shall be deemed to have been settled in
accordance with the most recent written answer which
shall be final and binding on the parties.
2.

Relevant Individuals

MaryEllen Leveille has been employed by the Union and its
predecessors since 1997.

She currently serves as Vice President

of the Union’s Steward Health Care System Division.
In 2013, Enid Eckstein held the position as Vice President
of the Union’s Steward Health Care System Division.

Ms.

Eckstein had been employed by the Union and its predecessors
since 1989.

She retired in October 2014, at which time Ms.

Leveille succeeded her as Vice President.
In July 2013, Ms. Leveille served as the Union’s Lead
Administrative Organizer (“AO”) at the Hospital.

Her

responsibilities as Lead AO included negotiating the Union’s
master contract with Steward Health Care System, administering
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the CBA at the Hospital, including by assisting Union delegates,
and assisting then-Vice President Eckstein with staff matters
and day-to-day duties.

As Lead AO, Ms. Leveille also attended

meetings with management on behalf of the Union and represented
bargaining unit members throughout the contractual grievance
procedure.
Plaintiff, Michael Reynolds, was hired by the Hospital as
an MRI Technologist (“MRI Tech”) in April 2010.

While

employed at the Hospital, Mr. Reynolds was a member of the Union
and his employment was governed by the CBA.

For the three and a

half years of his employment, Mr. Reynolds was supervised by
Judith Ierardi, the Operations Manager of Radiology, Radiation
Oncology, and the Breast Center at the Hospital.
3.

The Contrast Incident

On July 20, 2013, Mr. Reynolds received an order for an MRI
which expressly stated “p[atien]t is pregnant and so no
contrast.”

The order also indicated that it should be for an

“MRI BRAIN W/WO CON.”

Mr. Reynolds thereafter entered an order

in which the statement “patient is pregnant and so no contrast”
had been removed.

On that same day, Mr. Reynolds himself

injected a pregnant patient with gadolinium-based contrast.
Hospital policy cautioned that “[g]adolinium-based agents
should be administered in pregnancy only with extreme caution
and avoided if at all possible.”

Ms. Ierardi testified that in
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her 25 years she “never ha[d] heard of anyone injecting a
pregnant patient with contrast.”
As a matter of routine where serious discipline was under
consideration, Ms. Ierardi telephoned Ms. Leveille to let her
know there had been a “very serious incident,” in reference to
the contrast matter, and that she (Ierardi) would recommend that
Reynolds be terminated.”

Ms. Leveille engaged Ms. Ierardi in a

discussion of the incident and advocated strongly against
termination, based on the role two physicians played in the
contrast incident and based on lesser discipline that had been
issued previously to an MRI tech who had committed a serious
error.

Ms. Leveille made clear that the Union would vigorously

challenge termination should the Hospital discharge Mr.
Reynolds.
On July 26, 2013, Mr. Reynolds attended a disciplinary
meeting with Ms. Ierardi regarding the contrast incident.
was represented by Union delegate, Kristin Knehans.

He

During this

meeting, Ms. Knehans stated that while the contrast incident may
be “a fireable offense,” the Union would strongly fight against
Mr. Reynolds’s termination based on the lesser discipline
previously issued to an MRI tech who had committed a serious
error.
At the conclusion of the disciplinary meeting, the Hospital
did not terminate Mr. Reynolds, but issued him a Final Warning
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that stated, “[Mr. Reynolds] failed to follow the contrast
policy for a pregnant patient in the MRI suite.

This is an

egregious violation of the Contrast Medium for Pregnant Policy
Rad-02-11, and MRI in pregnancy Policy MR-11 which could have
resulted in harm to the unborn infant.”

The Final Warning

stated that “any other performance or behavioral problems may
result in further disciplinary action up to and including
termination of employment.”2
Mr. Reynolds did not grieve the July 26, 2013 Final Warning
or request that the Union do so.
4.

Performance After the Contrast Incident Leading to
His Termination

In August 2013, less than a month after the issuance of his
first Final Warning, Mr. Reynolds was the subject of a complaint
from a radiology tech aid, Jemilexi Figueroa.

Among other

things, Ms. Figueroa complained that there had been several
incidents over the prior two months in which she felt that Mr.
Reynolds had “harassed and belittled” her and that she had
“suffered stress and verbal abuse on numerous occasions” as a
result of Mr. Reynolds’s behavior.

Mr. Reynolds was not Ms.

2

No disciplinary action was taken against Dr. Ashley Davidoff
for authorizing the administration of the gadolinium contract to
the pregnant patient, however, he “was told in a very firm way
that this was the department policy, only to administer
gadolinium to a pregnant patient under dire circumstances or
under circumstances considered to be extreme – it has to be used
with extreme caution.”
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Figueroa’s supervisor nor did he have any supervisory authority
over her.

In his view, she was not doing her job, was lazy, and

was there just to collect a paycheck so he had created a list of
responsibilities and a check-off list for certain duties to be
used by Ms. Figueroa and the other tech aids.
On September 17, 2013, Mr. Reynolds attended another
disciplinary meeting with Ms. Ierardi and Human Resources
Administrator, Catherine O’Neill,3 following Ms. Ierardi’s
receipt of complaints from Ms. Figueroa and other department
staff concerning Mr. Reynold’s conduct.

Because Mr. Reynolds

had expressed dissatisfaction with Ms. Knehans, Ms. Leveille
herself accompanied Mr. Reynolds to the meeting.
At the conclusion of the meeting, Mr. Reynolds received a
second Final Warning.

This second Final Warning cited Mr.

Reynolds for his interactions with Ms. Figueroa and for “not
communicating in a respectful collaborative manner with other
staff members and creating and disseminating documents
surrounding responsibilities and departmental procedures [that]
has created an uncomfortable work environment which counteracts
the policies set forth by the Medical Center.”

It further

stated that “[f]ailure to satisfactorily correct the problem(s)
as stated in this warning or any further occurrences in the

3

Catherine O’Neill was formerly known as Catherine Finley.
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future of this type or any other performance or conduct
problems, will result in further disciplinary action including
the possibility of suspension and/or termination.

Immediate and

sustained improvement is required.”
The Hospital issued Mr. Reynolds a Performance Improvement
Plan (“PIP”).

The PIP required Mr. Reynolds to adhere to a 7-

point action plan.

The first point of the PIP required him to

review HR policy HR 5-10, which, among other things, informed
Mr. Reynolds that actions including “[i]nsubordination,”
“[c]onduct contrary to the best interest of St. Elizabeth’s, its
patients or employees, while on or off duty,” “[v]iolation of
patients’ rights/confidentiality,” “[v]iolation of computer
security procedures,” “[f]ailure to perform required job
responsibilities,” “[f]ailure to follow department policies and
policies of St. Elizabeth’s Medical Center,” or “[i]ntentional
disruption of medical center routine,” could result in
disciplinary action up to and including discharge.

The PIP also

required Mr. Reynolds to review the Service Excellence
Standards, which, among other things, informed him that he must
maintain “an atmosphere of friendliness, courtesy and concern
for each patient, visitor, physician and co-worker,” provide
patients “with prompt service, always keeping them informed of
delays and making them comfortable while they wait,” and treat
all . . . co-workers with respect.”
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In addition to reviewing HR policies, the PIP also required
that Mr. Reynolds immediately cease from directing the work of
his co-workers or colleagues, refrain from creating and
disseminating documents that list the responsibilities or tasks
of other co-workers, refrain from creating documents that are
meant to instruct co-workers on departmental
policies/procedures, not address concerns he had of his coworkers’ performance directly with his co-workers, immediately
address any concerns he had regarding the performance of his coworkers with his direct manager, communicate in a collaborative
and respectful way with co-workers, staff members, and patients
throughout the Medical Center, and meet weekly with his manager
to review his progress.

Mr. Reynolds testified that he

understood that a failure to comply with the PIP could lead to
further disciplinary action, including separation from
employment.

Again, Mr. Reynolds did not grieve the second Final

Warning or ask the Union to grieve it on his behalf.
On September 18, 2013, the day following the second
disciplinary meeting, Mr. Reynolds filed an unfair labor
practice charge with the National Labor Relations Board (“NLRB”)
against the Union relating to the Final Warning he received in
July 2013.

Specifically, Mr. Reynolds alleged that “[o]n July

28, 2013, my Union Representative failed to represent me by

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recommending my termination of employment.”

Mr. Reynolds

ultimately withdrew this unfair labor practice charge.
In accordance with the terms of the PIP, Mr. Reynolds was
scheduled to attend a meeting with management on October 4,
2013.

On October 3, 2013, Mr. Reynolds sent an email to Ms.

Leveille “requesting an attorney to represent [him].”

He

indicated that he did “not feel comfortable attending any
further meeting with [his] supervisor and/or H.R. personnel
until [he] ha[d] an attorney present to represent [his]
interests and witness any further discussions.”
Ms. Leveille responded within minutes stating, “We do not
provide an attorney for meeting with management or HR.

You have

the right to have a delegate with you under the contract those
are your rights.”

Mr. Reynolds replied he “would like the Union

to provide[] [him] with an attorney.

That [that] [wa]s [his]

right, and the NLRB as well as [his] attorney ha[d] already
informed [him] of this entitlement.”

Mr. Reynolds never

requested, nor was he denied, a Union delegate at any PIP
meetings.
On October 4, 2013, Mr. Reynolds met with Ms. O’Neill,
Director of Radiology, Ray Wilburn, and Ms. Ierardi, pursuant to
the PIP to discuss several performance deficiencies that had
occurred between their previous meeting and October 4.

Mr.

Reynolds was counseled for making an injured patient wait nine11

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and-a-half hours for a scan that was ordered at 8:00 a.m.

He

was also reprimanded for commenting on the status of an injured
football player’s knee;

technicians are not permitted to

divulge to a patient that they can read the films or think that
they know what the diagnosis may be.

Mr. Reynolds was also

counseled for leaving the hospital while a patient was waiting
to be scanned.

Additionally, he was counseled for failing to

remove duplicate orders from the computer system and failing to
perform normal stocking and cleaning duties.
Following this meeting, Mr. Reynolds emailed Ms. O’Neill,
Mr. Wilburn, and Ms. Ierardi.

Among other things, Mr. Reynolds

complained that he was not provided with an attorney for the
meeting and concluded the email by stating that management “can
inform me of your future list of grievances [about my work
performance] via email.

Otherwise . . . I will need to have an

attorney – provided to me by the Union – present as witness at
any meetings in the future.”
The following day, October 5, 2013, Ms. Ierardi expressed
to Ms. O’Neill and Mr. Wilburn her view that Mr. Reynolds’s
refusal to attend future PIP meetings constituted
insubordination and further informed them that she had received
complaints from other techs that Mr. Reynolds “did not
communicate with any of them yesterday, was on his cell phone
and is passive aggressive.”

Moreover, that same day, Mr.
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Reynolds used a diphenhydramine tablet to counteract a patient’s
allergic reaction to the contrast medium.

Rather than calling

the hospital pharmacy to replace the tablet, he left a stickynote with a patient’s name and the medicine used.
On October 11, 2013, Ms. Ierardi terminated Mr. Reynolds’s
employment in consultation with Ms. O’Neill and Gail Flynn,
Director of Human Resources.

At a meeting, Ms. O’Neill and Mr.

Wilburn notified Mr. Reynolds of his termination and explained
that his ongoing performance issues and his refusal to attend
weekly review meetings with his supervisor constituted
violations of his PIP and that the Hospital had “lost faith” in
Reynolds as an employee.

Mr. Reynolds was represented by Union

delegate, Adam Bezza, at this meeting.
5.

The Grievance Process

On October 28, 2013, following Mr. Reynolds’s termination,
Mr. Bezza filed a grievance on Mr. Reynold’s behalf challenging
the termination as without just cause.
On November 26, 2013, Ms. Eckstein notified Mr. Reynolds
that Union AO, Bruce Fleischer, was assigned to handle his
grievance.

In preparation for the Step 2 grievance hearing, Mr.

Fleischer took various steps, including: speaking to Mr.
Reynolds several times by telephone and email; speaking with
Union delegates, Ms. Knehans and Mr. Bezza, as well as Ms.
Ierardi and Ms. O’Neill; requesting and obtaining information
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from the Hospital related to its decision to terminate Mr.
Reynolds; and reviewing Mr. Reynolds’s personnel file, including
the two Final Warnings and the PIP.

Mr. Fleischer familiarized

himself with details of both Final Warnings, but he did not
investigate the underlying facts because they were not grieved
and therefore could not be challenged independently during the
grievance process.
Ms. Flynn heard the Step 2 grievance on January 24, 2014.
Mr. Fleischer reviewed the entirety of Mr. Reynolds’s
disciplinary history since the contrast incident and addressed
each allegation to argue that the Hospital did not have just
cause to terminate Mr. Reynolds.

Mr. Reynolds initially felt

supported by Mr. Fleischer.4
On February 1, 2014, Mr. Reynolds emailed Mr. Fleischer
about the Step 2 grievance.

In this email, Mr. Reynolds noted

that during the hearing, Ms. Flynn asked about his first Final
Warning and why it was not grieved, and that he and Mr.
Fleischer had “discussed the reason thoroughly.”

In his

response, Mr. Fleischer explained that “[u]nfortunately, we
can’t change the interactions that went on previously, we need
to figure out the best way forward.”

4

Mr. Reynolds later testified that Mr. Fleischer “seemed very
sympathetic to the situation, and he was the first one from the
union that had seemed to see the logic in [his] complaint.”
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Several days later, on February 4, 2014, Ms. Flynn issued a
Step 2 grievance response denying Mr. Reynolds’s termination
grievance.

Mr. Fleischer notified Mr. Reynolds of Ms. Flynn’s

decision and timely moved the grievance to Step 3.
The Step 3 grievance hearing was held on April 23, 2014.
Justin May, in-house counsel for the Hospital, heard the
grievance.

As he did at Step 2, Mr. Fleischer reviewed the

entirety of Mr. Reynolds’s disciplinary history since the
contrast incident and addressed each allegation to argue that
the Hospital did not have just cause to terminate Mr. Reynolds.
Mr. Reynolds later testified that he felt Mr. Fleischer’s
presentation at Step 3 was full and fair on his behalf.

He also

testified that he had the opportunity to give his side of the
story in his own words.
At the end of the Step 3 grievance hearing, Mr. Fleischer
stated that the Union was open to considering a settlement
agreement and Mr. May agreed to consider it upon receipt of a
proposal from the Union.

Mr. Fleischer raised the possibility

of settlement based on an earlier conversation with Mr. Reynolds
in which Mr. Reynolds expressed that he was very open to that
possibility.
On May 19, 2014, Mr. May issued a Step 3 grievance response
denying Mr. Reynolds’s grievance based on his disciplinary
history and continued poor performance.
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Following receipt of the Step 3 grievance response, Mr.
Fleischer consulted with Ms. Leveille, Ms. Eckstein, and the
Union’s legal counsel to determine whether the Union should
advance Reynolds’ grievance to arbitration.

Mr. Fleischer

reviewed Mr. Reynolds’s file with Ms. Eckstein and expressed his
belief that the Union would not be successful at arbitration
because Reynolds was a short-term employee with several
disciplinary actions and performance concerns on his record.
As Vice President, Ms. Eckstein was the final decision
maker as to whether the Union advanced grievances to
arbitration.

Based on her twenty-five years of experience in

processing grievances and determining their merit, Ms. Eckstein
attempts to examine the record by looking at the relevant
factors in the same way as an arbitrator.

Ms. Eckstein spent

considerable time reviewing Mr. Reynolds’s case and discussing
the merits with Mr. Fleischer.

She did not conduct an

independent investigation of the facts underlying the two Final
Warnings because they were not grieved and, therefore, not
relevant to her decision as to whether to proceed to
arbitration.
Ultimately, Ms. Eckstein determined that based on the two
Final Warnings that were not grieved, the Hospital’s ongoing
concerns with Mr. Reynolds’s poor performance as evidenced by
staff and patient complaints, lack of disparate treatment, and
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his failure to fully comply with the terms of the PIP, the Union
was unlikely to prevail at arbitration.

Accordingly, Ms.

Eckstein decided that the Union would not move Mr. Reynolds’s
grievance to arbitration.
On May 23, 2014, the Union and the Hospital agreed to
extend the time for submitting the grievance to arbitration to
allow Mr. Reynolds to exercise his own internal appeal.
On May 27, 2014, the Union advised Mr. Reynolds that it
would not submit his grievance to arbitration.
6.

The Internal Union Appeal Process

On June 2, 2014, Mr. Reynolds appealed the Union’s decision
not to arbitrate his termination grievance.
While the Union was in the process of setting up Mr.
Reynolds’s appeal hearing, Mr. Fleischer and Mr. May discussed
the possibility of settling the grievance.

On or about

September 2014, the Hospital and the Union reached a tentative
settlement that the Union judged to be reasonable.

On September

17, 2014, Mr. Fleischer telephoned Mr. Reynolds and left a
message advising him that the Union and the Hospital had reached
a settlement the Union considered reasonable and asked Mr.
Reynolds to respond.

He sent a letter to Mr. Reynolds the next

day conveying the same message.
Shortly thereafter, in a letter dated September 23, 2014,
Mr. Reynolds’s counsel contacted the Union and alleged that
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“1199 SEIU United Healthcare Workers East has consistently
breached its duty of fair representation to Michael Reynolds by
failing to properly pursue his grievance against St. Elizabeth’s
Health Center.”

The next day, Ms. Eckstein responded to Mr.

Reynolds’s letter, including a copy of the proposed settlement
agreement with the letter.

She advised Mr. Reynolds that he had

the option of accepting the settlement or proceeding with the
internal appeal.
Several months later, on or about January 6, 2015, Mr.
Reynolds filed an action in state court, later removed to this
court, in which he alleged that the Union “failed to diligently
investigate or pursue the Plaintiff’s grievance at Step 2 or
Step 3 of the grievance procedure,” failed “to timely file and
pursue arbitration of the Plaintiff’s grievance . . .,” and that
such alleged failure was “arbitrary, capricious and in bad
faith.”

Mr. Reynolds served his complaint on the Union on or

about February 12, 2015.
On February 17, 2015, the Union wrote to Mr. Reynolds’s
counsel and enclosed again the information concerning the
proposed settlement provided in the Union’s September 24, 2014
letter.
On February 26, 2015, the Union advised Mr. Reynolds that
his internal appeal was still available and confirmed that the

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Hospital had agreed to arbitrate the termination in the event
the Arbitration Appeals Committee directed arbitration.
On April 1, 2015, the Union obtained the Hospital’s
agreement, in writing, that should the Union’s internal process
result in a decision to arbitrate Mr. Reynolds’s termination
grievance, the Hospital would arbitrate the grievance without
challenging the timeliness of its submission to arbitration.
On April 14, 2015, the parties agreed that the Union would
process Mr. Reynolds’s appeal of the Union’s decision not to
arbitrate his termination grievance.

On that same day, Mr.

Reynolds agreed to dismiss Reynolds v. 1199 SEIU United
Healthcare Workers East & Steward St. Elizabeth’s Medical Center
of Boston, Inc., No. 15-cv-10417 without prejudice.
On April 23, 2015, Mr. Reynolds had his first hearing
before the Arbitration Appeals Committee.

At that hearing, Mr.

Fleischer defended the Union’s decision not to arbitrate Mr.
Reynolds’s termination grievance.

Mr. Fleischer went through

each event leading to Mr. Reynolds’s termination, beginning with
the first Final Warning that was not grieved, the second Final
Warning that was not grieved, and Mr. Reynolds’s termination for
failing to comply with the terms of the PIP.

He then described

each stage of the grievance process, explained why the Union
believed that it could not prevail at arbitration, and concluded
with the fact that the Union was able to reach a tentative
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settlement with the Hospital that it judged to be reasonable.
Ms. Leveille and Ms. Knehans were also present to answer the
Committee’s questions about their involvement in Mr. Reynolds’s
case.
After Mr. Fleischer’s presentation, Mr. Reynolds was
afforded an opportunity to present the facts surrounding his
termination.

Mr. Reynolds provided the Committee with an

affidavit he prepared outlining his position and further
explaining the facts from his perspective. The Committee asked
him several questions about his case.
On or around May 1, 2015, the Arbitration Appeals Committee
Chair, Celia Wcislo, notified Mr. Reynolds that the Committee
“voted unanimously to uphold the Union’s decision to not move
forward to arbitration.”

She noted that “the evidence and

arguments [Mr. Reynolds] offered did not show that the Union
ha[d] a reasonable likelihood of overturning [the Hospital’s]
decision that there was just cause to terminate [his]
employment.”

Ms. Wcislo also advised Mr. Reynolds of his right

to appeal the decision.
By letter dated May 4, 2015, Mr. Reynolds appealed the
Arbitration Appeals Committee’s decision.
On September 18, 2015, the Mr. Reynold’s second appeal
hearing was held before the Union’s Massachusetts Regional
Hearing and Appeals Board.

Mr. Fleischer again defended the
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Union’s decision not to arbitrate Mr. Reynolds’s termination
grievance and Ms. Leveille was present to answer questions about
her role in Mr. Reynolds’s case.

Mr. Reynolds provided the

Appeals Board with the same affidavit he had distributed at the
first appeal hearing.

The Board then asked him several

questions about his case.
By letter dated September 23, 2015, the Appeals Board
notified Mr. Reynolds that the Board “voted unanimously to deny
[his] appeal because it was clear that the union would have no
reasonable likelihood of prevailing in an arbitration case.”
The letter further informed Mr. Reynolds that the Hospital was
still prepared to honor the tentative settlement agreement it
reached with the Union the previous year and requested that Mr.
Reynolds notify the Union whether he was interested in accepting
the Hospital’s offer.
B.

Procedural Background
On March 15, 2016, Mr. Reynolds filed the complaint in this

case in the Superior Court for the Commonwealth of Massachusetts
on March 15, 2016.

He alleged that the Union “failed to

diligently investigate or pursue the Plaintiff’s grievance at
Step 2 or Step 3 of the grievance procedure,” failed “to pursue
arbitration of the Plaintiff’s grievance . . .,” and that such
alleged failure was “arbitrary, capricious, and in bad faith.”

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On June 15, 2016, pursuant to 28 U.S.C. §§ 1331, 1441, and
1446, the Hospital removed the case to this court.

The Union

filed its consent to removal of the action on June 23, 2016.
In due course, the Union filed a motion for summary
judgment on Count I of Mr. Reynolds’s complaint.

On the same

day, the Hospital filed a motion for summary judgment on both
Counts I and II.

The Defendants have also filed a joint motion

to strike portions of Mr. Reynolds’s affidavit in support of his
oppositions to Defendants’ motions for summary judgment.
II. STANDARD OF REVIEW
Summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

When assessing a motion for summary judgment,

“the court must consider the facts in the light most favorable
to the party opposing the motion.”

Soar v. Nat’l Football

League Players’ Ass’n, 550 F.2d 1287, 1289 n.4 (1st Cir. 1977)
(citation omitted).
It is well-established that “[c]onventional summary
judgment practice requires the moving party to assert the
absence of a genuine issue of material fact and then support
that assertion by affidavits, admissions, or other materials of
evidentiary quality.”

Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003) (citation omitted).
22

“Once the movant has

Case 1:16-cv-11119-DPW Document 53 Filed 03/07/19 Page 23 of 51

done its part, the burden shifts to the summary judgment target
to demonstrate that a trialworthy issue exists.”
omitted).

Id. (citation

“Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial.”

Scott v. Harris, 550 U.S. 372, 380

(2007) (citation and internal quotation marks omitted).
III. ANALYSIS
Before turning to the merits of the summary judgment
motion, I must determine what evidence may make up the summary
judgment record.

Thus, I address the Defendants’ Motion to

Strike.
A.

Defendants’ Joint Motion to Strike
Defendants claim that portions of Mr. Reynolds’s affidavit

must be struck because statements asserted therein directly
contradict his sworn deposition testimony and/or cannot be
considered at summary judgment consistent with Fed. R. Civ. P.
56(c) because they constitute inadmissible hearsay, arguments,
or conclusions and are not based on Mr. Reynolds’s personal
knowledge.
1.

Contradictory Statements

The First Circuit has made clear that “[w]hen an interested
witness has given clear answers to unambiguous questions, he
cannot create a conflict and resist summary judgment with an
affidavit that is clearly contradictory, but does not give a
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satisfactory explanation of why the testimony is changed.”
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st
Cir. 1994).

However, the First Circuit has clarified that “[a]

subsequent affidavit that merely explains, or amplifies upon,
opaque testimony given in a previous deposition is entitled to
consideration in opposition to a motion for summary judgment.”
Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 26 (1st
Cir. 2002).
a. Paragraph 23
In ¶ 23, Mr. Reynolds asserts, “Following the meeting, I
told Kristin Knehans that I wanted to grieve the final warning.”
During his deposition, however, Mr. Reynolds was asked,
“[t]here was testimony yesterday that you didn’t grieve either
of the two final warnings, and you didn’t ask the union to
grieve either of the two final warnings, did you?”

After some

clarification, his response to this question was, “No.”
Mr. Reynold’s testimony is a clear contradiction to his
statement in his affidavit stating that he told Ms. Knehans that
he wanted to grieve the final warning.

This sentence in ¶ 23 is

stricken.
In ¶ 23, Mr. Reynolds also wrote, “Kristine Knehans did not
file a grievance on my behalf and I did not follow up on the
matter because she told me the union thought I should be fired.”
Defendants call my attention to a portion of Mr. Reynolds’s
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deposition testimony in which he states that he read the Union’s
grievance procedure that allows either the worker or the Union
delegate to file a grievance on behalf of the worker.

Although

this testimony accurately depicts what the Union contract
provided, it does not portray Mr. Reynolds’s understanding at
the time.

Immediately after the designated testimony, Mr.

Reynolds was asked, “So you understood that to mean that you
could file a grievance?”

He responded, “Not at that time, no, I

didn’t know how it worked.
help.”

That is why I went to Kristin for

Neither Defendants’ designated portion of Mr. Reynolds’s

testimony nor this supplementary statement contradicts Mr.
Reynolds’s statement in his affidavit.

Rather, Mr. Reynolds’s

response in some ways supplements his statement that Ms. Knehans
did not file a grievance on his behalf.

Accordingly, I do not

find a contradiction here and will not strike this portion of
¶ 23.
b. Paragraph 24
In ¶ 24, Mr. Reynolds stated, “During the September 17,
2013 meeting, MaryEllen Leveille, who was supposed to represent
me, repeatedly argued against my position and took St.
Elizabeth’s position.”

In his deposition, Mr. Reynolds stated

that Ms. Ierardi “wanted an agreement made that [he] felt was
unfair, and felt that [Ms. Leveille] should have stood up for
[him] and rejected and she didn’t.”
25

He further indicated that

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after he spoke to Ms. Leveille privately about his concerns,
“she consented to advocating on [his] behalf.”

Mr. Reynolds was

then specifically asked, “And when she went into the meeting,
she did so; she advocated the position that you had laid out for
her?”

He replied, “Yes.”

Ultimately, Ms. Leveille succeeded in

getting a condition of the PIP changed.

Mr. Reynolds’s

deposition, although it indicates there may have been some
difference of opinion in the beginning between him and Ms.
Leveille, maintains that Ms. Leveille did indeed advocate the
position that he had laid out for her and did not “argue against
his position” at the hearing.

This testimony is contradicted by

Mr. Reynolds’s subsequent affidavit.
Mr. Reynolds attempts to obscure this specific
contradiction by pointing to other instances in his deposition
in which he testified that Ms. Leveille had advocated against
him.

For example, he contends that he testified that Ms.

Leveille was present at the Step 2 meeting “because she was
advocating against [him] at the meetings.”

Mr. Reynolds fails

to recognize that this meeting was different than the September
17, 2013 meeting.

Consequently, I do not find his argument

persuasive in this regard and, therefore, I strike this portion
of ¶ 24 as contradictory of his deposition testimony.
c. Paragraph 32
In ¶ 32 of his affidavit, Mr. Reynolds avers that, “[o]n or
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about November 26, 2013, I contacted Enid Eckstein a VicePresident at SEIU and informed her that I did not want MaryEllen
Leveille handling my grievance because I did not believe that
she was acting on my behalf but was in fact supporting St.
Elizabeth’s.

In response, Enid Eckstein sarcastically said,

‘you expect the Union to help you after you filed a complaint
with the NLRB.’

I was shocked by her statement.”

During his deposition Mr. Reynolds was asked, “Did you play
any role in that – with respect to making a request concerning
who would represent the union in the grievance of your
termination?”

He answered, “Well, I was very dissatisfied with

[Ms. Leveille’s] performance, so I think I probably did request
if I could have someone else.”
this request to Ms. Eckstein.
inconsistent with ¶ 32.

He indicated that he forwarded
Nothing in his testimony is

Consequently, I cannot strike this

portion of his affidavit.
d. Paragraph 34
In ¶ 34, Mr. Reynolds claimed, “On January 24, 2014, there
was a Step 2 hearing on my grievance at which I was represented
by Bruce Fleischer.

Gail Flynn, Director of Human Resources for

St. Elizabeth’s represented the hospital.

During that hearing,

the first issue raised by Gail Flynn was the Contrast Incident
and I explained that I had done nothing wrong.”

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Defendants identify the following deposition testimony as
contradicting this statement:
Q. If I represent to you that on January 24, 2014 you
attended a step two grievance meeting with Bruce
Fleischer representing the union, and Gail Flynn
representing the hospital, do you recall that meeting?
A. Those were the only ones there?
Q. (Nods head.)
A. No, I don’t.
. . .
Q. So I am asking about, I just want [to] be sure that
you have told us everything that you remember, if
anything, about the step two meeting with Gail Flynn
and Bruce.
A. No, I don’t have anything further I can offer.
This designation does not contradict what Mr. Reynolds
stated in his affidavit.

Although he did not remember much of

the Step 2 meeting at the time of his deposition, there is no
reason that he could not have remembered this meeting at a later
time, i.e., when he was drafting his affidavit.

Because I

find no contradiction between this statement and Mr. Reynolds’s
affidavit, I will not strike this portion of his affidavit.
e. Paragraph 35
In ¶ 35, Mr. Reynolds maintains, “On April 23, 2014, there
was a Step 3 hearing on my grievance at which I was once again
represented by Bruce Fleischer.
officer for St. Elizabeth’s.

Justin May was the hearing

Once again, one of the main

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issue[s] raised by the hearing officer was the contrast
incident.”
Defendants have focused my attention on the phrase “by the
hearing officer.”

Although Mr. Reynolds’s identified deposition

testimony does not indicate that Mr. May raised the contrast
incident, he does indicate that Mr. Fleischer presented the
contrast in pregnancy policies to Mr. May.

In his deposition,

Mr. Reynolds does not unambiguously state that Mr. May was the
one to raise this issue.

On the other hand, his testimony

cannot be read to indicate that it was Mr. Fleischer who raised
the issue.

Therefore, I find no disabling inconsistencies

between Mr. Fleischer’s statement and his deposition and will
not strike this portion of his affidavit.
f. Paragraph 37
In ¶ 37, Mr. Reynolds asserts, “[a]fter I received the
[Step 3 grievance] response, I told Bruce Fleischer that I
wanted to arbitrate my grievance.

Bruce Fleischer told me he

didn’t believe in arbitration.”
During his deposition, Mr. Reynolds was shown his
handwritten notes.

Several questions were asked of him

regarding the meeting he had with Mr. Fleischer.

Mr. Reynolds’s

attention was focused on the first line of his notes in which he
wrote, “Bruce F. states he doesn’t believe arbitration.”

He was

asked whether he recalled what the end of that sentence was and
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his reply was, “No.”

Mr. Reynolds’s notes are in alignment with

his statement in his affidavit.

There is no reason for me to

find inconsistency on grounds that he could not recall what the
end of the sentence was.

Accordingly, I will not strike this

portion of his affidavit.
2.

Hearsay Statements

Rule 56(c)(4) of the Federal Rules of Civil Procedure
states that “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.”

Therefore, it is well-established that “[a] genuine

issue of material fact can be created only by materials of
evidentiary quality.”

Hannon v. Beard, 645 F.3d 45, 49 (1st

Cir. 2011) (citation omitted).

Accordingly, “hearsay evidence

cannot be considered on summary judgment for the truth of the
matter asserted.”

Id. (internal quotation marks and citation

omitted).
Defendants argue that Mr. Reynolds’s affidavit contains a
multitude of statements that are inadmissible as evidence
because they are hearsay statements.

The following is a list of

the statements that Defendants move to strike:
¶ 7: “Prior to commencement of the MRI study, the [sic] Dr.
Samarth S. Chittargi (hereinafter ‘Dr. Chittargi’) called me and

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changed the order and requested that the MRI examination include
a pituitary study.”
¶ 8: “When Dr. Chittargi told me that he wanted a pituitary
study, I told him that I did not think that we could do it and
because it would require contrast and the patient was pregnant.
I also verbally informed Dr. Chittargi about the hospital’s
protocol regarding the administration of gadolinium contrast to
a pregnant woman which states that ‘Gadolinium based agents
should be administered in pregnancy only with extreme caution
and avoided if at [sic] possible…”.
¶ 9: “Dr. Chittargi, with confidence, firmly informed me that he
still wanted the contrast administered to the patient and that
he would speak to the patient. At no time did I tell Dr.
Chittargi what test to do or that he had to administer
contrast.”
¶ 11: “Dr. Chittargi called me back and informed me that the
patient was consenting to the examination with contrast and
reiterated that he wanted the MRI examination to include
contrast. Dr. Chittargi also stated that he had spoken to Dr.
Ashley Davidoff (hereinafter ‘Dr. Davidoff’) and that he had
approved the administration of the contrast.”
¶ 12: “I consulted with the covering radiologist, Dr. Davidoff
who told me that he had spoken to Dr. Chittargi and that we were
going to proceed with the MRI with contrast. I changed the
order in the computer as instructed by Dr. Chittargi to include
a pituitary protocol.”
¶ 16: “[Dr. Schwartz] reproached me stating that ‘we never
inject a pregnant patient with gadolinium.’”
¶ 23: “Kristen Knehans told me that there was no use in filing a
grievance because the union thought I should be fired for the
contrast incident. Kristin Knehans did not file a grievance on
my behalf and I did not follow up on the matter because she told
me the union thought I should be fired.”
¶ 32: “In response, Enid Eckstein sarcastically said ‘you expect
the Union to help you after you filed a complaint with the
NLRB.’”
¶ 34: “During that hearing, the first issue raised by Gail Flynn
was the Contrast Incident and I explained that I had done
nothing wrong.”
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¶ 35: “Once again, one of the main issue raised by the hearing
officer was the contrast incident.”
¶ 37: “After I received the response, I told Bruce Fleischer
that I wanted to arbitrate my grievance. Bruce Fleischer told
me he didn’t believe in arbitration.”
¶ 445: “At the April 23, 2005 [sic] hearing, both Bruce Fleischer
and Mary Ellen LeVeille told the appeal panel that the contrast
incident was a fire-able offense and that the union had saved my
job. This was completely false. Bruce Fleischer and Mary Ellen
LeVeille both recommended to the appeal panel that they uphold
the decision not to arbitrate my grievance.”
¶ 48: “At the September 18, 2015 hearing, Bruce Fleischer and
Mary Ellen LeVeille once again both told the appeal panel that
contrast incident was a fire-able offense and that the union had
saved my job. Bruce Fleischer and Mary Ellen LeVeille once
again both recommended to the appeal panel that they uphold the
decision not to arbitrate my grievance.”
Mr. Reynolds claims that the third-party statements
contained in paragraphs 7, 8, 9, 11, 12, 16, 23, 32, 34, 35, 37,
44, and 48 of his affidavit are not hearsay because they are not
offered to prove the truth of the matters contained therein.
find merit to this argument.

I

These statements are “verbal acts”

and offered, not to show the truth of the matters asserted, but
for the fact that the statements were made.

See Rivot-Sanchez

v. Warner Chilcott Co., 707 F. Supp. 2d 234, 261 (D.P.R. 2010).
Furthermore, these statements are “admissible to the extent
‘offered not to prove the truth of the matter asserted but
merely to show context — such as . . . what effect the

5

The language quoted here actually comes from the statement in ¶
46.
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statement[s] had on the listener.’”

Id. (quoting United States

v. Cruz-Diaz, 550 F.3d 169, 176-77 (1st Cir. 2008)) (alterations
in original).

Mr. Reynolds’s conversations with Dr. Chittargi

and Dr. Davidoff are examples of Mr. Reynolds’s establishing the
context.

Moreover, his conversations with Ms. Knehans, Mr.

Fleischer, Ms. Leveille and Ms. Flynn all show the effect that
the statements had on the listener, i.e., Mr. Reynolds himself.
Accordingly, I deny Defendants motion to strike with respect to
the statements outlined above.
3.

Statements Not Based on Personal Knowledge

Affidavits submitted in opposition to a motion for summary
judgment that do not “provid[e] specific factual information
made on the basis of personal knowledge . . . are insufficient”
to defeat summary judgment.

Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (citation
omitted).

Nevertheless, a “party’s own affidavit, containing

relevant information of which he has first-hand knowledge, may
be self-serving, but it is nonetheless competent to support or
defeat summary judgment.”

Id. (quoting Cadle Co. v. Hayes, 116

F.3d 957, 961 n.5 (1st Cir. 1997)) (internal quotation marks
omitted).
Defendants further contend that Mr. Reynolds’s affidavit
makes numerous statements that are not based on his personal
knowledge and are not supported by citations to any competent
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evidence.

The following is a list of the statements that

Defendants move to strike:
¶ 9: “Dr. Chittargi, with confidence, firmly informed me that he
still wanted the contrast administered to the patient and that
he would speak to the patient.”
¶ 12: “At St. Elizabeth’s, it was common and accepted practice
for MRI techs to change orders in the computer on instruction
from the ordering physicians.”
¶ 18: “Despite my explanation, Dr. Schwartz attempted to place
blame on me for administering the gadolinium contrast despite
the fact I was instructed to do so by the ordering physician and
covering radiologist.”
¶ 21: “I believed I was being made a scapegoat by the hospital.”
¶ 25: “The second final warning which alleges that I did not
communicate with an MRI Aide and other staff members in a
respectful collaborative manner is completely false and pretextual.”
¶ 27: “On October 4, 2013, I was called into another meeting and
once again was subjected to additional false accusations about
my job performance which were all a pretext to fire me.”
¶ 28: “The allegations made against me in the October 4, 2013
meeting were completely false and were just another effort by
Judith Ierardi to harass me into quitting my job.”
¶ 36: “On May 19, 2014, Justin May denied my grievance in part
on the grounds of the final written warning I received following
the Contrast Incident.”
Mr. Reynolds contends that he is entitled to testify as to
his observations of that affect or tone of voice of persons
speaking to him, as these statements are based on what he heard
and saw.

On these grounds with those limitations, the

statements are not subject to a motion to strike because they
are all within Mr. Reynolds’s personal knowledge.

He was

present with the doctors as well as when the meetings occurred
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and the final warnings were issued.

Moreover, as an MRI tech,

he was arguably privy to the common and accepted practice for
MRI techs at the Hospital.
Accordingly, I deny Defendants’ motion to strike with
respect to the above outlined paragraphs.
4.

Argumentative and Conclusory Statements

Affidavits submitted in opposition to a motion for summary
judgment also “‘may not contain arguments or conclusory
assertions’ that would not be admissible at trial.”

Fin. Res.

Network, Inc. v. Brown & Brown, Inc., 867 F. Supp. 2d 153, 170
(D. Mass. 2012) (quoting Murphy v. Ford Motor Co., 170 F.R.D.
82, 85 (D. Mass. 1997)).

“Without any specific factual

knowledge to support [a] statement, it is a mere conclusion that
cannot serve as probative evidence.”

Navedo v. Nalco Chem.,

Inc., 848 F. Supp. 2d 171, 179-80 (D.P.R. 2012).
Defendants claim that Mr. Reynolds’s affidavit contains
several arguments and conclusory assertions that would not be
admissible at trial.

The following is a list of the statements

that Defendants move to strike:
¶ 1: “Prior to July 2013, my employment record with St.
Elizabeth’s was excellent.”
¶ 20: “This Final Warning was completely unwarranted as I had
followed the policy to the letter.”
¶ 21: “I was shocked that I had been issued a final warning for
the contrast incident as I had completely and precisely followed

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St. Elizabeth’s protocol. I believed I was being made a
scapegoat by the hospital.”
¶ 24: “Following the contrast incident, I was subjected to
repeated unwarranted criticism by my manager Judith Ierardi.”
¶ 25: “The second final warning which alleges that I did not
communicate with an MRI Aide and other staff members in a
respectful collaborative manner is completely false and pretextual. I have always worked in a respectful and collaborative
manner with all staff members.”
¶ 27: “On October 4, 2013, I was called into another meeting and
once again was subjected to additional false accusations about
my job performance which were all a pretext to fire me. . . . I
was also reprimanded for leaving at the end of my shift when
there was another patient to scan. Once again this was a false
and unwarranted criticism. . . . I was also reprimanded for
failing to remove duplicate orders from the computer systems and
failing to perform normal stocking and cleaning duties which are
completely false.”
¶ 28: “The allegations made against me in the October 4, 2013
meeting were completely false and were just another effort by
Judith Ierardi to harass me into quitting my job.”
¶ 30: “On October 11, 2013, St. Elizabeth’s wrongfully
terminated my employment without just cause. . . . St.
Elizabeth’s breached the Collective Bargaining Agreement by
terminating my employment without just cause. I have read that
one of the reasons that I was fired is that I refused to attend
my PIP meetings. This statement is completely false.”
¶ 46: “At the April 23, 2005 [sic] hearing, both Bruce Fleischer
and Mary Ellen LeVeille told the appeal panel that the contrast
incident was a fire-able offense and that the union had saved my
job. This was completely false.”
Mr. Reynolds indicates that many of the incidents described
in the above paragraphs were “unwarranted,” “pretextual,” or
“completely false.”

Without more, I find these statements are

conclusory; Mr. Reynolds’s affidavit has not provided me with
specific factual knowledge to support his statements.
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Furthermore, it does not escape me that Mr. Reynolds does
not specifically challenge Defendants’ contentions regarding the
grounds on which these specific paragraphs should be stricken.
Therefore, to the extent that Mr. Reynolds’s affidavit includes
such conclusory statements not based upon personal knowledge,
those statements will be given no weight in opposition to
Defendants’ motion for summary judgment.
B.

Defendants’ Motions for Summary Judgment
Each Defendant filed a separate motion for summary

judgment.

The Union argues that summary judgment is appropriate

because the cause of action arose more than six months prior to
filing the complaint and is therefore barred by the statute of
limitations.6

Alternatively, the Union contends that its motion

for summary judgment should be granted because the undisputed

6

The Union accepts it did not plead the statute of limitations
as an affirmative defense in its Answer, as required by Fed. R.
Civ. P. Rule 8(c).
[Dkt. No. 51 at 4].
Despite this, I do
not find that the Union waived the defense. See Saucier v.
Warden, New Hampshire State Prison, 215 F.3d 1312 (1st Cir.
2000) (unpublished opinion) (per curiam) (no waiver of statute
of limitations defense as plaintiff did not assert any prejudice
attributable to the late raising of the defense). Here, there
is no prejudice because the co-defendant, the Hospital, had
already raised the affirmative defense of statute of limitations
in its Answer to Mr. Reynold’s complaint. See Ringuette v. City
of Fall River, 146 F.3d 1, 4 (1st Cir. 1998) (failure to raise
affirmative defense in answer did not prejudice plaintiff as codefendant raised it in their answer and plaintiff’s position as
to affirmative defense was the same as to both defendants).
As
a result, Mr. Reynolds was already on notice and therefore the
Union’s failure to plead was therefore “harmless”. See In re
Cumberland Farms, Inc., 284 F.3d 216, 226 (1st Cir. 2002).
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facts establish that the Union did not breach its duty of fair
representation.

Specifically, the Union claims that it

adequately investigated Mr. Reynolds’s grievance and properly
represented him at all stages of the grievance procedure and
that its decision not to advance Mr. Reynolds’s grievance to
arbitration falls within the Union’s broad discretion.
For its part, the Hospital argues at the threshold that
Plaintiff’s claim is barred by the six-month statute of
limitations.

The Hospital also argues that the Union did not

breach its duty of fair representation and that it did not
breach the CBA.

The Hospital specifically claims that there is

no evidence that it discharged Mr. Reynolds without just cause
in violation of the CBA.
Because the two motions are mutually reinforcing, I will
address the contentions by topic and not separately as to the
respective defendants.
1.

Statute of Limitations

The six-month statute of limitations prescribed by § 10(b)
of the National Labor Relation Act applies to hybrid actions,
such as the current case.

See DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151, 170-72(1983); Adorno v.
Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006);
Graham v. Bay State Gas Co., 779 F.2d 93, 94 (1st Cir. 1985).
“A hybrid action is one in which a union member brings a section
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301 claim against his or her employer and a duty of fair
representation claim against the union.”
94.

Graham, 779 F.3d at

Such a cause of action in a hybrid claim “arises when the

plaintiff knows, or reasonably should know, of the acts
constituting the union’s alleged wrongdoing.”

Id. (citation

omitted).
Mr. Reynolds filed the operative complaint on March 15,
2016.
a. When the Cause of Action Arose
The first inquiry in determining whether Mr. Reynold’s
claims are time barred is determining when his cause of action
arose.
On May 27, 2014, the Union informed Mr. Reynolds that it
decided not to pursue his termination grievance to arbitration
and notified him of his right to appeal that decision.

By

September 17, 2014, Mr. Fleischer, on behalf of the Union, and
the Hospital had reached a tentative settlement that the Union
considered reasonable.

Mr. Reynolds did not respond to Mr.

Fleischer’s attempt to contact him regarding the settlement.
Rather, on September 23, 2014, by letter, Mr. Reynolds, through
his counsel, accused the Union of a breach of its duty of fair
representation “by failing to properly pursue his grievance
against St. Elizabeth’s Health Center.”

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A similar situation was presented in Graham where the
“appellant had notice of the union’s alleged wrongdoing no later
than March 2, 1982, about ten months before he filed suit.”
F.2d at 94.

779

On that date, “the appellant had actual notice of

the acts constituting the union’s alleged wrongdoing . . . when
his wife met with the [defendant’s] officer . . . [and] after
being told that the union would not get involved in her
husband’s case, [she] told the . . . officer that she and her
husband would seek legal representation.”

Id.

Consequently,

the First Circuit concluded that the appellant’s action was time
barred.

Id.

Similarly, in Silva v. Steelworkers’ Union Local 8751, Civ.
No. 13-13051-GAO, 2017 WL 1227923, at *1 (D. Mass. Mar. 31,
2017), Judge O’Toole found that the cause of action arose when
plaintiff’s lawyer sent a letter to the defendant Union
explicitly threatening to bring a claim before the National
Labor Relations Board and in Federal Court for breach of its
duty of fair representation.

Judge O’Toole

held this letter

“establishe[d] [not only] that the plaintiff reasonably should
have known of omissions to act that would support a plausible
claim of breach of the duty, but that he actually did know.” Id.
Accordingly, since the action was commenced more than six months
after that letter, he granted the union’s motion for summary
judgment as the cause of action was time barred.
40

Id.

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By sending the September 23, 2014, letter, Mr. Reynolds’s
counsel did precisely what plaintiff’s counsel did in Silva.
Accordingly, Mr. Reynolds had notice of the Union’s alleged
wrongdoing no later than September 23, 2014 date, approximately
18 months before Mr. Reynold’s filed the complaint before me.
b. Tolling
The second inquiry is to determine whether, and to what
extent, Mr. Reynold’s cause of action was tolled.
As soon as “the statute of limitations begins to run, it
may be tolled while an employee is pursuing formal or required
intra-union procedures.”

Yordan v. Am. Postal Workers Union,

AFL-CIO, 293 F.R.D. 91, 97 (D.P.R. 2013) (citations omitted).
However, a “plaintiff must make diligent efforts to pursue
internal appeals to toll the statute.”
omitted).

Id. at 98 (citations

Pursuing an internal appeal only has the effect of

tolling the statute of limitations and does not entitle a
plaintiff to a new six-month period afterwards.

Howell v. Gen.

Motors Corp., 19 F. App'x 163, 168 n.5 (6th Cir. 2001).
Additionally, the filing of a complaint that is
subsequently dismissed does not toll the statute of limitations.
See Jorge v. Rumsfeld, 404 F.3d 556, 563 (1st Cir. 2005) (”A
voluntary dismissal without prejudice results in a tabula rasa.
It renders the proceedings null and void and leaves the parties
in the same position as if the action had never been
41

Case 1:16-cv-11119-DPW Document 53 Filed 03/07/19 Page 42 of 51

prosecuted.”) (citation omitted).

Thus, the statute of

limitations was not tolled by Mr. Reynolds filing his first
complaint on January 6, 2015 which was subsequently voluntarily
dismissed on April 14, 2015.
Between the September 23, 2014 letter (when the cause of
action arose) and April 14, 2015 (when the parties agreed to
proceed with Mr. Reynold’s internal appeal in exchange for the
voluntary dismissal of Mr. Reynold’s first complaint), more than
6 and a half months has elapsed.

This is enough to bar Mr.

Reynold’s claims.
While it is true that Mr. Reynold’s initiated the internal
appeals process in June 2, 2014, I do not find that his internal
appeals process had any tolling effect between September 23,
2014, and April 14, 2015.

This is due to the fact he was not

diligently pursuing his internal appeals process, but was,
rather, seeking redress through litigation.

It was only after

voluntarily dismissing his first complaint that he diligently
pursued the appeals process and tolling began.

By that time,

however, more than six months had elapsed,7 and the courthouse
doors had presumptively closed.
claim is time barred.

Thus, I find that Mr. Reynolds’

Notwithstanding my decision regarding the

7

Moreover, more than another five months passed between
September 23, 2015 (when he exhausted his internal appeals
process) and March 15, 2016, when he filed the complaint
initiating this case.
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preclusive effect of the statute of limitations, in the interest
of completeness, I will analyze Mr. Reynolds’s substantive
claims below.
2.

The Hospital’s Breach of the CBA

Mr. Reynolds contends, without significant citation to the
record, that there is overwhelming evidence that his termination
by the Hospital was without just cause and, therefore, violated
the CBA.

He indicates that “[t]here is little doubt that [he]

was terminated as a result of the Contrast Incident.”

He

maintains that, following the Contrast Incident, Ms. Ierardi
made it clear that she wanted to terminate him and everything
that occurred after the incident was merely pretext to support
his wrongful termination.

He states that he was “the

scapegoat,” and from that point on, Ms. Ierardi “engaged in an
obvious scheme to harass [him] into quitting his job and when
she set about establishing a record of bogus claims of
wrongdoing.”
It is well settled that “[w]hether the undisputed facts in
a specific case establish — or fail to establish — proper cause
for discharge within the contemplation of a given CBA is a
question of law (and, thus, a question for the court).”
Mulvihill, 335 F.3d at 22 (citation omitted).

“[T]he question

of whether proper cause exists to sustain the employee’s

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Case 1:16-cv-11119-DPW Document 53 Filed 03/07/19 Page 44 of 51

discharge intersects with the question of whether the record
contains substantial evidence.”

Id.

Under the CBA here, the Hospital had the right to
discipline, suspend or discharge a worker for just cause.

The

record demonstrates that Mr. Reynolds was terminated for failing
to comply with the PIP that was put in place as a result of the
pattern of escalating performance deficiencies following a
three-month period during which Mr. Reynolds was issued two
separate Final Warnings.

The record was developed after the

Hospital received complaints from staff members and patients.
Mr. Reynolds attempts to excuse his alleged deficiencies but
fails to confront the fact that these events, nevertheless,
occurred.
The Hospital gave Mr. Reynolds ample opportunity to show
improvement, however, he failed to do so.

The Hospital had just

cause to terminate Mr. Reynolds, who had received two Final
Warnings in the course of less than three months and repeatedly
refused to comply with the terms of his PIP.
I find that there is substantial evidentiary support to
sustain the Hospital’s decision to terminate Mr. Reynolds.
Consequently, I conclude that there was no breach of the CBA and
I will grant the Hospital’s motion for summary judgment with
respect to the count against it.

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3.

The Union’s Breach of its Duty of Fair Representation

Mr. Reynolds contends that there is substantial evidence
that the Union breached its duty of fair representation in both
handling his grievance and in refusing to arbitrate his
grievance.
A labor union has “a statutory obligation to serve the
interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct.”

Vaca v. Sipes,

386 U.S. 171, 177 (1967) (citation omitted).
The “duty of fair representation mandates that a union
conduct at least a ‘minimal investigation’ into an employee’s
grievance.”

Emmanuel v. Int’l Bhd. of Teamsters, Local Union

No. 25, 426 F.3d 416, 420 (1st Cir. 2005) (citation omitted).
“A Union breaches this duty only when [its] conduct toward a
member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.”

Miller, 985 F.2d at 11.

“[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.”

Id. at 12 (internal

quotation marks and citations omitted).

Under this standard, a

union is permitted wide discretion, and a court’s review of the
union’s conduct is “highly deferential”.
45

Miller v. U.S. Postal

Case 1:16-cv-11119-DPW Document 53 Filed 03/07/19 Page 46 of 51

Serv., 985 F.2d 9, 12 (1st Cir. 1993) (citations omitted).

“It

is for the union, not the courts to decide whether and in what
manner a particular grievance should be pursued.”

Emmanuel, 426

F.3d at 421 (quoting Patterson v. Int’l Bhd. of Teamsters, Local
959, 121 F.3d 1345, 1349-50 (9th Cir. 1997)); unions are given
“great latitude in determining the merits of an employee’s
grievance and the level of effort it will expend to pursue it.”
Miller, 985 F.2d at 12.
I find the Union acted well within its wide range of
reasonableness inasmuch as it investigated the underlying facts
of Mr. Reynolds’s termination, appropriately advocated on his
behalf during all steps of the grievance procedure, and acted
well within its broad discretion when it decided not to pursue
Mr. Reynolds’s grievance to arbitration.
Contrary to Mr. Reynolds’s claims, the record shows that
the Union handled his grievance adequately.

Indeed, despite the

fact that the Hospital had just cause to terminate his
employment, discussed supra, the Union was successful in
negotiating a settlement agreement on behalf of Mr. Reynolds.
Mr. Reynolds tries to pick holes in the Union’s
representation. For example, he asserts that Ms. Leveille
apparently conceded to the Hospital giving him a Final Warning.
But he fails to recognize that this was effective advocacy to
secure his continued employment with the Hospital.
46

In any

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event, Ms. Leveille made clear to Ms. Ierardi that the Union
would vigorously challenge termination should the Hospital
discharge Mr. Reynolds.
Additionally, Mr. Reynolds also labels Ms. Knehans “a
woefully unprepared delegate” because at the July 26, 2013,
meeting she made no effort to argue on his behalf and that she
did not file a grievance on his behalf after he requested.
However, in his deposition testimony, Mr. Reynolds made it clear
that he did not ask the Union to grieve either of his two Final
Warnings.

He takes fault with her lack of knowledge of filing a

grievance.

However, as he indicated in his deposition, Mr.

Reynolds did not ask for one to be filed, and as a result I
cannot say that Ms. Knehans’ conduct was so far outside a wide
range of reasonableness as to be irrational.
Additionally, Mr. Reynolds contends that Mr. Fleischer
failed to take any steps to investigate the Contrast Incident.
But Mr. Reynolds did not grieve the first Final Warning
concerning that matter.

The record demonstrates that Mr.

Fleischer investigated as much was necessary.

For example,

during the grievance proceedings, Mr. Fleischer had several
conversations with the parties involved in the matter, including
Mr. Reynolds, Ms. Knehans, Mr. Bezza, Ms. Ierardi, and Ms.
O’Neill.

Moreover, it is undisputed that Mr. Reynolds’s

grievance was properly and timely advanced to both Step 2 and
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Step 3 of the grievance procedure.

Specifically, for the Step 2

meeting, Mr. Fleischer reviewed the entirety of Mr. Reynolds’s
disciplinary history since the contrast incident and addressed
each allegation to argue that the Hospital did not have just
cause to terminate Mr. Reynolds.

Mr. Reynolds testified that

Mr. Fleischer “seemed very sympathetic to the situation, and he
was the first one from the union that had seemed to see the
logic in [his] complaint.”
supported by Mr. Fleischer.

Mr. Reynolds initially felt
For Step 3, Mr. Fleischer again

reviewed the entirety of Mr. Reynolds’s disciplinary history
since the contrast incident and addressed each allegation to
argue that the Hospital did not have just cause to terminate Mr.
Reynolds.

Mr. Reynolds testified that he felt Mr. Fleischer’s

presentation was full and fair on his behalf.

He also testified

that he had the opportunity to give his side of the story in his
own words.
Having taken the entire record under consideration, I find
that the Union conducted well more than a minimum investigation
on behalf of Mr. Reynolds.

I cannot conclude that the Union’s

actions here are arbitrary because I do not find the Union’s
behavior to be outside a wide range of recognized
reasonableness, or otherwise irrational.
Finally, Mr. Reynolds further objects to the Union’s
refusal to take his case to arbitration.
48

However, he fails to

Case 1:16-cv-11119-DPW Document 53 Filed 03/07/19 Page 49 of 51

recognize that “[a] union is under no duty to arbitrate a
grievance that it honestly and in good faith believes lacks
merit.”

Chaparro-Febus v. Int’l Longshoremen Ass’n, Local 1575,

983 F.2d 325, 331 (1st Cir. 1992) (citation omitted).

Rather,

if a union were forced to arbitrate “a case that it felt had
little basis in the contract, it arguably would jeopardize its
credibility with the employer for purposes of later, more
supportable, disputes with management policies, instituted on
behalf of all members.”

Berrigan v. Greyhound Lines, Inc., 782

F.2d 295, 298 (1st Cir. 1986).
The record here demonstrates that the Union spent
considerable time on Mr. Reynolds’s case and adequately
represented his interests up until the time it, in good faith,
believed his case lacked merit and could not succeed at
arbitration.
Mr. Reynolds was a short-term employee with two Final
Warnings on his record.

He was additionally placed on a PIP

that required him to maintain a respectful rapport with the
Hospital staff and patients, provide patients with prompt and
professional service, refrain from creating and disseminating
documents listing duties in an attempt to direct the work of his
colleagues over whom he had no supervisory authority, and to
meet with his supervisor weekly to review his progress.
Reynolds failed to improve.

He was ultimately terminated for a
49

Mr.

Case 1:16-cv-11119-DPW Document 53 Filed 03/07/19 Page 50 of 51

pattern of escalating performance deficiencies and his refusal
to attend future review sessions, thereby violating the
essential elements of the PIP.
Rather than acknowledging the deficiencies with his
employment conduct, Mr. Reynolds takes the conclusory position
that the Union’s “refusal to arbitrate [his] grievance was not
in good faith and was most likely motivated by the fact that
[he] had made a complaint to the NLRB.”

This speculative

statement, without more, does not reframe my analysis.

I

recognize that he claims Ms. Eckstein stated, “you expect the
Union to help you after you filed a complaint with the NLRB.”
This statement is without meaningful significance.

There is no

evidence to suggest that Mr. Eckstein had a role in deciding the
outcome of Mr. Reynold’s appeals or that Mr. Reynolds was not
afforded fair, impartial hearings.

Instead, the record fully

establishes that the Union did take all justifiable steps to
assist him.
I find that the Union acted well within the broad
discretion afforded it in determining the merits of a grievance.
I conclude that the decision not to arbitrate Mr. Reynolds’s
claim did not violate the Union’s duty of fair representation
and I find no error with said decision.

Therefore, I grant

Defendants’ motion for summary judgment with respect to this
count.
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IV. CONCLUSION
For the reasons set forth above, it is hereby ORDERED that
Defendants’ joint motion [Dkt. No. 42] to strike be GRANTED IN
PART and DENIED IN PART, and that Defendants’ motions [Dkt. Nos.
29 and 31] for summary judgment be GRANTED.

/s/ Douglas P. Woodlock____________
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

51