Brinig v. Illinois Central School Bus, LLC

Filing 44

Judge Richard G. Stearns: ORDER entered granting 36 Motion for Summary Judgment. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-12482-RGS
THERESHA BRINIG
v.
ILLINOIS CENTRAL SCHOOL BUS, LLC
d/b/a NORTH AMERICA CENTRAL SCHOOL BUS
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
February 27, 2019
STEARNS, D.J.
This case began when, in a regrettable lapse of holiday judgment,
plaintiff Theresha Brinig, a bus driver for the Waltham public schools,
distributed the business card of a Rent-a-Santa to the pupils on her bus.
Parents predictably complained to the School District, which in turn
complained to Brinig’s employer, defendant North American Central School
Bus, LLC (NACSB), demanding that Brinig be banned from Waltham school
busses.

NACSB obliged.

Claiming discrimination, Brinig brought this

lawsuit against NACSB.
BACKGROUND

NACSB’s Transportation Service Agreement with the Waltham School
District contained a provision directly relevant to Brinig’s case. Under the
terms of the Service Agreement, the District could “accept or reject any or all
[NACSB] employees at any time within the contract period, if it is deemed by
the City to be in the best interest of the City of Waltham to do so.” Dkt #38
– Def.’s Ex. C (Service Agreement) at Art. V § (C).
NACSB hired Brinig as a part-time school bus driver in the fall of 2011.
Brinig was a member of the Waltham Drivers’ Association (Union) and her
employment was subject to a Collective Bargaining Agreement (CBA). Def.’s
Ex. J (CBA). Article XIV of the CBA, titled Termination of Operations,
provides: “It is recognized and agreed by the parties that the Company is
employing the employees covered by this agreement so as to fulfill its
obligations under its contract with the School Committee of the City of
Waltham. This Agreement is made subject to the terms and conditions of
the City of Waltham contract.” Id. at 10. In August of 2012, Brinig was given
a copy of NACSB’s employee handbook which explained the company’s strict
non-solicitation policy: “An employee may not solicit for any cause or
organization during his or her working time or the working time of the
employee being solicited.

Likewise, an employee may not distribute

literature on Company property during working times or at any time in
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working areas.” Id. – Ex. E (NACSB Employee Handbook) at 11; Ex. D
(Brinig Dep.) at 28.
On November 14, 2014, without notice to her employer or the District,
Brinig gave out photocopies of a business card with telephone numbers of a
Santa Claus impersonator to elementary and high school students on her
bus. Brinig testified that she had met the aspiring Santa “a couple times at
Burger King in Waltham.”1 Id. at 30-31, 40; see also Def.’s Ex. F (card). On
November 15, 2014, Dr. Susan Nicholson, Superintendent of the Waltham
Schools,

notified

Leanne

Wilcinski,

Waltham’s

School

Business

Administrator, that parents had complained about Brinig’s solicitation of
their children on the Santa’s behalf. On November 17, 2014, Dr. Nicholson,
Wilcinski, and Ann Frassica, the Waltham Public Schools Safety Officer,
determined that Brinig ws unsuitable as a Waltham school bus driver
“because she [had] demonstrated such poor judgment and potentially
endangered the students.” Def.’s Ex. G (Wilcinski Aff.) ¶ 7. On November 17,
2014, Wilcinski wrote to Daniel Allder, the NACSB Contract Manager, and
David Petersen, the NACSB Regional Operations Manager, describing the
“incident” and requesting that Brinig “no longer be used as a bus driver for

1 Brinig testifies that she had handed out contact information regarding

another Santa to Waltham students in prior years without any complaints.
Brinig Dep. at 37-39.
3

the City of Waltham.” Id. ¶ 8; Def.’s Ex. L (Nov. 17, 2014 Letter). NACSB
immediately terminated Brinig stating that it had no other similar job for her
“in or even near Massachusetts.”2 Def.’s Ex. B (Petersen Dep.) at 34, 41-42.
Brinig testified that she asked NACSB if she could work instead as a local
dispatcher, but received no response.3
Brinig contends that the Union mailed a grievance letter on November
21, 2014, to “the Belmont address where our buses are housed.” Pl.’s Ex. E;
Brinig Dep. at 63. NACSB, however, contends that “[p]er the company’s
records, no grievance was filed and [Brinig] did not pursue the grievance

Petersen testified that Gary, Indiana was the nearest school district
for which NACSB provided transportation services. Def.’s Ex. B (Petersen
Dep.) at 65-66. While Brinig stated in her deposition that she “would have
entertained leaving the state” to keep her employment with NACSB, there is
no evidence that she ever communicated her willingness to relocate to her
employer. See Pl.’s Ex. J at 48.
2

In her deposition, Brinig stated that another NACSB bus driver, John
Mullane, who “took over for plaintiff,” was later terminated after becoming
involved in an accident, but was offered reinstatement to a dispatcher
position, which he declined. NACSB counters (consistent with Brinig’s own
testimony), that it did not have a permanent dispatcher’s position, but rather
filled the position temporarily when needed with available drivers. See Def.’s
Statement of Facts (SOF) #19; Petersen Aff. ¶ 10; see also Brinig Dep. at 2021. NACSB hired a dedicated dispatcher only in May of 2016 at the District’s
insistence. NACSB also offers sworn testimony and documentary evidence
that Mullane was terminated by NACSB on January 16, 2015, “for causing an
accident while driving a NACSB vehicle . . . and was never offered a
dispatcher or any other position.” Petersen Aff. ¶ 14. Brinig provides no
evidence to the contrary.
3

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procedure.” Pl.’s Ex. G (Letter to MCAD) at 2; see also Pl.’s Ex. C, Int. 11.
Brinig maintains that when NACSB produced her personnel file it contained
the grievance request, which NACSB “ignored . . . , even though other male
employees were allowed to pursue grievances.” Second Am. Compl. ¶ 9.
On November 7, 2017, Brinig filed a four-count Complaint against
NACSB in the Middlesex Superior Court asserting Title VII and state antidiscrimination claims, as well as state common-law claims for retaliation and
wrongful termination. In its essentials, the Complaint alleges that NACSB
treated Brinig and other female employees differently than their male
counterparts when dealing with fireable offenses. Brinig claims that male
employees were consistently allowed to grieve terminations, which often led
to their reinstatement, an opportunity denied to female employees.4
NACSB timely removed the case to the federal district court. Prior to
NACSB’s filing of a responsive pleading, Brinig filed an Amended Complaint
deleting the retaliation claim. NACSB answered both discrimination claims,
but moved to dismiss Count III, the common-law wrongful termination
claim. Brinig then filed a Second Amended Complaint revising Count III to
assert a violation by NACSB of the covenant of good faith and fair dealing for

Brinig maintains that NACSB failed to comply with Article 9 of the
CBA, which requires that an employee “may only be . . . discharged for just
cause and the employer must first give at least two written notices.” Id. ¶ 10.
4

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its having terminated her “without affording her the procedural protections
of the CBA because of her gender.” The court subsequently denied NACSB’s
motion to dismiss the original Count III as moot. Now before the court is
NACSB’s motion for summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate when “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.” Fed. R. Civ. P. 56(a). “[T]he mere existence of
some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248 (1986) (emphases in original). A material fact is one
which has the “potential to affect the outcome of the suit under applicable
law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.
1993). In assessing the genuineness of a material dispute, the facts are to be
“viewed in the light most flattering to the party opposing the motion.” Nat’l
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995).
DISCUSSION
Title VII prohibits an employer from discriminating “against any
individual with respect to [her] compensation, terms, conditions, or
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privileges of employment, because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Massachusetts

similarly

prohibits

employers

from

engaging

in

discrimination based on gender. Mass. Gen. Laws ch. 151B, § 4(1). Sex
discrimination, under both federal and state law, can be proven either by
direct evidence or through the three-stage burden shifting paradigm set out
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

see also

Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999);
Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116
(2000). At the first stage, a plaintiff must establish a prima facie case of
discrimination by showing that: (1) she is a member of a protected class; (2)
she was performing at an adequate level; and (3) she suffered an adverse
employment action. 2 If the plaintiff succeeds in establishing her prima facie
case, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. The onus on
the employer is not a heavy one. “The employer’s reasons need not be wise,
so long as they are not discriminatory and they are not pretext.” Tardanico
v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). If the employer

Comparative evidence regarding the treatment of similarly situated
persons in a disparate treatment case is considered at the third step of
burden-shifting. It is not an element of a plaintiff’s prima facie case.
Conward, 171 F.3d at 19.
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meets its burden, the plaintiff must come forward with evidence
demonstrating that the employer’s proffered reason is a pretext and that the
adverse action was motivated by a discriminatory animus. “Despite these
shifting burdens of production, the plaintiff throughout retains the burden
of persuasion.” Conward, 171 F.3d at 19.
Assuming, without deciding, that Brinig has laid out a prima facie case,
NACSB has articulated a nondiscriminatory reason for Brinig’s firing, that
she “was terminated because Waltham rejected [her] as a driver and there
was nowhere else to transfer [her] as NACSB did not provide school bus
services to any other city or company in or even near Massachusetts.”
Petersen Dep. at 34, 41-42.

The CBA clearly states that its employee

protections are subordinate to the discretionary right guaranteed to the City
of Waltham by the Service Agreement to reject any NACSB employee whose
tenure is deemed not in the “best interest” of the City.
Brinig nonetheless claims that, in failing to act on her grievance
petition, NACSB treated her differently than her male colleagues. “In a
disparate treatment case, the plaintiff has the burden of showing that she was
treated differently from ‛persons similarly situated’ ‛in all relevant aspects.’”
Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994) (emphasis in
original). The test is whether a “prudent person, looking objectively at the
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incidents, would think them roughly equivalent and the protagonists
similarly situated. . . . Exact correlation is neither likely nor necessary, but
the cases must be fair congeners. In other words, apples should be compared
to apples.” Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir.
1989) (rev’d on other grounds by Educadores Puertorriquenos en Accion v.
Hernandez, 367 F.3d 61 (1st Cir. 2004)). The proponent must show that the
individuals with whom she seeks to be compared have “engaged in the same
conduct without such differentiating circumstances that would distinguish
their conduct or the employer’s treatment of them for it.” Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
To support her disparate treatment claim, Brinig cites NACSB’s
handling of male employees “Tony Carvallo, Nelson Ortiz and another driver
(Maxime)” and “Jack Mullane” as examples of similarly situated male
employees who committed fireable offenses, were suspended, and then
permitted to return to work after NACSB heard their grievances. Pl.’s SOF
at 17.

However, Brinig’s own evidence contradicts her attempted

comparison.

According to Brinig, Carvallo and Ortiz were “illegally

terminated” – Carvallo for a Criminal Offender Record Information (CORI)
check that wrongfully relied on juvenile records, and Ortiz for a mistaken
CORI identification. As the Union’s designated representative, it was Brinig
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herself who handled Carvallo’s and Ortiz’s grievances, and successfully
advocated with NACSB for the restoration of their jobs. The “Maxine”
comparator is even less relevant. According to Brinig,” Maxine” became
“extremely belligerent, calling her all kinds of derogatory names” when she
asked him to move his bus.

Brinig Dep. at 50.

As a result, NACSB

suspended “Maxine” for “two or three days” and directed him to apologize to
Brinig. As Brinig admits, the City of Waltham had no role in reviewing the
infractions involving the male comparators she cites and thus had no
occasion to demand a “best interest” rejection of their continued
employment. Id. at 56-57. Accordingly, these employees are not “similarly
situated in all respects” to Brinig (in whose case the City intervened). Finally,
the previously mentioned John Mullane, who was terminated after causing
an accident and then leaving the scene, was never reinstated, nor according
to NACSB’s sworn testimony, offered another position with the company.
Given the absence of any admissible comparator evidence, Brinig’s federal
and state discrimination claims fail.
In Count III, Brinig alleges a wrongful termination claim against
NACSB for “failing to follow the procedural steps in the CBA in that [NACSB]
did not afford [Brinig] with an opportunity after her request to grieve her
discharge, and [NACSB] did not provide [Brinig] with the written warnings
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prior to discharge.” Second Am. Compl. ¶ 35. Brinig also maintains that
NACSB “violated its covenant of good faith and fair dealing by terminating
her without affording her the procedural protections of the CBA.” Id. ¶ 36.
These state-law claims for all practical purposes are preempted by §
301 of the Labor Management Relations Act. “[A]s a general rule, neither
state nor federal courts have jurisdiction over suits directly involving ‘activity
(which) is arguably subject to § 7 or § 8 of the [National Labor Relations]
Act.’” Vaca v. Sipes, 386 U.S. 171, 179 (1967), quoting San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236, 245 (1959). “It is well-established
that § 301 completely preempts a state law claim if the resolution of the claim
necessitates analysis of, or substantially depends on the meaning of, a
collective bargaining agreement.” Quesnel v. Prudential Ins. Co., 66 F.3d 8,
10 (1st Cir. 1995); see also Martin v. Shaw’s Supermarkets, Inc., 105 F.3d
40, 42 (1st Cir. 1997) (same). A state-law claim “depends” on a CBA if it
alleges conduct that constitutes a breach of a duty arising under a CBA.
Flibotte v. Pennsylvania Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir. 1997).
The allegations that NACSB failed to follow the procedural of the CBA by

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giving warnings and processing her grievance before terminating her are
squarely preempted by § 301.5
However, it is also true that § 301 preemption is not without limitation.
Fant v. New England Power Serv. Co., 239 F.3d 8, 15 (1st Cir. 2001). Section
301, does not, for example, preempt nonnegotiable rights conferred on
individual employees as a matter of state law. See Livadas v. Bradshaw, 512
U.S. 107, 123 (1994). Brinig’s amended Count III is a regurgitation of the
gender discrimination claims set out in Counts I and II – that NACSB treated
her differently than several of its male drivers. While the statutory claim is
not preempted by § 301, it fails for the same reasons as do Counts I and II.
ORDER
For the foregoing reasons, defendants’ motion for summary judgment
is ALLOWED. The Clerk will enter judgment for Illinois Central School Bus
LLC d/b/a North America Central School Bus on all claims and close the
case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE
It should be noted that there is nothing in the CBA that requires
NACSB to process employee grievances – rather the burden lies with the
Union to initiate the process (“[T]he grievance committee shall bring the
matter to the attention of the owner of the Company in an attempt to reach
a satisfactory solution.”).
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