Smith v. United Parcel Service, Inc. et al

Filing 31

MEMORANDUM AND ORDER granting 13 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. So Ordered by District Judge William E. Smith on 9/14/2020. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
MICHAEL P. SMITH,
)
)
Plaintiff,
)
)
v.
)
)
C.A. No. 19-192 WES
UNITED PARCEL SERVICE, INC.
)
and LOCAL 251 OF THE
)
INTERNATIONAL BROTHERHOOD
)
OF TEAMSTERS,
)
)
Defendants.
)
______________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
Before the Court is Defendant Local 251 of the International
Brotherhood of Teamsters’ Motion for Summary Judgment, ECF No. 13.
Also before the Court is Defendant United Parcel Service, Inc.’s
Motion for Summary Judgment, ECF No. 14.

For the reasons set forth

below, both Motions are GRANTED.
I.

Background
Plaintiff Michael P. Smith worked for Defendant United Parcel

Service, Inc. (“UPS” or “the Company”) as a casual package driver
from June 2010 to October 2013, and as a full-time package driver
from October 2013 until his discharge in December 2018.

Def.

United Parcel Service, Inc.’s Statement of Undisputed Facts in
Supp. of Mot. for Summ. J. (“UPS SUF”) ¶¶ 1-2, ECF No. 15.

As a

UPS employee, he was represented by Local 251 of the International

Brotherhood of Teamsters (“Local 251” or “the Union”), and his
employment was governed by the terms of a collective bargaining
agreement (“CBA”).1

Id. ¶¶ 1, 3-4.

While at UPS, Smith received a copy of the Company’s Workplace
Violence Prevention Policy, which guarantees employees a “safe
working environment, free of threats, intimidation, and physical
harm,” and prohibits, on a “zero tolerance” basis, “physical
assaults (fights), threatening comments [and] intimidation.”
¶¶ 7-9.

Id.

He also received the Company’s Professional Conduct and

Anti-Harassment Policy, which prohibits “harassment” based on
“disability,”

including

“derogatory

remarks, slurs, threats or jokes.”

or

other

Id. ¶ 11.

inappropriate

That policy also

forbids “inappropriate physical contact.” Id. Violation of either
policy can be punished by disciplinary action up to and including
termination without warning.

Id. ¶¶ 10, 12, 14, 17.

On November 30, 2018, Smith touched the head of Anthony
Cipriano, a fellow UPS employee and Local 251 member, while they
were taking a break at a Dunkin’ Donuts in Providence, RI; Cipriano

The CBA has two parts: the National Master United Parcel
Service Agreement (“Master Agreement”) and the New England and
United Parcel Service Supplemental Agreement (“Supplemental
Agreement”). See Local 251’s Add. of Exs. to Mot. for Summ. J.
(“Union Add.”) Exs. 1 and 2, ECF Nos. 13-5 and 13-6. Much of the
controversy in this case surrounds Article 59 of the Supplemental
Agreement, which sets forth, among other things, cardinal offenses
that justify termination without prior warning. See Union Add.
Ex. 2, Supplemental Agreement 207-08.
1

2

described this touch as a “smack,” while Smith described it as a
“tap.” UPS SUF ¶¶ 18-26; Local 251’s Statement of Undisputed Facts
in Supp. of Mot. for Summ. J. (“Union SUF”) ¶¶ 27, 32, ECF No. 134.

Cipriano reacted by asking Smith, “Why did you hit me?”

SUF ¶ 21.

UPS

Smith replied, “What do you mean why did I hit you?”

Id. ¶¶ 34, 36; see Brown Cert. Ex. D, Smith Dep. 13:16-22, ECF No.
15-1.

On December 5, Cipriano met with UPS R.I. Metro Business

Manager Andy McLean and Union Chief Steward Thomas Salvatore,
reporting that Smith had mocked his deafness and “hit” him in the
ear with an “open-handed smack.”

Union SUF ¶¶ 6-27.

Later that day, Smith met with McLean, Salvatore, UPS Division
Manager Matthew Duhoski, and Union Steward Corey Levesque.

UPS

SUF ¶ 25.

Id.

Smith said that he had merely “tapped” Cipriano.

¶ 26; Union SUF ¶ 32.

He also acknowledged that Cipriano had

responded to the “tap” by asking, “What did you hit me for?”
SUF ¶ 26.
violence

UPS

Duhoski explained UPS’s “zero tolerance” policy for
and

announced

Smith’s

situation was investigated.

immediate

suspension

as

the

Id. ¶ 27; Union SUF ¶ 36.

On December 7, Cipriano submitted a written statement to UPS.
UPS SUF ¶ 29; Union SUF ¶ 39.

The statement asserted that Smith

had struck Cipriano in the ear, that Smith mocked Cipriano’s
hearing disability, and that Smith harangued Cipriano as a “route
killer” (one whose delivery speed causes the Company to raise its
expectations regarding overall driver efficiency).

3

UPS SUF ¶ 29.

On December 10, at a meeting with Salvatore, Levesque, and
UPS Human Resources Representative Lisa Mertel, Cipriano repeated
his

charges

against

memorandum by Mertel.

Smith;

the

meeting

was

memorialized

Id. ¶¶ 30-32; Union SUF ¶¶ 40-42.

in

The next

day, December 11, Mertel took statements from Medeiros and Thibault
in

the

presence

of

their

Union

representatives

Salvatore, and Business Agent Matthew Maini).
Union ¶¶ SUF 45-46.

(Levesque,

UPS SUF ¶¶ 33-36;

Neither Medeiros nor Thibault saw Smith touch

Cipriano, but both heard Cipriano ask, “Why did you hit me?”
SUF ¶¶ 34, 36.

UPS

Furthermore, both heard Smith reply, “What do you

mean why did I hit you?”

Id.

On December 12, at a meeting meant

to investigate whether Smith had violated the workplace violence
and professional conduct policies, Smith again admitted that “he
placed his hand on Cipriano’s head”.

Id. ¶ 37-38; Union SUF ¶ 47.

At the end of the meeting, Smith was told that he was terminated.
UPS SUF ¶ 40; Union SUF ¶ 49.
On

December

13,

UPS

terminated

Smith

for

violating

the

Workplace Violence Prevention Policy and the Professional Conduct
and Anti-Harassment Policy, UPS SUF ¶¶ 40-41, and subsequently
sent Smith an official letter of termination, citing Article 50
of the CBA.

Union SUF ¶ 52.

At Smith’s behest, Local 251 filed a grievance for termination
without just cause.

Id. ¶ 50; UPS SUF ¶ 42.

Maini requested

Smith’s employment and disciplinary records from UPS.

4

Union SUF

¶ 51.

The Local Level grievance meeting occurred on December 20.

Id. ¶ 53.

Smith attended, as did Maini and Salvatore for the Union

and Duhoski and UPS Labor Relations Manager Glenn Steward for the
Company.

Id.; UPS SUF ¶ 46.

received

Smith’s

records,

disciplinary issues.2

At the meeting, Maini and Salvatore
which

showed

a

long

history

Union SUF ¶¶ 54-57; UPS SUF ¶¶ 46-47.

of

Among

the documents was a “last chance” agreement, which Smith signed
after being terminated and reinstated in 2015 for “dishonesty,
overall work record and falsification of company documents.” Union
SUF ¶¶ 58-60; UPS SUF ¶¶ 49-50.
admitted “tapping” Cipriano’s head.

At this meeting, Smith again
Union SUF ¶ 62; UPS SUF ¶ 51.

He also made previously unaired allegations concerning Cipriano’s
behavior: specifically, Smith claimed that Cipriano had mocked him
for having a limp and that Cipriano was actively trying to steal
his route.

Union SUF ¶¶ 63-64; UPS SUF ¶ 52.

Duhoski found

Smith’s claims incredible and Steward denied his grievance.

UPS

His offenses include failing to scan four packages that
were not delivered or given away without a scan, Union Add. Ex.
12, Smith UPS Personnel File 12-056, ECF No. 13-16; leaving a
package at a prohibited location and falsely claiming that the
shipper overrode the prohibition, resulting in a theft and payout
by UPS, id. at 12-049-054; being late for a commercial delivery,
id. at 12-034-036; altering shipping addresses, id. at 12-025-033;
inflating his mileage by some 120 miles, id. at 12-018-021; and
signing packages for customers without permission, id. at 12-008016. Furthermore, Smith was twice terminated by UPS and reinstated
due to the Union’s advocacy. Id. at 12-057-060, 12-054-055.
2

5

SUF ¶¶ 53-54.

Maini told Smith and Duhoski that the Union would

probably not pursue arbitration.

Union SUF ¶ 67.

Maini and Salvatore subsequently briefed Matthew Taibi, who
serves as Secretary-Treasurer and Principal Executive Officer of
Local 251 and represents members at UPS as a Business Agent.
¶¶ 2, 69-73.
Cipriano.

Id.

Taibi directed Maini to get another statement from

Id. ¶¶ 73-75.

Taibi and Maini then conferred about

Smith’s situation, with Taibi concluding that Smith’s account was
inconsistent and unbelievable, especially given his disciplinary
record, whereas Cipriano’s account was consistent and believable.
Id. ¶¶ 76-96.

Taibi therefore made the decision not to pursue

arbitration, which he considered futile.

Id. ¶¶ 98-99.

Taibi’s

decision was informed by a recognition that the Union was bound
to defend Cipriano’s interest in a safe workplace, and that Smith’s
actions gave UPS just cause for immediate discharge.
25, 97, 100.

Id. ¶¶ 22-

On January 16, 2019, at Taibi’s instruction, Maini

wrote Smith a letter explaining that Local 251 would not take his
grievance to arbitration.

Id. ¶¶ 102-04.

On April 10, 2019, Smith sued UPS and Local 251 in Rhode
Island Superior Court. See generally Compl., ECF No. 1-1. Against
the former he alleged breach of contract (Count I) and violation
of the Rhode Island Civil Rights Act (“RICRA”), R.I. Gen. Laws §
42-112-1 (Count III); against the latter he alleged breach of the
duty of fair representation (Count II) and violation of RICRA

6

(Count IV).

See id. ¶¶ 28-47.

summary judgment.

Both Defendants now move for

Local 251’s Mot. for Summ. J., ECF No. 13; Def.

United Parcel Service, Inc.’s Mot. for Summ. J., ECF No. 14.

The

case was removed to this Court by Defendants on April 18, 2019.
Notice of Removal, ECF No. 1-2.
II.

Standard of Review
A court must grant a motion for summary judgment where 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).

An issue is genuine if it is “sufficiently open-ended to permit a
rational factfinder to resolve the issue in favor of either side.”
Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st
Cir. 1995) (citation omitted).

An issue is material if it “has

the capacity to sway the outcome of the litigation under the
applicable law.”

Id. (citation omitted).

Initially, the movant has the burden of showing the absence
of any genuine issues

of material fact based on “pleadings,

depositions,

to

affidavits”.

answers

interrogatories,

admissions,

and

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d

1, 5 (1st Cir. 2010) (citing Celotex Corp. v. Cartrett, 477 U.S.
317, 323 (1986)).

If the movant does so, the burden shifts to the

nonmovant to demonstrate “with respect to each issue on which [he
or she] would bear the burden of proof at trial . . . that a trier
of fact could reasonably resolve the issue in [his or her] favor.”

7

Id. (citing Celotex, 477 U.S. at 324).

This burden requires the

nonmovant to proffer “specific facts” of “evidentiary value”.
Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005).
is

not

enough

for

the

conclusory assertion.

nonmovant

to

rely

on

speculation

It
and

See Town of Westport v. Monsanto Co., 877

F.3d 58, 66 (1st Cir. 2017).
Evidence must be considered in the light most advantageous to
the nonmovant, with “reasonable inferences” drawn in that party’s
favor.

Noviello, 398 F.3d at 84.

However, such “indulgence” is

limited by the nonmovant’s “obligation to support the alleged
factual controversy with evidence that is neither ‘conjectural nor
problematic.’”

Chiang v. Verizon New England, Inc., 595 F.3d 26,

34 (1st Cir. 2010) (internal quotation marks and alterations
omitted) (quoting Nat’l Amusements, 43 F.3d at 735).
Finally, “any fact alleged in the movant’s Statement of
Undisputed Facts shall be deemed admitted unless expressly denied
or otherwise controverted by a party objecting to the motion” in
the form of a Statement of Disputed Facts.3

DRI LR 56(a)(3); see

Smith did not file a Statement of Disputed Facts.
Therefore, the Defendants’ Statements of Undisputed Fact are
“accept[ed] as true”. Bank of Am., N.A. v. Burt, No. CA06-394S,
2007 WL 1074742, at *3 (D.R.I. Mar. 30, 2007). “Valid local rules
are an important vehicle by which courts operate.[] Such rules
carry the force of law . . . and they are binding upon the litigants
and upon the court itself”. Air Line Pilots Ass’n v. Precision
Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994) (internal
citation omitted).
3

8

Bank of Am., N.A. v. Burt, No. CA06-394S, 2007 WL 1074742, at *3
(D.R.I. Mar. 30, 2007).
III. Discussion
A.

Hybrid Section 301/Duty of Fair Representation Suit
Count I (breach of contract against UPS) and Count II (breach

of the duty of fair representation by Local 251) together comprise
a hybrid Section 301/duty of fair representation suit under the
Labor Management Relations Act § 301, 29 U.S.C. § 185.

Chaparro-

Febus v. Int’l Longshoreman Ass’n, Local 1575, 983 F.2d 325, 330
(1st Cir. 1992); Graham v. Bay State Gas Co., 779 F.2d 93, 94 (1st
Cir. 1985).

In such a hybrid suit, “a plaintiff must prove both

that the employer broke the collective bargaining agreement and
that the union breached its duty of fair representation, in order
to recover against either the employer or the union.”
Febus,

983

F.2d

at

330.

The

actions

interdependent,” standing or falling as one.

are

Chaparro-

“inextricably

Hazard v. S. Union

Co., 275 F. Supp. 2d 214, 225 (D.R.I 2003) (quoting DelCostello v.
Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983)).
“disgruntled

employees

representation claim.”

must

first

prevail

on

Indeed,

their

unfair

Ayala v. Union de Tronquistas de Puerto

Rico, Local 901, 74 F.3d 344, 346 (1st Cir. 1996).

The Court

therefore begins with Count II, which alleges that Local 251
breached its duty of fair representation by failing to pursue the
grievance process to arbitration.

9

1.

Duty of Fair Representation
a.

Legal Standard

A union breaches the duty of fair representation where its
conduct is “arbitrary, discriminatory or in bad faith.”4
(quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).

Id.

Conduct is

arbitrary where, “in light of the factual and legal landscape at
the time of the union’s actions,” it is “so far outside a ‘wide
range of reasonableness’ as to be irrational.”

Miller v. U.S.

Postal Serv., 985 F.2d 9, 12 (1st Cir. 1993) (quoting Air Line
Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991)).

Conduct

is in bad faith where undertaken with “a reckless disregard for
the rights of the individual employee.”

Hussey v. Quebecor

Printing Providence Inc., 2 F. Supp. 2d 217, 224 (D.R.I. 1998)
(quoting DeMichele v. Int’l Union of Elec. Radio and Machine
Workers (AFL-CIO), 576 F. Supp. 931, 935 (D.R.I. 1983)).
Courts adopt a deferential posture toward union decisions
related to the grievance process: “It is for the union, not the
courts to decide whether and in what manner a particular grievance
should be pursued.”

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

Smith has apparently abandoned his initial allegation that
the
Union’s
decision-making
process
was
infected
with
discriminatory bias based on his identity as an able-bodied
individual. See infra Section III(C). Thus, the Court’s analysis
focuses primarily on the issues developed by the parties: namely,
the reasonableness and good faith character of Local 251’s decision
to forego arbitration.
4

10

Union No. 25, 426 F.3d 416, 421 (1st Cir. 2005) (quoting Patterson
v. Int’l Bhd. of Teamsters, Local 959, 121 F.3d 1345, 1349-50 (9th
Cir. 1997)).

Finally, “a union has wide discretion in determining

whether or not to pursue a grievance to arbitration.”

DeLucca v.

Nat’l Educ. Ass’n of Rhode Island, 102 F. Supp. 3d 408, 414 (D.R.I.
2015).
b.

Reasonableness and Good Faith

Local 251 argues that it exercised its discretion in a
reasonable, good faith manner.

Local 251’s Mem. in Supp. of Mot.

for Summ. J. and Mot. to Dismiss (“Union Memo”) 15-16, ECF No. 132.

The Union emphasizes that it conducted a careful investigation

and rendered a decision based on evidence and supported by law of
the shop and past legal and arbitral precedent.
22.

See id. at 17-

Smith counters that the evidence was too sparse and ambiguous

to support a reasonable, good faith decision.5

Pl.’s Mem. of Law

Specifically, Smith asserts that the Union’s decision was
irrational given that: (1) criminal charges were not filed against
Smith; (2) neither Thibault nor Medeiros actually saw the touching;
(3) Smith’s response to Cipriano’s exclamation after the touching
— “What do you mean why did I hit you?” — could be interpreted as
a denial of “intentional or criminal action”; (4) Thibault’s and
Medieros’s statements were “interpreted” by Mertel rather than
recorded verbatim; (5) a third UPS employee present that day who
(possibly) witnessed the incident was never interviewed; and (6)
the potential existence of videotape evidence was left unexplored.
Pl.’s Obj. to Local 251 3-5.
Smith also contends that the Union was bound by the CBA to
advance the grievance to the New England Area Parcel Grievance
Committee pursuant to Article 48, Section 2(c) of the Supplemental
Agreement, and that the failure to do so necessarily constituted
arbitrary action. Id. at 6. However, Section 2(c) applies only
5

11

in Supp. of Obj. to Mot. for Summ. J. filed by Def. Local 251
(“Pl.’s

Union

Obj.”)

3-5,

ECF

No.

22-1.

The

determinative

question, however, is not whether the Union’s decision was right,
but whether it was reasonable and in good faith.

A court must not

“substitute [its] own views for those of the union.”
F.2d at 12.

Miller, 985

Even viewed in the light most favorable to Smith, the

undisputed facts show that Local 251 did not breach its duty.
The Union not only participated in UPS’s investigation, it
also reviewed the results of that investigation and undertook its
own inquiry into the allegations.

Union SUF ¶¶ 26-28, 40-41, 44-

48, 51, 54, 71-75; see Maini Aff. ¶¶ 5, 8-10, 13-14; Salvatore
Aff. ¶¶ 5-10, 13; Taibi Aff. ¶¶ 10-12.

Based on its findings –

including party statements, witness statements, and Cipriano’s
disciplinary record - and its careful consideration thereof, the
Union determined that Smith had likely transgressed the antiviolence and anti-harassment policies, giving UPS just cause for
termination pursuant to Article 59 of the CBA, and rendering
arbitration futile.6 See Maibi Aff. ¶ 7; Taibi Aff. ¶ 7-8, 13.

where the parties (i.e., UPS and the Union) fail to agree on a
settlement: here, however, the parties agree that UPS had just
cause to terminate Smith. See Local 251’s Reply Mem. in Supp. of
Mot. for Summ. J. (“Local 251’s Reply”) 7, ECF No. 25.
This
argument does not merit further analysis.
The actions for which Smith was fired
the “cardinal offenses” set forth in Article
“law of the shop” at UPS, that provision is
exclusive, and violations of either the
6

12

are not listed among
59, but according to
interpreted as nonWorkplace Violence

Affording the Union the considerable deference it deserves, this
Court cannot say that its decision-making was “so far outside a
‘wide range of reasonableness’ as to be irrational,”

Miller, 985

F.2d at 12 (citation omitted), nor that it was taken with “reckless
disregard for the rights of the individual employee,” Hussey, 2
F. Supp. 2d at 224 (citation omitted).
Smith’s arguments as to why the Union breached its duty are
largely unpersuasive.7

See Pl.’s Union Obj. 3-5.

There is,

Prevention Policy or the Professional Conduct and Anti-Harassment
Policy can result in termination without prior warning. Union SUF
¶¶ 21-23.
Based on previous decisions by panels, judges, and
arbitrators, Taibi did not believe the Union would prevail if it
pursued arbitration. Taibi Aff. ¶ 13.
Furthermore, the Union seems to have believed that UPS could
terminate Smith for any rule violation, given that he was under a
“last chance” agreement, beginning April 2015. Union SUF ¶¶ 5760; Salvatore Aff. ¶ 3; Union Add. Ex. 12, Smith UPS Personnel
File 12-057 (“LAST and final warning”). It is not entirely clear
whether a final warning remains in effect indefinitely, given that
Article 59 limits the duration of warnings to nine months. See
Union Add. Ex. 2, Supplemental Agreement 207. In any event, the
last chance agreement was not the driving force in the Union’s
assessment of the merits of Smith’s grievance, and regardless,
given the legal and factual background, the Union’s decision was
not arbitrary or taken in bad faith.
First, lack of criminal charges have little bearing on the
credibility of Cipriano’s account. Second, while neither Thibault
nor Medeiros saw Smith hit Cipriano, it was not irrational for the
Union to construe the exchange they overheard as indicating some
sort of inappropriate and unwelcome contact.
Third, whether
Smith’s words can be interpreted as denying “intentional or
criminal action” is not germane: the only question is whether the
Union reasonably concluded otherwise. Fourth, although Thibault’s
and Medieros’s statements were taken down by Mertel, they were
witnessed by multiple individuals, who have verified what she
wrote. See Salvatore Aff. ¶¶ 8-9; Maini Aff. ¶ 5.
7

13

perhaps, something to be said for Smith’s objections that the Union
neglected to interview a third potential witness8 and to check if
a video camera had captured the incident.
oversight

renders

the

Union’s

handling

of

However, neither
Smith’s

grievance

fatally “perfunctory.” Vaca, 386 U.S. at 191. The Union fulfilled
its obligation to “conduct at least a ‘minimal investigation,’”
and its inquiry does not evince “egregious disregard” for Smith’s
interests.

Emmanuel, 426 F.3d at 420.

Even assuming, arguendo,

that these omissions were negligent or erroneous, “mere negligence
or erroneous judgment will not constitute a breach of the duty of
fair representation.”

Miller, 985 F.2d at 12.

Where a union reasonably and in good faith concludes that it
cannot “establish a wrongful discharge,” and that arbitration
would therefore be “fruitless,” it has the discretion to abandon
the grievance process.

See Vaca, 386 U.S. at 193-94.

On the

undisputed facts, such was the case here.
3.

Supposed Existence of Genuine Disputes of Material Fact

Smith contends that two material facts are in dispute: (1)
whether Local 251’s decision was retaliation against his political
activity within the Union; (2) whether his question - “What do you

An unnamed individual referred to as “Thibault’s helper”
was also present that day, but according to Thibault he was looking
at his phone when the touching occurred and did not hear anything
because he had in earbuds.
See Union Add. Ex. 8, Thibault
Statement.
8

14

mean why did I hit you?” - can be understood as a denial of having
assaulted Cipriano.

Pl.’s Union Obj. 8-10.

These ostensible

factual disputes are immaterial and therefore do not preclude
granting the Union’s Motion as to this claim.
It may be that Smith’s remark — “What do you mean why did I
hit you?” — is susceptible to various plausible interpretations,
thus raising a genuine issue that a “reasonable factfinder could
resolve it in favor of either party.”

Oahn Nguyen Chung v.

StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017) (citation
omitted).

Nevertheless, it is not a material issue of fact, as

it does not “hold[] the potential to change the outcome of the
suit,”

id.

(citation

omitted),

given

that

the

Union’s

own

interpretation was well within the realm of reason, see Miller,
985 F.2d at 12.
As for the alleged retaliation, Smith has not presented
“sufficient evidence to generate a trialworthy issue.”
v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).

Clifford

The affidavit

attached to his brief simply establishes that, at some point in
the past, he and Maini belonged to opposing sides within the sphere
of Union politics.

However, with respect to actual retaliatory

behavior, Smith offers no specifics or details, just insinuation
and conjecture.

Thus, he fails to demonstrate the existence of a

“trialworthy issue”.
121

F.3

1,

3

(1st

See id.; see also Magee v. United States,
Cir.

1997).

15

Indeed,

the

allegation

of

retaliation seems inconsistent with Smith’s deposition testimony,9
making it a classic instance of “attempt[ing] to manufacture an
issue of fact in order to survive summary judgment.”

Orta-Castro

v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st
Cir. 2006).

Finally, it should be noted that the decision to

abandon the grievance process was made by Taibi, not Maini.

Union

SUF ¶ 98.
Given the above, the Court grants Local 251’s Motion for
summary judgment on Count II.
B.

Breach of Contract
Smith argues that, since his alleged conduct is not among the

cardinal offenses enumerated in Article 59 of the Supplemental
Agreement, UPS breached the CBA by firing him without just cause.
He

also

contends

that

summary

judgment

is

precluded

by

the

existence of a factual dispute as to the nature of Smith’s touching
of Cipriano and the significance of such touching under the CBA.
Pl.’s Mem. of Law in Supp. of Obj. to Mot. for Summ. J. filed by

9

Q. As I understand your testimony, and I want
to be clear about this, what you’re saying is
that [what] Mr. Maini didn’t do that amounted
to misrepresentation were not giving you the
witness statements in advance of the grievance
hearing and not filing for the next panel
hearing?
A. Correct.
Q. Anything else?
A. That’s it.
Local 251’s Reply Ex A., Smith Dep., ECF No. 25-1.
16

Def., United Parcel Service, Inc. (“Pl.’s UPS Obj.”) 1-2, ECF No.
24.

UPS responds, firstly, that since Smith cannot establish his

claim against Local 251 for unfair representation, his claim
against UPS for breach of contract must fail.

Def. United Parcel

Service, Inc.’s Mem. of Law in Supp. of its Mot. for Summ. J. (“UPS
Mem.”) 13-15, ECF No. 14-1.

It responds, secondly, that even if

Smith could demonstrate the predicate breach of duty, UPS fired
him for just cause.

Id. at 19-21.

As explained above, in a hybrid Section 301 suit such as this
one, an employee cannot prevail on the breach of contract claim
without prevailing on the unfair representation claim.
III(A); see also Ayala, 74 F.3d at 346.

See supra

Accordingly, Smith’s

contract claim against UPS must fail.10
Therefore, the Court grants UPS’s Motion for summary judgment
on Count I.

Even considered by itself, this claim might warrant
summary judgment in UPS’s favor. UPS had reason to believe that
Smith had struck and mocked Cipriano. See generally UPS SUF Ex.
2, Steward Aff., ECF No. 15-2.
According to the undisputed
facts, such behavior is punishable by termination without prior
warning under the CBA. Union SUF ¶¶ 21-23; UPS SUF ¶¶ 14, 17.
Moreover, Smith had been subject to a last chance agreement, UPS
SUF ¶ 49, and the Union doubted it could secure another such
agreement, Union SUF ¶ 77. In any event, the failure of Smith’s
unfair representation claim renders a definitive analysis on
this question unnecessary.
10

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C.

RICRA
UPS and Local 251 argue that they are entitled to summary

judgment on the RICRA claims because: (1) these state law claims
are preempted, and (2) Smith has not established that he is part
of a protected class.

UPS Mem. 21-23; Union Mem. 25-33. Smith

does not address the RICRA claims in either of his objections
to the instant Motions.11

Nevertheless, the Court gathers that

Smith

was

contends

Cipriano
disabled.

that

because

he

he
is

unfavorably

able-bodied,

treated

whereas

vis-à-vis

Cipriano

is

See Compl. ¶¶ 40-41, 45-46.

A plaintiff must show that he or she is “disabled within
the meaning of the relevant statute” to make out a prima facie
RICRA claim.

Poulin v. Custom Craft, Inc., 996 A.2d 654, 658-

59 (R.I. 2010); see Mayer v. Prof’l Ambulance, LLC, 211 F. Supp.
3d 408, 420 (D.R.I. 2016).

Smith has not presented any facts —

or even any allegations — indicating that he is disabled within
the meaning of RICRA.

See R.I. Gen. Laws § 42-87-1.

Quite the

contrary: his claims are predicated precisely on his lack of
disability.

Because Smith has failed to address the RICRA claims,
they could be considered waived.
“An issue raised in the
complaint but ignored at summary judgment may be deemed waived.”
Champlin’s Realty Assocs. v. Carcieri, No. C.A.06-135, 2006 WL
2927632, at *4 (D.R.I. Oct. 12, 2006) (quoting Grenier v.
Cyanamid Plastics, Inc. 70 F.3d 667, 678 (1st Cir. 1995)).
11

18

Therefore, the Court grants summary judgment in favor of
UPS and Local 251 on Counts III and IV respectively.
IV.

CONCLUSION
Based on the foregoing reasons, Defendant Local 251 of the

International

Brotherhood

of

Teamsters’

Judgment, ECF No. 13, is GRANTED.

Motion

for

Summary

Likewise, Defendant United

Parcel Service, Inc.’s Motion for Summary Judgment, ECF No. 14, is
GRANTED.

IT IS SO ORDERED.

William E. Smith
District Judge
Date: September 14, 2020

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