Mayes v. Rayfield et al

Filing 48

ORDER granting Defendant's 37 Motion for Summary Judgment; dismissing all of Plaintiff's claims; striking all pending Motions 36 . Signed by Judge Ricardo S. Martinez. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARK MAYES,
Plaintiff,

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v.

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CASE NO. C18-0700-RSM
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

ANGIE RAYFIELD, et al.,
Defendants.

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I.

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INTRODUCTION

This matter comes before the Court on Defendant Service Employees International Union
6’s Motion for Summary Judgment against pro se Plaintiff Mark Mayes. Plaintiff filed suit
alleging discrimination on the basis of race under Title VII of the Civil Rights Act of 1964 (42
U.S.C. §§ 2000e) (“Title VII”) and 42 U.S.C. § 1981. Plaintiff also appears to allege breach of
duty of fair representation. Having reviewed Defendant’s Motion, Plaintiff’s Response, and all
documents submitted in support thereof, the Court GRANTS Defendant’s Motion for Summary
Judgment.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1

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II.

BACKGROUND

Defendant Service Employees International Union 6 (“the Union”) is a labor organization
that serves as the exclusive bargaining representative for janitorial workers employed by ABM
janitorial services (“ABM”). Dkt. #39 at ¶ 3-5. The King County Master Labor Agreement (“the
CBA”) is the collective bargaining agreement between the Union and North American Property
Services, of which ABM is an employer member. Dkt. #40 at ¶ 5-6. The CBA sets forth a
procedure for grievances and arbitrations under Article 18 and states that any disciplinary actions,
such as termination of employment, may be appealed through the grievance process. Dkt. #40 at
48-50. However, Article 12.1 clarifies that new employees may not challenge their termination
through the grievance procedure: “During the first five hundred and twenty (520) hours worked
for the Employer, any employee may be discharged without cause or prior notice and without
recourse to the grievance procedure.” Id. at 38.
Mr. Mayes worked as a janitor for ABM from September 2017 through October 2017,
working a total of 246 hours over the course of his employment. Dkt. #39 at 6. Mr. Mayes was
therefore a probationary employee at the time of his termination, having worked less than the 520
hours required under Article 12.1 of the CBA to challenge his termination through the grievance

17 process. Mr. Mayes claims that during his employment at ABM, he faced at least four instances
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of racial discrimination, including being called the N-word, a manager’s racially-charged
comment about a rope, and an assault he believes was racially motivated. Dkt. #38 at 15-18. Mr.
Mayes states that he complained to ABM management at least four times and requested that
management notify the Union. Dkt. Id. at 15-19. Neither Mr. Mayes nor ABM’s management
informed the Union of these complaints prior to his termination. Dkt. #39 at ¶ 7.
On December 29, 2017, after Mr. Mayes’ termination from ABM, he contacted the Union
to discuss his claims. Dkt. #39 at ¶ 8. Mr. Mayes spoke with Angie Rayfield, an organizer for
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2

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the Union, and stated that ABM terminated him after he reported discrimination and harassment.
Based on this conversation, Ms. Rayfield contacted Heather Musgrove, the human resources
manager for ABM, to discuss Mr. Mayes’ claims and the circumstances of his termination. Dkt.
#40 at 60-61. Ms. Rayfield learned that ABM had terminated Mr. Mayes for a fight that occurred
on the employer’s premises and that he was still on probation when he was terminated. Dkt. #39
at ¶¶ 9-10.
On January 3, 2018, Ms. Rayfield contacted Mr. Mayes to explain that the Union could
not bring a grievance on his behalf because of the probationary provision under Article 12.1 of
the CBA. Dkt. #40 at ¶¶ 11-12. Ms. Rayfield informed Mr. Mayes of this limitation for the
second time on or about January 11, 2018, when he called again to discuss his claims. Id. at ¶¶
13-14. However, Ms. Rayfield suggested other courses of action for Mr. Mayes, including filing
a complaint against ABM with the Equal Employment Opportunity Commission (“EEOC”) or
the Office of Civil Rights. Id. at ¶ 14. Mr. Mayes acknowledged that Ms. Rayfield had informed
him about a CBA provision that dealt with probationary employees. Dkt. #38 at 9.
After speaking with Ms. Rayfield on January 11, 2018, Mr. Mayes lodged a complaint
with the EEOC alleging discrimination and harassment while employed at ABM. Id. at ¶ 14. The

17 EEOC dismissed Mr. Mayes’ charge and provided him a right to sue letter. Dkt. #36 at ¶ 10. Mr.
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Mayes also filed a complaint against ABM for discrimination that was mediated by the EEOC,
which resulted in a settlement with ABM. Dkt. #38 at 6-8. On April 9, 2018, Mr. Mayes filed
an unfair labor practice charge with the National Labor Relations Board (“NLRB”) against the
Union for failure to process his grievance. Dkt. #36 at ¶ 11. After investigating Mr. Mayes’
claims, the NLRB dismissed Mr. Mayes’ charge on June 14, 2018 finding “insufficient evidence
to establish that the Union unlawfully failed to represent you by not filing a grievance over your
charge.” Dkt. #39 at 15. The NLRB cited Article 12.1 of the collective bargaining agreement
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3

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and explained that because Mr. Mayes was discharged before he had worked 520 hours, he was
ineligible to participate in the Union’s grievance and arbitration process. Id.
Mr. Mayes, proceeding pro se, filed this action against the Union and Ms. Rayfield in the
U.S. District Court for the Western District of Washington on May 15, 2018. Dkt. #1. After the
Court granted two motions to dismiss Plaintiff’s claims for failure to state a claim, see Dkts. #19,
#30, Mr. Mayes filed a Third Amended Complaint on April 19, 2019 claiming violation of Title

7 VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. §1981. Dkt. #31 at 1. His
8 complaint also appears to allege that the Union breached its duty of fair representation for failure
9 to file a grievance on his behalf. Id. at 5-6. Although Plaintiff’s Third Amended Complaint
10 appears to allege individual claims against Ms. Rayfield for violations of Title VII, see Dkt. #31
11 at 1-2, the Court previously dismissed these claims with prejudice. Dkt. #30 at 5.
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Defendant Union moved for summary judgment on October 15, 2019 on the basis that

13 Article 12.1 of the CBA prevented it from pursuing a grievance for Mr. Mayes’ termination given
14 his probationary status. Dkt. #37. Mr. Mayes has filed a document titled “Declaration Supporting
15 Verdict” that the Court interprets as a Response. Dkt. #43. Mr. Mayes also filed two surreplies,
16 Dkts. #46, #47, but provided no notice to the Court as required by this district’s Local Rules. See
17 Local Rules W.D. Wash. LCR 7(g)(1). Mr. Mayes has also filed a cross-motion for summary
18 judgment on his claims. Dkt. #36.
III.

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DISCUSSION

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A. Legal Standard

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Summary judgment is appropriate where “the movant shows that there is no genuine

22 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
23 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, (1986). Material facts are
24 those which might affect the outcome of the suit under governing law. Id. at 248. In ruling on
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4

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summary judgment, a court does not weigh evidence to determine the truth of the matter, but
“only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d
547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d
744, 747 (9th Cir. 1992)).
On a motion for summary judgment, the court views the evidence and draws inferences
in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S.
Dep’t of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable
inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d
on other grounds, 512 U.S. 79 (1994). However, the non-moving party must make a “sufficient
showing on an essential element of her case with respect to which she has the burden of proof”
to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B. Discrimination Claims
The Court finds that Mr. Mayes’ discrimination claims fail as a matter of law. Under
Section 703(c)(1) of Title VII, it is “an unlawful employment practice for a labor organization . . .
to discriminate against[ ] any individual because of his race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(c)(1). A union violates Title VII if it deliberately declines to pursue a

17 member’s claim because of the member’s race. Beck v. United Food & Commercial Workers
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Union, Local 99, 506 F.3d 874, 882 (9th Cir. 2007) (citing Pejic v. Hughes Helicopters, Inc., 840
F.2d 667, 671–74 (9th Cir. 1988)). The same legal principles that apply in a Title VII dispute

20 “apply with equal force in a § 1981 action.” Reynaga v. Roseburg Forest Prod., 847 F.3d 678,
21 686 (9th Cir. 2017).
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In Title VII and Section 1981 actions against labor unions, Courts apply the McDonnell
Douglas burden-shifting framework. Beck, 506 F.3d at 882 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Under the McDonnel Douglas framework, a union member
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5

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establishes a prima facie claim of discrimination if he introduces evidence that he “was singled out
and treated less favorably than others similarly situated on account of race or any other criterion
impermissible under the statute.” Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 537
(9th Cir. 1982). A showing of disparate treatment raises an inference of discrimination “because
experience has proved that in the absence of any other explanation it is more likely than not that
those actions were bottomed on impermissible considerations.” Furnco Constr. Corp. v. Waters,
438 U.S. 567, 579–80 (1978).
If the plaintiff establishes a prima facie case of discrimination against the union, the burden

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shifts to the union to articulate a legitimate, non-discriminatory reason for the less favorable
treatment. Beck, 506 F.3d at 883. The union must provide “reasons for its actions which, if
believed by the trier of fact, would support a finding that unlawful discrimination was not the cause
of the . . . action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). Once the defendant
produces sufficient evidence to satisfy this burden, the burden shifts back to the plaintiff to
persuade the trier of fact that he has been the victim of intentional discrimination. Beck, 506 F.3d
at 883.
Here, Mr. Mayes has provided no evidence to establish a prima facie case of discrimination.

17 He has failed to introduce any evidence to show that the Union singled him out or treated him less
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favorably than a similarly-situated probationary union member. However, Mr. Mayes maintains
that no such evidence is necessary and claims that “[t]he only evidence needed to show

20 discrimination is the company not taking action in the face of discrimination.” Dkt. #43 at 2. He
21 also references his alleged harassment by ABM’s management and claims that the Union did
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nothing to investigate his complaint. Dkt. #46 at 2-4. However, it is undisputed that the Union
had no knowledge of Mr. Mayes’ desire to use the Union’s grievance process until he contacted
Ms. Rayfield in December 2017—nearly two months after his termination. Dkt. #40 at ¶¶ 7-8;
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6

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Dkt. #39 at ¶ 9. Based on Mr. Mayes’ unsupported allegations, no reasonable trier of fact could
draw an inference of discriminatory intent from the Union’s decision to not pursue Mr. Mayes’
grievance.
Even if Mr. Mayes could establish a prima facie case of discrimination, Defendants have
provided a legitimate reason for not pursuing his grievance. There is no material dispute of fact
that the CBA prevents the Union from filing grievances on behalf of probationary employees. See
Dkt. #40 at 38 (“During the first five hundred and twenty (520) hours worked for the Employer,
any employee may be discharged without cause or prior notice and without recourse to the
grievance procedure.”)

There is likewise no material dispute of fact that Plaintiff was a

probationary employee at ABM at the time of his termination. Dkt. #39 at 6.
In his Response and surreply, Mr. Mayes invokes Goodman v. Lukens to argue that the
Union discriminated against him by failing to file a grievance on his behalf against ABM. Dkts.
#43 at 1; #47 at 1 (citing 42 U.S. 656, 659 (1987)). He quotes, in part: “The District Court
concluded that the Unions were also guilty of discriminatory practices, specifically in failing to
challenge discriminatory discharges of probationary employees, failing and refusing to assert
instances of racial discrimination as grievances, and in tolerating and tacitly encouraging racial

17 harassment.” Dkt. #47 at 1 (citing Goodman, 42 U.S. at 659–60). Goodman is inapposite here,
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given that the case addressed a union policy of “rejecting disparate-treatment grievances presented
by blacks solely because the claims assert racial bias and would be very troublesome to process.”

20 Goodman, 42 U.S. at 669. Here, Mr. Mayes has produced no evidence that the Union pursued or
21 currently pursues a policy of rejecting disparate-treatment grievances. On the contrary, the
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undisputed facts show that the Union declined to pursue his grievance because of Mr. Mayes’
probationary status, as required by Article 12.1 of the CBA.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7

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Accordingly, the Court finds that Mr. Mayes’ discrimination claims under Title VII and 42
U.S.C. § 1981 fail as a matter of law.
C. Breach of Duty of Fair Representation
The Court also finds that as a matter of law, the Union did not breach its duty of fair
representation to Mr. Mayes. As the exclusive bargaining representative for its union employees,
a labor organization owes its members a duty of fair representation. Beck, 506 F.3d at 879 (“[I]t
must be the duty of the representative organization 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.’”) (quoting DelCostello v. Int’l Bhd. of Teamsters, 462
U.S. 151, 164 n.14 (1983)).
To show that a union breached its duty of fair representation, a plaintiff must demonstrate
that the union’s conduct towards a member was “arbitrary, discriminatory, or in bad faith.” Vaca
v. Snipes, 386 U.S. 171, 190 (1967). Arbitrary conduct is defined as union conduct that is
“irrational” and “without a rational basis or explanation.” Marquez v. Screen Actors Guild, Inc.,
525 U.S. 33, 46 (1998). In concluding that union conduct breached the duty of fair representation,
a court must find “either that the union conduct at issue is a discriminatory or bad faith exercise

17 of judgment, or is an arbitrary (meaning wholly irrational, inexplicable, or unintentional) action
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that substantially injured an employee.” Beck, 506 F.3d at 880.
Here, Mr. Mayes does not claim that the Union breached the terms of its CBA or otherwise

20 acted irrationally or arbitrarily. Rather, he appears to challenge the legality of Article 12.1 for
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terminations. See Dkt. #36 at 1 (“Here it states an employer can discharge an employee for any
reason. This is unlawful practice!”). However, unions are not legally required to pursue their
members’ grievances. See Evangelista v. Inlandboatmen’s Union of Pac., 777 F.2d 1390, 1395
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8

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(9th Cir. 1985) (“[A]n employee has no absolute right to have his grievance taken to arbitration,
and the union may reject unmeritorious grievances at the first step in the contractual procedure.”).
Contrary to Mr. Mayes’ argument, unions are afforded “substantial discretion” to decide whether
and to what extent to pursue a particular grievance. Vegas v. United Steelworkers, Local 12-591,
73 F. Supp.3d 1260, 1269 (2014) (citing Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273
(9th Cir. 1983)).
This discretion allows a union to exclude probationary employees from using the union’s
grievance procedure to process their termination disputes.

Contract provisions that treat

probationary employees differently from non-probationary employees in terms of accessing a
union’s grievance procedures do not breach a union’s duty of fair representation. Van Leeuwen
v. U.S. Postal Serv., 628 F.2d 1093, 1097 (8th Cir. 1980) (Upholding CBA provision that
precluded member employees from challenging termination through union’s grievance process
for first ninety days of employment). Consequently, unions commonly use provisions like Article
12.1 in their CBAs to limit access to grievance procedures until employees have worked a certain
length of time at the company. See, e.g., Trumbauer v. Grp. Health Co-op. of Puget Sound, 635
F. Supp. 543, 545 (W.D. Wash. 1986) (Provision allows discharge of member employees without

17 recourse to grievance procedure for first three months of employment); see also Hollins v. Kaiser
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Found. Hosps., 727 F.2d 823, 825 (9th Cir. 1984) (same).
Accordingly, the Court finds that Mr. Mayes’ breach of duty of fair representation claim

20 fails as a matter of law.
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IV.

CONCLUSION

Having reviewed the relevant pleadings, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS that:

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9

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(1) Defendant’s Motion for Summary Judgment, Dkt. #37, is GRANTED.

All of

Plaintiff’s claims are DISMISSED.
(2) All pending Motions in this case are STRICKEN.
(3) This case is CLOSED.

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DATED this 2 day of December 2019.

A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10