Alan C. Kay, Senior United States District Judge.
For the reasons set forth below, the Court GRANTS summary judgment in response to Defendant Hawaiian Airlines, Inc.'s Motion to Dismiss, or in the Alternative, Grant Summary Judgment, ECF No. 85, the Joinder thereto of Defendant Association of Flight Attendants-CWA, AFL-CIO, ECF No. 90, Defendant Association of Flight Attendants-CWA, AFL-CIO's Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 94, and the Joinder thereto of Defendant Hawaiian Airlines, Inc., ECF No. 99.
On October 3, 2013, Plaintiff Matthew J. Debeikes ("Debeikes" or "Plaintiff") filed a complaint against Defendant Hawaiian Airlines, Inc. ("Hawaiian Airlines") and Defendant Association of Flight Attendants-CWA, AFL-CIO ("AFA") (collectively, "Defendants"). Compl., ECF No. 1. The Complaint alleged that Defendants forced Plaintiff into early retirement on May 29, 2013.
On October 30, 2014, both Defendants moved for summary judgment. AFA filed a Motion for Summary Judgment ("MSJ") as to Plaintiff's claim that it breached the union's DFR, ECF No. 51, and Hawaiian Airlines filed a MSJ as to all of Plaintiff's claims, ECF No. 54.
On February 17, 2015, the Court granted Defendants' MSJs as to all of Plaintiff's claims. ECF No. 75. In the Order, the Court concluded that none of Plaintiff's claims, as presented in the Complaint, was viable. First, the Court found that Plaintiff's allegations of "constructive discharge," related to Hawaiian Airlines' "refus[al] to abide by the CBA," were preempted by his breach of CBA claim. In addition, the Court found that the claim of constructive discharge was unsupported on the merits.
The Order dismissed Plaintiff's claims without prejudice and granted Debeikes 30-days' leave to file an Amended Complaint.
On March 25, 2015, Hawaiian Airlines filed its Motion to Dismiss, or in the Alternative, Grant Summary Judgment ("Hawaiian Airlines' MTD/MSJ"), ECF No. 85, accompanied by a Concise Statement of Facts ("Hawaiian Airlines' CSF"), ECF No. 86.
On April 14, 2015, AFA also filed its own Motion to Dismiss or, in the Alternative, for Summary Judgment ("AFA's MTD/ MSJ"), ECF No. 94, accompanied by a Concise Statement of Facts ("AFA's CSF"), ECF No. 95. Hawaiian Airlines filed a Joinder to AFA's MTD/MSJ on May 7, 2015. ECF No. 99.
On May 7, 2015, Plaintiff filed an Opposition to AFA's MTD/MSJ, ECF No. 103, and a Concise Statement in Opposition to AFA's MTD/MSJ ("Plf.'s CSF — AFA"), ECF No. 105. On the same day, Plaintiff also filed an Opposition to Hawaiian Airlines' MTD/MSJ, ECF No. 102, and a Concise Statement in Opposition to Hawaiian Airlines' MTD/MSJ ("Plf.'s CSF — Hawaiian Airlines"), ECF No. 104. Neither of Plaintiff's Oppositions raised any issue related to discovery. On May 14, 2015, AFA filed a Reply Memorandum in Support of MTD/MSJ ("AFA Reply"), ECF No. 108, and Hawaiian Airlines filed a Reply Memorandum in Support of MTD/MSJ, ECF No. 110 ("Hawaiian Airlines Reply"), ECF No. 110. Hawaiian Airlines' MTD/MSJ and AFA's MTD/MSJ were set for a consolidated hearing on May 28, 2015.
On May 11, 2015, the Court issued a Minute Order observing that Defendants' MTD/MSJs were filed after the dispositive motions deadline had passed.
The parties did not reach an agreement as to a stipulation to extend the dispositive motions deadline. Instead, the parties attended a telephonic status conference with Magistrate Judge Puglisi on May 27, 2015, after which the Court issued an order extending the dispositive motions deadline, nunc pro tunc, to April 15, 2015. This allowed Defendants' motions to be considered timely. Minutes of Conf. of May 27, 2015, ECF No. 116. The Court's Minutes also reflect that Plaintiff's counsel raised at the May 27, 2015 status conference that "he would like to depose the declarants who submitted declarations in support of the Motion to Dismiss or, in the Alternative, for Summary Judgment."
Plaintiff's counsel raised the same request the next day at the Court's scheduled hearing on Defendants' summary judgment motions. He made an oral motion to continue the hearing and read the minutes of the May 27, 2015 conference into the record. The Court granted Plaintiff's oral motion to continue the hearing, in order to allow Plaintiff time to file a written motion to reopen discovery.
Plaintiff filed his Motion to Reopen Discovery on June 16, 2015. ECF No. 121. Magistrate Judge Puglisi denied Plaintiff's motion in its entirety on July 17, 2015, for the reasons explained in his Order Denying Plaintiff Matthew J. Debeikes' Motion to Reopen Discovery. ECF No. 126. Plaintiff appealed Magistrate Judge Puglisi's order on July 27, 2015, ECF No. 127, and the Court set a hearing on Plaintiff's appeal for September 3, 2015, ECF No. 130.
As a preliminary matter, the Court will consider documents outside the pleadings in resolving the instant motions. If matters outside the pleadings are presented to and not excluded by the Court on a motion to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6), the motion is treated as one for summary judgment under Rule 56, and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). Where, as here, a movant expressly styles a motion as requesting dismissal or summary judgment in the alternative, a nonmovant is considered to have been "fairly apprised that the district court may look beyond the pleadings."
Additionally, the Court will incorporate below the relevant factual findings set forth in its prior Order.
Plaintiff was employed as a flight attendant by Hawaiian Airlines from July 9, 1986 to May 29, 2013, during which time he was a member of AFA. Order at 3, ECF No. 75. During the period of Debeikes' employment, a CBA between AFA and Hawaiian Airlines covered the terms and conditions of employment for flight attendants. Hawaiian Airlines maintained a set of "House Rules" during Debeikes' employment. They provide that sexual harassment is unacceptable and may result in discipline, including discharge.
On or about January 14, 2013, Plaintiff served as a flight attendant on a flight from Maui to Seattle with Jane Doe 1 ("Doe 1"). During that flight, Plaintiff engaged her in what his declaration testimony describes as "off-color banter." He also discussed with her certain "graphic" online content. During the return flight the next day, it is undisputed that Plaintiff attempted to massage Doe 1's shoulder.
Debeikes wrote an apology letter to Doe 1 and had it delivered to her by another flight attendant. Plaintiff later met with his supervisor, Susan Moss ("Moss"), to describe his conduct toward Doe 1, without disclosing names or dates. Moss received further reports regarding the incident from Burt and the In-Flight Manager for Hawaiian Airlines to whom Doe 1 had recounted the incident in detail.
On or about January 30, 2013, Hawaiian Airlines informed Debeikes that it was holding him out of service with pay, pending an investigation into whether Debeikes had violated the company's House Rules and Policy.
On March 8, 2013, Hawaiian Airlines personnel met with Plaintiff for a fact-finding interview. Debeikes was accompanied by AFA representatives Scott Akau ("Akau") and Henton, who also met with Debeikes to discuss the investigation during the hour prior to the meeting. At the beginning of the meeting, Henton and Akau requested to examine all documents pertaining to the investigation, citing the CBA's § 23.E.10.c.
Hawaiian Airlines refused to turn over any investigatory documents. It was the company's position that CBA § 23.E.10.c applied only to disciplinary proceedings, and not to fact-finding interviews. AFA disagreed, and Henton and Akau instructed Debeikes not to answer questions. Having reached an impasse over their conflicting interpretations of CBA § 23.E.10.c, the parties terminated the meeting.
On March 29, 2013, by letter, Hawaiian Airlines indicated that it wanted to complete its investigation and asked Debeikes if he wanted to be interviewed again. The letter indicated that if he did not participate, the investigation would be concluded without his input. It also stated that Hawaiian Airlines still refused to provide "all documents related to and generated from this investigation," and it described the subject of the investigation broadly as "allegations that you may have engaged in conduct violating Company House Rules and the Discrimination and Harassment-Free Work Place policy."
On April 4, 2013, Henton sent Debeikes a letter on behalf of AFA, advising him of his rights and pointing out that the company could not penalize him for choosing not to attend the interview. The letter noted that AFA continued to disagree with Hawaiian Airlines regarding whether its refusal
Nonetheless, Debeikes agreed to meet with Hawaiian Airlines personnel again on April 5, 2013. Debeikes was accompanied to the interview by Henton and Akau, who also met with him before the meeting.
Trumble's declaration adds that Plaintiff asked him no questions regarding AFA's position.
In the course of the April 5, 2013 interview, Plaintiff made a variety of admissions regarding the conduct that was the subject of the company's investigation. He stated, inter alia, that he attempted to give Doe 1 a shoulder rub, may have touched her again thereafter, and made sexually explicit comments to her. Plaintiff was also interviewed at the meeting about conduct related to another flight attendant, Jane Doe 2 ("Doe 2"). Debeikes was asked about allegations that he, inter alia, rubbed her shoulders and made several specific comments of a highly graphic sexual nature.
Meanwhile, AFA and Hawaiian Airlines had continued to discuss their disagreement regarding CBA § 23.E.10.c and the company's obligation to provide investigatory documents.
On April 12, 2013, one week after Debeikes' interview with the company, AFA filed Grievance No. 46-99-02-07-13, entitled "Grievance: MEC: EEOC Investigation Documents" (the "Grievance"). It challenged Hawaiian Airlines' refusal to provide documents in what AFA considered a violation of the CBA, specifically § 23.E.10.c.
Additional declaration testimony submitted by AFA explains that a MEC grievance
Trumble's declaration testimony is that, had Plaintiff gone through with the disciplinary hearing, AFA would have filed an individual LEC grievance on his behalf regarding the company's denial of documents and any discipline he was issued. Order at 15, ECF No. 75. Henton and Akau have also attested that AFA would have filed such a grievance and taken it to arbitration, had Debeikes gone to the hearing and been disciplined. Henton Decl. ¶ 32, ECF No. 95-1; Decl. of Scott Akau ("Akau Decl.") ¶ 4, ECF No. 95-2.
It is also Henton's declaration testimony that AFA chose to file a MEC grievance, rather than an individual LEC grievance, in order to attain relief for both Honolulu and Los Angeles-based flight attendants. Henton Decl. ¶¶ 5-10, ECF No. 95-1. Specifically, the Grievance requested that Hawaiian Airlines "[c]ease and desist refusal to provide documentation in any and all Company investigations" and "[r]everse the discipline and reinstate and make whole any and all affected flight[] attendants that were disciplined or discharged based upon the investigations." Grievance, ECF No. 135.
Henton attests that it is AFA's normal practice to file MEC grievances, rather than individual LEC grievances, "where a whole class of Flight Attendants are affected, both in Honolulu, and in Los Angeles," as a result of a CBA dispute with Hawaiian Airlines. Henton Decl. ¶ 10, ECF No. 95-1. This is evidently because filing an individual "Non-Disciplinary Grievance" under CBA § 23.C "would do nothing for the Los-Angeles based Flight Attendants who could be adversely affected by Hawaiian Airlines' interpretation" of its CBA obligations.
On May 21, 2013, Hawaiian Airlines informed Debeikes by letter that it had concluded its investigation and believed he had violated the company's Policy and House Rules related to sexual harassment and unprofessional conduct. A disciplinary hearing was set for May 30, 2013.
On May 23, 2013, Plaintiff spoke by telephone with Akau and asked him whether he could retire from Hawaiian Airlines before the disciplinary hearing.
On May 29, 2013, Debeikes tendered a retirement letter to Hawaiian Airlines. He also signed formal retirement paperwork with the company, for an effective retirement date of May 30, 2013.
Debeikes' declaration testimony is that a Hawaiian Airlines employee, Gail Kim-Moe ("Kim-Moe"),
Plaintiff has not disputed that he was also reminded by Kim-Moe that he did not have to retire and could instead proceed with the hearing. Order at 17, ECF No. 75. He contends, however, that "the company put me in a situation where if I chose to attend the hearing and lost (as I was told I would before any witness testified or document was received), I would [be] unemployed with a sexual harassment on my record." He also cites concerns that he would have had "no way to visit my daughter" if he were terminated, because flight benefits were not guaranteed to terminated (versus retired) employees. Debeikes Decl. ¶¶ 7-8, ECF No. 105-1.
After Plaintiff retired, he was no longer a member of AFA. Because AFA may only file grievances on behalf of members, it could not file grievances on Debeikes' behalf from his retirement date forward. Order at 16 n.10, ECF No. 75. Debeikes' declaration testimony is that he was "unaware that signing the paperwork released AFA from any obligation to represent me."
On or about May 30, 2013, Plaintiff asked Hawaiian Airlines whether he could rescind his retirement. Order at 18, ECF No. 75. Plaintiff initially was told by a Hawaiian Airlines employee that he could "un-retire," although the company would move forward with his disciplinary hearing. However, Hawaiian Airlines ultimately conveyed to AFA that it was unwilling to rescind Plaintiff's retirement, which in turn was conveyed to Debeikes.
As noted above, AFA's class-based MEC grievance regarding Hawaiian Airlines' production of investigation documents had been filed on April 12, 2015, and it remained pending at the time of Plaintiff's retirement.
As set forth in that Opinion and Award, the SBA concluded that "the Company violated Section 23.E.10.c with regard to the cases of Doe I and Doe II" (Doe I evidently being Plaintiff). However, the Opinion and Award limited its remedy to ordering that "[t]he Company shall cease and desist from such violations in future cases."
As noted above, the Court will resolve the instant motions by considering documents outside the pleadings. The standard of review applicable to summary judgment motions under Rule 56 therefore applies. Fed. R. Civ. P. 12(d).
A party is entitled to summary judgment on any claim or defense if it can be shown "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"
A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party."
The movant has the burden of persuading the court as to the absence of a genuine issue of material fact.
As explained in the Court's prior Order, the Railway Labor Act ("RLA") applies to the airline industry and creates a mandatory arbitration scheme to handle disputes "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions" in covered industries. 45 U.S.C. §§ 153, 181. The statute's reservation of arbitral jurisdiction in such cases was designed to promote stability in labor relations and ensure the "prompt and orderly settlement" of claims outside the courts.
Nonetheless, where an employee in a covered industry contends both that (1) her employer breached a CBA, and (2) her union breached its DFR in regard to challenging the employer's CBA violation, she may bring both of her claims in federal court. This is referred to as a "hybrid § 301/fair representation" claim.
The substantive law of hybrid § 301/fair representation claims demands that a plaintiff prove both the union's breach of the DFR and the employer's breach of the CBA.
In his Amended Complaint, Debeikes' hybrid § 301/fair representation claim encompasses the following allegations: "(1) that the AFA failed to even consider a meritorious 23(C) grievance and (2) that Hawaiian predetermined to terminate Debeikes prior to any hearing, i.e. before
The Court concludes that it need not consider the SBA's Opinion and Award in resolving the instant motions and need not delay such resolution on the basis of any continuing appeal proceedings related thereto.
AFA filed its class-based MEC Grievance (on behalf of its full membership) on April 12, 2013, as set forth above. That grievance, of which Plaintiff was not informed, related to "EEOC Investigation Documents" and challenged Hawaiian Airlines' "refusal to provide documentation" during the company's "confidential `EEOC investigation[s].'" The grievance requested that Hawaiian Airlines "cease and desist refusal to provide documentation in any and all Company investigations" and "[r]everse the discipline and reinstate and make whole any and all affected flight attendants that were disciplined or discharged based upon [these] investigations." Grievance, ECF No. 135.
The Opinion and Award, issued over two years later on July 15, 2015, concluded that "the Company violated Section 23.-E.10.c. [of the CBA] with regard to the cases of Doe I and Doe II," with "Doe I" evidently being Plaintiff. The Board ordered that Hawaiian Airlines "cease and desist from such violations in future cases." Opinion and Award at 20, ECF No. 132. The Board did not, however, order any reinstatement or reversal of discipline for any employees. To the contrary, the Opinion and Award specifically notes that neither "Doe I" nor "Doe II" filed individual disciplinary grievances, and that "Doe I" (Debeikes) had already retired.
By its own terms, the Opinion and Award did not create any relief for Plaintiff as a retired member of AFA. Plaintiff is therefore incorrect to suggest that the Opinion and Award itself "entitl[es] Plaintiff to relief as to reinstatement and back pay." Plf. Matthew J. Debeikes' Supp. Br. Regarding the Impact of the Opinion of the Arbitrator at 4, ECF No. 138. Rather, the Opinion and Award limited its remedy to a prospective cease and desist order applicable during future employee investigations. As AFA and Hawaiian Airlines emphasize in their supplemental briefs, this relief has no bearing on the Court's decision as to whether an individual remedy may be available for Plaintiff, as a retiree, on his hybrid § 301/fair representation claim against AFA and Hawaiian Airlines.
The Court observes that AFA's underlying Grievance also did not address the
The Court also need not delay its resolution of Defendants' MTD/MSJs pending any continuing appeal proceedings related to the Opinion and Award. Hawaiian Airlines has filed a petition to vacate the Opinion and Award, which is currently pending before Magistrate Judge Kurren.
Lastly, the Court notes that the Opinion and Award indicates that the SBA "retains jurisdiction over this case" for one year "should any dispute arise about the application of the cease and desist order and the application of Section 23.E.10.c as described in this Opinion." Opinion and Award at 21, ECF No. 132. This narrow retention of jurisdiction as to the implementation of the SBA's order does not divest the Court of jurisdiction to resolve Plaintiff's independent hybrid § 301/fair representation claim.
In his Amended Complaint, Debeikes claims that Hawaiian Airlines "constructively discharged Plaintiff without `just cause'" by "predetermin[ing] to Terminate Plaintiff in violation of the CBA's due process requirement of a fair hearing in accordance with the CBA's provisions set forth in Article 23." Am. Compl. ¶ 13, ECF No. 80. In support, Plaintiff's Amended Complaint states that Kim-Moe informed Plaintiff at his retirement paperwork signing of May 29, 2013 that "he would be terminated if he went to [the] hearing" scheduled for the next day.
Debeikes contends that this "predetermined" termination violated what he refers to as "the CBA's due process requirement of a fair hearing." Am. Compl. ¶ 13, ECF No. 80. He evidently views this due process/fair hearing requirement as implied by the CBA's "express[] provi[sion] that all cases of discharge, for whatever cause, shall be subject to the grievance procedure"
On these allegations, the Court concludes that it continues to lack jurisdiction to hear Debeikes' breach of CBA claim against Hawaiian Airlines due to his failure to exhaust contractual remedies. In addition, to the extent that Plaintiff might intend his references to "constructive discharge" to present an independent tort claim, such claim is again preempted by his breach of CBA claim. Even if it were not preempted, the Court finds that such a claim would lack merit.
The Court finds that it lacks subject matter jurisdiction to hear Debeikes' breach of CBA claim where he did not first exhaust contractual remedies available under the CBA. The Court reiterates this legal requirement, as set forth in its prior Order:
Order at 31, ECF No. 75.
Here, as Plaintiff admits, a comprehensive CBA between AFA and Hawaiian Airlines covered the terms and conditions of employment for flight attendants "during the entire period involved here." Am. Compl. ¶ 6, ECF No. 80. The CBA provides for grievance procedures related to both disciplinary actions (including discharge) and non-disciplinary actions.
However, no grievance was filed with respect to Plaintiff's alleged "predetermined termination."
First, Plaintiff has not shown that resort to the CBA grievance procedures would be "futile." The fact that grievance procedures are administered by union and company representatives does not by itself render resort to such processes futile, nor does the fact that administrators are "likely to rule against the [grievant] on the merits."
Here, Debeikes did not attempt to grieve his alleged "predetermined termination," either before or after the scheduled disciplinary hearing. Instead, he retired and filed the instant lawsuit. He argues that "the Hawaiian tribunal would have been biased against him, i.e., predetermined to terminate him" at his disciplinary hearing. Opp. to Hawaiian Airlines' MTD/MSJ at 4, ECF No. 102. In essence, he suggests that it would have been "futile" to attend his disciplinary hearing. But even assuming arguendo that this was the case, Plaintiff has not offered evidence that it would have been "futile" to initiate a grievance and arbitration in response to the company's actions. Plaintiff never tested the futility of the CBA's grievance and arbitration procedures, because he simply did not use them.
As the Court noted in its prior Order, an employee's choice to retire prior to invoking CBA grievance procedures also does not make resort to such processes "futile." Order at 35, n.24, ECF No. 75 (citing
Second, Plaintiff suggests but fails to demonstrate that Hawaiian Airlines "repudiated" the CBA's grievance procedures. Opp. to Hawaiian Airlines' MTD/ MSJ at 7, ECF No. 102. His position is
Third, the Court finds that Plaintiff has not raised a genuine issue of material fact as to whether AFA breached its DFR by "fail[ing] to investigate or process any grievance regarding the predetermined termination." Am. Compl. ¶ 13, ECF No. 80. The Court observes that the standard of review for such union action (or inaction) is high: courts generally must accord union decisions "substantial deference," recognizing that the union "must balance many collective and individual interests when it decides whether and to what extent to pursue a particular grievance."
Ministerial or procedural union actions constitute DFR breaches where they are arbitrary, discriminatory, or in bad faith, but an exercise of the union's judgment constitutes a DFR breach only where it is shown to be discriminatory or in bad faith.
The Ninth Circuit has also explained that an alleged breach of the DFR will excuse exhaustion of contractual remedies in only two situations: (1) where the union has the "sole power" under the CBA to invoke the grievance process and "wrongful[ly]" refuses to do so, or (2) where a grievant alleges a breach of the DFR with regard to the negotiation of the CBA terms themselves.
Plaintiff makes no allegation that AFA breached its DFR in the course of negotiating the CBA terms. He does suggest, however, that AFA was "aware that Defendant Employer predetermined to [t]erminate Plaintiff in violation of the CBA's due process requirement of a fair hearing" and nonetheless "failed to investigate or process any grievance regarding the predetermined termination." Am. Compl. ¶ 13, ECF No. 80; Opp. to AFA's MTD/MSJ at 5, ECF No. 103 ("AFA never intervened or pursued a grievance regarding the denial of a fair disciplinary hearing.")
Plaintiff's theory that AFA failed to appropriately investigate or process this grievance is premised on Debeikes' contention that he "notified AFA [of] the type of comments [Hawaiian Airlines] was making to Plaintiff prior to any hearing (predetermined termination)." Opp. to AFA's MTD/ MSJ at 5, ECF No. 103. Specifically, he claims he "informed Scott Henton of HAL's comments to me and asked if I went to hearing and was terminated would I be able to keep my flight benefits." Debeikes Decl. ¶ 13, ECF Nos. 104-1, 105-1.
The Court concludes, for the reasons explained below, that Plaintiff's allegations do not raise a genuine issue of material fact as to whether AFA "wrongfully" refused to invoke any solely-held power that it had to initiate a grievance on Plaintiff's supposed "predetermined termination."
First, it appears that AFA did not have the "sole" power to file such a grievance on Plaintiff's behalf under the CBA. According to the agreement's express terms, "Non-Disciplinary Grievances" under CBA § 23(C) may be brought by "[a]ny Flight Attendant or group of Flight Attendants who has a grievance concerning any action of the Company affecting such Flight Attendant(s)." CBA § 23(C)(1), AFA's CSF Ex. 1 at HAL00406, ECF No. 95-3; Hawaiian Airlines' CSF Ex. 1 at HAL00406, ECF No. 86-2. The grievance must be filed in writing but can be signed by either "the grievant(s)" or "his/her representative."
At the hearing of October 22, 2015, the Court asked counsel for AFA and Hawaiian Airlines to address the foregoing CBA provision and whether employees may indeed file their own grievances under CBA § 23(c). Counsel for AFA was uncertain, but counsel for Hawaiian Airlines indicated that this is a correct understanding of the CBA. Thus, assuming that Plaintiff himself had the power to initiate a grievance on his own behalf, his failure to exhaust contractual remedies cannot be waived under
Second, regardless of whether Plaintiff was able to file his own grievance under CBA § 23(c), the Court also finds in the alternative that Plaintiff has not raised a genuine issue of material fact as to whether AFA "wrongfully" refused to pursue a grievance related to his supposed "predetermined termination." This is so for at least two reasons.
First, the Court finds that it is not possible to conclude from the available evidence that AFA was even aware, prior to Plaintiff's retirement, that Plaintiff believed Hawaiian Airlines "predetermined to terminate" him. Because Plaintiff retired before making AFA aware of this issue, he foreclosed the union's opportunity to initiate a grievance on such grounds.
Plaintiff's claim that AFA breached its DFR by failing to grieve his "predetermined termination" is premised on his factual contention that he "informed Scott Henton of HAL's comments to me." Debeikes Decl. ¶ 13, ECF Nos. 104-1, 105-1. Kim-Moe's comment regarding termination — the only one that Plaintiff identifies as having even suggested his "predetermined
It is undisputed that neither Henton nor any other AFA representative accompanied Debeikes to his meeting with Kim-Moe. Order at 17, ECF No. 75. Plaintiff also appears to have arrived to the meeting with a pre-prepared retirement letter.
At the Court's hearing of October 22, 2015, Plaintiff's counsel affirmatively stated that Plaintiff shared Kim-Moe's statement with Henton for the first time after May 29, 2013, by leaving phone messages for him the following day. Plaintiff, who was present at the hearing, did not dispute this assertion.
In addition, Henton's unrebutted declaration testimony is that he was on vacation from May 22, 2013-June 7, 2013. Henton Decl. ¶ 27, ECF No. 95-1. Henton's supplemental declaration states that Debeikes' assertion that he "informed me of comments made by Gail Kim-Moe or any representative of Hawaiian Airlines on or after May 29, 2013 ... [is] not true," and that Henton did not receive any telephone calls from Plaintiff or even access his own AFA-issued cellular telephone while on vacation. Henton Supp. Decl. ¶¶ 4-6, ECF No. 108-2.
Plaintiff does not claim to have informed Akau or Trumble of Kim-Moe's statement, even though he had spoken with Akau and Trumble as recently as May 27-28, 2013 and it appears that they (unlike Henton) were available on May 29, 2013.
The declaration testimony of Debeikes' AFA representatives is, to the contrary, that "AFA was not aware that Hawaiian Airlines breached the CBA by predetermining to terminate Plaintiff before the disciplinary hearing." Henton Decl. ¶ 9, ECF No. 94-1; Akau Decl. ¶ 3, ECF No. 95-2. To the recollection of AFA's employees and based upon a review of the union's voicemail and email records, Debeikes never communicated to AFA any desire to have a "predetermined termination" grievance filed against Hawaiian Airlines prior to his retirement. Henton Decl. ¶¶ 27-29, ECF No. 95-1; Akau Decl. ¶ 3, ECF No. 95-2.
The Court observes that this is the first time in this litigation that Plaintiff has claimed that he shared Kim-Moe's comment with Henton on any date. He did not identify this allegation in his verified, un-supplemented answers to interrogatories, which requested details of: (1) "each and every incident in which you learned information which has caused you to believe that the AFA breached its duty of fair
Plaintiff belatedly requested leave to pursue further discovery (specifically, deposition testimony and phone records) regarding his communications with Henton, but that request was denied for the reasons explained at length in the Court's Order Affirming the Magistrate Judge's Order Denying Plaintiff Matthew J. Debeikes' Motion to Reopen Discovery, ECF No. 139.
In light of the foregoing, it is impossible to conclude that AFA was made aware that Hawaiian Airlines allegedly "predetermined to terminate" Plaintiff, or that Plaintiff wished to have any related grievance filed, prior to Plaintiff's retirement.
Plaintiff is correct that, where a union member provides evidence supporting a grievance, a union may breach its DFR where it ignores such grievance or processes it in a "perfunctory manner."
The Court notes that although Plaintiff has argued that he was "unaware" that his representation by AFA ended upon his retirement, this does not change the actual scope of AFA's duties to him. As discussed in the Court's prior Order, union members are "`obligated to exhaust union remedies before resorting to a court action ... [n]ecessarily implied in this obligation is the duty to become aware of the nature and availability of union remedies.'" Order at 38, ECF No. 75 (quoting
Second, Plaintiff has not demonstrated that the union's failure to initiate a "predetermined termination" grievance (even if AFA had such opportunity, which the Court finds it did not) was arbitrary, discriminatory, or in bad faith, sufficient to breach the DFR. The burden of such a showing is significant. To establish "bad faith," Plaintiff must introduce "substantial evidence of fraud, deceitful action, or dishonest conduct" on the part of AFA.
Plaintiff has not demonstrated bad faith, arbitrariness, or discriminatory animus here. AFA representatives have submitted uncontroverted declaration testimony that, had Debeikes attended his disciplinary hearing and either been deprived of a fair hearing or felt "dissatisfied with the discipline he was issued," AFA was "willing to file a grievance and take it to arbitration." Henton Decl. ¶ 32, ECF No. 95-2; Akau Decl. ¶ 4, ECF No. 95-2.
With respect to AFA's grievance-handling strategy, there is no indication that Debeikes was treated differently from any other flight attendants. And even assuming that AFA was aware of Hawaiian Airlines' "predetermination to terminate" Plaintiff and his desire to file a grievance thereon, Debeikes has not shown that a union decision to grieve that predetermination after (rather than before) his disciplinary hearing was arbitrary or in bad faith.
The Court observes that there is also a difference between the union, on the one hand, knowing that Hawaiian Airlines "predetermined to terminate" Plaintiff in a violation of due process and, on the other, simply being aware that termination was likely. Trumble had evidently provided the same opinion to Debeikes prior to his retirement. Order at 16, ECF No. 75. Nothing about this advice appears to have been arbitrary, discriminatory, or reflective of bad faith. Debeikes had already admitted
In light of the foregoing, the Court is unable to conclude that AFA had the "sole" power to invoke the CBA's grievance procedures or that it "wrongfully" refused to do so related to Debeikes' "predetermined termination."
It is somewhat unclear whether Plaintiff intends in the Amended Complaint to invoke any independent cause of action involving "constructive discharge" separate from his breach of CBA claim. The Amended Complaint itself indicates that this is not the case. Rather, Plaintiff claims he was injured "[a]s a result of Plaintiff's [constructive] discharge by Defendant employer, in violation of plaintiff's rights under the collective bargaining agreement." Am. Compl. ¶ 14, ECF No. 80. Put differently, Debeikes argues that Hawaiian Airlines breached the CBA's supposed "due process requirement of a fair hearing" when it "predetermined to Terminate" (i.e., constructively discharged) him.
For the sake of clarity, however, the Court concludes that if the Amended Complaint intended to suggest any independent claim premised on "constructive discharge," it would be preempted by Plaintiff's breach of CBA claim.
As the Court explained in its prior Order, a constructive discharge claim involving the parties' dispute over the CBA's terms and Hawaiian Airlines' obligations thereunder is preempted by Plaintiff's hybrid § 301/fair representation cause of action. Order at 27-28, ECF No. 75 (citing
The Ninth Circuit has explained that when the resolution of independent claims are "substantially dependent upon an interpretation of the terms of a labor contract, the claim must either be treated as a section 301 claim or dismissed as preempted."
Hawaiian Airlines argues that Plaintiff's "present claim of constructive discharge is equally dependent on the interpretation of the CBA as the prior one asserted in the original Complaint." Mem. in Support of Hawaiian Airlines' MTD/ MSJ at 19, ECF No. 85-1. The Court agrees. Here, Debeikes claims that "Plaintiff's [constructive] discharge by Defendant employer" is exactly what "violat[ed] [] plaintiff's rights under the collective bargaining agreement." Am. Compl. ¶ 14, ECF No. 80. The viability of Plaintiff's "constructive discharge" theory is thus entirely dependent on the scope of the CBA's alleged "due process requirement of a fair hearing" and whether Hawaiian Airlines violated it by "predetermining to terminate" Debeikes before his disciplinary hearing.
As the Court observed previously, if Plaintiff were arguing "constructive discharge" on grounds not involving the company's interpretation of its obligations under the CBA, it would "not necessarily" be preempted.
But where, as here, Plaintiff's "right not to be discharged," if any, "would depend upon the rights granted to [him] by the collective bargaining [agreement]," an independent claim related to constructive discharge is preempted.
As explained above, the Amended Complaint — in contrast to Plaintiff's original complaint — does not actually appear to suggest any theory of "constructive discharge" separate from Plaintiff's breach of CBA claim. Even if it intended to do so, any separate claim involving "constructive discharge" would be preempted by Debeikes' breach of CBA claim (which the Court has found it lacks jurisdiction to hear).
Nonetheless, as a further alternative basis for its ruling, the Court finds that Plaintiff's "constructive discharge" argument in the Amended Complaint lacks merit. As discussed above, Plaintiff suggests that he was "constructively discharged" without "just cause" as a result of Hawaiian Airlines' "predetermin[ation] to Terminate Plaintiff in violation of the CBA's due process requirement of a fair hearing." Am. Compl. ¶ 13, ECF No. 80. Even if such a requirement is implied by the CBA, and even if "predetermined termination" would violate it,
Here, there is no evidence that Debeikes was deceived regarding Hawaiian Airlines' position. At most, Plaintiff has complained that AFA was less than forthcoming regarding its grievance strategy related to CBA § 23.E.10.c. This does not mean that Hawaiian Airlines deceived him regarding any employment issues, including the likely results of its disciplinary hearing. The Amended Complaint simply argues that the company "constructively discharged Plaintiff without `just cause'" by "predetermin[ining] to [t]erminate" him without a fair hearing. Am. Compl. ¶ 13,
Meanwhile, to prove coercion, Plaintiff would need to show that the company imposed the terms of his resignation, that he had "no realistic alternative but to resign," and that his resignation was the product of the company's improper acts.
Plaintiff argues that "Hawaiian determining to terminate Plaintiff prior to any witness testifying or documents being presented was coercive within the meaning of
None of Plaintiff's cited cases, however, involved unionized employees with access to contractual grievance procedures as an alternative to resignation.
Additionally, a choice between resignation and termination "does not establish that the resignation was involuntary, unless the employer lacked good cause to believe that there were grounds for termination."
For the foregoing reasons, the Court concludes that Plaintiff's argument that he was "constructively discharged," even if it were not already preempted by his breach of CBA claim, lacks merit.
The second prong of Plaintiff's hybrid § 301/fair representation cause of action is his claim that AFA breached its DFR. As noted above, under
Plaintiff alleges that AFA breached its DFR in three ways.
Second, Plaintiff contends that AFA breached its DFR because it "failed to notify Plaintiff that Defendant Union had filed a MEC grievance involving Article 23.E.10.c," because he would have awaited the outcome of that grievance before deciding whether to retire.
The Court's prior conclusion is now "law of the case." It should govern the same issue in subsequent stages of litigation unless "clearly erroneous" and likely to "work a manifest injustice."
Third, Plaintiff argues that AFA breached its DFR by failing to "investigate and consider that Plaintiff was entitled to pursue [a grievance under] Article 23.C, entitled `NonDisciplinary Grievances[,]' regarding Hawaiian Airlines' provision of documents." Am. Compl. ¶¶ 7-10, ECF No. 80. Plaintiff claims that if such a grievance had been filed, he "would have been entitled to a speedy resolution of this issue within approximately 55 days."
In support of his argument, Plaintiff cites to
A breach of the DFR may be found where a union's act "extinguishes the employee's right to pursue his claim," such as where a union fails to meet a deadline to file a grievance and thereby "cut[s] off [Plaintiff's] resort to the mandatory grievance procedure, which was the only remedy for his discharge."
In this case, Plaintiff has not demonstrated that AFA acted in "reckless disregard" of his rights or "extinguished" his opportunity to grieve his complaint regarding Hawaiian Airlines' provision of investigation documents. To the contrary, it is undisputed that AFA did file a MEC class-based grievance regarding that dispute. Order at 14, ECF No. 75. The MEC grievance sought relief on behalf of all affected Hawaiian Airlines flight attendants, including Debeikes. Henton Decl. ¶ 5, ECF No. 95-1.
In addition, Trumble's declaration testimony is that, had Plaintiff gone through with his disciplinary hearing, AFA would have filed an individual LEC grievance on his behalf regarding the company's denial of documents and any discipline he was issued. Order at 15, ECF No. 75. Henton and Akau have also attested that AFA would have filed the grievance and taken it to arbitration, had Debeikes gone to the hearing and been disciplined. Henton Decl.
To the extent that Plaintiff would have preferred that Hawaiian Airlines' actions be challenged through a different form of grievance (an individual "Non-Disciplinary Grievance") prior to his retirement, he has not demonstrated that AFA's failure to do so was arbitrary, discriminatory, or in bad faith. Even where a plaintiff's grievance may have merit, a union does not breach its DFR where it "deliberated the alleged meritorious argument" and "can provide an explanation for its decision not to pursue" it.
Here, AFA considered the subject of Debeikes' proposed grievance and affirmatively pursued it through a MEC class-based grievance. The union has also articulated rational reasons for its strategy of pursuing the grievance on a class basis, rather than through individual grievances. Henton has attested that AFA chose to file a MEC grievance in order to attain relief for both Honolulu and Los Angeles-based flight attendants. Henton Decl. ¶¶ 5-10, ECF No. 95-1. His uncontroverted declaration testimony is that it is AFA's normal practice to file MEC grievances, rather than individual LEC grievances, "where a whole class of Flight Attendants are affected, both in Honolulu, and in Los Angeles," by a CBA dispute with Hawaiian Airlines.
Plaintiff's remaining argument appears to be that, had an individual grievance been filed on his behalf prior to his retirement, it would have "entitled [him] to a speedy resolution of this issue within approximately 55 days." Am. Compl. ¶ 11, ECF No. 80. Presumably, Debeikes lodges this complaint in an attempt to suggest that AFA's class-based grievance strategy was in bad faith, where it could have been resolved on an individual basis more quickly. A close reading of the CBA,
There are certain timing limitations applicable to "Non-Disciplinary Grievances" under the CBA:
First, a grievance must be filed within 60 days of when a flight attendant knew or reasonably would have known of the facts on which it is based.
Third, if the parties cannot resolve the dispute, Hawaiian Airlines shall, upon request, forward the grievance to the Vice President of Inflight Services or his designee, who must evaluate the appeal and furnish a written decision within fifteen days of the meeting.
Fourth, the grievant may appeal that decision to the SBA within thirty days. The CBA does not, however, appear to require the SBA to schedule a hearing on such appeal within any set number of days.
Fifth, once the appeal hearing is held, the SBA must render a decision within thirty days.
Based on the foregoing, the SBA apparently has unlimited discretion as to the scheduling of grievance hearings under the CBA. There is therefore no competent evidence that Debeikes would have been "entitled to a speedy resolution" of a "Non-Disciplinary Grievance" within any set number of days, much less 55. Moreover, Henton's declaration testimony is that Hawaiian Airlines and AFA routinely extend deadlines applicable to grievance and arbitration proceedings. Henton Decl. ¶¶ 19-21, ECF No. 95-1.
The Court finds that no genuine issues of material fact remain and accordingly GRANTS summary judgment in favor of Defendants as to whether AFA breached the DFR by failing to file a CBA § 23.C grievance on Plaintiff's individual behalf regarding Hawaiian Airlines' provision of investigation documents.
For the foregoing reasons, it is hereby ORDERED that summary judgment is granted as to:
Defendant Hawaiian Airlines, Inc.'s Motion to Dismiss, or in the Alternative, Grant Summary Judgment, ECF No. 85;
The Substantive Joinder of Association of Flight Attendants-CWA, AFL-CIO in Defendant Hawaiian Airlines, Inc.'s Motion
Defendant Association of Flight Attendants-CWA, AFL-CIO's Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 94; and
Defendant Hawaiian Airlines, Inc.'s Joinder to Defendant Association of Flight Attendants-CWA, AFL-CIO's Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. 94], ECF No. 99.
The Clerk of the Court is instructed to close the case.
IT IS SO ORDERED.
AFA filed a copy of the underlying grievance on September 9, 2015, ECF No. 135, and each party filed a supplemental brief on September 23, 2015, ECF Nos. 136, 137, 138. These documents and their impact on the instant Order are discussed below.
First, a grievance must be filed within 60 days of when a flight attendant knew or reasonably would have known of the facts on which it is based.
Second, the Director of Inflight Services or his designee must schedule a meeting within 10 days of receiving the grievance.
Third, if the parties cannot resolve the dispute, Hawaiian Airlines shall, upon request, forward the grievance to the Vice President of Inflight Services or his designee, who must evaluate the appeal and furnish a written decision within fifteen days of the meeting.
Fourth, the grievant may appeal that decision to the Hawaiian Airlines Flight Attendants System Board of Adjustment ("SBA") within thirty days. The CBA does not, however, appear to require the SBA to schedule a hearing on such appeal within any set number of days.
Fifth, once the appeal hearing is held, the SBA must render a decision within thirty days.
The Court therefore reads Henton's reference to the "whole class of Flight Attendants [] affected" as referring to AFA's full membership, insofar as all members potentially "could be adversely affected" by Hawaiian Airlines' narrow interpretation of the scope of its CBA obligations to union employees.
In any event, it is not disputed that Plaintiff "presented [Kim-Moe] with his signed letter of retirement" at the meeting. Kim-Moe Decl. ¶ 35, ECF No. 55-1. The letter, dated May 29, 2013, is in the record at ECF No. 55-9. It appears plainly to have been prepared by Plaintiff prior to the meeting. It is not a form document, does not use any letterhead, and contains four sentences of typed body text expressing Plaintiff's personal sentiments regarding his retirement.
For the reasons discussed herein, the Court finds that it is impossible to find that Plaintiff communicated his concerns regarding "predetermined termination" to Henton prior to his retirement. It therefore appears unnecessary to consider whether Plaintiff's declaration may be struck as a matter of sanctions. If AFA seeks any additional relief, it must file a separate motion.
Trumble has also attested that he told Plaintiff before the April 5, 2013 investigatory meeting that "we could review the documents and witness statements prior to his making any statements on the record, if he would just wait until HAL took disciplinary action against him, if at all." Trumble Decl. ¶ 10, ECF No. 72-1.
Oral argument is not evidence sufficient to defeat summary judgment.
Plaintiff has not moved for reconsideration of the Court's prior Order on this basis. Regardless, the Court would not consider its prior findings to be clearly erroneous (or erroneous at all, for that matter) or likely to work a manifest injustice in light of this new information. As explained in the Court's prior Order, AFA articulated a non-discriminatory, good-faith basis for its policy against disclosing class-based grievances to individual union members. Moreover, the Court's finding on that issue served only as an alternative basis (as here) for its summary judgment ruling, given that Plaintiff's breach of CBA claim against Hawaiian Airlines was not viable.
