WILEY Y. DANIEL, Chief Judge.
THIS MATTER is before the Court on Defendant's Motion for Summary Judgment (ECF No. 26), filed August 10, 2012. Defendant CF & I Steel, L.P., d/b/a Evraz Rocky Mountain Steel ("Evraz") seeks summary judgment on Plaintiff's hybrid claim brought under Section 301 of the
Plaintiff was employed at Evraz's plant under a Union collective bargaining agreement. Evraz provisionally discharged Plaintiff for allegedly violating the CBA drug policy by submitting an adulterated urine sample during a random drug test on December 7, 2010. That test produced invalid results. Plaintiff later tested positive for methamphetamine as part of a follow-up test administered on December 10, 2010. Evraz maintains that it terminated Plaintiff based entirely on its belief that Plaintiff submitted an adulterated sample for the December 7, 2010 test, rather than on his subsequent positive test results. (ECF No. 27 at 5 ¶ 19.)
The parties do not appear to dispute that under the CBA, submitting an adulterated specimen constitutes grounds for immediate provisional discharge, whereas employees who test positive shall be given a last chance agreement. Plaintiff denies submitting an adulterated sample and alleges that Evraz misconstrued his invalid drug test results as conclusive proof of adulteration and failed to properly investigate the results before taking disciplinary action. In turn, Plaintiff claims that he should have received a last chance agreement based on his December 10, 2010 drug test, the results of which he does not dispute.
On December 7, 2010, Plaintiff and several other employees were directed to proceed to Evraz's "guard headquarters" where they were to provide urine samples for random drug tests. (ECF No. 27 at 2-3 ¶ ¶ 8.) Plaintiff attests that he was not wearing a coat and that he turned out his pockets prior to giving his sample to show an on-looking guard that they were empty. (ECF No. 35 at 4 ¶ 44.) Plaintiff also attests that the sample he submitted was the proper temperature according to a temperature strip on the outside of the sample jar. (ECF No. 35 at 4 ¶ 45.)
An outside agency analyzed Plaintiff's specimen and deemed his test results invalid. (ECF No. 27 at 3 ¶ 11.) The comments on the test results stated, "Abnormal Physical & Chemical Characteristics which may include one or more of the following: no uric acid, no urine odor, abnormal appearance, or no foaming." (ECF No. 32, Exhibit 7.)
Plaintiff was subjected to a second drug test on December 10, 2010 that came back positive for methamphetamine. (ECF No. 27 at 4 ¶ 12, 5 ¶ 19.) Plaintiff admits to using methamphetamine and does not dispute the results from his second test. (ECF No. 1 at 2-3 ¶ 9; ECF No. 35, Exhibit 1 ¶¶ 7-9.) Immediately after Plaintiff submitted his specimen for the second test, he received written notice that he was being provisionally discharged for "[s]ubmitting an adulterated sample. Refusal to cooperate regarding the collection of the sample." (ECF No. 29, Exhibit 2.)
On December 23, 2010, the company notified Union President Mike Rodriguez via email that Plaintiff was being provisionally discharged. (ECF No. 27 at 5 ¶ 16.) Under
The next day, Plaintiff contacted Mr. Rodriguez to request a hearing. (ECF No. 27 at 5-6 ¶ 20.) Mr. Rodriguez prepared a grievance and was able to schedule a Step 3 grievance hearing despite Plaintiff's untimeliness. (ECF No. 27 at 6 ¶ 22.)
Three Union representatives appeared on Plaintiff's behalf at the Step 3 hearing, which took place on January 11, 2011. (ECF No. 27 at 6 ¶ 23.) During the hearing, Evraz's Human Resources Director, Bob Schwetje, asked Plaintiff if he had adulterated his sample for the December 7, 2010 drug test. (ECF No. 27 at 6 ¶ 23.) According to Plaintiff, Mr. Schwetje became hostile during his examination of Plaintiff. (ECF No. 35 at 2 ¶ 26.) Plaintiff claims that he initially denied adulterating the sample but eventually said "sure whatever" in an effort to appease Mr. Schwetje who, at that point, was pointing and yelling at him from across a table. (ECF No. 35 at 2 ¶ 26.)
Plaintiff's positive drug test was also discussed at the Step 3 hearing. (ECF No. 27 at 7 ¶ 25.) Plaintiff testified that he did not know traces of his drug use were still in his system at the time of the December 7, 2010 test and that he had not used drugs since the December 10, 2010 test was administered. (ECF No. 27 at 7 ¶ 25.) In addition, a Union representative argued that addictions were a sickness and, accordingly, that Plaintiff should be given a second chance. (ECF No. 27 at 7 ¶ 25.)
Despite the Union's efforts, the grievance committee denied Plaintiff's grievance following the Step 3 hearing. (ECF No. 27 at 7 ¶ 27.) The Union appealed, and a Step 4 hearing ultimately took place in late May 2011. (ECF. No. 27 at 7 ¶ 27.)
Plaintiff alleges that in the interim Union representatives would not correspond with him regarding his grievance. (ECF No. 35 at 2 ¶ 55.) Plaintiff sent repeated emails in March 2011 to Mr. Rodriguez and Doug Fennel, a Union representative assigned to Plaintiff's case, in which he requested status updates on his grievance and argued the merits of his case. (ECF No. 30, Exhibit 4, 5.) Plaintiff alleged that he had been treated differently than another Union employee who had also received invalid results from a random drug test, but who allegedly had gone unpunished after passing a follow-up test. (ECF No. 30, Exhibit 4, 5.) Plaintiff alleged that had he received the same treatment, his invalid results would have not been counted against him and that, instead, he would have received a last chance agreement based on his positive results from the December 10, 2010 test. (ECF No. 30, Exhibit 4, 5.) Plaintiff now alleges that the other employee's name is Ryan Ehrlich but has not produced evidence supporting his allegations about Mr. Ehrlich. (ECF No. 35 at 7-8 ¶¶ 59, 60.)
Mr. Fennell responded to Plaintiff's emails on March 29, 2011 instructing Plaintiff to "quite [sic] calling everyone[;] as I told you[,] I'm working on your case." (ECF No. 30, Exhibit 6.) In early May 2011, Plaintiff sent an email to another Union representative titled "failure to fairly represent fired without just cause," in
Beginning on May 21, 2011, Mr. Fennel sent several emails to Plaintiff notifying him that his Step 4 hearing was scheduled for the week of May 31, 2011 and instructing him to send any information that might be relevant to his grievance. (ECF No. 31, Exhibit 2, 3, 5.) Even though Plaintiff was not permitted to attend the hearing, which was limited to Union and management officials, Mr. Fennel and Mr. Rodriguez met with Plaintiff the morning of the hearing. (ECF No. 28, Exhibit 1, at 20, 96:12-99:9; ECF No. 33 at 13.) Plaintiff has testified that at the pre-hearing meeting, he "argued [his] case with [Mr. Fennel and Mr. Rodriguez] and showed them everything that [he] thought was relevant." (ECF No. 28, Exhibit 1, at 20, 97:7-9.)
Four Union representatives, including Mr. Fennel and Mr. Rodriguez, appeared on Plaintiff's behalf at the Step 4 hearing. (ECF No. 27 at 9 ¶ 34.) Mr. Fennel argued that Plaintiff's December 7, 2010 test results did not list any chemical agents that adulterated the specimen. (ECF No. 27 at 9 ¶ 34.) Mr. Fennel also argued that invalid test results do not imply that the test subject submitted an adulterated specimen. (ECF No. 27 at 9 ¶ 34.)
In response, Evraz's Manager of Labor Relations, Nikki Hansen, argued that the possible physical and chemical characteristics listed on Plaintiff's December 7, 2010 test results suggested that the specimen Plaintiff submitted was not human urine. (ECF No. 27 at 9 ¶ 34.) Ms. Hansen explained that absence of uric acid or urine odor, abnormal appearance, and lack of foaming were all factors believed to suggest that the specimen was not human urine. (ECF No. 27 at 9 ¶ 34.) In addition, Mr. Shwetje also argued that Plaintiff had admitted at the Step 3 hearing to adulterating his December 7, 2010 sample. (ECF No. 27 at 9 ¶ 34.)
Following the Step 4 hearing, Ms. Hansen notified the Union that the Company had affirmed its prior decision to deny Plaintiff's grievance. (ECF No. 27 at 9 ¶ 35.) Over the coming month, Plaintiff sent several emails urging Mr. Fennel to pursue arbitration. (ECF No. 32, Exhibit 2, 3.) In these emails, Plaintiff notified Mr. Fennel that Mr. Rodriguez had said that the Union would pursue arbitration. (ECF No. 32, Exhibit 2, 3.) However, Mr. Fennel responded that he was responsible for making that decision and that he had not yet made up his mind. (ECF No. 32, Exhibit 2.) Plaintiff now claims that he told union officials that he would pay for the arbitration process himself. (ECF No. 35, Exhibit 1 at 4 ¶ 17.)
After Mr. Fennel again met with the Company to discuss Plaintiff's grievance in July 2011, the Union withdrew Plaintiff's grievance without consulting Plaintiff further. (ECF No. 35, Exhibit 1 at 4 ¶ 17.) This lawsuit followed.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the ... moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000). When applying
The moving party holds the initial burden of establishing an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998). The moving party need not negate a non-moving party's claim; rather, the moving party need only show a lack of evidence supporting a crucial element of a non-moving party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986)).
Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to establish that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). To satisfy this burden, the non-moving party may not rely solely on the pleadings. Id. Rather, the non-moving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671.
Defendant argues that Plaintiff's claim should be summarily dismissed because he has failed to establish that the Union breached its duty of fair representation in pursuing his grievance and, in any event, has failed to prove that Evraz breached the CBA. I find that Plaintiff has failed to present sufficient evidence to satisfy the breach element of his claim and, accordingly, grant Evraz's Motion for Summary Judgment.
Pursuant to federal policy favoring private adjudication of labor disputes, courts ordinarily will not disturb the finality of a decision that is reached pursuant to procedures provided by a labor contract as to a union employee's grievance. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). However, there is an exception to this finality rule where the union representing the employee breaches its duty of fair representation. Id. at 164, 103 S.Ct. 2281. Under those circumstances, the employee may bring a hybrid claim under section 301 of the LMRA against both the employer and the union notwithstanding the outcome of the grievance process. Id.
In order to preserve the deference owed to the grievance process, it is not sufficient for a plaintiff bringing a hybrid § 301/fair representation claim to prove that the underlying grievance was meritorious. See General Drivers, Warehousemen & Helpers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 519, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963). Rather, a hybrid claim necessarily entails two separate causes of action and requires a grieved employee to prove: "(1) Some conduct by the worker's union that breached the duty of fair representation; (2) A causal connection showing that the union's breach affected the integrity of the arbitration process, and; (3) A violation of the collective bargaining agreement by the company." Webb v. ABF Freight System, Inc., 155 F.3d 1230, 1239 (10th Cir.1998). A plaintiff must show that the union breached its duty of fair representation even if it chooses not to sue the union but rather only the
Plaintiff's central claim is that the Union breached its duty of fair representation in arbitrarily refusing to arbitrate his grievance. Plaintiff also claims that the Union processed his claim in a perfunctory fashion.
"Any substantive examination of a union's performance `must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.'" Lampkin v. Local No. 1093, UAW, 154 F.3d 1136, 1144 (10th Cir.1998) (quoting Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 1135, 113 L.Ed.2d 51 (1991)). Under this standard, union employees do not have the absolute right to have their grievances taken to arbitration. Vaca v. Sipes, 386 U.S. 171, 191-92, 87 S.Ct. 903, 917-18, 17 L.Ed.2d 842 (1967); Chernak v. Southwest Airlines Co., 778 F.2d 578, 581 (10th Cir.1985). A union will be held to have breached its duty of fair representation only where it engages in "arbitrary, discriminatory, bad faith, or perfunctory conduct" towards one of its members. Webb, 155 F.3d at 1239.
A union's conduct is not arbitrary unless it is "so far outside [the] `wide range of reasonableness' [accorded union representatives] as to be irrational." Young v. UAW-LETC, 95 F.3d 992, 998 (10th Cir.1996) (quoting O'Neill, 499 U.S. at 67, 111 S.Ct. 1127). It is not sufficient for a plaintiff to show that the union committed "mere negligent conduct; carelessness or honest mistakes" as these are not sufficient to impose liability on a union. Webb, 155 F.3d at 1240. Rather, a plaintiff must show that the union "arbitrarily ignor[ed] a meritorious grievance or process[ed] it in perfunctory fashion."
Plaintiff argues that his grievance would have likely succeeded at arbitration and that since he offered to pay the costs thereof, the Union's refusal to arbitrate was arbitrary. However, Plaintiff cannot succeed on his hybrid claim simply by proving that his grievance was meritorious. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976) ("[Plaintiffs] are not entitled to relitigate their discharge merely because they offer newly discovered evidence that the charges against them were false and that in fact they were fired without cause. The grievance processes cannot be expected to be error-free."). The Union is owed great deference in its processing of an employee's grievance, and Plaintiff was not entitled to obfuscate the Union's authority and compel arbitration by offering to pay the costs associated therewith. Instead, to show that the Union's refusal to arbitrate was arbitrary, Plaintiff must show that his claim was so
Plaintiff has not satisfied his burden under this standard. Plaintiff argues that his grievance would have likely succeeded at arbitration based on: (1) Evraz's allegedly disparate treatment of Mr. Ehrlich, the employee who allegedly received invalid test results but who was allowed to continue working after a follow-up test was negative; (2) Evraz's failure to investigate Plaintiff's invalid test results; and (3) Evraz's inability to prove that Plaintiff committed misconduct based solely on his December 7, 2010 test results.
Regarding Plaintiff's first contention, it is questionable whether Plaintiff's unsupported affidavit testimony regarding Mr. Ehrlich's should be considered at this stage of the proceedings. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) ("To survive summary judgment, non-movant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient."). Notwithstanding this evidentiary issue, Plaintiff's allegations regarding Mr. Ehrlich are not sufficient to raise a genuine issue of material fact because there are at least three crucial distinctions between Plaintiff's and Mr. Ehrlich's experiences. First, Plaintiff had a motive for submitting an adulterated sample based on his admitted drug use only three days prior to his December 7, 2010 test.
Second, the results from Plaintiff's December 7, 2010 test stated that Plaintiff's specimen had "Abnormal Physical & Chemical Characteristics," which supports an inference of adulteration. In contrast, there is no evidence in the record as to what caused Mr. Ehrlich's initial test to produce invalid results. Thus, based on the evidence, one can only speculate as to whether Mr. Ehrlich's specimen possessed abnormalities similar to Plaintiff's or whether Mr. Ehrlich's invalid test was the result of less suspicious causes, such as some technical error in testing or handling his specimen.
Finally, at the Step 3 hearing, Plaintiff admitted, albeit equivocally, to adulterating his December 7, 2011 sample. Though Plaintiff now denies adulterating his sample and alleges that his admission was merely an attempt to appease a hostile Mr. Schwetje, these allegations do not completely negate the significance of his admission. The Union could have rationally concluded that an arbitrator would have found that Plaintiff's admission was valid or, alternatively, that Plaintiff's wavering testimony undermined his credibility. Based on the distinctions between Plaintiff's and Mr. Ehrlich's experiences, Plaintiff's allegations regarding Mr. Ehrlich are not sufficient to state a genuine issue of material fact.
For similar reasons, I find unavailing Plaintiff's remaining arguments regarding Evraz's failure to investigate his invalid test result and its inability to prove misconduct. Again, Plaintiff not only used drugs three days before his December 7, 2010 test, he admitted, albeit equivocally, to adulterating his sample for that test. These facts suggest that there was no need to further investigate the results of Plaintiff's December 7, 2010 test.
In addition to his claim that the Union arbitrarily refused to arbitrate his grievance, Plaintiff contends that the Union processed his grievance in a perfunctory fashion. In his Response to Motion for Summary Judgment, Plaintiff raises only two allegations that are relevant to this issue. First, Plaintiff alleges that Union representatives failed to object to Mr. Schwetje's hostile questioning at the Step 3 hearing. (ECF No. 35 at 2-3 ¶ 26, 53.) Second, Plaintiff alleges that Union representatives failed to communicate with him regarding his grievance until after the step 4 hearing. (ECF No. 35 at 6 ¶ 55.)
Plaintiff cites no analogous cases in which a union's conduct was held to be perfunctory. Rather, Plaintiff relies entirely on the readily distinguishable case of Webb as the only legal authority supporting his claim of perfunctory union conduct. In Webb, a terminated union employee filed a hybrid claim against his employer and union after his grievance was denied. 155 F.3d at 1236-37. The district court entered judgment for the defendants notwithstanding the jury verdict for the employee after the employee presented evidence that his union representative, inter alia, failed to present a viable retaliation claim on his behalf, failed to review the employer's evidence prior to hearing, and misled the employee by instructing him not to appear at an out of state hearing only to later tell the committee that the employee had independently chosen not to attend. Id. at 1240-41. The Tenth Circuit reversed the district court, holding that the employee's evidence was sufficient to allow a jury to find that the union processed the grievance "in such a perfunctory, apathetic, indifferent, and cursory way that [it] breached its duty of fair representation." Id. at 1240.
In contrast, here, the record conclusively shows that the Union gave Plaintiff's grievance more than just cursory attention. At the outset, it is important to note that the Union obtained a hearing reviewing Plaintiff's termination despite Plaintiff's failure to timely file a grievance. Thus, while Plaintiff complains of the Union's refusal to arbitrate and its lack of responsiveness to his correspondence following the Step 3 hearing, Plaintiff's grievance would not have been reviewed at all were it not for the Union's special efforts. The Union not only conducted a Step 3 hearing on Plaintiff's behalf, but appealed to Step 4. Several Union representatives appeared on Plaintiff's behalf at both hearings, presenting multiple arguments in favor of Plaintiff's grievance.
In citing Webb, Plaintiff has not presented evidence that the Union was unprepared at his grievance hearings or that it failed to present entire claims on his behalf. Rather, Plaintiff alleges only that union representatives ignored his correspondence and that they failed to object to Mr. Schwetje's hostile questioning at the Step 3 hearing.
Likewise, Plaintiff's contention regarding the Union's failure to object at the Step 3 hearing is not sufficient to sustain Plaintiff's claim. Failure to present a particular legal argument is not sufficient to create an issue of material fact as to whether a union breached its duty of fair representation. Young, 95 F.3d at 998. Similarly, the Union's failure to object to Mr. Schwetje's questioning is not, by itself, sufficient to render the Union's conduct perfunctory.
Thus, Plaintiff has failed to present sufficient evidence that the Union breached its duty of fair representation in processing his grievance, and thus, Plaintiff's hybrid claim cannot be sustained as a matter of law. Having disposed of Plaintiff's claim on this issue, it is unnecessary to address whether Plaintiff has presented sufficient evidence to satisfy the remaining elements of his claim.
Based on the foregoing, it is
ORDERED that Defendant's Motion for Summary Judgment (ECF No. 26) is
