Pisut v. United Transp. Union

140 F.Supp.3d 711

Christian Pisut, Plaintiff,

v.United Transportation Union, Defendant.

13 C 6858

United States District Court, N.D. Illinois, Eastern Division.

Signed September 29, 2015

Edward M. Fox, Jonathan R. Ksiazek, Ed Fox & Associates, Chicago, IL, for Plaintiff.

Erika A Diehl-Gibbons, Kevin C. Brodar, North Olmsted, OH, Robert Earl Harrington, III, Harrington, Thompson, Acker & Harrington, Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

Christian Pisut alleges that United Transportation Union ("UTU") breached its duty of fair representation under the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., by failing to challenge his termination by Illinois Central Railroad Company pursuant to the appeal procedures set forth in the governing collective bargaining agreement ("CBA"). Doc. 22. Early in the litigation, UTU moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds, Doc. 9, and the court denied the motion, Docs. 20–21 (reported at 2014 WL 714405 (N.D.Ill. Feb. 25, 2014) ). With discovery concluded and trial set for November 16, 2015, Doc. 74, UTU has moved for summary judgment, Doc. 58, and Pisut has moved for partial summary judgment as to liability, Doc. 60. Both motions are denied.

Background

When considering UTU's summary judgment motion, the facts are considered in the light most favorable to Pisut, and when considering Pisut's summary judgment motion, the facts are considered in the light most favorable to UTU. See First State Bank of Monticello v. Ohio Cas. Ins. Co., 555 F.3d 564, 567 (7th Cir.2009) ("[B]ecause the district court had cross-motions for summary judgment before it, we construe all facts and inferences therefrom in favor of the party against whom the motion under consideration is made.") (internal quotation marks omitted); see also McCleskey v. DLF Constr., Inc., 689 F.3d 677, 679 (7th Cir.2012). That said, because Pisut's summary judgment motion requires minimal discussion, the following places Pisut into the role of non-movant, stating the facts as favorably to him as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012) ; Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir.2010). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir.2012).

Before proceeding, the court notes that ¶¶ 7, 9, and 10 of UTU's Local Rule 56.1(b)(3)(B) response deny the corresponding paragraphs of Pisut's Local Rule 56.1(a)(3) statement without citing any record material to support the denials. Doc. 65–1 at ¶¶ 7, 9, 10. This violates Local Rule 56.1(b)(3)(B), which requires the non-movant to provide "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." N.D. Ill. L.R. 56.1(b)(3)(B). Accordingly, ¶¶ 7, 9, and 10 of Pisut's Local Rule 56.1(a)(3) statement are deemed admitted. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.2012) ; Parra v. Neal, 614 F.3d 635, 636 (7th Cir.2010) ; Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir.2009) ; FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 634 (7th Cir.2005) ; Smith v. Lamz, 321 F.3d 680, 682–83 (7th Cir.2003) ; Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994).

On April 14, 2010, while employed as a trainman by Illinois Central Railroad, Pisut was involved in an incident with two other crew members. Doc. 72 at ¶ 20. Pisut had several prior disciplinary incidents; in some, he was at fault, while in others, he accepted responsibility for his fellow employees' misconduct so they could avoid discipline. Id. at ¶¶ 12–19. On April 20, 2010, Illinois Central notified Pisut that it was investigating the April 14, 2010 incident and that Pisut could "arrange for representation as provided under the applicable provisions of the Collective Bargaining Agreement." Id. at ¶ 20.

At all relevant times, Pisut was a member of UTU, the union that served as his exclusive bargaining representative pursuant to a CBA between UTU and Illinois Central. Id. at ¶¶ 2–3, 8. Illinois Central did not copy UTU on its notice that it was investigating the April 2010 incident, and Pisut did not forward the notice to his UTU local chairperson, Dale DeKeyser. Id. at ¶ 20. (UTU has a three-level hierarchy: (1) International, the union's administrative head; (2) General Committees of Adjustment, which are mid-level bodies responsible for negotiating and policing the CBA; and (3) locals, where membership is held. Id. at ¶ 4.) Pisut instead contacted Bill Hardlannert, who recently had resigned as the local chairperson. Id. at ¶ 20. In May 2010, Hardlannert received DeKeyser's "blessing" to handle cases still outstanding from his time as local chairperson, ibid. which had ended in March 2010, id. at ¶ 7. Although Pisut's April 2010 incident occurred after Hardlannert's resignation, Pisut indicated that he felt more comfortable with Hardlannert as his representative. Id. at ¶ 21. In addition, Hardlannert was already representing Pisut in an Illinois Central investigation of an earlier incident. Ibid.

On July 20, 2010, Illinois Central conducted a formal investigation into the April 2010 incident. Id. at ¶ 23. Pisut participated in the investigation. Ibid. In early August 2010, Illinois Central notified Pisut that it was terminating him as a result of the incident. Id. at ¶¶ 24–25. Illinois Central copied Hardlannert but not DeKeyser on the correspondence. Id. at ¶ 25. Although Pisut's Local Rule 56.1(b)(3)(B) response to UTU's Local Rule 56(a)(3) statement does not indicate the precise date of the termination, ibid. he elsewhere places the date as August 3, 2010, Doc. 60–1 at 1.

Article 28, Section 1A of the CBA states that "[t]he United Transportation Union shall have the exclusive right to represent all Trainmen in company level grievance, claim and disciplinary proceedings on those Companies on which the UTU is the lawfully recognized or certified collective bargaining representative for that craft." Doc. 58–4 at 4. Article 28, Section 2 adds that "[a]ll claims or grievances must be presented in writing by the Trainman involved, or on behalf of the Trainman by his Local Chairperson, to the officer of the Company authorized to receive same within sixty (60) days from the date of occurrence on which the claim or grievance is based." Id. at 5. Pursuant to Article 29, "[n]o trainman shall be disciplined without a fair hearing (investigation) by an officer" of Illinois Central, and "[d]iscipline, if any, must be assessed within fifteen (15) days of [an] investigation." Id. at 6.

Article 29, Section D provides that "should any Trainman ... consider that he has been unjustly dealt with, he shall have the right of appeal as provided in Article 28." Ibid. The General Committee of Adjustment, which as noted above is the mid-level union body responsible for negotiating and policing the CBA, Doc. 72 at ¶ 4, handles such appeals on behalf of UTU members, id . at ¶ 10. Ordinarily, the local chairperson forwards the transcript of the Illinois Central investigation and any other relevant material to the General Committee of Adjustment chairperson. Ibid. The general chairperson must file an appeal with Illinois Central within 180 days from the assessment of discipline. Doc. 58–4 at 5; Doc. 72 at ¶ 10. Accordingly, given the August 3, 2010 termination date, to challenge Pisut's termination pursuant to the CBA, an appeal had to have been filed–and notice of UTU's intent to appeal had to have been given to Illinois Central–by January 30, 2011.

On or about the day that he was terminated, Pisut called Hardlannert to inform him of the termination. Doc. 72 at ¶ 25. Hardlannert told Pisut that he would appeal the termination. Ibid. Illinois Central contacted DeKeyser, asking where the transcripts and exhibits relating to Pisut's case should be sent. Id. at ¶ 26. DeKeyser then contacted Hardlannert, who indicated that the transcripts should be sent to him. Ibid. Illinois Central then sent all materials relating to Pisut's termination directly to Hardlannert. Ibid. DeKeyser informed Pisut that the next step would be to appeal the termination, but never told Pisut that he would file the appeal. Ibid. (Pisut's assertion that "DeKeyser may not have indicated that he directly would file the appeal," ibid. is not supported by any record citation and therefore is disregarded.)

Six days later, on August 9, 2010, Pisut filed a claim for benefits with the UTU Discipline Income Protection Program ("D/IPP"). Id. at ¶ 27. Hardlannert certified that Pisut was eligible for benefits, thereby "purportedly verifying that the case was under appeal." Ibid. DeKeyser wrote on the D/IPP forms that Pisut's case had been referred to the General Committee of Adjustment chairperson, Richard "Red" Dare, for handling, which was DeKeyser's understanding. Ibid. DeKeyser assumed that that Hardlannert had forwarded the required appeal materials to Dare, and DeKeyser did not know that an appeal had not been filed when he completed the D/IPP claim forms. Ibid. Pisut was paid $100 in D/IPP benefits per day for 250 days, the maximum allowed under the program. Ibid.

Fifteen months later, on or about December 10, 2011, Pisut called Dare to check the status of his appeal. Id. at ¶ 28. Dare told Pisut that he did not have any information regarding the appeal, and Pisut did not ask why Dare had no such information or confirm that Dare had received the appeal in the first place. Ibid. In 2011 and 2012, Pisut called Dare several times to check the status of the appeal and to ask for the date of the arbitration hearing, and on each call, Dare told Pisut that he did not have any information regarding the appeal. Id. at ¶ 30. In or around May 2013,...