Stiles v. Chemical & Production Workers' Union

658 F.Supp.2d 310

2009 DNH 141

Rosanne STILES v. CHEMICAL & PRODUCTION WORKERS' UNION, LOCAL NO. 30, AFL-CIO.

Civil No. 08-cv-208-JM.

United States District Court, D. New Hampshire.

September 24, 2009.

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Scott F. Gleason, Thomas J. Gleason, Gleason Law Offices, PC, Haverhill, MA, for Plaintiff.

Paul McEachern, Shaines & McEachern PA, Portsmouth, NH, for Defendant.

ORDER

JAMES R. MUIRHEAD, United States Magistrate Judge.

Plaintiff Rosanne Stiles' amended complaint sets forth two causes of action: (1) Count I, based on 29 U.S.C. § 185, alleges "a breach of the terms of the applicable collective bargaining agreement as it relates to the representation of the plaintiff by the defendant" (¶ 15); and (2) Count II, also based on 29 U.S.C. § 185, asserts "a breach of the defendant's duty to fairly represent the plaintiff as it relates to the disciplinary action taken against her by the defendant" (¶ 19). Both counts claim: (a) a failure to properly investigate; (b) a failure to properly prepare; (c) a failure to communicate; and (d) a failure to pursue the grievance and to settle over plaintiff's objection. Defendant Chemical & Production Workers' Union, Local No. 30 has moved for summary judgment (document no. 11) claiming there is no genuine dispute of material fact that it did not breach any duty owed to plaintiff in either the collective bargaining agreement or the grievance arbitration proceedings and, therefore, it is entitled to summary judgment on both counts. Plaintiff objects (document no. 12). For the reasons set forth below, defendant's motion is granted.

Discussion

1. Background¹

Plaintiff worked for over 22 years as a waitress for Volume Services of America, Inc., d/b/a Centerplate ("Centerplate"). Centerplate provided food and beverage services to Rockingham Ventures at its track facility known as Rockingham Park. Through Centerplate, plaintiff worked at Rockingham Park.

On January 6, 2007, plaintiff was suspended from work following an altercation she had with her manager. Plaintiff was upset because another waitress had apparently left her assigned shift location early to go work in Rockingham Park's poker room, which was against company policy. When plaintiff's shift ended that day, she went into the poker room to tell the manager what she had observed. In front of customers, plaintiff "protested" this reassignment and told her manager she was going to report it to "corporate." A disagreement ensued, ending with the manager following plaintiff out of the room and warning her that she would be "written up." Plaintiff was suspended from work while the incident was investigated.

On January 9, 2007, defendant's business agent, John McDonough ("McDonough"), met with plaintiff, who had filed a grievance about her suspension. Plaintiff explained to McDonough the company rule that waitresses were not allowed to leave a shift early and go into the poker room, and admitted she yelled at her manager that she would report the January 6 shift change to corporate, which prompted him to chase her across the poker room. Plaintiff, McDonough and another union representative then met with Centerplate officials to discuss plaintiff's grievance. Centerplate informed plaintiff and the union representatives that it had statements from witnesses to the incident that reported plaintiff had used profanity. They also told the union representative that Centerplate had an established grievance procedure plaintiff should have followed. Although McDonough urged Centerplate to reinstate plaintiff, Centerplate decided to terminate her. As a result, plaintiff's grievance was amended to include the termination and seek arbitration.

On January 25, 2007, Centerplate provided McDonough with copies of the statements about plaintiff's behavior on January 6. The statements were from a manager, three employees and a customer. McDonough began to investigate plaintiff's work history and learned she had been outspoken and temperamental with management and other employees several times previously. Many of those outbursts had been tolerated, but plaintiff had received disciplinary write-ups on at least five previous occasions between 1986 and 2000. In December 2004, plaintiff had been banned by Rockingham for one week because of her inappropriate conduct toward other track employees. Significantly, in January 2005 Centerplate had provided plaintiff with "a final written warning and notice that if she engaged in any verbally abusive behavior towards management or other employees in the future, she would be terminated." Def.'s Mem. at 3.

Following this investigation, defendant union's attorney, John Ward, concluded that arbitration should be demanded, thinking that an arbitrator might reinstate plaintiff because of her many years of service despite the strong evidence that the altercation occurred as reported. Ward and Centerplate agreed on an arbitrator and set a hearing date for September 20, 2007. On July 19, 2007, Ward sent a document request to Centerplate seeking numerous documents relevant to plaintiff's grievance. He also wrote a letter to plaintiff's attorney, Scott Gleason, advising him of the September 20 hearing date and informing him of a planned August meeting with plaintiff.

To prepare for the hearing, McDonough agreed to travel to New Hampshire in August 2007 to meet with plaintiff and any witnesses she might have. McDonough left several voice messages with plaintiff asking her to call him on his cell phone to arrange to meet on August 8 and 9. Instead of calling his cell phone, plaintiff called McDonough's office on August 9, when he was already in New Hampshire, instructing him to arrange through Gleason the meeting with her. Because McDonough and plaintiff never met, defendant requested the September 20 hearing be postponed to give them additional time to prepare. After notifying plaintiff of her need to cooperate, Ward and McDonough arranged for another meeting with her on September 20 to review evidence, including both documents and witnesses. Plaintiff did meet with Ward and McDonough as planned, but failed to provide any potential witnesses that day or to identify any documents for the hearing. Plaintiff told Ward and McDonough that she suspected Rockingham would not let her return to its property, but got upset when asked why she thought that. Plaintiff told Ward that it was his job to get her back to work and that Gleason would handle matters with Rockingham.

Defendant worked with Centerplate to exchange information in preparation for the arbitration hearing, now scheduled for October 15. Ward reminded plaintiff by letter dated October 3 that she needed to provide him with witness information and any documents she thought were relevant to her case. Finally on Friday afternoon, October 12, with the hearing scheduled to begin Monday, October 15, plaintiff provided Ward with the names of 5 witnesses. Ward met with those witnesses Monday morning before the hearing began. Ward never received the requested information regarding plaintiff's interim wages, however, so Ward sought and obtained Centerplate's agreement to bifurcate the arbitration hearing to address the termination first and the back-pay issue subsequently. After a full day of hearing, the arbitration was continued to December 18, 2007.

On October 17, Centerplate expressed an interest in settling the grievance, which Ward communicated to plaintiff. Although plaintiff was not receptive to the idea initially, she eventually agreed to consider a settlement that included a waiver of her demand for reinstatement. She advised Ward that she would discuss that proposal further with Gleason and get back to Ward with her demand. She also promised she would provide Ward with the documents needed to calculate her lost wages.

On November 19, Centerplate confirmed plaintiff's earlier suspicion that Rockingham would not allow her to return to its property even if she succeeded in her arbitration. With this news defendant reassessed its strategy, because it had assumed plaintiff was more likely to get reinstatement than back-pay and now it was apparent reinstatement was not a viable remedy. That same day Centerplate offered to settle the grievance for $2,500. Ward called plaintiff to advise her of Rockingham's decision and relay Centerplate's settlement offer. Plaintiff was upset by the offer and expressed as much to Ward. Ward asked plaintiff to provide him with the documents needed to calculate her lost wages and to respond to Centerplate's settlement by November 30. Plaintiff did not comply with either request.

Defendant then estimated plaintiff's earnings would have been $22,000, that her interim earnings were approximately $11,000 since her termination and offered to accept a figure of $11,000 in settlement of plaintiff's claim. Centerplate countered with a $5,000 offer on December 12, 2007. Defendant rejected that offer, but proposed a non-wage settlement of $15,000, along with neutral recommendations and a mutual release, because defendant thought its proposal was fair, informed Centerplate it would accept the settlement even without plaintiff's approval.

The parties negotiated the terms back and forth before finally agreeing on December 14 to a settlement for $10,000 payment to plaintiff for back-pay and other injuries in exchange for, among other things, mutual releases. Ward advised Gleason of the settlement agreement. On December 17, Gleason informed Ward that plaintiff rejected the settlement, but defendant decided to accept it over plaintiff's objections.

On January 24, 2008, Ward sent Gleason a detailed letter explaining the settlement terms and the many reasons why defendant had agreed to accept it. Ward emphasized that Rockingham's decision to ban plaintiff from returning to work on its property was critical to the settlement decision, because plaintiff's disciplinary history made an award...