Thomas v. Siemens VDO Automotive Corp. , 142 F. App'x 743 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1649
DARLENE M. THOMAS,
Plaintiff - Appellant,
versus
SIEMENS VDO AUTOMOTIVE CORPORATION;
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, Lodge No. 2461 of District
Lodge 74, AFL-CIO,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CA-03-680-3)
Argued: May 26, 2005 Decided: August 9, 2005
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: David Raymond Simonsen, Jr., Richmond, Virginia, for
Appellant. Dana Lewis Rust, MCGUIREWOODS, L.L.P., Richmond,
Virginia; James J. Vergara, Jr., VERGARA & ASSOCIATES, Hopewell,
Virginia, for Appellees. ON BRIEF: Michele L. Settle, Jennifer M.
Campbell, MCGUIREWOODS, L.L.P., Richmond, Virginia, for Appellee
Siemens VDO Automotive Corporation.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Darlene Thomas (Thomas) filed this hybrid action under § 301
of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185,
against Siemens VDO Automotive Corp (Siemens) and the International
Association of Machinists and Aerospace Workers, Lodge No. 2461 of
District Lodge 74, AFL-CIO (the Union). Thomas claims that Siemens
discharged her from employment without just cause in violation of
the applicable collective bargaining agreement. She also claims
that the Union breached its duty to her of fair representation by
not challenging her discharge through arbitration. After full
discovery, the district court granted summary judgment in favor of
Siemens and the Union. Thomas timely appealed. We affirm.
I.
A. Background.
Siemens manufactures fuel injectors and fuel assemblies for
automotive manufacturers and suppliers at its plant in Newport
News, Virginia. The Union has represented the hourly production
and maintenance workers at Siemens’ Newport News plant since 1971.
At all times relevant to this case, Siemens and the Union were
parties to a collective bargaining agreement (the CBA), with the
Union maintaining an office on-site at Siemens’ Newport News plant.
Under the “Management Rights” clause of the CBA, Siemens has the
right to discharge Union employees “for proper and just cause.”
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(J.A. 65). If Siemens suspends or discharges an employee, the
Union, pursuant to the CBA, may file a grievance on the employee’s
behalf.
The CBA sets forth a three-step grievance procedure that,
after the third step, may culminate in final and binding
arbitration. The CBA, however, does not require arbitration in
every case; rather, the Union has exclusive control over which
employee grievances will be prosecuted through arbitration. An
individual employee has no right or ability to arbitrate a
grievance without the approval and support of the Union.
On April 15, 2003, Siemens discharged Thomas for violating its
strict policy against violence in the workplace on March 28, 2003.
Such policy provides that “[v]iolence, threats of violence,
. . . intimidation, aggressive or other disruptive behavior will
not be tolerated within SVAC.” (J.A. 123). It states further
that:
Reports of all violent or threatening behavior will be
taken seriously and dealt with appropriately. . . . If
an investigation concludes that an employee has committed
violent or threatening behavior, SVAC will take prompt,
appropriate actions, including disciplinary action that
could include termination.
Id. Thomas admits that she was required to comply with Siemens’
strict policy against violence in the workplace.
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B. Details of Events Leading To Thomas’ Discharge.
On Friday, March 28, 2003, Thomas arrived for work at
approximately 6:45 a.m. After clocking-in, Thomas learned that
several of her Union co-workers, including Nancy Vance, Linwood
Sykes, and Charlotte Williamson, were distributing a notice to
night-shift employees who had just finished their shifts, which
notice announced that a petition, requesting a revote on a
previously defeated proposal to make the Newport News plant a
continuous shift operation, had been signed by sixty-five percent
of Union members at the plant.1 Maggie Taylor, Thomas’ friend of
eighteen years and fellow Union co-worker, then showed Thomas a
copy of the notice. Maggie Taylor, like Thomas, opposed a revote
on the Continuous Shift MOA.
Upset that Union members were distributing Union materials
during work time in apparent violation of the CBA, at approximately
7:00 a.m., Thomas, Maggie Taylor, and Helen Blain, another employee
opposed to a revote on the Continuous Shift MOA, collectively
proceeded to and entered the Union’s on-site office in order to
complain to a Union representative. Two other employees, Lillian
Cooter and Marion Williams, and Union President Byron Carter (Union
1
On March 20, 2003, Union members at Siemens’ Newport News
plant had voted on a proposed memorandum of agreement between the
Union and Siemens to modify the CBA in order to make the Newport
News plant a continuous shift operation (the Continuous Shift MOA).
The Union rejected the Continuous Shift MOA by a close vote of 161
to 155. Thomas had voted to reject the Continuous Shift MOA and
was opposed to a revote.
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President Carter), were already present in the Union’s on-site
office when Thomas and the others arrived. Notably, Lillian Cooter
did not know Thomas, Maggie Taylor, or Helen Blain.
Once in the Union’s on-site office, Thomas stood near its
half-glass door, facing Union President Carter’s desk. In the
meantime, employees Nancy Vance, Charlotte Williamson, and Linwood
Sykes proceeded to the Union’s on-site office to return extra
copies of the notice.
What happened next is the subject of some dispute. According
to Nancy Vance, she opened the office door a few inches and asked
Union President Carter if he was busy. Believing that he signaled
her to enter, Nancy Vance opened the door ten more inches. Then,
testified Nancy Vance in deposition, Thomas “poked her head around
the door and saw me standing there [and] took her body and shoved
[the door] against me.” (J.A. 480). Nancy Vance further testified
that Thomas threw her shoulder into the door violently in an
attempt to prevent her from entering the office. She further
testified:
At that point a contact had hit me in the elbow and
just shot the pain through my arm. I slid back. My foot
got trapped in the door. And [Thomas] continuously tried
to shove me out of the way, out of the room, which I
really never got a chance to go into until my foot popped
loose and I actually went back into Charlotte
[Williamson].
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Id. In various depositions and interviews, Lillian Cooter, Linwood
Sykes, Charlotte Williamson, and Union President Carter
corroborated Nancy Vance’s version of events.
Not surprisingly, Thomas disputes Nancy Vance’s version of the
incident. Thomas claims that Nancy Vance aggressively opened the
door into her, causing her pain. Thomas admits that she
immediately responded by pushing the door shut with her arm and
hip, but denies that she did so violently or with the intent to
hurt Nancy Vance.
In an April 3, 2003 letter to Mike Lindsey, Siemens’ human
resource specialist (HRS Lindsey), Maggie Taylor generally
corroborated Thomas’ version of events. Helen Blain did the same
in an undated letter to Mike Lindsey.
Immediately after the incident, Nancy Vance complained about
Thomas’ behavior to a Siemens supervisor and HRS Lindsey. Nancy
Vance also promptly reported her injury to the plant nurse and
filed criminal assault and battery charges against Thomas. In
addition, Nancy Vance, who also belonged to the Union, filed a
grievance against Siemens under the CBA, alleging that Siemens had
failed to provide her with a violence-free workplace by permitting
Thomas to assault her in the plant.
In contrast, Thomas did not make a complaint to Siemens’ Human
Resources Department about the door incident, nor did she seek
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treatment from the plant nurse or file criminal charges. Rather,
Thomas left the plant because she said she had a headache.
HRS Lindsey immediately began investigating Nancy Vance’s
complaint. He interviewed available witnesses, including Union
President Carter and Linwood Sykes. Union President Carter
confirmed that Thomas had forcefully tried to slam the door shut on
Nancy Vance, striking her and “throwing her body weight against the
door, maybe four or five times.” (J.A. 135). Linwood Sykes also
reported that Thomas had slammed the door into Nancy Vance,
striking her on the arm and catching her foot in the door. HRS
Lindsey attempted to interview Thomas, but learned that she had
already left the plant.
After interviewing the witnesses present in the plant, HRS
Lindsey preliminarily concluded that Thomas was the aggressor in
the door incident and that she had repeatedly, forcefully, and
intentionally slammed the Union’s on-site office door into Nancy
Vance. Accordingly, HRS Lindsey suspended Thomas pending the
completion of his investigation. On Sunday, March 30, 2003, HRS
Lindsey contacted Thomas at home and notified her that she was
suspended pending completion of his investigation.
Homer Tipton, the Assistant Directing Business Representative
for the Union, immediately filed a grievance on Thomas’ behalf
challenging her suspension. The grievance requested that Thomas be
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reinstated and made whole. Thomas admits that Homer Tipton
properly filed this grievance on her behalf.
HRS Lindsey continued his investigation by interviewing Thomas
on Wednesday, April 2, 2003. Union Steward Marion Williams and
Union Vice President Bernard Banks (Union Vice President Banks)
represented Thomas during the interview. Thomas admitted pushing
the office door shut with her arm and hip, but denied hitting Nancy
Vance with the door.
HRS Lindsey also met with and obtained statements from Lillian
Cooter and Charlotte Williamson. Helen Blain and Maggie Taylor
provided HRS Lindsey with statements indicating that the office
door made contact with Thomas and that Thomas then pushed the door
closed.
After completing the investigation, HRS Lindsey concluded that
the weight of the evidence established that Thomas had exhibited
violent, threatening, and intimidating behavior that could have
resulted in serious injury to Nancy Vance. Accordingly, HRS
Lindsey recommended to Siemens’ Human Resources Director Russ
Sewell (HRD Sewell) that Thomas be discharged.
HRD Sewell agreed and, on April 15, 2003, Thomas’ suspension
was converted to a discharge. In reaching this decision, HRD
Sewell relied primarily on the testimony of Union President Carter,
who had the best view of what occurred. Union President Carter
believed that Thomas had intentionally tried to harm Nancy Vance
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because, according to him, Thomas repeatedly slammed the door on
Nancy Vance. HRD Sewell also relied on the testimony of Lillian
Cooter, who HRD Sewell believed was particularly reliable because
she did not know the parties in the altercation and had no cause
for bias.
When Homer Tipton learned that Thomas had been discharged, he
immediately converted the Union’s grievance of Thomas’ suspension
to cover her discharge. Homer Tipton then began an independent
Union investigation, obtaining statements and interviewing
witnesses. Homer Tipton interviewed Thomas, Lillian Cooter, Union
President Carter, Helen Blain, Marion Williams, Charlotte
Williamson, and Maggie Taylor.
According to Homer Tipton, in two separate interviews, Maggie
Taylor told him that she yelled to Thomas “No Darlene,” (J.A. 180),
and “‘stop,’” (J.A. 442), because she was concerned about Thomas
trying to hurt Nancy Vance.2 Union Vice President Banks, who was
present during Homer Tipton’s first interview with Maggie Taylor,
confirmed that Maggie Taylor made these statements. Union
Directing Business Representative Larry Young (Union Directing
Business Representative Young) was present during the second
interview and confirmed that Maggie Taylor made these statements.
2
In deposition testimony in the present case, Maggie Taylor
denies that she told Thomas “no” or “stop” and denies that she told
Homer Tipton during the interviews that she had uttered such words
at the time of the door slamming incident.
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As his investigation progressed, Homer Tipton became concerned
about the impact of multiple union eyewitnesses, including the
Union President, testifying against Thomas in an arbitration.
Despite his concerns, Homer Tipton dutifully represented Thomas
throughout the three-step prearbitration grievance process. This
process culminated in the third-step meeting between Union and
Siemens officials.3 (J.A. 433-34).
Homer Tipton asserted in the third-step meeting that Thomas
had not intended any violent action or harm to Nancy Vance. He
also claimed that Nancy Vance was at fault because she had actually
pushed the door into Thomas. Homer Tipton further argued that
Siemens should not discharge Thomas because it had not discharged
Nancy Vance. In addition, Homer Tipton argued that Thomas’
discipline was not consistent with discipline imposed upon other
employees.
Thomas admits that she wanted Homer Tipton to make each of the
arguments he presented at the third-step meeting. There is also no
dispute that Thomas was able to personally make the additional
argument that Union President Carter was not a disinterested
witness because he supported the Continuous Shift MOA and a revote,
but she did not. Thomas also claimed injury by being struck by the
3
The CBA provides that if the parties cannot resolve the
grievance following the third-step meeting, the Union can issue a
notice of intent to arbitrate.
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door when opened by Nancy Vance. Finally, Thomas stated during the
third-step meeting: “‘I don’t believe in conflict.’” (J.A. 425).
HRD Sewell upheld Thomas’ discharge. Significant in his
decision to do so were the several eye-witness statements in favor
of Nancy Vance’s version of events, including the eye-witness
statement by Union President Carter. Additionally, HRD Sewell did
not find Thomas’ claim of injury to be credible given that the
force of a door being opened twelve inches is minimal and the fact
that Thomas had ample opportunity to report any injury she
sustained in the incident to the company’s Return to Work
Coordinator (a registered nurse) or the company’s medical clinic
prior to her leaving the plant on the day of the incident, but did
not do so. Finally, in his written decision, HRD Sewell emphasized
that although the door slamming incident alone constituted
sufficient cause to discharge Thomas, prior violent incidents
involving Thomas served as relevant background and directly refuted
Thomas’ statement that she did not believe in conflict.
One such violent incident occurred in 1996, when Thomas
grabbed co-worker Louise Mitchell by the shirt during a Union
meeting and told her that “if she ever told [her, referring to
Thomas,] to shut the f**k up again, [she would] beat the sh** out
of her . . . .” (J.A. 207). When asked during her deposition in
the present case whether she considered her statement a “threat,”
Thomas testified “[no] I didn’t. . . . I considered it a warning of
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me telling her not to do it again, and a promise that if she did do
it again, that that’s what I was going to do.” (J.A. 331).
The co-worker filed criminal charges against Thomas and a
civil suit against her in connection with the incident. In the
subsequent criminal proceeding, the judge found sufficient evidence
to convict Thomas. Union members also filed internal Union charges
against Thomas based on the assault and battery, which resulted in
Thomas being fined and prohibited from running for Union office for
three years.
HRD Sewell’s final written decision following the third-step
meeting also described another violent incident involving Thomas,
which incident occurred approximately one month prior to the door
slamming incident on March 28, 2003. In February 2003, an employee
working in the same department as Thomas requested that she be
moved away from Thomas’ work area because Thomas told her: “‘I’ll
get you when no one’s around. I’ll f**k you up, you white b**ch.’”
(J.A. 425).
Following HRD Sewell’s adverse decision, Homer Tipton decided
not to arbitrate Thomas’ discharge grievance. When determining
whether to arbitrate a grievance, Homer Tipton considers factors
such as the merits of the grievance, if it is economically viable
to bring the grievance to arbitration and whether the arbitration
will have any broader, beneficial impact on other union employees.
According to Homer Tipton, Siemens had a strong case against Thomas
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which would result in an unsuccessful arbitration of Thomas’
grievance. Of particular importance in his decision not to
arbitrate Thomas’ grievance were the multiple Union eyewitnesses,
including the Union’s president, who would testify against Thomas.
Indeed, Homer Tipton testified that he had lost several
arbitrations with Siemens specifically because Union employees had
testified against Union grievants. At the time Homer Tipton
decided not to arbitrate Thomas’ discharge grievance, the criminal
charges against Thomas in connection with the door slamming
incident had not yet been resolved.
On August 11, 2003, Darlene Thomas filed the present hybrid
§ 301 action, 29 U.S.C. § 185, against Siemens for breach of the
CBA and against the Union for breach of its duty of fair
representation. Thomas alleged five counts in her complaint.
Following the completion of discovery, Siemens and the Union moved
for summary judgment on all counts. The district court granted the
motion in toto. Thomas moved for reconsideration, but the district
court denied the motion.
Thomas has only appealed the district court’s grant of summary
judgment with respect to Counts One and Two. In Count One, Thomas
alleged that Siemens breached the CBA by discharging her without
proper and just cause. In Count Two, Thomas alleged that the Union
breached its duty of fair representation by not arbitrating her
discharge grievance.
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II.
Summary judgment is appropriate when “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 that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A mere
scintilla of evidence in support of the plaintiff’s position is
insufficient to stave off summary judgment; “there must be evidence
on which the jury could reasonably find for the plaintiff.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Moreover, “[c]onclusory or speculative allegations do not suffice
. . .” to stave off a properly made motion for summary judgment.
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002).
We review the district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to Thomas,
the nonmoving party. Kubicko v. Ogden Logistics Servs., 181 F.3d
544, 551 (4th Cir. 1999).
III.
Thomas contends the district court erred in granting summary
judgment in favor of Siemens with respect to Count One and in favor
of the Union with respect to Count Two.
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“This is a so-called ‘hybrid 301’ action, where in order to
prevail on the merits against either party, an employee must prove
both 1) that the union breached its duty of fair representation and
2) that his employer violated the collective bargaining agreement.”
Thompson v. Aluminum Co. of America, 276 F.3d 651, 656 (4th Cir.
2002). As a hybrid action under § 301, a cause of action will lie
against Siemens only if the Union breached its duty of fair
representation. Id. “Accordingly, an employee must prevail upon
his unfair representation claim before he may even litigate the
merits of his § 301 claim against the employer.” Id. at 656-67
(internal quotation marks omitted).
“It is well established that unions, as exclusive bargaining
agents in the negotiation, administration and enforcement of
collective bargaining agreements, have an implicit duty ‘to serve
the interests of all members without hostility or discrimination
toward any, to exercise [their] discretion with complete good faith
and honesty, and to avoid arbitrary conduct.’” Id. at 657 (quoting
Vaca v. Sipes, 386 U.S. 171, 177 (1967)) (alteration in original).
Accordingly, a union is found to have breached its duty of fair
representation if it exercised its discretion “arbitrarily,
discriminatorily or in bad faith . . . .” Id. at 657. See also
Smith v. Local 7898, United Steelworkers of Am., 834 F.2d 93, 96
(4th Cir. 1987).
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On appeal, Thomas does not claim that the Union exercised its
discretion either arbitrarily or discriminatorily in deciding not
to arbitrate her discharge grievance. Rather, Thomas claims that
the Union exercised its discretion in bad faith in deciding not to
arbitrate her discharge grievance.
An analysis of whether a union exercised its discretion in bad
faith focuses upon the subjective motivation of the relevant union
decision maker or makers. Thompson, 276 F.3d at 658. For purposes
of this appeal, Taylor does not dispute that Homer Tipton alone
made the decision on behalf of the Union not to arbitrate her
discharge grievance. Accordingly, our analysis focuses upon the
subjective motivation of Homer Tipton in deciding not to arbitrate
Thomas’ discharge grievance.
The primary evidence proffered by Thomas to carry her burden
of proving by a preponderance of the evidence that the Union, via
Homer Tipton, subjectively acted in bad faith in exercising its
discretion not to arbitrate her discharge grievance is the
deposition testimony of Maggie Taylor denying that she told Homer
Tipton in two separate interviews that she yelled to Thomas “No
Darlene,” (J.A. 180), and “‘stop,’” (J.A. 442), because she was
concerned about Thomas trying to hurt Nancy Vance. As Thomas’
argument goes, because Maggie Taylor denies having made these
statements, Homer Tipton must have been lying when he testified
otherwise during his deposition in the present case, and a
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reasonable jury could infer from such lying that bad faith
motivated him not to arbitrate Thomas’ discharge grievance. As
evidence of Union bad faith against her in general, Thomas points
out that Union Vice President Banks and Union Directing Business
Representative Young have corroborated Homer Tipton regarding the
alleged Maggie Taylor statements at issue.
Following our careful review of all record evidence, in the
light most favorable to Thomas, we conclude that Thomas has not
carried her burden of proffering sufficient evidence to prove by a
preponderance of the evidence that the Union subjectively acted in
bad faith in deciding not to arbitrate her discharge grievance.
Even assuming arguendo that Homer Tipton, Union Vice President
Banks, and Union Directing Business Representative Young were
somehow dishonest in reporting that Maggie Taylor made the “No
Darlene--stop” statements during her interviews, the record
discloses no evidence establishing a motive for such dishonesty or
lying, as Thomas posits, on what was actually a matter collateral
to Homer Tipton’s decision not to arbitrate Thomas’ discharge
grievance. Accordingly, a jury would necessarily have to engage in
rank speculation to find that bad faith motivated Homer Tipton to
decide not to arbitrate Thomas’ discharge grievance.
The following excerpt from Homer Tipton’s uncontradicted
affidavit makes clear that he believed Siemens had a strong case
without regard to any statements by Maggie Taylor that she yelled
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at Thomas to stop shutting the door because she feared Thomas
wanted to go after Nancy Vance:
15. After the third step meeting, Siemens upheld
the decision to terminate. I was now faced with deciding
whether to arbitrate the grievance.
16. This decision is mine and mine alone. My job
is to make the decision based on a number of factors, the
foremost being the merit of the case. It is not
appropriate to arbitrate each and every grievance
regardless of merit. . . .
I knew from experience that Siemens had a strong
case. I felt that if they discovered Maggie Taylor’s
take on the facts, it would only get stronger. I decided
not to arbitrate the Thomas grievance because in my
opinion the merits of her case could not support a
favorable award at arbitration.
(J.A. 442-44) (emphasis added).
Indeed, Siemens had an overwhelmingly strong case for
discharge against Thomas regardless of what statements Maggie
Taylor actually made during the March 28th incident. Several Union
members, including the Union’s president, corroborated Nancy
Vance’s version of events. Of these witnesses, the statements of
Lillian Cooter were extremely damaging to Thomas’ case because
Lillian Cooter had no allegiance to Thomas or Nancy Vance.
Additionally, Thomas had a well established history of violence
against coworkers. Finally, the undisputed evidence in the record
discloses that Homer Tipton conducted a thorough investigation of
the March 28th incident on behalf of the Union and that he
thoroughly and fairly represented Thomas in the first three steps
of her grievance process.
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In short, the record does not contain sufficient evidence,
when viewed in the light most favorable to Thomas, to create a
triable issue of fact that the Union, via Homer Tipton, exercised
its discretion not to arbitrate her discharge grievance in bad
faith. Because Thomas cannot prevail upon her unfair
representation claim against the Union, as a matter of law, she
cannot prevail upon her breach of the CBA claim against Siemens.
Thompson, 276 F.3d at 656-57. Accordingly, we affirm the judgment
entered by the district court in favor of Siemens and the Union.
AFFIRMED
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