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Smith v. Pacific Bell

August 11, 2009

BLAKE SMITH, PLAINTIFF,
v.
PACIFIC BELL, COMPANY, INC., ET AL., DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE SHANE SPENCER, AND ALAN DEFENDANTS PACIFIC BELL TELEPHONE JUDGMENT (Doc. 49) AND MOTION BROWN'S MOTION FOR SUMMARY TO STRIKE (Doc. 106)

I. INTRODUCTION

Plaintiff brings this action pursuant to § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, claiming that his employer, defendant Pacific Bell, Inc. ("Pacific Bell"), terminated his employment in violation of the collective bargaining agreement between Pacific Bell and Plaintiff's union, defendants District 9 and Local 9333 of the Communications Workers of America, AFL-CIO ("CWA" or "Union"). Plaintiff also alleges that the Union breached its duty of fair representation by conducting a perfunctory investigation and refusing to take his grievance to arbitration. Plaintiff also brings attendant state law claims for fraud and defamation.

On December 6, 2006, Plaintiff filed a Complaint for Wrongful Termination against Defendants Pacific Bell; AT&T Communications of California, Inc.;*fn1 SBC Telecom, Inc.; Shane Spencer; Alan Brown; Communications Workers of America Local 9333 Union AFL-CIO ("Local 9333" or "Local Union"); and Communications Workers of America District 9 Union AFL-CIO ("District 9").*fn2 The Third Cause of Action alleges breach of the Collective Bargaining Agreement against all Defendants; the Fourth Cause of Action alleges fraud against the Union Defendants; the Fifth Cause of Action alleges breach of the duty of fair representation against Local 9333 and District 9; and the Sixth Cause of Action alleges defamation by slander against all Defendants.

Before the court for decision is the motion for summary judgment filed by Defendants Pacific Bell, Shane Spencer, and Alan Brown.*fn3

II. FACTUAL BACKGROUND*fn4

In October 2005, Plaintiff worked as a cable locator for Pacific Bell, a regional telephone company providing telephone and data transmission services to retail consumers over its telecommunications infrastructure and facilities. (SUF 1.) Pacific Bell and the Union are parties to a collective bargaining agreement ("CBA") which states that employees can only be terminated for "good cause." (SUF 3.) The CBA also contains a mandatory grievance clause and provides for final and binding arbitration. (SUF 4.) Plaintiff was a member of the Union, who was the exclusive bargaining agent for a bargaining unit of Pacific Bell employees that included Plaintiff. (SUF 2.)

Under the CBA, the Union may file a grievance based on any alleged violation of the CBA. (Dec of D. Flores ¶ 4.) A grievance may be addressed at three stages ("Step 1 through Step 3"), with each step involving a more senior company and union official.*fn5 (Id.) If the grievance is not resolved at Step 3, the Union may appeal the Company's decision to a neutral arbitrator. (Id.) The decision whether to take an unresolved grievance to arbitration is made at the district level. (Id. ¶ 6.) After the matter has been moved to the district level, the local union does not have any continuing obligation regarding the investigation, handling or processing of the grievance. (Id. ¶ 7.)

Pacific Bell vehicles are generally equipped with a Vehicle Tracking Unit ("VTS"), which directly links to Global Positioning Satellites ("GPS"). (SUF 13.) Pacific Bell equipped Plaintiff's work vehicle with GPS several years prior to the events at issue in this case. (SUF 14.) It is undisputed that Plaintiff knew his vehicle contained a GPS monitoring device on October 17, 2005. (Pl.'s Dep. 102:18-102:20.)

Pacific Bell's use of GPS data for disciplinary purposes is authorized by the CBA. (Dec. of G. Flores ¶ 3.) In 2004, the Union expressed concerns about Pacific Bell's use of GPS data for employee discipline. (Id. at ¶ 8-9.) The Union proposed that GPS data not be used at all. (Id.) Pacific Bell rejected this and proposed that the parameters be spelled out in an enforceable side-letter agreement. (Id.) On July 12, 2004, Pacific Bell and the Union entered into "a side letter agreement:"

GPS is one of many management tools used to review employee used as the performance sole basis or for behaviors. disciplinary action, but GPS will not be may be used to substantiate information obtained from other sources. As in all cases where discipline may be warranted, management will conduct a complete and thorough investigation and may utilize GPS reports as an additional tool in the investigation.

(Exh. B to Dec. of D. Flores.)

Pacific Bell uses GPS reports for a variety of reasons, such as ensuring that employees are working at assigned locations at particular times or to ensure that vehicles are being operated safely within the speed limits. (Dec. of G. Flores ¶ 8.) The reports generated by the GPS system report the following data: (a) the time and location of the vehicle every time the ignition is turned on and off; (b) the time and location of the vehicle every seven minutes; (c) the time and location of the vehicle every one mile driven; and (d) the time and location of the vehicle the first time it reaches 20 mph after the ignition is initially turned on. (SUF 13.)

According to Steve Larson, Manager of Vehicle Tracking Services since March 2001, GPS units attached to Plaintiff's vehicle on October 17, 2005 are extremely accurate. (Larson Dec. ¶ 1,5.) Although there are time that the system has experienced problems, those instances are rare. (Larson Dec. ¶ 5.) If the GPS unit is not functioning properly, the report will indicate a problem. (Id.) According to Larson, the GPS records from Plaintiff's vehicle on October 17, 2005 did not indicate a malfunction or error. (Larson Dec. ¶ 4, 10.) Larson also stated that there was no record of service request concerning Plaintiff's GPS unit in October 2005. (Larson Dec. ¶ 10.)

On October 17, 2005, Plaintiff's company vehicle was stolen while he was locating cable in Keyes, California. (SUF 6.) At around 1:00 p.m., Plaintiff maintains he parked his vehicle, removed the keys from the ignition, locked the van, and proceeded to the rear of the van to remove his locating wand. (SUF 6; Dec. of A. Brown ¶¶ 8-9.) Plaintiff then began walking to the worksite, away from his company vehicle. (Id.) Pacific Bell had a rule requiring locking company vehicles and Plaintiff was aware of this company rule. (SUF 43; Pl.'s Dep. 35:3-35:10.) Plaintiff's van was also equipped with GPS equipment. (SUF 14.)

According to Plaintiff, sometime after 1:00 p.m., he was cable locating approximately 150 feet away when he saw a bicyclist approach his vehicle. Plaintiff noticed the bicyclist pick something up off of the ground and enter the cabin of his vehicle. The bicyclist then proceeded to drive off in the vehicle.

Plaintiff immediately moved toward the van and dialed 911.*fn6 (SUF 7.) After concluding the short pursuit and the 911 call, Plaintiff phoned his supervisor, Alan Brown.*fn7 (SUF 8.)

Plaintiff's stolen vehicle was located approximately 20-30 minutes later.*fn8 (SUF 10.) A CHP officer, who had arrived at the the theft location (Nunes and Washington Streets), drove Plaintiff to the location of his recovered work vehicle (Nora Avenue and Ninth Street). (Pl.'s Dep. 82:1-82:9.) Local Shop steward John Mastrangelo ("Mastrangelo") and Brown were at the location of the recovered vehicle when Plaintiff and the officer arrived.*fn9 (Pl.'s Dep. 83:1-83:4, 86:15-86:22.) Upon inspection, the vehicle was missing the company laptop, miscellaneous tools, and change from the ashtray. (SUF No. 10.)

On October 18, 2005, Plaintiff attended an investigatory meeting concerning the theft of his work vehicle.*fn10 (SUF 16.) Plaintiff, Mastrangelo, Brown, and another Pacific Bell representative attended the meeting. (SUF 16.) Brown told Plaintiff that GPS data from the van showed that it had been idling at the time of the theft. (SUF 15, 19.) Plaintiff was given an opportunity to explain his side of the story. (SUF 17.) Plaintiff denied leaving the keys in the vehicle while it was running and stated that the keys must have fallen off his keychain when he was locking the vehicle's rear doors. (SUF 18.) At the conclusion of the meeting, Plaintiff was suspended pending further investigation. (SUF 18.)

On November 1, 2005, during his suspension, Plaintiff was asked to meet with an investigator from the Pacific Bell's Asset Protection Division. (SUF 21.) During this meeting, Plaintiff denied he left the vehicle idling and could not explain why the GPS report said otherwise. (SUF 22.) He repeated that he removed the keys from the ignition and must have dropped them when removing equipment from the vehicle's rear doors. (SUF 22.)

On November 2, 2005, Brown conducted a test of Plaintiff's vehicle to ensure the GPS unit functioned properly. (Dec. of A. Brown ¶ 15.) Brown made four stops at specific addresses near where Plaintiff's vehicle was stolen. (Id.) Brown also restarted the vehicle along Plaintiff's route. (Id.) After returning the vehicle to the garage, Brown had Larson pull the vehicle's GPS report. (Id.) The report confirmed that the GPS unit was functioning properly as all the starts, stops, and times matched Brown's contemporaneous notes of his movements earlier that day. (Id.) Brown sent a summary of his findings to Spencer and Asset Protection. (Id.)

On November 18, 2005, Brown, Spencer, Ellen Singleton (Labor Relations), and Roger Odom (Human Resources), met to discuss the investigation, Asset Protection's findings, and Plaintiff's disposition. (Dec. of A. Brown ¶ 16.) Brown and Spencer determined that the evidence demonstrated that Plaintiff's vehicle was idling when it was stolen, which meant the keys were in the ignition and that Plaintiff's report of the facts was false. (SUF 25.) Spencer and Brown decided to terminate Plaintiff for not safeguarding company property and misrepresenting facts during the investigation, i.e., that Plaintiff lied.(SUF 25.)

On November 22, 2005, Plaintiff attended a meeting with Mastrangelo, Johnson, Brown, Spencer, union representative Virginia Santos, and cable repair manager Warren Anderson. (SUF 26.) Brown conducted the meeting and informed Plaintiff that he was terminated. (SUF 26.) Brown stated that the investigation determined that Plaintiff violated the Company's Code of Business Conduct by failing to safeguard company property and that he misrepresented facts during the investigation. (SUF 26.) During his employment, Plaintiff had been disciplined for violations of Pacific Bell Policy and was advised, on at least four occasions, that any further incidents could lead to termination. (SUF 5.)

On November 23, 2005, during a staff meeting, a service technician asked Brown several questions concerning Plaintiff's termination.*fn11 (SUF 50.) According to Plaintiff, Brown responded that Plaintiff was terminated "because of lying during an investigation." (SUF 51.) Plaintiff also claims to have overheard Spencer tell Brown that he thought Plaintiff was lying about what happened on October 17, 2005 and he would use GPS to prove it. (SUF 53.)

Following Plaintiff's discharge, the Union filed a grievance on his behalf. (SUF 27.) The union asserted that the sole reason for Plaintiff's dismissal was the GPS report, which was in direct violation of the CBA and agreement governing Pacific Bell's use of GPS records. (Exh. H, Dec. of L. Johnson; Exh. C, Dec. of D. Flores.) Pacific Bell denied that GPS was the sole reason for his dismissal and maintained that Plaintiff's explanation regarding the theft was not plausible. (Id.) Plaintiff had three prior disciplinary incidents, the most serious of which resulted in the warning that he could be terminated if another incident occurred. The union requested that Plaintiff be reinstated to his position at Pacific Bell and made whole in all other respects. (SUF No. 46; Exh. D, Dec. of D. Flores.)

A Step 1 grievance meeting was held on December 7, 2005. (SUF 28.) Brown, representing Pacific Bell, and Johnson, representing Local 9333, attended the Step 1 meeting, at which time Johnson demanded that Plaintiff be reinstated. (Dec. of Brown ¶ 16.) Brown refused Johnson's request to reinstate Plaintiff and denied the grievance. (Id.) Brown also confirmed that Johnson received all of the documentation she requested, including copies of the asset protection report, interview notes, the GPS report, and the Stanislaus County Sheriff's report. (Doc. 50-4, Exh. F, pp. 18.)

A Step 2 grievance meeting was held on January 5, 2006. (SUF 29.) Larry Gordon, Juan Saralegui, John Mastrangelo, and Lynn Johnson attended on behalf of the Union. (Dec. of S. Spencer ¶ 17.) Spencer and Tony Kobliska attended on behalf of Pacific Bell. (Id.) According to the minutes of the meeting, the group reviewed Plaintiff's grievance and Local 9333 representatives again requested that Plaintiff be reinstated to his full-time position. (Doc. 53, Exh. E, pp. 35.). Lynn Johnson asked why Plaintiff was terminated instead of suspended for 30/60 days. Kobliska stated that Plaintiff "was terminated because of his inherent risk to the business." (Id.) Pacific Bell refused to reinstate Plaintiff and denied the grievance. (Id.)

A Step 3 grievance meeting was held on February 16, 2006. (SUF 30.) Larry Gordon and Lynn Johnson attended on behalf of the Union. (Dec. of D. Flores ¶ 11.*fn12 ) Murchison, Kubliska, and John Berringer attended on behalf of Pacific Bell. (Id.) Local 9333 again asserted that Plaintiff was dismissed solely because of the GPS report, contrary to the side-letter agreement. (Id.) Although Pacific Bell admitted that it "used GPS heavily on this," it asserted that his termination was "based on the vehicle being stolen." (Id.) Pacific Bell maintained that Plaintiff's explanation regarding the theft was not plausible, i.e, that Plaintiff lied. (Id.) Pacific Bell refused Local 9333's request to reinstate Plaintiff and denied the grievance. (Id.)

On March 9, 2006, District 9 notified the company of its intent to arbitrate Plaintiff's grievance under Sections 7.10C, 7.10D, 7.11D, and 7.15 of the CBA. (SUF 32.) District 9 maintained that the termination was not justified and requested that Plaintiff be reinstated, that the company remove all the documentation concerning the incident, and that Plaintiff be made whole in every respect. (Dec. of D. Flores ¶ 11.)

Plaintiff's arbitration was set for September 27, 2006. Prior to the arbitration, the Union and Pacific Bell exchanged Plaintiff's personnel records, as well as numerous operating manuals, GPS-related documents, and information about other employees disciplined after reviewing GPS records. (SUF 33-34.)

After a meeting between Plaintiff and the Union's attorney, Mr. Rosenfeld on September 25, 2006, District 9 formally withdrew Plaintiff's grievance. In a letter to Pacific Bell's arbitration counsel, Rosenfeld stated that District 9 decided not to pursue the grievance any further because "after reviewing the evidence, we determined that we could not prevail." (SUF 36-37.)

III. PROCEDURAL BACKGROUND

On December 6, 2006, Plaintiff filed a complaint for wrongful termination against Pacific Bell, AT&T, SBC Telecom, Inc., Spencer, Brown, the Local Union, and District 9. (Doc. 2.) Count III alleges that Pacific Bell breached the CBA by terminating Plaintiff's employment without good cause. Also under Count III, Plaintiff alleges that the union breached the CBA by failing to protect his employment following his suspension and discharge.

Count IV alleges that the union defendants committed fraud when they deceived Plaintiff into making monthly dues payments with full knowledge that they would not fulfill their promise to protect his interests. Count V alleges that the union defendants breached their duty of fair representation by performing a perfunctory investigation and arbitrarily failing to pursue his claim to arbitration. Count VI recites state law claims for libel and blacklisting, arising out of the defendants allegedly telling Pacific Bell employees that Plaintiff was discharged for lying. Plaintiff alleges that these false statements have made it impossible for him to acquire employment in Stanislaus County.

Defendants Pacific Bell, Shane Spencer, and Alan Brown filed their motion for summary judgment on December 28, 2007. (Doc. 49.) With their motion, Defendants filed a Statement of Undisputed Facts. (Doc. 50-1.) Defendants seek judgment on the grounds that Plaintiff cannot demonstrate that the union defendants breached the duty of fair representation - a prerequisite to finding Pacific Bell breached the CBA. Defendants also argue the state law claim should be dismissed because: 1) the statements were privileged under Cal. Civ. Code § 47; 2) Plaintiff's claim is preempted by § 301 of the LMRA; and 3) the allegedly defamatory statements are not actionable as they are true.

Defendants' motion for summary judgment was noticed for hearing on January 28, 2007. By Stipulation and Order filed on January 22, 2008, (Doc. 59), the hearing on the motions for summary judgment was continued to March 17, 2008.

Plaintiff filed his opposition to Defendants' summary judgment motion on February 29, 2009. (Doc. 71.) In support of his opposition, Plaintiff submitted: (1) a single Memorandum opposing all the motions ("Memorandum"); (2) the affidavit of John Mastrangelo; (3) the affidavit of Michael Caloyannides, PhD; and (4) a single Statement of Disputed Facts ("PSDF"). (Docs. 72-74.) Plaintiff did not file an opposition to Defendants' statements of undisputed facts.

On March 10, 2008, Defendants filed a reply and evidentiary objections. (Docs. 90, 94.) Defendants objected to the affidavits of John Mastrangelo and Michael Caloyannides, PhD., and Plaintiff's Statement of Disputed Facts. (Doc. 85, 87, 92.)

By Minute Orders filed on March 10, 2008, April 23, 2008, June 11, 2008, and August 5, 2008, the hearing on the motions for summary judgment were continued due to the press of court business. (Docs. 76, 97, 98, 100.) The August 5, 2008 Minute Order continued the hearing from August 11, 2008 to August 25, 2008.

On August 11, 2008, Plaintiff filed a Supplemental Affidavit of Michael Caloyannides, PhD, in opposition to the motions for summary judgment (Doc. 101). On August 12, 2008, Plaintiff filed his "Reply and Objections to Defendants' Separate Statements of Undisputed Facts" in opposition to the Employer Defendants' motion for summary judgment, (Doc. 102), his "Reply and Objection" to Defendant Local 9333's statement of undisputed facts in support of Local 9333's motion for summary judgment, (Doc. 103), and his "Reply and Objection" to Defendant District 9's statement of undisputed facts in support of District 9's motion for summary judgment, (Doc. 104). Also on August 11, 2008, Plaintiff filed a "Supplemental Statement of Disputed Facts." (Doc. 105.)

On August 14th, 2008, Pacific Bell, Spencer, and Brown filed a motion to strike the documents filed by Plaintiff on August 11th and 12th. (Doc. 106.) The hearing on the motions to strike was set for August 25, 2008, the same day as the summary judgment hearing.

By Minute Orders filed on August 20 and 28, 2008, and September 2, 2008, the hearing on the motions for summary judgment and motions to strike was continued.*fn13 (Docs. 118, 120, 121.) The September 2, 2008 Minute Order continued the hearing from September 15, 2008 to September 29, 2008.

The parties appeared before the court on September 29, 2008, for argument on Defendants' motion for summary judgment and motion to strike. During the September 29, 2008 hearing, the Court stated to Plaintiff's counsel "if you can find me a case, I'll let you do it, that says that the making a [sic] negligent or an incomplete investigation that breaches the duty of fair representation." On October 2, 2008, Plaintiff filed a "Submission of Supplemental Authority After Oral Argument Re: Motion for Summary Judgment". (Doc. 130.)

On October 7, 2008, Pacific Bell, Spencer, and Brown moved to strike Plaintiff's Supplemental Authority on the ground that it was not authorized to be filed by the Court and constituted a re-briefing of arguments and authority already presented to the Court.

(Doc. 133.) District 9 joined the motion on October 10, 2008. (Doc. 134.) The Court denied Defendants' motion on October 27, 2009 and granted Defendants an opportunity to file responsive papers to the supplemental authority. (Doc. 135.)

On November 10, 2008, Pacific Bell, Spencer, and Brown filed a response to Plaintiff's "Submission of Supplemental Authority After Oral Argument Re: Motion for Summary Judgment." (Doc. 139.)

A. Motion to Strike (Doc. 106.)

The motion for summary judgment was filed by Defendants on December 28, 2007 and noticed for hearing on January 28, 2007. By Stipulation and Order filed on January 22, 2008, (Doc. 59), the hearing on the motions for summary judgment was continued to March 17, 2008. The Stipulation and Order provided:

Any opposition or reply shall be filed in accordance with F.R.C.P. and Local Rules based Plaintiff shall not seek a further continuance on the new hearing date [March 17, 2008]. of the Summary Judgment Motions and shall not raise the need for additional time in Plaintiff's Opposition to the Summary Judgment Motions.

Plaintiff's oppositions to these motions were filed on February 29, 2008. Although Plaintiff filed his Statement of Undisputed Facts in opposition to the motions for summary judgment, Plaintiff did not comply with the requirements of Rule 56-260(b), Local Rules of Practice:

Any party opposing a motion for summary judgment or summary adjudication shall are undisputed and deny those that are of Undisputed Facts and reproduce the itemized facts in the Statement admit those facts that citation to the particular portions of any disputed, including with each denial a answer, admission or other document relied pleading, affidavit, deposition, interrogatory upon in support of that denial.

Defendants' reply papers were filed on March 10, 2008. By Minute Orders filed on March 10, 2008, April 23, 2008, June 11, 2008, and August 5, 2008, the hearing on the motions for summary judgment was continued due to the press of court business. The August 5, 2008 ...


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