The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Defendants Metropolitan Transit System ("MTS") and San Diego Trolley, Inc. ("SDTI"), have filed a motion for summary judgment, or in the alternative, partial summary judgment. For the reasons discussed below, Defendants' motion is GRANTED.
In September 2005, SDTI hired Plaintiff, Robert C. Womack, as a Code Compliance Inspector ("CCI"). (Womack Dep. (Def.'s Ex. 1) 34:3-10.) As a CCI, Womack's job duties included enforcing the ordinances of SDTI, issuing citations, making arrests, preparing incident and arrest reports, and testifying in court regarding arrests and violations. (Womack Dep. 34:11-35:18; Burke Decl. ¶ 2.) CCIs are not police officers, do not carry weapons, and are not in any way affiliated with the police department. (Burke Decl. ¶ 2.)
During Womack's training, Womack received a copy of the SDTI Rules andInstructions for employees and agreed to comply with the rules. (Womack Dep. 37:5-8.) Womack understood that failure to comply with the rules could result in discipline, up to and including discharge. (Womack Dep. 37:10-13.) SDTI's Standard Operating Procedures include the following provisions: Section 1.4.7 (prohibits employees from falsifying any statement or record); SOP 600.1(1) (provides that employees shall not violate any laws, whether on or off SDTI premises, which may have an adverse impact on the reputation or operations of SDTI); SOP 600.1(4) (prohibits unbecoming conduct, both on and off duty, which brings SDTI into disrepute or tends to impair the operation and efficiency of SDTI); and SOP 600.1(41) (requires truthfulness when asked questions by any SDTI supervisor or manager). (Def.'s Ex. 9.)
A. Canine-Handler Interview
On May 2, 2007, Womack interviewed for an SDTI canine-handler position, which
involved handling and housing "bomb-sniffing" dogs. (Womack Dep. 49:5-7; Parham Decl.
¶ 2.) The interview was with William Burke (Director of Transit Security), Lawrence Savoy (Assistant Director of Transit Security), and Sgt. Len Parham (Canine and Code Compliance Supervisor), and a TSA representative. (Womack Dep. 44:1-12.) During the interview, Womack was asked to describe the type of residence in which he resided to determine if he could accommodate the dogs. (Womack Dep. 49:8-15.) Womack responded that he had a three-bedroom house in the Santee area with a fenced-in yard. (Womack Dep. 49:16-18.)
After the interview, Parham followed up with Womack to arrange a visit to Womack's house. (Parham Decl. ¶ 3.) Initially, Womack told Parham that he could come by his house. (Id.) A short time later, Womack called Parham and told him that he did not actually live in the house he previously described but had planned to rent the house. (Id.) Womack also told Parham that the agreement to rent the house had fallen through. (Id.) Womack was actually living in an apartment. (Id.) Parham informed Burke and Savoy that Womack had lied during the interview. (Id.)
On May 4, 2007, Burke and Savoy met with Womack. (Burke Decl. ¶ 6.) Womackclaimed that he mis-spoke during the interview because he was nervous. (Id.) Womack explained that although he did not live in a house, he was in the process of trying to rent a house, and had even given the landlord a deposit check. (Id.) The agreement, however, had fallen through. (Id.) Burke offered Womack a chance to show him a copy of his deposit check or a rental agreement to prove that he was not lying. (Burke Decl. ¶ 7.) Womack refused to do so and withdrew his name from consideration. (Id.) According to Womack, he refused to produce evidence of the rental agreement because his financial information is private and does not concern anyone else. (Womack Dep. 61:5-9.)
Womack was issued a two-day unpaid suspension for his dishonesty in the canine interview. (Burke Decl. ¶ 8.) Womack did not grieve the suspension and signed his discipline letter. (Burke Decl. ¶ 8; Def.'s Ex. 16.)
Avalon Home Care ("Avalon") is a local business that provides home care services
for elderly or disabled individuals. (Brown Decl. ¶1; Baratti Decl. ¶ 1.) Marcus Brown and Junie Baratti own Avalon. (Id.)
On or about April 23, 2007, Womack left a message on Brown's cell phone. Womack claimed to be the son-in-law of an Avalon client, Mary LaDuc, and alleged that Ms. LaDuc's caretaker had stolen some of her cash. The recorded message stated:
Hello, my name is Robert Womack. I'm the son-in-law of Mary LaDuc and we need to talk to you about what happened here. We're finding some more problems here at Mary's house and I was -- my understanding is she -- you're going to come over here today to return some money that was stolen from Mary. I want to tell you I'm also with the law enforcement. I'm a police officer and I'm going to be conducting an investigation with my department. I think the best thing for you to do as soon as you can is get ahold of me or Dodie as soon as possible. I'm going to try and page you and then I will return your phone call to you. (Womack Dep. 126:13-127:9; Brown Decl. ¶ 3.)
Brown and Baratti returned Womack's call that same day. (Brown Decl. ¶ 4; Baratti Decl. ¶ 3.) Womack accused an Avalon caregiver of stealing his mother-in-law's petty cash, and stated that based on his experience in criminal matters, it appeared that the caregivewas guilty of theft. (Id.) Womack said that he would be dusting for fingerprints and warned Brown and Baratti that they could be charged criminally in connection with the matter. (Id.) Womack also inquired about whether Avalon conducts criminal background checks on its caregivers. (Brown Decl. ¶ 4; Baratti Decl. ¶ 4.) Although Avalon normally would not release criminal background reports without the consent of the subject employee, Brown and Baratti provided background check information on a few Avalon employees to Womack because they thought that Womack was a police officer. (Id.) Later, Brown and Baratti discovered that Womack was not Ms. LaDuc's son-in-law or a police officer. (Brown Decl. ¶ 5; Baratti Decl. ¶ 5.)
On May 4, 2007, Brown went to the San Diego Police Department to file a complaint against Womack for misrepresenting himself as a police officer and threatening Avalon and himself. (Brown Decl. ¶ 6.) The police told Brown to file his complaint directly with SDTI. (Id.) Accordingly, Brown went to SDTI's office and met with Burke, Savoy, and Sgt. Dave Adams. (Id.) Brown played Womack's voicemail message for them and described the subsequent phone conversation he had with Womack. (Id.)
On May 11, 2007, Savoy met with Womack to discuss Avalon's complaint. (Savoy Decl. ¶ 7.) Womack denied that he represented himself as a police officer or threatened an investigation by his department, although he did admit that he was not actually the son-in-law of Ms. LaDuc. (Id.) Upon being confronted with the recording of the voicemail, Womack said that he did not hear the recording clearly and that he did not remember specifically representing himself as a law enforcement officer or police officer. (Def.'s Ex. 18.) Savoy reported the results of the interview to Burke. (Savoy Decl. ¶ 7.)
C. Termination and Post-Termination Proceedings
On September 21, 2007, SDTI issued Womack a Notice of Intent to Terminate
Employment. (Def.'s Ex. 17.) The notice referenced the canine-handler incident and also set forth the facts regarding the Avalon incident. With respect to the Avalon incident, the letter explained:
Our conclusion is that you lied to SDTI during the course of our investigation into this incident, by denying that you left a voice mail message for Mr. Brown saying that your [sic] were in law enforcement, and a police officer, and that your department would be investigating this matter. . . . Misrepresenting yourself as a police officer was false, and his [sic] irreparably damaged your credibility. SDTI can no longer trust you to act as a Code Compliance Inspector, since it is beyond dispute that you will lie and misrepresent yourself. Since your job for SDTI includes issuing citations and making arrests, yet we know that you will lie when you see fit, you are not qualified for your position, and we have no choice but to terminate your employment. In your position you may be called upon to testify in court. Since we now know that you may testify falsely in order to obtain a result that you desire, we cannot allow you to continue in your position. (Def's Ex. 17, p, 681.) The notice explained that Womack had violated SDTI rules and procedures including Section 1.4.7 (falsification of statements or records), SOP 600.1(1) (violation of law), SOP 600.1(4) (unbecoming conduct), and SOP 600.1(15) (abuse of position).
On October 10, 2007, SDTI held a Skelly*fn1 hearing for Womack. (Greenland Decl. ¶ 8.) Mary Jane Greenland, Manager of Human Resources for MTS, was the Hearing Officer, and Burke and Savoy were present on behalf of SDTI. (Def.'s Ex. 11.) Womack was represented by counsel at the hearing. (Greenland Decl. ¶ 8.) After the hearing, Burke, Greenland, and legal counsel for SDTI agreed that termination was appropriate. (Id.) In a termination letter dated October 11, 2007, Greenland explained that SDTI had made the decision to terminate Womack's employment "for the reasons set forth in the Notice of Intention to Terminate Employment, relating to your misrepresenting yourself to a third party as a San Diego Police Officer and lying to SDTI management during the investigation into this incident." (Def.'s Ex. 11.)
Under the Collective Bargaining Agreement ("CBA") (Def.'s Ex. 12) between SDTI and the Transit Enforcement Officers' Association of San Diego ("the union"), Womack filed agrievance alleging that his termination was not for just cause. (Def.'s Ex. 13.) The CBA provides that if a grievance cannot be resolved informally or through a non-binding mediation, the dispute shall be submitted to final and binding arbitration. (CBA, Article 8.)
The arbitration was held before David B. Hart on December 10, 2008 and January 23, 2009. (Betts Decl. ¶ 6.) Womack was represented by counsel. (Id.) Womack testified, and his counsel gave an opening and closing statement, cross-examined the witnesses, and made evidentiary objections. (Id; Def.'s Ex. 4.) Womack's counsel argued that the termination was unfair because, among other things, SDTI lacked clear policies regarding discipline, and SDTI improperly considered the canine-handler incident, for which Womack had already been disciplined. (Def.'s Ex. 6.)
In a thirteen-page decision, Arbitrator Hart held that Womack's termination was for just cause. (Def.'s Ex. 3.) The arbitrator found that the evidence established that Womack misrepresented himself as a police officer, fraudulently obtained confidential information from Avalon, and was ...