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Murphy v. Teamsters Union Local 542

United States District Court, Ninth Circuit

June 18, 2013



MICHAEL M. ANELLO, District Judge.

On February 8, 2012, Plaintiff Michael Murphy filed this action against Defendants Teamsters Union Local 542 ("Local 542") and Costco Wholesale Corporation ("Costco"), alleging breach of the duty of fair representation, wrongful discharge, age discrimination in violation of the California Fair Employment and Housing Act, and defamation. Defendants Local 542 and Costco move for summary judgment in their favor or, in the alternative, for partial summary judgment. Plaintiff, who is now proceeding pro se, did not file an opposition to either motion.

For the following reasons, the Court GRANTS Defendants' motions for summary judgment in their entirety.


This action arises out of events involving a forklift accident which took place on July 10, 2011, in a Costco warehouse in Carlsbad, California.[1] Pltf. 111:4-7[2].

Plaintiff Michael Murphy is a 55-year-old forklift driver. Pltf. 10:16-17. Prior to the incident at issue, Plaintiff had been an employee of Costco for over 25 years and a member of the union known as Local 542. Pltf. 29:21-23; Complaint ¶ 19. Over the course of his employment, Plaintiff achieved the top pay rate for hourly non-exempt employees in accordance with Costco policy, which calculates pay rate exclusively according to the total number of hours worked. Exh. 2, pg.87.[3] Age, performance, and hire date are not expressly considered. Bernardy Decl. for Costco ¶ 2.

On July 9, 2011, the evening before the forklift accident, Plaintiff consumed at least 3 drinks prior to going to sleep at 9:00pm.[4] Pltf. 240:4-9;[5] Exh. 6, pg.97; Pltf. 111:11-14. He awoke at 3:30 am and clocked in for his shift at Costco at 5:00 am. Pltf. 111:15-16; Pltf. 111:8-10.

At approximately 7:00 am on July 10, 2011, Plaintiff was operating a forklift used to shelve a pallet of shrink-wrapped mats.[6] Pltf. 126:13-16. In the process of shelving the pallet, the shrink wrap caught on one of the protrusions of the "steel."[7] Pltf. 126:13-25. This caused the pallet to tip to one side, and for one of the mats on the pallet to fall to the floor. Martinez Decl. for Costco ¶ 3; Pltf. 133:2-15. Plaintiff attempted to remedy the problem by cutting the shrink wrap; this resulted in the rest of the mats falling to the floor. Pltf. 127:2-7. While Plaintiff was rewrapping the mats in shrink wrap, two Costco managers - Ivan Martinez and Darryl Wilson - arrived on the scene and asked Plaintiff what had happened. Wilson Decl. for Costco ¶ 3; Martinez Decl. for Costco ¶ 4. Plaintiff responded that he was restocking the pallet. Id. There was no damage to personnel, shelving, or property as a result of the forklift accident. Pltf. 127:5-7.

Article XXVI(f) of the Collective Bargaining Agreement ("CBA") mandates that an employee involved in a "serious forklift accident" be subjected to a drug and alcohol test.[8] Exh. 2, pg.86. The CBA was jointly approved by Costco and Local 542. Bernardy Decl. for Costco ¶ 4; West Decl. for Local 542 ¶ 2. Managers Wilson and Martinez agreed that the incident involving Plaintiff was a "serious forklift accident, " because merchandise from the pallet fell onto the ground, and because Plaintiff was at least partly responsible for causing the incident. Wilson Decl. for Costco ¶ 4; Martinez Decl. for Costco ¶ 5. This interpretation of "serious forklift accident" was corroborated by another manager, Charles Bernardy, who trains Costco managers regarding when to send employees for drug testing. Bernardy Decl. for Costco ¶ 5. As a practical matter, Costco has consistently interpreted Article XXVI(f) by sending employees for drug testing under similar circumstances. West Decl. for Costco ¶ 7. Manager Wilson thus informed Plaintiff that he was going to have a drug test. Pltf. 141:7-10.

Martinez then drove Plaintiff to the U.S. HealthWorks testing facility in Kearny Mesa, California. Pltf. 146:15-18; Martinez Decl. for Costco ¶ 7. U.S. HealthWorks is a drug-testing facility that is wholly independent from Costco. Bernardy Decl. for Costco ¶ 6.

While waiting in the U.S. HealthWorks facility to have his blood alcohol content ("BAC") measured by breathalyzer, Plaintiff saw a technician, Ms. Teresa Zimmerman, shake the breathalyzer while saying "no, no, no, " and "dammit."[9] Pltf. 153:19-23. This was denied, however, by both Ms. Zimmerman and by Martinez. Exh. 9, pg.115:5-8; Martinez Decl. for Costco ¶ 8. The other two individuals present in the waiting room remain unidentified as of the date Defendants' motions were filed. Pltf. 154:22-24.

When Ms. Zimmerman administered the breathalyzer on Plaintiff, she ran two tests, at 9:02 am and at 9:19 am. The first test produced a blood alcohol reading of 0.092; the second reading was 0.093. Exh. 5, pg.95. Plaintiff signed the results of the breathalyzer tests to confirm that they were accurately recorded, and Zimmerman signed the results to confirm that she was qualified to administer the breathalyzer and had done so in accordance with U.S. Healthworks policy. Exh. 5, pg.95. The State of California deems a person with a BAC of 0.08 to be legally intoxicated for operating a vehicle. Cal. Veh. Code § 23152(b).

Upon receiving the results of his breathalyzer tests, Plaintiff asked Martinez for a blood test to re-measure his BAC. Martinez denied this request. Pltf. 153:11-13. Plaintiff also asked Martinez to drive him somewhere else to get another breath test; this request was also denied. Pltf. 153:14-16.

When the results of the breathalyzer tests were shown to Costco management, Plaintiff was terminated from his employment immediately. Pltf. 203:16-19. Termination was initiated by Charles Bernardy, who sought and acquired approval for Plaintiff's termination from Costco's Vice President Mario Omoss, based on Major Offense #9 of the CBA, and based on Costco's Drug and Alcohol-Free Workplace policy. Bernardy Decl. for Costco ¶ 9, 10.

Major Offense #9 under the CBA involves "bringing liquor, narcotics or dangerous drugs into the Company premises or consuming liquor or using narcotics or dangerous drugs on Company premises or reporting for duty under the influence of liquor, narcotics or dangerous drugs." Major Offense #9 "may be considered cause for immediate discharge." Exh. 2, pg. 89.

Costco's Drug and Alcohol-Free Workplace policy, a copy of which was signed by Plaintiff, states: "I understand that... I will be subject to appropriate disciplinary action up to and including termination of employment... as determined by Costco if I refuse to cooperate in a drug and/or alcohol test, test positive for drugs and/or alcohol, or otherwise violate the policy." Exh. 3, pg. 91.

At the time of Plaintiff's termination from Costco, all parties - Plaintiff, Bernardy, and Vice President Omoss - were over 50 years of age. Pltf. 10:16-17; Bernardy Decl. for Costco ¶ 12.

On July 13, 2011, Plaintiff filed a grievance with Local 542 in an attempt to reinstate his employment with Costco. Local 542 Exh. 1. The case was assigned to Michael West, a Business Agent for Local 542. West Decl. for Costco ¶ 1, 4. During the grievance process, Plaintiff requested that West interview six of Plaintiff's friends and coworkers, who he was confident could confirm that his behavior did not indicate intoxication on the morning of the forklift accident. Local 542 Exh. 4; Pltf. 236:21-239:12[10]. West did not interview these witnesses, however, because he did not believe that the witnesses' opinions could override a positive alcohol test. West Decl. for Local 542 ¶ 6. Plaintiff also requested that West review the video footage of the forklift accident, which he felt could prove that he was not intoxicated. Pltf. 354:14-19.[11] However no such video exists, because there is no video surveillance available in the area of the warehouse where the forklift accident occurred. Bernardy Decl. for Local 542 ¶ 4. In his meetings with West during the grievance process, Plaintiff never complained of the accuracy or reliability of his breathalyzer test results. West Decl. for Local 542 ¶ 5.

On July 14, 2011, West drove to the U.S. HealthWorks facility in Kearny Mesa to investigate Plaintiff's grievance. West Decl. for Local 542 ¶ 7. West spoke with a gentleman named Ray, the Back Office Manager. Local 542 Exh. 6. Ray informed West that the breathalyzer is calibrated every morning, that it clears itself of residual alcohol after each test, and that there had been no issues with the breathalyzer so far. West Decl. ¶ 7. West also learned that Ms. Zimmerman was certified to operate the breathalyzer and that her trainings were current. West Decl. for Local 542 ¶ 7.

From this investigation, West concluded that Costco's decision to send Plaintiff for drug and alcohol testing was justified under Article XXIV(f) of the CBA jointly agreed upon by Costco and Local 542. West Decl. for Local 542 ¶ 11. West also concluded that Costco was justified in terminating Plaintiff, based on the fact that he tested positive for alcohol. West Decl. for Costco ¶ 6; Local 542 Exh. 1. With Plaintiff's consent, West closed his grievance on August 9, 2011. West Decl. for Local 542 ¶ 8; Local 542 Exh. 2.

After Plaintiff was terminated, he spoke to multiple doctors at various U.S. HealthWorks locations in an effort to collect information on the reliability and accuracy of breathalyzers. One of these doctors was Nagi Ibrahim, M.D. who told Plaintiff that in order to breathe a 0.093, he "would have had to have drunk himself into a coma by midnight the night before." Complaint ¶ 12.

Plaintiff also spoke to a doctor at the U.S. HealthWorks facility in Escondido, who told him that the breathalyzer is not a perfect measure of blood alcohol content and has been known to mess up. Pltf. 371:3-372:14.[12] Another physician at the U.S. HealthWorks facility in Oceanside similarly provided Plaintiff with generalized information on breathalyzers, along with articles that appear to call into question the reliability and accuracy of the underlying methodology. Pltf. 372:20-376:2;[13] Local 542 Exh. 7.

Plaintiff's first cause of action arises out of contract breaches allegedly committed by Defendants Local 542 and Costco. Plaintiff first alleges that Local 542 breached its duty of fair representation to him as a union member, and second that Costco breached the CBA by wrongfully discharging him. Complaint, ¶ 17, 18.

Plaintiff's second cause of action alleges that Costco discriminated against him based on age, in violation of the California Fair Employment and Housing Act, codified as California Government Code Section 12940 et seq. Complaint ¶ 29, 31. Plaintiff did file charges for age discrimination with the California Department of Fair Employment and Housing and was issued notice of his right to sue, pursuant to California Government Code Section 12965(b). Complaint ¶ 32.

Plaintiff's third cause of action alleges defamation by Costco, through its employee Craig Harbin, who is a maintenance worker. Complaint ¶ 37, 38; Harbin Decl. for Costco ¶ 1. Plaintiff's allegations of defamation relate to three separate remarks, all originating from Harbin.

The first instance of alleged defamation occurred moments after the forklift accident on July 10, when Harbin told Plaintiff that he saw him drop a pallet out of the top steel. Plaintiff alleges this remark was made in the presence of Manager Martinez. Pltf. 272:24-273:8. Martinez, however, has no recollection of hearing Harbin make any such comment. Martinez Decl. for ...

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