Beck v. United Food and Commercial Workers Union

• Citation: 506 F.3d 874
• Decision Date: 01 November 2007
• Docket Number: No. 05-16414.,05-16414.
• Parties: Cheryl Ann BECK, Plaintiff-Appellee, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 99, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

506 F.3d 874

Cheryl Ann BECK, Plaintiff-Appellee, v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 99, Defendant-Appellant.

No. 05-16414.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2007.

Filed November 1, 2007.

Michael T. Anderson, Davis, Cowell & Bowe, LLP, San Francisco, CA, for the defendant-appellant.

Helen Perry Grimwood, The Grimwood Law Firm PLC, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV-02-00495-EHC.

Before: CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

Local 99 of the United Food and Commercial Workers Union appeals from the district court's determination that Local 99 violated Title VII and breached its duty of fair representation in connection with the termination of one of its members, Cheryl Beck. Local 99's appeal requires us to consider the proper role of comparative evidence in a Title VII case against a union and the framework that must be applied to a member's claim that the union breached its duty of fair representation. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the district court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Before she was terminated for two alleged incidents of profanity, Cheryl Beck was employed as a scanning coordinator by Fry's Food Stores. At all relevant times, Beck's employment was governed by the collective bargaining agreement between Local 99 and Fry's which prohibited the use of "profane, abusive or threatening language toward fellow employees." The collective bargaining agreement also provided that an employee could not be disciplined without "just cause."

On April 13, 2001, Beck had a conversation with Bob Evans in the parking lot of Fry's Prescott store before reporting to work. Evans, an employee with whom Beck previously had a romantic relationship, had recently been promoted. The conversation became heated when Beck implied that Evans' recent promotion was due to favoritism, not merit. Evans subsequently submitted a statement to Fry's management accusing Beck of using profanity in the course of this conversation. No one else witnessed the incident.

Acting upon Evans' statement, Fry's suspended Beck. Beck reported this suspension to Barbara Cleckner, Local 99's field representative. A meeting was scheduled on April 20, 2001, among Beck, Cleckner, and Fry's, for the administration of any discipline. Prior to the meeting, Fry's management informed Cleckner that it intended to terminate Beck on the ground that Beck had a "history of a foul mouth." In eight and a half years of working for Fry's and its predecessor Smith's, Beck had not previously been disciplined for using profanity.

In her meeting with Cleckner prior to the scheduled meeting with Fry's management, Beck denied using profanity in her April 13, 2001 conversation with Evans. She also maintained that any statements made in the course of her conversation with Evans were not actionable because the conversation occurred while Beck was off duty.

At the April 20, 2001 meeting, Fry's issued Beck a "Final Written Warning," which provided, in relevant part, that "any further conduct [involving] the use of profanity, inappropriate comments or malicious gossip will result in termination." At trial, Beck testified she asked Cleckner to file a grievance contesting the warning. Knowing of both Fry's intent to terminate Beck, and of Beck's health problems, Cleckner promised to file Beck's requested grievance but she never did so.

On July 5, 2001, Beck had an argument with Cecil Carr, the store secretary, over a pay error. Carr asserted that Beck used profanity in the course of the argument, an accusation Beck denied. Fry's credited Carr's version of the incident and terminated Beck on July 9, 2001.

At Beck's request, Local 99 filed a grievance contesting Beck's termination. Beck provided Local 99 with a six-page statement setting forth the basis for her grievance. A representative from Fry's Human Resources Department conducted an investigation of the events leading up to Beck's termination and provided Local 99 with copies of relevant notes, records, and employee statements gathered in the course of that investigation. In September, Local 99 contacted its attorney to determine whether it was legally required to demand arbitration of Beck's grievance. The attorney provided an opinion letter stating that, in his view, a single incident of alleged profanity would not constitute just cause for discharge. However, the attorney opined that an arbitrator would "almost certainly" conclude that termination for a second incident of profanity constituted just cause when the first incident resulted in an unchallenged written warning less than three months earlier. Local 99 subsequently informed Beck that it would not arbitrate her grievance.

After obtaining a right-to-sue letter from the Equal Employment Opportunity Commission, Beck filed the present action in United States District Court for the District of Arizona, alleging that Local 99 discriminated against her on the basis of her sex in violation of § 703(c)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c)(1),¹ and that Local 99 breached its duty to represent her fairly.² The case proceeded to a bench trial.

As the plaintiff in a Title VII disparate treatment case, Beck bore the burden of proving that Local 99's actions were motivated by intentional sex discrimination. Beck sought to carry this burden by demonstrating that the grievances of two similarly situated men were handled by the same Local 99 representatives with greater zeal than her grievances and the grievance of another similarly situated female. Specifically, Beck introduced evidence that Cleckner and other Local 99 representatives aggressively represented Larry Molitor, a male employee who had been the subject of multiple disciplinary actions, including discipline for using "profane language, racially discriminatory remarks, and threatening comments," for threatening a co-worker with a twelve-inch knife, and for "unprofessional conduct, threatening of employees, [and] throwing product and equipment." Second, Beck introduced evidence that Local 99 aggressively represented Don Pulaski, a male employee who had been suspended after he had a tussle with another employee. The union successfully represented Pulaski, who was reinstated by Fry's. Finally, Beck introduced evidence that Local 99 did not aggressively represent Lois Reinhold, a female employee, who was terminated for allegedly extending the expiration date on some meat. Although there was evidence that the male employee who replaced Reinhold, and the male employee who had worked with Reinhold, engaged in the same conduct and were not terminated, the union did not use this comparison to help Reinhold win her job back.

The district court inferred from Beck's evidence regarding the three employees that Local 99's decisions not to pursue Beck's grievances were fueled by discriminatory animus. Having found that the union's actions were motivated by sex discrimination, the district court entered judgment in favor of Beck on her Title VII claim.

With respect to Beck's duty of fair representation claim, the district court ruled that the union breached its duty in handling both Beck's April warning and her subsequent July termination. The district court determined that Local 99's failure to file a grievance contesting the April warning constituted an arbitrary, discriminatory, and bad faith failure to perform a ministerial action. The district court also concluded that Local 99's decision not to arbitrate Beck's July termination was the result of discrimination and bad faith.

As to both these claims, the district court awarded Beck $16,304 in lost wages, $125,000 in compensatory damages for emotional distress, $50,000 in punitive damages, and attorney's fees and costs, not yet fixed. Local 99 timely appealed.

DISCUSSION

I

We first turn to the district court's holding that Local 99 breached its duty of fair representation in handling Beck's grievances. "The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985). The duty of fair representation exists because a single labor organization represents the interests of all employees within a unit, and "if individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization to `serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 n. 14, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). The burden of proving a breach of the duty of fair representation is on the plaintiff. Vaca, 386 U.S. at 193, 87 S.Ct. 903; Slevira v. W. Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000) (citing Vaca).

A union breaches its duty of fair representation when its "conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190, 87 S.Ct. 903; see also Air Line Pilots Ass'n. Int'l v. O'Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). Conduct can be classified as arbitrary "only when it is irrational, when it is without a rational basis or explanation." Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). This deferential standard for arbitrary conduct "gives the union room to make...