Degrandis v. Children's Hosp. Bos.

• Decision Date: 25 August 2016
• Docket Number: Civil Action No. 14-10416-FDS
• Citation: 203 F.Supp.3d 193
• Parties: Paul DEGRANDIS, Plaintiff, v. CHILDREN'S HOSPITAL BOSTON, Defendant.
• Court: U.S. District Court — District of Massachusetts

203 F.Supp.3d 193

Paul DEGRANDIS, Plaintiff,

v.CHILDREN'S HOSPITAL BOSTON, Defendant.

Civil Action No. 14-10416-FDS

United States District Court, D. Massachusetts.

Signed August 25, 2016

Jennifer A. O'Brien, The Law Firm of Attorney Jennifer A. O'Brien, Whitinsville, MA, for Plaintiff.

Katherine Young Fergus, Tracey E. Spruce, Spruce Law LLC, Andover, MA, for Defendant.

ORDER ON PLAINTIFF'S MOTION TO QUASH DEFENDANT'S SUBPOENA TO UNION TO PRODUCE DOCUMENTS (#50)

M. Page Kelley, United States Magistrate Judge

I. Background

Paul DeGrandis worked as a carpenter at Children's Hospital in Boston from September 2003 until he was fired in 2008. (#1 at 1, 6.) He was fired ten weeks before his pension was to vest, allegedly because of a misunderstanding about a shelf he was supposed to have fixed. Id. at 6. He was a member of the International Union of Operating Engineers, Local 877, AFL-CIO that entered into a Collective Bargaining Agreement ("CBA") with the Hospital. Id. at 2. The CBA required that the Hospital have "just cause" for firing employees. (#1-2 at 6.¹ ) The CAB also provided for a grievance procedure to be followed when an employee was disciplined or fired. If a grievance was settled according to the rules of the CAB, it was "considered closed" and would not "thereafter be subject to the grievance procedure or to arbitration." If a grievance was not settled through the grievance procedure, it was to be arbitrated and the award of the arbitrator was final and binding on the parties. DeGrandis v. Children's Hospital Boston , 806 F.3d 13, 15 (1st Cir.2015).

DeGrandis filed this lawsuit on February 25, 2014, just a few days before the six-year statute of limitations ran, alleging that the Hospital wrongly terminated his employment. He raised three claims: breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of the CBA under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The district court dismissed all three claims (#33); Plaintiff appealed the dismissal of the claim under the LMRA.² The First Circuit reversed the district court's order dismissing the claim and remanded the case. DeGrandis , supra.

As the Appeals Court explained in its decision, in 2007, DeGrandis was injured on the job a number of times, which apparently set in motion problems that resulted in the Hospital's proposing that he be terminated. DeGrandis , 806 F.3d at 15. He filed a grievance in response, and represented by the union, entered into a Memorandum of Agreement ("MOA") with the Hospital and the union. Id. The MOA contained "a waiver of the typical rule that before proceeding to federal court a plaintiff must exhaust [the] CBA's grievance and arbitration procedures and abide by its finality provisions." Id. at 14. Specifically, the MOA stated that "any further failure to comply with the Employer's generally applicable work standards during the 12 month period following the date of this agreement shall be grounds for immediate termination, and termination on that basis shall not be subject to the grievance and arbitration provision of the parties' collective bargaining agreement." Id. at 15. When, several months later, he was fired pursuant to the MOA, the Hospital stated that DeGrandis had failed "to meet job performance standards"; DeGrandis claims that he was fired because his supervisor, who did not like him, lied to his superiors about DeGrandis's job performance. (#1 at 6.)

The Hospital argued to the First Circuit that by entering into the MOA, DeGrandis had bargained away his right to sue in federal court if he were terminated pursuant to the agreement. The First Circuit disagreed, pointing out that the MOA here, also known as a "last chance agreement," could have stated, as many similar agreements do, that in the event of the employee's termination under the agreement, the employee could still challenge the facts upon which the employer determined that the employee was non-compliant. DeGrandis , 806 F.3d at 17 n. 4. Since the agreement did not provide for any review at all, however, "under the plain language of the MOA, DeGrandis and the Hospital waived the CBA's grievance and arbitration procedures for precisely the type of grievance at issue in this case." Id. at 17. Thus, the MOA did not limit DeGrandis's right to bring his case to federal court:

Since DeGrandis could not under the MOA take advantage of the CBA's grievance and arbitration procedures, for us to find that he cannot challenge his termination in federal court would amount to giving the Hospital an unreviewable right to fire DeGrandis for any reason so long as it claimed that it was firing him for failure to abide by its work requirements. The MOA gives the Hospital no such right.

Id. at 18.

II. The Motion to Quash

After the case was remanded to the district court, the Hospital served a subpoena on the union, demanding "All documents concerning or relating to Mr. DeGrandis." (#51-1.) Plaintiff moved to quash the subpoena, arguing that the court should adopt a "labor relations privilege" whereby communications between union representatives and members are privileged. (##50, 51.) The Hospital opposed the motion to quash (#54) and DeGrandis replied. (#57.)

The court held a hearing on the motion on July 8, 2016. The court informed the parties that while it had not finally decided the issue, it was not inclined to recognize a federal labor relations privilege, and ordered counsel for Plaintiff to contact the union to determine what the records consisted of, and if any of them were privileged for a reason other than the labor relations privilege proposed by Plaintiff.

Plaintiff filed a reply to the Hospital's opposition on July 15, 2016 (#57), arguing again for the labor relations privilege, and attaching an affidavit signed by Plaintiff's counsel. The affidavit stated that Thomas Landry, counsel to the union, reported that the union's "file consisted of documents pertaining to Mr. DeGrandis' membership in the Union, as well as materials related to discipline from Hospital" and "that his law firm has performed work on behalf of DeGrandis, and attorney-created materials are included within the Union's file." (#57-2.) Therefore, DeGrandis argued, "work product and attorney/client privilege also prohibit the disclosure of some of the Union file materials and further support the plaintiff's motion to quash." (#57 at 6.) The Hospital filed a sur-reply on August 5, 2016. (#60.)

For the reasons stated below, Plaintiff's motion to quash is DENIED, as this court does not find that there is a federal labor relations privilege. As set out at the end of this Order, Plaintiff is given two weeks to file any further objections to the subpoena.

III. The Law

Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense, proportional to the needs of the case. Since he is claiming a privilege, DeGrandis has the burden of proof as to its existence and applicability. FDIC v. Ogden Corp. , 202 F.3d 454, 460 (1st Cir.2000). This is a federal question case, therefore federal common law controls with regard to evidentiary privileges. See Fed. R. Evid. 501 (privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."). The Supreme Court has cautioned that federal courts should not use the power to recognize new privileges expansively. University of Pennsylvania v. EEOC , 493 U.S. 182, 192, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). While federal courts will consider whether states have recognized a privilege when deciding whether to adopt one, see Jaffee v. Redmond , 518 U.S. 1, 12–13, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), state courts' recognition of a privilege is only one factor to be considered. Of particular importance is whether Congress "has considered the relevant competing concerns but has not provided the privilege itself." University of Pennsylvania , 493 U.S. at 189, 110 S.Ct. 577.

The First Circuit has directed that a court considering a new privilege should first determine whether Massachusetts state law would recognize the privilege. Next, the court should consider four factors: 1) whether the communications originate in a confidence that they will not be disclosed; 2) whether the element of confidentiality is essential to the full and satisfactory maintenance of the relations between the parties; 3) whether the relationship is one which ought to be sedulously fostered; and 4) whether the injury that would result to the relation by the disclosure of the communications would be greater than the benefit gained for the correct disposal of litigation. In re Hampers , 651 F.2d 19, 23–24 (1st Cir.1981).

IV. Analysis

A threshold question is whether the materials sought are relevant, although the Plaintiff has not raised this issue. The Plaintiff appears to have focused almost entirely on advocating for the proposed labor relations privilege. In the interest of shortening further litigation on this matter, the court will offer an opinion on the issue of relevancy, while leaving it to the Plaintiff to raise any objection on this ground.

The Hospital argues that it requires the records because whether the union "expressed a view—to DeGrandis or others—as to DeGrandis' alleged breach of the [MOA]" is "critical" to its claim that DeGrandis failed to comply with the Hospital's generally applicable work standards. (#54 at 11.) It is not clear, however, if the union was involved at all in the specific dispute in this case, that is, the matter of DeGrandis's alleged breach of the MOA, as the MOA by its terms precludes DeGrandis from participating in any grievance procedures in the event of a breach. At the very least, this argument concerning why the materials sought are relevant suggests that the subpoena to the union, for "All...