Forbes v. RI Broth. of Correctional Officers

• Decision Date: 23 April 1996
• Docket Number: C.A. No. 94-0035L.
• Citation: 923 F. Supp. 315
• Parties: James T. FORBES, Plaintiff, v. RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS, and Kenneth Rivard, Individually and in His Capacity as Grievance Chairman, Rhode Island Brotherhood of Correctional Officers, Defendants.
• Court: U.S. District Court — District of Rhode Island

923 F. Supp. 315

James T. FORBES, Plaintiff, v. RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS, and Kenneth Rivard, Individually and in His Capacity as Grievance Chairman, Rhode Island Brotherhood of Correctional Officers, Defendants.

C.A. No. 94-0035L.

United States District Court, D. Rhode Island.

April 23, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George E. Babcock, M. George Carvalho, Providence, RI, for Plaintiff.

Gerard Paul Cobleigh, Cobleigh, Watt, Rock & Giacobbe, Warwick, RI, for Defendants.

DECISION AND ORDER

LAGUEUX, Chief Judge.

This matter is before the Court on the motion of defendants, the Rhode Island Brotherhood of Correctional Officers (the "Brotherhood") and Kenneth Rivard ("Rivard"), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the four operative Counts contained in Plaintiff's Complaint.¹ Plaintiff, James T. Forbes ("Forbes"), a former employee of the Rhode Island Department of Corrections (the "Department") and dues paying member of the Brotherhood, alleges that, because of his race, defendants failed to properly assist him in appealing the termination of his employment by the Department. Plaintiff seeks legal and equitable relief pursuant to 42 U.S.C. §§ 1983 and 1985. In addition, plaintiff brings state law claims against defendants for breach of contract, breach of the duty of fair representation, and intentional infliction of emotional distress. For the reasons that follow, defendants' motion for summary judgment is granted in part and denied in part.

I. Facts

The following facts are undisputed, unless otherwise noted. Forbes, a black male, began his employment with the Department as a probationary correctional officer at the Adult Correctional Institution (the "ACI") on November 20, 1988. In this position, Forbes became a dues paying member of the Brotherhood (the union for correctional officers) and was covered by the collective bargaining agreement between the Department and the Brotherhood.

The Brotherhood, an unincorporated association under Rhode Island law, utilizes free office space in a building at the ACI owned by the State of Rhode Island, and pays for none of its utility costs, except for telephone charges. Rivard is the Brotherhood's Grievance Chairman and also a correctional officer in the Department.

During Forbes' first six months with the Department, he was required to attend several counseling sessions with his supervisors due to alleged incidents of inadequate performance on the job. Wayne Carone ("Carone"), a Brotherhood official, represented Forbes at these counseling sessions. On April 26, 1989, Forbes filed a complaint against the Department with the Rhode Island Commission for Human Rights (the "Commission") in which he alleged that the Department had discriminated against him on the basis of his race with respect to the terms and conditions of his employment, in violation of R.I.Gen.Laws § 28-5-7.

On May 12, 1989, the Department terminated Forbes for alleged poor job performance. That same day Forbes spoke with the President of the Brotherhood, John Sabelewski ("Sabelewski"), who counseled Forbes to appeal his termination to the Rhode Island Personnel Appeal Board (the "Appeal Board"). Sabelewski told Forbes that he would speak with Rivard about assisting Forbes with his appeal. Soon thereafter, on May 15, 1989, Forbes amended his complaint in the action before the Commission to include the allegation that he had been terminated because of his race.

In a letter dated May 22, 1989, Rivard filed an appeal, pursuant to R.I.Gen.Laws § 36-4-42, on Forbes' behalf with the Appeal Board. In his letter, Rivard asked the Appeal Board to notify him as soon as a hearing had been scheduled on the matter.

After extensive hearings, the Commission issued a decision and order on July 23, 1993, in which it found that the Department had discriminated against Forbes with respect to the terms and conditions of his employment due to Forbes' race. Around this time, Forbes contacted the Appeal Board regarding the status of his appeal. Forbes was informed that his appeal had been denied and dismissed, since no one appeared at the hearing on the matter which had been scheduled for January 17, 1991.

On January 18, 1994, Forbes brought suit in this Court. Essentially, Forbes contends that defendants intentionally failed to pursue his appeal with the Appeal Board because of his race. In Count I, Forbes alleges that by purposefully allowing his appeal to be dismissed because of his race, defendants have denied him the equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, in contravention of 42 U.S.C. §§ 1983 and 1985. Forbes avers in Count II that defendants breached the collective bargaining agreement between the Brotherhood and the Department by failing to pursue his appeal before the Appeal Board. In Count III, Forbes claims that defendants inadequately represented him in his appeal to the Appeal Board, thereby violating the duty of fair representation. Finally, in Count IV, Forbes alleges that defendants intentionally inflicted emotional distress upon him. Forbes seeks compensatory and punitive damages and attorneys' fees and costs, as well as equitable relief.

Forbes offers the following evidence in support of his claim that defendants discriminated against him on the basis of his race. Randi Petteruti ("Petteruti"), the Appeal Board's office manager, stated in her deposition that she mailed via regular mail two copies of the notice of Forbes' hearing date to Rivard on December 13, 1990. Forbes has presented a copy of this notice dated December 13, 1990. It reads, in part:

Please be advised that the PERSONNEL APPEAL BOARD will schedule the following PUBLIC HEARING, under Chapters 3 and 4 of the Merit System Law on Thursday, January 17, 1991, at One Capitol Hill, Providence, Rhode Island XXXXX-XXXX ... This letter, in the opinion of the Board, is sufficient notification to all parties. YOU MUST, WITHIN THREE (3) DAYS OF RECEIPT OF THIS LETTER, NOTIFY THE BOARD OF YOUR INTENT TO APPEAR ON THIS DATE, OR, A WRITTEN EXPLANATION OF THE EXTENUATING CIRCUMSTANCES WHICH PREVENT YOUR APPEARANCE. If these requirements are not met, the Board has little choice but to determine that the appeal is withdrawn or uncontested. The appeal will be dismissed, or upheld, as the situation warrants.

Forbes has also submitted a copy of a letter dated January 18, 1991, in which the Appeal Board informed Rivard that Forbes' appeal had been dismissed. The letter states:

Please be advised that a Public Hearing was scheduled in the matter of James Forbes before the Board on January 17, 1991. You failed to appear, along with the Appellant, without any explanation. Notice of this hearing was forwarded to you on December 13, 1990, and, reads in part: "YOU MUST, WITHIN THREE DAYS OF YOUR RECEIPT OF THIS LETTER, NOTIFY THE BOARD OF YOUR INTENT TO APPEAR ON THIS DATE, OR, A WRITTEN EXPLANATION OF THE EXTENUATING CIRCUMSTANCES WHICH PREVENT YOUR APPEARANCE". Since these requirements were not met, and, the Board was not duly notified of the nonappearance of Mr. Forbes, it is the decision of the Board that this appeal be denied and dismissed.

Forbes claims that, at the time he learned from the Appeal Board that his appeal had been dismissed, he was told by Petteruti that she did not send him notice of the scheduled hearing because she expected Rivard to inform Forbes of the hearing, and because she did not have Forbes' address. Forbes also contends that Petteruti told him at this time that Rivard's failure to appear at the hearing was strange, since Rivard normally contacted the Appeal Board with respect to scheduled matters.

In furtherance of his claim of racial discrimination, Forbes presents the following statistical evidence of an alleged pattern of discrimination against blacks by defendants, based on his independent review of the Appeal Board's files. According to Forbes, since 1985, the Appeal Board has dismissed the appeals of ten members of the Brotherhood due to nonappearance on the date of hearing. Of these ten cases, Forbes alleges, the Brotherhood represented seven of the appellants, and three had obtained private counsel. Forbes states that four of the seven claimants represented by the Brotherhood were black, one was white, and the race of the remaining two could not be determined. Forbes submits that this comparative evidence illustrates that defendants represented black members differently from white members.

According to defendants, no Brotherhood official ever discriminated against Forbes on the basis of his race. Rather, they contend that Rivard never received the notice of Forbes' hearing date, and that his failure to appear was an innocent mistake. Defendants argue that Forbes has failed to produce any evidence to the contrary. Therefore, defendants move for summary judgment on all four Counts of the Complaint. After hearing oral arguments on defendants' motion, the Court took this matter under advisement. It is now in order for decision.

It should be noted that the following events have transpired since oral arguments were heard in this matter. The Commission's decision holding that the Department had engaged in racial discrimination against Forbes with respect to the terms and conditions of his employment was appealed by the Department to Rhode Island Superior Court, pursuant to R.I.Gen.Laws § 42-35-15. In a bench decision on January 12, 1995, the Superior Court reversed the Commission's decision, stating that it was not supported by substantial evidence and was clearly erroneous. Forbes filed a petition for a writ of certiorari with the Rhode Island Supreme Court, but it was denied on July 27, 1995. Therefore, at this time all of Forbes' eggs are in this basket.

II. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure sets forth the familiar...