Gray v. Marinette County

• Decision Date: 27 February 1996
• Docket Number: AFL-CI,No. 95-1906-FT,S,95-1906-FT
• Citation: 546 N.W.2d 553,200 Wis.2d 426
• Parties: Jeffrey GRAY, Plaintiff-Appellant, d v. MARINETTE COUNTY, American Federation of State, County and Municipal Employees,tephen Fredericks, and James J. Kanikula, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 553

546 N.W.2d 553

200 Wis.2d 426

Jeffrey GRAY, Plaintiff-Appellant, ^d v. MARINETTE COUNTY, American Federation of State, County and Municipal Employees, AFL-CIO, Stephen Fredericks and James J. Kanikula, Defendants-Respondents.

No. 95-1906-FT.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 2, 1996.

Opinion Released Feb. 27, 1996.

Opinion Filed Feb. 27, 1996.

[200 Wis.2d 430] Appeal from a judgment of the circuit court for Marinette County; Tim A. Duket, Judge.

On behalf of the plaintiff-appellant, the cause was submitted on the brief of Clay F. Teasdale of Murphy & Teasdale of Marinette.

On behalf of the defendant-respondent, American Federation of State, County, and Municipal Employees, AFL-CIO, the cause was submitted on the brief of Bruce F. Ehlke and Aaron N. Halstead of Shneidman, Myers, Dowling & Blumenfield of Madison.

On behalf of the defendants-respondents, Marinette County, Stephen Fredericks and James J. Kanikula, the cause was submitted on the brief of James R. Scott and Thomas W. Mackenzie of Lindner & Marsack, S.C. of Milwaukee.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Jeffrey Gray appeals a summary judgment dismissing his complaint against Marinette County and his union alleging violations of the parties' collective bargaining agreement and Gray's constitutionally-protected rights. ¹ Gray argues there are disputed issues of material fact, and that even if there are no disputed material facts, the County and the union are not entitled to judgment as a matter of law. Because we conclude there are no disputed issues of material fact and that the union and the County are entitled to a judgment as a matter of law, we affirm.

According to the undisputed parts of the record, in 1990 the County advertised that it had openings for a Civilian Corrections Officer (CCO) in the Marinette County jail. According to an affidavit from the chief deputy of the sheriff's department, in order to qualify for a position, 1990 and 1991 applicants had to pass a written jailer examination administered by the Wisconsin Department of Employment Relations. Chris Mosconi, an employee in the Marinette County Parks Department, took the written jailer examination in 1990, failed to pass it and was not hired for a CCO position.

In 1991, the County again advertised that it had positions available. Gray applied and took the jailer examination, but did not pass. However, Gray was hired by the County as a part-time CCO effective May 15, 1991. After his probation period expired, Gray became a dues-paying member of the union. In December of 1992, Gray signed a posting advertising a full-time position as CCO and was given the job. Effective December 4, 1992, Gray was employed as a full-time CCO.

In February 1993, Mosconi signed a posting for a part-time CCO position. On February 12, 1993, the union filed a grievance on behalf of Mosconi, stating Mosconi did not pass the required test for the position and was "overlooked and not hired." The grievance alleged that "at this time, Mr. Mosconi has learned that the person hired for another Correction Officer position had also failed the test."

While Mosconi's grievance was denied at the first steps of the contractual grievance procedure under the parties' collective bargaining agreement, the County and the union settled the grievance before binding arbitration could begin. The settlement agreement provided:

1. Chris Mosconi will be made a full time Corrections Officer upon hiring.

2. Jeff Gray will become a part time Corrections Officer upon Chris Mosconi being hired.

3. Mosconi will have seniority over Jeff Gray during the time period both are employed at the Marinette County Jail.

4. Mosconi agrees to waive any claims for back pay, insurance coverage, etc. for the time this grievance was pending, and for any prior time period.

5. Gray has the option to take the written test for Corrections Officer. If he passes that test, he can then continue his employment as a Corrections Officer. If he fails that test or chooses not to re-test, he will have the option of remaining as a Corrections Officer for one year from the date of this agreement. During that year, he agrees to exercise his rights to post for future openings within Local 1752 for which he is qualified. If he is not successful in posting for another position during that year, he will be laid off at the end of that year.

6. Mosconi will start employment as a Corrections Officer effective June 14, 1993.

Gray was given the opportunity to sign this agreement, but elected not to do so. Instead, Gray approached two union representatives and asked them to file a grievance on his behalf because his hours had been reduced to part-time. The representatives discussed this request with Gray, the County and other union members, and determined there was no basis to file a grievance.

Gray, through his attorney, filed a written request with the County administrator, asking that the County proceed with the grievance procedure under the collective bargaining agreement, and schedule a meeting for all the parties. County corporation counsel responded, stating that the union had exclusive jurisdiction over the matter and, if the union decided the grievance had no merit, then Gray had no standing to pursue the matter under the collective bargaining agreement.

Gray filed an action in Marinette County Circuit Court, alleging: (1) the County violated the collective bargaining agreement by changing Gray's employment status and by refusing to proceed with the grievance procedure; (2) the union breached its duty and responsibility to fairly represent Gray by not pursuing grievance remedies; (3) Gray had been deprived of rights, privileges and immunities guaranteed by the constitution; and (4) Gray had been deprived of property without due process of law.

The union and the County petitioned to remove the case to federal court because Gray had alleged violations of his constitutionally-protected rights. Gray filed a motion to remand, which was granted by the Eastern District of Wisconsin. Back in state court, the County moved for summary judgment. The union moved to dismiss for failure to state a claim and, alternatively, for summary judgment. The trial court granted defendants' motion for summary judgment on all claims and dismissed Gray's complaint. Gray now appeals.

When reviewing a grant of summary judgment, appellate courts independently apply the same methodology as the trial court. Kloes v. Eau Claire Cavalier Baseball Ass'n, 170 Wis.2d 77, 83, 487 N.W.2d 77, 79-80 (Ct.App.1992). That methodology has been set forth numerous times, and we need not repeat it here. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980); § 802.02(2), STATS. Summary judgment is appropriate when material facts are undisputed and when inferences that may be reasonably drawn from the facts are not doubtful and lead only to one conclusion. Radlein v. Industrial Fire & Cas. Ins. Co., 117 Wis.2d 605, 609, 345 N.W.2d 874, 877 (1984). To defeat a summary judgment motion, the alleged factual dispute must concern a fact that affects the resolution of the controversy, and the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Baxter v. DNR, 165 Wis.2d 298, 312, 477 N.W.2d 648, 654 (Ct.App.1991). Any reasonable doubt as to the existence of disputed material fact is resolved against the moving party. Heck & Paetow Claim Serv., Inc. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831, 834 (1980).

The union and the County do not dispute the trial court's conclusion that Gray has stated a claim upon which relief could be granted. ² Additionally, Gray does not argue that the County and the union failed to make a prima facie case for summary judgment under § 802.08(2), STATS. To make a prima facie showing for summary judgment, a moving defendant must show a defense which would defeat the plaintiff. Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625, 629 (1991). Here, the County's defense was that it had no obligation to hear Gray's claim because the union had not pursued it and, furthermore, that it did not violate the collective bargaining agreement. The union's defense was that it had not breached its duty of fair representation, and it provided two affidavits from union representatives detailing the procedure they used to process Gray's grievance.

If the moving parties have made a prima facie case for summary judgment, the court must examine the opposing party's affidavits and other proof to determine whether there exist disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to a trial. Id. Thus, we must examine the parties' affidavits and determine whether there are disputed material facts or whether alternative inferences can be drawn from the undisputed facts. Gray's claims can be divided into three areas: (1) the grievance procedure; (2) the County's demotion of Gray; and (3) constitutional claims. We begin by analyzing the grievance procedure.

THE GRIEVANCE PROCEDURE

The collective bargaining agreement between the union and the County set forth the grievance procedure for disputes. The union is the exclusive bargaining representative for its members and because the grievance procedure is an integral part of the collective bargaining process, the union's exclusive agency continues with respect to the procedures designed to enforce the collective bargaining agreement--the grievance and arbitration provisions. Hanson v. Madison Serv. Corp., 150 Wis.2d 828, 836-37, 443 N.W.2d 315, 318 (Ct.App.1989). As a result, an employee does not have the right to compel his or her employer to meet with him or her to adjust a grievance where, as here, the collective bargaining agreement gives the union control over the grievance machinery. Id. at 837, 443 N.W.2d at 318. In such...