Jones v. United Parcel Service, Inc.

Decision Date22 August 2006
Docket NumberNo. 05-2202.,No. 05-2205.,05-2202.,05-2205.
PartiesStephen E. JONES, Appellant, Doyle Clark, Appellant, v. UNITED PARCEL SERVICE, INC.; Local 41 of the International Brotherhood of Teamsters, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas R. Buchanan, argued, Kansas City, MO (Alleen Castellani VanBebber and Linda C. McFee, on the brief), for appellant Jones.

Thomas B. Weaver, argued, St. Louis, MO (Daniel K. O'Toole, on the brief), for appellee UPS.

G. Gordon Atechson, argued, Westwood, KS, for appellee Local 41.

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Plaintiffs Stephen Jones and Doyle Clark appeal the district court's1 grant of summary judgment to defendants United Parcel Service ("UPS") and Local 41 of the International Brotherhood of Teamsters ("Local 41") on their various claims of employment discrimination and breach of the duty of fair representation. We affirm.


Jones and Clark were employees at a UPS facility in Lenexa, Kansas. Jones was a tractor-trailer driver with a daily route (a "bid route") between Lenexa and Wichita, Kansas. Clark was a package sorter during the morning shift and a hazardous materials ("haz-mat") responder during the day shift. Jones and Clark also were members of Local 41, the union which represented Lenexa facility employees.

In a previous disciplinary action that is not directly at issue in this case, UPS terminated Clark for abandoning his job on September 18, 2002. Clark had arrived early to his shift, and a supervisor invited him to perform overtime work unloading trailers until his package sorter shift began fifteen minutes later. Clark insisted on sorting immediately, and when the supervisor denied Clark's request, he left the facility. Clark returned six hours later with Jones, acting in his union representative capacity, but UPS discharged Clark. Clark filed a grievance that day, and along with union representatives, he met with UPS management. He was reinstated but sanctioned with a two-day suspension.

On October 16, 2002, UPS terminated Clark again. That morning, Clark's supervisors assigned Clark to work as the morning shift haz-mat responder. These duties required Clark to carry and use a two-way radio. One of Clark's supervisors instructed Clark on how to use the radio, but Clark failed to answer any calls despite repeated attempts by supervisors and managers to call him, and he responded to spills only when supervisors approached him in person. Clark's supervisors asked to meet with Clark and union representative Greg Toplikar at the end of Clark's shift. Jeff Johnson, a Lenexa facility morning shift manager, provided Clark with an opportunity to explain why he refused to use the radio, but Clark became unresponsive and belligerent. Johnson terminated Clark because he refused to follow instructions regarding use of the radio and "was grossly insubordinate in their meeting." (R. Doc. No. 320 at xxvi).

Beginning in late-July 2002, UPS management cut Jones's bid route on twelve or thirteen occasions, and Jones filed grievances regarding many of these cuts. Around the same time, Jones, as union steward acting on behalf of other UPS drivers and on his own behalf, filed several grievances that UPS had routinely used "sleeper teams" to haul loads assigned to Lenexa facility drivers in violation of the collective bargaining agreement. A "sleeper team" is a "two-person crew[ ] that operate[s] over-the-road tractor trailers," and "take[s] turns driving ..., thus, keep[ing] the tractor on the road longer than could a single driver." (R. Doc. No. 312 at 39).

UPS terminated Jones on November 12, 2002, for job abandonment. The previous night, Jones had arrived at work to drive his bid route, but Lavell White, a manager, and Scott Wetschensky, a dispatch supervisor, cut Jones's route. They did so because there were insufficient packages to be delivered on Jones's normal route, and because they needed Jones to drive a different route. Jones told Wetschensky that he planned to go home because his route was cut, to which Wetschensky responded that leaving would be considered "job abandonment." Jones expressed to Wetschensky his view that because his route had been cut, leaving would not be job abandonment, and Jones returned home rather than drive the alternative route. UPS management decided to terminate Jones for abandoning his job, and White executed the discharge the next day.

Local 41 business agents file grievances on behalf of UPS employees who believe they have been "disciplined unfairly and in violation of the collective bargaining agreement." (R. Doc. No. 312 at 4). Agents represent union members against UPS at local hearings, during which agents meet with UPS representatives to review the circumstances of the incident leading to the grievance and to discuss settlement of the dispute. If a local hearing is unsuccessful in resolving a grievance, then the agents continue to represent the union members at the next level of review, before a "Mo-Kan panel." The Mo-Kan panels are composed of an equal number of union and UPS representatives selected by the co-chairs of a Missouri-Kansas Joint Area Grievance Committee ("Mo-Kan Committee") that is created by the collective bargaining agreement to oversee the resolution of grievances. UPS and Local 41 each appoints a co-chair of the Mo-Kan Committee, and these co-chairs select committee members to sit on Mo-Kan panels and hear specific grievances.

Business agent Clint Long filed grievances on behalf of Jones regarding Jones's complaints concerning the cutting of his bid route and the use of sleeper teams, as well as his November 12 termination. At Jones's local grievance hearing regarding his termination, Long requested that Jones be reinstated and presented evidence on Jones's behalf. Agents Toplikar and John Thompson similarly represented Clark in Clark's grievances for his September 18 and October 16 terminations. UPS upheld Jones's November 12 termination and Clark's October 16 termination at their respective local hearings, and Local 41 appealed these decisions to Mo-Kan hearing panels. The Mo-Kan panels upheld UPS's discharges of Jones and Clark. Each plaintiff stated at the end of his Mo-Kan hearing that Local 41 business agents had provided adequate representation.

Jones and Clark then filed this action, alleging that "UPS, with the knowledge, support[,] or at the suggestion of the Union, terminated [them] in violation of the collective bargaining agreement with the Union and for improper [ ]or discriminatory reasons." (R. Doc. No. 28 at 1). According to the complaint, Jones and Clark were politically active in Local 41 and opposed to Local 41's existing leadership. In 2002, Jones became the campaign manager for a slate of candidates that was nominated to run against the incumbents, and Clark ran on the opposition slate's ticket as the nominee for recording secretary. The complaint alleged that Phil Young, who had recently resigned as the Local 41 president, was outraged by the issues and accusations raised by the opposition slate, and vowed that future candidates would be prevented from raising such accusations. Clark was elected recording secretary on October 15, 2002.

Both plaintiffs raised "hybrid" claims against Local 41 and UPS, pursuant to § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, alleging a breach of the union's duty of fair representation and a breach of the collective bargaining agreement by UPS. They also asserted claims against Local 41 under § 101 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411, alleging a breach of their statutory rights as union members.

Specifically, Jones alleged that beginning in July 2002, UPS began eliminating his bid route from Lenexa to Wichita at least once per week, and that on November 11, UPS again cut his route and asked him to perform non-emergency alternative work instead. According to the complaint, Jones elected to go home, and although his supervisor made no objection, Jones was summarily terminated the next morning for "job abandonment." Clark alleged that on the morning of October 16, 2002, he was assigned to work as a haz-mat responder. He alleged that he was not provided with a belt clip or other holder for his two-way radio, and that he did not want to put the radio in his pocket for fear of suffering discipline. Clark alleged that UPS supervisors later confronted him for refusing to put the radio in his pocket, and that Clark explained he would not put anything in his pocket that did not belong to him. The complaint alleges that Clark was then immediately terminated for insubordination.

Plaintiffs alleged that after the 2002 union election, Local 41's leadership began "a campaign of retaliation against the [opposition] slate of candidates and Jones." (R. Doc. No. 28 at 23-24). They asserted that the union failed adequately to investigate, pursue, or otherwise process grievances on behalf of Jones and Clark. They further alleged that the Mo-Kan hearing panels summarily upheld their terminations, (Id. at 13, 17), and that "the Mo-Kan panel members were appointed or influenced by Union leadership hostile to [plaintiffs], including Phil Young."2 (Id. at 13; see also id. at 17).

Alternatively, Jones alleged that UPS terminated him due to his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623(a)(1), 631(a), the Kansas Age Discrimination Act, Kan. Stat. Ann. § 44-1111 et seq., and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.010 et seq., or in retaliation for blowing the whistle on alleged UPS record-keeping improprieties. Clark alternatively alleged that UPS terminated him due to age discrimination in violation of the ADEA, or racial discrimination and harassment, in...

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