Mullins v. Union of Operating Engineers Local 77

• Decision Date: 08 August 2002
• Docket Number: Civil Action No. 01-1465-A.
• Citation: 214 F.Supp.2d 655
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Esther MULLINS, Plaintiff, v. The INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 77 AFL — CIO OF WASHINGTON, D.C., et al., Defendants.

214 F.Supp.2d 655

Esther MULLINS, Plaintiff, v. The INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 77 AFL — CIO OF WASHINGTON, D.C., et al., Defendants.

Civil Action No. 01-1465-A.

United States District Court, E.D. Virginia.

August 8, 2002.

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Ted G. Yoakam, David Kamp & Frank, L.L.C., Newport News, VA, for plaintiff.

William J. Hardy, Karalekas & Noone, Washington, DC, Robert W. Hesselbacher, Jr., Wright, Constable & Skeen, L.L.P., Baltimore, MD, for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiff Esther Mullins is a heavy equipment operator who claims she was (i) wrongfully terminated by her employer, (ii) unfairly represented by her union, and (iii) defamed by her employer and fellow employees. All defendants have moved for summary judgment, and because the matter has been fully briefed and argued it is now ripe for disposition.

I.

Plaintiff Esther Mullins ("Mullins"), a Virginia resident, is a heavy equipment operator who was employed by defendant Cherry Hill Construction ("Cherry Hill"), a Maryland corporation. Mullins is a member of defendant The International Union of Operating Engineers Local No. 77, AFL — CIO of Washington D.C. ("the Union"), a trade union based in Maryland. At the time of the events alleged in the complaint, defendant James A. Openshaw ("Openshaw") was president of Cherry Hill and defendants Cheryl Schmelzle ("Schmelzle") and Yvette Mathis ("Mathis") were employees of Cherry Hill. All three individual defendants maintained Maryland business addresses.

During Mullins's employment at Cherry Hill, the Union and Cherry Hill were parties to a Collective Bargaining Agreement ("the Agreement"). Included in the Agreement are provisions governing the termination of employees and grievance and arbitration procedures. In particular, Article XVI specifies that grievances against the employer on behalf of the employee may only be filed by the Union and that grievances not filed within seven days of the date of the aggrieved event are waived.¹

For approximately two weeks in March 2001, Mullins worked on the Lee Road Fairfax County Water Authority project in Fairfax County, Virginia. While there, she worked with the same Cherry Hill crew that she had previously worked with for approximately three and a half months. On March 19, after an argument with a member of this crew, Mullins reported to a Cherry Hill foreman that she had observed crew members using marijuana on the job every day for the entire time she had worked with them. As a result of this report, Cherry Hill took prompt steps the following day to test the crew members for drug use. Two employees tested positive for marijuana and were terminated.

When Mullins returned to work on March 21, she was informed by her foreman that he and the crew members were upset because they knew that she had reported their drug use. The next day, Mullins did not return to the Fairfax County Water Authority, but reported instead to the Cherry Hill office in Maryland. On March 23, she was notified that the members of her crew had either quit or been terminated.

Thereafter, Cherry Hill assigned Mullins to a new worksite at Sansbury Pit, Maryland, to which she reported early Monday, March 26. She stayed there only until 8 a.m., at which time she called Openshaw's secretary and demanded an emergency meeting with Openshaw. When Mullins arrived at Openshaw's office in Jessup, Maryland, she was met by Openshaw's secretary and driven to a nearby diner in Maryland where the meeting occurred.

The record concerning the events of this March 26 meeting is not entirely free of dispute. It is undisputed that in this meeting Mullins told Openshaw of her concern that members of her crew might seek to harm her in retaliation for her report of their drug use. It is also undisputed that Openshaw agreed to pay Mullins for four weeks during which she could seek other employment. What is disputed is whether during the course of the March 26 meeting Mullins was told her employment with Cherry Hill was terminated or would be terminated. Openshaw has consistently stated that he did not tell Mullins during the meeting that she was terminated or that she would be terminated.² Mullins's testimony on the first day of her deposition is to the same effect; she stated that during the meeting Openshaw never told her that she was fired or that her employment at Cherry Hill had been terminated.³ Yet, on the second day of her deposition, Mullins's testimony changed; she testified that she had been fired by Openshaw on March 26.⁴ Similarly, in a post-discovery affidavit filed in opposition to the defendants' summary judgment motions, Mullins claims that on March 26 Openshaw informed her that she was no longer employed by Cherry Hill.⁵

With respect to the shift in Mullins's testimony it is worth noting that the remainder of the record evidence supports Mullins's original statement that she was not told by Openshaw in the March 26 meeting that she was no longer employed by Cherry Hill. First, Openshaw and Openshaw's secretary both testified that Openshaw did not terminate Mullins on March 26. Moreover, on April 3, when Mullins received treatment at a Virginia health clinic, she indicated on the clinic intake form that she was employed at that time by Cherry Hill. Mullins also told her own expert economist during the course of this litigation that her Cherry Hill employment did not end until May 1. And, finally, Mullins's extensive handwritten notes, made contemporaneously with the events of the March 26 meeting, do not mention that her employment with Cherry Hill ended prior to May 1.

Three days after her March 26 meeting with Openshaw, Mullins met with Robert Horst ("Horst"), the Union's Business Manager, at the Union Hall in Maryland. The record concerning the events of this March 29 meeting are also not entirely undisputed. It is undisputed that in this meeting Mullins told Horst that she had reported her Cherry Hill crew for using marijuana and that Openshaw had offered her four weeks off with pay during which time she could search for other employment. It is also undisputed that Mullins asked Horst about the status of her health and welfare benefits in the event she elected to work non-union during those four weeks and requested that he verify with Openshaw that she would be paid. Yet once again, there is a shift in Mullins's testimony concerning whether she told Horst in this meeting that she had been terminated by Cherry Hill. In the first day of her deposition, she testified that in the March 29 meeting she never told Horst that her employment at Cherry Hill had ended.⁶ Mullins also testified that until May 1 she believed she was employed by Cherry Hill.⁷ But, in the second day of her deposition, Mullins stated that in the March 29 meeting she told Horst that she had been terminated by Cherry Hill on March 26.⁸ Similarly, in her post-discovery affidavit, Mullins avers that on March 29 she told Horst about her termination.⁹

Here, again, it is worth noting that the remainder of the record evidence supports Mullins's original statement that she never told Horst in the March 29 meeting that she was no longer employed by Cherry Hill, nor did she convey to him that she wanted the Union to file a grievance on her behalf concerning any termination. Horst testified consistently that in the March 29 meeting Mullins made no request that the Union initiate a grievance on her behalf¹⁰ and indeed never told him she had been terminated until May 10 or 11.¹¹ All that Mullins states on this issue is found in her affidavit where she avers that she cannot recall whether Horst used the word "grievance" in the March 29 meeting, but that she specifically remembers him using the word "arbitration." She does not aver that she asked Horst to file a grievance. Furthermore, Mullins's extensive notes on the March 29 meeting only state that she told Horst that Openshaw had told her to say that she had quit and had offered her four weeks' pay while her allegations were investigated.¹² Her notes do not reflect that she told Horst that Openshaw had terminated her on March 26, nor do they reflect that she made a grievance request. Finally, Mullins's telephone records and notes show that between March 30 and April 30 she never called the Union Hall or attempted to contact Horst either by phone or in person in regard to this matter.

Following the March 29 meeting, Horst, acting at Mullins's request, spoke with Openshaw, who confirmed that Cherry Hill would retain Mullins on the payroll.¹³ Openshaw also told Horst that he was investigating Mullins's allegations regarding drug use at Cherry Hill. The undisputed record reflects that never during this conversation did Openshaw tell Horst that Mullins had been fired, that she had quit, or that her employment with Cherry Hill had ended.

From March 26 through April 30, Cherry Hill paid Mullins her regular weekly wages. On May 1, when Mullins telephoned Cherry Hill to see if she had a job assignment, Openshaw's secretary told her that she had been informed that Mullins had quit. The next day, Mullins reported herself as out-of-work to a Union representative and he marked her work card accordingly and placed it in the out-of-work file. Mullins went to the Union Hall on May 7 to update her work card so that it properly reflected the equipment she was qualified to operate. Two days later she was offered a job through the Union, which she declined.

On either Thursday, May 10, or Friday, May 11, Mullins spoke with Horst and, for the first time, informed Horst that she had been terminated by Cherry Hill on May 1. Horst then confirmed with Openshaw that following completion of its investigation, Cherry Hill had terminated Mullins on May 1. Horst then requested that Cherry Hill provide a written explanation of Mullins's termination to the Union. Thereafter, Horst promptly arranged a meeting...