Plumley v. Southern Container, Inc., Docket No. 00-140-P-C (D. Me. 10/9/2001)
| Decision Date | 09 October 2001 |
| Docket Number | Docket No. 00-140-P-C. |
| Parties | John Plumley, Plaintiff, v. Southern Container, Inc., Defendant. |
| Court | U.S. District Court — District of Maine |
Francis Jackson, Esq., Jackson & Macnichol, Portland, Me, for John Plumley, plaintiff.
James R. Erwin, Pierce, Atwood, Portland, Me; Joseph M. Labuda, Esq., Perry S. Heidecker, Esq., Milman & Heidecker, Lake Success, NY, for Southern Container, Inc., defendant,
Both the plaintiff and the defendant have filed motions for summary judgment in this action alleging breach of contract and violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 180 et seq. I deny the motion to strike and recommend that the court deny the plaintiff's motion for summary judgment and grant the defendant's motion for summary judgment.
Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citations omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, "the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citing Celotex, 477 U.S. at 324); Fed.R.Civ.P. 56(e). "This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof." International Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir. 1996) (citations omitted).
The mere fact that both parties seek summary judgment does not render summary judgment inappropriate. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure ("Wright, Miller & Kane") § 2720 at 327-28 (3d ed. 1998). For those issues subject to cross-motions for summary judgment, the court must draw all reasonable inferences against granting summary judgment to determine whether there are genuine issues of material fact to be tried. Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429 (1st Cir. 1992). If there are any genuine issues of material fact, both motions must be denied as to the affected issue or issues of law; if not, one party is entitled to judgment as a matter of law. 10A Wright, Miller & Kane § 2720.
The following undisputed material facts are appropriately supported in the summary judgment record.1
At all pertinent times, the defendant operated a manufacturing plant located in Westbrook, Maine. Defendant's Statement of Material Facts ("Defendant's SMF") (Docket No. 28) ¶ 1. At all pertinent times, manufacturing employees at this plant were represented for purposes of collective bargaining by Local 669 of the United Paperworkers International Union, AFL-CIO ("the Union"), and a collective bargaining agreement was in effect. Id. ¶¶ 2-3. The plaintiff was first employed by the defendant at its Westbrook plant on or about February 14, 1996. Id. ¶ 4. During the course of his employment at the plant, the plaintiff filed seven grievances. Id. ¶ 5.
The defendant discharged the plaintiff on or about March 21, 1998, whereupon the plaintiff filed a grievance which eventually progressed to arbitration. Id. ¶¶ 6-8. An arbitration award reduced the plaintiff's discharge to a two-week suspension without pay. Id. ¶ 10. Leo Parenteau, the plant manager, became aware of the award on or about October 5, 1998 and on October 6, 1998 sent the plaintiff a registered letter directing him to report for work on October 12, 1998. Id. ¶¶ 11-12. The plaintiff was eventually paid back wages pursuant to the arbitration award. Statement of Material Facts re Motion for Summary Judgment ("Plaintiff's Additional SMF") (Docket No. 41) ¶ 8; Defendant's Reply to Plaintiff's Opposing Statement of Material Facts ("Defendant's Response to Plaintiff's Additional SMF") (Docket No. 50) ¶ 8. During the twelve months preceding the plaintiff's recall to work on October 12, 1998 he had actually worked 851.25 hours for the defendant. Defendant's SMF ¶ 13.
The plaintiff had started a small business with three friends in 1998. Statement of Material Facts re Motion for Summary Judgment ("Plaintiff's SMF") (Docket No. 32) ¶ 6; Defendant's Response to Plaintiff's Statement of Material Facts ("Defendant's Responsive SMF") (Docket No. 38) ¶ 6. They opened a club with live music. Id. Later the plaintiff became primarily responsible for operating the club and scheduling coverage. Id. After his 1998 termination the plaintiff worked full time at the club. Id. ¶ 7. He worked full-time at the club from July 4, 1998 until it closed on December 30, 2000. Defendant's SMF ¶ 15. He received Parenteau's letter on October 7, 1998 and was unhappy with the return-to-work date of October 12 because it only gave him two business days to sort out coverage for the following week at the club. Plaintiff's SMF ¶ 7; Defendant's Responsive SMF ¶ 7. He met with Parenteau on October 8 and requested a few days' delay in his return to work; this request was denied. Id. The plaintiff reported to the plant on October 12, 1998 but worked only two hours out of his eight-hour shift in order to attend to his business at the club. Defendant's SMF ¶ 18.
The plaintiff did not report to work the next day. Id. ¶ 19. He called in to the plant and left a message that he would be late for his shift and might not be in at all. Plaintiff's SMF ¶ 10; Defendant's Responsive SMF ¶ 10. Specifically, the plaintiff testified that he remembered saying
[T]here's problems with my dad. I'm going to see him. I'm going to try to make it back to work. I'll be late, but I'm going to try to make it back and work.
Defendant's SMF ¶ 34; Deposition of John M. Plumley ("Plaintiff's Dep.") at 59. The plaintiff's father had been hospitalized in Boston from October 4, 1998 up to and including October 14, 1998. Defendant's SMF ¶ 29. The plaintiff visited his father in the hospital on October 13, 1998. Id. ¶¶ 31-32. When the plaintiff arrived at the plant the following day he was told to see Parenteau, who fired him after a brief discussion. Plaintiff's SMF ¶ 11; Defendant's Responsive SMF ¶ 11. Parenteau told the plaintiff that he was being fired for job abandonment. Defendant's SMF ¶ 20. In response, the plaintiff told Parenteau "something along the lines of, well, looks like we're going to have to grieve this one also." Id. ¶ 22.
The plaintiff invoked the Union grievance process and a grievance was filed on his behalf by the shop steward on or about October 15, 1998. Plaintiff's SMF ¶ 12, Defendant's Responsive SMF ¶ 12; Defendant's SMF ¶ 23. The written grievance stated, inter alia, that the plaintiff was "not given enough time to get his biss [sic] in order." Defendant's SMF ¶ 23. The company denied the grievance and the Union did not submit the grievance to arbitration. Defendant's SMF ¶¶ 24-25. Local 669 abandoned that grievance and several others. Plaintiff's SMF ¶ 13; Defendant's Responsive SMF ¶ 13. The plaintiff was repeatedly told by Union personnel that the Union was working on his grievance and later was told that the paperwork had been lost. Plaintiff's Additional SMF ¶ 17; Defendant's Response to Plaintiff's Additional SMF ¶ 17.2 The plaintiff learned in November 1999 that the grievance "had never been followed up with the necessary request for arbitration in the time limits allowed." Id. ¶ 18. A Mr. Lestage, whose position with the defendant or the Union is not specified by the plaintiff, told the plaintiff on November 11, 1999 that the Union would not take the case to arbitration because the required notice to arbitrate had not been given. Id. ¶¶ 18-19.
The applicable collective bargaining agreement contains a three-step grievance and arbitration procedure which requires grievances to be presented within five days after occurrence. Defendant's SMF ¶ 35. If the company response to the grievance is unsatisfactory, the grievance must be presented in writing. Id. If the grievance remains unresolved after completion of Step II of the grievance procedure, either party may serve a request for arbitration within five days of the company's answer in Step II. Id.
The plaintiff asks this court to strike six of the defendant's denials of the statement of material facts that he submitted in support of his motion for summary judgment and nine of the paragraphs included in the separate statement of material facts submitted by the defendant in opposition to his motion, all of which are found in Docket No. 38. Plaintiff's Motion to Strike ("Strike Motion") (Docket No. 48). The motion seeks to strike these paragraphs either on the grounds that particular paragraphs are not supported by the proffered citations to the record,...
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