Rupcich v. United Food & Commercial Workers Int'l Union Local 881
| Decision Date | 29 September 2014 |
| Docket Number | No. 12 C 6615,12 C 6615 |
| Citation | 69 F.Supp.3d 889 |
| Parties | Patricia Rupcich, Plaintiff, v. United Food and Commercial Workers International Union Local 881, and Jewel Food Stores, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Neal Charles Zazove, Neal C. Zazove & Associates, PC, Franklin Zachary Wolf, Asonye and Associates, Johanna R. Hyman, Jayaram Law Group, Chicago, IL, for Plaintiff.
Jonathan D. Karmel, Alexander George Barney, The Karmel Law Firm, Michael A. Warner, Jr., Abizer Zanzi, Franczek Radelet PC, Chicago, IL, for Defendant.
As grocery store receiving clerk Patricia Rupcich (“Rupcich”) was leaving work one day, she walked directly from the back room pushing a grocery cart containing her personal items, a lunch she had previously purchased at the cash register, and a twenty-five-pound bag of birdseed. After she clocked out in the front of the store and headed for the exit, a security guard standing by the front door asked her for a receipt for the items in her cart. Because she did not have a receipt for the birdseed, she was suspended and then terminated. Her Union filed a grievance, but after her employer denied the grievance, the Union chose not to pursue the grievance to arbitration. Rupcich has sued United Food and Commercial Workers International Union, Local 881, (“the Union”) for breach of the duty of fair representation pursuant to section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 and Jewel Food Stores, Inc. (“Jewel”) for breach of the collective bargaining agreement in place between the Union and Jewel, as well as defamation. The parties have cross-moved for summary judgment. For the reasons provided herein, the Court grants the Union and Jewel's summary judgment motions and denies Rupcich's cross-motions.
In this district, motions for summary judgment are governed by Local Rule 56.1. Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.2011) (citation omitted) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir.1994) ). The Seventh Circuit has “routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions.” Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir.2011) (quotation omitted).
Local Rule 56.1(b)(3)(B) requires the nonmovant to file a “concise response to the movant's statement that shall contain ... a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” LR 56.1(b)(3)(B). These responses should not contain “irrelevant information, legal arguments, [or] conjecture.”Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir.2006). Where a litigant fails to comply with such rules, the district court may “choose[ ] to ignore and not consider the additional facts that a litigant has proposed.” Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir.2005).
Rupcich worked at the Jewel grocery store located at 3940 E. 106th Street in Chicago, Illinois, as a receiving clerk. Jewel's LR 56.1(a)(3) Stmt. of Facts (“JSOF”) ¶ 25. As part of her employment at Jewel, Rupcich was a member of the Union. Rupcich's LR 56. 1(b)(3)(C) Stmt. of Facts (“RSOF”) ¶ 8. The employment of the Union members, including Rupcich, at Jewel were governed by a collective bargaining agreement entitled “Local 881 UCFW Contract 2010–2013 Jewel Food Stores, Inc. Chicagoland,” effective January 24, 2010–January 26, 2013 (the “CBA”). Id.
On January 19, 2012, at approximately 12:15 p.m., Rupcich was close to finishing her shift at Jewel when she received a telephone call from her husband. RSOF ¶ 10; JSOF ¶ 26. Rupcich's husband, who was babysitting their grandchildren, reported that one of the grandchildren was coughing and her husband needed her assistance. RSOF ¶ 10. One of Rupcich's duties that day had involved restocking large bags of birdseed.2 Id. ¶ 11. When Rupcich headed out of the store, she was pushing a shopping cart containing her personal belongings. Id. It is undisputed that her cart also carried a twenty-five pound bag of birdseed that, Rupcich contends, was intended to be restocked. JSOF ¶ 26, Rupcich's Resp. to JSOF ¶ 26. Rupcich had not purchased the birdseed and had no receipt of purchase. JSOF ¶¶ 26, 27.3
Rupcich pushed her cart toward the store's exit, past the point of sale. Id. ¶ 26. Jewel Loss Prevention Associate Gregory Young (“Young”) was standing at the exit to the store before the breezeway. Id. ¶ 27. Young asked to see Rupcich's receipt for the birdseed. Id. According to Rupcich, at that point, she realized her mistake, apologized, and acknowledged that she was not to leave the store with unpaid store product or to have unpaid store product at the location at which she was stopped. Id. ¶ 28. Rupcich returned the cart and birdseed to the wall by the service desk and left with her personal belongings. Id. ¶ 29. Young reported the incident to Jewel Loss Prevention Manager Marty Oppenhauser (“Oppenhauser”). Id. ¶ 30.
On January 23, 2012, Jewel suspended Rupcich pending an investigation. Id. ¶ 31. When Rupcich was suspended, she called Marcella Robinson (“Robinson”), her Union Representative, to report the suspension and explain her side of the story. Union's Local Rule 56.1(a)(3) Stmt. of Facts (“USOF”) ¶¶ 12, 14. Robinson quickly followed up with a phone call to the Store Manager, Raymond Ulatowski (“Ulatowski”), to request information regarding Rupcich's suspension. Id. ¶ 16.
Oppenhauser conducted an investigation on Jewel's behalf. JSOF ¶ 32. As part of the investigation, Rupcich provided a voluntary statement, in which she admits she pushed the shopping cart with the bag of birdseed past the point of sale. Id. Rupcich's statement explained that she had forgotten that she had the merchandise in her cart. Id. John Novosel (“Novosel”), an associate relations representative for Jewel, reviewed the results of the investigation and made the decision to terminate Rupcich. Id. ¶¶ 10, 33.
Jewel states that its decision to terminate Rupcich was based on several factors. First, Novosel reviewed the security videotape and still photos, which showed that Rupcich had passed the point of sale and was headed out of the store with the birdseed.Id. ¶ 34. Second, Novosel took note that the language of Jewel's misappropriation policy did not contain a requirement that intent on the part of any employee be shown in order for an action to constitute misappropriation.4 Id. ¶¶ 17, 35. Third, Novosel reviewed Rupcich's voluntary statement and determined that inadvertence was not a mitigating circumstance that would weigh against termination. Id. ¶ 35. After doing so, Novosel made the decision to terminate Rupcich and memorialized his decision in a Corrective Action Review Notice form, which is used by Jewel to inform employees and their union representatives of any disciplinary decisions. Id. ¶ 36.
On January 31, 2012, Store Manager Ulatowski met with Rupcich, accompanied by Union Representative Robinson, to inform Rupcich she was being terminated. Id. ¶¶ 38–39. Ulatowski presented Rupcich with the Corrective Action Report, which indicated that she was being terminated for misappropriation, and asked that she sign the form. Id. ¶ 39. Robinson advised Rupcich not to sign, and she did not. USOF ¶ 25. Mary Anzalone (“Anzalone”), Jewel's personnel coordinator, was then brought into the meeting to act as a neutral witness to attest to the fact that Rupcich declined to sign the corrective action document. JSOF ¶ 39. Jewel did not disseminate the Corrective Action Report to any other personnel within the company or outsiders. Id. ¶¶ 46–47.
After Rupcich was terminated, Robinson filed a timely grievance on Rupcich's behalf, which requested that Jewel award Rupcich all of the relief Rupcich sought, including reinstatement and deletion of the disciplinary action from Rupcich's file. USOF ¶¶ 18, 19. The Union also asked Jewel to provide the documentation that it relied upon for its disciplinary action (although Rupcich disputes that Jewel provided all of the requested documentation). Id. ¶ 20, Rupcich's Resp. USOF ¶ 20.
On February 4, 2012, Jewel denied Rupcich's grievance. USOF ¶ 26. Robinson then held a follow-up meeting with the Union's Grievance Coordinator, Bill O'Keefe (“O'Keefe”), to discuss the denial. Id. ¶ 27. Robinson and O'Keefe reviewed the relevant information to determine whether to arbitrate the grievance, including Rupcich's awareness of Jewel's misappropriation policy and the fact that she admitted that she had not purchased the bag of birdseed. Id. ¶¶ 10, 29. O'Keefe states that he made the decision not to arbitrate based upon the facts of the investigation and his knowledge that Jewel typically applied its misappropriation policy without an exception for lack of intent.5 Id. ¶ 31. The Union informed Rupcich of its decision and her right to appeal to the Union's Executive Board, which she did. Id. ¶¶ 32, 33, 35. Rupcich and her attorney provided the Executive Board with the same facts that O'Keefe had considered, along with a synopsis of the investigation. Id. ¶¶ 35, 38. The Executive Board denied her appeal, and this lawsuit ensued. Id. ¶ 39.
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court gives “the non-moving party the benefit of conflicts in the evidence and reasonable inferences that could be drawn from...
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