Sanders v. Culinary Workers Union Local No. 226

• Decision Date: 29 April 1992
• Docket Number: CV-S-90-446 RDF (LRL).,No. CV-S-89-735 RDF (LRL),CV-S-89-735 RDF (LRL)
• Citation: 804 F. Supp. 86
• Parties: Robert SANDERS, Plaintiff, v. CULINARY WORKERS UNION LOCAL NO. 226, Defendant. Robert SANDERS, Plaintiff, v. OGDEN ALLIED LEISURE SERVICES, INC., a Delaware Corporation; fka Ogden Food Service Corp.; and Culinary Workers Union Local No. 226; Defendants.
• Court: U.S. District Court — District of Nevada

804 F. Supp. 86

Robert SANDERS, Plaintiff, v. CULINARY WORKERS UNION LOCAL NO. 226, Defendant.

Robert SANDERS, Plaintiff, v. OGDEN ALLIED LEISURE SERVICES, INC., a Delaware Corporation; fka Ogden Food Service Corp.; and Culinary Workers Union Local No. 226; Defendants.

Nos. CV-S-89-735 RDF (LRL), CV-S-90-446 RDF (LRL).

United States District Court, D. Nevada.

April 29, 1992.

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Daniel Marks, Las Vegas, Nev., for plaintiff.

J. Thomas Bowen, Las Vegas, Nev., Davis, Cowell & Bowe, San Francisco, Ca., for defendant Culinary Workers Union.

David Barron, Michael J. Keahey, Lefebvre, Barron & Oakes, Las Vegas, Nev., for defendant Ogden Allied Leisure Services.

AMENDED ORDER

PRO, District Judge.

I. INTRODUCTION

The Culinary Workers Union, Local No. 226 (Union) seeks summary judgment on the claims made by Robert Sanders (Sanders) that the Union discriminated against him because of his race, breached his employment contract, breached its covenant of good faith and fair dealing, is liable for negligent and intentional infliction of emotional distress, that he was wrongfully terminated in violation of public policy, and that the Union breached its duty of fair representation. (Doc. No. 22).

Ogden Allied Leisure Services, Inc. (Ogden) seeks summary judgment on the claims made by Sanders that Ogden discriminated against him because of his race, breached his employment contract, breached its covenant of good faith and fair dealing, is liable for negligent and intentional infliction of emotional distress, and that he was wrongfully terminated in violation of public policy. (Doc. No. 24).

The Honorable Roger D. Foley, Senior United States District Court Judge has referred this matter to the undersigned for consideration. For the following reasons, the Union will be granted summary judgment on all of Sanders's claims. Ogden will also be granted summary judgment on all of Sanders's claims.

II. FACTS

Plaintiff, Robert Sanders, was a member of the Culinary Workers Union employed as a food equipment handler by Ogden Allied Leisure Services which provides catering services to McCarran International Airport at Las Vegas, Nevada. A collective bargaining agreement between Ogden and the Union describes the various rights and responsibilities of the parties. Contained in the agreement is a provision stating that after 40 days service an employee will only be terminated for just cause. The agreement further sets out procedures which must be followed when an employee is terminated. An employee must be given a written warning and a reasonable opportunity to correct any deficiency in performance before he may be discharged except under certain circumstances such as willful misconduct. The agreement also contains procedures governing the filing of grievances and the manner in which they are to be adjusted.

One of Sanders's duties as a food equipment handler was to drive catering trucks to the airplanes. Ogden has procedures for catering an aircraft which require that after a truck is positioned under the aircraft, two employees, a loader and a driver, are to enter the rear of the truck bed and close the rear door. The driver is then to open the front door and raise the truck bed to the catering position using a pair of "deadman" switches located at the front of the truck. By raising the truck from the front, the driver is able to see the aircraft so as to be able to correct any misalignment. Once the truck is in place the driver and loader are then to move the food onto the aircraft. Sanders had been employed by Ogden since 1982 and was familiar with these safety procedures. This is evidenced by his having taken various safety examinations, including one in which he described the above procedures in detail.

On April 9, 1989, Sanders and Mike Ward, another Ogden employee, were catering a flight. Sanders began lifting the truck before he had closed the rear door, using the lifting switch located at the rear of the truck rather than the deadman switch located at the front of the truck. As Sanders attempted to close the rear door it jammed, but he continued to raise the truck. The aircraft and the truck were misaligned and as a result the truck struck the aircraft, puncturing its fuselage. Sanders described the incident in this manner in the accident report made after the incident.

Ogden suspended and then terminated Sanders. The company took no action against the other employee, who is white. Sanders complained to the Union and the Union took his complaint to the board of adjustment. At the board of adjustment meeting Sanders testified according to the above description of the event and Ogden introduced evidence demonstrating that his actions violated established safety procedures. The Union then made a determination that Sanders termination was proper and refused to pursue his grievance to arbitration.

III. ANALYSIS

1. STANDARD FOR SUMMARY JUDGMENT

Ogden and the Union have moved for summary judgment on Sanders's claims. A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a reasonable jury to find by a preponderance of the evidence in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The moving party has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). The non-moving party has the burden of "showing that there is a genuine issue for trial" by presenting specific facts beyond the pleadings. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. If the non-moving party fails to make a sufficient showing on an essential element of its case — on which he has the burden of proof — the moving party is entitled to a summary judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. However, in deciding a motion for summary judgment, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Accordingly, it is not the function of this court to weigh the evidence, or engage in credibility determinations. Id.

2. SANDERS'S CLAIM THAT HIS DISMISSAL BY OGDEN WAS RACIAL DISCRIMINATION IN VIOLATION OF TITLE VII UNDER A THEORY OF DISPARATE TREATMENT

Sanders has alleged:

Defendant Ogden discharged Plaintiff using alleged misconduct as a pretext to cover acts of racial discrimination in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000(e)-(2)(a)(1) and that the real reason Plaintiff was discharged was because he is black. Under these facts and circumstances, Plaintiff would not have been discharged if he had been white.

Sanders has asserted a cause of action under the disparate treatment theory of Title VII. Title VII provides:

(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin (emphasis added). 42 U.S.C. § 2000e-2(a)(1) (1981).

The Supreme Court has provided a framework under which a plaintiff may use circumstantial evidence to make a prima facia case of racial discrimination in the hiring context. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).¹ In such cases, the plaintiff carries the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Using that framework in the discriminatory discharge context, a plaintiff must show (i) that he was within the protected class; (ii) that he was doing the job well enough to rule out the possibility that he was fired for inadequate job performance; and (iii) that his employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services or skills. Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1075 (9th Cir.1986) (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir.1979)).

Sanders, who is black, is a member of a protected class. He has failed, however, to make out a prima facie case of racial discrimination under the second prong of the analysis. Ogden has provided deposition testimony stating that Sanders's discharge was for his willful disregard of company safety procedures. Those procedures require that, when catering an airplane, the rear door to the catering truck should be closed before lifting the truck to the airplane.² The procedures also require the employee to lift the truck using a switch located in the part of the vehicle closest to the plane where visibility is greatest. Sanders acknowledged in his deposition that he knew these to be the proper procedures. He also acknowledged that he did not follow these procedures which resulted in the truck puncturing the fuselage of the plane. Sanders cannot negate the possibility that he was fired for inadequate job performance. Because he has failed to make a sufficient showing on an essential element of his case — on which he had the burden of proof — Ogden is entitled to a summary judgment as a matter of law. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

Sanders has alleged that his discharge was a pretext...