Tom Beu Xiong v. Fischer

• Decision Date: 18 May 2015
• Docket Number: No. 14–2587.,14–2587.
• Citation: 787 F.3d 389
• Parties: TOM BEU XIONG, Plaintiff–Appellant, v. Jennifer A. FISCHER, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

787 F.3d 389

TOM BEU XIONG, Plaintiff–Appellant

v.Jennifer A. FISCHER, et al., Defendants–Appellees.

No. 14–2587.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 2014.

Decided May 18, 2015.

Koua Vang, Attorney, Sun Prairie, WI, for Plaintiff–Appellant.

Sheila M. Sullivan, Timothy J. Yanacheck, Attorneys, Bell, Moore & Richter, S.C., Madison, WI, Aaron N. Halstead, Colin B. Good, Attorneys, Hawks Quindel, S.C, Madison, WI, for Defendants–Appellees.

Before BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge.^*

Opinion

BAUER, Circuit Judge.

Plaintiff-appellant, Tom Beu Xiong (“Xiong”), is a former employee of defendant-appellee, Dane County Department of Human Services (“the Department”), and former member of the defendant-appellee, Dane County Professional Social Workers, Local 2634, AFSCME, AFL–CIO (“the Union”). Xiong appeals the dismissal of his claims of breach of duty of fair representation against the Union and breach of collective bargaining agreement against the Department, as well as various constitutional claims against Xiong's supervisor, Jennifer Fischer (“Fischer”), the Union, and the Department (collectively “the defendants”). We affirm.

I. BACKGROUND

This case arises out of the defendants' behavior toward Xiong before and after he was terminated from his job as a senior clinical social worker. Xiong began working for the Department as a social worker in 1990, serving primarily the elderly and physically disabled individuals. As a member of the Union, he was covered by a collective bargaining agreement (“CBA”) that provided, among other things, that the Union would assist and represent employees throughout the pre-disciplinary, grievance, and termination processes.

In May 2012, Xiong's supervisor, Fischer, learned that Xiong had committed significant work rule violations. Notably, Fischer discovered that Xiong had forged her signature on a number of documents, called in sick to work after Fischer had explicitly denied his requests to be excused, failed to meet deadlines or complete paperwork related to an upcoming audit, attended divorce proceedings during work time without authorization, and moved a client from one family home to another without completing the required paperwork. As a result, Fischer sent a letter to Xiong on May 22, 2012, indicating that she had concerns related to his employment and requesting his presence at a pre-disciplinary meeting scheduled for May 24, 2012. The letter identified six areas of concern and nine work rules that Fischer believed Xiong had broken. Fischer also informed Xiong that, due to the nature of the concerns and potential violations, he would have an opportunity to respond to the allegations against him and to have a representative from the Union present at the meeting. Fischer sent copies of the letter to her supervisors, including Theresa Sanders (“Sanders”), Fran Genter (“Genter”), and the Director of the Department, Lynn Green (“Green”), as well as the President of the Union, Kate Gravel (“Gravel”).

Having taken unauthorized leave on May 22 and 23, Xiong did not receive Fischer's letter until he arrived at work on May 24. However, he discussed the letter's accusations with Gravel by phone on May 23 and informed her that he wished to have a Union representative present at the pre-disciplinary meeting. On May 24, 2012, Xiong attended the pre-disciplinary meeting accompanied by his union steward, Sue DeBuhr (“DeBuhr”), at which Fischer and Sanders laid out their concerns with Xiong's behavior. When given the opportunity to respond, Xiong admitted to each of the allegations against him. Fischer also discussed Xiong's recent failure to pass the 2012 Long Term Care Functional Screen Test, passage of which was required to maintain Xiong's certification as a social worker. Xiong had taken the test in March 2012 and received a failing score of 67 percent. Green had contacted the Wisconsin Department of Health Services (“DHS”) after learning of Xiong's failing score and asked DHS to permit Xiong to complete a plan of correction. DHS denied Green's request on May 10, 2012, citing a new policy established by the state that prohibited individuals who scored less than 70 percent on the functional screen test from taking remedial measures. Consequently, by the time of his pre-disciplinary meeting on May 24, Xiong was no longer certified to perform a substantial part of his work with the Department.

A week after the meeting, Xiong received a letter, signed by Fischer, informing him that he had been terminated. It is undisputed that Fischer did not have the authority under the Dane County Civil Service Ordinance to make the decision to fire Xiong. Rather, this power is held by those who are designated as “appointing authorities” under the ordinance; in this case, that person was Green. Fischer testified at her deposition that she personally consulted with three levels of management prior to delivering Xiong's termination notice: her direct supervisor, Sanders; Sanders' supervisor, Genter; and the Employee Relations department. She also testified that she gave Genter the letter and received his approval before the termination meeting with Xiong. As we will discuss below, it is not clear at which point Green authorized the decision to terminate Xiong, but Green was copied on the letter of termination and Xiong admits that Genter told the Union that the decision to terminate Xiong was made “far above” him.

Under the terms of the CBA between the Union and Dane County (“the County”), employees may only be terminated for good cause. An employee wishing to challenge adverse employment actions may do so by either following the grievance process outlined in the CBA or using the appeals procedure established by the Dane County Civil Service Ordinance. Xiong chose to challenge his termination under the CBA, which sets out a four-step process. At Step 1, the employee and the Union take up the grievance orally with the employee's first line of supervision. If the parties are unable to come to a mutually satisfactory decision, the employee or the Union moves on to the second step of the process. At Step 2, the employee or the Union presents the grievance in writing to the department head—in this case, Green. If the matter is not resolved there, the employee or the Union may advance the grievance to Step 3, which involves presenting the grievance to the County Executive or designee. Finally, if the grievance is not settled at the third step, the Union may take the matter to arbitration. In order for the Union to pursue this fourth step, however, members of the Union's bargaining unit must vote to do so.

After bypassing the first two steps of the grievance procedure, the Union began Xiong's appeal at Step 3 of the process. At a hearing before Travis Myren, the Dane County Chief Administrative Officer and Director of Administration, the Union presented arguments in Xiong's defense and requested that he be suspended, rather than terminated. Myren, citing concerns that Xiong was no longer certified to perform his job duties and finding that his work rule violations represented a “gross violation of trust,” denied the appeal. Faced with the decision of whether to pursue arbitration, the Union board met with Xiong and allowed him to present his side of the grievance once more. Ultimately, the Union board voted unanimously not to arbitrate Xiong's case. After rejecting a severance and benefits offer by the County in exchange for dropping the grievance, Xiong filed the underlying action against the Union, the Department, and Fischer.

At the close of discovery, the parties filed cross motions for summary judgment. As a preliminary matter, the district court noted that Xiong did not follow local court rules. Pursuant to these rules, if a nonmoving party disputes a fact, the nonmoving party must state its own version of the fact and support that version with evidence. See Rule II(D), Procedure to be Followed on Motions for Summary Judgment (W.D. Wis.). Although Xiong listed the defendants' facts that he agreed with, he did not respond to a number of others in accordance with this local rule. The court found that Xiong's non-response to certain proposed findings of fact submitted by the defendants failed to raise a genuine dispute and accepted as undisputed all of the defendants' proposed facts. The district court granted the defendants' motions for summary judgment. This appeal followed.

II. ANALYSIS

Xiong contends that the district court erroneously granted summary judgment in favor of Fischer, the Department, and the Union. We review this grant de novo, viewing all evidence in the light most favorable to the nonmoving party; summary judgment will be upheld if the record reveals “no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Breach of the Duty of Fair Representation

Xiong alleges that the Union failed to fulfill its duty to fairly represent him throughout the grievance process when it bypassed steps 1 and 2 of the grievance process and refused to take his grievance to arbitration. It is well-established that labor unions owe a duty of fair representation to their members. See Clark v. Hein–Werner Corp., 8 Wis.2d 264, 99 N.W.2d 132, 136–37 (1959) (holding that unions have an implied fiduciary duty of fair representation); Mahnke v. Wis. Emp't Relations Comm., 66 Wis.2d 524, 225 N.W.2d 617 (1975) (adopting federal precedent in analyzing claims for breach of the duty of fair representation, as articulated in Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ); Vaca, 386 U.S. at 182, 87 S.Ct. 903 (explaining that the duty of fair representation serves as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress”). However, unions are afforded considerable latitude and a...