GILLESPIE v. ACME MARKETS, INC. et al, No. 1:2014cv07779 - Document 19 (D.N.J. 2016)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 4/25/2016. (TH, )
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GILLESPIE v. ACME MARKETS, INC. et al Doc. 19 1 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY DAWN GILLESPIE, : Plaintiff, : : v. ACME MARKETS, INC. and UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1360 , Defendant. Hon. J oseph H. Rodriguez Civil Action No. 14-7779 : OPIN ION : : These m atters com e before the Court on Defendants’ separate Motions for Sum m ary J udgm ent, both filed pursuant to Federal Rule of Civil Procedure 56. The Court has considered the subm issions of the m oving parties, Defendant United Food and Com m ercial Workers and Defendant Acm e Markets, Inc.1 For the reasons that follow, Defendants’ m otions for sum m ary judgm ent are granted. I. Backgro u n d Plaintiff Dawn Gillespie brings this action individually. The Com plaint alleges claim s of wrongful term ination and breach of contract against Defendants Acm e Markets, Inc. (“Acm e”) and United Food and Com m ercial Workers, Local 1360 (“Local 1360 ”) (Count I) and a claim of breach of contract and breach of fiduciary duty against Plaintiff failed to timely file an opposition. The present motions were filed by Defendant United Food and Commercial Workers on November 20, 2015 and by Defendant Acme Markets, Inc. on November 25, 2016. Opposition was due on December 7, 2015. Plaintiff improperly filed a L. R. Civ. P. 7.1 (d) (5) automatic extension on December 21, 2015, after the opposition was due. No opposition papers have been submitted by Plaintiff and the Court considers the motions as unopposed. This is not the first time Plaintiff has failed to respond. See Dkt. No. 9. 1 1 Dockets.Justia.com 2 Local 1360 (Count II) 2 . The Com plaint contains vague factual allegations, but relates to Gillespie’s discharge from Acm e as a full tim e cashier following allegations that she stole m oney from her cash register. Gillespie is a m em ber of Local 1360 and the union filed a tim ely grievance on her behalf following the term ination. The parties went to arbitration and on Novem ber 2, 20 13, the arbitrator issued a written decision awarding Gillespie reinstatem ent without loss of seniority and with full back pay. See Decl. Dosenbach, Ex. 1, ¶ 4. Plaintiff then hired an attorney. See Michalowski Aff., Ex. A. at ¶13. It appears that Gillespie has not been reinstated because, according to Acm e, she has not presented proof that she is m edically fit to work. Acm e subm its a note, dated J anuary 14, 20 14, from Dr. Andrew Cogan that states that Gillespie was unable to return to work and that she has been unable to work since Septem ber, 20 12. See Decl. Dosenbach, Ex. 1, ¶ 9. Acm e claim s that Gillespie has never provided a letter which m edically clears her for work. Acm e also attaches court records from the Superior Court of New J ersey which detail the procedural history of this case and includes Plaintiff’s previous failed attem pts to pursue litigation in the state courts on the present claim s. Id., Ex. 2.3 Acm e claim s that the com plete arbitration rule announced in Union Switch & Signal Div. Am . Standard Inc. v. United Elec., Radio and Machine Workers of Am ., Local 610 , 90 0 F.2d 60 8 (3d Cir. 1990 ) requires that arbitration be fully exhausted before 2 Count II is titled “Union’s Breach of Contract and Fiduciary Duty.” See Com plaint, ¶11. As such, the Court construes this claim as against only Local 1360 . 3 The Third Circuit has held that a court hearing a m otion to dism iss m ay take judicial notice of a judgm ent in another case but not the facts therein. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410 , 413 (3d Cir. 1999); see also Brody v. Hankin, 145 F. App'x 768, 772 (3d Cir. 20 0 5). 2 3 jurisdiction lays in the district court. Here, although styled as a breach of contract action, Acm e argues that Plaintiff’s com plaint seeks to im properly im plem ent the arbitration award. Ostensibly, the breach relates to Acm e’s failure to reinstate Gillespie and com ply with the arbitrator’s award. The arbitrator, in his written decision, retained jurisdiction over the im plem entation of the rem edy. See Acm e Ex. 1. For this reason, and because this is Plaintiff’s second attem pt to bypass the arbitral process, Acm e seeks dism issal and an award of attorney’s fees. Acm e argues Gillespie’s claim should be presented to the arbitrator. The Court agrees. Local 1360 m oves for sum m ary judgm ent on the ground that Plaintiff’s claim s are tim e-barred. Although styled as a breach of contract and a breach of fiduciary duty claim , Local 1360 argues that Gillespie’s claim s m ust be considered as a “hybrid Section 30 1/ Duty of Fair Representation Claim ” arising out of both Section 30 1 of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 185 and the judicially created doctrine of the union’s Duty of Fair Representation. Vaca v. Spies, 386 U.S. 171, 178-9, n. 3 (1967). A claim that a union breached the duty of fair representation m ust be bought no later than six m onths from the date upon which the plaintiff knew or reasonably should have known of the union’s alleged breach. Hersh v. Allen Prods. Co., 789 F.2d 230 , 232 (3d Cir. 1986). Under the facts of this case, Local 1360 argues that Plaintiff’s claim is tim ebarred. In support, Local 1360 attaches two letter exhibits to dem onstrate that Plaintiff knew or should have known about its intention to no longer pursue her claim . See Ex. A., Michalowski Aff., ¶ 14, Feb. 14, 20 14; Ex. B., J an. 15, 20 14 Letter. Local 1360 also claim s that there are no facts that support tolling the lim itations period and, therefore, Gillespie’s claim is tim e-barred. The Court agrees. 3 4 II. Su m m ary Ju d gm e n t Stan d ard Federal Rule of Civil Procedure 56(a) generally provides that the “court shall grant sum m ary judgm ent if the m ovant shows that there is no genuine dispute as to any m aterial fact” such that the m ovant is “entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). Such a showing m ust be supported by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). A “genuine” dispute of “m aterial” fact exists where a reasonable jury’s review of the evidence could result in “a verdict for the non-m oving party” or where such fact m ight otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, will fail to preclude the entry of sum m ary judgm ent. Id. In evaluating a m otion for sum m ary judgm ent, the court m ust view the evidence in the light m ost favorable to the non-m oving party, and m ust provide that party the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (20 0 7); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 20 14). Any such inferences “m ust flow directly from adm issible evidence[,]” because “‘an inference based upon [ ] speculation or conjecture does not create a m aterial factual dispute sufficient to defeat sum m ary judgm ent.’” Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360 , 382 n.12 (3d Cir. 1990 ) (citing Anderson, 477 U.S. at 255)). Accordingly, the m oving party initially has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the non-m oving party m ust identify, 4 5 by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Again, to withstand a properly supported m otion for sum m ary judgm ent, the non-m oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statem ents . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The m ovant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 5 6 III. An alys is Defendants’ m otions for sum m ary judgm ent are granted. The com plete arbitration rule favors dism issal of Plaintiff’s claim s in favor of arbitration. Arbitrator De Truex explicitly retained jurisdiction over the im plem entation of Plaintiff’s reinstatem ent award and Plaintiff’s present claim s fall within the arbitrator’s purview. In addition, Local 1360 ’s m otion for sum m ary judgm ent is granted because Plaintiff’s claim s sound in federal law and are tim e barred by the applicable statute of lim itations. Alternatively, sum m ary judgm ent is granted as to Plaintiff’s breach of contract claim because there is no evidence in the record that Local 1360 breached its contract with Plaintiff. A. Acm e Marke t’s Mo tio n fo r Su m m ary Ju d gm e n t The com plete arbitration rule com pels this Court to dism iss Plaintiff’s case because the arbitrator m aintained jurisdiction over im plem entation of the award and the award is, therefore, not com plete. The com plete arbitration rule is a prudential lim it on a court’s jurisdiction. Many courts have declined to “a labor arbitrator's decision under Section 30 1 until the arbitrator has ruled on both liability and rem edies[.]” Peabody Holding Co., LLC v. United Mine Workers of Am ., Int'l Union, Unincorporated Ass'n, No. 14-20 32, 20 16 WL 8780 0 2, at *3 (4th Cir. Mar. 8, 20 16) (citing Local 36, Sheet Metal Workers Int'l Ass'n v. Pevely Sheet Metal Co., 951 F.2d 947, 949– 50 (8th Cir. 1992); Union Switch & Signal Div. Am . Standard Inc. v. United Elec. Workers, Local 610 , 90 0 F.2d 60 8, 612– 14 (3d Cir. 1990 ); Millm en Local 550 , United Bhd. of Carpenters v. Wells Exterior Trim , 828 F.2d 1373, 1375– 76 (9th Cir. 1987)). The Third Circuit’s application of the rule is spelled out in United Elec. Workers, Local 610 and provides, generally, that although this Court’s jurisdiction under § 30 1 is not necessarily lim ited by the absence of a final decision by Arbitrator De Truex, 6 7 prudential lim itations favoring a “necessity for an arbitration to be com plete before a section 30 1 action is entertained so that a prem ature action will be discouraged or, if brought, will be m et with a m otion to dism iss.” United Elec., Radio & Mach. Workers of Am ., Local 610 , 90 0 F.2d at 614. Here, Arbitrator De Treux issued a decision on Novem ber 2, 20 13 which reinstated Plaintiff with full back pay and no loss of seniority. See Dosenbach Decl., ¶ 6-7. Arrangem ents were m ade for Plaintiff to return to work, but on her anticipated first day back at work on J anuary 14, 20 14, Plaintiff’s husband arrived with a m edical note excusing Plaintiff from work with a request for leave of absence paperwork. Id. at ¶ 9; see also Aff. of Peg Michalowski, Exhibit A at ¶4. On J anuary 15, 20 14, Union Secretary-Treasurer/ Servicing Director Peg Michalowski (“Michalowski”) attem pted to contact Plaintiff by telephone to notify her that Local 1360 was working to enforce the arbitration award, but the union required additional inform ation from Gillespie to facilitate the enforcem ent. See Dosenbach Decl,¶ 11. After Acm e determ ined Plaintiff was not eligible for Fam ily Medical Leave, it sent her a general leave application. Id.at¶ 12. Currently, Plaintiff rem ains on general leave status at Acm e until Plaintiff produces a note from her doctor clearing her to work. Id. at ¶ 13. Acm e rem ains willing to have Arbitrator De Truex resolve the present issues. The record reflects that although Plaintiff has yet to subm it any m edical docum entation, she hired an attorney and initiated suit against Acm e in the Superior Court of New J ersey. Id.; see also Com pl., Ex. 2. The Superior Court of New J ersey dism issed the com plaint on the ground that the parties “agree that the arbitrator in this case has retained jurisdiction.” See Exs. 2-4 (Hearing Transcript and May 2 Order). The com plete arbitration rule com pels this Court to do the sam e. Plaintiff’s action here, although styled as a breach of contract action, ask this Court to either re-litigate the 7 8 arbitration and/ or determ ine the im plem entation of the dam ages portion of the arbitrator’s award against a post-arbitration factual backdrop. Such a determ ination rem ains within the jurisdiction of the arbitrator and, pursuant to the com plete arbitration rule, this m atter will be dism issed. United Elec., Radio & Mach. Workers of Am ., Local 610 , 90 0 F.2d at 614. Defendant Acm e’s m otion for sum m ary judgm ent is granted. The Court will perm it Acm e to subm it a form al m otion regarding its request for attorney’s fees. Acm e’s subm ission should include docum entation related to the calculation of fees in support of its m otion. B. Lo cal 13 6 0 ’s Mo tio n fo r Su m m ary Ju d gm e n t Defendant Local 1360 argues that Plaintiff’s breach of fiduciary duty claim is tim e barred under the six-m onth statute of lim itations and that because Plaintiff’s state law claim for breach of contract relies on the sam e facts as her breach of fiduciary duty claim , the breach of contract claim is pre-em pted by federal law and, therefore, also tim e-barred. The Court agrees. Plaintiff’s Com plaint sets forth a claim against Local 1360 on grounds that it failed to take representative action on Plaintiff’s behalf. Com pl., ¶¶ 13-14. In addition, Local 1360 ’s failure “forced Plaintiff to hire and com pensate private counsel to file an action to enforce the Arbitrator’s decision.” Id. at ¶ 15. Although Plaintiff captions this claim as a breach of fiduciary duty and a breach of contract, Plaintiff’s claim s are properly construed as a breach of the statutory duty of fair representation. See 29 U.S.C. §§ 158 (b) & 159 (a); Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65 (1991). “The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrim ination by unions certified as exclusive bargaining 8 9 representatives under the Railway Labor Act[.]” Vaca, 386 U.S. at 178-9, n. 3; Air Line Pilots Ass’n Int’l, 499 U.S. at 76. Plaintiff’s com plaint avers that the Union failed to negotiate on Plaintiff’s behalf and/ or take steps to enforce the arbitrator’s decision. Com pl., ¶¶ 13-14. A unions duty of fair representation applies to “challenges leveled not only at a union's contract adm inistration and enforcem ent efforts but at its negotiation activities as well.” Air Line Pilots Ass'n, Int'l, 499 U.S. at 77 (quoting Com m unications Workers v. Beck, 487 U.S. 735, 743, 10 8 S.Ct. 2641, 2647, 10 1 L.Ed.2d 634 (1988) (internal citation om itted)). As a result, although styled as state law claim s, Plaintiff’s com plaint “allege[s] a breach by the Union of a duty grounded in federal statutes, and . . . federal law therefore governs [t]his cause of action.” Vaca, 386 U.S. at 177. Thus, Plaintiff’s claim is actually a hybrid Section 30 1/ Duty of Fair Representation claim because it alleges that “the process of collective bargaining has broken down.” United Steelworkers v. Crown Cork & Seal Co., 32 F.3d 53, 58 (3d Cir. 1994). Hybrid Section 30 1/ Duty of Fair representation claim s are “subject to a sixm onth statute of lim itations period.” DelCostello v. Int’l Brotherhood of Team sters, 462 U.S. 151, 172. The lim itations period begins to run “when the claim ant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.” Vadino v. A. Valey Engineers, 90 3 F.2d 253, 260 (3d Cir. 1990 ). Plaintiff’s com plaint is vague as to the date of the alleged breach. See Com pl. at ¶14. However, Local 1360 sent a letter to Plaintiff nine m onths prior to the initiation of this action in which Local 1360 advised that it no longer intended to pursue resolution of Plaintiff’s arbitration award. See Ex. A., Michalowski Aff., ¶ 14, Feb. 14, 20 14; Ex. B., J an. 15, 20 14 Letter. This evidence supports a conclusion that Plaintiff knew or should 9 10 have known that her cause of action accrued on February 18, 20 14. Plaintiff has not filed opposition and there is no evidence in the record to refute Local 1360 ’s claim that Plaintiff’s cause of action accrued at least seven m onths prior to the com m encem ent of this action in the Superior Court of New J ersey Septem ber 26, 20 14. 4 Likewise, there is no evidence in the record to suggest that the lim itations period should be tolled. See Podobnik v. U.S. Postal Serv., 40 9 F.3d 584, 593 (3d Cir. 20 0 5). As a result, Plaintiff’s claim for breach of fiduciary duty is dism issed as tim e-barred. Plaintiff’s claim for breach of contract relies on the sam e factual predicate as the breach of the fiduciary duty and concerns Local 1360 ’s lack of representation of Plaintiff. This claim is preem pted by federal law and is, therefore, tim e-barred. See J ohnson v. United Food and Com m ercial Workers, Int’l Union Local No. 23, 828 F.2d 961, 967 (3d Cir. 1987) (state law claim s styled as tort or breach of contract claim s that concern a union’s duty of fair representation are preem pted). Alternatively, the record reflects that Local 1360 Union successfully aggrieved and arbitrated Plaintiff’s claim . There is no evidence dem onstrating that Plaintiff has pursued reinstatem ent or presented any evidence that she is m edically cleared for reinstatem ent. Likewise, there is no evidence that Plaintiff has attem pted resolution of the present m atter through arbitration. Despite an offer to work in a position at one of the Acm e stores Gillespie listed as an acceptable work relocation, Local 1360 contends that Plaintiff either refused placem ent or is m edically unable to accept re-em ploym ent. See Michalowski Aff., Ex. A, ¶10 . On February 13, 20 14, Michalowski was notified by Defendant Acm e’s Vice Plaintiff filed a complaint in the Superior Court of New Jersey on September 26, 2014. That complaint was never served on the Defendants. Then, on October 8, 2014, Plaintiff filed an amended complaint; Defendant Local 1360 was served on November 21, 2014. The matter was removed on December 12, 2014. 4 10 11 President of Hum an Resources & Labor Relations, Dan Dosenbach, that Gillespie was m edically unable to work, that Acm e believed that it no longer had an obligation to provide Gillespie with any of the back pay award because of Dr. Cogan’s J anuary 14, 20 14 note excusing her from work and noting that Gillespie has been unable to work as of Septem ber 20 12. See Ex. C, Feb.13, 20 14, e-m ail from Daniel R. Dosenbach to Peg Michalowski; see also Ex. A at ¶¶ 11-12; Ex. D. Plaintiff then hired an attorney. See Ex. A. at ¶13. Plaintiff’s counsel was notified by way of letter dated February 18, 20 14, that Local 1360 abandoned its representation of Plaintiff in m atters related to her term ination from Defendant Acm e. See Ex. E., Letter from Peg Michalowski to Christopher Maganello dated February 18, 20 14; Ex. A at ¶14; Ex. B at ¶12. Plaintiff was copied on this letter. See Exs. E and A at ¶15. Plaintiff eventually filed suit in the Superior Court of New J ersey. She has not been reinstated and the record is devoid of any evidence suggesting that the failure to reinstate Plaintiff is the result of a breach of contract by Local 1360 . Rather, the present record reflects a failure of Plaintiff to subm it a m edical note clearing her for work as the reason she rem ains unem ployed. As a result, even if Plaintiff’s breach of contract claim is not preem pted by federal law, sum m ary judgm ent is granted as to Plaintiff’s breach of contract claim . IV. Co n clu s io n For the reasons stated above, Defendants’ m otions for sum m ary judgm ent are granted. The Court will entertain a separate m otion from Acm e for attorneys’ fees. Dated: April 25, 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 11
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