United States District Court, E.D. Virginia, Alexandria Division
Ellis, III, United States Distinct Judge
se plaintiff Dillon Mvuri, a member of the International
Association of Machinists and Aerospace Workers (the
"Union") and a former employee of American Airlines
("American"), is suing the Union for breach of the
duty of fair representation and American for breach of the
collective bargaining agreement after he was terminated from
his position as a baggage handler on January 30, 2017.
American and the Union have filed motions for summary
judgment, arguing that plaintiffs claims are time-barred and,
in any event, also fail on the merits. Plaintiff filed
oppositions to defendants' motions for summary judgment
as well as his own cross-motions for summary judgment against
each defendant. All of these motions have been fully briefed
reasons that follow, American and the Union are correct that
plaintiffs claims are time-barred. In any event, even
assuming plaintiffs claims are not time-barred, his claims
nevertheless fail on the merits. Accordingly, summary
judgment must issue in favor of the Union and American and
initial matter, it is necessary to be clear as to the content
of the summary judgment factual record. In this regard, it is
necessary to address whether the parties have complied with
the requirements for presenting a summary judgment motion as
set forth in Local Rule 56 and the Rule 16(b) Scheduling
Order inasmuch as a party's compliance or noncompliance
with the Local Rule and the Order defines the content of the
summary judgment record. Pursuant to Local Rule 56(B) and the
Rule 16(b) Scheduling Order, a motion for summary judgment
must contain a separately captioned section listing, in
numbered paragraph form, all material facts that the movant
contends are not genuinely disputed. See Rule 56,
Local Civ. R.; Rule 16(b) Scheduling Order (Dkt. 32). The
nonmovant must then respond to each numbered paragraph
indicating whether or not the nonmovant disputes the asserted
fact and, if the nonmovant disputes an asserted fact, the
nonmovant must cite to the legally admissible evidence in the
record supporting the dispute. Failure to respond in this
fashion means that the asserted fact will be taken as
admitted. Similarly, it is not sufficient when disputing a
fact for a nonmovant to provide a narrative without citation
to the record. Such a response will result in the fact being
deemed admitted. See Integrated Direct Marketing, LLC v.
May, 129 F.Supp.3d 336, 345 (E.D. Va.2015).
the Union and American substantially complied with both the
Local Rule and the Rule 16(b) Scheduling Order,
plaintiff did not do so. Plaintiffs cross-motions for summary
judgment and opposition to defendants' motions failed to
comply with the Local Rule. Specifically, plaintiff does not
cite to any portion of the record when setting forth his own
statements of undisputed facts in support of his cross
motions for summary judgment against both American and the
Union. See Pl. American Opp'n at 8-9; Pl. Union
Opp'n at 5-6. Additionally, although plaintiff admits
that he "agrees with" 12 of American's 47
undisputed facts and 10 of the Union's 43 undisputed
facts, he did not clearly and specifically respond to the
remaining 35 facts asserted by American or the remaining 33
facts asserted by the Union. Instead, plaintiff stated his
"disagreement" with those remaining 68 facts and
often submitted his own narrative response explaining his
disagreement without citation to any portion of the record.
See Integrated Direct Marketing, 129 F.Supp.3d at
345 (a party's "narrative version of its own
interpretation of the facts fails to comply with Local Civil
Rule 56(B)"). Moreover, by failing to provide citations
to the record, plaintiff fails effectively to dispute the
facts as set forth by American and the Union. Accordingly, in
these circumstances, "a district court is free, in the
exercise of its sound discretion, to accept the moving
party's facts as stated." Caban Hernandez v.
Phillip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007);
Foglia v. Clapper, 885 F.Supp.2d 821, 823 (E.D. Va.
plaintiff has submitted his own affidavit in support of his
cross-motions for summary judgment and in opposition to
defendants' motions for summary judgment. Nowhere in his
briefs, however, does plaintiff cite to, or purport to rely,
on his affidavit. Moreover, the affidavit, at times,
contradicts plaintiffs sworn deposition testimony. To address
those contradictions, plaintiff simply denies that his
deposition testimony is accurate. See Pl. Union
Opp'n at 11 ("The transcript of Plaintiff s
deposition is completely wrong and inaccurate in that
regard."). Courts have uniformly and sensibly held that
a party cannot create a disputed issue of fact by submitting
an affidavit that contradicts a party's prior deposition
testimony. See, e.g., In re Family Dollar FLSA
Litig, 637 F.3d 508, 512 (4th Cir. 2011) (a party
"cannot create a dispute about a fact that is contained
in deposition testimony by referring to a subsequent
affidavit of the deponent"). Courts have also rejected
attempts by parties to recant their deposition testimony.
See Margo v. Weiss, 213 F.3d 55, 61 (2d Cir. 2000).
Rule 30(e) of the Federal Rules of Civil Procedure provides
that a deponent has the opportunity to review a deposition
transcript for error. If plaintiff failed to do so carefully
or waived the right to review the transcript, plaintiff
cannot now "conjure up a triable issue of fact" by
disputing the accuracy of his transcribed testimony.
Margo, 213 F.3d at 61. Essentially, plaintiff
attempts to "conjure up" a disputed fact here by
disputing his prior testimony. Id. He cannot do so,
and therefore the asserted fact is properly taken as
result, the statement of undisputed material facts listed
below is substantially based on the defendants'
statements of undisputed facts. As for plaintiffs alternative
narrative of facts, that narrative has been scoured for facts
that might be viewed as in conflict with the facts stated
here; where such disputes exist, the plaintiffs facts are, as
noted below, either immaterial or not supported by admissible
Plaintiff holds a bachelor's degree in Politics and
Administration from the University of Zimbabwe and has an MBA
from the University of Maryland University College.
Plaintiff has extensive experience in human resources and
labor relations, including participating in the adjudication
of hundreds of cases involving collective bargaining
agreements as a Principal Labor Officer in the Zimbabwe
Ministry of Labor.
American (and its predecessor U.S. Airways) employed
plaintiff as a Fleet Service Agent ("FSA") from
2012 to 2017 at Ronald Reagan Washington National Airport
("National Airport"), which included baggage
Union is a labor organization which represents employees in
the aerospace, transportation, automotive, and defense
industries. The Union is the certified collective bargaining
representative of American's Fleet Service Employees.
During plaintiffs employment with American, he was
represented by the Union for collective bargaining purposes
and the terms and conditions of his employment were governed
by both a collective bargaining agreement (the
"CBA") and American's Rules of Conduct.
Although American, on some occasions follows a progressive
discipline policy, neither the CBA nor the Rules of Conduct
require that American follow a progressive discipline
CBA sets forth the following multi-step grievance process for
employees to contest a discharge:
a. "the affected employee through the Local Committee,
shall file his initial grievance with the Customer Service
Director within seven (7) days of the discharge";
b. the "Customer Service Director shall schedule a
hearing on the discharge grievance within ten (10) days of
the filing of the grievance" and the hearing officer
will determine whether the employee was discharged for just
c. the "written decision of the Customer Service
Director shall be issued within ten (10) days of the
d. that "decision may be appealed with or through the
Assistant General Chairman or his designee within fourteen
(14) days"; and
e. the Assistant General Chairman's decision may then be
appealed to the Systems Board of Arbitration within thirty
See DeForest Gaskins Decl., Exh. A, CBA, Art. 20(B),
(E) and (F).
time limits for filing grievances are strictly construed.
See CBA, Art. 20(G). Specifically, Article 20(G)
a. "The time limits set forth in this Article may only
be waived by mutual, written agreement of the parties."
b. "Failure of the employee or his Union representatives
to comply with any of the prescribed time limits will
withdraw any such grievances from further
American's Rules of Conduct provide that employees must
"report for work on time" and "remain in the
area necessary for the efficient performance of your
work." Decl. of Raziya Brumfield, Exh. D, Rules of
Conduct at 1.
American's Rules of Conduct further provide that
"[s]ome violations of our Guiding Principles and Rules
of Conduct will result in immediate termination." Rules
of Conduct at 2.
Joseph Turay is employed by American. During plaintiffs
employment with American, Turay was a Shop Steward for the
Plaintiff has known Turay since he started working for
American in 2012. Plaintiff described his relationship with
Turay as "normal," agreed that it was
"friendly," and denied perceiving any hostility
from Turay. American Exh. 1, Mvuri Depo. I Tr. at 37.
Plaintiff would also consult with Turay when he needed
assistance in dealing with American.
Depending on the shift he worked, plaintiffs responsibilities
as an FSA included: (i) working on teams with two or three
other FSAs loading and unloading passenger baggage; (ii)
cleaning the ramp; or (iii) working in the baggage room.
order for American to accomplish the loading and unloading of
customers' checked baggage in a timely manner, FSAs must
be in their assigned flight areas at the appropriate time and
perform their duties efficiently and effectively.
There are multiple ways that FSAs can access their specific
assignments after checking in for work. Assignments are
posted on an employee portal
("Workbrain") and employees can access Workbrain
through a personal phone or by using one of American's
computers at National Airport. Printed assignments are also
posted on the wall in the employee breakrooms and in the bag
room at National Airport. Plaintiff typically carried his
cell phone with him while working.
During his employment, plaintiff received several warnings
and disciplinary notices.
October 15, 2013, an American supervisor engaged in a
coaching or counseling sessionwith plaintiff and issued
plaintiff a written warning after he failed to complete a
mandatory online training. A union representative was present
to advise or assist plaintiff during this session.
March 18, 2015, an American supervisor engaged in a further
coaching or counseling session with plaintiff and issued
plaintiff a written warning for failure to arrive to work an
assigned flight the previous day. In this regard, Shift
Manager Mike Smith cautioned plaintiff:
"When you are at work and on the clock, you must make
yourself available to work your assigned flights. . . . Any
further violation of these policies will result in further
progressive discipline up to and including termination of
your employment." A union representative was present to
advise or assist plaintiff during this session.
April 18, 2015, an American supervisor engaged in yet another
coaching or counseling session with plaintiff and issued
plaintiff a written warning for failing to meet a flight and
leaving his work area without notifying the appropriate
staff. Plaintiff described the incident as insignificant. A
union representative was present to advise or assist
plaintiff during this session.
December 7, 2015, an American supervisor issued a Level 1
written warning to plaintiff for arriving late to his work
assignment. A union representative was present to advise or
assist plaintiff at this meeting.
May 17, 2016, an American supervisor issued a Level 2 written
warning to plaintiff and suspended plaintiff for three days
for not being in his assigned area. Shift Manager Ray Boseman
directed plaintiff to "make immediate and sustained
improvement." A union representative was present to
advise or assist plaintiff during this meeting.
October 28, 2016, American Manager Sterling Swanson
questioned plaintiff concerning whether he failed to arrive
to meet a flight. Although American's records confirm
that Swanson issued plaintiff a Level 3 written warning,
plaintiff denies receiving the Level 3 written
January 6, 2017, plaintiff volunteered to work an overtime
shift the next day from 5:00 a.m. to 10:30 a.m. When
plaintiff reported to work on January 7, 2017, he failed to
see his name on the schedule. Plaintiff did not check
Workbrain or contact a manager to determine where he was
assigned to work.
Plaintiff proceeded to the bag room and checked the schedule
posted there. Plaintiffs name was not on the bag room
schedule. Plaintiff remained in and worked the bag room from
5:00 a.m. to 9:00 a.m. Plaintiff never left the bag room to
check to see if his name on was on a schedule posted
9:00 a.m. plaintiff learned that he was scheduled to work on