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Mvuri v. American Airlines, Inc.

United States District Court, E.D. Virginia, Alexandria Division

September 11, 2019

DILLON MVURI,
v.
AMERICAN AIRLINES, INC., et al.

          MEMORANDUM OPINION

          T. S. Ellis, III, United States Distinct Judge

         Pro 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 and argued.

         For the 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 against plaintiff.

         I.

         A.

         As an 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).

         Although the Union and American substantially complied with both the Local Rule and the Rule 16(b) Scheduling Order, [1] plaintiff did not do so. Plaintiffs cross-motions for summary judgment and opposition to defendants' motions failed to comply with the Local Rule.[2] 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. 2012) (same).

         Additionally, 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 admitted.

         B.

         As a 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 record evidence.

         1. 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.

         2. 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.

         3. 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 handling.

         4. The 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.

         5. 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.

         6. 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 system.[3]

         7. The 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 cause;
c. the "written decision of the Customer Service Director shall be issued within ten (10) days of the hearing";
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 days.

See DeForest Gaskins Decl., Exh. A, CBA, Art. 20(B), (E) and (F).

         8. The time limits for filing grievances are strictly construed. See CBA, Art. 20(G). Specifically, Article 20(G) provides:

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 consideration."

         9. 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.

         10. 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.

         11. Joseph Turay is employed by American. During plaintiffs employment with American, Turay was a Shop Steward for the Union.

         12. 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.

         13. 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.

         14. In 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.

         15. There are multiple ways that FSAs can access their specific assignments after checking in for work. Assignments are posted on an employee portal ("Workbrain")[4] 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.

         16. During his employment, plaintiff received several warnings and disciplinary notices.

         17. On October 15, 2013, an American supervisor engaged in a coaching or counseling session[5]with 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.

         18. On 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.

         19. On 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.

         20. On 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.

         21. On 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.

         22. On 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 warning.[6]

         23. On 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.

         24. 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 elsewhere.

         25. At 9:00 a.m. plaintiff learned that he was scheduled to work on ...


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