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JOHNSON v. HOLWAY

December 6, 2005.

VALDA T. JOHNSON, et al., Plaintiffs,
v.
DAVID HOLWAY, et al., Defendants.



The opinion of the court was delivered by: ELLEN HUVELLE, District Judge

MEMORANDUM OPINION

Plaintiffs Valda T. Johnson, Stuart E. Bernsen and Elizabeth A. Baker are employees of the Pension Benefit Guaranty Corporation ("PBGC"), a federal agency, and former officers of the National Association of Government Employees ("NAGE") Local R3-77, a union representing PBGC's employees. Proceeding pro se,*fn1 they initially filed suit on December 9, 2003, under the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq., to overturn a trusteeship that the national union had imposed on their local. The Court denied plaintiffs' two motions to enjoin the imposition of an emergency trusteeship. See Johnson v. Holway, 329 F. Supp. 2d 12 (D.D.C. 2004). On January 3, 2005, plaintiffs filed an amended complaint against NAGE; David Holway, the union's national president; Stephanie Zaiser, then-trustee of Local R3-77 ("the local"); and Gerald Flynn, a union national vice president who presided at the trusteeship hearings. The amended complaint alleges violations of the LMRDA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as well as defamation. Presently before the Court is defendants' motion for summary judgment on all counts. As explained below, defendants' motion is granted in part and denied in part.

FACTUAL BACKGROUND

  I. History of the Dispute Between Plaintiffs and NAGE

  According to plaintiffs, the long and tortured history of their dispute with the national union begins with the National Association of Government Employees' national convention in September 2002. (Pls.' Opp'n at 2-3.) While in attendance as the elected representative of Local R3-77, plaintiff Bernsen expressed his disagreement with defendant Holway — then a candidate for the NAGE presidency — and members of the union's national leadership. (Id.) In a meeting of all assembled delegates, Bernsen declared that NAGE had failed to pay his local the full amount owed under a provision of the national union's constitution that channeled $30.00 of each member's annual dues to the member's local union. (Bernsen Decl. Ex. 5 at 167.) He proceeded to argue that the NAGE Constitution should be amended to provide for local allotments of $48.00 per member per year — an increase three times greater than that proposed by candidate Holway — in order to "make sure the local can pay for arbitrations." (Id. at 166-69.) Bernsen's remarks drew applause, and he was subsequently nominated to join a slate of candidates opposing Holway's bid for the union's national presidency. (Id.; Bernsen Dep. at 223.) After Holway prevailed in the election, Bernsen and other delegates filed a protest contesting the sufficiency of notice given prior to a convention vote selecting thirty members for newly-created executive board positions. (Bernsen Decl. Ex. 6 at 2.) The Department of Labor investigated the claim and ultimately filed a complaint against NAGE and its parent union, the Service Employee's International Union ("SEIU"), on August 8, 2003. (Id.)

  In the months following the national convention, NAGE officials received word that Local R3-77 was failing to meet financial obligations resulting from its arbitration of discrimination claims against PBGC. (Holway Decl. ¶ 6; Holway Decl. Exs. 2-3). In a November 11, 2002 letter to NAGE Chief Counsel Richard L. Barry, Arbitrator Roger Kaplan stated that the local had long failed to pay its share of an arbitration bill and warned that "unless [he] receive[d] the outstanding $3,500 . . . by Friday, November 22, 2002, [he] plan[ned] to sue NAGE Local R3-77, NAGE National and Ms. Valda Johnson and Mr. Stuart Bernsen individually to recover these just and earned fees." (Holway Decl. Ex. 2.) Arbitrator Kaplan also complained of the local's attempt to challenge the amount of the bill, stating that "[n]ever" in his thirty-one year career had he "received a letter as unprofessional as the one [he] received from Mr. Bernsen." (Id.) Chief Counsel Barry immediately wrote plaintiff Valda Johnson, president of Local R3-77, informing her that the local's dispute with Kaplan was a "very serious matter [that] has an adverse impact on the National and other locals of this Union." (Id.) In July of the following year, national officials received a statement from another arbitrator indicating that Local R3-77 had again failed to pay its share of arbitration costs. (Holway Decl. ¶ 6; Holway Decl. Ex. 3.)

  During the same period, Johnson, Bernsen and Baker, in their capacities as the President, Executive Vice President and Secretary of Local R3-77, respectively, expressed mounting frustration with the failure of the national's leadership to assist them in their arbitrations against PBGC. Since first taking office in 1999, plaintiffs had been vigorous in their pursuit of members' employment discrimination claims against the agency. (Bernsen Decl. Exs. 1 and 4; Johnson Dep. at 199-200; Pls.' Opp'n at 4-5.) They claimed several successes, including a number of EEO settlements and an arbitrator's ruling that PBGC's EEO grievance procedure was not fully compliant with governing regulations. See Johnson, 329 F. Supp. 2d at 16. PBGC had become increasingly hostile to plaintiffs' frequent allegations of discrimination. On June 20, 2001, after Johnson accused an agency manager of having refused to meet with a union official because of the official's race, PGBC Human Resources Department Director Sharon Barbee Fletcher filed an institutional grievance against the local president. (Bernsen Decl. Ex. 1.) Fletcher characterized Johnson's allegation as "outlandish . . . [,] unconscionable and irresponsible," declaring it to be "but the latest of several completely unsupported allegations of racism against the Corporation." (Id. at 2.) Fletcher complained that Johnson and Bernsen had "repeatedly asserted that the Corporation unlawfully discriminates against its employees" though they admitted, "when pressed," that "no third party has ever found that the Corporation has engaged in unlawful discrimination — not the Equal Employment Opportunity Commission, not the Merit Systems Protection Board, not a federal court, and not an arbitrator." (Id.; see also id. (complaining that Local R3-77's March 2000 newsletter "compare[d] [the local's] fight against the Corporation to the Allies' fight against Hitler and Nazi Germany in World War II").) The grievance concluded with three recommended remedies: (1) that Johnson "apologize in writing" to the manager she had accused of discrimination; (2) that "Local R3-77 cease making unsupported allegations of racial discrimination;" and (3) that "before Local R3-77 decides to file a grievance or proceed to arbitration, it obtain a signed certification from a NAGE national representative that the representative has personally investigated the facts and believes the grievance or arbitration request is appropriate under the circumstances." (Id. at 3.) According to plaintiffs, Fletcher posted her June 20, 2001 grievance on bulletin boards throughout PBGC's facility, marking the beginning of the agency's attempt to undermine plaintiffs' leadership of Local R3-77. (See Johnson Dep. Ex. 10. at 59.) In January 2002, PBGC's Executive Director informed Johnson that the local needed a "change in players" if its relations with the agency were to improve. (Johnson Dep. at 108.) Thereafter, Holway's predecessor at NAGE contacted Johnson to argue that Executive Vice President Bernsen was overly litigious and should be removed from the local's leadership. (Id. at 199-200; Pls.' Opp'n at 5-6.)

  NAGE's conduct in the wake of Holway's election convinced plaintiffs that the parent union's loyalty remained with PBGC. (Id.) They openly complained to local members and NAGE officials that the union was providing insufficient legal and financial support for arbitrations despite the local's prior success. (See Bernsen Dec. Ex. 8.) In a January 16, 2002 letter to NAGE Chief Counsel Richard Barry, Bernsen protested the quality of representation members had received from the NAGE attorney assigned to handle the local's cases, indicated that he had been forced to handle much of the local's EEO work himself, and informed the union of six matters in which the local required effective national assistance. (Bernsen Decl. Ex. 4 at 2791-93.) Plaintiffs were dissatisfied with the union's response, complaining that NAGE had refused to provide representation in a number of arbitrations and EEOC hearings even after PBGC's motions for summary judgment in the cases had been denied. (See Pls.' Opp'n at 6; Bernsen Dep. Ex. 2.) Attempts by the local leadership to obtain the $3,048 in allegedly unpaid dues refunds also failed in the months following the national convention, thereby further fueling plaintiffs' disaffection with the national union. (See Johnson Dep. Ex. 24; Bernsen Decl. Ex. 8 at 2-3.) They ultimately concluded that NAGE's new leadership was conspiring with PBGC to derail the local's pursuit of meritorious discrimination claims. (Pls.' Opp'n at 5-6; Johnson Dep. 108-10, 199-200.)

  Plaintiffs were particularly dissatisfied with the national union's handling of an arbitration that Johnson filed against PBGC after its posting of the June 2001 institutional grievance, wherein she alleged discrimination, retaliation and a hostile work environment. (See Pls.' Opp'n at 6.) According to plaintiffs, the NAGE attorneys assigned to Johnson's arbitration — while initially supportive of her case — ultimately attempted to force her into dropping a number of claims regarding denials of promotions on the basis of her race and her engagement in protected activities. (Bernsen Decl. Ex. 8; Johnson Dep. at 21-28; Wasserstein Dep. at 25.) Johnson refused to abandon any portion of her case and chose to proceed with Bernsen as her representative and without the assistance of national union lawyers. (Bernsen Decl. Ex. 53 at 9-10, 26.) When President Holway notified Local R3-77 members by letter that the national union would not be accepting financial responsibility for Johnson's arbitration due to her "request[] that NAGE Attorneys withdraw from the case," Johnson responded with emails declaring that the national union had "never intended to pay for the case I carried to them . . . because they are interested in a `cushiony' relationship with management without having to pay monies on our behalf." (Bernsen Decl. Ex. 10 at 1 (Holway's January 7, 2003 letter); Bernsen Decl. Ex. 8 (Johnson's January 15, 2003 email message to members).)

  On December 13, 2002, subsequent to Johnson's decision to continue her arbitration without national assistance, President Holway and Chief Counsel Barry announced a formal arbitration policy whereby locals were required to submit all arbitrations to NAGE's legal staff for review before obtaining national assistance. (Bernsen Decl. Ex. 10.) Pursuant to this policy, those claims "found to lack merit" through a series of appeals would be denied the national union's legal and financial support. (Id.) This procedure formalized the union's earlier method of determining whether to support an arbitration. According to NAGE counsel Gina Lightfoot-Walker, the national union had previously allowed individual attorneys to determine whether a given arbitration was meritorious and therefore deserving of national support. (Lightfoot-Walker Decl. ¶ 2.) Plaintiffs viewed the policy as an infringement of their local autonomy and a violation of Article IVA of the NAGE Constitution, which left locals with the choice to pursue members' grievances under relevant collective bargaining agreements.

  On May 27, 2003, Johnson filed an unfair labor practice charge against NAGE with the Federal Labor Relations Authority ("FLRA"), complaining that the union had violated its duty of fair representation in its handling of her arbitration and discriminated against her on the basis of her race, color, creed and sex. (Zaiser Decl. Ex. B at 291.) "[C]oncerned that the nature of the charge and the internal strife and dissention that surrounded th[e] matter might cause members of the Local to become concerned about their representation," President Holway wrote to all members of Local R3-77 on June 5, 2003. (Holway Decl. ¶ 7; Zaiser Decl. Ex. B at 2.) Holway provided each member with a copy of Johnson's charge and gave notice of a June 11, 2003 meeting "to discuss the future representation of NAGE with [the] local." (Zaiser Decl. Ex. B at 1.) Holway concluded the letter by stating:
this is an emergency situation that requires me to act to the best of my ability to further the purposes and objectives of this organization and to protect the interests of its membership. NAGE denies these charges and the purpose of this meeting is to ensure that your interests, as a NAGE member, continue to be protected.
(Id.)

  At the June 11 meeting, President Holway expressed his frustration with Johnson's charges. (Bernsen Decl. Ex. 65 at 3.) According to Holway, none of the approximately twenty local members at the meeting shared the concerns voiced in Johnson's charge, but instead, they expressed concern that the local's leadership was failing to provide them with sufficient information about union finances and other matters. (Holway Decl. ¶ 7.) At a later session of the National Executive Committee on July 30, 2003, Holway indicated that Johnson and Bernsen seemed to be "out of control," having filed discrimination charges that he believed to be without merit. (Bernsen Decl. Ex. 17 at 1871.)

  Three weeks after Holway's meeting with members of Local R3-77, NAGE National Executive Vice President James Farley wrote Johnson to request copies of local meeting minutes from the previous year. (Holway Dec. Ex. 4.) Johnson refused to provide the information, arguing that the local's bylaws did not require the distribution of written minutes and, regardless, it would be inappropriate to provide them due to the complaints made about NAGE representation by members at the meetings. (Holway Dec. ¶ 7; Holway Decl. Ex. 5.) In the wake of Johnson's refusal, President Holway learned that three of the local's officials — Vice President-at-Large Robert Perry, and union stewards Jason Wolf and Jason Weyland — had resigned out of frustration with plaintiffs' conduct. (Holway Decl. ¶ 8; Holway Decl. Exs. 6 and 7.) The resigning officials complained that plaintiffs routinely acted secretly and without membership meetings in violation of the bylaws; that plaintiffs did not share information regarding the local's finances and other matters; that plaintiffs retaliated against dissenters through smear campaigns; that plaintiffs had failed to negotiate a collective bargaining agreement for four years due to unapproved FLRA appeals; and that plaintiffs' spending on arbitrations had rendered the local insolvent. (Id.) These complaints were elaborated upon in a July 29, 2003 memorandum from the three former officials and ten other local members, which in turn was forwarded to President Holway on September 4, 2003. (Holway Decl. ¶ 9; Holway Decl. Ex. 8.)

  On September 5, 2003, President Holway wrote members of Local R3-77 to inform them that he had received "a number of complaints" from their ranks and had accordingly appointed NAGE National Representative John Sabulis as a representative and monitor for the purpose of investigating the local and recommending appropriate action. (Holway Decl. ¶ 11; Holway Decl. Ex. 9.) Predictably, the monitor's activities engendered protests by the plaintiffs. According to Bernsen, Sabulis violated the autonomy of Local R3-77 by holding a membership meeting and attempting to exclude him and Johnson. (Bernsen Dep. at 226; Bernsen Decl. Ex. 35.) The monitor's investigation concluded with a November 24, 2003 report outlining a continued failure by the local leadership to disclose information to members and to allow their participation in the union's governance. (Holway Decl. ¶ 12; Holway Decl. Ex. 11.) Based on these representational failures, the Sabulis report recommended the imposition of an emergency trusteeship. (Id.) President Holway received the same recommendation from National Vice President Deborah Ennis, who had assisted Sabulis in the investigation. (Holway Decl. Ex. 13.)

  II. Emergency Trusteeship

  On November 24, 2003, calling upon his authority under Article XII of the NAGE Constitution, President Holway issued an order appointing Stephanie Zaiser as trustee of Local R3-77 and giving her full authority to "take charge and control the affairs" of the body. (Zaiser Decl. at 1; Holway Decl. ¶ 12; Holway Decl. Ex. 15; NAGE Const. Art. XII, § 3.B(i).) In explaining the action, Holway cited the Sabulis report and stated that each of the four conditions justifying the imposition of an emergency trusteeship under Article XII had been found: (1) "Local R3-77, through its misfeasance, malfeasance and non-feasance has failed to meet its duty of fair representation to its members;" (2) "Local R3-77 has failed to meet its financial obligation to the National;" (3) "Local R3-77 has failed in its duty to the membership;" and (4) "Local R3-77 has failed to preserve and protect the assets, failed to meet its legal obligation, and failed in its other duties such that its obligation to its members, the National and the Local itself are not being met." (Holway Decl. Ex. 15 at 1.) The emergency trusteeship order directed members to cooperate with Zaiser and required the local's former officers to "immediately make available to the Trustee . . . all books, records, funds and other property of the Local in their possession and control." (Id.)

  On November 25, 2003, Bernsen filed a complaint against NAGE with the EEOC, claiming that his removal as a union officer by the national constituted retaliation for his having engaged in protected activity. Bernsen filed an amended complaint with the EEOC on March 2, 2004, alleging that NAGE's retaliatory conduct had continued in the months since his initial filing. (Bernsen Decl. Ex. 66.) Johnson also filed an EEOC complaint on April 2, 2004, alleging that NAGE and Holway had retaliated against her for her civil rights activities and discriminated against her on the basis of race and sex. (Johnson Dep. Ex. 9.)

  As a result of the trusteeship, plaintiffs were prohibited from representing local members in pending arbitrations. (Zaiser Decl. at 1.) Trustee Zaiser also requested and received a sixty-day postponement in all pending arbitrations of member grievances, during which time she reviewed the cases and decided how the local should proceed. (Id. at 1.) Zaiser concluded that three of the pending grievances — those of Johnson, Robinette Walters, and Rhonda Baird — did not merit representation by either NAGE or Local R3-77. (Id. at 2.) Each of these members elected to pursue their claims without union assistance. (Id.) Zaiser later granted their requests to be represented in the arbitrations by either Bernsen or Dwayne Jeffers, a former local steward. (Id.) Thereafter, plaintiffs filed this action and moved for a temporary restraining order to enjoin the national union from imposing a trusteeship. The Court denied the motion at a December 16, 2003 hearing, holding that plaintiffs had failed to show that the imposition of the trusteeship was in contravention of the NAGE Constitution or that it had been established in bad faith or for an improper purpose. Johnson v. Holway, No 03-2513 (December 16, 2003 TRO Hearing Transcript).*fn2

  III. Hearing Regarding the Trusteeship

  On December 3, 2003, President Holway mailed notice of a December 22, 2003 hearing to the local membership. (Holway Decl. ¶ 15; Holway Decl. Ex. 16; NAGE Const. Art. XII, § 3.B(iii).) Holway appointed National Vice President Gerald A. Flynn as the hearing officer and informed Local R3-77 members that:
[t]he decision to place the Local Union into trusteeship was based on reports of financial irregularities and a lack of response from the Local to a specific request for information [as well as] a number of complaints from the members of NAGE Local R3-77 claiming that the Local was not responding to requests for information from the membership, had failed to properly file and pursue grievances, had retaliated against members and had failed to meet its duty of fair representation to the membership.
(Id.) He also reiterated the determinations of Sabulis and Ennis that the conditions justifying an emergency trusteeship under Article XII of the NAGE Constitution were satisfied. (Id.) Members were notified of their right to appear, "to answer said charges, to offer defenses and to otherwise dispute that just cause exists for the action taken." (Id.) In a December 11, 2003 letter to the local's membership, Holway stated that the materials on which he had based his emergency trusteeship decision were available for their review at the Washington hearing site. (Holway Decl. ¶ 16; Holway Decl. Ex. 17.)

  The trusteeship hearing began on January 16, 2004, and extended into additional hearing dates during the following months. (Zaiser Decl. Ex. E at 3.) After considering the evidence presented at the hearing and the written statements of individual members, Hearing Officer Flynn issued his report and recommendation on August 24, 2004. (Id. at 37.) Flynn first concluded that President Holway had "little choice but to institute an emergency trusteeship to protect the interests of the members and to ensure the financial integrity of the Local" due to the evidence of financial malpractice, retaliatory conduct and dysfunctional governance within Local R3-77. (Id. at 18.) Flynn then recommended that the trusteeship be maintained based on the "overwhelming[]" evidence that the Local R3-77 Executive Committee had failed to cooperate with the Trustee by providing requested financial documentation, that the local had been rendered insolvent by arbitration costs, that Bernsen and Johnson had mishandled local funds and banking records, and that the local's governance was improperly dominated by Johnson and Bernsen. (Id. at 19-37.)

  Flynn's report and recommendation was approved by a unanimous vote of NAGE's National Executive Committee on September 7, 2004, with President Holway, National Vice President Marc Lawson and Gerald Flynn abstaining. (Zaiser Decl. Ex. E.; Barry Decl. ¶ 3.)

  IV. Disciplinary Proceedings

  As a result of the imposition of the trusteeship and the corresponding investigation, NAGE officials learned of two incidents which caused the national to institute disciplinary proceedings against Johnson and Bernsen. On October 28, 2003, after Holway had announced the appointment of John Sabulis as monitor over the local, Bernsen closed a Wachovia account labeled "NAGE Local R3-77 Civil Rights Legal Defense Fund" and transferred its $1,540.57 balance into his personal account. (Zaiser Decl. Ex. E at 23.) Around November 26, 2003, two days after Holway's imposition of the emergency trusteeship, Johnson changed the address on the local's accounts from the union's post office box at PBGC to her home address without informing Trustee Zaiser. (Id. at 22.)

  By letters dated August 19, 2004, President Holway notified both Johnson and Bernsen that the union was contemplating disciplinary action against them and that hearings in their cases would be held before National Vice President Marc Lawson on September 14, 2004. (Zaiser Decl. Exs. F and H.) The letters informed Bernsen and Johnson of the conduct at issue, the constitutional violations alleged, and their opportunity to "answer the charges, to offer defenses, and to otherwise dispute that just cause exists for any disciplinary action." (Id.) Bernsen represented himself and Johnson at the hearings, cross-examining each of NAGE's witnesses. (Zaiser Decl. Exs. G and I.) Both Bernsen and Johnson offered opening statements in their defense; Bernsen presented closing arguments in each of the cases. (Id.) Though given the opportunity to do so, neither called witnesses. (Id.)

  Lawson's report and recommendation in Bernsen's case, issued on November 29, 2004, concluded that Bernsen should be expelled from the union. (Zaiser Decl. Ex. I at 22.) During the proceedings, Bernsen admitted closing the account and transferring the funds without notifying Trustee Zaiser. (Id. at 12.) Bernsen defended his conduct by arguing that he had opened the account three years earlier in order to collect private donations for the reimbursement of $10,000 he had paid in attorney's fees for two members' civil rights lawsuits. (Id. at 7.) Lawson rejected this argument, finding that the donors had intended to make their contributions to the local, that Bernsen had opened the account in the local's name and with its tax identification number, that such an account would not have been required if it was intended only to reimburse Bernsen, and that Bernsen's explanation was contradicted by his own contribution to the civil rights account and his failure to take money from the fund in the years since its creation. (Id. at 13-17.)

  With respect to Johnson, Lawson's report, also issued on November 29, 2004, recommended that she be suspended. (Zaiser Decl. Ex. G.) Johnson, too, had admitted the conduct forming the basis of the disciplinary proceedings. (Id. at 9.) She denied having changed the local account's address in order to keep the statements from the Trustee, arguing that she had become concerned about PBGC's access to the mailbox where the statements had been delivered. (Id. at 10.) Lawson rejected Johnson's defense, finding that there was no change of circumstances giving PBGC greater access to the mailbox at that the time the address was changed, that Johnson admitted having learned of the trusteeship the day prior to her conduct, and that she had given no explanation for her failure to notify Trustee Zaiser of the account or her actions despite three orders that she turn over all information regarding the local's finances. (Id. at 9-11.)

  President Holway adopted Lawson's reports and recommendations on November 30, 2004, expelling Bernsen from Local R3-77 and suspending Johnson's membership in the union. (Zaiser Decl. Exs. G and I.) Both appealed to the National Executive Board — a body consisting of the National Executive Committee and thirty members selected at the national convention — which appointed a five-member Judiciary Subcommittee to consider the matters. (Barry Decl. ¶ 7.) After reviewing the records in each case, the subcommittee recommended that the full board affirm the discipline of Bernsen and Johnson. (Id. ¶ 8.) The Executive Board did so by unanimous vote, with Holway, Lawson and ...


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