The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Michelle Ferguson brings this action against defendants Local 689, Amalgamated Transit Union, and three of its employees, sued in their official capacities only (together "Local 689"). Ferguson, an employee of Washington Metropolitan Area Transit Authority ("WMATA"), was discharged from her position as a bus driver after her bus hit and killed a pedestrian. She alleges that WMATA discharged her without sufficient cause, in violation of its collective bargaining agreement with Local 689. She further alleges that Local 689 breached its duty of fair representation under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, by handling the grievance proceedings following her discharge in an arbitrary and perfunctory manner. Ferguson also asserts a claim against Local 689 for intentional infliction of emotional distress ("IIED"). On June 19, 2009, this Court granted WMATA's motion to dismiss and permitted Ferguson to pursue her claims against Local 689. See Ferguson v. Local 689, Amalgamated Transit Union, 626 F. Supp. 2d. 55 (D.D.C. 2009). Currently before the Court are cross-motions for summary judgment from Ferguson and Local 689. For the following reasons, this Court will grant Local 689's motion for summary judgment.
WMATA employed Ferguson as a bus driver from September 6, 2002 until her discharge on June 29, 2006. Am. Compl. ¶¶ 6, 10. During that time, Ferguson was covered by the terms of the collective bargaining agreement between WMATA and Local 689. Id. ¶ 7. On June 8, 2006, Ferguson's bus hit a pedestrian, who later died from injuries sustained in the collision. Id. ¶ 9. WMATA discharged Ferguson after determining that the accident was "major" and "preventable" under WMATA's Accident Policy, and that the accident resulted from her gross negligence, reckless conduct, and disregard for the basic principles of bus safety. Id. ¶¶ 10-11. Prior to June 8, 2006, Ferguson had not been involved in any accidents while performing her duties as a bus operator at WMATA. Plaintiff's Statement of Material Facts Which Are Undisputed ("Pl.'s Statement") [Docket Entry 36-2] ¶ 3. Ferguson contends that WMATA's investigation of the accident was not thorough and the allegations against her were "false and groundless and wholly without evidentiary support." Am. Compl. ¶ 11. She further contends that Local 689's actions were "discriminatory, in bad faith, arbitrary and capricious" and that Local 689 frustrated her attempts to appeal her discharge by instituting only a "perfunctory defense" on her behalf. Id. ¶ 21. Accident Investigation On June 8, 2006, as Ferguson's bus made a right turn off of Jenifer Street onto Wisconsin Avenue, the bus struck a pedestrian "who had walked into the crosswalk crossing Wisconsin Avenue." Pl.'s Statement ¶ 11. WMATA Assistant Superintendent Robert L. Ballard investigated the accident. See Accident Report Form, Plaintiff's Deposition Exhibit 4 ("Accident Rpt.") [Docket Entry 60-15]. Ballard interviewed Ferguson and Metropolitan Police Officers Connor and Belton, who witnessed the accident. Id. Ballard's attempts to contact other witnesses to the accident were not successful. Id. Officer Connor reported that Ferguson "was turning right, watching a male pedestrian on the left side walking towards the bus" when the "female pedestrian began to walk into the crosswalk." Id. at 2. The female pedestrian, according to Officer Conner, "was in the operator's blind spot" when the bus hit her. Id. The Accident Report Form contains a number of questions, to which the WMATA investigator must check "yes" or "no." Id. at 1. Ballard's responses to these questions indicate that he did not visit the scene of the accident (although he was thoroughly familiar with it), that he did not inspect the equipment involved, that a brake test was not performed, and that a traffic citation was not issued. Id. "Based on . . . the Operator's report, the Street Supervisor's report and The Guide to Determining Preventable Accidents," Ballard concluded that the accident was "major" and "preventable," that Ferguson had committed "multiple violations of Standard Operating Procedures," and accordingly he dismissed Ferguson effective June 29, 2006. Id.
Separately, the Metropolitan Police Department also prepared an investigative report on the accident to determine whether to pursue criminal charges against Ferguson. See Metropolitan Police Department Report, January 1, 2007, Plaintiff's Deposition Exhibit 11 ("Police Rpt.") [Docket Entry 60-16]. Detective Michael Miller performed a "crash reconstruction," which involved witness statements, pictures of the crash scene, and a study of the traffic light timing sequence, among other components of the accident scene. Id. Miller also interviewed Officer Connor, who again stated that Ferguson "was looking in the direction of the [male] pedestrian who was walking westbound in the crosswalk," and also provided the additional details for the police report: that the female pedestrian "was 5 to 7 feet inside the crosswalk" and "using her hands in the air, saying 'hey, hey'" when she was hit by the bus. Id. at 2. The Police Report's final recommendations state that Ferguson "most likely did not see the pedestrian prior to impact" and that the pedestrian "entered the crosswalk during the 'don't walk' stage of the light timing sequence." Police Rpt. at 5. Miller recommended against proceeding with criminal charges against Ferguson. Id. An initial Police Report was available in September 2006, and a final, supplemental report was completed on January 1, 2007. Id.; Deposition of Michelle Ferguson, July 8, 2009 ("Ferguson Dep.") [Docket Entry 60-14] 165:5-14. Ferguson provided the initial report from Detective Miller to Local 689 in September 2006. Ferguson Dep. 165:5-14.
Grievance Proceedings Immediately after her termination, Ferguson sought assistance from Local 689 to contest her discharge. Ferguson Dep. 120:8-10. Ferguson met with the shop steward, Michael Myrick, and then with union officer Wayne Garland. Id. 128:6-12. The union representatives informed her about the grievance procedure and the additional option to appeal the classification of her accident as "major" and "preventable" to the accident review board. Id. 125:12-24; 126:1-21. WMATA's Accident Policy, which was negotiated by WMATA and Local 689, permits an employee to "appeal the accident rating  to a review board composed of an Assistant General Superintendent, a Union Business Agent, and a Police Officer" and provides that "[a]ll results from a majority of the review board will be binding." BUSV Disciplinary Policy for Preventable Accidents ("Accident Policy") [Docket Entry 60-4] at 81.
On July 6, 2006, Ferguson submitted her accident appeal to the accident review board.
Ferguson Dep. 129: 7-13; Accident Appeal Form, Plaintiff's Deposition Exhibit 6 ("Accident Appeal") [Docket Entry 60-15]. The accident appeal hearing occurred the next day. Ferguson Dep. 129: 7-13; see also Accident Appeal. At the hearing, Myrick and Ferguson presented Ferguson's case, spending "about an hour" reenacting the accident and explaining Ferguson's perspective as to what had happened. Ferguson Dep. 132:16-24; 133:1-12. The accident review board denied Ferguson's appeal that day. See Accident Appeal.
On July 10, 2006, Ferguson spoke with union representative Garland and filed a grievance asserting that the punishment of discharge was "too harsh." Ferguson Dep. 128:6-24; 129:1-6; Grievance of Michelle Ferguson, Plaintiff's Deposition Exhibit 5 ("Ferguson Grievance") [Docket Entry 60-15]. WMATA subsequently denied Ferguson's grievance at each of the four required administrative steps of the grievance process. Id.; see Am. Compl. ¶ 16. At Step 4, Garland met with Jerome Artis from WMATA. Defendant's Revised Statement of Undisputed Facts ("Def.'s Statement") [Docket Entry 60-2] ¶ 8. On behalf of WMATA's General Manager, Artis denied Ferguson's grievance on October 5, 2006. Id. The CBA allowed 60 days to send written notice to WMATA if Local 689 desired to appeal the General Manager's decision to arbitration. Id. On October 20, 2006, Local 689's Executive Board voted not to pursue Ferguson's grievance because Board members believed it could not be won in arbitration. Id. ¶ 9. At union meetings that took place on November 6 and 7, 2006, the union membership voted to overturn the Executive Board's decision and to have the union present Ferguson's case before the Arbitration Board. Id. ¶ 10. Local 689 conducted triennial union-wide elections for union officers in December 2006, which resulted in a change of leadership at the union, including the officials responsible for pursuing Ferguson's grievance. Id. ¶ 12, 13.
On February 9, 2007, long after the 60-day window within which to file an arbitration request had lapsed, Local 689 requested arbitration of Ferguson's grievance. Id. ¶¶ 18-19. On November 6, 2007, the Board of Arbitration declined to hear the merits of Ferguson's grievance because Local 689 had filed the request in an untimely manner. Id. ¶ 20. The arbitration decision stated that the determination of the accident review board that the accident was "major" and "preventable" was binding. Michelle Ferguson Arbitration Decision, Plaintiff's Deposition Exhibit 8 ("Ferguson Arbitration")[Docket Entry 60-16] at 2. However, the Arbitration Chair also indicated that he was "not persuaded at [that] point that the binding nature of the decision extends to the degree of discipline imposed on Ms. Ferguson." Id.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(2); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 ...