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Kerry Shea Price v. Unite Here Local 25

August 10, 2012

KERRY SHEA PRICE, PLAINTIFF,
v.
UNITE HERE LOCAL 25, DEFENDANT. KERRY SHEA PRICE, PLAINTIFF,
v.
DC CAP HOTELIER LLC, CONNIE MILSTEIN, AND FRANK ARNOLD, DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

I.Background

Plaintiff Kerry Shea Price, proceeding pro se, brings this action against his former employer DC CAP Hotelier d/b/a the Jefferson Hotel ("the Jefferson"), as well as the Jefferson's owner and general manager, alleging that they breached a collective bargaining agreement ("CBA") governing his employment at the Jefferson in violation of § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. He further alleges that defendant UNITE HERE Local 25 ("the Union") breached its duty of fair representation by failing to pursue a grievance on his behalf. These claims combine to form what the Supreme Court has labeled a "hybrid § 301/fair representation" claim. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165 (1983). All defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, defendants' motions will be granted.

A. Factual Background

The Jefferson Hotel, located in Washington, D.C., employed plaintiff as a cook from July 20, 2009 to November 6, 2009. Pl.'s Am. Compl. [ECF 23] ("Pl.'s Compl.") ¶¶ 2, 23. Many of the Jefferson's employees are represented by the Union, a labor organization representing hospitality workers in and around the District of Columbia. Union's Mem. in Supp. Mot. Summ J. [ECF 30] ("Union's Mem.") at 2. Over the years, the Union and the Jefferson have negotiated a series of collective bargaining agreements that govern the terms of employment for Jefferson employees. Union's Mem. at 2.

In January 2007, representatives of the Jefferson and the Union met to discuss the hotel's planned renovation, which would require the complete closure of the facility. Jefferson Defs.' Mem. in Supp. Mot. Summ. J [ECF 28] ("Jefferson's Mem.") at 2. On January 29, 2007, the parties signed a series of agreements regarding employment issues relevant to the renovation and eventual reopening of the hotel. See Union's Mem. at 2-3 & Att. 1 ¶ 5 (Declaration of Stephanie Jones) ("Jones Decl."); Jefferson's Mem. at 2-3 & Att. 1 ¶ 3 (Certification of Gabrielle Desintonio) ("Desintonio Cert."). The parties negotiated a shutdown agreement where the Jefferson agreed to adopt the collective bargaining terms that would be settled in the upcoming rounds of negotiations with modifications that would apply upon the hotel's reopening. See Union's Mem. at 2; Jones Decl. ¶ 5 & Ex. A ¶ 14 (Shutdown Agreement). Those modifications were set forth in a Letter of Agreement, executed on the same day as the Shutdown Agreement. Jones Decl. ¶ 5 & Ex. B (Letter of Agreement) ("Agreement").

In the Letter of Agreement, the Union and the Jefferson agreed to a probationary period for returning employees as well as an extended probationary period for employees hired during and after the renovation. Agreement ¶¶ 3-4. Employees hired after the start of the renovations would be on probationary status during a pre-opening period of up to ninety days, and they would also be subject to an additional ninety-day probationary period following the hotel's reopening. Id. During the probationary period, Union-represented employees would not have access to the grievance and arbitration procedure unless they were "returning employees." Id. An explanation of the probationary period was included in the Employee Benefits Guide that was issued to the Jefferson's Union-represented employees in the fall of 2009. Jefferson's Mem. at 3; Desintonio Cert., Ex. B at 1. Plaintiff acknowledged his receipt of the Employee Benefits Guide on October 12, 2009. Hotel's Mem. at 3 & Ex. C.

When the Jefferson hired plaintiff on July 20, 2009, Pl.'s Compl. ¶ 2, the hotel had already been closed for renovations. It officially reopened on August 31, 2009. Jefferson's Mem. at 3. On November 6, 2009, sixty-seven days after the official reopening, the Jefferson fired plaintiff as the result of an alleged altercation with another employee. Pl.'s Compl. ¶ 23; Jefferson's Mem. at 3. The Union filed a grievance on plaintiff's behalf, Pl.'s Compl. ¶ 27, but took no further action after the Jefferson informed the Union that plaintiff did not have access to the grievance procedure because he was still within the ninety-day probationary period following the hotel's reopening date, Jefferson's Mem. at 3.

B. Procedural History

Plaintiff originally filed two separate lawsuits, one against the Union and one against the Jefferson, bringing several statutory and constitutional claims against each defendant.*fn1 The Court eventually dismissed all claims except for (1) the claim that the Jefferson had breached the CBA in terminating plaintiff, in violation of § 301 of the LMRA, 29 U.S.C. § 185, and (2) the claim that the Union breached its duty of fair representation by failing to adequately represent him in his grievance against his termination. As explained, plaintiff's two claims combine to form what the Supreme Court has labeled a "hybrid § 301/fair representation" claim. DelCostello, 462 U.S. at 165. Hence, the two actions were consolidated. Order Granting Mot. to Consolidate Cases [ECF 22].

II.Standard of Review

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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)(1); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue 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 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

Defendant Jefferson contends that in accordance with Local Civil Rule 7(h), the Court must accept as true those facts presented by defendants in their statements of material facts that plaintiff did not specifically refute. Reply Mem. in Further Supp. of Jefferson's Mem. [ECF 35] ("Jefferson's Reply") at 2-4. However, district courts have discretion to excuse noncompliance with Rule 7(h). See Bush v. District of Columbia, 595 F.3d 384, 387 (D.C. Cir. 2010); Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006). Furthermore, courts must construe pro se filings liberally, Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), and "may ignore some technical shortcomings," Voinche v. FBI, 412 F. Supp. 2d 60, 70 (D.D.C. 2006). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ...


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