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Burnett v. Washington Metropolitan Area Transit Authority

United States District Court, D. Columbia

September 21, 2015


Page 232

          For WILLIAM BURNETT, Plaintiff: John Edward Williams, LEAD ATTORNEY, LAW OFFICES OF JOHN E. WILLIAMS, Esq., Alexandria, VA.


         For AMALGAMATED TRANSIT UNION LOCAL 689, Defendant: Douglas Taylor, LEAD ATTORNEY, GROMFINE, TAYLOR & TYLER, Alexandria, VA.

Page 233


         CHRISTOPHER R. COOPER, United States District Judge.

         William Burnett was running late for work. So he did what many employees might do in his situation: As he neared the office parking lot, he used his cell phone to call his supervisor and request a few minutes grace time. Unfortunately for Mr. Burnett, he worked for the Washington Metropolitan Area Transit Authority (" WMATA" ), which has a zero-tolerance policy prohibiting employees from using cell phones without a " hands-free" device while driving their personal vehicles on WMATA property. Observed using his phone by a WMATA safety officer, Burnett was written up and fired. After an unsuccessful union grievance, Burnett filed this " hybrid" action against WMATA for terminating him based on the cell-phone policy, and his union for failing to timely request arbitration of the failed grievance. All three parties have moved for summary judgment. Because there is no genuine dispute that Burnett violated WMATA's Electronic Device Policy, the Court will

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grant summary judgment for the defendants.

         I. Background

         WMATA employed Burnett as a laborer until his termination in June 2012. Compl. ¶ ¶ 2, 8. On June 13, 2012, a WMATA safety officer filed a report claiming that he had observed Burnett the previous night " talking on his cell phone (without a hands-free device) while operating his personal vehicle" on WMATA property, in violation of WMATA policy. Affidavit of Scott Kelley (" Kelley Aff." ) Ex. 1. WMATA's " Electronic Device Policy" states: " Metro has a 'Zero Tolerance' policy regarding the unauthorized use of Electronic Devices while operating Metro revenue vehicles, and--unless a Hands-Free Device is used--while Operating non-revenue vehicles and personal vehicles on Metro property . . . ." Id. Ex. 2. Questioned about the incident by a WMATA official, Burnett wrote out a statement admitting that he was " using [his] cell" to " call[] a supervisor to let him know that [he] may [be] a little late . . . ." Deposition of William Burnett (" Burnett Dep." ) Ex. 3; see also Deposition of Melvin Smith (" Smith Dep." ) 15:16-16:3 (stating that Burnett " put together" the written statement and " submit[ted] it to [Smith]" ). Burnett was terminated for the infraction two days later. Affidavit of Melvin Smith (" Smith Aff." ) Ex. 3.

         Burnett's union, Amalgamated Transit Union Local 689 (" Local 689" ), filed a grievance challenging his termination. In a written statement supporting the grievance, Burnett again acknowledged using his cell phone. He explained that he was " in the process of calling" but " never got to speak with [his supervisor] as [he] pulled up and . . . made it to the . . . clock on time." Burnett Dep. Ex. 6. Burnett also wrote that " [t]he phone was on speaker." Id. WMATA denied the grievance at each of the four stages of the administrative process. The union then sought to compel arbitration, but the arbitrator determined that the union's arbitration request was untimely.[1]

         Burnett then filed this " hybrid" action, asserting violations of both the National Labor Relations Act and the Labor Management Relations Act. His complaint alleges (1) that Local 689 breached its duty of fair representation to him by missing the deadline to arbitrate his grievance, and (2) that WMATA breached its collective bargaining agreement with the union by unfairly terminating him for violating the cell-phone policy. Burnett must prove both allegations in order to prevail. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 67, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). The union previously moved to dismiss for failure to state a claim. In denying its motion, the Court found that Burnett had pled a plausible claim that the union's failure to meet the deadline was arbitrary and, therefore, constituted a breach of its duty of fair representation. Burnett, 58 F.Supp.3d at 107-08. Moving to the second allegation, the Court identified four potential factual disputes surrounding Burnett's use of the phone that precluded a finding on the pleadings alone that Burnett's firing comported with WMATA's Electronic Device Policy. Id. at 108-09. First, the written statement that the union proffered with its motion as Burnett's admission of violating the policy was not signed by him, raising questions about its accuracy. Second, the statement left open the possibility that he was using

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a " hands-free" device to call his supervisor, consistent with the policy. Third, Burnett alleged in the complaint that the safety officer could not have seen him using the phone because it was dark (Burnett worked the night shift) and the windows of his car were tinted. Finally, Burnett alleged that his cell-phone billing records would show that he was not in fact using his phone during the relevant time period.

         The parties thus proceeded to discovery. The safety officer, Scott Kelley, testified in his deposition that he was approaching the entrance of WMATA's New Carrolton, Maryland yard just shy of 10 p.m. on June 12, 2012. He said that he was driving about 10 miles per hour (the speed limit on the entry road) when he noticed Burnett pass him on the left, driving erratically. According to Kelley, Burnett was holding a cell phone next to his face. Deposition of Scott Kelley (" Kelley Dep." ) 37:19-21, 38:12-14. He testified that he could tell the phone was next to Burnett's face because he saw the illuminated screen through the windows of Burnett's car as it passed. Id. at 180:14, 181:14-16. The WMATA official who questioned Burnett about the incident, Melvin Smith, also gave deposition testimony. He explained that Burnett provided a written statement, and that he (Smith) signed the statement after Burnett confirmed that it was accurate. Smith Dep. at 15:21-16:3. In Burnett's deposition, Burnett's counsel asserted the Fifth Amendment privilege against self-incrimination on Burnett's behalf, and directed him not to answer any questions about the events of the evening in question.[2] Burnett Dep. 40:10-13.

         Both sides moved for summary judgment at the conclusion of discovery. With his reply, Burnett also filed an affidavit in which he attests that his car windows were tinted and shut, Burnett Aff. ¶ 5; that his cell phone records indicate that his phone was not in use at the time of the incident, id. ¶ 6; that his phone itself is a hands-free device, id. ¶ 7; and that he " was not using [his] cell phone as Mr. Kelly [sic] claimed in his report," id. ¶ 7. WMATA has moved to strike Burnett's affidavit because, by invoking the Fifth Amendment in his deposition, Burnett deprived WMATA of the opportunity to examine him about the subject matter of the affidavit. The Court held a hearing on May 21, 2015.

         II. ...

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