United States District Court, D. Columbia
WILLIAM BURNETT, Plaintiff: John Edward Williams, LEAD
ATTORNEY, LAW OFFICES OF JOHN E. WILLIAMS, Esq., Alexandria,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant:
Gerard Joseph Stief, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, DC.
AMALGAMATED TRANSIT UNION LOCAL 689, Defendant: Douglas
Taylor, LEAD ATTORNEY, GROMFINE, TAYLOR & TYLER, Alexandria,
R. COOPER, United States District Judge.
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
grant summary judgment for the defendants.
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.
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
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
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.
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. Burnett Dep. 40:10-13.
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.