United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
Michael Reynolds, brings this action under Section 301 of the
Labor Management Relations Act claiming that a hospital
terminated his employment without just cause and that his
union breached its duty of fair representation in declining
to pursue his grievance to arbitration.
me are the Defendants' motions for summary judgment on
all of Mr. Reynold's claims as well as their motion to
strike portions of Mr. Reynold's affidavit.
Factual Background 
union Defendant, 1199 SEIU United Healthcare Workers
East (“the Union”), is an unincorporated
labor organization that at all relevant times was the
collective bargaining agent for certain non-supervisory
employees of the hospital Defendant, Steward St.
Elizabeth's Medical Center of Boston, Inc.
approximately 2009, the Union has had a collective bargaining
relationship with the Hospital. Specifically, at all times
relevant to this action, the Union and the Hospital were
parties to a Collective Bargaining Agreement
(“CBA”). The CBA was in effect from October 1,
2009 to September 30, 2013 and from October 1, 2013 to
October 31, 2016.
XI, § 11.01 of the CBA (in effect in October 2013)
provides, “Any employer covered by this Agreement has
the right to discipline, suspend or discharge a worker for
Just Cause only, except in the case of a probationary worker
who may be terminated without recourse to the Grievance
XXIV, § 24.03 of the CBA governs the parties' formal
grievance and arbitration procedure. Section 24.03, in part,
Section 24.03 Formal Procedure:
In the event of a controversy concerning the meaning or
application of any provision of this Agreement, such
controversy shall be treated by the Union and the Employer as
a grievance and shall be settled, if possible, by the Union,
the worker and the Employer as set forth hereafter. At all
Steps of the Grievance Procedure, the worker or delegate will
submit the grievance, in writing, explaining as specifically
as possible, the nature of the complaint and identify the
contract provision(s) affected. Group grievances may be
submitted at Step 2.
Step 1 - Department Head/Manager
The worker or Delegate will present a grievance in writing to
the Manager or Department Head within twenty (20) working
days from the date of the alleged violation of the contract.
The grievance must include the facts, dates, applicable
provision(s) of the contract and the remedy requested.
XXIV provides further for advancement to Step 2 and Step 3
meetings with representatives of senior management, human
resources, and the Vice President of Human Resources,
respectively, should the disagreement remain unresolved.
24.03 of the CBA further provides:
In the event that the parties are unable to settle a
grievance after the Step 3 or Step 4 process is complete,
then either party may request arbitration of said grievance
by serving written request for arbitration upon the other
party, no later than thirty (30) days following the date of
the written answer under Step 3 or within 5 days of
terminating the optional Step 4 mediation process. If either
party fails to make a written request for arbitration in this
manner within this thirty (30) day period the grievance shall
be deemed to have been settled in accordance with the most
recent written answer which shall be final and binding on the
Leveille has been employed by the Union and its predecessors
since 1997. She currently serves as Vice President of the
Union's Steward Health Care System Division.
2013, Enid Eckstein held the position as Vice President of
the Union's Steward Health Care System Division. Ms.
Eckstein had been employed by the Union and its predecessors
since 1989. She retired in October 2014, at which time Ms.
Leveille succeeded her as Vice President.
2013, Ms. Leveille served as the Union's Lead
Administrative Organizer (“AO”) at the Hospital.
Her responsibilities as Lead AO included negotiating the
Union's master contract with Steward Health Care System,
administering the CBA at the Hospital, including by assisting
Union delegates, and assisting then-Vice President Eckstein
with staff matters and day-to-day duties. As Lead AO, Ms.
Leveille also attended meetings with management on behalf of
the Union and represented bargaining unit members throughout
the contractual grievance procedure.
Michael Reynolds, was hired by the Hospital
as an MRI Technologist (“MRI Tech”) in April
2010. While employed at the Hospital, Mr. Reynolds was a
member of the Union and his employment was governed by the
CBA. For the three and a half years of his employment, Mr.
Reynolds was supervised by Judith Ierardi, the Operations
Manager of Radiology, Radiation Oncology, and the Breast
Center at the Hospital.
The Contrast Incident
20, 2013, Mr. Reynolds received an order for an MRI which
expressly stated “p[atien]t is pregnant and so no
contrast.” The order also indicated that it should be
for an “MRI BRAIN W/WO CON.” Mr. Reynolds
thereafter entered an order in which the statement
“patient is pregnant and so no contrast” had been
removed. On that same day, Mr. Reynolds himself injected a
pregnant patient with gadolinium-based contrast.
policy cautioned that “[g]adolinium-based agents should
be administered in pregnancy only with extreme caution and
avoided if at all possible.” Ms. Ierardi testified that
in her 25 years she “never ha[d] heard of anyone
injecting a pregnant patient with contrast.”
matter of routine where serious discipline was under
consideration, Ms. Ierardi telephoned Ms. Leveille to let her
know there had been a “very serious incident, ”
in reference to the contrast matter, and that she (Ierardi)
would recommend that Reynolds be terminated.” Ms.
Leveille engaged Ms. Ierardi in a discussion of the incident
and advocated strongly against termination, based on the role
two physicians played in the contrast incident and based on
lesser discipline that had been issued previously to an MRI
tech who had committed a serious error. Ms. Leveille made
clear that the Union would vigorously challenge termination
should the Hospital discharge Mr. Reynolds.
26, 2013, Mr. Reynolds attended a disciplinary meeting with
Ms. Ierardi regarding the contrast incident. He was
represented by Union delegate, Kristin Knehans. During this
meeting, Ms. Knehans stated that while the contrast incident
may be “a fireable offense, ” the Union would
strongly fight against Mr. Reynolds's termination based
on the lesser discipline previously issued to an MRI tech who
had committed a serious error.
conclusion of the disciplinary meeting, the Hospital did not
terminate Mr. Reynolds, but issued him a Final Warning that
stated, “[Mr. Reynolds] failed to follow the contrast
policy for a pregnant patient in the MRI suite. This is an
egregious violation of the Contrast Medium for Pregnant
Policy Rad-02-11, and MRI in pregnancy Policy MR-11 which
could have resulted in harm to the unborn infant.” The
Final Warning stated that “any other performance or
behavioral problems may result in further disciplinary action
up to and including termination of
Reynolds did not grieve the July 26, 2013 Final Warning or
request that the Union do so.
Performance After the Contrast Incident Leading to His
August 2013, less than a month after the issuance of his
first Final Warning, Mr. Reynolds was the subject of a
complaint from a radiology tech aid, Jemilexi Figueroa. Among
other things, Ms. Figueroa complained that there had been
several incidents over the prior two months in which she felt
that Mr. Reynolds had “harassed and belittled”
her and that she had “suffered stress and verbal abuse
on numerous occasions” as a result of Mr.
Reynolds's behavior. Mr. Reynolds was not Ms.
Figueroa's supervisor nor did he have any supervisory
authority over her. In his view, she was not doing her job,
was lazy, and was there just to collect a paycheck so he had
created a list of responsibilities and a check-off list for
certain duties to be used by Ms. Figueroa and the other tech
September 17, 2013, Mr. Reynolds attended another
disciplinary meeting with Ms. Ierardi and Human Resources
Administrator, Catherine O'Neill,  following Ms.
Ierardi's receipt of complaints from Ms. Figueroa and
other department staff concerning Mr. Reynold's conduct.
Because Mr. Reynolds had expressed dissatisfaction with Ms.
Knehans, Ms. Leveille herself accompanied Mr. Reynolds to the
conclusion of the meeting, Mr. Reynolds received a second
Final Warning. This second Final Warning cited Mr. Reynolds
for his interactions with Ms. Figueroa and for “not
communicating in a respectful collaborative manner with other
staff members and creating and disseminating documents
surrounding responsibilities and departmental procedures
[that] has created an uncomfortable work environment which
counteracts the policies set forth by the Medical
Center.” It further stated that “[f]ailure to
satisfactorily correct the problem(s) as stated in this
warning or any further occurrences in the future of this type
or any other performance or conduct problems, will result in
further disciplinary action including the possibility of
suspension and/or termination. Immediate and sustained
improvement is required.”
Hospital issued Mr. Reynolds a Performance Improvement Plan
(“PIP”). The PIP required Mr. Reynolds to adhere
to a 7-point action plan. The first point of the PIP required
him to review HR policy HR 5-10, which, among other things,
informed Mr. Reynolds that actions including
“[i]nsubordination, ” “[c]onduct contrary
to the best interest of St. Elizabeth's, its patients or
employees, while on or off duty, ” “[v]iolation
of patients' rights/confidentiality, ”
“[v]iolation of computer security procedures, ”
“[f]ailure to perform required job responsibilities,
” “[f]ailure to follow department policies and
policies of St. Elizabeth's Medical Center, ” or
“[i]ntentional disruption of medical center routine,
” could result in disciplinary action up to and
including discharge. The PIP also required Mr. Reynolds to
review the Service Excellence Standards, which, among other
things, informed him that he must maintain “an
atmosphere of friendliness, courtesy and concern for each
patient, visitor, physician and co-worker, ” provide
patients “with prompt service, always keeping them
informed of delays and making them comfortable while they
wait, ” and treat all . . . co-workers with
addition to reviewing HR policies, the PIP also required that
Mr. Reynolds immediately cease from directing the work of his
co-workers or colleagues, refrain from creating and
disseminating documents that list the responsibilities or
tasks of other co-workers, refrain from creating documents
that are meant to instruct co-workers on departmental
policies/procedures, not address concerns he had of his
co-workers' performance directly with his co-workers,
immediately address any concerns he had regarding the
performance of his co-workers with his direct manager,
communicate in a collaborative and respectful way with
co-workers, staff members, and patients throughout the
Medical Center, and meet weekly with his manager to review
his progress. Mr. Reynolds testified that he understood that
a failure to comply with the PIP could lead to further
disciplinary action, including separation from employment.
Again, Mr. Reynolds did not grieve the second Final Warning
or ask the Union to grieve it on his behalf.
September 18, 2013, the day following the second disciplinary
meeting, Mr. Reynolds filed an unfair labor practice charge
with the National Labor Relations Board (“NLRB”)
against the Union relating to the Final Warning he received
in July 2013. Specifically, Mr. Reynolds alleged that
“[o]n July 28, 2013, my Union Representative failed to
represent me by recommending my termination of
employment.” Mr. Reynolds ultimately withdrew this
unfair labor practice charge.
accordance with the terms of the PIP, Mr. Reynolds was
scheduled to attend a meeting with management on October 4,
2013. On October 3, 2013, Mr. Reynolds sent an email to Ms.
Leveille “requesting an attorney to represent
[him].” He indicated that he did “not feel
comfortable attending any further meeting with [his]
supervisor and/or H.R. personnel until [he] ha[d] an attorney
present to represent [his] interests and witness any further
Leveille responded within minutes stating, “We do not
provide an attorney for meeting with management or HR. You
have the right to have a delegate with you under the contract
those are your rights.” Mr. Reynolds replied he
“would like the Union to provide [him] with an
attorney. That [that] [wa]s [his] right, and the NLRB as well
as [his] attorney ha[d] already informed [him] of this
entitlement.” Mr. Reynolds never requested, nor was he
denied, a Union delegate at any PIP meetings.
October 4, 2013, Mr. Reynolds met with Ms. O'Neill,
Director of Radiology, Ray Wilburn, and Ms. Ierardi, pursuant
to the PIP to discuss several performance deficiencies that
had occurred between their previous meeting and October 4.
Mr. Reynolds was counseled for making an injured patient wait
nine- and-a-half hours for a scan that was ordered at 8:00
a.m. He was also reprimanded for commenting on the status of
an injured football player's knee; technicians are not
permitted to divulge to a patient that they can read the
films or think that they know what the diagnosis may be. Mr.
Reynolds was also counseled for leaving the hospital while a
patient was waiting to be scanned. Additionally, he was
counseled for failing to remove duplicate orders from the
computer system and failing to perform normal stocking and
this meeting, Mr. Reynolds emailed Ms. O'Neill, Mr.
Wilburn, and Ms. Ierardi. Among other things, Mr. Reynolds
complained that he was not provided with an attorney for the
meeting and concluded the email by stating that management
“can inform me of your future list of grievances [about
my work performance] via email. Otherwise . . . I will need
to have an attorney - provided to me by the Union - present
as witness at any meetings in the future.”
following day, October 5, 2013, Ms. Ierardi expressed to Ms.
O'Neill and Mr. Wilburn her view that Mr. Reynolds's
refusal to attend future PIP meetings constituted
insubordination and further informed them that she had
received complaints from other techs that Mr. Reynolds
“did not communicate with any of them yesterday, was on
his cell phone and is passive aggressive.” Moreover,
that same day, Mr. Reynolds used a diphenhydramine tablet to
counteract a patient's allergic reaction to the contrast
medium. Rather than calling the hospital pharmacy to replace
the tablet, he left a sticky-note with a patient's name
and the medicine used.
October 11, 2013, Ms. Ierardi terminated Mr. Reynolds's
employment in consultation with Ms. O'Neill and Gail
Flynn, Director of Human Resources. At a meeting, Ms.
O'Neill and Mr. Wilburn notified Mr. Reynolds of his
termination and explained that his ongoing performance issues
and his refusal to attend weekly review meetings with his
supervisor constituted violations of his PIP and that the
Hospital had “lost faith” in Reynolds as an
employee. Mr. Reynolds was represented by Union delegate,
Adam Bezza, at this meeting.
The Grievance Process
October 28, 2013, following Mr. Reynolds's termination,
Mr. Bezza filed a grievance on Mr. Reynold's behalf
challenging the termination as without just cause.
November 26, 2013, Ms. Eckstein notified Mr. Reynolds that
Union AO, Bruce Fleischer, was assigned to handle his
grievance. In preparation for the Step 2 grievance hearing,
Mr. Fleischer took various steps, including: speaking to Mr.
Reynolds several times by telephone and email; speaking with
Union delegates, Ms. Knehans and Mr. Bezza, as well as Ms.
Ierardi and Ms. O'Neill; requesting and obtaining
information from the Hospital related to its decision to
terminate Mr. Reynolds; and reviewing Mr. Reynolds's
personnel file, including the two Final Warnings and the PIP.
Mr. Fleischer familiarized himself with details of both Final
Warnings, but he did not investigate the underlying facts
because they were not grieved and therefore could not be
challenged independently during the grievance process.
Flynn heard the Step 2 grievance on January 24, 2014. Mr.
Fleischer reviewed the entirety of Mr. Reynolds's
disciplinary history since the contrast incident and
addressed each allegation to argue that the Hospital did not
have just cause to terminate Mr. Reynolds. Mr. Reynolds
initially felt supported by Mr. Fleischer.
February 1, 2014, Mr. Reynolds emailed Mr. Fleischer about
the Step 2 grievance. In this email, Mr. Reynolds noted that
during the hearing, Ms. Flynn asked about his first Final
Warning and why it was not grieved, and that he and Mr.
Fleischer had “discussed the reason thoroughly.”
In his response, Mr. Fleischer explained that
“[u]nfortunately, we can't change the interactions
that went on previously, we need to figure out the best way
days later, on February 4, 2014, Ms. Flynn issued a Step 2
grievance response denying Mr. Reynolds's termination
grievance. Mr. Fleischer notified Mr. Reynolds of Ms.
Flynn's decision and timely moved the grievance to Step
Step 3 grievance hearing was held on April 23, 2014. Justin
May, in-house counsel for the Hospital, heard the grievance.
As he did at Step 2, Mr. Fleischer reviewed the entirety of
Mr. Reynolds's disciplinary history since the contrast
incident and addressed each allegation to argue that the
Hospital did not have just cause to terminate Mr. Reynolds.
Mr. Reynolds later testified that he felt Mr. Fleischer's
presentation at Step 3 was full and fair on his behalf. He
also testified that he had the opportunity to give his side
of the story in his own words.
end of the Step 3 grievance hearing, Mr. Fleischer stated
that the Union was open to considering a settlement agreement
and Mr. May agreed to consider it upon receipt of a proposal
from the Union. Mr. Fleischer raised the possibility of
settlement based on an earlier conversation with Mr. Reynolds
in which Mr. Reynolds expressed that he was very open to that
19, 2014, Mr. May issued a Step 3 grievance response denying
Mr. Reynolds's grievance based on his disciplinary
history and continued poor performance.
receipt of the Step 3 grievance response, Mr. Fleischer
consulted with Ms. Leveille, Ms. Eckstein, and the
Union's legal counsel to determine whether the Union
should advance Reynolds' grievance to arbitration. Mr.
Fleischer reviewed Mr. Reynolds's file with Ms. Eckstein
and expressed his belief that the Union would not be
successful at arbitration because Reynolds was a short-term
employee with several disciplinary actions and performance
concerns on his record.
President, Ms. Eckstein was the final decision maker as to
whether the Union advanced grievances to arbitration. Based
on her twenty-five years of experience in processing
grievances and determining their merit, Ms. Eckstein attempts
to examine the record by looking at the relevant factors in
the same way as an arbitrator. Ms. Eckstein spent
considerable time reviewing Mr. Reynolds's case and
discussing the merits with Mr. Fleischer. She did not conduct
an independent investigation of the facts underlying the two
Final Warnings because they were not grieved and, therefore,
not relevant to her decision as to whether to proceed to
Ms. Eckstein determined that based on the two Final Warnings
that were not grieved, the Hospital's ongoing concerns
with Mr. Reynolds's poor performance as evidenced by
staff and patient complaints, lack of disparate treatment,
and his failure to fully comply with the terms of the PIP,
the Union was unlikely to prevail at arbitration.
Accordingly, Ms. Eckstein decided that the Union would not
move Mr. Reynolds's grievance to arbitration.
23, 2014, the Union and the Hospital agreed to extend the
time for submitting the grievance to arbitration to allow Mr.
Reynolds to exercise his own internal appeal.
27, 2014, the Union advised Mr. Reynolds that it would not
submit his grievance to arbitration.
The Internal Union Appeal Process
2, 2014, Mr. Reynolds appealed the Union's decision not
to arbitrate his termination grievance.
the Union was in the process of setting up Mr. Reynolds's
appeal hearing, Mr. Fleischer and Mr. May discussed the
possibility of settling the grievance. On or about September
2014, the Hospital and the Union reached a tentative
settlement that the Union judged to be reasonable. On
September 17, 2014, Mr. Fleischer telephoned Mr. Reynolds and
left a message advising him that the Union and the Hospital
had reached a settlement the Union considered reasonable and
asked Mr. Reynolds to respond. He sent a letter to Mr.
Reynolds the next day conveying the same message.
thereafter, in a letter dated September 23, 2014, Mr.
Reynolds's counsel contacted the Union and alleged that
“1199 SEIU United Healthcare Workers East has
consistently breached its duty of fair representation to
Michael Reynolds by failing to properly pursue his grievance
against St. Elizabeth's Health Center.” The next
day, Ms. Eckstein responded to Mr. Reynolds's letter,
including a copy of the proposed settlement agreement with