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Reynolds v. Steward St. Elizabeth's Medical Center of Boston, Inc.

United States District Court, D. Massachusetts

March 7, 2019

MICHAEL REYNOLDS, Plaintiff,
v.
STEWARD ST. ELIZABETH'S MEDICAL CENTER of BOSTON, INC., and 1199 SEIU UNITED HEALTHCARE WORKERS EAST, Defendants.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         Before 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.

         I. BACKGROUND

         A. Factual Background [1]

         The 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. (“the Hospital”).

         Since 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.

         1. The CBA

         Article 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 Procedure.”

         Article XXIV, § 24.03 of the CBA governs the parties' formal grievance and arbitration procedure. Section 24.03, in part, provides:

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.

         Article 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.

         Section 24.03 of the CBA further provides:

Arbitration
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 parties.

         2. Relevant Individuals

         MaryEllen 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.

         In 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.

         In July 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.

         Plaintiff, 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.

         3. The Contrast Incident

         On July 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.

         Hospital 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.”

         As a 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.

         On July 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.

         At the 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 employment.”[2]

         Mr. Reynolds did not grieve the July 26, 2013 Final Warning or request that the Union do so.

         4. Performance After the Contrast Incident Leading to His Termination

         In 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 aids.

         On September 17, 2013, Mr. Reynolds attended another disciplinary meeting with Ms. Ierardi and Human Resources Administrator, Catherine O'Neill, [3] 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 meeting.

         At 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.”

         The 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 respect.”

         In 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.

         On 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.

         In 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 discussions.”

         Ms. 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.

         On 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 cleaning duties.

         Following 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.”

         The 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.

         On 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.

         5. The Grievance Process

         On 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.

         On 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.

         Ms. 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.[4]

         On 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 forward.”

         Several 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 3.

         The 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.

         At the 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 possibility.

         On May 19, 2014, Mr. May issued a Step 3 grievance response denying Mr. Reynolds's grievance based on his disciplinary history and continued poor performance.

         Following 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.

         As Vice 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 arbitration.

         Ultimately, 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.

         On May 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.

         On May 27, 2014, the Union advised Mr. Reynolds that it would not submit his grievance to arbitration.

         6. The Internal Union Appeal Process

         On June 2, 2014, Mr. Reynolds appealed the Union's decision not to arbitrate his termination grievance.

         While 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.

         Shortly 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 ...


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