Opinion
Case No. 01-1255-JTM.
May 22, 2002
MEMORANDUM ORDER
This is an action by Diann Traffas against her former employer, The Cessna Aircraft Company, and against her former union, Local Lodge 774 of the International Association of Machinists and Aerospace Workers (AFL-CIO). Traffas was terminated from her employment at Cessna of February 14, 2001. Traffas alleges that she was terminated in retaliation for her opposition to sexual harassment. She also advanced a claim under § 301 of the Labor Management Act, 28 U.S.C. § 18, alleging violation of the Cessna Collective Bargaining Agreement ("CBA") and the union's violation of its duty of fair representation.
Also before the court is plaintiff's Motion to Compel seeking a broad range of additional discovery (Dkt. No. 45), and plaintiff's Motion to Amend the Pretrial Order (Dkt. No. 47). The court denies both motions. The Motion to Compel seeks an expansive variety of discovery from Cessna, notwithstanding the explicit statement in the Pretrial Order that discovery is complete, and much of the information is not directly relevant to the claims advanced herein. The Pretrial Order expressly provides that further discovery is permitted only to the extent that it is unopposed. (Order at ¶ 11). The plaintiff has previously agreed that discovery is complete, and has failed to demonstrate what manifest injustice might occur if the motion is denied. Similarly, the Motion to Amend the Pretrial Order seeks to withdraw plaintiff's stipulation that her 75-day probationary period began October 23, 2000. Plaintiff fails to demonstrate that the stipulation was entered into through inadvertence, or that enforcing the stipulation — which is factually consistent with the uncontroverted facts in the case — will work manifest injustice.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The facts before the court establish that Traffas began work at Cessna's 21st Street training facility, which offers basic skills and customized training to workers who could not otherwise qualify for entry-level production jobs, on May 15, 2000. Employees assigned to the training facility, which is designated Cessna Department 003, are not covered by the CBA. Employees who complete training and are transferred to one of Cessna's manufacturing plants become probationary employees under the CBA for 75 days.
Traffas began work at the training facility in a sheet metal training class. She completed this training and was transferred to vo-tech to take a refinish class. She completed the vo-tech class and began employment at Cessna's Mid-Continent manufacturing plant's Sand and Fill area (designated Department 134) on October 23, 2000. Traffas was in Department 003 until she transferred to Department 134 at the Mid-Continent Facility. Traffas acknowledged in her deposition that she understood that the 75-day probationary period began when she transferred to the Mid-Continent facility.
In her response to the motions for summary judgment, Traffas claims that her probationary period in fact ended while she was still at the 21st Street facility, because she did some work within the facility's sheet metal sub-assembly facility (which is covered at the CBA). But this doesn't short circuit the process — she may have worked there as part of her training, but CBA status applies only when training is completed and a worker is transferred to a manufacturing department. Traffas's deposition testimony establishes that she knew that she did not become a probationary employee until she transferred to the Mid-Continent facility. Further, the plaintiff's current argument is not only inconsistent with Traffas's own deposition testimony, it is also contrary to Stipulation 4.a(11) of the Pretrial Order, which provides: "Plaintiff's 75 day probationary period started on October 23, 2000." Finally, Traffas's pay records also show that, prior to joining the Mid-Continent facility, she was paid at a level below that of workers covered by the CBA.
On November 9, 2000, Traffas reported that Jason Morris, a co-worker, made an inappropriate comment to her. According to Traffas, she told Morris that her hands were cold; he responded by saying that she could put her hands in his pants to warm them. It is uncontroverted that Cessna immediately began an investigation of the allegation. However, the results were inconclusive. Morris denied making the statement, and no other witnesses to the comment could be found. Cessna separated Morris and Traffas.
Another incident occurred in December of 2000. There are different versions of this incident. Some workers report that Traffas went to Morris's work area and began staring at him and later interrupted him when he was talking with a female employee. Traffas contends that it was Morris who entered her area and began staring at her.
Another investigation was commenced. According to superintendent Don Hanson, while he was interviewing witnesses, he discovered that Traffas had been overheard discussing oral sex with other female employees.
It is uncontroverted that on December 13, 2000, Traffas met with area supervisors, Dana Koehler (an EEO Program Specialist), and Scott Reid (a Labor Relations Representative) to discuss her conduct and her failure to separate herself from Morris.
According to both Koehler and Reid, Traffas said that she had overreacted, and stated that her conduct was a result of suppressing a rape that occurred 19 years before. Traffas denies making this comment.
It is uncontroverted that Koehler told Traffas that based upon the facts, the company had acted appropriately when it separated her and Morris. It is also uncontroverted that he also told her it was her responsibility to keep away from Morris, and that going into his area and staring at him the night before was inappropriate. Koeher and Reid both state that Traffas was also advised to stop talking about oral sex with other employees, and to leave this type of information at home. Traffas denies making any comments about oral sex to other workers, and denies that she was told to stop.
Later that day, Reid met with Traffas, her supervisors, and a union representative. Reid told Traffas that her probation was being extended an additional 60 days, and reiterated the importance of correcting her behavior immediately. Traffas indicated that she understood. Traffas knew she was still on probation at the time her probation was extended. The agreement to extend Traffas's probation was signed by Traffas's manager, David Crawford, and her union steward, Elvin Jamison. Had Traffas not agreed to the extension, she would have been terminated.
It is not uncommon to extend an employee's probation. The alternative to extending the probationary period is discharging the employee. Probation is typically extended for employees who have questionable attendance, performance or conduct issues. Since January 1, 2000, Cessna has extended the probation of over 40 employees. Cessna will extend an employee's probation if any doubt exists about her ability to adequately perform. During the extension, the employee is required to raise her performance level or be subject to discharge.
The union prefers to see an extension of probation rather than have the employee terminated. During the probationary period, the union does not have jurisdiction to help a worker with a grievance.
On February 13, 2001, prior to the end of her extended probation, Traffas made an inappropriate comment to Scott Gatewood, a coworker — "there goes Scott's fat ass." Traffas concedes she made this comment, but denies that it was inappropriate. Traffas states that she made the comment in response to an earlier statement by Gatewood about the way she walked.
Cessna investigated the incident. According to Reid, although Traffas initially said that she had a witness to support her contention that Gatewood instigated the dispute, she was unable to name the witness.
Traffas was terminated for making abusive comments about another worker on February 14, 2001.
Cessna's Productive Work Environment Policy also states that retaliation against an employee for filing a complaint or participating in an investigation is strictly prohibited. This policy is posted on all the company bulletin boards, distributed during orientation, and is also on the company Human Resources website. Cessna also makes available to employees a pamphlet entitled "Preventing Sexual Harassment at Work" which includes a section prohibiting retaliation.
Conclusions of Law
The court concludes under the uncontroverted facts that summary judgment is appropriate. First, the court finds that the facts establish no violation of the CBA or breach of the union's duty of fair representation, since at the time of her discharge Traffas was a probationary employee.
Pursuant to § 42 of the CBA, a worker "who has been an employee of the Company seventy-five (75) calendar days or less is considered a probationary employee." Probationary employees may be discharged with or without cause by Cessna. Cessna and the union contend that the 75-day period begins when a worker is transferred from the training facility to another facility and placed in a bargaining union. Traffas contends that the probationary period began when she first began her training at the 21st Street facility.
Read together, the provisions of the CBA establish that the interpretation advanced by Cessna and the union is correct. By its explicit terms, the CBA applies to employees within bargaining units, employees at "the Company's Aircraft Division, the Citation Service Center, and the Service Parts Center." (CBA, §§ 3, 8). Company employees not previously in the bargaining unit are placed in a bargaining unit only as a new hire for purposes of determining seniority. (CBA, § 127). Persons engaged in training at the 21st Street facility are not included in the bargaining unit.
The extension of Traffas's probationary period was consistent with the terms of the CBA. As a probationary employee, Traffas's complaint was not subject to grievance. See Gomez v. United Paperworkers Int'l Union Local No. 333, No. 90-5540 (1992 WL 67885 (E.D.Pa. March 24, 1992). The extension occurred while Traffas was still under probation. Cf. Bennett v. Local Union No. 66, 958 F.2d 1429 (1992) (finding violation where extension occurred after worker became non-probationary). The extension occurred with notice to Traffas, and with the knowledge and consent of the union.
Absent the extension, Traffas's employment would have been terminated. The extension occurred consistent with the past practice of the employer and the union. This practice is consistent with the rights otherwise established by the CBA
The court finds that the extension of the probationary period and the ultimate termination of Traffas did not violate the terms of the CBA. As such, Traffas's § 301 claims against Cessna and the union must be dismissed.
Traffas's claims of retaliation must also be dismissed. First, there is no basis in the present record for finding that her termination was caused by her opposition to the alleged harassment by Morris. The incidents involving Morris occurred in November and early December of 2000. Following her reports of the incidents, Cessna immediately investigated her claims, and instituted remedial measures by separating the two workers. Traffas, however, was not terminated until mid-February 2001, about two months later. In the absence of other evidence demonstrating a connection between the termination and Traffas's complaints about Morris's alleged conduct, the court believes that this time is insufficient to itself create an inference of causation.
Second, Traffas's retaliation claim must be rejected because she has failed to demonstrate that Cessna's rationale for her termination — her use of abusive language towards a coworker — is a pretext for discrimination. It is uncontroverted that work rules prohibit the use of abusive language. Traffas concedes that she publicly commented about the "fat ass" of another worker. Other than her subjective belief that she was retaliated against, Traffas offers no evidence that retaliation was the reason for her termination. Such subjective beliefs, however, are insufficient to demonstrate the pretextual nature of a legitimate job action. See Aramburu v. Boeing, 112, F.3d 1398, 1407 n. 7 (10th Cir. 1997).
IT IS ACCORDINGLY ORDERED this day of May, 2002, that the plaintiff's Motions to Compel and to Amend (Dkt. Nos. 45, 47) are denied. The motions for summary judgment of the union and Cessna (Dkt. Nos. 40, 43) are granted.