Summary
affirming trial court's grant of summary judgment for defendant employer where plaintiff brought claims based on CBA directly against the employer and did not first file with the DLR or name union as a defendant in the lawsuit against the employer
Summary of this case from Hines v. Bos. Pub. Sch.Opinion
16-P-934
07-21-2017
Paul O. PENACHIO v. TOWN OF SAUGUS& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Paul O. Penachio, brought a declaratory judgment action against the town of Saugus (town) and Scott Crabtree, the town manager, seeking reinstatement to his former positions as a fire fighter and emergency management director. He claims that he resigned under duress, and therefore has a right to reinstatement. Following discovery, a judge of the Superior Court granted the defendants' motion for summary judgment. For the reasons set forth below, we affirm.
Background. We recite the undisputed facts in the light most favorable to the plaintiff. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Penachio had worked as a fire fighter for the town since July, 1993. He also served as the town's emergency management director, though the record is unclear as to exactly when he assumed this position. On February 10, 2014, Fire Chief Donald McQuaid received reports of possible misconduct by Penachio: McQuaid was told that a woman had been visiting the fire house at night and that she had once been seen in the bed of Penachio's dorm room.
It is axiomatic that we review the ruling on a grant of summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007).
Concerned about what he had heard, McQuaid had a meeting with Penachio later that day. Two other fire fighters attended the meeting as union stewards: Robert Shannon, a lieutenant, and William Cross, the union president. Penachio denied that a woman had been in his dorm room bed, but he admitted that he gave a woman the access code to the building around late December, 2013, and that she had used the code to gain access and visit him six times since then. There was apparently some discussion about appropriate disciplinary action, including a possible thirty-day suspension, but the details of that conversation are sparse.
Three days later, on February 13, 2014, Cross received an anonymous voicemail message directing him to check his fire house locker. There he found an anonymous letter accusing Penachio of gross misconduct. The author alleged that Penachio, while on duty, had sex with women other than his wife, drank alcohol, and look at pornography on the Internet. Included with the letter was a photograph of Penachio nude; the anonymous author wrote that Penachio had e-mailed it from the fire house. The anonymous author represented that he had extensive evidence of these claims, which, if revealed, would "destroy" Penachio, as well as the town and various local institutions. The writer threatened to disclose the evidence and "rain down vengeance" unless Penachio resigned immediately.
In the course of litigation, Penachio admitted to at least some misconduct similar to that alleged in the letter.
Cross showed Penachio the letter. He also consulted with the union's attorney about the letter and how Penachio should respond. Afterwards, Cross met with Penachio to review that conversation, and Cross advised him to resign. Penachio then prepared two letters stating his intent to resign "immediately" from his positions as fire fighter and emergency management director; one was addressed to Chief McQuaid, and the other to Scott Crabtree, the town manager. Penachio hand-delivered the letter for McQuaid, and he asked Cross to deliver the letter for Crabtree after he had spoken to Crabtree. Penachio also spoke with both Crabtree and McQuaid. He told the chief he did not want to resign and was acting under duress. Penachio told Crabtree he was acting under duress because of the threats, and asked Crabtree to hold his resignations until he returned from vacation and he could consider his actions further. McQuaid ordered that Penachio's locker be emptied and revoked Penachio's building access and computer access. On February 19, the town sent Penachio a letter confirming the resignation and asking him to return a town vehicle. On February 20, the town mailed him his final paycheck and a letter explaining how it was calculated. On February 24, it sent him a letter with information about unemployment insurance and health insurance.
On February 19, Penachio attempted to rescind his resignation. Cross told him that he did not have a problem with retraction, but that Crabtree had to be told. Cross informed Penachio that afternoon that Crabtree would not allow him to return. On February 24, 2014, Penachio sent the town a letter explaining that he had been "threatened and Extorted [sic ] to resign." In his letter, he asked to "rescind and revoke the resignation letter ... forwarded to your office dated February 13, 2014." The town declined to reinstate him.
On March 5, 2014, Penachio filed the present action in the Superior Court, naming the town and Crabtree as defendants. He claims that he may rescind his resignation because he tendered it under duress caused by the anonymous letter, and because he revoked it before it was accepted. See G. L. c. 231A. On May 23, 2016, after discovery, a judge of the Superior Court allowed the defendants' motion for summary judgment and dismissed the complaint on the grounds that there was no allegation or showing that the town or its manager had any responsibility for or involvement with the anonymous letter that precipitated Penachio's resignation. Penachio appeals from the judgment that entered pursuant to the order granting summary judgment to the defendants.
Discussion. The town contends that Penachio was precluded from asserting a breach of contract claim in the Superior Court because this claim was subject to the grievance and arbitration procedures in the applicable collective bargaining agreement (CBA). "Employees may not simply disregard the grievance procedures set out in a collective labor contract and go direct to court for redress against the employer." Johnston v. School Comm. of Watertown, 404 Mass. 23, 25 (1989), quoting from Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 286 (1976).
The town also contends that Penachio cannot invoke the declaratory judgment statute, G. L. c. 231A, for the relief he seeks. There are cases where public employees attempted to rescind resignations by seeking declaratory relief regarding their claims. See, e.g., Sinkevich v. School Comm. of Raynham, 403 Mass. 420 (1988) ; Galluccio v. Commissioner of Labor & Indus., 4 Mass. App. Ct. 864 (1976) (rescript). We decline to consider this issue further, however, because we affirm the judgment on other grounds.
Penachio does not contest the existence of the CBA, nor its terms, which provided not only for a grievance and arbitration process, but also prohibited the town from discharging bargaining unit employees except for just cause. Instead, he argues that, following the town's processing of his resignation, the town and the union no longer considered him an employee and, therefore, resorting to the CBA's grievance and arbitration provision would have been futile. We find no merit in this argument for two reasons. First, it was not raised below, and is therefore waived. See Scheffler v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905 (2013). Second, even if we were to reach the merits, the argument is unavailing.
For the first time at oral argument, Penachio asserted he had a personal employment contract. "We do not address arguments raised for the first time at oral argument." Santos v. U.S. Bank Natl. Assoc., 89 Mass. App. Ct. 687, 700 n.14 (2016). Moreover, where there is a CBA, there is no personal contract as a matter of law. See Johnston, 404 Mass. at 25.
Bearing in mind the "broad public policy favoring the resolution of labor disputes through arbitration," FalmouthPolice Superior Officers Assn. v. Falmouth, 80 Mass. App. Ct. 833, 838 (2011), we begin, as we must, by presuming that the dispute would be arbitrable. See Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 75 Mass. App. Ct. 340, 342-343 (2009). That is, "[a]n order to arbitrate [a] particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Id. at 343 (quotations omitted). First, there is a dispute of fact as to the resignation. Penachio claims he did not in fact resign, and that Crabtree promised to hold the letters. In the absence of a resignation, this is a traditional termination case, plainly covered by the CBA. Even if an arbitrator found that Penachio did resign, a dispute is arbitrable where "an employee has in fact submitted a resignation, [and] the employee subsequently has attempted to withdraw it." Elkouri & Elkouri, How Arbitration Works, ch. 15.2.B (8th ed. 2016). "[I]f a statement of an intention to resign is involuntary or coerced, the alleged resignation will be treated as a discharge for the purposes of arbitral review." Ibid.
The scope of the CBA is broad, covering "all issues which were, or which the Union or the Town had by law the right to make the subject of collective bargaining in negotiations between them."
We decline to address the plaintiff's due process argument because he failed to raise it in opposition to the defendants' summary judgment motion and has thus waived it. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
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Penachio was required to rebut this presumption by showing either "(1) the existence of an express provision excluding the grievance from arbitration or (2) the most forceful evidence of a purpose to exclude the claim from arbitration." Sheriff of Suffolk County, supra at 343 (quotations omitted). He did not offer evidence or argument on either point, and we therefore conclude he was subject to the general rule that required him to pursue relief through the CBA's grievance and arbitration process. See Johnston, 404 Mass. at 25.
Penachio maintains however, that he is excused from grieving the discharge because the union refused to assist him. See Azzi v. Western Elec. Co., 19 Mass. App. Ct. 406, 409 (1985). He points to evidence that, after his resignation and before he tried to rescind his resignation, he asked for assistance from Cross, who told him there was nothing the union could do.
In order to bring a common law breach of contract claim against the town, Penachio was required to first "allege[ ] and show[ ] that the union ... failed in its duty to represent him fairly, or that his employer repudiated or otherwise nullified the grievance procedures." Ibid. A claim for breach of the duty of fair representation lies against the union. See Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341, 353-354 (1987). Such claims must ordinarily be brought, in the first instance, to the Department of Labor Relations (DLR), formerly the Labor Relations Commission. Id. at 349. Penachio has offered no evidence that he brought such a claim to the DLR. Here, as in Johnston, there are factual issues in dispute. There was no showing that the plaintiff was prevented from filing with the DLR, or misled in any way by the applicable legal precedent. For this reason, the judge did not err in entering judgment for the defendants. Ibid. Finally, even if there were a basis to bring a breach of duty claim in court, see ibid., the plaintiff did not name the union as a defendant or assert a claim for breach of the duty of fair representation in this case.
We therefore affirm the grant of summary judgment for the defendants.
Judgment affirmed.