United States District Court, D. Hawaii
ORDER (1) DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, DOC. NOS. 43
AND 47; AND (2) GRANTING HAUA’S AND YUEN’S MOTION
FOR JOINDER, DOC. NO. 50
Marc-Andre Kirchhof (“Plaintiff”) filed this
action asserting that (1) his former employer, Hawaii
Government Employees’ Association, Local 152, American
Federation of State, County and Municipal Employees, AFL-CIO
(“HGEA”), breached its collective bargaining
agreement (“CBA”) in violation of § 301 of
the Labor Management Relations Act (“LMRA”) by
wrongfully terminating him; (2) his union, Hawaii Association
of Union Agents (“HAUA”), breached its duty of
fair representation in violation of the National Labor
Relations Act (“NLRA”) by declining to arbitrate
his grievance; and (3) HGEA and HAUA’s (collectively,
“Defendants”) actions amount to intentional
infliction of emotional distress (“IIED”).
Plaintiff seeks reinstatement, compensatory damages, and
before the court are (1) Defendants’ Motions for
Summary Judgment, Doc. Nos. 43 and 47, and (2) HAUA’s
and Yuen’s Motion for Joinder, Doc. No. 50. Based on
the following, the court DENIES in part and GRANTS in part
Defendants’ Summary Judgment Motions. The court GRANTS
HAUA’s and Yuen’s Motion for Joinder.
began working for HGEA’s Maui Division Office as a
fulltime Union Agent on February 2, 2004. Doc. No. 44,
HGEA’s Concise Statement of Facts (“CSF”)
¶¶ 1-2. HGEA’s Maui Division is a small
office with only a handful of employees. See Doc.
No. 68-25, Pl.’s Ex. 23 (indicating that HGEA’s
Maui Division office presently employs four people). As a
Union Agent, Plaintiff’s work was supervised by
HGEA’s Maui Division Chief. Doc. No. 44, HGEA’s
CSF ¶ 6. According to Plaintiff, he “met
expectations or [was] outstanding in every performance or job
review during his 10 years with HGEA.” Doc. No. 70,
Pl.’s CSF ¶ 3.
June 17, 2014 -- several months after Plaintiff’s
ten-year anniversary with HGEA -- HGEA promoted Michele Mitra
(“Mitra”) from her position as Union Agent to
Maui Division Chief. Doc. No. 44, HGEA’s CSF ¶ 7;
see also Doc. No. 44-4, Declaration of HGEA Union
Agent Tehani Nunez (“Nunez Decl.”) ¶ 3
(“Mitra was transitioning job roles from Union Agent to
Division Chief”). Though not entirely clear, it appears
that after Mitra’s promotion, there were only two
full-time Union Agents at HGEA’s Maui Division Office:
Tehani Nunez and Plaintiff. See, e.g., Doc. No.
44-4, Nunez Decl. ¶¶ 2-4 (implying that Nunez and
Plaintiff were HGEA’s only two Union Agents on Maui).
See also Doc. No. 68-25, Pl.’s Ex. 23
(indicating that HGEA’s Maui Division office presently
employs only two Union Agents).
2, 2014, Mitra held a meeting with Nunez and Plaintiff.
See Doc. No. 44-4, Nunez Decl. ¶ 2; Doc. No.
68-1, Declaration of Marc-Andre Kirchhof (“Pl.’s
Decl.”) ¶ 3. The parties dispute what happened at
this meeting. According to HGEA, Mitra informed Nunez and
Plaintiff that, because of her promotion, she “would no
longer be able to take on new cases” and that new cases
would be assigned to Plaintiff and Nunez. Doc. No. 44-4,
Nunez Decl. ¶ 2. Nunez says that Plaintiff “did
not take on new cases” and that “new cases were
assigned to HGEA Union Agents on Oahu and [Nunez].”
Id. ¶ 4.
contrast, Plaintiff says that “[t]here was no
discussion of work assignments at this meeting.” Doc.
No. 68-1, Pl.’s Decl. ¶ 3. Instead, Plaintiff
states that the July 2, 2014 meeting involved Nunez
describing “an issue with a particularly uncooperative
member” and that Mitra “immediately inquired
whether the member was ‘white.’”
Id. Plaintiff says that “[a]fter the meeting
[he] complained to [Mitra] about her racist comments”
and said “that it made [him] uncomfortable.”
Id. Plaintiff further claims that he “always
volunteered” to accept work, Doc. No. 44-14,
HGEA’s Ex. 10 (“Pl.’s Dep.”) at
69:14-15, and that he “never refused to take on work,
cases, assignments, or any other tasks when asked to do so by
a superior.” Doc. No. 68-1, Pl.’s Decl. ¶
August 2, 2014 -- a Saturday -- various HGEA employees,
including Plaintiff, agreed to participate in a political
canvassing event. Plaintiff emailed Mitra at 11:15 a.m., and
stated: “FYI: I am not able to come to the 8/2
Ka’ala canvassing this
morning.” Doc. No. 44-15, HGEA’s Ex. 11
(emphasis added). That same day, Nunez “observed
[Plaintiff] playing soccer” at H.A. Baldwin Park,
Doc. No 44-4, Nunez Decl. ¶ 5, and it appears that Nunez
subsequently reported Plaintiff’s soccer activities to
HGEA. Doc. No. 48-1, Declaration of Michael Yuen (“Yuen
Decl.”) ¶ 57. HGEA never contacted Plaintiff about
missing the August 2, 2014 event. Doc. No. 68, Pl.’s CSF
the next Monday (August 4, 2014) through Thursday (August 7,
2014), Plaintiff was out sick. Doc. No. 44-11, HGEA’s
Ex. 7, Timesheet. On August 8, 2015 (Friday), all HGEA
offices were closed unexpectedly due to “severe weather
conditions” caused by a hurricane. Doc. No. 44-17,
HGEA’s Ex. 13, Employee Bulletin.
August 9, 2014 -- another Saturday -- various HGEA employees,
including Plaintiff, agreed to participate in a phone banking
event for a political race. Doc. No. 44-14, Pl.’s Dep.
at 88. Plaintiff did not participate,  id., and
that same day, Nunez “observed [Plaintiff] standing on
the sidelines of the soccer field, ” Doc. No. 44-4,
Nunez Decl. ¶ 6, and apparently reported
Plaintiff’s soccer activities to HGEA. See
Doc. No. 48-1, Yuen Decl. ¶ 57. HGEA never contacted
Plaintiff about missing the August 9, 2014 event. Doc. No.
68-1, Pl.’s Decl. ¶ 13.
August 11, 2014 through September 4, 2014, Plaintiff missed
work while on sick leave. Doc. No. 44, HGEA’s CSF ¶
20. During this period, Plaintiff submitted weekly
doctor’s notes to HGEA. Id. ¶ 21.
Plaintiff says he was available by phone and email. Doc. No.
68-1, Pl.’s Decl. ¶ 8. HGEA claims, however, that
“[w]hile on sick leave, Plaintiff’s location and
whereabouts were unknown.” Doc. No. 68-17,
Pl.’s Ex. 15 at 12.
morning of September 3, 2014, Plaintiff emailed HGEA
explaining that he was “still out sick due to
illness.” Doc. No. 68-3, Pl.’s Ex. 1. The
doctor’s note attached to Plaintiff’s email
stated that Plaintiff should “continue off work until
9/10/14 due to occupational stress.” Id.
terminated Plaintiff by letter dated September 4, 2014. Doc.
No. 44-22, HGEA’s Ex. 18, Termination Letter.
HGEA’s termination letter did not provide a reason for
Plaintiff’s termination, id., and HGEA admits
that “Plaintiff was not contacted or warned to discuss
his employment status” prior to his termination. Doc.
No. 68-17, Pl.’s Ex. 15 at 12.
September 8, 2014, Plaintiff received HGEA’s
termination letter. Doc. No. 68-1, Pl.’s Decl. ¶
14. Plaintiff was “confused, surprised and shocked,
” id. ¶ 15, and “couldn’t
believe it and had no idea why” he was terminated.
Id. Plaintiff then emailed Wilbert Holck
(“Holck”), HGEA’s Executive Director, and
requested “in writing the specific reasons of the
termination action.” Doc. No. 44-24, HGEA’s Ex.
20. According to HGEA, Holck sent Plaintiff a responsive
letter on September 9, 2014 stating: “Your employment
with HGEA was terminated effective September 4, 2014 due to
your behaviors that displayed a disregard for your position
as a Union Agent IV and significantly impacted the HGEA Maui
Division Office.” Doc. No. 44-25, HGEA’s Ex. 21.
Plaintiff denies ever receiving this letter. Doc. No. 68-1,
Pl.’s Decl. ¶ 17.
his employment with HGEA, Plaintiff was a member of HAUA.
Doc. No. 44, HGEA’s CSF ¶ 3. “HAUA is a
labor union that serves as the exclusive bargaining agent for
Union Agents employed by HGEA.” Id. ¶ 4.
The relationship between HGEA and HAUA is governed by a CBA,
id. ¶ 5, and “any conflict between the
provisions of [the CBA] and any directive of [HGEA]”
must be resolved in favor of the CBA. See Doc. No.
44-8, CBA at 1 (“Article 2 - Conflict”).
the CBA, HGEA cannot discipline or discharge HAUA members
“without proper cause.” See Id. at 5
(“Article 12 - Discipline and Discharge”). HAUA
members also have certain rights with regard to HAUA, such as
the right to HAUA representation for grievances that arise
with HGEA that are covered by the CBA. See Id. at 2
(“Article 4 - Union Representation”); see
also Id. at 21-23 (“Article 43 - Grievance
Procedure”). Toward that end, the CBA outlines a formal
three-step grievance procedure: In Steps 1 and 2, the HAUA
member is entitled to meet with an HAUA Representative and
HGEA’s “island division chief or [her]
designee” to discuss the grievance. Id. at
21-22. “If the grievance is not resolved at Step 2 and
[HAUA] desires to proceed with arbitration, it shall serve
written notice on [HGEA] . . . . of its desire to arbitrate
within ten (10) working days after receipt of [HGEA’s]
decision at Step 2.” Id. at 22.
HAUA’s representation from September 8th through
September 8, 2014, Plaintiff emailed HAUA’s President
and Representative, Michael Yuen (“Yuen”), on two
occasions. First, Plaintiff told Yuen that he would like to
file a grievance against HGEA for wrongful termination in
violation of Article 12 of the CBA. Doc. No. 48-3,
HAUA’s Ex. 2. Plaintiff’s second email requested
that Yuen include nine additional violations of the
CBA. Doc. No. 48-6, HAUA’s Ex. 5.
September 8, 2014 through October 6, 2014, Plaintiff and Yuen
regularly communicated. To begin, Yuen sent Plaintiff a draft
Step 1 Grievance for Plaintiff’s consideration on
September 8, 2014, and indicated he would file the Step 1
Grievance with HGEA as soon as Plaintiff approved
Yuen’s draft. Doc. No. 48-7, HAUA’s Ex. 6.
Plaintiff then suggested edits to Yuen’s draft. Doc.
No. 48-8, HAUA’s Ex. 7.
September 10, 2014, Yuen emailed Plaintiff with a revised
draft. See Doc. No. 48-9, HAUA’s Ex. 8. Yuen
I continue to have concerns regarding your request to list
articles other than Article 12 - Discipline. Because [HGEA]
did not provide a reason for the discharge, citing other
articles could draw attention away from the employers (sic)
lack of reason for the discharge and open avenues for the
Employer to fabricate reasons for the discharge. However, per
your request I will continue to list all the articles you
Id. Plaintiff requested that Yuen file the grievance
as drafted. Doc. No. 48-10, HAUA’s Ex. 9. Three days
later, Plaintiff emailed Yuen:
For the record, HAUA or you as the representative need to
exactly identify the exact/specific reasons of my wrongful
termination so we can establish the proper defense
strategies. With HGEA’s certified letter dated
September 4, 2014 and received by me on the 8th, it does not
identify these nor I ever was (sic) informed prior of any
pending investigation or other matters etc. Please no time
extensions for the grievance information!
Doc. No. 48-11, HAUA’s Ex. 10.
September 15, 2014, Yuen filed Plaintiff’s Step 1
Grievance with HGEA. Doc. No. 48-12, HAUA’s Ex. 11. The
The discharge notice came as a surprise without any warning
of the charges against [Plaintiff], or any explanation of
[HGEA’s] evidence supporting the action. The action
appears to have been taken in the absence of any formal
investigation and most importantly the opportunity for the
[Plaintiff] to present an explanation of his story before the
action was taken. We contend the [Plaintiff’s]
discharge from employment was without just and proper cause
and violated the . . . CBA.
Id. HAUA also requested “a grievance meeting
and legible copy of the following information be provided
within seven (7) working days as stipulated in Article 43 -
Grievance Procedure of the aforementioned subject CBA.”
Id. Specifically, HAUA asked for:
1. All documents, including but not limited to all
memorandums, reports, investigations, letters, statements,
correspondence, notes and tape recordings that formed the
basis for the discharge action taken against the [Plaintiff].
2. All material utilized in educating employees of the
meaning and proper interpretation of the policies and
procedures, rules and regulations upon which their conduct
will be judged.
3. All prior disciplinary actions involving the same or
similar violations for which other employees were
4. All documents that established that [HGEA] forewarned the
[Plaintiff] of the specific policy/procedure, rule/regulation
for which he is being disciplined, and that further
violations would lead to disciplinary action.
5. List of all witnesses involved in the investigation; by
name, position title, place of employment, and daytime
6. [Plaintiff’s] performance evaluations for the past
two (2) years.
7. All documents [HGEA] intends to introduce during the
hearing of this matter.
Id. According to Plaintiff, neither he nor HAUA
“received any information or documentation pursuant to
the Step 1 [G]rievance letter.” Doc. No. 68-1,
Pl.’s Decl. ¶ 18.
days later, on September 17, 2014, HAUA and HGEA mutually
agreed to waive the Step 1 Grievance Meeting and move
Plaintiff’s grievance to Step 2. Doc. No. 48-13,
HAUA’s Ex. 12. That same day, Yuen filed a Step 2
Grievance that was substantively identical to the Step 1
Plaintiff and Yuen continued to communicate regularly. For
example, on September 18, 2014, Yuen asked Plaintiff to
provide a rationale for the various CBA Articles identified
in the Step 2 Grievance. Doc. No. 48-15, HAUA’s Ex. 14.
That same day, Yuen sent Plaintiff another email stating:
HAUA has not received any grievance information and I do not
believe [HGEA] has a clear reason stated or any hard evidence
to support the discharge action. [HGEA] appears to have acted
without any due process afforded to you. Absent any hard
evidence on the part of [HGEA], their case looks very
damaging and waiting for information only delays justice.
. . . .
In preparation for the Step 2 meeting, our first goal is to
challenge [HGEA’s] discharge action absent due process
. . . . [HGEA] needs to prove how they acted with just and
proper cause. Absent written reason for the discharge or hard
evidence to support the action, our remedy is clear.
Immediate reinstatement to your position and make you whole.
The sooner we get to this point the better.
Beyond Article 12 - Discipline; you may argue the articles
you wanted listed. Although I do not agree with raising or
arguing those articles, you seem to have a plan and
I’ll defer to you to present your rationale and
evidence . . . . Should you prefer to provide me with your
rationale and evidence on the articles violated[, ] I will
present on your behalf. Let me know which you prefer.
I will be pushing to have the Step 2 meeting in a timely
manner and am prepared to move the grievance to arbitration.
I will need your help on how we proceed thereafter as it will
involve financing the case.
Doc. No. 48-17, HAUA’s Ex. 16.
September 24, 2014, Plaintiff emailed Yuen requesting an
update “on the evidence requested that [HGEA] used to
justify the termination action.” Doc. No. 48-19,
HAUA’s Ex. 18. Two hours later, Yuen responded that
HGEA “has yet to provide any written reason or any
grievance information. Absent any, [HGEA’s] discharge
action appears [to be] without just and proper cause.”
Id. The next day, on September 25, 2014, Plaintiff
emailed Yuen asking him to identify “exactly what
specifics you have done to push the issue on releasing [the
grievance] information[.]” Doc. No. 48-20, HAUA’s
October 1, 2014, HGEA confirmed that it would hold a Step 2
Grievance Meeting on October 7, 2014. See Doc. No.
48-21, HAUA’s Ex. 20. That same day, Plaintiff emailed
I am still concerned in regards to your response that HAUA
did not receive any grievance information and still wants to
go ahead with this meeting.
All information from HGEA should be in writing and be given
prior [to] any grievance meeting [and] I don’t feel
comfortable with this format.
In my experience as a prior Union Agent, I never proceeded
with a grievance meeting if the Employer did not provided
(sic) any and all information they used to determine their
adverse actions, why in my case it would be different?
Why are you trying to push this meeting and not pushing the
grievance information requested as the grievance stated,
You further state that it appears [HGEA] conducted the
discharge without just and proper cause, if you are not sure
and HGEA is not forthright providing such requested
information this is very concerning, also it appears HGEA is
playing a game.
Please pursue another letter or grievance to HGEA requesting
such pertinent information and if not provided within a
timely fashion you ...