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Kirchhof v. Hawaii Association of Union Agents

United States District Court, D. Hawaii

May 20, 2016




         Plaintiff 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”)[1] actions amount to intentional infliction of emotional distress (“IIED”). Plaintiff seeks reinstatement, compensatory damages, and punitive damages.

         Currently 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.


         A. Factual Background

         1.Plaintiff’s HGEA Career

         Plaintiff 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.[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.

         Beginning 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).

         On July 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.

         By 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. ¶ 22.

         On August 2, 2014 -- a Saturday -- various HGEA employees, including Plaintiff, agreed to participate in a political canvassing event.[3] 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.”[4] Doc. No. 44-15, HGEA’s Ex. 11 (emphasis added). That same day, Nunez “observed [Plaintiff] playing soccer” at H.A. Baldwin Park, [5] 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.[6] Doc. No. 68, Pl.’s CSF ¶ 13.

         Beginning 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.

         On August 9, 2014 -- another Saturday -- various HGEA employees, including Plaintiff, agreed to participate in a phone banking event for a political race.[7] Doc. No. 44-14, Pl.’s Dep. at 88. Plaintiff did not participate, [8] 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.

         From August 11, 2014 through September 4, 2014, Plaintiff missed work while on sick leave.[9] 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.”[10] Doc. No. 68-17, Pl.’s Ex. 15 at 12.

         On the 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.

         HGEA 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.

         On 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.

         2.Plaintiff’s HAUA Membership

         Throughout 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”).

         Under 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.

         3.The Grievance Process

         a. HAUA’s representation from September 8th through October 6th

         On 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.[11] Doc. No. 48-6, HAUA’s Ex. 5.

         From 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.

         On September 10, 2014, Yuen emailed Plaintiff with a revised draft. See Doc. No. 48-9, HAUA’s Ex. 8. Yuen also wrote:

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 cited.

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.

         On September 15, 2014, Yuen filed Plaintiff’s Step 1 Grievance with HGEA. Doc. No. 48-12, HAUA’s Ex. 11. The Grievance contended:

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 disciplined.
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 telephone number.
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.

         Two 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 Grievance. Id.

         Meanwhile, 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.

         On 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 Ex. 19.

         On 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 Yuen:

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, please advise?
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 ...

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