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SMITH v. GREYHOUND LINES

August 29, 1984

HERMAN SMITH, Plaintiff
v.
GREYHOUND LINES, INC., Defendant



The opinion of the court was delivered by: MANSMANN

 This action is before the Court on Defendant's Motion for Summary Judgment. For the reasons stated below, Defendant's Motion is granted in part and denied in part.

 FACTUAL AND PROCEDURAL BACKGROUND

 Plaintiff, Herman Smith, was employed for approximately 13 years as a clerk for Defendant, Greyhound Lines, Inc. Plaintiff's job required him to receive packages to be shipped from customers and either to accept cash or to charge the transaction to the shipper or receiver. Plaintiff is a member of Local 1063 of the Amalgamated Transit Workers Union. The union has a collective bargaining agreement with Defendant.

 On March 22, 1982, a salesman from Rawlplug Company brought two packages to Plaintiff's counter. Plaintiff marked the receipt "charge." When Defendant later billed the company, a Rawlplug Company official informed Defendant that the company had no charge account at Greyhound and that the salesman had paid cash.

 Howard Kratovel, terminal manager, began an investigation of the incident. Mr. Kratovel called the Rawlplug Company salesman who had delivered the packages and was told that the salesman had indeed paid cash. Mr. Kratovel also called upon Plaintiff to explain the discrepancy. The investigation culminated with Plaintiff's termination on May 20, 1982. At that time, Plaintiff was given a notice outlining the reason for his discharge. The notice stated:

 
On March 22, 1982, you accepted two packages and shipped them to Erie, PA., under Prepaid NBO Busbills #200 231 199 3 and 200 231 198 2. The shipper paid cash in the amount of $32.60 ($16.30 each). Since you failed to report or turn in the cash, and due to the serious nature of this offense, you are hereby discharged from the services of Greyhound Lines, Inc., effective May 20, 1982.

 Plaintiff pursued a grievance relative to this discharge through union procedures.

 On June 9, 1982, Plaintiff met with members of Defendant's management and with union representatives to discuss the discharge. That evening Joe O'Shea, union president, called Plaintiff and conveyed Defendant's offer of a polygraph examination. Mr. O'Shea told Plaintiff that if he passed the polygraph exam, Defendant would reinstate him with backpay. Mr. O'Shea and Defendant claim the deal also included a promise to drop the grievance if Plaintiff failed the test. Plaintiff denies ever hearing about this portion of the bargain.

 Plaintiff initially refused to take the polygraph. After consulting with his wife, who told him he had nothing to lose, Plaintiff agreed to take the test. On June 23, 1982, Plaintiff went to a room in the Hilton Hotel, signed a release, and took the polygraph test. The examiner reported to Defendant that Plaintiff had failed the test. Subsequently, Plaintiff's grievance was dropped.

 On February 17, 1983, Plaintiff filed a complaint alleging wrongful discharge, defamation, assault and battery, and invasion of privacy in the Court of Common Pleas of Allegheny County. On Defendant's petition for removal, the case was removed to this Court on the basis of diversity of citizenship and the presence of a federal question, i.e., that Plaintiff's wrongful discharge claim is solely cognizable under section 301 of the Labor-Management Relations Act (the "LMRA"), 29 U.S.C. ยง 185 (1978). Defendant now moves for summary judgment.

 DISCUSSION

 Under Fed.R.C.P. 56(c) summary judgment may be entered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See also Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984). The Court of Appeals for the Third Circuit has made it clear that any doubts as to the existence of genuine issues of fact are to be resolved against the moving parties. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). Further, the facts and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Continental Ins. Co. v. Bodie, 682 F.2d at 438; Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).

 Under Rule 56(e), however, a party resisting a summary judgment motion may not rest upon the mere allegations or denials of his pleading. Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). In opposing the motion, his response "must set forth specific facts showing that there is a genuine issue for trial. If he does not ...


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