The opinion of the court was delivered by: Pollak, J.
Plaintiff Aristides Martinez brought this action pro se against the International Brotherhood of Electrical Workers -- IBEW Local Union No. 98 ("the Union"), the labor union that represented him while he worked at WTXF29, a Fox Television station in Philadelphia. He alleges that the Union failed to represent him properly in violation of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401 -531, and § 301 of Labor Management Relations Act (LMRA), 29 U.S.C. § 185. He further brought claims against the Union for national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c); for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626; and for both forms of discrimination under the Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. §§ 951 - 963. Finally, Martinez charges the Union with negligent infliction of emotional distress.
This action is related to a civil rights suit plaintiff brought against the corporate owners of WTXF29. That suit also was before this court and was resolved by a grant of summary judgment to the defendant employers. Martinez v. Fox Broad. Co., Civ. No. 06-04537, 2008 WL 4425099 (E.D. Pa. Sept. 30, 2008).
The Union has submitted a motion for summary judgment (Docket No. 31). For the reasons that follow, the court will grant the motion.
As many of the circumstances pertinent to this suit were operative in the plaintiff's suit against his employers, the court will recite some of the facts with concision and incorporate the factual narrative from the disposition of the earlier action, Fox, 2008 WL 4425099.
Martinez describes himself as "a Hispanic America man born in Bogota, Columbia." Pl. Certification ¶ 2. WTXF29 hired him as a video editor in 1996. Born in 1932, Martinez was sixty-four when he started with Fox.
In 2000, technical personnel at WTXF29 formed a local of the International Brotherhood of Electrical Workers. Pl. Cert. ¶ 9. Martinez resisted becoming a member of the Union. Id. He joined in the wake of a four-year collective bargaining agreement between WTXF29 and the Union that required individuals in his position to be Union members. Id.; Def. Ex. 1, Collective Bargaining Agreement (CBA), Art. I § 3. The CBA provided WTXF29 broad management rights over personnel and operations, but created a grievance procedure for any discipline against, or discharge of, a Union member. CBA, Art. I § 5, Art. II §§ 1-2. During the period of time at issue in this lawsuit, Union members enjoyed the protections and benefits outlined in the agreement regarding their employment and enjoyed the protections and benefits within the Union outlined by the Union's "By Laws" booklet and the IBEW constitution. CBA; Pl. Exs. 1, 10.
Martinez's work life suffered from interpersonal conflicts, particularly with his Union brethren. Plaintiff contends that he was subject to "hostility, resentment, and contempt" as well as "unfair treatment" by fellow Union members. Am. Compl. ¶ 21. He alleges that one Union shop steward failed to stand up for him following a verbal attack by a manager and that another refused to furnish copies of the CBA or Union constitution that Martinez requested. Id. at 25, 27. He states that a fellow Union member, Jamel Northern, carried out a campaign of harassment against him, focused on Martinez's age and ethnicity; he further contends that Union leadership failed to intervene and stop the harassment. Id. at 49, 47. Some incidents with Northern were addressed and resolved by WTXF29, Pl. Exs. 9, 12, but the conflict continued. Pl. Ex. 16.
On July 11, 2003, after a few years of adequate work, plaintiff received a written warning for poor job performance. Def. Ex. 2. Martinez received a second written warning on September 17 that outlined a series of job errors. Def. Ex. 3. A November 18, 2003 performance warning followed. Def. Ex. 4. Then on February 13, 2004, WTXF29 issued a "last and final warning" to Martinez for his unexcused failure to come to work on Super Bowl Sunday. Def. Ex. 5. All the memoranda indicated that his poor performance or misconduct could result in termination. None of these warnings, however, led to immediate suspension or firing.
Martinez wrote a letter to Larry DelSpechio, business agent for the Union, on July 15, 2003 that outlined the July 11 warning he received and requested a meeting to discuss the notice as well as concerns Martinez had about staff, management, and operations problems. Pl. Ex. 2. DelSpechio met informally with the plaintiff, investigated the situation, and advocated for Martinez informally with management. DelSp. Dep. at 51-54. DelSpechio did not file a grievance on behalf of the plaintiff. Martinez wrote DelSpechio a second time on November 29, 2003 to tell his side of the story concerning his other recent reprimands and to make clear what Martinez thought was required to protect Union members like himself from erroneous accusations of error. Pl. Ex. 3. Martinez did not request any kind of relief or advocacy in the letter. Id. Union representatives, including DelSpechio, again met with Martinez and with station management informally about the September and November warnings, and no formal grievance was filed by the Union. DelSp. Dep. at 91, 148-49. DelSpechio discussed Martinez's concerns about various conditions at the station, but opted not to bring those concerns to management. Id.
On April 21, 2004, WTXF29 suspended Martinez after he verbally abused a co-worker and refused to participate in the subsequent investigation. Pl. Ex. 14; Def. Ex. 6. Plaintiff contends that the Union provided minimal representation to him during the investigation and questioning. Pl. Dep. at 242-43 (discussing Union representation during Linton investigation). The station fired Martinez on May 4, 2004, and the Union filed a grievance on his behalf on May 6, 2004. Def. Exs. 7, 8. On May 14, 2004, WTXF29 rejected the grievance. The Union did not pursue arbitration under the CBA based on DelSpechio's determination that (1) the station properly fired Martinez for cause, and (2) "the Union could not prevail in arbitration." DelSp. Decl. ¶ 4.
After his April 21, 2004 suspension, but before he was fired on May 4, Martinez wrote a letter of protest to the director of human resources at WTXF29; in it, he lodged a fresh complaint against Jamel Northern. Pl. Ex. 14. He also filed a formal complaint with the Union about Northern. Pl. Ex. 16. The Union reviewed the complaint and dismissed all the charges in a letter dated May 4, 2004. Pl. Ex. 17.
In the fall of 2004, Martinez filed complaints against WTXF29 with both the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. The record does not contain evidence that Martinez pursued further remedies within the Union or that he filed complaints against the Union with any state or federal agency. He filed the complaint in this lawsuit in October 2006; he amended the complaint in November 2007 to plead his LMRA and LMRDA claims. This court has jurisdiction under 28 U.S.C. § 1331 for the federal claims and supplemental jurisdiction under 28 U.S.C. § 1367 for the state-law claims.
The Union moves for summary judgment under Fed. R. Civ. P. 56. The Union contends that the LMRA and LMRDA claims are barred for failure to exhaust internal remedies as well as time-barred. With respect to plaintiff's discrimination claims under Title VII, the ADEA, and the PHRA, the Union contends that the claims are not supported by any evidence.
Summary judgment is appropriate where "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); IFC Interconsult, AG v. Safeguard Int'l Partners, L.L.C., 438 F.3d 298, 317 (3d Cir. 2006). Facts are material if they "bear on an essential element of the plaintiff's claim." Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (quoting Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)). Further, there is a genuine issue of material fact if "a reasonable jury could find in favor of the nonmoving party." Id.
A party seeking summary judgment carries the initial burden of informing the court of the basis for its motion and identifying the portions of the record that show that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In this instance, the non-moving party would bear the burden of proof at trial. Consequently, the moving party must show that the non-moving party cannot support his case with the evidence in the record. Celotex, 477 U.S. at 325. To rebut, the non-moving party must identify facts that create a genuine issue of dispute for trial. Fed. R. Civ. P. 56(e); Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 112 (3d Cir. 1996). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge .... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Claims brought under LMRA and LMRDA
The Union argues that plaintiff's LMRA and LMRDA claims must be dismissed for failure to exhaust internal remedies. Martinez responds that it was the Union's responsibility to initiate internal review and that his filing of an EEOC claim against his employer qualifies as administrative exhaustion for his LMRA and LMRDA claims.
"Under federal labor law, aggrieved employees must exhaust their [collective bargaining agreement] grievance and arbitration procedures before filing a complaint in federal court 'unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1537 (3d Cir. 1992) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)). The Third Circuit applies this rule to LMRA and LMRDA claims against a union and requires a plaintiff to exhaust all internal grievance and appeals procedures. Anjelino v. New York Times Co., 200 F.3d 73, 99 (3d Cir. 1999).
The Union, and Martinez's complaints about his representation, are governed by the IBEW constitution. The provision of the IBEW constitution that governed this dispute states in relevant part:
All charges against an officer or representative of a [local union] must be presented in writing, signed by the charging party, and specify the section or sections of this Constitution, the bylaws, rules or working agreement violated. The charges must state the act or acts considered to be in violation, including approximate relevant dates and places; and must be made within sixty (60) days of the time the charging party first became aware, or reasonably should have been aware, of the alleged act or acts.
Art. 26, § 8. The IBEW constitution then describes the review process in §§ 8 - 11 and describes an optional appeal process in §§ 12 - 18. Under the IBEW constitution, members can complain, and receive review of such complaints, when another member or a Union representative fails to fulfill his responsibilities to the Union or wrongfully causes economic harm to a Union member. Art. 28, § 1(5), 1(7). Martinez's complaints about the Union's alleged mishandling of, or inattention to, Martinez's employment and work ...