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Burns v. Salem Tube

August 7, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court for consideration and disposition is the MOTION FOR SUMMARY JUDGMENT (LIABILITY), with brief in support (Document Nos. 25 & 26) filed by Plaintiff Jeffrey Burns, the MOTION FOR SUMMARY JUDGMENT, with brief in support (Document Nos. 29 & 30) filed by Defendant United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIOCLC, Local 3713-05, and the MOTION FOR SUMMARY JUDGMENT, with brief in support (Document Nos. 33 & 34) filed by Defendant Salem Tube, Incorporated. The issues have been fully briefed, and the matter is ripe for disposition. For the reasons that follow, Defendants‟ Motions for Summary Judgment will be GRANTED, and Plaintiff‟s Motion for Summary Judgment will be DENIED.


Plaintiff Jeffrey Burns ("Burns") was employed by Defendant Salem Tube, Incorporated ("Salem") between February of 2000 and August 30, 2007. On or about August 1, 2006 and continuing during all relevant times, Burns, Salem and the United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Local 3713-05 ("Union") were parties to a collective bargaining agreement ("CBA"). As a party to the CBA, Burns is entitled to the benefit of the agreement and may seek to enforce the provisions of the agreement.

Prior to his first termination, Burns had been disciplined by Salem on numerous occasions for poor workmanship and excessive absenteeism. (Doc. No. 35 at ¶¶ 5-12). On August 16, 2005, Burns was terminated from employment due to several alleged unexcused absences. (Doc. No. 28 at ¶ 7). However, at the urging of the Union, Salem agreed to reinstate Burns under a "Last Chance Agreement" ("LCA"), which both Burns and Salem signed. (Doc. No. 35 at ¶¶ 14-16). At all times relevant to this lawsuit, Burns was subject to the LCA and could be terminated for a breach of either the CBA or the Plant Rules. (Doc. No. 28 at ¶ 6). Ultimately, Burns was terminated by Salem for allegedly violating Plant Rule No. 18 (Excessive Absenteeism) and Plant Rule No. 7 (Deliberate Lying). (Id. at ¶ 8). This second termination occurred on August 31, 2007. (Id.).

In August 2007, Burns worked the 11:00 p.m. to 7:00 a.m. shift at the Salem plant in Greenville, Pennsylvania. On or about July 12, 2007, Burns received a jury summons by mail from the Court of Common Pleas of Mercer County, Pennsylvania, which directed Burns to be available to report for jury duty daily between August 14, 2007 and August 17, 2007. Pursuant to procedures established by both the Union and Salem, Burns notified plant general foreman David Emmett of the jury duty summons and provided him a copy of same. (Doc. No. 28 at ¶ 15). It was noted on the weekly schedule that Burns had jury duty between August 14, 2007 and August 17, 2007. Burns admits that no one from Salem ever told him not to serve on jury duty, nor did anyone tell him that serving on jury duty was frowned upon or that there was any problem with serving on jury duty. (Doc. No. 35 at ¶ 74); (Doc. No. 44 at ¶ 74).

Burns was instructed to appear at the Mercer County Court of Common Pleas beginning Tuesday, August 14, 2007, where he was considered for various jury panels, but was not selected. (Doc. No. 28 at ¶¶ 18-19). Upon dismissal, Burns was given both verbal and written juror instructions, both of which directed that he call in after 5:30 p.m. each day in order to find out if he was required to report for jury service the following day. (Id. at ¶ 21). Rather than calling on the evening of August 14 as directed, Burns waited until 8:00 a.m. on the morning of Wednesday, August 15, 2007 to call the courthouse. (Id. at ¶ 24). Although doing so did not violate the procedures for juror call-ins, waiting until 8:00 a.m. prevented Burns from reporting to work for his Wednesday shift, which ran from 11:00 p.m. Tuesday until 7:00 a.m. Wednesday. (Id. at ¶¶ 22-23). When Burns called the courthouse at 8:00 a.m. on Wednesday, he was told not to report to the courthouse, but was told to report the following day, Thursday, August 16, 2007. (Id. at ¶ 24). On Thursday, Burns was again considered for various jury panels, but was again not selected to serve on a jury. (Id. at ¶ 26).

Following his dismissal on Thursday, Burns again waited until 8:00 a.m. on Friday before calling the courthouse, at which time Burns maintains that a pre-recorded message informed him that his jury service had concluded.*fn2 (Id. at ¶ 27). In total, Burns was absent from work for four days, including August 14, 15, 16 and 17, and he returned to work on the night of Sunday, August 19, 2007, for his Monday workday shift. (Doc. No. 38 at ¶¶ 21, 24).

During the week following his jury duty (August 20-24, 2007), questions about Burns‟ absences arose because the Mercer County Court of Common Pleas reported to Salem that Burns only reported for jury duty on August 14 and 16, while Salem‟s payroll data indicated four absences. (Doc. No. 35 at ¶ 34). Burns was questioned by company representatives regarding his absences the previous week, and Burns reported that the absences were due to his jury service. (Id. at ¶ 25).

On August 27, 2007, Burns met with Salem operations manager Jerry Stoyer ("Stoyer"), Union president David King ("King"), and Union representative Todd Barber ("Barber") regarding the discrepancies between Burns‟ reported jury service and his actual absences. (Doc. No. 35 at ¶ 41). At that meeting, Burns again reported that he had been told to call in at 8:00 a.m. every morning and was therefore unable to work any of the days between August 14 and August 17, 2007. (Doc. No. 35 at ¶ 43). At that same meeting, Stoyer explained to Burns that Salem had contacted the Mercer County court administrator, who indicated that Burns was instructed to call after 5:30 p.m. every day he served on jury duty. (Id. at ¶ 44).

Following the meeting on August 27, King asked if Burns could secure proof that he had received instructions to call at 8:00 a.m. as opposed to 5:30 p.m., and Burns agreed that he would try to do so. (Doc. No. 38 at ¶ 34). King and Barber both urged Burns to secure the requested proof as soon as possible. (Id. at ¶ 35).

Subsequent to the meeting on August 27, Burns never provided any additional documentation or proof to either Salem or the Union to support his statement that he had been told to call the courthouse at 8:00 a.m. each morning to check on his jury status for the day. (Id. at ¶ 37). Stoyer and Barber met again on August 30 to discuss Burns‟ status, however it is disputed whether or not Burns was present, or if he participated by telephone. (Id. at ¶ 40). Nevertheless, Burns had still not provided proof of his claim regarding what time he had been instructed to call, thus failing to explain two of his four absences. (Id. at ¶ 37).

At the August 30 meeting, Burns was offered the home telephone number of Maurice Keavney, the court jury administrator, so that he could substantiate his claim that he was told to call in at 8:00 a.m., however, Burns refused to take the number. (Doc. No. 35 at ¶ 48). King later asked Stoyer for additional time so that King could obtain the necessary documentation that Burns had failed to provide. (Doc. No. 38 at ¶ 44). Stoyer agreed to the additional time, and King subsequently contacted Keavney at his home and informed him that Burns was facing disciplinary action for the unexplained absences. (Id. at ¶¶ 45, 47). Both the Union and Salem contend that Keavney indicated that jurors were told to call in every day after 5:30 p.m. (Doc. No. 35 at ¶ 53). Burns was terminated from employment for alleged violations of the plant rules and the LCA, effective August 31, 2007. (Id. at ¶ 69).

After Burns was terminated, he met with King and the grievance chairperson for the Union, David Morrison ("Morrison"). (Id. at ¶ 61). At that meeting, King indicated that he believed that Burns‟ claim did not seem to have merit. (Id.). Despite the reservations about Burns‟ claim, Morrison called a meeting of the grievance committee to determine whether to file a grievance on his behalf. (Id. at ¶ 62). Morrison also invited David Docchio, a Union staff representative, to attend the meeting. (Id.). Burns alleges that he was not permitted to attend. (Burns Affidavit at ¶ 25). After the independent investigation made by the Union, and in consideration of the merits of the case, the grievance committee elected to not file a grievance on behalf of Burns. (Doc. No. 38 at ¶¶ 55-62). The committee found that because he was still subject to the LCA, no arbitrator would be willing to give Burns a "third chance." Id. Stoyer substantiated this finding when he testified that an employee on a LCA is held to a higher standard than other employees. (Doc. No. 40 at ¶ 39). The Complaint in this action was filed by Burns on February 26, 2008.


Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows: [Summary judgment] shall be rendered forwith 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.

Fed. R. Civ. P. 56(c). In interpreting Rule 56(c), the United States Supreme Court has stated:

The plain language.mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‟s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to a material fact," since a complete failure of proof concerning an essential element of the non-moving party‟s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).

An issue of material fact is genuine only if the substantive law identifies those facts as critical, and if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the moving party. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts, and issues of credibility against the moving party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).

When the non-moving party will bear the burden of proof at trial, the burden on the moving party may be "discharged by "showing‟ -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party‟s case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party, who may not simply rest on the allegations of the pleadings, but instead must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party‟s evidence ...

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