Union's More Aggressive Representation Of Similarly Situated Men Supported Gender Discrimination Claim
Before she was terminated for two alleged incidents of profanity, Cheryl Beck was employed as a scanning coordinator by Fry's Food Stores. Beck's employment was governed by the collective bargaining agreement between Local 99 of the United Food and Commercial Workers Union and Fry's which prohibited the use of “profane, abusive or threatening language toward fellow employees.” The collective bargaining agreement also provided that an employee could not be disciplined without “just cause.”
On April 13, 2001, Beck had a conversation with Bob Evans in the parking lot of Fry's Prescott store before reporting to work. Evans, an employee with whom Beck previously had a romantic relationship, had recently been promoted. The conversation became heated when Beck implied that Evans' recent promotion was due to favoritism, not merit. Evans subsequently submitted a statement to Fry's management accusing Beck of using profanity in the course of this conversation. No one else witnessed the incident.
Acting upon Evans' statement, Fry's suspended Beck. Beck reported this suspension to Barbara Cleckner, Local 99's field representative. A meeting was scheduled on April 20, 2001, among Beck, Cleckner, and Fry's, for the administration of any discipline. Prior to the meeting, Fry's management informed Cleckner that it intended to terminate Beck on the ground that Beck had a “history of a foul mouth.” In eight and a half years of working for Fry's and its predecessor Smith's, Beck had not previously been disciplined for using profanity.
In her meeting with Cleckner prior to the scheduled meeting with Fry's management, Beck denied using profanity in her April 13, 2001 conversation with Evans. She also maintained that any statements made in the course of her conversation with Evans were not actionable because the conversation occurred while Beck was off duty.
At the April 20, 2001 meeting, Fry's issued Beck a “Final Written Warning,” which provided, in relevant part, that “any further conduct involving the use of profanity, inappropriate comments or malicious gossip will result in termination.”At trial, Beck testified she asked Cleckner to file a grievance contesting the warning. Knowing of both Fry's intent to terminate Beck, and of Beck's health problems, Cleckner promised to file Beck's requested grievance but she never did so.
On July 5, 2001, Beck had an argument with Cecil Carr, the store secretary, over a pay error. Carr asserted that Beck used profanity in the course of the argument, an accusation Beck denied. Fry's credited Carr's version of the incident and terminated Beck on July 9, 2001.
At Beck's request, Local 99 filed a grievance contesting Beck's termination. Beck provided Local 99 with a six-page statement setting forth the basis for her grievance. A representative from Fry's Human Resources Department conducted an investigation of the events leading up to Beck's termination and provided Local 99 with copies of relevant notes, records, and employee statements gathered in the course of that investigation. In September, Local 99 contacted its attorney to determine whether it was legally required to demand arbitration of Beck's grievance. The attorney provided an opinion letter stating that, in his view, a single incident of alleged profanity would not constitute just cause for discharge. However, the attorney opined that an arbitrator would “almost certainly” conclude that termination for a second incident of profanity constituted just cause when the first incident resulted in an unchallenged written warning less than three months earlier. Local 99 subsequently informed Beck that it would not arbitrate her grievance.
Beck subsequently filed suit, alleging that Local 99 discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. The case proceeded to a bench trial.
As the plaintiff in a Title VII disparate treatment case, Beck bore the burden of proving that Local 99's actions were motivated by intentional sex discrimination. Beck sought to carry this burden by demonstrating that the grievances of two similarly situated men were handled by the same Local 99 representatives with greater zeal than her grievances and the grievance of another similarly situated female. Specifically, Beck introduced evidence that Cleckner and other Local 99 representatives aggressively represented Larry Molitor, a male employee who had been the subject of multiple disciplinary actions, including discipline for using “profane language, racially discriminatory remarks, and threatening comments,” for threatening a co-worker with a twelve-inch knife, and for “unprofessional conduct, threatening of employees, and throwing product and equipment.”
Second, Beck introduced evidence that Local 99 aggressively represented Don Pulaski, a male employee who had been suspended after he had a tussle with another employee. The union successfully represented Pulaski, who was reinstated by Fry's.
Finally, Beck introduced evidence that Local 99 did not aggressively represent Lois Reinhold, a female employee, who was terminated for allegedly extending the expiration date on some meat. Although there was evidence that the male employee who replaced Reinhold, and the male employee who had worked with Reinhold, engaged in the same conduct and were not terminated, the union did not use this comparison to help Reinhold win her job back.
The district court inferred from Beck's evidence regarding the three employees that Local 99's decisions not to pursue Beck's grievances were fueled by discriminatory animus. Having found that the union's actions were motivated by sex discrimination, the district court entered judgment in favor of Beck on her Title VII claim. On appeal, the 9th Circuit affirmed.
Beck v. United Food Union
The 9th Circuit Court of Appeals’ jurisdiction includes California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii.