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Badkin v. Lockheed Martin Corp.

United States District Court, W.D. Washington, Tacoma

May 22, 2019




         This matter comes before the Court on Defendant Lockheed Martin Corporation's (“Lockheed”) motion for summary judgment, Dkt. 20, and Defendant International Association of Machinists and Aerospace Workers, District 160 and Local Lodge 282's (“the Union”) motion for summary judgment, Dkt. 24.[1] The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motions for the reasons stated herein.


         On November 2, 2017, Plaintiff Vincent Lyle Badkin (“Badkin”) filed suit against Lockheed and the Union. Dkt. 1. Badkin claims Lockeed wrongfully terminated his employment and breached the Collective Bargaining Agreement (“CBA”) when it did so and the Union breached its duty to fairly represent him when his employment was terminated. Id. ¶ 25-28. On February 13, 2019, Lockheed and the Union both moved for summary judgment. Dkts. 20, 24. On March 4, 2019, Badkin responded to both motions. Dkt. 28. On March 7, 2019, the Union replied. Dkt. 31. On March 8, 2019, Lockheed replied. Dkt. 33. On March 12, 2019, Badkin filed a surreply. Dkt. 36.


         Badkin was employed by Lockheed as a senior missile craftsman and support mechanic at Naval Base Kitsap (“the base”) in Silverdale, Washington, and was a member of the Union. Dkt. 1, ¶¶ 8-9. Within the base, Badkin worked at the Strategic Weapons Facility Pacific (“SWFP”). Id. ¶ 9. The Union was Badkin's exclusive representative with Lockheed. Id.

         On May 10, 2016, Badkin arrived at his home to discover an acquaintance of his daughter had broken into their house. Id. ¶ 10 n.1. Badkin used his handgun to attempt to detain the acquaintance until the police arrived. Id. Badkin fired his gun near the acquaintance's feet. Id. The acquaintance called 911. Dkt. 20 at 3. Badkin fired seven shots into the acquaintance's car when he attempted to leave. Dkt. 1, ¶ 10 n.1. Badkin was arrested by the Kitsap County Sheriff's Office and detained on a charge of assault in the first degree. Id. ¶ 10; Dkt. 22-3. Badkin was scheduled to work on May 11-13 and 16-19. Dkt. 20 at 4 (citing Dkt. 22-5 at 10). On May 13, 2016, Badkin's daughter McKenna Badkin (“McKenna”) contacted Lockheed to inform them that he was in county jail and unable to report to work. Dkt. 1, ¶ 11; Dkt. 20 at 4 (citing Dkt. 22-5 at 3). McKenna spoke with Reshondra McInnis, a manager at Lockheed who was not Badkin's supervisor. Dkt. 20 at 4 (citing Dkt. 22-5 at 3). McKenna then left a voicemail for Troy Quick (“Quick”), Badkin's supervisor. Id. at 5 (citing Dkt. 22-5 at 3-4). On May 16, 2016, McKenna again contacted Lockheed to let them know Badkin was still in jail and did not wish to resign his position. Dkt. 1, ¶ 11. McKenna spoke with Lockheed Human Resources Manager Sheri Hendrix (“Hendrix”), who told McKenna that Badkin “must follow reporting procedures or his absences would indicate a resignation.” Dkt. 20 at 5 (citing Dkt. 22-5 at 4). On May 20, 2016, Badkin was released pending trial. Dkt. 20 at 4 (citing Dkt. 22-1 at 18).

         On May 18, 2016, Quick sent a letter to Badkin terminating his employment based on a failure to report for five scheduled workdays without valid justification. Dkt. 1, ¶ 12. The letter concluded that Badkin's conduct amounted to voluntarily resigning his position under Article 4, Section 2 of the CBA. Id. On May 25, 2016, the Navy revoked Badkin's access to the base. Dkt. 20 at 6 (citing Dkt. 22-14).

         Badkin talked to Union representative Bob Westbrook (“Westbrook”) about what had happened so that Westbrook could draft a grievance opposing Badkin's termination. Dkt. 1, ¶ 14; Dkt. 20 at 6 (citing Dkt. 22-1 at 29-30). Westbrook drafted the grievance for Badkin, including the “Corrective Action Desired” section, which reads:

If Mr. Badkin is absolved of wrong doing as provided in the allegations and charges brought against him from this incident, Lockheed Martin will provide a recommendation that his previous clearance and base access be reinstated, at which time he may be returned to work with no further penalty or loss of seniority, at the working rate commiserate [sic] with where he would have been had the incident never occurred. In the interim, Lockheed Martin agrees not to fight Mr. Badkin's application for unemployment.

Dkt. 20 at 6-7 (citing Dkt. 22-1 at 29-30; Dkt. 22-8). On June 15, 2016, Badkin reviewed and signed the grievance. Dkt. 22-1 at 29-31.

         On July 21, 2016, Westbrook emailed Badkin to let him know that Lockheed had offered settlement terms where if all charges were dropped or dismissed, Lockheed would permit Badkin to apply to available job openings and would not oppose his claim for unemployment benefits. Dkt. 1, ¶ 15; Dkt. 22-9 at 4. At this point, Badkin had already been approved for state unemployment benefits and asked the Union to reject this offer and continue the grievance because the proposed resolution put him “in no better position than he already was.” Dkt. 1, ¶ 16; Dkt. 22-9 at 3-4. On July 25, 2016, Westbrook responded “Ok. Just keep in mind that there is no guarantee that the union will take it to arbitration. Our attorney will review and let me know if he thinks the union would prevail in arbitration after LOCKHEED provides its formal response to the grievance.” Dkt. 22-9 at 3. On August 8, 2016, the Union and Lockheed agreed to settle Badkin's grievance on three terms: (1) Badkin's termination would be coded as a voluntary resignation; (2) if Badkin was cleared of all charges he could apply as an external candidate to any open position; and (3) Lockheed would not contest Badkin's right to collect unemployment benefits. Dkt. 1, ¶ 17; Dkt. 20 at 8 (citing Dkt. 22-8).[2] Badkin alleges that the Union led him to believe “that if he was absolved of the assault in the first degree charge and his access to Naval Base Kitsap was reinstated, that he would be reinstated at his previous position, ” but does not tie this belief to a specific event or communication with the Union. Dkt. 1, ¶ 18.

         On September 9, 2016, Badkin entered an Alford plea to a misdemeanor charge of unlawful carrying or handling of a firearm, and the prosecuting attorney dismissed the assault charge. Id. ¶ 19. Badkin did not consult with the Union before entering the plea. Dkt. 20 at 9 (citing Dkt. 22-1 at 72). On September 21, 2016 (“the September meeting”), Badkin met with Westbrook and Union Shop Steward Jamie Nevins (“Nevins”). Dkt. 20 at 9 (citing Dkt. 22-11). The parties dispute what was communicated at this meeting. Westbrook declares that he told Badkin that the Union's attorney “did not think the grievance was strong enough to prevail in arbitration” and that “the Union considered his grievance resolved and that we would not take any further action on the grievance.” Dkt. 26, ¶ 11. Westbrook also declares that after receiving this information, Badkin “was upset and threatened to sue.” Id. Badkin testified at his deposition that he does not recall threatening to sue the union and that it is false that the Union informed him that they would not take his grievance to the third step. Dkt. 25-1 at 19-20. Westbrook declares that Badkin sent him a text message a few days later that read in part “I'd like to apologize to you for being abrupt the other day but as you might understand it's hard to lose your career at this point in life . . . .” Dkt. 26, ¶ 12.[3]

         On January 23, 2017, Badkin received a letter from Captain E.A. Schrader, Commanding Officer of the base, reinstating his access to the base. Dkt. 1, ¶ 21. On April 26, 2017, Badkin informed Westbrook that his base access had been reinstated and he was ready to return to work under his “understanding that the union and Lockheed Martin agreed that I would get my job back after I was absolved of the assault charge and my access to Naval Base Kitsap was reinstated.” Id. ¶ 22; Dkt. 20 at 10 (citing Dkt. 22-9 at 10). Westbrook told Badkin that he had communicated Badkin's request to Lockheed and hoped they would “take quick action.” Dkt. 1, ¶ 22.

         On May 8, 2017, Badkin emailed Westbrook, requesting that if Lockheed did not respond to the request to reinstate him, Westbrook “let [him] know whether or not the union will take the next step in the grievance procedure, up to and including arbitration if necessary.” Dkt. 20 at 11 (citing Dkt. 22-9 at 12). Westbrook responded, stating “I'm sorry to report that there is a technicality in that you weren't absolved of the wrong doing from the Corrective Action Desired block, which you signed. Since you still have a misdemeanor Lockheed has closed the files on your case.” Dkt. 1, ¶ 23; Dkt. 20 at 11 (citing Dkt. 22-9 at 14)


         Lockheed and the Union move for summary judgment on two bases: (1) Badkin's claims are barred by the statute of limitations and (2) Badkin cannot meet his burden to prove both of the required prongs of his claim: that Lockheed breached the CBA and that the Union breached the duty of fair representation.

         A. Motions to Strike

         Each party asks the Court to strike evidence from consideration. Lockheed Martin asks the Court to strike evidence of negotiation from the summer of 2017 between one of its general counsels and Badkin's counsel regarding his reinstatement. Dkt. 33 at 4.[4] Lockheed argues that the evidence consists of settlement negotiations and cannot be used to establish liability in a case. Dkt. 33 at 5 (citing Navigators Ins. Co. v. Nat'l Union Fire Ins. Co., No. C12-0013-MJP, 2013 WL 4008826, at *6 (W.D. Wash. Aug. 5, 2013)). While the earliest cited email from Lockheed's counsel to Badkin's counsel does not explicitly discuss a threat of suit from Badkin, an email five days later on June 26, 2017 has the subject line “Badkin Settlement Discussions” and opens by stating “[a]s you know, we have had a series of telephone conversations for the purposes of potentially resolving Mr. Badkin's allegations of wrongful termination . . . .” Dkt. 29. The discussion of a series of conversations in the later email supports a reasonable inference that the prior email was also part of settlement negotiations for Badkin's wrongful termination claims. The Court finds that the contents of the emails support Lockheed's contention that they are settlement discussions inadmissible to prove liability under Fed.R.Evid. 408. Therefore, the Court grants Lockheed's motion to strike the relevant portions of Dkt. 29, Declaration of Ahmet Chabuk and the relevant portions of Badkin's response, Dkt. 28. See Dkt. 33 at 5.

         Badkin moves to strike three sources of evidence. First, during Badkin's deposition, Westbrook's handwritten notes from the September meeting were offered as an exhibit. Dkt. 25-1 at 18-19. Badkin's attorney objected that the notes were hearsay. Id. Badkin argues in his response brief that the notes “are hearsay and inadmissible.” Dkt. 28 at 10. Because Lockheed and the Union rely on these notes for the truth of what was stated in the meeting and do not mention the notes in their reply briefs, the Court construes this as an admission that Badkin's objection has merit and grants the motion to strike the notes.[5]

         Second, Badkin asks the Court to strike two declarations pursuant to Local Rule 7(g). Dkt. 36. The declarations are Dkt. 32, Second Declaration of Robert Westbrook, and Dkt. 34, Declaration of Sheri Hendrix. Id.[6] Badkin argues that these declarations “are new evidence and not in reply to Plaintiff's response.” Dkt. 36 at 2. On one hand, Westbrook's second declaration elaborates on Westbrook's intent while working with Badkin, and therefore is in reply to the allegation in Badkin's response that the Union's handling of his grievance was perfunctory or in bad faith. See Dkt. 31 at 3-4 (citing Dkt. 32). On the other, the additional context could have been presented in support of the Union's opening brief, and Badkin does not now have an opportunity to respond. See Karpenski v. Am. Gen. Life Ins. Co., LLC, 999 F.Supp.2d 1218, 1226 (W.D. Wash. 2014) (granting motion to strike when facts introduced on reply should have been introduced in opening brief); see also Nautilus Group, Inc. v. Icon Health & Fitness, Inc., 308 F.Supp.2d 1208, 1214 (W.D. Wash. 2003) (granting motion to strike declaration with new evidence submitted in reply). The Court finds that Westbrook's actions and decision-making process are one of the central issues in this case and that the Union could have presented the more comprehensive picture of Westbrook's thoughts and actions in his declaration supporting their opening brief. Therefore, the Court will grant the motion to strike Westbrook's Second Declaration, Dkt. 32.

         Similarly, the Court finds Hendrix's declaration presents additional facts about Lockheed's absence-reporting policies and about why a HR designation of voluntary resignation would benefit Badkin if he were rehired. Dkt. 34. Because there is no reason these facts could not have been presented earlier, the Court will grant the motion to strike to the extent these facts were not presented in Lockheed's opening brief.

         B. Summary Judgment

         1. ...

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