United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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.
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).
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.
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.
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). 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.
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.
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.
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)
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.
Motions to Strike
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. 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.
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.
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. 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.
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.