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Hicks v. Powell

Superior Court of Rhode Island

July 24, 2015

PHYLISS E. HICKS, Plaintiff,

Providence County Superior Court

For Plaintiff: Phyllis E. Hicks, pro se

For Defendant: Carly B. Iafrate, Esq.; Gerard P. Cobleigh, Esq.; Matthew I. Shaw, Esq.



This matter is before the Court on Defendant Rhode Island Employment Security Alliance, Local 401, SEIU, AFL/CIO-CIC's (the Union)[1] Motion for Summary Judgment. Plaintiff Phyliss E. Hicks (Plaintiff or Ms. Hicks) brought suit against the Union as well as her former employer, the R.I. Department of Labor & Training (DLT), [2] claiming that she was not promoted and in fact terminated from her employment with DLT for discriminatory reasons. She also alleges that the Union breached its duty of fair representation in failing to demand arbitration on the grievances it filed on Plaintiff's behalf. Jurisdiction is pursuant to G.L. 1956 § 8-2-14 and Super. R. Civ. P. 56. For the reasons set forth herein, this Court grants the Union's Motion.


Facts and Travel


Ms. Hicks's Employment

Ms. Hicks is a self-described black female who, at age fifty-eight, served as a part-time public employee for a period of six months with the DLT. (Fifth Am. Compl. ¶¶ 1, 2.) On or about February 2, 2009, Ms. Hicks began her employment as a Senior Employment and Training Interviewer. Id. ¶ 3. Based on state law, the position of Senior Employment and Training Interviewer is a classified position[3] in the noncompetitive branch. Pursuant to the Collective Bargaining Agreement between DLT and the Union, employees in the noncompetitive branch are considered temporary employees and are subject to a one year probationary period, during which time employees may be terminated without cause. (Collective Bargaining Agreement at Arts. 11.11, 11.12 [hereinafter CBA].) During her orientation, Ms. Hicks was informed that all non-civil service and non-management employees must become members of the Union. (Fifth Am. Compl. ¶ 5.) Accordingly, Union dues were regularly deducted from Plaintiff's paycheck, and she became a member of the Union. Id. ¶¶ 8, 9, 27.

Ms. Hicks has claimed that, during the course of her employment, she was subjected to race, sex, and age[4] discrimination by DLT. According to Ms. Hicks, the discrimination occurred in a variety of circumstances. Ms. Hicks alleged discriminatory conduct by both her managers and coworkers. She asserts that one of her managers skipped over her while distributing paychecks and left the area. (Pl.'s Mem. at 13.) When Ms. Hicks confronted the manager about being skipped, the manager allegedly told her that she would get her paycheck when the manager "[g]ot to it." Id. The manager returned later that day and gave Ms. Hicks her paycheck. Id.

Ms. Hicks also asserts that the work environment included "[r]acial [c]omments made by [w]hite employees, " which Ms. Hicks found offensive. (Fifth Am. Compl. ¶ 160.) Specifically, the comments that Ms. Hicks complains of were that "the [w]hite employees were [s]alt and the black employees were [p]epper" and that "a [w]hite pregnant employee's baby better come out white and black because the pregnant employee was so friendly with a [b]lack [m]ale [e]mployee." Id. ¶¶ 161-62.

Another circumstance occurred upon her returning to work after suffering an on-the-job foot injury in April 2009. Ms. Hicks began parking closer to her building until she was informed by an assistant director of DLT that she would need to submit a doctor's note validating her need to park closer to the building in order to obtain special parking privileges. Id. ¶¶ 151, 152-54. In her memorandum, Plaintiff states that, even though she was taken to the hospital directly from DLT after her injury, she was penalized, because she is black, by being required to provide documentation that white employees would not have to provide. Additionally, Ms. Hicks alleges that she was not reimbursed for her medical supplies relative to this injury until October 2009 as "a consequence of her color." (Fifth Am. Compl. ¶¶ 122-23; Pl.'s Mem. at 18.) However, Ms. Hicks provides no details regarding the alleged similarly situated white employees who were allowed to park by the building without submitting doctors' notes or who received reimbursement in a timelier manner.

Ms. Hicks also alleges discrimination with respect to the treatment of applications that she submitted to DLT for promotions to full-time positions. She had one application lost in interoffice mail, and two weeks later, she observed the application on one of her manager's desks. Id. ¶ 146. According to her Complaint, Plaintiff resubmitted the application and contacted Human Resources about the lost mail, but she was later informed that her application arrived too late to be considered. Id. ¶¶ 149-50. Ms. Hicks alleges in her memorandum that this treatment of her application was racially discriminatory because "white employees had no such problems." (Pl.'s Mem. at 19.) Again, no details were provided about the alleged similarly situated white employees.

Additionally, when Ms. Hicks applied for another position with DLT in April 2009, she did not receive an interview. (Fifth Am. Compl. ¶ 138.) A white female coworker who began employment with DLT at the same time as Ms. Hicks did receive an interview, and eventually received the position. Id. ¶¶ 138, 140, 145. Ms. Hicks asked a manager within her department why she did not receive an interview, and according to Ms. Hicks, the manager informed her that she did not have seniority to be interviewed but that Ms. Hicks should contact Human Resources with additional questions since the manager was not involved in the hiring process. Id. ¶¶ 141, 143. Ms. Hicks alleges that this interview selection was racially discriminatory because the department had utilized a lottery system with the new hires, and Ms. Hicks drew number four while the promoted coworker drew number six.[5] Ms. Hicks concludes that since the coworker received an interview when Ms. Hicks did not, the coworker "was hired for the position as a consequence of [] being white."[6] (Pl.'s Mem. at 18.)[7]

During Ms. Hicks's employment with DLT, her supervisors indicated displeasure with the quality of her job performance. (Fifth Am. Compl. ¶¶ 175-77, 189.) According to Ms. Hicks, her second performance evaluation stated that she was "[u]sually cheerful and courteous and tactful, " but it also stated that her performance had decreased and she had problems with the Union Steward. Id. ¶¶ 175, 181.

On August 7, 2009, she received a letter from the DLT Human Resources Administrator detailing DLT's displeasure with her job performance. The letter stated that her "work continues to require careful review by management on a daily basis because of high level of errors." (Union's Ex. F, at 1.) The letter also asserts that her work "lacks accuracy, " and that she did not complete an adequate quantity of claims. Id. Ms. Hicks "constantly [sought] guidance from management several times before completing most claims." Id. The letter indicated that Ms. Hicks failed to understand the various facets of different claim forms, which contributed to the inaccuracy of her work. Id. at 2.

Additionally, the letter detailed interpersonal issues between Ms. Hicks and coworkers occurring throughout July 2009. Specifically, the letter stated that Ms. Hicks often sent instructions directly to coworkers rather than advising a manager of the need for action by a coworker. Id. Ms. Hicks also made errors in handling customer needs at the reception desk throughout July 2009, or failed to take any action at all, resulting in customers having to return to the building a second time or seek assistance from another employee. Id.

The Human Resources letter stated that DLT was considering terminating her employment as a result, and informed her that she had the opportunity to appear at a meeting that afternoon to discuss her employment. (Union's Ex. F, at 1-3.)[8] On August 19, 2009, Plaintiff was terminated, having worked just over six months-182 days-with DLT. (Fifth Am. Compl. ¶¶ 10, 11.) The termination was communicated in a second letter from Human Resources, stating that the termination was the result of poor job performance, repeating the complaints stated in the prior letter. (Union's Ex. H.)

B The Grievances

Throughout her employment with DLT, Ms. Hicks was a Union member. See Fifth Am. Compl. ¶¶ 5, 8, 9, 27. Pursuant to the CBA entered into between DLT and the Union, a grievance may be taken through a three-step process. At the first step, the aggrieved employee, a union representative, and the immediate supervisor meet and attempt to resolve the grievance. (CBA Art. 25.2.) If Step 1 is unsuccessful, the grievance is reduced to writing, and the Union and aggrieved employee present the grievance at a Step 2 hearing before a designee of the Director of the Department of Administration. Id. If the Union or aggrieved employee is not satisfied with the result of the Step 2 hearing, then the Union may submit the matter to arbitration for a final disposition. Id. Pursuant to the CBA, the first two steps of the three-step process are mandatory for permanent employees. See id. However, the Union has discretion not to pursue a grievance to arbitration for any employee, temporary or permanent. See id.

Before she was terminated, Ms. Hicks requested that the Union file a grievance based upon the alleged various instances of racial discrimination during her employment with DLT, as stated above. The Union filed a grievance on her behalf on June 15, 2009 (Grievance 1). (Union's Ex. E, at 1.)[9] After she was terminated, Ms. Hicks alleged that her termination was due to racial[10] discrimination and sought Union representation to grieve her termination. See id. The Union filed a second grievance (Grievance 2) on September 2, 2009, alleging that Ms. Hicks's termination was discriminatory. (Union's Ex. I, at 1.)

The Union and DLT agreed to consolidate the two grievances for a Step 2 hearing, which occurred on September 16 and October 28, 2009. (Union's Ex. J, at 1.) According to Union President Marilyn Tipton, she and the Union's attorney met with Ms. Hicks prior to and throughout the hearing process to gain her input. In addition, the Union's attorney represented Ms. Hicks at the hearing. (Union's Ex. G, ¶¶ 4-6.)[11] The hearing officer issued two written decisions on February 3, 2010, one for each grievance. She found in favor of DLT on both grievances, finding insufficient evidence of racial discrimination against Ms. Hicks. (Union's Exs. J, at 7; K, at 7.) The hearing officer additionally found that Ms. Hicks could be terminated without recourse because she was a temporary employee, employed for less than one year. (Union's Ex. K, at 7.)

In March 2010, the Union, after consulting with legal counsel, elected not to proceed to arbitration because it believed that the Step 2 hearing had made evident that there was no factual basis for Plaintiff's allegations of racial discrimination supporting either grievance.[12] (Union's Exs. G, at ¶ 7; L, at 1; M, at 1.) In addition, the Union considered that DLT had provided evidence of Plaintiff's poor job performance and that Plaintiff was not entitled to pursue her grievance further because of her status as a temporary employee. (Union's Ex. M, at 1.)


Case Travel

In August 2010, Plaintiff filed the instant lawsuit. Read liberally, the Complaint alleges race, sex, and age discrimination[13] against DLT in violation of the CBA and state law. It also alleges that the Union breached its duty of fair representation. In September 2010, Ms. Hicks's first Motion to Amend her Complaint was granted, and she filed her First Amended Complaint. A second Motion to Amend was granted, and a Second Amended Complaint followed in November 2010. The State Defendants filed a Motion to Dismiss, and in December 2010, this Court, Fortunato, J., granted a conditional order of dismissal with leave for Plaintiff to amend her Complaint, which she did, resulting in a Third Amended Complaint. In June 2013, this Court, Matos, J., entered a conditional order for summary judgment, again giving Plaintiff leave to amend her Complaint. The Plaintiff filed her Fourth Amended Complaint in July 2013.

The State Defendants filed another Motion to Dismiss, and in October 2013, this Court, Montalbano, J., granted in part and denied in part. He did so without prejudice, giving Plaintiff sixty days to file an amended Complaint. Plaintiff again amended her Complaint, and the State Defendants again moved to dismiss. In March 2014, after three and one-half years of proceedings and a total of five amendments to the Complaint, this Court, Montalbano, J., granted the Motion to ...

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