                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0458n.06

                                           No. 08-1313
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS
                                                                                    Jul 01, 2009
                                                                              LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


DEBORAH LYNNE DANTON,                                    )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellant,                              )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF MICHIGAN
                                                         )
BRIGHTON HOSPITAL; INTERNATIONAL                         )                          OPINION
BROTHERHOOD OF TEAMSTERS,                                )
LOCAL 337,                                               )
                                                         )
       Defendants-Appellees.


BEFORE:        COLE and ROGERS, Circuit Judges; GRAHAM, District Judge*

       COLE, Circuit Judge. Plaintiff-Appellant Deborah Lynne Danton appeals the district

court’s February 5, 2008 order granting summary judgment to Defendants-Appellees Brighton

Hospital (“Brighton”) and International Brotherhood of Teamsters, Local 337 (“Union” or

“Teamsters Local 337”) (collectively, “Defendants”). Danton sued Defendants under § 301 of the

Labor Relations Management Act, 29 U.S.C. §§ 141 (“§ 301” or “hybrid § 301"), et seq., claiming

that the Union breached its duty of fair representation in her claim of wrongful termination against

her former employer, Brighton, and that her termination violated the terms of Brighton’s collective

bargaining agreement with the Union. For the following reasons, we AFFIRM the district court’s

decision.


       *
        The Honorable James L. Graham, United States District Judge for the Southern District
of Ohio, sitting by designation.
Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

                                         I. BACKGROUND

       Brighton is a non-profit healthcare corporation located in Brighton, Michigan. The facility

provides treatment for individuals with substance abuse problems, including alcohol and drug

rehabilitation. Patients served by Brighton often enter the facility at a time of urgent need and many

also suffer from mental health issues.

       Teamsters Local 337 provides union representation for employees working at Brighton. The

Union and Brighton are parties to a collective bargaining agreement (“CBA”). The CBA relevant

to this case was effective December 11, 2004 through December 11, 2007. The CBA as well as

Brighton’s policies and procedures govern the employment relationship between Brighton and its

employees.

A.     The CBA

       Article XIII of the CBA provides, in relevant part:

       Section A. [Brighton] shall not discharge or suspend any seniority employee without
       just cause but, in respect to discharge or suspension, shall give at least one (1)
       warning notice of the complaint against such employee to the employee, in writing,
       and a copy of same to the Union and steward affected, except that no warning notice
       need be given to an employee before she is discharged if the cause of such discharge
       is . . . violation of work rules agreed upon, in writing, which permit summary
       discharge for the offense. The warning notice herein provided shall not remain in
       effect for a period of more than twelve (12) months from the date of said warning
       notice. Discharge or suspension must be by written notice of the action and the
       specific grounds therefor to the employee, her steward and the Union within ten (10)
       days from the date that the Hospital knew of the offense.

       Section B. Grievances protesting discharge or suspension shall be filed within ten
       (10) working days from receipt of the written notice and shall be processed in
       accordance with the grievance and arbitration procedure.

(CBA 30-31, Record On Appeal (“ROA”) 48-49.) Article XIX of the CBA states, in part:

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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

       Level III Offenses

       The penalty for the following offenses is a one (1) week suspension, without pay, for
       the first offense and subject to termination for the second offense:

       ...

       5.      Neglect of a patient.

(CBA 35, ROA 53.)

B.     Danton’s employment and termination

       In May 2004, Brighton hired Danton, a certified social worker, to serve as a Master’s Level

Therapist. At the time of her termination, Danton was employed in Brighton’s partial hospitalization

rehabilitation program (“PHP”). There, her duties included meeting with, interviewing, and treating

patients, conducting group therapy sessions, attending team meetings, communicating with family

members, and completing necessary paperwork related to individual patients.

       On October 19, 2005, Danton was suspended for one week for her first Level III offense—

neglect of a patient. Defendants aver that the grounds of that offense were that Danton did not

satisfactorily meet with and treat a patient, went for long periods without contacting that patient, and

did not include the patient’s family in treatment and counseling sessions. Danton disagreed with the

grounds for the suspension and filed a grievance; however the suspension was upheld in the

grievance process. The validity of Danton’s first Level III offense is not at issue in this appeal.

       On September 14, 2006, Brighton notified Danton that it was terminating her for a second

Level III offense of patient neglect. Brighton cites two separate issues as justification for Danton’s

termination. First, Brighton states that on September 5 and 6, 2006 a patient was admitted to PHP


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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

and assigned to Danton, but Danton failed to make contact with the patient or alert her supervisor

of the necessary follow-up for that patient, who allegedly was in a great deal of distress. Second,

Brighton states that Danton arrived late to work on September 13, 2006, leaving a patient waiting

until 9:50 a.m. to begin a procedure allegedly scheduled for 9:00 a.m.

       While the parties disagree about some of the circumstances leading to Danton’s termination,

the following facts are undisputed. The first incident stems from events beginning on September 5,

2006, when a patient was admitted to Brighton and assigned to Danton for an initial treatment

session (“first session”). The first session is an important primary step in the rehabilitation process

and includes evaluating the patient, developing the patient’s treatment plan, signing releases, and,

among other things, completing required paperwork. The first session typically lasts an hour and a

half to two hours. Brighton requires the first session to be completed within twenty-four hours of

the patient’s admittance.

       On September 6, 2006, Danton met the patient to conduct the first session, but had to end the

session early due to a family emergency. Danton’s notes indicate that she met with the patient from

11:55 a.m. until 12:15 p.m., although Brighton’s records show that Danton clocked out of work at

12:13 p.m. In concluding her meeting with the patient, Danton told the patient that she would finish

the first session the following day.

         Leaving Brighton that day, Danton called her supervisor, Jennifer Mitchell, on Mitchell’s

office phone, and left a message stating only that she was leaving early for the day on an emergency

basis. Danton did not inform Mitchell that she had failed to complete her first session with the

patient and did not provide any further treatment information. Brighton contends that Mitchell had

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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

previously informed Danton of the policy that Danton was required to contact Mitchell on her

cellular phone if the need arose to miss work or leave early. Danton asserts there was no official

written policy that she needed to contact her supervisor on her cellular phone. In any event, Danton

does not contend that she made further efforts to reach Mitchell or that she tried to contact any other

individuals in PHP regarding the patient.

       In the meantime, the patient at issue contacted another therapist, Sandra Jergens, relating that

he was in distress and that Danton had not completed his first session. Jergens conducted a full first

session with the patient and completed all the required documentation.

       The following day, Danton did not come into work. Instead, she left another message on

Mitchell’s office phone, stating that she would not be at work. Once again, Danton did not mention

her unfinished first session with the patient.

       The second incident relates to Danton’s late arrival to work on September 13, 2006. Danton

was scheduled to begin work at 9:00 a.m., at which time she was scheduled to perform acupuncture

treatment. That morning, Danton was running late; however, she did not contact PHP or her

supervisor to report that she was behind schedule. Mitchell attempted to contact Danton, but Danton

did not answer her cellular phone. Danton arrived at Brighton at 9:33 a.m. and did not begin the

acupuncture session until 9:50 a.m.

C.     The grievance process

       On September 20, 2006, Danton filed a grievance responding to the allegations in Brighton’s

September 14, 2006 Corrective Action Report, arguing that her termination violated the CBA.

Danton’s Grievance Report states, in relevant part:

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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

       . . . I was in a personal crisis during this time, & I was in the middle of applying for
       FMLA due to my mother’s multiple medical concerns. That I could not remember
       [Mitchell’s] cell phone number the morning of 9/7 indicates the level of my own
       distress. I was not thinking clearly, & was not focused on what the patients at
       Brighton Hosp. may have needed. If info was needed about a patient, I have no doubt
       that I would have been contacted via phone by a hospital employee, as I have in the
       past. The statement that I am guilty of neglect of a patient is not true.

(Danton Grievance Report, ROA 197.) Danton argued that her termination was improper because

neither of the two alleged offenses constituted neglect of a patient.

       Danton took part in her first-step grievance meeting, an informal meeting occurring at

Brighton’s facilities on October 5, 2006. Danton was accompanied by her Union steward, Catherine

East, Union business agent, Reno Mifsud, and a Brighton representative, Marissa Delisle. The

parties met to try to reach an agreement regarding Danton’s termination. Delisle presented

Brighton’s findings against Danton, and Danton had an opportunity to present her side of the case.

As Danton’s Union representative, Mifsud asked Delisle if Danton could be reinstated. When

Delisle said she could not reinstate Danton, Mifsud informed Danton that she could continue the

grievance process by proceeding to a panel hearing. Danton elected to continue her grievance to the

panel hearing.

       On November 14, 2006, Danton’s panel hearing was held at the Union’s Detroit offices. The

purpose of the meeting was to determine whether the Union would demand arbitration regarding

Danton’s grievance. Patrick Dougherty and Marc Villasurda, the panel co-chairs, presided over the

hearing and were responsible for making a recommendation to the Union’s Executive Board

regarding arbitration. At the hearing, Brighton presented evidence to support its decision to

terminate Danton. Danton spoke on her own behalf. Danton’s Union representative, East, did not

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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

attend the meeting because she became lost en route, and the Union did not present additional

evidence at the hearing. At the conclusion of the hearing, the panel told Danton that it would inform

her of the Union’s decision on arbitration in about thirty days. Ultimately, the panel recommended,

and the Union Executive Board agreed, that Danton’s grievance should not be arbitrated.

D.     Procedural history

       Danton brought this action in the United States District Court for the Eastern District of

Michigan on March 13, 2007, alleging wrongful discharge by Brighton and breach of the duty of fair

representation by the Union. Following discovery, both Brighton and the Union filed motions for

summary judgment. The court granted both parties’ motions, finding that Danton had provided

insufficient evidence to establish that the Union had breached its duty of fair representation. Danton

v. Brighton Hosp., 533 F. Supp. 2d 724, 729-30 (E.D. Mich. 2008). This appeal followed.

                                          II. ANALYSIS

A.     Standard of Review

       This Court reviews a grant of summary judgment de novo. Sullivan v. Or. Ford, Inc., 559

F.3d 594, 594 (6th Cir. 2009). Summary judgment is appropriate “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “We view factual evidence in

the light most favorable to the non-moving party and draw all reasonable inferences in that party’s

favor.” Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009) (citing Henderson v. Walled Lake Consol.

Schs., 469 F.3d 479, 487 (6th Cir. 2006)). However, “[a] mere scintilla of evidence is insufficient;

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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

there must be evidence on which the jury could reasonably find for the [non-movant].” Dominguez

v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). The central inquiry is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

B.     Section 301 claims

       When a union member files claims alleging breach of a collective bargaining agreement by

the employer and breach of the duty of fair representation by the union, the action is known as a

hybrid § 301 action. See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 583 (6th Cir. 1994).

The Supreme Court has stated:

       [s]uch a suit, as a formal matter, comprises two causes of action. The suit against the
       employer rests on § 301, since the employee is alleging a breach of the collective
       bargaining agreement. The suit against the union is one for breach of the union’s
       duty of fair representation, which is implied under the scheme of the National Labor
       Relations Act. Yet the two claims are inextricably interdependent. To prevail
       against either the company or the Union, . . . [plaintiffs] must show that their
       discharge was contrary to the contract but must also carry the burden of
       demonstrating a breach of duty by the Union.

Delcostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983) (internal citations and quotations

omitted). Thus, a plaintiff must show both a breach of the collective bargaining agreement and a

breach of the duty of fair representation. “Unless a plaintiff demonstrates both violations, he cannot

succeed against either party.” Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003).

       “Just as . . . fiduciaries owe their beneficiaries a duty of care as well as a duty of loyalty, a

union owes employees a duty to represent them adequately as well as honestly and in good faith.”

Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 75 (1991) (citations omitted). “In order to prove


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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

a breach of the duty of fair representation, an employee must demonstrate that the union’s actions

or omissions during the grievance process were arbitrary, discriminatory, or in bad faith.” Garrison,

334 F.3d at 538 (citing Vaca v. Sipes, 386 U.S. 171, 190 (1967)).

       If an employee demonstrates that the union acted contrary to its legal duty, “the employee

must then show that the union’s actions or omissions ‘tainted the grievance procedure such that the

outcome was more than likely affected by the Union’s breach.’” Garrison, 334 F.3d at 539 (quoting

Dushaw v. Roadway Express, Inc., 66 F.3d 129, 132 (6th Cir. 1995)). The impact of the union’s

breach must be substantial such that the plaintiff “must meet the onerous burden of proving that the

grievance process was ‘seriously flawed by the union’s breach.’” Black, 15 F.3d at 585 (quoting

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570 (1976)).

       1.      The Union did not breach its duty of fair representation

       For Danton to succeed on her breach of the duty of fair representation claim, she must

provide evidence that the Union’s actions or omissions during the grievance process were arbitrary,

discriminatory, or in bad faith. Each of these wrongs is mutually independent, meaning that “the

three named factors are three separate and distinct possible routes by which a union may be found

to have breached its duty.” Black, 15 F.3d at 584. Specifically, Danton argues that a reasonable jury

could find that the Union’s inaction was arbitrary because it failed to investigate fully the incidents

in the September 14, 2006 Corrective Action Report, and it failed to represent her adequately during

the grievance hearings. “With regard to the arbitrary prong, ‘a union’s actions are arbitrary only if,

in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is

so far outside a ‘wide range of reasonableness’ as to be irrational.’” Garrison, 334 F.3d at 538

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Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

(quoting O’Neill, 499 U.S. at 67). “Mere negligence on the part of a union does not satisfy this

requirement.” Id. (citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73, 376 (1990)).

“In essence then, to prevail, a plaintiff has the difficult task of showing that the union’s actions were

‘wholly irrational.’” Id. at 538-39 (quoting O’Neill, 499 U.S. at 78).

        Given the facts of this case, Danton has not met her burden of demonstrating that the Union’s

actions were wholly irrational. After Danton received her second Corrective Action Report, which

served as her termination notice, East investigated Brighton’s claims. East met with Danton to hear

her version of the events and sought documentation of the alleged incidents, including notes relating

to Danton’s September 5, 2006 patient session. East and Mifsud attended Danton’s first-step

grievance meeting. Further, Mifsud attended, and East attempted to attend, Danton’s panel hearing

in Detroit. Finally, while the Union decided not to go forward to arbitration, Union officials reached

their decision only after allowing Danton to make her case at the panel hearing. We find nothing

irrational in the Union’s reasoning that Danton’s appeal should not continue because she had been

entrusted with a position of substantial responsibility—treating patients with substance-abuse issues

at a time of great need—yet she had not focused on patient needs, had not followed proper

procedures, and had not communicated adequately her patient’s needs to her supervisor or other

professionals at PHP.

        Danton argues that the Union should have done more to represent her. She argues that the

Union should have further investigated her defenses, should have filed a brief at the panel hearing,

and should have used her family emergency as a defense at her hearings. But Danton holds Union

representatives to too high a standard, and fails to explain how any change in the Union’s tactics

                                                 - 10 -
Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

would have affected the outcome of the proceedings. First, as to the standard required for fair

representation, this Court must temper its judgment of the Union’s actions by recalling that union

agents are not lawyers. See Garrison, 334 F.3d at 539. As the district court noted, mere negligence

or poor judgment would not give rise to a claim for breach of the duty of fair representation. Danton,

533 F. Supp. 2d at 729 (citing United Steelworkers of Am. v. Rawson, 496 U.S. 362, 372-73 (1990)).

Though, arguably, the Union could have done more to represent Danton, there is no evidence that

the Union was wholly irrational in its representation. In fact, it appears that the Union found that

the biggest obstacle to Danton’s effective defense was that she contested so few of the facts alleged

by Brighton.

       Second, even assuming that Danton demonstrated that the Union acted contrary to its legal

duty, she must also show that the Union’s failures “tainted the grievance procedure such that the

outcome was more than likely affected by the Union’s breach.” Dushaw, 66 F.3d at 132. None of

Danton’s arguments meets this standard. Simply put, Danton fails to put forth sufficient evidence

that the Union’s action or alleged inaction tainted the grievance process. For all these reasons, we

conclude that summary judgment was appropriate for Danton’s breach of the duty of fair

representation claim.

       2.      No need to reach the alleged breach of the CBA

       Because we conclude that the Union did not breach its duty of fair representation, there is no

need to address Danton’s breach of the CBA claim. To establish a hybrid § 301 claim, a plaintiff

must show both a breach of the duty of fair representation by the union and a breach of contract by

the employer. Summers v. Keebler Co., 133 F. App’x 249, 251 (6th Cir. 2005) (citing DelCostello,

                                                - 11 -
Danton v. Brighton Hosp. and Int’l Bhd. of Teamsters, Local 337
No. 08-1313

462 U.S. at 164-65). These “two claims are inextricably interdependent.” DelCostello, 462 U.S. at

164. Because Danton cannot show a breach of the duty of fair representation, she “cannot succeed

against either party.” Garrison, 334 F.3d at 538

                                     III. CONCLUSION



       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for

Defendants.




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