                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-2003

Connell v. Merck & Co Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1136




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 03-1136


                                 WILLIE CONNELL,
                                             Appellant

                                          v.

                          MERCK AND COMPANY, INC.;
                        JOHN DOE (1-10), (names fictitious);
                              ABC PARTNERSHIP;
                       XYZ CORPORATION, (names fictitious);
                              PACE LOCAL 2-575


              APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                             D.C. Civil No. 01-cv-01212
                 District Judge: The Honorable Harold A. Ackerman


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 11, 2003


                Before: ALITO, BARRY, and AMBRO, Circuit Judges


                              (Filed: September 26, 2003)


                                      OPINION




BARRY, Circuit Judge
       Willie Connell was terminated by his employer, Merck and Company, Inc.

(“Merck”), for dealing drugs and brought suit alleging, among other things, breach of the

collective bargaining agreement. Connell also sued Local 2-575 of the Paper, Allied

Industrial, Chemical and Energy Workers International Union (“Union”), claiming that the

Union violated its duty of fair representation by failing to adequately present his case at the

arbitration hearing. The District Court granted summary judgment to both defendants and

Connell timely appealed. The District Court had jurisdiction pursuant to Section 301 of the

Labor Management Relations Act and 28 U.S.C. § 1331. We have jurisdiction pursuant to

28 U.S.C. § 1291, and will affirm.

       Because the parties are familiar with the facts of the underlying dispute, we will

discuss them only as necessary to resolve the issues presented. On March 2, 2001,

Connell was formally terminated by Merck, his employer of over a decade. The Union

filed a grievance on his behalf, challenging his termination and demanding arbitration

pursuant to the collective bargaining agreement. A hearing was held, at which Connell was

represented by an attorney provided by the Union. The arbitrator found that Merck had just

cause to terminate Connell.

       An employee is bound by the result of an arbitration proceeding unless he or she can

show that the union’s conduct toward the employee was “arbitrary, discriminatory or in bad

faith,” such that the union breached its duty of fair representation. Marquez v. Screen

Actors Guild, Inc., 525 U.S. 33, 44 (1998). “[A]n employee’s claim against his employer

                                               2
for wrongful discharge may be meritorious, but he nevertheless cannot prevail in a federal

court action unless he establishes a lack of fair representation.” Findley v. Jones Motor

Freight, 639 F.2d 953, 958 (3d Cir. 1981).

       Connell alleges that his attorney’s actions were arbitrary. To prevail, he must show

that those actions were far outside the “wide range of reasonableness” which “gives the

union room to make discretionary decisions and choices, even if those judgments are

ultimately wrong.” Marquez, 525 U.S. at 45-46. The threshold question for us is whether

the attorney’s performance was within the range of acceptable performance and, if not,

whether Connell was prejudiced thereby. Findley, 639 F.2d at 958.

       Connell contends, first, that his attorney’s decision not to call him as a witness at

the arbitration hearing was arbitrary. The arbitrator concluded that Connell’s failure to

testify meant that an adverse inference could be drawn against him. Despite this evidence

that the attorney’s decision may have backfired, deciding not to call Connell so that he

could deny any involvement with the sale of drugs was within the range of acceptable

performance. That Connell denied the drug charges against him was in the record before

the arbitrator, reducing the importance of his testimony. Moreover, there is support in the

record before us for the conclusion that Connell would not have been a credible witness. In

his deposition, he denied any involvement with drugs but offered no explanation for the

drugs found in his apartment when he was arrested, explained that he kept a loaded 9mm

Smith and Wesson in his nightstand because he was a sportsman, and claimed that he had

$1800 in cash in a suitcase under his bed because it was a “safe spot” and because there

                                               3
were unspecified items he needed to buy to make his apartment a “livable environment.”

His attorney cannot be faulted for believing that if Connell testified “he might just end up

getting so far down the road of denials that he is going to look totally incredible.”1

       Connell contends, next, that prior to the hearing, his attorney should have but did not

interview Merck’s witnesses, Detective John Roesler, who arrested Connell, and Larry

Keeley, who claimed that he purchased crack cocaine from him. We reject this contention

without further discussion both because Connell fails to explain how he was prejudiced by

his attorney’s failure to interview Keeley and Roesler and because his attorney had access

to the prior statements of both witnesses.

       With regard to Detective Roesler, Connell also argues that his attorney should have

used the transcript of Connell’s criminal trial to cross-examine Roesler. If he had, the

argument goes, he could have pointed out that at trial Roesler claimed that the cocaine he

found in Connell’s bedroom was in powder form, while in the arrest report he said it was in

rock form with pieces chipped off. His attorney also could have pointed out that at the


   1
      At his deposition, the attorney explained that his strategy was to argue, first, that the
Union promised that Connell could resume working if he was acquitted; second, that
Connell should not be fired for conduct engaged in while he was off-duty and off the
premises; and, third, that the only evidence that Connell sold drugs was the testimony of
Larry Keeley, who should not be believed because he was a drug addict “with an obvious
motive to lie about [Connell] to curry favor with the police after being arrested” for selling
drugs to an undercover police officer. At the time of the arbitration hearing, Keeley was
still on probation and thus continued to have an incentive to lie. The attorney decided
against putting the focus on Connell’s blanket denials because he did not believe that a
strategy that would require the arbitrator to believe that the police conspired to frame
Connell for a crime he did not commit, with no explanation for why they would do so,
would succeed.

                                               4
criminal trial Roesler claimed that it was due to a typographical error that the affidavit

submitted in support of the search warrant described Connell being three or four inches

taller than he was with a thin build when in fact he was heavy-set. We agree with the

District Court , which found it unlikely that the powder/rock inconsistency would have

altered the outcome of the arbitration proceeding. As for the height/weight discrepancy,

we find that any impeachment value was too minimal for it to be said that, in light of the

essentially unchallenged evidence against Connell, the failure to cross-examine with the

transcript was arbitrary.2

       Connell also complains that his attorney failed to interview and subpoena for

testimony witnesses who could provide support for his claim that he was the victim of a

police conspiracy. Connell identifies only one such witness, Shomnik Gayles, his live-in

girlfriend at the time of his arrest. Ms. Gayles’ testimony, however, had the potential to

hurt Connell more than it helped him. When asked at her deposition whether Larry Keeley

purchased drugs from anyone in her home, she responded that she did not know, but added

that “[t]here was talk in [her] house,” and that she had seen Connell and Keeley talking. She

testified that Connell and two other men smoked marijuana in the apartment “pretty much

everyday,” which contradicts Connell’s deposition testimony that he never smoked

marijuana there. Finally, she testified that when she asked Connell about the crack cocaine


   2
    Connell also argues that his attorney should have questioned Roesler regarding his
admission at trial that during his surveillance of Connell’s apartment he never saw him sell
drugs. Even if this was not raised during the hearing, and there is no transcript, it was
emphasized in Connell’s 28-page post-hearing letter brief.

                                               5
after his arrest he did not protest his innocence but instead told her to mind her own

business. In light of Ms. Gayles’ deposition testimony, as well as the attorney’s reasonable

decision to shift the focus away from Connell’s theory that he was the victim of a police

conspiracy, his attorney’s failure to subpoena Ms. Gayles to testify at the arbitration

hearing cannot be said to have prejudiced Connell.3

       The December 17, 2002 order of the District Court will be affirmed.




   3
     Connell also complains that the attorney acted arbitrarily by failing to challenge the
validity of the drug sales provision in the collective bargaining agreement on vagueness
grounds and by violating several of New Jersey’s Rules of Professional Conduct. He also
claims that (1) the arbitrator’s decision violated public policy and evidenced a manifest
disregard for the law, (2) the arbitrator’s decision had no support in the record, and (3) the
arbitrator’s decision violated the Double Jeopardy Clause of the Fifth Amendment of the
Constitution. As the District Court found, all of these arguments are waived as they were
not raised in Connell’s amended complaint; we do not address them here.

                                               6
TO THE CLERK OF THE COURT:
     Kindly file the foregoing Opinion




                                        /s/ Maryanne Trump Barry
                               Circuit Judge
