The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court upon Defendant Spaulding Lighting Inc.'s Motion for Summary Judgment (Doc. 11); Plaintiff Jimmy Jones' Motion for Partial Summary Judgment (Doc. 12); Defendant Local 795 International Union of Electrical Salaried Machine and Furniture Worker's Motion for Summary Judgment (Doc. 17); Plaintiff's Motion to Strike Spaulding Lighting Inc.'s Statement of Facts (Doc. 18); Plaintiff's Motion to Strike Union's Statement of Facts (Doc. 20); Plaintiff's Motion to Strike Affidavit of Andy Beetz (Doc. 27); and Spaulding Lighting Inc.'s Motion for Oral Argument (Doc. 32). After permitting Plaintiff to take additional discovery, this matter is fully briefed and is ripe for review.
In April of 2001, Defendant Spaulding Lighting Inc. ("Spaulding") hired Plaintiff Jimmy Jones to work as a set-up man. (Doc. 16, Jimmy Jones Dep. at 36) Plaintiff became a member of Defendant IUE-CWA Local 795*fn1 ("the Union").
As a part of his orientation, Plaintiff received a copy of Spaulding's work rules, policies, and Safety Plant Rules. (Id. at 36-38) Plaintiff was aware that using abusive or threatening language, or intimidating or harassing other employees could result in the termination of his employment. (Id. at 38) Plaintiff was also aware of Spaulding's anti-harassment discrimination policy, which stated: "All employees, including those at Spaulding Lighting, must be able to work in an environment free from unwelcome sexual overtures, or other harassing acts from their fellow employees, supervisors and third parties connected with employment." (Id.; Doc. 14, Ex. 3) Sexual harassment is defined as "behavior which is sexually oriented and is not welcome; is personally offensive; negatively affects morale; interferes with the work of its victims and their co-workers; and/or creates an intimidating, hostile or offensive work environment." (Id.) Under the policy, harassment includes "[s]exually oriented jokes, remarks, cartoons, pictures, kidding, or abuse if these are personally offensive, debilitating to morale, intimidating, or act to interfere with the work of the victim;" and "physical contact or near contact such as patting, pinching, or constant brushing of a sexual nature against another's body . . ." (Id.) Violation of this policy could result in discipline "up to and including termination." (Id.) Under the policy, Spaulding's Human Resources Manager is "obligated to investigate every reported complaint of harassment, professionally and without bias, obtaining factual information and being mindful that the alleged harasser has the right to a fair and impartial hearing with a fact-based outcome." (Id.)
In 2004, Plaintiff was involved in two different incidents while at work. Plaintiff and the Defendants do not agree on the specific factual details of these events.
According to Spaulding and the Union, on August 11, 2004, Jones was involved in an incident with another employee, Darlene Thompson. Thompson complained to Phil Green, the Union shop steward, that Jones had rubbed up against her, and threatened her. (Doc. 16, White Dep. Ex. 1; Doc. 16, Green Dep. at 29-30) Green then reported this to Greg White, Jones' supervisor. (Id.) White met with Green and Thompson. (White Dep. at 38) Thompson told White that Jones grabbed her breast and made a "nasty" remark. (Id. at 38, 45) White presented Thompson with two options: he could either report the incident to Ray Greis, Vice President of Human Resources, or White could personally settle the matter with Jones. (Id. at 39) Thompson responded that she did not want to see Jones fired, which would be the likely outcome of reporting the incident to Greis. (Id.)
White and Green then met with Jones, and explained Thompson's allegations against him. (Id. at 40) Jones admitted that he may have rubbed against Thompson's breast at the time clock and that he may have made some nasty remarks to Thompson. (Jones Dep. at 42, 44; Green Dep. at 30) White told Jones that this type of behavior would not be tolerated, and if he touched Thompson or said anything inappropriate to her, his employment could be terminated. (Jones Dep. at 46) White placed a write up regarding the incident in Jones' file. (Doc. 16, Greis Dep. at 42 & Ex. 2)
According to Spaulding and the Union, the second incident occurred six weeks later on either September 28th or September 29th. (Doc. 16, Roberts Dep. at 35) Lakesha Roberts was assigned to run a job on a machine that Jones had just finished setting up. (Id.) Roberts reported to her supervisor that Jones had attempted to grab her breasts. (Id.) Roberts explained that she told Jones that if he touched her, he would lose his job. (Id.) Roberts explained that Jones responded: "Then, I will kill you." (Id.)
According to Jones, he felt harassed by women in the workplace on many occasions. Jones states that during the summer of 2004, Thompson had given Jones her home phone number and asked him to work on her car at her home. (Jones Decl. ¶ 25) Jones explains that he agreed and went to Thompson's house to work on the car. (Id.) Jones also states that Thompson would "come on" to him, bring him breakfast, and hug him and tell him what she wanted to do for him sexually. (Id.) Jones states that he told Thompson that he was not interested in having a relationship with her. (Jones Dep. at 41) Jones states that he attempted to explain this previous relationship to White after the incident with Thompson occurred, but White told him that he "wasn't interested in that, just stay away . . ." (Id. at 46) Jones also points to a leave of absence request that purportedly shows that Thompson was to be on vacation the week of August 11, 2004. (Doc. 14, Ex. 3)
As to the second incident, Jones disputes who told Roberts to work on the machine Jones had set up. Jones maintains that there is conflict of evidence in the record, and therefore it can be inferred that Roberts voluntarily approached Jones. Jones speculates further that Roberts purposefully initiated the contact because she wanted to get Jones fired because he had rejected Thompson, who was Roberts' best friend.
There is some minor disagreement as to what occurred after the second incident. The next day, this incident was brought to the attention of Andy Beetz, Plant Manager, Essie Jackson, Chief Union Steward, and Mike Maxwell, President of the Union. (Roberts Dep. at 42) Beetz telephoned Greis, who was working in Spartanburg, South Carolina. (Greis Dep. at 31-32) Greis began an investigation of the matter by speaking with Roberts by speakerphone. (Id. at 32-33) Roberts told her version of the events twice, and was then asked to repeat her story with Jackson present. (Id. at 38, 42) According to Gries, Roberts' factual account remained the same. (Id. at 48)
Gries then spoke to Jones by speakerphone with Green, Jackson, Beetz present. (Jones Dep. at 59) Greis told Jones that Jackson was present because they were going to question him about an incident which could result in his employment being suspended or terminated. (Greis Dep. at 41) Initially, Jones denied anything occurred between him and Roberts. (Id. at 46) Jones then explained that he was trying to show Roberts that his hands were dirty. (Id.) Jones then changed his story, explaining that he tried to reach toward Roberts. (Id.) Finally, Jones admitted that he may have said something that Roberts misunderstood. (Id.) Jones explains these changes in his story by maintaining that the meeting occurred immediately after the incident, and it was the "pressure of surprise" which caused his "changes of story."
Greis asked Jones if he had any other confrontations with co-workers. (Jones Dep. 59) Jones told Greis about the earlier incident involving Thompson. (Id. at 60) Jones stated that he may have accidentally rubbed against Thompson's breast at the time clock. (Id. at 44) After consultation with Beetz and White, Greis informed Jones that his employment was suspended pending the outcome of Spaulding's investigation. (Id. at 60, 62)
Greis then spoke to Thompson and two other employees. (Greis Dep. 52-53) Thompson explained to Greis that Jones grabbed her breast. (Id. at 53) Thompson explained further that she had pushed Jones away, and he then pulled back and made a fist as to hit her. (Id. at 53, 61, 64) Jones disputes that any violence occurred.
Based on the information he gathered, Greis made the decision to discharge Jones. (Id. at 71) Greis informed Jones by letter that he was terminating his employment. (Jones Dep. Ex. 5) Gries cited to the incident with Roberts, and Jones' response of a "direct threat of violence." (Doc. 14, Ex. 3) Because of Jones' previous clean record, and the Union's request for discipline short of termination, Spaulding was willing to consider re-employing Jones if he were to seek medical and/or psychological counseling and treatment. (Greis Dep. 73)
The Union also conducted its own investigation. (Doc. 16, Maxwell Dep. at 16-17) Jackson and Maxwell spoke to eleven different employees. (Id.) Jackson obtained a written statement from Roberts. (Roberts Dep. Ex. 12) Jackson also spoke to Jones regarding the incident, and asked Jones if he had said that he would kill Roberts. (Jackson Dep. at 48) Jones replied that he "might have" but that he was "playing." (Id.) Jackson also spoke to Thompson, who reiterated that Jones had touched her breast in the earlier incident. (Id. at 33) Maxwell spoke to two employees who stated that Jones had a problem with women in his work area and with the way he carried himself around women. (Maxwell Dep. at 48, 50) Jones did not deny threatening Roberts to Maxwell. (Id. at 21)
Ultimately, the Union filed a grievance on Jones behalf. (Jones Dep. Ex. 6) Jones provided a written statement which explained that he had told Roberts that his hands were "greasy and dirty," and he was going to "wipe" his "greasy hands" on her. (Jones Dep. Ex. 4) Jones also explained that he and Roberts were laughing and he told her "I would rather shoot you than put my hands on you." (Id.) Under the terms of the collecting bargaining agreement, Jones' grievance proceeded directly to Step 3 because it involved a discharge. (Greis Dep. 94) During the Step 3 meeting, Jackson urged Greis to consider a lesser discipline, citing Jones' good performance and attendance records. Jackson also suggested bringing Jones back to work in a different department. (Greis Dep. Ex. 2) Greis denied Jones grievance at Step 3, and the grievance proceeded to Step 4. (Id.) At the Step 4 meeting, Jackson again urged Greis to consider suspension instead of discharge. (Id.) Greis declined, citing the option he provided Jones of seeking treatment as a way to get his job back. (Id.) Greis denied Jones' grievance at Step 4. (Id.)
On October 21, 2004, the Union's Executive Board met to consider whether to take Jones' grievance to arbitration. (Maxwell Dep. Ex. 3) The Board voted unanimously to not process ...