In a recent decision, the Ninth Circuit Court of Appeals affirmed a district court’s grant of summary judgment in favor of the defendants in a case involving the discharge of a union employee following his alleged whistleblowing on his union’s former president. The court found that Stanford adequately proffered legitimate, nondiscriminatory reasons for the plaintiff’s discharge, including his long history of inappropriate and harassing comments such as racist, sexist, and homophobic remarks about his colleagues. Gazzano v. Stanford University, No. 14-15577, Ninth Circuit Court of Appeals (May 12, 2016).
Dan Gazzano, a groundskeeper, filed a whistleblower lawsuit against his employer, Stanford University, and his union, Service Employees International Union Higher Education Workers Local Chapter 2007. The gravamen of his complaint was that he was discharged for “blowing the whistle” on the former president of Local Chapter 2007.
Gazzano began working for Stanford as a groundskeeper in 2000. In 2010, it was revealed that the union president had been convicted of felony embezzlement, at which time he resigned from his position. Despite his resignation, the former president continued to advise union leadership. Gazzano reported the former union president’s involvement to several lines of contact, including the university ombudsman and the U.S. Department of Labor.
Two days after reporting that issue to the U.S. Department of Labor, Gazzano met with human resources personnel to report that he believed his coworkers were talking about him behind his back in Spanish. During human resources’ investigation of the matter, Gazzano’s coworkers alleged that he regularly “terrorized” them with racial, ethnic, and sexual slurs. Gazzano denied these allegations.
In the fall of 2011, Gazzano went on medical leave for a knee surgery. Within days of returning from leave, Gazzano’s supervisor complained of his disruptive behavior. A group of coworkers reported to human resources that Gazzano was difficult to work with due to his anger issues. Gazzano was sent home from work for two weeks and then was placed on administrative leave.
Almost two months later, human resources concluded that Gazzano should be discharged for “egregious misconduct,” as they did not find his denial of his coworkers’ allegations to be credible, but rather determined that he was creating a demeaning, bigoted work environment contrary to Stanford’s mission.
The following day, Local 2007 filed a grievance on Gazzano’s behalf. The grievance procedure escalated to Step II, after which Stanford’s director of operations affirmed Gazzano’s dismissal. Ultimately, Local 2007 appealed to a Step III resolution option, which was denied.
Gazzano filed suit against Stanford and Local 2007 alleging breach of the duty of fair representation; breach of contract; disability discrimination; and failure to prevent discrimination, harassment, and retaliation, among other claims. In granting the defendants’ summary judgment motions, the district court decided whether each of Gazzano’s claims was preempted by Section 301 of the Labor Management Relations Act. It held that the disability claim was not preempted because reasonable accommodation rights under a disability discrimination claim exist independent of collective bargaining agreements (CBA), but the contract-based claims were preempted because such claims required interpretation of the CBA. And because the contract-based claims were preempted, so too was the breach of duty of fair representation claim, as the latter was “inextricably interdependent” on the breach of contract claim.
The court also held that Gazzano’s disability claim failed since Gazzano never provided Stanford with notice that any of his health issues—such as his adjustment disorder, nosebleeds, and high blood pressure—were serious enough to qualify as a disability.
The Ninth Circuit’s Decision
Though the district court stated that Gazzano’s breach of contract claim was preempted, the Ninth Circuit explained that under Section 301 of the Labor Management Relations Act, a plaintiff may maintain a breach of contract claim if he or she demonstrates that the union breached its duty of fair representation. The court found, however, that Local 2007 investigated Gazzano’s grievance, carried it through three steps of grievance procedures, and negotiated a settlement, which Gazzano declined to accept. The court recognized that it was proper for Local 2007 to decide not to proceed to arbitration, considering its counsel’s evaluation that arbitration would be unsuccessful.
Significantly, the Ninth Circuit affirmed that Stanford’s termination letter presented legitimate, nondiscriminatory reasons for termination that were not pretextual, and it affirmed that there was no evidence that Stanford treated Gazzano more harshly than other similarly situated employees.
The Ninth Circuit’s decision in Gazzano v. Stanford University should remind employers that Section 301 preempts contract-based claims because they require interpretation of a CBA, but does not preempt reasonable accommodation claims because these disability rights exist independent of CBAs. Another key takeaway from this case is that whistleblowing cannot save an employee with a history of inappropriate behavior at work.