MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the motion for summary judgment filed by defendant National Association of Letter Carriers, AFL-CIO ("NALC") (Doc. 32). Plaintiff Tracy Dupree has responded to the motion (Doc. 35), and NALC has replied to that response (Doc. 39).
I. Standard for Summary Judgment
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
As a preliminary matter, NALC argues the Court should disregard certain statements contained in Dupree's affidavit in opposition to summary judgment because they are speculative, conclusory or hearsay. In ruling on a motion for summary judgment, the Court considers only evidence that would be admissible or usable at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). Hearsay cannot be used to oppose a motion for summary judgment. Id. Affidavits must be based on personal knowledge. Fed.R.Civ.P. 56(c)(4). To the extent statements in Dupree's affidavit are hearsay or otherwise not based on her personal knowledge, the Court will disregard them.
That being said, the competent evidence in the file, viewed in Dupree's favor, establishes the following relevant facts for the purposes of this motion.
Dupree is a member of NALC Branch 319 and worked for the defendant United States Postal Service ("USPS") in its East St. Louis, Illinois, post office. NALC is the exclusive bargaining representative of Dupree and others in the collective bargaining unit with respect to their employment with the USPS. NALC and the USPS had negotiated a national collective bargaining agreement ("CBA") that required just cause for discipline or discharge, CBA Art. 16 § 1 and provides that unresolved grievances may be arbitrated, CBA Art. 15 § 3.
On November 8, 2010, Dupree was unable to report to work because of a medical problem. She called in sick and requested eight hours of sick leave. Fourteen other employees also called in sick that same day. The absence of so many employees adversely impacted the operations at the East St. Louis post office. After Dupree returned to work the following day, her supervisor asked her for medical documentation to support her request for sick leave, although the CBA only required medical documentation for absences of more than three days. Dupree offered to go to the doctor immediately, but her supervisor told her that was not necessary.
At some point, the USPS began to suspect that Dupree had organized a "sick-out" - organized action where multiple employees call in sick on the same day - on November 8, 2010, to protest car thefts from the East St. Louis post office property. The USPS Office of the Inspector General ("OIG") investigated the matter, speaking with numerous witnesses including Dupree and coworker Willie Frazier. The OIG eventually issued a lengthy report summarizing its investigation. The report noted that three witnesses had stated Frazier had solicited them to participate in the sick-out. The report further stated that it was possible that Frazier had sent a November 7, 2010, text message encouraging employees to call in sick. Some statements in the report also implicated Dupree as an instigator of the sick-out.
Information uncovered by the OIG's investigation was the basis for the USPS's decision to terminate Dupree and eleven other bargaining unit members. In early May 2011, the USPS issued Dupree a Notice of Removal telling her she would be terminated from her job for conduct unbecoming of a postal employee. The Notice specifically cited untruthful answers she provided to the OIG during her first of two interviews and her contacting employees to inform them to call in sick on November 8, 2010. NALC grieved this discipline all the way through arbitration claiming that there was no just cause for Dupree's discharge.
NALC designated Kenneth R. Miller, an experienced arbitrator, to represent Dupree at the arbitration hearing. Miller also represented five other bargaining unit employees in their arbitration over discipline issued as a result of the sick-out, all of which had occurred prior to Dupree's hearing. In preparation for Dupree's hearing, he familiarized himself with Dupree's grievance file and with the OIG report. Miller also met with Dupree in person one time the week before the hearing for about a half hour. At that meeting, he read the two statements Dupree had given during the OIG investigation, listened to her explain what happened from November 6 to November 8, 2010, and advised her how to dress for the hearing. He also told her that the statements others had made against her in the OIG investigation did not matter because the arbitrator would base his decision on the credibility of the witnesses at the hearing. Miller was aware that Ed Hawkins had stated the OIG coerced him into making a statement against Dupree.
Later, Miller spoke on the phone with Dupree to convey a settlement offer from the USPS: it would drop the sick-out participation charges against bargaining unit employees Hawkins (a male) and John Frawley (a white male), both accused of participating in the sick-out, if Dupree and Reenai Mason, another bargaining unit employee suspected of instigating the sick-out, would voluntarily resign. NALC encouraged Dupree to accept the settlement, but she refused. Miller states that Dupree's race played no role in his representation of her and that there was no "secret deal" between NALC and the USPS to benefit other bargaining unit members.
Prior to the arbitration hearing, several employees who had received Notices of Removal were allowed to return to work, including Hawkins and Frawley.
Dupree's arbitration occurred on February 10, 2012. While NALC and the USPS had the right to request that a court reporter transcribe the proceedings, neither did, which was the standard procedure in arbitration hearings. Miller did not know which witnesses the USPS would call prior to the hearing. At the hearing, Miller argued that Dupree provided medical documentation of her November 8, 2010, absence but the USPS lost it; Dupree did not organize the sick-out; the only evidence Dupree was an organizer of the sick-out was inconsistent, circumstantial and/or suspect evidence; discharge was too harsh of a penalty even if Dupree did something wrong; and the Notice of Removal was not timely.
Dupree testified at the hearing, but Miller did not call any other witnesses to testify in her favor because, in light of the potential witnesses' statements in the OIG report, which was admitted at the hearing, Miller thought their testimony might be detrimental to Dupree's cause. Miller only cross-examined one of the five USPS witnesses. He did not cross-examine Frazier, who gave testimony inconsistent with some of the statements he had made to the OIG during the investigation, or Jane Moeller, who could have testified that there was no legitimate reason to wait to request medical documentation until Dupree returned to work. In addition, seven people who gave statements in the OIG's investigation, including Dupree, ...