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Rupcich v. United Food and Commercial Workers International Union

United States Court of Appeals, Seventh Circuit

August 17, 2016

Patricia Rupcich, Plaintiff-Appellant,
v.
United Food and Commercial Workers International Union, Local 881, and Jewel Food Stores, Inc., Defendants-Appellees.

          Argued October 27, 2015

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-CV-6615 - John Z. Lee, Judge.

          Before Kanne and Rovner, Circuit Judges, and Bruce, District Judge. [*]

          KANNE, CIRCUIT JUDGE

         Plaintiff Patricia Rupcich was fired from her job of twenty-five years at one of Defendant Jewel Food Stores, Inc.'s stores in January 2012 for wheeling a twenty-five pound bag of birdseed in a grocery cart past the last cash register without paying for it. Rupcich said that she wheeled the birdseed past the last cash register by accident, as she rushed home to care for her sick grandson after her shift ended. That this may in fact be true is irrelevant, according to Jewel, because it claims to define "misappropriation" and theft to be strict liability violations that do not require a showing of intent. Of course, there does not appear to be evidence that Jewel communicated this definition to Rupcich. There is evidence, however, that it relayed this information to Rupcich's union, Defendant United Food and Commercial Workers International, Local 881, which decided not to dispute her termination with Jewel in arbitration or even process it through the collectively bargained grievance procedure. Instead, Local 881 abandoned her case because Rupcich admitted she took the bag of birdseed past the last cash register in her store without paying for it. Local 881 made this decision despite substantial evidence that Rupcich had made an inadvertent mistake in her rush to get her grandson to the doctor.

         Rupcich filed this complaint alleging amongst other theories that Local 881 breached its duty of fair representation to her and that Jewel breached the relevant collective bargaining agreement.[1] The parties cross-moved for summary judgment, with Local 881 arguing that the great amount of deference afforded unions under federal labor law shielded any questionable decisions it may have made in declining to pursue Rupcich's grievance. The district court agreed, and on that basis, granted Local 881 and Jewel's motions for summary judgment on the breach of fair duty of representation claim and breach of contract claim, respectively. It denied Rupcich's motions for summary judgment.

         Rupcich appeals the district court's decisions on her claims for breach of the duty of fair representation and breach of the collective bargaining agreement. Finding that a reasonable juror could determine that Local 881's actions in this case were arbitrary and outside the "wide range of reasonableness" afforded unions in the grievance process, see Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991) (internal quotation marks omitted), we reverse the district court's decision granting summary judgment to Local 881 and Jewel on Rupcich's claims against them. We do, however, affirm the district court's decision to deny Rupcich's motions for summary judgment.

         I. Background

         A. Factual Background

         Rupcich worked for a Jewel grocery store in Chicago's East Side neighborhood from November 1986 until her termination on January 31, 2012. During her twenty-five year tenure as a Jewel employee, Rupcich was also a member of Local 881. Local 881 had negotiated a collective bargaining agreement with Jewel entitled "Local 881 UFCW Contract 2010-2013 Jewel Food Stores, Inc. Chicagoland" ("CBA"), which governed Rupcich and other Jewel employees' relationship with Local 881 and Jewel. This CBA was in effect at the time of Rupcich's dismissal from Jewel.

         On January 19, 2012, Rupcich was performing her duties as a receiving clerk at the East Side Jewel when she received a call from her husband around 12:15 p.m. Rupcich's husband, who had been babysitting their grandchildren while she worked that day, called Rupcich to tell her that her grandson was ill and to ask for her to come home immediately to help. After speaking with her daughter-the child's mother-regarding the situation, Rupcich decided to finish her shift, which ended at 1 p.m. Rupcich planned to go home, pick up her grandson, and take him to a doctor's office around 2 p.m.

         During her shift that day, Rupcich had been cleaning the receiving area and came across two bags of birdseed. Rupcich scanned one bag and discarded it as damaged; as for the other bag, Rupcich placed it in the shopping cart. According to Rupcich, she planned to return the bag of birdseed to the front of the store as she left for the day. Rupcich said it was her practice to bring overstock items like the bag of birdseed to the front of the store. Rupcich packed up her personal belongings-her winter attire, her coffee cup, the lunch she paid for at Jewel, and a receipt for the lunch-and placed them in the cart's child seat. The birdseed bag was in the cart's main carriage.

         After clocking out at the front of the store, Rupcich rolled the shopping cart with her personal belongings and birdseed bag past the last point of sale and headed to the exit where Jewel Loss Prevention Associate Gregory Young was standing. Young asked to see Rupcich's receipt for the birdseed bag, which, according to Young, was not concealed. Rupcich testified she realized her mistake, apologized, explained to Young that her grandson was sick, and wheeled the cart with the birdseed to the wall by the service desk and self-checkout. Young told Rupcich he would have to report the incident to his supervisor. According to Young, he made this report even though he did not believe that Rupcich intended to steal the birdseed. After their brief conversation, Rupcich proceeded home and took her grandson to the doctor.

         Young informed his supervisors, including Jewel Loss Prevention Manager Marty Oppenhauser, of the incident. He also completed a Security/Loss Prevention Incident Report in which he recounted the incident. In the account, Young states that Rupcich told him she had forgotten about the birdseed and that it was overstock.

         Oppenhauser was directed to investigate the January 19 incident. According to Oppenhauser, he viewed a video showing Rupcich's movements from the receiving area to the front and filled out a "Digital Video Evidence Log" recounting meaningful events in Rupcich's journey. On January 23, 2012, Oppenhauser interviewed Rupcich. Rupcich provided an account substantially similar to the one discussed above. A decision was then made to suspend Rupcich until further review.

         Rupcich contacted her Union representative, Marcella Robinson, the same day to report the suspension and provide her version of events. Robinson told Rupcich that she would attempt to determine the status of Rupcich's case. Robinson then contacted Rupcich's store manager, Raymond Ulatowski. The two had a brief conversation in which Ula-towski did not provide any information on Rupcich's case and directed Robinson to contact Jewel's loss prevention department. Robinson then proceeded to file a grievance on Rupcich's behalf and sent a letter to Jewel seeking security reports, video, and any other documentation related to Rupcich's suspension.

         After his meeting with Rupcich, Oppenhauser forwarded the information he gathered from his investigation to his superiors. Those investigative results included: (1) Oppenhauser's memorandum summarizing his interview with Rupcich; (2) Rupcich's written statement; (3) Oppenhauser's video log; and (4) Young's report. Oppenhauser did not interview Young or anyone else from the store who may have known Rupcich or witnessed the January 19 incident.

         John Novosel, a Jewel associate relations representative, reviewed that investigative file and the video of the incident before making the determination to terminate Rupcich. In making this determination, Novosel relied on Jewel's "strict[ly] enforc[ed]" misappropriation policy, which, according to Novosel, operates under the following strictures: (1) any taking of unpaid for merchandise past the last point of sale-the last cash register or self-checkout terminal-is considered "theft" under the policy; (2) it is Jewel's policy to terminate anyone who violates the policy, unless "special or mitigating circumstances exist"; (3) an "employee's intent or state of mind" in taking that unpaid merchandise past the point of sale is irrelevant in enforcing Jewel's misappropriation policy; and (4) "forgetting to pay for product" is not a "special or mitigating circumstance" under the policy. Novosel concluded that the video showed Rupcich walk past the final point of sale with unpaid merchandise in her cart and that her explanation for doing so did not qualify as a "special or mitigating circumstance." After making this decision, Novosel prepared an "Associate Corrective Action Review/' which memorialized his decision to terminate Rupcich for "[misappropriation of Company property."

         Following Novosel's decision, Jewel contacted Rupcich and asked her to attend a meeting on January 31. Rupcich contacted Robinson who went with Rupcich to the meeting. At the meeting, Ulatowski told Rupcich that Jewel had decided to terminate her employment and asked her to sign the "Associate Corrective Action Review." On Robinson's advice, Rupcich refused to sign the form.

         On February 4, Jewel denied Rupcich's previously filed grievance, which prompted Robinson to meet with the Union's Grievance Coordinator, Bill O'Keefe, to discuss the Union's next steps. O'Keefe and Robinson reviewed the investigative file, which included video stills showing Rupcich being stopped by store security past the point of sale, Rupcich's statement, and a document entitled "Security/Loss Prevention Detailed Case Report" that states Rupcich's offense was "Misappropriation" and her offense category was "Dishonesty/Criminal Acts." It is undisputed that Jewel did not provide the Union the video of the incident, just photo stills. O'Keefe and Robinson also discussed Rupcich's statements to Robinson. O'Keefe decided not to pursue arbitration based on "Jewel's well-established practice of terminating employees who are stopped past the point of purchase with unpaid merchandise." Rupcich was subsequently informed that the Union would not be pursuing her grievance.

         Rupcich and her attorney appealed O'Keefe's decision to the Union's Executive Board. Included in their appeal was: (1) a doctor's note indicating that Rupcich's grandson had been seen by a doctor for difficulty breathing on January 19, 2012, and (2) a signed statement from a clerk in the Thornton Police Department indicating Rupcich had informed the department she could not perform her duties as a crossing guard on the ...


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