Cpl. Mary Gladden v. Lexington-Fayette Urban County Government

• Court: Court of Appeals of Kentucky
• Decided: December 8, 2022
• Docket: 2022 CA 000206
• Status: Unknown

Opinion

RENDERED: DECEMBER 9, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0206-MR

CPL. MARY GLADDEN AND FRATERNAL ORDER OF POLICE, TOWN BRANCH LODGE #83 APPELLANTS

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 20-CI-01440

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: DIXON, GOODWINE, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Corporal Mary Gladden and the Fraternal Order of

Police, Town Branch Lodge #83 (“Appellants”) appeal from an order of the

Fayette Circuit Court denying their motion for summary judgment and granting

summary judgment in favor of the Lexington-Fayette Urban County Government

(“Appellee” or “LFUCG”). Appellants argue that 1) Appellee violated Article 11 of the Collective Bargaining Agreement (“CBA”); 2) a “grievable” controversy

existed; 3) the circuit court erred when it examined the substantive merits of the

grievance; and 4) Appellee waived any right to challenge the remedies identified in

the Grievance Report Form. Appellants request an opinion vacating the order on

appeal, with a remand to the circuit court and instructions to enter summary

judgment in their favor. After careful review, and for the reasons stated below, we

conclude that Appellants are entitled to summary judgment and that summary

judgment was improperly rendered in favor of Appellee. Accordingly, we reverse

the order on appeal and remand the matter to the Fayette Circuit Court for further

proceedings.

FACTS AND PROCEDURAL HISTORY

Corporal Mary Gladden is employed by the Fayette County Detention

Center in Fayette County, Kentucky. She is a member of Fraternal Order of

Police, Town Branch Lodge #83. On March 11, 2020, she received a Notice of

Formal Interview from Internal Affairs Investigator Captain Randy Jones. The

notice informed Corporal Gladden that she was being investigated on the possible

charge of improperly disclosing to an inmate that a “shakedown search” was going

to be conducted in another unit.

On March 12, 2020, Gladden appeared for an investigatory interview

with her union representative, and requested that the representative be present

-2- during the interview. Captain Jones denied the request and Gladden proceeded

with the interview without a union representative.

After the interview, the matter concluded with no disciplinary action

taken against Gladden. Believing that Gladden was entitled to a union

representative during the investigatory interview, the union filed a grievance on

March 20, 2020, demanding that Appellee 1) issue no discipline against Gladden;

2) destroy all evidence obtained from the interview; 3) cease any further

interference with employees’ Weingarten1 rights; 4) amend Operational Order 3.1-

2 and the Notice of Formal Interview to recognize Weingarten rights; and 5) pay

costs and attorney fees.

Major Lisa Farmer, a detention center manager, acknowledged receipt

of the grievance, but did not otherwise respond to the communication. This

resulted in the union sending correspondence to Director Steve Haney informing

him that pursuant to Article 11, Section 2 of the CBA, Major Farmer’s failure to

respond within 10 days resulted in satisfaction of the grievance in favor of

Appellants. On April 28, 2020, Director Haney responded that the alleged

violation of Gladden’s rights were not “grievances” per the CBA.

1 Per the United States Supreme Court’s decision in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d 171 (1975), an employee may have a right to a union representative at an investigatory interview if the employee reasonably believes the interview may result in disciplinary action.

-3- On May 8, 2020, Appellants filed the instant action in Fayette Circuit

Court alleging that Appellee violated the CBA by failing to meet and discuss the

grievance with a union representative within 10 days after the filing of the

grievance. They asserted that per CBA Article 11, Section 2, the failure of the

Major Farmer to schedule a meeting within 10 days of the filing of the grievance

resulted in satisfaction of the grievance in favor of Appellants. They argued that

Appellee did not acknowledge the grievance, and its failure to grant all remedies

set forth in the Grievance Report Form constituted a violation of the CBA.

Thereafter, the parties filed competing motions for summary

judgment. On November 19, 2021, the Fayette Circuit Court entered an order

granting Appellee’s motion for summary judgment and denying Appellants’

motion. In support of the order, the circuit court found that the CBA does not

provide the union and its members with the right to representation during

disciplinary investigations. The court also determined that state law does not

recognize the application of Weingarten rights to grievance proceedings between

the Appellants and Appellee, and the interpretation of state law renders the matter

not grievable under the CBA. This appeal followed.

STANDARD OF REVIEW

Summary judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, stipulations, and admissions on file,

-4- together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be

viewed in a light most favorable to the party opposing the motion for summary

judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary

judgment should be granted only if it appears impossible that the nonmoving party

will be able to produce evidence at trial warranting a judgment in his favor. Id.

“Even though a trial court may believe the party opposing the motion may not

succeed at trial, it should not render a summary judgment if there is any issue of

material fact.” Id. Finally, “[t]he standard of review on appeal of a summary

judgment is whether the trial court correctly found that there were no genuine

issues as to any material fact and that the moving party was entitled to judgment as

a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

ARGUMENTS AND ANALYSIS

Appellants first argue that the circuit court committed reversible error

in failing to hold that the grievance was satisfied in favor of Appellants when

Major Farmer failed to respond to the grievance within 10 days of submission.

The grievance having been satisfied by the failure to respond, Appellants claim

entitlement to all remedies sought in the Grievance Report Form. They contend

-5- that the CBA is first and foremost a contract between Appellants and Appellee,

which must be interpreted according to ordinary principles of contract law.

Appellants argue that the CBA is not ambiguous and must be strictly enforced

according to its terms. They direct our attention to Article 11, Section 2 of the

CBA, which states,

The grievance shall, within ten (10) calendar days of the grieved event, be presented to his or her Bureau Manager [(Major Farmer)] or the designated commander by personal delivery with a signature acknowledging receipt, who shall meet and discuss the grievance with the Lodge Representative within ten (10) calendar days after the date presented. The Bureau Manager or the designated commander shall give a written answer documenting the result of the meeting to the Lodge Representative within ten (10) calendar days following the meeting. . . . If the Bureau Manager fails to schedule a meeting within ten (10) calendar days or fails to issue a written response within ten (10) calendar days of the meeting, the grievance shall be considered satisfied in favor of the grievant.

Appellants assert, and Appellee so acknowledges, that Major Farmer

failed to meet with a union representative within 10 calendar days to discuss the

grievance. It is on this basis that Appellants argue that the grievance was satisfied

in favor of Gladden and that the circuit court erred in failing to so rule. They argue

that the circuit court overreached its authority by ruling on the merits of the

grievance, when the only issue before it was whether Appellee’s noncompliance

with the 10 day rule resulted in satisfaction in favor of Appellants.

-6- In disposing of Appellants’ complaint by way of summary judgment,

the Fayette Circuit Court determined that Appellants’ underlying grievance was

not a true “grievance” per the CBA, because the CBA did not expressly grant to

Gladden the right to have union representation present at the investigatory hearing.

The court made this determination based on Article 11, Section 1 of the CBA,

which defines a grievance as “a difference or dispute between a member and

LFUCG regarding the meaning, interpretation or application of the express terms

of this Agreement or a disciplinary action.” The court concluded that because the

CBA did not expressly provide for union representation at a disciplinary hearing,

Appellants’ dispute was not a “grievance” per the CBA, and was therefore not

subject to the administrative procedure set out in the CBA. As such, the court

determined that the failure of Major Farmer to respond to the grievance within 10

days of its submission did not run afoul of the CBA, and was not sufficient to

sustain a cause of action in the circuit court.

The primary question for our consideration is whether the dispute

raised by Gladden on March 20, 2020, constitutes a “grievance” as defined by

Article 11, Section 1 of the CBA, thus implicating the administrative procedure set

out in the agreement. We must answer this question in the affirmative.

In concluding that Gladden’s dispute was not a proper “grievance” per

Article 11, Section 1, the circuit court examined the merits of the grievance and

-7- found it to be unsupported by the CBA. It found that there was no particular or

express language in the CBA supporting Gladden’s claim. We have held,

however, that,

The courts . . . have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The [collective bargaining] agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.

United Brick and Clay Workers of America, Local No. 486 v. Lee Clay Products

Co., Inc., 488 S.W.2d 331, 334 (Ky. 1972). Even frivolous claims are subject to

the terms of the agreement. Id.2

Gladden’s grievance was submitted on a Grievance Report Form to

Major Farmer per the terms of the CBA. The subject matter of the grievance, i.e.,

her claim of entitlement to union representation, is the core principle underlying

the CBA. Lodge #83 is the “exclusive representative” of Gladden, Kentucky

Revised Statutes (“KRS”) 67A.6901(4), and “exists for the primary purpose of

dealing with [Appellee] concerning grievances, labor disputes, wages, rate of pay,

hours of employment, or conditions of employment[.]” KRS 67A.6901(7). We

conclude that Gladden’s grievance falls within the broad scope of the CBA, as her

2 United Brick and Clay Workers of America addresses grievances in the context of arbitration. The principles it articulates are applicable herein, however, as the review process set out in the CBA includes both administrative review by the employer and advisory arbitration.

-8- grievance seeking union representation is at the heart of why the CBA exists. As

such, it is properly a “grievance” per Article 11, Section 1 of the CBA. Arguendo,

even if her grievance is wholly lacking merit,3 it is nevertheless still subject to the

administrative process to which the parties have agreed. United Brick and Clay

Workers of America, supra. The parties, through the CBA, agreed to an

administrative procedure to address all grievances, not merely meritorious

grievances.

Appellants argue that Major Farmer’s failure to respond to the

grievance within 10 days resulted in the grievance being satisfied in her favor per

Article 11, Section 2. It states,

If the Bureau Manager fails to schedule a meeting within ten (10) calendar days or fails to issue a written response within ten (10) calendar days of the meeting, the grievance shall be considered satisfied in favor of the grievant.

Director Haney acknowledged, and the circuit court so found, that Major Farmer

did not schedule a meeting within 10 days of the grievance. Director Haney

further acknowledged that per Article 11, Section 2, the failure to respond within

10 days results in the grievance being satisfied in favor of the employee. Article

11, Section 2 is not ambiguous as to the consequences of the Bureau Manager’s

3 Nothing in this opinion should be construed as addressing the underlying merits of Gladden’s grievance, i.e., whether she was entitled to union representation at the investigatory interview.

-9- failure to respond. This language was freely entered into by the parties in the

collective bargaining process. We conclude that Major Farmer’s failure to

schedule a meeting within 10 days of the filing of the grievance results in the

grievance being satisfied in favor of Gladden.

Appellee states that subsequent to the filing of this action, the parties

entered into a new CBA which expressly provides for union representation in

investigatory interviews. It argues that since a new agreement is now in place, any

remedies denied or granted under the previous contract are no longer in effect

because the new agreement is controlling. It contends that the adoption of the new

CBA renders the matter before us moot.

As noted above, Appellants’ grievance requested that Appellee 1)

issue no discipline against Gladden; 2) destroy all evidence obtained from the

interview; 3) cease any further interference with employees’ Weingarten rights; 4)

amend Operational Order 3.1-2 and the Notice of Formal Interview to recognize

Weingarten rights; and 5) pay costs and attorney fees. As to the first request,

Appellee issued no discipline against Gladden, and any future action will be

governed by the new CBA. This renders Gladden’s first request moot. The

requests to cease further interference with Weingarten rights and to amend the

Operational Order were also subsumed in the new CBA, which was amended to

expressly include the union representation Gladden sought during the investigatory

-10- interview. Thus, requests nos. 1, 3, and 4 are rendered moot by the adoption of the

new CBA.

Gladden’s request for the destruction of all evidence obtained during

the interview and her request for costs and attorney fees, however, were not

remedied by the new CBA. Accordingly, the matter before us is not moot as it

relates to those requests.

CONCLUSION

Gladden submitted a grievance in accordance with the procedure set

out in the CBA. Though we render no opinion as to the merits of Gladden’s

grievance, it asserted a right to representation of the type generally encompassed

by the CBA. We conclude therefrom that it was a grievance as defined by Article

11, Section 1 of the CBA, i.e., “a difference or dispute between a member and

LFUCG regarding the meaning interpretation or application of the express terms of

this Agreement or a disciplinary action.” All grievances – meritorious or not –

require a response from the Bureau Manager within 10 days. Major Farmer’s

failure to respond within 10 days resulted in the grievance being satisfied in favor

of Gladden.

Accordingly, we reverse the order of the Fayette Circuit Court

granting summary judgment in favor of Appellee. Scifres, supra. Appellants are

entitled to summary judgment, as Gladden’s dispute constituted a grievance as

-11- defined by the CBA, and no response was made by Appellee within 10 days as

required by the agreement. On remand, the Fayette Circuit Court shall enter

summary judgment in favor of Appellants, order the destruction of all evidence

obtained in the interview, and award costs and attorney fees, if any.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:

Scott A. Crosbie J. Todd Henning Nicholas A. Oleson Lexington, Kentucky Lexington, Kentucky

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