Donato v . McCarthy CV-00-039-M 07/17/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sandra C . Donato, Plaintiff

v. Civil N o . 00-39-M Opinion N o . DNH 2001 129 Sheilah F. McCarthy, Defendant

O R D E R

The plaintiff, Sandra Donato, is a former union member and

employee of Crown Vantage Corporation, who was fired. She

remains bitterly disappointed by an arbitrator’s award upholding

her discharge, and is particularly displeased with the effort

expended on her behalf by Sheila F. McCarthy, Esq., the attorney

who presented the case against her firing before the American

Arbitration Association. Indeed, plaintiff attributes the

adverse decision to McCarthy’s (and the union’s) inadequate

representation, if not deliberate hostility.1 Accordingly,

1 To be fair, McCarthy strenuously denies the charge, and, in all candor, a review of the voluminous pleadings and materials filed by the parties, including a transcript of the arbitration proceeding, reveals a fairly typical labor arbitration defense – not perfect or extended, but abbreviated and to the point. No doubt more could have been done, but it is not at all clear that more would have made a difference in the outcome. Donato brought suit against her union, its Local 7 5 , and

McCarthy. Her claims against the named union defendants were

dismissed by Chief Judge Barbadoro on preemption grounds (Donato

v . McCarthy, et al., Civil N o . 99-344-B), and the case was

remanded to state court, whereupon McCarthy again removed the

remaining claims on diversity grounds. As the matter currently

stands, Donato is asserting five claims against McCarthy: I -

Legal Malpractice; II - Intentional Malpractice; III -

Intentional Infliction of Emotional Distress; IV - Negligent

Nondisclosure; and V - Unfair and Deceptive Trade Practices.

McCarthy, in turn, asserts two counterclaims against Donato: I -

Tortious Interference with Advantageous Contractual Relations;

and II - Defamation.

The fundamental difficulty with Donato’s case is that

McCarthy is immune from personal civil liability for activity

engaged i n , or services rendered by her in connection with the

collective bargaining process. Based on that personal immunity,

McCarthy moves for summary judgment on all counts.

The undisputed material facts establish that plaintiff was a

union member, subject to a collective bargaining agreement

(“CBA”) between her union and her employer, the terms of which

2 defined remedies available to her (through her union) in the

event of an adverse personnel action – like discharge. In this

case, the employer, Crown Vantage Corporation, fired plaintiff

for what it deemed just cause. Her union intervened and, under

the CBA, informally grieved the matter in an effort to have her

reinstated. When that failed, the union leadership decided, upon

advice of counsel (McCarthy), not to take the matter to binding

arbitration, although the union was entitled to do so under the

CBA. However, plaintiff successfully appealed the leadership’s

decision not to arbitrate to the Local’s membership. The

membership voted to invoke arbitration with regard to Donato’s

firing, and the union’s president thereupon directed the union’s

legal counsel – Attorney McCarthy – to notify Crown Vantage that

the union wished to arbitrate plaintiff’s discharge pursuant to

the CBA. McCarthy promptly complied.

Although McCarthy had previously advised the Local that, in

her professional judgment, the union should not take plaintiff’s

case to arbitration because success on the merits was unlikely2,

when the union membership decided to arbitrate anyway, McCarthy

was directed to pursue the union’s (and derivatively,

2 The union and employer are required to share the costs of binding arbitration under the CBA.

3 plaintiff’s) cause before the arbitrator. McCarthy undertook

that task in what appears to be a rather routine fashion –

communicating with union officials, who gathered and provided

relevant information, gathering material herself, meeting and

speaking with plaintiff at the union hall and, later, at a local

motel, identifying and considering potential witnesses, and

presenting the case against discharge before the assigned

arbitrator, including filing a post-hearing brief.3

The various counts in plaintiff’s complaint essentially

advance the same general theme: Attorney McCarthy didn’t do the

job, in plaintiff’s view, with the requisite degree of personal

loyalty, professional competence, thoroughness, or dedication,

and, she actually intended to lose the case in order to cause

plaintiff harm. But McCarthy’s activities, to the extent they

related to presenting the union’s position at arbitration, in the

context of the collective bargaining process, cannot serve as a

basis for holding her personally liable to plaintiff. McCarthy

was hired by the union to handle the arbitration case, was paid

3 Although plaintiff finds fault with McCarthy’s handling a case she advised against bringing, it is hardly unusual for advocates to pursue claims they personally do not think are winnable. There is no evidence suggesting that McCarthy was so personally offended by the union’s decision to disregard her assessment that her professional obligations were compromised.

4 by the union, advised the union, and was indisputably acting as

the union’s agent throughout the grievance process. Accordingly,

she is immune from suit by third parties (like plaintiff) based

upon that collective bargaining related activity. Atkinson v .

Sinclair Refining Co.,

(1962) overruled in part on

other grounds; Boys Markets, Inc. v . Retail Clerks Union, Local

770,

(1970); Montplaisir v . Leighton,

(1st Cir. 1989); Peterson v . Kennedy,

(9th Cir.

1985); Best v . Rome,

(D.Mass. 1994). “This

immunity obtains ‘in contract or tort, or both, . . . or in a

separate action for damages.” Montplaisir,

(quoting Atkinson,

4 9 ) .

Plaintiff vainly attempts to avoid McCarthy’s Atkinson

immunity defense by first attempting to establish an independent

liability theory – one unrelated to the collective bargaining

process – and then describing her causes of action in state law

terms. She says, for example, that an implied, and independent,

attorney-client relationship existed between her and McCarthy,

separate from the union agent-union grievant relationship,

sufficient to support a legal malpractice claim, not to mention

one for intentional tort. But no reasonable factfinder could

5 conclude, on the proffered evidence opposing summary judgment,

that an independent attorney-client relationship existed.

Plaintiff’s contact with McCarthy was initiated by the union;

plaintiff knew McCarthy was the union’s attorney; she met with

McCarthy at the union hall; she did not pay McCarthy; and she

does not, and cannot, claim that she privately sought out or

retained McCarthy to represent her at the arbitration hearing.

Plaintiff acknowledged that she knew McCarthy was acting as the

union’s agent when she answered interrogatories as follows: “As

a member of the union I believed the union attorney was my

attorney.” Interrogatory Answer 9, Exhibit W , Defendant’s Motion

for Summary Judgment (document n o . 2 2 ) . That answer is both

understandable and essentially correct – the union attorney was

engaged in pursuing a union cause that, if successful, would be

of substantial practical benefit to plaintiff as the directly

affected union member – i.e. she would be reinstated. So,

McCarthy was acting to benefit plaintiff, but primarily she

served the union, and plaintiff only indirectly. Plaintiff

obviously knew that McCarthy was acting principally as the

union’s attorney in pursuing the union’s grievance under the CBA,

and was “her attorney” only in the indirect sense that plaintiff

6 was the union member personally affected by the outcome of

union’s arbitration of the grievance. See e.g., Exhibit V ,

Defendant’s Motion for Summary Judgment (document n o . 2 2 ) , Letter

from Donato to American Arbitration Association, dated July 2 5 ,

1996, in which plaintiff writes: “I do not want to sound like

the bad guy but I have reason to believe the union lawyer did not

represent me to the best of her ability in my behalf.” (emphasis

added).

Plaintiff offers no evidence from which a factfinder could

determine that McCarthy ever assumed a role other than that of

union agent, or that plaintiff could reasonably have thought that

McCarthy was serving in any capacity other than as the union’s

representative in pursuing the discharge grievance under the CBA,

albeit a grievance concerning her own employment. Plaintiff’s

suggestion that she believed McCarthy was acting as her own

personal counsel, independently, is not objectively reasonable on

this record. See Best v . Rome,

(“It is

well established that although a union attorney may have some

ethical obligations to a grievant, the attorney’s principal

client is the union, which has retained the attorney, pays for

any legal services, and is often the party to the arbitration

7 proceedings.” (citations omitted)). Given the undisputed facts

and circumstances, an implied attorney-client relationship

between plaintiff and McCarthy, independent o f , or separate and

in addition t o , McCarthy’s union representation cannot be

implied.

Further discussion is unnecessary because plaintiff’s claims

against McCarthy, however imaginative, fall well within the scope

of her personal immunity under Atkinson. “With monotonous

regularity, court after court has cited Atkinson to foreclose

state-law claims, however inventively cloaked, against

individuals acting as union representatives within the ambit of

the collective bargaining process. This principle has become so

embedded in our jurisprudence that it brooks no serious

challenge.” Montplaisir,

(citations omitted).

Plaintiff, of course, was not without recourse if she felt ill-

used by her union or its agent – she could easily have filed a

timely denial of fair representation claim against the union.

Why she failed to do so is unclear, but it is clear that she

cannot now sue the union’s agent personally on what is

essentially a denial of fair representation claim.

8 Since plaintiff has not proffered evidence sufficient to

present a genuine issue of material fact regarding an alleged

implied attorney-client relationship between her and McCarthy,

and the undisputed material facts and circumstances show that

McCarthy was acting as the union’s agent throughout the

arbitration process, McCarthy is immune from plaintiff’s suit and

is entitled to summary judgment as a matter of law on all counts.

Accordingly, McCarthy’s motion for summary judgment (document no.

22) is granted, and judgment shall be entered in defendant’s

favor on Counts I , I I , I I I , IV and V of the amended complaint.4

SO ORDERED.

Steven J. McAuliffe United States District Judge July 1 7 , 2001

cc: Richard S . Nicholson, Esq. R. Matthew Cairns, Esq.

4 The case is not closed because there are extant counterclaims. If defendant does not intend to pursue those claims she shall promptly advise the court, in which event the case will be closed.

9