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Greene v. Independent Pilots Association

United States District Court, W.D. Kentucky, Louisville

February 22, 2018

DOUGLAS GREENE, PLAINTIFF
v.
INDEPENDENT PILOTS ASSOCIATION, et al., DEFENDANTS

          MEMORANDUM OPINION & ORDER

          Thomas B. Russell, United States District Court Senior Judge

         This matter comes before the Court upon two Motions. First, Defendants, the Independent Pilots Association and its officers, (hereinafter referred to collectively as “IPA”), have filed a Motion for sanctions and a protective order against pro se Plaintiff Douglas Greene (“Greene”). [DN 83.] Second, Greene has filed a Motion for sanctions against IPA. [DN 84.] Therein, Greene also seeks a protective order. [Id.]

         These matters are ripe for adjudication. For the following reasons, IPA's Motion [DN 83] is GRANTED in part and DISMISSED in part, and Greene's Motion [DN 84] is DENIED in part and DISMISSED in part.

         I. Factual Background

         A.

         A detailed history of the facts of this case was provided by the Court in its Memorandum Opinion granting IPA summary judgment. [See DN 78.] A summarized version of that factual background section is included below:

         Greene was formerly employed by United Parcel Service (“UPS”) from 1994 to November 2013 when he was terminated. During the course of his employment, IPA filed a grievance on his behalf in 2011, stemming from an apparent first attempt by UPS to terminate Greene's employment with the company. Thereafter, Greene allegedly made unsavory comments regarding IPA, despite their success in 2011, because IPA refused to publish his anonymous letter to the editor in its bi-weekly newsletter, Flight Times. [DN 50-3, at 3-4.] After Greene's comments, IPA designated the law firm Wyatt, Tarrant & Combs as Greene's point of contact for any further matters concerning IPA. [Id.]

         In early 2013, Greene received a notation in his file for carrying a prohibited item onto a FedEx flight on which he was hitching a ride. The item was a pair of toiletry scissors. [See DN 50-47.] As a result of this, Greene spent the 2013 summer lobbying UPS and IPA officials in an attempt to have the notation removed from his file. Under the UPS-IPA collective bargaining agreement, these types of notations are not disciplinary, and therefore may not be the subject of an employment grievance. [DN 50-9, at 43.] Thus, IPA did not file a grievance concerning the notation, but individual officials from IPA were successful in lobbying UPS to add a paragraph indicating that Greene was courteous under the circumstances. [DN 50-55, at 3.] Greene did not feel that this was a successful result. [DN 50-54.]

         After the toiletry scissors incident, Greene's behavior, and his statements to other pilots that fall, caused UPS to become concerned with Greene's ability to safely function as a pilot. Consequently, UPS removed him from flight status in August 2013 and notified IPA that it was investigating Greene's conduct. [DN 50-3, at 5.] Pursuant to Article 7.B.2, when UPS removes a pilot from flight duty, the pilot is entitled to a disciplinary hearing, at which he may be represented by IPA. [DN 50-9, at 43.] Because of Greene's acrimonious history with the association, IPA made the decision to hire outside counsel to represent Greene on its behalf. [DN 50-3, at 5.] Attorney Irwin Cutler, (“Cutler”), was chosen for this task.

         Around the time of the disciplinary hearings, Michael Starnes, (“Starnes”), one of Greene's then-co-pilots at UPS, emailed Jennifer Robbins, (“Robbins”), a UPS investigator, telling her that in his opinion Greene's behavior towards other UPS employees constituted personal attacks, and that Greene's “paranoia ha[d] extend[ed] to him carrying a recording device onto UPS property and keeping files of paper with him in order to document anything that Jim [Psiones, Greene's supervisor at the Anchorage duty station, ] says or does. This to me sounds like someone who is more interested in revenge than coming to work to fly airplanes.” [DN 50-51, at 1.] Similarly, Captain Peyton Cook, (“Cook”), emailed Psiones on September 23 and stated that “Captain Greene's hostile and volatile personality towards fellow crew members and UPS management jeopardizes the conduct of safe flight operations.” [DN 50-52, at 1.]

         Another pilot, Marc McDermont, (“McDermont”), stated that in his first encounter with Greene, during a layover in Hong Kong in July 2013, “Greene spoke quite vociferously and at great length about his interactions with the company and the Kentucky Department of Revenue. He stated that there was conspiracy between UPS and the Kentucky Department of Revenue to harm him financially and to impeach his character.” [DN 50-53.] McDermont also stated that, during their time in Hong Kong, Greene “said that UPS had hired several hit men who were associated with UPS' attorney….Captain Greene then stated that he had developed so much evidence of their plot to kill him that it had made it impossible for UPS to carry through with the assassination.” [Id.] Following the internal investigation and the two disciplinary hearings, UPS decided to require Greene to submit to an additional medical examination, in accordance with the collective bargaining agreement. Greene failed to attend the first exam, came to the doctor's office for the second scheduled exam, but refused to be examined, and failed to attend the third scheduled appointment. Thereafter, his employment with UPS was terminated on November 22, 2013. [DN 50-28, at 2.]

         Following Greene's termination, IPA filed a grievance on his behalf. [DN 50-18, at 6.] The ensuing arbitration was delayed until September 2014 due to changes in attorneys and arbitrators, as well as scheduling conflicts. In the days leading up to the arbitration, Arnold Feldman, (“Feldman”), Greene's personal attorney at that time, requested that IPA completely withdraw itself from active participation in Greene's case. [DN 50-48.] Moreover, Feldman asked that Greene, rather than IPA, be allowed to appoint the two union representatives to sit on the System Board. [Id. at 2.] In response, Cutler agreed to allow Feldman to “represent Captain Greene at the hearing, to make an opening statement and closing statement or brief, present witnesses, cross-examine witnesses, make objections and motions and otherwise fully participate in the hearing.” [DN 50-49, at 1.] However, Cutler reserved IPA's right to “participate fully in the hearing and the proceedings leading up to the hearing, ” and made the note that turning complete control of the arbitration over to Greene “would be an abdication of [IPA's] obligation to the membership as a whole.” [Id.] Pursuant to the collective bargaining agreement, IPA declined to allow Greene to appoint the two union representatives. Thereafter, Greene moved unsuccessfully to have IPA excluded completely from the arbitration proceedings. [DN 50-50, at 2.]

         This lawsuit followed and, generally speaking, Greene claimed that in handling his termination grievance, IPA violated both its duty of fair representation and certain provisions of the Labor-Management Reporting and Disclosure Act. [DN 1.] It is unclear whether IPA knew of the filing of this lawsuit days before the arbitration hearing, but Cutler nevertheless attended that hearing. [DN 50-18, at 15.] In a vote of 3-2, Greene's termination was upheld. [DN 50-47.] Among other findings, the arbitrator noted Greene's “fixation” on the notation, stating that it “raised a legitimate medical issue about his judgment and focus.” [Id. at 51.] The arbitrator further described Greene's conduct as “occupational self-destruction beyond the remedial authority of [the System Board.]” [Id. at 55.] Finally, the arbitrator found “no evidence of collusion between the Company and the Union.” [Id. at 56.]

         When Greene initially filed this lawsuit, he was still being represented by Feldman, but Feldman eventually moved to withdraw in November 2015. [DN 25.] Since that time, Greene has represented himself, pro se. On November 21, 2016, this Court granted summary judgment in favor of IPA on all of Greene's claims. [See DN 78, 79.] Greene appealed, [DN 80], and the Sixth Circuit Court of Appeals affirmed this Court's decision. [DN 87.] In the interim period between Greene filing his notice of appeal and the Sixth Circuit's affirmation of this Court's previous decision, IPA filed the instant Motion for sanctions against Greene and for a protective order.

         B.

         In addition to filing a Motion for summary judgment, IPA also filed an original Motion for sanctions on August 5, 2016. [DN 54.] This Court granted IPA's Motion for summary judgment and denied its Motion for sanctions. [DN 78.] In that initial Motion for sanctions, IPA claimed that on July 26, 2016, the day after it filed its Motion for summary judgment, Greene sent Christopher Harper, (“Harper”), one of IPA's witnesses, a “threatening and intimidating email.” [DN 54-1, at 2.] IPA had previously submitted Harper's declaration in support of its Motion for summary judgment. [See DN 50-62.] In his declaration, Harper described the efforts he took to have Greene's notation corrected or removed, and stated that IPA did not attempt to hinder his assistance of Greene. [Id.] The July 26 email sent from Greene to Harper states [sic throughout]:

         Dear Chris,

Here's some great questions that have been already crafted for you to answer in a Federal Court of law under a lie detector. Thought it might be helpful to give you a head start on how to formulate your answers:
The one question I have is who wrote Harper's declaration? It wasn't him. Looks like the IPA had their hand in this. Most people do not know how to write a declaration much less the format used.
What a terrible shame to think you were coerced to aid and abet in a Federal Crime. It's very clear you do not realize the magnitude of what you are implicating yourself in, with UPS & IPA efforts trying to thrown you under the bus to give them an alibi with your false and fraudulent “declaration, ” which is not even an affidavit. You have blatantly committed perjury in your falsely alleged true & correct words.
We will be quite anxious to get you under lie detector, as like you “I believe” you will be going to jail before this is all over. Your only hope to save yourself is with your truthful testimony as to who we both know put you up to this act of obstructing justice by knowingly aiding and abetting in a Federal Crime. (This is certainly no way to run an Airline.)
You should think long and hard about your conduct because it is already defeated with overwhelming evidence. The whole thing wreaks with the stench of vile filth and pathetic shame…I am very disappointed in you Chris Harper…My family and I will forgive you and hold you harmless for your complicity in this criminal attack against us as long as you come forward with your truthful testimony while you still can.
God Bless…………….Doug Greene & Family

[DN 54-3, at 4.] In this Court's Memorandum Opinion denying IPA's Motion for sanctions, this Court noted that this email was consistent with what the Court had come to expect from Greene throughout the course of this litigation: insults and inappropriate language such as calling individuals “incompetent, ” “paranoid, ” “senile, ” “intoxicated, ” “literally insane, ” “uneducated thugs, ” “a sadistic liar, ” “guilty of perjury, ” “a cabal of tyrants who think they are above the law, ” “UPS' errand boys, moles, bitches, whatever word you want to use in describing a traitor…Benedict Arnold, ” among many, many other childish and unbecoming insults. [See DN 78, at 48 (Court listing language used by Greene compiling from docketed filings in this case).] At the conclusion of that Memorandum Opinion, this Court noted that, although it chose at that time not to sanction Greene, it was not condoning his behavior and warned him that, setting aside his strong convictions regarding his case, it would not hesitate to sanction him in the future for similar behavior.

         In its instant Motion, IPA has included more information concerning Greene's behavior in this case. IPA notes that, on the same day Greene sent the above email to Harper, he also sent an email to Cutler. [See DN 83-1.] Attached to this Motion is a signed affidavit, (“Cutler Affidavit”), from Cutler attesting to the validity of ...


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