Debeikes v. Hawaiian Airlines, Inc. (141 F. Supp. 3d 1075, 2015)

ORDER GRANTING SUMMARY JUDGMENT AS TO THE MOTIONS TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT OF DEFENDANTS HAWAIIAN AIRLINES, INC. AND ASSOCIATION OF FLIGHT ATTENDANTS-CWA, AFL-CIO

Alan C. Kay, Senior United States District Judge

For the reasons set forth below, the Court GRANTS summary judgment in response to Defendant Hawaiian Airlines, Inc.’s Motion to Dismiss, or in the Alternative, Grant Summary Judgment, ECF No. 85, the Joinder thereto of Defendant Association of Flight Attendants-CWA, AFL-CIO, ECF No. 90, Defendant Association of Flight Attendants-CWA, AFL-CIO’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 94, and the Joinder thereto of Defendant Hawaiian Airlines, Inc., ECF No. 99.

PROCEDURAL BACKGROUND

On October 3, 2013, Plaintiff Matthew J. Debeikes (“Debeikes” or “Plaintiff’) filed a complaint against Defendant Hawaiian Airlines, Inc. (“Hawaiian Airlines”) and Defendant Association of Flight Attendants-CWA, AFL-CIO (“AFA”) (collectively, “Defendants”). Compl., ECF No. 1. The Complaint alleged that Defendants forced Plaintiff into early retirement on May 29, 2013. Id. ¶¶ 9,14, ECF No. 1. Specifically, the Complaint contended that Hawaiian Airlines violated the collective bargaining agreement (“CBA”) governing the terms and conditions of Debeikes’ employment with the company, and that AFA breached its duty to fairly represent Plaintiff as one of its bargaining unit members. Id. ¶¶ 11, 12.

On October 30, 2014, both Defendants moved for summary judgment. AFA filed a Motion for Summary Judgment (“MSJ”) as to Plaintiffs claim that it breached the union’s DFR, ECF No. 51, and Hawaiian Airlines filed a MSJ as to all of Plaintiffs claims, ECF No. 54.

On February 17, 2015, the Court granted Defendants’ MSJs as to all of Plaintiffs claims. ECF No.' 75. In the Order, the Court concluded that none of Plaintiffs claims, as presented in the Complaint, was viable. First, the Court found that Plaintiffs allegations of “constructive discharge,” related to Hawaiian Airlines’ “re-fus[al] to abide by the CBA,” were preempted by his breach of CBA claim. In addition, the Court found that the. claim of constructive discharge was unsupported on the merits. See Order at 26-30, ECF No. 75. Second, the Court concluded that it lacked jurisdiction to hear Plaintiffs breach of CBA claim against Hawaiian Airlines, given that Debeikes had retired and filed suit without exhausting the CBA’s grievaneé procedures. See id. at 39. Third, the Court concludeid that it must dismiss Plaintiffs breach of DFR claim against AFA because his breach of CBA claim was not viable, consistent with Blies-ner v, Commc’n Workers of Am., 464 F.3d 910, 913 (9th Cir.2006). See id. In the alternative, the Court also concluded that none of Plaintiffs factual allegations stated a viable breach of DFR claim. See id. at 40-63.

The Order dismissed Plaintiffs claims without prejudice and granted Debeikes 30:days’ leave to file an Amended Complaint. Id. at 64. On March 11, 2015, De-beikes filed his First Amended Complaint (“Am. Compl.”), again purporting to bring a hybrid § 301/fair representation claim against AFA and Hawaiian Airlines while also claiming “constructive discharge.” Am. Óompl. ¶¶ 8-14, ECF No. 80.

On March 25, 2015, Hawaiian Airlines filed its Motion to Dismiss, or in the Alternative, Grant Summary Judgment (“Hawaiian Airlines’ MTD/MSJ”), ECF No. 85, accompanied by a Concise Statement of Facts (“Hawaiian Airlines’ CSF”), ECF No. 86. AFA filed a Joinder to Hawaiian Airlines’ MTD/MSJ on March 31, 2015. ECF No. 90. On March 31, 2015, the parties' also attended a Final Pretrial Conference with- Magistrate Judge Puglisi. As memorialized in the conference minutes, the Court set a continued trial date, and Plaintiff requested to re-open discovery. He was expressly “advised to file [a] Motion for Additional Discovery.” Minutes of Conf. of Mar. 31, 2015, ECF No. 91. Plaintiff did not, however, proceed 'to file such a motion.

On April 14, 2015, AFA also filed its own Motion to Dismiss or, in the Alternative, for Summary Judgment (“AFA’s MTD/ MSJ”), EOF'No. 94, accompanied by a Concise Statement of Facts (“AFA’s CSF”), ECF No. 95.' Hawaiian Airlines' filed a Joinder to AFA’s MTD/MSJ on May 7, 2015. ECF No. 99.

On May 7, 2015, Plaintiff filed an Opposition to AFA’s MTD/MSJ, ECF No. 103, and a Concise Statement in Opposition, to AFA’s MTD/MSJ (“Plf.’s CSF — AFA”), ECF No. 105. On the same day, Plaintiff also filed an Opposition to Hawaiian Airlines’ MTD/MSJ, ECF No. 102, and a Com cise Statement in Opposition to Hawaiian Airlines’ MTD/MSJ (“Plf.’s, CSF — Hawaiian Airlines”), ECF No. 104. Neither of Plaintiffs Oppositions raised any issue related to discovery. On May 14, 2015, AFA filed a Reply Memorandum in Support of MTD/MSJ (“AFA Reply”), ECF No. 108, and Hawaiian Airlines filed a Reply Memorandum in Support of MTD/MSJ,, ECF No. 110 (“Hawaiian Airlines Reply”), ECF No..110. Hawaiian Airlines’ MTD/MSJ and AFA’s MTD/MSJ were set for a consolidated hearing on May 28, 2015. See Notices of Hearing on Motions, ECF Nos. 93, 96.

On May 11, 2015, the Court issued a Minute Order observing that Defendants’ MTD/MSJs were filed after the dispositive motions deadline had passed. The parties were therefore “encouraged to stipulate to an extension of the' dispositive motions deadline.” If such an agreement was not possible, the parties were “directed to seek a conference regarding such extension with Judge Puglisi prior to the hearing scheduled for May 28, 2015 on Defendants’ motions.” ECF No. 107.

The parties did not reach an agreement as to a stipulation to extend the dispositive motions-deadline. Instead, the parties attended a telephonic status conference with Magistrate Judge Puglisi on May 27, 2015, after which the Court issued an order extending the dispositive motions deadline, nunc pro tunc, to April 15, 2015. This allowed Defendants’ motions to be considered timely. Minutes of Conf. of May 27, 2015, ECF No. 116. The Court’s Minutes also reflect that Plaintiffs counsel raised at the May 27, 2015 status conference that “he would like to depose the declarants who submitted declarations in support of the Motion to Dismiss or, in the Alternative, for Summary Judgment.” Id..

Plaintiffs counsel raised the same request the next day at the Court’s scheduled hearing on Defendants’ summary judgment motions. He made an oral motion to continue, the hearing and read the minutes of the May 27, 2015 conference into the record. The Court granted Plaintiffs oral motion to continue' the hearing, in order to allow Plaintiff time to file a written motion to reopen discovery. See Minutes of Hearing of May 28, 2015', ECF No. 117.'

Plaintiff filed his Motion to Reopen Discovery on June 16, 2015. ECF No. 121. Magistrate Judge Puglisi denied Plaintiffs motion in its entirety on July 17, 2015, for the reasons explained in his Order Denying Plaintiff Matthew J. Debeikes’ Motion to Reopen Discovery. ECF No. 126. Plaintiff appealed Magistrate Judge Puglisi’s order on July 27, 2015, ECF No. 127, and the Court set a hearing on Plaintiffs appeal for September 3, 2015, ECF No. 130.

The Court denied Plaintiffs appeal on October 9, 2015, for the reasons set forth at length in its Order Affirming the Magistrate Judge’s Order Denying Plaintiff Matthew J. Debeikes’ Motion to Reopen Discovery. ECF No. 139. The Court subsequently heard oral arguments on Defendants’ MTD/MSJs on October 22, 2015.

FACTUAL BACKGROUND

As a preliminary matter, the Court -will consider documents outside the pleadings in resolving the instant motions. If matters outside the pleadings are presented to and not excluded by the Court on a motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), the motion is treated as one for summary judgment under Rule 56, and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Where, as here, a movant expressly styles a motion as requesting dismissal or summary judgment in the alternative, a nonmovant is considered to have been “fairly apprised that the district court may look beyond the pleadings.” Morrow v. City of Glendale, No. 92-56286, slip op. at *1, 1994 WL 87206 (9th Cir. Mar. 17, 1994).

Additionally, the Court will incorporate below the relevant factual findings set forth in its prior Order. See, e.g., Illinois Nat’l Ins. Co., Inc. v. Nordic PLC Constr., Inc., Civ. No. 11-00515 SOM-KSC, 2013 WL 3975668 *1 n. 1 (D.Haw. July 31, 2013) (resolving summary judgment motion by “incorporat[ing] the facts and procedural history set forth in its prior orders by reference” and “repeating] only the most salient details”); Wapato Heritage, LLC v. U.S., No. CV-08-177-RHW, 2009 WL 3782869 *1 (E.D.Wash. Nov. 6, 2009) (“The Court incorporates by reference herein the facts set forth in its prior summary judgment order.”). Facts determined on the basis of the instant briefing' are integrated below with the Court’s recitation of its relevant prior factual findings.

Plaintiff was employed as a flight attendant by Hawaiian Airlines from July 9, 1986 to May 29, 2013, during which time he was a member of AFA. Order at 3, ECF No., 75. During the period of De-beikes’ employment, a CBA between AFA and Hawaiian Airlines covered the terms and conditions of employment for flight attendants. Hawaiian Airlines maintained a set of “House Rules” during Debeikes’ employment. They provide, that , sexual harassment is unacceptable and may result in discipline, including discharge. ML The company also maintained a Discrimination and Harassment-Free Work Place Policy (the “Policy”), a violation of which could result in discipline, including discharge. Id. at 3-4. The Policy prohibits sexual harassment and provides specific examples of sexual harassment, including: verbal harassment,,verbal abuse, physical harassment, visual harassment,, and unwanted sexual advances or threats of reprisal. Id. at 4.

On or about January 14, 2013, Plaintiff served as a flight attendant on a flight from Maui to Seattle with Jane Doe 1 (“Doe 1”). During that flight, Plaintiff engaged her in what his declaration testimony describes as “off-color banter.” He also discussed with her certain “graphic” online content. During the return flight the next day, it is undisputed that Plaintiff attempted to massage Doe l’s shoulder. Id. Plaintiff also admits that he “may” have touched her again later in the flight. Id. at 5. A few days later, flight attendant Cindy Burt (“Burt”), who was also on the January 14, 2013 flight, told Plaintiff she was displeased with his actions and statements toward Doe 1. Id.

Debeikes wrote an apology letter to Doe 1 and had it delivered to her by another flight attendant. Plaintiff later met with his supervisor, Susan Moss (“Moss”), to describe his conduct toward Doe 1, without disclosing names or dates. Moss received further reports regarding the incident from Burt and the In-Flight Manager for Hawaiian Airlines to whom Doe 1 had recounted the incident in detail. Id.

On or about January 30, 2013, Hawaiian Airlines informed Debeikes that it was holding him out of service with pay, pending an investigation into whether Debeikes had violated the company’s House Rules and Policy. Id. The letter informing Plaintiff of the investigation stated broadly that the company had “received reports of potentially improper conduct on a recent flight.” Id. at 6. Debeikes received a call from AFA representative Scott Henton (“Henton”) a few days later and discussed the situation with him. Id.

On March 8, 2013, Hawaiian Airlines personnel met with Plaintiff for a fact-finding interview. Debeikes was accompanied by AFA representatives Scott Akau (“Akau”) and Henton, who also met with Debeikes to discuss the investigation during the hour prior to the meeting. At the beginning of the meeting, Henton and Akau requested to examine all documents pertaining to the investigation, citing the CBA’s § 23.E.10.C. Id. CBA § 23.E.10.C states:

When a Flight Attendant attends a meeting that may result in disciplináis action, the Flight Attendant and Association member will be allowed adequate time during the meeting to privately review all documents or reports relating to such action.

Id. at 7.

Hawaiian Airlines refused to turn over any investigatory documents. It was the company’s position that CBA § 23.E.10.C applied only to disciplinary proceedings, and not to fact-finding interviews. AFA disagreed, and Henton and Akau instructed Debeikes not to answer questions. Having reached an impasse over their conflicting interpretations of CBA § 23.E.10.C, the parties terminated the meeting. Id.

On March 29, 2013, by letter, Hawaiian Airlines indicated that it wanted to complete its investigation and asked Debeikes if he wanted to be interviewed again. The letter indicated that if he did not participate, the investigation would be concluded without his input. It also stated that Hawaiian Airlines still refused to provide “all documents related to and generated from this investigation,” and it described the subject of the investigation broadly as “allegations that you may have engaged in conduct violating Company House Rules and the Discrimination and Harassment-Free Work Place policy.” Id. at 8.

On April 4, 2013, Henton sent Debeikes a letter on behalf of AFA, advising him of his rights and pointing out that the company could not penalize him for choosing not to attend the interview. The letter noted that AFA continued to disagree with Hawaiian Airlines regarding whether its refusal to produce documents violated the CBA terms. Id. Henton’s letter also stated:

“The decision to participate, or not, in the Company ‘EEOC’ investigation is yours, however I would advise you that in my experience, in the vast majority of cases, statements made by the accused, are used as evidence against the accused.”

Id. at 8-9.

Nonetheless, Debeikes agreed to meet with Hawaiian Airlines personnel again on April 5, 2013. Debeikes was accompanied to the interview by Henton and Akau, who also met with him before the meeting. Id. It is the declaration testimony of AFA’s attorney, Jay Trumble (“Trumble”), that he also met with Debeikes before the meeting and repeatedly told Debeikes not to attend. He indicates that he told Plaintiff that AFA continued to disagree with Hawaiian Airlines’ position regarding whether CBA § 23.E.10.C obligated the company to produce investigation documents at that time, but that Plaintiff and AFA would be able to review the documents if he waited for the disciplinary hearing. Id.

Trumble’s declaration adds that Plaintiff asked him no questions regarding AFA’s position. Id, Instead, Plaintiff stated that he wanted to “get.it over with,” because his anxiety was high and he had been held out of service for weeks. Id. at 10-11. Plaintiffs own declaration testimony confirms that Trumble warned him that Hawaiian Airlines may have had another complainant come forward, and that could be why the company did not want to share its documents. Id. at 11.

In the course of the April 5, 2013 interview, Plaintiff made a variety of admissions regarding the conduct that was the subject of the company’s investigation. He stated, inter alia, that he attempted to give Doe 1 a shoulder rub, may have touched her again thereafter, and made sexually explicit comments to her.-Plaintiff was also interviewed at the meeting about conduct related to another flight attendant, Jane Doe 2 (“Doe 2”). Debeikes was-asked about allegations that he, inter alia, rubbed her shoulders and made several specific comments of a highly graphic sexual nature. Id. Debeikes did not deny the accusations regarding Doe 2 and instead indicated that he may have done it, but did not remember. Id. at 12. Following the meeting, Hawaiian Airlines formally concluded that Debeikes had made unwanted sexual comments to and unwanted physical contact with Does 1 and 2. Id.

Meanwhile, AFA and Hawaiian Airlines had continued to discuss their disagreement regarding CBA § 23.E.10.C and the company’s obligation to provide investigatory documents. Id. at 13. On April 3, 2013, AFA representatives -including Henton, Akau, and Trumble had met with Hawaiian Airlines representatives to discuss the dispute. Even earlier, on March 25, 2013, Trumble had sent an email to Sharon Sop-er, AFA’s Master Executive Council (“MEC”) President, regarding the disagreement, Id,

On April 12, 2013, one week after De-beikes’ interview with the company, AFA filed Grievance No. 46-99-02-07-13, entitled “Grievance: MEC: EEOC Investigation Documents” (the “Grievance”). It challenged Hawaiian Airlines’ refusal to provide documents in what AFA considered a violation of the CBA, specifically § 23.E.10.C. See Grievance, ECF No. 135. Trumble and Henton’s declarations explain that the Grievance was what the union refers to as a “MEC grievance,” a form of prospective class action grievance filed under CBA § 23.D on behalf of all members to challenge Hawaiian Airlines’ misinterpretation or misapplication of the CBA terms. Order at 14, ECF No. 75.

Additional declaration testimony submitted by AFA explains that a MEC griev-anee differs from a Local Executive Committee (“LEC”); grievance under CBA § 23.C, which AFA could have filed had Debeikes actually been disciplined. LEC grievances challenge discipline issued to individuals and seek retroactive remedies, including reinstatement and backpay. Id. at 14 n. 8; see also Decl. of Scott Henton (“Henton Decl”) ¶¶ 5, 7, 9-11, ECF No. 95-1 (discussing grievance form differences).

Trumble’s declaration testimony is that, had Plaintiff gone through with the disciplinary hearing, AFA would have filed an individual LEC grievance on his behalf regárding the company’s denial of documents and any discipline he was issued. Order at 15, ECF No. 75. Henton and Akau have also attested that AFA would have filed such a grievance and taken it to arbitration, had Debeikes gone to the hearing and been disciplined. Henton Decl. ¶ 32,’ ECF No. 95-1; Decl. of Scott Akau (“Akau Decl.”) ¶ 4, ECF No. 95-2.

It is also Henton’s declaration testimony that AFA chose to file a MEC grievance, rather than an individual LEC grievance, in order to attain relief for both Honolulu and Los Angeles-based flight attendants. Henton Decl. ¶¶ 5-10, ECF No. 95-1. Specifically, the Grievance requested that Hawaiian Airlines “[c]ease and desist refusal to provide documentation in any and all Company investigations” and “[r]everse the discipline and reinstate and make ■whole any and all affected, flight[] attendants that were disciplined or discharged based upon the investigations.” Grievance, ECF No. 135.

, Henton attests that it is AFA’s normal practice to file MEC grievances, rather than individual LEC grievances, “where a whole class of' Flight Attendants are affected, both in-Honolulu, and in Los Ange-les,” as- a result of a CBA dispute with Hawaiian, Airlines. Henton Decl. ¶ 10, ECF No. 95-1.: This is evidently because filing , an individual “Non-Disciplinary Grievance” under CBA § 23.C “would do nothing for the Los-Angeles based Flight Attendants who could be adversely affected by Hawaiian Airlines’ interpretation” of its CBA obligations. Id. ¶¶ 7-8., In addition, had it not filed a MEC grievance, AFA may have had to file individualized LEC grievances “for Mr. Debeikes ... and then every other Flight Attendant who could be denied [] documents at the investigatory interview stage.” Id. ¶ 9.

Notice of the Grievance was never provided to Plaintiff. Order at 15, ECF No. 75. Declarations submitted by AFA indicate that it is not the union’s policy or practice to provide individual members with copies of MEC grievances or “disclose files related- to'open, pending issues.” Id. at 14-15. '

On May 21, 2013, Hawaiian Airlines informed Debeikes by letter that it had concluded its investigation and believed he had violated the company’s Policy and House Rules related to sexual' harassment and unprofessional conduct. A disciplinary hearing was set for May 30, 2013. Id. at 15.

On May 23,' 2013, Plaintiff spoke by telephone with Akau and’ asked him whether he could retire from Hawaiian Airlines before the disciplinary hearing. Id. at 15-16. Akau did not know but said he would find out. Id. at 16. The next day, having had an AFA representative check with the company, Akau told Plaintiff that retirement would be an option. Akau also referred Plaintiff to Trumble, who advised Debeikes that he probably would be terminated by Hawaiian Airlines. Trumble further suggested that by retiring before the hearing, Plaintiff could retain the benefits of continued flight privileges with the company and an employment record free of a harassment-related termination. Id.

On, May 29; 2013, Debeikes tendered a retirement letter to Hawaiian Airlines. He also signed formal retirement paperwork with the company, for an effective retirement date of May .30, 2013. Id. During the meeting at which he signed the paperwork, Debeikes expressed some vacillation regarding retirement and asked whether there were alternative remedies besides termination. Id. at 17..

Debeikes’ declaration testimony is that a Hawaiian Airlines employee, Gail Kim-Moe (“Kim-Moe”), said “I would be terminated if I attended the May 30, 2013 disciplinary hearing.” His declaration testimony is that Kim-Moe’s statement was made in the presence of Debeikes’ direct supervisor, Cheryl Price (“Price”), Senior Manager, In-Services, who “never corrected Gail Kim-Moe that termination was imminent.” Declaration of Plaintiff Matthew J. De-beikes (“Debeikes Decl.”) ¶¶ 1-2, ECF Nos. 104-1, 105-1. Plaintiff contends for the first time in his Opposition declarations that he shared Kim-Moe’s comment with Henton. See Debeikes Decl. ¶ 13, ECF Nos. 104-1, 105-1.

Plaintiff has not disputed that he was also reminded- by Kim-Moe that he did not have to retire and could instead proceed with the hearing. Order at 17, ECF No. 75. He contends, however, that “the company put me in a situation where if I chose to attend the hearing and lost (as I was told I would before any witness testified or document was received), I would [be] unemployed with a sexual harassment on my record.” He also cites concerns that he would have had “no way to visit my daughter” if he were terminated, because flight benefits were not guaranteed to terminated (versus retired) employees. Debeikes Decl. ¶¶ 7-8, ECF No. 105-1.

After Plaintiff retired, he was no longer a member of AFA. Because AFA may only file grievances on behalf of members, it could not file grievances on Debeikes’ behalf from his retirement date forward. Order at 16 n.10, ECF No. 75. Debeikes’ declaration testimony is that he was “unaware that signing the paperwork released AFA from any obligation to represent me.” Id. (citing Debeikes Decl. ¶ 19, ECF No. 70-1). Regardless, uncontroverted declaration testimony submitted by AFA confirms that, to the recollection of AFA’s employees and based upon a review of the union’s voicemail and email records, Debeikes never communicated to AFA any “desire to have a grievance filed” related to “Hawaiian Airlines having ‘predetermined’ prior to the disciplinary hearing that it would terminate his employment.” Henton Decl. ¶¶ 27-29, ECF No. 95-1; Akau Decl. ¶ 3, ECF No. 95-2.

On or about May 30, 2013, Plaintiff asked Hawaiian Airlines whether he could rescind his retirement. Order at 18, ECF No. 75. Plaintiff initially was told by a Hawaiian Airlines employee that he could “un-retire,” although the company would move forward with his disciplinary hearing. However, Hawaiian Airlines ultimately conveyed to AFA that it was unwilling to rescind Plaintiffs retirement, which in turn was conveyed to Debeikes. Id.

As noted above, AFA’s class-based MEC grievance regarding Hawaiian Airlines’ production of investigation documents had been filed on April 12, 2015, and it remained pending at the time of Plaintiffs retirement. See Grievance, ECF No. 135. Henton’s declaration testimony is that Hawaiian Airlines and AFA routinely extend deadlines applicable to grievance and arbitration proceedings, which take varying amounts of time to reach resolution. Hen-ton Decl. ¶¶ 1.9-21, EOF No. 95-1. In this instance, the SBA issued its written Opinion and Award on July 15, 2015, over two years after the Grievance initially was filed. See Opinion and Award, EOF No. 132.

As set forth in that Opinion and Award, the SBA concluded that “the Company violated Section 23.E.10.C with regard to the cases of Doe I and Doe II” (Doe I evidently being Plaintiff). However, the Opinion and Award limited its remedy to ordering that “[t]he Company shall cease and desist from such violations in future cases.” Id. at 20. It observed that neither “Doe I” nor “Doe II” filed disciplinary grievances and that “Doe I” (Plaintiff) had already retired. Id. at 6.

STANDARD

As noted above, the Court will resolve the instant, motions,by considering documents outside the pleadings. The standard of review applicable to summary judgment motions under Rule 56 therefore applies. Fed. R. Civ. P. 12(d).

A party is entitled to summary judgment on any claim or defense if it can be shown “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th Cir.2012) (quoting Fed. R. Civ. P. 56(a)). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by either “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P, 56(c)(1).

A genuine issue of material fact exists if “a reasonable jury could return a verdict for the nonmoving party.” United States v. Arango, 670 F.3d 988, 992 (9th Cir.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Conversely, “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Summary judgment will be’granted against a party that fails to demonstrate facts sufficient to establish “an element essential to that party’s case and on which that party will bear the burden of proof at trial.” Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir.2010) (citation omitted).

The movant has the burden of persuading the court as to the absence of a genuine issue of material fact. Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.2010). If the movant satisfies its burden, the nonmovant must present evidence of a “genuine issue for trial,” Fed. R. Civ. P. 56(e), that is “significantly probative or more than merely colorable,” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).

When evaluating a motion for summary-judgment, the court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott, 550 U.S. at 378, 127 S.Ct. 1769. The court may not, however, weigh conflicting evidence or assess credibility. In re Barboza, 545 F.3d 702, 707 (9th Cir.2008). If “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505.

DISCUSSION

As explained in the Court’s prior Order, the Railway Labor Act (“RLA”) applies to the airline industry and creates a mandatory arbitration scheme to handle disputes “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” in covered industries. 45 U.S.C. §§ 153, 181. The statute’s reservation of arbitral jurisdiction in such cases was designed to promote stability in labor relations and ensure the “prompt and orderly settlement” of claims outside the courts. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (citing 45 U.S.C. § 151(a)).

Nonetheless, where an employee in a covered industry contends both that (1) her employer breached a CBA, and (2) her union breached its DFR in regard to challenging the employer’s CBA violation, she may bring both of her claims in federal court. This is referred to as a “hybrid § 301/fair representation” claim. DelCostello, 462 U.S. at 165, 103 S.Ct. 2281. Such is the nature of Debeikes’ claim in this case. See generally Am. Compl., ECF No. 80.

The substantive law of hybrid § 301/fair representation claims demands that a plaintiff prove both the union’s breach of the DFR and the employer’s breach of the CBA See Bliesner v. Commc’n Workers of Am., 464 F.3d 910, 913-14 (9th Cir.2006); Hadley v. Hawaii Gov’t Emps. Ass’n, 2006 WL 695036, *2 (D.Haw. Mar. 13, 2006). Thé Ninth Circuit has clarified that a plaintiff must demonstrate each such breach. If she does not, her hybrid § 301/fair representation claim is nonviable in its entirety. See Bliesner, 464 F.3d at 913 (affirming summary judgment without reaching the issue of the union’s DFR violation, because the plaintiff-employee failed to show that‘her employer breached the CBÁ). Accordingly, this Court may not adjudicáte a claim against either Defendant individually if Debeikes’ claim against the other Defendant is not also viable.

In his Amended Com'plaint, Debeikes’ hybrid § 301/fair representation claim encompasses the following allegations: “(1) that the AFA failed to even consider a meritorious 23(C) grievance and (2) that Hawaiian predetermined to terminate De-beikes prior to any hearing, i.e. before documentary evidence or witnesses testified; and Debeikes was forced to resign as a result.” Opp. to AFA’s MTD/MSJ at 2-3, ECF No. 103; Opp. to Hawaiian Airlines’ MTD/MSJ at 2, ECF No; 102; see also Am. Compl. ¶¶ 8-14, ECF No. 80. The Court examines Plaintiffs claims in turn and finds that summary judgment is appropriate as to the claims against both Defendants. See infra Sections II-III. As a preliminary matter, however, the Court briefly addresses AFA’s class-based MEC grievance and the SBA’s July 15, 2015 Opinion, and Award. The Court finds that the Opinion and Award need.not affect the Court’s resolution of the instant motions, for the reasons explained below.

I. The Opinion and Award on AFA’s Class-Based MEC Grievance Does Not Affect the Instant Order

The Court concludes that it need not consider the SBA’s Opinion and Award in resolving the instant motions and need not delay such resolution on the basis of any continuing appeal proceedings related thereto.

AFA filed its class-based MEC Grievance (on behalf of its full membership) on April 12, 2013, as . set forth above. That grievance, of which Plaintiff was not informed, related to “EEOC Investigation Documents” and challenged Hawaiian Airlines’ “refusal to provide documentation” during the company’s “confidential ‘EEOC investigation^].’ ” The grievance requested that Hawaiian Airlines “cease and desist refusal to provide documentation in any and all Company investigations” and.“[r]e-verse the., discipline and reinstate and make whole any and all affected flight attendants .that, were disciplined or discharged based upon [these] investigations.” Grievance,'ECF No. 135.

The Opinion and Award, issued over two years, later on July 15, 2015, concluded that “the Company violated Section 23.-E.lO.c. [of the CBA] with regard to the cases of Doe I and Doe II,” with “Doe I” evidently being Plaintiff. The Board ordered that Hawaiian Airlines “cease and desist from such .violations in future cases.” Opinion and Award at 20, ECF No. 132. The Board did not, however, order any reinstatement or reversal of discipline for any employees, To the contrary, the Opinion and Award specifically notes that neither “Doe i” nor “Doe II” filed individual disciplinary grievances, and that “Doe I” (Debeikes) had already retired. Id. at 6.

By its own terms, the Opinion and Award did not create any relief for Plaintiff as a retired- member of AFA. Plaintiff is- therefore incorrect to suggest that the Opinion and Award itself “entitl[es] Plaintiff to relief as to reinstatement and back pay.” Plf. Matthew J. Debeikes’ Supp. Br. Regarding the Impact of the Opinion of the Arbitrator at 4, ECF No.' 138. Rather, the Opinion and Award limited its remedy to a prospective cease and desist order applicable during future employee investigations. As AFA and- Hawaiian Airlines emphasize in their supplemental briefs, this relief has no bearing on the Court’s decision as to whether an individual remedy may be available for Plaintiff, as a retiree, on his hybrid § 301/fair representation claim against AFA and Hawaiian Airlines.

The Court observes that AFA’s underlying Grievance also did not address the merits of Plaintiffs current claim: that Hawaiian Airlines “predetermined to terminate” and/or “constructively discharged” him in violation of the CBA’s alleged “due process” guarantees. That allegation is distinct from the claim presented in AFA’s MEC Grievance: that Hawaiian Airlines withheld investigatory documents in violation of the CBA’s Section 23.E.10.C. Although the SBA’s findings may help inform the Court’s understanding of this case, they do not resolve the specific claims currently pending before the Court.

The Court also need not delay its resolution of Defendants’ MTD/MSJs pending any continuing appeal proceedings related to the Opinion and Award. Hawaiian Airlines has filed a petition to vacate the Opinion and Award, which is currently pending before Magistrate Judge Kurren. See Hawaiian Airlines, Inc. v. Ass’n of Flight Attendants, Civ. No. 13-00369 BMK. As AFA points out in its supplemental brief, arbitration decisions are presumptively final under the CBA’s § 24.D.2 and subject only to narrow judicial review. See AFA’s Supp. Br. Responding to Minute Order Filed Sept. 8, 2015 at 3, ECF No. 136. More significantly, the fact remains that the Opinion and Award does not create an individual remedy for Plaintiff or affect his rights in this case. There is, accordingly, no reason to delay resolution of the instant motions pending Hawaiian Airlines’ appeal of the Opinion and Award.

Lastly, the Court notes that the Opinion and Award indicates that the SBA “retains jurisdiction over this case” for one year “should any dispute arise about the application of the cease and desist order and the application of Section 23.E.10.C as described in this Opinion.” Opinion and Award at 21, ECF No. 132. This narrow retention of jurisdiction as to the implementation of the SBA’s order does not divest the Court of jurisdiction to resolve Plaintiffs independent hybrid § 301/fair representation claim.

II. Plaintiffs Claim against Hawaiian Airlines Is Not Viable

In his Amended Complaint, Debeikes claims that Hawaiian Airlines “constructively discharged Plaintiff without ‘just cause’ ” by “predetermining] to Terminate Plaintiff in violation of the CBA’s due process requirement of a fair hearing in accordance with the CBA’s provisions set forth in Article 23.” Am. Compl. ¶ 13, ECF No. 80. In support, Plaintiffs Amended Complaint states that Kim-Moe informed Plaintiff at his retirement paperwork signing of May 29, 2013 that “he would be terminated if he went to [the] hearing” scheduled for the next day. Id. According to Debeikes’ declaration testimony, Kim-Moe’s statement was made in front of his direct supervisor, Price, who “never corrected Gail Kim-Moe that termination was imminent.” Debeikes Deck ¶ 2, ECF Nos. 104-1, 105-l.

Debeikes contends that this “predetermined” termination violated what he refers to as “the CBA’s due process requirement of a fair hearing.” Am. Compl. ¶ 13, ECF No. 80. He evidently views this due process/fair hearing requirement as implied by the CBA’s “express[] provision] that all cases of discharge, for whatever cause, shall be subject to the grievance procedure” and its establishment of procedures for “the presentation, negotiation, settlement or other disposition of grievances.” Id. His position is that “Hawaiian determining to terminate Plaintiff prior to any witness testifying or documents being presented was coercive,” and that a “jury question exists as to the voluntariness of Plaintiffs resignation as Hawaiian already told Plaintiff he would be terminated if he went to hearing.” Opp.. to Hawaiian Airlines’ MTD/MSJ at 4, ECF No. 102.

On these allegations, the Court concludes that it continues to lack jurisdiction to hear Debeikes’- breach of CBA claim against Hawaiian Airlines due to his failure to exhaust contractual remedies. In addition, to the extent that Plaintiff might intend his references to “constructive discharge” to present an independent tort claim, such claim is again preempted by his breach of CBA claim. Even if it were not preempted, the Court finds that such a claim would lack merit,

a. The Court Lacks Jurisdiction to Hear Debeikes’ Breach of CBA Claim Due to His Failure to Exhaust Contractual Remedies

The Court finds that it lacks subject matter jurisdiction to hear Debeikes’ breach of CBA claim where he did not first exhaust contractual remedies available under the CBA. The Court- reiterates this legal requirement, as set forth in its prior Order:

[Bjefore suing for an employer’s breach of a CBA in a hybrid § 301/fair representation case, an employee must first have exhausted contractual grievance procedures. See, e.g., Jackson v. S. California Gas Co., 881 F.2d 638, 646 (9th Cir.1989). Courts are to order resort to such grievance procedures “without dealing with the merits of the dispute” over the contract terms. United Paperworkers Int’l Untion, AFL-CIO, et al. v. Misco, Inc., 484 U.S. 29, 37 [108 S.Ct. 364, 98 L.Ed.2d 286] (1987); Soone v. Kyo-YaCo., Ltd., 353 F.Supp.2d 1107, 1115 (D.Haw.2005). That contractual grievance mechanisms should govern CBA interpretation disputes in the first instance is consistent with legislative policy favoring the resolution of labor disagreements outside the courts. See Soone, 353 F.Supp.2d at 1115. The Ninth Circuit has also clarified that a plaintiffs failure -to exhaust contractual grievance procedures bars a breach of CBA claim against his employer as well as a breach of DFR claim against his union. Carr [v. Pac. Maritime Ass’n], 904 F.2d [1313, 1317 (9th Cir.1990) ].

Order at 31, ECF No. 75.

Here, as Plaintiff admits, a comprehensive CBA between AFA and Hawaiian Airlines covered the. terms and conditions of employment for flight attendants, “during the entire period involved here.” Am’ Compl. ¶ 6, ECF No. 80. The CBA provides for grievance procedures related to both disciplinary actions (including discharge) and non-disciplinary actions. See AFA’s CSF Ex. 1-2, ECF Nos. 95-3, 95-4; Hawaiian Airlines’ CSF Ex. 1, ECF No. 86-2. Plaintiff admits in particular that “all cases of discharge, for whatever cause, shall be subject to the grievance procedure.” Am. Compl. ¶ 13, ECF No. 80.

However, no grievance was filed with respect to Plaintiffs alleged “predetermined termination.” Id. Debeikes claims that this is so . because AFA “faded to investigate and process” such a.grievance, even though AFA supposedly was “aware that Defendant Employer predetermined to terminate Plaintiff in violation of the CBA’s due process requirement of a fair hearing.” Id.; see also Opp. to AFA’s MTD/MSJ at 5, ECF No. 103 (“AFA never intervened or pursued a grievance regarding the denial of a fair -disciplinary hearing.”).

Three exceptions exist to excuse a plaintiffs ‘ failure to exhaust contractual remedies prior to filing a breach of CBA claim, where: (1) the employee’s use of the grievance procedure would be “futile,” (2) the employer’s conduct repudiates contractual remedies, or (3) the union’s actions breach its DFR in handling the grievance. See Vaca, 386 U.S. at 185, 87 S.Ct. 903; Glover v. St. Louis-San Francisco R.R. Co., 393 U.S. 324, 330, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); see also Carr, 904 F.2d at 1317-21 (examining and rejecting Plaintiffs invocation of all three exceptions). As Hawaiian Airlines points out, Debeikes’ Amended Complaint does not actually make any allegation that he attempted to pursue CBA remedies with respect to his “predetermined termination” or that any of the foregoing exhaustion exceptions applies to his case. However, the Court independently cohcludes that no such exception is applicable.

First, Plaintiff has not shown that resort to the, CBA grievance procedures would be “futile.” The fact that grievance, procedures are administered by union an.d company representatives does not by itself render resort to such processes futile, nor does the fact that administrators are “likely to rule against the [grievant] on the merits.” Addington v. US Airline Pilots Ass’n, 588 F.Supp.2d 1051, 1063-64 (D.Ariz.2008) (citations omitted). Futility is also generally inapplicable where “the plaintiff never puts his futility theory to the test by filing a protest.” Hawaii Teamsters & Allied Workers, Local 996, IBT v. City Exp., Inc., 751 F.Supp. 1426, 1432 (D.Haw.1990) (citing LeBoutillier v. Air Line Pilots Ass’n, 778 F.2d 883 (D.C.Cir.1985)); see also Hines v. Anchor Motor Freight, 424 U.S. 554, 563, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) (a plaintiff may not “sidestep the grievance machinery” under the CBA before he has attempted to use it).

Here, Debeikes did not attempt to grieve his alleged-“predetermined termination,” either before or after the scheduled disciplinary hearing. Instead, he retired and filed the -instant - lawsuit. He argues that “the Hawaiian tribunal would have-been biased against him, i.e., predetermined to terminate him” at his disciplinary hearing. Opp. to Hawaiian Airlines’ MTD/MSJ at 4, ECF No. 102. In essence, he suggests that it would have been “futile” to attend his disciplinary hearing. But even assuming arguen-do that this was- the, case, Plaintiff has not offered evidence that it would have been “futile” to initiate a grievance and arbitration in response to the company’s actions. Plaintiff never tested the futility of the -CBA’s grievance and arbitration procedures, because he simply did not use them. City Exp., 751 F.Supp. at 1432.

As the Court noted in its prior Order, an employee’s choice to retire prior to invoking CBA grievance procedures also does not make resort to such processes “futile.” Order at 35, n.24, ECF No. 75 (citing Thovson v. Behavioral Health Resources, 3:12-cv-05424, 2012 WL 4514431 *3-5 (W.D.Wash. Oct. 1, 2012); Hope v. Cont’l Baking Co., 729 F.Supp. 1556, 1559 (E.D.Va.1990), Lucas v. Legal Aid Soc’y, No. CV-88-1670, 1989 WL 15778 *2 (E.D.N.Y. Feb. 16, 1989)). As the Lucas' court observed, “permitting retired employees to circumvent agreed upon grievance procedures couíd, in effect, create a class of ‘preferred claimants’ who, at their own convenience, could bypass those provisions created precisely for resolution of the claims they would be raising.” Lucas, 1989 WL 15778 at *2.

Second, Plaintiff suggests but fails to demonstrate that Hawaiian Airlines “repudiated” the CBA’s grievance procedures. Opp. to Hawaiian Airlines’ MTD/ MSJ at 7, ECF No. 102. His position is that Hawaiian Airlines would not have offered him “a fair hearing” as to the discipline he was to be issued. Am. Compl. ¶ 13, ECF No. 80. But this is not evidence that the company would have refused to participate in a grievance and arbitration as to that discipline. Exhaustion of contractual remedies is excused for repudiation “only if the employer repudiates-’ the - specific grievance procedures provided for in the CBA,” such as when it expressly takes the position that “the grievance procedures d[o] not govern the dispute.” Sidhu v. Flecto Co., Inc., 279 F.3d 896, 899 (9th Cir. 2002). Plaintiff offers no such evidence here.

Third, the Court finds that Plaintiff has not raised a genuine issue of material fact as to whether AFA breached its DFR by “failing], to investigate or process any grievance regarding the predetermined termination.” Am. Compl. ¶ 13, ECF No. 80. The. Court observes that the standard of review for such union action (or inaction) is high: courts generally must accord union decisions “substantial deference,” recognizing that the union “must balance many collective and individual interests when it decides whether and, to what extent to pursue a particular grievance.” Dutrisac v. Caterpillar Tractor Co., 749.F.2d 1270, 1273 (9th Cir.1986) (citation omitted).

Ministerial- or procedural union actions constitute DFR breaches where they are arbitrary, discriminatory, or in bad faith, but an exercise of the union’s judgment constitutes a DFR breach only where it is shown to be discriminatory or in bad faith. Burkevich v. Air Line Pilots Ass’n, Int’l, 894 F.2d 346, 349 (9th Cir. 1990); Nosie v. Ass’n of Flight Attendants-CWA, AFL-CIO, 722 F.Supp.2d 1181, 1196 (D.Haw.2010). The grievance process need not be error-free, and a plaintiff generally cannot recover for a union’s mere negligence. - Johnson v. U.S. Postal Serv., 756 F.2d 1461, 1465 (9th Cir.1985); Nosie, 722 F.Supp.2d at 1200 (citations omitted).

The Ninth Circuit hás also explained that an’ alleged breach of the DFR will excuse exhaustion of contractual remedies in only two situations:’(1) where the union has the “sole-power” under the CBA to invoke the grievance process 'and “wrongfully]” refuses to do so, or (2) where a grievant alleges a breach of the DFR with régard to the negotiation of the CBA terms themselves. Carr, 904 F.2d at 1319 (citing Vaca, 386 U.S. at 185, 87 S.Ct. 903; Williams v. Pac. Maritime Ass’n, 617 F.2d 1321,1328 (9th Cir.1990)).

■ Plaintiff makes no allegation that AFA breached its DFR in the course of negotiating the CBA terms. He does suggest, however, that AFA was “aware that Defendant Employer predetermined to [germinate Plaintiff in violation of the CBA’s due process requirement of a fair hearing” and nonetheless “failed to investigate or process any grievance regarding the predetermined termination.” Am. Compl. ¶ 13, ECF No. 80; Opp, to AFA’s MTD/MSJ at 5, ECF-No. 103 (“AFA never intervened or pursued a grievance regarding the denial of a fair disciplinary hearing.”)

' Plaintiffs theory that AFA failed to appropriately investigate or process this grievance is premised on Debeikes’ contention that he “notified AFA [of] the type of comments [Hawaiian Airlines] was making to Plaintiff prior to any’hearing (predetermined termination).” Opp. to AFA’s MTD/ MSJ at 5, EOF No. -103. Specifically, he claims he “informed Scott Henton of HAL’s comments to me and asked if I went to hearing and was terminated would I be able to keep my flight benefits.” De-beikes Decl. ¶ 13, ECF Nos. 104-1, 105-l. However, the only comment of a Hawaiian Airlines employee that he identifies as having 'suggested his “predetermined termination” is Kim-Moe’s alleged statement that he “would;be terminated” if he •attended his disciplinary hearing. De-beikes Decl. ¶¶ 1-2, ECF Nos. 104-1, 105-1.

The Court concludes, for the reasons explained below, .that Plaintiffs allegations do not raise a genuine issue of material fact as to whether AFA “wrongfully” refused to invoke any solely-held power that it had to initiate a grievance on Plaintiffs supposed “predetermined termination.” Carr, 904 F.2d at 1319.

First, it appears that AFA did not have the “sole” power to file such a grievance on Plaintiffs behalf under the CBA/ According to the agreement’s express terms, “Non-Disciplinary Grievances” under CBA § 23(C) may be brought by “[a]ny Flight Attendant or group of Flight Attendants who has a grievance concerning any action of the Company affecting such Flight Attendants).” CBA § 23(C)(1), AFA’s CSF Ex. 1 at HAL00406, ECF No. 95-3; Hawaiian Airlines’ ■ CSF Ex. 1 at HAL00406, ECF No. 86-2. The grievance must be filed in writing but can be signed by either “the grievant(s)” or “his/her representative.” Id. § 23(C)(2). This procedure is in contrast to that for class-action MEC grievances, which can be filed only by “the MEC President, or designee.” Id. § 23(D).

At the hearing of October 22, 2015, the Court asked counsel for AFA and Hawaiian Airlines to address the foregoing CBA provision and whether employees may indeed file them own grievances under CBA § 23(c). Counsel for AFA was uncertain, but counsel for Hawaiian Airlines indicated that this is a correct understanding of the CBA. Thus, assuming that Plaintiff himself had the power to initiate a grievance on his own behalf, his failure to exhaust contractual remedies cannot be waived under Carr. .

Second, regardless of whether Plaintiff was able to file his own grievance under CBA § 23(c), the Court also finds in the alternative that Plaintiff has not raised a genuine issue of material fact as to whether AFA “wrongfully” refused to pursue a grievance related to his supposed “predetermined termination.” This is so for at least two reasons.

First, the Court finds that it is not possible to conclude from the available evidence that AFA was even aware, prior to Plaintiffs retirement, that Plaintiff believed Hawaiian Airlines “predetermined to terminate” him. Because Plaintiff retired before making AFA aware of this issue, he foreclosed the union’s opportunity to initiate a grievance on such grounds.

Plaintiffs claim that AFA breached its DFR by failing to grieve his “predetermined termination” is premised on his factual contention that he “informed Scott Henton of HAL’s comments to me.” De-beikes Deck ¶ 13, ECF Nos. 104-1, 105-1. Kim-Moe’s comment regarding termination — the only one that Plaintiff identifies as having even suggested his “predetermined termination” — was made at some point just before or during the May. 29, 2013 meeting during which he tendered his retirement letter to Hawaiian Airlines and signed retirement paperwork. See id. ¶ 1; see also Order at 16, ECF No. 75.

It is undisputed that neither Henton nor any other AFA representative accompanied Debeikes to his meeting with Kim-Moe. Order at 17, ECF No, 75. Plaintiff also appears to have arrived to the meeting with a pre-prepared retirement letter. See supra n.12. As noted above, there is some uncertainty regarding the precise order in which statements were made by Plaintiff and Kim-Moe on May 29, 2013. What is certain, however, is that Plaintiff could not have shared Kim-Moe’s comment with Henton before retiring, and that this deprived AFA of any opportunity to grieve Plaintiffs alleged “predetermined termination.”

At the Court’s hearing of October 22, 2015, Plaintiffs counsel affirmatively stated that Plaintiff shared' Kim-Moe’s statement with Henton for the first time after May 29, 2013, by leaving phone messages for him the • following day. Plaintiff, who was present at the hearing, did not dispute this assertion. ■ .

In addition, Henfon’s unrebutted declaration testimony is that he was on vacation from May 22, 2013-June 7, 2013. Henton Decl. ¶ 27, ECF No. 95-1. Henton’s supplemental declaration states that Debeikes’ assertion that he “informed me of comments made by Gail Kim-Moe or any representative of Hawaiian Airlines on or after May 29, 2013 ... [is] not true,” and that Henton did not receive any telephone calls from Plaintiff or even access his own AFA-issued cellular telephone while on vacation. Henton Supp. Decl. ¶¶ 4-6, ECF No. 108-2.

Plaintiff does not claim to have informed Akau or Trumble of Kim-Moe’s statement, even though he had spoken with Akau and Trumble as recently as May 27-28, 2013 and it appears that they (unlike 'Henton) were available on May 29, 2013. See Plf. Matthew J. Debeikes’ Response to Def. Hawaiian Airlines, Ine.’s First Request for Answers to Interrogatories at 4, ECF No. 55-14.

The declaration testimony of Debeikes’ AFA representatives is, to the contrary, that “AFA was not aware that Hawaiian Airlines breached the CBA by predetermining to terminate Plaintiff before the disciplinary hearing.” Henton Decl. ¶ 9, ECF No. 94-1; Akau Decl.' ¶ 3, ÉCF No.-95-2. To the recollection of AFA’s employees and based upon: a review of the union’s voicemail and email records, Debeikes never communicated to AFA any desire to have a “predetermined termination” grievance filed against Hawaiian Airlines prior to his retirement. Henton Decl. ¶¶ 27-29, ECF No, 95-1; Akau Decl. ¶ 3, ECF No. 95-2. ■ ’

The Court observes that this is the first time in’ this' litigation that Plaintiff has claimed that he shared Kim-Moe’s comment with Henton on any date. He did not identify this allegation in his verified, un-supplemented answers to interrogatories, which requested details of: (1) “each and every incident in which you learned information which has caused you to believe that the AFA breached its duty of fair representation towards you,” (2) “each statement (whether oral, written or otherwise) made by Defendant AFA’s representatives to Plaintiff, or to any other individual, regarding the allegations contained in the Complaint,” and (3) “each and every communication you had with any representative of the [AFA] concerning any grievance you had against [Hawaiian Airlines].” See Declaration of Stephanie Marn (“Marn Decl.”), ™ 6-10, ECF No. 108-1; Plf. Matthew J. Debeikes’ Response, to Def. AFA’s First Request for Answers to Interrogatories ¶¶ 4, 7, ECF No. 108-4; Plf. Matthew J. Debeikes’ Response to Def. Hawaiian Airlines’ First Request for Answers to Interrogatories ¶ 5, ECF No. 108-5,

Plaintiff belatedly requested leave, to pursue further discovery (specifically, deposition testimony and phone records) regarding his communications with Henton, but that request was denied for the reasons explained at length in the Court’s Order Affirming the Magistrate Judge’s Order Denying Plaintiff Matthew J- De-beikes’ Motion to Reopen Discovery, ECF No. 139.

In light of the -foregoing, it is impossible to conclude that AFA was made aware that Hawaiian Airlines allegedly “predetermined to terminate” Plaintiff, or that Plaintiff wished to have any related grievance filed, prior to Plaintiff’s retirement. This is significant because Debeikes was no longer a member of AFA by the time he left the meeting at - which Kim-Moe’s statement was made, and AFA may only file grievances on behalf of members. Order at 16 n.10, 59, ECF No. 75.'.

' Plaintiff is correct that, where a union member, provides evidence supporting’ a grievance, a union may breach its DFR where it ignores such grievance or processes it in a “perfunctory manner.”Vaca, 386 U.S. at 194, 87 S.Ct. 903. But in the instant case,'it does not appear that AFA was informed of any supposed “evidence” of Hawaiian Airlines’ “predetermination” to terminate Debeikes until after he retired, if at all. The Court cannot conclude that a union acts in “perfunctory” manner where a plaintiff, by retiring, forecloses the union’s practical opportunity to initiate any action.

The Court notes that although Plaintiff has argued that he was “unaware” that his representation by AFA ended , upon his retirement, this does not change the actual scope of AFA’s duties to him. As discussed in the Court’s prior Order, union members are “ fobligated to exhaust: union remedies before resorting to a court action ... [n]ecessarily implied in this obligation is the duty to become aware of the nature and availability of union remedies.’ ” Order at 38, ECF No. 75 (quoting Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1214 (9th Cir.1980) (further citation omitted)).

Second, Plaintiff has not demonstrated that the union’s failure to initiate a “predetermined termination”' grievance (even if AFA had such opportunity, which the Court finds it did not) was arbitrary, discriminatory, or in bad faith, sufficient to breach the DFR. The burden of such a showing is significant. To establish “bad faith,” Plaintiff must introduce “substantial evidence of. fraud, deceitful action, or dishonest conduct” on the part of AFA. No-sie, 722 F.Supp.2d at 1200. To be arbitrary, the union’s conduct, considered “in light of the factual and legal landscape” in which it occurred, must be “fairly characterized as so far outside of a range of reasonableness that it is wholly irrational.” Air Line Pilots Ass’n, Int’l v, O’Neill, 499 U.S. 65, 66, 111 S.Ct 1127, 113 L.Ed.2d 51 (1991). To show discrimination, Plaintiff must demonstrate “substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives.” Nosie, 722 F.Supp.2d at 1200.

Plaintiff has not demonstrated bad faith, arbitrariness, or discriminatory animus here. AFA representatives have submitted uncontroverted declaration testimony that, had Debeikes attended his disciplinary hearing and either been, deprived of a fair hearing or felt “dissatisfied with the discipline he was-issued,” AFA was “willing to file a grievance and take it- to arbitration.” Henton Decl. ¶ 32, ECF -No. 95-2; Akau Decl. ¶ 4, ECF No. 95-2. This is not, therefore,, a case in-which a union simply refused to file a complainant’s grievance at all. - ■

With respect to AFA’s grievance-handling strategy, there is no indication that Debeikes was treated differently from any other flight attendants. And even assuming that-AFA was aware of Hawaiian Airlines’ “predetermination to terminate” Plaintiff and his desire to file a grievance theréon, Debeikes has not shown that a union decision to grieve that predetermination after (rather than before) his- disciplinary hearing was arbitrary or in bad faith. The Court is obligated to extend the union’s decisionmaking “substantial deference,” recognizing that the union “must balance many collective and individual interests when it decides whether and to what extent to pursue a particular grievance.” Dutrisac, 749 F.2d at 1273.

The Court observes that there is also a difference between the union, on the one hand, knowing that Hawaiian Airlines “predetermined to terminate” Plaintiff in a violation of due process and, on the other, simply being aware that termination was likely. Trumble had evidently provided the same opinion to Debeikes prior to his retirements Order at 16, ECF No, 75. Nothing about this advice appears to have been arbitrary, discriminatory, or reflective of bad faith. Debeikes had already admitted to allegations of sexual harassment at his April 5, 2013 investigatory interview, and Hawaiian Airlines formally concluded that Plaintiff had violated the company’s Policy and House Rules regarding sexual harassment and unprofessional conduct. Those policies provide that discipline for their violation may include discharge. Id. at 11, 15, ECF No. 75.

In light of the foregoing, the Court is unable to conclude that AFA had the “sole” power to invoke the CBA’s grievance procedures or that it “wrongfully” refused to do so related to Debeikes’ “predetermined termination.” Carr, 904 F.2d at 1319. Because Plaintiff retired before exhausting contractual remedies and has raised no genuine issue of material fact as to the applicability of an exception to the requirement that he do so, the Court is without jurisdiction to adjudicate his breach of CBA claim. The Court therefore GRANTS summary judgment in favor of Defendants with respect to whether Defendant Hawaiian Airlines breached the CBA.

b. Any Separate “Constructive Discharge” Claim Suggested in Plaintiff’s Amended Complaint Is Preempted and Unmeritorious

It is somewhat unclear whether Plaintiff intends in the Amended Complaint to invoke any independent cause of action involving “constructive discharge” separate from his breach of CBA claim. The Amended Complaint itself indicates that this is not the case. Rather, Plaintiff claims he was injured “[a]s a result of Plaintiffs [constructive] discharge by Defendant employer, in violation of plaintiff