Porn Whistle-Blower Loses Retaliation Suit

(CN) - A woman who lost her job after allegedly catching her union bosses looking at pornographic images at work cannot sue for retaliation, the 4th Circuit ruled.

As an employee of the defense contractor General Dynamics Armament and Technology Products, Melissa Trail belonged to Local 2850 of the United Auto Workers. Between 2004 and 2010, Trail served the union as its third highest ranking officer, recording secretary.

Her alleged encounter with the porn-watching union brothers occurred while she was on suspension from General Dynamics in 2009. That year, Virginia authorities had suspected Trail as the culprit behind a security breach that involved the publication of names, salaries and Social Security numbers of all of salaried employees at her factory. Though the prosecutor dropped the identity theft charges filed against Trail, General Dynamics was reluctant to let her return to work because they deemed her not fully "exonerated."

While still suspended on Aug. 13, 2009, Trail allegedly entered the union office and saw the union president and vice president watching porn on a union computer.

Trail said she reported the incident, but that the union's regional representatives declined to investigate.

In the wake of this incident, Trail said the individuals she had reported began to retaliate against her. She said the vice president criticized her at a union executive board meeting, claimed that Trial's husband had threatened him, and said most union workers did not want her to return to work. The president meanwhile allegedly chastised Trail for reporting the porn incident.

General Dynamics then fired Trail on Sept. 15, and she claimed that the union bosses tried to obstruct her union grievance process.

Trail sued the local, Region 8 and the UAW in 2011, claiming that her union bosses had violated the Labor-Management Reporting and Disclosure Act by retaliating against her.

A federal judge in Abingdon, Va., dismissed the complaint for failure to state a claim, and the 4th Circuit affirmed on more narrow grounds last week.

Writing for a three-judge panel, Judge J. Harvie Wilkinson III said that court need not "address what qualifies as actionable retaliation, because Trail's complaint falters over the threshold question."

After considering whether Trail's porn alert constituted free speech, the panel ultimately found that "Trail did not speak on a matter of union concern when she reported the alleged pornography incident." (10,3)

"To be sure, it would have been preferable for the union officers to have been pouring over the union's books and finances at the precise moment Trail alleges that she happened upon them," Wilkinson wrote. "But, alas, human imperfection must be kept in some perspective. This allegation in Trail's report to Region 8 reduces to a single instance of engaging in personal activities at work, an indiscretion that is anything by rare in the contemporary workplace, where employees regularly gossip around the water cooler, browse the latest news on the internet, and make personal phone calls. Were this enough to constitute a matter of union concern and thus to render her speech protected under section 101(a)(2), nearly every criticism by a union member regarding an official's conduct could be transmuted into a federal case - a result Congress could not possibly have intended in enacting the LMRDA."

The panel concluded that all of Trail's arguments failed.

"In short, Trail has issues with individual union officers," Wilkinson wrote. "But she points to not a single action by the union as a whole, let alone a union action that was 'the result of an established union disciplinary process.'"

Courthouse News records show that Trail also sued General Dynamics for wrongful termination and defamation in 2010.

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