06-3921-cv
Cover v. American Postal Workers Union

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED A ND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETH ER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY CO UNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17 th day of December, two thousand nine.

PRESENT:
                 RALPH K. WINTER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                 Circuit Judges.
--------------------------------------------------------------
WAYNE COVER,
                                 Plaintiff-Appellant,
                 v.                                                    No. 06-3921-cv

AMERICAN POSTAL WORKERS UNION-
AFL-CIO,
                  Defendant-Appellee,

JOHN E. POTTER, Postmaster General,
                                 Defendant.
--------------------------------------------------------------
APPEARING FOR APPELLANT:                          LEE NUWESRA, Bronx, New York.

APPEARING FOR APPELLEE:                           BRENDA C. ZWACK, O’Donnell, Schwartz &
                                                  Anderson, P.C., Washington, D.C.
       Appeal from the United States District Court for the Southern District of New York

(Lisa Margaret Smith, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 21, 2006, is AFFIRMED.

       Wayne Cover appeals a grant of summary judgment in favor of the American Postal

Workers Union (the “Union”) on his hybrid claim under the Postal Reorganization Act

(“PRA”), see 39 U.S.C. § 1208(b), that (1) the United States Postal Service (the “USPS”),

his former employer, disciplined him in violation of a collective bargaining agreement

(“CBA”), and (2) the Union breached its duty of fair representation. Summary judgment is

proper only if “there is no genuine issue as to any material fact and . . . the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review an award of summary

judgment de novo, “examining the facts in the light most favorable to the non-moving party

and resolving all factual ambiguities in that party’s favor.” Pyke v. Cuomo, 

, 76

(2d Cir. 2009). In applying this standard, we assume familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

       1.      Mootness

       The Union claims that this appeal is moot because Cover has already obtained all of

the relief available to him in a separate action for retaliation against the USPS. See Cover

v. Potter, No. 05 CIV 7039, 

(S.D.N.Y. Aug. 29, 2008) (denying the

USPS’s post-trial motions for new trial and judgment as matter of law). To prove mootness,

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the Union must show that “it [is] impossible for the court to grant any form of effectual

relief.” In re Flanagan, 

, 178 (2d Cir. 2007). This it cannot do.

       To be sure, Cover cannot recover twice for the same injury. But where he proved

$100,000 in compensatory damages for emotional injuries, and settled with the USPS for a

smaller sum, he may at least sue the Union for the balance. See Vaca v. Sipes, 

,

197 (1967) (“The governing principle [in hybrid cases] . . . is to apportion liability between

the employer and the union according to the damage caused by the fault of each.”); cf.

McDermott, Inc. v. AmClyde, 

, 208 (1994) (“It is generally agreed that when

a plaintiff settles with one of several joint tortfeasors, the nonsettling defendants are entitled

to a credit for that settlement.”). Thus, without deciding what, if any, further damages might

be at issue, we decline to dismiss this appeal as moot.

       2.      Duty of Fair Representation

       We nevertheless affirm the district court’s award of summary judgment. We do so

based not on the district court’s conclusion that Cover failed to create an issue of material

fact as to whether the USPS breached the CBA by issuing him a letter of warning (“LOW”)

on November 11, 2002, but rather on our own conclusion, upon de novo review, that Cover

failed to raise a triable issue of fact with respect to his claim that the Union breached its duty

of fair representation in settling his related grievance. See Motorola Credit Corp. v. Uzan,

, 127 n.3 (2d Cir. 2009) (noting that court of appeals “may affirm the judgment

of the district court on any ground appearing in the record” (internal quotation marks



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omitted)).

       To prevail on this hybrid claim, Cover is required to show both that the USPS

breached the CBA and that the Union breached its duty of fair representation. See White v.

White Rose Food, 

, 178 (2d Cir. 2001) (noting that employee asserting hybrid

claim under Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, must prevail

against both employer and union); Bowen v. U.S. Postal Serv., 

, 232 & n.2

(1983) (explaining that hybrid actions under PRA are governed by same legal standards

governing actions under LMRA) (White, J., concurring in part and dissenting in part). A

union breaches the duty of fair representation only when its conduct is “arbitrary,

discriminatory, or in bad faith.” Air Line Pilots Ass’n, Int’l v. O’Neill, 

, 67

(1991) (internal quotation marks omitted). A union’s actions are “arbitrary” only if they are

“so far outside a wide range of reasonableness as to be irrational.” 

marks and citation omitted).

       Cover contends that Union representative Louise Yannuzzi acted irrationally by

accepting a settlement on his behalf under which expungement of the LOW was conditioned

on his not incurring further discipline. Yannuzzi has acknowledged that she would not have

done so, had she known that Cover had incurred further discipline already. Before accepting

the settlement, however, Yannuzzi checked the USPS’s electronic grievance database,

following the same procedure she had used for fifteen years without mishap. We cannot

agree with the district court that a reasonable trier of fact could describe this approach as



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irrational. Rather, the evidence demonstrates at most that Yannuzzi was negligent. Such a

showing is insufficient to meet the demanding standard described above. See Barr v. United

Parcel Serv., Inc., 

, 43 (2d Cir. 1989) (“Tactical errors are insufficient to show

a breach of the duty of fair representation; even negligence on the union’s part does not give

rise to a breach.”).

       As for Cover’s contention that the Union breached its duty of fair representation by

misrepresenting to him that the LOW had been expunged, although we have concluded that

a union breached its duty where its president “willfully conceal[ed]” an agreement with the

employer from union members, Lewis v. Tuscan Dairy Farms, Inc., 

, 1142 (2d

Cir. 1994), Cover has adduced no evidence that any Union representative intentionally misled

him, much less that any such conduct “seriously undermine[d] the arbitral process,” Barr v.

United Parcel Serv., 

. Thus, we affirm the district court’s grant of

summary judgment in favor of the Union on Cover’s breach of fair representation claim.

       We have considered Cover’s other arguments on appeal, and we conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court


                                    By:_______________________




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