Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2005

Podobnik v. US Postal Ser
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3059




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 04-3059


                               PHILIP J. PODOBNIK,

                                                            Appellant

                                          v.

 UNITED STATES POSTAL SERVICE; NATIONAL RURAL LETTER CARRIERS
   ASSOCIATION; JOHN E. POTTER, Postmaster General of the United States,

                                                            Appellees


                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                              (D.C. No. 01-cv-00192)
                  District Judge: Honorable Donetta W. Ambrose


                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   May 3, 2005

          Before: McKEE, VAN ANTWERPEN, and WEIS, Circuit Judges

                                 (Filed May 5, 2005)


                               OPINION OF THE COURT




VAN ANTWERPEN, Circuit Judge.

     Before us is an appeal from the United States District Court for the Western
District of Pennsylvania granting summary judgment in favor of Appellees United States

Postal Service (“USPS”) and National Rural Letter Carrier Association (“NRLCA”).

Before the District Court, Philip J. Podobnik (“Appellant”) alleged that USPS violated

both the Age Discrimination in Employment Act, 29 U.S.C. § 621, et. seq., and the

collective bargaining agreement that existed between USPS and NRLCA.1 He further

alleged that NRLCA breached its duty to fairly represent him. Because we conclude that

each of Appellant’s claims are untimely, we affirm the Report and Recommendation

adopted by the District Court.




                                         I. Facts

       Appellant was born on August 17, 1929, and he was employed as a rural letter

carrier with USPS’s Monroeville, Pennsylvania division from March 25, 1969, until his

retirement on March 31, 1998. For the entire length of his employment with USPS,




   1
     Such an allegation alleges a breach of 39 U.S.C. § 1208(b), which is the parallel
provision to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a),
addressing specifically claims “for violations of contract between the Postal Service and a
labor organization representing Postal Service employees.” 29 U.S.C. § 1208(b) (2005).
The language of section 1208(b) is nearly identical to that of Labor Management
Relations Act section 301; hence, other circuits have used cases interpreting section 301
to interpret section 1208(b). See, e.g., Miller v. U.S. Postal Service, 

, 10 n.1
(1st Cir. 1993); Columbia Local, American Postal Workers Union, AFL-CIO, v. Bolger,

, 617 (4th Cir. 1980); Nat. Ass’n of Letter Carriers, AFL-CIO v. U. S. Postal
Service, 

, 1176 (D.C. Cir. 1978); Nat. Ass’n of Letter Carriers, AFL-CIO
v. Sombrotto, 

, 918 (2d Cir. 1971).

                                            2
Appellant’s union representative was NRLCA.2 As he was a rural carrier, Appellant was

not paid for a “traditional” eight hour work day, as would a city letter carrier. Rather, his

compensation was based on the number of pieces of mail he delivered, the mailboxes he

served, and the mileage he traveled. Appellant was required to work as long as necessary

to complete his daily rounds, which he contends required between 54 and 56 hours per

week.

        Sometime in 1993, the Monroeville Post Office attempted to adjust Appellant’s

route downward by transferring approximately 40% of his route to a younger city mail

carrier. Because this was a substantial adjustment downward, Appellant’s compensation

would have been dramatically reduced. He contacted his NRLCA union steward, Helen

Malarik, but did not file a grievance at any time. Through Malarik’s efforts, Appellant

was able to request that the smallest leg of his route be transferred to another rural letter

carrier also represented by NRLCA. Ultimately, all parties agreed to the downward

adjustment of Appellant’s route, which he found to be a “great relief.”

        On April 22, 1997, Appellant’s immediate supervisor followed him on his route

and observed him commit three vehicle safety violations: (1) driving in excess of the 45

miles per hour speed limit; (2) changing lanes without using turn signals; and (3)

   2
     A collective bargaining agreement between USPS and NRLCA existed both in 1993
and in 1998 (the years where Appellant alleges age discrimination occurred). Joint
Appendix at 953-1078 and 258-354. Appellant acknowledged at deposition that he had at
least one copy of a collective bargaining agreement between USPS and NRLCA, and that
he “probably” had looked at it before. However, it is unclear which agreement he was
referring to.

                                               3
dismounting from his vehicle without shutting off the engine. For these infractions,

Appellant was put on 14-day suspension and a 60-day suspension of his driving

privileges. The next day, Appellant filed a USPS-NRLCA “Joint Step 1 Grievance Form”

disputing these charges. NRLCA intervened on Appellant’s behalf, and a “Step 2

Grievance Settlement” was reached which reduced his term of suspension to time already

served.3

         On March 2, 1998, Appellant was again followed and again charged with three

safety violations: (1) unnecessary backing up of his vehicle; (2) leaving his vehicle’s

engine running while it was parked and while he was inside various addresses delivering

mail; and (3) leaving his vehicle unlocked and unsecured with mail in it. On March 5,

1998, Appellant went to the Pittsburgh branch of the Equal Employment Opportunity

Commission (“EEOC”) to file an age discrimination claim. While filling out an EEOC

Intake Form, an EEOC representative told him that he would have to pursue any



   3
       Article 15 of the collective bargaining agreement requires:

         a. Any employee who feels aggrieved must discuss the grievance with the
         employee’s immediate supervisor within fourteen (14) days of the date on
         which the employee or the Union has learned or may reasonably have been
         expected to have learned of its cause.

         *      *      *

         c. If no resolution is reached during such discussion, the supervisor shall
         promptly annotate a joint Step 1 grievance form, indicating briefly the issue
         and the date of the initial discussion, which constitutes the Step 1 filing
         date.

                                               4
discrimination claim through USPS’s Equal Employment Opportunities office. Appellant

did not ask for clarification, but claims to have thought that he had to file his complaint

directly with his USPS supervisors (which he deemed futile) instead of a USPS

employment counselor. In any event, he did not complete his EEOC Intake Form, and did

not pursue his claim further with USPS.

       On March 10, 1998, Appellant and Malarik had a meeting with his USPS

supervisors.4 At that meeting, the supervisors indicated their intent to terminate

Appellant, and he was given a letter entitled “Notice of Proposed Removal,” proposing to

discharge him within 30 days for the vehicle safety violations that had been observed in

1997 and 1998. This notice stated that Appellant had the option, under the collective

bargaining agreement, to file a grievance within 14 days. Also during the meeting, USPS

offered Appellant the opportunity to retire in lieu of termination, thereby allowing him to

keep his pension. On March 31, 1998, Appellant officially retired. He never filed a

grievance, nor did he request that NRLCA do so.

       On October 11, 2000, Appellant met with his attorney in connection with a social

security matter. At that meeting, Appellant relayed the situation surrounding his 1993

route reduction and 1998 retirement. At that time he claims that, with the help of his

attorney, he became aware that he had viable claims against USPS and NRLCA. He also

   4
    Appellant characterizes this meeting as a “Step 1 Grievance Procedure,” while
Appellees characterize it as a “pre-disciplinary hearing.” Regardless of which term is
used, it is uncontested that no joint Step 1 Grievance Form was annotated at the
conclusion of this meeting, ending the grievance process.

                                              5
concedes that, between his retirement and his October 11, 2000, meeting with his

attorney, he undertook no independent investigation of his case and did not learn any new

facts. On October 12, 2000, Appellant filed a document with the EEOC entitled “Intent

to Sue Pursuant to 29 U.S.C. § 633a(d).”

       On January 25, 2001, Appellant filed a Complaint against USPS and NRLCA,

alleging, inter alia, various state law claims against NRLCA. On March 26, 2001,

NRLCA sought to dismiss Appellant’s claims as preempted under federal law. On

October 31, 2001, United States Magistrate Judge Ila Jeanne Sensenich granted, without

prejudice, the NRLCA’s Motion to Dismiss certain counts of the complaint not involving

fraud or collusion. On November 16, 2001, Appellant filed a three-count Amended

Complaint against USPS and NRLCA. Count I alleged that USPS discriminated against

him on the basis of his age when it reduced his mail delivery route in 1993 and notified

him in March 1998 that it intended to terminate his employment. Count II alleged that

USPS breached its collective-bargaining agreement with the NRLCA when it sought to

terminate Appellant’s employment. Count III alleged that NRLCA breached its duty of

fair representation. The United States District Court for the Western District of

Pennsylvania referred the case to Magistrate Judge Sensenich for consideration of all

pretrial matters. Appellant, USPS and NRLCA all moved for summary judgment. By

Report and Recommendation, the Magistrate Judge denied Appellant’s motion for

summary judgment and granted USPS and NRLCA’s motion for summary judgment,



                                             6
finding that Appellant’s claims were time-barred. By Memorandum Order, the District

Court adopted the Magistrate’s Report and Recommendation. This timely appeal

followed.




                        II. Jurisdiction and Standard of Review

       The District Court had original jurisdiction over Appellant’s Age Discrimination in

Employment Act (“ADEA”) claim and “hybrid” section 301 claim 5 pursuant to 28 U.S.C.

§ 1331. Our jurisdiction is grounded in 28 U.S.C. § 1291, as the District Court’s grant of

Appellees’ motion for summary judgment was a final and appealable order.

       We review the District Court’s grant of summary judgment in favor of Appellees

de novo. Torres v. McLaughlin, 

, 170 (3d. Cir. 1998). When reviewing the

propriety of a grant of summary judgment, we apply the same test a district court should

have applied. Olson v. General Elec. Astrospace, 

, 951 (3d Cir. 1996). That

is, a grant of summary judgment is appropriate only where the parties have established

that there is no genuine dispute of material fact and are “entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 

, 322 (1986). Where

the defendant is the moving party, the initial burden is on the defendant to show that the



   5
    “A hybrid section 301 action is one in which a union member sues his or her
employer for breaching its contractual obligations under the collective bargaining
agreement and the union for breaching the duty of fair representation.” Beidleman v.
Stroh Brewery Co., 

, 236 (3d Cir. 1999) (citing DelCostello v. Int’l Bhd. of
Teamsters, 

, 164-165 (1983)) (internal quotations marks omitted).

                                             7
plaintiff has failed to establish one or more essential elements to his case. See Celotex

. On a motion for summary judgment, a district court must view

the facts in the light most favorable to the non-moving party and must make all

reasonable inferences in that party’s favor. See Marzano v. Computer Sci. Corp., 

, 501 (3d Cir.1996) (citing Armbruster v. Unisys Corp., 

, 777 (3d

Cir.1994)).




                                      III. Discussion

       Despite the lengthy record and briefs in this case, the questions before us are

relatively narrow. As to his ADEA claim against USPS, we must determine whether the

accrual date was delayed by the discovery rule, or alternatively whether the limitations

period was equitably tolled. As to his hybrid section 301 claim against USPS and

NRLCA, we must determine whether Appellant’s failure to file a grievance with regard to

his 1998 termination bars his recovery. We shall take each question in turn, remembering

that Title VII limitations provisions are part of a body of humanitarian legislation that

must be interpreted in a humane and commonsensical manner, so as to prevent

unnecessarily harsh results in particular cases. Oshiver v. Levin, Fishbein, Sedran &

Berman, 

, 1387 (3d Cir. 1994).

A. Appellant’s ADEA Claim

       Appellant first claims that his 1993 route reduction and his 1998 forced retirement



                                              8
constitute impermissible age discrimination. “All personnel actions affecting employees

or applicants for employment who are at least 40 years of age . . . in the United States

Postal Service and the Postal Rate Commission . . . shall be made free from any

discrimination based on age.” 29 U.S.C. § 633a(a) (2005). An employee covered by this

provision has

       two alternative routes for pursuing a claim of age discrimination. An
       individual may invoke the EEOC’s administrative process and then file a
       civil action in federal district court if he is not satisfied with his
       administrative remedies. See 29 U.S.C. § 633a(b) and (c). A federal
       employee complaining of age discrimination, however, does not have to
       seek relief from his employing agency or the EEOC at all. He can decide to
       present the merits of his claim to a federal court in the first instance. See
       [29 U.S.C.] § 633a(d).

Stevens v. Dep’t of Treasury, 

, 5-6 (1991). If an individual alleging age

discrimination has not filed a complaint with the EEOC, he may not file a civil action

under section 633a until he has given the EEOC at least thirty days’ notice of an intent to

file such action. 29 U.S.C. § 633a(d) (2005). This notice must be filed within 180 days

of the date when the alleged unlawful practice occurred. 

undisputed that Appellant submitted an Intent to Sue Letter to the EEOC on

October 12, 2000. Because he retired on March 31, 1998, his retirement date is the latest

possible date that USPS could have engaged in any discriminatory behavior toward him.

Thus, Appellant had until September 27, 1998, to file his Intent to Sue Letter, and his

letter of October 12, 2000, was therefore untimely. The District Court concluded as such,

and granted summary judgment in favor of USPS. On appeal, Appellant argues both that

                                             9
the discovery rule extended the date on which his injury accrued, and the doctrine of

equitable tolling halted the limitations clock, thus making his Intent to Sue Letter timely.

As did the District Court, we reject these two arguments.

       1. Discovery Rule

       “As a general rule, the statute of limitations begins to run when the plaintiff’s

cause of action accrues . . . the accrual date is not the date on which the wrong that injures

the plaintiff occurs, but the date on which the plaintiff discovers that he or she has been

injured.” 

(citing Cada v. Baxter Healthcare Corp., 

(7th Cir. 1990)) (emphasis in original). That is not to say that the accrual date is when a

plaintiff learns he has been the victim of a legal wrong. Rather, a claim accrues as soon

as a potential plaintiff either is aware, or should be aware after a sufficient degree of

diligence, of the existence and source of an actual injury. Keystone Insurance Co. v.

Houghton, 

, 1127 (3d Cir. 1988); see also 

. The

discovery rule delays the initial running of the statute of limitations, but only until the

plaintiff has discovered: (1) that he or she has been injured; and (2) that this injury has

been caused by another party’s conduct. New Castle County v. Halliburton NUS Corp.,

, 1124 (3d Cir. 1997). Thus, the question is when did Appellant suffer an

actual injury.

       While we understand Appellant to be citing both his 1993 route reduction and his

1998 retirement as instances of age discrimination, we shall dispense with both



                                              10
concurrently. Appellant had actual knowledge of his route reduction immediately, since

he participated in and agreed to the reduction. Furthermore, he had actual knowledge of

USPS’s intent to terminate him on March 10, 1998.6 Appellant contends that USPS’s

1993 route reduction and 1998 intent to terminate or retire him was on account of his age,

that this was not apparent to him until October 11, 2000 (the day he met with his

attorney), and therefore the limitations period did not begin to run until then.

Specifically, he contends that he “did not know he had a possible injury until then.” Brief

of Appellant at 38. We read this as meaning that Appellant did not know he had a

possible legal injury resulting from the 1993 or 1998 actions until after meeting with his

attorney. However, the discovery rule is concerned with knowledge of actual injury, not

legal injury.

       Appellant does not claim he was unaware that USPS reduced his route in 1993, or

that it served him with a Notice of Proposed Removal on March 10, 1998. These are the

only dates when any alleged injury occurred. Therefore, the latest date on which

Appellant’s claim could have possibly accrued was March 31, 1998, his last day of

employment.7 The discovery rule does not excuse his failure to file his Intent To Sue


   6
     While Appellant has not alleged that USPS engaged in a broad pattern and practice
of age discrimination with regard to forced retirement, we have previously held that an
early retirement program designed to force employees who reach a senior age to leave or
face significant pressure to resign or retire might itself create an inference of age
discrimination. Sempier v. Johnson & Higgins, 

, 732 (3d Cir. 1995).
   7
    We note that this is a generous date, since it is quite clear to us that Appellant was
aware of each employment decision as they happened.

                                             11
Letter more than two years after the 180-day limitations period had expired. Were we to

extend the reach of the discovery rule to delay accrual until a plaintiff learned that a legal

injury had occurred, as Appellant requests, a statute of limitations would become

effectively meaningless, as a plaintiff could, through ignorance or fraud, bring an age

discrimination claim at any point in his lifetime, regardless of how long ago the

underlying acts had occurred. We decline this invitation, and conclude that the discovery

rule does not save Appellant’s untimely ADEA claim.

       2. Equitable Tolling

       Because the time limitations set forth in Title VII are not jurisdictional, they may

be modified by equitable concerns, such as tolling. 

(citing Hart

v. J.T. Baker Chemical Co., 

, 831 (3d Cir. 1979)). The doctrine of equitable

tolling stops a statute of limitations period from running after a claim has accrued, 

be applied “sparingly.” Nat’l R.R. Passenger Corp. v. Morgan, 

, 113

(2002); see also Irwin v. Dep’t of Veterans Affairs, 

, 96 (1990) (“We have

generally been much less forgiving in receiving late filings where the claimant failed to

exercise due diligence in preserving his legal rights.”). Appellant bears the burden of

proving that the equitable tolling doctrine applies here. Courtney v. La Salle Univ., 

, 505 (3d Cir. 1997). There are three principal situations in which equitable

tolling is appropriate: (1) where the defendant has actively misled the plaintiff respecting

the plaintiff’s cause of action, and that deception causes non-compliance with an



                                              12
applicable limitations provision; (2) where the plaintiff in some extraordinary way has

been prevented from asserting his rights; or (3) where the plaintiff has timely asserted his

or her rights mistakenly in the wrong forum. 

(citing Sch. Dist.

of City of Allentown v. Marshall, 

, 19-20 (3d Cir. 1981)). Appellant makes

four arguments in support of his contention that equitable tolling is appropriate here. He

claims that (1) he was fooled into believing that his route was reduced because he was

overworked, and that the safety violations he had committed were the basis for his forced

retirement; (2) he was misled by the advice of an employee of the EEOC Pittsburgh

office; (3) he timely filed a claim with the EEOC in Pittsburgh; and (4) his local USPS

office failed to post an EEOC notice as required by law. Our review leads us to agree

with the District Court that there is no basis to equitably toll the limitations period of

Appellant’s ADEA claim, which we have already concluded accrued no later than March

31, 1998.

       Moving to his first argument, we conclude, even assuming Appellant’s 1993 route

reduction and his 1998 retirement were pretext for age discrimination, his noncompliance

with the 180-day statute of limitations period was not the result of being misled by USPS.

We find principal support for our conclusion in Appellant’s own words. With regard to

his 1993 route reduction, Appellant stated at deposition that he first suspected that this

action was caused by age discrimination while he “was in the service.” Joint Appendix at

378. Reading this statement as generously as possible (since Appellant was unable at



                                              13
deposition to narrow the time frame to any degree), this means Appellant suspected his

age played an unlawful part in his route reduction between 1993, and March 31, 1998.

Giving Appellant every benefit of the doubt, this means that Appellant was not deceived

into believing his route reduction was the result of being overlooked as late as March 31,

1998. Since Appellant took no action with regard to the 1993 reduction within 180 days

of his retirement, tolling cannot excuse his untimely complaint. Appellant’s tolling

argument with regard to his forced retirement fares little better. When asked why he

went to the Pittsburgh EEOC office on March 5, 1998, he replied:

       The reason I went there was I felt that I was discriminated upon because of
       my age and that this EEOC was an organization set up by our government to
       mitigate or make easier or harder for employers to get rid of you because of
       age, and if I could prove that that was the case, I could go back to work.

Appellant cannot realistically argue that he was misled to believe that the

safety infractions he committed were the basis for his forced retirement when it is

undisputed that he went to the EEOC office three days later to complain that these

infractions were pretext for age discrimination. Regardless of whether or not the safety

infractions were in fact pretext, Appellant clearly was not deceived.8

        Turning to his second argument, Appellant claims that the EEOC misled him by

telling him to file his discrimination complaint with “the Post Office.” Appellant claims

he began filling out an EEOC complaint, but was stopped and instructed to file with



   8
    We need not make any judgment as to whether or not the route reduction or the
forced retirement were accomplished by actual fraud on the part of USPS.

                                             14
USPS instead. Even if we were to ignore the fact that Appellant’s Complaint seems to

indicate he was given correct advice, see Joint Appendix at 21 (stating that the EEOC

“told Plaintiff that he had to pursue his claim through Defendant USPS’ agency EEO”)

(emphasis added), any errant advice Appellant may have received from an EEOC

employee did not rise to the level of an “extraordinary” circumstance justifying tolling of

the limitations period. We have previously noted that “running throughout the equitable

estoppel cases is the obligation of the plaintiff to exercise due diligence to preserve his or

her claim.” Robinson v. Dalton, 

, 1023 (3d Cir. 1997) (holding that “one

phone conversation with an EEO counselor [where erroneous advice was given] does not

rise to the level of being prevented in an ‘extraordinary way’ by the EEOC from asserting

[one’s] rights”). There is nothing in the record to indicate that, following this interaction

with the Pittsburgh EEOC office, he further pressed his claim in any forum until October

2000. Appellant was under a continuing duty to diligently pursue any claim of age

discrimination. Had he done so, a more thorough review of the substance of his

interaction with the EEO employee would be required. However, since Appellant took no

further action, he cannot benefit from tolling on this point.

       Appellant’s third argument, that he in fact did timely file a claim with the EEOC

on March 5, 1998, seems to belie his first two arguments, as filing an EEOC claim would

demonstrate that he believed that he had been the victim of age discrimination, and that

he had not been misled by an EEO employee into failing to properly file his claim.



                                              15
Ignoring this discrepancy, this allegation does not bring Appellant within the “filing in the

wrong forum” portion of the equitable tolling doctrine. Since it is undisputed that

Appellant did not complete an EEOC Intake Questionnaire, it is clear to us that the EEOC

received no complaint from Appellant at any point in March, 1998. Therefore, Appellant

cannot claim he filed a discrimination complaint in the wrong forum.

       Finally, Appellant’s fourth argument is that USPS’ failure to post an EEOC notice

detailing his rights tolls the limitations period.9 While it is true that all employers must

conspicuously post a notice to be prepared or approved by the EEOC setting forth

information regarding the ADEA, 29 U.S.C. § 627, it is also true that failure to post the

required notice will toll the running of the 180-day period until the aggrieved person

seeks out an attorney or acquires actual knowledge of his rights under the ADEA.

Bonham v. Dresser Industries, Inc., 

, 193 (3d Cir. 1977). Here, Appellant’s

decision to go to the EEOC office on March 5, 1998, makes clear that he was aware that

he could file an age discrimination claim. The absence of an EEOC notice did not

prejudice him, and as such is no basis to toll the limitations period.

       Because it is undisputed that Appellant took no action on his ADEA claim

between March 31, 1998, and October 12, 2000, and because we conclude he cannot

benefit from either the discovery rule or equitable tolling, the District Court properly



   9
     We note there is a dispute of fact as to whether or not the EEOC notice was in fact
posted by USPS in the Monroeville office. However, this is immaterial as either version
of the facts leads us to the same legal conclusion.

                                              16
found that his ADEA claim was time-barred.

B. Appellant’s Hybrid Section 301 Claim

        Appellant also claims that USPS violated the collective bargaining agreement

between it and NRLCA, and that NRLCA violated a duty of fair representation owed to

him. “Such a hybrid action really alleges that the process of collective bargaining has

broken down.” United Steelworkers v. Crown Cork & Seal Co., 

, 58 (3d Cir.

1994). This type of claim is subject to a six-month statute of limitations period.

. With regard to a section 301 claim, the limitations period

commences “when the claimant discovers, or in the exercise of reasonable diligence

should have discovered, the acts constituting the alleged violation.” Vadino v. A. Valey

Engineers, 

, 260 (3d Cir. 1990). The limitations period for a fair

representation claim begins to run when the plaintiff knows or reasonably should have

known of the acts contributing to the union’s wrongdoing in failing to adequately

represent the member’s interests. Miklavic v. USAir, Inc., 

, 556 (3d

Cir.1994). Because it is undisputed that Appellant did not file his hybrid claim within six

months of his retirement,10 Appellant has no choice but to argue that the limitations

period should be tolled.

        NRLCA urges us to adopt an approach where the statute of limitations period may

be tolled if (1) the plaintiff is fraudulently induced to delay filing his suit, see Simmons v.

   10
      Again, we give Appellant the benefit of the fiction that he first gained knowledge of
this alleged injury on the last date of his employment.

                                              17
Howard Univ., 

, 917 (D.C. Cir. 1998), or (2) in good faith, the plaintiff

attempts to exhaust the applicable grievance procedures, see Lucas v. Mountain States

Tel. & Tel., 

, 421-22 (10th Cir. 1990). We need not reach the question of

tolling the statute of limitations period, however. In hybrid section 301 claims, a plaintiff

“must prove that the employer breached the collective bargaining agreement in order to

prevail on the breach of duty of fair representation claim against the union and vice

versa.” Felice v. Sever, 

, 1226 (3d Cir. 1993). The Supreme Court

instructs that, where a collective bargaining agreement establishes a grievance procedure,

an employee must at least attempt to exhaust such a process. Vaca v. Sipes, 

, 185 (1967). An employer cannot be held liable for breach of a collective bargaining

agreement unless it can be shown that the employee unsuccessfully sought relief through

the union grievance procedure. 

undisputed that Article 15 of the collective

bargaining agreement between USPS and NRLCA establishes a grievance procedure.

Therefore, the question before us is whether or not Appellant diligently attempted to

utilize the established grievance process.

       As the District Court noted, Appellant admitted that he did not file a grievance

concerning his March 10, 1998, Notice of Intent to Terminate. Joint Appendix at 570. At

most, Appellant claims to have initiated the “Step 1 Grievance Procedure” by contacting

his union steward and requesting that she accompany him to discuss his grievance with

his immediate supervisor. Nowhere does he argue that he declared any intent to grieve or



                                             18
that he signed a Joint Step 1 Grievance Form.11 By the terms of the agreement, a

grievance commences when an employee meets with his supervisor and declares that he

has a grievance. From the record, it is apparent that Appellant and his union steward met

with his supervisors on March 10, 1998, where he was given the choice of retiring so he

would not lose his pension, or being terminated for his several safety violations. He

chose the latter option, and chose not to pursue the grievance process further. As such,

Appellant must argue that exhaustion of the grievance process was somehow excused.

         Appellant notes that the Supreme Court has advanced at least three exceptions to

the requirement of total exhaustion of grievance remedies under a collective bargaining

agreement: (1) where the employer’s conduct repudiates contractual remedies; (2) where

use of grievance procedures would be futile; and (3) where the union breaches its duty by

wrongfully refusing to process a grievance. Clayton v. Int’l Union, U.A.W., 

, 689 (1981); see also 

. Appellant attempts to seek refuge in

these exceptions. However, other than accusations substantiated with nothing more than

conclusory allegations of fraud and collusion, he presents no evidence to establish that

any one of these exceptions is applicable. To survive summary judgment, a party must

present more than just “bare assertions, conclusory allegations or suspicions” to show the

existence of a genuine issue. Celotex 

. Appellant does not explain

why his failure to press his grievance further (by having the Step 1 Grievance Form



   11
        Indeed, Appellant concedes in his brief that the grievance was ended at the meeting.

                                              19
annotated) was caused by malfeasance on the part of USPS, nor does he supply evidence

demonstrating that use of the grievance procedure would have been futile or that NRLCA

acted against his interests. Therefore, we cannot excuse his failure to exhaust the

grievance process before bringing his hybrid section 301 claim.

       As it is undisputed that Appellant did not attempt to first resolve the dispute via the

grievance process, he cannot sue USPS for any alleged breach of the collective bargaining

agreement, and consequently cannot sue NRLCA for any alleged breach of the duty of

fair representation. See 

. Therefore, the District Court properly

dismissed his hybrid section 301 claim in its entirety.

       For these reasons, we affirm the decision of the District Court.




                                             20