MICHAEL B. NORTH, Magistrate Judge.
This is an action under the Postal Reorganization Act ("PRA"), 39 U.S.C. §1208(b), the statutory analogue to Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), which applies to private litigants only. Plaintiff in this case, Paul C. Jensen ("Jensen"), a former letter carrier, brings claims against: (1) Patrick Donahoe, Postmaster General, United States Postal Service ("USPS") for breach of the collective bargaining agreement ("CBA" or "National Agreement") between the USPS and co-Defendant, the National Association of Letter Carriers, AFL-CIO ("NALC" or "Union"); and (2) the NALC for breach of its duty of fair representation. (Rec. doc. 44-1). This type of action is known as a "hybrid Section 301" action." (Id. at pp. 12-14).
Before the Court are the following motions:
All told, the parties have expended almost 1,000 pages in arguing and supporting their positions for and against summary disposition of this case. In addition to reviewing those many pages of pleadings and exhibits, the Court heard oral argument on the motions on April 8, 2015. (Rec. doc. 66). Based upon all of the foregoing, and for the following reasons, the Court finds that Jensen's lawsuit against both USPS and NALC is time-barred and should therefore be dismissed. Accordingly, USPS' motion for summary judgment is hereby GRANTED. Because the effect of this decision is that Jensen is foreclosed from pursuing any claims against either Defendant, both his motion for summary judgment and NALC's motion for summary judgment are DISMISSED as moot.
The background facts as recited herein are taken primarily from Jensen's own motion for summary judgment. For present purposes, the Court accepts them as true.
Jensen was hired as a part-time letter carrier on September 12, 1987 by USPS. (Rec. doc. 44-1 at p. 3). He was based out of the Elmwood Station and his designation was Part-Time Flexible ("PTF"). (Id.). After two years, Jensen became a full-time City Carrier. (Id.). He worked as a full-time City Carrier from 7:30 am to 4:00 p.m., five days a week for the next 10 years. (Id.). On April 5, 1999, Jensen injured his knee on the job and, as a result, had a compensable claim with the U.S. Department of Labor's Office of Workers' Compensation ("OWCP"). (Id.). After recovering from knee surgery, Jensen returned to work in a limited-duty status on November 18, 2000. (Id.). He resumed his prior schedule but was designated as a Modified Carrier, rather than a City Carrier. (Id.).
On January 13, 2001, Jensen's manager presented him with a Limited Duty Job Offer ("LDJO") for work at his regular Elmwood Branch location with his regular weekly schedule and regular work hours. (Id.). The listed duties included "writing 2nd notices, returning UAA mail, answering the phone, endorsing carrier mark-ups, and distributing mail in the box section." (Id.). Jensen "gladly accepted the offer." (Id.). He claims to have adjusted to his new daily tasks, reaching maximum medical improvement shortly thereafter. (Id.).
On February 1, 2001, Jensen's physician, Dr. Julio Bravo, informed the USPS that Jensen had reached maximum medical improvement and submitted Jensen's Form CA-17 (which described Jensen's medical restrictions at that time) to the USPS. (Id.). Jensen continued to work in accordance with this LDJO for the next 11 months, until November 26, 2001, when Manager Alvin Every ("Every") and Supervisor Earl Pelitere, Jr. ("Pelitere") presented him with a new LDJO that was identical in all respects to the former one, but with different work hours. (Id.). This LDJO listed daily work hours of 9:30 a.m. to 6:00 p.m., as opposed to Jensen's usual 7:30 a.m. to 4:00 p.m. schedule. (Id.). Every apparently explained to Jensen that he was being assigned to different work hours because of new medical restrictions that the USPS had recently received from Jensen's physician. (Id.). When Jensen later learned from Dr. Bravo that he had not adjusted Jensen's medical restrictions as suggested by Every, he submitted a FOIA request for a copy of the alleged new medical restrictions. (Id. at p. 4).
Jensen claims that the USPS' response to the FOIA request acknowledged that it did not have a copy of the "new medical restrictions" that supposedly had necessitated the schedule change. (Id.). Jensen believed that the changes in his work hours violated the obligations outlined under Section 546.142 of the Employee and Labor Relations Manual ("ELM"). (Id.). Accordingly, he completed a "PS Form 2564-a" claiming discrimination and sent it to the EEO Office in New Orleans. (Id. at p. 5). The EEO ultimately facilitated a settlement agreement between Jensen and management, in which the USPS acknowledged the fact that the 9:30 a.m. to 6:00 p.m. job offer did not comply with the ELM. (Id.). The agreement stated that the parties mutually agreed that the 7:30 a.m. to 4:00 p.m. work schedule of the new LDJO would be changed "in accordance with Chapter 5 of the Employee and Labor Relations Manual" (Id.). For the next six years, Jensen worked as a full-time Modified City Carrier at the Elmwood Station with those work hours. (Id.).
Fast forward to the spring of 2010, when Jensen claims the USPS suddenly began to withhold his duties from him. (Id. at p. 6). Beginning in April 2010, Jensen claims he was instructed to sit in the break room all day and do no work. (Id.). On the day he was given this instruction, Jensen accepted it "under protest" and signed out on Leave Without Pay ("LWOP"), citing headaches and stress. (Id.). For two months, Jensen reported for work every day according to his regular schedule but sat idly in the break room. (Id.). He filed a grievance claiming that management had violated the National Agreement when they instructed him to sit in the break room without working. (Id.). On August 24, 2010, Manager Brent Royal ("Royal") released Jensen from duty under "the National Reassessment Program's (NRP) Phase 2 designation `no work available'" (Id.).
On March 7, 2011, a hearing was held before Arbitrator Louise Wolitz ("Wolitz") on Jensen's grievance. The issue presented to Wolitz was: "Did management violate the National Agreement when the grievant Paul Jensen sat in the break room while in pay status under code 604? If so, what is the remedy?" (Id.). The NALC, on Jensen's behalf, argued that the USPS had violated the ELM by assigning Jensen to sit idle in the break room and that this assignment was made to purposefully set Jensen up for being removed from his position because there was no work available for him. (Id.). Wolitz issued an arbitration award sustaining Jensen's grievance and ordering that he be immediately restored to full limited duty at his station and be "promptly made whole." (Id.).
Despite this award ordering the USPS to immediately restore Jensen to full limited duty, he claims that the USPS did not invite him back to work until May 4, 2011. (Id. at p. 9). Jensen claims that when he returned to work, Manager Chastity Bart told him there was no work available for him and sent him home. (Id.). Jensen filed another grievance against the USPS, this time for its failure to comply with the March 7, 2001 arbitration award. (Id.).
On June 2011, a grievance hearing was held before Arbitrator Patrick Halter ("Halter"), the issue being: "Did management violate the National Agreement when the grievant was sent home `no work available?'" (Id.). On July 19, 2011, Halter sustained Jensen's grievance and issued an arbitration award ordering that Jensen be made whole, in accordance with the remedy rendered by Arbitrator Wolitz. (Id.).
On December 28, 2011, Arbitrator Wolitz sustained yet another of Jensen's grievances for management's failure to comply with her March 7, 2011 arbitration award, mandating that Jensen be restored to his eight-hour limited-duty assignment at his station and receive all due back pay and benefits by March 1, 2012. (Id. at p. 9).
On March 3, 2012, two days after Arbitrator Wolitz' deadline, supervisor Juana Richardson presented Jensen with an LDJO with work hours of 9:30 a.m. to 6:00 p.m. and duties that included "PM cage duties" that were outside Jensen's standing restriction. (Id.). On March 27, 2012, Jensen was presented with another LDJO that did not meet the criteria set forth in the ELM § 546.142 and with work hours of 9:30 a.m. to 5:00 p.m. (Id.). The USPS continued to state that it could not assign Jensen his original work hours of 7:30 a.m. to 4:00 p.m. because he was unable to perform any of the job tasks available between 7:30 a.m. and 9:30 a.m. (Id.). Jensen claims USPS ignored his Request for Information seeking a written explanation as to why he could not perform certain jobs and that he formally declined the modified assignment offer. (Id.). At this point, he claims he became "more and more depressed" and was diagnosed with Major Depression, for which he states he is still undergoing psychological treatment. (Id.).
Jensen eventually filed a claim with the OWCP for Adjustment Disorder with mixed Anxiety and Depressed Mood, a condition he claimed had been caused by management's unrelenting poor treatment of him. (Id.). On June 28, 2012, two grievances were combined and resolved in a Step B decision requiring management to schedule a meeting with Jensen to draft a new LDJO, in accordance with ELM § 546.142, including casing duties upon his return to work. (Id. at p. 10). Despite this, on July 26, 2012, USPS presented one of the same LDJOs it had previously presented to Jensen, rather than draft a new LDJO as mandated. (Id.). This LDJO had work hours of 9:00 a.m. to 5:30 p.m., in violation of ELM § 546.142 and grievance 141/142, along with the previous arbitration awards and the National Agreement. (Id.). Jensen accepted this LDJO "under protest," noting that the LDJO violated the Step B decision and ELM § 546.142. (Id.). This July 26, 2012 offer was the last offer the USPS ever presented to Jensen.
In response to this non-compliant job offer, Defendant, NALC, advised Jensen to file yet another grievance. (Id.). NALC had consistently advised Jensen to file grievances in these circumstances and the record reflects it had been consistently successful on his behalf in doing so. At this point, however, Jensen began agitating with NALC that it file a lawsuit in federal court to enforce the previous arbitration awards, rather than file yet another grievance, which he believed would be "futile." (Id.). As part of his efforts to convince NALC to file suit on his behalf, Jensen wrote NALC's Executive Vice-President, Timothy O'Malley ("O'Malley"), asking that NALC pursue these issues in federal court. (Rec. doc. 1 at If 53). O'Malley responded on October 1, 2012 that any further issues in this regard should be addressed to National Business Agent, Peter Moss ("Moss"). (Id. at ¶ 54). Jensen did just that and received a written response from Moss on
Jensen filed his Complaint on
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law identifies the facts in a case that are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
"The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of genuine issue of material fact." Celotex, 477 U.S. at 323. If the moving party meets its initial burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-movant's burden may not be satisfied by "conclusory allegations, unsubstantiated assertions or only a scintilla of evidence." Warfield v. Bryon, 436 F.3d 551, 557 (5
In this hybrid Section 301 case, Jensen alleges that the NALC breached its duty of fair representation when it acted arbitrarily, in bad faith, or discriminatorily by not timely filing a Section 301 case in federal court on his behalf to remedy the USPS's non-compliance with various arbitration awards and settlements. He further contends that the USPS violated the terms of the CBA by refusing to comply with those awards, settlements and the Step B resolution.
Section 301 of the LMRA, 29 U.S.C. § 185, provides an employee with a federal cause of action against his employer for breach of a collective bargaining agreement.
An employee who sues under Section 301(a) is not required to sue both his employer and the Union. "The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both." DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 165 (1983); Thomas v. LTV Corp., 39 F.3d 611, 621 (5
Consequently, in order to prevail in this suit, Jensen must prove both that the NALC breached its duty of fair representation and that the USPS breached the CBA. If he cannot prove either one of these facts, he cannot prevail on his hybrid claim. The order of proof is important as well, as establishing the Union's breach of duty of fair representation is an "indispensable predicate" for a Section 301 action against the USPS. Thomas, 39 F.3d at 621-22. Thus, "a plaintiff must prevail upon his unfair representation claim before he may even litigate the merits of his § 301 claim against the employer." United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 67 (1981).
Notably for present purposes, hybrid Section 301 claims such as this are subject to a six-month statute of limitations, as set forth in Section 10(b) of the NLRA. 29 U.S.C. § 160(b); DelCostello, 462 U.S. at 171-72; Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 299-300 (5
Jensen filed his lawsuit on May 17, 2013. If he knew or should have known that NALC was not going to file suit on his behalf before November 17, 2012, his suit is time-barred. As was the case with the plaintiff in Barrow II, Jensen "undercuts his own position" on this issue because he admitted under oath that he actually concluded he would have to file this lawsuit more than six months prior to filing it. This sworn admission is dispositive of this suit.
Notably for purposes of these motions, Jensen stated in his Complaint:
(Id. at ¶ 60).
Jensen, through counsel, has continued to take the position — particularly in opposition to the USPS' statute of limitations argument in its summary judgment motion — that O'Malley's November 23, 2012 letter, devoid of any reference to litigation, was the "trigger" for the 6-month statute of limitations to begin to run. In fact, in opposition to that motion, Jensen states:
(Rec. doc. 58 at p. 11).
In its summary judgment motion, USPS argues that the six-month limitations period began to run, not upon Jensen's receipt of the November 20th O'Malley Letter, but upon Jensen's receipt of Moss's October 26, 2012 letter and that his lawsuit, filed on May 17, 2013, was untimely because it was filed more than six months after his receipt of that letter on October 29, 2012. (Rec. doc. 43-1 at p. 16). In support of this argument, USPS quotes Jensen's own sworn testimony from his deposition in this case:
(Rec. doc. 43-5 at p. 41)(emphasis added)
In response to this argument, Jensen ignores this testimony and attempts to claim that the "trigger" for the limitations period to begin running was his receipt of O'Malley's letter on November 20, 2012. In doing so, Jensen, through counsel, does not so much disavow that testimony as simply ignore it in an attempt to create a factual dispute. Speaking directly to USPS's Statement of Undisputed Facts No. 32 (rec. doc. 43-12), which, citing the above-quoted testimony, reads, "Plaintiff knew that it was futile and `redundant' seeking the Union's assistance with filing a suit in district court when he received Pete Moss' letter dated October 26, 2012," Jensen states in a signed, but un-notarized, "declaration:"
(Rec. doc. 57-2 at If 20).
Importantly, nowhere in the record does Jensen address, disavow or otherwise attempt to explain his sworn deposition testimony that he actually knew upon receipt of the Moss letter that he had no choice but to file "this suit" on his own. While Jensen is free to ignore this testimony and its importance here, the Court cannot.
The limitations period in this matter began to run on the date Jensen knew or should have known that NALC had breached its duty of fair representation to him by refusing to file a lawsuit. The Court need not cast about for evidence to indicate when Jensen
Because this lawsuit was filed after the six-month limitations period had run, it is untimely and must be dismissed. Accordingly, the motion for summary judgment filed by the USPS is hereby GRANTED. Because that action results in the dismissal of all of Jensen's claims against both Defendants (Thomas, 39 F.3d at 621-22; Mitchell, 451 U.S. at 67) the Court need not address the remaining arguments on the merits of the USPS, NALC or Jensen and hereby DISMISSES AS MOOT the motions for summary judgment filed by Jensen and the NALC.
