Roman v. U.S. Postal Service

• Decision Date: 01 June 1987
• Docket Number: No. 86-2242,86-2242
• Citation: 821 F.2d 382
• Parties: 125 L.R.R.M. (BNA) 2623 Jose J. ROMAN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 382

821 F.2d 382

125 L.R.R.M. (BNA) 2623

Jose J. ROMAN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 86-2242.

United States Court of Appeals Seventh Circuit.

Argued April 28, 1987.

Decided June 1, 1987.

Arthur Ehrlich, Goldman & Marcus, Chicago, Ill., for plaintiff-appellant.

Geoffrey Drucker, U.S. Postal Service, Washington, D.C., for defendant-appellee.

Before BAUER, Chief Judge, and CUMMINGS and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

In this appeal, Jose Roman, a former postal worker, argues that the district court improperly dismissed his due process claim for failure to exhaust grievance procedures under the collective bargaining agreement. We affirm the district court's decision.

I. Facts

In 1983, Roman was a career employee at the United States Post Office in Bartlett, Illinois. He was also a member of the National Association of Letter Carriers (the Union), which is the exclusive collective bargaining agent for letter carriers at Bartlett and around the country. The terms and conditions of Roman's employment were governed by a collective bargaining agreement between the Union and the United States Postal Service (the Postal Service).

Shortly after Roman received his career appointment, Ira Shinn, the Postmaster at the Bartlett Post Office, accused him of falsifying his employment application form. Although Roman denied falsifying the form, Shinn told him that he could either leave his employment "the easy way" or forcibly. Shinn promised Roman that if he resigned he would be rehired at another postal facility.

At some point after Roman had resigned (the record does not reveal when), Roman "determined that Shinn's threats and coercion and promises and inducements were all false and fraudulent." Roman was not rehired at another facility and the Postal Service did not assist him in finding new employment.

Roman filed this action against the Postal Service seeking reinstatement, backpay and punitive damages. He alleged that the Postal Service had violated his due process rights in fraudulently inducing him to resign from his employment. ¹

The Postal Service filed a motion to dismiss under Fed.R.Civ.P. 12(b). The motion was supported by excerpts from the collective bargaining agreement and an affidavit from Shinn which stated that he had made a thorough search of the Postal Service's records and could find no record of a grievance filed by Roman or on his behalf relating to his involuntary resignation claim. In Roman's response to the motion to dismiss, he argued that when he learned of his grievance he had already resigned and therefore was no longer an "employee" required to exhaust contractual remedies. He also attached an affidavit in which he stated that after he learned that he would not be rehired by another postal facility, he had approached Shinn who told him that there was nothing he could do to help Roman because he had already resigned. In addition, the affidavit stated that Roman had contacted Union representatives but was informed that once he had resigned he was no longer an employee and could not file a grievance under the collective bargaining agreement.

The district court found that Roman's due process claim was necessarily a postal labor claim under 39 U.S.C. Sec. 1208(b), that the Postal Service had breached the collective bargaining agreement. The district court dismissed the claim because Roman's complaint contained no allegations that he had exhausted the grievance procedures set out in the agreement. Roman appeals.

II. Standard of Review

The first issue on appeal is the appropriate standard of review. The district court apparently dismissed the action under Fed.R.Civ.P. 12(b)(1), concluding that Roman's failure to exhaust contractual remedies deprived it of subject matter jurisdiction. By construing Roman's claim as one for breach of the collective bargaining agreement, however, the district court implicitly found that it did have subject matter jurisdiction. Under Sec. 2 of the Postal Reorganization Act (PRA), district courts with personal jurisdiction over the parties have subject matter jurisdiction over

[s]uits for violations of contracts between the Postal Service and a labor organization representing Postal Service employees ...

39 U.S.C. Sec. 1208(b). Since the district court had subject matter jurisdiction over the action, it should not have labeled it a Rule 12(b)(1) dismissal. Rather, the district court should have considered the Postal Service's motion under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Roman failed to demonstrate that he exhausted the contractual remedies and that is a prerequisite to his claim for relief. See, e.g., D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1476, 1488-89 (7th Cir.1985) (affirming dismissal of claim for breach of collective bargaining agreement under Rule 12(b)(6) for failure to exhaust contractual remedies); Mudahy v. Cleaver, 590 F.Supp. 1209, 1210 (W.D.Mich.1984) (Rule 12(b)(6) dismissal of postal employee's claim for failure to exhaust contractual remedies); but see Rivera v. Government of Virgin Islands, 635 F.Supp. 795, 797 (D.V.I.1986) (exhaustion of contractual remedies is an issue to be decided under Rule 12(b)(1)); Wynn v. Boeing Military Airplane Co., 595 F.Supp. 727, 728 (D.Kan.1984) (absent exhaustion of contractual remedies district court had no jurisdiction).

Whether the district court properly dismissed under Rule 12(b)(1) affects this court's standard of review because the district court clearly went outside the pleadings and considered Shinn's affidavit but not Roman's. It is proper for the district court to look beyond the jurisdictional allegations in the complaint and to view whatever evidence has been submitted in determining whether subject matter jurisdiction exists under Rule 12(b)(1). Grafon Corp. v. Hausermann, 602 F.2d 781, 782 (7th Cir.1979). But if the district court is considering whether a claim should be dismissed under Rule 12(b)(6) and "matters outside the pleadings are presented to and not excluded by the district court" the motion should be treated as one for summary judgment under Fed.R.Civ.P. 56(c). See Fed.R.Civ.P. 12(b); Malack v. Associated Physicians Inc., 784 F.2d 277, 279 (7th Cir.1986); Crawford v. United States, 796 F.2d 924, 927 (7th Cir.1986). Since the district court had subject matter jurisdiction and it considered matters outside the pleadings, we will review the dismissal under the same standard that we would a summary judgment motion. ²

Summary judgment is proper only when the moving party has established that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The existence of a genuine issue of material fact is a legal determination subject to de novo review. In re Colonial Discount Corp., 807 F.2d 594, 596 (7th Cir.1986). In considering a motion for summary judgment, all ambiguities and reasonable inferences are to be resolved against the moving party and in favor of the party opposing the motion. Brock v. American Postal Workers Union, 815 F.2d 466, 469 (7th Cir. March 26, 1987); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial).

III. Jurisdictional Basis of Roman's Claim

The district court concluded that Roman's claim was essentially based upon a breach of the collective bargaining agreement. We believe that conclusion was correct. Roman's complaint asserted that jurisdiction was proper under 28 U.S.C. Sec. 1339, which grants district courts jurisdiction "over any civil action arising under any Act of Congress relating to the Postal Service." Section 1339 does not, however, create an independent source of jurisdiction. Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d 1182, 1189-92 (7th Cir.1981). By permitting the Postal Service, an independent executive establishment, to sue and be sued, Sec. 1339 only removes the sovereign immunity barrier that might otherwise exist in suits involving the Postal Service. Id. In order for the district court to have jurisdiction, Roman's complaint had to be based upon some other substantive legal framework.

Roman's allegation that the Postal Service violated his due process rights in threatening him and forcing him to resign does not provide jurisdiction. Where Congress has created an elaborate, remedial scheme which adequately and comprehensively addresses the protection of constitutional rights in the employment context, an employee whose rights are protected through that scheme cannot bring a new, non-statutory action. Bush v. Lucas, 462 U.S. 367, 385, 103 S.Ct. 2404, 2415, 76 L.Ed.2d 648 (1983). In Ellis v. United States Postal Service, 784 F.2d 835, 839-40 (7th Cir.1986), postal employees raised political discrimination claims based upon the due process clause of the Fifth Amendment. This court affirmed the district court's dismissal of those claims, holding that the means for redressing grievances in the Postal Service are both adequate and comprehensive. This court emphasized that "Congress has expressly authorized the adoption of final and binding grievance provisions in the Postal Service collective bargaining agreements, 29 U.S.C. Sec. 1206(a), and ... the particular collective bargaining agreement between the Postal Service and the employees' union establishes a multi-step procedure which culminates in binding third-party arbitration." Id. at 839-40. But see McNair v. United States Postal Service, 768 F.2d 730, 736 n. 8 (5th Cir.1985). Thus, the postal employees were not entitled to bring their claims directly under the due process clause.

A postal employee does have a property interest in...