American Postal Workers Union, AFL-CIO v. U.S. Postal Service

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation940 F.2d 704
Docket NumberAFL-CIO,No. 90-5022,90-5022
Parties138 L.R.R.M. (BNA) 2098, 291 U.S.App.D.C. 273 AMERICAN POSTAL WORKERS UNION,, et al., Appellants, v. UNITED STATES POSTAL SERVICE, et al., Appellees.
Decision Date09 August 1991

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-02154).

Diana Ceresi, Arlington, Va., for appellants. Anton G. Hajjar was on the brief Washington, D.C., for appellants. Darryl J. Anderson also entered an appearance, Washington, D.C., for appellants.

Kevin B. Rachel, Atty., U.S. Postal Service, with whom Edward F. Ward, Jr., Asst. Gen. Counsel, U.S. Postal Service, Jay B. Stephens, U.S. Atty., and John D. Bates, R. Craig Lawrence and Charles L. Hall, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellees.

Before RUTH BADER GINSBURG, D.H. GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

In this action we review the district court's grant of summary judgment to the defendants in a suit challenging the U.S. Postal Service's dismissal of four probationary employees. We hold that the applicable collective bargaining agreement leaves these probationary postal employees with no contractual means of challenging their dismissals and that the Federal Tort Claims Act affords them no right of action for retaliatory dismissal.

I. BACKGROUND

The appellants, plaintiffs below, are four former probationary postal employees and their union. The four individuals sustained work-related injuries or developed occupational illnesses shortly after they began working for the U.S. Postal Service (USPS or Postal Service) and they filed claims with their employer for compensation under the Federal Employees Compensation Act, 5 U.S.C. Secs. 8101 et seq. (FECA). 1 After their compensation claims were filed and still within the 90-day probationary period provided in the collective bargaining agreement, 2 all four employees were terminated.

Article 2 of the collective bargaining agreement prohibits discrimination based on physical handicap. 3 Article 21 provides that employees are covered by the FECA and it requires the USPS to promulgate regulations consistent with the regulations of the Office of Workers Compensation Programs implementing the FECA. 4 In compliance with this portion of the agreement, the USPS issued a regulation prohibiting a postal official to "induce[ ], compel[ ] or direct[ ] an employee to forego filing a claim under FECA." To challenge their dismissals, three of the four probationers filed grievances regarding which they sought arbitration. The arbitrator ruled, however, that the grievances were not arbitrable because the collective bargaining agreement closed the grievance and arbitration procedures to probationary employees challenging their dismissals.

The plaintiffs then filed this lawsuit against the USPS and the United States in the district court. The amended complaint alleged that the USPS had terminated the individual plaintiffs because of their handicaps and in retaliation for their filing of FECA claims. On the defendants' motions, the district court granted summary judgment on all five counts of the complaint. On appeal, the plaintiffs pursue their claims alleging breach of the collective bargaining agreement's nondiscrimination obligation and breach of that portion of the agreement prohibiting the dismissal of employees for filing FECA claims. They also assert that the district court erred in dismissing their claim under the Federal Tort Claims Act (FTCA) for retaliatory dismissal.

II. BREACH OF CONTRACT CLAIMS

Article 12 of the collective bargaining agreement covering the plaintiff employees establishes a probationary employment period:

The probationary period for a new employee shall be ninety calendar days. The Employer shall have the right to separate from its employ any probationary employee at any time during the probationary period and these probationary employees shall not be permitted access to the grievance procedure in relation thereto.

The arbitrator ruled that this clause of the agreement denied the probationers the opportunity to arbitrate their dismissals and they do not question that ruling. Although the appellants concede that the contract excludes them from arbitration, they contend that the contract's nondiscrimination and FECA provisions confer rights on them that they may vindicate in federal court through a suit for breach of the collective bargaining agreement. The appellants contend that their situation is similar to that in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). There, the Supreme Court held that, when a collective bargaining agreement permits only employees to initiate arbitration procedures, the employer may sue in federal court for breach of the contract's no-strike clause. Id. at 241-43, 82 S.Ct. at 1320-22.

In order to challenge their dismissals by a breach of contract claim, the appellants must first establish that the contract accords them rights that they may vindicate in federal court. In the Atkinson collective bargaining agreement, the union had unambiguously "undertak[en] not to strike" so as to give rise to rights the employer could enforce through a suit for breach of contract. See id. at 241 & n. 1 82 S.Ct. at 1320 & n. 1. Similarly, the appellants must establish that, notwithstanding their probationary status, the contract's nondiscrimination and FECA clauses provide them with contractual rights they may exercise to challenge their dismissals.

The appellants contend the collective bargaining agreement contemplates that, because they may not challenge their dismissals in arbitration, probationary employees will instead do so in federal court. At the very least, they assert, a genuine issue of material fact sufficient to preclude summary judgment exists with respect to the parties' intent on this question. We find the appellants' arguments unpersuasive.

It is true that the agreement involved here does not affirmatively state that arbitration is the exclusive means for employees to contest their dismissals. Cf. Hollins v. Kaiser Found. Hosps., 727 F.2d 823, 824 (9th Cir.1984) (probationary employee may not challenge discharge in federal court when grievance procedure is "exclusive method of resolving 'all disputes' "). In light of the language of the contract's probationary employment clause, however, we do not read this omission to imply that the appellants may raise their contract-based claims in federal court. Article 12 of the collective bargaining agreement gives the USPS the broad discretion to "separate from its employ any probationary employee at any time during the probationary period." This language unmistakably denies probationary employees the contractual protections against dismissal that employees enjoy after their first 90 days of service: it permits the USPS to dismiss "any probationary employee" regardless of its reason for doing so without breaching the collective bargaining agreement.

It would turn the effect of the probation clause on its head to hold, as the appellants argue, that dismissed probationers are excluded from arbitration but may nonetheless bring suit for breach of contract, taking advantage of the full range of contractual protections available to nonprobationary employees. If we were to accept the appellants' argument, the only difference between probationary and nonprobationary employees would be the forum in which they enforced their rights under the contract: probationary employees would enforce their rights in federal court while nonprobationers would be limited to arbitration. See American Postal Workers v. USPS, 789 F.2d 1, 4-5 (D.C.Cir.1986) (under Supreme Court's Steelworkers Trilogy, arbitration, when available, is binding and conclusive of employee's claims).

According to the appellants' logic, dismissed probationers could sue not only to enforce the employer's nondiscrimination and FECA obligations; so long as they did so in federal court rather than through arbitration, they could also enforce against the employer the just-cause requirement for dismissals contained in Article 16. Allowing this would undermine the purpose of a probationary employment period--to permit an employer to evaluate a new employee on a trial basis and terminate him for whatever reason it chooses during the trial period of employment.

Because the appellants' interpretation would read the probation clause out of the collective bargaining agreement, we reject their contention that the agreement excludes probationers only from arbitration, permitting them to sue for breach of contract. Probationary postal employees have "no contractual right to continued employment, [and their] discharge cannot be considered a breach of the collective bargaining agreement." Van Leeuwen v. USPS, 628 F.2d 1093, 1097 (8th Cir.1980); see also Sanders v. WMATA, 819 F.2d 1151, 1158 (D.C.Cir.1987) (probationary employee terminable at will and without access to grievance proceedings has no contractual claim for termination).

In view of our holding that the agreement unambiguously denies to the dismissed probationary employees the right to proceed in court for breach of contract, we necessarily reject the appellants' argument regarding a genuine issue of material fact on the meaning of the contract. They submitted to the district court an affidavit declaring that the union's intent in negotiating the contract was that probationers could sue for breach of contract. In the absence of ambiguity in the collective bargaining agreement, however, we have no cause to examine extrinsic evidence of the parties' intent. See, e.g., Operating Eng'rs Pension Trusts v. B & E Backhoe, Inc., 911 F.2d 1347, 1352 (9th Cir.1990). The affidavit regarding the parties' intent therefore creates no...

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