Boehm v. U.S. Postal Serv.

• Decision Date: 12 November 2013
• Docket Number: 8:12CV198
• Parties: KERI BOEHM, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Nebraska

KERI BOEHM, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

8:12CV198

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

DATED November 12, 2013

MEMORANDUM AND ORDER

Plaintiff Keri Boehm ("Plaintiff") brought this action against the United States Postal Service ("Defendant") seeking to vacate an arbitration award, alleging that Defendant breached a collective bargaining agreement and that the National Association of Letter Carriers (the "Union") breached its duty of fair representation. (Filing 34.)

The parties have filed cross-motions for summary judgment. (Filings 41 & 45.) Having fully considered the matter, Plaintiff's Motion for Summary Judgment (filing 41) will be denied, and Defendant's Cross Motion for Summary Judgment (filing 45) will be granted.

STATEMENT OF FACTS

1. From 1998 to October 2011, Plaintiff was employed by Defendant as a city letter carrier. At all times relevant to this action, Plaintiff worked at the Saddle Creek Station in Omaha, Nebraska. (Filing 34; Filing 46-5.)

2. Plaintiff was a member of the Union and worked for Defendant under the National Agreement ("collective bargaining agreement" or "CBA") negotiated between the Union and Defendant. (Filing 46-2.)

3. Article 15 of the CBA sets forth a Grievance-Arbitration procedure, which includes the following steps:

a. Informal Step A - Any employee who feels aggrieved must discuss the grievance with the employee's immediate supervisor within fourteen (14) days. The employee may be accompanied by a steward or Union representative. The Union may also initiate a grievance at Informal Step A. If no resolution is met, the Union shall be entitled to file a written appeal to Formal Step A within seven (7) days.

b. Formal Step A - A Joint Step A Grievance Form shall be filed with the installation head or designee. The installation head or designee will meet with the steward or Union representative within seven (7) days. The grievant shall be represented for all purposes by a steward or Union representative who has authority to resolve the grievance as a result of the discussions or compromise. The Union representative shall make a full and detailed statement of the facts relied upon, contractual provisions involved, and remedy sought. The Union representative may also furnish written statements from witnesses or other individuals. The employer representative shall make full and detailed statement of facts and contractual provisions. The Formal Step A decision is to be made and the Joint Step A Grievance Form is completed the day of the meeting. The Union may appeal an impasse to Step B within seven (7) days.

c. Step B - An appeal from an unresolved case in Formal Step A shall be appealed in writing to the Step B team. The Step B team will review the appeal and issue a joint report of the decision and any supporting findings within fourteen (14) days. It is the responsibility of the Step B team to ensure that the facts and contentions of grievances are fully developed and considered, and resolve grievances jointly. The Step B team may (1) resolve the grievance, (2) declare an impasse, (3) hold the grievance pending resolution of a representative case or national interpretive case, or (4) remand the grievance with specific instructions. The Union may appeal an impasse directly to arbitration within fourteen (14) days after the receipt of the Step B impasse.

d. Arbitration - All decisions of an arbitrator will be final and binding.

(Filing 46-6, Attachment B.)

4. Article 16.1 of the CBA provides that "[n]o employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage . . . . Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement. . ." (Filing 46-1, Attachment A.) 5. On or about April 1, 2011, Roger Humphries ("Humphries"), United States Postal Service Customer Relations Coordinator, received a phone call from Diane Inmann ("Inmann"), the manger of Bath and Body Works in Omaha, Nebraska. Inmann stated that a postal carrier named Keri had been coming to Bath and Body Works in her postal uniform and redeeming $5 coupons. The coupons were good for one per household, and Inmann reported that the carrier in question was bringing them in by the handful, fifteen to twenty at a time. (Filing 46-3, Attachment A.)

6. Humphries was able to determine that Plaintiff was the carrier in question. Humphries emailed the information from his conversation with Inmann to Special Agent Theresa Myers from the United States Postal Service Office of Inspector General (OIG"). The email was later forwarded to Special Agent Gabriel Ortiz ("Ortiz") of the OIG for further investigation. (Filing 46-3.)

7. On April 21, 2011, Ortiz interviewed Inmann who positively identified the carrier in question as Plaintiff. On the same day, Ortiz spoke with Don Allmon ("Allmon"), Manager of Customer Service at the Saddle Creek Station. Ortiz informed Allmon that he was investigating a customer report concerning possible mail theft by a carrier. Ortiz requested information about Plaintiff, and instructed Allmon to keep the investigation confidential. Ortiz continued his investigation of Plaintiff from April to July, 2011. (Id.)

8. On July 21, 2011, Ortiz and Meyer went to the Saddle Creek Station to interview Plaintiff. (Id.) At the arbitration, the Union and Defendant stipulated to the fact that prior to the interview, Plaintiff asked Allmon "Do I need a Steward?" and Allmon replied, "I don't know. I am not the one conducting the interview." (Filing 46-1.) Plaintiff did not request a Union steward or ask Ortiz whether she needed one during the interview. The interview proceeded without a Union steward present. (Filing 46-3.)

9. During the interview with Ortiz, Plaintiff admitted that she had taken coupons from the bin of Undeliverable Bulk Business Mail ("UBBM"), including coupons from Bath and Body Works and Victoria's Secret. She admitted that she had redeemed coupons while still in her uniform. (Id.)

10. UBBM is third-class mail that cannot be delivered for a variety of reasons, including, but not limited to, relocation by residents. (Filing 46-3.) At the Saddle Creek Station, UBBM was put into yellow bins located at each workstation. Carriers placed UBBM into the bins. On a daily basis, a clerk assigned to UBBM would sort through the bins to make sure everything in it was appropriately UBBM. The clerk also looked for items of value, such as pens, calendars, and samples. The clerk placed goods that could be reused into a collection box. Samples such as cereal, soaps, lotions, etc. would be donated to charity. Items such as pens, pencils and calendars would be used for business purposes at the Saddle Creek Station. (Filing 46-1; Filing 46-4; Filing 46-5.)

11. The Postal Service has six policy manuals that employees must comply with. In 2011, one such policy manual, the Postal Operations Manual ("POM"), provided that "[e]mployees are not permitted to remove undeliverable mail and/or waste or waste receptacles from postal facilities for personal use or for any use not authorized by the Postal Service." Sections 691.533.a. and 691.522.c. of the POM in effect during 2011 provided that undeliverable merchandise, product samples, and cosmetics should be disposed of by donating to public and charitable organizations that agree to distribute the products for free. Section 691.45 of the POM further provided that items other than money and uncanceled stamps could be reused for business purposes only. (Filing 46-6, Attachment E; Filing 46-4, Attachment B.)

12. Following Ortiz's interview with Plaintiff on July 21, 2011, Ortiz briefed Allmon regarding Plaintiff's statements. Allmon, after consultation with Labor Relations and Postmaster Keith Reid ("Reid"), placed Plaintiff was on Emergency Placement, pending an investigation. (Filing 46-4.)

13. On or about August 29, 2011, Ortiz issued an investigative report. The report stated, in part, as follows:

The OIG investigation revealed that for a period exceeding a year, [Plaintiff] removed and redeemed multiple pieces of Standard Class Mail which contained coupons to Bath and Body Works, Victoria's Secret, and JC Penney's. [Plaintiff] admitted she removed the mail, which was intended for residents serviced by the Saddle Creek Station, form Undeliverable BulkBusiness Mail (UBBM). Moreover, [Plaintiff] admitted to soliciting for additional coupons from customers on her route, while in uniform and on duty. While [Plaintiff] was unable to provide a total value in items received as a result of redeeming the coupons, [Plaintiff] stated, "If they want me to pay it back, I will."

(Filing 46-3, Attachment C.)

14. On September 9, 2011, following receipt of Ortiz's investigative report, Plaintiff's supervisor, Keith Sucha ("Sucha"), conducted an investigative interview with Plaintiff. Union steward, Chris Grunke (Grunke"), was present. Plaintiff admitted to taking coupons from the mail and redeeming them at shopping malls. She further admitted that she redeemed coupons while in her uniform. (Filing 46-5.)

15. On September 15, 2011, Sucha spoke with Ortiz regarding his investigative report. On that date, Sucha also interviewed Inmann, as well as another Bath and Body Works employee who told Sucha that Plaintiff had been coming into the store with multiple coupons for many months. (Id.)

16. On September 27, 2011, Sucha conducted a pre-disciplinary interview with Plaintiff. Grunke was present. Plaintiff was questioned regarding how she came into possession of the coupons. Plaintiff again admitted to taking the coupons from the mail. (Id.)

17. On October 5, 2011, Sucha submitted a Disciplinary Action Proposal, recommending that Plaintiff be removed from her position. Allmon reviewed the Disciplinary Action Proposal and agreed with Sucha's recommendation to terminate Plaintiff. On October 26, 2011, Sucha issued a Notice of Removal to Plaint...