Carrington v. United States
| Decision Date | 19 May 2014 |
| Docket Number | Civil Action No. 12–1360 ESH |
| Citation | 42 F.Supp.3d 156 |
| Parties | Derrick Carrington, Plaintiff, v. United States of America, National Association of Letter Carriers, AFL–CIO, Defendants. |
| Court | U.S. District Court — District of Columbia |
Donna M.B. King, Law Offices of Donna M.B. King, Towson, MD, for Plaintiff.
Courtney Sheehan McNamara, Mitchell P. Zeff, U.S. Department of Justice, Victoria Louise Bor, Sherman, Dunn, Cohen, Leifer & Yellig P.C., Washington, DC, Thomas N. Ciantra, Cohen, Weiss and Simon, LLP, New York, NY, for Defendants.
Plaintiff Derrick Carrington brings this hybrid breach of contract and duty of fair representation action against his former employer, the United States Postal Service (“USPS”), and his former union, the National Association of Letter Carriers, AFL–CIO (“Union”), pursuant to section 301 of the Labor Management Relations Act (“LMRA”). Plaintiff was employed by the USPS from February 4, 2006, until his termination on January 2, 2010. Plaintiff alleges that the USPS breached the Collective Bargaining Agreement and that the Union failed to fairly represent him in two grievance proceedings related to his termination. Before the Court are defendants' motions for summary judgment. (Def. Nat'l Ass'n of Letter Carriers Mot. for Summ. J. (“Union Mot.”), March 3, 2014 [Dkt. No. 29–2]; Def. United States of America's Mot. for Summ. J. (“USPS Mot.”), March 5, 2014 [Dkt. No. 30].) For the following reasons, the Court will grant both motions.
Plaintiff began his employment with the USPS on February 4, 2006. (USPS Statement of Facts (“USPS SOF”) [Dkt. No. 30] ¶ 1.) In September 2008, the USPS suspended plaintiff from work for fourteen days for irregular attendance. (Id. ¶ 2.) Between August 20 and November 6, 2009, plaintiff had fourteen unscheduled absences, thirteen of which were without leave. (Notice of Removal, Dec. 2, 2009 [Dkt. No. 30–1 Ex. 2] at 1; see also Dep. of Derrick Carrington, Dec. 23, 2013 [Dkt. No. 30–1 Ex. 17] at 31.) During a November 16, 2009 pre-disciplinary interview, a manager questioned plaintiff about his unscheduled absences. Plaintiff responded that “[d]uring that time, [he] was relieving stress from this station, so [he] did not report to work.” (Notice of Removal at 2; see USPS SOF ¶¶ 5–6.) The USPS considered plaintiff's stated reason for his poor attendance “unacceptable,” and on December 2, 2009, it issued a Notice of Removal. (USPS SOF ¶ 9; see Notice of Removal at 1.)
Because plaintiff was not at work the day the USPS issued his Notice of Removal, the USPS mailed the Notice to the two addresses it had on file for plaintiff. (USPS SOF ¶¶ 10, 13–16.) On December 3, 2009, the Notice was successfully delivered via certified and delivery confirmation mail to an out-of-date address in Northwest Washington, D.C. (Id. ¶¶ 17–19; Pl.'s Statement of Facts (“Pl.'s SOF”) [Dkt. No. 32–1] ¶ 17.) The next day, the Notice was successfully delivered via delivery confirmation mail to plaintiff's address of record in Northeast Washington, D.C. Although that address was up-to-date, the attempted delivery via certified mail—requiring a signature—was unsuccessful. (USPS SOF ¶ 20; Pl.'s SOF ¶ 1.) According to Kachisa McCall, plaintiff's live-in fiancé at the time, a copy of the Notice was not received at their address. (See Decl. of Kachisa McCall, April 2, 2014 [Dkt. No. 32–4] ¶ 5.)
On December 1, 2009—a day before the USPS issued the Notice of Removal—plaintiff went missing. Plaintiff cannot recall where he was from that time until December 17, 2009, when he voluntarily checked into a psychiatric hospital to seek treatment for depression. (Pl.'s SOF ¶¶ 23–24.) Ms. McCall was also unaware of plaintiff's whereabouts during that time period. (Id. ¶¶ 3–4.) On the same day plaintiff checked into the hospital, Ms. McCall received at their address a letter from the USPS notifying plaintiff of a pre-disciplinary interview scheduled for December 24, 2009. (Id. ¶ 5.) At some point in the next two days, Ms. McCall contacted plaintiff's supervisor about the letter, at which point she learned that the USPS planned to terminate plaintiff's employment. (McCall Decl. ¶ 7.) Ms. McCall told plaintiff's supervisor that plaintiff was submitting a grievance and then contacted a Union representative. (Id. ¶¶ 7–8.) On December 18, 2009, Ms. McCall forwarded medical documentation regarding plaintiff's psychiatric treatment to the USPS and the Union. (Id. ¶ 10.)
Plaintiff was discharged from psychiatric care on December 22, 2009, at which point he took over communications with the USPS and the Union regarding his removal. (Pl.'s SOF ¶ 11; see USPS SOF ¶ 23.) The Union initiated an Informal Step A grievance (the “removal grievance”) with the USPS on December 29, 2009. (USPS SOF ¶ 26.)
Article 15.2 Informal Step A(a) of the Collective Bargaining Agreement (“CBA”) between the USPS and the Union provides that:
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 first learned or may reasonably have been expected to have learned of its cause. This constitutes the Informal Step A filing date.... The Union also may initiate a grievance at Informal Step A within 14 days of the date the Union first became aware of (or reasonably should have become aware of) the facts giving rise to the grievance.
( The USPS denied the Informal Step A grievance as untimely under Article 15.2 because the grievance was not initiated within fourteen days of the delivery of the Notice of Removal to plaintiff's address of record. (USPS SOF ¶ 27.)
The Union was entitled to file a written appeal of the Informal Step A grievance opinion to Formal Step A “within seven (7) days of the date of the [Informal Step A] discussion.” (CBA Art. 15.2 Informal Step A(c).) On December 31, 2009, the Union mailed to the USPS a list of “Formal Step A Appeals” that included plaintiff's removal grievance number. (Union Statement of Facts (“Union SOF”) [Dkt. No. 29–3] ¶ 13.) The USPS removed plaintiff from its rolls on January 12, 2010.
On April 27, 2010, the USPS and the Union agreed to undertake a “blitz” process to settle a significant number of backlogged grievances. (USPS SOF ¶ 3 1.) On August 19, 2010, during the “blitz,” Union representative Paul Simmons and USPS representative Alice Bell signed a Formal Step A agreement that contemplated settling plaintiff's grievance by reducing plaintiff's removal to a suspension and allowing plaintiff to return to work without back pay on August 21, 2010. (Id. ¶ 33; Union SOF ¶ 16.) Upon being informed of the agreement, USPS management—including plaintiff's supervisor—concluded that the agreement was not enforceable because the removal grievance had been rejected as untimely and therefore was not pending when the settlement agreement was signed. (USPS SOF ¶ 35.) During the “blitz,” Alice Bell had not raised the issue of whether plaintiff's removal grievance had been initiated in a timely fashion at the Informal Step A or whether the Union had timely appealed the grievance to Formal Step A. (Union SOF ¶ 16.)
The Union then initiated on plaintiff's behalf a new Informal Step A grievance (the “noncompliance grievance”) regarding the USPS's refusal to honor the settlement agreement signed during the “blitz” process. (USPS SOF ¶ 37; Union SOF ¶ 17.) The USPS and the Union failed to resolve the non-compliance grievance through the Informal or Formal Step A processes. (USPS SOF ¶ 38; Union SOF ¶¶ 18–19.) At the Formal Step B stage, USPS management contended that plaintiff's removal grievance was never properly appealed to the Formal Step A stage and thus was improperly included in the “blitz” process. The USPS also argued that, because there had been no appeal to the Formal Step A stage, it had removed plaintiff from its rolls on January 12, 2010. (Union SOF ¶ 20.) The Formal Step B processes culminated in an “impasse,” after which the Union timely advanced the non-compliance grievance to arbitration. (Id. ¶ 23.)
On April 27, 2011, the Union argued before the arbitrator that the USPS had waived any timeliness defenses regarding plaintiff's removal grievance by failing to raise them during the “blitz” process, and therefore, the USPS had breached the CBA by refusing to allow plaintiff to return to work after the settlement agreement negotiated during the “blitz” had been signed. (Id. ¶ 25.) On May 24, 2011, the arbitrator entered her opinion denying the grievance. (Id. ¶ 26.) The arbitrator concluded:
The Union failed to establish that a grievance concerning the [plaintiff's] Notice of Removal was pending when the Union and the Postal Service met on August 19, 2010. The Formal Step A Blitz Team was authorized to resolve pending grievances. The Blitz Team exceeded its authority by agreeing to “reinstate” the grievant. The grievance is denied.
(Arbitration Award, May 24, 2011 [Dkt. No. 30–1 Ex. 13] at 1.) The arbitrator emphasized that “the Union presented no evidence based on personal knowledge that a grievance was turned in at all, let alone turned in within the 14 day time limit.” (Id. at 3.) Because there was no evidence of a pending grievance at the time of the “blitz,” “there was no valid settlement agreement between the parties.” (Id. ) The Union chose not to bring a lawsuit challenging the arbitrator's decision because, as according to the Union, an arbitrator's decision is binding so long as she “construes and applies” the CBA. (Union SOF ¶ 26.)
On November 14, 2011, plaintiff filed this hybrid § 301/fair representation action against the USPS and the Union in the Court of Federal Claims. On July 31, 2012, that Court concluded that it lacked subject matter jurisdiction over the claims and transferred the case to this Court, see Carrington v. United States, 106 Fed.Cl. 129, 133–36 (2...
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