Garity v. APWU Nat'l Afl-Cio

• Decision Date: 18 June 2012
• Docket Number: 2:11-CV-01109-PMP-CWH
• Parties: ROSEMARY GARITY, Plaintiff, v. APWU NATIONAL AFL-CIO and APWU LOCAL #7156, Defendants.
• Court: U.S. District Court — District of Nevada

ROSEMARY GARITY, Plaintiff,
v.
APWU NATIONAL AFL-CIO and APWU LOCAL #7156, Defendants.

2:11-CV-01109-PMP-CWH

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED: June 18, 2012

ORDER

Presently before the Court is Defendant APWU Local #7156's Motion to Dismiss Amended Complaint (Doc. #57) and Defendant APWU National AFL-CIO's Motion to Dismiss Amended Complaint (Doc. #60), both filed on December 6, 2011. Plaintiff Rosemary Garity filed an Opposition (Doc. #69) on December 19, 2011. Defendants filed a Joint Reply (Doc. #70) on January 6, 2012.

I. BACKGROUND

The following factual recitation is derived from Plaintiff Rosemary Garity's Amended Complaint. For purposes of Defendants' motions to dismiss, the Court accepts Plaintiff's factual allegations as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A. Plaintiff's Employment and Impairments

Plaintiff Rosemary Garity is employed by the American Postal Worker's Union ("the National APWU") as vice-president of the southern district of Nevada. (Am. Compl. (Doc #54) at 4:18.) Plaintiff was also employed by APWU Local #7156 ("the Local

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APWU") as a shop steward between January 2008 and January 12, 2011. (Id. at 4:19-20.) Plaintiff was a member of the Local APWU at all times relevant to this action. (Id. at 4:20.) Plaintiff suffers from mental and physical impairments including: heel spurs, chest pains, chronic fatigue, sleep disturbance, myalgia, muscle spasms, osteoporosis, major depressive disorder, anxiety disorder, panic attacks, and cancer. (Id. at 4:26-5:1.)

In September 2010, Debra Blankenship ("Blankenship") became the new Postmaster. (Id. at 22:26-23:2.) After Blankenship's arrival, Plaintiff began to observe favoritism and disparate treatment in the office and decided to address it through the grievance system. (Id. at 23:1-2.) On November 10, 2010, Kathi Poulos ("Poulos"), the newly-elected president of the Local APWU, arrived after being voted in by a group whom Plaintiff labels the "favorite employees." (Id. at 23:6-8.) On December 29, 2010, Poulos entered into an agreement with the United States Post Office management in Pahrump, Nevada ("Management") to cut Plaintiff's hours. (Id. at 23:11-13.) From December 2010 through January 2011, Poulos secretly met with others to discuss removing Plaintiff from her position as shop steward because Plaintiff had begun to file grievances to address the favoritism and disparate treatment. (Id. at 23:14-24.)

On January 11, 2011, Plaintiff missed a grievance meeting in Las Vegas "due to [her] legs and feet locking up severely." (Id. at 6:8-10.) That same day, Poulos informed Management that Poulos planned to remove Plaintiff from her position as shop steward for the Local APWU. (Id. at 24:15-17.) Management sent Plaintiff home early. (Id. at 24:16.) The next day, Poulos told Plaintiff "after that stunt you pulled yesterday" she was removing Plaintiff as shop steward for the Local APWU and appointing herself to fill the position. (Id. at 6:10-12, 24:19-20.)

B. Plaintiff's Grievances

Plaintiff asked APWU officials to file dozens of grievances on her behalf. Poulos and other officials refused to investigate and file many of these grievances. (Id. at

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14:22-19:12.) Of the grievances filed, Poulos assured Plaintiff that all the grievances were valid, but Poulos later withdrew over forty of these grievances. (Id. at 20:2-22:20.) In one instance, on January 22, 2011, Poulos told Plaintiff that another employee wanted Poulos to withdraw Plaintiff's grievances regarding discrimination and retaliation, which Poulos did. (Id. at 26:3-19.) Poulos was openly hostile towards Plaintiff every time she requested that Poulos file a grievance on Plaintiff's behalf, and Poulos told Plaintiff that she was the only one having problems. (Id. at 11:6-8.) Poulos also refused to address Management's "continual and constant mental abuse/harassment" of Plaintiff. (Id. at 11:1-2.) On February 1, 2011, Plaintiff approached the alternate shop steward, Al Weyen ("Weyen"), to file multiple grievances but he refused to investigate and the time limits on the grievances lapsed. (Id. at 27:19-23.) Furthermore, the National APWU business agents James Scoggins ("Scoggins") and Gilbert Ybarra ("Ybarra") withdrew grievances, settled grievances in favor of Management, and advised Poulos to withdraw and not file grievances on Plaintiff's behalf. (Id. at 5:8-11, 10:9-11.)

Many of Plaintiff's grievances related to adverse scheduling. Plaintiff repeatedly filed grievances relating to the cutting of her hours and the "criminal delay" of mail. (See, e.g., id. at 15:8-20.) Poulos and Management scheduled Plaintiff to work irregular hours. (See, e.g., id. at 28:2-3.) During a discussion between Poulos and Plaintiff on March 23, 2011, Poulos stated that Plaintiff was restricted to working four hours a day, four days a week; Plaintiff disagreed. (Id. at 30:23-27.) Poulos also stated that it was better for Plaintiff's chronic fatigue and sleep apnea to start work later in the day, but Plaintiff argued that it was actually better for her condition if she started work earlier in the day. (Id. at 31:1-3.) Poulos indicated that Plaintiff's work restrictions kept changing based on Management's instructions to Poulos. (Id. at 30:28-31:1.)

Plaintiff also grieved the quality of the representation she received from Defendants and requested alternative representation. (See, e.g., id. at 36:1-2.) On April 21,

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2011, Management refused to sign Plaintiff's request for representation. (Id. at 33:1-2.) On May 2, 2011, the regional coordinator assigned Jerry Bevens ("Bevens"), President of APWU Local #761, as Plaintiff's new representative for disciplinary grievances. (Id. at 33:27-28, 34:24.)

C. Plaintiff's Discipline

On April 20, 2011, Poulos wrote a three-page statement to Management regarding Plaintiff. (Id. at 32:23-25.) Management used this letter in its decision to suspend Plaintiff for thirty days. (Id. at 32:25-26.) Plaintiff received her thirty day suspension letter on April 28, 2011. (Id. at 33:17-18.) On May 9, 2011, Plaintiff received a notice of removal. (Id. at 34:7-9.) On May 30, 2011, Bevens wrote a letter stating that Plaintiff had "no chance of surviving the discipline without outside representation" and that Poulos and Raydell Moore, ex-regional coordinator and technical advisor to the Local APWU, were refusing to cooperate with the investigation and were working with Blankenship and Management instead of the APWU. (Id. at 34:24-28.) On June 11, 2011, Plaintiff was removed from the Postal Service. (Id. at 35:10.) Plaintiff claims she was disciplined for requesting alternative representation from the APWU, time off, and schedule changes; Poulos's statements to Management; and Plaintiff's disabilities. (Id. at 33:1-5, 8:22-24, 32:23-26.)

After Plaintiff's removal, National APWU business agent Shirley Taylor ("Taylor") negotiated a settlement on Plaintiff's behalf wherein Plaintiff would be paid for four hours a day from June 25, 2011 through September, 2011. (Id. at 7:26-27.) Plaintiff asked Taylor if she would be removed, reinstated, or retired, and Taylor responded no. (Id. at 7:28-8:1.) Taylor told Plaintiff she could not return to work because Plaintiff had applied for disability retirement. (Id. at 8:12-13.) Taylor also told Plaintiff that her doctor stated Plaintiff could not work. (Id. at 8:15-16.) Plaintiff alleges that many employees apply for disability retirement and keep working until approved, her doctor did not state

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that she could not work, she could perform her job duties if properly accommodated, and Plaintiff's grievance had nothing to do with her restrictions but instead her grievance relates to Plaintiff's unjust removal. (Id. at 8:13-22.)

On August 10, 2011, Poulos and Danielle Bennett ("Bennett"), another shop steward, announced that they had agreed to new work restrictions for Plaintiff: fewer than forty hours a week, six days a week. (Id. at 2:4-5, 35:24-25.) Plaintiff requested Bennett file a grievance regarding the new restrictions, but Bennett told Plaintiff that she was not Plaintiff's shop steward. (Id. at 35:26-27.) Plaintiff asked Poulos to file a grievance regarding these restrictions, but Poulos refused as well. (Id. at 35:28-36:2.) In August 2011, National APWU business agent Scoggins agreed to the six-day a week assignment for Plaintiff. (Id. at 4:6-8, 36:5-6.) Plaintiff was not happy with this new assignment because it was contrary to a prior position taken by the National APWU and all but one person at the August union meeting viewed this new assignment as undesirable. (Id. at 4:6-12, 36:6-7.) The Postal Service reinstated Plaintiff on September 27, 2011. (Id. at 36:13.)

After Plaintiff's reinstatement, on October 18, 2011, a shop steward bullied Plaintiff, and in response, Plaintiff called threat assessment because she was crying uncontrollably. (Id. at 36:17-20.) On October 21, 2011, Plaintiff had a mental breakdown because she was unable to handle any more abuse. (Id. at 36:21.) From the end of October to the beginning of November 2011, Plaintiff took vacation time, sick leave, and leave under the Family and Medical Leave Act ("FMLA") to remove herself from the environment. (Id. at 36:22-23.)

D. History of the Present Action

On February 17, 2011, Plaintiff filed an Equal Employment Opportunity ("EEO") complaint...