McCollum v. Bolger
| Decision Date | 23 July 1986 |
| Docket Number | Nos. 85-8680,85-8681 and 85-8682,s. 85-8680 |
| Citation | 794 F.2d 602 |
| Parties | 122 L.R.R.M. (BNA) 3216, 41 Fair Empl.Prac.Cas. 507, 41 Empl. Prac. Dec. P 36,642 Charlene McCOLLUM, Plaintiff-Appellant, v. William F. BOLGER, et al., Defendants-Appellees. Tony D. McCOLLUM, Plaintiff-Appellant, v. William F. BOLGER, Postmaster General and National Rural Letter Carriers Association, Defendants-Appellees. Timothy D. McCOLLUM, Plaintiff-Appellant, v. William F. BOLGER, Postmaster General, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William D. Mallard, Jr., Atlanta, Ga., for plaintiffs-appellants.
Nina L. Hunt, Asst. U.S. Atty., Atlanta, Ga., Lori Joan Dym, Office of Labor Law, U.S. Postal Service, Eric J. Scharf, Washington, D.C., for defendants-appellees in 85-8680, 85-8681.
James T. Langford, Atlanta, Ga., for Nat. Rural Letter Carriers Ass'n.
Nina L. Hunt, AUSA, Asst. U.S. Atty., Larry D. Thompson, Atlanta, Ga., Lori Joan Dym, Office of Labor Law. U.S. Postal Service, Eric J. Scharf, Washington, D.C., for defendant-appellee in 85-8682.
Appeals from the United States District Court for the Northern District of Georgia.
Before CLARK, Circuit Judge, HENDERSON *, and WISDOM **, Senior Circuit Judges.
This is not the usual employment discrimination case, as one might think from the pleadings. The dispute here began and continued as a result of the personal animus the plaintiffs bore for a postmaster whom they blame for certain set-backs they suffered as postal employees.
The plaintiffs are three members of the McCollum family. The local defendant is George T. Howard, Postmaster of the Rome, Georgia, branch of the United States Postal Service (USPS). Although many issues have been presented by the parties, the primary issue on appeal is what constitutes a legitimate, nondiscriminatory reason for personnel action adverse to an employee. In addition to their animus against Howard, two of the plaintiffs did not get along well with their union representatives and they have appended unfair representation claims to their discrimination complaints.
The plaintiffs are Charlene McCollum and her two sons, Tony and Timothy McCollum. Charlene and Tony are rural letter carriers in Rome, Georgia. Timothy applied for employment as a rural letter carrier in Rome and was rejected. The plaintiffs have asserted claims against the Postmaster General of the United States and several other defendants. These claims may be grouped into three categories: constitutional claims, Title VII claims, and unfair representation claims. The district court dismissed one of these claims, granted the defendant's motion for summary judgment on another, and entered a judgment on the merits in favor of the defendants on the remaining claims. We AFFIRM.
Charlene McCollum began working at the Rome, Georgia Post Office as a substitute rural letter carrier in 1972. She became a regular rural carrier five years later. Tony McCollum went to work as a substitute carrier in 1977 and became a regular carrier in 1982. Timothy McCollum applied to be a substitute carrier in 1979. His application was denied. His sister, Vickie Dorsey, applied at the same time and was also rejected. The Postmaster in Rome during these years, George T. Howard, supervised the work of Charlene and Tony McCollum and reviewed Timothy McCollum's employment application.
There was evident hostility between the McCollum family and Postmaster Howard that began in the late 1970's and intensified over the years. In 1981 Charlene McCollum's route and another carrier's route were reduced in length because they were overburdened. Both carriers were then classified at a lower pay level. The other carrier was a male whose pay was slightly higher than Charlene McCollum's pay after the reclassification--approximately $15 more per week. In the same year her route was reduced, Charlene McCollum was issued a notice of removal from employment with the USPS. The grounds for her removal were insubordination and failure to follow instructions. The removal was later converted to a 78-day suspension. She filed a complaint of age and sex discrimination with the USPS. The bases of her complaint were the reduction of her route and her removal.
Tony McCollum represented his mother in pursuing her discrimination complaint. Also, he replaced his mother as the carrier for her route during her suspension. For the first few weeks he filled his mother's position, Tony worked six days a week, earning overtime pay on Saturdays. Postmaster Howard reduced Tony's work week to five days by assigning a substitute carrier to work on Wednesdays. This deprived Tony of overtime pay and of a two-day weekend. On the first Wednesday his substitute was scheduled to work, Tony appeared at the Post Office even though he had been informed by Howard not to do so. Postmaster Howard issued a letter of warning to Tony because of this incident. Tony McCollum filed a discrimination complaint with the USPS. He argued that the reduction in his work week and the issuance of a warning letter were based on sex discrimination and also were an unlawful reprisal for representing his mother in her discrimination action.
At the same time they were feuding with Postmaster Howard, Charlene and Tony McCollum did not get along with their union steward, John King. King was the local steward for the National Rural Letter Carriers Association (Union) from 1971 to 1981, when he was replaced as steward by John Chandler. The McCollums filed four grievance complaints in 1983--one by Charlene and three by Tony--that they assert were not properly handled by the Union. The reason they have proffered for the Union's failure to press their grievances is that John King maintained an influence over the Union and, because of his animosity toward the McCollums, he convinced John Chandler to drop their claims.
The many grievances against Postmaster Howard, the USPS, John King, and the Union, led the McCollums to filing lawsuits in the Northern District of Georgia in 1983. Charlene sued William Bolger, the Postmaster General, 1 for age and sex discrimination; the Union for breach of its duty of fair representation; and Postmaster Howard for violation of her First and Fifth Amendment rights. Tony McCollum sued Bolger for sex discrimination; the Union for breach of its duty of fair representation; and the USPS for violation of his First and Fifth Amendment rights. Timothy McCollum sued Bolger for sex discrimination.
The district court granted Postmaster Howard's motion for summary judgment on Charlene McCollum's action against him for alleged constitutional violations. The court dismissed Tony McCollum's complaint against the USPS for lack of subject matter jurisdiction because the government's sovereign immunity had not been waived. After a bench trial, the district court entered a judgment for the defendants on the remaining claims. The plaintiffs filed a timely notice of appeal. We affirm.
Charlene and Tony McCollum allege that their First and Fifth Amendment rights were violated during the course of their employment with the USPS. Charlene sued only her supervisor, Postmaster Howard, while Tony sued only the USPS. The district court never reached the merits of these claims.
The district court properly dismissed Charlene McCollum's constitutional tort action against Postmaster Howard. In Bush v. Lucas, 2 the Supreme Court held that a federal employee could not maintain a cause of action against his supervisor for violations of his First Amendment rights. 3 The Court declined to conclude that the Constitution supports a private cause of action in cases in which the plaintiff's claim for relief arises out of an employment relationship governed by procedural and substantive administrative provisions that establish an effective remedy for constitutional violations by the government. 4 The Bush analysis has been applied to Fifth Amendment claims as well as First Amendment claims. 5
The Bush decision was based on a careful analysis of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 6 and its progeny, 7 cases in which the Supreme Court held that the Constitution provided a cause of action for damages against federal officials. The Bivens line of cases confers "adequate power to award damages to the victim of a constitutional violation", except when Congress establishes an alternative remedy and indicates, either explicitly or implicitly, "that the Court's power should not be exercised". 8 Without such an indication from Congress, the federal courts must fashion damage remedies for constitutional violations as would any common law court, "paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation". 9
The special factor in Bush that counselled hesitation was the plaintiff's employment relationship with the federal government, which was governed by a comprehensive remedial scheme: the federal civil service laws. The Court deferred to the "considerable familiarity [of Congress] with balancing governmental efficiency and the rights of employees", and also the ability of Congress to "inform itself through factfinding procedures that are not available to the courts". 10
Unlike the plaintiff in Bush, Charlene McCollum is not protected by the civil service laws. Her employment status is, nonetheless, governed by a comprehensive procedural and substantive system that provides an adequate remedy. In creating the USPS, Congress expressly authorized "final and binding grievance provisions in Postal Service collective bargaining agreements, 39 U.S.C. Sec. 1206(b)". 11 The collective bargaining agreement that governs Charlene McCollum's employment with the USPS establishes a multi-step system for processing employee grievances. The plaintiff's union has a duty to represent...
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