Newby v. Potter
| Decision Date | 22 March 2007 |
| Docket Number | No. 3:05CV7385.,3:05CV7385. |
| Parties | Kevin NEWBY, Plaintiff, v. John E. POTTER, et. al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Francis J. Landry, Wasserman, Bryan, Landry & Honold, Toledo, OH, for Plaintiff.
Holly Taft Sydlow, Office of the U.S. Attorney, Toledo, OH, Anton G. Hajjar, Peter J. Leff, O'Donnell, Schwartz & Anderson, Washington, DC, Joyce Goldstein, Goldstein & O'Connor, Cleveland, OH, for Defendants.
Opinion
Plaintiff Kevin Newby ("plaintiff"), seeking an order to vacate or modify an arbitrator's decision, brings a hybrid action under 39 U.S.C. § 1208(b) against defendants, John E. Potter, Postmaster General and the United States Postal Service (collectively referred to as the "Postal Service") and the American Postal Workers Union, AFL-CIO, and the Toledo Area Local, American Postal Workers Union, AFL-CIO, (collectively referred to as the "Union"). Section 1208(b) is the Postal Service analogue to § 301 of the Labor — Management Relations Act, 29 U.S.C. § 185(a).
Pending are defendants' motions for summary judgment pursuant to Fed. R.Civ.P. 56. For the following reasons, defendants' motions shall be granted.
Plaintiff Kevin Newby, formerly employed as a mail processing clerk in Toledo, Ohio, appeals from an arbitrator's dismissal of a grievance Med on his behalf by the Union against the Postal Service. Plaintiff was discharged from the Postal Service on October 22, 2003. On November 5, 2003, the Union initiated a series of grievances on Newby's behalf that ended in arbitration. On July 8, 2005, the arbitrator dismissed the grievance as untimely appealed by the Union and, thus, inarbitrable.
Plaintiff brings a hybrid claim against the Postal Service and Union to vacate or modify the arbitrator's decision. Pursuant to the Postal Reorganization Act, 39 U.S.C. § 1208(b), plaintiff sues the Postal Service for terminating him without "just cause" in violation of the collective bargaining agreement ("CBA") between the Postal Service and Union, and sues the Union for breach of the duty of fair representation. Plaintiff asks this court to reinstate him in his former position with back pay and/or money damages or, alternatively, to order a new arbitration before another arbitrator.
Plaintiff began working for the Postal Service in 1995. In October, 2000, plaintiff pled guilty to attempted forgery and theft (convictions unrelated to plaintiffs employment) and was sentenced to five years community control and probation. Subsequently, plaintiff failed to appear at a community control violation hearing and was, consequently, arrested on a bench warrant. On August 18, 2003, following a hearing in which plaintiff admitted having violated the terms of his community parole, the court revoked his community control and probation and sentenced plaintiff to eleven months in prison, effective immediately.
On August 20, 2003, plaintiff wrote his station manager, Jim. Hostetler, requesting an eleven-month leave of absence ("LOA") to accommodate his incarceration. The Postal Service conducted an investigation whereby Hostetler obtained plaintiffs court records, including his guilty plea to charges of attempted forgery and theft and admitted probation violation.
In a letter dated October 7, 2003, Hostetler denied plaintiffs request for a LOA and notified him that his status was "Absent Without Leave" ("AWOL"). Hostetler gave plaintiff an October 20, 2003, deadline to respond to the charge before the Postal Service would make a final decision about termination. Plaintiff failed to timely respond to Hostetler's letter. On October 22, 2003, the Postal Service issued Newby a notice of removal ("NOR") based on a charge of "Unsatisfactory Attendance/AWOL due to Incarceration." The NOR also cited violations of behavior and conduct in reference to plaintiffs underlying criminal convictions.
On November 5, 2003, the Union filed a Step One grievance, the first of a three-step grievance process, to challenge plaintiffs removal from the Postal Service. On November 11, 2003, following an adverse Step One decision, the Union appealed the grievance to Step Two. After receiving an adverse Step Two decision on March 4, 2004, President of the Local, Kenny Terry, forwarded the grievance to the Local's Step Two designee for direct appeal to arbitration.
The Local's Step Two designee missed the thirty-day time limit to appeal the Step Two grievance to arbitration. In its brief, the Union attributes the missed deadline to the designee's "extreme stress" and "medical condition," and notes in its reply brief that these problems "ultimately led to [that person's] removal as an officer in the Local and [that person's] termination from the Postal Service."
In September, 2004, five months after the deadline, Terry realized that plaintiffs grievance had not been timely appealed to arbitration. Union representatives initiated several telephone conversations with Postal Service employee Barbara Petrusky in an unsuccessful attempt to obtain her written agreement to extend the deadline to appeal plaintiffs grievance to arbitration. The record indicates Petrusky, who lacked authority to extend the deadline, never agreed to an extension. Nonetheless, on September 20, 2004, the Union filed an appeal to arbitration. Union representatives later testified at the subsequent arbitration that they believed Petrusky had verbally, agreed to an extension.
Arbitration occurred before Arbitrator Margo Newman on April 21, 2005. The parties stipulated the issues to be whether:
1) the grievance was arbitrable due to timeliness;
2) just cause existed to terminate the plaintiff on November 28, 2003, and, if not, what was the appropriate remedy.
At the arbitration hearing, the parties examined and cross-examined witnesses, presented documentary evidence, and argued their positions. Plaintiff attended the hearing. Additionally, Arbitrator Newman allowed the Union to file supplemental cases concerning the issue, raised for the first time at arbitration, of arbitrability.
In her July 8, 2005 decision, the arbitrator held that, under Articles 15.5.A.6 and 15.4B of the CBA, plaintiffs grievance was "untimely appealed to arbitration, making it inarbitrable." She noted that, while "seemingly harsh in a particular case, the parties have specifically agreed that forfeiture of a grievance is the appropriate consequence for untimely processing by the Union."
The opinion accompanying the award included a seven-page discussion of two issues: 1) "whether the Union received a verbal agreement from Petrusky to extend the deadline for filing an appeal to arbitration:" and 2) "whether such agreement, if received, would be valid under the language of the [CBA]." In the last sentence of her discussion, Arbitrator Newman addressed the merits of plaintiffs grievance:
I feel obliged to note, in passing, that since the parties fully litigated the merits of this case, it is my assessment that the grievance, even if timely, would not have been successful in overturning grievant's removal on either due process grounds or on the merits.
Plaintiff filed his instant complaint to vacate or modify the arbitration award on October 3, 2005. Defendants Postal Service and Union have filed counter-motions for summary judgment.
Summary judgment must be entered "against a party who fails to make a showing Sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 119 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed. R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A judge's function at the summary judgment stage is not, however, "to weigh the evidence and determine the truth of the matter." Id. at 249, 106 S.Ct. 2505. Summary judgment is proper only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ P. 56(c).
A. Hybrid 1208(b) Claim
Pursuant to 39 U.S.C. § 1208(b) of the Postal Reorganization Act, district courts have jurisdiction over "[s]uits for violation of contracts between the Postal Service and a labor organization representing the Postal Service employees ...." Because this section is the analogue of § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), § 301 is consistently applied to...
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