Ollman v. Special Bd. of Adjustment No. 1063
| Decision Date | 03 June 2008 |
| Docket Number | Docket No. 05-1706-cv. |
| Citation | 527 F.3d 239 |
| Parties | Laigth A. OLLMAN, Plaintiff-Appellant, v. SPECIAL BOARD OF ADJUSTMENT NO. 1063, Brotherhood of Locomotive Engineers, Norfolk Southern Railway Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Lee G. Dunst, Gibson, Dunn & Crutcher LLP (Joshua Wilkenfeld, on the brief), New York, N.Y., for Plaintiff-Appellant.
William Kanter, Appellate Staff, Civil Division, U.S. Department of Justice (Peter D. Keisler, Terrance P. Flynn, Tara Leigh Grove, on the brief), Washington, D.C., for Defendant Appellee Special Board of Adjustment No. 1063.
Harold A. Ross, North Olmsted, OH, for Defendant-Appellee Brotherhood of Locomotive Engineers.
James S. Whitehead, Sidley Austin LLP, Chicago, IL, for Defendant-Appellee Norfolk Southern Railway Company.
Before: LEVAL, CALABRESI, and WESLEY, Circuit Judges.
This case arose after Plaintiff-Appellant Laigth Ollman ("Ollman"), a former employee of Norfolk Southern Railway Company ("NSRC"), was charged (a) with conducting himself in an "unbecoming" manner while off duty and (b) with taking unjustified sick leave. After an investigation, NSRC dismissed him from his job, and Special Board of Adjustment No. 1063 (the "Board") upheld that dismissal. His union, the Brotherhood of Locomotive Engineers ("BLE"), represented him in his disciplinary proceedings before NSRC, appealed his case to the Board, and presented his unsuccessful appeal at the ensuing Board hearing. Subsequently, Ollman, acting pro se, began this action in the United States District Court for the Western District of New York, alleging, inter alia: (1) that the Board, NSRC, and BLE (collectively, "Appellees") violated the Railway Labor Act (the "RLA"), 45 U.S.C. § 151 et seq., because they failed to give him notice of the Board proceedings, and (2) that BLE violated its duty of fair representation. The District Court (Siragusa, J.) dismissed Ollman's claims on summary judgment, and Ollman, pro se, filed a timely appeal.
A motions panel of our Court affirmed the District Court's dismissal of some of Ollman's claims and appointed counsel to brief the others. See Ollman v. Special Bd. of Adjustment No. 1063, No. 05-1706-cv (2d Cir. May 22, 2006) (unpublished order). Now, through counsel, Ollman asks us to reverse the District Court's grant of summary judgment to Appellees, to reinstate his duty of fair representation claim, and to remand this case to the District Court. For the reasons set forth below, we affirm the District Court's decision.
On January 4, 2000, NSRC sent a letter to Ollman, a locomotive engineer in its employ. The letter alleged that Ollman had engaged in off-duty conduct "unbecoming" an NSRC employee and that he had taken unjustified sick leave. Pursuant to the procedures established in the collective bargaining agreement between NSRC and BLE, NSRC summoned Ollman to an investigative hearing.
The formal investigation, which consisted of testimony by several witnesses and a statement on Ollman's behalf, took place on February 15, 2000. According to the transcript of the hearing, Ollman attended, and two BLE local chairmen, Robert H. Linsey and M.R. Price, acted as his representatives. Ollman was asked at the hearing whether he "desire[d] representation to assist [him]," and he replied, "From Bob Linsey and Mike Price."
On February 25, 2000, NSRC dismissed Ollman. NSRC denied Ollman's subsequent appeal. Then BLE, as provided for by the RLA, see 45 U.S.C. § 153 First (i), petitioned the local special board of adjustment to review Ollman's dismissal. The record does not establish whether BLE advised Ollman that it had taken this action on his behalf. BLE recovered a letter from its archives, dated June 14, 2000 and addressed from BLE Vice General Chairman Larry W. Sykes to Ollman, stating the date, time, and location of the hearing before the Board (the "Sykes letter"). Ollman denies ever receiving such a letter and raises questions as to its genuineness and admissibility.
On July 26, 2000, the Board convened to review Ollman's appeal. Ollman denies attending the hearing, and there is no record of his presence. BLE representatives prepared a submission on his behalf and argued his case. On October 17, 2000, the Board determined that, because NSRC had carried its burden of proof, Ollman was not entitled to relief.
On December 4, 2000, BLE sent Ollman a certified letter advising him of the Board's decision. The letter further stated that Ollman could seek judicial review of the proceedings but that none of the "limited circumstances" under which review was possible appeared to be present in his case. "Progression of any such appeal ... would be your responsibility," the letter continued, and such an appeal would have to be filed in United States District Court "within two years of the date this award was rendered (October 17, 2000)...." Ollman does not deny that he received this correspondence.
Acting pro se, Ollman filed a Verified Petition in the United States District Court for the Western District of New York on May 27, 2002. And on January 9, 2003, pursuant to the District Court's direction, Ollman filed an amended complaint. The complaint alleged that the Board, NSRC, and BLE had failed to provide him with notice of the Board proceeding, and that such notice was required by the provision of the RLA, which directs that the board give "due notice of all hearings to the employee." 45 U.S.C. § 153 First (j). It also alleged that BLE violated its duty of fair representation.1
Appellees filed motions to dismiss the amended complaint. The Board argued that, as an impartial adjudicatory tribunal, it was immune from suit. BLE claimed that it, also, was an improper party to the suit, and that Ollman's fair representation claim was barred by the applicable statute of limitations. BLE and NSRC also argued, relying on materials attached to BLE's motion, that Ollman had received whatever notice the RLA requires. These materials included a declaration by Linsey, a transcript of the February 15, 2000 proceeding, and a copy of the Sykes letter advising Ollman of the date, time, and place of the Board hearing.
By order dated January 15, 2004, the District Court converted Appellees' motions into motions for summary judgment, in light of the outside materials they incorporated. The Court also noted that the date on which Ollman was to have filed his response had passed. Accordingly, it ordered Ollman to file and serve his response by February 20, 2004. And because Ollman was acting pro se, it ordered the Clerk of Court to send Ollman both a copy of the Court's order and an Irby warning,2 see Irby v. N.Y. City Transit Auth., 262 F.3d 412, 414 (2d Cir.2001) ().
On March 26, 2004,3 Ollman filed a memorandum of law in opposition to the motions to dismiss, in which he claimed that he had never received the Sykes letter, nor had anyone at his home address, and that "BLE had no permission either implied or direct to peruse [sic] any claim" on his behalf. Ollman filed no documentary exhibits and no affidavits or other sworn statements.
On March 14, 2005, the District Court granted Appellees' motions for summary judgment and dismissed the case.
The District Court first addressed, and accepted, the Board's argument that it should not have been made a party to Ollman's petition for review of its award. Based on our decision in H.G. Skidmore v. Consolidated Rail Corp., 619 F.2d 157, 159 (2d Cir. 1979), cert. denied, 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 488 (1980), and the text of the RLA, see 45 U.S.C. § 153 First (q), Judge Siragusa concluded that the Board, as an impartial adjudicator, had no vested interest in defending its decision on appeal, and that its role was limited by the RLA to forwarding the record of the proceeding to the district court.
Next the District Court addressed BLE's arguments. The Court found that, like the Board, BLE is not a proper party to a petition for review of a Board decision. "[L]ogically," Judge Siragusa explained, "the Union's role at the adjustment board is as an advocate for the employee; thus, the Union is more analogous to an attorney in a lower court proceeding, than to a party." Ollman v. Special Bd. of Adjustment No. 1063, No. 02-CV-6469 CJS, 2005 WL 602386, at *6 (W.D.N.Y. Mar.14, 2005). Relying upon System Federation, No. 30 v. Braidwood, 284 F.Supp. 607, 610 (N.D.Ill. 1968), he also characterized the petition for review as a continuation of the proceedings before the Board, to which NSRC alone was a party defendant; it followed that a person seeking review of the Board's decision should name as respondent his opponent below. Judge Siragusa therefore concluded that, "[o]ther than the allegation that the Union breached its duty of fair representation, there is no basis for having it as a party in this proceeding." Id. at *7.
As for Ollman's fair representation claim, the Court held that it was barred by a six-month statute of limitations. According to the exhibits attached to BLE's motion, the Board denied Ollman's claim on October 17, 2000; Linsey received a copy of the award on December 4, 2000 and informed Ollman of it by certified mail on December 5, 2000. Ollman did not contest these facts. Therefore, when Ollman filed suit in federal court on September 12, 2002, he was well outside the limitations period.
Last, the District Court addressed NSRC's argument regarding Ollman's assertion that he was not given notice of the hearing before the Board. Unlike the Board and BLE, NSRC conceded that it was a proper party to this...
To continue reading
Request your trial
-
United Transp. Union v. National R.R. Passenger
... ... 6865 (the "Board"), a special" adjustment board constituted pursuant to the Railway Labor Act, 45 U.S.C. \xC2" ... R.R. Co., 353 U.S. 30, 39, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Ollman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245-46 (2d ... ...
- Atlas Air, Inc. v. Int'l Bhd. of Teamsters, August Term 2018
- Stallings v. Burlington N. Santa Fe Railway
- Payne v. Tri-State Careflight, LLC