Snay v. U.S. Postal Service

• Citation: 31 F.Supp.2d 92
• Decision Date: 23 November 1998
• Docket Number: No. 97-CV-1531 (LEK/DRH).,97-CV-1531 (LEK/DRH).
• Parties: Lynn SNAY, Plaintiff, v. U.S. POSTAL SERVICE and American Postal Workers Union Local 390, Defendants.
• Court: U.S. District Court — Northern District of New York

31 F.Supp.2d 92

Lynn SNAY, Plaintiff, v. U.S. POSTAL SERVICE and American Postal Workers Union Local 390, Defendants.

No. 97-CV-1531 (LEK/DRH).

United States District Court, N.D. New York.

November 23, 1998.

COPYRIGHT MATERIAL OMITTED

Office of Joseph P. McGovern, Joseph P. McGovern, of counsel, Albany, NY, for Lynn Snay.

U.S. Postal Service, Andrew L. Freeman, of counsel, Windsor, CT, for U.S. Postal Service.

O'Connell and Aronowitz, Bradley A. Sherman, of counsel, Albany, NY, for American Postal Workers Union Local 390.

MEMORANDUM — DECISION AND ORDER

KAHN, District Judge.

This action, brought against Plaintiff's former employer, the United States Postal Service ("USPS") and her former union, the American Postal Workers Union Local 390 ("the Union"), centers around USPS' refusal to have certain of Plaintiff's absences from work charged to the leave-time mandated by the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et al., Plaintiff's subsequent discharge for said absences, and the Union's alleged failure to properly grieve each action. Specifically, she alleges that the Union never filed her FMLA grievance and that the grievance based on her discharge (the "disciplinary grievance") was prematurely withdrawn. Plaintiff asserts that the Union thus breached its duty of fair representation ("DFR") and concealed its breach through fraudulent statements suggesting that the grievance process was ongoing after it had terminated.

Plaintiff brings three claims against USPS: breach of collective bargaining agreement ("CBA"), violation of the FMLA, and discrimination on the basis of gender and disability in violation of N.Y. Exec. Law ("Human Rights Law" or "HRL") § 296. She also brings claims against the Union for breach of the duty of fair representation and for disability and gender discrimination in violation of N.Y. HRL § 296. Defendants now move to dismiss the breach of CBA and breach of duty of fair representation claims pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds of untimeliness. They further move to dismiss the state law claims on the grounds of preemption.

I. Standard of Review

A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In assessing the sufficiency of a pleading, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir.1988), cert. denied sub nom., Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989). "[C]onsideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993).

II. Background

On or around November 5, 1990, Plaintiff was hired by USPS as a full-time postal clerk. Starting around July of 1995, Plaintiff began taking a number of absences as a result of severe depression and in order to take care of Christopher Marczewski ("Marczewski"), a terminally ill co-worker with whom she was having a relationship.

In July of 1995, Plaintiff twice met with Kristen LaClair ("LaClair"), Plaintiff's immediate supervisor, and requested that her absences be applied to the twelve-weeks of leave mandated under the FMLA. LaClair stated that "if plaintiff needed the time off under these circumstances to go ahead and take the time and not worry about it." Compl. ¶ 18.

On December 31, 1995, Marczewski died, and this event exacerbated Plaintiff's depression. As a result, she continued to take periodic absences. On each occasion when Plaintiff was absent from work, she contacted USPS and informed them of her absence.

1. The First Grievance

On February 29, 1996, Plaintiff received a letter from Peg Lynch ("Lynch"), Postal Service Time and Attendance Officer, informing her that her absences during February and March of 1996 and any subsequent absences would not be covered under the FMLA. On March 3, 1996, Plaintiff met with Barbara Epps ("Epps"), Union Shop Steward, and requested that a grievance be filed as a result of USPS' refusal to apply Plaintiff's absences to the FMLA. She then provided Epps with Lynch's letter and "other documentation" and Epps stated that she would file a grievance. Compl. ¶ 22. Plaintiff does not allege that she heard anything further on this matter. In September of 1996, when Plaintiff asked Epps to provide her with a copy of the FMLA grievance, Epps stated that she had the documentation at home. Later, however, Epps told the Plaintiff that she could not find the FMLA grievance nor "any information pertaining to it." Compl. ¶ 24. Plaintiff alleges that the grievance was never filed.

2. The Second Grievance

Around May 30, 1996, USPS served Plaintiff with a Notice of Removal, indicating that she would be discharged from service on July 6, 1996 for "failure to be regular in attendance." Compl. ¶ 25. The notice listed a number of absences since November 11, 1995 that were allegedly unscheduled.

Around May 30, 1996, Plaintiff met with Jim Walser ("Walser"), another Union Shop Steward, presented the Notice of Removal to him and requested the filing of a grievance. Around June 6, 1996, the Union filed a grievance disputing the disciplinary charge of unscheduled absences.

The grievance process, as established in the CBA, begins with a hearing between the employee's supervisor and either the employee, a Union representative or both. Compl. Exh. A. This is referred to as a "Step One" hearing. An adverse decision at this stage can be appealed to a "Step Two" hearing, which is decided by an outside official designated by USPS. Id. If the employee fails to obtain relief, she may appeal to "Step Three," which is addressed to the "Grievance/Arbitration Processing Center." Id. An employee also has a fourth step appeal which is not relevant to this action.

On June 10, 1996, a "Step One" grievance hearing was held, and Plaintiff's grievance was denied. It is not clear from the complaint whether or not Plaintiff was in attendance or whether she was informed of the outcome. The Union appealed the denial, and on June 21, 1996, a "Step Two" hearing was held. Plaintiff was not invited to attend this hearing or nor was she formally apprised of the results.

On July 6, 1996, Plaintiff's employment was suspended. On July 8, 1996, Plaintiff told Walser and Roger O'Rourke ("O'Rourke"), the president of the Union, that in order to get back to work, she would be willing to settle for a "last chance agreement," but Walser and O'Rourke discouraged this course of action, stating that "they could do better and that it was not necessary to jeopardize her career." Compl. ¶ 33.

In late July, Plaintiff spoke again to O'Rourke about the disciplinary grievance. Plaintiff suggested that O'Rourke raise the issue of the charges with Nunzio Hughes ("Hughes"), a Postal Service Supervisor.¹ O'Rourke stated that he would try to bring the issue up during "his next meeting in late July and August 1996." Compl. ¶ 35. In August, Plaintiff asked O'Rourke about the results of the meeting. O'Rourke responded that he had discussed Plaintiff's employment with Hughes and was waiting to back from him. Plaintiff suggested that she contact Hughes directly, but O'Rourke replied "`No, I'll try and if I have [to] I will set up [a] meeting [with] the two of us.'" Compl. ¶ 36.

In October of 1996, Plaintiff and her sister met with O'Rourke again, asking him about the status of the disciplinary grievance. He repeatedly stated that "`these things take time.'" Compl ¶ 37. He further told her that he had received part of the "Step Three" appeal back and was "`waiting for the other part.'" Id. On several occasions thereafter, Plaintiff telephoned the Union and was told by O'Rourke that "he had not heard anything regarding the grievance process and that these things take time." Compl. ¶ 38.

On March 13, 1997, Plaintiff received a letter from USPS terminating her employment. She contacted Diane Connelly ("Connelly"), an employee in the Postal Service Human Resources Department, and "questioned her termination in light of the pending grievance and arbitration process." Compl. ¶ 39. Connelly told her that she should speak to O'Rourke because she "may no longer be represented by the Union." Id. Plaintiff also heard a rumor from an unspecified source that the Union may not have filed the "Step Three" appeal.

After unsuccessfully trying to reach O'Rourke, Plaintiff attended a Union meeting in late March at which she met with Joe Harding ("Harding"), the Union's Vice-president. Plaintiff informed Harding that she had received a final termination notice and that O'Rourke was not returning her calls. Harding stated that he was not aware of her situation but that he would relay her message to O'Rourke. Two days later, Harding informed her that he had relayed the message. However, Plaintiff did not receive any response from O'Rourke.

Plaintiff then secured legal counsel, who first sent a letter on April 16, 1997 to a USPS employee inquiring about the status of the grievance. By letter dated April 28, the employee wrote back directing Plaintiff's attorney to contact O'Rourke. The attorney sent a letter to O'Rourke on May 6, 1997 and after receiving no response, sent a second letter on June 3, 1997. On or around June 21, 1997, O'Rourke wrote back, stating in part that "`[Snay's]...