Thomas v. Nat'l Ass'n Letter Carriers, s. 99-3044

• Decision Date: 30 August 2000
• Docket Number: 99-3045,Nos. 99-3044,s. 99-3044
• Citation: 225 F.3d 1149
• Parties: (10th Cir. 2000) GERALD M. THOMAS, Plaintiff-Appellant, v. NATIONAL ASSOCIATION OF LETTER CARRIERS; MARVIN T. RUNYON, Postmaster General, United States Postal Service, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1149

225 F.3d 1149 (10th Cir. 2000)

GERALD M. THOMAS, Plaintiff-Appellant, v. NATIONAL ASSOCIATION OF LETTER CARRIERS; MARVIN T. RUNYON, Postmaster General, United States Postal Service, Defendants-Appellees.

Nos. 99-3044, 99-3045

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 30, 2000

Appeal from the United States District Court for the District of Kansas (D.C. No. 98-CV-1314-WEB) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Donald N. Peterson, II (Marc A. Powell with him on the brief), of Powell, Brewer, Gough & Withers, L.L.P., Wichita, Kansas, for Plaintiff-Appellant.

Peter Herman (Peter D. DeChiara with him on the brief), of Cohen, Weiss, and Simon, New York, New York, for Defendant-Appellee National Association of Letter Carriers.

David G. Karro (R. Andrew German with him on the brief), of the United States Postal Service, Washington, D.C., for Defendant-Appellee Marvin T. Runyon.

Before EBEL and HENRY, Circuit Judges, and WEINSHIENK,^* District Judge.

EBEL, Circuit Judge.

Before us are two appeals by Gerald M. Thomas ("Thomas"). The first is an appeal of the district court's order granting summary judgment to the United States Postal Service ("Postal Service") on Thomas's religious discrimination claim, and the second is an appeal of the district court's order granting a motion by the National Association of Letter Carriers ("NALC") to dismiss Thomas's state wrongful discharge and civil conspiracy claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I. BACKGROUND¹

Thomas was employed by the Postal Service from February 28, 1987 to May 31, 1996. From February 1987 to November 1988, Thomas worked in a part-time flex position; from November 1988 to December 1990, Thomas worked as a regular mail carrier at the Wassall post office in Wichita, Kansas; and from December 1990 until his termination on May 31, 1996, Thomas worked a bid route at the Corporate Hills Station in Wichita.

The National Collective Bargaining Agreement (CBA) between the Postal Service and the NALC requires the Local Union to regulate employees' days off pursuant to the Local Memorandum of Understanding (LMOU). By virtue of the LMOU, Thomas, along with the other 400-plus regular residential letter carriers, was placed on a rotating schedule that required him to work five Saturdays out of six. The rotating schedule was determined by a vote of the letter carriers, and Postal Service management had no authority to change the work schedule without union approval because doing so would violate the contractual commitment in the LMOU.

Toward the end of 1993, Thomas became a member of the Church of God. One of the central tenets of the Church of God is strict observance of the Sabbath, which, for that religion, falls on Saturdays. In January 1994, Thomas informed station manager Mark Kerschen of his religious beliefs and asked if something could be done to allow him to receive all Saturdays off from work. Thomas also brought the matter up with Roy Martin, the postmaster, and Tom Brasser, the labor relations specialist at the Postal Service. In addition, Thomas spoke with Union stewards David Willits and Larry Gunkel about the matter.

In response to Thomas's request, the Postal Service approved twenty-five of Thomas's twenty-nine requests to take annual leave on Saturdays in 1994. In 1995, the Postal Service approved twenty of Thomas's twenty-two requests to take annual leave on Saturdays. Postal Service management also allowed Thomas to trade with other letter carriers who voluntarily agreed to work for him on Saturdays. The Postal Service suggested to Thomas that he change crafts and bid on a position that would not require him to work on Saturdays, as another letter carrier who had requested accommodation due to similar religious beliefs had done.² The Postal Service, however, also told Thomas that because of the seniority system which gives the most senior employees first choice for job assignments, Thomas's lack of seniority would likely prevent him from successfully bidding for such a position. Thomas never bid for a position that would not require him to work on Saturdays. Roy Martin and Tom Brasser approached Gunkel, the President of the Local Union, to ask the Union to issue a waiver excusing Thomas from the LMOU-established Saturday work schedule. The Local Union refused to grant such a waiver.

Thomas suggested the following accommodation alternatives to enable him to observe his religious beliefs: (1) maintain his route as a letter carrier and receive Saturdays and Sundays off from work; (2) maintain his route as a letter carrier and have a substitute carry his route on Saturdays; (3) maintain his route as a letter carrier and have a part-time flexible or unassigned regular employee carry his route on Saturdays; (4) maintain his route as a letter carrier with all Saturdays off from work and be available to work on Sunday; and (5) maintain his route as a letter carrier, but only work four days a week.

The Local Union would not agree to any of Thomas's suggested accommodations on the theory that each would have permanently excused Thomas from working on Saturdays, thus each violated the LMOU. The Postal Service could not alter the LMOU on its own. Gunkel informed Thomas directly that it was not possible to grant him an exemption from the rotating schedule established by the LMOU so that he would not have to work on Saturdays.

Thomas refused to work on Saturdays, and was absent without leave several times when he was unable to use his leave. As a result, he received the following progressive discipline: (1) a seven-day suspension on 11/2/94 that was subsequently reduced to a letter of warning; (2) a fourteen-day suspension on 11/23/94 that was subsequently reduced to a seven-day suspension; (3) a fourteen-day suspension on 12/6/94; (4) a Notice of Removal on 1/9/95 that was held in abeyance provided Thomas was not absent without leave again; (5) a Notice of Removal on 6/16/95 which resulted in Thomas being removed; however his work assignment was held pending further grievance/arbitration procedures, which ultimately resulted in a pre-arbitration settlement on 1/5/96 that allowed Thomas to return to work with the understanding that he would work his bid assignment as posted; and (6) removal from the Postal Service on 4/26/96 after Thomas was absent without leave again.³

Thomas filed suit against Marvin Runyon, the Postmaster General of the Postal Service, in federal district court in July, 1997, alleging that he was unlawfully discharged because of his religious beliefs. Approximately one year later, Thomas also filed suit against the Postal Service and the NALC in Kansas state court, alleging wrongful discharge and civil conspiracy in violation of state law.⁴ The latter case was subsequently removed to federal court.

The district court granted the Postal Service's motion for summary judgment on the religious discrimination claim on January 5, 1999. Thomas v. Runyon, 36 F. Supp.2d 1284, 1289 (D. Kan. 1999). Thomas now appeals that ruling. In a separate opinion issued the same day, the district court granted the Postal Service and NALC's motions to dismiss the wrongful discharge and civil conspiracy claims pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Thomas v. National Ass'n of Letter Carriers, 40 F. Supp.2d 1244, 1249 (D. Kan. 1999). The court granted the Postal Service's motion to dismiss on the ground that Title VII preempted Thomas's state law claims against the Postal Service. In granting NALC's motion to dismiss, the court found that Thomas's claims against NALC constituted a claim for breach of the duty of fair representation, which was preempted by federal labor law and barred by the applicable six-month statute of limitations. The district court further held that even if the claims were not preempted, the motion to dismiss should still be granted because the complaint failed to state a claim upon which relief could be granted. Thomas does not appeal the district court's order granting the Postal Service's motion to dismiss, but he does appeal the order granting NALC's motion to dismiss.

II. DISCUSSION

A. Religious Discrimination Claim

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. If there is no genuine issue of material fact in dispute, we determine whether the district court correctly applied the substantive law.

Green v. Barrett, 174 F.3d 1136, 1139 (10th Cir. 1999) (internal citations omitted).

Title VII makes it "an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" is defined to include only those "aspects of religious observance and practice" that an employer is able to "reasonably accommodate . . . without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). Title VII imposes an obligation on the employer "to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business." 29 C.F.R. § 1605.2(b)(1), (2) (1999) (citing TWA v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2271-72, 53 L.Ed.2d 113...