Opinion
CASE NUMBER: 00-75066
August 9, 2001
OPINION AND ORDER GRANTING DEFENDANT WILLIAM HENDERSON'S MOTION FOR SUMMARY JUDGMENT AND DENYING AMERICAN POSTAL WORKERS UNION'S MOTION TO DISMISS
I. Introduction
Pending before the Court are two motions: the Motion for Summary Judgment filed by Defendant William Henderson, Postmaster General of the United States Postal Service ("USPS") and the Motion to Dismiss filed by Defendant American Postal Workers Union, Local 480-481 ("APWU"). For the reasons that follow, the Court will grant the USPS's Motion with respect to both Plaintiff's claims against it and against the APWU. The Court will deny the APWU's Motion to Dismiss.
Plaintiff consented to the dismissal of her tort claims (Plt's Br. at ii) and, therefore, this Opinion and Order will not address those claims.
II. Analysis
The USPS's Motion is filed pursuant to Fed.R.Civ.P. 56. Under Rule 56(c). summary judgment may be granted "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 judgment as a matter of law." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995). The court must view the evidence in the light most favorable to the nonmoving party and it must also draw all reasonable inferences in the nonmoving party's favor. Cox v. Kentucky Dept of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
The APWU's Motion is filed pursuant to Fed.R.Civ.P. 12(b)(6). When reviewing a Rule 12(b)(6) motion, the trial court "must construe the complaint liberally in the plaintiffs favor and accept as true all factual allegations and permissible inferences therein." Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). The court should deny a Rule 12(b)(6) motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id.
A.
The USPS's argues that the Court should grant summary judgment of Plaintiff's discrimination claim. In support the USPS cites the requirement than an aggrieved seek pre-complaint EEO counseling within 45 days of the discriminatory act at issue:
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate late contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.29 C.F.R. § 1614.105.
In this case, both Plaintiff and the USPS cite Plaintiff's October 29, 1999 termination as triggering the 45 day limitation period. Thus, the 45 day period during which Plaintiff was required to seek pre-complaint counseling from an EEO counselor expired on December 13, 1999 and her initial contact with the EEO on January 4, 2000 was untimely.
Notwithstanding, Plaintiff argues that the Court should equitably toil her § 1614.105(a)(1) deadline. In considering Plaintiff's argument, the Court is mindful of the infrequent application of the equitable toiling doctrine:
Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (citations omitted). Also see Graham-Humphreys v. Memphis Brooks Museum of Ad, Inc., 209 F.3d 552, 560-561 (6th Cir. 2000)("Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.")
Plaintiff argues that equitable tolling should be applied here because she lacked notice of the 45 day contact requirement. However, it is undisputed that EEO posters were placed at several locations throughout the building in which Plaintiff worked that advised USPS employees of the need to seek EEO counseling "[w]ithin 45 calender days of the date of the alleged discriminatory act . . . ( USPS's Br, Purcell Declaration, Ex. E). Plaintiff notes that she had not been working in that facility for roughly six months prior to her termination, Notwithstanding, she also admitted to having initiated an informal EEO complaint in October 1998.
Plaintiff further states that she was misled by a pamphlet she received that stated that an EEOC charge must be filed within 180 days from the date of the alleged violation. She stated that she was unaware that there were different rules for USPS employees. In light of Plaintiff's ten years of experience with the USPS prior to her termination, and in light of her initiation of an informal EEO complaint the year prior to her termination, her lack of awareness that the USPS has its own EEO rules is not easily understood. Further, the pamphlet should have put Plaintiff on notice that there are special rules for the USPS and other federal agencies. It emphasizes, "For more information on how to file a complaint of discrimination in federal employment, contact the EEO office of the federal agency where the alleged discrimination occurred." (Plt's Br., Ex. E, emphasis in original). Plaintiff apparently did not heed that warning.
In her brief Plaintiff states that she received the pamphlet after sending a letter to Congressman John Conyers' office seeking assistance. (Plt's Br. at 4). However, it does not appear that Plaintiff received the pamphlet from Congressman Conyers' office. In a March 29, 2000 letter Plaintiff wrote to explain her late filing, she said that an attorney from Congressman Conyers' office told her to file her charge at the downtown EEOC office, and that that is where she received the pamphlet. ( USFS's Br., Purcell Declaration, Ex. F).
It is, additionally, noteworthy that the reason Plaintiff was not at her place of employment for roughly six months prior to her termination is that in response to an allegedly discriminatory incident on May 16, 1999, Plaintiff did not return to work. Plaintiff had ample time following the May 16 incident to re-familiarize herself with the process for initiating EEO proceedings.
In a March 29, 2000 letter explaining her fate filing, Plaintiff states that her initial inaction was due to her discouragement with the lack of assistance she was receiving from others. Later, she was inspired during a school lecture to contact Congressman John Conyers' office in November 1999. Plaintiff then waited for a response from Congressman Conyers' office, which did not come until December 1999, before taking any steps to initiate an EEO complaint. (USPS's Purcell Declaration. Ex. E). Unfortunately for Plaintiff, her belated inspiration to address the alleged discrimination and her decision to await a response from Congressman Conyers' office before taking any action are not the type of "compelling equitable considerations" that would allow this Court to apply the doctrine of equitable tolling. Graham-Humphrey at 561.
For all of these reasons, Plaintiff's failure to make her EEO contact within the 45 day limit appears to have arisen from Plaintiff's lack of due diligence rather than from circumstances beyond her control. Accordingly, the Court will grant the USPS's Motion for Summary Judgment.
B.
The sole ground the APWU advances in support of its Motion to Dismiss is that Plaintiff's breach of duty of fair representation claim is barred by the six-month period of limitation for actions filed pursuant to § 301 of the Labor Managment Relations Act, 29 U.S.C. § 185. In its Motion for Summary Judgment, the USPS also claims that Plaintiff's § 301 claim is time barred. All parties agree that the six-month limitation period is mandated by DelCostello v. International Broth. of Teamsters, 462 U.S. 151 (1983). The only question in dispute is the accrual date of that period of limitation.
In Garrish v. United Auto., Aerospace and Agricultural Implement Workers of America, 133 F. Supp.2d 959, 965 (E.D.Mich. 2001), the court addressed the accrual of the six-month period for a hybrid suit such as this one.
That six-month period accrues when a plaintiff knows, or should know through the exercise of due diligence, of the acts that give rise to the cause of action. Wilson v. International Bhd. of Teamsters, 83 F.3d 747, 757 (6th Cir. 1996). Because the cause of action for a hybrid § 301 claim involves both a demonstration of the union's breach of the duty of fair representation and the employer's violation of the collective bargaining agreement, the statute of limitations for that claim does not begin to accrue until a plaintiff knows, or should know through the exercise of due diligence, of acts that would give rise to the inference that both of those elements exist.
A hybrid claim under § 301 has two elements: (1) that the employer violated the terms of a collective-bargaining agreement and (2) that the union breached its duty of fair representation." Carrish at 964. Since all parties agree that the six-month period mandated by DelCostello applies to this case, the Court infers that they also agree that Plaintiff alleges a hybrid claim.
(Emphasis in original).
The APWU alleges that Plaintiff's Complaint involves only incidents that occurred on May 16, 1999 and that her six-month period of limitation, therefore, accrued on that date. The Court disagrees. Plaintiff's Complaint alleges that offending actions of the USPS occurred on May 16, but that the APWU's inaction occurred after that date:
Following the incidents of May 16, 1999 (aforementioned), I made numerous attempts to file grievances on grievable acts inflicted by management and/or personnel. I notified and made my desire to file the grievances known to the union vice president Lucy Morton. The union neglected to properly represent me or grieve the incidents.
(Plt's Complaint, ¶ 6).
Thus, when considering only Plaintiffs Complaint, it is not clear when her claim against the APWU accrued. Accordingly, dismissal of Plaintiff's Complaint pursuant to Rule 12(b)(6) is not warranted. Gazette at 1064. Nonetheless, the Court finds that summary judgment pursuant to Rule 56 is required.
In its Motion for Summary Judgment, the USPS refers the Court to Plaintiff's January 10, 2000 Information for Precomplaint Counseling form. ( USPS Br, Purcell Declaration, Ex. A). There, Plaintiff stated that the discriminatory conduct she suffered included the APWU "[r]efusing/neglecting to file grievances on incident of 5-16-99 . . ." ( Id.) Consequently, there is no genuine dispute that, by January 2000, Plaintiff knew of the alleged inaction on the part of the APWU that she complains of in her November 17, 2000 Complaint; there is no genuine dispute that Plaintiff's Complaint was filed untimely.
III. ORDER
For the foregoing reasons, THE COURT HEREBY GRANTS Defendant William Henderson's Motion for Summary Judgment [document 11]. THE COURT FURTHER DENIES Defendant American Postal Workers Union's Motion to Dismiss [documents 5 6], but the granting of Defendant William Henderson's Motion for Summary Judgment will result in the Court granting judgment in favor of the APWU as well.