Opinion
No. 96-4214-SAC.
October 2000.
MEMORANDUM AND ORDER
Plaintiffs brought this action before the Court asserting numerous federal statutory claims against the Defendants. Taylor filed a motion to sever along with an amended complaint. Subsequently, Taylor dropped all the claims except for her claim asserting that the Defendants breached their duty of fair representation pursuant to 39 U.S.C.S 401(1) and 1208(b)-(e) of the Postal Reorganization Act. The Defendants now move the Court for summary judgment on the basis of collateral estoppel, and, in the alternative, as a matter of law.
I. SUMMARY JUDGMENT STANDARDS
Summary judgment standards are determined under Rule 56 of the Federal Rules of Civil Procedure and is proper when no genuine issue of material fact exists and movant is entitled to judgment as a matter of law. A determination must be made "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947 (1987).
II. STATEMENT OF UNCONTROVERTED FACTS
Defendants' brief in support of its motion for summary judgment outlines the facts of the case at bar. Plaintiff's response indicates that some of Defendants' statements of fact are incorrect or misleading, but fails to specifically address any areas of dispute asserting "it is unnecessary to do so in order to effect the denial of the defendants' summary judgment motion . . ." (Plaintiff's response brief at 4). Plaintiff cites no authority to support this argument. In so doing, Plaintiff fails to comply with the Rule 56.1 of the Rules of Practice of the United States District Court for the District of Kansas, which indicates in part that:
The memorandum in opposition to the motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purposes of summary judgment unless specifically controverted by the statement of the opposing party. (emphasis added)
The Court, therefore, considers the following to be the uncontroverted facts:
1. Taylor was employed as a letter carrier by the United States Postal Service from 1987 to 1997 and worked at the post office in Hicrest Station, Kansas from April 1995 till her discharge in 1997.
2. She was a member of the National Association of Letter Carriers (hereinafter NALC) whose president was Vincent Sombrotto for the entire period relevant to this action. Taylor was specifically a member of Branch 10 of NACL whose president for the relevant period of the action was Gary Lister. Lister worked primarily as a sorter and letter carrier with only part-time duties in his capacity as president of Branch 10. NACL is a union designated to represent postal employees in matters of concerning the terms and conditions of their employment.
3. Taylor suffers from severe chronic post-traumatic stress disorder (PTSD), a condition resulting from numerous traumas she has suffered throughout her life. As a result of her condition she is angry much of the time and becomes easily enraged when she feels she has been wronged. She has difficulty controlling her anger, a tendency of speaking without thinking about implications, a tendency to engage in verbally aggressive behavior, a hostility toward men, and homicidal thoughts.
5. Taylor filed a grievance against the Postal Service in September of 1996 asserting that the Postal Service had refused to provide reasonable accommodation for her disability caused by PTSD. She sought accommodation providing that no Postal Service supervisor or manager speak to her regarding discipline or postal route complications without the presence of another employee or union representative as a witness.
6. The incident giving rise to the current action arose in December of 1996. Lister met with Taylor prior to a meeting scheduled to address Taylor's reasonable accommodation grievance to review the matter. A disagreement arose as to the manner of pursuing Taylor's grievance. According to Lister, Taylor became argumentative, called Lister a profane name, and then made a statement threatening to "blow all you mother ____ers away" if she did not receive her reasonable accommodation according to her request, and that she would "get even" if the postmaster obtained a disability pension.
7. In spite of this confrontation, Lister proceeded to present Taylor's grievance with the station manager and supervisor through whom he reached a settlement agreement according to Taylor's desired terms. Lister then reported the threats made by Taylor to the manager and supervisor pursuant to the Postal Service's current policy which was enacted to reduce the risk of incidences of violence in the Postal Service.
8. As a result of the reported threats, Taylor was placed on off-duty status pending further investigation. The investigation resulted in Taylor's termination from her employment with the Postal Service.
9. Taylor appealed her termination to the Merit Systems Protections Board (MSPB), a federal agency authorized to resolve claims by veterans improperly removed from employment with the Postal Service. See generally 5 U.S.C. § 1201, 1204(a), 7512(1), 7513(a), 7701. A hearing was held on May 12, 1997 by the MSPB to address Taylor's termination at which Taylor was represented by her own counsel and Lister appeared and testified and was cross-examined by Taylor's counsel. Subsequently, on September 17, 1997 a decision was rendered by an administrative judge who affirmed the Postal Service's decision to terminate Taylor from employment holding that the Postal Service had met its burden of proof in showing that Taylor's conduct warranted termination.
Taylor disputes, claiming her statement was a question, wherein she asked, "what do you want me to do? Tell my doctor that I am going to go 'postal' and blow everyone away?"
III. SUMMARY OF THE ARGUMENTS
Defendants assert they are entitled to summary judgment based on three main assertions. First, defendants contend that Sombrotto, personally, cannot be held liable as a matter of law for any breach of the duty of fair representation as the record contains no indication that Sombrotto was involved in the incident in any manner. Second, they assert that the doctrine of collateral estoppel should be applied to the case, as Taylor has, in essence, had her day in court and final judgment was rendered by the MSPB administrative judge. Finally, defendants assert that even if collateral estoppel is not applied, they are entitled to judgment as a matter of law because there was no violation of a duty of fair representation by Lister who was not acting in the capacity of union representative when he reported Taylor's threats to his superiors.IV. ANALYSIS
The Court will address each argument in turn.
A. Sombrotto's Liability
The Court first addresses the issue of whether Vincent Sombrotto can be held personally liable for Taylor's DFR claim. The Court holds that Sombrotto cannot be personally liable as a matter of law and that summary judgment is proper as to this argument. It has been long established that union officials are immune from personal liability for actions taken within the course of their duties. See Complete Auto Transit, Inc. v. Reis, 451 U.S. 401 (1981); Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962); Arnold v. Air Midwest, Inc., 100 F.3d 857 (10th Cir. 1996). According to the record, Sombrotto was not involved in any manner in the events with respect to his position as president of NACL nor personally. As a matter of law, he cannot be personally liable.
Plaintiff's response to defendants' motion for summary judgment fails to respond to this argument in any manner. Summary judgment is appropriate as to this claim pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, indicating that failure to specifically respond to the motion warrants granting summary judgement.
B. Collateral Estoppel
The Court next addresses the issue of whether Taylor has, in fact, had her day in court with regards to her present complaint, and thus whether her cause of action should be barred by the doctrine of collateral estoppel. Plaintiff mistakenly asserts that Kansas law governing collateral estoppel should be applied to the case at bar rather than federal law. Federal law is applied in the Tenth Circuit for issues of collateral estoppel when the prior proceeding in question was rendered in a federal jurisdiction proceeding. See Orjias v. Stevenson, 31 F.3d 995, 1010 (10th Cir. 1994). The MSPB is a federal agency and would fall under the bailiwick of federal jurisdiction. Additionally, Taylor's DFR claim is based on federal law, so federal law and not state law is appropriate. See Murdock v. Ute Indian Tribe, 975 F.2d 683, 687 (10th Cir. 1992); Walker v. Runyon, 979 F. Supp. 1363, 1370 (D.Kan. 1997).
Application of the doctrine of collateral estoppel is proper when four elements are established: (1) the issue being litigated is identical to the issue already litigated in the prior proceeding; (2) final judgment was granted in the prior proceeding based upon the merits; (3) that the parties are the same, or had privity to the parties involved in the previous litigation; and (4) the precluded party had an adequate opportunity to fully litigate the issue. United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992), cert. denied, 506 U.S. 1035 (1992); see also Coffey v. Dean Witter Reynolds, Inc., 961 F.2d 922, 925 (10th Cir. 1992). The Supreme Court further defined collateral estoppel indicating that, "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. (citing Ashe v. Swenson, 397 U.S. 436, 443 (1970)).
The Supreme Court has held that collateral estoppel will apply when the previous final judgment was rendered by an administrative agency acting in a judicial capacity. See United States v. Utah Constr. Mining Co., 384 U.S. 394, 422 (1966). The Court held that "when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." Id.; see also Long v. U.S. Dept. of Air Force, 751 F.2d 339, (10th Cir. 1984); Restatement (Second) of Judgments § 83(1) (1980) (". . . a valid and final adjudication determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court"). These res judicata standards have applied to MSPB final judgments in the Tenth Circuit as well as other jurisdictions. See, e.g., Long, 751 F.2d at 342-43; see also Thomas v. General Services Admin., 794 F.2d 661, (Fed. Cir. 1986) (issue preclusion applies to MSPB decisions where appropriate).
Applying the established doctrines governing collateral estoppel, the Court finds that the requirements are satisfied as to the issue of whether Taylor made the threats, and as to the duty of fair representation claim insofar as it directly relates to that issue. The specific issue of whether Taylor made the threats was addressed in the MSPB proceeding is the same issue on which the Plaintiff relies in the current action. The administrative judge rendered a final decision based on the merits as to whether Taylor did in fact make the threatening statements and that her termination was justified. The fact that the parties are not identical (though privity could be argued) is not relevant as no mutuality requirement exists under federal law when collateral estoppel is used as a defense. See United States v. Mendoza, 464 U.S. 154, 158-59 n. 4 (1984). Taylor had a full opportunity to litigate the issue in the prior proceeding where she was represented by counsel. Clearly all the required factors governing collateral estoppel are satisfied.
The administrative judge's decision indicates, however, that the scope of his decision "is restricted to the removal action under appeal and the affirmative defenses raised concerning that personnel action only." (emphasis added); Taylor v. U.S. Postal Service, Agency, (MSPB Initial Decision) at 2 (1997). The decision specifically indicates that certain issues, including whether NALC adequately represented her, would need to be decided in a different forum and would not be addressed. Id. As a result, collateral estoppel applies to the DFR claim only insofar as the plaintiff's claim rests on the argument that she did not make the threatening statements.
C. Breach of Duty of Fair Representation
The Court now addresses defendants' final argument for summary judgment, that Taylor's claim of a breach of duty of fair representation must fail as a matter of law. The Court finds that summary judgment should be granted as to this issue because Taylor has failed to meet the burden of proof in showing that there was a breach of duty by the union in fairly representing her during her grievance proceeding. The Court also finds that Lister was not acting in his capacity as union president, but as an employee of the Postal Service when he reported Taylor's statements.
In order to fully address this issue the scope of the union's duty must be analyzed. A union's duty of fair representation has been described as "tripartite." See Webb v. ABF Freight Systems, Inc., 155 F.3d 1230, 1240 (10th Cir. 1998) (citing Vaca v. Sipes, 386 U.S. 171, 190 (1967)). This concept was explained by the Supreme Court in Air Line Pilots Ass'n v. O'Neill, which indicated that a union's duty of fair representation is breached if its actions are "arbitrary, discriminatory, or in bad faith." 499 U.S. 65, 67 (1991) (quoting Vaca, 386 U.S. at 190). Other Supreme Court cases have likewise held that, a duty of fair representation claim arises when a union that represents an employee in a grievance or arbitration procedure acts in a 'discriminatory, dishonest, arbitrary, or perfunctory' fashion." Webb, 155 F.3d at 1239 (citing International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851 (1987)).
Arbitrariness, as defined in O'Neill, occurs with "the union's behavior is so far outside a 'wide range of reasonableness,' as to be irrational" with respect to both the factual and legal elements during the time of the union's actions. 499 U.S. at 67; see also Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). For a decision to be non-arbitrary it must be "(1) based upon relevant, permissible union factors which excludes the possibility of it being based upon motivations such as personal animosity or political favoritism; (2) a rational result of the consideration of these factors; and (3) inclusive of a fair and impartial consideration of the interests of all employees." Id. at 72. Taylor has not argued nor shown that the union acted in an arbitrary manner with regards to her grievance. Taylor requested a reasonable accommodation for her disability. The union properly represented her and obtained the desired accommodation.
Bad faith occurs when there is a showing of fraud, deceit, or dishonesty. Aguinaga v. United Food and Commercial Workers Intern. Union, 993 F.2d 1463, 1470 (10th Cir. 1993) (citing Mock v. T.G. Y. Stores Co., 971 F.2d 522, 531 (10th Cir. 1992)). Again, Taylor has not specifically asserted nor offered any evidence to establish that the union acted in bad faith. She indicated that she believes that some conspiracy existed between the union and the Postal Service to fabricate the threats in order to facilitate her termination, yet offers no support for this allegation.
Perfunctory behavior is defined as "characterized by routine or superficiality: done merely as a duty: CURSORY, MECHANICAL . . . lacking in interest or enthusiasm: APATHETIC, INDIFFERENT." See Webb, 155 F.3d at 1240 (citing Webster's Third New International Dictionary (Unabridged) 1678 (1986)). Mere negligent conduct or even careless or honest mistakes are not sufficient to hold a union liable for a DFR claim. See id. Taylor has not argued nor shown that the union acted in a perfunctory manner. In fact, the record indicates that the union did obtain the reasonable accommodation she requested in her grievance. Only after this proceeding were the threats reported to the Postal Service, and the union continued to its efforts on behalf of Taylor when the Postal Service made the decision to suspend her and eventually terminate her. Such conduct cannot be classified as perfunctory.
The Court further finds that Lister was not acting in his role as Branch 10 president when he reported the threats to his superiors in the Postal Service. A union official's duty to its members only applies when the official is acting in his or her representative role. See Breininger v. Sheet Metal Workers, 493 U.S. 67, 87-89 (1989). Lister completed his duty to Taylor when he presented her grievance, it was not until he had done so that he again became a Postal Service employee and reported the threats according to his perceived duty to his employer.
Taylor has failed to meet the burden of showing that the union acted arbitrarily, was dishonest, perfunctory or discriminatory, or acted in bad faith during its representation on her behalf. She rests her DFR claim upon the issue of whether she actually made the threatening statements, believing the union and the Postal Service, through some sinister motive, fabricated the threats to secure her termination. As already discussed, this issue is precluded by the doctrine of collateral estoppel. The magistrate judge found that she made the threats and that her termination was proper. She has not otherwise indicated that the union breached its duty of fair representation in any other manner outside the issue of the threats. Lister was not acting in his role as a union representative when reporting the threats. Sombrotto cannot be held personally liable. For the foregoing reasons the Court finds that summary judgment is proper, as a matter of law.
IT IS THEREFORE ORDERED that the Defendants' motion for summary judgment is sustained.