UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
DERRICK CARRINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1360 (ESH)
)
UNITED STATES OF AMERICA, )
NATIONAL ASSOCIATION OF LETTER )
CARRIERS, AFL-CIO, )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff Derrick Carrington was employed by the United States Postal Service (“USPS”)
until his termination on December 22, 2009. (See Second Amended Complaint (“Compl.”) [ECF
No. 1] ¶ 3.) On December 29, 2009, plaintiff provided the removal letter to his union, the
National Association of Letter Carriers, AFL-CIO (the “Union”). On August 19, 2010, the
Union, acting on plaintiff’s behalf, and the USPS entered into a grievance settlement agreement
under which plaintiff would be reinstated to his position. (See id.) On August 21, 2010, the
USPS notified plaintiff, without elaboration, that it considered the settlement to be
“proce[dur]ally improper” and refused to reinstate plaintiff. (Id.)
Plaintiff, through the Union, then filed a grievance, alleging that the USPS had violated
the Collective Bargaining Agreement (“CBA”) by refusing to comply with the August 19, 2010
settlement. (See May 24, 2011 Arbitration Summary, Ex. D to Def. Mot. to Dismiss at 3.) An
arbitration hearing was held on April 27, 2011, resulting in a written decision on May 24, 2011,
in favor of the USPS. (See Def. Mot. at 4; Ex. D to Def. Mot. at 1.) On November 14, 2011,
plaintiff filed a “hybrid § 301/fair representation” suit against the USPS and the Union in the
Court of Federal Claims, asserting claims against the USPS for breach of the August 19, 2010
agreement and of the CBA, and against the Union for breach of its duty of fair representation.
(See Def. Mot. at 5.) The Court of Federal Claims found that it lacked subject matter jurisdiction
over the claims and transferred the case to this Court. (See Carrington v. United States, No. 11-
769 C (Fed. Cl. July 31, 2012), Ex. 1 to Pl. Opp. to Def. Mot. to Dismiss [ECF No. 11].)
Defendant now moves to dismiss the complaint, arguing first, that plaintiff’s claims
against the USPS are barred because plaintiff is bound by the May 24, 2011 arbitration award,
and second, that plaintiff’s hybrid claim is untimely because it was not filed within six months
after plaintiff knew or should have known of the final breakdown in the grievance process
regarding his removal from employment, as required by DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151 (1983). (See Def. Mot. at 2, 13.) With respect to the first argument, defendant
maintains that plaintiff could have filed suit in federal court to challenge the results of the first
grievance, but instead chose to commence a second grievance process, and therefore he cannot
now re-litigate issues that have already been decided in the USPS’s favor through binding
arbitration. (See Def. Reply at 7.) As for the time bar, defendant urges the Court not to
“permit[] [p]laintiff two bites of the apple” by tolling the statute of limitations for the duration of
the grievance proceedings, as plaintiff suggests. (See id; Pl. Opp. at 8.)
As defendant acknowledges, however, there are two exceptions to the general rule that
courts are to avoid disturbing the results of arbitration. (See Def. Mot. at 8.) The relevant
exception for present purposes is when an alleged breach of the union’s duty of fair
representation “seriously undermines the integrity of the arbitral process,” such that the results of
the arbitration award must be overturned. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554,
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567 (1976). Plaintiff’s allegations fall into that exception: he alleges that the Union’s failure to
file his grievance in timely fashion “resulted in an unfavorable ruling in arbitration” and absent
that failing, “[p]laintiff would have been reinstated in accordance with the Settlement
Agreement.” (Compl. ¶ 12.)
While generally “‘the employee must afford the union the opportunity to act on his
behalf’” through applicable grievance procedures established by labor contract, he may seek
remedy in federal court by bringing a “hybrid” suit that “merge[s] [the duty of fair
representation] with section 301 [of the Labor-Management Relations Act (“LMRA”)],” in
which he “allege[s] that both the[] employer and the[] union have interfered with [his] rights
under a collective bargaining agreement.” O’Hara v. District No.1-PCD, 56 F.3d 1514, 1520
(D.C. Cir. 1995) (quoting Republic Steel Corp. v. Maddox, 379 U.S. 650, 63 (1965) (citations
omitted)). As the D.C. Circuit has stated, an employee’s ability to bring suit directly against the
employer in federal court is limited to this circumstance, in order to “protect[] the finality of
arbitration awards and ensure[] that an employer will not twice be called to answer for the same
conduct once it has prevailed in the grievance process, unless the union has tainted that process
through a breach of its duty of fair representation.” Id. (emphasis added). Where such “taint”
is alleged, as it is here, the plaintiff is not precluded from seeking to overturn the arbitration
award in federal court.
In support of its time-bar argument, defendant contends that plaintiff is “attempt[ing] to
avoid the statute of limitations by conflating two separate grievance proceedings.” (Def. Mot. at
14.) Defendant argues that “once Plaintiff knew, or should have known, of the ‘final breakdown’
in the first grievance proceeding concerning his removal from employment, he should have filed
a hybrid Section 301 claim challenging Defendants’ conduct,” and that the “final breakdown”
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occurred “on August 20, 2010, when the Postal Service issued written notice to Plaintiff that it
was withdrawing from the settlement agreement.” (Id. at 14-15.) There are two problems with
this argument. First, assuming the veracity of all “well-pleaded factual allegations” contained in
the complaint, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), plaintiff was initially unaware that
the Union had failed to submit his grievance in timely fashion. It was not until after the May 24,
2011 arbitration ruling that he learned that a union representative had failed to perform his duties
adequately, including timely filing the grievance in plaintiff’s case. (See Compl. ¶¶ 6, 8.) Thus,
plaintiff had no basis for filing a hybrid suit until after May 24, 2011, since he did not know, and
there is no evidence that he should have known, that the union had breached its duty of fair
representation until that date.
Second, even if plaintiff knew or should have known about the “final breakdown” upon
USPS’s refusal to reinstate him, the Court finds that it would be appropriate to toll the statute of
limitations during the period when plaintiff was seeking relief through arbitration. Defendant’s
insistence that plaintiff’s allegations against the Union and the USPS only relate to the first
grievance process, while the second grievance process was an entirely separate matter, is
misguided. In her decision, the arbitrator explicitly noted:
The two questions presented in this case are (1) whether a grievance was
submitted within 14 days after the grievant received the Notice of Removal dated
December 2, 2009; and (2) whether or not, notwithstanding this submission or not
of a grievance did the Formal Step A Blitz Team have the authority to treat the
termination as timely grieved.
(Ex. D to Def. Mot. to Dismiss at 3.) It is clear that the second grievance process included a
close consideration of what had occurred during the first process. Where an employee chooses
to use private dispute mechanisms prior to filing suit in federal court, there is persuasive
authority suggesting that the statute of limitations period may be tolled at the discretion of the
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district court, as long as there is a possibility for the employee to obtain some relief from those
processes. See Robinson v. Central Brass Manufacturing Co., 987 F.2d 1235, 1242 (6th Cir.
1993). In this instance, plaintiff could have obtained from the arbitrator a finding that the
settlement agreement about his reinstatement was enforceable, so his pursuit of arbitration was
not futile. Thus, there is good reason for this Court to toll the statute of limitations, and
defendant’s motion to dismiss Counts III and IV will be denied.
Finally, defendant urges this Court to dismiss plaintiff’s claim premised on the Back Pay
Act, 5 U.S.C. § 5596, because the Act “does not create an independent basis” for review of a
challenged personnel action, but rather “only provides a remedial mechanism, which allows
complainant to sue for the recovery of lost wages and benefits following an administrative
determination that the complainant was subject to an improper or unauthorized personnel
action.” (Def. Mot. at 16-17.) However, while the arbitrator ruled in favor of the USPS, if the
Court were to overturn that ruling, plaintiff would arguably have a basis for seeking lost wages
and benefits based upon the Act. Defendant’s motion to dismiss Count II will therefore be
denied.
For the reasons stated above, the Court will deny Defendant’s Motion to Dismiss in its
entirety. A separate Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: February 25, 2013
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