Petrella v. Communications Workers of America

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 9, 2007
No. 06-16527 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-14005-CV-JEM

ROY PETRELLA,

Plaintiff-Appellant,

versus

COMMUNICATIONS WORKERS OF
AMERICA AFL-CIO LOCAL 3107,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Roy Petrella appeals the summary judgment against his complaint that the
Communications Workers of America breached its duty of fair representation when

it declined to pursue the arbitration of Petrella’s discharge grievance against

BellSouth. See 29 U.S.C. § 185. Because Petrella’s action was time-barred by the

six-month statute of limitations, we affirm.

We review a summary judgment de novo, applying the same legal standard

used by the district court. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co.,

483 F.3d 1265, 1268 (11th Cir. 2007). Summary judgment is appropriate when

“there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

A limitations period of six months applies to Petrella’s complaint. See

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169–172, 103 S. Ct. 2281,

2293–94 (1983). The timeliness of the complaint is “measured from the date on

which the employee knew or should have known of the union’s final action.”

Proudfoot v. Seafarer’s Int’l Union, 779 F.2d 1558, 1559 (11th Cir. 1986). “Final

action” is defined as “the point where the grievance procedure was exhausted or

otherwise broke down to the employee’s disadvantage.” Id.

Petrella knew or should have known that the grievance procedure had

broken down to his disadvantage more than six months before he commenced his

action against CWA in January 2006. In a letter dated December 9, 2003, a

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representative of CWA informed Petrella that the union had processed his

grievance, believed that there was “very little chance to win in arbitration,” and

would close the grievance if no internal appeal was pursued. After his appeals to

the vice-president and president of CWA were denied, Petrella abandoned the

internal appeal process. When Petrella’s last appeal to CWA was rejected on April

15, 2004, and he failed to appeal the decision, Petrella knew or should have known

that the grievance procedure had been exhausted or otherwise broken down to his

disadvantage. Because Petrella’s complaint was filed more than six months later,

the district court correctly concluded that the complaint was time-barred.

The summary judgment against Petrella’s complaint is

AFFIRMED.

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