Appellate Case: 21-7009 Document: 010110698664 Date Filed: 06/17/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 17, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MARY F. CUMMINGS,
Plaintiff - Appellant,
v. No. 21-7009
(D.C. No. 6:19-CV-00367-RAW)
AMERICAN POSTAL WORKER’S (E.D. Okla.)
UNION, Local 7, AFL-CIO,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Mary F. Cummings appeals pro se from the district court’s grant of summary
judgment to the American Postal Worker’s Union (Union) in her suit alleging race
and age discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and the
Age Discrimination and Employment Act (ADEA), 29 U.S.C. § 623, respectively, for
failing to bring grievances against her former employer, the United States Postal
Service (USPS). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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I
This is the second appeal to come before this court relating to Cummings’
termination by USPS. We recently affirmed the grant of summary judgment to USPS
on Cummings’ claims that USPS breached its collective bargaining agreement (CBA)
with the Union and discriminated against her based on her race and age. See
Cummings v. United States Postal Serv., No. 20-7066, 2021 WL 4592271, at *1, *4
(10th Cir. Oct. 6, 2021). We held that “[b]ecause Ms. Cummings was a probationary
employee, USPS did not breach the CBA by terminating her employment or by
informing her that she was not eligible to file a grievance regarding the termination.”
Id. at *4. We also concluded that she failed to exhaust her race discrimination claim,
see id., and failed to establish a prima facie case or pretext to support her claim of
age discrimination, see id. at *5-6.
In this case, Cummings claimed the Union discriminated against her based on
her race and age by refusing to pursue grievances on her behalf against USPS.
Cummings is a female Native American who is over the age of 50. She worked as a
temporary Postal Support Employee (PSE) for one full 360-day term and was rehired
for a second term in January 2016. Before completing her second term, she
converted to a Career position on May 14, and was terminated on July 25, 2016. Her
termination letter indicated she was terminated for failing to meet job expectations
and that, as a probationary employee, she did not have access to the CBA’s grievance
procedure.
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Under the CBA, “[t]he probationary period for a new employee shall be ninety
(90) calendar days,” during which “probationary employees shall not be permitted
access to the grievance procedure.” R., vol. 2 at 40. The CBA does not appear to
define “new” employee for purposes of the probationary period, but a “Questions and
Answers” document relating to a 2014 Memorandum of Understanding (2014 MOU)
between USPS and the Union provided that if a PSE converted to a Career position
before serving two full terms, she was required to serve a new 90-day probationary
period. Id. at 34, 68, 70-71. However, four days after Cummings was terminated, on
July 29, 2016, the Union and USPS executed a new Memorandum of Understanding
(2016 MOU) and a related “Questions and Answers” document, which provided that
PSEs who converted to a Career position after completing one full term would no
longer be required to serve a probationary period. Id. at 73, 76.
After she was fired, Cummings contacted the local Union president, Andy
Rackley, to pursue filing a grievance against USPS. Rackley knew probationary
employees did not have access to the grievance procedure under the CBA, but he
called the Union’s National Business Agent, Christine Pruitt, whose job it was to
advise local Union presidents. Pruitt confirmed to Rackley that it would have been
“futile to file a grievance over Ms. Cummings’ termination because [she] was still in
her probationary period and did not have access to the grievance procedure under the
contract.” Id. at 6. Having confirmed that Cummings’ probationary status precluded
her from filing a grievance, Rackley called her back and told her there was nothing
more he could do to help.
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In August 2016, Cummings emailed Rackley nine grievances regarding her
termination. Rackley called Cummings and told her again he could not file the
grievances under the CBA because she was still in her probationary period when she
was terminated. Nevertheless, Cummings attempted to file two more grievances, one
on November 15, 2016, and another on April 16, 2018, both claiming USPS failed to
rehire her. Rackley did not remember receiving these grievances, but he remembered
speaking to Cummings about not being recalled to an open position and telling her
once again there was nothing he could do for her.
Meanwhile, on September 14, 2016, Cummings filed an unfair labor practice
charge with the National Labor Relations Board (NLRB), alleging the Union refused
to grieve her termination for unfair or discriminatory reasons. The NLRB dismissed
the charge, ruling that the Union’s refusal “was based on its good faith interpretation
of the [CBA]” and her status as a probationary employee. Id. at 24. That decision
was upheld by the NLRB Office of Appeals. More than two years later, on
March 10, 2019, Cummings filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC), alleging the Union refused to
represent her based on her race and age. On July 1, 2019, the EEOC dismissed the
charge and issued a right-to-sue letter. 1
The district court did not address whether Cummings exhausted her
1
administrative remedies. We need not address this issue. See Singh v. Cordle,
936 F.3d 1022, 1037 & n.2 (10th Cir. 2019).
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Cummings then initiated this suit in state court. Upon removal to federal
court, the district court denied the Union’s motion to dismiss but granted its motion
for summary judgment.
II
“We review the district court’s grant of summary judgment de novo, applying
the same legal standard employed by the district court.” York v. Am. Tel. & Tel. Co.,
95 F.3d 948, 955 (10th Cir. 1996). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We liberally construe
pro se pleadings, but we “cannot take on the responsibility of serving as the [pro se]
litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Pro se litigants
must “follow the same rules of procedure that govern other litigants.” Id. (internal
quotation marks omitted).
Under Title VII and the ADEA, which both apply to labor unions, see
42 U.S.C. § 2000e-2(c)(1) (Title VII); 29 U.S.C. § 623(c)(1) (ADEA), a plaintiff
must show intentional discrimination, which can be demonstrated through either
direct or circumstantial evidence, see Bennett v. Windstream Comm’cns, Inc.,
792 F.3d 1261, 1266 (10th Cir. 2015). If relying on circumstantial evidence, as
Cummings does here, a plaintiff must make a prima facie case, which “generally
requires a plaintiff to show, by a preponderance of the evidence, that she is a member
of a protected class, she suffered an adverse employment action, and the challenged
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action occurred under circumstances giving rise to an inference of discrimination.”
Id. If a plaintiff makes a prima facie case, the burden “shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions,” upon which the
burden shifts back “to the plaintiff to show that the defendant’s explanation was
merely pretextual.” Id.
In York, however, we articulated different elements for a prima facie case
involving a labor union:
To establish a prima facie Title VII claim against a union for breach of
its duty of fair representation, a plaintiff must show that (1) the
employer violated the collective bargaining agreement with respect to
the plaintiff, (2) the union permitted the violation to go unrepaired,
thereby breaching the union’s duty of fair representation, and (3) there
was some indication that the union’s actions were motivated by
discriminatory animus.
95 F.3d at 955-56.
The district court followed York. But the district court also applied the
traditional prima facie test, recognizing that other circuits do not require a plaintiff to
show the employer breached the CBA as an element of the prima facie case against a
labor union. See, e.g., Peeples v. City of Detroit, 891 F.3d 622, 636 (6th Cir. 2018)
(“[A] claim against a labor organization under § 2000e-2 . . . does not require a
showing that . . . the union violated any . . . contract.” (internal quotation marks
omitted)); Green v. Am. Fed’n of Tchrs./Ill. Fed’n of Tchrs., Local 604, 740 F.3d
1104, 1106 (7th Cir. 2014) (“When the Supreme Court established the elements of a
Title VII prima facie case . . . , it did not include any element that depended on
breaking a contract.”).
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The district court concluded that Cummings failed to establish the first element
of a prima facie case under the York test—showing that USPS violated the CBA.
Cummings waived or forfeited any appellate argument concerning that element by
failing to address it in the district court. See United States v. Leffler, 942 F.3d 1192,
1197 (10th Cir. 2019) (“Although we have described the failure to raise a challenge
in district court as a ‘waiver,’ it is more precisely termed a forfeiture when nothing
suggests a knowing, voluntary failure to raise the matter.” (internal quotation marks
omitted)). Indeed, as the district court recognized, Cummings “made no effort to
demonstrate that the USPS violated the [CBA]” and thus, she failed to meet “her
burden as to a prima facie case.” R., vol. 3 at 449. Her failure to preserve this issue
and argue for plain error on appeal “surely marks the end of the road for” any
argument for reversal based on the district court’s analysis under York. Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). 2
Cummings contends the district court erred in relying on York. But even if we
did not follow the dictum in York and instead applied the traditional prima facie case,
Cummings’ claims could not survive summary judgment. That is because even if she
established a prima facie case under the traditional test, she cannot show the Union’s
proffered reason for refusing to process her grievances—its interpretation of the CBA
and the 2014 MOU—was pretext for discrimination. See Hiatt v. Colo. Seminary,
2
In any event, as indicated above, we recently held in Cummings’ related
appeal that USPS did not violate the CBA. Cummings, 2021 WL 4592271, at *4. In
light of our disposition, however, we need not consider the preclusive effect of that
decision in this case.
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858 F.3d 1307, 1316-17 & n.10 (10th Cir. 2017) (assuming without deciding that
plaintiff established a prima facie case and resolving claims at pretext stage). A
plaintiff may establish pretext with evidence of “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [defendant’s] proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the [defendant] did not act for the
asserted non-discriminatory reasons.” Bennett, 792 F.3d at 1267 (internal quotation
marks omitted).
The Union has maintained that it declined to pursue Cummings’ grievances
because she completed only one full term as a PSE before she converted to a Career
position, and thus, under the CBA and the 2014 MOU, she was a probationary
employee who did not have access to the grievance process. The CBA states that
new employees are subject to a 90-day probationary period during which
“probationary employees shall not be permitted access to the grievance procedure.”
R., vol. 2 at 40. Although Cummings denies that this provision applies to her
because she was not a new employee, the 2014 MOU states that PSEs (like
Cummings) who converted to a Career position were required to serve “a new 90-day
probationary period” unless they had successfully completed two successive 360-day
terms, id. at 70-71 (emphasis added). Cummings had completed only one term
before she converted to a Career position. Thus, under the CBA and the 2014 MOU,
she was subject to the new probationary period and excluded from the grievance
process. Cummings asserts that her probationary status should be governed by the
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2016 MOU, which reduced the required service time from two terms to one to avoid
the probationary period, but Pruitt explained that the 2016 MOU “did not apply to
[Cummings]” “because [she] was terminated before it was executed” “and her
employment was therefore governed by the 2014 MOU,” id. at 35.
Cummings raises various objections to this and other evidence, but we decline
to consider those arguments because she does not provide any record citation
indicating she presented her objections to the district court. See Leffler, 942 F.3d at
1197; see also Garrett, 425 F.3d at 840 (recognizing it is not this court’s role to
search the record on behalf of a pro se litigant). In a related argument, Cummings
contends the district court “did not give [her] an opportunity to properly support or
address the fact[s]” and she “was not aware or warned of her obligation to submit
reply affidavits in response to a motion for summary judgment.” Aplt. Br. at 19. But
Fed. R. Civ. P. 56(c) put her on notice that she was required to dispute facts for
purposes of summary judgment, and the district court was not obliged to act as her
lawyer and advise her how to prepare her case, see Garrett, 425 F.3d at 840.
Cummings also attempts to show pretext by arguing that the Union “assisted
other younger, white” women obtain reemployment. Aplt. Br. at 6. On this score,
we have recognized that “evidence that a similarly situated employee received better
treatment can suggest” pretext. Roberts v. Int’l Bus. Machs. Corp., 733 F.3d 1306,
1310 (10th Cir. 2013). But there is no evidence that these employees received better
treatment—at least not by the Union. In her deposition, Cummings acknowledged
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the Union did not file grievances for these employees. See R., vol. 3 at 23. She
therefore fails to show pretext.
We briefly address two final matters: First, Cummings says she is appealing
her motion for sanctions, although she does not elaborate on the issue or otherwise
present an argument. See Aplt. Br. at 3. Second, she tells us that she filed a motion
for an indicative ruling in the district court under Fed. R. Civ. P. 62.1, apparently
seeking to obtain additional discovery, but she does not indicate whether the district
court has acted on her motion. See Aplt. Br. at 10. Absent any developed argument
on these issues, we decline to consider them further. See Christian Heritage Acad. v.
Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007)
(“Scattered statements in the appellant’s brief are not enough to preserve an issue for
appeal.” (internal quotation marks omitted)).
III
The district court’s judgment is affirmed.
Entered for the Court
Joel M. Carson III
Circuit Judge
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