United States Court of Appeals
For the First Circuit
No. 02-2190
ANGEL DAVID MORALES-VALLELLANES,
Plaintiff, Appellant,
v.
JOHN E. POTTER, UNITED STATES POSTMASTER GENERAL;
AMERICAN POSTAL WORKERS UNION, PUERTO RICO AREA LOCAL (A.P.W.U. -
P.R.A.L.) A.F.L.-C.I.O.; DANIEL SOTO, PRESIDENT A.P.W.U.-
P.R.A.L.; ENRIQUE LOPEZ,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
[Hon. J.A. Castellanos, U.S. Magistrate Judge]
Before
Torruella, Selya, and Lipez, Circuit Judges.
Miguel E. Miranda-Gutiérrez for appellant.
Arturo Luciano-Delgado for appellees American Postal Workers
Union and Daniel Soto.
David G. Karro, with whom Guillermo Gil, United States
Attorney, Fidel A. Sevillano Del Rio, Assistant United States
Attorney, Eric J. Scharf, and Stephan J. Boardman were on brief,
for appellee United States Postal Service.
August 4, 2003
LIPEZ, Circuit Judge. Plaintiff Angel David Morales-
Vallellanes ("Morales") brought this action against the United
States Postal Service ("USPS" or "the Postal Service") alleging
that he was the target of retaliatory and discriminatory acts
provoked by complaints that he filed with the Occupational Safety
and Health Administration ("OSHA"). Morales also sued the American
Postal Workers Union ("APWU" or "the Union") and its president,
Daniel Soto, in the same action, claiming that the Union breached
its duty of fair representation by failing to submit and process
his grievances against USPS.
The United States District Court for the District of
Puerto Rico referred the case to a magistrate judge, who
recommended that the court grant motions for summary judgment
submitted by defendants USPS and the Union. Morales filed a
lengthy objection to the report and recommendation, essentially
restating the allegations in his amended complaint, but also
incorporating sixty-seven new exhibits that had not previously been
brought to the magistrate judge's attention. Concluding that
"Plaintiff . . . failed to raise any material issue not adequately
addressed by the magistrate judge in his Report," the district
court adopted the magistrate judge's report and recommendation, and
granted the defendants' motions for summary judgment. After
careful review, we affirm in part and reverse in part.
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I.
We summarize the relevant facts from the summary judgment
record, reciting them in the light most favorable to Morales. See
Diaz v. City of Fitchburg, 176 F.3d 560, 561 (1st Cir. 1999). In
1988, Morales was hired to work as a distribution and window clerk
at the Caparra Heights, Puerto Rico, Station of the United States
Postal Service. On April 7, 1995, plaintiff filed a letter with
OSHA complaining of dust accumulation, rodent infestation, and
other unsanitary conditions at the Caparra Heights station. OSHA
ordered the station manager to correct the violations by June 19,
1995, but to no avail. Morales renewed his OSHA complaint through
certified letters to the OSHA Area Director on August 1, 1995,
February 23, 1996, and April 6, 1996. Finally, on June 14, 1996,
OSHA conducted a formal inspection of the Caparra Heights station
and confirmed plaintiff's allegations. OSHA cited the Caparra
Heights station for at least five violations, and directed the
station to remedy the safety and health hazards by October 9, 1996.
At this point, we bifurcate our chronology of the
subsequent events for purposes of clarity, turning first to the
circumstances that spawned Morales's claims against the Postal
Service, and concluding with an account of the events underlying
plaintiff's claims against the Union.
A. Events underlying the claims against USPS
Throughout the OSHA complaint process, the agency assured
Morales that his identity as an OSHA complainant would be kept
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confidential, and that federal law forbade USPS from retaliating or
discriminating against him for whistle-blowing. Nevertheless,
plaintiff's amended complaint alleges that by July 1995 other
employees at the Caparra Heights station were aware that he had
filed OSHA complaints, and were retaliating against him. That
month, Morales alerted the Postal Inspection Service that he had
received two threats from co-workers, but no remedial steps were
taken.
In January 1996, plaintiff expressed interest in an
available distribution and window clerk position with Saturdays and
Sundays off.1 USPS then allegedly re-classified the position to
offer only Sundays and Thursdays off so as to decrease its
desirability to plaintiff. On March 23, 1996, Enrique Lopez, the
Caparra Heights station supervisor, issued a letter of warning to
Morales for unsatisfactory performance, citing the plaintiff's
"abuse of coffee breaks." Two months later, Lopez removed Morales
from his position as a Business Reply Mail Clerk, Postage Due Clerk
and Express Mail Clerk,2 and replaced him with a female co-worker.
1
At oral argument, plaintiff's counsel explained that the
Caparra Heights station operates twenty-four hours a day, seven
days a week. While employees at the post office typically work
only five days a week, the allotted days off for many positions do
not correspond with the weekend.
2
Morales alleges that he was assigned to this position as a
reasonable accommodation for a job-related injury. It appears that
plaintiff suffered from a physical disability that limited the
stress he could place on his right arm. This disability restricted
the tasks that plaintiff could painlessly perform at work, and
allegedly provided USPS with a pretext for excluding him from the
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In July 1996, tires on Morales's car were punctured on two separate
occasions while the car was parked in the secured Caparra Heights
station parking lot.
On October 10, 1996, Morales's contact at OSHA informed
him that the agency had no authority to protect postal employees
from retaliation, and urged the plaintiff to request USPS to
conduct an internal investigation. Without seeking Morales's
consent, OSHA forwarded his file to the Postal Service, thereby
confirming to USPS that plaintiff was in fact the whistle-blower.
From that point on, the retaliation and discrimination directed at
plaintiff worsened considerably. Morales alleged that in December
1996 he was victimized by episodes of name-calling and bullying,
and later that month he was suspended one week for violating a new
uniform policy instituted by Lopez. In January 1997, a postal
employee poured sugar into the gas tank of plaintiff's car, nearly
resulting in a traffic accident. On at least three occasions in
February, plaintiff's supervisor dismissed him from work without
pay because "there was no work available for him." Finally, on
February 20, 1997, plaintiff was transferred from the Caparra
Heights station to the General Post Office in San Juan. Morales
alleges that he was removed from the Caparra Heights station
because co-workers accused him of being "a safety hazard and a
homosexual."
workplace in February 1997. See infra.
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These events prompted Morales to file four Equal
Employment Opportunity (EEO) complaints with the USPS.3 Plaintiff
filed his first precomplaint on February 15, 1996, in the aftermath
of USPS's decision to alter the allotted days off for the available
distribution and window clerk position. His second EEO
precomplaint, submitted April 25, 1996, alleged that a new coffee
and lunch break policy instituted at the Caparra Heights station
unfairly discriminated against male postal employees. After the
USPS failed to respond to his first precomplaint, Morales filed a
formal EEO complaint on April 3, 1996, alleging that USPS
unlawfully retaliated against him by posting the available window
clerk position with Thursday/Sunday rest days rather than
Saturday/Sunday rest days. He subsequently filed a second formal
EEO complaint on September 5, 1996, citing the discriminatory break
policy and another episode of retaliation. Plaintiff finally left
the employ of the USPS in early September 1997, allegedly as the
result of a constructive discharge.
3
The EEO complaint process provides an administrative forum
for postal employees to resolve discrimination claims against the
USPS. Postal workers alleging discrimination are required to file
a "precomplaint" and consult with an EEO counselor. If the matter
raised in the precomplaint is not resolved within the established
30-day counseling period, the employee is authorized to file a
formal EEO complaint. Once the formal complaint is filed, USPS is
compelled to take action within a specified time period. After
this period expires, the employee is permitted to file suit in
United States District Court. What You Need to Know About EEO,
Publication 133, November 1999, .
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B. Events underlying the claims against APWU
In 1991, long before the events at issue here, Morales
had been appointed shop steward of the Caparra Heights station by
defendant Soto's predecessor, but was removed shortly thereafter
for reasons that are unclear. Six years later, the Union elected
Soto as its new president, and Morales petitioned him repeatedly
for a second tour as shop steward. Soto capitulated, appointing
Morales to the position on January 17, 1997. However, plaintiff's
tenure ended abruptly three weeks later after Soto received
complaints that Morales was acting inappropriately toward co-
workers, and abusing his union status to avenge himself on USPS
management.
Morales alleges that his dismissal as union shop steward
was motivated by a conspiracy between USPS and APWU to remove him
from his job at the Caparra Heights station, in violation of the
Union's bylaws. Plaintiff also claims that the Union failed to
process his grievances arising from two February 1997 dismissals
from work, or take any action with respect to his constructive
discharge.
II.
Morales filed an amended complaint consolidating his
numerous allegations of wrongdoing into four counts. Count I,
entitled "Retaliation and Discrimination," alleges that USPS
unlawfully retaliated against plaintiff for filing OSHA claims, EEO
complaints, and unfair labor practice charges. Count II, entitled
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"Conspiracy," accuses the USPS and APWU of "conspir[ing] against
Plaintiff to cause his removal as Caparra Heights Shop Steward and
later on his removal from Caparra Heights Station." Count III
alleges 1) that USPS violated the collective bargaining agreement
("CBA"), and 2) that APWU breached its duty of fair representation
"by arbitrarily, capriciously, in bad faith and/or invidiously
failing to process timely Plaintiff's grievances through [USPS's]
grievance procedure." Finally, Count IV claims intentional
infliction of emotional distress arising from the "outrageous acts
and omissions, retaliatory conduct, and discrimination" perpetrated
by USPS and APWU.
As a preliminary matter, plaintiff's failure to cite any
statutory basis for relief in his amended complaint complicates our
review of his claims. However, under the liberal "notice pleading"
requirements of Rule 8 of the Federal Rules of Civil Procedure,
this deficiency is not fatal to plaintiff's case:
A complaint need not point to the appropriate
statute or law in order to raise a claim for
relief under Rule 8 . . . . [A] complaint
sufficiently raises a claim even if it points
to no legal theory or even if it points to the
wrong legal theory as a basis for that claim,
as long as relief is possible under any set of
facts that could be established consistent
with the allegations.
Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992)
(internal quotation marks omitted); see Fitzgerald v. Codex Corp.,
882 F.2d 586, 589 (1st Cir. 1989); see also Simonton v. Runyon, 232
F.3d 33, 36-37 (2d. Cir. 2000). These omissions do, however,
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create an ambiguity as to whether Morales's claims arise solely
under the anti-discrimination clause of the CBA,4 or whether
plaintiff also intended to plead a cause of action under Title VII
of the Civil Rights Act of 1964.
This query is not academic -- while the protections built
into the CBA parallel those of Title VII, the two remedial schemes
contain discrete exhaustion requirements that may bar their
availability to plaintiff as sources of relief. Appellees urge us
to find that Morales's amended complaint relied entirely on the
CBA, and failed to allege properly a Title VII claim. That
contention ignores both the substance and structure of Morales's
amended complaint. Not only is the complaint replete with
references to plaintiff's EEO initiatives, see infra note 5, but
the retaliation and discrimination claims are set forth in a
separate count to distinguish them from Morales's claims for
violations of the CBA. Moreover, Morales cited to Title VII both
in his opposition to summary judgment and in his appellate brief.
4
Under Article 2, Section 1 of the CBA:
The Employer and the Union agree that there shall be no
discrimination by the Employer or the Union against
employees because of race, color, creed, national origin,
sex, age, or marital status. In addition, consistent
with other provisions of this agreement, there shall be
no unlawful discrimination against handicapped employees,
as prohibited by the Rehabilitation Act.
Collective Bargaining Agreement between American Postal Workers
Union, AFL-CIO, and U.S. Postal Service; November 21, 1994 -
November 20, 1998.
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Therefore, we believe the more prudent course is to broadly
construe the allegations in plaintiff's amended complaint as
alleging a cause of action under both the CBA and Title VII. See
Fed. R. Civ. P. 8(f) ("All pleadings shall be so construed as to do
substantial justice."); Foster Med. Corp. Employees' Pension Plan
v. Healthco, Inc., 753 F.2d 194, 197 (1st Cir. 1985).5 With this
approach in mind, we turn to the counts of the amended complaint.
III.
A. Breach of Collective Bargaining Agreement
In accepting the recommendations of the magistrate judge,
the district court properly characterized Count III of Morales's
5
On facts similar to these, the Seventh Circuit broadly
construed the plaintiff's complaint to invoke Title VII as a basis
for relief:
Although Brown's complaint does not invoke Title VII as
a basis for her claim explicitly, it does indicate that
an EEOC charge had been made and that the complaint was
filed within ninety days after receiving an EEOC right
to sue letter . . . The reference in Brown's complaint to
EEOC procedures did give the defendants some notice that
she was pursuing a federal Title VII action . . . Though
inartfully drafted, we are hesitant to judge Brown's
complaint so narrowly as to foreclose the full
adjudication of her claim on the mere failure to cite
Title VII explicitly.
Brown v. Reliable Sheet Metal Works, Inc., 852 F.2d 932, 933 n.1
(7th Cir. 1988), overruled on other grounds, Donnelly v. Yellow
Freight System, Inc., 874 F.2d 402 (7th Cir. 1989).
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amended complaint as advancing a "hybrid breach of contract and
fair representation claim." The Supreme Court has observed that
[s]uch a suit, as a formal matter, comprises
two causes of action. The suit against the
employer rests on § 301 [of the Labor
Management Relations Act], since the employee
is alleging a breach of the collective
bargaining agreement. The suit against the
union is one for breach of the union's duty of
fair representation, which is implied under
the scheme of the National Labor Relations
Act. Yet the two claims are inextricably
interdependent. To prevail against either the
company or the Union, employee-plaintiffs must
not only show that their discharge was
contrary to the contract but must also carry
the burden of demonstrating a breach of duty
by the Union.
DelCostello v. Int'l Broth. of Teamsters, 462 U.S. 151, 164-65
(1983) (internal citations and quotation marks omitted) (emphasis
added); see also Local No. 391 v. Terry, 494 U.S. 558, 563-64
(1990); Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 14 (1st Cir.
2001). The dual requirements for alleging a "hybrid claim" are
predicated on the theory that an employee working under a CBA is
ordinarily required to exhaust the grievance procedures provided in
that agreement before bringing suit. DelCostello, 426 U.S. at 163.
A rigid exhaustion requirement, however, works an injustice to the
employee "when the union representing the employee in the
grievance/arbitration procedure acts in such a discriminatory,
dishonest, arbitrary or perfunctory fashion as to breach its duty
of fair representation." Id. at 164. Under these circumstances,
an employee who has not exhausted the grievance procedures outlined
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in the CBA may nonetheless file suit against the employer if he can
demonstrate that the union breached its duty of fair
representation, such that the grievance procedures mandated by the
CBA provided no meaningful recourse. Id.
Courts conduct a tripartite inquiry to determine whether
a union breached its duty of fair representation so materially as
to render the CBA's grievance procedures inadequate. "The three
separate levels of inquiry . . . are as follows: (1) did the union
act arbitrarily; (2) did the union act discriminatorily; or (3) did
the union act in bad faith." Ooley v. Schwitzer Div., Household
Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992) (citing Air Line
Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 71-76 (1991)). "In
order to successfully defend against a motion for summary judgment
on a duty of fair representation claim, the plaintiff must point
the court to record evidence supporting any one or all of these
elements." Griffin v. Air Line Pilots Ass'n, Int'l, 32 F.3d 1079,
1083 (7th Cir. 1994). The Supreme Court has stressed that our
evaluation of any such evidence must be "highly deferential" to the
union. O'Neill, 499 U.S. at 78 (quoting Ford Motor Co. v. Huffman,
345 U.S. 330, 338 (1953)).
The deference accorded unions defending hybrid claims
imposes a heavy burden on employees like Morales alleging a breach
of the duty of fair representation. Against this backdrop, the
district court did not err in its determination that Morales's
submissions failed to provide the requisite record evidence of
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"irrational" union activity falling "outside a wide range of
reasonableness." Id. Plaintiff's amended complaint and opposition
to summary judgment instead raise bare allegations that APWU 1)
violated its bylaws by perfunctorily dismissing him from his
position as shop steward, and 2) unduly delayed or failed to
process "several of plaintiff's grievances." In response, APWU's
motion for summary judgment references specific provisions in the
Union's bylaws authorizing the Union president to dismiss a shop
steward without providing any prior process.6 The exhibits
appended to APWU's summary judgment motion also include letters to
Morales meticulously documenting the progression of his various
grievances against USPS, and reflect that APWU had previously
sought and obtained time extensions from USPS to ensure that any
grievances that were delayed were not defaulted.
In short, after reviewing the summary judgment record, we
conclude that Morales failed to proffer sufficient evidence that
the Union breached its duty of fair representation by acting
arbitrarily, discriminatorily, or in bad faith. O'Neill, 499 U.S.
at 76-77. Consequently, plaintiff fails to satisfy the first of
the dual hybrid claim requirements, see DelCostello, 426 U.S. at
6
APWU's bylaws do permit deposed shop stewards to file a
written appeal within fifteen days of their removal, and provide
that "The Board of Directors will make a full investigation on the
work place or Installation and render a written decision within 15
days" of receiving the appeal. There is no indication that Morales
ever availed himself of this option.
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163, and we need not separately assess Morales's allegations that
USPS violated the CBA.
B. Retaliation and Discrimination under Title VII
Adopting the recommendation of the magistrate judge, the
district court concluded that Morales's retaliation and
discrimination claims were only actionable under the collective
bargaining agreement. However, it is well settled that Title VII
of the Civil Rights Act of 1964 provides relief independent of the
remedial scheme outlined in the CBA. In Alexander v. Gardner-
Denver Co., 415 U.S. 36 (1974), the Supreme Court concluded that
the legislative history of Title VII manifests
a congressional intent to allow an individual
to pursue independently his rights under both
Title VII and other applicable state and
federal statutes. The clear inference is that
Title VII was designed to supplement rather
than supplant, existing laws and institutions
relating to employment discrimination.
Id. at 48-49. The Alexander Court accordingly ruled that
plaintiffs who invoke the grievance procedures of the collective
bargaining agreement do not thereby forfeit their private right of
action under Title VII. Id. at 49. Hence, Alexander and its
progeny, see Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 78-
79 (1998), support the proposition that the presence of an anti-
discrimination provision in a collective bargaining agreement does
not foreclose a postal employee's private right of action under
Title VII.
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The Seventh Circuit's decision in Roman v. U.S. Postal
Service, 821 F.2d 382 (7th Cir. 1987), relied upon by the district
court, is not to the contrary. In Roman, the Postmaster of the
post office where Roman worked accused him of falsifying his
employment application form, and allegedly promised him a position
at another postal facility if he chose to resign from his current
job rather than be fired. After the Postmaster failed to deliver
on this promise, Roman filed suit in federal district court
alleging that USPS violated his procedural due process rights by
"fraudulently inducing him to resign from his employment." Id. at
384. The Seventh Circuit rejected the plaintiff's argument that
the Constitution itself furnished a right of action for his
procedural due process claim, observing that "Congress has
expressly authorized the adoption of final and binding grievance
procedures in the Postal Service collective bargaining agreements."
Id. at 386 (quoting Ellis v. U.S. Postal Service, 784 F.2d 835,
839-40 (7th Cir. 1980)). Accordingly, Roman's recourse was limited
to the procedural rights enshrined in that agreement:
Roman's allegation that the Postal Service
violated his due process rights in threatening
him and forcing him to resign does not provide
jurisdiction. Where Congress has created an
elaborate, remedial scheme which adequately
and comprehensively addresses the protection
of constitutional rights in the employment
context, an employee whose rights are
protected through that scheme cannot bring a
new, non-statutory action.
Id. at 385-86 (emphasis added).
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However, just as Congress may limit an employee's avenues
of redress for certain constitutional claims by establishing "an
elaborate remedial scheme" that adequately addresses such claims,
it also has the power to create multiple rights of action to
redress other types of employment injuries. Thus, as the Supreme
Court ruled in Alexander, the legislative history of Title VII
reflects Congress's intent to provide employees victimized by
retaliation or discrimination with an additional statutory right of
action wholly independent of the CBA. Alexander, 415 U.S. at 48-
49. The district court therefore erred in concluding that the
collective bargaining agreement between USPS and APWU furnished
Morales's sole avenue of recourse for his retaliation and
discrimination claims.
Judicial recourse under Title VII, however, is not a
remedy of first resort. See Jensen v. Frank, 912 F.2d 517, 520
(1st Cir. 1990) ("Title VII requires exhaustion of administrative
remedies as a condition precedent to suit in federal district
court."). USPS's EEO Guidelines, promulgated pursuant to 42 U.S.C.
§ 2000e-5, prescribe a lengthy administrative process that
plaintiffs must exhaust prior to filing a Title VII action in
district court. Here, Morales argues that USPS failed to provide
any formal disposition of his two formal EEO complaints within the
established 180-day window, see 29 C.F.R. § 1614.107(c), thereby
entitling him to pursue his claims in district court. Plaintiff
buttresses his assertions with two letters from USPS formally
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dismissing his EEO complaints. Each letter informed Morales that
"[i]f you are dissatisfied with the Postal Service's final decision
in this case, you may file a civil action in an appropriate U.S.
District Court . . ."
USPS argues on appeal that even if plaintiff may
theoretically look outside the collective bargaining agreement to
an alternative source of relief under Title VII, he forfeited his
right of action by neglecting to file any EEO complaints addressing
the vast majority of the discriminatory and retaliatory incidents
described in the amended complaint.
We agree with USPS that Morales's Title VII cause of
action is limited to those discrimination and retaliation
allegations in his amended complaint that were previously the
subject of a formal EEO complaint. As we read the EEO dismissal
letters, this universe is limited to the following three
allegations:
(1) Morales's allegation that Job Bid #2541417 was
posted with Thursday/Sunday rest days rather than
Saturday/Sunday rest days in retaliation for
plaintiff's OSHA complaints
(2) Morales's allegation of sexual discrimination and
retaliation arising from an April 9, 1996
incident in which plaintiff's duties and
responsibilities were awarded to a female
employee and he was given window clerk duties to
perform
(3) Morales's allegation that the "coffee and lunch
breaks" policy was not applied in an equal and
nondiscriminatory matter
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We reject USPS's insinuation on appeal that summary
disposition of these surviving claims is appropriate at this time.
While it is within our discretion to affirm the district court's
entry of summary judgment on any ground revealed by the record,
Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184
(1st Cir. 1999), any determination of whether Morales's Title VII
claims can survive summary judgment is premature. As a consequence
of the district court's erroneous presumption that Morales's claims
were solely actionable under the CBA, no court has analyzed the
record to determine whether Morales has raised a material dispute
of fact that compels a trial on his surviving Title VII claims.
Under these circumstances, we believe the preferable practice is to
remand to the district court. See United States v. Gell-Iren, 146
F.3d 827, 831 (10th Cir. 199) ("A factual record must be developed
in and addressed by the district court in the first instance for
effective review."). However, Morales is precluded on remand from
seeking relief for a plethora of other acts of discrimination and
retaliation alleged in his amended complaint, including the
discrete acts of bullying, intimidation, and vandalism by his co-
workers, his seven-day suspension for violating the USPS uniform
policy, his transfer from the Caparra Heights station, his day-long
"expulsions" from work in February 1997, his constructive
discharge, and his internal grievances against APWU.7
7
Plaintiff's internal grievances against APWU are
theoretically actionable under Title VII, which provides that "[i]t
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C. Residual Claims
Our resolution of Morales's CBA and Title VII claims
disposes of his conspiracy claim. "A civil conspiracy is a
combination of two or more persons to do an unlawful or criminal
act or to do a lawful act by unlawful means for an unlawful
purpose." Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir.
1974); see also Maryland Casualty Co. v. Hosmer, 93 F.2d 365, 366
(1st Cir. 1937). The only predicate acts cited in the amended
shall be an unlawful employment practice for a labor organization
to exclude or to expel from its membership, or otherwise to
discriminate against, any individual because of his race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1);
see, e.g., Thorn v. Amalgamated Transit Union, 305 F.3d 826, 831-32
(8th Cir. 2002). However, the district court correctly adopted the
magistrate judge's determination that Morales failed to exhaust the
administrative remedies provided by the Union's bylaws:
Plaintiff should have exhausted the contractual remedies
provided to him as to any claim against the Union and/or
its agents which is not established as a breach of its
duty of fair representation, such as his removal from
shop steward position. He failed to exhaust internal
union appeal process.
Consequently, Morales has forfeited any Title VII claim arising
from his internal union grievances. In reaching this conclusion,
we reject as untenable Morales's complaint that he was unfairly
surprised by the magistrate judge's partial reliance on an
exhaustion rationale for disposing of his claims against APWU. The
record conclusively demonstrates that APWU put the exhaustion point
at issue throughout the litigation before the magistrate judge.
For this reason, the exhaustion arguments and supporting exhibits
raised for the first time before the district court were
inadmissible due to Morales's failure to present these materials to
the magistrate judge. See Paterson-Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic
efficiencies would be frustrated and the magistrate's role reduced
to that a mere dress rehearser if a party were allowed to feint and
weave at the initial hearing, and save its knockout punch for the
second round.").
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complaint that possibly establish a basis for conspiracy liability
are 1) APWU's removal of plaintiff as shop steward, 2) USPS's
decision to transfer plaintiff out of the Caparra Heights station,
and 3) plaintiff's alleged constructive discharge. We have
concluded, however, that Morales failed to preserve a right of
action for any of these three alleged offenses. Morales's
surviving Title VII claims, see supra, implicate only unilateral
decisions or policies of USPS that cannot form the gravamen of a
civil conspiracy claim. See Ammlung, 494 F.2d at 814.
With regard to Morales's emotional distress claim, even
assuming the truth of the surviving Title VII allegations, USPS's
conduct does not rise to the level of "extreme and outrageous,"
"beyond all possible bounds of decency," or "utterly intolerable in
a civilized community." Santiago-Ramirez v. Sec'y of Dept. of
Defense, 62 F.3d 445, 448 (1st Cir. 1995). Consequently,
plaintiff's intentional infliction of emotional distress claim
fails as a matter of law.
IV.
We affirm the judgment entered for defendants on counts
II, III, and IV of Morales's amended complaint. We vacate the
judgment entered on count I and remand for proceedings not
inconsistent with this decision. All parties shall bear their own
costs.
So ordered.
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