Plaintiff immediately complained to his Union Representative,
Ronald Massey. See Beckman Aff. ¶ 12; Massey Dep. at 54-55.
Thereafter, Massey referred plaintiff to Brenda Jackson, the Shop
Steward, who helped him file a formal grievance. See Beckman
Aff. ¶ 12. At each of the preliminary stages, plaintiff's
grievance was denied, but was eventually certified for
arbitration. See id. The hearing was scheduled for December 12,
1995. See Beckman Aff. ¶ 13.
Yet, to plaintiff's chagrin, the Union elected to withdraw the
grievance prior to the date of the arbitration hearing. Massey
explained that the Union's decision was based on its evaluation
of the merits of the case and its conclusion that plaintiff would
be unable to prevail, given the provision in the CBA that
eliminated his seniority. See Massey Dep. at 72-73; Beckman
Aff., Exh. H. Plaintiff appeared before the arbitrator on
December 12, 1995, but was allegedly informed at that point by
another Union Representative, Charles Bembry, that the grievance
had been withdrawn due to a "conflict of interest." Beckman Aff.
Although the USPS initially permitted plaintiff to continue
working on Tour 2, even after his grievance had been withdrawn,
see Beckman Dep. at 69; Massey Dep. at 106, 117-18, plaintiff
was eventually switched to the Tour 1 night shift in April 1996.
Plaintiff asserts that the shift switch has caused him
substantial mental anguish and distress, including depression and
other physical symptoms. See Beckman Aff. ¶ 15 & Exh. I. On May
1, 1996, plaintiff initiated the instant action. Plaintiff served
an Amended Complaint on June 10, 1996, alleging a "hybrid" cause
of action against the USPS and the Union. See Am. Compl. ¶¶
9-16. Following the close of discovery, both defendants moved for
I. Standard for Summary Judgment
A moving party is entitled to summary judgment if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v.
KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The
moving party bears the burden of demonstrating that no genuine
issue of material fact exists. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gallo
v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d
Cir. 1994). "In moving for summary judgment against a party who
will bear the ultimate burden of proof at trial, the movant's
burden will be satisfied if he can point to an absence of
evidence to support an essential element of the nonmoving party's
claim." Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995).
In deciding a motion for summary judgment, the Court's function
is not to try issues of fact, but instead to determine whether
there remain any such issues to try. See Sutera v. Schering
Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In doing so, the Court
must resolve all ambiguities and draw all justifiable inferences
in favor of the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
see also Holt, 95 F.3d at 129. However, the substantive law
governing the case will identify those facts that are material,
and "[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will preclude the entry of
summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
"A `genuine' dispute over a material fact only arises if the
evidence would allow a reasonable jury to return a verdict for
the nonmoving party." Dister, 859 F.2d at 1112. Hence, the
nonmoving party "must
do more than simply show that there is some metaphysical doubt as
to the material facts." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). "Mere speculation or conjecture" will not suffice, see
Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d
Cir. 1990), nor will "reliance on unsupported assertions,"
Goenaga, 51 F.3d at 18. Rather, the nonmoving party must
provide "concrete evidence from which a reasonable juror could
return a verdict in his favor." Anderson, 477 U.S. at 256, 106
II. Plaintiff's "Hybrid" Cause of Action
Plaintiff's Amended Complaint alleges that the USPS violated
the CBA by removing him from Assignment 131, see Am. Compl. ¶¶
9-10, 14, and that the Union subsequently breached its duty of
fair representation by refusing to represent him in the grievance
process, see Am. Compl. ¶¶ 11-12, 15-16; see also DelCostello
v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103
S.Ct. 2281, 76 L.Ed.2d 476 (1983); Vaca v. Sipes, 386 U.S. 171,
184-86, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In the typical
"hybrid" action, the employer's duty to honor the collective
bargaining agreement is governed by section 301 of the Labor
Management Relations Act (the "LMRA"), 29 U.S.C. § 185, and the
union's duty of fair representation is implied from section 9(a)
of the National Labor Relations Act (the "NLRA"),
29 U.S.C. § 159(a). See DelCostello, 462 U.S. at 164, 103 S.Ct. 2281;
White v. White Rose Food, 128 F.3d 110, 113 (2d Cir. 1997).
However, because the USPS is not an employer within the meaning
of 29 U.S.C. § 152(2),*fn7 this Court has jurisdiction only
pursuant to section 1208(b) of the PRA, 39 U.S.C. § 1208(b). See
Young v. USPS, No. 86 Civ. 9492, 1990 WL 3181, at *4 (S.D.N Y
Jan. 11, 1990), aff'd, 907 F.2d 305 (2d Cir. 1990). As section
1208(b) tracks the language of 29 U.S.C. § 185(a),*fn8 see
National Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915,
918 (2d Cir. 1971), federal courts have consistently applied the
principles applicable to suits against non-governmental employers
to § 1208(b) actions brought against the USPS, see Young, 907
F.2d at 307; American Postal Workers Union v. USPS,
766 F.2d 715, 720 (2d Cir. 1985).
In a "hybrid" lawsuit, an individual employee challenges the
result of a union grievance process based on allegations that the
union breached the duty of fair representation it owes to each
member employee. See DelCostello, 462 U.S. at 164-65, 103 S.Ct.
2281; Vaca, 386 U.S. at 185-86, 87 S.Ct. 903; White, 128 F.3d
at 113-14. To prevail, the plaintiff must show (1) that the union
breached its duty of fair representation; and (2) that the
employer breached the terms of the CBA. See DelCostello, 462
U.S. at 163-65, 103 S.Ct. 2281; White, 128 F.3d at 113-14. Both
elements must be established to prevail against either defendant.
See DelCostello, 462 U.S. at 163-65, 103 S.Ct. 2281. Therefore,
because "the Union's breach is a prerequisite to consideration of
the merits of plaintiff's claim against [his] former employer for
improper discharge," Young, 907 F.2d at 307, if the plaintiff
is unable to prove that the union breached its duty of
fair representation, there will be no need to consider whether
the employer violated the CBA. See United Parcel Serv., Inc. v.
Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 67 L.Ed.2d 732
(1981); Flanigan v. Truck Drivers Local No. 671, 942 F.2d 824,
828 (2d Cir. 1991).
A. Duty of Fair Representation
A union has "broad discretion in its decision whether and how
to pursue an employee's grievance against an employer."
Chauffeurs Teamsters & Helpers, Local No. 391 v. Terry,
494 U.S. 558, 567-68, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990) (citing
Vaca, 386 U.S. at 185, 87 S.Ct. 903). But cf. Vaca, 386 U.S.
at 186, 87 S.Ct. 903 ("We cannot believe that Congress, in
conferring upon employers and unions the power to establish
exclusive grievance procedures, intended to confer upon unions .
. . unlimited discretion to deprive injured employees of all
remedies for breach of contract."). As the Supreme Court has well
union discretion is essential to the proper
functioning of the collective-bargaining system.
Union supervision of employee complaints promotes
settlements, avoids processing of frivolous claims,
and strengthens the employer's confidence in the
union. Without these screening and settlement
procedures, . . . the costs of private dispute
resolution could ultimately render the system
International Bhd. of Elec. Workers v. Foust,