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United States District Court, Southern District of New York

January 12, 2000


The opinion of the court was delivered by: Leisure, District Judge.


Plaintiff Michael Beckman brings this "hybrid" action, pursuant to section 1208(b) of the Postal Reorganization Act of 1970 ("PRA"), 39 U.S.C. § 1208(b), alleging that (1) his employer, defendant United States Postal Service (the "USPS"), impermissibly transferred him from a duty assignment in violation of an existing collective bargaining agreement ("CBA"), and (2) his collective bargaining representative, defendant American Postal Workers Union — New York Metro Area Postal Union (the "Union"), breached its duty of fair representation, implied under the scheme of the National Labor Relations Act, 29 U.S.C. § 159(a), by failing to represent him fairly in redressing his grievance.*fn1 Both defendants have moved for summary judgment. For the following reasons, defendants' motions are hereby granted.


The USPS employs individuals in craft and non-craft positions. See Pendleton Decl. ¶ 2. All craft positions, including mail handler, clerk, and material handler, are unionized, see Beckman Aff. ¶ 3 n. 1; Lingberg Decl. ¶ 8, while non-craft positions are generally supervisory or management jobs at higher grade levels, see Pendleton Decl. ¶ 2; Lingberg Decl. ¶ 9. At the New Jersey International Bulk Mail Center (the "Bulk Center"),*fn3 where plaintiff was employed prior to the actions that led to this litigation, employees in maintenance craft positions work one of three shifts: Tour 1 (12:00 a.m. to 8:30 a.m.), Tour 2 (8:00 a.m. to 4:30 p.m.), or Tour 3 (4:00 p.m. to 12:30 a.m.). See Beckman Dep. at 11. These employees are selected for duty assignments based upon their seniority, as calculated under the relevant collective bargaining agreement. See CBA Between Union and USPS ("CBA"), art. 38, § 5.A.3 (Pendleton Decl., Exh. G). Pursuant to the CBA, all vacant or newly-established duty assignments in the maintenance craft are to be filled by the most senior employees. See id.

Plaintiff has been an employee of the USPS since March 1975. See Beckman Aff. ¶ 3. For over nine years, he worked as mail handler in the Bulk Center. See id. He later served as a clerk for the USPS in Bayonne, New Jersey, and subsequently, from 1989 to 1991, as a material handler at the Bulk Center. See id. At all relevant times throughout his tenure in these positions, plaintiff was a member of the Union. See id.

On March 26, 1991, the USPS promoted plaintiff to the position of Supervisor of Building Services. See id. As a supervisor, Beckman was no longer a member of the Union and hence no longer subject to the terms of the Union's collective bargaining agreement with the USPS. See id.; see also Lingberg Decl. ¶ 9. Furthermore, by accepting the promotion, plaintiff switched from a craft position to a non-craft position. See Beckman Aff. ¶ 3; Lingberg Decl. ¶ 9. Under article 12 of the CBA, an employee who leaves a craft position for a non-craft position will lose all accrued seniority if he later returns to a craft position within the USPS, unless the employee returns within two years from the date he left the craft position. See CBA art. 12, § 2.B.2.

Plaintiff served as Supervisor of Building Services for two years. Unfortunately for plaintiff, however, in March 1993, the USPS underwent a restructuring, and plaintiff was informed that his new position was being eliminated. See Beckman Aff. ¶ 4. Under a program entitled "Return to Craft Incentive," plaintiff was afforded the opportunity to resume the position he held prior to becoming a supervisor. See id.*fn4 On May 6, 1993, and again on June 28, 1993, plaintiff formally requested assignment to the maintenance craft position of material handler at the Bulk Center — the same job he held from 1989 to 1991. See Beckman Dep. at 24-27; Pendleton Decl., Exh. H. The USPS evidently offered plaintiff the grade level 4 position, which had an annual salary of $33,398, plus a lump sum incentive payment of $7,136 for accepting the reassignment. See Pendleton Decl., Exh. I. On July 9, 1993, plaintiff accepted the USPS's offer, and the next day left his supervisory position for his old material handler job at the Bulk Center. See id.; Beckman Dep. at 41. In connection with his return to the material handler position, plaintiff submitted a "Maintenance Preferred Assignment Sheet" indicating his preference for various duty assignments. See Beckman Aff. ¶ 5; Pendleton Decl., Exh. K. Plaintiff was initially slotted in duty assignment number 131 ("Assignment 131"), which denotes a Tour 2 (8:00 a.m. to 4:30 p.m.) material handler work shift at the Bulk Center, with Mondays and Tuesdays off. See Beckman Aff. ¶ 6; Beckman Dep. at 38-39.

Shortly after plaintiff received this assignment, however, two of his bargaining unit cohorts approached their Union Representative, Ronald Massey, and complained that plaintiff should not have been awarded Assignment 131 ahead of them, as they were on the relevant Promotion Eligibility Register ("PER")*fn5 for a material handler position, and both had more maintenance craft seniority than plaintiff. See Massey Dep. at 29-30. Other bargaining unit members complained directly to USPS management. See Galbo Dep. at 38-40; Johnson Dep. at 36-40. Later, a union representative informed USPS management that plaintiff had improperly received his assignment due to the fact that he had lost his seniority as a consequence of his two year absence from the maintenance craft, and because there were maintenance craft employees on the relevant PER who should have been selected over plaintiff. See Massey Dep. at 34-36.

After reviewing the situation, on December 10, 1993, USPS management removed plaintiff from Assignment 131, designated him an unassigned material handler, and subsequently replaced him with John Valez-Elias. See id. at 47-48; Beckman Aff. ¶¶ 11, 14; Pendleton Decl., Exh. L. During the time he was unassigned, plaintiff retained the Assignment 131 work shift. See Pendleton Decl. ¶ 9. Plaintiff was directed to submit bids for other duty assignments, but failed to do so. See id. ¶ 9-10. As a result, as it was permitted to do under CBA art. 38, § 5.A.8, the USPS gave plaintiff the only vacant material handler duty assignment at the Bulk Center, a Tour 1 (12:00 a.m. to 8:30 a.m.) work shift. See id.*fn6

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. ¶ 13.

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 summary judgment.


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 S.Ct. 2505.

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 articulated,

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 impracticable.

International Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 51, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979) (internal citation omitted).

Based on this rationale, the duty of fair representation merely obliges a union "`to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" Regan v. Soft Drink & Brewery Workers Union, Local 812, 89 F.3d 826, 1995 WL 722862, at *1 (2d Cir. 1995) (quoting Vaca, 386 U.S. at 177, 87 S.Ct. 903); see also Ryan v. New York Newspaper Printing Pressmen's Union, 590 F.2d 451, 455 (2d Cir. 1979). "It is . . . [the] plaintiff's burden to prove the union breached its duty, not the employer's to show that it did not." Young, 907 F.2d at 308. Consequently, to succeed on a claim of breach of the duty of fair representation, he must establish two elements. First, the plaintiff must demonstrate that the union's conduct was "`arbitrary, discriminatory, or in bad faith.'" Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989) (citing Vaca, 386 U.S. at 190, 87 S.Ct. 903). Second, he must show that the Union's acts or omissions "seriously undermine[d] the arbitral process." Id. (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976)).

Plaintiff contends that triable issues of fact exist as to whether the Union breached its duty of fair representation. See Pl. Opp. Mem. at 7. The crux of plaintiff's argument is that the Union's failure to pursue his grievance through an arbitration he could not otherwise compel on his own constitutes a breach. See Pl. Opp. Mem. at 7-8.*fn9 Specifically, plaintiff cites (1) the Union's "unilateral decision to withdraw [plaintiff's] grievance on the day of the arbitration, without any explanation to him," id. at 8; (2) an alleged "conflict of interest" arising from the fact that the withdrawal the grievance advantaged John Valez-Elias at plaintiff's expense, id. at 9; and (3) the Union's "refusal to give [plaintiff] any information relating to its removal of his grievance," id. Having reviewed all the evidence, however, the Court concludes that the allegations contained in plaintiff's Amended Complaint and his papers opposing the summary judgment motions do not raise triable issues of fact as to whether the Union breached its duty. The Court will address each of plaintiff's charges in turn.

1. Withdrawal of the Grievance

In his affidavit, plaintiff states that he was not informed about the Union's decision to withdraw his grievance from arbitration until "minutes before the arbitration was to begin." Beckman Aff. ¶ 13. He contends that by withdrawing the grievance, the Union "denied [him] the opportunity to have [his] legitimate claims against the [USPS] heard and to be reinstated to [his] former position." Id. Plaintiff therefore maintains that the Union "willfully refused to follow through with its undertaking to represent [plaintiff]," "despite the fact that strong arguments existed demonstrating a violation of the CBA." Id. ¶ 14. This action, he claims, evidences the Union's bad faith and its decision's arbitrary nature. Id.

Yet, it would appear that under the express terms of the CBA concerning seniority and duty assignments, the Union had ample justification for its decision not to pursue plaintiff's grievance, since there was no evidence that the USPS had breached the CBA. Plaintiff protests that when the USPS removed him from Assignment 131, it breached article 12, section 5.B.3 of the CBA. See Pl. Opp. Mem. at 10. This section states, in pertinent part: "No employee shall be allowed to displace, or `bump' another employee, properly holding a position or duty assignment." CBA art. 12, § 5.B.3 (emphasis added). Implicit in plaintiff's argument, therefore, is that his removal was somehow improper.

It is clear, however, that plaintiff was not properly holding the duty assignment at the time of the USPS's decision. Pursuant to article 12, section 2.B.2 of the CBA, plaintiff lost all of his accrued seniority with respect to the maintenance craft by holding the non-craft position for over two years.*fn10 See CBA art. 12, § 2.B.2. Because there were employees on the PER who were qualified for Assignment 131 and whose maintenance craft seniority exceeded plaintiffs, see Massey Dep. at 33; Johnson Dep. at 39-40, the USPS was contractually obligated to offer the assignment to employees on the PER before giving it to plaintiff. See Lingberg Decl. ¶ 13. Therefore, the USPS's removal of plaintiff from Assignment 131 was indeed proper, and hence the Union was correct in its determination that plaintiff's grievance was not meritorious. In fact, a contrary decision by the USPS would have violated the rights of more senior maintenance craft employees, possibly subjecting it to legitimate grievances. See CBA art. 38, §§ 2.F, 5.A.3.*fn11

Deposition testimony from various Union officials further confirms that the Union's decision to withdraw the grievance was based solely on its assessment that its advocates would be unable to obtain a remedy for plaintiff. For example, Charles Bembry, the Union's arbitration advocate, stated that he believed plaintiff's case was devoid of merit, and only certified the grievance for arbitration in the hope that his investigation would uncover "something . . . that might help [him] in arbitration." Bembry Dep. at 24. On November 28, 1995 — two weeks before the arbitrator was scheduled to hear the case — Bembry advised plaintiff that his grievance "wasn't a very strong case." Id. at 38. After consulting with the Union's Bulk Center Director, Ronald Massey, as well as other Union officials,*fn12 Bembry formally withdrew the grievance from arbitration. See id. at 40, 43. Massey confirmed that he advised Bembry to withdraw because, based on the relevant CBA provisions, he "believe[d] that [the Union] couldn't win [the case]." Massey Dep. at 72. Finally, Bembry explained that he did not inform plaintiff of the Union's decision until the morning of the scheduled arbitration because he had difficulty contacting him. See Bembry Dep. at 40, 45-46.

Based on the totality of the evidence, the Court finds that plaintiff has failed to show that the Union's decision "amounted to conduct and omissions `so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary.'" Barr, 868 F.2d at 43 (quoting NLRB v. Local 282, 740 F.2d 141, 147 (2d Cir. 1984)). Federal law does not give an employee an absolute right to have his grievance taken to arbitration, regardless of its merit under the applicable CBA. See Vaca, 386 U.S. at 191, 87 S.Ct. 903; Gold v. Local Union No. 888, 758 F. Supp. 205, 207 (S.D.N.Y. 1991). In Hines, the Supreme Court clarified the rationale underlying this rule:

`If the individual employee could compel arbitration of his grievance regardless of its merit,' that is, compel both employers and unions to make full use of the contractual provisions for settling disputes by arbitration, `the settlement machinery provided by the contract would be substantially undermined,' for curtailing the `power to settle the majority of grievances short of the costlier and more time-consuming steps' might deter the parties to collective-bargaining agreements from making `provi[sion] for detailed grievance and arbitration procedures of the kind encouraged by [the LMRA].'

Hines, 424 U.S. at 567, 96 S.Ct. 1048 (quoting Vaca, 386 U.S. at 191-92, 87 S.Ct. 903). Accordingly, the Second Circuit has held that "the duty of fair representation is not breached where the union fails to process a meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to error in evaluating the merits of the grievance." Cruz v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1153-54 (2d Cir. 1994); see also Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 130 (2d Cir. 1998); Ayala v. Union de Tronquistas de Puerto Rico, Local 901, 74 F.3d 344, 345-46 (1st Cir. 1996) ("[T]he duty of fair representation is not a straitjacket which forces unions to pursue grievance remedies under the collective bargaining agreement in every case where an employee has a complaint against the company. . . .").

Plaintiff has failed to "set forth concrete, specific facts from which one can infer a union's hostility, discrimination, bad faith, or arbitrary exercise of discretion." Spielmann v. Anchor Motor Freight, Inc., 551 F. Supp. 817, 822 (S.D.N.Y. 1982). There is no doubt that the USPS was justified in removing the plaintiff from Assignment 131, as the CBA clearly states that all assignments shall be based on seniority. The Union has the right to refuse to take any grievance to arbitration, so long as its decision is made in good faith. Absent evidence of bad faith or arbitrary conduct, the Union's interpretation of the CBA "should be afforded great deference." Morris v. Local 819, 954 F. Supp. 573, 580 (E.D.N.Y. 1997). Accordingly, plaintiff's conclusory allegations do not demonstrate a lack of good faith on the part of the Union, and thus fail to state a valid claim for relief.

2. Conflict of Interest

Plaintiff also insists that the Union improperly "gave preference to [John] Valez-Elias" over him and told plaintiff that its decision to withdraw the grievance was based on the existence of a "conflict of interest." Beckman Aff. ¶ 14. However, there is no evidence of such favoritism. Rather, by encouraging the USPS to allow all eligible employees to bid for the position, as required by the CBA, the Union did not advocate for any particular employee, but merely followed the procedures set forth by the CBA. Furthermore, all of the evidence suggests that the Union's decision not to pursue plaintiff's grievance was based entirely on its interpretation of the CBA and its assessment of plaintiff's chances of prevailing in the arbitration. See supra at 402-03.

Plaintiff's bare allegations of a conflict of interest cannot rise to the level of a breach of the duty of fair representation. As discussed above, the Court "cannot intercede on behalf of employees who may be prejudiced by a rationally founded decision [that] operates to their disadvantage." Helmer v. Briody, 721 F. Supp. 498, 504 (S.D.N.Y. 1989). In nearly every situation in which a union intervenes — or elects not to intervene — on behalf of one or more of its members, that decision will inevitably have negative repercussions for other union members. The Second Circuit has thus held that "[a] union's reasoned decision to support the interests of one group of employees over the competing interests of another group does not constitute arbitrary conduct." Spellacy, 156 F.3d at 129 (citing Haerum v. Air Line Pilots Ass'n, 892 F.2d 216, 221 (2d Cir. 1989); Jones v. Trans World Airlines, Inc., 495 F.2d 790, 798 (2d Cir. 1974)). "Indeed, `a union must necessarily, and without violating anyone's rights, represent employees who have antagonistic interests.'" Lettis v. USPS, 39 F. Supp.2d 181, 198 (E.D.N Y 1998) (quoting Johnson v. American Postal Workers Union, 102 L.R.R.M. 3089, 3091, 1979 WL 33357 (D.D.C. 1979)); see also Humphrey v. Moore, 375 U.S. 335, 349-350, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) (describing a union decision that involved "inevitably conflicting interests"). Accordingly, whether or not the Union faced a choice among competing interests, because its decision to withdraw the grievance was neither arbitrary nor undertaken in bad faith, this claim too must fail.

3. Failure to Provide Information

Finally, plaintiff maintains that the Union's delinquency in informing him that it had elected not to pursue his grievance and its refusal to provide an adequate explanation constitute a breach of the duty of fair representation. It is beyond cavil, however, that "[t]he failure to keep a grievant informed of the status of the grievance is not a breach of the duty of fair representation." Lettis, 39 F. Supp.2d at 197 (citing Caputo v. National Ass'n of Letter Carriers, 730 F. Supp. 1221, 1230 (E.D.N.Y. 1990)); see also Tracy v. Local 255, Int'l Union of Electronic, Elec., Technical, Salaried & Mach. Workers, 783 F. Supp. 1527, 1531 (D.Mass. 1992) ("[F]ailure of the union to provide information on the status of a grievance is not indicative of arbitrary behavior in the processing of the grievance itself. . . . Lack of communication, without more, is insufficient to evidence arbitrary or capricious processing of a claim.").*fn13 Moreover, plaintiff has not shown that the Union's delay or its alleged failure to provide an explanation for its decision in any way prejudiced him. See Yakowec v. Niagara Mohawk Power Corp., No. 92-CV-1130, 1993 WL 226435, at *17 (N.D.N.Y. Jun 24, 1993); see also Bazarte v. United Transp. Union, 429 F.2d 868, 872 (3d Cir. 1970) (finding that a union's failure to inform the plaintiff of its decision not to go forward with his case was insufficient to establish unfair representation where there was no showing of prejudice); Harrigan v. Caneel Bay, Inc., 745 F. Supp. 1122, 1128-29 (D.Vi. 1990) ("A union need not inform the employee of his or her grievance's progress or notify the employee that the organization's own effort toward a private resolution of the dispute has ended.") (citations omitted). Consequently, as these allegations also fail to state a claim upon which this Court may grant relief, the Union's motion for summary judgment shall be granted.

B. Breach of the Collective Bargaining Agreement

As previously discussed, see supra at 401, because the Union was plaintiff's exclusive bargaining agent, plaintiff must prove that the Union breached its duty of fair representation before the Court can even consider its allegations against the USPS. See DelCostello, 462 U.S. at 165, 103 S.Ct. 2281; Vaca, 386 U.S. at 186, 87 S.Ct. 903; Young, 907 F.2d at 307. "The `indispensable predicate' of a section [1208(b)] action against an employer is a `demonstration that the Union breached its duty of fair representation.'" Flanigan, 942 F.2d at 828 (quoting Mitchell, 451 U.S. at 62, 101 S.Ct. 1559). Thus, plaintiff's case against the USPS "cannot succeed, as a matter of law, in the absence of an essential element of their claim, namely, that the Union breached its duty of fair representation." White, 128 F.3d at 115. The USPS's motion for summary judgment is therefore granted and plaintiff's claim that the USPS breached the CBA shall be dismissed.

III. Plaintiff's Breach of Contract and Promissory Estoppel Arguments

For the first time in this litigation, plaintiff, in his memorandum of law opposing defendants' motion for summary judgment, asserts state law claims against the USPS for breach of contract*fn14 and promissory estoppel.*fn15 Both of which claims he maintains are independent from guarantees or protections provided for by the CBA. See Pl. Opp. Mem. at 12-14. Plaintiff essentially contends that triable issues of fact exist as to whether an separate and enforceable employment contract was formed by various promises the USPS allegedly made to induce him to relinquish his position as supervisor and return to the craft position he formerly held.*fn16

Nonetheless, plaintiff's Amended Complaint does not include a claim for breach of contract claim or, for that matter, any facts that can be construed as alleging the existence of a common law employment contract. See Fed.R.Civ.P. 8(a)(2). Nor does any passage in the Complaint suggest a cause of action for promissory estoppel. In fact, the Complaint is couched entirely in terms that imply a federal "hybrid" claim. Cf. Heaning v. Nynex-New York, 945 F. Supp. 640, 645 (S.D.N Y 1996) (Sotomayor, J.) (holding that the plaintiff's repeated references to the CBA undermined his argument that he had established a claim for breach of contract independent from the CBA).

Specifically, plaintiff invokes jurisdiction solely on the basis of the CSRA, 5 U.S.C. § 7101 et seq.,*fn17 and the PRA, 39 U.S.C. § 1201 et seq. See Am. Compl. ¶ 2. Neither provision, however, provides for federal jurisdiction over state common law claims such as these. Cf. Fed.R.Civ.P. 8(a)(1) (requiring that the complaint contain a short and plain statement of the grounds upon which federal jurisdiction depends). Moreover, in his Statement of Facts, plaintiff attests that upon being notified that he would be removed from Assignment 131, he "immediately objected to the [USPS] regarding said demotion and removal from the material handler position by reason of his status as a `protected employee.'" Am. Compl. ¶ 10 (emphasis added). He alleged that this action violated article 6.A.1 of the CBA. See id.; see also supra note 11. Consequently, his claim appears to be based solely on the CBA. See Am. Compl. ¶ 11 ("Pursuant to the terms of the [CBA] the plaintiff is entitled to his position as a material handler with the [USPS] as well as his seniority with the [USPS] dating to March 1975."); see also Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 28 (2d Cir. 1988) (holding that "references to the `collective bargaining process' left no doubt that the source [of the plaintiff's claim] was federal labor law"); Jay v. AT&T Corp., 187 F.3d 641, 1999 WL 506109, at *1 (8th Cir. 1999).

Indeed, the Complaint goes so far as to concede that, as a result of the Union's decision to withdraw his grievance from arbitration, "the plaintiff has no other remedies available to resolve this matter and therefore brings this claim before the Court for a just and proper determination." Id. ¶ 18 (emphasis added). This statement belies any suggestion that plaintiff ever had a claim based on either an oral contract with the USPS independent from the CBA, or representations made by the USPS upon which plaintiff relied to his detriment. Thus, the Complaint, already once amended, cannot be construed to contain a claim for breach or contract or promissory estoppel, as such claims would obviously represent remedies available outside the arbitration process.

The pleading requirements of the Federal Rules of Civil Procedure are designed to provide defendants "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although a complaint need not correctly plead every legal theory supporting the claim, see Newman v. Silver, 713 F.2d 14, 16 n. 1 (2d Cir. 1983); Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 711 n. 4 (2d Cir. 1980), at the very least, plaintiff must set forth facts that will allow each party to tailor its discovery to prepare an appropriate defense. Because a failure to assert a claim until the last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that "it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment." Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997); see also Caribbean Wholesales & Serv. Corp. v. U.S. JVC Corp., 963 F. Supp. 1342, 1359 (S.D.N.Y. 1997) (Leisure, J.) ("[Plaintiff] in effect is apparently attempting to add a claim never addressed, or even hinted at, in the complaint. Such a step is inappropriate at the summary judgment stage, after the close of discovery, without the Court's leave, and in a brief in opposition to a motion."); Harvey v. New York City Police Dep't, 93 Civ. 7563, 1997 WL 292112, at *2 n. 2 (S.D.N Y June 3, 1997); Allen v. West Point-Pepperell, Inc., 908 F. Supp. 1209, 1224 (S.D.N.Y. 1995); Coppola v. Connecticut Student Loan Found., No. Civ. A. N-87-398, 1989 WL 47419, at *3 n. 14 (D.Conn. Mar. 2, 1989) (Cabranes, J.). Accordingly, this Court will not consider claims not pleaded in the Complaint. See Yerdon v. Henry, 91 F.3d 370, 370 (2d Cir. 1996); McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 697-98 (S.D.N Y 1999); O'Rourke v. Pitney Bowes, Inc., No. 95 Civ. 10288, 1997 WL 431091, at *11 n. 17 (S.D.N.Y. July 31, 1997); McNeil v. Aguilos, 831 F. Supp. 1079, 1086-87 (S.D.N.Y. 1993), aff'd, 107 F.3d 3 (2d Cir. 1996).

Ordinarily, this Court would be amenable to a motion for leave to further amend the Amended Complaint to assert these newly-conceived claims.*fn18 See Neri v. Coughlin, No. 92 Civ. 7890, 1993 WL 464687, at *7 (S.D.N.Y. Nov. 9, 1993) (Sotomayor, J.). However, "[l]eave to amend a complaint will generally be denied when the motion to amend is filed solely in an attempt to prevent the Court from granting a motion . . . for summary judgment, particularly when the new claim could have been raised earlier." Berman v. Parco, 986 F. Supp. 195, 217 (S.D.N Y 1997); see also Ansam Assocs., Inc. v. Cola Petro., Ltd., 760 F.2d 442, 446 (2d Cir. 1985); Barrows v. Forest Labs., Inc., 742 F.2d 54, 58-59 (2d Cir. 1984); PI, Inc. v. Quality Products, Inc., 907 F. Supp. 752, 764-65 (S.D.N.Y. 1995); CL-Alexanders Laing & Cruickshank v. Goldfeld, 739 F. Supp. 158, 166-67 (S.D.N.Y. 1990); Reisner v. General Motors Corp., 511 F. Supp. 1167, 1172 (S.D.N.Y. 1981), aff'd, 671 F.2d 91 (2d Cir. 1982). It is evident that plaintiff concocted these contract law theories simply to avoid defendants' meritorious summary judgment motions. See PI, Inc., 907 F. Supp. at 765; CL-Alexanders, 739 F. Supp. at 166. Accordingly, the Court will not consider the merits of these contentions within the context of the instant motions. Plaintiff's opposition brief thus raises no issues that can preclude summary judgment on any valid claim.*fn19


For the foregoing reasons, defendants' motions for summary judgment are HEREBY GRANTED. The Clerk of the Court shall enter judgment dismissing the Amended Complaint in its entirety.


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