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BLAKE v. POTTER

April 12, 2004.

BARBARA BLAKE, Plaintiff, -against- JOHN E. POTTER, POSTMASTER GENERAL, and U.S. POSTAL SERVICE, Defendants


The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District

OPINION AND ORDER

Barbara Blake, acting pro se, sues Postmaster General John E. Potter and the U.S. Postal Service ("USPS"), her former employer, pursuant to § 10 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. (2000), and § 301 of the Labor Management Relations Act*fn1 ("LMRA"), 29 U.S.C. § 185. Blake moves for an order vacating a November 6, 2002, arbitral award issued following arbitration between the USPS and her union, the American Postal Workers Union ("APWU"), in which the arbitrator upheld the USPS's decision to remove Blake from her USPS position on January 11, 2002. Defendants move to dismiss Blake's claim under Fed.R. Civ. 12(b)(1) and (6), and Blake, who is represented by an attorney for the purposes of this motion, seeks to amend her complaint by attaching additional exhibits. For the reasons set forth below, Blake's motions are denied, defendants' motion to dismiss is granted, and Blake's amended complaint is dismissed. I.

  The following facts, which are accepted as true for the purposes of this motion, are alleged in Blake's complaint and its attached exhibits.

  Barbara Blake was employed by the USPS for 22 years. (Amended Complaint ("Am. Compl.") at 10) Between December 2000 and August 2001, Blake made a series of written complaints to USPS officials about problems she was having with coworkers and supervisors. (See Am. Compl. Exs. F, G, H I) One of the coworkers about whom Blake complained was Carlos Figueroa; Blake objected to "offensive and overt homosexual activities" that Figueroa allegedly engaged in at work, and she also believed that Figueroa was attempting to threaten and intimidate her. (Am. Compl. Ex. H, at 1) Blake informed supervisor Otis Simmons about these concerns. (Id. at 1-2) When she found Simmons's response unsatisfactory, she wrote a letter of complaint about Simmons to manager Louis Puccio. (Id.) When Puccio's response to the situation again failed to satisfy Blake, she wrote a letter to senior plant manager Robert Daruk complaining about Simmons and Puccio. (Am. Compl. Ex. I, at 1-2)

  On August 18, 2001, Blake was working at the Bronx USPS Processing and Distribution Center. (Am. Compl. Ex. C, at 2) At approximately 1:30 a.m., Blake, her friend Darnell Vassel, and Figueroa punched out for the evening. (Am. Compl. Ex. B, at 3) Blake and Vassal were descending the stairs when Figueroa rushed past Blake and jostled her in some way. (Id.; Am. Compl. Ex. C, at 8) Although the parties dispute the precise chain of events that ensued, everyone agrees that Blake and Figueroa became involved in a physical altercation in the stairwell. (Am. Compl. Ex B, at 3; Am. Compl. Ex. C, at 8) As a result of the altercation, both Blake and Figueroa were immediately placed in off-duty status. (Am. Compl. Ex. C, at 2-3) Both Blake and Figueroa were members of the American Postal Workers Union ("APWU"). (Id. at 1; Am. Compl. Ex. D, at 1)

  On November 23, 2001, Blake was issued a letter of removal, effective January 11, 2002, permanently removing her from her USPS job because of the altercation with Figueroa. (Am. Compl. Ex. C, at 3) Figueroa, by contrast, was not permanently removed from his job. (Id. at 4) An arbitration hearing was held between the USPS and the APWU on November 28, 2001, to determine whether Figueroa's emergency placement in off-duty status had been appropriate. (Am. Compl. Ex. D, at 1-2) At this hearing, APWU representatives informed arbitrator Wellington J. Davis, Jr., that Blake was the aggressor in the altercation and had attacked Figueroa. (Id. at 3-4; Am. Compl. at 3) On January 19, 2002, Davis found that Figueroa's emergency placement in off-duty status was justified but that Figueroa should have been returned to work on the first available day after October 17, 2001, because Blake was the aggressor and bore major responsibility for the altercation. (Am. Compl. Ex. D, at 2, 4-5)

  On February 28, 2002, an arbitration hearing was held between the USPS and the APWU to determine whether Blake's emergency placement in off-duty status was for just cause. (Am. Compl. Ex. E, at 3) At the hearing, APWU representatives argued that the USPS had ignored Blake's repeated complaints of harassment by Figueroa, and the APWU also highlighted Vassel's identification of Figueroa as the aggressor in the incident. (Id. at 4-5) Arbitrator Thomas J. Fritsch issued his decision on April 4, 2002, finding that Blake's emergency placement was justified but that Blake should receive some compensation for wages lost before January 11, 2002, the effective date of her removal. (Id. at 7-8)

  On June 13, 2002, Blake asked the APWU to permit her to retain outside legal counsel, Lloyd Somer, to represent the APWU at the pending arbitration over her removal. (Am. Compl. Ex. C, at 4) Pursuant to this request, Blake and Somer signed two waiver conditions relating to this representation. (Id.) By signing her waiver, Blake agreed to (1) pay all costs and fees associated with Somer's representation, and (2) waive "any and all claims" against the APWU and its officials "related to or in any way concerning this grievance."*fn2 (Declaration of Sarah E. Light ("Light Decl."), Ex. B, at 2) By signing his waiver, Somer agreed in relevant part that: (1) he would be representing the APWU at the arbitration hearing; (2) he had a duty to fairly represent Blake; and (3) he understood that Blake had waived any and all claims she might have against the APWU or its officers related to this grievance. (Id.) On June 28, 2002, the APWU agreed that Blake could retain outside representation at her own expense for the arbitration. (Am. Compl. Ex. C, at 4)

  On September 4 and 6, 2002, an arbitration hearing was held between the USPS and the APWU to determine whether the USPS had just cause to remove Blake from her job. (Id. at 2) Somer, the outside attorney whom Blake had retained, was the only lawyer to appear on behalf of the APWU at the arbitration. (Id. at 1) Blake testified at the hearing, informing the arbitrator that Figueroa had assaulted her and opining that management was "100% responsible" for the altercation because it had not adequately responded to her complaints about Figueroa. (Id. at 7, 11) Figueroa did not testify at the hearing, but — over Somer's objections — the arbitrator considered the testimony Figueroa had given at his own arbitration, in which Figueroa claimed that Blake had been the aggressor. (Am. Compl. at 2-3)

  On November 6, 2002, arbitrator Roger E. Maher issued his award, in which he found that the USPS had just cause for Blake's removal. (Am. Compl. Ex. C, at 1) In reaching this decision, the arbitrator concluded that Blake was the aggressor in the August 18, 2001, fight, which he described as follows. (Am. Compl. Ex. C, at 8) Blake and Vassel were descending the stairs when Figueroa passed them, jostling Blake. (Id.) Blake reflexively slapped Figueroa's hand when he made contact with her, and Figueroa turned around and asked Blake why she hit him. (Id.) An argument ensued, and Blake kicked Figueroa several times in the stomach and scratched the bridge of his nose, causing him to bleed heavily. (Id.) Vassel then intervened to prevent further contact between them, and postal police officer Sgt. George Santiago arrived moments later and separated the two combatants. (Id.)

  Blake, acting pro se, filed this action on January 31, 2003, and moved for an order vacating the November 6, 2002, arbitration. (Am. Compl. at 1-11)

  II.

  Defendants argue that this action should be dismissed because Black lacks standing to challenge the outcome of an arbitration to which she was not a party. (See Memorandum of Law in Support of the Government's Motion to Dismiss at 9-11) "If there is no claim that the union breached its duty of fair representation, an individual employee represented by a union generally does not have standing to challenge an arbitration proceeding to which the union and the employer were the only parties." Katir v. Columbia Univ., 15 F.3d 23, 24-25 (2d Cir. 1994) (per curiam). Blake contends that she does have standing to bring this action, arguing both that she was a party to the arbitration and, in the alternative, that the APWU breached its duty of fair representation in the arbitration. As discussed in more detail below, I reject both of Blake's arguments and conclude that she lacks standing to press this action.

  In her first set of reply papers, filed pro se, Blake argued that she was in fact a party to the arbitration because she had a "conflict of interest" with the APWU and felt compelled to hire an outside attorney to represent the APWU at the arbitration over her removal. (Plaintiff's Reply at 1-2) Since retaining an attorney, Blake has abandoned the contention that she was an arbitral party, and with good cause: the caption on the November 6, 2002, arbitration award plainly lists the arbitral parties as the USPS and the APWU, while Blake is described only as "grievant." (Am. Compl. Ex. C, at 1) Furthermore, Blake and Somer each indicated in their signed waivers that they understood that Somer would be representing the ...


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