United States District Court, S.D. New York
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
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.
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)
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 APWU at the
arbitration. (Light Decl. Ex. B, at 2) Based on the facts presented in
Blake's complaint and its attachments, it is apparent that Blake was not
a party to the arbitration.
Blake next argues that she has standing to challenge the arbitration
proceeding because the APWU breached its duty of fair representation to
her.*fn3 (Plaintiff's Supplemental Memorandum in Opposition to
Defendants' Motion to Dismiss (*P1. Supp. Memo.") at 5-8) A union
breaches its duty of fair representation when it seriously undermines the
arbitral process by engaging in conduct that is arbitrary,
discriminatory, or in bad faith. Mack v. Otis Elevator Co.,
326 F.3d 116, 129 (2d Cir. 2003). According to Blake, the APWU breached its
duty to her by depicting her as the aggressor during Figueroa's
arbitration, which in turn compromised her ability to prevail at her own
arbitration.*fn4 (Am. Compl. at 3; Pl. Supp. Memo, at 5-6) However, Blake has failed to allege any facts which suggest that
this APWU conduct was arbitrary, discriminatory, or in bad faith.
Blake first attempts to characterize as discriminatory the APWU's
decision to side with Figueroa at his arbitration (Pl. Supp. Memo, at
5-6), but her allegations do not support this contention. None of the
facts that Blake alleges suggest that the APWU treated her different
from the way it treated Figueroa or other union members, let alone
discriminated against her. Although the APWU did argue at Figueroa's
arbitration that Blake was the attacker in the altercation
(See Am. Compl. Ex. D, at 3-4), Blake does not dispute that
the attorneys who represented the APWU at both of her arbitrations
attempted to portray Figueroa as the aggressor. (See Am.
Compl. at 2-3; Am. Compl. Ex. C., at 7; Am. Compl. Ex. E, at 4-5) Blake
has not alleged that the APWU's allegedly objectionable conduct
acting as her advocate in her own arbitration while criticizing her in
its separate defense of another union member was different from
the treatment that Figueroa received, or that any other union member in
the same circumstances would have received. Absent any facts that
suggest different treatment, let alone discriminatory intent, I cannot find the APWU's actions to be discriminatory.
Blake argues in the alternative that the APWU acted in bad faith by
depicting her as the attacker during Figueroa's arbitration, but again
the facts fail to support this contention. "Bad faith requires a showing
of fraudulent, deceitful, or dishonest action." Sim v. New York
Mailers' Union Number 6. 166 F.3d 465, 472 (2d Cir. 1999).
Blake does not identify any facts in her complaint or its exhibits that
give rise to an inference of bad faith on the part of the APWU, and
instead she seeks to amend her complaint by attaching two additional
exhibits: (1) a September 13, 2001, letter from Blake to APWU President
William Smith, in which Blake complained that APWU Shop Steward Jimmy
Perez was siding with Figueroa against her, and (2) an October 2, 2001,
response to Blake from APWU Shop Steward August Mayer, Jr. (PI. Supp.
Memo, at 6; Affidavit of Barbara Blake ("Blake Aff."), Exs. A, B))
According to Blake, Mayer's letter, which assured her that "the union is
going to take a neutral view of both [Blake] and the other grievant Mr.
Figueroa" (Blake Aff. Ex. B, at 1), shows that the APWU acted in bad
faith when it sided against her at Figueroa's arbitration less than two
months later. (Pi. Supp. Memo, at 6) I disagree. Contrary to Blake's
assertions, Mayer's letter does not demonstrate that the APWU acted in
bad faith because Mayer's assurances of neutrality are wholly consistent
with the APWU's conduct. The APWU did remain neutral; it defended both grievants at their respective
arbitrations and mounted vigorous defenses for each that included
inculpating the other party. None of the facts that Blake has alleged
indicate that the APWU gave preferential treatment to Figueroa in any way
or did anything else that betrayed a lack of neutrality as between Blake
and Figueroa. Because the facts, as alleged by Blake, reveal that the
APWU took no sides as between Blake and Figueroa, Mayer's letter does not
provide any evidence of bad faith, and Blake's request to amend her
complaint to attach these letters therefore is denied.
Blake does not allege any other facts that give rise to an inference
that the APWU breached its duty of fair representation by engaging in
conduct that was arbitrary, discriminatory, or in bad faith. Because
Blake thus cannot show that the APWU provided her with unfair
representation during the arbitration proceedings, she lacks standing to
challenge the November 6, 2002, arbitral award that resulted from
arbitration between the USPS and the APWU. See Katir, 15 F.3d
at 24-25. Accordingly, Blake's claims must be dismissed on that basis,
and I need not address defendants' other arguments in favor of dismissal. For the reasons stated above, defendants' motion to dismiss is granted,
Blake's motions to vacate the arbitration award and furtheramend her
complaint are denied, and Blake's amended complaint is dismissed.