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