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BLAKE v. POTTER

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 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 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.

  SO ORDERED.


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