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Sharon L. Cross v. John E. Potter

December 20, 2010

SHARON L. CROSS, PLAINTIFF,
v.
JOHN E. POTTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Sharon Cross commenced the instant action against Defendants claiming that she was wrongfully terminated from her employment with the United States Postal Service ("USPS") and that Defendant American Postal Workers Union (the "Union") handled her grievance with bad faith, negligence, lack of proper investigation, and failed to properly represent her.

I. FACTS *fn1

Plaintiff was an employee with the USPS. On December 14, 2007, the United States Attorneys Office filed an Information against Plaintiff charging her with filing false medical documentation with the United States Postal Service in violation of 18 U.S.C. § 1018. See United States v. Cross, 07-cr-563, dkt. no. 7 (N.D.N.Y.). On January 14, 2008, the USPS sent Plaintiff a Notice of Removal informing her that her employment with the USPS would be terminated effective February 23, 2008 for "[s]ubmitting falsified medical documentation" in support of claims for leave from her employment. See Union Ex. 2; *fn2 Am. Compl. at ¶ 8. On December 4, 2008, after a jury trial, Plaintiff was acquitted of the charges against her. See United States v. Cross, 07-cr-563, dkt. nos. 49, 50. Despite the acquittal in the criminal case, the USPS continued its efforts to remove Plaintiff from her position.

Under the Collective Bargaining Agreement, grievances that involve disciplinary action against an employee are filed at the local union level by union stewards or the employee. See Union Ex. 1. The local union filed a grievance on Plaintiff's behalf.

See Timmerman Aff. at ¶ 4. The Union represented Plaintiff at steps 1 and 2 *fn3 of the grievance process. Id. The USPS denied the grievance at both steps. *fn4 Id.

Elizabeth Swigert, a National Business Agent fo the Union, represented the Union at the Step 3 grievance meeting. Id. at ¶ 5; Union Ex. 3. The Union contended that there was no just cause for Plaintiff's removal. Id. Plaintiff's grievance was denied at step 3. Id. *fn5

The Union then appealed Plaintiff's grievance to the final step of the grievance procedure -arbitration. Timmerman Aff. at ¶ 6; Union Ex. 4. Bernie Timmerman was assigned by the Union to represent the Union at the arbitration hearing. Id.

On April 15, 2009, Timmerman mailed Plaintiff a letter by certified and regular mail informing her that he would be handling her arbitration hearing scheduled for April 21, 2009. Id. Timmerman advised Plaintiff that it was very important that she contact him to prepare for the hearing. *fn6 Id. Plaintiff did not respond to the letter. Timmerman Aff. at ¶ 8. *fn7

The arbitration hearing was held on April 21, 2009. Timmerman appeared at the hearing, but Plaintiff did not. Id. At the hearing, it was determined to give Plaintiff ten days to explain why she was unable to attend the hearing. Id. at ¶ 9; Union Ex. 8 at p. 2. Timmerman sent Plaintiff a letter stating, in part, that:

The hearing took place today involving case number: B06C-1B-D 08102867, which is the grievance for your removal. Letters were sent to you on April 4, 2009 and April 15, 2009 regarding the April 21, 2009 arbitration hearing and you failed to respond to those notifications. It is imperative that you respond within ten (10) days by letter explaining the reason you were unable to attend the arbitration hearing. . . . Your response will be shared with the arbitrator. . . . I cannot express enough the importance of responding to this letter. However, I must also inform you that, if you fail to respond within the ten (10) days, the arbitrator will dismiss your case. *fn8 Timmerman Aff. at ¶ 9; Union Ex. 5.

By letter dated April 29, 2009, Plaintiff sent a letter to Timmerman stating, in part that:

This letter is written to request that you as the President of the Central NY Area Local #257 American Postal Workers Union AFL-CIO zealously represent me in the grievance ...


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