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Johnson v. United States Postal Service

United States District Court, E.D. Michigan, Southern Division

September 11, 2017



          Paul D. Borman United States District Judge.

         This action was brought by Plaintiff Kevin Tyrone Johnson against the United States Postal Service (“USPS”), his former employer, and the American Postal Workers Union (“APWU”), [1] his former union. Plaintiff was removed from his employment after USPS determined that he violated his probationary “Last Chance Agreement” by incurring too many unexcused absences, and that removal was upheld in arbitration. Plaintiff filed suit on November 7, 2016. (ECF No. 1.) He then filed an Amended Complaint on March 1, 2017, replacing original Defendant American Postal Workers Union with current Defendant American Postal Workers Union Holding Company. (ECF No. 16.) The Amended Complaint asserts three claims: one against USPS for breach of the CBA (Count I); one against USPS for discriminatory termination (Count II); and one against APWU for breach of the duty of fair representation (Count III).

         Three Motions are now before the Court: separate Motions to Dismiss the two counts (Count I and Count III) that make up Plaintiffs hybrid claim filed by USPS and APWU, as well as USPS's Motion for Summary Judgment on Plaintiffs discriminatory termination claim (Count II), filed early with the Court's leave. Each Motion attacks the count at which it is aimed on untimeliness grounds, and each has merit. For his part, Plaintiff has not justified equitable tolling of the limitations period as to his hybrid claim, and has not directly and sufficiently responded to USPS's Motion for Summary Judgment on Count II. The Court will therefore grant all three Motions and dismiss the case.

         I. BACKGROUND

         Plaintiff began working for USPS in January of 1996. At all relevant times he worked as a Laborer Custodian at the Michigan Metroplex Processing and Distribution Center in Detroit, Michigan. (ECF No. 16, Am. Compl. ¶ 1.) The terms of Plaintiff's employment were governed by a Collective Bargaining Agreement (“CBA”), supplemented by an Employee and Labor Relations Manual (“ELM”). (Am. Compl. ¶ 4.)

         USPS issued Plaintiff a removal notice in September 2013. (Am. Compl. ¶ 10.) Plaintiff and USPS then entered into a December 2, 2013 “Last Chance Agreement” (“LCA”) through which Plaintiff could save his job. (Id.; Am. Compl. Ex. A, Last Chance Agreement at 3, Pg ID 138.) The LCA provided that the removal would be held in abeyance for a one-year probationary period, and that if Plaintiff fully complied with the LCA during that period, he would then continue with his employment as though the LCA had never existed. (Am. Compl. Ex. A, Last Chance Agreement at 4-5, Pg ID 139-40.) Among other things, the LCA required that Plaintiff “maintain regular attendance, ” defined as “incur[ring] no more than three unscheduled, non-FMLA absences within any period of ninety (90) consecutive days during the term of this agreement.” (Am. Compl. ¶ 11; Am. Compl. Ex. A, Last Chance Agreement at 4, Pg ID 139.)

         On April 6, 2014, USPS reinstated Plaintiff's removal, alleging that he violated the “regular attendance” provision of the LCA by missing work on December 12, 2013; on January 16, 2014; on March 10, 2014; and on March 11, 2014. USPS also alleged that he was tardy on December 31, 2013; on January 21, 2014; and on January 23, 2014. (Am. Compl. ¶ 12.) Plaintiff alleges that at all relevant times, he had “two Family Medical Leave Act [claims] open which provided to him up to 12 weeks of unpaid leave during a 12 month period, either of which was sufficient to make any absence on December 12, 2013 and January 16, 2014 an FMLA absence and therefore not a violation of the LCA.” (Am. Compl. ¶ 13.)

         In April 2014, APWU initiated grievance proceedings to challenge this removal decision. After the grievance was unsuccessful at the first two stages, an arbitration was held on May 20, 2014. Plaintiff alleges, however, that at no point throughout these proceedings did APWU file a grievance related to the “denial of FMLA leave” that Plaintiff alleges USPS committed by removing him for absences on what should have been FMLA leave days. (Am. Compl. ¶ 14-16.)

         A decision on the arbitration was issued on April 13, 2015. (Am. Compl. Ex. B, Arbitration Decision.) Finding that USPS had “established its case by clear and convincing evidence, ” Arbitrator Betty Widgeon denied the grievance in its entirety. (Id. at 17, Pg ID 152.)

         On June 27, 2014, Plaintiff filed a complaint with USPS's Equal Employment Opportunity (“EEO”) department, alleging race and gender discrimination. (ECF No. 32, Def. USPS's Mot. Summ. J. Ex. 1A, Formal Complaint of Discrimination.) That complaint was dismissed on December 17, 2014. (Def. USPS's Mot. Summ. J. Ex. 1B, Final Agency Decision.) Cheryl Hendon, an EEO Services Analyst for USPS (and the individual who signed the dismissal of Plaintiff's EEO complaint) averred in a sworn declaration that she processed and mailed the dismissal to Plaintiff on December 17, 2014. (Def. USPS's Mot. Summ. J. Ex. A, Declaration of Cheryl Hendon ¶ 7.) Hendon also averred that based on her searches of USPS's EEO records, Plaintiff did not appeal the dismissal or file any subsequent complaints. (Hendon Decl. ¶¶ 2-3, 8-9.)

         On February 13, 2017, USPS filed what was essentially a “hybrid” motion seeking dismissal of Count I and summary judgment on Count II. (ECF No. 9.) The Court initially dismissed the motion for summary judgment without prejudice, citing this Court's Practice Guidelines, which state that summary judgment motions will not be entertained prior to the close of discovery absent special circumstances. (ECF No. 14.)

         The instant Motions to Dismiss were filed by USPS and APWU on March 15 and March 22 of 2017, respectively. (ECF No. 22, Def. USPS's Mot. Dismiss; ECF No. 25, Defendant APWU's Mot. Dismiss.) Plaintiff filed a combined Response on April 5, 2017.[2] (ECF No. 27, Pl.'s Resp.) Both Defendants filed timely reply briefs on April 17, 2017. (ECF No. 29, Def. APWU's Repl. Br. Supp. Mot. Dismiss; ECF No. 30, Defendant USPS's Repl. Br. Supp. Mot. Dismiss.)

         The Court granted USPS's motion for leave to file an early summary judgment motion. (ECF No. 31.) Thereafter, USPS filed the instant Motion for Summary Judgment. (ECF No. 32, Def. USPS's Mot. Summ. J.)

         The Court held a hearing on both Motions to Dismiss on June 8, 2017, and then a separate hearing on USPS's Motion for Summary Judgment on July 31, II. LEGAL STANDARDS

         A. Motion to Dismiss

         Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012).

         To state a claim, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he complaint ‘does not need detailed factual allegations' but should identify ‘more than labels and conclusions.'” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539 (internal citations and quotation marks omitted).

         In other words, a plaintiff must provide more than “formulaic recitation of the elements of a cause of action” and his or her “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. The Sixth Circuit recently reiterated that “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         A court ruling on a Rule 12(b)(6) motion to dismiss “may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Natl Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).

         B. Motion for Summary Judgment

         Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). “A fact is ‘material' for purposes of a motion for summary judgment where proof of that fact ‘would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich. 2013) (Borman, J.) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         “In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353 F.3d 510, 513 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must produce enough evidence to allow a reasonable jury to find in his or her favor by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere possibility' of a factual dispute does not suffice to create a triable case.” Combs v. Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)). That evidence must be capable of presentation in a form that would be admissible at trial. See Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir. 2009).


         Defendants challenge each of the three claims asserted in this action on similar procedural grounds: each claim was filed after the applicable time limitations period had expired, and is therefore time-barred. Defendants' arguments are persuasive; Plaintiff has not persuaded the Court that equitable tolling of the limitations period should be applied.

         While Plaintiff failed to separately respond to USPS's Motion for Summary Judgment on Count II, his initial generalized response to all three motions does not provide a basis for rejecting USPS's Motion for Summary Judgment. Accordingly, the Court will grant all three of Defendants' Motions, and dismiss Counts I and III ...

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