The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Truhlar ("Plaintiff"), a former letter carrier with the United States Postal Service ("USPS"), was terminated in October 2005 for allegedly failing to report outside income on disability claim compensation forms he completed in 2000. In this action against the USPS and Defendant John Grace Branch No. 825 ("Branch 825") of the National Association of Letter Carriers ("NALC") under Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, Plaintiff alleges that the USPS terminated him without just cause, and that Branch 825 violated its statutory duty of fair representation by failing to pursue a grievance filed in 2001 and/or refusing to file a new grievance after Plaintiff's 2005 termination. Branch 825 and the USPS (collectively, "Defendants") move to dismiss Plaintiff's complaint as untimely. For the reasons explained below, Defendants' motions are denied.
Plaintiff, a resident of Berwyn, Illinois, was an employee of Defendant USPS from 1984 until September 23, 2005. (Compl. ¶ 2, 4.) During this time, Branch 825 was the certified collective bargaining unit for USPS employees, including Plaintiff, employed at the USPS facility in Westmont, Illinois. (Id. ¶ 5.) A collective bargaining agreement between Branch 825 and the USPS (the "National Agreement") covered these employees, including Plaintiff, and was in effect at all times relevant to this litigation. (Id. ¶ 6.) The National Agreement*fn2 provides that "[n]o employee may be disciplined or discharged except for just cause." (Id. ¶ 9.)
On November 11, 2001, Branch 825, on behalf of Plaintiff, filed a grievance (the "November 2001 Grievance") following Plaintiff's receipt of what he calls a "Notice of Personnel Action" (the "November 2001 Notice") from the USPS. (Id. ¶ 7; NALC Grievance Worksheet, Ex. A to Compl.) The November 2001 Notice, dated November 9, 2001, was in fact titled "Notice of Removal" and informed Plaintiff that he would "be removed from the Postal Service no sooner than thirty (30) calendar days from the date of this notice" based on a charge of "Unacceptable Conduct as Evidenced by [Plaintiff's] Failure to Disclose Pertinent Information of [sic] Department of Labor Form CA-7." (November 2001 Notice, Ex. 1 to Memorandum of Law in Support of Motion to Dismiss of National Association of Letter Carriers Branch 825 ("Branch 825 Mem").*fn3 ) Beginning in August 2000, Plaintiff had been receiving partial disability benefits as the result of injuries sustained in a 1998 mail truck accident. (Id.) The Notice charges that after the approval of his application for those benefits, Plaintiff had received $8,885.00 in compensation from employment with a music group called "BANG" from March 2000 through December 2000; but on Department of Labor compensation claim forms he completed during this time, Plaintiff had answered "no" when asked if he had "worked outside [his] federal job."*fn4 (Id.) According to the USPS, this violated several provisions of its Employee and Labor Relations Manual, thus constituting grounds for removal. (Id.) The November 2001 Grievance filed by Branch 825 sought rescission of the Notice. (NALC Grievance Worksheet, Ex. A to Compl.) According to the grievance worksheet, the USPS denied this request on or about November 21, 2001, after a "Step 1 Meeting", for the reason that "the seriousness of [Plaintiff's] actions warrant dismissal."*fn5 (Id.)
On February 25, 2002, following a "Step 2" meeting, Branch 825 and the USPS entered into a "Grievance Settlement" in which the parties agreed to "hold in abeyance" any further action on Plaintiff's November 2001 Grievance "pending disposition of charges brought against [Plaintiff] by the office of the United States Attorney on a related matter." (Compl. ¶ 8; Grievance Settlement, Ex. B to Compl.) Although neither the complaint nor the Grievance Settlement identify those charges, Plaintiff, in an October 2005 letter to the NALC, acknowledged that the U.S. Attorney was investigating whether Plaintiff intentionally defrauded the government by failing to disclose his extracurricular income. (Truhlar Letter, Ex. 2 to Branch 825 Mem.) Plaintiff alleges in his complaint that the U.S. Attorney "later dismissed all charges against" him, and that "[a]ll claims initiated by the [USPS] against Plaintiff, and brought before federal agencies were resolved in Plaintiff's favor." (Compl. ¶ 8.) The complaint does not indicate when the federal charges were dropped, nor does it explain what is meant by "claims . . . brought before federal agencies." (Id.) Plaintiff's letter to the NALC, however, states that his attorney informed him in July 2005 that the U.S. Attorney would not "pursue the criminal charges" against him. (Truhlar Letter, Ex. 2 to Branch 825 Mem.)
On October 17, 2005, Plaintiff received what the complaint labels a "Notice of Removal" dated September 23, 2005 (the "September 2005 Notice"). (Compl. ¶¶ 4, 10.) Paradoxically, this document is in fact titled "Notice of Personnel Action"; it lists "removal" as the specific personnel action in a box at the bottom of the page. (September 2005 Notice, Ex. C to Compl.) Like the November 2001 Notice, the September 2005 Notice cites "unacceptable conduct" arising from Plaintiff's "failure to disclose pertinent information" on Form CA-7. (Id.) Unlike the previous Notice, which runs three pages and contains a detailed narrative of Plaintiff's alleged failure to report outside income, the September 2005 notice is a single page that provides no explanation of the reason for Plaintiff's removal beyond the above statement. (Id.)
Plaintiff's employment status with the USPS leading up to his receipt of the September 2005 Notice is unclear. As noted, the November 2001 communication is titled "Notice of Removal" and informs Plaintiff that he "will be removed." (November 2001 Notice, Ex. 1 to Branch 825 Mem.) Plaintiff does not construe this as a notice of termination, however, instead alleging in the complaint that the November 2001 Notice had "resulted in Plaintiff being placed on Emergency Placement on Off-Duty Status." (Compl. ¶ 7.) He refers to the November 2001 Notice not as a notice of removal, but as a "Notice of Personnel Action", (id.), even though that language does not appear on that document; indeed, as noted, it is the September 2005 Notice that is labeled "Notice of Personnel Action." Further clouding the issue, Plaintiff, in an affidavit attached to his opposition brief, states that he was in fact placed on "Emergency Placement Status" as of June 2001, which had resulted in his "being placed on indefinite unpaid suspension" at that time.*fn6 (Truhlar Aff. ¶ 7, Ex. 1 to Pl.'s Resp.) The February 2002 Grievance Settlement contains, in a field under Plaintiff's name labeled "Description", the phrase "Emergency Placement in Off-Duty Status." (Grievance Settlement, Ex. B to Compl.) It is thus unclear whether Plaintiff's "removal" in November 2001 constituted a termination from his then-current off-duty status, but that the termination had somehow been stayed when Branch 825 filed its grievance; or whether-as Plaintiff alleges in his complaint-the November 2001 Notice itself resulted in his placement on off-duty status.
For its part, Branch 825 asserts that Plaintiff was terminated in November 2001. (Reply Memorandum of Law in Further Support of the Motion to Dismiss of the National Association of Letter Carriers Branch 825 ("Branch 825 Reply"), at 5.) Noting that the September 2005 Notice lists Plaintiff's "last day in pay status" as June 26, 2001, (September 2005 Notice, Ex. C to Compl.), Branch 825 asserts that the USPS merely "re-issued" the November 2001 Notice in 2005, upon completion of the U.S. Attorney's investigation. (Branch 825 Reply, at 6.) Branch 825 does not, however, explain why re-issuance was necessary. For purposes of this motion, the court accepts as true Plaintiff's allegation that he was placed on off-duty status in 2001 and terminated in 2005; the court notes, however, that the November 2001 Notice, which is properly before the court as part of the pleadings, is somewhat contradictory in that it suggests Plaintiff was "removed" at that time.
After receiving the September 2005 Notice, Plaintiff alleges that "in October 2005" he "protested to [Branch 825] representatives Eric Smith and Rich Treonis, and to the [NALC] regarding their failure to pursue the grievance against the [USPS]." (Compl. ¶ 11.) The complaint does not indicate what forms those protests took. Sometime after November 14, 2005, Plaintiff "received a letter of response from the NALC." (Id.) That letter, from NALC Executive Vice President Jim Williams, begins by stating that "President Young has requested that I respond to your letter of October 25, 2005 concerning the removal from the Postal Service which was issued in 2001." (Letter from Williams to Truhlar of November 14, 2005 ("Williams Letter"), Ex. D to Compl.) Williams assured Plaintiff that he had "read your letter closely" but that after discussions with Branch 825 representatives, had concluded that "the Branch decision, while not in your favor, was the correct one." (Id.) Williams wrote that its was "clear based on your letter, that you did fill out the [Department of Labor form] CA-7's with incorrect information. The issue in the grievance was whether just cause exists for the charges of falsification . . . . In this case, the Branch determined just cause did exist." (Id.) He concluded, "I am sorry about the results of the grievance decision, but the Branch made their decision based upon the case file and did not discriminate in any way I could see." (Id.) Plaintiff notes that although Williams' letter states that the NALC supported the "grievance decision," it contains no indication of when any "grievance decision" had been made. (Compl. ¶ 11.)
Significantly, Plaintiff's complaint contains no reference to his "letter of October 25, 2005" to which Williams was responding. Instead, Branch 825 presents it to the court as an exhibit to its motion to dismiss. (Truhlar Letter, Ex. 2 to Branch 825 Mem.) In the letter, addressed to NALC President William Young, Plaintiff asks Young for an "explanation of my status." (Id.) Plaintiff provided background information concerning his mail truck accident and his musical activities, and denied that he had improperly completed CA-7 forms. (Id.) After protesting that the U.S. Attorney had been investigating him for "nearly 5 years" and insisting that he did not "try to defraud [the] government," Plaintiff wrote the following:
To date I have spent nearly ten thousand in attorney fees defending my innocence. My union's response (Branch 825) when this happened was, "there is nothing we could do for you", and in several attempts to contact them they never returned my calls. On October 17, 2005 I finally spoke with Eric Smith of Branch 825 who informed me and I quote "It's a done deal since they were not going to press charges against me, and that this was settled over three years ago" when I asked if the Union could do anything else for me he replied "NO." (Id. (emphasis in original).)
Plaintiff filed an unfair labor practice ("ULP") charge (the "ULP Charge") against Branch 825 with the National Labor Relations Board ("NLRB") on December 29, 2005. (ULP Charge, Ex. 3 to Branch 825 Mem.) In the ULP Charge, Plaintiff asserted that "[s]ince on or about October 17, 2005, [Branch 825] has failed and/or refused to file a grievance on behalf of [Plaintiff] over his termination, for arbitrary, discriminatory, and/or capricious reasons." (Id.) In a letter decision dated February 28, 2006 (the "NLRB Letter"), the NLRB dismissed the charge, finding the evidence insufficient to show that Branch 825 did not "process your grievance . . . fairly."*fn7 (Id.)
Plaintiff filed suit against Branch 825 and the USPS on April 21, 2006. He brings a "hybrid" claim under Section 301 of the LMRA, 29 U.S.C. § 185, see DelCostello v. Int'l Bhd. Of Teamsters, 462 U.S. 151, 165 (1983), alleging that Branch 825 violated its statutory duty of fair representation ("DFR") and that the USPS breached the collective bargaining agreement by terminating him without just cause. (Compl. ¶¶ 1, 13-14.) Specifically, Plaintiff "denies, and has always denied that he ever failed to disclose information required of him on Form CA-7." (Id. ¶ 10.) He asserts that Branch 825 had "previously supported [his] position" by pursuing the November 2001 grievance and reaching the Grievance Settlement, but that the Union has not "indicated why they . . . now have refused to further pursue the 2001 grievance or a new grievance on Plaintiff's behalf." (Id. ¶¶ 10, 12.) He contends that Branch 825's decision "to not pursue the grievance . . . was arbitrary, unreasonable, and capricious," (id. ¶ 13), and further alleges that Branch 825 "conspired with the [USPS] to permit Plaintiff's discharge to stand, although there was no just cause," and that "the 2001-2002 negotiations between [Branch 825 and the USPS] were spurious, carried on in bad faith," and designed to give Plaintiff the false impression that Branch 825 was making a sincere effort to resolve the grievance. (Id. ¶ 14.) Plaintiff seeks reinstatement and damages including, inter alia, back pay. (Id. ¶ 15.)
Defendants have moved to dismiss Plaintiff's complaint, pursuant to FED R. CIV. P. 12(b)(6), for failure to state a claim upon which relief can be granted. The purpose of a Rule 12(b)(6) motion is to test the sufficiency of the plaintiff's complaint, not to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering such a motion, the court accepts all well-pleaded allegations in a claim as true and draws all reasonable inferences in favor of the plaintiff. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 977-78 (7th Cir. 1999). The court will grant the motion only "if it appears ...