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Jordan v. United States Postal Service

May 29, 2007

MARILYN JORDAN, PLAINTIFF,
v.
UNITED STATES POSTAL SERVICE AND NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

This is an action under 39 U.S.C. § 1208(b) (2007) brought by plaintiff Marilyn Jordan ("Jordan") against her former employer, the United States Postal Service (the "Postal Service") and the union that represented her while she was so employed, the National Association of Letter Carriers, AFL-CIO ("NALC"). Her suit alleges the hybrid claim that the Postal Service unlawfully discharged her in violation of the collective bargaining agreement, and that NALC breached its statutory duty of fair representation. Jordan appears pro se. Both NALC and the Postal Service have filed motions for summary judgment. Jordan had until April 26, 2007 to file a response, but as of the date of this opinion she has not responded. For the following reasons, I grant NALC and the Postal Service's motions.

I.

Summary judgment is appropriate where the record and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006) (citing FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party meets this burden, the non-moving party must then go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Id. at 694 (citing FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990)). The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson, 477 U.S. at 255. Additionally, here Jordan has not responded to NALC or the Postal Service's motion, and has not contested their Local Rule 56.1 statements of material fact or provided any additional facts in opposition to their motions. Therefore, under Local Rule 56.1(b)(3)(C), defendants' statements of material fact are deemed admitted for purposes of ruling on their motions.*fn1

Taking the facts, as set forth in defendants' statements of material fact and the exhibits thereto, in the light most favorable to Jordan, the following are the facts relevant to defendants' motions: Jordan was employed by the Postal Service from 1994 to 2004; she worked as a letter carrier. Jordan was last employed at the Postal Service's Moraine Valley Post Office in Bridgeview, Illinois. As a letter carrier, Jordan was a member of the NALC; NALC is the exclusive collective bargaining representative of city letter carriers employed by the Postal Service, and consequently served as Jordan's bargaining representative during her employment with the Postal Service.

NALC and the Postal Service have entered into a nationwide collective bargaining agreement, the "Agreement between United States Postal Service and National Association of Letter Carriers AFL-CIO" (the "CBA"). Article 15 of the CBA sets forth a multi-step grievance procedure. Under Informal Step A, if an individual employee feels aggrieved she may meet to discuss her grievance with her immediate supervisor within fourteen days of the date on which she learned or may reasonably have been expected to have learned of the cause of her grievance. (Postal Serv. Ex. 2A, CBA Art. 15.1) NALC may similarly initiate Informal Step A. (Id.) At this step either the supervisor or a NALC representative has authority to resolve the grievance. (Id.) If the grievance is not resolved at Informal Step A, the CBA provides that NALC "shall be entitled to file a written appeal to Formal Step A." (Id.) During Formal Step A, "the grievant shall be represented for all purposes by a steward or a Union representative who shall have authority to resolve the grievance as a result of discussions or compromise" in Formal Step A. (Id. at Art. 15.2.) Under the CBA, "Any appeal from an unresolved case in Formal Step A shall be in writing to the Step B team at the appropriate Step B office." (Id.) The Step B team is instructed to "review the appeal and issue a joint report of the decision and any supporting findings." (Id.) The Step B team may "1) resolve the grievance 2) declare an impasse 3) hold the grievance pending resolution of a representative case or national interpretive case or 4) remand the grievance with specific instructions." (Id.) Further, "It is the responsibility of the Step B team to ensure that the facts and contentions of grievances are fully developed and considered, and resolve grievances jointly."*fn2 (Id.) Article 15.4 provides for arbitration if a request for arbitration is submitted within the specified time limit for appeal. (Id. at Article 15.4.) According to the Postal Service and NALC's interpretation of Article 15.4, only impasses at the Step B level may be appealed to arbitration. (Postal Service Ex. 2B, Manual at 20.)

Between August 1, 2001 and April 30, 2005, Jim Ballou ("Ballou") served as the Step B Dispute Resolution Team Representative for NALC for the area that included grievances filed by NALC Local Branch 4016, the local NALC branch covering employees at the Moraine Valley Post Office. In his capacity as the Step B representative, Ballou reviewed all documents and written arguments provided to the Step B Team by NALC and management. Edward Miller ("Miller") served as the Step B Representative for the Postal Service.

In her deposition in this matter Jordan provided her account of the events surrounding her termination from the Post Office. She testified that on September 1, 2004, as she was working her shift she felt tired and sleepy. She notified Postmaster Paul Mokos ("Mokos") that she felt dizzy and fatigued, and he informed her that she could leave but that he needed medical documentation dated September 1, 2004, indicating how tired she was feeling that day. Jordan left work around 10:30 or 11:00 and went to the office of Dr. Howard E. Sweeney ("Dr. Sweeney"), her physician. His office was located in a building with other doctors' offices. When she arrived at his office, it was closed, but she testified that she approached Dr. Sweeney's reception desk and told the nurse behind the desk that she needed to see Dr. Sweeney; the nurse told her that Dr. Sweeney was not in.*fn3 According to Jordan, she told the nurse that she needed "some kind of medical documentation saying [she] was incapacitated." Jordan then obtained a note on Dr. Sweeney's prescription pad dated September 1, 2004 (the "note"), that stated, "Mrs. Jordan was incapacitated for work today." The note was not signed by anyone from Dr. Sweeney's office, although Jordan contends that the nurse at the desk gave her the note. Jordan testified in her deposition that she is not sure that she can identify the person who provided the note to her, although she provided a general description of the person in her deposition. Jordan returned to work on Friday, September 3, 2004, and gave the note to her supervisor.

On September 10, 2004, Jordan met with Mokos, a supervisor, and NALC union steward Bill Beaulieu ("Beaulieu") concerning the note. Mokos questioned the circumstances under which she obtained the note, and according to Jordan she told him that she saw a nurse and that Dr. Sweeney was not in that day. As a result of that meeting, Mokos placed Jordan on emergency placement in off-duty status. The next day, Jordan contacted Beaulieu and asked him to file a grievance about her emergency placement. NALC filed a grievance, and Ballou and Miller reviewed it at the Step B level with the resolution that the emergency placement be expunged from Jordan's records and that Jordan be compensated for lost wages.*fn4 According to Jordan's deposition, her claims in this case do not encompass the resolution of this grievance.

In a letter from Mokos dated September 29, 2004 (the "September 29 notice of removal"), the Postal Service notified Jordan that she would be removed from the Postal Service for the charge of "Unacceptable Conduct as Evidenced by Your Submission of A False Document to Secure Approved Leave." In the letter Mokos alleged that he was suspicious of the note Jordan provided to obtain leave, conducted his own investigation and determined that Dr. Sweeney was not in the office on September 1, 2004 and that no one from his office had written the note. He contended that when he questioned Jordan about the note on September 3, 2004, Jordan initially told him she had seen Dr. Sweeney, but then stated that she had seen his nurse, and later stated that she had seen someone but did not know who. The letter cited several sections of the Employee and Labor Relations Manual ("ELM") that Jordan purportedly violated,*fn5 including

* 661.53, providing that no employee "will engage in criminal, dishonest, notoriously disgraceful or immoral conduct;"

* 511.43, providing that employees must "maintain their assigned schedule" and "must provide acceptable evidence when required;"

* 661.21, providing that all postal employees must "[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or government department;"

* 666.2, providing that employees must "be honest, reliable, trustworthy, courteous, and of good ...


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