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Truhlar v. John Grace Branch #825 of the National Association of Letter Carriers

February 10, 2009

KENNETH T. TRUHLAR, PLAINTIFF,
v.
JOHN GRACE BRANCH #825 OF THE NATIONAL ASSOCIATION OF LETTER CARRIERS, AND THE UNITED STATES POSTAL SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

On November 2, 1998, Plaintiff Kenneth Truhlar, a letter carrier with Defendant United States Postal Service ("USPS"), was rear-ended in a USPS vehicle while delivering mail. The following day, Truhlar filed a claim for workers' compensation and began working shorter days. Periodically, he was required to complete a form confirming his continuing need for partial disability payments. One of the fields on the form asked: "Have you worked outside your federal job during the period [for which you are claiming disability]?" On at least twenty-four forms completed from 2000 through the summer of 2001, Truhlar answered this question "No" or left it blank. In fact, however, during much of this time, Plaintiff was performing in a band, activity that generated around $11,000 in income. Plaintiff claims that he was not actively trying to conceal this activity and that he honestly believed that the money he earned from the band's performances did not need to be reported on the form. Nevertheless, USPS initiated an investigation in the summer of 2001, and ultimately concluded that Plaintiff acted improperly by failing to report income on the government form. As a result, Plaintiff was issued a notice of removal on November 9, 2001.

Plaintiff filed grievances with his local union, Defendant John Grace Branch # 825 ("Branch 825" or "the Branch") of the National Association of Letter Carriers ("NALC"), protesting the notice of removal and other personnel actions taken by USPS in the summer and fall of 2001. In February 2002, the Branch and USPS agreed to hold Plaintiff's grievances in abeyance pending the outcome of a criminal investigation initiated by the United States Attorney's Office. In the summer of 2005, USPS learned that the U.S. Attorney had declined to prosecute Plaintiff, but concluded that Plaintiff's actions provided just cause for termination. Based on the evidence available at the time, Branch 825 agreed, and Plaintiff was terminated effective in fall 2005. The union declined to consider reopening the matter, even after the Employee's Compensation Appeals Board at the Department of Labor ("DOL") overturned a previous DOL decision and ruled that Plaintiff was not required to pay back the money he received while on partial disability.

Plaintiff filed suit against both the union and USPS, alleging that the former violated its duty to fairly represent his interests and the latter breached the collective bargaining agreement ("CBA") in place between NALC and USPS. Both Defendants moved for summary judgment. For the reasons given below, both motions are granted.

FACTS

Truhlar began working for USPS in 1984 as a letter carrier in Westmont, Illinois. (825 56.1 ¶ 1.) On November 2, 1998, Plaintiff was rear-ended by another car while delivering mail on his route. (Investigative Memo. at 1, Ex. 64 to Pl.'s Mem.) The next day, Plaintiff filed a claim with DOL for partial disability payments. (825 56.1 ¶ 4.) Although the details of his work schedule are disputed, the parties agree that Plaintiff began working a reduced schedule after DOL accepted his claim, and that by November 2000, Plaintiff was working an average of four hours per day while continuing to receive partial disability payments. (Pl.'s Ans. to 825 56.1 ¶ 5.) In order to continue receiving these payments, DOL required Plaintiff to periodically complete a Form CA-7 "Claim for Compensation." (825 56.1 ¶ 6.) One of the questions on the CA-7 asked: "Have you worked outside your federal job during the period [for which you are claiming disability]?" (Id.) On at least twenty-four CA-7 forms submitted by Plaintiff, he either left that field blank or answered "no." (Id. ¶ 7.) During 2000 and 2001, however, Truhlar earned approximately $11,000 as a bass guitarist in the rock band, "Bang." (Id. ¶ 9.) Plaintiff also received $10,594.25 in disability compensation from DOL during this time. (Id.)

In the summer of 2001, the United States Postal Inspection Service (the "Inspection Service") began an investigation of Plaintiff's disability claim. (Id. ¶ 8.) On June 27, 2001, following an interview with Truhlar concerning his income from the band, Postal Service Supervisor William Blaha placed Truhlar on emergency off-duty status, stating in a letter, "Your explanation about offsetting expenses and misunderstanding the form are unacceptable and your actions are inappropriate. Therefore you are placed in this status because retaining you on duty may result in loss of funds." (USPS 56.1 ¶ 4.) On July 12, Branch 825 filed a grievance on Plaintiff's behalf. (Id. ¶ 5.) The Inspection Service's investigation culminated in the issuance of an Investigative Memorandum on September 4, 2001, which concluded that Plaintiff "failed to report his outside employment and the subsequent income to the U.S. Department of Labor." (Investigative Memo. at 1, Ex. 64 to Pl.'s Mem.) The Memorandum relied, in part, upon a document prepared by Candace Vucsko, a Human Resource Specialist at USPS. In a "Memo to File" dated February 5, 2001, Vucsko wrote that she had a conversation with Truhlar in which she informed him that he needed to complete several parts of the CA-7, including the provision about outside income. (Id. at 2.) According to Vucsko's memo, Truhlar told her about a recording studio that he owned and said that he wrote and published songs; Vucsko warned that any earnings from those activities had to be reported on the form, but Truhlar assured her that he did not make any money from those activities. (Id.) The memo does not specifically mention Truhlar's participation in a band. At some unspecified point,*fn1 the U.S. Attorney's Office began an investigation into Truhlar's claims on the CA-7 forms. (825 56.1 ¶ 10.) On September 28, Westmont Postmaster Gary Reece met with Truhlar and his union representative to inquire about Truhlar's failure to report the outside income; on the advice of counsel, Truhlar chose not to respond to the questions. (USPS 56.1 ¶ 6.)

On November 9, 2001, USPS issued a "Notice of Removal" to Plaintiff, advising him that his termination would become effective no sooner than thirty days later. (Id. ¶ 7.) The Notice identified four provisions of the Employee and Labor Relations Manual ("ELM") that Plaintiff had violated: 661.3 Standards of Conduct ("Employees must avoid any action . . . which might result in or create the appearance of . . . affecting adversely the confidence of the public in the integrity of the Postal Service"); 661.53 Unacceptable Conduct ("No employee will engage in criminal, dishonest . . . or immoral conduct"); 666.2 Behavior and Personal Habits ("Employees are expected to conduct themselves during and outside of working hours in a manner which reflects favorably upon the Postal Service"); and 666.3 Loyalty ("Employees are expected to be loyal to the government and uphold the policies of the Postal Service"). (Id. ¶ 8.) Truhlar requested that the union file another grievance on his behalf, and Branch 825 did so on November 21. (Id. ¶ 9.) In yet another grievance filed that fall, the union challenged a "Letter of Demand" in which USPS demanded that Truhlar repay $227.80 in health care coverage that USPS believed it should not have paid. (Grievance Worksheet, Ex. 81 to Pl.'s Mem.)

Under the grievance procedure that governed Plaintiff's grievances,*fn2 a grievant could initiate a grievance at Step 1 and, if the grievance is not resolved by USPS, the Branch could appeal to Step 2. (825 56.1 ¶ 16.) If the grievance is not resolved at Step 2, the Branch could then appeal to Step 3, at which point the matter would be handled by the national union, and an unfavorable outcome at this stage could then be appealed to arbitration. (Id.) In Truhlar's case, USPS denied his grievance at Step 1. (Id. ¶ 18.) After the Branch appealed his grievances to Step 2, USPS gave Eric Smith, the Branch vice-president, a copy of the Investigative Memorandum and told Smith that the U.S. Attorney's Office had criminally charged Truhlar. (Id. ¶ 20.) This was not accurate: Truhlar had not in fact been charged. The Branch and USPS nevertheless signed "Grievance Settlement" forms on February 25, 2002, agreeing to hold the grievances in abeyance "pending disposition of charges brought against [Truhlar] by the office of the United States Attorney on a related matter." (Id. ¶ 21.) The forms contain no reference to the DOL investigation (Grievance Settlement, Ex. G to Smith Decl., Attach to 825 56.1), but some evidence suggests the pending DOL proceedings were an independent basis for the decision to stay the resolution of the grievances. (Grievance Settlement, Exs. 57-59 to Pl.'s Mem; Anders Dep. 84:8-85:2, Ex. AA to Pl.'s Mem.) The parties also dispute the extent to which Truhlar was involved in the grievances: Smith asserts that Truhlar refused to discuss the grievances with Branch personnel at all, while Truhlar claims that he was never even contacted by the Branch. (Pl.'s Ans. to 825 56.1 ¶ 19.)

The grievances continued to be held in abeyance until the summer of 2005, when Dianne Anders, who became Postmaster at the Westmont facility in May 2005, asked several individuals about the Truhlar grievances. (USPS 56.1 ¶¶ 20-21.) In addition to receiving a copy of the Investigative Memorandum, Anders learned that DOL had denied Plaintiff's appeal of his compensation forfeiture (discussed in more detail below) and that the U.S. Attorney's Office had declined to prosecute Truhlar. (Id. ¶¶ 21, 25, 26.) Assistant United States Attorney Michelle Nasser Weiss explained the decision not to charge Plaintiff criminally on the basis that the total dollar amount at issue was low, DOL had ordered Plaintiff to repay the full loss amount, and the Civil Division of the U.S. Attorney's Office was pursuing damages. (Declination Form, Ex. H to Smith Decl., Attach. to 825 56.1.) After discovering this information, Anders set up a meeting with Smith, who, after reviewing the same information, agreed to withdraw Truhlar's grievances. (USPS 56.1 ¶ 27.) On September 14, 2005, Smith formally withdrew the grievances. (Id. ¶ 28.) Plaintiff received a Form 50 "Notification of Personnel Action" on October 17, 2005, informing him that his removal became effective September 23, 2005.*fn3 (Id. ¶ 32.) Later that day, Truhlar called Smith to see if he could file a grievance regarding the Form 50, and Smith told him he could not. Truhlar recalls that Smith told him, "You're a done deal. The case has been over years ago. There's nothing-nothing we can do for you." (Id. ¶ 33; Truhlar Dep. 159:12-17, Attach. to USPS 56.1.) When Truhlar, upset, responded with profanity, Smith stopped talking. (USPS 56.1 ¶ 33.) On October 25, Truhlar wrote a letter to NALC President William Young in which he recounted his conversation with Smith and asked the national union to intervene on his behalf. (Truhlar Letter, Ex. 30 to Pl.'s Mem.) The next day, Truhlar called Branch 825 President Jay Ricke, who set up a meeting for Truhlar with Smith and another union representative; at the meeting, Truhlar again requested that the union file a grievance over the Form 50 and was again told that the union could not do so and that "it was a done deal." (USPS 56.1 ¶ 35.) On November 14, NALC executive vice president Jim Williams responded to Truhlar's letter and informed him that the national union would not intervene on his behalf because "the Branch determined just cause did exist . . . [and] the Branch made their decision based upon the case file and did not discriminate in any way I could see." (Williams Letter, Ex. 22 to Pl.'s Mem.)

At the same time the USPS grievance process and the U.S. Attorney's Office investigation were underway, the DOL Office of Workers' Compensation Programs ("OWCP") was evaluating Plaintiff's case to determine whether he would be required to forfeit the $10,594.25 he received in disability compensation from March 2000 to June 2001. (Decision of the Hearing Rep. at 1, Ex. 68 to Pl.'s Mem.) In May 2003, DOL found that Plaintiff knowingly omitted his earnings from the CA-7 forms and therefore had forfeited his disability compensation; after a hearing in January 2004 at which Plaintiff testified, on May 12, 2004, DOL affirmed its decision that Plaintiff must repay the $10,594.25. (Id. at 4.) Truhlar appealed this decision to the DOL Employee Compensation Appeals Board ("ECAB") in May 2005. (USPS 56.1 ¶ 19.) On January 12, 2006, after Plaintiff's grievances had been withdrawn and he had been terminated by USPS, ECAB overturned DOL's prior decision, concluding that Plaintiff was not required to repay the $10,594.25 because the CA-7 forms "did not reasonably put appellant on notice that he had to report all earnings." (ECAB Decision at 4, Ex. 34 to Pl.'s Mem.) It is undisputed that Truhlar never informed Anders or Smith that he had appealed to ECAB, but Truhlar contends that Anders nevertheless should have known because DOL forwarded a notice of the appeal to USPS. (Pl.'s Ans. to 825 56.1 ¶¶ 41-42.) At any rate, in August 2005, before Anders asked Smith to withdraw Truhlar's grievances, Labor Relations Specialist Anthony Intoe informed Anders that they had "no record" of Truhlar's having appealed the May 2004 DOL decision (USPS 56.1 ¶ 26), and Plaintiff concedes that neither Smith nor Anders had actual knowledge of the appeal. (Pl.'s Ans. to USPS 56.1 ¶ 30.)

Truhlar filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") on December 29, 2005, alleging the Branch failed to file a grievance over his termination. (825 56.1 ¶ 46.) The NLRB dismissed the charge in February 2006, and affirmed the dismissal on April 20, 2006. (Id. ¶¶ 47-48.) The next day, Plaintiff filed suit in this court under section 301 of the Labor Management Relations Act of 1947 ("LMRA"), alleging that the Branch violated the duty of fair representation it owed to him and that USPS violated the CBA by terminating him without just cause. On March 30, 2007, the court denied Defendants' motions to dismiss Plaintiff's complaint as untimely. Truhlar v. John Grace Branch No. 825 of NALC, 06 C 2232, 2007 WL 1030237 (N.D. Ill. Mar. 30, 2007). Defendants now move for summary judgment.

DISCUSSION

A court will grant a motion for summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is ...


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