Hickey v. National Association of Letter Carriers

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 22, 2022
• Docket: 21-1213
• Status: Unpublished

Opinion

Appellate Case: 21-1213 Document: 010110727671 Date Filed: 08/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court LYNDA HICKEY,

Plaintiff - Appellant,

v. No. 21-1213 (D.C. No. 1:20-CV-00358-STV) NATIONAL ASSOCIATION OF (D. Colo.) LETTER CARRIERS, AFL-CIO,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, KELLY, and CARSON, Circuit Judges. _________________________________

Plaintiff Lynda Hickey worked for years as a letter carrier for the United

States Postal Service, where Defendant National Association of Letter Carriers

served as her collective-bargaining representative. Over the years, Plaintiff requested

accommodations for her deafness and filed complaints when she did not receive

them. Plaintiff’s accommodation requests and complaints allegedly did not sit well

with some of her colleagues, so they manufactured a scuffle with Plaintiff to get her

fired. It worked, and Plaintiff approached Defendant about seeking redress for

disability discrimination. Defendant told Plaintiff that she should file a union

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1213 Document: 010110727671 Date Filed: 08/22/2022 Page: 2

grievance but could not file an Equal Employment Opportunity (“EEO”) complaint

until the grievance process concluded. But that was wrong, as Plaintiff learned when

her attempt to pursue an EEO complaint failed because she did not timely file it. So

Plaintiff sued Defendant, alleging that its inaccurate advice constituted negligence

under Colorado law. But the district court determined that federal labor law

preempts Plaintiff’s negligence claim and dismissed the suit. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I.

Plaintiff worked as a letter carrier for the United States Postal Service for

seventeen years before her termination in 2017. She was a member of Defendant

throughout her employment. Plaintiff is deaf, but a cochlear implant in her left ear

and a hearing aid in her right ear help her hear about one-third of the words spoken to

her. During her employment, Plaintiff requested many accommodations for her

deafness and asked Defendant to file grievances on her behalf when the Postal

Service denied her requests. After Defendant declined to file any grievances,

Plaintiff filed EEO complaints against the Postal Service.

Plaintiff’s supervisor and colleagues allegedly did not believe that Plaintiff

struggled with hearing and thought she simply wanted unjustified accommodations.

So they allegedly manufactured an incident to get her fired. While Plaintiff was

sorting mail, one of Plaintiff’s colleagues allegedly snuck up behind her. Feeling

something touch her heel, Plaintiff turned around to find her colleague yelling in her

face. Startled, Plaintiff pushed her colleague away.

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Because Plaintiff pushed another employee, the Postal Service suspended her

without pay for “unacceptable conduct” and ultimately terminated her employment.

Plaintiff believed that the Postal Service really fired her because of her deafness and

that the incident with her colleague was part of a discriminatory scheme to provide

cover for her firing. So Plaintiff filed a union grievance.

When starting the grievance process, Plaintiff’s husband asked Defendant if

Plaintiff could simultaneously pursue a union grievance and an EEO charge.

Defendant incorrectly told him that she could not. Relying on this inaccurate advice,

Plaintiff first pursued a union grievance without filing an EEO complaint. After an

arbitrator denied Plaintiff’s grievance, Defendant told Plaintiff she could then pursue

an EEO charge because the grievance process had concluded.

Plaintiff unsuccessfully sought relief through the Postal Service’s internal EEO

process. She appealed to the United States Equal Employment Opportunity

Commission, but it too denied relief. So Plaintiff sued the Postal Service in federal

court. But the district court dismissed Plaintiff’s claim because by initiating the EEO

process too late, Plaintiff failed to exhaust her administrative remedies. We affirmed.

See Hickey v. Brennan, 969 F.3d 1113, 1116 (10th Cir. 2020).

Plaintiff then sued Defendant in the District of Colorado. Plaintiff alleged

that she would have timely filed her EEO complaint had Defendant not incorrectly

told her that she had to first complete the grievance process. According to Plaintiff,

Defendant’s faulty advice constituted negligence under Colorado law because as a

labor union, Defendant owed Plaintiff a duty to give accurate advice about her

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employment rights.1 Defendant moved to dismiss the negligence claim, arguing that

federal labor law preempted it. The district court granted Defendant’s motion.

Plaintiff appeals.

II.

We review de novo a district court’s dismissal for failure to state a claim.

Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1157 (10th Cir. 2019). While

doing so, we accept the factual allegations in Plaintiff’s complaint as true and

construe them in the light most favorable to her. See id. We then determine whether

Plaintiff’s factual allegations, so construed, plausibly entitle Plaintiff to relief under

the cause of action asserted. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir.

2009).

III.

In its motion to dismiss, Defendant argued that both § 301 of the National

Labor Relations Act (“NLRA”) and the federal duty of fair representation preempt

Plaintiff’s state-law negligence claim. The district court held that § 301 of the NLRA

preempts Plaintiff’s negligence claim and thus did not address the duty of fair

representation. But we may affirm on any ground supported by the record—even if

not the ground the district court relied on. Safe Sts. All. v. Hickenlooper, 859 F.3d

865, 879 (10th Cir. 2017) (citation omitted). We hold that the federal duty of fair

1 Plaintiff also asserted a negligent-misrepresentation claim but later abandoned it. 4 Appellate Case: 21-1213 Document: 010110727671 Date Filed: 08/22/2022 Page: 5

representation preempts Plaintiff’s negligence claim and thus affirm the district

court’s judgment.2

The Supreme Court has long held that § 9(a) of the NLRA imposes an implied

duty on unions serving as exclusive bargaining representatives to represent their

members fairly. See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998)

(citing Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953); Vaca v. Sipes, 386

U.S. 171, 177 (1967)). This duty of fair representation applies to all union activity

and prohibits the union from acting arbitrarily, discriminatorily, or in bad faith. Air

Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991). A union acts arbitrarily

when its conduct falls “so far outside a wide range of reasonableness as to be

irrational” given the facts and law at the time. Id. (internal quotation omitted). In

other words, mere negligence does not breach a union’s duty of fair representation.

United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372–73 (1990).

Under federal labor law, unions have no duties to their members beyond fair

representation unless they contractually create them. See id. at 373–74 (explaining

that unions must contractually accept duties beyond the duty of fair representation).

For that reason, we have held that when union activity falls under the duty of fair

representation, the duty preempts any other duties that state law might impose on the

union. See Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1158 (10th Cir.

2000).

2 We thus do not consider whether § 301 of the NLRA alternatively preempts Plaintiff’s state-law negligence claim. 5 Appellate Case: 21-1213 Document: 010110727671 Date Filed: 08/22/2022 Page: 6

Defendant’s alleged conduct here falls under the duty of fair representation.

Plaintiff alleged that Defendant served as her exclusive collective-bargaining

representative and gave her faulty advice about her rights in an employment dispute.

Because of Defendant’s status as Plaintiff’s collective-bargaining representative,

Plaintiff alleged that Colorado law imposes a duty of care on Defendant to accurately

answer Plaintiff’s questions about her employment rights. But as explained above,

Defendant’s only duty to Plaintiff based on its role as her collective-bargaining

representative was its duty under federal labor law to represent her fairly. Thus,

Defendant is liable to Plaintiff for its faulty advice only if Defendant acted

arbitrarily, discriminatorily, or in bad faith, regardless of any claims Plaintiff might

otherwise have under Colorado law.

Plaintiff argues that the duty of fair representation applies only to union

conduct while representing an employee in a grievance proceeding. Because

Defendant’s faulty advice did not occur while representing Plaintiff in the grievance

process, Plaintiff argues that the duty does not apply. But the Supreme Court has

stated that the duty of fair representation applies to all union activity. O’Neill, 499

U.S. at 67. And we have applied the duty of fair representation outside the grievance

context, including when a union allegedly provided its members bad advice. See

Schwartz v. Bhd. of Maint. of Way Emps., 264 F.3d 1181, 1184–87 (10th Cir. 2001)

(applying the duty-of-fair-representation analysis to a union’s provision of inaccurate

advice that led to employees’ unintentionally forfeiting their jobs); Nelson v. Holmes

Freight Lines, 37 F.3d 591, 595 (10th Cir. 1994) (applying the duty-of-fair-

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representation analysis to a union’s provision of inaccurate advice that led to an

employee’s losing his grievance rights). In Schwartz, we explained that the duty of

fair representation arises from the union’s status as the exclusive representative of its

members’ interests. 264 F.3d at 1185 (citation omitted). This status requires unions

to pursue their members’ interests in all respects without discrimination, bad faith, or

arbitrary conduct—when pursuing a grievance, when giving advice, or when

otherwise providing their services to their members. See id. at 1185, 1187.

Plaintiff does not dispute that Defendant’s status as her collective-bargaining

representative gave rise to the alleged duty here. Plaintiff does not claim that

everyone in Colorado has a duty to provide accurate advice about employment rights

when asked, nor does Plaintiff claim that Defendant has a duty to provide accurate

information to any person who asks for it. Only because of Defendant’s union–

member relationship with Plaintiff does Plaintiff claim Defendant had a duty to

provide her accurate information about her rights. Indeed, Plaintiff asserts that she

“pays her union dues to receive such advice.” Appellant’s Br. at 16. But as

explained above, Defendant’s only duty to its members based on its status as their

union is its duty under federal labor law to represent them fairly. That duty preempts

any duties state law might impose on Defendant because of its status as a union.

Thus, the duty of fair representation provides Plaintiff’s only possible remedy for

Defendant’s bad advice. And because Plaintiff concedes that she did not file suit

before expiration of the six-month statute of limitations applicable to fair-

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representation claims, the district court properly dismissed Plaintiff’s negligence

claim. See Thomas, 225 F.3d at 1158.

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge