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Podobnik v. U.S. Postal Service

May 5, 2005

PHILIP J. PODOBNIK APPELLANT
v.
UNITED STATES POSTAL SERVICE; NATIONAL RURAL LETTER CARRIERS ASSOCIATION; JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 01-cv-00192) District Judge: Honorable Donetta W. Ambrose

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 3, 2005

Before: McKEE, VAN ANTWERPEN, and WEIS, Circuit Judges

OPINION OF THE COURT

Before us is an appeal from the United States District Court for the Western District of Pennsylvania granting summary judgment in favor of Appellees United States Postal Service ("USPS") and National Rural Letter Carrier Association ("NRLCA"). Before the District Court, Philip J. Podobnik ("Appellant") alleged that USPS violated both the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et. seq., and the collective bargaining agreement that existed between USPS and NRLCA.*fn1 He further alleged that NRLCA breached its duty to fairly represent him. Because we conclude that all of Appellant's claims are either untimely or unexhausted, we affirm the Order of the District Court adopting the Report and Recommendation of the Magistrate Judge.

I. FACTS

Appellant was born on August 17, 1929, and was employed as a rural letter carrier with USPS's Monroeville, Pennsylvania division from March 25, 1969, until his retirement on March 31, 1998. For the entire length of his employment with USPS, Appellant's union representative was NRLCA.*fn2 As he was a rural carrier, Appellant was not paid for a "traditional" eight-hour work day, as would a city letter carrier. Rather, his compensation was based on the number of pieces of mail he delivered, the mailboxes he served, and the mileage he traveled. Appellant was required to work as long as necessary to complete his daily rounds, which he contends required between 54 and 56 hours per week.

Sometime in 1993, the Monroeville Post Office attempted to adjust Appellant's route downward by transferring approximately 40% of his route to a younger city mail carrier. Because this was a substantial adjustment downward, Appellant's compensation would have been dramatically reduced. He contacted his NRLCA union steward, Helen Malarik, but did not file a grievance at any time. Through Malarik's efforts, Appellant was able to request that the smallest leg of his route be transferred to another rural letter carrier also represented by NRLCA.

Ultimately, all parties agreed to the downward adjustment of Appellant's route, which he found to be a "great relief."

On April 22, 1997, Appellant's immediate supervisor followed him on his route and observed him commit three vehicle safety violations: (1) driving in excess of the 45 miles per hour speed limit; (2) changing lanes without using turn signals; and (3) dismounting from his vehicle without shutting off the engine. For these infractions, Appellant was suspended for 14 days and had his driving privileges suspended for 60 days. The next day, Appellant filed a USPS-NRLCA "Joint Step 1 Grievance Form" disputing these charges. NRLCA intervened on Appellant's behalf, and a "Step 2 Grievance Settlement" was reached which reduced his term of suspension to time already served.*fn3

On March 2, 1998, Appellant was again followed and again charged with three safety violations: (1) unnecessary backing up of his vehicle; (2) leaving his vehicle's engine running while it was parked and while he was inside various addresses delivering mail; and (3) leaving his vehicle unlocked and unsecured with mail in it. On March 5, 1998, Appellant went to the Pittsburgh branch of the Equal Employment Opportunity Commission ("EEOC") to file an age discrimination claim. While filling out an EEOC Intake Form, an EEOC representative told him that he would have to pursue any discrimination claim through USPS's Equal Employment Opportunities office. Appellant did not ask for clarification, but claims to have thought that he had to file his complaint directly with his USPS supervisors (which he deemed futile) instead of a USPS employment counselor. In any event, he did not complete an EEOC Intake Form, and did not pursue his claim further with USPS.

On March 10, 1998, Appellant and Malarik had a meeting with his USPS supervisors.*fn4 At that meeting, the supervisors indicated their intent to terminate Appellant, and he was given a letter entitled "Notice of Proposed Removal," proposing to discharge him within 30 days for the vehicle safety violations that had been observed in 1997 and 1998. This notice stated that Appellant had the option, under the collective bargaining agreement, to file a grievance within 14 days. Also during the meeting, USPS offered Appellant the opportunity to retire in lieu of termination, thereby allowing him to keep his pension. On March 31, 1998, Appellant officially retired. He never filed a grievance, nor did he request that NRLCA do so.

On October 11, 2000, Appellant met with his attorney in connection with a Social Security matter. At that meeting, Appellant relayed the situation surrounding his 1993 route reduction and 1998 retirement. At that time he claims that, with the help of his attorney, he became aware that he had viable claims against USPS and NRLCA. He also concedes that, between his retirement and his October 11, 2000, meeting with his attorney, he undertook no independent investigation of his case and did not learn any new ...


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