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Burns v. Potter

June 22, 2006


The opinion of the court was delivered by: Bassler, District Judge


This matter comes before the Court on Defendant's motion to dismiss the Complaint of Plaintiff Vincent Burns.

This Court properly exercises jurisdiction over any federal claim asserted by Plaintiff pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C.A. § 1391(b).

For the reasons discussed below, Defendant's motion to dismiss is granted, and Plaintiff's entire Complaint is dismissed.


Plaintiff has been employed by the United States Postal Service ("USPS") since September 19, 1984 as a Mail Processing Clerk. On December 10, 1993, due to an ongoing dispute between fellow employees, Plaintiff threw a chair, some mail, and used profanity towards his supervisor. As a result, Plaintiff was placed on Emergency Suspension/Administrative Leave on December 10, 1993 and was ultimately removed from his position on January 6, 1994.*fn1

The American Postal Workers Union ("Union") grieved Plaintiff's removal through arbitration established by the collective bargaining agreement between the USPS and the Union. On September 24, 1994, an Arbitrator ruled that the USPS did not have just cause to suspend Plaintiff, modifying Plaintiff's removal to a 7-day suspension for his use of profanity and self-help remedies. The Arbitrator ordered that Plaintiff be compensated for all lost wages and benefits from the date of his leave, excluding the seven-day suspension period. The USPS paid Plaintiff in accordance with the Order; Plaintiff did not challenge the Arbitrator's decision at the time it was issued nor at the time he received payment.

On January 23, 1998, three and a half years after arbitration, Plaintiff asked the Union to challenge the arbitration decision, claiming that his back pay was not properly calculated. The Arbitrator calculated overtime worked during the removal period using the average overtime of all workers. Plaintiff argues that the actual amount of overtime he claimed to have been able to work should have been used. At that time, the Union declined to challenge the arbitration decision noting that the grievance had been settled regarding the back pay issue.

Five years later in 2003, Plaintiff again attempted to pursue a claim stating that back pay was not properly calculated. This time, the Union filed a grievance on Plaintiff's behalf seeking to challenge the way the overtime payment was calculated. At Step 1 of the grievance process, the USPS denied the grievance and the Union appealed. The appeal was subsequently denied by the USPS Grievance Board at Step 2 as being untimely; the Union again appealed. Before the appeal was heard by the Board , the Union settled the grievance with the USPS on January 27, 2003. The settlement provided that the same overtime averages used in the 1994 arbitration proceedings would be used. The settlement agreement, however, also required management to provide the Union with the actual data used to calculate Plaintiff's overtime back pay. Plaintiff did not pursue the grievance with the USPS after this settlement.

On March 3, 2003, Plaintiff filed an informal Equal Employment Opportunity ("EEO") complaint to further pursue his back pay claim. In a form filed with the EEO on March 19, 2003, Plaintiff claimed that he was being retaliated against by the USPS for activity that occurred in 1993 concerning complaints filed with the EEO on matters of training and a detail assignment.*fn2 Plaintiff claims because he filed the 1993 EEO complaints, Defendants were failing to "make [him] whole on [the] arbitration back-pay settlement decision." Plaintiff filed this Complaint after he became aware that another USPS worker had in January 2003 settled a back pay grievance dating from 1994. In his complaint, Plaintiff again alleged that overtime back pay was improperly calculated and that the claimed calculation difference was approximately $10,000.

On April 28, 2003, the EEO office dismissed Plaintiff's informal complaint as a collateral attack of an arbitration decision. As a result, Plaintiff filed a formal complaint with the EEOC on May 10, 2003. On July 29, 2003, the USPS dismissed Plaintiff's EEO complaint for failure to state a claim under 29 C.F.R. §1614.107(a)(1). Additionally, the USPS found Plaintiff failed to state a claim for relief pursuant to 29 C.F.R. §1614.103(a) because it was an impermissible collateral attack on a grievance decision in a collective bargaining agreement.

Plaintiff filed a Notice of Appeal/Petition to the Equal Employment Opportunity Commission ("EEOC") on August 26, 2003, stating that his claim sought enforcement of the arbitration decision and thus was not a collateral attack. The EEOC affirmed the USPS's dismissal of the complaint for failure to state a claim explaining that the complaint addressed the 1994 arbitration award obtained through the grievance process and was therefore, outside the scope of the EEO. They additionally noted that the appropriate forum for this complaint was the grievance process but that Plaintiff did have a right to file an action with the United States District Court within ninety days from the day he received their decision.

Plaintiff filed a complaint with this Court on February 17, 2004 claiming to receive the EEOC decision on November 22, 2003. He additionally filed an application to proceed in forma pauperis, which this Court denied on April 13, 2004. The case was terminated because Plaintiff failed to pay the filing fee, but reactivated on May 4, 2004, after Plaintiff paid the fee.

Plaintiff's brought his action pursuant to Title VII of the Civil Rights Act of 1964, as amended, for employment discrimination. He claims that the USPS failed to make him whole according to the back pay settlement, failed to make a provision for an Unemployment Insurance offset which had to be prepaid and failed to award proper overtime compensation during the period in which he was improperly removed. ...

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