Illinois Mail Handler fired for attendance loses case against USPS, NPMHU

NPMHU_logoThe U.S. Postal Service fired Daniel C. Coker as a mail handler after he accrued too many unscheduled absences. An arbitrator upheld the decision to fire him, and Coker filed a lawsuit.

The USPS issued Coker a Notice of Removal on April 12, 2012, notifying him he would be removed from his position as a mail handler. The letter provided a list of 32 scheduled work days, covering 256 hours, that Coker was absent between January 2 and March 29, 2012, with 20 of the days being listed as AWOL or on leave without pay. Coker was not eligible for FMLA leave during the period covered by the April 12 removal letter because he worked less than the required 1250 hours in 2011.

Daniel C. Coker filed a complaint against Postmaster General Patrick Donahoe on April 29, 2014, in the United States District Court for the Central District of Illinois. Coker had worked at the USPS facility in Champaign, Illinois, since March 2000 as a mail handler.

The Complaint named USPS, the Postmaster General, and NPMHU Local #306 as defendants, as well as the Attorney General and the United States Attorney. It alleged the Union denied Coker due process by failing to represent him properly during an arbitration and by failing to appeal the arbitrator’s award, and that the Union failed to take action when Coker “made [it] aware of the existence of two separate sets of [attendance] documents, PS Form 3971.” The Complaint alleged the USPS breached an EEO settlement, denied Coker due process during the arbitration, lied to the arbitrator and submitted fraudulent evidence at the arbitration, created a hostile work environment for Coker, removed his name from the overtime list, and lied about him to the Illinois Department of Employment Security. The Complaint did not articulate any claims against the Attorney General or the United States Attorney so the court dismissed claims against them from the lawsuit. He also sued his union for breaching its duty to represent him fairly in the arbitration.

Coker alleged in an NLRB charge that he filed on or about April 2, 2014, that Local 306 improperly failed to represent him by not helping him appeal the Arbitrator’s award. Thus, “Coker must certainly have known by then that this asserted breach of duty by NPMHU Local 306 had occurred; and therefore the six-month statute of limitations on this wholly frivolous claim expired no later than October 2, 2014.” But Coker waited until May 15, 2015, to allege that NPMHU Local 306’s failure to sue to overturn the arbitration award was unlawful.

The Court Of Appeals upheld firing and denied the claims against National Postal Mail Handlers Union #Local 306.

Here is the case:

 United States Court of Appeals

For the Seventh Circuit
Chicago, Illinois 60604

DANIEL C. COKER, Plaintiff-Appellant, v.

MEGAN J. BRENNAN, Postmaster General of the United States, \
and NATIONAL POSTAL MAIL HANDLERS UNION LOCAL 306 Defendants-Appellees.

No. 16-2334

    Decided: November 01, 2016

Before ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge DAVID F. HAMILTON, Circuit Judge

ORDER

The U.S. Postal Service fired Daniel Coker as a mail handler after he accrued too many unscheduled absences. An arbitrator upheld the decision to fire him, and Coker brought this suit. He principally claims that, in firing him, the Postal Service violated an earlier settlement agreement. He also sued his union for breaching its duty to represent him fairly in the arbitration. After a bench trial, the district court concluded that the claims against the Postal Service lacked merit; it also granted the union summary judgment. Because the Postal Service did not breach the settlement and the union acted reasonably, we affirm the judgment.

Coker’s claims were disposed of at different stages in the litigation, so we consider them separately. We start with the record developed at trial against the Postal Service and first address Coker’s main claim that, in firing him, the Service violated the settlement agreement. That settlement agreement, reached in September 2010, resolved among other disputes a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. The claim challenged an earlier decision by the Postal Service to fire Coker for absenteeism. In the 2010 settlement, the Postal Service promised that the “Notice of Removal and all other discipline will be rescinded and expunged” from Coker’s record. It also agreed to award him annual-leave credit and pay him $30,000 in a lump sum.

New problems arose a few months after the settlement. From April 2011 until April 2012, Coker clashed with management over new and frequent unscheduled absences. In an effort to correct the absenteeism, he received the progressive discipline required in the collective bargaining agreement: first, a letter of warning, then as the absences continued, a suspension of 7 days, and later a suspension for 14 days. Finally, in April 2012, he received a notice of removal for 32 days of unscheduled absences between January and March 2012.

After Coker received this notice, his union challenged the removal through three grievance steps and arbitration. During the second grievance step, the manager of the local postal facility, Jennifer Defebaugh, reviewed his attendance records for each year going back to 2005. She reviewed these older records to evaluate Coker’s contention that his absences in 2012 were the result of hostility from his current supervisors. By looking at prior records, Defebaugh could see if his attendance was better under different supervisors. It was not any better, so she denied his grievance. Later, at the arbitration, the Postal Service submitted Coker’s attendance records going back to 2006. Based on his attendance history from 2011 to 2012, the arbitrator concluded that the Postal Service had good cause to fire him.

Coker unsuccessfully argued at trial that the Postal Service breached the settlement agreement by using his older attendance records in the grievance process and at the arbitration. The district judge ruled that the settlement did not prohibit the Postal Service from using these records, and in any case Coker did not show that he was disciplined for attendance issues predating the settlement. The judge credited Defebaugh’s testimony that she reviewed the pre-settlement records only to evaluate Coker’s assertion that his recent absences resulted from the hostility of his new supervisors. The judge also ruled that the Service did not breach the settlement during the arbitration, though he mistakenly thought that Coker was protesting the submission of the settlement agreement to the arbitrator, when in fact Coker was objecting to submission of his attendance records.

On appeal Coker maintains that the Postal Service breached the settlement by reviewing his older attendance records, but he is wrong. Nothing in the settlement agreement prohibited the Postal Service, during either the grievance steps or arbitration, from consulting Coker’s past attendance records. The settlement required only that the Postal Service expunge an earlier notice of removal and past discipline; it did not compel the Service to destroy or ignore Coker’s record of absences. In any case, the district court permissibly found that Defebaugh reviewed the old absences, not to discipline Coker for them, but to decide whether they validated his mitigation argument about his current absences. See United States v. Norris, 640 F.3d 295, 301 (7th Cir. 2011) (decision to credit the plausible testimony of a witness “can virtually never be clear error” (quoting Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985))). Likewise Coker points to no evidence suggesting that the Postal Service asked the arbitrator to consider Coker’s pre-settlement absenteeism to justify firing him. Instead the arbitrator relied only on Coker’s absences after the settlement to uphold the discharge. Thus the Postal Service did not violate the settlement.

We can quickly dispatch the two remaining claims that Coker asserted at trial. First he asserted that he faced a hostile work environment. (Two supervisors had bragged about disciplining him and management took no corrective action, and he was not placed on a list of employees seeking overtime.) But in his appellate brief Coker does not challenge the district court’s finding that his work environment was not hostile, so we need not address the claim. See Roberts v. Columbia Coll. Chi., 821 F.3d 855, 862 n.2 (7th Cir. 2016) (arguments not presented in opening brief are waived); Kathrein v. City of Evanston, Ill., 752 F.3d 680, 689 n.6 (7th Cir. 2014) (pro se litigants are generally subject to same waiver rules as parties with counsel).

Second Coker asserted against the Postal Service a “hybrid claim” under 39 U.S.C. § 1208(b). He argued that the Service violated its collective bargaining agreement with his union by denying him due process during the arbitration. To prevail against the Postal Service on this hybrid claim, Coker had to establish first that the union breached its duty of fair representation in the arbitration. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164–65 (1983); Truhlar v. U.S. Postal Serv., 600 F.3d 888, 892 (7th Cir. 2010). As we are about to explain, the district court properly granted summary judgment for the union on this claim.

We present in the light most favorable to Coker the facts concerning his claim that the union breached its duty of fair representation at the arbitration. Coker’s union advocate, Richard Coleman, decided not to submit to the arbitrator a doctor’s note that the union had tendered at an earlier grievance stage. The note showed that Coker had been treated for anxiety and depression twice in March 2012. Coleman also decided against using two written statements by Coker, describing his supervisors’ hostility and his personal struggles during late 2011 and early 2012. In explaining these decisions to the district court, Coleman stated that the doctor’s note did not account for the full extent of Coker’s absences; submitting it, he feared, might have exposed Coker to difficult questions about his overall poor attendance. And Coker’s statements about his supervisor “raised claims we were not in a position to prove” and may have discouraged the arbitrator from reinstating Coker. Coleman preferred, he continued, to pursue a strategy of arguing that the Postal Service’s firing was improperly punitive and Coker was ready to work.

The district court ruled that a reasonable factfinder could not conclude that the union had violated its duty of fair representation. The evidence, the judge said, showed only that the union pursued a strategy different from what Coker may have liked, not that it handled his case discriminatorily or unfairly.

The duty of fair representation requires a union “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Yeftich v. Navistar, Inc., 722 F.3d 911, 915–16 (7th Cir. 2013) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). To survive summary judgment, Coker needed to present evidence that the union’s actions were “arbitrary, discriminatory, or in bad faith.” Truhlar, 600 F.3d at 892 (quoting Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991)). With no evidence of bad faith or discrimination, Coker essentially argues that the union arbitrarily decided not to submit the doctor’s note and his written statements. (He also argues that the union failed to exploit what he calls discrepancies in his attendance records.) He seizes on a portion of the arbitrator’s decision stating that no documents supported Coker’s contentions about treatment for anxiety and little evidence showed hostility from his supervisor.

On this record, though, a reasonable factfinder would not conclude that the union’s representation was arbitrary. A union acts arbitrarily only when its decisions are “so far outside a wide range of reasonableness, as to be irrational.” Truhlar, 600 F.3d at 892 (quoting Air Line Pilots, 499 U.S. at 67). Although in hindsight the doctor’s note may have helped Coker’s case, the union rationally decided that the note might backfire by leaving too much of Coker’s long history of unscheduled absences unexplained. The union also reasonably feared that Coker’s statements conceding struggles with management would detract from its strategy of portraying Coker as ready to resume work and the Postal Service as punitive. These decisions, even if wrong in hindsight, were at most nothing more than negligent, and more than negligence is required to establish a breach. See id. at 893. Finally Coker does not explain how any supposed discrepancies in his attendance records would have altered the conclusion that his absences were unscheduled, which was the basis for his discharge. Moreover, although he sent these records to the union several months before the arbitration with an inquiry about discrepancies, he never raised the topic with Coleman when they strategized for the arbitration. The union thus cannot be faulted for not developing the issue.

Accordingly we AFFIRM the judgment.

Harold A. Baker, Judge.

XXX

Source: Findlaw

6 thoughts on “Illinois Mail Handler fired for attendance loses case against USPS, NPMHU

  1. As a postal employee ,now retired,for over 37 years, I have seen many cases like the Coker case. You have to come to work,period. There was so much abuse of sick leave that wouldn’t be tolerated in private industry.Postal workers take for granted all the benefits they have ,including a salary they would not receive in the private sector. Come to work ,do your job ,and you’ll have no trouble with anyone.If you truly are sick get a doctor’s note. But with the attendance record Coker had the Postal Service had no choice in the matter.

    • The sad part that I see is that many are not cut from the same piece of
      cloth as the old school group. We were taught if we didn’t do what we
      were told at school, or where ever. That we would be dealt with there, and again once we went home. The modern people would say that they
      were being abused. Ones mental toughness is a large factor in outlook.
      If a employee is suffering a mental condition. it can be hard to judge for
      the common person!.

  2. I would advise all postal workers in craft (management can take care of their own) to consider this case and be aware that poor attendance can cost you your job if management does their job right, which they did here. Thirty-two abscences, 20 of them LWOP in about three months is justification for removal, in my book.
    What this mail handler assumed, like a lot of people like him out there do, including one person in my office who is skating on very thin ice for the same thing, is that the union is some sort of super lawyer entity and can bail them out of every threatening situation. As a long time NALC officer, I had to remind people I was a blue collar (pun intended) letter carrier just like them and although I always did my best, I was not a lawyer. To blame his local for poor representation is ludicrous. He got what he deserved.
    People who constantly abuse their sick leave hurt their fellow craft employees. People have to take up the slack, and it makes for very long days. For city carriers it means usually having to have several carriers take a swing off that route, and in our office it’s almost always that same person who obviously doesn’t give a shit about her negative impact on others. If a person is out for legitimate reasons, such as illness, surgery for themselves or family members, nobody complains and indeed we support them as much as possible. Just not showing up is another matter.
    So as I will retire in a month’s time, let me share my sick leave story. After 32 years, I will have only about 125 hours to tack on my total service time. I had close to 1700 hours at one point, but my wife had several major surgeries and has had off and on poor health our whole marriage, her being disabled. Starting in 2008 I had stomach/hernia/gall bladder surgery all at once. Six weeks. Two years later my shoulder went bad, with stones in my triceps and nerve damage that made my arm hurt like hell and I couldn’t move it hardly at all. Six weeks SL. 2014 saw another hernia operation, again six weeks SL, and I will have cataract surgery in December for four weeks SL. None of this was planned, none of it could be avoided or delayed. This is what happens when we get older and the job wears us down.
    Having paid sick leave has been great – most places you just lose pay. So whatever you do, save that leave because you may really need it. There are other illnesses and injuries that can strike us and our families any time, so it is foolish to call in just because you don’t feel like showing up and you use a pathetic excuse like “the sniffles”. Use annual if you want time off. You will be very sorry if you burn your SL. The SL abuser in my office has run out of AL and SL a long time ago, called in three days in two weeks, and lost close to $600 gross pay because she didn’t want to show up because she was “stressed out”, another weak excuse in my opinion. You’re stressed? Well, get in line. I couldn’t afford my paycheck to be cut in half, could you?

    • You are a true fighter for your fellow workers in your craft. If their is
      something to be learned from a true leader like the lawyer concerning
      disability cases is that you have to have good Doctors to mold your case
      so that management can not misrepresent the facts. I just won a case today based on his advise. I would have hired him gladly, but he would
      not take my money based on my age. A word to the wise, the lawyer that
      has all these articles knows his stuff!.

      • Your idea about how much banked time one has is no indication of
        your job security. I once was of the same false belief. I like you am
        from the old school. First 12.5 years in child mistreatment, a bullet
        thru left lung, and liver missing my heart by a quarter of a inch at 13.
        You name the abuse, and I have felt it at least once. I find that to judge
        others by the same standard is useless to me. The thing you learn is to
        teach others what theirs values are, and to love them for who they are,
        and skip what they are not!.

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