Simmons, Sebastian C v. Howard Univ ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 1998 Decided October 2, 1998
No. 97-7207
Sebastian C. Simmons,
Appellant
v.
Howard University and
Metropolitan Special Police Officers Federation,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv02879)
David W. Brown argued the cause and filed the briefs for
appellant.
Anita Barondes argued the cause for appellees. With her
on the brief were Michael F. Kleine and Mose Lewis, III.
Before: Ginsburg, Sentelle, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Plaintiff Sebastian Simmons sued
his former employer and the union that represented him
when he was employed by that employer, both under s 301 of
the Labor Management Relations Act, 29 U.S.C. s 185(a).
According to Simmons, the employer wrongfully fired him
and the union failed adequately to represent him in his effort
to get his job back. The district court granted summary
judgment for both defendants, and Simmons now appeals.
We affirm because Simmons' claim is untimely as a matter of
law.
I. Background
Simmons was employed by Howard University as a Special
Police Officer from 1989 until October, 1995, when he was
fired for "unprofessional conduct." As a member of the
Metropolitan Special Police Officers Federation, Simmons
asked Gregory Burroughs, the Union's Business Representa-
tive, to prosecute a wrongful termination grievance on his
behalf. Burroughs tried to do so but was repeatedly stymied
by the Union's Vice President. As a result, the Union took
no action on Simmons' complaint within the time limit for
initiating the grievance process established by the applicable
collective bargaining agreement.
Burroughs, who believed that the grievance procedure
could be re-opened, continued to press Simmons' grievance
with both Union and management officials. Burroughs also
kept Simmons abreast of his actions.
Simmons did not, however, rely exclusively upon the possi-
bility that Burroughs would persuade the Union to relent. In
January, 1996 he asked a lawyer to file suit on his behalf.
The lawyer apparently agreed but, for reasons that are not in
the record, failed to follow through. On March 20, 1996
Simmons himself filed an unfair labor practice charge with
the National Labor Relations Board alleging that the Union
had "refus[ed] to provide fair representation to him" in
connection with his termination. In April, 1996, however,
allegedly after being told by an NLRB agent that the agency
does not seek monetary damages, Simmons withdrew the
charge.
Meanwhile, Burroughs' attempts to persuade the Union to
take up Simmons' grievance continued until October, 1996,
when he was succeeded as Business Representative by Vin-
cent Westmoreland. Westmoreland, too, promised Simmons
that he would try to re-open the grievance, but after one such
attempt gave up the cause. Simmons filed this action on
December 31, 1996.
Both defendants moved for summary judgment on the
ground that Simmons' complaint was time-barred. The dis-
trict court granted defendants' motion, and for the following
reasons, we affirm.
II. Analysis
Simmons brings what the Supreme Court has referred to
as a "hybrid s 301/fair representation claim," so named be-
cause the plaintiff simultaneously charges the employer with
breach of the collective bargaining agreement and the union
with a breach of its statutory duty of fair representation.
DelCostello v. International Bhd. of Teamsters, 462 U.S. 151,
165 (1983). Such claims are subject to the six-month statute
of limitations provided in s 10(b) of the National Labor
Relations Act, 29 U.S.C. s 160(b), see 462 U.S. at 155, which
begins to run when "the claimant discovers, or in the exercise
of reasonable diligence should have discovered, the acts con-
stituting the alleged violation." Vadino v. A. Valey Eng'rs,
903 F.2d 253, 260 (3rd Cir. 1990) (quoting Metz v. Tootsie Roll
Indus., 715 F.2d 299, 304 (7th Cir. 1983); see also Cohen v.
Flushing Hosp. and Med. Ctr., 68 F.3d 64, 67 (2d Cir. 1995);
Adams v. The Budd Co., 846 F.2d 428, 431 (7th Cir. 1988);
Proudfoot v. Seafarer's Int'l Union, 779 F.2d 1558, 1559 (11th
Cir. 1986).
As Simmons points out, application of this standard often
leads to fact-intensive disputes not amenable to resolution
through summary judgment. Not so in this case, however.
An unbroken string of precedent supports the proposition
that when a plaintiff accuses his union of a breach of the duty
of fair representation in a charge filed with the NLRB, he has
by then, as a matter of law, "discovered" the grounds for his
hybrid s 301 claim. See Washington v. Service Employees
Int'l Union, Local 50, 130 F.3d 825, 826 (8th Cir. 1997) (hybrid
s 301 claim accrued when plaintiff filed NLRB charge); Liv-
ingstone v. Schnuck Mkt., Inc., 950 F.2d 579, 583 (8th Cir.
1991) (same); Adams, 846 F.2d at 431 (same); Arriaga-
Zayas v. International Ladies' Garment Workers' Union, 835
F.2d 11, 13 (1st Cir. 1987) (claim accrued when plaintiffs filed
"informative motion" with Puerto Rico Labor Relations Board
detailing union's alleged failure adequately to represent
them); Gustafson v. Cornelius Co., 724 F.2d 75, 79 (8th Cir.
1983) (claim accrued when plaintiff filed NLRB charge); see
also Cohen, 68 F.3d at 67 (claim accrued when plaintiff wrote
letter to Anti-Defamation League complaining of union's
failure to represent him).
Simmons contends that the "discovery" rule is inapplicable
to his claim in view of his reliance upon the efforts of
Burroughs and Westmoreland, the Business Representatives,
to re-open his grievance. Because a rational juror could find
Simmons reasonably believed that they would ultimately suc-
ceed, he suggests, such a juror could also find that he was
unaware of the acts constituting the Union's alleged breach.
The latter proposition, however, does not follow from the
former. Burroughs' and Westmoreland's representations did
not render Simmons unaware of the factual basis of his claim;
neither, therefore, did they prevent its accrual. See Cohen,
68 F.3d at 68 (any hope plaintiff had that union would change
its position is immaterial for statute of limitations purposes
once plaintiff has articulated the grounds for his s 301 claim);
Arriaga-Zayas, 835 F.2d at 15 (arbitration between union
and employer did not prevent plaintiffs' hybrid s 301 claim
from accruing when it was unclear whether union's represen-
tation of plaintiffs in arbitration proceeding would be ade-
quate). Moreover, even if there was some possibility after
June 30, 1996 (six months before Simmons filed this suit) the
Union would reopen his grievance--indeed, even if there is
still such a possibility--that would not mean that the Union
had not already breached its duty of fair representation;
reopening Simmons' grievance after the deadlines provided in
the collective bargaining agreement had passed might have
remedied, but it could not prevent, the Union's breach.
Simmons' argument can be recast in terms not of when his
claim accrued but of whether the statute of limitations was
tolled by his reliance upon the representations of Burroughs
and Westmoreland. The statute of limitations for a hybrid
s 301 claim may be tolled when the plaintiff is fraudulently
induced to delay filing his suit, see Demchik v. General
Motors Corp., 821 F.2d 102, 105 (2d Cir. 1987) or in good faith
attempts to exhaust grievance procedures, see Lucas v.
Mountain States Tel. & Tel., 909 F.2d 419, 421-22 (10th Cir.
1990). Neither ground is available to Simmons, however.
He does not claim that any officer of the Union misled him in
any way. Nor was his delay in filing suit occasioned by the
need to exhaust the grievance procedure, as to which he had
done all he could when he asked Burroughs to pursue his
grievance. Thus, as Simmons testified at his deposition, he
went to his first attorney "to file a lawsuit," not to help him
pursue his grievance. Indeed, Simmons was at a loss to
explain why the attorney did not file a suit. Therefore, while
Simmons may have believed that Union action was still
possible in the Fall of 1996, it was not because he had yet to
exhaust the grievance procedure; hence the statute of limita-
tions was not tolled.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.