Simmons, Sebastian C v. Howard Univ

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.