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McCreary v. Potter

March 27, 2003


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Pending before the Court are numerous motions filed by the parties in Linwood McCreary's lawsuit against the United States Postal Service ("USPS") for breach of a Collective Bargaining Agreement ("CBA") and William Burrus and Patricia Johnson for breach of the duty of fair representation. To address these various matters expeditiously, the Court will rule on all pending motions in this single Memorandum Opinion. For the reasons stated below, Defendants' motions to dismiss are GRANTED and Mr. McCreary's motions, except those made for amendment purposes, are DENIED.


The parties essentially agree on the facts, although they argue over their significance. Mr. McCreary is a Motor Vehicle Operator ("MVO") assigned to the Brentwood Postal Facility in Washington, D.C. Prior to the events at issue here, he collected bulk mail at night, including registered mail containing receipts and remittances, for delivery to Brentwood. Thereafter, an armored car company collected the registered mail "during daylight and in the security of postal police and a security fence." Amended Complaint ("Am. Compl.") ¶ 27. Mr. McCreary asserts that it is a violation of the CBA and 39 U.S.C. § 2010*fn1 to direct MVOs to collect registered mail containing receipts and remittances.

MVOs are part of a collective bargaining unit represented by the American Postal Workers Union ("National Union") and its chartered local union, the Nation's Capital Southern Maryland Area Local ("Local Union") (collectively, "Unions"). Mr. Burrus is president of the National Union and Ms. Johnson is president of the Local Union. The relevant CBA negotiated by the National Union is dated November 21, 2000, to November 20, 2003.*fn2 The bargaining unit consists of USPS employees in the clerk, maintenance, and motor vehicle service crafts nationwide, including MVOs and Window Clerk Technicians. A Window Clerk Technician is responsible for making deposits of receipts and remittances. In addition, USPS employs a security force staffed by uniformed Postal Police Officers. "The officers provide perimeter security [and] escort high-value mail shipments..., including registered mail containing receipts and remittances...." Id. ¶18.

On January 28, 1991, Mr. McCreary was kidnapped and robbed at gunpoint from the Friendship Heights Post Office in Washington, D.C. As a result, he states that he has been diagnosed with Post Traumatic Stress Disorder. According to the Amended Complaint, Mr. McCreary was suspended on August 19, 2002, when his doctor requested that Mr. McCreary be restricted from collecting receipts and remittances. His successor, a 28-year-old female, allegedly also refused to collect registered mail containing receipts and remittances; she was merely transferred to a different route. The Amended Complaint also asserts that USPS suspended Mr. McCreary for complaining about his treatment to Maryland Congressman Steny H. Hoyer. The question of the legitimacy of Mr. McCreary's suspension is pending before the Merit Systems Protection Board on Mr. McCreary's complaint and is not presently before the Court. See id. ¶ 52-54.

On February 6, 2002, Mr. McCreary requested that the Local Union file a grievance against USPS for violating the CBA when it requires MVOs to collect registered mail containing receipts or remittances. Six days later, the Local Union filed a class-action grievance, designated as No. BRB-5-2002. Article 15 of the CBA contains a three-step grievance process followed by binding arbitration. The grievance was denied at Step One, appealed by the Local Union, and denied by USPS at Step Two on April 1, 2002. The Local Union appealed to Step Three on April 15, 2002, and USPS denied the grievance again on May 24, 2002. On June 28, 2002, the National Union appealed the grievance to arbitration, where it is pending.


A. Legal Standards

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) should be granted when the plaintiff has not established by a preponderance of the evidence that the Court possesses subject matter jurisdiction over his claims. In reviewing such a motion, "it is well established in this Circuit that a court is not limited to the allegations in the complaint but may consider material outside of the complaint in an effort to determine whether the court has jurisdiction in the case." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 195 (D.D.C. 2002).

Summary judgment, on the other hand, is appropriate when the record shows that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not a "disfavored procedural shortcut" but a reasoned and careful way to resolve cases expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 328 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts, and reasonable inferences, in the light most favorable to the non-moving party. See Dunaway v. Int'l Brotherhood of Teamsters, 310 F. 3d 758, 761 (D.C. Cir. 2002). Any factual dispute must be capable of affecting the substantive outcome of the case to be considered "material" and "genuine." See Anderson, 477 U.S. at 247-48.

B. Non-Dispositive Motions

Aside from the parties' dispositive motions on the merits, various non-dispositive motions filed in this lawsuit need to be resolved.*fn3 The first set of such motions relates to the timing of USPS's response to the Amended Complaint. On January 6, 2003, Mr. McCreary filed a Motion for Judgment by Default against USPS. A few weeks later, on January 28, 2003, Mr. McCreary filed a Motion for Summary Judgment. Then, on February 12, 2002, Mr. McCreary filed a Motion to Vacate. Defendants have opposed these motions. As the record shows, these three motions are based on a mistake of fact.

Mr. McCreary filed his original Complaint on October 9, 2002, and an Amended Complaint on October 29, 2002. He later consented to an enlargement of time until February 7, 2003, for USPS to answer the Amended Complaint. Unfortunately, the proposed order submitted by USPS with its Motion for an Extension of Time – and ultimately signed by the Court – stated that USPS's Answer would be due on January 16, 2003. On January 9, 2003, USPS filed a Motion to Vacate and Correct Order to approve the extension of time to February 7, 2003. The Court granted that motion on February 10, 2003, retroactively so that USPS's response filed on February 7, 2003, was deemed timely. Mr. McCreary's motions related to USPS's alleged failure to respond timely to his Amended Complaint are all predicated on the incorrect notion that the USPS response was due on January 16, 2003. Therefore, inasmuch as the Court granted the consent motion to give USPS until February 7, 2003, to file ...

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