The U.S. Court of Appeals, Second Circuit, issued a startling decision on June 16, 2010, in Jeunes v. Potter. The Court upheld the removal of a postal employee who “admits that he used profanity during a verbal altercation with a co-worker on October 26, 2007, conduct clearly proscribed by the zero tolerance policy.” The Court based its decision upon Connecticut District’s version of the zero tolerance policy, which bans “any type of vulgar language which would lead to a hostile workplace.”
Jeunes also filed suit against the National Rural Letter Carriers Association , arguing that the union had failed in its duty to represent him.
The US District Court for Connecticut has ruled in favor of the union. Here are some excerpts:
On October 26, 2007, while employed at the New Fairfield Connecticut USPS branch, Plaintiff had a verbal altercation with a co-worker on the work room floor. As a result, Plaintiff was placed on an off-duty status without pay on that date and terminated effective December 27, 2007. Plaintiff and Defendant dispute what exactly occurred on October 26, 2007. The USPS notice of removal informing Plaintiff of his termination states that several witnesses heard Plaintiff making vulgar and threatening remarks to a coworker and challenging him to a fight.
Plaintiff’s co-worker informed him of a package awaiting delivery on his route. The notice of removal alleges that Plaintiff responded to his co-worker with statements such as: “why you f***ing bothering me?” “what’s your f***ing problem,” “f***ing asshole,” f***ing pussy,” and “bring it on pussy.” (Def.’s Br. Summ. J. 4.) Plaintiff admits to making some of these comments but denies others. At least two other USPS employees who witnessed the incident signed statements confirming that Plaintiff used this language and threatened violence.
The USPS has a zero tolerance policy on violence, which states: “each and every act or threat of violence from this day forward will elicit an immediate and firm response that could, depending on the severity of the incident, include removal from the Postal Service.”
Prior to this incident, Plaintiff had been disciplined four times by the USPS. The USPS has previously sought Plaintiff’s removal for failure to disclose a criminal arrest on his employment application. In addition, in 2006, Plaintiff was suspended for seven days for poor attendance. In 2007, he was suspended for fourteen days for failure to follow instruction. In 2008, he was suspended for seven days for failure to be regular in attendance, unsatisfactory work performance and failure to follow instructions. Plaintiff also has a criminal record for assault and was arrested in 2005 in connection with a domestic altercation.
Plaintiff filed a grievance protesting his October 2007 off duty placement and November 2007 removal. He refused, however, to attend counseling through the employee assistance program, stating that the program “is for crazy people.” Defendant represented Plaintiff in his grievances through step three. However, after review by Mr. Anderson and general counsel, Defendant concluded that Plaintiff had no reasonable likelihood of success at arbitration.
On July 31, 2008, Mr. Anderson wrote Plaintiff informing him of Defendant’s initial decision and his right to provide additional information. Plaintiff provided no further information, but Mr. Anderson and the general counsel’s office reviewed Plaintiff’s file again after the twentyone day period. Both offices reached the same conclusion and Plaintiff’s grievance was withdrawn on August 25, 2008.
Plaintiff’s brief in opposition to summary judgment contains conclusory allegations that Defendant’s decision not to pursue arbitration was made in bad faith and was discriminatory. However, the record does not provide any evidence to support these allegations. In fact, the record reflects a reasoned, good faith decision on the part of Defendant and a Plaintiff unhappy with the outcome of his grievance but without a legal claim. It is clear that Plaintiff does not have an absolute right to arbitration either under the CBA or federal law.
Throughout the grievance process, Plaintiff was represented by Nate Gillotti. Plaintiff admits that he was satisfied by Mr. Gillotti’s handling of his grievance from steps one through three. Plaintiff’s only complaint regarding his representation is that “they didn’t take the case to arbitration.” Plaintiff offers no examples of discriminatory conduct or even negligent representation by his Union. Instead he states, “I just didn’t like the outcome.” When asked what Defendant could have done differently to fairly represent him, Plaintiff vaguely responded that the Union should have “fought better in these [prior] grievances I would have – – I wouldn’t be fired right now.”
Furthermore, the record reflects Defendant’s thorough and competent representation of Plaintiff’s claim. Defendant took witness statements, filed the appropriate grievance forms and wrote letters on behalf of Plaintiff. Defendant followed its usual procedures before deciding to withdraw Plaintiff’s grievance from arbitration. NRLCA Director of Labor Relations Anderson and NRLCA General Counsel Gan each reviewed all material relating to Plaintiff’s case. Based on the documentation, both offices made the reasonable determination that because of Plaintiff’s hostile and threatening behavior during the incident at issue, history of discipline, refusal to engage in counseling, criminal record and the zero tolerance policy, Plaintiff’s grievance had “no reasonable likelihood of success in arbitration.” Following this determination, Plaintiff was afforded the opportunity to provide the Union with additional information or arguments. Although Plaintiff did not provide any additional information, the file was still given a fresh and second look by both Mr. Anderson and attorney Jean Marc Favreau from the general counsel’s office. This fresh look did not result in a different conclusion and Mr. Gan recommended that the case be withdraw from arbitration.
Even taking this evidence in the light most favorable to Plaintiff, there is nothing in the record from which a reasonable jury could conclude that Defendant acted arbitrarily, in bad faith or with discriminatory motives.
There is no question of fact for a jury to decide.