Opinion
Case No. 02-CV-71335
September 27, 2002
Defendant United States Postal Service ("USPS") moves for dismissal/summary judgment of plaintiff Marc Love's claims of breach of contract, race and gender discrimination, and breach of a duty of fair representation. Defendant American Postal Workers Union ("APWU") also moves to dismiss plaintiffs claims. Oral argument would not significantly aid the decisional process. Pursuant to E.D. Mich. Local R. 7.1(e)(2), it is ORDERED that the motion be resolved without oral argument. For the reasons set forth below, defendant USPS's motion to dismiss/summary judgment will be GRANTED. Defendant APWU's motion for dismissal will also be GRANTED.
I. Background
Plaintiff Marc Love, appearing pro per , filed a complaint on April 12, 2002 alleging that he was fired from his position with defendant USPS on May 18, 2000, and that defendant APWU thereafter filed a grievance on his behalf. Plaintiff alleges that, as the result of a "split-decision" in arbitration, he was reinstated with no back-pay, and was also required to attend anger management training. Plaintiff alleges that APWU failed to secure a favorable witness at the August 1, 2001 arbitration hearing, one Danny Antich. Plaintiff alleges that APWU Vice President Robert Bank instructed one Gary Myrick "to get Danny Antich to the arbitration", but Myrick told plaintiff that Antich did not want to attend. Plaintiff alleges that, after the December 3, 2001 arbitration decision, he asked Antich whether Myrick had asked him to attend the arbitration hearing, and Antich responded "no one called." Plaintiff alleges that APWU's failure to contact Antich constituted a breach of contract and breach of APWU's duty of fair representation. Plaintiff further alleges that an unidentified USPS manager testified at arbitration that she had been plaintiffs supervisor for over one year even though plaintiff never met the woman before his August 1, 2001 arbitration hearing. Plaintiff continues that Myrick "grabbed me by my shoulder and refused to refute my cross examines [sic] . . . and the Arbitrator for racism." Finally, plaintiff alleges that "the Arbitrator on 1 Aug 2001 made comment about Polish Rep. and Counselee file discrimination based on his sex (male) when he was returned to work with back pay award as a result of an arbitrator's decision." Plaintiff alleges race discrimination.
The court notes that plaintiff misrepresented in the summons and return of service forms that he was represented by Attorney Lynn Shecter. The Assistant United States Attorney representing USPS states that she has contacted Attorney Shecter, who denied she was representing plaintiff. Attorney Shecter has not filed an appearance in this matter.
II. Motions for Dismissal/Summary Judgment
Defendant USPS filed a motion to dismiss/summary judgment on July 19, 2002 arguing plaintiff's claims should be dismissed because inter alia: (1) plaintiff has failed to allege an actionable claim of race or gender discrimination given it is undisputed that plaintiff was warned on two previous occasions that his physical or verbal threats would no longer be tolerated by USPS, and the April 12, 2000 discharge involved plaintiff's use of such threats; (2) the arbitrator determined that USPS had just cause to discipline plaintiff, but that discharge was too severe; (3) plaintiff has alleged no acts of unlawful discrimination against USPS; (4) plaintiff failed to exhaust his administrative remedies; (5) plaintiff cannot prove a hybrid breach of a duty of fair representation claim because plaintiff cannot prove that APWU acted arbitrarily, capriciously or in bad faith, and; (5) plaintiff has failed to allege a prima facie claim of breach of contract. Defendant APWU filed its own motion to dismiss on August 7, 2002 for lack of service of process arguing APWU was never properly served with the summons and complaint. Plaintiff has not filed a response to either motion.
Plaintiffs response to USPW's motion was due on August 12, 2002. Plaintiffs response to APWU's motion was due on September 23, 2002. See E.D. Mich. LR 7.1(d)(1)(B).
In opposing a motion for summary judgment, the non moving party cannot rest on its pleadings to avoid summary judgment, but must support its claim with some probative evidence. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied, 510 U.S. 976 (1993). When the validity of service of process is challenged in a motion to dismiss, the plaintiff has the burden of proving that service was, in fact, properly effected.Frederick v. Hydro-Aluminum S.A., 150 F.R.D. 120, 123 (E.D. Mich. 1994).
Plaintiff has not responded to the defendants' motions for dismissal/summary judgment and, consequently, has not met his evidentiary burdens of supporting his claims with probative evidence or proving that service was properly effected upon defendant APWU. While the court is aware of its duty to consider plaintiffs pro se status in deciding these motions, plaintiff has proffered nothing for the court to consider on his behalf.
The court notes that, under most circumstances, a plaintiff that has failed to effect proper service is usually given an opportunity to effect proper service before dismissal. However, defendant USPS has shown it is entitled to summary judgment of plaintiffs hybrid claim of breach of contract/breach of duty of fair representation as plaintiff cannot support a claim that his contract of employment was breached. To prevail against APWU on a breach of fair duty of fair representation claim, plaintiff was required to prove breach of his employment contract.DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983). With the dismissal of plaintiffs breach of contract claim as against USPS, plaintiff cannot possibly prevail on a breach of duty of fair representation claim against APWU. Accordingly, it would be futile to grant plaintiff leave to attempt proper service upon APWU. Plaintiff has failed to articulate a claim of race or gender discrimination as against USPS, or for that matter, against APWU.
III. Conclusion
Defendant United States Postal Service's motion for dismissal/summary judgment is hereby GRANTED. Defendant American Postal Workers Union's motion to dismiss is also hereby GRANTED. Plaintiff Marc Love's claims are hereby DISMISSED in their entirety.
SO ORDERED.