                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2005

Podobnik v. US Postal Ser
Precedential or Non-Precedential: Precedential

Docket No. 04-3059




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                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-3059


                PHILIP J. PODOBNIK

                                      Appellant

                           v.

 UNITED STATES POSTAL SERVICE; NATIONAL
RURAL LETTER CARRIERS ASSOCIATION; JOHN E.
  POTTER, Postmaster General of the United States




    On Appeal from the United States District Court
       for the Western District of Pennsylvania
                (D.C. No. 01-cv-00192)
    District Judge: Honorable Donetta W. Ambrose


   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                     May 3, 2005

Before: McKEE, VAN ANTWERPEN, and WEIS, Circuit
                    Judges
                    (Filed: May 5, 2005)

Mark J. Bushnell, Esq.
Bushnell Law Firm, P.C.
2202 Koppers Building
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219-1818
Counsel for Appellant

David C. Belt, Esq.
United States Postal Service, Appellate Division
475 L’Enfant Plaza, SW
Washington, D.C. 20260-1127
Counsel for Appellee United States Postal Service

Mark Gisler, Esq.
Peer & Gan LLP
1730 Rhode Island Avenue, NW
Suite 307
Washington, D.C. 20036
Counsel for Appellee National Rural Letter Carriers’
Association




                   OPINION OF THE COURT




VAN ANTWERPEN, Circuit Judge.

                             2
       Before us is an appeal from the United States District
Court for the Western District of Pennsylvania granting
summary judgment in favor of Appellees United States Postal
Service (“USPS”) and National Rural Letter Carrier
Association (“NRLCA”). Before the District Court, Philip J.
Podobnik (“Appellant”) alleged that USPS violated both the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §
621, et. seq., and the collective bargaining agreement that
existed between USPS and NRLCA.1 He further alleged that
NRLCA breached its duty to fairly represent him. Because
we conclude that all of Appellant’s claims are either untimely
or unexhausted, we affirm the Order of the District Court
adopting the Report and Recommendation of the Magistrate
Judge.


  1
    Such an allegation alleges a breach of 39 U.S.C. § 1208(b),
which is the parallel provision to section 301 of the Labor
Management Relations Act of 1947, 29 U.S.C. § 185(a),
addressing specifically claims “for violations of contract
between the Postal Service and a labor organization representing
Postal Service employees.” 29 U.S.C. § 1208(b) (1999). The
language of section 1208(b) is nearly identical to that of section
301; hence, other circuits have used cases interpreting section
301 to interpret section 1208(b). See, e.g., Miller v. U.S. Postal
Serv., 985 F.2d 9, 10 n.1 (1st Cir. 1993); Columbia Local, Am.
Postal Workers Union, AFL-CIO, v. Bolger, 621 F.2d 615, 617
(4th Cir. 1980); Nat. Ass’n of Letter Carriers, AFL-CIO v. U. S.
Postal Serv., 590 F.2d 1171, 1176 (D.C. Cir. 1978); Nat. Ass’n
of Letter Carriers, AFL-CIO v. Sombrotto, 449 F.2d 915, 918
(2d Cir. 1971).

                                3
                          I. FACTS

        Appellant was born on August 17, 1929, and was
employed as a rural letter carrier with USPS’s Monroeville,
Pennsylvania division from March 25, 1969, until his
retirement on March 31, 1998. For the entire length of his
employment with USPS, Appellant’s union representative was
NRLCA.2 As he was a rural carrier, Appellant was not paid
for a “traditional” eight-hour work day, as would a city letter
carrier. Rather, his compensation was based on the number of
pieces of mail he delivered, the mailboxes he served, and the
mileage he traveled. Appellant was required to work as long
as necessary to complete his daily rounds, which he contends
required between 54 and 56 hours per week.

       Sometime in 1993, the Monroeville Post Office
attempted to adjust Appellant’s route downward by
transferring approximately 40% of his route to a younger city
mail carrier. Because this was a substantial adjustment
downward, Appellant’s compensation would have been
dramatically reduced. He contacted his NRLCA union


    2
       A collective bargaining agreement between USPS and
NRLCA existed both in 1993 and in 1998 (the years in which
Appellant alleges age discrimination occurred). Joint Appendix
at 953-1078 and 258-354.         Appellant acknowledged at
deposition that he was in possession of at least one copy of a
collective bargaining agreement between USPS and NRLCA,
and that he “probably” had looked at it before. However, it is
unclear to which agreement he was referring.

                              4
steward, Helen Malarik, but did not file a grievance at any
time. Through Malarik’s efforts, Appellant was able to
request that the smallest leg of his route be transferred to
another rural letter carrier also represented by NRLCA.
Ultimately, all parties agreed to the downward adjustment of
Appellant’s route, which he found to be a “great relief.”

        On April 22, 1997, Appellant’s immediate supervisor
followed him on his route and observed him commit three
vehicle safety violations: (1) driving in excess of the 45 miles
per hour speed limit; (2) changing lanes without using turn
signals; and (3) dismounting from his vehicle without shutting
off the engine. For these infractions, Appellant was
suspended for 14 days and had his driving privileges
suspended for 60 days. The next day, Appellant filed a
USPS-NRLCA “Joint Step 1 Grievance Form” disputing
these charges. NRLCA intervened on Appellant’s behalf, and
a “Step 2 Grievance Settlement” was reached which reduced
his term of suspension to time already served.3


    3
        Article 15 of the collective bargaining agreement requires:

a. Any employee who feels aggrieved must discuss the
grievance with the employee’s immediate supervisor within
fourteen (14) days of the date on which the employee or the
Union has learned or may reasonably have been expected to
have learned of its cause.

*         *      *


                                  5
        On March 2, 1998, Appellant was again followed and
again charged with three safety violations: (1) unnecessary
backing up of his vehicle; (2) leaving his vehicle’s engine
running while it was parked and while he was inside various
addresses delivering mail; and (3) leaving his vehicle
unlocked and unsecured with mail in it. On March 5, 1998,
Appellant went to the Pittsburgh branch of the Equal
Employment Opportunity Commission (“EEOC”) to file an
age discrimination claim. While filling out an EEOC Intake
Form, an EEOC representative told him that he would have to
pursue any discrimination claim through USPS’s Equal
Employment Opportunities office. Appellant did not ask for
clarification, but claims to have thought that he had to file his
complaint directly with his USPS supervisors (which he
deemed futile) instead of a USPS employment counselor. In
any event, he did not complete an EEOC Intake Form, and did
not pursue his claim further with USPS.

      On March 10, 1998, Appellant and Malarik had a
meeting with his USPS supervisors.4 At that meeting, the



c. If no resolution is reached during such discussion, the
supervisor shall promptly annotate a joint Step 1 grievance form,
indicating briefly the issue and the date of the initial discussion,
which constitutes the Step 1 filing date.
  4
    Appellant characterizes this meeting as a “Step 1 Grievance
Procedure,” while Appellees characterize it as a “pre-
disciplinary hearing.” Regardless of which term is used, it is
uncontested that no joint Step 1 Grievance Form was annotated

                                 6
supervisors indicated their intent to terminate Appellant, and
he was given a letter entitled “Notice of Proposed Removal,”
proposing to discharge him within 30 days for the vehicle
safety violations that had been observed in 1997 and 1998.
This notice stated that Appellant had the option, under the
collective bargaining agreement, to file a grievance within 14
days. Also during the meeting, USPS offered Appellant the
opportunity to retire in lieu of termination, thereby allowing
him to keep his pension. On March 31, 1998, Appellant
officially retired. He never filed a grievance, nor did he
request that NRLCA do so.

        On October 11, 2000, Appellant met with his attorney
in connection with a Social Security matter. At that meeting,
Appellant relayed the situation surrounding his 1993 route
reduction and 1998 retirement. At that time he claims that,
with the help of his attorney, he became aware that he had
viable claims against USPS and NRLCA. He also concedes
that, between his retirement and his October 11, 2000,
meeting with his attorney, he undertook no independent
investigation of his case and did not learn any new facts. On
October 12, 2000, Appellant filed a document with the EEOC
entitled “Intent to Sue Pursuant to 29 U.S.C. § 633a(d).”

       On January 25, 2001, Appellant filed a Complaint in
United States District Court against USPS and NRLCA,
alleging, inter alia, various state law claims against NRLCA.
On March 26, 2001, NRLCA sought to dismiss Appellant’s


at the conclusion of this meeting, ending the grievance process.

                               7
claims as preempted under federal law. On October 31, 2001,
United States Magistrate Judge Ila Jeanne Sensenich granted,
without prejudice, NRLCA’s Motion to Dismiss the counts of
the Complaint not involving fraud or collusion. On
November 16, 2001, Appellant filed a three-count Amended
Complaint against USPS and NRLCA. Count I alleged that
USPS discriminated against him on the basis of his age when
it reduced his mail delivery route in 1993 and notified him in
March 1998 that it intended to terminate his employment.
Count II alleged that USPS breached its collective-bargaining
agreement with the NRLCA when it sought to terminate
Appellant’s employment. Count III alleged that NRLCA
breached its duty of fair representation. The United States
District Court for the Western District of Pennsylvania
referred the case to Magistrate Judge Sensenich for
consideration of all pretrial matters. Appellant, USPS and
NRLCA all moved for summary judgment. By Report and
Recommendation, the Magistrate Judge denied Appellant’s
Motion for Summary Judgment and granted USPS and
NRLCA’s Motion for Summary Judgment, finding that
Appellant’s claims were time-barred. By Memorandum
Order, the District Court adopted the Magistrate’s Report and
Recommendation. This timely appeal followed.

  II. JURISDICTION AND STANDARD OF REVIEW

      The District Court had original jurisdiction over
Appellant’s Age Discrimination in Employment Act




                              8
(“ADEA”) claim and “hybrid” section 301 claim 5 pursuant to
28 U.S.C. § 1331. Our jurisdiction is grounded in 28 U.S.C. §
1291, as the District Court’s grant of Appellees’ Motion for
Summary Judgment was a final and appealable order.

        We review the District Court’s grant of summary
judgment in favor of Appellees de novo. Blair v. Scott
Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002); Torres
v. McLaughlin, 163 F.3d 169, 170 (3d. Cir. 1998). When
reviewing the propriety of a grant of summary judgment, we
apply the same test a district court should have applied.
Bucks County Dept. of Mental Health/Mental Retardation v.
Pennsylvania, 379 F.3d 61, 65 (3d Cir. 2004); Morton Intern.,
Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 679 (3d Cir.
2003); Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951 (3d
Cir. 1996). That is, a grant of summary judgment is
appropriate only where the moving party has established that
there is no genuine dispute of material fact, and “the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Emory v. AstraZeneca Pharm. LP, 401 F.3d 174, 179 (3d Cir.
2005). Where the defendant is the moving party, the initial


    5
       “A hybrid section 301 action is one in which a union
member sues his or her employer for breaching its contractual
obligations under the collective bargaining agreement and the
union for breaching the duty of fair representation.” Beidleman
v. Stroh Brewery Co., 182 F.3d 225, 236 (3d Cir. 1999) (citing
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-165
(1983)) (internal quotations marks omitted).

                               9
burden is on the defendant to show that the plaintiff has failed
to establish one or more essential elements to her case. See
Celotex Corp., 477 U.S. at 323-24. On a motion for summary
judgment, a district court must view the facts in the light most
favorable to the non-moving party and must make all
reasonable inferences in that party’s favor. Marzano v.
Computer Sci. Corp., 91 F.3d 497, 501 (3d Cir. 1996) (citing
Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).

                      III. DISCUSSION

        Despite the lengthy record and briefs in this case, the
questions before us are relatively narrow. As to Appellant’s
ADEA claim against USPS, we must determine whether the
accrual date was delayed by the discovery rule, or
alternatively whether the limitations period was equitably
tolled. As to his hybrid section 301 claim against USPS and
NRLCA, we must determine whether Appellant’s failure to
file a grievance with regard to his 1998 retirement in lieu of
termination bars his recovery. We shall take each question in
turn, remembering that Title VII limitations provisions are
part of a body of humanitarian legislation that must be
interpreted in a humane and commonsensical manner, so as to
prevent unnecessarily harsh results in particular cases.
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994).

A. Appellant’s ADEA Claim

       Appellant first claims that his 1993 route reduction and
his 1998 retirement in lieu of termination both constitute

                              10
impermissible age discrimination. “All personnel actions
affecting employees or applicants for employment who are at
least 40 years of age . . . in the United States Postal Service
and the Postal Rate Commission . . . shall be made free from
any discrimination based on age.” 29 U.S.C. § 633a(a)
(1999). An employee covered by this provision has

       two alternative routes for pursuing a claim of
       age discrimination. An individual may invoke
       the EEOC’s administrative process and then file
       a civil action in federal district court if he is not
       satisfied with his administrative remedies. See
       29 U.S.C. § 633a(b) and (c). A federal
       employee complaining of age discrimination,
       however, does not have to seek relief from his
       employing agency or the EEOC at all. He can
       decide to present the merits of his claim to a
       federal court in the first instance. See [29
       U.S.C.] § 633a(d).

Stevens v. Dep’t of Treasury, 500 U.S. 1, 5-6 (1991). If an
individual alleging age discrimination has not filed a
complaint with the EEOC, he may not file a civil action under
section 633a until he has given the EEOC at least thirty-days
notice of an intent to file such action. 29 U.S.C. § 633a(d)
(1999). This notice must be filed within 180 days of the date
when the alleged unlawful practice occurred. Id.

        It is undisputed that Appellant submitted an Intent to
Sue Letter to the EEOC on October 12, 2000. Because he
retired on March 31, 1998, his retirement date is the latest

                                11
possible date that USPS could have engaged in any
discriminatory behavior toward him. Thus, Appellant had
until September 27, 1998, to file his Intent to Sue Letter, and
his letter of October 12, 2000, was therefore untimely. The
District Court concluded as such, and granted summary
judgment in favor of USPS. On appeal, Appellant argues
both that the discovery rule extended the date on which his
injury accrued, and the doctrine of equitable tolling halted the
limitations clock, thus making his Intent to Sue Letter timely.
As did the District Court, we reject these two arguments.

       1. Discovery Rule

        “As a general rule, the statute of limitations begins to
run when the plaintiff’s cause of action accrues . . . the
accrual date is not the date on which the wrong that injures
the plaintiff occurs, but the date on which the plaintiff
discovers that he or she has been injured.” Oshiver, 38 F.3d
at 1385 (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446
(7th Cir. 1990)) (emphasis in original). That is not to say that
the accrual date is when a plaintiff learns he has been the
victim of a legal wrong. Rather, a claim accrues as soon as a
potential plaintiff either is aware, or should be aware after a
sufficient degree of diligence, of the existence and source of
an actual injury. Keystone Ins. Co. v. Houghton, 863 F.2d
1125, 1127 (3d Cir. 1988); see also Cada, 920 F.2d at 450.
The discovery rule delays the initial running of the statute of
limitations, but only until the plaintiff has discovered: (1) that
he or she has been injured; and (2) that this injury has been
caused by another party’s conduct. New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116, 1124 (3d Cir. 1997).

                               12
Thus, the question is on what date did Appellant discover that
he had suffered an actual injury.

        While we understand Appellant to be citing both his
1993 route reduction and his 1998 retirement as instances of
age discrimination, we shall dispense with both concurrently.
Appellant had actual knowledge of his route reduction
immediately, since he participated in and agreed to the
reduction. Furthermore, he had actual knowledge of USPS’s
intent to terminate him on March 10, 1998.6 Appellant
contends that USPS’s 1993 route reduction and 1998 intent to
terminate or retire him was on account of his age, that this
was not apparent to him until October 11, 2000 (the day he
met with his attorney), and therefore the limitations period did
not begin to run until then. Specifically, he contends that he
“did not know he had a possible injury until then.” Brief of
Appellant at 38. We read this as meaning that Appellant did
not know he had a possible legal injury resulting from the
1993 or 1998 actions until after meeting with his attorney.
However, the discovery rule is concerned with knowledge of
actual injury, not legal injury.



   6
      While Appellant has not alleged that USPS engaged in a
broad pattern and practice of age discrimination with regard to
forced retirement, we have previously held that an early
retirement program designed to force employees who reach a
senior age to leave or face significant pressure to resign or retire
might itself create an inference of age discrimination. Sempier
v. Johnson & Higgins, 45 F.3d 724, 732 (3d Cir. 1995).

                                13
        Appellant does not claim he was unaware that USPS
reduced his route in 1993 or that he was unaware he had been
served with a Notice of Proposed Removal on March 10,
1998. These are the only dates on which any alleged injury
occurred. Therefore, the latest date on which Appellant’s
claim could have possibly accrued was March 31, 1998, his
last day of employment.7 The discovery rule does not excuse
his failure to file his Intent To Sue Letter more than two years
after the 180-day limitations period had expired. Were we to
extend the reach of the discovery rule to delay accrual until a
plaintiff learned that a legal injury had occurred, as Appellant
requests, a statute of limitations would become effectively
meaningless, as a plaintiff could, through ignorance or fraud,
bring an age discrimination claim at any point in his lifetime,
regardless of how long ago the underlying acts had occurred.
We decline this invitation, and conclude that the discovery
rule does not save Appellant’s untimely ADEA claim.

       2. Equitable Tolling

        Because the time limitations set forth in Title VII are
not jurisdictional, they may be modified by equitable
concerns, such as tolling. Oshiver, 38 F.3d at 1387 (citing
Hart v. J.T. Baker Chem. Co., 598 F.2d 829, 831 (3d Cir.
1979)). The doctrine of equitable tolling stops a statute of
limitations period from running after a claim has accrued, id.,


  7
    We note that this is a generous date, since it is quite clear to
us that Appellant was aware of each of the employment
decisions as they happened.

                                14
but should be applied “sparingly.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“We have
generally been much less forgiving in receiving late filings
where the claimant failed to exercise due diligence in
preserving his legal rights.”). Appellant bears the burden of
proving that the equitable tolling doctrine applies here.
Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997).
There are three principal situations in which equitable tolling
is appropriate: (1) where the defendant has actively misled the
plaintiff respecting the plaintiff’s cause of action, and that
deception causes non-compliance with an applicable
limitations provision; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his
rights; or (3) where the plaintiff has timely asserted his or her
rights mistakenly in the wrong forum. Oshiver, 38 F.3d at
1387 (citing Sch. Dist. of City of Allentown v. Marshall, 657
F.2d 16, 19-20 (3d Cir. 1981)). Appellant makes four
arguments in support of his contention that equitable tolling is
appropriate here. He claims that (1) he was fooled into
believing that his route was reduced because he was
overworked, and that the safety violations he had committed
were the basis for his forced retirement; (2) he was misled by
the advice of an employee of the EEOC Pittsburgh office; (3)
he timely filed a claim with the EEOC in Pittsburgh; and (4)
his local USPS office failed to post an EEOC notice as
required by law. Our review leads us to agree with the
District Court that there is no basis to equitably toll the
limitations period of Appellant’s ADEA claim, which we
have already concluded accrued no later than March 31, 1998.


                               15
       Moving to his first argument, we conclude, even
assuming Appellant’s 1993 route reduction and his 1998
retirement were pretext for age discrimination, his
noncompliance with the 180-day statute of limitations period
was not the result of his being misled by USPS. We find
principal support for our conclusion in Appellant’s own
words. With regard to his 1993 route reduction, Appellant
stated at deposition that he first suspected that this action was
caused by age discrimination while he “was in the service.”
Joint Appendix at 378. Reading this statement as generously
as possible (since Appellant was unable at deposition to
narrow the time frame to any degree), this means Appellant
suspected his age played an unlawful part in his route
reduction between 1993, and March 31, 1998. Giving
Appellant every benefit of the doubt, this means that
Appellant was not deceived into believing his route reduction
was the result of being overlooked as late as March 31, 1998.
Since Appellant took no action with regard to the 1993
reduction within 180 days of his retirement, tolling cannot
excuse his untimely complaint. Appellant’s tolling argument
with regard to his forced retirement fares little better. When
asked why he went to the Pittsburgh EEOC office on March
5, 1998, he replied:

       The reason I went there was I felt that I was
       discriminated upon because of my age and that
       this EEOC was an organization set up by our
       government to mitigate or make easier or harder
       for employers to get rid of you because of age,
       and if I could prove that that was the case, I
       could go back to work.

                            16
Id. at 434. Appellant cannot realistically argue that he was
misled to believe that the safety infractions he committed
were the basis for his forced retirement when it is undisputed
that he went to the EEOC office three days later to complain
that these infractions were pretext for age discrimination.
Regardless of whether the safety infractions were in fact
pretext, Appellant clearly was not deceived.8

        Turning to his second argument, Appellant claims that
the EEOC misled him by telling him to file his discrimination
complaint with “the Post Office.” Appellant claims he began
filling out an EEOC complaint, but was stopped and
instructed to file with USPS instead. Even if we were to
ignore the fact that Appellant’s Complaint seems to indicate
he was given correct advice, see Joint Appendix at 21 (stating
that the EEOC “told Plaintiff that he had to pursue his claim
through Defendant USPS’ agency EEO” (emphasis added)),
any errant advice Appellant may have received from an
EEOC employee did not rise to the level of an “extraordinary”
circumstance justifying tolling of the limitations period. We
have previously noted that “running throughout the equitable
estoppel cases is the obligation of the plaintiff to exercise due
diligence to preserve his or her claim.” Robinson v. Dalton,
107 F.3d 1018, 1023 (3d Cir. 1997) (holding that “one phone
conversation with an EEO counselor [where erroneous advice
was given] does not rise to the level of being prevented in an


   8
     We need not make any judgment as to whether the route
reduction or the forced retirement were accomplished by actual
fraud on the part of USPS.

                               17
‘extraordinary way’ by the EEOC from asserting [one’s]
rights”). There is nothing in the record to indicate that,
following this interaction with the Pittsburgh EEOC office,
Appellant further pressed his claim in any forum until October
2000. Appellant was under a continuing duty to diligently
pursue any claim of age discrimination. Had he done so, a
more thorough review of the substance of his interaction with
the EEO employee would be required. However, since
Appellant took no further action, he cannot benefit from
tolling on this point.

        Appellant’s third argument, that he in fact did timely
file a claim with the EEOC on March 5, 1998, seems to belie
his first two arguments, as filing an EEOC claim would
demonstrate that he believed that he had been the victim of
age discrimination, and that he had not been misled by an
EEO employee into failing to properly file his claim.
Ignoring this discrepancy, this allegation does not bring
Appellant within the “filing in the wrong forum” portion of
the equitable tolling doctrine. Since it is undisputed that
Appellant did not complete an EEOC Intake Questionnaire, it
is clear to us that the EEOC received no complaint from
Appellant at any point in March, 1998. Therefore, Appellant
cannot claim he filed a discrimination complaint in the wrong
forum.

        Finally, Appellant’s fourth argument is that USPS’
failure to post an EEOC notice detailing his rights tolls the




                               18
limitations period.9 While it is true that all employers must
conspicuously post a notice to be prepared or approved by the
EEOC setting forth information regarding the ADEA, 29
U.S.C. § 627, it is also true that failure to post the required
notice will toll the running of the 180-day period until the
aggrieved person seeks out an attorney or acquires actual
knowledge of his rights under the ADEA. Bonham v. Dresser
Indus., Inc., 569 F.2d 187, 193 (3d Cir. 1977). Here,
Appellant’s decision to go to the EEOC office on March 5,
1998, makes clear that he was aware that he could file an age
discrimination claim. The absence of an EEOC notice did not
prejudice him, and as such is no basis to toll the limitations
period.

        Because it is undisputed that Appellant took no action
on his ADEA claim between March 31, 1998, and October
12, 2000, and because we conclude he cannot benefit from
either the discovery rule or equitable tolling, the District
Court properly found that his ADEA claim was time-barred.

B. Appellant’s Hybrid Section 301 Claim

       Appellant also claims that USPS violated the collective
bargaining agreement between it and NRLCA, and that
NRLCA violated a duty of fair representation owed to him.


   9
     We note there is a dispute of fact as to whether or not the
EEOC notice was in fact posted by USPS in the Monroeville
office. However, this is immaterial as either version of the facts
leads us to the same legal conclusion.

                               19
“Such a hybrid action really alleges that the process of
collective bargaining has broken down.” United Steelworkers
v. Crown Cork & Seal Co., 32 F.3d 53, 58 (3d Cir. 1994).
This type of claim is subject to a six-month statute of
limitations period. DelCostello, 462 U.S. at 172. With regard
to a section 301 claim, the limitations period commences
“when the claimant discovers, or in the exercise of reasonable
diligence should have discovered, the acts constituting the
alleged violation.” Vadino v. A. Valey Eng’rs., 903 F.2d 253,
260 (3d Cir. 1990). The limitations period for a fair
representation claim begins to run when the plaintiff knows or
reasonably should know of the acts contributing to the union’s
wrongdoing in failing to adequately represent the member’s
interests. Miklavic v. USAir, Inc., 21 F.3d 551, 556 (3d
Cir.1994). Because it is undisputed that Appellant did not file
his hybrid claim within six months of his retirement,10
Appellant has no choice but to argue that the limitations
period should be tolled.

        NRLCA urges us to adopt an approach where the
statute of limitations period may be tolled if (1) the plaintiff is
fraudulently induced to delay filing his suit, see Simmons v.
Howard Univ., 157 F.3d 914, 917 (D.C. Cir. 1998), or (2) in
good faith, the plaintiff attempts to exhaust the applicable
grievance procedures, see Lucas v. Mountain States Tel. &
Tel., 909 F.2d 419, 421-22 (10th Cir. 1990). We need not


   10
      Again, we give Appellant the benefit of the fiction that he
first gained knowledge of this alleged injury on the last date of
his employment.

                                20
reach the question of tolling the statute of limitations period,
however. In hybrid section 301 claims, a plaintiff “must
prove that the employer breached the collective bargaining
agreement in order to prevail on the breach of duty of fair
representation claim against the union and vice versa.” Felice
v. Sever, 985 F.2d 1221, 1226 (3d Cir. 1993). The Supreme
Court instructs that, where a collective bargaining agreement
establishes a grievance procedure, an employee must at least
attempt to exhaust such a process. Vaca v. Sipes, 386 U.S.
171, 185 (1967). An employer cannot be held liable for
breach of a collective bargaining agreement unless it can be
shown that the employee unsuccessfully sought relief through
the union grievance procedure. Id. It is undisputed that
Article 15 of the collective bargaining agreement between
USPS and NRLCA establishes a grievance procedure.
Therefore, the question before us is whether Appellant
diligently attempted to utilize the established grievance
process.

       As the District Court noted, Appellant admitted that he
did not file a grievance concerning his March 10, 1998,
Notice of Intent to Terminate. Joint Appendix at 570. At
most, Appellant claims to have initiated the “Step 1 Grievance
Procedure” by contacting his union steward and requesting
that she accompany him to discuss his grievance with his
immediate supervisor. Nowhere does he argue that he
declared any intent to grieve or that he signed a Joint Step 1




                              21
Grievance Form.11 By the terms of the collective bargaining
agreement, a grievance commences when an employee meets
with his supervisor and declares that he has a grievance.
From the record, it is apparent that Appellant and his union
steward met with his supervisors on March 10, 1998, where
he was given the choice of retiring so he would not lose his
pension, or being terminated for his several safety violations.
He chose the former option, and chose not to pursue the
grievance process further. As such, Appellant must argue that
exhaustion of the grievance process was somehow excused.

        Appellant notes that the Supreme Court has advanced
at least three exceptions to the requirement of total exhaustion
of grievance remedies under a collective bargaining
agreement: (1) where the employer’s conduct repudiates
contractual remedies; (2) where use of grievance procedures
would be futile; and (3) where the union breaches its duty by
wrongfully refusing to process a grievance. Clayton v. Int’l
Union, U.A.W., 451 U.S. 679, 689 (1981); see also Vaca, 386
U.S. at 185. Appellant attempts to seek refuge in these
exceptions. However, other than accusations substantiated
with nothing more than conclusory allegations of fraud and
collusion, he presents no evidence to establish that any one of
these exceptions is applicable. To survive summary
judgment, a party must present more than just “bare
assertions, conclusory allegations or suspicions” to show the
existence of a genuine issue. Celotex Corp., 477 U.S. at 325.


   11
     Indeed, Appellant concedes in his brief that the grievance
was ended at the meeting.

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Appellant does not explain why his failure to press his
grievance further (by having the Step 1 Grievance Form
annotated) was caused by malfeasance on the part of USPS,
nor does he supply evidence demonstrating that use of the
grievance procedure would have been futile or that NRLCA
acted against his interests. Therefore, we cannot excuse his
failure to exhaust the grievance process before bringing his
hybrid section 301 claim.

        As it is undisputed that Appellant did not attempt to
first resolve the dispute via the grievance process, he cannot
sue USPS for any alleged breach of the collective bargaining
agreement, and consequently cannot sue NRLCA for any
alleged breach of the duty of fair representation. See Felice,
985 F.2d at 1226. Therefore, the District Court properly
dismissed his hybrid section 301 claim in its entirety.

       For these reasons, we affirm the decision of the
District Court.




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