                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 19 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    VICKI L. POOLE; BERT POOLE,

                Plaintiffs-Appellants,

    v.                                                    No. 02-7144
                                                    (D.C. No. 02-CV-431-S)
    SOUTHWESTERN BELL                                     (E.D. Okla.)
    TELEPHONE L.P., doing business as
    Southwestern Bell Telephone
    Company; COMMUNICATION
    WORKERS OF AMERICA;
    CYNTHIA SHERWOOD, an
    individual,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiffs Vicki L. Poole and Bert Poole appeal the district court’s order

dismissing their case because it was filed outside the applicable limitations

period. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                       Background

       Ms. Poole was employed by defendant Southwestern Bell Telephone L.P.

(Southwestern Bell) until she was discharged for cause. She was a member of

defendant union Communication Workers of America (Union). Defendant

Sherwood was her supervisor. Following her discharge, the Union filed a

grievance on her behalf, and when the grievance was denied, the      Union gave

notice of its intent to arbitrate Ms. Poole’s grievance. Later, the Union withdrew

the grievance from arbitration and Ms. Poole appealed that decision. On

October 23, 2001, the Union sent a letter to Ms. Poole to notify her that the

Union’s executive board had denied her appeal. Aplt. App. at 146. Ms. Poole

received the letter on October 31, 2001.    Id. at 147-48.

       More than eight months later, on July 18, 2002, plaintiffs filed this case in

an Oklahoma state court. Ms. Poole alleged contract and tort claims against

Southwestern Bell and Ms. Sherwood, and she contended that the Union breached

its duty of fair representation.   See id. at 149-52. Mr. Poole asserted a state-law


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claim for loss of consortium.    Id. at 152. Defendants removed the action to

federal court based on federal question jurisdiction under the Labor Management

Relations Act, 29 U.S.C. § 185 (LMRA). The federal district court applied a six-

month statute of limitations and granted defendants’ motion to dismiss because

plaintiffs’ complaint was filed eight months after the limitations period began to

run. Aplt. App. at 170.

       Plaintiffs appeal, claiming that the Union owed Ms. Poole a duty to inform

her of the deadline for filing suit and that the claims against Ms. Sherwood should

have been remanded to the state court because Sherwood’s actionable conduct

was outside the scope of her employment.

                                  Standard of Review

       We apply the same standard used by the district court in evaluating

defendants’ motions to dismiss, accepting as true all well-pleaded allegations in

the complaint and construing them in the light most favorable to the plaintiffs.

Edwards v. Int’l Union, United Plant Guard Workers      , 46 F.3d 1047, 1050 (10th

Cir. 1995). We review de novo the district court’s determination of what statute

of limitations to apply.   Id. “Where, as here, the dates on which the pertinent acts

occurred are not in dispute, the date a statute of limitations accrues is also a

question of law reviewed    de novo .” Id.




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                                        Analysis

       The district court applied a six-month limitations period to this hybrid

§ 301/unfair representation action Ms. Poole filed against her employer and her

union. See DelCostello v. Int’l Bhd. of Teamsters     , 462 U.S. 151, 154-55 & n.2

(1983) (holding six-month statute of limitations applies to suit against employer

and union). Because Ms. Poole received notice on October 31, 2001, that the

Union would take no further action on her grievance, and she did not file suit

until eight months later, her suit was time-barred. Ms. Poole does not dispute that

a six-month limitations period applied. Rather, she contends that the Union had a

duty to notify her of the deadline to file suit against it.

       In a case such as this one in which a union rejects or abandons an

employee’s claim during the grievance process, the six-month limitations period

begins to run when the employee knew or “should have known . . . through the

exercise of reasonable diligence that the Union had abandoned [her] grievance

claim.” Lucas v. Mountain States Tel. & Tel.      , 909 F.2d 419, 422 (10th Cir. 1990).

This precedent forecloses Ms. Poole’s attempt to import from employment-

discrimination case law a requirement that the Union inform her of the deadline

for suing it.

       Ms. Poole also asserts that the Union had a duty to inform her how to

appeal to the Union’s Annual Convention. We do not address whether the Union


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had such a duty because we conclude that the limitations period for Ms. Poole to

sue the Union commenced on October 31, 2001, regardless of any appeal to the

Convention. Although a claim may not accrue until the dispute resolution process

has been completely exhausted, this rule applies only when the employee

challenges the adequacy of a union’s representation and when the union

represents the employee throughout the grievance process.     Edwards , 46 F.3d at

1053-54. Here, Ms. Poole’s cause of action for the Union’s breach of fair

representation accrued when the Union informed her that it had decided not to

pursue arbitration on her behalf. Therefore, the limitations period was triggered

when Ms. Poole learned of that decision on October 31, 2001.

      We next turn to Ms. Poole’s claims against Ms. Sherwood, and deem them

abandoned in the district court. Ms. Poole did not oppose the defendants’

argument to the district court that all claims, including those against

Ms. Sherwood, were preempted by the LMRA.         See Aplt. App. at 155-60

(plaintiffs’ response to motions to dismiss). Moreover, Ms. Poole does not

challenge on appeal defendants’ assertion that these claims are waived.

Accordingly, we do not consider them on appeal.     See O’Connor v. City & County

of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990) (appellate court will not

consider claims abandoned in the district court).




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      Appellants’ motion to file an additional appendix is granted. The judgment

of the district court is AFFIRMED.



                                                  Entered for the Court



                                                  Harris L Hartz
                                                  Circuit Judge




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