                                                                   [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                           _________________            ELEVENTH CIRCUIT
                                                              09/23/99
                                                          THOMAS K. KAHN
                              No. 99-10601                     CLERK
                         Non-Argument Calendar
                           _________________
                   D.C. Docket No. 98-02951-CV-PT-NE


SHIRLEY ADAMS,

                                                     Plaintiff-Appellant,

                                  versus

UNITED PAPERWORKERS
INTERNATIONAL UNION A.F.L.- C.I.O., et al.,

                                                     Defendants-Appellees.

                          __________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                           __________________
                           (September 23, 1999)

Before BIRCH and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit
Judge.


PER CURIAM:
      This court must decide the narrow issue of whether the six month statute of

limitations for filing a hybrid § 301 complaint under a collective bargaining agreement

began running on the date the district court entered summary judgment against an

employee in an action brought against her employer or on the date that the summary

judgment was affirmed by the appellate court. We affirm the district court’s decision.

      The parties do not dispute that the six-month statute of limitations contained in

section 10(b) of the National Labor Relations Act (NLRA) governs this action

alleging that the union has undermined the grievance and arbitration process by

violating its duty to fairly represent the employee. See DelCostello v. Teamsters, 462

U.S. 151, 161-65, 103 S. Ct. 2281, 2289-91 (1983). Therefore, we must determine

when the cause of action accrued for the purposes of applying the six month statute

of limitations.

      We held in Proudfoot v. Seafarer’s International Union, 779 F.2d 1158, 1559

(11th Cir. 1986) that the timeliness of a § 301 suit is measured from the date the

plaintiff knew or should have known of the Union’s final action or the employer’s

final action, whichever is later. “By final action we mean the point at which the

grievance procedure was exhausted or otherwise broke down to the employee’s

disadvantage.” Id.; Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir. 1984)

(statute of limitations begins to run when appellant actually knew grievance had been


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denied even though written notice followed later); Samples v. Ryder Truck Lines,

Inc., 755 F.2d 881 (11th Cir. 1985) (action accrued when union ran out of time to

assert underlying claim).

      A strict rule prohibiting the tolling of the statute of limitations during the

pendency of an appeal was twice proposed and rejected by this circuit. Hester v.

International Union of Operating Engineers, 818 F.2d 1537, 1548-1556 (11th Cir.

1987) (Tjoflat, J., dissenting), vacated, 488 U.S. 1025, 109 S. Ct. 831 (1989), aff’d in

part, rev’d in part on other grounds on remand, 878 F.2d 1309 (11th Cir. 1989)

(Tjoflat, J., dissenting), enforced, 742 F. Supp. 1522 (N.D. Ala. 1990), aff’d in part,

rev’d in part on other grounds, 941 F.2d 1574 (11th Cir. 1991). In Hester we applied

the Proudfoot rationale and remanded to the district court to determine when the

employee knew or should have known of the Union’s final action. 878 F.2d 1309,

1310 (11th Cir. 1989) (noting and again rejecting the dissenting view that the statute

of limitations began to run on the date judgment was entered by the lower tribunal).

Therefore, we must examine when the statute of limitations began to run.

      In the present case the district court accepted the United States Magistrate’s

report and recommendation that the plaintiff knew or should have known that the

union had failed to properly pursue her grievance causing her to forfeit her claim

against her employer on the date that the district court dismissed the initial action. We


                                           3
find the similar facts and reasoning of the Eighth Circuit’s decision in Evans v.

Northwest Airlines, Inc., 29 F.3d 438 (8th Cir. 1994) persuasive.

      In Evans the Eighth Circuit expressly rejected the appellant’s argument that the

statute of limitations ran from a date after the plaintiff exhausted his appeal against the

company because he was or should have been aware that the union provided him with

improper assistance at the time that the employer filed a motion to dismiss. In Evans,

the employee asked his union representative how to challenge a denial of health

insurance coverage provided under a collective bargaining agreement. Id. at 440.

Relying on his union representative’s advice, Evans filed a complaint in state court

against his employer. His employer moved to dismiss the action in March of 1990 and

the state trial court granted the motion and dismissed the action motion later that same

year. All appellate courts, including the United States Supreme Court, affirmed the

ruling of the state trial court. The final appeal was denied in March 1992. In August

1992, Evans filed suit in federal district court against his Union claiming breach of the

duty of fair representation. The district court dismissed the suit after concluding that

the six month statute of limitations began running in 1990 and had expired.

      The Eighth Circuit affirmed the district court’s decision to dismiss the action

against the Union as untimely. The court agreed with the district court’s finding that

Evans' cause of action accrued in March 1990 because Evans was put on notice for the


                                            4
purposes of the six-month statute of limitations when the employer moved to dismiss

his claims for lack of subject matter jurisdiction. The court stated, “Evans should

have realized at that time, in March 1990, that the Union representative's advice was

incorrect. Nonetheless, Evans did not file his federal complaint until August 1992,

more than two years later.” Id. at 441.

       In the present case, the district court accepted the magistrate’s findings that

Adams knew or should have known that her union provided her with improper

guidance at the time summary judgment was granted. We conclude under the facts

and circumstances of this case that the district court did not err in finding that the

statute of limitations began to run on the date the district court entered summary

judgment against Adams in March of 1997. Because Adams failed to file this action

against her Union until September 2, 1998 her claim is barred by the six month statute

of limitations. AFFIRMED.




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