     Case: 14-51110      Document: 00513133421         Page: 1    Date Filed: 07/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-51110                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 29, 2015
                                                                           Lyle W. Cayce
TAMARA L. YOUNG,                                                                Clerk
                                                 Plaintiff–Appellant,
versus
UNITED STATES POSTAL SERVICE,
 Through Patrick R. Donahoe, Post Master General;
AMERICAN POSTAL WORKERS UNION, AFL-CIO;
AMERICAN POSTAL WORKERS UNION AFL-CIO,
 SAN ANTONIO ALAMO AREA LOCAL,
                                                 Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-113




Before JONES, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*

       After being terminated from her position as a mail-processing clerk,



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 14-51110
Tamara Young sued the United States Postal Service (“the Postal Service”),
alleging a breach of the Collective Bargaining Agreement (“CBA”), and her
union, 1 alleging a breach of the Duty of Fair Representation. The district court
dismissed her first amended complaint for failure to state a claim and denied
further leave to amend. We affirm.

                                               I.
                                               A.
      Young made the following allegations in her first amended complaint: 2

      She was hired by the Postal Service and joined the union in 1986. She
had a work-related disability that occasionally required her to take time off,
but the “Postal Service was reluctant and hesitant to grant such leave.”

      In 2012, Young had a predisciplinary meeting with her manager and her
union steward, Robert Garcia, regarding her absenteeism. She had the right
to ask questions during the meeting and to write a statement with her steward
after it. 3 Nevertheless, the manager did not allow her to ask questions, and
Garcia did not interject, take notes, or meet with her afterward. The manager
was also Garcia’s supervisor, and Garcia was “given preferential treatment for
such things as overtime and job preference by this same supervisor.” Young
asked the union to grieve the denial of her rights during the meeting.

      A week later, Young received a notice of removal citing her poor atten-
dance and absence without leave. She again asked the union to grieve both
the denial of her rights during the meeting and her dismissal.



      1   We refer to the national and local unions jointly as “the union.”
      2  We include only those allegations necessary to resolve this appeal. Young made
several other allegations against the union.
      3   The complaint does not specify the source of those rights.
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       Young did not “substantially” hear from the union about those issues
until 2013. She learned that the union had filed a single grievance about both
the meeting and her termination but that the appeal to arbitration, the last
stage in the process, was late because Garcia had initially mailed it to the
wrong address. Around that time, a union representative told her, “I don’t
understand how this got as far as it did . . . if a separate grievance had been
filed it would not have gotten to this point because it should have been thrown
out . . . this should not have happened.”

       The arbitrator denied the appeal as untimely. 4 He explained that the
Postal Service had denied Young’s Step 1 grievance and Step 2 appeal, internal
Postal Service proceedings that occur before arbitration, and that the Postal
Service did not receive the appeal to arbitration until after the deadline.

       Young’s removal became final following that decision. She contends that
the Postal Service lacked cause to fire her. Specifically, she “denies that she
had unaccepted attendance and was AWOL.” She maintains that she “called
in as required, and the Postal Service was on notice that she’d just returned
from five months leave due to surgery, and that she was being worked outside
of her restrictions causing her to need to take this leave.”

                                             B.
       Young sued the Postal Service and the union following the arbitrator’s
ruling. She amended her complaint after the union filed a Rule 12(b)(6) motion
to dismiss. Both defendants moved to dismiss her first amended complaint,
and in her response, Young requested further leave to amend. The magistrate


       4 This paragraph is drawn from the arbitrator’s award rather than the complaint. The
award is considered part of the pleadings at the Rule 12(b)(6) stage because Young referred
to it in her complaint, it is central to her claim, and the union attached it to its motion to
dismiss. See, e.g., Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635
& n.10 (5th Cir. 2014).
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                                      No. 14-51110
judge denied leave to amend and recommended granting the motions to dis-
miss. The district court affirmed the denial of leave to amend and accepted the
dismissal recommendation.

                                            II.
                                            A.
       Section 2 of the Postal Reorganization Act authorizes suits alleging that
the Postal Service has violated a CBA. 39 U.S.C. § 1208(b). That provision is
analogous to section 301 of the Labor Management Relations Act, and the case-
law interpreting section 301 is “fully applicable” to section 2 cases. McNair v.
USPS, 768 F.2d 730, 735 (5th Cir. 1985) (per curiam).

       Before suing his employer for a breach of a CBA, “an employee is
required to attempt to exhaust any grievance or arbitration remedies provided
in the [CBA].” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163 (1983).
“Subject to very limited judicial review, he will be bound by the result according
to the finality provisions of the agreement.” Id. at 164. There is an exception
where “the union representing the employee in the grievance/arbitration proce-
dure . . . breach[es] its duty of fair representation. In such an instance, an
employee may bring suit against both the employer and the union, notwith-
standing the outcome or finality of the grievance or arbitration proceeding.”
Id. “To prevail against either the [employer] or the Union, . . . [employee-
plaintiffs] must not only show that their discharge was contrary to the contract
but must also carry the burden of demonstrating a breach of duty by the
Union.” 5




       5DelCostello, 462 U.S. at 165 (omission and second alteration in original) (quoting
UPS, Inc. v. Mitchell, 451 U.S. 56, 66–67 (1981) (Stewart, J., concurring in the judgment)).
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                                        B.
      Young has not stated a claim against the Postal Service, so we need not
reach her allegations against the union. She urges that the Postal Service vio-
lated her rights (1) to ask questions at the predisciplinary meeting, (2) to write
a statement after the meeting, and (3) “to grieve and dispute the facts and the
reason she was terminated.”

      Young’s allegation about the right to ask questions—to the extent that
she even had such a right at that preliminary stage in the discipline process—
is inadequate because her complaint does not indicate that the denial of that
right voids her dismissal. The court draws “reasonable inference[s]” in favor
of the plaintiff, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), “a context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense,” id. at 679. There is no reason to expect that the denial of that
right—as distinguished from, for example, a right to present evidence—would
void Young’s termination. The allegation that a union representative said her
appeal would not have reached the arbitration stage, had separate grievances
been filed about the meeting and her termination, is of limited relevance
because that statement does not specify why separate grievances would have
been more effective. Without more, we cannot infer that Young’s removal is
invalid even if the Postal Service prevented her from asking questions.

      Young did not allege that the Postal Service prohibited her from writing
a statement. The relevant portion of her complaint states that “Plaintiff is
entitled to not only be able to ask questions, but to be able to write a statement
with her Steward after such pre-disciplinary meetings. However, Steward
Garcia refused to meet with Plaintiff to write this statement.” That allegation
concerns only Garcia; there is no suggestion that Young’s manager or any other
Postal Service official was involved.

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       Nor did Young allege that the Postal Service, as distinguished from the
union, denied her the right “to grieve and dispute the facts and the reason she
was terminated.” She has not identified any problems with the Step 1 or Step 2
proceedings. She alleged that the appeal to arbitration was late, but her com-
plaint and the arbitrator’s award make clear that the untimeliness was
because Garcia initially mailed the appeal to the wrong address. Accordingly,
Young has not shown that any denial of her grievance rights was the fault of
the Postal Service.

       Young submits that she should be allowed discovery to determine which
rights were violated and that she is not required to “identify the CBA rights by
number or paragraph.” But the problem is not that she failed to list specific
provisions of the CBA; instead, it is that she did not allege a breach of the CBA
at all, even in general terms. Moreover, the specific provisions of the CBA are
relevant only to the right to ask questions. Young’s allegations about the state-
ment and her grievance rights are inadequate because she provided insuffi-
cient information about the Postal Service’s conduct. Therefore, she has not
stated a claim against the Postal Service, so the court properly dismissed her
complaint.

                                             III.
                                              A.
       “Whether leave to amend should be granted is entrusted to the sound
discretion of the district court, and that court’s ruling is reversible only for an
abuse of discretion.” 6 “The court should freely give leave when justice so


       6 Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993). Young contends that
review is de novo. That standard applies where “the district court’s denial of leave to amend
was based solely on futility.” City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th
Cir. 2010). Here, the denial was based on both futility and failure to comply with the local
rules.
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requires.” FED. R. CIV. P. 15(a)(2). The relevant considerations are “1) undue
delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by
previous amendments, 4) undue prejudice to the opposing party, and 5) futility
of the amendment.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004).
The district court’s local rules provide that “[w]hen a motion for leave to file a
pleading, motion, or other submission is required, an executed copy of the pro-
posed pleading, motion or other submission shall be filed as an exhibit to the
motion for leave.”

                                             B.
       The court properly denied leave to amend for at least two reasons. First,
Young did not explain how amendment would improve her complaint. Nor did
she describe her proposed amended complaint to the district court, and even
on appeal she has not specified how she would change her complaint. Denial
of leave to amend is appropriate where there is no indication that amendment
would cure the defects in a complaint. 7

       Second, Young did not comply with the local rules.                  She incorrectly
requested leave to amend in her response to the motions to dismiss rather than
in a separate motion. And she did not attach her proposed second amended
complaint, as required by the rules. Denial of leave to amend is reasonable
where the plaintiff fails to comply with the local rules. 8

       The cases Young cites do not alter that conclusion. In the first, we com-
mented that, “[a]lthough a court may dismiss the claim, it should not do so



       7See, e.g., Duzich v. Advantage Fin. Corp., 395 F.3d 527, 531 (5th Cir. 2004) (per cur-
iam); Garrett v. Celanese Corp., 102 F. App’x 387, 388 (5th Cir. 2004) (per curiam).
       8 See, e.g., Daniels v. United States, 45 F. App’x 318 (table), 2002 WL 1860334, at *1
(5th Cir. June 18, 2002) (per curiam); Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097,
1099 (5th Cir. 1979) (per curiam).
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                                       No. 14-51110
without granting leave to amend, unless the defect is simply incurable or the
plaintiff has failed to plead with particularity after being afforded repeated
opportunities to do so.” Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir.
2000). That does not show that Young should have been allowed further
amendment, because her continued inability to articulate how amendment
would be helpful suggests the defects are incurable. In the second, we noted
that “a court ordinarily should not dismiss the complaint except after affording
every opportunity (for) the plaintiff to state a claim upon which relief (can) be
granted.” 9 Even under that approach, Young’s failure to specify what her
amended complaint would say and noncompliance with the local rules demon-
strate that it was proper to deny further leave to amend. There was no abuse
of discretion.

       AFFIRMED.




       9 Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam) (alterations
in original) (quoting Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955) (per curiam)).
                                              8
