Vincent Denao v. 32 BJ SEIU ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 14-3233
VINCENT DENAO,
Appellant
v.
32 BJ SEIU; MID ATLANTIC INC.
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(No. 2-13-cv-07266)
District Judge: Honorable Ronald L. Buckwalter
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 19, 2015
Before AMBRO, FUENTES, and GREENBERG, Circuit Judges
(Filed: July 20, 2015)
OPINION
________________

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:
Vincent Denao appeals the District Court’s order dismissing his claim against his
union SEIU, under Section 301 of the Labor Management Relations Act, for breach of its
duty of fair representation.1 The District Court dismissed the claim as time-barred. Denao
argues that the Court improperly identified the date on which the statute of limitations
accrued. We will affirm.
Denao worked as a janitor for ABM Janitorial Services Mid-Atlantic, Inc. from
December 1999 until February 2013. During this time, he was a member of the SEIU
labor union, and his employment was subject to a collective bargaining agreement
between ABM and SEIU. According to the complaint, the collective bargaining
agreement stipulated that an ABM employee caught sleeping on the job would receive a
written warning and a three-day suspension for a first time offense.
On February 19, 2013, Denao’s supervisor observed Denao sleeping while he was
working at the Liberty Place Mall in Philadelphia. He alleges that this was the first time
he had violated ABM’s policy against sleeping on duty. Nevertheless, ABM terminated
him on February 26, 2013. Denao filed a grievance contending that his termination
violated the collective bargaining agreement, and a hearing was held on the grievance on
April 15, 2013. At that hearing, Denao’s SEIU representative allegedly did not advance
1
Denao also brought a claim for breach of the collective bargaining agreement against
his employer, ABM Janitorial Services. he does not appeal the District Court’s dismissal
of that claim.
2
the argument that Denao’s termination violated the collective bargaining agreement. The
grievance was not successful, and Denao’s termination became final.
Denao filed the instant suit in the Court of Common Pleas on November 13, 2013.
His complaint claimed breach of the collective bargaining agreement against ABM and
SEIU, and breach of the duty of fair representation against SEIU for failing to adequately
represent his interests during the grievance process. Such a suit is subject to Section 301
of the Labor Management Relations Act, 29 U.S.C. § 185. That provision provides that
“suits for violation of contracts between an employer and a labor organization . . . may
be brought in any district court of the United States having jurisdiction of the parties,
without respect to the amount in controversy or without regard to the citizenship of the
parties.” 29 U.S.C. § 185. “Any state law cause of action for violation of a collective
bargaining agreement is entirely preempted by Section 301.” Beidleman v. Stroh Brewery
Co., 182 F.3d 225, 232 (3d Cir. 1999).2 A Section 301 claim is subject in its entirety to a
six-month statute of limitations period. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 593
(3d Cir. 2005) (citing DelCostello, 462 U.S. at 172). The limitations period begins “when
the claimant discovers, or in the exercise of reasonable diligence should have discovered,
the acts constituting the alleged violation.” Podobnik, 409 F.3d at 593 (quoting Vadino v.
A. Valey Engineers, 903 F.2d 253, 260 (3d Cir. 1990)).
2
It is no matter that “[s]uch a suit, as a formal matter, comprises two causes of action.
The suit against the employer rests on § 301, since the employee is alleging a breach of
the collective bargaining agreement. The suit against the union is one for breach of the
union's duty of fair representation, which is implied under the scheme of the National
Labor Relations Act. Yet the two claims are inextricably interdependent.” DelCostello v.
Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
3
ABM removed the case to the Eastern District of Pennsylvania on December 12,
2013. The District Court dismissed the case as time-barred. On the District Court’s view,
Denao’s claim accrued at the time of the hearing on his grievance on April 15, 2013 and
had become untimely by the filing of his suit on November 13, 2013. He then filed this
appeal, which challenges the dismissal of his claim against SEIU only.
Denao does not dispute that his claim against SEIU is subject to a six month
limitations period. He only contends that the District Court erred in determining that his
claim accrued on the date of the hearing on his grievance. He argues that he reasonably
believed the union would continue to assist him up until the point when he filed this suit
against it. At the very least, he says, the union’s duty to represent him extended beyond
the hearing. So long as he was a dues paying member in good standing with the union,
Denao believes it was rational for him to infer that his union was properly representing
him.
Denao does not explain why the moment when his union’s duty to represent him
came to an end is relevant to a statute-of-limitations analysis. In any event, it is not the
date on which SEIU’s duty to represent him terminated that marks the accrual date of his
claim. Rather, it is “when [he] discover[ed], or in the exercise of reasonable diligence
should have discovered, the acts constituting the alleged violation.” Podobnik, 409 F.3d
at 593. That date is no later than April 15, 2013, when his union representative failed to
advance the argument that his termination was contrary to the collective bargaining
agreement. Denao did not file his complaint until more than six months later, on
November 13, 2013. Because claims of this nature are subject to a six-month limitations
4
period, see id., the District Court correctly determined that Denao’s filing is untimely.
The judgment of the District Court dismissing his claim will therefore be affirmed.
An appropriate order follows.
5