Unpublished Disposition, 844 F.2d 791 (9th Cir. 1985)

MEMORANDUM^* 

Robert Barnett appeals from summary judgments entered by the district court in favor of the United States Postal Service (USPS) and the National Association of Letter Carriers, AFL-CIO (union), and from the imposition by the district court of Fed. R. Civ. P. 11 sanctions which entitle the union to their attorney's fees and costs in this case. We affirm the district court's granting of summary judgment in favor of the USPS and the union, but reverse the imposition of Rule 11 sanctions against Barnett.

Barnett's claim charging the USPS with racial and sexual discrimination under Title VII of the Civil Rights Act of 1964 was properly dismissed by the district court because Barnett failed to exhaust his administrative remedies. Although Barnett filed an informal complaint with the Equal Employment Opportunity Commission (EEOC) within the requisite time period, he did not submit a written complaint within 15 days after his final interview with an EEOC counselor as required. 29 C.F.R. Sec. 1614.214(a) (1) (ii). A declaration by Barnett dated September 23, 1985, attached to the "Grievance" that his counsel submitted to the USPS, does not constitute a written complaint because there is no indication that this declaration gave the EEOC notice that Barnett was filing a discrimination complaint. See Cooper v. Bell, 628 F.2d 1208, 1211 (9th Cir. 1980). In fact, there is nothing in the record to show that Barnett's declaration was ever presented to the EEOC. Even if we assume that Barnett was initially misled by the EEOC counselor, resulting in a waiver of his discrimination claim (Barnett signed a form withdrawing his informal EEO charge), this does not excuse his continuing failure to file an EEOC complaint. See Seigel v. Kreps, 654 F.2d 773, 777-78, n. 14 (D.C. Cir. 1981); Miller v. Smith, 584 F. Supp. 149, 153 (D.D.C. 1984). In conclusion, Barnett's argument that the actions by the EEOC somehow estop the government from claiming that Barnett did not exhaust his administrative remedies must fail. Barnett is free to make this argument to the EEOC as part of a discrimination complaint before that agency. See Cooper, 628 F.2d at 1214.

Barnett's claim against his union charging that it failed to represent him fairly in the grievance and arbitration procedure with the USPS also fails. Barnett advances three theories to establish the union's breach of its duty: (1) that the union refused to characterize the actions by De La Cruz (the individual that Barnett struck and kicked) as a homosexual assault justifying Barnett's actions; (2) that the union advised Barnett to lie about the incident; and (3) that the union refused to let independent counsel represent Barnett during the grievance-arbitration process.

A breach of a union's duty of fair representation occurs only when its conduct toward a member is "arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190 (1967). Although the union did not characterize De la Cruz's actions as a homosexual assault, it did introduce evidence setting forth Barnett's claim that he was provoked by De la Cruz's repeated physical advances.

Barnett has failed to show that the union's presentation of the facts was the result of anything but a reasonable and conscientious tactical decision as to how best to present his case. We have consistently held that "unions are not liable for good-faith, non-discriminatory errors of judgment made in the processing of grievances", and " [w]e have never held that a union acted in an arbitrary manner where the challenged conduct involved the union's judgment as to how best to handle a grievance." Peterson v. Kennedy, 771 F.2d 1244, 1254 (1985); cert. denied, 106 S. Ct. 1642 (1986). It is undisputed that the union spent many hours preparing Barnett's grievance and arbitration. The union's conduct does not constitute the "reckless disregard" for an employee's rights necessary to sustain a claim for breach of the duty of fair representation in processing the grievance-arbitration of a union member. See Castelli v. Douglass Aircraft Co., 752 F.2d 1480, 1482 (9th Cir. 1985).

Finally, Barnett did not have the right to independent counsel in the grievance-arbitration process. Id. at 1483-84. In the absence of evidence that Barnett was denied independent counsel when such representation was ordinarily allowed to others, or that Barnett was precluded from consulting with counsel outside of the grievance process itself, "the policy of exclusive representation generally requires that the union, rather than privately retained counsel, deal with employers in the settlement of employee grievances." Id. at 1484. In sum, the district court properly granted the union's motion for summary judgment.

The district court imposed Rule 11 sanctions against Barnett's counsel, entitling the union to its attorneys' fees and costs up to the time of the granting of summary judgment. We will affirm Rule 11 sanctions "if the paper filed in district court and signed by an attorney ... is frivolous, legally unreasonable, or without factual foundation." Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986). On the record before us we do not find Barnett's claim meets the standard set out in Zaldivar, and thus reverse the district court's imposition of Rule 11 sanctions.

Barnett appears to sincerely believe that he was discriminated against by the USPS and was mistreated by his union. Barnett told his attorney that he had been sexually harassed and physically molested by De la Cruz, and that he had been treated in a discriminatory manner by USPS Supervisors. Barnett also told his attorney that the union representative had suggested that he perjure himself in this matter, and that the union refused to characterize De la Cruz's action as a "homosexual assault." He further told his attorney that the union was protecting De la Cruz, and that he did not trust the union to handle his case fairly. Barnett's attorney subsequently advised the union prior to arbitration of Barnett's representations to him. There is nothing in the record to show that the union ever told the attorney that Barnett's allegations were untrue. Even if it had, the attorney might, under all the circumstances, have been entitled to rely on Barnett's statements. Based on the record before us, including the information provided counsel by Barnett, we cannot deem counsel's action in filing an action against the union frivolous. Courts are reluctant to discourage litigation by imposing punitive sanctions for its institution.¹  For the above reasons, we conclude that the imposition of sanctions was not warranted.

The summary judgments are affirmed; the imposition of Rule 11 sanctions is reversed.

AFFIRMED;

ORDER FOR SANCTIONS REVERSED.