UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DOMINIC POLETTO, 

 Plaintiff - Appellant 

v. 

TONY BATTAGLINO; NATIONAL 

ASSOCIATION OF LETTER CARRIERS 

BRANCH 47, 

 Defendants - Appellees. 

No. 23-1256 

(D.C. No. 1:22-CV-00987-NYW-SKC) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, EID, and CARSON, Circuit Judges. 

_________________________________ 

Dominic Poletto appeals the district court’s judgment dismissing his claims as 

untimely. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

*

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

unanimously that oral argument would not materially assist in the determination of 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. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It may 

be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 

10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 24, 2024

Christopher M. Wolpert 

Clerk of Court

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I. BACKGROUND 

Mr. Poletto was an employee of the United States Postal Service (“Postal 

Service”) in Colorado. In June 2020, the Postal Service notified him that it was 

going to terminate his employment for unacceptable conduct. He filed a grievance 

challenging the termination. At the second step of the grievance procedure, known as 

“Step B,” a Dispute Resolution Team consisting of a Postal Service representative 

and a representative of Mr. Poletto’s union, the National Association of Letter 

Carriers Branch 47 (“Union”), considered the grievance. On September 9, 2020, the 

Step B team agreed that the Postal Service had just cause to terminate Mr. Poletto’s 

employment. 

In April 2022, Mr. Poletto filed this action against the Union and the Union’s 

Step B representative, Anthony Battaglino. Mr. Poletto asserted three claims, 

alleging the Union breached its “Duty of Fair Representation,” “Duty through 

Arbitrary Conduct, and acting in Bad Faith,” and “Duty in the handling of the 

Grievance Procedure.” ROA, Vol. 1 at 19. He listed § 301 of the Labor 

Management Relations Act (“LMRA”), 29 U.S.C. § 185, as the statute giving rise to 

federal-question jurisdiction under 28 U.S.C. § 1331. In his civil cover sheet, he 

described his cause of action as “Breach of Contract” and listed, as a related case, a 

charge he had filed with the National Labor Relations Board (“NLRB”). ROA, 

Vol. 1 at 24. In May 2022, he filed the operative amended complaint asserting the 

same three claims and again referring to LMRA § 301. He also filed a civil cover 

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sheet again describing his cause of action as breach of contract. He sought damages 

and reinstatement. 

Defendants filed a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), arguing the claims were barred by a six-month statute of 

limitations described in DelCostello v. International Brotherhood of Teamsters, 

462 U.S. 151, 154–55 (1983), and related cases.1

 In response, Mr. Poletto admitted 

he had learned about the Step B decision on September 14, 2020, and had obtained a 

copy of the written Step B decision on September 16, 2020. But he argued there was 

good cause for his 19-month delay in filing this action, including (1) his attempts to 

obtain counsel in late 2020; (2) his confusion about administrative appeals processes 

and the parties’ related obligations; (3) the charge he filed with the NLRB in 

December 2020, the denial of which he learned of in June 2021; and (4) his 

realization in February 2022 that he could file a federal lawsuit. He also mentioned 

his case was “in accordance with the statute of limitations for civil suits regarding 

Breach of Contract Claims for the State of Colorado.” ROA, Vol. 2 at 101. 

A magistrate judge recommended granting the motion to dismiss based on the 

six-month statute of limitations. Mr. Poletto filed a timely objection, acknowledging 

that a six-month limitations period applies to claims involving a breach of the duty of 

fair representation but suggesting that his third claim, regarding defendants’ handling 

1

 Defendants also argued that Mr. Battaglino was immune from suit. The district 

court never reached this issue, and neither do we. 

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of his grievance, should be construed as a claim for breach of contract. He also 

reiterated some of his tolling arguments. 

The district court concluded Mr. Poletto’s claims accrued when he filed his 

NLRB charge in December 2020. It observed that no party had objected to the 

magistrate judge’s recommendation that the first two claims asserting a violation of 

the duty of fair representation should be dismissed for failure to file them within the 

six-month limitations period. Finding no error in that portion of the 

recommendation, the court adopted it. 

Next, the district court liberally construed Mr. Poletto’s objection and other 

filings as sufficiently presenting an argument that his third claim should be treated as 

one for breach of contract and timely filed under Colorado’s three-year statute of 

limitations for contract actions, Colo. Rev. Stat. § 13-80-101(1)(a). But the court 

identified a threshold problem with such a claim—because the Postal Service is not 

an “employer” within the meaning of the LMRA, Mr. Poletto could not bring a claim 

under the LMRA asserting a violation of a contract involving the Postal Service. The 

court addressed that problem by observing that a provision of the Postal 

Reorganization Act of 1970 (“PRA”), 39 U.S.C. § 1208(b), “is the ‘analogue’ of 

§ 301 of the LMRA’” and affords Postal Service employees relief similar to that 

available to employees working under collective bargaining agreements for private 

employers. ROA, Vol. 3 at 92 (quoting Nat’l Ass’n of Letter Carriers v. USPS, 

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590 F.2d 1171, 1174 (D.C. Cir. 1978)).2

 The court explained that the PRA “‘creates 

a statutory right to sue for breach of contract that may be maintained by individual 

Postal Service employees, as well as the labor organizations representing union 

employees.’” Id. (quoting Miles v. USPS, 561 F.2d 1348, 1350 (9th Cir. 1977)). 

Having established the PRA could provide Mr. Poletto with a cause of action 

for breach of contract, the district court observed that because the PRA lacks an 

express statute of limitations, the court had to “‘borrow’ the most suitable statute or 

other rule of timeliness from some other source,” id. (quoting DelCostello, 462 U.S. 

at 158). The most suitable rule, the court determined, was not found in a state statute 

of limitations but in the National Labor Relations Act (“NLRA”), which provides a 

six-month limitations period.3

 The district court first explained the conceptual 

framework for applying the NLRA’s limitations period: 

2

 Section 301(a) of the LMRA provides: 

Suits for violation of contracts between an employer and a 

labor organization representing employees in an industry 

affecting commerce as defined in this chapter, or between any 

such labor organizations, 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(a). Similarly, the PRA states: “Suits for violation of contracts between 

the Postal Service and a labor organization representing Postal Service employees, or 

between any such labor organizations, may be brought in any district court of the United 

States having jurisdiction of the parties, without respect to the amount in controversy.” 

39 U.S.C. § 1208(b). 

3

 The NLRA limitations period is set out in 29 U.S.C. § 160(b). In relevant part, it 

provides: “[N]o complaint shall issue based upon any unfair labor practice occurring 

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In DelCostello, the Supreme Court held that “hybrid” LMRA 

claims—wherein an employee simultaneously sues an employer for a 

breach of a collective bargaining agreement and a labor union for a breach 

of the duty of fair representation—are subject to the six-month statute of 

limitations set out in the NLRA. The Supreme Court concluded that the 

NLRA’s statute of limitations would be more appropriate to apply to a 

hybrid LMRA claim than a state statute of limitations because the NLRA’s 

statute of limitations was “actually designed to accommodate a balance of 

interests very similar to” those at stake under the LMRA. DelCostello, 

462 U.S. at 169, 172. Following DelCostello, a number of courts have 

concluded that “hybrid” PRA claims are similarly subject to the NLRA’s 

six-month statute of limitations. See, e.g., Trent v. Bolger, 837 F.2d 657, 

659 (4th Cir. 1988); Holmes [v. DeJoy, No. 21 C 2504], 2021 WL 4523183, 

at *3 [(N.D. Ill. Oct. 4, 2021) (unpublished)]; Johnson v. USPS, 

No. 16-13947, 2017 WL 3977848, at *5–6 (E.D. Mich. Sept. 11, 2017) 

[(unpublished)]. 

ROA, Vol. 3 at 93 (brackets omitted). The district court then explained why the 

substance of the third claim warranted application of the NLRA’s six-month statute of 

limitations: 

Mr. Poletto’s third claim is not a clear-cut “hybrid” claim because it 

alleges a breach of the collective bargaining agreement against his union, 

rather than his former employer. Nevertheless, the Court concludes that his 

claim, to the extent it is viable, is also subject to the NLRA’s six-month 

statute of limitations. Although Mr. Poletto attempts to frame Claim Three 

as a breach of contract claim, it is, in essence, an assertion that the Union 

breached its duty of fair representation. Claim Three alleges that the 

“Union Breached Its Duty in the handling of the Grievance Process.” 

Doc. 5 at 8 (emphasis added). Claim Three does not mention the collective 

bargaining agreement or allege that any specific provision of the contract 

was breached by the Union. See id.[] Nor does the Amended Complaint 

attach the collective bargaining agreement or reference any provision in the 

collective bargaining agreement allegedly creating an obligation on the part 

more than six months prior to the filing of the charge with the [NLRB] and the service of 

a copy thereof upon the person against whom such charge is made.” 

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of the Union that is enforceable by an employee.[4] See id.; see also United 

Steelworkers of Am. v. Rawson, 495 U.S. 362, 374 (1990) (explaining that 

while a union member may sue his union for breach of a collective 

bargaining agreement, the union member “must be able to point to language 

in the collective-bargaining agreement specifically indicating an intent to 

create obligations enforceable against the union by the individual 

employees.”). 

“It is no great leap of logic to find that to the extent plaintiff asserts 

the [. . . Union] breached the [collective bargaining agreement] by 

breaching [its] duty of fair representation, that claim is analogous to the 

hybrid/fair representation claim in DelCostello and impacts the labor 

management relationship in the same manner.” Socha v. Nat’l Ass’n of 

Letter Carriers Branch No. 57 (Merged), 883 F. Supp. 790, 804 (D.R.I. 

1995) (finding that a breach of contract claim asserted by an employee 

against the union was subject to the NLRA’s six-month statute of 

limitations). “[D]uty of fair representation claims bear a ‘family 

resemblance’ to unfair labor practice claims which also allege arbitrary [or] 

unfair treatment, and they implicate a national interest in the 

collective-bargaining system because they determine a union’s obligations 

vis-à-vis its employees and the employer.” Spencer v. Loc. 26, 

941 F. Supp. 2d 193, 196 (D. Mass. 2013) (quoting George v. Loc. Union 

No. 639, Int’l Bhd. of Teamsters, 100 F.3d 1008, 1012 (D.C. Cir. 1996)). It 

would make little sense to permit an employee a six-month timeframe to 

bring a claim asserting a violation of the duty of fair representation but to 

also permit the employee a much more significant timeframe—three years, 

in Colorado —to bring the same claim so long as the employee couches the 

claim as alleging a breach of the collective bargaining agreement. The 

substance of Claim Three demonstrates that the NLRA’s six-month statute 

of limitations should apply to this claim. Witt [v. Roadway Exp.], 136 F.3d 

[1424,] 1430 [(10th Cir. 1998)]. 

4

 The district court acknowledged that Mr. Poletto attached two documents to his 

objections to the magistrate judge’s recommendation that the court presumed were 

collective bargaining agreements between the parties. See ROA, Vol. 3 at 90. The court 

determined it was improper to consider those agreements “at this late stage of the 

proceedings.” Id. at 94 n.8. Nonetheless, the district court rejected Mr. Poletto’s reliance 

on a provision he had highlighted (that the Step B team can remand a grievance to the 

Step A level for further factual development, if necessary) because a breach of that 

provision would give rise only “to a breach of the duty of fair representation,” and not “a 

breach of contract claim.” Id. 

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ROA, Vol. 3 at 93–95 (brackets omitted except in quotes from Socha and Spencer) 

(ellipsis and footnote omitted). Based on this analysis the district court concluded 

that claim three was untimely filed. 

Having determined that Mr. Poletto filed all three of his claims more than six 

months after his December 2020 NLRB charge, the district court overruled 

Mr. Poletto’s objections, adopted the magistrate judge’s recommendation, granted 

defendants’ motion to dismiss, and dismissed the claims with prejudice. 

II. STANDARD OF REVIEW 

We review de novo a district court’s order granting a Rule 12(b)(6) motion to 

dismiss for failure to meet a statute of limitations. Herrera v. City of Espanola, 

32 F.4th 980, 991 (10th Cir. 2022). We construe Mr. Poletto’s pro se filings 

liberally, but we may not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 

927 n.1 (10th Cir. 2008). 

III. DISCUSSION

 Even liberally construing Mr. Poletto’s opening brief, we find only two 

arguments that are both adequately briefed and relevant to the basis of the district 

court’s dismissal ruling: (1) defendants failed to file an answer and (2) Colorado’s 

three-year statute of limitations for contract actions applies to the third claim.5

5

 Among other things, Mr. Poletto argues in his opening brief that a former 

member of a labor union can bring a civil action against the union, but that issue is 

not germane to this appeal. He also argues the district court should have entered 

default judgment against defendants (Mr. Poletto sought entry of default and entry of 

a default judgment on numerous occasions). And he contends the court should have 

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 As to the first argument, defendants may file a motion to dismiss under 

Rule 12(b) in lieu of an answer. See Fed. R. Civ. P. 12(b) (Rule 12(b) motions “must 

be made before pleading if a responsive pleading is allowed.”); Fed. R. Civ. 

P. 12(a)(4)(A) (serving a Rule 12 motion delays time to file a responsive pleading 

until 14 days after notice that the court has denied the motion). 

Regarding the second argument, we have carefully reviewed the record, the 

parties’ briefs, the magistrate judge’s recommendation, and the district court’s 

dismissal order in light of the controlling law. Having done so, we discern no 

reversible error in the district court’s analysis regarding the third claim and affirm for 

substantially the same reasons the district court stated in its thorough and 

well-reasoned order granting the motion to dismiss. 

considered certain filings “outside the pleading[s],” Aplt. Opening Br. at 4, all of 

which were filed after briefing on the motion to dismiss was completed. But 

Mr. Poletto fails to explain how the district court erred in denying his motions 

regarding default or how consideration of the additional filings he cites would have 

affected the outcome. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 

(10th Cir. 2015) (“The first task of an appellant is to explain to us why the district 

court’s decision was wrong.”). He has therefore waived appellate review of these 

arguments. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) 

(“[A]rguments that are inadequately presented in an opening brief” or “presented 

only in a perfunctory manner” are “abandoned or waived” (brackets and quotations 

omitted)). 

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IV. CONCLUSION 

 We affirm the district court’s judgment dismissing Mr. Poletto’s claims with 

prejudice. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

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