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 c ourt’s judgment dismis sing his claims as untimely. Exercising jurisdiction un der 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te 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 This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent 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 Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 12 I. BACKGROUND Mr. Poletto was an employee of the Un ited States Postal Service (“Postal Service”) in Colorado. In June 2020, th e Postal Service notified him that it was going to terminate his empl oyment 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 consis ting of a Postal Service representative and a representative of Mr. Poletto’s union, the National Association of Letter Carriers Branch 47 (“Union”), considered th e grievance. On September 9, 2020, the Step B team agreed that the Postal Servic e had just cause to terminate Mr. Poletto’s employment. In April 2022, Mr. Poletto filed this ac tion against the Union and the Union’s Step B representative, Ant hony Battaglino. Mr. Polett o asserted three claims, alleging the Union breached its “Duty of Fair Representation,” “Duty through Arbitrary Conduct, and acti ng 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 th e operative amended comp laint asserting the same three claims a nd again referring to LMRA § 301. He also filed a civil cover Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 23 sheet again describing his ca use of action as breach of contract. He sought damages and reinstatement. Defendants filed a motion to dism iss 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 Sept ember 16, 2020. But he argued there was good cause for his 19-month dela y in filing this action, in cluding (1) his attempts to obtain counsel in late 2020; (2) his confus ion about administrativ e 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 f ile a federal lawsuit. He also mentioned his case was “in accordance wi th the statute of limitations for civil suits regarding Breach of Contract Claims for the Stat e of Colorado.” ROA, Vol. 2 at 101. A magistrate judge recommended granti ng the motion to dismiss based on the six-month statute of limita tions. 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, regardi ng defendants’ handling

1 Defendants also argued that Mr. Battagli no was immune from suit. The district court never reached this issue, and neither do we. Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 34 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 obs erved that no party had objected to the magistrate judge’s recommenda tion that the first two claims asserting a violation of the duty of fair representation should be dism issed for failure to f ile 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 cons trued Mr. Poletto’s objection and other filings as sufficiently presen ting an argument that his thir d claim should be treated as one for breach of contract and timely file d 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 c ontract involving the Postal Service. The court addressed that problem by obser ving 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 Se rvice employees relief similar to that available to employees working under coll ective bargaining agreements for private employers. ROA, Vol. 3 at 92 (quoting Nat’l Ass’n of Letter Carriers v. USPS , Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 45 590 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 ma y be maintained by individual Postal Service employees, as well as th e 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 cour t observed that because the PRA lacks an express statute of limitations, the court had to “‘borrow’ th e 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 de termined, 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 firs t explained the conceptual framework for applying the NLRA’s limitations period:

2 Section 301(a) of the LMRA provides: Suits for violation of contra cts 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 juri sdiction of the parties, without respect to the amount in controve rsy 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, wit hout 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 base d upon any unfair labor practice occurring Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 56 In DelCostello , the Supreme Court held that “hybrid” LMRA claims—wherein an employee simultaneously sues an employer for a breach of a collective bargaining ag reement and a labor union for a breach of the duty of fair representation—ar e subject to the six-month statute of limitations set out in the NLRA. Th e Supreme Court concluded that the NLRA’s statute of limitations would be more appropriate to apply to a hybrid LMRA claim than a state statut e of limitations because the NLRA’s statute of limitations was “actually designed to accommodate a balance of interests very similar to” thos e 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). Th e district court then explained why the substance of the third claim warranted appli cation 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. Neve rtheless, 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. Po letto 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 representati on. Claim Three alleges that the “Union Breached Its Duty in the handling of th e Grievance Process.” Doc. 5 at 8 (emphasis added). Clai m Three does not mention the collective bargaining agreement or allege that a ny specific provision of the contract was breached by the Union. See id. [] Nor does the Amended Complaint attach the collective bargaining agreem ent or reference a ny provision in the collective bargaining agreement allege dly creating an obligation on the part

more than six months prior to the filing of th e charge with the [NLRB] and the service of a copy thereof upon the person agai nst whom such charge is made.” Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 67 of the Union that is en forceable 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 uni on member “must be able to point to language in the collective-bargaining agreement specifically indicating an intent to create obligations enforceable agai nst 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 [co llective bargaining agreement] by breaching [its] duty of fair representation, that cl aim 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 cont ract claim asserted by an employee against the union was subject to th e NLRA’s six-month statute of limitations). “[D]uty of fair representation claims bear a ‘family resemblance’ to unfair labor practice cl aims which also allege arbitrary [or] unfair treatment, and they implicate a national interest in the collective-bargaining system because they determine a uni on’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 th e duty of fair representation but to also permit the employee a much more significant timeframe—three years, in Colorado —to bring the same clai m so long as the employee couches the claim as alleging a breach of the co llective 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 M r. Poletto attached two documents to his objections to the magistrate judge’s reco mmendation that the court presumed were collective bargaining agreemen ts between the parties. See ROA, Vol. 3 at 90. The court determined it was improper to consider thos e 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 highlight ed (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. Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 78 ROA, Vol. 3 at 93–95 (bracket s omitted except in quotes from Socha and Spencer ) (ellipsis and footnote omitted). Based on th is analysis the dist rict court concluded that claim three wa s 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 magi strate judge’s reco mmendation, granted defendants’ motion to dismiss, and di smissed the claims with prejudice.
II. STANDARD OF REVIEW We review de novo a distri ct 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 (1 0th 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 a nd relevant to the basis of the district court’s dismissal ruling: (1) defendants fail ed to file an answ er and (2) Colorado’s three-year statute of limita tions for contract actions applies to the third claim. 5

5 Among other things, Mr. Poletto argue s 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. Pole tto sought entry of default and entry of a default judgment on numerous occasions). And he contends th e court should have Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 89 As to the first argument, defendant s 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 dela ys time to file a responsive pleading until 14 days after notice that th e court has denied the motion). Regarding the second argument, we have carefully reviewed the record, the parties’ briefs, the magist rate judge’s recommendation, and the district court’s dismissal order in light of the controlli ng law. Having done so, we discern no reversible error in the distri ct court’s analysis regarding the third claim and affirm for substantially the same reasons the dist rict court stated in its thorough and well-reasoned order granting the motion to dismiss.

considered certain filings “outside the plea ding[s],” Aplt. Opening Br. at 4, all of which were filed after briefing on the mo tion to dismiss was completed. But Mr. Poletto fails to explain how the dist rict court erred in denying his motions regarding default or how cons ideration of the additional f ilings 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 presen ted in an opening brie f” or “presented only in a perfunctory manner” are “abandoned or waived” (brackets and quotations omitted)). Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 910 IV. CONCLUSION We affirm the district court’s judgmen t dismissing Mr. Poletto’s claims with prejudice.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 23-1256 Document: 010111037275 Date Filed: 04/24/2024 Page: 10