DocketNumber： 95-2152
Filed Date： 4/22/1996
Status： Precedential
Modified Date： 3/3/2016
April 19, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2152
ANDREW P. LORE,
Plaintiff, Appellant,
v.
MARVIN T. RUNYON, POSTMASTER GENERAL, UNITED STATES POSTAL
SERVICE AGENCY AND VINCENT SOMBROTTO, PRESIDENT NATIONAL
ASSOCIATION OF LETTER CARRIERS,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________
____________________
Andrew P. Lore on brief pro se. ______________
Donald K. Stern, United States Attorney, and George B. Henderson, _______________ ____________________
II, Assistant U.S. Attorney, on brief for Marvin T. Runyon, Postmaster __
General, appellee.
Peter D. DeChiara, Cohen, Weiss and Simon, Christopher N. Souris, _________________ _______________________ _____________________
and Feinberg, Charnas & Birmingham, P.C. on brief for Vincent R. ______________________________________
Sombrotto, appellee.
____________________
____________________
Per Curiam. Appellant Andrew Lore appeals from the __________
grant of summary judgment in favor of Marvin Runyon, Jr., the
United States Postmaster General, and Vincent Sombrotto,
President of the National Association of Letter Carriers
(NALC). We affirm for the following reasons.
1. To the extent Lore's suit was based on the claim
that the United States Postal Service failed to pay him fully
for his military leave in 1993 and that NALC refused to
arbitrate that issue, it was time-barred, as the district
court correctly explained in its order dated September 15,
1995. We note as well that Lore offered no evidence showing
that NALC's refusal to arbitrate was arbitrary,
discriminatory or undertaken in bad faith. See Miller v. ___ ______
U.S. Postal Service, 985 F.2d 9, 11 (1st Cir. 1993) (a union ___________________
breaches its duty of fair representation only if its conduct
is arbitrary, discriminatory or in bad faith) (quotation
marks and citation omitted). To the contrary, NALC submitted
evidence showing that its decision not to arbitrate was
reasonable and undertaken in good faith. Hence, Lore's
claims against appellees were meritless. See id. (a ___ ___
plaintiff's failure to establish the union's unfair
representation defeats his connected breach of contract claim
against his employer).
2. To the extent Lore's suit asserted that the Postal
Service had breached its collective bargaining agreement by
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deducting time spent on military leave from his annual leave
without his prior consent and that NALC had not vigorously
arbitrated that issue, it was dismissable for failure to
exhaust available contractual remedies. See Hayes v. New ___ _____ ___
England Millwork Distributors, Inc., 602 F.2d 15, 18 (1st _____________________________________
Cir. 1979). At the time Lore filed suit, arbitration on the
annual leave issue was pending. Lore has not described or
documented any specific action or inaction by NALC which
unreasonably delayed the arbitration and which might excuse
his obligation to exhaust his contractual remedies.
3. Lore's claim of discrimination did not assert
discrimination on the basis of a protected status, but
amounted essentially to a claim that the Postal Service had
treated him differently than it had treated another employee.
Such a claim is not actionable. See Jensen v. Frank, 912 ___ ______ _____
F.2d 517, 520-21 (1st Cir. 1990).
Affirmed. _________
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