15‐3047‐cv McAllister v. Teamsters Local 917

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of September, two thousand sixteen.

PRESENT: RALPH K. WINTER, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

MORRIS MCALLISTER, Plaintiff‐Appellant,

v. 15‐3047‐cv

TEAMSTERS LOCAL 917, Defendant‐Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: MORRIS MCALLISTER, pro se, New York, New York.

FOR DEFENDANT‐APPELLEE: ROBERT T. MCGOVERN, Archer, Byington, Glennon & Levine LLP, Melville, New York.

Appeal from the United States District Court for the Southern District of

New York (Ellis, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Morris McAllister, proceeding pro se, appeals from a

judgment entered September 2, 2015, in favor of defendant‐appellee International

Brotherhood of Teamsters Local Union 917 (ʺLocal 917ʺ), in his discrimination suit

under Title VII of the Civil Rights Act of 1964 (ʺTitle VIIʺ),

et seq., and

the Age Discrimination in Employment Act (ʺADEAʺ),

et seq. We

assume the partiesʹ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.1

We review de novo a district courtʹs grant of summary judgment. Garcia v.

Hartford Police Depʹt,

(2d Cir. 2013) (per curiam). Summary judgment

must be granted if ʺthere is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). When determining

whether a genuine dispute exists, we must ʺresolve all ambiguities and draw all

inferences against the moving party.ʺ Garcia,

. We have held that ʺ[e]ven

1 Pursuant to

(c), the parties consented to jurisdiction over the case by Magistrate Judge Ronald L. Ellis. 2

when a motion for summary judgment is unopposed, the district court is not relieved of

its duty to decide whether the movant is entitled to judgment as a matter of law,ʺ Vt.

Teddy Bear Co. v. 1‐800 Beargram Co.,

, 242 (2d Cir. 2004), and further stated

that, ʺ[i]f the evidence submitted in support of the summary judgment motion does not

meet the movantʹs burden of production, then ʹsummary judgment must be denied

even if no opposing evidentiary matter is presented,ʹʺ id. at 244 (emphasis omitted)

(quoting Amaker v. Foley,

(2d Cir. 2001)).

McAllister does not argue in his appellate brief that he was discriminated

against on the basis of his age and race. In fact, he states, ʺI do not believe this was an

issue of discrimination; it was an issue of losing my job.ʺ Appellantʹs Br. at 1.

Accordingly, those claims are deemed abandoned. See LoSacco v. City of Middletown,

, 92‐93 (2d Cir. 1995) (explaining that a pro se appellant abandons issues not

raised in his appellate brief). Nonetheless, even if McAllister did not abandon his

claims, and even if he had properly exhausted his administrative remedies, his claims

fail on the merits.

Although McAllister did not oppose the summary judgment motion

below, the district court conducted an independent analysis to ensure that the movant

had met its burden. We conclude that the district court properly granted summary

judgment to Local 917 and affirm for substantially the reasons stated by the district

court in its September 2, 2015 decision. To the extent that McAllister attempts to raise a

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non‐discrimination‐based claim for breach of duty of fair representation, assuming such

claim was timely, see Buttry v. Gen. Signal Corp.,

, 1492 (2d Cir. 1995) (ʺThe

six‐month limitations period begins to run when a plaintiff knows or reasonably should

know that the union has breached its duty of fair representation.ʺ (internal quotation

marks omitted)), the claim fails. McAllister has not presented sufficient evidence from

which a jury could find that Local 917ʹs conduct in failing to help him get rehired as a

porter or a parking attendant was arbitrary or in bad faith. See Flight Attendants in

Reunion v. Am. Airlines, Inc.,

(2d Cir. 2016) (ʺ[A] breach of the statutory

duty of fair representation occurs only when a unionʹs conduct toward a member of the

collective bargaining unit is arbitrary, discriminatory, or in bad faith.ʺ (quoting Vaca v.

Sipes,

(1967))). The collective bargaining agreement permitted

McAllisterʹs employer to eliminate the porter position. Moreover, Local 917 attempted

to secure a parking attendant position for McAllister, but McAllister was not qualified

as he did not have a driverʹs license. There is no evidence that Local 917 acted

arbitrarily or in bad faith.

Finally, McAllister attaches a letter submitted to the district court below,

which asserts that Local 917 ʺfailed to provide [him] with requested documents.ʺ

Appellantʹs Br. at 3. To the extent that this letter can be construed as a challenge to the

district courtʹs denial of his request for Federal Rule of Civil Procedure 56(d) discovery,

this claim fails because McAllister has failed to show any abuse of discretion by the

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district court. See Alphonse Hotel Corp. v. Tran, ‐‐‐ F.3d ‐‐‐,

(2d

Cir. July 11, 2016) (ʺWe review a district courtʹs denial of [the nonmovant]ʹs Rule 56(d)

motion for abuse of discretion.ʺ).

We have considered McAllisterʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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