IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10918 Summary Calendar

MICHAEL FINELLI,

Plaintiff-Appellant,

versus

SOUTHWEST AIRLINES,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:02-MC-22-R -------------------- February 6, 2003

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Michael Finelli appeals from the district court’s order

granting Southwest Airlines’ motion to dismiss his petition with

prejudice for lack of subject matter jurisdiction.

Finelli argues that he had a due process right to confront

and cross-examine Ernie Santillanes, the investigator who

conducted an inquiry into whether Finelli had committed sexual

harassment, at the arbitration hearing. Santillanes had only

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-10918 -2-

indirect knowledge of the events underlying the sexual harassment

complaint, and Finelli had the opportunity to cross-examine Lois

Valenzuela and Jose Arizola, the individuals who were present

during the underlying events and accused him of inappropriate

conduct. The arbitrator did not rely on Santillanes’ findings in

reaching his decision. See S. Pac. Co. v. Wilson,

(5th Cir. 1967). Furthermore, Finelli elected to complete

the hearing without Santillanes, even though the arbitrator

offered to continue the proceeding and subpoena the investigator.

There was no due process violation.

.

Finelli also argues that the arbitrator exceeded the scope

of his authority to interpret the collective bargaining agreement

(“CBA”). Since Finelli is raising an argument in reliance on the

CBA, he has the responsibility of supplying this court with that

evidence. FED. R. APP. P. 10(b)(2). The CBA has not been

included in the record on appeal. Therefore, this court rejects

Finelli’s argument without considering its merits. See United

States v. Johnson,

, 136 n.1 (5th Cir. 1996); United

States v. Dunham Concrete Prods.,

(5th Cir.

1973).

AFFIRMED.