OpenJurist

82 F3d 403 Lore v. T Runyon Postmaster

82 F.3d 403

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.

No. 95-2152.

United States Court of Appeals, First Circuit.

April 19, 1996.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge ]

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.

D.Mass.

AFFIRMED.

Before TORRUELLA, Chief Judge, CYR and STAHL, Circuit Judges.

Per Curiam.

1

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.

2

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).

3

2. To the extent Lore's suit asserted that the Postal Service had breached its collective bargaining agreement by 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.

4

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).

5

Affirmed.