2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-15-2011

Barry Young v. Local 1201 Firemen & Oilers Un

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4028

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Recommended Citation

"Barry Young v. Local 1201 Firemen & Oilers Un" (2011). 2011 Decisions. Paper 1662.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4028

___________

BARRY YOUNG,

 Appellant

v.

LOCAL 1201 FIREMEN & OILERS UNION

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 07-cv-03576 )

District Judge: Honorable Louis H. Pollak

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 9, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Opinion filed: March 15, 2011)

___________

OPINION

___________

PER CURIAM

Pro se appellant, Barry Young, appeals from the order of the United States District 

Court for the Eastern District of Pennsylvania entering judgment in favor of appellee 

Local 1201, Firemen & Oilers Union (“Local 1201” or “Union”) and dismissing his 

complaint. For the reasons that follow, we will affirm the District Court’s judgment.
2

I.

Since the facts underlying the instant appeal are well-known to the parties, only a 

summary is provided here. Young, who is African American, began his employment 

with the School District of Philadelphia (“School District”) on December 9, 2002, when 

he was hired as a Building Engineer Trainee. He was subsequently promoted to a 

Building Engineer. During his employment, Young was a member of Local 1201. 

Young asserts that his problems with Local 1201 began almost immediately.

Young’s need for the assistance of Local 1201 representatives arose within the 

first month of his employment as he was accused of stealing just two weeks after being 

hired. A hearing to determine whether he should be discharged was held on January 23, 

2003. Prior to the January hearing, he provided union president Michael McGinley with 

information regarding his work history which he thought might be useful. For whatever 

reason, McGinley – who is Caucasian – failed to bring the documents to the hearing. 

McGinley had a half-hour closed-door meeting with Young’s supervisor Timothy 

McCollum and the hearing officer. Despite McCollum’s recommendation that Young be 

discharged, his employment with the School District was not terminated. According to 

Young, he was only spared termination because of a subsequent phone call from his state 

representative.

Young’s next encounter with Local 1201 occurred when he spoke to Ron Ellis, the 

Union’s substance abuse program representative. Young states that he suffers from 

depression and found himself “self-medicating” with alcohol, cocaine, and crack. At 

Ellis’ insistence, Young attended a rehabilitation program in Florida from January 10, 
3

2004, to February 13, 2004, and subsequently continued with outpatient rehabilitation in 

Pennsylvania. After reporting back to the School District, Young signed an “Employee 

Notice of Self-Referral” on March 16, 2004. Young contacted Ellis – who is African 

American – a second time on June 22, 2004, when he found himself depressed and 

drinking. According to Young, Ellis once again required him to attend the Florida 

rehabilitation center. Young stayed in the Florida facility for approximately thirty days 

beginning on June 22, 2004, and again attended outpatient rehabilitation back in 

Pennsylvania. Young did not sign a notice of self-referral for his second rehabilitation 

stay.

The School District coded the first two days of each of Young’s stays at the 

Florida rehabilitation center as unexcused absences. A hearing on the first two of these 

absences was held in April 2004. Young was represented at the hearing by Ellis and the 

vice president of Local 1201, Ernest Bennett, who is also African American. Apparently, 

the School District official indicated that the absences would be removed if Ellis 

telephoned the official the next day, but Ellis never called and the unauthorized absences 

remained on Young’s record. Young also received a disciplinary letter for the pair of 

unexcused absences from his June 2004 rehabilitation stay. According to Young, neither 

Ellis nor Bennett assisted him in dealing with the issue despite his requests for their help.

Young became eligible to return to work shortly after passing a return-to-duty 

drug test on June 9, 2005. As provided for by Section 5.6 of the Policy on Substance 

Abuse (“PSA”) contained in the Collective Bargaining Agreement which governs the 

relationship between Local 1201 and the School District, Young was subject to 
4

unannounced follow-up drug and alcohol testing. One such test was conducted on 

October 17, 2005, and Young tested positive for cocaine. Several days later, on October 

21, 2005, Young was summoned to the office of School District Official Carol Kenney, 

where he was informed of the positive test results and provided a memorandum 

explaining that a termination hearing was scheduled for October 25, 2005. Ellis appeared 

at this meeting. Shortly after his arrival, Ellis stated loudly to Young that the sample 

tested positive, that Young was high at the moment and that he would be fired. Ellis 

made this same statement in the presence of others as well. During the meeting, both 

Young and Ellis requested that Young’s “split sample” from the October 17th specimen 

be tested.

After the October 21st meeting, Young complained to McGinley about Ellis and 

requested representation by another Local 1201 representative. McGinley denied the 

request. While en route to the termination hearing on October 25, 2005, Ellis told Young 

he would be terminated if he did not resign. Ellis also informed Young that his split 

sample had tested positive for cocaine, although it was later learned during discovery that 

the School District did not test the split sample. According to Young, Ellis “coerced” 

him into signing a form resignation letter, a letter Ellis would later refuse to allow Young 

to withdraw.

Young ultimately filed a complaint on March 28, 2006, with the Pennsylvania 

Human Relations Commission (“PHRC”), alleging that Local 1201’s conduct at the time 

of his termination was discriminatory. By letter dated May 14, 2007, the PHRC notified 

Young of its inability to conclude that a violation of the Pennsylvania Human Relations 
5

Act, 43 Pa. Cons. Stat. § 951 et seq. (“PHRA”), had been established. The PHRC also 

notified Young that he had two years to file a complaint in the court of common pleas 

“based on the right to freedom from discrimination granted by the PHRA.”

II.

On August 30, 2007, Young commenced suit against Local 1201 in the United 

States District Court for the Eastern District of Pennsylvania on the basis of the actions it 

took during his term of employment with the School District. Young asserted that Local 

1201 engaged in unlawful acts of discrimination and retaliation based on race in violation 

of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and the PHRA. In 

particular, Young alleged that Local 1201 failed to represent him when he was terminated 

in October 2005, and when he requested representation in disciplinary actions for 

unauthorized absences. Young also alleged a defamation claim under Pennsylvania law 

based on statements made by Local 1201 in its statement filed with the PHRC and 

statements made by Local 1201 representative Ellis in the presence of others.

At the close of discovery, Local 1201 filed a motion for summary judgment. In a 

Memorandum Opinion and Order entered on September 30, 2009, the District Court 

granted that motion and entered judgment in favor of Local 1201. The District Court 

concluded that Young failed to establish a prima facie case of discrimination under Title 

VII insofar as he failed to establish that the actions of Local 1201 or representative Ellis 

were motivated by some discriminatory animus. While recognizing that Young’s history 

with Ellis was contentious, the District Court noted that Young himself stated that he did 

not believe Ellis sent him to the Florida rehabilitation program “because of [his] race” or 
6

“as a form of discrimination.” See Dist. Ct. Mem. Op. at 9. Young likewise could not 

say he believed that Ellis’ actions in October 2005 were racially motivated, nor could he 

point to “any one person” in Local 1201 who discriminated against him on account of his 

race. Id.

Young’s attempt to have the District Court infer discrimination when comparing 

the manner in which Local 1201 treated him to that of two white building engineers who 

failed one drug test each and were not forced to resign fared no better. The District Court 

agreed with Local 1201 that white “Employee C” is the proper comparator. Employee C 

self-referred twice, subsequently failed a drug test and then, pending a termination 

hearing, ultimately signed the same resignation letter as did Young. The District Court 

concluded that Local 1201’s treatment of both employees was consistent and 

“substantively symmetrical.” Id. at 10. Even assuming arguendo that Local 1201 failed 

to properly represent the two employees, there was no evidence presented to suggest that 

its failure to do so was racially motivated.

To the extent Young’s claim for discriminatory breach of the duty of fair 

representation was intended to extend to McGinley’s actions during the October 2003 

termination hearing, the District Court concluded that such a claim would fail insofar as 

there was no evidence presented that Local 1201 held any “subjective hostility” towards 

Young or that any such hostility “adversely affected the union’s representation.” Young 

himself stated that he was not aware, back in 2003, that McGinley was discriminating 

against him because of his race. The District Court thus concluded that Young’s 

conspiracy claim was too speculative to survive summary judgment. Id. Moreover, 
7

Young was not terminated after the 2003 hearing. Accordingly, there was no evidence 

presented to indicate that McGinley’s actions adversely affected Local 1201’s 

representation, or that McGinley’s actions were arbitrary or taken in bad faith.

The District Court disposed of Young’s claims that Ellis and Bennett failed to deal 

with his unexcused absences and that Ellis acted aggressively toward him with little 

discussion as the District Court found that there was simply no evidence presented 

regarding a discriminatory animus. Once again, Young himself stated that he was 

unaware of racial animosity on the part of either Ellis or Bennett during the relevant 

periods. A lack of evidence to support a finding of discriminatory animus likewise 

proved fatal to Young’s breach of fair representation claim with respect to Ellis’ false 

statement regarding the split sample test and his failure to ensure that the second test had 

been performed.

The District Court determined that summary judgment in favor of Local 1201 was 

also warranted on Young’s claim that the Union retaliated against him “for continuously 

demanding representation against [his] former employer.” According to the District 

Court, Young could not prevail on such a claim given his failure to engage in any activity 

protected by Title VII. While Young requested repeated representation from the Union 

with respect to his absences coded as unexcused, Young’s motivation in doing so was to 

avoid termination on the basis of too many unexcused absences – not because his race 

factored into the absences being coded as unexcused.

Young’s final claim for defamation under Pennsylvania law was disposed of by 

the District Court on statute of limitations grounds. Pennsylvania has a one year 
8

limitations period for defamation claims. See 42 Pa. Cons. Stat. § 5523. The events 

supporting Young’s claim occurred on October 21, 2005, when Ellis commented that 

Young was high, and on June 6, 2006, when Local 1201 incorrectly reported in its PHRC 

position statement that Young’s split sample tested positive for cocaine. Young’s 

complaint, however, was not filed until August 30, 2007. The District Court rejected 

Young’s contention that the limitations period was equitably tolled on account of the

information contained in the “Notice of Complainant’s Rights” he received from the 

PHRC, wherein he was advised that he had two years to file a complaint in the court of 

common pleas. The District Court rejected Young’s contention, emphasizing that the 

PHRC notice refers to a complaint “based on the right to freedom from discrimination 

granted by the Act,” not a state defamation claim. See Dist. Ct. Mem. Op. at 14-15. The 

District Court further noted that federal district courts have consistently held “that the 

pendency of a discrimination charge before the PHRC ... does not toll the statute of 

limitations for related Pennsylvania state tort claims.” Id. at 15 (citations omitted). 

Finally, the District Court found that equitable tolling does not otherwise apply insofar as 

the discovery rule was not applicable to Young’s claim and Local 1201 was not 

precluded from relying on the limitations period.

Given the foregoing analysis, the District Court concluded that summary judgment 

was warranted and entered judgment in favor of Local 1201. This timely appeal 

followed.

III.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District 
9

Court’s grant of summary judgment is plenary and we must affirm if there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of law.1 

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Where the record taken as a 

whole could not lead a rational trier of fact to find for the non-moving party, there is no 

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). A genuine issue of material fact is one that could change the outcome of the 

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

Initially, we note that Young does not raise any specific challenges in his informal 

brief other than to state that the District Court “failed to properly view facts presented by 

[him] concerning self-referrals, dates of absences and false statements submitted by 

counsel for defendant.” See Aplt’s Informal Brief at 1. Instead, Young asks this Court to 

review the facts of his two related civil actions docketed at Young v. Sch. Dist. of Phila., 

E.D. Pa. Civ. No. 06-cv-04485, and Young v. Tom Corbett, et al., E.D. Pa. Civ. No. 07-

cv-03575, in conjunction with the instant appeal and to grant him a trial because the 

District Court “should have rejected all defendants [sic] motion[s] for summary judgment 

and proceeded to trial.” See Informal Brief at 5. Other than for purposes of discovery, 

however, the underlying civil actions have not been consolidated in either the District 

Court or this Court. In fact, while Young appealed the District Court’s judgment in 

 

1

 Young filed a timely motion for reconsideration, which was denied by the District Court in a 

Memorandum Opinion and Order entered on March 16, 2010. However, Young did not file an 

amended notice of appeal, nor was his appellate brief – which is dated May 11, 2010 – filed 

within 30 days of the entry of the District Court’s March 16th order such that it can be liberally 

construed as the “functional equivalent” of an amended notice. Accordingly, the District Court’s 

decision with respect to his reconsideration motion is not within the scope of this appeal.
10

Young v. Sch. Dist. of Phila. and that appeal has been docketed at C.A. No. 10-3536, the 

District Court has yet to enter a final order in the civil action of Young v. Tom Corbett, et 

al. Our review is thus limited solely to the District Court’s decision disposing of the civil 

action underlying the instant appeal.

After a careful review of the record and the parties’ briefs on appeal, we discern 

no error in the District Court’s grant of summary judgment in favor of Local 1201. With

respect to Young’s assertions that Local 1201 and representative Ellis failed on several 

occasions to represent him or to do so adequately, in violation of Title VII and the PHRA, 

we agree with the District Court’s determination that Young failed to offer any evidence 

that the Union’s actions were motivated by discriminatory animus.2 See, e.g., York v. 

Am. Tel. & Tel. Co., 95 F.3d 948, 955-56 (10th Cir. 1996) (To establish a prima facie 

Title VII claim against a union for a breach of its duty of fair representation, a plaintiff 

must show, inter alia, that “there was some indication that the union’s actions were 

motivated by discriminatory animus.”). In fact, Young himself stated on numerous 

occasions that he either did not believe or did not know whether his race or a 

discriminatory motive was behind the actions of Ellis or any other Union representative. 

See Dist. Ct. Mem. Op. at 9 – 12, citing relevant portions of Young’s deposition 

testimony.

To the extent Young attempted to present a claim of discrimination through the 

circumstantial evidence of Local 1201’s treatment of other employees, we can find no 

 

2

 Title VII and PHRA are analyzed under an identical standard for purposes of deciding a 

summary judgment motion. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999).
11

fault with the District Court’s decision to compare Young to Employee C given the 

apparent arguable position that Young had also twice “self-referred” under the terms of 

the PSA. Moreover, as noted by the District Court, even if the Union’s representation 

was inadequate as to both Young and Employee C with respect to the self-referral and 

termination issue, there is no evidence in the record to suggest that racial animus was a 

motivating factor. Likewise, there simply was no evidence presented that the Union 

breached its duty of fair representation by acting in a manner that was arbitrary or in bad 

faith. See, e.g., Vaca v. Sipes, 386 U.S. 171, 190 (1967) (a breach occurs only when a 

union’s conduct is “arbitrary, discriminatory, or in bad faith.”). The District Court fully 

considered the evidence of record and properly concluded that there is no evidence from 

which a reasonable fact-finder could rule in Young’s favor under Title VII and the 

PHRA.

We have carefully considered Young’s remaining claim regarding retaliation. We 

find the retaliation claim unpersuasive and lacking in record support, either for the 

reasons fully explained by the District Court or for the reasons explained by appellee.

3

 

Based on the foregoing, we will affirm the District Court’s judgment.

 

3

 Even affording Young’s filings a liberal construction, we conclude that his defamation claim 

has been waived insofar as it has not been so much as mentioned in his pro se informal opening 

brief. An appellant is “required to set forth the issues raised on appeal and to present an 

argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz, 1 F.3d 176, 182 

(3d Cir. 1993); see Fed. R. App. P. 28(a)(5), (9). “It is well settled that an appellant’s failure to 

identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United 

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). The instant appeal presents no circumstances 

which counsel against application of that rule. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 

(11th Cir. 2008) (per curiam) (“While we read briefs filed by pro se litigants liberally, issues not 

briefed on appeal by a pro se litigant are deemed abandoned.” (internal citations omitted)).