14-1 128 -c v

Us tad v. I nt’l B hd. of Team st er s, e t al. UNI TED STATES COURT OF A PPEAL S FOR THE SECOND CI RCUI T
SUMMAR

Y ORDER

RULING S BY SUM M ARY O RDER DO NOT HA VE PRECEDENT IAL EFFECT. CITAT ION TO A SUM M ARY O RDER FILED ON O R AFTER JA NUARY 1 , 2 00 7, IS PERM ITT ED AND IS GOVERNED BY FEDERAL RULE OF APP ELL ATE PROCEDURE 32 .1 AND THIS CO URT’S LOCAL RULE 32 .1. 1. WHEN CITING

A SUM M ARY O RDER IN A DO CUM ENT FILE D WITH THIS COUR T, A PAR TY M UST CITE EITHER THE FEDERAL APP ENDIX OR AN ELE CTRONIC DATABA SE (WITH THE NOTATION “SUM M ARY O RDER”). A P ARTY CITING A SUM M ARY O RDER M UST SERVE A CO PY OF IT ON ANY P ARTY NOT REPRESENTE D B Y COU NSEL.

At a stated Te rm of the United States Court of A ppeals for the Second Circuit, held at the Thurg ood Marsha ll United States Courthouse, 40 Foley Square, in the City

of Ne w York on the 9 day of June, two thousand fifteen. t h
Present: ROSEMARY S. P OOL ER,

ROBERT D. SACK, CHRI STOPHER F. DRONEY,

Circuit Judges

.

___________________________________________________ OLA USTAD, Plaintif f-Appellant ,

v. No. 14-1128-c v
I NTERNATI ONAL

BROTH ERHOOD OF TEAMSTERS, L OCAL747, I

NTERNATI ONAL

BROTH ERHOOD OF TEAMSTERS, Defendants-A ppellees , NORTH AMERI CAN AI RL I NES, GL OB AL AVIATI ON HOLDI

NGS, I NC., Defendants. 1

___________________________________________________ Appea ringfor Appe llant: R O B E R T L

. H E R

B S T , Her bst L aw PL L C, New Yor k, N.Y.

The Clerk of

the Court is directed to a mend the ca se ca

ption as above. 1Appea

ringfor Appe llees: E D W A R D M. G LE A S ON , J R ., L aw Of fice of Edwa

rd Glea son, PL L C (Fr anklin K. Moss, Spivak L ipton L L P, New Yor k, N.Y., on the brief

), Washington, D.C. Appea l from the United States District Court for the Easter

n District of Ne w York (B lock, J. ).
ON CONSIDERATION WHE REOF, IT IS HEREB Y ORDERED, ADJUD GED, AND DECREED that the judg ment of said District Court be a nd it hereby

is AF F IRMED

. Plaintiff-Appellant Ola

Ustad appe als from the Ma rch 31, 2014 or der of

the United States District Court for the Ea stern District of N ew Yor k (B lock, J. ) g rantingsummary judgme nt in favor of De fenda

nts-Appellee s the International Brothe rhood of Te amsters a nd the Interna

tional Br otherhood of T eamster s, L ocal 747 ( collectively , the “Union” ) on Ustad’ s duty of fa ir repr esentation claims. W e assume the parties’ familiarity with the underly

ing f acts, proc edura l history , and spec ification of issues for revie w. As an initial matter, we conclude that the pre sent appe al is taken fr om a final a ppeala ble order

. See 28 U.S.C. §1291. “To test for fina lity , revie wingcourts employ a pra ctical r ather

than a tec hnical ana ly sis.” United States ex rel. Polansky v . Pfizer, Inc. , 762 F.3d 160, 163 ( 2d Cir. 2014) (inter

nal quotation marks omitted). He re, a lthough the district c ourt’s orde r dismissing Ustad’s c omplaint only

expli citly

adjudicate d his claims ag ainst the Union and re mained silent as to his claims ag ainst Defe ndants North Amer ican Air lines and Global Aviation Holdings, Inc. (collec tively

the “Air line”), w e neve rtheless find a ppellate jurisdiction. The district c ourt’s dismiss al of Ustad’ s claims ag ainst the Union prec luded, as a matter of la

w, his claims ag ainst the Airline. See Young v. U.S. Postal Serv. , 907 F.2d 305, 307 ( 2d Cir. 1990) (noting that in a hy brid duty of fa ir repr esentation claim ag ainst an employ er, “ the [u] nion’s brea ch [of the duty of fa ir repr esentation] is a prer equisite to consideration of the merits of [a] plainti ff’ s claim ag ainst her f

ormer e mploy er f

or improper

discharg e”) . Thus, there is a “re ady , plausible explanation here f

or the district cour

t’s silence” as to the cla ims ag ainst the Airline. Polansky , 762 F.3d at 164. The district court’ s failure to expl icitly dismiss the claims ag ainst the Airline was akin to “overlook[ing] a ministerial duty ,” and suc h an omission “is not fatal to finality and conseque nt appea lability .” Id. at 163 (interna l quotation marks omitted). Turningto the merits, Ustad ar g ues on appe al that the Union bre ache d its duty of fa ir repr esentation by

(1) f ailing to a ppropriate ly

advise him in the afte rmath of the f light incident that led to his dismi ssal, and (2) providing inadequate leg al re prese ntation during the subsequent arbitration procee dings. We a ffirm the district c ourt’s grant of summar y judgme nt on both issues.
In order to show that a union has bre ache d its duty of fa ir repr esentation, a plaintiff must show: (1) c onduct by

the union toward a

member that it is “ar

bitrary , discriminatory , or in bad faith,” Marquez v . Scree n Actors Guild, Inc. , 525 U.S. 33, 44 (1998), and ( 2) a “ causa l connec tion between the union’s wrong ful conduc t and [plainti ff’ s] i njuries,” Spellacy v . Airline Pilots Ass’n-Int’l , 156 F.3d 120, 126 ( 2d Cir. 1998). “[A] uni on’s ac tions are a rbitrar y only if, in light of the fac tual and leg al landsca pe at the time of

the union’s ac tions, the union’s behavior is so far outside a ‘wide rang e of r easona bleness,’ a s to be irrational.” Air Line Pilot s Ass’n, Int’l v. O’Neill , 499 U.S. 65, 67 (1991) (inter nal citation omitted). In addition, “[a] uni on’s ac ts are

2discriminatory when substantial evide nce indicates that it eng ag ed in discrimination that was intentional, severe , and unre lated to leg itimate union objectives.” Vaughn v. Air Line Pilots Ass’n, Int’l , 604 F.3d 703, 709 ( 2d Cir. 2010) (interna l quotation marks omitted). Finally , a finding that a union ac ted in “bad f aith require s a showingof fr audulent, dec eitful, or dishonest action.” W

hite v. W hite Rose Food , 237 F.3d 174, 179 ( 2d Cir. 2001) (interna l quotation marks and alter ations omitt ed). We first rejec t Ustad’s cla im that his Union-appointed attorney , Patrick F ly nn, provided such inade quate r epre sentation duringUstad’s post-ter mination arbitration proc eeding s as to rende r his conduct a

rbitrar y , and thus a bre ach of

the duty of fa ir repr esentation. Prim arily , Ustad argues that F ly

nn failed to a dequate ly

investigate the AF I RS flight-trac king data, which Usta d contends c ould have e x onerated him of wrong doing. We disagree . The re cord r evea ls that, based on his ex amination of the c ontents of the AF I RS data, Fly nn made a

considere d, tactica l decision to attempt to ex clude the data and discr edit Ustad’s fir st office r as disoriente d during the flig ht. Whil e this treatment of

the AF I RS data may

have ultimately

been a tactica l error , or eve n neg lige nce, suc h “er

rors a re insuff icient to show a bre ach of the duty of fa ir repr esentation.” Barr v. United Parc el Serv ., Inc. , 868 F.2d 36, 43 ( 2d Cir. 1989).
Ustad’s other

criticisms of Fly

nn’s re prese ntation are simil arly insufficient to show a brea ch of the duty

of fa ir repr esentation. Ustad’s argument that Fly nn spent inadequate time and eff ort prepa ringfor the a

rbitration is belied by

his and his wife’s r epeated statements of satisfac tion with Fly

nn’s re prese ntation during and af ter the a rbitration. Moreove r, the re cord establishes that F ly

nn spoke to forme r Union President a nd Gene ral Counsel Ge ne Solow about Ustad’s c ase, r eviewe d Solow’s file from the e arlier stag es of the grieva

nce pr ocee dings, revie wed the A FI RS data, review ed an F AA re port discussing the AFI RS data, discussed the data with experienc ed pilot J ohn Her ron, re viewed T hompson’s ASAP report, spoke to Thompson, spoke to Ustad, and pr epar ed for the ar bitration hear ing w ith Ustad, Herr on, and Union repr esentative Dunca n Parsons. Simi larly

unpersua sive is Ustad’s conte ntion that Fly nn’s repr esentation was arbitra ry beca use he f ailed to make the “simple winning argument” that Thompson’s ASAP report also insulated Usta d from any company discipline. Ustad has fa iled to proff er e vidence from which a rea sonable jury

could conc lude that Fly

nn’s fa ilure to make this argument rises above neg lige nce or tactica l error

and constitutes ar

bitrary or bad f aith conduct. We also rejec t Ustad’s cla im that the Union brea ched its duty of fa ir repr esentation by failingto promptly

advise him to file an ASAP re port in the afte rmath of the f light at issue, a

nd there by potentially

ear n disciplinary

immunit y . To the extent Union officials violated Union proce dures in fa iling to advise U stad of his first offic er’ s ASAP report as we ll as his own opportunity

to file an ASAP repor

t, Ustad has provide d insufficient e vidence to show that this failure crosse s from neg lige nce to be ing “ so far outside [t he] wide rang e of r easona bleness as to be irrational.” Airline Pilots Ass ’n, Int’l , 499 U.S. at 67 (interna l quotation marks and citation omitted). Ustad has similarly provided insuffic ient evidenc e fr om which a r easona ble jury could conclude that the Union offic ials’ ac tions were disc riminatory or take n in bad fa ith.
Moreove r, Ustad’ s failure -to-advise argument also fails for lack of a “c ausal c onnection betwee n the union’s wrong ful conduc t and [Ustad’s] i njuries.” Spellacy , 156 F.3d at 126. As the district court conc luded, bec ause the arbitrator ultimately found that Ustad a cted intentionally , and ASAP repor

ting pr ovides no disciplinary immunit y

for intentional wr ong doing, a ny failure
3to advise Ustad to file a n ASAP report is irre levant. Ustad ha s failed to over come this finding of intentionality

by demonstratingthat the outcome of the ar bitration proce eding s would have be en differ ent had he been a dvised by the Union to file an A SAP report. See H ines v. Anc hor Motor Freight, Inc. , 424 U.S. 554, 567 (1976) (“ [I ]f it s eriously undermines the integrity

of the a rbitral proce ss the union’s brea ch also re moves the bar of the fina lity

provisions of the contra ct.”)

. Whil e Ustad note s that the Event ReviewCommi ttee had pr eviously acc epted e very

ASAP repor t filed under the prog ram, he provides no evide nce that these other pilots had be en ac cused of intentional wrong doing or that any such intentional conduc t was ultimately insulated from discipline. Thus, we c onclude that Usta d’s duty of fa ir repr esentation claim also fails on causation gr ounds.
We have c onsidered the rema inder of U stad’s ar g uments and find them to be without merit. Acc ording ly , the judg ment of the district cour t here by is AFF I RMED.
FOR THE COURT: Catherine O ’Ha g an Wolfe, Clerk

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