The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 1 Western District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4234

___________ Bina Buford, * * Appellant, * * v. * Appeal from the United States * District Court for the Marvin T. Runyon, Jr., in his * Western District of Missouri. official capacity as Postmaster * General of the United States * Postal Services, * * Appellee. * *

___________ Submitted: September 24, 1998 Filed: November 20, 1998

___________ Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.

___________ BEAM, Circuit Judge. Bina Buford, a former postal employee, appeals the district court's adverse grant 1 of su mmary judgment in this action for breach of the collective bargaining agreementBuford's mother had passed away several months earlier. 2 -2- and for violations of t

he Second and Fourth Amendments. We affirm the judgment of the district court.

I. BACKGROUND

Buford b egan her employment with the United States Postal Service (Posta l Service) in 1986 as a letter carrier. She was a member of the National Association of Lette r Carriers (the Union) and worked for the Postal Service under a collectiv e bargaining agreement negotiated between the Union and the Postal Service.

At wor k, Buford had difficulty getting along with Alicia Johnson, anothe r carrier. The record shows a history of hostility and repeated confrontations between the two. The hostility culminated on July 11, 1995. After an earlier confrontatio n between Buford and Johnson that same day, Buford remarked to her supe rvisor, Sharon Carte r, and also to other co-workers, that if Johnson said anything about Buford' s mother , Buford would bring a gun to work and shoot Johnson. In making thes e 2 threats, Buford allegedly made references to Edmond, O klahoma, the site of a shooting incident by a postal employee.

Short ly after making these comments, Buford was sent to the United State s Postal Service Employee Assistance Program, where a licensed social worke r counseled Buford. Buford was the n placed on emergency off-duty status without pay. That same evening, Carter stopped by Buford's house to pick up Buford's gun. On July 14, Buford went to a "Fitness for Duty" examination administered by Dr. Warre n Ph illips, a psychiatrist. In a July 17, 1995, memorandum, Dr. Phillips stated tha t Buford was n ot a danger to her fellow employees and should return to work. In a n Au gust 29, 1995, memorandum, Dr. Shanahan, the United States Postal Servic e Midwest Area Senior Medical Director, concurred with Dr. Phillips's assessment ofAlthough the named defendant in Buford's complaint is Postmaster General , 3 Marvin T. Runyon, he is sued in his official capacity. It i s well settled that "an officialcapacity suit i s, in all respects other than name, to be treated as a suit against th e entity." Kentucky v. Graham , 473 U.S. 159, 166 (1985). After filing the complaint, Buford conceded t hat her First and Fifth Amendment 4 claim s were precluded by our decision in Bradley v. United States Postal Serv. , 83 2 F.2d 1061 (8th Cir. 1987). Therefore, on ly her Second and Fourth Amendment claims are before us on appeal. -3- Bufor d's ability to return to work. Nevertheless, on September 5, 1995, Buford' s employment was terminated.

Buford promptly filed grievances regarding her suspension and permanen t removal. Both grievances were appealed and ultimately denied. Thereafter, the Union requested arbitration in both ca ses. On February 28, 1996, an arbitrator ruled in favor of the Postal Service. He found that just cause existed for Buford's suspension an d subsequen t

removal. In July 1996, Buford filed this action in federal district cour t against the Po stal Service alleging breach of the collective bargaining agreement and 3 violations of her constitutional rights. She sought compensatory damages an d 4 attorne y's fees. The defendant moved to dismiss, or in the alternative, for summar y judgment.

The distri ct court granted summary judgment and held: (1) Buford could no t prevail on her claim for breach of the co llective bargaining agreement because she had not show n that the Union breached its duty of fair representation; and (2) Buford' s Bivens claim was preempted by a comprehensive remedial scheme that was in place for redressing the grievances of postal employees. Buford now appeals.-4-

II. DISCUSSION

A. Breach of the Duty of Fair Representation To prevail on her claim for breach of the collective bargaining agreemen t, Buford must s how, as a prerequisite, that the Union breached its duty of fair representation

. See Moore v. United States Postal Serv. , 992 F.2d 180, 181 (8th Cir. 1993). Buford then must show that the Postal Service breached the collective bargaining agreement. See id.

The district court concluded that Buford failed to demonstrate that the Unio n breached its duty of fair representation. We review the findings of the district court on the issue of the breach of the duty of fair representation for clear error. See Warren v. Internati onal Bhd. of Teamsters , 544 F.2d 334, 341 (8th Cir. 1976). We review th e district c ourt's grant of summary judgment de novo and affirm only if the record , vie wed in the light most favorable to Buford, shows there is no genuine issue o f material fact and that the Postal Service is en titled to judgment as a matter of law. See Smith v. United Parcel Serv., Inc. , 96 F.3d 1066, 1068 (8th Cir. 1996).

A union will be found to have breached its du ty of fair representation only when its "conduct toward a member of the collective bargaining unit is arbitrary , discriminato ry, or in bad faith." Vaca v. Sipes , 386 U.S. 171, 190 (1967); see als o Smith , 96 F.3d at 1068. Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach o f the duty of fair representation. See Smith , 96 F.3d at 1068. The Supreme Court has recognized that "[a]ny substantive examination of a union's perf

ormance . . . must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining re sponsibilities." Air Line Pilots Ass'n, Int'l v. O'Neill , 499 U.S. 65, 78 (1991).Buford also argues that the district court committed reversible error when i t 5 inaccurately recited in its opini on that she directly threatened Johnson when what she actually did was only to tell others about her threat

to harm Johnson. We fail to see the sign ificance of this argument. The district court's mischaracterization of the fact s wo uld be of consequence only if the court were reviewing the arbitration decision on the merits. -5- Bufor d argues that the district court incorrectly analyzed the duty of fai r repres entation. She claims that the district court focused exclusively on the bad faith

5 prong of the Vaca test and failed to also consider whether the Union's conduct wa s either discriminatory or arbi trary. While the language of the district court opinion may have focused too narrowly on the bad faith element of the Vaca test, we find that th e end result would be the same under the discriminatory or arbitrary prongs. According to Buford, th e court ignored the following deficiencies in the Union's rep resentation: (1) failure to cite to the John Morris case, an earlier postal disciplin e case which resulted in a favorable outc ome for the employee; (2) failure to demand Dr. Shanahan's report from the Postal Service; (3) failure to refute the claims that Bufor d had allegedly chanted "Edmond, Edmond, Edmond" during her argument with Johnson; and (4) failure to refute the contention that Buford had previously brought a gun to the workplace.

We fin d that the evidence does not support a claim of discrimination by th e Union. We reject Buford's arg ument that the dissimilar outcome between her case and another case points to discrimination because it violates the principle that "similar complaints w ill be treated consistently." Vaca , 386 U.S. at 191. Buford confuse s similar treatment with a similar result. A union is required to provide only simila r tr eatment. See, e.g., Johnson v. Air Line Pilots , 650 F.2d 133, 137 (8th Cir. 1991 ) (stating t hat in a union's representation of its members, '"[t]he complete satisfaction of all who are represented is hardly to be expected"') (quoting Ford Motor Co. v. Huffman , 345 U.S. 330, 338 (1953)). We find no inference of discrimination where the-6-

record s hows that the Union treated Buford's case in a fair manner and diligentl y pursued her complaints throughout the entire grievance procedure. See, e.g., Stevens v. Highway, City & Air Freight Drivers , 794 F.2d 376, 378 (8th Cir. 1986); Cf. Minnis
v. Int'l Union , 531 F.2d 850, 854 (8th Cir. 1975) (finding sufficient evidence to go to a jury trial when a union agreed t o represent the grievant and then made no effort to do so, dropping the grievance without notifying employee until almost six months later).

Nor do we find that the Union's actions were arbitrary. A union's conduct i s arbitrary if, considering all the circumstances at the time of the union's actions, it s behavior is "so far out side a 'wide range of reasonableness' as to be irrational." Smith , 96 F.3d a t 1068 (quoting Beavers v. United Paperworkers Int'l Union, Local 1741 , 72 F.3d 97, 100 (8th Cir. 1995)). Viewed in the light most favorable to Bufor d, the Union's actions constituted, at

most, negligence on its part and not such an egregious failure as to amount to a breach of its duty of fair representation. The Union did not cite to the John Morris case because pursuant to a settl ement agreement, it was barred from doing
so. Its failure to obtain a copy of Dr. Shanahan's report was not a critical error when that report did nothing more than concur with Dr. Phillips's report which was already before the arbitrator. See Smith , 96 F.3d a t 1069 (stating that whether a union "should have obtained more records is a matter within the wide range of reasonablen ess afforded to a union in pursuing a grievance") (citation omitted). Finally, the Union's failure t o ref ute the "Edmond" comment and the contention that Buford had once brought a gun to work, while arguably unfortunate, does not rise to the level of egregiousnes s necessary for a breach of the duty of fair repres entation. We have cautioned in the past that union representatives are not lawyers, and a case claimi ng breach of the duty of fair represen tation is not the same thing as a legal malpractice case or a post-convictio n petition claiming ineffective assistance of counsel. See Stevens , 794 F.2d at 377.
In sum, there has been no showin g that the Union's conduct in handling Buford's grievance was arbitrary, discriminatory, or in bad faith. Because there is no genuineA Bivens c laim is a cause of action brought directly under the United State s 6 Cons titution against a federal official acting in his or her individual capacity fo r viola tions of constitutionally protected rights. See Bivens v. Six Unknown Name d Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). Addit ionally, we note that Buford does not claim that Runyon actuall y 7 parti cipated in the alleged violations, but rather seeks to hold him liable for Carter' s actions under

a respondeat superior theory. As with actions under 42 U.S.C. § 1983, -7- issue of material fact as to the Union's duty of fair representation, we find that summary judgment in favor of the Postal Service was proper on Buford's claim for breach of the coll ective bargaining agreement. See Taylor v. Belger Cartage Serv., Inc. , 762 F.2 d 665, 668 (8th Cir. 1985).

B. Bivens Claim

Buf ord also asserts a Bivens claim against the Postmaster General, Marvin T

. 6 Runyon. I n this claim, Buford argues that her Second and Fourth Amendment right s were violated when her supervisor, Carter, came to her house on the evening of July 11, 1995, and took Buford's gun. We are skeptical that the record shows any violation of Buford's rights. Even assuming a consti tutional issue, however, we find no cognizable Bivens claim.

The distr ict court held that Buford's Bivens claim was preempted by th e comprehe nsive remedial scheme already in place for the grievances of posta l employees. See 39 U.S.C. §§ 1001-11, 1201-09. While this may be correct, we hold that the Bivens action is barred for a more fundamental reason. The complaint wa s bro ught against Runyon in his official capacity as Postmaster General. As we note d earlier, a suit against Runyon in his official capacity is treated as a sui t against the Postal Service. It is well settl ed that a Bivens action cannot be prosecuted against the United States and its agencies because of sovereign immunity. See Laswell v. Br own , 683 F.2d 261, 268 (8th Cir. 1982). 7there is no respondeat superior liability in Bivens actions; def endants are liable for their personal acts only. See Estate of Rosenberg v. Crandell , 56 F.3d 35, 37 (8th Cir

. 1995). -8- III. CONCLUSION

We find that no genuine issue of material fact exists as to the Union's breach of the duty of fair representation. We also find that Buford's Bivens claim fails

. Accordingly, the judgment of the dis trict court granting summary judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.