[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-10078

Non-Argument Calendar

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DEREK LEROY MCSMITH, 

Plaintiff-Appellant,

versus

UNITE HERE LOCAL 23, 

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cv-04233-SCJ

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2 Opinion of the Court 21-10078

Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Derek McSmith appeals from the district court’s grant of 

summary judgment to Unite Here Local 23 in his case alleging that 

Unite Here Local 23 breached its duty of fair representation, in violation of § 301 of the Labor Management Relations Act of 1987, 

29 U.S.C. § 185. McSmith argues that the district court did not 

make a finding of fact regarding the settlement agreement that he 

reached with his former employer, HMSHost International, brokered by Unite Here Local 23, and that, despite reaching a settlement agreement, the agreement was not executed, nor was he provided a copy of the terms and conditions or the monetary amount 

in writing. 

We review a district court’s grant of summary judgment de 

novo, viewing all the evidence and drawing all reasonable factual 

inferences in favor of the nonmoving party. Boyle v. City of Pell 

City, 866 F.3d 1280, 1288 (11th Cir. 2017). 

Appellants are required to identify any issues specifically and 

clearly that they want us to address in their initial briefs. Access 

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). 

Any legal arguments that were not briefed before us are deemed 

abandoned and we will not consider their merits. Id.; see also 

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th 

Cir. 1989) (holding that a party waives an issue by failing to include 

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21-10078 Opinion of the Court 3

substantive argument as to an issue and only making a passing reference to the order appealed from). While pro se briefs should be 

liberally construed, issues not briefed on appeal by a pro se litigant 

are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 

(11th Cir. 2008). 

Summary judgment is appropriate if the movant demonstrates that there is no genuine issue as to any material fact and is 

entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a). 

The party moving for summary judgment has the initial burden of 

informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 

any, which it believes demonstrate the absence of a genuine issue 

of material fact. CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986). 

The motion should be granted so long as whatever is before the 

district court demonstrates that the standard for the entry of summary judgment, as outlined in Rule 56(a), is satisfied. Id. 

Once the moving party has properly supported its motion 

for summary judgment, the burden shifts to the nonmoving party

to come forward with specific facts showing that there is a genuine

issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986). Where the record taken as a whole could 

not lead a rational trier of fact to find for the nonmoving party, 

there is no genuine issue of material fact. Id. If a party fails to 

properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(a), the court 

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4 Opinion of the Court 21-10078

may consider the facts undisputed for purposes of the motion. Fed. 

R. Civ. P. 56(e)(2). Similarly, if a party fails to properly support an 

assertion of fact or fails to properly address another party’s assertion 

of fact as required by Rule 56(a), the court may grant summary judgment if the motion and supporting materials, including the undisputed facts, show that the movant is entitled to it. Fed. R. Civ. P.

56(e)(3). 

A labor union has a statutory duty of fair representation to 

serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith 

and honesty, and to avoid arbitrary conduct. Vaca v. Sipes, 386 

U.S. 171, 177 (1967). A union breaches its duty only if its actions 

toward members are arbitrary, discriminatory, or in bad faith. Id.

at 190. A union’s actions are arbitrary only if, in light of the factual 

and legal landscape at the time of the union’s actions, the union’s 

behavior is so far outside a wide range of reasonableness as to be 

irrational. Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 

(1991). A union has broad discretion in prosecuting grievance complaints, which includes not only the right to settle the dispute short 

of arbitration but also to refuse to initiate the first steps in the appeal procedure when it believes the grievance to be without merit. 

See Turner v. Air Transport Dispatchers’ Ass’n, 468 F.2d 297, 300 

(5th Cir. 1972). 

We have held that a union is allowed considerable latitude 

in its representation of employees because the grievance and arbitration process is not conducted in a judicial forum and union 

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21-10078 Opinion of the Court 5

representatives are not held to strict standards of trial advocacy. 

Harris v. Schwerman Trucking Co., 668 F.2d 1204, 1206 (11th Cir. 

1982). Neither negligence on the part of the union, nor a mistake 

in judgment, is sufficient to support a claim that the union acted in 

an arbitrary and perfunctory manner. Id. The claimant must 

demonstrate that the union acted with reckless disregard for the 

employee’s rights or was grossly deficient in its conduct to establish 

a claim for breach of the duty of fair representation. Id. at 1207. 

McSmith did not fully brief the issue of the district court’s 

grant of summary judgment to Unite Here Local 23, and thus, he 

has abandoned any challenge to summary judgment on appeal. 

Nevertheless, the district court did not err when it granted summary judgment to Unite Here Local 23 because the undisputed 

facts reflect that Unite Here Local 23 did not breach its duty of fair 

representation to McSmith. McSmith testified at his deposition 

that Local 23 did not discriminate against him, and he does not allege, nor does the record reflect, that Local 23 acted arbitrarily 

when it declined to pursue his termination grievance. 

Although McSmith alleged that Local 23 acted in bad faith, 

the record does not reflect that contention. The undisputed facts 

reflect that Local 23’s decision as to whether to pursue grievances 

to arbitration was a discretionary one, and under binding law in 

this Circuit, a union has the discretion to settle short of arbitration 

a grievance that it believes has no merit. See Turner, 468 F.2d at 

300. Given the fact that McSmith was caught sleeping while 

clocked in for work, which constituted conduct for which Local 23 

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6 Opinion of the Court 21-10078

knew HMSHost routinely terminated employees, Local 23 was not 

negligent, let alone reckless or grossly deficient, or that its behavior 

was so far outside a wide range of reasonableness that it was irrational when it determined that McSmith’s termination grievance 

lacked merit and, therefore, decided not to pursue it. See Air Line 

Pilots Ass’n, Int’l, 499 U.S. at 67; Harris, 668 F.2d at 1206-07. Moreover, the facts asserted in Local 23’s statement of undisputed material facts indicate that HMSHost did not need to provide a response after the Step 2 meeting because the grievance was considered closed. The facts also show that the back pay issue was resolved, which McSmith, notably, admitted in his complaint.

For the foregoing reasons, the decision of the district court 

is affirmed.

 AFFIRMED. 

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