1The Honorable Wm. Matthew Byrne, Jr., Senior United States District Judge

for the Central District of California, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3853

___________

John M. Marthaler, *

*

Appellant, *

*

v. * Appeal from the United States District

* Court for the District of Minnesota.

Northern States Power Company, a *

Minnesota Corporation; International * [UNPUBLISHED]

Brotherhood of Electrical Workers, *

Local 160, *

*

Appellees. *

___________

Submitted: June 16, 1999

Filed: July 9, 1999

___________

Before RICHARD S. ARNOLD and ROSS, Circuit Judges, and BYRNE,1 District

Judge.

___________

PER CURIAM.
2The Honorable John R. Tunheim, United States District Judge for the District

of Minnesota.

-2-

John M. Marthaler appeals from a judgment of the district court2 granting

summary judgment in favor of his former employer, Northern States Power Company

(NSP), and his former union, International Brotherhood of Electrical Workers, Local

160, on his claims of disability discrimination and breach of the duty of fair

representation. We affirm. 

The district court doubted that Marthaler was disabled, but for the purposes of

summary judgment assumed he was. However, the court held that NSP terminated

Marthaler for a legitimate, nondiscriminatory reason and he failed to present sufficient

evidence showing the reason was a pretext for discrimination. The court did not err.

On November 10, 1995, Marthaler was placed on suspension pending an investigation

of reports that he had been seen lying down in a supervisor's truck during work hours,

had been insubordinate, and had left a threatening telephone message for a co-worker.

On November 15, 1995, Marthaler entered a mental health facility and was discharged

a month later with a diagnosis of bipolar disorder. Following an investigation which

began shortly after the suspension, on December 18, 1995, NSP terminated Marthaler

for misconduct. Contrary to Marthaler's suggestion, in the circumstances of this case,

the fact that Marthaler's "discharge was effectuated after [his] hospitalization . . . does

not preclude the grant of summary judgment." Wilking v. County of Ramsey, 153 F.3d

869, 874 (8th Cir. 1998); see also Christopher v. Adam's Mark Hotels, 137 F.3d 1069,

1073 (8th Cir.) ("[m]ere knowledge of a disability cannot be sufficient to show

pretext"), cert. denied, 119 S. Ct. 62 (1998).
-3-

In addition, the district court did not err in holding that Marthaler failed to

present sufficient evidence showing that the union breached its duty of fair

representation. After a two-day hearing, an arbitrator upheld the termination. At the

hearing, among other things, Marthaler's union-provided counsel introduced his medical

records and copies of medical treatises. Counsel also submitted a thirty-two page posthearing brief. Marthaler's assertion that counsel should have called medical witnesses

instead of relying on documentary evidence is a mere disagreement with a tactical

decision.

Finding no error of law or fact, we affirm on the basis of the district court's wellreasoned opinion. See 8th Cir. R. 47B. 

A true copy.

 Attest:

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