*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 7/29/96

TENTH CIRCUIT

_____________________

ROBERT RICHARDSON,

 Plaintiff-Appellant,

v.

BAKERY, CONFECTIONARY &

TOBACCO WORKERS, LOCAL NO.

26,

 Defendant-Appellee.

No. 95-1518

(D.C. No. 95-S-679)

(D. Colorado)

_____________________

ORDER AND JUDGMENT*

_____________________

Before BRORBY, EBEL and HENRY, Circuit Judges.

_____________________

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore the

appellee's motion to decide the case without oral argument is granted.
1

 We recently affirmed the district court's dismissal of Mr. Richardson's

separate lawsuit against Albertson's. Richardson v. Albertson's, Inc., No. 96-

1036, slip op. (10th Cir. July 29, 1996).

-2-

Pro se appellant Robert Richardson brings this appeal challenging the

dismissal of his claims of racial discrimination brought under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C.

§ 1981. We affirm.

Mr. Richardson is an African-American member of the Bakery,

Confectionary & Tobacco Workers, Local No. 26 (the "Union"). He claims the

Union discriminated against him on the basis of his race when it failed to

represent him in a grievance for wrongful termination against his former

employer, Albertson's, Inc.1 The district court granted the Union's motion for

summary judgment for five reasons:

First, the Plaintiff's complaint is untimely. The evidence indicates

that the Plaintiff filed his complaint beyond the 90-day time limit

after receiving the EEOC's determination on his charge of

discrimination. Other than his conclusory allegations, the Plaintiff 

has provided no evidence to the contrary.

Second, the Plaintiff has failed to prosecute this case and has 

refused to provide adequate responses to discovery requested by the 

Defendant and ordered by the court on September 28, 1995....

Third, the Plaintiff has not established a prima facie case for 

discrimination under Title VII or § 1981. There is absolutely no 
-3-

evidence that the Plaintiff was treated differently than anyone who 

was similarly situated.

Fourth, the Defendant has sufficiently demonstrated a

legitimate nondiscriminatory reason for abandoning the Plaintiff's 

grievance against Albertson's.

Fifth, the Plaintiff has not demonstrated that the Defendant's 

nondiscriminatory reason for discontinuing the Plaintiff's grievance 

was actually a pretext for discrimination. Other than bare conclusory

allegations set forth in the complaint, the Plaintiff has presented no

evidentiary support for his claims. The Plaintiff did not file any

responses to the Defendant's motion for summary judgment or motion

for dismissal. The Plaintiff's answer to the Magistrate Judge's

recommendation states merely general conclusory denials of the

Defendant's evidence.

Mr. Richardson raises two issues on appeal. First, Mr. Richardson claims

"[t]he District Court was prejudice[d] when making the decision on the Summary

Judgment. The issue is the District Court only reviewed the Defendant Summary

Judgment but failed to request the Plaintiff to response [sic] to Defendant

Summary Judgment. Therefore the decision was prejudice." This issue is without

merit. It was up to Mr. Richardson to respond to the Union's motion for summary

judgement. There is no requirement nor basis for the position that he had to wait

for the district court to order him to do so. He also has not alleged that he was

unable to do so or was unaware of the Union's motion. Furthermore, Mr.

Richardson did write a response to the Magistrate's recommendation to grant the

Union's motion which response begins "Plaintiff will state the facts to support
2

 We construe the pleadings of pro se parties liberally. Haines v. Kerner,

404 U.S. 519 (1972).

-4-

why the Summary Judgment should not be granted." The record reflects the

district court considered his response before ruling. The district court in no way

denied Mr. Richardson a chance to respond to the Union's motion nor

demonstrated any prejudice against him in making its decision.

It is hard to decipher his second issue. Applying a very liberal reading to

his brief,2 he appears to contend that under Fed. R. Civ. P. 56 the Union did not

fully meet its burden of showing there was no genuine issue of material fact and

that there was no evidence to support Mr. Richardson's claims. For purposes of

this appeal, we will assume Mr. Richardson established a prima facie case of

racial discrimination pursuant to McDonnell Douglas v. Green, 411 U.S. 792, 802

(1973). It was then up to the Union to rebut the presumption of discrimination by

showing a nondiscriminatory reason for its actions. Drake v. City of Fort Collins,

927 F.2d 1156, 1160 (10th Cir. 1991). These reasons "must be clear and

reasonably specific." Id. Once this is done, the presumption of discrimination

"simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

511 (1993). In this case the Union presented undisputed evidence that it

represented Mr. Richardson in the matter for over a year until finally faced with
-5-

lack of cooperation from Mr. Richardson and persuasive evidence from

Albertson's it decided to drop his grievance. The Union began its representation

by writing a letter to Albertson's asking why it had fired Mr. Richardson. The

Union continued to pursue action against Albertson's despite Mr. Richardson's

failure to respond to its requests for information. Eight months into the process,

the Union wrote to Mr. Richardson and told him it needed some concrete

information to support his claims before it could proceed any further on his

behalf. Two weeks later, after still not receiving any supporting evidence from

Mr. Richardson, the Union notified him it would not proceed with his case. The

Union, however, did not formally withdraw its complaint against Albertson's until

nearly five months later when it received a letter from Albertson's which

with the accompanying co-worker witness statements on record 

against the Appellant, made it clear that in order to prove the

Appellant's case, the Appellee would have to prove that four other 

members of the bargaining unit were lying. Moreover, the Appellee 

would have to impeach the credibility of these co-workers without

the Appellant himself having provided any information of any sort to

confirm his story.

Mr. Richardson does not refute the Union's contention that he failed to cooperate

with it by providing any evidence to support his claims nor has he presented any

evidence to show the Albertson's letter to be unreliable. He also does not provide

any evidence showing any intentional discrimination against him or that he was

treated differently than non-minority union members. He simply alleges that the
-6-

Union failed to represent him because he is black and claims the Union failed to

furnish any documents showing that another member in the same situation had

been treated similarly. Mr. Richardson fails to understand who bears what

burden. Once the Union put forth a legitimate non-discriminatory reason for

failing to pursue his grievance it was up to him to raise a genuine issue of fact

regarding whether the Union's given reasons were mere pretext. Carey v. United

States Postal Serv., 812 F.2d 621, 625 (10th Cir. 1987). It was Mr. Richardson's

burden to show that the Union had treated similarly situated non-minority

members differently, not the other way around. The closest we find to any

allegation of racial animus is his statement that "when [] White Co-workers make

a statement and [a] Black member los[es] his right[] to be represent[ed] by the

Appellee that is discrimination." We assume he means the statements supporting

the Albertson's letter were made by white co-workers. Interestingly, he does not

challenge the verity of their statements but instead alleges the Union should have

provided police reports describing the events rather than relying on the white coworker's statements. He also does not explain how the police reports would differ

from the testimony of his co-workers or provide any reasons why his co-workers

might be unreliable other than the unacceptable fact that they are white and he is

black.
-7-

In order to survive a motion for summary judgment the non-moving party

must do more than assert conclusory allegations and claim the moving party

should have used a different source for its supporting facts. In this case, the

Union has presented the non-racially motivated reasons that they dropped Mr.

Richardson's grievance after he failed to cooperate with them by providing any

support for his claims while faced with a letter from Albertson's providing

legitimate reasons for firing him supported by several eyewitness statements and

affidavits. The Union also produced numerous letters documenting its attempts to

get information from Mr. Richardson about his claims, actions it had taken

against Albertson's in pursuit of this claim and evidence of previous actions it had

successfully taken on Mr. Richardson's behalf. The simple fact that the

eyewitnesses supporting Albertson's letter are white and he is black is not enough

to support a claim of racial discrimination. We find no direct or indirect evidence

that Mr. Richardson's race played any role in the Union's decision to no longer

pursue his grievance.

The district court's order is AFFIRMED.

Entered for the Court:

WADE BRORBY

United States Circuit Judge