* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore the appellee's motion to decide the case without oral a rgument is granted.1 We recently affirmed the district court's dismiss al 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 appe al challenging the dismissal of his claims of racial discrimination br ought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2 000e 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 terminati on 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 9 0-day time limit after receiving the EEOC's determination on his cha rge of discrimination. Other than his conclusory allegati ons, 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 fa cie 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 demonstrateda 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 Plai ntiff's grievance was actually a pretext for discrimination. Other t han bare conclusory allegations set forth in the complaint, the Plainti ff has presented no evidentiary support for his claims. The Plaintiff did not file any responses to the Defendant's motion for summary jud gment or motion for dismissal. The Plaintiff's answer to the Magis trate Judge's recommendation states merely general conclusory den ials 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 rev iewed the Defendant Summary Judgment but failed to request the Plaintiff to res ponse [sic] to Defendant Summary Judgment. Therefore the decision was preju dice." 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 a lso has not alleged that he was unable to do so or was unaware of the Union's motio n. Furthermore, Mr. Richardson did write a response to the Magistrate's recommendation to grant the Union's motion which response begins "Plaintiff wil l state the facts to support2We construe the pleadings of pro se parties liber ally. Haines v. Kerner ,

404 U.S. 519 (1972).

-4- why the Summary Judgment should not be granted." T he record reflects the district court considered his response before rulin g. The district court in no way denied Mr. Richardson a chance to respond to the Un ion's motion nor demonstrated any prejudice against him in making it s decision.

It is hard to decipher his second issue. Applying avery liberal reading to his brief, 2 he appears to contend that under Fed. R. Civ. P. 5 6 the Union did not fully meet its burden of showing there was no genui ne issue of material fact and that there was no evidence to support Mr. Richardso n's claims. For purposes of this appeal, we will assume Mr. Richardson establis hed 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 p resumption 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 reason s "must be clear and reasonably specific." Id. Once this is done, the presumption of discriminat ion "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 undis puted evidence that it represented Mr. Richardson in the matter for over ayear until finally faced with-5-

lack of cooperation from Mr. Richardson and persuas ive 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 ha d 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 n eeded some concrete information to support his claims before it could p roceed any further on his behalf. Two weeks later, after still not receiving any supporting evidence from Mr. Richardson, the Union notified him it would notproceed with his case. The Union, however, did not formally withdraw its compl aint 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. Moreove r, the Appellee would have to impeach the credibility of these co-w orkers without the Appellant himself having provided any informati on of any sort to confirm his story. Mr. Richardson does not refute the Union's contenti on that he failed to cooperate with it by providing any evidence to support his cl aims nor has he presented any evidence to show the Albertson's letter to be unrel iable. He also does not provide any evidence showing any intentional discriminationagainst 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 a nd claims the Union failed to furnish any documents showing that another member i n the same situation had been treated similarly. Mr. Richardson fails to un derstand 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 me re pretext. Carey v. United States Postal Serv. , 812 F.2d 621, 625 (10th Cir. 1987). It was Mr. R ichardson's burden to show that the Union had treated similarlysituated 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 mea ns the statements supporting the Albertson's letter were made by white co-worker s. Interestingly, he does not challenge the verity of their statements but instea d alleges the Union should have provided police reports describing the events rathe r 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 anyreasons why his co-workers might be unreliable other than the unacceptable fac t 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 andclaim the moving party should have used a different source for its support ing facts. In this case, the Union has presented the non-racially motivated reas ons 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 fr om Albertson's providing legitimate reasons for firing him supported by seve ral eyewitness statements and affidavits. The Union also produced numerous lette rs documenting its attempts to get information from Mr. Richardson about his claim s, actions it had taken against Albertson's in pursuit of this claim and ev idence of previous actions it had successfully taken on Mr. Richardson's behalf. The simple fact that the eyewitnesses supporting Albertson's letter are whit e and he is black is not enough to support a claim of racial discrimination. We fi nd no direct or indirect evidence that Mr. Richardson's race played any role in the U nion'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