15

‐ 3047

‐ cv

McAllister v. Teamsters Local 917

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 12 th day of September, two thousand sixteen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges

.

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MORRIS MCALLISTER,

Plainti ff‐ Appellant

,

v. 15

‐ 3047

‐ cv

TEAMSTERS LOCAL 917,

Defendant

‐ Appellee.

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FOR PLAINTIFF

‐ APPELLANT: MORRIS MCALLISTER, pro se

, New York,

New York.2 FOR DEFENDANT

‐ APPELLEE: ROBERT T. MCGOVERN, Archer, Byington,

Glennon & Levine LLP, Melville, New York.

Appeal from the United States District Court for the Southern District of

New York (Ellis, M.J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiff

‐ appellant Morris McAllister, proceeding pro se

, appeals from a

judgment entered September 2, 2015, in favor of defendant

‐ appellee International

Brotherhood of Teamsters Local Union 917 ( ʺ Local 917 ʺ ), in his discrimination suit

under Title VII of the Civil Rights Act of 1964 ( ʺ Title VII ʺ ), 42 U.S.C. § 2000 et seq.

, and

the Age Discrimination in Employment Act ( ʺ ADEA ʺ ), 29 U.S.C. § 621 et seq. We

assume the parties ʹ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal. 1

We review de novo a district court ʹ s grant of summary judgment. Garcia v.

Hartford Police Dep ʹ t

, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment

must be granted if ʺ there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. ʺ Fed. R. Civ. P. 56(a). When determining

whether a genuine dispute exists, we must ʺ resolve all ambiguities and draw all

inferences against the moving party. ʺ Garcia

, 706 F.3d at 127. We have held that ʺ [e]ven

1 Pursuant to 28 U.S.C. § 636(c), the parties consented to jurisdiction over the case

by Magistrate Judge Ronald L. Ellis.3 when a motion for summary judgment is unopposed, the district court is not relieved of

its duty to decide whether the movant is entitled to judgment as a matter of law, ʺ Vt.

Teddy Bear Co. v. 1

‐ 800 Beargram Co.

, 373 F.3d 241, 242 (2d Cir. 2004), and further stated

that, ʺ [i]f the evidence submitted in support of the summary judgment motion does not

meet the movant ʹ s burden of production, then ʹ summary judgment must be denied

even if no opposing evidentiary matter is presented, ʹʺ id. at 244 (emphasis omitted)

(quoting Amaker v. Foley

, 274 F.3d 677, 681 (2d Cir. 2001)).

McAllister does not argue in his appellate brief that he was discriminated

against on the basis of his age and race. In fact, he states, ʺ I do not believe this was an

issue of discrimination; it was an issue of losing my job. ʺ Appellant ʹ s Br. at 1.

Accordingly, those claims are deemed abandoned. See LoSacco v. City of Middletown

, 71

F.3d 88, 92

‐ 93 (2d Cir. 1995) (explaining that a pro se appellant abandons issues not

raised in his appellate brief). Nonetheless, even if McAllister did not abandon his

claims, and even if he had properly exhausted his administrative remedies, his claims

fail on the merits.

Although McAllister did not oppose the summary judgment motion

below, the district court conducted an independent analysis to ensure that the movant

had met its burden. We conclude that the district court properly granted summary

judgment to Local 917 and affirm for substantially the reasons stated by the district

court in its September 2, 2015 decision. To the extent that McAllister attempts to raise a4 non

‐ discrimination

‐ based claim for breach of duty of fair representation, assuming such

claim was timely, see Buttry v. Gen. Signal Corp.

, 68 F.3d 1488, 1492 (2d Cir. 1995) ( ʺ The

six

‐ month limitations period begins to run when a plaintiff knows or reasonably should

know that the union has breached its duty of fair representation. ʺ (internal quotation

marks omitted)), the claim fails. McAllister has not presented sufficient evidence from

which a jury could find that Local 917 ʹ s conduct in failing to help him get rehired as a

porter or a parking attendant was arbitrary or in bad faith. See Flight Attendants in

Reunion v. Am. Airlines, Inc.

, 813 F.3d 468, 473 (2d Cir. 2016) ( ʺ [A] breach of the statutory

duty of fair representation occurs only when a union ʹ s conduct toward a member of the

collective bargaining unit is arbitrary, discriminatory, or in bad faith. ʺ (quoting Vaca v.

Sipes

, 386 U.S. 171, 190 (1967))). The collective bargaining agreement permitted

McAllister ʹ s employer to eliminate the porter position. Moreover, Local 917 attempted

to secure a parking attendant position for McAllister, but McAllister was not qualified

as he did not have a driver ʹ s license. There is no evidence that Local 917 acted

arbitrarily or in bad faith.

Finally, McAllister attaches a letter submitted to the district court below,

which asserts that Local 917 ʺ failed to provide [him] with requested documents. ʺ

Appellant ʹ s Br. at 3. To the extent that this letter can be construed as a challenge to the

district court ʹ s denial of his request for Federal Rule of Civil Procedure 56(d) discovery,

this claim fails because McAllister has failed to show any abuse of discretion by the5 district court. See Alphonse Hotel Corp. v. Tran

, ‐‐‐ F.3d

‐‐‐ , 2016 WL 3675321, at *3 (2d

Cir. July 11, 2016) ( ʺ We review a district court ʹ s denial of [the nonmovant] ʹ s Rule 56(d)

motion for abuse of discretion. ʺ ).

We have considered McAllister ʹ s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk