                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 July 7, 2010
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court



    DAVID MENGES,

                Plaintiff-Appellant,

    v.                                                No. 09-1384
                                         (D.C. No. 1:08-CV-00305-CMA-MEH)
    ABF FREIGHT SYSTEM, INC.,                           (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.



         Plaintiff David Menges sued his former employer, ABF Freight System,

Inc. (ABF), under section 301 of the Labor Management Relations Act (LMRA),

claiming he was terminated in violation of the collective bargaining agreement

(CBA) between ABF and his union, and that the union then breached its duty of

fair representation in handling his grievance. The district court awarded summary


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
judgment to ABF, concluding the union’s handling of the grievance was sufficient

as a matter of law. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I. Background

      Menges worked for ABF as a truck driver in its Denver, Colorado terminal.

As a member of the Local Union 17 International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America (hereinafter “union”), the

terms of his employment were governed by the CBA between the union and ABF.

Article 46 of the CBA allowed ABF to discharge a union member without

warning for “[r]ecklessness resulting in a serious accident while on duty.” App.

at 149. In August 2007, ABF discharged Menges under Article 46 based on an

accident that he was involved in on July 31. ABF’s stated reason for firing him

was because he “attempted to make a right hand turn at a red light and struck a

vehicle that had the right of way,” and that “as a result of [his] negligence [he]

[was] cited for Failure to Yield.” Id. at 168. The union, through its business

agent Michael Ramos, filed a grievance challenging the discharge and represented

Menges at a hearing before a grievance committee equally comprised of union

and employer members. The committee voted to uphold the discharge.

      Menges then filed this action against ABF under the LMRA asserting a

hybrid § 301/duty of fair representation claim. 1 To prevail on such a claim, the

1
      “The plaintiff in a hybrid § 301/ [duty of fair representation] action need
not sue both his union and former employer in the same case, and he may choose
                                                                       (continued...)

                                         -2-
discharged worker must prove the following three elements: “(1) Some conduct

by the worker’s union that breached the duty of fair representation; (2) A causal

connection showing that the union’s breach affected the integrity of the

arbitration process, and; (3) A violation of the collective bargaining agreement by

the company.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1239 (10th Cir.

1998). At summary judgment, the district court found Menges had raised a

material fact issue as to the third element, that is, whether ABF terminated him in

violation of Article 46. But it nonetheless granted summary judgment to ABF,

concluding Menges could not satisfy the first two elements of his claim. The

court found that even accepting Menges’s version of the facts, the union’s

handling of his grievance was, at worst, negligent. And it explained that

negligence as a matter of law does not constitute a breach of the duty of fair

representation. Menges challenges this ruling on appeal, arguing he offered

overwhelming evidence that Ramos’s handling of the grievance was legally

insufficient and was responsible for the committee’s unfavorable decision.




1
 (...continued)
to seek damages against only one of the potential defendants.” Webb v. ABF
Freight System, Inc., 155 F.3d 1230, 1239 (10th Cir. 1998). Menges apparently
elected to sue only his former employer.

                                         -3-
                                  II. Discussion

             Legal Framework

      We review a district court’s summary-judgment rulings de novo,

“examin[ing] the record and all reasonable inferences that might be drawn from it

in the light most favorable to the non-moving party.” Pinkerton v. Colorado

Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009) (internal quotation marks

omitted). Applying the same legal standard as the district court, we will affirm

“if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “There

is no genuine issue of material fact unless the evidence, construed in the light

most favorable to the non-moving party, is such that a reasonable jury could

return a verdict for the non-moving party.” Bones v. Honeywell Int’l, Inc.,

366 F.3d 869, 875 (10th Cir. 2004). The burden to show that no genuine issue of

material fact exists is borne by the moving party. See Adamson v. Multi Cmty.

Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). In this case, ABF

can satisfy that burden “by identifying a lack of evidence for [Menges] on an

essential element of [his] claim.” Id. (internal quotation marks omitted).

      In deciding whether ABF was entitled to summary judgment, we look to

whether Menges proffered sufficient evidence to permit a reasonable jury to

conclude that the union breached its duty of fair representation, and if so, whether

                                         -4-
the jury could also conclude that the breach contributed to an erroneous decision

by the grievance committee. See Webb, 155 F.3d at 1239 (explaining the “causal

connection” element). In this case, we agree with the district court that the

evidence, viewed in Menges’s favor, fails to establish a breach of the duty of fair

representation as required to prevail on his hybrid claim. We therefore need not

address the causation element. 2

             The Duty of Fair Representation

      “In light of a union’s position as the sole and exclusive bargaining

representative of an employee with his employer, every collective bargaining

union has a duty to represent its members fairly in its dealings with management.”

Id. at 1239. As we explained in Webb, this duty prohibits a union from arbitrarily

ignoring a meritorious grievance or processing it in a perfunctory fashion. Of

course, a union also breaches its duty when it engages in discriminatory or

bad-faith conduct in the course of handling a member’s grievance. See id.




2
       We note that the requisite causal connection is between the union’s breach
of the duty of fair representation and an “erroneous outcome” to the grievance
process. Webb, 155 F.3d at 1239. The district court therefore erred in requiring
Menges to show a “causal connection between the union’s alleged breach of the
DFR and the employer’s alleged breach of the CBA.” App. at 344. That error
was harmless, however, in light of the district court’s determination that the duty
of fair representation was not breached, a holding we affirm. We also note that
“this court may affirm a grant of summary judgment on grounds other than those
relied on by the district court when the record contains an adequate and
independent basis for that result.” Bones, 366 F.3d at 875.

                                         -5-
      Although Menges accuses his union representative Michael Ramos of

engaging in much of this prohibited behavior, his evidence of bad faith hardly

merits discussion. 3 Accordingly, we focus only on the issue of Ramos’s alleged

perfunctory performance in handling Menges’s grievance. We made clear in

Webb that perfunctory performance violates the duty of fair representation. Id,

155 F.3d at 1239-40; see also Schwartz v. Bhd. of Maint. of Way Employes,

264 F.3d 1181, 1185 (10th Cir. 2001) (holding that perfunctory union conduct

may be actionable under Webb “in certain contexts or as a specific type of

arbitrary conduct”). But we have also cautioned that “[t]he grievance process

cannot be expected to be error-free.” Young v. UAW-LETC, 95 F.3d 992, 997

(10th Cir. 1996) (internal quotation marks omitted). Accordingly, a member’s

mere dissatisfaction with a union representative’s sub-par performance is not


3
       Menges accuses Ramos of conspiring with members of the committee to
tank his grievance because of a long-standing feud between them. Menges
testified that he complained to Ramos’s boss about him in 2005 because Ramos
failed to discipline an employee who had disparaged Menges in front of his co-
workers. Ramos recalled the incident vaguely during his deposition, and both
men testified that nothing ever came of Menges’s complaints. Without more, this
evidence does not raise an inference that Ramos prosecuted Menges’s grievance
in bad faith, which “requires a showing of fraud or deceitful or dishonest action.”
Young v. UAW-LETC, 95 F.3d 992, 996-97 n.1 (10th Cir. 1996). “To defeat a
motion for summary judgment, evidence, including testimony, must be based on
more than mere speculation, conjecture, or surmise.” Bones, 366 F.3d at 875.
Menges plainly believes that Ramos carried a grudge against him, but his
speculation that this grudge resulted in a conspiracy to undermine his grievance is
not sufficient to overcome summary judgment. We have reviewed the record in
light of Menges’s arguments and have found no evidence of fraudulent, deceitful,
or dishonest conduct on the part of Ramos or any other union representative.

                                        -6-
enough to establish a duty of fair representation claim. “Mere negligence, poor

judgment, or ineptitude in grievance handling are insufficient to establish a

breach of the duty of fair representation.” Id. (internal quotation marks omitted).

      The duty of fair representation is breached when the union’s handling of a

grievance falls “so far outside a wide range of reasonableness as to be irrational.”

Schwartz, 264 F.3d at 1185 (internal quotation marks omitted). Thus, in Schwartz

we reversed an award of summary judgment in favor of the union where its bad

advice had caused the plaintiffs to lose their jobs. We concluded the advice (that

plaintiffs need not maintain leaves-of-absence while training for another position)

was so unreasonable as to be irrational. See id. at 1184-87. Similarly, in Webb

we deemed the union’s representation of the discharged worker plaintiff to be so

“perfunctory, apathetic, indifferent, and cursory” as to constitute a breach of the

duty of fair representation. 155 F.3d at 1240. 4

      Menges fails to meet this standard despite the host of examples he cites as

evidence of Ramos’s deficient performance. Specifically, he cites twelve facts to

“prove[] that the union was trying to sabotage his case.” Aplt. Op. Br. at 29. For

ease of discussion, we categorize his complaints as follows: (1) Ramos failed to

emphasize helpful evidence at the grievance committee hearing; (2) Ramos

4
       The evidence in Webb suggested that the union affirmatively hurt the
plaintiff’s reinstatement chances by, inter alia, failing to file the appropriate
grievance; failing to follow its established grievance procedure; wrongly telling
the plaintiff his presence at the hearing was unnecessary; and disparaging the
plaintiff in front of the grievance committee. 155 F.3d at 1240-41 n.14.

                                          -7-
allowed the committee to hear damaging evidence irrelevant to Menges’s

discharge; (3) Ramos spent insufficient time preparing for the hearing; and

(4) Ramos failed to coach Menges during his own statement.

             Ramos’s Alleged Failure to Present Certain Evidence

      Citing his own affidavit, Menges claims that Ramos failed to tell the

grievance committee that, contrary to the recklessness requirement for an Article

46 discharge, ABF’s discharge letter characterized his driving as merely

negligent. He also claims Ramos neglected to mention that according to the

police report, both vehicles in the accident sustained only slight damage, which

would appear to undermine the company’s labeling of the accident as serious.

Ramos testified that his strategy at the hearing depended on convincing the

committee that Menges’s accident was neither reckless nor serious. See App. at

160. Thus, if, as Menges argues, Ramos wholly neglected to make these points, a

jury might reasonably conclude that such an omission was outside the range of

reasonableness.

      Menges admitted at his deposition, however, that Ramos made these very

arguments to the grievance committee, testifying specifically that Ramos argued

he had “not [been] found reckless, . . . as charged by the company.” Id. at 264. It

is also clear that the committee had before it the 2007 police report, which

indicated that each vehicle involved in the accident suffered only slight damage.

Even without Ramos’s help, we think the committee could have deduced from this

                                         -8-
report that the accident may not have been serious. In any event, we conclude

that Ramos’s failure to highlight specific sections of the police report was not so

far outside a wide range of reasonableness as to be irrational, particularly in light

of the arguments he did make. See Young, 95 F.3d at 998 (holding that union’s

failure to present a particular argument was insufficient to create a fact issue in

light of its other efforts).

              Ramos’s Alleged Failure to Keep Out Certain Evidence

       Menges also claims that Ramos allowed the committee to hear damaging

evidence of his poor driving history, specifically, a police report from a 2005

accident and a handful of citizen complaints. He argues that under the CBA, such

evidence was not admissible at the hearing because it was irrelevant to the

circumstances surrounding the 2007 accident for which he was discharged. It is

undisputed that the committee saw this damaging evidence, which was included in

a packet of material prepared by the company. But it is also undisputed that

Ramos objected to this evidence, and that at least with respect to the 2005

accident report, the objection was sustained. Menges argues that the objection

came too late because the committee had already heard the damaging evidence.

What he fails to explain, however, is what Ramos could have done differently. It

appears the committee had the sole power to rule on evidentiary issues. As such,

whether Ramos raised his objections early or late in the proceeding appears to




                                          -9-
have been of little consequence–either way the committee had to see the evidence

in order to rule on its admissibility.

      Furthermore, even if Ramos’s handling of this evidentiary issue was

unreasonable, to defeat summary judgment, Menges must raise an inference that

the inadmissible evidence tainted the committee’s decision. See Webb, 155 F.3d

at 1239 (explaining that there must be “substantial reason to believe that a union

breach of duty contributed to the erroneous outcome of the contractual

proceedings”). We are unwilling to assume that this element is satisfied. The

2007 accident report indicated that Menges’s failure to yield at the intersection

caused another driver to strike his truck so forcefully that the other driver’s car

spun 180 degrees. The committee could have reasonably concluded from this

evidence alone that Menges recklessly caused a serious accident, sufficient to

justify his discharge under Article 46. There is simply insufficient evidence that

facts unrelated to the accident itself contributed to the adverse decision of the

grievance committee.

             Ramos’s Preparation and Coaching

      Finally, we turn to Menges’s arguments concerning Ramos’s lack of

preparation and failure to coach him during his own statement. ABF fired

Menges once before in 2005, but Ramos won his reinstatement through a

successful grievance. In support of his perfunctory representation argument here,

Menges claims that Ramos was better prepared to handle the 2005 grievance than

                                         -10-
he was for the 2007 grievance. He offers nothing specific in support of this

argument except for his own perception, offered by way of affidavit, that Ramos

was not prepared. A perception that we note appears to conflict with Menges’s

own deposition testimony, where he admitted that Ramos delivered a prepared

statement to the committee and objected to the company’s evidence on his behalf.

Without more, Menges’s subjective opinion about Ramos’s preparedness is not

sufficient to raise a fact issue as to the reasonableness of Ramos’s representation.

      Finally, Menges complains that Ramos failed to remind him to tell the

committee he was willing to take a non-driving job until his retirement even

though he specifically asked Ramos to do so. Even accepting this allegation as

true, Menges admits that he was given an opportunity to address the committee,

and that nothing prevented him from making this statement on his own behalf.

Ramos’s failure to jog his memory hardly constitutes a breach of the duty of fair

representation.

                                  III. Conclusion

      Following Menges’s termination, the union filed a grievance on his behalf

and participated in all aspects of the grievance process. Union business agent

Michael Ramos consulted with Menges before the grievance committee hearing,

asserted arguments on his behalf, and objected to evidence submitted by the

company. Menges was nonetheless dissatisfied with Ramos’s performance. But

as we have explained, compliance with the duty of fair representation neither

                                         -11-
guarantees nor depends upon a satisfied union member. For the reasons explained

above, we agree with the district court that Menges’s evidence was insufficient to

overcome summary judgment with respect to the legal sufficiency of the union’s

representation. Its judgment is therefore AFFIRMED.


                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




                                        -12-
