
USCA1 Opinion

	




        April 19, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2152                                   ANDREW P. LORE,                                Plaintiff, Appellant,                                          v.              MARVIN T. RUNYON, POSTMASTER GENERAL, UNITED STATES POSTAL               SERVICE AGENCY AND VINCENT SOMBROTTO, PRESIDENT NATIONAL                           ASSOCIATION OF LETTER CARRIERS,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Andrew P. Lore on brief pro se.            ______________            Donald K. Stern, United States Attorney, and  George B. Henderson,            _______________                               ____________________        II, Assistant U.S. Attorney, on brief for Marvin T. Runyon, Postmaster        __        General, appellee.            Peter D. DeChiara, Cohen,  Weiss and Simon, Christopher N. Souris,            _________________  _______________________  _____________________        and  Feinberg,  Charnas &  Birmingham, P.C.  on  brief for  Vincent R.             ______________________________________        Sombrotto, appellee.                                 ____________________                                 ____________________                      Per Curiam.  Appellant Andrew Lore appeals from the                      __________            grant of summary judgment in favor of Marvin Runyon, Jr., the            United  States  Postmaster  General, and  Vincent  Sombrotto,            President  of  the National  Association  of Letter  Carriers            (NALC).  We affirm for the following reasons.                   1.  To  the extent Lore's  suit was  based on the  claim            that the United States Postal Service failed to pay him fully            for  his  military leave  in 1993  and  that NALC  refused to            arbitrate  that issue,  it was  time-barred, as  the district            court correctly  explained in  its order dated  September 15,            1995.  We note as well  that Lore offered no evidence showing            that   NALC's    refusal   to   arbitrate    was   arbitrary,            discriminatory  or undertaken  in bad faith.   See  Miller v.                                                           ___  ______            U.S. Postal Service, 985 F.2d 9,  11 (1st Cir. 1993) (a union            ___________________            breaches its duty of fair representation only if  its conduct            is arbitrary,  discriminatory  or in  bad  faith)  (quotation            marks and citation omitted).  To the contrary, NALC submitted            evidence  showing  that its  decision  not  to arbitrate  was            reasonable  and  undertaken in  good  faith.   Hence,  Lore's            claims  against  appellees  were   meritless.    See  id.  (a                                                             ___  ___            plaintiff's   failure  to   establish   the  union's   unfair            representation defeats his connected breach of contract claim            against his employer).                 2.  To the  extent Lore's suit asserted that  the Postal            Service had breached  its collective bargaining  agreement by                                         -2-            deducting time spent on military leave  from his annual leave            without  his prior consent  and that NALC  had not vigorously            arbitrated   that issue,  it was  dismissable for  failure to            exhaust  available contractual  remedies.   See Hayes  v. New                                                        ___ _____     ___            England  Millwork Distributors,  Inc., 602  F.2d 15,  18 (1st            _____________________________________            Cir. 1979).  At the time Lore  filed suit, arbitration on the            annual  leave issue was pending.   Lore has  not described or            documented  any specific  action  or inaction  by NALC  which            unreasonably  delayed the arbitration  and which might excuse            his obligation to exhaust his contractual remedies.                 3.     Lore's claim  of  discrimination did  not  assert            discrimination  on  the  basis  of a  protected  status,  but            amounted essentially  to a claim that the  Postal Service had            treated him differently than it had treated another employee.            Such a claim  is not actionable.   See Jensen  v. Frank,  912                                               ___ ______     _____            F.2d 517, 520-21 (1st Cir. 1990).                      Affirmed.                       _________                                         -3-
