                                                              FILED
                                                   United States Court of Appeals
                      UNITED STATES CO URT O F APPEALS     Tenth Circuit

                                                                  September 25, 2007
                             FO R TH E TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

    ANTH ONY LEW IS,

              Plaintiff-Appellant,

     v.                                                    No. 07-3119
                                                  (D.C. No. 5:06-CV -4066-KGS)
    UFCW LOCAL 2,                                           (D . Kan.)

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.




          Plaintiff Anthony Lewis appeals from a district court order granting

summary judgment in favor of defendant UFCW Local 2 (“Local 2”) after

concluding that M r. Lewis failed to sue his former union within the time limit




*
       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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
applicable to duty-of-fair-representation claims. W e have jurisdiction under

28 U.S.C. § 1291 and we AFFIRM .

                                    I. Background

A. Facts

      In 2000, M r. Lew is was hired as a cashier by Balls Price Chopper (“Balls”),

a grocery store in Kansas City, Kansas. At that time, he became a member of

Local 2. In September 2004, M r. Lewis was fired, and in response, Local 2 filed

a grievance on his behalf with Balls. In an October 1, 2004, letter, Balls denied

Local 2’s grievance, setting forth a multitude of reasons that it claimed justified

M r. Lewis’s termination. After consulting with its attorney, Local 2 determined

that it would likely not prevail should it force the matter into arbitration, so it

closed its file on M r. Lewis’s grievance. On February 24, 2005, M r. Lewis sent

Local 2 a letter stating that he wished to appeal to the Executive Board the

union’s decision not to arbitrate his case. Local 2’s president, Tom B. Price,

responded on April 8. He informed M r. Lewis that his appeal would be heard at

the Executive Board’s next regular meeting on April 26, and he invited M r. Lewis

to attend. M r. Price also stated that the Executive Board would consider any

written statement that M r. Lewis wished to submit in lieu of attending the

hearing. M r. Lewis submitted such a statement on April 21.

      On M ay 3, Cindi Nance, Local 2’s recorder and director of collective

bargaining, sent M r. Lewis a letter regarding his appeal. The letter stated that

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after review ing all the facts relevant to M r. Lewis’s grievance, including his

statement, “the Executive Board voted to deny [his] appeal and [to] uphold the

closing of [his] grievance.” R., Doc. 23, Ex. K. The letter went on to explain

that “[b]ased on all the facts of the grievance, the Board believed that the Local

would not prevail if this grievance was submitted to arbitration.” Id.

B. District Court Proceedings

      On June 20, 2006, M r. Lewis, proceeding pro se, filed a lawsuit against

Local 2 in connection w ith its prosecution of his grievance against Balls. He

alleged that he “was terminated from his former employer” and that Local 2

“voted not to arbitrate his case.” Id. Doc. 1 at 3. He further claimed that Local 2

“inadequately and insufficiently represented [him] in any issue or grievance” and

that “[s]ome issue[s] were not resolved, [while] other issues were resolved on

behalf of the company.” Id. He sought $75,000 in damages to compensate him

for “union dues” and “inadequate representation.” Id. at 4. Local 2 responded

with a motion for summary judgment, arguing that M r. Lewis’s claim was time

barred.

      The district court agreed with Local 2 and granted its motion in an order

dated February 28, 2007. First, the court held that despite M r. Lewis’s attempt to

characterize his claim as a breach of contract or state tort action, it was most

appropriately considered a duty-of-fair-representation claim implied under the

scheme of the National Labor Relations Act, as set forth in DelCostello v. Int’l

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Bhd. of Team sters, 462 U.S. 151, 164, 172 (1983), and its progeny. See R., Doc.

35 at 7-8. Second, the court held, under well-settled law, that the statute of

limitations applicable to such a claim is six months. Id. at 9; see Hagerman v.

United Transp. Union, 281 F.3d 1189, 1197 (10th Cir. 2002) (“A six-month

statute of limitations applies to duty of fair representation claims.”). It went on to

explain that such a claim “begins to run when an employee ‘knows or in the

exercise of reasonable diligence should have known or discovered the acts

constituting the union’s alleged violations.’” R., Doc. 35 at 10 (quoting

Spaulding v. United Transp. Union, 279 F.3d 901, 908 (10th Cir. 2002) (further

quotation omitted)). The court concluded that in this case, M r. Lewis’s claim

began to run, at the latest, on or about M ay 3, 2005, when Cindi Nance informed

him that Local 2’s B oard voted to uphold its decision not to arbitrate his

grievance. Since he failed to file his lawsuit within six months of that date, the

court concluded that the statute of limitations had expired as to his claim and that

Local 2 was entitled to summary judgment. After filing an unsuccessful motion

seeking to alter, amend, or set aside the judgment under Fed. R. Civ. P. 59(e), M r.

Lewis filed his appeal in this court.

                                    II. Discussion

      W e review a district court’s grant of summary judgment de novo.

Hagerman, 281 F.3d at 1194. Summary judgment is proper if the record

establishes “that there is no genuine issue as to any material fact and that the

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moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“In applying this standard, we review the factual record and all reasonable

inferences therefrom in the light most favorable to the party opposing summary

judgment.” Hagerman, 281 F.3d at 1194.

      The district court granted summary judgment to Local 2 based on

well-settled law that conclusively determined not only the nature of M r. Lew is’s

claim but the statute of limitations applicable to it. As the court explained, it had

no choice but to award summary judgment to Local 2 because there is no dispute

that M r. Lewis filed this lawsuit approximately seven months after the limitations

period expired. W e concur fully with the district court’s thorough and

well-reasoned opinion of February 28, 2007, and we note that M r. Lewis has

raised no arguments on appeal that were not properly addressed therein.

Accordingly we AFFIRM the district court’s judgment for the same reasons

articulated in its opinion, dated February 28, 2007.



                                                       Entered for the Court


                                                       W ade Brorby
                                                       Senior Circuit Judge




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