                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-4028
                                      ___________

                                   BARRY YOUNG,
                                             Appellant

                                               v.

                        LOCAL 1201 FIREMEN & OILERS UNION
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 07-cv-03576 )
                      District Judge: Honorable Louis H. Pollak
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 9, 2011
              Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

                            (Opinion filed: March 15, 2011)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Pro se appellant, Barry Young, appeals from the order of the United States District

Court for the Eastern District of Pennsylvania entering judgment in favor of appellee

Local 1201, Firemen & Oilers Union (“Local 1201” or “Union”) and dismissing his

complaint. For the reasons that follow, we will affirm the District Court’s judgment.
                                            I.

       Since the facts underlying the instant appeal are well-known to the parties, only a

summary is provided here. Young, who is African American, began his employment

with the School District of Philadelphia (“School District”) on December 9, 2002, when

he was hired as a Building Engineer Trainee. He was subsequently promoted to a

Building Engineer. During his employment, Young was a member of Local 1201.

Young asserts that his problems with Local 1201 began almost immediately.

       Young’s need for the assistance of Local 1201 representatives arose within the

first month of his employment as he was accused of stealing just two weeks after being

hired. A hearing to determine whether he should be discharged was held on January 23,

2003. Prior to the January hearing, he provided union president Michael McGinley with

information regarding his work history which he thought might be useful. For whatever

reason, McGinley – who is Caucasian – failed to bring the documents to the hearing.

McGinley had a half-hour closed-door        meeting with Young’s supervisor Timothy

McCollum and the hearing officer. Despite McCollum’s recommendation that Young be

discharged, his employment with the School District was not terminated. According to

Young, he was only spared termination because of a subsequent phone call from his state

representative.

       Young’s next encounter with Local 1201 occurred when he spoke to Ron Ellis, the

Union’s substance abuse program representative. Young states that he suffers from

depression and found himself “self-medicating” with alcohol, cocaine, and crack. At

Ellis’ insistence, Young attended a rehabilitation program in Florida from January 10,

                                            2
2004, to February 13, 2004, and subsequently continued with outpatient rehabilitation in

Pennsylvania. After reporting back to the School District, Young signed an “Employee

Notice of Self-Referral” on March 16, 2004. Young contacted Ellis – who is African

American – a second time on June 22, 2004, when he found himself depressed and

drinking. According to Young, Ellis once again required him to attend the Florida

rehabilitation center. Young stayed in the Florida facility for approximately thirty days

beginning on June 22, 2004, and again attended outpatient rehabilitation back in

Pennsylvania. Young did not sign a notice of self-referral for his second rehabilitation

stay.

        The School District coded the first two days of each of Young’s stays at the

Florida rehabilitation center as unexcused absences. A hearing on the first two of these

absences was held in April 2004. Young was represented at the hearing by Ellis and the

vice president of Local 1201, Ernest Bennett, who is also African American. Apparently,

the School District official indicated that the absences would be removed if Ellis

telephoned the official the next day, but Ellis never called and the unauthorized absences

remained on Young’s record. Young also received a disciplinary letter for the pair of

unexcused absences from his June 2004 rehabilitation stay. According to Young, neither

Ellis nor Bennett assisted him in dealing with the issue despite his requests for their help.

        Young became eligible to return to work shortly after passing a return-to-duty

drug test on June 9, 2005. As provided for by Section 5.6 of the Policy on Substance

Abuse (“PSA”) contained in the Collective Bargaining Agreement which governs the

relationship between Local 1201 and the School District, Young was subject to

                                              3
unannounced follow-up drug and alcohol testing.         One such test was conducted on

October 17, 2005, and Young tested positive for cocaine. Several days later, on October

21, 2005, Young was summoned to the office of School District Official Carol Kenney,

where he was informed of the positive test results and provided a memorandum

explaining that a termination hearing was scheduled for October 25, 2005. Ellis appeared

at this meeting. Shortly after his arrival, Ellis stated loudly to Young that the sample

tested positive, that Young was high at the moment and that he would be fired. Ellis

made this same statement in the presence of others as well. During the meeting, both

Young and Ellis requested that Young’s “split sample” from the October 17th specimen

be tested.

       After the October 21st meeting, Young complained to McGinley about Ellis and

requested representation by another Local 1201 representative. McGinley denied the

request. While en route to the termination hearing on October 25, 2005, Ellis told Young

he would be terminated if he did not resign. Ellis also informed Young that his split

sample had tested positive for cocaine, although it was later learned during discovery that

the School District did not test the split sample. According to Young, Ellis “coerced”

him into signing a form resignation letter, a letter Ellis would later refuse to allow Young

to withdraw.

       Young ultimately filed a complaint on March 28, 2006, with the Pennsylvania

Human Relations Commission (“PHRC”), alleging that Local 1201’s conduct at the time

of his termination was discriminatory. By letter dated May 14, 2007, the PHRC notified

Young of its inability to conclude that a violation of the Pennsylvania Human Relations

                                             4
Act, 43 Pa. Cons. Stat. § 951 et seq. (“PHRA”), had been established. The PHRC also

notified Young that he had two years to file a complaint in the court of common pleas

“based on the right to freedom from discrimination granted by the PHRA.”

                                             II.

       On August 30, 2007, Young commenced suit against Local 1201 in the United

States District Court for the Eastern District of Pennsylvania on the basis of the actions it

took during his term of employment with the School District. Young asserted that Local

1201 engaged in unlawful acts of discrimination and retaliation based on race in violation

of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and the PHRA. In

particular, Young alleged that Local 1201 failed to represent him when he was terminated

in October 2005, and when he requested representation in disciplinary actions for

unauthorized absences. Young also alleged a defamation claim under Pennsylvania law

based on statements made by Local 1201 in its statement filed with the PHRC and

statements made by Local 1201 representative Ellis in the presence of others.

       At the close of discovery, Local 1201 filed a motion for summary judgment. In a

Memorandum Opinion and Order entered on September 30, 2009, the District Court

granted that motion and entered judgment in favor of Local 1201. The District Court

concluded that Young failed to establish a prima facie case of discrimination under Title

VII insofar as he failed to establish that the actions of Local 1201 or representative Ellis

were motivated by some discriminatory animus. While recognizing that Young’s history

with Ellis was contentious, the District Court noted that Young himself stated that he did

not believe Ellis sent him to the Florida rehabilitation program “because of [his] race” or

                                             5
“as a form of discrimination.” See Dist. Ct. Mem. Op. at 9. Young likewise could not

say he believed that Ellis’ actions in October 2005 were racially motivated, nor could he

point to “any one person” in Local 1201 who discriminated against him on account of his

race. Id.

       Young’s attempt to have the District Court infer discrimination when comparing

the manner in which Local 1201 treated him to that of two white building engineers who

failed one drug test each and were not forced to resign fared no better. The District Court

agreed with Local 1201 that white “Employee C” is the proper comparator. Employee C

self-referred twice, subsequently failed a drug test and then, pending a termination

hearing, ultimately signed the same resignation letter as did Young. The District Court

concluded that Local 1201’s treatment of both employees was consistent and

“substantively symmetrical.” Id. at 10. Even assuming arguendo that Local 1201 failed

to properly represent the two employees, there was no evidence presented to suggest that

its failure to do so was racially motivated.

       To the extent Young’s claim for discriminatory breach of the duty of fair

representation was intended to extend to McGinley’s actions during the October 2003

termination hearing, the District Court concluded that such a claim would fail insofar as

there was no evidence presented that Local 1201 held any “subjective hostility” towards

Young or that any such hostility “adversely affected the union’s representation.” Young

himself stated that he was not aware, back in 2003, that McGinley was discriminating

against him because of his race.       The District Court thus concluded that Young’s

conspiracy claim was too speculative to survive summary judgment. Id. Moreover,

                                               6
Young was not terminated after the 2003 hearing. Accordingly, there was no evidence

presented to indicate that McGinley’s actions adversely affected Local 1201’s

representation, or that McGinley’s actions were arbitrary or taken in bad faith.

       The District Court disposed of Young’s claims that Ellis and Bennett failed to deal

with his unexcused absences and that Ellis acted aggressively toward him with little

discussion as the District Court found that there was simply no evidence presented

regarding a discriminatory animus.      Once again, Young himself stated that he was

unaware of racial animosity on the part of either Ellis or Bennett during the relevant

periods. A lack of evidence to support a finding of discriminatory animus likewise

proved fatal to Young’s breach of fair representation claim with respect to Ellis’ false

statement regarding the split sample test and his failure to ensure that the second test had

been performed.

       The District Court determined that summary judgment in favor of Local 1201 was

also warranted on Young’s claim that the Union retaliated against him “for continuously

demanding representation against [his] former employer.” According to the District

Court, Young could not prevail on such a claim given his failure to engage in any activity

protected by Title VII. While Young requested repeated representation from the Union

with respect to his absences coded as unexcused, Young’s motivation in doing so was to

avoid termination on the basis of too many unexcused absences – not because his race

factored into the absences being coded as unexcused.

       Young’s final claim for defamation under Pennsylvania law was disposed of by

the District Court on statute of limitations grounds.       Pennsylvania has a one year

                                             7
limitations period for defamation claims. See 42 Pa. Cons. Stat. § 5523. The events

supporting Young’s claim occurred on October 21, 2005, when Ellis commented that

Young was high, and on June 6, 2006, when Local 1201 incorrectly reported in its PHRC

position statement that Young’s split sample tested positive for cocaine.          Young’s

complaint, however, was not filed until August 30, 2007. The District Court rejected

Young’s contention that the limitations period was equitably tolled on account of the

information contained in the “Notice of Complainant’s Rights” he received from the

PHRC, wherein he was advised that he had two years to file a complaint in the court of

common pleas. The District Court rejected Young’s contention, emphasizing that the

PHRC notice refers to a complaint “based on the right to freedom from discrimination

granted by the Act,” not a state defamation claim. See Dist. Ct. Mem. Op. at 14-15. The

District Court further noted that federal district courts have consistently held “that the

pendency of a discrimination charge before the PHRC … does not toll the statute of

limitations for related Pennsylvania state tort claims.” Id. at 15 (citations omitted).

Finally, the District Court found that equitable tolling does not otherwise apply insofar as

the discovery rule was not applicable to Young’s claim and Local 1201 was not

precluded from relying on the limitations period.

       Given the foregoing analysis, the District Court concluded that summary judgment

was warranted and entered judgment in favor of Local 1201.             This timely appeal

followed.

                                            III.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

                                             8
Court’s grant of summary judgment is plenary and we must affirm if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.1

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there is no

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). A genuine issue of material fact is one that could change the outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

       Initially, we note that Young does not raise any specific challenges in his informal

brief other than to state that the District Court “failed to properly view facts presented by

[him] concerning self-referrals, dates of absences and false statements submitted by

counsel for defendant.” See Aplt’s Informal Brief at 1. Instead, Young asks this Court to

review the facts of his two related civil actions docketed at Young v. Sch. Dist. of Phila.,

E.D. Pa. Civ. No. 06-cv-04485, and Young v. Tom Corbett, et al., E.D. Pa. Civ. No. 07-

cv-03575, in conjunction with the instant appeal and to grant him a trial because the

District Court “should have rejected all defendants [sic] motion[s] for summary judgment

and proceeded to trial.” See Informal Brief at 5. Other than for purposes of discovery,

however, the underlying civil actions have not been consolidated in either the District

Court or this Court. In fact, while Young appealed the District Court’s judgment in

1
   Young filed a timely motion for reconsideration, which was denied by the District Court in a
Memorandum Opinion and Order entered on March 16, 2010. However, Young did not file an
amended notice of appeal, nor was his appellate brief – which is dated May 11, 2010 – filed
within 30 days of the entry of the District Court’s March 16th order such that it can be liberally
construed as the “functional equivalent” of an amended notice. Accordingly, the District Court’s
decision with respect to his reconsideration motion is not within the scope of this appeal.


                                                9
Young v. Sch. Dist. of Phila. and that appeal has been docketed at C.A. No. 10-3536, the

District Court has yet to enter a final order in the civil action of Young v. Tom Corbett, et

al. Our review is thus limited solely to the District Court’s decision disposing of the civil

action underlying the instant appeal.

       After a careful review of the record and the parties’ briefs on appeal, we discern

no error in the District Court’s grant of summary judgment in favor of Local 1201. With

respect to Young’s assertions that Local 1201 and representative Ellis failed on several

occasions to represent him or to do so adequately, in violation of Title VII and the PHRA,

we agree with the District Court’s determination that Young failed to offer any evidence

that the Union’s actions were motivated by discriminatory animus.2 See, e.g., York v.

Am. Tel. & Tel. Co., 95 F.3d 948, 955-56 (10th Cir. 1996) (To establish a prima facie

Title VII claim against a union for a breach of its duty of fair representation, a plaintiff

must show, inter alia, that “there was some indication that the union’s actions were

motivated by discriminatory animus.”). In fact, Young himself stated on numerous

occasions that he either did not believe or did not know whether his race or a

discriminatory motive was behind the actions of Ellis or any other Union representative.

See Dist. Ct. Mem. Op. at 9 – 12, citing relevant portions of Young’s deposition

testimony.

       To the extent Young attempted to present a claim of discrimination through the

circumstantial evidence of Local 1201’s treatment of other employees, we can find no


2
  Title VII and PHRA are analyzed under an identical standard for purposes of deciding a
summary judgment motion. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999).
                                              10
fault with the District Court’s decision to compare Young to Employee C given the

apparent arguable position that Young had also twice “self-referred” under the terms of

the PSA. Moreover, as noted by the District Court, even if the Union’s representation

was inadequate as to both Young and Employee C with respect to the self-referral and

termination issue, there is no evidence in the record to suggest that racial animus was a

motivating factor. Likewise, there simply was no evidence presented that the Union

breached its duty of fair representation by acting in a manner that was arbitrary or in bad

faith. See, e.g., Vaca v. Sipes, 386 U.S. 171, 190 (1967) (a breach occurs only when a

union’s conduct is “arbitrary, discriminatory, or in bad faith.”). The District Court fully

considered the evidence of record and properly concluded that there is no evidence from

which a reasonable fact-finder could rule in Young’s favor under Title VII and the

PHRA.

       We have carefully considered Young’s remaining claim regarding retaliation. We

find the retaliation claim unpersuasive and lacking in record support, either for the

reasons fully explained by the District Court or for the reasons explained by appellee.3

Based on the foregoing, we will affirm the District Court’s judgment.



3
    Even affording Young’s filings a liberal construction, we conclude that his defamation claim
has been waived insofar as it has not been so much as mentioned in his pro se informal opening
brief. An appellant is “required to set forth the issues raised on appeal and to present an
argument in support of those issues in [his] opening brief.” Kost v. Kozakiewicz, 1 F.3d 176, 182
(3d Cir. 1993); see Fed. R. App. P. 28(a)(5), (9). “It is well settled that an appellant’s failure to
identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United
States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). The instant appeal presents no circumstances
which counsel against application of that rule. See, e.g., Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (per curiam) (“While we read briefs filed by pro se litigants liberally, issues not
briefed on appeal by a pro se litigant are deemed abandoned.” (internal citations omitted)).
                                                 11
