                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 13-3220
                                    ____________

                              KATHLEEN LOPRESTI,
                                            Appellant

                                          v.

      COUNTY OF LEHIGH; AFSCME, DISTRICT COUNCIL 88, LOCAL 543
                            ____________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                               (D.C. No. 5-12-cv-02832)
                     District Judge: Honorable Juan R. Sanchez
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 2, 2014

             Before: HARDIMAN, SCIRICA, and ROTH, Circuit Judges.

                                (Filed: July 10, 2014)
                                    ____________

                                      OPINION
                                    ____________

HARDIMAN, Circuit Judge.

      Kathleen Lopresti appeals the District Court’s summary judgment in favor of her

former employer, Lehigh County, and her former employee union, the American

Federation of State, County and Municipal Employees, District Council 88, Local 543

(AFSCME). We will affirm.
                                              I

       Because we write primarily for the parties, who are familiar with the case, we

recount only the facts and procedural history essential to our decision.

       Lopresti worked as a Lehigh County corrections officer from 2002 until

September 2011, when she was fired in the wake of an incident that occurred at the

Lehigh County Prison on August 18, 2011. Specifically, Lopresti was accused of

insulting and aggressively approaching an inmate. According to the County, her

termination was the culmination of “a repeated history of volatile, disrespectful behavior

toward both staff and inmates” during her time as an officer. A49.

       Following Lopresti’s termination, AFSCME filed a grievance on her behalf and

proceeded toward arbitration, with a hearing scheduled for January 19, 2012. Lopresti

also filed for unemployment benefits; on November 23, 2011, her claim was denied, and

she was informed that she had until December 6, 2011 to appeal that denial. The County

subsequently proposed a settlement, agreeing not to contest Lopresti’s receipt of

unemployment benefits in exchange for a waiver of rights, including AFSCME’s

withdrawal of the grievance, and offering to provide a neutral employment reference.

       On January 5, 2012, Lopresti left a voicemail for Walter Francis, AFSCME’s local

staff representative, informing him she would accept the settlement offer. Francis relayed

this to the County the next day. The County was unable to fulfill its end of the bargain,

though, after Lopresti’s attorney disclosed that he had failed to appeal the denial of

Lopresti’s unemployment benefits by the December 6 deadline. With the deal scuttled,
                                              2
Lopresti told Francis that she wanted to move forward with the arbitration, so Francis

began reviewing relevant materials for the hearing. However, on January 18, 2012,

Francis notified Lopresti that he would be withdrawing the grievance because it lacked

merit. AFSCME officially withdrew the grievance the next day.

       On May 23, 2012, Lopresti sued AFSCME for breach of the duty of fair

representation, and she sued the County for breach of contract. Lopresti also sued both

defendants for age discrimination, in violation of federal law. On September 19, 2012,

Lopresti sought—and the next day received—a voluntary dismissal of the age

discrimination claims. In motions filed in October 2013, AFSCME and the County

sought summary judgment on the remaining claims. The District Court granted summary

judgment to the Union and County on June 6, 2013. This timely appeal followed.1

                                             II

       On appeal, Lopresti argues that the District Court lacked jurisdiction to adjudicate

the state-law breach of duty of fair representation and breach of contract claims. She also

contends that summary judgment was improper. These arguments are unavailing.

                                             A

       In its summary judgment opinion, the District Court stated that it retained




       1
           We have jurisdiction under 28 U.S.C. § 1291.

                                             3
supplemental jurisdiction over the state-law claims pursuant to 28 U.S.C. § 1367.2

Section 1367(c)(3) provides that a district court “may decline to exercise supplemental

jurisdiction” over state-law claims if the court “has dismissed all claims over which it has

original jurisdiction.” However, a district court may decide state-law claims remaining

after the dismissal of federal claims if “considerations of judicial economy, convenience,

and fairness to the parties provide an affirmative justification for doing so.” Bright v.

Westmoreland County, 443 F.3d 276, 286 (3d Cir. 2006) (quoting Borough of West

Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).

       By the time Lopresti sought and received dismissal of her federal age

discrimination claims, a magistrate judge had held a settlement conference, discovery

was underway, and the deadline for filing dispositive motions was less than a month

away. Moreover, Lopresti did not seek remand of the state claims until even later, after

discovery was complete and summary judgment motions had been filed. In this

procedural posture, the District Court was well within its discretion to exercise

supplemental jurisdiction over Lopresti’s state-law claims, for the reasons articulated in

its opinion.

                                              B

       Lopresti also argues that summary judgment was inappropriate because genuine

       2
        Because Lehigh County is a “political subdivision” of a state and thus does not
qualify as an “employer” under the federal Labor Management Relations Act, these
claims are governed by state law. See Felice v. Sever, 985 F.2d 1221, 1226–27 (3d Cir.
1993); Manfredi v. Hazleton City Auth., 793 F.2d 101 (3d Cir. 1986).

                                              4
issues of material fact exist, and because the District Court misapplied the law and failed

to view the facts in the light most favorable to her. The record shows otherwise.

       The District Court granted summary judgment on two state-law claims: breach of

the duty of fair representation and breach of contract. We consider them in turn,

exercising plenary review and applying the same standard as the District Court. American

Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 580–81 (3d Cir. 2009).3

       A union has a duty to fairly represent all of its members, both in collective

bargaining with an employer and in its enforcement of the resulting collective bargaining

agreement. Vaca v. Sipes, 386 U.S. 171, 177 (1967). A breach of this duty occurs “only

when a union’s conduct toward a member of the collective bargaining unit is arbitrary,

discriminatory, or in bad faith.” Id. at 190; see also Dorfman v. Pa. Soc. Serv. Union,

Local 668 of the SEIU, 752 A.2d 933, 936 (Pa. Commw. Ct. 2000). Under Pennsylvania

law, a public employee must meet a high bar to establish this breach of duty. Martino v.

Transport Workers’ Union of Philadelphia, Local 234, 480 A.2d 242, 250 n.12 (Pa.

1984). A “union is not responsible for negligence in processing a grievance”; rather, it is

“only responsible to its members for acts of bad faith with respects to a grievance.” Id.

This “insulates the union from exposure where, after a proper exercise of discretion, it

declines to process a frivolous and meritless grievance” and is intended to shield unions

from having “to take all grievances to arbitration to avoid expensive lawsuits” from

       3
         Summary judgment is appropriate only if there is no genuine dispute as to any
material fact, viewing the record in the light most favorable to the nonmovant. American
Eagle Outfitters, 584 F.3d at 581.
                                             5
disgruntled employees. Id. See also Vaca, 386 U.S. at 191 (holding that an employee

does not have “an absolute right to have his grievance taken to arbitration”); Ziccardi v.

Commonwealth, 456 A.2d 979, 981 (Pa. 1982) (holding that a union has “broad

discretion in determining whether to pursue” a grievance).

       Here, Lopresti contends that AFSCME’s “perfunctory processing” of her

grievance and subsequent decision to withdraw it constitutes bad faith. Lopresti Br. at 23.

In our view, the record does not contain facts sufficient to survive summary judgment.

       Lopresti argues that Francis and the County colluded against her in a “secret deal,”

but the evidence she cites as proof—most notably, Francis’s delay in relaying the

County’s settlement offer to her and his recommendation that she accept it before he had

examined her personnel file or watched a video of the incident—indicates nothing of the

sort. Moreover, the record flatly contradicts Lopresti’s claim that Francis did not watch

the video of the incident in question until after he withdrew the grievance; indeed,

Lopresti stated at her deposition that Francis discussed the content of the video with her

when he called to tell her he was withdrawing the grievance. And the fact that the Union

opted to forego the arbitration after having already paid for it does not indicate anything

untoward, contrary to Lopresti’s claim that it is evidence of personal animus. In addition,

while the record contains some evidence that Francis did not “perform his due diligence,”

as the District Court put it, in examining the background and facts surrounding Lopresti’s

grievance, such conduct does not rise to the level of bad faith. See Martino, 480 A.2d at

250 n.12.
                                             6
       Lopresti also argues that AFSCME’s withdrawal of her grievance was

discriminatory. Specifically, she alleges that the Union failed to pursue arbitration

hearings for female corrections officers while doing so for male officers.

       In an affidavit filed with her summary judgment response, Lopresti listed five

terminated female corrections officers who did not receive a grievance hearing, and seven

male officers who did receive hearings. However, this information is inadmissible

hearsay. Lopresti simply listed the officers’ names and descriptions of their grievances in

her own affidavit without any foundation, attribution or indication of how she had or

could have personal knowledge of other officers’ disciplinary records and how the Union

handled them. In her brief, Lopresti calls it “inexplicable” that the District Court did not

credit this affidavit, because “much of the information was known to her because of her

long tenure with the county.” Lopresti Br. at 25. But that description fails to explain why

the evidence is admissible; Lopresti’s “long tenure” does not automatically bestow

personal knowledge upon her, and without more Lopresti could not testify to such

unsupported claims at trial for the truth of the matter asserted.

       The record does contain some evidence that supports Lopresti’s claim: a sworn

statement from former officer Phyllis Hamm, one of the female officers named on

Lopresti’s list, explaining her own case and alleging that the Union would file grievances

for men and not women. In addition, Francis testified that two of the male officers on

Lopresti’s list did proceed to arbitration. However, as potentially troubling as Lopresti’s

allegations about the treatment of female officers may be, this is not enough to raise a
                                              7
triable issue of fact. Like Lopresti’s affidavit, Hamm’s statement presents a hearsay

problem, and the record lacks detail regarding the alleged disparate treatment of men and

women—the kind of comparator evidence a jury would need to be able to find for

Lopresti. On this record, reasonable jurors could not conclude that the Union

discriminated when it decided to withdraw Lopresti’s grievance. Accordingly, the District

Court’s summary judgment on this claim was proper. See, e.g., Speer v. Philadelphia

Housing Auth., 533 A.2d 504, 507 (Pa. Commw. Ct. 1987) (employee who “introduced

no evidence tending to establish fraud, misrepresentation, bad motive or the like on the

part of the union” would not have been entitled to relief on her breach of duty of fair

representation claim).

       Lopresti’s breach of contract claim against Lehigh County also fails. In

Pennsylvania, “an aggrieved public employee cannot sue his employer for breach of a

labor contract governed by state collective bargaining laws . . . unless he shows, by

specific facts, that the employer actively participated in the union’s bad faith or that the

employer conspired or colluded with the union to deny the employee his rights under the

labor contract.” Garzella v. Borough of Dunmore, 62 A.3d 486, 494 (Pa. Commw. Ct.

2013) (citing Ziccardi, 456 A.2d at 981–82); see also Runski v. AFSCME, Local 2500,

598 A.2d 347, 350 (Pa. Commw. Ct. 1991), aff’d without op., 642 A.2d 466 (Pa. 1994).

Though Lopresti alleges that the Union and County conspired to deprive her of her

arbitration hearing, there is no evidence on which a jury could find for Lopresti on this

claim, let alone specific facts implicating the County. Lopresti’s supposition that the
                                              8
County and the Union were conspiring against her because Francis “spoke with [the

County’s representative] more than he spoke to me [about] my case” and recommended

she accept the settlement is insufficient. A369–71. Lopresti conceded that she had not

even heard a rumor of a “working agreement” between the Union and the County. A370.

Therefore, summary judgment was also proper on this claim.

                                          ***

      For the reasons stated, we will affirm the judgment of the District Court.




                                            9
