                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 16 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    SABRINA M. VALDEZ,

                Plaintiff-Appellant,

    v.                                                  No. 04-1160
                                                (D.C. No. CIV-02-2284 (CBS))
    UNITED FOOD & COMMERCIAL                              (D. Colo.)
    WORKERS UNION LOCAL 7; UFCW
    INTERNATIONAL UNION AFL-CIO,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Sabrina M. Valdez appeals from an order granting summary judgment in

favor of defendants United Food & Commercial Workers Local No. 7 and UFCW

International Union AFL-CIO (hereinafter collectively called “the Union”) on her

claims for breach of the duty of fair representation and for discrimination

prohibited by 42 U.S.C. § 2000e-2(c)(1) of Title VII. Our jurisdiction arises

under 28 U.S.C. § 1291, and we AFFIRM.

                      I. Procedural and factual background

      The Union filed a grievance for harassment on behalf of Ms. Valdez and

against her employer in August 2001. Ms. Valdez claimed that her bakery

manager, a female, made the environment hostile, “worked against” her, belittled

her in front of customers, and “rudely” called her over the store intercom. R.,

Doc. 37, Ex. 37 at 1. Ms. Valdez requested a remedy of “cease and desist,

transfer bakery manager if needed.”   Id. Ex. 10 at 3. The Union informed

Ms. Valdez in writing on January 24, 2002, that it had decided not to pursue the

grievance because no discipline had issued from the bakery manager.     Id. Ex. 17.

The Union asked Ms. Valdez to confirm in writing her oral statement that she

“chose to withdraw the [harassment] charge.”     Id. Ex. 19. Instead, Ms. Valdez

later informed the Union that she wanted to appeal the decision.

      In the interim, Ms. Valdez had been terminated on September 25, 2001, for

violating the employer’s absenteeism and tardiness policies, and the Union had


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filed a second grievance for the termination. After the Union negotiated on her

behalf, in October 2001 Ms. Valdez rejected two offers for reinstatement at

different stores owned by her employer. She said she needed “more time to think

about” the offers, and did not return to work. Aplt. Reply Br. at 7-8. Although

the Union had determined that the employer’s claims supporting termination were

“correct and chances were given,” R., Doc. 37 Ex. 26 at 3, in further settlement

negotiations held in late January 2002, the Union informed Ms. Valdez that it had

convinced the employer to reinstate her to her former position beginning

February 3, 2002, see id. Ex. 21. Ms. Valdez initially agreed to the settlement,

see Aplt. Reply Br. at 8-9, but later refused to sign the agreement or to return to

work, stating that she thought the offer was “unfair” because it did not “pay in

full all back pay and make whole for all losses.” R., Doc. 37 Ex. 25. The Union

notified Ms. Valdez that it would not further pursue her termination grievance,

and the executive board upheld that decision on February 15, 2002.

      Despite the fact that she was no longer an employee, Ms. Valdez informed

the Union that she still wanted to pursue the appeal of her harassment grievance.

The executive board denied her appeal, informing her in writing on April 11,

2002, that the harassment grievance was mooted by her termination.      Id. Ex. 38 at

1, 3. On December 6, 2002, Ms. Valdez filed suit against the Union for breach of

the duty of fair representation and for violating Title VII. R., Doc. 3.


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                                II. Standard of review

              We review the district court’s grant of summary judgment de
       novo, applying the same legal standard used by the district court.
       Summary judgment is appropriate “if the pleadings, depositions,
       answers to interrogatories, and admissions on file, together with the
       affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to a judgment as a
       matter of law.” Fed. R. Civ. P. 56(c). When applying this standard,
       we view the evidence and draw reasonable inferences therefrom in
       the light most favorable to the nonmoving party.

              Although the movant must show the absence of a genuine issue
       of material fact, he or she need not negate the nonmovant’s claim.
       Once the movant carries this burden, the nonmovant cannot rest upon
       his or her pleadings, but must bring forward specific facts showing a
       genuine issue for trial as to those dispositive matters for which he or
       she carries the burden of proof. The mere existence of a scintilla of
       evidence in support of the nonmovant’s position is insufficient to
       create a dispute of fact that is genuine; an issue of material fact is
       genuine only if the nonmovant presents facts such that a reasonable
       jury could find in favor of the nonmovant. If there is no genuine
       issue of material fact in dispute, we determine whether the district
       court correctly applied the substantive law.

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.      , 165

F.3d 1321, 1326 (10th Cir. 1999) (brackets and further citations and quotations

omitted).

   “Summary judgment necessarily implicates the substantive evidentiary

standard of proof that would apply at the trial on the merits.”   Pub. Serv. Co. of

Colo. v. Cont’l Cas. Co. , 26 F.3d 1508, 1517 n.8 (10th Cir. 1994) (quotation

omitted). “[F]ailure of proof of an essential element renders all other facts

immaterial.”   Koch v. Koch Indus., Inc. , 203 F.3d 1202, 1212 (10th Cir. 2000).

                                             -4-
“[W]here the nonmoving party will bear the burden of proof at trial on a

dispositive issue, that party must go beyond the pleadings and designate specific

facts so as to make a showing sufficient to establish the existence of an element

essential to that party’s case in order to survive summary judgment.”

McKnight v. Kimberly Clark Corp.        , 149 F.3d 1125, 1128 (10th Cir. 1998)

(quotations omitted).

       We “review de novo a district court’s ruling regarding the applicability of a

statute of limitations.”   Plaza Speedway Inc. v. United States     , 311 F.3d 1262,

1266 (10th Cir. 2002) (quotation omitted).

                                       III. Analysis

       A. Statute of limitations.       After significant discovery, the magistrate

judge recommended that summary judgment be granted in favor of the Union on

the breach-of-duty-to-represent claim because it was time-barred. R., Doc. 43 at

4; see Cantrell v. Int’l Bhd. Elec. Workers Local 2021      , 32 F.3d 465, 467

(10th Cir. 1994) (noting the six-month limitations period for breach-of-duty-to-

represent suits). The district court adopted that recommendation.         Id. Doc. 48.

On appeal, Ms. Valdez claims that the district court erred because it did not

properly toll the limitations period, citing     Frandsen v. Brotherhood of Ry., Airline

& S.S. Clerks, Freight Handlers, Exp. & Station Employees         , 782 F.2d 674, 681

(7th Cir. 1986). Aplt. Br. at 4. But      Frandsen does not apply.    Frandsen holds


                                               -5-
that the six-month statute of limitations is tolled “by the pursuit of   internal union

remedies.” Id. (emphasis added). The district court’s limitations calculation was

properly based on a starting date of April 11, 2002, the date all internal union

remedies had been finally denied. Ms. Valdez’s suit, which was not filed until

December 6, 2002, was untimely.

       B. Title VII.     The district court granted summary judgment on

Ms. Valdez’s Title VII claim because she presented no evidence that the Union’s

reasons for handling her grievances the way it did were pretextual, and no

evidence of any conduct from which the court could infer that the Union’s actions

were based on her race, gender, or national origin. R. Doc. 43 at 6-7.

Ms. Valdez’s appeal presents no cogent argument or evidence sufficient to disturb

the district court’s ruling.   See McKnight , 149 F.3d at 1128 (to survive summary

judgment, “nonmoving party must designate specific facts to make a showing

sufficient to establish the existence of an element essential to that party’s case”).

       The judgment of the district court is AFFIRMED. Appellant’s motion to

proceed in forma pauperis is granted.



                                                          Entered for the Court



                                                          Mary Beck Briscoe
                                                          Circuit Judge

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