                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1652

K ENNETH T. T RUHLAR,
                                                  Plaintiff-Appellant,
                                  v.

U NITED STATES P OSTAL SERVICE, et al.,

                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 06 C 2232—Rebecca R. Pallmeyer, Judge.



     A RGUED D ECEMBER 3, 2009—D ECIDED A PRIL 12, 2010




  Before E ASTERBROOK, Chief Judge, and M ANION and
E VANS, Circuit Judges.
  E VANS, Circuit Judge. In 1998, Kenneth Truhlar was
working as a letter carrier for the United States Postal
Service in Westmont, Illinois, when a car rear-ended his
mail truck, injuring his back and neck. Truhlar sought
partial disability payments but failed to disclose in the
disability compensation paperwork that he was earning
2                                              No. 09-1652

money playing bass guitar for a rock band called BANG!.
When the Postal Service discovered the omission, it
launched an investigation to determine whether he had
engaged in misconduct. It ultimately concluded that he
had, and in 2005, Truhlar was fired. He sued the Postal
Service and his local union, John Grace Branch #825 of
the National Association of Letter Carriers, under § 301 of
the Labor Management Relations Act of 1947 (LMRA), 29
U.S.C. § 185, claiming that the Service breached the col-
lective bargaining agreement by firing him without
just cause and that the union breached its duty of fair
representation. Truhlar’s suit, which is a form of hybrid
litigation, came to an end when the district court granted
the defendants’ motion for summary judgment. Truhlar
appeals that decision.
  Although the parties disagree over a number of (ulti-
mately immaterial) details, the following facts are undis-
puted. In order to collect partial disability payments
following his injury, Truhlar periodically submitted a
Department of Labor (DOL) form called the CA-7, which
includes the following question: “Have you worked
outside your federal job during the period(s) [for which
you are claiming disability]? (Include salaried, self-em-
ployed, commissioned, volunteer, etc.).” Truhlar re-
sponded “no” to this question or failed to answer it on 24
CA-7 forms he submitted between 2000 and 2001, despite
the fact that he earned between $8,775 and $11,000 per-
forming with BANG! during that period. After a Postal
Service inspector videotaped Truhlar playing with
the band, another inspector interviewed him about the
discrepancy. Truhlar claimed he misunderstood the
No. 09-1652                                               3

question on the form. In June 2001, the Postal Service
notified Truhlar that he was being placed on off-duty
status for “failure to provide correct earning information
on your Form CA-7.” A local union steward filed a griev-
ance on Truhlar’s behalf, and when the grievance was
denied, union representative Eric Smith appealed in
accordance with the collective bargaining agreement’s
(CBA) three-step grievance procedure.
  Meanwhile, the Postal Service continued to follow
Truhlar, and in September 2001 a postal inspector issued
an Investigative Memorandum finding that he “failed to
report his outside employment and the subsequent
income to the U.S. Department of Labor.” Two months
later the Postal Service issued Truhlar a notice of removal,
explaining that his failure to disclose his band income
on the CA-7 forms violated four provisions of the Postal
Service’s employee manual, including provisions pro-
hibiting dishonest and immoral conduct. The union
grieved the removal decision on Truhlar’s behalf, and
when the grievance was denied, Smith filed a second
appeal under the CBA.
  Shortly after Truhlar received the notice of removal,
the DOL initiated a forfeiture action seeking repayment
of the disability benefits he had received. At the time,
the U.S. Attorney’s office was also considering bringing
criminal charges against Truhlar, and the Postal
Service and Smith agreed to hold Truhlar’s grievances
in abeyance pending the disposition of those charges
and the DOL proceedings. In May 2004, the DOL found
that Truhlar knowingly omitted his band earnings from
4                                             No. 09-1652

the CA-7 forms, and it issued a decision requiring Truhlar
to forfeit his disability payments. Almost a year later,
Truhlar appealed the DOL’s decision to the Employee
Compensation Appeals Board without telling Smith.
Around the same time, the U.S. Attorney’s office decided
not to pursue criminal charges in part because the loss
amount was low and the DOL had ordered Truhlar to
forfeit his disability payments.
  Late in the summer of 2005, the newly appointed local
postmaster, Diane Anders, called Smith to find out what
was happening with Truhlar’s grievances (under the
CBA the Postal Service could not officially terminate
Truhlar until the grievances were resolved and he re-
mained on off-duty status during all this time). After
Smith told Anders the grievances were being held in
abeyance, she obtained from Postal Service Labor Rela-
tions Specialist Anthony Intoe a copy of the Investiga-
tive Memorandum and the DOL’s decision finding that
Truhlar knowingly failed to report his band income.
Intoe incorrectly told Anders that Truhlar had not ap-
pealed the adverse DOL decision. Anders then met with
Smith to discuss Truhlar’s grievances and told him
(based on the inaccurate information she received from
Intoe) that the DOL proceedings were over. Based on
his review of the Investigative Memorandum, the DOL
decision, and the U.S. Attorney’s rationale for declining
criminal charges, Smith decided that the union should
not pursue Truhlar’s grievances any further. In Septem-
ber 2005, he notified Truhlar that his grievances had
been withdrawn. With that, Anders officially terminated
Truhlar’s employment. Less than four months later, the
No. 09-1652                                             5

Employee Compensation Appeals Board reversed the
DOL’s decision. It determined that the CA-7 form “did not
reasonably put [Truhlar] on notice that he had to report
all earnings” and thus concluded that he was not
required to repay his disability earnings.
   Following the favorable outcome to his DOL appeal, and
after unsuccessfully pursuing an unfair labor practice
charge against John Grace Branch #825 with the National
Labor Relations Board, Truhlar filed the current suit.
He claimed that the Postal Service violated the CBA by
firing him without just cause and that the union breached
its duty of fair representation in connection with the
grievance proceedings. The Postal Service and John
Grace Branch #825 sought summary judgment, arguing
that Truhlar’s suit is untimely, and that even if it were
timely he could show neither that the Postal Service
breached the CBA nor that the union failed to represent
him fairly. The district court determined that the suit
was timely but that the Postal Service’s decision to fire
Truhlar was based on just cause, as the CBA defines
that term. The court granted the defendants summary
judgment without considering the question of fair repre-
sentation.
  We review de novo the district court’s grant of summary
judgment to the defendants. Nemsky v. ConocoPhillips Co.,
574 F.3d 859, 864 (7th Cir. 2009). Although national labor
policy strongly favors private over judicial resolution
of disputes arising under a CBA, Republic Steel Corp. v.
Maddox, 379 U.S. 650, 652-53 (1965), § 301 of the LMRA
allows a union member to seek relief in federal court when
6                                                   No. 09-1652

his union breaches its duty to represent him fairly,
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164
(1983).1 The idea behind § 301 is that a union member
should have judicial recourse if, during the arbitration
process, his union completely bungles (or intentionally
sabotages) an otherwise meritorious grievance. Bell v.
DaimlerChrysler Corp., 547 F.3d 796, 804 (7th Cir. 2008).
Truhlar’s hybrid claims against the union and the Postal
Service “are inextricably interdependent”; in order to
recover from either he must prevail against both.
DelCostello, 462 U.S. at 164-65 (citation omitted). In
other words, to avoid summary judgment, Truhlar
must show both that John Grace Branch #825 breached
its duty to represent him fairly in pursuing his
grievances and that the Postal Service violated the CBA.
   The district judge granted the defendants summary
judgment after concluding that the Postal Service’s deci-
sion to fire Truhlar did not violate the CBA. Because
that conclusion doomed Truhlar’s claim against the
union, the district court did not discuss whether the
union breached its duty of fair representation, although
the union sought summary judgment on the ground that
it had not. In his opening brief on appeal, Truhlar argues
that the district court incorrectly concluded that the



1
  Technically, a hybrid suit where the employer is the Postal
Service is grounded in 39 U.S.C. § 1208(b), but the law con-
struing § 301 applies to suits against the Postal Service under
§ 1208(b). See Roman v. USPS, 821 F.2d 382, 388-89 (7th Cir.
1987); Gibson v. USPS, 380 F.3d 886, 888-89 & n.1 (5th Cir. 2004).
No. 09-1652                                                   7

Postal Service complied with the CBA in firing him. In
response, the union renews its arguments that Truhlar’s
suit is untimely and that he cannot show that the union
breached its duty to represent him fairly. Yet, in his reply
brief, Truhlar addresses neither the timeliness question
nor the union’s argument on the merits. At oral argument
his counsel explained that he did not think he needed
to brief any argument he had not lost in the district
court, but it is well-established that an appellee is free
to defend a judgment based on any argument raised
before the court below. See Camp v. TNT Logistics Corp.,
553 F.3d 502, 505 (7th Cir. 2009); Wis. Cent., Ltd. v. Shannon,
539 F.3d 751, 761 (7th Cir. 2008). Just because the district
court found it unnecessary to address all of the union’s
defenses does not mean Truhlar is free to ignore them
now that the union has pressed them on appeal. See
United States v. Am. Ry. Express Co., 265 U.S. 425, 435
(1924); see also Schering Corp. v. Ill. Antibiotics Co., 89 F.3d
357, 358 (7th Cir. 1996).
  Truhlar’s silence means that he has forfeited his argu-
ments against the union, see Waypoint Aviation Servs. Inc. v.
Sandel Avionics, Inc., 469 F.3d 1071, 1073 (7th Cir. 2006), but
we reviewed his submissions in the district court to
determine whether there is a convincing response to
the union’s appellate arguments. Even assuming, as the
district court found, that the suit is timely, there is no
sound basis on which Truhlar could show that his union
breached its duty to represent him fairly during the
grievance process. A union breaches its duty of fair
representation only where its actions in pursuing a mem-
ber’s grievance are “arbitrary, discriminatory, or in bad
8                                                  No. 09-1652

faith.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67
(1991). In the district court, Truhlar argued that the union
acted arbitrarily and in bad faith because, according to
him, Smith (the union representative) did not conduct a
sufficiently thorough investigation before withdrawing
Truhlar’s grievances. In particular, he blamed Smith for
withdrawing his grievances while Truhlar’s separate
appeal from the adverse DOL decision was still pending
and for refusing to reinstate the grievances after
learning that Truhlar won his appeal from the DOL’s
decision.
  To demonstrate that the union acted arbitrarily, Truhlar
must show that “in light of the factual and legal land-
scape” at the time the union acted, its decision to
abandon his grievances was “so far outside a wide range
of reasonableness, as to be irrational.” Air Line Pilots, 499
U.S. at 67 (internal quotation omitted). That’s a high
threshold, and nothing we see in Truhlar’s papers in the
district court convinces us that he made the necessary
showing. Although it is true that the union’s duty
requires some minimal investigation into a member’s
grievance, only an investigation that reflects “an
egregious disregard for union members’ rights con-
stitutes a breach of the union’s duty.” Garcia v. Zenith
Elecs. Corp., 58 F.3d 1171, 1176 (7th Cir. 1995) (quotation
omitted). Here, before deciding to withdraw Truhlar’s
grievances, Smith met with the local postmaster, reviewed
the Postal Service’s Investigative Memorandum and
the unfavorable DOL decision, and considered the
U.S. Attorney’s rationale for declining to bring criminal
charges. Based on that information, Smith made a
No. 09-1652                                                9

rational decision to withdraw the grievances. Truhlar
argued below that with some minimal additional inves-
tigation Smith would have learned that Truhlar appealed
the DOL decision (it’s unclear why he didn’t just tell
Smith himself), but it wasn’t irrational for Smith to rely
on the information conveyed by the postmaster. Even if
Smith’s failure to verify the information could be con-
sidered negligent, more is needed to establish a breach
of the union’s fiduciary duty. See United Steelworkers of
Am. v. Rawson, 495 U.S. 362, 372-73 (1990).
  As for Smith’s decision not to reinstate the grievances,
the union points out (without rebuttal from Truhlar)
that there is no mechanism under the CBA which would
have allowed Smith unilaterally to reopen a final deci-
sion. That decision must be a mutual one between
the Postal Service and the national union, which is not a
party to this suit. We cannot find that Smith acted arbi-
trarily in failing to pursue a method of relief which
Truhlar has not shown was available.
  Nor does anything we see in the record support
Truhlar’s assertions (which, as we have noted, he sub-
mitted only to the district court) that Smith acted in bad
faith when he withdrew and later failed to reinstate
the grievances. To show bad faith Truhlar must point
to subjective evidence showing that Smith’s decisions
stemmed from an improper motive. See Nemsky, 574 F.3d at
866; Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th
Cir. 2003). Below Truhlar cited no such evidence but
instead suggested that an improper motive is the only
“reasonable explanation” for Smith’s conduct. Such
10                                           No. 09-1652

unsupported speculation is insufficient to overcome a
motion for summary judgment. Argyropoulos v. City of
Alton, 539 F.3d 724, 737 (7th Cir. 2008).
  Our role is not to decide with the benefit of hindsight
whether Smith made the right calls—we ask only whether
his decisions were made rationally and in good faith.
See Neal, 349 F.3d at 369. Our review of the undisputed
facts (in the face of Truhlar’s current silence on the
subject) convinces us that they were. Accordingly,
Truhlar’s hybrid claim cannot withstand summary judg-
ment. The judgment of the district court is A FFIRMED.




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