10-3572-cv
Messina v. 1199 SEIU United Healthcare

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31st day of October, two thousand eleven.

PRESENT:
             AMALYA L. KEARSE,
             PIERRE N. LEVAL,
             DENNY CHIN,
                            Circuit Judges.
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SONDRA MESSINA,
          Plaintiff-Appellant,

                    -v.-                                           10-3572-cv

1199 SEIU UNITED HEALTHCARE WORKERS EAST,
NORTH SHORE LONG ISLAND JEWISH MEDICAL CENTER,
AND JOHN DOE,
          Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:                 JASON LOUIS ABELOVE, Law Offices of
                                         Jason L. Abelove, Garden City, New
                                         York.



FOR DEFENDANTS-APPELLEES:                RICHARD LEE DORN, Levy Ratner,
                                         P.C., New York, New York, for 1199
                                         SEIU United Healthcare Workers
                                         East.

                                         MICHAEL JOSEPH VOLPE, Venable LLP,
                                         New York, New York, for North Shore
                                         Long Island Jewish Medical Center.
           Appeal from the United States District Court for the

Eastern District of New York (Wall, Magistrate Judge).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

           Plaintiff-appellant Sondra Messina appeals from the

district court's judgment entered on August 11, 2010, granting

judgment to defendants, 1199 SEIU United Healthcare Workers East

(the "Union") and North Shore Long Island Jewish Medical Center

("LIJ").   Judgment was entered following the district court's

entry of an order on August 9, 2010, granting defendants' motions

for summary judgment.   We assume the parties' familiarity with

the underlying facts and procedural history of the case, which we

reference only as necessary to explain our decision.

           We review an order granting summary judgment de novo to

determine whether the district court properly concluded that

there were no genuine issues of material fact and the moving

party was entitled to judgment as a matter of law.   See Miller v.

Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

"In determining whether there are genuine issues of material

fact, we are required to resolve all ambiguities and draw all

permissible factual inferences in favor of the party against whom

summary judgment is sought."   Terry v. Ashcroft, 336 F.3d 128,
137 (2d Cir. 2003) (internal quotation marks omitted).   After

reviewing the record, we conclude, for substantially the reasons

set forth by the district court, that defendants were entitled to

summary judgment.


                                -2-
             Messina was employed by LIJ for 42 years, most recently
as a laboratory technologist.     She was a member of the Union and
a Union delegate.     On September 25, 2006, Messina submitted a

retirement notice, with an effective date of October 20, 2006.
Messina rescinded her retirement notice, prior to its effective
date, and LIJ accepted her rescission.      Approximately one year
later, on September 24, 2007, Messina submitted a second
retirement notice, with an effective date of October 19, 2007.
On September 25 and 26, 2007, Messina attempted to rescind her
second retirement notice.     Her rescission was declined.    Messina

and the Union filed a grievance with LIJ on October 9, 2007, for
refusing to let her rescind her retirement notice.    The grievance
was denied on October 31, 2007.    On November 19, 2007, the Union
informed Messina that it had decided not to arbitrate her
grievance.    Union official Steven Kramer testified that the Union
reached this decision in part because it believed that arbitration
would not result in Messina's reinstatement.    Messina appealed to
the Union's Division Board, which affirmed on June 18, 2008.
             On September 18, 2008, Messina filed a hybrid suit
alleging: (1) the Union's breach of the duty of fair representation
("DFR"); and (2) the Union and LIJ's breach of a collective
bargaining agreement under § 301 of the Labor Management Relations
Act, 29 U.S.C. § 185.    On August 9, 2010, the district court
granted defendants' summary judgment motions, finding that Messina
failed to show that the Union had acted in an arbitrary,
discriminatory, or bad faith manner.    Messina filed a timely notice
of appeal.


                                  -3-
           To establish a hybrid § 301/DFR claim, a plaintiff must
prove that: (1) the union breached its DFR; and (2) the employer
breached a collective bargaining agreement.    White v. White Rose
Food, 237 F.3d 174, 178-79 (2d Cir. 2001) (citing   DelCostello v.
Int'l Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983)).
           A union breaches its DFR when its conduct is arbitrary,
discriminatory, or in bad faith, Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 44 (1998), and there is a causal connection
between its wrongful conduct and the plaintiff's injuries,
Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d
Cir. 1998).   "A union's actions are arbitrary only if, in light
of the factual and legal landscape at the time of the union's
actions, the union's behavior is so far outside a 'wide range of
reasonableness,' as to be irrational."    Id. at 129 (quoting Air
Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991))
(other internal quotation marks omitted).     "This 'wide range of
reasonableness' gives the union room to make discretionary
decisions and choices, even if those judgments are ultimately
wrong."   Marquez, 525 U.S. at 45-46.    A union's actions are in
bad faith if they are fraudulent, deceitful, or dishonest.     Sim
v. New York Mailers' Union No. 6, 166 F.3d 465, 472 (2d Cir.
1999).
           A union's DFR is not breached where the union fails to
process a meritless grievance, fails to process a grievance due
to error in evaluating its merits, Cruz v. Local Union No. 3,
34 F.3d 1148, 1153-54 (2d Cir. 1994), engages in mere negligent
conduct or errors in judgment, Barr v. United Parcel Serv., Inc.,
868 F.2d 36, 43-44 (2d Cir. 1989), or decides not to arbitrate a

                                -4-
grievance, see Vaca v. Sipes, 386 U.S. 171, 191-92 (1967)
(finding individual employee does not have "absolute right" to
arbitration and discussing negative consequences of system where
individuals could compel arbitration).
               Here, Messina is unable to show that the Union's
decision not to arbitrate her grievance was arbitrary or in bad
faith.1       First, the Union advanced several reasons for its
decision, including: Messina's loss in the grievance process;
Messina's history of resignation and rescission; LIJ's informing
Kramer, after Messina's first resignation and rescission, that
LIJ would not again accept such a rescission; legal advice that
arbitrators had ruled against unions in similar circumstances;
the fact that the Union has approximately 300,000 members and
cannot arbitrate each case that arises; and the Union's
continuing relationship with LIJ.         These reasons were well-
founded, and hence the Union's decision was not arbitrary.
               Second, Messina, as the district court observed, was
unable to specify "facts that support a finding of fraud,
dishonesty, intentionally misleading conduct or any other
behavior that would lead to a finding of bad faith."         The
decision not to arbitrate does not, by itself, constitute bad
faith.    As Messina was unable to present any concrete evidence
that would create a triable issue of fact as to whether the Union
breached its DFR, summary judgment for defendants was warranted.




          1
            Messina does not argue on this appeal that the
  Union's decision was discriminatory.

                                    -5-
          We have considered Messina's other arguments and
conclude they are without merit.        Accordingly, the judgment of
the district court is AFFIRMED.
                              FOR THE COURT:
                              CATHERINE O'HAGAN WOLFE, CLERK




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