                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 10-2342
                                   ___________

                                  BRENTON LEE,
                                            Appellant

                                         v.

                               NJ TRANSIT;
                 AMALGAMATED TRANSIT UNION LOCAL 825
                   ____________________________________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 08-cv-05972)
                   District Judge: Honorable Dennis M. Cavanaugh
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 15, 2011

             Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

                          (Opinion filed: March 17, 2011 )

                                   ___________

                                    OPINION
                                   ___________

PER CURIAM

      Brenton Lee appeals the District Court’s order granting Appellees’ motions for

summary judgment. For the reasons below, we will affirm.



                                         1
       The procedural history of this case and the details of Lee’s claims are well known

to the parties, set forth in the District Court’s thorough opinion, and need not be

discussed at length. Briefly, Lee filed a complaint in which he alleged that New Jersey

Transit terminated him on the basis of his national origin. He also claimed in his

pleadings that the Union arbitrarily refused to take his case to arbitration and withdrew an

offer of reinstatement. After the District Court granted Appellees’ motions for summary

judgment, Lee filed a notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the

District Court’s order granting Appellees’ motion for summary judgment. Gallo v. City

of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). A grant of summary judgment will be

affirmed if our review reveals that “there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2009) (amended Dec. 1, 2010). We review the facts in a light most favorable to the

party against whom summary judgment was entered. See Coolspring Stone Supply, Inc.

v. American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993).

       On appeal, Lee disputes the facts surrounding the accident which led to his

termination. However, the issue is not whether Lee left the scene of an accident; the

question is whether there are disputed material facts with respect to whether Appellee

New Jersey Transit’s reasons for terminating Lee were discriminatory.            The only

evidence Lee provides to support his claim of discrimination is his allegation that another

employee referred to Lee’s “black ass.” As noted by the District Court, Lee agreed at his

deposition that his termination had nothing to do with his nationality and more to do with

                                             2
his personality. We agree with the District Court that Lee has not made a prima facie

claim of discrimination on the basis of national origin. Moreover, from the evidence in

the record, it is abundantly clear that an accident occurred and that Lee left the scene.

This supports NJ Transit’s assertion that Lee was terminated for leaving the scene of an

accident.

       Lee contends that the Union’s acts of withdrawing an offer of reinstatement and

declining to file a grievance with respect to his termination were arbitrary. The Union

argues that Lee’s claim of a violation of the duty of fair representation was untimely

because it was not filed within six months of the alleged violation. See DelCostello v.

Int’l Bhd. of Teamsters, 462 U.S. 151 (1983). Lee does not dispute that his claim was

subject to a six-month statute of limitations. Rather, he argues that there are material

issues of fact regarding when it became clear that further union appeals were futile.

However, he points to no facts which would support a finding that the statute of

limitations did not begin to run until sometime after June 2008, six months before he filed

his complaint in December 2008.1 Moreover, even if the claim were timely, Lee has not

shown that any of the Union’s actions regarding his case were arbitrary, discriminatory or

done in bad faith.




       1
         In July 2007, Lee was informed that the Union had decided not to arbitrate his
       case. App. at 59a. At his deposition, Lee stated that he lost faith in the Union
       when they denied arbitration for his case. App. at 124a. Thus, it appears that after
       the denial of arbitration, over a year before he filed his complaint, he believed that
       further union appeals were futile.
                                             3
For the above reasons, we will affirm the District Court’s judgment.2




2
   Lee argues that his due process rights were violated by the District Court’s
order. He contends that he has a property interest in his reputation and his
profession. However, Lee was given notice of the appellees’ motions for
summary judgment and an opportunity to respond. Thus, there was no violation of
due process.
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