                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 96-3668
                                    ___________

Wardell Carter,                     *
                                    *
           Appellant,               *
                                    * Appeal from the United States District
      v.                            * Court for the Eastern District of
                                    * Missouri.
Ford Motor Co.; David Dunaway,      *
                                    *
           Appellees.               *
                               ___________

                                 Submitted: May 21, 1997
                                     Filed: July 28, 1997
                                   ___________

Before BEAM, FRIEDMAN,1 and LOKEN Circuit Judges.
                            ___________

BEAM, Circuit Judge.

       Wardell Carter sued Ford Motor Company alleging that in discharging him, Ford
violated the Family Medical Leave Act, breached its collective bargaining agreement,
intentionally discriminated against him because of his race, and committed various state
law torts. The district court2 granted Ford's motion for summary judgment. Carter
appeals and we affirm.


      1
       The Honorable Daniel M. Friedman, United States Circuit Judge for the Federal
Circuit, sitting by designation.
      2
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
I. BACKGROUND

      Carter began working for Ford Motor Company in 1988. He was a member of
the United Auto Workers (UAW) Local 325 and the UAW International, and was
covered by the union's collective bargaining agreement with Ford. He was discharged
on March 3, 1994.

        Plaintiff's last day of work was February 15, 1994. The following day, Stephanie
Carter, the plaintiff's wife and also a Ford employee, telephoned the plant's labor
relations office (LRO) to inform them that she was sick and that she and her husband
were going to be "out" because of family problems. Two days later, Carter's doctor
diagnosed him as suffering from anxiety and depression and concluded that he was
totally disabled. On February 21, Carter called the LRO himself and reported that he
would be out sick. When asked what the problem was, Carter stated that "it was
personal." When asked when he would return to work, Carter said that he did not
know. On February 25, Carter again called the LRO to inform Ford that he was still
sick, but did not request medical leave at that time.

       That same day, Carter received a "five-day" letter instructing him to report for
work or provide a reason justifying his continued absence within five days from the
date of the letter. The letter warned that failure to comply would result in Carter's
termination. In response, Carter went to the Ford plant on February 28 and informed
the LRO representative that he was requesting sick leave. At this time, the LRO
representative gave Carter a form for his attending physician to fill out as soon as
possible to explain his need for sick leave. Although Carter's physician completed the
form on March 2, Carter did not return the form at that time. Carter blames the delay
on the LRO representative's alleged assurances that Carter was covered on medical
leave and that, therefore, there was no hurry on the paperwork.




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       Carter claims that on March 2, Stephanie telephoned the LRO to inform them
that she would soon deliver her husband's medical papers substantiating his need for
medical leave. Stephanie spoke with David Dunaway who allegedly told her that there
was no need to bring in the paperwork as Carter had already been fired. Carter alleged
that because of Dunaway's statement, he did not submit proper medical documentation
to justify his absence. On March 3, Ford discharged Carter for failing to satisfy the
five-day letter that it claims expired at 12:00 p.m. on March 2. Soon thereafter, Carter
contacted his Local 325 to begin the grievance process.

       The UAW filed a timely grievance to contest Carter's termination. However,
Carter's discharge was found to have been proper under the collective bargaining
agreement, a section of which provides that seniority will be broken for failure to reply
to a five-day letter. The union appealed the denial of Carter's grievance, but later
withdrew the appeal without prejudice. Carter was informed of the withdrawal and told
to contact his union representative with any questions regarding the disposition. Carter
claims Ford fabricated evidence so that the UAW would withdraw his grievance. He
also claims that he was never informed of his right to appeal the withdrawal. He
concedes, however, that he neither inquired about an appeals process nor appealed
within the allotted time.

       Carter filed this action,3 alleging that in discharging him, Ford: (1) violated the
Family and Medical Leave Act (FMLA) by terminating him after he requested extended
medical leave due to his illness; (2) breached the Ford-UAW collective bargaining
agreement in violation of section 301 of the Labor Management Relations Act by not
arbitrating his termination in good faith; (3) violated Missouri's service letter statute;
and (4) violated 42 U.S.C. § 1981 by terminating him based on his race. Carter also


      3
        Carter's complaint also alleged numerous causes of action on behalf of his wife.
Carter later stipulated to the dismissal of those claims and that dismissal is not before
us in this appeal.

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alleges that both Ford and Dunaway intentionally inflicted emotional distress upon him
and fraudulently or negligently misrepresented facts relating to his termination. The
district court granted Ford's motion for summary judgment.4 Carter appeals.

II. DISCUSSION

      Summary judgment is proper only when no genuine issue of material fact is
present and judgment should be awarded to the movant as a matter of law. Yowell v.
Combs, 89 F.3d 542, 544 (8th Cir. 1996). We review the entry of summary judgment
de novo, giving the nonmoving party the benefit of every reasonable inference drawn
from the evidence. Id.

       We first address Carter's claims under the FMLA. The FMLA allows covered
employees to take medical leave for serious health conditions and protects their right,
on their return, to be placed in the same or an equivalent position. 29 U.S.C. §§
2612(a)(1)(D); 2614(a). FMLA regulations require employees to provide adequate
notice to their employers of the need to take leave. See 29 C.F.R. §§ 825.302-.303.
In situations where the need for leave unexpectedly arises, the employee is to give
notice "as soon as practicable." Id. at § 825.303(a). Generally, this means no more
than two days after learning of the need for the leave. Id.

      Assuming Carter had a "serious health condition" within the meaning of the act,
a doubtful proposition on these facts,5 he never gave Ford adequate notice of his need

      4
       The district court found that a genuine issue of material fact existed as to
whether Ford violated the Missouri service letter statute. However, because the district
court granted summary judgment as to all of Carter's federal claims, it declined to
exercise supplemental jurisdiction over this state law claim. This ruling has not been
challenged in this appeal.
      5
       For instance, despite the diagnosis of total disability, Carter worked at least 7.5
hours each weekday, in an unrelated position at a local clinic, from February 15 to

                                           -4-
to take leave due to that illness. As the facts show, Stephanie told Ford that she was
sick and that she and her husband would be out for awhile. Carter himself later
informed the LRO that he would be out, but offered no further information and stated
that he did not know when he would return. This purported notice was neither
adequate nor timely under the FMLA. Id. at §§ 825.302(c); .303. Therefore, the
district court correctly granted summary judgment as to this count.

       Carter's claim under section 301 of the Labor Management Relations Act fails
because he neither exhausted the available internal grievance procedures nor alleged
that the union breached its duty of fair representation. See, e.g., DelCostello v.
International Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983) (exhaustion requirement
can be excused where union breaches its duty of fair representation to member); Vaca
v. Sipes, 386 U.S. 171, 186 (1967) (employee must allege both that the employer
committed a labor violation and that the union violated its duty of fair representation
to prevail in a section 301 suit on own behalf). Even if Carter had alleged a breach of
the union's duty of fair representation, his claim would still fail on these facts.

       A union is granted broad latitude in dealing with its members and its
performance is viewed in a highly deferential light. Air Line Pilots Ass'n, Int'l v.
O'Neill, 499 U.S. 65, 78 (1991). A breach of the duty of fair representation occurs only
when a union's conduct is "arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S.
at 190. A review of the facts of this case shows that the union did not breach its duty
of fair representation. After his termination, Carter filed a grievance, which was denied
by Ford. The union appealed that denial but later withdrew the appeal. Carter was
informed of the withdrawal and instructed to contact his union representative with any
questions about the withdrawal. He did not contact the representative or appeal the
decision on his own, as was his right. Because his failure to request further action


March 22, 1994. The period between February 15 and March 3 overlaps the time of
Carter's absence from, but continued employment with, Ford.

                                          -5-
cannot be attributed to the union, Carter's allegations simply do not raise a genuine
issue of material fact as to whether the UAW breached its duty of fair representation.
Consequently, the district court correctly granted summary judgment as to this claim.

        The district court found that Carter's state law tort claims alleging intentional
infliction of emotional distress and fraudulent/negligent misrepresentation were
preempted by section 301 of the Labor Management Relations Act. Section 301
preempts state law tort claims where the resolution of the claim is substantially
dependent upon an analysis of the terms or provisions of a collective bargaining
agreement. Livadas v. Bradshaw, 512 U.S. 107, 124-25 (1994); Luecke v. Schnucks
Markets, Inc., 85 F.3d 356, 358-59 (8th Cir.), cert. denied, 117 S. Ct. 517 (1996). In
this case, a determination on the merits of these state law tort claims would require the
court to determine whether Carter's discharge was warranted under the terms of the
collective bargaining agreement. Consequently, the district court correctly found that
the claims are preempted by section 301. See Johnson v. Anheuser Busch, Inc., 876
F.2d 620, 624 (8th Cir. 1989).

       Finally, we agree with the district court's conclusion that Carter's proffered
evidence of race discrimination on his 42 U.S.C. § 1981 claim failed to raise the
necessary inference that he was terminated on the basis of his race. Accordingly, we
affirm as to that issue on the basis of the district court's well-reasoned opinion. See 8th
Cir. R. 47B. We have considered the remainder of Carter's arguments and find them
to be without merit.

III. CONCLUSION

      Finding no error in the district court's grant of summary judgment in favor of
Ford, we affirm.




                                           -6-
A true copy.

      ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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