                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 98-3853
                                 ___________

John M. Marthaler,                     *
                                       *
            Appellant,                 *
                                       *
      v.                               * Appeal from the United States District
                                       * Court for the District of Minnesota.
Northern States Power Company, a       *
Minnesota Corporation; International   * [UNPUBLISHED]
Brotherhood of Electrical Workers,     *
Local 160,                             *
                                       *
            Appellees.                 *
                                  ___________

                            Submitted: June 16, 1999

                                Filed: July 9, 1999
                                 ___________

Before RICHARD S. ARNOLD and ROSS, Circuit Judges, and BYRNE,1 District
      Judge.
                          ___________

PER CURIAM.




      1
        The Honorable Wm. Matthew Byrne, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.
      John M. Marthaler appeals from a judgment of the district court2 granting
summary judgment in favor of his former employer, Northern States Power Company
(NSP), and his former union, International Brotherhood of Electrical Workers, Local
160, on his claims of disability discrimination and breach of the duty of fair
representation. We affirm.

       The district court doubted that Marthaler was disabled, but for the purposes of
summary judgment assumed he was. However, the court held that NSP terminated
Marthaler for a legitimate, nondiscriminatory reason and he failed to present sufficient
evidence showing the reason was a pretext for discrimination. The court did not err.
On November 10, 1995, Marthaler was placed on suspension pending an investigation
of reports that he had been seen lying down in a supervisor's truck during work hours,
had been insubordinate, and had left a threatening telephone message for a co-worker.
On November 15, 1995, Marthaler entered a mental health facility and was discharged
a month later with a diagnosis of bipolar disorder. Following an investigation which
began shortly after the suspension, on December 18, 1995, NSP terminated Marthaler
for misconduct. Contrary to Marthaler's suggestion, in the circumstances of this case,
the fact that Marthaler's "discharge was effectuated after [his] hospitalization . . . does
not preclude the grant of summary judgment." Wilking v. County of Ramsey, 153 F.3d
869, 874 (8th Cir. 1998); see also Christopher v. Adam's Mark Hotels, 137 F.3d 1069,
1073 (8th Cir.) ("[m]ere knowledge of a disability cannot be sufficient to show
pretext"), cert. denied, 119 S. Ct. 62 (1998).




      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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       In addition, the district court did not err in holding that Marthaler failed to
present sufficient evidence showing that the union breached its duty of fair
representation. After a two-day hearing, an arbitrator upheld the termination. At the
hearing, among other things, Marthaler's union-provided counsel introduced his medical
records and copies of medical treatises. Counsel also submitted a thirty-two page post-
hearing brief. Marthaler's assertion that counsel should have called medical witnesses
instead of relying on documentary evidence is a mere disagreement with a tactical
decision.

      Finding no error of law or fact, we affirm on the basis of the district court's well-
reasoned opinion. See 8th Cir. R. 47B.

      A true copy.

             Attest:

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




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