                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


FREDERICK A. MARTIN,                   
               Plaintiff-Appellant,
                 v.
JOHN E. POTTER, Postmaster General,             No. 02-1981
U.S. Postal Service; UNITED STATES
POSTAL SERVICE; NATIONAL POSTAL
MAILHANDLERS UNION, Local 334,
               Defendants-Appellees.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
            Matthew J. Perry, Jr., Senior District Judge.
                             (CA-00-807)

                      Submitted: May 13, 2003

                      Decided: May 23, 2003

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Eleazer R. Carter, THE CARTER LAW FIRM, Columbia, South Car-
olina, for Appellant. J. Strom Thurmond, Jr., United States Attorney,
Frances C. Trapp, Assistant United States Attorney, Columbia, South
Carolina; Herbert E. Buhl, III, Columbia, South Carolina, for Appel-
lees.
2                         MARTIN v. POTTER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Frederick A. Martin filed this civil action alleging that the United
States Postal Service ("USPS") terminated his employment without
just cause and that the National Postal Mail Handler’s Union Local
334 (the "Union") did not provide him with adequate representation
during the grievance process, in violation of 39 U.S.C. § 1208(b)
(2000), and 28 U.S.C. § 2201 (2000). Specifically, Martin advanced
claims for wrongful termination against USPS, for breach of fair rep-
resentation against the Union, and for declaratory judgment in the
alternative, against both Defendants.

   The USPS filed a motion to dismiss, or in the alternative for sum-
mary judgment, and the Union filed a motion for summary judgment,
which motions were referred to a magistrate judge who recommended
granting summary judgment against Martin. Following consideration
of Martin’s objections, the district court granted summary judgment
in favor of USPS and the Union. Martin appeals, claiming the district
court erred in granting summary judgment because there existed gen-
uine issues of material fact that the Union: (1) failed to investigate
and provide medical documentation to support Martin’s claim that his
attendance problems were medically related to his employment; (2)
failed to negotiate more favorable terms for him under the Last
Chance Agreement under which Martin’s job was offered back to
him; and (3) was required to accept the USPS’s offer to give him his
job back, notwithstanding his repudiation of the Last Chance Agree-
ment. For the reasons that follow, we affirm the district court’s grant
of summary judgment and dismissal of Martin’s case.

  The facts in this case are not in dispute. Martin was hired by the
USPS as a letter carrier, and became a dues paying member of the
Union, the exclusive bargaining representative of all employees in
Martin’s unit. Between October 1997 and June 1999, the USPS cited
                            MARTIN v. POTTER                             3
Martin for forty (40) unscheduled sick leave absences, for committing
an unsafe act (striking a fellow employee with a forklift), and for sex-
ual harassment. On June 28, 1999, Martin received a letter notifying
him that he was recommended for termination. As required by the
collective bargaining agreement between the USPS and the Union
(the "Agreement"), they entered into negotiations in an attempt to
resolve the dispute concerning Martin. The Agreement establishes a
three-step process for addressing employee grievances. The Union
appointed representatives to represent Martin in grieving the Notice
of Proposed Removal and any subsequent removal action taken by the
USPS.

   While his step three application was still pending, the USPS and
the Union, on behalf of Martin, entered into a written, full and final
settlement (the "Last Chance Agreement") of the grievance. Martin
repudiated the Last Chance Agreement, and on July 26, 1999, the
USPS terminated Martin effective August 6, 1999. Martin exhausted
his administrative remedies, received a right to sue letter from the
Equal Employment Opportunity Commission, and filed the present
lawsuit, a "hybrid" breach of contract/breach of the duty of fair repre-
sentation action.

   The magistrate judge thoroughly reviewed the facts and each of
Martin’s claims before concluding, inter alia, that Martin failed to
present any evidence of dishonesty or bad faith on the part of the
Union, and further failed to demonstrate that the Union’s conduct was
arbitrary or perfunctory.1 In its order granting summary judgment in
  1
   Specifically, the magistrate judge observed that: (1) the proper Union
official reviewed and concurred in all disciplinary actions directed
toward Martin; (2) Martin failed to provide any medical records to the
Union to support his claims that his absences were medically related to
job-related depression, stress, and anxiety; (3) the Union filed step two
grievances, and proceeded to step three of the process on Martin’s
behalf, and negotiated a Last Chance Agreement for Martin to return to
his job; (4) there was no evidence that the Union caused Martin to lose
his step four rights by claiming a veteran preference; (5) Martin failed
to demonstrate that any statement made by the Union was prejudicial or
a breach of the duty of fair representation; (6) Martin was presented with,
and refused to sign, the Last Chance Agreement; (7) the terms of the Last
4                          MARTIN v. POTTER
favor of the Union and the USPS, the district court specifically held
that, even in the light most favorable to Martin, Martin failed to estab-
lish any breach of the Union’s duty of fair representation given that
the Union pursued a grievance on behalf of Martin to the step three
stage and was able to negotiate a settlement agreement with the USPS
that would have allowed Martin to keep his job.

   This court reviews an award of summary judgment de novo. Hig-
gins v. E. I. Dupont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate when there is no genuine
issue of material fact, given the parties’ respective burdens of proof
at trial. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-49 (1986). In determining whether the moving party
has shown there is no genuine issue of material fact, a court must
assess the factual evidence and all inferences to be drawn therefrom
in the light most favorable to the non-moving party. Id. at 255; Smith
v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996).

   For Martin to prevail on the merits against either the USPS or the
Union, he must prove both: (1) that the Union breached its duty of fair
representation; and (2) that the USPS violated the collective bargain-
ing agreement. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151,
164-65 (1983). While both claims are brought in one suit, a cause of
action will only lie against an employer if the union has breached its
duty of fair representation of the employee. Amburgey v. Consolida-
tion Coal Co., 923 F.2d 27, 29 (4th Cir. 1991). Hence, federal court
review of allegations against employers for breach of collective bar-
gaining agreements is called for only when an employee has first
proved that the Union representing him breached its duty of fair rep-
resentation. Vaca v. Sipes, 386 U.S. 171, 186 (1967); Thompson v.
Aluminum Co. of Am., 276 F.3d 651, 656-57 (4th Cir. 2002). To
establish a breach of the duty of fair representation, Martin must dem-

Chance Agreement were non-negotiable; and (8) Martin failed to present
any evidence that he was incompetent at the time. The magistrate judge
further observed that Martin failed to show that the USPS did not have
just cause for terminating him, finding that Martin did not submit any
medical information to explain his absences and did not dispute the
absences.
                           MARTIN v. POTTER                            5
onstrate that the Union’s conduct toward him was dishonest, arbitrary,
discriminatory, or in bad faith. Vaca, 386 U.S. at 190. To be arbitrary,
a union’s conduct toward its member must be so far outside a wide
range of reasonableness as to be wholly irrational, and examination
of a Union’s performance must be highly deferential to allow unions
ample latitude in the performance of their representative duties. Air
Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991); see also United
Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362,
374 (1990). Similarly, to sustain a bad faith claim, a plaintiff must
produce evidence that the union’s conduct was grossly deficient. Ash
v. United Parcel Serv., Inc., 800 F.2d 409, 411 (4th Cir. 1986).

   Martin’s first claim of breach by the Union of its duty of fair repre-
sentation is that the Union failed to investigate and provide medical
documentation to the USPS to support Martin’s claims that his atten-
dance problems were medically related to his job-related depression,
stress, and anxiety. The record is clear that it was only after receiving
his Notice of Proposed Removal that Martin for the first time sought
counseling from a licensed social worker through the Postal Service’s
Employee Assistance Program, and sought medication from his phy-
sician for depression.2 There is no documentation that Martin suffered
from any depression, stress, or anxiety-related illness prior to June 28,
1999, the date of his Letter of Proposed Removal. In short, we find
that the Union cannot be said to have breached its duty of fair repre-
sentation to produce medical records that did not exist to support a
claimed medical condition for which no medical treatment was ever
sought. Summary judgment was proper on this claim.

   Martin’s second claim on appeal is that a genuine issue of material
fact existed that the Union breached its duty of fair representation
  2
    Between January 1996 and June 1999 Martin sought treatment from
Dr. McElmurray on more than a dozen occasions. During that same time,
Martin was tardy or missed work more than forty times. Yet Dr. McEl-
murray’s records fail to mention any depression or other chronic condi-
tion which could explain Martin’s attendance record. In addition, Martin
testified he went to the doctor whenever he believed he needed medical
care, and testified that the produced records of Dr. McElmurray and Mr.
Winstead, the social worker, constituted all his medical records that
existed for the five years prior to the trial.
6                           MARTIN v. POTTER
when it failed to negotiate more favorable terms in the Last Chance
Agreement.3 While Martin is correct that his Union representative
admitted that he did not do anything to negotiate changes to the Last
Chance Agreement to reflect more favorable terms to Martin, the fact
that USPS officials maintained that the terms of the Last Chance
Agreement were not negotiable establishes that even if the Union had
attempted to negotiate further concessions, the result would have been
the same. Moreover, the Union successfully negotiated Martin’s job
back despite his poor attendance record and other employment prob-
lems. Given these undisputed facts, we find that the district court cor-
rectly determined that Martin failed to establish any breach of duty by
the Union relative to the terms of the Last Chance Agreement.

   Martin also claims that the Union was required to accept the
USPS’s offer to give Martin back his job when Martin repudiated the
Last Chance Agreement. There is no genuine issue of material fact
contrary to the facts that the Union negotiated Martin’s job back, and
that Martin repudiated the Last Chance Agreement, which provided
the terms under which his job was available to him. Neither the
Union, nor the USPS, could accept, implement, or otherwise place the
Last Chance Agreement into effect without Martin’s cooperation. The
USPS would not accept Martin back into his job without a valid Last
Chance Agreement in place. Martin’s refusal to return to work under
the terms of the Last Chance Agreement resulted in the final loss of
his job.

   Moreover, we find specious Martin’s allegation that the Union
breached its duty of fair representation because the USPS failed to
implement the Step Three Settlement Agreement. The substance of
the agreement reached at step three between the Union and the USPS
was to send Martin’s grievance back to the local level for final settle-
    3
    The terms of the Last Chance Agreement provide, in pertinent part,
that for a period of two years Martin agrees to: (1) enroll and satisfacto-
rily participate in a structured Employee Assistance Program ("EAP");
(2) sign a medical release for the EAP counselor; (3) allow monthly EAP
reports to be forwarded to his manager; (4) maintain satisfactory atten-
dance, defined as no more than three unscheduled absences from work
during any six-month period; and (5) substance abuse testing, should the
USPS determine that such is necessary.
                         MARTIN v. POTTER                          7
ment, and the Last Chance Agreement was the result of that action,
and constituted the terms under which Martin could return to work.
Accordingly, there was no offer of employment made to Martin under
the Step Three Settlement Agreement, and consequently, there was no
breach of any duty by the Union relative to the Step Three Settlement
Agreement.

   Given that Martin failed to establish a breach by the Union of its
duty of fair representation, his claims fail and we will not review
Martin’s assertions that the USPS breached the collective bargaining
agreement. Vaca, 386 U.S. at 186; Thompson, 276 F.3d at 657.
Accordingly, we affirm the district court’s order granting the motion
for summary judgment in favor of the Union and the USPS. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument
would not aid the decisional process.

                                                        AFFIRMED
