                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 25 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    PATRICK RIVERA,

                Plaintiff - Appellant,

    v.                                                  No. 01-2270
                                                 D.C. No. CV-00-125 LH/DJS
    BERNALILLO COUNTY; JUAN                           (D. New Mexico)
    VIGIL, County Manager; ART
    DELACRUZ, Director; AFSCME
    COUNCIL 18; JOE CHAVEZ,
    Council President; AMANDA M.
    VESEY, Council Representative;
    AFSCME LOCAL 1461; TOM CRUZ,
    Local President,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Patrick Rivera appeals from the dismissal of a claim against defendant

AFSCME (his labor union) and its employees for breach of the duty of fair

representation implied under the National Labor Relations Act, and from summary

judgment in favor of the Union and the Bernalillo County defendants on his claim

for violation of procedural due process brought under 42 U.S.C. § 1983. Both

claims arise from his termination as a tenured county employee. We conclude

that, because he alleged only negligent or inept conduct on the part of the Union,

Mr. Rivera failed to state a claim for breach of the duty of fair representation.

We further conclude that Mr. Rivera received sufficient substantive and

procedural due process through pre-termination hearings such that summary

judgment was properly granted on his procedural due process claims.


                                I. Background facts

      Mr. Rivera, a union member, was terminated from his tenured county

position after defendant Art DeLaCruz, the director of his department, determined

that he (1) had failed to secure a chain saw in his truck or to park the truck in

a place where he could see it (resulting in the apparent theft of the chain saw);

(2) had been insubordinate during the investigation of the chain-saw loss and

“less than forthcoming” in his responses to questions about his work activity,

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locations, and routes traveled before and after the chain saw was discovered

missing; and (3) had previously been suspended for providing inconsistent

information during an investigation for being out of his assigned work location.

Aplt. App., Vol II at 293-94. Mr. Rivera received written notice and a

pre-determination hearing in which he had the opportunity to present testimony

and evidence objecting to his termination on these grounds.          See id. at 291-92.

After his termination, Mr. Rivera presented a letter to Mr. DeLaCruz stating that

he was “filing a grievance on the termination letter” he received.        Id. at 295. The

County’s grievance procedure is set forth in a collective bargaining agreement

negotiated between the Union and the County. During negotiations conducted

shortly after his termination, the Union obtained a compromise with the County

whereby Mr. Rivera’s termination would be reduced to a ten-day suspension if

Mr. Rivera offered testimony concerning an attack by a co-worker, but Mr. Rivera

rejected the compromise.

       Through the collective bargaining agreement, the County also provided

post-termination hearings before an independent hearing officer. Those grievance

procedures required written requests for post-termination grievance hearings be

sent to the county manager within ten days of the receipt of the termination letter.

The procedures also provided that “[f]ailure . . . to meet the requirements in the

grievance procedure will mean adjudication of the matter in the other’s respective


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favor at that point in the grievance.”      Id. Vol. I at 35C. Mr. Rivera concedes that

his grievance notification did not meet the procedural requirements. On motion

by the County, the hearing officer assigned to hear the post-termination

proceeding determined that Mr. Rivera’s failure to technically comply with the

procedural requirements should result in adjudication of the grievance in favor of

the County pursuant to the bargaining agreement, and so ruled. Mr. Rivera then

filed this federal suit.


                                         II. Discussion

       A. Dismissal of the breach of fair representation claim.           In his

complaint, Mr. Rivera alleged that the Union negligently breached its duty of fair

representation by (1) failing to competently represent him; (2) acting with the

County to deny him a fair hearing; (3) not providing him with an attorney, and

(4) failing to present competent legal argument in response to the County’s

motion to dismiss the post-termination grievance. Aplt. App., Vol. I at 10.

In response to the Union’s motion to dismiss for failure to state a claim,

Mr. Rivera characterized the basis of his claims as a “hybrid” action, which

the district court construed as an action brought against the County under section

301 of the Labor Management Relations Act (LMRA), 29 U.S.C § 185, and an

“inextricably interdependent” action against the Union for breach of the duty of

fair representation implied under the National Labor Relations Act. Aplt. App.,

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Vol. I at 71. The LMRA specifically does not apply to states or their political

subdivisions. 29 U.S.C. §§ 142(3), 152(2). Because Mr. Rivera could not sue the

County under the LMRA, the district court concluded that he could not state

a claim for breach of the duty of fair representation. Aplt. App., Vol. I at 72-73.

       On appeal, Mr. Rivera argues that the Union’s duty of fair representation

arises from its status as the exclusive bargaining representative for employees,

and that the district court erred in dismissing his claim because the LMRA does

not preclude claims arising from employment and union representation in the

public sector. He argues that, because we have applied the duty of fair

representation of private sector workers under the LMRA to unions representing

federal employees, see Pham v. Am. Fed’n of Gov’t Employees         , 799 F.2d 634, 639

(10th Cir. 1986), as a matter of first impression, we should hold that the same

duty applies to unions representing state employees.

       We review the court’s dismissal de novo, accepting “all well-pleaded

factual allegations . . . as true,” and affirming only if “it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would

entitled him to relief.”   Sutton v. Utah State Sch. for Deaf & Blind   , 173 F.3d

1226, 1236 (10th Cir. 1999) (quotations omitted). We need not reach the

first-impression issue in this case, however, because we can affirm the district




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court on other grounds that are supported by the record.        See United States v.

Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994).

       Mr. Rivera claims on appeal that the Union breached its duty to timely file

a grievance on his termination with the proper County official, thus depriving him

of his right to the post-termination hearing. Mr. Rivera points to no provision in

the collective bargaining agreement imposing upon the Union a duty to file

employee grievances. The agreement provides that the employee may have any

person represent him in the grievance proceedings or can simply handle the

grievance himself. Aplt. App., Vol. II at 256-61. Further, the complaint itself

shows that Mr. Rivera is the person who prepared and delivered his termination

grievance to the wrong official,    see id. Vol. I at 5, and he cannot impute that

failure to the Union.

       As to the claims for negligence that     were stated in the complaint, the Union

points out in its response that Mr. Rivera never claimed that its allegedly

incompetent conduct in representing him during the grievance proceedings was

“arbitrary, discriminatory, or in bad faith,” which is the type of conduct required

to establish a prima facie case of breach of the duty of fair representation.     Young

v. United Auto. Workers Labor Employment & Training Corp.             , 95 F.3d 992, 996

(10th Cir. 1996) (quotation omitted). “Mere negligence, poor judgment, or

ineptitude in grievance handling are insufficient to establish a breach of the duty


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of fair representation.”   Id. at 997 (quotation omitted). Mr. Rivera did not reply

to the Union’s argument. We affirm the district court’s conclusion that

Mr. Rivera failed to state a claim for breach of the duty of fair representation.

       B. Summary judgment on the due process claim.            Mr. Rivera’s

complaint alleged that the County defendants and the Union violated his due

process rights by refusing to allow him to present his side of the story at

a post-termination hearing. Citing    Cleveland Board of Education v. Loudermill       ,

470 U.S. 532, 546 (1985), and     Benavidez v. City of Albuquerque   , 101 F.3d 620,

626 (10th Cir. 1996), the district court granted summary judgment in favor of the

County defendants and the Union on this claim. The court concluded that,

because Mr. Rivera had notice and an opportunity to present his version of the

facts at the pre-termination hearing and because he had the    opportunity for

a post-termination hearing, but had waived it by failing to follow procedural

requirements, he could not prevail on a procedural due process claim. Aplt. App.,

Vol. II at 387-88; id. at 391-92.

       On appeal, we review the district court’s conclusions of law de novo.

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.        ,

165 F.3d 1321, 1326 (10th Cir. 1999). Where there are no disputed material

facts, “we determine whether the district court correctly applied the substantive

law.” Id. Mr. Rivera complains that he was unconstitutionally denied an


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administrative post-termination hearing and that the County and Union could not

bargain away his rights to such a hearing via a collective bargaining agreement

that restricted his right to the hearing by making him follow procedural

requirements. We disagree. As long as the procedural requirements are

reasonable and give the aggrieved party adequate notice and an opportunity to

meaningfully participate, they are not unconstitutional.    See Hennigh v. City of

Shawnee , 155 F.3d 1249, 1256 (10th Cir. 1998) (noting that “grievance

procedures provided by a collective bargaining agreement can satisfy a plaintiff's

entitlement to post-deprivation due process”);     and see Krentz v. Robertson , 228

F.3d 897, 904 (8th Cir. 2000) (stating that employee waives procedural due

process claim by refusing to participate in post-termination proceedings);

Dusanek v. Hannon , 677 F.2d 538, 542-43 (7th Cir. 1982) (“The availability of

recourse to a constitutionally sufficient administrative procedure satisfies due

process requirements if the complainant merely declines or fails to take advantage

of the administrative procedure.”)

       Finally, Mr. Rivera does not state what other evidence he would have

presented at a post-termination hearing that could have changed the outcome of

the proceedings. He does not complain that he had no meaningful opportunity to

present evidence or cross-examine the witnesses against him at the pre-

termination hearing, and in fact admits to much of the factual predicate


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underlying his termination.   See Calhoun v. Gaines , 982 F.2d 1470, 1476 (10th

Cir. 1992) (noting that a “full-blown adversarial post-termination hearing” is

required only if “such [a hearing] was [not] included as part of the pretermination

proceedings”). There are no disputed material facts concerning the County’s

hearing process. Thus, for substantially the same reasons stated by the district

court, we affirm summary judgment in favor of the County defendants and the

Union on this issue.

      The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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