                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3287
                                      ____________

                                   WILLIAM KLIMEK
                                             Appellant
                                         v.

          UNITED STEELWORKERS LOCAL 397; JOHN DOES (1-10)
    ABC CORPS (Fictitious Names) SUNOCO PARTNERS, LLC; ROBERT GRAY
                                 ____________

                       On Appeal from United States District Court
                              for the District of New Jersey
                                (D. NJ. No. 2-11-cv-01988)
                       District Judge: Honorable Claire C. Cecchi
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 20, 2015

              Before: FISHER, CHAGARES and COWEN, Circuit Judges.

                                  (Filed: June 17, 2015)
                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.

       William Klimek appeals the District Court’s summary judgment in favor of United

Steelworkers Local 397 (“Local 397”), Robert Gray, and Sunoco Partners LLC

(“Sunoco”). We will affirm, essentially for the reasons stated by the District Court.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       Klimek worked as a Sunoco terminal operator from November 2005 until he was

fired on August 23, 2010, for twice violating Sunoco rules against harassment. The first

incident occurred in January 2009 when Klimek yelled at another terminal operator and

used profane language. Afterward, Klimek’s direct supervisor, Romeet Ahuja, met with

him to tell him his behavior was “not at all tolerated.”1 Then in April 2010, Klimek yelled

at a Sunoco subcontractor driver after the driver asked Klimek about a light that was out

in the terminal operator office. The driver reported the incident to Sunoco’s Northeast

Regional Manager, Gray, who investigated it. The parties dispute the details and extent of

the investigation, but they agree that on April 23, 2010, Gray informed Klimek—in the

presence of Klimek’s Local 397 representative, Greg Turner2—that Klimek was accused


1
 App. 116, 246.
2
 Local 397 was the exclusive bargaining representative for Sunoco operators at its
Newark terminal, and a collective bargaining agreement (“CBA”) governed the

                                              2
of “harassing [the driver] and hollering at him.”3 Soon after, Gray recommended that

Sunoco fire Klimek, and on May 14, 2010, Sunoco approved the termination.

       The same day Sunoco decided to fire him, however, Klimek informed Sunoco he

needed time off because of a severe gout attack, which ultimately turned into a three-

month leave of absence. He had previously taken a three-month leave of absence in 2008

for a gout attack. When Klimek returned to work on August 23, 2010, Gray informed

Klimek that he was fired for violating Sunoco’s harassment policy.

       Following his termination, Klimek asked Turner to file a grievance on his behalf

pursuant to the CBA. After a Step 1 grievance was denied, Turner planned to file a Step 2

grievance, but the CBA required Klimek’s signature to do so. Turner tried to contact

Klimek to get his signature but was unable to reach him because, unbeknownst to Turner,

Klimek’s phone was out of service for several days around this time. Turner finally spoke

to Klimek on October 7, 2010, and that evening, Klimek signed the forms. The next

morning, Turner filed the Step 2 grievance, believing that it was timely, but it was in fact

one day late and was denied as untimely. Local 397 decided not to appeal this decision.

       Klimek sued Sunoco and Gray for violating the New Jersey Law Against

Discrimination (“NJLAD”) by firing him because of his gout.4 Klimek also sued Local




operators’ terms of employment. Klimek was not a Local 397 member, but he was
advised Local 397 would represent him upon request.
3
  App. 366.
4
  N.J. Stat. § 10:5-12(a).

                                             3
397 and Sunoco for violating § 301 of the Labor Management Relations Act (“LMRA”).5

The District Court granted summary judgment for all defendants, and Klimek appealed.

                                            II.6

       We exercise plenary review over the District Court’s summary judgment, applying

the same standard the District Court did.7 We review the record in the light most

favorable to the nonmovant and will affirm only if “‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’”8

                                            III.

       Klimek contends that the District Court misapplied the summary judgment

standard in concluding no genuine dispute of material fact existed and that the Court

committed legal error with respect to his LMRA claim. We disagree.

                                            A.

       Klimek’s NJLAD claim is based on his belief that Sunoco fired him because of his

gout. An NJLAD claim is analyzed under the familiar burden-shifting framework from

McDonnell Douglas Corp. v. Green.9 For this appeal, the parties concede that Klimek can

establish a prima facie case of discrimination and that Sunoco had a nondiscriminatory


5
  29 U.S.C. § 185.
6
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have
jurisdiction under 28 U.S.C. § 1291.
7
  Douglass v. Convergent Outsourcing, 765 F.3d 299, 301 n.3 (3d Cir. 2014).
8
  Heffernan v. City of Paterson, 777 F.3d 147, 151 (3d Cir. 2015) (quoting Fed. R. Civ. P.
56(a)).
9
  411 U.S. 792 (1973); Viscik v. Fowler Equip. Co., 800 A.2d 826, 833 (N.J. 2002).

                                             4
reason for firing him. Therefore, the only question remaining is whether Klimek can

show that Sunoco’s proffered reason for firing him was a pretext for discrimination.

       To show pretext, Klimek must present some evidence “from which a factfinder

could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more likely than not a motivating

or determinative cause of the employer’s action.”10 It is not enough to show the

employer’s reasons were mistaken, unwise, imprudent, or incompetent; instead, Klimek

“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence.”11

       The District Court correctly concluded that Klimek’s evidence of pretext falls

short. To start, Gray’s mere knowledge of Klimek’s gout is insufficient to show pretext.12

Nor does Klimek’s belief that he received a harsher punishment than his conduct

warranted show pretext. Perhaps Klimek is correct that the two incidents in this case are

more aptly characterized as something less than harassment, but that only shows that

Sunoco’s reason for firing him was a mistake or an overreaction, not that it was a pretext

for discrimination. We are not “a super-personnel department” tasked with correcting

unduly harsh employment actions; we are instead concerned with whether the reasons for


10
   Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
11
   Id. at 765 (internal quotation marks omitted).
12
   See Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1073 (8th Cir. 1998).

                                             5
such actions are pretextual.13 Moreover, there is no evidence that Sunoco’s disciplinary

policy was mandatory; in fact, it expressly “reserves the right to impose penalties

different than those listed herein.”14 Therefore, even if Sunoco deviated from its policy

here, any showing of pretext based on that deviation is weak.15

       For the same reasons given by the District Court, we are also unpersuaded by

Klimek’s efforts to show pretext by highlighting inconsistencies in Gray’s testimony. We

will not recount each of the alleged inconsistencies here, but suffice it to say that the

variations between Gray’s recollection of events and others’ recollections do not show

pretext because they do not sufficiently call into question the nature of the incidents

involving Klimek and they do not suggest that Sunoco’s decision to fire him was based

on anything other than those incidents. Klimek argues further that Sunoco treated other

terminal operators who did not have medical disabilities more favorably than it treated

him. We disagree because none of the other employees Klimek identifies were

disciplined for anything resembling harassment or verbal abuse,16 and, as previously

stated, Sunoco’s disciplinary policy was non-mandatory. Sunoco’s decision to treat

Klimek’s conduct differently is not evidence of a discriminatory motive.



13
   Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995).
14
   App. 108.
15
   See Morris v. City of Chillicothe, 512 F.3d 1013, 1020 (8th Cir. 2008).
16
   See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) (noting that
comparator evidence usually entails, among other things, a showing that two employees
“had engaged in similar conduct”).

                                              6
       Finally, because we conclude that the District Court correctly granted summary

judgment for Sunoco, Klimek’s aiding and abetting claim against Gray also fails.17

                                              B.

       Klimek also brings a hybrid claim under § 301 of the LMRA against Local 397

and Sunoco. The claims are “inextricably interdependent” because the claims against the

union and the employer both require proof that the union breached its duty of fair

representation and that the employer breached the contract.18

       “A breach of the statutory duty of fair representation occurs only when a union’s

conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or

in bad faith.”19 The only question here is whether Local 397’s conduct was arbitrary. A

union acts arbitrarily “only if, in light of the factual and legal landscape at the time of the

union’s actions, the union’s behavior is so far outside a wide range of reasonableness as

to be irrational.”20 A union cannot, for example, “arbitrarily ignore a meritorious

grievance or process it in perfunctory fashion.”21 But mere negligence by the union does

not establish a breach of the duty of fair representation.22



17
   See Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 307 n.15 (3d Cir. 2004).
18
   DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164–65 (1983).
19
   Vaca v. Sipes, 386 U.S. 171, 190 (1967).
20
   Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (internal quotation marks
and citation omitted).
21
   Vaca, 386 U.S. at 191.
22
   United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372–73 (1990); Riley v. Letter
Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981).

                                               7
       Here, the District Court rightly decided that Klimek’s claim against Local 397

fails because Turner was at most negligent in not filing the grievance on time. Citing

precedent from other circuits, Klimek asks us to hold that a union’s unexplained failure to

perform a ministerial act, such as timely filing a grievance, is per se arbitrary conduct.23

We have not recognized a distinction between ministerial and non-ministerial acts, but

even if we did, it would not help Klimek here because Local 397’s conduct was not

unexplained. The CBA required Klimek’s signature to file a Step 2 grievance, but Turner

was unable to obtain Klimek’s signature for several days at least in part because of the

interruption to Klimek’s phone service. When Turner finally contacted Klimek, they met

immediately, and Turner filed the grievance the next morning.

       Additionally, Local 397 did not act arbitrarily by not pursuing the grievance after

it was denied as untimely. The CBA provided that an arbitrator could consider a

grievance only if it was “properly carried through all the steps of the grievance

procedure.”24 Therefore, Local 397’s decision to drop the grievance was reasonable.

       And because the claim against Local 397 for breach of the duty of fair

representation is a “necessary condition precedent” to the claim against Sunoco, the

District Court correctly concluded that the § 301 claim against Sunoco must fail as well.25


23
   See Klimek’s Br. 40–42 (citing Beck v. United Food & Commercial Workers Union,
Local 99, 506 F.3d 874, 880 (9th Cir. 2007); Vencl v. Int’l Union of Operating Eng’rs,
Local 18, 137 F.3d 420, 426 (6th Cir. 1998)).
24
   App. 78.
25
   Albright v. Virtue, 273 F.3d 564, 576 (3d Cir. 2001).

                                              8
                                     IV.

Accordingly, we will affirm the order of the District Court.




                                      9
