                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 November 25, 2008
                           FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    JESS LILES; JAY FUNDERBURK;
    KEVIN BENNETT; GERRY
    WALTON; KERRY WILLIAMS;
    ROY SAVALA; GREGG ALLMAN;
    MIKE HINOJOS; GENE BOLTON;
    TODD LORD; DEBBIE SEIFTS;
    SAUL RASCON,

               Plaintiffs-Appellants,

    v.
                                                        No. 07-2241
    WASHINGTON TRU SOLUTIONS,                 (D.C. No. 1:06-cv-00854-JB-CG)
    LLC; WESTINGHOUSE                                    (D. N.M.)
    GOVERNMENT ENVIRONMENTAL
    SERVICES COMPANY, LLC;
    UNITED STEEL, PAPER AND
    FORESTRY, RUBBER,
    MANUFACTURING, ENERGY,
    ALLIED INDUSTRIAL AND
    SERVICE WORKERS
    INTERNATIONAL UNION,
    AFL-CIO, Its Local 12-9477; PAPER,
    ALLIED INDUSTRIAL CHEMICAL
    & ENERGY WORKERS
    INTERNATIONAL UNION,
    AFL-CIO, Its Local 4-9477,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
                                                                       (continued...)
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.



      Plaintiffs, employees of defendant Washington Tru Solutions, LLC (WTS),

appeal the district court’s order granting summary judgment to defendants. Aplt.

App. at 227-54. Plaintiffs filed their complaint in state court alleging that their

employer violated two consecutive collective bargaining agreements (CBAs) to

provide them transportation to their job site, and that their labor union violated its

duty of fair representation by refusing to pursue their claims for transportation.

Defendants removed the case to federal district court because plaintiffs’

complaint, which stated claims against both their employer and union, was a

hybrid action under § 301 of the Labor Management Relations Act, under 29

U.S.C. § 185(a). See Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1237

(10th Cir. 1998) (explaining suit against employer and union commonly referred

to as hybrid suit).

                             A. Appellate Jurisdiction

      Before considering the merits of this appeal, we must determine whether

plaintiffs’ notice of appeal was timely, thus conferring appellate jurisdiction on



*
 (...continued)
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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this court. The notice of appeal was due within 30 days after the district court’s

judgment was entered. Fed. R. App. P. 4(a)(1)(A). The judgment was entered on

August 31, 2007, making the deadline for the notice of appeal Monday,

October 1, 2007. See Fed. R. App. P. 26(a)(3) (extending to next court business

day a deadline falling on weekend or holiday). Although the district court

initially docketed the notice of appeal as of October 4, 2007, the record reflects

that it was filed electronically on September 25, 2007, before the filing deadline.

“The electronic record is the official record of the [District] Court. . . . [A]n

electronic document is considered filed on the date of the electronic transfer.”

CM/ECF Administrative Procedures Manual for the United States District Court

for the District of New Mexico, sections 2(a) & 9(c). See

http://www.nmcourt.fed.us/web/DCDOCS/dcindex.html. Accordingly, the notice

of appeal was filed timely and this court has jurisdiction under 28 U.S.C. § 1291.

                                   B. Background

      An exhaustive background of this case can be found in the district court’s

memorandum opinion and order granting summary judgment to defendants. We

set forth here only those background facts necessary to resolve the instant appeal.

      Plaintiffs are employed at the United States Department of Energy’s Waste

Isolation Pilot Plant (“WIPP”), which is located about 45 miles from plaintiffs’

homes in or near Hobbs, New Mexico. The defendants are the current and

predecessor operators of the plant and the current and predecessor labor unions


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authorized to represent the plaintiffs. See Aplt. App. at 228-30 (explaining in

detail the identities and relationships of the parties). The plant operator employed

plaintiffs.

       Plaintiffs alleged that their employer was required by CBAs entered into

between the employer and the union in 1999 and 2005 to provide them

transportation from Hobbs to the plant. Plaintiffs asserted that WIPP employees

in Eddy County, New Mexico, were provided transportation to work, while they

were not. Plaintiffs also alleged that their union breached its duty of fair

representation by refusing to file a grievance with the employer on their

transportation demand.

       Defendants contended that the CBAs did not require transportation from

Hobbs. They pointed to the CBA language requiring the employer to maintain the

same level of transportation as in the past. They asserted that because

transportation from Hobbs was not provided in the past, except for a brief period

during which the employer required additional shifts, the CBAs did not require

such transportation. Moreover, transportation was funded by the Department of

Energy, which denied the request to increase funding to provide transportation

from Hobbs.

       Of the twelve plaintiffs, the district court dismissed the claims of six,

Allman, Rascon, Savala, Seifts, Walton, and Hinojos, because they never




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attempted to file a formal grievance through the union. 1 The district court held

that the claims of the remaining six plaintiffs, Bolton, Bennett, Funderburk, Lord,

Liles, and Williams, were barred on statute-of-limitations grounds. Because it

determined that all claims were barred on procedural grounds, the district court

did not address the merits of plaintiffs’ claims.

      On appeal, plaintiffs assert that it would have been futile for them to

attempt to comply with the grievance procedures, so their failure to exhaust

should be excused. They further maintain that their claims are not time-barred

because union representatives told them on several occasions that the union would

try to get them transportation from Hobbs, even though the representatives made

clear that the union would not file any formal action with the employer. Plaintiffs

also argue that “the union’s unilateral refusal to address the issue on behalf of the

plaintiffs[] is of a continuing and ongoing nature preventing the conclusion that

the limitations period has expired.” Aplt. Br. at 16.

                               C. Standards of Review

      We review a grant of summary judgment de novo. Garvin v. AT&T, 174

F.3d 1087, 1092 (10th Cir. 1999). Summary judgment “should be rendered if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is



1
       Plaintiff Hinojos willfully failed to appear for his deposition, so the district
court ruled that any evidence he may have had could not be admitted.

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Although we

view the evidence and draw reasonable inferences therefrom in the light most

favorable to the nonmoving party, the nonmoving party must present more than a

scintilla of evidence in favor of his position. Grace United Methodist Church v.

City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006). “We review the district

court’s determination of the controlling applicable statute of limitations de novo.”

Edwards v. Int’l Union, United Plant Guard Workers of Am., 46 F.3d 1047, 1050

(10th Cir. 1995). “Where, as here, the dates on which the pertinent acts occurred

are not in dispute, the date a statute of limitations accrues is a question of law

reviewed de novo.” Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 (10th Cir.

1996) (alteration and quotation omitted).

                                     D. Analysis

      “It has long been established that an individual employee may bring suit

against his employer for breach of a collective-bargaining agreement.”

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163 (1983). In addition, if

the union representing the employee has breached its duty of fair representation,

the “employee may bring suit against both the employer and the union.” Id. at

164. Employee-plaintiffs must show both that the claimed benefit was required

by the collective-bargaining contract and that the union breached its duty before

they can prevail against either the employer or the union. See Edwards, 46 F.3d

at 1051.


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                   (i) Failure to Exhaust Grievance Remedies

      Ordinarily, employees are required “to attempt to exhaust any grievance or

arbitration remedies provided in the collective-bargaining agreement.”

DelCostello, 462 U.S. at 163; accord Garvin, 174 F.3d at 1093. “Exhaustion is

excused when: (1) it would be futile; (2) the employer through its conduct has

repudiated the grievance procedure itself; or (3) the union has prevented the

employee from utilizing the grievance process by breaching its duty of fair

representation.” Garvin, 174 F.3d at 1093.

      The district court held that six plaintiffs were foreclosed from suit because

they did not exhaust available grievance remedies. Plaintiffs invoke the futility

exception to the exhaustion requirement, asserting that the union’s refusal to

process their transportation grievances excused them from filing grievances. But

these six plaintiffs have produced no evidence that they attempted to file a

grievance. They apparently claim that their coworkers told them not to bother

trying to file grievances because the union would not process them. This claim

“do[es] not approach the clear and positive showing of futility which we have

stated needs to be made.” Fizer v. Safeway Stores, Inc., 586 F.2d 182, 183

(10th Cir. 1978) (quotation omitted). “[V]ague subjective conclusions” that any

attempt to file a grievance would have been refused, “stated only in [their]

deposition[s], are insufficient to show that [plaintiffs’] charges would not have

received a fair hearing within the Union. The fact remains that [they] never


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actually filed [grievances] in accordance with the [CBAs] and therefore never

gave the system a chance to work.” Id. at 183-84. Accordingly, we conclude that

these plaintiffs are not entitled to invoke the futility exception to the exhaustion

requirement, and we affirm the district court’s grant of summary judgment to

defendants against plaintiffs Allman, Rascon, Savala, Seifts, Walton, and Hinojos.

                             (ii) Statute of Limitations

      If an employee has exhausted the grievance procedures, he may file suit in

federal court if he does so within six months after his claim has accrued. See

DelCostello, 462 U.S. at 154-55 & n.2 (holding six-month statute of limitations

applies to suit against employer and union); accord Arnold, 100 F.3d at 859. The

general rule is that “the limitation period begins to run when an employee knows

or in the exercise of reasonable diligence should have known or discovered the

acts constituting the union’s alleged violations.” Lucas v. Mountain States Tel. &

Tel., 909 F.2d 419, 420-21 (10th Cir. 1990) (per curiam).

      The district court held that the claims of plaintiffs Bolton, Bennett,

Funderburk, Lord, Liles, and Williams were barred by the six-month statute of

limitations. Plaintiffs do not challenge on appeal the district court’s

determination that they knew long before they filed suit that the union would not

file or pursue a grievance for them on the transportation issue. Rather, plaintiffs

argue that the limitations period was tolled because union representatives

repeatedly told them that they would continue to try to get transportation for


                                          -8-
them. In addition, plaintiffs now argue that the union’s breach is of an ongoing

and continuing nature so the limitations period has not expired.

      Generally, when a union represents an employee throughout the applicable

grievance process, any claim against the union does not arise until after the

grievance process has concluded. Id. at 421. “[I]n duty-of-fair-representation

cases in which the alleged breach of duty arises outside the context of processing

a grievance, courts have held that accrual of such a claim can be tolled by an

employee’s good faith attempt to exhaust the grievance procedures.” Id. at

421-22; cf. Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 331 (1969)

(holding petitioners sufficiently alleged futility by asserting they made “repeated

complaints to company and union officials” to file grievance). “As with any party

claiming the benefit of equitable tolling of a limitations period, [plaintiffs] bore

the burden of proving justifiable circumstances.” Olson v. Fed. Mine Safety &

Health Review Comm’n, 381 F.3d 1007, 1014 (10th Cir. 2004); see also Aldrich v.

McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (“While the

statute of limitations is an affirmative defense, when the dates given in the

complaint make clear that the right sued upon has been extinguished, the plaintiff

has the burden of establishing a factual basis for tolling the statute.”).

      Plaintiffs concede that any attempts they made to exhaust the grievance

process ended long before February 8, 2006 (six months before suit was filed on

August 8, 2006). They also admit they knew the union would not file a grievance


                                          -9-
on the transportation issue long before February 8, 2006. Furthermore, they have

not demonstrated that the union representatives deceived them about what they

intended to do regarding the transportation issue. See Edwards, 46 F.3d at 1055

(holding facts established by plaintiff did not toll limitations period because they

did not show “active deception” by union). We therefore conclude that plaintiffs

are not entitled to tolling of the statute of limitations.

      Plaintiffs’ other argument–that the union’s alleged breach is of an ongoing

and continuing nature–is deemed waived. They apparently did not present this

claim to the district court 2 and they have provided to this court no reasoned

argument or legal authority to support it. Therefore, we do not consider it. See

Fischer v. Forestwood Co., 525 F.3d 972, 978 n.2 (10th Cir. 2008) (declining to

consider claim not presented to the district court or raised on appeal);

Gaines-Tabb, 160 F.3d at 624 (“[A]rguments not set forth fully in the opening

brief are waived.”). Finally, we do not address plaintiffs’ arguments pertaining to

whether defendants breached the CBAs because we affirm the summary judgment

on failure-to-exhaust and statute-of-limitations grounds.



2
       Plaintiffs’ appellate brief does not “cite the precise reference in the record
where the issue was raised and ruled on,” as required by 10th Cir. R. 28.2(C)(2).
Although plaintiffs’ counsel made a brief reference to this claim at the
district-court hearing held July 5, 2007, Aplt. App. at 171, that was insufficient to
preserve the issue for appeal. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding
Co., 497 F.3d 1135, 1141 (10th Cir. 2007) (“An issue is preserved for appeal if a
party alerts the district court to the issue and seeks a ruling.”).

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                               E. Conclusion

     Defendants’ motion for sanctions is DENIED. The judgment of the district

court is AFFIRMED.


                                               Entered for the Court



                                               Jerome A. Holmes
                                               Circuit Judge




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