       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                               Fifth Circuit

                                                             FILED
                                                           February 8, 2008

                            No. 07-20155             Charles R. Fulbruge III
                          Summary Calendar                   Clerk


LARRY EDWIN RASCO

                                     Plaintiff-Appellant
v.

JOHN POTTER, Postmaster General, United States Postal Service; THE
AMERICAN POSTAL WORKER’S UNION

                                     Defendants-Appellees

LARRY RASCO

                                     Plaintiff-Appellant
v.

JOHN POTTER, Postmaster General, United States Postal Service; THE
AMERICAN POSTAL WORKER’S UNION, AFL-CIO

                                     Defendants-Appellees

LARRY RASCO

                                     Plaintiff-Appellant
v.

UNITED STATES POSTAL SERVICE, through John Potter Post Master
General

                                     Defendant-Appellee
                                       No. 07-20155


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:05-CV-34



Before WEINER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Larry Rasco appeals the district court’s grant of summary
judgment in favor of the United States Postal Service (“USPS”) and the
American Postal Workers Union (“Union”). For the following reasons, we
AFFIRM.
                                   I. BACKGROUND
       Appellant worked for USPS for twenty-eight years at the North
Houston Mail Processing Center, where his final position was automation
expediter. At all relevant times, Appellant was a member of the Union.
       On September 9, 2002, USPS issued a notice of removal to Appellant for
his alleged failure to follow instructions, including taking a break in the label
room despite previous instructions to the contrary. The Union filed a
grievance and pursued the matter to arbitration, where Arbitrator Stephen
Dorshaw reduced the termination to a fourteen-day suspension. Arbitrator
Dorshaw noted: “This is [Appellant’s] final opportunity . . . since any
subsequent Notice of Removal for future infractions of the same nature would
clearly meet the ‘progressive discipline’ test.”1

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
         Under the collective bargaining agreement between USPS and the Union, any
disciplinary actions are resolved under the concept of “progressive discipline,” whereby the
appropriate discipline depends in part upon the employee’s disciplinary history. Thus, two
employees charged with the same offense may receive different discipline depending upon their

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        On February 27, 2004, USPS issued Appellant a second notice of
removal for failure to follow instructions. The Union filed a grievance and
USPS agreed to expunge the February 27 removal. Subsequently, on June 9,
2004, USPS issued a third notice of removal for failure to follow instructions.
Specifically, USPS charged Appellant with improperly lingering in the label
room on April 21 and May 10, 2004. The Union filed a grievance on
Appellant’s behalf regarding the June 9, 2004 notice of removal. Appellant
submitted a four-page written statement to the Union, which the Union
incorporated in its written grievance to USPS. USPS denied the Union’s
written grievance, and the matter proceeded to arbitration.
       The Union assigned National Advocate Billie Glazebrook to Appellant’s
case. The arbitration occurred on February 24, 2005 before Arbitrator Mark
Sherman. Both USPS and the Union called witnesses, including Appellant.
A prior arbitration award–sustaining a letter of warning from May 2000 for
failure to follow instructions–was admitted through the testimony of a USPS
witness. Appellant’s four page statement, however, was not introduced at the
arbitration hearing. The Union submitted a post-hearing brief that Appellant
agrees contained all relevant arguments in support of his case. On April 23,
2005, Arbitrator Sherman issued an award upholding Appellant’s
termination, noting “the totality and persistence” of Appellant’s misconduct
and referring to Arbitrator Dorshaw’s previous warning to Appellant.
       Appellant then asked the Union to appeal Arbitrator Sherman’s award.
The Union declined to do so, and Appellant initiated this suit against USPS
and the Union. On January 4, 2007, the district court granted summary
judgment for USPS and the Union. Appellant moved for reconsideration
which was denied on January 26, 2007.



disciplinary history.

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                           II. STANDARD OF REVIEW
      This Court reviews de novo the district court’s grant of summary
judgment. Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559
(5th Cir. 1997). Summary judgment is appropriate only where there is no
genuine issue of material fact, and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Clark v. America’s Favorite Chicken
Co., 110 F.3d 295, 297 (5th Cir. 1997).
          III. CLAIMS AGAINST UNITED STATES POSTAL SERVICE
      Appellant argues that USPS discriminated against him on the basis of
race and in retaliation for prior equal employment opportunity (“EEO”)
activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
200e et seq. (“Title VII”) and, thereby, violated his due process rights.2 We
address each claim below.
A. Race Discrimination
      Appellant is a white male. Appellant argues that he was discriminated
against when: (1) from July 26, 2002 through September 11, 2002, he was
issued instructions not to miss any dispatches and was not allowed to sit by
the telephone located next to the dispatches; (2) on September 9, 2002 he was
issued a notice of removal; and (3) on June 9, 2004 he was issued a notice of
removal. Appellant’s main argument is that he was treated more harshly
than two Hispanic employees when all three were disciplined for ignoring
instructions regarding usage of the label room, but only he was removed from
his position and placed on leave without pay.
      To establish a prima facie case of race discrimination, Appellant must
establish that he was a member of a protected class, qualified for the position

      2
         Appellant mentions sex and age discrimination without any supporting argument.
However, as the administrative law judge and district court found, Appellant abandoned his
claims of sex and age discrimination during his deposition. Therefore, we need not address
those claims.

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from which he was discharged, subjected to an adverse employment action,
and treated less favorably than similarly situated individuals who were not
members of his protected class. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990). Appellant
cannot establish a prima facie case because the evidence does not show that
he was treated differently than similarly situated employees. All relevant
employees were given the same instructions regarding timely handling of
dispatches and not using the label room for breaks. Furthermore, while the
Hispanic employees received a lesser punishment, they did not have
Appellant’s lengthy record of prior misconduct. Therefore, they are not
similarly situated to Appellant, and Appellant fails to establish a prima facie
case of race discrimination.
B. Retaliation
      In addition to challenging USPS’s disciplinary actions through the
grievance process, Appellant also filed EEO complaints. Specifically,
Appellant filed complaints alleging discrimination based upon race, age, sex,
and retaliation regarding: a pre-disciplinary interview from April 2002 (which
did not result in discipline), the September 2002 notice of removal, and the
June 2004 notice of removal. The former complaint was resolved by an
agreement between USPS and Appellant, and in the latter two complaints an
administrative law judge found in favor of USPS. Appellant argues that he
was discriminated against in retaliation for pursuing his EEO claims.
      To establish a prima facie case of unlawful retaliation under Title VII,
Appellant must show: “(1) that he engaged in an activity protected by Title
VII, (2) that an adverse employment action occurred, and (3) that a causal
link existed between the protected activity and the adverse employment
action.” Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007). The district
court found no evidence of a causal link between Appellant’s protected

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activity and adverse employment action. We agree. There is no evidence that
Appellant’s supervisors were aware of his prior EEO activity. While only
fourth months elapsed between the September 2002 notice of removal and
Appellant’s prior EEO complaint, this temporal proximity standing alone is
not sufficient evidence of causation. See Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273-74 (2001). Therefore, Appellant’s retaliation claim is
without merit.3
C. Denying Appellant’s Motion was not an Abuse of Discretion
       Finally, Appellant argues that the district court erred when it denied
his motion to allow an untimely response to USPS’s motion for summary
judgment. We review the district court’s determination for abuse of
discretion. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 (5th
Cir. 2006). Federal Rule of Civil Procedure 6(b)(1) grants a district court
discretion to allow untimely responses where “the party failed to act because
of excusable neglect.” Here, the district court granted Appellant three
extensions of time to file his response before denying his untimely fourth
motion. We hold that this ruling was not an abuse of discretion.
       IV. CLAIM AGAINST AMERICAN POSTAL WORKERS UNION
       We now turn to Appellant’s claim that the Union breached its duty of
fair representation. Appellant argues that the Union’s representation was
deficient because it did not introduce his four-page written statement at the
arbitration, and it permitted introduction of the prior arbitration award.4 In


       3
         Appellant also presents a procedural due process claim against USPS based upon the
Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 7501 et seq. However, the CSRA is not
applicable in the instant case because it governs appeals before the Merit Systems Protection
Board and Appellant did not pursue such an appeal. Therefore, Appellant’s claim lacks merit.
       4
          Appellant briefly asserts a due process claim against the Union. However, as the
district court noted, the Union is not a state actor and therefore not subject to the Fifth and
Fourteenth Amendments. See Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191
(1988).

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response, the Union argues that Appellant’s written statement did not need
to be introduced because its contents were reflected in Appellant’s testimony
and post-hearing brief. Furthermore, the Union argues that USPS
introduced the prior arbitration award to attack Appellant’s credibility, and
the arbitrator controlled its admissibility.
      When considering the duty of fair representation by a union, “[t]he
critical question is whether [the] union’s conduct was arbitrary,
discriminatory, or in bad faith, so that it undermined the fairness or integrity
of the grievance process.” Landry v. The Cooper/T. Smith Stevedoring Co.,
880 F.2d 846, 852 (5th Cir. 1989). We agree with the Union that it fully and
fairly represented Appellant through the grievance process, both before and
during the arbitration. There is no evidence to suggest that the Union’s
conduct was arbitrary, discriminatory, or in bad faith.
      Additionally, we agree with the district court that the Union’s refusal to
sue to vacate the award did not violate the duty of fair representation.
Appellant’s relationship with the Union is rooted in contract, and the Union
Agreement provides that the Union does not have to sue to vacate an award
unless the Union determines that the award was without a factual basis and
contrary to the Union Agreement. The Union acted well within its
contractual discretion. Therefore, the Union did not breach its duty of fair
representation.
                               V. CONCLUSION
      In light of the foregoing, the judgment is AFFIRMED in all respects.




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