UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York on the 8th day of November two thousand.

PRESENT:

HONORABLE JAMES L. OAKES, HONORABLE RALPH K. WINTER, HONORABLE ROBERT D. SACK, Circuit Judges.

LUCILLE DIEM, Plaintiff-Appellant, - v. - No. 99-9038

CENTRAL SUFFOLK HOSPITAL, LOCAL 1115 HOSPITAL and SERVICE EMPLOYEES UNION and EVELYN LUBRANO, Defendants-Appellees.

APPEARING FOR APPELLANT: Lucille Diem, pro se.

APPEARING FOR APPELLEE: Richard M. Greenspan, Elmsford, NY, for Local 1115 Hospital and Service Employees Union.

Michael T. McGrath, Putney, Twombly, Hall & Hirson, New York, NY, for Central Suffolk Hospital and Evelyn Lubrano.

Appeal from the United States District Court for the Eastern District of New York (Joanna Seybert, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

The plaintiff Lucille Diem appeals pro se from a memorandum and order issued by the District Court for the Eastern District of New York (Joanna Seybert, Judge) granting summary judgment to the defendants on her claims seeking vacatur of an arbitration award, reinstatement, and damages.

Until the events underlying this appeal, the plaintiff worked for roughly thirty-six years as a licensed practical nurse at the defendant hospital. Throughout much of her employment, and during the times relevant to this appeal, the plaintiff was a member of, and was represented by, the defendant union for collective bargaining, grievance, and arbitration purposes.

On June 13, 1996, the plaintiff was fired by the hospital, purportedly because she violated established standards of professional ethics by accessing and reading her own and other employees' confidential personnel files. Soon afterward, she protested her termination to the shop steward of the union, who filed a grievance on her behalf. Following a grievance meeting at which the plaintiff and the Union were unable to resolve the dispute, the matter proceeded to arbitration before an arbitrator selected by the parties. By an opinion and award dated December 18, 1996, the arbitrator denied the plaintiff's grievance and found that the defendant hospital had "established good cause for the discharge of the grievant."

The plaintiff timely filed suit in district court in March 1997, asserting claims of unlawful termination against the hospital and breach of the statutory duty of fair representation against the union. Concluding that the plaintiff had failed to show the existence of a genuine issue of material fact concerning the threshold issue of fair representation, the district court granted summary judgment to the defendants and dismissed the plaintiff's claims by a Memorandum and Order dated August 12, 1999.

We review a district court's grant of summary judgment de novo. Weinstock v. Columbia University, 224 F.3d 33, 40 (2d Cir. 2000). The district court correctly stated the applicable law. Because success on the plaintiff's allegation of a breach of the duty of fair representation is a prerequisite to consideration of the other claims in her complaint, see Young v. United States Postal Serv., 907 F.2d 305, 307 (2d Cir. 1990), we address as a threshold matter whether the plaintiff proved the existence of a genuine issue of material fact on the question of the union's fulfillment of its duty.

A plaintiff must make two showings in order to prevail on a claim of breach of the duty of fair representation: first, that the union's conduct was "arbitrary, discriminatory, or in bad faith," Vaca v. Sipes, 386 U.S. 171, 190 (1967); and second, that the union's actions "seriously undermine[d] the integrity of the arbitral process," Hines v. Anchor Motor Freight, 424 U.S. 554, 567 (1976). We have held that the relevant inquiry is whether the union's representation fell "so far short of minimum standards of fairness to the employee and [was] so unrelated to legitimate union interests as to be arbitrary," Nat'l Labor Relations Bd. v. Local 282, Int'l Bhd.

Of Teamsters, Chauffers, Warehousemen and Helpers of America, 740 F.2d 141, 147 (2d Cir. 1984) (citations omitted).

Allegations of mere negligent or unsuccessful representation are insufficient to survive a motion for summary judgment.

See United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495

U.S. 362, 372-373 (1990); Cook v. Pan American World Airways, 771 F.2d 635, 645 (2d Cir. 1985).

The district court was correct to conclude under this standard that the facts asserted by the plaintiff do not constitute evidence sufficient to permit a reasonable jury to find a breach of the duty of fair representation. We agree with the lower court's assessment that "the Union represented Plaintiff at each progressive stage from termination to grievance to settlement negotiations to arbitration," and that "although the representation was far from ideal, it could not be characterized as so far outside a wide range of reasonableness as to be wholly irrational or arbitrary."

Because the plaintiff therefore failed to establish a genuine issue of material fact on this question, the grant of summary judgment to the defendants and the concomitant dismissal of the remaining claims was necessary and appropriate.

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT, ROSEANN B. MACKECHNIE, Clerk By:

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