UNITED STATES COURT OF APPEALS
Filed 7/29/96
TENTH CIRCUIT
_____________________
ROBERT RICHARDSON,
Plaintiff-Appellant,
v. No. 95-1518
(D.C. No. 95-S-679)
BAKERY, CONFECTIONARY & (D. Colorado)
TOBACCO WORKERS, LOCAL NO.
26,
Defendant-Appellee.
_____________________
ORDER AND JUDGMENT *
_____________________
Before BRORBY, EBEL and HENRY, 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 appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore the
appellee's motion to decide the case without oral argument is granted.
*
This order and judgment is not binding precedent except under the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.
Pro se appellant Robert Richardson brings this appeal challenging the
dismissal of his claims of racial discrimination brought under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981. We affirm.
Mr. Richardson is an African-American member of the Bakery,
Confectionary & Tobacco Workers, Local No. 26 (the "Union"). He claims the
Union discriminated against him on the basis of his race when it failed to
represent him in a grievance for wrongful termination against his former
employer, Albertson's, Inc. 1 The district court granted the Union's motion for
summary judgment for five reasons:
First, the Plaintiff's complaint is untimely. The evidence indicates
that the Plaintiff filed his complaint beyond the 90-day time limit
after receiving the EEOC's determination on his charge of
discrimination. Other than his conclusory allegations, the Plaintiff
has provided no evidence to the contrary.
Second, the Plaintiff has failed to prosecute this case and has
refused to provide adequate responses to discovery requested by the
Defendant and ordered by the court on September 28, 1995....
Third, the Plaintiff has not established a prima facie case for
discrimination under Title VII or § 1981. There is absolutely no
1
We recently affirmed the district court's dismissal of Mr. Richardson's
separate lawsuit against Albertson's. Richardson v. Albertson's, Inc., No. 96-
1036, slip op. (10th Cir. July 29, 1996).
-2-
evidence that the Plaintiff was treated differently than anyone who
was similarly situated.
Fourth, the Defendant has sufficiently demonstrated a
legitimate nondiscriminatory reason for abandoning the Plaintiff's
grievance against Albertson's.
Fifth, the Plaintiff has not demonstrated that the Defendant's
nondiscriminatory reason for discontinuing the Plaintiff's grievance
was actually a pretext for discrimination. Other than bare conclusory
allegations set forth in the complaint, the Plaintiff has presented no
evidentiary support for his claims. The Plaintiff did not file any
responses to the Defendant's motion for summary judgment or motion
for dismissal. The Plaintiff's answer to the Magistrate Judge's
recommendation states merely general conclusory denials of the
Defendant's evidence.
Mr. Richardson raises two issues on appeal. First, Mr. Richardson claims
"[t]he District Court was prejudice[d] when making the decision on the Summary
Judgment. The issue is the District Court only reviewed the Defendant Summary
Judgment but failed to request the Plaintiff to response [sic] to Defendant
Summary Judgment. Therefore the decision was prejudice." This issue is without
merit. It was up to Mr. Richardson to respond to the Union's motion for summary
judgement. There is no requirement nor basis for the position that he had to wait
for the district court to order him to do so. He also has not alleged that he was
unable to do so or was unaware of the Union's motion. Furthermore, Mr.
Richardson did write a response to the Magistrate's recommendation to grant the
Union's motion which response begins "Plaintiff will state the facts to support
-3-
why the Summary Judgment should not be granted." The record reflects the
district court considered his response before ruling. The district court in no way
denied Mr. Richardson a chance to respond to the Union's motion nor
demonstrated any prejudice against him in making its decision.
It is hard to decipher his second issue. Applying a very liberal reading to
his brief, 2 he appears to contend that under Fed. R. Civ. P. 56 the Union did not
fully meet its burden of showing there was no genuine issue of material fact and
that there was no evidence to support Mr. Richardson's claims. For purposes of
this appeal, we will assume Mr. Richardson established a prima facie case of
racial discrimination pursuant to McDonnell Douglas v. Green, 411 U.S. 792, 802
(1973). It was then up to the Union to rebut the presumption of discrimination by
showing a nondiscriminatory reason for its actions. Drake v. City of Fort Collins,
927 F.2d 1156, 1160 (10th Cir. 1991). These reasons "must be clear and
reasonably specific." Id. Once this is done, the presumption of discrimination
"simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993). In this case the Union presented undisputed evidence that it
represented Mr. Richardson in the matter for over a year until finally faced with
2
We construe the pleadings of pro se parties liberally. Haines v. Kerner,
404 U.S. 519 (1972).
-4-
lack of cooperation from Mr. Richardson and persuasive evidence from
Albertson's it decided to drop his grievance. The Union began its representation
by writing a letter to Albertson's asking why it had fired Mr. Richardson. The
Union continued to pursue action against Albertson's despite Mr. Richardson's
failure to respond to its requests for information. Eight months into the process,
the Union wrote to Mr. Richardson and told him it needed some concrete
information to support his claims before it could proceed any further on his
behalf. Two weeks later, after still not receiving any supporting evidence from
Mr. Richardson, the Union notified him it would not proceed with his case. The
Union, however, did not formally withdraw its complaint against Albertson's until
nearly five months later when it received a letter from Albertson's which
with the accompanying co-worker witness statements on record
against the Appellant, made it clear that in order to prove the
Appellant's case, the Appellee would have to prove that four other
members of the bargaining unit were lying. Moreover, the Appellee
would have to impeach the credibility of these co-workers without
the Appellant himself having provided any information of any sort to
confirm his story.
Mr. Richardson does not refute the Union's contention that he failed to cooperate
with it by providing any evidence to support his claims nor has he presented any
evidence to show the Albertson's letter to be unreliable. He also does not provide
any evidence showing any intentional discrimination against him or that he was
treated differently than non-minority union members. He simply alleges that the
-5-
Union failed to represent him because he is black and claims the Union failed to
furnish any documents showing that another member in the same situation had
been treated similarly. Mr. Richardson fails to understand who bears what
burden. Once the Union put forth a legitimate non-discriminatory reason for
failing to pursue his grievance it was up to him to raise a genuine issue of fact
regarding whether the Union's given reasons were mere pretext. Carey v. United
States Postal Serv., 812 F.2d 621, 625 (10th Cir. 1987). It was Mr. Richardson's
burden to show that the Union had treated similarly situated non-minority
members differently, not the other way around. The closest we find to any
allegation of racial animus is his statement that "when [] White Co-workers make
a statement and [a] Black member los[es] his right[] to be represent[ed] by the
Appellee that is discrimination." We assume he means the statements supporting
the Albertson's letter were made by white co-workers. Interestingly, he does not
challenge the verity of their statements but instead alleges the Union should have
provided police reports describing the events rather than relying on the white co-
worker's statements. He also does not explain how the police reports would differ
from the testimony of his co-workers or provide any reasons why his co-workers
might be unreliable other than the unacceptable fact that they are white and he is
black.
-6-
In order to survive a motion for summary judgment the non-moving party
must do more than assert conclusory allegations and claim the moving party
should have used a different source for its supporting facts. In this case, the
Union has presented the non-racially motivated reasons that they dropped Mr.
Richardson's grievance after he failed to cooperate with them by providing any
support for his claims while faced with a letter from Albertson's providing
legitimate reasons for firing him supported by several eyewitness statements and
affidavits. The Union also produced numerous letters documenting its attempts to
get information from Mr. Richardson about his claims, actions it had taken
against Albertson's in pursuit of this claim and evidence of previous actions it had
successfully taken on Mr. Richardson's behalf. The simple fact that the
eyewitnesses supporting Albertson's letter are white and he is black is not enough
to support a claim of racial discrimination. We find no direct or indirect evidence
that Mr. Richardson's race played any role in the Union's decision to no longer
pursue his grievance.
The district court's order is AFFIRMED.
Entered for the Court:
WADE BRORBY
United States Circuit Judge
-7-