Stephen Jones v. United Parcel

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

Nos. 05-2202/2205
___________

Stephen E. Jones, *
*
Appellant, *
*
Doyle Clark, *
*
Appellant, * Appeals from the United States
* District Court for the
v. * Western District of Missouri.
*
United Parcel Service, Inc.; Local 41 *
of the International Brotherhood of *
Teamsters, *
*
Appellees. *
___________

Submitted: March 13, 2006
Filed: August 22, 2006 (Corrected 9/19/06)
___________

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
___________

COLLOTON, Circuit Judge.

Plaintiffs Stephen Jones and Doyle Clark appeal the district court’s1 grant of
summary judgment to defendants United Parcel Service (“UPS”) and Local 41 of the

1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
International Brotherhood of Teamsters (“Local 41”) on their various claims of
employment discrimination and breach of the duty of fair representation. We affirm.

I.

Jones and Clark were employees at a UPS facility in Lenexa, Kansas. Jones
was a tractor-trailer driver with a daily route (a “bid route”) between Lenexa and
Wichita, Kansas. Clark was a package sorter during the morning shift and a
hazardous materials (“haz-mat”) responder during the day shift. Jones and Clark also
were members of Local 41, the union which represented Lenexa facility employees.

In a previous disciplinary action that is not directly at issue in this case, UPS
terminated Clark for abandoning his job on September 18, 2002. Clark had arrived
early to his shift, and a supervisor invited him to perform overtime work unloading
trailers until his package sorter shift began fifteen minutes later. Clark insisted on
sorting immediately, and when the supervisor denied Clark’s request, he left the
facility. Clark returned six hours later with Jones, acting in his union representative
capacity, but UPS discharged Clark. Clark filed a grievance that day, and along with
union representatives, he met with UPS management. He was reinstated but
sanctioned with a two-day suspension.

On October 16, 2002, UPS terminated Clark again. That morning, Clark’s
supervisors assigned Clark to work as the morning shift haz-mat responder. These
duties required Clark to carry and use a two-way radio. One of Clark’s supervisors
instructed Clark on how to use the radio, but Clark failed to answer any calls despite
repeated attempts by supervisors and managers to call him, and he responded to spills
only when supervisors approached him in person. Clark’s supervisors asked to meet
with Clark and union representative Greg Toplikar at the end of Clark’s shift. Jeff
Johnson, a Lenexa facility morning shift manager, provided Clark with an opportunity
to explain why he refused to use the radio, but Clark became unresponsive and

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belligerent. Johnson terminated Clark because he refused to follow instructions
regarding use of the radio and “was grossly insubordinate in their meeting.” (R. Doc.
No. 320 at xxvi).

Beginning in late-July 2002, UPS management cut Jones’s bid route on twelve
or thirteen occasions, and Jones filed grievances regarding many of these cuts.
Around the same time, Jones, as union steward acting on behalf of other UPS drivers
and on his own behalf, filed several grievances that UPS had routinely used “sleeper
teams” to haul loads assigned to Lenexa facility drivers in violation of the collective
bargaining agreement. A “sleeper team” is a “two-person crew[] that operate[s] over-
the-road tractor trailers,” and “take[s] turns driving . . ., thus, keep[ing] the tractor on
the road longer than could a single driver.” (R. Doc. No. 312 at 39).

UPS terminated Jones on November 12, 2002, for job abandonment. The
previous night, Jones had arrived at work to drive his bid route, but Lavell White, a
manager, and Scott Wetschensky, a dispatch supervisor, cut Jones’s route. They did
so because there were insufficient packages to be delivered on Jones’s normal route,
and because they needed Jones to drive a different route. Jones told Wetschensky that
he planned to go home because his route was cut, to which Wetschensky responded
that leaving would be considered “job abandonment.” Jones expressed to
Wetschensky his view that because his route had been cut, leaving would not be job
abandonment, and Jones returned home rather than drive the alternative route. UPS
management decided to terminate Jones for abandoning his job, and White executed
the discharge the next day.

Local 41 business agents file grievances on behalf of UPS employees who
believe they have been “disciplined unfairly and in violation of the collective
bargaining agreement.” (R. Doc. No. 312 at 4). Agents represent union members
against UPS at local hearings, during which agents meet with UPS representatives to
review the circumstances of the incident leading to the grievance and to discuss

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settlement of the dispute. If a local hearing is unsuccessful in resolving a grievance,
then the agents continue to represent the union members at the next level of review,
before a “Mo-Kan panel.” The Mo-Kan panels are composed of an equal number of
union and UPS representatives selected by the co-chairs of a Missouri-Kansas Joint
Area Grievance Committee (“Mo-Kan Committee”) that is created by the collective
bargaining agreement to oversee the resolution of grievances. UPS and Local 41 each
appoints a co-chair of the Mo-Kan Committee, and these co-chairs select committee
members to sit on Mo-Kan panels and hear specific grievances.

Business agent Clint Long filed grievances on behalf of Jones regarding Jones’s
complaints concerning the cutting of his bid route and the use of sleeper teams, as well
as his November 12 termination. At Jones’s local grievance hearing regarding his
termination, Long requested that Jones be reinstated and presented evidence on
Jones’s behalf. Agents Toplikar and John Thompson similarly represented Clark in
Clark’s grievances for his September 18 and October 16 terminations. UPS upheld
Jones’s November 12 termination and Clark’s October 16 termination at their
respective local hearings, and Local 41 appealed these decisions to Mo-Kan hearing
panels. The Mo-Kan panels upheld UPS’s discharges of Jones and Clark. Each
plaintiff stated at the end of his Mo-Kan hearing that Local 41 business agents had
provided adequate representation.

Jones and Clark then filed this action, alleging that “UPS, with the knowledge,
support[,] or at the suggestion of the Union, terminated [them] in violation of the
collective bargaining agreement with the Union and for improper []or discriminatory
reasons.” (R. Doc. No. 28 at 1). According to the complaint, Jones and Clark were
politically active in Local 41 and opposed to Local 41’s existing leadership. In 2002,
Jones became the campaign manager for a slate of candidates that was nominated to
run against the incumbents, and Clark ran on the opposition slate’s ticket as the
nominee for recording secretary. The complaint alleged that Phil Young, who had
recently resigned as the Local 41 president, was outraged by the issues and

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accusations raised by the opposition slate, and vowed that future candidates would be
prevented from raising such accusations. Clark was elected recording secretary on
October 15, 2002.

Both plaintiffs raised “hybrid” claims against Local 41 and UPS, pursuant to
§ 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, alleging
a breach of the union’s duty of fair representation and a breach of the collective
bargaining agreement by UPS. They also asserted claims against Local 41 under
§ 101 of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29
U.S.C. § 411, alleging a breach of their statutory rights as union members.

Specifically, Jones alleged that beginning in July 2002, UPS began eliminating
his bid route from Lenexa to Wichita at least once per week, and that on November
11, UPS again cut his route and asked him to perform non-emergency alternative work
instead. According to the complaint, Jones elected to go home, and although his
supervisor made no objection, Jones was summarily terminated the next morning for
“job abandonment.” Clark alleged that on the morning of October 16, 2002, he was
assigned to work as a haz-mat responder. He alleged that he was not provided with
a belt clip or other holder for his two-way radio, and that he did not want to put the
radio in his pocket for fear of suffering discipline. Clark alleged that UPS supervisors
later confronted him for refusing to put the radio in his pocket, and that Clark
explained he would not put anything in his pocket that did not belong to him. The
complaint alleges that Clark was then immediately terminated for insubordination.

Plaintiffs alleged that after the 2002 union election, Local 41’s leadership began
“a campaign of retaliation against the [opposition] slate of candidates and Jones.” (R.
Doc. No. 28 at 23-24). They asserted that the union failed adequately to investigate,
pursue, or otherwise process grievances on behalf of Jones and Clark. They further
alleged that the Mo-Kan hearing panels summarily upheld their terminations, (Id. at

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13, 17), and that “the Mo-Kan panel members were appointed or influenced by Union
leadership hostile to [plaintiffs], including Phil Young.”2 (Id. at 13; see also id. at 17).

Alternatively, Jones alleged that UPS terminated him due to his age, in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 623(a)(1),
631(a), the Kansas Age Discrimination in Employment Act, Kan. Stat. Ann. § 44-
1111 et seq., and the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq.,
or in retaliation for blowing the whistle on alleged UPS record-keeping improprieties.
Clark alternatively alleged that UPS terminated him due to age discrimination in
violation of the ADEA, or racial discrimination and harassment, in violation of Title
VII. 42 U.S.C. § 2000e-2(a)(1).

Local 41 filed a motion for summary judgment, and UPS filed two, one against
Jones and one against Clark, and plaintiffs filed a joint response to the three motions,
a document that was 480 pages long. According to the district court, “[m]uch of the
information contained in [plaintiffs’] mendacious recounting of ‘fact’ [in their
response] is either misstated, inadmissible, or wholly unsupported by the record.” The
court provided six examples of errors that it believed were rampant throughout
plaintiffs’ brief, and determined that the brief did not comply with the concision and
specificity requirements of Local Rule 56.1. The court stated that the plaintiffs’
strategy relied “upon neither the trustworthiness of the factual assertions nor the
quality of the arguments, but upon the sheer volume of material impressed upon the
opposing parties and the Court.” Plaintiffs’ brief, in the view of the district court,
“represents a form of litigation by attrition, wherein the practitioner’s intent was to
force the opposition either to yield to its position or be crushed under a great weight
of misstated factual assertions and drowned in a sea of bombast.” The court ruled that

2
Plaintiffs alleged in their complaint that “as part of [its] campaign of
retaliation[,] the Union encouraged and/or pressured UPS into firing Jones and Clark
for pretextual reasons.” (R. Doc. No. 28 at 23-24). On appeal, they cite no evidence
and make no argument in support of this assertion.

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both plaintiffs’ statement of controverted facts and plaintiffs’ response to defendants’
uncontroverted facts “are disregarded as noncompliant with the Local Rules and the
Federal Rules of Civil procedure and, as a result, all factual assertions by Defendants
are deemed as admitted.”

Taking each of the defendants’ statements of uncontroverted facts as admitted,
the court held that plaintiffs could not overcome a motion for summary judgment on
their hybrid LMRA § 301 wrongful termination claims. The court thought their
arguments alleging Local 41 did not adequately represent them were “incredibly
unpersuasive,” and “wholly disingenuous,” since each plaintiff admitted at his
respective Mo-Kan hearing that he was satisfied with the representation provided by
Local 41 business agents. Because plaintiffs could not show that Local 41 breached
its duties of fair representation, their claims against UPS for breach of the collective
bargaining agreement necessarily failed as a matter of law. See Hines v. Anchor
Motor Freight, Inc., 424 U.S. 554, 570-71 (1976). The court also held that Clark’s
hybrid § 301 claim for his September 18 termination was time-barred. See
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 172 (1983) (six-month
limitations period). With respect to Jones’s hybrid § 301 claims involving UPS
cutting his bid route and using sleeper teams to haul his loads, the court concluded that
Jones did not establish a triable issue of fact on whether Local 41 breached its duty of
fair representation. In addition, the court granted summary judgment to defendants
on plaintiffs’ various LMRDA claims, for want of evidentiary support and because the
LMRDA does not provide a remedy for many of the injuries that plaintiffs asserted.

The court also dismissed the various discrimination clams alleged by the
plaintiffs. The court found that neither plaintiff provided sufficient “direct evidence”
of age or race discrimination to create a submissible case, see Griffith v. City of Des
Moines, 387 F.3d 733, 735-36 (8th Cir. 2004), and that plaintiffs also failed to
establish a prima facie case on those claims, as well as on Jones’s whistle-blower

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retaliation claim, under the burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973).

II.

We first consider the district court’s determination to disregard plaintiffs’
statement of controverted facts and responses to defendants’ statements of
uncontroverted facts contained within their 480-page filing. We review that decision
for abuse of discretion. Northwest Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d
721, 725 (8th Cir. 2003).

Local Rule 56.1 places size and content limitations on a non-movant’s response
to a summary judgment motion. W.D. Mo. R. 56.1(a). The rule provides that
“[s]uggestions in opposition to a motion for summary judgment shall begin with a
section that contains a concise listing of material facts as to which the party contends
a genuine issue exists.” Id. It further directs that “[e]ach fact in dispute shall be set
forth in a separate paragraph, shall refer specifically to those portions of the record
upon which the opposing party relies, and, if applicable, shall state the paragraph
number in movant’s listing of facts that is disputed.” Id. The purpose of the rule is
to distill to a manageable volume the matters that must be reviewed by a court
undertaking to decide whether a genuine issue of fact exists for trial. It is designed
“to prevent a district court from engaging in the proverbial search for a needle in the
haystack.” Northwest Bank, 354 F.3d at 725. With both the movant’s list of
uncontroverted facts and the non-movant’s list controverted facts and accompanying
cross-references, including specific citations to the record, the court can focus its
review on materials that may demonstrate a disputed issue for trial.

Notwithstanding this rule, plaintiffs filed a 480-page response to the
defendants’ three motions for summary judgment, which contained 948 statements of
“controverted facts” spanning 168 pages, 179 pages of responses to defendants’

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statements of uncontroverted facts (included many that were not even disputed), and
132 pages of legal argument. It hardly need be stated that this pleading did not
contain a “concise” listing of material facts, as required by Local Rule 56.1(a).

More significantly, plaintiffs’ brief suffers from misleading and inaccurate
statements, and often omits the citations to the record required by the local rule. The
district court correctly listed three examples where the brief materially misstated the
record, (R. Doc. No. 373, Pls.’ Statement of Controverted Facts, ¶¶ 243, 246, Pls.’
Resp. to Local 41’s Statement of Uncontroverted Facts, ¶ 90), and we find several
more where the record material cited provides inadequate support for the asserted
proposition. (R. Doc. No. 373, Pls.’ Statement of Controverted Facts, ¶¶ 17, 29, 39,
51, 68, 69, 117, 121).

The district court also correctly cited three examples of plaintiffs’ fact
statements and responses that contained citation errors. (R. Doc. No. 373, Pls.’
Statement of Controverted Facts, ¶ 228, Pls.’ Resp. to Local 41’s Statement of
Uncontroverted Facts, ¶ 79, Pls.’ Resp. to UPS’s (Clark) Statement of Uncontroverted
Facts, ¶ 50). Again, we have found many more. In some statements, the asserted fact
was not supported by any citation whatsoever. (R. Doc. No. 373, Pls’ Resp. to Local
41’s Statement of Uncontroverted Facts, ¶¶ 8, 9, 22, 36, 38, 47, 102, 111, 199, Pls’
Resp. to UPS’s (Jones) Statement of Uncontroverted Facts, ¶¶ 24, 131). Many other
paragraphs simply cross-referenced statements of controverted facts or responses to
defendants’ uncontroverted facts, in violation of the local rule’s requirement that the
controverted fact “refer specifically to those portions of the record upon which the
opposing party relies.” (See R. Doc. No. 373, Pls.’ Resp. to Local 41’s Statement of
Uncontroverted Facts, ¶¶ 20, 23, 31, 91, 106, Pls.’ Resp. to UPS’s (Clark) Statement
of Uncontroverted Facts, ¶¶ 27, 35, 39, 40, 46, 48, 49, 100-03, 107, Pls.’ Resp. to
UPS’s (Jones) Statement of Uncontroverted Facts, ¶¶ 35, 37, 120-123, 163). In some
instances, even the cross-referenced materials are irrelevant to the proposition
asserted. Other purported statements of controverted fact instead consist of

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impermissible conclusions or legal argument. (R. Doc. No. 373, Pls.’ Resp. to Local
41’s Statement of Uncontroverted Facts, ¶¶ 119, 121, 122, Pls.’ Resp. to UPS’s
(Clark) Statement of Uncontroverted Facts, ¶¶ 7, 17, 23, 28, Pls.’ Resp. to UPS’s
(Jones) Statement of Uncontroverted Facts, ¶¶ 34, 41, 43, 51, 71, 77, 88).

This case thus presents a scenario similar to that in Northwest Bank, where we
held that a district court did not abuse its discretion by deeming the movant’s
statement of material facts admitted as a sanction for the non-movant’s failure to
comply with analogous Local Rules in the Northern and Southern Districts of Iowa.
354 F.3d at 724-25; see N.D. Iowa R. 56.1; S.D. Iowa R. 56.1. In that case, the non-
movant’s voluminous filings, filled with conclusory allegations and legal argument,
did not contain the concision and specificity commanded by the Local Rules.
Northwest Bank, 354 F.3d at 725; see also Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 922 (7th Cir. 1994).

We likewise conclude the district court did not abuse its discretion in
determining that plaintiffs’ statement of controverted facts and response to
defendants’ uncontroverted facts violated Local Rule 56.1, and in disregarding them
as a sanction. As a consequence, the district court properly deemed defendants’
statements admitted. “All facts set forth in the statement of the movant shall be
deemed admitted for the purposes of summary judgment unless specifically
controverted by the opposing party,” W.D. Mo. R. 56.1(a), and the plaintiffs failed to
provide a pleading in accordance with the rules that controverted any of the movants’
facts.

Plaintiffs argue that the district court was required to give specific notice that
they violated the local rule before disregarding their response. We believe the local
rule itself provides adequate notice of the requirements to which a party must adhere.
The district court is not required to study laboriously a 480-page pleading and the
record materials cited therein to determine that it is non-compliant with the rules, and

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then afford the party another opportunity to file a pleading that complies. This is not
a case of a district court nit-picking a party for technical violations of a local rule. The
non-compliance was substantial, and it was not an abuse of discretion for the district
court to disregard the pleading without further give-and-take with the plaintiffs.

III.

Having concluded that the district court properly disregarded factual portions
of plaintiffs’ response, we consider de novo the court’s determination to grant
summary judgment on the remaining record. See Johnson v. Ready Mixed Concrete
Co., 424 F.3d 806, 810 (8th Cir. 2005) (standard of review).

A.

Plaintiffs contend that summary judgment was inappropriate on Jones’s age
discrimination and whistle-blowing retaliation claims, and on Clark’s claims of age
and race discrimination. Because we agree with the district court that neither plaintiff
has introduced strong evidence showing a specific link between an alleged
discriminatory animus and the challenged decisions, plaintiffs’ claims are analyzed
under the burden-shifting framework set forth in McDonnell Douglas. 411 U.S. at
802-04; see Griffith, 387 F.3d at 735-36. According to UPS, it “terminated Clark for
insubordination and failure to follow instructions.” Similarly, UPS “terminated Jones
for job abandonment after he refused to work as instructed on November 11, 2002.”
These are legitimate, non-discriminatory explanations. See Kiel v. Select Artificials,
Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc); Putman v. Unity Health Sys., 348
F.3d 732, 736 (8th Cir. 2003).

Because UPS fully developed the record for summary judgment, providing
legitimate, non-discriminatory, non-retaliatory reasons for terminating plaintiffs, we
may turn directly to the ultimate question of whether UPS engaged in intentional

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discrimination. Ready Mixed, 424 F.3d at 810; see U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983). Whereas plaintiffs need only make a minimal
showing to establish the prima facie case, see Sprenger v. Fed. Home Loan Bank of
Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001), more substantial evidence of
discrimination is required to prove pretext, because evidence of pretext is viewed in
the light of UPS’s legitimate, non-discriminatory explanation. Id. To succeed at this
stage of the McDonnell Douglas analysis, plaintiffs must prove that the prohibited
reason was a determinative factor in UPS’s decision to terminate. Cronquist v. City
of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001); see also Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993).

The ADEA prohibits employers from discharging employees on account of age
if they are older than forty years, 29 U.S.C. §§ 623(a)(1), 631(a), and Title VII
prohibits discrimination on account of race. 42 U.S.C. § 2000e-2(a)(1). Clark, who
was in his early 40s at the time of his termination, asserts that his age and race had
determinative effect on UPS’s decisions to terminate him, but no evidence in the
remaining record supports his assertions. Rather, the evidence supports UPS’s
legitimate, non-discriminatory justification for terminating Clark. Clark initially
refused to carry the two-way radio provided by his managers, and he failed to respond
to at least six calls. Although Clark asserts that his radio malfunctioned throughout
his shift, the record indisputedly supports the conclusion that his radio operated
properly. (R. Doc. No. 320 at xxiii-xxiv). Furthermore, Clark was insubordinate
when he met with management after completing his shift. The record is devoid of any
evidence suggesting that race or age had a determinative effect on UPS’s decision to
terminate Clark.

Clark also alleges that UPS subjected him to a racially hostile work
environment, in violation of Title VII. 42 U.S.C. § 2000e-2(a)(1); see Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A plaintiff alleging an unlawfully hostile
work environment must show a workplace “permeated with discriminatory

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intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Harris, 510 U.S. at 21 (internal quotations omitted). To be actionable, the
environment must objectively be hostile or abusive, and the employee must
subjectively perceive it as such. Id. at 21-22. Clark has presented no evidence that
he subjectively perceived the Lenexa facility as hostile. The record shows that Clark
never filed any grievances about racial harassment while at the Lenexa facility. And
there is no evidence of record that UPS personnel made racially derogatory comments
in Clark’s presence. See Williams v. ConAgra Poultry Co., 378 F.3d 790, 795 (8th
Cir. 2004).

Jones, who was in his late 40s at the time he was terminated, argues that age
was the but-for cause of his termination, in violation of the ADEA, 29 U.S.C.
§§ 623(a)(1), 631(a), the Kansas Age Discrimination in Employment Act, Kan. Stat.
Ann. § 44-1110 et seq., and the Missouri Human Rights Act. Mo. Rev. Stat.
§ 213.010 et seq. Age discrimination claims under the MHRA and KADEA proceed
under the McDonnell Douglas framework when a federal ADEA claim alleged in the
same case proceeds in that manner. Fast v. S. Union Co., Inc., 149 F.3d 885, 889 (8th
Cir. 1998); Elza v. Kock Indus., Inc., 16 F. Supp. 2d 1334, 1340 (D. Kan. 1998).

Jones argues that UPS’s stated reasons for his termination were a pretext for age
discrimination. He argues that other feeder drivers committed similar infractions by
refusing to drive alternative routes, but were not disciplined, and that this differential
treatment supports an inference of age discrimination. There is no evidence, however,
that drivers who were assigned to drive an alternative route, and then refused to work,
were allowed to pursue that course without discipline. Similarly, Jones alleges that
numerous other feeder drivers who engaged in more egregious misconduct had been
reinstated, but again, there is no evidence that other drivers were disciplined
differently for abandoning their jobs. See Cherry v. Ritenour Sch. Dist., 361 F.3d 474,
479 (8th Cir. 2004).

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 Finally, Jones alleges that he was the only driver to have his bid route cut more
than a couple of times in 2002. That assertion itself implies that the other members
of his protected class – all of the company’s other drivers over the age of forty – were
not treated differently than younger drivers, see Harris v. Hays, 452 F.3d 714, 718-19
(8th Cir. 2006), and is consistent with evidence that Lenexa facility drivers were
treated the same regardless of age. (R. Doc. No. 321 at xx). The evidence is clear,
moreover, that Jones was not similarly situated to most other feeder drivers at the
Lenexa facility. His bid route was the last of six hauls driven from Lenexa to Wichita
each day, and his route was commonly cut on Fridays for reasons peculiar to his route
– volume tended to be lower, and some of the loads that would have been assigned to
Jones to haul on Friday evening were not due in Wichita until Sunday or Monday.

Jones’s Kansas state law whistleblower retaliation claim also is analyzed under
the McDonnell Douglas framework. See Boe v. AlliedSignal, Inc., 131 F. Supp. 2d
1197, 1203 (D. Kan. 2001). To allege an actionable whistleblower retaliatory
discharge claim in Kansas, the employee must establish that “the alleged irregularities
amounted to violations of rules, regulations, or the law pertaining to public health,
safety, and the general welfare.” Herman v. W. Fin. Corp., 869 P.2d 696, 704 (Kan.
1994) (internal quotations and citations omitted). Even assuming for the sake of
argument that retaliatory animus for Jones’s report of record-keeping irregularities
was a determinative factor in UPS’s decision to terminate him, Jones has provided no
evidence that these irregularities amounted to violations of public health and safety
laws or regulations. In fact, the record evidence is undisputed that the records Jones
alleges UPS falsified are maintained exclusively for UPS internal purposes.

B.

Plaintiffs also allege that UPS breached its collective bargaining agreement with
Local 41, and that Local 41 breached its duties of fair representation owed to the
plaintiffs, in violation of § 301 of the LMRA. They both claim that UPS violated the

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contract by terminating them based on age or in retaliation for their union activities,
and Clark also alleges that race motivated UPS. They further assert that Local 41
agents inadequately represented plaintiffs in their wrongful termination grievances.
Additionally, Jones alleges that Local 41 failed to represent adequately his claims that
UPS violated the agreement by routinely cutting his bid route, and by using sleeper
teams to haul packages that Jones otherwise would have been responsible to carry.3

“Section 301 contemplates suits by and against individual employees as well
as between unions and employers,” and “encompass[es] those seeking to vindicate
‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and
wrongful discharge.” Hines, 424 U.S. at 562. As the exclusive bargaining agent in
the negotiation and administration of a collective bargaining agreement, the union
assumes the responsibility and duty of fair representation for all of its members.
Humphery v. Moore, 375 U.S. 335, 342 (1964). Section 301 thus permits an action
against the union for breach of its duty of fair representation, and an action against the
employer for breach of the collective bargaining agreement. A party seeking to
recover on a “hybrid” § 301 claim against the employer must prove both that the
employer violated the collective bargaining agreement and that the union breached its
duty of fair representation, assuming the employee has exhausted his contractual
grievance remedies. Vaca v. Sipes, 386 U.S. 171, 186-87 (1967); Waldron v. Boeing
Co., 388 F.3d 591, 594 (8th Cir. 2004). A union breaches its duty of fair
representation only when its conduct toward a member is “arbitrary, discriminatory,
or in bad faith,” Vaca, 386 U.S. at 190; Buford v. Runyon, 160 F.3d 1199, 1202 (8th
Cir. 1998), or so unreasonable as to be “irrational.” Air Line Pilots Ass’n, Int’l v.
O’Neill, 499 U.S. 65, 78 (1991). “Mere negligence, poor judgment, or ineptitude by
a union is insufficient to establish a breach of the duty of fair representation.” Buford,
160 F.3d at 1202.

3
Clark alleges that Local 41 failed to represent him adequately in his wrongful
termination claim arising from his September 18 termination, but the district court
correctly concluded this claim was time-barred. See DelCostello, 462 U.S. at 172.

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 We need not decide whether UPS violated the collective bargaining agreement
by terminating Jones or Clark out of a retaliatory or discriminatory motive, because
plaintiffs on this record have not provided sufficient evidence to generate genuine
issues of fact that Local 41 breached its duties of fair representation. Plaintiffs alleged
that Local 41’s investigations of each discharge were so inadequate as to “actually
taint[] the grievance process.” Yet at Clark’s Mo-Kan panel hearing, Local 41
business agent Toplikar testified on Clark’s behalf that the radio Clark was given did
not work properly. Agent Thompson argued that Clark responded to all spills of
which he was made aware, and that management “twisted” Clark’s responses in his
post-shift meeting into insubordination. Clark also testified on his own behalf.

Similarly, agent Long represented Jones at his Mo-Kan hearing after several
phone conversations and a thirty-minute meeting between the two the morning of the
hearing. Prior to the hearing, Long spoke with three drivers whose testimony Jones
considered instrumental to his success, and Long researched a case Jones thought may
have had precedential value. Long presented the statement of a driver who had been
given the option of going home when his route was cut, and Long stated that Jones
had a 28-year career at UPS without a significant disciplinary history. Jones also
testified on his own behalf.

Union representatives are not lawyers and are not held to the same standards in
presenting cases as attorneys. Buford, 160 F.3d at 1203. We have no difficulty
concluding that Local 41’s representation was not in breach of its duties. Indeed,
Jones and Clark each stated to their respective Mo-Kan panels that Local 41 afforded
them adequate representation.

Plaintiffs also suggest that UPS management conspired with Local 41 executive
board members to retaliate against plaintiffs, that the Local 41 executive board
prevented the union’s business agents from fully performing their jobs, and that the
Mo-Kan panel predetermined Jones’s case and failed to give him a proper hearing.

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They cite the temporal proximity between the terminations and Clark’s election as
recording secretary on the slate opposing Local 41’s incumbent president, their long
records of service to UPS spanning over twenty years, and what they view as
terminations for relatively minor misconduct. Clark, of course, had been disciplined
once before for job abandonment, so it is difficult to view his second infraction as
anything approaching de minimis.

In any event, what is missing from the record – disregarding the plaintiffs’ non-
compliant response to the motions for summary judgment – is any evidence that Local
41 did anything “arbitrary” or “irrational,” or conspired with UPS in executing an
alleged retaliatory scheme. Under the LMRA, plaintiffs are obliged to establish both
that UPS retaliated and that Local 41 breached its duties of fair representation. See
Vaca, 386 U.S. at 186-87. There is insufficient evidence to show that the business
agents performed inadequately in representing Jones and Clark. The union
membership on the Mo-Kan panel was drawn from Teamsters units other than Local
41, (R. Doc. No. 312 at 19, 32), and there is no evidence of record that the Mo-Kan
members were influenced by the leadership of Local 41 to retaliate against Jones and
Clark, or that the Mo-Kan panel members otherwise carried out their duties in bad
faith. The mere fact that the leadership of Local 41 was opposed to Clark in a union
election is insufficient to support an inference that Mo-Kan panel members, drawn
from different Teamsters units, acted in bad faith when considering the company’s
disciplinary action against Jones and Clark.

Jones’s claims concerning elimination of his bid route and the use of sleeper
teams similarly suffer from a lack of record support. Jones argues that Local 41 failed
to investigate, postponed presenting the grievances to the Mo-Kan panel, and erred by
not consolidating these grievances with his termination grievance. At the local
hearing for Jones’s first bid route elimination grievance, however, Long negotiated
with UPS management to have Jones drive empty trailers from Wichita to Lenexa, and
Jones agreed that this was a satisfactory settlement. Jones’s grievances for subsequent

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cuts could not be resolved locally, and Long prepared to argue Jones’s grievances
before the Mo-Kan panel. Neither Long nor Jones could find any evidence that
Jones’s regular route was handled by drivers with less seniority, in violation of the
collective bargaining agreement, and Long postponed presenting Jones’s case in the
hopes of discovering such evidence. Long withdrew the grievances in January 2003,
because he had not discovered the evidence he sought, and because the Mo-Kan panel
had already upheld Jones’s November 12 termination. An individual employee does
not have an absolute right to have his grievance taken to arbitration, see Vaca, 386
U.S. at 191, and Long’s decisions about the handling of these grievances do not
support a claim that Local 41 breached its duty of fair representation.

Similarly, no evidence supports Jones’s assertion that Local 41 acted in an
arbitrary or discriminatory manner in pursuing his sleeper team grievances. Pursuant
to the collective bargaining agreement, a joint committee comprised of Teamster and
UPS representatives approves the use of sleeper team routes, including the route that
was the subject of Jones’s complaints. Jones does not argue that the joint committee
approved a particular sleeper team route in violation of the collective bargaining
agreement, but rather that UPS violated the agreement by using an approved team to
haul packages that Jones otherwise would have been responsible to haul. Long
presented Jones’s grievance to the Mo-Kan panel, and was told at the hearing that the
joint committee overseeing sleeper teams had jurisdiction to resolve the dispute. A
UPS panel member also explained that if sleeper teams did not haul the cargo in
question, then it would be hauled by train, not by Jones. In light of this information,
and because the joint committee already had approved the sleeper team route, Long
decided not to docket Jones’s sleeper team grievances with the joint committee
overseeing sleeper teams. Long’s decision does not support a claim that Local 41
breached its duty of fair representation.

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 C.

Finally, plaintiffs allege a variety of breaches by Local 41 of the LMRDA.
Title I of the LMRDA, the union workers’ “Bill of Rights,” protects the rights of
union members to vote and participate in union decisions, insulated from improper
disciplinary action. 29 U.S.C. § 411(a); Bradley v. Am. Postal Workers Union,
AFL-CIO, 962 F.2d 800, 801 (8th Cir. 1992); see also Wirtz v. Hotel, Motel & Club
Employees Union, Local 6, 391 U.S. 492, 497-98 (1968).

Plaintiffs claim that Local 41 deliberately undermined their grievances
challenging the terminations. The district court was correct to conclude that these
claims essentially contain the substance of plaintiffs’ § 301 claims against Local 41.
Because plaintiffs were unable to establish that Local 41 breached its duties of fair
representation, the claims involving that representation raised under § 101 of the
LMRDA also fail.4 Plaintiffs also allege that Local 41 violated the LMRDA by failing
to find them alternative employment so that they could retain their union membership.
They point to nothing in the text of the LMRDA or any case law, however, supporting
the proposition that Local 41 had an affirmative duty under the statute to assist
plaintiffs in securing new employment so that they could maintain their union
membership.

Clark further alleges that Local 41 violated the LMRDA by trying to expel him
for failing to pay dues. The LMRDA, however, clearly contemplates that a union may
fine, suspend, expel, or otherwise discipline a member for nonpayment of dues. 29
U.S.C. § 411(a)(5). Moreover, an LMRDA claim is only actionable when the member

4
Clark’s claim that Local 41 inadequately represented him in his grievance over
his September 18 termination, although time-barred for § 301 purposes, was timely
filed for LMRDA purposes. See Marshall v. Local Union No. 6, Brewers & Maltsters
& Gen. Labor Dep’ts, 960 F.2d 1360, 1367 (8th Cir. 1992). Nevertheless, the record
evidence is insufficient for Clark to overcome a motion for summary judgment.

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demonstrates a direct interference with his vested rights, see Franza v. Int’l Bhd. of
Teamsters, Local 671, 869 F.2d 41, 47 (2d Cir. 1989), and Local 41 did not actually
discipline Clark for failing to pay dues, but merely threatened to take action, thereby
providing Clark with incentive to satisfy his financial obligation.

Clark’s other claim under the LMRDA is that Local 41 maliciously prosecuted
him before the Teamsters joint resolution panel, and that he was injured because the
joint council refused to dismiss charges of misuse of union funds and nonparticipation
in union events prior to holding a hearing. As with his payment-of-dues claim, Clark
has not alleged any direct interference with vested rights, because he was not
disciplined. The responsibility to defend oneself at a hearing is not tantamount to
discipline.

* * *

For the foregoing reasons, the judgment of the district court is affirmed.

HEANEY,Circuit Judge, concurring in part and dissenting in part.

I agree with the majority that the district court was within its discretion to
impose sanctions for the plaintiffs’ failure to comply with local rules of procedure,
and further agree that the district court properly granted summary judgment on the
race discrimination, age discrimination, and whistleblower claims. In my view,
however, the plaintiffs presented sufficient evidence to create a jury question on the
issue of whether they were terminated in retaliation for their union activities.
Accordingly, I dissent from the portion of the majority’s opinion affirming the grant
of summary judgment in favor of the defendants on these claims.5

5
Both the district court and the majority declined to reach the issue of whether
UPS violated the collective bargaining agreement, because they found no breach of
the union’s duty of fair representation, a necessary precondition to prevailing on a

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 The uncontroverted facts presented to the district court were as follows: Both
Stephen Jones and Doyle Clark were long-time employees of UPS, enjoying tenures
of roughly twenty-eight and twenty-three years, respectively. Jones had never
experienced significant disciplinary problems; Clark had been fired and reinstated
once in 1997. It was not until Jones and Clark embroiled themselves in a contested
union election that either faced further discipline.

Jones and Clark were vocally critical of the union administration and actively
campaigned for opposition candidates. Clark, in fact, campaigned for and was elected
to the position of recording secretary. The timing of critical events with regard to
their political activities and their discipline clearly raises an inference that Jones and
Clark suffered adverse employment effects as a consequence of their opposition to the
incumbent union administration. Clark was nominated as a candidate for the position
of recording secretary on September 14, 2002; four days later, he was suspended two
days for job abandonment.6 On October 15, 2002, the union election was held, and
Clark was elected recording secretary. He was fired the next day. Less than a month
later, Jones, who actively campaigned for the opposition slate of candidates, was fired.
In his prior twenty-eight years of service, Jones presented no meaningful disciplinary
concerns.

Moreover, the reasons given for terminating each employee were suspect.
Clark was fired for “insubordination towards management” relating to his assignment
as a haz-mat responder. (Local 41 App. at 11.) Specifically, he committed the
offenses of not using his two-way radio during a shift, and acting insubordinately
during a meeting with his supervisor regarding the two-way radio. Although

hybrid § 301 claim. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71
(1976). Accordingly, I focus my dissent on this point of disagreement.
6
Clark was initially fired, but was able to reach a resolution with UPS whereby
he was reinstated after a two-day suspension.

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management characterized the failure to carry the two-way radio as a serious offense
that endangered Clark’s fellow employees, Clark was not disciplined until his shift
was over. The insubordination charge was based primarily on an exchange in which
Clark’s supervisor repeatedly asked if Clark carried the radio in his pocket, and Clark
repeatedly answered that he did not put things that did not belong to him in his
pockets. For this, UPS ended Clark’s twenty-three year career with the company.

Jones was fired after a dispute regarding his route as a driver. He typically
drove a route from Lenexa to Wichita, Kansas. In the months prior to his termination,
Jones’s Wichita route was increasingly cut. When that happened, he was usually
given the option of driving another route or going home. When his route was cut on
November 11, 2002, however, Jones was asked to drive another route. Instead, Jones
opted to go home–an option indisputably open in the past. His view was that this was
not job abandonment because his job was to drive the Wichita route, and it was not
available. In other words, his job was cut, so there was no job for him to abandon.
Jones’s supervisor claimed to have disagreed with this interpretation, but he assisted
Jones with clocking out when the electronic time clock gave him trouble. The
supervisor did not call a manager or union steward to resolve the conflicting
interpretation, and Jones was allowed to leave without incident or warning of potential
future discipline. The next day, when Jones arrived at work, he was informed that
UPS disagreed with his interpretation of what constituted job abandonment. As
discipline, the company terminated a person who had given it nearly thirty years of
service.

From this evidence, one could certainly conclude that Jones’s and Clark’s
terminations were not wholly justified, but were rather the products of collusion
between UPS and local union members to remove Jones and Clark for their union-
based political activities. Evidence of their political activity or the split factions

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within Local 41, however, was never adequately presented to the Mo-Kan panel.7 In
fact, it was not addressed at all by either the company or the union’s business agents.8
The business agents’ failure in this regard qualifies as perfunctory treatment that,
when considered contextually, supports the inference that bad faith motivated the
union’s representation of Jones and Clark. See Vaca v. Sipes, 386 U.S. 171, 177, 194
(1967) (holding that bad faith conduct or the processing of a grievance in a
perfunctory manner breaches the union’s duty of fair representation). Thus, I
respectfully dissent from that portion of the majority opinion affirming the district
court’s holding that Jones and Clark failed to make a case that they were dismissed
in retaliation for their union activities.
______________________________

7
The Mo-Kan panel is the appellate body for grievances such as those in this
case. That panel is made up of six members: three from the company and three from
the union. An aggrieved employee is bound by the decision of the Mo-Kan panel
unless it deadlocks. I question whether this structure truly affords the aggrieved party
a fair review of their dispute, for the panel is comprised of people with an interest in
the outcome of each case. I recognize that often the decisionmaker’s interest may be
attenuated because union panel members are chosen from different local unions than
the aggrieved employee, but still believe this panel is no substitute for a truly
independent body. See Gen. Drivers Union, Local 554 v. Young & Hay Transp. Co.,
522 F.2d 562, 567 n.5 (8th Cir. 1975) (Heaney, J.) (noting, for the court, “serious
reservations” with regard to the Teamsters’ joint grievance committee composition
because “[t]he opportunities for discrimination against the dissident employee with
a legitimate grievance or the small employer in competition with those who help
control the joint panel are too real to be ignored”). Although the Supreme Court and
our court have equated this procedure to arbitration, Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, 557 n.2, 562-64 (1976); Tongay v. Kroger Co., 860 F.2d 298, 300
(8th Cir. 1988), I continue to harbor my own doubts.
8
Each employee was permitted to present any evidence they wished at the Mo-
Kan hearing, and each stated they were satisfied with the union’s representation.
Certainly, this evidence weighs in favor of the union’s position that it fairly
represented Jones and Clark. It is not dispositive, however, given the evidence
summarized above regarding how closely the employees’ terminations coincided
temporally with their activities in opposition to the union leadership.

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