FILED
NOT FOR PUBLICATION
FEB 23 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN HARTER, No. 21-35129
Plaintiff-Appellant, D.C. No. 2:19-cv-00161-RMP
v.
MEMORANDUM*
UNITED STATES POSTAL SERVICE;
NATIONAL ASSOCIATION OF
LETTER CARRIERS, AFL-CIO,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted February 8, 2022**
Seattle, Washington
Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
Ryan Harter appeals the district court’s order granting summary judgment to
the National Association of Letter Carriers (NALC) on his duty-of-fair-
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
representation claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.1
Harter argues on appeal that NALC breached the duty of fair representation
in two ways: (1) by his union representative (Ray) confirming to Harter’s work
supervisor (Dokken) after an investigative interview that Harter said he “drove
back” from California; (2) by Ray not reporting to the union-branch president
(Pardick) that Dokken mentioned the possibility of a settlement offer without a
“last chance”2 provision in the Informal Step A meeting.3
Our review of a union’s duty of fair representation is narrow in order to give
“substantial deference” to unions concerning how they represent their members.
See Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985) (quoting Johnson v.
1
Because the parties are familiar with the facts, we recite only those
necessary to decide this appeal.
2
The district court understood a “last chance” provision as an
agreement between an employer and an employee whereby the employee agrees to
follow the rules of the agreement and a violation of those rules can lead to the
removal of the employee at the discretion of management.
3
Harter also argues that Dokken acted improperly by revising his notes
after Ray confirmed what she had heard Harter say. But Harter makes no legal
argument that any impropriety by Dokken is a basis for relief. We therefore deem
this issue waived. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)
(“Arguments made in passing and not supported by citations to the record or to
case authority are generally deemed waived.” (citing United States v. Williamson,
439 F.3d 1125, 1138 (9th Cir. 2006))).
2
U.S. Postal Serv., 756 F.2d 1461, 1466 (9th Cir. 1985)). If a union’s conduct was
ministerial, a plaintiff may prevail only if the union’s conduct was arbitrary,
discriminatory, or in bad faith. Wellman v. Writers Guild of Am., W., Inc., 146
F.3d 666, 670 (9th Cir. 1998) (quoting Marino v. Writers Guild of Am., E., Inc.,
992 F.2d 1480, 1486 (9th Cir. 1993)). If a union’s conduct involved judgment, a
plaintiff may prevail only if the union’s conduct was discriminatory or in bad faith.
Id. (quoting Marino, 992 F.2d at 1486). Harter concedes that Ray’s conduct did
not involve judgment and argues that Ray acted arbitrarily. Conduct is “arbitrary”
only when it is “so far outside a ‘wide range of reasonableness’ as to be irrational.”
Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (internal citation
omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). Harter
has the burden of establishing that NALC’s conduct was arbitrary. See Demetris v.
Transp. Workers Union of Am., AFL-CIO, 862 F.3d 799, 805 (9th Cir. 2017)
(citing Beck v. United Food & Com. Workers Union, 506 F.3d 874, 879 (9th Cir.
2007)).
We conclude that Harter fails to establish that NALC’s conduct was
arbitrary. During the investigative interview, Dokken asked Harter how he had
returned from a trip to California. Dokken noted Harter’s response as “flew down
and drove back”; Ray noted Harter’s response as “Fly down drove back.” After
3
the meeting concluded, Dokken asked Ray whether she heard Harter say that he
drove back from California, and Ray answered affirmatively. Indeed, Harter later
affied that he said “I drove back” during the interview.4 Harter cites no authority
supporting his contention that a union representative acts arbitrarily by confirming
her firsthand experience. Nor does Harter otherwise establish that Ray acted
irrationally by doing so. See Air Line Pilots Ass’n, Int’l, 499 U.S. at 67.
Harter has not shown that he was prejudiced by Ray’s statement because: (1)
Harter does not dispute that NALC argued through multiple levels of proceedings
that, despite his ambiguous statement, Harter did not drive back from California;
and (2) Harter has not established that but for Ray’s statement, the outcome of the
arbitration would have differed, see McIndoe v. Huntington Ingalls Inc., 817 F.3d
1170, 1173 (9th Cir. 2016) (explaining that speculative arguments are insufficient
to defeat summary judgment (citing R.W. Beck & Assocs. v. City & Borough of
Sitka, 27 F.3d 1475, 1480 n.4 (9th Cir. 1994))).
During the Informal Step A meeting, Dokken discussed with Ray the
possibility of a settlement offer without a “last chance” provision, but Dokken only
4
For this reason, Harter’s reliance on Tolan v. Cotton, 572 U.S. 650
(2014), to argue that a factual dispute should have prevented summary judgment in
this case is inapt. Here, though there might have been a dispute as to whether
Harter actually drove back from California, there is no dispute that Ray accurately
noted his response to the interviewer’s question.
4
offered to resolve Harter’s grievance by reducing his termination to a 14-day
suspension with a “last chance” provision. Ray did not communicate the
possibility of an offer with more favorable terms. But Harter has not shown that he
was prejudiced by Ray’s failure to communicate the potential offer because the
more favorable offer was actually extended at the Formal Step A meeting, and
Pardick rejected it. Harter does not dispute that Pardick had authority to reject the
offer.
For these reasons, the district court did not err by dismissing Harter’s
duty-of-fair-representation claim against NALC. The district court dismissed with
prejudice Harter’s contract claim against the United States Postal Service because
it was dependent upon Harter’s duty-of-fair-representation claim. Because we
conclude that the district court did not err by dismissing Harter’s
duty-of-fair-representation claim, and because Harter did not discuss his contract
claim on appeal, we affirm the district court’s dismissal of Harter’s contract claim.
AFFIRMED.
5