USCA1 Opinion

April 19, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 95-2152

ANDREW P. LORE,

Plaintiff, Appellant,

v.

MARVIN T. RUNYON, POSTMASTER GENERAL, UNITED STATES POSTAL

SERVICE AGENCY AND VINCENT SOMBROTTO, PRESIDENT NATIONAL

ASSOCIATION OF LETTER CARRIERS,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

Andrew P. Lore on brief pro se.

______________
Donald K. Stern, United States Attorney, and
_______________

George B. Henders
_________________

II, Assistant U.S. Attorney, on brief for Marvin T. Runyon, Postmas

__
General, appellee.

Peter D. DeChiara, Cohen, Weiss and Simon, Christopher N. Sour

_________________ _______________________ ___________________
and

Feinberg, Charnas & Birmingham, P.C.

______________________________________

on

brief for

Vincent

Sombrotto, appellee.

____________________

____________________

Per Curiam.
__________

Appellant Andrew Lore appeals from the

grant of summary judgment in favor of Marvin Runyon, Jr., the

United

States

President

(NALC).

of

Postmaster

General, and

the National

Association

Vincent

Sombrotto,

of Letter

Carriers

We affirm for the following reasons.

1.

To

the extent Lore's

suit was

based on the

claim

that the United States Postal Service failed to pay him fully

for

his

arbitrate

military leave

that issue,

court correctly

it was

explained in

1995.

We note as well

that

NALC's

discriminatory

in 1993

refusal

and

that NALC

time-barred, as

refused to

the district

its order dated

September 15,

that Lore offered no evidence showing

to

or undertaken

arbitrate

in bad faith.

U.S. Postal Service, 985 F.2d 9,

___________________

was

See
___

arbitrary,

Miller v.
______

11 (1st Cir. 1993) (a union

breaches its duty of fair representation only if

is arbitrary,

discriminatory

or in

marks and citation omitted).

evidence

claims

that its

and

undertaken in

against

plaintiff's

appellees

failure

to

faith)

(quotation

To the contrary, NALC submitted

showing

reasonable

bad

its conduct

decision

were

good

not

to arbitrate

faith.

Hence,

meritless.

establish

the

See
___

union's

was

Lore's

id.
___

(a

unfair

representation defeats his connected breach of contract claim

against his employer).

2.

To the

extent Lore's suit asserted that

Service had breached

its collective bargaining

-2-

the Postal

agreement by

deducting time spent on military leave

without

his prior consent

arbitrated

exhaust

that issue,

from his annual leave

and that NALC

it was

available contractual

dismissable for

remedies.

England Millwork Distributors, Inc., 602

_____________________________________

Cir. 1979).

At the time Lore

had not vigorously

failure to

See Hayes
___ _____

v. New
___

F.2d 15,

18 (1st

filed suit, arbitration on the

annual

leave issue was pending.

documented

any specific

unreasonably

Lore has

action

not described or

or inaction

delayed the arbitration

by NALC

which

and which might excuse

his obligation to exhaust his contractual remedies.

3.

Lore's claim

discrimination

on

amounted essentially

the

of

discrimination did

basis

of a

protected

to a claim that the

not

assert

status,

but

Postal Service had

treated him differently than it had treated another employee.

Such a claim

is not actionable.

F.2d 517, 520-21 (1st Cir. 1990).

Affirmed.
_________

See Jensen
___ ______

v. Frank,
_____

912

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