Gore v. Sea Land Services ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CLEVELAND GORE,
Plaintiff-Appellant,
v.
SEA-LAND SERVICES, INCORPORATED,
No. 94-2065
Defendant-Appellee,
and
ILA, LOCAL 1422-A,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-93-473-18-2)
Submitted: April 4, 1995
Decided: January 16, 1996
Before WILKINSON and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Cleveland Gore, Appellant Pro Se. William Hutchinson Vaughan, Jr.,
VAUGHAN & LAWRENCE, Charleston, South Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Cleveland Gore appeals from the district court's orders granting
partial summary judgment and entering judgment on the jury verdict
for the Defendant against his claims under the National Labor Rela-
tions Act. We affirm.
Gore had alleged eleven causes of action against Sea-Land Ser-
vices, Inc. ("Sea-Land"), and International Longshoremen's Associa-
tion, Local 1422-A ("the union") arising out of his alleged wrongful
termination from the employ of Sea-Land and the union's alleged
breach of its duty of fair representation related to his termination. The
parties consented to summary judgment on seven of the causes of
action alleged in Gore's complaint. The district court entered judg-
ment on two of the claims, determining that Gore was not a "seaman"
under the Jones Act (46 App. U.S.C.A. § 688 (West Supp. 1994)),
upon which those claims were predicated. The court determined that
Gore's claims for breach of the employment contract and wrongful
discharge were subject to the six-month statute of limitations of the
National Labor Relations Act ("NLRA"). Finding a material factual
issue as to when Gore knew or reasonably should have known "that
the union grievance procedure had broken down to his disadvantage,"
the court denied summary judgment on these claims.
At the conclusion of the jury trial on the limited issue of whether
Gore's claims under the NLRA were barred by the six-month statute
of limitations, the jury returned a verdict in favor of Sea-Land. Gore,
who was represented by counsel at trial, did not move for judgment
as a matter of law, and he made no post-trial motions. Gore then
appealed, arguing that the verdict was against the weight of the evi-
dence, the jury considered improper evidence in reaching the verdict,
the verdict was the result of impermissible speculation or sympathy,
and his attorney failed to move for judgment as a matter of law.
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To recover under the Jones Act, the individual must be more or less
permanently assigned as a member of the crew of a vessel or fleet in
navigation, and his duties must contribute to the function of the ves-
sel. Stephenson v. McLean Contracting Co., 863 F.2d 340, 341 (4th
Cir. 1988) (per curiam), cert. denied, 490 U.S. 1085 (1989). Gore
admitted that he is not assigned to any vessel in the fleet, he was per-
manently assigned to the shore station, and he never went to sea in
any of the vessels. On these undisputed facts, we find that the district
court properly determined that Gore was not a seaman. We therefore
affirm the order granting partial summary judgment.
Gore's contentions that the verdict was against the weight of the
evidence, that the jury considered improper evidence in reaching the
verdict, and that the verdict was the result of impermissible specula-
tion or sympathy are properly asserted in either a motion for judgment
as a matter of law or for a new trial. By failing to present the appro-
priate motions to the district court, Gore failed to preserve these
issues for our review. See Bristol Steel & Iron Works, Inc. v. Bethle-
hem Steel Corp., 41 F.3d 182, 186-87 (4th Cir. 1994); Tights, Inc. v.
Acme-McCrary Corp., 541 F.2d 1047, 1058 (4th Cir.), cert. denied,
429 U.S. 980 (1976). Finding no plain error, we affirm.
Moreover, contrary to Gore's contention, the verdict was supported
by the evidence. See Glasser v. United States , 315 U.S. 60, 80 (1942);
Bristol Steel & Iron Works, 41 F.3d at 187-88. The jury heard evi-
dence that due to Gore's unexcused absences, Sea-Land terminated
Gore's employment. The union filed a grievance on Gore's behalf.
The attorney for the union wrote to Gore advising him that the griev-
ance had been unsuccessful and to seek employment elsewhere. Gore
did not request that the grievance decision be appealed. Rather, he
wrote to union officials and to the National Labor Relations Board
("NLRB") alleging that the union failed to represent him and con-
spired with his employer to remove him from his employment. The
NLRB responded by sending Gore documents and information
needed to file a claim against the union or its agents and advised Gore
that the NLRA contains a six-month statute of limitation. Despite this
notice, Gore did not pursue his claim.
On December 19, 1990, Gore wrote a letter to the union requesting
reinstatement of his employment. He asserted that his termination was
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partly due to his arrest and that he has now been acquitted. Sea-Land
responded to this letter, explaining that Gore's suspension and subse-
quent termination were due to his unexcused absences from work, not
due to his arrest. Gore argued to the jury that the December 1990 let-
ter presented a new grievance. However, Gore admitted that the issues
presented by that letter were the same as presented in his earlier griev-
ance. Gore testified that it was not until December 8, 1992, that he
first realized that the union "dropped the ball" on his grievance. He
filed this action in January 1993, fifty-one days after this alleged dis-
covery.
Sea-Land presented evidence that Gore discovered that Sea-Land
would not reopen the issue with respect to Gore's employment in
April 1991, yet he failed to file his complaint until January 1993. Fur-
ther, Sea-Land presented evidence that Gore failed to inquire regard-
ing the status of his grievance for nearly two years, despite his
experience and the testimony of other witnesses that grievances were
usually processed within one year.
We find that the evidence, viewed in the light most favorable to
Sea-Land, is sufficient to support the jury's conclusion that Gore
failed to file his action within six months of the date on which he
knew or reasonably should have known that the grievance procedure
had broken down to his disadvantage. See Dement v. Richmond,
F. & P. R.R., 845 F.2d 451, 460 (4th Cir. 1988).
We therefore affirm the district court orders granting partial sum-
mary judgment for Defendant and entering judgment on the jury ver-
dict for the Defendant. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the Court and argument would not aid the decisional process.
AFFIRMED
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