Rhymer v. United Parcel Service, Inc. , 9 F. App'x 88 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALBERT M. RHYMER, 
Plaintiff-Appellant,
v.
UNITED PARCEL SERVICE,
INCORPORATED,
Defendant-Appellee,  No. 00-1564
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, Local 391,
Defendant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-98-869-1)
Argued: January 26, 2001
Decided: May 1, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion. Circuit Judge Michael
wrote a separate opinion concurring in the judgment.
COUNSEL
ARGUED: William Joseph O’Malley, III, Greensboro, North Caro-
lina, for Appellant. John James Doyle, Jr., CONSTANGY, BROOKS
2 RHYMER v. UPS
& SMITH, Winston-Salem, North Carolina, for Appellee. ON
BRIEF: Jill Stricklin Cox, CONSTANGY, BROOKS & SMITH,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Albert Rhymer sued his former employer, United Parcel Service,
Inc. (UPS), under Section 301 of the Labor Management Relations
Act (LMRA), 29 U.S.C. § 185. Rhymer does not allege that his union
breached its duty of fair representation. Rhymer nonetheless argues
that he has standing to sue because he claims that UPS engaged in
fraud during arbitration proceedings relating to his discharge. The dis-
trict court dismissed Rhymer’s suit. The court held that Rhymer
lacked standing because he does not allege that his union breached its
duty of fair representation. In the alternative, the court dismissed the
suit because Rhymer could have discovered the fraud prior to the
arbitration proceedings. After considering the briefs, the joint appen-
dix, and the arguments of counsel, we conclude that the district court
reached the correct result. Accordingly, we affirm on the reasoning of
the district court. See Rhymer v. United Parcel Service, Inc., No.
1:98CV00869 (M.D.N.C. Apr. 10, 2000).
AFFIRMED
MICHAEL, Circuit Judge, concurring in the judgment:
I would hold that an employee may have individual standing to sue
under Section 301 of the Labor Management Relations Act (LMRA),
29 U.S.C. § 185, if his employer engaged in fraud during arbitration
proceedings. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293,
1296 (9th Cir. 1982) (allowing employee to maintain suit because of
RHYMER v. UPS 3
employer’s fraudulent conduct during arbitration proceedings). I
would require an employee to show (1) by clear and convincing evi-
dence that there was fraud, (2) the fraud was not discoverable prior
to or during the arbitration, and (3) the fraud materially related to the
arbitration. See, e.g., Forsythe Int’l, S.A. v. Gibbs Oil Co., 915 F.2d
1017, 1022 (5th Cir. 1990). I agree with the district court that any
fraud here was discoverable by Rhymer prior to or during the arbitra-
tion proceedings. Accordingly, I concur in the judgment affirming the
dismissal of Rhymer’s case.