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Paul Duriso v. West Gulf Maritime Associati ( 2018 )


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  •      Case: 17-40938      Document: 00514701623         Page: 1    Date Filed: 10/29/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40938
FILED
October 29, 2018
Summary Calendar
Lyle W. Cayce
Clerk
PAUL DURISO,
Plaintiff - Appellant
v.
WEST    GULF    MARITIME    ASSOCIATION;  INTERNATIONAL
LONGSHOREMEN’S ASSOCIATION SOUTH ATLANTIC AND GULF
COAST DISTRICT; LOCAL 21, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:15-CV-411
Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Paul Duriso appeals from the granting of summary judgment denying
his claims against the International Longshoremen’s Union (ILA), ILA
Local 21, and the Western Gulf Maritime Association (WGMA) representing
his employer.      We review de novo the district court’s grant of summary
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40938    Document: 00514701623     Page: 2   Date Filed: 10/29/2018
No. 17-40938
judgment. Thomas v. LTV Corp.,
    39 F.3d 611
    , 616 (5th Cir. 1994). “A motion
for summary judgment is properly granted when competent evidence
establishes the absence of a genuine issue of material fact and that the movant
is entitled to judgment as a matter of law.” Id.; see FED. R. CIV. P. 56(a). To
overcome summary judgment, Duriso must offer specific facts showing a
genuinely    contested   material    issue,   and    conclusional    allegations,
unsubstantiated assertions, or only a scintilla of evidence will not suffice. See
Hemphill v. State Farm Mut. Auto. Ins. Co.,
    805 F.3d 535
    , 538 (5th Cir. 2015).
In this “hybrid” action under § 301 of the Labor Management Relations
Act, 29 U.S.C. § 185, Duriso sues the WGMA for breach of the collective
bargaining agreement (CBA), and the ILA and Local 21 for breaching the duty
of fairly representing him in his grievance against the WGMA. See DelCostello
v. International Bhd. Of Teamsters,
    462 U.S. 151
    , 164-65 (1983).          Under
DelCostello, Duriso is “bound by the results of the grievance proceeding unless
he” proves both that the employer violated the CBA and that the union failed
to represent him fairly.
    Thomas, 39 F.3d at 622
    . Thus, Duriso must show a
breach of the duty of fair representation by the ILA and Local 21 in order to
recover against any defendant. See
    id. To do 
    that, he must ultimately provide
“substantial evidence” that the behavior of the ILA or Local 21 was arbitrary,
discriminatory, or in bad faith. See Freeman v. O’Neal Steel, Inc.,
    609 F.3d 1123
    , 1127-28 (5th Cir. 1980); Landry v. Cooper/T. Smith Stevedoring Co.,
Inc.,
    880 F.2d 846
    , 852 (5th Cir. 1989).
Duriso has failed to show a genuine issue of material fact with regard to
whether the ILA or Local 21 acted with the requisite bad faith by declining to
pursue arbitration of his grievance. See
    Hemphill, 805 F.3d at 538
    ;
    Landry, 880 F.2d at 852
    . Accordingly, both of his claims must fail. See
    DelCostello, 462 U.S. at 164-65
    . The judgment is AFFIRMED.
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