Kathy PINKNEY, Plaintiff-Appellant, v. PROGRESSIVE HOME HEALTH SERVICES, Local 1199, Service Employees International Union, AFL-CIO, Defendants-Appellees, 367 F. App'x 210

SUMMARY ORDER Appellant Kathy Pinkney, pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Swain, J.; Francis, Mag. J.) granting Progressive Home Health Services’s (“Progressive”) Fed. R.Civ.P. 12(b)(6) motion to dismiss, and the Service Employees International Union Local 1199’s (the “Union”) motion for

summary judgment, dismissing her complaint alleging that the Union breached its duty of fair representation, and that Progressive, her former employer, violated the terms of the collective bargaining agreement between it and the Union.

We assume the parties’ familiarity with the underlying facts, the procedural history of this case, and the issues on appeal. “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also Miller v. Wol-poff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Similarly, we review de novo orders granting

summary judgment and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller, 321 F.3d at 300; Republic Nat’l Bank v. Delta Air Lines, 263 F.3d 42, 46 (2d Cir.2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.1999). “In determining whether there are genuine issues of material fact, we are ‘required to resolve all ambiguities and draw all permissible inferences in favor of the party against whom

summary judgment is sought.’ ” Terry v. Ashcroft, 336 F.3d 128,137 (2d Cir.2003) (quoting Stem v. Trus. of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997)). “To prevail on a hybrid § 301/duty of fair representation claim, [a plaintiff] must demonstrate both (1) that [the employer] breached its collective bargaining agreement and (2) that [the union] breached its duty of fair representation.” Sanozky v. Int’l Ass’n of Machinists & Aero. Workers, 415 F.3d 279, 282 (2d Cir.2005); accord DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

Failure to establish that the union breached its duty of fair representation necessarily precludes the claim against the employer. See Young v. U.S. Postal Serv., 907 F.2d 305, 307 (2d Cir.1990). “[A] union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (citing Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)).

However, “a union’s actions are ai*bitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior 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, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)) (citation omitted). Here, the district court properly determined that Pinkney failed to establish that the Union breached its duty of fair representation.

Pinkney’s claim against the Union rested on her allegations that the Union did not return her phone calls, that it was “biased” against her (though she failed to articulate any specific basis for this contention), and that it failed to arbitrate her grievance concerning her termination. These facts were insufficient to show that the Union breached its duty.

The evidence makes clear that the Union pursued Pinkney’s grievance through the various procedures set forth in the collective bargaining agreement, and ultimately declined to arbitrate her termination based on its determination that, because Progressive’s basis for firing her was well-founded, arbitration would be futile. Nothing in the record suggests that this decision was “so far outside a wide range of reasonableness as to be irrational.” O’Neill, 499 U.S. at 67, 111 S.Ct. 1127 (internal quotation marks omitted).

Pinkney’s failure to establish such a breach by the Union also required dismissal of her § 301 claim against Progressive. Accordingly, the district court properly granted the Union’s motion for

summary judgment and Progressive’s motion to dismiss. We have considered all of Pinkney’s remaining claims of error and determine them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.