Aristides Martinez v. International Brotherhood of Electrical Workers-Ibew Local Union No. 98

CLD-028 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
NO. 09-2894
___________
ARISTIDES MARTINEZ,
Appellant
v.
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS–IBEW
LOCAL UNION NO. 98
____________________________________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 06-cv-04539)
District Judge: Louis H. Pollack
_______________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 29, 2009
Before: BARRY, FISHER and COWEN, Circuit Judges
(Filed: November 19, 2009)
_________
OPINION
_________
PER CURIAM
Aristides Martinez, proceeding pro se, appeals the District Court’s order granting

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summary judgment in favor of International Brotherhood of Electrical Workers–IBEW
Local Union No. 98 (“the Union”). For the reasons discussed below, we will affirm.
I.
Martinez, a self-described “Hispanic American man born in Bogota, Colombia,”
was a member of the Union during his employment as a video editor at WTXF29, a Fox
Television station in Philadelphia. He was sixty-four years-old when WTXF29 hired him
in 1996. In July 2003, Martinez received a written warning for poor job performance, and
he received a second written warning in September 2003 for a number of job errors.
WTXF29 issued a third performance warning in November 2003 and a “last and final”
warning in February 2004 for an unexcused failure to come to work on Super Bowl
Sunday. Each document warned that his poor performance could result in termination.
Following the July 2003 warning, Martinez met with the Union’s business agent,
Larry DelSpechio, to discuss the warning and Martinez’s concerns about staff and
management. DelSpechio advocated informally for Martinez with management, but did
not file a grievance. Martinez wrote to DelSpechio again after he received the November
2003 warning to express his version of events and his belief that the Union was required
to protect him from false accusations. DelSpechio again met with Martinez and
management, but did not file a grievance.
WTXF29 suspended Martinez in April 2004 after he verbally abused a co-worker;
he refused to participate in the subsequent investigation. On May 4, 2004, WTXF29 fired

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Martinez. The Union filed a grievance two days later, which WTXF29 rejected. The
Union did not pursue arbitration under the collective bargaining agreement based on its
determination that WTXF29 properly fired Martinez for cause and that the Union could
not prevail at arbitration.
Martinez alleges that he was subjected to “hostility, resentment, and contempt” and
harassment from fellow Union members because of his age and ethnicity. He complained
in writing to both WTXF29 and the Union about one co-worker in particular, Jamal
Northern. The Union dismissed the complaint. Martinez filed complaints against
WTXF29 with the Equal Employment Opportunity Commission and the Pennsylvania
Human Relations Commission. The record does not show that Martinez pursued any
action against the Union prior to filing suit.
Martinez filed this complaint in October 2006, alleging that the Union provided
only minimal representation during the investigation that followed his suspension and did
not pursue his case through arbitration. He claims that the Union discriminated against
him on the basis of age and national origin, in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 626, and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2(c), respectively. He further claims that such discrimination
violates the Pennsylvania Human Relations Act (PHRA), 43 Pa. Const. Stat. §§ 951-963.
Martinez filed an amended complainant in November 2007, adding claims under the
Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-531, and

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§ 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The Union
filed a motion for summary judgment, which the District Court granted on May 27, 2009.
Martinez filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing a
District Court order granting of summary judgment, we apply the same test that the
District Court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001).
Summary judgment is proper when, viewing the evidence in the light most favorable to
the non-moving party and drawing all inferences in that party’s favor, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
at 232; Fed. R. Civ. P. 56(c). The party opposing summary judgment “may not rest upon
the mere allegations or denials of the . . . pleading,” but “must set forth specific facts
showing that there is a genuine issue for trial.” Saldana, 260 F.3d at 232 (citing Fed. R.
Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
III.
A. LMRDA and LMRA Claims
The District Court dismissed Martinez’s LMRDA and LMRA claims because he
did not exhaust internal remedies. Union members are required to exhaust the grievance
and arbitration remedies contained in a collective bargaining agreement prior to filing suit
under the LMRA. Anjelino v. New York Times Co., 200 F.3d 73, 99 (3d Cir. 1999);

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Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1538 (3d Cir. 1992). Claims brought
pursuant to the LMRDA are properly dismissed where the claimant “cannot demonstrate a
‘valid reason’ for failing to exhaust internal procedures.” Anjelino, 200 F.3d at 99
(quoting Pawlak v. Greenwalt, 628 F.2d 826, 830-31 (3d Cir. 1980)). Because Martinez
has not demonstrated that he exhausted the Union’s internal grievance procedures prior to
filing his complaint, we will affirm the dismissal of these claims.
B. Title VII, ADEA, and PHRA Claims
The District Court concluded that Martinez made insufficient showings to defeat
summary judgment on his claims under Title VII, the ADEA, and the PHRA. Martinez
claims that the Union: 1) knew of and failed to intervene when WTFX29 discriminated
against him; 2) discriminated against him when it handled its representation of him
differently from its representation of other Union members; and 3) failed to protect him
from harassment and discriminatory conduct from other Union members.
Under Title VII, a Union is barred from discriminating against its members based
on race, color, religion, sex, or national origin. 42 U.S.C. § 2000-e2(c); see also Anjelino,
200 F.3d at 95-96 (a union may be held liable if it “instigated or actively supported” the
discrimination). Both the ADEA, 29 U.S.C. § 623(c), and the PHRA, 43 Pa. Const. Stat.
§ 955(c), mirror Title VII’s language and apply to Unions. Title VII prohibits
discriminatory employment practices based upon an individual’s “race, color, religion,
sex, or national origin.” See 42 U.S.C. § 2000e-2(c). A plaintiff carries the initial burden

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of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). To establish a prima facie case, a Title VII plaintiff must demonstrate
that: 1) he belongs to a protected class; 2) he was qualified for the position; 3) he was
subject to an adverse employment action; and 4) the adverse action was under
circumstances giving rise to an inference of discrimination. Sarullo v. U.S. Postal Serv.,
352 F.3d 789, 797 (3d Cir. 2003).
That Martinez is a Colombian citizen of Hispanic descent, is over forty years-old,
and was qualified for his position at WTXF29 is not in dispute. The relevant question,
therefore, is whether he had been subject to an adverse employment action under
circumstances suggesting discrimination.
1. Employer Action
Martinez first claims that the Union failed to intervene when WTXF29 fired him
for discriminatory reasons. The District Court properly found that the Union cannot be
held liable for WTXF29's alleged discrimination against Martinez unless the Union took
an active role in the discrimination. See Anjelino, 200 F.3d at 95 (1999). Martinez did
not proffer any evidence of such conduct. The Court also concluded that, because it had
already determined that WTXF29 did not discriminate against him, see Martinez v. Fox
Broad. Co., No. 06-04537, 2008 WL 4425099, at *6, 8, Martinez was collaterally
estopped from relitigating the issue. See generally, Henglein v. Colt Indus. Operating
Corp., 260 F.3d 201, 209 (3d Cir. 2001).

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2. The Union’s Representation of Martinez
Martinez next claims that the Union did not represent him as zealously as it had
represented other Union members. Pursuant to the collective bargaining agreement
between the Union and WTXF29, Martinez could have demanded arbitration following
the completion of a two-step grievance process. The Union did not file a grievance until
after Martinez was fired, rather than when he was suspended, and then decided not to
pursue arbitration. The District Court concluded that Martinez failed to show that his
fellow Union members were similarly situated, and, as a result, failed to establish that he
received differential treatment. See Kline v. Kansas City, Mo., Fire Dept., 175 F.3d 660,
670-71 (8th Cir. 1999) (“similarly situated” means similar “in all relevant respects”);
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998) (same).
We agree with the District Court’s conclusion that, although the Union’s decision not to
pursue arbitration constituted an “adverse action,” Martinez failed to show sufficient
evidence that the circumstances of that decision suggested discrimination. See Sarullo,
352 F.3d at 797-98. Accordingly, the District Court properly granted summary judgment
in favor of the Union on this claim.
3. Harassment
Martinez claims that his co-workers subjected him to racially-motivated and age-
related abuse, and alleges that the Union overlooked the harassment. He mentions one
fellow Union member, Jamal Northern, in particular. To establish a claim under Title VII

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As the District Court noted, the Union did investigate Northern’s conduct regarding1
Martinez in 2004, and concluded that it was not actionable. WTXF resolved a 2002
dispute between the two men in favor of Martinez.
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because of an intimidating or offensive work environment, a plaintiff must show that: 1)
he suffered intentional discrimination because of his national origin; 2) the discrimination
was pervasive and regular; 3) the discrimination detrimentally affected him; 4) the
discrimination would detrimentally affect a reasonable person of the same race in that
position; and 5) there is a basis for vicarious liability. Cardenas v. Massey, 269 F.3d 251,
260 (3d Cir. 2001). As the District Court correctly found, although Martinez did establish
that he and Northern had an adversarial relationship, he did not show any evidence of
discriminatory harassment by any Union member. Moreover, the District Court properly
concluded that, even if Martinez could point to evidence of discriminatory harassment, he
could not show that the Union “instigated or actively supported” the harassment. See
Anjelino, 200 F.3d at 95-96.1
C. Negligent Infliction of Emotional Distress
The District Court correctly declined to exercise jurisdiction over Martinez’s state
law claims, once it decided to grant the Union summary judgment on his federal law
claims.
D. Discovery Order
Finally, Martinez claims the District Court abused its discretion in limiting

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discovery, namely, limiting DelSpechio’s deposition to three hours and denying him the
opportunity to depose a Union shop steward to challenge DelSpechio’s credibility. In
denying Martinez’s motion for reconsideration, the District Court clarified that its original
order did not prevent the shop steward from appearing voluntarily for deposition.
Moreover, the District Court properly held that credibility determinations are
inappropriate in the summary judgment context. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
IV.
Upon review of the record, we conclude that the District Court correctly granted
the Union’s motion for summary judgment for substantially the same reasons given in the
District Court's memorandum opinion. As the appeal does not present a substantial
question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R.
27.4; 3d Cir. I.O.P. 10.6.
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