Notice: Fourth Circuit I.o.p. 36.6 States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit, 993 F.2d 1536 (4th Cir. 1992)

Wayne Chappell appeals from the district court's order granting summary judgment to Defendants in this action. We affirm.

Chappell initiated this action against his former employer, the Chesapeake & Potomac Telephone Company of Virginia (C & P), and the Communications Workers of America (CWA) and its Local Union 2201 (the Unions), under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 (1988), for wrongful termination in breach of the collective bargaining agreement between C & P and the CWA. Specifically, Chappell alleged that the decision by the Unions not to take his termination grievance to arbitration breached the Unions' duty of fair representation. Chappell requested reinstatement, backpay and benefits in the amount of $75,000, and attorney's fees and costs.

The facts surrounding Chappell's termination are undisputed. Chappell was working for C & P as a telephone installer in March 1991 when a customer lodged a complaint of sexual harassment against Chappell. Chappell admitted that he "initiated physical contact in the customer's chest area," that he "did malinger ... [at the customer's residence] after having finished the assignment," and that he misused C & P time by doing so. Consequently, C & P terminated Chappell's employment on March 25, 1991.

The parties' collective bargaining contract provides a three-step grievance procedure. Steps 1 and 2 are handled by the Local Union on behalf of the employee. At the third step, the CWA takes control of the grievance. If the CWA and C & P do not resolve the grievance by the end of the third step, the CWA has the option of appealing the grievance to arbitration. To preserve the grievance for arbitration, the CWA must invoke arbitration within fourteen days of C & P's written confirmation of its final position at the third step.

Complaints against the CWA may be lodged with the CWA's President within sixty days of the time the complainant becomes aware of the alleged violation. The President must act on the appeal within thirty days. The President's decision may be appealed to the CWA's Executive Committee and Executive Board. Each has thirty days to act on the appeal, and an adverse decision from the Executive Committee may be appealed to the CWA's annual convention, the final step in the internal appeals process.

Local Union 2201 filed a grievance for Chappell protesting his discharge on April 9, 1991. By letter dated July 22, 1991, CWA Vice-President Peter Catucci notified Chappell of the internal appeals procedures pursuant to the CWA constitution. By letter dated July 30, 1991, C & P denied the grievance. On August 9, 1991, CWA representative Jack Dotson notified C & P that the Union was appealing the grievance to arbitration. On August 29, 1991, C & P notified the CWA that the grievance was arbitrable.

On December 16, 1991, CWA representative Dotson submitted a memorandum to Local 2201's President stating that Chappell would be unable to prevail on the grievance at arbitration and that the grievance would be withdrawn and closed in sixty days. By letter addressed to Catucci and dated January 29, 1992, Chappell requested that the CWA not withdraw the request for arbitration. On February 21, 1992, Catucci notified Chappell by letter that it was denying his appeal. Chappell failed to appeal that decision any further.

On March 10, 1992, Chappell filed a charge against Local 2201 with the National Labor Relations Board, alleging that Local 2201 had failed to properly represent him in the handling of his grievance. The Board rejected Chappell's charge on April 30, 1992.

Chappell then filed this action in June 1992. Defendants moved for summary judgment based on Chappell's failure to exhaust his internal union appeal procedures. The district court granted that motion. Chappell timely appealed.

We review an award of summary judgment de novo. Higgins v. E. I. DuPont de Nemours & Co., 863 F.2d 1162 (4th Cir. 1988). Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In ruling on a motion for summary judgment, a court must assess the evidence in the light most favorable to the party opposing the motion. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979). Our review of the record in this case reveals that the district court properly granted summary judgment to the Defendants.

Federal courts require exhaustion of internal union remedies before redress may be sought in federal court. Clayton v. Automobile Workers, 451 U.S. 679 (1981). Here, it is undisputed that Chappell did not avail himself of the full array of internal union remedies as set out in the CWA constitution. Nor did Chappell present evidence of any of the three factors^*  to excuse his failure to exhaust the internal union appeals procedure. Therefore, the district court properly granted summary judgment.

CWA Vice-President Catucci notified Chappell of the internal appeals process by letter dated July 22, 1991. Nevertheless, Chappell wrote to Catucci in January 1992 requesting that the grievance be sent to arbitration. By letter dated February 21, 1992, Catucci denied Chappell's appeal. Chappell chose not to appeal that decision to the CWA President, the Executive Committee, the Executive Board, or the CWA convention. Instead, Chappell filed a charge against Local 2201.

Chappell admitted that he received and read Catucci's letter of February 21, 1992, and admitted that he did not appeal that decision. Furthermore, Chappell admitted that none of the Union officials who considered his claim were hostile to him or biased regarding his claim. In fact, Chappell expressly stated his belief that he had been fairly treated by the Unions throughout the arbitration process.

When there is a complete failure of proof with regard to an essential element of the non-movant's case, then all other material facts are rendered immaterial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Chappell was required to prove that he had exhausted his internal union remedies. Chappell failed to so prove, and the record does not support his argument that he did exhaust his internal union appeal procedures. Therefore, because we find that no genuine issue of material fact exists as to the exhaustion prerequisite, we affirm the order of the district court granting summary judgment to the Defendants. 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