Notice: This Summary Order May Not Be Cited As Precedential Authority, but May Be Called to the Attention of the Court in a Subsequent Stage of This Case, in a Related Case, or in Any Case for Purposes of Collateral Estoppel or Res Judicata. See Second Circuit Rule 0.23, 104 F.3d 352 (2d Cir. 1996)

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff-appellant Carolyn Davis, who is proceeding pro se, appeals from a February 2, 1996 judgment of the United States District Court for the Southern District of New York (1) granting defendants' motion for summary judgment; and (2) denying plaintiff leave to amend her complaint. Plaintiff argues specifically that the court erred in granting summary judgment on plaintiff's duty of fair representation and Title VII claims against the 1199 National Health and Human Service Employees Union (the "Union") because material issues of fact remained in dispute. Plaintiff also asserts that the court erred in denying plaintiff's motion for leave to amend her complaint to add a Title VII claim against third-party defendant Columbia Presbyterian Medical Center (the "Hospital") on the ground, inter alia, that Rule 15(a) of the Federal Rules of Civil Procedure entitled her to amend her complaint to include a Title VII claim that related to the original duty of fair representation claim. We affirm the judgment of the district court.

Plaintiff was hired by the Hospital as a transcriptionist in October of 1988. First in March of 1989, and then again in May and June of that same year, plaintiff was alerted by her supervisors of deficiencies in her job performance. On August 8, 1989, plaintiff was suspended from her position for one day, and then, on September 20, 1989, for two full days. On January 22, 1990, plaintiff was again suspended--this time for a one week period. Finally, on February 28, 1990, plaintiff was fired.

During this entire period, plaintiff was represented by defendant Union pursuant to the terms of a collective bargaining agreement between the Union and the Hospital. Following several postponements, plaintiff--represented by the Union--attended a grievance hearing with the Hospital to contest her termination. On May 9, 1991, the Hospital denied plaintiff's grievance. The Union then instituted arbitration proceedings on her behalf. Prior to the conclusion of the arbitration, however, plaintiff and the Hospital reached a settlement wherein it was agreed that plaintiff would be reinstated to a full-time position as a patient representative, and that she would receive both seniority credit based on her previous position with the Hospital, and a partial back pay award of $4000.

Subsequently, the Hospital declined to honor the settlement agreement. Again, the Union instituted arbitration on behalf of plaintiff. At the conclusion of this second arbitration, the arbitrator issued a consent award providing for substantially the same conditions as were set forth in the initial settlement, plus an additional $8,592 to cover plaintiff's lost wages that had accrued during the period in which the Hospital had refused to comply with the settlement agreement. However, this second settlement effort was also dashed, as plaintiff failed to pick up her settlement award, and also failed to execute a stipulation withdrawing her complaint in this action.

Plaintiff's complaint alleges that the Union failed to represent her adequately by, inter alia, (1) failing to secure a timely grievance hearing for her; and (2) failing to provide her with adequate representation during the arbitration proceedings. She also, as noted, alleges that she should have been permitted to amend her complaint to add a Title VII claim against the Hospital.

Preliminarily, we note that the district court did not abuse its discretion in denying plaintiff leave to amend her complaint to add a Title VII claim against the Hospital. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). It is well established that a significant and unexplained delay, coupled with a showing of prejudice to the defendant, is an appropriate basis on which to deny plaintiff leave to amend. Cf. Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987). Here, plaintiff has shown no compelling reason for her failure to add a Title VII claim against the Hospital for well over two years after she filed her initial complaint, and for over one year since the Hospital was added as a third-party defendant. Furthermore, the Hospital would plainly be prejudiced by the addition of the discrimination claim at this late date, given that a such claim would be wholly unrelated to the duty of fair representation claim that the Hospital has been litigating to date. Cf. State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).

Reviewing the record de novo, we also think that the district court correctly granted defendants' motion for summary judgment. Although it is true that on a motion for summary judgment, all facts must be construed in favor of the nonmoving party, it is equally true that a party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." Bellsouth Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (citations and internal quotations omitted).

In the instant case, plaintiff has presented no evidence that the Union violated its duty of fair representation by acting in an arbitrary, discriminatory, dishonest, or perfunctory fashion with respect to prosecuting plaintiff's grievances against the Hospital. See DelCostello v. International Bd. of Teamsters, 462 U.S. 151, 164-65 (1983). Plaintiff has not presented any evidence, for example, that the Union investigated the grievances of white male members more promptly and thoroughly than it did those of other Union members, or that it failed to adequately represent her in the two arbitrations with the Hospital. Indeed, the evidence suggests that the Union actively prosecuted plaintiff's grievance (despite the Union's belief that her claim was without merit), and in fact, secured for her a settlement with the Hospital wherein plaintiff was reinstated, with seniority credit and partial back pay. Plaintiff has, in short, presented no evidence that would allow a reasonable jury to conclude that the Union breached its duty of fair representation, or violated Title VII, and the district judge thus properly granted the Union's motion for summary judgment.

We have carefully considered plaintiff's remaining arguments and find them to be without merit. For the reasons set forth above and in the district court's well-reasoned opinion, the judgment of the district court is hereby AFFIRMED.

After plaintiff was fired, and pursuant to the terms of the collective bargaining agreement, the Union scheduled a grievance hearing with the Hospital to investigate the conduct with respect to the Hospital's reprimands, suspensions, and termination of plaintiff. Such hearings are routinely used by the union to avoid arbitration. After the hearing was postponed pursuant to the Hospital's request, plaintiff filed a complaint with the New York City Commission on Human Rights, alleging that the Union demonstrated bad faith by not--as of that date--succeeded in concluding a grievance hearing in her favor. Plaintiff also claimed that the Union engaged in a practice of investigating the claims of white male Union members more promptly and thoroughly that those of other Union members.

In December of 1990, the Union again wrote the hospital and requested that a grievance hearing be scheduled. Plaintiff refused to attend this hearing.

On April 11, 1991, plaintiff filed a complaint with the National Labor Relations Board ("NLRB") against both the Hospital and the Union, alleging that defendants refused to process plaintiff's grievance against her union.

The union finally succeeded in rescheduling and completing plaintiff's grievance hearing on May 7, 1991. On May 9, 1991, the hospital informed the union that it would deny plaintiff's grievance because it considered her termination to have been for cause.

Although the union maintained the weakness of plaintiff's position, it nonetheless referred her claims to a review panel for prior to arbitration.

Plaintiff's claim before the NLRB was dismissed on July 17, 1991. The NLRB determined, inter alia, that the Union was not to blame for the delays

Plaintiff has charged the Union with breaching its duty of fair representation in two ways: first, by discriminating against plaintiff by failing to process her grievances with sufficient speed; and second, with providing her with inadequate representation at her arbitration hearing.

The union has, in turn, brought a third-party complaint against the Hospital, alleging that the Hospital should be liable in the event the Union was found liable.

With respect to the plaintiff's claim that her desire for additional discovery rendered the order of summary judgment premature, we note that the district court did not abuse its discretion in concluding that plaintiff's request for additional discovery was untimely, and that the discovery sought would not establish "facts essential to justify the party's opposition." Fed. R. Civ. P. 56(f).