Pinkney v. Progressive Home Health Services, Local 1199

367 F. App'x 210

2d Cir.

2010

Check Treatment

Docket

Kathy PINKNEY, Plaintiff-Appellant, v. PROGRESSIVE HOME HEALTH SERVICES, Local 1199, Service Employees International Union, AFL-CIO, Defendants-Appellees.

No. 08-4574-cv

United States Court of Appeals, Second Circuit

Feb. 23, 2010

211

relevant for multiple non-propensity purposes, such as impeachment and intent; moreover, Herbin has offered no argument as to why any notice problem justifies vacatur under the plain error standard.

(2) Herbin also contends that the evidence was insufficient to support his conviction for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). To obtain a § 922(g)(1) conviction, the government must prove beyond a reasonable doubt that: (1) the defendant has at least one previous felony conviction; (2) the defendant knowingly possessed the firearm; and (3) the firearm was in or affected interstate commerce. United States v. White, 552 F.3d 240, 245 n. 2 (2d Cir.2009). Herbin argues that the government presented insufficient evidence as to possession and interstate commerce.

Herbin “bears a very heavy burden” in prevailing on these arguments. See United States v. Crowley, 318 F.3d 401, 407 (2d Cir.2003) (internal quotation marks omitted). We must sustain the conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Possession. The government can establish possession by proving either actual or constructive possession. United States v. Gaines, 295 F.3d 293, 300 (2d Cir.2002). Actual possession “requires the government to show defendant physically possessed the firearm.” Id. Here, the evidence of actual possession consisted principally of the seizure of a gun during a raid on Herbin‘s residence and the testimony of a witness that she heard Herbin say that the police had seized his gun during the raid. This alone suffices. See United States v. Florez, 447 F.3d 145, 155 (2d Cir.2006).

Interstate Commerce. The government must show “[s]ome nexus with commerce although that need not be any more than the minimal nexus that the firearm [has] been, at some time, in interstate commerce.” United States v. Jones, 16 F.3d 487, 491 (2d Cir.1994); see also Gaines, 295 F.3d at 302. “Testimony that a weapon was manufactured out of state is generally sufficient to meet the interstate commerce element.” Jones, 16 F.3d at 491 (internal quotation marks omitted). Here, an ATF agent testified that the frame of the gun at issue was manufactured in Nevada and then shipped to California where it was assembled with other parts and ultimately sold.

Finding no merit in Herbin‘s remaining arguments, we hereby AFFIRM the judgment of the district court.

Kathy Pinkney, Bronx, NY, pro se.

John D. D‘Ercole (Donna M. Bates, of counsel, on the brief), Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York, N.Y. (Attorneys for Progressive Home Health Servs.); David M. Slutsky, Levy Ratner, P.C., New York, N.Y. (Attorneys for Local 1199).

PRESENT: AMALYA L. KEARSE, PETER W. HALL, Circuit Judges, and JED S. RAKOFF^**, District Judge.

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 com-plaint 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 plaintiff‘s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also Miller v. Wolpoff & 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 Stern 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 arbitrary 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.

Notes

The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.