United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3573
                                   ___________

Ronald J. Hylla,                   *
                                   *
             Appellant,            *
                                   * Appeal from the United States
      v.                           * District Court for the
                                   * District of Minnesota.
Transportation Communications      *
International Union,               *
                                   *
             Appellee.             *
                              ___________

                             Submitted: June 9, 2008
                                Filed: August 6, 2008
                                 ___________

Before LOKEN, Chief Judge, EBEL,1 and COLLOTON, Circuit Judges.
                              ___________


EBEL, Circuit Judge.

      Plaintiff-Appellant Ronald J. Hylla appeals from the district court’s decision
granting Defendant-Appellee Transportation Communications International Union’s
(“TCIU”) motion to dismiss or, alternatively, for summary judgment. Hylla’s appeal


      1
         The Honorable David M. Ebel, United States Circuit Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
calls on us to consider the scope of protection offered to elected union officers under
Title I of the Labor-Management Reporting and Disclosure Act (“LMRDA”). The
district court2 concluded that the protection offered by Title I only extends to
expression or speech that is related to the general union membership as a whole.
Because the district court found that Hylla’s speech was not so related, it granted
TCIU’s motion to dismiss on the ground that it lacked subject matter jurisdiction. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                 I. BACKGROUND

       On November 30, 2006, Hylla filed a complaint in the United States District
Court for the District of Minnesota asserting that TCIU had “removed [him] from his
[elected] position of senior vice general chairman of System Board of Adjustment No.
46.” According to Hylla, TCIU had done so because he “exercised his right to engage
in free speech, to meet and assemble freely with other members, and to express his
views relative to the business of [TCIU] and System Board of Adjustment No. 46....”
Hylla asserted, inter alia, that TCIU’s conduct was a violation of Title I of the
LMRDA.

       Hylla’s complaint was terse. Aside from mentioning that TCIU had removed
him from his position, it did not divulge the facts that gave rise to his claim. Instead,
the case’s relevant factual background was initially revealed in the memorandum of
law in support of TCIU’s motion to dismiss or, alternatively, for summary judgment.
Hylla responded to this motion and provided his own version of the facts. As the
district court noted, however, “[t]he parties do not dispute the basic underlying facts
as summarized by the Magistrate Judge and set forth in the transcript of the internal
union hearing.” Those facts may be summarized as follows.


      2
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

                                           -2-
       TCIU is a labor union that represents employees in the railroad industry. It has
a three-tiered governance structure, the second tier of which consists of intermediate
bodies known as System Boards. In May of 2004, Hylla was elected Senior Vice
General Chairman of System Board of Adjustment No. 46 (“System Board”). As
Senior Vice Chairman of the System Board, Hylla reported directly to the System
Board’s General Chairman, Larry Swanson.

       The events that precipitated this case occurred on November 14, 2005. It was
on that day that Hylla left a note in Swanson’s office inquiring why Swanson was
monitoring his workplace attendance. In response, Swanson told Hylla that he had
instructed Kelly Gilbertson, an administrative employee in the System Board office,
to keep attendance records of “everybody” so that he could “know when people are
in the office and when they’re not.” Hylla was skeptical of this explanation and
complained that he was being singled out. Thereafter, the two exchanged some
additional remarks, with Hylla eventually telling Swanson, “well, fuck you.” Upset,
Swanson replied that Hylla had “gone too far” and that this would not be the end of
the matter. Swanson thereafter exited the office and went to the lunchroom to make
a personal phone call.

       When Swanson returned to the office, he observed that Gilbertson was standing
in front of her office door visibly upset. Swanson asked Gilbertson what happened;
Gilbertson responded that she had just been threatened by Hylla. According to
Gilbertson, Hylla had walked into her office, thrown a stack of papers on her desk,
and said “watch your back.” Gilbertson interpreted Hylla’s remark as a threat,
especially in light of Hylla’s unpleasant demeanor. Thereafter, Swanson confronted
Hylla about Gilbertson’s allegations, to which Hylla offered no response.

       Troubled by Hylla’s conduct, Swanson contacted Robert Scardelletti, the
International President of TCIU, to discuss what had occurred. Pursuant to this
discussion, on November 16, 2005, Swanson instructed Hylla that he was not to return
to the System Board office until he was otherwise informed. Thereafter, in a letter

                                          -3-
dated November 18, 2005, Scardelletti informed Hylla that he was being charged with
conduct unbecoming of an officer, insubordination, and dereliction of duty, all in
violation of TCIU’s constitution. These charges arose from the two incidents that
occurred on November 14, 2005, as well as previous incidents that occurred in August
and December of 2004. Hylla was suspended pending a hearing on the charges.

       Hylla’s hearing occurred on January 19, 2006, and featured testimony from
several witnesses, including Hylla, Swanson, and Gilbertson. Following the hearing,
the TCIU hearing officer recommended that Hylla be found guilty of all but one of the
charges against him. As a consequence, the hearing officer further recommended that
Hylla be removed from office and declared permanently ineligible to hold any TCIU
office in the future. Scardelletti adopted the hearing officer’s recommendations and
thereafter informed the District Chairpersons of his decision. Scardelletti made clear
that his decision was based on the two incidents that occurred on November 15, 2005:
(1) Hylla’s use of profane language towards Swanson, and (2) Hylla’s perceived threat
towards Gilbertson.

       Hylla appealed Scardelletti’s decision to the TCIU Executive Counsel, which
sustained the decision. Thereafter, having exhausted his intraunion remedies, Hylla
brought suit in the district court, claiming, inter alia, that TCIU’s decision to remove
him from office violated his free speech rights under Title I of the LMRDA. After
TCIU responded with a motion to dismiss or, alternatively, for summary judgment,
the district court ruled in TCIU’s favor. According to the court, because the conduct
for which Hylla was removed from office was not protected by the LMRDA, it lacked
subject matter jurisdiction over Hylla’s action. Hylla now appeals.

                                 II. DISCUSSION

       In granting TCIU’s motion to dismiss for lack of subject matter jurisdiction,
the district court concluded that Hylla’s conduct “did not concern the general interests


                                          -4-
of the union membership” and therefore was “not protected speech under Title I of the
LMRDA.” On appeal, Hylla contends that the district court’s decision was erroneous
because Title I protection is not strictly limited to speech relating to the general
interests of the union membership. Alternatively, Hylla contends that even if Title I
protection is so limited, his conduct was sufficiently related to the general interests of
TCIU so as to fall within the scope of Title I’s protections. Each of these arguments
will be considered in turn.

                                A. Standard of Review

       “[W]hen the district court’s decision to dismiss for lack of subject matter
jurisdiction is based on the complaint alone, or on the complaint supplemented by
undisputed facts evidenced in the record,” our review is “‘limited to determining
whether the district court’s application of the law is correct and, if the decision is
based on undisputed facts, whether those facts are indeed undisputed.’” Osborn v.
United States, 

, 730 (8th Cir. 1990) (quoting Williamson v. Tucker, 

, 413 (5th Cir. 1981)). “If the court relied, however, on its own determination
of disputed factual issues, the appellate court must then review those findings under
the ‘clearly erroneous’ standard.” 

case, the district court did not resolve any factual disputes in determining
that it lacked subject matter jurisdiction. Although Hylla argued that profane language
was common at the System Board, this contention had no bearing on whether his
remark to Swanson was protected by the LMRDA, and therefore, was not relevant in
determining whether subject matter jurisdiction existed. Similarly, although Hylla
believed that his conduct towards Gilbertson was non-threatening, this too had no
bearing on whether the conduct was protected by Title I of the LMRDA, and in turn,
had no bearing on whether the district court had subject matter jurisdiction over
Hylla’s action. Thus, because no material factual issues were decided, the district
court’s decision is reviewed de novo.

                                            -5-
                                 B. The LMRDA

      Hylla’s claims arise under § 101(a)(2) of the LMRDA. This section, titled
“Freedom of Speech and Assembly,” provides:

      Every member of any labor organization shall have the right to meet and
      assemble freely with other members; and to express any views,
      arguments, or opinions; and to express at meetings of the labor
      organization his views, upon candidates in an election of the labor
      organization or upon any business properly before the meeting, subject
      to the organization’s established and reasonable rules pertaining to the
      conduct of meetings: Provided, That nothing herein shall be construed
      to impair the right of a labor organization to adopt and enforce
      reasonable rules as to the responsibility of every member toward the
      organization as an institution and to his refraining from conduct that
      would interfere with its performance of its legal or contractual
      obligations.

29 U.S.C. § 411(a)(2).

          Section 102, in turn, provides a private right of action for violations of §
101(a)(2). Section 102 reads in relevant part: “Any person whose rights secured by
the provisions of this subchapter have been infringed by any violation of this
subchapter may bring a civil action in a district court of the United States for such
relief (including injunctions) as may be appropriate.” 29 U.S.C. § 412.




                                         -6-
                      1. The Scope of § 101(a)(2) Protection

       Although on its face § 101(a)(2) claims are limited to union members, the
Supreme Court has recognized that in some instances union members who hold
elected office – like Hylla – may pursue claims pertaining to their status as an officer
under § 101(a)(2). Sheet Metal Workers’ Int’l Ass’n v. Lynn, 

, 354-55
(1989). Specifically, the Court has reasoned that “[w]hether ... interference with Title
I rights gives rise to a cause of action under § 102 must be judged by reference to the
LMRDA’s basic objective: to ensure that unions are democratically governed, and
responsive to the will of the union membership as expressed in open, periodic
elections.” 

(quotation, alteration omitted). In Lynn, this basic objective cut
in favor of recognizing a cause of action, because

      [s]eeing Lynn removed from his post just five days after he led the fight
      to defeat yet another dues increase proposal, other members of the
      [union] may well have concluded that one challenged the union’s
      hierarchy, if at all, at one’s peril. This is precisely what Congress sought
      to prevent when it passed the LMRDA. It recognized that democracy
      would be assured only if union members are free to discuss union
      policies and criticize the leadership without fear of reprisal.

(footnote, quotation omitted).

       The Court also observed that Lynn himself, who was also a union member,
“paid a price for the exercise of his membership rights” when he was discharged from
his elected position as a business representative of the union in retaliation for his
outspoken speech against a dues increase. 

. Both the rights of other union
members to elect Lynn as their business representative and Lynn’s free speech rights
as a union member to campaign against the dues increase were chilled by the decision
of the union president to discharge Lynn. The Court considered both sets of rights in

                                            -7-
the balancing analysis to determine whether Lynn’s discharge was so undemocratic
as to violate Lynn’s § 101(a)(2) rights. The circumstances in Lynn may be contrasted
with Finnegan v. Leu, 

(1982), where there was no countervailing
democratic interest to weigh against the decision of a newly elected union officer to
replace previously appointed union officials with his own staff. In Lynn, however,
the Court determined that on balance, § 101(a)(2) was violated when Lynn was
discharged.

      Here, Hylla was an elected official, suggesting some similarity to Lynn. But,
Hylla’s discharge was not as a result of his representing the democratic will of the
union membership. Rather, it was the result of his speech and conduct in protest of
what he perceived to be a personal affront against him. We must therefore decide
whether Hylla’s discharge under such circumstances chilled or threatened any union
democratic values protected by § 101(a)(2).

        In analyzing this question, we draw some guidance by analogy from the
Supreme Court’s observation that § 101(a)(2) “was patterned after the First
Amendment.” Reed v. United Transp. Union, 

, 326 (1989).3 However,
as the Court observed, the rights under § 101(a)(2) are subject to reasonable union
rules that may restrict such rights, and thus, § 101(a)(2) is not strictly parallel with the


       3
         In drawing on this analogy, we are by no means suggesting that § 101(a)(2)
of the LMRDA is perfectly coextensive with the First Amendment. For instance,
although in Finnegan the Court made clear that an appointed union representative
could not pursue a claim under § 101(a)(2), similar limitations do not always apply
in the First Amendment context. See, e.g., Langley v. Hot Spring County, 

, 817 (8th Cir. 2005) (applying the holding in Branti v. Finkel, 

(1980), that because “political patronage dismissals impinge upon public employees’
First Amendment rights of speech and association ... a dismissal solely on account of
an employee’s political affiliation violates the First Amendment unless the hiring
authority can demonstrate that party affiliation is an appropriate requirement for the
effective performance of the public office involved” (quotation omitted)).
                                            -8-
First Amendment even though § 101(a)(2) was patterned after it. United Steelworkers
v. Sadlowski, 

, 111 (1982) (asserting “Congress modeled Title I [of the
LMRDA] after the Bill of Rights, and ... the legislators intended § 101(a)(2) to restate
a principal First Amendment value – the right to speak one’s mind without fear of
reprisal”).

       In the First Amendment context, when deciding whether a public employee’s
speech is protected, “[t]he threshold question ... is whether the employee’s speech
may be ‘fairly characterized as constituting speech on a matter of public concern...’”
Wingate v. Gage County Sch. Dist., No. 34, ___ F.3d ___, 

, *4 (8th
Cir. June 16, 2008) (quoting Connick v. Myers, 

, 146 (1983)).

      [W]hen a public employee speaks not as a citizen upon matters of public
      concern, but instead as an employee upon matters only of personal
      interest, absent the most unusual circumstances, a federal court is not the
      appropriate forum in which to review the wisdom of a personnel decision
      taken by a public agency allegedly in reaction to the employee’s
      behavior.

. However, “when a government employee speaks ‘as a
citizen’ – that is, outside the scope of employment – on ‘matters of public concern,’
the First Amendment offers protection if the speech survives the Pickering balancing
test....” McGee v. Pub. Water Supply, Dist. # 2, 

, 920 (8th Cir. 2006)
(referring to Pickering v. Bd. of Educ., 

(1968)).

       Similar criteria must be applied in the LMRDA context as well. Namely,
instead of the First Amendment inquiry that asks “whether the employee spoke as a
citizen on a matter of public concern,” the threshold inquiry in the LMRDA context
is whether the speech at issue “may be fairly characterized as a matter of union
concern.” And like in the First Amendment context, speech that involves entirely

                                          -9-
personal interests is not, absent the most unusual circumstances, a matter of union
concern. See, e.g., Maceira v. Pagan, 

, 14 (1st Cir. 1981) (asserting, “[i]n
drawing the ‘fine line’ between insubordination and freedom of speech in ‘removal
from union position’ cases, we must balance plaintiffs’ interest in free speech and
expression against whatever legitimate union concerns may warrant limitations upon
those activities” (citation omitted)).

       As such, we agree with the district court that § 101(a)(2) protection is limited
to speech that relates to the general interests of the union membership at large. In
addition to § 101(a)(2)’s relation to the First Amendment, our disposition of this issue
is bolstered by the Supreme Court’s observation in Lynn that Title I of the LMRDA
was founded on Congress’ desire to protect the democratic governance of unions.
Because a union’s democratic governance will not be undermined by speech that is
entirely personal, it is appropriate that no cause of action would arise for such
expression. Thus, as this court has previously recognized, § 101(a)(2) protects “labor
organization members’ reasonable rights of assembly and speech relating to their labor
organization....” Marshall v. Local Union No. 6, Brewers & Maltsters and Gen.
Labor Dep’ts, 

, 1365-66 (8th Cir. 1992) (emphasis added). It does not,
however, go beyond what would be provided for under the First Amendment, to
protect speech that is of an entirely personal interest.

        In arguing that § 101 (a)(2) protection is not so limited, Hylla chiefly relies
on Salzhandler v. Caputo, 

(2d Cir. 1963). Salzhandler involved a case
in which the plaintiff, who was an elected financial secretary of a union, accused
union officers of embezzlement and distributed a flier to the union membership
describing the officers as “thieves, scabs, robbers, scabby bosses, bums, pimps, f-
bums, (and) jailbirds.” 

In response to this conduct, which the union
leadership contended was libelous, the plaintiff was removed from his position and
prohibited from participating in the affairs of the union for five years. The plaintiff



                                         -10-
sued, asserting that his conduct was protected under Title I of the LMRDA. The
Second Circuit agreed. 

      To the extent that Hylla argues that Salzhandler stands for the notion that §
101(a)(2) protects speech that is not a matter of union concern, he is mistaken. The
speech in Salzhandler was clearly related to the general interests of the union.
Namely, it involved allegations that union funds were being misappropriated, a matter
about which the general union membership would no doubt have an interest.

       Hylla’s reliance on Turner v. Air Transport Lodge 1894 of International
Association of Machinists and Aerospace Workers, 

(2d Cir. 1978),
Stachan v. Weber, 

(9th Cir. 1976), and Williams v. United Steel
Workers of America, 

(M.D.N.C. 2002), is similarly misplaced.
The conduct that gave rise to the § 101(a)(2) claims in each of these cases did not
involve matters of an entirely personal nature, but instead, concerned matters that
implicated the interests of the union as a whole. Specifically, Turner involved the
espousal of communist ideas during a campaign for union office in violation of an
express union constitutional provision that made it misconduct by a member to
advocate communism or any other totalitarian philosophy. Stachan, meanwhile,
involved speech concerning a general union policy that required a flag salute and the
recitation of the pledge of allegiance during each union meeting. Finally, Williams
involved speech about the Confederate flag by a local union leader when there was in
fact a general Confederate flag controversy swirling about the plaintiff’s workplace
and that had led to turmoil in the union’s governance. Although the court in Williams
held that the speech was protected by § 101(a)(2), it was so disruptive to the
functioning of the union that it was properly regulated under the proviso allowing
unions to establish “reasonable rules as to the responsibility of every member toward
the organization as an institution and to his refraining from conduct that would
interfere with its performance of its legal or contractual obligation.”



                                        -11-
                                2. Hylla’s Conduct

       Having determined that § 101(a)(2) is limited to speech concerning matters of
union concern, we must next determine whether Hylla’s conduct was so related. In
the First Amendment context, “[w]hether an employee’s speech addresses a matter
of public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” 

-48. As this
court has observed in McGee, “when a government employee speaks ‘as an employee
upon matters only of personal interest,’ such as many personnel matters, the First
Amendment does not offer protection. 

, 

. On
the other hand, when a government employee speaks ‘as a citizen’ – that is, outside
the scope of employment – on ‘matters of public concern,’ the First Amendment
offers protection if the speech survives the Pickering balancing 

. In Garcetti v. Ceballos, 

, 421 (2006), the Supreme Court further
clarified Connick by holding “that when public employees make statements pursuant
to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.” Applying these notions to the LMRDA context, it is clear
that when a union member or elected officer speaks out about matters that relate solely
to that individual’s interest, § 101(a)(2) protection does not arise.4

      In this case, there were two incidents for which Hylla was allegedly disciplined:
(1) his use of profanity towards Swanson, and (2) his alleged threat towards
Gilbertson. We conclude that Hylla’s conduct in neither instance involved a matter
of union concern, but instead was solely focused on Hylla’s personal interests.




      4
        “The inquiry into the protected status of speech is one of law, not fact.”

n.7.
                                         -12-
        When Hylla remarked “well, fuck you” to Swanson, he was agitated that he was
being “singled out” by Swanson’s decision to record workplace attendance. Thus,
almost by its very terms, Hylla’s remark did not relate to the general interests of the
union membership, but rather related to a concern about his unique situation. This is
not the type of speech that § 101(a)(2) was designed to protect. Hylla’s remark had
little connection to any general union interest and instead may be more readily
understood as individual insubordination. At best, the speech was directed at a
particular administrative policy – that according to Hylla’s own pleadings was adopted
in order to single out a particular officer – rather than anything concerning the
governance of the union generally.

          Hylla’s conduct towards Gilbertson was of a similarly personal nature. Even
if it is assumed, as Hylla argues, that his conduct was non-threatening, the conduct did
not implicate the general interests of the union. Gilbertson was a clerical employee
who had no control over the attendance policy and was acting at the direction of
Swanson. Under such circumstances, no matter of general union interest was involved
in Hylla’s confrontation with Gilbertson.

       Nevertheless, in arguing that his conduct did implicate the general interests of
the union, Hylla contends that “[n]ot only was [he] complaining about being singled
out, he was complaining that Swanson, [Tom] Truhler and Gilbertson and the office
as a whole were not keeping accurate track of his time.” (Emphasis added.) By its
very terms, however, this argument demonstrates the personal nature of Hylla’s
conduct. Hylla’s remarks did not relate to anything that involved the interests of the
union generally, but instead were personal grievances about the way he was being
treated. Just as such speech would not be protected in the First Amendment context,
Congress did not intend for such speech to be protected under Title I of the LMRDA.

      Hylla, however, counters that because the System Board’s policies impacted
his performance as an elected union officer, the general interests of the union

                                         -13-
membership were implicated when he complained about these policies directed
against him. Although in a very remote sense “this may be true, it does not serve to
convert [Hylla’s] personal grievances into a matter of [union] concern.” Crain v. Bd.
of Police Comm’rs of Metro. Police Dep’t of St. Louis, 

, 1411 (8th Cir.
1990). As this court observed in Crain, where it was argued that what were purely
personal grievances were a matter of public concern because they impacted the
griever’s family, “[a]ny management decision, e.g., the size of a salary increase or the
number of company holidays, affects the employees and their families; this is
decidedly not the proper test for determining what speech implicates a matter of public
concern.” 

nuance in Hylla’s working conditions, whether it be his
parking space or office temperature, could potentially affect his performance as an
elected union officer. To say that such concerns implicate the general interests of the
union, however, would swallow the rule. In every case, if we were to go down the
rabbit’s hole far enough, it would be hyperbolized that the general interests of the
union – or for that matter the public – would be implicated. As such, we reject Hylla’s
argument.

       To better illustrate why Hylla’s argument fails, it is helpful to juxtapose Hylla’s
conduct with that which the Court found to create a cause of action under § 102 in
Lynn. In Lynn, an elected union officer spoke in opposition to a proposed dues
increase pursued by other members of the union 

.
After the proposed dues increase was defeated by a vote of the union membership, the
elected officer was notified “that he was being removed ‘indefinitely’ from his
[elected] position ... specifically because of his outspoken opposition to the dues
increase.” 

Because the elected officer’s dismissal was specifically
predicated upon his outspokenness regarding a matter of union governance, it was
clear that his § 101(a)(2) rights had been violated and that a chilling effect may arise
that would harm the union’s democratic governance. Clearly in contrast to Lynn, the
concerns raised by Hylla do not beget any such issues.



                                          -14-
      At the core, Hylla was removed because of his individualized insubordination.
There was no union interest in allowing Hylla to conduct himself as he did. His
dispute is purely personal in nature. It does not implicate union interests nor did his
termination threaten to chill TCIU’s democratic governance. As such, Hylla’s claim
that he was terminated for such conduct is not protected under § 101(a)(2) and
therefore the courts lack jurisdiction of the claims under § 102 of the LMRDA.

                                   C. PRETEXT

      As a final matter, Hylla contends on appeal that the district court erred by not
considering whether TCIU’s reasons for terminating him were pretextual. In this
regard, Hylla alleges in his brief that TCIU removed him from his position not
because of his conduct on November 14, 2005, but rather because he “had policy and
philosophical clashes with Swanson over how best to represent the membership, how
to handle cases where a railroad had disciplined or fired a member, and other issues.”
Although a § 101(a)(2) action may arise if a dismissal were “part of a purposeful and
deliberate attempt ... to suppress dissent within [a] union,” 

n.7
(quotations omitted), Hylla did not sufficiently raise this argument below.

        In Hylla’s complaint, he merely alleged that he was removed from his elected
office “because [he] exercised his right to engage in free speech, to meet and assemble
freely with other members, and to express his views relative to the business of” TCIU.
The general allegations in Hylla’s complaint cannot be said to raise an issue of pretext
and pretext is never alleged. In any case, after Hylla’s complaint was filed, TCIU, in
its motion to dismiss or, alternatively, for summary judgment, supplied the facts that
it believed to underlie Hylla’s claim. In this regard, TCIU asserted that Hylla was
terminated because of (1) his remark towards Swanson, and (2) his conduct towards
Gilbertson. Although Hylla’s response disputed that he was terminated for his
conduct towards Gilbertson, Hylla himself asserted that “the real reason [he] was
initially suspended and removed from office was because the heated content of his

                                         -15-
conversation with ... Swanson and [his] use of the f*** word.” (Emphasis added.)
Similarly, a heading in Hylla’s response read:

      PLAINTIFF WAS SUSPENDED AND REMOVED FROM
      ELECTIVE OFFICE BECAUSE HE EXERCISED HIS RIGHT TO
      FREE SPEECH IN A HEATED DISCUSSION ABOUT UNION
      POLICIES WITH GENERAL CHAIRMAN SWANSON AND NOT
      BECAUSE OF A MATTER OF “PURELY PERSONAL
      INTEREST”.

       Incongruously, under this heading Hylla inserts a single paragraph that argues
“it could very well be concluded that what took place on the day in question was a
pretext to remove him for internal union political reasons.” This statement is too
abbreviated and equivocal to properly raise before the district court or to preserve for
appeal an argument based on pretext. This is particularly so given Hylla’s
unequivocal and prominent statements that the real reason he was fired was because
of his remarks to Swanson – precisely one of the reasons advanced by TCIU for his
firing.5

       Not surprisingly, given the lack of any such claim in Hylla’s complaint, the lack
of a pretext argument offered in Hylla’s response, and Hylla’s affirmative statement
that he was fired for one of the precise reasons articulated by TCIU, the Magistrate,
to whom the district court referred the matter for a recommended disposition, did not
consider any claim of pretext in his report and recommendation.

     It was only thereafter, in objecting to the Magistrate’s report and
recommendation, that Hylla developed his pretext argument, asserting in part that his


      5
          The only other mention of the term “pretext” in Hylla’s response was in
relation to his state law defamation claims.
                                         -16-
      theory of this case is that he was removed and then banished from office
      for his lifetime not because of his use of a profanity toward Swanson or
      because of the incident with Gilbertson, but because of internal union
      policy and political considerations.

       It was too late, however, for Hylla to offer this new, contradictory theory. In
Roberts v. Apfel, 

, 470 (8th Cir. 2000), this court considered “whether
a claimant may make arguments in his objections to a magistrate judge’s report when
those arguments have been neither argued to the magistrate judge nor addressed in the
judge’s report adopted by the district court, and then obtain review of them on
appeal.” In answering this question negatively, the court asserted that “[t]he purpose
of referring cases to a magistrate for recommended disposition [is] contravened if
parties [are] allowed to present only selected issues to the magistrate, reserving their
full panoply of contentions for the trial court.” 

A contrary
rule “would allow a claimant to raise new claims to the district court and thus
effectively have two opportunities for judicial review.” 

because Hylla
did not adequately present his pretext claims to the Magistrate, and the Magistrate’s
“report adopted by the district court” did not consider those claims, the district court
did not err in failing to exhaustively consider those claims, and we decline to consider
them on appeal. 

      For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                         -17-