United States District Court, D. Nevada
ORDER (1) GRANTING DEFENDANT'SMOTIONFOR
SUMMARYJUDGMENT; (2) DENYING PLAINTIFF'S MOTION TO
STRIKE; AND (3) DENYING DEFENDANT'SMOTIONTOSTRIKE (ECF
NOS. 182, 188, 204)
P. GORDON UNITED STATES DISTRICT JUDGE.
2011, plaintiff Rosemary Garity sued defendants APWU National
Labor Organization (APWU) and its local affiliate, APWU Local
#7156, for various causes of action under federal and state
law based on her experiences working for the United States
Postal Service (USPS) at the Pahrump post office. In 2012,
the local dissolved and was dismissed from the case, leaving
APWU as the lone defendant. Seven years and two trips to the
Ninth Circuit later, only three claims remain: disparate
treatment, failure to accommodate, and retaliation in
violation of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101, et seq.
now moves for summary judgment, arguing that Garity cannot
establish a prima facie case for any of her claims. APWU
contends that it is not liable for the actions of the local,
and that there is no evidence that any of the actions taken
by the national union or its agents were motivated by
Garity's alleged disability or protected activity. Garity
responds that APWU took adverse actions against her,
primarily its inaction in response to actions by the local
and USPS. She also contends that APWU is liable for the
actions of the local, and those actions (including the
handling of union grievances and disciplinary actions) were
discriminatory and retaliatory based on her disability and
pursuit of her rights under the ADA.
parties are familiar with the facts of the case and I will
not repeat them here except where necessary. The local union
was not acting as an agent of APWU, nor did APWU instigate or
ratify the local's actions such that APWU can be held
vicariously liable for them. To the extent any of the
APWU's actions can be understood as adverse, Garity has
not shown that they were motivated by her disability or
protected activity. Therefore, I grant summary judgment to
APWU on all of Garity's claims. I also deny both
parties' motions to strike each other's filings.
Garity's Motion to Strike (ECF No. 188)
filing her opposition to APWU's motion for summary
judgment, Garity moved to strike the summary judgment motion
and objected to APWU's evidence. This motion primarily
consists of arguments that belong in an opposition. ECF No.
188. I granted Garity the ability to file an opposition 15
pages over the typical page limit. ECF No. 185. She did not
request, nor did she receive, permission to file what is
essentially a second brief in opposition to the
defendant's motion. Garity's motion, which goes
nearly line-by-line through the motion for summary judgment,
primarily contains legal argument about issues in the case
and disputes as to APWU's interpretation of the facts.
Federal Rule of Civil Procedure 12(f), I “may strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Under
Rule 56(c)(2), a party “may object that the material
cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.” Even
considering the arguments that might be properly brought in
this motion, I do not find them convincing.
does not argue that the motion for summary judgment is
redundant, immaterial, impertinent, or scandalous. She first
argues that any testimony relied on by APWU that contradicts
the testimony of APWU's Rule 30(b)(6) witness must be
stricken, relying on the sham affidavit rule. Under that
rule, “a party cannot create an issue of fact by an
affidavit contradicting his prior deposition
testimony.” Kennedy v. Allied Mut. Ins. Co.,
952 F.2d 262, 266 (9th Cir. 1991). However, Garity does not
identify any contradictory testimony that should be stricken,
instead pointing to legal argument and citations to documents
in the record, none of which Garity argues were not produced
or are inadmissible in any other way. Moreover, the
contradictions that Garity believes exist between the motion
and the deposition testimony appear to be primarily a
function of her presenting to the court out-of-context
portions of the transcript or her interpretation of the
testimony. This is not sufficient reason to strike every part
of the summary judgment motion that Garity believes is not
supported by the deposition testimony.
next argues that APWU's counsel should be sanctioned
under 28 U.S.C. § 1927 for misrepresenting facts and
misstating the law. Under that statute, attorneys “who
so multiply the proceedings in any case unreasonably and
vexatiously” may be liable for costs and fees. To the
extent that Garity contends APWU's counsel has
perpetrated a fraud on the court, she must show “an
unconscionable plan or scheme which is designed to improperly
influence the court in its decision.” United States
v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1168 (9th
Cir. 2017). Garity produces no evidence (nor does she argue)
that APWU's counsel has unreasonably or vexatiously
multiplied the proceedings. Nor does she produce evidence of
a plan or scheme to defraud the court. Instead, she disputes
APWU's interpretation of the evidence and applicable law.
These are arguments that belong in her opposition and are
insufficient to impose sanctions or find fraud on the court.
Garity argues that certain documents cited by APWU, including
a workplace climate survey and a letter recounting a USPS
meeting about possible workplace accommodations, include
hearsay and should be stricken. I do not rely on these
documents for my rulings, so striking them is unnecessary.
Thus, Garity's evidentiary objections are unavailing, and
I deny her motion.
APWU's Motion for Summary Judgment (ECF No. 182)
judgment is appropriate if the pleadings, discovery
responses, and affidavits demonstrate “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and draw
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenck,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
National APWU's Liability for the Actions of the
claims that the national is responsible for the actions of
its local affiliate. APWU responds that there is no evidence
showing that the local acted as the national's agent or
that the national instigated, supported, ratified, or
encouraged the local's alleged violations of the ADA such
that the national could be liable for these violations.
can be held liable for alleged violations of the ADA by the
local union in two ways. The first is under common law agency
principles. Carbon Fuel Co. v. United Mine Workers of
Am., 444 U.S. 212, 216-17 (1979). “[I]f the local
engages in illegal conduct in furtherance of its role as an
agent of the [national], the [national] will be liable for
the local's actions.” Laughon v. Int'l All.
of Theatrical Stage Emps., Moving Picture Technicians,
Artists & Allied Crafts of the U.S. & Can., 248
F.3d 931, 935 (9th Cir. 2001). On the other hand, “if
the local exercises considerable autonomy in conducting its
affairs, it cannot be regarded as an agent of the [national],
and the [national] accordingly cannot be held liable under an
agency theory for the local's actions.”
Id. In determining whether an agency relationship
exists, I look both to the national's constitution as
well as the actual relationship between the local and the
national. Id. “To analyze the actual
relationship, [I] consider the local's election of its
own officers, ability to hire and fire its own employees,
maintenance of its own treasury and independent conduct of
its daily business as determinative factors.”
national also may be liable for the actions of the local if
the national “instigated, supported, ratified or
encouraged the Local's activities . . . .”
Moore v. Local Union 569 of Int'l Bhd. of
Elec. Workers, 989 F.2d 1534, 1543 (9th Cir. 1993).
“[C]onstructive knowledge of the Local's possibly
illegal activity does not impose on the [national] a legal
duty to intervene.” Id.
Law of the Case
points out that, in ruling on an earlier motion to dismiss,
Judge Pro found that she had sufficiently pleaded facts
showing APWU was vicariously liable for the local's
actions.ECF No. 76 at 21. Garity argues that
APWU's vicarious liability is thus no longer in issue.
APWU responds that Judge Pro's finding meant only that
Garity survived the ...