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Garity v. APWU-AFL-CIO

United States District Court, D. Nevada

March 14, 2018

ROSEMARY GARITY, Plaintiff,
v.
APWU-AFL-CIO, et al., Defendants.

          ORDER (1) GRANTING DEFENDANT'SMOTIONFOR SUMMARYJUDGMENT; (2) DENYING PLAINTIFF'S MOTION TO STRIKE; AND (3) DENYING DEFENDANT'SMOTIONTOSTRIKE (ECF NOS. 182, 188, 204)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         In 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.

         APWU 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.

         The 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.

         I. ANALYSIS

         A. Garity's Motion to Strike (ECF No. 188)

         Before 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.

         Under 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.

         Garity 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.

         Garity 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.

         Finally, 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.

         B. APWU's Motion for Summary Judgment (ECF No. 182)

         Summary 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.

         The 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).

         1. National APWU's Liability for the Actions of the Local Union

         Garity 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.

         APWU 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.” Id.

         The 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.

         a. Law of the Case

         Garity 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.[1]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 ...


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