United States District Court, D. Nevada
ORDER (1) GRANTING THE DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND (2) DENYING THE PLAINTIFFS' MOTIONS
FOR RECONSIDERATION [ECF NOS. 266, 271, 276]
P. GORDON UNITED STATES DISTRICT JUDGE.
Cherie Mancini filed suit to challenge discipline imposed on
her as a member of the Local 1107 union (Local) that removed
her from office as the Local's president and stripped her
of union membership for six months. She and fellow plaintiff
Frederick Gustafson also challenge defendant Service
Employees International Union's (SEIU) imposition of an
emergency trusteeship on the local union. I granted in part
the defendants' motion to dismiss some of the
plaintiffs' allegations. Mancini, ECF No.
The defendants now move for summary judgment on the remaining
claims. The plaintiffs oppose the motion, move for
reconsideration related to a prior motion to amend the
complaint, and move for reconsideration of my dismissal
parties are familiar with the facts, and I set them forth
here only where necessary to resolve the motions. I grant the
defendants' motion for summary judgment. I deny the
plaintiffs' motions for reconsideration.
judgment is appropriate “if the movant shows that 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). A dispute 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); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
one of the complaint alleges the defendants violated the
Labor-Management Reporting and Disclosure Act (LMRDA), 29
U.S.C. § 411(a)(5), by (1) not serving Mancini
personally or by registered or certified mail as required by
the SEIU constitution, (2) not adequately identifying the
charges against Mancini so she could prepare a defense, and
(3) not providing her a full and fair hearing.
Mancini, ECF No. 1 at 8-14. I previously granted the
defendants' motion to dismiss the allegations related to
service and adequate identification of the charges.
Mancini, ECF No. 32 at 2-4. But I read count one to
also contain an allegation that Mancini did not receive a
full and fair hearing because the charges and evidence were
contradictory, she acted in good faith, and the University
Medical Center (UMC) ratification vote took place after
collective bargaining ended so she should not have been
disciplined for interfering in collective bargaining.
Id. at 4. Because the defendants did not move to
dismiss count one in relation to these allegations, the full
and fair hearing portion of count one survived dismissal.
defendants move for judgment on the remainder of this claim,
arguing that Mancini sought only injunctive relief in her
complaint and, to the extent Mancini seeks to restore her
membership rights, that is moot because Mancini's
membership rights have been restored. They also argue that to
the extent Mancini seeks to be restored as president, that is
not an available remedy under § 411(a)(5). Finally, the
defendants argue that even if the claim is not moot, Mancini
received a full and fair hearing because the discipline was
supported by some evidence, which is the applicable standard
for reviewing the union's disciplinary decision. They
also argue that nothing in the LMRDA requires the SEIU to
refrain from disciplining Mancini even if she acted in good
faith; the ratification vote is part of the collective
bargaining process; and regardless of whether there was some
contradiction between the charges and the evidence, Mancini
had adequate notice of the charges against her.
responds that her claim is not moot because she previously
moved to amend to add a request for damages. She contends
that when I denied her motion to amend, I did not address her
request to add damages and that I should do so
Mancini further contends that even if she cannot amend, she
still has an interest in having her discipline declared
unlawful because her suspension from union membership cost
her a reduction in pay, which will affect her future raises,
pension, and other benefits.
merits, Mancini argues that the disciplinary report is based
on an erroneous factual finding that she admitted at the
disciplinary hearing that she did not keep apprised of the
bargaining with employer UMC. Next, she argues the decision
to place the local in a trusteeship was predetermined, and
she was removed as president as part of this plan. She
contends a proceeding with a predetermined result is not a
full and fair hearing. She also asserts that SEIU President
Mary Kay Henry had investigatory, prosecutorial, and
adjudicative power, and reposing all of these functions in a
single person raises due process concerns. Additionally,
Mancini argues the defendants applied the rules differently
to charges brought against her as opposed to charges brought
against other Local members. Specifically, she contends Henry
assumed jurisdiction over the charges against Mancini even
though those charges were filed initially with the SEIU
instead of through the Local and there was no specific
request that the SEIU take jurisdiction over those charges.
She claims that in contrast, when Mancini brought charges
against other members, she was required to first file them
with the Local and then request the SEIU to take
jurisdiction. Finally, she contends all of her allegations
must be viewed collectively to determine if she received a
full and fair hearing.
411(a)(5) provides that “[n]o member of any labor
organization may be fined, suspended, expelled, or otherwise
disciplined . . . by such organization . . . unless such
member has been (A) served with written specific charges; (B)
given a reasonable time to prepare his defense; [and] (C)
afforded a full and fair hearing.” The LMRDA provides a
private right of action for a person whose LMRDA rights have
been infringed. 29 U.S.C. § 412.
Restoration as a Member and President of the Local
complaint sought only injunctive relief for this claim in the
form of being restored to her office as president and having
her suspension from union membership lifted.
Mancini, ECF No. 1 at 14. But § 411(a)(5)
cannot provide relief for removal from office in the union.
United Steel Workers Local 12-369 v. United Steel Workers
Int'l, 728 F.3d 1107, 1117 (9th Cir. 2013) (stating
§ 411(a)(5) applies only to discipline as a member, not
as an officer, of a union). And because Mancini's
suspension as a member of the Local has been lifted, that
requested relief is moot. See Deutsche Bank Nat. Tr. Co.
v. F.D.I.C., 744 F.3d 1124, 1135 (9th Cir. 2014)
(stating a case may become moot “if circumstances have
changed since the beginning of litigation that forestall any
occasion for meaningful relief” (quotation omitted)).
Consequently, the defendants are entitled to summary judgment
on Mancini's first claim unless she can amend to add a
request for damages.
moves for reconsideration of her prior motion to amend her
complaint to add a request for damages and to add new
allegations as to why she did not receive a full and fair
hearing. Garcia, ECF No. 266. As discussed below,
even considering the new allegations, Mancini has failed to
raise a genuine dispute that the defendants denied her a full
and fair disciplinary hearing. I therefore deny Mancini's
motion for reconsideration because amending the complaint
would be futile. Shermoen v. United States, 982 F.2d
1312, 1319 (9th Cir. 1992) (“[A] district court does
not err in denying leave to amend where the amendment would
be futile.” (quotation omitted)).
411(a)(5) “guarantees union members a ‘full and
fair' disciplinary hearing, and . . . this guarantee
requires the charging party to provide some evidence at the
disciplinary hearing to support the charges made.”
Int'l Bhd. of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers & Helpers, AFL-CIO v. Hardeman,
401 U.S. 233, 245-46 (1971). Thus, judicial review is
deferential and evaluates only whether there was “some
evidence” to support the decision. Id.
allegations in the complaint that survived dismissal were
that Mancini did not receive a full and fair hearing because
the charges and evidence were contradictory, she acted in
good faith, and the UMC ratification vote took place after
collective bargaining ended so she should not have been
disciplined for interfering in collective bargaining. Mancini
has not pointed to evidence raising a genuine dispute on any
of these grounds. As to the charges and evidence being
contradictory, it is unclear what Mancini means by this, but
in any event I have already held that Mancini had adequate
notice of the charges against her. Mancini, ECF No.
32 at 3-4; see also Garcia, ECF No. 80 at 43. I also
concluded, and the Ninth Circuit affirmed, that there was
“some evidence” at the evidentiary hearing to
support the discipline imposed on Mancini. Garcia,
ECF Nos. 80 at 45; 175 at 3. The evidentiary record at
summary judgment only bolsters these conclusions. See
Garcia, ECF No. 271-14 (transcript of disciplinary
Mancini's good faith, disciplinary hearing officer Carol
Nieters recognized that Mancini was motivated by a legitimate
concern but that discipline nevertheless was warranted.
Garcia, ECF No. 271-18 at 16-17. Mancini cites no
law for the proposition that a union member who acts in good
faith cannot be disciplined or that her good faith somehow
rendered the hearing unfair. Finally, Mancini admitted at her
deposition that the Local's ratification vote is part of
the collective bargaining process and she presents no
evidence that it is not. Garcia, ECF No. 271-3 at
12; see also Mancini, ECF No. 4-8 at 50.
opposition to the defendants' motion for summary
judgment, Mancini does not respond to the defendants'
arguments with respect to any of these allegations and does
not point to evidence that would raise a genuine dispute. The
defendants therefore are entitled to summary judgment on the
full and fair hearing claim based on the complaint's
Proposed New Grounds
offers several new grounds for why she contends she did not
receive a full and fair hearing. Those can be broken into
four general areas. First, Mancini identifies various alleged
flaws in Nieters' decision. Second, she contends that her
due process rights were violated because all relevant fair
hearing functions resided in Henry. Third, she contends
different procedural rules were applied to her charges
against fellow local union members Sharon Kisling and
Patricia Greaux versus Kisling's and Brenda Marzan's
charges against her. Finally, Mancini argues that all of her
allegations must be considered as a whole to determine if she
received a full and fair hearing. As set forth below, Mancini
fails to raise a genuine dispute about whether she received a
full and fair hearing on any of these grounds.
contends Nieters' decision was flawed because (i) the
result was predetermined; (ii) Nieters relied on biased
witness testimony; (iii) Nieters relied on an erroneous
statement of the evidence; and (iv) Nieters ignored the UMC
bargaining team's misconduct. As discussed below, Mancini
does not raise a genuine dispute on any of these grounds.
has not presented sufficient evidence to get to trial on her
allegation that Nieters' decision about Mancini's
discipline was predetermined. Even if I considered
unauthenticated hearsay-upon-hearsay evidence that (1) SEIU
representative Mary Grillo coached Local members on how to
bring charges against Mancini and what charges to bring and
(2) Local members were working with the SEIU to place the
Local into a trusteeship,  there is no evidence that Nieters was
involved in a conspiracy to reach the predetermined result of
removing Mancini from office.
contends that the predetermined result is shown by the fact
that some SEIU officials had discussions about placing the
Local in a trusteeship long before Nieters issued her
decision, some SEIU officials knew what Nieters' decision
was going to be approximately eight days before Nieters
issued it, and those officials planned to approach the
Local's board to vote for a trusteeship after Kisling and
Mancini were removed from office. But Mancini does not point
to any evidence that Nieters was engaged in discussions about
a predetermined result on either trusteeship or Mancini's
the evidence shows that Local members (not the defendants)
started a petition for a trusteeship, filed the charges
against Mancini, asked for a trusteeship at the internal
needs hearing, and pleaded for the SEIU to intervene after
the internal needs hearing. See, e.g.,
Garcia, ECF Nos. 271-10; 271-14; 271-17; 271-27;
292-6. The conditions at the Local continued to deteriorate
after the internal needs hearing. See, e.g.,
Garcia, ECF Nos. 271-17; 291-1; 292-5. And the SEIU
was considering trusteeship as one of several possible
options for addressing the dysfunction at the Local.
Garcia, ECF No. 149 at 21-22. None of those options
discussed removing Mancini from office. Id. And
Mancini does not point to any evidence that Nieters was
involved in the SEIU's internal discussions about a
trusteeship or how Mancini's discipline would impact a
potential trusteeship vote.
even if some individuals at the SEIU were contemplating an
attempt to persuade the Local's executive board to vote
for a trusteeship, that does not raise a genuine dispute that
Nieters' recommendation regarding Mancini's
discipline was a foregone conclusion. And the fact that some
SEIU officials knew what Nieters was going to recommend a few
days before she issued her final decision also does not raise
a genuine dispute that the outcome of that decision was
next contends Nieters relied on witnesses who were biased
against Mancini and in favor of the trusteeship. But it is
not up to me to weigh the credibility of the witnesses at the
disciplinary hearing. Hardeman, 401 U.S. at 246. The
question is whether some evidence supported Nieters'
decision, and the record provided ample evidence that Mancini
was subject to discipline for her actions in publicly
disparaging the bargaining team members and subjecting the
Local to a potential unfair practices charge by UMC. See
id.; Garcia, ECF Nos. 271-1; 271-18 at 16-17.
Erroneous Statement of the Evidence
contends Nieters relied on an erroneous statement of the
testimony when she wrote in her disciplinary report that
Mancini admitted that the no access provision was inserted in
the proposed UMC collective bargaining agreement early in the
bargaining process. In her report, Nieters wrote that
“[a]lthough the evidence did not establish clearly the
point in time when Sister Mancini became aware of that term
in the tentative agreement, it appears that the provision was
negotiated in the first days of bargaining.”
Garcia, ECF No. 271-18 at 16. Nieters cited page 80
of the transcript for the second day of the hearing.
Id.; see also Garcia, ECF No. 271-14 at 350
(page 80 of the transcript of day two).
was citing to a portion of the transcript in which Mancini
states, in a question to a witness, that the no access term
was changed “on the very first day of
bargaining.” Garcia, ECF No. 271-14 at 350.
Mancini also stated during her closing argument that the
change to the no access term was proposed “on the very
first day of bargaining.” Id. at 97.
Nieters' statement in her report therefore was not
groundless. Mancini does not point to evidence that the no
access term was in fact proposed or changed later in the
bargaining process, nor does she identify where in the record
such evidence was presented to Nieters. She thus has not
presented any basis for why Nieters should have ...