and Submitted November 3, 2015 Pasadena, California
from the United States District Court No.
2:11-cv-01109-PMP-CWH for the District of Nevada Philip M.
Pro, Senior District Judge, Presiding
Matthew O'Brien (argued) and Justin Beck (argued),
Certified Law Students, Pepperdine University School of Law,
Malibu, California; Jeremy B. Rosen, Horvitz & Levy LLP,
Encino, California; for Plaintiff-Appellant.
Michael R. Hall (argued) and Matthew A. Walker; Hall, Jaffe &
Clayton; Las Vegas, Nevada; for Defendant-Appellee.
Before: Jerome Farris, Jay S. Bybee, and N. Randy Smith,
panel reversed the district court's dismissal of
disability discrimination and retaliation claims brought
against a union under the Americans with Disabilities Act.
district court held that the ADA claims were barred by issue
preclusion because of a ruling in a prior case that the union
had not breached its duty of fair representation. Agreeing
with the Seventh Circuit, the panel held that a prima facie
claim of disability discrimination against a union does not
require a showing of a breach of the duty of fair
representation. Accordingly, the plaintiff's claims were
not barred by issue preclusion. The panel also held that the
ADA complaint was not barred by claim preclusion. It remanded
the case to the district court for further proceedings.
Garity, a clerk at the United States Postal Service office in
Pahrump, Nevada, suffers from a litany of physical and
emotional disabilities. Despite her willingness to perform
her job duties, Garity repeatedly complained to her
representatives at the American Postal Workers Union, AFL-CIO
("APWU") that postal service management refused to
accommodate her disabilities. Garity alleges that APWU,
rather than filing and processing her grievances, sided with
management, discriminating and retaliating against her
because of her disabilities.
brought two complaints against APWU in federal court,
alleging a contractual breach of APWU's duty of fair
representation in the first, and alleging a series of
violations of the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101 et seq.,
and Nevada state tort laws in the second. After two different
district court judges determined that Garity's complaints
should proceed as independent actions, one district court
judge (Dawson, J.) dismissed Garity's first complaint,
finding that, though APWU's behavior towards Garity may
have been negligent, APWU's actions were not a breach of
its duty of fair representation. In light of this judgment, a
second district court judge (Pro, J.) tossed Garity's
second complaint, ruling that, because a prima facie claim of
disability discrimination against a union necessarily
required a showing of a breach of the duty of fair
representation, Garity's ADA claims were barred by the
issue preclusion doctrine. Garity had failed to prove a
required element in her first complaint, the district court
explained, and there was no need to re-litigate that element
in her second complaint.
question before us is whether a prima facie claim for
disability discrimination against a union necessarily
requires a showing that the union breached its duty of fair
representation. If so, the district court's application
of the issue preclusion bar was proper and Garity's ADA
claims fail; if not, Garity's ADA claims survive. We
endorse the Seventh Circuit's reasoning in Green v.
American Federation of Teachers/Illinois Federation of
Teachers Local 604, 740 F.3d 1104 (7th Cir. 2014), and
hold that a prima facie disability discrimination claim
against a union does not require that a plaintiff demonstrate
that the union breached its duty of fair representation.
Accordingly, Garity's ADA claims are not barred by issue
preclusion, and we reverse and remand to the district court
for further proceedings.
began working as a clerk at the United States Postal Service
office in Pahrump, Nevada in 2008, and served as the
"shop steward" of Local #7156-the Pahrump affiliate
of the APWU-from 2009 to 2011. Garity describes herself as
"a disabled individual" suffering from a range of
"physical and mental impairments" that include
"heel spurs, chest pain, chronic fatigue, sleep
disturbance, osteoporosis[, ] myalgia, muscle spasms and . .
. cancer, " as well as "anxiety disorder, major
depressive disorder, [and] panic attacks." Despite her
conditions, Garity asserts that she can "perform the
essential functions of many of the duties available" as
long as Postal Service management provides her with proper
2010, Debra Blankenship was appointed postmaster of the
Pahrump office. In response to perceived instances of
favoritism and disparate treatment observed under the new
leadership, Garity and other postal employees filed a hostile
work environment grievance. At around the same time, Kathi
Poulos was elected president of Local #7156, and Garity
alleges that, though Poulos acknowledged Garity's
grievance as "valid, " she refused to process it.
After Garity was unable to attend a grievance meeting in Las
Vegas in early 2011 due to her disabilities, Poulos removed
Garity from her shop steward position and appointed herself
to the position the next day. As part of Poulos's new
duties as shop steward, she was responsible for filing
employment grievances raised by Garity and other Local #7156
members with Postal Service management.
months that followed, Garity forwarded a litany of grievances
to Poulos, alleging that management improperly delayed the
mail, sent her home early without pay, and committed various
acts of retaliation and harassment against her. Garity
informed Poulos that "the contract had been
violated" and reminded Poulos that it was her "job
to represent employees, " but alleged that Poulos
"did not investigate or file any of [her]
grievances." Because Poulos "either wo[uld]n't
[file] or ha[d] agreed with management to not file
grievances, " Garity alleges in her complaint,
"[m]anagement [was] well aware that they c[ould] do
anything they want[ed] to [her] with no repercussions."
to Garity, conditions in the Pahrump post office continued to
deteriorate throughout 2011. In January, Garity asked Poulos
to file a series of grievances stemming from an adverse
disciplinary action taken against her by management, but
Poulos refused, stating that she "already had too many
grievances" to process and choosing instead to withdraw
roughly a dozen of Garity's previously filed grievances.
In February, the Pahrump office's management convened a
meeting to discuss work assignments that accommodated
Garity's disability, but rather than finding her
appropriate tasks, post office management simply cut
Garity's work hours. Stonewalled by Poulos, Garity
approached an alternate APWU shop steward to see if he would
file her grievances, but fared no better. And after Poulos
refused to file additional grievances, withdrew others, and
failed to represent her in the proceedings on still others,
Garity filed Equal Employment Opportunity Commission
("EEOC") and National Labor Relations Board
("NLRB") complaints against her union for
discrimination in February and March.
April of 2011, Garity alleges that she was suspended for
thirty days after an incident in which Garity refused to go
into a room alone with a male employee against whom she had
pending sexual harassment charges. An altercation with
Blankenship ensued, and Poulos was called to the office.
Garity alleges that Poulos did not sufficiently defend her in
a three-page letter Poulos later wrote describing the
incident, and that the letter was in fact used to justify
Garity's suspension. Garity complained about Local
#7156's actions to the national APWU to no avail, and,
after repeatedly requesting additional disability
accommodations, Garity was fired from her position on June
2011, Garity filed two separate complaints against APWU in
federal court. Her first complaint ("Complaint
One") alleged that APWU breached its duty of fair
representation by violating provisions of its collective
bargaining agreement. Garity, acting pro se, styled these
claims as "breach of contract" claims. This
complaint was assigned to the Honorable Kent Dawson of the
District of Nevada.
second complaint-the one at issue here-was assigned to the
Honorable Philip Pro of the District of Nevada
("Complaint Two"). In this complaint, Garity
pleaded claims for disability discrimination under Title VII
of the Civil Rights Act of 1964 and the ADA, Nevada state
tort claims for negligent retention and intentional
infliction of emotional distress, and claims for conspiracy
to deprive her of rights under 42 U.S.C. §§ 1985
August 2011, Garity filed a "Motion to Keep Cases
Separated as Originally Filed, " explaining that her
"claims of discrimination and the tort claims clearly
involve different questions of law from breach of
contract/failure to represent, breach of the APWU
Constitution, . . . etc." Five days later, the APWU
moved to consolidate Garity's two complaints into a
single case, arguing that though "the legal claims
differ, the facts alleged [in the two complaints] are
virtually identical." In October 2011, in an unexplained
order, Judge Pro granted Garity's motion and denied
APWU's motion. Three months later, Judge Dawson also
denied APWU's motion, finding that the "Defendants
have failed to show that both complaints contain common
questions of law or fact sufficient to justify consolidating
them." Accordingly, both claims proceeded independently.
giving Garity a chance to amend her complaint, Judge Dawson
granted APWU's motion to dismiss Complaint One with
prejudice on July 18, 2012. The court found that Garity's
"claims [were] an amalgam of legal conclusions"
that did not support the proposition that "Defendants
breached their duty of fair representation." The court
recognized that the union is afforded wide latitude to attend
to its internal business and found that Garity's
"factual allegations" suggested "at worst
negligence." Garity appealed the court's decision in
Complaint One to this court, and we affirmed Judge
Dawson's dismissal order in a unanimous memorandum
disposition. Garity v. APWU-AFL-CIO, 585 F.App'x
383 (9th Cir. 2014) (mem.). The Supreme Court denied
Garity's petition for a writ of certiorari. Garity v.
APWU-AFL-CIO, 136 S.Ct. 71 (2015) (mem.).
Garity filed an amended complaint including additional
factual details, Judge Pro granted in part and denied in part
APWU's motion to dismiss. Beginning with Garity's ADA
claims,  the district court found that Garity had
stated a claim for disability discrimination. The court
explained that Garity had adequately alleged that
APWU-"motivated, at least in part, by animus towards
[Garity]'s disabilities or requests for
accommodation"- "refused to file grievances and
joined in [the Postal Service's] discriminatory
practices, " triggering a series of adverse employment
actions. The district court also determined that Garity had
"pled sufficient facts" to support her retaliation
claim, noting that she had raised the inference of a
"causal link" between protected activity, like
filing union grievances, and her suspension and termination.
The district court, however, granted APWU's motion to
dismiss as to Garity's hostile work environment claim,
noting that, though Garity had demonstrated that "she
subjectively found her work environment hostile and abusive,
" she had not shown that a "reasonable person"
would agree or that any "mental abuse, harassment, or
bullying" was "based on her disability."
months later, APWU took another crack at Garity's
complaint in a new motion to dismiss. Pointing to our
decision in Beck v. United Food and Commercial Workers
Union, Local 99, 506 F.3d 874 (9th Cir. 2007), APWU
argued that an element of a prima facie ADA claim against a
union is a "breach" of the "duty of fair
representation, " and because Judge Dawson previously
dismissed Garity's contractual claims in Complaint One
for failing to allege precisely that element, Complaint Two
was necessarily barred by the doctrine of issue preclusion.
its earlier ruling, the district court reversed course in a
brief order dismissing Complaint Two in full. The court found
that Garity's ADA claims "must be dismissed because
each requires [Garity] to prove the . . . breach of the duty
of fair representation, " a showing that Judge Dawson,
analyzing the same "nucleus of operative facts, "
had previously determined that Garity had not made. The court
did not cite any case law to support its formulation of the
elements of a prima facie ADA claim against a union, nor ...