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Garity v. APWU National Labor Organization

United States Court of Appeals, Ninth Circuit

July 5, 2016

Rosemary Garity, Plaintiff-Appellant,
APWU National Labor Organization, Defendant-Appellee.

          Argued and Submitted November 3, 2015 Pasadena, California

         Appeal 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, Circuit Judges.

         SUMMARY [*]

         Labor Law

         The panel reversed the district court's dismissal of disability discrimination and retaliation claims brought against a union under the Americans with Disabilities Act.

         The 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.


          Bybee Judge

         Rosemary 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.

         Garity 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.

         The 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.


         A. Facts

         Garity 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.[1] 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 accommodations.

         In 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.

         In the 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."

         According 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.

         In 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 11, 2011.

         B. Procedural History

         In July 2011, Garity filed two separate complaints against APWU in federal court.[2] 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.

         Garity's 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 and 1986.

         In 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.

         1. Complaint One

         After 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.).

         2. Complaint Two

         After 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, [3] 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."

         A few 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.

         Despite 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 ...

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