Unpublished Disposition, 868 F.2d 1272 (9th Cir. 1986)

MEMORANDUM^* 

Perry H. Haynes (Haynes) brought this action against the appellees, FMC Corporation (FMC) and District Lodge # 93, International Association of Machinists and Aerospace Workers (the union) for breach of a collective bargaining agreement and breach of the duty of fair representation, in violation of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1982), and for discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §§ 621-34 (1982 & Supps. III 1985 & IV 1986) and California Government Code section 12942 (West Supp.1987). Haynes appeals from a summary judgment in favor of FMC and the union. We affirm.

FACTS

Since 1958, Haynes has been an employee of FMC and a member of the union. Haynes was sixty-three years old when he filed his complaint in federal court in 1986. His allegations were based upon FMC's failure to promote him to a higher salary scale, while promoting younger, less experienced workers.

After Haynes' complaint was filed, he received an arbitration award that upgraded him to the salary grade he claimed he was entitled to, retroactive to March 1, 1982. He received back salary in the amount of $24,134.14 for the period from March 1, 1982, through July 1986.

The district court decided that the arbitration award mooted Haynes' allegation that FMC had breached the collective bargaining agreement by demoting him in 1982 and thereafter denying him salary grade advances. The court also found that Haynes had not filed formal grievances and therefore had not exhausted his contractual remedies, precluding him from bringing an action for breach of a collective bargaining agreement, pursuant to Truex v. Garrett Freightlines, Inc., 784 F.2d 1347 (9th Cir. 1985). The court found that the record failed to support Haynes' allegation that the union's conduct was arbitrary, discriminatory, or in bad faith, pursuant to Vaca v. Sipes, 386 U.S. 171 (1967), thus defeating Haynes' claim for breach of the union's duty of fair representation. For those allegations containing specific dates, the court found Haynes' age discrimination complaint time-barred, because he failed to file within one year of the date of the alleged unlawful conduct, as required by California Government Code Sec. 12960 (West Supp.1987).¹  The court also found that Haynes' allegations of "numerous instances" of age discrimination lacked the specificity needed to support his claim. The court then granted the appellees' motion for summary judgment.

Haynes appeals. We review a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). In reviewing decisions of the district court, this court may affirm on any ground finding support in the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986). If the decision below is correct, it must be affirmed even if the district court relied on the wrong grounds or the wrong reasoning. Bruce v. United States, 759 F.2d 755, 758 (9th Cir. 1985).

DISCUSSION

Breaches of The Collective Bargaining Agreement and The Duty of Fair Representation

On appeal, Haynes admits that the arbitration award resolved most of the grievances in his complaint. Appellant's Opening Brief at 8. However, he contends that two of the allegations for breach of the collective bargaining agreement were not resolved by the award: (1) FMC's failure to train him for advancement to a higher salary scale in 1982, and (2) FMC's failure to inform him of opportunities for overtime pay from 1981 until 1986. Id.

Because the arbitration award placed Haynes at the salary grade to which he claimed entitlement as of March 1982, Haynes cannot contend he should have been trained for promotion to that grade. The issue is moot: no genuine issue of material fact remains for trial. FMC is entitled to summary judgment on this issue.

The claim that FMC failed to inform Haynes of overtime opportunities is time-barred. The six-months statute of limitation in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1982), is applicable to employee actions against both an employer for breach of a collective bargaining agreement, and a union for breach of the duty of fair representation. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 154-55 (1983). To oppose a motion for summary judgment, Federal Rule of Civil Procedure 56(e) requires that specific facts be set forth to show that there is a genuine issue for trial. Rule 56(e) does not permit the non-moving party to rest on the mere allegations in the pleading. Haynes presented no evidence outside of his allegations to show that any alleged failure to notify him of overtime opportunities from 1981 to 1986 occurred within the six months prior to the date he filed his complaint on February 26, 1986. Therefore, there is no genuine issue of fact.

This disposition eliminates any claim that may remain that the union breached its duty of fair representation.

Age Discrimination

With respect to Haynes' allegations of age discrimination, the district court ruled:

[T]his court concludes that plaintiff's specific allegations of age discrimination, brought pursuant to Cal.Gov't Code Sec. 12941 (West Supp.1987), are barred by the statute of limitations. Cal.Gov't Code Sec. 12960 (West Supp.1987) provides that an age claim must be filed with the Department of Fair Employment and Housing within one year from the date upon which the alleged unlawful practice occurred. Plaintiff's charge was filed with the Department on August 8, 1985. All of plaintiff's allegations which contain specific instances of age discrimination occurred well before the applicable one year statute of limitations had run.

The district court erred in deciding that California's one-year limitation period for unlawful employment practices barred Haynes' age discrimination claim in federal court. Haynes' complaint was brought not only under Cal.Gov't Code Sec. 12941,²  but under the federal ADEA as well. Complaint, paragraph 22. State limitation periods are irrelevant for purposes of ADEA actions in a "deferral state" like California with an agency, the DFEH, empowered to remedy age discrimination. Bean v. Crocker Nat'l Bank, 600 F.2d 754, 758-59 (9th Cir. 1979) (citing Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)). Thus, an ADEA claimant like Haynes may bring a federal action without having timely commenced state proceedings. See id. at 758. However, we may affirm the district court's grant of summary judgment to the appellees on the claim of age discrimination on other grounds. Bruce, 759 F.2d at 758.

Haynes fails to provide evidence that he was discriminated against on the basis of age. He contends on appeal that " [a]pellees did not present any evidence to dispute appellant's claims of age discrimination. Appellant was thus under no obligation to present evidence of age discrimination." Appellant's Opening Brief at 3-4. This argument has no foundation in the law. As stated previously, Federal Rule of Civil Procedure 56(e) requires the non-moving party to set forth specific facts to show that there is a genuine issue for trial. It does not permit the non-moving party to rest on mere allegations in the pleading. See also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (there is no requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim). Because Haynes presented no specific facts to substantiate the allegations in his complaint that he was subjected to age discrimination, a grant of summary judgment was proper.

AFFIRMED.