Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1988)

MEMORANDUM^** 

Plaintiff/Appellant, Carolyn Ruth Sanford, (Sanford) appeals pro se from the district court's grant of summary judgment in favor of Defendants/Appellees, Alameda-Contra Costa Transit District (AC Transit), Amalgamated Transit Union Local 192 (union) and various individual AC Transit employees and Union officials. Additionally, Sanford seeks review of the order denying her motion to compel a response to interrogatories and the district court's protective order preventing her from filing any further lawsuits arising from the same incidents against appellees. Sanford contends on appeal that material issues of fact were in dispute rendering summary judgment improper, and that the district court abused its discretion with respect to the discovery and protective orders. We disagree and affirm. We discuss Sanford's contentions and the facts pertinent thereto under separate headings.

STANDARD OF REVIEW

We review a grant of summary judgment independently without deference to the district court's rulings. Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987), cert. denied, 109 S. Ct. 3155 (1989) (citing Lojeck v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983)). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

A party opposing summary judgment must present evidence showing that there is a genuine issue for trial. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc). The evidence must be sufficient to convince a "fair-minded" jury by a preponderance of the evidence to return a verdict for the plaintiff. Id.

We set forth the standards of review for the denial of a discovery motion and for a protective order below.

CIVIL RIGHTS CLAIMS

Sanford contends that material issues of fact exist concerning her allegations of Civil Rights violations under 42 U.S.C. sections 1983 and 1985(3).

1984 ALTERCATION

On September 27, 1984 Sanford had an altercation with Union Vice President, Edgar S. Jackson (Jackson) outside the Personnel office at AC Transit's headquarters. Sanford states she came to the AC Transit offices and left a letter with a secretary. When Jackson picked up the letter Sanford attempted to retrieve it without success and a scuffle ensued. Jackson's calls for assistance brought other AC Transit personnel to the scene at which time the altercation ended.

Shortly after the September 27, 1984 altercation, a police officer was summoned. The officer took a report and Jackson signed a statement. On November 26, 1984 Sanford was arrested and released for arraignment scheduled for January 17, 1985. Sanford alleges in her complaint that the criminal charges were dismissed on December 2, 1985.

In response to the incident that occurred on September 27, 1984, AC Transit and the union conducted independent investigations and obtained statements from the witnesses. Following the investigation, AC Transit proceeded with disciplinary action and on October 30, 1984 sent Sanford a notice indicating she "may be discharged." A hearing was held on November 20, 1984 at which time Sanford was represented by the union. The threatened termination was reduced to a five-day suspension. Although the five-day suspension was not appealed, Sanford admits she was never required to serve the suspension, nor did she lose pay as a result of the discipline.

Sanford contends her criminal arrest in connection with the September 27, 1984 altercation satisfies the requirement of a deprivation of rights for a civil rights claim. She asserts the "false statements" made by Union Vice President Jackson and witness Mishik Movessians "caused" her arrest for battery.

Under the law of this circuit, we require a plaintiff to show how the alleged false statements to law enforcement officials proximately caused the arrest. Arnold v. IBM, 637 F.2d 1350 (9th Cir. 1981). A plaintiff has no cause of action against his employer or its employees for their assistance in an investigation which leads to the plaintiff's arrest. Arnold v. IBM, 637 F.2d at 1356. Similarly, in King v. Massarweh, 782 F.2d 825 (9th Cir. 1986), we held that a landlord who called the police to resolve a rent dispute was not liable for police conduct which allegedly violated the tenant's civil rights. Id. at 828-29.

Sanford baldly asserts that the statements made to the police "caused" her arrest. This assertion alone is insufficient to establish the proximate causation required by the law of this circuit for a section 1983 claim. Furthermore, the record is devoid of any evidence that appellees' conduct induced the officer to make the decision to arrest Sanford.

1985 SEARCH

On August 6, 1985, at 12:45 a.m., AC Transit Supervisor DeBusk boarded Sanford's bus. Because he suspected that she was carrying a tape recorder, he requested her to show him the contents of her pockets. Sanford had received previous warnings concerning tape recorders and was informed company policy prohibited their usage. Sanford refused Supervisor DeBusk's order and was purportedly suspended. There is no evidence, however, that the discipline was ever implemented.

Sanford contends the August 6, 1985 episode constituted an unlawful search and a violation of the Fourth Amendment. The Fourth Amendment is applicable to a search that involves an invasion of a reasonable expectation of privacy. United States v. Humphries, 636 F.2d 1172 (9th Cir. 1980), cert. denied, 451 U.S. 988 (1981) (entry into driveway to observe vehicle was not a search because officer did not move bushes or other objects to make his observations).

Sanford had no expectation of privacy on the public bus she was employed to drive. She had a reasonable expectation of privacy concerning a search of the clothing she wore. Sanford's own testimony reveals that Supervisor DeBusk did not search her clothing. He asked her to reveal the contents of her pockets. Sanford refused to comply. No unlawful search occurred.

1986 DISCHARGE

Sanford was discharged a second time in October, 1986 on the ground that she willfully disobeyed a company rule and a direct order by taping a conversation she had in August with an AC Transit manager without his knowledge. She was again represented by the union.

On October 9, 1986, a union representative (appellee Lloyd Campbell) and AC Transit acting superintendent (W.F. Schmid) held a first-level hearing without Sanford at which time an August 22, 1986 adverse letter regarding the taping was sustained and changed from "you may be discharged" to "you are discharged."

The union appealed the decision under the applicable grievance procedure. The arbitrator ordered reinstatement, full back-pay, and a five-day suspension.

On April 30, 1987, Sanford, representatives of the union, and AC Transit met to determine the date Sanford would return to work. The parties agreed upon May 5, 1987. When Sanford claimed she could not return to work because she had no money to clean her uniform, Union President Edward Billie lent her $10.00. Sanford then stated she needed a physical examination for her driver's license renewal. AC Transit attorney Daniel J. Ready set up an appointment.

On May 4, 1987 Sanford wrote AC Transit attorney Ready, claiming that she could not return to work because she did not have automobile insurance coverage. Sanford did not return to work on May 5 and AC Transit and the union promptly notified her that one of the potential consequences of her failure to appear would be discharge, and rescheduled her return date for May 11, 1987.

On May 9, 1987 Sanford wrote to AC Transit stating that she could not accept the "offer of reinstatement due to my present physical condition." The letter was received by AC Transit on May 12, 1987.

AC Transit notified Sanford she was discharged for failure to return to work on May 15, 1987. Sanford did not file an appeal nor request the union to intercede on her behalf even though the discharge was expressly subject to the grievance procedures under the collective bargaining agreement.

Sanford argues her right to procedural due process was violated because appellees Campbell (union) and Schmid (AC Transit) held a hearing on October 9, 1986 without notice to her, in violation of the collective bargaining agreement.

"Procedural due process is governed by a two-step analysis. First, we must determine whether a liberty or property interest exists entitling an individual to due process protections; [s]econd, if a constitutionally protected interest is established, a balancing test is employed to determine what process is due." Hewitt v. Grabicki, 794 F.2d 1373, 1380 (9th Cir. 1986) (citations omitted). An expectation of continued employment is recognized as a property interest safeguarded by due process. Board of Regents v. Roth, 408 U.S. 564, 576-577 (1972).

Sanford had a protectable property interest in continued employment with AC Transit, however, she has failed to demonstrate a deprivation. She did not lose her employment. The termination was rescinded after arbitration and replaced with a five-day suspension which Sanford did not appeal.

DISCRIMINATION PROTEST

In July of 1984 Sanford purportedly discovered that a fellow AC Transit employee, Barbara Young (Young) was the alleged victim of discrimination by their employer. In her opposition to the motion for a summary judgment Sanford states she spoke to Union Vice President Jackson on August 29 and September 5, 1984 about the "Young case." Sanford also asserts that she assisted Young in filing discrimination charges against AC Transit. Ultimately, a civil case was filed, Young v. AC Transit (N.D. Cal.) C85 8332 TEH. Sanford contends that this 1984 incident is related to the 1986 discharge discussed above.

Sanford contends her first amendment right to freedom of speech was violated when AC Transit and the union allegedly "retaliated" against her for protesting the discrimination policies of the two organizations. Sanford does not explain however, how she was prevented from exercising her right of free speech. The record does not indicate any deprivation. The retaliation alleged by Sanford is redressable in a Title VII action. A "violation of rights created by Title VII cannot form the basis of Sec. 1983 claims." Learned v. City of Bellevue, 860 F.2d 928, 933 (9th Cir. 1988), cert. denied, 109 S. Ct. 1530 (1989) (emphasis in original).

CONSPIRACY CLAIMS

Sanford also states that the district court erred in dismissing her conspiracy claim under section 1983. She additionally alleges a conspiracy claim under Sec. 1985(3). "In order to make a good claim under 42 U.S.C. § 1985(2) and (3), a complaint must allege invidiously discriminatory class-based animus. It must allege facts showing this invidiousness." A & A Concrete, Inc. v. White Mountain Apache Tribe, 676 F.2d 1330, 1333 (9th Cir. 1982), cert. denied, 476 U.S. 1117 (1986) (citations omitted).

Sanford did not produce any evidence that the appellees discriminated against her due to her race or sex. In fact, many of the persons named in Sanford's complaints as party defendants are themselves blacks and/or females. The district court did not err in dismissing her conspiracy claim.

TITLE VII CLAIM

Sanford asserts she was discharged because she helped another AC Transit employee file a discrimination charge (the "Young case").

On October 8, 1986 AC Transit acting superintendent W.F. Schmid testified in Young v. AC Transit (N.D. Cal.) C85 8332 TEH that a letter changing the discipline from "you may be discharged" to "you are discharged" was sent to Young in error. The next day Schmid sent an adverse letter to Sanford. Later, she was informed that she would be discharged without notice of an appeal hearing in violation of the collective bargaining agreement.

Title VII 42 U.S.C. § 2000e-3 provides it is an unlawful employment practice for an employer to discriminate against his employees because they have opposed an unlawful practice or participated in an investigation, proceeding, or hearing. Sanford was discharged nearly two years after she assisted Young in filing her discrimination complaint. "To overcome defendant's motion for summary judgment in employment discrimination action, plaintiff must offer facts sufficient to establish prima facie case." Meyer v. California and Hawaiian Sugar Co., 662 F.2d 637 (9th Cir. 1981). The Supreme Court set forth the procedure that must be followed in employment discrimination actions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). First, the plaintiff must show a prima facie case of discrimination. If the plaintiff succeeds in proving a prima facie case, the burden of producing evidence shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the action. If the defendant meets this burden, the plaintiff must convince the trier of fact by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons for the challenged action, but rather, a pretext for discrimination. Id.

"Under Title VII a plaintiff must prove intentional discrimination to make out a discrimination claim using a disparate treatment theory." See Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1988), cert. denied, 109 S. Ct. 3155 (1989) (citing Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982)) (unsuccessful black applicant brought an action against the county and county employees for discrimination contending portion of application which contained racial and other demographic material was improperly used in the hiring process).

A discharge two years after the employee engaged in protected activity simply fails to establish that the employer's action was motivated by the employee's prior conduct. The evidence produced by Sanford does not constitute a prima facie showing of intentional discrimination.

Sanford also claims that the fact that she was discharged without a hearing demonstrates discrimination. We disagree. Denial of a pretermination hearing may demonstrate a procedural due process violation, see Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), but it does not demonstrate intentional racial or sexual discrimination.

Sanford also asserts the fact that Jackson was elected president of the union, and that the union's assumption of appellee Mishik Movessians' defense costs in this action demonstrate racial discrimination. The record does not support these contentions. Instead, the uncontradicted evidence shows that Sanford was not permitted to run for union office due to her failure to attend the requisite number of union meetings for that year. The refusal of the union to pay Sanford's legal fees in the criminal proceeding or for this action may establish disparate treatment but it does not prove intentional sexual or racial discrimination.

DUTY OF FAIR REPRESENTATION

Sanford contends the union breached its duty of fair representation in violation of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. section 185. This contention lacks merit. The LMRA does not apply to a state created agency. 29 U.S.C. section 152(2). The labor relations between AC Transit and the union are controlled by California Public Utilities Code sections 25051 et seq.

Appellees advised the district court that LMRA section 301 was inapplicable and that the duty of fair representation was governed by state law. The district court did not rule on this contention. Instead, the district court concluded that Sanford failed to "assert that the union's conduct was irrational, intentional or egregiously unfair...." "The general rule is that an appellate court may affirm the district court's grant of summary judgment on any basis supported by the record. If the opinion below was correct, it must be affirmed, even if the district court relied on wrong grounds or wrong reasoning." Plaine v. McCabe, 797 F.2d 713, 722 (9th Cir. 1986) (citations omitted).

A claim for breach of the duty of fair representation may not be maintained against individual union officers.

It has long been recognized that union officers and employees are not individually liable to third parties for acts performed as representatives of the union in the collective bargaining process.

Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986).

Sanford's claim against AC Transit is without merit because she has failed to present a viable claim of a breach of fair representation by the union. An employer is not liable for actions arising out of a collective bargaining agreement unless the union has breached the duty of fair representation. Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980).

FLSA CLAIM

Sanford alleges in her opening brief that " [t]he Fair Labor Standards Act addressed things that the collective bargaining agreement denied appellant, i.e., come-see-mes." Sanford has failed to identify any factual or legal theory upon which her FLSA claim is based.

ENFORCEMENT OF ARBITRATION AWARD

In her third and fourth complaints, Sanford seeks an order enforcing the award rendered by the Arbitration Board following the April 16, 1987 hearing. She requests implementation of the provisions regarding her reinstatement and back pay.

The Order of the Arbitration Board specifically states: "The Arbitration Board retains jurisdiction to resolve any questions that may arise concerning the implementation of this order." (emphasis added) Sanford has failed to demonstrate that she presented her claims regarding the award with the Board before filing this action.

Failure to exhaust nonjudicial remedies is a matter in abatement and should be treated as a motion to dismiss if raised in a motion for summary judgment. Ritza v. Intern. Longshoremen's and Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1988) (citing Stauffer Chemical Co. v. Food and Drug Admin. 670 F.2d 106 (9th Cir. 1982)). "The distinction between summary judgment and dismissal for matters in abatement bears on the district court's authority to resolve factual disputes and thus affects the standard of review to be applied by this court ..." Ritza, 837 F.2d at 369. The factual determinations are reviewed under the clearly erroneous standard. Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985). The application of substantive law is reviewed independently. Ritza, 837 F.2d at 369 (citing United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984)).

The Board's order directed Sanford to present any questions concerning implementation of the award to that body. She failed to do so. The failure to exhaust her nonjudicial remedy bars Sanford from seeking enforcement of the award in the district court.

PENDENT STATE CLAIMS

Sanford contends her pendent state claims are independent of the collective bargaining agreement and must be considered on their merits.

California has not addressed the question whether state labor law principles would subsume state tort claims which are intertwined with collective bargaining agreements. Cf. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988). We must use our best judgment to predict how the California courts would decide this question. City of Angoon v. Hodel, 836 F.2d 1245, 1246 (9th Cir. 1988) (citing Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980).

The California courts' application of federal labor law preemption to state claims reveals that they have been persuaded by federal precedent in this field. See Sarro v. Retail Store Employees Union, 155 Ca.App.3d 206, 202 Cal. Rptr. 102 (Cal.App. 1 Dist.1984).

We conclude that California courts would apply federal labor law precedents concerning the effect of a collective bargaining agreement on intertwined causes of action. Cf. Pescosolido v. Maddock, 172 Cal. App. 3d 230, 218 Cal. Rptr. 165 (Cal.App. 5 Dist.1985) (federal decisions interpreting the NLRA relied upon to interpret provisions of California's Agriculture Labor Relations Act).

Under federal law it is well established that state tort law claims may be preempted where the union and the employer entered into a collective bargaining agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). The California courts have adopted the federal law and barred plaintiffs from recovering on tort claims based on allegations of employer wrongdoing or union breach of duty of representation where there is a collective bargaining agreement. Sarro v. Retail Store Employees Union, 155 Cal. App. 3d 206, 202 Cal. Rptr. 102 (Cal.App. 1 Dist.1984) (federal law preempted state tort and contract law on which union member predicated counts of her complaint remaining after dismissal of cause of action under federal law for failure to state a claim).

The federal labor law preemption of state tort claims applies when state tort law "purports to define the meaning of the contract relationship." Allis-Chalmers Corp., 471 U.S. at 213. If the tort claim arises from "nonnegotiable state-law rights of employers or employees independent of any right established by contract" the claim will survive. Id. However, if the tort claim "is inextricably intertwined with consideration of the terms of the labor contract" it is preempted. Id.

Sanford's malicious prosecution and abuse of process claims are barred by the one-year state statute of limitations in Cal.Code of Civ.Proc. Sec. 340. Sanford's remaining tort claims are intertwined with the rights covered in the collective bargaining between AC Transit and the union.

DISCOVERY ORDER

Sanford argues that the district court erred in entering summary judgment while her discovery motion was pending. The validity of discovery rulings are normally reviewed for abuse of discretion. Hatch v. Reliance Ins. Co., 758 F.2d 409, 416 (9th Cir. 1985), cert. denied, 474 U.S. 1021 (1985). Here, however, the district court did not address the merits of Sanford's motion to compel answers to interrogatories, but rather declared the motion as "moot" after granting the defendant's motion for summary judgment. (CR 175 at page 7). As no discretion was exercised by the district court, the discovery motion presents a legal question which we must review independently. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518-1519 (9th Cir. 1987).

"We generally disfavor summary judgment where relevant evidence remains to be discovered." Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (citing Taylor v. Sentry Life Ins., 729 F.2d 652, 656 (9th Cir. 1984) (per curiam)). The burden is on the nonmoving party to make clear what information is sought and how it would preclude summary judgment. Hall v. State of Hawaii, 791 F.2d 759, 761 (9th Cir. 1986).

The gravamen of Sanford's contention is that she was not permitted sufficient discovery to obtain information essential to defeat the summary judgment motion. The requested discovery (77 pages containing 544 interrogatories) includes: 1) information about current and former AC Transit employees; 2) Sanford's time and pay cards from October 1984 to her final discharge; and 3) information about runs and hours for the entire year of 1987. Sanford argues in her opening brief that her pay records are necessary to prove AC Transit did not pay her according to the collective bargaining agreement. The record, however, reveals that AC Transit provided Sanford with responses to the pay grievances. The employee information was sought to enable Sanford to subpoena the individuals for trial. There is no explanation of need as to Sanford's request for the 1987 route information. Sanford did not work in 1987.

The record shows that extensive discovery was conducted by Sanford. In light of the discovery material furnished by the defendants the district court did not err in denying the motion for further discovery.

PROTECTIVE ORDER

Sanford contends the district court abused its discretion by issuing an order protecting appellees from further lawsuits arising out of the events that were the subject of the dismissed actions.

An order limiting a plaintiff's ability to file a civil action is reviewed for abuse of discretion. Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984).

The record reveals that Sanford has filed four actions based upon the same incidents. Many of Sanford's legal theories appear in more than one complaint and Sanford's fourth complaint (petition to enforce the Arbitration Award) is a duplicate of the third action. On March 29, 1988 the district court consolidated all four actions for discovery, law and motion, and trial purposes pursuant to Rule 42(a) of the Federal Rules of Civil Procedure.

Based on a finding that Sanford had abused the judicial process, the district court issued an order prohibiting Sanford from filing any further actions against appellees arising from the same set of facts.

Sanford has had four opportunities to file complaints arising from the same set of facts. The repetition of legal theories throughout her complaints indicates she has fully researched and exhausted the causes of action available to her based on the alleged misconduct of the defendants. The district court's order is narrowly drawn and addresses only claims involving the incidents of the dismissed actions. Under the facts of this case, the issuance of the protective order was not an abuse of discretion.

AFFIRMED.