Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1990)

MEMORANDUM^* 

Appellants Day and Eilmes filed actions against Kaiser under Section 301 of the Labor Management Relations Act for breach of a collective bargaining agreement, and under Wash.Rev.Code Sec. 49.60 for sex discrimination and sexual harassment. Their actions were consolidated below. The parties appeal several pretrial rulings of the district court. We affirm in part, reverse in part and remand.

* The district court granted summary judgment for Kaiser on appellants' claim for breach of the collective bargaining agreement on alternate grounds: (1) the claim was preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("section 301"), and (2) appellants failed to allege a breach of the duty of fair representation by the union and therefore did not state a claim.¹ 

Summary judgment on the first ground cannot stand. Appellants did not allege common-law breach of contract but breach of a collective bargaining agreement. Their suit therefore is not preempted by section 301; on the contrary, it is permitted by the express language of that section.

We affirm dismissal of appellants' breach of collective bargaining agreement claim on the second ground. Although an "employee may, if [she] chooses, sue one defendant and not the other," to prevail against her employer, the employee must show not only that her "discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union." DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 165 (1983) (internal quotations omitted). Appellants did not allege a breach of the duty of fair representation by the union,²  nor did they present any facts tending to show the union breached its duty in the handling of their grievances. See, e.g., Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 593 (9th Cir. 1987) ("The standard for finding a breach is that the union's conduct must be 'arbitrary, discriminatory, or in bad faith.' ") (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)). We affirm summary judgment on this claim.

II

The district court granted summary judgment for Kaiser on appellants' claims, filed December 18, 1985, alleging acts of sex discrimination and sexual harassment occurring before December 17, 1982, as barred by Washington's three-year statute of limitations. See Lewis v. Lockheed Shipbuilding & Constr. Co., 676 P.2d 545, 548 (Wash.App.1984); Wash.Rev.Code Sec. 4.16.080(2). Alternatively, the district court dismissed these claims for failure to comply with Local Rule 13, which requires a timely and specific listing of material facts at issue.

* Appellants argue recovery of damages for pre-1982 incidents is not barred by the statute of limitations because these incidents were part of continuing violations of Washington law. See Henderson v. Pennwalt Corp., 704 P.2d 1256, 1261-62 (Wash.App.1985).

Washington courts look to federal case law in applying the continuing violations doctrine in cases involving invidious discrimination, at least where, as here, no Washington decisions are available. Lewis, 676 P.2d at 549. In finding the pre-1982 incidents were not continuing violations, the district court relied on factors identified in Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983). The three Berry factors are: (1) subject matter--whether the acts involve the same type of discrimination; (2) frequency--whether the acts are recurring or isolated; and (3) permanence--whether the acts have a degree of permanence that should trigger an employee's awareness of the duty to assert her rights, or indicate that continued existence of the conduct is to be expected without a continuing intent to discriminate. Id. at 981. The district court did not explain its application of the Berry factors beyond indicating the incidents about which appellants complained occurred infrequently and at different intervals over a period of years.

In Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989), the Fifth Circuit applied the Berry analysis to facts similar to those in the present case. In Waltman the plaintiff was exposed to sexually explicit graffiti and subjected to verbal and physical harassment by various coworkers and supervisors over a period of several years. Id. at 470-72. Most of the incidents occurred outside the relevant statute of limitations period. Id. at 473.

The Waltman court held the "subject matter" element was satisfied because every alleged incident involved sexual harassment. Id. at 475. The same is true in this case.

The Waltman court held there was an issue of material fact regarding the "frequency" element, i.e., whether the sexual harassment was recurring and not isolated. The court rejected defendant's argument that a company policy of permitting sexual harassment must be shown, and held a continuing violation could also be shown by "producing evidence of a series of discriminatory acts." Id. Appellants offered such evidence in this case. In contrast to the district court below, the Waltman court determined " [t]he fact that not all the incidents of harassment involved the same people does not show a lack of recurrence or frequency," and " [t]he fact that there were gaps between the specific incidents ... does not demonstrate a lack of continuity." Id. at 475-76. Moreover, the Waltman court stated, acts of sexual harassment that create a hostile work environment, as the evidence indicates may have occurred in the present case, usually involve a continuing violation. Id. at 476. Thus, "evidence of individual incidents of harassment coupled with the evidence of sexual graffiti ... could support a finding that the acts of harassment were sufficiently recurrent to create a continuously hostile environment." Id.

Regarding the "permanence" factor, the Waltman court concluded acts of sexual harassment that create a hostile working environment do not have the same degree of permanence or definitive finality as acts such as loss of promotion, and thus are less likely to alert a plaintiff that a violation of her rights has occurred upon which she should act. Id. The Waltman court concluded that in these circumstances there was a genuine issue of material fact as to the existence of a continuing violation and therefore summary judgment was precluded. Id.

In this case, as in Waltman, appellants have offered sufficient evidence to show the existence of genuine issues of material fact as to the continuing nature of the violation, and summary judgment for Kaiser on the ground that appellants' discrimination claims were barred by the statute of limitations must therefore be reversed.

B

The district court also dismissed appellants' discrimination claim because appellants failed to comply with Local Rule 13.³  We review the district court's dismissal for abuse of discretion. Thompson v. Housing Auth., 782 F.2d 829, 832 (9th Cir. 1986).

"Dismissal ... is a harsh remedy and should only be imposed in extreme circumstances." Hamilton Copper & Steel Corp. v. Primary Steel, Inc., No. 88-5834, slip op. 3017, 3020 (9th Cir. March 23, 1990) (quotation omitted). The district court is required to weigh several factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Thompson, 782 F.2d at 831. The district court must give counsel notice the court is considering this drastic sanction. Hamilton Copper, slip op. at 3025.

Although the district court clearly considered the need to manage its docket, it is not clear whether it considered the other Thompson factors, especially the availability of less drastic sanctions. Appellants were not warned failure to follow Local Rule 13 would result in dismissal. There is no indication appellants had previously violated other local rules or court orders. Appellants did, in fact, file a Local Rule 13 statement, although apparently not when the rule required. While we sympathize with the court's need to manage its docket, we believe it exceeded its discretion in dismissing appellants' claim in these circumstances.

We reverse summary judgment for Kaiser and remand for further proceedings.

III

Appellants filed a motion to amend three weeks before discovery was to end and less than two months before trial. They sought (1) to add the local and international unions as defendants and (2) to add new allegations of wrongdoing based on additional affidavits from appellants and a new witness. The district court denied the motion as untimely and because granting the motion would have prejudiced Kaiser and the unions.

The purpose of Federal Rule of Civil Procedure 15 is to facilitate a decision on the merits, and the "policy of favoring amendments to pleadings should be applied with 'extreme liberality.' " United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981); Fed. R. Civ. P. 15.

Leave to amend may be properly denied for reasons such as: "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." In the absence of such a reason, denial of leave to amend is an abuse of discretion and reversible.

Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Bad faith and prejudice are the most crucial of these factors. Webb, 655 F.2d at 980.

Although appellants' affidavits demonstrate they were well aware of the conduct of the unions, appellants waited until the eve of trial to attempt to add the unions as defendants. Clearly the unions would have been severely prejudiced by lack of time to prepare for trial had they been joined at that late date. The district court did not abuse its discretion in denying appellants leave to add them as parties.

Appellants' request for leave to add new claims against Kaiser, alleging discrimination and harassment occurring after the suit was filed, stands on different footing. Federal Rule of Civil Procedure 15(d) permits a party to "serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Kaiser was aware appellants intended to rely on ongoing discriminatory acts because appellants had previously submitted affidavits relating to such conduct. Kaiser could not have been unduly surprised by the proposed amendments, and prejudice from permitting them would have been minor. Denial of leave to supplement the complaint in this respect must be reversed.

IV

The district court granted summary judgment for Kaiser on appellants' claims they were fired and not recalled because of their sex, in violation of Wash.Rev.Code Sec. 49.60. The court held (1) the claims were preempted by section 301, and, alternatively, (2) appellants failed to establish a prima facie case of discrimination.

State law claims are preempted by section 301 only if resolution of the claims requires interpretation of the collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). State law claims are not preempted simply because their resolution involves an analysis of the same facts as does resolution of claims arising from a collective bargaining agreement. Id. at 408-10 & n. 10. Because appellants' state law claims for discriminatory layoff and failure to recall rest entirely upon Kaiser's reason for laying off and failing to recall appellants and do not require interpretation of the collective bargaining agreement, they are not preempted by section 301. See id. at 411-12.

Although appellants' claims of sexually discriminatory layoff and failure to recall are not preempted, we affirm summary judgment for Kaiser on these claims because appellants failed to establish a prima facie case.

Washington courts allocate the burden of proof in sex discrimination cases under Wash.Rev.Code Sec. 49.60 in the same manner as the Supreme Court allocates the burden of proof under Title VII. Compare Curtis v. Clark, 632 P.2d 58, 59-60 (Wash.App.1981); Ellingson v. Spokane Mortgage Co., 573 P.2d 389, 392-93 (Wash.App.1978) with Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Plaintiffs first must establish a prima facie case, showing they were laid off or not recalled when men of lesser seniority, with the same or greater physical restrictions, and in the same or substantially similar positions, were not laid off or were recalled. Once the prima facie case is made, the employer must demonstrate plaintiffs were laid off or not recalled due to legitimate, nondiscriminatory reasons. The burden then returns to plaintiffs to demonstrate the employer's reasons were pretextual.

Appellants alleged men with lesser seniority were not laid off or were recalled before they were, but offered only conclusory allegations regarding the relative physical restrictions of appellants' and the men allegedly preferred,⁴  and offered no evidence as to the requirements of the particular jobs in dispute. Absent such proof, appellants failed to make a prima facie showing of discrimination in layoffs or recalls.

Appellants' contention that Kaiser created an issue of material fact by failing to rebut appellants' allegations of discrimination is without merit. Kaiser was not required to present evidence of legitimate, nondiscriminatory reasons for layoffs or failures to recall unless and until appellants made out a prima facie case of discrimination. Even if appellants had presented a prima facie case, Kaiser offered uncontroverted evidence that appellants were laid off because of an economic recession and were not recalled because no jobs were available commensurate with their seniority and physical limitations. This showing shifted the burden to appellants to show Kaiser's nondiscriminatory reasons were pretextual. Appellants did not discharge that burden.

Summary judgment for Kaiser is affirmed.

V

Kaiser seeks reversal of interlocutory orders denying summary judgment as to certain issues. The district court attempted to certify these orders for appeal pursuant to Federal Rule of Civil Procedure 54(b). But an order denying summary judgment is not a final order and cannot be certified for appeal pursuant to that rule. See Suydam v. Reed Stenhouse of Wash., Inc., 820 F.2d 1506, 1511 (9th Cir. 1987).

Such an order may be subject to appeal pursuant to 28 U.S.C. § 1292(b), but the orders were not certified for appeal under that section. We note that had the proper procedure been followed, it is likely we would have exercised our discretion to deny the appeals since the issues present primarily questions of fact and not "controlling question [s] of law." See Sec. 1292(b); In re Cement Antitrust Litigation, 673 F.2d 1020, 1026-27 (9th Cir. 1982).

AFFIRMED IN PART, REVERSED IN PART and REMANDED.⁵