Unpublished Disposition, 848 F.2d 198 (9th Cir. 1988)

Plaintiff-appellant Daniel McCauslin appeals from the entry of partial summary judgment in favor of defendant-appellee FMC Corporation in his action under Section 301 of the National Labor Relations Act. 29 U.S.C. § 185. McCauslin asserts the district court erred in granting summary judgment on his claim that FMC classified him "not for rehire" because of his union activities. FMC contends this matter is not properly appealable. FMC alleges there is no final judgment because the district court's order dismissing the claims against defendant International Association of Machinists and Aerospace Workers, Local Lodge 562 (IAM) is conditional on the outcome of this appeal. We affirm.

This court reviews a district court's decision to grant a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a) (2) for an abuse of discretion. Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982).

This court reviews a district court's grant of summary judgment de novo. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288 (9th Cir. 1987). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court was correct in finding that there exists no genuine issue of material fact, thus entitling the moving party to judgment as a matter of law. International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).

FMC contends there is no final judgment because the stipulation entered into between McCauslin and IAM makes finality of the judgment conditional on the outcome of this appeal. Pursuant to Fed. R. Civ. P. 41 (a) (2), a district court may order dismissal of plaintiff's action "upon such terms and conditions as the court deems proper." For this court to reverse the district court's order, FMC must show some plain legal prejudice resulted from the order granting voluntary dismissal. Waller v. Financial Corp. of America, 828 F.2d 579, 583 (9th Cir. 1987). Plain legal prejudice does not result merely because McCauslin may later bring another suit against IAM or that McCauslin gained some tactical advantage on this appeal. Hamilton, 679 F.2d at 145. FMC has not shown that the district court failed to consider whether plain legal prejudice might result, or that the district court abused its discretion in granting the motion to dismiss.

FMC contends that the posture of this case is the same as when this court previously dismissed the appeal as being premature. FMC's contention lacks merit. In the prior appeal there was no final judgment. Now, even though claims were dismissed voluntarily without prejudice, there is a final judgment as to these claims. See City of Santa Clara, California v. Andrus, 572 F.2d 660, 665-66 (9th Cir.) (a final judgment dismissing claims without prejudice is appealable under 28 U.S.C. § 1291), cert. denied, 439 U.S. 859 (1978).

The party moving for summary judgment (FMC) has the initial burden to show the absence of any material factual issue. If that burden is met, to avoid the granting of the motion, the nonmoving party (McCauslin) must come forth with specific factual allegations revealing a genuine dispute of fact. International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

Here, the district court granted FMC's motion for summary judgment because McCauslin failed to show sufficient evidence that he had been classified "not for rehire" due to an anti-union animus on the part of FMC. FMC had previously met its burden by coming forth with sufficient evidence showing that the reason McCauslin was classified "not for rehire" was his poor attendance record and not discrimination. McCauslin had at least 30 unexcused absences during all or part of his workdays over a nine month period. Reasons he gave for failing to report included "mad at the world" and "did not feel like reporting on time." McCauslin also had 33 excused absences during this period. Six of his excused absences were for union business.

McCauslin contends that summary judgment was improper because the motive of the FMC superintendent who classified him "not for rehire", John Lay, was at issue. We are cautious in granting summary judgment where state of mind, motive or intent is in question. Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985); Hotel & Restaurant Employees and Bartenders International Union v. Rollison, 615 F.2d 788, 793 (9th Cir. 1980). Even when these issues are present, however, if all reasonable inferences drawn from the evidence defeat the nonmoving parties' claims or where the palpable facts are substantially undisputed, such issues can properly be decided by summary judgment. Braxton, 769 F.2d at 531; Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1220 (9th Cir. 1980).

Lay's motive was based on undisputed objective facts, an official report of McCauslin's every absence evidencing an atrocious attendance record. Lay also based his decision on discussions he had with two of McCauslin's immediate supervisors, Foreman Cruz and Superintendent Hawkins, who also believed, based on McCauslin's poor attendance, he should be classified "not for rehire." McCauslin has not shown facts creating a genuine issue that Lay's opinion was based on anything other than McCauslin's record of absenteeism. Furthermore, McCauslin failed to show any evidence that employees with similarly poor attendance records had been hired by FMC at other plants.

McCauslin attempts to attribute a discriminatory motive to FMC's decision to classify him "not for rehire" by alleging that he was the only employee to lose pay for his union activities. This resulted from FMC crediting McCauslin with unexcused absences for questionable union activity on six or seven occasions. However, even with these absences excused, McCauslin still had 30 unexcused absences and tardies over a nine month period. McCauslin has shown no evidence in the record that FMC has ever harbored anti-union feelings against him or any other FMC employee. What the record does show is that FMC gave McCauslin numerous opportunites to redeem himself which he failed to take advantage of by continuing to be absent on a regular basis.

McCauslin's contention that he was classified "not for rehire" due to a discriminatory motive is merely a conclusory allegation based on mere suspicion and belief. Thus, he fails to meet his burden to show a genuine issue of material fact. Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1103 (9th Cir. 1981), cert. denied, 455 U.S. 948 (1982).

We affirm the district court's order. All claims against IAM are dismissed with prejudice pursuant to the district court's order.

AFFIRMED.

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