Unpublished Disposition, 852 F.2d 572 (9th Cir. 1986)

MEMORANDUM^* 

Plaintiff-appellant Natalie Moore appeals the judgment of dismissal with prejudice entered in favor of defendants-appellees Los Angeles Turf Club, Inc. (Club) and the Federation of California Racing Associations, Inc. (Federation), on her complaint for wrongful discharge and breach of employment contract. Moore challenges the court's refusal to allow her to amend the complaint and its conclusion that her suit was barred by an adverse arbitration decision. We affirm.

Moore, a licensed pari-mutuel clerk and member of the Pari-Mutuel Employees Guild of California, Local 280 (Union), was employed by the Club and various other members of the Federation from 1979 until January 1985. The Union and the Federation were parties to a collective bargaining agreement (CBA) which established a grievance procedure culminating in a "final and binding" arbitration. From February 1981 to January 1985 Moore was warned or suspended more than twenty times for having cash shortages. On January 20, 1985 she was terminated by the Club following a $200 shortage. The Federation terminated her four days later. Moore immediately filed a grievance, effectively admitting carelessness but seeking reinstatement. The Union processed the grievance and agreed to represent her at an arbitration hearing. All parties agreed to waive counsel at the February 27 proceeding before Arbitrator William S. Rule. On March 7, Rule denied the grievance, finding that Moore was terminated for cause in full compliance with the CBA. Neither Moore nor the Union moved to vacate the award.

Moore filed suit in the Superior Court for the County of Los Angeles on January 17, 1986, claiming wrongful discharge and breach of the CBA because of lack of cause. She sought reinstatement, back pay and damages. Appellees removed the case to federal court under 28 U.S.C. § 1441(b) and the artful pleading doctrine. Appellees moved for summary judgment on June 2, 1986, arguing that Moore's claims were preempted by Sec. 301, precluded by the final and binding arbitration award, and barred by the six month statute of limitations. On the date of the hearing, Moore was granted a continuance to permit her to prepare an opposition and retain counsel. Her opposition, on July 3, for the first time claimed that the Union had represented her in a discriminatory and perfunctory manner in violation of its duty of fair representation. Moore neither sought leave to amend her complaint nor raised any specific allegations of racial or sexual discrimination.

At the hearing Moore was represented by counsel. The court noted that Moore had not sued the union and that the union should have been made a party. On July 31, the court entered judgment dismissing the complaint with prejudice. It also entered a Statement of Uncontroverted Facts and Conclusions of Law, holding that the action was precluded by the final and binding arbitration. Moore did not move for reconsideration; her first request for permission to amend the complaint came in her civil appeals docketing statement.

In granting summary judgment, the district court reasoned that Moore's suit was an improper attempt to relitigate the propriety of her discharge. Under United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), a district court is precluded from reviewing the merits of an arbitrator's decision where the parties have agreed that decision would be "final and binding." Id. at 599. See also Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 (1976). However, a discharged employee can escape this preclusion by demonstrating that the union breached its duty to fairly represent her in the arbitration process. Hines, 424 U.S. at 570-71; Vaca v. Sipes, 386 U.S. 171, 181-83 (1967). Moore relies on this exception.

Contrary to Moore's argument, the district court did not base its grant of summary judgment on her failure to name the Union as a party defendant. Although Judge Rea made a comment to that effect, he corrected this statement in his subsequent written conclusions of law.

Moore next argues that, in combination, her complaint and her submissions in opposition to the motion for summary judgment adequately alleged a claim for unfair representation by averring that the Union had represented her in an unfair, discriminatory, and perfunctory manner and had failed to seek the records necessary to prove her discharge was discriminatory. We have held that a union's representation must not be "arbitrary, discriminatory, or in bad faith," but that it is not required to be free of error, and that "mere negligent conduct by a union does not constitute a breach of the union's duty of fair representation." Scott v. Machinists Automotive Trades Dist. Lodge 190, 827 F.2d 589, 593 (9th Cir. 1987); see also Galindo v. Stoody Co., 793 F.2d 1502, 1513-14 (9th Cir. 1986). Moore concedes that her complaint was deficient, but argues that it is curable and she should be allowed to amend it so as to state a proper claim.

However, Moore's burden in defending against a motion for summary judgment is to present "specific facts showing that there remains a genuine factual issue for trial" as to whether the Union's representation fell below its duty of fair representation and good faith. Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir.) (emphasis omitted) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)), cert. denied, 108 S. Ct. 504 (1987). Mere allegations or conclusory assertions are insufficient.

Moore first raised the issue of unfair representation in her opposition to the motion for summary judgment, where she declared that the Union had represented her in a perfunctory and discriminatory manner, had not informed her of (1) the arbitration procedures, (2) the final and binding nature of the arbitration, (3) her right to a due process hearing prior to discharge, (4) the disadvantage of arbitrating without an attorney, and (5) her right to move to vacate the award; and that the Union had failed to obtain certain records and provide her with a full opportunity to present evidence.

We do not ordinarily consider a claim raised for the first time in an opposition to a motion for summary judgment. Stallcop, 820 F.2d at 1050 n. 5. But even if we did, we would have to conclude that her evidence fails to raise a genuine issue of material fact. Even the few specific allegations in her declaration fail to rise (or sink) to the level of bad faith or perfunctoriness necessary to demonstrate a breach of the duty of fair representation. Absent a breach, Moore's claim is precluded by the final and binding adverse arbitration award. We conclude that appellees were entitled to judgment as a matter of law.

Finally, we hold that the district court did not abuse its discretion by dismissing the complaint with prejudice. Where the complaint is dismissed on summary judgment, and no effort is made to amend prior to appeal, we will not remand with directions to permit the plaintiff to amend. See Black v. Payne, 591 F.2d 83, 88-89 (9th Cir.), cert. denied, 444 U.S. 867 (1979); Jackson v. American Bar Ass'n, 538 F.2d 829, 833 (9th Cir. 1976). Moore had ample opportunity in the district court to seek leave to amend and to adduce evidence of the Union's bad faith. Her pro se status through most of the litigation does not excuse her failure to do so. Moreover, our conclusion that summary judgment was appropriate reflects our belief that Moore cannot state a valid claim. Cf. Admiralty Fund v. Jones, 677 F.2d 1289, 1295-96 (9th Cir. 1982).

Since Moore did not and cannot state a valid claim for breach of the Union's duty of fair representation, the final and binding arbitration award in favor of appellees is just that.

AFFIRMED. Each side will bear its own counsel fees.