Unpublished Disposition, 879 F.2d 865 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1987)


No. 88-15137.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 27, 1989.Decided July 12, 1989.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


Appellant L.J. Julian appeals pro se from an adverse summary judgment in his action against his union appellee American Federation of State and County Municipal Employees, District 57 (Union), for discrimination and breach of the duty of fair representation. The district court found that the undisputed facts revealed no support for either of Julian's claims. We have jurisdiction under 28 U.S.C. § 1291 (1982), and we affirm.

* Julian was an employee of San Mateo County (County) for approximately thirty years, and, at the time in issue, was a supervisory custodian at the Crystal Springs Rehabilitation Center. The collective bargaining agreement between the Union and the County permitted the County to set the work schedule for the Rehabilitation Center "with due regard for the convenience of the public and the laws of the State and County." At some point in 1983, the County decided it needed more custodial coverage on holidays, and began requiring custodians to work during holidays on a rotating basis. Julian was included in this rotation, but refused to work on holidays. On each of the several occasions when plaintiff failed to work on a holiday, the County took disciplinary measures against him.

When Julian failed to report for work on July 4, 1984, the County proposed to suspend him for two weeks. Julian contacted the Union for assistance. A representative of the Union, David Ofria, filed a grievance on Julian's behalf despite Ofria's belief that Julian had caused his own troubles and there was little the Union could do. Ofria advised Julian that he should work on assigned holidays until the matter was resolved.

Julian did not work during his next scheduled holiday, Thanksgiving of 1984. As a result, the County notified him that it was planning to terminate his employment. The Union filed a grievance on Julian's behalf over the proposed termination and the two grievances then pending were consolidated. After negotiations, Julian, the Union, and the County agreed to convert Julian's termination into a "service retirement." Julian, however, did not follow through and execute the necessary papers to become eligible for service retirement. The County contacted the Union and informed it of Julian's inaction. The Union, in turn, contacted Julian, but Julian did not respond. As a result, Julian was terminated. On February 7, 1985, the Union informed Julian that it would not carry his grievances with the County any further.

Julian filed this action on July 24, 1987, in Santa Clara County Superior Court against the Union alleging that the Union "failed to fairly represent his employment position agreement" and "violated the civil rights act of 1866." The Union removed the case to federal district court. Julian failed to respond to the Union's motion for summary judgment, and the district court granted the Union's motion.


A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We determine whether there exists any genuine issue of fact viewing the record in the light most favorable to Julian. Id. We agree with the district court that Julian has failed to point to any issues of fact warranting a trial on either claim. To establish a breach of the duty of fair representation, Julian must show that the Union's conduct was arbitrary, discriminatory, or in bad faith. See Vaca v. Sipes, 386 U.S. 171, 177 (1967). It is clear from the record that the Union provided Julian able representation, and that its conduct was not arbitrary, discriminatory, or in bad faith. In fact, it appears that just the opposite is true. Ofria, although believing that Julian's problems had been self inflicted and that there existed little reason to pursue a grievance, nevertheless filed a grievance on Julian's behalf and eventually helped negotiate a settlement with the County allowing Julian to retire rather than be terminated. Julian, however, failed to execute the proper documents, and refused to contact the Union. Because Julian has failed to designate "specific facts showing that there is a genuine issue for trial" as required under Fed. R. Civ. P. 56(e), a trial on Julian's unfair representation claim is unwarranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Richards v. Harper, 864 F.2d 85, 88 (9th Cir. 1988).

Similarly, the record is absent of any indication of discrimination sufficient to support a claim of either race or sex discrimination under 42 U.S.C. § 1981 (1982) or 29 U.S.C. § 621 (1982), and Julian has failed to carry his burden under Rule 56(e). Accordingly, we find that the district court properly granted the Union's motion for summary judgment.



The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3