(PS) Oghogho v. Operating Engineers Local Union No. 3, et al., No. 2:2007cv01570 - Document 72 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 1/28/2009 recommending that 54 MOTION for SUMMARY JUDGMENT be granted in full; and this action be dismissed. Objections to F&R due w/in 20 days. (Matson, R)
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(PS) Oghogho v. Operating Engineers Local Union No. 3, et al. Doc. 72 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 IDOWU O. OGHOGHO, 11 12 13 Plaintiff, No. CIV S-07-1570 LKK DAD PS v. OPERATING ENGINEERS LOCAL 3 DISTRICT 80, FINDINGS AND RECOMMENDATIONS 14 Defendant. 15 16 / This matter came before the court on September 19, 2008, for hearing on 17 defendant’s motion for summary judgment or, in the alternative, summary adjudication. Plaintiff 18 Idowu O. Oghogho, proceeding pro se, appeared on his own behalf. Kenneth C. Absalom, Esq. 19 appeared on behalf of defendant. 20 After hearing argument on defendant’s motion, the court granted plaintiff leave to 21 supplement his untimely opposition with a written response to defendant’s statement of 22 undisputed facts. See Local Rule 56-260(b). The court also granted defendant an opportunity to 23 file a reply to plaintiff’s untimely opposition. 24 Upon consideration of all written materials filed by the parties in connection with 25 defendant’s motion, the parties’ arguments in open court, and the entire file, the undersigned 26 recommends that defendant’s motion be granted and this case be closed. 1 Dockets.Justia.com 1 BACKGROUND 2 Plaintiff commenced this action in the Sacramento County Superior Court on June 3 27, 2007, and filed an amended complaint on July 5, 2007. Defendant Operating Engineers 4 Local Union No. 3, sued as Operating Engineers Local 3, District 80, was served with the initial 5 complaint and summons on July 3, 2007, and was subsequently served with the amended 6 complaint. 7 On August 1, 2007, defendant filed an answer to plaintiff’s pleadings and 8 removed the case to federal court pursuant to 28 U.S.C. §§ 1331 and 1441 on the grounds that 9 plaintiff has alleged violations of federal statutes (42 U.S.C. § 1983 and Title VII of the Civil 10 Rights Act) and has asserted state law claims that are preempted by the Labor Management 11 Relations Act, 29 U.S.C. § 185(a), because the claims require interpretation of a collective 12 bargaining agreement.1 13 A Status (Pretrial Scheduling) Conference was held on February 8, 2008, and a 14 scheduling order was filed on February 21, 2008. Defendant’s June 5, 2008 motion for extension 15 of discovery deadlines was denied by the assigned district judge on June 12, 2008, and 16 defendant’s July 30, 2008 discovery motion was denied by the undersigned as untimely on 17 August 6, 2008. Discovery closed on August 1, 2008.2 18 STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT 19 Summary judgment is appropriate when it is demonstrated that there exists no 20 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 21 ///// 22 23 24 25 26 1 Plaintiff has alleged state law claims for breach of contract, wrongful termination, violations of the California Labor Code, and discrimination in violation of the California Fair Employment and Housing Act. 2 Due to the late filing of plaintiff’s opposition to defendant’s motion and the further briefing permitted by the court, the dates set for Final Pretrial Conference and Jury Trial have been vacated, to be rescheduled if necessary following disposition of defendant’s motion. 2 1 of law. Fed. R. Civ. P. 56(c). See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); 2 Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992). 3 4 5 A party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 6 7 8 9 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 10 ‘pleadings, depositions, answers to interrogatories, and admissions on file.’” Celotex Corp., 477 11 U.S. at 323. Indeed, summary judgment should be entered, after adequate time for discovery and 12 upon motion, against a party who fails to make a showing sufficient to establish the existence of 13 an element essential to that party’s case, and on which that party will bear the burden of proof at 14 trial. See id. at 322. “[A] complete failure of proof concerning an essential element of the 15 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 16 circumstance, summary judgment should be granted, “so long as whatever is before the district 17 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 18 satisfied.” Id. at 323. 19 If the moving party meets its initial responsibility, the burden then shifts to the 20 opposing party to establish that a genuine issue as to any material fact actually does exist. 21 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat’l Bank of 22 Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 23 F.2d 1276, 1280 (9th Cir. 1979). The opposing party must demonstrate that a fact in contention 24 is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that 25 the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for 26 the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. 3 1 Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Thus, the 2 “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see 3 whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 4 56(e) advisory committee’s note on 1963 amendments). 5 6 ANALYSIS I. Plaintiff’s Claims 7 Plaintiff alleges as follows. He is a member of Operating Engineers Local Union 8 No. 3 and began working for Teichert construction company in June 2006 pursuant to an 9 apprentice agreement. The apprenticeship was limited to one classification although plaintiff 10 wanted to train in several new classifications. Plaintiff did not get to work the number of hours 11 he believed he was entitled to work. Plaintiff complained about lack of hours and hostile work 12 environment, but union officials did not assist him or protect him and even threatened him with 13 disciplinary action. In August 2006 plaintiff was laid off by Teichert based on lack of work and 14 reduction in force. Plaintiff’s understanding was that he was eligible for rehire. Later that same 15 month, plaintiff’s employment was terminated on the basis of reduction in force, without 16 eligibility for rehire. Union officials failed to act on plaintiff’s behalf and retaliated against him 17 because he is black and from Africa. Plaintiff pursued administrative remedies through the 18 Department of Fair Employment and Housing and the Equal Employment Opportunity 19 Commission. 20 Plaintiff asserts that his termination was without just cause, breached several state 21 laws, violated provisions of the Operating Engineers Northern California Master Agreement, and 22 constituted disparate treatment in violation of § 1983 and Title VII of the Civil Rights Act of 23 1964. The causes of action identified in his amended complaint are for breach of contract, 24 emotional and mental distress, financial hardship, unlawful termination, professional negligence, 25 discrimination based on race and national origin, and retaliation. Plaintiff seeks damages in the 26 amount of $50,000,000.00, interest, and attorney’s fees. 4 1 2 II. Discussion of Defendant’s Arguments and Evidence Defendant seeks summary judgment on the grounds that (1) Local 3 is not the 3 proper defendant, (2) plaintiff’s claims for breach of the duty of fair representation and breach of 4 contract are barred, and (3) plaintiff cannot prove his claims for discrimination based on race and 5 national origin because his termination was supported by legitimate, nondiscriminatory reasons. 6 As required by the standards applicable to motions for summary judgment, and as set forth more 7 fully infra, defendant has identified portions of the pleadings, materials obtained through 8 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact as to 9 each of plaintiff’s stated grounds for relief. 10 With respect to the argument that Local 3 is not the proper defendant, defendant’s 11 evidence establishes the following facts regarding Local 3 and apprenticeship programs available 12 to its members. Local 3 is a labor organization that exists for the principal purpose of 13 representing its members in collective bargaining with their employers. Local 3 is a signatory to 14 the Master Agreement for Northern California, which covers union members working for various 15 private contractors doing business in Northern California. Under the Master Agreement, 16 signatory employers contribute to a trust fund known as the Operating Engineers and 17 Participating Employers, Apprentice and Journeyman Affirmative Action Training Fund. The 18 Master Agreement establishes a Joint Apprenticeship Committee (JAC), which is a joint labor- 19 management committee. Signatories to the Master Agreement delegate the administration of all 20 apprenticeship training programs to the JAC, which has full responsibility for educating, training, 21 and disciplining apprentices under standards adopted by the JAC. The JAC consists of fourteen 22 trustees, of which seven are appointed by Local 3 and seven are appointed by the employer 23 signatories. The JAC was established in accordance with the provisions of the California Labor 24 Code governing apprenticeship programs. The JAC is an entity separate from Local 3 and the 25 employer signatories. The trustees establish an annual budget for the JAC, which must operate 26 its training functions within the parameters of its budget. The trustees monitor JAC training 5 1 operations. The JAC sets performance standards for apprentices and adopts rules and regulations 2 governing their conduct. Local 3 has no control over training standards, performance 3 requirements, or the selection and discipline of apprentices, as all of those matters are within the 4 exclusive authority of the JAC. Apprentices are subject to the rules, regulations, and procedures 5 established by the JAC and to the apprenticeship standards established by the JAC and approved 6 by the California Department of Industrial Relations. See Burns Decl.3 ¶¶ 2-7 & Ex. A; Castillo 7 Decl.4 ¶¶ 2-4 & Ex. A; Paterson Decl.5 ¶¶ 2-3 & Ex. A. 8 Defendant’s evidence reflects that plaintiff applied for apprentice training in 2006 9 pursuant to the Master Agreement for Northern California and, as required by the JAC, entered 10 into apprentice agreements with Teichert as his sponsoring employer and with the JAC. Burns 11 Decl. ¶¶ 3 & 6; Paterson Decl. ¶¶ 1 & 3; Exs. B & C. Local 3 is not a party to its members’ 12 apprentice agreements and therefore was not a party to plaintiff’s apprenticeship agreement. 13 Burns Decl. ¶ 6; Paterson Decl. ¶ 3 & Ex. C. The apprenticeship application form includes an 14 agreement by the applicant to abide by all rules and regulations applicable to registered 15 16 17 18 19 3 Declarant Russ Burns is the Business Manager of Operating Engineers Local Union No. 3 and in that capacity serves as chief executive officer of Local 3. He has held that position since September 2006 and previously served in other elected and appointed positions in Local 3. He is familiar with Local 3’s collective bargaining agreements and apprenticeship training programs. He serves as co-chairman of the Operating Engineers and Participating Employers, Apprentice and Journeymen Affirmative Action Training Fund and the JAC. Burns Decl. ¶ 1. 4 20 21 22 Declarant Tammy Castillo is employed as Director of Apprenticeship for the Joint Apprenticeship Committee for Northern California. She has overall responsibility for the supervision and administration of the day-to-day operations of the JAC and is familiar with the rules and regulations governing the operations of the JAC. Castillo Decl. ¶ 1. Attached to her declaration is a copy of the Apprenticeship Standards of the JAC. Castillo Decl. Ex. A. 5 23 24 25 26 Declarant Clara C. Paterson is employed as an Apprentice Coordinator for the Joint Apprenticeship Committee for Northern California. She has been employed in that capacity since December 17, 2001. Her principal assignment is to oversee apprentices whose last names begin with the letters K through Z. She monitors the assignments and performance of those apprentices to make sure they attend the required classes and meetings, and she interacts with individual employers concerning issues that may affect the apprentices working for them. Paterson Decl. ¶ 1. The attachments to her declaration include a copy of the JAC’s Rules, Regulations and Procedures. Castillo Decl., Ex. A. 6 1 apprentices. Paterson Decl. Ex. B. The applicable rules provide for hearing procedures and 2 unions, including Local 3, have no role in and no right to participate in the JAC’s hearing 3 proceedings. Burns Decl. ¶ 6. Local 3 has no authority over the selection of apprentices, cannot 4 recommend that an apprenticeship agreement be cancelled, and cannot intervene in the JAC’s 5 determination as to whether an apprenticeship agreement should be terminated. Id. ¶ 7. 6 Pursuant to the apprentice agreement between plaintiff’s sponsoring employer and 7 the JAC in 2006, the employer was required to provide the apprentice with one thousand hours of 8 work over a period of time, not necessarily on consecutive days and only when there was work 9 available for assignment to apprentices. Paterson Decl. ¶ 3. On July 25, 2006, Clara Paterson, 10 the JAC apprentice coordinator, visited the job site where plaintiff was performing his 11 apprenticeship. The foreperson at the job site advised Paterson that she had informed plaintiff 12 that he needed to improve his attitude and performance and that he seemed to become angry too 13 quickly. Plaintiff approached Paterson while she was at the job site and complained to her that 14 the journeyman overseeing his work was giving him low grades. Plaintiff stated that he would 15 not sign his time cards if he received low grades. Paterson cautioned plaintiff that he needed to 16 maintain a good attitude and that he was required to sign his time cards. Later that same day, 17 Paterson received a call from Jeff Dusenberry, Teichert’s superintendent. Dusenberry told 18 Paterson that he intended to advise plaintiff that he would be terminated if he did not make 19 changes in his performance and attitude within a week. Paterson prepared an apprentice 20 evaluation report noting the information provided at the job site and by telephone. Her report 21 indicates that in July plaintiff was graded at the average level in two performance categories and 22 below average in five categories. In the previous month, he was graded average or below 23 average in all categories. Paterson sent plaintiff a notice to appear on August 16, 2006 before the 24 JAC subcommittee for violation of Rule 7 of the JAC rules and regulations. Rule 7, found in the 25 Rules and Regulations and Procedures of the JAC in Section 4.02, requires apprentices to 26 complete the required on-the-job training with a passing grade of not less than “C” in each 7 1 graded category. An apprentice who receives grades of less than “C” may be required to appear 2 before the appropriate JAC subcommittee. Paterson Decl. ¶¶ 4-6 & Exs. A, D, E, G & H. 3 On August 3, 2006, Paterson received a call from plaintiff, who complained that 4 he had been told that he would not be provided with work on Friday, which plaintiff believed 5 was contrary to the employer’s agreement to provide him with 1,000 hours of work. Plaintiff 6 also complained that the employer seemed angry when plaintiff left work to attend court hearings 7 concerning his son. Paterson explained to plaintiff that the employer was not required to provide 8 him with 1,000 consecutive hours of work and was only required to provide work when work 9 was available for apprentices. Under the bargaining agreement, the employer is expected to have 10 one apprentice employed for every nine journeymen operating engineers, and journeymen always 11 have priority for work assignments, subject only to the nine-to-one ratio. At the time of 12 Paterson’s visit to plaintiff’s job site, there was a downturn in the construction industry private 13 sector generally, and Paterson observed a reduction in the amount of work that Teichert had 14 going on at that particular job site. Paterson Decl. ¶¶ 3 & 6-7, Ex. I. 15 A few days after her August 3, 2006 conversation with plaintiff, Paterson was 16 notified by Teichert that effective August 3, 2006, plaintiff was laid off because of a reduction in 17 work and because of failure to complete his training with passing grades of not less than a “C” in 18 each category. Paterson was told that plaintiff would not be eligible for rehire. Paterson 19 prepared a Termination Notice and a Request for Apprentice Appearance before the JAC on 20 September 20, 2006. Paterson Decl. ¶ 8 & Ex. J. 21 On August 14, 2006, plaintiff appeared at the offices of Local 3 and complained 22 to John Bonilla, Jr., business agent for Local 3, that Teichert was not giving him enough work. 23 Paterson Decl. ¶ 9. In a handwritten complaint dated August 14, 2006, plaintiff stated that he 24 had worked only one forty-hour week since he had been sent to the Teichert construction site in 25 Woodland and that, except for that one week, he had worked from one to four days per week. 26 ///// 8 1 Absalom Decl.6 Ex. D. Plaintiff stated further that he was not working allegedly due to a “lack of 2 work” although everybody had been working on the last day he worked and when he returned to 3 get his time card on a subsequent day, he saw everybody working and new workers on the crew. 4 Plaintiff’s written complaint concluded with his belief that he was sent home for no just cause. 5 Id. However, the document did not indicate that plaintiff believed he was the subject of 6 discrimination based on race or national origin or that he believed he was the victim of 7 retaliation. Id. 8 On August 16, 2006, plaintiff appeared before the JAC subcommittee which 9 decided to hold the matter in abeyance pending review of payroll records. Paterson Decl. ¶ 5. 10 Plaintiff did not appear before the subcommittee on September 20, 2006. The subcommittee 11 ruled that plaintiff’s violations of Rules 7 and 11 would result in termination and recommended 12 that the JAC remove him from the apprenticeship program. Plaintiff did not request 13 reconsideration, nor did he appeal even though the JAC provides for such procedures. Paterson 14 Decl. ¶ 9 & Ex. K. 15 Based on this evidence, defendant argues that plaintiff cannot establish that 16 defendant owed plaintiff a legal duty with regard to his apprenticeship, breached the duty, and 17 thereby caused him harm. Defendant contends that its only connection to the circumstances that 18 gave rise to plaintiff’s claims is that it is a signatory to an agreement with Northern California 19 employers engaged in the private construction industry and it contributes to a trust fund that 20 finances an organization to provide training to apprentices who are members of the union. 21 Defendant emphasizes that the JAC operates the apprenticeship program at issue and has 22 exclusive authority over all aspects of the program. Defendant asserts that the separate legal 23 6 24 25 26 Kenneth C. Absalom is defendant’s counsel. His declaration dated August 17, 2008, indicates that Exhibit E is a copy of a handwritten document dated August 14, 2006, produced by plaintiff in response to defendant’s request for production and marked by plaintiff as Exhibit 15. Counsel’s Exhibit D is a copy of plaintiff’s response to defendant’s request for production, in which plaintiff describes his Exhibit 15 as “The Complaint I made at the Union hall with the business representative/agent Mr. John Bonilla jr.” 9 1 structure of the JAC is not uncommon, conforms with the California Labor Code, and has been 2 recognized as a separate entity by the courts. In the absence of defendant exercising any control 3 over an apprenticeship program that is a separate entity, defendant urges the court to enter 4 judgment in its favor. 5 The court finds that defendant’s evidence in support of its first argument in favor 6 of summary judgment is persuasive. California Labor Code § 3075 provides that an 7 apprenticeship program may be administered by a joint apprenticeship committee composed of 8 an equal number of employer and employee representatives, and § 3076 provides that the 9 participating organizations may delegate to the committee full authority to establish work 10 processes, wage rates, and working conditions for apprentices and to resolve apprenticeship 11 disputes. The Ninth Circuit has held that joint apprenticeship and training committees “are 12 entities legally separate and distinct from the specific unions with which they are associated.” 13 United States v. Ironworkers Local 86, 443 F.2d 544, 547 (9th Cir. 1971). Thus, in a Title VII 14 action alleging sex discrimination in the carpentry apprenticeship program in Northern 15 California, the Ninth Circuit ruled that the union locals and employers were not necessary parties 16 to the suit because relief on the plaintiffs’ claims could be afforded by injunction against the joint 17 apprenticeship and training committee as an entity, given the committee’s power to structure the 18 apprenticeship program in any way it saw fit. Eldredge v. Carpenters 46 N. Cal. Counties Joint 19 Apprenticeship & Training Comm., 662 F.2d 534, 536-38 (9th Cir. 1981) (Eldredge II); see also 20 Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship & Training Comm., 833 F.2d 21 1334, 1337 (9th Cir. 1987) (Eldredge IV) (holding that the joint apprenticeship and training 22 committee is responsible for decisions it delegates to the employers). Cf. Berger v. Iron Workers 23 Reinforced Rodmen Local 201, 852 F.2d 619, 620-21 (D.C. Cir. 1988) (holding that the union 24 local, the training program, and the apprenticeship committee were three separate legal entities 25 and the latter two were not jointly liable with Local 201 for its unilateral acts). 26 ///// 10 1 Defendant argues further that if plaintiff’s pro se complaint is liberally construed 2 as alleging a cognizable claim for breach of the duty of fair representation, that claim is barred by 3 the statute of limitations. In support of this argument, defendant cites plaintiff’s allegations that 4 defendant refused to bargain collectively and that defendant’s agent John Bonilla, Jr. 5 misrepresented facts, refused to let plaintiff file a grievance, and refused to represent plaintiff. 6 Defendant acknowledges that unions have a duty to represent all employees in the bargaining 7 unit fairly, with honesty and in a nondiscriminatory manner, but argues that if there had been a 8 legal duty to represent plaintiff in connection with his training or employment as an apprentice, 9 unions have broad discretion in deciding whether to file a grievance or not and a breach of the 10 duty of fair representation occurs only if the refusal to file a grievance is motivated by bad faith 11 or discriminatory reasons, or the decision is arbitrary. Defendant asserts that the statute of 12 limitations applicable to claims based on the duty of fair representation is six months, and 13 plaintiff did not file his original complaint in state court until June 27, 2007, more than ten 14 months after the August 14, 2006 date on which plaintiff claims that John Bonilla, Jr. refused to 15 let plaintiff file a grievance and refused to represent plaintiff in connection therewith. 16 Similarly, with respect to plaintiff’s allegation that his employer and the 17 apprenticeship committee breached the apprenticeship agreement, defendant argues that even if 18 the proper defendant were before the court, this breach of contract claim would be barred because 19 plaintiff did not exhaust the administrative remedy applicable to the apprenticeship agreement. 20 In this vein. defendant cites California Labor Code §§ 3085 and 3081 which plaintiff himself 21 identifies as providing the statutory basis for his breach of contract claim. Section 3085 provides 22 that no person shall institute any action for enforcement of any apprentice agreement or any 23 action for damages for the breach of any apprentice agreement unless the person has exhausted 24 all administrative remedies provided by the statutory scheme. Section 3081 requires that the 25 apprentice agreement provide a hearing procedure to resolve disputes, and the JAC has adopted 26 rules and regulations that accord with the requirement. Burns Decl. ¶ 6. Plaintiff was sent a 11 1 Notice to Appear before the JAC subcommittee on September 20, 2006 but did not appear, and 2 the subcommittee ruled that his termination should stand. Paterson Decl. ¶¶ 8 & 9, Exs. J & K. 3 Defendant argues that there is no evidence that plaintiff sought review of that decision through 4 the appeal and reconsideration procedures established by the JAC’s rules and regulations or that 5 plaintiff appealed to the California Administrator of Apprentices pursuant to § 3085. Paterson 6 Decl. ¶ 9. 7 Finally, defendant contends that, even if the proper defendant were before the 8 court, plaintiff could not prevail on the merits of his federal claims. Defendant argues that 9 plaintiff cannot establish a prima facie case under Title VII by producing evidence sufficient to 10 raise an inference of intentional discrimination. Even if plaintiff were able to do so, the 11 defendant argues it would be able to rebut the inference with evidence of legitimate, 12 nondiscriminatory reasons for plaintiff’s termination from the apprenticeship program including: 13 his poor attitude, his failure to perform at a level of “C” or higher in each category in which he 14 was evaluated, and the lack of work. See Paterson Decl. ¶¶ 3-6, Exs. C, D, E, G & H; Burns 15 Decl. Ex. A. Defendant asserts that plaintiff cannot show that these nondiscriminatory reasons 16 for the employer’s action were a mere pretext for discrimination and there is no evidence of 17 intentional discrimination sufficient to defeat summary judgment even if the proper defendant 18 were before the court. With respect to plaintiff’s § 1983 claims, defendant argues that a 19 cognizable claim under Title VII precludes a § 1983 claim based on the same facts. Furthermore, 20 defendant asserts that a plaintiff who fails to establish intentional discrimination for purposes of 21 Title VII also fails to establish intentional discrimination for purposes of § 1983. 22 Having considered all of defendant’s evidence and arguments, the undersigned 23 finds that defendant has met its initial responsibility in seeking summary judgment and plaintiff 24 has the burden of establishing that a genuine issue as to any material fact actually does exist. 25 ///// 26 ///// 12 1 III. Discussion of Plaintiff’s Arguments and Evidence 2 Plaintiff was required to file opposition or a statement of non-opposition to 3 defendant’s motion on or before September 5, 2008. See Local Rule 78-230(b); Status (Pretrial 4 Scheduling) Order filed Feb. 21, 2008, at 2-3.7 On September 12, 2008, the date on which 5 defendant’s reply would have been due if plaintiff had filed timely opposition, plaintiff filed four 6 documents: a 25-page response to defendant’s motion (Doc. No. 63), a 4-page brief asserting 7 that defendant Local 3 is the proper defendant (Doc. No. 64), a 7-page brief challenging the 8 declarations offered in support of defendant’s motion (Doc. No. 65), and a 78-page compilation 9 of exhibits (Doc. No. 62). Plaintiff’s opposition did not include any document in which plaintiff 10 admits or denies each of the facts presented in defendant’s statement of undisputed facts, as 11 required by Local Rule 56-260. 12 At the hearing of defendant’s motion on September 19, 2008, the court granted 13 plaintiff an opportunity to comply with Local Rule 56-260 by filing a written response to 14 defendant’s itemized statement of undisputed facts. In a supplemental opposition filed on 15 September 25, 2008, plaintiff offers a list of admissions and denials. (Doc. No. 69.) Although 16 plaintiff was ordered not to offer argument in lieu of or in addition to the citation of evidence 17 supporting each denial, plaintiff has included argument with many of his denials and virtually all 18 of his admissions. Moreover, the supplemental opposition includes additional exhibits that total 19 84 pages. 20 The undersigned has reviewed plaintiff’s denials and the exhibits cited in support 21 of them and finds that they fail to establish the existence of a genuine issue of material fact with 22 regard to defendant’s argument that plaintiff has sued the wrong party. For example, in his first 23 denial, plaintiff denies defendant’s Undisputed Material Fact No. 4, by which defendant asserts 24 7 25 26 The order refers the parties to Local Rule 78-230 regarding motions but states in bold print that “[o]pposition or statement of non-opposition to all motions shall be filed and served not later than 4:30 p.m. fourteen (14) days preceding the hearing date except that opposition served by mail must be served not less than seventeen (17) days preceding the hearing date.” 13 1 that “[t]he Joint Apprenticeship Committee (JAC) is a joint labor-management committee 2 established under collective bargaining agreements and in accordance with California Labor 3 Code governing apprenticeship programs.” Plaintiff denies defendant’s Undisputed Material 4 Fact No. 4 “because JAC is established within a Labor Organization as same entity which 5 automatically abide by Collective Bargaining agreements and California Labor Code governing 6 apprenticeship programs.” Pl.’s Supplemental Opp’n at 6. In support of this confusing denial, 7 plaintiff cites ten exhibits.8 The undersigned has examined the exhibits and finds that they do not 8 support plaintiff’s apparent contention that the JAC is “within” a labor organization or the “same 9 entity” as a labor organization. 10 Like plaintiff’s denial of defendant’s undisputed fact No. 4, all of plaintiff’s 11 denials regarding the nature of the JAC and its relationship to defendant Local 3 are unsupported 12 and lack merit. Many of the documents cited by plaintiff in support of his denials have no 13 apparent relevance, and others support defendant’s asserted facts, either directly or indirectly. 14 For example, plaintiff denies defendant’s Undisputed Material Fact No. 6, in which defendant 15 states that “[t]he JAC is composed of fourteen (14) members, seven (7) of whom are appointed 16 by labor and seven (7) appointed by management, who are selected from the employer 17 associations which are signatories to the Rules and Regulations and Procedures and other 18 governing documents of the JAC.” Plaintiff denies this asserted fact with a citation to his 19 Exhibits 59 and 68. Exhibit 59 describes the composition of the California Apprenticeship 20 Council, a statewide body that sets apprenticeship standards. The composition of that body is 21 irrelevant to the composition of a joint apprenticeship committee. Exhibit 68 is a nine-page 22 document with a revision date of August 1978 concerning the Department of Industrial 23 Relations, Division of Apprenticeship Standards. The document indicates that apprenticeship 24 committees may be joint or unilateral and that joint committees have equal representation from 25 8 26 Although many of plaintiff’s exhibits consist of multiple pages, plaintiff fails to specify pages and line numbers when citing those exhibits. 14 1 labor and from management. Pl.’s Supplemental Opp’n, Ex. 68 at 3. This portion of the 2 document plainly supports defendant’s Undisputed Material Fact No. 6, and the undersigned 3 finds nothing in plaintiff’s Exhibit 68 that establishes a genuine dispute regarding defendant’s 4 asserted fact No. 6. Plaintiff’s evidence fails to demonstrate that the JAC is a unit of Local 3 5 rather than a separate entity composed of equal numbers of union and employer representatives, 6 to which the unions and employers have delegated all authority for operating apprenticeship 7 programs that are financed by the unions and the employers. 8 9 Plaintiff has also attempted to ascribe the actions of the JAC to Local 3 by claiming that employees of the JAC are union employees. Plaintiff describes Clara Paterson as 10 an “Operating Engineers coordinator/agent” and argues that Tammy Castillo “worked for 11 Operating Engineers Local #3.” However, plaintiff’s evidence does not contradict Paterson’s 12 declaration under penalty of perjury that she is employed by the JAC as apprentice coordinator or 13 Castillo’s declaration under penalty of perjury that she is employed by the JAC as the person 14 responsible for the supervision and administration of the day-to-day operations of the JAC. As a 15 result, all of plaintiff’s arguments concerning alleged improper misconduct by Paterson and 16 Castillo are unavailing and do not defeat defendant’s argument that Local 3 is not the proper 17 defendant in this action. 18 On this record, there is not a scintilla of evidence that supports a finding that 19 defendant Local 3 is the proper defendant in this action. See Addisu v. Fred Meyer, Inc., 198 20 F.3d 1130, 1134 (9th Cir. 2000) (“A scintilla of evidence or evidence that is merely colorable or 21 not significantly probative does not present a genuine issue of material fact” precluding summary 22 judgment); see also Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). In 23 the absence of any evidence of a disputed issue of material fact regarding the nature of the JAC 24 and its authority over apprenticeship matters, the undersigned finds that defendant Local 3 is 25 entitled to summary judgment on its argument that plaintiff has named the wrong defendant. 26 ///// 15 1 In light of the conclusion reached above, the court need not consider the 2 remaining arguments advanced by defendant in support of its motion for summary judgment. 3 Nonetheless, the undersigned also finds that plaintiff has also failed to refute defendant’s 4 arguments concerning the statute of limitations bar on plaintiff’s claim of breach of the duty of 5 fair representation, the exhaustion bar on plaintiff’s breach of contract claim, the existence of 6 evidence that would rebut plaintiff’s Title VII claim of intentional discrimination, and the 7 preclusive effect of the Title VII claim with respect to any § 1983 claim. Plaintiff has not 8 produced any evidence that creates a disputed issue of material fact with respect to any of these 9 issues, and defendant is entitled to summary judgment on these grounds as well. 10 CONCLUSION 11 Summary judgment should be entered in favor of defendant on all claims because, 12 after adequate time for discovery, plaintiff has failed to make a showing sufficient to establish the 13 existence of any disputed issue of fact regarding elements essential to his claims and on which he 14 would bear the burden of proof at trial. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. Defendant’s August 18, 2008 motion for summary judgment (Doc. No. 54) be 17 granted in full; and 18 2. This action be dismissed. 19 These findings and recommendations are submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty 21 (20) days after being served with these findings and recommendations, any party may serve and 22 file written objections with the court. A document containing objections should be titled 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to objections 24 shall be served and filed within ten (10) days after service of the objections. The parties are 25 cautioned that failure to file objections within the specified time may, under certain 26 ///// 16 1 circumstances, waive the right to appeal the District Court’s order. See Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: January 28, 2009. 4 5 6 7 DAD:kw ddad1\orders.pro se\oghogho1570.msj.f&r 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17
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