stating that summary. judgment may be affirmed on grounds clearly supported in the record even if not relied upon by the district court
How later courts described this case
- stating that summary. judgment may be affirmed on grounds clearly supported in the record even if not relied upon by the district court
- “As in other cases, we ‘may affirm on any ground that finds support in the record’. Mims v. Board of Education, 523 F.2d 711, 716 n. 2 (7th Cir.1975) (in appeal from summary judgment). See, e.g., United States v. General Motors Corp., 518 F.2d 420, 440-41 (D.C.Cir.1975); 6 Moore’s, Federal Practice ¶ 56.27[1] at 56-1561 (2d ed. 1979); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2716 at 440 (1973)”
- “As in other cases, we ‘may affirm on any ground that finds support in the record,’ Mints v. Board of Education, 523 F.2d 711, 716 n.2 (7th Cir. 1975), in appeals from summary judgments.”
- interpreting an earlier version of the NMFA
Written by the judges who cited it.
The opinion
PELL, Circuit Judge,
concurring.
It appearing to me that Judge Tone’s opinion sufficiently demonstrates the inap *278 propriateness of summary judgment in this appeal, I concur in the result. Nevertheless, I do so with some uneasiness.
An important factor seems to have entered the picture: the matter of lack of a warning letter to Miller under the Union contract. In his amended complaint, Miller has only a passing reference to his having objected because Article 46 of the agreement required that he receive a written notice with an opportunity to correct the alleged improper act. The original brief filed by Miller in this court had no reference to his claim for reversal being in any way based upon noncompliance with Article 46. In the reply brief, the total reference to the warning letter was:
. being the incident of June 22, 1976 in which a “voluntary quit” manuver [sic] was used as a means to try and avoid the provision of Article 46 of the National Master Freight Agreement which forbids such actions for a first offense.
The court on its own motion during oral argument, although the matter of the warning letter had not been urged to the panel other than as noted above, did inquire about the matter of the warning letter. The colloquy that followed threw no particular light upon the merits of such a claim. Aside from any question of waiver, the courts, it seems to me, walk on shaky ground in giving decisional significance to issues the parties have neither urged nor treated.
Further, it appears to me that the employer demonstrated a clear right of discharge on the merits. Miller was hired as a driver. Nevertheless, he twice demonstrated an intransigent position about carrying out management driving assignments. The business of getting the trucks over the road should not have to tolerate such a continuing refusal to accept managerial assignments. To the extent that the union representation may appear pro forma, it may well be attributable to the lack of merit of Miller’s position.
In any event, the district court on remand will have the opportunity to develop fully the pertinent evidentiary facts.