Petition for Writ of Certiorari — Sieu Mei Tu v. Southern Pacific Transportation Co.
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92-1096 [Tre
THE SUPREME COURT OF THE UNITED STATES | ODEO BRE 9992
October Term, 1992
NO:
OFFICE OF THE CLERK
SIEU MEI TU, JOSEPH Z. TU
PLAINTIFFS, APPELLANTS,
APPLICANTS
VS.
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
me ee ee ee ee ee ee ee ee eee”
RESPONDENT
SOUTHERN PACIFIC TRANSPORTATION )
COMPANY; ATCHISON, TOPEKA, SANTA FE )
RAILROAD COMPANY; PACIFIC FRUIT )
EXPRESS COMPANY; T. ELLEN; E.E.CLARK; )
D. W. FEND; T. R. ASHTON; DOE DEFEN- _)
DANTS ONE TO TWO THOUSAND; WHITE )
COMPANY; BLACK CORPORATION; BROTHER- )
HOOD OF RAILWAY AIRLINE AND STEAMSHIP )
CLERKS; R. B. BRACKBILL;J. M. BALOVICH;)
SANTA FE SOUTHERN PACIFIC CORP )
REAL PARTIES IN INTEREST )
APPLICATION FOR WRIT OF CERTIORARI TO REVIEW
MEMORANDUM OF DECISION OF UNITED STATES COURT OF
APPEAL, NINTH CIRCUIT, FILED JUNE 1, 1992
( RULE 10 (1) (a) (c))
LEE J. KUBBY, INC.
A PROFESSIONAL CORPORATION
BOX 60485
Sunnyvale, CA 94086-0485
(415) 691-9331
Attorney for Plaintiffs
Appellants Applicants
SIEU MEI TU and JOSEPH Z. TU
.
THE SUPREME COURT OF THE UNITED STATES OF AMERICA
October Term, 1992
NO:
SIEU MEI TU, JOSEPH Z. TU
PLAINTIFFS, APPELLANTS,
APPLICANTS
vs.
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
RESPONDENT
SOUTHERN PACIFIC TRANSPORTATION )
COMPANY; ATCHISON, TOPEKA, SANTA FE )
RAILROAD COMPANY; PACIFIC FRUIT )
EXPRESS COMPANY; T. ELLEN; E.E.CLARK; )
D. W. FEND; T. R. ASHTON; DOE DEFEN- )
DANTS ONE TO TWO THOUSAND; WHITE )
COMPANY; BLACK CORPORATION; BROTHER- )
HOOD OF RAILWAY AIRLINE AND STEAMSHIP )
CLERKS; R. B. BRACKBILL;J. M. BALOVICH;)
SANTA FE SOUTHERN PACIFIC CORP )
REAL PARTIES IN INTEREST )
APPLICATION FOR WRIT OF CERTIORARI TO REVIEW
MEMORANDUM OF DECISION OF UNITED STATES COURT OF
APPEAL, NINTH CIRCUIT, FILED JUNE 1, 1992
( RULE 10 (1) (a) (c))
LEE J. KUBBY, INC.
A PROFESSIONAL CORPORATION
BOX 60485
Sunnyvale, CA 94086-0485
(415) 691-9331
Attorney for Plaintiffs
Appellants Applicants
SIEU MEI TU and JOSEPH Z. TU
TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF
THE SUPREME COURT OF THE UNITED STATES OF AMER-
ICA:
PLAINTIFFS-APPELLANTS-APPLICANTS SIEU MEI TU and
JOSEPH Z. TU HEREWITH petition pursuant to Title
28, United States Code, section 1254(1); Rule 10
(1) (a) and (c) Rules of the Supreme Court of the
United States4Hs FOR WRIT OF CERTIORARI TO REVIEW
MEMORANDUM OF DECISION OF UNITED STATES COURT OF
APPEAL, NINTH CIRCUIT, FILED JUNE 1, 1992
(a) QUESTIONS PRESENTED FOR REVIEW >
1. Does the Railway Labor Act prevent a Union
Employee of a wholly owned subsidiary of a Rail-
road, from bringing a civil action under state and
federal anti discrimination statutes for tortious ~
workplace employment discrimination by reason of
the workers origin of birth, sex, and or age.
Does enforcement of a state law claim of racial,
sexual, and or age discrimination constitute such
interference with federal policy concerning rail-
road collective bargaining agreements, so as to
prohibit a person who has been discriminated
against from seeking relief from any forum other
than RLA arbitration procedure. Is discrimination
—), Bers aD
o-
me ~
by an employer a minor dispute?
2. Has a gross miscarriage of justice occurred
here against which the Supreme Court should act?
3. When an employer refuses to arbitrate with an
individual employee concerning the employer's
breach of the collective bargaining agreement, and
the employer and the employee's labor union advise
the employee that the union is arbitrating her
grievances but the union fails to arbitrate that
employees particular grievances, can the employee
bring a civil action for the grievances under the
principles of Vaca v. Sipes, 386 U.S. 171.
(b) PARTIES TO PROCEEDING
All the parties to the proceeding are listed in
the caption of this pleading.
(c) TABLE OF CONTENTS AND TABLE OF AUTHORITIES
TABLE OF CONTENTS
Questions presented for review 2
Parties to the proceeding 3
Table of Contents 3
Table of Authorities 5
Reference to official and unofficial
reports of opinions delivered in the
case by other courts or administrative
agencies 10
-3-
Grounds on which the jurisdiction of
this court is sought to be invoked 11
Date of entry of the judgment or
or decree sought to be invoked a2.
The date of order respecting rehearing 11
The statutory provision believed to
confer on this court jurisdiction to
review the judgment or decree by writ
of certiorari 11
The constitutional provisions, treaties,
statutes, ordinances, and regulations
involved in this case 16
Statement of the case 17
Basis claimed by defendants for federal
jurisdiction to remand from California
Superior Court to United States District
Court Northern District of California 33
Argument amplifying the reasons relied
on for allowance of the writ 33
Appendix 65
TABLE OF AUTHORITIES
“CASES ALPHABETICAL
Atchison, Topeka and Santa Fe Railway
Vv , (1987) 107 Ss.
Ct. 1410, 771 F2d 1320 (CA9th opinion).
44
Bremer v. St. Louis Southwestern R. Co.
(DC Mo 1969) 310 F. Supp 1333
13
Bolker v. Commissioner of Internal Revenue,
760 F. 2d 1039, 1042 (9th Cir. 1987)
astanedo v. Dura-Vent Corp.
648 F. 2d 612 (9th Cir. 1980)
Castelli v. Douglas Aircraft Co.,
752 F. 2d 1480, 1482 (9th Cir. 1985)
Caterpillar Inc. v. Williams,
107 S.Ct. 2425 (1987)
59, 61
62, 63
Celotex Corp. v. Catrett,
106 S. Ct. 2548 (1986)
Dayton Board of Education v. Brinkman
(1977) 433 US 406.
55, 57
Del Cost o v. International
Brotherhood o eamsters
462 U.S. 151, 103 S. Ct. at 2290
Dolphin Tours v. Pacific Creative
Services, 773 F.2d 1506,
(9th Cir.1985).
Dutrisac v. Caterpillar Tractor Co.,
749 F. 2a 1270, 1274 (9th Cir. 1983)
106
-5-
Eichelberger v. NLRB. 765 F. 2d 851
(9th Cir.1985)
Eisenberg v. Insurance Co. of N. Am.
(CA 9th, 1987) 815 F2d 1285
Electronic Race Patrol, Inc.
(D.C.N.Y. 1961) 191 F. Supp. 364.
Evangelista v. Inlandboatmen's Union
of Pacific, 777 F.2d 1390
(9th Cir.1985)
Galindo v. Stoody Co.,
(CA 9th 1986) 793 F.2d 1502.
Gallon v. Levin Metals Corp.,
779 F.2d 1439, 1440 (9th Cir. 1986).
Greater Los Angeles Council on
Deafness, Inc. v. Zolin, 812 F.2D
1103 (9TH Cir. 1987)
Greagq v. Chauffeurs, Teamsters
and Helpers Union Local 150,
699 F. 2d 1015, 1016 (9th Cir 1983)
Gully v. First National Bank,
299 U.S. 109, 112-113, 57 S.Ct.
96, 97-98, 81 L.Ed. 70 (1936)
Heatherton v. Playboy. Inc.
(D.C. Cal 1973) 60 F.R.D. 372.
Javanovich v. United States,
813 F. 2d 1035, 1037 (9th Gir. 2067)
42, 53
58
48,104
34,48
60
58
Johnson v. United States Postal Service,
756 F. 2d 1461 (9th Cir 1985).
-6-
Corp, 878 F2d 1193 (9th Cir. 1989)
Vv. ernit n
Ltd. of California, (CA9th 1949)
173 F2d 559
Lew_v. Kona Hospital, (CA9th, 1985)
754 F2d 1420
cAlester v. United Airlines, Inc.
(10th Cir. 1988) 851 F.2d 1249
McLaughlin v. Liu (9th Cir 1988)
849 F.2d 1205.
Miller v. Fairchild Indus., Inc.,
797 F.2d 727 (9th Cir. 1986)
New York Dock RY-Control-Brooklyn
Eastern Dist, Fin. Dkt. 28250 at
401-403 (April 11, 1978)
Pender v. National RR Passenger Corp.
(DDC) 1985) 625 F. Supp. 252
Peterson v. Kennedy, 771 F.2d 1244,
(9thCir. 1985), cert. denied
475 U.S. 1122 (1986).
Perez v. Curcio, (CA9th 1988)
841 F.2d 255,
Railway Labor Executives Assn v. Icc
(9th Cir. 1991) 958 F2d 252
-7=-
53
53
12
37
34
13
48
35
Reimche v. First Nat. Bank of Nevada
(CA 9 1975) 512 F2d 187.
-
Rio Grande Industries , et al
--Control--SPT Co., et al,
41.C.C. 2d 834 (1988) (Rio Grande),
aff'd sub nom. Kansas City Indus., Inc.
v. United States, 902 F.2d 423
(5th Cir. 1990).
Robesky v. Qantas Empire
Airways Ltd., 573 F. 2d 1082
(9th Cir. 1978)
Rollins v. Techsouth, Inc.
(CA 11th 1987) 833 F.2d 1525 at 1528
37
Russo v. Prudential Ins. Co.,
116 FRD 10, (E.D. Pa., 1986).
Santa Fe Southern Pacific Corp. 5s
--Control--SPT Co., 2 1.%.€- <a
709 (1986) recon. den., 3 I1.2.C. 2d
926 (1987) (SFSP)
Shaw v. Metro-Goldwyn-Mayer, Inc.,
(1974) 37 CA 3D 587, 597; 113 CR 617.
51
Singelton v. Wulff,
428 U.S. 106 (1976)
Strange v. Arkansas-Oklahoma Gas Corp.
(D. C. Ark. 1981) 534 F. Supp. 138
58
Tenorio v. NLRB, 680 F.2d 598
(9th Cir. 1982)
Traylor v. Black, Sivalls & Bryson,
-8-
(CA 8th, 1951) 189 F2d 213, at 216
52
Ww Vv ific
Electric Contractors Assn.
(9th Cir. 1987) 809 F.2d 626, 630-31
38,43
801 F2d 834 (CA 6 1986).
Vaca v. Sipes 386 U.S. 171, 190,
3, 48, 50
Wise v. Southern Pacific Co. (1963)
223 CA2d 50; 35 C.R. 652,
50, 51
W ey v. Eastern Airlines, 250 F2 86
(CA Fla 1957); cert. denied
356 U.S. 931
LAWS AND STATUTES
United States Constitution
Article III Sections 1 and 2
Amendment VII
28 USC 1254 (1) as bese ave
Zz, sa, i6
28 USC 1291 16
28 USC 1445 (a) 7 16, 58
42 USC 1983 i>
45 USC 51 Ags OF
71,80
49 USC 11347 a, 2
15, 54,55
Rules of the Supreme Court of the United States
tye
Rule 10 (1) (a) and (c) 2,12,16
Federal Rules of Civil Procedure
Rule 4 (3) 10, 16
Rule 6 (b) (2) 10, 16
California Government Code 12900 et seq.
10, 17
California Public Utility Code
216 10, 17
453 a8, a?
TEXTS AND OTHER AUTHORITIES
6 Part 2 Moore's Federal Practice 56-304
(d) REFERENCE TO OFFICIAL AND UNOFFICIAL REPORTS
OF OPINIONS DELIVERED IN THE CASE BY OTHER
COURTS OR ADMINISTRATIVE AGENCIES
There have been two administrative proceedings
involving the respondents and the failed merger, —
the initial determination by the ICC is reported
in Santa Fe Southern Pacific Corp. recon den., 3
I.C.C. 2d 926 (1987) (SFSP) and Rio Grande Indus-
tries , et al--Control--SPT Co., et al, 4 I.C.C.
2d 834 (1988) (Rio Grande), aff'd sub nom. Kansas
City Indus., Inc. v. United States, 902 F2d 423
(5th Cir. 1990). See also Railway Labor Execu-
-10-
tives Assn v. ICC (9th Cir. 1991) 958 F2d 252
The second was an arbitration proceeding under the
RLA for which there is no known report, but a copy
of the decision in that matter is contained in
the Appendix hereto.
(€) GROUNDS ON WHICH THE JURISDICTION OF THIS
COURT IS SOUGHT TO BE INVOKED
(i) The date of entry of the judgment or decree
sought to be reviewed:
Ninth Circuit Court of Appeal Memorandum Deci-
sion filed June 1, 1992 re the following orders of
the United States District Court for the Northern
District of California:
Order denying motion to remand (October
13, 1987)
Order granting Defendants' motion to dis-
miss(April 8, 1988)
Order re Defendant's motions to dismiss
and for summary judgment (June 29,
1988 and June 30, 1988)
Order granting Defendants' motion for
summary judgment (Feb. 8, 1989)
Order granting defendants' motion for
summary judgment and to dismiss (August
14, 1989) |
Judgment August 21, 1989
(ii) The date of order respecting rehearing:
September 22, 1992
-ll-
(iv) The statutory provision believed to confer on .
this Court jurisdiction to review the judgment or
decree by writ of certiorari:
Jurisdiction of this court is sought to be
invoked under The United States Constitution,
Article III, Sections 1 & 2, Amendment VII,
28 U.S.C. 1254 (1), Rule 10 (1)(a) and (c), Rules
of the Supreme Court of the United States in that
there are special and important reasons therefore
including the following:
(i) The Ninth Circuit Court of Appeals in
this matter has rendered a decision in
conflict with the decision of another
United States Court of Appeal, to wit the
Tenth Circuit Court of Appeals in the
case of McAlester v. United Air Lines,
Inc. (10th Cir. 1988) 851 F2d 1249. The
conflict substantially affects a rule of
national application for which there is a
need for national uniformity. McAlester
supra, decided that the RLA does not
repeal or preempt employment discrimina-
tion claims sounding in tort based on
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——_
recognition of social right of equality
of opportunity of persons regardless of
race, while the 9th Circuit in the
instant matter, declared that the plain-
tiffs tortious termination-discrimination
claims were subject to mandatory arbitra-
tion under the RUA, (Memorandum page
22); were "minor disputes"; and plain-
tiffs exclusive remedy is under the RLA.
(Memorandum page 7). See also Pender v.
a ssenge Orp.. (DDC, 1985)
625 F. Supp. 252 and Bremer v. St. Louis
thwestern R Oo. (DC Mo 1969) 310 F.
Supp 1333.
(ii) The Ninth Circuit's memorandum of
decision has decided a federal question
in a way in conflict with deep rooted
interests of the State of California, or
sanctioned such a departure by the Dis-
trict Court of the Northern District of
California, as to call for an exercise of
this court's power of supervision.
California has a deep rooted interest in
-13-
having all its citizens free from discri-
mination because of their race, age, and
or sex. In this case, all three preju-
Gices manifested themselves, and these
interests of the State to have the work
place free of discrimination, were
ignored by the Ninth Circuit.
(iii) A gross miscarriage of justice has
occurred in this matter, in that the
employer's attorneys in the civil action
petitioned for remand to the federal
court from the state court on the basis
that Sieu Mei Tu's employer was a "carr-
ier" with exclusive jurisdiction in the
federal courts and argued successfully
that Plaintiff's claim of conspiracy to
subvert her civil rights to be free of
discrimination by reason of sex, age, and
or national origin and to deny her, her
common law contract rights could only be
enforced before the Interstate Commerce
Commission, and then argue before the
Interstate Commerce Commission that the
-14=<
Icc has no jurisdiction over her claims,
because Sieu Mei's employer is not a car-
rier, thus denying a female person who
came to this country, became a citizen,
and worked for the same employer over
twenty two years, being told she would
always have a job until she retired, and
if no work was available to her, she
would receive her salary to full retire-
ment; paying her union dues and believing
that the union would protect her full
rights; less than three years before
becoming eligible for full retirement
benefits, being terminated by her
employer without any termination benefits
and her union failing to enforce her
rights; and being denied a forum in which
to enforce her rights on her own. Further
the court of Appeal in a miscarriage of
justice which attacks the integrity of
the judicial process, refused to consider
all of the arguments applicable to peti-
tioners' appeal. (Memorandum, page 11)
-15-
Petitioner was unconstitutionally denied
her right to trial by jury and discovery.
The full power of giant's of industry,
the railroads and the railroad union have
joined here to attempt to deny a single
individual of the fruits of the American
dream.
(F) THE CONSTITUTIONAL PROVISIONS, TREA-
TIES, STATUTES, RULES, ORDINANCES, AND REGULA-
TIONS INVOLVED IN THIS CASE
The constitutional provisions, treaties, sta-
tutes, ordinances and regulations involved in this
case are:
United States Constitution
Article III Sections 1 and 2
Amendment VII
28 USC 1254 (1)
28 USC 1291
28 USC» 1445 (a)
42 USC 1983
45 usc 51
49 USC 11347
Rules of the Supreme Court of the United States
Rule 10 (1) (a) and (c)
Federal Rules of Civil Procedure
Rule 4 (3)
-16-
Rule 6 (b) (2)
California Government Code 12900 et seq.
California Public Utility Code
216
453
(g) STATEMENT OF THE CASE
(A) NATURE OF CASE
Plaintiffs filed an action in The Superior
Court of the City and County of San Francisco (DEN
1, EX 5) on causes of action for tortious wrongful
termination of employment, breach of private (non
collective bargaining agreement) contract of
employment, breach of covenant of good faith and
fair dealing, intentional and negligent infliction
of emotional distress, employment discrimination
under California State Statutes (California Gov-
ernment Code 12900 et seq. and California Public
Utilities Code 453 (a)) , Conspiracy, and Loss of
Consortium.
Defendant PFE appeared by Acknowledgment of
Receipt of Summons (EX 17) and by answer (DEN 3 ).
Defendant Southern Pacific Transportation appeared
-17<
by answer on March 23, 1987 (DEN 8 Ex 18), Defen-
dants Atchison, Topeka and Santa Fe and Santa Fe
Southern Pacific Corporation appeared by answer on
December 24, 1987 (DEN 25 EX 260).
Defendants filed a Petition For Removal to The
United States District Court for the Northern Dis-
trict of California (DEN 1), Plaintiffs objected
to the jurisdiction of the Federal Court (DEN 9,
EX 24), and moved to remand to the state court
(DEN 16. Ex 26). Defendants admitted in their
Memorandum in Opposition (DEN 17 page 3, lines 21
& 22) that "All causes of action are pled under
state law." By order filed October 9, 1987 DEN
24, Ex 253) the plaintiffs' motion was denied. On
February 29, Defendants moved to dismiss and for
summary judgment (DEN 28). By order filed April
6, 1988, (DEN 36 EX 284) the court dismissed
Plaintiffs first and second causes of action,
(wrongful termination of employment, breach of
agreement of employment); did not rule on Plain-
tiffs third cause of action for intentional and
negligent infliction of emotional distress, breach
of covenant of good faith and fair dealing;
-18-
refused to exercise pendent jurisdiction over
Plaintiffs fourth and fifth causes of action (dis-
crimination, conspiracy). On April 29, 1988,
Plaintiffs filed their First Amended Complaint
(DEN 38). Defendants moved to dismiss and for sun-
mary judgment (DEN 39 & 42). By order dated June
30, 1988 (DEN 51, EX 304), the court vacated its
April 6, 1988 order as to pendant jurisdiction,
determined to exercise its pendant jurisdiction
over the fourth and sixth causes of action, dis-
missed with prejudice the second (breach of cove-
nant of good faith and fair dealing); third
(intentional infliction of emotional distress) ;
fifth (conspiracy); and seventh (negligent inflic-
tion of emotional distress) causes of action, dis-
missed the railroads from the eighth cause of
action (breach of collective bargaining agreement
and breach of duty of fair representation); and
Sienkenen defendants Santa Fe and Railway from all
causes of action. By order filed February 6, 1989
(DEN 98 EX 890) the trial court granted summary
judgment against Plaintiffs on their discrimina-
tion claim; on their claim for loss of consortium;
-19-
and on their claim for breach of duty of fair
representation. On Motion for Reconsideration
(DEN 104) by order filed May 3, 1989, (DEN 114 EX
915), the District Court denied Plaintiffs motion
as to Southern Pacific, but granted it as to the
Union Defendants, and directed Plaintiffs to file
an amended complaint by June 2, 1989. Plaintiffs
filed their Second Amended Complaint June 2, 1989
(DEN 115 EX 919). Defendants Union moved to strike
various causes of action and for Summary Judgment
(DEN 117 & 118). None of the other defendants
responded in any way to the Second Amended Com-
plaint. By order filed August 14, 1989, the court
granted Defendants Union's motion for summary
judgment as to plaintiffs claim for breach duty of
fair representation, and dismissed with prejudice
plaintiffs' second amended complaint. (DEN 130 EX
1143). Judgement was thereon entered August 21,
1989 (DEN 131 EX 1142). Plaintiffs filed their
Notice of Appeal on September 8, 1989 (DEN 133 EX
1150).
On June 1, 1992, the Ninth Circuit Court of
Appeal denied petitioners' appeal. On September
-20-
22, 1992, the Ninth Circuit issued an order that
Petitioners petition for rehearing was without
merit.
(B) STATEMENT OF FACTS
Joseph Z. Tu (JZT) and Sieu Mei Tu (SMT) are
husband and wife. (EX 41). Sieu Mei Tu is a
female, born in China on September 4, 1926. (DEN 1
EX 6) (EX 40). On May 15, 1962, SMT commenced
working for Defendant Railroads at the San Fran-
cisco offices of the Southern Pacific as a key
punch operator (DEN 90 EX 733) (EX 40) (EX 47).
On or about December 18, 1978, her private con-
tract of employment was reduced to a writing of
one page (DEN 1 EX 15 ). That contract provided
among other things, that if no job were available
for her, she would continue to be paid her salary
and benefits to age 65. The provision as it was
expressed in the private contract read as follows:
"Her position with this company is
not only permanent in nature but
she is, under our contract with
the Brotherhood of Railway, Air-
line & Steamship Clerks, "fully
protected" so that in the unlikely
event we were not to have a job
for her, she would continue to be
paid under that contract until she
reaches age 65 and can retire
-21-
under the provisions of Railroad
Retirement Act and receive the
appropriate pension therefron.
Mrs. Tu holds the
position of Payroll Clerk and her
current salary is over $1,300 per
month, and is due for an increase
therein of some ten percent more.
She is, and has always been, a
valued employee and even if her
present position were to be elimi-
nated, we would find some other
position for her to hold as we
would not want to lose her ser-
vices." (EX 15).
The contract with the Brotherhood of Railway,
Airline & Steamship Clerks (BRAC) referred to
therein, provided as follows:
"Section 11- In the event of a
decline in a carrier's business in
excess of 5% in the average per-
centage of both gross operating
revenue and net revenue ton miles
in any 30-day period compared with
the average of the same period for
the years 1968 and 1969, a reduc-
tion .in permanent positions and
employes may be made at any time
during the said 30-day period bey-
ond the operation of attrition as
referred to in Section 12 of this
Article to extent of one percent
for each one [percent the said
decline exceeds 5%...
THE PROVISIONS OF THIS SECTION
WILL NOT APPLY TO PACIFIC LINES
EMPLOYES IN THE SAN FRANCISCO GEN-
ERAL OFFICES WITH SENIORITY DATE
OF MARCH 16, 1963 OR EARLIER.... "
(emphasis added) (EX 971).
-22-
|
SMT's seniority date was MAY 15, 1962 (DEN 90 EX
867) (DEN 225) (EX 648, 672 & 738). Under the
applicable collective bargaining agreement SMT was
attributed to the San Francisco general offices
(DEN 38 and 115 Ex B section 5, DEN 90 Ex A pages
89-95, 740, and 815 Union supplemental extract of
record.) Commencing in the year 1982, there was a
concerted effort by the management of Defendant
Railways to curtail the business of refrigerated
car transportation (DEN 90 EX 737-738) to discou-
rage customer inquiries and to not inventory suf-
ficient freezer cars to service the customers.
(DEN 90 EX 737-738). This was coincidental with
Mr. Tom Ellen becoming the chief officer of PFE.
(DEN 90 Ex 738). At the same -time there was a
shift in the treatment of Plaintiff Sieu Mei Tu,
in that managerial people told her crude sexual
jokes, and made fun of her when she didn't under-
stand. When desk assignments were made, although
she was one of the most senior workers involved,
she would be denied the more favorable desk posi-
tions. She was moved into jobs that would cause
her to have the greatest friction with management
-23-
personnel. Plaintiffs age, race and or sex were
resented in relation to her assertive insistence
that management personnel properly account for
their use of cash funds and expenses, and her
refusal to go along with and overlook their con-
duct. (Ex 159-164). She was advised by her super-
iors to take jobs at lower pay than she was
receiving, and when she did so, she was required
to perform the same work as she had performed at
the higher paying position (EX 72). There was
exhibited by management a perceived attitude that
persons who were not native born were inferior.
Any mistake she made was attributed to her
national origin. Her accent, language and cul-
tural differences were the point of ridicule by
the company. (EX 154-159, 165-167 & 309). Sieu
Mei Tu, an accounting clerk, was assigned janito-
rial jobs and house cleaning jobs when persons
less senior were not required to perform these
duties. Plaintiff was assigned to work in an
unsafe location (EX 74). When her supervisor gave
her a 10 on her performance review, the controller
required the supervisor to drop her level to an 8.
-24-
Management created an atmosphere of fear that if
Plaintiff exercised her rights to seek damages
against the company for personal injuries received
on the job, she would fall from grace and her job
would be in jeopardy. ( EX 309) There was a con-
certed effort to attempt to force her to leave
"voluntarily". (DEN 90 EX 733).
In December, 1983, the Santa Fe Southern
Pacific Corporation acquired the right to all the
stock of Southern Pacific Transportation Company,
subject to ICC approval of the merger (EX 1124)
and formed the intent to merge the Santa Fe and
Southern Pacific railroads and sell and spin off
the valuable assets of Southern Pacific Transpor-
tation Company and Pacific Fruit Express. (DEN 38
page 12, DEN 45, and DEN 115 page 12 and Exhibit F
thereto) (EX 1124). When the ICC refused to
authorize the merger (October 10, 1986), the Rail-
road defendants were ordered by the ICC to
attempted to sell off the business of the SP (EX
1124). The Union that was suppose to represent
Plaintiff in protection of her employment rights
attempted to buy the SP on its own and sought to
-25-
become the bargaining agent for the consolidated
railroads. (DEN 38-page 15) (EX 189-193 & 884).
In 1985 the Railroad defendants closed the offices
of PFE, and moved its work back to the SP head-
quarters building. (DEN 115 page 12). Sieu Mei Tu
was moved into at least four different positions.
Except for one job that she bid for and was pro-
moted to in March, 1984, as General Clerk, all
subsequent jobs were at lesser pay rates(EX 91),
and no other person in her position experienced
this type of treatment. Beginning in March, 1985,
her job as General Clerk was abolished. She was
moved to a different job description at a lower
rate of pay and moved to a different department
downstairs (Car Service Clerk). In two weeks that
job was abolished and she was moved to a third job
at a still lower rate of pay. Then a bulletin was
posted as to the availability of Job 141 (miscel-
laneous clerk) (Job 141 had previously been des-
cribed as General Clerk) and Job 150 (bills pay-
able clerk). Since Sieu Mei Tu had performed both
of these jobs in the past, and was eligible to
select either one, she decided to bid for the
-26-—
bills payable clerk job.
She told her supervisor she was going to bid
for the bills payable clerk job. He asked her not
to do so. That job was given to a Caucasian woman
approximately 11 years younger than Sieu Mei Tu,
who was subsequently transferred to SP, leaving
Sieu Mei Tu in the position of bills payable clerk
(EX 101-110), which job was abolished (EX 77), and
Sieu Mei Tu was terminated (EX 48) without sever-
ance pay, without continuance of salary or bene-
fits, without accrual of further retirement
rights, and without the benefit of retirement.
She was too young to retire but considered by
her employer too old to be transferred. By
October, 1988, Sieu Mei Tu was the only PFE
employee who was not either transferred to SP,
severed with substantial benefits and pay, or
retired with special circumstances. She was the
only one without any golden parachute.(EX 735-
738).
Thereafter she interviewed for a open clerks
position at SP as a new hiree,. She was told by
the interviewer that there would be no recognition
-27-
7
of her seniority or years of service if she were
rehired. One of the attorneys for the employer
witnessed the interview process. After being put
through that interview process no job was offered |
to her.(DEN 64 and 88). It was clear she was
being further discriminated against because she |
filed this law suit, and had filed a charge of
discrimination with the California Fair Housing
Office. (EX 735-738).
Since the business of PFE has been transferred
to SP, it has shown substantial profitability.
Numerous jobs of the categories performed by Sieu
Mei Tu have been created and filled with new
employees. None of these positions were offered
to Sieu Mei Tu. (EX 735-738)
The number of Chinese employed by PFE has
never been reflective of the number of Chinese
living in the Bay Area and available for employ-
ment in jobs performed at PFE. (EX 736) In the pro-
cess of transferring PFE operations to Southern
Pacific Transportation, statistically 1/8th of
those on the PFE Seniority District 1 list on
October 1, 1985 were of Chinese national origin,
-28-
while 7/8ths were Caucasian. 1/2 of those of Chi-
nese national origin were transferred to SP and
1/2 terminated, while 8/13ths of the Caucasian
population were transferred to the SP, and 5/l3ths
"furloughed". 100% of the Caucasian population is
now employed at SP or offered employment at SP,
while 50% of the Chinese population has neither
been transferred nor offered employment at SP.
(Fend Declaration Exhibits A-D; Tu Declaration
par. 5, 6, 7, 10) 1/3 of those over age 55 were
transferred to SP, while 2/3 of those over 55 were
furloughed. 7/17ths of the population at PFE cov-
ered by the Union contract were females, while
9/17ths were male. 4/7ths of the female population
were transferred while 5/8ths of the male popula-
tion were transferred (DEN 87 EX 526)
Defendants then employed young workers who had
not previously worked for Defendants to perform
the duties Plaintiff performed prior to her termi-
nation (DEN 90 EX 733).
The Defendants claimed they were entitled to
discharge Sieu Mei Tu under the collective bar-
gaining provision concerning decline in business
-29°-
(EX 871). Upon her discharge, Sieu Mei Tu,
requested the Union to institute proceedings and
render its aid for her defense against this unwar-
ranted treatment by her employer, and notified the
employer of her desire to engage in administrative
process for resolution of her claims. The
employer refused to engage in administrative reso-
lution with Sieu Mei Tu independently and advised
her that the Union had filed claim under the col-
lective bargaining contract and her claim was
being handled under the Railway Labor Act ("RLA")
procedures. The Union's only response was that
Mrs. Tu's letter had been sent to a wrong address
and to assure her that the Union was "progressing
a claim in accordance with the PFE/B.R.A.C. Agree-
ment in behalf of Mrs. Tu and all other B.R.A.C.
PFE clerical employes affected by PFE Management
decision to close the Brisbane PFE office." (DEN
50 EX 286-290). On at least three occasions, the
attorney for Plaintiff telephoned the Union to
determine the nature and progress of the claim the
Union was supposedly pursuing for Plaintiff Sieu
Mei Tu, and the name and location of the attorney
-30-
handling the matter. He was finally given the
name of an attorney on the East Coast, whom he
called. That attorney advised Plaintiffs attorney
he knew nothing of a claim on behalf of Sieu Mei
Tu, but was acting for the Union in a suit filed
against the Railroads and then pending in the
United States Court in Utah, but that action only
concerned PFE employees who had been transferred
to SP and did not involve any issues concerning
PFE employees that had been "furloughed". Plain-
tiff's attorney requested copies of the pleadings
filed in that matter, but never received the same.
(DEN 89 EX 696) Plaintiff's attorney filed suit
in the state court to protect and pursue Plain-
tiff's California causes of action. After South-
ern Pacific Transportation appeared, its counsel
requested Plaintiffs not to serve the other defen-
dants inorder to facilitate early settlement of
this matter. Pursuit of the objective of settle-
ment rather than trial appeared to Plaintiffs to
be a worthy objective. Plaintiffs believed
reliance on such a representation was good cause
for not serving the other defendants. When it
-3l1l-
became apparent that there would be no good faith
meaningful settlement discussions, Plaintiffs
served the other defendants. (DEN 45) Until the
lower court ruled that the matter was properly
removed to the Federal Court Plaintiff had good
cause to believe that the matter would be remanded
to the State Court, and thus good cause to believe
that Rule 4(j3) would be inapplicable to this
action. (DEN 89 Ex 694-696).
In proceedings before the ICC the Union pres-
ented no evidence of the adverse effect of the
merger on employees of the Railroad (EX 1124 &
1135-1140). On January 25, 1989, the ICC refused
to include determination of the issue of adverse
effect of the merger on employees and provided
that employees that had such a claim should pursue
those claims in a civil action. (Ex 1124-1128).
The ICC was subsequently instructed by the 9th
Circuit that the ICC had exclusive jurisdiction
which precluded aggrieved employees from filing
claims directly with the district court under sec-
tion 11705. Kraus _ v. Santa Fe Southern Pacific
Corp, 878 F2d 1193 (9th Cir. 1989) 27,28
-32-
The Union has never claimed that it made a
judgmental determination not to process all of
plaintiff's claims administratively under the RLA.
The defendants blocked the taking of discovery
by Plaintiff affecting her ability to meet the
motions for summary judgment and or dismissal. (EX
694). Plaintiff was denied the right to seek
further discovery by the District Court.
(i) BASIS CLAIMED BY DEFENDANTS FOR FEDERAL
JURISDICTION TO REMAND FROM THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA TO THE UNITED STATES
DISTRICT COURT OF NORTHERN CALIFORNIA
Defendants Petition for Removal states:
"Petitioner PFE is...a "carrier"
within the meaning of the Railway
Labor Act, 45 USC % 151 et seg.
This suit is a civil suit of
which this court has original
jurisdiction under 28 USC %%1331
and 1337 and is one petitioner
is entitled to remove to this
court pursuant to 28 USC %1441
because it is founded on a
Claim arising under a law of
the United States, the Railway
Labor Act, 45 USC %151 et seg.,
and the amount in controversy
exceeds the sum of $10,000
exclusive of interest and costs."
(j) ARGUMENT
AMPLIFYING THE REASONS
RELIED ON FOR ALLOWANCE OF THE WRIT
-33-
The Court of Appeal Ninth Circuit in the instant
matter so overlooked or misapprehended the law and
facts applicable here as to result in a gross mis-
carriage of justice against which the Supreme
Court should act.
THE COURT OF APPEAL WAS REQUIRED TO REVIEW THE
GRANTING OF SUMMARY JUDGMENT DE NOVO
The district court's grant of summary judgment is
reviewed de novo on appeal, Miller v. Fairchild
Indus., Inc., 797 F.2d 727 (9th Cir. 1986)? Gallon
v. Levin Metals Corp., 779 F.2d 1439, 1440 (9th
Cir. 1986).
A TRIABLE ISSUE OF FACT AS TO THE ESTOPPEL OF
THE EMPLOYER TO CLAIM JUSTIFICATION FOR DISCRI-
MINATION BASED ON ECONOMIC DECLINE PROHIBITED
GRANTING OF SUMMARY JUDGMENT ON THE DISCRIMINA-
TION CLAIMS
Plaintiff presented ample evidence of
discrimination by her employer. Even the lower
court recognized that she had done so. (EX 89)
The lower court stated:
"In the present case, plaintiff
Sieu Mei has stated a prima facie
case of discrimination. She is a
member of three protected groups.
Her job performance prior to her
dismissal was at the very least
satisfactory, and several of her
superiors rated her work as excep-
-34-
tional. She was’ furloughed
instead of being transferred to SP
in 1985. Other employees who were
not over 40, female, or Asian,
were transferred into positions at
SP that Sieu Mei was qualified to
perform. Thus, a prima facie
showing of intentional discrimina-
tion has been made by plaintiffs."
Summary judgment would have been appropriate
only if there had been no genuine issue of mater-
ial fact of discrimination. But there was demon-
strated such a material fact, so that granting of
summary judgment, denied plaintiff the right to
full discovery and trial by jury.
In Perez v. Curcio, (CA9th 1988) 841 F.2d 255,
Perez, an employee of the City of Phoenix, brought
a age discrimination against the city. Summary
judgment for the city was granted by the District
Court. On appeal the 9th Circuit reversed and
remanded stating at 258:
"In this case, Perez must demon-
strate that the City's asserted
reasons for her demotion and ter-
mination were pretextual; i.e.,
either that a discriminatory rea-
son more likely than not motivated
the employer or that the
employer's explanation is unworthy
of credence. In ruling on a sum-
-35-
mary judgment motion "(t)he evid-
ence of the non-movant is to be
believed, and all justifiable
inferences are to be drawn in her
favor." (citing authority) As long
as Perez has introduced some evid-
ence from which a jury could
believe Perez's explanation rather
than the City's explanation and
material questions of fact exist,
the case must go to a jury."
In the instant matter Plaintiff has set forth
a history of discrimination against her beginning
in 1982, where she has been treated differently
than others, finally coming to the present day
where she is in a position of being discriminated
against in retaliation for her having called into
question her employers discriminatory actions.
Here Plaintiff was an exemplary employee, serving
for 22 1/2 years the same employer, getting exem-
plary performance reports, being promoted, and
receiving pay raises. Then when she is only 2 1/2
years away from fully qualifying for full retire-
ment benefits (25 years service) the rug is yanked
out, and jobs she has performed with distinction
are given to younger inexperienced and/or lesser
experienced people. Every other of her co workers
are protected but she is signalled out for example
-36-
and denied her job and dignity.
In Rollins v. Techsouth, Inc. (CA 11th 1987)
833 F.2d 1525 at 1528 the court reviewed the crit-
eria for establishing a prima facie case of age
discrimination. It stated:
"The plaintiff must first estab-
lish a prima facie case of age
discrimination, by showing (1)
that plaintiff was between forty
and seventy, and thus in the pro-
tected age group, (2)that plain-
tiff was qualified to do the work,
(3) that the employer discharged
plaintiff, and (4) that the
employer subsequently replaced
plaintiff or sought a replacement.
If plaintiff can establish a prima
facie case, a presumption arises
that defendant fired plaintiff for
> discriminatory reasons."
In the instant matter Plaintiff has shown that
she was 59 years of age when discharged (EX 526),
that she was qualified to do the work (EX 733)
that she was discharged (EX 608 & 733), the
employer subsequently replaced plaintiff (EX
735-737).
In the instant matter, plaintiff presented
evidence that the employer represented to her that
she was "fully protected" (EX 15). In reliance on
that she continued to perform her employment
-37-
duties above average without complaint, suffered
extreme treatment, stayed with the employer even
though her commute was significantly increased
when the offices were moved within the confines
of the San Francisco General offices but to a less
accessible location Brisbane. (EX 72, 74, 154-167,
309, 733).
Plaintiff, being the party opposing motion for
summary judgement with sworn declarations is
entitled to her sworn statements taken as true for
purposes of deciding the motion; the court can not
resolve credibility issues with respect to direct
evidence. McLaughlin v. Liu (9th Cir 1988) 849
F.2d 1205. That court quoted at 1208 with favor
from T. W. Elec. Serv. v. Pacific Electric Con-
tractors Assn. (9th Cir. 1987) 809 F.2d 626,
630-31 as follows:
"... the judge does not weigh con-
flicting evidence with respect to
a disputed material fact....Nor
does the judge make credibility
determinations with respect to
statements made in affidavits,
answers to interrogatories, admis-
sions, or depositions....These
determinations are within the pro-
vince of the fact-finder at trial.
Therefore, at summary judgment,
the judge must view the evidence;
-38-
in the light most favorable to the
nonmoving party; if direct evid-
ence produced by the moving party
conflicts with direct evidence
produced by the nonmoving party ,
the judge must assume the truth of
the evidence set forth by the non-
moving party with respect to that
fact."
The single page representation of the employer (Ex
937), the oral representations of her superiors
that she was "fully protected" (EX 15), and the
collective bargaining agreements (Ex 938) estab-
lish the making of a statement on which it was
intended plaintiff would rely, and the evidence
presented by plaintiff demonstrates that she did
so rely on the representations, so that the tri-
able, material issue of estoppel was presented by
plaintiff making the granting of summary judgment
to the employer inappropriate.
Clearly an issue of the employer being
estopped from claiming the right to discriminate
against her based on a decline in business is a
triable issue of fact so that summary judgement
should not have been granted.
SUMMARY JUDGEMENT SHOULD NOT BE GRANTED WHERE A
TRIABLE ISSUE OF FACT IS PRESENTED BY PLAINTIFF
THAT THE EMPLOYERS RELIANCE ON DECLINE IN BUSI-
NESS IS A PRETEXT TO COVER THE DISCRIMINATION
EXERCISED AGAINST PLAINTIFF. WHERE AS HERE
-39-
PLAINTIFF PRODUCES EVIDENCE THAT THE EMPLOYER IS
CONTRACTUALLY BOUND NOT TO DISCHARGE PLAINTIFF
BECAUSE OF ECONOMIC DECLINE, THE EMPLOYER PURPO-
SEFULLY CAUSED THE ECONOMIC DECLINE, WHEN THE
BUSINESS WAS TRANSFERRED BACK TO THE HEADQUART-
ERS BUILDING OF THE SP, IT PROSPERED, PLAINTIFF
IS THE ONLY EMPLOYEE TREATED IN THIS FASHION,
AND NEW, YOUNGER, NON CHINESE EMPLOYEES, WITH
LESS EXPERIENCE THAN PLAINTIFF ARE HIRED TO PER-
FORM THE DUTIES PREVIOUSLY PERFORMED BY PLAIN-
TIFF.
The issue presented here of an employer purpo-
sefully causing an economic decline in aid of a
pianned merger with another railroad, in order to
circumvent a collective bargaining agreement and
using that decline in business as a pretext for
discriminating against an employee appears to be
an issue of first impression. Under California
contract law of offer and acceptance, it appears
evident, that the collective bargaining agreements
involved in the instant matter, to the extent they
provide for the right of the employer to "fur-
lough" employees during a formulated decline in
business (EX 971) or where business is interrupted
by emergencies (EX 962), were intended to concern
themselves only with conditions beyond the employ-
er's control, but the intent and purpose of the
agreement can not be to allow the invocation of
-40-
those provisions when the employer causes the con-
ditions for the very purpose of negating the con-
tractual terms.
The fact that the employees inorder to protect
themselves when these conditions apply must stand
ready to return to work on two weeks notice
further demonstrates the intent and purpose of
these provisions to deal with temporary conditions
of the market not purposefully created by the
employer.
To allow such conduct would be to make a mock-
ery of the collective bargaining process.
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED
DEFENDANT EMPLOYER ON DISCRIMINATION CAUSE OF
ACTION WHEN THERE IS A MATERIAL TRIABLE ISSUE OF
FACT OF VIOLATION OF STATE STATUE PROHIBITING
DISCRIMINATION AGAINST EMPLOYEES BASED ON THEIR
EXERCISE OF RIGHT TO INSTITUTE PROCEEDINGS
CLAIMING DISCRIMINATION
In the instant matter, there is a triable
issue of fact presented of discrimination ~post
discharge of plaintiff because of her exercise of
her right to institute proceedings concerning her
discriminatory discharge. Post termination, she
interviewed for a clerk's position at SP as a new
hiree, was not hired, while numerous jobs of the
-4l1-
categories previously performed by Sieu Mei Tu
with distinction have been created and filled with
new younger workers (EX 733 & 736-738). All other
employees at PFE, including the Union Local Chair-
man, Mr. Balovich, have all been rehired at SP,
given the opportunity of substantial severance pay
benefits or continue employment, or allowed to
retire with full retirement rights to age 65, or
other golden parachute provisions. Sieu Mei Tu is
the only terminated employee who has not received
such benefits. She is the only terminated
employee the employer was contractually obligated
to give "full protection" , being the only
employee on the roster at termination with a
seniority date prior to March 16, 1963 (EX
736-738).
Where the party opposing summary judgment pre-
sents evidence that tends to support her claim, as
here where plaintiff has presented retaliatory
discrimination evidence, summary judgment should
not have been granted. To have done so was a
gross miscarriage of justice.
In Eisenberg v. Insurance Co. of N. Am. (CA
-42-
9th, 1987) 815 F2d 1285, Plaintiff brought an
action against his former employer, an insurance
company alleging retaliatory discharge and fraud.
Defendant employer moved for summary judgment,
claiming that the fraud claim was unfounded and
that other claims were time-barred. In his
response to the motion, Plaintiff asserted that he
had been fired for refusing to violate California
Law. The district court granted summary judgment
for defendants on all claims, ruling that plain-
tiff's response to the motion was conclusory and
thus inadequate. The court of appeals reversed,
holding that summary judgment was improperly
granted.
The court stated at 1290:
"However, termination in retali-
ation...would not constitute dis-
charge for good cause....ICNA
merely asserts that it had good
cause to terminate the Appellant's
employment--namely, considerations
of economy. The Appellant,
however, has adduced his declara-
tion and the memoranda as direct
evidence to contradict this asser-
tion. Since the evidence must be
taken as true, T. W. Electrical at
630-31, the Appellant's breach of
contract claim is not vulnerable
to summary disposition."
-43-
DEFENDANT RAILROADS WERE NOT ENTITLED TO SUMMARY
JUDGMENT ON PLAINTIFFS TORT CLAIMS ON THE BASIS
THAT THE TORT CLAIMS FRAMED IN THE FIRST AND SEC-
OND AMENDED COMPLAINTS ARE MINOR DISPUTES, SO THAT
THE SOLE REMEDY IS ARBITRATION UNDER THE COLLEC-
TIVE BARGAINING AGREEMENT.
PLAINTIFF WAS ENTITLED TO PROCEED ON HER CLAIMS
AND WAS NOT LIMITED TO ARBITRATION UNDER THE
COLLECTIVE BARGAINING AGREEMENT. FAILURE TO
ALLOW PLAINTIFF TO DO SO WAS A GROSS MISCARRIAGE
OF JUSTICE, AND IN CONFLICT WITH OTHER CIRCUITS.
In the lower court the railroad defendants
argued that Plaintiffs exclusive remedy on her
tort claims for infliction of mental distress and
discrimination was arbitration under the collec-
tive bargaining agreement within the confines of
administrative action under the RLA and the lower
court so ruled (EX 306). Under the circumstances
of this case, this was patently incorrect. In
Atchison, Topeka and Santa Fe Railway Company v.
im Buell, (1987) 107 S. Ct. 1410, 771 F2d 1320
(CA9th opinion) a railroad employee brought an
action in tort for emotional distress arising from
his employment conditions. The railroad filed an
answer, asserting, among other defenses, that the
employees sole remedy was before the NRAB. The
District Court granted summary judgment to the
railroad on this issue. The Ninth Circuit rev-
-44-
ersed, 771 F2d 1320. The Supreme Court on review
stated at 1413:
"Additionally, although the ques-
tion had neither been raised by
the parties, nor addressed by the
District Court, the Court of
‘Appeals proclaimed that a relevant
"issue, one of first impression in
this circuit, is whether a Rail-
road employee's wholly mental
injury stemming from his railroad
employment is compensable under
the [(FELA)." Id, at 1321. The
Court of Appeals concluded that
the FELA does authorize recovery
for emotional injury."
The Supreme Court affirmed the Court of
Appeals in its determination that the RLA does not
preclude actions brought by railway employees
against their employers for emotional injuries.
Id, at 1418. In arriving at its decision, the
Court stated at 1415:
" The court has, on numerous occa-
sions, declined to hold that indi-
vidual employees are, because of
the availability of arbitration,
barred from bringing claims under
federal statutes (citing author-
ity). Although the analysis of the
question under each statute is
quite distinct, the theory running
through these cases is that not-
withstanding the strong policies
encouraging arbitration, "differ-
ent considerations apply where the
employee's claim is based on
-45-
rights arising out of a statute
designed to provide minimum sub-
stantive guarantees to individual
workers." (citing authority)
The principle is instructive on
the question before us. The FELA
not only provides railroad workers
with substantive protection
against negligent conduct that is
independent of the employer's
obligations under its collective-
bargaining agreement, but also
affords injured workers a remedy
suited to their needs, unlike the
limited relief that seems to be
available through the Adjustment
Board. It is inconceivable that
Congress intended that a worker
who suffered a disabling injury
would be denied recovery under the
FELA simply because he might also
be able to process a narrow labor
grievance under the RLA to a
successful conclusion. As then
District Judge K. Skelly Wright
concluded, " the Railway Labor
Act...has no application to a
Claim for damages to the employee
resulting from the negligence of
an employer railroad."
Afortiori, the same must apply to a claim for
damages resulting from the intentional acts of an
employer railroad in discriminating against an
employee in violation of her civil rights.
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED
WHEN PLAINTIFF-OPPOSING PARTY HAS BEEN DENIED
DISCOVERY BY DEFENDANTS AND NONMOVING PARTY
REQUIRES ADDITIONAL TIME FOR DISCOVERY.
Rule 56 (f) provides:
-46-
"Should it appear from the affida-
vits of a party opposing the
motion that the party cannot for
reasons stated present by affida-
vit facts essential to justify the
party's opposition, the court may
refuse the application for judg-
ment or may order a continuance to
permit affidavits to be obtained
or depositions to be taken or dis-
covery to be had or may make such
other order as is just."
In the instant matter, plaintiff demon-
strated that defendants had prevented plaintiff
from procuring discovery and advised the lower
court of plaintiff's need to conduct discovery to
meet the motions for summary judgment and dismis-
sal (EX 694). It was a gross abuse of discretion,
and a gross miscarriage of justice for the trial-
court to proceed to judgment without plaintiff
being given an order requiring the defendants to
respond to the demands for discovery and for the
Court of Appeal not to return the case to the
trial court for further discovery. 6 Part 2
Moore's Federal Practice 56-304
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO
UNION DEFENDANTS. WHERE AS HERE THE UNION
FAILED TO PERFORM PROCEDURAL OR MINISTERIAL ACTS
WITHOUT ANY RATIONAL OR PROPER BASIS FOR THE
UNION'S CONDUCT REFLECTING A RECKLESS DISREGARD
FOR THE RIGHTS OF THE INDIVIDUAL EMPLOYEE SUM-
MARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED
-47-
The standard for finding a breach of the duty
of fair representation by a union is whether the
union's conduct is arbitrary, discriminatory, or
in bad faith. Vaca v. Sipes 386 U>S> 171, 190,
Peterson v. Kennedy, (CA 9th 1985) 771 F. 2a 1244,
Cert. denied 0.8. , £06 8. Ce. i662
(1986). In the context of a grievance this stan-
dard prohibits a union from ignoring a meritorious
grievance or processing that grievance perfuncto-
rily. Galindo v. Stoody Co., (CA 9th 1986) 793
F.2d 1502.
In the instant matter the record demonstrates
that the Union failed to perform the procedural
act of advising the arbitrator of Sieu Mei Tu's
claim of discrimination in her discharge, nor of
her claim of discrimination in retaliation for her
having exercised her right to claim discrimina-
tion, nor her claim of exemption from the decline
in business exception under the collective bar-
gaining agreement. Since the Union failed to
consult with her attorney, investigate the claim
made by Sieu Mei Tu, or take any action to resolve
her dispute with her employer concerning her
-48-
individual situation, they engaged in a reckless
disregard for the rights of Sieu Mei Tu and the
granting of summary judgement to the union
denying Sieu Mei Tu to her precious rights to
discovery and trial by jury was a gross miscar-
riage of justice.
The Union made no claim it made a judgmental
decision not to present all Sieu Mei Tu's claims.
It's failure to do so was a procedural and/or
ministerial act, not involving an exercise of
judgment, were there was no rational or proper
basis for the union's conduct.
The Union Defendant, undertook to represent
the interests of the Plaintiff Sieu Mei Tu, a menm-
ber of the union, in the administrative resolution
of the matter of her claim for the Railroads
wrongful and tortious breach of the collective
bargaining contract of employment. In breach of
its obligation of fair representation, the union
failed to present any evidence to support plain-
tiffs claims of discrimination in termination,
discrimination in rehiring in retaliation for
bringing discrimination claim, exemption from dec-
-49-
line in business provisions for furloughing under
the collective bargaining agreement.
In the leading case of Vaca v. Sipes, 386 U.S.
171 (1967), the Supreme Court held that the duty
of fair representation could be enforced in a
damage action by an employee against a union.
That court granted to the union wide discretion in
making the decision whether to take a grievance to
arbitration, but provided that if the union does
process the grievance it may not arbitrarily
ignore a meritorious grievance or process in a
perfunctory fashion. In Vaca supra at 191 the
court stated:
"... we accept the proposition
that a union may not arbitrarily
ignore a meritorious grievance or
process RA in perfunctory
fashion...."
In Wise v. Southern Pacific Co. (1963) 223 CA2d
50; 35 C.R. 652, held that a railroad employee may
bring and maintain a common-law or, where a state
so provides, statutory action for damages for his
wrongful discharge from employment in breach of a
collective bargaining agreement, and is not barred
from doing so by the Railway Labor Act. This view
-50-
was confirmed by the California Supreme Court in
Wise v. Southern Pac. Co., 1 C3d 600; 83 CR 202;
at 603. See also Shaw _v. Metro-Goldwyn-Mayer,
Inc., (1974) 37 CA 3D 587, 597; 113 CR 617.
In the instant action, Union decided to pro-
cess administratively Plaintiff's claim for wrong-
ful termination. However in processing that claim
Union acted in an arbitrary, prejudicial, perfunc-
tory manner in that Plaintiff's Union failed among
other things to perform the procedural and mini-
sterial duties of presenting evidence at the arbi-
tration hearing held in regard to the claims of
plaintiff, did not confer with the Plaintiff or
her attorney concerning her claims, failed to make
any claim of discrimination on behalf of Plain-
tiff, failed to protect her from retaliation by
reason of the claims she made personally, and pro-
cedurally failed to advise the arbitrator the
application of decline in business to Plaintiff's
"furlough" was inappropriate despite the inapplic-
ability of that provision to her by reason of her
seniority. (EX 602)
Union failed to act from a conflict of inter-
-51-
est, in that at the time it was suppose to be
fairly representing Plaintiff it was acting in its
own self interest seeking to purchase Defendant
SP, and simultaneously seeking to become the bar-
gaining unit for any combined railroad in the
event the pending sale to Santa Fe or some other
railroad was ultimately approved. (EX 189-193, 884)
Rule 56 Rules of Civil Procedure does not per-
mit entry of summary judgment, where there are, as
here, genuine material issues of fact. In Traylor
v. Black, Sivalls & Bryson, (CA 8th, 1951) 189 F2a
213, at 216, the court stated the rule as follows: ~
"A summary judgment upon motion
therefor by a defendant in an
action should never be entered
except where the defendant is
entitled to its allowance beyond
all doubt. To warrant its entry
the facts conceded by the plain-
tiff, or demonstrated beyond rea-
sonable question to exist, should
show the right of the defendant to
a judgment with such clarity as to
leave no room for controversy, and
they should show affirmatively
that the plaintiff would not be
entitled to recover under any dis-
cernible circumstances....A sum-
mary judgment is an extreme
remedy, and under the rule, should
be awarded only when the truth is
quite clear....And all reasonable
doubts touching the existence of a
genuine issue as to a material
-52-
fact must be resolved against the
party moving for summary judg-
ment."
See also Lane Bryant v. Maternity Lane, Ltd. of
California, (CA9th 1949)173 F2d 559;Lew_v. Kona
Hospital, (CA9th, 1985) 754 F2d 1420; Eisenberg v.
Insurance Co. of North America (CA9th, 1987) 815
F2d 1285.
THE RAILROAD DEFENDANTS SHOULD NOT HAVE BEEN DIS-
MISSED FROM THE ACTION
In reviewing orders of dismissal, the court of
appeals must view the evidence most favorable to
the plaintiff, and plaintiff was entitled to the
benefit of all inferences that may be reasonably
drawn from the evidence presented. Reimche v.
First Nat. Bank of Nevada, (CA 9 1975) %12 F2d
187. The failure of the Ninth Circuit to grant
Plaintiff the benefit of those inferences resul-
ted in a gross miscarriage of justice.
SUMMARY JUDGMENT WAS NOT GRANTED ON THE FIRST
AMENDED COMPLAINT ON PLAINTIFF'S CAUSES OF
ACTION FOR INTENTIONAL AND/OR NEGLIGENT INFLIC-
TION OF EMOTIONAL DISTRESS, CONSPIRACY, BREACH
OF CONTRACT OF EMPLOYMENT, BREACH OF GOOD FAITH
AND FAIR DEALING CONSPIRACY NOR ON ANY CAUSES OF
ACTION AGAINST RAILROAD DEFENDANTS, YET THE
DISTRICT COURT DISMISSED WITH PREJUDICE THE
ENTIRE SECOND AMENDED COMPLAINT WHICH HAD BEEN
SERVED ON ALL RAILROAD DEFENDANTS AND UNION
=-53<
DEFENDANTS AND THE COURT OF APPEAL SUSTAINED
THAT ACTION, RESULTING IN A GROSS MISCARRIAGE
OF JUSTICE
The District Court by its order of May 3,
1989, (EX 915) directed Plaintiffs to file an
amended complaint by June 2, 1989. Plaintiffs
complied by filing a Second Amended Complaint (EX
919). All railroad and all Union defendants were
served by mail (EX 1129). None of the Railroad
defendants responded in any fashion to the Second
Amended Complaint.
Defendant Union filed a motion to strike
causes of action one through five, seven, and
eight, and moved for summary judgment as to the
sixth cause of action
The District Court incorrectly ruled:
"Since only '‘'Doe' defendants
remain in the action, this Court
DISMISSES plaintiffs' second
amended complaint WITH PREJUDICE."
(EX 1143)
All parties who have appeared in an action
remain in the action until a final judgment is
rendered. In this action, when the Second Amended
Complaint was filed and served, there was no final
judgment. Therefore the District Court's position
-54-
that only doe defendants remained was grossly in
error, and its ruling dismissing the Second
Amended Complaint was a gross abuse of discretion
resulting in a gross miscarriage of justice,
necessitating the Court of Appeal to remand the
state causes of action to the Superior Court of
the State California, in and for the City and
County of San Francisco, and the federal causes of
action to the District Court for jury trial
against all defendants. Dayton Board of Education
v. Brinkman (1977) 433 US 406.
SECOND AMENDED COMPLAINT ANSWERED COURTS BASIS
THAT FOR VIOLATION OF 49 USC 11347 MUST FIRST GO
TO ICC. SECOND AMENDED COMPLAINT ALLEGED THAT
PROCEEDINGS WERE COMMENCED BEFORE ICC AND ICC
AUTHORIZED INDIVIDUAL EMPLOYEES TO PROCEED WITH
CIVIL REMEDIES, THEREFOR DISMISSAL OF SECOND
AMENDED COMPLAINT WAS A GROSS ABUSE OF DISCRETION
By its order dated June 30, 1988 (EX 305), the
District Court dismissed Plaintiff's fifth cause
of action for conspiracy and violation of 49 USC
11347, as follows:
"Insofar as a private cause of
action might exist for termination
due to the aborted merger, this
court concludes that it is not the
proper forum for an initial deter-
mination of this matter. The
Interstate Commerce Commission is
the appropriate agency for an
-55-
initial determination of any
Claimed violation of 49 U.S.C.
$11347, which provides’ for
employee protection in any rail
carrier merger." (EX 305)
Thereafter, by order of court, a Second Amended
Complaint was filed (EX 919). In that verified
Second Amended Complaint, plaintiff set forth the
decision of the ICC (Ex 1124), which provided that -
ICC would not proceed with determination of the
Claims of the individual employees under 49 USC
11347. The District Court then proceeded sua
sponte to dismiss the Second Amended Complaint.
This action was a gross abuse of discretion and
grievous error, causing plaintiff to be denied a
fair hearing on her claim, and a gross miscar-
riage of justice. The failure of the Court of
Appeal to remand and direct the lower court to
proceed to trial again resulted in the denial of
a fair hearing to Sieu Mei Tu, and was a gross
miscarriage of justice.
IT WAS GROSS ABUSE OF DISCRETION AND GRIEVOUS
ERROR, WHICH DENIED PLAINTIFF A FAIR HEARING FOR
THE DISTRICT COURT TO REFUSE PLAINTIFFS MOTION TO
REMAND THE ORIGINAL COMPLAINT TO STATE COURT
When the trial court grossly abuses its dis-
-56-
\
cretion and or commits grievous error, so as to
deny plaintiff a fair hearing on her claim, the
reviewing court must remand and direct the lower
court. Dayton Board of Education v. Brinkman
The failure of the Court of Appeal to do so
was in conflict with decisions of other circuits
and a gross miscarriage of justice.
THE ORIGINAL COMPLAINT WELL PLED STATE COURT
CAUSES OF ACTION, IT WAS FILED IN THE STATE COURT
AND WRONGFULLY REMOVED TO THE DISTRICT COURT. ON
PLAINTIFFS MOTION TO REMAND BACK TO THE STATE
COURT IT WAS GROSS ERROR NOT TO DO SO.
Plaintiffs' complaint in this matter alleges
various tortious causes of action based on neglig-
ent and or intentional bad faith, unfair, oppres-
sive, fraudulent and malicious termination of
plaintiff Sieu Mei Tu's long standing employment
by Defendant Pacific Fruit Express, in violation
of laws of the State of California. The Complaint
sought special damages; general damages for emo-
tional distress; and punitive damages.
The question of whether the federal district
court had jurisdiction of the subject matter of
the complaint (ie the nature of the action) which
had been removed from the state court, was
=-57=
required to be answered under California law.
Electronic Race Patrol, Inc. (D.C.N.Y. 1961) 191
F. Supp. 364. Removal statutes are strictly con-
structed in favor of state court jurisdiction.
Strange v. Arkansas-Oklahoma Gas Corp. (D. C. Ark.
1981) 534 F. Supp. 138. Removal statutes are to be
strictly construed against removal and in favor of
remand. Heatherton v. Playboy. Inc. (D.C. Cal
1973) 60 F.R.D. 372.
28 USCA 1445 (a) provides:
"A civil action in any State court
against a railroad...arising under
sections 51-60 of Title 45, may
not be removed to any district
court of the United States."
45 USCA 51 provides:
"Every common carrier by railroad
while engaging in commerce between
any of the several states ...shall
be liable in damages to any person
suffering injury while he is
employed by such carrier in such
commerce....
The complaint in this matter was brought by two
plaintiffs. All of the causes of action of the
complaint were actions under state law, involving
issues of grave concern to the State of Cali-
fornia and deeply rooted in its legal system.
-58-
Plaintiffs neither alleged nor relied on the Rail-
way Labor Act. All causes of action were pled
under state law. The complaint was properly filed
in state court and the issues raised should have
been tried in state court. The Railway Labor Act
does not preempt plaintiffs' state court actions.
In Caterpillar Inc. v. Williams, (107 S.Ct.
2425 (1987), the United States Supreme Court by
Justice Brennan held that where former employees
brought action against former employer for breach
of individual employment contracts, the action was
removed, and the United States District Court for
the Northern District of California, Charles A.
Legge, J., denied motion to remand , and dis-
missed, the Supreme Court ruled on basis that (1)
complaint asserting breach of individual employ-
ment contracts was not completely preempted by
federal labor law, and (2) fact that employer
raised defense that individual contracts were sup-
erseded by subsequent collective bargaining agree-
ment, and thus preempted by federal labor law, did
not establish that employees claims were remov-
able.
-59-
The court stated at 2429:
"Only state court actions that
originally could have been filed
in federal court may be removed to
federal court by the defendant.
Absent diversity of citizenship,
federal question jurisdiction is
required. The presence or absence
of federal-question jurisdiction
is governed by the “well-pleaded
complaint rule," which provides
that federal jurisdiction exists
only when a federal question is
presented on the face of plain-
tiff's properly pleaded complaint.
See Gully v. First National Bank,
~- 299 U.S. 109, 112°113, S7 S.Ct.
96, 97-98, 81 L.Ed. 70 (1936). The
rule makes the plaintiff the mas-
ter of the claim; he or she may
avoid federal jurisdiction by
exclusive reliance on state law.
In the instant matter the common law agree-
ment is subsequent to the collective bargaining
unit and is magnificently simple in its applica-
tion. (EX 15) It provides that in addition to
her rights under the collective bargaining agree-
ment, “even if her present position were to be
eliminated, we would find some other position for
her to hold...." This does not require interpreta-
tion or application of the collective-bargaining
agreement. It presents a simple contract right
between two contracting parties, easily under-
-60-
stood, and applied. It presents no federal
issues. The tort claims alleged also presented
state court causes of action which should not have
been removed and should have been remanded by the
Ninth District Court of Appeal. Failure to do so
was a departure so far from the accepted and usual
course of justice as to call on this Court's power
of supervision, to prevent a gross miscarriage of
justice, and conflict between the circuits.
In Caterpillar Inc. v. Williams, supra, the
court points out, at 2431:
",... %aindividual employment con-
tracts are not inevitably supers-
eded by any subsequent collective
agreement, covering an individual
employee, and claims based upon
them may arise under state law.
Caterpillar's basic error is its
failure to recognize that a plain-
tiff covered by a collective-
bargaining agreement is permitted
to assert legal rights independent
of that agreement, including sta-
te-law contract rights, so long as
the contract relied upon is not a
collective bargaining agreement.
(citing authority) Caterpillar
impermissibly attempts to create
the prerequisites to removal by
ignoring the set of facts (i.e.
the individual employment con-
tracts) presented by respondents,
along with their legal characteri-
zation of those facts, and arguing
that here are different facts
-61-
respondents might have alleged
that would have constituted a fed-
eral claim. In sum, Caterpillar
does not seek to point out that
the contract relied upon by
respondents is in fact a collec- d
tive agreement; rather it attempts ;
to justify removal on the basis of
facts not alleged in the con-
plaint. The “artful pleading"
doctrine cannot be invoked in such
circumstances.
The court specifically states at 2427:
" The presence or absence of fed-
eral-question jurisdiction is gov-
erned by the "well-pleaded com-
plaint rule," which provides that
federal jurisdiction exists only
when a federal question is pres-
ented on the face of the plain-
tiff's properly pleaded complaint.
(citing authority) The rule makes
the plaintiff the master of the
claim; he or she may avoid federal
jurisdiction by exclusive reliance
on state law."
Again the court in Caterpillar at 2430 states:
"Caterpillar assets that respond-
ents' state-law contract claims
are in reality completely
pre-empted Section 301 claims,
which therefore arise under fed-
eral law. We disagree. Section
301 governs claims founded
directly on rights created by col- é
lective-bargaining agreements, and :
also claims "substantially gaining ;
dependent on analysis of a collec- 4
tive bargaining agreement." (Cit-
ing authorities). Respondents :
alleged that Caterpillar had ent- f
ered in and breached individual j
employment contracts with then.
4
-62-
Section 301 says nothing about the
content or validity of individual
employment contracts. It is true
that respondents, bargaining unit
members at the time of the plant
closing, possessed substantial
rights under the collective agree-
ment, and could have brought suit
under Section 301. As masters of
the complaint, however, they chose
not to do so.
The court goes on to hold that the Respondents
Claims do not arise under federal law and there-
fore may not be removed to federal court. The
court also points out that the defendants can not
interject a federal question into an action in
order to raise a federal issue and defeat plain-
tiffs state court actions. (Caterpillar at 2433).
THE DEFENDANTS ALLEGED IN THE DISTRICT COURT
THAT SIEU MEI TU'S EMPLOYER WAS A CARRIER FOR
PURPOSES OF REMAND TO THE FEDERAL COURT FROM THE
STATE COURT, AND ARGUED IN THE DISTRICT COURT
AND NINTH CIRCUIT COURT OF APPEAL THAT PLAIN-
TIFFS EXCLUSIVE REMEDY ON HER CONSPIRACY CLAIM
WAS BEFORE THE ICC, BECAUSE HER EMPLOYER WAS A
CARRIER, AND THEN ARGUED BEFORE THE ICC THAT
PLAINTIFF SIEU MEI TU HAD NO RIGHT TO LITIGATE
ANY ASPECT OF HER TERMINATION BEFORE THE ICC
BECAUSE HER EMPLOYER WAS NOT A CARRIER. THIS
RESULTED IN A GROSS MISCARRIAGE OF JUSTICE.
These inconsistent and incorrect arguments of
counsel as set out above are attached as excerpts
in the appendix to this petition. As officers of
the court, the attorneys for the employers have
-63-
misused their privilege and caused a gross miscar-
riage of justice to occur, denying Plaintiff her
right to a jury trial and full discovery. This
conduct attacks the integrity of the judicial pro-
cess and militates the supervision of this Court.
CONCLUSION
For the foregoing reasons, the petitioner
respectfully prays that its petition for a writ of
certiorari be granted.
Respectfully submitted,
titioners
Mei Tu and Joseph Z. Tu
60485
Sunnyvale, California 94086
(415) 691-9331
Dated: December 21, 1992
-64-
(k) APPENDIX
TABLE OF CONTENTS
Memorandum, Ninth Circuit Court of Appeals
Filed June l, 1992 67
Order Ninth Circuit Court of Appeals
Filed September 22, 1992 an4
United States District Court
Northern District of California
Order Denying Motion to Remand
Filed October 9, 1987 112
Order filed April 6, 1988 114
Order filed June 30, 1988 117
Order Granting Defendants' Motions for
Summary Judgment and Denying Defen-
dants' Motion to Disqualify
Filed February 6, 1989 126
Judgment filed February 6, 1989 142
Order filed May 3, 1989 143
Order Granting Defendant's Motion for
Summary Judgment filed August 14, 1989
151
Judgment filed August 14, 1989 165
Interstate Commerce Commission
Decision June 12, 1992 169
Decision December 3. 1992 166
RLA Arbitration 180
Opinion and Award (Transfer of work-
separation allowance) Dated November 30, 1987
180
-65-
Docket United States District Court Northern
District of California Docket 87-1198
1 8 9
Constitutional Provisions, Treaties, Statutes,
Rules and Regulations 209
-66-
FILED
JUN 1 1992
CATHY A CATTERSON, CLERK
U.S. COURT OF APPEALS
NOT FOR PUBLICATION
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIEU MEI TU and JOSEPH Z. TU,
Plaintiffs/appellants/
Cross-appellees,
CA Nos. 89-16186, 89-16292
V. DC No. CV-&7-1198-DLJ
SOUTHERN PACIFIC TRANSPORTATION CO.,) PACIFIC
FRUIT EXPRESS CO., ATCHISON;) TOPEKA, SANTA FE
RAILROAD CO., SANTA FE SOUTHERN PACIFIC CORP.,
and BROTHERHOOD OF RAILWAY,AIRLINE, AND STEAM-
SHIP CLERKS,
MEMORANDUM
Defendants/appellees/ Cross-appellants.
Appeal from the United States District Court for
the Northern District of California
-67-
D. Lowell Jensen, District Judge, Presiding ©
Argued and Submitted September 12, 1991
San Francisco, California
BEFORE: CANBY and KOZINSKI, Circuit Judges, and
CARROLL**, District Judge
*This disposition is not appropriate for publica-—
tion and may not be cited to or by the courts of
this circuit except as provided by 9th Cir. R.
36-3. **The Honorable Earl H. Carroll, United
States District Judge for the District of Arizona,
sitting by designation.
OVERVIEW
Plaintiffs Sieu Mei Tu and Joseph Z. Tu, her hus-
band, appeal from the District Court's orders
denying plaintiffs' motion to remand, and granting
defendants' motions to dismiss and motions for
summary judgment. Defendant Brotherhood of Rail-
way, Airline and Steamship Clerks cross appeals.
FACTUAL BACKGROUND
In May, 1962, Sieu Mei Tu ("Tu" or "plaintiff"), a
woman of Chinese Ancestry who is now 64 years old,
began working in various clerical positions for
-68-
Pacific Fruit Express Company ("PFE"), a wholly-
owned subsidiary of Southern Pacific Transporta-
tion Company ("SP"). Plaintiff was a member of the
Brotherhood of Railway, Airline and Steamship
Clerks ("Union").1 When PFE merged with SP in
1985, the plaintiff was furloughed from her posi-
tion. The Union filed a grievance on August 15,
1985, alleging that the collective bargaining
agreement prohibited the company from laying off
plaintiff and seven other clerical workers without
payment of certain sums. On November 30, 1987, the
arbitrator held against the Union, holding that
the employer had a right under the collective bar-
gaining agreement to lay off the clerks due to the
decline in business experienced by PFE.
Before the case went to arbitration, the plaintiff
filed a charge of discrimination tiff filed a
charge of discrimination with the California
Department of Fair
Effective September 1, 1987, the Union changed its
name to Transportation Communications _Interna-
tional Union.
Employment and Housing ("DFEH"), alleging discri-
-69-
mination on the basis of race, sex or age. Pur-
suant to her right-to-sue letter from DFEH, plain-
tiff filed a lawsuit on September 26, 1986, in the
San Francisco County Superior Court against PFE,
SP, the Atchison, Topeka, Santa Fe Railroad Com-
pany ("ATSF"), Santa Fe Southern Pacific Corp.
("SFSP"), various individuals, and Doe corpora-
tions. The plaintiff's complaint alleged two
counts of wrongful termination, violation of good
faith and fair dealing, violations of 42 U.S.C. SS
1981, 1983, 1985, California Code S 12900, et.
seq., and California Public-Utilities Code Ss
453(a), conspiracy, and loss of consortium. The
action was removed to the United States District
Court for the Northern District of California on
March 20, 1987. The plaintiff moved to remand the
action to state court, which was denied
-70-
denied by the Honorable D. Lowell Jensen on
October 13, 1987. The District Court ruled that
federal jurisdiction existed due to the plain-
tiff's membership in a union whose conditions of
employment were governed by a collective bar-
gaining agreement negotiated pursuant to the
Railway Labor Act ("RLA"). 45 U.S.C. S 151, et.
seq.
Defendants SP and PFE thereafter moved to dis-
miss the complaint. On April 6, 1988, the Dis-
trict Court did so, agreeing with the defendants
that the wrongful termination claims and breach
of good faith and fair dealing claim were "minor
isputes"
2 As only the consortium claim involves plain-
tiff Joseph Tu, the singular "plaintiff", will
be used throughout this disposition.
within the meaning of the RLA and must thus be
referred to the National Railroad Adjustment
Board ("NRAB") for mandatory arbitration. The
Court declined to exercise pendent jurisdiction
over the state discrimination claims and consor-
“al ae eae eS) Pi ee Oe
tium claim.3 The plaintiff was given leave to
amend the complaint within 30 days in order to
-7i-
state a federal claim.
The plaintiff filed her First Amended Complaint on
may 2, 1988, again alleging wrongful termination,
breach of good faith and fair dealing, violations
of 42 U.S.C. SS 1981, 1983, 1985, California Gov-
ernment Code S 12900, et. seq., and California
Public Utilities Code S 453(a), conspiracy, and
loss of consortium. The plaintiff added a claim
against the Union for breach of fair representa-
tion. On July 1, 1988, upon motion by defendants,
the District Court dismissed defendant ATSF and
SFSP pursuant to Fed.R.Civ.P. Rule 4(j), for
plaintiff's failure to timely serve. Further, the
District Court again dismissed Counts 1 - 3
alleging wrongful termination and breach of good
faith and fair dealing, and Count 7 for inten-
tional infliction of emotional distress, as "mi-
nor disputes" subject to mandatory arbitration.
The Court further dismissed Count 5, alleging
conspiracy of all defendants to merge SP with
ATSF and cease operations of PFE in order to
avoid their contractual responsibilities to
-72-
plaintiff, holding that the ICC was the proper
forum for the initial determination of viola-
tions
3 The District Court did not address the claims
for violations of 42 U.S.C. SS 1981, 1983 and
1985, or the conspiracy count.
of 49 U.S.C. S 11347. Finally, the Court dismissed
the claim against the Union for failing to file
within the applicable statute of limitations. Two
counts remained: the District Court exercised
pendent jurisdiction over plaintiff's claim for
discrimination and plaintiff Joseph Tu's claim for
loss of consortium against defendants SP and PFE;
the Court construed the claims as state claims for
discrimination.4 On January 5, 1989, defendants
PFE and SP filed a motion for summary judgment
which was granted on February 6, 1989. The Court
held that although the plaintiff had established a
orina-facie case of employment discrimination, the
defendants had introduced substantial proof of a
nondiscriminatory, legitimate reason for her fur-
lough, that is, that PFE had experienced economic
decline and the plaintiff's position was not
needed at SP when PFE'S business was transferred
to the parent company. Further, the plaintiff had
-73-
not introduced sufficient evidence to satisfy her
burden of showing that the defendants, asserted
nondiscriminatory reason was pretextual. Because
Joseph Tu's claim for loss of consortium was
wholly reliant on the success of plaintiff Sieu
Tu's claims, that claim was dismissed. Judgment
was entered on February 8, 1989. The plaintiff
thereafter moved for reconsideration. On May 5,
1989, the Court denied the motion for reconsidera-
tion
4The District Court did not explain why it did
not address the claims under 42 U.S.C. SS 1981,
1983, and 1985, although the plaintiff does not
challenge this decision, presumably because the
plaintiff seeks to remand the action.
regarding summary judgment to defendants SP and
PFE, but granted the motion for reconsideration
as to the Union. The Union appeals this ruling.
The plaintiff filed a Second Amended Complaint
on June 2, 1969, again alleging wrongful termi-
nation, breach of good faith and fair dealing,
violations of 42 U.S.C. SS 1981, 1983, 1985,
California Government Code S 12900, et. seq.,
and California Public Utilities Code S 453(a),
conspiracy, loss of consortium, and breach of
-74-
fair representation by the Union. The Union
responded to the second Amended complaint by
filing a motion for summary judgment. The Dis-
trict Court granted that motion on August 14,
1989, holding that the plaintiff had made no
evidentiary showing that the Union's actions
were discriminatory or taken in bad faith. The
Court also dismissed the individual union offi-
cials, which is not challenged by the plaintiff
o.6€°”nn a p peai@il =.
Plaintiff appeals the denial of her motion to
remand to state court, the dismissal of defen-
dants ATSF and SFSP for plaintiff's failure to
timely serve under Fed.R.Civ.P., Rule 4(j), the
dismissal of plaintiff's claims of conspiracy
and intentional infliction of emotional dis-
tress, the denial of her request for more time
for discovery, and the granting of summary
judgment in favor of defendants SP; PFE and the
Union.
The Union appeals the District Court's finding
that the statute of limitations for plaintiff's
breach of fair representation claim had not
-75-
lapsed.
DISCUSSION
(1) Denial Of Plaintiff's motion to remand
The denial of a motion to remand to state court
is reviewed de novo. Chmiel v. Beverly Wilshire
Hotel Co., 873 F.2d 1283, 1285 (9th Cir. 1989).
Under the well-pleaded complaint rule, federal
jurisdiction exists only if a federal question
is presented on the face of a complaint. Cater-
pillar. Inc. v. Williams, 482 U.S. 386, 107
S.Ct. 2425, 2428, 96 L.ed.2d 318 (1987). A case
may not be removed based on a defense unless an
area of state law has been completely preempted,
-75A-
-76=
and the claim is therefore considered as arising
under federal law. Franchise Tax Bd. of Cal. v.
Construction Laborers Vacation Trust, 463 U.S.
1, 24, 103 8.Ct. 2841, 2853, 77 L.ed.2a 420
(1983). Plaintiff first argues that all causes
of action were pled under state law and that the
District Court erred in failing to remand the
suit. In point of fact, Count 4 of the original
complaint alleges violations of 42 U.S.C. SS
1981, 1983 and 1985. The District Court denied
the plaintiff's motion to remand, holding that
the state law claims constituted "minor dis-
putes" under the RLA, 45 U.S.C. S 151, et sea.
If plaintiff's claims are characterized as
"minor disputes" within the meaning of the RLA,
state law is preempted and her exclusive remedy
is under the RLA. Andrews v. Louisville &
N.R.CO., 406 U.S. 320, 92 S.Ct. 1562, 32 L.ed.2d
95 (1972). If the defendants, actions are "“argu-
ably" governed by the collective bargaining
agreement or have a "not obviously insubstan-
tial" relationship to the contract, the dispute
is "minor" and governed by the RLA. Magnuson v.
-76-
Burlington Northern, Inc., 576 P.2d 13671
1369-70 (9th Cir.), cert. denied 439 U.S. 930;
99 §.Ct. 318, 58 L.ed.2d 323 (1978). Alterna-
tively, "minor" disputes involve the "“interpre-
tation or application of collective bargaining
agreements".1 Edelman v. Western Airlines,
Inc., 892 F.2d 8391 843 (9th Cir. 1989). The
plaintiff argues that reference to the collec-
tive bargaining agreement is unnecessary, and
that the action-can therefore be decided under
state law. Plaintiff contends that she and her
employer have a “common law agreement" arising
out of a letter written on December 18, 19781 by
plaintiff's employer in order to assist Mrs. Tu
in her father's immigration to the United
States. The letter states:
Mrs. Tu was employed by this com-
pany on may 31, 1962 and has
worked continuously for us from
that date. Her position with this
company is not only permanent in
nature but she also is, under our
contract with the Brotherhood of
Railway, Airline a Steamship
Clerks, "fully protected" sc that
in the unlikely event we were not
to have a job for her, she would
continue to be paid under that
contract until she reaches age 65
and can retire under the provi-
a ee
sions of Railroad Retirement Act
and receive the appropriate pen-
sion therefrom... She is, and has
always been, a valued employee and
even if her present position were
to be eliminated, we would find
some other position for her to
hold as we would not want to lose
her services.
The letter on which plaintiff bases her claims
refers to the collective bargaining agreement as
the source by which the plaintiff is "fully pro-
tected". Further, plaintiff's complaint-
alleges that certain promises were implied lby
said defendant's contract with plaintiff's bar-
gaining agent., and that plaintiff is la benefi-
ciary of contract of employment entered into
between defendant PFE and defendant [Union]}.,
Reference to the collective bargaining agreement
in the complaint and reliance on the contract
through the grievance process brings the com-
plaint within federal preemption. Newberry v.
Pacific Racing Ass'n, 854 F.2d 1142, 1147 (9th
Cir. 1988).5
While plaintiff cites Caterpillar, Inc., supra,
for the contention that remand is required where
an employee alleges breach of an individual
-78-
employment contract, in Caterpillar the
employees relied on contracts made while they
were salaried employees not covered by a collec-
tive bargaining agreement. Here, the plaintiff
was covered by the collective bargaining agree-
ment at all relevant times. In addition, "any
independent agreement of employment could be
effective only as part of the collective bar-
gaining agreement." Stallcop v. Kaiser Founda-~
tion Hospitals, 820 F.2d 1044; 1048 (9th Cir.
1987). citing Olgguin v. Inspiration Consol. Cop-
per Co., 740 F.2d 1468, 1474 (9th Cir. 1984).
Thus, plaintiff's claims are "arguably", governed
by the collective bargaining agreement and have a
"not obviously insubstantial"
5In Lingle v. Norge Division of Magic Chef,
Inc., 486 U.S. 399, 108 S.Ct. 1877, 1885, 100
L.ed.2d 410 (1988), the Supreme Court held that
state law is preempted by S 301 of the Labor
Management Relations Act of 1947 “only if such
application requires the interpretation of a
collective-bargaining agreement.1 The Court in
Newberry, 854 F.2d at 1147, determined that
reference to the collective bargaining agreement
in the complaint and reliance on the grievance
process required interpretation of the collec-
tive bargaining agreement.
relationship to the contract. The plaintiff also
argues that under 28 U.S.C. S 1445(a), all civil
-79-
actions against a railroad arising under the
Federal Employer's Liability Act ("FELA"), 45
U.S.C. ss 51-60, are not removable. However, the
plaintiff has not alleged a claim under FELA.
The District Court properly denied the plain-
tiff's motion to remand, and this Court has
jurisdiction pursuant to 45 U.S.C. S 151, et seq
(2) Dismissal of defendants ATSF and SFSP for
Plaintiff's failure to timely serve under
Fed.R.Civ.P., Rule 4(3)
This Court reviews a dismissal of a complaint
pursuant to Rule 4(j) for abuse of discretion.
Wei v. State of Hawaii, 763 F.2d 370 (9th Cir.
1985).
On July 1, 1988; the District Court dismissed
defendants ATSF and SFSP for plaintiff's failure
to serve the defendants within 120 days, finding
that plaintiff had not demonstrated good cause
for her failure to do so.
Plaintiff first argues that the District Court in
fact gave her an extension of time to serve defen-
dants ATSF and SFSP, based on the following collo-
quy during the hearing on the motion to remand:
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THE COURT: I think we also ought to sche-
dule a status conference on this
matter for about 60 days. Could
you give us a date in November?
MR. KUBBY [plaintiff's counsel}:
Your honor, if it's going to be
necessary to serve all of the
other defendants, I wonder if 60
days ...
THE COURT: Maybe we'll give you
some more time than that. There
isn't any real reason to have it
earlier. Let's put it on December
16th. That will be at 9:00 o'clock
and we'll review where we are at
that time. In the meantime you can
discuss this issue among your-
selves.
This language -- ambiguous at best -- does not
clearly indicate that the District Court
extended the time for service. Further, the
plaintiff did not raise this issue before the
District Court, and Rule 46 of the Federal Rules
of Civil Procedure provides that a party Ishould
make{] known to the court the action which the
party desires the court to take or the party's
objection to the action of the court and the
grounds therefor... I The limited exceptions to
the general rule that failure to raise an issue
in the trial court will prevent review include,
-81-
(1) when review is necessary to prevent a mis-
carriage of justice or to preserve the integrity
of the judicial process, (2) when a change in
law raises a new issue while an appeal is pend-
ing, and (3) when the issue is purely one of
law. Javanovich v. United States, 813 F.2d 1035,
1037 (9th Cir. 1987). citing Bolker v. Commis-
sioner of Internal Revenue, 760 P.2d 1039, 1042
(9th Cir. 1985). Plaintiff does not argue the
applicability of these exceptions, and none of
these factors militates in favor of their appli-
cation. Plaintiff cannot therefore argue on
appeal that the District Court extended the time
period for service.
Next, plaintiff argues that she showed good cause
for her failure to serve defendants. Plaintiff has
the burden of showing good cause. Geiger v. Allen,
850 F.2d 330 (7th Cir. 1988); Townsel v. Contra
Costa County, CA, 820 F.2d 319, 320 (9th Cir.
First, plaintiff contends that she purposefully
did not serve ATSF and SFSP due to defendant SP's
request that plaintiff delay service on those
=-82-
defendants in order to facilitate settlement.
However, plaintiff cites nothing in the record to
support this contention.6 Second, plaintiff argues
that she had good cause to believe that the case
would be remanded to the California state court,
where three years is allowed for service. However,
given that plaintiff's complaint alleged viola-
tions of federal statutes, including 42 U.S.C. SS
1981, 1983, and 1985, and explicitly referred to
plaintiff's "bargaining agent" thus implicating
the collective bargaining agreement, plaintiff's
belief that the case would be remanded was unrea-
sonable, and not good cause for failure to serve
the remaining defendants in the case.
The plaintiff also argues that the District
Court's dismissal of defendants ATSF and SFSP only
applied to the original complaint, as the first
amended complaint had been served by the date of
the dismissal. However, this argument was raised
in plaintiff's reply brief, and an appellant "can-
not raise a new issue for the first time in {her}
reply brief." Eberle v. City of Anaheim, 901 F.2d
814, 818 (9th Cir. 1988). Moreover, the
-83-
6Plaintiff cites Kraus v. Santa Fe Southern
Pacific Corp., 878 F.2d 1193 (9th Cir. 1989),
for the contention that SP's request not to
serve ATSF and SFSP was in fact the request of
ATSF and Santa Fe. In Kraus, this Court had
recited evidence introduced at trial that all
non-rail operations between SFSP and SP had been
merged. However, plaintiff cites no authority
for her argument that SP's request not to serve
the other defendants should be attributed to the
other defendants.
District Court's order dismissed the first
amended complaint. Plaintiff also contends that
the District Court erred by dismissing the sec-
ond amended complaint, contending that the fil-
ing of the second amended complaint brought all
defendants who had been previously dismissed
back into the lawsuit. The plaintiff argues,
"All parties who have appeared in an action
remain in the action until a final judgment is.
rendered."
However, a final judgment was rendered on February
6, 1989, before the second amended complaint was
filed on June 2, 1989.
Next, the plaintiff argues that Rule 4(j) is not
applicable in removed cases, and that Rule 81(c)
applies instead.7 Again, this argument was
raised in plaintiff's reply brief, and issues
-84-
raised for the first time in appellant's reply
brief need not be considered. Eberle, 901 F.2d
at 818 (9th Cir. 1988).
Finally, plaintiff argues that the defendants ATSF
and SFSP waived the Rule 4(j) objection by answer-
ing without raising objections to untimely pro-
cess. Here again, plaintiff raised this issue for
the first time in her reply brief. Eberle, 901
F.2d at 818 (9th Cir. 1988).
The District Court's dismissal of ATSF and SFSP
was not an abuse of discretion.
7Rule 81(c) states, in relevant part: In a
removed action in which the defendant has not
answered, the defendant shall answer or present
the other defenses or objections available under
these rules within 20 days after the receipt
through service or otherwise of a copy of the
initial pleading setting forth the claim for
relief upon which the action or proceeding is
based, or within 20 days after the service of
summons upon such initial pleading, then filed,
or within 5 days after the filing of the peti-
tion for removal, whichever period is longest.
-85-
On appeal, defendants ATSF and SFSP have
requested an award of sanctions against plain-
tiffs and their counsel pursuant to Rule 38,
Fed.R.Civ.P. Rule 11, and 28 U.S.C. SS 1912 and
1927. This Court declines to do so.
(3) Dismissal of conspiracy claim This Court
reviews de novo the dismissal of a complaint for
failure to state a claim. Gobel v. Maricora
County, 867 P.2d 1201, 1203 (9th Cir. 1989).
Dismissal under Fed.R.Civ.P. 12(b)(6) is not
appropriate "unless it appears beyond a doubt
that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief".1 Conley v. Gibson, 355 U.S. 41, 45-46
78 S.Ct. 99, 2 L.ed.2d 80 (1957).
In Count 5 of the original and first amended
complaint, plaintiff alleged that all defendants
conspired to merge defendant SP into defendant
ATSF, cease operations of PFE, and terminate
plaintiff in order to avoid their "contractual
and moral responsibilities" to plaintiff. On
July 1, 1988, the District Court dismissed this
count in the first amended complaint as to all
-86-
defendants. The Court ruled, ta. pert:
Insofar as a private cause of
action might exist for
termination due to the aborted
merger, this Court concludes that
it is not the proper forum for an
initial determination of any
claimed violation of 49
U.S.C. S 11347, which provides for
employee protection in any rail
carrier merger. See, Walsh v.
United States, 723 F.2d 570 (7th
Cir. 1983), Engelhardt v. Consoli-
dated Rail Corp., 594 F.Supp.
1157, 1164 (N.ON.Y¥. 1984).
When plaintiff filed her second amended com-
plaint on June 2, 1989, she alleged a violation
of 49 U.S.C. S 11705, stating that the Inter-
state Commerce Commission (ICC) had terminated
its proceedings and allowed SP employees to pur-
sue civil remedies. Plaintiff challenges the
dismissal of the second amended complaint.
Defendant SFSP is a holding company formed in
contemplation of the proposed merger. The hold-
ing companies of SP and ATSF had merged when
defendant SFSP acquired the stock of SP in
December of 1983 in an independent voting trust.
When the ICC denied the proposed merger on
October 10, 1986, SFSP was required to divest
its interest in either SP or ATSP, and sold the
-87-
stock of SP to Rio Grande Industries. The voting
trust was dissolved on October 13; 1988 when
that acquisition was approved.
On February 9, 1989, the ICC concluded that it
could not provide protection for those employees
harmed by any actions taken in anticipation of
the merger:
[Wje do not have the authority to
impose labor protection as a con-
dition of our action disapproving
a merger proposal. Section 11347
speaks in terms of approved trans-
actions....
kkk
If any actions adverse to
employees are shown to have been
ordered by [SFSP] in anticipation
of consolidation and in violation
of the provision of 49 U.S.C. 5
11343, which prohibits common con-
trol absent Commission approval,
the adversely affected individuals
have a remedy as provided by 49
U.S.C. S 11705. [SP] employees who
believe they were harmed by
actions take in anticipation of
the proposed [SP]-ATSF consolida-
tion would be required to show,, in
addition to causation, that [SFSP]
exercised unlawful control of
[SP], in violation of the Act or
the conditions in our approval of
[SFSP'S] voting trust for [SP]
stock. Persons injured by a carr-
ier violating the Act or an order
of the Commission may file suit,
and the carrier is liable for the
damages sustained as a result of
those violations. 49 U.S.C. §&
-88-
11705. We do not think that the
essentially factual matters that
would be in issue in a civil pro-
ceeding are such that would
require the exercise of adminis-
trative expertise, so as to invoke
the doctrine of primary jurisdic-
tion. [Citations omitted].
However, this Court has held that there is no
private right of action pursuant to 49 U.S.C. S&S
11705 due to the exclusive jurisdiction of the
Icc. In Kraus v. Santa Fe Southern Pacific
Corp., 878 F.2d 1193 (9th Cir. 1989), plaintiffs
had brought suit against SP, SFSP, and ATSP,
stemming from plaintiffs, allegations that ATSF
had induced SP to terminate plaintiffs in order
to avoid post-merger liabilities which may have
been imposed by the Icc. Plaintiffs alleged
state law claims of tortious interference with
economic relations' and a federal claim
pursuant to 49 U.S.C. S 11343 for unauthorized
merger or acquisition of control by ATSF over
SP. This Court held:
Neither 49 U.S.C. S 11343(a),
however, nor any other provision
of the subchapter governing combi-
nations of carriers, provides for
any remedy by way of a private
civil damage action for violation
of its provisions ... The juris-
-89-
dictional provision upon which
plaintiffs attempt to rely is con-
tained in a separate statutory
subchapter relating to the enfor-
cement of interstate commerce laws
and regulations. The precise pro-
vision relied upon is 49 U.S.C. S
11705(b) (2). which states that a
carrier is “liable for damages
sustained by a person as a result
of an act or omission of that car-
rier in violation of [the ICA]8
-»- [T]he subchapter of the ICA
relating to mergers specifically
provides that "the authority of
the Interstate Commerce Commission
under this subchapter is exclu-
sive." 49 U.S.C. S 11341. Under
es
8The plaintiffs, recovery on this
count was upheld.
grant of authority over mergers,
the ICC, and not the courts, has
been given authority to define
what constitutes an unauthorized
merger or acquisition of control
within the meaning of the statute.
* * *
We agree with [ATSF] that the pro-
vision upon which plaintiffs rely,
49 U.S.C. S 11705(b)(2) & (c)(1),
authorizes court enforcement for
violations of the merger provi-
sions only after the ICC has con-
sidered whether the alleged viola-
tions have occurred.
Kraus, 878 F.2d at 1197 - 1198. There has been
no finding of a violation by the Icc in this
case. Further, this Court specifically rejected
the contention that the February 9. 1989
IccC decision, quoted above, conferred a private
-90-
right of action. Kraus, 878 F.2d at 1198, n. 2.
Thus, the District Court here properly dismissed
Count 5 as to all defendants.
The defendants also argue that plaintiff's claim
of conspiracy is preempted by the RLA as a "mi-
nor dispute". Because this Court has clearly
held that there is no private right of action
pursuant to S 11705; it is unnecessary to reach
this issue.
(4) Dismissal of plaintiff's claim for inten-
tional infliction of emotional distress
The dismissal of a claim is reviewed de novo.
Gobel, 867 F.2d at 1203.
On July 1. 1988, the District Court dismissed
Count 7 of plaintiff's complaint alleging inten-
tional infliction of emotional distress. The
Court correctly held that claims for emotional
distress arising from termination are subject to
mandatory arbitration under the RLA. a 799
F.2d at 1290 ("We have consistently held that
the RLA preempts state tort claims by employees
against railroads for wrongful discharge or for
intentional infliction of e2motional distress,
-9l1l-
where the alleged tortious activity is “argu-
ably" governed by the collective bargaining
agreement or has a "not obviously insubstantial"
relationship to the labor contract, and where
the "gravamen of the complaint is wrongful dis-
charge"); Stallcop, 820 F.2d at 1049, citing
Carter v. Smith Food King, 765 F.2d 916, 921
(9th Cir. 1985); Olguin, 740 F.2d at 1475-76;
Tellez v. Pacific Gas & Electric, 817 F.2d 536#
539 (9th Cir. 1987) (actions for intentional and
negligent infliction of emotional distress not
preempted since they arose from conduct not cov-
ered by the collective bargaining agreement) ;
Magnuson v. Burlington Northern. Inc., 576 F.2d
at 1367.
(5) Denial of Plaintiff's request for addi-
ticnal discovery time
The plaintiff next claims that the District
Court was in error by failing to allow more time
for discovery. This Court reviews a denial of
discovery for abuse of discretion. Brae Transp.,
Inc. v. Coopers & Lybrand, 790 F.2d 1439; 1442
(9th Cir. 1986), citing Foster v. Arcata Associ-
-92-
‘ates, Inc., 772 F.2d 1453, 1467 (9th Cir. 1985).
cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89
L.ed.2d 576 (1986).
Pursuant to Fed.R.Civ.P. Rule 56(f), a court may
refuse an application for summary judgment or
may continue a matter for further discovery if a
party opposing a motion "cannot for reasons
stated present by affidavit facts essential to
justify the party's opposition." Plaintiff's
counsel submitted an affidavit in opposition to
the motions for summary judgment in which he
averred that he had been unable to resolve dis-
covery disputes with the defendants. He stated
that the union cancelled the depositions of two
union officials, and the continuance of the
depositions was granted by a magistrate; the
date then set for the deposition was cancelled
due to plaintiff's counsel's trial schedule, and
the union had not been cooperative in resetting
the date. .
The Union provided the declaration of Kathleen
S. King, counsel for the Union, in reply to the
plaintiff's opposition to summary judgment,
-93-
stating that the Union had cooperated with all
discovery requests; further, the Union had been
willing to produce Union officials for deposi-
tion but plaintiff's counsel did not attempt to
reschedule until the date on which defendants
filed motions for summary judgment. Plain-
tiff's counsel also did not take the deposition
of either Tom Ellen or Rick Fend, PFE officials
whom plaintiff claims were instrumental in the
discriminatory actions.
At the hearing on February 2, 1989, plaintiff's
counsel asked the District Court for more time
to take the depositions of
the Union officials. The Court took the matter
under advisement, and in the February 6, 1989
order, the Court held that the plaintiff had had
ample time for discovery.
Given the plaintiff's dilatory efforts at dis-
covery and because the plaintiff has not indi-
cated what facts this discovery was expected to
show, Volk v. D.A. Lavidson a Co., 816 F.2d
1406, 1416 (9th Cir. 1987), the District Court
did not abuse its discretion in denying the
-94-
request for further discovery.
(6) Defendants SP's and PFE'S motion for summary
judgment
-On February 6, 1989, the District Court granted
defendants SP's and PFE'S motion for summary
judgment on Count 4 and Count 6.
This Court reviews the District Court's grant of
summary judgment de nove. Miller v. Fairchild
Industries, Inc., 797 F.2d 727 (9th Cir. 1986),
appeal after remand, 876 F.2d 718, opinion
amended, 885 F.2d 498 (1989), cert. denied
U.S. 110 S.ct. 1524, 108 L.ed.2d 764
(1990). This Court must determine whether there
are any genuine issues of material fact, viewing
the evidence in the light most favorable to the
moving earty, and whether the District Court
correctly applied the law. Ashton v.Cory, 780 F.
2d 816, 818 (9th Cir. 1986).
To establish a prima facie discrimination clain,
plaintiff must show that she is (1) a member of
a protected group; (2) her job performance was
satisfactory; (3) she was discharged from her
position; and (4) others not in the protected
-95-
class were retained by defendants. McDonald v.
Santa Fe Trail Transportation@o., 427 U.S. 273,
96 S.Ct. 2574, 49 L.ed.2d 493 (1976). The burden
then shifts to the defendants to articulate a
legitimate nondiscriminatory reason for the
action. If that burden is sustained, the burden
then shifts back to the plaintiff to establish.
pretext by showing either that a discriminatory
reason more likely than not motivated the
employer or that the employer's explanation is
unworthy of credence. Perez v. Curcio, 841 F.2d
255, 257 (9th Cir. 1988). citing Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 2481 256,
101 S.Ct. 1089, 1095, 67 L.ed.2d 207 (1981).
The District Court held that the plaintiff had
established a prima facie case of discrimina-
tion, finding that plaintiff is a member of
three protected groups, her job performance was
Satisfactory since several of her superiors
rated her work as exceptional, she was dis-
charged, and other employees who-were not Asian,
or over 40 were transferred to positions at SP
that the plaintiff was qualified to perform.
-96-
Defendants challenge the District Court's find-
ing that the plaintiff was eligible for tran-
sfer, but our disposition makes it unnecessary
for us to rule on that point.
Second, the Court held that the defendants had
rebutted the presumption of discrimination. The
Court found that the defendants had offered
"substantial" proof supporting their contention
that Sieu Mei was furloughed for economic rea-
sons. PFE had experienced a severe decline in
business due to increased competition from the
trucking industry prior to the 1985 merger., The
Court further pointed out that other employees
who were not members of a protected class were
also not transferred to SP.
The District Court then found that the plaintiff
had not presented evidence which raised a
genuine issue of fact challenging defendants'
explanation of plaintiff's termination.
Plaintiff challenges the District Court's find-
ing that the defendants had demonstrated a non-
discriminatory reason for her termination.
First, she argues that the defendants are
-97-
estopped from arguing that her termination was
a result of PFE'S economic decline due _ to
representations contained in the alleged "common
law agreement". The December 18, 1978 letter
stated that plaintiff's position was permanent
and "fully protected" under the union contract
so that if the company did not have a job for
her, she would continue to be paid and gain
retirement benefits. She also argues that the
decline in business clause does not apply to her
due to the date at which she started working.
These arguments essentially restate the plain-
tiff's claim for wrongful termination. In order
to find that defendants were "estopped" from
asserting that plaintiff was fired due to eco-
nomic reasons, this Court would have to inter-
pret the collective bargaining agreement and
resolve the wrongful termination claims on the
merits. The plaintiff has not appealed the dis-
missal of the wrongful termination claims, and
they are in any event subject to mandatory arbi-
tration under the RLA.
Moreover, defendants submitted substantial evid-
-98-
ence to support their contention that PFE was
experiencing economic problems. Tom Ellen,
former General Manager of PFE, submitted a
declaration regarding his knowledge of the eco-
nomic pressures created by deregulation, compe-
tition from the trucking industry, and a large
wage increase awarded to the union. Under Cali-
fornia law, reduction of work force necessitated
by economic circumstances constitutes good cause
for dismissal. Gianaculas v. Trans World Air-
lines, Inc., 761 P.2d 1391 (9th Cir. 1985).
Richard Fend, Assistant Controller of PFE at the
time the company was absorbed by the parent com-
pany, submitted a declaration stating that he
was responsible for deciding which positions
would be transferred to SP, and made that deci-
Sion based on the job duties of a particular
position not the identity of the employee hold-
ing that position. He attached exhibits detail-
ing which of the 16 clerks at PFE were fur-
loughed and/or transferred to SP, which informa-
tion was obtained from the company personnel
files. Fifteen of the PFE clerks were over age
-99-
40; nine of these were transferred. Of the seven
female clerks, four were transferred. of the two
Asian clerks, one was transferred to SP. Fend
avers, ‘Ms. Tu was not transferred because, at
the time, she was performing miscellaneous or
general clerk functions almost all of which
ceased to exist after October 1, 1985.1 The
plaintiff did not depose either Ellen or Fend.
The District Court reasonably found that the
defendants had asserted legitimate, nondiscrimi-
natory reasons for plaintiff's termination.
The plaintiff also challenges the District
Court's finding that she did not present evid-
ence rebutting defendants, explanation. However,
little of plaintiff's evidence is admissible.
Plaintiff asserts in her 'Declaration in Opposi-
tion to Motion for Summary Judgement [sic]}',
that the work conditions were made intolerable
so that she would voluntarily leave and
that she was moved to positions that were
designed to be terminated so that she would not
receive job protection. These assertions have no
foundation and are not within her personal know-
-100=-
ledge. Plaintiff's allegations of sexual jokes
contain no citation to the record.
Plaintiff testified in her deposition regarding
friction with the management over expense
reports; i.e. the plaintiff's manager, Rick
Fend, was angry when she questioned his expense
reports. She also testified that Walsh told her
that she was fired because Rick Fend and Edna
Clark (whose role is unclear) did not like her
and that another supervisor stated that she had
trouble with Fend. This testimony is inadmiss-
ible hearsay and fails to relate to plaintiff's
claims of discrimination basea@ on sex, race, or
age. Defendants also argue that these discovery
materials were not presented to the trial court,
a fact which plaintiff does not contest. Daly-
murphy v. Winston, 837 F.2d 348, 351 (9th Cir.
1988) (the reviewing court will normally not
supplement the record on appeal with material
not considered by the trial court).
In her deposition plaintiff also testified to
derogatory remarks made about Chinese persons:
Mr. Walsh, one of her supervisors, once stated
“101°
that ‘pretty soon the Chinese would own San
Francisco.' Another time when the plaintiff had
trouble working a new phone system, Rick Fend
stated, 'You can't talk English. You can't even
push the button.' The plaintiff testified that
Fend made numerous remarks about Chinese,
although she could not remember other comments.
She also could not remember if any other employees
made racially derogatory remarks to her. In Stall-
cop, supra, the plaintiff cited her supervisor's
statement that she "did not know the English lan-
guage" as proof of discriminatory conduct. The
Court held, "derogatory ethnic statements, unless
excessive and opprobrious, are insufficient to
establish a case of national origin discrimina-
tion." Stallcop 820 F.2d at 1050-51. The dero-
gatory statements cited in this case are also not
excessive and opprobrious. Also, the defendants
assert that this deposition-material was not pres-
ented to the District Court.
Although plaintiff claims that PFE inten-
tionally caused its economic decline, her only
evidence is her declaration that she was told
~iGe°
not to answer the phone because PFE did not want
the business.
The District Court did not err by hold-
ing that plaintiff had failed to demonstrate the
existence of specific facts showing there is a
genuine factual issue that defendants, reason
for her termination was pretextual.
Plaintiff also claims that SP's failure
to rehire her is retaliatory discrimination for
bringing this lawsuit. This claim was not
alleged in either the initial compliant or the
first amended complaint2 the plaintiff does not
address the
9.Plaintiff argues that the retaliatory discri-
mination claim was explicitly alleged in the
second amended complaint; however, this com-
plaint was filed after the District Court
defendants, motion for summary judgment.
“103°
applicability of the exceptions to the general
rule against considering. issues for the first
time on appeal. Javanovich, 813 P.2d at 1037,
citing Bolker, 760 F.2d at 1042. Thus, this
issue will not be considered.
(7) Union's motion for summary judgment
Whether a union has breached its duty
of fair representation is a mixed question of
law and fact which this Court reviews de novo.
Galindo v. Stoody Co., 793 F.2d 1502; 1513 (9th
Cir. 1986). citing United States v. McConney,
728 F.2d 1195, 1204 (9th Cir.) (en banc), cert.
denied, 469 U.S: 824, 105 S.Ct. 101, 83 L.Ed.2d
46 (1984); see also Johnson v. United States
Postal Service, 756 fF .2¢ 731, 1465 (9th Cir.
1985) teivine de novo standard to "ultimate
findings"); but see Robesky v. Oantas Emipire
Airways Ltd. 573 F.2d 1082, 1091 (9th Cir.
1978) (suggesting issue is a question for the
trier of fact).
On August 14,, 1989, the Court granted
the defendant Union's motion for summary judg-
ment, holding that plaintiff had made no eviden-
-104-
tiary showing that the Union's actions were dis-
criminatory or in bad faith and that the Union
had adhered to established procedures for han-
dling grievances.
To establish a breach of fair represen-
tation, the plaintiff must show that the Union's
conduct was “arbitrary, discriminatory, or in
bad faith"1 Galindo, 793 F.2d at 1513, citing
Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903,
916, 17 L.ed.2d 842 (1967). Union decisions
regarding the handling of grievances are
afforded wide latitude, and "a union's conduct
may not be deemed arbitrary simply because of an
error in evaluating the merits of a grievance...
or in presenting the grievance at an arbitration
hearing."1 Galindo, 793 P.2d at 1515, citing Pet-
erson v. Kennedy, 771 F.2d 1244 (9th Cir. 1985),
cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90
L.ed.2d 187 (1986) (emphasis added by Galindo
author).
on
In Galindo, this Court found that the
Union representative's failure to bring up an
issue at arbitration reflected a judgmental
-105-
decision. Similarly here, the Union's failure to
address the plaintiff's individual considera-
tions -- her claims that she was exempt from the
decline in business clause of the collective
bargaining agreement and her claims of discrimi-
nation based on sex., race, and age -- reflect a
judgmental decision. As in Galindo, "this
representation was, at worst, negligent." Gal-
indo, 793 F.2d at 1515. Negligent conduct may
only be the basis of a fair representation claim
when "the individual interest at stake is strong
and the union's failure to perform a ministerial
act completely extinguishes the employee's right
to pursue his claim." Dutrisac v. Caterpillar
Tractor Co, 749 P.2d 1270, 1274 (9th Cir. 1983)
(emphasis added). The Union's conduct in ques-
tion here was not ministerial.
In order to recover for a breach of
fair representation, the plaintiff must also
establish the underlying grievance had merit.
Skillsky v. Lucky Stars, Inc., 893 F.2d 1088
(9th Cir. 1990). As discussed above, the plain-
tiff did not introduce evidence to support her
-106-
claim of discrimination. In addition, plaintiff
has not introduced specific evidence to support
her claim that the decline in business clause
did not apply to her. This Court has only the
language of the decline in business clause to
evaluate: "the provisions of this section will
not apply to Pacific Lines employees in the San
Francisco General Offices with seniority dates
of March 16, 1963 or earlier." On its face, this
applies only to certain [SP] employees of
Pacific Lines working in the San Francisco
office, whereas the plaintiff was an employee of
PFE working in Brisbane, California at the time
of the termination. Moreover, the plaintiff
introduced no evidence that there was a conflict
of interest by the Union which resulted in its
failure to effectively represent plaintiff.10
The District Court did not err in grant-
ing summary judgment to the Union.
(8) The cross-appeal
On February 6. 1989, the District Court
ruled that plaintiff's breach of fair represen-
-107=
tation claim against the defendant Union was
barred by the six month statute of limitations
in section 10(b) of the National Labor Relations
Act. The Court later reconsidered and reversed
its previous ruling that the plaintiff's claim
was barred, concluding that the limitations per-
iod did not begin to run until the plaintiff was
informed of the arbitrator's decision. The Union
cross-appeals this issue. However, since the
District Court properly granted
10. Plaintiff references only counsel's statements
Guring plaintiff's deposition and at hearing.
summary judgment to the Union on plaintiff's
breach of fair representation claim, it is not
necessary for this Court to decide the cross
appeal, and it will be dismissed as protective.
CONCLUSION
In summary, the District Court properly
denied the plaintiff's motion to remand since
her claims were arguably governed by the collec-
tive bargaining agreement and she alleged viola-
tions of 42 U.S.C. SS 1981, 1983, and 1985. Sec-
-108-
tions of 42 U.S.C. SS 1981, 1983, and 1985. Sec-
ond, the District Court properly dismissed
defendants ATSF and SFSP for plaintiff's failure
to timely serve under Fed.R.Civ.P. Rule 4(j).
The District Court also did not err in dismis-
sing Count 5, alleging conspiracy, since there
is no private right of action pursuant to 49
U.S.C. 5 11705. Further, the plaintiff's claim
for intentional infliction of emotional distress
was properly dismissed as a "minor dispute" sub-
ject to mandatory arbitration. The District
Court did not err in not allowing the plaintiff
more time for discovery, and properly granted
summary judgment to defendants SP and PFE.
Plaintiff failed to demonstrate the existence of
specific facto showing a genuine factual issue
that defendants, claims of economic decline were
pretextual.
In addition, this Court need not decide
the cross appeal because the District Court pro-
perly granted summary judgment to the Union on
plaintiff's breach of fair representation clain.
The cross appeal will therefore be dismissed as
-109-
protective.
Finally, this Court declines to award
defendants ATSF and SFSP an award of sanctions
against plaintiffs and their counsel.
APPEAL NO. 8939-16186 AFFIRMED; CROSS-APPEAL NO.
89-16292 DISMISSED. Costs in favor of appellees.
-1i190-
NOT FOR PUBLICATION IN THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
FILED
SEP. 2 2 92
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
SIEU MEI TU AND JOSEPH Z. TU,
PS SA2ASECigetercseeaei ianete,
V. CA No. 89 -16186
SOUTHERN PACIFIC TRANSPORTATION
COMPANY; ATCHISON, TOPEKA, SANTA
FE RAILROAD COMPANY ET AL., ORDER
Defendants-appellees.
BEFORE: CANBY AND KOZINSKI, CIRCUIT JUDGES and
CARROLL, ViSTRICT JUDGE.
The panel has reviewed the petition for rehear-
ing and suggestion for rehearing en banc, and
has determined that it is without merit.
Further, by his own admission, appellants!
lawyer knew of this court's memorandum disposi-
tion on June 26 and failed to file a motion to
recall the mandate in a timely fashion.
ORDERED motion to recall the mandate denied.
=i2i=
1 ROBERT S. BOGASON
SOUTHERN PACIFIC TRANSPORTATION
COMPANY Southern Pacific Bldg. , Room 837
3 One Market Plaza
San Francisco, CA 94105
4 Telephone: (415) 541-1786
5 PATRICK W. JORDAN
WAYNE M. BOLIO
6 MCLAUGHLIN AND IRVIN Filed Oct 9 1987
100 Pine Street, Suite 770
7 San Francisco, CA 94111-5109
8 Telephone: (415) 433-6330
9 Attorneys for Defendants
10
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
Ao
14 SIEU MEI TU AND JOSEPH TU, No. C87-1198-DLJ
Plaintiffs,
15 ORDER DENYING MOTION TO REMAND
16 v
17 SOUTHERN PACIFIC TRANSPORTATION COMPANY,
18 et al.
19 Defendants.
20
21 The matter, having come for hearing on
Plaintiffs' Motion to Remand, and the Court
having considered Plaintiffs' moving papers,
Defendants Pacific Fruit Express Company and
24 Southern Pacific Transportation Company's
opposing papers,
25 declarations of counsel, pleadings on file,
and oral argument,
26 hereby ORDERS as follows:
27 1. Plaintiffs' Motion to Remand is denied.
2. At all relevant times herein, Plaintiff
“Aie™
waS a member of a union whose terms and condi-
tions of employment were
3 governed by a collective bargaining agree-
ment negotiated
4 pursuant to the Railway Labor Act. Any
claim that an indi-
5 vidual has been wrongly terminated or
transferred implicates
6 the collective bargaining agreement and
thus raises a federal
7 question.
8 Good cause appearing, it is hereby ordered
that the
9 Motion to Remand is denied.
10 D. LOWE11 JENSEN
11 DATED: Oct 9, 1987.
The Hon. D. Lowell Jensen
Judge of the United States District Court
at © © he
1 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SIEU MEI TU AND JOSEPH Z. TU
4 Plaintiffs, FILED
5 APRIL 6, 1988
6. V. C 87 1198 DLJ
7 SOUTHERN PACIFIC TRANSPORTATION ORDER
COMPANY, et al.,
8 Defendants.
9 Defendants brought this motion on April 6,
1988 to
10
11 dismiss, or in the alternative, for summary
judgment. For the
12 following reasons, this Court grants the
motion to dismiss with
13 leave to amend.
14 Plaintiff originally brought this wrongful
termination
15 lawsuit in state court, alleging that defen-
dants fired her in
16 violation of a promise of full employment or
salary until she
-114-
17 turned 65. Defendants properly removed to
federal court on the
18 grounds of federal preemption. In September
1987, this Court
19 denied plaintiff's motion to remand, finding
that the complaint
20 implicated a collective bargaining agreement
covered by the
21 Railway Labor Act, 45 U.S.C. %151 et seq..
22 The Railway Labor Act establishes that any
"'minor
23 disputes" must be referred to the National
Railroad Adjustment
24 Board for final and binding arbitration. 45
U.S.C. SS 153,
25 v. Southern Pacific Co., 799 F.2d 1282, 1290
(9th Cir-
26 1986). 'Wrongful termination is deemed to be
a "minor dispute".
27 Id
Accordingly, on its face, plaintiffs' first
and second
2 causes of action, for wrongful
“1,127
termination, establish a claim
3 which must be referred to the National Rail-
road Adjustment
4 Board final and binding arbitration.
5 Plaintiffs' fourth and fifth causes of action,
for
6 discrimination and loss of consortium, are
pendent state
7 Claims. This Court declines to exercise its
pendent
8 jurisdiction.
9 Accordingly, this Court GRANTS defendants'!
motion to dismiss. Plaintiffs are granted leave
to amend the complaint to state a federal cause
of action. Such amendment must be
12 filed with the Court within thirty (30) days
cf this Order.
13 IT IS SO ORDERED.
Dated: April 6.1988.
15 D. Lowell Jensen
16 United States District Judge
~1i16=
UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
SIEU MEI TU and JOSEPH Z. TU, FILED
5 Plaintiffs,, JUNE 30, 1988
6
7 V. C 87 1198 DIJ
8
9 SOUTHERN PACIFIC TRANSPORTATION, ORDER et al.,
10 Defendants.
12
13 Defendants brought this motion to dismiss the
First
14 Amended Complaint. For the following reasons,
this Court
15 grants defendant's motion to dismiss the
first, second, third,
16 fifth, and seventh causes of action. Defen-
dants The Atchison,
17 Topeka and Santa Fe Railway Company and Santa
Fe Southern
18 Pacific corporation are dismissed from all
causes of action
19 pursuant to Fed. R. Civ. P. 4(j). Defendant
Southern Pacific Transportation Company is dis-
missed from the eighth cause of
20
21 action. Finally, this Court vacates its April
6, 1988 Order as, to the issue of pendent juris-
diction, and will exercise pendent
22
23 jurisdiction over the fourth and sixth causes
of action.
24 1. The first, second and third causes of
action
25 In its April 6, 1988 Order, this Court held
that
26 plaintiff's causes of action for wrongful
termination state a
27 claim which must be referred to the National
Railroad
28 Adjustment Board for final and binding arbi-
tration, pursuant to
2 the Railway Labor Act. This Court granted
plaintiff leave to
3 amend to state a federal cause of action.
“1i9=-
4 The amended first, second, and third causes
of action
5 still fail to state a cause of action which
cause of action which would give this
6 Court jurisdiction over plaintiff's claim for
wrongful
7 termination. See, 45 U.S.C. SS 153, Lewy Vv.
Southern Pacific
8 Transp. Co, 799 F.2d 1281, 1290 (9th Cit.
1986). Accordingly,
9 these claims are dismissed with prejudice.
10 2.The fifth cause of action
11 In the fifth cause of action, plaintiff
alleges that the
12 defendant railroads conspired to merge, to
cease the operation
13 of Pacific Fruit Express, and therefore to
terminate plaintiff.
14 Absent more, the merger of two companies does
not give rise to
15 a private federal or state action.
16 Insofar as a private state action might
exist for
17 termination due to the aborted merger, this
Court concludes
18 that it is not the proper forum for an
initial determination of this matter. The Inter-
state Commerce Commission is the
20 appropriate agency for an initial determina-
tion of any claimed
21 violation of 49 U.S.C. SS 11347, which pro-
vides for employee
22 protection in any rail carrier merger. See,
Walsh v. United -
23 States, 723 F.2d 570 (7th Cir. 1983),
Engelhardt v.
24 Consolidated Rail cCorp., 594 F.Supp 1157,
1164 (N.D.N.Y. 1984).
25 Accordingly, the fifth cause of action is
dismissed with
26 prejudice.
2 3. The fourth and sixth causes of action
3 Plaintiff's fourth cause of action purports to
state a
4 claim for wrongful discharge in violation of
the fundamental
=420=
5 principles of public policy of the United
States of America and
6 the State of California... in that said -termi-
nation was based on
7 discrimination against plaintiff... First
Amended Complaint, P. 10, p3l.
9 This claim does not state a federal statutory
claim for
10. age or sex discrimination, nor a claim for
employment
11 discrimination under California law. In its
April 6, 1988
12 Order, this Court construed this claim as a
pendent state claim
13 for discrimination. While the pleading is
scarcely the model
14 of clarity, the Court will continue to con-
strue this claim as a
15 state claim for discrimination, and will
exercise its pendent
i6 jurisdiction.
17 The April 6, 1988 order, insofar as it
declined the
-12i-
18 exercise of pendent jurisdiction over the
fourth, and seventh
19 cause of action, is hereby vacated.
20 4. The seventh-cause of action
21 Plaintiff's seventh cause of action states a
Claim for the,
22 infliction of emotional distress. This claim is
preempted by
23 federal labor law, since plaintiff's alleged
emotional distress
24 arises out of conduct covered by the collec-
tive bargaining
25 agreement. Truex v. Garrett, 784 F.2d 1347,
1351 (9th Cir. 26 1985).
The Ninth Circuit has specifically held that
emotional
3 distress claims arising out of termination and
brought by railway workers covered by the Rail-
way Labor Act must be submitted to grievance and
arbitration Lewy v. Southern Pacific Transporta-
tion Company, 799 F.2d 1281, 1291
4 (9th Cir. 1986).
6 Accordingly, the seventh cause of action is
i232"
dismissed.
7 5. The eighth-cause of action
8 The eighth cause of action purports to state a
claim for
9 breach of the duty of fair representation.
Plaintiff cannot
10 state a claim against defendant railroads for
breach of this
11 duty, but only against the Union, the Bro-
therhood of Railway,
12 Airline and Steamship Clerks.
13 Accordingly, this claim is dismissed against
the defendant
14 railroads.
15 6. Defendants Santa Fe and Railway
16 Plaintiff's complaint was filed in state
court on
17 September 26, 1986 and properly removed to
this Court by
18 defendant Southern Pacific Transportation
Company on March 20, 1987. Plaintiffs did not
effectuate service in 1987
20 on defendants Santa Fe and Railway until Decem-
-i23-
ber 8, 1987. Thus, plaintiffs
21 failed to serve these defendants within the
120-day time period, prescribed by Fed. R. Civ.
P. 4(3).
23 Dismissal pursuant to 4(j) is mandatory
absent a showing
24 of good cause. Wei v. State of Hawaii, 763.
F.2d 370, 372 (9th
25 Cir. 1987). Plaintiff has been unable to
demonstrate any good
26, cause for failure to serve these defendants.
Thus, defendants Santa Fe and Railway are
dismissed from
2 all causes of action.
3
4 Accordingly,
5 The first, second, third, fifth, and seventh
causes of action are DISMISSED with prejudice;
6
7 This Court will exercise its pendent jurisdic-
tion over the
8 fourth and sixth claims;
9 The defendant railroads are DISMISSED from the
-124-
eighth cause of action;
11 Defendants Santa Fe and Railway
are DISMISSED from all
12 causes of action.
13 A status conference will be held on
day, 14 September 7, 1988 at 9 a.mMm..
15 IT IS SO ORDERED.
16 Dated: June 30, 1988.
Lowell Jensen
18 United States District Judge
-i123-
Wednes-
FILED
FEB 06 1989
WILLIAM L WITTAKER CLERK.
U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
3 SIEU MEI TU and JOSEPH TU,
4 Plaintiffs,
5 v C87-1198-DLJ
6, ORDER GRANTING DEFENDANTS' SOUTHERN PACIFIC
TRANSPORTATION MOTIONS FOR SUMMARY COMPANY, et.
al., JUDGMENT AND DENYING
7 DEFENDANTS' MOTION TO
8 DISQUALIFY
9
10
11 The Court heard defendants' Motions for Sunm-
mary Judgment
12 and for Disqualification on February 2, 1989.
Appearing for
13 plaintiffs Sieu Mei Tu and Joseph Tu was Lee
J. Kubby.
14, Appearing on behalf of defendant Southern
=i26-
Pacific and Pacific
15 Fruit Express was Kevin P. Block. Appearing
for the Union
16 defendants were James M. Darby and Kathleen
S. King.
17 Plaintiff Sieu Mei Tu is a sixty-two year old
asian
18 female. Plaintiff claims that her employment
with defendant
19 Pacific Fruit Express ("PFE") was terminated
because of her
20 age, sex and race in violation of the Cali-
fornia Fair
21 Employment and Housing Act ("“FENA™) .
Cal. Gov.code SSSS 12900-
22 12993 (1980). Plaintiffs also contend that
they have suffered
23 a loss of consortium as a result of defen-
dants' actions. Finally, plaintiffs claim that
the defendant unions breached
24 their duty of fair representation under fed-
eral labor law.
25
-127-
26 After reviewing the briefs submitted by the
parties, the
27 arguments of counsel and the applicable law,
the Court hereby
GRANTS defendants' Motions for Summary Judgment.
2 Also before the Court is defendants' Motion
for
3 Disqualification of plaintiffs' counsel. This
motion is based
4 on defendants' contention that plaintiffs'
counsel engaged in
5 unethical conduct by communicating, ex parte,
with an employee
6 of Southern Pacific regarding this litigation.
Based on the
7 representations made by Mr. Kubby during oral
argument that no
8 such communication occurred, the Court hereby
DENIES
9 defendants' Motion for Disqualification.
10 I.
11 Under Rule 56(c) of the Federal Rules of
Civil Procedure,
-126-
12 summary judgment may be granted when "the
pleadings,
13 depositions, answers to interrogatories, and
admissions on
14 file, together with the affidavits, if any,
show that there is
15 no genuine issues as to any material fact and
that the party
16 is entitled to a judgment as a matter of
law."
17 In a motion for summary judgment, the Supreme
Court has ,
18 held that the moving party has the "burden of
showing the
19 absence of material fact." Adickes v. S.H.
Adickes v. S.H. Kress and Co., 90
20 S.Ct. 1598, 1608 (1970). However, the Court
has also stated |
21 that summary judgment could issue “after
adequate time for
22 discovery and upon motion, against a party
who fails to make a
23 showing sufficient to establish the existence
-i129=
of an element
24 essential to that party's case, and on which
that party will
25 bear the burden of proof at trial." Celotex
Corp. v. Catrett, 26 106 S.Ct. 2548, 2552-54
(1986).
The Court finds that there is not a genuine
issue regarding the following material facts in
this action.
a
3 Plaintiff Sieu Mei was furloughed from her
position as an
4 accountant with defendant PFE when it merged
with defendant Southern Pacific ("SP"), its par-
ent corporation, during a
6 reorganization of SP in 1985. This reorganiza-
tion was the
7 result of economic hardships suffered by PFE
due to increased
8 competition in the transportation industry.
9 There were 16 clerical employees at PFE at the
time of
10 the merger. Prior to the reorganization, PFE
-130"
ait i ie et li OT ce i iti Bh ee
and SP
11 management determined that PFE employees in
those positions
12 that would not be required at SP after the
merger would be
13 furloughed and those mestueie in the remain-
ing positions
14 would be transferred to SP. Out of the 16
clerical positions
15 on the "seniority district one" roster at
PFE, 7 were
16 furloughed and 9 were transferred to SP.
Within this group of
17 16 PFE employees, there were 15 clerks over
the age of 40, 7
18 female clerks and 2 asian american—employees.
Following the
19 merger, defendants transferred 9 of the 15
Clerks over the age
20 of 40, 4 of the 7 female clerks, and 1 of the
2 asian american
21 employees to positions at SP. Defendants have
interviewed
af
22 Sieu Mei since furloughing her, but she has
not been rehired. —
23
24 II
25 To state a prima facie case under the FELA
for
26 intentional discrimination, plaintiff must
show that:
(1) she belongs to a protected group;
2 (2) her job performance was satisfactory;
(3) she was discharged from her posi-
tion:
4 (4) others not in the protected class were
retained by
5 defendants.
6 Mixon v. Fair Employment a Housing Employment
& Housing Commission, 192
7 Cal.App.3d 1306, 1318 (1987) (citing McDonald
v. Santa Fe Trail
8 Transportation Co., 427 U.S. 273 (1976)).
9 After the initial prima facie case is pres-
ented by
10 plaintiff, defendants are given an opportun-
«i33~
ity to rebut plaintiff's case by showing that
there was a legitimate reason
12 for dismissal. Id. at 1317. "The defendant
need not persuade
13 the court that it was actually motivated by
the proffered
14 reasons. It is sufficient proffered 14 rea-
sons. It is sufficient if the defendant's evid-
' ence raises
15 a genuine issue of fact as to whether it dis-
criminated against
16 the plaintiff."
Id. at 1318 (quoting Texas Dept. of Community 17
| Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
The Ninth Circuit has held that economic hard-
ship is a sufficient reason to terminate an
employee. Gianaculas son to terminate an
employee. Gianaculas v. Trans World Airlines,
20 iInc., 761 F.2d 1319, 1395 (9th Cir. 1985);
Clutterham 1395 (9th Cir. 1985); Clutterham v.
21 Coachmen Industries, Inc., 169 Cal.App.3d
1223, 1227, 215
22 Cal.Rptr. 795 (1985).
“133°
23 If a defendant succeeds in creating a genuine
issue of
24 material fact concerning the reason for dis-
missing an
25 employee, the burden of proof then shifts an
25 employee, the burden of proof then shifts
back to the
26 plaintiff to prove "that the proffered reason
was not the true
reason for the employment decision." Id. A
plaintiff may
2 accomplish this either directly by "persuading
the court that
3 a discriminatory reason more likely motivated
the employer or
4 indirectly by showing that the employer's
proffered
5 explanation is unworthy of credence." Id. at
1318-19. (citing
6 Burdine, 450 U.S. at 256).
7 In the present case, plaintiff Sieu Mei has
stated a
8 prima facie case of discrimination. She is a
-134-
member of three
9 protected groups. Her job performance prior to
her dismissal
10 was at the very least satisfactory, and sev-
eral of her
11 superiors rated her work as exceptionai. She
was furloughed
12 instead of being transferred to SP in 1985.
Other employees |
13 who were not over 40, female, or asian, were
transferred into
14 positions at SP that Sieu Mei was qualified
to perform. Thus,
15 a prima facie a prima facie showing of inten-
tional discrimination has been
16 made by plaintiffs.
17 Defendants have rebutted the presumption of
18 discrimination created by plaintiffs' initial
showing by
19 offering substantial proof supporting their
contention that
20 Sieu Mei was furloughed for economic reasons.
PFE had
-135-
21 experienced a severe decline in business due
to increased
22 competition from the trucking industry prior
to the 1985
23 merger. Defendants assert that Sieu Mei was
not transferred
24 to SP because the position she was in at PFE.
was not needed at
25 SP. Defendants provided the Court with suffi-
cient evidence to
26 create a genuine issue of material
fact as to whether
intentional discrimination motivated the deci-
sion to furlough
2 plaintiff. This position is supported by the
fact that other
3 employees who are not members of a protected
class were also
4 not transferred to SP following the merger.
Accordingly,
5 defendants have satisfied their burden of
rebutting
6 plaintiffs' prima facie case of discrimina-
-136=-
ee ee ep
tion.
7 Plaintiffs have failed to present evidence
which raises a
8 genuine issue related to defendants' factual
showing of
9 economic hardship. Although plaintiffs assert
that PFE
10 intentionally turned away business prior to
the merger to the merger in
11 order to facilitate the combination of SP and
PFE, the
12 evidentiary showing necessary to support this
assertion is
13 clearly insufficient. After ample time for
discovery has
14 passed, plaintiffs have not presented the
Court with evidence
15 sufficient to overcome defendants' justifica-
tion for their actions. Thus, plaintiffs have
not met their overall burden
17 and have not stated a valid claim for inten-
tional
18 discrimination against SP and PFE.
-isI-
19 III
20 Plaintiffs' state tort claim for loss of con-
sortium claim is
21 dependent upon the validity of the underlying
discrimination
22 action. Santigo v. Employees Benefits Ser-
vices, 168
23 Cal.App.3d 898, 906, 241 Cal.Rptr. 679
(1985). Because
24 plaintiffs have failed to state a claim for
discrimination,
25 summary adjudication of this claim is also
appropriate.
26 Accordingly, defendants' Motion for Summary
Judgment is also
GRANTED for plaintiffs' loss of consortium
claim.
2 IV.
3 Plaintiffs claim against the defendant Unions
alleges
4 that Union representatives breached their duty
of fair
5 representation under section 301 of the
=-135-
a
National Labor 6 Relations Act, 29 U.S.C. SSSS
151-188 (1984), by not fully
7 prosecuting plaintiff Sieu Mei's grievance
against PFE.
8 Claims for breach of a union's duty of fair
representation
9 under section 301 are subject to a six month
10 statute of limitations. Delcostello v.
International Brotherhood of Teamsters,
462 U.S. 151 (1983). This statute
12 of limitations begins to run when "an
employee knows when "an employee knows or should
13 know of the alleged breach of the duty of
fair breach of the duty of fair
14 representation." Galindo v. Stoody Co., 793
F.2d 1502, 1503 (9th Cir. 1986).
16 This cause of action was filed in April of
1988.
17 Plaintiffs and their attorney were aware of
the procedures
18 being followed by the Union defendants to
prosecute plaintiffs' grievance in 1986.
Plaintiffs' counsel admitted
“i397
20 knowledge of the acts alleged to constitute a
breach of
21 defendants' duty in a letter dated January
20, 1986,
22 threatening to sue defendants for breach of
their duty.
23 Therefore, because the six month statute of
limitations had
24 expired prior to the filing of this clain,
defendant Unions'
25 Motion for Summary Judgment of plaintiffs'
Claim under section
26 301 is GRANTED.
2 Therefore, defendants' Motions for Summary
Judgment are
3 hereby GRANTED as to plaintiffs' claims for
discrimination,
4 loss of consortium and breach of the duty of
fair
5 representation and breach of the duty of fair
Defendants Motion for Disqualification is
6 hereby DENIED.
7 IT IS SO ORDERED.
-140-
8 DATED: February 06, 1989.
9 D. Lowell Jensen
10 United States District Judge
=14i°
FILED
UNITED STATES DISTRICT COURT
FEB 0 6 1989
2 NORTHERN DISTRICT OF CALIFORNIA
WILLIAM L. WHITTAKER CLERK.
U.S. DISTRICT COUNT
3 SIEU MEI TU AND JOSEPH TU
4
Plaintiffs,
> Ve C87-1198-DLJ
6 SOUTHERN PACIFIC TRANSPORTATION CO., et al.,
8 Defendants.
For the reasons stated in the order signed on
this date, this court enters JUDGMENT in favor
of defendants.
IT IS SO ORDERED.
DATED: February 6, 1989
14 D. Lowell Jensen
16 United States District Judge
-142-
FILED
May 3, 1989 UNITED STATES DISTRICT COURT
3 NORTHERN DISTRICT OF CALIFORNIA
4 SIEU MEI TU and JOSEPH TU, C-87-1198 DLJ
5 Plaintiffs, ORDER
6 Vv
7 SOUTHERN PACIFIC TRANSPORTATION COMPANY, et
al.
8 Defendants.
9
10 On April 12, 1989, this Court heard plain-
tiffs' motion
11 for reconsideration of the order granting
summary judgment to
12 defendants. Lee Kubby appeared for plain-
tiffs. Wayne M.
13 Bolio appeared for defendant Southern
Pacific. James Darby
14 and Kathleen King appeared for defendant
Union. For the
15 following reasons, the Court DENIES plain-
tiffs' motion for
16 reconsideration as to defendant Southern
#14 3-
Pacific, and GRANTS
17 plaintiffs' motion for reconsideration as to
defendant Union.
18
19 RECONSIDERATION OF ORDER GRANTING SUMMARY
JUDGMENT
20 FOR DEFENDANT SOUTHERN PACIFIC
21 In its earlier Order, the Court granted sum-
mary judgment
22 to defendant Southern Pacific on grounds that
while plaintiffs
23 had established a prima facie case of discri-
mination, Southern
24 Pacific had rebutted this showing by evidence
of a legitimate economic reason for the disris-
sal, and that the plaintiffs had
26 not provided evidence which would meet their
overall burden of
27 showing intentional discrimination.
28 In their motion for reconsideration, plain-
tiffs'
2 principal argument is that Mrs. Tu had a con-
tractual right
-144-
3 to continued employment. On this basis, plain-
tiffs' contend
4 that defendant's stated reason for Mrs. Tu's
dismissal,
5 economic hardship, is false. However, this
same argument was
6 raised in plaintiffs' opposition to summary
judgment papers.
7 This argument was considered and rejected by
the Court in
8 reaching its order granting summary judgment
for defendant
9 Southern Pacific.
10 The Ninth Circuit set out the standard of
review for a
11 motion for reconsideration of a summary judg-
ment order in
12 Backlund v. Barnhart, 778 F.2d 1386 (9th Cir.
1985). The
13 court held that a motion for reconsidera-
tion of a summary
(14 judgment motion should be denied if it pre-
sents no arguments
15 that have not already been raised in oppo-
sition to summary
16 judgment. Id. at 1388.
17 Under the rule established in Backlund, this
Court DENIES
18 plaintiffs' motion as to defendant Southern
Pacific because
19 plaintiffs' motion fails to raise any new
arguments, facts,
20 Or allegations, not previously raised in
opposition to
21 summary judgment.
22
24
25 Although plaintiffs cite a number of rules
from the Federal Rules of Civil Procedure in
support of their motion,
26 a motion for reconsideration of summary
judgment is appro-
27 priately brought under Rule 59(e).
1 RECONSIDERATION OF THE ORDER GRANTING SUMMARY
JUDGMENT
2 FOR THE UNION DEFENDANT
-146-
3 In its Order granting summary judgment to
defendant
4 Union, the Court determined that the plaintiff
had knowledge
5 of the Union's alleged lack of fair represen-
tation in January
6 1986. Plaintiffs did not name the Union as a
defendant until
7 April 1988. The Court found plaintiffs' claim
time-barred by
8 the six month statute of limitations estab-
lished by the
9 Supreme Court in Delcostello v. International
Brotherhood of
10 Teamsters, 462 U.S. 151, 172 (1983) for fair
representation actions. on grounds that the sta-
tute of limitations had run
12 on plaintiffs' claim, the Court granted sum-
mary judgment for
13 defendant Union.
14 On January 20, 1986, plaintiffs' counsel sent
a letter |
15 to the Union requesting action on Mrs. Tu's
-147-
behalf. On
16 January 28, 1986, in response, the Union sent
a letter to
17 Mrs. Tu, informing her that it would proceed
with her claim
18 through the grievance process. On November
30, 1987, the
19 arbitration board denied the Union's claim
on behalf of Mrs.
20 Tu. On January 4, 1988, the Union notified
Mrs. Tu of the
21 arbitration.decision. Plaintiffs then filed
an amended
22 complaint in April 1988, naming the Union as
a defendant on
23 the fair representation clain.
24 The Ninth Circuit in Galindo v. Stoody Co.,
793 F.2d 25 1502, 1510 (9th Cir. 1986), held
that a fair representation
26 claim based on how a grievance is presented
to an arbitrator
1 accrues when the employee learns of the arbi-
trator's decision."
-148-
2 The policy behind such a rule is the further-
ance of nonjudicial
3 resolutions.
4 Based on Galindo, this Court GRANTS plain-
tiffs' motion plaintiffs' motion for
5 reconsideration. Since the statute of limita-
tions the statute of limitations did not begin
6 to run until Mrs. Tu was informed of the arbi-
trator's decision
7. in January 1988, her amended complaint was
timely filed in April 8
8. 1988. Accordingly, this Court vacates its
earlier order
9 granting summary judgment to defendant Union.
The Court's
10 ruling is without prejudice to a renewal by
defendant Union of its motion for summary judg-
ment.
11 Plaintiffs are directed to file an amended
complaint by June
13 2, 1989.
the status conference set for May 10, 1989, for
is
-149-
14 vacated.
15 IT IS SO ORDERED.
17 DATED: May 1989.
18 D. Lowell Jensen
20 United States District Judge
~130°
<_< EEO
F I L E D
COURT
AUG 14,989
NORTHERN DISTRICT
U.S. DISTRICT
OF CALIFORNIA
3 SIEU MEI TU and
C-87-1198-DLJ
4 Plaintiffs,
5 Vv.
6 SOUTHERN PACIFIC TRANSPORTATION COMPANY,
oe
7 Defendants.
8 On July 26,
10 defendants'
motion to
11 strike.
appeared for
12 defendants
and Steamship
13 clerks,
R. B.
Lee J. Kubby
1989,
James M.
Brotherhood
UNITED STATES DISTRICT
OF CALIFORNIA
COURT NORTHERN DISTRICT
JOSEPH TU,
ORDER GRANTING
DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
et
this Court heard the union
motion for summary judgment and
Darby and Kathleen S. King
of Railway, Airline
Brackbill, and J. M. Balovich.
“13i-
14 appeared for plaintiffs.
15 For the following reasons, this Court GRANTS
16 defendants' motion for summary judgment.
Since only "Doe"
17 defendants remain in the action, this Court
DISMISSES
18 plaintiffs' second amended complaint WITH
PREJUDICE. WITH PREJUDICE.
19 Defendants' motion to strike motion is there-
fore MOOT.
20
21 I. BACKGROUND
22 Plaintiff Sieu Mei Tu, a sixty-two year old
Asian
23 female, was laid off from employment by the
Pacific Fruit
24 Express Company (PFE), a subsidiary
of Southern Pacific
25 Transportation Co. (SP). Plaintiffs Sieu Mei
Tu and Joseph >
26 Tu claim that Sieu Mei Tu was terminated by
PFE because of
27
=i52"
28 her age, sex, and race, in violation of the
California Fair 2 Employment and Employment and
Housing Act. Plaintiffs further allege that the
union defendants breached their duty of fair
3 representation under the Railway Labor Act, 45
U.S.C. 151
4 et seq, by failing to adequately prosecute
Sieu Mei Tu's
5 grievance against PFE.
7 II. STANDARD FOR SUMMARY JUDGMENT
8 Under Rule 56(c) of the Federal Rules of Civil
9 Procedure (FRCP), summary judgment may be
granted when the
10 pleadings, depositions, answers to interroga-
tories, and
11 admissions on file, together with the affida-
vits, if any,
12 show that there is no genuine issues as to
any material fact
13 and that the party is entitled to a judgment
as a matter of
14 law."
15 In a motion for summary judgment,
-i353=-
"(ijf the party
16 moving for summary judgment meets its initial
burden of ~
17 identifying for the court those portions of
the materials on
18 file that it believes demonstrates the
absence of any
20 genuine issues of material fact," the burden
of production then shifts so that "the nonmoving
party must set forth, by
22 affidavit or as otherwise provided in Rule
56, “specific
23 facts showing-that there is a genuine issue
for triai.® T.W. Electrical Service, Inc. v.
Pacific Electrical
24 Contractors Ass'n, 809 F.2d 626, 630 (9th
Cir. 1987) (citing
25 Celotex Corp. v. Catrett, 106 S. Ct. 2548,
2553 (1986);
1. Kaiser Cement Corp v. Fischbach & Moore,
Inc., 793 F.2d
1100, 1103-4 (9th Cir.), cert denied, 107 S. Ct.
435 (1986))
~1356¢
2 (emphasis in original). Summary judgment may
issue after
3 adequate time for discovery and upon
motion, against a party
4 who fails to make a showing sufficient. to
establish the
5 existence of an element essential to that
party's case, and
6 on which that party will bear the burden of
proof at trial.
7 Celotex Corp., 106 S. Ct at 2553-54. The stan-
dard for
8 judging either a defendant's or plaintiff's
motion for
9 summary judgment is the same standard used to
judge a motion |
10 for a directed verdict: "whether the evidence
presents a sufficient disagreement to require
submission to a jury or
12 whether it is so one-sided that one party
must prevail as a
13 matter of law." Anderson v. Liberty Lobby,
Inc., 106 S. Ct. 14 2505, 2512 (1986).
-i55>
15 Under this standard, the Court finds that no
genuine
16 issue of material fact remains with respect
to plaintiffs'
17 claim for breach of duty of fair representa-
tion. Summary
18 judgment is therefore appropriate.
20 III. BREACH OF DUTY OF DUTY OF FAIR REPRES-
ENTATION
21 Defendants move for summary judgment on
plaintiffs'
22 claim for breach of duty of fair representa-
tion. A union
23 violates its duty of fair representation only
if its conduct
24 toward a member of the collective bargaining
unit is
25 arbitrary, discriminatory or in bad faith."
Vaca v. Sipes,
1. 386 U.S. 171, 190 (1967); Salinas v. Milne
Truck Lines
Inc., 846 F.2d 568, 569 (Sth Cir. 1988). A
court must
-156-
3 initially determine whether the act in ques-
tion involved the union's judgment or whether it
was procedural or
4 ministerial.1 Moore v. Bechtel Power Corp.,
840 F.2d 634, 5 6 636, (9th Cir. 1988). If a
union's judgment is in question,
7 the plaintiff may prevail only if the union's
conduct was "discriminatory or in bad faith."ID
8 Defendants argue that they are entitled to
summary
9 judgment because they acted in good faith and
without a
10 discriminatory motive in representing Sieu
Mei Tu.
11 Defendants advance five arguments to support
their claim
12 that their conduct was neither discriminatory
or in bad
13 faith.
14 First, defendants point out that, in antici-
pation of
15 the closing of the Brisbane office, they
filed a claim under
-157-
16 the collective bargaining agreement with PFE
on behalf of
17 Sieu Mei and others similarly situated.
In the claim,
18 defendants stated that PFE was wrongfully
transferring work
19 to other companies and locations without pro-
viding employees
20 with "TOPS" protection.1
21 Second, defendants note that after Sieu Mei
Tu and
22 seven others were laid off, they filed
another grievance,
24 insisting that the employees be permitted to
follow their
25 1"TOPS" protection provides job guarantees and
monetary benefits for employees adversely affected
by abolishments
26 and/or transfers
1. work to San Francisco or be provided with
"TOPS" protection. The union eventually appealed
both grievances. appealed both grievances.
2 Third, defendants note that in response
~-
-i 55"
SKE OO
to the
3 inquiries by plaintiffs' counsel, defendants
informed him by
4 letter that the union was pursuing a claim
under the
5 collective bargaining claim under the collec-
tive bargaining agreement on Sieu Mei fTu's
behalf.
6 Fourth, defendants point out that they held
meetings
7 with the Brisbane clerks during this period,
which Sieu Mei
8 Tu attended, to inform the members of the
actions the union
9 was taking against PFE.
10 Fifth, defendants contend that they took the
grievance
11 to arbitration and were ultimately unsucces-
sful. However,
12 defendants maintain that they convinced
the arbitrator that
13 the laid off employees, including Sieu Mei
Tu, should be
14 given priority consideration for new jobs
with SP.
15 Defendants note that they provided Sieu Mei
Tu's name and
16 address to SP for reemployment consideration,
any she was
17 interviewed for a new position as a result of
their efforts.
18 This Court finds defendants' argument persua-
Sive.
19 Defendants' adherence to established proce-
dures for handling
20 grievances suggest that its conduct was
neither
21 discriminatory or in bad faith, and therefore
or in bad faith, and therefore not a breach
22 of duty of fair representation. See Johnson
v. United
23 States Postal Service, 756 F.2d 1461, 1466 (9th
Cir. 1985).
24 Opposing defendants' motion, plaintiffs
allege in their
25 papers and at orai argument that defendants
~260=
breached their
1.duty of fair representation
by acting in an arbitrary, prejudicial, and per-
functory manner by failing: (1) to
2 present any evidence at the arbitration hear-
ing; (2) to
3 confer with Sieu Mei Tu or her attorney con-
cerning her
4 claims; (3) to make a discrimination claim on
her behalf;
5 and (4) to protect her from retaliation. As
support,
6 plaintiffs only refer only refer to the trans-
cripts of the arbitration
7 hearing, the Interstate Commerce Commission's
hearing, and
8 this Court's hearing on the Railroad defen-
dants' motion for
9 summary judgment.
10 This Court finds plaintiffs' argument unper-
suasive. A
ll party responding to a motion for summary
judgment may not
12 rest on mere allegations of pleadings but,
rather, must set
13 forth specific facts showing there is a
genuine issue for
14 trial. Celotex, 106 S. Ct. at 2552. Id at
2552. It is the non-moving
15 party's burden to produce evidence that would
Support a jury
16 verdict in his favor. Anderson, 106 S. Ct at
256.
17 In response to defendants' motion, plaintiffs
refer
18 only to the transcripts noted above and the
prior
19 declarations that plaintiffs filed in opposi-
tion to the
20 Railroad defendants' prior motion for summary
judgment.
21 Even assuming that there that there is evi-
dentiary material properly
22 before the Court before the Court in the
transcripts, there is no showing by
23 this material or by the declarations that the
-162=-
defendants'
24 conduct was either discriminatory or in bad
faith.
25 Plaintiffs have therefore failed to present
any evidence which raises a genuine issue of
material fact. Since plaintiffs offer only the
conclusory allegations that
2 disputed material exists, without offering the
necessary
3 supporting evidence, plaintiffs have failed to
raise a
4 triable issue of material fact with respect to
their claim
5 for breach of duty of fair representation.
6 Accordingly, this Court GRANTS defendants’
motion for
7 summary judgment as to plaintiffs' claim for
breach the duty
8 of fair representation against the’ union
defendants. Since
9 union officers are immune from personal
liability for acts
10 undertaken as union representatives, Peterson
“163°
—
v. Kennedy, 11 771 F.2d 1244, 1256-57 (9th.Cir.
1985), summary judgment is
12 also appropriate in favor of R. B. Brackbill
and J. M.
13 Balovich, named as individual defendants.
14 CONCLUSION
16 Therefore, this Court GRANTS defendants’
motion for
17 summary judgment as to plaintiffs' claim for
breach of duty
18 of fair representation and DISMISSES WITH
PREJUDICE
19 plaintiffs' second amended complaint. Defen-
dants' motion to
20 strike is now MOOT.
21 IT IS SO ORDERED.
22 DATED: August 11, 1989
23 D. Lowell Jensen
24 United States District Judge
-164-
Filed Aug. 14, 1989
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SIEU MEI TU and JOSEPH TU,
4 C-87-1198-DIJ
Plaintiffs,
5 JUDGMENT
6 SOUTHERN PACIFIC TRANSPORTATION
7 COMPANY, et al.,
8 Defendants.
10 For the reasons set forth in this reasons set
forth in this Court's order granting defendants'
motion for summary judgment, issued on 12 August
11, 1989, judgment is hereby entered in favor of
13 defendants.
15 IT IS SO ORDERED.
16 Dated: August 11, 1989
18 D. Lowell Jensen
United States District Jucge
SERVICE DATE
SERVICE DATE DEC 4, 1992
INTERSTATE COMMERCE COMMISSION
DECISION
Finance Docket No. 30400 (Sub-no. 21)
SANTA FE SOUTHERN PACIFIC CORPORATION -- CONTROL
SOUTHERN PACIFIC TRANSPORTATION COMPANY
Decided: December 3, 1992
By decision served June 18, 1992, the Commission
reopened this proceeding and establish
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