FILED
NOT FOR PUBLICATION
JUL 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY GARITY, No. 13-15195
Plaintiff - Appellant, D.C. No. 2:11-cv-01109-PMP-
CWH
v.
APWU NATIONAL LABOR MEMORANDUM*
ORGANIZATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted November 3, 2015
Pasadena, California
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Plaintiff Rosemary Garity brought an action against the American Postal
Workers Union (“APWU”), the union that represented Garity in her role as a clerk
for the United States Postal Service, pleading claims for hostile work environment
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
negligent retention and intentional infliction of emotional distress under Nevada
state tort law, and federal claims under 42 U.S.C. §§ 1985 and 1986. The district
court dismissed these claims with prejudice, and Garity now appeals. Because the
facts and proceedings are known to the parties, we discuss them here only as
necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court properly dismissed Garity’s hostile work environment
claim under the ADA.1 Assuming without deciding that such a claim exists in this
circuit, see Brown v. City of Tucson, 336 F.3d 1181, 1190 (9th Cir. 2003), and that
we would apply Title VII law to analyze it, see, e.g., Walsh v. Nev. Dep’t of Human
Res., 471 F.3d 1033, 1038 (9th Cir. 2006), Garity has not pleaded sufficient facts
to suggest that a “reasonable person would find [her work environment] hostile or
abusive,” see Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998), or that
any ill-treatment directed towards her by the APWU was based on her disability.
We have little doubt that Garity found her work environment subjectively
unpleasant, but the evidence put forward in her amended complaint does not meet
1
We address Garity’s additional claims under the ADA (disability
discrimination, failure to accommodate, and retaliation) in a published opinion
filed with this memorandum.
2
the “demanding” standard necessary to state a hostile work environment claim. Id.
at 788.
2. The district court also properly dismissed Garity’s intentional infliction
of emotional distress (“IIED”) claim. To make out a valid IIED claim under
Nevada law, a plaintiff must show “(1) extreme and outrageous conduct with either
the intention of, or reckless disregard for, causing emotional distress, (2) the
plaintiff’s having suffered severe or extreme emotional distress and (3) actual or
proximate causation.” Star v. Rabello, 625 P.2d 90, 92 (Nev. 1981). “Extreme and
outrageous conduct” is defined as conduct that is “atrocious, intolerable or outside
all possible bounds of decency.” Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26
(Nev. 1998) (per curiam).
Even assuming that Garity suffered from severe distress caused by her
interactions with APWU, she falls far short of stating a valid claim on the “extreme
and outrageous” element. The specific APWU actions she complains of include
“intentionally refusing to file grievances, withdrawing grievances, writing a 3-page
signed statement [about Garity to management] with [the word] yelling underlined,
[sic] against plaintiff for management, impeding the Union investigation, colluding
with management to fire plaintiff, arranging a 6-day work week for the plaintiff,
and calling the sheriff to evict the plaintiff from the September, [sic] 2011 Union
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meeting.” This conduct plainly does not qualify as “extreme or outrageous.”
Though she alleges “emotional violence” at the hands of APWU, she offers no
incidents of aggressive encounters, crude insults, or the like. Indeed, Garity pleads
no additional facts to support her IIED claim beyond those used to support her
ADA disability discrimination claims, and though “[d]iscriminatory employment
practices are wrong . . . the tort of [IIED] is not intended to reach every
discrimination claim.” Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 (D. Nev.
1993). APWU may have been inconsiderate or unkind to Garity, but its actions did
not reach the level necessary to sustain an IIED claim.
3. Additionally, the district court correctly dismissed Garity’s negligent
retention claim. Under Nevada law, an “employer has a duty to use reasonable
care in the training, supervision, and retention of his or her employees to make sure
that the employees are fit for their positions.” Hall v. SSF, Inc., 930 P.2d 94, 99
(Nev. 1996). It is a “basic tenet,” however, that an employer is only liable for
“negligent hiring, training, or supervision of an employee” if the person involved is
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“actually . . . an employee.” Rockwell v. Sun Harbor Budget Suites, 925 P.2d
1175, 1181 (Nev. 1996) (emphasis added).2
Here, as APWU asserts, the APWU officials that Garity claims were
negligently retained were not employees, but rather elected leaders chosen by the
members of the union and removable only by specific internal processes. Indeed,
in her complaint Garity mentions that one of the officials, whom she claims APWU
negligently retained, only “t[ook] over as President of the Local #7156” after she
was “voted in by the favorite employees who [were] in the majority at the Pahrump
Post Office.” As a matter of common sense, there can be no negligent retention if
there is no employer-employee relationship, and Garity offers no case authority to
2
The Rockwell decision explicitly lists only negligent “hiring, training, or
supervision” and does not mention negligent “retention.” See Rockwell, 925 P.2d
at 1181. However, there is no reason to believe that the “actual employee”
limitation would not apply to the tort of negligent retention, and in the only
published Nevada Supreme Court decision to consider the tort, a bona fide
employer-employee relationship was at issue. See Hall, 930 P.2d at 99.
5
suggest otherwise, nor can she point to any Nevada cases finding tort liability
against a union for the conduct of its elected officials.3
4. Garity’s claims under 42 U.S.C. §§ 1985 and 1986 also fail. Both Garity
and APWU agree with the district court that 42 U.S.C. § 1985 “may not be invoked
to redress violations” of anti-discrimination statutes like Title VII and the ADA.
See Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979). And
a “claim can be stated under section 1986 only if the complaint contains a valid
claim under section 1985.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626
(9th Cir. 1988). Garity attempts to skirt these conclusions by gesturing to a door
that might have been left open in her complaint—a reference to violations of “Title
VII and other rights,” and two exhibits that mention denials of “due process
rights.”
3
Alternatively, Garity’s negligent retention claim is preempted by § 301 of
the Labor Management Relations Act, 29 U.S.C. § 185(a). Section 301’s “broad
preemptive scope entirely displaces any state cause of action based on a [collective
bargaining agreement], as well as any state claim whose outcome depends on
analysis of the terms of the agreement.” Cook v. Lindsay Olive Growers, 911 F.2d
233, 237 (9th Cir. 1990). Because Garity’s negligent retention claim “can be
resolved only be referring to the terms” of various union agreements—here, the
collective bargaining agreement between APWU and the United States Postal
Service, as well as the APWU Constitution that dictates how its elected officials
can be removed—her state tort claim is preempted by federal law. Id.
6
Garity’s argument fails for two reasons. First, even assuming there were
violations of Garity’s “other rights,” the violations arise from the same set of facts
that ground her Title VII claim and do not represent a “separately remediable
claim.” See Otto v. Heckler, 781 F.2d 754, 756 (9th Cir. 1986), amended by 802
F.2d 337. Second, Garity’s charge that the APWU “cut off” her ability to speak at
a union meeting in violation of her “due process” rights, seeks to hold APWU, a
private actor, liable for violating the First Amendment. APWU is not a state actor.
See Blum v. Yaretsky, 457 U.S. 991, 1002–03 (1982); Shelley v. Kraemer, 334 U.S.
1, 13 (1948).
4. Finally, we affirm the district court’s dismissal of these claims with
prejudice. Though we recognize that “[u]nless it is absolutely clear that no
amendment can cure the defect, . . . a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action,” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995), we find that
any such amendment would be futile. Garity has already amended her complaint
once, and provided a lengthy and detailed timeline of events (it spanned fourteen
pages and 151 separately enumerated items); we find it unlikely that there are
additional relevant facts to plead.
The parties shall bear their own costs on appeal.
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AFFIRMED.
8