NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY GARITY, No. 18-15633
Plaintiff-Appellant, D.C. No.
2:11-cv-01109-APG-CWH
v.
APWU NATIONAL LABOR MEMORANDUM*
ORGANIZATION,
Defendant-Appellee,
NEVADA POSTAL WORKERS UNION,
Intervenor.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted November 20, 2020
Pasadena, California
Before: PAEZ and OWENS, Circuit Judges, and ENGLAND,** Senior District
Judge.
Rosemary Garity (“Garity”) appeals the district court’s grant of summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
judgement to Defendant American Postal Workers Union, AFL-CIO (“the
National”) on Garity’s claims for disparate treatment, failure to accommodate, and
retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de
novo, we affirm. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994).
1. Garity originally filed suit against both American Postal Workers Union,
Local 7156 (“the Local”) and the National. When the Local dissolved, the district
court dismissed it from the suit, leaving the National as the sole defendant.
Although the Local no longer exists, Garity argues that the National is vicariously
liable for the Local’s violations of the ADA.1 There are two theories under which
the National can be liable for the Local’s wrongful actions. The district court
correctly held that Garity cannot prevail under either.
A national union can be liable for the actions of a local under common law
1
We are not persuaded that we should adopt the vicarious liability standard
advocated by Garity in her Supplemental Opening Brief. Garity also argues that
the National should be judicially estopped from denying that it is the Local’s
successor. Garity, however, did not raise this argument in the district court.
Generally, arguments not raised before the district court are waived on appeal. See
Manta v. Chertoff, 518 F.3d 1134, 1144 (9th Cir. 2008). While there are narrow
exceptions to this practice, they do not apply to Garity’s judicial estoppel
argument. United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005)
(stating that a court may exercise its discretion to review newly presented issues
when there are exceptional circumstances, due to a change in law while appeal was
pending, or when the issue is a pure issue of law and the opposing party will suffer
no prejudice). As a result, this argument is waived.
2
agency principles. Carbon Fuel Co. v. United Mine Workers of Am., 444 U.S. 212,
216-17 (1979). In determining whether an agency relationship exists, both the
terms of the entities' governing documents and the “actual relationship” between
the entities are relevant. Laughon v. Int’l All. Of Theatrical Stage Emps., Moving
Picture Technicians, Artists & Allied Crafts of the U.S. & Can., 248 F.3d 931, 935
(9th Cir. 2001). The Local was not an agent of the National. The National’s
Constitution and Bylaws explicitly state that locals are “fully autonomous.”
Further, the now-dissolved Local had its own constitution and bylaws, governing
its day-to-day procedures and logistics. The “actual relationship” between the two
entities also confirms that the Local was autonomous and not an agent of the
National. The Local had its own bank account, appointed its own shop stewards,
and held its own elections without the National’s involvement.
Garity contends that the National acquiesced in the Local’s discriminatory
actions because Scoggins and Ybarra, National Business Agents (“NBAs”), gave
Poulos guidance for handling Garity’s grievances and failed to investigate several
of her complaints. Although the NBAs provided guidance to Poulos, there is no
evidence that they controlled or directed her decisions. Indeed, Poulos testified
that all decisions concerning Garity’s grievances were her own. Garity has not
presented sufficient evidence to raise a genuine factual dispute over the role of the
NBAs in the grievance process.
3
Alternatively, a national can be held liable for the actions of a local if the
national "instigated, supported, ratified or encouraged the Local's activities . . . ."
Moore v. Local Union 569 of Int'l Bhd. of Elec. Workers, 989 F.2d 1534, 1543 (9th
Cir. 1993). Here, however, the record evidence at most shows that the National
had constructive knowledge of the Local’s actions. “[C]onstructive knowledge of
the Local's possibly illegal activity does not impose on the [National] a legal duty
to intervene.” Id. Even assuming that Garity complied with the National’s
complaint procedures, Garity does not identify any impermissible actions by the
National. Instead, she alleges actions by officers and members of the Local.
Poulos testified that she independently removed Garity as shop steward. And
Raydell Moore, a former member of the Local, retired from the National in 2000,
over eleven years prior to Garity’s lawsuit. The evidence does not show that any
of Moore’s alleged actions or inactions had anything to do with the National during
the relevant period. As the record shows, the NBAs acted without supervision
from the National.
Garity has not presented sufficient evidence to raise a genuine factual
dispute that either the Local was acting as an agent of the National, or that the
National instigated, ratified, or encouraged the Local’s alleged discriminatory
actions. On this record, the district court did not err in concluding that the National
cannot be held vicariously liable for the actions of the Local.
4
2. The district court also properly granted summary judgment in favor of the
National on Garity’s ADA claims. Garity contends that the National discriminated
against her because of her disability, failed to accommodate her disabilities, and
retaliated against her for engaging in protected activity. To “establish a prima
facie case of discrimination under the ADA [the plaintiff] must show that she: (1)
is disabled; (2) is qualified; and (3) suffered an adverse employment action
because of her disability.” 42 U.S.C. § 12101, et seq.; see Smith v. Clark Cty. Sch.
Dist., 727 F.3d 950, 955 (9th Cir. 2013).
Garity’s disparate treatment claim fails at step three because she cannot
show either direct evidence of discrimination by the union or evidence that the
union treated her less favorably than non-disabled, similarly situated individuals.
See Beck v. United Food & Commercial Workers Union, Local 99, 506 F.3d 874,
882 (9th Cir. 2007). To the contrary, the National took steps to ensure that Garity
was provided with the grievance representatives that she wanted, and her
complaints related to actions by the United States Postal Service (“USPS”) or
actions by NBAs who were not agents of the National.
The prima facia elements of a failure to accommodate claim are similar to a
disparate treatment claim, except at step three, the employee must show that “[she]
is a qualified individual [who is] able to perform the essential functions of the job
with reasonable accommodation.” Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th
5
Cir. 2003). Garity’s failure to accommodate claim fails because she cannot show
that the National caused or attempted to cause the USPS to fail to provide a
reasonable accommodation. See 42 U.S.C. § 2000e-2(c)(3). Only USPS officers
participated in Garity’s accommodation hearing before the District Reasonable
Accommodation Committee (“DRAC”), and there is no evidence that the National
“prevented or obstructed” the USPS from providing her with an accommodation.
Instead, DRAC independently determined that no “reasonable accommodation”
was available to allow Garity to perform her essential job duties because her
requested accommodations would cause “undue hardship” to the USPS and/or
violate the CBA. Further, Garity provided no evidence that she requested the
National to address any accommodation issues.
“To establish a prima facie case of retaliation under the ADA, an employee
must show that: 1) [she] engaged in a protected activity; 2) suffered an adverse
employment action; and 3) there was a causal link between the two.” Pardi v.
Kaiser Found. Hospitals, 389 F.3d 840, 849 (9th Cir. 2004). Garity’s claim fails
because she cannot satisfy the second and third elements. While Garity alleges
that several statements by Scoggins and certain events were retaliatory, she does
not articulate how these statements or events were intended to punish or discourage
her from pursuing ADA-protected rights. Further, the record evidence is
insufficient to attribute the alleged retaliatory statements and events to the
6
National, as opposed to the USPS, NBAs, or the Local.
For the foregoing reasons, there is no genuine issue of material fact as to
whether the National took adverse actions against Garity because of her alleged
disability or participation in protected activity in violation of the ADA. The
district court correctly determined, as a matter of law, that the National was
entitled to summary judgment on Garity’s ADA claims.
3. Finally, Garity argues that the district court erred by dismissing the Local
and by not establishing which entity was the Local’s successor. Generally,
arguments that were not raised in the district court are waived. See Mantra, 518
F.3d at 1144. We have recognized three narrow exceptions to this general rule.
Flores-Montano, 424 F.3d at 1047. These exceptions, however, do not apply here.
As such, both arguments are waived.
AFFIRMED.
7