Rosemary Garity v. Apwu National Labor Org. , 828 F.3d 848 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY GARITY, No. 13-15195
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-01109-PMP-CWH
APWU NATIONAL LABOR
ORGANIZATION, OPINION
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
Filed July 5, 2016
Before: Jerome Farris, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Bybee
2 GARITY V. APWU
SUMMARY*
Labor Law
The panel reversed the district court’s dismissal of
disability discrimination and retaliation claims brought
against a union under the Americans with Disabilities Act.
The district court held that the ADA claims were barred
by issue preclusion because of a ruling in a prior case that the
union had not breached its duty of fair representation.
Agreeing with the Seventh Circuit, the panel held that a prima
facie claim of disability discrimination against a union does
not require a showing of a breach of the duty of fair
representation. Accordingly, the plaintiff’s claims were not
barred by issue preclusion. The panel also held that the ADA
complaint was not barred by claim preclusion. It remanded
the case to the district court for further proceedings.
COUNSEL
Matthew O’Brien (argued) and Justin Beck (argued),
Certified Law Students, Pepperdine University School of
Law, Malibu, California; Jeremy B. Rosen, Horvitz & Levy
LLP, Encino, California; for Plaintiff-Appellant.
Michael R. Hall (argued) and Matthew A. Walker; Hall, Jaffe
& Clayton; Las Vegas, Nevada; for Defendant-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARITY V. APWU 3
OPINION
BYBEE, Circuit Judge:
Rosemary Garity, a clerk at the United States Postal
Service office in Pahrump, Nevada, suffers from a litany of
physical and emotional disabilities. Despite her willingness
to perform her job duties, Garity repeatedly complained to her
representatives at the American Postal Workers Union, AFL-
CIO (“APWU”) that postal service management refused to
accommodate her disabilities. Garity alleges that APWU,
rather than filing and processing her grievances, sided with
management, discriminating and retaliating against her
because of her disabilities.
Garity brought two complaints against APWU in federal
court, alleging a contractual breach of APWU’s duty of fair
representation in the first, and alleging a series of violations
of the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101 et seq., and Nevada state tort laws in the
second. After two different district court judges determined
that Garity’s complaints should proceed as independent
actions, one district court judge (Dawson, J.) dismissed
Garity’s first complaint, finding that, though APWU’s
behavior towards Garity may have been negligent, APWU’s
actions were not a breach of its duty of fair representation. In
light of this judgment, a second district court judge (Pro, J.)
tossed Garity’s second complaint, ruling that, because a prima
facie claim of disability discrimination against a union
necessarily required a showing of a breach of the duty of fair
representation, Garity’s ADA claims were barred by the issue
preclusion doctrine. Garity had failed to prove a required
element in her first complaint, the district court explained,
4 GARITY V. APWU
and there was no need to re-litigate that element in her second
complaint.
The question before us is whether a prima facie claim for
disability discrimination against a union necessarily requires
a showing that the union breached its duty of fair
representation. If so, the district court’s application of the
issue preclusion bar was proper and Garity’s ADA claims
fail; if not, Garity’s ADA claims survive. We endorse the
Seventh Circuit’s reasoning in Green v. American Federation
of Teachers/Illinois Federation of Teachers Local 604,
740 F.3d 1104 (7th Cir. 2014), and hold that a prima facie
disability discrimination claim against a union does not
require that a plaintiff demonstrate that the union breached its
duty of fair representation. Accordingly, Garity’s ADA
claims are not barred by issue preclusion, and we reverse and
remand to the district court for further proceedings.
I
A. Facts
Garity began working as a clerk at the United States
Postal Service office in Pahrump, Nevada in 2008, and served
as the “shop steward” of Local #7156—the Pahrump affiliate
of the APWU—from 2009 to 2011.1 Garity describes herself
as “a disabled individual” suffering from a range of “physical
and mental impairments” that include “heel spurs, chest pain,
chronic fatigue, sleep disturbance, osteoporosis[,] myalgia,
1
Our description of the facts is largely derived from Garity’s complaint.
We are to take these facts as true for the purposes of analyzing APWU’s
motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007).
GARITY V. APWU 5
muscle spasms and . . . cancer,” as well as “anxiety disorder,
major depressive disorder, [and] panic attacks.” Despite her
conditions, Garity asserts that she can “perform the essential
functions of many of the duties available” as long as Postal
Service management provides her with proper
accommodations.
In 2010, Debra Blankenship was appointed postmaster of
the Pahrump office. In response to perceived instances of
favoritism and disparate treatment observed under the new
leadership, Garity and other postal employees filed a hostile
work environment grievance. At around the same time, Kathi
Poulos was elected president of Local #7156, and Garity
alleges that, though Poulos acknowledged Garity’s grievance
as “valid,” she refused to process it. After Garity was unable
to attend a grievance meeting in Las Vegas in early 2011 due
to her disabilities, Poulos removed Garity from her shop
steward position and appointed herself to the position the next
day. As part of Poulos’s new duties as shop steward, she was
responsible for filing employment grievances raised by Garity
and other Local #7156 members with Postal Service
management.
In the months that followed, Garity forwarded a litany of
grievances to Poulos, alleging that management improperly
delayed the mail, sent her home early without pay, and
committed various acts of retaliation and harassment against
her. Garity informed Poulos that “the contract had been
violated” and reminded Poulos that it was her “job to
represent employees,” but alleged that Poulos “did not
investigate or file any of [her] grievances.” Because Poulos
“either wo[uld]n’t [file] or ha[d] agreed with management to
not file grievances,” Garity alleges in her complaint,
6 GARITY V. APWU
“[m]anagement [was] well aware that they c[ould] do
anything they want[ed] to [her] with no repercussions.”
According to Garity, conditions in the Pahrump post
office continued to deteriorate throughout 2011. In January,
Garity asked Poulos to file a series of grievances stemming
from an adverse disciplinary action taken against her by
management, but Poulos refused, stating that she “already had
too many grievances” to process and choosing instead to
withdraw roughly a dozen of Garity’s previously filed
grievances. In February, the Pahrump office’s management
convened a meeting to discuss work assignments that
accommodated Garity’s disability, but rather than finding her
appropriate tasks, post office management simply cut
Garity’s work hours. Stonewalled by Poulos, Garity
approached an alternate APWU shop steward to see if he
would file her grievances, but fared no better. And after
Poulos refused to file additional grievances, withdrew others,
and failed to represent her in the proceedings on still others,
Garity filed Equal Employment Opportunity Commission
(“EEOC”) and National Labor Relations Board (“NLRB”)
complaints against her union for discrimination in February
and March.
In April of 2011, Garity alleges that she was suspended
for thirty days after an incident in which Garity refused to go
into a room alone with a male employee against whom she
had pending sexual harassment charges. An altercation with
Blankenship ensued, and Poulos was called to the office.
Garity alleges that Poulos did not sufficiently defend her in a
three-page letter Poulos later wrote describing the incident,
and that the letter was in fact used to justify Garity’s
suspension. Garity complained about Local #7156’s actions
to the national APWU to no avail, and, after repeatedly
GARITY V. APWU 7
requesting additional disability accommodations, Garity was
fired from her position on June 11, 2011.
B. Procedural History
In July 2011, Garity filed two separate complaints against
APWU in federal court.2 Her first complaint (“Complaint
One”) alleged that APWU breached its duty of fair
representation by violating provisions of its collective
bargaining agreement. Garity, acting pro se, styled these
claims as “breach of contract” claims. This complaint was
assigned to the Honorable Kent Dawson of the District of
Nevada.
Garity’s second complaint—the one at issue here—was
assigned to the Honorable Philip Pro of the District of Nevada
(“Complaint Two”). In this complaint, Garity pleaded claims
for disability discrimination under Title VII of the Civil
Rights Act of 1964 and the ADA, Nevada state tort claims for
negligent retention and intentional infliction of emotional
distress, and claims for conspiracy to deprive her of rights
under 42 U.S.C. §§ 1985 and 1986.
In August 2011, Garity filed a “Motion to Keep Cases
Separated as Originally Filed,” explaining that her “claims of
discrimination and the tort claims clearly involve different
questions of law from breach of contract/failure to represent,
breach of the APWU Constitution, . . . etc.” Five days later,
the APWU moved to consolidate Garity’s two complaints
into a single case, arguing that though “the legal claims
differ, the facts alleged [in the two complaints] are virtually
2
Garity’s complaints were originally filed against both APWU and
Local #7156. The latter is no longer a party to this litigation.
8 GARITY V. APWU
identical.” In October 2011, in an unexplained order, Judge
Pro granted Garity’s motion and denied APWU’s motion.
Three months later, Judge Dawson also denied APWU’s
motion, finding that the “Defendants have failed to show that
both complaints contain common questions of law or fact
sufficient to justify consolidating them.” Accordingly, both
claims proceeded independently.
1. Complaint One
After giving Garity a chance to amend her complaint,
Judge Dawson granted APWU’s motion to dismiss Complaint
One with prejudice on July 18, 2012. The court found that
Garity’s “claims [were] an amalgam of legal conclusions”
that did not support the proposition that “Defendants
breached their duty of fair representation.” The court
recognized that the union is afforded wide latitude to attend
to its internal business and found that Garity’s “factual
allegations” suggested “at worst negligence.” Garity
appealed the court’s decision in Complaint One to this court,
and we affirmed Judge Dawson’s dismissal order in a
unanimous memorandum disposition. Garity v. APWU-AFL-
CIO, 585 F. App’x 383 (9th Cir. 2014) (mem.). The Supreme
Court denied Garity’s petition for a writ of certiorari. Garity
v. APWU-AFL-CIO, 136 S. Ct. 71 (2015) (mem.).
2. Complaint Two
After Garity filed an amended complaint including
additional factual details, Judge Pro granted in part and
denied in part APWU’s motion to dismiss. Beginning with
GARITY V. APWU 9
Garity’s ADA claims,3 the district court found that Garity had
stated a claim for disability discrimination. The court
explained that Garity had adequately alleged that
APWU—“motivated, at least in part, by animus towards
[Garity]’s disabilities or requests for accommodation”—
“refused to file grievances and joined in [the Postal Service’s]
discriminatory practices,” triggering a series of adverse
employment actions. The district court also determined that
Garity had “pled sufficient facts” to support her retaliation
claim, noting that she had raised the inference of a “causal
link” between protected activity, like filing union grievances,
and her suspension and termination. The district court,
however, granted APWU’s motion to dismiss as to Garity’s
hostile work environment claim, noting that, though Garity
had demonstrated that “she subjectively found her work
environment hostile and abusive,” she had not shown that a
“reasonable person” would agree or that any “mental abuse,
harassment, or bullying” was “based on her disability.”
3
Garity’s amended complaint pleads her disability discrimination claims
as Title VII violations, but disability is not a protected class under that
statute. See 42 U.S.C. § 2000e-2(c) (prohibiting discrimination by unions
based on “race, color, religion, sex, or national origin”). However, Garity
also references violations of the “ADA of 1990,” in her amended
complaint. “Because [Garity] appeared pro se in the district court, we [are
to] liberally construe [her] pleadings.” Hearns v. Terhune, 413 F.3d 1036,
1040 (9th Cir. 2005). Accordingly, as the district court did below, we will
treat Garity’s self-styled “Title VII” claims as discrimination claims under
the ADA. See 42 U.S.C. § 12111(2) (listing “labor organization[s]” as
covered entities under the ADA); see also § 12112(b) (outlining disability
discrimination claims under the ADA).
For clarity, we note that Garity alleged four theories of liability under
the ADA: disparate treatment (disability discrimination), failure to
accommodate, retaliation, and hostile work environment.
10 GARITY V. APWU
A few months later, APWU took another crack at Garity’s
complaint in a new motion to dismiss. Pointing to our
decision in Beck v. United Food and Commercial Workers
Union, Local 99, 506 F.3d 874 (9th Cir. 2007), APWU
argued that an element of a prima facie ADA claim against a
union is a “breach” of the “duty of fair representation,” and
because Judge Dawson previously dismissed Garity’s
contractual claims in Complaint One for failing to allege
precisely that element, Complaint Two was necessarily barred
by the doctrine of issue preclusion.
Despite its earlier ruling, the district court reversed course
in a brief order dismissing Complaint Two in full. The court
found that Garity’s ADA claims “must be dismissed because
each requires [Garity] to prove the . . . breach of the duty of
fair representation,” a showing that Judge Dawson, analyzing
the same “nucleus of operative facts,” had previously
determined that Garity had not made. The court did not cite
any case law to support its formulation of the elements of a
prima facie ADA claim against a union, nor did it explain
why it had not discussed the breach element in its earlier
ruling sustaining Garity’s ADA claims.4
Garity timely appealed to this court. After one round of
briefing, the Appellate Commissioner appointed Garity pro
bono counsel, authorized replacement briefing, and
specifically noted that “[i]n addition to any other issues the
parties address in their briefs, they shall address the elements
of a Title VII claim against a union in light of subsequent
4
The district court also dismissed Garity’s tort claims under Nevada
law, as well as her federal claims under 42 U.S.C. §§ 1985 and 1986. We
address those claims in an unpublished memorandum disposition filed
with this opinion.
GARITY V. APWU 11
clarification in the law.” Order at 2, Garity v. APWU Nat’l
Labor Org., No. 13-15195 (9th Cir. Sept. 10, 2014), ECF No.
24. We have jurisdiction under 28 U.S.C. § 1291.
II
“We review the district court’s grant of a motion to
dismiss de novo.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
Cir. 2005). “When ruling on a motion to dismiss, we accept
all factual allegations in the complaint as true and construe
the pleadings in the light most favorable to the nonmoving
party.” Id. “Unless 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) (per curiam).
We also review the district court’s ruling on issue
preclusion de novo. United States v. Smith-Baltiher, 424 F.3d
913, 919 (9th Cir. 2005).
III
Garity’s primary contention on appeal is that the district
court erred by dismissing her ADA claims against APWU on
issue preclusion grounds, or collateral estoppel. She asserts
that, because a disability discrimination claim against a union
does not require that a plaintiff demonstrate a breach of the
duty of fair representation by the union, her inability to make
such a showing on the contract claims in her first complaint
is not necessarily fatal to the ADA claims in her second
complaint. Before addressing Garity’s issue preclusion
argument, however, we begin by answering APWU’s
12 GARITY V. APWU
assertion that Garity’s entire second complaint should be
barred by the doctrine of claim preclusion.
A. Garity’s Second Complaint Is Not Barred by Claim
Preclusion
As a threshold matter, APWU argues that Garity’s second
complaint—the complaint at issue here—should have been
barred in its entirety by the doctrine of claim preclusion, or
res judicata. Because both of Garity’s complaints were
“predicated on discrimination and a general failure of the
APWU to represent [her],” APWU notes, “all of the grounds
in Garity’s Complaint [Two] could have been asserted in her
Complaint [One].” Appellee’s Br. 32. Put more simply,
APWU argues that because all of Garity’s causes of action
derive from the same factual foundation, she should not have
split them into two discrete complaints and should have
brought them in one consolidated action.5 We disagree.
“Claim preclusion ‘applies when there is (1) an identity
of claims; (2) a final judgment on the merits; and (3) identity
or privity between the parties.’” Cell Therapeutics, Inc. v.
Lash Grp. Inc., 586 F.3d 1204, 1212 (9th Cir. 2009) (quoting
Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002)).
5
The Federal Rules of Civil Procedure permit a party to “join, as
independent or alternative claims, as many claims as it has against an
opposing party.” Fed. R. Civ. P. 18(a). Garity could have brought all of
her claims in a single complaint. But Rule 18 is “permissive”; it is the
doctrine of claim preclusion that “focuses on what a party ought to have
litigated in the first action.” Larry L. Teply & Ralph U. Whitten, Civil
Procedure 622, 962–63 (3d ed. 2004). The question, then, is whether
Garity was obligated to bring her claims in a single complaint because a
decision in one suit would preclude the assertions of her claims in the
second suit.
GARITY V. APWU 13
Here, there is no dispute that the district court’s order
dismissing Complaint One on 12(b)(6) grounds was a final
judgment on the merits, see Stewart, 297 F.3d at 957, or that
the parties to each suit are identical. The application of the
claim preclusion doctrine, then, hinges on an analysis of
whether there is an identity—or equivalency—of claims
between Garity’s two complaints.
To determine if there is an “identity of claims,” we look
to four factors, “which we do not apply mechanistically”:
(1) whether the two suits arise out of the
same transactional nucleus of facts;
(2) whether rights or interests established in
the prior judgment would be destroyed or
impaired by prosecution of the second action;
(3) whether the two suits involve infringement
of the same right; and (4) whether
substantially the same evidence is presented
in the two actions.
Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th
Cir. 2005). Though all four factors are considered,
“[r]eliance on the transactional nucleus element is especially
appropriate because the element is ‘outcome determinative.’”
ProShipLine Inc. v. Aspen Infrastructures LTD, 609 F.3d 960,
968 (9th Cir. 2010) (quoting Mpoyo, 430 F.3d at 988). The
party asserting a claim preclusion argument “must carry the
burden of establishing all necessary elements.” Taylor v.
Sturgell, 553 U.S. 880, 907 (2008) (quoting 18 Wright &
Miller, Federal Practice and Procedure § 4405, at 83 (2d ed.
2002)). Here, that party is APWU.
14 GARITY V. APWU
Though APWU can quickly check-off the “same
evidence” factor,6 the other elements are not quite so clear-
cut. Turning to the first element, “[w]hether two suits arise
out of the ‘same transactional nucleus’ depends upon whether
they are related to the same set of facts and whether they
could conveniently be tried together.” ProShipLine, 609 F.3d
at 968 (emphasis in original) (second set of internal quotation
marks omitted). Here, two different district court judges
decided that Garity’s two complaints could not be
conveniently tried together. Indeed, as Judge Dawson
explained in denying APWU’s motion to consolidate, APWU
“failed to show that both complaints contain common
questions of law or fact sufficient to justify consolidating
them.” That said, district courts have “broad discretion” to
consolidate complaints, Inv’rs Research Co. v. U.S. Dist.
Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir.
1989); see also Fed. R. Civ. P. 42(a) (noting that a court
“may,” but is not required to, consolidate actions if they
“involve a common question of law or fact” (emphasis
added)), and a decision to refuse consolidation does not
necessarily bear on the applicability of the claim preclusion
doctrine. Additionally, there is no serious dispute that the
same nucleus of facts gave rise to both complaints—Garity
admitted as much by cutting and pasting her factual
allegations into both complaints. This element leans in favor
of APWU.
The “rights and interests” element strongly favors Garity.
APWU has an obvious interest in avoiding successive
litigation over claims arising from the same set of facts, and
6
Garity lifted substantial portions of her factual claims from her first
complaint and inserted them directly into her second complaint. The
evidence presented is not just “substantially the same”—it is identical.
GARITY V. APWU 15
the public has an interest in “avoiding inconsistent results and
preserving judicial economy.” Clements v. Airport Auth.,
69 F.3d 321, 330 (9th Cir. 1995). Here, however, the district
courts—both of them—found that judicial economy would be
served by keeping the cases separated and litigating them
independently. The question of whether Garity should be
forced to join her claims in a single suit was litigated and
decided against APWU. Two district courts independently
determined that Garity’s claims—her “rights and interests”—
in Complaint One were distinct from her “rights and
interests” in Complaint Two.
The “infringement of the same rights” element also favors
Garity. While our precedents do not offer a great deal of
clarification as to how this element should be analyzed, we
generally perform a basic matching exercise. See, e.g., Sidhu
v. Fletco Co., 279 F.3d 896, 900 (9th Cir. 2002) (explaining
that “rights asserted in the two actions [we]re different”
because they involved infringement of different provisions of
a contract). Garity’s first complaint alleges infringement of
her rights under the contract APWU members have with their
union, while her second complaint alleges infringement of her
right to be free from unlawful discrimination based on her
disability. Put simply, the claims here do not match. One
complaint sounds in contract, the other in federal anti-
discrimination laws and tort.
This four-factor test leaves us with something of a split
decision, but, on balance, the test leans hard in Garity’s
direction. The purpose of the claim preclusion doctrine is to
avoid successive litigation when all of a plaintiff’s claims
derive from a common factual core and can be efficiently and
effectively tried together. But implicit in the doctrine is the
assumption that the plaintiff actually had the chance to be
16 GARITY V. APWU
heard on all of her claims in the first proceeding. Indeed, as
the Supreme Court has explained, “invocation of res judicata
or claim preclusion” requires that “the first adjudication
offer[ed] a full and fair opportunity to litigate.” Kremer v.
Chem. Constr. Corp., 456 U.S. 461, 481 & n.22 (1982).
Here, Garity was not offered a full and fair opportunity in
the proceedings concerning Complaint One to litigate the
claims she included in Complaint Two because Judges
Dawson and Pro kept the claims separate. It would be an
odd outcome indeed that by (twice) beating back APWU’s
motion to consolidate her complaints, Garity unwittingly
stepped on a claim preclusion landmine by litigating
Complaint One independently. After reading two district
court orders explicitly stating that her two complaints were
sufficiently distinct as to warrant keeping them separated, we
cannot reasonably expect that Garity, acting pro se, would
have the wherewithal to request that the court reverse its
order and consolidate her complaints in order to fend off the
claim preclusion bar. As the Second Restatement of
Judgments point out, there is a general exception to the claim
preclusion doctrine when the court “has expressly reserved
the plaintiff’s right to maintain the second action.”7
7
APWU references our unpublished decision in Ramos v. Apfel,
205 F.3d 1352 (9th Cir. 1999) (unpublished table decision), for the
proposition that claim preclusion can still apply when district court judges
refuse to consolidate cases. First, this citation to pre-2007 unpublished
authority violates our rules, and we need not consider it. See 9th Cir. R.
36-3(c). Second, that case involved a litigant’s efforts to have precisely
the same ALJ ruling reviewed by two different district judges after a third
district judge did not catch that the litigant was seeking “duplicate
review.” That situation is in no way analogous to the instant case.
GARITY V. APWU 17
Restatement (Second) Judgments § 26(1)(b). That is
precisely what happened here.
The “full and fair opportunity to litigate” requirement
operates as a safety valve to give courts some leeway in the
application of the claim preclusion doctrine. That leeway is
warranted here: Garity should not be faulted for relying on
the decisions of two district court judges mandating that her
complaints be kept separate. Garity is not attempting to take
a second bite at her first apple; she is requesting a first bite at
her second apple—an apple two district court judges told her
to keep in a separate basket. We reject APWU’s claim
preclusion argument, and hold that Garity’s second complaint
is not barred by the adverse judgment she received as to her
first complaint.
B. Garity’s Second Complaint Is Not Barred by Issue
Preclusion Because a Claim of Disability Discrimination
Against a Union Does Not Require a Showing of a Breach
of the Duty of Fair Representation
Even though we find that Garity’s second complaint
survives APWU’s claim preclusion challenge, before her
ADA causes of action in that complaint can be considered on
their merits, those claims must also survive APWU’s issue
preclusion challenge.
APWU also cites Yapp v. Excel Corp., 186 F.3d 1222 (10th Cir.
1999). Yapp is also quite different from the case at bar. There, the
plaintiff (assisted by counsel) signed a settlement agreement with the
defendant to resolve his first complaint, aware that he might trigger a
claim preclusion issue as to his second complaint. Id. at 1229. As the
Tenth Circuit explained, “Yapp chose to forego a full and fair opportunity
to litigate [his second claim] in order to satisfy his immediate appetite” for
a settlement. Id. at 1230. Garity made no such choice here.
18 GARITY V. APWU
APWU argues that a prima facie disability discrimination
claim against a union requires a plaintiff to demonstrate that
the union breached its duty of fair representation; because
Judge Dawson ruled that Garity had failed to make that
showing as to her breach of contract claims in Complaint
One, APWU asserts—and the district court held—that she is
barred by the doctrine of issue preclusion from relitigating
that precise issue in Complaint Two. In support of this
proposition, APWU directs us to our decision in Beck v.
United Food and Commercial Workers Union, Local 99,
506 F.3d 874 (9th Cir. 2007), and argues that we have already
addressed the elements of a discrimination claim against a
union and have come down in its favor.
For her part, Garity argues that Beck leaves this question
open, and asks us to side with the Seventh Circuit’s recent
decision in Green v. American Federation of
Teachers/Illinois Federation of Teachers Local 604, 740 F.3d
1104 (7th Cir. 2014), where that circuit held that a breach of
the duty of fair representation was not part of a prima facie
Title VII discrimination claim against a union. Because,
Garity argues, the breach element litigated adversely to
Garity in Complaint One has no bearing on her ADA claims
in Complaint Two, issue preclusion does not apply.8
8
There is no dispute that if Garity’s ADA claims require her to show
that APWU breached its duty of fair representation, she loses on issue
preclusion grounds. Issue preclusion, or collateral estoppel, “bars
successive litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior judgment,
even if the issue recurs in the context of a different claim.” Taylor,
553 U.S. at 892 (internal quotation marks omitted). To determine if the
issue preclusion doctrine applies, we apply a three-prong test, asking if
“(1) the issue necessarily decided at the previous proceeding is identical
to the one which is sought to be relitigated; (2) the first proceeding ended
GARITY V. APWU 19
Garity gets the better of the argument. We agree that
Beck does not control our decision here, as it did not add a
“breach of the duty of fair representation” element to prima
facie claims under anti-discrimination statutes like Title VII
or the ADA. Nor do we think that such an element should be
included. As the Seventh Circuit’s persuasive decision in
Green explains, nothing in Title VII suggests that union
members must demonstrate a breach of the union’s
contractual duty to provide fair representation before stating
a claim for racial, religious, or gender discrimination under
Title VII. Green, 740 F.3d at 1105 (analyzing a prima facie
claim under 42 U.S.C. § 2000e-2(c)). And because we have
long analyzed anti-discrimination statutes like Title VII and
the ADA in parallel fashion, we hold that the Green court’s
analysis applies with equal force to union members with
disabilities seeking to challenge their union’s discriminatory
actions under the ADA.9 Accordingly, Garity’s ADA claims
with a final judgment on the merits; and (3) the party against whom [issue
preclusion] is asserted was a party or in privity with a party at the first
proceeding.” Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011) (internal
quotation marks omitted) (alteration in original).
Here, Judge Dawson specifically determined that Garity’s allegations
in Complaint One did “not support claims that [APWU] breached [its]
duty of fair representation,” and we affirmed that ruling, Garity, 585 F.
App’x 383. If a breach of the duty of fair representation is a necessary
element for Garity’s ADA claims in Complaint Two, Judge Dawson’s
earlier ruling on that element would have preclusive effect and Garity’s
ADA claims would fail.
9
We recognize that both Beck and Green addressed claims for Title VII
violations against unions rather than claims under the ADA as we have
here. See Beck, 506 F.3d at 876; Green, 740 F.3d at 1105. However, due
to the similarities in language and purpose between the two statutes, courts
around the country—unless they find a good reason to do otherwise—
generally use Title VII precedent to interpret ADA claims. See, e.g., T.B.
20 GARITY V. APWU
in her second complaint are not barred by issue preclusion
because she need not prove a breach of the duty of fair
representation to make out a prima facie case of disability
discrimination.
ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 472–73
(9th Cir. 2015) (“We apply the Title VII burden-shifting framework, as
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
to retaliation claims under the ADA.”); Walsh v. Nev. Dep’t of Human
Res., 471 F.3d 1033, 1038 (9th Cir. 2006) (“The statutory scheme and
language of the ADA and Title VII are identical in many respects. . . .
Title I of the ADA invokes the same powers, remedies and procedures as
those set forth in Title VII.” (internal quotation marks omitted)); Flowers
v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 233 (5th Cir. 2001) (“We
conclude that the language of Title VII and the ADA dictates a consistent
reading of the two statutes.”); Miranda v. Wis. Power & Light Co., 91
F.3d 1011, 1017 (7th Cir. 1996) (“[I]n analyzing claims under the ADA,
it is appropriate to borrow from our approach to the respective analog
under Title VII.”); cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 285–97
(2002) (outlining the similarities in the EEOC’s enforcement powers
under Title VII and the ADA, and using Title VII precedent to analyze
ADA claims). But see Brown v.City of Tucson, 336 F.3d 1181,
1188–91(9th Cir. 2003) (declining to apply “Title VII’s burden-shifting or
hostile environment frameworks” to plaintiff’s claim under 42 U.S.C.
§ 12203(b) because the Fair Housing Act served as a better textual
analog).
In light of this weight of authority, we do not believe that whether
discrimination by a union is based on the plaintiff’s race or gender or
whether it is based on the plaintiff’s disability makes a meaningful
difference to the analysis at hand. Indeed, both of the parties vigorously
argue that a Title VII decision should answer this ADA question (Green
for Garity, Beck for APWU). Accordingly, though our decision today
answers only the question before us—whether a prima facie disability
discrimination claim brought against a union under the ADA requires
proof that the union breached its duty of fair representation—our
reasoning is informed and supported by an analysis of the same question
in the Title VII context.
GARITY V. APWU 21
1. Our decision in Beck did not hold that breach of the
duty of fair representation is an element in a Title VII
discrimination claim brought against a union
In Beck, we addressed a Title VII claim brought by
Cheryl Beck, an employee at a grocery store, against the
union that represented her. 506 F.3d at 877–78. In a
situation quite similar to this one, Beck argued that her
union’s refusal to arbitrate her grievances against the grocery
store was due to discrimination on the basis of her sex, a
violation of Title VII. Id. In addition to her discrimination
claim, Beck also brought an independent “duty of fair
representation claim” against her union. Id. at 878.
We first analyzed Beck’s breach of the duty of fair
representation claim. Noting that the “duty of fair
representation” is “imposed on labor organizations because
of their status as the exclusive bargaining representative for
all of the employees in a given bargaining unit,” id. at 879(internal quotation marks omitted), we found that Beck’s
union “engaged in arbitrary conduct that substantially injured
a member,” a breach of the union’s legal and contractual
duties to its members, id. at 880–81.
Next, we moved to Beck’s Title VII claim. We began by
declaring that “[a] union violates Title VII if it deliberately
declines to pursue a member’s claim because of the member’s
gender.” Id. at 882. We also noted that the “standard burden-
shifting framework established by the Supreme Court in
McDonnell Douglas, . . . applie[d] to a Title VII action
against a union,” and explained that “a union member can
make a prima facie claim of discrimination by introducing
evidence that the member ‘was singled out and treated less
favorably than others similarly situated on account of race or
22 GARITY V. APWU
any other criterion impermissible under the statute.’” Id.(quoting Gay v. Waiters’ & Dairy Lunchmen’s Union, Local
No. 30, 694 F.2d 531, 537 (9th Cir. 1982)). Nowhere in our
extensive discussion of the background of Title VII law in a
union context did we discuss a “duty of fair representation”
element or cite to any cases that include the element as part
of a prima facie Title VII claim. See id. at 882–84.
It is not until we describe the district court’s analysis that
the first mention of an additional element is made. Noting
that the district court was “[r]elying on EEOC v. Reynolds
Metals Co., 212 F. Supp. 2d 530, 539–40 (E.D. Va. 2002),”
we quoted the district court exactly:
[T]he district court stated, “To establish a
Title VII sex discrimination claim against a
union, an employee must show that: (1) the
employer violated the collective bargaining
agreement with respect to the employee;
(2) the union breached its duty of fair
representation by allowing the breach to go
unrepaired; and (3) there is some evidence of
gender animus among the union.”
Id. at 884. We also recognized the provenance of the three-
factor test used by the district court, explaining that it was
“derived from a Seventh Circuit test for establishing a prima
facie case of discrimination, see Bugg v. Int’l Union of Allied
Indus. Workers of Am., 674 F.2d 595 (7th Cir. 1982),” and
noted that the Seventh Circuit’s Bugg test was “generally
consistent with the McDonnell Douglas framework.” Beck,
506 F.3d at 884.
GARITY V. APWU 23
And that is the end of our analysis on the issue in Beck.
We did not delve into whether the Bugg test was the
controlling test in our circuit, nor did we cite any of our cases
that apply the Seventh Circuit’s Bugg test.10 In all other
respects, we considered the action for breach of the duty of
fair representation and the action for violation of Title VII
separately. See Beck, 506 F.3d at 886. If we were
establishing Bugg’s preeminence in this circuit, we would
have been more explicit about what we were doing; a covert
smuggling of a sister circuit’s test into our case law through
a reference to the district court’s citation of an out-of-circuit
district court case seems unlikely. The better reading of our
Beck decision is that we were explaining how the district
court reached its outcome, addressing out-of-circuit precedent
in an exploratory or academic fashion, and holding that,
because Beck had already proven a breach of the duty of fair
representation on a separate claim, whether or not that
element was included in the Title VII prima facie case had no
bearing on her ultimate success under that statute. We had no
need to parse the Seventh Circuit’s additional element
because, in Beck, the nature of the violation of the duty of fair
representation was also sufficient to prove a Title VII
violation under the traditional McDonnell Douglas
framework. See 506 F.3d at 884 (observing that the district
10
Nor could we have, because such cases simply do not exist. Aside
from Beck’s discussion of Bugg, the Seventh Circuit’s former test makes
an appearance in only one of our cases, an unpublished memorandum
disposition from 1994: Sanders v. Los Angeles Unified School District,
42 F.3d 1402 (9th Cir. 1994) (unpublished table decision). There we
stated that Bugg “set out a three-pronged test for establishing a prima facie
claim of discrimination against a union,” but we applied that test to the
plaintiff’s claim under 42 U.S.C. § 1981. 42 F.3d at *1. We then applied
a test derived from McDonnell Douglas, not Bugg, to the plaintiff’s Title
VII claim. Id. at *2.
24 GARITY V. APWU
court had “held that the union’s ‘failure to repair the breach
[of the collective bargaining agreement] was due to a
discriminatory motivation based on plaintiff’s sex’”).
Our decision in Golden v. Local 55 of the International
Association of Firefighters, 633 F.2d 817 (9th Cir. 1980),
lends credence to our reading of Beck. There, Black
firefighters brought actions against their union for violation
of Title VII and breach of the duty of fair representation, and
we found that “[t]he same facts underl[ay] [both] the
firefighters’ Title VII . . . and ‘unfair representation’ claims.”
Golden, 633 F.2d at 819. We found no evidence that the
union had breached its duty of fair representation, id. at
821–22; 823–24, yet we also gave a lengthy analysis of
plaintiffs’ Title VII claims, id. at 822–23. If “breach of the
duty of fair representation” was a necessary element of a Title
VII claim against a union, we would have had no need to
separately offer that Title VII analysis—once we established
that Local 55 did not breach the duty, the case would have
been over. Had Beck required proof of a breach of the duty
of fair representation before a plaintiff could bring a Title VII
action against a union, it would have added a new element to
the test set out in Golden, and thus undermined that decision.
See also Pejic v. Hughes Helicopters, Inc., 840 F.2d 667,
671–74 (9th Cir. 1988) (treating separately Title VII and duty
of fair representation claims against a union).
Accordingly, we do not read Beck to require a plaintiff
bringing a Title VII discrimination claim—or, by analogy, an
ADA disability discrimination claim—against a union to
prove a breach of the union’s duty of fair representation in his
prima facie case, nor can we find any other circuit precedent
that requires as much. Rather, we take Beck at its word that
the key inquiry in a Title VII case against a union is whether
GARITY V. APWU 25
the union “deliberately declines to pursue a member’s claim
because of” a protected classification. 506 F.3d at 882. As
such, we hold that Beck does not compel a different result
than we reach here.
2. The Seventh Circuit’s decision in Green
We think that the better rule is set out in the Seventh
Circuit’s recent decision in Green v. American Federation of
Teachers/Illinois Federation of Teachers Local 604, in which
that court rejected its prior analysis in Bugg and held that a
“claim against a labor organization under [Title VII] does not
depend on showing that . . . the union violated any state
statute or contract.” 740 F.3d at 1107. The court explained
that “the application of Title VII to employers does not
depend on a statute or contract outside of Title VII,” and that
“[n]othing in the text or genesis of Title VII suggests that
claims against labor organizations should be treated
differently.” Id. at 1105 (emphasis added). To support its
holding, the Green court looked to the text of the statute,
discussed the history and purpose of Title VII, and referred to
Supreme Court precedent setting forth the prima facie
elements of a Title VII claim. See id. at 1105–07.
First, Green noted that Congress explicitly applied Title
VII to unions by way of § 2000e-2(c). Id. at 1105–06; see
also 42 U.S.C. § 2000e-2(c) (“It shall be an unlawful
employment practice for a labor organization (1) to exclude
or to expel from its membership, or otherwise to discriminate
against, any individual because of his race, color, religion,
sex, or national origin . . . .”). The court explained that when
the law was enacted in 1964, “some states had laws
authorizing (even requiring) employers and unions to
discriminate against blacks,” and “[m]any unions had
26 GARITY V. APWU
negotiated collective bargaining agreements” with racially
discriminatory elements. Green, 740 F.3d at 1105. A
“principal objective of the federal statute,” then, “was to
require labor organizations to disregard those statutes and
contracts and to end racial differences in treatment.” Id. at
1106.
With Title VII’s anti-discriminatory purpose front-of-
mind, the Green court found that premising Title VII’s
applicability on whether a union had violated a contract or
statute in addition to committing a discriminatory act would
render the statute “pointless.” Id. The Green court set out the
problem succinctly:
Unless a contract, or some other statute, gave
the plaintiff an entitlement, Title VII would
do nothing. Yet if a union has, and violates,
such a duty, then a remedy may be had under
that statute or contract. Title VII would be
otiose, and claims of discrimination against
unions would be either unavailing or
unnecessary.
Id. Put differently, if a Title VII claim required a breach of
contract or a violation of some statutory duty, the plaintiff
could simply sue under the contract or statute, rendering Title
VII superfluous. The court then observed that the suggestion
in its prior cases—including Bugg—that a plaintiff must show
a violation of the duty of fair representation in order to
sustain a Title VII action against a union “conflate[d] Title
VII with the elements of a hybrid breach-of-contract/duty-of-
fair-representation claim against an employer and union
under 29 U.S.C. § 185.” Id. Disapproving Bugg, the court
GARITY V. APWU 27
decided that “[t]his approach [did] not bear any evident
relation to Title VII,” and “withdr[e]w the language.” Id.To bolster its holding, the Seventh Circuit highlighted
how absurd the union’s argument would be in other contexts.
See id. at 1105. For example, if a Title VII claim relied on
breach of a contract, how could a prospective employee ever
bring a claim against a prospective employer for racially
biased hiring practices? Obviously no contract has been
formed between the two parties because the employee was
never hired, but Title VII certainly covers this interaction.
Similarly, if an employer and employee have an at-will
employment contract, the employer has not violated the terms
of the contract by firing the employee on account of race.
But again, there is no dispute that Title VII would provide the
employee relief. There is no reason, the Seventh Circuit
asserted, to treat claims against a union any differently. Id.Next, the Green court pivoted to the text of Title VII and
the Supreme Court’s precedent setting forth the elements of
a prima facie Title VII claim. See id. at 1105–06. A reading
of the statutes “forbid[ding] discrimination by any labor
organization”11 and “forbid[ding] retaliation against a person
11
42 U.S.C. § 2000e-2(c) (“It shall be an unlawful employment practice
for a labor organization (1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of his race,
color, religion, sex, or national origin; (2) to limit, segregate, or classify
its membership or applicants for membership, or to classify or fail or
refuse to refer for employment any individual, in any way which would
deprive or tend to deprive any individual of employment opportunities, or
would limit such employment opportunities or otherwise adversely affect
his status as an employee or as an applicant for employment, because of
such individual’s race, color, religion, sex, or national origin; or (3) to
28 GARITY V. APWU
who has asserted rights under Title VII”12 unearths no
mention of a contractual breach or statutory violation that
union members must prove. See Green, 740 F.3d at 1105.
Nor does an analysis of McDonnell Douglas’s well-known
roadmap of a Title VII prima facie claim reveal such
requirement.13 Though the Seventh Circuit recognized that
“courts regularly have restated or modified the elements [of
a Title VII claim] to cover new situations” in the forty years
since the McDonnell Douglas decision, it noted that a court
is “not authorized to add to that framework in a way that
causes Title VII as administered to include elements missing
from Title VII as enacted.” Green, 740 F.3d at 1106–07.
Demanding that a plaintiff show that “the union violated any
state statute or contract . . . cannot properly be added as part
of the prima facie case.” Id. at 1107. We agree.
cause or attempt to cause an employer to discriminate against an
individual in violation of this section.”)
12
42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice
for an employer to discriminate against any of his employees or applicants
for employment, for an employment agency, or joint labor-management
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate against any member
thereof or applicant for membership, because he has opposed any practice
made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.”)
13
411 U.S. at 802 (A Title VII plaintiff must show “(I) that he belongs
to a [protected class]; (ii) that he applied and was qualified for a job for
which the employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek applications
from persons of complainant’s qualifications.”).
GARITY V. APWU 29
3. Green’s application to Garity’s ADA claims
We are persuaded by the Green court’s decision that a
Title VII claim against a union does not include an extra-
textual “breach of the duty of fair representation” element,
and see no reason why the Seventh Circuit’s analysis should
not apply with equal force to the ADA claim before us here.
Like Title VII, the ADA was promulgated to combat
discrimination in the workplace,14 and indeed, the statute
notes that “unlike individuals who have experienced
discrimination on the basis of race, color, sex, national origin,
[or] religion”—the groups protected by Title VII—
“individuals who have experienced discrimination on the
basis of disability have often had no legal recourse to redress
such discrimination.” 42 U.S.C. § 12101(4).15 Like Title VII,
the ADA includes labor organizations as a covered entity.
Compare 42 U.S.C. § 2000e-2(c) with 42 U.S.C. § 12111(2).
Like Title VII, the ADA does not refer to any element that
applies only to claims brought by union members against
their unions. Compare 42 U.S.C. § 2000e-2(c) (Title VII
discrimination) with 42 U.S.C. § 12112 (ADA
discrimination); also compare § 2000e-3(a) (Title VII
14
See George Rutherglen, Title VII as Precedent: Past and Prologue for
Future Legislation, 10 Stan. J. of C.R. & C.L. 159, 166–67 (2014)
(describing the ADA as a “descendant[] of Title VII” that made Title VII’s
“prohibitions against discrimination on the basis of race, sex, national
origin, color, and religion applicable to discrimination on the basis of . . .
disability”).
15
§ 12101(4) also notes that “individuals who have experienced
discrimination on the basis of . . . age” have “legal recourse to redress
such discrimination.” Workplace discrimination on the basis of age was
addressed by the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621 et seq.
30 GARITY V. APWU
retaliation) with § 12203(a) (ADA retaliation). And, most
importantly, like the prima facie Title VII claim outlined by
the Supreme Court in McDonnell Douglas, the prima facie
ADA claims for disability discrimination and retaliation
developed in this circuit do not include a “breach of the duty
of fair representation” element.16
Just as the Seventh Circuit explained in Green, we are not
authorized to add another element to a prima facie claim
under the ADA, especially when the legislature and our court
have both already spoken so clearly on the issue. Nor would
we even if we could. If an ADA claim against a union
required that the plaintiff show a breach of contract—namely
that the union had breached its duty of fair representation to
its member—the plaintiff would have no need to sue under
the ADA, as she could simply sue for breach of contract. See
Green, 740 F.3d at 1106. It makes no sense to design a set of
prima facie elements that renders the underlying claim
unnecessary.
APWU’s argument to the contrary confuses the goals of
anti-discrimination laws, like Title VII and the ADA, with the
purposes of labor laws, like § 301 of the Labor Management
Relations Act of 1947, 29 U.S.C. § 185, and the National
Labor Relations Act, 29 U.S.C. § 151 et seq. APWU, quite
correctly, explains that federal labor laws impose upon unions
16
See Snead v. Metro. Prop. & Cas. Ins., 237 F.3d 1080, 1087 (9th Cir.
2001) (“[T]o establish a prima facie case of discrimination under the ADA
she must show that she: (1) is disabled; (2) is qualified; and (3) suffered
an adverse employment action because of her disability.”); see also Pardi
v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004) (“To establish
a prima facie case of retaliation under the ADA, an employee must show
that: (1) he or she engaged in a protected activity; (2) suffered an adverse
employment action; and (3) there was a causal link between the two.”).
GARITY V. APWU 31
a “responsibility and duty of fair representation” to their
members. Hines v. Anchor Motor Freight, Inc., 424 U.S.
554, 563–65 (1976) (internal quotation marks omitted).
Because federal law affords unions a “wide range of
reasonableness” and “broad authority,” see id. at 563–64
(internal quotation marks omitted), this duty is breached only
by conduct that is “arbitrary, discriminatory, or in bad
faith”—a rather deferential standard, Vaca v. Sipes, 386 U.S.
171, 190 (1967). And indeed that deferential standard
worked in APWU’s favor here: Garity lost her breach of the
duty of fair representation claim before the district court and
this court.
But anti-discrimination statutes like the ADA cannot be
read to parrot a cause of action that already exists under
federal labor laws. Title VII and the ADA were enacted
decades after those union-boosting laws and imposed
additional affirmative responsibilities on unions. Their
plaintiff-friendly pleading standards—essentially, to make
out a prima facie case under Title VII, the claimant need only
make a series of factual assertions before the burden shifts to
the defendant, see McDonnell Douglas, 411 U.S. at802–03—make clear that the free hand unions have in other
labor matters does not extend to discrimination suits. Unions
are uniquely knowledgeable when it comes to collective
bargaining agreements and employment contracts, and the
law affords them some latitude when adjudicating disputes
arising from those contracts; there is no reason to grant them
the same deference when it comes to determining if unions
discriminated against their members on the basis of a
protected classification like disability. What the cases
demonstrate is that a plaintiff may have an easier path to
proving a Title VII or an ADA claim when she can also show
that the union has violated its duty of fair representation. See,
32 GARITY V. APWU
e.g., Beck, 506 F.3d at 884–85. What this case also shows,
however, is that the converse is not necessarily true: A
plaintiff may still have a Title VII or an ADA claim even if
she can’t prove a violation of the labor laws.
Accordingly, we reverse the district court’s order
dismissing Garity’s ADA claims on issue preclusion grounds,
and remand for further proceedings as to her discrimination
and retaliation claims.17 We do not pass on the merits of
these claims, but note that, prior to the district court’s issue
preclusion order, it had determined that Garity had proffered
sufficient evidence to survive APWU’s motion to dismiss.
IV
The judgment of the district court with respect to Garity’s
claims for disability discrimination and retaliation under the
ADA is reversed, and the case is remanded to the district
court for further proceedings. Considering our judgment in
this opinion and the accompanying memorandum disposition,
the parties shall bear their own costs on appeal.
REVERSED AND REMANDED.
17
Garity also argues that she has properly stated an ADA claim against
APWU for failure to accommodate her disabilities. See Allen v. Pac. Bell,
348 F.3d 1113, 1114 (9th Cir. 2003) (per curiam). Because we are unsure
if the district court passed on this claim in the first instance, we remand it
to the district court for further proceedings. We address the district court’s
dismissal of Garity’s ADA claim for hostile work environment in a
separate unpublished memorandum filed with this opinion.