Smith v. United Parcel Service, Inc. , 433 F. App'x 623 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
KEVIN R. SMITH, No. 10-15563
Plaintiff - Appellant, D.C. No. 2:08-cv-01313-RCJ-RJJ
v.
MEMORANDUM *
UNITED PARCEL SERVICE, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted April 13, 2011
Pasadena, California
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Kevin R. Smith appeals the district court's adverse grant of summary
judgment in his action against United Parcel Service, Inc. ('UPS') alleging
violations of federal and state law. Smith also appeals the district court's denial of
his motions to striµe affidavit evidence and to impose sanctions for spoliation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
evidence. We have jurisdiction pursuant to 28 U.S.C. y 1291. We affirm in part,
reverse in part, and remand.1
I
'In order to prevail in a Title VII case, the plaintiff must establish a prima
facie case of discrimination. If the plaintiff succeeds in doing so, then the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its
allegedly discriminatory conduct. If the defendant provides such a reason, the
burden shifts bacµ to the plaintiff to show that the employer's reason is a pretext
for discrimination.' Vasquez v. Cnty. of L.A., 349 F.3d 634, 640 (9th Cir. 2004).
'A plaintiff can show pretext directly, by showing that discrimination more liµely
motivated the employer, or indirectly, by showing that the employer's explanation
is unworthy of credence.' Id. at 641. 'To show pretext using circumstantial
evidence, a plaintiff must put forward specific and substantial evidence challenging
the credibility of the employer's motives.' Id. at 642. Here, the district court gave
summary judgment to UPS on Smith's Title VII discrimination claim based on its
conclusion that, even if Smith could maµe out a prima facie case for
discrimination, UPS had provided a legitimate, non-pretextual reason for its
1
Because the facts are µnown to the parties, we repeat them only as
necessary to explain our decision.
2
decision not to reinstate Smith. We agree. The district court's determination that
UPS's reason for not reinstating Smith--namely, that a panel composed of union
and UPS representatives reasonably concluded that Smith was the aggressor in a
fight with a fellow employee--was legitimate and that Smith did not show that it
was a pretext for discrimination.
It is significant for our evaluation that, at his panel-level hearing, Smith did
not allege or present evidence that his termination was race-based. Similarly, when
complaining about harassment, he did not say it was based on race. And also,
when filing his grievance about his termination, he did not suggest discrimination
based on race. Nor has he shown any evidence that the union or UPS
representatives at his panel-level hearing had or disclosed racial bias. The panel's
decision not to reinstate Smith after concluding that Smith was the aggressor was a
reasonable or permissible conclusion, even if it could be challenged factually, and
there is no evidence that UPS has reinstated any non-African-American employees
after they were reasonably deemed to be an aggressor. Because the panel was
justified in deciding that Smith was the aggressor based on the evidence before it,
Smith cannot show that panel's decision is unworthy of credence or more liµely
than not motivated by discriminatory animus. The district court correctly granted
summary judgment for UPS on the Title VII claim.
3
II
The district court erred, however, in concluding that Smith's claims for
negligent supervision and training were preempted by y 301 of the Labor
Management Relations Act, 29 U.S.C. y 185. In his complaint, Smith contends
that UPS owed him a duty to supervise its employees properly, to exercise due care
to prevent harm to him from its employees, and to train its employees to comply
with the law. He claims that UPS breached that duty by, among other things,
failing to respond to his complaints of harassment, and that UPS's breach
proximately caused him 'harm, threat of harm, fear, anxiety, harassment and
retaliation.' Because these state law claims concern only common law duties and
involve conduct that tooµ place before Smith's participation in the union grievance
process, they do not directly implicate the collective-bargaining agreement and are
not preempted by y 301.
Congress enacted y 301 to ensure that 'doctrines of federal labor law
uniformly . . . prevail over inconsistent local rules.' Local 174, Teamsters v. Lucas
Flour Co., 369 U.S. 95, 104 (1962). Accordingly, 'the pre-emption rule has been
applied only to assure that the purposes animating y 301 will be frustrated neither
by state laws purporting to determine questions relating to what the parties to a
labor agreement agreed . . . , nor by parties' efforts to renege on their arbitration
4
promises by relabeling as tort suits actions simply alleging breaches of duties
assumed in collective-bargaining agreements.' Livadas v. Bradshaw, 512 U.S.
107, 122-23 (1994) (internal quotation marµs and citation omitted). Section 301
'preempts only claims founded directly on rights created by collective-bargaining
agreements, and also claims substantially dependent on analysis of a collective-
bargaining agreement.' Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689
(9th Cir. 2001) (en banc) (internal quotation marµs omitted). A 'claim is not
preempted so long as it may be litigated without reference to' the collective-
bargaining agreement, and preemption is not appropriate where the court must
simply 'looµ to' a collective-bargaining agreement 'to discern that none of its
terms is reasonably in dispute.' Id. at 690, 692.
Contrary to the district court's conclusion on which its preemption holding
was premised, in our view, Smith's negligent training and supervision claims do
not require consideration of the applicable collective-bargaining agreement. First,
the harm alleged by Smith is not his ultimate termination--the review of which
might implicate the collective-bargaining agreement--but rather the harassment,
fear, and anxiety that Smith claims to have experienced in the months preceding
his termination and that UPS allegedly did not prevent despite Smith's complaints.
Second, the UPS employees whose conduct allegedly harmed Smith were the
5
managers who did not respond to Smith's concerns about harassment. Because
UPS managers are not covered by any collective-bargaining agreement, it is not
necessary to refer to such an agreement to assess Smith's negligent supervision and
training claims. Because Smith's fact-intensive state law claims are not preempted,
we reverse and remand for the district court to exercise its discretion in deciding
whether to assess the merits of Smith's state law claims or to 'decline jurisdiction
over the state claims and dismiss them without prejudice.'2 See Wade v. Reg'l
Credit Ass'n, 87 F.3d 1098, 1101 (9th Cir. 1996).
III
Federal Rule of Civil Procedure 26(e)(1) requires a party to supplement or
correct its interrogatory responses upon learning that they are incomplete or
incorrect. If a party fails to supplement a response where required, 'that party is
not allowed to use that information . . . to supply evidence on a motion, at a
hearing, or at trial, unless the failure . . . is harmless.' Fed. R. Civ. P. 37(c)(1).
Smith contends that the district court erred in denying his motion to striµe evidence
2
Smith will be able to refile his claims in state court if the district court, on
remand, elects to dismiss them for lacµ of subject matter jurisdiction. See Nev.
Rev. Stat. y 11.500 ('[I]f an action that is commenced within the applicable period
of limitations is dismissed because the court lacµed jurisdiction over the subject
matter of the action, the action may be recommenced in the court having
jurisdiction within: (a) The applicable period of limitations; or (b) Ninety days
after the action is dismissed, whichever is later.').
6
that a particular UPS employee received Title VII-related training, information that
UPS submitted with its summary judgment motion but had not disclosed in
response to Smith's interrogatories. The district court concluded that UPS's failure
to supplement its interrogatory responses was harmless because UPS supplied
Smith with relevant training guides and policies in its initial disclosures, and
Smith, who bears the burden to show a lacµ of training, did not depose the UPS
employee about his training. We hold that the district court did not abuse its
discretion in denying Smith's motion to striµe on these grounds. See El Pollo
Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (stating standard of
review).
IV
Nor did the district court abuse its discretion in declining to impose
sanctions on UPS for its alleged willful spoliation of evidence. See Merricµ v.
Paul Revere Life Ins. Co., 500 F.3d 1007, 1014 (9th Cir. 2007) (stating standard of
review). The district court did not clearly err in finding that UPS lacµed a culpable
state of mind, a predicate finding to its exercise of inherent authority to impose
sanctions. See id.; Unigard Sec. Ins. Co. v. Laµewood Eng'g & Mfg. Corp., 982
F.2d 363, 368 n.2 (9th Cir. 1992) (observing that a district court may impose
sanctions upon a finding of wilfulness, fault, or bad faith on the part of the
7
offending party). UPS was under no duty to maintain the minutes Smith requested.
Rather, as the district court found, the minutes are produced and maintained by the
union, who simply sends a copy to UPS so the company may review them for
accuracy before the minutes are approved at the next month's panel-level meeting.
There is therefore no evidence that UPS had a culpable state of mind when it
destroyed its copy of the minutes, an action it taµes in the usual course.
Moreover, UPS destroyed its evidence before Smith made any allegation
that might have alerted UPS to its potential relevance, and '[a] party's destruction
of evidence qualifies as willful spoliation if the party has some notice that the
documents were potentially relevant to the litigation before they were destroyed.'
Leon v. IDÈ Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (internal quotation
marµs and emphasis omitted)). That Smith did not seeµ the allegedly spoliated
evidence from the union and that the evidence does not appear to assist Smith's
case also support our conclusion that the district court's denial of sanctions was not
an abuse of discretion. See Medical Lab. Mgmt. Consultants v. ABC, 306 F.3d
806, 825 (9th Cir. 2002) (noting that the availability of other evidence and the
plaintiff's failure to pursue it 'formed proper bases for the district court's exercise
of its discretion' in declining to impose sanctions for spoliation).
Each party shall bear its own costs on appeal.
8
AFFIRMED in part, REVERSED in part, and REMANDED.
9
FILED
Smith v. United Parcel Service, No. 10-15563 MAY 20 2011
MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS
I join parts II, III, and IV of the majority disposition. I dissent from part I,
however, because a rational trier of fact could find that UPS's 'proffered
explanation' for Smith's non-reinstatement 'is 'unworthy of credence,'' and that,
in light of the company's history of reinstating non-blacµ employees charged with
the same infraction as Smith and the harassment he experienced, the primary
reason Smith was not reinstated was his race. Chuang v. Univ. of Cal. Davis Bd. of
Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000).
In three incidents prior to Smith's confrontation with his co-worµer, Lemos,
the joint UPS-union panel did not reinstate one other blacµ employee, but did
reinstate two white employees and two Asian employees who had fought on duty.
UPS argues that the cases in which the non-blacµ employees were reinstated were
different from Smith's because the employees involved had reconciled prior to the
panel hearing, whereas Smith and Lemos had not reconciled. Consequently, UPS
suggests, Smith was differently situated and thus could not have been differently
treated because of his race. There are two problems with that argument. First,
'[w]hether two employees are similarly situated is ordinarily a question of fact.'
Becµ v. UFCW, Local 99, 506 F.3d 874, 885 n.5 (9th Cir. 2007). Whether the non-
blacµ employees' reconciliation was actually the dispositive factor in their cases, or
whether those employees were not viewed any differently than Smith - apart from
their race - is a genuine issue of material fact for a jury to decide. It is not enough
to say, as the district court found, that 'it was reasonable for the panel to conclude
that, given the lacµ of reconciliation, it could not reinstate both Lemos and
[Smith]' the question is whether any rational factfinder could have disbelieved this
basis for distinguishing the other cases. As that determination rests largely on
assessing the credibility of UPS personnel, a rational jury could certainly find for
Smith on the question of disparate treatment. Summary judgment was improper
under these circumstances.
Second, even if UPS did maintain a genuine and consistent policy of not
reinstating an employee who (1) had instigated a fight with a colleague and (2) had
not reconciled with that colleague, that would not end the inquiry. It would matter
why the employees did not reconcile. If the colleague refused to reconcile because
of the degree of harm he suffered or the sincere fear he continued to feel regarding
the aggressor-employee, it might be sensible for an employer to deny reinstatement
as a result. If the colleague refused to reconcile because of his own racial
prejudice, however, the company could not deny reinstatement on that basis,
because the employer would, in essence, be adopting the colleague's
discriminatory attitude as its own. 'It is now widely accepted that a company's
2
desire to cater to the perceived racial preferences of its customers is not a defense
under Title VII for treating employees differently based on race.' Chaney v.
Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010). A co-worµer's racial
preference is no different. Cf. 29 C.F.R. y 1604.2(a)(2) ('The [Equal Employment
Opportunity] Commission will find that the following situations do not warrant the
application of the bona fide occupational qualification exception [to the ban on sex
discrimination]: . . . (iii) The refusal to hire an individual because of the
preferences of coworµers, the employer, clients or customers . . . .') (emphasis
added). A company cannot refuse to reinstate an employee who does not get along
with co-worµers when the reason he does not get along is his race.
UPS does not dispute that Lemos refused to reconcile because his primary
goal was to ensure that Smith not be reinstated. That fact alone raises suspicions
about Lemos's motives. There is additional evidence in the record that would
allow a rational finder of fact to conclude that Lemos's animus toward Smith did,
in fact, derive from Smith's race: Lemos was a leader of the 'Mexican Mafia,' a
group of Hispanic employees that harassed other employees who were not part of
the group; Smith was among those targeted and thought he was singled out for
being blacµ, or at least because he was not Hispanic. If racial bias did motivate
Lemos not to reconcile, then the company's decision not to reinstate Smith was
3
impermissibly infected by racial discrimination. A jury could reasonably conclude
that Lemos refused to resolve his dispute with Smith because of his race, and so
UPS's decision not to reinstate Smith because of the ongoing conflict was in fact
nothing more than unlawful 'bootstrap[ping]' of Lemos's racial preferences into a
purportedly legitimate business decision. See Fernandez v. Wynn Oil Co., 653
F.2d 1273, 1276 (9th Cir. 1981). This question should have gone to a jury as well.
Finally, a rational trier of fact familiar with the Teamsters union could find
'unworthy of credence' the suggestion that the panel, on which three Teamsters
sat, was legitimately so concerned about a shoving match that it upheld the
termination of a 20-year employee for his first disciplinary offense. Termination is
an extremely harsh result in an employee-discipline grievance process, and a
seemingly unliµely one for Teamsters to endorse for an incident as relatively minor
as this one. The panel's motives could reasonably be doubted further by the fact
that it apparently did not asµ Lemos to explain whether or why he was unwilling to
reconcile with Smith - an inquiry it surely would have undertaµen if reconciliation
between employees were so critical a matter. A jury could reasonably conclude
that something other than the details of Smith's confrontation and relationship with
Lemos - such as race discrimination - underlay the decision not to reinstate him.
For these reasons, I would reverse the district court's grant of summary
4
judgment to UPS on Smith's race discrimination claim. I respectfully dissent.
5