WELA ALERT – Case Update ?
Garity v. APWU National Labor Organization, — F.3d — (9th Cir. 7/5/16) (Bybee, J., Farris, N.?Smith).
Adverse Determination on Breach of Duty of?Fair Representation Claim Against a Union?Does Not Preclude Employee?s ADA Claim?against the Union?
Plaintiff was a disabled employee working for?the U.S. Postal Service. She alleged that she was?able to perform the essential functions of many?jobs but that management refused to grant?reasonable accommodations. Plaintiff repeatedly?complained about the lack of accommodation to?her union, the American Postal Workers Union,?AFL-CIO (?APWU?). She alleges that APWU,?rather than filing and processing her grievances,?sided with management, discriminating and?retaliating against her because of her disabilities. ?She alleges that the union steward not only failed?to file her grievances, but withdrew roughly a?dozen grievances previously filed and failed to?represent her in employment proceedings. ?Plaintiff filed complaints against the union with?the EEOC and NLRB. She was eventually?terminated from her position. She filed suit?alleging a violation of Title VII, the ADA, and?conspiracy under 42 U.S.C. ?? 1985 and 1986. ?She also alleged state tort claims of negligent?retention and intentional infliction of emotional?distress. ?The district court liberally construed the Title VII?claim as a claim for disparate treatment under the?ADA. After first denying the motion to dismiss?the ADA claim against the union, the Court?subsequently ruled that Garity’s ADA claims??must be dismissed because each requires?[Garity] to prove the . . . breach of the duty of?fair representation,? with the same “nucleus of?operative facts” which the court had ruled to be?not actionable in a different complaint filed by?plaintiff. Plaintiff appealed and was appointed?counsel by the Ninth Circuit Court?Commissioner.?The Ninth Circuit ruled that the ADA claim is?not precluded because a claim of disability?discrimination against a union does not require a?showing of breach of duty of fair representation. ?The Court relied upon 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 Title VII and the ADA?are analyzed in parallel fashion, ?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. Accordingly, Garity’s ADA claims . . . 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.