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Thomas Dimitre v. Findings and Recommendations Afscme District Council

December 8, 2010

THOMAS DIMITRE, PLAINTIFF,
v.
FINDINGS AND RECOMMENDATIONS AFSCME DISTRICT COUNCIL 57, DEFENDANT.



SYLLABUS BY THE COURT

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

Plaintiff brings this civil action, proceeding in pro se, for breach of a collective bargaining agreement. Pending before the court are plaintiff's and defendant's cross-motions for summary judgment (Docs. 22, 27). A hearing on the motions was held on November 18, 2010, before the undersigned. Defendant's attorney Andrew Baker, appeared telephonically. Plaintiff was not present.

I. BACKGROUND

This action was originally filed in the Siskiyou County Small Claims Court. Defendant removed the case to this court based on federal question jurisdiction. Defendant then filed a motion to dismiss. However, prior to the motion being heard, plaintiff filed an amended complaint. Defendant then filed an answer, and the parties have filed cross-motions for summary judgment as they both claim the facts are not disputed. The issue in this case is whether the grievance procedures and arbitration clause in their collective bargaining agreement is applicable in this action, and if not, whether Plaintiff's claim for severance pay is meritorious.

II. SUMMARY JUDGMENT STANDARDS

"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

III. DISCUSSION

A. Undisputed Facts

This case arises out of a dispute as to severance pay following plaintiff's employment termination with AFSCME District Council 57 (Council). The parties agree that plaintiff was employed as a Business Agent with AFSCME, and that employment was governed by a collective bargaining agreement (CBA), which is attached to the amended complaint.

Plaintiff was terminated for cause on February 19, 2009. Plaintiff submitted with his motion the e-mail terminating his employment. On February 24, 2009, plaintiff submitted (apparently through his union) a grievance regarding, inter alia, the two week severance pay provided for in the CBA. This grievance was submitted to the Executive Director, George Popyack. On February 25, 2009, the Executive Director denied the grievance. Mr. Popyack ...


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