Rosario RAMIREZ, Plaintiff-Appellant, v. FOX TELEVISION STATION, INC.; Chuck Ammann; Nancy Ferguson, Defendants-Appellees.
No. 91-56233
United States Court of Appeals, Ninth Circuit
Argued and Submitted Feb. 1, 1993. Decided July 14, 1993.
998 F.2d 743
Buckingham may also argue that he was already able to perform the essential functions of the job of being a mail clerk, but that he required reasonable accommodation in order to pursue treatment or therapy for his handicap. See supra note 3 and preceding text. If he makes such an argument, then he must show that (1) there is a causal connection between his handicap and his need for the requested accommodation, and (2) it is more likely than not that the accommodation will confer the claimed benefit. The burden then shifts to the government to show that such accommodation imposes an undue hardship on the Postal Service. Mantolete, 767 F.2d at 1423.
We note, however, that аccording to an independent medical examiner retained by the Postal Service, Buckingham was able to perform the essential functions of his job after he moved to Los Angeles and would retain such capacity for at least two years so long as he continued to receive medical treatment and follow-up, including testing and therapy.4 On the evidence now in the record, Buckingham has met his burden under the first altеrnative discussed above, and thus would seem to merit summary judgment. We remand because the government was not given an opportunity to controvert the largely undisputed facts now in the record.
IV. Conclusion
We AFFIRM the district court‘s denial of summary judgment to the Postal Service, REVERSE the sua sponte grant of summary judgment for Buckingham, and remand for further proceedings consistent with this opinion.
O‘SCANNLAIN, Circuit Judge, specially concurring
I concur in the opinion with the exception of Part III.D.
WALLACE, Chief Judge:
This appeal primarily concerns jurisdiction. It requires that we determine, first, whether we have appellate jurisdiction and, second, whether the district court had removal jurisdiction. Ramirez appeals from the district court‘s dismissal without prejudice, in which she charged that her employer, Fox Television Stations, Inc. (Fox), discriminated against her on the basis of her national origin. Fox argues that we do not have appellate jurisdiction because the district court‘s dismissal wаs not a final decision. Ramirez asserts that we have jurisdiction, that the district court did not, and thus that the court erred in refusing to remand Ramirez‘s case to state court. Ramirez also challenges the district court‘s imposition of a monetary sanction against her attorney. The district court exercised jurisdiction pursuant to
Raymond P. Boucher, Santa Monica, CA, for plaintiff-appellant.
Joel P. Kelly, McKenna & Cuneo, Los Angeles, CA, for defendants-appellees.
I
Ramirez is employed by Fox as an engineer at a local television station in Los Angeles. She alleges in her complaint that Fox subjected her to discrimination in the terms and conditions of her employment because of her national origin. She alleges that, unlike “anglo employees,” she was required to take sick leave for a portion of her jury service and was required to provide verification of that service. She also charges that she was bypassed as the audio engineer for Dodgers baseball games despite her requests for those assignments and despite her superior qualifications. She asserts, finally, that Fox failed to post job openings or to promote minority emрloyees.
Without first utilizing those procedures, Ramirez filed suit in California state court. She alleged only one cause of action: that Fox, by discriminating against her on the basis of her national origin, had violated the
Ramirez subsequently moved to remand her case to state court. The district court denied her motion, ruling that her claims “are considered to be preempted by § 301 of the Labor Management Relations Act.” Fox then moved for summary judgment. Ramirez submitted opposition papers which were nearly identical to those she had submitted in supрort of her motion to remand. The court declined to rule on the summary judgment motion and instead dismissed Ramirez‘s “case,” without prejudice, because Ramirez had failed to exhaust the grievance procedure under the Bargaining Agreement. Although the district court‘s order states that Ramirez‘s “case” was dismissed without prejudice, at the summary judgment hearing the court stated that her “claim” was dismissed and that the “matter” was dismissed.
Ramirez аrgues to us that the district court erred in failing to remand her case because it is not preempted by
II
Before reaching the question of whether the district court had removal jurisdiction, we must determine whether we have appellate jurisdiction. Fox argues that we do not because the district court‘s dismissal order is not a “final decision.” Under
The Supreme Court has instructed that the finality requirement of
Thus, a district court‘s dismissal of a complaint is normally not appealable, while the dismissal of the underlying action is. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984) (Hoohuli); Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir.1975). To the extent the district court follows this clear direction, our job is mаde easy. Ambiguity in dismissal orders breeds needless additional rules. For example, we have stated that if the court intended the dismissal of the complaint to dispose of the action, that dismissal may be considered final and appealable. Hoohuli, 741 F.2d at 1171 n. 1. In addition, the district court‘s failure to allow leave to amend “supports an inference that the district court intended to make the order final.” Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987).
The terminology employed by the district court in this case is confusing. There was no mention of dismissing the action or dismiss-
In contrast to the ambiguous labels utilized by the district court, the effect of the court‘s order appears to have ended the litigation of Ramirez‘s original claim and sent her out of the district court. See id. at 956. The court effectively terminated her litigation by concluding that her state-law cause of action is completely preempted by
Although it is difficult to discern the intent of the district court, there are other indicia of finality. The district court did not specifically give Ramirez leave to amеnd, and there is no indication that an amendment would have cured the “defect” in her complaint. See McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir.1992) (reaffirming principle that if a plaintiff cannot cure the defect that led to dismissal, the order of dismissal is appealable). The district court based its dismissal on Ramirez‘s failure to exhaust the grievance procedures under her Bargaining Agreement. Not until she exhausted those potential remedies could she return tо court. Merely amending her complaint presumably would not have been sufficient to raise a claim under her Bargaining Agreement, and it certainly could not have resurrected her state-law cause of action. We conclude that the district court‘s dismissal constitutes a final order and, therefore, we have jurisdiction over Ramirez‘s appeal.
III
Ramirez argues that the district court lacked jurisdiction over her action and therefore erred in denying her motion to remand her case to state court. The denial of a motion to remand an action to state court for lack of removal jurisdiction is reviewed de novo. Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285 (9th Cir.1989) (Chmiel).
A district court may remove an action from state court only if the action could have been brought in the district court originally. See
In areas where federal law completely preempts state law, however, a claim purportedly based on state law is considered to be a federal claim from its inception; thus, such claims are considered to have arisen under federal law. Id.
A state-law claim is preempted by
Fox argues that resolution of Ramirez‘s аction, which she brought under the
In every case in which we have considered an action brought under the
Fox answers this question by arguing that these cases are distinguishable because the rights Ramirez asserts arise solely under her Bargaining Agreement. Fox misapprehends the right which Ramirez seeks to vindicate. She does not assert, as Fox suggests, the “right” to work Dodgers games or the “right” to be promoted. Rather, she asserts the right, afforded her by the
As we have held previously, the rights conferred by the
Fox also argues that our prior cases are distinguishable because those cases did not require us to “reference” any bargaining agreements, and here we will have to “consider” the Bargaining Agreement. Preemption is appropriate, however, only when the provisions of a collective-bargaining agreement must be interpreted. See Hayden, 957 F.2d at 1509; Jackson, 881 F.2d at 644.
Fox errs in equating “reference” with “interpret.” The resolution of Ramirez‘s action will not require the interpretation of the Bargaining Agreement. The Bargaining Agreement will likely be referred to by Ramirez and Fox to determine the terms and conditions of her employment. But her underlying cause of action is that Fox discriminated against her in applying and/or altering those terms and conditions. Although the
Ramirez‘s allegation that only Hispanics like herself needed to submit jury-service verification forms, for example, cannot be resolved by interpreting her Bargaining Agreement. The Bargaining Agreement may be crystal clear—that all or no employees need such verification forms—but Fox nonetheless may have ignored the Bargaining Agreement in Ramirez‘s case or applied it to her in a discriminatory manner. Thus, reference to or consideration of the terms of a collective-bargaining agreement is not the equivalent of interpreting the meaning of the terms. If it were, all discrimination actions brought by unionized employees would be preempted because the starting point for every case would have to be the agreement. Although the line between reference to and interpretation of an agreement may be somewhat hazy, merely referring to аn agreement does not threaten the goal that prompted preemption—the desire for uniform interpretation of labor contract terms. See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962).
Examining the cases relied upon by Fox strengthens our conviction that Ramirez‘s action is not preempted. For example, Ramirez‘s case is different from Schlacter-Jones v. General Telephone of California, 936 F.2d 435 (9th Cir.1991), which involved a privacy claim brought under the California constitution by an employee who challenged her employer‘s drug-testing policy. As we indicated, the right to privacy did not encompass the absolute right to be free from drug testing; thus, drug testing could be the subject of a bargaining agreement. Id. at 442. Determining whether the employee‘s privacy rights were violated, therefore, required examining and interpreting the agreement to ascertain under what circumstances an employee could be tested for drug use. See id. The right аsserted by Ramirez, by contrast, cannot be modified by agreement. She cannot be discriminated against under certain conditions; hence it would be nonsensical to look to the terms of the Bargaining Agreement to determine if the alleged discrimination against Ramirez is excusable under the terms of that agreement.
Allis-Chalmers, also relied upon by Fox, is equally instructive. In the passage quoted by Fox in its brief, the Court stated that “state-law rights and оbligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are preempted by those agreements.” 471 U.S. at 213, 105 S.Ct. at 1912. The right to be free from discrimination, however, does exist independently of private agreements and cannot be altered or waived. See Cook, 911 F.2d at 240. The Court in Allis-Chalmers stated that preemption analysis must focus on whether the statе law at issue “confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the ... claim is inextricably intertwined with consideration of the terms of the labor contract.” 471 U.S. at 213, 105 S.Ct. at 1912 (emphasis added). The Court‘s use of the phrase “or, instead,” appears to indicate that where, as here, nonnegotiable rights exist independently оf rights established by contract, evaluation of the claim asserted does not require consideration of the terms of any bargaining agreements. If such consideration is not required, in turn, preemption is obviously inappropriate. See Miller, 850 F.2d at 546.
For the foregoing reasons, we conclude that Ramirez‘s state-law discrimination cause of action is not preempted by
IV
The district court imposed a sanction of $150 on Ramirez‘s attorney for filing, in opposition to Fox‘s summary judgment motion, “an incredibly bad set of papers which simply constituted a reargument of the remand motion. As a matter of fact, all [Ramirez‘s attorney] did was change the title.” Although the district court did not cite any authority when imposing the sanction, it
We review sanctions imposed pursuant to Rule 11 for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990); Lockary v. Kayfetz, 974 F.2d 1166, 1169 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2397, 124 L.Ed.2d 298 (1993). As the Supreme Court explained in Cooter & Gell, the “central purpose of Rule 11 is to deter baseless filings.... Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact [and] legally tenable....” 496 U.S. at 393, 110 S.Ct. at 2454. “[T]he applicable standard is one of reasonableness under the circumstances.” Business Guides, Inc. v. Chromatic Communications Enters., 498 U.S. 533, 551, 111 S.Ct. 922, 933, 112 L.Ed.2d 1140 (1991).
Ramirez‘s attorney filed the identical brief in opposition to Fox‘s motion for summary judgment that he had filed in support of Ramirez‘s remand motion. In both sets of papers, the only argument made was that
By the time the summary judgment motion was mаde, the district court had already determined that
That opposition is more accurately characterized as a motion to reconsider Ramirez‘s remand request. Presenting such a motion in the guise of a response to summary judgment, however, was improper and impertinent. We hold that the district court acted within its discretion in sanctioning Ramirez‘s attorney in the amount of $150.
The district court‘s award of sanctions is affirmed. The court‘s dismissal is reversed, and the case is remanded with directions to remand Ramirez‘s case to state court. Each side shall bear its own appeal costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting in part:
I concur in Parts I-III of the majority opinion, but dissent from Part IV. I disagree with the majority that the district court properly exercised its discretion in sanctioning Ramirez‘s attorney.
Although Ramirez‘s attorney was remiss in simply changing the title of his motion papers and submitting the same set of paрers twice, I can not agree with the majority that the attorney‘s conduct was “impertinent“. Under the circumstances of this case, the attorney acted within reason. See Business Guides, Inc., 498 U.S. at 550-52, 111 S.Ct. at 922, 933. Considering the undisputed facts, the attorney could have made no plausible, good faith argument in opposition to Fox‘s summary judgment motion. His only tenable argument was that the district court‘s prior preemption determination was erroneous. Thus, the attorney‘s conduct was not “clearly frivolous, legally unreasonable, or without legal foundation.” Operating Eng‘rs Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir.1988). Indeed, we have today decided that the district court‘s preemption determination was in error.
Finally, I would also note that the attorney‘s conduct is at least in part attributable to Fox‘s failure to move simultaneously for removal and dismissal. Thus, I would reverse the district court‘s imposition of a sanction against Ramirez‘s attorney.