Skillsky v. Lucky Stores, Inc.Skillsky v. Lucky Stores, Inc.
Jonathan R. Bass, Coblentz, Cahen, McCabe & Breyer, San Francisco, Cal., for defendant-appellee, Colombo Baking Co., Inc.
Duane B. Beeson, Beeson, Tayer, Silbert & Bodine, San Francisco, Cal., for defendant-appellee, Local Union Number 432.
George J. Barron, William R. Hill, Donahue, Gallagher, Thomas & Woods, Oakland, Cal., for defendant-appellee, Lucky Stores, Inc.
Appeal from the United States District Court for the Northern District of California.
LEAVY, Circuit Judge:
OVERVIEW
The appellant, Vance J. Skillsky (Skillsky), brought this action for wrongful termination and other related claims against two of his former employers, Lucky Stores, Inc. (Lucky Stores) and Colombo Baking Company, Inc. (Colombo), his union, Bakery Wagon Drivers and Salesman Local Union No. 432 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (Local 432), and Does I-XXX. Skillsky also sought to set aside an arbitration decision, affirmed by the Superior Court of California, that there was sufficient cause for his termination.
The district court granted summary judgment in favor of Lucky Stores and Colombo. It granted Local 432‘s motion in limine, so that certain evidence could not be introduced against the union. The court also held that it lacked jurisdiction as to one of the claims against the union under
We affirm in part, reverse in part, and remand.
FACTS
For ten years Skillsky was employed as a bakery truck driver for Lucky Stores. He was discharged in 1982 after a confrontation with one of Lucky Stores’ managers. Skillsky was terminated for using profane and abusive language and for threatening the manager‘s life.
Local 432 filed a grievance on the termination and pursued it to arbitration, requesting a reduced disciplinary action. The arbitrator found there was sufficient cause for Skillsky‘s discharge based on his conduct during the confrontation, and denied his grievance. The Superior Court of California affirmed the arbitrator‘s award.
Following his discharge from Lucky Stores, Local 432 referred Skillsky to Colombo for work. Colombo hired Skillsky as a probationary relief bakery truck driver. He worked intermittently for twenty-six days from June 14, 1982 until August 21, 1982. On August 21, 1982, he was informed he was no longer needed. Skillsky acquired no seniority status with Colombo because the collective bargaining agreement provided for seniority status only by working thirty consecutive dаys.
Colombo‘s transport supervisor, Al Pastorino, says he did not hire Skillsky as a permanent driver after he learned from a Colombo executive, Robert Herrick, that Skillsky was an unstable person with a reputation as a “kook” who would not be good for Colombo‘s organization. However, Skillsky contends he was not hired because Lucky Stores management officials informed Colombo that Skillsky was a troublemaker, because seven years earlier he had filed a complaint with the California Occuрational Safety and Health Association (Cal-OSHA) regarding the noise level of Lucky Stores’ trucks. As a result, Lucky Stores had to replace ten of its trucks.
Skillsky filed a complaint in the Superior Court of California, alleging wrongful termination against Lucky Stores and Colombo and breach of the duty of fair representation by Local 432. Lucky Stores removed the action to federal court. Skillsky then filed an amended complaint.
DISCUSSION
The Claims Against Lucky Stores
Skillsky alleged seven claims against Lucky Stores: (1) it used corruption and fraud to obtain the arbitrator‘s award and therefore, the award should be set aside; (2) wrongful discharge in violation of public policy and in violation of the collective bargaining agreement; (3) interference with an employment relationship; (4) slander; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; and (7) conspiracy.
Lucky moved for summary judgment. The district court granted the motion. The court found the claim of corruption against the arbitrator was res judicata because the Superior Court judgment had affirmed the arbitration award. Similarly, the court found the wrongful discharge claim barred by collateral estoppel. The court dismissed the interference, slandеr, and emotional distress claims, finding there was no admissible evidence to raise a genuine issue of material fact. For the same reason, the claim of conspiracy was dismissed. In addition, the court found there was no separate cause of action for conspiracy unless a wrong was committed.
Skillsky alleges his termination by Lucky Stores was wrongful in that:
[D]efendant was without just cause and in violation of the agreement between LUCKY and LOCAL 432.
That said termination was further wrongful in that said termination was motivatеd by the exercise by plaintiff of protected activities to wit: the filing of safety complaints with appropriate governmental agencies, and as such is violative of public policy.
The district court ruled that this claim was barred by collateral estoppel because the arbitrator found sufficient cause for termination and the Superior Court had affirmed that decision.
On appeal, Skillsky contends Lucky Stores’ motivation for the termination--Skillsky‘s filing of the Cal-OSHA complaint seven years earlier--“had not yet come to light at the time of the arbitration or its affirmation proceeding. In this situtation [sic] there could not possibly have been any identity of issues and thus no collateral estoppel.” Lucky Stores, on the other hand, contends that not only collateral estoppel but also res judicata apply to preclude the cause of action for wrongful discharge.
We need not decide whether res judicata or collateral estoppel apply. Thеre is not a scintilla of evidence in the record of any motive for Lucky Stores to discharge Skillsky other than for his conduct towards the store manager, as documented in Lucky Stores’ dismissal letter of May 19, 1982. Even if Lucky Stores did inform Colombo that Skillsky filed a Cal-OSHA complaint against Lucky Stores seven years earlier, prompting Colombo‘s discharge of Skillsky, it does not follow that Lucky Stores discharged Skillsky for this reason. The grant of summary judgment on this issue was proper.
In connection with the claims against Lucky Stores arising оut of Colombo‘s termination of Skillsky, the district court ruled that certain affidavits and deposition testimony filed in opposition to the motions for summary judgment were hearsay and therefore inadmissible against Lucky Stores. This defeated Skillsky‘s claims against Lucky Stores for slander, negligent and intentional infliction of emotional distress, interference with an employment relationship, and conspiracy.
Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Hearsay included within hearsay, or “multiple hearsay,” is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rules.
Goulas’ deposition testimony relates to the day his supervisor at Colombo, Al Pastorino, told Goulas that he would have a different bakery truck run. Goulas testified:
A. I then inquired why.
Q. And his response was?
A. His response was is he was going to have to let Jack go. Therefore I wouldn‘t be able to go on my run. He was going to have this other guy do my run.
....
Q. Did you ask him [Pastorino] why he was going to get rid of Jack [Skillsky]?
A. Yes.
Q. And did he respond to you?
A. Yes.
Q. What did he say?
A. He [Pastorino] said that the big wheels had called up from Lucky‘s and had told his supervisors [including Herrick] to tell him [Pastorino] to let him [Skillsky] go, because he had caused problems over there with OSHA.1
Skillsky contends: (1) Herrick‘s alleged statement to Pastorino and Pastorino‘s statement to Goulas were the admissions of a party-opponent, admissible under
Goulas’ testimony as to what “the big wheels” from Lucky Stores said to Herrick, or what Hеrrick said to Pastorino, is inadmissible against Lucky Stores. It is not based on Goulas’ personal knowledge, as
Whether hearsay evidence is to be received under
We agree with the district court that there is no material issue of fact supporting claims against Lucky Stores in connection with either the termination by Lucky Stores or the termination by Colombo. Moreover, there is no admissible evidence that Lucky Stores conspired to obtain Skillsky‘s termination from Colombo. In California, “there ... is no separate tort of civil conspiracy and there is no civil action for conspiracy to commit a recognized tort, unless the wrongful act itself is committed and damage results therefrom.” Youst v. Longo, 161 Cal.App.3d 196, 207 Cal.Rptr. 447, 453 (1984).
Skillsky alleged two claims against Colombo: (1) wrongful termination in violation of the collective bargaining agreement and in violation of public policy, and (2) conspiracy.
Skillsky alleges Colombo terminated him because he filed a Cal-OSHA complaint against Lucky Stores. The district court granted Colombo‘s motion for summary judgment because “[t]his court is not prepared to extend the public policy with an unseasoned Garibaldi to a claim against another employer rather than the present employer.”
In Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1374 (9th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985), a case arising in California, the plaintiff was discharged for reporting the shipment of adulterated milk. Id. at 1374. We held in Garibaldi that
To decide whether California‘s prohibition against retaliatory discharge if an employee has acted in the public interest should extend to subsequent employment, this court follows a state supreme court‘s interpretation of its own statute in the absence of extraordinary circumstances. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), modified on other grounds, 810 F.2d 1517 (1987). The California Supreme Court has not determined this issue. If so,
Where the state‘s highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it. In answering that question, this court looks for “guidance” to decisions by intermediate appellate courts of the state and by courts in other jurisdictions.
Id. (citations omitted). However, there are no appellate state court decisions or decisions from other jurisdictions deciding the issue. We may not certify this issue to the California Supreme Court because California law does not provide a certification process. Los Angeles Memorial Coliseum Comm‘n v. National Football League 791 F.2d 1356, 1362 (9th Cir.1986), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987).
We may consider “all available data” to predict how the California Supreme Court might decide the issue. See Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir.1982) (diversity case). In doing so, we conclude the California Supreme Court would allow a cause of action for retaliatory discharge against subsequent employers.
The California Supreme Court has held that
an employer‘s obligation to refrain from discharging an employee who refuses to commit a criminal act does not depend upon any express or implied “promises set forth in the [employment] contract,” but rather reflects a duty imposed by law upon all employers in order to imрlement the fundamental public policies embodied in the state‘s penal statutes.
Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 176, 164 Cal.Rptr. 839, 844, 610 P.2d 1330, 1335 (1980) (citations omitted). This language creates a tort that limits the general right of an employer to dismiss employees for any reason. The tort of discharge in contravention of public policy is grounded on the need to protect important public policies, not on a particular relationship between the employee and employer.
Recently, the California Supreme Cоurt reaffirmed the importance of this tort. The Court observed that “California cases have focused on the general social policies being advanced by recognition of the public-policy-based cause of action.” Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 216, 765 P.2d 373, 378 (1988). The court stated: “[W]e must ... inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.” Id. at 217, 765 P.2d at 379; see Garibaldi, 726 F.2d at 1375 (recognizing the importance оf this tort in “further[ing] the state‘s interest in protecting the general public--an interest which transcends the employment relationship“).
Therefore, the public policy prohibiting retaliatory discharge for reporting safety and health considerations in California is a strong one. The California Supreme Court has concluded that, even after the passage of Cal-OSHA, there remains a private right of action for employees discharged for reporting health and safety conditions because the common law right to be free of such discharge is not extinguished by passage of statutory remedies. Id. at 299-300, 188 Cal.Rptr. at 165-66; see Paige v. Henry J. Kaiser Co., 826 F.2d 857, 863 (9th Cir.1987) (“A private right of action for wrongful discharge due to safety complaints co-exists with the Cal/OSHA remedial scheme.“), cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988). Given this strong public policy, the tort should extend to subsequent employers.
Further,
No person shall discharge or in any manner discriminate against any employee because such employee has either (1) made any oral or written complaint, ... or (2) instituted or caused to be instituted any proceeding under or relating to his rights ... in any such proceeding.... (b) Any employee who is discharged, threatened with discharge, demoted suspended, or in any other manner discriminated against ... by his employer because such employee has made a bona fide oral or written complaint to the division [or others] ... shall be entitlеd to reinstatement and reimbursement for lost wages and work benefits by such acts of the employer.
(Emphasis added.)
There is a significant threat to employees, to the public, and to the Cal-OSHA statute if subsequent employers, hearing of an employee‘s safety and health complaints against previous employers, decide to discharge that employee. Employers could circumvent an employee‘s right to file these complaints by threatening retaliation in future employment. Employees would hеsitate to file health and safety complaints if they knew they would face the risk of not finding future employment. Contrary to Colombo‘s assertion that this “factual scenario ... is so idiosyncratic as to suggest that it is unlikely ever to be repeated,” it is very likely that such situations commonly arise in the workplace. The risk is particularly pronounced in smaller industries where employers tend to know one another. Employees would be especially at risk if prospective employers contacted previous employers for a recommendation.
We find that California would allow Skillsky‘s action for retaliatory discharge against a subsequent employer.
Colombo did not object to Goulas’ testimony regarding Colombo‘s motive for firing Skillsky. Colombo instead advised the district court that it did not intend to stand on an evidentiary objection. See Colombo‘s Opening Brief at 3 & n. 3.2 Nevertheless, the district court ruled that the testimony was inadmissible against Colombo as well as against Lucky Stores, relying on the arguments advancеd by Lucky Stores.
The district court‘s ruling was in error. For purposes of summary judgment, the court had to consider the testimony, even if it was hearsay, because Colombo failed to object. See Fireguard Sprinkler Sys., Inc. v. Scottsdale Ins. Co., 864 F.2d 648, 651-52 & n. 2 (9th Cir.1988) (failure to object to allegedly defective evidence waives the objection for purposes of summary judgment). The testimony brings into question Colombo‘s actual motive for terminating Skillsky.
We reverse the grant of summary judgment in favor of Colombo. We anticipate that the issue of the admissibility of Goulas’ testimony will be fully developed at trial. We express no opinion as to whether it will be admissible at that stage of the case.
Because Colombo did not object to Goulas’ testimony at the hearing on the summary judgment motions, it is also admissible against Colombo to show there was a conspiracy, which creates a genuine issue of material fact. We reverse the grant of summary judgment in favor of Colombo on this issue. Again, we express no opinion as to the admissibility of Goulas’ testimony for purposes of trial.
The Claims Against Local 432
Skillsky alleged three claims against Local 432: (1) breach of the duty of fair representation in connection with the Lucky Stores termination; (2) breach of the duty of fair representation in connection with the Colombo termination; and (3) conspiracy.
Local 432 did not file a motion for summary judgment. Instead, eleven days before trial, Local 432 filed a motion in limine to prohibit the introduction of evidence on all but one of the claims against it. Local 432 also filed a separate
Skillsky alleges Local 432 breached the duty of fair representation in his action against Lucky Stores. To establish a claim for a breach of the duty of fair representation, Skillsky must show: (1) the discharge was in violation of the cоllective bargaining agreement, and (2) the union breached its duty by more than a mere error of judgment. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059-60, 47 L.Ed.2d 231 (1976).
Federal courts must give preclusive effect to administrative determinations reviewed by a state court.
Skillsky‘s claim that Lucky Stores violated the collective bargaining agreement hаs already been decided against Skillsky and in favor of Lucky Stores. The arbitrator found sufficient cause for the discharge. Therefore, the collective bargaining agreement was not violated. The Superior Court affirmed the arbitrator‘s conclusion. Skillsky cannot ask us to decide anew whether the discharge was in violation of the collective bargaining agreement. This claim against Local 432 is precluded.
Section 7 of the collective bargaining agreement provides, in relevant part, that:
Seniority shall not apply to any Employee until he shall have been employed by a particular Employer for a period of ... [t]hirty (30) consecutive days for Transport Employees.
Skillsky has presented no evidence to show that this discharge was in violation of the collective bargaining agreement. Skillsky was a probationary employee who, as a matter of law, had no right to a position. Skillsky cannot show a breach of the duty of fair representation. The district court‘s ruling is affirmed.
Skillsky contеnds Local 432‘s motion in limine was untimely because it was filed only eleven days before trial. This matter is within the sound discretion of the district court. See
Finally, there is no evidence of any act on the union‘s part to obtain Skillsky‘s discharge from Colombo. Because there was no wrongful act, there is no action for conspiracy. Youst, 161 Cal.App.3d 195, 207 Cal.Rptr. at 453.
AFFIRMED on all claims for Lucky Stores and Local 432. AFFIRMED in part and REVERSED in part аs to Colombo, and REMANDED. Costs shall be awarded to Lucky Stores and to Local 432. Skillsky and Colombo shall bear their own costs on appeal.
LEAVY, Circuit Judge