563 F.2d 205 (5th Cir. 1977), 75-2538, Munoz v. International Alliance of Theatrical Stage Emp. and Moving Picture Machine Operators of United States and Canada

Docket Nº:75-2538.
Citation:563 F.2d 205
Case Date:November 17, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 205

563 F.2d 205 (5th Cir. 1977)

Dec. P 7941

Jose Hector MUNOZ et al., Plaintiffs-Appellants,




STATES AND CANADA et al., Defendants-Appellees.

No. 75-2538.

United States Court of Appeals, Fifth Circuit

November 17, 1977

Page 206

[Copyrighted Material Omitted]

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Luis M. Segura, Jesus Cavazos, San Antonio, Tex., for plaintiffs-appellants.

Warren N. Weir, San Antonio, Tex., for Local 407.

John Scarzafava, Maury Maverick, San Antonio, Tex., for Intern'l Alliance, etc.

Harold P. Spivak, New York City, for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, TJOFLAT, and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge.

This is a confused and a confusing record. The initial confusion this case engenders is the unfortunate result of inadequately prepared attorneys for the parties and a district court judge, sitting by designation, who imprudently allowed them to construct this record haphazardly. After careful review of the record, our own understanding of the case requires that we affirm the summary judgment. Fed.R.Civ.P. 56.


Plaintiffs-appellants, Jose Hector Munoz and Roberto O. Villarreal, first filed suit against the defendants-appellees, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Union Local No. 407 ("Local No. 407") and the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada ("International"), on September 16, 1971. Plaintiffs' first attorney displayed such an inordinate lack of cooperation and good-faith during pretrial procedures that their complaint was dismissed without prejudice to their right to refile the suit within thirty days with a different attorney. 1 Plaintiffs did so and the present case followed.

Munoz and Villarreal are self-styled Mexican-Americans who alleged that the union through its International and Local No. 407 discriminated against them because of their national origin. The refiled complaint set out a chronology of the alleged discrimination.

Munoz first applied for membership in the union in January of 1970. In May of 1970 he was asked to take a written examination, though he was told that it was not necessary for the acceptance or the rejection of his application. Munoz declined to take the examination because he did not understand English very well. Later, he was informed that he had not been elected to the membership of Local No. 407. In December of 1970 Munoz applied for membership again. In response to this second

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application, some members of Local No. 407 observed Munoz at his work as a projectionist. After being notified of another written examination, Munoz appeared at the scheduled time and place. He refused to take the examination in English, offering instead to take the examination in Spanish. The administrators of the examination refused to give the examination in Spanish. In January of 1971 the membership of the Local No. 407 voted to reject his application. Unable to secure a third official application form, Munoz somehow obtained a copy of the form and submitted the copy to the Local No. 407 in May of 1971. No final action had been taken on this third application as of the date the complaint was filed. Although the complaint stated that Munoz was told the examination was not a condition precedent to processing his application and was further told that even passing the examination did not guarantee membership, he alleged that the "examinations (sic) required of him as a condition of membership into the said union, is discriminatory as to him because it is administered in only the English language, and the speaking, reading and writing (of) the English language is not a valid requirement for membership in the said union, nor for any jobs to which the said union may send the Plaintiff." 2

The complaint alleged that Villarreal also made three applications for membership in the union. He first applied for membership in January of 1970. He too was offered a written examination and, like Munoz, was assured that it would not be solely determinative of his application. Apparently, he did not take the offered examination. After he learned of the rejection of his first application, Villarreal filed a second application in November of 1970. In response to this application some members of Local No. 407 observed him at work as a projectionist. Villarreal received notice of an examination, scheduled in November of 1970, while he was out of town. He alleged that he returned the day after the examination but the defendants did not offer to examine him then. His application was rejected. His third application was filed in May of 1971 on an unofficial form that he somehow obtained after having been told that no official forms were available. Villarreal claimed that no examination had been offered to him since he had filed his third application, which was pending when the complaint was filed.

Plaintiffs invoked the Civil Rights Acts of 1870 and 1964. 42 U.S.C.A. §§ 1981, 2000e, et seq. In their prayer for relief they requested: (1) a permanent injunction enjoining the defendants from continuing to maintain practices that discriminate against them because of their national origin regarding equal hiring opportunities and membership opportunities; (2) an order requiring the defendants to take the affirmative action necessary to correct past

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discriminating practices; (3) a declaratory judgment that the challenged practices violate the Civil Rights Acts of 1870 and 1964; (4) damages for all income lost as a result of the defendants' refusal to allow them membership as well as rights of seniority as of the first day they applied for membership; and (5) such other relief that would appear equitable and just. See 28 U.S.C.A. §§ 1343(4), 2201, 2202; 42 U.S.C.A. §§ 1981, 2000e-5(f).


The difficulty of coping with the confusion of this record was somewhat exacerbated by counsels' misapprehension of the proper scope of authority of the district court vis-a-vis this Court regarding the summary judgment procedure. Plaintiffs and defendants have ignored the decisive division of authority between the reviewed court and the reviewing court. The decision whether to grant a summary judgment is for the district court alone in our three-tiered federal court system. We are merely authorized to review the propriety of the grant on the basis of the matters of record at the time the summary judgment was entered.

Plaintiffs and defendants, attempting to buttress a poorly constructed record, have appended what they aptly term "exhibits" to their briefs on this appeal. These "exhibits", for the most part, were not properly before the district court when the motion for summary judgment came on for hearing and will not be considered here. Oral argument of counsel which, despite our repeated warnings, strayed from what was actually before the district court when the summary judgment was entered must likewise not be considered here. The hearing on this motion for summary judgment was very much a procedural circus. The technique of the attorneys for plaintiffs and defendants evinced a disconcerting lack of regard for procedure, federal civil or any other. Both sides referred to and read from documents not properly before the court. The attorneys pulled several such rabbits out of their hats during their arguments. While this sideshow may have mesmerized the district court judge who allowed it and the participating attorneys who failed to object, we are, at most, limited to reviewing only those rabbits that were before the district court. Materials not presented to the district court for consideration of a motion for summary judgment are never properly before the reviewing court on appeal from the judgment granting the motion. Auto Drive-Away Co. v. ICC, 360 F.2d 446 (5th Cir. 1966); Marion County Cooperative Ass'n v. Carnation Co., 214 F.2d 557 (8th Cir. 1954). See Smith v. Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977).

Because the briefs are filled with improper distractions, we must carefully examine the record, first to determine what was actually before the district court when the summary judgment was entered and second, to decide if the information on the record supports the judgment.

Defendant Local No. 407 filed a motion for summary judgment alleging three grounds: (1) Munoz and Villarreal had become part owners and managers of a theater in San Antonio, Texas; (2) Munoz was the owner or manager of a theater in Eagle Pass, Texas; and (3) Munoz was a resident of Eagle Pass, Texas according to a residency oath he had taken to run for public office and was therefore ineligible for membership in Local No. 407 in San Antonio, Texas since Eagle Pass was within the geographical jurisdiction of Local No. 678 in Laredo, Texas. Local No. 407 based its motion on cryptic citations to the International's constitution and decisions of the National Labor Relations Board. The International joined in this motion. In their motion, Local No. 407 and the International did not provide anything beyond these bare allegations. Plaintiffs opposed this motion and summarily disputed defendants' factual allegations noting that the motion was not accompanied by either affidavits or copies of the applicable sections of the constitution. Plaintiffs summarily denied the existence of any provisions in the International's constitution that precluded plaintiffs' membership

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in Local No. 407 or the International. The district court entered...

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