Skillsky v. Lucky Stores, Inc.
| Decision Date | 11 January 1990 |
| Docket Number | No. 88-2540,No. 432,432,88-2540 |
| Citation | 893 F.2d 1088 |
| Parties | 133 L.R.R.M. (BNA) 2286, 58 USLW 2464, 114 Lab.Cas. P 11,832, 5 Indiv.Empl.Rts.Cas. 22, 29 Fed. R. Evid. Serv. 679, 14 O.S.H. Cas.(BNA) 1436 Vance J. SKILLSKY, Plaintiff-Appellant, v. LUCKY STORES, INC.; Colombo Baking Co., Inc., a wholly-owned subsidiary of Toscana Corporation; Bakery Wagon Drivers and Salesman Local Unionof the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Louis D. Silver, San Jose, Cal., for plaintiff-appellant.
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.
Before BROWNING, HALL and LEAVY, Circuit Judges.
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 Federal Rule of Civil Procedure 12(h)(3). The court ultimately dismissed all claims against the union and entered judgment in favor of all defendants. Skillsky appeals.
We affirm in part, reverse in part, and remand.
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 days.
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 Occupational 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.
Local 432 refused to process a grievance for Skillsky against Colombo. Local 432 would not file a grievance because it decided Skillsky was not entitled to a permanent position since he was only a probationary employee under section 7 of the collective bargaining agreement.
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.
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, slander, 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 motivated 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-- 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. There 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 out 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." Fed.R.Evid. 801(c). Hearsay is inadmissible in a court of law unless it comes under one of the exceptions set forth in Federal Rule of Evidence 803. Henein v. Saudi Arabian Parsons Ltd., 818 F.2d 1508, 1512 (9th Cir.1987), cert. denied, 484 U.S. 1009, 108 S.Ct. 707, 98 L.Ed.2d 657 (1988).
Skillsky contends the district court erred because the deposition testimony of Goulas, a Colombo employee, was admissible against Lucky Stores. Skillsky contends that statements of Herrick and Pastorino, two other Colombo employees, related by Goulas, should have been admitted. Even though these statements constitute multiple hearsay, Skillsky claims they are admissible against Lucky because each statement fits within an exception to the hearsay rule.
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. Fed.R.Evid. 805. Federal Rule of Civil Procedure 56(e) also provides that "[s]upporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence...." Like affidavits, deposition testimony that is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine issue of material fact sufficient to withstand summary judgment. Jacobsen v. Filler, 790 F.2d 1362, 1367 (9th Cir.1986).
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...
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