                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 20 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



KEVIN R. SMITH,                                   No. 10-15563

              Plaintiff - Appellant,              D.C. No. 2:08-cv-01313-RCJ-RJJ

  v.
                                                  MEMORANDUM *
UNITED PARCEL SERVICE, INC.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                        Argued and Submitted April 13, 2011
                               Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

       Kevin R. Smith appeals the district court's adverse grant of summary

judgment in his action against United Parcel Service, Inc. ('UPS') alleging

violations of federal and state law. Smith also appeals the district court's denial of

his motions to striµe affidavit evidence and to impose sanctions for spoliation of



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
evidence. We have jurisdiction pursuant to 28 U.S.C. y 1291. We affirm in part,

reverse in part, and remand.1

                                           I

      'In order to prevail in a Title VII case, the plaintiff must establish a prima

facie case of discrimination. If the plaintiff succeeds in doing so, then the burden

shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its

allegedly discriminatory conduct. If the defendant provides such a reason, the

burden shifts bacµ to the plaintiff to show that the employer's reason is a pretext

for discrimination.' Vasquez v. Cnty. of L.A., 349 F.3d 634, 640 (9th Cir. 2004).

'A plaintiff can show pretext directly, by showing that discrimination more liµely

motivated the employer, or indirectly, by showing that the employer's explanation

is unworthy of credence.' Id. at 641. 'To show pretext using circumstantial

evidence, a plaintiff must put forward specific and substantial evidence challenging

the credibility of the employer's motives.' Id. at 642. Here, the district court gave

summary judgment to UPS on Smith's Title VII discrimination claim based on its

conclusion that, even if Smith could maµe out a prima facie case for

discrimination, UPS had provided a legitimate, non-pretextual reason for its



      1
       Because the facts are µnown to the parties, we repeat them only as
necessary to explain our decision.

                                           2
decision not to reinstate Smith. We agree. The district court's determination that

UPS's reason for not reinstating Smith--namely, that a panel composed of union

and UPS representatives reasonably concluded that Smith was the aggressor in a

fight with a fellow employee--was legitimate and that Smith did not show that it

was a pretext for discrimination.

       It is significant for our evaluation that, at his panel-level hearing, Smith did

not allege or present evidence that his termination was race-based. Similarly, when

complaining about harassment, he did not say it was based on race. And also,

when filing his grievance about his termination, he did not suggest discrimination

based on race. Nor has he shown any evidence that the union or UPS

representatives at his panel-level hearing had or disclosed racial bias. The panel's

decision not to reinstate Smith after concluding that Smith was the aggressor was a

reasonable or permissible conclusion, even if it could be challenged factually, and

there is no evidence that UPS has reinstated any non-African-American employees

after they were reasonably deemed to be an aggressor. Because the panel was

justified in deciding that Smith was the aggressor based on the evidence before it,

Smith cannot show that panel's decision is unworthy of credence or more liµely

than not motivated by discriminatory animus. The district court correctly granted

summary judgment for UPS on the Title VII claim.


                                           3
                                           II

      The district court erred, however, in concluding that Smith's claims for

negligent supervision and training were preempted by y 301 of the Labor

Management Relations Act, 29 U.S.C. y 185. In his complaint, Smith contends

that UPS owed him a duty to supervise its employees properly, to exercise due care

to prevent harm to him from its employees, and to train its employees to comply

with the law. He claims that UPS breached that duty by, among other things,

failing to respond to his complaints of harassment, and that UPS's breach

proximately caused him 'harm, threat of harm, fear, anxiety, harassment and

retaliation.' Because these state law claims concern only common law duties and

involve conduct that tooµ place before Smith's participation in the union grievance

process, they do not directly implicate the collective-bargaining agreement and are

not preempted by y 301.

      Congress enacted y 301 to ensure that 'doctrines of federal labor law

uniformly . . . prevail over inconsistent local rules.' Local 174, Teamsters v. Lucas

Flour Co., 369 U.S. 95, 104 (1962). Accordingly, 'the pre-emption rule has been

applied only to assure that the purposes animating y 301 will be frustrated neither

by state laws purporting to determine questions relating to what the parties to a

labor agreement agreed . . . , nor by parties' efforts to renege on their arbitration


                                            4
promises by relabeling as tort suits actions simply alleging breaches of duties

assumed in collective-bargaining agreements.' Livadas v. Bradshaw, 512 U.S.

107, 122-23 (1994) (internal quotation marµs and citation omitted). Section 301

'preempts only claims founded directly on rights created by collective-bargaining

agreements, and also claims substantially dependent on analysis of a collective-

bargaining agreement.' Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689

(9th Cir. 2001) (en banc) (internal quotation marµs omitted). A 'claim is not

preempted so long as it may be litigated without reference to' the collective-

bargaining agreement, and preemption is not appropriate where the court must

simply 'looµ to' a collective-bargaining agreement 'to discern that none of its

terms is reasonably in dispute.' Id. at 690, 692.

      Contrary to the district court's conclusion on which its preemption holding

was premised, in our view, Smith's negligent training and supervision claims do

not require consideration of the applicable collective-bargaining agreement. First,

the harm alleged by Smith is not his ultimate termination--the review of which

might implicate the collective-bargaining agreement--but rather the harassment,

fear, and anxiety that Smith claims to have experienced in the months preceding

his termination and that UPS allegedly did not prevent despite Smith's complaints.

Second, the UPS employees whose conduct allegedly harmed Smith were the


                                          5
managers who did not respond to Smith's concerns about harassment. Because

UPS managers are not covered by any collective-bargaining agreement, it is not

necessary to refer to such an agreement to assess Smith's negligent supervision and

training claims. Because Smith's fact-intensive state law claims are not preempted,

we reverse and remand for the district court to exercise its discretion in deciding

whether to assess the merits of Smith's state law claims or to 'decline jurisdiction

over the state claims and dismiss them without prejudice.'2 See Wade v. Reg'l

Credit Ass'n, 87 F.3d 1098, 1101 (9th Cir. 1996).

                                            III

       Federal Rule of Civil Procedure 26(e)(1) requires a party to supplement or

correct its interrogatory responses upon learning that they are incomplete or

incorrect. If a party fails to supplement a response where required, 'that party is

not allowed to use that information . . . to supply evidence on a motion, at a

hearing, or at trial, unless the failure . . . is harmless.' Fed. R. Civ. P. 37(c)(1).

Smith contends that the district court erred in denying his motion to striµe evidence


       2
         Smith will be able to refile his claims in state court if the district court, on
remand, elects to dismiss them for lacµ of subject matter jurisdiction. See Nev.
Rev. Stat. y 11.500 ('[I]f an action that is commenced within the applicable period
of limitations is dismissed because the court lacµed jurisdiction over the subject
matter of the action, the action may be recommenced in the court having
jurisdiction within: (a) The applicable period of limitations; or (b) Ninety days
after the action is dismissed, whichever is later.').

                                             6
that a particular UPS employee received Title VII-related training, information that

UPS submitted with its summary judgment motion but had not disclosed in

response to Smith's interrogatories. The district court concluded that UPS's failure

to supplement its interrogatory responses was harmless because UPS supplied

Smith with relevant training guides and policies in its initial disclosures, and

Smith, who bears the burden to show a lacµ of training, did not depose the UPS

employee about his training. We hold that the district court did not abuse its

discretion in denying Smith's motion to striµe on these grounds. See El Pollo

Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (stating standard of

review).

                                          IV

      Nor did the district court abuse its discretion in declining to impose

sanctions on UPS for its alleged willful spoliation of evidence. See Merricµ v.

Paul Revere Life Ins. Co., 500 F.3d 1007, 1014 (9th Cir. 2007) (stating standard of

review). The district court did not clearly err in finding that UPS lacµed a culpable

state of mind, a predicate finding to its exercise of inherent authority to impose

sanctions. See id.; Unigard Sec. Ins. Co. v. Laµewood Eng'g & Mfg. Corp., 982

F.2d 363, 368 n.2 (9th Cir. 1992) (observing that a district court may impose

sanctions upon a finding of wilfulness, fault, or bad faith on the part of the


                                           7
offending party). UPS was under no duty to maintain the minutes Smith requested.

Rather, as the district court found, the minutes are produced and maintained by the

union, who simply sends a copy to UPS so the company may review them for

accuracy before the minutes are approved at the next month's panel-level meeting.

There is therefore no evidence that UPS had a culpable state of mind when it

destroyed its copy of the minutes, an action it taµes in the usual course.

      Moreover, UPS destroyed its evidence before Smith made any allegation

that might have alerted UPS to its potential relevance, and '[a] party's destruction

of evidence qualifies as willful spoliation if the party has some notice that the

documents were potentially relevant to the litigation before they were destroyed.'

Leon v. IDÈ Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (internal quotation

marµs and emphasis omitted)). That Smith did not seeµ the allegedly spoliated

evidence from the union and that the evidence does not appear to assist Smith's

case also support our conclusion that the district court's denial of sanctions was not

an abuse of discretion. See Medical Lab. Mgmt. Consultants v. ABC, 306 F.3d

806, 825 (9th Cir. 2002) (noting that the availability of other evidence and the

plaintiff's failure to pursue it 'formed proper bases for the district court's exercise

of its discretion' in declining to impose sanctions for spoliation).

      Each party shall bear its own costs on appeal.


                                           8
AFFIRMED in part, REVERSED in part, and REMANDED.




                          9
                                                                              FILED
Smith v. United Parcel Service, No. 10-15563                                   MAY 20 2011

                                                                          MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, concurring in part and dissenting in part:        U.S . CO U RT OF AP PE A LS




      I join parts II, III, and IV of the majority disposition. I dissent from part I,

however, because a rational trier of fact could find that UPS's 'proffered

explanation' for Smith's non-reinstatement 'is 'unworthy of credence,'' and that,

in light of the company's history of reinstating non-blacµ employees charged with

the same infraction as Smith and the harassment he experienced, the primary

reason Smith was not reinstated was his race. Chuang v. Univ. of Cal. Davis Bd. of

Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000).

      In three incidents prior to Smith's confrontation with his co-worµer, Lemos,

the joint UPS-union panel did not reinstate one other blacµ employee, but did

reinstate two white employees and two Asian employees who had fought on duty.

UPS argues that the cases in which the non-blacµ employees were reinstated were

different from Smith's because the employees involved had reconciled prior to the

panel hearing, whereas Smith and Lemos had not reconciled. Consequently, UPS

suggests, Smith was differently situated and thus could not have been differently

treated because of his race. There are two problems with that argument. First,

'[w]hether two employees are similarly situated is ordinarily a question of fact.'

Becµ v. UFCW, Local 99, 506 F.3d 874, 885 n.5 (9th Cir. 2007). Whether the non-

blacµ employees' reconciliation was actually the dispositive factor in their cases, or
whether those employees were not viewed any differently than Smith - apart from

their race - is a genuine issue of material fact for a jury to decide. It is not enough

to say, as the district court found, that 'it was reasonable for the panel to conclude

that, given the lacµ of reconciliation, it could not reinstate both Lemos and

[Smith]' the question is whether any rational factfinder could have disbelieved this

basis for distinguishing the other cases. As that determination rests largely on

assessing the credibility of UPS personnel, a rational jury could certainly find for

Smith on the question of disparate treatment. Summary judgment was improper

under these circumstances.

      Second, even if UPS did maintain a genuine and consistent policy of not

reinstating an employee who (1) had instigated a fight with a colleague and (2) had

not reconciled with that colleague, that would not end the inquiry. It would matter

why the employees did not reconcile. If the colleague refused to reconcile because

of the degree of harm he suffered or the sincere fear he continued to feel regarding

the aggressor-employee, it might be sensible for an employer to deny reinstatement

as a result. If the colleague refused to reconcile because of his own racial

prejudice, however, the company could not deny reinstatement on that basis,

because the employer would, in essence, be adopting the colleague's

discriminatory attitude as its own. 'It is now widely accepted that a company's


                                           2
desire to cater to the perceived racial preferences of its customers is not a defense

under Title VII for treating employees differently based on race.' Chaney v.

Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010). A co-worµer's racial

preference is no different. Cf. 29 C.F.R. y 1604.2(a)(2) ('The [Equal Employment

Opportunity] Commission will find that the following situations do not warrant the

application of the bona fide occupational qualification exception [to the ban on sex

discrimination]: . . . (iii) The refusal to hire an individual because of the

preferences of coworµers, the employer, clients or customers . . . .') (emphasis

added). A company cannot refuse to reinstate an employee who does not get along

with co-worµers when the reason he does not get along is his race.

       UPS does not dispute that Lemos refused to reconcile because his primary

goal was to ensure that Smith not be reinstated. That fact alone raises suspicions

about Lemos's motives. There is additional evidence in the record that would

allow a rational finder of fact to conclude that Lemos's animus toward Smith did,

in fact, derive from Smith's race: Lemos was a leader of the 'Mexican Mafia,' a

group of Hispanic employees that harassed other employees who were not part of

the group; Smith was among those targeted and thought he was singled out for

being blacµ, or at least because he was not Hispanic. If racial bias did motivate

Lemos not to reconcile, then the company's decision not to reinstate Smith was


                                            3
impermissibly infected by racial discrimination. A jury could reasonably conclude

that Lemos refused to resolve his dispute with Smith because of his race, and so

UPS's decision not to reinstate Smith because of the ongoing conflict was in fact

nothing more than unlawful 'bootstrap[ping]' of Lemos's racial preferences into a

purportedly legitimate business decision. See Fernandez v. Wynn Oil Co., 653

F.2d 1273, 1276 (9th Cir. 1981). This question should have gone to a jury as well.

      Finally, a rational trier of fact familiar with the Teamsters union could find

'unworthy of credence' the suggestion that the panel, on which three Teamsters

sat, was legitimately so concerned about a shoving match that it upheld the

termination of a 20-year employee for his first disciplinary offense. Termination is

an extremely harsh result in an employee-discipline grievance process, and a

seemingly unliµely one for Teamsters to endorse for an incident as relatively minor

as this one. The panel's motives could reasonably be doubted further by the fact

that it apparently did not asµ Lemos to explain whether or why he was unwilling to

reconcile with Smith - an inquiry it surely would have undertaµen if reconciliation

between employees were so critical a matter. A jury could reasonably conclude

that something other than the details of Smith's confrontation and relationship with

Lemos - such as race discrimination - underlay the decision not to reinstate him.

      For these reasons, I would reverse the district court's grant of summary


                                          4
judgment to UPS on Smith's race discrimination claim. I respectfully dissent.




                                        5
