Horvitz & Levy LLP, along with the Pepperdine Law School Ninth Circuit Appellate Clinic, successfully reversed the dismissal of Rosemary Garity’s ADA lawsuit. Ms. Garity, a United States Postal Service Clerk suffers from numerous physical and emotional disabilities. Despite her willingness to perform her job, postal service management refused to accommodate her disabilities. Ms. Garity sued her union after it refused to file and process her grievances and instead sided with management, discriminating and retaliating against her because of her disabilities. The district court dismissed her ADA claims on the basis that they were barred by res judicata, because she had lost a prior lawsuit against the union for breach of the duty of fair representation under labor laws. In particular, the district court found that for Title VII and ADA claims brought against a union, as opposed to an employer, a plaintiff must show a breach of the duty of fair representation. The Ninth Circuit reversed, holding that the elements of a Title VII or ADA claim are the same when brought against an employer or a union. Thus, the district court erred in finding that its prior adverse determination on her claim for breach of the duty of fair representation had preclusive effect for her ADA claims.
Horvitz & Levy attorneys Jeremy Rosen and Mark Kressel supervise the Pepperdine Law School Ninth Circuit Appellate Clinic in representing clients like Ms. Garity pro bono under appointment by the Ninth Circuit. This is the Pepperdine clinic’s fifth win in seven cases.