Mornes v. Los Angeles County Metro. Transit Auth.

Filed 5/15/06  Mornes v. Los Angeles County Metro. Transit Auth. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

                      APPEAL from a judgment of the Superior Court of Los Angeles County.  Haley J. Fromholz, Judge.  Affirmed. 

                      Bennett Rolfe & Associates and Bennett Rolfe, for Plaintiff and Appellant.

                      Neyhart, Anderson, Flynn & Grosboll, William J. Flynn and Linda Lu Castronovo for Defendant and Respondent Amalgamated Transit Union Local No. 1277.

                      Raymond G. Fortner, County Counsel and Ronald W. Stamm, Deputy County Counsel, for Defendant and Respondent Los Angeles County Metropolitan Transportation Authority.

________________________

                      Plaintiff L. C. Mornes appeals summary judgment granted in favor of Respondents Amalgamated Transit Union Local No. 1277 (Union) and Los Angeles County Metropolitan Transportation Authority, sued as Los Angeles County Metropolitan Transit Authority (MTA) in his action for breach of the Union's duty of fair representation and a derivative breach of contract claim against the MTA.  Plaintiff was terminated from his position at the MTA for failing a random drug test after he had failed a previous drug test and signed an agreement permitting the MTA to terminate him if he tested positive a second time.  Plaintiff contended that his Union counsel at his termination arbitration failed to present critical evidence of discrimination, retaliation, and a conspiracy against him, and therefore breached the Union's duty of fair representation.  The trial court found that plaintiff could not establish a breach of the duty of fair representation because the evidence he argued should have been introduced was either actually introduced, was never provided to Union counsel by plaintiff, or did not exist.  We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                      1.                      The Underlying Union Arbitration. 

                      Plaintiff, who is African-American, was an employee of the MTA in the position of Property Maintainer, Grade A.  Plaintiff was originally employed by the MTA on March 4, 1991, as a Property Maintainer, Grade C, and had been promoted twice to his current position.  Plaintiff was a member of the Union, which had a collective bargaining agreement with the MTA pursuant to which plaintiff could not be terminated except for good cause.     

                      On May 3, 2002, Plaintiff took a random drug test[1] which yielded positive results for marijuana use.  Plaintiff told the MTA that he had been at a party where he had unknowingly eaten some brownies laced with marijuana.     

                      Plaintiff was charged with violations of the MTA's Drug and Alcohol policy.  On June 25, 2002, the parties reached an agreement under which plaintiff would return to work; the agreement expressly provided that any positive on-duty drug or alcohol test would result in his immediate discharge.  This agreement stated that â€