                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 03 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HORACIO HERNANDEZ,                               No. 14-55799

              Plaintiff - Appellant,             D.C. No. 2:13-cv-08790-MMM-
                                                 SH
 v.

LEVY PREMIUM FOODSERVICE, LP,                    MEMORANDUM*

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                             Submitted April 6, 2016**
                               Pasadena, California

Before: FERNANDEZ and BEA, Circuit Judges, and GONZALEZ ROGERS,***

District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Yvonne Gonzalez Rogers, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
                                          I.

      Plaintiff-Appellant complains of “a hybrid wrong, caused by both the

employer and the Union.” Harper v. San Diego Transit Corp., 764 F.2d 663, 669

(9th Cir. 1985). Accordingly, his claims are subject to “the six-month statute of

limitations for making charges of unfair labor practices to the NLRB, contained in

section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b).” Id. (citing

DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 155 (1983)). This is true even

though Plaintiff chose not to name the Union as a co-defendant. See Gen.

Teamsters Union Local No. 174 v. Trick & Murray, Inc., 828 F.2d 1418, 1423 (9th

Cir. 1987) (quoting DelCostello, 462 U.S. at 165) (“The employee may ... sue one

defendant and not the other; but the case he must prove is the same whether he sues

one, the other, or both.”).

                                         II.

      There was no triable issue of fact as to whether Plaintiff’s claims are time-

barred. Admissible and uncontroverted evidence established that Defendant

terminated Plaintiff on October 27, 2011. According to Plaintiff, he timely filed a

grievance with the Union after the termination. The collective bargaining

agreement (“CBA”) required Plaintiff to give notice of a grievance within seven

days of termination, for the Union and Levy to attempt to reach an informal

settlement within seven days of that notice, and if no settlement was reached, to
submit the grievance in writing within seven days thereafter. Furthermore, under

the CBA, unresolved grievances may be referred to mediation, and then binding

arbitration, within 60 days of a written submission. Plaintiff’s claims here are

premised on his contention that the Union failed to prosecute his grievance.

However, he did not file his complaint until 24 months after he had been

terminated by Defendant and filed a grievance with the Union about that

termination. “The statute of limitations begins to run when a plaintiff ‘knew, or

should have known, of the defendant’s wrongdoing.’” Stone v. Writer’s Guild of

America West, Inc., 101 F.3d 1312, 1314 (9th Cir. 1996) (quoting Allen v. United

Food & Commercial Workers Int’l, 43 F.3d 424, 427 (9th Cir. 1994)). Plaintiff

“should have known of the defendant’s wrongdoing” when the Defendant

terminated him and the Union did not commence grievance and arbitration

proceedings by the end of the CBA’s grievance period following his termination,

such that his termination was final and had no chance of being rescinded through

the CBA’s grievance procedure. Plaintiff’s knowledge or constructive knowledge

of the finality of his termination occurred more than six months before he filed his

complaint in October 2013. Accordingly, his claims are time-barred.

      AFFIRMED.
