                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 03 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SERGEI PORTNOY,                                   No. 11-17782

               Plaintiff - Appellant,             D.C. No. 2:10-cv-02730-GEB-
                                                  CKD
  v.

VEOLIA TRANSPORTATION                             MEMORANDUM *
SERVICES, INC.,

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Sergei Portnoy appeals pro se from the district court’s summary judgment in

his employment action alleging that defendant fired him because of his national

origin in violation of federal and state law. We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291. We review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639

(9th Cir. 2004). We may affirm on any ground supported by the record, Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008), and we affirm.

      The district court properly granted summary judgment on Portnoy’s

discrimination claims because Portnoy failed to raise a genuine dispute of material

fact as to whether defendant’s legitimate, non-discriminatory reason for

terminating his employment was pretextual. See Vasquez, 349 F.3d at 640-42 &

n.5 (discussing elements of a discrimination claim under Title VII and explaining

that evidence of pretext must be specific and substantial); see also Cal. Const. art.

I, § 8; Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (same

analysis applies to discrimination claims under Title VII and California’s Fair

Employment and Housing Act (“FEHA”)).

      The district court properly granted summary judgment on Portnoy’s breach

of contract and breach of implied covenant claims because these claims are

preempted by Section 301 of the Labor Management Relations Act (“LMRA”).

See Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987) (a

state law contract claim is preempted by section 301 of the LMRA if the subject

matter of the contract is covered by a collective bargaining agreement or the

employee relies on that agreement in asserting the contract claim); Guz v. Bechtel


                                           2                                    11-17782
Nat’l Inc., 8 P.3d 1089, 1112 (Cal. 2000) (a claim that realleges a breach of

contract as a violation of the implied covenant of good faith and fair dealing is

superfluous).

      The district court properly granted summary judgment on Portnoy’s

intentional and negligent infliction of emotional distress claims because these

claims are preempted by California’s workers’ compensation scheme. See Charles

J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 14 P.3d 234, 244 (Cal. 2001)

(where the acts that give rise to a cause of action are “a ‘normal’ part of the

employment relationship,” the cause of action is subject to the exclusivity of the

workers’ compensation law (citation omitted)).

      Summary judgment on Portnoy’s “public policy” claim was proper because

Portnoy failed to raise a triable dispute as to whether his termination or allegedly

adverse treatment violated public policy. See Holmes v. Gen. Dynamics Corp., 22

Cal. Rptr. 2d 172, 177 fn. 8 (Ct. App. 1993) (elements of a public policy claim).

To the extent that Portnoy asserted a harassment claim under the FEHA, the district

court properly granted summary judgment because Portnoy failed to exhaust his

administrative remedies. See Okoli v. Lockheed Technical Operations Co., 43 Cal.

Rptr. 2d 57, 61 (Ct. App. 1995) (exhaustion is a jurisdictional prerequisite and

requires that the claimant specify the alleged wrongful act in his charge).


                                           3                                      11-17782
      Portnoy’s contentions concerning the existence or admissibility of

defendant’s evidence and the credibility of defendant’s witnesses are rejected.

      AFFIRMED.




                                          4                                   11-17782
