                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAN GAZZANO,                                     No. 14-15577

              Plaintiff - Appellant,             D.C. No. 5:12-cv-05742-PSG

 v.
                                                 MEMORANDUM*
STANFORD UNIVERSITY; SEIU
HIGHER EDUCATION WORKERS
LOCAL 2007, SERVICE EMPLOYEES
INTERNATIONAL UNION,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Paul S. Grewal, Magistrate Judge, Presiding

                       Argued and Submitted April 14, 2016
                            San Francisco, California

Before: WALLACE, SCHROEDER, and KOZINSKI, Circuit Judges.

      Plaintiff-Appellant Dan Gazzano appeals from the district court’s summary

judgment in favor of his former employer, Stanford University, and his Union,

Local Chapter 2007 of the Service Employees International Union Higher


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Education Workers. Stanford terminated Gazzano from his job as a

groundskeeper. The termination letter explained that the termination was on

account of a long history of inappropriate and harassing comments, including

racist, sexist, and homophobic remarks about colleagues.

      Although the district court dismissed the breach of contract claim against

Stanford on preemption grounds, such a claim may be maintained pursuant to

§ 301 of the Labor Management Relations Act, 29 U.S.C. § 185, if the plaintiff is

able to show that the union breached its duty of fair representation. Soremekun v.

Thrifty Payless, Inc., 509 F.3d 978, 987 (9th Cir. 2007). The Union, however,

investigated Gazzano’s grievance, carried it through three steps of the grievance

procedures and negotiated a settlement, which Gazzano declined to accept.

Relying on counsel’s evaluation of the case that the arbitration would be

unsuccessful, the Union decided not to proceed to arbitration. In response to the

Union’s motion for summary judgement, Gazzano abandoned the allegations of his

complaint, that the Union had acted out of animus, and attempted to argue a new

theory unsupported by the pleadings. Gazzano failed to establish any breach of the

Union’s duty of fair representation.

      Moreover, the record bears out the legitimate, nondiscriminatory reasons

Stanford provided in its termination letter. There is no evidence that the reasons


                                          2
for termination were pretextual or that Stanford treated Gazzano more harshly than

it treated other individuals in similar circumstances.

       Gazzano’s disability discrimination claim fails for the reasons stated by the

district court.

       The district court did not abuse its discretion in limiting discovery to a

period beginning in 2011, corresponding to the time Gazzano’s claims arose.

       AFFIRMED.




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