                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 13 2013

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



                            FOR THE NINTH CIRCUIT


NATHANIEL HOLMES,                                No. 11-16988

              Plaintiff - Appellant,             D.C. No. 4:09-cv-05781-PJH

  v.
                                                 MEMORANDUM*
TENDERLOIN HOUSING CLINIC,
INC.; RANDALL SHAW, Executive
Director, Tenderloin Housing Clinic, Inc.;
KRISTA GAETA, Housing Services
Director, Tenderloin Housing Clinic, Inc.;
SERVICE EMPLOYEES
INTERNATIONAL UNION,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                        Argued and Submitted May 6, 2013
                            San Francisco, California

Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Nathaniel Holmes appeals the district court’s order granting summary

judgment to defendants Service Employees International Union Local 1021

(“SEIU”), Tenderloin Housing Clinic (“THC”), Randall Shaw, and Krista Gaeta.

He also appeals the district court’s dismissal of his claim under the California

Constitution for failure to state a claim. We affirm.

      We turn first to Holmes’s claims against the SEIU alone. Holmes cannot

state a claim against the SEIU Local 1021 for violating Article I, Section 8 of the

California Constitution because the union had no “authority to terminate or

disqualify Plaintiff from his employment.” Coleman v. S. Wine & Spirits of Cal.,

Inc., No. 11-00501 SC, 2011 U.S. Dist. LEXIS 131173, at *10 (N.D. Cal. Nov. 14,

2011). Even if he had a qualifying relationship, such a suit would be preempted by

Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See Miller

v. AT & T Network Sys., 850 F.2d 543, 548 (9th Cir. 1988).

      Further, the district court did not err in granting summary judgment to the

SEIU under 42 U.S.C. § 1981 because there is insufficient evidence to support a

conclusion that the union discriminated or retaliated against Holmes because of his

race or for making claims based on race. See Metoyer v. Chassman, 504 F.3d 919,

931, 939-40 (9th Cir. 2007).




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      Turning to Holmes’s claims against THC, the district court did not err in

granting summary judgment as to Holmes’s discrimination claims against the THC

defendants under 42 U.S.C. § 2000e-2 and Cal. Govt. Code § 12940a. Holmes put

forward no direct evidence of racial discrimination sufficient to survive summary

judgment. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22

(1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents

direct evidence of discrimination.”). Holmes thus must put forward indirect

evidence sufficient to satisfy the three-part test in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). While the sworn affidavits Holmes submitted

provide indirect evidence of racial discrimination, Holmes has not demonstrated

that THC’s given reasons for his termination were pretextual. He thus cannot

survive summary judgment under the McDonnell Douglas test. See Cohen v. Fred

Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982).

      The district court also did not err in granting summary judgment as to

Holmes’s retaliation claims against THC under 42 U.S.C. § 1981, 42 U.S.C. §

2000e-2, and Cal. Govt. Code § 12940a. Following San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 244 (1959), this court only obtains jurisdiction

over unfair labor practice claims on direct appeal from the NLRB. See 29 U.S.C. §

160(f). Holmes failed to appeal the NLRB’s decision against him, and so we have


                                         3
no jurisdiction over his union-related claims. Further, we agree with the district

court that Holmes did not put forward evidence of company retaliation as a result

of his race-related activities sufficient to create a triable issue of fact.

       Finally, the district court did not err in granting summary judgment as to

Holmes’s hybrid fair representation/breach of collective bargaining agreement

claim. Even if the SEIU Local 1021 breached its duty of fair representation by

failing to arbitrate Holmes’s case after it promised to do so, Holmes cannot prevail

because he cannot show that THC breached the contract. See DelCostello v. Int’l

Bhd. of Teamsters, 462 U.S. 151, 164-65 (1983). As above, Holmes’s claim that

THC discharged him due to his union activity is Garmon-preempted, see Buscemi

v. McDonnell Douglas Corp., 736 F.2d 1348, 1350 (9th Cir. 1984), and he has not

created a material dispute of fact as to whether his termination was motivated by

race discrimination.

       AFFIRMED.




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