                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 29 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



PAMELA D. HARDINE, an individual,                No. 10-56667

              Plaintiff - Appellant,             D.C. No. 2:09-cv-05885-GAF-CW

  v.
                                                 MEMORANDUM *
OFFICE AND PROFESSIONAL
EMPLOYEES INTERNATIONAL
UNION, Erroneously Sued As Local 174
of the Office and Professional Employees
International Union,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                           Submitted February 14, 2012**
                               Pasadena, California




        *
             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).
Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.***

      Pamela D. Hardine ('Hardine') appeals the district court's grant of summary

judgment in her employment discrimination action under the California Fair

Employment and Housing Act ('FEHA') against the Office and Professional

Employees International Union ('OPEIU'). We have jurisdiction pursuant to 28

U.S.C. y 1291. We review de novo whether state law claims are preempted under

y 301. Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 689 (9th Cir.

2001) (en banc), cert. denied, 122 S. Ct. 806 (2002). We affirm.

      The district court properly concluded that section 301 of the Labor

Management Relations Act, 29 U.S.C. y 185, preempts Hardine's state law claim

because it is 'inextricably intertwined with consideration of the terms of the labor

contract.' Allis-Chalmers Corp. v. Luecµ, 471 U.S. 202, 213 (1985). In her

complaint, Hardine's sole claim is that OPEIU 'failed and refused to fairly,

properly, fully, adequately or accurately provide her with quality representation in

her claims against her employer.' In other words, Hardine seeµs to enforce duties

that OPEIU owes as union representatives, namely the duty to represent her in

good faith as her exclusive representative. Adµins v. Mireles, 526 F.3d 531, 540



        ***
            The Honorable Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.

                                         -2-
(9th Cir. 2008). This claim is 'founded directly on rights created by the collective

bargaining agreement,' which outlines OPEIU's duties to its members, including

Hardine. Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987).

      The cases cited by Hardine are unpersuasive. Those cases involve

employees suing their employer, not their union. Thus, those cases do not involve

the duty of fair representation, a duty arising from the CBA and imposed on the

union. Accordingly, Hardine's claim is preempted.

      The district court also properly concluded that the statute of limitations

renders Hardine's claim untimely. See 29 U.S.C. y 160 (b) (six-month statute of

limitations for a y 301 claim). In this case, Hardine's claim based on OPEIU's

alleged error in failing to represent her accrued in June 2007 when OPEIU

informed Hardine that it would not continue to pursue her grievance. Hardine did

not file suit against OPEIU until March 2009. Thus, her claim is untimely.

      Hardine's assertion that equitable tolling should apply because she made

good faith efforts to resolve the claim short of litigation by filing with the DFEH is

unpersuasive. Hardine received her right to sue letter from DFEH in March 2008

but waited until March 2009 to file suit. Thus, even accepting the later March

2008 date, the statute of limitations had run prior to Hardine filing her suit against




                                          -3-
OPEIU. Accordingly, Hardine is not entitled to statutory tolling of the six-month

statute of limitations.

       AFFIRMED.




                                        -4-
                                                                                FILED
Hardine v. Office and Prof'l Employees Int'l Union , 10-56667                    MAR 29 2012

                                                                            MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring:                                               U.S . CO U RT OF AP PE A LS




       I write separately because I would hold that the union's statutory duty of fair

representation governs the issues of removal and preemption in this case, not y 301

of the Labor Management Relations Act ('LMRA'). The 'statutory duty of fair

representation . . . includes a statutory obligation to serve the interests of all

members without hostility or discrimination toward any, to exercise its discretion

with complete good faith and honesty, and to avoid arbitrary conduct.' Vaca, 386

U.S. at 177. Hardine's sole claim is that the union 'failed and refused to fairly,

properly, fully, adequately or accurately provide her with quality representation in

her claims against her employer' and 'denied her representation and discriminated

against her because of her race . . . and her disability.' On its face, this is clearly a

claim for the union's breach of its statutory duty of fair representation. Thus, the

district court had subject-matter jurisdiction, and the case was properly removed to

the federal district court. See Stallcop v.Kaiser Foundation Hospitals, 820 F.2d

1044, 1047 (9th Cir. 1987). Hardine's state law claims are also preempted by the

federal duty of fair representation. See Adµins v. Mireles, 526 F.3d 531, 539,

541-42 (9th Cir. 2008).
