                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 25 2011

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




                            FOR THE NINTH CIRCUIT



KANOE LALAWAI-CRUZ,                              No. 09-15064

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00537-SPK-
                                                 BMK
  v.

HAWAIIAN AIRLINES; IAM & AW                      MEMORANDUM *
LOCAL 1979; MICHAEL MIRANDA;
MAILE DEMELLO; CY
DUVAUCHELLE; JOHN DOES, 1 - 20,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Hawaii
                  Samuel P. King, Senior District Judge, Presiding

                     Argued and Submitted February 15, 2011
                               Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

       Kanoe Lalawai-Cruz appeals the district court’s grant of summary judgment

dismissing various claims he brought against his former employer, Hawaiian


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Airlines (“HAL”), individual employees of HAL, and the union that represented

him while he was employed by HAL, the International Association of Machinists

and Aerospace Workers, Local Lodge 1979 (“IAM”). We affirm.

      1. IAM did not breach its duty of fair representation. “A union breaches its

duty of fair representation when its ‘conduct toward a member of the collective

bargaining unit is arbitrary, discriminatory, or in bad faith.’” Beck v. United Food

& Commercial Workers Union, Local 99, 506 F.3d 874, 879 (9th Cir. 2007)

(quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).

      Lalawai-Cruz points to no evidence that IAM acted in bad faith or that its

conduct was arbitrary or discriminatory. To the contrary, IAM advocated on

behalf of Lalawai-Cruz at the disciplinary hearing and pursued his claim through

step 3 of the grievance procedure outlined in the collective bargaining agreement

(“CBA”). Moreover, Lalawai-Cruz’s contention that IAM acted arbitrarily in not

arguing at the hearing that HAL retaliated against him because he expressed

concerns about unsafe practices has no merit, because no evidence suggests that he

expressed any such concerns. See Peters v. Burlington N. R.R. Co., 931 F.2d 534,

540 (9th Cir. 1991).

      Lalawai-Cruz therefore has failed to raise a triable issue of fact that IAM

breached its duty of fair representation.


                                            -2-
         2. We also affirm the district court’s grant of summary judgment dismissing

Lalawai-Cruz’s state-law claims against HAL and the individual employee-

defendants.1

         First, Lalawai-Cruz has failed to establish a triable issue of fact supporting

his claim that he was terminated in violation of the Hawaii Whistleblowers’

Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62, or public policy, as

established in Parnar v. Americana Hotels, Inc., 652 P.2d 625 (Haw. 1982). The

district court held that these state-law causes of action were preempted by the

Railway Labor Act (“RLA”), but we disagree. Because these causes of action

“involve[] rights and obligations that exist independent of the CBA,” Lalawai-

Cruz’s claim is not preempted. See Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 260 (1994); see also Saridakis v. United States, 166 F.3d 1272, 1278 (9th Cir.

1999).

         Nonetheless, Lalawai-Cruz points to no evidence that his termination was

retaliatory. Thus, while the district court incorrectly dismissed Lalawai-Cruz’s

retaliation claim as preempted, we affirm the grant of summary judgment on the


         1
       Lalawai-Cruz does not contest dismissal of his claim that HAL was
negligent in hiring, training, and supervising its employees. Moreover, because
Lalawai-Cruz does not have a triable duty of fair representation claim against IAM,
he cannot pursue in court his breach of contract claims against HAL. See 45
U.S.C. § 153(i); Peters, 931 F.2d at 541–42.

                                            -3-
grounds that Lalawai-Cruz failed to advance evidence creating a genuine issue of

material fact that his termination violated the HWPA or the prohibition against

employment retaliation established in Parnar. Cf. Proctor v. Vishay

Intertechnology, Inc., 584 F.3d 1208, 1226 (9th Cir. 2009) (“[W]e may affirm the

district court’s holding on any ground raised below and fairly supported by the

record.”).

      Second, Lalawai-Cruz’s defamation claims were properly dismissed.

Statements made in the course of grievance-related proceedings are privileged

under the RLA and therefore cannot support Lalawai-Cruz’s defamation claim.

Hyles v. Mensing, 849 F.2d 1213, 1217 (9th Cir. 1988). Lalawai-Cruz has failed to

adduce any evidence to support his contention that the named defendants made

defamatory statements about him outside the CBA proceedings.

      Third, Lalawai-Cruz’s intentional infliction of emotional distress (“IIED”)

claims were properly dismissed. To the extent that Lalawai-Cruz’s IIED claims are

based on allegations that his discharge violated the procedures and criteria outlined

in the CBA, they are preempted by the RLA. See Saridakis, 166 F.3d at 1278.

Lalawai-Cruz’s IIED claims are not preempted to the extent they are based on the

alleged defamatory comments made outside the disciplinary hearing or on other

conduct unrelated to the CBA. See Tellez v. Pac. Gas & Elec. Co., 817 F.2d 536,


                                         -4-
539 (9th Cir. 1987). Nonetheless, Lalawai-Cruz’s IIED claims were properly

dismissed, because he has adduced no evidence to establish that the defendants

committed any independent intentional conduct that was “beyond all bounds of

decency.” See Calleon v. Miyagi, 876 P.2d 1278, 1288, 1289 n.7 (Haw. 1994)

(quoting Chedester v. Stecker, 643 P.2d 532, 535 (Haw. 1982)).

      Finally, Lalawai-Cruz’s conspiracy claims were also properly dismissed.

These claims are preempted to the extent the acts underlying his conspiracy claims

are the same as those underlying his other preempted claims—for instance, that the

defendants conspired to breach the CBA. Hyles, 849 F.2d at 1217. Lalawai-

Cruz’s conspiracy claims are not preempted to the extent they are based on the

same actions that underlie his non-preempted state-law claims. Id. But, under

Hawaiian law, because Lalawai-Cruz’s other claims cannot survive summary

judgment, his conspiracy claims fail as well. See, e.g., Robert’s Hawaii Sch. Bus v.

Laupahoehoe Transp. Co., 982 P.2d 853, 889 n.44 (Haw. 1999); Ellis v. Crockett,

451 P.2d 814, 822–23 (Haw. 1969).

      AFFIRMED.




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