Nathaniel Holmes v. Tenderloin Housing Clinic, Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHANIEL HOLMES,
Plaintiff - Appellant,
v.
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.
No. 11-16988
D.C. No. 4:09-cv-05781-PJH
MEMORANDUM*
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.
FILED
MAY 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
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).

-- 2 of 4 --

3
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 of 4 --

4
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.

-- 4 of 4 --