Byron Lee v. At&t Services, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2020
• Docket: 18-56415
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BYRON LEE, No. 18-56415

Plaintiff-Appellant, D.C. No. 2:17-cv-04642-FMO-SS

v. MEMORANDUM* AT&T SERVICES, INC., a Delaware Corporation; et al.,

Defendants-Appellees,

and

JAIME V. BENAVIDES, individually and as agent/employee/supervisor of AT&T Services, Inc./Pacific Bell; LEE VAGATAI, individually and as agent/employee/supervicor of AT&T Services/Pacific Bell,

Defendants.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted March 3, 2020**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Byron Lee appeals pro se from the district court’s summary judgment in his

diversity action alleging state law claims arising out of defendants’ termination of

his employment. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1161 (9th Cir. 2017). We

affirm.

The district court properly granted summary judgment on Lee’s breach of

contract claim because the claim was preempted by Section 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and Lee failed to

exhaust his remedies under his union’s collective bargaining agreement as required

under the LMRA. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th

Cir. 2007) (“[A]n employee’s failure to exhaust contractually mandated procedures

precludes judicial relief for breach of the collective bargaining agreement and

related claims [under the LMRA]”).

The district court properly granted summary judgment on Lee’s claim under

California’s Fair Employment and Housing Act (“FEHA”) alleging wrongful

termination in violation of public policy because Lee failed to raise a genuine

dispute of material fact as to whether his termination violated public policy. See

Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1032-33 (Cal. 1994) (to prevail on

a claim of wrongful termination in violation of public policy, a plaintiff must

2 18-56415 demonstrate that his termination violated a policy that is “(1) fundamental, (2)

beneficial for the public, and (3) embodied in a statute or constitutional

provision”).

The district court properly granted summary judgment on Lee’s intentional

infliction of emotional distress claim because Lee failed to raise a triable dispute as

to whether defendants engaged in extreme and outrageous conduct. See Hughes v.

Pair, 209 P.3d 963, 976 (Cal. 2009) (elements of an intentional infliction of

emotional distress claim); Pitman v. City of Oakland, 243 Cal. Rptr. 306, 311-12

(Ct. App. 1988) (termination from employment does not, by itself, constitute

extreme and outrageous conduct).

The district court properly granted summary judgment on Lee’s negligent

infliction of emotional distress claim because Lee failed to raise a triable dispute as

to whether defendants breached a legal duty owed to him. See Marlene F. v.

Affiliated Psychiatric Med. Clinic, Inc., 770 P.2d 278, 281 (Cal. 1989) (elements of

a negligent infliction of emotional distress claim).

The district court did not abuse its discretion in denying Lee’s request for an

extension of time to file a supplemental summary judgment opposition because

Lee did not demonstrate good cause. See Ahanchian v. Xenon Pictures, Inc., 624

F.3d 1253, 1258-60 (9th Cir. 2010) (setting forth standard of review and discussing

good cause requirement for extensions of time).

3 18-56415 We reject as meritless Lee’s contention that he was not an employee of

Pacific Bell Telephone Company.

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not

consider documents not presented to the district court. See United States v. Elias,

921 F.2d 870, 874 (9th Cir. 1990).

AFFIRMED.

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