Unpublished Disposition, 874 F.2d 815 (9th Cir. 1987)

MEMORANDUM^** 

David N. Davis appeals the district court's dismissal of his employment discrimination action against the Hyatt Regency Oakland (Hyatt) and two Hyatt employees, for failure to state a claim. Davis also appeals the district court's order denying his motion for appointment of counsel. We affirm.

BACKGROUND

Davis worked as a night janitor at Hyatt's Oakland, California hotel. The terms of his employment were governed by a collective bargaining agreement (CBA) between Hyatt and Davis's collective bargaining representative, Hotel Employees and Restaurant Employees Union Local 28 (Local 28). The CBA provided for a two tier wage system under which newly hired employees earned less than the regular rate of pay during their first year of employment. The CBA also established grievance procedures for resolving disputes arising under the CBA.

Davis initially sued Hyatt, two Hyatt employees, Jerry Westenhaver and Darryl Hartley-Leonard, Local 28, and a union official, Mario Alverez. On September 18, 1987, Davis filed an amended complaint and voluntarily dismissed with prejudice his complaint against Local 28 and Alverez.¹  Davis's first amended complaint alleged violations of the following: (1) Title VII of the 1964 Civil Rights Act; (2) the Equal Pay Act; (3) the CBA; (4) the National Labor Relations Act; and (5) state and federal constitutional prohibitions against slavery.

On October 30, 1987, Davis filed a motion for appointment of counsel. The district court denied that motion. The court subsequently denied Davis's motion for reconsideration.

The district court denied Davis's motion to file a proposed second amended complaint on the ground that it would be subject to a motion to dismiss. Davis submitted a proposed third amended complaint. The district court subsequently granted Hyatt's motion to dismiss Davis's first amended complaint. Davis appeals. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. The District Court Properly Granted Hyatt's Motion to Dismiss.

A dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6) is a ruling on a question of law and as such is reviewed de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985), cert. denied, 474 U.S. 1056 (1986). If matters outside the complaint are considered, the motion to dismiss is treated as one for summary judgment. Fed. R. Civ. P. 12(b). In reviewing a grant of summary judgment, this court determines whether there is any genuine issue of material fact and whether the district court correctly applied the substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

Davis alleges that Hyatt practiced unlawful discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17. Title VII requires that a plaintiff file timely charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and receive a right to sue letter prior to bringing a Title VII claim in federal court. 42 U.S.C. §§ 2000e-5(b), (e), (f). Although the EEOC filing is not a jurisdictional prerequisite to suit in federal court, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), a plaintiff must either show compliance with the filing requirements or demonstrate that compliance was excused, Equal Employment Opportunity Commission v. Nevada Resort Association, 792 F.2d 882, 887 (9th Cir. 1986).

In denying Davis's motion to file a proposed second amended complaint, the district court informed Davis of the EEOC filing requirement. Davis has not alleged compliance with the filing requirement or any facts excusing compliance. The district court therefore properly dismissed Davis's Title VII claim. See id.

Davis appears to allege that Hyatt's two tier wage system violates the Equal Pay Act of 1963, 29 U.S.C. § 206(d). The Equal Pay Act, however, only prohibits wage discrimination "between employees on the basis of sex...." Id. The district court found that the applicable CBA provided that the lower first year wage applied to all new employees. Furthermore, Davis does not allege that the wage differential is based on sex. Since the court considered matters outside the pleadings, we treat the dismissal as a grant of summary judgment. We agree that there is no genuine issue as to whether the two tier wage system is based on sex and therefore summary judgment was properly granted.

Davis alleges that Hyatt breached certain provisions of the CBA. Generally, a bargaining unit employee may not bring a civil action for breach of a CBA unless he has exhausted his contractual grievance procedures. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965); Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1353 (9th Cir. 1985). Despite a failure to exhaust contractual remedies, however, an employee may seek judicial review of his claim if his union breached its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 185-86 (1967).

As noted by the district court, the CBA contains grievance and arbitration procedures for handling disputes arising under the agreement. Davis alleged neither that he exhausted his contractual remedies nor that Local 28 breached its duty of fair representation. Furthermore, Davis voluntarily dismissed with prejudice any claims against Local 28 and its officer, Alvarez. Treating the dismissal as a grant of summary judgment, we conclude that summary judgment was proper. As a bargaining unit employee, Davis cannot maintain this suit unless he exhausted his contractual remedies or Local 28 breached its duty to him. Davis has not raised a factual question as to either issue.

Davis appears to allege that Hyatt committed unfair labor practices by discriminating against him because of his union membership. Section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157, guarantees employees the right to join labor organizations. Employer violations of Section 7 rights are "unfair labor practices" under Section 8 of the NLRA, 29 U.S.C. § 158. Under the NLRA, allegations of unfair labor practices fall within the exclusive primary jurisdiction of the National Labor Relations Board. 29 U.S.C. § 160(a); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-45 (1959). Thus, the district court properly dismissed Davis's unfair labor practice claim.

Finally, Davis appears to allege that the conditions of his employment with Hyatt amounted to enslavement in violation of federal and state prohibitions against slavery. See U.S. Const. amend. XIII; Cal. Const. art. I, Sec. 6. Davis, however, alleges that he was employed and paid wages by Hyatt. Hyatt presented undisputed evidence that Davis was free to leave his employment at any time he wished. Treating the dismissal as a grant of summary judgment, we conclude that there is no genuine issue of fact regarding this claim and therefore summary judgment was properly granted.

We conclude that the district court properly dismissed Davis's first amended complaint. Furthermore, we find that the district court properly dismissed the complaint with prejudice. Despite several opportunities and instruction from the court as to the deficiencies in his complaint, Davis was unable to state cognizable claims. Therefore, dismissal with prejudice was proper. See Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (per curiam), cert. denied, 411 U.S. 935 (1973).

II. The District Court Did Not Abuse its Discretion in Denying Davis's Motion for Appointment of Counsel.

42 U.S.C. § 2000e-5(f) (1) (B) provides for appointment of counsel in employment discrimination cases in "such circumstances as the court may deem just." Three factors are relevant to the district court's decision whether to appoint counsel: (1) the plaintiff's financial resources; (2) whether the plaintiff made a diligent effort to secure counsel; and (3) whether the plaintiff's claim has merit. Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981). A reasoned decision by the district court is subject to review only for an abuse of discretion. Id.

The district court denied Davis's motion for appointment of counsel on the ground that he had not demonstrated that his claim had merit. Based on the foregoing review of Davis's claims, the district court clearly did not abuse its discretion in reaching this conclusion.

Davis argues on appeal, however, that the court should have appointed counsel pursuant to 28 U.S.C. § 1915(d). The district court based its ruling on 42 U.S.C. § 2000e-5(f) (1). It is unclear from the record whether Davis requested appointment below under section 1915(d). Appointment under section 1915(d), however, requires an evaluation of both the likelihood of success on the merits and the complexity of the issues involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Davis cannot demonstrate a likelihood of success on the merits. Furthermore, although Davis may have had difficulty articulating his claims pro se, he has not argued that the issues were sufficiently complex to require appointment of counsel. We find that Davis was not entitled to appointed counsel under section 1915(d).

CONCLUSION

The judgment of the district court is AFFIRMED.