Unpublished Disposition, 935 F.2d 277 (9th Cir. 1989)

No. 90-55974.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,^**  District Judge.

MEMORANDUM^*** 

OVERVIEW

Pro se appellant, Lloyd Vickroy, appeals the District Court's grant of Appellee Rockwell's motion for summary judgment. Vickroy's complaint against his employer, Rockwell, alleged civil rights violations under 42 U.S.C. sections 1981 and 1983, breach of union representation, breach of contract, unlawful discharge, unfair labor practices, and intentional infliction of emotional distress. The District Court's decision is affirmed.

* The District Court granted defendant's motion for summary judgment finding no triable issues of fact. The facts are not in dispute. This action arises from a delay in paying Vickroy for one day of overtime work. At the time of the alleged violations, Vickroy, a caucasian male, was a member of Local 2295 of the International Brotherhood of Electrical Workers ("union"). A collective bargaining agreement between the union and Vickroy's employer, Rockwell, was in place. The collective bargaining agreement clearly provided for resolution of disputes with respect to overtime pay. Vickroy filed a grievance in accordance with the collective bargaining agreement. Rockwell agreed to pay the amount in question and Vickroy refused to accept the payment and filed a lawsuit against Rockwell instead. The union is not a defendant in this suit.

II

We review a District Court's decision to grant or deny a motion for summary judgment de novo. Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1078-1079 (9th Cir. 1985); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985). The standard is the same that is applied by the District Court under Federal Rule of Civil Procedure 56(c) and the District Court's decision will only be affirmed if the record, read in the light most favorable to the non-moving party, establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Continental Casualty Co., 763 F.2d at 1079. A motion for summary judgment against a party is appropriate when that party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986).

* 42 U.S.C. section 1981 grants all persons the same right to make and enforce contracts "as is enjoyed by white citizens." 42 U.S.C. § 1981. There is no evidence to show that Mr. Vickroy was discriminated against by Rockwell based on his race in the making and enforcing of a contract. First, Vickroy is a white male. Second, even if Vickroy could show he was somehow discriminated against, section 1981 claims are limited to the making or enforcement of contracts. See Patterson v. McClean, 491 U.S. 164, 176 (1989). " [T]he right to make contracts does not extend ... to conduct by employer after contract relation has been established, including breach of terms of contract...." Id. at 177. Therefore, non-payment of overtime wages is not protected by section 1981, and summary judgment is appropriate.

B

42 U.S.C. section 1983 protects United States citizens from deprivation of rights by another person acting under color of state law. Because California state law requires arbitration of these types of disputes, Vickroy argues that Rockwell, a private corporation, was acting as an agent of the state when it failed to pay him overtime wages. Vickroy has offered no evidence to raise any triable issues of fact that Rockwell was an agent of the State of California. Absent any showing that Rockwell was acting under color of state law when it failed to pay Vickroy overtime wages, summary judgment is appropriate. See Celotex, 477 U.S. at 322-23.

C

Vickroy also argues that he was denied fair representation by the union. The union, however, is not a party to this suit.

Vickroy sought compensation for one day of overtime work that was delayed. The union representative produced a check from Rockwell for the overtime work which Vickroy refused to accept. There is absolutely no evidence to show that the union breached its duty to Mr. Vickroy. Vickroy has not designated any specific facts showing that there is a genuine issue for trial. Therefore, summary judgment is appropriate. See Celotex, 477 U.S. at 324.

Additionally, the statute of limitations on a claim of breach of the duty of fair representation is six months. DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 163-72 (1983); Kelley v. International Brotherhood of Electrical Workers, 803 F.2d 516, 518 (9th Cir. 1986). The alleged breach took place during the summer of 1988. Vickroy did not file his complaint until July 20, 1989. Because the statute of limitations has run on this claim, Vickroy is precluded from raising this issue now, and summary judgment is appropriate.

D

Although it is not clear from the briefs, it appears that Vickroy's allegations of breach of contract, unlawful discharge, and unfair labor practices are all based on Rockwell's inability to pay him overtime wages in a timely manner. A collective bargaining agreement was in place which covered disputes over wages. The agreement included grievance procedures and an arbitration clause. Vickroy filed a grievance and Rockwell conceded to owing Vickroy overtime wages. If Vickroy was not satisfied with the outcome of the grievance proceeding, he could have requested arbitration. Vickroy argues that failure to arbitrate was Rockwell's fault. Rockwell, however, complied with the grievance procedure by agreeing to pay the overtime wages. The arbitration clause included in the collective bargaining agreement was Vickroy's remedy. He failed to request such arbitration. Vickroy has made no showing to establish the existence of a triable issue of fact as to breach of contract, unlawful discharge, and unfair labor practices, therefore, summary judgment is appropriate. See Celotex, 477 U.S. at 322.

In addition, the statute of limitations on an action involving breach of a collective bargaining agreement is six months. DelCostello, 462 U.S. at 163-72; Kelley, 803 F.2d at 518. Because the statute of limitations has run on this claim, Vickroy is precluded from raising this issue now.

Furthermore, Vickroy's state law claims are preempted by section 301 of the Labor Management Relations Act because their resolution requires the interpretation of the collective bargaining agreement. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 413 (1988); Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 403 (9th Cir.). cert. denied, 111 S. Ct. 102 (1990).

E

Vickroy has offered no evidence to support a claim of intentional infliction of emotional distress. Absent any evidence of sufficiently outrageous conduct by Rockwell, Vickroy has failed to state a claim. McCabe v. General Foods Corp., 811 F.2d 1336, 1340 (9th Cir. 1987). Without any showing to establish this element of his case, summary judgment is appropriate. See Celotex, 477 U.S. at 322.

Furthermore, section 301 of the Labor Management Relations Act preempts Vickroy's claim of infliction of emotional distress that arises out of the same conduct which formed the basis of his claims of breach of contract, unfair labor practices, and unlawful discharge. Lingle, 486 U.S. at 425; Harris, 897 F.2d at 403.

F

Finally, Rockwell's request for attorney's fees based on the assertion that Vickroy filed a frivolous appeal is denied. Rockwell filed a cursory one and a half page brief which offered no guidance to this court on the issues or applicable law. Our expectation of practitioners in this court is much higher than was shown by Rockwell's counsel on this appeal. Therefore, Rockwell's prayer for costs is denied.

III

No genuine issues of material fact are in dispute. Vickroy has made no showing sufficient to establish the existence of any element essential to his case. The District Court's decision granting summary judgment is affirmed.

AFFIRMED.