Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1990)

No. 88-6641.

Submitted March 6, 1990^* .
Decided May 15, 1990.

Before DAVID R. THOMPSON and TROTT, Circuit Judges, and MALCOLM F. MARSH, District Judge.^*** 

MEMORANDUM^** 

This action involves claims by Centeno, a former employee of Transportation Leasing Co. ("TLC"), successor-in-interest to Greyhound Lines, Inc. ("Greyhound"), arising out of Centeno's termination from TLC when G.L.I. Holding Company ("GLI") purchased substantially all of TLC's assets. Centeno alleges the following claims: (1) age discrimination; (2) discrimination on the basis of ethnicity; (3) breach of the collective bargaining agreement; (4) discrimination because of union activity; (5) breach of the duty of fair representation; and (6) violation of the Employment Retirement Income Security Act ("ERISA"). The district court granted defendants-appellees' motions to dismiss with prejudice "as to all causes of action." We affirm.

STANDARD OF REVIEW

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. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); Hartford Accident & Indem. Co. v. Continental Nat'l American Ins. Companies, 861 F.2d 1184, 1185 (9th Cir. 1988). The existence of subject matter jurisdiction is also a question of law reviewed de novo. Kruso, 872 F.2d at 1421.

DISCUSSION

The filing of a charge with the Equal Employment Opportunity Commission ("EEOC") is a condition precedent to filing a civil action under both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 626(d), 633(b), and Title VII, 42 U.S.C. §§ 2000e-5(e), 2000e-5(f) (1). See Funk v. Sperry Corp., 842 F.2d 1129, 1134 (9th Cir. 1988); Dempsey v. Pacific Bell Co., 789 F.2d 1451, 1452 (9th Cir. 1986). Because Centeno did not specifically plead this condition precedent as required by Fed. R. Civ. P. 9(c), United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 101 (11th Cir. 1982), his discrimination claims were properly dismissed.¹ 

Similarly, the district court did not err in dismissing Centeno's breach of contract claim. This claim is barred under the six-month statute of limitations applicable to contract claims against an employer under Sec. 301(a) of the Labor Management Relations Act, 29 U.S.C. § 160(b). Del Costello v. International Bhd. of Teamsters, 462 U.S. 151, 155 (1983); see also Harper v. San Diego Transit Corp., 764 F.2d 663, 669 (9th Cir. 1985). Centeno knew or had reason to know that his "union had disposed of or was no longer pursuing his grievance" more than six months prior to his filing of this action. McNaughton v. Dillingham Corp., 707 F.2d 1042, 1047 (9th Cir. 1983), cert. denied, 469 U.S. 916 (1984).

Centeno's claim that his union, International Brotherhood of Teamsters, Local 495 ("Local 495"), breached its duty of fair representation by determining that GLI was not a successor to TLC and therefore was not bound by the collective bargaining agreement, was also properly dismissed for lack of subject matter jurisdiction based on preemption of this claim under the National Labor Relations Act ("NLRA"). Lumber Prod. Indus. Workers Local No. 1054 v. West Coast Indus. Relations Ass'n, Inc., 775 F.2d 1042, 1049 (9th Cir. 1985). Centeno filed charges with the National Labor Relations Board ("NLRB") concerning the same alleged breach of the union's fair representation duty. Centeno's claim that he was discriminated against based on union activity is also preempted by the NLRA because his claim arguably falls within Sec. 8 of the NLRA, 29 U.S.C. § 158, which lies within the exclusive jurisdiction of the NLRB. Laborers Health & Welfare Trust Fund for N. Cal. v. Advanced Lightweight Concrete Co., 484 U.S. 539, 543 n. 4 (1988); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959); Waggoner v. Dallaire, 767 F.2d 589, 592 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).

With respect to Centeno's claim that termination of the Western Greyhound Retirement Plan ("Plan") violated Sec. 510 of ERISA, 29 U.S.C. § 1140, neither the termination of the Plan nor the termination of Centeno's employment violated this section. Centeno does not allege that he was terminated with the specific intent of interfering with the attainment of any right under the Plan. Gavalik v. Continental Can Co., 812 F.2d 834, 851-52 (3d Cir. 1987) (Section 510 claim requires " [p]roof of specific intent to interfere with the attainment of pension eligibility"), cert. denied, 484 U.S. 979 (1987); accord Baker v. Kaiser Aluminum & Chemical Corp., 608 F. Supp. 1315, 1319 (N.D. Cal. 1984). The mere termination of a plan itself does not constitute a violation of ERISA. Aronson v. Servus Rubber Div., 730 F.2d 12, 16 (1st Cir. 1984), cert. denied, 469 U.S. 1017 (1984); West v. Greyhound Corp., 813 F.2d 951, 955 (9th Cir. 1987).

AFFIRMED.