Nathaniel HOLMES, Plaintiff-Appellant, v. TENDERLOIN HOUSING CLINIC, INC.; Randall Shaw, Executive Director, Tenderloin Housing Clinic, Krista Gaeta, Housing Services Director, Tenderloin Housing Clinic, Service Employees International Union, Defendants-Appellees, 526 F. App'x 749

MEMORANDUM 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 WL 5520983, at *4, 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). 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, 105 S.Ct. 613, 83 L.Ed.2d 523 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 79 S.Ct. 773, 3 L.Ed.2d 775 (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 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 Holmés’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, 103 S.Ct. 2281, 76 L.Ed.2d 476 (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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.