Dan Gazzano v. Stanford University , 649 F. App'x 610 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAN GAZZANO, No. 14-15577
Plaintiff - Appellant, D.C. No. 5:12-cv-05742-PSG
v.
MEMORANDUM*
STANFORD UNIVERSITY; SEIU
HIGHER EDUCATION WORKERS
LOCAL 2007, SERVICE EMPLOYEES
INTERNATIONAL UNION,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Argued and Submitted April 14, 2016
San Francisco, California
Before: WALLACE, SCHROEDER, and KOZINSKI, Circuit Judges.
Plaintiff-Appellant Dan Gazzano appeals from the district court’s summary
judgment in favor of his former employer, Stanford University, and his Union,
Local Chapter 2007 of the Service Employees International Union Higher
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Education Workers. Stanford terminated Gazzano from his job as a
groundskeeper. The termination letter explained that the termination was on
account of a long history of inappropriate and harassing comments, including
racist, sexist, and homophobic remarks about colleagues.
Although the district court dismissed the breach of contract claim against
Stanford on preemption grounds, such a claim may be maintained pursuant to
§ 301 of the Labor Management Relations Act, 29 U.S.C. § 185, if the plaintiff is
able to show that the union breached its duty of fair representation. Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 987 (9th Cir. 2007). The Union, however,
investigated Gazzano’s grievance, carried it through three steps of the grievance
procedures and negotiated a settlement, which Gazzano declined to accept.
Relying on counsel’s evaluation of the case that the arbitration would be
unsuccessful, the Union decided not to proceed to arbitration. In response to the
Union’s motion for summary judgement, Gazzano abandoned the allegations of his
complaint, that the Union had acted out of animus, and attempted to argue a new
theory unsupported by the pleadings. Gazzano failed to establish any breach of the
Union’s duty of fair representation.
Moreover, the record bears out the legitimate, nondiscriminatory reasons
Stanford provided in its termination letter. There is no evidence that the reasons
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for termination were pretextual or that Stanford treated Gazzano more harshly than
it treated other individuals in similar circumstances.
Gazzano’s disability discrimination claim fails for the reasons stated by the
district court.
The district court did not abuse its discretion in limiting discovery to a
period beginning in 2011, corresponding to the time Gazzano’s claims arose.
AFFIRMED.
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