Linda Rovai-Pickett v. Hms Host, Inc. , 446 F. App'x 9 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LINDA ROVAI-PICKETT, No. 10-15296
Plaintiff - Appellant, D.C. No. 3:08-cv-01625-MMC
v.
MEMORANDUM *
HMS HOST, INC. and HOTEL
EMPLOYEES & RESTAURANT
EMPLOYEES LOCAL # 2,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Linda Rovai-Pickett appeals pro se from the district court’s summary
judgment in her action alleging, inter alia, that her employer wrongfully terminated
her in violation of its collective bargaining agreement (“CBA”) with her union, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
that the union breached its duty of fair representation. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Bliesner v. Commc’n Workers of Am., 464
F.3d 910, 913 (9th Cir. 2006) (summary judgment); Ramirez v. Fox Television
Station, Inc., 998 F.2d 743, 747 (9th Cir. 1993) (denial of motion to remand to
state court). We affirm.
The district court properly denied Rovai-Pickett’s motion to remand her
action to state court because Rovai-Pickett alleged state-law claims that were
preempted by federal law. See Ramirez, 998 F.2d at 747-48 (state-law claims are
preempted by § 301 of the Labor Management Relations Act if their resolution
depends upon the meaning of a CBA, and removal of such claims is permissible);
Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1048-49 (9th Cir. 1987)
(concluding that state-law claims were preempted by § 301).
The district court properly granted summary judgment on Rovai-Pickett’s
hybrid fair representation/§ 301 action because there was no genuine dispute of
material fact as to whether the union’s conduct was arbitrary, discriminatory, or in
bad faith. See Bliesner, 464 F.3d at 913 (“An aggrieved party may bring a hybrid
fair representation/§ 301 suit against the union, the employer, or both. In order to
prevail in any such suit, the plaintiff must show that the union and the employer
have both breached their respective duties.”); Peterson v. Kennedy, 771 F.2d 1244,
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1253 (9th Cir. 1986) (“A union breaches its duty of fair representation only when
its conduct toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” (citation and internal quotation marks omitted)).
We do not consider matters that are not specifically and distinctly raised and
argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
2009) (per curiam).
Rovai-Pickett’s remaining contentions are unpersuasive.
AFFIRMED.
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