Sergei Portnoy v. Veolia Transportation Services, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGEI PORTNOY,
Plaintiff - Appellant,
v.
VEOLIA TRANSPORTATION
SERVICES, INC.,
Defendant - Appellee.
No. 11-17782
D.C. No. 2:10-cv-02730-GEB-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Sergei Portnoy appeals pro se from the district court’s summary judgment in
his employment action alleging that defendant fired him because of his national
origin in violation of federal and state law. We have jurisdiction under 28 U.S.C.
FILED
JAN 03 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1291. We review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639
(9th Cir. 2004). We may affirm on any ground supported by the record, Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008), and we affirm.
The district court properly granted summary judgment on Portnoy’s
discrimination claims because Portnoy failed to raise a genuine dispute of material
fact as to whether defendant’s legitimate, non-discriminatory reason for
terminating his employment was pretextual. See Vasquez, 349 F.3d at 640-42 &
n.5 (discussing elements of a discrimination claim under Title VII and explaining
that evidence of pretext must be specific and substantial); see also Cal. Const. art.
I, § 8; Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (same
analysis applies to discrimination claims under Title VII and California’s Fair
Employment and Housing Act (“FEHA”)).
The district court properly granted summary judgment on Portnoy’s breach
of contract and breach of implied covenant claims because these claims are
preempted by Section 301 of the Labor Management Relations Act (“LMRA”).
See Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987) (a
state law contract claim is preempted by section 301 of the LMRA if the subject
matter of the contract is covered by a collective bargaining agreement or the
employee relies on that agreement in asserting the contract claim); Guz v. Bechtel

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Nat’l Inc., 8 P.3d 1089, 1112 (Cal. 2000) (a claim that realleges a breach of
contract as a violation of the implied covenant of good faith and fair dealing is
superfluous).
The district court properly granted summary judgment on Portnoy’s
intentional and negligent infliction of emotional distress claims because these
claims are preempted by California’s workers’ compensation scheme. See Charles
J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 14 P.3d 234, 244 (Cal. 2001)
(where the acts that give rise to a cause of action are “a ‘normal’ part of the
employment relationship,” the cause of action is subject to the exclusivity of the
workers’ compensation law (citation omitted)).
Summary judgment on Portnoy’s “public policy” claim was proper because
Portnoy failed to raise a triable dispute as to whether his termination or allegedly
adverse treatment violated public policy. See Holmes v. Gen. Dynamics Corp., 22
Cal. Rptr. 2d 172, 177 fn. 8 (Ct. App. 1993) (elements of a public policy claim).
To the extent that Portnoy asserted a harassment claim under the FEHA, the district
court properly granted summary judgment because Portnoy failed to exhaust his
administrative remedies. See Okoli v. Lockheed Technical Operations Co., 43 Cal.
Rptr. 2d 57, 61 (Ct. App. 1995) (exhaustion is a jurisdictional prerequisite and
requires that the claimant specify the alleged wrongful act in his charge).

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Portnoy’s contentions concerning the existence or admissibility of
defendant’s evidence and the credibility of defendant’s witnesses are rejected.
AFFIRMED.

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