Jerome A. Clay, Jr. v. PACIFIC BELL TELEPHONE COMPANY, INC., a California Corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEROME A. CLAY, JR.,
Plaintiff - Appellant,
v.
PACIFIC BELL TELEPHONE
COMPANY, INC., a California
Corporation; et al.,
Defendants - Appellees.
No. 13-17523
D.C. No. 2:13-cv-01028-GEB-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Jerome A. Clay, Jr. appeals pro se from the district court’s judgment
dismissing his action alleging various federal and state law claims related to his
employment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
FILED
JAN 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.
12(b)(6)); Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003) (dismissal for
failure to exhaust administrative remedies). We may affirm on any ground
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm in part, reverse in part, and remand.
The district court properly dismissed Clay’s claim under California’s Unruh
Civil Rights Act because “the Unruh Civil Rights Act has no application to
employment discrimination.” Rojo v. Kliger, 801 P.2d 373, 380 (Cal. 1990).
The district court properly dismissed Clay’s Title VII claim against the
Communications Workers of America District 9 Union AFL-CIO (“Union”)
because Clay failed to exhaust his administrative remedies against the Union. See
Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (“In order to bring a
Title VII claim in district court, a plaintiff must first exhaust [his] administrative
remedies.”).
The district court did not abuse its discretion by dismissing Clay’s Unruh
Civil Rights Act claim, and his Title VII claim against the Union without leave to
amend because amendment would be futile. See Chappel v. Lab. Corp. of Am.,
232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that “[a] district court acts within its discretion to deny leave to amend
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when amendment would be futile”).
Although the district court properly dismissed Clay’s Title VII claim against
Pacific Bell Telephone Company, Inc. (“Pacific Bell”) because Clay failed to
allege facts sufficient to show a prima facie case of race discrimination, see Leong,
347 F.3d at 1124 (elements of discrimination claim under Title VII), dismissal
without leave to amend was premature because amendment would not be futile, see
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“[B]efore dismissing a pro se
complaint the district court must provide the litigant with notice of the deficiencies
in his complaint in order to ensure that the litigant uses the opportunity to amend
effectively.” (citation and internal quotation marks omitted)).
The district court dismissed Clay’s claims under the California Fair
Employment and Housing Act (“FEHA”) and Cal. Bus. & Prof. Code § 17200 on
the ground they were preempted by the Labor Management and Relations Act
(“LMRA”). However, not all of Clay’s allegations required interpretation of the
collective bargaining agreement to determine whether the alleged conduct was
wrongful. See Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007)
(finding no preemption where court will have to refer to provision of collective
bargaining agreement, and discrimination claim “does not depend on interpretation
of the collective bargaining agreement”; “We see no need to depart from a long
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line of our cases holding that FEHA employment discrimination claims are not
ipso facto preempted by § 301 of the LMRA.” (citations omitted)).
Although dismissal of Clay’s FEHA claims against the Union was proper
because Clay failed to plead that he exhausted applicable administrative remedies,
see Rodriguez v. Airborne Express, 265 F.3d 890, 896-97 (9th Cir. 2001) (outlining
FEHA administrative remedies requirement), and dismissal of Clay’s FEHA and
Cal. Bus. & Prof. Code § 17200 claims against Pacific Bell was proper on the same
ground as dismissal of the Title VII claim against Pacific Bell, see Metoyer v.
Chassman, 504 F.3d 919, 941 (9th Cir. 2007) (“California courts apply the Title
VII framework to claims brought under FEHA.”); Aleksick v. 7-Eleven, Inc., 140
Cal. Rptr. 3d 796, 801 (Cal. App. 2012) (“When a statutory claim fails, a derivative
UCL claim also fails.”), dismissal of these claims without leave to amend was
premature, see Akhtar, 698 F.3d at 1212.
Accordingly, we reverse the judgment as to Clay’s Title VII claim against
Pacific Bell, and FEHA and § 17200 claims against the Union and Pacific Bell, and
remand to the district court for further proceedings consistent with this disposition.
The parties shall bear their own costs on appeal.
AFFIRMED in part; REVERSED in part; and REMANDED.
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