United States v. 2020-03-11 | 18-56415 | BYRON LEE V. AT&TSERVICES, INC. | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BYRON LEE,

Plaintiff-Appellant,

v.

AT&T SERVICES, INC., a Delaware
Corporation; et al.,

Defendants-Appellees,

and

JAIME V. BENAVIDES, individually and
as agent/employee/supervisor of AT&T
Services, Inc./Pacific Bell; LEE VAGATAI,
individually and as
agent/employee/supervicor of AT&T
Services/Pacific Bell,

Defendants.

No. 18-56415

D.C. No. 2:17-cv-04642-FMO-SS

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding

Submitted March 3, 2020
**

*
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).
FILED

MAR 11 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-56415

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Byron Lee appeals pro se from the district court’s summary judgment in his
diversity action alleging state law claims arising out of defendants’ termination of
his employment. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1161 (9th Cir. 2017). We
affirm.
The district court properly granted summary judgment on Lee’s breach of
contract claim because the claim was preempted by Section 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and Lee failed to
exhaust his remedies under his union’s collective bargaining agreement as required
under the LMRA. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th
Cir. 2007) (“[A]n employee’s failure to exhaust contractually mandated procedures
precludes judicial relief for breach of the collective bargaining agreement and
related claims [under the LMRA]”).
The district court properly granted summary judgment on Lee’s claim under
California’s Fair Employment and Housing Act (“FEHA”) alleging wrongful
termination in violation of public policy because Lee failed to raise a genuine
dispute of material fact as to whether his termination violated public policy. See
Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1032-33 (Cal. 1994) (to prevail on
a claim of wrongful termination in violation of public policy, a plaintiff must

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demonstrate that his termination violated a policy that is “(1) fundamental, (2)
beneficial for the public, and (3) embodied in a statute or constitutional
provision”).
The district court properly granted summary judgment on Lee’s intentional
infliction of emotional distress claim because Lee failed to raise a triable dispute as
to whether defendants engaged in extreme and outrageous conduct. See Hughes v.
Pair, 209 P.3d 963, 976 (Cal. 2009) (elements of an intentional infliction of
emotional distress claim); Pitman v. City of Oakland, 243 Cal. Rptr. 306, 311-12
(Ct. App. 1988) (termination from employment does not, by itself, constitute
extreme and outrageous conduct).
The district court properly granted summary judgment on Lee’s negligent
infliction of emotional distress claim because Lee failed to raise a triable dispute as
to whether defendants breached a legal duty owed to him. See Marlene F. v.
Affiliated Psychiatric Med. Clinic, Inc., 770 P.2d 278, 281 (Cal. 1989) (elements of
a negligent infliction of emotional distress claim).
The district court did not abuse its discretion in denying Lee’s request for an
extension of time to file a supplemental summary judgment opposition because
Lee did not demonstrate good cause. See Ahanchian v. Xenon Pictures, Inc., 624
F.3d 1253, 1258-60 (9th Cir. 2010) (setting forth standard of review and discussing
good cause requirement for extensions of time).

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We reject as meritless Lee’s contention that he was not an employee of
Pacific Bell Telephone Company.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not
consider documents not presented to the district court. See United States v. Elias,
921 F.2d 870, 874 (9th Cir. 1990).
AFFIRMED.