FILED
NOT FOR PUBLICATION
NOV 07 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTIN HARTER, No. 18-35598
Plaintiff-Appellant, D.C. No. 2:16-cv-00438-SMJ
v.
MEMORANDUM*
MEGAN J. BRENNAN,
Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Argued and Submitted October 25, 2019
Seattle, Washington
Before: CLIFTON, IKUTA, and BENNETT, Circuit Judges.
Plaintiff-Appellant Justin Harter appeals the district court’s 12(b)(6)
dismissal of his breach of contract claim and its award of summary judgment to the
Postmaster General on his Title VII employment discrimination claim. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and
remand.
In dismissing Harter’s breach of contract claim, the district court evidently
reviewed a short excerpt (pages 280-81) of the relevant MOU attached to the CBA.
This excerpt, submitted by defendant’s counsel, appeared to demonstrate that
Postal Support Employees (PSEs) were not covered by the contract’s requirement
that the Postal Service give advance notice to employees who are terminated for
cause. Reviewing the full CBA, as we must, given the district court’s finding that
it was incorporated by reference into the complaint, shows that this reading may be
erroneous. Page 290 of the MOU states that “[i]n the case of removal for cause
within the term of an appointment, a PSE shall be entitled to advance written
notice of the charges against him/her in accordance with the provisions of Article
16 of the National Agreement,” which on its face suggests that the notice
requirement applies to PSEs. We therefore reverse the dismissal of Harter’s breach
of contract claim and remand for further proceedings.
On appeal the government has primarily defended the dismissal of the
breach of contract claim by offering to us arguments not previously presented to
the district court: that Harter failed to allege that his union breached its duty of fair
representation, as the government contends he was required to do, and that the
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statute of limitations has run on bringing such a claim against the union. We leave
those arguments for consideration on remand by the district court. If the
government presents those contentions, Harter should be given leave to amend his
complaint in response to the arguments, if he requests leave to do so.
To prevail against a motion for summary judgment on a Title VII claim, a
plaintiff is required to establish a prima facie case of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). For reasons including those
cited by the district court, Harter was unable to establish a prima facie case of
employment discrimination with respect to any of the three adverse employment
actions he suffered: his termination in late 2014 and his failure to be rehired for
either of the positions to which he applied in late 2015. The record does not
demonstrate that there were similarly situated employees of different sexes or races
who were treated more favorably than he was with respect to these actions.
Accordingly, the district court did not err in awarding summary judgment to the
Postmaster General.
Each party to bear its own taxable costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
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