NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR TORRES, No. 23-15774

Plaintiff-Appellant, D.C. No. 2:20-cv-02241-MCE-JDP v.

AMERICAN WATER WORKS MEMORANDUM*

COMPANY, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted July 8, 2024** San Francisco, California

Before: FRIEDLAND, MENDOZA, and DESAI, Circuit Judges.

Plaintiff-Appellant Hector Torres appeals from the district court’s order

granting summary judgment in favor of Defendants-Appellees California

American Water Company, American Water Works Company, Inc. (together,

* 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). “American Water”), and International Union of Operating Engineers, Stationary

Local Number 39 (the “Union”). Reviewing the district court’s grant of summary

judgment de novo, Johnson v. Barr, 79 F.4th 996, 999 (9th Cir. 2023), we affirm.

Torres sued American Water—his former employer—and the Union,

alleging a hybrid fair representation/§ 301 claim under the Labor Management

Relations Act (“LMRA”). Such a claim “formally ‘comprises two causes of

action’: (1) a cause of action against the employer for breach of [a] collective

bargaining agreement, and (2) a suit against the [U]nion for breach of the

[U]nion’s duty of fair representation.” Rollins v. Cmty. Hosp. of San Bernardino,

839 F.3d 1181, 1185 (9th Cir. 2016) (quoting DelCostello v. Int’l Brotherhood of

Teamsters, 462 U.S. 151, 164 (1983)). To prevail on his hybrid claim, Torres

“must show both that (1) [American Water] breached the CBA, and (2) the Union

breached its duty of fair representation.” Id.; see also Swanigan v. FCA US LLC,

938 F.3d 779, 784 (6th Cir. 2019) (“[I]f the employee[] cannot satisfy both prongs

of that test, he ‘cannot succeed against any Defendant.’” (quoting Garrish v. Int’l

Union United Auto., Aerospace, & Agric. Implement Workers of Am., 417 F.3d

590, 594 (6th Cir. 2005))).

1. Summary judgment in favor of American Water as to Torres’s cause

of action for breach of the CBA was proper. Under the federal common law,

“[w]hen the meaning of an agreement is ambiguous on its face and contrary

2 inferences as to intent are possible, . . . [t]he court should look to parol evidence to

determine what the parties intended the conflicting provisions to mean.” Int’l

Brotherhood of Elec. Workers, AFL-CIO Loc. 47 v. S. Cal. Edison Co., 880 F.2d

104, 107 (9th Cir. 1989) (citations omitted). Conversely, if a CBA’s terms are

unambiguous, we limit our review to the plain terms of the agreement. Int’l

Brotherhood of Teamsters v. NASA Servs., Inc., 957 F.3d 1038, 1041 n.1, 1042 n.2

(9th Cir. 2020); see also Arizona v. Tohono O’odham Nation, 818 F.3d 549, 560–

61 (9th Cir. 2016).

Here, the CBA grants American Water “the exclusive right and power” to

“lay-off [or] discharge . . . employees, provided it does not conflict with the

provisions of this Agreement.” This provision unambiguously grants American

Water the exclusive right to discharge Torres. And the CBA does not limit that

right by requiring American Water to demonstrate good cause to support a

discharge. We therefore reject Torres’s invitation to consider extrinsic evidence in

construing the terms of the CBA. And because American Water had the right

under the CBA to discharge Torres with or without cause, American Water did not

breach the CBA when it terminated his employment.1 Accordingly, we affirm the

1 In addition to his argument that extrinsic evidence established a good cause requirement in the CBA, Torres argued before the district court, though not before us on appeal, that the CBA contains “an implied covenant . . . that protected Torres from discharge without just cause.” Torres forfeited any implied covenant

3 district court’s grant of summary judgment in favor of American Water on Torres’s

cause of action for breach of contract.

2. Because summary judgment as to breach of contract is dispositive of

Torres’s entire “hybrid fair representation/§ 301” claim, Rollins, 839 F.3d at 1185,

we need not, and do not, consider whether the Union was entitled to summary

judgment on Torres’s cause of action for breach of the duty of fair representation.

AFFIRMED.

argument by failing to raise it on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

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