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                           NOT FOR PUBLICATION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, 

, 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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