Sheila Blackman-Baham v. John Kelly

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2018
• Docket: 17-16683
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHEILA BLACKMAN-BAHAM, No. 17-16683

Plaintiff-Appellant, D.C. No. 3:16-cv-03487-JCS

v. MEMORANDUM** KIRSTJEN NIELSEN*, Secretary, Department of Homeland Security,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Joseph C. Spero, Chief Magistrate Judge, Presiding***

Submitted July 10, 2018****

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

* Kirstjen Nielsen has been substituted for her predecessor, John Kelly, as Secretary of the U.S. Department of Homeland Security under Fed. R. App. P. 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The parties consented to the jurisdiction of the magistrate judge. See 28 U.S.C. § 636(c). **** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Sheila Blackman-Baham appeals pro se from the district court’s judgment

dismissing her employment action alleging race, sex, age, and disability

discrimination and retaliation. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal for

failure to state a claim under Fed. R. Civ. P. 12(b)(6)); Vinieratos v. United States

Dep’t of Air Force, 939 F.2d 762, 768 (9th Cir. 1991) (dismissal for failure to

exhaust administrative remedies). We may affirm on any basis supported by the

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th

Cir. 2008). We affirm.

The district court properly dismissed Blackman-Baham’s discrimination

claims under the Rehabilitation Act and Title VII stemming from her terminations

because Blackman-Baham failed to exhaust her administrative remedies. 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 her administrative

remedies.”); Vinieratos, 939 F.2d at 773 (failure to exhaust administrative

remedies “forecloses any claim to jurisdiction under the Rehabilitation Act”); cf.

Hays v. Postmaster Gen. of U.S., 868 F.2d 328, 330-31 (9th Cir. 1989) (a plaintiff

is precluded from raising a claim in federal court that she failed to present to the

2 17-16683 Merit Systems Protection Board).

The district court properly dismissed Blackman-Baham’s remaining claims

because Blackman-Baham failed to allege facts sufficient to state a plausible claim.

See Hebbe, 627 F.3d at 341-42 (although pro se pleadings are to be liberally

construed, a plaintiff must still present factual allegations sufficient to state a

plausible claim for relief); Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201,

1207-08 (9th Cir. 2008) (elements of a claim under the Age Discrimination in

Employment Act); Walton v. U.S. Marshals Serv., 492 F.3d 998, 1003 n.1, 1005

(9th Cir. 2007) (requirements for prima facie case under the Rehabilitation Act);

Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004) (elements of

a hostile work environment claim under Title VII); Bergene v. Salt River Project

Agric. Improvement & Power Dist., 272 F.3d 1136, 1140-41 (9th Cir. 2001)

(elements of a prima facie case of discrimination and retaliation under Title VII).

AFFIRMED.

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