William Whitsitt v. amazon.com

668 F. App'x 826

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2016
• Docket: 14-16258
• Status: Unpublished

Opinion

MEMORANDUM **

William J. Whitsitt appeals pro se from the district court’s judgment dismissing his employment action alleging federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir, 1998) (order). We may affirm on any ground supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in part, reverse in part, and remand.

The district court properly dismissed all of Whitsitt’s claims other than his claims arising from a failure to hire because Whitsitt failed to allege plausible claims. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” (citation and internal quotation marks omitted)); Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (age discrimination under the Age Discrimination in Employment Act (“ADEA”) based on termination); Poland v. Chertoff, 494 F.3d 1174, 1179-80 (9th Cir. 2007) (retaliation under the ADEA); Hughes v. Pair, 46 Cal.4th 1035, 95 Cal.Rptr.3d 636, 209 P.3d 963, 976 (2009) (intentional infliction of emotional distress); Sheehan v. S.F. 49ers, Ltd., 45 Cal.4th 992, 89 Cal.Rptr.3d 594, 201 P.3d 472, 477 (2009) (violation of California constitutional right of privacy); Stevenson v. Superior Court, 16 Cal.4th 880, 66 Cal.Rptr.2d 888, 941 P.2d 1157, 1158 (1997) (wrongful discharge in violation of public policy); Porten v. Univ. of S.F., 64 Cal.App.3d 825, 134 Cal.Rptr. 839, 841 (1976) (common-law invasion of privacy torts).

However, Whitsitt also alleged that he was not hired by Amazon.com, and he was qualified for the positions for which he applied, but younger, less qualified individuals were hired. Thus, we conclude that Whitsitt stated a claim for age discrimination based on failure to hire. See Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987) (prima facie case of age discrimination under the ADEA based on a failure or refusal to hire).

Contrary to Whitsitt’s contention that he was labeled a vexatious litigant, the record does not indicate that a vexatious litigant order has been entered against him.

We reject as without merit Whitsitt’s contentions that the district court was biased and prejudiced against him, and that Magistrate Judge Carolyn Delaney should step down from his case.

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).

All pending requests are denied.

AFFIRMED in part, REVERSED in part, and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3,