Richard Hubbard v. Kaiser Foundation Health Plan , 692 F. App'x 425 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD R. HUBBARD, No. 16-56399
Plaintiff-Appellant, D.C. No. 3:14-cv-01925-H-JLB
v.
MEMORANDUM*
KAISER FOUNDATION HEALTH PLAN;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Richard R. Hubbard appeals pro se from the district court’s summary
judgment in his employment action alleging gender discrimination in violation of
Title VII and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on Hubbard’s Title
VII claim because the claim was barred by the statute of limitations. See 42 U.S.C.
§ 2000e-5(f)(1); Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir.
2008) (a charge filed with California’s Department of Fair Employment and
Housing is deemed to have been received by the U.S. Equal Employment
Opportunity Commission the same day; plaintiff is entitled to a federal right-to-sue
notice within 180 days, after which plaintiff has 90 days to commence a civil
action under Title VII); Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992)
(90-day deadline to file a Title VII action “constitutes a statute of limitations” and
if plaintiff “fails to file within [the] 90-day period, the action is barred”). Contrary
to Hubbard’s contention, his filing of a complaint in state court does not justify the
application of equitable tolling because the state court complaint did not contain a
Title VII claim, and the complaint was filed after the deadline for filing his Title
VII claim had passed. See Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147,
151 (1984) (“One who fails to act diligently cannot invoke equitable principles to
excuse that lack of diligence.”).
2
The district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over Hubbard’s state law claims. See 28
U.S.C. § 1367(c)(3) (permitting district court to decline supplemental jurisdiction
if it has dismissed all claims over which it has original jurisdiction); Costanich v.
Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107 (9th Cir. 2010) (standard of
review).
The district court did not abuse its discretion in denying Hubbard’s motion
seeking disqualification of the district and magistrate judges because Hubbard
failed to establish any grounds for such relief. See United States v. Johnson, 610
F.3d 1138, 1147 (9th Cir. 2010) (setting forth standard of review and grounds for
recusal).
Hubbard’s motion to supplement the record on appeal (Docket Entry No. 14)
is granted.
We reject as without merit Hubbard’s contentions that the district judge was
biased and retaliated against him.
Hubbard’s motion for oral argument (Docket Entry No. 18) is denied.
AFFIRMED.
3