Sheila Blackman-Baham v. John Kelly ( 2018 )

NOT FOR PUBLICATION FILED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
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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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