Thomas O'Hagan v. Hartford Fire Insurance Co

FILED
NOT FOR PUBLICATION DEC 31 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS O’HAGAN, Appellant - in No. 13-56432
propria persona, an individual,
D.C. No. 2:12-cv-07022-JFW-CW
Plaintiff - Appellant,
v. MEMORANDUM*
HARTFORD FIRE INSURANCE
COMPANY, a California corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted December 8, 2015
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.
Plaintiff-Appellant Thomas O’Hagan appeals from the district court’s order
granting summary judgment to Defendant-Appellee Hartford Fire Insurance
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
Company (“Hartford”) in this age discrimination, harassment, and retaliation suit
brought under California state law. O’Hagan claims multiple errors by the district
court. Because we find no error, we affirm.
First, O’Hagan argues that the district court should have delayed ruling on
Hartford’s motion until he could take the depositions of his two former
supervisors. The district court properly found this argument lacked merit because
O’Hagan failed to comply with Federal Rule of Civil Procedure 56(d) by filing an
affidavit or declaration detailing the additional discovery needed. State of Cal. v.
Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (citation omitted) (explaining that the
party seeking a continuance “must show (1) that they have set forth in affidavit
form the specific facts that they hope to elicit from further discovery, (2) that the
facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist the
summary judgment motion.”). Moreover, even if O’Hagan’s request for a
continuance in his opposition to summary judgment constituted a formal request
under Rule 56(d), the district court did not abuse its discretion in concluding that
(1) the request for additional depositions was based on speculation that his
supervisors might contradict their own previously filed affidavits, and (2) O’Hagan
was not diligent because he waited until the end of the discovery period to notice
the depositions. See Kode v. Carlson, 596 F.3d 608, 612–13 (9th Cir. 2010) (per
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curiam) (explaining that the abuse of discretion standard requires the court “to
uphold a district court determination that falls within a broad range of permissible
conclusions”).
Second, as it relates to his age discrimination claim under the California Fair
Employment and Housing Act (“FEHA”), California Government Code § 12940,
et seq., O’Hagan fails to establish that discrimination occurred “because of” his
age. Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013) (requiring the
plaintiff to establish that discrimination was a “substantial motivating factor” for
the alleged adverse employment decision). Here, O’Hagan has not established that
his age was a substantial motivating factor behind the alleged adverse employment
decision. Indeed, the crux of O’Hagan’s argument is that the discrimination
occurred because he reported a supervisor’s alleged wrongful conduct.
Third, O’Hagan waived the claim that Hartford is liable for harassment
under the FEHA based on his opposition to Hartford’s alleged discriminatory
practices. Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010) (explaining
that arguments raised for the first time on appeal are waived). In the district court,
O’Hagan pursued the FEHA claim only on the ground that Hartford harassed him
because of his age, a point he does not argue on appeal in relation to his
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harassment claim. Moreover, the harassment claim is duplicative of O’Hagan’s
retaliation claim.
Fourth, the district court correctly determined that O’Hagan’s theory of
retaliation is implausible. O’Hagan contends that the district court should have
drawn the inference that his supervisors intentionally caused his office to fail by
withholding needed resources in retaliation for O’Hagan reporting a prior
supervisor. However, it is not a plausible inference that O’Hagan’s supervisors
jeopardized their own positions and Hartford’s overall wellbeing to retaliate
against O’Hagan.
Finally, O’Hagan cannot prevail on his claim that Hartford failed to prevent
age discrimination because the underlying age discrimination claim lacks merit.
See, e.g., Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1318 (2015)
(“There cannot be a claim for failure to take reasonable steps necessary to prevent
sex discrimination under section 12940, subdivision (k) if actionable sex
discrimination has not been found.”).
AFFIRMED.
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