Charlie Dang v. Solar Turbines Inc.

FILED
NOT FOR PUBLICATION OCT 7 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLIE T. DANG, No. 09-55607
Plaintiff - Appellant, D.C. No. 3:07-cv-00520-MMA-
v. JMA
SOLAR TURBINES INC.,
MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Charlie T. Dang appeals pro se from the district court’s summary judgment
in his employment action alleging discrimination, harassment, retaliation and
failure to accommodate in violation of federal and state law. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo, Bias v. Moynihan, 508 F.3d 1212,
1218 (9th Cir. 2007), and we affirm.
The district court properly granted summary judgment on Dang’s claims
under Title VII, the Age Discrimination and Employment Act, and the California
Fair Employment and Housing Act (“FEHA”) because Dang failed to exhaust his
administrative remedies. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099-
1100 (9th Cir. 2002) (allegations omitted from an Equal Employment Opportunity
Commission (“EEOC”) charge generally may not be considered by a federal
court); Martin v. Lockheed Missiles & Space Co., 35 Cal. Rptr. 2d 181, 184 (Ct.
App. 1994) (EEOC right-to-sue notice does not satisfy administrative exhaustion
requirements for the California FEHA).
The district court properly granted summary judgment on Dang’s disability
discrimination, retaliation and failure to accommodate claims because Dang failed
to present any evidence creating a genuine dispute of material fact as to whether
defendant violated the Americans with Disabilities Act. See Bias, 508 F.3d at
1218-19 (affirming summary judgment where pro se non-moving party presented
no evidence creating genuine dispute of material fact); Allen v. Pac. Bell, 348 F.3d
1113, 1115-16 (9th Cir. 2003) (per curiam) (affirming summary judgment on
failure to accommodate claim because disabled employee who could no longer
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perform prior position refused to cooperate in the employer’s job-search process
for alternate positions).
The district court properly rejected Dang’s state law claim of intentional
infliction of emotional distress as preempted by California’s workers’
compensation scheme. See Cole v. Fair Oaks Fire Prot. Dist., 729 P.2d 743, 750
(Cal. 1987).
The district court did not abuse its discretion in managing discovery or by
denying Dang’s motions to file a fourth amended complaint, to re-tax costs, and to
appoint counsel. See Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir.
2004) (district court’s discretion to deny leave to amend complaint especially
broad where plaintiff previously filed amended complaint); Save Our Valley v.
Sound Transit, 335 F.3d 932, 944-45 n.12 (9th Cir. 2003) (reciting abuse of
discretion standard and requirements for costs determinations); Panatronic USA v.
AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002) (reviewing for abuse of discretion
order denying motion to re-open discovery); Johnson v. U.S. Treasury Dep’t, 27
F.3d 415, 416-17 (9th Cir. 1994) (per curiam) (reciting abuse of discretion standard
and factors relevant to appointment of counsel).
Dang’s remaining contentions are unpersuasive.
AFFIRMED.
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