Genbao Gao v. State of Hawaii, Department Of

FILED
NOT FOR PUBLICATION MAR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GENBAO GAO, No. 10-15311
Plaintiff - Appellant, D.C. No. 1:09-cv-00478-DAE-
BMK
v.
STATE OF HAWAII, DEPARTMENT MEMORANDUM *
OF THE ATTORNEY GENERAL,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
David Alan Ezra, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
Genbao Gao appeals pro se from the district court’s judgment dismissing his
action alleging employment discrimination and retaliation. 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. Cholla Ready Mix, Inc. v. Civish,
382 F.3d 969, 973 (9th Cir. 2004). We affirm.
The district court properly dismissed Gao’s claims raised in his first Equal
Employment and Opportunity Commission (“EEOC”) proceeding because he filed
this action more than ninety days after receipt of the right to sue letter. See 42
U.S.C. § 2000e-16(c); Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445
(9th Cir. 1990) (“An action brought under Title VII must be filed within ninety
days of receipt of a right to sue letter from the EEOC or appropriate state
agency.”).
The district court properly dismissed the discrimination claim because Gao
failed to allege facts sufficient to state a claim for relief. See also Abagninin v.
AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (conclusory allegations of
law are insufficient to defeat a motion to dismiss for failure to state a claim); see
also Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003)
(discussing the three prongs for a prima facie case of Title VII discrimination).
The district court properly dismissed Gao’s retaliation claim because Gao
failed to allege facts showing that he was terminated because he engaged in a
protected activity. See Learned v. City of Bellevue, 860 F.2d 928, 932-33 (9th Cir.
2 10-15311
1988) (Title VII protects only those employees who claim retaliation resulting
from their opposition to discrimination under Title VII).
The district court also properly dismissed the Title VI claim because Gao did
not establish that the Hawaii Attorney General’s Office’s primary objective was to
provide employment. See 42 U.S.C. § 2000d.
The district court properly dismissed Gao’s Americans with Disabilities Act
(“ADA”) claim on Eleventh Amendment grounds. See Bd. of Trs. of the Univ. of
Ala. v. Garrett, 531 U.S. 356, 360 (2001) (holding that states are immune from
private suits brought in federal court under Title I of the ADA).
Gao’s remaining contentions are unpersuasive.
AFFIRMED.
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