NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NINA FRENCH, No. 17-35545
Plaintiff-Appellant, D.C. No. 2:15-cv-00859-JLR
v.
MEMORANDUM*
WASHINGTON STATE DEPARTMENT
OF HEALTH, Public Health Laboratories; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Nina French, a former employee of the Washington State Department of
Health (“DOH”), appeals pro se from the district court’s judgment dismissing her
action alleging violations of Title VII, the Age Discrimination in Employment Act
*
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).
(“ADEA”), the Americans with Disabilities Act (“ADA”), the Whistleblower
Protection Act (“WPA”), 42 U.S.C. § 1983, and state law. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Davidson v. Kimberly-Clark Corp.,
889 F.3d 956, 963 (9th Cir. 2018) (dismissal under Fed. R. Civ. P. 12(b)(1) and
(6)); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28
U.S.C. § 1915(e)). We affirm.
The district court properly dismissed French’s WPA claims for lack of
subject matter jurisdiction because the WPA applies to only federal employees of
executive agencies. See 5 U.S.C. § 2302(a)(2)(B)-(C) (the WPA applies only to
federal employees in a “covered position” in an “executive agency”).
The district court properly dismissed French’s § 1983 claim against DOH for
lack of subject matter jurisdiction because DOH is a state agency immune from
suit under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)
(§ 1983 does not override the states’ Eleventh Amendment immunity from being
sued in federal court). The district court properly dismissed French’s § 1983 claim
against the union defendant, the Washington Federation of State Employees
(“WFSE”), because French failed to allege facts sufficient to show that WFSE
acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To
state a claim under § 1983, a plaintiff … must show that the alleged deprivation
was committed by a person acting under color of state law.”).
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The district court properly dismissed French’s ADEA, ADA, and Title VII
claims because French failed to allege facts sufficient to show that any defendant
discriminated against her because of age, disability, or sex. See Santillan v. USA
Waste of Cal., Inc., 853 F.3d 1035, 1043 (9th Cir. 2017) (elements of ADEA
claim); Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (elements of ADA
claim); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1074 (9th Cir. 2002) (en
banc) (“[I]n order for harassment to be actionable [under Title VII] it has to be a
type of discrimination ‘because of’ race, color, religion, sex, or national origin.”).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over the state law claims after dismissing all federal
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). We treat the dismissal of the state law claims
as a dismissal without prejudice. See Gini v. Las Vegas Metro. Police Dep’t, 40
F.3d 1041, 1046 (9th Cir. 1994) (dismissal based on declining supplemental
jurisdiction should be without prejudice).
The district court did not abuse its discretion in denying French’s motion for
reconsideration because French failed to establish any grounds for such relief. See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
3 17-35545
Cir. 1993) (setting forth standard of review and grounds for relief under Fed. R.
Civ. P. 59(e) or 60(b)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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