NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM J. WHITSITT,

Plaintiff-Appellant,

 v.

HEDY HOLMES STAFFING SERVICES; 

et al.,

Defendants-Appellees.

No. 15-17375

D.C. No. 2:13-cv-00117-MCE-AC

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Submitted December 14, 2016**

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

William J. Whitsitt appeals pro se from the district court’s judgment in his 

action alleging claims under the Age Discrimination in Employment Act 

(“ADEA”) and state law. We have jurisdiction under 28 U.S.C. § 1291. We 

 

* 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).

FILED

DEC 22 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-17375 

review de novo. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 

2004) (dismissal under Fed. R. Civ. P. 12(b)(6)); Barren v. Harrington, 152 F.3d 

1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)).

We may affirm on any ground supported by the record. Cigna Prop. & Cas. Ins. 

Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998). We affirm.

The district court properly dismissed Whitsitt’s ADEA claims against San 

Joaquin County Work Net and Sansome because Whitsitt failed to allege facts 

sufficient to show that either defendant can be held liable under the ADEA. See 29 

U.S.C. § 623 (ADEA applies to employers, employment agencies, and labor 

organizations); Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993) 

(explaining that the purpose of the “agent” provision in the ADEA was to 

incorporate respondeat superior liability, and that individual defendants cannot be 

held liable for damages under the ADEA).

Dismissal of Whitsitt’s ADEA claims against Hedy Holmes Staffing 

Services was proper because the record reflects that although Whitsitt filed a notice 

of charge, he failed to wait 60 days before filing this action. See 29 U.S.C. 

§ 626(d) (“No civil action may be commenced by an individual under this section 

[of the ADEA] until 60 days after a charge alleging unlawful discrimination has 
3 15-17375 

been filed with the Equal Employment Opportunity Commission.”); Forester v. 

Chertoff, 500 F.3d 920, 926 (9th Cir. 2007) (under § 626(d), private employees 

must file a charge with the EEOC before filing suit).

The district court did not abuse its discretion in dismissing Whitsitt’s state 

law claims in the absence of any cognizable federal claims. See 28 U.S.C. 

§ 1367(c)(3) (a district court may decline to exercise supplemental jurisdiction 

over state law claims upon the dismissal of the federal claims); Tritchler v. County 

of Lake, 358 F.3d 1150, 1153 (9th Cir. 2004) (standard of review).

Contrary to Whitsitt’s contention that he was labeled a vexatious litigant, the 

record does not indicate that a vexatious litigant order has been entered against 

him.

We reject as without merit Whitsitt’s contentions regarding bias.

Whitsitt’s requests, set forth in his opening brief, are denied.

AFFIRMED.