                                                                             FILED
                             NOT FOR PUBLICATION                              DEC 21 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HAROLD J. RUCKER, Jr.,                            No. 10-16879

               Plaintiff - Appellant,             D.C. No. 2:09-cv-01673-JAM-
                                                  KJN
  v.

SACRAMENTO COUNTY CHILD                           MEMORANDUM *
PROTECTIVE SERVICES and
SACRAMENTO COUNTY HEALTH
AND HUMAN SERVICES,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Harold J. Rucker, Jr., appeals from the district court’s order dismissing with

prejudice his action alleging disability discrimination in violation of federal and


          *
             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).
state law and tortious discharge. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s decision regarding whether a claim is time-

barred. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir. 2000). Where the

facts are undisputed, the legal question of whether equitable tolling applies is also

reviewed de novo; otherwise, we review for abuse of discretion. Id. We affirm.

      It was error for the district court to conclude that it lacked subject matter

jurisdiction, because the time limits for filing a charge with the Equal Employment

Opportunity Commission (“EEOC”) and thereafter for filing a civil suit are not

prerequisites to federal court jurisdiction but instead operate as statutes of

limitation subject to equitable doctrines. Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393 (1982); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th

Cir. 1996). However, we may affirm on any ground supported by the record.

Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008).

      Rucker contends that the district court erred in dismissing his claims of

disability discrimination under the Americans with Disabilities Act and Title VII of

the Civil Rights Act because he filed a claim with California’s Department of Fair

Employment and Housing (“DFEH”) in 2008 with new allegations, and

government employees misled him into believing that claim would be cross-filed

with the EEOC. Thus, he argues, the limitations period should be equitably tolled.


                                            2
However, the DFEH issued its right-to-sue letter on June 18, 2008. Once the

DFEH letter issued, an EEOC charge was deemed filed; Rucker was entitled to a

right-to-sue letter from the EEOC 180 days thereafter, or on December 15, 2008.

See Stiefel v. Bechtel Corp., 624 F.3d 1240, 1243, 1245 (9th Cir. 2010). His civil

complaint was not filed until June 17, 2009. The commencement of the civil

action was thus outside the limitations period set forth in 42 U.S.C. § 2000e-

5(f)(1). See Stiefel, 624 F.3d at 1245. Nor has Rucker presented any facts that

would warrant equitable tolling of the limitations period. See Scholar v. Pac. Bell,

963 F.2d 264, 267–68 (9th Cir. 1992). The district court did not err in dismissing

the disability discrimination claims.1

      Rucker also contends that the district court erred in denying his request for

an evidentiary hearing. The decision whether to conduct an evidentiary hearing is

reviewed for abuse of discretion. McLachlan v. Bell, 261 F.3d 908, 910 (9th Cir.

2001). The magistrate judge’s Findings and Recommendations concluded that

even if Rucker’s allegations were taken as true, the limitations period would not be

equitably tolled, and no evidentiary hearing was needed. Because we agree that

even under the facts Rucker alleges, his claims are time-barred, there was no abuse

of discretion in the magistrate judge’s conclusion. See id. at 910–11.

      1
              To the extent Rucker contends that his suit is based on the right-to-sue
letter issued on May 25, 2007, his suit is even more untimely, and he has again not
shown entitlement to equitable tolling.

                                          3
      Rucker next contends that the district court erred in not granting him leave to

amend to allege a claim of retaliation under 42 U.S.C. § 1981(a). Because he

raised the prospect of alleging a claim under § 1981 for the first time in his

objections to the magistrate judge’s Findings and Recommendations, the district

court had discretion whether to consider the amendment. 28 U.S.C. § 636(b)(1);

Brown v. Roe, 279 F.3d 742, 744–45 (9th Cir. 2002); United States v. Howell, 231

F.3d 615, 621 (9th Cir. 2000). Section 1981 applies only to intentional

discrimination based on race. Pavon v. Swift Transp. Co., 192 F.3d 902, 908 (9th

Cir. 1999). Rucker’s complaint contains no reference to race. When Rucker first

mentioned this amendment, he presented only one conclusory allegation regarding

race-based discrimination but provided no facts to support that allegation. The

district court did not abuse its discretion when it denied Rucker the opportunity to

amend to assert a claim under § 1981.

      Rucker finally contends that the district court failed to conduct a de novo

review of the matter and to exercise its discretion as required by 28 U.S.C.

§ 636(b)(1) once Rucker had filed objections to the magistrate judge’s Findings

and Recommendations. See United States v. Howell, 231 F.3d 615, 621–22 (9th

Cir. 2000). We disagree. He has presented no facts to support that contention.

      AFFIRMED.




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