                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 31 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THOMAS O’HAGAN, Appellant - in                   No. 13-56432
propria persona, an individual,
                                                 D.C. No. 2:12-cv-07022-JFW-CW
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

HARTFORD FIRE INSURANCE
COMPANY, a California corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                     Argued and Submitted December 8, 2015
                              Pasadena, California

Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.

      Plaintiff-Appellant Thomas O’Hagan appeals from the district court’s order

granting summary judgment to Defendant-Appellee Hartford Fire Insurance

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
Company (“Hartford”) in this age discrimination, harassment, and retaliation suit

brought under California state law. O’Hagan claims multiple errors by the district

court. Because we find no error, we affirm.

      First, O’Hagan argues that the district court should have delayed ruling on

Hartford’s motion until he could take the depositions of his two former

supervisors. The district court properly found this argument lacked merit because

O’Hagan failed to comply with Federal Rule of Civil Procedure 56(d) by filing an

affidavit or declaration detailing the additional discovery needed. State of Cal. v.

Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (citation omitted) (explaining that the

party seeking a continuance “must show (1) that they have set forth in affidavit

form the specific facts that they hope to elicit from further discovery, (2) that the

facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist the

summary judgment motion.”). Moreover, even if O’Hagan’s request for a

continuance in his opposition to summary judgment constituted a formal request

under Rule 56(d), the district court did not abuse its discretion in concluding that

(1) the request for additional depositions was based on speculation that his

supervisors might contradict their own previously filed affidavits, and (2) O’Hagan

was not diligent because he waited until the end of the discovery period to notice

the depositions. See Kode v. Carlson, 596 F.3d 608, 612–13 (9th Cir. 2010) (per


                                            2
curiam) (explaining that the abuse of discretion standard requires the court “to

uphold a district court determination that falls within a broad range of permissible

conclusions”).

      Second, as it relates to his age discrimination claim under the California Fair

Employment and Housing Act (“FEHA”), California Government Code § 12940,

et seq., O’Hagan fails to establish that discrimination occurred “because of” his

age. Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013) (requiring the

plaintiff to establish that discrimination was a “substantial motivating factor” for

the alleged adverse employment decision). Here, O’Hagan has not established that

his age was a substantial motivating factor behind the alleged adverse employment

decision. Indeed, the crux of O’Hagan’s argument is that the discrimination

occurred because he reported a supervisor’s alleged wrongful conduct.

      Third, O’Hagan waived the claim that Hartford is liable for harassment

under the FEHA based on his opposition to Hartford’s alleged discriminatory

practices. Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010) (explaining

that arguments raised for the first time on appeal are waived). In the district court,

O’Hagan pursued the FEHA claim only on the ground that Hartford harassed him

because of his age, a point he does not argue on appeal in relation to his




                                           3
harassment claim. Moreover, the harassment claim is duplicative of O’Hagan’s

retaliation claim.

      Fourth, the district court correctly determined that O’Hagan’s theory of

retaliation is implausible. O’Hagan contends that the district court should have

drawn the inference that his supervisors intentionally caused his office to fail by

withholding needed resources in retaliation for O’Hagan reporting a prior

supervisor. However, it is not a plausible inference that O’Hagan’s supervisors

jeopardized their own positions and Hartford’s overall wellbeing to retaliate

against O’Hagan.

      Finally, O’Hagan cannot prevail on his claim that Hartford failed to prevent

age discrimination because the underlying age discrimination claim lacks merit.

See, e.g., Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1318 (2015)

(“There cannot be a claim for failure to take reasonable steps necessary to prevent

sex discrimination under section 12940, subdivision (k) if actionable sex

discrimination has not been found.”).

      AFFIRMED.




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