William J. Whitsitt v. Club Resource Group

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
GT/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM J. WHITSITT,
Plaintiff - Appellant,
v.
CLUB RESOURCE GROUP,
Defendant - Appellee.
No. 08-16549
D.C. No. 2:06-CV-02075-MCE-
KJM
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
William J. Whitsitt appeals pro se from the district court’s summary
judgment for his former employer, Club Resource Group, in his action alleging,
inter alia, age discrimination in violation of the Age Discrimination in Employment
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

GT/Research 08-16549 2
Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the
district court’s summary judgment, and for abuse of discretion the district court’s
denial of a motion to withdraw or amend an admission under Rule 36 of the
Federal Rules of Civil Procedure. Conlon v. United States, 474 F.3d 616, 621 (9th
Cir. 2007). We may affirm on any basis supported by the record. Gordon v.
Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We affirm.
The district court did not abuse its discretion by construing Whitsitt’s
opposition to the motion for summary judgment as a motion to withdraw
admissions under Rule 36, and denying the motion, because withdrawal would
have been prejudicial to Club Resources Group. See Conlon, 474 F.3d at 622-24
(affirming denial of a motion to withdraw admissions because of prejudice to the
party that relied on the admissions).
In light of Whitsitt’s admissions, the district court properly granted summary
judgment because Whitsitt failed to make the prima facie showing that he was
performing his job satisfactorily. See Coleman v. Quaker Oats Co., 232 F.3d 1271,
1280-81 (9th Cir. 2000) (explaining that a prima facie case of age discrimination
requires that plaintiff show he was (1) at least age 40; (2) performing his job
satisfactorily; (3) discharged; and (4) replaced by a substantially younger employee
with equal or inferior qualifications).

-- 2 of 3 --

GT/Research 08-16549 3
Whitsitt’s contention that the magistrate judge was impermissibly biased
against him is unavailing because he never filed a recusal motion pursuant to 28
U.S.C. § 144. See United States v. Castro, 887 F.2d 988, 1000 (9th Cir. 1989).
Because Whitsitt failed to raise his remaining claims in his opposition to
summary judgment, the district court did not err in granting summary judgment on
these claims. See Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008).
Whitsitt’s remaining contentions are unpersuasive.
AFFIRMED.

-- 3 of 3 --