                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        AUG 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

VICTORIA ROWELL,                                No.    17-55374

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-02442-JAK-AGR
 v.

SONY PICTURES TELEVISION INC.; et               MEMORANDUM*
al.,

                Defendants-Appellees.

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

                            Submitted August 9, 2018**
                               Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and EZRA,*** District
Judge.

      Victoria Rowell appeals the district court’s dismissal of her retaliation



      *
             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).
      ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
claims brought under 42 U.S.C. § 1981 and the California Fair Employment and

Housing Act (“FEHA”), Cal. Gov’t Code §§ 12940 et seq. We review the district

court’s judgment on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss

de novo, L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017), and

we affirm.

      1. Victoria Rowell is an African American actress who appeared on CBS’s

long-running soap opera, The Young & the Restless (“Y&R”), from 1990 through

2007, as Drucilla Barber Winters. During her seventeen-year run on Y&R, Rowell

advocated for greater opportunities for racial minorities in the television industry

and on Y&R in particular. Beginning in 2005, Rowell sought opportunities for

herself to write and direct episodes of Y&R. Appellees, however, denied her

requests. In 2007, Rowell left Y&R to seek writing opportunities elsewhere, after

which she continued advocating for greater minority inclusion in the television

industry.

      In early 2010, Rowell approached Appellees seeking to be rehired in the role

of Drucilla. She received a letter on October 18, 2011 indicating that Appellees

would not rehire her. Undeterred, Rowell redoubled her efforts in the summer of

2012. On October 19, 2012, she received an email from Steve Kent, SONY’s

Senior Vice President, stating that “Bringing back the character of Dru is not a

creative direction the show wishes to take.” Rowell subsequently commenced her

§ 1981 and FEHA actions alleging retaliatory failure-to-hire stemming from her


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diversity advocacy.

      2. “[Section] 1981 prohibits discrimination in the ‘benefits, privileges, terms

and conditions’ of employment.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,

1103 (9th Cir. 2008) (quoting 42 U.S.C. § 1981(b)). To state a prima facie claim of

retaliation under either § 1981 or FEHA, “a plaintiff must prove that (1) she

engaged in a protected activity; (2) she suffered an adverse employment action;

and (3) there was a causal connection between the two.” See id. at 1108; see also

Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000) (“Because of the similarity

between state and federal employment discrimination laws, California courts look

to pertinent federal precedent when applying our own statutes.”).

        Inherent in the standard for retaliatory failure-to-hire is the existence of an

open “position” to which the plaintiff applied. See Ruggles v. Cal. Polytechnic

State Univ., 797 F.2d 782, 786 (9th Cir. 1986) (“This standard requires a plaintiff to

show that the position for which she applied was eliminated or not available to her

because of her protected activities.”). Rowell did not apply for an open position

when she sought to reprise her role as Drucilla on Y&R; Drucilla had been written

off the show in 2007 and there is no indication that Appellees planned to bring her

back. Rowell therefore fails to state a prima facie claim for retaliatory failure-to-

hire under either § 1981 or FEHA.

      3. Rowell nevertheless argues that she has proffered “direct evidence” of

discriminatory animus. We have explained that a plaintiff may “proceed by simply


                                           3
producing ‘direct or circumstantial evidence demonstrating that a discriminatory

reason more likely than not motivated the employer.’” Surrell, 518 F.3d at 1105

(quoting Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir. 2007)). But we have

never suggested that proffering direct evidence alters the character of an “adverse

employment action” in a retaliatory failure-to-hire claim. As Ruggles and Guz

make plain, such a claim is premised on an employer’s rejection of a candidate for

an open position. See Ruggles, 797 F.2d at 785–86; Guz, 24 Cal. 4th at 355.

Indeed, it stands to reason that an adverse employment action against a prospective

employee arises only if there is employment to be had in the first place. Thus,

whatever the substance of Rowell’s purported direct evidence, it cannot overcome

her failure to satisfy a necessary criterion for stating an actionable retaliatory

failure-to-hire claim.1

      AFFIRMED.




1
       At any rate, we observe that Rowell’s purported direct evidence—statements
by four individuals—fails to show that “a discriminatory reason more likely than
not motivated” Appellees in declining to re-hire her. See Surrell, 518 F.3d at 1105.
Only one of the four statements includes even a hint of discriminatory motive, but
that statement comes from a journalist paraphrasing a statement by an employee of
Appellees, and is therefore likely inadmissible hearsay.

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