                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MACCORD NGUYEN,                                 No.    18-16751

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-00292-TLN-KJN
 v.

ADAMS & ASSOCIATES, INC., a Nevada              MEMORANDUM*
corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                          Submitted February 12, 2020**
                            San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,***
District Judge.
Concurrence by Judge RAWLINSON

      Plaintiff-Appellant Maccord Nguyen (“Nguyen”) appeals the district court’s


      *
             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 Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
Order dismissing his claims under California’s Fair Employment and Housing Act

(“FEHA”), as well as his state law tort claim for intentional infliction of emotional

distress (“IIED”). We review de novo a district court’s grant of a Rule 12(b)(6)

motion to dismiss. Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1211 (9th Cir.

2018).

       1.     The district court did not apply a heightened pleading standard to

evaluate Nguyen’s claims. Rather, the district court properly applied binding

precedent to determine whether Nguyen’s claims were facially plausible, and

properly determined that they were not. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (“Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.”) (citation omitted); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (stating that complaint must provide “enough

facts to state a claim to relief that is plausible on its face”).

       2.     The district court properly dismissed Nguyen’s claims for age,

disability, race, color, and national origin discrimination. To state a discrimination

claim under FEHA, a plaintiff must plausibly allege that he: (1) “was a member of

a protected class”; (2) “was performing competently”; (3) “suffered an adverse

employment action”; and (4) “other circumstances suggest a discriminatory

motive.” Wilson v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019); see

Cal. Gov’t Code § 12940(a). Nguyen has failed to allege facts supporting a


                                             2                                 18-16751
reasonable inference that Defendant-Appellee Adams & Associates (“Adams”)

chose not to rehire him on account of his age, disability, race, color, or national

origin, or that Adams treated other similarly situated persons more favorably

during the hiring process. Mere recitation of an element—for example,

membership in a protected class—does not suffice without some factual allegations

suggesting an employer’s discriminatory intent.

      3.     The district court properly dismissed Nguyen’s failure-to-hire claim

because he failed to plausibly allege that Adams had a discriminatory motive in

refusing to hire him for the position sought. See Cal. Gov’t Code § 12940(a); Abed

v. W. Dental Servs., Inc., 233 Cal. Rptr. 3d 242, 248–49 (Cal Ct. App. 2018)

(explaining elements of failure-to-hire claim). Specifically, Nguyen failed to allege

that Adams filled available Resident Advisor positions with individuals who were

not members of the same protected class as him, or that Adams continued to

consider comparably qualified applicants after rejecting him. See Jensen v. Wells

Fargo Bank, 85 Cal. App. 4th 245, 255 n.4 (2000). Nguyen only alleged that

Adams failed to rehire him on account of his “protected characteristics, including

his age, disability, and race,” and “disparately appl[ied] company practices,

procedures, and policies to justify the failure to hire members of protected groups,

including [Nguyen].” Such conclusory allegations, however, do not suffice.

      4.     The district court properly dismissed Nguyen’s retaliation claim


                                           3                                    18-16751
because he failed to plausibly allege that he engaged in any statutorily cognizable

protected activity. FEHA’s anti-retaliation provision prohibits retaliation against a

person who has: (1) opposed any practices forbidden under FEHA; (2) filed a

complaint; (3) testified; or (4) assisted in a FEHA proceeding. Cal. Gov’t Code

§ 12940(h); see Moore v. Regents of Univ. of Cal., 206 Cal. Rptr. 3d 841, 864 (Cal.

Ct. App. 2016) (listing elements of FEHA retaliation claim). Nguyen only alleged

that Adams retaliated against him “by refusing to hire him on account of such

protected activities as being a dark-skinned Asian American of Vietnamese descent

over the age of 40 diagnosed with a medical condition.” Nguyen did not cite any

authority indicating that these “activities” are protected under FEHA; indeed, he

cannot because there is no such authority.

      5.     The district court properly dismissed Nguyen’s failure-to-prevent-

discrimination claim because he failed to allege sufficient facts stating underlying

claims for age, disability, race, color, and national origin discrimination. FEHA

does not provide private litigants with a stand-alone claim for failure to prevent

discrimination. See Caldera v. Dep’t of Corr. & Rehab., 235 Cal. Rptr. 3d 262,

273 (Cal. Ct. App. 2018).

      6.     The district court properly dismissed Nguyen’s failure-to-

accommodate claim because he failed to plausibly allege that Adams had notice of

his disability. See Cal. Gov’t Code § 12940(m)(1); Avila v. Cont’l Airlines, Inc.,


                                          4                                    18-16751
82 Cal. Rptr. 3d 440, 453 (Cal. Ct. App. 2008) (explaining that an employer need

only accommodate a known disability). Merely alleging that Adams was aware of

and failed to accommodate his “medical condition involving [d]iabetes”—without

any underlying factual allegations describing his physical limitations or Adams’

notice thereof—is not enough. See Avila, 82 Cal. Rptr. 3d at 453.

      7.     The district court properly dismissed Nguyen’s claim for failure to

engage in the interactive process because he failed to plausibly allege that he

requested an accommodation or that Adams otherwise knew that he required one.

See Cal. Gov’t Code § 12940(n); Alamillo v. BNSF Ry. Co., 869 F.3d 916, 922 (9th

Cir. 2017) (explaining that employee’s request for reasonable accommodation is a

prerequisite for claim under § 12940(n)).

      8.     The district court properly dismissed Nguyen’s IIED claim because he

failed to plausibly allege that Adams engaged in “extreme or outrageous conduct.”

Sarver v. Chartier, 813 F.3d 891, 907 (9th Cir. 2016) (quoting Hughes v. Pair, 209

P.3d 963, 976 (Cal. 2009)). Nguyen has alleged no other conduct on the part of

Adams than a simple act of personnel management—conduct that California courts

have deemed neither “extreme” nor “outrageous,” but “essential to the welfare and

prosperity of society.” Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d 741, 756

(Cal. Ct. App. 1996); id. (“A simple pleading of personnel management activity is

insufficient to support a claim of [IIED], even if improper motivation is alleged.”).


                                            5                                 18-16751
      9.     Finally, the district court did not abuse its discretion in declining to

sua sponte grant Nguyen a second opportunity to amend his Complaint. “[A]

district court should grant leave to amend even if no request to amend the pleading

was made, unless it determines that the pleading could not possibly be cured by the

allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.

Inc., 911 F.2d 242, 247 (9th Cir. 2000) (citations omitted). Here, the district court

correctly determined that Nguyen’s Amended Complaint (“FAC”) could not be so

cured. In its Order granting Adams’ first Motion to Dismiss, the district court

provided detailed analysis of the deficiencies in Nguyen’s initial Complaint.

Because he failed to remedy those deficiencies in his FAC, we agree with the

district court that it would be futile to now permit Nguyen a second opportunity to

amend. See, e.g., Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112,

1116 (9th Cir. 2014) (“[D]istrict court’s discretion in denying amendment is

particularly broad when it has previously given leave to amend.”) (citation and

quotation omitted).

      AFFIRMED.




                                           6                                     18-16751
                                                           FILED
Nguyen v. Adams & Associates, Inc., Case No. 18-16751
                                                           AUG 21 2020
Rawlinson, Circuit Judge, concurring
                                                        MOLLY C. DWYER, CLERK
                                                         U.S. COURT OF APPEALS
     I concur in the result.




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