                           NOT FOR PUBLICATION                           FILED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

GLORIA FRANKLIN,                                No.    18-16748

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-00303-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

                     Argued and Submitted February 12, 2020
                            San Francisco, California

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

      Gloria Franklin appeals the district court’s order dismissing her action

brought under the Fair Employment and Housing Act (FEHA). We review de



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). See Painters & Allied Trades Dist. Council 82 Health Care Fund v.

Takeda Pharm. Co. Ltd., 943 F.3d 1243, 1248 (9th Cir. 2019).

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

evaluate Franklin’s claims. Rather, the district court applied binding precedent to

determine whether Franklin’s claims were facially plausible. 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 Franklin’s claims for age,

disability, and race discrimination. To state a discrimination claim under the

FEHA, a plaintiff must plausibly allege that she (1) “was a member of a protected

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

action”; and (4) “circumstances suggest a discriminatory motive.” Wilson v. Cable

News Network, Inc., 444 P.3d 706, 713 (Cal. 2019). Franklin has failed to allege

facts supporting a reasonable inference that Defendant-Appellee Adams &

Associates (“Adams”) declined to rehire her on account of her age, disability, or

race, or that Adams treated other similarly situated persons more favorably. Mere


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recitation of an element—for example, membership in a protected class—does not

suffice without some factual allegations suggesting an employer’s discriminatory

intent. See Iqbal, 556 U.S. at 678

      3. The district court did not err in dismissing Franklin’s failure-to-hire claim

because the complaint lacked sufficient allegations to state a plausible claim that

Adams had a discriminatory motive in refusing to rehire her for the position

sought. See Cal. Gov’t Code § 23940(a); Abed v. W. Dental Servs., Inc., 233 Cal.

Rptr. 3d 242, 248 (Cal. Ct. App. 2018) (explaining the elements of a failure-to-hire

claim). Specifically, Franklin failed to allege that Adams filled the available

positions with individuals who were not members of the same protected class as

her, or that Adams continued to consider comparably qualified applicants after

rejecting her. See Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 61 n.4 (Cal.

Ct. App. 2000). Franklin alleged only that Adams failed to rehire her on account

of her “protected characteristics,” including her age, disability, and race, and the

“disparate application of company practices, procedures, and policies to justify the

failure to hire other members of protected groups.” Such conclusory allegations do

not suffice.

      4. The district court properly dismissed the FEHA retaliation claim, as

Franklin did not allege a statutorily cognizable protected activity. See Cal. Gov’t

Code § 12940(h) (prohibiting retaliation against a person who opposed a forbidden


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practice, filed a complaint, testified, or assisted in a proceeding under the FEHA);

Moore v. Regents of Univ. of Cal., 206 Cal. Rptr. 3d 841, 864 (Cal. Ct. App. 2016)

(listing the elements of a FEHA retaliation claim). Non-specific assertions of

protected activities do not suffice. See Yanowitz v. L’Oreal USA, Inc., 3116 P.3d

1123, 1133 (Cal. 2005) (stating that “an employee’s unarticulated belief that an

employer is engaging in discrimination will not suffice to establish protected

conduct for the purposes of establishing a prima facie case of retaliation”).

      5.     The district court did not err in dismissing Franklin’s failure to

accommodate claim because Franklin failed to plausibly allege that Adams was

aware of the need to accommodate. See Cal. Gov’t Code § 12940(m)(1); Avila v.

Cont’l Airlines, Inc., 82 Cal. Rptr. 3d 440, 453 (Cal. Ct. App. 2008) (explaining

that an employer need only accommodate a known disability); Alamillo v. BNSF

Railway Company, 869 F.3d 919, 922 (9th Cir. 2017) (concluding that no plausible

accommodation claim exists if the employer fails to make a requested for

accommodation and there is no evidence that disability was the motivating fact in

the employer’s decision).

      6.     The district court correctly dismissed Franklin’s claim for failure to

engage in the interactive process, as the complaint contained no plausible

allegations that Adams was aware that Franklin had a medical condition that

required accommodation or that Franklin requested an accommodation. See Cal.


                                          4
Gov’t. Code § 12940(n).

      7.     Absent an actionable claim of discrimination, Franklin cannot

maintain a claim for failure to prevent discrimination. See Caldera v. Dep’t of

Corr. & Rehab., 235 Cal. Rptr. 3d 262, 273 (Cal. Ct. App. 2018).

      8.     The district court properly dismissed the claim for intentional

infliction of emotional distress, as Franklin failed to plausibly allege that Adams

engaged in “extreme and outrageous conduct.” Sarver v. Chartier, 813 F.3d 891,

907 (9th Cir. 2016). Franklin has alleged no conduct on the part of Adams other

than acts 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) (“A simple pleading of personnel management activity is insufficient to

support a claim of intentional infliction of emotional distress, even if improper

motivation is alleged.”).

      9.     The district court did not err in dismissing Franklin’s claim for failure

to provide copies of personnel files in violation of California Labor Code § 1198.5.

That provision applies only to “current and former employee[s].” Cal. Lab. Code

§ 1198.5. Franklin failed to allege that she was employed by Adams. Because the

California Labor Code pertains to only current and former employees,

Franklin failed to plausibly allege that Adams was obligated to provide copies of


                                          5
her personnel files.

      10.    Finally, the district court did not abuse its discretion in declining to

sua sponte grant Franklin a second opportunity to amend her 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. 1990) (citations omitted). Here, the district court

correctly determined that Franklin’s Amended Complaint could not be so cured. In

its Order granting Adams’ first Motion to Dismiss, the district court provided

detailed analysis of the deficiencies in Franklin’s initial Complaint. Because she

failed to remedy those deficiencies in her Amended Complaint, we agree with the

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

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

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

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

quotation omitted).

      AFFIRMED.




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                                                             FILED
Franklin v. Adams & Associates, Inc., Case No. 18-16748
                                                             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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