                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STEVE MARTINEZ,                                  No. 10-55215

              Plaintiff - Appellant,             D.C. No. 2:09-cv-06500-PA-RZ

  v.
                                                 MEMORANDUM *
NATIONAL RAILROAD PASSENGER
CORPORATION, a government-owned
corporation doing business as Amtrak,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                              Submitted June 8, 2011 **
                                Pasadena, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
      The district court properly granted Amtrak’s motion to dismiss for failure to

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Martinez

failed to allege discrimination on the basis of gender: neither the first amended

complaint nor the proffered second amended complaint alleged the existence of

any direct evidence of gender discrimination (such as a discriminatory comment by

an Amtrak decisionmaker), see, e.g., EEOC v. Boeing Co., 577 F.3d 1044, 1050

(9th Cir. 2009), or circumstantial evidence of such gender discrimination (such as a

similarly-situated female employee who was not fired after engaging in consensual

sexual conduct on the job), see, e.g., Surrell v. Cal. Water Serv. Co., 518 F.3d

1097, 1105–06 (9th Cir. 2008). Thus, Martinez’s reliance on Sassaman v.

Gamache is misplaced, as Martinez offered no evidence of sex stereotyping

comparable to Gamache’s justification of Sassaman’s firing: “you probably did

what she said you did because you’re male and nobody would believe you

anyway.” 566 F.3d 307, 311 (2d Cir. 2009). Because Martinez failed to establish

a prima facie case of discrimination on the basis of gender, the district court did not

err in dismissing Martinez’s California Fair Employment and Housing claim or his

state wrongful termination claim. See Stevenson v. Superior Court, 941 P.2d 1157,

1165 (Cal. 1997); Loggins v. Kaiser Permanente Int’l, 151 Cal. App. 4th 1102,

1108–09 (2007).


                                     Page 2 of 3
      Even assuming Martinez could bring a § 1983 claim against Amtrak or a

Bivens claim against Amtrak officials, both his first amended complaint and his

proffered second amended complaint failed to state a claim for any constitutional

violation. Because Martinez failed to allege discrimination on the basis of gender,

his equal protection claim fails. Moreover, because Martinez did not allege that

Amtrak prevented him from speaking or retaliated against him for so doing, his

complaint fails to state a claim for a First Amendment violation. Finally,

Martinez’s due process claim fails because he received both “notice and an

opportunity to respond” before he was terminated, see Cleveland Bd. of Ed. v.

Loudermill, 470 U.S. 532, 546 (1985), and his complaint did not allege any facts

suggesting that the post-termination officer was biased against him, cf. Clements v.

Airport Auth. of Washoe Cnty., 69 F.3d 321, 333 (9th Cir. 1995).

      The district court did not abuse its discretion in denying Martinez’s motion

for leave to amend his complaint to state a Bivens claim, as amendment would have

been futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

      AFFIRMED.




                                     Page 3 of 3
