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                            NOT FOR PUBLICATION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


                            FOR THE NINTH CIRCUIT


MAURICE GOENS,                                   No.    18-16750

              Plaintiff-Appellant,               D.C. No.
                                                 2:16-cv-00960-TLN-KJN
 v.

ADAMS & ASSOCIATES, INC.,
                                                 MEMORANDUM*
              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.

      Maurice Goens (Goens) appeals the district court’s order dismissing his

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

de novo a dismissal for failure to state a claim under Federal Rule of Civil

      *
             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.
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 Goens’ claims. Rather, the district court applied binding precedent to

determine whether Goens’ claims were facially plausible. See Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009) (stating that the facts must “permit the court to infer

more than the mere possibility of misconduct” to survive a motion to dismiss); see

also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that the

pleader must provide “enough facts to state a claim for relief that is plausible on its

face.”)

      2.     The district court properly dismissed Goens’ discrimination claims

based on race, gender, and religion because Goens failed to sufficiently allege

facts to state a plausible claim. To state a discrimination claim under the 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) “circumstances suggest a discriminatory motive.” Wilson v. Cable News

Network, Inc., 7 Cal. 5th 871, 885 (2019) (citation and footnote reference omitted).

Conclusory allegations that Adams terminated Goens because of his membership

in a protected class do not suffice. See Iqbal, 556 U.S. at 678.


                                           2
       3.      The district court correctly dismissed Goens’ claim for wrongful

termination, as a wrongful termination action is “limited to [] claims finding

support in an important public policy based on a statutory or constitutional

provision.” United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 336 (9th Cir.

2017) (applying California law) (citation omitted) (emphasis in the original).

Absent an actionable discrimination claim, the wrongful termination claim must

fail. See Davis v. Farmers Ins. Exch., 245 Cal. App. 4th 1302, 1323 (2016), as

modified (“[W]here a wrongful termination claim would not be cognizable under

the provisions of FEHA, the conduct at issue cannot offend fundamental public

policy. . . .”).

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

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

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

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

see also Moore v. Regents of Univ. of California, 248 Cal. App. 4th 216, 244

(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., 36 Cal.

4th 1028, 1046 (2005) (stating that “an employee’s unarticulated belief that an




                                               3
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 properly dismissed Goens’ harassment claim, as

Goens failed to state a plausible allegation that “the alleged harassment was so

severe that it created a hostile work environment.” Lawler v. Montblanc North

America, LLC, 704 F.3d 1235, 1244 (9th Cir. 2013); see also Cal Gov’t Code §

12940(j)(1). Personnel actions “such as hiring and firing . . . do not come within

the meaning of harassment.” Lawler, 704 F.3d at 1244.

      6.     Absent an actionable claim of discrimination, Goens cannot maintain

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

Rehab., 25 Cal. App. 5th 31, 43-44 (2018).

      7.     The district court properly dismissed the claim for intentional

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

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

907 (9th Cir. 2016). Hiring decisions do not fall within the class of conduct

meeting this standard. See Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80

(1996).

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

sua sponte grant leave to amend, as Goens failed to remedy the deficiencies in his


                                           4
complaint after the district court previously granted leave to amend. See Gonzalez

v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014)

(explaining that “the district court’s discretion in denying amendment is

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

      AFFIRMED.




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