                           NOT FOR PUBLICATION                           FILED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

AZARIA TING,                                    No.    18-16711

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-01309-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 Azaria Ting (“Ting”) appeals the district court’s Order


      *
             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.
dismissing her claims under Title VII of the Civil Rights Act of 1964 (“Title VII”)1

and the Americans with Disabilities Act (“ADA”).2 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 Ting’s claims. Rather, the district court properly applied binding

precedent to determine whether Ting’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 Ting’s race and color

discrimination claims. To state a claim for disparate treatment under Title VII, a

plaintiff must plausibly allege that: (1) she was a member of a protected class; (2)

she was qualified for her position; (3) she experienced an adverse employment

action; and (4) similarly situated individuals outside her protected class were

treated more favorably, or other circumstances indicate discriminatory intent.



1
    42 U.S.C. § 2000(e) et seq.
2
    42 U.S.C. § 12112.

                                             2                                    18-16711
Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see 42

U.S.C. § 2000e-2. Ting’s claim falters with respect to the fourth requirement. She

has failed to allege facts supporting a reasonable inference that Defendant-

Appellee Adams & Associates (“Adams”) chose not to rehire her on account of her

race or color, or that Adams treated persons of different races or colors than Ting

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 Ting’s disability discrimination

claim because she failed to plausibly allege that Adams chose not to rehire her on

account of her disability. To state a claim for disability discrimination under the

ADA, a plaintiff must plausibly allege that she: (1) is a disabled person within the

meaning of the ADA; (2) is qualified, with or without reasonable accommodation,

to perform the essential functions of the job; and (3) suffered an adverse

employment action because of her disability. Bradley v. Harcourt, Brace & Co.,

104 F.3d 267, 271 (9th Cir. 1996); see 42 U.S.C. § 12112. Ting alleged that

Adams used “prior excused absences as a pretense to avoid rehiring her,”3 but

failed to allege any underlying facts supporting such an inference. Ting also


3
 Ting alleged that during her interview, she “disclosed that she had taken time off
work in the past due to a back injury she sustained in a car accident,” “to observe
Ramadan,” and “to mourn a death in the family.”

                                          3                                     18-16711
alleged that employees with equal or less experience were hired for similar

Resident Advisor positions, but failed to allege that those hired did not have

disabilities. On the record before us, there is no requisite causal link between

Ting’s alleged disability and Adams’ adverse employment action.

      4.     The district court properly dismissed Ting’s retaliation claim because

she failed to plausibly allege that she engaged in any statutorily cognizable

protected activity under Title VII or the ADA. For example, the ADA’s anti-

retaliation provision prohibits retaliation against a person who has: (1) opposed any

act or practice forbidden under the ADA; (2) filed a charge; (3) testified; or (4)

assisted in any investigation, proceeding, or hearing under the ADA. See 42

U.S.C. § 12203(a); see also id. § 2000e-3(a) (listing protected activities under Title

VII anti-retaliation statute). Ting only alleged that she is an African-American

woman with a medical condition, and that she is a union member; she did not cite

any authority indicating that either “activity” is protected under the ADA or Title

VII. Indeed, she cannot because there is no such authority. Ting also argues that

the district court failed to consider that she, both personally and through her union

representative, complained that Adams, in an attempt to discriminate against

minority employees, was not adhering to the collective bargaining agreement. But

based on the allegations in her Amended Complaint (“FAC”), any such

“complaints” occurred only after Adams informed Ting that she would not be


                                          4                                      18-16711
rehired as a Resident Advisor. Such a timeline does not support a retaliation claim

because an individual cannot be subject to retaliation for engaging in protected

conduct that takes place after the adverse employment action. See, e.g., Pardi v.

Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004) (stating that successful

ADA retaliation claim requires causal link between employee’s protected activity

and employer’s adverse employment action).

      5.     The district court properly dismissed Ting’s failure-to-hire claim

because she failed to plausibly allege that Adams’ adverse employment action was

motivated by discriminatory intent. See 42 U.S.C. § 2000e-2(a)(1); Dominguez-

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005) (stating elements

of failure-to-hire claim under Title VII). Specifically, Ting failed to allege that

Adams filled available Resident Advisor 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. Cf. Dominguez-Curry, 424

F.3d at 1038 (highlighting employer’s sexist comments as indicative of animus

toward class to which plaintiff belonged and therefore tied to position sought by

plaintiff). Ting only alleged that Adams failed to rehire her on account of her

“protected characteristics, including her race and medical condition,” and

“disparately appl[ied] company practices, procedures, and policies to justify failing

to hire other members of protected groups.” Such conclusory allegations do not


                                           5                                    18-16711
suffice.

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

claim because she failed to plausibly allege facts demonstrating that Adams had

notice of her disability. See 42 U.S.C § 12112. Under the ADA, an employer is

only required to make “reasonable accommodation to the known physical or mental

limitations of an otherwise qualified” disabled applicant or employee. 42

U.S.C. § 12112(b)(5)(A) (emphasis added); see, e.g., U.S. E.E.O.C. v. UPS Supply

Chain Sols., 620 F.3d 1103, 1110 (9th Cir. 2010) (stating the same). Merely

alleging that Adams was aware of and failed to accommodate her “medical

condition”—without offering any underlying factual allegations describing her

physical limitations and Adams’ notice thereof—is not enough.

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

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

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

See 42 U.S.C. § 12112; Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th

Cir. 2002) (stating that employer’s notice of employee’s need for accommodation

triggers ADA duty to engage in interactive process).

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

to sua sponte grant Ting a second opportunity to amend her Complaint. “[A]

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


                                           6                                     18-16711
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 Ting’s 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 Ting’s initial Complaint.

Because she failed to remedy those deficiencies in her FAC, we agree with the

district court that it would be futile to now permit Ting 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.




                                          7                                     18-16711
                                                         FILED
Ting v. Adams & Associates, Inc., Case No. 18-16711
                                                         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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