                                                                              FILED
                           NOT FOR PUBLICATION                                APR 03 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICHARD HEYER,                                   No. 11-16853

              Plaintiff - Appellant,             D.C. No. 3:10-cv-04525-MMC

  v.
                                                 MEMORANDUM*
GOVERNING BOARD OF THE MT.
DIABLO UNIFIED SCHOOL DISTRICT
and DOES, 1 Through 25,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding

                            Submitted March 15, 2013**
                             San Francisco, California

Before: WALLACE and IKUTA, Circuit Judges, and GARBIS, 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 Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
      Appellant Heyer appeals from the district court’s judgment of dismissal,

arguing that the district court erred in dismissing certain claims from his First, Second,

and Third Amended Complaints. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      We review de novo a district court’s order granting a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). See Manzarek v. St. Paul Fire & Marine

Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). This court has harmonized recent

Supreme Court cases on pleadings, including those dealing with ADEA and Title VII

claims, and explained “two principles” relevant to analyzing the sufficiency of the

pleadings in this case:

      First, to be entitled to the presumption of truth, allegations in a complaint
      or counterclaim may not simply recite the elements of a cause of action,
      but must contain sufficient allegations of underlying facts to give fair
      notice and to enable the opposing party to defend itself effectively.
      Second, the factual allegations that are taken as true must plausibly
      suggest an entitlement to relief, such that it is not unfair to require the
      opposing party to be subjected to the expense of discovery and continued
      litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Although the district court did not

apply this precise standard, we nevertheless conclude that the district court did not err

in dismissing Heyer’s age discrimination, race discrimination, retaliation, and

harassment claims. See Serrano v. Francis, 345 F.3d 1071, 1076–77 (9th Cir. 2003).



                                            2
      To begin, although Heyer was not required to plead each element of the prima

facie showing for an age discrimination claim, see Sheppard v. David Evans & Assoc.,

694 F.3d 1045, 1050 n.2 (9th Cir. 2012), Heyer failed to allege that he was “‘either

replaced by [a] substantially younger [employee] with equal or inferior qualifications

or discharged under circumstances otherwise giving rise to an inference of age

discrimination,’” id. at 1050. While Heyer’s First Amended Complaint (FAC) alleges

that Heyer was released from his position as vice-principal of Northgate High School

and reassigned as a classroom teacher, the FAC does not state that Heyer’s

replacement was substantially younger or that a substantially younger individual

otherwise received more favorable treatment. Heyer’s mere conclusory statements that

he was discriminated against in violation of the ADEA are not sufficient to meet his

pleading burden. See Starr, 652 F.3d at 1216.

      Next, Heyer failed to plead a plausible claim for relief as to his race

discrimination claim. Apart from conclusory statements, Heyer makes no factual

assertion in his FAC that he was replaced by a person of another race or that a person

of another race was otherwise treated differently than he was. See Cornwell v. Electra

Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). We therefore conclude that

Heyer failed to“plausibly suggest an entitlement to relief” for his race discrimination

claim. Starr, 652 F.3d at 1216.


                                          3
      Likewise, Heyer failed to plead sufficiently his fifth claim for harassment.

While Heyer lists a number of vague unwelcome practices in his complaint, Heyer

fails to support this list with any facts that would permit an inference that these

practices were based on his membership in a protected group. See McGinest v. GTE

Serv. Corp., 360 F.3d 1103, 1113–15 (9th Cir. 2004). Instead, Heyer’s complaint

appears to contain merely the kind of “the-defendant-unlawfully-harmed-me

accusation[s]” that are insufficient to meet his pleading burden. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

      We also conclude that when viewed in light of the prima facie showing Heyer

is required to make, see Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,

1196–97 (9th Cir. 2003), Heyer’s Second Amended Complaint (SAC) fails to plead

adequately his retaliation claim. Although Heyer alleges that he protested a negative

evaluation on April 20, 2009, and then suffered an adverse employment action on

January 29, 2010, such a delay between the protected activity and the adverse action

is insufficient to give rise to an inference of causation. See Cornwell, 439 F.3d at

1036; Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003).

      Heyer’s Third Amended Complaint (TAC) also fails to allege sufficiently the

causal link between protected activity and adverse employment action. While Heyer

alleges new facts as to his employment, only two of the new factual allegations relate


                                           4
to events between the April 20, 2009 protest and the late-January adverse employment

action. While these two events occurred closer in time to the April 20, 2009 protected

activity, we conclude that the district court correctly determined that Heyer had not

pleaded sufficient facts to give rise to an inference that the April 22, 2009 meeting

with an assistant superintendent in which he requested an investigation and transfer

and the October 2009 instruction Heyer received to prepare “Initial Evaluation” goals

were not adverse employment actions. See Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 57 (2006). Heyer’s TAC, therefore, failed to allege a shorter time period

between protected activity and adverse employment action than was alleged in the

SAC. We thus conclude that Heyer’s TAC also failed to plead adequately a plausible

entitlement to relief for retaliation. See Starr, 652 F.3d at 1216.

      Finally, because allowing further amendment would have been futile, the

district court did not abuse its discretion in denying leave to amend. See Lopez v.

Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc).

      AFFIRMED.




                                           5
