                           NOT FOR PUBLICATION                           FILED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

DENNIS RHODES,                                  No.    18-16749

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-00494-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.

      Dennis Rhodes appeals the district court’s order dismissing his action



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

determine whether Rhodes’ 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) (explaining that the

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

face”).

      2.     The district court properly dismissed Rhodes’ claims of age, race, and

color discrimination because Rhodes 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., 444 P.3d 706, 713 (Cal. 2019). Rhodes has failed to allege facts supporting a

reasonable inference that Defendant-Appellee Adams & Associates (“Adams”)


                                           2
declined to rehire him on account of his age, race, or color, or that Adams treated

other similarly situated persons more favorably. 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. See Iqbal, 556

U.S. at 678.

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

Rhodes 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);

Moore v. Regents of Univ. of California, 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., 116 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”).

      4.       The district court did not err in dismissing Rhodes’ failure-to-hire

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

that Adams had a discriminatory motive in refusing to hire him for the position

sought. See Cal. Gov’t Code § 12940(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


                                            3
claim). Specifically, Rhodes failed to allege that Adams filled the available

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

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

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

Ct. App. 2000). Rhodes only alleged that Adams failed to rehire him on account of

his “protected characteristics,” including his age, race, and color, and “disparately

appl[ied] company practices, procedures, and policies to justify the failure to hire

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

      5.     Absent an actionable claim of discrimination, Rhodes 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).

      6.     The district court properly dismissed the claim for intentional

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

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

907 (9th Cir. 2016). Rhodes 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


                                          4
motivation is alleged.”).

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

sua sponte grant Rhodes a second opportunity to amend his 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 Rhodes’ 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 Rhodes’ initial Complaint. Because he

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

district court that it would be futile to now permit Rhodes 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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