Gloria Franklin v. Adams & Associates, Inc. ( 2020 )

NOT FOR PUBLICATION FILED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
GLORIA FRANKLIN, No. 18-16748
Plaintiff-Appellant, D.C. No.
2:16-cv-00303-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
Argued and Submitted February 12, 2020
San Francisco, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,**
District Judge.
Concurrence by Judge RAWLINSON
Gloria Franklin appeals the district court’s order dismissing her action
brought under the Fair Employment and Housing Act (FEHA). We review de
*
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.
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 Franklin’s claims. Rather, the district court applied binding precedent to
determine whether Franklin’s 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) (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 Franklin’s claims for age,
disability, and race discrimination. To state a discrimination claim under the
FEHA, a plaintiff must plausibly allege that she (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). Franklin has failed to allege
facts supporting a reasonable inference that Defendant-Appellee Adams &
Associates (“Adams”) declined to rehire her on account of her age, disability, or
race, or that Adams treated other similarly situated persons more favorably. Mere
2
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 did not err in dismissing Franklin’s failure-to-hire claim
because the complaint lacked sufficient allegations to state a plausible claim that
Adams had a discriminatory motive in refusing to rehire her for the position
sought. See Cal. Gov’t Code § 23940(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
claim). Specifically, Franklin failed to allege that Adams filled the available
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. See Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 61 n.4 (Cal.
Ct. App. 2000). Franklin alleged only that Adams failed to rehire her on account
of her “protected characteristics,” including her age, disability, and race, and the
“disparate application of company practices, procedures, and policies to justify the
failure to hire other members of protected groups.” Such conclusory allegations do
not suffice.
4. The district court properly dismissed the FEHA retaliation claim, as
Franklin did not allege a statutorily cognizable protected activity. See Cal. Gov’t
Code § 12940(h) (prohibiting retaliation against a person who opposed a forbidden
3
practice, filed a complaint, testified, or assisted in a proceeding under the FEHA);
Moore v. Regents of Univ. of Cal., 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., 3116 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”).
5. The district court did not err in dismissing Franklin’s failure to
accommodate claim because Franklin failed to plausibly allege that Adams was
aware of the need to accommodate. See Cal. Gov’t Code § 12940(m)(1); Avila v.
Cont’l Airlines, Inc., 82 Cal. Rptr. 3d 440, 453 (Cal. Ct. App. 2008) (explaining
that an employer need only accommodate a known disability); Alamillo v. BNSF
Railway Company, 869 F.3d 919, 922 (9th Cir. 2017) (concluding that no plausible
accommodation claim exists if the employer fails to make a requested for
accommodation and there is no evidence that disability was the motivating fact in
the employer’s decision).
6. The district court correctly dismissed Franklin’s claim for failure to
engage in the interactive process, as the complaint contained no plausible
allegations that Adams was aware that Franklin had a medical condition that
required accommodation or that Franklin requested an accommodation. See Cal.
4
Gov’t. Code § 12940(n).
7. Absent an actionable claim of discrimination, Franklin 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).
8. The district court properly dismissed the claim for intentional
infliction of emotional distress, as Franklin failed to plausibly allege that Adams
engaged in “extreme and outrageous conduct.” Sarver v. Chartier, 813 F.3d 891,
907 (9th Cir. 2016). Franklin 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
motivation is alleged.”).
9. The district court did not err in dismissing Franklin’s claim for failure
to provide copies of personnel files in violation of California Labor Code § 1198.5.
That provision applies only to “current and former employee[s].” Cal. Lab. Code
§ 1198.5. Franklin failed to allege that she was employed by Adams. Because the
California Labor Code pertains to only current and former employees,
Franklin failed to plausibly allege that Adams was obligated to provide copies of
5
her personnel files.
10. Finally, the district court did not abuse its discretion in declining to
sua sponte grant Franklin a second opportunity to amend her 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 Franklin’s 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 Franklin’s initial Complaint. Because she
failed to remedy those deficiencies in her Amended Complaint, we agree with the
district court that it would be futile to now permit Franklin 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.
6
FILED
Franklin v. Adams & Associates, Inc., Case No. 18-16748
AUG 21 2020
Rawlinson, Circuit Judge, concurring
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.
1