Azaria Ting 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NOT FOR PUBLICATION FILED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
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.
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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.”
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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.
1