NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 29 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MYRNA DE JESUS, No. 23-15206 Plaintiff-Appellant, D.C. No. 2:22-cv-00532-DJH v.

MEMORANDUM*

UNITEDHEALTH GROUP, INC., DBA

Optum360 Services, Inc., Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding Submitted October 29, 2024**

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

Plaintiff-Appellant Myrna De Jesus appeals pro se from the district court’s

dismissal of her claims for breach of contract and wrongful termination against

Defendant-Appellee UnitedHealth Group, Inc. dba Optum360 Services, Inc.

(“Optum”), as well as from the court’s confirmation of an arbitration award in

favor of Optum. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). I

After screening De Jesus’s original complaint under 28 U.S.C.

§ 1915(e)(2)(B), the district court dismissed that complaint with leave to amend.

De Jesus filed an amended complaint, and the court thereafter dismissed, at the

screening stage, all of her claims except for defamation. On appeal, De Jesus only

challenges the screening-stage dismissal of her claims for breach of contract and

wrongful termination. We review de novo the dismissal of these claims. See Doe

v. Garland, 17 F.4th 941, 944 (9th Cir. 2021).

A

The district court correctly dismissed De Jesus’s breach of contract claim on

the ground that the operative complaint failed to identify “what specific part” of

her employment contract “ha[d] been breached.” To state a breach of contract

claim under Arizona law, a plaintiff must identify the contractual obligation that

the defendant allegedly failed to fulfill. See Thomas v. Montelucia Villas, LLC,

302 P.3d 617, 621 (Ariz. 2013) (“To bring an action for the breach of the contract,

the plaintiff has the burden of proving the existence of the contract, its breach and

the resulting damages.” (citation omitted)). De Jesus’s amended complaint failed

to do so, even after the district court specifically noted this deficiency in

dismissing the original complaint. On appeal, De Jesus contends, without any

accompanying citation to the record, that Optum breached the promise in the

2 “company manual” that she would receive “fair and equal treatment.” But De

Jesus may not seek to amend the complaint on appeal, see Ecological Rights

Found. v. Pacific Gas & Elec. Co., 713 F.3d 502, 510–11 (9th Cir. 2013), and, in

any event, this new allegation still fails to allege sufficient facts to establish a

plausible claim for breach of contract, see Ashcroft v. Iqbal, 556 U.S. 662, 678–79

(2009).

B

The district court also correctly dismissed De Jesus’s claim for wrongful

termination. In her amended complaint, De Jesus alleged that her termination was

wrongful because it had been based on race and gender, but the complaint was

bereft of any factual allegations that would support a plausible inference that De

Jesus was terminated based on such grounds. See Iqbal, 556 U.S. at 678

(“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” (citation omitted)). On appeal, De Jesus

contends that the hospital at which she was assigned to work had demanded that

Optum terminate her and that Optum wrongfully acquiesced in that demand

without an adequate investigation. Again, De Jesus may not amend her complaint

on appeal, but in any event, she has failed to establish that termination of an at-will

employee based on client dissatisfaction, without more, is wrongful under Arizona

law or that Arizona law required more process than she was provided in connection

3 with her termination.

Accordingly, we affirm the district court’s dismissal of De Jesus’s claims for

breach of contract and wrongful termination. See Harper v. State, 388 P.3d 552,

554 (Ariz. Ct. App. 2016) (noting that Arizona’s Employment Protection Act “sets

out the limited circumstances in which an employee can bring a wrongful

termination action in Arizona” (citations omitted)).

II

De Jesus’s defamation claim had been rejected by an arbitrator, and De Jesus

does not dispute that, if the arbitrator’s decision on that score is confirmed, then

that claim is barred. De Jesus argues, however, that the district court erred in

confirming the arbitration award in Optum’s favor.

A

Under Arizona law, arbitration agreements are generally enforceable, but

substantive or procedural unconscionability may be raised as a defense to

enforcement. Dueñas v. Life Care Ctrs. of Am., Inc., 336 P.3d 763, 767–70 (Ariz.

Ct. App. 2014). We review de novo whether the arbitration agreement here was

invalid on grounds of unconscionability. See Coneff v. AT&T Corp., 673 F.3d

1155, 1157 (9th Cir. 2012).

Although De Jesus asserts that the arbitration agreement is “one-sided,” she

points to no specific terms of the agreement that could be said to “be overly

4 oppressive or unduly harsh to one of the parties.” Clark v. Renaissance West, LLC,

307 P.3d 77, 79 (Ariz. Ct. App. 2013). Any claim of substantive unconscionability

therefore fails.

As to procedural unconscionability, De Jesus argues that she was required to

sign the arbitration agreement as a condition of her employment, that the

agreement was never explained to her, and that “she did not receive a copy” at the

time she electronically agreed to it. The contention that De Jesus did not receive a

copy of the agreement was not raised below and is contradicted elsewhere in De

Jesus’s opening brief, where she acknowledges that the arbitration agreement was

included among a set of documents that she signed during the electronic

“onboarding process” “without completely reading and comprehending all the

documents.” But even if De Jesus did not retain or download a copy of the

agreement during that process, she concededly had an opportunity to review the

agreement before signing it. Given that De Jesus had an opportunity to review the

agreement and assented to it, the fact that her assent was a condition of her

employment does not suffice to establish procedural unconscionability. See Rizzio

v. Surpass Senior Living LLC, 459 P.3d 1201, 1206 (Ariz. Ct. App. 2020)

(rejecting a procedural unconscionability challenge to an arbitration agreement and

holding that a “standardized adhesion contract” is “not per se unconscionable”;

that Arizona law does not “require[] a drafter to explain the provisions of

5 standardized contracts”; and that “the post-hoc regret of a party to such a contract”

does not “suffice to demonstrate unconscionability”), aff’d in part and vacated in

part on other grounds, 492 P.3d 1031, 1038 (Ariz. 2021) (affirming the court of

appeals’ opinion in all respects except for five paragraphs concerning other issues).

B

De Jesus also contends that the arbitration award here should not have been

confirmed. We review de novo the district court’s decision to confirm the award,

but any factual findings underlying that decision are reviewed only for clear error.

See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947–48 (1995).

De Jesus argues that the district court should have vacated the award due to

partiality and corruption on the part of the arbitrator. See 9 U.S.C § 10(a) (stating

that an arbitration award may be vacated, inter alia, “where the award was

procured by corruption, fraud, or undue means” or where there was “evident

partiality or corruption in the arbitrators”). To the extent that this contention is

based on the fact that other members of the arbitrator’s law firm represented

UnitedHealth in other matters and that attorneys from Optum’s law firm had

appeared before the arbitrator in other matters, De Jesus concedes that the

arbitrator disclosed these facts before he was selected and that she failed to object.

Because there was no failure to disclose, De Jesus can establish “evident partiality”

only by showing “specific facts indicating actual bias toward or against a party.”

6 Lagstein v. Certain Underwriters at Lloyd’s, London, 607 F.3d 634, 645–46 (9th

Cir. 2010) (citation omitted). De Jesus argues that the arbitrator’s decisions are so

obviously wrong that they suffice to demonstrate evident partiality, but after

examining those decisions in the context of De Jesus’s submissions to the

arbitrator, we reject this contention as unsupported. For similar reasons, we reject

De Jesus’s contention that the award should be vacated under 9 U.S.C. § 10(a)(4)

on the ground that the arbitrator “exceeded [his] powers” in rendering the award.

See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th

Cir. 2003) (“We have held that arbitrators ‘exceed their powers’ in this regard not

when they merely interpret or apply the governing law incorrectly, but when the

award is ‘completely irrational,’ or exhibits a ‘manifest disregard of law.’”

(citations omitted)). Lastly, in light of these conclusions, we discern no basis for

concluding that there was “evident . . . corruption” in the arbitrator’s rendering of

the award. See Lagstein, 607 F.3d at 646–47 (citation omitted).

We therefore affirm the district court’s confirmation of the arbitration

award.1

AFFIRMED.

1 All pending motions are denied.

7