facts to state a claim to relief that is plausible on its face”).

2. The district court properly dismissed Nguyen’s claims for age,

disability, race, color, and national origin discrimination. To state a discrimination

claim under 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) “other circumstances suggest a discriminatory

motive.” Wilson v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019); see

Cal. Gov’t Code § 12940(a). Nguyen has failed to allege facts supporting a

2 18-16751 reasonable inference that Defendant-Appellee Adams & Associates (“Adams”)

chose not to rehire him on account of his age, disability, race, color, or national

origin, or that Adams treated other similarly situated persons 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 Nguyen’s failure-to-hire claim

because he failed to plausibly allege 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, 248–49 (Cal Ct. App. 2018)

(explaining elements of failure-to-hire claim). Specifically, Nguyen failed to allege

that Adams filled available Resident Advisor 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, 85 Cal. App. 4th 245, 255 n.4 (2000). Nguyen only alleged that

Adams failed to rehire him on account of his “protected characteristics, including

his age, disability, and race,” and “disparately appl[ied] company practices,

procedures, and policies to justify the failure to hire members of protected groups,

including [Nguyen].” Such conclusory allegations, however, do not suffice.

4. The district court properly dismissed Nguyen’s retaliation claim

3 18-16751 because he failed to plausibly allege that he engaged in any statutorily cognizable

protected activity. FEHA’s anti-retaliation provision prohibits retaliation against a

person who has: (1) opposed any practices forbidden under FEHA; (2) filed a

complaint; (3) testified; or (4) assisted in a FEHA proceeding. Cal. Gov’t Code

§ 12940(h); see Moore v. Regents of Univ. of Cal., 206 Cal. Rptr. 3d 841, 864 (Cal.

Ct. App. 2016) (listing elements of FEHA retaliation claim). Nguyen only alleged

that Adams retaliated against him “by refusing to hire him on account of such

protected activities as being a dark-skinned Asian American of Vietnamese descent

over the age of 40 diagnosed with a medical condition.” Nguyen did not cite any

authority indicating that these “activities” are protected under FEHA; indeed, he

cannot because there is no such authority.

5. The district court properly dismissed Nguyen’s failure-to-prevent-

discrimination claim because he failed to allege sufficient facts stating underlying

claims for age, disability, race, color, and national origin discrimination. FEHA

does not provide private litigants with a stand-alone 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 Nguyen’s failure-to-

accommodate claim because he failed to plausibly allege that Adams had notice of

his disability. See Cal. Gov’t Code § 12940(m)(1); Avila v. Cont’l Airlines, Inc.,

4 18-16751 82 Cal. Rptr. 3d 440, 453 (Cal. Ct. App. 2008) (explaining that an employer need

only accommodate a known disability). Merely alleging that Adams was aware of

and failed to accommodate his “medical condition involving [d]iabetes”—without

any underlying factual allegations describing his physical limitations or Adams’

notice thereof—is not enough. See Avila, 82 Cal. Rptr. 3d at 453.

7. The district court properly dismissed Nguyen’s claim for failure to

engage in the interactive process because he failed to plausibly allege that he

requested an accommodation or that Adams otherwise knew that he required one.

See Cal. Gov’t Code § 12940(n); Alamillo v. BNSF Ry. Co., 869 F.3d 916, 922 (9th

Cir. 2017) (explaining that employee’s request for reasonable accommodation is a

prerequisite for claim under § 12940(n)).

8. The district court properly dismissed Nguyen’s IIED claim because he

failed to plausibly allege that Adams engaged in “extreme or outrageous conduct.”

Sarver v. Chartier, 813 F.3d 891, 907 (9th Cir. 2016) (quoting Hughes v. Pair, 209

P.3d 963, 976 (Cal. 2009)). Nguyen has alleged no other conduct on the part of

Adams than a simple act 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); id. (“A simple pleading of personnel management activity is

insufficient to support a claim of [IIED], even if improper motivation is alleged.”).

5 18-16751 9. Finally, the district court did not abuse its discretion in declining to

sua sponte grant Nguyen 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. 2000) (citations omitted). Here, the district court

correctly determined that Nguyen’s Amended Complaint (“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 Nguyen’s initial Complaint.

Because he failed to remedy those deficiencies in his FAC, we agree with the

district court that it would be futile to now permit Nguyen 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.

6 18-16751

FILED

Nguyen v. Adams & Associates, Inc., Case No. 18-16751

AUG 21 2020

Rawlinson, Circuit Judge, concurring

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.

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