FILED

NOT FOR PUBLICATION

AUG 21 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GENESTHER TAYLOR, No. 18-16810

Plaintiff-Appellant, D.C. No. 2:16-cv-00311-TLN-KJN v.

ADAMS & ASSOCIATES, INC.,

MEMORANDUM*

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.

* 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. Genesther Taylor (Taylor) appeals the district court’s order dismissing her

action 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 Taylor’s claims. Rather, the district court applied binding precedent to

determine whether Taylor’s claims were facially plausible. See Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009) (stating that the facts must “permit the court to infer

more than the mere possibility of misconduct” to survive a motion to dismiss); see

also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that the

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

face.”)

2. The district court properly dismissed Taylor’s discrimination claims

based on race and age because Taylor failed to sufficiently allege facts to state a

plausible claim. 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,

2 Inc., 7 Cal. 5th 871, 885 (2019) (citation and footnote reference omitted). Taylor’s

conclusory allegations of discrimination stemming from hostility and distrust in the

workplace do not suffice. See Iqbal, 556 U.S. at 678.

3. The district court properly dismissed Taylor’s disability claim because

the amended complaint lacked plausible allegations that Defendant Adams &

Associates, Inc. (Adams) had knowledge of her disabilities. See Avila v. Cont’l

Airlines, Inc., 165 Cal. App. 4th 1237, 1248 (2008) (stating that the plaintiff must

demonstrate that the employer knew of the disability when taking the adverse

employment action).

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

claim because the amended complaint lacked sufficient allegations to state a

plausible claim that Adams had a discriminatory motive in refusing to hire her for

the position sought. See Abed v. W. Dental Servs., Inc., 23 Cal. App. 5th 726, 736

(2018) (explaining the elements of a failure-to-hire claim); see also Cal. Gov’t

Code § 12940(a). Specifically, Taylor failed to allege that the individual hired

instead of her was not a member of a protected group. See Jensen v. Wells Fargo

Bank, 85 Cal. App. 4th 245, 255 n.4 (2000).

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

Taylor did not allege a statutorily cognizable protected activity. See Cal. Gov’t

3 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);

see also Moore v. Regents of Univ. of California, 248 Cal. App. 4th 216, 244

(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., 36 Cal.

4th 1028, 1046 (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”).

6. Absent an actionable claim of discrimination, Taylor cannot maintain

a claim for failure to prevent discrimination. See Caldera v. Dep’t of Corr. &

Rehab., 25 Cal. App. 5th 31, 43-44 (2018).

7. The district court did not err in dismissing Taylor’s failure to

accommodate claim because Taylor failed to plausibly allege that Adams was

aware of the need to accommodate. See Cal. Gov’t Code § 12940(m)(1); see also

Alamillo v. BNSF Ry. Co., 869 F.3d 916, 919, 922 (9th Cir. 2017) (concluding that

no plausible accommodation claim exists if the employer made the requested

accommodation); Avila, 165 Cal. App. 4th at 1252 (explaining that an employer

need only accommodate a known disability).

4 8. The district court correctly dismissed Taylor’s claim for failure to

engage in the interactive process, as the amended complaint contained no plausible

allegations that Adams was aware of any disability or medical condition, or that

Taylor requested an accommodation. See Alamillo, 869 F.3d at 922 (clarifying that

an employer must engage in the interactive process in response to a request for

reasonable accommodation from an employee with a known disability); see also

Cal. Gov’t. Code § 12940(n).

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

sua sponte grant leave to amend, as Taylor failed to remedy the deficiencies in her

amended complaint after the district court previously granted leave to amend. See

Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir.

2014) (explaining that “the district court’s discretion in denying amendment is

particularly broad when it has previously given leave to amend”).

AFFIRMED.

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