NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY SILVERIA, No. 20-17457

Plaintiff-Appellant, D.C. No. 3:19-cv-06600-EMC

v.

MEMORANDUM*

DENIS MCDONOUGH, Secretary of the Department of Veterans Affairs,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Submitted January 14, 2022** Pasadena, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District Judge.

Silveria filed an action under the Rehabilitation Act of 1973, 29 U.S.C.

* 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 Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. § 701 et seq., against the U.S. Department of Veterans Affairs (“VA”) alleging that

he experienced a disability-based hostile work environment while working at the

VA. The VA moved to dismiss the Complaint, arguing that Silveria failed to state

a hostile work environment claim because he did not adequately allege “verbal or

physical conduct of a harassing nature.” The district court granted the VA’s

motion, and we affirm.

“An employer is liable . . . for conduct giving rise to a hostile environment

where the employee proves (1) that he was subjected to verbal or physical conduct

of a harassing nature, (2) that this conduct was unwelcome, and (3) that the

conduct was sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Arizona ex rel. Horne

v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (quoting Kortan v. Cal.

Youth Auth., 217 F.3d 1104, 1109-10 (9th Cir. 2000)).1 The first requirement,

“conduct of a harassing nature,” typically involves “physical touching” or

“repeated comments and gestures” based on a protected characteristic. Id. at 1206-

07; see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (describing a

1 We assume without deciding that such a claim can be brought under the Rehabilitation Act when the hostile work environment is based on a disability. Although Silveria questions whether certain elements of a Title VII hostile work environment claim “make[] sense for [hostile work environment] disability discrimination claims,” he provides no reason to deviate from Title VII’s standards.

2 hostile work environment as a “workplace . . . permeated with ‘discriminatory

intimidation, ridicule, and insult’” (quoting Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 65 (1986))).

The factual allegations in the Complaint do not create an inference that

Silveria experienced “conduct of a harassing nature.” Silveria alleges that his

managers repeatedly disciplined him while he was on medical leave, including by

ordering him to return to work, charging him with being absent without official

leave, and eventually suspending and removing him from his job. According to the

Complaint, Silveria’s managers continually asserted that he failed to provide

proper medical documentation and otherwise to comply with the VA’s leave

request procedures when they disciplined him. These allegations mainly describe a

series of adverse employment actions—as would more typically be asserted in

support of a disparate treatment claim for discriminatory discipline or firing—

without even a suggestion that the actions involved any sort of “intimidation,

ridicule, and insult.” Meritor Sav. Bank, 477 U.S. at 65. Indeed, Silveria had

already challenged the same alleged employment conduct in a previous action

asserting a disparate treatment claim. That action was dismissed with prejudice,

and Silveria did not appeal. Silveria v. Wilkie, No. 18-cv-07327, 2020 WL

820377, at *10 (N.D. Cal. Feb. 19, 2020). Although a plaintiff might be able to

state a hostile work environment claim in part by alleging differential treatment,

3 see, e.g., McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1108-18 (9th Cir. 2004)

(considering evidence of a discriminatory denial of overtime pay along with racial

insults, taunts, and graffiti in evaluating a hostile work environmental claim),

Silveria has not alleged a hostile work environment here.

The district court did not err in denying Silveria leave to file a fourth

amended complaint. As the district court observed, Silveria was provided

numerous opportunities to amend his various pleadings yet failed to state a claim.

See William O. Gilley Enters., Inc. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th

Cir. 2009). Silveria “points to no additional facts that . . . [would] cure the[]

deficienc[y]” that warrants dismissal. Metzler Inv. GMBH v. Corinthian Colls.,

Inc., 540 F.3d 1049, 1072 (9th Cir. 2008). Accordingly, “the complaint could not

be saved by any amendment.” United States v. Corinthian Colls., 655 F.3d 984,

995 (9th Cir. 2011) (quoting Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys.

of Higher Educ., 616 F.3d 963, 972 (9th Cir. 2010)).

AFFIRMED.

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