Maccord Nguyen v. ADAMS & ASSOCIATES, INC., a Nevada corporation

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MACCORD NGUYEN,

Plaintiff-Appellant,

v.

ADAMS & ASSOCIATES, INC., a Nevada
corporation,

Defendant-Appellee.

No. 18-16751

D.C. No.
2:16-cv-00292-TLN-KJN

MEMORANDUM
*

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 Maccord Nguyen (“Nguyen”) appeals the district court’s

*
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.
FILED

AUG 21 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Order dismissing his claims under California’s Fair Employment and Housing Act
(“FEHA”), as well as his state law tort claim for intentional infliction of emotional
distress (“IIED”). 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 Nguyen’s claims. Rather, the district court properly applied binding
precedent to determine whether Nguyen’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 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

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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

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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.,

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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.”).

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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.

Nguyen v. Adams & Associates, Inc., Case No. 18-16751
Rawlinson, Circuit Judge, concurring
I concur in the result.
FILED
AUG 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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