text:                            NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                       AUG 21 2020
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT
  
  GLORIA FRANKLIN,                                No.    18-16748
  
                  Plaintiff-Appellant,            D.C. No.
                                                  2:16-cv-00303-TLN-KJN
   v.
  
  ADAMS & ASSOCIATES, INC., a Nevada              MEMORANDUM*
  corporation,
  
                  Defendant-Appellee.
  
                     Appeal from the United States District Court
                        for the Eastern District of California
                      Troy L. Nunley, District Judge, Presiding
  
                       Argued and Submitted February 12, 2020
                              San Francisco, California
  
  Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,**
  District Judge.
  Concurrence by Judge RAWLINSON
  
        Gloria Franklin appeals the district court’s order dismissing her action
  
  brought under the Fair Employment and Housing Act (FEHA). We review de
  
  
  
        *
               This disposition is not appropriate for publication and is not precedent
  except as provided by Ninth Circuit Rule 36-3.
        **
               The Honorable Susan R. Bolton, United States District Judge for the
  District of Arizona, sitting by designation.
  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 Franklin’s claims. Rather, the district court applied binding precedent to
  
  determine whether Franklin’s claims were facially plausible. 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 Franklin’s claims for age,
  
  disability, and race discrimination. 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, Inc., 444 P.3d 706, 713 (Cal. 2019). Franklin has failed to allege
  
  facts supporting a reasonable inference that Defendant-Appellee Adams &
  
  Associates (“Adams”) declined to rehire her on account of her age, disability, or
  
  race, or that Adams treated other similarly situated persons more favorably. Mere
  
  
                                            2
  recitation of an element—for example, membership in a protected class—does not
  
  suffice without some factual allegations suggesting an employer’s discriminatory
  
  intent. See Iqbal, 556 U.S. at 678
  
        3. The district court did not err in dismissing Franklin’s failure-to-hire claim
  
  because the complaint lacked sufficient allegations to state a plausible claim that
  
  Adams had a discriminatory motive in refusing to rehire her for the position
  
  sought. See Cal. Gov’t Code § 23940(a); Abed v. W. Dental Servs., Inc., 233 Cal.
  
  Rptr. 3d 242, 248 (Cal. Ct. App. 2018) (explaining the elements of a failure-to-hire
  
  claim). Specifically, Franklin failed to allege that Adams filled the available
  
  positions with individuals who were not members of the same protected class as
  
  her, or that Adams continued to consider comparably qualified applicants after
  
  rejecting her. See Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 61 n.4 (Cal.
  
  Ct. App. 2000). Franklin alleged only that Adams failed to rehire her on account
  
  of her “protected characteristics,” including her age, disability, and race, and the
  
  “disparate application of company practices, procedures, and policies to justify the
  
  failure to hire other members of protected groups.” Such conclusory allegations do
  
  not suffice.
  
        4. The district court properly dismissed the FEHA retaliation claim, as
  
  Franklin did not allege a statutorily cognizable protected activity. See Cal. Gov’t
  
  Code § 12940(h) (prohibiting retaliation against a person who opposed a forbidden
  
  
                                             3
  practice, filed a complaint, testified, or assisted in a proceeding under the FEHA);
  
  Moore v. Regents of Univ. of Cal., 206 Cal. Rptr. 3d 841, 864 (Cal. Ct. App. 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., 3116 P.3d
  
  1123, 1133 (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”).
  
        5.     The district court did not err in dismissing Franklin’s failure to
  
  accommodate claim because Franklin failed to plausibly allege that Adams was
  
  aware of the need to accommodate. See Cal. Gov’t Code § 12940(m)(1); Avila v.
  
  Cont’l Airlines, Inc., 82 Cal. Rptr. 3d 440, 453 (Cal. Ct. App. 2008) (explaining
  
  that an employer need only accommodate a known disability); Alamillo v. BNSF
  
  Railway Company, 869 F.3d 919, 922 (9th Cir. 2017) (concluding that no plausible
  
  accommodation claim exists if the employer fails to make a requested for
  
  accommodation and there is no evidence that disability was the motivating fact in
  
  the employer’s decision).
  
        6.     The district court correctly dismissed Franklin’s claim for failure to
  
  engage in the interactive process, as the complaint contained no plausible
  
  allegations that Adams was aware that Franklin had a medical condition that
  
  required accommodation or that Franklin requested an accommodation. See Cal.
  
  
                                            4
  Gov’t. Code § 12940(n).
  
        7.     Absent an actionable claim of discrimination, Franklin cannot
  
  maintain a claim for failure to prevent discrimination. See Caldera v. Dep’t of
  
  Corr. & Rehab., 235 Cal. Rptr. 3d 262, 273 (Cal. Ct. App. 2018).
  
        8.     The district court properly dismissed the claim for intentional
  
  infliction of emotional distress, as Franklin failed to plausibly allege that Adams
  
  engaged in “extreme and outrageous conduct.” Sarver v. Chartier, 813 F.3d 891,
  
  907 (9th Cir. 2016). Franklin has alleged no conduct on the part of Adams other
  
  than acts 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) (“A simple pleading of personnel management activity is insufficient to
  
  support a claim of intentional infliction of emotional distress, even if improper
  
  motivation is alleged.”).
  
        9.     The district court did not err in dismissing Franklin’s claim for failure
  
  to provide copies of personnel files in violation of California Labor Code § 1198.5.
  
  That provision applies only to “current and former employee[s].” Cal. Lab. Code
  
  § 1198.5. Franklin failed to allege that she was employed by Adams. Because the
  
  California Labor Code pertains to only current and former employees,
  
  Franklin failed to plausibly allege that Adams was obligated to provide copies of
  
  
                                            5
  her personnel files.
  
        10.    Finally, the district court did not abuse its discretion in declining to
  
  sua sponte grant Franklin a second opportunity to amend her 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. 1990) (citations omitted). Here, the district court
  
  correctly determined that Franklin’s Amended Complaint could not be so cured. In
  
  its Order granting Adams’ first Motion to Dismiss, the district court provided
  
  detailed analysis of the deficiencies in Franklin’s initial Complaint. Because she
  
  failed to remedy those deficiencies in her Amended Complaint, we agree with the
  
  district court that it would be futile to now permit Franklin a second opportunity to
  
  amend. See, e.g., Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112,
  
  1116 (9th Cir. 2014) (“[A] district court’s discretion in denying amendment is
  
  particularly broad when it has previously given leave to amend.”) (citation and
  
  quotation omitted).
  
        AFFIRMED.
  
  
  
  
                                             6
                                                               FILED
  Franklin v. Adams & Associates, Inc., Case No. 18-16748
                                                               AUG 21 2020
  Rawlinson, Circuit Judge, concurring
                                                            MOLLY C. DWYER, CLERK
                                                             U.S. COURT OF APPEALS
       I concur in the result.
  
  
  
  
                                        1
  