NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AZARIA TING,

Plaintiff

- Appellant,

v. ADAMS & ASSOCIATES, INC., a Nevada corporation, Defendant

- Appellee. No. 18

- 16711
D.C. No. 2:16

- cv - 01309

- 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 Azaria Tin g (“Ting”) appeals the district court’s O rder

* 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 APPEALS2 18

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dismissing her claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) 1
and the Americans with Disabilitie s Act (“ADA”)

. 2 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 1 206 , 1211 ( 9th Cir. 20 18 )

. 1. The district court did not apply a heightened pleading standard to evaluate Ting’s claims. Rather, the district court properly applied binding precedent to determine whether Ting’s claims were facially plausible, and proper ly determined that they were not. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (“Threadbare recitals of the ele ments 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 Ting’s race and color discrimination claims. To state a claim for dis parate treatment under Title VII , a plaintiff must plausibly allege that: (1) she was a member of a protected clas s ; (2) she was qu alified for her position ; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably, or other circumstances indicate discriminatory intent

.

1 42 U.S.C. § 2000(e) et seq. 2 42 U.S.C. § 12112.3 18

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Peterson v. Hewlett

- Packard Co. , 358 F.3d 599, 603 ( 9th Cir. 2004) ; see 42
U.S.C. § 2000e

- 2 . Ting’s claim falters with respect to the fourth requirement

. S he has failed to allege facts supporting a reasonable inference that Defendant

Appellee Adams & Associates (“Adams”) chose not to rehire her on account of her race or color, or that Adams treated persons of different races or colors than Ting 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 Ting’s disabilit y discrimination claim because she failed to plausibly allege that Adams chose not to rehire her on account of her disability

. To state a claim for disability discrimination under the ADA, a plaintiff must plausibly allege that she: (1) is a disabled pers on within the meaning of the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job; and (3) suffered an adverse employment action because of her disability. Bradley v. Harcourt, Brace & Co. , 104 F.3 d 267, 271 ( 9th Cir. 1996 ) ; see 42 U.S.C. § 12112. Ting alleged that Adams used “ prior excused absences as a pretense to avoid rehiring her, ” 3 but failed to allege any underlying fact s supporting such an inference. Ting also

3 Ting alleged that during her interview, she “disclosed that she had taken time off work in the past due to a back injury she sustained in a car accident,” “to observe Ramadan,” and “to mourn a death in the family.”4 18

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alleged that employees with equal or less experience were hired for similar Resident Advisor position s , but failed to allege that those hired did not have disabilities. On the record before us, there is no requisi te causal link between Ting’ s alleged disability and Adams’ adverse employment action.
4. The district court properly dismissed Ting’s retaliation claim because she failed to plausibly allege that she engaged in any statutorily cognizable protected activity under Title VII or the ADA

. For example, the ADA’s anti

retaliation provision prohibits retaliation against a person who has: (1) opposed any
act or practice forbidden under the ADA ; (2) filed a charge ; (3) testified; or (4) assisted in a ny investigation , proceeding , or hearing under the ADA

. See 42
U.S.C. § 12203(a); see also id. § 2000e

- 3(a) ( listing protected activit ies under Title VII anti

- retaliation statute). Ting only alleged that she is an African

- American woman with a medical condition, and tha t she is a union member; she did not cite any authority indicating that either “activity” is protected under the ADA or Title
VII

. Indeed, she cannot because there is no such authority. Ting a lso argues that the district court failed to consider that she, both personally and through her union representative, complained that Adams , in an attempt to discriminate against minority employees, was not adhering to the collective bargaining agreement. B u t based on the allegations in her Amended Complaint ( “ FAC ” ) , any such

“ complaints ” occurred only after Adams informed Ting that she would not be5 18

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rehired as a Resident Advisor

. Such a timeline does not support a retaliation claim because an individual cann ot be subject to retaliation for engaging in protected conduct that takes place after the adverse employment act ion. S ee , e.g. , Pardi v. Kaiser Found. Hosps. , 389 F.3d 840, 849 ( 9th Cir. 2004) ( stating that successful ADA retaliation claim requires causal link between employee’s protected activity and employer’s adverse employment action).
5. The district court properly dismissed Ting’s failure

- to

- hire claim because she failed to plausibly allege that Adams’ adverse employment act ion was motivated by discrim inatory intent. See 42 U.S.C. § 2000e

- 2(a) (1) ; Dominguez

Curry v. Nev. Transp. Dep’t , 424 F.3d 1027, 1037 (9th Cir. 2005) (stating elements of failure

- to

- hire claim under Title VII). Specifically, Ting failed to allege that Adams filled available Resident Advisor positions with individuals who were not members of the same protected class as her, or that Adams continued to consider comparably qualified applicants after reject ing her. Cf. Dominguez

- Curry , 424 F.3d at 103 8 (highlighting employer’s sexist comments as indicative of animus toward class to which plaintiff belonged and therefore tied to position sought by plaintiff )

. Ting only alleged that Adams failed to rehire her on acco unt of her “protected characteristics, including her race and medical condition , ” and “disparately appl[ied] company practices, procedures, and policies to justify failing to hire other members of protected groups

. ” S uch conclusory allegations do not6 18

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suff ice

. 6. The district court properly dismissed Ting’s failure

- to

- accommodate claim because she failed to plausibly allege facts demonstrating that Adams had notice of her disability

. See 42 U.S.C § 12 112

. Under the ADA, an employer is only required to make “reasonable accommodation to the known physical or mental limitations of an otherwise qualified” disabled applicant or employee

. 42
U.S.C. § 12112(b)(5)(A) (emphasis added); see , e.g. , U.S. E.E.O.C. v. UPS Supply Chain Sols. , 620 F.3d 1103, 1110 ( 9th Cir. 2010) (stating the same). Merely

a lleging that Adams was aware of and failed to accommodate her “medical condition”

—

without offering any underlying factual allegations describing her physical limitations and Adams’ notice thereof

— is not enough

. 7. The district court properly dismissed Ting’s claim for failure to
engage in the interactive process because she failed to plausibly allege that she requested an accommodation or that Adams other wise knew that she required one.
See 42 U.S.C. § 12112 ; Zivkovic v. S. Cal. Edison Co. , 302 F.3d 1080, 1089 (9th Cir. 2002) ( stating that employer ’s notice of employee’s need for accommodation triggers ADA duty to engage in interactive process ).
8. Finally, the district court did not abuse its discretion in declining
to sua sponte grant Ting a second opportunity to amend her Complaint

. “[A] district court should grant leave to amend even if no request to amend the7 18

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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 Ting’s FAC could not be so
cured. In its O rder granting Adams’ f irst M otion to D ismiss, the district court provided detailed analysis of the defi ciencies in Ting’s initial C omplaint

. Because she failed to remedy those deficiencies in her FAC, we agree with the
district court that it would be futile to now permit Ting a second opportunity to
amend. S e e , 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.Ting v

. A dam s & A ssoc iate

s, Inc . , Case No. 18-16711 Raw linson, Cir c uit Judge , c onc ur r ing
I c onc ur in the re sult. 

# FIL ED

AUG 21 2020
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

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