FILED
NOT FOR PUBLICATION APR 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD HEYER, No. 11-16853
Plaintiff - Appellant, D.C. No. 3:10-cv-04525-MMC
v.
MEMORANDUM*
GOVERNING BOARD OF THE MT.
DIABLO UNIFIED SCHOOL DISTRICT
and DOES, 1 Through 25,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Submitted March 15, 2013**
San Francisco, California
Before: WALLACE and IKUTA, Circuit Judges, and GARBIS, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Appellant Heyer appeals from the district court’s judgment of dismissal,
arguing that the district court erred in dismissing certain claims from his First, Second,
and Third Amended Complaints. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
We review de novo a district court’s order granting a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). See Manzarek v. St. Paul Fire & Marine
Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008). This court has harmonized recent
Supreme Court cases on pleadings, including those dealing with ADEA and Title VII
claims, and explained “two principles” relevant to analyzing the sufficiency of the
pleadings in this case:
First, to be entitled to the presumption of truth, allegations in a complaint
or counterclaim may not simply recite the elements of a cause of action,
but must contain sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself effectively.
Second, the factual allegations that are taken as true must plausibly
suggest an entitlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense of discovery and continued
litigation.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Although the district court did not
apply this precise standard, we nevertheless conclude that the district court did not err
in dismissing Heyer’s age discrimination, race discrimination, retaliation, and
harassment claims. See Serrano v. Francis, 345 F.3d 1071, 1076–77 (9th Cir. 2003).
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To begin, although Heyer was not required to plead each element of the prima
facie showing for an age discrimination claim, see Sheppard v. David Evans & Assoc.,
694 F.3d 1045, 1050 n.2 (9th Cir. 2012), Heyer failed to allege that he was “‘either
replaced by [a] substantially younger [employee] with equal or inferior qualifications
or discharged under circumstances otherwise giving rise to an inference of age
discrimination,’” id. at 1050. While Heyer’s First Amended Complaint (FAC) alleges
that Heyer was released from his position as vice-principal of Northgate High School
and reassigned as a classroom teacher, the FAC does not state that Heyer’s
replacement was substantially younger or that a substantially younger individual
otherwise received more favorable treatment. Heyer’s mere conclusory statements that
he was discriminated against in violation of the ADEA are not sufficient to meet his
pleading burden. See Starr, 652 F.3d at 1216.
Next, Heyer failed to plead a plausible claim for relief as to his race
discrimination claim. Apart from conclusory statements, Heyer makes no factual
assertion in his FAC that he was replaced by a person of another race or that a person
of another race was otherwise treated differently than he was. See Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). We therefore conclude that
Heyer failed to“plausibly suggest an entitlement to relief” for his race discrimination
claim. Starr, 652 F.3d at 1216.
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Likewise, Heyer failed to plead sufficiently his fifth claim for harassment.
While Heyer lists a number of vague unwelcome practices in his complaint, Heyer
fails to support this list with any facts that would permit an inference that these
practices were based on his membership in a protected group. See McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1113–15 (9th Cir. 2004). Instead, Heyer’s complaint
appears to contain merely the kind of “the-defendant-unlawfully-harmed-me
accusation[s]” that are insufficient to meet his pleading burden. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
We also conclude that when viewed in light of the prima facie showing Heyer
is required to make, see Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,
1196–97 (9th Cir. 2003), Heyer’s Second Amended Complaint (SAC) fails to plead
adequately his retaliation claim. Although Heyer alleges that he protested a negative
evaluation on April 20, 2009, and then suffered an adverse employment action on
January 29, 2010, such a delay between the protected activity and the adverse action
is insufficient to give rise to an inference of causation. See Cornwell, 439 F.3d at
1036; Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003).
Heyer’s Third Amended Complaint (TAC) also fails to allege sufficiently the
causal link between protected activity and adverse employment action. While Heyer
alleges new facts as to his employment, only two of the new factual allegations relate
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to events between the April 20, 2009 protest and the late-January adverse employment
action. While these two events occurred closer in time to the April 20, 2009 protected
activity, we conclude that the district court correctly determined that Heyer had not
pleaded sufficient facts to give rise to an inference that the April 22, 2009 meeting
with an assistant superintendent in which he requested an investigation and transfer
and the October 2009 instruction Heyer received to prepare “Initial Evaluation” goals
were not adverse employment actions. See Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006). Heyer’s TAC, therefore, failed to allege a shorter time period
between protected activity and adverse employment action than was alleged in the
SAC. We thus conclude that Heyer’s TAC also failed to plead adequately a plausible
entitlement to relief for retaliation. See Starr, 652 F.3d at 1216.
Finally, because allowing further amendment would have been futile, the
district court did not abuse its discretion in denying leave to amend. See Lopez v.
Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc).
AFFIRMED.
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