Melody Kemsley v. Megan Brennan

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 24 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MELODY KEMSLEY, an individual,                  No.    19-55856

                Plaintiff-Appellant,            D.C. No.

MEGAN J. BRENNAN, Postmaster General            MEMORANDUM*
of the United States Postal Service,


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                    Argued and Submitted November 19, 2020
                              Pasadena, California

Before: PAEZ and VANDYKE, Circuit Judges, and IMMERGUT,** District

      Plaintiff Melody Kemsley appeals the district court’s order granting

Defendant’s motion to dismiss for failure to state a claim under Title VII. We review

the grant or denial of a motion to dismiss de novo. Los Angeles Lakers, Inc. v. Fed.

             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
             The Honorable Karin J. Immergut, United States District Judge for the
District of Oregon, sitting by designation.
Ins. Co., 

869 F.3d 795

, 800 (9th Cir. 2017). We review the district court’s dismissal

with prejudice for abuse of discretion. Salameh v. Tarsadia Hotel, 

726 F.3d 1124


1129 (9th Cir. 2013).

      The availability of protection under Title VII’s “participation clause” requires

“the underlying discrimination … be reasonably perceived as discrimination

prohibited by Title VII.” Learned v. City of Bellevue, 

860 F.2d 928

, 932 (9th Cir.

1988). The district court properly concluded that Kemsley’s EEOC complaint’s

claim that she was fired for identifying leave-use violations did not qualify as

“protected activity” under Title VII’s broad categories of race, color, religion, sex,

or national origin. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).

      Kemsley now maintains that her complaint noted that her EEOC action was

not entirely predicated on the leave-use violations, but rather leave-use violations

“among other things.” Acknowledging this aspect of her complaint “admittedly

lack[s] specificity,” Kemsley’s brief on appeal still does not disclose exactly what

those “other things” are, and insists Kemsley should have been given leave to amend.

Because the record before both this court and the district court is completely devoid

of any specific claimed protected activity, the district court did not abuse its

discretion in dismissing with prejudice. See Kendall v. Visa U.S.A., Inc., 

518 F.3d 1042

, 1052 (9th Cir. 2008) (“Appellants fail to state what additional facts they would

plead if given leave to amend .... Accordingly, amendment would be futile.”). “A

plaintiff may not in substance say ‘trust me,’ and thereby gain a license for further

amendment when [provided] prior opportunity” to explain those facts. 

Salameh, 726 F.3d at 1133

(finding no abuse of discretion to deny leave to amend where plaintiff

failed to identify facts that could cure deficiencies). The district court properly

dismissed Kemsley’s complaint with prejudice.



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