Lokossou v. ServiceSource International Inc.

Filing 48

Order by Hon. James Donato granting 32 Motion to Dismiss. Amended Pleadings due by 5/3/2017. (jdlc2S, COURT STAFF) (Filed on 3/30/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MENSAH LOKOSSOU, Plaintiff, 8 9 ORDER RE MOTION TO DISMISS v. Re: Dkt. No. 32 10 SERVICESOURCE INTERNATIONAL INC., 11 United States District Court Northern District of California Case No. 15-cv-04892-JD Defendant. 12 13 This is an employment discrimination case brought by pro se plaintiff Mensah Lokossou 14 against his former employer, Servicesource International Inc. Lokossou asserts two claims for 15 relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e: (1) discrimination based 16 on national origin, and (2) “harassment, hostile work environment and retaliation.” Dkt. No. 21. 17 Servicesource has moved to dismiss plaintiff’s amended complaint, which is the operative 18 complaint. Dkt. No. 32. The Court grants the motion with leave to amend. 19 As a preliminary matter, the Court deems withdrawn defendant’s argument that plaintiff’s 20 complaint was filed a day too late and the Court is consequently without jurisdiction over it. Dkt. 21 No. 32 at 7. Plaintiff has explained that this was because the EEOC letter was sent to the wrong 22 address, and he has attached some relevant proof. Dkt. No. 37 at 7. The argument is not raised 23 again in defendant’s reply, see Dkt. No. 43, and the Court consequently deems it abandoned, 24 although the Court would have denied it in any event. Cf. Chapman v. San Francisco Newspaper 25 Agency, No. C 01-02305 CRB, 2002 WL 31119944 (N.D. Cal. Sept. 20, 2002). 26 Turning to the substance of plaintiff’s claims, in an employment discrimination case, the 27 plaintiff need not plead a prima facie case to survive a Rule 12(b)(6) motion to dismiss. See 28 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The plaintiff must, however, nevertheless 1 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual 3 content allows the court to draw the reasonable inference that the defendant is liable for the 4 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly at 556). 5 Rule 8(a)(2) of the Federal Rules of Civil Procedure also requires that the complaint must contain 6 “a short and plain statement of the claim showing that the pleader is entitled to relief.” 7 In evaluating a motion to dismiss, the Court must assume that the plaintiff’s allegations are 8 true and must draw all reasonable inferences in plaintiff’s favor. Usher v. City of Los Angeles, 9 828 F.2d 556, 561 (9th Cir. 1987). But even then, plaintiff fails to cross the plausibility threshold, at least on this attempt. Title VII prohibits employers from discriminating against individuals 11 United States District Court Northern District of California 10 “with respect to his compensation, terms, conditions, or privileges of employment, because of 12 such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) 13 (emphasis added). While plaintiff makes some conclusory allegations about undesired conduct 14 toward him on the basis of his national origin or race, his actual, factual allegations consistently 15 fail to draw any link between the conduct complained of on the one hand and his national origin or 16 race on the other. See, e.g., Dkt. No. 21 ¶ 32 (“The plaintiff worked overtime almost on a daily 17 basis to achieve his sales quotas. However, he was being denied [] scheduled vacation time. This 18 benefit was granted to his other colleagues because a replacement was provided to take over their 19 duties during their absence.”); ¶ 37 (“By supporting the aggressions specifically targeted at the 20 plaintiff, the defendant failed to promote an atmosphere favorable to inter-ethnic collaboration and 21 respect.”). While plaintiff includes allegations about his subjective belief that his advancement 22 within the company was limited “because of his national origin, easily discernable by his accent,” 23 Dkt. No. 21 ¶ 33, that kind of allegation is insufficient. Plaintiff must come forward with non- 24 conclusory allegations of fact, not merely statements of his subjective beliefs, tying discriminatory 25 acts by his employer with plaintiff’s national origin or race. 26 The Court consequently dismisses the complaint under Rule 12(b)(6). The Court must 27 “grant leave to amend even if no request to amend the pleading was made, unless it determines 28 that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 2 1 F.3d 1122, 1130 (9th Cir. 2000) (internal quotation marks and citation omitted). That is not 2 something the Court can say at this juncture, and so granting plaintiff leave to amend is more than 3 appropriate. Plaintiff will have until May 3, 2017, to file his amended complaint. 4 Plaintiff, who is not represented by counsel, is encouraged to consult with the Federal Pro Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal courthouses 6 for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th 7 floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in 8 Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be 9 made by calling (415) 782-8982 or signing up in the appointment book located outside either 10 office. Lawyers at the Legal Help Center can provide basic assistance to parties representing 11 United States District Court Northern District of California 5 themselves but cannot provide legal representation. 12 13 IT IS SO ORDERED. Dated: March 30, 2017 14 15 JAMES DONATO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?