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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MENSAH LOKOSSOU,
Plaintiff,

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ORDER RE MOTION TO DISMISS

v.

Re: Dkt. No. 32

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SERVICESOURCE INTERNATIONAL
INC.,

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United States District Court
Northern District of California

Case No. 15-cv-04892-JD

Defendant.

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This is an employment discrimination case brought by pro se plaintiff Mensah Lokossou

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against his former employer, Servicesource International Inc. Lokossou asserts two claims for

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relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e: (1) discrimination based

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on national origin, and (2) “harassment, hostile work environment and retaliation.” Dkt. No. 21.

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Servicesource has moved to dismiss plaintiff’s amended complaint, which is the operative

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complaint. Dkt. No. 32. The Court grants the motion with leave to amend.

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As a preliminary matter, the Court deems withdrawn defendant’s argument that plaintiff’s

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complaint was filed a day too late and the Court is consequently without jurisdiction over it. Dkt.

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No. 32 at 7. Plaintiff has explained that this was because the EEOC letter was sent to the wrong

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address, and he has attached some relevant proof. Dkt. No. 37 at 7. The argument is not raised

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again in defendant’s reply, see Dkt. No. 43, and the Court consequently deems it abandoned,

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although the Court would have denied it in any event. Cf. Chapman v. San Francisco Newspaper

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Agency, No. C 01-02305 CRB, 2002 WL 31119944 (N.D. Cal. Sept. 20, 2002).

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Turning to the substance of plaintiff’s claims, in an employment discrimination case, the

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plaintiff need not plead a prima facie case to survive a Rule 12(b)(6) motion to dismiss. See

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Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The plaintiff must, however, nevertheless

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allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual

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content allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly at 556).

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Rule 8(a)(2) of the Federal Rules of Civil Procedure also requires that the complaint must contain

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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In evaluating a motion to dismiss, the Court must assume that the plaintiff’s allegations are

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true and must draw all reasonable inferences in plaintiff’s favor. Usher v. City of Los Angeles,

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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

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United States District Court
Northern District of California

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“with respect to his compensation, terms, conditions, or privileges of employment, because of

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such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1)

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(emphasis added). While plaintiff makes some conclusory allegations about undesired conduct

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toward him on the basis of his national origin or race, his actual, factual allegations consistently

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fail to draw any link between the conduct complained of on the one hand and his national origin or

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race on the other. See, e.g., Dkt. No. 21 ¶ 32 (“The plaintiff worked overtime almost on a daily

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basis to achieve his sales quotas. However, he was being denied [] scheduled vacation time. This

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benefit was granted to his other colleagues because a replacement was provided to take over their

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duties during their absence.”); ¶ 37 (“By supporting the aggressions specifically targeted at the

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plaintiff, the defendant failed to promote an atmosphere favorable to inter-ethnic collaboration and

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respect.”). While plaintiff includes allegations about his subjective belief that his advancement

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within the company was limited “because of his national origin, easily discernable by his accent,”

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Dkt. No. 21 ¶ 33, that kind of allegation is insufficient. Plaintiff must come forward with non-

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conclusory allegations of fact, not merely statements of his subjective beliefs, tying discriminatory

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acts by his employer with plaintiff’s national origin or race.

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The Court consequently dismisses the complaint under Rule 12(b)(6). The Court must

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“grant leave to amend even if no request to amend the pleading was made, unless it determines

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that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203
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F.3d 1122, 1130 (9th Cir. 2000) (internal quotation marks and citation omitted). That is not

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something the Court can say at this juncture, and so granting plaintiff leave to amend is more than

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appropriate. Plaintiff will have until May 3, 2017, to file his amended complaint.

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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

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for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th

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floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in

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Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be

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made by calling [phone] or signing up in the appointment book located outside either

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office. Lawyers at the Legal Help Center can provide basic assistance to parties representing

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United States District Court
Northern District of California

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themselves but cannot provide legal representation.

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IT IS SO ORDERED.
Dated: March 30, 2017

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JAMES DONATO
United States District Judge

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