Lokossou v. ServiceSource International Inc.

Filing 59

ORDER RE MOTION TO DISMISS. Signed by Judge James Donato on 4/9/2018. (jdlc2S, COURT STAFF) (Filed on 4/9/2018)

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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. 51

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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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Before the Court is defendant’s motion to dismiss plaintiff’s second amended complaint.

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Dkt. No. 51. The Court dismissed plaintiff’s prior amended complaint with leave to amend. Dkt.

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No. 48. Because the second amended complaint falls short for the same reasons as before, the

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motion is granted.

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Plaintiff’s basic contentions have not changed. Proceeding pro se, plaintiff alleges a claim

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in four sub-parts: for discrimination based on national origin; “harassment, hostile work

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environment”; retaliation; and “pay & benefit discrimination.” Dkt. No. 49 at 9-12. He continues

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to state that his action is “brought pursuant to Title VII of the Civil Rights Act of 1964 for

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employment discrimination.” Id. at 1, 12-13. As the Court previously noted and as plaintiff

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acknowledges, Title VII prohibits certain types of discriminatory conduct by employers when

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undertaken “because of [an] individual’s race, color, religion, sex or national origin.” Dkt. No. 48

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at 2 (quoting 42 U.S.C. § 2000e-2(a)(1)); Dkt. No. 49 at 12-13 (same).

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While the current iteration of plaintiff’s complaint contains some additional details, the

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fatal flaw remains -- the non-conclusory, factual allegations in it do not establish a plausible link

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between the conduct complained of and plaintiff’s national origin or race. For example, plaintiff

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now alleges that out of a sample list of 70 employees, he was “the only African immigrant

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worker.” Dkt. No. 49 at 3; see also id. at 4 (only 2 African immigrants out of approximately 600

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employees working from the Tennessee Branch in 2012-2013). This made plaintiff, who is a

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citizen of Benin, a “minority within the ‘Black employees’ minority group,” and put him at “an

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obvious disadvantage from a numerical perspective and more vulnerable to attacks.” Id. Plaintiff

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goes on to allege that his fellow employee aggressors were “White Caucasian,” “Asian/White,” or

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“African American.” Id. at 4-5. But plaintiff’s own motion to dismiss opposition brief

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underscores the disconnect and deficiency in his complaint allegations. In the brief, he asks,

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“what else, other than a racial animus could motivate a co-worker to insult the plaintiff . . . without

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cause . . . ?” Dkt. No. 52 at 7. And “[w]hat else, if not racial hate could motivate a supervisor to
place his foot with dirty shoes on the plaintiff’s table supposedly to tie his shoe laces while yelling

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United States District Court
Northern District of California

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at him?” Id. What plaintiff fails to accept is that there are many equally plausible possible

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answers to the questions he poses, albeit rhetorically. And to say -- without additional, more

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specific factual allegations -- that “racial animus” or “racial hate” are the only possible answers is

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nothing more than speculation.

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As the Supreme Court held in Bell Atlantic Corporation v. Twombly, to get across the

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plausibility bar under Rule 8(a)(2), “[f]actual allegations must be enough to raise a right to relief

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above the speculative level.” 550 U.S. 544, 555 (2007) (quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004), for proposition that “the pleading must

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contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a

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legally cognizable right of action”). Plaintiff’s complaint continues to fail that bar. Because of

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that key defect that cuts across all of his claims, and for all of the additional reasons identified by

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defendant’s motion, Dkt. No. 51, the Court concludes that plaintiff again has not adequately

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alleged an actionable claim. This includes plaintiff’s claim for retaliation. See Learned v. City of

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Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (the conduct that the employee allegedly opposed

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“must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation,” or if

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basis of claim is that employee participated in investigation or proceeding involving charges of

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discrimination, “the underlying discrimination must be reasonably perceived as discrimination

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prohibited by Title VII”).
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The only question that remains is whether the Court should grant further leave to amend.

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That is not warranted here. Plaintiff has now had three tries to state a cognizable claim, Dkt. Nos.

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1, 21, 49, and his opposition brief on this motion, Dkt. No. 52, does not indicate any good faith

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basis for new allegations that might cure the deficiencies now twice identified by the Court.

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While he is proceeding pro se and gets some benefit of the doubt, he still has the obligation to

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meet the plausibility standard set out in Twombly, 550 U.S. at 555-63, and Ashcroft v. Iqbal, 556

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U.S. 662, 678-80 (2009). See Gardner v. Chevron Capital Corporation, No. 15-cv-01514-JD,

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2015 WL 12976114, at *1 (N.D. Cal. Aug. 27, 2015).

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The Court consequently grants defendant’s motion to dismiss, Dkt. No. 51, and dismisses
plaintiff’s second amended complaint with prejudice. See Sisseton-Wahpeton Sioux Tribe v.

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United States District Court
Northern District of California

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United States, 90 F.3d 351, 355 (9th Cir. 1996); Gardner v. Chevron Capital Corp., No. 16-

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16911, 2018 WL 1406657, at *2 (9th Cir. Mar. 21, 2018).

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The Clerk will enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: April 9, 2018

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JAMES DONATO
United States District Judge

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