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)

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. 51 10 SERVICESOURCE INTERNATIONAL INC., 11 United States District Court Northern District of California Case No. 15-cv-04892-JD Defendant. 12 13 Before the Court is defendant’s motion to dismiss plaintiff’s second amended complaint. 14 Dkt. No. 51. The Court dismissed plaintiff’s prior amended complaint with leave to amend. Dkt. 15 No. 48. Because the second amended complaint falls short for the same reasons as before, the 16 motion is granted. 17 Plaintiff’s basic contentions have not changed. Proceeding pro se, plaintiff alleges a claim 18 in four sub-parts: for discrimination based on national origin; “harassment, hostile work 19 environment”; retaliation; and “pay & benefit discrimination.” Dkt. No. 49 at 9-12. He continues 20 to state that his action is “brought pursuant to Title VII of the Civil Rights Act of 1964 for 21 employment discrimination.” Id. at 1, 12-13. As the Court previously noted and as plaintiff 22 acknowledges, Title VII prohibits certain types of discriminatory conduct by employers when 23 undertaken “because of [an] individual’s race, color, religion, sex or national origin.” Dkt. No. 48 24 at 2 (quoting 42 U.S.C. § 2000e-2(a)(1)); Dkt. No. 49 at 12-13 (same). 25 While the current iteration of plaintiff’s complaint contains some additional details, the 26 fatal flaw remains -- the non-conclusory, factual allegations in it do not establish a plausible link 27 between the conduct complained of and plaintiff’s national origin or race. For example, plaintiff 28 now alleges that out of a sample list of 70 employees, he was “the only African immigrant 1 worker.” Dkt. No. 49 at 3; see also id. at 4 (only 2 African immigrants out of approximately 600 2 employees working from the Tennessee Branch in 2012-2013). This made plaintiff, who is a 3 citizen of Benin, a “minority within the ‘Black employees’ minority group,” and put him at “an 4 obvious disadvantage from a numerical perspective and more vulnerable to attacks.” Id. Plaintiff 5 goes on to allege that his fellow employee aggressors were “White Caucasian,” “Asian/White,” or 6 “African American.” Id. at 4-5. But plaintiff’s own motion to dismiss opposition brief 7 underscores the disconnect and deficiency in his complaint allegations. In the brief, he asks, 8 “what else, other than a racial animus could motivate a co-worker to insult the plaintiff . . . without 9 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 11 United States District Court Northern District of California 10 at him?” Id. What plaintiff fails to accept is that there are many equally plausible possible 12 answers to the questions he poses, albeit rhetorically. And to say -- without additional, more 13 specific factual allegations -- that “racial animus” or “racial hate” are the only possible answers is 14 nothing more than speculation. 15 As the Supreme Court held in Bell Atlantic Corporation v. Twombly, to get across the 16 plausibility bar under Rule 8(a)(2), “[f]actual allegations must be enough to raise a right to relief 17 above the speculative level.” 550 U.S. 544, 555 (2007) (quoting 5 C. Wright & A. Miller, Federal 18 Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004), for proposition that “the pleading must 19 contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a 20 legally cognizable right of action”). Plaintiff’s complaint continues to fail that bar. Because of 21 that key defect that cuts across all of his claims, and for all of the additional reasons identified by 22 defendant’s motion, Dkt. No. 51, the Court concludes that plaintiff again has not adequately 23 alleged an actionable claim. This includes plaintiff’s claim for retaliation. See Learned v. City of 24 Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (the conduct that the employee allegedly opposed 25 “must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation,” or if 26 basis of claim is that employee participated in investigation or proceeding involving charges of 27 discrimination, “the underlying discrimination must be reasonably perceived as discrimination 28 prohibited by Title VII”). 2 1 The only question that remains is whether the Court should grant further leave to amend. 2 That is not warranted here. Plaintiff has now had three tries to state a cognizable claim, Dkt. Nos. 3 1, 21, 49, and his opposition brief on this motion, Dkt. No. 52, does not indicate any good faith 4 basis for new allegations that might cure the deficiencies now twice identified by the Court. 5 While he is proceeding pro se and gets some benefit of the doubt, he still has the obligation to 6 meet the plausibility standard set out in Twombly, 550 U.S. at 555-63, and Ashcroft v. Iqbal, 556 7 U.S. 662, 678-80 (2009). See Gardner v. Chevron Capital Corporation, No. 15-cv-01514-JD, 8 2015 WL 12976114, at *1 (N.D. Cal. Aug. 27, 2015). 9 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. 11 United States District Court Northern District of California 10 United States, 90 F.3d 351, 355 (9th Cir. 1996); Gardner v. Chevron Capital Corp., No. 16- 12 16911, 2018 WL 1406657, at *2 (9th Cir. Mar. 21, 2018). 13 The Clerk will enter judgment and close the file. 14 IT IS SO ORDERED. 15 Dated: April 9, 2018 16 17 JAMES DONATO United States District Judge 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?