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preliminary matter, the Court deems withdrawn defendant's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