United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
[RE: ECF 9]
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
se Plaintiff, Mazen Arakji, claims that Microsemi
Corporation (“Microsemi”), subsequently acquired
by Defendant, Microchip Technology, Inc.
(“Microchip”), engaged in unlawful discrimination
by declining to hire him and harassed him based on his race,
religion, and disability. Before the Court is Microchip's
unopposed motion to dismiss. MTD, ECF 9. For the reasons
stated below, the Court GRANTS Defendant's motion WITH
LEAVE TO AMEND.
is a 38-year-old male, who for “[M]uslim religious
purposes, ” wears a long beard. Compl. ¶ 1, ECF
1-1. Plaintiff also has a “very obvious musculoskeletal
disability which limits [his] ability to grip and lift heavy
objects.” Id. Plaintiff's “national
origin is Lebanese, which is an Arab country in the Middle
East” and has “Arabic ancestry and ethnic
characteristics.” Id. Plaintiff's first
name “Mazen” is “known to be an Arabic
name” and his surname “Arakji” is
“known to be a [M]uslim surname.” Id.
holds two degree from the University of Colorado, Boulder:
(1) “Bachelors Electrical and Computer
Engineering” and (2) “Masters Computer
Engineering.” Id. ¶ 2. Plaintiff has
earned various certifications in his field. Id.
¶¶ 3-4. Plaintiff worked at Sun Microsystems (now
Oracle), where he was promoted within 6 months and was
accepted into the “selective Sun Engineering Enrichment
& Development (SEED) program” on the technical
tract-designed for individuals with a high potential to
excel. Id. ¶ 5. He received a letter from a
previous employer commending his performance and
contributions. Id. Recently, Plaintiff has developed
three Android and two iOS applications. Id.
Plaintiff has also developed a “novel RTOS
architecture” for which he has a patent pending.
applied for “over 1000 positions” between 2012
and 2014 but was unable to secure employment. Id.
¶ 7. In April 2014, Plaintiff was arrested and
subsequently harassed and intimidated by the police in
Colorado. Id. ¶¶ 8-9. He was again
arrested “without probable cause” and mistreated
in Colorado in August 2014. Id. ¶¶ 10-11.
He filed a civil suit in April 2015. Id. ¶ 12.
November 2015, Plaintiff traveled overseas to pursue
employment opportunities. Id. ¶ 13. Plaintiff
was unable to return to the United States because his tax
refund was not transferred to his account. Id.
¶ 15. Plaintiff was unable to secure employment
overseas, but while there, he created and released the
Android and iOS applications mentioned earlier. Id.
¶ 16. While in Egypt, Plaintiff was twice apprehended
and jailed. Id. ¶ 17. One of those arrests took
place shortly after a successful interview with Telepin for
an Android developer position. Id. Plaintiff was
interrogated and mistreated while in Egyptian prison.
Id. ¶ 18. In November 2016, Plaintiff returned
to San Jose, California, homeless and without any belongings
or money. Id. ¶ 19. He is “deeply
traumatized by all the experiences [he] ha[s] been
“applied for several Firmware Engineer positions at
Microsemi between January and April of 2017.”
Id. ¶ 20. On May 1, 2017, Plaintiff was
telephonically interviewed by Srinivas Yelisetti (a hiring
manager at Microsemi) and had a “positive
experience.” Id. ¶ 23. Plaintiff was then
contacted by Donna Vespe (a Senior Talent Acquisition
Partner) and was offered an invitation for an on-site
interview on May 10, 2017, in Sunnyvale, California.
Id. Upon arrival, Plaintiff was told that his
interview was cancelled. Id. ¶ 24.
Nevertheless, he waited for several hours and proceeded with
the interview, which was “another positive
experience.” Id. ¶¶ 24-25. Several
days later, Plaintiff was contacted and was informed that
“the interview had been voided by HR.”
Id. ¶ 25. On January 5, 2018, Plaintiff was
contacted by Donna Vespe for another interview, which she
cancelled two days prior to the interview. Id.
¶ 26. Plaintiff has since applied for “other
positions at Microsemi, ” but received responses that
the positions he applied for were cancelled. Id.
alleges that Microchip “intentionally wanted to deny
[him] an opportunity for employment despite the fact that [he
is] qualified.” Id. ¶ 28. According to
Plaintiff, “Defendant discriminated because the
Defendant is revolted by people of [his] religion, national
origin, ancestry, ethnic characteristics and disability, and
especially those with a combination of all of the
above.” Id.Plaintiff claims that Microchip
violated Cal. Gov't Code § 12940 by (1) denying him
employment and (2) harassing him, due to his religious creed,
national origin, ancestry, and disability. Id.
¶¶ 29-30. Plaintiff claims that he obtained
right-to-sue notices on both claims from the Department of
Fair Employment and Housing (“DFEH”) on March 3,
February 28, 2019, Plaintiff, filed suit against Microchip in
the Superior Court of California for the County of Santa
Clara. See Compl. On May 28, 2019, Microchip removed
the case to United States District Court for the Northern
District of California based on diversity of citizenship. ECF
1. Plaintiff filed a motion to remand, which the Court
denied. ECF 16.
Defendant's Motion to Dismiss
concedes that Plaintiff has adequately pled that he falls
within a number of protected classes but argue that his
“Complaint fails to allege any facts
suggesting that Defendant refused to hire him
because he is a member of those protected
classes.” MTD at 2. Defendant moves to dismiss based on
the following grounds: (1) the Complaint lacks facts
necessary to sufficiently allege a FEHA claim for
discrimination (e.g., that he was qualified for the
position(s) for which he applied, that Defendant either
filled the position with someone who was less qualified and
not within his protected classes, or continued searching for
applicants of comparable qualifications), (2) the Complaint
lacks facts necessary to sufficiently allege a FEHA claim for
harassment (e.g., that he experienced unwelcome
conduct or comments, based on one or more of his protected
classes), and (3) Plaintiff fails to plead facts showing he
exhausted his administrative remedies. Id. at 6-9.
acknowledges that Plaintiff has alleged that he obtained DFEH
right-to-sue notices on March 3, 2018. Id. at 8;
see also Compl. ¶¶ 29-30. Nevertheless,
Defendant argues that Plaintiff has failed to include facts
to support those allegations (e.g., when he filed a
complaint with the DFEH or what protected classification he
asserted as basis of his DFEH complaint). MTD at 8. Defendant
claims that ...