Alhayoti v. Blinken

• Court: District Court, N.D. California
• Decided: July 28, 2023
• Docket: 3:21-cv-07713
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 ASAM ALHAYOTI, Case No. 21-cv-07713-LB

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS

14 ANTONY BLINKEN, et al., Re: ECF No. 62 15 Defendants. 16 17 INTRODUCTION 18 The plaintiff worked for the U.S. Embassy in Sana’a, Yemen, and the U.S. Department of 19 State paid him the local prevailing wage under its internal policies.1 After the Embassy closed 20 following the outbreak of war in Yemen, the plaintiff, who holds citizenship in the United States 21 and Yemen, returned to the U.S. and continued to receive a salary based on the prevailing wage in 22 Yemen.2 The plaintiff claims that the defendant (Antony Blinken, in his official capacity as 23 Secretary of the U.S. Department of State) discriminated against him, in violation of Title VII of 24 the Civil Rights Act of 1964.3 The court dismisses the complaint — as it did an earlier complaint 25

26 1 Third Am. Compl. (TAC) – ECF No. 57 at 5. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Id. at 15–17. 1 — because the plaintiff’s Title VII claim is based on the nonactionable theory that the plaintiff’s 2 U.S. citizenship entitled him to extra benefits relative to other local employees in Yemen.4 3 Because this is the plaintiff’s fourth complaint, the dismissal is with prejudice. 4 5 STATEMENT 6 The plaintiff is a dual citizen of the United States and Yemen. In 2010, the Department hired 7 him as a Foreign Service National Investigator at the U.S. Embassy in Sana’a, Yemen, under the 8 local-employee (LE) staff category. The local-employee designation meant that the plaintiff was 9 paid the local prevailing wage in Yemen. Because the plaintiff was also a U.S. citizen, the Foreign 10 Service Act required that — even though he was hired in the local-employee category — he 11 receive no less than the federal minimum wage.5 The local-employee category contrasts with the 12 direct-hire-employee category because direct-hire employees are appointed by the Secretary of 13 State under general U.S. Government appointment rules.6 Direct-hire employees generally receive 14 higher pay.7 According to the State Department, “[t]here is no process for a transfer from LE Staff 15 to a U.S. direct hire position.”8 16 The earlier order recounts the plaintiff’s accomplishments: he performed well and received 17 promotions and excellent evaluations.9 The U.S. Embassy in Sana’a ultimately suspended 18 operations in February 2015, and United States direct-hire employees were evacuated. In March 19 2015, the plaintiff sent his wife and children back to the United States. He remained in Yemen 20 working for the Department until October 2015, when he too returned to the United States. After 21 arriving back in the United States, he continued to work for the Department by communicating with 22

23 4 Order – ECF No. 40. 24 5 TAC – ECF No. 57 at 5; Admin. Compl. to Off. of Civ. Rts. – ECF No. 25-1 at 3; Mot. – ECF No. 62 at 8–9 (citing 22 U.S.C. § 3968(a)(1)). 25 6 Off. of Civ. Rts. Investigative Rep. – ECF No. 25-1 at 111; U.S. Dep’t of State Foreign Affs. Manual 26 § 7121, https://fam.state.gov. 7 EEO Investigative Aff. – ECF No. 25-1 at 258. 27 8 Admin. Compl. to Off. of Civ. Rts. – ECF No. 25-1 at 10. 1 contacts in Yemen by phone. Nonetheless, the Department placed him on “non-caretaker” or 2 inactive status.10 In October 2015, the Department offered him a Temporary Duty Assignment in 3 Saudia Arabia, but he declined because his being in Saudia Arabia would make him a “traitor” in 4 the eyes of his Yemeni contacts.11 5 By summer 2016, the plaintiff realized that he would not get a Temporary Duty Travel 6 assignment in a “neutral country” and asked Special Agent Jeremy Clark for better pay and benefits. 7 Mr. Clark said that there was no provision to change his pay scale but helped the plaintiff obtain a 8 part-time consulting position with a private company, AC4S.12 9 In 2018, the Embassy in Sana’a began preparing for a reduction in force of Yemen LE staff.13 10 But in the period before that, during 2017, there was excitement (by Mr. Clark and David McComas 11 at AC4S) about a coup that a former president would attempt against the regime. The plaintiff’s 12 contacts at AC4S told him that if the coup was successful, then he would return to Yemen with a 13 well-paying job. The coup failed: the former president was assassinated. The plaintiff’s 14 understanding of security risks were credited before the failed coup but discounted after it because 15 the U.S. gave up on a speedy conclusion to the war. At this point, the plaintiff realized that the 16 respectful treatment he had received was due only to the Department’s need for his abilities. The 17 failed coup ended that treatment, and he “went from being an award winning star employee to just a 18 ‘local hire,’ according to [his supervisor] Joshua Godbois.”14 Until that point (when the Department 19 no longer needed him), he “was treated like a valuable employee that they needed and respected.” 20 The plaintiff received a Reduction-in-Force Notice in June 2019, and his employment with the State 21 Department ended on July 21, 2019.15 22 23

24 10 TAC – ECF No. 57 at 15–16; Admin. Compl. to Off. of Civ. Rts. – ECF No. 25-1 at 12. 25 11 TAC – ECF No. 57 at 16; EEO Investigative Aff. – ECF No. 25-1 at 137–38. 26 12 TAC – ECF No. 57 at 17–18. 13 Notice – ECF No. 25-3 at 1–2.. 27 14 TAC – ECF No. 57 at 19–20. 1 The plaintiff’s view is that he witnessed discriminatory treatment of Yemenis by American staff 2 throughout his employment, and once the Department did not need him, he received unwarranted 3 “disparate treatment” that did not reflect his award-winning work history. “It is this sudden change 4 in treatment that is evidence of disparate treatment towards [him] based on [his] Yemini descent.”16 5 Earlier in the complaint, the plaintiff alleges that his first RSO John Taylor said, “[w]e need to 6 get these Yemeni monkeys in line” (referring to a lack of cooperation from Yemeni government 7 officials). Mr. Taylor had many such outbursts (though never specifically leveled insults at the 8 plaintiff).17 The plaintiff saw other discriminatory behavior toward the Yemeni people by 9 American staff members.18 Every supervisor he had told him that they could not adjust his 10 compensation unless he returned to the U.S. and was hired from there (a representation that he 11 characterizes as a lie).19 12 The plaintiff also alleges that he witnessed American employees getting away with crimes: 13 (1) an employee named Adam Dolan who was investigated for his behavior at the embassy in 14 Yemen because he was arrested in Brazil when he pushed a woman out of a moving car; (2) 15 someone asking him to use his contacts to help an FBI agent who — while driving drunk — killed a 16 father of five; (3) another request to help someone who killed a pedestrian while rushing to work; 17 (4) an embassy-convoy car that ran over a little girl’s foot; (5) a prostitution ring of underage girls 18 brought to the embassy; and (6) payoffs by Yemeni property owners to American employees for 19 housing.20 The point of these allegations is that the plaintiff “would not be surprised if it was a 20 personal decision [by Adam Dolan] to discriminate against” him by putting him “in the Yemeni 21 category instead of the U.S. [c]itizen category.”21 22 23

24 16 TAC – ECF No. 57 at 21. 25 17 Id. at 9–10. 26 18 Id. at 10. 19 Id. at 11. 27 20 Id. at 8–9. 1 This is the plaintiff’s fourth complaint. He filed his original complaint in October 2021 and an 2 amended complaint in April 2022.22 In its order dismissing the second amended complaint, the 3 court held that the plaintiff’s sole remedy was under Title VII, dismissed claims brought under 4 Department policies and the WARN Act with prejudice, and dismissed the Title VII claim because 5 he claimed only that the Department treated him differently because of his U.S. citizenship, which 6 is not an actionable claim. The dismissal was without prejudice to allow the plaintiff to allege facts 7 to support his Title VII claim.23 The plaintiff filed a second amended complaint and then, pursuant 8 to the parties’ stipulation, the operative third amended complaint claiming Title VII violations based 9 on disparate treatment and disparate impact.24 10 The government moved to dismiss under Rule 12(b)(6) for failure to state a claim.25 The court 11 can decide the dispute motion without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court has 12 federal-question jurisdiction. 28 U.S.C. § 1331. The parties consented to magistrate-judge 13 jurisdiction.26 Id. § 636(c). 14 LEGAL STANDARD 15 A complaint must contain a “short and plain statement of the claim showing that the pleader is 16 entitled to relief” to give the defendant “fair notice” of (1) what the claims are and (2) the grounds 17 upon which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 18 (2007). Thus, “[a] complaint may fail to show a right to relief either by lacking a cognizable legal 19 theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank 20 N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). 21 A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide 22 the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a 23 formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 24

25 22 Compl. – ECF No. 1; FAC – ECF No. 25. 26 23 Order – ECF No. 40. 24 Second Am. Compl. – ECF No. 44; Stipulation – ECF No. 51; TAC – ECF No. 57 at 23. 27 25 Mot. – ECF No. 62. 1 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned 2 up). A complaint must contain factual allegations that, when accepted as true, are sufficient to 3 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); 4 NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 F. App’x 231, 234 (9th 5 Cir. 2020). “[O]nly the claim needs to be plausible, and not the facts themselves . . . .” NorthBay, 6 838 F. App’x at 234 (citing Iqbal, 556 U.S. at 696); see Interpipe Contracting, Inc. v. Becerra, 7 898 F.3d 879, 886–87 (9th Cir. 2018) (the court must accept the factual allegations in the 8 complaint “as true and construe them in the light most favorable to the plaintiff”) (cleaned up). 9 Put another way, “[a] claim has facial plausibility when the plaintiff pleads factual content that 10 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 11 alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability 12 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 13 Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops 14 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (cleaned up). 15 If a court dismisses a complaint because of insufficient factual allegations, it should give leave 16 to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, 17 Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). If a court 18 dismisses a complaint because its legal theory is not cognizable, the court should give leave to 19 amend if the plaintiff could “articulate a cognizable legal theory if given the opportunity.” Steele- 20 Klein v. Int’l Bhd. of Teamsters, Loc. 117, 696 F. App’x 200, 202 (9th Cir. 2017). 21 22 ANALYSIS 23 The plaintiff’s claim is based on alleged violations of Title VII of the Civil Rights Act of 1964. 24 The court dismisses the claim because the plaintiff’s core theory — that the Department violated 25 Title VII by not giving him special treatment for his U.S. citizenship — is not actionable under 26 Title VII because citizenship and alienage are not protected categories. 27 “To establish a prima facie case under Title VII, a plaintiff must offer proof: (1) that the 1 her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the 2 plaintiff’s employer treated the plaintiff differently than a similarly situated employee who does 3 not belong to the same protected class as the plaintiff.” Cornwell v. Electra Cent. Credit Union, 4 439 F.3d 1018, 1028 (9th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 802 (1973)). 6 The terms “adverse employment action” and “protected class” have specific meanings in Title 7 VII cases. “[A]n adverse employment action is one that materially affects the compensation, 8 terms, conditions, or privileges of employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 9 (9th Cir. 2008) (cleaned up). The protected classes include “race, color, religion, sex, or national 10 origin.” 42 U.S.C. § 2000e-2. Citizenship and alienage are not protected classes for purposes of 11 Title VII. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973). 12 The standard for evaluating Title VII claims differs depending on whether it is challenged 13 through a motion to dismiss or motion for summary judgment. On a motion for summary 14 judgment, courts analyze Title VII claims using a burden-shifting framework that the Supreme 15 Court established in McDonnell Douglas Corp.. Young v. Buttigieg, No. 19-cv-01411-JCS, 2021 16 WL 981305, at *6 (N.D. Cal. Mar. 16, 2021) (citing Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 17 1151, 1155 (9th Cir. 2010)). Under this framework, the plaintiff must present a prima facie case of 18 discrimination; then the burden shifts to the defendant to articulate a “nondiscriminatory reason 19 for the challenged action, and if the defendant does so, the plaintiff must then raise a triable issue 20 of material fact as to whether the defendant’s proffered reasons are mere pretext for unlawful 21 discrimination.” Id. (cleaned up). 22 This burden-shifting framework, however, is inapplicable at the motion-to-dismiss stage. Id. 23 (citing Austin v. Univ. of Or., 925 F.3d 1133, 1136–37 (9th Cir. 2019)). Furthermore, “a plaintiff’s 24 allegations need not track each element of a prima facie case.” Id. But to survive a motion to 25 dismiss, “a plaintiff’s complaint still must include sufficient, nonconclusory allegations plausibly 26 linking the adverse action to discrimination.” Id. (cleaned up); see also Santiago v. DeJoy, No. 20- 27 cv-1571 YGR, 2020 WL 6118528, at *4 (N.D. Cal. Oct. 16, 2020) (“While plaintiff is not required 1 complaint must provide fair notice of the basis for the plaintiff’s claims.”) (citing Swierkiewicz v. 2 Sorema N. A., 534 U.S. 506, 514 (2002)). 3 Given this pleading standard, “a plaintiff alleging discrimination under Title VII may proceed 4 under two theories of liability: disparate treatment or disparate impact.” Garcia v. Spun Steak Co., 5 998 F.2d 1480, 1484 (9th Cir. 1993).27 6 7 1. Disparate Treatment 8 “Stating a claim for disparate treatment requires pleading facts giving rise to an inference that 9 the employer intended to discriminate against the protected group.” Liu v. Uber Techs. Inc., 551 F. 10 Supp. 3d 988, 992 (N.D. Cal. 2021) (citing Wood v. City of San Diego, 678 F.3d 1075, 1081 11 (9th Cir. 2012)). The plaintiff “must allege either direct evidence of discrimination, such as 12 derogatory comments about his gender or race, or circumstantial evidence, which may include 13 allegations that similarly situated individuals outside his protected class were treated more 14 favorably or that other circumstances surrounding the at-issue employment action give rise to an 15 inference of discrimination.” Austin v. City of Oakland, No. 17-cv-03284 YGR, 2018 WL 16 2427679, at *4 (N.D. Cal. May 30, 2018) (cleaned up). For example, in Liu, the court held that 17 mere awareness of a disparate impact is “not sufficient to infer [an] intent” to discriminate and 18 dismissed a Title VII disparate-treatment claim. 551 F. Supp. 3d at 992. The plaintiff had alleged 19 that Uber’s rating system for drivers was discriminatory because the ratings incorporated the 20 “racial biases of Uber riders.” Id. at 990. On the other hand, courts in this district have denied 21 motions to dismiss where the plaintiff identified “incidents where a retaliatory or discriminatory 22 motive can plausibly be inferred.” Williams v. Wolf, No. 19-cv-00652-JCS, 2020 WL 1245369, at 23 *10 (N.D. Cal. Mar. 16, 2020). 24 Furthermore, the discriminatory motive must be based on the plaintiff’s status as a member of a 25 protected class. Cornwell, 439 F.3d at 1028 (an element of a Title VII claim is “that the plaintiff’s 26 employer treated the plaintiff differently than a similarly situated employee who does not belong to 27 1 the same protected class as the plaintiff”); see also Santiago, 2020 WL 6118528, at *4 2 (discriminatory intent can be established by citing “derogatory comments based on the protected 3 status — or through circumstantial evidence — such as evidence that similarly situated individuals 4 outside the plaintiff’s protected class were treated more favorably or other circumstances giving rise 5 to an inference that the action was because of discrimination”).28 6 Regarding the protected categories, Title VII does not prohibit discrimination based on 7 citizenship status or alienage. Espinoza, 414 U.S. at 95; Ventress v. Japan Airlines, 486 F.3d 1111, 8 1116 n.5 (9th Cir. 2007). For example, in Rai v. IBM Credit Corp., the court granted summary 9 judgment for the defendant employer on the plaintiff’s Title VII claim because the plaintiff admitted 10 in a deposition that the only reason he “didn’t become a regular employee [was] because [he] didn’t 11 have a green card.” No. C 01-02283 CRB, 2002 WL 1808741, at *4 (N.D. Cal. Aug. 1, 2002). 12 Courts outside of this district have reached similar conclusions. In Garcia v. Pompeo, a court 13 in the District of Columbia granted summary judgment to the defendant on a Title VII claim that 14 was like the claim at issue here. No. 1:18-cv-01822 (APM), 2020 WL 134865, at *4 (D.D.C. Jan. 15 13, 2020). In Garcia, the plaintiff challenged the Department’s practice of “conduct[ing] security 16 certifications for all locally hired staff who did not require a security clearance, whether or not 17 they were United States citizens.” Id. at *2. The court held that the plaintiff had not stated a prima 18 facie claim for Title VII discrimination because “his charge [was] that everyone, citizens and non- 19 citizens alike, regardless of birthplace or national origin, were being treated the same, when he 20 should have been advantaged as a U.S. citizen and not subject to a security review.” Id. at *4. In 21 short, Title VII generally does not prohibit discrimination based on citizenship status. 22 There is a caveat to this rule: using citizenship as a pretext for prohibited racial or national- 23 origin discrimination violates Title VII. Espinoza, 414 U.S. at 92 (Title VII “prohibits 24 discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating 25 on the basis of national origin”). In Espinoza, the Court held that the defendant was not using 26 citizenship as a proxy for race or national origin because “[t]here [was] no suggestion, for 27 1 example, that the company refused to hire aliens of Mexican or Spanish-speaking background 2 while hiring those of other national origins.” Id. at 92 n.5. 3 Accordingly, to maintain a Title VII claim, the plaintiff must allege that the underlying animus 4 was based on the plaintiff’s national origin rather than the plaintiff’s citizenship. See, e.g., 5 Stankovic v. Newman, No. 3:12-CV-399 RNC, 2013 WL 6842530, at *3 (D. Conn. Dec. 27, 2013) 6 (granting motion to dismiss where the plaintiff did “not claim that [the defendant’s] alleged 7 preference for U.S. citizens was designed to discriminate against Australians”); Samuel v. Metro. 8 Police Dep’t, 258 F. Supp. 3d 27, 41 (D.D.C. 2017) (denying motion for summary judgment 9 where the defendant did not show that the “alleged animus was rooted in [the plaintiff’s] status as 10 a non-citizen rather than her Canadian national origin”). 11 Given the foregoing, the issue is whether the plaintiff has alleged facts that support an 12 inference that the Department’s conduct was driven by an underlying animus based on race or 13 national origin. The plaintiff’s discriminatory-treatment claim fails because his allegations do not 14 meet this threshold. 15 The plaintiff does not allege that the Department treated non-Yemeni local employees better or 16 directed any derogatory comments to him.29 To the contrary, the plaintiff contends that he was 17 treated well until the failed coup, which suggests that any poor treatment was a result of 18 operational concerns. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) 19 (the court is not “required to accept as true allegations that are . . . unwarranted deductions of 20 fact[] or unreasonable inferences”). Moreover, occasionally offensive outbursts like those the 21 plaintiff described are not an adverse employment action when they do not materially affect the 22 conditions of the plaintiff’s employment. Reyes v. S.F. Unified Sch. Distr., No. 11-cv-4628-YGR, 23 2012 WL 4343784, at *8 (N.D. Cal. Sept. 20, 2012) (“While perhaps unprofessional and 24 inappropriate language for a meeting . . . , the comment does not transform into an adverse 25 26 29 The government also points out that the plaintiff did not administratively exhaust any claims as to 27 discrete acts before 2019 and thus did not timely exhaust his administrative remedies. 29 C.F.R. § 1 employment action.”). Additionally, there are no allegations that the Department used his 2 citizenship status as a proxy for his race or national origin; the Department recognized the 3 plaintiff’s overall stellar performance and helped him find a part-time consulting job. 4 The plaintiff’s opposition reinforces the conclusion that his claim remains that he should have 5 received more pay because he is a U.S. citizen. Responding to the government’s argument, he 6 asserts that there are two important differences between his employment and other Yemeni LE 7 employees: (1) as a U.S. citizen, he had to receive the minimum wage and (2) he paid taxes.30 He 8 thus reasserts (as he did in his earlier complaint) his view that he is protectas a U.S. citizen, he 9 challenges other U.S. citizens’ receiving better benefits, and he asserts that he should have been 10 treated better than other local employees because he is a U.S. citizen.31 This theory is not an 11 actionable discriminatory-treatment claim under Title VII. Espinoza, 414 U.S. at 92; Garcia, 2020 12 WL 134865, at *4 (dismissing claim where the plaintiff argued that “he should have been 13 advantaged as a U.S. citizen and not subject to a security review”). 14 In sum, the plaintiff’s discriminatory-treatment theory is based on his U.S. citizenship and thus 15 is not actionable. Espinoza, 414 U.S. at 92. 16 17 2. Disparate Impact 18 The plaintiff’s disparate-impact theory also fails. 19 “To bring a disparate impact claim, a plaintiff must plead: (1) the existence of outwardly 20 neutral practices; (2) a significantly adverse or disproportionate impact on persons of a particular 21 type produced by the defendant’s facially neutral acts or practices; and (3) facts demonstrating a 22 causal connection between the specific challenged practice or policy and the alleged disparate 23 impact.” Thomas v. S.F. Hous. Auth., No. 16-cv-03819-CRB, 2018 WL 1184762, at *4 (N.D. Cal. 24 25 26

27 30 Opp’n – ECF No. 35 at 2–3. 1 Mar. 7, 2018) (cleaned up), aff’d, 765 F. App’x 368 (9th Cir. 2019); accord Freyd v. Univ. of 2 Oregon, 990 F.3d 1211, 1224 (9th Cir. 2021).32 3 “Plaintiffs need not prove the prima facie elements to survive a motion to dismiss, but must 4 plead the general elements to make a claim facially plausible.” Lee v. Hertz Corp., 330 F.R.D. 557, 5 561 (N.D. Cal. 2019). Furthermore, a plaintiff does not need to establish a discriminatory motive to 6 succeed on a disparate-impact theory. Palmer v. United States, 794 F.2d 534, 536 (9th Cir. 1986) 7 (citing Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). 8 Because the Department’s practice of distinguishing between local employees and direct hires 9 is neutral, the issues are whether the practice has a significantly disproportionate impact and 10 whether there is a causal connection between the challenged practice and any disproportionate 11 impact. Regarding disproportionate impact, statistical data is typically used to prove this element. 12 Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir. 2002) (“A prima facie case of disparate impact is 13 usually accomplished by statistical evidence showing that an employment practice selects 14 members of a protected class in a proportion smaller than their percentage in the pool of actual 15 applicants.”) (cleaned up). “But at the pleading stage, allegations of a disparity need not be so 16 precise.” Liu, 551 F. Supp. 3d at 991. 17 For instance, the plaintiff may point to “visually obvious inconsistencies between the racial 18 composition of the defendant’s employees and that of the surrounding population.” Id. (citing 19 Chaidez v. Ford Motor Co., 937 F.3d 998, 1002 n.1 (7th Cir. 2019)). The plaintiff may also rely 20 on personal experiences, such as an awareness that “female colleagues received lower 21 performance evaluations despite performing as well as or better than their male peers,” to establish 22 disproportionate impact. Id.; see Arnold v. Sessions, No. 4:18-cv-00553-KAW, 2018 WL 23 6728008, at *8 (N.D. Cal. Dec. 21, 2018) (“[T]he ‘upper end’ for sufficiently alleging the 24 ‘significantly adverse or disproportionate impact on persons of a particular type’ prong is met by 25 pleading some form of statistical data.”). 26 27 1 Concerning the requirement to plead that the neutral practice caused the disparate impact, the 2 requirement can be satisfied by alleging a plausible theory of causation. For example, the court in 3 Lee held that the plaintiff adequately pleaded causation by alleging that a neutral background 4 check policy that barred all applicants with a conviction record had a disproportionate impact 5 based on allegations that “Latinos were arrested and convicted of crimes at more than double the 6 rates of whites.” 330 F.R.D. at 561. The causation element can also be pleaded by citing scientific 7 literature describing the racial bias associated with purportedly race-neutral practices like 8 customer rating programs. Liu, 551 F. Supp. 3d at 991–92. 9 The plaintiff’s complaint does not plead a plausible Title VII disparate-impact claim. The 10 plaintiff has not alleged any facts showing that the Department’s distinction between local 11 employees and direct hires had a disproportionate impact on any protected group. Instead, the 12 plaintiff continues to assert that the LE hiring category has a disproportionate impact on 13 individuals based on their national origin because it results in lower pay for U.S. citizens if they 14 have the local national origin.33 As the court said previously, this theory is flawed because it 15 depends on comparing pay for individuals who are stationed in different diplomatic facilities 16 under different conditions and who may be performing different tasks. This is not a valid 17 comparison for purposes of analyzing a discrimination claim. Individuals in different diplomatic 18 facilities in different countries are not necessarily “similarly situated.” See, e.g., Moussouris, 2016 19 WL 6037978, at *6 (allegation that the plaintiffs “and similarly situated women performed as well 20 as or better than their male peers but received inferior performance evaluations” was sufficient to 21 state a claim on a disparate-impact theory). 22 23 CONCLUSION 24 The court dismisses the complaint without leave to amend because — despite having the 25 opportunity to do so — the plaintiff did not cure the deficiencies identified in the court’s earlier 26 order. 27 ] This resolves ECF No. 62. 2 IT IS SO ORDERED. 3 Dated: July 28, 2023 LAE 4 Oe LAUREL BEELER 5 United States Magistrate Judge 6 7 8 9 10 1] as 12

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