Arakji v. Microchip Technology, Inc.

• Court: District Court, N.D. California
• Decided: April 10, 2020
• Docket: 5:19-cv-02936
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 MAZEN ARAKJI, Case No. 19-cv-02936

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS WITHOUT LEAVE TO AMEND 10 MICROCHIP TECHNOLOGY, [Re: ECF 23] 11 Defendants.

12 Before the Court is Defendant Microchip Technology’s motion to dismiss Plaintiff Mazen 13 Arakji’s first amended complaint (“FAC”) alleging unlawful discrimination and harassment under 14 the Fair Employment and Housing Act, Cal. Gov’t Code Section 12940 (“FEHA”). Mot., ECF 23. 15 Pursuant to Civil L.R. 7-1(b), the Court finds Defendant’s motion to dismiss suitable for decision 16 without oral argument and hereby VACATES the hearing scheduled for April 16, 2020. For the 17 reasons that follow, Defendant’s motion to dismiss is GRANTED WITHOUT LEAVE TO 18 AMEND. 19 I. BACKGROUND 20 Plaintiff is a 38-year-old male, who for “[M]uslim religious purposes,” wears a long beard. 21 FAC ¶ 1, ECF 22. Plaintiff also has a “very obvious musculoskeletal disability which limits [his] 22 ability to grip and lift heavy objects.” Id. Plaintiff’s “national origin is Lebanese, which is an Arab 23 country in the Middle East” and has “Arabic ancestry and ethnic characteristics.” Id. Plaintiff’s 24 first name “Mazen” is “known to be an Arabic name” and his surname “Arakji” is “known to be a 25 [M]uslim surname.” Id. 26 Plaintiff holds two degrees from the University of Colorado, Boulder: (1) Bachelors 27 Electrical and Computer Engineering and (2) Masters Computer Engineering. FAC ¶ 2. Plaintiff 1 has earned various certifications in his field. Id. ¶ 3-4. Plaintiff worked at Sun Microsystems (now 2 Oracle), where he was promoted within 6 months and was accepted into the “selective Sun 3 Engineering Enrichment & Development (SEED) program” on the technical tract—designed for 4 individuals with a high potential to excel. Id. ¶ 5. He received a letter from a previous employer 5 commending his performance and contributions. Id. Recently, Plaintiff developed three Android 6 and two iOS applications. Id. Plaintiff also developed a “novel RTOS architecture for which he 7 has a patent pending.” Id. 8 Plaintiff applied for “several Firmware Engineer positions at Microsemi (later acquired by 9 Defendant Microchip Technology) between January and April of 2017.” FAC ¶¶ 20, 21. On April 10 14, 2017, Plaintiff applied for the “Senior Firmware Design Engineer Position (requisition number 11 5244) . . . on the Microsemi careers website.” Id. ¶ 23. The requirements for the position as stated 12 in the online job posting on the Microsemi website are as follows: 13 • Bachelors with 5 years of experience or Master with 3 years’ experience. 14 • Strong C-programming skills and product development experience. 15 • Strong background in Software methodology and full-cycle development (design, 16 implementation, testing, and debugging). 17 • Must possess the ability to approach problems systematically. 18 • Must be able to interpret specification and standard documents well. 19 • Excellent written and oral communication skills. 20 Id. ¶ 24. Plaintiff claims that he not only meets and exceeds the requirements but that he has 21 focused on “embedded systems and firmware” throughout both his academic and professional 22 careers. Id. ¶¶ 25, 33. 23 On May 1, 2017, Plaintiff was telephonically interviewed by Srinivas Yelisetti (a hiring 24 manager at Microsemi) and had a “positive experience.” FAC ¶ 26. Plaintiff was then contacted 25 by Donna Vespe (a Senior Talent Acquisition Partner) and was offered an invitation for an on-site 26 interview on May 10, 2017, in Sunnyvale, California. Id. Upon arrival, Plaintiff was told that his 27 interview was cancelled. Id. ¶ 27. Nevertheless, he waited for several hours and proceeded with 1 “clearly qualified” for the position because “his interview experiences were positive.” Id. ¶ 33. 2 Several days later, Plaintiff was contacted and was informed that “the interview had been voided by 3 HR.” Id. ¶ 28. On January 5, 2018, Plaintiff was contacted by Donna Vespe for another interview, 4 which she then cancelled two days prior to the interview. Id. ¶ 29. Plaintiff has since applied for 5 “other positions at Microsemi,” but has received responses that the positions he applied for were 6 cancelled. Id. ¶ 30. Later in 2018, “Microsemi was acquired by Microchip Technology.” Id. ¶ 21. 7 Plaintiff alleges the “repetitive intentional cancelling of scheduled appointments and 8 positions constitutes a form of harassment and uncivilized ridicule.” FAC ¶ 31. Plaintiff claims 9 that “the set of possible reasons the Defendant has for denying [him] employment is limited” to the 10 information that he provided through the online job application and what Defendant learned about 11 Plaintiff by meeting with him in person during the onsite interview, including: Plaintiff’s first name 12 (and thus his Arab ancestry by deduction), Plaintiff’s last name (and thus his religion by deduction), 13 Plaintiff’s long beard (and thus his religiousness by deduction), Plaintiff’s disability, and Plaintiff’s 14 qualifications. Id. ¶ 32. 15 Based on these experiences, Plaintiff claims that Defendant violated Cal. Gov’t Code Section 16 12940 by (1) denying him employment and (2) harassing him, due to his religious creed, national 17 origin, ancestry, and disability. FAC ¶¶ 36-37. Plaintiff claims that he obtained right-to-sue notices 18 on both claims from the Department of Fair Employment and Housing (“DFEH”) on March 3, 2018. 19 Id. Plaintiff alleges that Microchip “intentionally wanted to deny [him] an opportunity for 20 employment despite the fact that [he is] qualified.” Id. ¶ 35. According to Plaintiff, “Defendant 21 discriminated because the Defendant is revolted by people of [his] religion, national origin, ancestry, 22 ethnic characteristics and disability, and especially those with a combination of all of the above.” 23 Id. 24 On February 28, 2019, Plaintiff filed suit against Microchip in the Superior Court of 25 California for the County of Santa Clara. See Compl., ECF 1-1. On May 28, 2019, Microchip 26 removed this case on the basis of diversity of citizenship. ECF 1. On June 4, 2019, Defendant filed 27 a motion to dismiss Plaintiff’s Complaint. ECF 9. On November 1, 2019, the Court granted 1 Defendant’s motion to dismiss with respect to the discrimination claim because the Complaint (1) 2 lacked any factual allegations to establish that Plaintiff was qualified for the positions he applied 3 for, and (2) was devoid of any facts from which one can infer that Microchip/Microsemi did not hire 4 him because he was a member of a protected class. ECF 21 at 5. Further, the Court granted 5 Defendant’s motion to dismiss with respect to the harassment claim because Plaintiff failed to allege 6 facts suggesting that “Plaintiff was subjected to any unwanted behavior by Microchip/Microsemi— 7 let alone severe or pervasive harassment.” Id. at 6. Additionally, the Court ordered Plaintiff to file 8 with the Court the right-to-sue notice he filed with the DFEH. Id. at 6-7. The Court gave Plaintiff 9 leave to amend to cure the deficiencies in his Complaint. Id. at 7. On December 16, 2019, Plaintiff 10 filed a first amended complaint (ECF 22) along with the right-to-sue notice he filed with DFEH 11 (ECF 22-1). 12 II. LEGAL STANDARD 13 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 14 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force 15 v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 16 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all 17 well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese 18 v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not 19 “accept as true allegations that contradict matters properly subject to judicial notice” or “allegations 20 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 21 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 22 omitted). While a complaint need not contain detailed factual allegations, it “must contain sufficient 23 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 24 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 25 claim is facially plausible when it “allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged.” Id. 27 “A pro se complaint must be liberally construed, since a pro se complaint, however inartfully 1 v. Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017) (internal quotation marks and citation omitted). 2 III. DISCUSSION 3 A. FEHA-Based Discrimination Claim 4 Defendant seeks dismissal of Plaintiff’s discrimination claim because “[t]he [FAC] fails to 5 allege any facts that might permit an inference that Defendant did not hire him because of an 6 unlawful discriminatory motive.” Mot. at 6. Defendant argues that Plaintiff’s conclusory 7 allegations that Defendant is “revolted” by people in Plaintiff’s protected class (i.e., his religion, 8 national origin, ancestry, ethnic characteristics and disability, or a combination of all of the above) 9 are insufficient to state a claim for discrimination. Mot. at 7; see also FAC ¶ 35. Plaintiff responds 10 that Defendant is required to “bring forth any nondiscriminatory information” about Plaintiff that 11 caused Defendant not to hire him. Opp’n ¶ 3. Plaintiff appears to allege that because Defendant 12 had no information about Plaintiff other than what he provided—in his job application and his onsite 13 interview—and because he is “clearly qualified” for the position he applied for, Defendant must 14 have declined to hire him for discriminatory reasons. See FAC ¶ 32, 33. Specifically, Plaintiff 15 alleges:

16 [T]he set of possible reasons the Defendant has for denying me employment is (effectively) limited to the following: My first name 17 (and thus my Arab ancestry by deduction), my last name (and thus my religion by deduction), my long beard (and thus my religiousness by 18 deduction), my disability, and my qualifications. 19 FAC ¶ 32. 20 Plaintiff’s conclusory allegations do not establish a plausible claim for discrimination. 21 Under FEHA, in the absence of direct or circumstantial evidence of discriminatory intent, as here, 22 Plaintiff must establish a disparate treatment discrimination case using the framework outlined in 23 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Zeinali v. Raytheon Co., 636 24 F.3d 544, 552 (9th Cir. 2011) (applying McDonnell Douglas framework to FEHA claim). If Plaintiff 25 establishes a prima facie case, the burden shifts to Defendant to articulate a legitimate, non- 26 discriminatory reason for its action. Id. If Defendant articulates a legitimate, non-discriminatory 27 reason, the burden shifts back to Plaintiff to demonstrate that the employer’s stated reason was a 1 adequately allege facts supporting a prima facie showing of unlawful discrimination. 2 “[T]he precise requirements of a prima facie case can vary depending on the context and 3 were ‘never intended to be rigid, mechanized, or ritualistic.’” Swierkiewicz v. Sorema N.A., 535 4 U.S. 506, 512 (2002) (citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Generally, 5 in order to establish a prima facie case of discrimination, Plaintiff must show that: (1) he is a member 6 of a protected class; (2) he was qualified for the position(s) for which he applied; (3) he experienced 7 an adverse employment action; and (4) similarly situated individuals outside of his protected class 8 were “treated more favorably, or other circumstances surrounding the adverse employment action 9 give rise to an inference of discrimination.” Hawn v. Executive Jet Mgmt., Inc., 615 F.3d 1151, 10 1156 (9th Cir. 2010) (citing Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). 11 Similarly, to state a claim for disability discrimination, plaintiff must allege that (1) he suffers from 12 a qualifying disability; (2) was qualified for the job, i.e., able to perform its essential functions with 13 reasonable accommodation; and (3) was subjected to an adverse employment action (4) because of 14 his disability. Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997). 15 There is no dispute that Plaintiff has sufficiently pleaded that he is a member of more than 16 one protected class based on his race, ethnic background, religion, and disability. There is also no 17 dispute that Plaintiff experienced an adverse employment action – i.e., he was denied a job. In the 18 FAC, Plaintiff also alleges sufficient facts that, when taken as true, establish that he was qualified 19 for one of the positions he applied for – i.e., Senior Firmware Design Engineer Position (requisition 20 number 5244). See FAC ¶¶ 23-24, 33. Thus, the only issue before the Court as to the discrimination 21 claim, is whether Plaintiff properly alleges facts establishing a plausible claim for the fourth 22 element: that similarly situated individuals outside of his protected class “were treated more 23 favorably, or other circumstances surrounding the adverse employment action give rise to an 24 inference of discrimination.” See Hawn, 615 F.3d at 1156. For the reasons below, the Court holds 25 that he does not. 26 Defendant argues that “[b]y not pleading facts that would support a reasonable inference that 27 Defendant treated applicants outside his protected classes more favorably, the Complaint fails to 1 to allege any facts whatsoever supporting a plausible inference “that, after his rejection, the position 2 remained open and the employer continued to seek applicants from persons of complainant’s 3 qualifications.” McDonnel Douglas Corp., 411 U.S. at 802 (establishing the elements for prima 4 facie case of racial discrimination where plaintiff was denied employment). Courts routinely hold 5 that a prima facie case of discrimination under FEHA fails where the employee plaintiffs fail to 6 allege facts that similarly situated employees outside of plaintiffs’ protected class were treated more 7 favorably. See Abdul-Haqq v. Kaiser Emergency in San Leandro, No. 16-CV-05454-PJH, 2017 8 WL 1549480, at *3 (N.D. Cal. May 1, 2017) (granting motion to dismiss FEHA-based 9 discrimination claim without leave to amend where plaintiff failed to plausibly allege “that African- 10 American nurses were treated less favorably than similarly-situated nurses”); Ali v. Intel Corp., No. 11 18-cv-03981-LHK, 2019 WL 1369926, at *4 (N.D. Cal. March 25, 2019) (granting motion to 12 dismiss FEHA-based discrimination claim with prejudice where “the FAC only [made] conclusory 13 allegations” of racial discrimination); Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) 14 (affirming district court grant of summary judgment where plaintiff “failed to establish a prima facie 15 case of discrimination because he could not provide evidence that similarly situated employees were 16 treated more favorably that Leong was treated.”). Here, Plaintiff does not allege that the positions 17 he applied for remained open or that the employer continued to seek applications from persons of 18 Plaintiff’s qualifications. To the contrary, Plaintiff alleges that he “received responses that the 19 positions [he] applied to have been cancelled.” FAC ¶ 30. 20 Moreover, Plaintiff has failed to allege facts supporting a plausible claim that “other 21 circumstances surrounding the adverse employment action that would give rise to an inference of 22 discrimination.” Hawn, 615 F.3d at 1156 (citing Peterson, 358 F.3d at 603). In other words, 23 Plaintiff fails to allege facts supporting a claim that he was denied employment because of his 24 religious creed, national origin, ancestry, and disability. See Abdul-Haqq, 2017 WL 1549480, at *8 25 (“[I]t is nowhere plausibly alleged that these actions were taken by defendants because of Abdul- 26 Haqq’s PTSD.”). Plaintiff simply alleges that he is “clearly qualified” for the Senior Firmware 27 Design Engineer position and that his “interview experiences were positive.” FAC ¶ 33. From 1 are “illegal.” Id. ¶ 34. Plaintiff also alleges that Defendant is revolted by people of [his] religion, 2 national origin, ancestry, ethnic characteristics and disability, and especially those with a 3 combination of all of the above.” Id. ¶ 35. Such conclusory allegations do not satisfy the pleading 4 requirement. Iqbal, 556 U.S. at 678-79 (“Rule 8 . . . does not unlock the doors of discovery for a 5 plaintiff armed with nothing more than conclusions.”); see also Ali, 2019 WL 1369926, at *4-5 6 (dismissing FEHA-based discrimination claims of a job applicant because the complaint made only 7 conclusory allegations such as “[t]he Plaintiff is Pakistan [sic] and was not hired because of his ethic 8 [sic] race,” and “[d]efendant’s perception of the Plaintiff’s race as a Pakistan [sic] was negative and 9 therefore, they refused to hire him”). “A claim has facial plausibility when the plaintiff pleads 10 factual content that allows the court to draw the reasonable inference that the defendant is liable for 11 the misconduct alleged.” Iqbal, 566 U.S. at 678. Plaintiff’s discrimination claim is not plausible 12 because it is not supported by facts. 13 Accordingly, the Court concludes that the FAC fails to state a FEHA-based discrimination 14 claim upon which relief may be granted. 15 B. FEHA-Based Harassment Claim 16 Similarly, Plaintiff does not please a plausible harassment claim. The FEHA makes it 17 unlawful for an employer to harass an employee for being a member of a protected group. Cal. Gov. 18 Code § 12940(j). The elements for a harassment claim under FEHA are: “(1) the claimant belonged 19 to a protected group; (2) the claimant was subjected to unwelcome harassment because of being a 20 member of that group; and (3) the harassment was sufficiently severe or pervasive to alter the 21 conditions of employment and create an abusive working environment.” Landucci v. State Farm 22 Ins. Co., 65 F. Supp. 3d 694, 703 (N.D. Cal. 2014). To fulfill the “severe or pervasive” prong, a 23 plaintiff must show a “concerted pattern of harassment of a repeated, routine, or generalized nature.” 24 Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 133 (1999). FEHA “forbids only behavior so 25 objectively offensive as to . . . create a hostile or abusive work environment.” Landucci, 65 F. Supp. 26 3d at 704. 27 It is undisputed that Plaintiff belongs to at least one protected group. As for the remaining 1 infer that he experienced unwelcome conduct or comments, based on one or more of his protected 2 classes, and the comments or conduct was sufficiently pervasive or sever to constitute harassment 3 under FEHA.” Mot. at 8. 4 The Court finds that Plaintiff has failed to allege any facts to establish a plausible claim for 5 harassment. In his opposition, Plaintiff maintains that Defendant harassed him “through repeatedly 6 cancelling meetings and delaying them extensively.” Opp’n ¶ 2. Defendant responds that Plaintiff’s 7 interactions with Defendant (the phone and onsite interview) do not amount to harassment under 8 FEHA, especially since Plaintiff claims the interactions were “positive” experiences. Reply at 3 9 (citing Compl. ¶¶ 26-28), ECF 29. The Court agrees with Defendant. Plaintiff’s only factual 10 allegations with respect to the harassment claim are that Defendant cancelled positions for which he 11 applied, and cancelled two interviews and delayed one by several hours. Opp’n ¶ 1; FAC ¶ 26-30. 12 Plaintiff claims that the “repetitive intentional cancelling of scheduled appointments and positions 13 constitutes a form of harassment and uncivilized ridicule.” FAC ¶ 31. The cancellations of positions 14 and interviews, although annoying and inconvenient, do not amount to harassment in violation of 15 FEHA. In fact, Plaintiff characterizes his interviews with Defendant as “positive experiences” and 16 concedes that “Defendant did not make any discriminatory comments to [him]” – which do not 17 support a claim for harassment. See FAC ¶¶ 26, 28, Opp’n ¶ 1; see also Lyle v. Warner Bros. 18 Television Prods., 38 Cal. 4th 264, 283, 132 P.3d 211, 223 (2006) (“[A]nnoying or ‘merely 19 offensive’ comments in the workplace are not actionable[.]”). Thus, Plaintiff fails to allege facts 20 that establish he was subject to any form of harassment (let alone severe or pervasive harassment) 21 because he is a member of a protected group. 22 Accordingly, the Court concludes that the FAC fails to state a FEHA harassment claim upon 23 which relief may be granted. 24 C. Leave to Amend 25 When a court determines that a complaint should be dismissed, it must then decide whether 26 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 27 “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule 1 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks 2 || omitted). When dismissing a complaint for failure to state a claim, “a district court should grant 3 leave to amend even if no request to amend the pleading was made, unless it determines that the 4 || pleading could not possibly be cured by the allegation of other facts.” /d. at 1130 (internal quotation 5 marks omitted). Accordingly, leave to amend generally shall be denied only if allowing amendment 6 || would unduly prejudice the opposing party, cause undue delay, or be futile, or if the moving party 7 has acted in bad faith. Leadsinger, Inc. vy. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). 8 The Court finds that granting leave to amend would be futile and unduly prejudicial to 9 Defendant. Leadsinger, Inc., 512 F.3d at 532. In its November 1, 2019 Order, the Court dismissed 10 Plaintiff’s discrimination and harassment claims. ECF 21. In that Order, the Court warned that 11 “failure to cure the deficiencies identified in this order will result in a dismissal of Plaintiffs claims 12 || with prejudice.” Jd. While Plaintiff cured some of the deficiencies noted by the Court (e.g., 13 requirements of the job he applied for), Plaintiff failed to cure other deficiencies as noted in this 14 || order. Because any amendment would be futile, and it would be unduly prejudicial to Defendant to 15 litigate a third motion to dismiss regarding the same deficiencies, leave to amend is DENIED. 16 || IV. ORDER 3 17 For the foregoing reasons, Defendant’s motion to dismiss at ECF 23 is GRANTED S 18 || WITHOUT LEAVE TO AMEND. 19 20 IT IS SO ORDERED. hem Ll herman 22 || Dated: April 10, 2020 23 BETH LABSON FREEMAN 24 United States District Judge 25 26 27 28