Kohli v. CITY AND COUNTY OF SAN FRANCISCO

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAJ KOHLI, Case No. 25-cv-00432-JST

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS

10 CITY AND COUNTY OF SAN Re: ECF No. 26 FRANCISCO, 11 Defendant.

12 13 Before the Court is a motion to dismiss brought by Defendant City and County of San 14 Francisco (“the City”). ECF No. 26. The Court will grant the motion. 15 I. BACKGROUND 16 Plaintiff Raj Kohli, a former employee of the City, sued the City in state court for 17 employment discrimination. The City removed the case to this Court after Kohli filed his second 18 amended complaint, which alleged a federal claim for the first time. The Court granted the City’s 19 motion to dismiss Kohli’s state law claims for failure to prevent harassment, hostile work 20 environment, and discrimination in the form of failure to accommodate a medical condition. ECF 21 No. 21 at 3–6. The Court did not grant leave to amend those claims “because Kohli cannot cure 22 his lack of timeliness in bringing the claims more than one year after he received his right-to-sue 23 notice.” Id. at 7. 24 The Court also dismissed Kohli’s Title VII retaliation claim, but with leave to amend:

25 Finally, Kohli brings a Title VII retaliation claim, alleging that he was terminated “six weeks after filing a discrimination claim against 26 Mark De La Rosa.” ECF No. 1 at 164. Kohli’s opposition states that he “alleges he engaged in protected activity by opposing 27 discriminatory practices based on his physical disability and medical with Disabilities Act (ADA).” ECF No. 8 at 6. However, Title VII 1 prohibits conduct based on “race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), and the Court cannot infer from 2 the allegations in the complaint—which concern only disability— that any of these protected characteristics formed the basis for 3 Kohli’s discrimination claim against De La Rosa. While the ADA does concern disability, Kohli has not asserted a claim under the 4 ADA. Accordingly, the Court dismisses Kohli’s Title VII retaliation claim. Because it is not clear that Kohli cannot allege a sufficient 5 factual basis if given leave to amend, the Court grants such leave. 6 Id. at 6. 7 Kohli timely filed a third amended complaint asserting only a Title VII retaliation claim, 8 ECF No. 23,1 which the City now moves to dismiss, ECF No. 26. He alleges that he was 9 terminated approximately six weeks after filing an “internal complaint against the Head of Audit, 10 Mr. De La Rosa, [which] constituted protected activity under Title VII.” ECF No. 23 ¶¶ 28–29. 11 He further alleges that this “formal internal complaint . . . alleg[ed] discrimination and harassment. 12 This complaint was shared with Ben Rosenfield, the City Controller, who stated in an email to 13 Carlos Benitz that this was a claim of discrimination. Carlos Benitez assured Plaintiff there would 14 be no retaliation and that all claims would be investigated.” Id. ¶ 12. Kohli alleges that he “is of 15 South Asian descent,” id. ¶ 6, but he does not allege any discrimination based on that 16 characteristic. Nor, critically, does he allege that the internal complaint that forms the basis for his 17 retaliation claim was based on race or national origin. 18 Citing Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988), Kohli argues that a 19 plaintiff “need not explicitly cite statutory language as long as the conduct reasonably falls within 20 Title VII protection.” ECF No. 30 at 3. However, that case is unhelpful to Kohli because the 21 court held that “the opposed conduct must fairly fall within the protection of Title VII to sustain a 22 claim of unlawful retaliation.” Learned, 860 F.2d at 932 (emphasis added). The court upheld the 23 district court’s grant of summary judgment to the City of Bellevue on Learned’s Title VII claims, 24 explaining that:

25 Learned did not allege that he ever opposed any discrimination based upon race, color, religion, sex, or national origin. Any 26 retaliation in this case related to Learned’s having filed a claim for 27 1 “excess damages” under state industrial insurance laws and Learned’s opposition to what he believed was discrimination based 2 upon physical and mental limitations only. Learned could not reasonably have believed that Bellevue discriminated against him in 3 violation of Title VII, and therefore, he cannot claim that he was retaliated against for opposing discrimination prohibited by 4 Title VII. . . .

5 The mere fact that an employee is participating in an investigation or proceeding involving charges of some sort of discrimination . . . 6 does not automatically trigger the protection afforded under [Title VII]; the underlying discrimination must be reasonably 7 perceived as discrimination prohibited by Title VII.” 8 Id. 9 Similarly, in this case, Kohli’s allegations reference potential discrimination based on 10 disability, medical condition, or age—none of which falls within Title VII’s protections. E.g., 11 ECF No. 23 ¶¶ 7–10, 16, 19–21. For example, Kohli relies on paragraph 16 of the complaint, 12 which alleges that his “[s]upervisor commented Plaintiff was ‘too slow.’” ECF No. 30 at 4 (citing 13 ECF No. 23 ¶ 16). But that paragraph alleges that the comment was “ageist” and was made “due 14 to [Kohli’s] being the oldest employee on the team.”2 ECF No. 23 ¶ 16. Paragraph 16 also alleges 15 “that Amanda made comments mocking [Kohli’s] medical condition—such as noting he ‘fell 16 asleep in a meeting,’” and that Kohli “had reported his condition of sleep apnea to his manager.” 17 Id. But nothing in the cited paragraph, or anywhere else in the complaint, suggests that any of the 18 alleged conduct was based on Kohli’s being of South Asian descent or on any other characteristic 19 protected under Title VII. Accordingly, Kohli’s third amended complaint still fails to allege a 20 basis for a Title VII retaliation claim. 21 The Court previously identified this specific deficiency in Kohli’s complaint, and Kohli 22 failed to cure it with leave to amend. Although he again requests leave to amend, he presents no 23 additional facts he might allege if such leave were granted. For example, he never argues that his 24 September 2022 internal complaint was based on race or any other characteristic protected under 25 Title VII. 26 A plaintiff’s failure to correct identified deficiencies after having been given leave to 27 1 amend “is a strong indication that [they] have no additional facts to plead” and suggests that the 2 || plaintiff “had made their best case and had been found wanting.” Zucco Partners, LLC vy. 3 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (citation modified). Because Kohli has 4 || already had an opportunity to cure his Title VII retaliation claim and has failed to do so, the Court 5 exercises its “particularly broad” discretion and denies further leave to amend. Salameh v. 6 Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (quoting Sisseton-Wahpeton Sioux Tribe v. 7 United States, 90 F.3d 351, 355 (9th Cir.1996)). 8 CONCLUSION 9 For the above reasons, the City’s motion to dismiss is granted without leave to amend. 10 || The Clerk shall enter judgment and close the file. 11 IT IS SO ORDERED. 12 Dated: October 6, 2025 . .

= 13 JON S. TIGAR' 14 nited States District Judge

18 19 20 21 22 23 24 25 26 27 28