Lenk v. Monolithic Power Systems Incorporated

• Court: District Court, D. Arizona
• Decided: August 6, 2025
• Docket: 2:23-cv-02083
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kenneth Lenk, No. CV-23-02083-PHX-SHD

10 Plaintiff, ORDER

11 v.

12 Monolithic Power Systems Incorporated,

13 Defendant. 14 15 Pending before the Court are (1) Defendant Monolithic Power Systems Inc.’s 16 (“Monolithic”) motion to dismiss Plaintiff Kenneth Lenk’s First Amended Complaint 17 (“FAC”), (Doc. 31), and related request for judicial notice, (Doc. 32); (2) Lenk’s motion 18 for default against Monolithic, (Doc. 42); and (3) Lenk’s motion for leave to amend the 19 FAC, (Doc. 48). For the reasons explained below, the Court grants in part and denies in 20 part Monolithic’s motion to dismiss and grants its request for judicial notice, denies 21 Lenk’s motion for default, and denies Lenk’s motion for leave to amend the FAC to add a 22 defendant.1 23 I. BACKGROUND 24 The parties are familiar with the factual background of this case, (see generally Doc. 25 25 at 1–5), so it is unnecessary to recount it in detail. In short, as recognized previously, 26 “[t]his case is merely the latest entry in a long-running litigation saga that commenced in 27 2015.” (Id. at 1.) See Lenk v. Monolithic Power Sys. Inc., No. 15-cv-01148-NC, 2015 WL

28 1 The parties did not request oral argument, so the Court decides these motions without holding a hearing. See LRCiv 7.2(f). 1 6152475 (N.D. Cal. 2015), 2015 WL 7429498 (N.D. Cal. 2015), 2016 WL 1258862 (N.D. 2 Cal. 2016) (“Lenk I”); Lenk v. Monolithic Power Sys. Inc., No. 16-cv-02625-BLF, 2017 3 WL 2491597 (N.D. Cal. 2017), 2017 WL 1832198 (N.D. Cal. 2017) (“Lenk II”); Lenk v. 4 Monolithic Power Sys. Inc., No. 19-cv-03791-BLF, 2020 WL 619846 (N.D. Cal. 2020) 5 (“Lenk III”); Lenk v. Monolithic Power Sys., Inc., No. 20-cv-08094-BLF, 2021 WL 6 5233078 (N.D. Cal. 2021) (“Lenk IV”). In his previous cases, Lenk generally alleged that 7 Monolithic, his former employer, discriminated against him, harassed him, subjected him 8 to adverse employment actions, constructively discharged him, and prevented him from 9 obtaining other employment. (See Doc. 25 at 2.) The courts in Lenk II–IV ultimately 10 dismissed those suits largely under the doctrines of claim and issue preclusion. (See id. at 11 2–5.) 12 Lenk filed the instant case (“Lenk V”) in October 2023. (Doc. 1.) His “90-page 13 Complaint recapitulate[d] all of the facts that he [had] already presented to the courts in 14 Lenk I–IV, focusing heavily on the constructive discharge, retaliation, harassment, and 15 blacklisting that [Lenk] believes he has suffered and continues to suffer at the hands of 16 [Monolithic].” (Doc. 25 at 5.) Monolithic’s motion to dismiss the Complaint was granted 17 because Lenk was “collaterally estopped under the doctrine of issue preclusion from 18 reasserting the same facts that undergirded his unsuccessful lawsuits in Lenk IV.” (Id. at 19 9.) This, “standing alone[,] merit[ed] dismissal,” because Lenk’s “various claims [were] 20 thoroughly entangled with the issues that [were] subject to preclusion by virtue of Lenk 21 IV,” such that “the precluded issues upon which [Lenk] relie[d]” could not be disaggregated 22 “from those that might not be precluded.” (Id.) 23 Lenk, however, had “allege[d] new facts that might provide sufficient independent 24 support for his claims such that portions of the Complaint might withstand [Monolithic’s] 25 Motion to Dismiss.” (Id. at 10.) These allegations included that “Halo Semiconductor, 26 SiTime, Infineon, Microchip, and Renesas” did not hire him “and that the interviewers at 27 each of those companies pursued a line of questioning that indicated they had conferred 28 with [Monolithic] beforehand.” (Id.) Lenk had not “adequately connect[ed] the dots,” 1 though.” (Id. at 10–11.) 2 Nevertheless, the Court “indulge[d] the assumption that [Lenk] failed to adequately 3 allege his claims not because he [had] no claim to allege, but instead because he became 4 caught up in portraying the narrative as a continuing course of conduct going back to 2012.” 5 (Id. at 11.) Thus, because a “few of [Lenk’s] claims might have merit, and in light of [his] 6 status as a pro se litigant,” Lenk’s Complaint was dismissed with leave to amend. (Id.) 7 But because Lenk was warned that “his amended complaint (1) must not allege any facts 8 or claims predicated thereon already rejected in Lenk I–IV and (2) must comply with Rule 9 8(a).” (Id. at 11–12.) Lenk was informed that any failure to comply with the Order would 10 “result in dismissal of [Lenk’s] amended pleading and the possible imposition of sanctions, 11 including but not limited to an order to pay attorney fees and a formal declaration that 12 [Lenk] is a vexatious litigant.” (Id. at 12.) 13 On October 3, 2024, Lenk filed the FAC. (Doc. 26.) The FAC asserted the same 14 fifteen claims that were dismissed. (Compare Doc. 25 at 5, with Doc. 26 at 13–28.) 15 On October 24, 2024, Monolithic filed the instant motion to dismiss the FAC. (Doc. 16 31.) In support, Monolithic filed a request for judicial notice. (Doc. 32.) 17 On November 5, 2024, Lenk requested an extension of time to respond to 18 Monolithic’s motion, arguing that Monolithic did not comply with LRCiv 12.1(c), which 19 requires the parties to meet and confer before filing a motion to dismiss. (Doc. 34.) 20 Monolithic’s motion was not struck, because although Monolithic did not comply with 21 LRCiv 12.1(c), “striking [the] motion to dismiss would be an inapt remedy” because it was 22 “clear from the record that a curative amendment is not possible in this particular case.” 23 (Doc. 35 at 1.) Instead, Monolithic was required to meet and confer with Lenk “regarding 24 the issues identified in its Motion to Dismiss and the possibility of a curative amendment 25 relating to those issues” and file either a certificate of consultation (the “Certificate”) in its 26 reply brief or as a standalone notice. (Id. at 2.) On November 15, 2024, Monolithic filed 27 the Certificate. (Doc. 36.) 28 On November 14, 2024, Lenk filed his response to the motion to dismiss. (Doc. 1 37.) On November 22, 2024, Monolithic filed its reply. (Doc. 38.) 2 On November 25, 2024, Lenk filed a response in opposition to the Certificate. (Doc. 3 39.) On December 2, 2024, Monolithic filed a reply in support of the Certificate. (Doc. 4 40.) 5 On December 9, 2024, Lenk filed a motion for default against Monolithic, arguing 6 that because Monolithic did not file the Certificate with its motion to dismiss, Monolithic’s 7 motion did not constitute a valid response to the FAC, and default was proper. (Doc. 42 at 8 2–3.) On December 13, 2024, Monolithic filed a response, (Doc. 43), and on December 9 20, 2024, Lenk filed a reply, (Doc. 44). 10 On February 24, 2024, Monolithic filed its disclosure statement identifying 11 BlackRock, Inc., (“BlackRock”) as owning 10% or more of Monolithic’s stock. (Doc. 47 12 at 2.) Then, on April 24, 2024, Lenk moved for leave to amend the FAC to add BlackRock 13 as a defendant. (Doc. 48.) This motion is now fully briefed. (Doc. 49 (response); Doc. 50 14 (reply); Doc. 52 (sur-reply).)2 15 II. MOTION FOR DEFAULT 16 Lenk’s motion for default will be considered first because he argues Monolithic’s 17 motion to dismiss cannot be considered and Monolithic must be defaulted for failing to 18 respond to the FAC. (Doc. 42 at 2–3.) For the following reasons, Lenk’s motion is denied. 19 A. Legal Standard 20 Under Rule 55, “[w]hen a party against whom a judgment for affirmative relief is 21 sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 22 otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). This Court’s 23 Local Rules provide that “[n]o motion to dismiss for failure to state a claim . . . will be 24 considered or decided unless the moving party includes a certification that, before filing 25 the motion, the movant notified the opposing party of the issues asserted in the motion” 26 through personal consultation and the “parties were unable to agree that the pleading was 27 curable in any part by a permissible amendment offered by the pleading party.” LRCiv

28 2 On June 13, 2025, Lenk also filed a “sur-sur-reply” without authorization from the Court. (Doc. 53.) 1 12.1(c). Any motion that “does not contain the required certification may be stricken 2 summarily.” Id. 3 B. Discussion 4 It is undisputed that Monolithic did not comply with LRCiv 12.1(c). (See Doc. 35 5 at 1.) This rule required Monolithic to meet and confer with Lenk before filing its motion 6 to dismiss, yet it did not do so. (See Doc. 36 at 1.) Accordingly, Monolithic’s motion 7 could be struck for failure to comply. See LRCiv 12.1(c). But the Court already declined 8 to do so. (Doc. 35.) 9 That said, it is not clear that Monolithic complied with the previous Order requiring 10 it to meet and confer with Lenk on the issues in the motion to dismiss. (Id. at 2.) Monolithic 11 proffered its November 5, 2024, email exchange with Lenk that pre-dated the previous 12 Order, (Doc. 36), but the Order required a new meet-and-confer between the parties. (Doc. 13 35 at 2.) 14 Striking Monolithic’s motion is not warranted, however. Although LRCiv 12.1(c) 15 is mandatory as the previous Order noted, (Doc. 35 at 1), in this instance only, Monolithic’s 16 noncompliance is excused, given the unique circumstances of this case. See LRCiv 83.6 17 (“[A]ny Judge of this Court may suspend any of these Local Rules for good cause shown.”). 18 This case has been pending since October 2023, the parties and the Court have already 19 proceeded through one round of motion-to-dismiss briefing, and proceedings should not 20 be delayed any further by requiring new briefing. Additionally, Lenk has not suggested 21 any amendments he would have made to the FAC if Monolithic had complied. See Wine 22 Educ. Council v. Ariz. Rangers, 2020 WL 7352632, at *9 (D. Ariz. 2020) (declining to 23 strike motion to dismiss for failure to comply with LRCiv 12.1(c) where the movant 24 “offered to withdraw the motion if . . . any deficiencies could be cured by amendment” and 25 the non-movant “declined”). Good cause exists to consider Monolithic’s motion, LRCiv 26 83.6, as it will further the “just, speedy, and inexpensive determination of” this case, Fed. 27 R. Civ. P. 1. See Hoffard v. County of Cochise, 2021 WL 2685637, at *1 n.2 (D. Ariz. 28 2021) (considering a motion to dismiss on the merits, even after noncompliance with 1 LRCiv 12.1(c), “in the interest of judicial economy”). 2 Because Monolithic’s motion is not stricken and it is undisputed that the motion was 3 timely filed, (see Docs. 30, 31), the motion is a valid response to the FAC. Accordingly, 4 default is not proper and Lenk’s motion for entry of default is denied. 5 III. MOTION TO DISMISS THE FAC 6 Monolithic argues the FAC has not cured the deficiencies raised in the Order 7 dismissing Lenk’s first Complaint and, in fact, “violates both of the Court’s admonitions” 8 from the Order. (Doc. 31 at 2–3.) Specifically, Monolithic argues the 9 “retaliation/whistleblower claims are predicated on [Lenk’s] allegations of [Monolithic’s] 10 conduct during his one-year employment . . . and on his filing of the meritless Lenk I–IV 11 cases that were dismissed with prejudice” and, if there is any new material, “it contains 12 nothing more than pure speculation about his inability to obtain employment in 2021- 13 2022.” (Id. at 3.) Furthermore, “even assuming Lenk could get past his pleading hurdles, 14 he has failed to exhaust administrative remedies and some of his claims are time barred.” 15 (Id. at 4.) 16 A. Legal Standard 17 The Court liberally construes the pleadings of pro se plaintiffs. Draper v. Rosario, 18 836 F.3d 1072, 1089 (9th Cir. 2016). “To survive a motion to dismiss, a complaint must 19 contain sufficient factual matter, accepted as true” and construed in a light most favorable 20 to the plaintiff, “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (quotation marks omitted). A claim is plausible if the plaintiff 22 pleads “factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Id. In making this determination, the Court 24 does not accept legal conclusions as true, nor does the Court consider “[t]hreadbare recitals 25 of the elements of a cause of action, supported by mere conclusory statements.” Id.; see 26 also id. (“Nor does a complaint suffice if it tenders naked assertion[s] devoid of further 27 factual enhancement.” (alteration in original) (quotation marks omitted)). That said, “a 28 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 1 allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (emphasis added). A 2 “well-pleaded complaint may proceed even if” actual proof of those facts “is improbable[] 3 and . . . a recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted). 4 B. Discussion 5 1. Request for Judicial Notice 6 Monolithic’s request for judicial notice of certain documents will be addressed 7 before the merits of Monolithic’s motion to dismiss. (Doc. 32.) Monolithic requests 8 judicial notice of the following: (1) Lenk’s October 2022 charge filed with the Arizona 9 Civil Rights Division (the “CRD”), (2) the July 2023 notice of right to sue from the CRD, 10 (3) Lenk’s October 2023 amended charge filed with the CRD, (4) the CRD’s October 2023 11 dismissal notice, (5) Lenk’s November 2023 EEOC charge withdrawal notice, and (6) two 12 orders from Lenk IV. (Id. at 1–2.) Lenk did not oppose Monolithic’s request or dispute 13 any document’s authenticity. 14 Monolithic’s request to take judicial notice of the requested documents is granted. 15 See, e.g., Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (stating courts “may take 16 notice of proceedings in other courts, both within and without the federal judicial system, 17 if those proceedings have a direct relation to matters at issue” (citation omitted)); Doria v. 18 Yelp Inc., 2024 WL 1740015, at *3 (D. Ariz. 2024) (taking judicial notice of documents 19 filed with the CRD and right-to-sue letter from the EEOC and collecting cases in which 20 courts took judicial notice of EEOC filings). 21 2. Hiring Discrimination Claims 22 Lenk’s first five causes of action relate to his allegations that Monolithic 23 discriminated against him based on his age and his race in declining to hire him for several 24 positions between 2021 and 2022. (See Doc. 26 ¶¶ 59–71 (Age Discrimination in 25 Employment Act (“ADEA”) claims), 72–76 (California Fair Employment and Housing Act 26 (“FEHA”) discrimination claim), 77–82 (Arizona Civil Rights Act (“ACRA”) 27 discrimination claim), 83–91 (Washington Law Against Discrimination (“WLAD”) 28 1 discrimination claim).)3 Monolithic argues these claims should be dismissed because Lenk 2 has not sufficiently pled that Monolithic’s decision to not hire him was based on a 3 discriminatory reason. (Doc. 31 at 8–9.) 4 a. Race Discrimination Claims (ACRA and WLAD) 5 Monolithic contends “Lenk did not list either his race or ethnicity on [his] job 6 application,” and there is “nothing to suggest that . . . people who knew Lenk were involved 7 in the decision” not to hire him. (Id. at 9.) Lenk responds that Monolithic would be 8 unlikely to forget him considering Monolithic “spent more than nine years . . . and more 9 than $840,000” litigating against him. (Doc. 37 at 5 (emphasis and quotation marks 10 omitted).)4 11 Monolithic is correct that Lenk has not pled sufficient facts to support an inference 12 that Monolithic declined to hire him because of his race. A “plaintiff must prove intentional 13 discrimination to make out a discrimination claim using a disparate treatment theory.” 14 Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987); see also Bodett v. CoxCom, Inc., 15 366 F.3d 736, 742 (9th Cir. 2004) (“[T]he Arizona Civil Rights Act is generally identical 16 to Title VII, and therefore federal Title VII case law [is] persuasive in the interpretation of 17 [the Arizona] Civil Rights Act.” (second and third alterations in original) (quotation marks 18 omitted)); Hedenburg v. Aramark Am. Food Servs., Inc., 476 F. Supp. 2d 1199, 1208 n.6 19 (W.D. Wash. 2007) (“In interpreting the WLAD, Washington courts rely upon cases 20 interpreting Title VII.”); cf. Peña v. Clark County, 2023 WL 5822421, at *5 (W.D. Wash. 21 2023) (noting, however, that the WLAD “directs that its provisions shall be construed 22 liberally” (quotation marks omitted)). Accordingly, an “employer cannot intentionally 23 discriminate against a job applicant based on race unless the employer knows the 24 applicant’s race.” Robinson, 847 F.2d at 1316. 25 As one application shows, Lenk did not identify his race or ethnicity, (Doc. 26 at 26 34–35.), nor does Lenk allege he identified his race or ethnicity in any subsequent

27 3 Lenk’s FEHA claims will be addressed in a separate section of this Order. 4 Lenk attached several exhibits to his response, (Doc. 37 at 19–27), which may not 28 be considered because they were not included in the FAC and are not subject to judicial notice. See Gibson v. Cmty. Dev. Partners, 2022 WL 10481324, at *3 n.7 (D. Or. 2022). 1 application, (see id. ¶¶ 9–17). Although Lenk argues Monolithic is “certainly not going to 2 forget” him and his race given their litigation history, (Doc. 37 at 5), it is conjecture to 3 assume that this played a role in Monolithic’s hiring application process. Accepting Lenk’s 4 argument would require speculation—without any factual support—that whoever or 5 whatever5 reviewed his application knew him from his one year of employment with 6 Monolithic almost a decade ago, (Doc. 26 at 37), or knew of his litigation history with 7 Monolithic; independently knew his race; and decided not to hire him because of it. Cf. 8 Ali v. ServiceNow, Inc., 2019 WL 11542365, at *4 (N.D. Cal. 2019) (dismissing claims of 9 race discrimination where the plaintiff did not allege that the “hiring managers and 10 interviewers” who allegedly only hired individuals of a certain race “were involved in the 11 decision-making process for the positions to which he applied” and because he had not 12 alleged “anyone at [the employer] was actually aware of his national origin, race, religion, 13 or age,” noting that the argument that the employer “deduced his religion from his last 14 name and deduced his national origin from an entry on his resume [was] speculative”).6 15 Although all reasonable inferences must be made in Lenk’s favor, the logical leaps 16 necessary to bridge Lenk’s pled facts to an inference of discrimination are not reasonable. 17 See, e.g., Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 145 S. Ct. 1556, 18 1565 (2025) (“Plausibly does not mean probably, but it asks for more than a sheer 19 possibility that a defendant has acted unlawfully.” (quotation marks omitted)); Khoja v. 20 Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018) (“[T]he court [is not]

21 5 Lenk suggests that Monolithic employs artificial intelligence to screen applicants. (Doc. 26 ¶ 75; id. at 62 (warning Lenk in application process that Monolithic “may use an 22 artificial intelligence algorithm to provide an initial comparison of an applicant’s education, experience, and skills . . . . [to] produce[] a Profile Relevancy score, which is 23 intended to be one of many factors that a potential employer will review in making its interview decisions”).) 24 6 At times, the FAC suggests that, merely because Monolithic employs many Asians, Monolithic de facto discriminates against non-Asians. (See Doc. 26 ¶ 39 (“[Monolithic’s] 25 US Asian employment occurs at 10 times the rate of [Bureau of Labor Statistics] employment . . . These significant statistical deviations support prima facie discrimination; 26 further supported by . . . photos [in a report] . . . indicating the demographics they seek.” (citation and emphasis omitted).) “[I]t is not self-evident that decision-makers who 27 happened to be [Asian], by virtue of their status as such, would discriminate against [Lenk] based on his race . . . and the [FAC] fails to allege factual allegations explaining [his] 28 premise.” See Ali, 2019 WL 11542365, at *4. These allegations are thus speculative as well. See id. 1 required to accept as true allegations that are merely conclusory, unwarranted deductions 2 of fact, or unreasonable inferences.” (alterations in original) (citation omitted)); Eggleston 3 v. Klemp, 2007 WL 1468686, at *4 (D. Idaho 2007) (“[A]n inference based on speculation 4 and conjecture is not reasonable.” (citation omitted)). 5 Because there are not sufficient facts pled in the FAC to infer Monolithic’s hiring 6 decision discriminated on the basis of race, these theories are dismissed in the 7 ACRA/WLAD claims.7 Cf. Hunter-Rainey v. N.C. State Univ., 2018 WL 1092963, at *3 8 (E.D.N.C. 2018) (granting summary judgment to employer on race discrimination claim 9 where “nothing in the record show[ed] that the decisionmaker (or anyone involved in the 10 process) discriminated against [the plaintiff] because of her race (or anything else)”); White 11 v. Wilson, 2018 WL 6175385, at *4 (C.D. Cal. 2018) (holding a plaintiff could not establish 12 a prima facie case of disparate treatment under Title VII where the “selecting official [did 13 not know] of Plaintiff’s race . . . at the time of the selection”). Lenk is not granted leave 14 to amend this theory of his ACRA and WLAD claims for the reasons addressed later in 15 this Order. 16 To the extent Lenk asserts a disparate impact theory of race discrimination8 in his 17 ACRA and WLAD claims, he has failed to allege sufficient facts to state a claim. To 18 establish a “prima facie case of employment discrimination using a disparate impact 19 theory,” a plaintiff must “show that a business practice, neutral on its face, had a 20 substantial, adverse impact on some [protected] group,” typically using “statistical 21 evidence showing that an employment practice selects members of a protected class in a 22 proportion smaller than their percentage in the pool of actual applicants.” Robinson, 847 23 F.2d at 1317–18. 24 7 Lenk’s ACRA and WLAD claims encompass both race and age discrimination 25 theories. (Doc. 26 ¶¶ 77–86.) Dismissal of the race discrimination theories does not affect the age discrimination theories. 26 8 Lenk’s ACRA/WLAD claims are not separated into distinct disparate impact and disparate treatment theories, unlike his ADEA claims. However, Lenk mentions disparate 27 impact in his response in connection with his race discrimination claims. (Doc. 37 at 6.) Further, the ACRA and the WLAD recognize both theories. Kumar v. Gate Gourmet Inc., 28 325 P.3d 193, 196–97, 204 (Wash. 2014); Cisneros v. Sears, Roebuck & Co., 660 P.2d 1228, 1229 (Ariz. Ct. App. 1982). 1 Lenk offers statistical evidence from a publicly available report showing the racial 2 makeup of Monolithic’s employees and asserts he was not hired so Monolithic could 3 “achieve [its] . . . race demographics objectives.” (Doc. 26 ¶¶ 20, 36–40.) Construing 4 Lenk’s allegations liberally, a policy to reach a certain number of individuals in various 5 racial groups might be sufficient for a disparate impact theory, cf. Ames v. Ohio Dep’t of 6 Youth Servs., 145 S. Ct. 1540, 1545 (2025) (affirming applicability of Title VII disparate- 7 treatment provision to discrimination against plaintiffs who are members of a majority 8 group), although this result is unclear, particularly on the nonspecific allegations in the 9 FAC, see Smith v. City of Jackson, 544 U.S. 228, 241 (2005) (“[I]t is not enough to simply 10 allege that there is a disparate impact on workers, or point to a generalized policy that leads 11 to such an impact. Rather, the employee is responsible for isolating and identifying the 12 specific employment practices that are allegedly responsible for any observed statistical 13 disparities.” (quotation marks omitted)); Freyd v. Univ. of Or., 990 F.3d 1211, 1224 (9th 14 Cir. 2021) (“Plaintiffs generally cannot attack an overall decisionmaking process in the 15 disparate impact context, but must instead identify the particular element or practice within 16 the process that causes an adverse impact.” (citation omitted)). Compare Am. Fed’n of 17 State, Cnty., & Mun. Emps., AFL-CIO (AFSCME) v. Washington, 770 F.2d 1401, 1406 18 (9th Cir. 1985) (holding compensation system that was the “result of a complex of market 19 forces” did not “constitute a single practice that suffice[d] to support a claim under 20 disparate impact theory”), and Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir. 1999) 21 (“Even in the absence of specific and identified discrimination, nothing in our 22 jurisprudence precludes the use of race-neutral means to improve racial and gender 23 representation.”), with Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1149 (9th Cir. 1982) 24 (noting a specific job requirement that “seem[ed] on its face to have a disparate impact on 25 minority applicants” was sufficient). 26 Another problem is that Lenk has not sufficiently pled causation, i.e., that such a 27 policy caused the alleged disparate impact. See Moussouris v. Microsoft Corp., 2016 WL 28 4472930, at *10 (W.D. Wash. 2016) (dismissing disparate impact claim where the 1 plaintiff’s “allegations that would close [the] logical gap” between the employment 2 practice and the alleged disparate impact “[were] conclusory”). The FAC does not contain 3 any allegations that Monolithic’s Environmental, Social, and Governance (“ESG”) 4 reporting is a factor in its personnel decisions. Cf. Mompoint v. Dep’t of Elementary & 5 Secondary Educ., 2019 WL 1921631, at *3 (D. Mass. 2019) (“Although [the plaintiff] does 6 allege certain statistics regard[ing] the diversity (or lack thereof) . . . , she does not plausibly 7 allege how such statistics reflect the disparate impact of any particular policy or practice 8 or the causal relationship between the two.”). 9 Additionally, the FAC alleges Monolithic reported “more than two-thirds of [its] 10 employees self-identified as non-Caucasian,” (Doc. 26 ¶ 37 (emphasis omitted)), but Lenk 11 does not allege any facts suggesting that Monolithic hires White employees “in a 12 proportion smaller than their percentage in the pool of actual applicants,” see Robinson, 13 847 F.2d at 1318. Put another way, the FAC does not contain any allegations concerning 14 the racial breakdown of Monolithic’s applicant pool, so it cannot be inferred, from Lenk’s 15 cited statistics alone, that Monolithic’s hiring practice is unproportional or potentially 16 discriminatory. Consequently, it cannot be inferred that Monolithic engaged in any 17 business practice that had a “substantial, adverse impact” on members of Lenk’s race, or 18 that any such impact was caused by Monolithic’s alleged demographics goals. See 19 Robinson, 847 F.2d at 1317; see also Moussouris, 2016 WL 4472930, at *10 (“Plaintiffs 20 must allege something more than the conclusory assertion that the facially neutral policy 21 they oppose in fact causes the disparate impact they challenge.”). 22 Accordingly, to the extent Lenk also asserts a disparate impact theory in his ACRA 23 and WLAD claims, it is dismissed. Leave to amend will not be granted, as discussed later 24 in this Order. 25 b. Age Discrimination Claims 26 As for the age discrimination claims under the ADEA, the ACRA, and the WLAD, 27 Monolithic argues that Lenk has not “eliminate[d] an obvious alternative explanation for 28 his failure to get the job—his outdated and insufficient qualifications,” or his lawsuits 1 against Monolithic. (Doc. 31 at 3, 9 (quotation marks omitted); Doc. 38 at 4.)9 Monolithic 2 notes the publicly available worldwide report cited by Lenk actually shows the “number of 3 employees in the 45+ age group [at Monolithic] steadily increased from 2018 through 4 2022, with an additional 31 such employees in 2021 and 73 more in 2022.” (Id.) 5 Lenk responds that holding a gap in an applicant’s resume against the applicant is 6 itself discriminatory against older applicants. (Doc. 37 at 4.) He also argues that 7 Monolithic’s use of graduation data was unlawful and that the requirement to provide 8 graduation data has a disparate impact on older applicants. (Id. at 2–3.) Finally, Lenk 9 points to Monolithic’s “measly 4% . . . hiring of persons age 45 or older,” which he argues 10 is evidence of Monolithic’s discrimination. (Id. at 4.) 11 The ADEA prohibits an employer from “fail[ing] or refus[ing] to hire . . . any 12 individual or otherwise discriminate against any individual . . . because of such individual’s 13 age.” 29 U.S.C. § 623(a)(1). “A litigant can establish a violation of ADEA using either of 14 two related theories”: (1) “he can show disparate treatment—that he suffered intentional 15 discrimination in employment because of his age,” or (2) “he can show an adverse or 16 disparate impact—that facially neutral employment practices in fact treated more harshly 17 employees in the protected age group.” Cotton v. City of Alameda, 812 F.2d 1245, 1247 18 (9th Cir. 1987). The former requires a showing of “intentional discrimination”: the plaintiff 19 must have been “between forty and seventy years of age,” he must have “applied for a 20 position for which he was qualified,” and a “younger person with similar qualifications 21 received the position.” Id. at 1248. “In a disparate treatment case, liability depends on 22 whether the protected trait (under the ADEA, age) actually motivated the employer’s 23 decision.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). The latter requires that 24 the plaintiff “show that a neutral practice had a significant discriminatory impact upon a 25 protected class.” Cotton, 812 F.2d at 1247. In such instances, “statistical evidence usually

26 9 Monolithic’s argument that Lenk’s lawsuits could have been an explanation for why he was not hired seems to support Lenk’s argument that Monolithic knew who he was in 27 resolving his application. (Doc. 31 at 3.) Because counsel’s arguments cannot alter the FAC’s deficiencies discussed above, however, this argument is not discussed further. See 28 Fin. Indem. Co. v. Messick, 606 F. Supp. 3d 996, 1002 (E.D. Cal. 2022) (“New averments in a brief cannot cure a complaint’s shortcomings.”). 1 provides the only rational means of determining whether a facially neutral employment 2 practice had a discriminatory impact.” Id. ACRA and WLAD age discrimination claims 3 are analyzed under the same framework as claims under the ADEA. See, e.g., Knowles v. 4 U.S. Foodservice, Inc., 2010 WL 3614653, at *3 (D. Ariz. 2010) (ACRA); Robinson v. 5 Pierce County, 539 F. Supp. 2d 1316, 1325 (W.D. Wash. 2008) (WLAD). 6 Lenk’s disparate treatment claim is considered first. Although the parties quibble 7 about whether the experience on Lenk’s resume qualified him for the jobs he sought, (Doc. 8 31 at 8; Doc. 37 at 3–5), resolution of these factual issues are not proper on a motion to 9 dismiss, see, e.g., Rat Pack Filmproduktion GMBH v. RatPac Ent., LLC, 2024 WL 10 4452483, at *5 (C.D. Cal. 2024) (“The motion to dismiss stage . . . is not the time to dive 11 into the merits of a claim or make other fact-intensive inquiries.”); Angelucci v. Mayorkas, 12 2021 WL 4523690, at *4 n.7 (S.D. Cal. 2021) (“[F]actual disputes are not meant to be 13 resolved at the motion to dismiss stage.”). Lenk’s allegations that he was qualified for 14 various roles for which he applied, based on previous experience in the same roles, must 15 be accepted as true. (See Doc. 26 ¶¶ 7–11, 15, 20–22.) 16 Monolithic also disputes Lenk’s use of Monolithic’s worldwide employment data, 17 arguing that the metrics show “the 45+ age group steadily increased from 2018 through 18 2022,” and argues that any comparison between its worldwide metrics and the Bureau of 19 Labor Statistics for the United States labor force is “meaningless.” (Doc. 31 at 9.) “A 20 plaintiff may use statistics to show an intent to discriminate.” Pottenger v. Potlatch Corp., 21 329 F.3d 740, 747 (9th Cir. 2003). But regardless of whether the data supports his 22 allegations, Lenk specifically pled that (1) he is over 40 years of age, (2) he applied for 23 several jobs with Monolithic for which he was not hired, (3) he was qualified for those 24 jobs, and (4) younger, less qualified individuals were hired for these roles. (Doc. 26 ¶¶ 6, 25 8–11, 17–19, 22–24.) Monolithic does not challenge any of these allegations. (See 26 generally Doc. 31 at 9–10; Doc. 38 at 4.) Lenk sufficiently pled a disparate treatment claim 27 under the ADEA. See Cotton, 812 F.2d at 1248. 28 Further, although Monolithic argues Lenk’s claim must fail because of an 1 “obvious,” “alternative explanation,” (Doc. 31 at 8–9; Doc. 38 at 4), questions about 2 whether Monolithic had a legitimate, non-discriminatory reason are immaterial at this 3 stage. See Austin v. Univ. of Or., 925 F.3d 1133, 1136–37 (9th Cir. 2019) (stating that the 4 McDonnell Douglas framework is an “evidentiary standard” and is not the appropriate 5 standard at the pleading stage); Palmer v. United States, 794 F.2d 534, 537 (9th Cir. 1986) 6 (the second and third steps of the McDonnell Douglas framework concern whether there 7 exists a non-pretextual, “legitimate, nondiscriminatory reason” for the alleged 8 discriminatory action). At this stage, Lenk need only “state a claim to relief that is plausible 9 on its face.” Iqbal, 556 U.S. at 678 (quotation marks omitted). Even if actual proof of the 10 factual allegations in the FAC is “improbable[] and . . . a recovery is very remote and 11 unlikely,” Twombly, 550 U.S. at 556 (quotation marks omitted), Lenk’s disparate treatment 12 allegations are sufficient to survive dismissal. Because Monolithic does not argue any 13 other basis for dismissal of Lenk’s disparate treatment theories, its motion is denied as to 14 Lenk’s ADEA disparate treatment claim (Count One) and any disparate treatment theory 15 under the ACRA (Count Four) or the WLAD (Count Five) premised on age, if asserted. 16 Considering Lenk’s disparate impact claim, Lenk has stated a plausible claim on its 17 face. Construing the FAC liberally, Lenk alleges that a specific practice by Monolithic— 18 requesting and utilizing graduation data—has a disparate impact on older applicants. (Doc. 19 26 ¶¶ 8, 25; Doc. 37 at 2–3.) Lenk also alleges Monolithic’s practice of using photographs 20 and testimonials on its website “favoring younger age groups”—such as only including 21 photos and testimonials from employees under 40 years of age—and “focus[] on education 22 of younger employees” also results in age discrimination. (Doc. 26 ¶¶ 34–35.) Lenk again 23 cites Monolithic’s public reporting data, which shows a smaller percentage of employees 24 over 45 years of age compared to all other age groups. (Id. ¶¶ 26–33.) 25 Monolithic only disputes whether Lenk’s cited statistics are sufficient to show 26 evidence of discrimination. (Doc. 31 at 9.) Even if Monolithic is correct, this would not 27 necessarily be fatal to Lenk’s disparate impact claim. See Bolden-Hardge v. Off. of Cal. 28 State Controller, 63 F.4th 1215, 1227 (9th Cir. 2023) (stating that “statistics are not strictly 1 necessary” for disparate impact claims under Title VII); Sanford v. Landmark Prot., Inc., 2 2011 WL 1877904, at *5 (N.D. Cal. 2011) (“The analysis of an ADEA claim is the same 3 as the analysis of a Title VII claim.”). Moreover, Monolithic does not address Lenk’s 4 claims that Monolithic’s use of graduation data has a disparate impact on older applicants, 5 nor does it address the images and information contained on its website. 6 Accordingly, Monolithic’s motion is denied as to Lenk’s disparate impact claim 7 under the ADEA and any disparate impact theories under the ACRA and WLAD premised 8 on age, if asserted. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929–30 (9th 9 Cir. 2003) (stating that courts “cannot manufacture arguments for [a party]” but instead 10 “review only issues which are argued specifically and distinctly” because courts “require 11 contentions to be accompanied by reasons” (quotation marks omitted)); Greenwood v. 12 F.A.A, 28 F.3d 971, 977 (9th Cir. 1994) (holding an appellant’s challenge was “waived due 13 to his failure to present a specific, cogent argument for [the court’s] consideration”); Kuhl 14 v. McDonough, 2024 WL 3463350, at *10 (N.D. Cal. 2024) (“Rule 12(b)(6) places the 15 burden of persuasion on the moving party, meaning that the party who files a motion to 16 dismiss must explain why dismissal is warranted.”). 17 3. FEHA Claims 18 Monolithic next argues Lenk’s FEHA claims should be dismissed for lack of 19 exhaustion of administrative remedies. (Doc. 31 at 10–11, 13.) Because exhaustion is a 20 condition precedent, this issue is addressed first. See Rodriguez v. Airborne Express, 265 21 F.3d 890, 900 (9th Cir. 2001) (“California courts describe exhaustion as a jurisdictional 22 prerequisite to suit under FEHA . . . . equivalent to statutes of limitations . . . .”). 23 As Monolithic argues, (Doc. 31 at 10), the FAC only alleges that Lenk filed a 24 complaint with the EEOC and received a right to sue letter in July 2023, (Doc. 26 ¶ 57). 25 Lenk has not alleged he filed a charge with the California Department of Fair Employment 26 and Housing (“DFEH”) or received from a right-to-sue letter from the DFEH. See 27 Rodrigue v. Wal-Mart Stores, Inc., 2019 WL 13042079, at *16 (C.D. Cal. 2019) 28 (explaining administrative requirements under California law). Nor does Lenk dispute 1 that he never filed a charge with the DFEH; rather, he argues that because he filed a charge 2 with the EEOC, and there is a work-sharing agreement between the EEOC and California, 3 he was not required to also file a charge with the DEFH. (Doc. 37 at 7–8.) 4 As Monolithic correctly notes, (Doc. 38 at 11), several courts have rejected the 5 argument that an EEOC right-to-sue letter can exhaust FEHA administrative remedies. 6 Martin v. Lockheed Missiles & Space Co., 35 Cal. Rptr. 2d 181, 184 (Ct. App. 1994) (“[A]n 7 EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative 8 remedies only for purposes of an action based on Title VII.”); see also Reynoso v. County 9 of Ventura, 2022 WL 2092909, at *5–11 (C.D. Cal. 2022) (concluding, upon review of 10 California and Ninth Circuit precedent, that a plaintiff does not “bec[o]me entitled to 11 receive [a DFEH right-to-sue letter] merely by virtue of filing an EEOC charge”); Foroudi 12 v. Aerospace Corp., 271 Cal. Rptr. 3d 803, 810 (Ct. App. 2020) (“[T]he exhaustion of 13 EEOC remedies does not satisfy the exhaustion requirements for state law claims.”). 14 Accordingly, because Lenk does not dispute he has not filed a charge with or 15 received a right-to-sue letter from the DFEH, his FEHA claims (Counts Three and Ten) 16 are dismissed. Leave to amend is not granted because it would be futile in light of Lenk’s 17 failure to exhaust his administrative remedies. (Doc. 37 at 8 (Lenk admitting he “is barred” 18 from filing a charge with the DFEH).) See, e.g., Donley v. Cooper, 2010 WL 1608883, at 19 *2 (E.D. Wash. 2010) (dismissing complaint for lack of exhaustion where the plaintiff 20 “admit[ted] he . . . failed to exhaust his administrative remedies prior to bringing [the] 21 action”); Foroudi, 271 Cal. Rptr. 3d at 814 (affirming denial of leave to amend on futility 22 grounds where the plaintiff had not exhausted his administrative remedies with the DFEH). 23 4. Retaliation Claims 24 Lenk asserted claims for unlawful retaliation under the WLAD (Count Six), 25 California Labor Code (Count Seven), Title VII (Count Eight), 42 U.S.C. § 1981 (Count 26 Nine), and the Sarbanes-Oxley Act (Count Twelve).10 27 Monolithic argues Lenk’s retaliation claims fail because (1) the alleged protected

28 10 Lenk also asserted a retaliation claim under FEHA, but because it has been dismissed for lack of exhaustion, the merits of the claim are not addressed. 1 activity consisted of complaints of now-precluded issues and (2) Lenk’s act of filing 2 frivolous or unsuccessful lawsuits does not constitute protected activity that can form the 3 basis of a retaliation claim. (Doc. 31 at 11–13.) Monolithic also argues that, under the 4 FAC’s allegations, Monolithic could not have retaliated against Lenk for filing his October 5 2022 EEOC complaint because the FAC states that the alleged retaliatory actions occurred 6 before that filing. (Id. at 13.) 7 a. Claims Under WLAD, California Labor Code, and Title VII 8 9 Lenk’s retaliation claims under WLAD, the California Labor Code, and Title VII 10 are analyzed together, because these anti-retaliation provisions are analyzed under the same 11 framework. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir. 2003) 12 (WLAD); Wong v. Wells Fargo Bank, N.A., 2021 WL 4243398, at *9 (N.D. Cal. 2021) 13 (California Labor Code). 14 “Title VII’s antiretaliation provision forbids employer actions that ‘discriminate 15 against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII 16 forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII 17 ‘investigation, proceeding, or hearing.” Burlington N. & Santa Fe Ry. Co. v. White, 548 18 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). The provision “seeks to prevent harm 19 to individuals based on what they do, i.e., their conduct.” Id. at 63. To succeed on a Title 20 VII retaliation claim, a “plaintiff must show that a reasonable employee would have found 21 the challenged action materially adverse, which . . . means it well might have dissuaded a 22 reasonable worker from making or supporting a charge of discrimination.” Id. at 68 23 (quotation marks omitted). This “standard is tied to the challenged retaliatory act, not the 24 underlying conduct that forms the basis of the Title VII complaint.” Id. at 69. 25 Filing a lawsuit alleging discrimination and retaliation constitutes protected activity. 26 See Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008); Lenk IV, 2021 WL 27 5233078, at *5 (“Lenk has alleged that he engaged in protected activity in 2012 by filing a 28 lawsuit against [his former employer], satisfying the first element [of a Title VII retaliation 1 claim].”). Although Monolithic argues Lenk’s lawsuits do not qualify because they were 2 ultimately deemed “meritless,” (Doc. 31 at 12–13), Monolithic does not offer any 3 persuasive authority in support. Monolithic’s cited authority pertains to whether a litigant 4 had a reasonable belief he opposed unlawful conduct or (arguably) unlawful conduct, but 5 Monolithic provides no support to show Lenk did not reasonably believe he opposed 6 unlawful conduct in any of his lawsuits or that the conduct of which he complained, if 7 proven true, would not have been unlawful. (See id. at 12.)11 8 Indeed, the Lenk I–II courts did not make a finding of frivolousness or subjective 9 bad faith, Lenk I, 2015 WL 6152475; Lenk I, 2015 WL 7429498; Lenk I, 2016 WL 10 1258862; Lenk II, 2017 WL 2491597; Lenk II, 2017 WL 1832198, and the Lenk III court 11 held that Lenk did not act with subjective bad faith in litigating that suit, Lenk III, 2020 12 WL 4673950, at *3. In fact, the Lenk III court stated that Lenk “appear[ed] sincere in his 13 belief that [Monolithic] harassed and retaliated against him during and after his 14 employment.” Lenk III, 2020 WL 4673950, at *3. It was not until Lenk IV that the court 15 deemed Lenk’s continued litigation conduct groundless and in bad faith. See Lenk IV, 2022 16 WL 824233, at *5–6 (“In the present case . . . the Court has found that all of Lenk’s claims 17 were frivolous, unreasonable, and groundless when brought . . . . Moreover, when 18 dismissing the present case, the Court found that Lenk’s insistence on reasserting claims 19 based on his alleged constructive discharge in the face of three adverse judgments suggests 20 that he is acting in bad faith.” (quotation marks omitted)). 21 In light of the Ninth Circuit’s admonition for “liberal treatment of a plaintiff’s 22 complaint at the pleading stage,” Austin, 925 F.3d at 1137, and Monolithic’s failure to 23 provide any authority that a lawsuit cannot constitute protected activity if ultimately 24 deemed to be without merit, Kuhl, 2024 WL 3463350, at *10, Lenk’s retaliation claims are 25 11 In his response, Lenk included two quotations that, upon Monolithic’s and the 26 Court’s review, did not appear in Lenk’s cited cases. (Doc. 37 at 9–10; Doc. 38 at 5.) Lenk is admonished that he is subject to Rule 11, which authorizes sanctions for 27 misrepresentations. Park v. Kim, 91 F.4th 610, 615 (2d Cir. 2024) (under Rule 11, courts may sanction parties for “misrepresenting facts or making frivolous legal arguments” and 28 parties are required to read “and thereby confirm the existence and validity of” legal authorities). 1 not dismissed to the extent they are premised on his previous lawsuits. 2 Any retaliation claim premised on the filing of the EEOC complaint, however, is 3 dismissed. (Doc. 26 ¶ 99.) The EEOC complaint cited in Lenk’s FAC was filed in October 4 2022, (id. at 53), but as Monolithic notes, (Doc. 31 at 13), Monolithic’s alleged blacklisting 5 occurred between July 2021 and March 2022, (id. ¶¶ 42, 46, 48–50, 52, 99), months before 6 Lenk filed the EEOC complaint. Logically, it would not have been possible for Monolithic 7 to retaliate against Lenk for something that had not yet occurred. See, e.g., Morgan v. 8 Napolitano, 2010 WL 3749260, at *6 (E.D. Cal. 2010) (“As a matter of logic, one cannot 9 be retaliated against for conduct in which he has not yet engaged.”); Tsao v. County of Los 10 Angeles, 2009 WL 4705422, at *8 (C.D. Cal. 2009) (dismissing retaliation claim where 11 plaintiff did not file EEOC complaint until after the alleged retaliation because “it is not 12 possible that [the defendant] could have retaliated against Plaintiff for an act which she had 13 not yet committed”). Lenk does not allege any facts that would cure this deficiency in his 14 response, (Doc. 37 at 9–10), which suggests he does not have any additional facts to plead, 15 and it is not clear what additional facts Lenk could plead to cure the logical inconsistency 16 identified above. Leave to amend for this theory is thus denied. Lopez v. Smith, 203 F.3d 17 1122, 1130 (9th Cir. 2000) (en banc) (stating that a district court should grant leave to 18 amend “unless . . . the pleading could not possibly be cured by the allegation of other facts” 19 (citation omitted)). 20 b. Title VII Exhaustion 21 Because Lenk’s Title VII retaliation claim was not dismissed above, Monolithic’s 22 separate argument that Lenk failed to exhaust his administrative remedies for his Title VII 23 retaliation claim must be addressed. (Doc. 31 at 13; Doc. 38 at 11.) Monolithic only 24 devotes a single paragraph to this argument in its motion and reply, arguing that Lenk filed 25 his charge with the CRD “more than 180 days after the alleged unlawful employment 26 practice occurred.” (Doc. 31 at 13 (quotation marks omitted)). But Monolithic 27 acknowledges that a plaintiff has 300 days from the date of the alleged employment 28 misconduct to institute proceedings with a state administrative agency, (id.), which Lenk 1 did, (Doc. 26 at 53). Lenk alleged in his CRD charge that Monolithic discriminated and 2 retaliated against him between January and July 2022, which is within the 300-day period. 3 (Doc. 32-1 at 10.) Monolithic has not argued the CRD charge was insufficient to exhaust 4 remedies of an EEOC claim or which aspects of his Title VII claim should be dismissed in 5 light of the timeliness of this charge. (See generally Doc. 38 at 11; Doc. 32-1 at 3 (stating 6 that a “copy of [the] charge [was] also . . . referred to the [EEOC] as a complaint filed 7 under their jurisdiction”); id. at 10 (titling form as “Arizona Attorney General’s Office, 8 Civil Rights Division and EEOC”).) Nor does Monolithic address the effect of Lenk’s 9 withdrawal of his charge on whether Lenk exhausted his administrative remedies. (See 10 Doc. 32-1 at 17, 19.) 11 Accordingly, whether any such arguments would be sufficient to dismiss Lenk’s 12 Title VII claim will not be addressed at this time, and Lenk’s claim is not dismissed on this 13 basis. Vasquez v. Wash. Dep’t of Veterans Affs., 746 F. Supp. 3d 1011, 1022 (W.D. Wash. 14 2024) (“Title VII’s charge-filing requirement is not jurisdictional, but rather is an 15 affirmative defense that the defendant must plead and prove. . . . [A] motion to dismiss 16 based on a failure-to-exhaust defense should only be granted if the defense is clearly 17 indicated and appear[s] on the face of the pleading.” (third alteration in original) (quotation 18 marks omitted)); Kuhl, 2024 WL 3463350, at *10. 19 c. SOX Claim 20 Monolithic argues Lenk’s SOX claim should be dismissed for several reasons. First, 21 it argues Lenk’s SOX complaint is “based entirely on [Monolithic’s] alleged misconduct 22 in 2012-2013,” in violation of the Court’s previous order that the FAC “must not allege 23 any facts or claims predicated thereon already rejected in Lenk I-IV.” (Doc. 31 at 11–12; 24 id. at 14; Doc. 25 at 12.) Second, Monolithic argues that “any claim raised in 2024 based 25 on alleged discrimination in 2013 would clearly be time-barred under the 180-day statute 26 of limitations.” (Doc. 31 at 14.) Third, Monolithic argues that, to the extent the SOX claim 27 is premised on Monolithic’s failure to hire Lenk, it is subject to dismissal because Lenk 28 was not an employee and therefore not protected under SOX, and because these allegations 1 are time barred. (Id.) 2 SOX provides that covered entities and their agents may not “discharge, demote, 3 suspend, threaten, harass, or in any other manner discriminate against an employee in the 4 terms and conditions of employment because of a[] [covered] lawful act done by the 5 employee.” 18 U.S.C. § 1514A(a). An individual who “alleges discharge or other 6 discrimination” in violation of SOX may either file a complaint with the Secretary of Labor 7 or, if the Secretary of Labor “has not issued a final decision within 180 days of the filing 8 of the complaint and there is no showing that such delay is due to the bad faith of the 9 claimant,” bring an action in federal court. Id. § 1514A(b)(1). Any “action . . . shall be 10 commenced not later than 180 days after the date on which the violation occurs, or after 11 the date on which the employee became aware of the violation.” Id. (b)(2)(D). 12 Monolithic is correct that Lenk’s SOX claim should be dismissed to the extent the 13 claim is premised on events that took place during Lenk’s employment, (Doc. 26 at 55– 14 58), because this claim is either (1) barred by claim or issue preclusion several times over, 15 for the reasons explained by this and other courts in the multiple iterations of Lenk’s 16 employment claims, (Doc. 25 at 2–4, 8–9); or (2) time-barred because Lenk did not file his 17 SOX complaint within 180 days of the alleged misconduct, which occurred over a decade 18 ago, (compare Doc. 26 ¶ 133, and id. at 55–58, with Doc. 25 at 2). 18 U.S.C. 19 § 1514A(b)(2)(D). 20 As for events that occurred after Lenk was discharged, Monolithic’s argument that 21 Lenk fails to meet the definition of an “employee” under SOX is unavailing. Regulations 22 promulgated by the Department of Labor define an “employee” as “an individual presently 23 or formerly working for a covered person, an individual applying to work for a covered 24 person, or an individual whose employment could be affected by a covered person.” 29 25 C.F.R. § 1980.101(g) (emphases added). Other courts have looked to this regulation to 26 hold that former employees can be protected under SOX. See Kshetrapal v. Dish Network, 27 LLC, 90 F. Supp. 3d 108, 113–14 (S.D.N.Y. 2015) (rejecting motion to dismiss SOX claim 28 for post-termination conduct where “a contrary holding would discourage employees from 1 exposing fraudulent activities of their former employers for fear of retaliation in the form 2 of blacklisting or interference with subsequent employment”); id. at 113 n.3 (“Interpreting 3 the term ‘employees’ to include ‘former employees’ is also consistent with recent Supreme 4 Court authority that the term ‘employee’ should be interpreted expansively in the context 5 of Section 1514A.”). 6 Some courts have rejected reliance on previous versions of this regulation because 7 the notice of final rulemaking stated that the rules were “not intended to provide 8 interpretations of [SOX].” Leshinsky v. Telvent GIT, S.A., 873 F. Supp. 2d 582, 593 9 (S.D.N.Y. 2012) (quoting Procedures for the Handling of Discrimination Complaints 10 Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title 11 VIII of the Sarbanes-Oxley Act of 2002, 69 Fed. Reg. 52104, 52105 (Aug. 24, 2004)). 12 Because Monolithic has not engaged in this analysis in its briefing, Lenk’s SOX claim will 13 not be dismissed on this ground. Kuhl, 2024 WL 3463350, at *10. 14 Monolithic’s argument that the SOX claim is time barred, to the extent it is premised 15 on post-discharge events, also fails. Monolithic argues Lenk had 180 days after the alleged 16 retaliatory conduct to bring suit in federal court. (Doc. 38 at 6.) Monolithic cites SOX, 17 which applies the 180-day statute of limitations to an “action under paragraph (1).” 18 18 U.S.C. § 1514A(b)(2)(D). Paragraph (1) in turn includes both “filing a complaint with the 19 Secretary of Labor” and “if the Secretary has not issued a final decision within 180 days of 20 the filing of the complaint . . . bringing an action at law or equity for de novo review in the 21 appropriate district court of the United States.” Id. (b)(1). 22 Although appealing on the surface, Monolithic’s argument that the 180-day statute 23 of limitations applies to commencement of an action in federal court may not be correct. 24 Monolithic has not cited a decision from any court interpreting the statute in this way, nor 25 has the Court found such a decision in its independent research. In fact, several courts 26 describe the act of filing in federal court after exhausting administrative remedies as a 27 “kick-out” process “if the administrative process drags on too long,” Jaludi v. Citigroup & 28 Co., 57 F.4th 148, 152 (3d Cir. 2023), which transfers jurisdiction over a SOX complaint 1 from the Department of Labor to federal court. See, e.g., King v. Ind. Harbor Belt R.R., 2 2017 WL 9565363, at *5 (N.D. Ind. 2017). With other statutes containing similar kick-out 3 processes, courts have interpreted the statute of limitations to apply to the initial filing with 4 the agency, not to the later federal court filing in which the “action in district court . . . 5 replaces[] a timely commenced action before the [agency]” and “requires the district court 6 to step into the place of the agency.” See Despain v. BNSF Ry. Co., 186 F. Supp. 3d 988, 7 994 (D. Ariz. 2016) (discussing the Federal Railroad Safety Act’s similar “kick-out” 8 process). 9 Ultimately, this issue need not be resolved because Monolithic has not adequately 10 presented it. “It is not this Court’s obligation to research and construct legal arguments for 11 the parties.” In re Feature Realty Litig., 2006 WL 2350178, at *4 (E.D. Wash. 2006). And 12 it is “the parties’ responsibility to cite evidence and raise arguments they want the Court to 13 consider.” Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 2019 14 WL 4565178, at *3 (C.D. Cal. 2019). Because of the minimal briefing on this issue, the 15 Court cannot conclude Monolithic met its burden to dismiss the SOX claim premised on 16 post-discharge conduct. Kuhl, 2024 WL 3463350, at *10; Sherrill v. Bressor, 2024 WL 17 1639155, at *5 (D. Ariz. 2024) (“Absent meaningful development of an argument for 18 dismissing the [relevant] claim, the claim will be allowed to proceed.”); Pac. Coast Fed’n 19 of Fishermen’s Ass’ns v. U.S. Dep’t of Interior, 929 F. Supp. 2d 1039, 1057 (E.D. Cal. 20 2013) (declining to address argument where the defendants “cite[d] no authority to support 21 a conclusion” because “[t]he Court will not manufacture arguments for either party”); La 22 Fontaine v. Vollucci, 2011 WL 13217558, at *4 (C.D. Cal. 2011) (denying motion to 23 dismiss because the defendants had not “sufficiently demonstrated” their argument to 24 “conclusively prevail[] on a Rule 12(b)(6) motion”). Accordingly, the SOX claim 25 premised on post-discharge conduct may proceed. 26 d. 42 U.S.C. § 1981 Claim 27 Lenk’s claim under Section 1981 must be analyzed separately because Lenk alleges 28 Monolithic retaliated against him because of his race. (Doc. 26 ¶ 103.) Monolithic argues 1 Lenk has not sufficiently pled a Section 1981 claim because the FAC does not allege 2 Monolithic “intentionally discriminated” against him on the basis of race. (Doc. 31 at 14– 3 15.) Monolithic makes similar arguments in support of dismissal that it made concerning 4 the race discrimination claims, namely that Lenk did not disclose his race on his job 5 application. (Id. at 15.) 6 Section 1981 “impliedly affords a federal remedy against discrimination in private 7 employment,” including a retaliation theory. Rajaram v. Meta Platforms, Inc., 105 F.4th 8 1179, 1181 (9th Cir. 2024) (quotation marks omitted); Johnson v. Lucent Techs. Inc., 653 9 F.3d 1000, 1006–07 (9th Cir. 2011). The “legal principles guiding a court in a Title VII 10 dispute apply with equal force in a § 1981 action,” so “any discussion . . . regarding [a] Title 11 VII claim[] also applies to . . . corresponding § 1981 claims.” Reynaga v. Roseburg Forest 12 Prods., 847 F.3d 678, 686 (9th Cir. 2017). 13 For the same reasons Lenk’s claims for race discrimination premised on 14 Monolithic’s failure to hire Lenk are deficient, Monolithic is correct that Lenk’s Section 15 1981 claim should be dismissed. Id. Leave to amend will not be granted, for the reasons 16 discussed below. But the FAC also premises Lenk’s Section 1981 claim on other alleged 17 conduct by Monolithic, including “career interference (blacklisting) at other companies[] 18 and for retaliation due to his opposition.” (Doc. 26 ¶ 103.) Monolithic does not address 19 these other grounds for Lenk’s Section 1981 claim, so the Court declines to dismiss these 20 other bases for this claim. Kuhl, 2024 WL 3463350, at *10. 21 5. UCL Claim 22 Monolithic argues Lenk’s California UCL claim should be dismissed because Lenk 23 “has not alleged (nor can he allege) that he has inadequate remedies at law,” and he has not 24 pled that “he either parted with money, or has a vested right to receive money.” (Doc. 31 25 at 15–16.) Lenk responds that he seeks restitutionary relief, which the UCL permits. (Doc. 26 37 at 11.) Monolithic disagrees, arguing Lenk is “seeking money damages to compensate 27 him for not being hired,” and this relief is inappropriate under the UCL. (Doc. 38 at 7.) 28 A plaintiff “must establish that []he lacks an adequate remedy at law before securing 1 equitable restitution for past harm under the UCL.” Sonner v. Premier Nutrition Corp., 2 971 F.3d 834, 844 (9th Cir. 2020). In the FAC, Lenk alleges he “would be employed if not 3 for [Monolithic’s] unfair competition and violations of” the UCL. (Doc. 26 ¶ 118.) It is 4 unclear whether Lenk ties the alleged UCL violations to Monolithic’s failure to hire him 5 or alleged blacklisting, but construing the FAC liberally, Lenk alleges both. Lenk claims 6 he has an ownership interest (presumably in employment) that can be restored through the 7 UCL. (Id. ¶¶ 119–20.) But the same harm suffered by the alleged violations of the UCL, 8 (id. ¶ 121), is virtually identical to that alleged in most of his other claims. (Id. ¶¶ 65, 70, 9 76, 82, 86, 91, 95, 100, 105, 110, 121, 140, 144, 148.) And Lenk does not otherwise allege 10 that he lacks an adequate remedy at law. (Id. ¶¶ 112–22.) 11 Accordingly, Lenk’s UCL claim must be dismissed. Barton v. Procter & Gamble 12 Co., 766 F. Supp. 3d 1045, 1067–68 (S.D. Cal. 2025) (dismissing UCL claim where the 13 plaintiffs pled “no allegations that the legal remedies are inadequate for the 14 restitution . . . that they seek under the UCL”). In light of this conclusion, Monolithic’s 15 argument that Lenk has not alleged he “parted with money, or has a vested right to receive 16 money” need not be addressed. (Doc. 31 at 16.) Because Lenk might be able to cure the 17 deficiency raised in this Order and plead the UCL claim in the alternative to his other 18 claims, Barton, 766 F. Supp. 3d at 1067–68 (noting the “‘intra-circuit split’ on whether,” 19 after Sonner, “courts may allow UCL claims to proceed past pleading when other adequate 20 remedies exist”), Lenk is given leave to amend this claim. 21 6. Blacklisting Claims 22 Monolithic argues Lenk’s blacklisting claims under California, Washington, and 23 Arizona law should be dismissed because Lenk has not alleged “any recruiter or 24 prospective employer ever conferred with [Monolithic] about Lenk” or that Monolithic 25 “provided any negative information about Lenk to any such person or company.” (Doc. 26 31 at 16.) Instead, Monolithic argues, “[a]ll that Lenk offers is bare speculation,” without 27 acknowledging the more “plausible” explanations for why he did not get the jobs: he was 28 not well qualified and had an “easily discovered history of filing a never-ending series of 1 frivolous lawsuits against a former employer.” (Id. at 17.) 2 a. Arizona 3 Arizona’s blacklisting statute prohibits “any understanding or agreement” in which 4 two employers or their agents prevent or prohibit an employee from “engaging in a useful 5 occupation.” Ariz. Rev. Stat. § 23-1361(A); see also id. § 23-1362(A). Conduct that does 6 not fall within the scope of this statute includes “a former employer . . . provid[ing] to a 7 requesting employer . . . information concerning a person’s education, training, 8 experience, qualifications, and job performance to be used for the purpose of evaluating 9 the person for employment.” Id. § 23-1361(B). “An employer who in good faith provides 10 information requested by a prospective employer about the reason for termination of a 11 former employee or about the job performance, professional conduct or evaluation of a 12 current or former employee is immune from civil liability for the disclosure or the 13 consequences of providing the information.” Id. § 23-1361(C). 14 Lenk has not sufficiently pled a blacklisting claim under Arizona law. The essence 15 of Lenk’s claim is that he interviewed with or submitted employment applications to 16 various companies, there was some “sudden change in hiring attitude” in which the 17 prospective employers stopped communicating with him, and he was not hired. (See Doc. 18 26 ¶¶ 42–51.) From this, Lenk concludes he has been blacklisted, because he had 19 “excellent results” at Monolithic. (Id.) The FAC does not allege any actions taken by 20 Monolithic, any statements made by Monolithic to Lenk’s prospective employers, any 21 interactions between Monolithic and his prospective employers, or any facts to support his 22 conclusions. This is insufficient to state a claim. See, e.g., Lenk IV, 2021 WL 5233078, at 23 *9 (dismissing Arizona blacklisting claim because Lenk did not “allege[] facts sufficient 24 to make out a plausible claim that [Monolithic] communicated with [a requesting 25 employer],” and “bare speculation that [Monolithic] must have given [Lenk] a negative 26 reference because he was not hired is insufficient to state a claim”); Riley v. City of 27 Prescott, 2012 WL 512671, at *9 (D. Ariz. 2012) (dismissing Arizona blacklisting claim 28 where the plaintiff did not make allegations like “specific statements made by [the] 1 individual Defendants” to “raise her allegations to something above speculation”); 2 Longariello v. Phx. Union High Sch. Dist., 2009 WL 4827014, at *1, 6 (D. Ariz. 2009) 3 (dismissing Arizona blacklisting claim based on allegations that the plaintiff interviewed 4 with an employer who initially “agreed that Plaintiff was qualified” but was not hired for 5 a position, because the complaint “contain[ed] no allegation that Defendant took any action 6 to prevent Plaintiff from engaging in any other employment or occupation”). 7 Lenk comes closest to specifically alleging an action taken by Monolithic—as 8 opposed to vague and conclusory statements, (see Doc. 26 ¶¶ 44, 48)—in two instances. 9 First, he alleges he was asked by a recruiter to provide a Human Resources contact at 10 Monolithic, which Lenk did. (Id. ¶ 53.) After this, the interview process “completely 11 stopped and Lenk was no longer considered” for a position. (Id.)12 But Lenk does not 12 allege that the information he provided to the recruiter was given to the prospective 13 employer (either by the recruiter or Lenk), or that a conversation happened between 14 Monolithic and the prospective employer. (See id.) Second, Lenk alleges he had an 15 interview with an employer in which the interview “focused on querying Lenk about 16 [Monolithic] and interactions with” a Monolithic employee,” (id. ¶ 47), but the FAC is 17 again devoid of any allegations that connects this event to an action taken by Monolithic. 18 Even if he made such allegations, however, it is not clear whether they would rise 19 “to something above speculation,” Riley, 2012 WL 512671, at *9, or otherwise save his 20 claim, considering that the blacklisting statute exempts information provided by a former 21 employer to a requesting employer “concerning a person’s education, training, experience, 22 qualifications and job performance,” Ariz. Rev. Stat. § 23-1361(B). This issue need not be 23 resolved at this time, however, because the claim as written is insufficient and will be 24 dismissed. 25 Because amendment would not necessarily be futile, Lopez, 203 F.3d at 1130, 26 Lenk’s blacklisting claim under Arizona law is dismissed with leave to amend.

27 12 Lenk’s allegations that Monolithic interfered with his relationship with a recruiter are not considered, (Doc. 26 ¶¶ 54–55), because a blacklisting claim under Arizona law 28 concerns interactions between two or more employers, Ariz. Rev. Stat. § 23-1361(A), and Lenk does not allege the recruiter is an employer or Monolithic’s agent. 1 b. California 2 California prohibits a person or agent “who, after having discharged an employee 3 from the service of such person or after an employee has voluntarily left such service, by 4 any misrepresentation prevents or attempts to prevent the former employee from obtaining 5 employment.” Cal. Lab. Code § 1050; id. § 1054 (providing right of action). “Courts have 6 held that section 1050 claims sound in fraud and must meet the heightened pleading 7 standards of Rule 9(b), which requires a party to ‘state with particularity the circumstances 8 constituting fraud or mistake.’” Freeman v. Wells Fargo & Co., 2023 WL 4828678, at *11 9 (N.D. Cal. 2023) (quoting Fed. R. Civ. P. 9(b)). 10 For the reasons above, and particularly in light of the application of Rule 9(b) to a 11 claim under Section 1050, Lenk’s conclusory statements that he was blacklisted—without 12 alleging actions taken by Monolithic or what Monolithic said, if at all, that constituted a 13 misrepresentation—require dismissal. See, e.g., Mikhak v. Univ. of Phx. Inc., 2022 WL 14 17488687, at *11 (N.D. Cal. 2022) (dismissing Section 1050 claim where the plaintiff 15 applied for a position, was asked about her experience at a previous employer to which she 16 responded, and subsequently never heard from the prospective employer, because the 17 “Court need not accept as true [her] speculation that the [previous employer] might have 18 given her a false reference”); Lenk IV, 2021 WL 5233078, at *8 (dismissing Lenk’s 19 California blacklisting claim because he had “not alleged any facts suggesting that 20 [Monolithic] transmitted negative references” and made “bare speculation as to 21 [Monolithic’s] conduct”); Rusak v. Apstra, Inc., 2018 WL 4219200, at *3 (N.D. Cal. 2018) 22 (dismissing Section 1050 claim where the complaint “fail[ed] to allege any facts 23 concerning the recipient, speaker, or content of the alleged misrepresentations” and “[a]t 24 most” contained “speculative allegations that plaintiff’s inability to obtain employment 25 [was] due to certain undisclosed misrepresentations by” the former employer). Again, 26 because amendment would not necessarily be futile, Lenk is given leave to amend. 27 c. Washington 28 Washington law prohibits, among other things, any “willful[] and malicious[]” 1 statement made “for the purpose of preventing any other person from obtaining 2 employment” or “that [would] tend to influence or prejudice the mind of any employer 3 against the person of such person seeking employment.” Wash. Rev. Code § 49.44.010. 4 Lenk has not sufficiently pled this claim because he has not alleged any statements 5 Monolithic made to prevent Lenk from obtaining employment. See, e.g., Lenk IV, 2021 6 WL 5233078, at *9 (dismissing Lenk’s Washington blacklisting claim because there were 7 no facts that Monolithic “sent or delivered a paper, letter or writing . . . for the purpose of 8 preventing [Lenk] from obtaining employment” (alteration in original) (quotation marks 9 omitted)); Banks v. Yoke’s Foods, Inc., 2014 WL 7177856, at *9 (E.D. Wash. 2014) 10 (dismissing Washington blacklisting claim where there were no facts that statement made 11 “was even communicated to a prospective employer or at least to someone who 12 communicates with prospective employers”). However, leave to amend will be given for 13 the same reasons as with the Arizona and California blacklisting claims. 14 C. Leave to Amend 15 As mentioned, if a pleading could be cured by the allegation of other facts, a pro se 16 litigant is typically entitled to an opportunity to amend a complaint before dismissal of the 17 action. Lopez, 203 F.3d at 1127–29. A finding of futility itself may justify not granting 18 leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Courts may also 19 consider “bad faith, undue delay, prejudice to the opposing party . . . and whether the party 20 has previously amended his pleadings.” Id. Finally, a court may deny leave to amend if 21 the “movant presents no new facts but only new theories and provides no satisfactory 22 explanation for his failure to fully develop his contentions originally.” Id. 23 As discussed in this Order, amendment of Lenk’s would not clearly be futile 24 concerning his UCL claim and state-law blacklisting claims. Accordingly, Lenk is given 25 the opportunity to amend these theories and/or claims only. Lenk must take note that an 26 amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 27 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 28 (9th Cir. 1990). Thus, after amendment, the FAC will be treated as nonexistent. Ferdik, 1 963 F.2d at 1262. Any cause of action that was raised in the FAC and that is voluntarily 2 dismissed or is dismissed without prejudice is waived if it is not alleged in an amended 3 complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 4 Lenk is not given leave to amend his FEHA claims because he has failed to exhaust 5 his administrative remedies for those claims, so any amendment would be futile. Leave to 6 amend is not warranted for Lenk’s retaliation claims to the extent premised on his filing of 7 an EEOC complaint, because no additional facts would cure the temporal inconsistency 8 discussed above. Lenk is also not given leave to amend his SOX claim premised on 9 conduct taken during Lenk’s employment with Monolithic, because this would be futile as 10 well. 11 Leave to amend is also denied on Lenk’s race discrimination theories under ACRA 12 and WLAD and his Section 1981 claim to the extent premised on Monolithic’s failure to 13 hire him. Although amendment would not necessarily be futile, other factors outweigh the 14 “strong public policy permitting amendment.” Bonin, 59 F.3d at 845. Although Lenk is 15 pro se, this is not Lenk’s first occasion asserting and unsuccessfully pleading the same or 16 similar claims against Monolithic. Lenk alleged race discrimination under Section 1981 in 17 Lenk III, which was dismissed. See Lenk III, 2020 WL 619846, at *9 (dismissing Section 18 1981 claim because Lenk had not alleged he had been discriminated against on the basis 19 of his race). Lenk was on notice long before this lawsuit that to plead a successful race 20 discrimination claim, he was required to plead facts—not mere conclusions or 21 speculation—that he was subject to discrimination based on race. See id. at *5, 9. In light 22 of this and other courts’ repeated admonishments that he must provide facts to survive 23 dismissal, (see Doc. 25 at 10–12), Lenk I, 2015 WL 7429498, at *2, 7, 9; Lenk III, 2020 24 WL 619846, at *5; Lenk IV, 2021 WL 5233078, at *3, 5, 8–9, and these courts’ dismissal 25 of his claims for failure to do so, Lenk’s conclusory allegations in this action are made in 26 bad faith. Lenk has not offered a satisfactory explanation for his failure to meet the 27 requirements of Rule 8 in view of the many opportunities he has been given and leniency 28 he has been shown by this and other courts. Finally, it would unduly prejudice Monolithic 1 to grant Lenk leave to amend these theories, given Lenk’s history of insufficient pleadings 2 and meritless suits against Monolithic, and given Monolithic has spent almost $1 million 3 defending against them. Denial of leave to amend is justified. 4 All other claims and/or theories may proceed. 5 IV. MOTION FOR LEAVE TO AMEND 6 Lenk seeks to amend his complaint to add BlackRock as a defendant. (Doc. 48.) 7 He argues that Monolithic’s identification of BlackRock in its corporate disclosure 8 statement is “of concern” because BlackRock “uses their financial leverage to drive 9 ESG/DEI policies onto companies they invest in,” citing several articles and website pages. 10 (Id. at 1–5.) He claims BlackRock’s “significant ownership of [Monolithic] drove 11 [Monolithic] to follow ESG/DEI policies” for BlackRock’s own benefit and that 12 BlackRock’s policies “may be the true source of [Monolithic’s] discrimination.” (Id. at 4.) 13 Lenk vaguely asserts BlackRock’s “unjust influence . . . violated Title VII and other laws.” 14 (Id. at 5.) 15 Monolithic opposes the motion, arguing that (1) Lenk violated this Court’s Local 16 Rules by failing to attach the proposed amended pleading, and (2) amendment would be 17 futile because (a) Lenk “asserts nothing that would justify piercing the corporate veil to 18 reach [Monolithic’s] shareholders” and (b) Title VII only provides liability against 19 employers, not the owners or investors of such employers. (Doc. 49 at 3–4.) 20 In his reply, Lenk attached a proposed Second Amended Complaint (“SAC”), which 21 added BlackRock to Lenk’s claims for race and age discrimination (Counts One through 22 Five and Count Nine). (Doc. 50 at 31–36, 39–40.) The proposed SAC alleges BlackRock 23 forces companies in which it invests, like Monolithic, to adopt ESG or DEI policies that 24 caused Monolithic to discriminate against Lenk, so BlackRock is vicariously liable for the 25 discrimination against him. (Id. at 19–31.) 26 Monolithic was given the opportunity to file a sur-reply, (Doc. 51), which 27 Monolithic filed, (Doc. 52). Monolithic argues Lenk’s motion should be denied because 28 (1) the proposed claims against BlackRock suffer from the same deficiencies as Lenk’s 1 claims against Monolithic, (2) BlackRock cannot be held vicariously liable in its capacity 2 as a shareholder of Monolithic, and (3) even if BlackRock could be held vicariously liable, 3 Lenk has not alleged any facts to suggest that BlackRock engaged in any leveraging 4 practices with Monolithic specifically, when it did so, or how the policies are unlawfully 5 discriminatory. (Doc. 52 at 3–6.) 6 A. Legal Standard 7 Rule 15 provides that the “court should freely give leave [to amend] when justice 8 so requires.” Fed. R. Civ. P. 15(a)(2). As the term “freely” suggests, this “policy is to be 9 applied with extreme liberality.” Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th 10 Cir. 2018) (citation omitted). “Although leave to amend should be given freely, denying 11 leave is not an abuse of discretion if it is clear that granting leave to amend would have 12 been futile.” In re Cloudera, Inc., 121 F.4th 1180, 1189–90 (9th Cir. 2024) (citation 13 omitted). The Court also “has discretion to deny leave to amend when there are 14 countervailing considerations such as undue delay, prejudice, [or] bad faith.” Ctr. for 15 Biological Diversity v. U.S. Forest Serv., 80 F.4th 943, 956 (9th Cir. 2023) (quotation 16 marks omitted). 17 B. Discussion 18 Monolithic is correct that Lenk’s proposed claims against BlackRock lack merit, so 19 granting Lenk leave to amend to add BlackRock as a defendant would be futile. Chinatown 20 Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1144 (9th Cir. 2015) (stating that leave to 21 amend “may be denied if the proposed amendment . . . lacks merit”).13 First, Lenk’s FEHA 22 discrimination claim (Count Three) is meritless because Lenk has not exhausted his 23 administrative remedies, as discussed above regarding his FEHA claim against Monolithic. 24 13 Monolithic submitted a declaration of its Executive Vice President and Chief 25 Financial Officer, which contains statements about BlackRock’s engagement with Monolithic. (Doc. 52-1.) This declaration may not be considered in resolving the motion 26 for leave to amend, because the “challenged pleading is to be evaluated based on its allegations and documents that are incorporated by reference.” LMNO Cable Grp., Inc. v. 27 Discovery Commc’ns, LLC, 2017 WL 5479614, at *3 (C.D. Cal. 2017); see also Entrepreneur Media, Inc. v. Roach, 2021 WL 4134836, at *7 (C.D. Cal. 2021) (rejecting 28 an argument that was “grounded in the submitted declaration outside the pleadings that the Court [would] not consider on a motion to amend”). 1 The race discrimination claims are also meritless for the reasons discussed in this Order, 2 and Lenk does not have leave to amend. 3 Second, Lenk could not hold BlackRock vicariously liable for the remaining claims 4 Lenk proposes, under the facts alleged in the proposed SAC. Even parent companies— 5 which the proposed SAC does not allege BlackRock is—are generally not liable for the 6 “alleged discrimination of its subsidiary absent special circumstances.” Ozkan v. Am. 7 Casino & Ent. Props., LLC, 2014 WL 4105065, at *4 (D. Nev. 2014); see also Burnet v. 8 Clark, 287 U.S. 410, 415 (1932) (“A corporation and its stockholders are generally to be 9 treated as separate entit[i]es. Only under exceptional circumstances . . . can the difference 10 be disregarded.”); Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir. 1997) 11 (holding that the ADEA “contains no basis for disregarding the venerable corporate law 12 principle of limited liability or for otherwise extending liability to a parent corporation for 13 the discriminatory acts of its subsidiary”); Sanford, 2011 WL 1877904, at *5 (“The analysis 14 of an ADEA claim is the same as the analysis of a Title VII claim.”); Knowles, 2010 WL 15 3614653, at *3 (ACRA analyzed the same as ADEA); Robinson, 539 F. Supp. at 1325 16 (same for WLAD). The proposed SAC does not allege facts to make this case the exception 17 to the rule: Lenk alleges BlackRock is inclined toward certain policies and goals, but as 18 Monolithic notes, (Doc. 52 at 5–6), Lenk does not allege any non-conclusory facts that 19 BlackRock accordingly influenced Monolithic’s employment policies, or that BlackRock 20 even had such influence as a minority shareholder. 21 Further, even if BlackRock had exerted such influence over Monolithic, Lenk does 22 not allege any non-conclusory or non-speculative facts that any policies BlackRock 23 influenced Monolithic to implement were in fact discriminatory or had any effect on Lenk’s 24 attempts to be hired by Monolithic. (See Doc. 50 at 19–20 (conclusory allegations that 25 BlackRock forces companies in which it invests, and consequently Monolithic, to adopt 26 undefined ESG policies that “caused” discrimination); id. at 23–24 (conclusorily stating 27 BlackRock has “operational and financial control over [Monolithic], especially to 28 implement BlackRock’s ESG/DEI agenda” but citing to statements or articles issued at 1 different points in time about BlackRock’s overarching practices or goals); id. at 25 (citing 2 article that BlackRock took “voting action against . . . 22%” of non-specific companies); 3 id. at 27 (conclusorily alleging BlackRock “exercised control over essential terms and 4 conditions of employment of [Monolithic’s] employees”); id. at 28 (citing letter concerning 5 voting action taken “against companies on climate issues” (emphasis added)); id. at 29 6 (citing article asserting BlackRock “pressure[ed] utility companies to phase out traditional 7 energy investments”).) 8 Simply put, Lenk allegations concerning BlackRock do not tie BlackRock to 9 Monolithic’s alleged conduct apart from BlackRock’s mere status as a minority 10 shareholder. This is not enough for Lenk’s proposed claims to be viable. Cf. Corrigan v. 11 U.S. Steel Corp., 478 F.3d 718, 724 (6th Cir. 2007) (“A parent corporation generally is not 12 liable for the acts of its subsidiary, even if its subsidiary is wholly owned.” (emphasis 13 added)). The Court thus denies Lenk’s motion for leave to amend to add claims against 14 BlackRock, without prejudice to Lenk filing a future motion for leave to amend if he can 15 allege facts that would cure the deficiencies raised in this Order.14 16 Accordingly, 17 IT IS ORDERED that Monolithic’s motion to dismiss the FAC (Doc. 31) is 18 granted in part and denied in part, as follows: 19 (1) Count Eleven (UCL) is dismissed with leave to amend; 20 (2) Counts Thirteen (California blacklisting), Fourteen (Washington 21 blacklisting), and Fifteen (Arizona blacklisting) are dismissed with leave to 22 amend; 23 (3) Counts Three and Ten (FEHA) are dismissed without leave to amend; 24 (4) Lenk’s race discrimination theories under Counts Four (ACRA) and Five 25 (WLAD) are dismissed without leave to amend;

26 14 Lenk’s “sur-sur-reply,” (Doc. 53), was filed without authorization, so it will not be considered. See, e.g., Bond v. Comm’r of Soc. Sec. Admin., 2020 WL 2615970, at *1 n.1 27 (D. Ariz. 2020) (“Surreplies are not permitted in the District of Arizona without the court’s approval.”); Kuc v. MTC Fin. Inc., 2012 WL 5269208, at *2 (D. Ariz. 2012) (“The Local 28 Rules do not authorize filing a surreply without leave of court.”). Furthermore, consideration of its arguments would not have changed the conclusions in this Order. 1 (5) Counts Six (WLAD), Seven (California Labor Code), and Eight (Title VID), 2 premised on retaliation for Lenk’s filing of an EEOC complaint are dismissed 3 without leave to amend, but the other premises underlying such retaliation 4 claims may proceed; 5 (6) Count Nine (Section 1981) premised on Monolithic’s failure to hire Lenk is 6 dismissed without leave to amend, but the other premises underlying the 7 claim may proceed; 8 (7) | Count Twelve (SOX) premised on conduct taken during Lenk’s employment 9 with Monolithic is dismissed without leave to amend, but the other premises 10 underlying the claim may proceed. 11 IT IS FURTHER ORDERED that Lenk may have 14 days to file a Second 12 || Amended Complaint. Consistent with LRCiv 15.1, Lenk shall file, concurrently with any 13 || Second Amended Complaint, a notice of filing the amended pleading that attaches a copy of the amended pleading indicating in what respect it differs from the FAC. 15 IT IS FURTHER ORDERED that Monolithic’s request for judicial notice (Doc. 32) is granted. 17 IT IS FURTHER ORDERED that Lenk’s motion for default (Doc. 42) is denied. 18 IT IS FURTHER ORDERED that Lenk’s motion for leave to amend his complaint || to add a defendant (Doc. 48) is denied. 20 Dated this 6th day of August, 2025. 21 22 / 23

* H le Sharad H. Desai 26 United States District Judge 27 28

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