1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MOHAMMAD PARSA HOSSEINI, Case No. 24-cv-06758-SI

8 Plaintiff,

ORDER RE: MOTION TO DISMISS

9 v. Re: Dkt. No. 16 10 SIEMENS CORPORATION, 11 Defendant.

12 13 14 Before the Court is defendant Siemens Corporation’s motion to dismiss parts of plaintiff’s 15 first and second causes of action. Dkt. No. 16. Pursuant to Civil Local Rule 7-1(b), the Court 16 determines that the motion is suitable for resolution without oral argument. For the reasons stated 17 below, the Court GRANTS the motion to dismiss plaintiff’s claim of discrimination on the basis of 18 sex, gender, color, and religion and DISMISSES plaintiff’s harassment claim in full. The Court 19 provides plaintiff leave to amend the complaint. 20 21 BACKGROUND 22 Defendant Siemens Corporation (“defendant”) hired Plaintiff Mohammad Parsa Hosseini 23 (“plaintiff”) on December 6, 2021 as a Senior Staff Research Scientist. Dkt. No. 14 (First Amended 24 Complaint (“FAC”)) ¶ 17.1 Plaintiff has a Ph.D. in Electrical and Computer Engineering from 25 Rutgers University. Id. ¶ 14. While working for defendant, plaintiff reported to Annemarie Breu. 26

27 1 In evaluating a motion to dismiss for failure to state a claim, the Court accepts the 1 Id. at ¶ 17. 2 Plaintiff alleges that defendant discriminated against him based on his sex, race, ethnicity, 3 religion, national origin, and disability. FAC ¶ 15.2 Plaintiff “holds himself openly as a Muslim, a 4 Persian ethnically, and an immigrant from Iran.” Id. ¶ 2. Plaintiff alleges Breu “insulted him in 5 private and publicly, interfered with his work, and attacked his character.” Id. ¶ 17. Plaintiff asserts 6 that the attacks by Breu were motivated by his “race, ethnicity, nationality, and religion.” Id. More 7 specifically, plaintiff alleges Breu “repeatedly” commented that plaintiff had trouble 8 communicating in English and that he did not belong on her team due to his identity. Id. ¶ 18. Later, 9 plaintiff alleges that Breu told him that “the people of his country [Iran] are immature.” Id. ¶ 28. 10 Plaintiff filed his first complaint with human resources three days after he was hired. Id. 11 ¶ 21. Plaintiff claims Breu immediately responded by telling him in a one-on-one meeting that he 12 was not wanted on her team. Id. Plaintiff filed subsequent internal complaints on April 19, 2022, 13 May 9, 2022, August 5, 2022, October 20, 2022, and November 23, 2022. Id. ¶¶ 23, 25. Plaintiff 14 asserts defendant did not take any corrective actions in response to his complaints. Id. 15 In addition, plaintiff claims that Breu allowed plaintiff’s peer and co-worker, Joe Tilka, to 16 supervise and instruct plaintiff in a “demeaning manner and tone.” Id. ¶ 19. Plaintiff alleges that 17 Tilka, a white man, was promoted while “[o]ther individuals who were Muslim and of similar 18 regional origin experienced discrimination severe enough to push them out of the team.” Id. ¶ 20. 19 On April 25, 2022, plaintiff’s doctor “asked him to take a five-day medical leave due to 20 stress caused by his workplace conditions.” Id. ¶ 22. Plaintiff submitted a Medical Reasonable 21 Accommodation Request on November 2, 2022 after being diagnosed with an adjustment disorder 22 with anxiety. Id. ¶ 27. Plaintiff was diagnosed with PTSD and Major Depressive Disorder on 23 November 10, 2022, allegedly “as a direct result of the hostile work environment at Siemens.” Id. 24 ¶ 29. 25 Defendant placed plaintiff on a “Performance Evaluation Track” on August 4, 2022, an 26 2 In other parts of the FAC, plaintiff references the protected categories of color, ancestry, 27 and gender, but presents no allegations specific to his color or gender and only one specific 1 action he responded to on August 8, “refuting its false and inaccurate premises.” Id. ¶ 26. Plaintiff 2 alleges he “worked nights and weekends” to meet the goals of the plan. Id. In November 2023, 3 plaintiff initiated a reasonable accommodations process with defendant and plaintiff asked to be 4 transferred to another team. Id. ¶ 29. Plaintiff alleges defendant instead “asked him to take a leave 5 of absence or short-term disability.” Id. ¶ 30. Plaintiff declined and contends that, in response, 6 defendant terminated plaintiff’s employment on January 9, 2023. Id. ¶ 31. 7 Plaintiff filed an administrative charge with the California Civil Rights Department on May 8 20, 2024 and received a “right to sue” letter on that date. Id. ¶ 13. Plaintiff filed this litigation in 9 Alameda County Superior Court and defendant timely removed on the basis of diversity jurisdiction. 10 Dkt. No. 1. Plaintiff filed the FAC on October 11, 2024. Dkt. No. 14. The FAC asserts five causes 11 of action: (1) discrimination in violation of California’s Fair Housing and Employment Act 12 (“FEHA”) (Cal. Gov’t Code § 12940 et seq.) on the basis of disability, gender, sex, color, national 13 origin, religion, race and ancestry; (2) harassment in violation of FEHA on the basis of the same 14 protected categories; (3) retaliation in violation of FEHA (Cal. Gov’t Code § 12940(h)); (4) 15 retaliation in violation of California Labor Code section 1102.5; and (5) wrongful termination in 16 violation of public policy. See FAC. 17 Defendant subsequently filed the present motion to dismiss. Dkt. No. 16. Defendant’s 18 motion asks the Court to dismiss with prejudice plaintiff’s “first cause of action for discrimination 19 based on sex/gender, color, and religion and second cause of action for harassment based on 20 sex/gender, race, color, national origin/ancestry, and religion.” Id. at 12. 21 22 LEGAL STANDARD 23 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 24 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 25 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 26 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 27 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted 1 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the 2 speculative level.” Twombly, 550 U.S. at 555, 570. 3 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 4 court must assume that the plaintiff’s allegations are true and must draw all reasonable inferences 5 in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d at 561. However, the court is not 6 required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, 7 or unreasonable inferences.” In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 8 (citation and internal quotation marks omitted). A pleading must contain allegations that have 9 “factual content that allows the court to draw the reasonable inference that the defendant is liable 10 for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 11 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 12 unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 555 U.S. at 556). 13 If the Court dismisses the complaint, it must then decide whether to grant leave to amend. 14 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend . . . unless it 15 determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. 16 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted). 17 18 DISCUSSION 19 Defendant moves to dismiss parts of the FAC’s first and second causes of action for failure 20 to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court considers 21 whether plaintiff has pled a plausible claim for each of plaintiff’s causes of action. While pleading 22 a prima facie case is not necessary to survive a motion to dismiss, Sheppard v. David Evans & 23 Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012), “[d]istrict courts in this circuit regularly look to the 24 elements of a prima facie case to inform a decision on a motion to dismiss,” Cervantes v. Stockton 25 Unified Sch. Dist., No. 15-60, 2015 WL 3507416, at *4 (E.D. Cal. June 3, 2015). But the ultimate 26 inquiry is whether the FAC contains “sufficient factual allegations that plausibly suggest entitlement 27 to relief.” Mattioda v. Nelson, 98 F.4th 1164, 1174 (9th Cir. 2024) (citation omitted). 1 I. FEHA Discrimination 2 A prima facie case of discrimination under FEHA requires showing that “(1) [the plaintiff] 3 was a member of a protected class, (2) he was qualified for the position he sought or was performing 4 competently in the position he held, (3) he suffered an adverse employment action . . . and (4) some 5 other circumstance suggests discriminatory motive.” Martin v. Bd. of Trustees of California State 6 Univ., 315 Cal. Rptr. 3d 117, 130 (2023) (quoting Guz v. Bechtel Nat. Inc., 8 P.3d 1089, 1113 (Cal. 7 2000)). This means a plaintiff must show a “causal nexus between the adverse employment action 8 and [plaintiff’s] protected characteristic.” Id. 9 Defendant Siemens correctly argues that plaintiff fails to plead facts in support of a claim of 10 discrimination based on sex, gender, color, and religion.3 Dkt. No. 16-1 (“Mot.”) at 6-8. The 11 complaint is devoid of allegations that show a “causal nexus” between any adverse employment 12 actions and these protected characteristics. See Martin, 315 Cal. Rptr. 3d at 130. Regarding 13 plaintiff’s sex and gender, the complaint’s only reference to these characteristics is in plaintiff’s 14 description of himself as “an ethnically Persian man.” FAC ¶¶ 1, 14. The FAC does not allege that 15 plaintiff’s sex or gender motivated the alleged discrimination. See Guthrey v. State of California, 16 75 Cal. Rptr. 2d 27, 34 (1998) (“[N]othing suggests [the supervisor] handled the matter the way she 17 did because of plaintiff’s gender. . . . Without some evidence to make such an inference a reasonable 18 one, it is mere speculation to suspect gender discrimination. . . .”) Indeed, the FAC compares 19 plaintiff to another male employee who was allegedly treated more favorably, but has not pointed 20 to similarly situated women at his workplace who have been treated more favorably. 21 Similarly, plaintiff has not alleged any facts suggesting discrimination was motivated by 22 defendant’s color rather than other protected characteristics. The Equal Employment Opportunity 23 Commission defines color discrimination as “when a person is discriminated against based on the 24 lightness, darkness, or other color characteristic of the person.” See Belt v. Rees, No. 2:24-cv-00582- 25 APG-DJA, 2024 U.S. Dist. LEXIS 69741, at *14 (D. Nev. Apr. 15, 2024) (citing EEOC Compliance 26 Manual § 15-III, What is “Color” Discrimination, 2006 WL 4673426, at *1 (June 1, 2006)). While 27 1 plaintiff’s opposition asserts that his skin color is “readily apparent to all persons involved in this 2 lawsuit,” that alone does not make a plausible claim of color discrimination. See Dkt. No. 19 3 (“Opp’n”) at 2. Nothing in the FAC references discriminatory acts motivated by defendant’s skin 4 color rather than his race or national origin. 5 While plaintiff makes two references to his religion, the FAC also lacks specific facts that 6 create a plausible claim of discrimination on the basis of religion. The FAC states that “[p]laintiff 7 holds himself openly as a Muslim.” FAC ¶ 2. It further alleges that “[o]ther individuals who were 8 Muslim and of similar regional origin experienced discrimination severe enough to push them out 9 of the team.” Id. ¶ 20. In his opposition brief, plaintiff also notes his name is Muslim and that he 10 told coworkers and managers about the religious holidays that he observed, although this latter fact 11 is not in the FAC. Opp’n at 2-3. While defendant and plaintiff’s supervisor may have known or 12 plausibly inferred plaintiff’s religious beliefs, the FAC still lacks any allegations that connect 13 specific discriminatory behavior directed at plaintiff to his religious identity. 14 For these reasons, the Court grants defendant’s motion to dismiss plaintiff’s discrimination 15 claim as it relates to sex, gender, color, and religion. The claim survives as it relates to the 16 uncontested categories of disability, race, national origin, and ancestry. As plaintiff’s opposition 17 brief suggests additional facts might be available to support his claims, the Court grants leave to 18 amend. 19 20 II. FEHA Harassment 21 FEHA’s anti-harassment provision protects employees from “situations in which the social 22 environment of the workplace becomes intolerable because the harassment . . . communicates an 23 offensive message to the harassed employee.” Roby v. McKesson Corp., 219 P.3d 749, 761 (Cal. 24 2009) (emphasis removed). “To establish a claim for harassment, a plaintiff must demonstrate that: 25 (1) she is a member of a protected group; (2) she was subjected to harassment because she belonged 26 to this group; and (3) the alleged harassment was so severe that it created a hostile work 27 environment.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013) (citing 1 conduct must be objectively severe or pervasive and subjectively perceived by the victim as abusive. 2 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).4 Personnel management actions—such as 3 placing an individual on a performance plan or terminating employment—may constitute 4 discrimination but cannot be considered harassment. Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d 5 741, 746 (1996). An employer is strictly liable for harassment by a supervisor, and liable for 6 harassment by coworkers if it is negligent in allowing the harassment to continue. State Dep't of 7 Health Servs. v. Superior Ct., 79 P.3d 556, 562 (Cal. 2003); Cal. Gov. Code, § 12940(j)(1). 8 Defendant argues that plaintiff does not state sufficient facts to support a plausible 9 harassment claim based on sex, gender, race, color, national origin, ancestry, and religion.5 Mot. at 10 8. First, defendant correctly asserts that personnel management decisions must be removed from 11 consideration, as California courts have considered those under discrimination claims, but not 12 harassment. Mot. at 9; see Janken, 53 Cal. Rptr. 2d at 746. Next, defendant argues that plaintiff 13 has not pled facts suggesting that any alleged actions constituted severe or pervasive harassment. 14 Mot. at 9-10. Citing state and federal precedent, the California Supreme Court recently described 15 the “severe or pervasive” inquiry as follows: 16 Whether a work environment is reasonably perceived as hostile or abusive is not, and by its nature cannot be, a mathematically precise test. The working environment must be evaluated 17 in light of the totality of the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a 18 mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The required level of severity or seriousness varies inversely with the 19 pervasiveness or frequency of the conduct. [S]imple teasing, offhand comments, and 20 isolated incidents (unless extremely serious) are not sufficient to create an actionable claim of harassment. 21 Bailey v. San Francisco Dist. Attorney's Off., 552 P.3d 433, 444 (Cal. 2024) (internal quotation 22 marks and citations omitted). Defendant argues that plaintiff has not alleged pervasive harassment 23 and that Breu’s alleged isolated statement that “people of his country [Iran] are immature” is not 24 25 4 While Harris considers a harassment claim under federal Title VII law, the standard for 26 evaluating harassment under Title VII and FEHA is the same. Aguilar, 980 P.2d at 851.

27 5 Defendant’s motion does not address harassment based on disability, the last protected 1 severe enough to constitute harassment on the basis of race, color, national origin, ancestry, or 2 religion. Mot. at 10. Defendant further argues that the FAC contains no evidence of harassment 3 based on sex or gender. Mot. at 11. 4 In its papers, defendant directs the Court to several cases where harassment claims have been 5 dismissed due to insufficient pleadings. In Smith v. W.W. Grainger, Inc., No. EDCV 18-1405 JGB 6 (SPx), 2019 U.S. Dist. LEXIS 67412, at *14-15 (C.D. Cal. Feb. 5, 2019), the court found 7 “conclusory assertions that [plaintiff] was threatened, stalked, bullied, and admonished” lacked 8 factual detail and therefore were not entitled to a presumption of truth. See also Ames v. City of 9 Novato, No. 16-cv-02590-JST, 2017 U.S. Dist. LEXIS 5504, at *1-2 (N.D. Cal. Jan. 12, 2017) 10 (holding plaintiff failed to allege “adequate factual content” regarding bullying and unwarranted 11 emails that allegedly constituted harassment). In another case, an employer’s comment that plaintiff 12 give up her green card and marry her partner was not sufficient on a motion to dismiss to constitute 13 harassment on the basis of gender, family status, or national origin. Stambanis v. TBWA Worldwide, 14 Inc., No. 219CV03962ODWJEM, 2019 WL 3997257, at *4 (C.D. Cal. Aug. 23, 2019). In Lurie v. 15 Konica Minolta Bus. Sols. U.S.A., No. 16-CV-00787 RGK (JCx), 2016 U.S. Dist. LEXIS 188351, 16 at *7-8 (C.D. Cal. Apr. 6, 2016), the complaint’s noting of a few “isolated and sporadic” comments 17 related to the plaintiff’s medical condition was not enough to plausibly allege harassment. Finally, 18 in one last case, a court dismissed allegations that a Latino plaintiff was harassed when subjected to 19 offensive racial comments, “including but not limited to, those Latinos should be happy they even 20 had a job and Latinos bring cockroaches to work from home.” Mendoza v. Golden Valley Health 21 Centers, No. 116CV01611DADSAB, 2016 WL 7384020, at *4 (E.D. Cal. Dec. 20, 2016). 22 While the plaintiff in this case has clearly pled a case of subjectively perceived harassment,6 23 the question of whether the FAC alleges sufficient factual content to present a claim of objective 24 harassment is a close one. Plaintiff makes numerous conclusory allegations in the FAC, including 25 that Breu insulted him and interfered with his work and that Muslim coworkers were forced out of 26 the team. FAC ¶¶ 17, 20. But plaintiff also alleges a few more specific facts, including that Breu 27 1 “repeatedly” commented that plaintiff had trouble communicating in English and that he did not 2 belong on her team due to his identity. Id. ¶ 18. Later, plaintiff alleges that Breu told him that “the 3 people of his country [Iran] are immature.”7 Id. ¶ 28. These comments, coming from plaintiff’s 4 direct supervisor, bring this case closer to the plausibility standard than the comments in defendant’s 5 cited cases, except for Mendoza. In Mendoza, the comments directed at the plaintiff were arguably 6 more offensive, yet still were not enough to constitute severe or pervasive harassment. See 7 Mendoza, No. 116CV01611DADSAB, 2016 WL 7384020, at *4. 8 The Court ultimately concludes that the factual content in the FAC is insufficient to establish 9 severe or pervasive harassment on the basis of any of plaintiff’s protected characteristics. There is 10 no evidence that connects the complained of behavior to plaintiff’s sex, gender, disability, or color. 11 Further, many of plaintiff’s allegations connecting troubling comments to his national origin, 12 religion, race and ancestry are conclusory. The Court recognizes that plaintiff appears to have 13 suffered distress during his short tenure working for defendant, but the few specific facts that 14 plaintiff provides do not plausibly allege objectively severe or pervasive harassment. However, 15 given that this is a close call, plaintiff will be provided leave to amend to add more specific facts to 16 his complaint. 17 18 19 20 21 22 23 /// 24 /// 25

26 7 In his opposition, plaintiff also alleges a hostile work environment based on sexual favoritism Breu allegedly showed plaintiff’s coworker. For sexual favoritism to create a hostile 27 work environment, it must be “widespread.” See Miller v. Dep't of Corr., 115 P.3d 77, 90 (Cal. 1 CONCLUSION 2 For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant’s 3 || motion to dismiss plaintiffs claims of discrimination based on sex, gender, color, and religion. The 4 || Court further DISMISSES plaintiff's harassment claim in full. The Court gives plaintiff leave to 5 amend his complaint to add specific factual details in support of both claims. Should plaintiff choose 6 || amend his complaint, he must do so by December 20, 2024. Otherwise, the litigation will proceed 7 on plaintiffs remaining claims. 8 9 IT IS SO ORDERED. 10 Dated: December 6, 2024 11 a (12

SUSAN ILLSTON

13 United States District Judge

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