Case Name: Syed Nazim Ali v. Cisco Systems, Inc.

Case No.: 2018-CV-328966

Demurrer and Motion to Strike to the First Amended Complaint by Cisco Systems, Inc.

Factual and Procedural Background

This employment action for discrimination based on age, race, national origin, and religion arises out of the refusal by defendant Cisco Systems, Inc. (“Cisco”) to hire plaintiff Syed Nazim Ali (self-represented) (“Ali”).

On April 3, 2017, Ali applied for the following positions with Cisco: (1) Senior Security Consultant; (2) VPN Security Technical Support Engineer; (3) Hybrid Cloud Consultant; (4) Security Consulting Systems/Sales Engineer; (5) IT Auditor Engineer; (6) Security and Compliance Analyst; and (7) Corporate System Engineer. (First Amended Complaint [“FAC”] at ¶¶ 48-55, 87.) Despite Ali’s qualifications for the positions, defendant Cisco did not hire him. (Id. at ¶¶ 49-55, 57-58, 60, 87.) Ali alleges defendant Cisco discriminated and retaliated against him because of his race, religion, and national origin. (Id. at ¶¶ 60, 75, 77, 78.) Ali contends defendant Cisco has a preference for people of South Indian and Indian descent in management positions. (Id. at ¶ 78.) As a consequence, plaintiff Ali suffered undue emotional distress, physical pain, along with mental and emotional trauma. (Id. at ¶ 70.)

On June 3, 2017, plaintiff Ali filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and Department of Fair Employment and Housing (“DFEH”) which included charges of discrimination on the basis of race, national origin, and religion and retaliation. (FAC at ¶ 13.) Ali thereafter received a notice of right to sue.

On May 31, 2018, plaintiff Ali filed a complaint against defendant Cisco alleging causes of action for: (1) discrimination based on race in violation of the Fair Employment and Housing Act (“FEHA”); (2) discrimination based on age in violation of the Age Discrimination Employment Act of 1967; (3) discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (4) discrimination based on race in violation of Title VII; (5) discrimination based on religion in violation of Title VII; (6) retaliation in violation of the FEHA; and (7) intentional infliction of emotional distress.

On April 12, 2019, defendant Cisco filed a demurrer and motion to strike to the complaint. The motions were heard and submitted on August 1, 2019. In its final order, the Court sustained the demurrer with leave to amend to the first and sixth causes of action. The demurrer was sustained without leave to amend to the seventh cause of action. The motion to strike the request for punitive damages was moot given the ruling on demurrer.

On August 7, 2019, plaintiff Ali filed the operative FAC alleging causes of action for: (1) discrimination based on race in violation of the FEHA; and (2) retaliation in violation of FEHA and the Labor Code.

Currently before the Court are defendant Cisco’s demurrer to the FAC and motion to strike the request for punitive damages. Plaintiff Ali filed written opposition. Defendant Cisco filed reply papers.

Demurrer to FAC

Defendant Cisco demurs to the first and second causes for failure to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).)

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

First Cause of Action: Race Discrimination in Violation of the FEHA

The first cause of action is a claim for race discrimination in violation of the FEHA.

“The FEHA establishes a comprehensive scheme for combating employment discrimination. [Citations.] As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. [Citation.] [The Supreme Court] has declared that policy be ‘fundamental.’ [Citation.]” (Brown v. Super. Ct. (1984) 37 Cal.3d 477, 485.)

The FEHA makes it unlawful for an employer to refuse to hire a person because of his race or other statutorily specified reasons. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1004, fn. 4 (Hicks); Gov. Code, § 12940, subd. (a).) “Failure-to-hire claims under the FEHA are subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 … (McDonnell Douglas).” (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 736 (Abed).) “Although ‘[t]he specific elements of a prima facie case may vary depending on the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally … must [establish] that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought …, (3) he [or she] suffered an adverse employment action, such as … denial of an available job, and (4) some other circumstance suggests discriminatory motive,’ such as that the position remained open and the employer continued to solicit applications for it. [Citations.]” (Abed, supra, 23 Cal.App.5th at p. 736; Hicks, supra, 160 Cal.App.4th at pp. 997-1002, fn. 3, citing McDonnell Douglas, supra, 411 U.S. at p. 802; McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979.)

As explained in the moving papers, plaintiff Ali’s pleading falls short as he fails to allege whether he was qualified for the seven positions he applied for with defendant Cisco to support the first cause of action. The FAC alleges throughout that plaintiff Ali had certain qualifications and certifications. But he fails to connect any specific qualifications to the positions he applied for with defendant Cisco. On that basis alone, plaintiff Ali fails to state a cause of action.

In addition, as discussed in the moving papers, plaintiff Ali fails to allege facts demonstrating that defendant Cisco acted with any racially discriminatory motive. The crux of his discrimination claim is that defendant Cisco had a preference for people of South Indian and Indian descent as opposed to plaintiff Ali whose country of origin is Pakistan. (See FAC at ¶¶ 75, 78.) As the United States Supreme Court has explained, “ ‘[d]isparate treatment’ … is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin.” (Teamsters v. United States (1977) 431 U.S. 324, 225-336, fn. 15.) “In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748 [in disparate treatment cases, the plaintiff must show that defendant engaged in intentional discrimination].) Plaintiff Ali here fails to allege facts showing defendant Cisco acted with a discriminatory motive in the selection and hiring process.

The Court notes that plaintiff Ali did reveal his Pakistani heritage during an interview on April 27, 2016 as he applied for a role as a Security Architect. (See FAC at ¶ 29.) Defendant Cisco persuasively argues this allegation is improper as it is time barred and not included with plaintiff Ali’s EEOC/DFEH Charge. (See Gov’t Code, § 12960, subd. (d); see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [to exhaust administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint].) Plaintiff Ali appears to concede this argument as he fails to address this point in opposition. Nor does plaintiff Ali provide any basis in opposition to support a cause of action for race discrimination.

Accordingly, the demurrer to the first cause of action is SUSTAINED for failure to state a claim.

Second Cause of Action: Retaliation in Violation of the FEHA

The second cause of action is claim for retaliation in violation of the FEHA.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

Government Code section 12940, subdivision (h) allows for protected conduct to take many forms. The statute “makes it an unlawful employment practice ‘[f]or any employer … to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1042.)

Also, “[s]tanding alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence (or facts) the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.” (Yanowitz, supra, 36 Cal.4th at p. 1046.) “[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Id. at p. 1047.)

That said, “[e]mployees need not explicitly and directly inform their employer that they believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046.) “ ‘[A]n employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1047.) “We do not believe employees should be required to elaborate to their employer on the legal theory underlying the complaints they are making, in order to be protected by the FEHA.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 474.) The relevant question is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner. (Yanowitz, supra, 36 Cal.4th at p. 1047; see Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1197 [“[T]he plaintiff must make some showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity.”].)

Defendant Cisco here persuasively argues that plaintiff Ali fails to allege sufficient facts showing he was retaliated against for engaging in protected activity. Like the prior pleading, plaintiff Ali does not identify the conduct that allegedly constitutes protected activity in the FAC. Instead, Ali alleges that defendant Cisco and its decision makers retaliated against him in the hiring and selection process. (See FAC at ¶ 98.) Consequently, Ali has not established that he engaged in a protected activity or that Cisco retaliated against him for engaging in that activity.

Accordingly, the demurrer to the second cause of action is SUSTAINED for failure to state a claim.

Leave to Amend

“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw, supra, at pp. 43-44.)

The Court here has already afforded plaintiff Ali an opportunity to amend and he has not yet been able to state a cause of action to overcome demurrer. Nor has plaintiff Ali made a formal request in his opposition for further leave to amend. He thus fails to carry his burden showing he can effectively amend his pleading to state a cause of action. Plaintiff Ali is not relieved of this burden because of his self-representation status in this action. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].) Therefore, having failed to carry this burden, the Court finds no legal basis for further amendment.

Accordingly, leave to amend is DENIED.

Motion to Strike Request for Punitive Damages

Given the Court’s ruling on demurrer, the motion to strike the request for punitive damages is MOOT.

Disposition

The demurrer to the first and second causes of action in the FAC is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim.

The motion to strike the request for punitive damages is MOOT.

After compliance with Rules of Court, Rule 3.1312, Defendant Cisco Systems, Inc. shall submit a judgment.

The Court will prepare the Order.