Chappell v. Apple Computer Incorporated

MOTION to Dismiss for Lack of Jurisdiction Defendant Apple Inc.'s Motion to Dismiss Plaintiff's First Amended Complaint Under Fed.R.Civ.P. 12

N.D. Cal.August 5, 2016

LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 Case No. No. CV 16-03101 LHK TODD K. BOYER, Bar No. 203132 tboyer@littler.com MARINA C. GRUBER, Bar No. 271542 mgruber@littler.com LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, California 95113.2303 Telephone: 408.998.4150 Facsimile: 408.288.5686 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LAMONT CARL CHAPPELL, Plaintiff, v. APPLE COMPUTER INCORPORATED, Defendant. Case No. CV 16-03101 LHK DEFENDANT APPLE INC.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6) Date: October 20, 2016 Time: 1:30 p.m. Dept.: Courtroom 8 (Fourth Floor) Judge: Hon. Lucy Koh Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 1 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 2. Case No. No. CV 16-03101 LHK NOTICE OF MOTION AND MOTION TO PLAINTIFF LAMONT CARL CHAPPELL, in pro se: Please take notice that on Thursday, October 20, 2016, at 1:30 p.m., or as soon thereafter as the matter can be heard, in Courtroom 8 (Fourth Floor) of the United States District Courthouse located at 280 South 1st Street, San Jose, California 95113, Defendant Apple Inc. (“Apple”) (erroneously sued as Apple Computer Incorporated) will and moves the Court for an order dismissing Plaintiff’s First Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Apple’s motion is brought under Rule 12(b)(1) on the grounds that the Court lacks subject matter jurisdiction because Plaintiff failed to timely exhaust his administrative remedies within the required statute of limitations period. Apple also brings this motion under rule 12(b)(6) on the grounds that Plaintiff’s First Amended Complaint fails to state facts sufficient to establish a viable claim upon which any relief can be granted. Apple’s motion is based upon this notice of motion and motion and the accompanying memorandum of points and authorities, any oral argument as may be presented at the hearing, on all other papers, records, and pleadings on file in this action, and on such additional evidence and argument as the Court may allow prior to and during the hearing on this motion. Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 2 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 3. Case No. No. CV 16-03101 LHK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION/SUMMARY OF ARGUMENT Defendant Apple Inc. filed a Motion to Dismiss Plaintiff’s Complaint on July 1, 2016. In response to Defendant’s Motion to Dismiss Plaintiff’s Complaint, Plaintiff filed a First Amended Complaint (“FAC”) on July 22, 2016. Despite his amendments to his pleading, Plaintiff’s FAC fails to establish that Plaintiff properly and timely exhausted his administrative remedies. In fact, Plaintiff’s FAC reaffirms that this lawsuit must be dismissed with prejudice because he failed to timely exhaust his administrative remedies prior to bringing this action. Plaintiff filed his administrative charge a full year after the alleged discriminatory conduct occurred, far beyond the 180-day time period within which Plaintiff was required to file his charge of discrimination. Plaintiff’s failure to file his claims within the prescribed time limits is fatal to his claims and this matter should be dismissed with prejudice. Even if Plaintiff’s lawsuit was not time-barred, Plaintiff has not alleged facts establishing a prima facie claim for an alleged unlawful failure to hire. For this additional reason, Apple’s motion to dismiss Plaintiff’s Complaint should be granted. Plaintiff makes many conclusory allegations regarding the “Jim Crow” system that Apple used for hiring in the Operations Division. From his sparse allegations, Plaintiff draws the meritless conclusion that Apple did not hire him because of his race. In order to allege a cause of action for a discriminatory failure to hire, Plaintiff must allege that: (1) he belongs to a protected class; (2) he was qualified for the position applied for; (3) he was rejected for the position despite his qualifications; and (4) the position remained open – i.e. the employer continued to seek applications from persons with comparable qualifications to the plaintiff. Here, as discussed in detail below, Plaintiff fails to allege facts to support these required elements necessary to establish a claim. Accordingly, as Plaintiff has failed to plead a cognizable cause of action, Apple respectfully requests this Court dismiss this action with prejudice. II. STATEMENT OF ISSUES TO BE DECIDED [L.R. 7-4(A)(3)] The following issues are raised by this motion: (1) whether Plaintiff’s complaint should be dismissed for lack of subject matter jurisdiction because Plaintiff failed to timely exhaust Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 3 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 4. Case No. No. CV 16-03101 LHK his administrative remedies under Title VII; and (2) whether Plaintiff’s complaint should be dismissed because he fails to allege facts sufficient to establish a prima facie case of discrimination under Title VII. III. STATEMENT OF ALLEGATIONS Plaintiff is African-American. (FAC, ¶¶1, 4.) Plaintiff alleges he reached out to Apple in August 2010 looking for a position in a “senior manager or director role.” (FAC, ¶10.) Plaintiff further alleges that he interviewed with an individual named Walter Freeman in August 2010. (FAC, ¶11.) Plaintiff was denied an employment position with Apple in August 2010. (FAC, ¶¶6, 11, 12.) Plaintiff alleges “Walter’s qualifications and experience were far inferior to mine, which was very obvious during the interview.” (FAC, ¶11.) Plaintiff further alleges that “[he] found out within a week that [he] was denied the position, even though [his] resume and experience far exceeded the Apple manager’s [he] interviewed with.” (FAC, ¶12.) Plaintiff alleges that after he was denied a position in Operations, he went back to talk with his contact at Apple about contracting with Apple as a supplier. (FAC, ¶20.) Plaintiff was again directed to talk to Mr. Freeman about a being a supplier, but he alleges that Mr. Freeman said he was not interested. (FAC, ¶20.) From these two interactions with Mr. Freeman, Plaintiff makes the unsupported sweeping and conclusory allegation that “Apple Inc. executives in the Operations division had a defacto [sic] Jim Crow system for black candidates and black companies, which were all funneled through Walter Freeman.” (FAC, ¶21.) Plaintiff alleges that he “continued to have discussions with Apple from August 2010 to August 2011, to address the discrimination alleged by Plaintiff against Apple Inc.’s Operations division under Jae Allen and Walter Freeman.” (FAC, ¶28.) Then, after a year of discussing the alleged discrimination that transpired in August 2010, “[o]n August 18, 2011 Apple Inc. human resources executive Pam Oyanagi officially ended discussions.” (FAC, ¶29.) Plaintiff then alleges “[f]ive day later on August 23, 2011 I filed my Charge of Discrimination with the U.S. Equal Employment Opportunity Commission, San Jose Local Office.” (FAC, ¶30.) The Equal Employment Opportunity Commission (“EEOC”) issued Plaintiff a right to sue letter on March 3, 2016. (FAC, ¶31; Exh. C.) Plaintiff filed this lawsuit on June 7, 2016. (FAC, ¶33.) Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 4 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 5. Case No. No. CV 16-03101 LHK IV. ARGUMENT A. Where, As Here, The Complaint Is Untimely And Lacks Sufficient Facts To Constitute A Cognizable Legal Theory, Dismissal Is Appropriate. Under Rule 12(b)(1), a district court must dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1); see also Lau v. Wong, 2013 U.S. Dist. LEXIS 71376, *13–14 (N.D. Cal., May 20, 2013) (“To establish subject matter jurisdiction over a Title VII claim, a plaintiff must exhaust his or her administrative remedies.”). “Subject matter jurisdiction can never be forfeited or waived and federal courts have a continuing independent obligation to determine whether subject-matter jurisdiction exists.” Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 976 (9th Cir. 2012) (internal quotation marks and citation omitted). To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed. R. Civ. P. 12(b)(6). Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s substantive merits, as a general rule “the court may not consider any materials beyond the pleadings in ruling on a 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (overruled on other grounds). However, in ruling on a motion to dismiss, “a court may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668, 688–689 (9th Cir. 2001). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (overruled in part on other grounds); see also Robertson v. Dean Witter Reynolds, In., 749 F.2d 530, 533–534 (9th Cir. 1984). While the Court must assume the complaint’s factual allegations are true, “legal conclusions need not be taken as true merely because they are cast in the form of factual allegations.” Silvas v. E*Trade Mortg. Corp., 421 F. Supp. 2d 1315, 1317 (S.D. Cal. 2006). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 5 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 6. Case No. No. CV 16-03101 LHK B. Plaintiff’s Complaint Should Be Dismissed Because He Did Not Timely Exhaust His Necessary And Jurisdictional Pre-Filing Administrative Remedies. Before Plaintiff could bring a civil action against Apple under Title VII, he was required to file a timely administrative charge with the EEOC or the California Department of Fair Employment and Housing (“DFEH”) and receive a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th. Cir. 2002). Generally, a plaintiff must file his/her administrative charge with the EEOC within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980) (finding that Congress “clearly intended” to encourage prompt processing of all charges of employment discrimination, and to protect employers from defending claims arising from employment decisions that are long past). An exception to the general rule exists when the alleged aggrieved party initially files an administrative charge with a state agency charged with enforcing anti-discrimination laws, such as the DFEH. See 42 U.S.C. § 2000e-5(e)(1). If the alleged aggrieved party initially files a charge with a state agency, the aggrieved party then has 300 days after the unlawful employment practice occurred within which to file a charge with the EEOC. Id. 1. The Alleged Discriminatory Conduct Occurred in August 2010 And Plaintiff Failed to File His Charge Within 180 Days From August 2010. Plaintiff clearly states the timing of the alleged discriminatory act: “Plaintiff LaMont Carl Chappell was denied employment with Apple Computer in August 2010 due to the separate and unequal Jim Crow style recruitment process for black applicants and companies within Apple’s Operations division.” (FAC, ¶6.) Plaintiff then filed a charge with the EEOC on August 23, 2011. (FAC, ¶30.) Plaintiff alleges that Apple refused to hire him based on his race. Refusal to hire is a discrete act of discrimination. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (holding that claims for discrete acts of discrimination—such as termination, refusal to hire or promote, denial of transfer—are barred if not filed within the 180-day or 300-day period . . . even if other, similar discriminatory acts occurred within that period). “A discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’ A party, therefore, must file a charge Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 6 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 7. Case No. No. CV 16-03101 LHK within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Morgan, 536 U.S. at 110. Since Plaintiff failed to file his charge within 180 days of the discrete act of discrimination, his claims fail and his FAC must be dismissed. 2. Plaintiff’s Discussions With Apple’s Human Resources Department Did Not Extend His Time For Filing A Charge With The EEOC. In an attempt to save his lawsuit from dismissal, Plaintiff has amended his complaint to now allege that “discussions” he had with Apple from August 2010 through August 2011 somehow tolled the time he was required to file a charge with the EEOC. That is, Plaintiff alleges that his “discussions” with Pam Oyanagi “officially ended” on August 18, 2011. (FAC, ¶29.) However, Plaintiff admits is that these “discussions” related to “the discrimination alleged by Plaintiff against Apple Inc.’s Operations division under Jae Allen and Walter Freeman.” (FAC, ¶28.) While his FAC does not clearly state that his time to file his EEOC charge was tolled or extended by his discussions with Apple through August 2011, that is in essence what he is claiming by alleging that Apple ultimately ‘ended discussions’ about the alleged refusal to hire that happened in August 2010 in August 2011. However, these discussions with Apple did not in any way extend Plaintiff’s time for exhausting his administrative remedies. Plaintiff’s injury was the refusal to hire, and he was obligated to file his EEOC charge 180 days from that injury occurring. See, e.g., Lukovsky v. City and County of San Francisco, 535 F.3d 1044 (9th Cir. 2008). In Lukovsky, the plaintiffs brought an action against the City and County of San Francisco under 42 U.S.C. sections 1981, 1983, and 1985, alleging refusal to hire based on racial preferencing. The court had to determine when the plaintiffs’ claims accrued—that is, when the actual “injury” occurred—for purposes of determining whether the claims were timely. “Plaintiffs argue that their claims did not accrue until they knew both that they were not being hired and of the Defendants’ alleged discriminatory intent. In other words, plaintiffs contend that knowledge of ‘injury’ includes both the actual injury (failure to hire) and the legal wrong (racial discrimination).” Lukovsky, 535 F.3d at 1048. Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 7 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 8. Case No. No. CV 16-03101 LHK The court in Lukovsky framed the determinative question as follows: “The real question, as noted above, is what do we mean by ‘injury,’ that is, what must the plaintiffs ‘discover’—that there has been an adverse action, or that the employer acted with discriminatory intent in performing that act?” 535 F.3d at 1048. As a matter of first impression, the court looked to cases involving the ADEA and Title VII were instructive since most employment law cases involve private employers. The court ultimately held that “[i]n this case, as the district court found, the claim accrued when the plaintiffs received notice they would not be hired.” [emphasis added] Id. at 1051. In support of this holding, the court cited Morgan, which held that “[d]iscrete acts such as . . . refusal to hire are easy to identify.” Id. (citing Morgan, 536 U.S. at 114). In Lukovsky, the plaintiffs claimed they were unaware of the alleged discrimination immediately upon being denied employment (which did not ultimately matter to the court). Plaintiff’s claim here is even weaker than that of the plaintiffs in Lukovsky. Here, Plaintiff can make no such claim. Immediately upon being denied employment by Apple in August 2010, Plaintiff engaged in “discussions” with Ms. Oyanagi in Human Resources regarding his discrimination allegations. (FAC, ¶¶28–29.) Plaintiff alleges that he “continued to have discussions with Apple Inc. from August 2010 to August 2011, to address the discrimination alleged by Plaintiff against Apple Inc.’s Operations division under Jae Allen and Walter Freeman.” [emphasis added] (FAC, ¶28.) Plaintiff was aware of the alleged injury—Apple’s refusal to hire him—in August 2010. Plaintiff alleges the discriminatory act occurred in August 2010. Therefore, Plaintiff’s charge filed in August 2011 was untimely and his FAC must be dismissed. 42 U.S.C. § 2000e-5(e)(1); see Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (reversing a jury verdict in favor of plaintiff and entering judgment in favor of defendant because Plaintiff’s EEOC charge was not timely filed, and finding that “[a] plaintiff must file a timely charge of discrimination with the EEOC as a prerequisite to maintaining an ADA action. See 42 U.S.C. § 12117(a) (incorporating the enforcement procedures set forth at 42 U.S.C. § 2000e-5). 42 U.S.C. § 2000e-5(e) requires that a complainant file a charge with the EEOC within 180 days of the last act of alleged discrimination . . . .”) (overruled on other grounds by Socop-Gonzalez v. INS, 272 F.3d 1176, 1194– 96 (9th Cir. 2001)). Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 8 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 9. Case No. No. CV 16-03101 LHK 3. Plaintiff’s Charge Does Not Benefit From the 300-Day Deadline, And Even If It Did, His Charge Would Still Be Untimely. In his FAC, Plaintiff has not amended his claims to allege facts establishing he is entitled to the benefit of the 300-day deadline rather than the 180-day deadline. Without any allegation that Plaintiff filed an administrative charge with the DFEH, Plaintiff cannot avail himself of the 300-day deadline. Even if Plaintiff had initially filed his administrative complaint with the DFEH and therefore extended the deadline to file an administrative charge with the EEOC to 300 days, any administrative charge is still untimely because the alleged discrimination occurred in August 2010. (FAC, ¶¶ 6, 11–12, 22, 28.) Even assuming the alleged conduct occurred on August 31, the last day of the month, Plaintiff had to file his administrative complaint with the EEOC by no later than June 27, 2011—300 days later. 42 U.S.C. § 2000e-5(e)(1). Because he admits in his FAC that he did not file his administrative complaint until August 23, 2011, it is clear that he did not timely exhaust his administrative remedies. (FAC, ¶30.) B.K.B., 276 F.3d at 1099 (“In order to establish subject matter jurisdiction over her Title VII claim, Plaintiff was required to exhaust her administrative remedies . . . ”). “Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge.” Jasch v. Potter, 302 F.3d 1092, 1094 (9th Cir. 2002). His lawsuit should therefore be dismissed without leave to amend because Plaintiff cannot amend his claims to remedy these statutory defects. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (holding that “a district court does not err in denying leave to amend where the amendment would be futile”); FDIC v. Conner, 20 F.3d 1376, 1385 (5th Cir. 1994) (amendment futile if statute of limitations has run.) For these reasons, Defendant’s Motion must be granted and Plaintiff’s FAC must be dismissed. C. Plaintiff’s Complaint Should Be Dismissed Because It Fails To Allege Facts Sufficient To Establish A Violation Of Title VII Based On Apple’s Refusal To Hire Him. Even if Plaintiff had timely filed his administrative charge, which he did not, Apple’s motion should still be granted because Plaintiff’s FAC is devoid of facts establishing Apple engaged in any unlawful discrimination. It is well established that a prima facie claim for an alleged Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 9 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 10. Case No. No. CV 16-03101 LHK discriminatory failure to hire requires the plaintiff plead facts showing that: (1) the plaintiff belongs to a protected class; (2) he was qualified for the position applied for; (3) he was rejected for the position despite his qualifications; and (4) the position remained open – i.e. the employer continued to seek applications from persons with comparable qualifications to the plaintiff. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Millsaps v. Pinal County Superior Court, 494 Fed.Appx. 821, 823 (9th Cir. 2012); Lesane v. Aloha Airlines, Inc., 226 Fed.Appx. 693, 698 (9th Cir. 2007). Plaintiff’s FAC fails to allege sufficient facts to establish his prima facie case. While Plaintiff may be able to establish the first three elements of his prima facie case, he has not and cannot allege facts establishing the position he applied for remained open and that Apple continued to interview candidates whose qualifications were comparable to his. Instead, Plaintiff makes the inflammatory allegation that “Apple Inc. executives in the Operations division had a defacto [sic] Jim Crow system for black candidates and black companies, which were all funneled through Walter Freeman.” (FAC, ¶21.) Plaintiff alleges that a “Jim Crow” system exists at Apple in various ways: “Applicants for the Operations division that were Caucasian, did not go through this Jim Crow system for hiring consideration;” “Plaintiff has knowledge of the hiring of Caucasian applicants into the Apple Inc. Operations division, who received job offers without being interviewed;” “Plaintiff has knowledge of Caucasian applicants being hired in the Apple Inc. Operations division due to the influence of a relative of those applicants who worked in human resources;” and “Plaintiff has knowledge of other black employees at Apple Inc.’s Operations division that were forced to quit because of discriminatory treatment from the executives in the Operations division.” (FAC, ¶¶22–26.) None of these allegations, even if true, establish that Plaintiff has met his prima facie burden of pleading that the position he applied for and was denied in August 2010 remained open. Apple’s motion to dismiss should be granted. Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 10 of 11 LITTLER MENDELSON, P.C. 50 W. San Fernando, 15th Floor San Jose, CA 95113.2303 408.998.4150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE INC.’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FIRMWIDE:141881385.1 043907.1276 11. Case No. No. CV 16-03101 LHK V. CONCLUSION. For the above stated reasons, Apple respectfully requests the Court grant its motion and dismiss Plaintiff’s First Amended Complaint with prejudice. Dated: August 5, 2016 /s/ Todd K. Boyer TODD K. BOYER LITTLER MENDELSON, P.C. Attorneys for Defendant APPLE INC. Case 5:16-cv-03101-LHK Document 23 Filed 08/05/16 Page 11 of 11