Lee, Jr. v. Rising Phoenix Holdings Corporation et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
WILFRED L. LEE, JR.
Plaintiff,
v.
RISING PHOENIX HOLDINGS
CORP., et al.,
Defendants.
Case No. 25-cv-00083-DKW-RT
ORDER (1) GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS; and (2) DENYING
PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE1
On November 24, 2025, Defendants Rising Phoenix Holdings Corporation,
TB Customer Relations LLC (“TBCR”), Brooke Fisher, and Melissa Burke moved
to dismiss pro se plaintiff Wilfred L. Lee’s Second Amended Complaint (“SAC”),
asserting that Lee, once again, fails to state a claim. Dkt. No. 69. Lee opposes the
motion, Dkt. No. 74, and Defendants have replied, Dkt. No. 77.
Having reviewed the Complaint, the parties’ briefs, and the record generally,
the Court agrees that dismissal is appropriate. Accordingly, the motion to dismiss is
GRANTED with prejudice and without leave to amend, as explained below.
1 Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing.
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FACTUAL & PROCEDURAL BACKGROUND
I. 	The Second Amended Complaint
The following facts are taken from Lee’s SAC and various exhibits Lee
attached to his pleadings. Dkt. No. 68.2
TBCR, a Hawai‘i-based company, provides disaster management services,
including for the August 2023 Lahaina, Maui wildfires. 	Id. ¶ 7. Rising Phoenix is
TBCR’s parent company. Id. ¶ 6. On August 28, 2023, Lee, an African-American
male, accepted a call center supervisor position with TBCR. 	Id. ¶ 29. In this role,
Lee reported directly to Fisher, TBCR’s project manager. 	Id. ¶ 34. 	Lee’s duties
included “managing agents and maintaining regulatory compliance,” and his ability
to perform his work was reliant upon continued access to his Microsoft Teams
account, timekeeping software, company email, and company-issued laptop. 	Id. ¶
30.
On November 7, 2023, Lee notified TBCR and Rising Phoenix that he
suffered from Computer Vision Syndrome, an alleged disability which limited his
ability to work on a computer for extended periods. 	Id. ¶ 45. Lee asked that he be
allowed to use the Microsoft Teams mobile app to conduct meetings and monitor
2 The Court has considered the exhibits when evaluating Defendants’ motion because Lee not only
refers to them and their contents within his allegations but also attaches the exhibits to his
SAC. 	See U.S. v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003) (holding that courts may
incorporate materials outside the complaint by reference when they are referred to by the plaintiff
and “form[] the basis of the plaintiff’s claim”).
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agents in lieu of his work computer, “to lessen eyestrain.” Dkt. No. 68 ¶ 49. TBCR
requested that Lee provide a completed certification form from his health care
provider affirming the existence of his disability and the necessity of his proposed
accommodation. 	Dkt. No. 68-2 at 2 (pdf pagination). 	Lee’s doctor, however,
declined to approve the accommodation that he requested because “using [a] mobile
device is the same as using [a] computer.”3 	Instead, Lee’s doctor recommended
regular breaks from screentime. Dkt. No. 69-5 at 2. On November 16, 2023, TBCR
denied the accommodation request, stating that Lee’s doctor had not certified that
using the mobile app was “a reasonable accommodation” and encouraging Lee to
instead “speak with your supervisor about using Teams” or have his doctor certify
that taking regular breaks was a viable alternative. Dkt. No. 68-2 at 6.
On November 20, 2023, Fisher sent an email to TBCR supervisors in which
she warned about discrepancies in employee time records and unexcused absences
from work. 	Id. ¶ 38. The email, which Lee attaches to his SAC, does not specify
which employees, if any, were the target of Fisher’s warnings, see Dkt. No. 68-5,
but Lee alleges that they were Genierose Piho and Daphne Henion, “non-African
American 	employees” 	who 	were 	“submitting 	inconsistent 	time 	records” 	and
3 While Lee provides copies of his accommodation request and TBCR’s email responses, see Dkt.
No. 68-2, he does not include the email from his doctor’s office, which Defendants instead attach
to their motion to dismiss. 	Dkt. No. 69-5. 	The Court considers the doctor’s email because its
contents were referred to within the accommodation-request emails that Lee provided as part of
his SAC. See Ritchie, 342 F.3d at 907–08.
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“frequently absent and unresponsive for 2 hours or more during work hours,” Dkt.
No. 68 ¶¶ 38, 42–43. Despite this, Piho and Henion were not disciplined and instead
received promotions over Lee. Id. ¶ 43.
On November 21, 2023, Lee submitted a disability and race discrimination
complaint to Fisher, alleging that Fisher had “a problem working with African
American Men.” 	Id. ¶ 52. 	On November 30, 2023, Lee submitted an additional
disability and race discrimination complaint, alleging disparate treatment between
himself and non-African American employees. 	Id. ¶ 53. 	On December 1, 2023,
Burke—an HR manager for Rising Phoenix—placed Lee on indefinite suspension
and demoted him to a contact center agent, id. ¶¶ 54–55, despite Lee having faced
no disciplinary issues at work in the prior three months, id. ¶¶ 32–33.
On December 8, 2023, Defendants reinstated Lee. Id. ¶ 58. Burke, however,
directed Lee to use his personal mobile phone, email account, and laptop to conduct
his duties, as opposed to the “dedicated, secure equipment” assigned to Piho and
Henion, and blocked Lee’s access to the company Teams account and timesheet
system. 	Id. ¶¶ 56–58. 	Lee claims this decision, along with his suspension and
demotion, were a “pattern of severe disciplinary and retaliatory actions” taken in
response to Lee’s accommodation request and discrimination complaints. Id. ¶ 59.
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II. 	Procedural History
On February 25, 2025, Lee filed his Complaint, followed by his First
Amended Complaint (“FAC”) in April 2025. Dkt. Nos. 1, 13. On October 27, 2025,
the Court dismissed the FAC with leave to amend. Dkt. No. 66. On November 10,
2025, Lee filed the SAC, asserting the following claims: (1) disability discrimination
in violation of the ADA against TBCR and Rising Phoenix (the “Corporate
Defendants”); (2) retaliation in violation of the ADA against TBCR; (3) retaliation
in violation of Title VII against TBCR and Rising Phoenix; and (4) retaliation in
violation of 42 USC § 1981 against all Defendants (“Counts 1–4”). Dkt. No. 68.
On November 24, 2025, Defendants moved to dismiss the SAC, arguing that
Lee failed to state a claim or, alternatively, failed to exhaust claims relating to his
demotion.4 Dkt. No. 69. Lee opposes, responding that his claims are fully exhausted
and adequately pled. 	Dkt. No. 74. 	Lee also requested judicial notice of email
messages and Teams notifications he claims support his opposition. 	Dkt. No. 76.
Defendants’ reply asserts that Lee failed to meaningfully respond with respect to the
sufficiency of his pleadings, and Defendants’ oppose Lee’s request for judicial
notice. Dkt. Nos. 77, 83.
4 The Court does not address Defendants’ exhaustion arguments because, as explained herein, the
motion to dismiss is granted for failure to state a claim.
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.” 	Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” 	556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In addition, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” 	Id. 	Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 	Id. 	Factual allegations that only
permit the court to infer “the mere possibility of misconduct” do not show that the
pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.
The Court liberally construes a pro se pleading. Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987). However, the Court cannot act as counsel for a pro se
litigant, such as by supplying the essential elements of a claim. Pliler v. Ford, 542
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U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982).
DISCUSSION
Before the Court is Defendants’ motion to dismiss, Dkt. No. 69, and Lee’s
request for judicial notice, Dkt. No. 76. The Court addresses each below.
I. 	Count 1: Failure to Accommodate
Lee’s first count is an ADA disability-discrimination claim against TBCR and
Rising Phoenix, based on the Corporate Defendants’ refusal to approve Lee’s
November 2023 accommodation request. Dkt. No. 68 ¶¶ 65–77.
Discrimination under the ADA includes the failure to make a “reasonable
accommodation”. 	42 U.S.C. § 12112(b)(5)(A). 	A plaintiff establishes a prima
facie case of failure to accommodate under the ADA by showing: (1) they are
disabled; (2) they are a qualified individual able to perform the essential duties of
the 	job 	with 	reasonable 	accommodations; 	and 	(3) 	they 	suffered 	an 	adverse
employment action because of the disability. Samper v. Providence St. Vincent Med.
Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). 	ADA discrimination claims are
“evaluated under a but-for causation standard,” meaning that the plaintiff “must
show that the adverse employment action would not have occurred but for the
disability.” Murray v. Mayo Clinic, 934 F.3d 1101, 1105–07 (9th Cir. 2019).
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After an employer becomes aware of an employee’s disability, the employer
and 	employee 	must 	engage in 	a good 	faith 	“interactive 	process” to 	find 	a
reasonable accommodation, which “requires: (1) direct communication between the
employer and employee to explore in good faith the possible accommodations; (2)
consideration of the employee’s request; and (3) offering an accommodation that is
reasonable and effective.” 	U.S. Equal Emp’t Opportunity Comm’n v. UPS Supply
Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010) (quotation marks and citation
omitted). “Liability for failure to provide reasonable accommodations ensues only
where the employer bears responsibility for the breakdown in the interactive
process.” 	Zivkovic 	v. 	S. 	Cal. 	Edison 	Co., 	302 	F.3d 	1080, 	1089 	(9th 	Cir.
2002) (internal quotation marks omitted).
Here, Lee claims that he suffered from Computer Vision Syndrome, and that
the Corporate Defendants failed to accommodate his disability. 	Dkt. No. 68 ¶ 68.
Lee further claims that the Corporate Defendants “failed to engage in any further
good-faith interactive process” after denying his accommodation. 	Id. ¶ 50. 	In
support of his argument, Lee provides an email chain in which the Corporate
Defendants denied his request to use his cellular phone, rather than his computer,
while working. 	Dkt. No. 68-2. 	Lee fails to acknowledge, however, that this
evidence fatally undercuts the plausibility of his claim.
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The emails Lee provides indeed show that the Corporate Defendants rejected
Lee’s proposed accommodation. 	Id. at 6. But they also reveal the reason: because
Lee’s own doctor declined to endorse that accommodation as reasonable. Id. When
asked to certify Lee’s accommodation request, his doctor responded that using a
cellular phone would simply cause the same eyestrain as using a computer and
instead suggested that regular breaks might reduce Lee’s discomfort. Dkt. No. 69-5
at 2. Given that Lee’s own doctor stated that switching from a computer screen to a
cellular phone screen would not be effective, Lee’s proposed accommodation
involving the switch was plainly not a reasonable one. 	See Humphrey v. Mem.
Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (“An appropriate reasonable
accommodation must be effective in enabling the employee to perform the duties of
the position.”).
The claim that the Corporate Defendants failed to engage in a good-faith
interactive process is similarly belied by the evidence Lee provides. After rejecting
Lee’s accommodation, the Corporate Defendants did not simply terminate the
discussion. 	Rather, they told Lee that he could instead take regular breaks from
screentime if that accommodation was certified by his healthcare provider. Dkt. No.
68-2 at 6. 	There is no indication in the record that Lee followed up with this
proposal—in other words, if there was a breakdown in the interactive process, the
evidence does not point the blame at Defendants. 	Zivkovic, 302 F.3d at 1089. Lee
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certainly might have preferred his original proposal to switch to a cellular phone, but
the Corporate Defendants were not obliged to provide him the exact accommodation
he requested. 	Id. (“An employer is not obligated to provide an employee the
accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.”)
In short, the evidence Lee himself provides does not support the plausibility
of his failure-to-accommodate claim. 	The Court therefore grants the motion to
dismiss as to Count 1.
II. 	Count 2: ADA Retaliation
To allege retaliation under the ADA, a plaintiff must establish “[(1)] that he
or she was engaged in a protected activity, [(2)] that he or she suffered an adverse
action, and [(3)] that there is a causal link between the two.” T.B. ex rel. Brenneise
v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015) (internal quotation
marks omitted). An adverse employment action is any action “reasonably likely to
deter employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d
1234, 1243 (9th Cir. 2000). An ADA retaliation claim requires a plaintiff to show
his disability was the but-for cause of the alleged adverse action. See T.B., 806 F.3d
at 473 (finding that the “more stringent” but-for causation standard applies to ADA
retaliation claims).
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Lee asserts a claim of ADA retaliation against TBCR, claiming that he was
suspended and demoted as a result of his November 2023 accommodation request.
Dkt. No. 68 ¶¶ 74–82. Lee points to two factors supporting his retaliation claim: the
lack of adverse actions against similarly-situated, non-disabled employees and
temporal proximity. Id. ¶ 79. Because temporal proximity alone is not determinative
of the viability of a retaliation claim,5 the Court focuses on Lee’s comparator
argument.
Lee argues that his suspension and demotion were for retaliatory reasons
because other, non-disabled employees with poor work performances were not
disciplined. 	Id. ¶¶ 43, 79. The ADA permits plaintiffs to establish discrimination
through evidence of favorable treatment towards similarly-situated, non-disabled
employees, Marziano v. Cnty. of Marin, 2010 WL 3895528, at *7 (N.D. Cal. Oct. 4,
2010), but a plaintiff must do so with non-conclusory allegations, see Johnson v.
Target, 2024 WL 579075, at *3 (D. Ariz. Feb. 13, 2024). The obligation to include
non-conclusory allegations extends to showing that comparators are similarly
situated “in all material respects.” 	Moran v. Selig, 447 F.3d 748, 755 (9th Cir.
2006).6 “[I]ndividuals are similarly situated when they have similar jobs and display
5Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003); Ly v. Paragon Tech. & Dev. Inc.,
2019 WL 4394536, at *5 (D. Ariz. Sept. 13, 2019) (“[M]ere temporal proximity to an adverse
action doesn’t necessarily make a claim plausible”).
6 The standards for discrimination and retaliation claims under the ADA and Title VII are the
same; as a result, cases analyzing both statutes are instructive. See E.E.O.C. v. Luce, Forward,
Hamilton & Scripps, 303 F.3d 994, 1004–05 (9th Cir. 2002).
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similar conduct,” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003),
including conduct that is of “comparable seriousness,” Norton v. PHC-Elko, Inc., 46
F. Supp. 3d 1079, 1088 (D. Nev. 2014), aff’d, 673 F. App’x 714 (9th Cir. 2016).
Lee compares his conduct to that of Piho and Henion, two non-disabled
TBCR 	supervisors 	who 	repeatedly 	filed 	inconsistent 	timesheets 	and 	took
unapproved absences from work. 	According to Lee, despite these faults, neither
comparator faced disciplinary issues like he did. Dkt. No. 68 ¶¶ 32–33, 38, 42–43.
In fact, Lee asserts that Piho and Henion were promoted. Id. ¶ 43.
The 	Court 	first 	observes 	that 	the 	facts 	underlying 	Lee’s 	comparator
allegations are not supported by the evidence on which he relies. Lee claims that he
knew Piho and Henion were committing timesheet violations because of the
November 20, 2023 email sent by Fisher to multiple supervisors, in which she warns
about time record discrepancies. Dkt. No. 68, ¶ 38. But this email does not specify
which supervisors were involved in the discrepancies or even if the culprits were
supervisors at all. 	Id. at Exh. J; see Dkt. No. 68-5. 	Although the Court must
generally take Lee’s pleadings as true for purposes of a Rule 12 motion, it is not
obliged to accept allegations that they are conclusory or contradicted by the record.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Moreover, even if the Court accepted Lee’s allegations regarding Piho and
Henion, there remains a larger problem. 	As Defendants point out, Lee omits
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important details from his SAC. 	Dkt. No. 69-1 at 16–17. 	In his FAC, Lee stated
that the reasons for his demotion and suspension—the retaliatory conduct he now
complains of—were “timekeeping inaccuracies and complaints from agents.”7 Dkt.
No. 13, ¶¶ 80, 96 (emphasis added). His SAC removes the “complaints from agents”
reference, presumably to bring him in line with his two comparators.
Defendants ask the Court to take judicial notice of these earlier-filed pleadings
allegations, despite Lee having filed the operative SAC. 	Dkt. No. 69-1 at 6 n.2.
Typically, an amended complaint supersedes earlier versions. 	See Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). But although “there is nothing in the
Federal Rules of Civil Procedure to prevent a party from filing successive pleadings
that make inconsistent or even contradictory allegations,” PAE Gov’t Servs., Inc. v.
MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007), courts have drawn a distinction
between 	contradictory 	allegations 	and 	omitted 	allegations. 	Where 	a 	party
“omits previously-pled material information that harms [the party’s] case,” courts
treat those omitted allegations “as judicial admissions.” 	Jackson v. Loews Hotels,
Inc., 2019 WL 6721637, at *3 (C.D. Cal. July 24, 2019) (emphasis in original) (citing
Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (“Factual
7 Specifically, 	an 	agent 	complained 	that 	Lee 	had 	unfairly 	“questioned 	her 	training 	and
competency,” which prompted Lee’s superiors to warn him about his “tone in chat-based
interactions with female agents.” 	Dkt. No. 13 ¶¶ 134–35. 	Lee argues the warning was
“disproportionate and unwarranted,” but does not deny that the complaints were made or that his
conduct was as-described. Id.
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assertions in pleadings and pretrial orders, unless amended, are considered judicial
admissions conclusively binding on the party who made them.”)); see also Huey v.
Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996) (holding that although defendant
“amended its answers,” the allegations contained in the original answer “are still
admissible” and could be considered by the court).
With this in mind, Lee cannot sidestep his prior admission. Comparison to a
similarly-situated employee is dependent upon the comparator being similar in all
material respects, including conduct. 	Vasquez, 349 F.3d at 641. 	Lee’s previous
allegations make such a comparison impossible. Piho and Henion were, according
to Lee, filing inaccurate timesheets. Dkt. No. 68 ¶¶ 38, 42–43. But Lee previously
alleged that he was disciplined not only for timekeeping errors, but for complaints
from the customer service agents whom he supervised at the call center. Dkt. No.
13, ¶ 80. There is no indication in the record that Piho and Henion faced the same
agent complaints and, therefore, no basis to say that Lee’s conduct was “of
comparable seriousness.” 	Norton, 46 F. Supp. 3d at 1088. 	The Court made this
deficiency clear to Lee in its Order dismissing the FAC. See Dkt. No. 66 at 17–18,
28. 	Rather than curing his pleadings, Lee elected to simply drop the details
damaging to his claims. Such an omission, however, offers him no refuge. Lee’s
ADA retaliation claim is dismissed.
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III. 	Title VII Retaliation
An employer may not discriminate against an employee because the employee
has opposed an employment practice made unlawful by Title VII. 	See 42 U.S.C.
§ 2000e-3(a) (“It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any practice
[prohibited by Title VII] . . . or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title
VII].”); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“Title
VII’s anti-retaliation provision forbids employer actions that discriminate against an
employee . . . because he has opposed a practice that Title VII forbids or has made a
charge, testified, assisted, or participated in a Title VII investigation, proceeding, or
hearing.” (citations and quotation marks omitted)).
To state a Title VII retaliation claim, a plaintiff must assert (1) that he was
engaged in a protected activity opposing an unlawful employment practice; (2) that
he suffered an adverse employment action, and (3) that there was a causal link
between his activity and the adverse employment action. Freitag v. Ayers, 468 F.3d
528, 541 (9th Cir. 2006). As with ADA retaliation, the plaintiff must show “that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer.” Univ. of Tex. Southwestern Med. Ctr. v. Nassar,
570 U.S. 338, 360 (2013) (concluding that a plaintiff making a retaliation claim
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under Title VII “must establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer”).
Lee asserts that his demotion and suspension by the Corporate Defendants
were retaliation for his racial discrimination complaints, in violation of Title VII.
Dkt. No. 68, ¶¶ 83–89. 	However, beyond temporal proximity, the sole allegation
Lee provides to show causation is that Piho and Henion—who were not African-
American—were 	not 	disciplined 	in 	the 	manner 	Lee 	was 	despite 	their 	own
timekeeping discrepancies. Id., ¶ 88. For the same reasons the Court provided above
with respect to ADA retaliation, the comparison to Piho and Henion is unavailing.
See Discussion, Section II, supra. Piho and Henion might have committed similar
timekeeping violations, but the record does not show that they were subject to
complaints from their subordinates as Lee was. These employees thus cannot serve
as comparators for the purpose of establishing but-for causation. See Al-Raheem v.
Covenant Care, 2012 WL 4863711, at *4 (E.D. Cal. Oct. 12, 2012) (“The
cornerstone of the inference of racial discrimination being the cause of disparate
treatment is the similarity between the [p]laintiff and a larger group of workers who
are facing the same situation.” (emphasis added)).8 In the absence of such a showing
8 Lee’s FAC mentions another African-American supervisor who “engaged in comparable or
greater timekeeping deficiencies” and yet was not disciplined. Dkt. No. 13, 	¶ 52. Defendants
argue that the Court should consider this other employee, despite Lee having omitted the allegation
from his SAC. 	Dkt. No. 69-1 at 6–7. 	The Court notes this allegation, just as it agreed to take
notice of the agent complaints Lee similarly omitted, see Discussion, Section II, supra; Jackson,
2019 WL 6721637, at *3.
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of causation, Lee’s Title VII retaliation claims must be dismissed. 	See Petersen v.
Cnty. of Stanislaus, 2012 WL 4863800, at *4 (E.D. Cal. Oct. 12, 2012) (dismissing
both Title VII and ADA claims for “fail[ing] entirely to allege a causal connection
between [p]laintiff’s protected reports and protestations and the adverse actions
taken against her, beyond [] conclusory statement[s]”).
IV. 	Section 1981 Retaliation
Section 1981 “prohibits discrimination in the ‘benefits, privileges, terms and
conditions’ of employment.” Surrell v. California Water Serv. Co., 518 F.3d 1097,
1103 (9th Cir. 2008) (quoting, in part, 42 U.S.C. § 1981(b)). 	“When analyzing
[Section] 1981 claims,” courts “apply the same legal principles as those applicable
in a Title VII . . . case.” 	Surrell, 518 F.3d at 1103 (internal quotation marks and
citations omitted). 	Retaliation under Section 1981 therefore follows the same
standards for causation as Title VII: “[t]he protected activity must be the but-for
cause of the adverse employment action.” Romero v. Tucson Unified Sch. Dist., No.
2022 WL 1491104, at *5 (D. Ariz. Apr. 22, 2022), report and recommendation
adopted, 2022 WL 1487042 (D. Ariz. May 11, 2022).
A plaintiff asserting a retaliation claim under Section 1981 must “allege facts
that, taken as true, would plausibly show that [he] was retaliated against either
because [he] made a complaint of race-based discrimination or because [he]
‘complained about a violation of another person’s’ right to be free from such
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discrimination.” Jones v. Rising Phoenix Holdings Corp., 2025 WL 2802180, at *8
(D. Haw. Oct. 1, 2025) (quoting CBOCS Wests, Inc. v. Humphries, 553 U.S. 442,
445 (2008)). 	“A claim for individual liability under [Section] 1981 requires some
affirmative 	link 	to 	causally 	connect 	the 	actor 	with 	the 	discriminatory
action.” 	Elmatboly v. Ariz. State Univ., 2009 WL 10674070, at *6 (D. Ariz. Apr.
30, 2009) (internal quotations omitted). “A claim alleging individual liability under
[Section] 1981 must therefore be predicated on the actor’s personal involvement in
the adverse decision.” 	Takieh v. Banner Health, 515 F. Supp. 3d 1026, 1048 (D.
Ariz. 2021), aff’d, No. 21-15326, 2022 WL 474170 (9th Cir. Feb. 16, 2022) (internal
quotation marks omitted).
Lee asserts retaliation claims pursuant to Section 1981 against all Defendants.
The Court will first address the Corporate Defendants, then Fisher and Burke (the
“Individual Defendants”).
a. 	Corporate Defendants
As provided above, the Court has determined that Lee failed to state a
retaliation claim against the Corporate Defendants under either the ADA or Title
VII. 	See Discussion, Sections II and III, supra. 	Because Section 1981 retaliation
claims follow the same framework, Lee’s Section 1981 retaliation claims meet the
same fate. 	See Jones, 2025 WL 2802180, at *9 (analyzing Title VII and Section
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1981 retaliation and discrimination claims under the same standards and dismissing
on the same grounds).
b. 	Individual Defendants
As for the Individual Defendants, Lee claims that Fisher and Burke both
retaliated against him, using his demotion and suspension as punishment for his
racial discrimination complaint. 	Dkt. No. 68 ¶¶ 94–95. 	Lee alleges that Fisher
“exercised authority over the disciplinary process” and was the decision-maker who
promoted Piho and Henion while disciplining Lee. 	Id. ¶ 94. 	Burke, meanwhile,
“personally implemented the demotion” and “refused to correct the denial of
essential system access after reinstatement.” Id.
These claims must be dismissed for the same reason as those against the
Corporate Defendants: failure to plausibly allege that Lee’s race-based complaint
was the but-for cause of Fisher and Burke’s actions. 	Jones, 2025 WL 2802180, at
*5. 	The only evidence of a retaliatory motive that Lee provides is that Piho and
Henion were not disciplined as Lee was. But—as the Court has already explained—
this assertion is not enough to state a claim. 	See Discussion, Sections II and III,
supra. Piho and Henion did not face the same agent complaints that Lee did, and so
neither is a sufficiently similar comparator. Vasquez, 349 F.3d at 641. Lee otherwise
provides no allegations suggesting a racial or retaliatory motive for Fisher and
Burke’s actions, outside of baldly stating that such a motive existed—conclusory
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assertions that cannot save his claims. Ashcroft, 556 U.S. at 678; see also Bastidas
v. Good Samaritan Hosp. LP, 774 F. App’x 361, 363 (9th Cir. 2019) (“Though the
[complaint] is replete with allegations that white physicians were treated differently
than plaintiff, these bare allegations do not sufficiently point to underlying facts to
be entitled to the presumption of truth.” (internal quotation marks omitted)).
V. 	Leave to Amend
When a complaint fails to state a plausible claim, leave to amend should be
given when “justice so requires.” Fed.R.Civ.P. 15(a)(2). However, justice does not
require leave to amend when (1) it would prejudice an opposing party, (2) it is sought
in bad faith, (3) it would produce an undue delay in litigation, (4) it would be futile,
or (5) there has been repeated failure to cure a deficiency. 	Abagninin v. AMVAC
Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp. v.
Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
Here, the Court has already given Lee multiple opportunities to amend his
pleadings. See Dkt. Nos. 13, 66, 68. In its prior order, the Court informed Lee of a
number of deficiencies that plagued his FAC. Dkt. No. 66. Rather than amend his
pleadings to cure those problems, Lee opted to obscure them by selectively omitting
damaging facts while keeping the core of his complaint intact. Because the Court
already afforded Lee the chance to fix his complaint, it declines to extend that leave
again. See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)
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(“[T]he district court's discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.”). The SAC is therefore dismissed
with prejudice and without leave to amend.
VI. 	Request for Judicial Notice
Lee requests that the Court take judicial notice of a chain of emails and Teams
messages between himself and Burke, which he claims will go to show the
“sequence of events” prior to his reinstatement and reinforce the allegations of his
SAC. Dkt. No. 76 at 2. Under Fed. R. Evid. 201, a court may take judicial notice
of facts that are “not subject to reasonable dispute” because it is either (1) “generally
known within the trial court’s territorial jurisdiction” or (2) capable of accurate and
ready determination by resort to sources “whose accuracy cannot reasonably be
questioned.”
Judicial notice is not warranted here. 	First, the relevance of the proposed
documents is not clear. The messages show merely that meetings between Lee and
human resources officers took place, but do not appear to be material to the issues
of retaliation or causation which are central to the motion to dismiss. 	See Santa
Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir.
2006) (declining to take judicial notice of irrelevant information); Holley v. Tripp,
2024 WL 3966444, at *4 (D. Idaho Aug. 27, 2024) (declining to take judicial notice
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of facts that bore “no discernible relevance to the issues raised in the motion to
dismiss”).
Moreover, 	the 	proposed 	facts 	are 	not 	appropriate 	for 	judicial 	notice.
Typically, judicial notice is used to take heed of documents “already in the public
record,” such as those filed in other courts, published by agencies, or made readily
available on websites. Minor v. FedEx Off. & Print Servs., Inc., 78 F. Supp. 3d 1021,
1027 (N.D. Cal. 2015) (collecting cases). The email chain and Teams messages Lee
provides do not contain matters either generally known within the Court’s territorial
jurisdiction or capable of determination by accurate sources. 	See id. (denying
request for judicial notice of an email chain). Even if they did, the Court also cannot
take notice of facts which are open to reasonable dispute. Fed.R.Civ.P. 201.
Accordingly, Lee’s request for judicial notice is denied.
CONCLUSION
For the reasons set forth herein, Defendants’ Motion to Dismiss Second
Amended Complaint, Dkt. No. 69, is GRANTED, and the Second Amended
Complaint is DISMISSED WITH PREJUDICE. Lee’s Request for Judicial Notice,
Dkt. No. 76, is DENIED.
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The Clerk is instructed to enter Judgment pursuant to this Order in favor of
Defendants. The Clerk is then instructed to close this case.
IT IS SO ORDERED.
DATED: February 17, 2026 at Honolulu, Hawai‘i.
Wilfred Lee, Jr., v. Rising Phoenix Holdings Corp., et al; Civil No. 25-00083
DKW-RT; ORDER (1) GRANTING DEFENDANTS’ MOTIONS TO
DISMISS; and (2) DENYING PLAINTIFF’S REQUEST FOR JUDICIAL
NOTICE
___________________________
Derrick K. Watson
Chief United States District Judge
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