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

1
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 GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS1
On May 15, 2025, Defendant Kristi Noem, Secretary of the Department of
Homeland Security (“DHS”), filed a motion to dismiss pro se plaintiff Wilfred L.
Lee’s First Amended Complaint. Dkt. No. 35. On June 23, 2025, Defendants Rising
Phoenix Holdings Corporation, Tidal Basin Group, and TB Customer Relations
LLC2 (the “Corporate Defendants”) filed a separate motion to dismiss. Dkt. No. 39.
Finally, on June 23, 2025, Defendants Brooke Fisher, Traci Thompson, Melissa
1 Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing.
2 Lee names Tidal Basin Group as a separate Defendant but, as the Corporate Defendants point out,
“Tidal Basin Group” is merely a trade name of Defendant TB Customer Relations, LLC. See Dkt.
No. 39-1 at 20. Lee agrees with this: in his Amended Complaint, Lee states that the “correct legal
entity is TB Customer Relations, LLC” and that he merely uses the name Tidal Basin Group “for
continuity.” 	Dkt. No. 13 at 3 n.1. 	Because Lee acknowledges that Tidal Basin Group and TB
Customer Relations are one and the same, and uses them interchangeably in his Amended
Complaint, the Court treats them as a single Defendant for the purposes of the motion to dismiss
and will refer to them collectively as “Tidal Basin.”
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 1 of 37
PageID.<pageID>

2
Burke, Tiffany Niles, and Lori Nichols (the “Individual Defendants”) moved to
dismiss as well. Dkt. No. 43. The three motions have been fully briefed, with Lee
opposing all of them.3 Dkt. Nos. 37, 50, 52.
Having reviewed the First Amended Complaint, the parties’ briefs, and the
relevant 	legal 	authorities, 	the 	Court 	agrees 	that 	dismissal 	is 	appropriate.
Accordingly, the motions to dismiss are GRANTED with partial leave to amend, as
described below.
BACKGROUND
I. 	The First Amended Complaint4
FEMA contracted with Tidal Basin to provide disaster management services,
including for the Lahaina, Maui fires that occurred in August 2023. Rising Phoenix
is Tidal Basin’s parent company. In August 2023, Tidal Basin hired Lee to remotely
supervise Maui fire call center operators. 	In this role, Lee reported to Thompson.
Dkt. No. 13 ¶¶ 16–17, 19, 29, 35.
In October 2023, Lee inquired with Thompson about an assistant manager
position. Id. ¶ 36. Lee was ignored, whereas other temporary supervisors—such as
Fisher, a white female—were promoted to managerial roles above Lee. 	Id. ¶ 38.
3 The three groups of Defendants have stated no opposition to each other’s motions to dismiss.
See generally Dkt. No. 45.
4 The factual background is derived from Plaintiff’s Amended Complaint, see generally Dkt. No.
13, with the facts therein assumed to be true for purposes of these Fed.R.Civ.P. 12 motions only.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 2 of 37
PageID.<pageID>

3
Lee, who is an African-American male, alleges this was due to racial discrimination.
Id. ¶ 15, 37.
Lee also notified Thompson and Niles (both employees of Tidal Basin or
Rising Phoenix) of a “vision impairment caused by prolonged computer screen use,”
for which he requested an unspecified accommodation. 	Id. ¶¶ 45–47. Tidal Basin
and Rising Phoenix denied the accommodation request “without engaging in
meaningful discussions.” 	Id. ¶¶ 47–49. Following Lee’s accommodation request,
Thompson “subjected Plaintiff to retaliatory treatment,” including greater scrutiny
on his job performance, micromanagement, and “[u]nfounded allegations.” 	Id. ¶¶
59–64.
By November 2023, one of the operators whom Lee supervised filed an
internal complaint against him, claiming that Lee had unfairly “questioned her
training and competency.” 	Id. ¶ 134. In response, Fisher cautioned Lee about his
“tone in chat-based interactions with female agents”—concerns Lee insists were
“disproportionate and unwarranted.” 	Id. ¶ 135. 	Fisher also began “scrutinizing
Plaintiff’s 	work 	at 	an 	excessive 	level,” 	making 	“abrupt 	and 	condescending
directives,” and “required Plaintiff to immediately report task conditions,” none of
which were demanded of non-African American employees. Id. ¶ 150. Fisher also
denied support to Lee’s team and undermined his authority by giving contradictory
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 3 of 37
PageID.<pageID>

4
instructions to Lee’s agents and refusing to give Lee “equal managerial discretion.”
Id. ¶¶ 74, 76.
Around November 2023, Lee “personally observed widespread timekeeping
fraud” 	by 	other 	employees, 	but 	Thompson 	and 	Fisher 	“selectively 	enforced
disciplinary action” against Lee “based on race.” Id. ¶¶ 68–69.
On November 21, 2023, Lee filed an EEOC complaint against Fisher. 	Dkt.
No. 13 ¶ 89. Lee states that he alleged “discriminatory treatment . . . in violation of
Title VII” within this complaint, id., but does not specify the exact claims or how
the Fisher complaint was resolved. On the same date, Lee filed an EEOC complaint5
against Rising Phoenix,6 claiming disability and racial discrimination and retaliation.
5 Lee’s First Amended Complaint states only that he filed a “charge of discrimination” with the
EEOC in November 2023, but fails to elaborate on which Defendants were the subject of this
complaint or what claims were presented. Dkt. No. 13 ¶ 9. The Corporate Defendants, however,
describe this complaint as presenting racial discrimination claims against Rising Phoenix in their
motion to dismiss, and provided the Court with a copy reflecting as much. Dkt. Nos. 39 at 4–5;
39-4. Typically, a court must limit its analysis to the complaint when deciding a motion to dismiss,
but may incorporate by reference other materials when they are referred to by the plaintiff and
“form[ ] the basis of the plaintiff’s claim.” U.S. v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003).
Given that Lee’s First Amended Complaint refers to the November 2023 EEOC complaint, which
relates to the exhaustion of his claims, the Court incorporates the EEOC complaint by reference
and considers it as part of the pending motions.
6 The Court notes that the EEOC complaint lists only “Rising Phoenix”, not Tidal Basin, as Lee’s
employer. Dkt. No. 39-4. Lee references “TB Customer Relations” in his EEOC complaint but
did not make clear that his charges were leveled at Tidal Basin as well as Rising Phoenix. Id. The
Corporate Defendants briefly argue that this vagueness means Lee failed to adequately exhaust his
administrative remedies against Tidal Basin. Dkt. No. 39-1 at 7–8. However, “EEOC complaints
are liberally construed,” Assaye v. United Airlines, Inc., No. 17-CV-00495 (DKW)(KSC), 2018
WL 1975678, at *8 (D. Haw. Apr. 26, 2018), and courts will consider “allegations of
discrimination not included in the plaintiff’s administrative charge” where those claims are “like
or reasonably related to the allegations contained in the EEOC charge,” B.K.B. v. Maui Police
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 4 of 37
PageID.<pageID>

5
Id. ¶ 9; Dkt. No. 39-4. 	On November 30, 2023, Lee “formally escalated his
complaint by reporting Defendant Fisher” to Tidal Basin’s vice-president for “race-
based discrimination.” Dkt. No. 13 ¶¶ 93–94.
According to Lee, his EEOC complaints caused Fisher to retaliate by belittling
him to his supervisees, excluding him from discussions, and applying different work
standards to him that were not applicable to non-African American supervisors. Id.
¶ 92. Other Defendants reacted similarly by “failing to provide support from upper
management.” Id. ¶ 78.
On December 1, 2023, Thompson and Burke met with Lee to discuss
“timekeeping inaccuracies” and “complaints by agents.” Id. ¶ 80, 96. Immediately
after the meeting, Lee was placed on paid suspension. 	Id. ¶¶ 80, 98. Nichols and
Niles, representing human resources, “ratified the discriminatory conduct” by failing
to intervene in Lee’s suspension. Id. ¶ 162.
Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (internal citation omitted), as amended (Feb. 20, 2002),
overruled on other grounds by Fort Bend Cnty., Texas v. Davis, 587 U.S. 541 (2019).
Here, the allegations of racial and disability discrimination, retaliation, and failure to accommodate
in Lee’s EEOC complaint against Rising Phoenix are substantially the same as those he details in
his First Amended Complaint. Compare Dkt. No. 39-4 at 1–2 with Dkt. No. 13. The Corporate
Defendants indeed acknowledge that Lee likely intended his EEOC claims to be made against
Tidal Basin, Dkt. No. 39-1 at 7–8, and the Court agrees that the non-specific nature of the EEOC
complaint likely stems more from unfamiliarity with the complaint forms than an intent on Lee’s
part to limit his claims, see B.K.B., 276 F.3d at 1103 (“We must keep in mind that complainants
filing discrimination charges are acting as laypersons and should not be held to the higher standard
of legal pleading by which we would review a civil complaint[.]”). Accordingly, the Court finds
that the EEOC complaint sufficed to exhaust Lee’s administrative remedies with respect to the
Corporate Defendants, except as discussed below.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 5 of 37
PageID.<pageID>

6
On December 9, 2023, the Corporate Defendants lifted Lee’s suspension, but
demoted him to a non-supervisory call center position. Id. ¶ 54. Finally, on January
4, 2024, Tidal Basin terminated Lee’s employment. Id. ¶ 85.
Lee claims that his suspension, demotion, and termination were in retaliation
for his accommodation request and race-discrimination complaints. Id. ¶¶ 78, 105.
Other employees who “engaged in . . . timekeeping discrepancies” but “were not
known to have disabilities” were not subjected to the same treatment. Id. ¶¶ 51–52.
Similarly, non-African American employees were “permitted to submit inaccurate
timesheets without consequence,” while African 	American supervisors 	“were
subjected to heightened scrutiny, discipline, and ultimately termination.” Id. ¶ 69.
On September 5, 2024, Lee initiated contact with an EEOC counselor, who
notified him of his right to file a formal complaint. Id. ¶ 11. On October 26, 2024,
Lee filed an EEOC complaint against FEMA, detailed in his First Amended
Complaint. See Dkt. No. 13-1 at 3. The FEMA complaint reflects that Lee asserted
claims of retaliation and discrimination based on race, color, religion, sex, and age.
See generally id. On December 10, 2024, the EEOC dismissed the complaint against
FEMA for failure to state a claim. Id. On January 30, 2025, the EEOC issued Lee
a right-to-sue letter. Id. at 1.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 6 of 37
PageID.<pageID>

7
II. 	Procedural History
On February 25, 2025, Lee initiated this action. Dkt. No. 1. In April 2025,
he filed his First Amended Complaint. 	Dkt. No. 13. 	Lee asserts the following
claims: (1) race discrimination in violation of Title VII (Count I); (2) disability
discrimination in violation of the ADA (Count II); (3) failure to accommodate in
violation of the ADA (Count III); (4) gender discrimination in violation of Title VII
(Count IV); (5) racial discrimination in violation of 42 USC § 1981 (Count V); (6)
retaliation in violation of Title VII (Count VI); (7) retaliation in violation of the ADA
(Count VII); (8) retaliation in violation of 42 USC § 1981 (Count VIII). Dkt. No.
13 at 28. 	Counts I, II, III, IV, VI, and VII are only alleged against the Corporate
Defendants, whereas Counts V and VIII are alleged against all Defendants. Id.
a. 	DHS’ Motion to Dismiss
On May 15, 2025, DHS moved to dismiss the First Amended Complaint for
lack of jurisdiction, arguing that (1) DHS did not employ Lee; (2) Lee failed to
timely exhaust administrative remedies for his ADA and Title VII claims7 against
DHS; (3) the ADA does not apply to federal agencies like DHS; and (4) Section
1981 does not provide a cause of action against federal officials. 	Dkt. No. 35.
7 DHS’ motion addresses Lee’s ADA and Title VII claims, despite the First Amended Complaint
stating that such claims were directed only against the Corporate Defendants. See Dkt. No. 13 at
28. Accordingly, despite Lee’s failure to acknowledge the limits of his pleadings in his opposition
brief, see Dkt. No. 37, the Court substantively addresses only Lee’s Section 1981 claims against
DHS. No other claims against DHS exist.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 7 of 37
PageID.<pageID>

8
Among other things, DHS provides the declaration of a FEMA attorney-advisor who
states that no contract existed between FEMA and the Corporate Defendants
regarding a call center relating to the 2023 Maui fires and surmises that the Corporate
Defendants may have contracted with the state government for call center services.
Dkt. No. 38-2. 	Lee opposes, arguing that the Corporate Defendants were merely
“front companies carrying out FEMA’s operational goals,” and that the Corporate
Defendants’ “coordinated obstruction” justified equitable tolling of the 45-day
deadline to exhaust his administrative remedies. 	Dkt. No. 37. 	DHS replies,
reiterating that Lee did not work for DHS and failed to timely exhaust, and that Lee
did not respond to DHS’ remaining arguments. Dkt. No. 38.
The Court directed the parties to file supplemental briefs addressing Lee’s
Section 1981 claims against DHS, specifically with respect to any “specific
contracts” between DHS and the Corporate Defendants. Dkt. No. 47. Lee did not
identify any specific contract, instead arguing that he supervised the internal FAQ
system and document intake for FEMA, tasks which put him “within the scope of
FEMA’s 	delegated 	federal 	functions” 	for 	the 	purposes 	of 	the 	Freedom 	of
Information Act (“FOIA”) and in turn subjected DHS to liability under Section 1981.
Dkt. No. 48. 	DHS (1) reiterated that no contract existed between DHS and the
Corporate Defendants; and (2) DHS’s liability under FOIA was wholly unrelated to
their liability under Section 1981. Dkt. No. 49.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 8 of 37
PageID.<pageID>

9
b. 	The Corporate Defendants’ Motion to Dismiss
On June 23, 2025, the Corporate Defendants moved to dismiss, arguing that
(1) Lee’s gender discrimination claims are unexhausted; and (2) Lee fails to
plausibly state his remaining claims. Dkt. No. 39-1. Lee opposes, responding that
he adequately alleged specific facts to support his claims. 	Dkt. No. 50. 	The
Corporate Defendants reply, repeating that Lee failed to state a claim and asserting
that Lee did not dispute his failure to exhaust his gender discrimination claims. Dkt.
No. 53.
c. 	Individual Defendants’ Motion to Dismiss
On June 23, 2025, the Individual Defendants moved to dismiss, arguing that
Lee’s generalized and conclusory allegations failed to state claims of racial
discrimination or retaliation under Section 1981. 	Dkt. No. 43. 	Lee opposes,
providing a copy of the Rising Phoenix employee handbook to demonstrate that his
termination did not follow typical company policy. Dkt. Nos. 52, 52-2. He further
requests that because he provided said handbook, the Court should “treat the motion
[to dismiss] as one for summary judgment” and permit discovery. Dkt. No. 52 at 1–
5. 	The Individual Defendants reply that Lee failed to oppose their arguments for
dismissal and his request to convert the motion to dismiss into a motion for summary
judgment should be denied. Dkt. No. 55.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 9 of 37
PageID.<pageID>

10
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.
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). Indeed, the Ninth Circuit
has made clear that “a district court should grant leave to amend even if no request
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 10 of 37
PageID.<pageID>

11
to amend the pleading was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000) (citations and quotation marks omitted). “[T]he rule favoring
liberality 	in 	amendments 	to 	pleadings 	is 	particularly 	important 	for
the pro se litigant.” 	Id. at 1131 (citation and internal quotation marks omitted).
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).
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
U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982).
DISCUSSION
Three motions to dismiss are pending before the Court, each advanced by a
different group of Defendants. 	Dkt. Nos. 35, 39, 43. 	The Court addresses the
arguments of each motion in turn.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 11 of 37
PageID.<pageID>

12
I. 	DHS
In Counts V and VIII, Lee alleges that DHS is liable for racial discrimination
and retaliation under Section 1981. Dkt. No. 13 at 28. Because Lee cannot state a
Section 1981 claim against DHS under the circumstances alleged, the Court grants
DHS’ motion to dismiss without leave to amend.
Lee’s Section 1981 claim against DHS fails for several reasons. 	First, the
Amended Complaint does not state how, if at all, DHS discriminated against Lee.
Lee refers to DHS only by baldly claiming that the agency “oversaw federal
contracts and funding” related to Lee’s employment and “participated in operational
meetings and were aware of staffing decisions affecting Plaintiff.” 	Dkt. No. 13
¶¶ 158, 190. Bare allegations like these, devoid of any detail, provide the Court little
with which to draw any inference of liability. 	Ashcroft, 556 U.S. at 678; see also
Bowling v. Diamond Resorts Int’l, Inc., No. 17-CV-00562, 2018 WL 3244068, at *7
(D. Haw. July 3, 2018) (“[A] conclusory allegation that [d]efendants were plaintiff’s
joint employer 	. . . is insufficient to withstand a Rule 12(b)(6) motion.” (internal
quotation marks and alterations omitted)). Second, at the June 27, 2025 hearing on
DHS’ motion, the Court explained the importance of identifying a specific contract
that formed the basis of Lee’s Section 1981 claim. When Lee could not offer one,
the Court gave Lee, proceeding pro se, an extra opportunity. 	Dkt. No. 47. 	Lee,
however, failed again—his supplemental brief ignores the obligation to identify a
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 12 of 37
PageID.<pageID>

13
contract and instead speaks only vaguely of a relationship between the Corporate
Defendants and FEMA. Dkt. No. 48. 	Absent any nonconclusory allegations tying
DHS to the discriminatory application of a contract, Lee fails to adequately state a
claim.
Third, even assuming Lee could identify the requested contract, his Section
1981 claims against DHS would still fail. 	Section 1981 grants all citizens of the
United States “the same right in every State or Territory to make and enforce
contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981. It further states,
however, that “rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.” 	42
U.S.C. § 1981(c). 	Courts have universally found that Section 1981 provides no
cause of action for claims of discrimination against federal defendants. See Magassa
v. Mayorkas, 52 F.4th 1156, 1162 (9th Cir. 2022) (“The plain text of the statute
establishes that § 1981 does not provide a cause of action for discrimination by
federal officials acting under color of federal law.”); see also Nelson v. Everson, No.
C07-0707 (RSL), 2007 WL 1893327, at *2 (W.D. Wash. June 29, 2007) (“[T]he
majority 	of 	courts 	have 	barred 	Section 	1981 	suits 	against 	the 	[federal]
government.”); Espinueva v. Garrett, 895 F.2d 1164, 1165 (7th Cir. 1990) (“Section
1981 does not apply to employment discrimination cases involving the federal
government”). Here, Lee claims that DHS, a federal defendant, acted under color of
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 13 of 37
PageID.<pageID>

14
federal law to discriminate and retaliate on the basis of race in violation of Section
1981. 	Accordingly, his claims would fail even if they were otherwise sufficiently
pled.
Moreover, further amendments will not change the fact that Section 1981
provides no cause of action against DHS. See Jass v. CherryRoad Techs., Inc., 449
F. Supp. 3d 923, 941 (D. Haw. 2020) (“Dismissal without leave to amend is
appropriate where a plaintiff’s proposed amendments would fail to cure the pleading
deficiencies and amendment would be futile.” (internal quotation marks omitted));
Dkt. Nos. 47-48. The claims against DHS are dismissed with prejudice and without
leave to amend.
II. 	The Corporate Defendants
Lee asserts all eight of his claims against the Corporate Defendants, who argue
that each fails to satisfy Fed.R.Civ.P. 12(b)(6). 	The Court agrees, as explained
below.8
8 As the Corporate Defendants point out, Lee does not differentiate between the conduct of Tidal
Basin and Rising Phoenix, either stating that both were responsible for all adverse employment
actions and discrimination against him or referring to them simply as “Defendants”. See generally
Dkt. No. 13. Because Lee appears to assert that his claims all stem from conduct that Tidal Basin
and Rising Phoenix undertook jointly, the Court’s discussion applies to the claims against both
Corporate Defendants, unless otherwise stated.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 14 of 37
PageID.<pageID>

15
a. 	Title VII Claims
i. 	Racial Discrimination
Section 703(a)(1) of Title VII provides that it is “an unlawful employment
practice” for an employer to “discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race.” 42 U .S.C. § 2000e–2(a)(1). 	Here, Lee does not allege that he
was subjected to any explicit racial animus, such as derogatory remarks relating to
his race. Instead, he claims that similarly situated, non-African American employees
of the Corporate Defendants were promoted in place of him and not subjected to
critique, discipline, or termination despite committing timekeeping errors similar to
the ones he appears to acknowledge having made. Dkt. No. 13 ¶¶ 37, 38, 81, 84.
“Evidence that similarly situated employees are treated more favorably is one
way to establish intentional discrimination” in the Title VII context, specifically in
the form of a disparate treatment claim. Marziano v. Cnty. of Marin, No. C-10-2740
(EMC), 2010 WL 3895528, at *7 (N.D. Cal. Oct. 4, 2010). A plaintiff establishes a
prima facie case of disparate treatment discrimination by showing: (1) that he
belongs to a class of protected persons; (2) that he was qualified for his position and
performed his job satisfactorily; (3) that he suffered an adverse employment action;
and (4) that the employer treated him differently than a similarly situated employee
who does not belong to the same protected class. See McDonnell Douglas Corp. v.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 15 of 37
PageID.<pageID>

16
Green, 411 U.S. 792 (1973); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1028 (9th Cir. 2006) (McDonnell Douglas framework applies to Title VII claims).
“A disparate-treatment plaintiff must establish that the defendant had a
discriminatory intent or motive for taking a job-related action.” Ricci v. DeStefano,
557 U.S. 557, 577 (2009). 	“Thus, a plaintiff bringing a disparate treatment claim
must allege facts that plausibly indicate defendant was motivated by a discriminatory
animus.” 	Wilson v. Timec Servs. Co., Inc., No. 23-CV-00172 (WBS)(KJN), 2023
WL 5753617, at *3 (E.D. Cal. Sept. 6, 2023) (internal quotation marks omitted).
Here, Lee’s allegations of disparate treatment fail to state a claim for several
reasons. First, many of his allegations are conclusory in nature. 	See McAllister v.
Hawaiiana Mgmt. Co., No. 11-CV-00056, 2012 WL 292955, at *8 (D. Haw. Jan.
30, 2012) (granting dismissal of Title VII racial discrimination claims based on
“only conclusory allegations”). 	Lee, for example, states that he was subject to
“exclusion or denial of information” when the Corporate Defendants promoted
“[n]on-African American supervisors” but gives no further details. 	Dkt. No. 13
¶ 37. 	Lee also fails to allege he was qualified for the positions to which his
comparators were promoted. See Jones v. Rising Phoenix Holdings Corp., No. 25-
CV-00178, 2025 WL 2802180, at *7 (D. Haw. Oct. 1, 2025) (dismissing disparate
treatment claim where plaintiff did “not allege that she was specifically qualified for
. . . new positions, the responsibilities of which the complaint does not describe”).
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 16 of 37
PageID.<pageID>

17
Baldly stating the elements of a disparate treatment claim is no substitute for
plausibly alleging one.
Second, Lee’s allegations regarding the allegedly unfair disciplinary actions
taken against him undercut any claim of racial animus. Lee claims that non-African
American employees of the Corporate Defendants committed timekeeping errors
like he did, but were not suspended, demoted, or terminated. Dkt. No. 13 ¶ 69. Yet
Lee 	also 	identifies 	another 	African 	American 	employee 	who 	“engaged 	in
comparable or greater timekeeping discrepancies” without being disciplined. 	Id.
¶ 52. 	“The inference of racial discrimination can only arise if there are several
workers facing the same situation and only the worker (or workers) [of the allegedly
discriminated-against race] is/are subject to adverse job action.” 	Al-Raheem v.
Covenant Care, No. 10-CV-2064, 2012 WL 4863711, at *4 (E.D. Cal. Oct. 12,
2012). That another African American employee allegedly behaved the same as Lee
and yet was not punished cuts against any inference of race-based disparate
treatment.
Finally, Lee fails to allege that other employees were, in fact, similarly
situated. “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.” 	Al-Raheem, 2012 WL 4863711, at *4
(emphasis added). 	Here, Lee states that he was disciplined for both timekeeping
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 17 of 37
PageID.<pageID>

18
discrepancies and “complaints from agents” whom he supervised. 	Id. ¶ 80. 	Lee
does not deny he had timekeeping discrepancies, does not deny complaints from his
supervisees, and does not allege that anyone else in the Corporate Defendants’
employ suffered from both issues, much less what happened to those others in terms
of any discipline. 	Accordingly, he fails to allege sufficient facts relating to any
similarly situated employee that might create an inference of racial discrimination.
See Al-Raheem, 2012 WL 4863711, at *4 (granting dismissal because plaintiff failed
to allege that workers of different races had the same work issues as himself).
For these reasons, the Court grants the motion to dismiss Lee’s Title VII
disparate 	treatment 	claims. 	Because 	Lee 	“could 	conceivably 	cure 	these
deficiencies,” and in light of his pro se status, the dismissal is without prejudice and
with leave to amend. Jones, 2025 WL 2802180, at *7.
ii. 	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
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 18 of 37
PageID.<pageID>

19
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). 	Regarding the causation element, the Supreme Court
“requires proof 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 under Title VII “must establish that his or her
protected activity was a but-for cause of the alleged adverse action by the
employer”).
Here, Lee alleges that the Corporate Defendants retaliated “by failing to
provide support from upper management,” “suspending Plaintiff,” demoting him,
and 	terminating 	his 	employment 	in 	response 	to 	his 	November 	2023 	racial
discrimination complaints against Fisher. Dkt. No. 13 ¶ 78. These allegations alone,
however, are not enough to adequately state a claim.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 19 of 37
PageID.<pageID>

20
While Lee asserts that the disciplinary actions against him by the Corporate
Defendants were incited by his racial discrimination complaint, he does not provide
any allegations in support of that conclusion beyond drawing a temporal connection.
Cf. Jinadasa v. Brigham Young Univ.-Hawaii, No. 14-CV-00441, 2015 WL
3407832, at *6 (D. Haw. May 27, 2015) (plaintiff failed to state a claim when he
asserted that EEOC filings and adverse employment actions were “connected” but
“offer[ed] no factual allegations in support of that conclusory assertion”). In other
words, Lee argues that the short length of time between his complaints (November
21 and 30, 2023) and his suspension and demotion (December 1 and 9, 2023)
“establishes a strong causal connection between Plaintiff’s protected activity and
Defendants’ retaliatory actions.” Dkt. No. 13 ¶ 105.
While it is true that “[t]emporal proximity between protected activity and an
adverse employment action can . . . constitute sufficient circumstantial evidence of
retaliation in some cases,” Bell v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir.
2003), this does not obviate Plaintiff’s obligation to show that his protected activity
was the but-for cause of the alleged adverse action, see Santos v. Cnty. of Humboldt,
No. 24-CV-11256, 2023 WL 6882748, at *6 (N.D. Cal. Oct. 18, 2023) (“While
proximity in time between the protected activity and the allegedly retaliatory
decision can constitute some evidence of a retaliatory motive or of a causal link . . .
the but-for standard cannot be said to have been satisfied here.”). 	Courts must
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 20 of 37
PageID.<pageID>

21
consider retaliation claims both “in the light of the timing and the surrounding
circumstances.” 	Coszalter 	v. 	City 	of 	Salem, 320 	F.3d 	968, 	978 	(9th 	Cir.
2003)(emphasis added). 	Simply put, Lee alleges no “surrounding circumstances”
here that suggest his administrative complaints were the cause of the disciplinary
actions against him.
First, as noted above, Lee provides no additional allegations suggesting a
causal connection. 	Ly v. Paragon Tech. & Dev. Inc., No. 18-CV-02465, 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, especially where, as here,
[plaintiff] hasn’t pleaded any additional facts that would make her claims seem more
than just conceivable.”). 	Second, Lee alleges that his suspension, demotion, and
firing took place in the context of criticism for his timekeeping discrepancies and
complaints from the agents he supervised, all of which provide alternative reasons
that the Corporate Defendants might have disciplined him. 	Dkt. No. 13 ¶ 80; see
Santos, 2023 WL 6882748, at *6 (granting motion to dismiss where but-for standard
was not satisfied because a “plethora of other plausible explanations could [] have
explained the chain of events surrounding” the adverse employment action). Third,
although Lee may claim that his purported work issues were a mere pretext, he states
in his Amended Complaint that “another African American supervisor who engaged
in protected activity was not terminated,” without elaboration. Dkt. No. 13 ¶ 104.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 21 of 37
PageID.<pageID>

22
This allegation runs counter to Lee’s claim that engaging in a protected activity
motivated the Corporate Defendants’ alleged adverse employment actions.
In short, Lee’s allegations of temporal proximity alone are insufficient to
plausibly plead but-for causation under the circumstances presented. 	Lacayo v.
Donahoe, No. 14-CV-04077, 2015 WL 3866070, at *12 (N.D. Cal. June 22, 2015)
(“The mere fact that the adverse actions took place after plaintiff’s protected activity
is not sufficient by itself to give rise to an inference of a causal link.” (internal
quotation marks omitted)). Accordingly, the Court grants dismissal as to Lee’s Title
VII retaliation claims, without prejudice and with leave to amend.
iii. 	Gender Discrimination
Lee asserts for the first time a claim of Title VII gender discrimination,
asserting that the alleged adverse employment actions taken against him were due to
his status as a male. 	Dkt. No. 13 at 28. 	This claim, however, does not appear in
Lee’s EEOC complaint against the Corporate Defendants. See Dkt. No. 39-4. Title
VII requires a plaintiff to exhaust his or her administrative remedies before filing a
civil action against an employer, to “afford[] the agency an opportunity to investigate
the charge.” B.K.B., 276 F.3d at 1100–01 (citing 42 U.S.C. § 2000e-5(b)).
Here, Lee’s EEOC complaint identifies racial and disability discrimination,
failure to accommodate, and retaliation as the bases of his claims. Dkt. No. 39-4. It
does not mention his gender or any allegation of gender discrimination. Although
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 22 of 37
PageID.<pageID>

23
the Court could consider Lee’s gender discrimination claims if they were “like or
reasonably related to the allegations contained in the EEOC charge,” B.K.B., 276
F.3d at 1100, that is not the case here, given that gender discrimination relies on a
wholly different form of improper conduct, see Rodriguez v. Airborne Express, 265
F.3d 890, 897 (9th Cir. 2001) (“It would not be proper to expand the claim as
[plaintiff] asks, when the difference between the charge and the complaint is a matter
of adding an entirely new basis for the alleged discrimination.” (internal quotation
marks omitted)).
Accordingly, Lee has failed to exhaust his gender discrimination claims
against the Corporate Defendants. 	The claims are dismissed with prejudice and
without leave to amend.9
b. 	ADA Claims
i. 	Disability Discrimination and Failure to Accommodate
A plaintiff establishes a prima facie ADA discrimination claim by showing:
(1) he is disabled within the meaning of the statute; (2) he is a qualified individual
(that is, able to perform the essential functions of the job); and (3) he suffered an
9 Amendment of Lee’s EEOC complaint to include a Title VII gender discrimination claim would
be futile because more than 300 days have passed since his termination in January 2024. See Sims
v. Salem Health Hosps. & Clinics, 2017 WL 2468786, at *2 (D. Or. June 7, 2017) (“Plaintiff did
not exhaust her administrative remedies within the statutory timeline, [therefore] Plaintiff's [Title
VII] claim for relief is dismissed with prejudice.”); EEOC v. Global Horizons, Inc., 904 F. Supp.
2d 1074, 1090 n.2 (D. Haw. 2012) (“The 300-day limitations period is applicable in this case
because Title VII extends the 180-day period to 300 days if filed in a ‘worksharing’ jurisdiction
. . . Hawaii and California are both ‘worksharing’ states . . .”).
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 23 of 37
PageID.<pageID>

24
adverse employment action because of his disability. 	See, e.g., Hutton v. Elf
Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001) (citations omitted).
Discrimination 	under 	the 	ADA 	includes 	the 	failure 	to 	make 	a 	“reasonable
accommodation” unless the employer can demonstrate that the accommodation
would impose an “undue hardship” on its business. 	42 U.S.C. § 12112(b)(5)(A).
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). 	To satisfy the but-for standard, a plaintiff must prove that the
adverse action “would not have occurred in the absence of the alleged wrongful
action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 360 (2013).
Here, Lee alleges that he suffered from a visual impairment that made
prolonged use of a computer screen hazardous. He further alleges that the Corporate
Defendants failed to accommodate this disability and then suspended, demoted, and
terminated him. Dkt. No. 13 ¶¶ 46–53. While Lee’s allegations conclusorily state
that defendants’ adverse actions were due to his disability, see e.g. Dkt. No. 13 ¶ 48
(“Defendants regarded Plaintiff as disabled and subjected them [sic] to adverse
employment actions based on this perception”), such allegations are not enough to
satisfy the but-for causation standard required by the ADA, see Howell v. Washoe
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 24 of 37
PageID.<pageID>

25
Cnty., No. 24-CV-00280, 2025 WL 894552, at *7 (D. Nev. Mar. 24, 2025) (granting
dismissal where plaintiff offered only “conclusory allegations” that defendants
suspended and discharged him after learning of plaintiff’s disability “without
supporting facts”).
In only two instances does Lee arguably attempt to provide a factual basis for
but-for 	causation. 	First, 	he 	claims 	that 	other, 	non-disabled 	employees 	also
committed timekeeping violations but were not subjected to adverse actions. Dkt.
No. 13 ¶¶ 51–52. 	As with Title VII, the ADA permits plaintiffs to establish
discrimination through evidence of favorable treatment towards similarly-situated,
non-disabled employees. Marziano, 2010 WL 3895528, at *7. Still, however, Lee
must do so with non-conclusory allegations. 	See Johnson v. Target, No. 23-CV-
00580 (TUC)(RCC), 2024 WL 579075, at *3 (D. Ariz. Feb. 13, 2024) (finding that
comparison to similarly situated employees failed to show but-for causation where
plaintiff offered “no information” on other employees “beyond [] conclusory
statements”). And, as with his Title VII claims, Lee fails to non-conclusorily allege
that other employees were comparable to himself. Lee, for instance, does not state
the nature of the timekeeping violations in which these other employees engaged,
when they did so, or whether other employees received complaints from their
subordinates in the same way Lee did. His argument concerning similarly-situated
employees is therefore unpersuasive.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 25 of 37
PageID.<pageID>

26
Second, Lee points to the lack of an “interactive process” regarding his alleged
accommodation request as a sign that the adverse employment actions were due to
his disability. Dkt. No. 13 ¶ 49. This argument, however, merely reveals another
area in which Lee’s pleadings are lacking. It is true that employers have a duty under
the ADA to engage in an “interactive process” after an employee notifies them of
the need for an accommodation. 	Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433
(9th Cir. 2018). However, failure to engage in the interactive process “is not itself
evidence of failure to reasonably accommodate” because “[t]here must first exist a
reasonable accommodation that will enable the employee to perform the essential
functions of the position.” 	Kramer v. Tosco Corp., 233 Fed.Appx. 593, 596 (9th
Cir. 2007).
Here, Lee does not allege what, if any, accommodation he requested from the
Corporate Defendants. 	“While such specifics are not always necessary,” courts
weighing 	a 	motion 	to 	dismiss 	will 	nevertheless 	look 	to 	plaintiff’s 	desired
accommodation to determine if “a reasonable accommodation might have been
found.” Murray v. King Cnty., No. 25-CV-00600, 2025 WL 2145569, at *3 (W.D.
Wash. July 29, 2025). Lee’s failure to explain how the Corporate Defendants could
have accommodated his visual impairment is another deficiency in his pleading, one
which deprives the Court of its ability to determine if any accommodation was
reasonable. See id. at *3–4 (granting dismissal because although “[a] fair reading of
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 26 of 37
PageID.<pageID>

27
these allegations does not rule out the possibility that a reasonable accommodation
might have been found,” plaintiffs must nevertheless provide “facts supporting such
an inference”); Kamakeeaina v. Armstrong Produce, Ltd., No. 18-CV-00480, 2019
WL 1320032, at *6 (D. Haw. Mar. 22, 2019) (granting dismissal of ADA claim
where plaintiff “fail[ed] to allege what accommodation” he requested or was
reasonable, as one “cannot [] be inferred from the [c]omplaint”).
Accordingly, the Court dismisses Lee’s ADA discrimination and failure to
accommodate claims, without prejudice and with leave to amend.
ii. 	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). As with Title VII, 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).
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 27 of 37
PageID.<pageID>

28
Looking at his allegations relating specifically to the Corporate Defendants,
Lee states only that they “subjected Plaintiff to retaliatory treatment” in response to
his request for a disability accommodation. Dkt. No. 13 ¶ 60. These allegations are
simply not enough to survive a motion to dismiss: they state in a conclusory fashion
that the Corporate Defendants retaliated without any details as to adverse action or
causation. 	See Ashcroft, 556 U.S. at 678. Because Lee offers no facts that come
close to satisfying the elements of an ADA retaliation claim, dismissal without
prejudice and with leave to amend is appropriate, just as with Lee’s Title VII
retaliation claims (see Discussion, Section II(a)(ii)). 	See Petersen v. Cnty. of
Stanislaus, No. 12-CV-00933, 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]”).
c. 	Section 1981 Claims
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). “As a result, the Title VII framework is applied to claims brought
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 28 of 37
PageID.<pageID>

29
under Section 1981 . . . including discrimination claims brought under a disparate
treatment theory.” Freeling v. PCX, Inc., No. 23-CV-00173, 2023 WL 6194259, at
*4 (C.D. Cal. Aug. 15, 2023). The same is true for Section 1981 retaliation claims.
See Haney v. United Airlines, Inc., No. 15-CV-00474, 2016 WL 80554, at *3 (N.D.
Cal. Jan. 7, 2016) (“The same framework [as Title VII] applies to retaliation claims
. . . brought under [S]ection 1981.”).
The Court has already determined that Lee has failed to properly allege
discrimination or retaliation under Title VII. 	See Discussion, Sections II(a)(i), (ii).
Because those claims are analyzed under the same framework, it follows that Lee
has failed to allege his Section 1981 claims against the Corporate Defendants as
well. 	See Jones, 2025 WL 2802180, at *9 (analyzing Title VII and Section 1981
retaliation and discrimination claims under the same standards and dismissing on the
same grounds). Accordingly, the Court grants dismissal of the Section 1981 claims
against the Corporate Defendants for the same reasons, without prejudice and with
leave to amend.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 29 of 37
PageID.<pageID>

30
III. 	Individual Defendants
Lee brings only Section 1981 claims against the Individual Defendants,10 who
argue that said claims should be dismissed for failure to state a claim. 	The Court
agrees.
a. 	Section 1981
A plaintiff asserting a discrimination claim under Section 1981 “must show
intentional discrimination on account of race,” Evans v. McKay, 869 F.2d 1341,
1344 (9th Cir. 1989), and that “but for race, [he] would not have suffered the loss of
a legally protected right,” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media,
589 U.S. 327, 341 (2020). A plaintiff therefore must “allege facts showing that each
named individual defendant either personally participated in the discriminatory acts
or was informed of the wrongdoing of [his] subordinates but was grossly negligent
or deliberately indifferent as to their supervision.” 	Jones, 2025 WL 2802180, at 5
(internal quotation marks omitted).
10 The Court notes that the Ninth Circuit has not yet determined whether individual defendants
may be liable under Section 1981, in the same manner that ADA and Title VII claims may not be
brought against individuals. However, “other circuit courts and district courts in the Ninth Circuit
have determined individuals may be held liable for violations of rights provided under Section
1981.” McAllister v. Adecco USA Inc., No. 16-CV-00447, 2018 WL 6112956, at *13 (D. Haw.
Nov. 21, 2018), aff’d sub nom. McAllister v. Brunk, 812 F. App’x 708 (9th Cir. 2020) (internal
quotation marks omitted); see also Jones, 2025 WL 2802180, at 5 n.3 (analyzing Section 1981
claims against individuals).
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 30 of 37
PageID.<pageID>

31
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
discrimination.” 	Jones, 2025 WL 2802180, at *8 (quoting CBOCS Wests, Inc. v.
Humphries, 553 U.S. 442, 445 (2008)). Retaliation under Section 1981 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. 20-CV-00507, 2022 WL 1491104, at *5 (D. Ariz. Apr. 22, 2022), report and
recommendation adopted, 2022 WL 1487042 (D. Ariz. May 11, 2022).
“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., No. 05-CV-3518, 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).
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 31 of 37
PageID.<pageID>

32
b. 	Claims Against Thompson and Fisher
Lee’s allegations concerning the Individual Defendants focus largely on
Thompson and Fisher, and he makes similar (in fact, nearly identical) allegations for
both. Accordingly, the Court’s analysis begins there. In his Amended Complaint,
Lee alleges that Thompson and Fisher overly-scrutinized his work, undermined his
team and authority, required him to perform additional tasks presumably not
required of his peers, made “belittling and condescending remarks” about him to his
subordinate agents, and excluded him from discussions. Dkt. No. 13 ¶¶ 68–74, 76,
92, 150. He further alleges that Thompson and Fisher selectively enforced company
rules to discipline him for timekeeping discrepancies due to his race and in retaliation
for his racial discrimination complaint against Fisher. Id. ¶ 96.
These allegations contain several deficiencies. First, much of the conduct Lee
attributes to Thompson and Fisher does not, on its face, identify any racially
discriminatory motive. 	Merely stating that Thompson and Fisher were overly-
critical, demanding, or even rude towards Lee does not state a Section 1981 claim
absent allegations that establish Thompson and Fisher acted “because of [Plaintiff’s]
race or race-related complaint.” 	Jones, 2025 WL 2802180, at *5 (emphasis in
original). 	To be sure, Lee repeatedly states that at least Fisher was racially
motivated, but merely asserting as much in a conclusory fashion is not enough to
state a claim. Ashcroft, 556 U.S. at 678; see also Bastidas v. Good Samaritan Hosp.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 32 of 37
PageID.<pageID>

33
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)). Moreover, even if Lee’s
allegations did adequately state that racial discrimination motivated Fisher and
Thompson, he would still fail to state a claim because he has neither alleged nor
shown it was the but for cause. See Domino v. Kentucky Fried Chicken, No. 19-CV-
08449, 2020 WL 5847306, at *2 (N.D. Cal. Oct. 1, 2020) (holding that “allegations
that racial discrimination was a ‘motivating factor’ in a defendant’s actions are
insufficient to plead a claim” absent allegations that “racial discrimination was the
but-for cause”).
Second, although Lee may be attempting to allege but-for causation by
claiming there were similarly-situated, non-African American employees treated
differently, Dkt. No. 13 ¶ 96, these allegations still fail to state a claim against Fisher
or Thompson. “[I]ndividuals are similarly situated when they have similar jobs and
display 	similar 	conduct,” 	including 	“engag[ing] 	in 	problematic 	conduct 	of
comparable seriousness.” 	Vasquez v. Cty. of L.A., 349 F.3d 634, 641 (9th Cir.
2003). 	As noted with respect to his Title VII claims (see Discussion, Section
II(a)(i), supra), Lee fails to allege that supervisory employees who were not
disciplined had agent complaints against them, as Lee did. 	Moreover, one of the
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 33 of 37
PageID.<pageID>

34
non-disciplined employees to whom Lee otherwise compares himself is, in fact,
African American too. Dkt. No. 13 ¶ 52.
Lee attempts to make other allegations in support of his Section 1981 claim
that bear comment. 	At various points, Lee refers to the actions of “Defendants”
without specifying to which individual an allegation pertains. See, e.g., Dkt. No. 13
¶ 100 (“On December 9, 2023, Defendants further retaliated against Lee. . . .”).
Generalized pleadings of this kind are insufficient. 	See Jones, 2025 WL 2802180,
at 5 (dismissing Section 1981 claims where plaintiff merely “generically allege[d]
that all defendants participated in a legal violation”); see also Destfino v. Reiswig,
630 F.3d 952, 958 (9th Cir. 2011) (holding that “‘everyone did everything’
allegations” are insufficient to satisfy federal pleading standards). Accordingly, the
allegations that refer collectively to “Defendants” without specification are not
enough to save Lee’s claims and may not be repeated in any amendment.
Lee also attempts to supplement his Amended Complaint by providing a copy
of the Rising Phoenix employee handbook with his opposition to the motion to
dismiss, claiming that it reveals the Individual Defendants failed to follow proper
procedure in disciplining him. 	Dkt. Nos. 52, 52-2. 	Lee requests that the Court
convert the Individual Defendants’ motion to dismiss to a motion for summary
judgment so that it might consider the handbook in determining his Section 1981
claims. Dkt. No. 52 at 1.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 34 of 37
PageID.<pageID>

35
The Court declines to do so. The handbook is not attached to the pleadings,
is not incorporated by reference, is not judicially noticeable, and does not form the
basis of Lee’s claim. 	Cf. Ritchie, 342 F.3d at 908; Benton v. Exec. Hotel Seattle
LLC, No. C20-1504, 2021 WL 764135 at *3 (W.D Wash. Feb. 26, 2021). 	The
Amended Complaint refers to the handbook only once, and only to note that it
“prohibits employees from working off the clock.” 	Dkt. No. 13 ¶ 75. 	This brief
reference has no evident bearing on Lee’s Section 1981 claim. 	Accordingly, the
Court will not consider evidence from the employee handbook at this time.
Because Lee has not stated a Section 1981 discrimination or retaliation claim
against Thompson or Fisher, the Court dismisses these claims without prejudice and
with leave to amend.
c. 	Other Individual Defendants
Lee devotes far less attention in his Amended Complaint to his claims against
Burke, Nichols, or Niles, the remaining Individual Defendants. For Burke, Lee only
alleges that she was present at a December 1, 2023 meeting in which Lee was
confronted with alleged timekeeping discrepancies and agent complaints. Dkt. No.
13 ¶ 96. That alone falls far short of stating a claim of any kind against Burke. Lee,
for instance, does not allege that Burke engaged in any discriminatory conduct or
played any decision-making role in the allegedly discriminatory actions taken by
others. See Takieh, 515 F. Supp. 3d at 1048 (dismissing Section 1981 claim where
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 35 of 37
PageID.<pageID>

36
complaint was “devoid of factual allegations showing that [defendant] was a
member of any decision-making body” responsible for plaintiff’s alleged injuries);
Jones, 2025 WL 2802180, at *6 (plaintiff failed to state Section 1981 claim because
the “allegations do not suggest that [defendant] had any control over the decision to
terminate”).
The same is true for Nichols and Niles, whom Lee states merely “ratified the
discriminatory conduct,” without elaboration. 	Dkt. No. 13 ¶ 162. 	Lee describes
Nichols and Niles as human resources managers, id. ¶ 20, but otherwise provides no
detail at all as to their conduct. To state a Section 1981 claim, Lee was obliged to
allege some personal involvement by Nichols and Niles, Elmatboly, 2009 WL
10674070, at *6, but has failed to do so.
Given the absence of any substantive allegations concerning Burke, Nichols,
or Niles, Lee fails to state Section 1981 claims against any of them. Accordingly,
the Court grants dismissal without prejudice and with leave to amend.11
CONCLUSION
For the reasons stated, Defendants’ motions to dismiss, Dkt. Nos. 35, 39, 43,
are GRANTED. 	Lee’s Section 1981 claims against DHS and his Title VII gender
11 The Individual Defendants also argue that if Lee asserts Section 1981 claims for gender
discrimination and hostile work environment, those too must be dismissed. Dkt. No. 43-1 at 10,
15. 	Examining the Amended Complaint, however, Lee does not appear to assert such claims
within the context of Section 1981. Cf. Dkt. No. 13 ¶¶ 109–42 (gender discrimination under Title
VII). The Court thus does not address these arguments any further.
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 36 of 37
PageID.<pageID>

37
discrimination claims against the Corporate Defendants are denied with prejudice
and without leave to amend. 	The Court grants leave to amend all other claims,
consistent with this Order. Should Lee wish to amend his pleadings, he must file a
standalone Second Amended Complaint that does not incorporate or rely on his
previous filings no later than November 17, 2025. If no amended pleading is filed
by that date, this action will be dismissed and closed without further notice.
IT IS SO ORDERED.
Dated: October 27, 2025 at Honolulu, Hawai‘i.
Wilfred L. Lee, Jr. vs. Rising Phoenix Holdings, Corp., et al; Civil No. 25-00083
DKW-RT; ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
Case 1:25-cv-00083-DKW-RT Document 66 Filed 10/27/25 Page 37 of 37
PageID.<pageID>