Naseri

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 ZAHIR NASERI, Case No. 4:25-cv-07163-KAW

8 Plaintiff, ORDER GRANTING IN PART AND

DENYING IN PART THE MOTION TO

9 v. DISMISS FIRST AMENDED

COMPLAINT

10 MICHAEL REGAS, et al.,

Re: Dkt. No. 26

11 Defendants.

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13 On June 1, 2026, Defendant filed a motion to dismiss Plaintiff Zahir Naseri’s first

14 amended complaint. (Def.’s Mot., Dkt. No. 26.)

15 On August 6, 2026, the Court held a hearing, and, after consideration of the arguments

16 raised in the briefing and at oral argument, GRANTS IN PART AND DENIES IN PART the

17 motion to dismiss.

18 I. BACKGROUND

19 A. Factual Background

20 Plaintiff Zahir Naseri is Afghan-American and Muslim, and he was a probationary

21 employee of the U.S. General Services Administration (“GSA”) from April 9, 2023, until his

22 termination on June 16, 2023. (First Am. Compl., “FAC,” Dkt. No. 25 ¶¶ 2, 17, 62.) During his

23 employment, Plaintiff claims he “disclosed medical conditions including diabetes and stress-

24 related mental health conditions diagnosed and treated by licensed providers, including anxiety-

25 related disorders, depression, insomnia, and panic-related symptoms.” (FAC ¶ 3.) Plaintiff further

26 alleges that “[t]hese conditions substantially limited major life activities, including sleep,

27 concentration, and stress regulation.” Id.

1 employed by GSA. On April 13, 2023, Plaintiff first requested reasonable accommodations for

2 his disabilities from Supervisors Michelle Daniels (“Supervisor Daniels”) and Jacqueline Peters

3 (“Supervisor Peters”), including telework and schedule flexibility supported by medical

4 documentation, but those requests were denied without meaningfully engaging in the interactive

5 process. (FAC ¶¶ 4, 19-20.) While Plaintiff was denied the ability to telework, another “similarly

6 situated coworker outside Plaintiff’s protected classes, … [and] performing substantially similar

7 duties under the same supervisory chain,” was approved for full-time telework. (FAC ¶ 21.)

8 Plaintiff claims that, beginning on April 13, 2023, Supervisor Daniels observed that he was

9 “a Middle Eastern Muslim.” (FAC ¶ 22.) During that same interaction, Plaintiff alleges that

10 Supervisor Daniels threatened him by saying, “I will f**k your probationary period.” Id. On

11 April 14, 2023, Supervisor Daniels allegedly made similar statements involving Plaintiff, where

12 she referenced his protected characteristics and his probationary employment status. (FAC ¶ 23.)

13 Plaintiff contends that these statements were made in the context of his employment, including

14 discussions related to his work assignments and requests for workplace accommodations. (FAC ¶

15 24.) Plaintiff alleges that, “[o]n or about May 30, 2023, he sent a written cease-and-desist

16 communication to his supervisor, with copies to GSA Region 9 leadership and agency counsel,

17 notifying Defendant of alleged discrimination, harassment, and hostile work conditions,” and

18 “also submitted written complaints regarding workplace treatment to management during this

19 period.” (FAC ¶¶ 25-26.)

20 On May 14, 2023, Plaintiff informed Supervisors Daniels and Peters of his intent to pursue

21 EEO protections and related grievances concerning workplace treatment and accommodations

22 issues. (FAC ¶¶ 27, 37(a).) On May 15, 2023, Plaintiff initiated contact with GSA’s EEO office

23 and began the EEO complaint process. (FAC ¶ 37(b).) Plaintiff alleges that Defendant retaliated

24 against him through “increased scrutiny, restrictions on assignments, and exclusion from project

25 management meetings regarding ongoing work.” (FAC ¶ 30.) Plaintiff further alleges that, on or

26 about May 23, 2023, he reported concerns regarding discrimination, threats, and retaliation to

27 GSA management, including Service Center Director Jason Cawthrone and American Federation

1 that Defendant also retaliated by denying his “renewed request for workplace accommodation” on

2 June 8, 2023, and by not approving “overtime or compensatory time” on June 13, 2023. (FAC ¶¶

3 31-32.) Plaintiff contends that Supervisors Daniels and Peters were copied on all of his

4 complaints, accommodations requests, and EEO communications. (FAC ¶ 38.)

5 On June 16, 2023, GSA terminated Plaintiff’s probationary employment. (FAC ¶ 34.)

6 Plaintiff’s termination occurred one day after his participation in an EEO and AFGE interview.

7 (FAC ¶ 35.)

8 B. Procedural Background

9 On May 11, 2026, the Court dismissed Plaintiff’s initial complaint with leave to amend.

10 (5/11/26 Order, Dkt. No. 24.) On May 18, 2026, Plaintiff filed a first amended complaint

11 consisting of four causes of action: 1) Retaliation (Title VII), 2) Hostile Work Environment (Title

12 VII), 3) Disparate Treatment (Title VII), and 4) “Failure to Accommodate/Disability

13 Discrimination” (Rehabilitation Act).

14 On June 1, 2026, Defendant filed a motion to dismiss. (Def.’s Mot., Dkt. No. 26.) On June

15 4, 2026, Plaintiff filed an opposition. (Pl.’s Opp’n, Dkt. No. 27.) On June 22, 2026, Defendant

16 filed a reply. (Def.’s Reply, Dkt. No. 29.)

17 II. LEGAL STANDARD

18 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based

19 on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule

20 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250

21 F.3d 729, 732 (9th Cir. 2001).

22 In considering such a motion, a court must “accept as true all of the factual allegations

23 contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation

24 omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or

25 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.”

26 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing

27 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation

1 A claim is plausible on its face when a plaintiff “pleads factual content that allows the

2 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

3 Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate “more

4 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

5 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of

6 a cause of action” and “conclusory statements” are inadequate. Iqbal, 556 U.S. at 678; see also

7 Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“[C]onclusory allegations of

8 law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a

9 claim.”). “The plausibility standard is not akin to a probability requirement, but it asks for more

10 than a sheer possibility that a defendant has acted unlawfully . . . When a complaint pleads facts

11 that are merely consistent with a defendant's liability, it stops short of the line between possibility

12 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

13 557) (internal citations omitted).

14 Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no

15 request to amend is made “unless it determines that the pleading could not possibly be cured by

16 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations

17 omitted).

18 III. DISCUSSION

19 Defendant moves to dismiss all causes of action for failure to state a claim under Federal

20 Rule of Civil Procedure 12(b)(6). (Def.’s Mot. at 1.)

21 A. Individual causes of action

22 i. Count 1: Retaliation

23 Plaintiff’s first cause of action is for retaliation under Title VII. (FAC ¶¶ 35-45.) To state a

24 claim for retaliation, a plaintiff must allege facts plausibly suggesting that: (1) he engaged in a

25 protected activity; (2) he was subsequently subjected to an adverse employment action; and (3) a

26 causal link exists between the two. Manatt v. Bank of America, 339 F.3d 792, 800 (9th Cir. 2003).

27 In moving to dismiss, Defendant contends that this claim should be dismissed for multiple

1 Plaintiff made complaints, “it is possible that he complained about conduct that did not constitute

2 discrimination or harassment.” (Def.’s Mot. at 6-7.) This argument is not well taken, because

3 Plaintiff clearly alleges that he engaged in EEO activity related to “workplace treatment and

4 accommodation issues.” (See FAC ¶ 37(a).)

5 Second, Defendant argues that the complaint fails to allege a causal connection between

6 Plaintiff’s “EEO protected activity” on May 14-15, 2023 and the alleged adverse actions that

7 followed. (Def.’s Mot. at 7.) In opposition, Plaintiff argues that the temporal proximity of the

8 adverse actions supports a causal inference of retaliation. (Pl.’s Opp’n at 3.) Plaintiff is correct.

9 Causation can be inferred by the temporal proximity between the protected activity and the

10 adverse actions. Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004) (“The temporal

11 proximity between [the plaintiff’s] protected activities and [the defendant’s] adverse acts

12 sufficiently raises an inference of a causal link.”); see also Cloud v. Brennan, 436 F. Supp. 3d

13 1290, 1300 (N.D. Cal. 2020) (noting that allegation of participating in EEO process prior to

14 alleged adverse actions is sufficient).

15 Third, Defendant contends that, while Plaintiff alleges that he filed his EEO Complaint on

16 June 16, 2023, he does not allege that he filed it prior to his termination. (Def.’s Mot. at 7.) In

17 opposition, Plaintiff argues that he first engaged in protected EEO activity no later than May 2023.

18 (Pl.’s Opp’n at 3.) The Court notes that Plaintiff alleges that he participated in an EEO interview

19 the day before his termination. (See FAC ¶ 35.) At the pleadings stage, this is sufficient.

20 Accordingly, the motion is denied as to the retaliation claim.

21 ii. Count 2: Hostile Work Environment (Title VII)

22 Plaintiff’s second cause of action is for hostile work environment under Title VII. (FAC ¶¶

23 46-60.) A hostile work environment claim requires a plaintiff to allege (1) he was subjected to

24 verbal or physical conduct a based on a protected class, (2) the conduct was unwelcome, and (3)

25 the conduct was sufficiently severe or pervasive to alter the conditions of employment and create

26 an abusive work environment. Vasquez v. Cnty. of Los Angeles, 349 F.3d 634 (9th Cir.2003). The

27 Supreme Court has held that claims for hostile work environment must be based on more than

1 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). While discrete acts “may be

2 considered for purposes of placing non-discrete acts in the proper context,” a hostile work

3 environment claim must “rise to the level of an actionable claim” based on “timely nondiscrete

4 acts.” Porter v. California Dep’t of Corr., 419 F.3d 885, 893 (9th Cir. 2005).

5 First, Defendant moves to dismiss on the grounds that the operative complaint fails to

6 describe a hostile work environment as a matter of law. (Def.’s Mot. at 8.) Specifically,

7 Defendant contends that Plaintiff “does not allege any comments, ridicule, intimidation or threats

8 based on his race, ethnicity, or disability status.” Id. (emphasis in original). In opposition, Plaintiff

9 argues that the FAC alleges a pattern of repeated hostile conduct by a supervisor, threatening and

10 intimidating statements, ongoing workplace targeting and restrictions, and conduct that affected

11 the conditions of his employment. (Pl.’s Opp’n at 5.) The Court notes that the opposition failed to

12 identify the incidents that, in totality, constitute a hostile work environment. See id. Furthermore,

13 the cause of action alleges that the adverse treatment began shortly after he “engaged in protected

14 EEO activity in May 2023….” (FAC ¶ 47.) Thus, Plaintiff appears to be rehashing his retaliation

15 claim.

16 Moreover, Defendant correctly asserts that the only specific acts of purported

17 harassment alleged is that Supervisor Daniels made a statement that Plaintiff is “a Middle Eastern

18 Muslim.” (Def.’s Mot. at 8 (citing FAC ¶ 52).) Even if this statement constituted a derogatory

19 remark referencing Plaintiff’s protected characteristics in the context of their conversation where

20 she allegedly threatened his probation, one or two derogatory statements is not sufficient for a

21 hostile work environment claim. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1115 (9th Cir.

22 2004) (quoting Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) (“Although it is clear that

23 ‘[n]ot every insult or harassing comment will constitute a hostile work environment,’ ‘[r]epeated

24 derogatory or humiliating statements ... can constitute a hostile work environment.’”) In an

25 apparent attempt to plead a hostile work environment without providing actual facts, Plaintiff

26 alleges that “[t]he conduct described… was not isolated, but occurred repeatedly and in

27 combination with exclusion from workplace communications and operational processes, creating a

1 54.) One or two statements from Ms. Daniels, even with a vague allegation that they were not

2 isolated incidents, is not sufficient to state a claim for hostile work environment.

3 At the hearing, Plaintiff explained that, during the same week of his employment,

4 Supervisor Daniels expressed surprise that he was from Afghanistan, because she believed he was

5 from Iran. She then described Afghanistan as “war torn” and opined that the country was “f***ed

6 up.” During Plaintiff’s employment, Supervisor Daniels would refer to him as “kid” instead of his

7 name, and send him emails that were informal and curt. Plaintiff also alleged that he was

8 excluded from the weekly project manager meetings, had projects taken away, and was otherwise

9 isolated. While this may not be an ideal working environment, these additional allegations are not

10 sufficient to state a claim for hostile work environment based on national origin or religion.

11 Instead, Plaintiff continues to attempt to shoehorn employment decisions with which he

12 disagreed into the hostile work environment framework, which is not sufficient to state a claim.

13 See Keller-McIntyre v. San Francisco State Univ., No. C-06-3209 MMC, 2007 WL 776126, at

14 *13 (N.D. Cal. Mar. 12, 2007) (allegation involved “employment decisions with which she

15 disagreed” rather than “physical or verbal conduct of a harassing nature”).

16 Accordingly, the hostile work environment claim is dismissed without leave to amend,

17 because any amendment would be futile.

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iii. Count 3: Disparate Treatment (Title VII - Race, Color, National Origin,

19 Religion)

20 Plaintiff’s third cause of action is for discrimination under Title VII. (FAC ¶¶ 61-76.) To

21 establish a prima facie case of disparate treatment under Title VII, a plaintiff must show that (1) he

22 is a member of a protected class, (2) he was qualified for the position, (3) he suffered an adverse

23 employment decision, and (4) he was treated differently than similarly situated persons outside of

24 his protected class. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); Leong v.

25 Potter, 347 F.3d 1117, 1124 (9th Cir. 2003). At the threshold pleading stage, a cognizable

26 disparate treatment claim requires a plaintiff to “allege either direct evidence of discrimination,

27 such as derogatory comments about his gender or race, or circumstantial evidence, ‘which may

1 more favorably or that other circumstances surrounding the at-issue employment action give rise

2 to an inference of discrimination.’” Austin v. City of Oakland, No. 17-CV-03284 YGR, 2018 WL

3 2427679, at *4 (N.D. Cal. May 30, 2018) (quoting McCarthy v. Brennan, 2016 WL 946099, at *4.

4 (N.D. Cal. 2016)).

5 Defendant argues that Plaintiff fails to allege specific facts to show that any “comparators”

6 were treated more favorably. (Def.’s Mot. at 11.) The Court disagrees. Plaintiff alleges that

7 another similarly situated employee in a similar position, who did not share Plaintiff’s protected

8 characteristics, was approved for full-time telework while Plaintiff was not. (FAC ¶¶ 17, 64.)

9 Discovery may reveal that this coworker is not a comparator, but that is more appropriately

10 addressed on summary judgment.

11 Accordingly, the motion is denied as to the disparate treatment claim.

12 iv. Count 4: Failure to Accommodate

13 Plaintiff’s fourth cause of action is for failure to accommodate1 under the Rehabilitation

14 Act. (FAC ¶¶ 71-83.) “To establish a prima facie case of failure to accommodate under the

15 Rehabilitation Act, [the plaintiff] must prove: (1) that he has a disability, (2) is otherwise qualified

16 for employment, meaning that he could perform the essential job functions with or without a

17 reasonable accommodation, and (3) that Appellee refused to reasonably accommodate his

18 disability.” See Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993). Reasonable

19 accommodations are “mechanisms to remove barriers or provide assistance to disabled individuals

20 so that they can perform the “essential functions” of employment positions. Cripe v. City of San

21 Jose, 261 F.3d 877, 889 (9th Cir. 2001).

22 Here, Plaintiff alleges that he has specific medical conditions, that he can perform the

23 essential functions of his position with reasonable accommodations, that he requested telework

24 and flexible scheduling as reasonable accommodations for his disabilities, and that he provided

25 medical documentation on April 13-14, 2023 and June 8, 2023. (FAC ¶¶ 72-74.) Plaintiff claims

26 that Defendant denied his accommodation requests without engaging in a good faith interactive

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1 process, and subjected him to adverse employment actions, including denial of overtime,

2 workplace restrictions, and termination. (FAC ¶¶ 76-81.)

3 Defendant moves to dismiss on the grounds that Plaintiff has failed to adequately allege

4 that he had a cognizable disability that requires reasonable accommodation. (Def.’s Mot. at 14.)

5 To allege a covered disability under the Rehabilitation Act, the complaint must allege (1) that

6 Plaintiff had a physical or mental impairment, (2) that the particular life activity constitutes a

7 major life activity, and (3) that his alleged impairment substantially limits his ability to perform

8 the identified major life activity. See Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1169

9 (9th Cir. 2008)(citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998)). Plaintiff corrected the

10 deficiencies from the original complaint, and adequately alleges a disability under the

11 Rehabilitation Act:

During Plaintiff’s employment, Plaintiff had medical conditions

12 including diabetes, anxiety related disorders, depression, insomnia,

panic-related symptoms, and stress-related conditions that

13 substantially limited major life activities including sleep,

concentration, endocrine function, and stress regulation. With

14 reasonable accommodation, including telework and schedule

flexibility, Plaintiff could perform the essential functions of his

15 position.

16 (FAC ¶ 72.) Moreover, despite Defendant’s arguments to the contrary, Plaintiff does clearly

17 allege that he “requested reasonable accommodations, including telework and flexible scheduling,

18 to manage his medical conditions and maintain consistent work performance” on both April 13-

19 14, 2023 and on June 8, 2023, and that he “provided supporting medical documentation to his

20 supervisors and/or management personnel.” (FAC ¶¶ 73-74.)

21 Accordingly, the Court finds that Plaintiff sufficiently states a claim for failure to

22 accommodate, so the motion is denied as to this claim.

23 B. Plaintiff’s failure to attach the EEO Complaint

24 In dismissing the original complaint, the Court ordered Plaintiff to “attach a copy of his

25 June 16, 2023 EEO complaint as an exhibit.” (5/11/26 Order at 13.) At the hearing, Plaintiff

26 explained that he was originally unable to locate a copy of his claim, but he recently found a hard

27 copy. Thus, within 14 days of this order, Plaintiff is ordered to file an errata to the first amended

1 IV. CONCLUSION

2 For the reasons set forth above, the motion to dismiss is GRANTED IN PART AND

3 DENIED IN PART with leave to amend. Specifically, the hostile work environment claim is

4 || dismissed with prejudice, because any amendment would be futile. The motion is denied in all

5 other respects. Defendant shall file an answer within 21 days of this order.

6 Additionally, Plaintiff shall file an errata to the first amended complaint within 14 days of

7 || this order with the EEO complaint attached as Exhibit B.

8 Finally, the initial case management conference set for September 15, 2026 is continued to

9 || October 13, 2026 at 1:30 p.m. via videoconference. The joint case management statement is due

10 on or before October 6, 2026.

1] IT IS SO ORDERED.

« 12 || Dated: August 20, 2026

1 DIS A. WESTMORE

5 14 United States Magistrate Judge

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