Musa v. Footprint LLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Elseddig Musa,
Plaintiff,
v.
Footprint LLC,
Defendant.
No. CV-24-02980-PHX-DJH
ORDER
Before the Court is Footprint, LLC’s (“Footprint”) Motion to Dismiss the entirety
of Plaintiff Elsseddig Musa’s (“Musa”) Complaint in its entirety. (Doc. 13). Musa filed
Response opposing the Motion to Dismiss. For the reasons stated below, the Court will
grant the Motion to Dismiss in part and deny it in part.
I. Background
Musa states in his Complaint that he holds a BS degree in electrical engineering and
an MBA. At the time of his employment with Footprint, he had a BS degree. (Doc. 1 at ¶
2). He attained the MBA later. (Id.) To obtain employment back in 2021, he went to a
staffing agency by the name of Liberty Staffing. (Id. at 7). After interviewing Musa and
having him fill out an application, Liberty Staffing referred him to Footprint. (Id.) Musa
avers that he never hid his felony conviction, and in fact disclosed it on his application
form. (Id.) While Musa initially started out working in production at Footprint, he was
elevated to a position as a machine operator. (Id.) On the recommendation of his direct
manager, Musa started the process of becoming a full-time employee with Footprint on
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about March 2022. (Id.) Musa considers a full-time position a promotion in his Complaint
and refers to it as such. (Id. at 9). According to Musa, this is when things started to fall
apart. He says that while he was awaiting his promotion, he started to feel unwelcome at
work, particularly with Human Resources (“HR”). (Id. at 12). Musa believes that the
genesis of the deterioration of his relationship with HR has its root in his religious practices.
(Id.) To adhere to his faith properly, he alleges he found a place to pray three times a day
while at work. (Id.) Then, after his background check for his full-time employment came
back positive for a 2016 conviction, he says he was terminated on March 30, 2022. (Id. at
13, 14 & 16). Now, he brings the following three claims against Footprint: (1) disparate
impact under Title VII of the Civil Rights Act; (2) disparate treatment under Title VII of
the Civil Rights Act; and (3) a count three that only lists “Title VII.” (Doc. 1 at 4–5). The
Motion to Dismiss is denied as to counts one and two and granted for count three.
II. Legal Standard
A successful motion to dismiss under Rule 12(b)(6) must show either that the
complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its
theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (citing Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). A complaint that sets
forth a cognizable legal theory will survive a motion to dismiss if it contains “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). 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. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
In ruling on a 12(b)(6) motion, the Court takes the plaintiff's well-pleaded factual
allegations as true and construes them in the light most favorable to the plaintiff. Cousins
v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual
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allegations are not entitled to a presumption of truth and are not sufficient to defeat a
12(b)(6) motion. Iqbal, 556 U.S. at 678. A complaint does not need to have detailed
factual allegations, but it must have more than a “the-defendant-unlawfully-harmed-me
accusation.” Id.
III. Discussion
The Court finds that Musa has alleged enough facts to withstand a motion to dismiss
for both his disparate impact and disparate treatment claim. He has not for count three of
his Complaint, but the Court will allow leave to amend.
A. Disparate Impact
Footprint disputes that Musa has properly alleged the elements of a disparate impact
claim or identified the discriminatory policy at issue. (Doc. 13 at 5–6). In opposition,
Musa claims he has identified enough factual details to conform to the elements of a claim
as required under Title VII. (Doc. 15 at 2). The Court agrees.
Under the disparate impact theory, a plaintiff is not required to prove intentional
discrimination to demonstrate that an employer has violated Title VII. Watson v. Fort
Worth Bank & Tr., 487 U.S. 977, 986 (1988). An employer can be found to have violated
Title VII, and section 703 specifically, if a facially neutral employment practice has
significant adverse effects on protected groups. Id. The support for a disparate impact
claim is usually found in statistical disparities and the focus is on competing explanations
for these disparities. Id. A necessary premise of a disparate impact claim is that some
employment practices, although endorsed without a deliberately discriminatory motive,
practically function as intentional discrimination. Id. at 987. A prima facie case requires
the following elements: “(1) show a significant disparate impact on a protected class or
group; (2) identify the specific employment practices or selection criteria at issue; and (3)
show a causal relationship between the challenged practice or criteria and the disparate
impact.” Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1190 (9th Cir, 2002).
At this stage of the proceedings, Plaintiff has alleged enough for a viable disparate
impact claim. Musa stated in his Complaint that he is a Muslim. (Doc. 1 at 1). He identified
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background checks as the employment practice or policy at issue in his Complaint. (Doc.
1 at ¶¶ 13, 14, 17 & 20). Then, he stated the following: “[M]uslims along with Blacks and
Latinos have higher rates of arrest and conviction rates then do whites.” (Doc. 1 at 5–6).
Put simply, Musa is stating that Footprint’s background check and screening practices have
a significant disparate impact on Muslims because they suffer from higher rates of arrest.
In turn, this leads to disqualifying them from employment. In other words, while the
practice is facially neutral, it has a discriminatory effect on Muslims. Nothing more is
required from Musa at the motion to dismiss stage and his disparate impact claim may go
forward. Ashcroft, 556 U.S. at 678 (“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.
B. Disparate Treatment
Footprint argues that Musa’s claim for disparate treatment does not meet the
elements required for such a claim. (Doc. 13 at 7–8). By not mentioning his exact race,
according to Footprint, Musa cannot bring a race discrimination claim as part of his
disparate treatment claim. (Id. at 9). According to Footprint, Musa also failed to point to a
“similarly situated” employee who received more favorable treatment than he did. (Id. at
8). Musa disagrees and states that he has made out a prime facie case for disparate treatment
for both his race and his religion. (Doc. 15 at 4). The Court also disagrees with Footprint
that Musa has not alleged enough to withstand a motion to dismiss as to this claim.
Unlike a disparate impact claim, disparate treatment claims require discriminatory
motive on the part of the employer when adopting a challenged policy. Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, fn. 15 (1977). Mere awareness the employer
might have had about the adverse impacts of the policy is not enough. Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). The plaintiff must
show that the employer chose a specific policy because of its effect on protected classes.
Id. The elements for disparate treatment are as follows: (1) plaintiff is part of a protected
class; (2) plaintiff is qualified for the position at issue; (3) he suffers from an adverse
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employment action; and (4) similarly situated individuals outside of the plaintiff’s
protected class are treated more favorably than he is. Davis v. Team Elec. Co., 520 F.3d
1080, 1089 (9th Cir.2008).
Musa has also stated enough to go forward on his disparate treatment claim. He is a
member of a protected class because he is a Muslim and because of his race. He says he
was qualified for his position: “[H]R flagrantly ignored Musa’s superior credentials for full
time employment and instead terminated a valuable and productive employee based on
HR’s religious prejudice and Musa’s race.” (Doc. 1 at 6). Musa suffered an adverse
employment action by not being offered a full-time role with Footprint. He goes on to claim
that “A co-worker in his department with skills inferior to Musa’s had a conviction. That
employee was placed on full-time status at the same time Musa was terminated allegedly
due to a years old convictions superseded by consistent high performance and his degrees.”
(Doc. 1 at ¶ 20). Essentially, he is saying that someone similarly situated, also with a
conviction, but not a Muslim, and not Musa’s race, was treated more favorably than he
was. Musa specifies this assertion in his Response to Footprint’s Motion to Dismiss:
“Plaintiff alleges a similarly situated individual with a conviction but of a different
protected background was treated more favorably.” (Doc. 15 at 4). And while Footprint
clings to the argument that Musa did not identify his race, he very cleared identified it in
his EEOC Complaint and his Response to Footprint’s Motion to Dismiss. (Doc. 13-1 at 2–
3., Ex. A, EEOC and Civil Rights Division Complaint; see also Doc. 15, Response to
Motion to Dismiss (“Plaintiff was denied a full-time opportunity based on Defendant’s
discriminatory application of background check policies, disproportionately affecting
Muslims and Africans.”)). These allegations suffice at this stage. Silvas v. E*Trade Mortg.
Corp., 514 F.3d 1001, 1003 (9th Cir. 2008) (stating that the Court construes the well-
pleaded factual allegations as true).
C. Count III of the Complaint
The third Count of the Complaint, contrary to the other two, has not stated enough
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to withstand a motion to dismiss. It generally pleads the following:
Footprint’s termination of Musa was wrongful and illegal
pursuant to the Civil Rights Act of 1964, 42 U.S.C. A. 2000e
et. seq. and caused Musa to suffer actual damages for loss of
income and emotional distress entitling Musa to an award of
damages in an amount to be established in this action.
As plead, the Court cannot make out a claim and conclusory allegations are not
sufficient to withstand a motion to dismiss. However, the Court will allow Musa leave to
amend his Complaint.
IV. Service and Exhaustion of Administrative Remedies
Footprint also argues that Musa did not timely file his EEOC Complaint, did not
exhaust his administrative remedies, and did not properly serve Footprint. The Court does
not find that any of those arguments warrant dismissal of the lawsuit at this stage.
i. Timeliness of Musa’s EEOC and Civil Rights Division Claim
It is certainly true that Musa needs to have filed a timely charge with the EEOC and
timely acted upon his right-to-sue letter. See 42 U.S.C. § 2000e-5(e)-(f); see also Myers-
Desco v. Lowe’s HIW, Inc., 484 Fed. Appx. 169, 171 (9th Cir. 2012). For a charge to be
timely filed, it needs to have been filed within 180 days of the alleged unlawful
employment practice. 42 U.S.C. § 2000e–5(e)(1). The 180-day deadline is extended to 300
days if the charge is initially filed with a state agency that enforces its own anti-
discrimination laws. EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 585 (9th Cir.2000);
see also 42 U.S.C. § 2000e–5(e).
Footprint asserts that Musa did not timely file his EEOC Complaint after his
termination by stating the following: “Plaintiff has not alleged that he complied with the
administrative exhaustion requirements by timely filing a charge.” (Doc. 13 at 10). Leaving
the merits of Footprint’s argument to one side, the motion to dismiss stage is the improper
time for the Court to decide a statute of limitations defense because it raises a factual
question. See DeSoto Cab Co., Inc. v. Uber Techs., Inc., 2018 WL 10247483, at *13 (N.D.
Cal. Sept. 24, 2018) (“Where the applicability of a statute of limitations concerns a factual
dispute . . . . it is inappropriate to resolve a statute of limitations issue at the motion to
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dismiss stage.”). Therefore, the Court cannot provide a resolution on the statute of
limitations issue Footprint has raised, at this time.
ii. Exhaustion of Administrative Remedies
The purpose of Title VII’s administrative exhaustion requirement is to give
employers notice of the claims against them and an opportunity to address these issues
before litigation. See Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). In determining
the scope of administrative exhaustion, it is well-established in the Ninth Circuit that a
plaintiff’s EEOC charge should be construed “with the utmost liberality.” Kaplan v.
International Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir.
1975). Exhaustion should be found for all claims that either fell within the scope of the
EEOC’s actual investigation or an EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.” E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891,
899 (9th Cir. 1994).
Footprint insists that Musa’s EEOC Complaint does not provide them with notice
of the claims against them. (Doc. 13 at 12–13). However, Musa’s three-paragraph EEOC
charge describes that he applied for full-time status at Footprint, for a role that he believes
he was fully qualified for but did not end up getting because he did not clear his background
check. (Doc. 13-1 at 2–3., Ex. A, EEOC and Civil Rights Division Complaint). He stated
in his EEOC Complaint that he believes Footprint’s background check policy is
discriminatory. (Id.) He also stated the following: “I believe I have been discriminated
against because of my religion and race (American Black), in violation of Title VII of the
Civil Rights Act 1964 as amended.” (Id.) Construed liberally, along with the rest of his
EEOC and Civil Rights Division Complaint, Musa’s claims for impact and treatment fall
within the scope of his EEOC Complaint.
iii. Proper Service under Rule 4
As a final point, Footprint states that Musa did not properly effectuate service for
his Summons or his Complaint because he personally served Footprint’s Chief People
Officer at its Gilbert office. (Doc. 13 at 13–14). By serving Footprint’s Chief People
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Officer himself, Footprint contends that Musa violated Rule of Civil Procedure 4, which
only allows non-parties over the age of 18 to effectuate service. (Id. at 14; see also Fed.
R. Civ. P. 4(c)(2) (mandating this requirement)).
The Court is required to apply a “liberal and flexible construction” of the service
rules, especially when a pro se plaintiff is involved. Borzeka v. Heckler, 739 F.2d 444, 447
(9th Cir. 1984). The Court can exercise broad discretion to dismiss the case or retain it but
quash service. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006).
What is not required is dismissal of the action for failure to serve properly if “(a) the party
that had to be served personally received actual notice, (b) the defendant would suffer no
prejudice from the defect in service, (c) there is a justifiable excuse for the failure to serve
properly, and (d) the plaintiff would be severely prejudiced if his complaint were
dismissed.” Borzeka, 739 F.2d at 447.
Here, Footprint has made an appearance in this case. And Footprint does not argue
that it did not receive actual notice or that it would suffer any prejudice from the defective
service. Clark v. Washington State Dep't of Health, 735 F. Supp. 3d 1334, 1349 (W.D.
Wash. 2024) (outlining the court’s decision-making process in this exact scenario). Musa,
on the other hand, would certainly be prejudiced if he had to refile his lawsuit. Good cause
also exists to provide Musa with additional time to effectuate service because he made a
reasonable effort to complete service within the required time and because his attempt
provided Footprint with actual notice of the lawsuit. Clark, 735 F. Supp. 3d at 1351.
Therefore, the Court will allow Musa more time to effectuate service properly under
Federal Rule of Civil Procedure 4.
V. Leave to Amend
Where a district court grants a motion to dismiss, it should generally provide leave
to amend unless the complaint could not be saved by any amendment. See Fed. R. Civ. P.
15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
The Court “may exercise its discretion to deny leave to amend due to ‘undue delay, bad
faith or dilatory motive on [the] part of the movant, repeated failure to cure deficiencies by
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amendments previously allowed undue prejudice to the opposing party . . . [and] futility of
amendment.’ ” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th Cir.
2010) (quoting Foman v. Davis, 371 U.S. 178, 182, (1962)). Leave to amend may be
denied when “the court determines that the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-
Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). In sum, leave to amend “is
properly denied [where] amendment would be futile.” Carrico v. City and Cty. of San
Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).
The Court will grant Musa leave to amend count three of his Complaint to state a
legally cognizable theory, if he so wishes. Musa’s complaint must be amended to address
the deficiencies identified above and he must clearly designate on the face of the document
that it is the “First Amended Complaint.” Musa should tell his case’s story in a short and
plain manner then state each claim or cause of action a separate count, alleging facts that
satisfy all the elements of the claims he is bringing. For example, he must allege a private
cause of action to base each of her claims, identify the legal elements to meet that cause of
action, and allege sufficient and particularized facts that show how she meets each requisite
element.
Musa’s amended complaint should follow the form detailed in Rule 7.1 of the Local
Rules of Civil Procedure (“LRCiv”). Examples of different types of complaints
demonstrating the proper form can be found in the appendix of forms that is contained with
the Federal Rules of Civil Procedure (forms 11–21).1 This amended complaint must be
retyped or rewritten in its entirety and may not incorporate any part of the original
Complaint by reference. It must also clearly state the grounds for this Court’s jurisdiction,
either by bringing a federal cause of action or by showing how the Court may exercise its
diversity jurisdiction. See Fed. R. Civ. P. 8(a)(1).
The Court recommends Musa review the information available in the District
1 Those forms as well as the Federal Rules of Civil Procedure and the Local Rules, as well
as other information for individuals filing without an attorney may be found on the District
Court’s internet web page at www.azd.uscourts.gov/.
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Court’s Handbook for Self-Represented Litigants, which is available online.2 Musa should
also be aware that “an amended complaint supersedes the original complaint and renders
it without legal effect[.]” Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012) (en
banc). Thus, after amendment, the Court will treat an original complaint as nonexistent.
Id. at 925.
Accordingly,
IT IS ORDERED that Footprint LLC’s Motion to Dismiss (Doc. 13) is granted in
part and denied in part. It is granted as to Count Three of Plaintiff Elseddig Musa’s
Complaint and denied as to Counts One and Two.
IT IS FURTHER ORDERED that Plaintiff is allowed to file a First Amended
Complaint for Count Three within thirty (30) days of the date this Order is entered.
IT IS FINALLY ORDERED that Plaintiff should serve the Summons and his
Original Complaint (Doc. 1) on Defendant Footprint LLC in a way that conforms to the
requirements of Federal Rule of Civil Procedure 4 and should do so no later than February
27, 2026.
Dated this 17th day of February, 2026.
Honorable Diane J. Humetewa
United States District Judge
2 The Handbook may be found at http://www.azd.uscourts.gov/handbook-self-represented-
litigants.
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