ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiff Barbara Webb was formerly employed by the County of Trinity. She alleges that after various misdeeds by her supervisor and other county employees she was wrongfully demoted and then terminated. After proceedings before the California State Personnel Board, the County was ordered to reinstate plaintiff, but the County has refused to comply with this order.

One would expect, therefore, that this would be an easy case. Belying this apparent simplicity, plaintiff's operative complaint enumerates nine claims, challenging the initial actions by the County and individual defendants in addition to defendants' violation of the Personnel Board order. Defendants move to dismiss all claims. In opposing the motion, plaintiff references only four of these claims. The court interprets this as stating non-opposition to dismissal of the others. Of the four disputed claims, one is characterized as a substantive due process claim, but invokes numerous legal theories at most tangentially related to due process. The second disputed claim argues that the refusal to rehire plaintiff deprived her of procedural due process. Plaintiff's third claim is brought under 42 U.S.C. § 1985, and alleges that defendants violated plaintiff's equal protection rights by discriminating against Christians. Finally, the fourth disputed claim is for intentional infliction of emotional distress.

The court resolves the motion to dismiss on the papers and after oral argument. For the reasons stated below, the motion to dismiss is granted except as to plaintiff's allegations that the county retaliated against her for speech protected by the First Amendment.

I. Background

Before discussing the facts, the court must address the manner of their presentation. The operative Second Amended Complaint ("SAC") presents a threadbare recitation of the facts, alleging the identities of the parties. Copies of three previously-filed government tort claims, presumably filed pursuant to Cal. Gov.Code § 905, are attached to the complaint, and the complaint explicitly incorporates the allegations contained therein. SAC ¶ 11. Although these present a long litany of potential misdeeds, plaintiff now contends that neither the complaint nor the tort claim forms were intended to present a full picture of the facts. Pl.'s Opp'n at 3. While plaintiff's opposition purports to provide various additional facts, these facts are in general not new, instead reiterating the allegations contained in the SAC and the government tort claim forms.

In this order, the court summarizes only the alleged facts that plaintiff argues are relevant to the disputed causes of action.

A. Events Leading to Plaintiff's Termination

Plaintiff was formerly employed by County of Trinity as social worker supervisor II. SAC ¶ 1. On February 7, 2007, plaintiff received a notice of intent to demote. SAC Ex. 1, at 18.1 Plaintiff was placed on administrative leave on that time. On April 16, 2007, she received notice of her disciplinary demotion to the position of Social Worker III, effective February 15, 2007. Id. and SAC ¶ 16. Plaintiff alleges that this demotion was without good cause. SAC ¶ 6. Id. She was ordered to return to work on April 30, 2007. Prior to her scheduled return, on April 25, the County sent a notice of intent to terminate. SAC Ex. 1, at 18. On May 21, 2007, she filed a government tort claim against the County complaining of the above conduct. Id., SAC ¶ 7. This claim further alleges that plaintiff was "harassed, ridiculed, degraded, ignored, and subject[ed] to mental anguish." SAC Ex. 1, at 18. On May 25, 2007, the County terminated plaintiff's employment, again allegedly without good cause. SAC ¶ 8, Ex. 2 at 26. In the fall of 2007, plaintiff filed two additional government tort claims against the County. SAC Ex. 2, 3.

Plaintiff attributes a variety of motives to defendants' conduct. The SAC presents a whistle-blower theory, which is emphasized in that it the only theory supported by specific factual allegations in the SAC itself. During plaintiff's employment, she was supervised by defendant Wright. Plaintiff complained that her department, Child Welfare Services ("CWS"), was underfunded, in part because federal funds that should have gone to CWS were allocated to other programs. SAC ¶ 15. Plaintiff alleges that some of this funding went to the Sheriff's department, apparently to pay for the Sheriff's assistance to CWS, Opp'n at 2, but it is unclear whether plaintiff contends that funding also went to other programs. SAC Ex. 1 at 19, Ex. 2 at 27-28, Ex. 3 at 35 (alleging that funds were diverted without specifying the uses to which the funds were actually put). The lack of funding for plaintiff's department and concomitant staffing shortage made it difficult for plaintiff to fulfill her duties. SAC Ex. 1 at 19, Ex. 3 at 35. Wright allegedly threatened to terminate plaintiff if plaintiff complained about this allocation to anyone else. SAC ¶ 15. Notwithstanding this threat, when an audit of the county was forthcoming, plaintiff "was prepared to tell the truth to auditors" and informed Wright she would do so. Id. Plaintiff does not allege, however, that she actually spoke of the funding allocation to anyone other than Wright. This audit was completed in December 2006.

Plaintiff alleges that shortly after the above, "discipline of the plaintiff began based upon false charges." SAC ¶ 15. She contends that the "circumstances and timing" indicate that the discipline was intended to discredit plaintiff before she could speak to the auditors or others about the funding. Insofar as the "discipline" refers specifically to plaintiff's demotion and termination, the court notes that those events occurred in 2007, whereas the incorporated government claim form indicates that the audit concluded in December of 2006. See SAC Ex. 1 at 19.

Separate from this whistle-blower theory, plaintiff cursorily alleges numerous other improper motivations for her treatment. The SAC alleges, without explanation, that:

SAC ¶ 14. The attached government claim forms provide some facts relating to medical leave and to religion.

As to medical leave, plaintiff alleges that in a period ending July 11, 2006, plaintiff was on "Family Care Medical Leave" in order to care for her hospitalized mother. SAC Ex. 1 at 19. Shortly after her return, on July 17, Wright threatened plaintiff with loss of her flex day if plaintiff sought additional leave. Id. On August 9, 2006, plaintiff requested to use vacation time to provide further care for her mother. SAC Ex. 3 at 36. This request was denied, and Wright criticized plaintiff's requests in a subsequent performance evaluation. Id. On August 22, 2006, plaintiff's mother passed away. SAC Ex. 1 at 19. Plaintiff was only permitted to take one and a half days off to grieve, with the time coming from plaintiff's earned sick leave. Id.

As to religion, plaintiff's third government claim alleges that she "was repeatedly told [that] there were too many Christians in Children's Protective Services, and was subjected to criticism because she and many of her staff were Christians." SAC Ex. 3 at 28.

The SAC and government claims contain no further allegations regarding equal protection or union activity. Plaintiff's opposition to the present motion indicates that the claim regarding union activity relates to the refusal to re-hire plaintiff after state administrative proceedings, as discussed below.

B. State Administrative Proceedings

Plaintiff appealed her demotion and dismissal. This appeal was heard by a state administrative law judge ("ALJ"), who held a dozen hearings on the matter over the course of two years. The ALJ issued a 49 page order. The ALJ held that some cause existed for the county's actions, but nonetheless reduced the April 16, 2007 demotion to a three month suspension and reduced the May 25, 2007 termination to a demotion from the position of Social Worker Supervisor II to Social Worker III and a six month suspension.2 Defs.' Request for Judicial Notice, Ex. A, at 48. In this suit, plaintiff alleges that contrary to the ALJ's determination, there was not cause for the imposition of any discipline. The ALJ awarded plaintiff back pay, with interest, and benefits in accordance with the reduction in discipline. The parties apparently agree that these findings obliged the County to re-hire plaintiff.

The ALJ's order was reviewed by the California State Personnel Board. On October 22, 2009, the Board adopted these findings in full, with one exception not relevant here. The County has refused to re-hire plaintiff in the capacity ordered. SAC ¶ 20.3 Neither party has indicated whether the County has complied with the other obligations imposed by this order.

C. Procedural History

The instant suit began with a complaint filed in state court. Before serving the complaint on any defendant, plaintiff substituted a first amended complaint. Defendants removed the suit to federal court on the basis of the federal claims alleged therein. Defendants then filed a motion to dismiss the complaint in its entirety. On the parties' stipulation, the court granted this motion in full and granted plaintiff leave to file an amended complaint without reaching the merits of the motion. Plaintiff filed the operative SAC and defendants timely filed the present motion to dismiss.

II. Standard for a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

A Fed.R.Civ.P. 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation and modification omitted).

To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). "While legal conclusions can provide the framework of a complaint," neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 1949-50. Iqbal and Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Id.; Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "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. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988).

III. Analysis

Many of the factual disputes underlying the present suit were previously adjudicated by the ALJ. Although plaintiff contends that the County's refusal to rehire plaintiff is in violation of the resulting order, plaintiff does not seek to enforce that order here; the SAC seeks only monetary relief. Moreover, the court assumes that appropriate mechanism for enforcement of that order would be a state court petition for a writ of mandamus.

Conversely, while defendants argue that the ALJ's decision has claim and issue preclusive effects on the present action, defendants explicitly disclaim reliance on preclusion in the present motion, asserting that other arguments provide more easily adjudicated grounds for dismissal.

A. Overview of Substantive Due Process and 42 U.S.C. § 1983

Plaintiff's first cause of action is for "Deprivation of Rights/Substantive Due Process; 42 U.S.C. § 1983." The only specific conduct alleged under this claim is imposition of "discipline . . . based on false charges." SAC ¶ 15. This "discipline" apparently refers solely to the demotion and termination, although plaintiff's remaining factual allegations may bear on whether the charges were false.4

42 U.S.C. § 1983 provides a cause of action against any person who, acting under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that "No State shall . . . deprive any person of life, liberty, or property, without due process of law." This prohibition has both procedural and substantive components. The procedural component requires a state actor to provide, before depriving a person of a protected interest, those procedures that are "due" in light of the relevant interests. These procedures may include notice and an opportunity to be heard. The substantive component of due process examines the substance of a decision to effect such a deprivation, with the level of scrutiny dependent upon the nature of the protected interest. See County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

Plaintiff implicitly views § 1983 and the Due Process Clause's substantive protections, working together, as the appropriate method to challenge any state violation of federal law, including, violations of the First Amendment, the Family Medical Leave Act, and the National Labor Relations Act. The court assumes that plaintiff reasoned that § 1983 provides a cause of action for deprivation of federal rights, the Due Process Clause provides a right not to be deprived of life, liberty or property without substantive justification, and action that violates federal law is in a sense unjustified. More subtly, because the amendments constituting the Bill of Rights apply to states only by virtue of their incorporation into the Fourteenth Amendment's Due Process Clause, a claim that a state actor has violated these rights is, in a sense, a due process claim.

In practice, however, a claim that a state actor has violated federal law other than the Due Process Clause is brought under § 1983 without reference to due process. This is so even for claims invoking amendments incorporated against states by operation of the Due Process Clause. See, e.g., Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 748 (9th Cir.2010). This practice favors plaintiffs, as it avoids the narrow standard of review applied in substantive due process cases as well as the need to demonstrate that the federal right or privilege at issue is a life, liberty, or property right protected by the Due Process Clause. In the employment termination context, these barriers can be significant. See, e.g., Engquist v. Or. Dep't of Agric., 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (quoting Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)) (holding that in general "the Due Process Clause does not protect a public employee from discharge, even when such discharge was mistaken or unreasonable.").

Moreover, the Supreme Court and Ninth Circuit have specifically held that substantive due process cannot be used to vindicate other constitutional rights. "If, in a § 1983 suit, the plaintiff's claim can be analyzed under an explicit textual source of rights in the Constitution, a court should not resort to `the more subjective standard of substantive due process.'" Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th Cir.2001) (quoting Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir.1996) (en banc) (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989))). Hufford held that a public employee had raised material questions as to whether defendants terminated him in violation of his First Amendment Rights and then dismissed the employee's substantive due process claim as redundant. Id. Of course, an action may violate multiple constitutional prohibitions, and not every substantive due process claim will be duplicative. For example, the Ninth Circuit has held that a claim that "an otherwise proper interference [with land use] amount[s] to a taking" is distinct from a claim that "a land use action that is `so arbitrary or irrational that it runs afoul of the Due Process Clause.'" Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir.2008) (citing Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 542, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)). Similarly, an adverse employment action could presumably be arbitrary and capricious even if not retaliatory. In the operative complaint, however, plaintiff has not stated such a claim. Instead, plaintiff solely argues that defendants' actions were improper because they deprived her of rights guaranteed by other Constitutional provisions or by federal statutes.

The court is not aware of any case extending Graham and its progeny to hold that a court should not resort to substantive due process when a claim may be analyzed under a federal statute, as opposed to a specific constitutional provision. In this case, it nonetheless appears that plaintiff has invoked substantive due process merely as a result of misunderstanding, rather than out of any need or desire to rely on substantive due process specifically. Accordingly, the court construes plaintiff's discussion of statutory rights as an invocation of those statutes directly, without reference to due process. The court does not reach the question, however, of whether substantive due process could be used in the manner suggested by plaintiff. If plaintiff sees some advantage in this case arising from invocation of substantive due process, plaintiff may restate such a claim in an amended complaint.

B. § 1983 First Amendment Claim

The First Amendment drastically limits government's ability to punish or prohibit speech when government acts as a sovereign. Engquist, 553 U.S. at 600, 128 S.Ct. at 2152 (quoting Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). The Supreme Court has held that government's actions as a sovereign, however, are distinct from government's actions "as proprietor," with the latter including management of its own employees. Id. at 2151. In light of this distinction, the Court has held that "constitutional review of government employment decisions must rest on different principles than review of . . . restraints imposed by the government as sovereign." Id. (quoting Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)).

In numerous cases, the Supreme Court has applied the above distinction in the First Amendment context. The Ninth Circuit recently and repeatedly synthesized these cases to articulate

Anthoine, 605 F.3d at 748 (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009)); see also Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir.2009), Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir.2009), Robinson v. York, 566 F.3d 817, 822 (9th Cir.2009), c.f. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (in a case decided prior to Eng, adopting a separate formulation of the same test). All of these cases concerned summary judgment, rather than a motion to dismiss. Similar multi-part tests are used in the employment discrimination context, where the tests are recognized to be evidentiary presumptions not squarely applicable at the motion to dismiss stage. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (a plaintiff may show a prima facie case for employment discrimination by showing (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding that the McDonnell Douglas test is a route to an evidentiary presumption usable at summary judgment and that this test is not a pleading requirement); see also Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir.2004). Thus, the court doubts whether every step of the Eng framework should be applied at the pleading stage. The court need not resolve this question, however. Defendants only dispute whether plaintiff has alleged the first, second, and third elements of this test.5 Assuming without deciding that plaintiff must allege facts as to these specific issues, the court concludes that plaintiff has done so here.

1. Public Concern

The first issue is whether the speech was on a matter of public concern.6 This is a question of law. Anthoine, 605 F.3d at 748 (citing Eng, 552 F.3d at 1070). "Although the boundaries of the public concern test are not well defined," the Supreme Court has directed courts to "examine the content, form, and context of a given statement, as revealed by the whole record." City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. 1684) (internal quotations removed). Content is the most important factor. Anthoine, 605 F.3d at 748 (citing Desrochers, 572 F.3d at 710).

In this case, plaintiff argues that her complaints to Wright about funding allocation were protected speech. Beginning with the content of this speech, courts have held that public funding decisions are matters of public concern. Pickering v. Bd. of Educ., 391 U.S. 563, 571, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ("the question whether a school system requires additional funds is a matter of legitimate public concern."), Huppert, 574 F.3d at 703-04 (citing Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir.1995)) ("misuse of public funds" is a matter of public concern).

Here, defendants seek to distinguish these cases by arguing that plaintiff was motivated by her personal concern for her own working conditions, rather than concern for the interests of the general public. The Ninth Circuit's has held that "[i]n a close case, when the subject matter of a statement is only marginally related to issues of public concern," the motive for speaking may lead to the conclusion that the speech was not on a matter of public concern. Johnson, 48 F.3d at 425. Thus, in cases where the content of the speech did not demonstrate public concern, the Ninth Circuit has examined motive. Desrochers, 572 F.3d at 714-15, Havekost v. United States Dep't of Navy, 925 F.2d 316, 318 (9th Cir.1991). Motive is not a "litmus test" for public concern, however, Havekost, 925 F.2d at 318, and where the content of the speech plainly implicates the public concern, motive cannot overcome this implication. Thus, the Ninth Circuit has held that statements about "`misuse of public funds . . . are matters of inherent public concern,' regardless of the purpose for which they are made." Posey, 546 F.3d at 1130 (quoting Johnson, 48 F.3d at 425) (emphasis added).

Finally, looking to the context of the speech, the fact that plaintiff was not speaking to the general public, or to anyone outside the place of employment, does not itself demonstrate that her speech was not a matter of public concern. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (school teacher's speech to school principal regarding allegedly racially discriminatory hiring was speech on a matter of public concern); accord Garcetti v. Ceballos, 547 U.S. 410, 420-21, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), Anthoine, 605 F.3d at 749.

Synthesizing these factors, the court concludes that plaintiff has alleged speech that was a matter of public concern.

2. Speech as a Private Citizen or Public Employee

The second step in the Eng inquiry is whether the plaintiff spoke as a private citizen or public employee. "[S]peech which `owes its existence to an employee's professional responsibilities' is not protected by the First Amendment." Huppert, 574 F.3d at 704 (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). The Ninth Circuit has held "that statements are made in the speaker's capacity as citizen if the speaker `had no official duty' to make the questioned statements, . . . or if the speech was not the product of `perform[ing] the tasks [the employee] was paid to perform.'" Posey, 546 F.3d at 1127 (quoting Marable v. Nitchman, 511 F.3d 924, 932-933 (9th Cir.2007) and Freitag v. Ayers, 468 F.3d 528, 544 (9th Cir.2006)). This inquiry is a mixed question of fact and law. Id. at 1129. The plaintiff bears the burden of proof on this issue. Eng, 552 F.3d at 1071.

As with the public concern inquiry, for purposes of the official duties test, the facts that the speech "concerned the subject matter of . . . employment" and was made internally rather than to the public are not dispositive. Marable, 511 F.3d at 932 (citing Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). Instead, Garcetti and the Ninth Circuit cases interpreting it have looked to whether the employee had a duty to make the speech in question.

Cases concluding that speech was made pursuant to an employee's official duties have found a duty to make the specific speech at issue. For example, in Garcetti, the plaintiff assistant District Attorney had written a memo to his supervisor regarding the propriety of a search warrant. 547 U.S. at 421, 126 S.Ct. 1951. The Court held that plaintiff was speaking "as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case." Id. In Freitag v. Ayers, 468 F.3d 528, 544, 546 (9th Cir. 2006) plaintiff prison guard's complaints about prisoners' sexual harassing behavior, when made to her CDCR supervisors, were part of her official duties because she had a specific duty to report prisoner misconduct. In Huppert, 574 F.3d at 705-709, plaintiff police officer's speech was made as part of his official duties because it was either made at the direction of his supervisors or was speech made pursuant to specific duties that California statutes impose on police officers.

On the other hand, Ninth Circuit cases concluding that a public employee spoke as a private citizen found no specific duty to speak. In Marable, plaintiff was a chief engineer on a ferry who had complained of his supervisors' corruption. The plaintiff "had no official duty to ensure that his supervisors were refraining from the alleged corrupt practices." 511 F.3d at 933. In Anthoine, a low-level employee spoke to the Executive Director of alleged misuse of public funds. The Ninth Circuit held that this speech was not made in his employment capacity, because there was no evidence of a duty to "report such misconduct through proper channels," and even if there was such a duty, there no evidence that speech at issue was made through those channels or pursuant to such a duty. Anthoine, 605 F.3d at 750. In Freitag, although the prison guard's complaints to other CDCR officials pursuant to CDCR's official policies were part of the guard's official duties, the guard's complaints to other individuals, including elected legislators, were not. 468 F.3d at 546.

In this case, the allegations before the court do not demonstrate that plaintiff had an official duty to communicate with Wright, her supervisor, regarding the sufficiency of the department's funding or other inter-departmental funding concerns. As noted above, the Ninth Circuit has held that this step of the Eng inquiry is a mixed question of law and fact. Other district courts have held that when a factual dispute existed regarding the scope of an employee's duties, the court cannot decide the issue. See, e.g., McGuire v. Washington, No. C09-5198, 2010 WL 1286830, 2010 U.S. Dist. LEXIS 29870 (W.D.Wash. Mar. 26, 2010) (denying summary judgment), Galli v. Pittsburg Unified Sch.Dist., No. C 09-03775, 2009 WL 4510139, 2009 U.S. Dist. LEXIS 110643 (N.D.Cal. Nov. 30, 2009) (denying a Fed.R.Civ.P. 12(b)(6) motion to dismiss in pertinent part), Creighton v. City of Livingston, 628 F.Supp.2d 1199, 1212 (E.D.Cal.2009) (denying a Rule 12(c) motion for judgment on the pleadings). At this stage, the court assumes that the speech was not made pursuant to plaintiff's official duties.

3. Substantial or Motivating Factor for Adverse Employment Action

The third step of the Eng inquiry, and the final issue challenged by defendants here, is "whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action." One way for a plaintiff to demonstrate such motivation is to show that the employer's proffered evidence for the action was false or pretextual. Anthoine, 605 F.3d at 750. Here, plaintiff alleges that the discipline was baseless, offering considerable detail in this regard. On a motion to dismiss, the court credits plaintiff's allegation that the County would not have disciplined plaintiff but for the protected speech.

Defendants' argument on this issue is that the ALJ determined that the County had good cause to impose some discipline. Defendants have not attempted to show that the ALJ's determinations are entitled to any preclusive effect. Accordingly, at this point the court will not examine these findings or their relationship the ALJ's decision to reduce the discipline imposed— i.e., the court does not determine whether the ALJ reduced the discipline because defendants lacked good cause for termination or for some other reason.

In summary, the court construes plaintiff's complaint as advancing a § 1983 claim for retaliation in violation of plaintiff's First Amendment rights and the court denies defendant's motion to dismiss as to this claim.

C. § 1983 Claim Predicated on the Family Medical Leave Act

Plaintiff's section 1983 substantive due process claim also argues that defendants violated plaintiff's right to due process by depriving her of benefits owed under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. For the reasons stated above, the court sets aside the substantive due process portion of this claim, and interprets plaintiff's complaint as alleging a section 1983 claim predicated on violation of the FMLA directly. For the reasons thoroughly explained in Hayduk v. City of Johnstown, 580 F.Supp.2d 429, 480-86 (M.D.Pa.2008), the court concludes that section 1983 may not be used to vindicate the rights provided by the FMLA, although the court concedes that it is not aware of any binding authority directly addressing this issue. The court summarizes Hayduk's analysis here.

In general, courts presume that section 1983 provides a mechanism for enforcement of all federal statutory rights. Me. v. Thiboutot, 448 U.S. 1, 5, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (rejecting contention that § 1983 applies only to civil rights statutes and constitutional rights). "[T]he defendant may defeat this presumption by demonstrating that Congress did not intend" that § 1983 furnish a remedy for the rights created by the statute. Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Such an intent may be inferred where the statute at issue provides "a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983." Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997).

The FMLA provides its own remedial scheme, including a specific private right of action. 29 U.S.C. § 2617.7 The inclusion of an "express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983." Rancho Palos Verdes, 544 U.S. at 121, 125 S.Ct. 1453. Although the Court has expressly declined to state whether the presence of such a specific remedy is conclusive, as a practical matter, "`the existence of a more restrictive private remedy . . . has been the dividing line' between the cases in which the Supreme Court has held that § 1983 applied and those in which it has held that it did not." Hayduk, 580 F.Supp.2d at 483 (quoting Rancho Palos Verdes, 544 U.S. at 121, 125 S.Ct. 1453). The remedy provided by the FMLA is plainly more restrictive than the one provided by § 1983. Section 1983, unlike the FMLA, allows recovery of nominal, punitive, and non-economic damages. Id. at 483-84. The FMLA, unlike § 1983, requires a would-be plaintiff to seek a right to sue letter from the Equal Employment Opportunity Commission before filing suit and a plaintiff may not sue if the Secretary of Labor decides to pursue the action. 29 U.S.C. § 2617(a)(4). In light of these differences, the court concludes that the FMLA supplants, rather than supplements, the remedial scheme provided by § 1983.

If the court were to construe plaintiff's complaint as alleging a claim directly under the cause of action provided by the FMLA, such a claim would fail because plaintiff has not alleged that she received a right to sue letter from the EEOC prior to filing suit.

If the court were to take plaintiff's complaint at face value, as alleging a violation of the FMLA so severe as to violate the constitutional guarantee of substantive due process, the court would still conclude that section 1983 could not be used to bring such a claim. Wrapping a FMLA claim in due process does not circumvent the intent analysis provided above, and the FMLA process would apparently provide an adequate remedy for such a constitutional violation (assuming that the constitutional claim was viable at all).

Accordingly, the court grants defendants' motion to dismiss insofar as it challenges plaintiffs' theories of liability predicated on violation of the FMLA.

D. § 1983 Claim predicated on the Labor Management Relations Act and the National Labor Relations Act

The SAC alleges that defendants deprived plaintiff of the "right to active participation in labor union activities," without those activities. Plaintiff's opposition, but not complaint, explains that her theory of liability is that County's refusal to re-hire plaintiff either deprived her of rights granted under a collective bargaining agreement—namely, the benefit of the procedures used before the state ALJ—or was in retaliation for plaintiff's exercise of that right. Plaintiff contents that this violated the National Labor Relations Act ("NLRA") and the Labor Management Relations Act ("LMRA"). Although the connection between this argument and the quoted allegation is tenuous, the court accepts the opposition.

Defendants correctly note that the NLRA does not apply to county employees. 29 U.S.C. § 152(2) ("The term `employer'. . . shall not include . . . any State or political subdivision thereof."). The provision of the Labor Management Relations Act cited by plaintiff, 29 U.S.C. § 185, pertains to suits by and against labor unions, and is therefore inapplicable here. Accordingly, plaintiff's allegations regarding union rights do not provide support for a cognizable claim.

E. § 1983 Claim Predicated on Equal Protection and Religious Exercise

As noted above, plaintiff alleges that defendants deprived her of her rights to equal protection and freedom of religion as guaranteed by the United States Constitution. SAC ¶ 14. Both of these allegations pertain to the underlying allegation that plaintiff "was repeatedly told [that] there were too many Christians in Children's Protective Services, and was subjected to criticism because she and many of her staff were Christians." SAC Ex. 3 at 28.

Claims for employment discrimination premised on religious animus are ordinarily brought under Title VII. See 42 U.S.C. § 2000e-2(a)(1). Like the FMLA, Title VII requires would-be plaintiffs to secure a right to sue letter as a prerequisite to suit. 42 U.S.C. § 2000e-5(f). Unlike the FMLA, Title VII's enforcement scheme does not displace § 1983 so long as the claim is not based on violation of Title VII itself. See, e.g., Roberts v. College of Desert, 870 F.2d 1411, 1415 (9th Cir.1988) ("Title VII does not preempt an action under section 1983 for a violation of the fourteenth amendment.").

Plaintiff's allegations regarding religion and equal protection nonetheless fail to support a claim. The only conduct for which plaintiff alleges a religious motive is "criticism." Although verbal conduct may in some cases create a hostile work environment actionable under Title VII, plaintiff has not brought a Title VII claim. Plaintiff provides no authority supporting the contention that such criticism offends underlying constitutional rights.

F. § 1983 Procedural Due Process Claim

Plaintiff's procedural due process claim is based solely on the County's refusal to re-hire plaintiff after the ALJ held that plaintiff should not have been terminated.

The court agrees that the County's alleged refusal to comply with a lawful order is troubling, and that there may be situations in which such a refusal violates either substantive or procedural due process. In this claim plaintiff specifically invokes procedural due process. Plaintiff has not addressed, however, what process is available or what process should have been provided. Plaintiff's sole assertion on this issue is that the refusal to re-hire plaintiff is the equivalent to a decision to terminate plaintiff in the first instance. SAC ¶ 21, Opp'n at 8. The court interprets this as arguing that plaintiff's alleged protected property interest in her job entitled her to pre-termination notice and a hearing. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (holding that for the particular public employee at issue, informal pre-termination hearing coupled with formal post-termination hearing satisfied due process). Plaintiff has provided no argument as to why refusal to comply with the personnel board order is the equivalent of such a termination. Nor has plaintiff alleged that other process, such as a state proceeding to enforce the personnel board order, is unavailable.

Absent further detail, the court cannot conclude that plaintiff has alleged facts from which the court may reasonably infer a due process violation. Accordingly, this claim is dismissed with leave to amend.

G. §§ 1985 and 1986 Claims

Plaintiff's third claim invokes 42 U.S.C. § 1985. Plaintiff presumably intends to rely on that portion of § 1985(3) that prohibits conspiracies "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws." Plaintiff's fourth claim invokes § 1986, which provides a cause of action for the failure to prevent the acts prohibited by § 1985.

Plaintiff's opposition addresses the § 1985 claim only in passing, and makes no mention of the § 1986 claim. Nonetheless, the court will assume that plaintiff has not intended to abandon these claims.

Plaintiff alleges that she is Christian, that Christians are a protected class within the meaning of this statute, and that defendants conspired to deprive Christians of their equal rights. SAC ¶ 25. Without reaching the issue of whether section 1985(3) extends to conspiracies based upon religious animus,8 the court concludes that these claims fail for the reasons discussed in part III(E) above. Accordingly, the court dismisses plaintiff's third and fourth claims.

H. Qualified Immunity and Monell Liability

Above, the court has construed the complaint as a § 1983 claim for deprivation of plaintiff's First Amendment rights. Section 1983 claims against government officials may be limited by the doctrine of qualified immunity. Defendants raise this doctrine only in regard to due process, arguing that a reasonable officer would not have believed that plaintiff had a property interest in her job that was protected by the Due Process Clause. Because any ambiguity as to whether there was a protected property interest is irrelevant as to the surviving claim. Defendants may renew their qualified immunity argument in a future motion.

The county, unlike the individual officers, invoke qualified immunity. The county's liability under § 1983 is nonetheless limited as explained by Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because the county has not raised this issue, the court does not address it here.

I. Intentional Infliction of Emotional Distress

The final claim for which plaintiff opposes dismissal is the claim for intentional infliction of emotional distress. Under California Law, the elements of a claim for intentional infliction of emotional distress are "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Davidson v. City of Westminster, 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894 (1982); see also Christensen v. Superior Court, 54 Cal.3d 868, 903, 2 Cal.Rptr.2d 79, 820 P.2d 181 (1991).

Plaintiff's complaint alleges that defendants intentionally inflicted emotional distress by "concocting false and unfounded charges and allegations against plaintiff and using those false charges and allegations to take plaintiff's job" and by "making false and damaging statements about plaintiff." SAC ¶ 57.

The court dismisses this claim on two grounds. First, the claim appears to be barred by the exclusivity of the workers' compensation system. The California Supreme Court recently addressed a similar claim as follows:

Miklosy v. Regents of University of California, 44 Cal.4th 876, 902, 80 Cal.Rptr.3d 690, 188 P.3d 629 (2008); see also Pichon v. Pac. Gas & Elec. Co., 212 Cal.App.3d 488, 496, 260 Cal.Rptr. 677 (1989) ("emotional distress injuries caused by termination of employment are compensable under the Workers' Compensation Act and, therefore, . . . the exclusive remedy for all of appellant's claims for injuries to his psyche, regardless of the title of the cause of action, was workers' compensation."). Miklosy was careful to distinguish claims for intentional infliction of emotional distress from, for example, claims that an employee was terminated for whistle-blowing. 44 Cal.4th at 902, 80 Cal.Rptr.3d 690, 188 P.3d 629. Thus, although the worker's compensation exclusivity rule may not bar other potential state law claims and does not limit the federal claims, plaintiff's claim for intentional infliction of emotional distress is barred.

Second, the court dismisses this claim because plaintiffs' counsel conceded at oral argument that plaintiff had failed to present her claim for intentional infliction of emotional distress in the government tort claim forms filed prior to initiation of this suit.

For these reasons, this claim is dismissed with prejudice.

IV. Conclusion

Defendants' motion to dismiss is GRANTED IN PART. Plaintiffs' state law claims (her fifth through ninth causes of action) are DISMISSED WITH PREJUDICE. Plaintiffs' federal claims (her first through fourth claims) are DISMISSED WITHOUT PREJUDICE, except insofar as plaintiff alleges that defendants violated her first amendment rights by terminating her in retaliation for speaking about misuse of public funds. As to this last theory of liability, defendants' motion to dismiss is DENIED.

Plaintiff is granted leave to file an amended complaint, consistent with the above, within twenty-one days of the date of this order.

IT IS SO ORDERED.