PHYLLIS J. HAMILTON, District Judge.
Defendants San Francisco Community College District ("the District" or "CCSF") and Chancellor Mark William Rocha's motion to dismiss came on for hearing before this court on January 15, 2020. Plaintiff Dr. Shalamon Duke appeared through his counsel, Don Lancaster. Defendants appeared through their counsel, Damon Thurston. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows, for the reasons stated at the hearing and for the following reasons.
On August 26, 2019, plaintiff filed a complaint against defendants CCSF, Rocha, and Does 1-10 in the Superior Court of the State of California, County of San Francisco. Compl., Dkt. 1, Ex. A. That complaint asserted 14 causes of action. On October 3, 2019, defendants removed this action to this court. Dkt. 1. On October 31, 2019, Duke filed a Motion to Remand. Dkt. 15. On November 14, 2019, defendants filed an opposition to that motion. Dkt. 18. On November 22, 2019, plaintiff filed a First Amended Complaint ("FAC," Dkt. 19), asserting the same 14 causes of action: (1) 42 U.S.C. § 1983 ("§ 1983") (alleged against CCSF, Rocha, and Does); (2) 29 U.S.C. § 206 ("Equal Pay Act") (alleged against CCSF and Does); (3) 42 U.S.C. § 1981 ("§ 1981") (alleged against CCSF, Rocha, and Does); (4) 29 U.S.C. §§ 621-34 ("ADEA") (alleged against CCSF and Does); (5) 42 U.S.C. § 2000 ("Title VII") (alleged against CCSF, Rocha, and Does); (6) 29 U.S.C. § 2615 ("FMLA") (alleged against CCSF, Rocha, and Does); (7) Cal. Govt. Code § 12940(a) ("FEHA Discrimination") (alleged against CCSF, Rocha, and Does); (8) Cal. Govt. Code § 12940(h) ("FEHA Retaliation") (alleged against CCSF, Rocha, and Does); (9) Cal. Govt. Code § 12940(h) ("FEHA Retaliation") (alleged against CCSF, Rocha, and Does); (10) breach of contract (alleged against CCSF and Does); (11) negligent infliction of emotional distress ("NIED") (alleged against CCSF, Rocha, and Does); (12) Cal. Govt. Code § 54957 (alleged against CCSF and Does); (13) Cal. Civ. Code § 51 ("Unruh Act") (alleged against CCSF and Does); and (14) intentional infliction of emotional distress ("IIED") (alleged against CCSF, Rocha, and Does).
Duke is an African American educator who served as Associate Vice Chancellor of Student Development at CCSF beginning in July 2018.
On December 6, 2018, a civil complaint was filed against Duke alleging that he sexually harassed someone while working at a former employer—a school within Los Angeles Community College District.
On December 11, 2018, CCSF sent a notice to Duke that he was formally placed on Administrative Leave, and on the same date Rocha sent an email to the CCSF community stating that Duke had been "separated" from CCSF and would "not return to his duties."
At plaintiff's request, a pre-disciplinary "Skelly hearing" was held on January 9, 2019.
Prior to CCSF's termination of Duke, he had requested leave for the birth of his daughter, which had been granted.
A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint.
While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted.
"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."
Review is generally limited to the contents of the complaint, although the court can also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading."
First, defendants argue that this court lacks subject-matter jurisdiction over the action because plaintiff was required to file a writ of mandamus, rather than bring this action. Second, defendants move to dismiss each of plaintiff's fourteen causes of action for failure to state a claim upon which relief can be granted. Third, defendants move to strike portions of the FAC.
Defendants argue that Duke was required to file a writ of mandamus
Defendants present this as a jurisdictional issue, but the underlying preclusive mechanism that their argument invokes would be that the state actor's decision "trigger[s] res judicata and collateral estoppel effect"—not a challenge to this court's jurisdiction over the action.
Turning to that inquiry, the court beings by noting that because plaintiff's "claim is governed by the FEHA, []he was not obligated to exhaust any available `administrative remedy,' and could have proceeded directly with a claim to the Department of Fair Employment and Housing, and then to the courts."
This either/or principle is "founded on the rationale that a plaintiff is entitled to only one opportunity to try her claim. If she takes that opportunity in the context of an administrative process, she cannot merely ignore an adverse result and ask for a `do-over' in court."
The court therefore inquires whether plaintiff's termination must have been challenged with an administrative mandate, rather than though this action. "[A]dministrative mandate is available only if the decision resulted from a proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.'"
The first prong raises the question as to what constitutes a "hearing." A satisfactory hearing must be "intended to afford [plaintiff] an opportunity to prove her case," rather than merely as "an opportunity for the parties to discuss information and contentions relative to the grievance."
Here, there is no indication that a hearing was required to be given by law. The District's own statements confirm that the pre-termination Skelly hearing was "a matter of courtesy and not of legal right" (FAC, Ex. 17), and they explicitly noted that it was "not clear whether" the Board of Directors meeting at which the decision to terminate plaintiff would be a "hearing" at all (FAC, Ex. 16). Accordingly, plaintiff was not required to seek an administrative mandate, and defendants' argument—whether framed in terms of this court's jurisdiction or plaintiff's duty to exhaust administrative remedies—fails.
Plaintiff appears to assert two theories of liability under 42 U.S.C. § 1983. First, he argues that defendants violated the Equal Protection Clause of the Constitution. Second, he argues that defendants violated the Due Process Clause of the Constitution.
With respect to the alleged equal protection violation, although plaintiff uses the words "Equal Protection" occasionally, his briefing and FAC are entirely bereft of any content explaining or supporting such a theory. Instead, the discussion of plaintiff's § 1983 claim in the FAC and briefing all concern the Due Process Clause, as does plaintiff's cited authority. Accordingly, plaintiff's first cause of action, to the extent it is based on a theory that defendants violated the Equal Protection Clause of the Constitution, is DISMISSED AS TO BOTH DEFENDANTS WITH LEAVE TO AMEND.
Plaintiff articulates his allegations and arguments regarding due process violations more clearly. Plaintiff argues that both defendants denied him due process by terminating him without an investigation and for reasons not permitted under California Education Code § 87732. Defendants argue that plaintiff cannot argue that any constitutionally-protected right was violated, given that the FAC confirms plaintiff was provided a notice of intent to dismiss, a Skelly hearing, and a notice of dismissal.
"To establish a § 1983 claim, a plaintiff must show that an individual acting under the color of state law deprived him of a right, privilege, or immunity protected by the United States Constitution or federal law. To establish a due process violation, a plaintiff must show that he has a protected property interest under the Due Process Clause and that he was deprived of the property without receiving the process that he was constitutionally due."
A plaintiff can assert a claim under § 1983 for a due process violation if he was denied "property interests in [his] employment without due process of law."
Regarding the first step, plaintiff "must show that [he] had a protected property interest in [his] job[]. We look to state law to determine whether a protected property interest exists."
Here, plaintiff alleges that his employment was governed by California Education Code § 87732. Defendants do not dispute this; rather, they argue that plaintiff was terminated in accordance with that section. That section provides that "No regular employee or academic employee shall be dismissed except for one or more of the following causes:" and provides an enumerated list of causes.
Regarding the second step, the court "must determine whether, in being deprived of this interest, [plaintiff] received all the process that was due."
"[T]he pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee."
Plaintiff argues that he was not afforded due process prior to being terminated. He alleges that he was placed on administrative leave on December 8, 2018. FAC ¶¶ 20-21. On December 12, he was given notice of a December 13 board meeting concerning his employment.
The allegations in plaintiff's pleading make clear that the Skelly hearing satisfied defendants' pre-termination obligations under the Due Process Clause. Plaintiff was given written notice of the complaints against him, and he was given the opportunity to attend (and did attend) a meeting during which he was permitted to respond to those complaints.
Given that plaintiff's due process claim challenges the process he was afforded prior to his termination, that claim must be DISMISSED for the reasons explained above. Rather than alleging a due process violation, plaintiff's pleadings have instead alleged facts demonstrating that the process he was afforded prior to his termination satisfied the Due Process Clause's requirements. Accordingly, his § 1983 claim based on the Due Process Clause is DISMISSED AS TO BOTH DEFENDANTS WITH PREJUDICE.
Duke alleges that defendants violated the Equal Pay Act because the District allegedly paid one other employee (a "Latina counterpart")—holding a position with similar responsibilities that was "comparable in scope of work"—more than plaintiff, despite his having "more direct experience."
Defendants argue that plaintiff's complaint compares himself only to a single other employee, which as a matter of law fails to state a claim. Plaintiff responds that alleging a single comparison employee is sufficient to state a claim.
"To make out a case under the Equal Pay Act, a plaintiff must prove that an employer is paying different wages to employees of the opposite sex for equal work. The jobs held by employees of opposite sexes need not be identical, but they must be `substantially equal.'"
Thus, contrary to defendants' position, comparing oneself to a single other employee is appropriate when there is only a single comparable employee of the opposite gender. Although the FAC does not include such allegations, at the hearing plaintiff's counsel argued that the District in fact employs only a single female employee who performs substantially equal work and is similarly situated to plaintiff. Given plaintiff's counsel's representation at the hearing, plaintiff's Equal Pay Act claim is DISMISSED WITH LEAVE TO AMEND, for the limited purpose of alleging (if possible consistent with Rule 11), that the District employs only a single female employee who performs substantially equal work and is similarly situated with respect to other factors that affect the wage scale.
Plaintiff argues that he is entitled to bring a complaint under 42 U.S.C. § 1981 based on defendants breaching his employment contract, because his employment was formed by a contract pursuant to California Education Code Sections 72411 and 87470. He argues that a contract, in combination with those statutes, guaranteed him employment until June 30, 2020, unless he was terminated for reasons permitted by the statute. By terminating him for reasons not specified in California Education Code § 87732, plaintiff alleges that defendants breached a contract.
As discussed above with respect to plaintiff's due process claim, plaintiff had a property interest in his employment that was created by statute—not a contractual right. California law is clear on this point.
Plaintiff claims that defendants terminated his employment improperly, not that they breached any provision requiring back-pay or other remuneration for work already performed.
The Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ("ADEA"), provides:
29 U.S.C. § 623.
"The ADEA prohibits an employer from, among other things, `discharging' an employee who is over forty years of age `because of' the employee's age."
"[A]n age difference of less than ten years, without more evidence, is insufficient to make a prima facie case of age discrimination. . . . [A]n age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. . . . A plaintiff who is not ten years or more older than his or her replacements can rebut the presumption by producing additional evidence to show that the employer considered his or her age to be significant. The plaintiff can produce either direct or circumstantial evidence to show that the employer considered age to be a significant factor."
Defendants argue that plaintiff failed to adequately allege that defendants replaced plaintiff's position with someone younger, much less someone 10 years younger. Plaintiff argues that it is defendants' burden to show that the person who replaced Duke was not 10 years younger, and that his burden at the pleading stage is merely to "give notice of his claims."
Plaintiff's FAC alleges that the District "discharged Dr. Duke and replaced him with a younger person to assume his responsibility. Dr. Duke is informed, believes and thereon alleges that the individual who has assumed his duties is at least 10 years younger than him." FAC ¶ 77. Plaintiff makes no other allegation indicating that defendants considered his age to be significant. Plaintiff's claim therefore relies entirely on a presumption of discrimination based on the age of his replacement. Yet, the allegations in plaintiff's FAC regarding his replacement are too conclusory to adequately allege that presumption. Accordingly, plaintiff's fourth claim is DISMISSED WITH LEAVE TO AMEND, in order to allege facts supporting the allegation regarding plaintiff's replacement's age.
Duke alleges that he was discriminated against due to his race in violation of Title VII and FEHA.
To state a claim for race discrimination, plaintiff must establish four prima facie elements: "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive."
Defendants argue that these claims fail because the complaint alleges no facts supporting any plausible nexus between Duke's termination and his sex, gender, color, or race.
Here, there are no plausible, well-pled allegations that defendants acted because of plaintiff's sex, gender, color, or race—other than bare conclusory allegations from plaintiff. Plaintiff cites only to FAC ¶¶ 86-87 & 103-05, which are bare, conclusory allegations. The allegations' conclusory nature is even more pronounced in light of the fact that the parties agree on certain core facts surrounding defendants' articulated justification for terminating plaintiff—that he failed to disclose an investigation of misconduct with students undertaken by his previous employer prior to December 7, 2018.
Regarding Roca, plaintiff's claim is DISMISSED WITH PREJUDICE. "In
"To make out a prima facie case of FMLA interference, an employee must establish that (1) he was eligible for the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled."
Defendants argue that plaintiff was not eligible for FMLA leave because he had not been employed for 12 months and for at least 1,250 hours of service during the previous 12-month period. Plaintiff argues that defendants are liable under the statute— regardless of his eligibility for FMLA's protections—because the District approved his request for leave.
Regarding the first element, "[t]he FMLA entitles `an eligible employee' to take family or medical leave for several enumerated reasons, including to care for a close relative. The term `eligible employee' means an employee who has been employed (i) for at least 12 months by the employer with respect to whom leave is requested. That is, an employee is not eligible for family or medical leave until he or she has worked for an employer for 12 months."
Duke alleges he was "appointed" by the District in July 2018 and was terminated in January 2019. FAC ¶¶ 14, 29. Because he alleges that he was not employed for at least 12 months, plaintiff was not eligible for FMLA leave, and his claim must fail. Accordingly, plaintiff's sixth claim is DISMISSED AS TO BOTH DEFENDANTS WITH PREJUDICE.
"[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a `protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action."
Plaintiff argues that he complained about his pay and asked for an increase commensurate with comparable female employees. He argues that asking for pay equal to his female counterparts is a protected activity, and that he was terminated after doing so. Defendants argue that the temporal proximity between Duke's request for a raise and his firing is not sufficient to allege a causal link where, as here, there is an alternate explanation—he was the subject of a sensitive complaint at a community college where he used to work, and he failed to disclose that matter to CCSF until it became a formal lawsuit.
Evidence that plaintiff's termination followed soon after his alleged complaint about the legality of his pay is sufficient to allege a causal link supporting his intentional retaliation claim.
As such, defendant's motion to dismiss plaintiff's eighth cause of action as alleged against CCSF is DENIED.
The claim as alleged against Rocha is DISMISSED WITH PREJUDICE. "[T]he same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable."
For this claim, Duke alleges an additional theory of liability based on the same substantive law as the eighth cause of action. He asserts that he engaged in the protected activity of asserting his right to due process in being terminated. FAC ¶ 117.
Plaintiff fails to adequately plead the first and fourth elements required to establish a prima facie case of retaliation under the FEHA—that plaintiff show he or she engaged in a `protected activity,' and that that plaintiff show a causal link between the protected activity and the employer's action. Plaintiff's FAC fails to provide any factual allegations that he "asserted his right to obtain due process in being terminated" prior to his termination, such that the protected activity could have plausibly led to his termination. No such allegations are pled under the cause of action.
Because the court is not convinced that amendment would necessarily be futile, the ninth cause of action as alleged against CCSF is DISMISSED WITH LEAVE TO AMEND.
The claim as alleged against Rocha is DISMISSED WITH PREJUDICE. "[T]he same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable."
"In California public employment is held not by contract, but by statute. . . . [O]ur Supreme Court has made it clear that civil service employees cannot state a cause of action for breach of contract or breach of the implied covenant of good faith and fair dealing. This same general principle of law applies to civil service and noncivil service public employees alike."
Although Duke's employment was held by statute—not contract—he now asserts a cause of action for breach of contract because defendants terminated his employment for reasons not permitted by statute.
For the foregoing reasons, plaintiff's tenth claim is DISMISSED WITH PREJUDICE.
The eleventh and fourteenths claims allege that defendants negligently and intentionally, respectively, caused plaintiff severe emotional distress by terminating him.
Defendants raise three primary arguments.
First, they argue that because the alleged conduct occurred at the worksite and in the "normal course of the employer-employee relationship . . . workers' compensation is plaintiffs' exclusive remedy for any injury that may have resulted."
In California, "[s]o long as the basic conditions of compensation are otherwise satisfied, and the employer's conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship, an employee's emotional distress injuries are subsumed under the exclusive remedy provisions of workers' compensation."
However, the doctrine "does not prohibit all emotional distress causes of action against an employer, but only those based on conduct that is a normal risk of the employment relationship."
Second, defendants argue that the Tort Claims Act abolished all common law or judicially declared forms of liability for public entities, except for such liability that arises from statutory or constitutional authority.
However, Duke has pled violations of duties contained in state statutes, including California Education Code § 87732. That statute allegedly sets out a duty specifying that CCSF can only fire plaintiff based on an enumerated list of reasons. FAC ¶¶ 133, 151.
Third, defendants argue that the NIED cause of action does not state a claim upon which relief can be granted because in California, "there is no independent tort of negligent infliction of emotional distress[.]"
Accordingly, defendants' motion to dismiss plaintiff's eleventh and fourteenth causes of action as to CCSF is DENIED.
With respect to plaintiff's eleventh and fourteenth causes of action as alleged against Rocha, "except where a statutory exception applies . . . . an employee or former employee cannot sue individual employees based on their conduct, including acts or words, relating to personnel actions."
Accordingly, defendants' motion to dismiss plaintiff's eleventh and fourteenth causes of action as to Rocha is GRANTED and the claims are DISMISSED WITH PREJUDICE.
California Government Code § 54957(b)(2) provides: "As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void."
Plaintiff alleges that the District failed to give notice as required under the statute because the only notice delivered at least 24 hours before the session was emailed, rather than delivered personally or by physical mail.
Contrary to defendants' argument, the statute does not appear to require any demonstration of harm or prejudice on its face. Rather, its plain language appears to provide for a non-discretionary remedy—voiding any action taken in an improperly-noticed, closed session. Given the arguments presented to the court on this motion, defendants' motion to dismiss plaintiff's twelfth claim is DENIED.
However, the court notes that this claim was not thoroughly briefed on this motion. The parties are encouraged to revisit this claim with more thorough briefing in the future, including with respect to whether the statute's language requiring notice "by mail" requires physical mail rather than electronic mail; whether the complained-of session was an "open" or "closed" session, and whether the remedy plaintiff seeks applies to an "open" session at all; and whether the statutory remedy requires a demonstration of harm or prejudice.
Plaintiff has agreed to dismiss this claim as to both defendants. It is therefore DISMISSED WITH PREJUDICE as to both defendants.
As an initial matter, plaintiff has clarified that he is only seeking punitive damages against Rocha individually, not the District as a public entity. Accordingly, plaintiff's requests for punitive damages based on claims asserted against the District are STRICKEN from the complaint.
Because there are no claims pending against Rocha following this order, defendants' motion with respect to Rocha is moot.
Defendants seek to strike language from FAC ¶ 13 alleging that the District is strictly liable for act of its agents. Regardless of the allegation's merits as a matter of legal principle, the court declines to strike that paragraph from the complaint.
Defendants ask the court to take judicial notice of a complaint filed in the Superior Court of the State of California for the County of Los Angeles. Plaintiff does not oppose the request. Defendants do not ask the court to take notice of the truth of any facts contained in that document—merely its existence. RJN, Dkt. 21-1. The request is GRANTED.
For the foregoing reasons, plaintiff's first cause of action based on a theory that defendants violated the Equal Protection Clause of the Constitution is DISMISSED AS TO BOTH DEFENDANTS WITH LEAVE TO AMEND; plaintiff's first cause of action based on a theory that defendants violated the Due Process Clause is DISMISSED AS TO BOTH DEFENDANTS WITH PREJUDICE; plaintiff's second cause of action under the Equal Pay Act is DISMISSED WITH LEAVE TO AMEND; plaintiff's third cause of action under 42 U.S.C. § 1981 is DISMISSED AS TO BOTH DEFENDANTS WITH PREJUDICE; plaintiff's fourth cause of action under the Age Discrimination in Employment Act is DISMISSED WITH LEAVE TO AMEND; plaintiff's fifth and seventh causes of action under FEHA and Title VII as alleged CCSF are DISMISSED WITH LEAVE TO AMEND, and as alleged against Rocha are DISMISSED WITH PREJUDICE; plaintiff's sixth cause of action under the FMLA is DISMISSED AS TO BOTH DEFENDANTS WITH PREJUDICE; defendants' motion to dismiss plaintiff's eighth cause of action under FEHA as alleged CCSF is DENIED, and the claim as alleged against Rocha is DISMISSED WITH PREJUDICE; plaintiff's ninth cause of action under FEHA as alleged against CCSF is DISMISSED WITH LEAVE TO AMEND, and as alleged against Rocha is DISMISSED WITH PREJUDICE; plaintiff's tenth cause of action for breach of contract is DISMISSED WITH PREJUDICE; defendants' motion to dismiss plaintiff's eleventh and fourteenth causes of action for NIED and IIED as alleged CCSF is DENIED, and the claims as alleged against Rocha are DISMISSED WITH PREJUDICE; defendants' motion to dismiss plaintiff's twelfth cause of action under Cal. Govt. Code § 54957 is DENIED; plaintiff's thirteenth cause of action under the Unruh Act is DISMISSED WITH PREJUDICE; and defendants' motion to strike is GRANTED IN PART AND DENIED IN PART, in accordance with this order.
Plaintiff shall file any amended complaint within 21 days of the date of this order. No new parties or causes of action may be pleaded without leave of court or the agreement of all defendants.
