Heyer v. Governing Board of the Mt. Diablo Unified School District et al, No. 3:2010cv04525 - Document 24 (N.D. Cal. 2011)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT; GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO STRIKE; VACATING HEARING; ORDER TO SHOW CAUSE. Defendants' motion to dismiss [ 11] is granted as to the First, Second, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action. Defendants' motion to strike 12 granted as to punitive damages. Plaintiff ordered to show cause by March 4, 2011. Signed by Judge Maxine M. Chesney. (mmclc2, COURT STAFF) (Filed on 2/22/2011)
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Heyer v. Governing Board of the Mt. Diablo Unified School District et al Doc. 24 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 For the Northern District of California United States District Court 10 11 RICHARD HEYER Plaintiff, 12 13 14 15 No. C-10-4525 MMC v. GOVERNING BOARD OF THE MOUNT DIABLO UNIFIED SCHOOL DISTRICT; et al., Defendants. 16 / ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE; VACATING HEARING; ORDER TO SHOW CAUSE 17 18 Before the Court are defendants the Governing Board of the Mount Diablo School 19 District (“District”), Alan Young (“Young”), and John McMorris’s (“Morris”) (collectively, 20 “defendants”) motion to dismiss plaintiff’s First Amended Complaint (“FAC”) and alternative 21 motion to strike portions thereof, both filed January 14, 2011. Plaintiff Richard Heyer 22 (“Heyer”) has filed opposition, to which defendants have replied. Having read and 23 considered the papers filed in support of and in opposition to the motions, the Court deems 24 the matter suitable for decision on the parties’ respective submissions, VACATES the 25 hearing on said motions scheduled for February 25, 2011, and rules as follows. 26 1. Defendants move to dismiss Heyer’s state law claims against defendants on 27 the ground such claims are barred by the Eleventh Amendment. See Pennhurst Stat Sch. 28 & Hosp. v. Halderman, 465 U.S. 89, 101, 104-06 (1984) (holding Eleventh Amendment Dockets.Justia.com 1 bars claims asserting “state official has violated state law” (emphasis in original)). Heyer 2 states he “has no opposition to [d]efendants[‘] claim that they are immune from suit for 3 state law violations in federal court.” (See Opp. at 16:16-17.) Accordingly, the Court will 4 dismiss the FAC’s Third, Sixth, Seventh, Eighth, and Ninth causes of action, asserting 5 claims under California’s Constitution and Fair Employment and Housing Act. 6 2. Defendants move to dismiss, as against Young and McMorris, Heyer’s 7 harassment claim, brought under Title VII, 42 U.S.C. § 2000e-2, on the ground said 8 defendants cannot be held liable as supervisors. Heyer states he “has no opposition to 9 claims that individual defendants, Alan Young and John McMorris may not be liable for 10 harassment pursuant to” Title VII. (See Opp. 17:3-6.) Accordingly, the Court will dismiss 11 the FAC’s Fifth Cause of Action, asserting harassment under Title VII, as against Young 12 and McMorris. 13 3. Defendants move to dismiss Heyer’s remaining causes of action for failure to 14 state a claim for which relief can be granted. Heyer opposes defendants’ motion to 15 dismiss, asserting the FAC alleges sufficient facts to state a claim for (1) age discrimination 16 in violation of the ADEA, 29 U.S.C. § 623; (2) race and color discrimination in violation of 17 Title VII, 42 U.S.C. § 2000e-2(a); (3) retaliation in violation of Title VII, 42 U.S.C. § 2000e-3; 18 and (4) harassment in violation of both Title VII, 42 U.S.C. § 2000e-2(a) and the ADEA, 19 which claims are alleged in the FAC’s First, Second, Fourth, and Fifth Causes of Action, 20 respectively. 21 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 22 plain statement of the claim showing the pleader is entitled to relief.’” Ashcroft v. Iqbal, 129 23 S. Ct. 1937, 1949 (2009) (quoting Rule 8(a)(2)). “[T]he pleading standard Rule 8 24 announces does not require detailed factual allegations, but it demands more than an 25 unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal quotation and 26 citation omitted). “A pleading that offers labels and conclusions or a formulaic recitation of 27 the elements of a cause of action will not do.” Id. (internal quotation and citation omitted). 28 “Nor does a complaint suffice if it tenders naked assertions devoid of further factual 2 1 2 enhancement.” Id. (internal quotation, alteration, and citation omitted). Here, Heyer alleges the following facts: Heyer is a sixty-year-old Caucasian male 3 (see FAC ¶ 1), with “a Bachelor of Arts Degree from California State University at 4 Sacramento, California and a Master of Arts Degree in Secondary Education from the 5 University of San Francisco” (see FAC ¶ 7); Heyer has been “continuously employed as a 6 certified educator or administrator in the East Bay Public Schools since 1987, and has 7 always performed all of his assigned and related duties in an excellent manner” (see FAC 8 ¶ 8); and Heyer was employed for approximately twelve years as a “Vice-Principal at 9 Northgate High School, Walnut Creek, California in the Mount Diablo Unified School 10 District, until on or about June 30, 2010," when he was removed from that position and 11 reassigned to a classroom teacher position (see FAC ¶ 9). 12 Notably missing from Heyer’s factual allegations, however, are any facts to support 13 his claims for discrimination and harassment. Rather, Heyer asserts, in conclusory fashion, 14 that his demotion was “unlawful[]” (see FAC ¶ 9); that he has been subjected to “egregious, 15 unlawful, discriminatory employment practices,” including “[u]nwarranted, unrelenting over 16 and close scrutiny,” “[c]ontinuous harassment,” “[c]ontinuous undermining of ability to 17 perform duties,” “[u]nwarranted criticism,” “[f]alse negative performance evaluation,” and 18 “[f]alse accusation of unprofessional conduct” (see FAC ¶ 11); that the alleged actions 19 “have been taken against [Heyer] on account of his age” (see FAC ¶ 15); that Heyer “was 20 denied transfer or reassignment as Vice-Principal because of his race and color” (see FAC 21 ¶ 23); and that Heyer has been subjected to harassment “on account of his race, and color 22 and age” (see FAC ¶ 46). The FAC contains insufficient facts “to raise a right of relief 23 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).1 24 Accordingly, the Court will dismiss the FAC’s First, Second, and Fifth Causes of Action for 25 1 26 27 28 In opposition to the motion to dismiss, Heyer submits a declaration in which he makes various additional factual allegations. Heyer’s declaration is not properly before the Court, however, as, “[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss.” See Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (emphasis in original). 3 1 failure to state a claim upon which relief can be granted. 2 In contrast, and contrary to defendants’ argument, Heyer alleges sufficient facts to 3 plead a retaliation claim. In particular, Heyer alleges he engaged in protected activity, his 4 filing with the United States Equal Employment Opportunity Commission (“EEOC”) an 5 “administrative charge of discrimination” on June 4, 2010 (see FAC ¶ 43),2 that within the 6 month he suffered an adverse employment action, his demotion, on June 30, 2010 7 (see FAC ¶ 9), and that he was demoted because, inter alia, he filed the above-referenced 8 charges (see FAC ¶ 39);3 see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 9 (9th Cir. 2002) (noting “causation can be inferred from timing alone where an adverse 10 11 employment action follows on the heels of protected activity”). Defendants next move to strike the FAC’s prayer for relief to the extent Heyer seeks 12 punitive damages and to strike allegations supporting a “common law tort of intentional 13 infliction of emotional distress.” (See Mot. to Dismiss at 5.) Heyer concedes punitive 14 damages are not recoverable against a public entity but argues, correctly, that damages for 15 emotional distress are recoverable on his above-referenced federal claims, including his 16 Fourth Cause of Action. See 42 U.S.C. § 1981a(b)(3). 17 Accordingly, the Court will deny defendants’ motion to dismiss the Fourth Cause of 18 Action, grant defendants’ motion to strike to the extent Heyer seeks punitive damages, and 19 deny defendants’ motion to strike to the extent Heyer seeks damages for emotional 20 2 21 22 Heyer also alleges, albeit in conclusory fashion, that he “opposed practices made an unlawful employment practice, and made a charge, under [the Civil Rights Act].” (See FAC ¶ 38.) 3 23 24 25 26 27 28 Defendants request the Court take judicial notice of documents filed in the California Superior Court for Contra Costa County in an action titled Heyer v. Governing Board of the Mount Diablo Unified School District, No. 10-859. Heyer does not oppose the request. Nonetheless, while the Court may take notice of the fact that Heyer filed his “Petition for Writ of Mandate” in said action on June 2, 2010, see MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986), the Court may not accept as true, for purposes of the instant motion to dismiss, Heyer’s allegation in said petition that the District decided to demote him on April 13, 2010 (see Def.’s Req. for J. Notice, Ex. 1 ¶ 7), nor take notice of a letter from the District, dated April 14, 2010, notifying Heyer of his demotion, which letter is attached to the District’s opposition to said petition (see id. Ex. 3 at Ex. 3 attached thereto); Guam Inv. Co. v. Cent. Bldg., Inc., 288 F.2d 19, 23 (9th Cir. 1961) (holding district court may not judicially notice “facts adjudicated in another case”). 4 1 distress. 2 Heyer has not, however, alleged sufficient facts to show he has exhausted his 3 administrative remedies as to his retaliation claim. “To establish subject matter jurisdiction 4 over [a] Title VII retaliation claim, [a plaintiff] must have exhausted his administrative 5 remedies by filing a timely charge with the EEOC.” See Vasquez v. Cnty. of L.A., 349 F.3d 6 634, 644 (9th Cir. 2003). “Subject matter jurisdiction extends to all claims of discrimination 7 that fall within the EEOC’s actual investigation or an EEOC investigation that could 8 reasonably be expected to grow out of the charge.” Id. Here, Heyer did not present his 9 retaliation claim to the EEOC (see FAC Ex. 1), nor could he have done so, as, according to 10 the FAC, that claim arose after he filed his charge with the EEOC, see Vasquez, 349 F.3d 11 at 645 (“The EEOC could not have investigated [alleged retaliation] because it had not yet 12 happened by the time the EEOC was conducting its investigation.”) Further, although 13 Heyer identified Young and McMorris as responsible parties in his EEOC charge (see FAC 14 Ex. 1 at ¶ 4), the FAC does not identify the parties responsible for his demotion and asserts 15 the claim against the District alone (see FAC ¶ 9); see also Vasquez, 349 F.3d at 644 16 (noting, in deciding whether “current retaliation claim is reasonably related to the EEOC 17 charge” courts consider “such factors as the alleged basis of the discrimination, dates of 18 discriminatory acts specified in the charge, perpetrators of discrimination named in the 19 charge, and any locations at which the discrimination is alleged to have occurred”). 20 Accordingly, as this ground was not raised in defendants’ motion, the Court will order 21 Heyer to show cause why his claim for retaliation should not be dismissed for lack of 22 subject matter jurisdiction. 23 For the reasons stated above, 24 1. Defendants’ motion to dismiss is hereby GRANTED in part and DENIED in 25 part as follows: 26 a. 27 28 As to the First, Second, Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action, defendants’ motion to dismiss is hereby GRANTED; b. As to the Fourth Cause of Action, defendants’ motion to dismiss is 5 1 hereby DENIED; and c. 2 Plaintiff is hereby ORDERED TO SHOW CAUSE in writing, filed no 3 later than March 4, 2011, why the Fourth Cause of Action should not be dismissed for lack 4 of subject matter jurisdiction. 5 6 2. Defendants’ motion to strike is hereby GRANTED to the extent the FAC seeks punitive damages and is otherwise DENIED. 7 3. 8 March 4, 2011. 9 10 Plaintiff’s Second Amended Complaint, if any, shall be filed no later than IT IS SO ORDERED. Dated: February 22, 2011 MAXINE M. CHESNEY United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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