-WMC Baxter-White v. Rentto et al, No. 3:2010cv01954 - Document 10 (S.D. Cal. 2011)
Court Description: ORDER granting defendants' 5 motion to dismiss complaint with leave to amend. Signed by Judge Thomas J. Whelan on 6/6/11. (kaj)
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-WMC Baxter-White v. Rentto et al Doc. 10 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 KATHRYN BAXTER-WHITE, CASE NO: 10-CV-1954 W (WMC) 14 Plaintiff, 15 16 17 18 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH LEAVE TO AMEND [DOC. 5] v. JESSICA C. RENTTO, et al., 19 Defendants. 20 21 22 On September 20, 2010, Plaintiff Kathryn Baxter-White filed this lawsuit against 23 Defendants California State University (“CSU”) and ten individuals (collectively, 24 “Defendants”). Defendants now move to dismiss. Plaintiff opposes. 25 The Court decides the matter on the papers submitted and without oral. See Civ. 26 L.R. 7.1(d.1). For the following reasons, the Court GRANTS Defendants’ motion to 27 dismiss. (Doc. 5.) 28 -1- 10cv1954w Dockets.Justia.com 1 I. BACKGROUND 2 On November 14, 2007, Plaintiff began her temporary appointment as an 3 Accounting Technician to do medical billing at CSU’s Student Health Services (“SHS”) 4 on the San Diego State University campus. (Compl. ¶¶ 16-17 [Doc. 1].) The 5 appointment was set to end on June 30, 2008. (Id. ¶ 17.) At the time she was offered 6 the position, Plaintiff was told that “the position being offered was designated as 7 temporary” and that she “would be made permanent in four years.” (Id. ¶ 16.) On July 8 1, 2008, CSU reappointed Plaintiff for another year from July 1, 2008 to June 30, 2009. 9 (Id. ¶ 17.) 10 Plaintiff’s duties included billing the Family PACT program—a federally funded 11 program to assist low-income patients with contraception and sexually transmitted 12 infections—administered by Medi-Cal. (Compl. ¶ 19.) Students at the CSU could seek 13 such assistance at SHS. (Id.) When students enrolled in the Family PACT program to 14 receive treatment or contraceptive supplies, they are not billed. Instead, SHS bills 15 Family PACT through its contractor, EDS. (Id.) 16 From July to September 2008, Plaintiff brought several of her concerns to her lead 17 and supervisor at SHS regarding suspected improper or illegal billing practices. (Compl. 18 ¶¶ 20–21, 23.) However, they did little to address or investigate these concerns. (See 19 id. ¶¶ 21, 23–25.) Thereafter, Plaintiff presented the issues to the acting director of SHS 20 in two memos which also questioned the competency of her supervisor in how he 21 handled these and other issues. (Id. ¶ 24–25.) 22 On September 16, 2008, a meeting was held to evaluate Plaintiff’s performance. 23 (Compl. ¶ 28.) Eventually, it was decided that “counseling [Plaintiff] to stop 24 investigating things would not work and they instead decided to terminate her.” (Id. ¶ 25 29.) The grounds for her termination included working outside her scope of 26 responsibilities, insubordination, and excessive absences and tardiness. (Id.) 27 Furthermore, on September 22, 2008, the acting director sent Plaintiff a letter stating 28 that “he was satisfied with the legality of billing.” (Id. ¶ 30.) And on September 23, -2- 10cv1954w 1 2008, an EDS field representative wrote to Plaintiff’s supervisor that “the billing 2 practices were compliant.” (Id.) 3 On September 23, 2008, Plaintiff was terminated. (Compl. ¶ 31.) 4 Shortly thereafter, on September 29, 2008, Plaintiff filed an internal complaint 5 with the Vice Chancellor of Human Resources (“VCHR”) alleging that she was 6 terminated in retaliation for complaining about the alleged illegal billing practices. 7 (Compl. ¶ 34.) After further investigation, the VCHR found that CSU had not 8 retaliated against Plaintiff. (Id. ¶ 37.) Plaintiff submitted a written response to the 9 finding. (Id. ¶ 29.) However, on March 16, 2009, the VCHR found again that CSU 10 had not retaliated against Plaintiff in a Final Letter of Determination. (Id. ¶ 40.) 11 On June 9, 2009, Plaintiff filed a civil complaint in San Diego Superior Court 12 against defendants CSU, Thomas Wilson, Joanne Stroud, and Shelby Stanfill that is still 13 pending. On September 20, 2010, Plaintiff filed this civil complaint against the same 14 defendants as well as seven additional individual defendants asserting claims for 15 violation of 42 U.S.C. § 1983, injunctive relief for violation of 42 U.S.C. § 1983, and 16 declaratory relief. Defendants now move to dismiss the complaint, and Plaintiff opposes. 17 18 II. STANDARD 19 The court must dismiss a cause of action for failure to state a claim upon which 20 relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 21 tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 22 578, 581 (9th Cir. 1983). All material allegations in the complaint, “even if doubtful 23 in fact,” are assumed to be true. Id. The court must assume the truth of all factual 24 allegations and must “construe them in light most favorable to the nonmoving party.” 25 Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. 26 Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996). 27 As the Supreme Court has explained, “[w]hile a complaint attacked by a Rule 28 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s -3- 10cv1954w 1 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels 2 and conclusions, and a formulaic recitation of the elements of a cause of action will not 3 do.” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations 4 in the complaint “must be enough to raise a right to relief above the speculative level.” 5 Id. at 1964-65. A complaint may be dismissed as a matter of law either for lack of a 6 cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. 7 Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 8 Generally, courts may not consider material outside the complaint when ruling 9 on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 10 1542, 1555 n.19 (9th Cir. 1990). However, courts may consider documents specifically 11 identified in the complaint whose authenticity is not questioned by parties. Fecht v. 12 Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superseded by statutes on other 13 grounds). Moreover, courts may consider the full text of those documents, even when 14 the complaint quotes only selected portions. Id. The court may also consider material 15 properly subject to judicial notice without converting the motion into one for summary 16 judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). For these reasons, the 17 Court GRANTS Defendants’ request for judicial notice. 18 19 III. DISCUSSION 20 In order to prevail on a claim for deprivation of a liberty or property interest 21 under 42 U.S.C. § 1983, a plaintiff must allege: (1) a liberty or property interest 22 protected by the Constitution; (2) a deprivation of the interest by the government; and 23 (3) lack of process. Wright v. Riverland, 219 F.3d 905, 913 (9th Cir. 2000). 24 Defendants argue that Plaintiff’s § 1983 claim fails because she does not have a property 25 interest in her employment at CSU, and she fails to sufficiently allege a deprivation of 26 a liberty interest. The Court agrees. 27 28 A. Plaintiff Does Not Have a Property Interest in Her Employment. -4- 10cv1954w 1 The Fourteenth Amendment’s due-process guarantee applies to public employees 2 who have “a property interest” in the terms or conditions of their employment. Bd. of 3 Regents v. Roth, 408 U.S. 564, 576 (1972). These interests are created “by existing 4 rules or understandings that stem from an independent source such as state law rules or 5 understandings that secure certain benefits and that support claims of entitlement to 6 those benefits.” Id. at 577; see also Skelly v. State Pers. Bd., 15 Cal. 3d 194, 207-08 7 (1975). 8 In California, “[a] public employee serving at the pleasure of the appointing 9 authority may constitutionally be terminated without judicially cognizable good case and 10 without a hearing.” Johnston v. Cal. State Univ. & Colls., 151 Cal. App. 3d 1003, 1008 11 (1984); see also Flanagan v. Benicia Unified Sch. Dist., No. CIV. S097-333 LKK/GGH, 12 2007 WL 4170632, at *6 (E.D. Cal. Nov. 19, 2007) (citing Kavanaugh v. W. Sonoma 13 Cnty. Union High Sch. Dist., 29 Cal. 4th 911, 917-18 (2003) (“Under California law, 14 a temporary employee can be summarily discharged from her employment.”). Though 15 an employee may be protected by statute or other legislation that prohibits her removal 16 except for cause and entitles her to a hearing, these protections may be superseded by 17 collective bargaining agreements for public university employees pursuant to the Higher 18 Education Employer-Employee Relations Act. Cal. Gov’t Code § 3560(b); Cal. Educ. 19 Code § 89531 (providing that the memorandum of understanding controls over 20 provisions of law in conflict); see Prof’l Eng’rs in Cal. Gov’t v. Schwarzenegger, 50 Cal. 21 4th 989, 1017 (2010) (clarifying that memoranda of understanding are “the public 22 sector equivalent of collective bargaining agreements”). Thus, constitutionally 23 protected interests can be created not only by statutes, but also by contracts such as 24 collective bargaining agreements. See San Bernadino Physicians’ Servs. Med. Grp., Inc. 25 v. San Bernadino Cnty., 825 F.2d 1404, 1408 (9th Cir. 1987) (stating that “a contract 26 can create constitutionally protected property interest[s]”). 27 In this case, Plaintiff did not have a property interest in her employment as a 28 temporary employee. Plaintiff specifically alleges that CSU employed her in a temporary -5- 10cv1954w 1 appointment. (Compl. ¶¶ 16, 117.) However, there is no statute or law that defines the 2 rights for a nonacademic temporary CSU employee. See Cal. Educ. Code §§ 89530 to 3 89546 (regarding appointment, tenure, layoff and dismissal of California State 4 University employees). Thus, the Court looks to the governing Collective Bargaining 5 Agreement (“CBA”) to determine whether it has created a constitutionally protected 6 property interest for a temporary nonacademic employee such as Plaintiff. See Cal. 7 Educ. Code § 89531; Cal Code Regs. tit. 5, § 43825; Cal. Gov’t Code § 3560(b). 8 The CBA provides that “a temporary appointment shall specify the expiration 9 date of the appointment and that the appointment may expire prior to that date.” (Req. for 10 Judicial Notice Ex. 2, CBA § 9.6 (emphasis added) [Doc. 5-2].) The CBA requires only 11 that the temporary employee be given notice some time before terminating the 12 employment prior to the expiration date. (Id.) Furthermore, permanent status for a 13 temporary employee is subject to serving in a Bargaining Unit Classification for at least 14 four consecutive years before receiving permanent status. (Id., CBA § 9.52.) As an 15 Accounting Technician, Plaintiff was a member of Unit 7 of the California State 16 University Employees Union. (See id., CBA App. A at 161.) However, Plaintiff alleges 17 that CSU employed her for less than one year from November 2007 to September 2008. 18 (Compl. ¶¶ 17, 31.) Thus, Plaintiff did not qualify for permanent status, and was a 19 temporary employee of CSU at all times subject to termination at any time. 20 Consequently, Plaintiff could have been terminated at any time prior to the end of her 21 appointed term once given notice in accordance to the CBA. Therefore, Plaintiff does 22 not have a constitutionally protected property interest in her employment that arises 23 from statute or the CBA. 24 // 25 // 26 27 B. Plaintiff Fails to Sufficiently Allege a Deprivation of a Liberty Interest. 28 -6- 10cv1954w 1 A liberty interest is implicated if a charge impairs the plaintiff’s reputation for 2 honesty or morality. Vanelli v. Reynolds Sch. Dist., 667 F.2d 773, 777 (9th Cir. 1982); 3 see also Roth, 408 U.S. at 573 (“The termination of a public employee which includes 4 publication of stigmatizing charges triggers due process protections”). The procedural 5 protections of due process apply if: (1) the accuracy of the charge is contested; (2) there 6 is some public disclosure of the charge; and (3) the charge is made in connection with 7 termination of employment. Jones v. Los Angeles Cmty. Coll. Dist., 702 F.2d 203, 206 8 (9th Cir. 1983). “If a liberty interest is thereby implicated, the employee must be given 9 an opportunity to refute the stigmatizing charge.” Mustafa v. Clark Cnty. Sch. Dist., 10 157 F.3d 1169, 1179 (9th Cir. 1998). “Injury to reputation alone is insufficient to 11 establish a deprivation of a liberty interest protected by the Constitution.” Ulrich v. 12 City & Cnty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002). 13 In this case, Plaintiff fails to allege that anyone at CSU disclosed any charges 14 relating to her employment that impaired her reputation for honesty or morality to the 15 public. In fact, the complaint is completely devoid of any allegation of any disclosure 16 by CSU to the public. Therefore, Plaintiff fails to sufficiently allege a deprivation of a 17 constitutionally protected liberty interest in her employment at CSU. 18 Accordingly, because Plaintiff does not have a constitutionally protected property 19 interest that arises from statute or the CBA, and fails to allege a deprivation of a liberty 20 interest in her employment at CSU, the Court finds that Plaintiff fails to sufficiently 21 allege a claim for violation of 42 U.S.C. § 1983. This finding also disposes all of the 22 remaining claims against Defendants. 23 // 24 // 25 // 26 // 27 28 IV. CONCLUSION & ORDER -7- 10cv1954w 1 In light of the foregoing, the Court GRANTS Defendants’ motion to dismiss the 2 complaint WITH LEAVE TO AMEND. (Doc. 5.) 3 4 IT IS SO ORDERED. 5 6 DATED: June 6, 2011 7 8 Hon. Thomas J. Whelan United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- 10cv1954w
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