Kunzi v. Arizona Board of Regents et al

Filing 53

ORDER denying 35 ABR's Motion for Partial Judgment on the Pleadings. Signed by Senior Judge James A Teilborg on 11/25/2013.(TLB)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Plaintiff,

10
11
12
13

No. CV-12-02327-PHX-JAT

Tasha Kunzi,

ORDER

v.
Arizona Board of Regents, an Arizona
public entity, Scott H. Decker, and Travis
Pratt,
Defendants.

14
15

Pending before the Court is Arizona Board of Regents’, Scott H. Decker’s, and

16

Travis Pratt’s (collectively, “ABR”) Motion for Partial Judgment on the Pleadings under

17

Federal Rule of Civil Procedure 12(c). (Doc. 35).

18

I.

Background

19

Plaintiff Tasha Kunzi (“Kunzi”) has alleged that ABR engaged in sexual

20

harassment, discrimination, and retaliation against her while she was enrolled in two

21

separate doctoral programs at Arizona State University (“ASU”). (See Doc. 33). Kunzi

22

alleges the following facts in her Amended Complaint.

23

In April 2009, Kunzi began a romantic relationship with Dr. Travis Pratt, a

24

professor in ASU’s School of Criminology and Criminal Justice (the “SCCJ”). Id. at 3.

25

In July 2009, Kunzi moved to Arizona to attend ASU as a doctoral student in the SCCJ.

26

Id.

27

Associate. Id. at 3-4.

28

Kunzi was then employed by the school as a Research Assistant and Faculty

In February 2010, Kunzi ended her relationship with Dr. Pratt. Id. at 4. Dr. Pratt

1

then began to harass and retaliate against Kunzi. Id. Further, other professors in the

2

SCCJ refused to meaningfully work with Kunzi, including Dr. Scott Decker, the director

3

of the SCCJ. Id. at 5. For example, Dr. Decker started to assign Kunzi clerical work,

4

instead of the research projects she was previously assigned. Id. As a result of this

5

harassment and retaliation, Kunzi withdrew from the SCCJ doctoral program on July 29,

6

2010, and enrolled in a different doctoral program at ASU.

7

employed as a Faculty Associate in the SCCJ despite this withdrawal. Id. at 5-6. Dr.

8

Decker and Dr. Pratt continued to retaliate against Kunzi by revealing Kunzi’s

9

relationship with Dr. Pratt to third parties. Id. at 6.

Id.

Kunzi remained

10

In November 2010, Kunzi complained about Dr. Pratt’s actions and Dr. Decker’s

11

failure to stop Dr. Pratt to the Assistant Dean of Students and the Associate Dean of the

12

College of Public Programs at ASU. Id. But the ASU administration failed to stop Dr.

13

Pratt’s harassment. Id.

14

In December 2010, Kunzi confronted Dr. Pratt about the harassment. Id. Dr. Pratt

15

informed Kunzi that he could ruin her career, but, if she took him back, the harassment

16

would stop. Id. at 6-7.

17

In May 2011, Kunzi left both her job as a Faculty Associate and her new doctoral

18

program as a result of this harassment. Id. at 8. But Dr. Pratt continued to harass Kunzi

19

by repeatedly contacting Kunzi and calling her new employer to reveal the details of

20

Kunzi’s departure from ASU. Id.

21

Finally, in spring of 2012, Dr. Pratt and Dr. Decker discriminated against Kunzi’s

22

new husband by unfairly grading his comprehensive doctoral examination. Id. Despite

23

Dr. Pratt’s and Dr. Decker’s actions, Dr. Pratt and Dr. Decker are still employed by ASU.

24

Id. at 9. Further, Dr. Pratt is presently involved in another intimate relationship with one

25

of his female graduate students, and is continuing to harass his other female students. Id.

26

Kunzi alleges that conduct described in her Amended Complaint violates her

27

rights under 42 U.S.C. § 1983 (“Section 1983”); Title VII of the Civil Rights Act of

28

1964, 42 U.S.C. § 2000e (“Title VII”); and Title IX of the Education Amendments of

-2-

1

1972, 20 U.S.C. § 1681(a) (“Title IX”). Id. at 10. ABR now contends that portions of

2

Kunzi’s complaint are time barred either by the applicable statute of limitations or by

3

Title VII’s Equal Employment Opportunity Commission (the “EEOC”) timely complaint

4

requirement. (See Doc. 35).

5

II.

Legal Standard

6

A motion for judgment on the pleadings pursuant to Federal Rule of Civil

7

Procedure (“Rule”) 12(c) “is properly granted when, taking all the allegations in the

8

pleadings as true, the moving party is entitled to judgment as a matter of law.” Nelson v.

9

City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998). In other words, dismissal pursuant to

10

Rule 12(c) is inappropriate in circumstances in which, if the facts were as pleaded, they

11

would entitle the plaintiff to a remedy. Merchants Home Delivery Serv., Inc. v. Hall &

12

Co., 50 F.3d 1486, 1488 (9th Cir. 1995). In particular, when a defendant is asserting that

13

a plaintiff’s claim is time barred, the untimeliness must clearly appear on the face of the

14

complaint. See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir.

15

1995) (“A motion to dismiss based on the running of the statute of limitations period may

16

be granted only ‘if the assertions of the complaint, read with the required liberality,

17

would not permit the plaintiff to prove that the statute was tolled.’” (quoting Jablon v.

18

Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980))).

19

III.

Analysis

20

As already explained, ABR believes that portions of Kunzi’s claims are time

21

barred. In particular, ABR alleges that A.R.S. § 12-542, Arizona’s two-year statute of

22

limitations for personal injury claims, applies to Kunzi’s claims under Section 1983 and

23

Title IX. (Doc. 35 at 2). Applying this statute, ABR concludes that any Section 1983 or

24

Title IX claims “that occurred before October 30, 2010 are time barred.” Id.

25

Turning to Kunzi’s Title VII claim, ABR contends that a Title VII plaintiff must

26

exhaust administrative remedies by filing a timely charge with the EEOC. Id. at 3. To

27

file a timely charge, a plaintiff must file within three hundred days of the alleged

28

discriminatory conduct. Id. This timely filing requirement is treated as a statute of

-3-

1

limitations. Id. Applying the filing requirement, ABR concludes that Kunzi is barred

2

from raising any claims arising out of “any discrete or retaliatory acts that occurred

3

before November 13, 2010.” Id.

4

In response, Kunzi does not question ABR’s proposed statute of limitations or

5

ABR’s calculation of the critical dates. Instead, Kunzi asserts that it is not apparent on

6

the face of the complaint that Kunzi’s claims are untimely because her claims are timely

7

under the “continuing violation” theory explained in Anderson v. Reno, 190 F.3d 930,

8

936 (9th Cir. 1989). (Doc. at 4).

9

In reply, ABR contends that the Supreme Court’s decision in National Railroad

10

Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002), invalidated the portion of the

11

continuing violation theory relied on by Kunzi. (Doc. 41 at 2). Without the continuing

12

violation theory of Anderson, ABR again asserts that Kunzi’s claims are partially time

13

barred.

14

A.

The Critical Dates for Timely Filing

15

As an initial matter, the Court concludes that ABR correctly identified the

16

applicable statute of limitations and correctly identified the critical date for Kunzi’s

17

claims under Section 1983 and Title IX. Neither Title IX nor Section 1983 explicitly

18

provides a statute of limitations. Accordingly, the Court will apply the most applicable

19

state statute of limitations, the statute of limitations for personal injury. See Stanley v.

20

Trs. of Cal. State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) (applying a state personal

21

injury statute of limitations to Title IX claims); Pouncil v. Tilton, 704 F.3d 558, 573 (9th

22

Cir. 2012) (applying a state personal injury statute of limitations to Section 1983 claims).

23

In Arizona, the personal injury statute of limitations period is two years from the date the

24

cause of action accrues. See A.R.S. § 12-542. As Kunzi filed her Complaint on October

25

30, 2012, the critical date for Kunzi’s Section 1983 and Title IX claims is October 30,

26

2010. (See Doc. 1).

27

Turning to Kunzi’s Title VII claims, the Court similarly concludes that ABR

28

correctly identified the critical date. In order to bring a Title VII claim, a plaintiff must

-4-

1

first exhaust his or her administrative remedies by filing a timely charge with the EEOC.

2

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003). In this case, the

3

charge must have been filed within three hundred days to be considered timely. See 24

4

U.S.C. § 2000e-5(e)(1). The EEOC timely filing requirement is treated as a statute of

5

limitations. Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 1998). Kunzi

6

filed her EEOC charge on September 9, 2011. (Doc. 33, Exh. A). Thus, the critical date

7

for Kunzi’s Title VII claims is November 13, 2010.
B.

8

The Continuing Violation Theory and National Railroad Passenger
Corporation v. Morgan

9
10

ABR contends that the portion of the continuing violation theory relied on by

11

Kunzi was overruled by the Supreme Court’s holding in Morgan. (Doc. 41 at 2). Thus,

12

the Court turns to an examination of Morgan.

13

In Morgan, the Supreme Court addressed the continuing violation theory in the

14

context of Title VII claims.1 Morgan, 536 U.S. at 107. The Supreme Court noted that

15

the Ninth Circuit permitted a plaintiff to establish a continuing violation either by

16

showing: (1) a “serial violation,” where “the alleged acts of discrimination occurring

17

prior to the limitations period are sufficiently related to those occurring within the

18

limitations period,” or (2) a “systemic violation” resulting from a “systemic policy or

19

practice of discrimination that operated, in part, within the limitations period.”

20

(quoting Morgan v. Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1015-16 (9th Cir. 2000)).

21

The Supreme Court then rejected the “serial violation” basis for a continuing violation

22

claim.

23

discriminatory acts are not actionable if time barred, even when they are related to acts

24

alleged in timely filed charges.” Id.

25

Morgan, 536 U.S. at 113.

Id.

The Supreme Court concluded that “discrete

Continuing in their analysis, however, the Supreme Court differentiated between

26
27
28

1

Although Morgan explicitly addressed only Title VII claims, Morgan has since
been applied to Section 1983 and Title IX claims. See RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1050 (9th Cir. 2002) (applying Morgan to Section 1983 claims);
Stanley, 433 F.3d at 1136 (applying Morgan to Title IX claims).
-5-

1

“discrete discriminatory acts” and “hostile environment claims.” Id. at 115. Addressing

2

hostile environment claims, the Supreme Court explained that “[p]rovided an act

3

contributing to the claim occurs within the filing period, the entire time period of the

4

hostile environment may be considered by a court for the purposes of determining

5

liability.”

6

environment claims to systemic violations, the Ninth Circuit has concluded that “Morgan

7

left undisturbed our case law governing continuing systemic violations.” Mansourian v.

8

Regents of Univ. of Cal., 602 F.3d 957, 974 n.22 (9th Cir. 2010)

9

Id. at 117.

Although the Supreme Court did not explicitly tie hostile

C. Applying Morgan to Kunzi’s Complaint

10

Under Morgan, Kunzi “has adequately pled an ongoing claim if she can show a

11

systematic policy or practice that operated, in part, within the limitations perioda

12

systematic violation.” Id. at 973-74 (internal citations and quotations omitted). If Kunzi

13

is only alleging discrete acts, however, discrete acts that occurred before the critical dates

14

identified are time barred. See Morgan, 536 U.S. at 107. Kunzi’s complaint does not

15

explicitly reveal which theory she is relying on. (See Doc. 33 at 10). But, the Court may

16

grant a motion under Rule 12(c) based on the statute of limitations period only if the

17

assertions of the complaint, read with the required liberality, would not permit the

18

plaintiff to prove a systemic violation. See Supermail Cargo, Inc., 68 F.3d at 1206-07

19

(reversing a Rule 12(c) dismissal because the facts alleged in the complaint may allow

20

the plaintiff to prove that the statute of limitations should be equitably tolled).

21

Reading Kunzi’s complaint with the required liberality, the Court cannot conclude

22

that the facts alleged would not permit Kunzi to prove a systemic violation. Under Title

23

IX and Title VII, a plaintiff can prove a hostile work environment due to sexual

24

harassment by showing: “(1) she was subject to verbal or physical conduct because of her

25

sex; (2) the conduct was unwelcome; and (3) the conduct was severe or pervasive enough

26

that it altered the conditions of her employment and created an abusive work

27

environment.” Stanley, 433 F.3d at 1137 (applying this standard to Title IX claims). See

28

also Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421 (9th Cir. 2013)

-6-

1

(applying this standard to Title VII claims).

2

In her complaint, Kunzi alleges consistent sexual harassment by Dr. Pratt from

3

February 2010 to spring of 2012, including a December 2010 statement that the

4

harassment would stop if she agreed to have a relationship with Dr. Pratt. Further, she

5

alleges that the ASU administration failed to correct Dr. Pratt throughout this period.

6

Finally, she alleges that Dr. Pratt’s sexual harassment of female students continues to this

7

day.

8

program, received less meaningful work than she previously had, and eventually quit her

9

job and withdrew from the university.2 Further, Kunzi alleges that this harassment

10

The result of this discrimination was that Kunzi resigned from one doctoral

caused her husband to fail his doctoral examination.

11

These allegations sufficiently plead facts that qualify as a hostile work

12

environment where at least one discriminatory act occurred after the critical dates of

13

October 30, 2010, and November 13, 2010.3 Further, these facts are sufficient to show a

14

systemic violation under Section 1983.

15

Accordingly, the Court will deny ABR’s Motion for Partial Judgment on the Pleadings.

16

///

17

///

18

///

19

///

See Mansourian, 602 F.3d at 973-74.

20
2

21
22
23
24
25
26
27
28

ABR attempts to draw a distinction between Kunzi’s withdrawal from the SCCJ
and Kunzi’s latter withdrawal from a different doctoral program. (Doc. 41 at 6). ABR
then argues that Kunzi’s withdrawal from the SCCJ is insufficiently connected to her
later withdrawal to allow both withdrawals to be encompassed by one hostile work
environment claim. Id. The Court sees no principled reason to make this distinction
because both withdrawals were allegedly caused by the same underlying harassment,
both doctoral programs were at ASU, and Kunzi was employed by the SCCJ as a Faculty
Associate during the entire period.
3

ABR appears to argue that Kunzi fails to allege a systemic violation because she
failed to allege the requirements of a pattern-or-practice claim. (Doc. 41 at 2 n.2). ABR
relies on Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003), for this argument.
(Doc. 41 at 2 n.2). Cherosky, however, distinguishes between systemic violations, which
require at least one act within the statute of limitations period, and practice-or-pattern
claims, which require no acts within the limitations period. See Cherosky, 330 F.3d at
1246-47 (distinguishing hostile work environment claims from practice-or-pattern
claims).
-7-

1

III.

CONCLUSION

2

Based on the foregoing,

3

IT IS ORDERED that ABR’s Motion for Partial Judgment on the Pleadings

4
5

(Doc. 35) is denied.
Dated this 25th day of November, 2013.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-