Jones v. Grand Canyon University et al

Filing 68

ORDER that the motion to dismiss (Doc. 19 ) is granted without leave to amend. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/7/17. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ronald David Jones,

No. CV-16-04374-PHX-DGC

Plaintiff,

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ORDER

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v.

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Grand Canyon University, et al.,

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Defendants.

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Plaintiff Ronald David Jones filed this action against Defendant Grand Canyon

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University (“GCU”). Doc. 1. Plaintiff asserts violations of his constitutional, religious,

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and civil rights. Docs. 8, 10. Plaintiff has named the following individuals as additional

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Defendants: Paul Newman, Don Done, Andrew Sutherland, Kenneth Hood, Rose Shaw,

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Shakeisha Chambers, Casey Fetkenhier, Terry Bovinet, and Ted Rivera. Doc. 10. GCU

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has filed a motion to dismiss Plaintiffs claims pursuant to Rule 12(b)(6) of the Federal

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Rules of Civil Procedure.

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individual Defendants who have appeared in this case – join GCU’s motion to dismiss.

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Doc. 56. The motion is fully briefed (Docs. 59, 64), and no party has requested oral

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argument. For the reasons set forth below, the Court will grant Defendants’ motion.

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I.

Doc. 19.

Defendants Chambers and Done – the only

Background.

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The following facts are taken from Plaintiff’s second amended complaint and are

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taken as true for the purposes of this motion. Defendant GCU is a private Christian

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university located in Phoenix, Arizona. See Doc. 10 at 2; Doc. 19 at 3-6. All other

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Defendants reside in Arizona. Doc. 10 at 2-3. Plaintiff is a Florida resident and former

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student of GCU. See id., ¶¶ 2-11. Between February 2010 and April 2014, Plaintiff

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enrolled in several online courses at GCU seeking his master’s degree in Christian

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Studies. Id.

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In February 2010, Plaintiff spoke with Defendant Newman. Id., ¶ 2. At that time,

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Newman told Plaintiff that GCU “would find Plaintiff a job” and “promised Plaintiff [he

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would be] paid $1,000 each semester if he maintained a B average.” Id. Plaintiff alleges

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that Newman was tasked with completing Plaintiff’s orientation with GCU, but Newman

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failed to show Plaintiff how to enter responses to student posts in online classes or how to

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check grades. Id. “Plaintiff completed two eight week courses and received two C’s

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because of Defendant Newman’s actions or inactions during Plaintiff’s orientation . . . .

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[Newman’s actions] caused Plaintiff to lose $1000 a semester.” Id. “When Plaintiff

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finally pull [sic] grades up to a 3.0, Defendant Don Done went back and changed

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Plaintiff’s A grade to a B causing Plaintiff’s average to fall below 3.0.” Id., ¶3.

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In July 2010, Defendant Andrew Sutherland gave Plaintiff a failing grade without

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grading Plaintiff’s completed assignments. Id., ¶ 4. Plaintiff asserts that Sutherland

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“refused to read [the] completed assignment[s] because of Plaintiff[’s] perspective of the

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Bible being a Black Book.” Id.

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In April 2011, Defendant Kenneth Hood gave Plaintiff a C+ grade in an unnamed

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course. Id. ¶ 5. Plaintiff asserts that this grade was improper because he “was grade[d]

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based on race Black [sic] while White student[s] [were] given better grades for work that

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was not as good as Plaintiff[’s] work.” Id.

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Plaintiff,” “often times expressed his racist opinion when referring to Plaintiff[’s]

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work[,]” and “was encouraged by [GCU] to give Plaintiff [a] bad grade so that Plaintiff

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would not receive the $1000 promised to Plaintiff for keeping a 3.0 average.” Id.

Furthermore, “Hood was racist toward

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In August 2011, Defendant Rose Shaw “dropped Plaintiff out [of] a class and out

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of the university” while “Plaintiff had an A average in [] Ryan Hanning’s class[.]” Id.,

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¶ 6. Plaintiff “had to take the class over again losing the money paid for the class.” Id.

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In March 2014, Defendant Shakeisha Chambers “gave Plaintiff a bad grade in [an]

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internship to force Plaintiff to work on a second master’s degree.” Id., ¶ 7. Plaintiff had

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completed all course work for the internship and submitted all requested information to

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GCU.

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Plaintiff[’s] place of internship[,]” Plaintiff “personally went back to place of internship”

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to check. Id. Plaintiff asserts that he checked with his place of internship “several

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times,” and “every time was told that all information was submitted.” Id.

Id.

When “[GCU] said they did not receive Plaintiff[’s] information from

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In April 2014, Defendant Casey Fetkenhier “tried to encourage Plaintiff into going

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to place of internship and ‘make them email’ Plaintiff’s grades.” Id., ¶ 8. Plaintiff states

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that “[i]t sounded as if [Fetkenhier] wanted Plaintiff to break the law.” Id. Additionally,

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“Fetkenhier tried to bull[y] Plaintiff into working on a second master’s degree” by

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“call[ing] Plaintiff on [his] cell phone . . . after being told not to call [that number].”

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Id. Ultimately, GCU “enrolled Plaintiff in a second degree program and now says that

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Plaintiff owes them money” and “cannot get [his first] Master’s Degree until [he]

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complete[s] a second Master’s Degree program.” Id.

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At some point during Plaintiff’s time at GCU, Defendants Terry Bovient and Ted

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Rivera each, in apparently distinct and unrelated instances, “gave Plaintiff a grade of C

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while giving White students and females an A for work that was not as good as

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Plaintiff[’s].” Id., ¶¶ 9-10. Furthermore, Plaintiff claims that he filed a complaint against

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GCU, its instructors and counselors, but the individual that took the complaint, Kenya

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King, never turned it in. Id., ¶ 11.

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Following each factual allegation described above, Plaintiff asserts that the

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relevant party engaged in the described conduct because of Plaintiff’s race, sex, age, and

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religious beliefs. See, e.g., id., ¶ 12.

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II.

Legal Standard.

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A successful motion to dismiss under Rule 12(b)(6) must show either that the

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complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its

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theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A

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complaint that sets forth a cognizable legal theory will survive a motion to dismiss as

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long as it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief

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that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when “the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Id., 556 U.S. at 678 (citing Twombly,

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550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

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(citing Twombly, 550 U.S. at 556).

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III.

Analysis.

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Plaintiff asserts five claims: (1) “1st Amendment Religious and Political

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Freedom[,]” (2) “14th Amendment Civil Rights in the States[,]” (3) “Violation of Civil

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Rights Title VII by discriminating against Plaintiff[,]” (4) “Violation of Due Process[,]”

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and (5) “Discrimination” in violation of “Chapter 760, Florida Statutes, and Title VII of

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the Federal Civil Rights Act of 1964, and the Age Discrimination in Employment Act,

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and the Americans with Disabilities Act[.]” Id. at 12-13. Plaintiff requests relief in the

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form of receiving a Master’s Degree and $150,000,000.

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A.

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Plaintiff’s first, second, and fourth claims allege that GCU violated Plaintiff’s

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constitutional rights to religious freedom, equal protection, and due process, in violation

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of the First and Fourteenth Amendment. Doc. 1 at 11-12; Doc. 58 at 1, 3-5. These

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claims fail as a matter of law.

Claims 1, 2, and 4: Violation of Plaintiff’s Constitutional Rights.

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“[I]t is fundamental that the First Amendment prohibits governmental

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infringement on the right of free speech. Similarly, the Fourteenth Amendment, which

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prohibits the states from denying federal constitutional rights and which guarantees due

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process, applies to acts of the states, not to acts of private persons or entities.” Rendell-

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Baker v. Kohn, 457 U.S. 830, 837-38 (1982). “And § 1983, which was enacted pursuant

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to the authority of Congress to enforce the Fourteenth Amendment, prohibits interference

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with federal rights under color of state law.” Id. “‘[U]nder color’ of law has consistently

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been treated as the same thing as the ‘state action’ required under the Fourteenth

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Amendment.” Id. “The core issue presented in this case is . . . whether the school’s

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action . . . can fairly be seen as state action. If the action of the respondent school is not

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state action, our inquiry ends.” Id. Private conduct may be considered state action if

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there is “such a close nexus between the State and the challenged action” that the

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individual’s conduct “may be fairly treated as that of the State itself.” Brentwood Acad.

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v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295-96 (2001).

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Plaintiff fails to allege any connection between Defendants’ conduct and the

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government. Plaintiff asks the Court to read his allegations “[a]ssuming that the named

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Defendants are considered persons acting under color of state law[.]” See, e.g., Doc. 58

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at 1. But the Court cannot make that assumption; Plaintiff must plead facts supporting

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his claims. Because Plaintiff does not dispute that GCU is a private university and does

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not allege any facts showing a close nexus between Defendants’ alleged conduct and the

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State, Plaintiff’s constitutional claims must be dismissed.

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B.

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Plaintiff’s third and fifth claims allege that Defendants discriminated against

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Plaintiff in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) (42 U.S.C.

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§ 2000e et seq.), the Age Discrimination in Employment Act (“ADEA”) (29 U.S.C.

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§ 623), the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101, et seq.), and

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the Florida Civil Rights Act of 1992 (“FCRA”) (Fla. Stat. Ann. § 760.01 et seq.).

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Claims 3 and 5: Discrimination in Violation of Federal and State Law.

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Title VII and the ADEA.

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Defendants assert that Plaintiff fails to state a claim under Title VII and the ADEA

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because both statutes apply only to discrimination in the employment context. Doc. 19 at

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7-8. The Court agrees.

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Title VII applies to workplace discrimination on the basis of race, color, religion,

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sex, or national origin. See 42 U.S.C. § 2000e-2 (“It shall be an unlawful employment

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practice for an employer to” discriminate based on an “individual’s race, color, religion,

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sex, or national origin”); see also Ricci v. DeStefano, 557 U.S. 557, 580 (2009) (Title

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VII’s purpose is to provide a workplace free of discrimination). Likewise, the ADEA

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applies to workplace discrimination based on an individual’s age. See 29 U.S.C. § 623

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(“It shall be unlawful for an employer” to “discriminate against[] any individual because

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of such individual’s age[.]”); see also Gomez-Perez v. Potter, 553 U.S. 474, 492 (2008).

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Plaintiff does not allege that he was employed by GCU or that he was denied

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employment on the basis of discrimination. Accordingly, Plaintiff’s Title VII and ADEA

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claims must be dismissed.

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2.

ADA.

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“It is the purpose of [the ADA] to provide a clear and comprehensive national

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mandate for the elimination of discrimination against individuals with disabilities[.]” 42

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U.S.C. § 12101(b). Plaintiff makes only a passing reference to the ADA in his second

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amended complaint. Doc. 10 at 13. But to the extent Plaintiff does assert an ADA claim,

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it fails because Plaintiff does not allege that he is disabled or that Defendants

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discriminated against him on the basis of a disability. See generally, id.

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3.

FCRA.

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A plaintiff may not assert a claim under the FCRA unless he submits a complaint

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to the Florida Commission on Human Relations (“the Commission”) within 365 days of

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the alleged violation, and either: (1) the Commission issues a determination of reasonable

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cause, or (2) the Commission issues no determination within 180 days of the filing of the

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complaint. See Fla. Stat. Ann. § 760.11(1), (4)-(5), (8). Defendants argue that Plaintiff’s

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FCRA claim must be dismissed because Plaintiff has “not plead the basis for his state law

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claim, nor explain[ed] why the Court should exercise jurisdiction over it,” and he failed

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to file a complaint with the Commission within 365 days. Doc. 19 at 8. Plaintiff does

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not address these arguments in his response.

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The Court need not consider whether it should exercise jurisdiction over the

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FCRA claim because it is uncontested that Plaintiff did not file a complaint with the

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Commission. Plaintiff’s FCRA claim will be dismissed.

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4.

Statute of Limitations.

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Defendants argue that Plaintiff’s Title VII and FCRA claims are time-barred.

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Doc. 19 at 9-10. Title VII claimants must file an EEOC complaint within 300 days of the

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alleged discrimination (42 U.S.C. § 2000e-5(e)), and FCRA claimants must file a

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complaint with the Commission within 365 days (Fla. Stat. Ann. § 760.11(1)). Plaintiff’s

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latest alleged instance of discrimination occurred in April 2014. Doc. 10, ¶ 8. Plaintiff

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filed this action approximately 22 months later. See Doc. 1. Accordingly, Plaintiff’s

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Title VII and FCRA claims also fail because they are untimely.

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C.

Leave to Amend.

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“Leave to amend should be granted if it appears at all possible that the plaintiff

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can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). But “[a]

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district court may dismiss a complaint without leave to amend if amendment would be

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futile.” Airs Aromatics, LLC v. Opinion Victoria's Secret Stores Brand Mgmt., Inc., 744

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F.3d 595, 600 (9th Cir. 2014) (citation and quotation marks omitted).

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Plaintiff has had three opportunities to plead his claims. His initial complaint was

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dismissed for failure to plead sufficient facts to show that the Florida court where it was

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filed was the proper venue. Doc. 7. Plaintiff’s first amended complaint was dismissed

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for failure to allege sufficient facts to state a claim.

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guidance on the level of factual detail required in his second amended complaint. Id. In

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Plaintiff’s second amended complaint, the constitutional claims under the First and

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Fourteenth Amendments fail to allege state action and the discrimination claims under

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Title VII, the ADEA, and the FRCA fail for a variety of reasons. The Court has no

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reason to think that the defects in these claims could be cured by a fourth opportunity to

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amend. Nor has Plaintiff provided any reason in his first three complaints to think that he

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is disabled or that Defendants failed to provide him access based on a disability. The

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Court concludes that Plaintiff has had ample opportunity to plead his claims, and that any

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further attempts at amendment would be futile.

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Doc. 9.

The Court provided

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IT IS ORDERED that the motion to dismiss (Doc. 19) is granted without leave
to amend. The Clerk is directed to terminate this action.
Dated this 7th day of April, 2017.

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