Lee v. Arizona, State of et al

Filing 36

ORDER - IT IS HEREBY ORDERED that Defendants' Motion for Judgment on the Pleadings (Dkt. 25) is GRANTED in part with respect to Counts One, Two, Three, Four and Five of the First Amended Complaint, and DENIED in part with respect to Count Six of the First Amended Complaint. IT IS FURTHER ORDERED that Plaintiff may file and serve a second amended complaint within 21 days of the date of this Order. If Plaintiff does not file and serve a second amended complaint within 21 days, then the Clerk of the Court shall dismiss the caseand enter judgment for Defendants. (See document for details). Signed by Judge James A Teilborg on 6/29/11.(LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) State of Arizona; Northern Arizona) University; and Arizona Board of Regents,) ) ) Defendants. ) ) Chunyhe Lee, No. CV 10-8135-PCT-JAT ORDER 16 17 Pending before the Court is the Motion for Judgment on the Pleadings (Dkt. 25) filed 18 by Defendants State of Arizona, Northern Arizona University (“NAU”), and the Arizona 19 Board of Regents (“ABOR”). The motion is fully briefed, and the Court rules as follows. 20 I. BACKGROUND 21 Plaintiff is a Korean-American female, who was born in 1939. (Dkt. 13 at ¶ 1.) The 22 allegations in the Complaint concern Plaintiff’s employment as an Associate Professor at 23 NAU. (Id.) As noted above, for purposes of the motion, all factual allegations in the 24 Complaint are accepted as true and construed in favor of Plaintiff. 25 Plaintiff was employed by NAU in 1972 as an Assistant Professor, and in 1978, she 26 was given tenure and promoted to Associate Professor of Chemistry of Food and Nutritional 27 Sciences in the College of Health Professions at NAU. (Id. ¶ 12.) Plaintiff was the 28 1 Academic Chair/Director of Applied Chemistry and Nutrition Sciences (“ACNS”) for more 2 than 30 years. (Id.) Plaintiff’s title of Academic Program Director of ACNS was approved 3 by Dean Patton in October 2005. (Id. ¶ 17.) 4 Between 2001 and 2005, four Caucasian Associate Professors within NAU’s College 5 of Health and Human Services received promotions to full Professor without being required 6 to be “highly meritorious” in both teaching and scholarship. (Id. ¶ 27.) 7 Plaintiff applied for a promotion to the position of full Professor in September 2006. 8 (Id. ¶ 13.) Plaintiff’s application was not initially considered by a Faculty Status Committee, 9 because Plaintiff was the only faculty member of ACNS. (Id. ¶ 34.) When an applicant for 10 professorship was younger than Plaintiff, a Faculty Status Committee was formed of faculty 11 members from academic domains similar to the applicant’s academic domain. (Id.) Plaintiff 12 was only allowed one level of faculty consideration, and there was no Faculty Status 13 Committee to review the promotion recommendation. (Id.) Plaintiff’s application was 14 denied on March 24, 2008. (Id. ¶ 13.) Plaintiff was denied the promotion, because she was 15 not rated “highly meritorious” in both teaching and scholarship. (Id. ¶ 27.) 16 Shortly after the denial of Plaintiff’s application for full professorship, Plaintiff filed 17 a lawsuit in the Superior Court for Coconino County seeking an administrative review of the 18 May 24, 2008 denial. (Dkt. 25-1, Ex. 1.) In addition to the claim for violation of due process 19 in the consideration and denial of Plaintiff’s application, Plaintiff also asserted a claim for 20 race and age discrimination. (Dkt. 13 at ¶¶ 14–17.) The Superior Court dismissed the action 21 with prejudice, because Plaintiff failed to file her opening brief before the deadline. (Dkt. 22 25-1, Ex. 2.) 23 On or about May 27, 2008, Plaintiff sent an email to Executive Dean Leslie Schulz 24 raising concerns about Dean Schulz’s academic credentials, and objecting to a change in 25 Plaintiff’s reporting structure. (Dkt. 13 at ¶ 15.) On or about November 13, 2008 and 26 December 15, 2008, Plaintiff informed Dean Schulz that she had been diagnosed with 27 depression and sleep disorder. (Id. ¶ 41.) On or about January 7, 2009, Dean Schulz sent a 28 memorandum to Plaintiff regarding Plaintiff’s title as Academic Director of ACNS. (Id. ¶ -2- 1 16; Dkt. 13-1, Ex. B.) The memorandum advised Plaintiff that she did not have the 2 responsibility or authority to hire, terminate, evaluate or supervise part-time faculty. (Id.) 3 On July 20, 2009, Plaintiff filed an EEOC Charge of Discrimination with the Civil 4 Rights Division of the Arizona Attorney General’s Office alleging discrimination and 5 retaliation on the basis of her race, color, sex, national origin, age and disability. (Id. ¶ 18; 6 Dkt. 13-1, Ex. E.) The EEOC charge alleges that Plaintiff was denied promotion to the 7 position of full Professor for discriminatory reasons. (Id.) 8 On March 24, 2010, NAU President John Haeger sent a letter to Plaintiff informing 9 her that NAU was placing her on leave with pay due to allegations that Plaintiff “may have 10 engaged in conduct that is in violation of the ABOR and Northern Arizona University 11 Conditions of Faculty Service and/or codes of conduct.” (Dkt. 13 at ¶ 19; Dkt 13-1, Ex. F.) 12 Plaintiff believes her placement on leave was in retaliation for filing the EEOC charge. (Dkt. 13 13 at ¶ 19.) On April 14, 2010, Plaintiff received two letters from NAU. (Dkt. 13 at ¶¶ 14 21–22.) The first letter, from President Haeger, informed Plaintiff that an investigation into 15 Plaintiff’s conduct had led to the recommendation of her dismissal. (Id. ¶ 21; Dkt. 13-1, Ex. 16 H.) The second letter, from Denise Muesch, an Associate Dean of the College of Heath and 17 Human Services, attached the “Statement of Charges in Support of Recommendation for 18 Dismissal of Dr. Chunhye K. Lee.” (Dkt. 13 at ¶ 21; Dkt. 13-1, Ex. I.) 19 On April 21, 2010, the EEOC issued a “Notice of Right to Sue” letter to Plaintiff in 20 connection with her July 20, 2009 charge. (Id. ¶ 20; Dkt. 13-1, Ex. G.) On July 26, 2010, 21 Plaintiff filed a complaint in the District Court (Dkt. 1), which complaint was subsequently 22 amended on November 13, 2010 (Dkt. 13). Shortly thereafter, Plaintiff’s counsel withdrew 23 as counsel of record for Plaintiff. (Dkt. 16.) 24 Plaintiff’s First Amended Complaint (referred to herein as “the Complaint”) sets forth 25 six causes of action. Count One of the Complaint is brought under Title VII of the Civil 26 Rights Action of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and alleges that Plaintiff was 27 denied a promotion on the basis of race, gender and national origin. As a result of this 28 alleged discrimination, Plaintiff was damaged by, among other things, being removed from -3- 1 her teaching position and being barred from entering the NAU campus. (Dkt. 13 at ¶¶ 2 24–30.) 3 Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), and alleges that Plaintiff experienced 4 unfair and inconsistent treatment in comparison to younger employees who were also 5 applying for a promotion to full Professor. As a result of this alleged discrimination, Plaintiff 6 was damaged by, among other things, being removed from her teaching position and being 7 barred from entering the NAU campus. (Id. ¶¶ 31–37.) Count Three of the Complaint is 8 purportedly brought under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 9 12101 et seq. (“ADA”), and alleges that Plaintiff has experienced unfair and inconsistent 10 treatment in comparison to Defendants’ employees who do not have a psychological 11 impairment. As a result of this alleged discrimination, Plaintiff was damaged by, among 12 other things, being removed from her teaching position and being barred from entering the 13 NAU campus. (Id. ¶¶ 38–45.) Count Four of the Complaint alleges that, as a result of 14 retaliatory actions taken against Plaintiff between December 17, 2007 and December 17, 15 2008 in violation of Title VII, the ADEA and the ADA, Plaintiff was damaged by, among 16 other things, being removed from her teaching position and being barred from entering the 17 NAU campus. (Id. ¶¶ 46–61.) Count Five of the Complaint is brought under Arizona’s 18 “whistleblower” statute, A.R.S. § 38-532. Plaintiff alleges that as a result of her May 27, 19 2008 email to Dean Schulz, Defendants have retaliated against Plaintiff by placing her on 20 leave and instigating an investigation of Plaintiff that ultimately led to her dismissal. (Id. ¶¶ 21 62–66.) Count Six of the Complaint alleges that Defendants violated Plaintiff’s due process 22 rights under the Fourteenth Amendment and 42 U.S.C. §§ 1983 and 1985(3),1 by denying Count Two of the Complaint is brought under the Age Discrimination in 23 24 25 26 27 28 1 “Section 1983 provides a federal remedy for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.’ As the language of the statute plainly indicates, the remedy encompasses violations of federal statutory as well as constitutional rights.” Golden State Transit v. Los Angeles, 493 U.S. 103, 105 (1989) (quoting 42 U.S.C. § 1983). Whereas, Section 1985 concerns conspiracies to interfere with civil rights, including a conspiracy to deprive a person of the equal protection of the laws or of equal privileges and immunities under the laws. 42 U.S.C. § 1985(3). -4- 1 Plaintiff’s application for a promotion, and by dismissing Plaintiff from her employment. 2 (Id. ¶¶ 69–77.) 3 II. LEGAL STANDARD 4 A motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules 5 of Civil Procedure “is properly granted when, taking all the allegations in the pleadings as 6 true, the moving party is entitled to judgment as a matter of law.” Owens v. Kaiser Found. 7 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quoting Nelson v. City of Irvine, 143 8 F.3d 1196, 1200 (9th Cir. 1998)). The Court must construe all factual allegations in the light 9 most favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 10 2009) (citing Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004)). 11 In considering a motion for judgment on the pleadings, the Court cannot consider 12 evidence outside the pleadings unless the Court treats the motion as a motion for summary 13 judgment pursuant to Rule 56. Fed.R.Civ.P. 12(d). However, the Court may consider facts 14 that are contained in materials of which the court may take judicial notice. See Barron v. 15 Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). The Court may look beyond the complaint to 16 matters of public record, and may take judicial notice of the records and reports of 17 administrative bodies. Mack v. S. Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir. 18 1986). Additionally, the Court may consider documents attached to the Complaint or 19 referred to in the Complaint, provided that the document’s authenticity is not questioned by 20 the parties. Parrino v. FHP, Inc., 146 F.3d 699, 705–06 (9th Cir. 1998); Hal Roach Studios, 21 Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 22 To the extent that a motion for judgment on the pleadings raises the defense of failure 23 to state a claim, the Court applies the Rule 12(b)(6) standard. McGlinchy v. Shell Chem. Co., 24 845 F.2d 802, 810 (9th Cir. 1988). The Court may dismiss a complaint for failure to state 25 a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory; and (2) 26 insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 27 901 F.2d 696, 699 (9th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss for failure 28 to state a claim, a complaint must satisfy the pleading requirements of Rule 8. Although a -5- 1 complaint attacked for failure to state a claim does not need detailed factual allegations, the 2 pleader’s obligation to provide the grounds for relief requires “more than labels and 3 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 4 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 5 286 (1986)). To survive a motion to dismiss, a complaint must contain sufficient factual 6 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 7 Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009). Facial plausibility exists if the 8 pleader pleads factual content that allows the court to draw the reasonable inference that the 9 defendant is liable for the misconduct alleged. Id. “Where a complaint pleads facts that are 10 ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between possibility 11 and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 12 III. ANALYSIS 13 Defendants have moved for judgment on the pleadings on the grounds of sovereign 14 immunity, statute of limitations, res judicata, and failure to state a claim upon which relief 15 can be granted. 16 A. 17 As an initial matter, Plaintiff’s Response to the Motion for Judgment on the Pleadings 18 (Dkt. 33) was not properly executed and filed by Plaintiff, who at the time of filing the 19 response, was representing herself in this action. Section II.B.3 of the Electronic Case Filing 20 Administrative Policies and Procedures Manual for the District of Arizona2 requires pro se 21 parties to submit all documents for filing to the Clerk’s Office in legible, paper form, and the 22 Clerk’s Office will scan and electronically file the document. A pro se party must seek leave 23 of the Court to electronically file documents by filing a motion and demonstrating equipment 24 and software capabilities. Plaintiff is currently pro se, and has not requested leave from the 25 Court to file documents electronically. Plaintiff must file documents consistent with the Procedural Defect in Plaintiff’s Response 26 27 28 2 The Policies and Procedures Manual is available at cm-ecf.nsf/files/$file/adm+manual.pdf. -6- 1 manner required of pro se parties. 2 electronically as an ECF registered user in the manner set forth in the Policies and Procedures 3 Manual, the Court will not accept future electronic filings from Plaintiff. Therefore, unless Plaintiff obtains leave to file 4 Rule 11(a) of the Federal Rules of Civil Procedure requires the Court to strike an 5 unsigned paper unless the omission is promptly corrected after being called to the party’s 6 attention. Fed.R.Civ.P. 11(a). After Defendants raised the signature and electronic filing 7 issues in their reply brief, Plaintiff attempted to correct the signature issue by refiling her 8 response. (Dkt. 35.) However, in refiling her response, Plaintiff continues to run afoul of 9 the electronic filing requirements in the Policies and Procedures Manual. Plaintiff cannot 10 electronically file documents through her former attorney’s ECF registration. Although the 11 Court will accept Plaintiff’s response (Dkt. 33), Plaintiff is advised that the Court will strike 12 any future violations of the Policies and Procedures Manual. 13 B. 14 Under the Eleventh Amendment, an unconsenting State or its agencies or departments 15 is immune from suits brought in federal courts by her own citizens. Pennhurst State Sch. & 16 Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see Bd. of Trustees of Univ. of Ala. v. Garrett, 17 531 U.S. 356, 363 (2001). “This jurisdictional bar applies regardless of the nature of the 18 relief sought.” Id. NAU and ABOR are arms of the State of Arizona, and can properly lay 19 claim to sovereign immunity. Rutledge v. Ariz. Bd. of Regents, 660 F.2d 1345, 1349–50 (9th 20 Cir. 1981). Therefore, unless Defendants waive their immunity or Congress validly 21 abrogates their immunity, the Eleventh Amendment bars Plaintiff’s suit. Sovereign Immunity 22 Defendants have asserted the defense of sovereign immunity to Plaintiff’s claims 23 arising under the ADEA, the ADA, Arizona’s whistleblower statute, and 42 U.S.C. §§ 1983 24 and 1985. Plaintiff argues that sovereign immunity does not apply, and requests the Court 25 grant her leave to amend her Complaint to name individual defendants. In response to 26 Defendants’ motion, Plaintiff relies on A.R.S. § 15-1625, which provides that ABOR has the 27 power to sue or be sued, as a waiver of sovereign immunity. However, Defendants do “not 28 consent to suit in federal court merely by stating its intention to ‘sue or be sued.’” College -7- 1 Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999). 2 1. Sovereign Immunity Bars Claims Under the ADEA 3 With respect to Plaintiff’s claims under the ADEA, the Supreme Court has held “that, 4 in the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by 5 private individuals. State employees are protected by state age discrimination statutes.” 6 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000); see Raygor v. Regents of Univ. of 7 Minn., 534 U.S. 533, 533 (2002). Therefore, Plaintiff’s claims under the ADEA are barred 8 by immunity under the Eleventh Amendment. Plaintiff’s claims against Defendants for 9 alleged age-related discrimination are more properly brought under Arizona law. See A.R.S. 10 11 § 41-1463. 2. Sovereign Immunity Bars Claims Under Title I of the ADA 12 The parties do not discuss the difference between Plaintiff’s ADA claim, which is 13 purportedly asserted under Title II of the ADA (Dkt. 1-1 at ¶ 39), and Supreme Court 14 precedent concerning Title I of the ADA. The Supreme Court has held that pursuant to 15 Fourteenth Amendment law, Title I of the ADA does not apply to the States. Garrett, 531 16 U.S. at 374. However, in a subsequent case, the Supreme Court held that “insofar as Title 17 II [of the ADA] creates a private cause of action for damages against the States for conduct 18 that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign 19 immunity.” United States v. Georgia, 546 U.S. 141, 159 (2006). 20 Title I of the ADA concerns employment discrimination, and provides that “[n]o 21 covered entity shall discriminate against a qualified individual on the basis of disability in 22 regard to job application procedures, the hiring, advancement or discharge of employees . . 23 . .” 42 U.S.C. § 12112(a). Whereas, Title II of the ADA, which concerns the provision of 24 public services, provides that “no qualified individual with a disability shall, by reason of 25 such disability, be excluded from participation in or be denied the benefits of the services, 26 programs or activities of a public entity, or be subjected to discrimination by any such 27 entity.” Id. § 12132. 28 Contrary to Plaintiff’s designation of Count Three as a claim for violation of Title II -8- 1 of the ADA, the allegations of the Complaint state a claim for discrimination under Title I 2 of the ADA. 3 employment of Plaintiff, and not in connection with public services provided by Defendants 4 to Plaintiff. (Dkt. 13 at ¶¶ 42–43.) The Court does not find that Plaintiff has stated a claim 5 for discrimination pursuant to Title II of the ADA; therefore, the abrogation of state 6 sovereign immunity with respect to Title II claims is inapplicable.3 Because Plaintiff’s 7 claims of discrimination arise under Title I of the ADA, Defendants are immune from suit 8 under the Eleventh Amendment. 3. 9 Count Three alleges discrimination in connection with Defendants’ Sovereign Immunity Bars the State Law Whistleblower Claim 10 Defendants assert that because states also have sovereign immunity for claims based 11 on state law, Plaintiff’s whistleblower claim is barred. Plaintiff responds that she has chosen 12 the District Court as the “outside agency” to make a final decision on her whistleblower 13 claim, as provided for in NAU’s Whistleblower Policy 5.18 (Dkt. 25-2, Ex. 4); therefore, 14 sovereign immunity does not apply. However, Plaintiff misreads the policy. The policy 15 provides that a complainant who is dissatisfied with a university officer’s decision on the 16 whistleblower complaint may file a request for a hearing, and the hearing will be conducted 17 by the American Arbitration Association. (Dkt. 25-2, Ex. 4 at ¶ E.) This is the “outside 18 agency” reviewing procedure that Plaintiff incorrectly relies upon in her response. 19 Plaintiff’s “state law claims are barred by the Eleventh Amendment, which precludes 20 the adjudication of pendent state law claims against nonconsenting state defendants in federal 21 22 23 24 25 26 27 28 3 To state a claim under Title II of the ADA, the plaintiff must allege: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his disability. Simmons v. Navajo County, 609 F.3d 1011 (9th Cir. 2010) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)). -9- 1 courts.” Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citations 2 omitted); see Stanley v. Tr. of Cal. State Univ., 433 F.3d 1129, 1133–34 (9th Cir. 2006). 3 Defendants have not abrogated sovereign immunity with respect to Plaintiff’s whistleblower 4 claim in Count Five of the Complaint. Therefore, Plaintiff’s claim is barred. 4. 5 Sovereign Immunity Bars Section 1983 and 1985 Claims 6 Defendants finally argue that lawsuits against a state based on Section 1983 and 1985 7 claims are barred by Eleventh Amendment sovereign immunity. “[T]he Supreme Court has 8 held that Section 1983 was not intended to abrogate a State’s Eleventh Amendment 9 immunity.” Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (citing Pittman 10 v. Or. Employment Dep’t, 509 F.3d 1065, 1071 (9th Cir. 2007)). The Eleventh Amendment 11 also bars Section 1985 claims brought against a state. Cerrato v. S.F. Cmty. College Dist., 12 26 F.3d 968, 972, 976 (9th Cir. 1994). Accordingly, the Court finds that Defendants have 13 not waived the Eleventh Amendment immunity with respect to Plaintiff’s claims brought 14 under 42 U.S.C. §§ 1983 and 1985(3). 15 C. Statute of Limitations 16 Defendants next argue that Plaintiff’s Title VII, ADEA and ADA claims are barred 17 by the statute of limitations on the ground that both Plaintiff’s EEOC charge, and this lawsuit 18 were untimely filed.4 Plaintiff disputes Defendants’ calculation of time. The Court has 19 already found that Plaintiff’s claims under the ADEA and the ADA are barred by Eleventh 20 Amendment immunity. The Court does note, however, that the statute of limitations periods 21 for claims under the ADA and the ADEA are the same as those for claims under Title VII.5 22 23 24 25 26 4 Defendants argue in their reply that Plaintiff’s Section 1983 and 1985 claims are untimely. However, because Defendants failed to raise this argument in the Motion for Judgment on the Pleadings, the Court will not consider it. Delgadillo v. Woodford, 527 F.3d 919, 930 n. 4 (9th Cir. 2008) (“Arguments raised for the first time in a petitioner’s reply brief are deemed waived.”) 5 27 28 Under the ADA, the enforcement procedures set forth in Title VII are provided to any person alleging discrimination on the basis of disability. 42 U.S.C. § 12117(a); Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Similarly, under the ADEA, - 10 - 1 Title VII requires a plaintiff to file a charge of discrimination with the EEOC within 2 300 days of the discriminatory conduct prior to bringing a claim.6 42 U.S.C. § 2000e-5(e). 3 “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are 4 easy to identify. Each incident of discrimination and each retaliatory adverse employment 5 decision constitutes a separate actionable ‘unlawful employment practice.’” Nat’l R.R. 6 Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Discreet discriminatory acts are not 7 actionable if time-barred. Id. at 114–15. Therefore, Plaintiff can only file a charge to cover 8 discrete acts that “occurred” within the appropriate time period. See id. at 114. Plaintiff 9 alleges that she suffered from numerous discriminatory and retaliatory acts from December 10 17, 2007, the date the ACNS laboratory was closed (Dkt. 13 at ¶ 56), through April 14, 2010, 11 the date she was dismissed from her employment (Dkt. 13 at ¶ 22). Based on the Court’s 12 review of the Complaint, it does not appear that Plaintiff has alleged that she was terminated 13 in violation of Title VII. Regardless, only incidents raised in the EEOC charge are 14 actionable.7 See Ong v. Cleland, 642 F.2d 316, 320 (9th Cir. 1981). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 charges of age discrimination must be brought before the EEOC within 300 days after the unlawful practice occurred. 29 U.S.C. § 626(d)(1)(B). 6 Because Arizona has a state agency, the Arizona Civil Rights Division, to enforce a law prohibiting employment discrimination, the 300-day limit, as opposed to the 180-day limit, in Title VII applies. See 42 U.S.C. § 2000e-5(e)(1). 7 Plaintiff’s employment was terminated on April 14, 2010 (Dkt. 13 at ¶ 22), after Plaintiff filed her charge for employment discrimination with the EEOC. Plaintiff’s July 20, 2009 EEOC charge does not contain allegations relating to wrongful termination, and Plaintiff has not amended her EEOC charge to encompass events occurring after it was originally lodged. “[A] claimant’s failure to amend his charge to include a new claim is essentially the same as a claimant’s failure to file an EEOC charge for the new claim.” Albano v. Schering-Plough Corp., 912 F.2d 384, 387 (9th Cir. 1990). The EEOC was not given the opportunity to consider the issue of Plaintiff’s termination before initiation of this action. “The failure to raise an issue administratively subverts the procedures and policies of Title VII and justifies precluding its presentation in federal court.” Ong v. Cleland, 642 F.2d 316, 320 (9th Cir. 1981). To the extent that Plaintiff may have asserted a claim for wrongful termination under Title VII, the ADA or the ADEA, the Court finds that Plaintiff has not exhausted her administrative remedies with respect to such claims. - 11 - 1 Plaintiff first filed her charge with the appropriate state agency on July 20, 2009.8 2 (Dkt. 13 at ¶ 18; Dkt. 13-1, Ex. E.) Therefore, to the extent Plaintiff’s discrimination claims 3 are based on discreet adverse employment actions that occurred prior to September 23, 2008, 4 which is 300 days before Plaintiff’s EEOC charge was filed, those claims are time-barred. 5 See Morgan, 536 U.S. at 114. 6 Because Plaintiff’s Title VII claim in Count One concerns Defendants’ decision not 7 to promote Plaintiff to full Professor, which decision was made on March 24, 2008 (Dkt. 13 8 at ¶ 14), Plaintiff was required to file a charge before the EEOC within 300 days of the 9 denial. Plaintiff did not file an EEOC charge within 300 days after the alleged discriminatory 10 action; therefore, Plaintiff’s claim for discrimination in Count One is barred by the statute 11 of limitations. With respect to Plaintiff’s retaliation claim in Count Four, Plaintiff alleges 12 discriminatory actions taken on account of Plaintiff’s race or national origin as late as August 13 2008. (Id. ¶ 58). However, this alleged discriminatory conduct did not occur within 300 14 days of Plaintiff’s EEOC charge. 15 Plaintiff argues that the 300-day filing period did not begin to toll until September 29, 16 2008, when the Superior Court dismissed Plaintiff’s earlier lawsuit. However, Plaintiff has 17 cited no authority for the proposition that the limitations period for filing an EEOC charge 18 is tolled during the reconsideration process for the denial of a promotion. Contrary to 19 Plaintiff’s argument, the Supreme Court has held that neither the entertainment of a 20 grievance, nor the pendency of a grievance, tolls the statute of limitations for filing a Title 21 VII charge with the EEOC. Delaware State College v. Ricks, 449 U.S. 250, 261 (1980) 22 (“[T]he pendency of a grievance, or some other method of collateral review of an 23 employment decision, does not toll the running of the limitations periods.”) (citing Elec. 24 Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976)); see Daviton v. Columbia/HCA 25 Healthcare Corp., 241 F.3d 1131, 1141 n.11 (9th Cir. 2001). 26 8 27 28 In her response, Plaintiff contends that she filed a complaint with the EEOC on April 15, 2009. (Dkt. 33 at p. 5.) However, the Complaint does not contain any allegations relating to such filing. - 12 - 1 Even though Plaintiff’s claim is untimely due to the failure to file a charge with the 2 EEOC within 300 days of the alleged discriminatory actions, Defendants also argue that 3 Plaintiff failed to file this action within 90 days of receiving the Notice of Right to Sue letter 4 from the EEOC. However, Plaintiff’s counsel received the Notice of Right to Sue letter on 5 April 26, 2010, and 90 days later filed this action on July 26, 2010. (Dkt. 33 at p. 2; Dkt. 33- 6 5, Ex. 5.) 7 Based on the foregoing, Plaintiff’s Title VII discrimination and retaliation claims in 8 the Complaint are barred by the statute of limitations, because Plaintiff has not filed a charge 9 of discrimination within 300 days of any allegedly discriminatory conduct. 10 D. 11 Defendants argue that under the doctrine of res judicata, the adjudication of Plaintiff’s 12 failure-to-promote claims in the prior action before the Superior Court bars Plaintiff from re- 13 litigating the same claims in this action. Plaintiff’s prior complaint before the Superior Court 14 contained allegations that NAU and ABOR violated Plaintiff’s right to due process, and 15 discriminated against Plaintiff on the basis of race and age in connection with her application 16 for a promotion to full professorship. (Dkt. 25-1, Ex. 1.) The Superior Court dismissed the 17 action with prejudice after Plaintiff failed to timely file her opening brief. (Id., Ex. 2.) Res Judicata 18 “Res judicata, also known as claim preclusion, bars litigation in a subsequent action 19 of any claims that were raised or could have been raised in the prior action.” Western Radio 20 Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997) (citations omitted). The 21 doctrine is applicable whenever there is “(1) an identity of claims, (2) a final judgment on 22 the merits, and (3) identity or privity between parties.” Id. 23 Plaintiff argues that the dismissal of the Superior Court action does not constitute a 24 decision on the merits, and, therefore, does not bar a subsequent suit based on the same cause 25 of action. Plaintiff’s unsupported contention is incorrect. Pursuant to Rule 41(b) of the 26 Federal Rules of Civil Procedure and Rule 41(b) of the Arizona Rules of Civil Procedure, a 27 dismissal for failure to prosecute acts as judgment on the merits for purposes of res judicata. 28 Fed.R.Civ.P. 41(b); Ariz.R.Civ.P. 41(b); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d - 13 - 1 708, 714 (9th Cir. 2001); Wolfinger v. Cheche, 80 P.3d 783, 794 (Ariz. App. 2003). 2 Accordingly, the Court finds that the dismissal of the Superior Court action constituted a 3 decision on the merits with respect to Plaintiff’s challenge to Defendants’ denial of her 4 application for promotion. 5 Plaintiff briefly notes that this action involves allegations of Title VII, the ADEA and 6 the ADA violations, whereas the prior Superior Court action involved general allegations of 7 race and age discrimination and due process violations. (Dkt. 33 at p. 6.) However, all of 8 the claims asserted by Plaintiff in the Superior Court action arose in connection with the 9 denial of her promotion to full Professor. “Res judicata (or claim preclusion) bar(s) all 10 grounds for recovery which could have been asserted, whether they were or not, in a prior 11 suit between the same parties on the same cause of action.” Gregory v. Widnall, 153 F.3d 12 1071, 1074 (9th Cir. 1998) (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 13 (9th Cir. 1982)). Plaintiff’s federal claims in this action clearly arise from the same nucleus 14 of facts. See Owens, 244 F.3d at 714. Because the discrimination and due process claims 15 in both the Superior Court action and this action are predicated on Defendants’ decision to 16 deny Plaintiff’s application for promotion, Plaintiff would have to produce substantially the 17 same evidence in both suits to sustain her claims. Id. The federal claims, with respect to the 18 denial of the promotion, could have been asserted in the prior Superior Court action. Based 19 on the foregoing, the Court concludes that Plaintiff’s claims based on the denial of her 20 promotion are barred by doctrine of res judicata. 21 Regardless of the preclusive effect of res judicata, the Court has already held that 22 Plaintiff’s discrimination and retaliation claims under the ADA and the ADEA, and claims 23 of due process violations under 42 U.S.C. §§ 1983 and 1985 are barred by sovereign 24 immunity, and Plaintiff’s Title VII race discrimination and retaliation claims are barred by 25 the statute of limitations. Therefore, the claims that Defendants argue are barred by res 26 judicata are also barred on other grounds. 27 E. 28 In addition to the defects discussed above, Defendants also argue that Plaintiff’s Failure to State a Claim - 14 - 1 whistleblower claim under A.R.S. § 38-532, and Plaintiff’s Section 1983 and 1985(3) claims 2 fail to state claims upon which relief can be granted. 3 1. Whistleblower Statute Does Not Apply 4 In addition to their sovereign immunity, Defendants also argue that Plaintiff’s 5 whistleblower claim is barred by A.R.S. § 38-533. Arizona’s whistleblower statute prohibits 6 an employer from taking reprisal against an employee for disclosing information to a public 7 body that the employee believes evidences a violation of any law or an abuse of authority. 8 A.R.S. § 38-532. However, the whistleblower provisions in A.R.S. § 38-532: 9 do[] not apply to an employee or former employee of a state university or the board of regents which has in effect at the time a personnel action is taken against the employee a rule or provision for the protection of its employees from reprisal for the disclosure of information to a public body, except that the employee or former employee may appeal the final administrative decision to the superior court. 10 11 12 Id. § 38-533. Plaintiff is clearly an employee of a state university or the board of regents, 13 who is claiming a personnel action was taken against her, namely her termination on April 14 14, 2010. Arizona’s whistleblower protection under A.R.S. § 38-532 is inapplicable, because 15 Defendants NAU and ABOR had in effect “a rule or provision for the protection of its 16 employees from reprisal,” in the form of Policy # 6-914 and Policy # 5.18. (Dkt. 25-2, Ex. 17 3–4.) 18 Defendants’ whistleblower polices set forth administrative procedures for filing a 19 whistleblower complaint, requesting a hearing, and seeking judicial review of a final 20 administrative decision. (Id.) There are no allegations in the Complaint that Plaintiff has 21 exhausted her administrative remedies by complying with the whistleblower complaint and 22 hearing process detailed in Defendants’ policies. Further, Plaintiff is not appealing a final 23 administrative decision. 24 Plaintiff again argues that she has chosen the District Court as the “outside agency” 25 to make a final decision on her whistleblower claim, as provided for in NAU’s 26 Whistleblower Policy 5.18. As discussed above, Plaintiff misreads the policy. According 27 to Defendant NAU’s policy, the “outside agency” that reviews whistleblower complaints is 28 - 15 - 1 the American Arbitration Association. (Id., Ex. 4.) The policy does not provide that Plaintiff 2 can pick an “outside agency” to hear her complaint. Plaintiff also relies on Walters v. 3 Maricopa County, which held that A.R.S. § 38-532 gives an alternative, permissive remedy 4 to a superior court action. 990 P.2d 677, 682 (Ariz. App. 1999). However, Plaintiff fails to 5 take into account the effect of A.R.S. § 38-533 on Plaintiff’s claim. Due to Plaintiff’s failure 6 to comply with Defendants’ whistleblower policies, Plaintiff cannot state a claim under 7 A.R.S. § 38-532. 8 2. Defendants Are Not “Persons” Under 42 U.S.C. §§ 1983 and 1985 9 Section 1983 creates a cause of action against any “person” who, under color of law, 10 deprives another of federally protected rights. 42 U.S.C. § 1983. Section 1985 creates a 11 cause of action against “persons” who engage in a conspiracy to deprive someone of federal 12 rights. Id. § 1985(3). Defendants argue that because they are not “persons,” Plaintiff fails 13 to state a claim against them under 42 U.S.C. §§ 1983 and 1985. 14 The Supreme Court has held that the term “person” under Section 1983 does not 15 include states. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 69 (1989). Additionally, 16 courts have held that the term “person” under Section 1985 has the same meaning as 17 “person” under Section 1983. E.g., Carmen v. S.F. Unified Sch. Dist., 982 F. Supp. 1396, 18 1404 (N.D. Cal. 1997) (citing cases holding same). Plaintiff, tacitly acknowledging this 19 defect, seeks leave to amend the Complaint to name individuals as defendants for purposes 20 of her Section 1983 and 1985 claims. 21 Although the Court will permit Plaintiff leave to amend the Complaint, Plaintiff is 22 cautioned that the statute of limitations for claims arising under Section 1983 is two years, 23 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1998), and the statute of limitations for 24 claims arising under Section 1985(3) is one year, 42 U.S.C. § 1986. Therefore, unless the 25 limitations period was tolled, claims based on the denial of Plaintiff’s application for 26 promotion are barred, because the denial occurred more than two years before the Complaint 27 was filed. 28 - 16 - 1 F. 2 The Court should not grant judgment on the pleadings unless it is “beyond doubt that 3 the plaintiff can prove no set of facts in support of his claim which would entitle him to 4 relief.” Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th 5 Cir. 1997). Plaintiff has sought leave to amend the Complaint to name the appropriate 6 individual defendants with respect to Count Six of the Complaint. (Dkt. 33 at p. 7.) Plaintiff 7 has already amended the Complaint once as a matter of course. However, leave to amend 8 should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Court has not 9 yet conducted a Rule 16 scheduling conference in this action; therefore, the deadline for 10 filing a motion to amend the complaint has not elapsed. Because Plaintiff has alleged facts 11 that might state a Section 1983 or 1985(3) claim regarding the denial of her promotion and 12 the termination of her employment, the Court will give Plaintiff leave to amend, rather than 13 grant judgment on the pleadings with respect to Count Six of the Complaint. 14 IV. Amendment of Complaint CONCLUSION 15 For the reasons set forth above, the Court concludes that (1) under the Eleventh 16 Amendment, Defendants are immune from suit with respect to Plaintiff’s claims under the 17 ADA, the ADEA, 42 U.S.C. §§ 1983 and 1985, and Arizona’s whistleblower statute; (2) 18 Plaintiff’s Title VII claims are untimely; and (3) the doctrine of res judicata bars Plaintiff’s 19 discrimination and due process claims against Defendants concerning the denial of her 20 promotion. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // - 17 - 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendants’ Motion for Judgment on the Pleadings 3 (Dkt. 25) is GRANTED in part with respect to Counts One, Two, Three, Four and Five of 4 the First Amended Complaint, and DENIED in part with respect to Count Six of the First 5 Amended Complaint. 6 IT IS FURTHER ORDERED that Plaintiff may file and serve a second amended 7 complaint within 21 days of the date of this Order. If Plaintiff does not file and serve a 8 second amended complaint within 21 days, then the Clerk of the Court shall dismiss the case 9 and enter judgment for Defendants. 10 DATED this 29th day of June, 2011. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -

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