Bacon-Dorow v. Prescott Unified School District

Filing 17

ORDER that Defendant Prescott Unified School District's 9 Motion to Dismiss is granted. ORDERED that Plaintiff Jalynn Bacon-Dorow's 13 Motion for Leave to Amend Complaint is denied without prejudice to filing a further amended complaint by November 22, 2013. If Plaintiff Jalynn Bacon-Dorow does not file a further amended complaint by November 22, 2013, the Clerk is directed to dismiss this case with prejudice. Signed by Judge Neil V Wake on 10/30/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jalynn Bacon-Dorow,
Plaintiff,

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ORDER

vs.

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No. CV-13-08039-PCT-NVW

Prescott Unified School District,
Defendant.

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Before the Court are Defendant Prescott Unified School District’s Motion to

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Dismiss (Doc. 9) and Plaintiff Jalynn Bacon-Dorow’s Motion for Leave to Amend

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Complaint (Doc. 13).

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I.

SERVICE OF PROCESS

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Prescott Unified School District (“District”) contends that Bacon-Dorow failed to

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properly serve the District’s chief executive officer, which it contends is the governing

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board, because service on an individual board member is insufficient and the District

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does not have an individual designated pursuant to statute to receive service of process,

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an official secretary, a clerk, or a recording officer. Instead, Bacon-Dorow served the

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Summons and Complaint on Andi Mayer, Assistant to the Governing Board, who “told

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counsel that the school board did not have a clerk, but that she functioned as the secretary

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to the board and was the person tasked with receiving claims, process, and the like on

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behalf of the board.” (Doc. 12-1, Affidavit of Counsel.) Ms. Mayer was the de facto

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Secretary of the Governing Board, and the District received actual notice. Therefore, the

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service was sufficient.

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II.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

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The District contends that the Court lacks subject matter jurisdiction because the

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Complaint refers to EEOC charge number 846-2012-04893, instead of EEOC charge

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number 540-2012-02411, which is the charge of discrimination for which Bacon-Dorow

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has received a notice of right to sue from the EEOC. Bacon-Dorow concedes that a

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lawsuit regarding EEOC charge number 846-2012-04893 is premature. She seeks to

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amend her complaint to substitute EEOC charge number 540-2012-02411.

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III.

NOTICE OF CLAIM

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The District contends that the second count of the Complaint, a common law claim

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for conversion, is barred by Bacon-Dorow’s failure to comply with Arizona’s mandatory

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notice of claim statute, A.R.S. § 12-821.01. Bacon-Dorow concedes this point and seeks

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to withdraw this count in an amended complaint.

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IV.

LEAVE TO AMEND

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Although leave to amend should be freely given “when justice so requires,” Fed.

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R. Civ. P. 15(a)(2), “[l]eave to amend need not be given if a complaint, as amended, is

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subject to dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir.

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1989). “Futility of amendment can, by itself, justify the denial of a motion for leave to

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amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

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Rule 8(a)(2) requires “ a short and plain statement of the claim showing that the

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pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . .

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claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint

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does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds

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of his entitlement to relief requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not suffice. Id. “Threadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Both the Complaint and the proposed amended complaint allege that Bacon-

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Dorow suffers from a permanent physical disability of her back that substantially limits

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her major life activities. They allege that she worked for the District as an art teacher

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from January 1995 through May 2012 and underwent back surgery in June 2011. It is

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unclear whether she suffered from a permanent physical disability of her back before the

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surgery. When she returned to work on July 28, 2011, she requested an accommodation

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to work half-time. Neither the Complaint nor the proposed amended complaint explains

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why she could continue teaching, but only half-time. Nor do they explain how she could

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perform the essential functions of her full-time position while working only half-time. It

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is not sufficient to summarily allege “With the reasonable accommodation she

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requested[,] Plaintiff could perform the essential functions of the employment position

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that she held.”

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The Complaint and proposed amended complaint allege that on July 28, 2011, her

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request for accommodation was denied, but instead she was given a reduced class

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schedule.

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accumulated sick leave. The Complaint and the proposed amended complaint allege that

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she continued full-time employment with a reduced schedule. It is not clear whether the

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reduced schedule was different than half-time.

She was paid full-time, but required to use two hours per day of her

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On August 30, 2011, Bacon-Dorow was informed that her employment would be

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terminated, but she “prevailed upon Defendant not to immediately terminate her

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employment.” The Complaint and proposed amended complaint allege that instead of

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termination, she used sick leave, followed by leave under the Family Medical Leave Act

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and short-term disability through the end of the school year. Neither the Complaint nor

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the proposed amended complaint allege what she requested or was told about continuing

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employment after her one-year absence from teaching.

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Both the Complaint and the proposed amended complaint allege that on

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September 8, 2011, the District issued a letter to staff and parents disclosing Bacon-

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Dorow’s confidential medical information and falsely attributing to her an intent to resign
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her position for medical reasons.

Both the Complaint and the proposed amended

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complaint allege that on September 15, 2011, she discovered that the computer files

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containing teaching plans and other instructional materials she had developed through

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years of teaching were no longer accessible on the computer where they had been stored.

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At some unspecified date, Bacon-Dorow also learned that works of art and artifacts she

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had created and/or collected as instructional aids, lesson plans, projects, and samples had

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been destroyed or discarded.

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The Complaint alleged that on November 25, 2011 (stated as December 11, 2011,

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in the proposed amended complaint), Bacon-Dorow filed a charge of discrimination with

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the EEOC for disability discrimination by refusing to make a reasonable accommodation

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for her disability, terminating her employment because of her disability, and disclosing

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confidential medical information. The Complaint also alleged that on November 29,

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2012, she received a right to sue letter from the EEOC on this charge. However, she now

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concedes that the November 29, 2012 right to sue letter was related to her charge of

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discrimination based on retaliation, which she filed on June 15, 2012. Because the EEOC

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has not yet closed the first charge, Bacon-Dorow’s lawsuit on the first charge is

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premature.

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The proposed amended complaint alleges that on May 12, 2012, Bacon-Dorow

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learned that the District had given a permanent position to the teacher who had

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temporarily replaced her. It does not allege that Bacon-Dorow was able and willing to

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perform the full-time teaching position. On June 15, 2012, Bacon-Dorow filed a second

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charge of discrimination with the EEOC, this one claiming retaliation for filing the first

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charge.

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Thus, the theory of the proposed amended complaint is that in the summer of 2011

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Bacon-Dorow became unable to perform her full-time position, requested a half-time

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position, and was permitted to work a reduced schedule for a month. When she could not

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or would not perform her full-time position, she persuaded the District not to terminate

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her employment for a year. Instead, she used medical leave for the remainder of the
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school year, some or all of which was with pay.

In September 2011 the District

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communicated to staff and parents that she intended to resign her position for medical

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reasons and removed instructional materials she had created while employed by the

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District from the District’s classroom and its computer. In December 2011 she filed an

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EEOC charge, and in May 2012 the District did not renew her full-time teaching contract.

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The proposed amended complaint alleges that the District retaliated against her for filing

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the EEOC charge by terminating her employment, disclosing her confidential medical

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information, and destroying her teaching materials.

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However, Bacon-Dorow alleges that on August 30, 2011, before she filed the first

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EEOC charge, the District informed her that her employment would be terminated, and

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the disclosure and destruction also are alleged to have occurred before she filed the first

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EEOC charge. Under the facts alleged, none of these can be acts of retaliation for filing

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the EEOC charge. Therefore, amending the Complaint as Bacon-Dorow has proposed

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would be futile even though it corrects the EEOC charge number and withdraws the

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claim of conversion.

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IT IS THEREFORE ORDERED that Defendant Prescott Unified School District’s
Motion to Dismiss (Doc. 9) is granted.

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IT IS FURTHER ORDERED that Plaintiff Jalynn Bacon-Dorow’s Motion for

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Leave to Amend Complaint (Doc. 13) is denied without prejudice to filing a further

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amended complaint by November 22, 2013. If Plaintiff Jalynn Bacon-Dorow does not

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file a further amended complaint by November 22, 2013, the Clerk is directed to dismiss

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this case with prejudice.

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Dated this 30th day of October, 2013.

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