Robin G Brodie v. Board of Trustees of The California State University et al

Filing 18

ORDER by Judge Dean D. Pregerson: granting 14 defendants Motion to Dismiss. Plaintiffs claims against CSU are dismissed without prejudice. Of course, her claim against Hobson remains. (lc). Modified on 12/11/2012 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBIN G. BRODIE,

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Plaintiff,

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v.
BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY
(California Polytechnic
State University San Luis
Obispo, Performing Arts
Center San Luis Obispo, a
Cal Poly facility), TERRI
HOPSON,

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Defendants.
___________________________

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Case No. CV 12-07690 DDP (AGRx)
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS COMPLAINT
[docket number 14]

I. Background

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Plaintiff Robin G Brodie (“Plaintiff”) has sued the Board of

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Trustees of the California State University (“CSU”) and Terri

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Hopson (“Hopson”).

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42 U.S.C. § 1983 (“section 1983"), sex discrimination under section

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1983, and sexual orientation discrimination under unidentified law.

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(See generally Compl., Docket No. 1.)

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she has sued Hobson for sexual harassment.

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She has sued CSU for sexual harassment under

Pursuant to section 1983,

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Plaintiff worked at the Performing Arts Center San Luis

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Obispo, which is a California Polytechnic State University facility

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(“Cal Poly”).

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University, and Plaintiff was a CSU employee.

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was Plaintiff’s colleague, and she allegedly repeatedly hugged,

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stroked, and kissed Plaintiff, despite Plaintiff rebuffing her

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approaches.

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Hobson’s harassment for years, and her supervisor urged her on a

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number of occasions not to report the problem to the

(Id. ¶ 5.)

Cal Poly is a California State

(Id. ¶¶ 10-18.)

(Id. ¶ 6.)

Hobson

Plaintiff purportedly endured

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administration.

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harassment to the Human Resources Department, but the Human

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Resources investigator advised her not to file a formal written

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complaint.

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and kissed Plaintiff for the last time before she was put on

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administrative leave,” which Hobson never returned from.

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34-35, 38.)

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administrative complaints, and she admits that, “[i]t appears to be

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true that Plaintiff filed neither a complaint with the EEOC nor a

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complaint with FEHA.”

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to Dismiss Under Rule 12(b) (“Opp’n”) at 7:23-24, Docket No. 15.)

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(Id. ¶¶ 25-26.)

(Id. ¶¶ 29, 32.)

Plaintiff eventually reported the

On September 8, 2010, “Hobson hugged

(Id. ¶¶

Plaintiff does not purport to have filed any

(Plaintiff’s Response to Defendant’s Motion

Presently before the court is CSU’s Motion to Dismiss

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Complaint (“Motion”).

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lacks subject matter jurisdiction over Plaintiff’s claims against

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CSU.

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Authorities in Support of Motion to Dismiss Complaint, Docket No.

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14.)

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Amendment shields CSU from Plaintiff’s section 1983 claims.

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court lacks subject matter jurisdiction to adjudicate Plaintiff’s

(Docket No. 14. )

CSU argues that the court

(See generally Defendant’s Memorandum of Points and

The court agrees.

Sovereign immunity under the Eleventh

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The

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sexual orientation discrimination claim, regardless of whether it

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is brought under federal or state law.

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federal law, Title VII, Plaintiff has not exhausted administrative

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remedies, and thus cannot file suit in a federal district court.

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If it is brought under state law, Plaintiff has not attempted to

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argue that supplemental jurisdiction is proper, and thus failed to

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carry her burden to show that the court has subject matter

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jurisdiction.

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II. Legal Standard

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If it is brought under

Federal courts are courts of limited jurisdiction. Kokkonen v.

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Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).

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complaint must be dismissed if there is a "lack of jurisdiction

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over the subject matter." Fed. R. Civ. P. 12(b)(1).

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bears the burden of demonstrating that subject matter jurisdiction

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exists over the complaint when challenged under Rule 12(b)(1).

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Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499

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(9th Cir. 2001) (per curiam).

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court must show in his pleading, affirmatively and distinctly, the

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existence of whatever is essential to federal jurisdiction, and, if

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he does not do so, the court, on having the defect called to its

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attention or on discovering the same, must dismiss the case, unless

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the defect [can] be corrected by amendment.’” Id. (quoting Smith v.

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McCullough, 270 U.S. 456, 459 (1926)).

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III. Analysis

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The plaintiff

“‘A plaintiff suing in a federal

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A. Plaintiff’s Section 1983 Claims

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The Eleventh Amendment provides: “The Judicial power of the

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United States shall not be construed to extend to any suit in law

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or equity, commenced or prosecuted against one of the United States
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by Citizens of another State, or by Citizens or Subjects of any

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Foreign State.”

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interpreted the Eleventh Amendment as preventing suits by an

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individual against a state, whether or not the individual is a

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resident of that state.

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U.S. 44, 54 (1996).

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Amendment applies to § 1983 suits.

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345 (1979). Instrumentalities of the state also enjoy such

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immunity, and CSU is an instrumentality of the state. Jackson v.

U.S. Const. amend. XI.

The Supreme Court has

Seminole Tribe of Florida v. Florida, 517

Sovereign immunity under the Eleventh
Quern v. Jordan, 440 U.S. 332,

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Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982).

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therefore, protects CSU, and Plaintiff’s § 1983 claims against CSU

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fail as a result.

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Sovereign immunity,

See id.

Plaintiff, however, claims that CSU can be liable on an

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independent contractor theory.

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Plaintiff’s employer was CSU, but she worked at the Cohan Center,

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which according to the Cohan Center’s alleged operating agreement

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is “governed under the tenets of an operating agreement among the

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facility’s partners— Cal Poly, the City of San Luis Obispo, and the

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Foundation for the Performing Arts (FPAC).”

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Allegedly, The operating agreement “is directed by a Commision,”

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and “Cal Poly is a partner in the operating agreement, and . . .

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the independent contractor of the Commission for the administration

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of the Cohan Center.”

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requests discovery to prove, that Cal Poly is in her case an

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independent contractor, which she claims would prohibit CSU from

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claiming sovereign immunity.

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not determine whether Cal Poly was acting as an independent

Opp’n at 5:5-7:16, Docket No. 15).

(Id. at 6:1-4.)

(Id. at 5:24-6:4.0)

Plaintiff asserts, and

(Id. at 6:4-7:16.)

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The court need

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contractor, though, because sovereign immunity shields it from

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liability either way.

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The Ninth Circuit has suggested that sometimes a state or

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state instrumentality may be considered an independent contractor.

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See Thorne v. United States, 479 F.2d 804, 807 (9th Cir. 1973).

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However, nothing suggests that such a status abrogates sovereign

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immunity.

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v. United States.

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Torts Claims Act, which, unlike section 1983 claims, “waive[s

The only case Plaintiff cites to the contrary is Thorne
Id.

That case, however, involved the Federal

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sovereign] immunity to the extent of the provisions of the Act.”

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Id.

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sovereign immunity analysis of a section 1983 cases.

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however, involve a non-state entity that was working for a state as

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an independent contractor.

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F.3d 1070 (9th Cir. 2008) (finding that a private corporation that

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ran a “bad check diversion program” for Santa Clara County’s

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District Attorney, who the court assumed to be working in a state

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government capacity,

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receive sovereign immunity protection).

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different, because an instrumentality of the state is alleged to be

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the independent contractor.

Sometimes being an independent contractor matters in the

See e.g.

Those cases,

Del Campo v. Kennedy, 517

was an independent contractor, and did not
The instant case is

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B. Plaintiff’s Sexual Orientation Claim

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CSU claims that the court lacks subject matter jurisdiction

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over Plaintiff’s third and final claim, sexual orientation

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discrimination.

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Authorities in Support of Motion to Dismiss Complaint at 6:6-9:11,

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Docket No 14-1.)

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this claim is brought under California’s Fair Employment and

(Defendant CSU’s Memorandum of Points and

CSU correctly notes that it is ambiguous whether

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Housing Act (“FEHA”) or Title VII.

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brought under the former, CSU argues the lacks subject matter

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jurisdiction if it dismisses the federal claims against CSU.

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at 8:12-9:11.)

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barred because Plaintiff has not exhausted her administrative

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remedies.

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(Id. at 6:9-12.)

If it is

(Id.

If the claim is brought under the latter, it is

(Id. at 6:15-8:11.)

Each will be discussed in turn.

Plaintiff has the burden of proving subject matter

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jurisdiction.

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Cir. 2009).

Robinson v. United States, 586 F.3d 683, 685 (9th

Plaintiff states that she “should be allowed to

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proceed under” Title VII, but she is silent about any state law

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claim.

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about exhausting administrative remedies under Title VII, but does

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not discuss any state claims, nor does she address CSU’s argument

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that the court would be unable to exercise supplemental

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jurisdiction over a state law claim, if her section 1983 claims

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were dismissed.

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Plaintiff intended to plead a state law claim.

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56-65.

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because neither her brief nor her complaint mention a state law

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claim, the court dismisses this claim (if it was pled in the first

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place) against CSU.

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alleging a state law claim for sexual orientation discrimination,

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supplemental jurisdiction would likely be appropriate, since

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Plaintiff’s section 1983 claim for sexual harassment against Hobson

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has not been dismissed.

(Opp’n at 7:21).

She extensively discusses CSU’s argument

(Opp’n at 7:19-9:27).

It is unclear whether
(See Compl. at ¶¶

Because she bears the burden of proving subject matter, and

Should Plaintiff file an amended complaint

See 28 U.S.C. § 1367.1

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Of course, Plaintiff should note that exhausting administrative remedies
is required under FEHA.. Cal. Gov. Code § 12960; Blum v. Superior Court, 141
Cal. App. 4th 418, 422, 45 Cal. Rptr. 3d 902, 904 (2006) (quoting Medix

(continued...)
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Plaintiff’s brief indicates that she wishes to pursue a Title

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VII claim for sexual orientation discrimination.

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“In order to bring a Title VII claim in district court, a plaintiff

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must first exhaust her administrative remedies.”

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United States, 255 F.3d 704, 708 (9th Cir. 2001) (citing 42 U.S.C.

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§ 2000e-16(c)).

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administrative complaint with the EEOC is not a jurisdictional

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prerequisite,” the Ninth Circuit has held “that substantial

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compliance with the presentment of discrimination complaints to an

(Opp’n 7:21-22.)

Sommatino v.

Although failure to file a “timely EEOC

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appropriate administrative agency is a jurisdictional

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prerequisite.”

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Inc., 455 U.S. 385, 393 (1982)).

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Id. at 708 (citing Zipes v. Trans World Airlines,

Plaintiff admits that “it appears” she did not file an

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administrative complaint.

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that this failure should be excused for two reasons.

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argues that her failure to file an administrative complaint should

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be excused, because she was unaware that such a filing was

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required, and her supervisor and the Department of Human Resources

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instructed her not to file a written complaint.

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“Strict compliance with the filing period may be excused if the

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plaintiff had neither official notice nor actual knowledge of the

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filing period.”

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Cir. 1989) (per curiam) (internal quotation marks omitted).

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Equitable estoppel and equitable tolling are available for filing

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with the appropriate administrative agency, but these “equitable

(Opp’n at 7:23-24.)

She argues, though,
First, she

(Opp’n at 8:4-19.)

Thornhill v. Marsh, 866 F.2d 1182, 1184-85 (9th

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(...continued)

Ambulance Service, Inc. v. Superior Court 97 Cal.App.4th 109, 116 (2002)).

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remedies are unavailable” in district court when the plaintiff has

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failed to make any administrative filing.

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710.

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indicate that her excuse might justify permitting her to file a

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late administrative complaint, not that she may be excused from

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filing a complaint at all.

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at 1184-85; Cooper v. Bell, 628 F.2d 1208, 1211-14 (9th Cir. 1980).

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This court lacks subject matter jurisdiction over a Title VII

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claim, because Plaintiff has not filed an administrative complaint.

Sommatino, 255 F.3d at

The Ninth Circuit cases that Plaintiff relies on only

(Opp’n at 8:7-15);

Thornhill, 866 F.2d

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Sommatino, 255 F.3d at 710-11;

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Postal Service, 696 F.2d 720, 722 (9th Cir.1983) (“When there is a

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failure to exhaust because of lack of notice, the complainant may

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still file an untimely charge and allow the agency to decide

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whether the lack of notice excuses the untimeliness. In this way,

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administrative remedies may still be exhausted.”)

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See also Ross v. United States

Second, she claims that complaining to her supervisor about

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Hobson’s actions meets the requirement that she exhaust all

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administrative remedies.

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courts have adopted Plaintiff’s argument, see e.g. Lloyd v. Chao,

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240 F.Supp.2d 1, 4 (D.D.C. 2002), the Ninth Circuit has rejected

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it: “there is no basis in law to suggest that an employee's

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complaints to her supervisors satisfy the requirement that the

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aggrieved employee seek EEO counseling prior to filing a formal

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complaint or suing in court.

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415 (9th Cir. 2002).

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///

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(Opp’n at 8:20-9:27.)

Although some

Johnson v. Henderson, 314 F.3d 409,

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IV. Conclusion
For the reasons discussed, Plaintiff’s claims against CSU are

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dismissed without prejudice. Of course, her claim against Hobson

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remains.

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IT IS SO ORDERED.

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Dated: December 11, 2012
DEAN D. PREGERSON
United States District Judge

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