Eaglesmith et al v. Ray et al

Filing 50

ORDER signed by Judge John A. Mendez on 10/05/11 ORDERING that dfts' 34 Motion to Dismiss is GRANTED IN PART and DENIED IN PART as follows: the first claim for relief is DENIED; the second claim for relief is DENIED; the third claim for relief is DENIED; the Title VII claim within the fourth claim for relief is GRANTED; the Title VII claim within the fourth claim for relief is DISMISSED WITH PREJUDICE; the FEHA claim within the fourth claim for relief is DENIED; the fifth claim for relief is DENIED; the Equal Protection claim within the sixth claim for relief is DENIED; the First Amendment claim within the sixth claim for relief is GRANTED; the First Amendment discrimination claim within the sixth claim for relief is DISMISSED WITH P REJUDICE; the seventh claim for relief is GRANTED; the seventh claim for relief is DISMISSED, WITH LEAVE TO AMEND; the eighth claim for relief is GRANTED; the eighth claim for relief is DISMISSED, WITH LEAVE TO AMEND. The 31 Motion to Strike is DE NIED. Plaintiffs are ordered to file a Second Amended Complaint w/i 21 days; the allegations regarding J.C.'s alleged "medical condition" should not be included in the Second Amended Complaint, as plfs' opposition brief did not oppose their dismissal and did not respond to any of dfts' arguments concerning the dismissal of these allegations. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERALD CLINTON (J.C.)
EAGLESMITH, RAMONA EAGLESMITH,
EILEEN COX, and BRUCE BARNES,

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Plaintiffs,
v.
JEFF RAY, as an individual, SUE
SEGURA, as an individual, and
BOARD OF TRUSTEES OF PLUMAS
COUNTY OFFICE OF
EDUCATION/PLUMAS COUNTY UNIFIED
SCHOOL DISTRICT,
Defendants.

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Case No. 2:11-CV-00098 JAM-JFM
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS‟
MOTION TO DISMISS AND MOTION
TO STRIKE

This matter is before the Court on Defendants‟ Jeff Ray

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(“Ray”), Sue Segura (“Segura”) and Board of Trustees of Plumas

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County Office of Education/Plumas County Unified School District

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(“the District”) Motion to Dismiss the Plaintiffs‟ Jerald Clinton

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Eaglesmith (“J.C.”), Ramona Eaglesmith (“Ramona”), Eileen Cox

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(“Cox”) and Bruce Barnes (“Barnes”) First Amended Complaint (“FAC”)

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(Doc. # 28) for failure to state a claim pursuant to Federal Rule

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of Civil Procedure 12(b)(6).

Plaintiffs oppose the motion to

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dismiss.1

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GRANTED in part, and DENIED in part.

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For the reasons set forth below, Defendants‟ motion is

Defendants also bring a Motion to Strike (Doc. #31) certain

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allegations from the FAC, which Plaintiffs oppose (Doc. #42).

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For

the reasons set forth below, the motion to strike is DENIED.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

J.C. is an employee of the District, who works as a teacher
and previously worked as the coach for the Quincy High School

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basketball team.

J.C. alleges that he was subjected to

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discrimination, harassment and retaliation by Defendants in

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violation of Title VII, FEHA and Section 1983, based on his

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membership in a protected class.

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wife Ramona, who is Native American and African American, is not an

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employee of the District but alleges that Defendants violated her

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rights under sections 1981 and 1983, by interfering with her

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provision of dance lessons to members of the school cheerleading

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team.

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retaliation in violation of Title VII and FEHA, for communicating

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their support of J.C. and Ramona.

J.C. is Native American.

His

Cox and Barnes are employees of the District, who allege

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The FAC brings a number of allegations against Defendants.

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The FAC alleges that Defendants singled out J.C. for harassment

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after he and Ramona did a presentation in 2006 at the school,

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discussing the Native American perspective on Thanksgiving.

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alleges that Defendants interfered with his coaching, ostracized

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him, questioned his spiritual beliefs, referred to him in

J.C.

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This matter was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). Oral argument was originally
scheduled for August 3, 2011.
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derogatory terms in front of his colleagues, gave him an

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“unsatisfactory” performance evaluation, and refused to rehire him

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as the basketball coach for the 2010-2011 school year.

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further alleges that Cox and Barnes were threatened with discipline

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and forced out of some of the positions they held at the school,

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for communicating support of J.C. and Ramona.

The FAC

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II.
A.

OPINION

Legal Standard

A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

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all reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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are not entitled to the assumption of truth.

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129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007)).

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plaintiff needs to plead “enough facts to state a claim to relief

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that is plausible on its face.”

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Dismissal is appropriate where the plaintiff fails to state a claim

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supportable by a cognizable legal theory.

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Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to dismiss, the

Scheuer v.

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to dismiss, a

Twombly, 550 U.S. at 570.

Balistreri v. Pacifica

Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).
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“Absent prejudice, or a strong showing of any [other relevant]

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factor[], there exists a presumption under Rule 15(a) in favor of

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granting leave to amend.”

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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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prejudice and without leave to amend is not appropriate unless it

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is clear . . . that the complaint could not be saved by amendment.”

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Id.

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B.

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Eminence Capital, L.L.C. v. Aspeon,
“Dismissal with

Claims for Relief
1.

Discriminatory Employment Practices

The first claim for relief alleges that J.C., Cox and Barnes

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were subject to adverse and discriminatory employment practices

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committed against them by the District, in violation of Title VII,

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42 U.S.C. § 2000e and e(2), and FEHA, Cal. Gov. Code § 12940(a).

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JC alleges that he was discriminated against based on his race,

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national origin and religion, and his opposition to the District‟s

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alleged unlawful employment practices, under Title VII, 42 U.S.C.

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§ 2000e(2).

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protected status as non-minorities perceived to be assisting and

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associating with J.C., under Title VII, 42 U.S.C. § 2000(e) et seq.

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and Cal. Gov. Code § 12940.

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dismiss J.C.‟s allegations in the first claim for relief, but does

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seek to dismiss the allegations of discrimination by Cox and

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Barnes.

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Cox and Barnes allege discrimination based on their

The Motion to Dismiss does not seek to

Title VII of the Civil Rights Act of 1964 makes it “an

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unlawful employment practice for an employer . . . to discriminate

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against any individual with respect to his compensation, terms,

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conditions, or privileges of employment, because of such

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individual‟s race, color, religion, sex, or national origin.”
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U.S.C. § 2000e-2(a)(1).

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framework.

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However, an employment discrimination complaint need not contain

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specific facts establishing a prima facie case, but instead must

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contain only a short and plain statement of the claim showing that

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the pleader is entitled to relief.

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3749260, * 5 (E.D. Cal. Sept. 23, 2010) (citing Swierkiewicz v.

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Sorema N.A., 534 U.S. 506, 508 (2002).

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overturn Swierkiewicz‟s holding.

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Title VII claims follow a burden shifting

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972).

Morgan v. Napolitano, 2010 WL

Twombly explicitly did not

Id.,citing Twombly, 550 U.S. at

569-70.

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FEHA prohibits employers from discriminating against an

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employee because of race, religious creed, color, national origin,

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ancestry, physical disability, mental disability, medical

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condition, marital status, sex, age or sexual orientation.

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Gov. Code § 12940(a).

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Title VII may be assessed under the same standards, because Title

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VII and FEHA operate under the same guiding principles.

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Inter-Tel Technologies, 244 F.3d 1167, 1172-73 (9th Cir. 2001)

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(citations omitted).

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some particulars from the wording of FEHA, the antidiscriminatory

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objectives and overriding policy purposes of the two acts are

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identical.”

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courts often rely upon federal interpretations of Title VII when

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analyzing analogous provisions of FEHA.”

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University of CA, 2005 WL 1984473, *4 (E.D. Cal. Aug. 15, 2005)

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(citations omitted).

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plaintiff‟s federal and state claims under federal law.

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Id.; Nagar v. Foundation Health Systems, Inc., 57 Fed. Appx. 304,

Id.

Cal.

Claims of discrimination under FEHA and

Kohler v.

“Although the wording of Title VII differs in

“Because FEHA is modeled on Title VII, California

Solano v. Regents of

Accordingly, federal courts may analyze a

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See e.g.

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306 (9th Cir. 2003).

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FEHA expressly provides a cause of action for unlawful

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discrimination based on association with someone in a protected

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class.

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(N.D. Cal. Feb. 12, 2003) (citing Cal. Gov. Code 12926(m)).

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VII, unlike, FEHA, does not specifically delineate a cause of

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action for unlawful discrimination based on association.

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“Nonetheless, many federal courts have construed Title VII to

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protect individuals who are the victims of discriminatory animus

Kap-Cheong v. Korea Express, USA, Inc., 2003 WL 946103, *3

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towards third parties with whom the individual associates.”

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Title

*4.

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Id. at

The FAC alleges that the District discriminated against Cox

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and Barnes by taking adverse employment actions against them

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(including eliminating work space, disciplinary investigations,

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false accusations, forced resignation or removal from certain paid

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positions) and depriving them of rights under the Equal Protection

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Clause.

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“assisting and associating” with J.C. and that they “communicated

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their support of J.C.” to defendant Segura.

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that they are members of a protected class, but the Court may infer

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from the allegations that they are stating a discrimination claim

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based on association.

Cox and Barnes allege that the District perceived them as

They do not allege

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The District argues that Cox and Barnes have not stated a

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claim for discrimination under Title VII or FEHA because they fail

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to plead that they are members of a protected class, and fail to

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plead facts showing that they assisted or associated with J.C.

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Moreover, the District argues that the FAC does not allege any

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special relationship, or even acquaintance relationship, between
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Cox and Barnes and J.C. that would form the basis of a claim for

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discrimination on the basis of association.

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While courts have found that a plaintiff who is not a member

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of a protected class may state a claim for discrimination under

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FEHA or Title VII, “there must be some association, actual or

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perceived, in order to fall within the protection of Title VII or

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FEHA.

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type of relationship-personal, familial, or otherwise-between the

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plaintiff and the person whom the plaintiff claims was the target

In each of the above Title VII cases, there existed some

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of the employer‟s discriminatory animus.”

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946103 at *4 (citing cases, each of which involve relationships

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such as parent-child and husband-wife).

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or acquaintance relationship is sufficient to state a claim for

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association discrimination under FEHA.

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Red Cross, 2008 WL 449862, *4-7 (N.D. Cal. Feb. 15, 2008).

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Kap-Cheong, 2003 WL

However, even a friendship

See Setencich v. American

Here, Cox and Barnes allege that they communicated their

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support for J.C., and were perceived as supporting him.

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are correct that the FAC lacks allegations of a special

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relationship to J.C. and lacks allegations of how Cox and Barnes

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communicated their support for J.C.

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allegations of support for J.C. in the FAC as true, and drawing all

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reasonable inferences, as this Court is required to do at this

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stage in the pleadings, it can be inferred that as J.C.‟s coworkers

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Cox and Barnes at a minimum had an acquaintance relationship with

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him.

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is DENIED.

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Defendants

However, taking the

Accordingly, the motion to dismiss the first claim for relief

2.

Retaliation

The second claim for relief alleges that the District
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retaliated against J.C., Cox and Barns, in violation of FEHA and

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Title VII.

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allegations of retaliation brought by J.C., but does seek to

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dismiss the allegations of retaliation brought by Cox and Barnes.

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The District raises the same arguments against the claim for

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retaliation as it does against the claim for discrimination

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discussed above.

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arguments in support of their claim for retaliation as in support

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of their claim for discrimination.

Again, the District does not seek to dismiss the

Likewise, Cox and Barnes also offer the same

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Cox and Barnes allege that the District‟s supervisory

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employees, including defendants Segura and Ray, unlawfully

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retaliated against them by taking actions that adversely and

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materially affected the terms and conditions of their employment.

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Cox and Barnes allege that they were retaliated against because

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they opposed the supervisors‟ unlawful employment practices and

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were perceived as assisting and associating with J.C. and Ramona.

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They argue that because J.C. was making complaints about

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discrimination, and communicating his opposition to what he alleged

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were adverse actions taken against him because of his race and

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religion, communication of their support for J.C. and the

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subsequent adverse consequences constitutes a plausible claim for

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retaliation.

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The District argues that the FAC is insufficient because it

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merely states that Cox and Barnes “communicated” their support for

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J.C., but does not plead facts showing that Cox and Barnes actively

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engaged in opposing alleged unlawful employment practices or

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otherwise put the District on notice of its alleged unlawful

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practices.
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FEHA makes it unlawful for an employer to discharge, expel or

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otherwise discriminate against any person because the person has

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opposed any practices forbidden by FEHA or has filed a complaint,

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testified or assisted in any proceeding.

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§ 12940(h).

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of a supervisor such opposition is also protected activity.”

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v. Valley Elec. Ass‟n, 41 F.3d 524, 526 (9th Cir. 1994).

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employment action qualifies as adverse “if it is reasonably likely

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to deter employees from engaging in protected activity.”

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See Cal. Gov. Code

Additionally, “when an employee protests the actions
Trent

An

Ray v.

Henderson, 217 F.3d 1243 (9th Cir. 2000).
In Yanowitz v. L‟Oreal USA, Inc., 36 Cal.4th 1028 (2005) the

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court explained that FEHA protects an employee against unlawful

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discrimination with respect not only to ultimate employment actions

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such as termination or demotion, but also to the entire spectrum of

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employment actions that are reasonably likely to materially affect

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an employee‟s job performance or opportunity for advancement in his

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or her career.

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requirement that an employer‟s retaliatory acts constitute one

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swift blow, rather than a series of subtle, yet damaging injuries.”

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Id. at 1055.

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adverse employment action, “it is appropriate to consider

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plaintiff‟s allegations collectively under the totality-of-the

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circumstances approach.”

See Id. at 1053-54.

Further, “there is no

In determining whether a plaintiff has suffered an

Id. at 1052 n. 11.

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Here, the FAC has alleged that J.C. made complaints and

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actively opposed the District‟s actions against him, and suffered

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retaliation for his actions.

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Barnes supported J.C. and communicated this support to Segura and

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Ray, resulting in retaliatory acts against them.

The FAC further alleges that Cox and

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Whether Cox‟ and

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Barnes‟ particular manner of communicating support constituted a

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protected activity is a factual issue that the Court will not

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consider in ruling on a motion to dismiss.

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of the FAC as true, as the Court must at this early stage in the

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pleadings, Cox and Barnes have brought sufficient allegations to

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state a claim for retaliation under FEHA and Title VII.

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Accordingly, the motion to dismiss the second claim for relief is

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DENIED.

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Taking the allegations

3. Harassment and Hostile Work Environment
The third claim for relief brings a claim of harassment and

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hostile work environment under Title VII, 42 U.S.C. § 2000(e), and

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FEHA, Cal. Gov. Code § 12940(j).

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the District, for alleged harassment based on his race and

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religion.

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J.C. brings this claim against

The elements of a hostile work environment are: (1) plaintiff

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was subjected to verbal or physical conduct because of his race;

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(2) the conduct was unwelcome; and (3) the conduct was sufficiently

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severe or pervasive to alter the conditions of plaintiff‟s

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employment and create an abusive working environment.

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City of Sacramento, 2006 WL 224436, *3 (E.D. Cal. Jan. 30, 2006),

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(citing Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir.

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2003)).

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Irish v.

The FAC alleges that J.C. was initially harassed by Ray during

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the period from 2004-2007, while J.C. served as Head Coach of the

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basketball team.

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following J.C.‟s school presentation on the Native American

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perspective of Thanksgiving, questioned him about his religious

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belief, and expressed disapproval that J.C. followed Native

The FAC alleges that Ray confronted J.C.

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American spiritual traditions as opposed to believing in Jesus or

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the Christian god.

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insubordination against J.C., and encouraged parents to complain

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about, among other things, J.C. telling “Indian stories” on or

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during team practice, and excluded J.C. from use of a facility used

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by the other athletic staff.

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despite knowing of Ray‟s harassment, Segura hired him to be the

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athletic director and supervise J.C.

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numerous other incidences of racially motivated harassment of J.C.,

The FAC also alleges that Ray encourage

The FAC further alleges that in 2009,

Additionally, the FAC alleges

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including allowing another employee to repeatedly park a truck

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adorned with a noose and racist bumper stickers containing

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threatening statements towards people of color, adjacent to J.C.‟s

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classroom.

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Defendants contend that the allegations in the FAC amount to

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merely personnel management actions, and do not show severe or

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pervasive harassment or a hostile work environment.

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further argue that the FAC does not show that harassment was

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motivated by J.C.‟s race or religion.

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that all allegations that fall outside the statute of limitations

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should be dismissed.

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motion to strike.

Defendants

Lastly, Defendants argue

This argument is further discussed in the

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The cases cited by Defendants in support of the motion to

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dismiss are primarily summary judgment cases, which are subject to

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different standards of review than motions to dismiss.

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stage in the pleadings, the numerous allegations brought by J.C.

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are sufficient to state a claim of harassment and hostile work

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environment, taking the allegations as true and drawing all

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reasonable inferences in favor of the plaintiffs.
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At this

Further, under

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the continuing violations theory discussed below for the motion to

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strike, allegations that fall outside the statute of limitations

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may still be included in a claim.

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Dismiss the third claim for relief is DENIED.

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4.

Accordingly, the Motion to

Harassment and Hostile Work Environment

In the fourth claim for relief, J.C. brings a claim of

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harassment and hostile work environment under Title VII, 42 U.S.C.

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§ 2000e, and FEHA, Cal. Gov. Code § 12940, against Ray and Segura.

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In his opposition, he concedes that he cannot bring a claim against

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Ray and Segura under Title VII.

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fourth claim for relief alleging a violation of Title VII is

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DISMISSED, WITH PREJUDICE.

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Accordingly, the portion of the

Defendants argue that the FEHA claim should also be dismissed

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against Ray and Segura because the FAC fails to plead sufficient

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facts showing “severe or pervasive” harassment.

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that the FAC alleges only actions that amount to personnel

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management decisions, not acts of harassment.

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the FAC contains numerous allegations regarding Ray‟s harassment

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and hostility towards J.C.

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other things, Segura supported and encouraged Ray‟s acts of

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discrimination, assigned J.C. alone to use a custodian‟s storage

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closet and a small toilet room instead of the Coaches Commons,

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barred J.C.‟s son from the athletic areas, and singled out J.C. for

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a performance evaluation.

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Defendants argue

As discussed above,

The FAC further alleges that, among

As discussed above, the allegations in the FAC are sufficient

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to state a claim for harassment and hostile work environment

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against Ray and Segura, in violation of FEHA.

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motion to dismiss the FEHA allegations of the fourth claim for
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Accordingly, the

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relief is DENIED.

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5.

4

Failure To Prevent Discrimination, Retaliation,
Harassment and Hostile Work Environment

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The fifth claim for relief alleges that the District failed to

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prevent discrimination, retaliation or harassment against J.C., Cox

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and Barnes, in violation of FEHA, section 12940(k).

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12940(k) requires employers to take all reasonable steps necessary

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to prevent discrimination and harassment from occurring.

Section

To state

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a claim for failure to prevent under 12940(k), a plaintiff must

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allege that (1) plaintiff was subjected to discrimination,

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harassment or retaliation, (2) defendant failed to take all

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reasonable steps necessary to prevent discrimination, harassment or

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retaliation, and (3) this failure caused plaintiff to suffer

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injury, damage, loss or harm.

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Francisco, 576 F.Supp.2d 1079, 1103 (N.D. Cal. 2008).

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Lelaind v. City and County of San

The FAC alleges that the District failed to take all

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reasonable steps necessary to prevent discrimination, retaliation

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and harassment.

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allegations pertaining to what investigatory steps the District did

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or did not take, or what anti-discrimination policies were or were

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not in place.

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J.C. filed grievances, which were denied.

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the FAC contains allegations that the District ignored the

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discrimination that was occurring towards J.C., Cox and Barnes,

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ignored complaints brought by J.C. and his union representative

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concerning conduct by Segura and Ray, encouraged and authorized

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Segura and Ray‟s conduct, and refused to reverse disciplinary

The District argues that the FAC is devoid of

The District contends that the FAC only alleges that

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Plaintiffs argue that

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actions taken against J.C. regarding dress, despite acknowledging

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that there was no dress code in effect.

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The District relies on California Fair Employment and Housing

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Com‟n v. Gemini, 122 Cal.App.4th 1003 (2004) to argue that in order

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to show failure to prevent, Plaintiffs must allege failure to

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investigate and lack of a nondiscrimination policy.

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Gemini is not persuasive as it dealt with a petition for mandate

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and assessed whether sufficient evidence existed to support a

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decision reached by the Fair Housing and Employment Commission.

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While it gave examples of what an employer might do to prevent

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workplace discrimination, it did not address pleading requirements

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to state a claim for failure to prevent discrimination and

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harassment.

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state a claim at this early stage that the District failed to

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prevent discrimination, harassment and retaliation against J.C.,

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Cox and Barnes.

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for relief is DENIED.

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6.

However,

Here, the allegations in the FAC are sufficient to

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Accordingly, the motion to dismiss the fifth claim

42 U.S.C. § 1983, Violation of Equal Protection and
First Amendment Rights

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The sixth claim for relief alleges that Ray and Segura

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violated J.C.‟s equal protection and First Amendment rights, in

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violation 42 U.S.C. § 1983 by discriminating against him through

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their conduct during the 2009-2010 school year, due to his race,

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color, national origin, religion and public expressions concerning

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matters of public concern.

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directed at J.C. while he was Head Coach of the basketball program,

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and materially and adversely affected the terms and condition of

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his employment.

The FAC alleges that this conduct was

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To prevail in a §1983 civil action against state actors for

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the deprivation of “rights, privileges, or immunities secured by

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the Constitution and laws, a plaintiff must show that (1) acts by

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the defendants (2) under color of state law (3) deprived him of

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federal rights, privileges or immunities and (4) caused him damage.

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Section 1983 is not itself a source of substantive rights, but

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merely provides a method for vindicating federal rights elsewhere

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conferred.

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deprived the plaintiff of some right, privilege or immunity

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protected by the Constitution or laws of the United States.”

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Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir.

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2005) (internal citations omitted).

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Accordingly, the conduct complained of must have

The “Equal Protection Clause of the Fourteenth Amendment

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commands that no State shall „deny to any person within its

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jurisdiction the equal protection of the laws,‟ which is

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essentially a direction that all persons similarly situated should

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be treated alike.”

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473 U.S. 432, 439 (1985) (internal citations omitted).

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claim under 42 U.S.C. § 1983 for a violation of the Equal

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Protection Clause of the Fourteenth Amendment, a plaintiff “must

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show that the defendant acted with an intent or purpose to

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discriminate against the plaintiff based upon membership in a

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protected class.”

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Sch. Dist., 2009 WL 1748793, at *8 (E.D. Cal. Jan. 18, 2009).

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plaintiff may satisfy this showing by alleging four separate

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elements: (1) that the defendants treated plaintiff differently

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from others similarly situated; (2) this unequal treatment was

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based on an impermissible classification; (3) the defendants acted

City of Cleburne v. Cleburne Living Ctr, Inc.
To state a

T.A. ex rel. Amador v. McSwain Union Elementary

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A

1

with discriminatory intent in applying this classification; and

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(4) plaintiff suffered injury as a result of the discriminatory

3

classification.

4

Id.

The FAC alleges that J.C. was treated differently by Ray and

5

Segura from other similarly situated non-minority coaches and

6

teaching staff, due to his race, color and religious beliefs.

7

FAC alleges that Ray and Segura‟s conduct was intentionally

8

discriminatory, and that J.C. suffered injury from the

9

discrimination.

10

The

Taking the allegations of the FAC as true, as the Court must

11

at this stage of the litigation, J.C. has stated a claim under

12

Section 1983 for violation of his equal protection rights.

13

Defendants further argue that Ray and Segura cannot be held

14

liable under Section 1983 for violating Title VII.

15

section 1983 claim is based not on Title VII, but on violation of

16

the Equal Protection clause and the First Amendment.

17

dismiss and reply brief contain only a cursory argument in

18

opposition to the equal protection and first amendment allegations,

19

arguing that the FAC fails to state a claim and that Ray and Segura

20

are entitled to qualified immunity.

21

However, the

The motion to

The doctrine of qualified immunity shields public officials

22

sued in their individual capacity from monetary damages, unless

23

their conduct violates “clearly established” law of which a

24

reasonable public officer would have known.

25

U.S. 194, 199 (2001).

26

Saucier v. Katz, 533

The court must make a two-step inquiry in deciding the issue

27

of qualified immunity.

Saucier, 533 U.S. at 200.

28

must determine whether, under the facts alleged, taken in the light
16

First, the court

1

most favorable to the plaintiff, a violation of a constitutional

2

right occurred.

3

constitutional right was clearly established at the time of the

4

violation. Id.

5

Id.

If so, the court must then ask whether the

Initially, the Supreme Court in Saucier held that these two

6

inquiries must be decided in rigid order. Saucier, 533 U.S. at 200.

7

That is, a district court had to resolve whether a violation of a

8

constitutional right occurred before it could evaluate whether the

9

right was clearly established.

Recognizing, however, that “there

10

are cases in which it is plain that a constitutional right is not

11

clearly established but far from obvious whether in fact there is

12

such a right,” the Supreme Court recently relaxed the order of

13

analysis.

14

Pearson, the Court held that the Saucier analysis may be addressed

15

in either order if the second step is clearly dispositive and can

16

address the matter efficiently.

17

other affirmative defenses may be upheld on a motion to dismiss

18

only when they are established on the face of the complaint.”

19

ex rel. Amador, 2009 WL 1748793 at *5.

20

Pearson v. Callahan, 555 U.S. 223, 237 (2009).

In

Id. at 241-42. “Immunities and

T.A.

It is not clearly established on the face of the FAC that Ray

21

and Segura are entitled to qualified immunity.

22

claim for violation of his equal protection rights, and a

23

reasonable school official would have known that it is a

24

constitutional violation to treat the employees he or she

25

supervises differently on the basis of race.

26

facts before it at this time, the Court does not find Ray and

27

Segura are entitled to qualified immunity, and the motion to

28

dismiss the equal protection allegations of the sixth claim for
17

J.C. has stated a

Thus with the limited

1
2

relief is DENIED.
Both parties analyze the sixth claim for relief

3

(discrimination in violation of the First Amendment) and the eighth

4

claim for relief (retaliation in violation of the First Amendment)

5

together, without distinguishing between the two claims.

6

the allegations of the FAC, and the parties arguments (all of which

7

cite cases dealing addressing First Amendment retaliation) the

8

Court finds that the claims are redundant.

9

that Ray and Segura discriminated against J.C. in retaliation for

Reviewing

The sixth claim alleges

10

exercising his First Amendment rights, and the eighth claim alleges

11

that Ray and Segura directed retaliatory actions (the

12

aforementioned discrimination) towards J.C. after he exercised his

13

First Amendment rights.

14

allegations that Ray and Segura directed actions towards J.C.‟s

15

wife and son to further retaliate against J.C. for exercising his

16

First Amendment rights.

17

allegations in the sixth claim for relief are dismissed, with

18

prejudice.

19
20
21

7.

The eighth claim also contains additional

Accordingly, the First Amendment

42 U.S.C. § 1983, 42 U.S.C. § 1981, Denial of Equal
Protection, First Amendment and Contract Rights

The seventh claim for relief alleges that Ramona was denied

22

her Equal Protection rights and her First Amendment right of

23

association under 42 U.S.C. § 1983, and denied her right to make

24

and enforce contracts under 42 U.S.C. § 1981.

25

claim against Segura, alleging that Segura intentionally and

26

recklessly discriminated against her because of her race, color,

27

national origin, and relationship with J.C., with the purpose and

28

effect of causing her emotional and economic injury.
18

Ramona brings this

1

The FAC alleges that Ramona was a choreographer and coach of

2

the high school dance team, and the student cheerleaders were

3

taking and intending to take private dance lessons from Ramona.

4

Segura is alleged to have discontinued Ramona‟s participation as a

5

choreographer and coach of the dance team, and threatened to

6

disqualify any cheerleader who took private lessons from Ramona.

7

Defendants argue that the FAC does not allege that Ramona was

8

an employee of the District, nor that any cheerleaders actually

9

refrained from taking private lessons from Ramona.

Accordingly,

10

Defendants contend that Ramona has failed to show any injury, and

11

without injury, she lacks standing and fails to state a claim.

12

Defendants argue that Ramona cannot assert the rights of a third

13

party (the cheerleaders) without alleging that the cheerleaders are

14

unable to assert their own rights.

15

the FAC fails to allege the existence of any contractual

16

relationship between Ramona and anyone else, fails to show how

17

Segura was acting under color of law in any of her alleged conduct

18

towards Ramona.

19

Defendants further contend that

Ramona argues that she is not attempting to assert third party

20

standing, rather she herself suffered from discrimination and is

21

the only who can bring this claim.

22

only when (1) a plaintiff suffers a concrete, particularized injury

23

which actual or imminent; (2) there is a causal connection between

24

the injury and the conduct complained of; and (3) the injury will

25

likely be redressed by a favorable decision.

26

Police Dept., 1998 WL 774630, *3 (N.D. Cal. Oct. 30, 1998) (citing

27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)).

28

has pled that she was emotionally and economically injured by
19

Article III standing is present

Falcon v. Richmond

Here, Ramona

1

Segura‟s actions in discontinuing Ramona‟s participation as a dance

2

team choreographer and coach, and Segura‟s threats to the

3

cheerleaders.

4

have standing.

Accordingly, she has made sufficient allegations to

5

However, while Ramona‟s allegations are sufficient for

6

standing purposes, the Court finds that she has failed to state a

7

claim under Section 1983.

8

the FAC concerning Segura‟s treatment of Ramona as compared to her

9

treatment of other similarly situated dance team

There are insufficient allegations in

10

coaches/choreographers or cheerleader dance instructors, to bring a

11

claim under the equal protection clause.

12

violation of her First Amendment right of association is also

13

insufficient.

14

Ramona‟s claim of

The First Amendment does not expressly contain a “right of

15

association” but it does protect certain intimate human

16

relationships as well as the right to associate for the purposes of

17

engaging in those expressive activities otherwise protected by the

18

Constitution.

19

2004).

20

relationships, including family relationships, that presuppose deep

21

attachments and commitments to the necessarily few other

22

individuals with whom one shares not only a special community of

23

beliefs but also distinctly personal aspects of one‟s life.”

24

at 549-550 (internal citations omitted).

25

allegations in the FAC that Segura interfered with Ramona‟s right

26

to associate with any person.

27

a claim for violation of Ramona‟s First Amendment right of

28

association.

Wittman v. Saenz, 108 Fed. Appx. 548, 549 (9th Cir.

“The First Amendment right of association protects those

Id.

There are simply no

Accordingly, the FAC does not state

20

1
2

The Court turns next to Ramona‟s allegations that her right to
make and enforce contracts was violated.

3

42 U.S.C. § 1981 provides that all persons
shall have the same right . . . to make and
enforce contracts . . . as is enjoyed by white
citizens. The statute defines, make and
enforce contracts to include the making,
performance, modification and termination of
contract, and the enjoyment of all benefits,
privileges, terms and conditions of the
contractual relationship.

4
5
6
7
8

Flores v. Von Kleist, 739 F.Supp.2d 1236, 1256 (E.D. Cal. 2010)

9

(internal citations omitted).

To state a claim under Section 1981

10

a plaintiff must identify an “impaired contractual relation,” by

11

showing that intentional racial discrimination prevented the

12

creation of a contractual relationship or impaired an existing

13

contractual relationship.

14

(E.D. Cal. July 14, 2010) (internal citations omitted).

Schiff v. Barrett, 2010 WL 2803037, *4

15

Here, the FAC fails to allege the existence of any contractual

16

relationship, whether between Ramona and the District or Ramona and

17

the cheerleaders.

18

contractual allegation, Ramona has failed to state a claim under

19

Section 1981.

20

to amend.

21
22
23

8.

Without the necessary allegations of an impaired

The seventh claim for relief is dismissed with leave

42 U.S.C. § 1983, Retaliation in Violation of First
Amendment Rights

The eighth claim for relief is brought by J.C. against Ray and

24

Segura, and alleges that they retaliated against J.C. for

25

exercising his First Amendment rights by taking adverse actions

26

against him, and taking adverse actions against his wife and son.

27

Claims against a government official for First Amendment

28

retaliation require that an employee demonstrate: “(1) that he or
21

1

she engaged in protected speech; (2) that the employer took adverse

2

employment action” and (3) that his or her speech was a substantial

3

or motivating factor for the adverse employment action.”

4

Lassen Community College Dist., 360 Fed.Appx. 795, 797 (9th Cir.

5

2009) (citing Coszalter v. City of Salem, 320 F.3d 968, 973 (9th

6

Cir. 2003)).

7

employee, the threshold inquiry is whether the statements at issue

8

substantially address a matter of public concern.

9

Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 978

10

(9th Cir. 1998) (citing Roe v. City & County of San Francisco, 109

11

F.3d 578, 584 (9th Cir. 1997).

12

an issue of political, social, or other concern to the community,

13

it may fairly be said to be of public concern.

14

employment actions are actions taken by the defendants that were

15

reasonably likely to deter the plaintiff from engaging in protected

16

activity under the First Amendment.

17

One may show that the protected activity was a substantial or

18

motivating factor for the retaliatory actions due by alleging

19

temporal proximity between the protected activity and the adverse

20

actions.

Grosz v.

In evaluating the First Amendment rights of a public

Brewster v.

If employee expression relates to

Id.

Adverse

Grosz, 360 Fed.Appx. at 798.

Id.

21

Here, the FAC alleges that J.C. exercised his First Amendment

22

rights when he made school presentations about the Native American

23

perspective of Thanksgiving.

24

exercised his First Amendment rights when he spoke out in

25

opposition to alleged unlawful discrimination occurring at the high

26

school.

27

that have been discussed above were taken against him in

28

retaliation for exercising his First Amendment rights.

The FAC also alleges that J.C.

J.C. alleges that the adverse actions of Ray and Segura

22

The eighth

1

claim also alleges that Ray and Segura took actions against his son

2

and his wife, to further retaliate and dissuade J.C. from

3

exercising his First Amendment rights.

4

Defendants argue that J.C. fails to state a claim for

5

retaliation in violation of the First Amendment, because the FAC

6

does not allege he made a “statement” for which was retaliated

7

against.

8

accused only of personnel management actions.

9

assert that even if J.C. has successfully pled a claim, Ray and

10

Further, Defendants contend that Ray and Segura are
Lastly, Defendants

Segura are entitled to qualified immunity.

11

The issues alleged in the FAC that J.C. spoke out about

12

(Native American issues and discrimination in the school) may be

13

considered matters of public concern.

14

numerous actions taken against J.C. by Ray and Segura that may be

15

considered adverse actions.

16

the majority of J.C.‟s protected activities and Ray and Segura‟s

17

adverse actions took place during the 2009-2010 school year, the

18

FAC is lacking allegations of temporal proximity that would allow

19

the Court to infer that the adverse actions were indeed connected

20

to the protected activity.

21

speech on Native American perspectives, the FAC does not allege the

22

dates on which J.C. engaged in his other protected activity nor the

23

dates on which Ray and Segura took alleged adverse actions.

24

Accordingly, the Court dismisses the claim for violation of the

25

First Amendment, with leave to amend.

26

assertion that they are entitled to qualified immunity, the Court

27

does not find that it is clear on the face of the FAC that they are

28

entitled to qualified immunity, and thus will not grant qualified

Likewise, the FAC alleges

However, while the FAC alleges that

With the exception of J.C.‟s 2006

23

As to Ray and Segura‟s

1

immunity on this claim at this time.

2

C.

Motion to Strike

3

Lastly, the Court will address Defendants‟ Motion to Strike,

4

brought pursuant to Federal Rule of Civil Procedure 12(f).

5

Defendants ask the Court to strike paragraphs 16, 17 and 18 of the

6

FAC.

7

served as Head Coach of the basketball team and Ray was involved in

8

selecting a volunteer coach named Howard Hughes.

9

accept J.C. as his supervisor and engaged in insubordinate acts.

10

Paragraph 17 alleges that on November 21, 2006, J.C., Ramona and

11

their son gave presentations on the Native American perspective

12

about Thanksgiving at school wide assemblies.

13

were the subject of an editorial and opinion piece in the local

14

newspaper on November 29, 2006.

15

presentation Ray confronted J.C. about his Native American

16

spiritual beliefs, expressed disapproval, and thereafter exhibited

17

hostility.

18

J.C.‟s 2004-2007 tenure as Head Coach that included supporting

19

parental opposition to the presence of J.C.‟s son, condoning

20

Hughes‟ insubordination, encouraging parental complaints about J.C.

21

telling “Indian stories” and urging officials to cite J.C. for a

22

technical foul when he went to assist an injured player.

23

Paragraph 16 alleges that during the 2004-2007 period, J.C.

Hughes refused to

These presentations

It is alleged that soon after the

Paragraph 18 alleges that Ray engaged in conduct during

Defendants argue that these paragraphs should be stricken

24

because they are outside the statute of limitations.

25

right-to-sue notifications from California‟s Department of Fair

26

Employment and Housing on October 18, 2010 and December 29, 2010,

27

and right-to-sue letters from the U.S. Department of Justice on

28

behalf of the Equal Employment Opportunity Commission on November
24

J.C. received

1
2
3
4
5
6
7
8
9
10

3, 2010 and February 28, 2011.
Rule 12(f) provides in pertinent part that
the Court may order stricken from any
pleading any insufficient defense or any
redundant, immaterial, impertinent, or
scandalous matter . . . Motions to strike
are disfavored an infrequently granted. A
motion to strike should not be granted
unless it is clear that the matter to be
stricken could have no possible bearing on
the subject matter of the litigation.
Bassett v. Ruggles et al., 2009 WL 2982895 at *24(E.D. Cal.
Sept. 14, 2009) (internal citations omitted).
Under federal law, an aggrieved person must file charges

11

within either 180 or 300 (if complaint also filed with a State

12

agency) days of the alleged unlawful employment practice.

13

U.S.C. § 2000e-5(e)(1) and (f)(1).

14

Employment and Housing Act (“FEHA”), “no complaint may be filed

15

after the expiration of one year from the date upon which the

16

alleged [discriminatory] practice or refusal to cooperate

17

occurred.”

18

1040 (2002).

19

bars bringing a civil action.

20

Corp. v. Morgan, 536 U.S. 101, 113-114 (2002) (holding that under

21

42 U.S.C. § 2000e-5 discrete discriminatory acts are not actionable

22

if time barred, even when they are related to acts alleged in

23

timely filed charges); Morgan v. Regents of University of

24

California, 88 Cal.App.4th 52, 63 (2000) (holding that under FEHA,

25

the timely filing of an administrative complaint is a prerequisite

26

to the bringing of a civil action for damages).

See 42

Under the California Fair

Cucuzza v. City of Santa Clara, 104 Cal.App.4th 1031,
Failure to file a timely administrative complaint
See e.g. National Railroad Passenger

27

Under California law, the continuing violations doctrine

28

“allows liability for unlawful employer conduct occurring outside
25

1

the statute of limitations if it is sufficiently connected to

2

unlawful conduct within the limitations period.”

3

Hill, Inc., 26 Cal. 4th 798, 802 (Cal. 2001).

4

prove three prongs in order to invoke the continuing violation

5

doctrine under FEHA.

6

within the limitations period must be “sufficiently similar in kind

7

to the conduct that falls outside the period.”

8

Fresno, 625 F.Supp.2d 983, 1023 (E.D. Cal. 2009).

9

conduct must have occurred with “reasonable frequency.”

Id. at 823.

Richards v. CH2M

The employee must

First, the conduct that occurred

Harris v. City of
Second, the
Id.

10

Third, the conduct must not have acquired “a degree of permanence

11

such that the employee was on notice that further efforts at

12

informal conciliation to obtain reasonable accommodation or end

13

harassment [would] be futile.”

Id.

14

Defendants argue that Ray‟s conduct was not a continuing

15

violation, and thus J.C. should not be able to include allegations

16

that occurred during the 2004-2007 period.

17

these allegations are irrelevant, immaterial and/or impertinent

18

under Rule 12(f).

19

be stricken, as they constitute a continuing violation.

20

Defendants argue that

Plaintiffs argue that the allegations should not

Motions to strike are disfavored, and must meet a high

21

standard before the Court will strike allegations from a complaint.

22

See Rule 12(f), supra.

23

facts and circumstances surrounding the alleged events and conduct

24

that took place from 2004-2207, and later from 2009-2011,

25

Plaintiffs may be able to prove that Ray‟s conduct is a continuing

26

violation.

27

the cited cases, in which the courts engaged in a fact intensive

28

analysis under the continuing violations test (see eg. Cucuzza,

Here, following further discovery of the

This case is not at the summary judgment stage, unlike

26

1

supra; Harris, supra ).

While J.C. may be unable to use the

2

allegations from the 2004-2007 period to support a Title VII claim,

3

given the different rules surrounding the statute of limitations

4

for federal and state claims, the Court will not strike these

5

paragraphs at this time, as they may prove relevant to the state

6

claims.

Accordingly, Defendants‟ motion to strike is DENIED.

7
8
9
10

III. ORDER
Defendants Motion to Dismiss is GRANTED in part and DENIED in
part, as set forth below:

11

1.

12

DENIED.

13

2.

14

DENIED.

15

3.

16

DENIED.

17

4.

The motion to dismiss the first claim for relief is

The motion to dismiss the second claim for relief is

The motion to dismiss the third claim for relief is

The motion to dismiss the Title VII claim within the

18

fourth claim for relief is GRANTED.

The Title VII claim within the

19

fourth claim for relief is DISMISSED WITH PREJUDICE. The motion to

20

dismiss the FEHA claim within the fourth claim for relief is

21

DENIED.

22

5.

23

DENIED.

24

6.

The motion to dismiss the fifth claim for relief is

The motion to dismiss the Equal Protection claim within

25

the sixth claim for relief is DENIED.

26

First Amendment claim within the sixth claim for relief is GRANTED.

27

The First Amendment discrimination claim within the sixth claim for

28

relief is DISMISSED, WITH PREJUDICE.
27

The motion to dismiss the

1

7.

2

GRANTED.

3

The motion to dismiss the seventh claim for relief is

AMEND.

4

8.

5

GRANTED.

6

The seventh claim for relief is DISMISSED, WITH LEAVE TO

The motion to dismiss the eighth claim for relief is
The eighth claim for relief is DISMISSED, WITH LEAVE TO

AMEND.

7

9.

8

Plaintiffs are ordered to file a Second Amended Complaint

9

The motion to strike is DENIED.

within twenty-one (21) days of the date of this order.

It is

10

further ordered that the allegations regarding J.C.‟s alleged

11

“medical condition” should not be included in the Second Amended

12

Complaint, as Plaintiffs‟ opposition brief did not oppose their

13

dismissal and did not respond to any of Defendants‟ arguments

14

concerning the dismissal of these allegations.

15

IT IS SO ORDERED.

16

Dated: October 5, 2011

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
28