Hellmann-Blumberg v. University of the Pacific

Filing 29

ORDER signed by Judge Garland E. Burrell, Jr on 3/29/2013 ORDERING, for the stated reasons in this order, Plaintiff's disparate impact claim is DISMISSED, and the remainder of Defendant's 14 Motion for Judgment is DENIED. (Waggoner, D)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 UTHA HELLMANN–BLUMBERG, Plaintiff, 9 v. 10 11 UNIVERSITY OF THE PACIFIC, a California Corporation, 12 Defendant. _______________________________ 13 ) ) ) ) ) ) ) ) ) ) ) 2:12-cv-00286-GEB-DAD ORDER DISMISSING DISCRIMINATORY IMPACT CLAIM AND DENYING MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS 14 Defendant moves under Federal Rule of Civil Procedure (“Rule”) 15 12(c) for partial judgment on Plaintiff’s discriminatory impact claim, 16 which is alleged under Title VII of the Civil Rights Act of 1974, 42 17 U.S.C. § 2000e et seq., and Plaintiff’s state contract claims. Defendant 18 argues 19 administratively exhausted her disparate impact claim and state courts 20 have exclusive jurisdiction over her contract claims under California 21 law. its motion should be granted because Plaintiff has not 22 I. LEGAL STANDARD AND REQUEST FOR JUDICIAL NOTICE 23 “[A] motion for a judgment on the pleadings is a motion for a 24 judgment on the merits. Since [D]efendant alleges only jurisdictional 25 grounds for dismissal, the proper course is to consider the motion as 26 one to dismiss for lack of subject matter jurisdiction.” Collins v. 27 Bolton, 287 F. Supp. 393, 396 (N.D. Ill. 1968) (citation omitted). Thus, 28 Defendant’s “motion [is to be treated] as if it had been brought under 1 1 Rule 12(b)(1).” San Luis Unit Food Producers v. United States, 772 F. 2 Supp. 2d 1210, 1218 (E.D. Cal. 2011) (alteration in original) (internal 3 quotation marks omitted) (quoting 5C Charles Allen Wright & Arthur R. 4 Miller, Federal Practice and Procedure § 1367 (3d ed. 2004)). Rule 5 12(b)(1) challenges to a court’s subject matter jurisdiction “can be 6 either facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 7 2000). Facial challenges attack the pleadings as insufficient to invoke 8 federal jurisdiction; factual challenges contest the truth of the 9 jurisdictional pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 10 1039 (9th Cir. 2004). In a factual attack on jurisdiction, a court “may 11 look beyond the complaint” to evaluate jurisdictional facts that are not 12 intertwined with the merits of the action without converting the motion 13 into a motion for summary judgment. White, 227 F.3d at 1242; Trentacosta 14 v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987) 15 (collecting cases). 16 Defendant’s motion includes its request that the Court take 17 judicial notice of the following two documents, which Defendant argues 18 support its argument that Plaintiff’s discriminatory impact claim should 19 be 20 Charge”), and Plaintiff’s supplement to her EEOC Charge (“Supplement”). 21 Plaintiff opposes this request arguing: “The documents are hearsay for 22 which no foundation for any exception to the hearsay rule has been 23 shown.” (Opp’n Req. Judicial Notice 1:21–25, ECF No. 20.) dismissed: Plaintiff’s EEOC “Charge of Discrimination” (“EEOC 24 Defendant counters the statements contained in the EEOC Charge 25 and Supplement are not hearsay since they are not being offered for 26 their truth, but for the limited purpose of showing that Plaintiff 27 failed to exhaust her administrative remedies. (Reply 6:10–13, ECF No. 28 22.) 2 1 Plaintiff’s hearsay objection is overruled in light of the 2 response to the objection, and therefore, Defendant’s request for 3 judicial notice for the limited purpose for which the documents are 4 offered is granted. Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th 5 Cir. 2012) (“[A court] may take judicial notice of records and reports 6 of administrative bodies.” (internal quotation marks omitted)); Gallo v. 7 Bd. of Regents of Univ. of Cal., 916 F. Supp. 1005, 1007 (S.D. Cal. 8 1995) (“[T]he Court may consider both the EEOC right to sue letter and 9 the EEOC charge, either as referenced in the complaint or as public 10 records subject to judicial notice.”). 11 II. BACKGROUND 12 The following factual background is drawn from allegations in 13 Plaintiff’s complaint and the judicially noticed documents. Defendant, 14 “a California Corporation that owns and operates a university,” employed 15 Plaintiff as a tenure-track Assistant Professor in its Department of 16 Chemistry 17 Plaintiff’s “gender is female.” (Id. at ¶ 11.) During the 2006–2007 18 academic year, Plaintiff “sought promotion and appointment with tenure 19 in the Department of Chemistry.” (Id. at ¶ 12.) until she was discharged. (Compl. ¶¶ 6–7, ECF No. 1.) 20 “In a letter dated April 15, 2007, Donald De Rosa, President 21 of [Defendant], denied tenure and promotion to [Plaintiff].” (Id. at 22 ¶ 23 employment.” (Id. at ¶¶ 16–17.) 24 16.) “On August 31, 2008, [Defendant] terminated [Plaintiff]’s Following her termination, Plaintiff “filed a charge of sex 25 discrimination 26 Employment Opportunity Commission (EEOC),” and she received a right to 27 sue letter. (Id. ¶ 21–22.) Plaintiff’s EEOC Charge of Discrimination 28 shows she checked the boxes for “discrimination based on” “sex” and against [Defendant] 3 with the United States Equal 1 “age.” (Req. 2 Charge states: 3 Judicial Notice, Ex. A, ECF No. 15-1.) Plaintiff’s EEOC In mid-April 2007, I received a letter from Provost Phillip Gilbertson stating that my tenure and promotion had been denied, despite . . . my positive evaluations and a unanimous recommendation for tenure and promotion from the Evaluation Committee. . . . I believe I have been discriminated against because of my sex, Female, in violation of Title VII . . . . 4 5 6 7 8 (Id. (emphasis added).) Further, Plaintiff later sent the EEOC a letter 9 updating 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the EEOC on “two new developments,” which includes following: 1. In my original complaint I stated that I had never received any reasons why I was denied tenure (which is the same as termination of my position in the summer of 2008) or promotion to associate professor. The reasons were finally delivered on December 21, 2007 together with a letter citing an improbable cause for their 4months delay. Several of the reasons are not admissible under university rules because they were not backed by the evidence collected in the official document binder. I believe they come from secret conversations of certain university officials with one or two individuals with personal or professional animosity toward me. The last paragraph of the letter dated August 23, 2007, and delivered on December 21, 2007, cites “my response to proffered guidance in research and scholarly activities” as a major reason for denial of tenure and promotion. I believe this stems from secret complaints of a male professor loosely associated with our department who insisted that (female) assistant professors pay regular visits to his office for “mentoring” even if he had no experience in their research area (as in my case). I was also reluctant to comply because this individual had previously shown lack of integrity and made me uncomfortable. I am attaching the letter dated August 23, 2007, and a letter I sent to the committees when I forwarded the provost’s correspondence. I believe that the provost’s letter reflects an arbitrary decision by individuals (President and Provost with help from an interim dean) which feel that they have the power to make such decisions and which are neither qualified to judge my accomplishments nor inclined to consider 4 the 1 the evidence, the committee reports, or favorable recommendations from faculty committees. 2 2. On Tuesday, January 15, 2008, the hiring of replacement professors for me and for the other women from the chemistry department who was terminated last April under similar circumstances was announced. The fact that both candidates are male seems to support my suspicion that discrimination based on gender (as well as discrimination based on age) played an important role in the Provost’s and President’s decision to terminate my position despite favorable recommendations from faculty committees. 3 4 5 6 7 8 9 (Req. Judicial Notice, Ex. B, ECF No. 15-2 (emphasis added).) 10 After receiving a right-to-sue letter from the EEOC, Plaintiff 11 sued Defendant asserting, inter alia, breach of contract and implied 12 covenant claims, and discrimination claims under two different theories: 13 disparate treatment and disparate impact. 14 15 III. DISCUSSION A. Disparate Impact Claim 16 Defendant argues the Court lacks subject matter jurisdiction 17 over Plaintiff’s disparate impact claim since Plaintiff did not exhaust 18 applicable administrative remedies concerning this claim. Defendant 19 contends the “Charge of Discrimination” Plaintiff filed with the EEOC 20 failed to raise a disparate impact claim. Specifically, Defendant 21 argues: “[Plaintiff’s EEOC] Charge . . . gave the EEOC notice to 22 investigate claims for intentional gender and age discrimination under 23 a disparate treatment theory, but the Charge did not give the EEOC 24 notice to investigate any facially neutral employment policy with a 25 disproportionately discriminatory impact on a protected class under an 26 impact theory.” (Mot. Partial J. Pleadings 9:24–28, ECF No. 14.) 27 Plaintiff counters that she sufficiently exhausted her EEOC 28 administrative remedies on her disparate impact claim. Specifically, 5 1 Plaintiff argues her disparate impact claim is “‘reasonably related to 2 her failure to promote [disparate treatment] claim’” contained in her 3 EEOC Charge and Supplement, such that her disparate impact claim was 4 also sufficiently exhausted. (Opp’n 5:27–6:2 (quoting Brown v. Coach 5 Stores, Inc., 163 F.2d 706, 712 (2d Cir. 1998)).) 6 “Liability in a disparate-treatment case depends on whether 7 the 8 Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (alteration and 9 internal quotation marks omitted). “By contrast, disparate-impact claims protected trait actually motivated the employer’s decision.” 10 involve 11 treatment of different groups but that in fact fall more harshly on one 12 group than another and cannot be justified by business necessity.” Id. 13 (internal quotation marks omitted). 14 employment practices that are facially neutral in their “In order to establish subject matter jurisdiction over [a] 15 Title 16 administrative remedies. . . . by filing a timely charge with the EEOC 17 . . . thereby affording the agency an opportunity to investigate the 18 charge.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 19 2002) (citing 42 U.S.C. § 2000e-5(b)). “Allegations of discrimination 20 not included in the plaintiff’s administrative charge may not be 21 considered by a federal court unless the new claims are like or 22 reasonably related to the allegations contained in the EEOC charge.” Id. 23 at 1100 (emphasis added) (internal quotation marks omitted). “Subject 24 matter jurisdiction extends over all allegations of discrimination that 25 [would fall within the scope of] an EEOC investigation which can 26 reasonably be expected to grow out of the charge of discrimination.” Id. 27 (internal quotation marks omitted). VII claim, [a] Plaintiff 28 6 [is] required to exhaust her 1 The issue here is whether Plaintiff’s allegations contained 2 in her EEOC Charge and Supplement are “like or reasonably related to” 3 her discriminatory impact claim, such that the EEOC had an “opportunity 4 to 5 administrative charge that only alleges a discrimination claim based on 6 disparate treatment is insufficient to exhaust a claim for disparate 7 impact . . . .” De Los Santos v. Panda Express, Inc., No. C 10-01370 8 SBA, 2010 WL 4971761, at *4 (N.D. Cal. Dec. 3, 2010) (collecting cases); 9 accord Goethe v. Cal. Dep’t of Motor Vehicles, No. 2:07-cv-01945-MCE- 10 GGH, 2008 WL 489554, at *6 (E.D. Cal. Feb. 20, 2008) (“Because Plaintiff 11 pled only facts that would reasonably have led to an investigation of 12 disparate 13 administrative 14 Plaintiff’s . . . disparate impact claim.”); cf. Brown v. Puget Sound 15 Elec. Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir. 1984) 16 (reasoning an EEOC “investigation of whether [plaintiff]’s application 17 was 18 encompassed her subsequent claim that . . . she was subjected to 19 intentional sex discrimination,” and holding plaintiff “fail[ed] to 20 exhaust her administrative remedies before the EEOC[,] preclud[ing] the 21 presentation of her dis[parate] treatment claim in federal court”). investigate” her treatment rejected specific or remedies, as the claim. retaliation, and result this of Id. he Court disparate at 1099–1100. failed lacks to exhaust jurisdiction impact “[A]n would not his over have 22 Here, Plaintiff checked boxes in her EEOC Charge that show she 23 believed that she had been subjected to discrimination based on “sex” 24 and “age.” (Req. Judicial Notice, Ex. A.) In the factual-statement 25 section 26 discriminated against because of my sex, Female, in violation of Title 27 VII.” (Id. (emphasis added).) Plaintiff states in her EEOC Supplement 28 that she believed she was fired because of evidence that “come[s] from of her EEOC Charge she states: 7 “I believe I have been 1 secret conversations of university officials with one or two individuals 2 with personal or professional animosity toward me. . . . I believe this 3 stems from secret complaints of a male professor loosely associated with 4 our department . . . .” (Req. Judicial Notice, Ex. B (emphasis added).) 5 Further, Plaintiff states in her Supplement: 6 10 [T]he hiring of replacement professors for me and for the other women from the chemistry department who was terminated last April under similar circumstances was announced. The fact that both candidates are male seems to support my suspicion that discrimination based on gender . . . played an important role in the Provost’s and President’s decision to terminate my position despite favorable recommendations from faculty committees. 11 (Id. ¶ 2.) These allegations fail “to identify any neutral employment 12 policy that would form the basis of a disparate-impact claim.” Pacheco 13 v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006). Plaintiff did not allege 14 or even allude to “any specific policy or procedure” that adversely 15 affected her gender as a group. Goethe, 2008 WL 489554, at *6. Instead 16 of a facially neutral institutional policy or procedure, Plaintiff 17 alleges her firing was the result of “secret conversations of certain 18 university officials with one or two individuals with personal or 19 professional animosity toward me.” (Req. Judicial Notice, Ex. B.) 20 Plaintiff’s allegations of “personal or professional animosity” are 21 consistent with intentional discrimination motivated by gender, rather 22 than a “neutral employment policy[, which] is the cornerstone of any 23 EEO[C] disparate-impact investigation, since the EEO[C] must evaluate 24 the 25 justifications for the policy.” Pacheco, 448 F.3d at 792. Therefore, 26 Plaintiff has not shown that she exhausted her administrative remedies 27 as to her disparate impact claim. For the stated reasons, Plaintiff’s 7 8 9 policy’s effects on protected 28 8 classes and any business 1 disparate 2 jurisdiction. 3 B. impact claim is dismissed for lack of subject matter Contract and Implied Covenant Claims 4 Defendant argues partial judgment in its favor should be 5 entered on Plaintiff’s claims for breach of contract and breach of the 6 implied covenant of good faith and fair dealing because California Code 7 of Civil Procedure § 1094.5 deprives federal courts of jurisdiction over 8 these 9 covenant claims. Defendant damage claims argues: are “Plaintiff’s barred by her contract failure to and implied exhaust her 10 exclusive judicial remedy of a [state court] mandamus action.” (Mot. J. 11 Pleadings 14:9–11 (emphasis added) (citing various state cases).) 12 California state courts have interpreted section 1094.5 to 13 prescribe that “mandamus review” in California Superior Court “is the 14 exclusive remedy” for judicial review of university decisions denying 15 “academic tenure [to] a college professor.” Pomona Coll. v. Superior 16 Court, 45 Cal. App. 4th 1716, 1720 (1996). However, “[b]arring only 17 exceptional circumstances, or explicit [federal] statutory requirements, 18 resort to a federal court may be had without first exhausting the 19 judicial remedies of state courts.” Lane v. Wilson, 307 U.S. 268, 274-75 20 (1939) (internal citations omitted); accord BNSF Ry. Co. v. O’Dea, 572 21 F.3d 785, 788 (9th Cir. 2009) (“A state cannot confer rights upon 22 private parties and require that litigation between those parties must 23 be confined to the courts of the state itself.”); 17A Charles Alan 24 Wright et al., Federal Practice and Procedure § 4233 Exhaustion of State 25 Remedies 26 ‘legislative’ or ‘administrative’ remedies before challenging the state 27 action in federal court. He need not normally exhaust state ‘judicial’ (3d ed. 2001) (“A litigant 28 9 must normally exhaust state 1 remedies.” (footnote omitted)). Since Defendant has not shown this 2 portion of its motion should be granted, it is denied. 3 IV. CONCLUSION 4 For the stated reasons, Plaintiff’s disparate impact claim is 5 dismissed, and the remainder of Defendant’s motion (ECF No. 14) is 6 denied. 7 Dated: March 29, 2013 8 9 10 GARLAND E. BURRELL, JR. Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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