Parque v. Fort Sage Unified School District et al

Filing 14

ORDER signed by Chief Judge Morrison C. England, Jr. on 7/8/2015 GRANTING in part and DENYING in part defendants' 10 Motion to Dismiss 9 First Amended Complaint. Motion is GRANTED as to first and third causes of action. Thus, theTitle VII ha rassment claim against defendant Young and ADEA claim againstdefendant FSUSD are DISMISSED with prejudice. As to fifth cause of action, the Motion is GRANTED to extent it seeks dismissal of plaintiff's substantive due process claim and DENIED to extent it seeks dismissal of plaintiff's procedural due process claim. Plaintiff's substantive due process claim is DISMISSED without prejudice. Motion is DENIED to extent that it requests Court decline supplemental jurisdiction over IIED claim against defendant Young. No later than 20 days following date this Order is electronically filed, plaintiff may, but is not required to, file an Amended Complaint. If no Amended Complaint is filed, the causes of action dismissed by virtue of this Order will be deemed dismissed WITH PREJUDICE upon no further Notice to parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NANCY PARQUE,

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Plaintiff,

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No. 2:15-cv-00044 MCE CMK

v.

MEMORANDUM AND ORDER

FORT SAGE UNIFIED SCHOOL
DISTRICT and BRYAN YOUNG,
Defendants.

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Through this action, Plaintiff asserts several causes of action based on the

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discrimination and harassment she allegedly encountered while working at Herlong High

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School. Currently pending before the Court is Defendants’ Motion to Dismiss (ECF

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No. 10) Plaintiff’s First Amended Complaint (“FAC”) (ECF No. 9). For the reasons that

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follow, Defendants’ Motion is GRANTED in part and DENIED in part.1

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Because oral argument would not have been of material assistance, the Court ordered this

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BACKGROUND2

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Plaintiff Nancy Parque (“Plaintiff”) worked as a teacher for Defendant Fort Sage

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Unified School District (“FSUSD”) for approximately twenty-seven years. Defendant

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Bryan Young (“Young”) was the superintendent of FSUSD and the principal of Herlong

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High School during the time period relevant to this lawsuit.
In September 2012, students in Plaintiff’s classes at Herlong High School “began

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engaging in a continuing practice of severe sexual harassment of Plaintiff . . . .”3 Plaintiff

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reported the harassment to Young on the day that it began and on several occasions

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thereafter. Rather than assisting Plaintiff, however, Young instructed other FSUSD staff

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not to attempt to end the harassment, and he encouraged the students to continue

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harassing Plaintiff. According to Plaintiff, it was Young’s hope that the harassment

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would serve as a catalyst for Plaintiff’s resignation. Young’s plan came to fruition: on

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September 18, 2013, Plaintiff resigned “due to severe stress and emotional difficulties

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caused by the harassment she endured” on a daily basis for a year.
Plaintiff’s FAC alleges the following six causes of action: (1) harassment (hostile

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work environment based on sex) under Title VII of the Civil Rights Act of 1964 (“Title

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VII”) against both FSUSD and Young (collectively, “Defendants”); (2) constructive

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termination in violation of Title VII against FSUSD; (3) age discrimination under the Age

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Discrimination in Employment Act (“ADEA”) against FSUSD; (4) retaliation under Title VII

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against FSUSD; (5) violation of 42 U.S.C. § 1983 against Young; and (6) intentional

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infliction of emotion distress (“IIED”) against Young. In the pending Motion, Defendants

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seek dismissal of the first, third, fifth, and sixth causes of action.

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The following statement of facts is based on the allegations in Plaintiff’s FAC (ECF No. 9).

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The FAC details several specific instances of conduct that Plaintiff alleges amounted to severe
sexual harassment.

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STANDARD

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On a motion to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6),4 all allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require

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detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of

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

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recitation of the elements of a cause of action will not do.” Id. (internal citations and

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quotations omitted). A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief

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above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright &

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Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the

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pleading must contain something more than “a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action”)).

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Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket

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assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and

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quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

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to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of

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the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright &

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Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to

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relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their

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All subsequent references to “Rule” are to the Federal Rules of Civil Procedure.

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claims across the line from conceivable to plausible, their complaint must be dismissed.”

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Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge

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that actual proof of those facts is improbable, and ‘that a recovery is very remote and

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unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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A court granting a motion to dismiss a complaint must then decide whether to

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grant leave to amend. Leave to amend should be “freely given” where there is no

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“undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment, [or] futility of the

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amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend). Not all of these factors

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merit equal weight. Rather, “the consideration of prejudice to the opposing party . . .

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carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

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185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that

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“the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Grp.,

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Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006,

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1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.

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1989) (“Leave need not be granted where the amendment of the complaint . . .

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constitutes an exercise in futility . . . .”)).

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ANALYSIS

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Defendants seek dismissal of four of Plaintiff’s claims. For the following reasons,

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Defendants’ Motion to dismiss is GRANTED as to Plaintiff’s harassment and age

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discrimination claims (first and third causes of action), GRANTED in part and DENIED in

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part as to Plaintiff’s due process claim (fifth cause of action) and DENIED as to Plaintiff’s

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IIED claim (sixth cause of action).

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A. First Cause of Action: Harassment Under Title VII

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Plaintiff directs her first cause of action at both FSUSD and Young. Defendants

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argue, and Plaintiff concedes, that this claim should be dismissed as to Young.

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Accordingly, Defendants’ Motion is GRANTED on this basis, and Plaintiff’s Title VII

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harassment claim is DISMISSED with prejudice as to Young.

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B. Third Cause of Action: Age Discrimination Against FSUSD

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Plaintiff’s third cause of action is directed at FSUSD only. FSUSD seeks

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dismissal of that claim on the grounds that it is entitled to immunity under the Eleventh

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Amendment to the United States Constitution.5

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“[I]n the absence of consent a suit in which the State or one of its agencies or

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departments is named as the defendant is proscribed by the Eleventh Amendment.”

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Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). California school

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districts are state agencies immune to suit under the Eleventh Amendment. Belanger v.

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Madera Unified Sch. Dist., 963, F.2d 248, 254 (9th Cir. 1992). Although Congress may,

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with a valid grant of constitutional authority, abrogate Eleventh Amendment immunity in

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a specific law, the United States Supreme Court has declared “ADEA’s purported

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abrogation of the States’ sovereign immunity . . . invalid.” Kimel v. Fla. Bd. of Regents,

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528 U.S. 62, 91 (2000).
The FAC makes clear that FSUSD is a California school district and therefore

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entitled to immunity under the Eleventh Amendment. Because the ADEA does not

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abrogate that immunity and because FSUSD has not consented to this suit, Defendants’

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Motion is GRANTED and the third cause of action is DISMISSED with prejudice.

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Plaintiff’s Opposition to Defendants’ Motion (ECF No. 11) does not address or even
acknowledge FSUSD’s request to dismiss the third cause of action.

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C. Fifth Cause of Action: § 1983 Violation Against Young

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Plaintiff’s fifth cause of action is a § 1983 claim6 against Young based on an

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alleged deprivation of Plaintiff’s Fourteenth Amendment due process rights. According

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to Plaintiff, her constructive termination from Herlong High School violated both her

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substantive and procedural due process rights. Young, however, contends this claim

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should be dismissed on the grounds that he is entitled to qualified immunity because he

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did not violate a clearly established constitutional right.

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1. Substantive Due Process
“The right to pursue a chosen profession is protected by substantive due process

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. . . .” Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 998 (9th Cir. 2007). However, the

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right is “to pursue an entire profession, and not the right to pursue a particular job.” Id.

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(emphasis added). To rise to the level of a substantive due process violation,

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governmental conduct must make it “virtually impossible” for Plaintiff to find new

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employment within the profession. Id. Such a claim is limited to “extreme cases, such

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as a ‘government blacklist, which when circulated or otherwise publicized to prospective

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employers effectively excludes the blacklisted individual from his occupation, much as if

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the government had yanked the license of an individual in an occupation that requires

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licensure.’” Id. at 997-98 (quoting Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir.

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1997)).
Although Plaintiff’s FAC does not specify the right on which she bases her

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substantive due process claim, the right described in Engquist appears to be the most

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applicable. Plaintiff, however, has not alleged that she was deprived of her right to

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pursue a profession. Rather, the FAC suggests that Young deprived her only of a job at

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Herlong High School, and there is no suggestion that the harassment made it “virtually

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impossible” for Plaintiff to pursue teaching opportunities elsewhere.

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See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“42 U.S.C. § 1983 creates a cause of
action against a person who, acting under color of state law, deprives another of rights guaranteed under
the Constitution.”).

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Accordingly, the fifth cause of action is DISMISSED without prejudice to the
extent that it alleges a substantive due process claim.7

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2. Procedural Due Process
A § 1983 claim based upon procedural due process consists of (1) a deprivation

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of a liberty or property interest protected by the Constitution, and (2) a denial of

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adequate procedural protections. See Brewster v. Bd. of Educ. of the Lynwood Unified

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Sch. Dist., 149 F.3d 971, 982 (9th Cir.1998). If a liberty or property interest exists, the

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essential requirements of due process are notice and an opportunity to respond. See

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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).

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Under California law, “[a] certified employee is classified as permanent, i.e.,

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acquires tenure, if, after having been employed for two complete successive school

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years in a position requiring certification qualifications, he or she is reelected for the

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following year.” Bakersfield Elementary Teachers Ass’n v. Bakersfield City Sch. Dist.,

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145 Cal. App. 4th 1260, 1278-79 (2006) (citing Cal. Educ. Code § 44929.21(b)). Tenured

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teachers “possess a property right in continued employment . . . .” Barthuli v. Bd. of Trs.

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of Jefferson Elementary Sch. Dist., 19 Cal.3d 717, 722 (1977) (citations omitted). “[T]he

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state must comply with procedural due process requirements before it may deprive [a]

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permanent employee of [their] property interest [in continued employment] by punitive

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action.” Bostean v. L.A. Unified Sch. Dist., 63 Cal. App. 4th 95, 110 (1998).

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Here, the FAC alleges that Plaintiff taught in the FSUSD for twenty-seven years

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before leaving her position in September 2012. She therefore appears to be a tenured

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teacher with a property right in continued employment.8 Furthermore, Plaintiff has

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If Plaintiff bases her substantive due process claim on a different fundamental right, she may file
a Second Amended Complaint that specifically identifies that right.
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The United States Supreme Court is currently split on the issue of whether liberty and property
interests arising under the Constitution for procedural due process purposes are the same as fundamental
rights requiring substantive due process protection. See Kerry v. Din, No. 13-1402, ___ U.S. ___, ___,
2015 WL 2473334, at *1 (June 15, 2015). In Kerry v. Din, Justice Breyer’s dissent—which three other
justices joined—distinguished liberty and property interests that warrant procedural due process
protections from fundamental rights that warrant substantive due process protections. Justice Scalia’s
three-judge plurality opinion, however, challenged the notion that “there are two categories of implied
rights protected by the Due Process Clause: really fundamental rights, which cannot be taken away at all

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sufficiently alleged that she did not receive any, let alone adequate, procedural

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protections. Specifically, Plaintiff alleges that when she informed Young of the

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harassment that eventually led to her retirement, Young not only instructed other FSUSD

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staff not to try to quell the harassment, but he also encouraged the students to continue

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with their conduct.

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Thus, Plaintiff has sufficiently alleged that she had a liberty interest in continued

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employment with FSUSD, and that she was deprived of that liberty interest without

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adequate protections. Accordingly, Plaintiff has sufficiently pled a prima facie § 1983

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claim based upon a deprivation of her procedural due process rights under the

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Fourteenth Amendment.
3. Qualified Immunity
Young argues that he is nonetheless entitled to qualified immunity on Plaintiff’s

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§ 1983 procedural due process claim. The doctrine of qualified immunity protects

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government officials “from liability for civil damages insofar as their conduct does not

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violate clearly established statutory or constitutional rights of which a reasonable person

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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). More succinctly:

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“Qualified immunity is applicable unless the official’s conduct violated a clearly

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established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).

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“Where the defendant seeks qualified immunity, a ruling on that issue should be made

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early in the proceedings so that the costs and expenses of trial are avoided where the

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defense is dispositive.” Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other

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grounds, Pearson, 555 U.S. at 227.

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Here, Young argues that he is entitled to qualified immunity because the

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procedural protections required for depriving a tenured teacher of her property interest in

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continued employment through a constructive termination are not clearly established.

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absent a compelling state interest; and not-so-fundamental rights, which can be taken away so long as
procedural due process is observed.” Id. at *8. In any event, this Court has no difficulty concluding that
Plaintiff’s property interest in continued employment as a tenured teacher warrants procedural due
process protections but not substantive due process protections.

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See Defs.’ Reply, ECF No. 12, at 2 (“[I]t has not been clearly established what

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procedural due process an employee claiming constructive termination is due.”).

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Young’s argument, however, fails to appreciate that the Ninth Circuit has determined

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that “a retirement or resignation may be involuntary and constitute a deprivation of

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property for purposes of a due process claim” alleged in a § 1983 action.

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Knappenberger v. City of Phoenix, 566 F.3d 936, 941 (9th Cir. 2009).9 Knappenberger,

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a case decided in 2009, by itself forecloses Young’s argument that Plaintiff’s due

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process rights were not clearly established when she was constructively terminated

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between September 2012 and September 2013. See Mattos v. Agarano, 661 F.3d 422,

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446 (9th Cir. 2011) (en banc) (“We begin our inquiry into whether this constitutional

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violation was clearly established by looking at the most analogous case law that existed

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when [the challenged conduct occurred]”). Although Knappenberger did not address

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what specific protections are required in the constructive termination context, it implies

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that some process is due. In the absence of additional guidance, the Court must resort

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to “the essential requirements of due process,” notice and an opportunity to respond.

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See Loudermill, 470 U.S. at 546. Plaintiff’s FAC, which describes Young’s response to

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her complaints of the harassment that eventually led to her retirement, sufficiently

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alleges that she was not provided notice and an opportunity to respond. Accordingly,

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Young is not entitled to qualified immunity on Plaintiff’s § 1983 procedural due process

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claim.

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See also Lauck v. Campbell Cnty., 627 F.3d 805, 813 (10th Cir. 2010) (“This is not to say that
there is no such thing as a due-process constructive-discharge claim. . . . An employer cannot circumvent
the due-process requirements that would attend a true firing by trying to compel a resignation in a manner
that violates the employee’s property (that is, contract) rights.”); Buchanan v. Little Rock Sch. Dist. of
Pulaski Cnty., Ark., 84 F.3d 1035, 1038 n.3 (8th Cir. 1996) (“had she been terminated or had her transfer
amounted to a constructive termination, the due process clause could have been implicated”); Stone v.
Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988) (“If, on the other hand, [plaintiff’s]
‘resignation’ was so involuntary that it amounted to a constructive discharge, it must be considered a
deprivation by state action triggering the protections of the due process clause. A public employer
obviously cannot avoid its constitutional obligation to provide due process by the simple expedient of
forcing involuntary ‘resignations.’”); Fowler v. Carrollton Public Library, 799 F.2d 976, 981 (5th Cir. 1986)
(“Constructive discharge in a procedural due process case constitutes a § 1983 claim only if it amounts to
forced discharge to avoid affording pretermination hearing procedures.”).

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Young’s Motion to Dismiss is therefore GRANTED to the extent that it seeks

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dismissal of Plaintiff’s § 1983 substantive due process claim and DENIED to the extent

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that it seeks dismissal of Plaintiff’s § 1983 procedural due process claim.

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D. Sixth Cause of Action: IIED Against Young

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Plaintiff’s IIED claim is directed at Young only. In the pending Motion, Young

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argues that if the Court dismisses the Title VII harassment and the § 1983 claim against

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him,10 the IIED claim will be the only remaining claim against him. Young argues that

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because the IIED claim is a state law claim, the Court should decline supplemental

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jurisdiction over that claim and dismiss him from the case.

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In this case, the Court has original jurisdiction over the Title VII claims against

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FSUSD and the § 1983 procedural due process claim against Young because those

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claims arise under federal laws. The FAC makes clear that the IIED claim is based on

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the exact same facts as the Title VII claims and the § 1983 procedural due process

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claim. It follows that the IIED claim should ordinarily be tried with those federal causes

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of action. See 28 U.S.C. § 1367(a); United Mine Workers v. Gibbs, 383 U.S. 715, 725

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(1966). Accordingly, Defendants’ Motion is DENIED to the extent it requests that the

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Court decline to exercise supplemental jurisdiction over the IIED claim against Young.

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This Order fulfils only one of those conditions.

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CONCLUSION

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Defendants’ Motion to Dismiss (ECF No. 10) is GRANTED in part and DENIED in
part as follows:
1. The Motion is GRANTED as to the first and third causes of action. Thus, the

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Title VII harassment claim against Defendant Young and the ADEA claim against

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Defendant FSUSD are DISMISSED with prejudice.

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2. As to the fifth cause of action, the Motion is GRANTED to the extent that it
seeks dismissal of Plaintiff’s substantive due process claim and DENIED to the extent

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that it seeks dismissal of Plaintiff’s procedural due process claim. Plaintiff’s substantive

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due process claim is DISMISSED without prejudice.

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3. The Motion is DENIED to the extent that it requests that the Court decline
supplemental jurisdiction over the IIED claim against Defendant Young.
4. Not later than twenty (20) days following the date this Order is electronically

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filed, Plaintiff may, but is not required to, file an amended complaint. If no amended

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complaint is filed, the causes of action dismissed by virtue of this Order will be deemed

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dismissed WITH PREJUDICE upon no further notice to the parties.

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IT IS SO ORDERED.
Dated: July 8, 2015

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