Cervantes v. Stockton Unified School District

Filing 18

ORDER signed by Judge Kimberly J. Mueller on 06/03/15 ORDERING, re 9 Motion to Dismiss, plaintiff's claims for relief under the ADEA, request for liquidated damages under the ADEA, and request for reinstatement are DISMISSED with prejudice; in all other respects, the 9 Motion to Dismiss is DENIED; The District shall file an answer within 14 days; the parties shall file a joint status report no less than 7 days before the status conference currently set for 08/13/15. See 16 Minute Order; in this report the parties shall propose a discovery plan to ensure the defendants' prompt discovery of the information underlying plaintiff's allegations. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LILY CERVANTES,

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No. 2:15-CV-00060-KJM-AC

Plaintiff,
v.

ORDER

STOCKTON UNIFIED SCHOOL
DISTRICT, and DOES I through X,
inclusive,1

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Defendants.

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Lily Cervantes is the former Executive Director of Legal Affairs for defendant

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Stockton Unified School District (the District). Her complaint alleges discrimination on the basis

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The Ninth Circuit has held that if a defendant’s identity is not known before the
complaint is filed, a “plaintiff should be given an opportunity through discovery to identify the
unknown defendants.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quotation
marks omitted) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Plaintiff is
warned, however, that Doe defendants will be dismissed if “it is clear that discovery would not
uncover the[ir] identities or that the complaint would be dismissed on other grounds.” Id.
(quotation marks omitted) (quoting Gillespie, 629 F.2d at 642). She is also warned that Federal
Rule of Civil Procedure 4(m) is applicable to Doe defendants. That rule provides the court must
dismiss defendants who have not been served within 120 days after the filing of the complaint
unless good cause is shown. See Glass v. Fields, No. 09-00098, 2011 U.S. Dist. LEXIS 97604
(E.D. Cal. Aug. 31, 2011); Hard Drive Prods. v. Does, No. 11-01567, 2011 U.S. Dist. LEXIS
109837, at *2–4 (N.D. Cal. Sep. 27, 2011).
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of race, sex, and age in violation of federal and California law. The District has moved to dismiss

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under Federal Rule of Civil Procedure 12(b)(6). The court held a hearing on May 8, 2015, at

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which Benjamin J. Siegel appeared for Ms. Cervantes, and Lynn Garcia appeared for the District.

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The motion is granted in part, as explained below.

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I.

BACKGROUND

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For purposes of this motion, the court assumes the complaint’s allegations are true.

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Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Lily Cervantes is an Hispanic woman

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of Mexican national origin born in 1954. First Am. Compl. ¶ 11, ECF No. 5. She speaks English

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as her first language. Id. ¶ 14. She began working for the District in 2007 as Director of

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Employee/Labor Relations, id. ¶ 8, and was promoted in 2009 to Executive Director of Legal

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Affairs, id. ¶ 9. Her responsibilities as Executive Director included, for example, advising the

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District’s Superintendent, his cabinet, the human resources department, and site administrators on

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a variety of legal questions, including personnel matters, labor relations, and disciplinary matters.

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Id. She also ensured the District’s compliance with federal law, including laws related to

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disability accommodations and medical leave, helped draft personnel policies, investigated

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employee and labor union complaints, and helped draft employment agreements. Id.

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Cervantes alleges she was highly regarded for her exemplary job performance.

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Id. ¶ 10. Her complaint includes quotations from a January 2011 performance evaluation praising

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her insight and “stellar behavior,” noting the “substantial impact” she made in training, and

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describing her excellent work with labor groups and efforts to “keep[] the District out of

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litigation.” Id.

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In 2012, the District hired Steven Lowder, a white male, as Superintendent.

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Id. ¶ 12. Lowder treated Cervantes differently than he treated other employees. Id. ¶ 13. He

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focused on her without justification and criticized her systematically. Id. ¶ 15. To describe his

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behavior, the complaint relates two anecdotes. First, after a public speaking engagement, Lowder

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suggested Cervantes spoke inarticulately and with a Spanish accent; however, English is

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Cervantes’s first language, and she is very articulate. Id. ¶ 14. Lowder compared Cervantes to

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another Hispanic woman who spoke English inarticulately as a second language, and he
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suggested this second woman “gets it” and “knows what to do.” Id. Second, the complaint

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describes how Lowder yelled at Cervantes and second-guessed her legal opinions on simple and

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well-established questions. Id. ¶ 15. He demanded she research basic legal issues. Id. At least

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once Lowder consulted with an outside attorney, who concurred with Cervantes’s opinion. Id.

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Aside from these specific allegations, the complaint also charges Lowder with

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unspecified acts of discrimination and prejudice. See, e.g., id. ¶ 13 (“Mr. Lowder . . . made

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several discriminatory and prejudicial comments.”); id. ¶ 14 (“Mr. Lowder made other sexually

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and racially charged, and inappropriate, statements to plaintiff and others.”); id. ¶ 16 (“Mr.

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Lowder also mistreated other employees based on their race, sex, and/or age.”). In addition to

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Lowder’s alleged mistreatment of Cervantes in particular, the complaint alleges without detail his

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mistreatment of other District employees. Id. ¶ 16. “On information and belief,” several of these

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“older, minority, and/or female employees” have filed complaints against him, have provided the

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District’s board with information about his discriminatory conduct, and have alleged he made

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employment decisions on the basis of race, gender, and age. Id.

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On April 1, 2014, Cervantes received a notice her employment would be

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terminated as of July 1, 2014. Id. ¶ 17. The notice explained the District lacked funds and work

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for her. Id. According to an unnamed “high level managerial employee,” however, these reasons

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were pretext for Lowder’s desire to be rid of her on account of her race, sex, and age. Id. ¶ 18.

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Cervantes’s last day at the District was July 1, 2014. Id. ¶ 19.

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Cervantes filed her original complaint in this court on January 9, 2015, ECF No. 1,

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and the first amended complaint on February 13, 2015, ECF No. 5. She alleges discrimination on

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the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

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§ 2000e, et seq.; discrimination on the basis of age in violation of the Age Discrimination in

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Employment Act (ADEA), 29 U.S.C. § 621, et seq.; and discrimination on the basis of race, sex,

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and age in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov’t

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Code § 12900 et seq. Her complaint seeks damages, attorneys’ fees, costs, pre- and post-

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judgment interest, reinstatement, and injunctive relief. First Am. Compl. 11–12.

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Before filing its motion to dismiss, the District corresponded with Cervantes’s

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counsel, and she agreed to dismiss her third claim for relief under the ADEA, her request for

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liquidated damages under the ADEA, and her request for reinstatement.2 See Mem. P. & A. Mot.

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Dismiss (Mem.) 3, ECF No. 9-1; Schachter Decl. Exs. A, B, ECF No. 9-2; Opp’n 4, ECF No. 10.

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In light of this agreement, Cervantes’s claim for relief under the ADEA, her request for liquidated

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damages under the ADEA, and her request for reinstatement are dismissed.

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On March 30, 2015, the District filed this motion. Mot. Dismiss, ECF No. 9. The

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District’s motion is straightforward: it argues the complaint includes insufficient factual

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allegations to state a claim for discrimination, whether on the basis of race, sex, or age, regardless

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of its foundation in federal or state law. Mem. 5–6. Cervantes filed an opposition, Opp’n, ECF

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No. 10, and the District replied, Reply, ECF No. 14. In its reply, the District withdrew its motion

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with respect to Cervantes’s federal and California race discrimination claims, id. at 1, leaving

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intact its challenges of her federal- and state-law claims for discrimination on the basis of sex and

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her state-law claim for discrimination on the basis of age, id. at 2–3.

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II.

LEGAL STANDARD

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A defendant may move to dismiss for “failure to state a claim upon which relief

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can be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks

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a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory.

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Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court

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assumes these factual allegations are true and draws reasonable inferences from them. Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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A complaint need contain only a “short and plain statement of the claim showing

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that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than

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unadorned accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal,

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The parties agree Cervantes’s agreement to dismiss her request for reinstatement does
not impair her ability to pursue other forms of relief, including, for example, “front pay.” See
Mem. P. & A. Mot. Dismiss 3, ECF No. 9-1 (citing Cassino v. Reichhold Chems. Inc., 817 F.2d
1338, 1346 (9th Cir. 1987)); Opp’n 4, ECF No. 10 (same).
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556 U.S. at 678. In the same vein, conclusory or formulaic recitations of a cause’s elements do

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not alone suffice. Id. (quoting Twombly, 550 U.S. at 555). Evaluation under Rule 12(b)(6) is a

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context-specific task drawing on “judicial experience and common sense.” Id. at 679.

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III.

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DISCUSSION
For purposes of this order, federal and California employment discrimination laws

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do not materially differ, and California courts consider federal decisions in resolving cases of

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discrimination under the FEHA. Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000). The

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California Supreme Court has expressly adopted the burden-shifting test of McDonnell Douglas

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Corp. v. Green. Id. (citing 411 U.S. 792 (1973)). That familiar test proceeds in three steps, as

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described by the United States Supreme Court in a subsequent case:
First, the plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant “to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.” Third, should the defendant
carry this burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.

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Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981) (quoting McDonnell

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Douglas, 411 U.S. at 802).

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Here, the District argues the complaint states no prima facie case of

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discrimination. Mem. 5–6. The particulars of a prima facie case of discrimination vary from one

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case to the next, Burdine, 450 U.S. at 253 n.6; Guz, 24 Cal. 4th at 355, but the California and

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United States Supreme Courts have endorsed a similar, general showing: the plaintiff, a member

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of a protected class, was qualified for a position and suffered an adverse employment action in

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circumstances that suggest a discriminatory motive. See McDonnell Douglas, 411 U.S. at 802;

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Guz, 24 Cal. 4th at 355. Ultimately, plaintiffs must commonly resort to circumstantial evidence

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of a discriminatory motive. See, e.g., U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

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716 (1983) (“There will seldom be ‘eyewitness’ testimony as to the employer’s mental

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processes.”). Even at summary judgment, the evidentiary burden is “minimal.” Wallis v. JR.

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Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
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The McDonnell Douglas requirements for a prima facie case do not supplant the

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pleading standard applicable in resolving a Rule 12(b)(6) motion. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 511 (2002); Banks v. Yoke’s Foods, Inc., No. 14-0319, 2014 WL 7177856, at

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*5 (E.D. Wash. Dec. 16, 2014); cf. Twombly, 550 U.S. at 569–70 (explaining the consistency of

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Swierkiewicz of its holding); but see Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.

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2009) (“We have to conclude, therefore, that because [Conley v. Gibson, 355 U.S. 41 (1957),] has

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been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar

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as it concerns pleading requirements and relies on Conley.”).3 A motion to dismiss tests only the

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complaint’s “legal sufficiency,” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); in this

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context, a complaint must survive a motion to dismiss if it pleads a plausible prima facie case of

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discrimination, Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 & n.2 (9th Cir. 2012)

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(citing with approval Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[T]he

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plaintiff must give enough details about the subject-matter of the case to present a story that holds

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together. . . . [I]n many straightforward cases, it will not be any more difficult today for a plaintiff

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to meet that burden than it was before the [Supreme] Court’s recent decisions.”)). District courts

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in this circuit regularly look to the elements of a prima facie case to inform a decision on a

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motion to dismiss. See, e.g., Jinadasa v. Brigham Young Univ.-Hawaii, No. 14-00441, 2015 WL

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3407832, at *3 (D. Haw. May 27, 2015) (noting “the elements of a prima facie case . . . are a

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useful tool in assessing whether [the plaintiff] meets the requirement in Rule 8(a)” and collecting

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cases).

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Under both federal and California law, a prima facie case of discrimination on the
basis of sex consists of evidence of membership in a protected class, satisfactory job

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In any event, the court declines to find the Supreme Court has overruled Swierkiewicz
silently by implication. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We reaffirm that
if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the [lower courts] should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.” (citation and quotation
marks omitted)).

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performance, an adverse employment action, and evidence of discriminatory motive.4 See, e.g.,

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Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Vasquez v. Cnty. of

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L.A., 349 F.3d 634, 640 (9th Cir. 2003); Guz, 24 Cal. 4th at 355. The California-law

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requirements for an age-discrimination claim are the same, but require the plaintiff be forty years

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of age or older at the time of the adverse employment action. Stevenson v. Superior Court, 16

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Cal. 4th 880, 905 (1997).

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Cervantes’s allegations frame a plausible case of discrimination on the basis of her

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sex or age. She alleges (1) she is a woman born in 1954 who performed her job well, First Am.

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Compl. ¶¶ 10–11, (2) Lowder made “discriminatory and prejudicial comments,” id. ¶ 13, “treated

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[her] differently on the basis of her race, sex, and/or age,” id., “mistreated other employees based

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on their race, sex, and/or age,” id. ¶ 16, demoted other employees over forty years old, id., and

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other “older, minority, and/or female employees” have filed complaints against him, id.;

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(3) Lowder unduly focused on her, criticized her, yelled at her at meetings, questioned her well-

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founded legal opinions, and second-guessed her work, id. ¶ 15; (4) she was terminated, id. ¶ 19;

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and (5) a managerial employee told her Lowder terminated her based on sex and age, in addition

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to race, id. ¶¶ 17–18. Her theory is straightforward: She, a woman over forty, was qualified for

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her job and was terminated in circumstances that suggest Lowder’s discriminatory motive.

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Cervantes need not hypothesize whether Lowder’s criticisms, mistreatment, and

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mistrust were founded on her age or sex, or a combination of these factors; they are not mutually

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exclusive. See Salach v. Level (3) Commc’ns, Inc., No. 03-3712, 2004 WL 2203471, at *9–10

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(N.D. Cal. Sept. 24, 2004). The complaint embodies a “short and plain statement” of her case and

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affords the District adequate notice of the action it must defend.

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The defendants’ concern that plaintiff will not be forthcoming with the information

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supporting her claims can be addressed by a discovery plan to prevent prejudice to the District’s

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litigation of the case.

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Courts commonly look for evidence the employer filled the position with a similarly
qualified member of the opposite sex or continued the search for applicants of comparable
qualifications. See, e.g., Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th
Cir. 2005).
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IV.

CONCLUSION

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The court orders as follows:

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(1) Plaintiff’s claims for relief under the ADEA, request for liquidated damages

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under the ADEA, and request for reinstatement are DISMISSED with prejudice.

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(2) In all other respects, the motion to dismiss is DENIED.

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(3) The District shall file an answer within fourteen days.

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(4) The parties shall file a joint status report no less than seven days before the

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status conference currently set for August 13, 2015. See Minute Order, ECF No. 16. In this

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report the parties shall propose a discovery plan to ensure the defendants’ prompt discovery of the

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information underlying plaintiff’s allegations.

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This order resolves ECF No. 9.

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IT IS SO ORDERED.

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DATED: June 3, 2015.

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UNITED STATES DISTRICT JUDGE

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