Bellusa v. Board of Education of the Oakland UnifiedSchool District et al

Filing 54

SECOND AMENDED ORDER RE: DEFENDANTS MOTIONS TO DISMISS (Dkt. Nos. 44, 46). Signed by Magistrate Judge Jacqueline Scott Corley on 3/21/2014. (ahm, COURT STAFF) (Filed on 3/21/2014)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 JONATHAN BELLUSA, Plaintiff, 14 15 v. Case No.: C-13-2930 JSC SECOND AMENDED ORDER RE: DEFENDANTS’ MOTIONS TO DISMISS (Dkt. Nos. 44, 46) 16 17 18 19 BOARD OF EDUCATION OF THE OAKLAND UNIFIED SCHOOL DISTRICT, et al., Defendants. 20 21 Plaintiff Jonathan Bellusa, a sergeant with the Oakland Unified School District (the 22 “District”) Police Department, filed this civil rights action alleging retaliation in violation of 23 state and federal law by the Board of Education for the District, District General Counsel 24 Jacqueline Minor, District Superintendent Anthony Smith, former District Chief of Police 25 Peter Sarna, and interim District Chief of Police James Williams (collectively, “Defendants”). 26 27 Defendants move to dismiss three of Plaintiff’s five claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Having carefully considered the 28 1 1 parties’ briefing, and having had the benefit of oral argument on March 20, 2014, the Court 2 DENIES in part and GRANTS in part Defendants’ motion without leave to amend. 3 4 BACKGROUND The Court summarized the factual allegations underlying this action in detail in its 5 December 9, 2013 Order (Dkt. No. 42) which it incorporates by reference. In short, Plaintiff 6 alleges that the District and its employees engaged in various acts of retaliation against 7 Plaintiff in response to (1) his complaints regarding racist and derogatory remarks by Sarna, 8 and (2) his refusal to testify untruthfully about a District police shooting. 9 In its previous Order dismissing the FAC in part, the Court denied Defendants’ motion Northern District of California to dismiss the Title VII retaliation claim against the District and the Section 1983 retaliation 11 United States District Court 10 claim against Williams. The Court dismissed the Section 1983 retaliation claim as to Smith, 12 Sarna, and Minor, the Labor Code Section 1102.5 retaliation claim against the District, and 13 the Education Code, Bane Act, and intentional infliction of emotional distress claims against 14 all Defendants. Plaintiff subsequently filed his Second Amended Complaint (“SAC”). 15 Defendants now move to dismiss three of the remaining five claims. 16 17 LEGAL STANDARD A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege 18 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 19 Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability 20 requirement” but mandates “more than a sheer possibility that a defendant has acted 21 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and 22 citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] 23 factual allegations in the complaint as true and construe[s] the pleadings in the light most 24 favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 25 1025, 1031 (9th Cir. 2008). “[D]ismissal may be based on either a lack of a cognizable legal 26 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Johnson v. 27 Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and 28 2 1 citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) 2 authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), 3 4 under which a party is only required to make “a short and plain statement of the claim 5 showing that the pleader is entitled to relief,” a “pleading that offers ‘labels and conclusions’ 6 or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 7 678 (quoting Twombly, 550 U.S. at 555.) “[C]onclusory allegations of law and unwarranted 8 inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 9 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) Northern District of California (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause 11 United States District Court 10 of action, but must contain sufficient allegations of underlying facts to give fair notice and to 12 enable the opposing party to defend itself effectively.”). The court must be able to “draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 663. “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 15 specific task that requires the reviewing court to draw on its judicial experience and common 16 sense.” Id. at 663-64. DISCUSSION 17 Defendants move again to dismiss the claims for retaliation in violation of 42 U.S.C. 18 19 Section 1983 (second claim for relief); retaliation in violation of Section 1102.5(c) for 20 Plaintiff’s resisting demands that he alter his testimony (fourth claim for relief); and violation 21 of the Reporting by School Employees of Improper Government Activities Act, California 22 Education Code Section 44114 (fifth claim for relief). 1 23 I. Plaintiff’s second cause of action alleges that Chief Williams retaliated against him in 24 25 Section 1983 Retaliation by Chief Williams violation of 42 U.S.C. Section 1983 for exercising his First Amendment right to speak out 26 1 27 28 Plaintiff initially identified Section 44113 as the source of his claim under the Reporting by School Employees of Improper Government Activities Act. (SAC ¶ 20.) In his Opposition, Plaintiff concedes that the SAC was “inartfully pled” to the extent it stated a claim under Section 44113 because Section 44114 provides the “relevant legal basis” for the claim. (Dkt. No. 47 at 8.) 3 1 about a matter of public concern: Sarna’s racially discriminatory conduct. (SAC ¶ 86.) 2 Plaintiff alleges that as a result of the protected statements, Williams, without any 3 justification for doing so, subjected Plaintiff to a District internal affairs investigation. (SAC ¶ 4 45.) Defendants contend that an internal affairs investigation cannot constitute an adverse 5 employment action. Defendants’ motion to dismiss the Section 1983 claim against Williams. (Dkt. No. 42 at 11.) 8 Despite that ruling, Defendants move again to dismiss that claim without first seeking leave 9 to file a motion for reconsideration. See Civil L.R. 7-9(a) (“No party may notice a motion for 10 reconsideration without first obtaining leave of Court to file the motion.”) For this reason the 11 Northern District of California In its Order resolving Defendants’ original motion to dismiss, the Court denied 7 United States District Court 6 Court denies the renewed motion to dismiss the retaliation claim against Williams. 12 Defendants’ failure to raise the “adverse employment action” issue in their first motion 13 does not allow them to move for reconsideration of the Court’s ruling. To be entitled to bring 14 a motion for reconsideration in the first place a party must show that since the court’s ruling a 15 material difference in fact or law has emerged or that the court failed to consider facts or 16 dispositive legal arguments presented to the court. Civil L.R. 7-9(b). Here, Defendants 17 simply failed to make an argument that they could have made. Such argument will have to 18 wait until a motion for summary judgment or trial. Therefore, the motion to dismiss the 19 Section 1983 retaliation claim is denied. 20 II. 21 California Labor Code Section 1102.5(c) against the District Plaintiff’s fourth cause of action alleges that in March 2012 the attorneys hired by the 22 District to represent Plaintiff and fellow officer Bhatt in a wrongful death action demanded 23 that Plaintiff commit perjury and that “official and agents” of the District retaliated against 24 him because of his refusal to do so. (SAC ¶ 90.) Section 1102.5(c) provides that “an 25 employer, or any person acting on behalf of an employer, shall not retaliate against an 26 employee for refusing to participate in an activity that would result in a violation of state or 27 federal statute, or a violation of or noncompliance with a local, state, or federal rule or 28 regulation.” To establish a prima facie case of retaliation under California’s whistleblower 4 1 statute, a plaintiff must establish: “(1) he engaged in protected activity; (2) his employer 2 thereafter subjected him to an adverse employment action; and (3) a causal link between the 3 two.” Turner v. City and County of San Francisco, 892 F. Supp. 2d 1188, 1199 (N.D. Cal. 4 2012). The parties’ dispute here concerns whether Plaintiff has pled a causal connection 5 between the protected activity and any adverse employment actions. 6 In the context of Section 1102.5, an adverse employment action is present when the 7 action is “one that materially affects the terms, conditions, or privileges of employment.” 8 Dowell v. Contra Costa County, 928 F. Supp. 2d 1137, 1155 (N.D. Cal. 2013). Plaintiff’s 9 allegation that the District rescinded his paid administrative leave and deprived him of salary 10 Northern District of California United States District Court 11 and benefits indisputably constitute an adverse employment action. The District nonetheless contends that Plaintiff’s Section 1102.5 claim fails as a matter 12 of law because Plaintiff cannot satisfy the third element of his prima facie case: a causal link 13 between the protected activity and the adverse employment actions. “Causation may be 14 inferred from circumstantial evidence, including the employer’s knowledge that the 15 [employee] engaged in protected activities and the proximity in time between the protected 16 action and allegedly retaliatory employment decision.” Dowell, 928 F. Supp. 2d at 1156 17 (internal quotation marks omitted). “Essential to a causal link is evidence that the employer 18 was aware that the plaintiff had engaged in the protected activity.” Cohen v. Fred Meyer, 19 Inc., 686 F.2d 793, 796 (9th Cir. 1982). The District insists that Plaintiff fails to sufficiently 20 allege that the District was aware of Plaintiff’s protected activity and thus has not pled a 21 causal link. The Court disagrees. 22 Viewing the allegations in the light most favorable to Plaintiff, the District’s attorneys 23 threatened that if Plaintiff did not make his testimony consistent with Bhatt’s account of the 24 shooting, they would pursue perjury charges against him, and the District would withdraw its 25 defense and indemnity of him and hold him liable for attorney’s fees. The attorneys 26 continually requested meetings with Plaintiff, and Plaintiff repeatedly refused. The District 27 then withdrew Plaintiff’s paid administrative leave. These facts plausibly allege that the 28 District withdrew Plaintiff’s paid leave because of his refusal to cooperate with District 5 1 attorneys and make his testimony consistent with Bhatt’s. Defendants’ motion to dismiss the 2 Section 1102.5(c) claim is therefore denied. The District’s reliance on Lynn v. Superior Court, 180 Cal. App. 3d 346, 348 (1986) is 3 4 unavailing. The only question in Lynn was whether a client could be held vicariously liable 5 for his attorney’s tortious conduct. The court held that because attorneys act in the capacity 6 of independent contractors, their conduct cannot be imputed to their clients. Here, Plaintiff is 7 seeking to hold the District liable for its own conduct; namely, eliminating Plaintiff’s paid 8 administrative leave. The allegations regarding the attorneys’ conduct support a plausible 9 inference that the District’s conduct was retaliatory, but their conduct is not the conduct for Northern District of California which Plaintiff seeks to hold the District liable. 11 United States District Court 10 III. California Education Code Section 44114 against Minor and Williams Section 44114(c) of the Reporting by School Employees of Improper Government 12 13 Activities Act prohibits a person from acts of “reprisal, retaliation, threats, coercion, or 14 similar acts against a public school employee.” Plaintiff’s fifth claim for relief alleges 15 Defendants Minor, Smith, Sarna, and Williams violated the Act in response to Plaintiff’s 16 disclosure of Sarna’s racist comments and Plaintiff’s refusal to give false testimony. (SAC ¶ 17 92.) 18 Defendants move to dismiss on five grounds: (1) Section 44114(c) subjects only 19 school districts to liability; (2) Plaintiff is not a public school “employee” as required and 20 defined by the Code; (3) Plaintiff has failed to plead facts showing that Defendants committed 21 the conduct alleged; (4) to the extent the claim relies on the conduct of counsel, the attorney’s 22 comments are protected by privilege; and (5) to the extent Plaintiff relies on the conduct of 23 counsel, the attorneys are not public school “employer[s]” as required under Section 44114. 24 Plaintiff concedes that his Section 44114 claim should be dismissed as to Smith. (Dkt. 25 No. 47 at 9.) In addition, Plaintiff does not contest the motion to dismiss filed by Sarna. 26 (Dkt. No. 49.) Thus, at issue before the Court is whether Plaintiff sufficiently states a Section 27 44114 claim against Minor and Williams. 28 6 1 A. Section 44114(c) Subjects Individuals to Liability 2 Defendants’ contention that Section 44114(c) “subjects only school districts to 3 liability” (Dkt. No. 50 at 8) is incorrect. Section 44114(c) imposes liability on a “person who 4 intentionally engages in reprisal, retaliation, threats, coercion, or similar acts against a public 5 school employee . . . for making a protected disclosure.” Cal. Educ. Code § 44114(c) 6 (emphasis added). Defendants’ reliance on Harnett v. Crosier, 205 Cal. App. 4th 685, 689 7 (2012) and Conn v. Western Placer Unified School Dist., 186 Cal. App. 4th 1163, 1177 8 (2010) is misplaced. The Harnett court held that a Section 44114(c) claim can be brought 9 against a person who is not a “management employee.” 205 Cal. App. 4th at 694. Conn Northern District of California merely held that a Section 44114(c) claim can be brought against a school district, not that 11 United States District Court 10 Section 44114(c) subjects only districts to liability notwithstanding the plain language of the 12 statute. 186 Cal. App. 4th at 1175. It follows that the claim can be brought against Minor 13 and Williams in their individual capacities. 14 B. Plaintiff may be an “Employee” as Defined by Section 44114 15 Section 44114 prohibits retaliatory acts against “public school employees.” Cal. Educ. 16 Code § 44114(c). A “public school employee” is “a person employed by a public school 17 employer except persons elected by popular vote, persons appointed by the Governor of this 18 state, management employees, and confidential employees.” Cal. Educ. Code § 44112(a); 19 Cal. Gov’t. Code § 3540.1(j) (emphasis added). A “[m]anagement employee” is “an 20 employee in a position having significant responsibilities for formulating district policies or 21 administering district programs.” Cal. Gov’t. Code § 3540.1(g). 22 Defendants argue Plaintiff was a management employee, thus precluding him from 23 stating a claim under Section 44114. The allegations of the complaint do not compel such a 24 conclusion. Plaintiff was “promoted to police sergeant in 2008” (SAC ¶ 16), was “stripped of 25 his supervisory responsibilities” following his complaints regarding Sarna (Id. ¶ 32), and was 26 investigated for “breach of supervision responsibilities.” (Id. ¶ 45). Although the SAC’s 27 allegations suggest that Plaintiff was a supervisory employee, they do not establish that he 28 was a management employee. “Unlike management employees, a supervisory employee is 7 1 not exempt from the definition of employee in Government Code section 3540.1 and hence is 2 not exempt from liability under section 44113” Conn, 186 Cal. App. 4th at 1176 or barred 3 from bringing a claim under Section 44114. 4 C. Failure to Allege Sufficient Facts 5 While the requirements for a claim for liability under Section 44114(c) are 6 straightforward—an allegation that a person intentionally retaliated against a public school 7 employee for making a protected disclosure—Plaintiff cannot state such a claim without any 8 factual allegations supporting the claim. See Iqbal, 556 U.S. at 678; see also Starr v. Baca, 9 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not Northern District of California simply recite the elements of a cause of action, but must contain sufficient allegations of 11 United States District Court 10 underlying facts to give fair notice and to enable the opposing party to defend itself 12 effectively.”). 13 1. Plaintiff Fails to Allege Facts Supporting the Claim Against Minor 14 Plaintiff contends that Minor acted in violation of Section 44114(c) in response to both 15 Plaintiff’s disclosure of Sarna’s racist comments and his refusal to alter his testimony. 16 Defendants first argue that Plaintiff has not alleged facts supporting an inference that Minor 17 retaliated against Plaintiff for his disclosure of Sarna’s racist conduct. The Court agrees. The 18 sole allegation against Minor subsequent to the disclosure of Sarna’s remarks is that Minor 19 instructed Pete Peterson to place Plaintiff on administrative leave for medical reasons. (SAC 20 ¶ 43.) As previously explained, because Plaintiff alleges that his own doctor placed him on 21 medical leave, this conduct cannot support the basis of a section 4114 claim against Minor. 22 Plaintiff’s claim against Minor also fails to the extent it is based on Plaintiff’s refusal 23 to commit perjury. Plaintiff does not identify any act of retaliation by Minor; instead, he 24 identifies the District’s attorneys’ threats and argues that Minor must have directed the 25 attorneys to make the threats and that those threats constitute Minor’s retaliation. This 26 allegation is insufficient for several reasons. 27 28 First, it is not reasonable to infer that Minor told the attorneys to make the threats merely because she is the District’s General Counsel. Plaintiff’s argument that the attorneys 8 1 may be considered the “cat’s paw” for Minor such that “Minor may be held responsible for 2 [their] unlawful conduct” (Dkt. No. 47 at 14) is unpersuasive. The “cat’s paw” theory is 3 generally applied to impute the animus of a subordinate employee to the ultimate 4 decisionmaker behind the adverse employment action where the decisionmaker “acted as a 5 rubber stamp, or the ‘cat’s paw,’ for the subordinate employee’s prejudice.” Laxton v. Gap 6 Inc., 333 F.3d 572, 584 (5th Cir. 2003). Plaintiff fails to offer any support for the proposition 7 that the theory can be inverted to impute a superior’s animus to a subordinate employee. 8 Further, even if the theory can be inverted, Minor’s position of superiority, alone, does not 9 suffice to support an inference that the attorneys acted as the “cat’s paw” for Minor’s Northern District of California prejudice. See Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir. 2007) (holding that bias will 11 United States District Court 10 be imputed where the biased party “influenced, affected, or was involved in the adverse 12 employment decision”). Because Plaintiff has not alleged facts sufficient to infer that Minor 13 directed the attorneys’ conduct, Minor cannot be held liable for their conduct. Second, even if Minor could be charged with directing such threats, Plaintiff does not 14 15 address Defendants’ argument that the claim would be barred by the litigation privilege of 16 California Civil Code section 47(b). Section 47(b) “establishes an absolute privilege” for 17 statements made in a legal proceeding and “bars all tort causes of action based on them except 18 a claim for malicious prosecution.” Brown v. Dep’t of Corrections, 132 Cal. App. 4th 520, 19 525 (2005) (internal quotation marks omitted); see Oren Royal Oaks Venture v. Greenberg, 20 Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1168 (1986) (“The privileges of Civil Code 21 section 47, unlike evidentiary privileges which function by the exclusion of evidence . . . 22 operate as limitations upon liability.”). Unlike the Section 1102.5 claim where Plaintiff relies 23 on the attorneys’ statements as evidence for his claim, here, the statements provide an 24 essential element of the claim. Thus, the litigation privilege applies. Accordingly, the Court grants the motion to dismiss as to Minor. As Plaintiff does not 25 26 contend that he can identify conduct other than the threats as acts of reprisal by Minor, the 27 motion is granted without leave to amend. 28 // 9 1 2. Plaintiff Alleges Sufficient Facts Against Williams 2 The basis of Plaintiff’s Education Code Section 44114(c) claim against Williams is the 3 same as his Section 1983 retaliation claim: just three weeks after Plaintiff’s disclosure of 4 Sarna’s racial discrimination, Williams—without any justification for doing so—subjected 5 Plaintiff to an internal affairs investigation. (Id. ¶ 45.) Williams moves to dismiss this claim on the same ground as the Section 1983 6 7 retaliation claim; namely, that subjecting one to an internal affairs investigation is not an 8 adverse employment action. Section 44114(c) on its face, however, is not limited to actions 9 that constitute adverse employment action; instead, it prohibits “acts of reprisal, retaliation, Northern District of California threats, coercion or similar acts.” As Williams does not provide any analysis as to what 11 United States District Court 10 constitutes those acts under Section 44114(c), he has not met his burden of proving as a 12 matter of law that instigating an internal affairs investigation is not, under any circumstances, 13 an act of reprisal, retaliation, a threat, coercion or a similar act within the meaning of Section 14 44114(c). 15 Williams’s assertion that the SAC fails to allege facts that preclude the possibility that 16 the investigation was based on legitimate alternative explanations is beside the point. At this 17 stage, Plaintiff is not required to prove that no other reasonable basis for the investigation 18 existed or that Williams accused Plaintiff of lying; Plaintiff must merely plead facts that 19 plausibly support the claim for relief under Section 44114(c). As discussed above, Plaintiff’s 20 allegation that Williams initiated the internal affairs investigation without proper 21 justification” plausibly suggests that Williams retaliated against Plaintiff for his disclosure of 22 Sarna’s racist comments. CONCLUSION 23 For the reasons explained above, the Court: 24 25 • DENIES the motion to dismiss the Section 1983 retaliation claim against Williams; 26 • DENIES the motion to dismiss the Section 1102.5 whistleblower retaliation claim against the District; 27 28 • DENIES the motion to dismiss the Section 44114(c) claim as to Williams; 10 1 • without leave to amend; and 2 3 GRANTS the motion to dismiss the Section 44114 claim as to Minor and Smith • GRANTS Sarna’s unopposed motion to dismiss in its entirety without leave to amend. 4 The remaining defendants shall answer the Second Amended Complaint within 30 days of 5 this Order. 6 This Order disposes of Docket Nos. 44 and 46. 7 IT IS SO ORDERED. 8 9 10 Northern District of California United States District Court 11 Dated: March 21, 2014 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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