Guerrero v. California Department of Corrections & Rehabilitation et al
Filing
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ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT AND VACATING HEARING by Judge Alsup re 103 Motion, 110 Stip. (whalc1, COURT STAFF) (Filed on 10/29/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VICTOR GUERRERO,
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Plaintiff,
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For the Northern District of California
United States District Court
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No. C 13-05671 WHA
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS
AND REHABILITATION; STATE PERSONNEL
BOARD; and, in their official capacities,
JEFFREY BEARD, Secretary of the California
Department of Corrections and Rehabilitation;
SUZANNE AMBROSE, Executive Officer of State
Personnel Board; K. CARROLL, Lieutenant; D.
SHARP, Sergeant; BARBARA LEASHORE,
Hearing Officer; C. HESTER, Lieutenant; V.
MAYOL, Lieutenant; S. COX, Lieutenant; V.
MYERS, Sergeant; JOHN (or JANE) DOES 1-100,
all of whose true names are unknown,
ORDER GRANTING MOTION
FOR LEAVE TO FILE THIRD
AMENDED COMPLAINT AND
VACATING HEARING
Defendants.
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INTRODUCTION
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In this employment-discrimination action, plaintiff moves for leave to file a third amended
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complaint. For the reasons stated herein, the motion is GRANTED. The November 20 hearing is
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hereby VACATED.
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STATEMENT
Prior orders recounted the history of this action so it will not be repeated herein
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(Dkt. Nos. 52, 104). In short, plaintiff Victor Guerrero, identified as Latino, applied to be a
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correctional officer with defendant California Department of Corrections and Rehabilitation
(“CDCR”). On his questionnaire, he admitted to previously using a false social security number.
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As a result, he was withheld from the list of eligible candidates, a decision he appealed to
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defendant State Personnel Board (“SPB”). CDCR’s decision was affirmed by SPB. He then
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applied again and was withheld again. He commenced this lawsuit in December 2013.
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A May 2014 order, inter alia, granted CDCR’s motion to dismiss the equal protection
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claim and granted SPB’s motion to dismiss the Title VII claim. A July 2014 order then denied
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without prejudice plaintiff’s motion for leave to file a third amended complaint to allow both
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sides the benefit of discovery. A September 2014 order denied two motions for summary
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judgment (Dkt. Nos. 52, 79, 104).
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The operative pleading alleges a procedural due process claim against CDCR and SPB,
and a Title VII claim against CDCR. The proposed third amended complaint seeks to add a Title
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For the Northern District of California
United States District Court
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VII claim against SPB and an equal protection claim against CDCR and SPB. Fact discovery
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closes in January 2015 and trial begins in May 2015.
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ANALYSIS
The original deadline for seeking pleading amendments was in May 2014 (Dkt. No. 40).
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Plaintiff must thus demonstrate “good cause” for the amendment, pursuant to Rule 16(b).
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The proposed amendment should be denied if it prejudices the opposing party, is sought in bad
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faith, produces an undue delay, or is futile. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
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608 (9th Cir. 1992).
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1.
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Mr. Guerrero has been diligent in pursuing the proposed claims and there is no evidence
GOOD CAUSE.
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of undue delay, prejudice, or bad faith. When Mr. Guerrero commenced this action in December
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2013, the complaint alleged, inter alia, equal protection and Title VII claims. Those claims (and
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others) were dismissed in May 2014. On May 29, plaintiff moved for leave to amend those
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claims. The motion was denied without prejudice and plaintiff was given until September 30 to
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file a renewed motion so that both sides would have the benefit of some discovery. Mr. Guerrero
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timely filed the instant motion. Accordingly, this order finds good cause to modify the schedule
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for the proposed amendment (Dkt. Nos. 1, 52, 79, 85).
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The central dispute raised herein is whether it would be futile to add a Title VII claim
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against SPB and/or an equal protection claim against CDCR and SPB. Both proposed claims are
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addressed below.
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2.
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An entity that is not the direct employer of a plaintiff may nevertheless be liable under
TITLE VII AGAINST SPB.
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Title VII if it “interfered with the employee’s relationship” or “had some peculiar control over the
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employee’s relationship with the direct employer.” Anderson v. Pacific Maritime Association,
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336 F.3d 924, 931–32 (9th Cir. 2003).
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In the oft-cited decision, Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1342
(D.C. Cir. 1973), a male nurse sued a private nonprofit hospital under Title VII, even though the
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For the Northern District of California
United States District Court
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nurse worked for the patients pursuant to an arrangement whereby patients would request services
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via a nursing registry. Title VII was read expansively to prohibit unlawful discrimination beyond
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the confines of “direct employment.” The District of Columbia Circuit stated that because the
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hospital controlled the premises and blocked access to patients on at least two occasions, it
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brought itself “within the strictures of Title VII.” Procedurally, however, the trial court erred in
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sua sponte granting summary judgment for the plaintiff when the defendant had not yet answered
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the complaint and no oral argument was heard. Id. at 1344.
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In Anderson, our court of appeals held that a nonprofit association of shipping companies
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was not liable for discrimination under Title VII. 336 F.3d at 925–27, 932. The nonprofit
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association had no direct role in resolving grievances and its involvement was “too attenuated” to
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constitute “interference” with the employment relationship.
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In his second amended complaint, Mr. Guerrero alleged that question number 75 on
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CDCR’s questionnaire had a disproportionate impact on Latinos. In May 2014, the Title VII
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claim against SPB was dismissed because the second amended complaint sought money from
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SPB for only performing its state function. The Title VII claim against CDCR remains scheduled
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for trial.
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Now, the proposed third amended complaint seeks to re-introduce a Title VII claim
against SPB, alleging that SPB promulgated the rule used by CDCR to disqualify Mr. Guerrero,
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SPB was “directly involved in” CDCR’s selection procedures, and “retained authority over
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CDCR’s selection process.” SPB also allegedly upheld CDCR’s use of question number 75 to
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disqualify Mr. Guerrero and allegedly failed to exercise sufficient oversight over CDCR’s
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employment practices. Mr. Guerrero further argues that complete relief cannot be afforded
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without joinder of SPB because he seeks, in pertinent part, injunctive relief within the purview of
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SPB (Third Amd. Compl. ¶¶ 34–35, 38–39, 42–43, 45, 74, 76–78).
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SPB does not dispute that it was tasked with “enforcing the civil service statutes,”
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“provid[ing] guidance to state agencies and departments in administering the civil service laws,”
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“reviewing disciplinary actions,” hearing appeals,” and “review[ing] a particular department’s
examination or hiring practices” (Opp. 3–4). SPB instead argues that Mr. Guerrero has not
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For the Northern District of California
United States District Court
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alleged facts showing that SPB is responsible for “every hiring decision” by CDCR.
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SPB’s narrow view of liability under Title VII is unpersuasive at this juncture. The new
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allegations suffice to state a Title VII claim against SPB. It, of course, remains to be seen
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whether this claim would survive trial on the merits. Nevertheless, plaintiff’s motion for leave to
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add a Title VII claim against SPB is GRANTED.
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3.
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“Plaintiffs may prevail on their equal protection claim by showing that a class that is
EQUAL PROTECTION.
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similarly situated has been treated disparately.” Arizona Dream Act Coalition v. Brewer, 757
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F.3d 1053, 1063–65 (9th Cir. 2014) (internal quotation marks omitted). When rational basis
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review applies, the disparate treatment must be “rationally related to a legitimate state interest.”
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“[A] classification must be upheld against [an] equal protection challenge if there is any
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reasonably conceivable state of facts that could provide a rational basis for the classification.”
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Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotation marks omitted). (To be clear, this is
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not a class action or putative class action. This individual dispute concerns class treatment in the
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equal protection context.)
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The equal protection claim in the second amended complaint was dismissed in May 2014,
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because the allegations therein were highly conclusory. Now, the proposed third amended
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complaint seeks to re-introduce an equal protection claim after some discovery has been taken.
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The third amended complaint alleges that defendants treated individuals who once used a
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false social security number for the purpose of obtaining and maintaining employment, differently
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than those similarly situated, without any rational basis. Alternatively, the pleading alleges that
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defendants treated those who “recently” used a false social security number, differently without
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any rational basis. The pleading further alleges that defendants’ policy and/or practice of
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disqualifying individuals who once used a false social security number is not rationally related to
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a legitimate state interest (Third Amd. Compl. ¶¶ 82–87). Defendants argue that adding an equal
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protection claim would be futile for two reasons. Neither reason is persuasive.
Department of Agriculture, 553 U.S. 591, 607 (2008), which held that the “class-of-one” theory
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For the Northern District of California
First, defendants argue that Mr. Guerrero’s claim is barred by Engquist v. Oregon
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United States District Court
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of equal protection has no application in the public employment context. In other words,
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defendants contend that Mr. Guerrero’s claim must be only a class-of-one claim, which
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necessarily fails. Not so — it would be premature at this juncture to so conclude.
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In Engquist, the plaintiff alleged that the defendants discriminated against her on the basis
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of race, sex, and national origin, and she also brought a “class-of-one” claim alleging that she was
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fired for arbitrary, vindictive, and malicious reasons. At trial, the jury rejected the plaintiff’s
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claim of discrimination for membership in a suspect class but found in favor of plaintiff on the
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class-of-one claim. Our court of appeals reversed in part, concluding that the class-of-one theory
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of equal protection did not extend to the public employment context. The Supreme Court
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affirmed. Id. at 595–96, 609.
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Here, however, it is not readily apparent that Mr. Guerrero’s class-based equal protection
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claim fails. His proposed pleading alleges a class of similarly situated individuals that were
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allegedly treated disparately without any rational basis. Certainly, these allegations are without
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prejudice to defendants prevailing at trial on the merits.
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Second, defendants argue that their actions pass muster under rational basis review.
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On this point, both sides would benefit from further development of the record and triable issues
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remain. Accordingly, plaintiff’s motion for leave to add an equal protection claim is GRANTED.
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CONCLUSION
For the reasons stated herein, plaintiff’s motion is GRANTED. Plaintiff shall file the third
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amended complaint by NOVEMBER 3. Defendants have until NOVEMBER 17, 2014, to file their
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answers. The November 20 hearing is hereby VACATED. All existing deadlines remain in place,
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including the May 11, 2015, trial date.
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IT IS SO ORDERED.
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Dated: October 29, 2014.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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