Guerrero v. California Department of Corrections & Rehabilitation et al

Filing 52

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS FEDERAL CLAIMS AND DISMISSING ALL CLAIMS BROUGHT UNDER CALIFORNIA STATE LAW. Signed by Judge Alsup on 5/7/2014. (whalc3, COURT STAFF) (Filed on 5/7/2014)

1
2
3
4
5
6
7
8
9

IN THE UNITED STATES DISTRICT COURT

10

For the Northern District of California

United States District Court

FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
12
13

VICTOR GUERRERO,

14

Plaintiff,

15
16
17
18
19
20
21
22

No. C 13-05671 WHA

v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS & 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,

23

ORDER GRANTING
IN PART AND
DENYING IN PART
MOTIONS TO
DISMISS FEDERAL
CLAIMS AND
DISMISSING ALL
CLAIMS BROUGHT
UNDER CALIFORNIA
STATE LAW

Defendants.
/

24
25

INTRODUCTION

26

In this employment-discrimination action, defendants move to dismiss. For the foregoing

27

reasons, defendants’ motions as to plaintiff’s federal claims are GRANTED IN PART AND DENIED

28

IN PART.

On the other hand, plaintiff’s state-law claims are barred by the Eleventh Amendment

and are therefore DISMISSED.

1

STATEMENT

2

In or around 1990, plaintiff Victor Guerrero was brought to the United States from

3

Mexico at age eleven. He began working at fifteen, using a false social security number

4

(“SSN”). Two years later in 1997, plaintiff acquired a legitimate Individual Taxpayer

5

Identification Number (“ITIN”) from the Internal Revenue Service (“IRS”) to pay taxes.

6

Plaintiff acquired a legitimate SSN in 2007 once he obtained permanent resident status. He

7

became a United States citizen in 2010.

8
9

In August 2011, plaintiff applied for a position as a correctional officer with defendant
California Department of Corrections and Rehabilitation (“CDCR”). He passed the written
examination and physical agility tests and filled out an extensive background questionnaire. The

11
For the Northern District of California

United States District Court

10

questionnaire asked whether he “had or used a social security number other than the one . . . used

12

on this questionnaire.” He answered, “I found out that my legal status in this country was not

13

very well defined” and therefore did not have an SSN. Accordingly, “I invented a number and

14

used [it] to obtain work” (A.R. 47). A January 2012 letter from CDCR, signed by two

15

individually-named defendants, informed plaintiff that he was not eligible for the position of

16

correctional officer because he had failed to demonstrate “integrity, honesty, [and] good

17

judgment,” as required by State Personnel Board Rule 172. The letter went on to assert, inter

18

alia, that plaintiff had “committed identity theft for eight years [by] utilizing a social security

19

number of a United States citizen causing unknown ramifications for that person by having

20

income reported under their number which they were unaware of” (A.R. 2).

21

Plaintiff appealed to defendant State Personnel Board (“SPB”). In his appeal, plaintiff

22

stated that “[a]t the age of 17, . . . my parents first made me aware that I was an undocumented

23

worker and I also learned that the social security number they had provided me was fictitious”

24

(A.R. 85). This statement that his parents “provided” him with the false SSN contradicted his

25

previous statement to the CDCR.

26

SPB held an “informal hearing” and plaintiff was allowed to clarify any facts in his

27

record to hearing officer defendant Barbara Leashore (Opp. at 9–10, Dkt. No. 43). SPB

28

considered Leashore’s recommendation to affirm CDCR and eventually issued an August 2012
2

1

resolution affirming CDCR. SPB’s resolution acknowledged plaintiff’s argument that he did not

2

“steal another’s social security number,” but it concluded that plaintiff had nonetheless shown a

3

“knowing and willful disregard of the law” and therefore demonstrated “a lack of honesty,

4

integrity, and good judgment.” The resolution also accused plaintiff of misstating the year in

5

which he had received his legitimate SSN, and asserted that this misstatement was evidence of

6

“lack of thoroughness and accuracy, which are also issues of unsuitability under [S]ection 172”

7

(A.R. 116).

8
9

In 2013, plaintiff then re-applied for the correctional officer position with defendant
CDCR, but was again notified in October 2013 that he would be removed from the list of eligible
candidates. After receiving a right-to-sue letter from the Equal Employment Opportunity

11
For the Northern District of California

United States District Court

10

Commission “on the foregoing matters,” plaintiff brought this action against SPB (including its

12

individually-named officers in their official capacities) and CDCR (including its individually-

13

named officers in their official capacities) on December 9, 2013 (Sec. Amd. Compl. ¶¶ 3,

14

26–48).

15

The second amended complaint, the operative pleading, alleges three federal claims: (1)

16

disparate impact under Title VII of the Civil Rights Act; (2) violation of the Equal Protection

17

Clause of the Fourteenth Amendment under 42 U.S.C. 1983; and (3) violations of the Due

18

Process Clause of the Fourteenth Amendment under 42 U.S.C. 1983. It also alleges the

19

following California state-law claims: (4) violation of the Fair Employment and Housing Act;

20

(5) violation of Government Code Section 11135; (6) violation of the Equal Protection Clause of

21

the California Constitution; and (7) violation of the Due Process Clause of the California

22

Constitution; and additionally requests writs of mandate for (8) violation of the California Due

23

Process Clause; (9) unlawful expansion of legislation; and (10) violation of state and federal

24

anti-discrimination laws. This order follows full briefing and oral argument.

25
26
27
28
3

1

ANALYSIS

2

To survive a motion to dismiss, a pleading must contain sufficient factual matter,

3

accepted as true, to state a claim for relief that is plausible on its face. Lack of a cognizable legal

4

theory or mere conclusory allegations, however, will result in dismissal. Ashcroft v. Iqbal, 556

5

U.S. 662, 663 (2009).

6

CDCR moves to dismiss all federal claims under Rule 12(b)(6). In addition to fully

7

joining CDCR’s motion to dismiss, SPB separately argues that it is entitled to absolute

8

immunity, immunity under the Eleventh Amendment, and that it is not liable under Title VII.

9

1.

ELEVENTH AMENDMENT IMMUNITY.

Plaintiff seeks monetary damages against CDCR and SPB under Title VII. He does not,

11
For the Northern District of California

United States District Court

10

however, seek monetary damages from CRCR or SPB under Section 1983. In addition, he does

12

not seek monetary damages under any theory from any individually-named employee of either

13

CDCR or SPB.

14

SPB claims Eleventh Amendment immunity from plaintiff’s Section 1983 claims for

15

declaratory and injunctive relief. The Eleventh Amendment bars “a citizen from bringing a suit

16

against his own State in federal court.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234,

17

237–38 (1985). Eleventh Amendment immunity extends to actions against state agencies, such

18

as CDCR and SPB, Brown v. California Dep’t. of Corr., 554 F.3d 747, 752 (9th Cir. 2009), as

19

well as to individuals sued in their official state capacities “because the state is the real party in

20

interest,” Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988).

21

Congress, however, can abrogate Eleventh Amendment immunity without the consent of

22

the states if it does so through an unequivocal expression of congressional intent. Fitzpatrick v.

23

Bitzer, 427 U.S. 445, 454 (1976). Relevant to this action, the Supreme Court found that

24

Congress intended to abrogate Eleventh Amendment immunity for Title VII claims; therefore,

25

the Eleventh Amendment does not bar plaintiff from seeking money damages from CDCR or

26

SPB under certain types of Title VII claims. Ibid. On the other hand, the Eleventh Amendment

27

bars plaintiff from seeking money damages from CDCR or SPB under Section 1983. Quern v.

28

Jordan, 440 U.S. 332, 343–45 (1979).
4

1
2

The Eleventh Amendment, however, does not bar actions that only seek prospective
relief. Ex Parte Young, 209 U.S. 123 (1908).

3

5

In determining whether the doctrine of Ex parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a
straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as
prospective.

6

Verizon Md. Inc. v. Pub. Serv. Comm’n. of Md., 535 U.S. 635, 645 (2002) (citations omitted).

4

7

SPB argues that plaintiff only seeks to contest SPB’s previous adjudication of his appeal

8

and therefore only seeks retrospective relief. This argument is rejected. Plaintiff seeks

9

prospective relief because he still seeks to become a correctional officer. To this end, he resubmitted an application for a correctional officer position with the CDCR, which was denied,

11
For the Northern District of California

United States District Court

10

and currently has an appeal pending before SPB (Opp. at 12 n.6). SPB’s claim for Eleventh

12

Amendment immunity for plaintiff’s Section 1983 claims is DENIED.

13

2.

EQUAL PROTECTION CLAIM.

14

For its part, CDCR moves to eliminate the Section 1983 equal protection claim. “To

15

state a claim under [Section 1983] for a violation of the Equal Protection Clause of the

16

Fourteenth Amendment[,] a plaintiff must show that the defendants acted with an intent or

17

purpose to discriminate against the plaintiff based upon membership in a protected class.”

18

Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (emphasis added). While

19

discriminatory intent may be proven by direct or circumstantial evidence, unintentional conduct

20

that has a disparate impact on minorities does not violate the Equal Protection Clause.

21

Washington v. Davis, 426 U.S. 229, 239–40 (1976). The complaint alleges that defendants’

22

policy “have caused and will continue to cause the disqualification of Latino and/or all non-

23

native born U.S. citizen applicants as opposed to applicants of other national origins” and their

24

actions were “intentional, willful, malicious, and/or done with reckless disregard . . . .” (Sec.

25

Amd. Compl. ¶¶ 68, 77).

26

It is true that the complaint alleges that defendants intended to discriminate against

27

plaintiff based on his race. This allegation, however, is highly conclusory and insufficient to

28

meet the Iqbal pleading standard. See Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013)
5

1

(Iqbal and Twombly apply to Section 1983 claims). Accordingly, CDCR’s motion to dismiss

2

plaintiff’s Section 1983 equal protection claim is GRANTED.
SUBSTANTIVE DUE PROCESS CLAIM.

3

3.

4

In addition, the complaint alleges that defendants violated plaintiff’s substantive due

5

process rights by permanently depriving him of his right to be a correctional officer. The

6

Supreme Court has held that a claim for relief cannot be based on substantive due process where

7

a more specific constitutional provision is applicable. Albright v. Oliver, 510 U.S. 266, 273

8

(1994). In Johnson v. California, 207 F.3d 650, 655–56 (9th Cir. 2000), rev’d on other grounds,

9

543 U.S. 499 (2005), our court of appeals held that “[b]ecause the Equal Protection Clause
[claim of racial discrimination] covers the actions challenged in the complaint, [the plaintiff]

11
For the Northern District of California

United States District Court

10

may not proceed on a substantive due process theory.”
So too here. Plaintiff is alleging that defendants’ uniform policy disqualifies a class of

12
13

persons from employment, whether the class is composed of Latinos or formerly-undocumented

14

workers. This is better adjudicated under equal protection analysis. See, e.g., Wilkins v. County

15

of Alameda, 2012 U.S. Dist. LEXIS 91645, at 11–12 (N.D. Cal. June 28, 2012) (Judge Lucy

16

Koh). Accordingly, CDCR’s motion to dismiss the Section 1983 substantive due process claim

17

is GRANTED.

18

4.

19

The complaint also alleges procedural due process violations. It alleges that CDCR

PROCEDURAL DUE PROCESS CLAIM.

20

reached unfounded conclusions in its rejection letter — for instance, that plaintiff’s false SSN

21

actually belonged to somebody else, that he violated state law by using his false SSN to collect

22

worker’s compensation in Colorado, and that he could have used his ITIN number to qualify for

23

employment (A.R. at 2–3). See also T.D. 8671, 1996-1 C.B. 314.

24

To determine whether plaintiff has been granted adequate procedural protections, three

25

factors are weighed: (1) the protected interest affected; (2) the risk of erroneous deprivation and

26

the value of new or different procedural safeguards; and (3) the interests of the government,

27

including the burden of new or different procedures. Mathews v. Eldridge, 424 U.S. 319, 335

28

(1976).
6

1

[B]ecause procedural due process analysis essentially boils down to an
ad hoc balancing inquiry, the law regarding procedural due process
claims can rarely be considered clearly established at least in the
absence of closely corresponding factual and legal precedent . . .
Indeed, without specific direction from cases applying it, the Mathews
standard is even less amenable to the discovery of clearly established
law than . . . other multifactor balancing tests that arise in
constitutional jurisprudence.

2
3
4
5
6

Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 983 (9th Cir. 1998)

7

(citations omitted).

8

At this stage, it is not possible determine, as a matter of law, whether the administrative

record. It is possible, for example, that no one was assigned the SSN used by plaintiff and that

11
For the Northern District of California

process used by defendants satisfied the Mathews standard. The issue needs a more complete

10

United States District Court

9

CDCR erred in so finding. The motion to dismiss the procedural due process claim is DENIED.

12

5.

TITLE VII CLAIM.

13

The Title VII claim is brought against all defendants. CDCR moves to dismiss. SPB

14

separately argues that it does not have the necessary employer-employee relationship with

15

plaintiff in order to be liable under Title VII.

16
17

A.

Protected Class.

Title VII prohibits employers from discriminating against individuals with respect to

18

compensation, terms, conditions, or privileges of employment on the basis of race, color,

19

religion, sex, or national origin. 42 U.S.C. 2000e-2(a). Unlike the Section 1983 equal protection

20

claim, this order rejects CDCR’s challenge to plaintiff’s Title VII claim. The argument CDCR

21

raises against the Title VII claim is that plaintiff seeks relief based only on immigration status

22

(Br. at 4–5). This is untrue. The Title VII claim is based on a class of Latinos (Sec. Amd.

23

Compl. ¶ 51). Therefore, CDCR’s challenge is rejected.

24

On its own motion, the Court has evaluated whether the dismissal of the Section 1983

25

equal protection claim necessarily results in the dismissal of the Title VII claim. The answer is

26

no. The Section 1983 equal protection claim is dismissed because plaintiff failed to plead intent

27

in more than a conclusory fashion. Title VII disparate impact claims, however, do not include an

28

intent element. Ricci v. DeStefano, 557 U.S. 557, 576–83 (2009).
7

1

It is further worth pointing out that several judges in our district have held that a

2

McDonnell-Douglas prima facie showing is an evidentiary standard, not a pleading standard.

3

See Kuang-Bao Ou-Young v. Potter, 2011 U.S. Dist. LEXIS 22, 6–8 (N.D. Cal. Jan. 3, 2011)

4

(Judge Richard Seeborg); Jianjun Xie v. Oakland Unified Sch. Dist., 2013 U.S. Dist. LEXIS

5

29898, at *9–11 (N.D. Cal. Mar. 4, 2013) (Judge Charles Breyer); see also Al-Kidd v. Ashcroft,

6

580 F.3d 949, 974 (9th Cir. 2009) (dicta), rev'd on other grounds sub nom. Ashcroft v. Al-Kidd,

7

131 S. Ct. 2074 (2011). For the foregoing reasons, CDCR’s motion to dismiss the Title VII

8

claim against it is DENIED.

9

Employment Relationship.

SPB argues that it does not have the necessary employer-employee relationship with

11
For the Northern District of California

United States District Court

10

B.

plaintiff in order to be liable under Title VII. In response, plaintiff contends that “SPB is a third-

12

party interferer [in an indirect employment relationship with plaintiff] whose actions

13

discriminatorily barred him from employment” (Opp. at 4).

14

This order agrees with SPB. Plaintiff is seeking money from SPB for having done

15

nothing more than performing its state function to review every decision by other state agencies

16

and finding CDCR compliant. It is not plausible on this record to imagine a circumstance in

17

which SPB or its individually-named officials are liable for money damages.

18

It is more plausible that SPB and its individually-named officials should stay in the action

19

in order to facilitate declaratory relief, if any, in favor of plaintiff. SPB, however, states in its

20

supplemental briefing that it will not interfere with a decision by CDCR to hire plaintiff if CDCR

21

is so ordered by the Court or otherwise collaterally attack any court-ordered relief directed at

22

CDCR. Accordingly, SPB’s motion dismiss plaintiff’s Title VII claim against it is GRANTED.

23

6.

ABSOLUTE IMMUNITY.

24

All that remains by way of potential relief against SPB and its employee-defendants sued

25

in their official capacities is prospective relief. Contrary to their arguments, quasi-judicial

26

absolute immunity does not bar SPB and its employee-defendants (sued in their official capacity

27

only) from being sued to challenge one of their decisions as illegal. “In an official-capacity

28
8

1

action, [individual defenses, such as absolute immunity] are unavailable.” Ky. v. Graham, 473

2

U.S. 159, 165–67 (1985).

3

In its supplemental briefing, SPB also raises the defense of legislative immunity based on

4

its adoption of SPB Rule 172 (Supp. Br. at 3). Plaintiff, however, does not rely on SPB’s

5

promulgation of SPB Rule 172 in this action. Rather, he claims that SPB’s affirmation of

6

CDCR’s interpretation of Rule 172 is the basis for his claims.

7

SPB’s claim for absolute immunity is DENIED.

8

7.

9

The Supreme Court has held:
A federal court's grant of relief against state officials on the basis of
state law, whether prospective or retroactive, does not vindicate the
supreme authority of federal law . . . it is difficult to think of a greater
intrusion on state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law. Such a result
conflicts directly with the principles of federalism that underlie the
Eleventh Amendment. We conclude that Young . . . [is] inapplicable
in a suit against state officials on the basis of state law.

11
For the Northern District of California

United States District Court

10

STATE-LAW CLAIMS.

12
13
14

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (emphasis added);
15
Spoklie v. Mont., 411 F.3d 1051, 1060 (9th Cir. 2005) (same). Thus, a federal court cannot grant
16
plaintiff any relief based on his state-law claims because SPB and CDCR do not waive their
17
Eleventh Amendment immunity in this action. There is no supplemental jurisdiction over
18
plaintiff’s state-law claims because 28 U.S.C 1367 “does not abrogate a state’s constitutional
19
immunity under the Eleventh Amendment from suit in federal court.” Rohnert Park Citizens to
20
Enforce CEQA v. Cal. DOT, 2008 U.S. Dist. LEXIS 41004, at *5–6 (N.D. Cal. May 20, 2008)
21
(Judge Thelton Henderson), citing Stanley v. Tr. of Cal. State Univ., 433 F.3d 1129, 1134 (9th
22
Cir. 2006).
23
Because adjudication of plaintiff’s California state-law claims in federal court would
24
contravene the Eleventh Amendment, plaintiff’s state-law claims against all defendants must be
25
DISMISSED. These may be re-filed in state court.
26
8.

JUDICIAL NOTICE.

27
The joint request for judicial notice of the State Personnel Board administrative record
28
and resolution is GRANTED.
9

1
2

CONCLUSION
To the extent stated above, defendants’ motions to dismiss are GRANTED IN PART AND

3

DENIED IN PART. Defendants’ motions to dismiss plaintiff’s Section 1983 equal protection and

4

substantive due process claims are GRANTED. SPB’s motion to dismiss plaintiff’s Title VII

5

claim against it is GRANTED. CDCR’s motion to dismiss the Title VII claim, however, is

6

DENIED. Defendants’ motion to dismiss the procedural due process claim is DENIED. Plaintiff’s

7

state-law claims are dismissed without prejudice to re-filing in state court.

8
9

Plaintiff’s procedural due process and Title VII claims both require a more complete
record. To tee this up, defendants shall move for summary judgment on plaintiff’s procedural
due process and Title VII claims within 62 CALENDAR DAYS (nine weeks). Both sides may take

11
For the Northern District of California

United States District Court

10

discovery, effective now, on the issues raised. Afterwards, plaintiff shall have an additional

12

eight weeks in which to take discovery and to file an opposition. Defendants may take further

13

discovery from any declarant in opposition. A reply will be due one week after the opposition.

14

The motion hearing will be set for SEPTEMBER 25, 2014, AT 8:00 A.M.

15

Plaintiff will have until MAY 29, 2014, to file a motion, noticed on the normal 35-day

16

calendar, for leave to amend his Section 1983 equal protection claim. He may also seek leave to

17

re-plead his Title VII claim against SPB. A proposed amended complaint must be appended to

18

this motion. Plaintiff must plead his best case as to these claims for relief. The motion should

19

clearly explain how the amended complaint cures the deficiencies identified herein, and should

20

include as an exhibit a redlined or highlighted version identifying all changes. If such a motion

21

is made and granted, it will end up being on a somewhat separate summary judgment track.

22
IT IS SO ORDERED.
23
24

Dated: May 7, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

25
26
27
28
10