Deleon Guerrero v. Commonwealth of the Northern Mariana Islands State Board of Education et al
Filing
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DECISION and ORDER Granting Defendants' 6 Motion to Dismiss. Signed by Chief Judge Ramona V. Manglona on 05/30/2018. (FPA)
FILED
Clerk
District Court
MAY 30 2018
for the Northern Mariana Islands
By________________________
IN THE UNITED STATES DISTRICT COURT (Deputy Clerk)
FOR THE NORTHERN MARIANA ISLANDS
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CYNTHIA DELEON GUERRERO,
Case No.: 18-cv-00006
Plaintiff,
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DECISION AND ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS
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vs.
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CNMI STATE BOARD OF EDUCATION et
al.,
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Defendants.
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I.
INTRODUCTION
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Plaintiff Cynthia DeLeon Guerrero has filed a civil rights action against her former employer,
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the CNMI Board of Education and members of the Board. (See Compl., ECF No. 1 at 4–24.)
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Defendants removed the case from the CNMI Superior Court to this Court, and now seek to dismiss
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for failure to state a claim. (Motion, ECF No. 6.) The Court remanded the state law claims after the
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motion to dismiss was filed (Order, ECF No. 23), and the motion will therefore be considered only as
to the federal claims that were not remanded.
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The motion has been fully briefed, and the Court heard argument on May 17, 2018. Having
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considered the arguments of the parties and reviewed the record, Defendants’ motion is GRANTED.
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II.
BACKGROUND
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Plaintiff was employed as the Commissioner or Chief Executive Officer of the CNMI Public
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School System. (Compl. ¶¶ 4–5, ECF No. 1 at 5.) Her employment contract was for a term of four
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years “subject to the conditions set forth” in the contract (id. ¶ 1(d)), including that Plaintiff “serves at
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the will of the BOE” and could be “terminated at any time by the BOE, with or without cause, upon
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the positive vote of three (3) of its elected members.” (Id. ¶ 6.) In addition, the contract stated that
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there was “no right to renewal” expressly or impliedly after the four-year term expired. (Id. ¶ 7.)
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On October 20, 2017, Plaintiff was served with a notice from Defendant Ada informing her
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that Defendants would be evaluating her on October 25. (Id. ¶ 26.) Plaintiff requested to attend the
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discussion of her evaluation, but was refused. (Id. ¶ 27.) On October 30, 2017, Defendants voted to
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terminate Plaintiff’s employment without cause. (Id. ¶ 15.) Following this vote, Defendants made a
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public statement that Plaintiff was terminated because she “was not getting along with them.” (Id. ¶
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16.) Plaintiff alleges that this statement shows her termination was for cause. (Id.)
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Additionally, Plaintiff claims that her termination was in retaliation “for her calling out and
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questioning the Defendants in their continued mismanagement of PSS and Plaintiff’s continued refusal
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to consent to Defendants’ continued request for funding.” (Id. ¶ 17.) In particular, Plaintiff alleges
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that she refused to remove certain officials from their posts upon request from the Board, that she
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questioned PSS employees’ travel expenses, refused the Board’s improper demand to require PSS to
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fund legal counsel positions, and refused the Board’s demand to transfer $175,000 from PSS funds to
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the Board. (Id. ¶¶ 18–21.)
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Following her termination, Plaintiff filed a lawsuit in the Superior Court for the
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Commonwealth of the Northern Mariana Islands, asserting four causes of action against Defendants.
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(See generally Compl.) She claims that they violated her constitutional rights to her good name and
property by failing to afford her notice and hearing prior to termination; conspired to violate these
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rights; wrongfully terminated her; and breached her employment contract. (Id.) Defendants removed
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the case from the Superior Court to this Court. (Notice of Removal, ECF No. 1.) The Court
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subsequently remanded the state law claims of breach of contract and wrongful termination claims.
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(Order, ECF No. 23.) Defendants now seek to dismiss the remaining counts.
III.
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LEGAL STANDARD
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To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
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pleading “must contain sufficient factual matter, accepted as true, to state a claim for relief that is
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plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555-56 (2007). In other words, the pleading must contain “more than labels and
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conclusions”; the “[f]actual allegations must be enough to raise a right to relief above a speculative
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level.” Eclectic Props. East, LLC v. Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014)
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(quoting Twombly, 550 U.S. at 555). Thus, a court must “identify pleadings that, because they are no
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more than conclusions, are not entitled to the assumption of truth,” and then consider whether the well-
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pleaded allegations could “plausibly give rise to an entitlement to relief.” Id. (quoting Iqbal, 556 U.S.
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at 678-79). If the well-pleaded allegations “are merely consistent with a defendant’s liability,” the
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plausibility threshold has not been satisfied. Id. (quoting Iqbal, 556 U.S. at 678.) But “[a] claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
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IV.
DISCUSSION
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A. Notice of Substitution
As an initial matter, Plaintiff contends that the Notice of Substitution filed by the
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Commonwealth Attorney General is invalid. (Opp. Br. 6–7, ECF No. 13.) The Attorney General filed
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a Notice of Substitution, stating that pursuant to 7 CMC § 2210(a), all Defendants were being replaced
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by the Commonwealth because they were acting in their official capacities at the time Plaintiff was
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terminated. (Notice of Substitution, ECF No. 2; Certification of Scope of Employment, ECF No. 2-
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1.)
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Under 7 CMC § 2210(a), the Attorney General may certify that a defendant “was acting within
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the scope of his/her office or employment at the time of the incident out of which the claim arose” and
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the claim “shall be deemed an action against the Commonwealth and the Commonwealth shall be
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substituted as the party defendant.” 7 CMC § 2210(a). This certification process is part of the
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Commonwealth Employees’ Liability Reform and Tort Compensation Act of 2006 (“Reform Act”),
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which was designed to limit the Commonwealth’s liability in tort cases consistent with the limitations
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imposed under the Federal Tort Claims Act (“FTCA”). See 7 CMC § 2201, Comment: Pub. L. 15-22
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§ 2 Findings and Purpose, July 28, 2006. The Commonwealth’s statute further provides that the
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statutory scheme is exclusive of all other remedies, except in cases, among other things, involving
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violations of the U.S. or Commonwealth Constitutions. 7 CMC § 2208(b)(2)(A).
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The claims in Plaintiff’s case allege violations of the U.S. Constitution.
Thus, the
Commonwealth’s Reform Act is not the exclusive remedy for Plaintiff’s causes of action, and Plaintiff
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is not bound by the limitations of the Reform Act with regard to which defendants may be named. See
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Christian v. Commonwealth, Case No. 14-cv-00010, 2016 WL 4004574, at *1 (D.N. Mar. I. July 7,
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2016) (denying notice of substitution when federal statutes provided for separate cause of action and
therefore Reform Act did not apply to plaintiff). This result is consistent with the Commonwealth
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legislature’s intent to model the tort liability act on the FTCA. Under the FTCA, “constitutional claims
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are outside the purview” of the limitations imposed by the Act. Billings v. United States, 57 F.3d 797,
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800 (9th Cir. 1995) (substitution of United States for Secret Service Agents did not affect constitutional
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claims, and citing 28 U.S.C. § 2679(b)(2)(A), which states that the U.S. Attorney General’s
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certification and substitution authority does not apply to violations of the Constitution). Accordingly,
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the Notice of Substitution is improper and is denied.
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B. Claim I: Violation of Fourteenth Amendment
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Defendants first submit that Plaintiff fails to state a due process claim because, as an at-will
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employee, she lacks a property interest in her employment. (Motion 10–14, ECF No. 7.) Further, to
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the extent that Plaintiff is alleging an equal protection violation, she has failed to allege a
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discriminatory purpose for her termination. (Id. at 9–10, 14.)
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To state a due process violation, a plaintiff must prove three elements: “(1) a property interest
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protected by the Constitution; (2) a deprivation of the interest by the government; and a (3) lack of
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required process.” Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 974 (9th Cir. 2002)
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(quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Due process applies to
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public employees if they “have a ‘property interest’ in the terms or conditions of their employment.”
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Id. at 975. The property interest is established by “an independent source such as state law—rules or
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understandings that secure certain benefits and that support claims of entitlement to those benefits.”
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Id.
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Plaintiff contends she has a protected liberty interest in her good name, and that the
employment contract is constitutionally protected property. (Compl. ¶¶ 33–34, ECF No. 1 at 10.)
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With respect to the alleged liberty interest, Plaintiff relies on Board of Regents of State Colleges v.
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Roth, 408 U.S. 564 (1972), for the proposition that damage to her reputation gives rise to a
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constitutional right to a hearing prior to termination. (Opp. Br. 9.) The alleged damage to her good
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name is that Defendants stated publicly that she was “terminated because she was not getting along
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with them.” (Compl. ¶ 16.)
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This argument is unpersuasive. The Supreme Court has, since deciding Roth, clarified that an
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“interest in reputation alone” is not a liberty or property right. Paul v. Davis, 424 U.S. 693, 711 (1976).
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Thus, to plead a due process claim involving harm to one’s reputation, a plaintiff must also plead a
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deprivation of a separate liberty or property interest and that the state has changed or terminated that
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constitutionally protected interest. Id. at 711–12. Accordingly, Plaintiff cannot assert a due process
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claim based solely on her reputation, as it is not a constitutionally protected liberty or property interest.
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Furthermore, the alleged harm to her reputation does not satisfy the level of stigma that the
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state must inflict to bring a due process claim. The stigma imposed must be one that “might seriously
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damage his standing and associations in his community” or foreclose “his freedom to take advantage
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of other employment opportunities.” Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 982
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(9th Cir. 2002). Here, Plaintiff alleges is that the Board stated publicly that she was not getting along
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with them. This is far afield from the harm caused by the state that may give rise, in conjunction with
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a decision to terminate employment, to an actionable claim. Specifically, nothing about Plaintiff’s
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inability to “get along” with the board suggests dishonesty, immorality, or misconduct, and does not
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show she was foreclosed from subsequent employment as a result. See Roth, 408 U.S. at 573
(suggesting dishonesty or misconduct allegations in connection with employment may give rise to due
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process claim); Ulrich, 308 F.3d at 982 (defamation in connection with employment decision may
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give rise to due process claim). Accordingly, Plaintiff cannot state a claim based on harm to her
reputation.
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Next, with respect to the employment contract, Plaintiff again relies on Roth to argue that she
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has a property right in her employment contract even if it was an “at will” contract. (Opp. Br. 11–12.)
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However, the Supreme Court in Roth clearly held that property interests “are not created by the
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Constitution,” and a plaintiff must have a “legitimate claim of entitlement” to a contract under state
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law. 408 U.S. at 577–78. Thus, any property interest Plaintiff has in her contract must arise from the
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law of the CNMI. Roth did not consider whether such a right exists under CNMI law and therefore
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does not answer the threshold question as to whether there is any property that merits constitutional
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due process protection.
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Plaintiff’s counsel suggested during the hearing that Connell v. Higginbotham, 403 U.S. 207
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(1971), demonstrated that all public employees had a property interest in continued employment and
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were owed due process prior to termination even if they lacked a formal contract or tenure. In Connell,
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the Supreme Court was faced with the question of how to balance an employee’s constitutionally
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guaranteed right of free speech with the state’s right to place conditions on employment, and concluded
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that a public employee who refused to sign an oath stating he or she did “not believe in the overthrow
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of the Government” by force or violence must be afforded due process prior to termination. Id. In so
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holding, the Supreme Court was not asked to consider and did not opine on whether the employee who
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was terminated had a property interest in her continued employment. Connell cannot, therefore, stand
for the broad proposition that all at-will employees have a constitutionally protected interest in their
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continued employment, and does not prove that Plaintiff has a property right in her employment
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contract.
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The Court has reviewed the CNMI law and the contract and finds that Plaintiff has no property
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interest in her employment contract. Under the contract, Plaintiff’s term of four years was subject to
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all other conditions of the contract. (Contract ¶ 1(d).) The other conditions expressly stated that she
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served “at the will of the BOE” and had no right to renewal after the four-year term expired. In other
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words, Plaintiff’s contract was for at most four years but it could be terminated at any time without
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cause.
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These contractual terms are consistent with local law, which provides that the Commissioner
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of Education “shall serve at the pleasure of the board and shall be appointed by the Board of Education
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for a term of four years and may be removed by a majority vote of the members of the board.” 1 CMC
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§ 2272. Plaintiff therefore had no reasonable expectation of continued employment and therefore was
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an “at will” employee with no property right for purposes of the due process clause.
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This conclusion is consistent with case law interpreting the effect of similar CNMI statutes. In
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Hofschneider v. Demapan-Castro, this Court considered a law providing for the appointment of the
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Commissioner of the Marianas Public Lands Authority, which stated that the Commissioner “shall
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serve at the pleasure of the Board of Directors” of the MPLA. Case No. 04-cv-00022, 2005 WL
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817710, at *2 (D.N. Mar. I. Apr. 11, 2005). Given this limitation on the Commissioner’s employment,
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the plaintiff lacked a “reasonable expectation of continued employment” and therefore did not have a
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property interest arising from his employment contract. Id. at *3. The CNMI Supreme Court reached
the same conclusion when considering a four-year contract for the Commissioner of Public Lands.
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DeLeon Guerrero v. Dep’t of Public Lands, 2011 MP 3 ¶¶ 10, 14 (2011). In so holding, the CNMI
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Supreme Court stressed that because the statute stated the “Commissioner shall serve at the pleasure
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of the Board of Directors,” the Commissioner was an “at will” employee who lacked a property interest
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in continued employment even despite the four-year term of the contract. Id. ¶¶ 10, 18.
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As with the two cases discussed above, Plaintiff’s employment is limited by a statute indicating
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that she “shall serve at the pleasure” of the Board of Education. This statutory text therefore makes
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clear that she is an “at will” employee and therefore lacks a property interest in continued employment.
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Accordingly, Plaintiff cannot state a claim for a due process violation.
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Finally, Plaintiff also alleges that her termination violated CNMI public policy and the implied
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covenant of good faith and fair dealing. (Opp. Br. 14–17.) Neither of these state law claims are civil
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rights violations that may be raised via 42 U.S.C. § 1983. Pototsky v. Napolitano, 210 F. App’x 637
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(9th Cir. 2006) (“Section 1983 does not provide a cause of action for alleged violations of state law.”).
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Moreover, public policy and the implied covenant do not alter Plaintiff’s status as an at-will employee,
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and therefore do not change that the employment contract is not a property interest for purposes of the
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due process clause. See Summers v. City of McCall, 84 F. Supp. 3d 1126, 1148 (D. Idaho 2015).
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Instead, public policy and the implied covenant impose obligations on the employer with regard to
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how it should deal with employees, and failure to follow them may give rise to state law claims for
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wrongful termination or the implied covenant of good faith and fair dealing. However, they do not
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generate new constitutionally protected property rights. Id. Accordingly, the due process claim must
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be dismissed.
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C. Claim II: Conspiracy to Violate Civil Rights
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Defendants next contend that, Plaintiff has failed to sufficiently allege an agreement, that
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Defendants carried out overt acts, and invidious discriminatory animus. (Motion 15–16.) As an initial
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matter, Plaintiff has not specified which subsection of section 1985 is the basis of her claim, but the
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Court assumes it is section 1985(3), as subsections (1) and (2), which address conspiracies to prevent
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officers from performing their duties and obstructing justice, appear irrelevant to Plaintiff’s
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allegations.
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To plead a conspiracy to violate civil rights under section 1985(3), a claimant must show that
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the defendants (1) conspired; (2) for the purposes of depriving, directly or indirectly, a person or class
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of the equal protection of the laws; (3) caused any act to be done in furtherance of the conspiracy; and
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(4) injured another’s person or property or deprived another of any right or privilege of a citizen of the
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United States. Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971). Additionally, a plaintiff must
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allege that the deprivation was motivated by “some racial, or perhaps otherwise class-based,
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invidiously discriminatory animus.” Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).
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This invidious discriminatory animus extends beyond race, but “only when the class in question can
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show that there has been a governmental determination that its members require and warrant special
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federal assistance in protecting their civil rights.’ Id. Thus, the court must have designated the class
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as suspect or quasi-suspect or Congress must indicate the status through legislation. Id.
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Here, as set forth above, Plaintiff lacks a constitutionally protected property interest and
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therefore cannot state a claim for deprivation of her due process rights. Accordingly, she cannot, as a
matter of law, satisfy the final element of a section 1985(3) claim—deprivation of a right. Moreover,
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Plaintiff’s allegations, taken as a whole, do not sufficiently plead invidious discriminatory animus.
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She contends that Defendants conspired to deprive her of her due process rights by firing her without
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cause even though the termination was actually for cause. As discussed above, the “for cause” is that
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Plaintiff was “not getting along” with the Board. (Compl. ¶ 16.) Further, she alleges that the action
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was taken in retaliation for her refusing to comply with the Boards’ allegedly improper demands.
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Nowhere does the complaint suggest that Plaintiff was terminated on account of race or other protected
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status. Instead, the allegedly “for cause” termination was motivated by discord between Plaintiff and
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Defendants, which is insufficient to demonstrate invidious discriminatory animus. Accordingly,
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Plaintiff’s section 1985 claim must be dismissed.
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D. Qualified Immunity
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Defendants claim that because Plaintiff has failed to state a claim and to show that they violated
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a clearly established right, they are entitled to qualified immunity. (Motion 16–17.) Because Plaintiff
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has failed to state a claim, the Court need not reach whether Defendants are entitled to immunity.
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V.
CONCLUSION
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For the reasons set forth above, Defendants’ motion to dismiss (ECF No. 6) is GRANTED.
Plaintiff’s federal claims are DISMISSED WITH PREJUDICE.
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The Clerk is directed to close the case.
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IT IS SO ORDERED this 30th day of May, 2018.
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RAMONA V. MANGLONA
Chief Judge
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