Callahan v. Washoe County School District et al

Filing 44

ORDER - Defendant's Motion to Dismiss ECF No. 39 is GRANTED. Callahans Amended Complaint ECF No. 36 is DISMISSED in its entirety. Signed by Judge Larry R. Hicks on 08/24/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TAMMY CALLAHAN,

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3:15-CV-0200-LRH-WGC
Plaintiff,

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v.

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WASHOE COUNTY SCHOOL DISTRICT; ORDER
et al.,
Defendants.

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Before the court is Defendants Washoe County School District, a political

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subdivision of the state of Nevada (“WCSD”); and Tom Strauss; Rick Borba; Heath

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Morrison; Melissa Thoroughman; Lynn Rauh; Richard Swanberg; Kelly Keane; Jenni

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Anderson; and Ruth Williams’, all of whom are either present or former employees of

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WCSD sued in their individual and official capacities (collectively “Defendants”), motion

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to dismiss the first amended complaint. ECF No. 39. Plaintiff Tammy Callahan

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(“Callahan”) filed an opposition (ECF No. 42) to which Defendants replied (ECF No. 43).

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I.

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Facts and Procedural History
Plaintiff Callahan was employed as an elementary school teacher with WCSD

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from 1987 until 2010. For the 2008-2009 school year Callahan was asked by her

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elementary school principal, defendant Kelly Keane, to take over and teach a third

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grade class for the year rather than her normal second grade class. Callahan accepted

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the position with the understanding that she would be placed back in the second grade

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the following year.

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Ultimately, Callahan was not returned to her second grade classroom and began

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to apply for other elementary teaching positions within the school district. However,

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Callahan was unable to find a position within WCSD because, as she alleges, the only

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positions available were for first year teachers or one year contracts, rather than normal

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tenured teaching positions. Callahan then applied to retire in June 2010 so that she

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could take advantage of WCSD’s early retirement incentive with the understanding that

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she could rescind her application if she found another teaching position during the

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month. However, Callahan alleges that when she tried to rescind her application prior to

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the June 30, 2010 deadline, her request was denied by WCSD administration and she

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was forced into retirement. At the time of her retirement, Callahan was over fifty years

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old and had been with WCSD for 23 years.

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In August 2011, Callahan filed complaints with the Nevada Equal Rights

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Commission (“NERC”) and the Equal Employment Opportunity Commission (“EEOC”)

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alleging age discrimination. Callahan received a “right to sue” letter on January 18,

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2015. Subsequently, on April 6, 2015, Callahan filed a complaint against defendants

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alleging five causes of action: (1) hostile work environment under the Age

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Discrimination in Employment Act (“ADEA”); (2) violation of the Equal Protection Clause

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pursuant to 42 U.S.C. § 1983; (3) federal conspiracy claim under 42 U.S.C. § 1985; (4)

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negligent infliction of emotional distress; and (5) intentional infliction of emotional

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distress. ECF No. 1. Callahan’s initial complaint was dismissed with leave to file an

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amended complaint alleging an ADEA discrimination claim and an ADEA retaliation

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claim. ECF No. 35.

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On December 21, 2015, Callahan filed an amended complaint against

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defendants alleging five causes of action: (1) age discrimination under the ADEA; (2)

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violation of the Equal Protection Clause pursuant to 42 U.S.C. § 1983; (3) federal

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conspiracy under 42 U.S.C. § 1985; (4) negligent infliction of emotional distress; and (5)

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intentional infliction of emotional distress. ECF No. 36. Thereafter, defendants filed the

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present motion to dismiss. ECF No. 39.

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II.

Legal Standard
Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6)

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for failure to state a claim upon which relief can be granted. To survive a motion to

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dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil

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Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela Hosp. Med.

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Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That is, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations;

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however, a pleading that offers “‘labels and conclusions’ or ‘a formulaic recitation of the

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elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at

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1949 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the

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pleaded factual content allows the court to draw the reasonable inference, based on the

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court’s judicial experience and common sense, that the defendant is liable for the

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misconduct alleged. See Id. at 1949-50. “The plausibility standard is not akin to a

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probability requirement, but it asks for more than a sheer possibility that a defendant

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has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of

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entitlement to relief.” Id. at 1949 (internal quotation marks and citation omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the

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complaint as true. Id. However, “bare assertions . . . amount[ing] to nothing more than a

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formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption

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of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal,

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129 S. Ct. at 1951) (brackets in original) (internal quotation marks omitted). The court

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discounts these allegations because “they do nothing more than state a legal

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conclusion—even if that conclusion is cast in the form of a factual allegation.” Id. (citing

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Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a motion to dismiss, the

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non-conclusory ‘factual content,’ and reasonable inferences from that content, must be

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plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

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III.

Discussion

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A.

Age Discrimination

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In order to establish a prima facie case for age discrimination under the ADEA, a

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plaintiff must establish (1) membership in a protected class [age 40-70]; (2) that plaintiff

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was satisfactorily performing his or her job or was otherwise qualified for hire; (3) that

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plaintiff suffered an adverse employment action; and (4) that plaintiff was replaced by a

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substantially younger person with equal or inferior qualifications. Nidds v. Schindler

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Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996). The fourth element of a prima facie

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case is treated with some flexibility so long as a plaintiff can show the circumstances

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surrounding an adverse employment action give rise to an inference of age

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discrimination. Id. Additionally, in Nevada, a charge alleging unlawful discrimination

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must be filed within 300 days after the alleged unlawful practice occurred. 29 U.S.C. §

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626(d)(1)(B); Laguaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174 (9th Cir.

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1999).

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In their motion, defendants contend Callahan did not timely file her age

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discrimination charge with NERC and EEOC within the 300 day time period after her

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alleged forced retirement and thus her claim is time barred. In opposition, Callahan

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argues that after her forced retirement she continued to apply and interview for

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numerous positions up to December 2010, and because WCSD’s continued refusal to

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hire her during this time relates to her age discrimination charge, the entire time period

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constitutes a continuing violation that did not trigger the filing period until December

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2010. Thus, she argues, the NERC and EEOC complaints are timely because the intake

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paperwork was filed on August 5, 2011, within 300 days of December 2010. This court

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disagrees.

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The continuing violations doctrine allows courts to consider discrimination claims

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that would ordinarily be time barred as long as the untimely acts of discrimination are

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part of an ongoing unlawful employment practice. See, e.g., Anderson v. Reno, 190

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F.3d 930, 936 (9th Cir. 1999); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107

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(9th Cir. 1998). To assert the continuing violations doctrine, a plaintiff must show that

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the untimely incidents were: (1) part of an ongoing pattern of related acts; and (2) that

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the defendant continued this pattern into the relevant limitations period. Green v. L.A.

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Cnty. Superintendent of Sch., 888 F.2d 1472, 1480 (9th Cir. 1989); see also Bauer v.

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Bd. of Supervisors, 44 F. App'x 194 (9th Cir. 2002) (citing Sosa v. Hiraoka, 920 F.2d

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1451, 1456 (9th Cir. 1990)). However, “[d]iscrete discriminatory acts are not actionable

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if time barred, even when they are related to acts alleged in timely filed charges.”

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AMTRAK v. Morgan, 536 U.S. 101, 113 (2002). Rather, “[e]ach discrete discriminatory

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act starts a new clock for filing charges alleging that act. The charge, therefore, must be

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filed within the… 300-day time period after the discrete discriminatory act occurred.” Id.

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The time to file a claim based on refusal to hire starts when a discrete act happens, i.e.

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when the plaintiff is not hired for a particular position, not when the plaintiff stops

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applying for positions. Lukovsky v. City & Cnty. of S.F., 535 F.3d 1044 (9th Cir. 2008).

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Although a discriminatory practice may extend over time through a series of related

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acts, if the acts remain divisible into a set of discrete acts, each must be brought within

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the statutory limitations period. Raas v. Fairbanks N. Star Borough, 323 F.3d 1185,

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1192 (9th Cir. 2003) (holding that the school district’s refusal to hire for Raas for a full-

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time teaching position in July of 1992 for the ’92-’93 school year was time barred

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because the Equal Employment Opportunity charge was filed on September 16, 1993

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and was governed by a 300 day limitations period).

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Here, Callahan’s effective retirement date was on August 31, 2010, and thus her

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age discrimination claim arising from her alleged forced retirement had to be filed with

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NERC and EEOC before June 27, 2011. Although NERC received Callahan’s charge on

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August 17, 2011, Callahan contends that she filed her complaint with NERC and EEOC

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on August 5, 2011. Even when using the earliest possible date of August 5, 2011, any

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incident that happened prior to October 9, 2010, including Callahan’s forced retirement,

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is barred. Further, in contrast to Callahan’s argument, defendants’ refusal to re-hire

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Callahan after her forced retirement is not a continuing violation. Rather, each failure to

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hire constitutes a separate, actionable incident. Morgan, 536 U.S. at 114. Thus, each

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time WCSD failed to rehire Callahan for a position she applied for, that act constituted a

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separate, actionable ‘unlawful employment practice’ and triggered a new time period to

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file a charge of discrimination. As such, this court finds that Callahan has failed to allege

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any ongoing pattern of related acts sufficient for application of the continuing violations

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doctrine. Therefore, the court finds that Callahan’s age discrimination claim based upon

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her forced retirement was untimely and thus, she is barred from bringing this claim.

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Additionally, the court notes that Callahan’s allegations related to applying for

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new job positions are not in her complaint. Rather, she raised them for the first time in

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her opposition to the motion to dismiss. As such, the court cannot review these

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allegations in addressing the defendants’ motion to dismiss as they are not part of the

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operative complaint. Moreover, even when using the date Callahan insists begins the

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time period for her claims, August 5, 2011, any refusal to hire that happened prior to

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October 9, 2010, is not actionable. In the first amended complaint, Callahan does not

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allege that she applied for any jobs after October 9, 2010, only that she generally

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“applied and interviewed for more than 70 positions for which she was qualified and was

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denied.” ECF No. 36 at ¶21. Thus, based on the allegations in her complaint, Callahan

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has not alleged any timely violation of the ADEA for refusal to hire.

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B.

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In their motion to dismiss, defendants contend that the ADEA is the exclusive

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Equal Protection and Conspiracy Claims

enforcement mechanism for claims of age discrimination. This court agrees.
As a matter of law, plaintiff cannot state a § 1983 equal protection claim arising

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from age discrimination in employment. Cummins v. City of Yuma, 410 F. App'x 72 (9th

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Cir. 2011) (citing Almeyer v. Nev. Sys. Of Higher Educ., 555 F.3d 1051, 1060-61 (9th

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Cir. 2009)). Instead, a plaintiff may allege a Section 1983 equal protection claim at the

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same time as a claim under the ADEA, but the plaintiff must allege that defendants

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“violated some federally secured right other than those already protected by the ADEA.”

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Morgan v. Humboldt Cnty. Sch. Dist., 623 F. Supp. 440 (D. Nev. 1985).

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Here, Callahan does not allege any violation of her right to equal protection that

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does not arise from her employment. The constitutional right that Callahan alleges has

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been violated is her “right to be treated in the same manner as her fellow employees

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under similar circumstances.” ECF No. 36 at ¶41. Specifically, Callahan alleges that she

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was singled out for asking for clarification of district policies. ECF No. 36 at ¶42.

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Additionally she alleges that defendants created a hostile work environment and that

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defendants acted with deliberate indifference to her work environment by failing to

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investigate her complaints. Id. at ¶¶43-45. However, these allegations solely have to do

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with her employment with WCSD, and are thus pre-empted by the ADEA.

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Similar to Callahan’s Equal Protection claim, a deprivation of a right created by

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Title VII cannot be the basis for a civil conspiracy claim under § 1985(3). Great Am.

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Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 378 (1979). To state a claim under

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Section 1985(3), a plaintiff must allege that defendants: (1) conspired; (2) for the

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purpose of depriving any person or class of persons of equal protection or equal

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privileges and immunities under the laws; (3) an act done by one of the conspirators in

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furtherance of the conspiracy; and (4) a personal injury, property damage, or deprivation

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of any right or privilege of a citizen of the United States. Gillespie v. Civiletti, 629 F.2d

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637, 641 (9th Cir. 1980); see also Sever v. Alaska Pulp Corp., 978 D.2d 1529, 1536 (9th

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Cir. 1992).

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Like Callahan’s allegations regarding her equal protection claim, she has failed to

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allege anything in her conspiracy claim outside the context of her employment with

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WCSD. Her allegations for civil conspiracy have to do with a hostile work environment,

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a claim which this court already dismissed. ECF No. 36 at ¶¶48-53; ECF No. 35.

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Further, what Callahan alleges defendants conspired to deprive her of was her right to a

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“safe, fair, and non-hostile work environment” by singling her out, treating her different

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from other employees, humiliating and embarrassing her, and investigating her upon

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her requesting that she be treated fairly. ECF No. 36 at ¶48-52. These allegations arise

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solely from her employment and are pre-empted by her ADEA claim. Therefore, this

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court shall grant defendants’ motion to dismiss these claims.

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C.

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In her complaint, Callahan alleges two remaining claims arising under Nevada

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state law. Pursuant to 28 U.S.C. § 1367(a), a district court may exercise supplemental

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jurisdiction over state law claims that are part of the same case or controversy as

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plaintiff’s federal claims. However, the court may decline to exercise supplemental

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jurisdiction over state law claims if the court determines that federal claims warrant

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dismissal. 28 U.S.C. § 1367(c)(3). The exercise of supplemental jurisdiction is entirely

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within the court’s discretion. United Mine Workers of America v. Gibbs, 383 U.S. 715,

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716 (1966).

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State Tort Claims

Because the court finds that Callahan’s federal claims warrant dismissal against

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all defendants, the court declines to exercise supplemental jurisdiction over her

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remaining state law claims. Accordingly, the court shall dismiss these claims without

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prejudice.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (ECF No. 39)

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is GRANTED in accordance with this order. Callahan’s complaint (ECF No. 36) is

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DISMISSED in its entirety.

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IT IS SO ORDERED.

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DATED 24th day of August, 2016.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE