Grigorescu v. Board of Trustees of the San Mateo County Community College District

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2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 VIOLETA GRIGORESCU, Case No. 18-cv-05932-EMC

8 Plaintiff,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART DEFENDANT’S

MOTION TO DISMISS; AND

10 BOARD OF TRUSTEES OF THE SAN GRANTING IN PART AND DENYING

MATEO COUNTY COMMUNITY IN PART DEFENDANT’S MOTION TO

11 COLLEGE DISTRICT, et al., STRIKE

12 Defendants. Docket Nos. 40-41

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14

15 Plaintiff Violeta Grigorescu (“Ms. Grigorescu”) filed her third amended complaint

16 (“TAC”) against Eugene Whitlock (“Mr. Whitlock”), the former Vice Chancellor of Human

17 Resources (“VCHR”) at the San Mateo County Community College District (the “District”).

18 Docket No. 39. In previous pleadings, Ms. Grigorescu raised claims against multiple defendants

19 (e.g., the District and various supervisors in their individual capacity). See Docket No. 1. The

20 Court dismissed Ms. Grigorescu’s first and second amended complaints with leave to amend,

21 permitting Ms. Grigorescu to plead only two claims against Mr. Whitlock: (1) race-based

22 termination under Section 1981; and (2) retaliatory harassment (First Amendment) claims under

23 Section 1983. Pending before the Court is Mr. Whitlock’s motion to dismiss that pleading.

24 Docket No. 41 (“Mot.”). Mr. Whitlock also concurrently filed a motion to strike certain factual

25 allegations in TAC that support claims previously dismissed with prejudice. Docket No. 40. For

26 the reasons discussed below, the Court GRANTS in PART and DENIES in PART Mr.

27 Whitlock’s motion to dismiss. Additionally, Mr. Whitlock’s motion to strike is GRANTED in

1 I. BACKGROUND1

2 In 2004, Ms. Grigorescu was employed by the District as a laboratory technician. TAC ¶

3 17. In 2008, she became a part-time, adjunct physics instructor. Id. In 2011, Ms. Grigorescu

4 organized a group called Friends of CSM Gardens to oppose the conversion of an open-space

5 garden into a parking lot. According to Ms. Grigorescu, she “organized students, contacted

6 political figures, and advised members of the CSM Garden Club to attend campaign events of the

7 President of the District’s Board of Trustees.” Id. ¶ 18. Ms. Grigorescu’s activities with Friends

8 of CSM Gardens led to a lawsuit (the “Friends lawsuit”). Id. ¶ 19. Ultimately, the litigation made

9 its way to the California Supreme Court, and the court decided in favor of the plaintiffs in July

10 2017. Id. While the litigation was ongoing, in April 2011, the Board of Trustees openly attacked

11 faculty members and students who participated in the Friends lawsuit. Id. ¶ 20 (“the students

12 were badly led by some faculty representatives”).

13 Several days before filing of the Friends lawsuit in 2011, Ms. Grigorescu began to have

14 medical problems which required treatment. TAC ¶ 21. Joel (then-VCHR, i.e. Mr. Whitlock’s

15 predecessor) was resistant to her returning to work and made efforts to prevent her return. Id. ¶¶

16 22–24. After Ms. Grigorescu’s union intervened, she was allowed to resume her position as an

17 adjunct professor of physics. Id. ¶ 25. In 2013, Ms. Grigorescu began to have different medical

18 problems which required treatment, and Joel, Frontiera (Dean of the District’s Math and Science

19 division), and the District again made efforts to bar Ms. Grigorescu from working for the District.

20 Id. ¶¶ 28–32. Eventually, in January 2014, Ms. Grigorescu was allowed to return to work as a lab

21 technician, but the District gave the class that Ms. Grigorescu was scheduled to teach “to an

22 instructor with less seniority.” Id. ¶ 33.

23 Mr. Whitlock became VCHR in July 2014, although it is unclear when he fully assumed

24 the role. TAC ¶ 35 (After Mr. Whitlock assumed the position, Joel remained active handling

25 number of issues for a while). Mr. Whitlock, as outside County Counsel, previously represented

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1 Much of the facts alleged in the TAC are pled in the first amended complaint and in the second

1 the District in the Friends lawsuit. Id. After Mr. Whitlock assumed the VCHR position, a series

2 of firings began, and “[p]laintiff was among the first to be targeted and fired.” Id. Within weeks

3 after assuming the VCHR position, Mr. Whitlock—either acting alone or with an aid and

4 assistance of Frontiera2—subjected Ms. Grigorescu to various discriminatory incidents or actions

5 that had an effect of isolating Ms. Grigorescu from her professional community and preventing her

6 from supporting the Friends lawsuit. See id. ¶ 36. For instance, according to the TAC, Mr.

7 Whitlock attempted to bypass Ms. Grigorescu’s seniority right to which she was entitled by the

8 American Federation of Teachers union contract. Id ¶ 37.

9 On August 4, 2014, Human Resource informed Ms. Grigorescu that her pay was going to

10 be less than in the past due to the changes in HR policy that applies to employees holding both

11 faculty and staff positions. TAC ¶ 38. Ms. Grigorescu subsequently was paid only the base rate

12 for her work after hours, while other similarly situated employees were paid overtime. Id. Later

13 in August, Ms. Grigorescu obtained permission from Frontiera to take part in the UMOJA

14 community, an on-campus organization in support of minority communities in the District. Id. ¶

15 39. Frontiera permitted Ms. Grigorescu to attend the September 2014 UMOJA gathering. Id.

16 Three days after, however, Frontiera told Ms. Grigorescu that she cannot just leave work and

17 participate in various events on campus. Id. ¶ 40. In following three weeks, Ms. Grigorescu

18 consulted with her union representatives. Id. ¶ 41. Frontiera told Ms. Grigorescu’s

19 representatives that Ms. Grigorescu could not attend UMOJA because Ms. Grigorescu is white and

20 UMOJA is for students of color. Id. ¶ 42. Ms. Grigorescu was ultimately prevented from

21 interacting with UMOJA and, as a result, was unable to build her extracurricular portfolio

22 necessary to her professional growth in the District. Id. ¶ 42. When discussing the issues of unfair

23 treatment, discrimination, and lack of accommodations with Ms. Grigorescu’s union

24 representatives, Frontiera stated that she was following Mr. Whitlock’s orders and that any

25 conversation on the topic had to be carried on in the presence of Mr. Whitlock and Joel. Id. ¶ 43.

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2 The TAC contains some factual allegations regarding Frontiera’s retaliatory actions, but all

1 In September 2014, Frontiera sent an e-mail to Ms. Grigorescu that accused Ms.

2 Grigorescu of “double-dipping” her substitute teaching during her lab work hours. Upon Ms.

3 Grigorescu’s denial, Frontiera asked Ms. Grigorescu to provide official document showing her

4 presence in the office. TAC ¶ 44. Later, under the direction of Mr. Whitlock, Frontiera banned

5 Ms. Grigorescu from substitute teaching. Id. ¶ 45. Frontiera nonetheless permitted another lab

6 technician to continue to teach who was a male, not Romanian, and not involved in the Friends

7 lawsuit. Id.

8 In October 2014, Frontiera informed Ms. Grigorescu that the dean will consider Ms.

9 Grigorescu’s extracurricular activities in evaluating her teaching performance. TAC ¶ 46. A few

10 days later, Frontiera submitted Ms. Grigorescu’s teaching performance evaluation where Frontiera

11 marked lower performance ratings without justification. Despite Ms. Grigorescu’s request of

12 correction, Frontiera did not erase the lower ratings, which were recorded in Ms. Grigorescu’s file.

13 Id. ¶ 47.

14 Later in October 2014, for the first time in ten years, a full-time physics professor position

15 was approved by the District. Mr. Whitlock changed the policy regarding the minimum

16 qualification for the position, in order to create disadvantages to internal applicants like Ms.

17 Grigorescu. TAC ¶ 48. Within days after Ms. Grigorescu applied for the full-time position in

18 May 2015, Mr. Whitlock removed Ms. Grigorescu from the application pool for the full-time

19 physics position. Id. ¶ 49. With respect to Ms. Grigorescu’s educational credentials, Mr.

20 Whitlock claimed that she misrepresented her degree she received in Romania as a master’s

21 degree, although the degree is only equivalent to a bachelor’s degree. Id. ¶ 50. When Ms.

22 Grigorescu responded that other universities had recognized her Romanian degree as a master’s,

23 Mr. Whitlock called each educational institution. Id. ¶ 51. As a result of Mr. Whitlock’s calls,

24 some universities changed their designation of her degree from a master’s to bachelor’s, and one

25 university decided to offer no teaching appointments for the following year. Id. Later in 2015,

26 Ms. Grigorescu was ultimately not selected for the full-time teaching position despite her

27 qualification and teaching experience. See id. ¶¶ 52–61. Mr. Whitlock and Frontiera prevented

1 ¶¶ 62–63. Regarding her physical disabilities, Ms. Grigorescu additionally alleges in TAC that

2 other employees were allowed to teach despite physical disabilities because they were not

3 Romanian and were not involved in the Friends suit. Id. ¶ 63.

4 In May 2015, Mr. Whitlock told Ms. Grigorescu that she would be fired if she had not

5 resigned. TAC ¶ 67. In TAC, Ms. Grigorescu asserts that Mr. Whitlock’s attempt to terminate

6 her was motived by the fact that Ms. Grigorescu is Romanian and participated in the Friends

7 lawsuit. Id. Throughout 2015, the District attacked Ms. Grigorescu’s academic credentials

8 without justification and refused to accommodate her physical and emotional disabilities. Id. ¶¶

9 68–80.

10 In 2016, the District issued its first letter of suspension after Ms. Grigorescu notified the

11 District about her teaching at San Francisco State University (“SFSU”).3 TAC ¶ 81. After the

12 District retracted the first suspension, Mr. Whitlock reissued the letter of suspension and proposed

13 termination on the ground that Ms. Grigorescu missed six consecutive Fridays without prior

14 approval.4 Id. ¶ 84. Mr. Whitlock also attempted to reclassify Ms. Grigorescu as a temporary

15 employee who would not be eligible for grievance rights. Id. ¶ 87. During a Skelly hearing in

16 November 2016, the hearing officer found Ms. Grigorescu was entitled to accept the teaching

17 appointment at SFSU to mitigate her wage loss. Id. ¶ 91. The officer, however, recommended

18 termination of Ms. Grigorescu’s employment on the basis of Ms. Grigorescu’s misrepresentation

19 of her math minor and her Baccalaureates high school diploma. Id. ¶ 91.

20 In January 2017, Ms. Grigorescu’s employment was terminated, and she was banned from

21 coming on campus until September 27, 2018. TAC ¶¶ 92–93.

22 II. MOTION TO DISMISS

23 A. Legal Standard

24 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain

25

3 Plaintiff alleges that because the District only allowed Plaintiff to work as a lab technician,

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Plaintiff had suffered from economic hardship and accepted the teaching position at SFSU to

mitigate her wage losses. See TAC ¶ 76.

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1 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A

2 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil

3 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss

4 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic

5 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must

6 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765

7 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true

8 and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.

9 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a

10 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient

11 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself

12 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted).5 “A claim has facial

13 plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable

14 inference that the Defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The

15 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer

16 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).

17 B. Discussion

18 1. Race-Based Termination (42 U.S.C. § 1981)

19 To establish a race-based termination claim, a plaintiff must show that (1) she was a

20 member of a protected group; (2) she was qualified for the position; (3) she was discharged or

21 suffered an adverse employment action; and (4) similarly situated, non-protected employees were

22 treated more favorably. McDonnel Douglas Corp v. Green, 411 U.S. 792, 802 (1973). The Court

23 previously found that Ms. Grigorescu alleged the first three elements. See Order at 12. With

24 regard to (4), however, the Court found that Ms. Grigorescu failed to show that similarly situated,

25 non-protected employees were treated more favorably. Id. The Court specifically pointed that

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5 A court “need not . . . accept as true allegations that contradict matters properly subject to

1 Ms. Grigorescu did not allege that her replacement was hired at or close in time to her termination:

2 As to (4), [Ms. Grigorescu] alleges that an individual of a different

race and inferior qualifications filled her position. Her replacement

3 was not Romanian, recently received a master’s degree, and had less

teaching experience. [citation omitted.] However, [Ms. Grigorescu]

4 did not allege that her alleged replacement was hired at or close in

time to her termination. If there was a substantial gap of time

5 between her termination and subsequent replacement, the new

person may not be similarly situated, and thus inference of race-

6 based termination will be problematic.

7 Id. With that, the Court instructed Ms. Grigorescu to “set forth factual allegations that her

8 replacement assumed her prior position in a timeframe that would lead to a reasonable inference of

9 discrimination, provided that she can do consistent with Rule 11.” Id.

10 However, Ms. Grigorescu’s TAC contains no additional facts as to the time gap between

11 her termination and the hiring of her replacement. Instead, Ms. Grigorescu repeats her claims

12 asserting Mr. Whitlock’s violation of Section 1981, including claims for race-based harassment

13 that were previously dismissed without leave to amend. See Order at 14. Although the Court in

14 its last Order granted leave to amend only to her race-based termination claims, Ms. Grigorescu

15 realleges her Section 1981 claims altogether—race-based termination and race-based

16 harassment—under the title of “Race-Based Harassment (42 United States Code § 1981).” See

17 TAC at 24.

18 To the extent she attempts to replead, Ms. Grigorescu’s Section 1981 race-based

19 harassment claim remains DISMISSED with prejudice. See Tavake v. Alameda County Bd. Of

20 Supervisors, 2005 WL 2290308 at *3 (N.D. Cal. Sep. 20, 2005) (dismissing a claim with

21 prejudice that was previously dismissed with prejudice); Rodriguez v. L.A. Cty. Sheriff's Dep.,

22 2014 WL 12703416 at *2 (C.D. Cal. July 7, 2014) (granting a motion to dismiss, noting that

23 Plaintiff erroneously realleges claims against Defendant that the Court previously dismissed

24 without leave to amend).

25 Ms. Grigorescu renewed many race-based harassment factual allegations in support for her

26 unlawful termination claim. These allegations, as found previously, are conclusory and do not

27 lead to a reasonable inference they were based on race or national origin. Plaintiff failed to

1 Since Ms. Grigorescu fails to cure the deficiencies the Court raised in its last Order, her

2 Section 1981 claim is DISMISSED without leave to amend.

3 2. Retaliatory Harassment (42 U.S.C. § 1983)

4 a. Background

5 A plaintiff may assert a Section 1983 claim where a plaintiff alleges retaliation by state

6 actors for the exercise of the plaintiff’s First Amendment rights. See Mt. Healthy City Sch. Bd. Of

7 Educ. v. Doyle, 429 U.S. 274, 283–84 (1977). To state a claim for violation of First Amendment

8 under Section 1983, a plaintiff must show that (1) she was engaged in protected activity; (2) the

9 defendant took adverse employment action; and (3) her speech was a substantial or motivating

10 factor for the adverse employment action. Coszalter v. Cty. of Salem, 320 F.3d 968, 973 (9th Cir.

11 2003).

12 Here, parties do not dispute factor no. (2) that Mr. Whitlock took an adverse action against

13 Plaintiff. See Order at 13. The parties dispute, however, (1) whether Plaintiff was engaged in

14 protected activity; and (3) whether her allegedly protected activity was a substantial or motivating

15 factor for the adverse employment action. Id. As to (1), the Court previously found that Ms.

16 Grigorescu has made some allegations of her participation in the Friends lawsuit and has provided

17 details inferring that Mr. Whitlock had both constructive and actual notice of Ms. Grigorescu’s

18 participation in the lawsuit. Id. The Court noted, however, that Ms. Grigorescu failed to allege

19 facts showing the substantial or motivating factor. Id. The Court rejected Ms. Grigorescu’s

20 argument that the fact Mr. Whitlock served as counsel for the District in the lawsuit alone

21 establishes that Ms. Grigorescu’s participation in the suit was the substantial and motivating of

22 Mr. Whitlock’s adverse employment action.6 Id. at 13. The Court specifically pointed that

23 according to her second amended complaint, Mr. Whitlock’s first adverse action against Ms.

24 Grigorescu came years after the onset of the Friends suit and nine months after Mr. Whitlock

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6 Plaintiff nonetheless asserts in her opposition, “Defendant, as lead counsel representing the

District . . . was well acquainted with Plaintiff’s active role”. See Opp. at 3–4. Plaintiff contends

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that combined with Plaintiff’s strong reputation in the community, Defendant’s role as lead

1 assumed the VCHR position. Id. at 13–14. The Court concluded that the time gaps indicated a

2 lack of “temporal proximity” i.e., Ms. Grigorescu failed to establish a causal link between the

3 protected activity and the adverse actions. See id. 14. In addressing the Court’s concerns, counsel

4 for Ms. Grigorescu under Federal Rule of Civil Procedure 11 represented at the hearing:

5 [Ms. Grigorescu’s counsel] could supplement the pleadings with

additional factual allegations that [Mr. Whitlock] took adverse

6 actions against [Ms. Grigorescu] before he assumed the role of

VCHR. Stated differently, plaintiff’s counsel represented that there

7 are allegations that [Mr. Whitlock] adversely affected Plaintiff’s

appointment as early as 2011 (by influencing District employees

8 with decision-making authority vis-à-vis [Plaintiff’s] involvement

with Friends). He also represented there is evidence that [Mr.

9 Whitlock] took adverse action shortly after he became VCHR.

10 Id. (emphasis added). Based on Ms. Grigorescu’s counsel’s representation, the Court granted

11 leave to amend and specifically instructed Ms. Grigorescu to add factual allegations, if she could

12 under her Rule 11 obligations, showing (1) Mr. Whitlock’s adverse actions before he became

13 VCHR, i.e., as early as 2011; and (2) Mr. Whitlock’s adverse actions immediately after he

14 assumed the position in July 2014. Id.

15 Ms. Grigorescu accordingly amended her complaint. Although the TAC adds no

16 allegation regarding Mr. Whitlock’s action before he became the VCHR, it does add factual

17 allegations that Mr. Whitlock started retaliating shortly—within just weeks—after he assumed the

18 VCHR position in July 2014. See TAC ¶¶ 36–47.

19 b. Analysis

20 Whether an employment action is in retaliation for protected activities is a question of fact

21 that must be decided in the light of the timing and other surrounding circumstances. Coszalter,

22 320 F.3d at 977–78 [noting that there is no set time beyond which acts cannot support an inference

23 of retaliation]). A causal link between the protected activity and the adverse action “may be

24 inferred from circumstantial evidence, such as the employer’s knowledge that the plaintiff

25 engaged in protected activity and the proximity in time between the protected activity and the

26 allegedly retaliatory employment decision.” Yartfzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.

27 1987).

1 between her protected activity (the Friends lawsuit in 2011) and the first alleged adverse action

2 (May 2015); and (2) the time gap relating to the period Mr. Whitlock became VCHR (July 2014)

3 and the first alleged adverse action (May 2015).

4 As for (1), the Court notes that Ms. Grigorescu fails to add facts alleging adverse actions

5 before he became VCHR in July 2014. Ms. Grigorescu’s allegations as to Mr. Whitlock’s action

6 in 2011, 2012, or 2013 have remained unchanged from her previous pleading. The omission does

7 not necessarily end the inquiry.

8 A rule that any period over a certain time is per se too long (or,

conversely, a rule that any period under a certain time is per se short

9 enough) would be unrealistically simplistic. [Citation omitted]

Retaliation often follows quickly upon the act that offended the

10 retaliator, but this is not always so. For a variety of reasons, some

retaliators prefer to take their time: They may wait until the victim is

11 especially vulnerable or until an especially hurtful action becomes

possible. Or they may wait until they think the lapse of time

12 disguises their true motivation. We should be particularly sensitive

to this last point, for if we establish a per se rule that a specified time

13 period is too long to support an inference of retaliation, well-advised

retaliators will simply wait until that period has passed. Then—

14 provided that the retaliator has not revealed to others his intention,

and has not provided demonstrably false or pretextual reasons for

15 his act—he may retaliate with impunity.

16 Coszalter, 320 F.3d at 978.

17 The TAC strengthens the inference of retaliation, adding factual allegations of adverse

18 actions that started immediately after Mr. Whitlock became VCHR:

19 • Within weeks after assuming the VCHR position, Mr. Whitlock—either acting alone or

20 with an aid and assistance of Frontiera7—subjected Ms. Grigorescu to various

21 discriminatory incidents or actions that had an effect of isolating Ms. Grigorescu form

22 her professional community and preventing her from supporting the Friends lawsuit.

23 TAC ¶ 36;

24 • Mr. Whitlock attempted to bypass Ms. Grigorescu’s seniority right to which she was

25 entitled by the American Federation of Teachers union contract. Id. ¶ 37;

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7 The TAC contains some factual allegations regarding Frontiera’s retaliatory actions, but all

1 • Due to the HR policy change made in August 2014, Ms. Grigorescu subsequently was

2 paid only the base rate for her work after hours, while other similarly situated

3 employees were paid overtime. Id. ¶ 38;

4 • Frontiera prevented Ms. Grigorescu from participating in the UMOJA community, an

5 on-campus organization in support of minority communities in the District. Id. ¶¶ 39,

6 40. In discussing the issue with Ms. Grigorescu’s union representatives, Frontiera

7 stated that she was following Mr. Whitlock’s orders and that any conversation on the

8 topic had to be carried on in the presence of Mr. Whitlock and Joel. Id. ¶¶ 41–43;

9 • In October 2014, Frontiera informed Ms. Grigorescu that the dean will consider Ms.

10 Grigorescu’s extracurricular activities in evaluating her teaching performance. Id. ¶

11 46. Later, Frontiera submitted Ms. Grigorescu’s teaching performance evaluation

12 where Frontiera had marked lower ratings without justification. Id. ¶ 47.

13 The Court finds that these new allegations sufficiently plead a substantial and motivating

14 factor. Although the alleged retaliation occurs years after Mr. Whitlock’s involvement in the

15 lawsuit, he was not in a position to retaliate against Ms. Grigorescu since he did not work for the

16 District. In assessing the time proximity at issue, a fair argument can be made that the time should

17 be measured from the point at which Mr. Whitlock obtained the authority to adversely affect Ms.

18 Grigorescu’s employment—here within weeks of Mr. Whitlock actually taking over the VCHR

19 position. See Lindner v. Int'l Business Machines Corp., No. 06–CV–4751, 2008 WL 2461934, at

20 *7 (S.D.N.Y. June 18, 2008) (noting that “retaliation claims are rarely dismissed pursuant to Rule

21 12(b)(6) where the Plaintiff has alleged a time period of less than one year between the protected

22 activity and the alleged retaliatory conduct”).

23 Ms. Grigorescu further makes allegations that support inference of retaliatory motive by

24 Mr. Whitlock.

25 • Mr. Whitlock explained that he removed Ms. Grigorescu from the application pool

26 for the full-time teaching position, because base on his research, Ms. Grigorescu’s

27 master’s degree she received in Romania was only equivalent to a bachelor’s

1 50. Although Skelly hearing later recommended termination of Ms. Grigorescu’s

2 employment due to her alleged misrepresentation of her degrees, Ms. Grigorescu

3 maintains that her Romanian academic credentials are equivalent to master’s

4 degree, and thus Mr. Whitlock’s explanation is factually incorrect. Id. ¶ 91.

5 • Frontier—allegedly under the control and direction of Mr. Whitlock—explained

6 that Ms. Grigorescu could not teach, because her injuries would prevent her from

7 handing emergencies in class. Id. ¶ 62. Ms. Grigorescu contends that this

8 explanation is pretextual because other employees in similar situation were allowed

9 to teach despite their physical constraints. Id. ¶ 63.

10 • Mr. Whitlock issued the letter of suspension and termination on the grounds Ms.

11 Grigorescu missed six consecutive days.8 TAC ¶ 84. Ms. Grigorescu counters that

12 she is entitled to take three days off within her CFRA (California Family Rights

13 Act) leave and has a contractual right to take additional day for a sick leave. Id.

14 Mr. Whitlock nonetheless contends that Ms. Grigorescu fails to adequately plead the

15 element of substantial and motivating factor, because no facts suggest that Mr. Whitlock had any

16 knowledge of Plaintiff’s alleged First Amendment activities. Mot. at 7–8 (“distinct from the

17 litigation itself-was generally known to the community”). Particularly, with respect to the time

18 before he was hired by the District in July 2014, Mr. Whitlock contends that he was not aware of

19 Ms. Grigorescu’s activities in the Friends lawsuit, therefore could not take any action in

20 retaliation. Id.; see Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002)

21 (suggesting that, “for protected conduct to be a substantial or motiving factor in a decision, the

22 decisionmakers must be aware of the protected conduct”). The Court concludes that Ms.

23 Grigorescu sufficiently alleges that Mr. Whitlock had knowledge of Ms. Grigorescu’s activities at

24 issue. In TAC, Ms. Grigorescu specifically alleges that within weeks after Mr. Whitlock assumed

25 the VCHR position—when he took the adverse employment action for the first time, Mr. Whitlock

26 acted “because of Plaintiff’s protected activity.” TAC ¶ 36. Such an allegation is also implicit in

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1 Ms. Grigorescu’s assertion that Mr. Whitlock’s conduct “had the effect of dissuading [her] from

2 continuing to engage in protected activity; namely: her continuing support of the ongoing

3 lawsuit.” Id. Ms. Grigorescu alleges Defendant was aware of her activities when he committed

4 alleged retaliation. He was lead counsel for the defendant in the lawsuit. Id. ¶ 4. Ms. Grigorescu

5 has made sufficient allegations as to Mr. Whitlock’s knowledge. See Jones v. Quintana, 831 F.

6 Supp. 2d 75, 84–85 (D.D.C. 2011) (denying a motion to dismiss, because Plaintiff has sufficiently

7 pled Defendant’s knowledge by alleging that Defendant “was aware of [Plaintiff’s speech] by the

8 time Defendant took the challenged employment action for the first time).

9 To survive a motion to dismiss, plaintiffs need to only plausibly allege that retaliatory

10 animus was a substantial or motivating factor to state a First Amendment retaliation claim. See,

11 e.g., The Koala v. Khosla, 931 F.3d 887, 905 (9th Cir. 2019) (reversing the district court’s

12 dismissal of a Section 1983 claim, noting, “[a]t this early stage of litigation, [the Court] takes

13 [Plaintiff’s] allegations as true and construe them in the light most favorable to [Plaintiff]”); Ariz.

14 Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (circumstantial evidence

15 sufficiently establishes retaliatory intent for 12(b)(6) purposes). Here, Ms. Grigorescu added

16 factual allegations which in the aggregate may give rise to a plausible inference of retaliatory

17 motivation. Her theory of retaliation, even if vague, withstands a 12(b)(6) motion on the basis of

18 liberal rules of notice pleading. See Hansen v. Malloy, No. 3:10-CV-00110-RCJ-VP, 2010 WL

19 3070451, at *3 (D. Nev. Aug. 3, 2010).

20 Accordingly, Mr. Whitlock’s motion to dismiss Section 1983 claim for First Amendment

21 retaliation is DENIED.

22 III. MOTION TO STRIKE

23 Pursuant to Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or

24 any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). See also

25 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973–74 (9th Cir. 2010). The function of a

26 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating

27 spurious issues by dispensing with those issues prior to trial. Fantasy, Inc. v. Fogerty, 984 F.2d

1 Here, Mr. Whitlock moves to strike following from Ms. Grigorescu’s pleading:

2 • The claims against the District, Frontiera, and Joel as improper Defendants.

3 • The paragraphs concerning Ms. Grigorescu’s physical injury and/or disabilities.

4 • The paragraphs as to Mr. Whitlock’s adverse actions before he was employed with

5 the District.

6 • Ms. Grigorescu’s prayer for relief based on California Government Code Section

7 12965(b).

8 As to the claims against the District, Frontiera, and Joel, Mr. Whitlock asserts that all

9 claims against each of them have been dismissed by the Court’s previous orders. See Docket No.

10 40 (“MTS”) at 6. As to claims regarding Mr. Whitlock’s adverse action before July 2014 and

11 claims concerning Ms. Grigorescu’s physical injuries and disabilities, Mr. Whitlock contends that

12 Ms. Grigorescu’s allegations are impertinent and immaterial, and thus have no legal bearing on

13 Ms. Grigorescu’s claims for retaliatory harassment or for race-based termination. Id. As to the

14 prayer for relief under California Government Code Section 12965(b), Mr. Whitlock moves to

15 strike the prayer, on the ground that Ms. Grigorescu’s prayer for relief relies on California Fair

16 Employment and Housing Act (“FEHA”), under which Ms. Grigorescu had not brought a claim.

17 Id.

18 Because Ms. Grigorescu did not bring a claim based on FEHA, her prayer for relief relying

19 on FEHA should be stricken. All remaining parts of the pleading, however, survives 12(f) motion,

20 as they are neither immaterial or impertinent. Motions to strike are disfavored and “are generally

21 not granted unless it is clear that the matter to be stricken could have no possible bearing on the

22 subject matter of the litigation.” LeDuc v. Ky. Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D.

23 Cal. 1992).

24 Here, paragraphs concerning Ms. Grigorescu’s health issues and claims against the

25 District, Frontiera or Joel are not immaterial or impertinent for purposes of a Rule 12(f) motion.

26 In conjunction with other allegations, the claims at issue— although not essential to Plaintiff’s

27 claim or provides a direct basis of liability—might be probative of Mr. Whitlock’s actions in

1 may enhance her claim that Mr. Whitlock’s motive is retaliatory, contrary to his explanation that

2 || Ms. Georgescu was prevented from teaching on the basis of her health issues. Wynes v. Kaiser

3 Permanente Hosps., No. 2:10-CV-00702-MCE, 2011 WL 1302916, at *13 (E.D. Cal. Mar. 31,

4 || 2011). The claims against other defendants may further support her injuries suffered from their

5 alleged retaliation in connection with or under the control of Mr. Whitlock. See Colaprico v. Sun

6 || Microsystems, Inc. 758 F.Supp. 1335, 1340 (N.D. Cal. 1991).

7 Accordingly, Mr. Whitlock’s motion to strike Ms. Grigorescu’s prayer for relief based on

8 California Government Code Section 12965(b) is GRANTED. The motion to strike other

9 claims/allegations is DENIED.

10 IV. CONCLUSION

11 For the foregoing reasons, Mr. Whitlock’s motion to dismiss is granted in part and denied

12 || in part:

5 13 e The motion to dismiss Section 1981 claim for race-based termination is

GRANTED with prejudice;

3 15 e The motion to dismiss Section 1983 claim for retaliatory harassment is DENIED.

a 16 Mr. Whitlock’s motion to strike is granted in part and denied in part:

3 17 e The motion to strike prayer for relief based on California Government Code

Section 12965(b) is GRANTED;

19 e The motion to strike other claims are DENIED.

20 This order disposes of Docket Nos. 40 and 41.

21

22 IT IS SO ORDERED.

23

24 Dated: December 23, 2019

25

<4

ED M. CHEN

27 United States District Judge

28