# Bayne v. Bowles Hall Foundation

> District Court, N.D. California · November 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10069528

## Case

- **Court:** District Court, N.D. California
- **Decided:** November 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10069528

## How later opinions describe it (automated extraction)

- holding that Title VII framework governs Title IX retaliation 12 claims

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
MELISSA L. BAYNE,
7 Case No. 21-cv-01959-JCS
Plaintiff,
8 ORDER GRANTING MOTION TO
v. DISMISS THE REGENTS OF THE
9 UNIVERSITY OF CALIFORNIA FROM
BOWLES HALL FOUNDATION, et al., PLAINTIFF’S SECOND AMENDED
10 COMPLAINT PURSUANT TO RULE
Defendants. 12(B)(6)
11
Re: Dkt. No. 38
12

13 I. INTRODUCTION
14 Plaintiff Melissa Bayne brings this gender discrimination and retaliation case against the
15 Regents of the University of California (“Regents”) and the Bowles Hall Foundation (“the
16 Foundation”) based on the failure of the Foundation to renew her employment contract as dean of
17 Bowles Hall Residential College. On August 5, 2021, the Court dismissed Plaintiff’s claims
18 against the Regents with leave to amend, finding that she did not adequately allege that the
19 Regents were a joint employer as to her position or that the Regents knew or should have known
20 about the Foundation’s conduct but failed to undertake prompt corrective measures. Dkt. 34
21 (“August 5 Order”) at 29. Plaintiff filed a second amended complaint (“SAC”) in which she
22 attempted to cure these defects and the Regents have now brought a motion to dismiss the SAC
23 (“Motion”), arguing that it again fails to state any claim against the Regents. The Court finds that
24 the Motion is suitable for determination without oral argument and therefore vacates the motion
25 hearing set for November 19, 2021 at 9:30 a.m. pursuant to Civil Local Rule 7-1(b). The
26 Case Management Conference scheduled for the same date will be conducted at 2:00 p.m. on
27 November 19, 2021 rather than at 9:30 a.m. For the reasons set forth below, the Court
1 prejudice.1
2 II. BACKGROUND
3 The underlying factual allegations in the SAC are substantially the same as those in the
4 First Amended Complaint, which were described at length in the Court’s August 5 Order, and
5 therefore the Court does not summarize them here. Likewise, the claims asserted against the
6 Regents in the SAC are the same. However, Plaintiff has added a section to the complaint
7 addressing joint employer liability in which she alleges as follows:
8 III. JOINT EMPLOYER [LIABILITY] OF THE REGENTS FOR BOWLES
HALL’S ACTIONS TOWARD PLAINTIFF
9
35. The Regents exercise a great deal of control over the Foundation, rendering the
10
Regents jointly liable for the Foundation’s retaliatory actions toward Dr. Bayne.
11 Furthermore, the Regents knew or should have known about the Foundation’s retaliation
against Dr. Bayne.
12
A. The Regents Effectively Control the Foundation’s Operations
13
36. The Foundation leases the Bowles Hall building from the Regents. The lease spans a
14
40-year time period.
15
37. According to the lease, the Foundation and the Regents must comply with a
16 “Cooperation Agreement.” According to a “Cooperation Agreement” between the
Foundation and the Regents, the Foundation “acknowledges and agrees that [the
17 Regents] maintain[] campuswide policies and procedures for the Berkeley Campus as
listed on the Campus website or as otherwise provided to the [Foundation] and
18
occasionally adopts non-discriminatory amendments to such rules, regulations and
19 policies for the Berkeley Campus from time to time (such rules regulations and policies,
as so amended from time to time, the ‘Campus Rules’).” (emphasis in original).
20 According to this agreement, the Foundation “shall manage and operate [Bowles Hall] in
compliance with Campus Rules . . . .” According to the Berkeley Campus website,
21
Campus Rules “may be issued by the Board of Regents, the Office of the President, or
22 the campus.”

23 38. Campus Rules found on the campus website consist of 472 different policies issued
by the Office of the President alone. These policies cover a wide-ranging list of topics,
24 many of which relate to the Foundation’s operations, including polices requiring the
Foundation to “report[] to designated campus units . . . [any] sensitive or criminal
25
activity”, forbidding discrimination and retaliation in employment, requiring that all
26 forms provided to students or staff contain at least three options for gender identity,
27
establishing a reporting and investigation procedure for gender-based and race-based
1
harassment, establishing a reporting and investigation procedure for allegations of sexual
2 violence, detailing electronic information security protocols, providing specifications for
renovations of facilities, and a multitude of other topics.
3
39. In 2018, the Regents conducted an audit of the Bowles Hall. According to the results
4 of the audit, the “Campus Rules” that the Foundation must follow are so complex that the
Foundation’s full compliance with all of these Campus Rules imposed by the Regents is
5
unlikely. The auditor recommended that, in order to achieve the Regents’ goals for
6 Bowles Hall, by October 1, 2019, the Regents should implement a system whereby the
Regents “identify, prioritize, and communicate to Bowles Hall Foundation those key
7 rules and requirements that it should be aware of in its operation of Bowles Hall and the
residential college program.” The auditor warned that otherwise, it is likely that the
8 plethora of rules and regulations will prevent the “college dean or other responsible
parties at [Bowles Hall]” from complying with those rules that the Regents actually finds
9
important such as “reporting . . . sensitive or criminal activity” to representatives of the
10 Regents.

11 40. Moreover, the Regents are free to impose new rules and obligations on the
Foundation with no input from the Foundation. In fact, according to a 2018 audit of the
12 Foundation performed by the Regents, the auditor recommended that by October 1,
2019, the Foundation be obligated to complete “an annual certification process by which
13
the college dean or other designated representatives of the Foundation, certify
14 compliance with the articulated rules and requirements.” As noted, these rules and
requirements can cover virtually any subject and can be unilaterally imposed on the
15 Foundation by the Regents. The auditor suggested that “[c]ampus training and
informational resources could be made available to Bowles Hall staff to help them
16 understand and adhere to the [Regent’s] requirements.” The auditor further observed that
“Bowles Hall does not have a formal emergency operational plan or a business
17
continuity plan similar in rigor and detail to those required by campus units . . . .” The
18 auditor recommended that, by October 1, 2019, that the “Foundation develop a specific
emergency plan that will be submitted to the [Regents] for review.” The auditor stated
19 that the Regents can compel the Foundation to create such a plan “under the compliance
with ‘campus rules’ requirement of the [Cooperation Agreement].”
20
41. As such, the Regents had the authority to and did control the Foundation’s
21
operations, including the day to day responsibilities of its staff, by issuing “Campus
22 Rules,” which the Foundation is contractually obligated to follow.

23 42. In June of 2018, after Dr. Bayne complained about Dr. Varnich’s improper behavior,
the Regents’ general counsel instructed the Foundation to not “proceed with further
24
investigation [or] action [against Dr. Vranich] until [the Regents] complete[] [their]
25 investigation.” The Foundation complied with the Regents’ directive. As such, the
Regents exercise control over termination and discipline of Foundation employees.
26
43. The Regents also exercise control over the Foundation through its appointment of
27 members of the Foundation’s Board of Directors. Under the Cooperation Agreement
of the Campus faculty and one of the . . . Directors shall be a senior administrator on the
1
Campus.” According recommendations resulting from a 2018 audit of the Foundation by
2 the Regents, the Regents could “strengthen [their] oversight of the Bowles Hall
arrangement by creating an official charge from the [Regents] to its three representatives
3 serving on the Foundations board as to their fiduciary duty on behalf of the [Regents].”
The auditor recommended that by October 1, 2019, the Regents “will work with Bowles
4 Hall Foundation to establish official charge letters with terms of service for all UC
Berkeley faculty and staff that Serve on the Bowles Hall Foundation Board of Directors.”
5
Moreover, the Regents “will also implement an ‘annual report’ requirement
6 which will enable campus administration to be briefed on the programmatic, operational,
financial and compliance status of the residential college elements of Bowles Hall.”
7
44. In sum, the Regents exercise control over the operations of the Foundation through
8 representation on the Foundation’s board of directors, as well as through rules and
policies promulgated by the Regents that the Regents may unilaterally impose on the
9
Foundation and that may dictate virtually any aspect of the Foundation’s operations.
10
B. The Regents Knew or Should Have Known About The Foundation’s Retaliation
11 Against Dr. Bayne

12 45. The Board of Directors that decided to not renew Dr. Bayne’s contract contained two
senior administration officials: Robert Jacobsen, Dean of Undergraduate Studies at the
13
College of Letters and Science and Stephen Sutton, vice chancellor of the Student
14 Affairs Division. These board members were required to report the retaliation against Dr.
Bayne to the Berkeley Campus Title IX office.
15
16 SAC ¶¶ 35-45.
17 In the Motion, the Regents argue that Plaintiff still does not properly allege any adverse
18 employment action on the part of the Regents or a joint employer relationship with the
19 Foundation. Motion at 6-10. The Regents argue further that even if the allegations in the SAC
20 were sufficient to show a joint employer relationship, they do not establish that the Regents can be
21 held liable for the Foundation’s conduct because the SAC does not allege specific facts showing
22 that the Regents knew or should have known about Plaintiff’s termination but failed to undertake
23 prompt corrective measures. Id. at 10-11. Finally, the Regents argue that the claims against them
24 should be dismissed with prejudice and without leave to amend because Plaintiff has already been
25 given an opportunity to address these shortcomings and has been unable to establish a basis for
26 liability as to the Regents. Id. at 11-12. Therefore, they assert, amendment is futile. Id.
27 In her Opposition, Plaintiff argues that the allegations in the SAC establish that the
1 In particular, she points to the allegations that the 40-year lease between the Regents and the
2 Foundation requires that the Foundation comply with a Cooperation Agreement and that the
3 Cooperation Agreement, in turn, requires the Foundation to follow Campus Rules and gives the
4 Regents the right to appoint three members of the Foundation’s Board of Directors. Id. Plaintiff
5 also points to her allegations about a 2018 audit of Bowles Hall by the Regents in which the
6 auditor concluded the Campus Rules were too complex and therefore difficult to comply with and
7 recommended the Regents “identify, prioritize, and communicate to Bowles Hall Foundation those
8 key rules and requirements that it should be aware of in its operation of Bowles Hall and the
9 residential college program.” Id. at 8 (quoting SAC ¶ 39). In support of her assertion that the
10 Regents have control over discipline and termination of the Foundation employees, Plaintiff
11 points to her allegation that the Regents’ counsel instructed the Foundation not to “proceed with
12 further investigation [or] action [against Dr. Vranich] until [the Regents] complete[] [their]
13 investigation.” Id. at 9 (citing SAC ¶ 42).
14 In support of her assertion that the Regents can be held liable for her termination, Plaintiff
15 points to her allegation that two Foundation Board members who were appointed by the Regents
16 were senior administration officials and were required to report the retaliation against Dr. Bayne to
17 the Berkeley Campus Title IX office. Id. at 10 (citing SAC ¶ 45).
18 Plaintiff asks that she be permitted to amend the complaint if the Court finds that her
19 allegations regarding joint liability are not sufficient. Id. at 22.
20 III. ANALYSIS
21 A. Legal Standards Under Rule 12(b)(6)
22 A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure
23 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss
24 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp.
25 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage
26 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which
27 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing
1 In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and
2 takes “all allegations of material fact as true and construe[s] them in the light most favorable to the
3 non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
4 Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that
5 would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
6 1990). A complaint must “contain either direct or inferential allegations respecting all the material
7 elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v.
8 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,
9 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation
10 of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
11 (quoting Twombly, 550 U.S. at 555). “[C]ourts ‘are not bound to accept as true a legal conclusion
12 couched as a factual allegation.’ ” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.
13 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
14 ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
15 (alteration in original). Rather, the claim must be “ ‘plausible on its face,’ ” meaning that the
16 plaintiff must plead sufficient factual allegations to “allow [] the court to draw the reasonable
17 inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S.
18 at 570).
19 B. Legal Standards Governing Joint Employer Liability
20 Under Title VII, a plaintiff may have more than one “employer” for purposes of liability.
21 U.S.E.E.O.C. v. Global Horizons, Inc., 915 F.3d 631, 637 (9th Cir. 2019) (“The law recognizes
22 that two entities may simultaneously share control over the terms and conditions of employment,
23 such that both should be liable for discrimination relating to those terms and conditions.”). In
24 Global Horizons, the Ninth Circuit concluded that the common-law agency test governs the
25 determination of whether an entity is a joint employer in the Title VII context. Id. at 638. “Under
26 the common-law test, ‘the principal guidepost’ is the element of control—that is, ‘the extent of
27 control that one may exercise over the details of the work of the other.’ ” Id. (quoting Clackamas
1 omitted)). The Supreme Court has provided a non-exhaustive list of factors to consider when
2 analyzing whether the requisite control exists:
3 the skill required; the source of the instrumentalities and tools;
the location of the work; the duration of the relationship
4 between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the
5 hired party’s discretion over when and how long to work; the
method of payment; the hired party’s role in hiring and paying
6 assistants; whether the work is part of the regular business of
the hiring party; whether the hiring party is in business; the
7 provision of employee benefits; and the tax treatment of the
hired party.
8
9 National Mutual Ins. Co. v. Darden, 503 U.S.318, 323–24 (2003) (internal quotation marks
10 omitted). This test also applies in the context of Title IX. See Emeldi v. Univ. of Oregon, 673
11 F.3d 1218, 1223 (9th Cir. 2012) (holding that Title VII framework governs Title IX retaliation
12 claims).
13 California courts that have considered the meaning of “joint employer” under FEHA have
14 relied heavily on federal court decisions interpreting Title VII. Hall v. Apartment Inv. & Mgmt.
15 Co., No. C 08-03447 CW, 2011 WL 940185, at *5 (N.D. Cal. Feb. 18, 2011) (citing Vernon v.
16 State, 116 Cal. App. 4th 114, 123, (2004)). In Vernon, the court observed that “[t]he common and
17 prevailing principle espoused in all of the tests directs us to consider the ‘totality of
18 circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis
19 upon the extent to which the defendant controls the plaintiff’s performance of employment
20 duties.” 116 Cal. App. 4th at 124 (citations omitted). It listed the following factors that courts
21 consider in determining whether an entity is a joint employer:
22 Factors to be taken into account in assessing the relationship of the
parties include payment of salary or other employment benefits and
23 Social Security taxes, the ownership of the equipment necessary to
performance of the job, the location where the work is performed, the
24 obligation of the defendant to train the employee, the authority of the
defendant to hire, transfer, promote, discipline or discharge the
25 employee, the authority to establish work schedules and assignments,
the defendant’s discretion to determine the amount of compensation
26 earned by the employee, the skill required of the work performed and
the extent to which it is done under the direction of a supervisor,
27 whether the work is part of the defendant’s regular business
operations, the skill required in the particular occupation, the duration
employment.
1
2 Id. at 125 (citations omitted).
3 “[E]ven if a joint-employment relationship exists, one joint employer is not automatically
4 liable for the actions of the other.” Global Horizons, 915 F.3d at 641. Rather, liability may only
5 be imposed if the defendant employer knew or should have known about the other employer’s
6 conduct and failed to undertake prompt corrective measures. Id.
7 C. Discussion
8 Like the First Amended Complaint, the SAC does not allege any direct involvement by the
9 Regents in hiring Plaintiff, evaluating her performance or terminating her. To the contrary, the
10 SAC alleges it was the Foundation that did these things. See SAC ¶¶ 10 (“Dr. Bayne was hired by
11 the Foundation in or around August 2016”), 15 (“the Bowles Hall Foundation Board of Directors .
12 . . invited Dr. Bayne to discuss complaints regarding her performance as Dean of Students”), 20
13 (during “a conference call with the executive committee of the [Board of Directors] . . . President
14 John Baker chastised Dr. Bayne for reporting these incidents regarding Dr. Vranich to UC
15 Berkeley”), 31 (at a meeting of the BOD that Plaintiff “was asked to attend[ ] [s]he was informed
16 that Bowles Hall would not renew her contract for the 2019/2020 school year.”). Thus, the
17 Regents can only be liable on a joint employer theory. Considering the totality of the
18 circumstances as alleged in the SAC, however, the Court finds that Plaintiff has not alleged facts
19 that raise a plausible inference that the Regents and the Foundation were Plaintiff’s joint
20 employer. Therefore, the Court concludes Plaintiff’s claims against the Regents fail to state a
21 claim.
22 The SAC alleges that the Foundation leases Bowles Hall from the Regents, SAC ¶ 36,
23 arguably pointing in favor of a joint employer relationship under the Vernon factor that looks to
24 the location where the work is performed (on campus). See 116 Cal. App. 4th at 125. The
25 allegation that the lease between the Regents and the Foundation has a 40-year term, see id., is
26 another factor that supports such a finding. None of the remaining Vernon factors supports a
27 finding that the Regents were in a joint employer relationship as to Plaintiff’s employment with
1 Plaintiff’s salary, benefits, or Social Security taxes in connection with her job as dean or
2 determining the salary she would be paid. Nor does the SAC contain any allegations suggesting
3 the Regents provided “equipment” necessary for her to perform her position, supervised her work
4 or determined her assignments.
5 Plaintiff attempts to show that the Regents had authority with respect to hiring, disciplining
6 and termination based on the Foundation’s obligations under the Cooperation Agreement but those
7 allegations fall short. First, to the extent the Cooperation Agreement is alleged to require the
8 Foundation to adhere to the Campus Rules, Plaintiff’s allegations as the nature of those rules do
9 not raise a plausible inference that the Regents exercised control over the conditions of Plaintiff’s
10 employment. Rather, the description of the Campus Rules in the SAC indicates that while they
11 cover a “wide-ranging list of topics” they impose only general obligations that do not specifically
12 relate to Plaintiff’s employment as dean of Bowles Hall. See SAC ¶ 38 (alleging Campus Rules
13 cover policies “requiring the Foundation to ‘report[] to designated campus units . . . [any] sensitive
14 or criminal activity’, forbidding discrimination and retaliation in employment, requiring that all
15 forms provided to students or staff contain at least three options for gender identity, establishing a
16 reporting and investigation procedure for gender-based and race-based harassment, establishing a
17 reporting and investigation procedure for allegations of sexual violence, detailing electronic
18 information security protocols, providing specifications for renovations of facilities, and a
19 multitude of other topics”).
20 Likewise, allegations about recommendations that came out of a 2018 audit of Bowles Hall
21 by the Regents do not specifically relate to Plaintiff’s position. See SAC ¶¶ 39 (“The auditor
22 recommended that, in order to achieve the Regents’ goals for Bowles Hall, by October 1, 2019, the
23 Regents should implement a system whereby the Regents ‘identify, prioritize, and communicate to
24 Bowles Hall Foundation those key rules and requirements that it should be aware of in its
25 operation of Bowles Hall and the residential college program.’ ”), 40 (“the auditor recommended
26 that by October 1, 2019, the Foundation be obligated to complete ‘an annual certification process
27 by which the college dean or other designated representatives of the Foundation, certify
1 that these recommendations were implemented.
2 Moreover, even to the extent the Campus Rules give the Regents control over some aspects
3 of the “Foundation’s operations[,]” see SAC 41, Plaintiff has not alleged facts linking that control
4 to any specific aspect of Plaintiff’s performance of her job as dean of Bowles Hall. Nor has she
5 cited any authority suggesting that this type of general authority of one entity over another is
6 evidence of a joint employment relationship as to a specific employee. Finally, even if the
7 Regents have the authority to change the Campus Rules without consulting Bowles Hall, as
8 Plaintiff alleges, see SAC ¶ 40, the possibility that the Regents might in the future adopt rules that
9 directly relate to Plaintiff’s job at Bowles Hall is simply too speculative to support a finding that
10 the Regents are Plaintiff’s joint employer.
11 The Court also finds unpersuasive Plaintiff’s reliance on allegations that the Regents are
12 authorized under the Cooperation Agreement to appoint three members of the Foundation’s Board.
13 See SAC ¶ 43. There is no allegation that these three members constituted a majority such that
14 they controlled the Board; nor does the SAC allege any specific facts showing that board members
15 who were appointed by the Regents (only two are specifically listed), see SAC ¶ 45, exercised any
16 control over Plaintiff in her position as dean.
17 Plaintiff’s reliance on the allegation that the Regents asked the Foundation not to proceed
18 with its investigation of Dr. Vranich until they had finished their own investigation, see SAC ¶ 42,
19 is also misplaced. Assuming that actions taken in connection with Dr. Vranich can support an
20 inference as to the Regent’s control over Plaintiff’s termination and discipline (an inference that
21 the Court finds to be reasonable given that the two held the same position at Bowles Hall), the
22 allegation supports at most a very weak inference of control as it relates only to the timing of the
23 Foundation’s investigation and termination and not the Foundation’s findings or determination of
24 what discipline would be taken in light of those findings.
25 In sum, considering the totality of the circumstances, the Court finds that Plaintiff has
26 failed to allege facts sufficient to raise a plausible inference that the Regents were her joint
27 employer under either federal or California law. Consequently, all of the claims she asserts against
1 opportunity to amend the complaint to allege further facts in support of the Regents’ joint
2 || employer status, she has not pointed to any additional facts she could allege to cure the defects
3 identified above. As the Court has already given Plaintiff an opportunity to amend and she has not
4 || been able to allege facts sufficient to raise a plausible inference of joint employer liability, it
5 concludes that amendment is futile. See Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368
6 || F.3d 1053, 1061 (9th Cir. 2004) (holding that a district court does not err in denying leave to
7 amend where amendment would be futile) (citing Saul v. United States, 928 F.2d 829, 843 (9th
8 || Cir. 1991)).
9 || IV. CONCLUSION
10 The Motion is GRANTED. Plaintiffs claims against the Regents (Claims One, Two,
11 Three, Four and Seven) are dismissed with prejudice as to the Regents only. The Regents are
12 || dismissed from this case.
13 IT IS SO ORDERED.
14
15 || Dated: November 9, 2021
tens
J PH C. SPERO
17 ief Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10069528. Public record. Not legal advice.