Garrett v. Governing Board of Oakland Unified School District

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2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 GINA GARRETT, et al., Case No. 21-cv-03323-HSG

8 Plaintiffs, ORDER RE DEFENDANTS’ MOTIONS

TO DISMISS

9 v.

Re: Dkt. Nos. 14, 34

10 GOVERNING BOARD OF OAKLAND

UNIFIED SCHOOL DISTRICT, et al.,

11

Defendants.

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13 On May 4, 2021, Plaintiffs Leslie Tavernier (“Plaintiff Tavernier”) and Gina Garrett

14 (“Plaintiff Garrett”) brought this lawsuit alleging that they were unjustifiably and discriminatorily

15 disciplined and terminated by the Oakland Unified School District (“OUSD”). See Dkt. No. 1 (or

16 “Compl.”). The Complaint names as defendants the Governing Board of Trustees of the Oakland

17 Unified School District (the “OUSD Board”), as well as three OUSD employees—Kyla Johnson-

18 Trammell, Tara Gard, and Jenine Lindsey—who are being sued in their individual capacities

19 (collectively, the “Individual Defendants”). See id. Both the OUSD Board and the Individual

20 Defendants filed motions to dismiss the Complaint, and both motions are fully briefed. See Dkt.

21 Nos. 14 (“OUSD Mot.”), 16 (“OUSD Opp.”), 21 (“OUSD Reply”), 34 (“Mot.”), 48 (“Opp.”), and

22 51 (“Reply”).1 Having considered the parties’ arguments, the Court GRANTS the OUSD Board’s

23 Motion to Dismiss with prejudice and GRANTS IN PART and DENIES IN PART the

24 Individual Defendants’ Motion to Dismiss.2

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1 The Court finds the motion suitable for decision without oral argument and deems the matter

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submitted. See Civ. L.R. 7-1(b).

2 Both parties ask the Court to take judicial notice of numerous documents. See Dkt. Nos. 15, 17,

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and 29. The Court finds these documents unnecessary for the purposes of resolving the questions

I. BACKGROUND

1

Plaintiff Tavernier was employed by OUSD as the Financial Services Director of Budget.

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Compl. ¶ 5. In that capacity, she oversaw a staff of 14-16 financial analysts. Id. ¶ 18. The

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Complaint alleges that some of those financial analysts received stipends while four financial

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analysts—three of whom were Black employees approximately sixty years old—did not. Id.

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More specifically, the Complaint alleges that Defendant Tara Gard intentionally withheld the

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stipends from Tavernier’s employees. Id. ¶ 20. Tavernier opposed this perceived discrimination

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by processing the stipends herself without the approval of Human Resources. Id. As a result,

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Tavernier was put on administrative leave. Id. ¶ 21.

9

Jenine Lindsey, OUSD’s Director of Labor Relations, investigated Tavernier’s alleged

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misconduct. See id. ¶¶ 28-30. Plaintiff Tavernier alleges that, during this investigation, Jenine

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Lindsey falsely represented herself as a neutral arbiter and attorney despite ultimately being the

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prosecutor in Tavernier’s Skelly hearing. Id. Plaintiff Tavernier was ultimately terminated for

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financial mismanagement. Id. ¶ 21. Based on these facts, Plaintiff Tavernier brings three claims

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against the Individual Defendants and the OUSD Board: (1) federal claims for violation of the

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Equal Protection Clause of the Fourteenth Amendment; (2) federal claims for violation of the Due

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Process Clause of the Fifth and Fourteenth Amendments; and (3) a state law claim for violation of

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California’s Fair Employment and Housing Act (or “FEHA”). See id. at 6, 10, and 18.

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Plaintiff Gina Garrett was employed by OUSD as the Senior Executive Director of Budget.

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Id. ¶ 4. The Complaint alleges that the OUSD Board, through Defendant Kyla Johnson-Trammell,

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approved the hiring of Preston Thomas, a white man, to be the Chief Services & Support Officer,

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and Plaintiff Garrett’s supervisor, even though Thomas had no relevant experience in school

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finance or managing financial staff. Id. ¶ 36. When Defendant Johnson-Trammell told Plaintiff

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Garrett that Preston Thomas would be evaluating her, Plaintiff Garrett objected on the grounds

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that “he had no experience in anything that would allow him to fairly evaluate her.” Id. ¶ 40. She

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comb through the hundreds of pages of proposed exhibits and make rulings if an exhibit is not

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actually cited and specifically relied upon by a party.”) rev'd and remanded on other grounds, 843

1 then requested that someone from the County Office of Education evaluate her if no one at OUSD

2 was able to evaluate to do so. Id.

3 Plaintiff Garrett alleges that she was placed on paid administrative leave pending

4 investigation of misconduct on February 18, 2020. Id. ¶ 41. Although the Skelly hearing officer

5 issued a recommendation not to terminate Garrett, she was later notified that her position would be

6 eliminated due to lack of funds. Id. ¶ 52, 59. Plaintiff Garrett also alleges that OUSD violated the

7 California Education Code by later advertising a position similar to her old job without informing

8 her of the opening. Id. ¶¶ 59-62. Like Plaintiff Tavernier, Plaintiff Garrett brings three claims

9 against the Individual Defendants and the OUSD Board: (1) federal claims for violation of the

10 Equal Protection Clause of the Fourteenth Amendment; (2) federal claims for violation of the Due

11 Process Clause of the Fifth and Fourteenth Amendments; and (3) a state law claim for violation of

12 California’s FEHA. See id. at 11, 14, and 18.

13 II. LEGAL STANDARD

14 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain

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

16 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be

17 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the

18 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”

19 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule

20 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible

21 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible

22 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that

23 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

24 In reviewing the plausibility of a complaint, courts “accept factual allegations in the

25 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”

26 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless,

27 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of

1 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). And even

2 where facts are accepted as true, “a plaintiff may plead [him]self out of court” if he “plead[s] facts

3 which establish that he cannot prevail on his . . . claim.” Weisbuch v. Cty. of Los Angeles, 119

4 F.3d 778, 783 n.1 (9th Cir. 1997).

5 Even if the court concludes that a 12(b)(6) motion should be granted, the “court should

6 grant leave to amend even if no request to amend the pleading was made, unless it determines that

7 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203

8 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted).

9 III. DISCUSSION

10 The Complaint alleges that OUSD disciplined and terminated Plaintiffs in violation of their

11 federal Equal Protection and Substantive and Procedural Due Process rights under the U.S.

12 Constitution, as well as their rights under California’s Fair Employment and Housing Act

13 (“FEHA”). See generally Compl. Defendants’ motions seek to dismiss the Complaint in its

14 entirety. For the reasons explained below, the Court grants the OUSD Board’s Motion to Dismiss

15 with prejudice. The Court denies the Individual Defendants’ Motion to Dismiss only as to

16 Plaintiff Garrett’s sex discrimination claim and grants the motion as to the remaining claims.

17 A. Eleventh Amendment Immunity

18 The OUSD Board contends that it is immune from Plaintiffs’ claims under the doctrine of

19 sovereign immunity. See generally OUSD Mot. The Court agrees and dismisses the OUSD

20 Board from this action.

21 The Eleventh Amendment to the U.S. Constitution embodies the principle of “sovereign

22 immunity” and bars a federal court from hearing claims by private citizens against state

23 governments, their agencies, or the officials of those agencies unless the state consents to suit, or

24 Congress has expressly abrogated the state’s immunity. See Seminole Tribe v. Florida, 517 U.S.

25 44, 116 S. Ct. 1114 (1996); Natural Res. Def. Counsel v. Santa Monica Baykeeper, Inc., 96 F.3d

26 420, 421 (9th Cir. 1996). Ordinarily, courts in this Circuit apply a multi-factor balancing test to

27 determine whether a governmental agency is an “arm of the state” that is entitled to Eleventh

1 Cir. 1992). But because California’s school districts are “controlled and funded by the state

2 government rather than the local district,” the Ninth Circuit has held that they are “arms of the

3 state” under the Eleventh Amendment and are therefore entitled to sovereign immunity. Id. at

4 251; see also Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1122 (9th Cir. 2007)

5 (“[A] California school district and county office of education are arms of the state for purposes of

6 Eleventh Amendment sovereign immunity.”). There is no question, then, that OUSD is an “arm of

7 the state” entitled to Eleventh Amendment immunity from Plaintiffs’ claims.

8 In this case, however, Plaintiffs sued OUSD’s Governing Board of Trustees instead of

9 OUSD itself. But the Court does not find this to be a meaningful distinction. In California, the

10 authority of a school district’s governing board is coextensive with that of the school district itself.

11 See California Education Code § 35160 (“[T]he governing board of any school district may initiate

12 and carry on any program, activity, or may otherwise act in any manner which is not in conflict

13 with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes

14 for which school districts are established.”). Courts in this Circuit have accordingly reasoned that

15 Eleventh Amendment immunity also extends to governing boards. See Brouillette v. Montague

16 Elementary Sch. Dist., 2014 WL 2453036, at *2 (E.D. Cal. May 30, 2014) (“And to the extent that

17 a school board’s authority is coextensive with the authority of a school district under state law, a

18 school board in California is likewise a state agency for purposes of the Eleventh Amendment.”).3

19 The Court agrees with this reasoning and finds that the OUSD Board is an arm of the state for

20 purposes of Eleventh Amendment sovereign immunity.

21 There are three potential exceptions to sovereign immunity. A state may waive its

22 Eleventh Amendment defense; Congress may abrogate the states’ sovereign immunity by acting

23 pursuant to a grant of constitutional authority; and a plaintiff may seek prospective injunctive

24 relief to remedy violations of federal law under the Ex Parte Young doctrine. See Douglas v. Cal.

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3 See also Marin v. Eidgahy, No. 10-CV-1906-MMA-RBB, 2012 WL 928250, at *4 (S.D. Cal.

Mar. 19, 2012); Windsor v. Marin Cty. Off. of Educ., No. 07-CV-02897 JSW, 2008 WL 360454, at

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*3 (N.D. Cal. Feb. 8, 2008); Porter ex rel. Porter v. Bd. of Trustees of Manhattan Beach Unified

1 Dep’t of Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001). Plaintiffs have not alleged that either of

2 the first two exceptions apply, and the Ex Parte Young doctrine plainly does not apply here

3 because Plaintiffs primarily seek monetary damages to remedy retrospective harms. See Compl. at

4 19-22. And to the extent the Complaint states plausible claims for injunctive relief, Plaintiffs lack

5 standing to pursue them because the Complaint does not demonstrate that Plaintiffs are likely to

6 suffer similar injuries in the future—particularly since both Plaintiffs are no longer employed by

7 OUSD. See Caldwell v. Lefaver, 928 F.2d 331, 335 (9th Cir. 1991) (“An individual’s past

8 exposure to alleged unlawful conduct is insufficient to establish standing to seek injunctive relief;

9 instead, an individual must demonstrate the likelihood of similar injury in the future.”).

10 For those reasons, the Court concludes that the OUSD Board is immune from Plaintiffs’

11 claims. Those claims are accordingly DISMISSED with prejudice and without leave to amend,

12 and the OUSD Board is DISMISSED from this action.

13 B. Fourteenth Amendment Equal Protection Clause

14 Both Plaintiffs bring multiple Equal Protection claims against the Individual Defendants.

15 As currently pled, the Court finds that only Plaintiff Garrett’s sex discrimination claim states a

16 claim upon which relief can be granted and accordingly dismisses the remaining claims.

17 The Equal Protection Clause of the Fourteenth Amendment provides that no state shall

18 “deny to any person within its jurisdiction the equal protection of the laws” and therefore requires

19 the state to treat all “similarly situated” people equally. See Shakur v. Schriro, 514 F.3d 878, 891

20 (9th Cir. 2008). To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection

21 Clause, a plaintiff must show that the defendant acted with an “intent or purpose to discriminate

22 against the plaintiff based upon membership in a protected class.” Furnace v. Sullivan, 705 F.3d

23 1021, 1030 (9th Cir. 2013). That is, a plaintiff must show that the defendant acted in a

24 “discriminatory manner” and that the discrimination was “intentional.” Bingham v. City of

25 Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003). “Intentional discrimination” means that a

26 defendant acted “at least in part because of a plaintiff’s protected status.” Serrano v. Francis, 345

27 F.3d 1071, 1082 (9th Cir. 2003).

1 two bases. The first claim alleges that Plaintiff Tavernier was terminated for opposing the alleged

2 discrimination and differential treatment of the African-American and older financial analysts who

3 did not receive stipends. See Compl. ¶ 21. As currently alleged, this count does not state a

4 plausible claim for denial of equal protection because it does not allege that Plaintiff Tavernier’s

5 discipline was motivated by any discriminatory intent based on her protected class or status.

6 The second claim alleges that Plaintiff Tavernier suffered “differential treatment” because

7 she was disciplined for her unauthorized disbursement of stipends while another District

8 employee, Defendant Tara Gard, was not disciplined for similar conduct. Id. ¶¶ 23-24. This count

9 similarly fails to allege facts plausibly supporting the claim that Plaintiff Tavernier’s “differential

10 treatment” was motivated by any discriminatory intent based on her protected class or status. The

11 Court accordingly finds that Plaintiff Tavernier has not stated a plausible claim for violation of the

12 Equal Protection Clause. Because it is unclear whether Plaintiff Tavernier’s claims could be cured

13 by the allegation of other facts, the Court dismisses her Equal Protection Claims with leave to

14 amend.

15 Plaintiff Garrett also brings Equal Protection claims against the Individual Defendants.4

16 She first alleges that Defendant Kyla Johnson-Trammell approved the hiring of a white man,

17 Preston Thomas, to be the Chief Services & Support Officer and her supervisor at a pay rate

18 higher than hers, even though Thomas had no relevant experience in school finance or managing

19 financial staff. Id. ¶ 36. Plaintiff Garrett further alleges that, in hiring Thomas over her,

20 Defendants “disregarded” the fact that she had, among other things: (1) more than 28 years of

21 experience in School Finance; (2) a bachelor’s degree in school finance and a master’s degree in

22 education leadership; (3) and experience filling vacancies for OUSD in both the Chief Financial

23 Officer and Chief Business Officer positions. See id. ¶¶ 4, 36-37. The Court finds that these

24 allegations state a plausible prima facie sex discrimination claim under the Equal Protection

25 Clause.

26 To state such a claim, a plaintiff may establish that government action was motivated by a

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1 discriminatory purpose by producing direct or circumstantial evidence demonstrating that a

2 discriminatory reason “more likely than not” motivated the defendant and that the defendant’s

3 actions “adversely affected” the plaintiff in some way. See Ballou v. McElvain, 14 F.4th 1042,

4 1050 (9th Cir. 2021). Under the burden-shifting framework set out in McDonnell Douglas Corp.

5 v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), a plaintiff may make out a prima facie case of

6 discrimination by demonstrating that: (1) she is a member of a protected class; (2) she was

7 qualified for her position; (3) she experienced an adverse employment action; and (4) similarly

8 situated individuals outside her protected class were treated more favorably. Ballou, 14 F.4th at

9 1050 (citing Freyd v. Univ. of Oregon, 990 F.3d 1211, 1228 (9th Cir. 2021)).

10 Plaintiff Garrett’s allegations do so. As a woman, she is a member of a protected class

11 who was allegedly qualified for her position but nevertheless experienced an adverse employment

12 action compared to an individual (Preston Thomas) outside of her class. See Compl. ¶¶ 4, 36.

13 Assuming the Complaint’s allegations are true, as the Court must at this stage in the litigation,

14 they plausibly allege that Defendant Kyla Johnson-Trammell’s hiring of Preston Thomas over

15 Plaintiff Garrett was more likely than not motivated by a discriminatory purpose and that those

16 actions adversely affected Garrett. Whether Garrett can prevail on the merits of her claim is an

17 issue for a later day.

18 The Individual Defendants’ main argument to the contrary is that Plaintiff Garrett’s Equal

19 Protection Claim is an “impermissible class-of-one claim” because it is “based solely on the

20 notion that a less-qualified ‘White Male employee (Preston Thomas)’ was hired for a position to

21 which Garrett felt she was entitled.” See Reply at 7-8. This argument misunderstands the class-

22 of-one doctrine. Although equal protection jurisprudence is typically concerned with

23 governmental classifications that affect groups of citizens differently than others, the U.S.

24 Supreme Court has recognized that “an equal protection claim can in some circumstances be

25 sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that

26 she has been irrationally singled out as a so-called ‘class of one.’” Engquist, 553 U.S. at 601

27 (emphasis added). Here, however, Plaintiff Garrett has alleged class-based sex discrimination.

1 woman, was entitled. See Compl. ¶¶ 4, 36. The class of one theory therefore does not apply.

2 Because Plaintiff Garrett has stated a plausible prima facie claim that she was subjected to

3 discriminatory treatment because of her sex in violation of the Equal Protection Clause of the

4 Fourteenth Amendment, the Court denies the Individual Defendants’ motion to dismiss this claim

5 in its entirety. However, because the Complaint does not allege that Defendants Tara Gard or

6 Jenine Lindsey were involved in the hiring of Preston Thomas over Plaintiff Garrett, those

7 defendants are dismissed from Plaintiff Garrett’s sex discrimination claim.

8 C. Fourteenth Amendment Retaliation

9 Both Plaintiffs also bring Fourteenth Amendment Equal Protection claims that sound in

10 retaliation theories. For instance, Plaintiff Tavernier alleges that she was terminated for opposing

11 the differential treatment of African-American and older financial analysts who did not receive

12 stipends. See Compl. ¶ 21. And Plaintiff Garrett’s second count of her Equal Protection Claim

13 alleges that, after she objected to Preston Thomas evaluating her performance, Defendant Johnson-

14 Trammell “retaliated” against her by placing her on administrative leave pending investigation of

15 charges of misconduct. See Compl. ¶¶ 40-44. The Individual Defendants contend that, to the

16 extent Plaintiffs assert equal protection liability based on alleged retaliation, their claims are not

17 actionable under the Fourteenth Amendment. See Mot. at 13, 18.

18 No Ninth Circuit or U.S. Supreme Court case has held that a retaliation claim cannot be

19 brought under the Equal Protection Clause. But some courts in this Circuit have reasoned that

20 disparate treatment stemming from retaliation for speech or conduct does not implicate the

21 Fourteenth Amendment.5 Other Circuits agree.6 The Court need not resolve this question today,

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5 See, e.g., Mazzeo v. Gibbons, No. 2:08-CV-01387-RLH, 2010 WL 4384207, at *5 (D. Nev. Oct.

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28, 2010) (“The Court concludes that [Plaintiff’s] allegations impermissibly combine her First

Amendment Retaliation and Fourteenth Amendment Equal Protection claims.”), aff'd sub nom.

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Mazzeo v. Young, 510 F. App’x 646 (9th Cir. 2013); Occhionero v. City of Fresno, No. 05-CV-

1184 LJO-SMS, 2008 WL 2690431, at *8 (E.D. Cal. July 3, 2008) (“[T]his Court agrees with

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other courts that a claim of different treatment in retaliation for speech is a First Amendment claim

which does not invoke the Equal Protection Clause. At its core, [Plaintiff’s] claim is First

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Amendment retaliation, not equal protection.”), aff’d, 386 F. App’x 745 (9th Cir. 2010).

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6 See, e.g., Maldonado v. City of Altus, 433 F.3d 1294, 1308 (10th Cir. 2006) (“To the extent that

1 however, because even if Plaintiffs’ retaliation claims could be stated under the Fourteenth

2 Amendment, the Individual Defendants would be shielded from them by the doctrine of qualified

3 immunity.

4 Under that doctrine, government officials performing discretionary functions are immune

5 from liability for civil damages so long as their conduct does not violate “clearly established

6 statutory or constitutional rights of which a reasonable person would have known.” Harlow v.

7 Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982). To determine whether qualified immunity

8 applies, courts consider (1) whether the plaintiff has sufficiently pled a violation of a constitutional

9 right; and (2) whether the right at issue was “clearly established” at the time of defendant’s alleged

10 misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts have discretion to decide

11 which of the two prongs of qualified-immunity analysis to analyze first. Ashcroft v. al-Kidd, 563

12 U.S. 731, 735, 131 S. Ct. 2074, 2080 (2011).

13 As to the second prong, the constitutional right must be “sufficiently clear that every

14 reasonable official would have understood that what he is doing violates that right.” Taylor v.

15 Barkes, 575 U.S. 822, 825 (2015) (citations omitted). A case “directly on point” is not required,

16 but “existing precedent must have placed the statutory or constitutional question beyond debate.”

17 Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011). Granting a Rule 12(b)(6)

18 motion to dismiss based on qualified immunity is only appropriate if the Court can determine from

19 the face of the complaint that qualified immunity applies. Groten v. Calif., 251 F.3d 844, 851 (9th

20 Cir. 2001).

21 Assuming without deciding that Plaintiffs can state retaliation claims under the Fourteenth

22 Amendment, the conduct alleged in the Complaint would not violate a “clearly established”

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within § 1983”) (citations and quotation marks omitted); Kirby v. City of Elizabeth City, N.

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Carolina, 388 F.3d 440, 447 (4th Cir. 2004) (“The claims based on the allegation that [Plaintiff]

was treated differently in retaliation for his speech are, at their core, free-speech retaliation claims

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that do not implicate the Equal Protection Clause.”) (citations and quotation marks omitted);

Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) (“A pure or generic retaliation claim,

26

however, simply does not implicate the Equal Protection Clause.”); Grossbaum v. Indianapolis–

Marion County Bldg. Auth., 100 F.3d 1287, 1296 n. 8 (7th Cir. 1996) (Equal Protection Clause

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“does not establish a general right to be free from retaliation”); Bernheim v. Litt, 79 F.3d 318, 323

1 constitutional right. See Fountain v. Arizona, 2021 WL 5014090, at *4 (D. Ariz. Oct. 28, 2021)

2 (“Even if the Court were to find that Plaintiff’s retaliation claim could be stated under the

3 Fourteenth Amendment, it would not suffice to be a ‘clearly established’ right, and [Defendant]

4 would be protected by qualified immunity.”). As noted above, it is undisputed that neither the U.S

5 Supreme Court nor the Ninth Circuit has recognized an Equal Protection Claim as viable under a

6 retaliation theory like the one in this case. The constitutional question at issue here thus cannot be

7 said to be “beyond debate,” as reflected in disparate decisions as to whether a retaliation claim can

8 ever be stated under the Fourteenth Amendment. Compare Knox v. City of Portland, No. 06-CV-

9 459-HA, 2006 WL 2233482, at *3 (D. Or. Aug. 3, 2006) (“[T]his court concludes that plaintiff is

10 precluded from bringing a retaliation claim under 42 U.S.C. § 1983 based on alleged violations of

11 her Equal Protection rights.”); with Ballou v. McElvain, No. 19-CV-5002-RBL, 2020 WL

12 1904062, at *4 (W.D. Wash. Apr. 17, 2020) (recognizing that whether an Equal Protection claim

13 may be based on retaliation “is a close question,” but finding such a claim “plausible” in the

14 absence of a Ninth Circuit or Supreme Court case holding otherwise), aff’d on different grounds,

15 14 F.4th 1042 (9th Cir. 2021).

16 The Court can therefore determine from the face of the complaint that the Individual

17 Defendants are shielded by the doctrine of qualified immunity. To the extent Plaintiffs attempt to

18 plead retaliation claims against the Individual Defendants under the Fourteenth Amendment, those

19 claims fail as a matter of law and are DISMISSED without leave to amend.

20 D. Procedural Due Process

21 Both Plaintiffs bring multiple Procedural Due Process claims against the Individual

22 Defendants under the Fifth and Fourteenth Amendments of the U.S. Constitution. See Dkt. No. 1

23 at 10, 14. Plaintiffs’ Fifth Amendment claims are dismissed with prejudice and without leave to

24 amend because the defendants here are state officials, and the Fifth Amendment only applies to the

25 federal government. See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). The

26 Individual Defendants contend that Plaintiffs’ Fourteenth Amendment Procedural Due Process

27 Claims also fail because Plaintiffs fail to allege that they took advantage of remedies available to

1 Procedural due process claims under Section 1983 are generally barred when an adequate

2 remedy exists under state law. See Lake Nacimiento Ranch Co. v. San Luis Obispo Cty., 841 F.2d

3 872, 879 (9th Cir. 1987) (citing Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908 (1981)).

4 Here, the Complaint does not allege, and the Opposition Brief does not contend, that

5 Plaintiffs took advantage of adequate and available state remedies by filing a writ of mandamus

6 under Section 1094.5 of the California Code of Civil Procedure to challenge their adverse

7 administrative decisions. See Arroyo Vista Partners v. Cty. of Santa Barbara, 732 F. Supp. 1046,

8 1053 (C.D. Cal. 1990) (“[R]elief pursuant to a Writ of Mandate under § 1094.5 of the California

9 Code of Civil Procedure is available to challenge the substance and evidentiary basis for a

10 decision, and also extends to whether the Board proceeded in a manner that denied the plaintiff a

11 fair hearing or otherwise suffered from procedural deficiencies in rendering its administrative

12 decisions.”). The Court therefore finds that Plaintiffs have not stated a cognizable procedural due

13 process claim because adequate state remedies are still available. See Killgore v. City of S. El

14 Monte, No. 19-CV-00442-SVW-JEM, 2019 WL 8105371, at *12 (C.D. Cal. Dec. 19, 2019) (“This

15 Court agrees with other California district courts that the specific remedies available to Plaintiff

16 under state law— namely administrative mandamus under § 1094.5 and appeal to state superior

17 court under Cal Gov't Code § 53069.4 make it impossible to sustain a procedural due process

18 challenge here.”).7 Plaintiffs’ Procedural Due Process Claims are accordingly DISMISSED.

19 Plaintiffs may amend their complaint to allege, if true, that they exhausted all the state remedies

20 available to them.

21 //

22

23

7 See also Patel v. City of S. El Monte, No. CV 18-04077-GW, 2019 WL 1785440, at *8 (C.D.

24

Cal. Jan. 14, 2019) (“Plaintiffs cannot sustain their procedural due process claim because there are

adequate state remedies available to challenge the administrative officer’s decision. Specifically,

25

‘[f]ines and penalties imposed by local agencies can be reviewed by either administrative

mandamus under [Cal. Civ. Proc. Code] § 1094.5 or a de novo action in superior court’ under

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California Government Code § 53069.4(b)(1).”), aff'd in part, rev'd in part and remanded, 827 F.

App'x 669 (9th Cir. 2020); MHC Fin. Ltd. P'ship Two v. City of Santee, No. 12-CV-0253 W DHB,

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2012 WL 6675279, at *2 (S.D. Cal. Dec. 21, 2012) (“It is well settled that a procedural due

E. Substantive Due Process

1

Both Plaintiffs also bring Substantive Due Process claims against the Individual

2

Defendants under the Fourteenth Amendment. See, e.g., Compl. at 10, 14. To establish a

3

substantive due process claim, a plaintiff must as a threshold matter show a government

4

deprivation of life, liberty, or property. Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.

5

1998). Because neither Plaintiff has done so, the Court dismisses their Substantive Due Process

6

claims.

7

Both Plaintiffs contend that, as permanent employees, they had property rights and liberty

8

interests in their continued employment with OUSD. See Compl. ¶¶ 32, 48.

9

The Court first considers the alleged property interest. To begin with, Plaintiffs do not cite

10

any precedent establishing a substantive due process right to continued employment. Nor could

11

they. No Supreme Court or Ninth Circuit case has held that substantive due process protects the

12

right to a particular public employment position. See Engquist v. Oregon Dep't of Agric., 478 F.3d

13

985, 996–97 (9th Cir. 2007) (“[M]ost courts have rejected the claim that substantive due process

14

protects the right to a particular public employment position, and we have yet to decide the

15

issue.”), aff'd sub nom. Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 128 S. Ct. 2146 (2008).

16

Courts in this District have accordingly found it “unclear” whether there is any substantive due

17

process right in continued employment. See, e.g., Richter v. Ausmus, No. 19-CV-08300-WHO,

18

2020 WL 1429758, at *4 (N.D. Cal. Mar. 24, 2020) (“Courts have found that it is unclear whether

19

a substantive due process right in continued employment exists” (citations and punctuation

20

omitted)); Moody v. Cty. of Santa Clara, No. 5:15-CV-04378-EJD, 2019 WL 6311406, at *5

21

(N.D. Cal. Nov. 25, 2019) (“[W]hether a substantive due process right in continued employment

22

even exists is unclear.”).

23

It follows that even if Plaintiffs could state plausible substantive due process claims based

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on their property interests in continued employment, the Individual Defendants would be shielded

25

from such claims by the doctrine of qualified immunity. That is so because the conduct alleged

26

would not violate a “clearly established” constitutional right under Supreme Court (or even Ninth

27

Circuit) case law. See, e.g., Harlow, 457 U.S. at 818, 102 S. Ct. at 2738 (“[G]overnment officials

1 performing discretionary functions generally are shielded from liability for civil damages insofar

2 as their conduct does not violate clearly established statutory or constitutional rights of which a

3 reasonable person would have known.”); Cooper v. Cate, No.10-CV-899-AWI-DLB, 2011 WL

4 5554321, at *5 (E.D. Cal. Nov. 15, 2011) (“In light of the circuit split and the silence of the Ninth

5 Circuit, a reasonable official in the Defendants’ positions would not have known that their conduct

6 violated the Fourteenth Amendment’s substantive due process protections.”). The Court can thus

7 determine from the face of the Complaint that Plaintiffs have not pled and cannot plead a

8 substantive due process claim against the Individual Defendants for deprivation of their property

9 interests in continued employment.

10 Plaintiffs also have not pled deprivation of a protected liberty interest. While the Ninth

11 Circuit has recognized a substantive due process right to occupational liberty, this narrow right

12 only protects against “government employer actions that foreclose access to a particular profession

13 to the same degree as government regulation.” Engquist, 478 F.3d at 998. A substantive due

14 process claim based on the violation of this right is limited to “extreme cases,” such as a

15 “government blacklist, which when circulated or otherwise publicized to prospective employers

16 effectively excludes the blacklisted individual from his occupation, much as if the government had

17 yanked the license of an individual in an occupation that requires licensure.” Id. at 997-98

18 (citations and quotation marks omitted).

19 Because the Complaint does not allege that any of the Individual Defendants’ actions

20 foreclosed Plaintiffs’ access to their respective professions, the Court finds that the Complaint has

21 not pled a plausible substantive due process claim for government deprivation of occupational

22 liberty. Plaintiffs’ Substantive Due Process claims are accordingly DISMISSED. While it

23 appears unlikely that Plaintiffs can plead a substantive due process claim for occupational liberty

24 based on the alleged fact pattern, the Court will nevertheless allow leave to amend this claim.

25 F. FEHA

26 Both Plaintiffs seek to assert claims based on alleged violations of California’s Fair

27 Employment and Housing Act. See Compl. ¶¶ 67, 69. To do so, the Complaint first states the

1

Plaintiff TAVERNIER [GARRETT] incorporates by reference all

2 allegations contained in this complaint describing the wrongful

employment practices against her and, asserts that DEFENDANTS’

3 actions herein amount to violations of FEHA.

4 See Compl. ¶¶ 67, 69. It should go without saying that this conclusory pleading—which fails to

5 specify which of the Individual Defendants committed the alleged violation and does not contain

6 even a bare recitation of the elements of a FEHA claim—does not meet federal pleading

7 requirements. See Fed. R. Civ. P. 8; see also Twombly, 550 U.S. at 570. Plaintiffs’ FEHA claims

8 are accordingly dismissed but with leave to amend.

9 Should Plaintiffs choose to amend their FEHA claims, they must comply with all relevant

10 legal requirements. Plaintiffs should first note the California Supreme Court has made clear that

11 individuals (like the Individual Defendants here) cannot be held liable under FEHA for claims

12 based on discrimination or retaliation. See Reno v. Baird, 18 Cal. 4th 640, 643 (1998); Jones v.

13 Lodge at Torrey Pines P'ship, 42 Cal. 4th 1158, 1160 (2008). Plaintiffs should also note that the

14 findings from their respective Skelly decisions may be binding in this civil action unless Plaintiffs

15 prove that they first exhausted their judicial remedies by filing a writ of mandate in state court to

16 get their respective Skelly decisions overturned. See Miller v. City of Los Angeles, 169 Cal. App.

17 4th 1373, 1379, 87 Cal. Rptr. 3d 510, 514 (2008) (“[U]nless a party to a quasi-judicial proceeding

18 challenges the agency’s adverse findings made in that proceeding, by means of a mandate action

19 in superior court, those findings are binding in later civil actions.”).

20 IV. CONCLUSION

21 The Court GRANTS the OUSD Board’s Motion to Dismiss with prejudice and dismisses

22 the OUSD Board from this action with prejudice. The Court also GRANTS IN PART and

23 DENIES IN PART the Individual Defendants’ Motion to Dismiss. Specifically, the Court denies

24 the Individual Defendant’s motion as to Plaintiff Garrett’s sex discrimination claim against

25 Defendant Kyla Johnson-Trammell but grants the motion as to the remaining claims. Any

26 amended complaint must be filed within 28 days from the date of this Order. Plaintiff may not

27

1 add any new causes of action or defendants to an amended complaint.®

2 Finally, the Court SETS a telephonic case management conference on March 8, 2022, at

3 |} 2:00 p.m. All counsel shall use the following dial-in information to access the call:

4 Dial-In: 888-808-6929;

5 Passcode: 6064255

6 || For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all

7 possible, parties shall use landlines. The parties shall file a joint case management statement no

8 later than one week before the case management conference. This Order TERMINATES Docket

9 Nos. 14 and 34.

10 IT IS SO ORDERED.

11 Dated: 2/4/2022

2 Alayred §

HAYWOOD S. GILLIAM, JR.

13 United States District Judge

15

16

17

Z 18

19

20

71 Plaintiff Tavernier requests leave to add a claim based on the Age Discrimination in

92 || Employment Act (ADEA). See Opp. at 18. Granting this request would be futile because her

ADEA claim would necessarily be subject to dismissal. She cannot state an ADEA claim against

93 || the Individual Defendants as a matter of law because “the ADEA does not allow for suit against

individuals[.]” Stilwell v. City of Williams, 831 F.3d 1234, 1245 (9th Cir. 2016). And as

24 discussed in Section II.A, the OUSD and the OUSD Board, which are the only other potential

defendants, are shielded from her claims by sovereign immunity. See id. (State employers cannot

25 be sued by state employees under the ADEA because Congress did not abrogate the States’

sovereign immunity to suits by private individuals) (citing Kimel v. Fla. Bd. of Regents, 528 U.S.

26 62, 91, 120 S. Ct. 631, 649 (2000)). In short, “state employees, in practice, cannot sue under the

ADEA.” Id. The Court therefore denies Plaintiffs’ request. See Steckman v. Hart Brewing, Inc.,

07 143 F.3d 1293, 1298 (9th Cir. 1998) (“Although there is a general rule that parties are allowed to

amend their pleadings, it does not extend to cases in which any amendment would be an exercise

28 in futility, or where the amended complaint would also be subject to dismissal.”) (citations

omitted).