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

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

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

8 Plaintiffs,

ORDER DENYING MOTION FOR

9 v. RECONSIDERATION ON SUMMARY

JUDGMENT AND DENYING MOTION

10 BOARD OF TRUSTEES OF THE SAN FOR JUDGMENT ON THE

MATEO COUNTY COMMUNITY PLEADINGS

11 COLLEGE DISTRICT, et al.,

12 Defendants. Docket No. 143, 144

13

14 I. INTRODUCTION

15 This case involves a community college employee who sued the district for First

16 Amendment retaliation. The instant motion follows the Court’s ruling on summary judgment.

17 Plaintiff Violeta Grigorescu (“Ms. Grigorescu”) was a former lab technician and adjunct professor

18 at the College of San Mateo and the San Mateo Community College District (“District”). Ms.

19 Grigorescu was involved in an environmental organizing group and litigation against the District

20 that opposed the demolition of a campus garden to construct an additional parking lot (“Friends

21 litigation”). As the litigation was ongoing, the District and Ms. Grigorescu had a series of

22 employment disputes involving degree qualifications for teaching and abuse of leave privileges.

23 Defendant Eugene Whitlock (“Mr. Whitlock”) was the Vice Chancellor for Human Resources for

24 the District and General Counsel during the time many of these disputes took place. Ultimately

25 the District and Mr. Whitlock terminated Ms. Grigorescu for her work absences. Plaintiff claims

26 these actions were part of a retaliatory scheme against her because of her activism to preserve the

27 garden.

1 moves for (1) reconsideration of three issues: qualified immunity, preclusion, and disability

2 accommodations, and (2) judgment on the pleadings based on divestiture of jurisdiction pending

3 appeal and statute of limitations for Section 1983 claims.

4 II. FACTS AND BACKGROUND

5 A. Factual Background

6 The facts are incorporated from the Court’s Order on Motion for Summary Judgment as

7 follows. See Docket No. 136.

8 1. Speech Activity

9 In 2004, Ms. Grigorescu was employed by the District as a laboratory technician at the

10 College of San Mateo (“CSM”). Docket No. 124 ¶ 20 (Grigorescu Decl.). In 2008, she became a

11 part-time, adjunct physics instructor at CSM. Id. at ¶ 28.

12 Throughout 2011, Ms. Grigorescu participated in an environmental organizing group

13 called “Friends of CSM Gardens” (“Friends”) to oppose the conversion of a campus garden into a

14 parking lot. She spoke daily about what her group was doing to oppose the destruction of the

15 gardens with Charlene Frontiera, the Dean of Math and Science (“Dean Frontiera”). Id. at ¶ 41.

16 Ms. Grigorescu created a PowerPoint, was a main organizer of a teach-in, gave updates at a union

17 meeting, and sent emails and individually communicated with campus members regarding garden

18 demolition opposition. Id. at ¶¶ 67-70. She and other leaders of Friends met with CSM President

19 Mike Claire (“President Claire”) to discuss concerns about the plan to build a parking lot. Id. at ¶

20 47. She made comments at a District Board of Trustees (“Board”) meeting and submitted a letter

21 to the Board expressing her appreciation of the gardens and nature. Docket No. 100-2 at PDF 604

22 (Morrison Decl.).

23 In April 2011, Friends filed a lawsuit against the District opposing garden demolition. Id.

24 at ¶ 65-66. In 2016, the California Supreme Court ultimately heard the case in Friends of College

25 of San Mateo Gardens v. San Mateo County Community College District, 1 Cal.5th 937 (2016)

26 (“Friends”). Ms. Grigorescu was also involved in a group called “Citizens for a Green San

27 Mateo” that sued the District for the destruction of trees on campus in connection with multiple

1 College District, 226 Cal. App. 4th 1572 (Cal. Ct. App. 2014) (“Citizens”).

2 During this time, Mr. Whitlock was a deputy attorney at the San Mateo County Counsel

3 and acted as General Counsel for various school districts and agencies in San Mateo County.

4 Docket No. 101 ¶ 3 (Whitlock Decl.). He was assigned to both Friends and Citizens. He

5 identified a firm with CEQA expertise to litigate the case, reviewed occasional pleadings, and

6 observed some court hearings. Id. at ¶ 4. Mr. Whitlock was not an attorney of record in the initial

7 Friends lawsuit in 2011, though he was an attorney of record in the California Supreme Court case

8 Friends and in the second case Citizens. In July of 2014, Mr. Whitlock became the Vice

9 Chancellor of Human Resources (VCHR) at the District. Grigorescu Decl. ¶ 90-91.

10 a. Grigorescu I First Termination Attempt

11 On March 18, 2015, Ms. Grigorescu applied for a full-time physics teaching position at

12 CSM. Id. at ¶ 97. Mr. Whitlock then informed Ms. Grigorescu that after a “routine check” he

13 found that she did not have the qualifications for the position, and that her claim of a master’s

14 degree from the University of Bucharest contradicted the district’s records. Id. at ¶ 98. State

15 regulation requires that applicants for college teaching positions have a Master’s degree, or apply

16 for Equivalency. Docket No. 100-2 at 96 (Grigorescu Responses to Interrogatories ¶15).

17 Equivalency requires 24 credits of graduate level coursework and is equivalent to possessing a

18 master’s degree. Docket No. 100-2 at 51 (Grigorescu Responses to Interrogatories at 4). In 1986,

19 Ms. Grigorescu graduated with a “Diploma de Licentia” from the University of Bucharest after

20 three years of study of physics and mathematics and an additional year of specialty coursework

21 within physics. Grigorescu Decl. ¶ 8. There is a dispute about whether she has the equivalent of a

22 master’s degree in the U.S. as she represented.

23 Mr. Whitlock hired an independent firm to conduct an equivalency evaluation for Ms.

24 Grigorescu. Docket No. 100-2 at 1726-27 (Whitlock Deposition 200:24-25 to 201:1-6). The firm

25 determined she had only a bachelor’s degree. Id. Mr. Whitlock also called each of Ms.

26 Grigorescu’s degree-granting institutions to verify the degree equivalency. Id. at 201:24-25.

27 There is also a dispute about whether those institutions confirmed or denied her degree

1 Education at the University of Bucharest that attested that a “Diploma de Licenta” was equivalent

2 to a master’s degree in physics. Docket No. 100-2 at 1745 (Whitlock Deposition Part II at 219).

3 Mr. Whitlock contests that the document was from an unknown organization which was not

4 associated with the university where Ms. Grigorescu received her degree. Docket No. 100-2 at

5 1746 (Whitlock Deposition Part II at 220).

6 Mr. Whitlock then required her to submit a form to apply for equivalency to be a candidate

7 for the position. Grigorescu Decl. ¶ 103. She then submitted a form. She interviewed but

8 ultimately was not chosen for the position. Id. at ¶ 116.

9 Also at this time in April 2015, the District banned Ms. Grigorescu from both her lab tech

10 and teaching positions on the basis of a flaring up of chronic pain as a result of excessive stress

11 from obtaining equivalency statements. Id. at ¶ 110. Ms. Grigorescu was instructed to take a

12 leave of absence from both positions “based on my alleged inability to bend to unlock a cabinet.”

13 Id. at ¶ 111-12; Frontiera Deposition 161:19. As a result of a meeting with Ms. Grigorescu’s

14 union representatives, Dean Frontiera allowed Ms. Grigorescu to conduct only the lecture portion

15 of the physics class. Grigorescu Decl. ¶ 112.

16 On Thursday, May 28, 2015, Mr. Whitlock held a pre-disciplinary meeting regarding her

17 equivalency. Docket No. 100-2 ¶ 81 (Grigorescu Supplemental Amended Responses to Whitlock

18 Interrogatories) (“Grigorescu Responses”). On June 9, Mr. Whitlock served Ms. Grigorescu an

19 official notice of termination and suspension without pay, charging her with misrepresentation of

20 credentials and a pattern of lying about her degrees. Id. at ¶ 85.

21 On June 17, 2015, a Skelly hearing took place before President of CSM Mike Claire

22 (“President Claire”). Grigorescu Decl. ¶ 124. A Skelly hearing is a pre-disciplinary procedure that

23 allows public employees to challenge proposed disciplinary actions by their employer before those

24 actions are finalized. See Skelly v. State Personnel Board, 15 Cal.3d 194, 194 (1975). It ensures

25 that the employee has due process rights. Ms. Grigorescu and Mr. Whitlock were present. Id.

26 The record does not reflect the precise issues raised in the hearing. At the end of the hearing,

27 President Claire upheld Mr. Whitlock’s recommendation for termination. Id.

1 hearing was held before the Board of Trustees with presiding officer Kathy Meola. Whitlock

2 Decl. ¶ 8. Meola was a Chief Deputy at San Mateo County Counsel. Docket No. 101-1 at 244.

3 Crucially, between the first and second days of the hearing, the District submitted a new letter it

4 received from the University of Bucharest confirming that Ms. Grigorescu’s bachelor’s diploma

5 was equivalent to a master’s diploma. Id. at 252.

6 On August 6, 2015, Meola ruled that the District did not meet its burden of proof to show

7 that Ms. Grigorescu was dishonest in stating that her degree was equivalent to a master’s degree.

8 Docket No. 101-1 at 249 (Whitlock Decl. Exh. 30). Meola determined the following findings of

9 fact:

3. Appellant acknowledged that while she did not receive two

10 separate degrees from the University of Bucharest, she possessed

one degree, which was equivalent to a bachelor’s degree and a

11 master’s degree from the University of Bucharest, and Appellant

attempted to show that equivalency on her resume by breaking the

12 equivalency into two degrees.

13 Id. at 246. Further:

14 9. …In review of the evidence presented by both sides, it would

have been more accurate for Appellant to list one degree on her

15 resume and explain that her degree was equivalent to a bachelor’s

degree and a master’s degree, but the evidence simply does not exist

16 to show that Appellant lied or was dishonest in her representation

that she had both a bachelor’s degree and a master’s degree from the

17 University of Bucharest. Id. at 248.

18 Meola also found that Ms. Grigorescu misrepresented that she had a minor in mathematics,

19 because “Appellant admitted that she has no testimonial evidence to support her claim.” Id. at

20 248. Further, Meola found that Ms. Grigorescu misrepresented that her Diploma de Baccalaureate

21 was a bachelor’s degree, as it was in fact her high-school diploma. Id. Meola rejected

22 termination, but recommended discipline. Id. The Board accepted her recommendations and

23 allowed Ms. Grigorescu to return to classified lab tech position. Id. at 253-54. She also received a

24 two-and-a-half month unpaid suspension. Docket No. 101-2 at 489.

25 b. Grigorescu II Second Termination Attempt and Successful Termination

26 In 2016, Mr. Whitlock made a final and ultimately successful attempt to terminate Ms.

27 Grigorescu, resulting in Grigorescu II.

1 vacation days. Grigorescu Decl. ¶¶ 137-39. It is disputed that those requests were not submitted

2 in a timely manner as required under her union contract. Id.

3 Next, Ms. Grigorescu then requested a four-day per week lab tech schedule so she could

4 teach at San Francisco State University on Fridays. Id. at ¶¶ 142-48. Dean Frontiera denied the

5 request. Id. at ¶ 148. Dean Frontiera also denied a second request. Id. at ¶ 153. Ms. Grigorescu

6 asserts that Dean Frontiera was “under orders” from Mr. Whitlock. Docket No. 100-2 at 127

7 (Grigorescu Responses to Interrogatories ¶134).

8 Finally, a second series of disputes over Ms. Grigorescu’s leave privilege ensued. On

9 Friday February 5, 2016, Ms. Grigorescu requested and was approved 5.5 hours of “sick time” for

10 the same day, and used that time to teach at SFSU. Grigorescu Decl. ¶ 156. She then logged her

11 leave as “personal necessity” time, which unlike “sick time,” could be used at any time for any

12 reason. See id. Two weeks later on Friday, February 19, Ms. Grigorescu notified Dean Frontiera

13 she was using four hours of “personal necessity” time that same morning and would return to

14 work in the afternoon. Id. at ¶ 159. Around noon, Dean Frontiera sent her a letter of suspension

15 for missing work without permission. Id. It is disputed that Ms. Grigorescu’s leave required

16 permission. Id. at 159.

17 In March, Mr. Whitlock issued a notice of suspension and termination for “misrepresenting

18 her physical condition and abuse of leave privileges.” Id. at ¶ 164. He stated she was absent from

19 work without permission on six dates between January and March of 2016. Id. Again, a Skelly

20 hearing was held before President Claire. Id. at ¶ 166. Again, President Claire supported the

21 proposed termination, finding “there are reasonable grounds for believing that Ms. Grigorescu

22 engaged in the alleged misconduct.” Docket No. 101-2 at 76. And again, Ms. Grigorescu

23 appealed President Claire’s decision. Grigorescu Decl. ¶ 166.

24 On June 17 and July 21, 2016, her second termination appeal hearing (Grigorescu II) was

25 held before the Board of Trustees. Whitlock Decl. ¶ 9. The presiding officer was Gina M.

26 Roccanova, an attorney from an outside third party firm, Meyers Nave. Docket No. 101-2 at 475.

27 In this hearing, Ms. Grigorescu alleged that Mr. Whitlock retaliated against her for

1 included protesting the elimination of a garden at the College. Id. at 1069-1070. She also asserted

2 several other protected activities, including filing a workers’ compensation claim and making a

3 request for medical leave. Id. at 1069. She alleged that the district repeatedly retaliated against

4 her in numerous ways, including by refusing to accommodate medical restrictions, proposing her

5 termination that led to Grigorescu I, and that the second termination attempt that led to

6 Grigorescu II was the “latest in this string of actions.” Id. at 491 (Transcript of Proceedings). The

7 string of actions included other retaliatory acts, including the District’s denial of her request for a

8 flexible schedule, Id. at 491-2, and a refusal to allow her to attend regular meetings of a campus

9 committee. Id. at 1048 (CSEA Post-Hearing Closing Brief).

10 Ms. Roccanova found that while at least one of the activities was sufficiently close in time

11 to her proposed dismissal to raise an initial inference of causation, “the strength of the District’s

12 evidence of her wrongdoing is sufficient to overcome any such inference.” Docket No. 101-2 at

13 1069-1070. Ms. Roccanova recommended termination, writing:

14

The District proved that Ms. Grigorescu improperly took paid leave

15 from the District to work a second job with conflicting hours. Her

intentional disregard for the work schedule set for her by the District

16 constitutes insubordination. Ms. Grigorescu also abused her leave

privileges, was absent from work without authorization, and

17 improperly took leave from her District position to work at another

job. Most egregiously, she was intentionally deceptive about her

18 reasons for taking time off. Given her recent lengthy suspension for

dishonesty, termination is appropriate.

19

Id. at 1061. In December 2016, the Board of Trustees adopted the recommendation and

20

terminated Ms. Grigorescu. Whitlock Decl. ¶ 9.

21

c. Other “Harassment Actions”

22

Starting from when Mr. Whitlock assumed the VCHR position in July 2014, Ms.

23

Grigorescu asserts she experienced numerous other retaliatory acts, herein “Harassment Actions,”

24

as follows:

25

In September 2014, Ms. Grigorescu was not permitted to participate in a mentorship

26

program for African American students because she was white. Grigorescu Decl. ¶ 90-91. Mr.

27

Whitlock contests that she could participate during non-work hours, such as her lunch break. Mot.

1 at 20; Docket No. 100-2 at 736 (Grigorescu Deposition 256:25 to 257:1-13).

2 That same month, Ms. Grigorescu raised the issue of a history of discrimination against her

3 by the District in a meeting with Dean Frontiera and a union representative. Ms. Grigorescu’s

4 meeting record states the following: “Charlene said if we’re talking about discrimination, then the

5 meeting had to end right there and be continued in the presence of Eugene Whitlock.” Docket No.

6 100-2 at 872. Ms. Grigorescu asserts that Frontiera was directed by Mr. Whitlock “to proceed as

7 she did.” Grigorescu Decl. at ¶ 93. Mr. Whitlock contests that Dean Frontiera was not acting

8 under Mr. Whitlock’s direction, and the meeting record does not show otherwise. Mot. at 22;

9 Docket No. 100-2 at 870 (Morrison Decl. Ex. 7, 390:3-23).1 There is no evidence nor allegations

10 that up until that 2014 meeting, Mr. Whitlock engaged in discrimination on his own.

11 Around the same time, Dean Frontiera banned Ms. Grigorescu from substituting for full

12 time professors. Grigorescu Decl. at ¶ 94. Dean Frontiera also filed an incorrect teaching

13 evaluation. Id. at ¶ 96.

14 Next, in 2015, Mr. Whitlock failed to provide workplace disability accommodations and

15 required her to take a leave of absence after experiencing physical health issues. Grigorescu Decl.

16 at ¶ 110-11. According to Ms. Grigorescu, she requested accommodations from him directly in a

17 face-to-face meeting. Morrison Decl. at 811. Mr. Whitlock contends that he was not involved

18 with nor did he know about workplace accommodation requests because they were handled by the

19 workers compensation employee, Ingrid Melgoza. Mot. at 21; Morrison Decl. at 811-12.

20 In 2016, Ms. Grigorescu states that “Whitlock shouted I was a bad employee, who only

21 causes problems, and that he wanted to never hear my name again.” Grigorescu Decl. at ¶ 142.

22 She also was not given teaching assignments throughout the year. Id. at ¶ ¶146, 169. Lastly, Mr.

23 Whitlock and Dean Frontiera denied her request for a four-day a week schedule, which in part led

24

1 “So I may have not included those particular words in my account… they may not have

25

been uttered in this particular format, but that was the sentiment that transpired via body language,

via half-word sentences, half sentences uttered that Charlene … said “I’ve done what I’ve been

26

told to do,” or “I’m taking my orders from HR.” And perhaps somebody said, “Who’s HR?” And

she might have said, “vice chancellor.”

27

I did not record the meeting. I wish I did. .. so I paraphrased after the meeting, to the best

1 to Grigorescu II and her final termination. Id. at ¶ 148.

2 B. Procedural Background

3 1. Prior State Court Proceeding

4 Relevant to the instant motion is the fact that on March 14, 2016, Plaintiff filed a Writ of

5 Mandate in California Superior Court against Defendant and sought to reinstate her position with

6 the District. Docket No. 152-1 at PDF 5-9 (Exhibit A, Initial Petition for Writ of Mandate).

7 There, she sought relief for the same conduct that forms the bases for her remaining First

8 Amendment retaliation claim. Id. Note that the facts in the state court complaint also form the

9 bases of her federal court complaint. See id. at 59 (State Court Complaint and Writ of Mandate);

10 Docket No. 39 (TAC).

11 On June 27, 2018, the Superior Court denied Plaintiff’s writ of mandate. Id. at 51-52

12 (Exhibit C, Notice of Ruling Denying Writ of Mandate). Neither party attended the hearing, and

13 the court ruled on the writ of mandate:

14 DENIED. Despite a Court-approved briefing schedule, the

administrative record has not been lodged and no points and

15 authorities or moving papers have been filed supporting the

application for writ.

16

Id. at 54 (Petition for Writ of Mandate Minute Order). Three months later, on September 27,

17

2018, Plaintiff filed her initial complaint in federal court (Docket No. 1).

18

2. Summary Judgment

19

Defendant moved for summary judgment. This Court held that Plaintiff was precluded

20

from asserting the second termination attempt, Grigorescu II, as a basis for her First Amendment

21

retaliation claim. Docket No. 136 at 17-21 (Order on MSJ). The Court held that Grigorescu I was

22

an adverse action that was not precluded and can be relied on to form a basis for her retaliation

23

claim. The Court also held there was a genuine dispute of fact as to whether the other alleged

24

retaliatory acts, the “Harassment Actions,” constituted adverse actions. Order on MSJ at 21-25.

25

The Court did not rule on Defendant’s claim of qualified immunity. Id. at 25.

26

27

1 III. MOTION FOR RECONSIDERATION

2 A. Legal Standard

3 In the Ninth Circuit, a party may appropriately bring a motion for reconsideration of

4 summary judgment under either Federal Rules of Civil Procedure Rule 59(e) or 60(b), even

5 though Rule 60(b) governs only final judgments, orders, or proceedings. See Fuller v. M.G.

6 Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991); Fed. R. Civ. Pro. 60(b). A motion for

7 reconsideration is treated as a motion under Federal Rule of Civil Procedure 59(e) if it is filed

8 within 28 days of the judgment, and as a motion under Federal Rule of Civil Procedure 60(b)

9 otherwise. Fed. R. Civ. Pro. 59(e), 60(b); Am. Ironworks & Erectors, Inc. v. N. Am. Constr.

10 Corp., 248 F.3d 892, 898-99 (9th Cir. 2001).

11 Additionally, the local rules of this Court impose additional requirements on motions for

12 reconsideration. Motions for reconsideration under Local Rule 7-9 are appropriate only under

13 three circumstances:

14 (1) “a material difference in fact or law exists from that which was

presented to the Court before entry of the interlocutory order for

15 which reconsideration is sought;” (2) “the emergence of new material

facts or a change of law occurring after the time of such order;” or (3)

16 “a manifest failure by the Court to consider material facts or

dispositive legal arguments which were presented to the Court before

17 such interlocutory order.”

18 Civ. Loc. R. 7-9(b)(1)–(3).

19 B. Discussion

20 This Court granted Defendants leave to file a motion for reconsideration as to matters they

21 believe were not addressed in the Court’s Order Granting in Part and Denying in Part Defendant’s

22 Motion for Summary Judgment. Docket No. 148 (Minute Entry). Defendant now moves to

23 reconsider the following: (1) the Court should grant summary judgment to Defendant on qualified

24 immunity, (2) the Court should have found that Grigorescu I has preclusive effect, and (3) the

25 Court should not allow Defendant’s failure to provide disability accommodations to make up part

26 of the “Harassment Actions” that constitute an adverse action.

27 As an initial matter, Plaintiff argues that Defendant’s motion for reconsideration fails to

1 to file a motion for reconsideration on substantive legal issues and thus compliance with the local

2 rules is implied; in particular, Defendant’s motion is appropriate under Civ. Loc. R. 7-9(b)(3) (“a

3 manifest failure by the Court to consider … dispositive legal arguments which were presented to

4 the Court before such interlocutory order.”).

5 1. Qualified Immunity

6 a. Rule 60(b)

7 Plaintiff argues that the Defendant cannot file this motion for reconsideration because Rule

8 60(b) only applies to final judgments, and not interlocutory rulings. Mateo v. M/S KISO, 805 F.

9 Supp. 761, 786 (N.D. Cal. 1991). It is generally true that Rules 59(e) and 60(b) do not govern

10 reconsideration of a denial of summary judgment, which normally is an interlocutory ruling. See

11 e.g., Portugues-Santa v. B. Fernandez Hermanos, Inc., 614 F. Supp. 2d 221 (D.P.R. 2009)

12 (holding that where former employee alleged race discrimination and employer’s summary

13 judgment motion was denied, Fed. R. Civ. P. 59(e) and 60(b) did not apply to employer’s motion

14 for reconsideration, because both rules applied only to final judgments and denial of summary

15 judgment motion did not dispose of employee’s claims).

16 However, an exception exists if a court denies summary judgment on the issue of

17 qualified immunity. “When the defendants are public officials asserting a qualified immunity

18 defense and the appealed issue is whether a given set of facts establishes that defendants violated

19 clearly established law,” the order denying summary judgment is final and the appellate court has

20 jurisdiction under 28 U.S.C. § 1291. Bass v. Richards, 308 F.3d at 1086 (10th Cir.

21 2002); see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A] district court’s denial of a claim of

22 qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’

23 within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”) Here,

24 the Court’s denial of qualified immunity arguably concerns an issue of law. Therefore, unless the

25 Ninth Circuit were to find otherwise, the order denying summary judgment on qualified immunity

26 is final for purposes of Rule 60(b).

27 b. Rule 62.1(a)

1 divested of jurisdiction for the motion for reconsideration. See Katzir’s Floor & Home Design,

2 Inc. v. M-MLS.com, 394 F.3d 1143, 1148 (9th Cir. 2004). However, if a timely motion is made for

3 relief that the district court lacks authority to grant because of an appeal that has been docketed

4 and is pending, the district court may:

5 • Defer consideration of the motion;

• Deny the motion; or

6 • State either that it would grant the motion if the court of

appeals remands for that purpose, or that the motion raises a

7 substantial issue.

8 Fed. R. Civ. Pro. 62.1(a). The district court’s suggestion for remand if it inclined to grant the

9 motion is known as an “indicative ruling.” Id. (Committee Note to the Original Rule). However,

10 no remand or permission of the court of appeals is necessary for the district court to deny the

11 motion. Fed. R. Civ. P. 62.1(a)(1), (b); Fed. R. App. P. 12.1(a) (notice to court of appeals is

12 required only if district court states that it would grant motion or that motion raises substantial

13 issue).

14 Here, Defendant filed a notice of appeal prior to filing their motion for reconsideration.

15 Therefore, Plaintiff is correct that the Court is divested of jurisdiction for the motion for

16 reconsideration; however, Rule 62.1(a) applies. For the reasons stated below, the Court denies the

17 motion for reconsideration of summary judgment on qualified immunity. Therefore, the Court has

18 jurisdiction to issue a direct, rather than indicative, ruling.

19 c. Merits of Qualified Immunity Defense

20 Defendant makes two arguments to assert that he is entitled to qualified immunity. First,

21 his conduct was not barred by “clearly established” law at the time. Motion for Reconsideration at

22 9. Second, he reasonably believed his conduct was lawful. Id.

23 “[T]o overcome qualified immunity, Plaintiffs must show that [defendants] (1) ‘violated a

24 federal statutory or constitutional right’ and (2) ‘the unlawfulness of their conduct was clearly

25 established at the time.’” Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022). “A Government

26 official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘the

27 contours of a right are sufficiently clear’ that every ‘reasonable official would have understood

1 i. Clearly established law

2 It is clearly established that Ms. Grigorescu, as a public employee, cannot be retaliated

3 against for exercising her First Amendment rights. Public school employees have a clearly

4 established First Amendment right to free speech, such as making statements at a public meeting

5 on matters of public concern, and expression of political views. In Dodge v. Evergreen School

6 District #114, 56 F.4th 767 (9th Cir. 2022), a teacher alleged retaliation in violation of the First

7 Amendment when a school principal told the teacher to not bring his Make America Great Again

8 hat to teacher only trainings, and threatened the teacher with disciplinary action. Id. at 772. The

9 Ninth Circuit denied the principal qualified immunity, stating that the plaintiff’s “right to express

10 political views, even as a public school teacher, is clearly established. That controversial political

11 speech cannot be quelled because others may find the speech objectionable is clearly established.”

12 Id. at 787.; see also Anderson v. Central Point School Dist. No. 6., 746 F.2d 505, 508 (9th Cir.

13 1984) (finding it was “clearly established” in March 1981 that teachers cannot be disciplined for

14 exercising their first amendment rights); Lewis v. Harrison School Dist. No. 1, 805 F.2d 310 (8th

15 Cir. 1986) (finding that school officials who fired a school employee for his statements at a public

16 meeting were not protected by qualified immunity because the legal principle that school

17 employees have rights to free speech was clearly established).

18 Similarly, here, Ms. Grigorescu has a clearly established right as a public school district

19 employee to express her views against the demolition of a garden on school grounds. This right

20 for public employees to exercise their First Amendment rights has been clearly established for

21 decades. Defendant does not point to any nuance in the First Amendment principles that

22 complicates the legal analysis here. He does not contend, for instance, that the subject matter of

23 Mr. Grigorescu was not within the ambit of her First Amendment right. Therefore, Defendant

24 cannot properly argue that retaliation against protected expression is not barred by clearly

25 established law. To the extent Defendant’s motion for reconsideration of qualified immunity is

26 based on this ground, it is denied.

27 ii. Violation of a Constitutional Right

1 believed his conduct was lawful. Motion at 9. Ms. Grigorescu contests that he acted in retaliation

2 for her protected speech, and therefore a factual dispute on this matter precludes qualified

3 immunity. See Opposition at 2.

4 Courts have found that although the qualified immunity test is generally characterized as

5 objective, where the defendant’s state of mind is an element of the underlying constitutional claim,

6 it must be considered in the qualified immunity analysis. See e.g. Poe v. Haydon, 853 F.2d 418,

7 431 (6th Cir. 1988) (“[W]e agree with those circuits that have recognized that a government

8 official’s motive or intent must be considered in the qualified immunity analysis, where unlawful

9 motive or intent is a critical element of the substantive claim.”); Ratliff v. DeKalb County, Ga., 62

10 F.3d 338, 341 (11th Cir. 1995) (“in qualified immunity cases, intent is a relevant inquiry if

11 discriminatory intent is a specific element of the constitutional tort.” (emphasis in

12 original)); Elliott v. Thomas, 937 F.2d 338 (7th Cir. 1991) (requiring that the plaintiff produce

13 specific, nonconclusory factual allegations establishing the required mental state in cases where

14 intent is one of the substantive elements of the constitutional claim); Grant v. City of Pittsburgh,

15 98 F.3d 116, 124 (3d Cir. 1996) ( “courts are not barred from examining evidence of a defendant’s

16 state of mind in considering whether the plaintiff has adduced sufficient evidence to withstand

17 summary judgment on the issue of qualified immunity, where such state of mind is an essential

18 element of the constitutional violation itself.”). If there are disputed issues of fact as to the

19 requisite intent, the court may deny a motion for summary judgement based on qualified

20 immunity.

21 In Lindsey v. Shalmy, 29 F.3d 1382, 1383-84 (9th Cir. 1994), the plaintiff sued a former

22 supervisor for gender discrimination, and the supervisor argued he was entitled to qualified

23 immunity. The Ninth Circuit held that “It is clear, therefore, that some account must be taken of

24 [the supervisor’s] subjective intent in determining whether he is entitled to immunity.” Id. at

25 1384. It explained:

26 [Defendant] would consequently remove from the inquiry all

reference to his subjective state of mind or his motivation…The

27 problem with this formulation, of course, is that it is nonsensical in

If that element is left out of the test, then the official will always be

1 immune in cases of alleged invidious discrimination. See Martin v.

District of Columbia Metro. Police Dep’t, 259 U.S. App. D.C. 31,

2 812 F.2d 1425, 1433 (D.C. Cir. 1987). Invariable immunity is not an

acceptable result. See id.

3

Id. If “there is sufficient ‘direct or circumstantial evidence’ of intent…to create a genuine issue of

4

fact for the jury,” the court can deny summary judgment on the ground of immunity. Id. at 1385

5

(citation omitted). The court found significant evidence showing the supervisor’s discriminatory

6

motives, including past statements against women in the workplace and specific testimonies of

7

disrespect and hostility towards female employees. Id. Therefore, there was sufficient direct or

8

circumstantial evidence of discriminatory intent to defeat qualified immunity and thus denied

9

summary judgement and allowed the matter to go to trial. Id.2 See Sheppard v. Beerman, 94 F.3d

10

823, 828 (2d Cir. 1996) (holding that if a plaintiff proffers particularized evidence of direct or

11

circumstantial facts supporting the claim of an improper motive, it may avoid summary judgment

12

based on qualified immunity, but granting summary judgment to the judge defendant because

13

there was no evidence of retaliatory intent against his law clerk). In other words, where an

14

unlawful intent is an essential element of the constitutional claim, there is, in effect, no

15

independent qualified immunity defense that applies relative to that element.

16

Accordingly, the Court must consider Mr. Whitlock’s state of mind when he allegedly

17

undertook adverse actions against Ms. Grigorescu because it is an essential element of the First

18

Amendment retaliation claim. See Coszalter v. City of Salem, 320 F.3d 968, 970 (9th Cir. 2203)

19

(requiring that the plaintiff show retaliation was a “substantial or motivating factor” behind a

20

defendant’s adverse employment actions). Thus, if Ms. Grigorescu proffers sufficient evidence of

21

direct or circumstantial facts which would establish a retaliatory motive, an essential element of

22

her First Amendment claim, the Court must deny summary judgment based on qualified

23

24

2 In Gutierrez v. Municipal Court of Southeast Judicial Dist., Los Angeles County, 838 F.2d 1031

(9th Cir. 1988), the Ninth Circuit held that “[W]here unlawful intent or motive is an essential

25

element of the challenged conduct, the act cannot be analyzed apart from the actor’s intent and the

court must consider that intent in determining whether the defense of qualified immunity is

26

available.” Id. at 1050. The case was vacated and remanded to dismiss the appeal as moot.

Gutierrez v. Municipal Court of Southeast Judicial Dist., Los Angeles County, 490 U.S. 1016

27

(1989). Nonetheless, Gutierrez is still frequently cited for its holding. See, e.g., Cole v. Doe 1

1 immunity. See Lindsey, 29 F.3d at 1385; Sheppard, 94 F.3d at 828.

2 Here, weighing the evidence in the light most favorable to Ms. Grigorescu, she has raised a

3 genuine dispute of fact as to whether Mr. Whitlock conducted Grigorescu I and the “Harassment

4 Actions” with a retaliatory motive. This Court so concluded in its previous order denying

5 summary judgment. Order on MSJ at 21. First, there is an inference that Mr. Whitlock knew of

6 Ms. Grigorescu’s garden activism because of her leadership and public speech about the gardens,

7 as well as her participation in the Friends litigation. See Order on MSJ at 21-22. Second, there is

8 circumstantial evidence of causation because of the reasonable proximity in time between her

9 activism and the “Harassment Actions,” as well as the fact that Mr. Whitlock opposed her activism

10 given his role as opposing counsel in the Friends litigation. Id. at 22-24. Unlike the clear

11 evidence that showed the judge had no retaliatory intent in Sheppard, here the evidence shows a

12 genuine dispute of fact of retaliatory intent.

13 Therefore, the Court denies summary judgment on qualified immunity as to both

14 Grigorescu I and the Harassment Actions. Cf. Burgess v. Pierce County, 918 F.2d 104 (9th Cir.

15 1990) (qualified immunity on summary judgment grounds was inappropriate where there was a

16 factual issue as to whether termination would have taken place regardless of constitutionally

17 protected speech).

18 2. Preclusion

19 Apart from the assertion of qualified immunity, Defendant seeks reconsideration on

20 another basis for summary judgment—that Grigorescu I was litigated to a final judgment and

21 therefore, like Grigorescu II, should have preclusive effect.3 Motion for Reconsideration at 9 n.1.

22 For the reasons stated below, the Court denies this basis for reconsideration as well.

23 a. Rule 54(b)

24 Under Rule 54(b), a court can review an interlocutory judgment at any time. Fed. R. Civ.

25 P. 54(b). The Court’s ruling on this issue remains interlocutory because unlike the denial of the

26 motion for summary judgment on qualified immunity, the Court did not render a final judgment.

27

1 Thus, Rule 54(b), and not Rule 60(b) applies.4

2 b. Utah Construction Requirements

3 An unreviewed state administrative decision may have preclusive effect in federal court as

4 a matter of federal common law, as long as they meet the fairness requirements described in

5 United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966). Miller v. Cnty. of Santa Cruz,

6 39 F.3d 1030, 1032 (9th Cir. 1994). It is fair to give preclusive effect to an administrative

7 decision if (1) the administrative agency acted in a judicial capacity; (2) the agency “resolv[ed]

8 disputed issues of fact properly before it;” and (3) “the parties . . . had an adequate opportunity to

9 litigate.” Utah Constr., 384 U.S. at 422.

10 Wilson v. Oakland Unified Sch. Dist., 2024 U.S. Dist. LEXIS 43767 (N.D. Cal. 2024)

11 illustrates the application of the Utah Construction requirements. There, a former school district

12 employee sued the district for first amendment retaliation, among other things, after he was

13 terminated for allegedly having inappropriate physical contact with one of the female students. Id.

14 at *3. The district held a Skelly hearing and upheld his termination. Id. This Court held that the

15 Skelly hearing satisfied the Utah Construction factors and therefore the parties were bound by

16 collateral estoppel and res judicata to the results of the “issues litigated.” Id. at *27. As to the first

17 factor, the Court reviewed the record of the hearing and found it “clear” that the hearing officer

18 acted “in a judicial capacity.” Id. at *23. The plaintiff also had adequate notice of the hearing and

19 a clear opportunity to prepare oral statements and examinations, and the officer applied the facts to

20 the rule so as to make the proceeding “adjudicatory in nature.” Id. at *24. Second, the hearing

21 officer resolved disputed issues of fact given the hearing record and the officer’s written statement

22 of reasons. Id. Third, the fact the plaintiff’s two union representatives were present and advocated

23 on his behalf at the hearing strongly supported a finding that parties had an adequate opportunity

24 to litigate. Id. at *26.

25 Here, the Utah Construction factors are similarly met. First, the hearing officer Meola

26

27

4 Even if the denial of preclusion was deemed a final judgment since it was affected by the denial

1 acted in a judicial capacity. While she acknowledged her relationship to the District as Chief

2 Deputy at San Mateo County Counsel, parties consented to her as the hearing officer, and the

3 record shows that she was played a neutral role in the hearing. See Docket No. 101-1 at PDF 196-

4 7. In fact, she disagreed with the District’s view that Ms. Grigorescu intentionally misrepresented

5 her credentials, and rejected the District’s proposal of termination. As in Wilson, she applied the

6 rule to the facts, the hallmark of an “adjudicatory” proceeding. Meola resolved disputed issues of

7 fact and wrote a final recommendation. Third, Ms. Grigorescu was given adequate notice of the

8 hearing and opportunity to prepare statements and examinations of witnesses. Fourth, Ms.

9 Grigorescu’s union representative advocated for her at the hearing which demonstrates that the

10 parties had an adequate opportunity to litigate. Therefore, Grigorescu I had sufficient indicia of

11 fairness in order to have preclusive effect.

12 c. Preclusive effect

13 If an administrative proceeding is sufficiently judicial in character under Utah

14 Construction, federal courts turn to the state’s rules of preclusion to define the preclusive effect of

15 the administrative decision. White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). There

16 are two types of preclusion: claim preclusion and issue preclusion.

17 i. Res Judicata

18 Claim preclusion, or res judicata, dictates that “a final judgment forecloses successive

19 litigation of the very same claim, whether or not relitigation of the claim raises the same issues as

20 the earlier suit.” White, 671 F.3d at 926 (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)).

21 Usually, res judicata or collateral estoppel is asserted by the party who prevailed in the first action

22 to preclude or limit the second action. Here, however, Ms. Grigorescu ultimately prevailed in

23 Grigorescu I when Meola found she had the equivalent to a master’s degree and did not misrepresent

24 her credentials. Although Defendant asserts res judicata, what is involved here is the branch of

25 claim preclusion often referred to as “claim splitting.” 5th & LA v. Western Waterproofing Co.,

26 Inc., 87 Cal. App. 5th 781,788 (Cal. Ct. App. 2023). In California, this doctrine precludes further

27 proceedings if they are based on the same cause of action as the initial proceeding. Maldonado v.

1 Cir. 1985). A cause of action is defined as (1) a primary right possessed by the plaintiff, (2) a

2 corresponding primary duty devolving upon the defendant, and (3) a harm done by the defendant

3 which consists in a breach of such primary right and duty.” City of Martinez v. Texaco Trading &

4 Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003), citing Citizens for Open Access to Sand and Tide,

5 Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053, 1065, 71 Cal.Rptr.2d 77 (1998). California courts

6 consistently employ this test, known as the “primary rights” theory. Maldonado, 370 F.3d 945, 952

7 (9th Cir. 2004) (citing Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 904 (2002)).

8 As part of that analysis the court considers the harm suffered. Agarwal v. Johnson, 25 Cal.

9 3d 932, 955 (1979) (overruled on other grounds by White v. Ultramar, Inc., 21 Cal. 4th 563 (1979)).

10 “[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant, then

11 the same primary right is at stake even if in the second suit the plaintiff pleads different theories of

12 recovery, seeks different forms of relief and/or adds new facts supporting recovery.” Eichman v.

13 Fotomat Corp., 147 Cal. App. 3d 1170, 1174 (1983).

14 In Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir. 1994), the plaintiff was

15 terminated by Sheriff’s Department after several disciplinary actions. Id. at 1032. He asserted

16 wrongful termination throughout an administrative proceeding, which went unreviewed, and then

17 sued the defendants in federal court under § 1983. Id. The Ninth Circuit held that the prior

18 administrative proceeding had preclusive effect, and plaintiff could not relitigate whether his

19 federal civil rights were violated. Id. at 1034. The court reasoned that “the same primary right,

20 the right to continued employment, was at stake in both actions.” Id. Thus, the plaintiff’s alleged

21 civil rights violations merely “restate[d] his wrongful termination contentions in constitutional

22 terms.” Id. at 1034-35 (citation omitted). Citing Miller, this Court found in the above-mentioned

23 case, Wilson v. Oakland Unified Sch. Dist., 2024 U.S. Dist. LEXIS 43767 (N.D. Cal. 2024), that

24 the plaintiff’s First Amendment claim was actually litigated at the Skelly hearing because the cause

25 of action presented before the Court “encompasses the same primary right that was at stake in the

26 [administrative] proceeding.” Id. at *27. Like in Miller, the same primary right was his continued

27 employment. Id. The Court noted that Miller was “directly applicable” and the plaintiff was

1 In Takahashi v. Board of Trustees, 783 F.2d 848 (9th Cir. 1986), the plaintiff teacher

2 brought an action in state court against the defendant school district, seeking reinstatement of her

3 job. Id. at 848. After a hearing, the district terminated her for failing to maintain a suitable

4 learning environment in her classroom. Id. at 849. She pursued proceedings at the state trial and

5 appellate court levels, and received adverse judgments from both. Id. Finally, she brought an

6 action in federal district court, this time alleging that her termination violated her rights under the

7 Fourteenth Amendment by terminating her on account of her sex and ethnic origin, inter alia. Id.

8 The court held that both the prior actions and the present one, “the identical primary right – the

9 contractual right to employment – is at stake.” Id. at 851. The court further explained that “In

10 determining the primary right at stake, ‘the significant factor is the harm suffered. [citation

11 omitted]. Absent termination of her employment contract, Takahashi suffered no harm.” Id. at

12 851.

13 The instant case is distinguishable from Miller, Wilson, and Takahashi, because the

14 Plaintiff’s primary right at stake here is distinct from that in Grigorescu I. Grigorescu I involved

15 whether termination was warranted because the Plaintiff allegedly misrepresented her degree

16 qualifications. The hearing officer found that termination was not warranted because Plaintiff did

17 in fact have a master’s degree as she represented, and her employment was reinstated after a brief

18 suspension. In contrast, the instant case involves Ms. Grigorescu’s right to be free of harassment

19 in retaliation for her protected activity; that course of harassment involves an attempt to terminate

20 her along with other harassing actions. At issue is not a singular right to continued employment

21 (defeating a termination action), but a right to be free from a course of harassing conduct. Thus,

22 Ms. Grigorescu’s alleged civil rights violation does not merely “restate [her] wrongful termination

23 contentions in constitutional terms” because it involves a broader constellation of Defendant’s

24 allegedly harassing and retaliatory conduct that spanned several years. See Miller, 39 F.3d at

25 1034-35. Therefore, Plaintiff has not engaged in unlawful “claim splitting” by asserting herein the

26 failed attempt at termination as part of a larger course of conduct. Unlike Takahashi, the ruling in

27 Grigorescu I did not undermine her current claim. The fact that she prevailed in Grigorescu I

1 ii. Collateral Estoppel

2 Issue preclusion, or collateral estoppel, “precludes relitigation of issues argued and decided

3 in prior proceedings.” Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990). There are five

4 requirements. “First, the issue sought to be precluded from relitigation must be identical to that

5 decided in a former proceeding. Second, this issue must have been actually litigated in the former

6 proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the

7 decision in the former proceeding must be final and on the merits. Finally, the party against

8 whom preclusion is sought must be the same as, or in privity with, the party to the former

9 proceeding.” Id. at 341. As to the first element, the ‘identical issue’ requirement addresses whether

10 ‘identical factual allegations’ are at stake in the two proceedings … .” Id. at 342. The party

11 asserting collateral estoppel bears the burden of establishing these requirements. Id. at 341.

12 Here, the only issue of possible relevance actually litigated and decided in Grigorescu I

13 was whether Ms. Grigorescu misrepresented her attainment of a master’s degree. That issue was

14 resolved in her favor. It is not an adverse factual finding that can be used against her here.

15 Collateral estoppel does not preclude her current claim of retaliatory harassment. C.f. Basurto v.

16 Imperial Irrigation Dist., 211 Cal. App. 4th 866 (2012) (adverse finding in administrative

17 proceeding precluded claims later asserted in court).

18 d. Conclusion

19 Grigorescu I does not have preclusive effect upon the instant case. The Court denies

20 Defendant’s motion for reconsideration on the issue of preclusion.

21 3. Denial of Disability Accommodations

22 Finally, Defendant asserts as a further basis for reconsideration of the Court’s denial of

23 summary judgment the fact that the denial of disability accommodations does not constitute an

24 adverse action. The “Harassment Actions” include an instance of Defendant’s conduct in which

25 Defendant denied her disability accommodations. Order on MSJ at 15.

26 a. Rule 54(b)

27 As with the interlocutory judgment on preclusion, here too the Court reconsiders this

1 interlocutory judgment under Rule 54(b).5

2 b. Adverse Action

3 “In a First Amendment retaliation case, an adverse employment action is an act that is

4 reasonably likely to deter employees from engaging in constitutionally protected speech.”

5 Coszalter v. City of Salem, 320 F.3d 968, 970 (9th Cir. 2003). To show this element, courts apply

6 the “reasonably likely to deter” test. Greisen v. Hanken, 925 F.3d 1097, 1113 (9th Cir. 2019). The

7 key question is whether the retaliatory activity “would ‘chill or silence a person of ordinary

8 firmness’ from continuing to speak out.” Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 n.1 (9th

9 Cir. 2010). Further, “Various kinds of employment actions may have an impermissible chilling

10 effect. Depending on the circumstances, even minor acts of retaliation can infringe on an

11 employee’s First Amendment rights.” Coszalter, 320 F.3d at 975.

12 Here, the Court previously held that there was a genuine dispute of fact as to whether the

13 “Harassment Actions,” when viewed in the aggregate, were adverse actions because “especially

14 when taken together, [they] could be ‘reasonably likely to deter’ an employee from engaging in

15 protected activity.” Order on MSJ at 15-16. The Court appropriately included the denial of

16 Plaintiff’s disability accommodations within the “Harassment Actions” because the Court may

17 examine the employer’s actions in the aggregate when making an adverse action determination.

18 See Billings v. Town of Grafton, 515 F.3d 39, 54 n.13 (1st Cir. 2008) (“Retaliatory actions that are

19 not materially adverse when considered individually may collectively amount to a retaliatory

20 environment”); Martin v. Gates, no. 07-00513, 2008 U.S. Dist. LEXIS 84481 at *6 (D. Haw. Oct.

21 20, 2008); Suarez v. Del Toro, 2022 U.S. Dist. LEXIS 162572 at *20 (S.D. Cal. 2022) (finding

22 that defendants actions in the aggregate, including reassignment of workload, denial of requests

23 for additional training, aggressive actions, and denial of working remotely, constituted “adverse

24 employment actions that detrimentally affected the conditions of Suarez’s employment.”). When

25 looking at the “Harassment Actions” in aggregate, the Court finds that the denial of disability

26 accommodations is alleged to be part of a long series of actions which together comprised an

27

1 adverse action. Defendant’s citations to Aki v. Univ. of California Lawrence Berkeley Nat’l Lab’y,

2 74 F. Supp. 3d 1163, 1181 (N.D. Cal. 2014), Doe v. Department of Correction and Rehabilitation,

3 43 Cal. App. 5th 721, 735 (2019); and Christensen v. Washington State Dept. of Corrections, 2010

4 WL 1734841 (W.D. Wash. 2010) are all inapposite because those cases did not look at whether

5 the aggregate of actions could constitute an adverse action.6 Even if a denial of reasonable

6 accommodations alone did not constitute an adverse action, it still may be sonder along with the

7 other harassing actions to determine whether together they comprise an adverse action.

8 Therefore, the Court denies Defendant’s renewal of its summary judgment motion on the

9 denial of disability accommodations.

10 IV. MOTION FOR JUDGMENT ON THE PLEADINGS

11 A. Legal Standard

12 Rule 12(c) provides, “After the pleadings are closed — but early enough not to delay trial

13 — a party may move for judgment on the pleadings.” “Because a Rule 12(c) motion is

14 ‘functionally identical’ to a Rule 12(b)(6) motion, ‘the same standard of review’ applies to

15 motions brought under either rule.’” Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 887

16 (9th Cir. 2017) (quoting Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th

17 Cir. 2011)). Thus, judgment on the pleadings is proper when, “accepting all factual allegations in

18 the complaint as true and drawing ‘all reasonable inferences in favor of the nonmoving party,’” the

19 moving party is entitled to judgment as a matter of law. Id. at 886-87 (quoting TwoRivers v.

20 Lewis, 174 F.3d 987, 991 (9th Cir. 1999)).

21 B. Discussion

22 Defendant argues that Plaintiff fails to allege adverse actions within statute of limitations.

23 In light of the Court’s ruling on the motion for summary judgment, only two instances of conduct

24 can form the basis of Plaintiff’s First Amendment retaliation claim. The first is the first

25 termination attempt, Grigorescu I, which took place in July 2015. The second is other retaliatory

26

27

6 Furthermore, the issue in Aki was not whether the denial of disability accommodations was an

1 acts, which the Court grouped together as the “Harassment Actions,” which took place between

2 2014 and 2016. The acts from 2014 are as follows:

3 • A denial of participation in an African American students

mentorship program.

4 • A statement by Dean Frontiera that discussions about alleged

discrimination must be “continued in the presence of Eugene

5 Whitlock.”

• A ban from substituting for professors

6 • An incorrect teaching evaluation.

7 And from 2015:

• A failure to provide workplace disability accommodations,

8 and a requirement that Plaintiff take a leave of absence for

medical reasons.

9

Finally, from 2016:

10 • A statement by Defendant that Plaintiff recollects as follows:

“Whitlock shouted I was a bad employee, who only causes

11 problems, and that he wanted to never hear my name again.”

• A denial of teaching assignments throughout the year.

12 • A denial of a four-day a week work schedule so that Plaintiff

could teach at SFSU on Fridays (January 5, 2016).

13

In response, Plaintiff contends that equitable tolling applies because she was simultaneously

14

pursuing a state court action against Defendant based on the same conduct that forms the bases of

15

her First Amendment retaliation claim. Opposition at 2-3.

16

1. Procedural validity

17

As an initial matter, Defendant’s motion for judgment on the pleadings is likely

18

procedurally proper because the Court ordered that parties could submit dispositive motions after

19

summary judgment but before trial. Docket No. 103 at 5 (Order Granting Joint Stipulation on

20

Scheduling). Furthermore, while a motion for judgment on the pleadings ordinarily should be

21

made promptly after the close of pleadings, it is considered timely if it is made early enough to not

22

delay trial or cause prejudice to the non-movant. Charles Alan Wright & Arthur R. Miller, Federal

23

Practice and Procedure § 1367 (3d ed. 2004). The fact that Defendant did not previously raise the

24

statute of limitations in an earlier motion to dismiss does not bar the instant motion in the absence

25

of prejudice. Here, a 1-week jury trial is set for November 2024 (November 12, 13, 15, 18, 19),

26

and the final pretrial conference is set for October 2024. Docket No. 103. Holding the hearing for

27

this motion in March 2024 does not delay the trial which is five months away. Nor has Plaintiff

1 shown that the instant motion would be prejudicial at this time. Therefore, the Court considers the

2 instant motion.

3 Plaintiff again contends here that the trial court is divested of jurisdiction because

4 Defendant filed a notice of appeal to the Ninth Circuit. For the same reasons stated above for

5 preclusion and denial of disability accommodations, this Court retains jurisdiction because

6 Defendant’s motion is independent of its assertion of qualified immunity, and in any event, the

7 Court may act under Rule 62.1. The Court denies Defendant’s motion for the reasons stated

8 below.

9 1. Statute of Limitations for Section 1983 claim

10 The Ninth Circuit has found that the comparable statute of limitations for § 1983 actions in

11 California is two years. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Here, Plaintiff filed

12 the initial complaint on September 27, 2018 (Docket No. 1). Because the statute of limitations is

13 two years, only her claims after September 27, 2016 survive unless equitable tolling applies.

14 “[T]he effect of equitable tolling is that the limitations period stops running during the

15 tolling event, and begins to run again only when the tolling event has concluded. As a

16 consequence, the tolled interval, no matter when it took place, is tacked onto the end of the

17 limitations period, thus extending the deadline for suit by the entire length of time during which

18 the tolling event previously occurred.” Lantzy v. Centex Homes 31 Cal.4th 363, 370–371 (2003).

19 “Where a federal claim is not governed by a federal statute of limitations, federal courts “have

20 generally referred to state law for tolling rules, just as we have for the length of statutes of

21 limitations.” Wallace v. Kato, 549 US 384, 394 (2007).

22 In California, the requirements for equitable tolling are timely notice, lack of prejudice to

23 the defendant, and reasonable and good faith conduct on the part of the plaintiff. Addison v. State

24 of California, 21 Cal.3d 313, 319 (1978). “The timely notice requirement essentially means that

25 the first claim must have been filed within the statutory period. Furthermore the filing of the first

26 claim must alert the defendant in the second claim of the need to begin investigating the facts

27 which form the basis for the second claim. Generally this means that the defendant in the first

1 917, 924 (1983). “The second prerequisite essentially translates to a requirement that the facts of

2 the two claims be identical or at least so similar that the defendant’s investigation of the first claim

3 will put him in a position to fairly defend the second.” Id. at 925. Furthermore, “[c]ourts have

4 adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute

5 when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to

6 lessen the extent of his injuries or damage.” Addison v. State of California, 21 Cal.3d 313, 317

7 (1978).

8 In Addison v. State, 21 Cal.3d 313 (1978), the California Supreme Court found that under

9 the doctrine of equitable tolling, the statute of limitations period was suspended while plaintiffs’

10 claims were pending in another tribunal. Id. at 319. There, the plaintiffs originally timely filed a

11 tort action in federal court. Id. at 315. The federal court declined to assert jurisdiction, without

12 prejudice, and after the statute of limitations period expired, plaintiffs filed an action in state court.

13 Id. at 315-16. The Supreme Court found that equitable tolling applied because the requirements of

14 timely notice, lack of prejudice, and reasonable and good faith conduct on the part of the plaintiff

15 “seemingly are present here.” Id. The Court noted that the same set of facts may be the basis for

16 claims under both federal and state law. Id. As to good faith conduct, the plaintiff filed his

17 second claim a short time after tolling ended. Id. The Court also further explained, “We discern

18 no reason of policy which would require plaintiffs to file simultaneously two separate actions

19 based upon the same facts in both state and federal courts since ‘duplicative proceedings are surely

20 inefficient, awkward and laborious.’” Id.

21 As in Addison, the same set of facts form the basis for Plaintiff’s claims in both federal and

22 state court, the prior court denied the claims, and Plaintiff filed the instant federal action after the

23 statute of limitations expired. Like in Addison, here, the limitations are suspended while

24 Plaintiff’s claims were pending in state court. First, Defendants appear to have received timely

25 notice of Plaintiff’s claims in state court; they do not claim otherwise. Plaintiff filed the complaint

26 in state court in 2016, which appears to be within the statute of limitations. Again, Defendant

27 does not contend otherwise. Second, Defendant is not prejudiced because the facts alleged in the

1 suggests Defendant is not in position to fairly defend the instant suit given the sequence of events.

2 Third, it appears that Plaintiff acted in good faith in filing the federal court action because she filed

3 the complaint in 2018, within the same year that the state court denied her writ of mandate, similar

4 to Addison. Therefore, the doctrine of equitable tolling applies and the statute of limitations

5 period for her Section 1983 claims was suspended while her claims were pending in state court

6 until 2018.

7 In sum, Plaintiff is not time-barred from asserting the two adverse actions of the

8 “Harassment Actions” and Grigorescu I to form her First Amendment retaliation claim.

9 V. CONCLUSION

10 The Court DENIES Defendant’s motion for reconsideration and motion for judgment on

11 the pleadings.

12

13 IT IS SO ORDERED.

14

15 Dated: May 24, 2024

16

17 ______________________________________

EDWARD M. CHEN

18 United States District Judge

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