Opinion
Civ. 2:20-cv-02172-SU
05-13-2021
ANTHONY CADE, Plaintiff, v. ONTARIO SCHOOL DISTRICT NO. 8C, Defendant.
FINDINGS & RECOMMENDATION
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Anthony Cade brings this civil rights action against Defendant Ontario School District No. 8C (the “District”), alleging violation of his First and Fourteenth Amendment rights. The case comes before the Court on the District's Motion to Dismiss, filed February 19, 2021. ECF No. 8. Cade has not responded to the District's Motion and the time for doing so has passed. The Court concludes that this case is suitable for resolution without oral argument. The District's Motion should be GRANTED and this case should be dismissed.
LEGAL STANDARD
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
INCORPORATION BY REFERENCE
The District asks the Court to consider the Extra Duty/Extended Contract between Cade and District, by which Cade was made the head football coach for Ontario High School. Def. Mot. Ex. 1. Generally, a court may not consider material beyond the complaint when resolving a Rule 12(b)(6) motion. Fed.R.Civ.P. 12(d). However, a court may consider materials beyond the pleadings without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment under two exceptions: judicial notice and incorporation by reference. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
Incorporation by reference is a “judicially-created doctrine that treats certain documents as though they were part of the complaint itself.” Khoja, 899 F.3d at 1002. This doctrine is designed to prevent plaintiffs from selectively referencing portions of documents that support their claims, while omitting portions of those documents that weaken “or doom” their claims. Id. The Ninth Circuit has extended this doctrine to consider evidence on which the complaint “necessarily relies” if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Courts must use caution when drawing inferences from documents incorporated by reference on a motion to dismiss. Khoja, 899 F.3d at 1003.
In this case, the Extra Duty Contract is referenced in the Complaint, although not by name, as providing a basis for Cade's entitlement to a coaching position with the District. Compl. ¶¶ 5, 31. As such, it is central to at least some of Cade's claims. Cade has not responded to the District's Motion and, as a result, has not challenged the authenticity of the Extra Duty Contract, nor has he challenged the propriety of the Court's consideration of the Extra Duty Contract. The Court concludes that the Extra Duty Contract is a proper subject for consideration under the doctrine of incorporation by reference.
BACKGROUND
Plaintiff Anthony Cade accepted a position as a teacher and head football coach with the District during the 2019-2020 school year. Compl. ¶ 5; Def. Mot. Ex. 1. Cade's term as head football coach of Ontario High School (“OHS”) ran from August 2019 through November 2019. Def. Mot. Ex. 1. Cade was originally hired to serve as an athletic conditioning teacher but was reassigned as a social studies teacher. Compl. ¶ 7.
The District received complaints about Cade's treatment of students on the OHS football team, including allegations of bullying and name-calling. Compl. ¶¶ 9-10. Cade does not dispute that he used demeaning names for players but attributes the practice to his preferred motivational style. Id. at ¶¶ 9-12.
On September 25, 2019, the District relieved Cade of his coaching duties. Compl. ¶ 14. Cade was given the option of resigning as head football coach, which Cade accepted. Id. at ¶¶ 14-15. Cade “formally notified Defendant's superintendent and board of trustees of the reasons of his ‘resignation' on October 8, 2019.” Id. at ¶ 17.
Cade alleges that, at some point, his personnel file was provided to the press in response to a Freedom of Information Act request. Compl. ¶ 16. Cade's resignation was covered in the news media. Id. at ¶ 19. Cade alleges that this has damaged his reputation and prevented him from securing another position as a football coach. Id. at ¶ 20.
Cade alleges that, following his resignation as coach of the football team, he was subjected to a campaign of harassment and false allegations that he was derelict in his teaching duties. Compl. ¶ 21. This included allegations that Cade used social media during teaching hours, failed to attend meetings, left his classroom unsecured, and fell short of his grading responsibilities. Id. Cade alleges that his children, who were students at OHS, were subjected to additional scrutiny, which prompted Cade to withdraw them from OHS and enroll them at a private school. Id. at ¶ 24.
Cade alleges that he “considered himself constructively discharged in November 2019, ” and apparently resigned at some point, although Cade does not allege when he left the District's employ. Compl. ¶¶ 25 31(b).
In their Motion, the District offers that Cade “voluntarily resigned his teaching position unexpectedly to take another job, ” and that his “resignation was effective on December 13, 2019.” Def. Mot. 2. Unfortunately, this information was not alleged in the Complaint and is not properly subject to judicial notice, which prevents the Court from considering it.
DISCUSSION
Cade alleges, pursuant to 42 U.S.C. § 1983, that the District violated his Fourteenth Amendment right to due process and that the District retaliated against him for the exercise of his First Amendment rights. To maintain a claim under § 1983, “a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
I. Procedural Due Process
Cade contends that he was deprived of his procedural due process rights when he was obliged to resign as coach of the football team and when he resigned from his teaching position. Compl. ¶¶ 31(a), (b). To prevail on a § 1983 procedural due process claim, “the plaintiff must establish the existence of (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process.” Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011) (internal quotation marks and citation omitted, alterations normalized). In this case, Cade alleges he was deprived of a property interest in his continued employment when he resigned as the OHS football coach and later resigned from his teaching position. Compl. ¶¶ 31(a), (b).
“Property interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
“A government employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the job.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). However, neither “an abstract need or desire, ” nor a “unilateral expectation” of continued employment suffices to create a property interest. Bd. of Regents, 408 U.S. at 577. “[M]ere expectation that employment will continue does not create a property interest” and if, “under state law, employment is at-will, then the claimant has no property interest in the job.” Portman, 995 F.2d at 904. Under Oregon law, “there is a legal presumption that absent a contractual, statutory or constitutional requirement, an employer may discharge an employee at any time and for any reason.” Robinson v. City of Donald, Case No. 6:19-cv-01145-MK, 2021 WL 504835, at *2 (D. Or. Jan. 26, 2021).
In the case of Cade's Extra Duty Contract, the plain terms of the agreement do not provide for any process and expressly disclaim any guarantees of future employment. Def Mot. Ex. 1. The Court also notes that the contract is conditional on compliance with District policies and contingent upon the availability of funds. Id. The Court concludes that Cade had failed to allege any property interest in his position as the OHS football coach.
With respect to Cade's teaching position, the Complaint alleges that Cade resigned after he “considered himself constructively discharged in November 2019.” Compl. ¶¶ 25, 31(b). A plaintiff who voluntarily resigns from his position cannot show that he was deprived of a property interest for purposes of due process unless he can allege facts sufficient to support a finding of constructive discharge. Botello v. City of Salem, Case No. 6:20-cv-00358-MC, 2020 WL 4431781, at *5 (D. Or. July 31, 2020).
To state a claim for constructive discharge, a plaintiff must allege that (1) the employer intentionally created or intentionally maintained specified working conditions; (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave as a result of the working conditions, or knew that the employee was substantially certain to leave as a result of those working conditions; and (4) the employee did leave the employment as a result of those conditions. Hernandez-Nolt v. Washington Cnty., 283 Or.App. 633, 641 (2017).
In this case, Cade has failed to allege a constructive discharge beyond his conclusory statement at paragraph 25 of the Complaint. At most, Cade alleges that he was subject to false allegations that he was derelict in his duties as a teacher, Compl. ¶¶ 21-22, but Cade does not allege that he was disciplined based on those allegations or that the District took any action against him. Accordingly, the Court concludes that Cade has failed to allege constructive discharge and, as a result, has failed to state a claim for violation of his due process rights.
II. First Amendment Retaliation
Cade alleges that the District “harassed Plaintiff after he exercised his free speech rights to defend himself to the board of trustees and superintendent.” Compl. ¶ 31(c). “In order to sustain a claim against a government employer for violation of the First Amendment, an employee must show: (1) that he or she engaged in protected speech; (2) that the employer took adverse employment action; and (3) that his or her speech was a substantial or motivating factor for the adverse employment action.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (internal quotation marks and citation omitted).
Speech is protected if it addresses “a matter of legitimate public concern.” Pickering v. Bd. of Educ, 391 U.S. 563, 571 (1968). “Speech that concerns issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government merits the highest degree of first amendment protection.” Coszalter, 320 F.3d at 973 (internal quotation marks and citations omitted). “On the other hand, speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public's evaluation of government agencies is generally not of public concern. Id. (internal quotation marks and citations omitted). The inquiry into whether speech touches on a matter of public concern is a question of law. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 964 (9th Cir. 2011).
In this case, the speech at issue is Cade's notification of the superintendent and the board of trustees of the reasons for his resignation as coach of the OHS football team. Compl. ¶ 17. The speech concerns a personnel dispute between Cade and the District and, relatedly, whether it was acceptable for Cade to use name-calling and other “firmer, stronger” language in the course of his coaching duties. Compl. ¶¶ 9-11. Cade has failed to allege that his speech involved matters of public concern and has, therefore, failed to state a claim for First Amendment retaliation.
III. Monell Liability
Finally, Cade appears to bring claims for Monell liability based on a policy, custom, or practice of the District. Compl. ¶ 32. A municipality may not be held liable under § 1983 unless the plaintiff can show “(1) a municipal employee violated his constitutional rights; (2) the municipality has a custom or policy; (3) that policy amounts to deliberate indifference to constitutional rights; and (4) this custom or policy was the moving force behind the employee's violation of plaintiff s constitutional rights.” Shepard v. City of Portland, 829 F.Supp.2d 940, 969 (D. Or. 2011) (citing Monell v. Dept. of Soc. Servs., 435 U.S. 658, 694 (1978)).
As discussed in the previous section, Cade has failed to allege a violation of his constitutional rights. Furthermore, Cade has failed to allege facts supporting the existence of a policy or custom that was the moving force behind Cade's injuries. Cade's only allegation concerning any policy or custom of the District is the conclusory statement that policies exist and that he was deprived of his rights pursuant to those policies. Compl. ¶ 32. This fails to satisfy federal pleading standards and Cade's Monell claim should be dismissed.
For the reasons set forth above, the District's Motion should be GRANTED and this case should be DISMISSED. The District requests that dismissal be with prejudice. Although Cade's failure to respond to the District's Motion weighs against granting leave to amend, the Court concludes that at least some of the defects identified in this opinion might be remedied by the allegation of additional facts. Dismissal should therefore be with leave to amend.
CONCLUSION
Defendant's Motion to Dismiss, ECF No. 8, should be GRANTED and this case should be DISMISSED with leave to amend. Plaintiff should be given fourteen (14) days in which to file an amended complaint. Plaintiff should be warned that failure to file an amended complaint within the allotted time will result in a judgment of dismissal.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED.