Opinion
No. CIV. 05-1099 FCD KJM.
February 22, 2006
MEMORANDUM AND ORDER
This matter comes before the court on defendants' motions to dismiss plaintiff Deborah Henson's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, plaintiff moves to amend her second amended complaint pursuant to Rule 15(a). For the reasons set forth below, defendants' motions are GRANTED in part and DENIED in part, and plaintiff's motion is GRANTED.
Defendants filed four separate motions to dismiss. Due to the overlapping facts and issues presented by these motions, the court addresses all defendants' motions together.
All further references to a "Rule" are to the Federal Rules of Civil Procedure.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
In April of 2003, plaintiff submitted her resume to the California Merit Systems Board for consideration for the position of supervisor or director of a Child Protective Services ("CPS") division. (Pl.'s Second Am. Compl., filed August 2, 2005, at ¶ 15). Thereafter, plaintiff was contacted by defendant Crosby to interview for the position of CPS Supervisor in defendant Lassen County ("County"). (Id. at ¶ 16). After plaintiff interviewed for the position, she was offered the job by defendant Crosby. (Id. at ¶¶ 17-18). Before accepting the position, plaintiff informed defendant Crosby that she was in remission from panic/anxiety disorder and that such condition could recur if more than ordinary levels of stress were involved in her position at CPS. (Id. at ¶ 18).Plaintiff commenced employment on May 12, 2003, relying on defendant Crosby's assurances that CPS was in good order and provided health insurance benefits to its managerial employees while on disability leave. (Id. at ¶¶ 24, 25, 29). However, plaintiff later learned that CPS was subject to a grand jury investigation and was in a state of non-compliance with the California Department of Social Services. (Id. at ¶¶ 20, 32). This was not disclosed to plaintiff during her interview process; rather defendants Crosby and Margolies intentionally kept this information from plaintiff. (Id. at ¶¶ 21-24). Plaintiff also learned that CPS was understaffed by more than half of its required full-time employees, which dictated that plaintiff work between 70 and 80 hours per week. (Id. at ¶¶ 30-31).
Plaintiff was promoted to Director of CPS in November 2003, at which time she was informed that, as a Director, she was subject to termination only for cause. (Id. at ¶¶ 33-34). Shortly after she was promoted, a female-on-female sexual harassment complaint was lodged against plaintiff. (Id. at ¶ 35). During this time, plaintiff became the subject of sexually-orientated slurs by members of CPS staff. (Id. at ¶ 36). In early January 2004, plaintiff demanded that action be taken regarding the allegedly false sexual harassment claim filed against her. (Id. at ¶ 40). Although this allegation was recanted, no action was taken to remedy such accusations or clear plaintiff's name. (Id. at ¶¶ 41-44). In addition, these allegations were investigated by Jim Jackson in March and April 2004. (Id. at ¶ 53). Mr. Jackson found that plaintiff was injured by the false allegations and that disciplinary action should be taken against the complainant. (Id.) However, no action was taken in response to Mr. Jackson's report. (Id. at ¶ 54).
In early 2004, plaintiff sought to hire a CPS social worker. (Id. at ¶ 45). After plaintiff refused to hire defendant Mannel's wife because she did not apply for the position through the proper channels, plaintiff offered the position to Bill Snitkin. (Id. at ¶¶ 38-39, 45). Defendant Margolies directed plaintiff to rescind the job offer to Mr. Snitkin, or in the alternative, prepare for his termination by "starting a paper trail," because Mr. Snitkin was HIV positive. (Id. at ¶¶ 46).
In March 2004, plaintiff sought medical care for anxiety induced chest pains after defendants Whiteman and Mannel were abusive to plaintiff in connection with plaintiff's second refusal to hire defendant Mannel's wife. (Id. at ¶ 51). Thereafter, plaintiff believes that defendants Whiteman, Mannel, and others attempted to solicit negative information about plaintiff, which may have resulted in the filing of a second female-on-female sexual harassment complaint against plaintiff. (Id. at ¶¶ 51-52, 55). Again, the complaint was later recanted. (Id. at ¶ 58). Plaintiff believes that defendants Whiteman, Chapman, and possibly Bixby, met with Woody Morgan, managing editor of the Lassen County News. (Id. at ¶ 56). Plaintiff also believes that these defendants made defamatory statements and provided false and misleading information to Mr. Morgan regarding plaintiff's professionalism and management of CPS. (Id. at ¶¶ 56-57). Thereafter, plaintiff was "shocked and humiliated" by the call for plaintiff's termination in Mr. Morgan's article published in the Lassen County News on May 11, 2004. (Id. at ¶¶ 59-60).
Plaintiff believes that, as a result of her complaints regarding the allegedly false sexual harassment claims, her refusal to hire defendant Mannel's wife, her refusal to rescind the job offer to Mr. Snitkin, and her refusal to engage in discriminatory conduct toward Mr. Snitkin, defendants Whiteman, Chapman, Mannel, and others conspired to create intolerable working conditions and to interfere with her civil rights so as to cause her to quit her job or take a disability leave. (Id. at ¶¶ 47-50).
On June 1, 2004, defendant Bixby informed plaintiff by memorandum that he was placing the operations of CPS under the control of defendant Mannel. (Id. at ¶ 61). On that same date, plaintiff began a medical leave as a result of work-related stress. (Id. at ¶ 62). Subsequently, plaintiff sought the care of a psychiatrist, who diagnosed plaintiff as suffering from post traumatic stress disorder. (Id. at ¶ 63). As a result of her mental and emotional condition, plaintiff has been unable to seek suitable re-employment. (Id. at ¶ 66).
After plaintiff took medical leave, defendant Bixby demanded, by letter on June 15, 2004, that plaintiff refrain from contacting any member of the staff at CPS. (Id. at ¶ 64). This action effectively ended plaintiff's authority over CPS. (Id.) In November 2004, plaintiff received a letter from Ronald Vossler, Lassen County Human Resources Director, notifying plaintiff that her health care benefits had been discontinued effective mid-August 2004. (Id. at ¶ 68 and Ex. 14).
Plaintiff filed a claim for damages with the County on December 10, 2004. (Id. at ¶ 70). Plaintiff's claim alleged that plaintiff was wrongfully terminated on December 1, 2004. (Id. at Ex. 15). Plaintiff's claim also alleged that plaintiff was subjected to a hostile work environment, which caused her to have an emotional breakdown and to suffer from post traumatic stress disorder. (Id.) In addition, plaintiff's claim included allegations of malicious acts by County officials, slander and retaliation for whistle blowing. (Id.) Plaintiff alleged that John Kettleson, all Supervisors of Lassen County, William Bixby, Margaret Crosby, and others caused her injuries. (Id.) The County denied plaintiff's claim on January 11, 2005. (Id. at ¶ 71).
Subsequently, plaintiff filed a charge of discrimination with the California Department of Fair Employment and Housing ("DFEH") on June 22, 2005. (Id. at ¶ 72). The DFEH issued a right-to-sue notice on June 27, 2005. (Id. at ¶ 73). Plaintiff then filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 12, 2005. (Id. at ¶ 74). The EEOC issued a right-to-sue notice on September 1, 2005. (Pl.'s P. A. in Supp. of Pl.'s Mot. for Leave to Am., filed October 14, 2005, at 2).
Plaintiff's second amended complaint includes claims for: (1) fraud, (2)intentional infliction of emotional distress, (3) libel, (4) conspiracy, (5) tortious interference with contractual relations, (6) violations of the California Fair Employment and Housing Act ("FEHA") for sexual orientation harassment and retaliation, and (7) violations of her First Amendment and Due Process rights under to 42 U.S.C. § 1983. Defendants subsequently brought motions to dismiss plaintiff's second amended complaint.
STANDARD
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.
The court declines to consider the extrinsic evidence provided by Henson in support of her oppositions to defendants' motions to dismiss. In considering a motion to dismiss under Rule 12(b)(6), the court should look only to the pleadings. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
A complaint need not plead all elements of a prima facie case in order to survive a motion to dismiss. Swierkewicz v. Sorema N.A., 534 U.S. 506, 510-512 (2002) (rejecting a heightened pleading standard for employment discrimination and civil rights cases). Fair notice of the grounds for relief along with a short and plain statement of the claim are all that is required. Id. at 508 (citing Fed.R.Civ.Proc. 8(a)(2)).
Given that the complaint is construed favorably to the pleader, the court may not dismiss the complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957);NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Nevertheless, it is inappropriate to assume that plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged."Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir. 1986).
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201.See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).
ANALYSIS
In response to defendants' motions to dismiss, plaintiffs do not oppose defendants' motions with respect to the following claims: (1) all of plaintiff's claims against defendants Pyle, Keifer, Dahle, and Hanson in their official capacities as members of the Board of Supervisors of Lassen County; (2) plaintiff's claims of intentional infliction of emotional distress against defendants County, Mannel, Whiteman, Bixby, and Chapman; (3) plaintiff's claims of libel against the County, Mannel, Whiteman, Bixby, and Chapman; (4) plaintiff's claims of civil conspiracy against defendants County, Crosby, Margolies, Mannel, Bixby, Whiteman, and Chapman; and (5) plaintiff's claim of tortious interference with contractual relations against defendant County.
Plaintiff's counsel admitted that this claim was erroneously brought as a libel claim when it should have been brought as a slander claim and has requested leave to amend. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 16). Plaintiff's request for leave to amend is addressed in Section D of this Order.
Plaintiffs' remaining claims are (1) claims for fraud against defendants County, Crosby, Margolies, and Chapman; (2) claims for intentional infliction of emotional distress against defendants Crosby and Margolies; (3) claims of tortious interference with contractual relations against defendants Mannel, Bixby, Whiteman, and Chapman; (4) claims for sexual orientation harassment and retaliation in violation of FEHA against defendants County, Mannel, Bixby, Whiteman, and Chapman; and (5) claims for First Amendment and Due Process violations under 42 U.S.C. § 1983 against defendants County, Margolies, Mannel, Bixby, Whiteman, and Chapman.
A. State Tort Claims
1. Fraud
Defendants County, Crosby and Margolies argue that plaintiff's fraud claim is barred because plaintiff failed to comply with the requirements of the California Tort Claims Act ("CTCA"), Cal. Gov't Code § 900, et seq. Specifically, defendants argue that plaintiff's claim filed with the County did not contain any factual correlation to the fraud claim asserted in the complaint. Pursuant to Cal. Government Code § 945.4,
no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to by presented in accordance with Chapter 1 (commencing with section 900) and Chapter 2 (commencing with section 910) of Part 3 of this division until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.
Cal. Gov't Code § 945.4 (West 2005). Moreover, any suit against a public employee is barred in cases where a plaintiff's action against the agency is barred for failure to present a claim. Cal. Gov't Code § 950.2 (West 2005). The 1965 Amendment to § 950.2 makes it clear the "the presentation of a claim to the employing public entity is a prerequisite to suit against an employee."Id. Therefore, in order to state a tort claim against a public entity and its employees, plaintiff must first present a claim to the government entity for money or damages, with few exceptions. Cal. Gov't Code § 905 (West 2005). Tort claims such as the instant claims for fraud, intentional infliction of emotional distress, libel, conspiracy, and tortious interference with contractual relations are not listed among the exceptions to § 905. Id.
Plaintiff has the burden of pleading compliance with the CTCA in her complaint. Wood v. Riverside General Hospital, 25 Cal. App. 4th 1113, 1119 (1994). Moreover, compliance with the CTCA is mandatory. City of San Jose v. Superior Court, 12 Cal. 3d 447, 454 (1974). Federal courts have recognized these requirements.See Ortega v. O'Connor, 764 F.2d 701, 707 (9th Cir. 1985),rev'd on other grounds, 107 S.Ct. 1492 (1987) (failure to comply with claim-filing requirements imposed by CTCA bars pendent state claims). Finally, where employees of the agency in question act within their express or implied authority, despite the wrongful nature of their actions, a complaint based on the employees' actions may be properly dismissed for failing to allege proper filing of the claim with the employing government entity. Neal v. Gatlin, 35 Cal. App. 3d 871, 877-78 (1973).
The purpose of the CTCA is to "provide the public entity with sufficient information to enable it to adequately investigate the claims and to settle them, if appropriate, without the expense of litigation." City of San Jose, 12 Cal. 3d at 455. Pursuant to Cal. Gov't Code § 910, a claim must state "the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted" and provide "[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim." Cal. Gov't Code § 910 (West 2005). However, it is not necessary that the claim "specify each particular act or omission later proven to have caused the injury." Stockett v. Ass'n of Cal. Water Agencies Joint Powers Insurance Auth., 34 Cal. 4th 441, 447 (2004). The purposes of the CTCA are met "if the claim gives adequate information for the public entity to investigate." Id. at 449. "[A]dditional detail and elaboration in the complaint is permitted." Id. Nevertheless, the facts underlying each cause of action in the complaint must be reflected in the claim. Id. at 447. The complaint may be barred where the complaint alleges liability based on different facts than those provided in the claim. Id. at 447-448.
If a claim alerts a public entity to the existence of a claim for monetary damages and the possibility of a lawsuit, but does not substantially comply with §§ 910 and 910.2, the claim is defective and triggers the operation of §§ 910.8, 911 and 911.3.Phillips v. Desert Hospital District, 49 Cal. 3d 699, 701-702 (1989). Pursuant to these sections, a public entity is required to "notify the claimant of any insufficiencies of content or timeliness that prevent a claim as presented from satisfying the requirements of the [CTCA]." Id. at 702; Cal. Gov't Code §§ 910.8, 911 and 911.3 (West 2005). Failure to provide such notice waives any defenses based on those insufficiencies. Cal. Gov't Code §§ 911 and 911.3. The possibility of waiver encourages the public entity to promptly investigate claims, which best serves the purposes of the CTCA. Phillips, 49 Cal. 3d at 705, 711.
Plaintiff's claim must reflect facts to support each cause of action in the complaint. Stockett, 34 Cal. 4th at 447. However, plaintiff's claim failed to mention the misrepresentations and omissions underlying plaintiff's fraud claim. The County was not on notice to investigate plaintiff's claim of fraud because plaintiff's claim lacked any factual basis to support such a claim. Therefore, plaintiff's claim did not trigger the County's duty to provide plaintiff with notice of untimeliness or insufficiency of content. Phillips, at 702; Cal. Gov't Code §§ 910.8, 911 and 911.3.
Plaintiff's fraud claim is barred for failure to comply with the requirements of the CTCA because there is no factual correlation between plaintiff's claim and plaintiff's allegation of fraud in the second amended complaint. Accordingly, defendants' motions to dismiss plaintiff's fraud claim are GRANTED with prejudice.
2. Intentional Infliction of Emotional Distress
Plaintiff also asserts her claim of fraud against the Lassen County Board of Supervisors, in their official capacities. Plaintiff did not oppose the motion to dismiss all claims against defendants Pyle, Keifer, Dahle, and Hanson. However, defendant Chapman is also a member of the Board of Supervisors. Chapman is not named as an individual defendant in the fraud claim and it is unclear from the moving papers if plaintiff did not oppose dismissal of the fraud claim against Chapman in his official capacity. However, if plaintiff is asserting a fraud claim against defendant Chapman, it is also barred for failure to comply with the CTCA.
Defendants Crosby and Margolies argue that plaintiff's intentional infliction of emotional distress claim fails because it does not comply with the CTCA. Plaintiff alleges in her second amended complaint that she suffers from post traumatic stress disorder caused by the misrepresentations and omissions as to the true condition of CPS made by defendants Crosby and Margolies during plaintiff's hiring process. (Pl.'s Second Am. Compl. ¶¶ 20-24, 32, 63, 88-89). However, plaintiff's claim with the County did not contain any factual allegations relating to these omissions and misrepresentations. Therefore, plaintiff's claim for intentional infliction of emotional distress against defendants Crosby and Margolies is barred for failure to comply with the CTCA. See Stockett, 34 Cal. 4th at 447. Accordingly, defendants' motions to dismiss plaintiff's intentional infliction of emotional distress claim are GRANTED with prejudice.
Plaintiff did not oppose defendants County, Mannel, Whiteman, Bixby, and Champman's motion to dismiss her claims of intentional infliction of emotional distress because they were barred by the exclusivity provisions of California's Workers' Compensation laws. However, plaintiff did not address the applicability of such exclusivity provisions to her claims against defendants Crosby and Margolies.
5. Tortious Interference with Contractual Relations
Defendants Mannel, Bixby, Whiteman, and Chapman argue that plaintiff's tortious interference with contractual relations claim fails because plaintiff was not employed pursuant to a contract. The existence of a valid contract is an essential element of a tortious interference with contractual relations claim. Bed, Bath Beyond of La Jolla, Inc. v. La Jolla Vill. Square Venture Partners, 52 Cal. App. 4th 867 (1997).
Defendants also argue that plaintiff's claim is barred for failure to comply with the CTCA. For the reasons set forth herein, the court need not reach the issue of compliance with the CTCA.
In California, it is well settled that
public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law.Miller v. State of California, 18 Cal. 3d 808, 813-814 (1977).See also Keiser v. Lake County Super Court, 2005 WL 3370006 (N.D. Cal. Dec. 12, 2005); Shoemaker v. Myers, 52 Cal. 3d 1 (1990); Hill v. City of Long Beach, 33 Cal. App. 4th 1684 (1995); Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426 (1988); Hinchliffe v. City of San Diego, 165 Cal. App. 3d 722 (1985). As a public employee, plaintiff's employment with the County is governed by statute and not by contract. Therefore, plaintiff's claim fails as a matter of law. Accordingly, defendants' motion to dismiss plaintiff's tortious interference with contractual relations claim is GRANTED with prejudice.
B. Fair Employment and Housing Act Claims
Defendants County, Mannel, Bixby, Whiteman, and Chapman argue that plaintiff's FEHA claims should be dismissed because they are barred for untimeliness. FEHA provides that "[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred." Cal. Gov't Code § 12960 (West 2006). The filing of a complaint with the DFEH is a prerequisite to bringing a civil action. Rodriquez v. Airborne Express, 265 F. 3d 890, 896 (9th Cir. 2001).
Plaintiff alleges that she filed a complaint with the DFEH "on or about June 22, 2005, and within one year of the series of discriminatory actions by the defendants." (Pl.'s Second Am. Compl. at ¶ 72). Plaintiff further alleges that the DFEH issued a right-to-sue notice on or about June 27, 2005. (Id. at ¶ 73). Therefore, any offending conduct occurring prior to June 22, 2004, cannot serve as a basis for liability pursuant to FEHA unless an exception to the statute of limitations applies.Cucuzza v. City of Santa Clara, 104 Cal. App. 4th 1031, 1040 (2002).
Plaintiff may be able to establish an equitable exception to the statute of limitations relating to her FEHA claims. See Rodriguez, 265 F.3d 890; Cervantes v. City of San Diego, 5 F.3d 1273 (9th Cir. 1993); Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001). Plaintiff addresses the application of the continuing violation doctrine and implicates other equitable tolling doctrines in her opposition to defendants' motion to dismiss. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 24-26). However, plaintiff must set forth sufficient facts in her second amended complaint to support the invocation of such equitable theories. Plaintiff has failed to do so. As such, the court cannot consider the possible applicability of such doctrines for the purposes of this motion to dismiss pursuant to Rule 12(b)(6).
Plaintiff began a work-related medical leave on June 1, 2004, and the majority of plaintiff's allegations relating to her sexual orientation harassment and retaliation claims occurred prior thereto. (Pl.'s Second Am. Compl. at ¶¶ 40-62). Therefore, plaintiff has not exhausted her administrative remedies as to these allegations. Accordingly, defendants' motion as to these allegations is GRANTED.
Plaintiff alleges that the County sent her a denial of benefits letter in November 2004. (Id. at ¶ 68). With respect to this conduct, plaintiff has properly alleged that she timely filed her complaint with the DFEH and exhausted all administrative remedies prior to bringing this action. However, the notice of discontinuance of disability benefits, standing alone, is insufficient to support plaintiff's claims of sexual orientation harassment and retaliation in violation of FEHA. Accordingly, defendants' motion to dismiss plaintiff's FEHA claims is GRANTED.
C. 42 U.S.C. § 1983 Claims
To state a claim under 42 U.S.C. § 1983, plaintiff must plead facts demonstrating that (1) defendants acted under color of state law; and (2) deprived plaintiff of rights secured by the constitution or federal statutes. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1037 (9th Cir. 1991).
1. First Amendment Violation
Plaintiff's alleges that she was deprived of her First Amendment rights because she was retaliated against for making complaints regarding sexual harassment and other civil rights violations. (Pl.'s Second Am. Compl. at ¶¶ 133, 135). When an employer wrongfully retaliates against an employee for speech protected by the First Amendment, the employer has violated § 1983. Sanchez, 936 F.2d at 1037. In order to state a claim against a government employer for a violation of the First Amendment, plaintiff must show that (1) she engaged in protected speech; (2) the employer took adverse employment action; and (3) her speech was the substantial or motivating factor for the adverse employment action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003).
"An employee's speech is protected under the First Amendment if it addresses 'a matter of legitimate public concern'". Id. (quoting Pickering v. Bd. of Educ., 391 US 563, 571 (1968)). The Ninth Circuit has defined speech of public concern as:
[S]peech 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. "This type of speech merits the highest degree of first amendment protection."McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (citations omitted).
Moreover, plaintiff must show that she was subjected to adverse employment action. A government act of retaliation need not be severe or of a certain kind. Coszalter, 320 F. 3d at 975. Even minor acts can infringe on an employee's First Amendment rights if they have an impermissible chilling effect. Id. If plaintiff "can establish that the actions taken by the defendants were 'reasonably likely to deter' [her] from engaging in protected activity under the First Amendment, [she] will have established a valid claim under § 1983." Id. at 976.
Finally, plaintiff must establish that the protected speech was a substantial or motivating factor for such adverse action. Id. at 977. A plaintiff may establish this element in three ways. First, plaintiff may introduce evidence relating to "the proximity in time between the protected action and allegedly adverse employment action" from which a jury could infer that the action was retaliatory in nature. Id. (citations omitted). Second, plaintiff may introduce evidence that her "employer expressed opposition" to her speech. Id. Third, plaintiff may introduce evidence that her "employer's proffered explanations for the adverse employment action were false and pre-textual."Id.
(a) Defendants Mannel, Whiteman, Bixby, and Chapman
Defendants Mannel, Whiteman, Bixby, and Chapman argue that plaintiff has failed to state a claim under § 1983 because her allegations of constitutional deprivation rely entirely on conclusory allegations of law and unwarranted inferences.
Plaintiff argues that her speech is protected because she made statements concerning potential civil rights violations. Plaintiff alleges she made statements to defendants concerning allegedly false sexual harassment claims against her. (Pl.'s Second Am. Compl. at ¶¶ 40, 44). Plaintiff also alleges that she made statements to the defendants regarding her refusal to take discriminatory action against Mr. Snitkin and rescind his job offer. (Id. at ¶¶ 46-47 and Exs. 8-9). Information regarding potential civil rights violations by the County and its officials is a matter of public concern. Coszalter, 320 F.3d at 973. Therefore, plaintiff has alleged facts sufficient to establish her speech is protected under the First Amendment.
Plaintiff also alleges that she was subjected to adverse employment action as a result of these statements. Plaintiff alleges that she was (1) subjected to an intolerable and abusive working environment, (2) subjected to defamatory statements regarding her professionalism and management of CPS, (3) stripped of her control of CPS, and (4) denied health care benefits while on disability leave. (Pl.'s Second Am. Compl. at ¶¶ 48, 51, 56, 57, 61, 64, 67, 68). Plaintiff's allegations are sufficient to demonstrate adverse employment action.
Finally, plaintiff alleges facts to support the inference that plaintiff's statements were a substantial or motivating factor for the adverse employment action. Plaintiff first expressed her concerns regarding possible civil rights violations in January 2004, and continued to do so through March 2004. (Pl.'s Second Am. Compl. ¶¶ 40, 44, 47, 51). Plaintiff alleges that the adverse employment action began in February or March 2004. (Pl.'s Second Am. Compl. ¶ 48). The proximity in time between plaintiff's initial statements concerning potential civil rights violations and the commencement of adverse employment action is so close that a jury could infer that plaintiff's statements were a substantial or motivating factor for such adverse action.
Accepting plaintiff's allegations as true, plaintiff has set forth sufficient facts to establish a valid claim under § 1983 for violation of her First Amendment rights against the individual defendants Mannel, Whiteman, Bixby, and Chapman. Therefore, defendants Mannel, Bixby, Whiteman, and Chapman's motion to dismiss plaintiff's claim for a First Amendment violation under 42 U.S.C. § 1983 is DENIED.
(b) Defendant County
Defendant County contends that plaintiff fails to set forth facts to support municipal liability under Monell v. Dept. of Social Services, 436 U.S. 658 (1978). To establish municipal liability, plaintiff must allege one of the following factual scenarios: (1) that a government employee committed the alleged violation under a formal government policy, practice, or custom which is the "standard operating procedure" of the government entity; (2) that the individual committing the constitutional tort is an official with "final policy-making authority;" or (3) "that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).
Plaintiff alleges that the customs, practices, and policies of the County violated her free speech and due process rights. (Pl.'s Second Am. Compl. at ¶ 135). Specifically, she alleges that the customs, practices, and policies of the County are deliberately indifferent to the rights of persons bringing forth civil rights concerns. (Id.) Taking all of the evidence and considering it in the light most favorable to plaintiff, the court can reasonably infer that plaintiff intends to prove that the individual defendants committed the alleged violations under a formal policy, custom, or practice of the County. Accordingly, defendant County's motion to dismiss plaintiff's claim on the basis of failure to properly allege liability under Monell is DENIED.
(c) Defendant Margolies
Defendant Margolies argues that plaintiff has failed to allege facts sufficient to set forth a valid claim against her under § 1983 for violation of her First Amendment rights. Plaintiff failed to specifically allege that defendant Margolies acted under color of law. However, plaintiff does allege that at all times defendant Margolies was acting within the course and scope of her employment with the County. (Pl.'s Second Am. Compl. at ¶ 14). Drawing every reasonable inference in the light most favorable to the plaintiff, plaintiff has sufficiently alleged facts to support her claim that defendant Margolies was acting under color of law.
Plaintiff alleges that she complained to defendant Margolies about the allegedly false sexual harassment claims lodged against plaintiff and the discriminatory conduct taken against Mr. Snitkin. (Pl.'s Second Am. Compl. ¶¶ 40-47). Plaintiff asserts that defendant Margolies failed to take action regarding the false sexual harassment claims against plaintiff and ordered plaintiff to rescind the job offer to Mr. Snitkin. (Id. at ¶¶ 43, 46). Plaintiff claims that as a result of defendant Margolies' action and inaction, she was subjected to a hostile work environment. (Id. at ¶¶ 48, 135); See also Coszalter, 320 F.3d at 976-977 (considering factors such as repeated and ongoing verbal harassment and humiliation, withholding of customary public recognition, and an unpleasant work assignment in finding that plaintiff had established a triable issue of fact regarding adverse employment action). Defendant Margolies' action and inaction occurred within weeks of plaintiff's statements. (Id. at ¶¶ 40-46). Therefore, the proximity in time between plaintiff's statements and defendant Margolies' conduct support an inference that plaintiff's statements were a substantial or motivating factor for the adverse employment action. Accordingly, defendant Margolies' motion to dismiss plaintiff's claim for a First Amendment violation pursuant to 42 U.S.C. § 1983 is DENIED.
2. Due Process Violation
Defendants County, Mannel, Bixby, Whiteman, Chapman, and Margolies argue that plaintiff's due process claim fails because plaintiff failed to establish that she has a property interest in her continued employment. "The Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). Therefore, the due process guarantees of the Fourteenth Amendment are only implicated when a constitutionally protected property or liberty interest is at stake. Sanchez v. City of Santa Ana, 915 F.2d 424, 428 (9th Cir. 1990) (citations omitted). Property interests are not created by the constitution.Id. (citing Bd. of Regents v. Roth, 408 U.S. 564 (1972)). Rather they are created "by existing rules or understandings that stem from an independent source such as state law." Id.
The California Civil Service Act, Cal. Gov't Code § 18500, et seq., provides that an employee who attains permanent status has a statutory right to continued employment. Duncan v. Dep't of Personnel Admin., 77 Cal. App. 4th 1166, 1175 (2000) (citing Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975)). This statutory right constitutes a legitimate claim of entitlement to continued government employment requiring compliance with procedural due process. Id. Permanent status is achieved when an employee, who is lawfully retained, completes the requisite probationary period. Cal. Gov't Code § 18528 (West 2006).
It is unclear from plaintiff's second amended complaint if she achieved the status of a permanent employee under the California Civil Service Act prior to taking leave on June 1, 2004. Plaintiff has not pled any facts that establish the level of service she attained at the time of her leave. Because plaintiff has failed to plead facts to establish she attained permanent employee status, plaintiff has not set forth sufficient facts to establish that she has a property interest in her continued employment. Accordingly, defendants' motions to dismiss plaintiff's due process claim are GRANTED.
D. Plaintiff's Request for Leave to Amend
Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay."Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
Plaintiff requested leave to amend her complaint to add claims of sexual discrimination pursuant to Title VII, 42 U.S.C. § 2000e-2(a)(1), and discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12100 et seq. (Pl.'s P. A. in Supp. of Mot. to Am. at 3). Defendants contend that granting plaintiff's request is futile because plaintiff failed to timely file a charge of discrimination with the EEOC. A plaintiff must file a timely charge of discrimination with the EEOC as a prerequisite to maintaining a Title VII or ADA action. 42 U.S.C. §§ 2000e- 5, 12117(a) (West 2006). A complainant is required to file a charge with the EEOC within 180 days of the last act of alleged discrimination, unless the complainant initially institutes proceedings with a state or local agency, in which case the EEOC charge must be filed within 300 days. Id.
Plaintiff alleges that she filed her charge of discrimination with the DFEH, a state agency, and thereafter filed her charge of discrimination with the EEOC within the requisite 300-day period. (Pl.'s Second Am. Compl. at ¶¶ 72-74). Therefore, because plaintiff alleges that she timely filed her claims with the EEOC, plaintiff's claims are not futile. Accordingly, plaintiff's motion requesting leave to amend to add federal claims of discrimination and retaliation is GRANTED.
In addition, in her Opposition to defendants' Motion to Dismiss, plaintiff requested leave to amend her claim of libel to a claim for slander. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 16). Plaintiff has alleged sufficient facts in her second amended complaint to support a claim for slander. (Pl.'s Second Am. Compl. at ¶¶ 56, 57, 59, 60). Therefore, plaintiff's request for leave to amend her libel claim to slander is GRANTED.
In her opposition, plaintiff requests leave to amend if the court finds that the pleadings were deficient. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 34). Because there is no indication that plaintiff's amendment is sought in bad faith or is futile, and because plaintiff's case is at the early stages of litigation, plaintiff is granted leave to amend the complaint to correct the deficiencies found in the pleadings. Plaintiff may not amend her complaint where the court has granted defendants' motions to dismiss with prejudice because amendment of these claims would be futile.
CONCLUSION
Based on the foregoing analysis, the court makes the following orders:
1. Defendants Pyle, Keifer, Dahle, and Hanson's motion to dismiss all claims is GRANTED.
2. Defendant Crosby's motion to dismiss is:
(a) GRANTED with prejudice as to plaintiff's fraud claim;
(b) GRANTED with prejudice as to plaintiff's intentional infliction of emotional distress claim; and
(c) GRANTED as to plaintiff's civil conspiracy claim.
3. Defendant Margolies' motion to dismiss is:
(a) GRANTED with prejudice as to plaintiff's fraud claim;
(b) GRANTED with prejudice as to plaintiff's intentional infliction of emotional distress claim;
(c) GRANTED as to plaintiff's civil conspiracy claim;
(d) DENIED as to plaintiff's claim of a First Amendment violation under 42 U.S.C. § 1983; and
(e) GRANTED as to plaintiff's claim of a Due Process violation under 42 U.S.C. § 1983.
4. Defendants County, Mannel, Bixby, Whiteman, and Chapman's motion to dismiss is:
(a) GRANTED with prejudice as to plaintiff's fraud claim;
(b) GRANTED with prejudice as to plaintiff's intentional infliction of emotional distress claim;
(c) GRANTED as to plaintiff's libel claim;
(d) GRANTED as to plaintiff's civil conspiracy claim;
(e) GRANTED with prejudice as to plaintiff's tortious interference with contractual relations;
(f) GRANTED as to plaintiff's claims of sexual orientation harassment and retaliation in violation of FEHA;
(g) DENIED as to plaintiff's claim of a First Amendment violation under 42 U.S.C. § 1983; and
(h) GRANTED as to plaintiff's claim of a Due Process violation under 42 U.S.C. § 1983.
Plaintiff's motion for leave to amend is GRANTED. Plaintiff is granted twenty (20) days from the date of this order to file a third amended complaint in accordance with this order. Defendants are granted thirty (30) days from the date of service of plaintiff's third amended complaint to file a response thereto.
IT IS SO ORDERED.