Opinion
CV-20-00507-TUC-SHR (DTF)
04-22-2022
Augustine F Romero, Plaintiff, v. Tucson Unified School District, Defendant.
REPORT AND RECOMMENDATION
HONORABLE D THOMAS FERRARO UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant's Partial Motion to Dismiss Second Amended Complaint. (Doc. 46.) The motion has been fully briefed. (Docs. 51, 53.) This matter has been referred to United States Magistrate Judge D. Thomas Ferraro for report and recommendation. (Doc. 11.) As more fully set forth below, it is recommended that the District Court, after its independent review, deny the motion to dismiss.
BACKGROUND
Plaintiff filed his complaint on November 18, 2020. (Doc. 1.) Defendant moved to partially dismiss it. (Doc. 13.) This Court filed a report and recommendation recommending the District Court dismiss counts Two through Four with leave to amend. (Doc. 18.) The District Court adopted the report and recommendation and granted Plaintiff an opportunity to amend his complaint. (Doc. 19.) On July 23, 2021, Plaintiff filed his First Amended Complaint. (Doc. 25.) Defendant again moved to partially dismiss (Doc. 27) and Plaintiff filed a motion to amend (Doc. 38.) This Court granted the motion to amend. (Doc. 42.) On November 8, 2021, Plaintiff filed his Second Amended Complaint (SAC). (Doc. 44.) Defendant once again moves to dismiss counts Two through Four. (Doc. 46.)
Second Amended Complaint (SAC)
The following facts are taken from Plaintiff's SAC. For this motion, the Court takes these facts as true and makes all reasonably inferences in favor of Plaintiff. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998).
Plaintiff Augustine Romero, PhD, is of Hispanic and Yaqui descent. (Doc. 44 ¶ 6.) From January 8, 1996, to June 30, 2018, Defendant Tucson Unified School District (TUSD or Defendant) employed Plaintiff. Id. ¶ 9. In 2014 to 2018, he was the Principal of Pueblo High School. Id. ¶ 11. During his tenure, Pueblo High School obtained many academic improvements, and Plaintiff's evaluations showed he was highly effective and distinguished. Id. ¶¶ 12-13.
In 2016, TUSD through a few Governing Board members and Assistant Superintendent Abel Morado pursued two issues related to Plaintiff, the "Grade-Change" and "Sahuarita" issues. Id. ¶¶ 39-40, 52. The Grade-Change issue revolved around Plaintiff changing students' grades after a substitute teacher allegedly violated policy. Id. ¶ 41. The Sahuarita issue involved Plaintiff giving a "favorable" recommendation to a former Pueblo High counselor. Id. ¶ 49. TUSD Superintendent H.T. Sanchez informed the Governing Board and Plaintiff that both issues were resolved, even classifying the Grade-Change issue as a "witch hunt." Id. ¶¶ 41, 48, 61. Neither the Board members nor Dr. Morado dropped the issues. Id. ¶¶ 43, 52, 54, 57, 69. DeConcini, McDonald, Yetwin and Lacy even investigated the Grade-Change issue, after which one of the Board members took the issue to the state. Id. ¶ 43. In 2017, the Arizona Department of Education informed Plaintiff that it was investigating the Grade-Change issue after two complaints, one from Board Member Hicks and one from a teacher in the Culturally Relevant Curriculum. Id. ¶ 56.
In January 2017, Plaintiff informed Dr. Morado of his belief that Dr. Morado was acting with racial and retaliatory animus in an attempt to appease the few Board members. Id. ¶ 58. After this conversation, Plaintiff felt there was no alternative, so he submitted his "Notice of Intent to Separate." Id. ¶¶ 59-60. Later, he rescinded this notice based on a conversation with Dr. Sanchez, in which he told Dr. Sanchez that he believed the Governing Board and Dr. Morado were discriminating against him based on his race and his advocacy on behalf of Hispanics. Id. ¶¶ 61-63. In April 2017, Dr. Morado told Plaintiff that he was going to be suspended without pay for ten days because of the Sahuarita issue, the Grade-Change issue, failing to report a broken window and sending an email to Pueblo High staff stating that Plaintiff was being forced out based on racial discrimination. Id. ¶¶ 69, 72. Plaintiff appealed, and in June 2017, Plaintiff received a two-day unpaid suspension. Id. ¶ 77.
In September 2017, a Board member requested that Plaintiff be removed as Principal because of the Grade-Change issue. Id. ¶ 83. Legal staff for TUSD stated this would cause a legal issue. Id. In March 2018, another Board member requested data for three principals, including Plaintiff, all of which were people of color. Id. ¶ 86. On March 27, 2018, the Governing Board voted to renew Plaintiff along with 7 other principals. Id. ¶¶ 89-90. The "swing vote" explained that he had lost faith in Plaintiff's leadership but voted to renew because Plaintiff had "lawyered up." Id. ¶ 91. Then on April 6, 2018, the swing vote placed Plaintiff on the agenda for the April 10, 2018 meeting, requesting that the board rescind the renewal. Id. ¶ 93. On April 10, 2018, the majority of the board voted to not renew Plaintiff's contract. Id. ¶ 94.
Before and after the April 10, 2018 meeting, Plaintiff informed the Board members that voted to not renew his contract that he believed their decision was racially motivated. Id. ¶ 110. After the meeting, news articles quoted Plaintiff and included his belief that the board and their decision was racist. Id. ¶¶ 112-13.
In the spring and summer of 2018, Plaintiff applied for seven positions with TUSD. Id. ¶ 97. Plaintiff was as qualified or more so than the person hired for each position. Id. ¶¶ 98, 101. None of the hired individuals were Hispanic/Mexican or Yaqui. Id. ¶ 99. Plaintiff also contrasted the treatment he received to that of the principal of Cholla High. Id. ¶¶ 45-47. According to Plaintiff, in 2016, there was an untimely reporting of possible sexual abuse at Cholla High School and that no disciplinary action or follow up occurred. Id. ¶¶ 45-46. The principal of Cholla High is not of Hispanic, Mexican, or Yaqui descent and did not engage in protected activity. Id. ¶ 47.
Plaintiff filed a complaint with the Civil Rights Division of the Arizona Attorney General's Office and the United States Equal Opportunity Employment Commission (EEOC). Id. ¶ 122. The EEOC issued a notice of right to due, and Plaintiff filed this action. Id. ¶ 124.
Plaintiff brings four causes of action in his SAC. In the first cause of action, he alleges Defendant discriminated against him because of his race, color, and national origin, in violation of Title VII, 42 U.S.C. § 2000e(2) . Id. ¶¶ 132-34. In the second cause of action, he claims Defendant unlawfully retaliated against him, in violation of Title VII. Id. ¶¶ 135-37. In the third cause of action, he contends Defendant's actions constituted workplace discrimination, in violation of 42 U.S.C. § 1981. Id. ¶¶ 138-40. In the fourth cause of action, Plaintiff states Defendant retaliated against him because of his protected conduct, in violation of § 1981. Id. ¶¶ 141-43. In all counts, the alleged adverse employment action is the failure to hire Plaintiff-not the April 10, 2018 decision to not renew his contract. (Doc. 51 at 2.) Counts Two and Four include Plaintiff's complains regarding Defendant's decision to not renew his contract as protected activity. (Doc. 44 ¶¶ 110-15.)
Motion to Dismiss
Defendant moves to dismiss Counts Two through Four. (Doc. 46.) Defendant groups Counts Two and Four together as retaliation claims. Id.
First, Defendant argues that the SAC included several non-discriminatory reasons to not hire Plaintiff, the Grade-Change and Sahuarita issues. Id. at 4-6. Defendant notes that the Governing Board had already decided to not renew Plaintiff's contract based on these issues. Id. Further, Defendant contends that Plaintiff failed to allege that these reasons were pretextual. Id.
Second, Defendant also rejects any temporal proximity to the protected conduct because the SAC connected the protected conduct with the decision to not renew the contract-not the decision to hire other applicants. Id. at 6. Further, Defendant points to the lack of allegations that the persons who made the hiring decision knew of the alleged protective activity. Id.
Thus, Defendant requests that the Court dismiss Counts Two through Four.
Response
Plaintiff asserts that the SAC sufficiently alleges that the non-discriminatory reasons are pretextual without utilizing the word "pretext." (Doc. 51 at 5-8, 10-11, 15.) Additionally, Plaintiff requests the Court to take judicial notice of Exhibits One through Three based on the doctrine of incorporation: DeConcini, McDonald, Yetwin and Lacy's response to Plaintiff's EEOC charge (Exh. 1), DeConcini, McDonald, Yetwin and Lacy's Memorandum dated October 25, 2016 (Exh. 2), Letter from Dr. Sanchez dated November 11, 2016 (Exh. 3). Id. at 6, 8.
Plaintiff asserts that the Complaint sufficiently alleged that the Grade-Change issue was pretextual. Id. at 5-6. He includes some allegations that the nonrenewal was unwarranted, that he was merely following the directives of the former Assistant Superintendent, that Dr. Sanchez stated multiple times that Plaintiff followed policy, and more detail about DeConcini, McDonald, Yetwin and Lacy's investigation. Id. He specifically quoted the memorandum and stated, "I think he believed that the students in question were in fact denied the opportunity to complete the assignments and that, by allowing them to do so, he was simply providing them the opportunity that their teacher should have provided under District policy." Id. at 6 (quoting Exh. 2 at 11).
Plaintiff contends that the Complaint adequately provides facts to show that the Sahuarita issue was also pretextual. Id. at 7-8. Plaintiff describes his beliefs on the matter, a meeting with Dr. Morado, and statements from Dr. Sanchez that the issue was resolved. Id. at 7. Plaintiff similarly provides a letter from Dr. Sanchez dated November 11, 2016. Id. at 8 (quoting Exh. 3). The letter states that Dr. Sanchez considers the matter to be closed and that there was "no adverse documentation" in the employee's file at the time of his resignation. Id. (quoting Exh. 3).
Plaintiff asserts that the Grade-Change and Sahuarita issues are "unworthy of credence." Id. at 15. Further, Plaintiff requests leave to amend if the "pretext" is required in the Complaint. Id. at 16.
Plaintiff attached several exhibits for the Court to consider. (Docs. 51-1, 51-2, 51-3.) Exhibit 1 is Defendant's position statement before the Arizona Civil Rights Division. (Doc. 51-1.) This document outlines Defendant's response to Plaintiff's Charge of Discrimination. Id. It includes an October 25, 2016 memorandum attach, which is also Exhibit 2. (Compare Doc. 51-1 at 15-27 with Doc. 51-2 at 2-13.) This memorandum outlines an investigation into the Grade Change issue. Id. It concluded that Plaintiff did violate the policy and state law but recommended counseling Plaintiff, Mr. Munger, and Dr. Morado. (Doc. 51-2 at 13.) It also contains a letter from Superintendent Sanchez that he adhered to the recommendation and counseled Plaintiff. (Doc. 51-1 at 29.)
LEGAL STANDARD
A motion brought under Rule 12(b)(6), Fed. R. Civ. P., tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A complaint must have sufficient factual content such that a court can draw the "reasonable inference" that the defendant is liable for the alleged misconduct, providing "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. "On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party," Wyler Summit P'ship, 135 F.3d at 661 (citing Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)), and all reasonable inferences are drawn in favor of the nonmoving party, see Doe, 419 F.3d at 1062. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim. Iqbal, 556 U.S. at 678, 681.
Plaintiff requests the Court take judicial notice of three documents. (Doc. 51 at 6, 8.) Defendant neither contests their authenticity nor objects to the Court considering them. (Doc. 53 at 3-4.) "In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). "[A] court may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Id. Thus, the Court will take judicial notice of the attached documents.
ANALYSIS
Defendant contends that Plaintiff failed to state § 1981 claim (Count Three) or a retaliation claim under Title VII (Count Two) or § 1981 (Count Four) because his not allege that race, color, national origin, or protected activity were Defendant's but-for cause of the decision to not hire him. (Doc. 46 at 3-7.) Instead, Defendant maintains Plaintiff again includes nondiscriminatory reasons for the failure to hire him without sufficiently showing they are pretextual. Id. The Court disagrees.
Section 1981 "protects the equal right of all persons within the jurisdiction of the United States to make and enforce contracts without respect to race." Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (cleaned up). A plaintiff must allege that there is a contractual relationship under which they have rights and that the defendant impaired the relationship "on account of intentional discrimination." Astre v. McQuaid, 804 Fed.Appx. 665, 666 (9th Cir. 2020). "[A] plaintiff must demonstrate that, but for the defendant's unlawful conduct, [the] alleged injury would not have occurred." Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009, 1014 (2020). The plaintiff has the burden of showing race was the but-for cause of the injury. Id. When a "complaint identifies independent non-discriminatory reasons for" the alleged injury, the § 1981 claim is implausible. Astre, 804 Fed.Appx. at 667 (quoting FCS Advisors, LLC v. Missouri, 929 F.3d 618, 622 (8th Cir. 2019)). If nondiscriminatory reasons are presented, then the plaintiff must show that the reasons are pretextual. See White v. California, 754 Fed.Appx. 575, 576 (9th Cir. 2019); see also Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1106 (9th Cir. 2008). "A plaintiff can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer's explanation is unworthy of credence." Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004).
When considering § 1981 retaliation claims, courts often apply the same legal principles applicable in Title VII cases. Surrell, 518 F.3d at 1103, 1107-08; Harrison v. Wells Fargo Bank, 854 Fed.Appx. 123, 123-24 (9th Cir. 2021); Bosnak v. City & County of San Francisco, 776 Fed.Appx. 950, 951 (9th Cir. 2019). To allege a prima facie case of retaliation, a plaintiff must claim (1) they undertook a protected activity, (2) the employer subjected them to an adverse employment action, and (3) there is a causal link between the two events. Reynaga v. Roseburg Forest Products, 847 F.3d 678, 693 (9th Cir. 2017); see Hicks v. Netflix, Inc., 472 F.Supp.3d 763, 773-74 (C.D. Cal. 2020). Protected activity includes opposing what plaintiff reasonably believed to be violations of Title VII or § 1981. 42 U.S.C. § 2000e-3(a); Maner v. Dignity Health, 9 F.4th 1114, 1127 (9th Cir. 2021). The protected activity must be the but-for cause of the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013); Bagley v. Bel-Aire Mechanical Inc., 647 Fed.Appx. 797, 800 (9th Cir. 2016).
Under McDonnell Douglas, once a plaintiff makes out a prima facia case of retaliation, the burden shifts to the defendant to state a legitimate, non-discriminatory reason for the adverse employment action. Surrell, 518 F.3d at 1108; Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). If the defendant states such a reason, then the plaintiff "bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive." Stegall, 350 F.3d at 1066 (quoting Manatt v. Bank of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003)). This can be done by either "directly persuading the court that a discriminatory reason more likely motivated the employer[, ] or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (alteration in original) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, Plaintiff provided the Grade-Change and Sahuarita issues as nondiscriminatory reasons for the decision to not hire him. (Doc. 44 ¶¶ 39, 48, 94.) To the Sahuarita issue, Dr. Sanchez told Plaintiff multiple times that the issue was resolved id. ¶¶ 48, 61, and even wrote a letter outlining the conclusion of the inquiry, (Doc. 51-3 at 2). The former employee to whom Plaintiff provided a positive reference, had not been terminated or disciplined and there were no negative comments in the employee's file when he resigned. Id.
To the Grade-Change issue, Dr. Sanchez also told Plaintiff on multiple occasions that this matter was resolved. (Doc. 44 ¶¶ 39, 48, 61.) Dr. Sanchez characterized this issue as a "witch hunt," noting that another principal likely would have been "praised for supporting students." Id. ¶ 41. Further, the investigation conducted by the law firm DeConcini, McDonald, Yetwin, and Lacy concluded that Plaintiff "was not flouting law or policy intentionally." (Doc. 51-2 at 11.) The attorney with DeConcini, McDonald, Yetwin, and Lacy determined that Plaintiff "believed that the students in question were in fact denied the opportunity to complete the assignments and that, by allowing them to do so, he was simply providing them the opportunity that their teacher should have provided to them under District policy," and they described the steps Plaintiff took to provide only the opportunities he reasonably believed the teacher had denied these students but had provided to others without explanation. Id. at 2, 6, 11. They recommended that Plaintiff be counseled to document conversations with teachers and to take early action if a teacher might be violating District policy. Id. at 11. They also suggested counseling Dr. Morado and an investigator based on their failure to act once they were aware of the issue because that would have been the appropriate time to "counsel, direct, or reprimand" Plaintiff and "to discuss with him alternative actions." Id.
When Plaintiff was disciplined regarding these issues, he appealed and received a much less severe sanction. (Doc. 44 ¶¶ 69, 74-77.) Defendant presented the nonrenewal of Plaintiff's contract as another nondiscriminatory reason. (Doc. 46 at 4-6.) Plaintiff alleges that this was done with discriminatory purpose. (Doc. 44 ¶¶ 112-15.) Defendant also argues that Plaintiff did not argue that the hiring decisionmakers knew about the protected action. (Doc. 46 at 6.) The protected action was public and was published in media or online outlets. (Doc. 44 ¶¶ 112-14.)
Plaintiff's SAC permits the Court to draw the "reasonable inference" that the discriminatory reason more likely motivated the decision to not hire him or that the Sahuarita and Grade-Change issues are unworthy of credence. Stating a claim does not have talismanic conditions, such that this Court requires the specific word "pretext" to be in the SAC. Thus, the Court recommends finding that Plaintiff has sufficiently stated a claim in Counts Two through Four; in the alternative, the District Court may grant Plaintiff's request to amend the Second Amended Complaint.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the District Court, after its independent review, deny the partial motion to dismiss (Doc. 46) or, in the alternative, grant Plaintiff's request to amend (Doc. 51 at 16).
Pursuant to Rule 72(b)(2), Fed. R. Civ. P., any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived.