Duke v. City Coll. of San Francisco

445 F.Supp.3d 216

Shalamon DUKE, Plaintiff,

v.CITY COLLEGE OF SAN FRANCISCO, et al., Defendants.

Case No. 19-cv-06327-PJH

United States District Court, N.D. California.

Signed April 10, 2020

Donald Aquinas Lancaster, Jr., Lancaster Law Group, Alameda, CA, for Plaintiff.

John M. Beemer, Damon M. Thurston, Maria M. Lampasona, Rankin, Shuey, Ranucci, Mintz, Lampasona & Reynolds, Oakland, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Re: Dkt. No. 36

PHYLLIS J. HAMILTON, United States District Judge

Before the court is defendants San Francisco Community College District ("CCSF") and Chancellor Mark William Rocha's ("Rocha" and together with CCSF, "defendants") motion to dismiss. The matter is fully briefed and suitable for resolution without oral argument. Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.

BACKGROUND

On August 26, 2019, plaintiff Dr. Shalamon Duke ("Duke" or "plaintiff") filed a complaint against defendants CCSF, Rocha, and Does 1–10 in the Superior Court of the State of California, County of San Francisco, asserting fourteen causes of action. Dkt. 1, Ex. A. On October 3, 2019, defendants removed this action to federal court. Dkt. 1. On November 22, 2019, plaintiff filed a First Amended Complaint ("FAC," Dkt. 19), asserting the same fourteen causes of action against defendants as the state court complaint. This court previously granted in part and denied in part defendants' motion to dismiss the FAC. Dkt. 32. Plaintiff has since filed a Second Amended Complaint ("SAC") alleging ten causes of action: (1) negligent infliction of emotional distress ("NIED") (alleged against CCSF and Does); (2) violation of Cal. Gov. Code § 54957 (alleged against CCSF and Does); (3) intentional infliction of emotional distress ("IIED") (alleged against CCSF and Does); (4) violation of Cal. Gov. Code § 12940(h) ("FEHA Discrimination") (alleged against CCSF and Does); (5) violation of 42 U.S.C. § 1983 (alleged against CCSF, Rocha, and Does); (6) violation of 29 U.S.C. § 206 ("Equal Pay Act") (alleged against CCSF, Rocha, and Does); (7) violation of 29 U.S.C. §§ 621 – 34 ("ADEA") (alleged against CCSF and Does); (8) violation of 42 U.S.C. § 2000 et seq. ("Title VII") (alleged against CCSF and Does); (9) violation of Cal. Gov. Code § 12940(a) ("FEHA Discrimination") (alleged against CCSF and Does); and (10) violation of Cal. Gov. Code § 12940(h) ("FEHA Retaliation") (alleged against CCSF and Does). Dkt. 34.

Duke is an African American educator who served as Associate Vice Chancellor of Student Development at CCSF beginning in June 2018. SAC ¶¶ 8–9. Plaintiff's initial salary was supposed to be $172,184.67 per year, though for reasons not detailed in the SAC, CCSF started him at a lower salary. Id. ¶ 18. Plaintiff further alleges that a "Latina counterpart"—hired at the same time and the same associate vice chancellor position for which CCSF hired Duke—earned a starting salary of $193,152.18. Id.

On December 6, 2018, a state court civil complaint was filed in Los Angeles county against Duke alleging that he sexually harassed an individual while working at a former employer—a community college within the Los Angeles Community College District. Id. ¶ 19. The next day, plaintiff alleges that he contacted his superior, Vice Chancellor Trudy Walton, and informed her that litigation was pending against him in Los Angeles county. Id. ¶ 23. On December 8, 2018, CCSF placed Duke on administrative leave, which was communicated to him by the Vice Chancellor of Human Resources, Diana Gonzales. Id. ¶¶ 23–24, Ex. 7. On December 10, 2019, Gonzales, on behalf of Rocha, asked for Duke's resignation, and told plaintiff that Rocha would move to terminate him. Id. ¶ 24. As exhibits attached to the complaint detail, the impetus behind CCSF's actions against Duke was because Duke did not disclose to CCSF the existence of a pending complaint during his hiring process. Id., Exs. 7, 10. CCSF further stated that their actions derived from the failure to disclose rather than the content of the complaint, which at the time were only unproven allegations against Duke. Id., Ex. 10.

On December 11, 2018, CCSF sent a notice to Duke formally placing him on administrative leave, and on the same day, Rocha sent an email to the CCSF community stating that Duke had been "separated" from CCSF and would "not return to his duties." Id. ¶ 25. On December 12, 2018, plaintiff received a 24-hour notice of a CCSF Board of Trustee's (the "Board") meeting via his email account, but he alleges that he did not receive notice via postal mail until December 15, 2018. Id. ¶ 26. The Board meeting occurred on December 13, 2018 and as a result of that meeting, CCSF decided to terminate plaintiff's employment. Id. ¶ 27. On December 14, 2018, CCSF provided notice to Duke that it intended to terminate his employment because Duke lacked judgment and good sense by failing to notify CCSF that a complaint was pending. Id. However, plaintiff alleges no complaint was pending when Duke assumed his position at CCSF. Id.

At plaintiff's request, CCSF held a pre-disciplinary hearing on January 9, 2019. Id. ¶ 30. Duke alleges that the hearing was deficient for various reasons not relevant to this order. Id. ¶ 31. On January 23, 2019, plaintiff received a second 24-hour notice of a Board meeting, again by email and not by postal mail. Id. ¶ 32. The Board met on January 24th, 2019, and unanimously voted to terminate Duke's employment. Id. On January 25, 2019, Rocha sent plaintiff notice of his termination. Id. ¶ 29.

Prior to CCSF's termination of Duke's employment, plaintiff had requested leave for the birth of his daughter, which had been granted. Id. ¶ 34. However, he was terminated shortly before he was scheduled to take his leave. Id. On June 14, 2019, Duke sent a California Government Tort Claim to CCSF, to which CCSF did not respond. Id. ¶ 35. On July 2, 2019, Duke filed a complaint with the California Department of Fair Employment and Housing. Id. ¶ 36. Duke subsequently received right-to-sue letters. Id.

DISCUSSION

A. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013).

While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint must proffer sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558–59, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ). If dismissal is warranted, it is generally without prejudice, "unless it is clear ... that the complaint could not be saved by any amendment." In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005). "Leave to amend may also be denied for repeated failure to cure deficiencies by previous amendment." Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008).

Review is generally limited to the contents of the complaint, although the court can also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) ). The court may also consider matters that are properly the subject of judicial notice ( Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001) ), exhibits attached to the complaint ( Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) ), and documents referenced extensively in the complaint and documents that form the basis of the plaintiff's claims ( No. 84 Emp'r-Teamster Jt. Council Pension Tr. Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003) ).

B. Analysis

1. Request for Judicial Notice

Federal Rule of Evidence 201 permits a court to notice a fact if it is "not subject to reasonable dispute." Fed. R. Evid. 201(b). A fact is "not subject to reasonable dispute" if it is "generally known," or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(1)–(2).

Defendants request the court judicially notice public records in the form of a complaint against plaintiff filed in California state court as well as documents from CCSF's website including a board agenda, board minutes, and CCSF's organizational chart. Dkt. 36-1. Plaintiff does not oppose this request.

The court may judicially notice court documents already in the public record and filed in other courts. Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002). Thus, the state court complaint is...