Romero v. Tucson Unified Sch. Dist.

Augustine F Romero, Plaintiff, v. Tucson Unified School District, Defendant.

No. CV-20-00507-TUC-SHR (DTF)

United States District Court, D. Arizona

April 22, 2022

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...