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November 10, 1997


The opinion of the court was delivered by: JAMES

 Before the Court is the motion of Defendants San Francisco Unified School District, Jones Wong, Delores Lemon-Thomas, Mary Twegby, Roderick Hong, Cynthia LeBlanc, and Diane Lucas for judgment on the pleadings, or in the alternative, for summary judgment. As Defendant Larry Rowell appears to have been inadvertently omitted from Defendants' papers, the Court sua sponte includes him in Defendants' motion. After careful consideration of the parties' briefs, relevant statutory authority and case law, and Good Cause Appearing, Defendants' motion is GRANTED IN PART AND DENIED IN PART for the reasons set forth below.


 Gwendolyn Carmen ("Plaintiff") is an African-American female currently employed as a day-to-day substitute teacher by the San Francisco Unified School District ("SFUSD"). Since 1992, Plaintiff has attempted unsuccessfully to become a permanent employee by applying for various positions.

 On April 26, 1993, Plaintiff filed a discrimination suit against SFUSD and Jones Wong, Delores Lemon-Thomas, Mary Twegby, Roderick Hong, Cynthia LeBlanc, Diane Lucas and Larry Rowell, employees of SFUSD ("individual defendants"). Causes of action were also alleged against Plaintiff's union, United Educators of San Francisco ("Union"). Plaintiff's fourth amended complaint alleges race and age discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. sections 1981, 1983, 1985, and 1986, and the Age Discrimination in Employment Act ("ADEA") by all Defendants; violation of a consent decree by SFUSD; breach of the collective bargaining agreement by SFUSD; defamation in violation of civil rights against Lemon-Thomas, Gehlen and Lucas; and intentional infliction of emotional distress by all Defendants. Plaintiff's claims against the Union and its agents (Mary Ahyte, Marie Gehlen and Kent Mitchell) were dismissed by the Court's order granting the Union's Motion for Summary Judgment on January 31, 1997.

 Plaintiff alleges that SFUSD and the individual defendants refused to promote or permanently employ her because of her race and age, and that the individual defendants implemented discriminatory policies on behalf of SFUSD. She seeks monetary damages, punitive damages, declaratory and injunctive relief as well as attorney's fees and costs for harm suffered as a result of Defendants' actions.

 On April 4, 1997, SFUSD and the individual defendants filed a motion for judgment on the pleadings, or in the alternative, summary judgment on Plaintiff's remaining causes of action. If factual matters outside the pleadings are submitted in connection with a motion for judgment on the pleadings, and are not excluded by the court, the motion must be treated as one for summary judgment under Federal Rule of Civil Procedure 56, and all parties must be given an opportunity to present all material pertinent to the motion. Fed. R. Civ. Pro. 12(c); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1548 (9th Cir. 1989). However, before summary judgment may be entered against a party, "that party must be afforded both notice that the motion is pending and an adequate opportunity to respond. Implicit in the 'opportunity to respond' is the requirement that sufficient time be afforded for discovery necessary to develop facts essential to justify [a party's] opposition to the motion." Portland Retail Druggists Ass'n v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th Cir. 1981) (citations and internal quotation marks omitted).

 As discovery was stayed in this action, the Court finds that a motion for summary judgment would not be appropriate at this time. Therefore, the Court addresses Defendants' Motion for Judgment on the Pleadings and restricts its review to Plaintiff's Fourth Amended Complaint and the facts alleged therein. See Fed. R. Civ. Pro. 12(c). Although Defendants offered extrinsic evidence in conjunction with their motion in the alternative for summary judgment, that evidence was excluded by the Court and was not considered in connection with Defendants' Motion for Judgment on the Pleadings.


 Federal Rule of Civil Procedure 12(c) provides as follows:

After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. If on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 Fed. R. Civ. Pro. 12(c) (West 1997). A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is directed at the legal sufficiency of a party's allegations. Religious Tech. Ctr. v. Netcom On-Line Comm. Servs., Inc., 907 F. Supp. 1361, 1381 (N.D. Cal. 1995). "A judgment on the pleadings is proper when there are no issues of material fact, and the moving party is entitled to judgment as a matter of law." Id. (citations omitted).

 "Although Rule 12(c) differs in some particulars from Rule 12(b)(6), the standard applied is virtually identical." Moran v. Peralta Community College Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993) (citing Miller v. Indiana Hosp., 562 F. Supp. 1259, 1266 (W.D. Pa. 1983)). The Ninth Circuit has reviewed the standard for a motion to dismiss for failure to state a claim upon which relief can be granted:

[A] complaint should not be dismissed under Fed. R. Civ. Pro. 12(b)(6) "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable theory.

 Moran, 825 F. Supp. at 893 (citation omitted) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).

 "In ruling on a motion for judgment on the pleadings, district courts must accept all material allegations of fact alleged in the complaint as true, and resolve all doubts in favor of the non-moving party." Religious Tech. Ctr., 907 F. Supp. at 1381; Moran, 825 F. Supp. at 893; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). "The court need not accept as true conclusory allegations or legal characterizations." Religious Tech. Ctr., 907 F. Supp. at 1381 (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981)).

 To dismiss, "it must appear to a certainty that the Plaintiff would not be entitled to relief under any set of facts that could be proved." McGlinchy, 845 F.2d at 810. "Although Rule 12(c) does not expressly authorize 'partial' judgments, neither does it bar them, and it is common practice to apply Rule 12(c) to individual causes of action." Moran, 825 F. Supp. at 893. "Courts have discretion to grant leave to amend in conjunction with 12(c) motions, and may dismiss causes of action rather than grant judgment." Id. (citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979)).

 In light of this standard, this Court now turns to the merits of Defendants' Motion.


 Rule 12(c) motions may not be brought until the pleadings are closed. Fed R. Civ. P. 12(c) (West 1997). Generally, this means that a Rule 12(c) motion must await the answers of all defendants. Moran, 825 F. Supp. at 893. In this case, as Defendants have answered Plaintiff's Fourth Amended Complaint, the Court finds that Defendants' Rule 12(c) motion is timely.

 Plaintiff's Fourth Amended Complaint alleges fifteen causes of action against various defendants. Summary judgment for the Union and its representatives on all causes of action alleged against these defendants was entered on January 31, 1997. Fourteen causes of action remain. Rather than treat each cause of action separately, the Court's analysis will deal first with claims arguably barred by the Eleventh Amendment, then state law claims, the consent decree, breach of the collective bargaining agreement, declaratory relief and injunctive relief.


 The Eleventh Amendment bars suits brought against States in federal court when the State has not waived its sovereign immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 1122, 134 L. Ed. 2d 252 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 U.S. Const. amend. XI. This jurisdictional limitation recognizes that the State retain certain attributes, including sovereign immunity, although they are part of the federal structure. See, e.g., Seminole Tribe, 116 S. Ct. at 1122; Pennhurst, 465 U.S. 89, 98, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). In the absence of consent by the State, an action may only be brought against the State if Congress has expressly abrogated the States' sovereign immunity. See Pennhurst, 465 U.S. at 100.

 Although the Eleventh Amendment speaks to suits brought by citizens of other States or of foreign states, the immunity extends to suits brought against a State by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995) (affirming dismissal of Section 1983 claim against California school superintendent on Eleventh Amendment grounds). In some instances, Eleventh Amendment immunity may also apply to officials of the State, because "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." See Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985); accord Edelman, 415 U.S. at 663. Because Plaintiff's suit names an entity of the State of California as a defendant, namely SFUSD and its officials, certain of her claims are barred by the Eleventh Amendment. These claims are discussed further infra in Parts II and III.



 Because States are immune from suit under the Eleventh Amendment, suits against State agencies in which a judgment would be satisfied out of public funds are also prohibited. See, e.g., Quern v. Jordan, 440 U.S. 332, 337, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979) ("[A] suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.") School districts in California are considered to be state agencies for Eleventh Amendment purposes. See Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251 (9th Cir. 1992), cert. denied, 507 U.S. 919, 122 L. Ed. 2d 674, 113 S. Ct. 1280 (1993) (applying a multi-factor balancing test to determine whether agency is a state actor for Eleventh Amendment purposes, originally set forth in Mitchell v. Los Angeles Community College Dist., 861 F.2d 198 (9th Cir. 1988), cert. denied, 490 U.S. 1081, 109 S. Ct. 2102, 104 L. Ed. 2d 663 (1989)); cf. Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 972 (9th Cir. 1994) (community college districts are dependent instrumentalities of the State of California, entitled to Eleventh Amendment immunity). As SFUSD has not consented to suit in this case, Plaintiff's claims for all but prospective (i.e., injunctive) relief are barred unless Congress has ...

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