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December 5, 1997

SYLVIA J. WASSON, an individual, Plaintiff,

The opinion of the court was delivered by: ORRICK


 In this action, plaintiff Sylvia J. Wasson ("Wasson") brings a large assortment of federal and state constitutional and common law claims against various defendants associated with the Sonoma County Junior College District ("District"). Wasson's claims are for acts related to defendants' attempt to terminate her for distributing anonymous letters critical of President Robert F. Agrella ("Argella") of Santa Rosa Junior College. Defendants now move to dismiss all claims. Defendants also move to disqualify Wasson's counsel because an attorney now associated with Wasson's counsel once represented Agrella and his wife during their divorce. For the reasons hereinafter set forth, the motion to dismiss is granted in part, and denied in part. The motion to disqualify is denied.


 The following statement of facts is summarized from Wasson's complaint. Wasson has been an employee of the District as an instructor or administrator at Santa Rosa Junior College for twenty-two years. The District is a public school district in Sonoma County, California. Defendant Governing Board of the Sonoma County Junior College District ("Governing Board") is responsible for the policies, practices and customs of the District, including the dismissal of faculty. Defendant Agrella is President of the District. Defendant James Mitchell ("Mitchell") is Personnel Director of the District. Defendant John Roberts ("Roberts") is Vice President of Business Services for the District.

 During the 1992-93 and 1993-94 school years, an unspecified dispute arose between Wasson and the District, which was resolved by a settlement in April 1994. In accordance with the terms of the settlement agreement, Wasson resigned as an administrator and returned to full-time classroom teaching. The District agreed to "make all future decisions with respect to WASSON's employment with DISTRICT on a good faith basis without regard to any of the events that led to this agreement." (Compl. P 10 and Ex. A.)

 Wasson continued to teach full time until January 14, 1997, when the Governing Board issued a "Statement of Decision to Dismiss" Wasson from her teaching position. The decision to dismiss was based on Wasson's alleged "evident unfitness for service." (Id. P 12 and Ex. L.) The Statement of Charges attached to the Governing Board's Notice of Decision to Dismiss ("Notice") alleged that Wasson was responsible for preparing and distributing an anonymous flier and five anonymous letters (collectively "the letters"), all of which were critical of Agrella, his administration, and the Governing Board. The letters were circulated at various times between August 1995 and October 1996. Wasson's alleged preparation of the letters is the sole ground listed in the Statement of Charges for Wasson's dismissal. Wasson contends that she is not the author or disseminator of the letters. (Id. P 33.) Wasson also contends that many of the allegations in the letters were true, and that the Governing Board failed to properly investigate the truth of any of the allegations in the anonymous letters before deciding to terminate her.

 In the spring of 1996, after Agrella advised the Governing Board of his conclusion that the letters were authored by a District employee, the Governing Board conducted an investigation. Agrella identified three individuals who he believed might be the author of the letters. During the course of the investigation, Agrella authorized Mitchell to obtain materials from confidential personnel files, including Wasson's file, to be examined as part of the investigation. The Governing Board's Personnel Files and Confidentiality Policy provides that "all personnel files will be considered confidential and will not be available to persons other than the employee and those authorized on a 'need-to-know' basis by the Superintendent/President." (Id. P 22 and Ex. I.) The contract between the All Faculty Association and the District also provides that "the contents of all personnel files shall be kept in the strictest confidence." (Id. P 23, and Ex. J at 72, P 20.1B.)

 In late April 1996, the writings and documents from the personnel files were delivered to document examiner Patricia Fisher, who reviewed the documents and formed the opinion that the handwriting on one envelope and the prose style of the anonymous letters were that of Wasson. Fisher then requested additional exemplars of Wasson's writing, including those obtainable from computer fonts, typewriters and photocopiers.

 Agrella then requested the Chief of Campus Police, Terry Stewart, to identify the location of the computer printers, typewriters and photocopiers, which might have been available for use by Wasson. In early May 1996, forty-nine machines in thirteen different locations were sampled, and in at least eleven instances documents were retrieved and printed that had personal content. The District's Computer and Communications Technology Use Policy provides that "programs and files are confidential unless they have explicitly been made available to other authorized individuals." (Id. P 27 and Ex. K at 2, P 7.)

 Wasson first received notice of the Governing Board's intent to dismiss her when Stewart confronted her in her driveway at home on January 14, 1997 by positioning his unmarked vehicle directly behind her vehicle, effectively blocking her in her garage. Wasson was blinded by the headlights of Stewart's vehicle, was unable to identify the occupant of the vehicle, and was fearful of being attacked in her garage. Stewart, without exiting his vehicle, rolled down his window, identified himself, and handed Wasson a manila envelope containing the Governing Board's Notice.

 Wasson contends that she was not given an opportunity for a pretermination hearing or to have the charges against her heard in open session upon twenty-four hours notice, as is allegedly provided for under the Brown Act. Cal. Gov't Code § 54957. After being removed from the classroom, Wasson sought a temporary restraining order ("TRO") in the Superior Court of Sonoma County to enjoin the District from terminating her. The TRO was granted with the condition that Wasson be placed on paid administrative leave pending a hearing on whether a preliminary injunction should be granted.

 On March 27, 1997, the District withdrew the charges against Wasson, without prejudice. Wasson contends that this withdrawal of charges without prejudice allows the District to reinstate the identical charges against her at any time within the next four years, which is a threat that curtails her employment rights during this period. In light of the District's withdrawal of the charges, and Wasson's reinstatement to her full-time teaching position, Wasson dismissed her state court action, without prejudice, on May 7, 1997.

 On March 25, 1997, Agrella issued a letter to the college community in which he and the Governing Board acknowledged that the investigation had proven destructive to the college and its faculty, staff and administrators. Agrella labeled the letters as "hate mail." Agrella issued a public apology to the individuals who were identified as being part of the handwriting investigation. He acknowledged that personnel information was expected to be treated confidentially and that access to such areas should be done openly, and not in a clandestine manner. (Compl. P 36 and Ex. M.)

 On March 17, 1997, the Governing Board hired attorney Michael O'Donnell to complete a review of the investigation of Wasson. A report entitled "Report On Investigation Into Issues Surrounding Dismissal (Now Withdrawn) Against Dr. Sylvia Wasson" ("Report") was released to the public on April 11, 1997, allegedly as part of the Governing Board's ongoing campaign to defame, vilify and intimidate Wasson. (Compl. P 37.) A section of the Report discussing "Other Harassment of Dr. Agrella" allegedly accused Wasson, directly and by innuendo, of carrying out a harassment campaign against Agrella in 1995 and 1996, which included numerous abusive and harassing telephone messages, eavesdropping, forgery, and vandalism to Agrella's personal vehicle. The Report accused Wasson of being the author of the letters, and stated that the Governing Board concluded that Wasson was of unfit moral character, lacked emotional stability, and was unfit to continue as an employee of the District. The Report was widely distributed and republished to faculty, administration, staff and the community at large in Sonoma County. The Report allegedly has caused harm to Wasson's professional reputation and standing within the academic community and the community at large.

 The Report was also released by the District to the Chronicle of Higher Education, a preeminent national academic publication. In a story dated June 6, 1997, certain of the Report's allegedly libelous allegations against Wasson were republished, allegedly causing damage to Wasson's professional reputation and academic employment on a national scale.


 Wasson asserts a potpourri of federal claims, pursuant to 42 U.S.C. § 1983, and pendent state claims against the defendants, including the following:

 1. Her dismissal because of defendants' incorrect belief that she authored the letters violated her right to exercise free speech as guaranteed by the First Amendment of the United States Constitution and Article I, section 2 of the California Constitution.

 2. Her dismissal without formal notice of any charges against her and without an opportunity to present her side of the matter prior to dismissal violated her property interest in employment and her liberty interest in her good name, without due process, in violation of the Fourteenth Amendment of the United States Constitution, and Article I, section 7 of the California Constitution.

 3. The retrieval and dissemination of documents from her personnel file and her computer constituted an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution, and Article I, section 13 of the California Constitution.

 4. This allegedly unlawful search and seizure constituted an invasion of privacy in violation of the Ninth and Fourteenth Amendments of the United States Constitution, and Article I, section 1 of the California Constitution, and state common law.

 5. Claims for defamation and false light publicity based upon defendants' publication of false statements about her.

 6. Claims for breach of contract, and tortious breach of the covenant of good faith and fair dealing, for breach of the provision in the parties' 1994 settlement agreement that all future decisions with respect to Wasson's employment would be made on a good faith basis.

 7. Claims for negligent and intentional infliction of emotional distress.


 At the outset, defendants raise the important threshold question whether all claims against all of the defendants are barred by the Eleventh Amendment of the United States Constitution. The Eleventh Amendment to the United States Constitution 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. The Supreme Court has interpreted the Eleventh Amendment to provide that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) (citing Employees of the Dept. of Pub. Health & Welfare, State of Missouri v. Department of Public Health & Welfare, State of Missouri, 411 U.S. 279, 280, 36 L. Ed. 2d 251, 93 S. Ct. 1614 (1973)). The Eleventh Amendment also bars all suits in federal court against state agencies or departments, regardless of the nature of the relief sought. 465 U.S. at 100. Cities and counties, however, do not enjoy Eleventh Amendment immunity. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 37, 130 L. Ed. 2d 245, 115 S. Ct. 394 (1994). Accordingly, the Court must determine whether the District is an arm of the state, or is more like a county or city.

 The Ninth Circuit has held that a court must consider the following factors in determining whether an entity is an arm of the state: (1) whether a money judgment would be satisfied out of state funds; (2) whether the entity performs central governmental functions; (3) whether the entity may sue or be sued; (4) whether the entity has the power to take property in its own name or only the name of the state; and (5) the corporate status of the entity. Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)), cert. denied, 490 U.S. 1081 (1989). The most crucial question is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury. Hayakawa, 682 F.2d at 1350.

 In Mitchell, the Ninth Circuit found that the Los Angeles Community College District was an arm of the state because its budget was made up of funds received from the state's general fund and because some of the fees charged by the district's colleges go to the state. 861 F.2d at 201. The court also noted that previous cases had determined that California state colleges and universities are considered to be state agencies. Id. The court concluded that the Los Angeles Community College District was a state agency for Eleventh Amendment purposes. Id.; see also Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 972 (9th Cir. 1994) (citing Mitchell as holding that community college districts are dependent instrumentalities of the state of California, and finding that the San Francisco Community College District was a state agency with Eleventh Amendment immunity); Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251-54 (9th Cir. 1992) (concluding, after exhaustive analysis, that California public school districts are immune from suits in federal court under the Eleventh Amendment).

 Both parties acknowledge that the District is a California community college district. There is nothing in Mitchell or Cerrato to suggest that individual community college districts in California might be treated differently for purposes of the Eleventh Amendment. Although Wasson provides detailed arguments as to why the Court should not follow Mitchell, those arguments apply generally to all California community colleges, and are better made to the Ninth Circuit en banc. This Court is bound to follow Mitchell and Cerrato and finds that the District is a state agency for purposes of the Eleventh Amendment. Accordingly, all claims against the District and the Governing Board are dismissed, without prejudice to refiling in state court.


 The Court next turns to the claims against the individual defendants. To determine whether a federal suit against a state official is barred by the Eleventh Amendment, the Court must look to whether the official is sued in his official or individual capacity.


 The Eleventh Amendment does not bar federal court suits against a state officer in his individual capacity, regardless of the relief sought. Scheuer v. Rhodes, 416 U.S. 232, 238, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Ashker v. California Dept. of Corrections, 112 F.3d 392, 394 (9th Cir. 1997), (citing Pena v. Gardner, 976 F.2d 469, 472-74 (9th Cir. 1992)), cert. denied, 118 S. Ct. 168 (1997). The Court determines whether an official is sued in his official capacity or in his individual capacity by "reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Id. at 395 (quoting Hafer v. Melo, 502 U.S. 21, 26, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991)).

 Here, Agrella, Mitchell and Roberts are all sued in both their individual and official capacities. Defendants do not move to dismiss the claims against the individual defendants in their individual capacities on the basis of Eleventh Amendment immunity.


 Federal court suits against state officials in their official capacities may or may not be barred by the Eleventh Amendment, depending upon the relief sought and whether the suit is brought under federal or state law.


 When a plaintiff sues a state official in his or her official capacity for a violation of federal constitutional or statutory law, the federal court may award an injunction governing the official's future conduct, but may not award retroactive monetary relief. Pennhurst, 465 U.S. at 102-03 (citing Edelman v. Jordan, 415 U.S. 651, 666-67, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) and Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908)). Permitting prospective injunctive relief against state officials for violations of federal law reconciles the competing interests of (1) promoting the supremacy of federal law and (2) accommodating the constitutional immunity of the States. 465 U.S. at 105-06. Wasson asserts numerous claims under 42 U.S.C. § 1983 against the individual defendants seeking damages and injunctive relief. A state official is not a person for purposes of § 1983 and may not be sued under § 1983 in his official capacity for damages, although he may be sued for injunctive relief. Will v. Michigan Dept. of State Police, 4 ...

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