United States District Court, N.D. California
October 4, 2005.
DAVID WELLS, Plaintiff,
THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, et al., Defendants.
The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge
ORDER GRANTING, IN PART, and DENYING, IN PART, DEFENDANTS' MOTION
TO DISMISS AND MOTION TO STRIKE
Defendants move to dismiss several of Plaintiff's causes of
action and to strike Plaintiff's prayer for punitive damages.
Plaintiff opposes the motion. The matter was heard on September
30, 2005. The Court having considered all of the papers filed by
the parties and oral argument, Defendants' motion is GRANTED in
part and DENIED in part.
According to his complaint, Plaintiff David Wells was hired by Humboldt State University in September, 1980 as a track coach on
a one-year contract. Wells alleges that it was the custom and
practice of the Athletic Department routinely to renew contracts
so long as the coach was successful in inter-collegiate
competition and demonstrated skills in management, fund-raising
and interaction with the community, administration and alumni.
Wells claims he far exceeded these standards and, consequently,
his contract was renewed each year from 1981 through 2000.
In late 1998 and early 1999, Wells learned that women's sports
were disproportionately funded relative to men's sports in
violation of Title IX. At that time, Wells raised the issue with
his supervisors and suggested they equally apportion the funding
between men's and women's athletics. Despite his advocacy for
Title IX compliance, Wells received a Faculty Merit Award in
November, 2000 and his contract was renewed on January 25, 2001.
In March, 2001, because Wells raised the Title IX issue,
California State University (CSU) appointed a faculty member to
conduct an internal investigation and to report to administration
at Humboldt State University. The investigation confirmed a
violation of Title IX, yet the administration failed to respond.
On or about June 1, 2001, Wells and Humboldt State University
students submitted a Title IX grievance with the Office of Civil
Rights of the United States Department of Justice and sent a copy
of the grievance to the President of Humboldt State University.
Wells claims that, as a result, the athletic director at the
time, Swan,*fn1 resigned on or about June 15, 2001. Wells alleges
that he discovered that Swan had illegally transferred funds
within the Athletic Department to conceal his intent to deprive
women's athletics of equal funding. Furthermore, Wells alleges
that Steven Butler, Vice President of Humboldt State University,
conspired with Swan to make the transfer. Wells declares that his
own two-year investigation revealed that approximately
$270,000.00 of Athletic Department funds was unaccounted for.
Wells filed another formal complaint with the Office of Civil
Rights regarding Humboldt State University's failure to comply
with Title IX. Meanwhile, in December, 2001, Butler appointed Dan
Collen interim athletic director. Wells alleges that on June 5,
2002, Collen rated his performance generally as "unsatisfactory"
on a "Coaching Performance Evaluation" in retaliation for raising
the issue of the missing funds.
Wells states that, on or about April 15, 2003, his contract was
renewed for only ten months instead of twelve months and the
two-year budget for cross-country and men's and women's track was
reduced by $104,000.00. Wells alleges that these actions were
taken because of his complaints regarding Title IX and the
missing funds. Wells alleges that, between 2002 and 2004, the
administration repeatedly refused to account for the source and
application of Athletic Department funds. On March 5, 2004, Wells
responded by filing a complaint concerning the missing funds with
the State Auditor. That same day, Wells filed a formal complaint with the California State University Whistleblower Office
alleging that Defendants retaliated against him for reporting the
missing funds and the Title IX non-compliance.
Wells was advised that on March 31, 2004, his contract would
not be renewed when it expired. Wells alleges that, also as a
result of his complaints, the track and cross-country budgets for
the 2003-2004 academic year were reduced by forty percent.
Moreover, the remaining sixty percent of each budget was divided
into thirty percent for track and thirty percent for cross
country. Butler and Collen informed Wells that he could apply for
one, but not both, of the thirty-percent-funded positions. Wells
applied for the positions but was not hired. The candidate who
was hired was offered $50,000.00 in salary and benefits which was
inconsistent with the amount of Wells' contract.
On May 20, 2005, Wells filed this action against the Board of
Trustees of CSU; Rollin Richmond, President of Humboldt State
University; Steven Butler; and Dan Collen. Wells sued the
individuals Defendants personally and in their official capacity
as employees of CSU. Wells alleges eight causes of action: (1)
and (2) violation of 42 U.S.C. § 1983 against CSU and Richmond,
Butler and Collen individually and in their official capacities
for retaliation based on his exercise of free speech; (3)
conspiracy under 42 U.S.C. § 1985 against Richmond, Butler and
Collen individually and in their official capacities; (4)
violation of 20 U.S.C. § 1681 against CSU for retaliation for
reporting Title IX non-compliance; (5) wrongful termination in
violation of public policy against CSU;*fn2 (6) violation of the prohibition
against discharge of whistleblowers under California Government
Code §§ 12653 and 8547.12 against CSU; (7) violation of public
policy against discharge of whistleblowers under California Labor
Code § 1102.5 against CSU; and (8) intentional infliction of
emotional distress against Defendants Richmond, Butler and
Defendants move to dismiss the first, second, third and fifth
causes of action and move to strike Wells' prayer for punitive
I. Dismissal Under Rule 12(b)(6)
A motion to dismiss for failure to state a claim will be denied
unless it is "clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations."
Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002)
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). All
material allegations in the complaint will be taken as true and
construed in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
A complaint must contain a "short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). "Each averment of a pleading shall be simple,
concise, and direct. No technical forms of pleading or motions
are required." Fed.R.Civ.P. 8(e). These rules "do not require
a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is `a short and
plain statement of the claim' that will give the defendant fair
notice of what the plaintiff's claim is and the grounds on which
it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
II. Motion to Strike Under Rule 12(f)
Rule 12(f) of the Federal Rules of Civil Procedure provides
that a party may move to strike "any redundant, immaterial,
impertinent or scandalous matter." A Rule 12(f) motion may be
used to strike a prayer for relief when the damages sought are
not recoverable as a matter of law. Tapley v. Lockwood Green
Engineers, Inc., 502 F.2d 559, 560 (8th Cir. 1974) (prayer for
damages exceeded maximum allowed by statute); Serpa v. SBC
Telecomms., Inc., 2004 U.S. Dist. LEXIS 18307, *7 (N.D. Cal.
I. First and Second Causes of Action Under 42 U.S.C. § 1983
Defendants assert that Plaintiff's first and second causes of
action should be dismissed because Defendants are entitled to
sovereign immunity under the Eleventh Amendment and because they
are not "persons" for purposes of § 1983 actions. Plaintiff
contends that Congress abrogated Eleventh Amendment immunity for
actions brought under Title IX. Furthermore, Plaintiff argues
that there is no Eleventh Amendment immunity for individuals sued
in their individual capacity.
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
The Eleventh Amendment has been interpreted to shield States
from suits by individuals absent the State's consent. Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). Nevertheless,
Congress may abrogate the States' Eleventh Amendment immunity
when it both unequivocally intends to do so and "acts pursuant to
a valid grant of constitutional authority." Bd. of Trs. of the
Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (quoting
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)).
However, the Court has held that Congress did not express an
intent to abrogate State immunity with regards to
42 U.S.C. § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58,
66-67 (1989). States, State agencies, and State officials sued in
their official capacity are not considered "persons" within the
meaning of § 1983. Id. at 71; Cortez v. County of Los
Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002).
Defendant CSU is an instrumentality of the State of California.
Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982).
Thus, CSU and its officers acting in their official capacity are
entitled to Eleventh Amendment immunity from § 1983 actions. On
this point, Wells' argument that the State does not have immunity
for actions brought under Title IX is non-responsive. The Eleventh Amendment does permit suits for prospective
injunctive relief against State officials in their official
capacities. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing
Ex Parte Young, 209 U.S. 123 (1908)). In such a case, a federal
court may order prospective relief and measures ancillary to
prospective relief but may not award money damages or its
equivalent. Edelman v. Jordan, 415 U.S. 651, 668 (1974); Green
v. Mansour, 474 U.S. 64, 71-73 (1985). Wells sues Defendants CSU
and Richmond, Butler and Collen in their official capacity
seeking monetary relief and punitive damages but he does not
request prospective injunctive relief. At the hearing,
Plaintiff's attorney stated that he did not wish to amend to sue
Defendants for injunctive relief. Therefore, the first and second
causes of action are dismissed against Defendants CSU and
Richmond, Butler and Collen acting in their official capacities.
Wells also sues Defendants Richmond, Butler and Collen as
individuals. The Ninth Circuit has held that the
Eleventh Amendment does not prohibit individual capacity suits. Blaylock
v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988). Thus, "under
§ 1983, a plaintiff may sue a state official in his individual
capacity for alleged wrongs committed by the officer in his
official capacity." Price v. Akaka, 915 F.2d 469, 473 (9th Cir.
1990) (citing Blaylock, 862 F.2d at 1354). Therefore, Wells may
proceed with his first and second causes of action for damages against Defendants Richmond, Butler and Collen in their
II. Third Cause of Action for Conspiracy Under § 1985(3)
Defendants Richmond, Butler, and Collen contend that
Plaintiff's third cause of action should be dismissed because of
sovereign immunity under the Eleventh Amendment.
The Ninth Circuit has held that a State entity possesses
Eleventh Amendment immunity from individual suits arising under §
1985. Austin v. State Indus. Ins. Sys., 939 F.2d 676 (9th Cir.
1991); Mitchell v. Los Angeles Cmty College Dist.,
861 F.2d 198, 201 (9th Cir. 1988). Thus, Defendants Richmond, Butler and
Collen, acting in their official capacities as State officers,
are immune from Wells' third cause of action. Because Wells seeks
money damages, he may only proceed against Defendants as
individuals. Austin, 939 F.2d at 679 (citing Kentucky v.
Graham, 437 U.S. 159, 166-67 (1985)). Therefore, the third cause
of action against Defendants Richmond, Bulter and Collen acting
in their official capacities is dismissed.
Defendants also contend that Wells has failed to plead his
conspiracy claim with sufficient specificity. Under § 1985, "[a]
mere allegation of conspiracy without factual specificity is
insufficient." Karim-Panahi v. Los Angeles Police Dep't,
839 F.2d 621, 626 (9th Cir. 1988). The elements of a § 1985(3) claim
are (1) the existence of a conspiracy to deprive the plaintiff of
the equal protection of the laws; (2) an act in furtherance of the
conspiracy; and (3) a resulting injury. Scott v. Ross,
140 F.3d 1275, 1284 (9th Cir. 1998). In addition, an indispensable element
of the conspiracy claim is "some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators' action." Griffin v. Breckenridge, 403 U.S. 88,
Wells points to paragraph thirty-seven of his complaint in
which he alleges several acts undertaken by Defendants in
retaliation for his exercise of free speech. However, Wells fails
to allege that Defendants agreed among themselves to deprive him
of the equal protection of the laws. Furthermore, Wells does not
allege that the actions taken against him were motivated by any
racial or class-based discriminatory animus. Rather, Wells
asserts throughout his complaint that Defendants retaliated
against him because of his advocacy on behalf of the students.
Yet, Wells cites no authority which recognizes as a protected
class the victims of retaliation for advocacy on behalf of
others. Accordingly, Wells' third cause of action against
Defendants as individuals is not sufficiently plead and is
However, the Court grants Wells leave to amend to allege that
(i) Defendants agreed to deprive him of equal protection, and
(ii) he is a member of a protected class and Defendants' actions
were motivated by discriminatory animus against him because of
his membership in that class. In considering such an amendment, Wells
should take notice that courts have held consistently that
whistleblower status does not support a § 1985 claim. See
Childree v. UAP/GA AG Chem, Inc., 92 F.3d 1140, 1146-47 (11th
Cir. 1996); Hicks v. Resolution Trust Corp., 970 F.2d 378, 382
(7th Cir. 1992); Deretich v. Office of Admin. Hearings,
798 F.2d 1147, 1153 (8th Cir. 1986); Buschi v. Kirven,
775 F.2d 1240, 1258 (4th Cir. 1985); McEvoy v. Spencer,
49 F. Supp.2d 224, 227 (S.D.N.Y. 1999).
IV. Fifth Cause of Action for Wrongful Termination
Defendants assert that Plaintiff's fifth cause of action should
be dismissed because Plaintiff was not terminated and because
there is no individual liability for wrongful termination. Wells
agrees that the fifth cause of action against Defendants
Richmond, Butler and Collen should be dismissed. Pl's Opp. Memo
at 1, n. 2. Nevertheless, he maintains that California State
University is liable for his termination.
Under California law, the termination of an employee is
tortious when it violates a fundamental public policy. Tameny v.
Atlantic Richfield Co., 27 Cal. 3d 167, 176 (1980). Such a claim
has become known as a Tameny claim. A plaintiff must show that
the public policy is delineated in a constitutional or statutory
provision, or in administrative regulations that serve a
statutory objective. Green v. Ralee Engineering Co.,
19 Cal. 4th 66, 79-80 (1998). Wells alleges that he was terminated for exercising his free
speech rights and for reporting Defendants' non-compliance with
Title IX. As alleged, Wells' termination would contravene public
policies. See U.S. Const. amend. I; 20 U.S.C. 1681, et. seq.
(Title IX); Jackson v. Birmingham Bd. of Educ., 125 S. Ct. 1497,
1504-05 (2005) (retaliation for asserting Title IX rights on
behalf of victims of discrimination); Cal. Gov. Code §§ 12653 and
8547.12. However, Wells had a one-year employment contract with
CSU, which was renewed each year from 1981 until 2004. In
California, an employee whose fixed-term contract is not renewed
cannot state a claim for wrongful termination in violation of
public policy. Motevalli v. Los Angeles Unified Sch. Dist.,
122 Cal. App. 4th 97, 112-13 (2004).
In Motevalli, the plaintiff, a probationary teacher, also
held a one-year employment contract. When her contract was not
renewed, she sued, claiming she was terminated for asserting her
free speech rights by refusing to cooperate with the school's
random weapons searches. Id. at 104-05. The California
appellate court held that, for purposes of stating a Tameny
claim, this did not constitute termination. Id. at 113. The
court held that an employer could not be held liable in tort for
not renewing an employment contract which expired on its own
terms. Id. at 113 (citing Daly v. Exxon Corp.,
55 Cal. App. 4th 39, 45-46 (1997)).
Wells argues that his case can be distinguished from
Motevalli because that case involved a probationary teacher with an
emergency credential working under a written contract. But these
facts are immaterial; the court did not limit its holding to
probationary teachers with emergency credentials. Rather, it
spoke generally about the liability of employers. Moreover, in
terms of the validity of Wells's fifth cause of action, the facts
and claims asserted in Motevalli closely mirror those in the
instant complaint. Like the plaintiff in Motevalli, Wells had a
one-year contract, which he alleges was not renewed because he
asserted his free speech rights.
Wells also contends that Daly suggests that an employer may
be liable if the claimant could prove that "but for" her
complaints, the employer would have renewed the employment
contract. Daly, 55 Cal. App. 4th at 44. But Daly does not
support Wells' contention because the court was addressing a
cause of action under section 6310(b) of the California
Occupational Safety and Health Act. Daly did not state that the
plaintiff could amend her complaint in order to allege a Tameny
claim. In fact, it specifically ruled out this possibility. Id.
Wells states that Defendants engaged in a two-year course of
conduct that led to his constructive termination. He explains
that this conduct included a negative evaluation, a reduction in
his budget and a rejection of his application for the
"fractional" coaching position. Under California law, the test
for constructive discharge is whether conditions were so "intolerable or
aggravated" that a reasonable employee would have resigned, and
whether the employer knew about the conditions and their effect
on the employee and could have remedied them but did not. See
Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994)
(citation omitted). Here, Wells does not allege that conditions
were so intolerable that he was forced to resign. Rather, Wells
admits that his employment ended when his one-year contract was
not renewed. Therefore, Wells was not constructively discharged.
Referring to Foley v. Interactive Data Corp., 47 Cal. 3rd 654
(1988), Wells argues that the continual renewal of his contract
from 1980 to 2004 gave rise to a covenant of good faith and fair
dealing. Even if Wells' assertion were correct, however, this
fact alone would not create a Tameny claim. Indeed, in Foley
the court held that tort remedies are not available for breach of
an implied covenant of good faith and fair dealing. Foley,
47 Cal. 3rd at 700.
Wells believes that Defendants argue against liability because
there was no express contract. This characterization is
incorrect. Defendants move to dismiss for failure to state a
claim on the ground that Wells was employed under a contract
which ended by its own terms and, thus, Defendants did not cause
Wells' termination. Wells also contends that a Tameny claim may
arise in an at-will employment relationship, citing Gantt v.
Sentry Insurance, 1 Cal. 4th 1083, 1090 (1992), overruled on
other grounds, Green v. Ralee Engineering Co., 19 Cal. 4th 66 (1998). However, Wells
acknowledges that his employment was governed by a one-year
contract. Compl. ¶ 28. He was not an at-will employee. This is
the relevant fact that bars Wells' Tameny claim against CSU.
Therefore, the fifth cause of action is dismissed.
V. Punitive Damages
Defendants move to strike Wells' request for punitive damages
on the ground that there can be no recovery against a State
entity or State officials sued in their official capacities.
Wells argues that a State agency can indemnify its employees for
punitive damages in its discretion and such damages are
recoverable against individual defendants.
Punitive damages are not available in suits under § 1983
against government entities. Vt. Agency of Natural Res. v.
United States ex rel. Stevens, 529 U.S. 765, 785 (2000) (citing
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)). State
officials acting in their official capacities are also immune
from punitive damages. Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989); Mitchell v. Dupnik, 75 F.3d 517, 527 (9th
Cir. 1996). However, punitive damages are available in an
individual capacity suit against a State official. Smith v.
Wade, 461 U.S. 30, 35 (1983).
Therefore, Wells' request for punitive damages against
Defendants CSU, and against Richmond, Bulter and Collen acting in
their official capacities, is stricken. The Court, however,
denies Defendants' motion to strike Wells' request for punitive damages
against Defendants Richmond, Butler and Collen as individuals.
For the foregoing reasons, IT IS HEREBY ORDERED THAT:
1) Defendants' motion to dismiss is GRANTED with prejudice as
to all claims in the first and second causes of action against
Defendants CSU and Richmond, Butler and Collen acting in their
2) Defendants' motion to dismiss is DENIED as to all claims in
the first and second causes of action against Defendants
Richmond, Butler and Collen acting in their individual
3) Defendants' motion to dismiss is GRANTED as to all claims in
the third cause of action against Defendants Richmond, Butler and
Collen acting in their official capacities.
4) Defendants' motion to dismiss is GRANTED, with leave to
amend, as to Plaintiff's third cause of action against Defendants
Richmond, Butler and Collen as individuals. The Court grants
Plaintiff leave to amend as instructed. If Plaintiff decides to
amend, he will have twenty days from the date of this order to
file his amended complaint.
5) Defendants' motion to dismiss is GRANTED with prejudice as
to all claims in the fifth cause of action.
6) Defendants' motion to strike is GRANTED, without leave to
amend, as to paragraphs 40 and 46 and prayer (d) for relief
against Defendants CSU and Richmond, Butler and Collen acting in their
7) Defendants' motion to strike is DENIED as to paragraphs 40
and 46 and prayer (d) for relief against Defendants Richmond,
Butler and Collen as individuals.
IT IS SO ORDERED.
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