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October 4, 2005.

DAVID WELLS, Plaintiff,

The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge

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 Collen.

  Defendants move to dismiss the first, second, third and fifth causes of action and move to strike Wells' prayer for punitive damages.


  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 ...

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