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Alexander v. San Diego Unified School Dist.


October 13, 2009


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Defendants' motion to dismiss the complaint. (Doc. No. 49.) For the reasons set forth below, Defendant's motion is GRANTED and this action is DISMISSED WITHOUT PREJUDICE.


Plaintiff Cherie Alexander ("Plaintiff") was a kindergarten teacher at Torrey Pines Elementary School.*fn1 Plaintiff states that in August of 2002, her classroom was broken into, and that valuable personal items were put in the trash by the school principal, Defendant Colleen Conaway, and a janitor. (FAC at 55, 63--64.)*fn2 Conaway was replaced as principal later that fall and the new principal, Defendant Jim Solo ("Solo"), engaged in multiple acts of harassment against Plaintiff. (Id. at 56.) Plaintiff states that at this time she wrote several letters to Defendant San Diego Unified School District ("SDUSD") complaining of the disposal of her belongings and the harassment she was suffering, all of which were ignored. (Id.) On January 7, 2003, shortly after Solo had yelled at her, Plaintiff suffered a stroke. The stroke forced her onto medical leave until June 13, 2003. (Id.) After her return, Solo continued to harass Plaintiff, including an incident in which he yelled at Plaintiff while she was in her classroom reading to her students. (FAC Exs. at 141.) On June 19, 2003 Plaintiff was placed on administrative leave by Defendant, which "effectively terminat[ed] her employment." (FAC at 61.)

Between being placed on administrative leave and a hearing with the Office of Administrative Hearings ("OAH") in September, 2007, Plaintiff made complaints to the California Department of Fair Employment and Housing ("DFEH") and the Equal Employment Opportunity Commission ("EEOC"), and engaged in state and Federal litigation against Defendants and others. (Id. at 61.) On August 11, 2008 Plaintiff filed an EEOC Charge of Discrimination and received a Notice of Right to Sue dated August 18, 2008. On October 3, 2008 Plaintiff filed the initial complaint in the current action, (Doc. No. 1) and on June 19, 2009 she filed the first amended complaint ("FAC") at issue in the instant order. (Doc. No. 45.) On July 6, 2009 Defendants filed a motion to dismiss. (Doc. No. 49.) On July 20, 2009 Plaintiff filed her opposition, (Doc. No. 51) and on July 30, 2009 Defendants filed their reply. (Doc. No. 58.) Plaintiff proceeds in this action pro se.


Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US - , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.

Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, the Court may deny leave to amend where amendment would be futile. See id.; Schreiber Distrib., 806 F.2d at 1401.


I. Subject Matter Jurisdiction

Defendants argue that the Court has no subject-matter jurisdiction to hear this case, because the federal claims made by Plaintiff are "sham" claims made solely to get into federal court. (Memo. ISO Motion at 5--7.) "Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)). Even if a plaintiff's federal claims are unlikely to state a proper cause of action, such a determination requires a judgment on the merits by the court and not a dismissal for lack of jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946).

In the instant case, Plaintiff's federal claims are not so obviously without merit as to deprive the Court of subject matter jurisdiction. Though Plaintiff's federal claims may not be clearly articulated at all points, they have a plausible connection to Plaintiff's factual allegations, for example that she was terminated from her position for discriminatory reasons, such that the Court does not find them frivolous. The Court is not fully convinced that the federal claims serve no other purpose than to try and get Plaintiff into federal court, and therefore finds that it has subject matter jurisdiction.

II. Preclusion

Defendants next argue that Plaintiff's claims are precluded. The doctrine of preclusion prevents parties from re-contesting issues that have already been decided on their merits in previous litigation. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323--24 (1971). "[A] federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Thus, "all federal courts [are] to give preclusive effect to state-court judgments whenever the court of the State from which the judgments emerged would do so." Id. (citation omitted). Under California law, preclusion bars "parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction."

Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal. 2d 601, 604 (1962). "[T]he doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case." Vandenberg v. Superior Court, 21 Cal. 4th 815, 828 (1999). "[T]he pleadings and proof in each case must be carefully scrutinized to determine whether a particular issue was raised even though some legal theory, argument or 'matter' relating to the issue was not expressly mentioned or asserted." Clark v. Lesher, 46 Cal. 2d 874, 880--81 (1956).

In the instant case, Defendants assert that all of Plaintiff's causes of actions are precluded due to several suits she has filed in California state court. (Memo. ISO Motion at 7--9.) Because the previous lawsuits involved the removal of items from Plaintiff's room, events surrounding her treatment after that incident, and her termination, Defendants argue that Plaintiff's case here is an attempt to relitigate issues already decided on the merits in earlier state court decisions. (Id.)

Although Defendants are correct that Plaintiff's suit involves the same issues contended in several, if not all, of the previous state court cases, they have not shown "finally determined" judgments in those cases. To prove their argument, Defendants present this Court with exhibits reflecting events in the San Diego County Superior Court. None of the evidence, however, is of the sort that would prove preclusion. For example, some of the documents state on their face that they reflect the court's tentative opinion. (See id., Exs. C, F, J, L, N, & R.) A tentative ruling is not entitled to preclusive effect. See Thomas v. Hous. Auth. of L.A., 2005 WL 6133692, at *1 (C.D. Cal. 2005) (A "tentative order binds neither the court nor the parties.") (citing Rhode Island v. United States Envtl. Prot. Agency, 378 F.3d 19, 25 (1st Cir. 2004)); In re Waltrip, 139 B.R. 492, 496 (N.D. Cal. 1991) ("whether or not a judgment ought to be considered 'final' in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative)") (quotation and citation omitted). Other submitted documents do not address the merits of Plaintiff's claims. (See id., Exs. F, G, H & Q.) Where an issue is not decided on its merits, a previous court ruling does not preclude its reexamination. While still others do not indicate in which case they were issued. (See id., Ex. D.) In light of these flaws, the Court declines, without prejudice, to find that the prior suits preclude the maintenance of the instant action.

III. Statute of Limitations

A. Title VII, ADA, and Rehabilitation Act

Plaintiff alleges violations of several federal anti-discrimination statutes, including the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964, and § 504 of the Rehabilitation Act. (FAC at 2--4.) "To establish a violation of Title II of the ADA, a plaintiff must show that (1) she is a qualified individual with a disability; (2) she was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, and (3) such exclusion or discrimination was by reason of her disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

Under Title VII, it is unlawful "for an employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. "A person suffers disparate treatment in his employment when he or she is singled out and treated less favorably than others similarly situated on account of" her race, color, religion, sex, or national origin. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).

"To establish a violation of § 504 of the [Rehabilitation Act], a plaintiff must show that (1) she is handicapped within the meaning of the [Act]; (2) she is otherwise qualified for the benefit or services sought; (3) she was denied the benefit or services solely by reason of her handicap; and (4) the program providing the benefit or services receives federal financial assistance." Id.

In order to bring claims under the ADA or Title VII, a plaintiff must file a claim with the EEOC within 180 days of the alleged act(s) of discrimination, or within 300 days if she has first filed state charges with the DFEH. 42 U.S.C. § 2000e-5(e); Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). The administrative requirement to timely file with the EEOC serves as both a judicial statute of limitations and a jurisdiction prerequisite. Sommatino v. United States, 255 F.3d 704, 707--09 (9th Cir. 2001); Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990).Claims based on discriminatory incidents outside the relevant time period are barred. Sosa, 920 F.2d at 1455.

The Ninth Circuit has not yet addressed what the statute of limitations is for claims under § 504 of the Rehabilitation Act, but other circuits have applied the state personal injury statute of limitations. See Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135--36 (9th Cir. 2001). District Courts within this circuit have adopted this approach, holding the statute of limitations to be two years, based upon the California Code of Civil Procedure's statute of limitations for personal injury claims. Cal. Code Civ. Proc. § 335.1; Pimentel v. Orloff, 2008 WL 4963049, at *2 (N.D. Cal. Nov. 19, 2008).

Plaintiff provides her Charge of Discrimination filed with the EEOC, dated by her August 11, 2008. (FAC at 77.) In that charge, she alleges that Defendants discriminated against her in violation of, inter alia, Title VII and the ADA. The Charge of Discrimination states that the discrimination forming the basis for which the charge was filed began on September 1, 2007, and was ongoing as of the filing of the charge. (Id.) However, in her complaint Plaintiff fails to allege any discriminatory acts that violate Title VII or the ADA that would have accrued within 300 days of August 11, 2008, nor any violations of the Rehabilitation Act that have occurred in the last two years. The complaint mainly alleges that members of the SDUSD stole from her and harassed her in 2002 and 2003. (See, e.g., id. at 55--64.) Plaintiff states that on June 19, 2003, SDUSD "effectively terminated her employment at Torrey Pines Elementary School." (Id. at 61.) These events fall well outside of the statute of limitations for her causes of action. Further, based on these events the two-year statute of limitations for the Rehabilitation Act claim ran in 2005.

Plaintiff provides no dates the Court can locate for any events after November, 2003, other than conclusory statements such as "[Defendants f]ailed to accommodate [Plaintiff's] disability. . . from year 2002 to 2008." (FAC at 9.) Given Plaintiff's statement that she was effectively terminated in June, 2003, such an accusation presumably refers to Plaintiff's continuing to not be employed by Defendants. Continued non-employment is not itself a discreet act of discrimination. See Olsen v. Idaho State Bd. Of Med., 363 F.3d 916, 926 (9th Cir. 2004) ("A claim accrues when a plaintiff knows or has reason to know of the injury which is the basis of the action").

Plaintiff also asserts that her due process rights were deprived at an administrative hearing which occurred at a date not specified in the complaint, but some years after the events of 2002--03. (FAC at 8.) However, the Court understands Plaintiff to be alleging not that she was discriminated against at the hearing, but rather that she was denied proper process at the hearing. In Delaware State College v. Ricks, 449 U.S. 250 (1980), the Supreme Court ruled that the statute of limitations accrues for discriminatory acts when the "operative decision" is made regarding a plaintiff's employment. Ricks, 449 U.S. at 256--58; see also RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1059 (9th Cir. 2002). Plaintiff alleges that the "operative decision" regarding her employment, and the notice to her of that decision, occurred in June, 2003. While Plaintiff can make a separate claim that her right to due process was violated at the hearing, such a claim does not extend the statute of limitations on claims linked to the discriminatory acts alleged from 2002--03. See Ricks, 449 U.S. at 257 (discrimination is not considered to continue up to termination itself unless separate acts of discrimination are alleged within the statute of limitations period); Hoesterey v. City of Cathedral City, 945 F.2d 317, 319--20 (9th Cir. 1991) (when plaintiff challenges not her termination but her termination without due process, the due process cause of action accrues upon the last day of employment).

Though Plaintiff's ADA, Title VII, and Rehabilitation Act claims are barred by the statute of limitations, she is entitled to equitable tolling if her administrative hearing, earlier suits, and current complaint satisfy the following factors:

1) timely notice to the Defendants in filing the first claim; 2) lack of prejudice to the Defendantss in gathering evidence for the second claim; and 3) good faith and reasonable conduct in filing the second claim.

Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir.1993) (citation omitted). "The doctrine of equitable tolling focuses on the effect of the prior claim in warning the Defendants in the subsequent claim of the need to prepare a defense." Id.

Plaintiff has not pled facts which would justify tolling. Therefore, her claims must be DISMISSED. However, since the Court can not conclusively determine that Plaintiff cannot possibly plead facts justifying tolling, it will grant Plaintiff leave to amend.

IV. Failure to State a Claim

A. Age Discrimination in Employment Act

Plaintiff next alleges discrimination under the Age Discrimination in Employment Act ("ADEA"). (FAC at 9.) The ADEA prohibits employers from "fail[ing] or refus[ing] to hire or . . . discharg[ing] any individual [who is at least 40 years old] . . . because of such individual's age."

29 U.S.C. § 623(a)(1).To state a claim under the ADEA, a plaintiff must make a prima facie case of discrimination. This requires Plaintiff to show that she (1) belonged to a protected class; (2) was satisfactorily performing her job or was qualified for hire or promotion; (3) was terminated, rejected for employment, or otherwise subjected to an adverse employment action; and (4) was replaced by a substantially younger employee with equal or inferior qualifications, or by alleging direct evidence of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Pottenger v. Potlatch Corp., 329 F.3d 740, 745 (9th Cir. 2003); Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994).

Although ADEA claims have the same EEOC-notification-based statute of limitation as ADA and Title VII claims, the statute of limitations for this claim may not have yet run. That is because unlike claims under the ADA or Title VII, the ADEA statute of limitations begins to run as of the plaintiff's actual termination. Since the date of the administrative hearing that appears to have officially ended Plaintiff's employment is unclear, the Court considers her ADEA claim on the merits.

Plaintiff's complaint fails to state an ADEA claim. First, Plaintiff has not made out a prima facie case of discrimination. The allegations of the FAC contain the first three circumstantial evidence factors: (1) that she belonged to a protected class, (2) that she was satisfactorily performing her job, and (3) that she was terminated. But Plaintiff has not alleged that she was replaced by someone substantially younger with equal or inferior qualifications.

Nonetheless, courts have held that lacking the replacement element is not always fatal to a plaintiff's case. If she alleges that she was terminated due to a general reduction in an entity's workforce, she may allege "circumstantial, statistical, or direct evidence" that gives rise "to an inference of discrimination." Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990). However, mildly suggestive comments, let alone conclusory allegations of violation of the ADEA, do not create an inference of age discrimination. See, e.g., Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918--19 (9th Cir.1996);Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993);Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438--39 (9th Cir.1990).

Plaintiff, however, has not alleged that her discharge was due to a general reduction in the workforce, and she has not alleged comments made by her superiors about her age nor any other evidence which the Court can find that would support an inference of discrimination based on age. Plaintiff's ADEA claim is therefore inadequately pled and DISMISSED.

B. Due Process

Plaintiff claims that her Fourteenth Amendment right to due process was violated. The Fourteenth Amendment states, in relevant part "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. "A threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution." Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).

Plaintiff's due process allegations are flawed for a number of reasons. She alleges due process violations by the OAH, who is not named as a Defendant, but makes no such claims against the named Defendants. (See FAC at 8, 24.) Further, the due process claims in the FAC do not satisfy Federal Rule of Civil Procedure 8(a). Nor has Plaintiff identified with adequate specificity a constitutionally protected liberty or property interest. Cf. Conn v. Gabbert, 526 U.S. 286, 292 (1999) (due process standard for obstacles to a field of employment); Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (due process standard for administrative hearing procedures of a 'local government entity'). Therefore, Plaintiff's due process claims are inadequately pled and must be DISMISSED.

C. First Amendment

Plaintiff next alleges that her "freedom of speech was taken away." (FAC at 9.) The Court presumes that Plaintiff is alleging a violation of her First Amendment rights.*fn3 A state public employer may not unduly abridge an employee's First Amendment rights. Keyishian v. Bd. of Regents, 385 U.S. 589, 605--06 (1967). Plaintiff's First Amendment allegations, however, are purely conclusory. She provides no explanation as to how Defendants abridged her free speech right. Cf. Connick v. Myers, 461 U.S. 138 (1983) (discussing protection against termination in retaliation for exercising rights under the First Amendment). Without such an explanation, Plaintiff's complaint does not state a cognizable First Amendment claim and must be DISMISSED.

D. Other Federal Claims

Plaintiff lists several other federal constitutional provisions in her complaint. For example, Plaintiff makes statements such as "[f]ailure to allow free speech: Articles I, II; and amendments . . . XV, XIX, and XXVI." (FAC at 3.) These claims are not attached to any statements of how such provisions of the constitution were violated. Since merely listing out articles and amendments of the constitution fails to put Defendants on notice as to what the actual claims against them are, these claims are DISMISSED for failure to satisfy Rule 8(a). See Bell Atl., 550 U.S. at 555.

V. Supplemental Jurisdiction over State Law Claims

Having dismissed all of Plaintiff's federal claims, the Court must address her state law claims. "The district court may decline to exercise supplemental jurisdiction over a [state law] claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 n.2 (9th Cir. 1997) (citing 28 U.S.C. § 1367(c)). The Court therefore exercises its discretion and declines supplemental jurisdiction over the state law claims. They are DISMISSED without prejudice.

VI. Leave to Amend

This Court must grant leave to amend unless it "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." DeSoto, 957 F.2d at 658. In this case, it is not clear that amendment would be futile. Therefore, the Court grants Plaintiff leave to amend.


For the reasons stated, Defendant's motion to dismiss is GRANTED and Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Further, Defendants' objection to Plaintiff's evidence in support of her opposition to the motion to dismiss is OVERRULED as moot. (Doc. No. 58-2.) If Plaintiff elects to amend her complaint, she MAY FILE her Second Amended Complaint within 45 days of the date this order is electronically docketed.


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