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Eric Small v. Feather River College

May 2, 2011



This matter is before the Court on Defendants‟ Feather River Community College District (erroneously sued as Feather River College), Merle Trueblood and James Johnson‟s (collectively "Defendants") Motion to Dismiss (Doc. #14) and Motion to Strike (Doc. #15) Plaintiff Eric Small‟s ("Plaintiff") First Amended Complaint ("FAC") (Doc. #12). Defendants move to dismiss the FAC for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and move to strike portions of the FAC pursuant to Rule 12(f). Plaintiff opposes both motions (Docs. #19 and #20). These matters were set for hearing on March 9, 2011, and ordered submitted on the briefs.*fn1 For the reasons set forth below, Defendants‟ motion to dismiss is granted in part and denied in 3 part, and the motion to strike is denied.


Plaintiff worked at Feather River College ("FRC") from 7 approximately 2005 to 2010. During this time, Plaintiff worked as 8 an assistant football coach, and as an academic advisor. The FAC 9 alleges that Plaintiff‟s job was classified as "Assistant Football Coach/Instructional Assistant" and that he was the only permanent, full-time employee in the football department, besides the Head Coach. He was provided business cards by FRC, which allegedly identified him as "Associate Head Football Coach." During the time Plaintiff was at FRC, there were four Head Coaches: Coach Simi, Coach White ("White"), Coach Mooshagian ("Mooshagian"), and interim Head Coach Johnson ("Johnson"). The FAC further alleges that Plaintiff did extensive recruiting for FRC‟s football program, primarily recruiting African American football players from the South. Plaintiff alleges he created a "win-win" situation, in which FRC had a successful football team and fully filled dorms, while players benefitted from Plaintiff‟s dedication and extensive network, resulting in nearly all recruits moving on to scholarships at four-year colleges after finishing at FRC. However, Plaintiff alleges that he and his African American recruits faced racial hostility and discrimination from the community at-large and from other coaching staff. Plaintiff alleges he was passed up for promotion to Head Coach despite his qualifications, and was 2 retaliated against for complaining about discriminatory treatment 3 towards himself and his recruits. When Plaintiff eventually left 4 his job in the fall of 2010, he alleges he was constructively 5 discharged due to a situation of racially motivated hostility that 6 had become intolerable. The FAC alleges that Johnson was 7 particularly hostile towards Plaintiff and African American student 8 athletes, and that defendant Merle Trueblood ("Trueblood"), FRC‟s 9

Athletic Director, supported Johnson in forcing out Plaintiff and changing the composition of the football team from predominantly African American to predominantly white.

Defendants move to dismiss Plaintiff‟s claims, alleging that Plaintiff has not plead facts to support his allegations that the conduct complained of was motivated by his race, has not plead that he suffered an adverse employment action, and has not put forth facts demonstrating that he engaged in a protected activity. Accordingly, Defendants move the Court to dismiss all claims in the FAC with prejudice, for failure to state a claim.


A. Legal Standard-Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a 5 plaintiff needs to plead "enough facts to state a claim to relief 6 that is plausible on its face." Twombly, 550 U.S. at 570.

Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Absent prejudice, or a strong showing of any [other relevant] factor[], there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Id.

B. Request for Judicial Notice

Defendants request judicial notice (Doc. #14-2) of the minutes of the Feather River Community College Board of Trustees meeting dated September 25, 2008, consent agenda dated September 27, 2008, and employment offer letter to Plaintiff dated September 27, 2008. Plaintiff objects to Defendants‟ request for judicial notice. Generally, the court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. There are two exceptions: when material is attached to the complaint or relied on by the complaint, or when the court takes 2 judicial notice of matters of public record, provided the facts are 3 not subject to reasonable dispute. Sherman v. Stryker Corp., 2009 4

WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations 5 omitted). Accordingly, Courts may consider extrinsic evidence when 6

"plaintiff's claim depends on the contents of a document, the 7 defendant attaches the document to its motion to dismiss, and the 8 parties do not dispute the authenticity of the document. . . ." 9

Knievel v. ESPN, 393 F.3d 1069, 1076 (9th Cir. 2005). Defendants argue that the documents are matters of public record, establish Plaintiff‟s job title and show that Plaintiff was not demoted. However, Plaintiff objects that the board minutes do not describe Plaintiff or his job title, the consent agenda does not state Plaintiff‟s job title, and the offer of employment, which does state Plaintiff‟s job title, is not public record and therefore is not appropriate for judicial notice. The Court finds that the meeting minutes and consent agenda are not relevant to establishing Plaintiff‟s job title or determining whether he was demoted. The letter offering employment to the Plaintiff is not an appropriate document for judicial notice because it is not a matter of public record. Accordingly, the Court will not consider these documents in ruling on the motion to dismiss, and DENIES Defendants‟ request for judicial notice.

C. Claims for Relief

1. First Claim for Relief: Constructive Discharge, 42 U.S.C. § 1981

Plaintiff brings a claim of constructive discharge under Section 1981 against defendants Trueblood and Johnson, alleging that he was constructively forced out of his employment when, after 2 complaining of protected activity his working conditions became 3 intolerable. Defendants argue that Plaintiff‟s allegations are not 4 sufficient to state a claim for constructive discharge.

42 U.S.C. § 1981 provides that all persons shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens. The statute defines, make and enforce contracts to include the making, performance, modification and termination of contract, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

Flores v. Von Kleist, 739 F.Supp.2d 1236, 1256 (E.D. Cal. 2010) (internal citations omitted). The legal principles guiding a court‟s analysis of a Title VII claim apply with equal force in a Section 1981 claim. Jackson v. ABC Nissan, Inc., 2006 WL 2256908, FN9 (D. Ariz. 2006), citing Manatt v. Bank of America, NA, 339 F.3d 792, 797 (9th Cir. 2003).

"Under the constructive discharge doctrine, an employee‟s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee‟s position would have felt compelled to resign?" Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). Constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." Id. The Ninth Circuit does not require a plaintiff to establish that his employer created the intolerable conditions with the intent to cause the employee to 2 resign. Id. at FN 7. In general, a single isolated instance of 3 employment discrimination is insufficient as a matter of law to 4 support a finding of constructive discharge. See Nolan v. 5

Cleveland, 6986 F.2d 806, 812 (9th Cir. 1982). Hence, a plaintiff 6 alleging a constructive discharge must show some aggravating 7 factors, such as a ...

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