This matter comes before the court upon defendant Feather River Community College's consolidated motion for summary judgment or, alternately, partial summary judgment with respect to the separate complaints filed by plaintiffs Thein, Jaureguito and Wartluft ("plaintiffs"). (T-ECF 62, J-ECF 75, W-ECF 49, respectively.*fn1 ) The court has decided this motion without oral argument. For the following reasons, defendant's motion is hereby granted in part and this case is remanded.
I. FACTS AND PROCEDURAL HISTORY
Thein, Jaureguito and Wartluft were employees of defendant. Thein's employment was terminated on June 30, 2006, when his employment contract expired and was not renewed; Jaureguito resigned on April 7, 2006; and Wartluft's employment was terminated on November 7, 2005. Plaintiffs each brought complaints before the Department of Fair Employment and Housing ("DFEH") and received right-to-sue notices. (Thein's First Am. Compl. ¶ 60, ECF 46; Jaureguito's First Am. Compl. ¶ 59, ECF 44; Wartluft's First Am. Compl. ¶ 61, ECF 29.) Plaintiffs subsequently filed complaints with the State Personnel Board ("SPB") alleging retaliation in violation of the California Whistleblower Protection Act, CAL. GOV'T CODE § 8547.3 and CAL. EDUC. CODE § 87160, et seq. Thein's complaint was submitted on June 19, 2006, Jaureguito's complaint was submitted on June 29, 2006, and Wartluft's complaint was submitted on June 20, 2006. (Thein's Req. for Jud. Not. Ex. 1, ECF 62-3; Jaureguito's Req. for Jud. Not. Ex. 1, ECF 75-3; Wartluft's Req. for Jud. Not. Ex. 1, ECF 49-3.)
The SPB issued its decision on October 19, 2010, finding that plaintiffs did not engage in protected activity under California Education Code § 87160 et seq., and that they were performing their job duties, not acting adversely to defendant. (Def.'s Statement of Undisputed Facts ("DSUF") ¶¶ T-31, J-19, W-22; Pls.' Opp'n Statement of Undisputed Facts ("PSUF") ¶¶ T-31, J-19, W-22.) Specifically, the SPB rejected the Administrative Law Judge's proposed decision finding retaliation on July 21, 2009.*fn2 (SPB Decision, Def.'s Req. Jud. Not. Ex. 3, TECF 62-3.) The SPB analyzed plaintiffs' claims using federal court precedent applying the Federal Whistleblower Act of 1989 and ultimately found that communications made in the course of employment are not protected. (Id.) Plaintiffs did not file requests for reconsideration with the SPB within thirty days of service of the decision, nor have they filed a petition for writ of mandate for review of the SPB's decision.*fn3 (DSUF ¶¶ T-32 & 33, J-20 & 21, W-23 & 24; PSUF ¶¶ T-32 & 33, J-20 & 21, W-23 & 24.)
Thein filed his complaint with this court on August 9, 2006. (T-ECF 1.) Defendant responded on September 18, 2006. (T-ECF 8.) Thein filed his amended complaint on November 26, 2008. (T-ECF 46.) Defendant filed its answer on December 12, 2008. (T-ECF 47.)
Jaureguito filed her complaint with this court on November 22, 2006. (J-ECF 1.) Defendant responded on January 8, 2007. (J-ECF 11.) Jaureguito filed an amended complaint on November 26, 2008. (J-ECF 44.) Defendant filed its answer on December 12, 2008. (J-ECF 45.) Defendant filed a motion for summary judgment on October 8, 2010. (J-ECF 67.) Jaureguito filed an opposition to Defendant's motion on October 21, 2010. (J-ECF 68.) Defendant filed its reply on October 29, 2010. (J-ECF 69.) The court vacated Defendant's motion on November 1, 2010. (J-ECF 72.)
Wartluft filed her complaint with this court on September 26, 2007. (W-ECF 2.) Defendant responded on November 13, 2007. (W-ECF 10.) Wartluft filed her amended complaint on November 26, 2008. (W-ECF 29.) Defendant filed its answer on December 12, 2008. (W-ECF 30.)
These cases were related on October 2, 2007. (T-ECF 23, J-ECF 19, W-ECF 7.)*fn4 In their amended complaints, Thein and Jaureguito allege three causes of action:
1) unlawful retaliation and discrimination in violation of Title IX;
2) retaliation in violation of the California Fair Employment and Housing Act ("FEHA"); and 3) failure to prevent discrimination and harassment in violation of FEHA. Wartluft alleges 1) and 2) above, as well as sexual orientation discrimination in violation of FEHA, gender discrimination in violation of FEHA, and failure to pay compensation at the time of discharge or termination of employment in violation of California Labor Code Sections 201 and 203.*fn5 Plaintiffs seek: 1) a judgment awarding them back pay, front pay, damages for emotional distress and compensatory damages;
2) an order reinstating their employment with Defendant; 3) attorneys' fees and costs; and 4) such other relief as the court deems appropriate. Wartluft also seeks a judgment awarding her all unpaid compensation together with prejudgment interest and waiting time penalties in the amount of thirty days' salary.
Defendant filed the present consolidated motion for summary judgment or, alternately, partial summary judgment, on January 21, 2011, contending that it is entitled to summary judgment because plaintiffs' Title IX and FEHA claims are precluded by the SPB's decision. Plaintiffs filed their oppositions on March 2, 2011. (T-ECF 66, J-ECF 79, W-ECF 53.) Defendant filed its reply on March 9, 2011. (T-ECF 67, J-ECF 80, W-ECF 54.)*fn6