The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT [docket number 14]
Plaintiff Robin G Brodie ("Plaintiff") has sued the Board of Trustees of the California State University ("CSU") and Terri Hopson ("Hopson"). She has sued CSU for sexual harassment under 42 U.S.C. § 1983 ("section 1983"), sex discrimination under section 1983, and sexual orientation discrimination under unidentified law. (See generally Compl., Docket No. 1.) Pursuant to section 1983, she has sued Hobson for sexual harassment.
Plaintiff worked at the Performing Arts Center San Luis Obispo, which is a California Polytechnic State University facility ("Cal Poly"). (Id. ¶ 5.) Cal Poly is a California State University, and Plaintiff was a CSU employee. (Id. ¶ 6.) Hobson was Plaintiff's colleague, and she allegedly repeatedly hugged, stroked, and kissed Plaintiff, despite Plaintiff rebuffing her approaches. (Id. ¶¶ 10-18.) Plaintiff purportedly endured Hobson's harassment for years, and her supervisor urged her on a number of occasions not to report the problem to the administration. (Id. ¶¶ 25-26.) Plaintiff eventually reported the harassment to the Human Resources Department, but the Human Resources investigator advised her not to file a formal written complaint. (Id. ¶¶ 29, 32.) On September 8, 2010, "Hobson hugged and kissed Plaintiff for the last time before she was put on administrative leave," which Hobson never returned from. (Id. ¶¶ 34-35, 38.) Plaintiff does not purport to have filed any administrative complaints, and she admits that, "[i]t appears to be true that Plaintiff filed neither a complaint with the EEOC nor a complaint with FEHA." (Plaintiff's Response to Defendant's Motion to Dismiss Under Rule 12(b) ("Opp'n") at 7:23-24, Docket No. 15.)
Presently before the court is CSU's Motion to Dismiss Complaint ("Motion"). (Docket No. 14. ) CSU argues that the court lacks subject matter jurisdiction over Plaintiff's claims against CSU. (See generally Defendant's Memorandum of Points and Authorities in Support of Motion to Dismiss Complaint, Docket No. 14.) The court agrees. Sovereign immunity under the Eleventh Amendment shields CSU from Plaintiff's section 1983 claims. The court lacks subject matter jurisdiction to adjudicate Plaintiff's sexual orientation discrimination claim, regardless of whether it is brought under federal or state law. If it is brought under federal law, Title VII, Plaintiff has not exhausted administrative remedies, and thus cannot file suit in a federal district court. If it is brought under state law, Plaintiff has not attempted to argue that supplemental jurisdiction is proper, and thus failed to carry her burden to show that the court has subject matter jurisdiction.
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A complaint must be dismissed if there is a "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of demonstrating that subject matter jurisdiction exists over the complaint when challenged under Rule 12(b)(1). Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam). "'A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect [can] be corrected by amendment.'" Id. (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926)).
A. Plaintiff's Section 1983 Claims
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 Supreme Court has interpreted the Eleventh Amendment as preventing suits by an individual against a state, whether or not the individual is a resident of that state. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). Sovereign immunity under the Eleventh Amendment applies to § 1983 suits. Quern v. Jordan, 440 U.S. 332, 345 (1979). Instrumentalities of the state also enjoy such immunity, and CSU is an instrumentality of the state. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982). Sovereign immunity, therefore, protects CSU, and Plaintiff's § 1983 claims against CSU fail as a result. See id.
Plaintiff, however, claims that CSU can be liable on an independent contractor theory. Opp'n at 5:5-7:16, Docket No. 15). Plaintiff's employer was CSU, but she worked at the Cohan Center, which according to the Cohan Center's alleged operating agreement is "governed under the tenets of an operating agreement among the facility's partners- Cal Poly, the City of San Luis Obispo, and the Foundation for the Performing Arts (FPAC)." (Id. at 5:24-6:4.0) Allegedly, The operating agreement "is directed by a Commission," and "Cal Poly is a partner in the operating agreement, and . . . the independent contractor of the Commission for the administration of the Cohan Center." (Id. at 6:1-4.) Plaintiff asserts, and requests discovery to prove, that Cal Poly is in her case an independent contractor, which she claims would prohibit CSU from claiming sovereign immunity. (Id. at 6:4-7:16.) The court need not determine whether Cal Poly was acting as an independent contractor, though, because sovereign immunity shields it from liability either way.
The Ninth Circuit has suggested that sometimes a state or state instrumentality may be considered an independent contractor. See Thorne v. United States, 479 F.2d 804, 807 (9th Cir. 1973).
However, nothing suggests that such a status abrogates sovereign immunity. The only case Plaintiff cites to the contrary is Thorne v. United States. Id. That case, however, involved the Federal Torts Claims Act, which, unlike section 1983 claims, "waive[s sovereign] immunity to the extent of the provisions of the Act." Id. Sometimes being an independent contractor matters in the sovereign immunity analysis of a section 1983 cases. Those cases, however, involve a non-state entity that was working for a state as an independent contractor. See e.g. Del Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008) (finding that a private corporation that ran a "bad check diversion program" for Santa Clara County's District Attorney, who the court assumed to be working in a state government ...