ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
ELIZABETH D. LAPORTE, Magistrate Judge.
Defendants San Francisco United School District ("the District") and Eric Guthertz moved to dismiss Plaintiff's complaint. (Dkt. 6.) For the reasons set forth below, the Court grants in part and denies in part Defendants' motion. The Court dismisses Plaintiff's 42 U.S.C. § 1981 claims against the District and Guthertz in his official capacity with prejudice. The Court also dismisses Plaintiff's military discrimination claim under California Military & Veteran's Code § 394 against Defendants with prejudice. The Court dismisses Plaintiff's § 1981 discrimination claim against Guthertz in his individual capacity without prejudice, but the Court declines to dismiss Plaintiff's § 1981 retaliation claim against Guthertz in his individual capacity. The Court orders Plaintiff to file an amended complaint no later than January 3, 2014. The Court will hold a further case management conference on February 4, 2014, and orders the parties to submit a join case management statement by January 28, 2014.
A. Plaintiff's Allegations
Plaintiff Tadd Onomowale Scott is a black male English teacher at Mission High School in San Francisco. The District is a public school district. Defendant Guthertz is a principal at Mission High School.
From 1984-1987, Plaintiff served in the U.S. Army. After being honorably discharged, he served in the inactive reserve for five years. Plaintiff continues to perform volunteer services for various branches of the military, is an avid supporter of ROTC activities at high schools, and has contemplated serving in the California National Guard. The District hired Plaintiff as an English teacher with probationary status at Mission High School in August 2008. During his two-year probationary period, an assistant principal supervised by Guthertz gave Plaintiff outstanding review, and Guthertz gave Plaintiff a highly satisfactory review. Plaintiff attained tenured status as an English teacher in the 2010-2011 school year. Plaintiff has applied to be promoted to an administrator position within the District but has yet to be promoted. He also founded the Mission High Guitar Club "outside of work, " which, until 2012, held after-school music workshops at Mission High School and Dolores Park Church. (Complaint ("Compl.") ¶ 9.)
In July 2011, Plaintiff participated in and financially supported the Untied States Marine Corps Educators' workshop at Camp Pendleton in San Diego. During the 2011-2012 school year, Plaintiff helped a Marine Corp Sergeant answer students' questions about careers in the Marines. When Guthertz learned that Plaintiff spoke with students about the Marines, he "called Scott into his office and angrily told Scott that it was not his place to talk with students about the military and admonished him to stop doing so." (Compl. ¶ 15.) Plaintiff explained that the ROTC instructor referred students to Plaintiff if they had any direct questions about the Marines due to his training at Camp Pendleton. Guthertz, who had "openly expressed anti-military sentiments at work, " responded that it was a violation of board policy for a teacher to speak with students about military service. (Id.) "[U]nder an apprehension that he would be fired if he did not do as Guthertz directed, [Plaintiff] immediately stopped answering student questions" about the Marines. (Id.) Moreover, deeming Guthertz's "strong admonishment about his Marine Corp. activities" a "threat to his employment, " Plaintiff was "discouraged from engaging in voluntary military service and activities and has put his intent to join the California National Guard on hold." (Id.)
During the 2011-2012 school year Plaintiff supported another black teacher who complained that his poor performance reviews were based on racial discrimination and retaliation by Guthertz. Plaintiff advised the employee to file a discrimination complaint with the union and referred him to equal employment office agencies. Guthertz knew that Plaintiff assisted the employee. According to Plaintiff, since his conversation with Guthertz about military activities and his support of his fellow teacher's complaints, Guthertz has treated Plaintiff with hostility.
Plaintiff's further alleges that other discriminatory and retaliatory actions were taken against him from 2011 to 2013. In September 2011, Guthertz assigned an individual with no teaching experience to observe Plaintiff in the classroom on two occasions. This individual issued a report stating that Plaintiff did not meet teacher standards and rated Plaintiff as "needs improvement." (Id. ¶ 18.) Plaintiff notes that although he received highly satisfactory evaluations from 2008 to 2011, "after he engaged in protective activities, he received a needs improvement' evaluation." (Id.) Plaintiff filed grievances with the union about his evaluation and was warned that there might be retaliation. The union did not act on his grievances.
In March 2012, Guthertz yelled at Scott for leaving the high school campus during the school day. Scott, considering the conduct threatening, explained that he was using his "free" conference period to change clothes at his home, which was across the street from the high school. (Id. ¶ 20.) Guthertz stated that he was "just checking" and "angrily and rapidly walked away." (Id.) A few weeks later, a student returned to Plaintiff's class from Guthertz's office and announced to the whole class that Plaintiff was going to be fired. Plaintiff was humiliated and "felt it both incredulous and extremely disrespectful that Guthertz would relay his intentions to a student, " but the union did nothing when Plaintiff reported the situation. (Id. ¶ 21.) Moreover, in April 2012, Guthertz falsely accused Plaintiff of participating in a "mandatory reporting failure" in which Plaintiff was not involved, which caused Plaintiff great emotional distress. (Id. ¶ 22.)
Because neither the District nor the union took any action on Plaintiff's complaints about Guthertz "and the adverse actions to which Scott was being subjected, " Plaintiff filed a discrimination and retaliation complaint against Guthertz and the District with the Department of Fair Employment and Housing ("DFEH") in August 2012. (Id. ¶ 24.) The DFEH transmitted copies of the complaint to Guthertz and others at Mission High.
Later in August 2012, Guthertz placed Plaintiff in the Peer Assistance and Review ("PAR") Program, a remediation program that is "a performance review program targeting teachers for termination, " and assigned a coach to observe Plaintiff in the classroom. (Id. ¶ 25.) In September 2012, the coach ran her hand down Plaintiff's spine as she exited the classroom in full view of students. Plaintiff reported the incident to Guthertz and assistant principal Laura Parker and complained of sexual harassment. Guthertz, Parker, and the District did not do anything about Plaintiff's complaint and continued to assign the coach to observe Plaintiff. In October 2012, Guthertz dismissed Scott from the PAR program and "assigned Mission High administrators whom he supervised as evaluators, " who gave Plaintiff unsatisfactory performance reviews every two months without clearly explaining why. (Id. ¶ 26.)
In the spring of 2012, Guthertz prohibited Plaintiff from operating the guitar club as an after-school program at Mission High. As a result, Plaintiff "was forced to conduct the club at the local Dolores Park Church, thereby losing a number of Mission High School students who participated in the club at the school because it was convenient." (Id. ¶ 27.) Meanwhile, Plaintiff's issues with performance reviews continued. In January 2013, Plaintiff was assigned another coach who reported to assistant principal Parker and was indirectly supervised by Guthertz. This coach quit the assignment because she was "very uncomfortable with the energy and tension that her boss, Parker, displayed toward" Plaintiff. (Id. ¶ 28.) In April 2013, Parker evaluated Plaintiff and ranked him as "needs improvement." (Id. at ¶ 29) Plaintiff believed that this evaluation, like others, was discriminatory and retaliatory.
On August 9, 2013, Guthertz placed Plaintiff back into the PAR Program under an accelerated evaluation plan for the 2013-14 school year, "claiming his performance was substandard and warn[ing] him that he could be terminated." (Id. ¶ 30.) Also in August 2013, union representative Derrlyn Tom informed the staff at Mission High "that people of color were receiving a disproportionately high number of negative performance reviews under Guthertz's administration. (Id. ¶ 31.) Tom and PAR coach Nathan Draper observed Plaintiff teaching, and Tom heard Draper say good things about the observation. Later, Draper disrupted Plaintiff's classroom by coming in and taking pictures, causing the students to ask questions. Also that month, Draper informed Scott that he and a supervisor were going to observe him and that a decision on his employment suitability would be rendered in October 2013. According to Plaintiff, the PAR evaluation usually has four phases and lasts for an entire school year, but Guthertz placed Plaintiff on an accelerated PAR Program that omitted some of the phases. Guthertz did not place similarly situation teachers in an accelerated PAR Program, and Plaintiff believed that the PAR ...