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Steshenko v. Gayrard

United States District Court, N.D. California, San Jose Division

May 20, 2014

GREGORY NICHOLAS STESHENKO, Plaintiff,
v.
SUZANNE GAYRARD, et al., Defendants

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Gregory Nicholas Steshenko, Plaintiff, Pro se, Aptos, CA.

For Suzanne Gayrard, Tzvia Abramson, Board of Trustees of the California State University, Defendants: Jeffrey Richard Vincent, LEAD ATTORNEY, Office of the Attorney General, Oakland, CA; Rohit Kodical, California State Attorney General's Office, Oakland, CA.

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ORDER GRANTING MOTION TO DISMISS

LUCY H. KOH, United States District Judge.

Plaintiff Gregory Nicholas Steshenko (" Plaintiff" ) brings this action for age discrimination based on not being admitted to two graduate programs at San Jose State University. Defendants Suzanne Gayrard, Tzvina Abramson, and the Board of Trustees of the California State University (collectively, " Defendants" ) move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure (" Rule" ) 12(b)(6). ECF No. 12 (" Mot." ). The Court held a hearing on this motion on May 15, 2014. Having considered the parties' briefs and arguments, the relevant law, and the record in this case, the Court hereby GRANTS Defendants' Motion to Dismiss.

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I. BACKGROUND

Plaintiff is a 51-year-old unemployed electrical engineer seeking to re-enter the job market through a professional re-training. ECF No. 1 (" Compl." ) at ¶ 10. In addition to a Master of Science degree in Electrical Engineering, Plaintiff earned a Bachelor of Science degree in Biochemistry and Molecular Biology from the University of California, Santa Cruz, in 2010. See id. at ¶ ¶ 10, 15.

On November 23, 2012, Plaintiff applied to the Clinical Laboratory Scientist (" CLS" ) Training Program at San Jose State University. Compl. ¶ 15. The CLS Training Program is a one-year academic program combining theoretical training with an internship at a participating clinical laboratory. Id. at ¶ 11. On January 25, 2013, Plaintiff was notified that his application was denied and that he would not be invited for an interview. Id. at ¶ 16. According to Plaintiff, much younger applicants, in their 20s, with much more inferior academic credentials and work experience, were invited for interviews and subsequently admitted to the program. Id. Plaintiff alleges that he personally knew some of these applicants and observed how they " struggled" while taking the prerequisites for the program. Id. Plaintiff later raised these issues with the head of the CLS Training Program, Defendant Suzanne Gayrard. Id. However, Gayrard refused to explain the admission decision or to inform Plaintiff about the age statistics of the admitted applicants. Id. Accordingly, Plaintiff concluded that he was discriminated on the grounds of age. Compl. at ¶ 17. Plaintiff subsequently filed a complaint with the U.S. Department of Education Office of Civil Rights (" USDOE" ). Id.

On February 3, 2013, Defendant Tzvia Abramson, the head of the Stem Cell Internships in Laboratory Based Learning (" SCILL" ) Program, invited Plaintiff to apply to the SCILL Program. Compl. at ¶ 18. The SCILL Program is a two-year Master of Science program with a year of theoretical training and a year of an internship at a participating research laboratory. Id. at ¶ 12. On February 28, 2013, Plaintiff applied to the SCILL Program. Id. at ¶ 18.

According to Plaintiff, after Abramson contacted Gayrard and learned about Plaintiff's complaint to the USDOE, Abramson, Gayrard, and other university employees formed a conspiracy to retaliate against Plaintiff for his complaint. Compl. ¶ 19. On May 3, 2013, Abramson notified Plaintiff that he was not selected as " a finalist for this round," but that Plaintiff is on a waiting list for Fall 2013. Id. at ¶ 20. Abramson also stated that she will not provide any information about Plaintiff's ranking on that waiting list. Id. However, according to Plaintiff, there was no such thing as a waiting list and that the SCILL Program had been " struggling to find the minimally qualified students willing to apply." Id. Plaintiff alleges that all of the admitted applicants to the SCILL Program were young, and " their academic credentials were much inferior to those of Plaintiff." Id.

On June 10, 2013, Plaintiff notified Gayrard that Plaintiff will file a lawsuit against Gayrard. Id. at ¶ 21. According to Plaintiff, " Defendants decided to retaliate further" by denying Plaintiff's admission to graduate studies at San Jose State University's Department of Biological Sciences. Id.

Plaintiff alleges that the CLS Training Program, the SCILL Program, and the participating laboratories " heavily discriminate on the grounds of age." Compl. at ¶ 14. Plaintiff further alleges: " No persons of the protected age have ever been admitted to either of [the CLS Training or

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the SCILL] programs. The age discrimination is rampant." Id.

Plaintiff alleges that he has exhausted his administrative remedies with the USDOE on June 29, 2013. Compl. ¶ 7. Plaintiff also alleges that he filed " several timely administrative claims with California State University Chancellor's Office." Compl. ¶ 8. However, Plaintiff's claims were denied. Id.

On July 22, 2013, Plaintiff filed a Complaint against Defendants. ECF No. 1. On October 22, 2013, Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6). ECF No. 12. After the Court granted the parties' motions to extend time to file a response to the Motion to Dismiss, on January 23, 2014, Plaintiff filed an Opposition. ECF No. 26. On January 24, 2014, Plaintiff filed an addendum to his Opposition. ECF No. 28. On January 31, 2014, Defendants filed a Reply. ECF No. 29. The Court held a hearing on May 15, 2014. Plaintiff filed a supplemental letter brief on May 16, 2014. ECF No. 35.

II. LEGAL STANDARD

A. Motion to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include " a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court " accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Moreover, pro se pleadings are to be construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (" [I]n general, courts must construe pro se pleadings liberally." ).

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the " [C]ourt may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor is the court required to " 'assume the truth of legal conclusions merely because they are cast in the form of factual allegations.'" Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere " conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678. Furthermore, " a plaintiff may plead herself out of court" if she " plead[s] facts which establish that [s]he cannot prevail on h[er] . . . claim." Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (internal quotation marks omitted).

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B. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend " should be freely granted when justice so requires," bearing in mind that " the underlying purpose of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). When dismissing a complaint for failure to state a claim, " a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Id. at 1130 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Furthermore, the Court " has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Nonetheless, a court " may exercise its discretion to deny leave to amend due to 'undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party. . ., [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

III. DISCUSSION

Plaintiff's Complaint asserts nine causes of action against Defendants, but groups them into the following five causes of action: (1) age discrimination in violation of the Age Discrimination Act of 1975 (" ADA" ), Age Discrimination in Employment Act of 1967 (" ADEA" ), and California Fair Employment and Housing Act (" FEHA" ); (2) retaliation for speech in violation of the First Amendment to the U.S. Constitution pursuant to 42 U.S.C. § 1983 (" Section 1983" ) and § 52.1 of the California Civil Code (" Bane Act" ); (3) denial of due process and equal protection rights under the Fourteenth Amendment pursuant to Section 1983 and the Bane Act; (4) conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985(3) (" Section 1985(3)" ); and (5) intentional infliction of emotional distress (" IIED" ). See Compl. at 7-9.

Defendants move to dismiss Plaintiff's Complaint under Rule 12(b)(6) on the ground that Plaintiff's Complaint fails to state any claims upon which relief can be granted. See Mot. at 4-15. Specifically, Defendants contend that: (1) the Eleventh Amendment to the United States Constitution is a complete bar to all of Plaintiff's claims against Defendant Board of Trustees of the California State University, Mot. at 4-8; [1] and (2) each of Plaintiff's

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claims against Defendants Gayrard and Abramson fail because (a) Defendants Gayrard and Abramson cannot be individually liable, and (b) Plaintiff has not pled sufficient facts to constitute a claim. Mot. at 9-15. For the reasons set forth below, the ...


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