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Steshenko v. Albee

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

May 20, 2014

GERALDINE M. ALBEE, et al., Defendants

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[Copyrighted Material Omitted]

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

For Geraldine M. Albee, Board of Trustees of California State University, Defendants: Jeffrey Richard Vincent, LEAD ATTORNEY, Office of the Attorney General, Oakland, CA.

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LUCY H. KOH, United States District Judge.

Plaintiff Gregory Nicholas Steshenko (" Plaintiff" ) brings this action for age discrimination based on not being admitted to a graduate program at San Francisco State University. Defendants Geraldine Albee 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. 15 (" 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.


Plaintiff is a 52-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. See id. at ¶ 10.

On October 22, 2012, Plaintiff applied to the Clinical Laboratory Scientist (" CLS" ) Internship Program at San Francisco State University for enrollment in the Fall Semester of 2013. Compl. ¶ 12. The CLS Internship Program is a one-year academic program combining theoretical training with an internship at a participating clinical laboratory. Id. at ¶ 11. On

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March 19, 2013, Plaintiff was notified that he would not be invited for an admission interview. Id. at ¶ 12. In response to Plaintiff's inquiries, CLS Director Defendant Albee stated that the reason for the denial was that Plaintiff's transcript--with the grade for one of the prerequisite classes--arrived after the deadline. Id. Albee also stated that the participating clinical laboratories, not San Francisco State University, made admission decisions for the program. Id.

On June 12, 2013, Plaintiff reapplied to the CLS Internship Program for enrollment in the Spring Semester of 2014. Compl. ¶ 13. On August 28, 2013, Albee notified Plaintiff that Plaintiff " did not meet the criteria for selection into the CLS program." Id. Albee refused to clarify what " criteria" Plaintiff did not meet, and ceased communications with Plaintiff. Id. 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 the CLS Internship Program and the participating clinical laboratories " heavily discriminate on the grounds of age." Compl. at ¶ 14. Plaintiff alleges: " No persons of the protected age have ever been admitted to the [CLS Program]. The age discrimination is rampant." Id. Plaintiff further alleges that Plaintiff's age was the " only derogatory factor" that " prevented [Plaintiff's] admission to the CLS Internship Program, denied Plaintiff a professional license, and ultimately denied Plaintiff a professional job. Id.

Plaintiff alleges that he has exhausted his administrative remedies with the USDOE. Compl. ¶ 7. Plaintiff also alleges that he filed a timely administrative claim with the California State University Chancellor's Office. Compl. ¶ 8. However, Defendants chose not to respond to Plaintiff's claim. Id.

On October 24, 2013, Plaintiff filed a Complaint against Defendants. ECF No. 1. On March 26, 2014, Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6). ECF No. 14. That same day, Defendants amended the Motion to Dismiss. ECF No. 15 (" Mot." ).[1] After the Court granted Plaintiff's motion to extend time to file a response to the Motion to Dismiss, on April 17, 2014, Plaintiff filed an Opposition. ECF No. 20. On April 23, 2014, Defendants filed a Reply. ECF No. 21. The Court held a hearing on May 15, 2014. Plaintiff filed a supplemental letter brief on May 16, 2014. ECF No. 23.


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,

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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).

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)).


Plaintiff's Complaint asserts seven causes of action against Defendants, but groups them into the following four causes of action: (1) age discrimination in violation of the Age Discrimination Act of 1975 (" ADA" ), Age Discrimination in Employment

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Act of 1967 (" ADEA" ), and California Fair Employment and Housing Act (" FEHA" ); (2) violation of due process and equal protection rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (" Section 1983" ) and § 52.1 of the California Civil Code (" Bane Act" ); (3) conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985(3) (" Section 1985(3)" ); and (4) intentional infliction of emotional distress (" IIED" ). See Compl. at 5-7.

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 3-12. 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 3-8; [2] and (2) each of Plaintiff's claims against Defendant Albee fail because (a) Albee cannot be individually liable for those claims, and (b) Plaintiff has not pled ...

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