United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS RE: DKT. NO. 41
H. KOH UNITED STATES DISTRICT JUDGE.
Joseph Ryan (“Plaintiff”) sues Defendants Santa
Clara Valley Transportation Authority (“SCVTA”)
and Joseph Fabela (“Fabela”) (collectively,
“Defendants”). ECF No. 37. Before the Court is
Defendants' motion to dismiss. ECF No. 41
(“Mot.”). Having considered the submissions of
the parties, the relevant law, and the record in this case,
the Court hereby GRANTS in part and DENIES in part
Defendants' motion to dismiss.
“is an independent special district agency that
provides” public transportation services in Santa Clara
County, California. ECF No. 37 (Second Amended Complaint, or
“SAC”), ¶¶ 10, 23. Fabela is the
General Counsel for SCVTA. Id. ¶ 8. Plaintiff
was employed at SCVTA in the position of Senior Assistant
Counsel. Id. ¶ 23.
also employed an individual named David Terrazas
(“Terrazas”). Id. ¶ 26. Plaintiff
“complained to management” during his time at
SCVTA “that Terrazas was incompetent.”
Id. According to the SAC, “[t]he fact that
Terrazas was a poor performer was widely known by management
and recognized by [Fabela] and legal staff” at SCVTA.
was also a member of the Santa Cruz City Council.
Id. ¶ 27. In June 2014, Plaintiff
“published for one day an internet webpage entitled
‘Anyone But Terrazas For City Council.'”
Id.¶¶ 28, 45. Plaintiff published this on
his Facebook page. Id. ¶ 41. Plaintiff's
posting was “critical of Terrazas' campaign for
re-election to City Council in 2014, ” and Plaintiff
“cite[d] some misrepresentations listed on
Terrazas' campaign web page, including the
misrepresentation that Terrazas was a ‘Transportation
Manager, ' rather than the true fact that he was a
‘Labor Relations Supervisor'” at SCVTA.
Id. ¶ 28. Plaintiff alleges that Plaintiff made
the speech “on his own time, at night after working
hours, using his own computer equipment.” Id.
¶¶ 29, 43.
February 2015, Terrazas alleged that SCVTA and Plaintiff
“retaliated against Terrazas for whistleblower
activity.” Id. ¶ 26-27. The SAC does not
identify Terrazas's “whistleblower activity,
” or how Terrazas was retaliated against.
February 2015, Plaintiff informed Fabela that Plaintiff had
made the webpage posting about Terrazas in June 2014.
Id. ¶ 29. Fabela “was provided with a
printout of the webpage.” Id. Plaintiff
“informed [Fabela] that the webpage was protected
off-duty political activity.” Id. Fabela did
not take any action against Plaintiff at that time.
3, 2015, Terrazas entered into a settlement agreement with
SCVTA regarding the retaliation that Terrazas allegedly
suffered. Id. ¶ 30. Nuria Fernandez
(“Fernandez”), the General Manager of SCVTA,
signed the settlement agreement with Terrazas on June 5,
same day, June 5, 2015, Fabela “informed [Plaintiff]
that he would be terminated by [SCVTA] or that he could
retire, but that [Plaintiff] must leave the office that
day.” Id. ¶ 31. “When [Plaintiff]
asked [Fabela] why” he was being terminated, Fabela
“replied that the action was taken for reasons
previously discussed, referring to the previous discussion
regarding Mr. Ryan's aforementioned webpage.”
Id. ¶ 31.
further alleges that Plaintiff is Caucasian, over the age of
40, and that he “suffered from a medical
condition” during his employment that
“substantially limited his ability to sleep, walk,
stand, lift, bend, concentrate, tolerate substandard
performance by coworkers and perform manual tasks at work and
at home.” Id. ¶ 33-34.
filed suit on July 18, 2016, against SCVTA, Fabela, and
Fernandez. ECF No. 1. Plaintiff's complaint alleged 22
causes of action against Defendants, including claims under
42 U.S.C. § 1983; Title VII of the Civil Rights Act of
1964 (“Title VII”); the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621;
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101; and violations of California state law.
September 29, 2016, the parties filed a stipulation regarding
Plaintiff's filing of a First Amended Complaint. ECF No.
18. Specifically, the parties agreed that Plaintiff would
dismiss Fernandez with prejudice, that Plaintiff would
“[r]emove any and all allegations that Plaintiff was
entitled to a ‘Skelly' hearing, and that
[SCVTA]'s failure to provide Plaintiff a
‘Skelly' hearing constituted a due process
violation.” Id. Plaintiff also stipulated to
dismiss the Complaint's twentieth cause of action.
Id. The Court entered an Order granting the
parties' stipulation on September 30, 2016. ECF No. 19.
October 17, 2016, Plaintiff filed a First Amended Complaint.
ECF No. 26. On that same day, Plaintiff filed a notice of
voluntary dismissal of Fernandez, ECF No. 27, which this
Court granted on October 19, 2016, ECF No. 29.
November 9, 2016, the parties filed a stipulation regarding
Plaintiff's filing of a SAC, ECF No. 32, which the Court
granted that same day, ECF No. 34.
December 14, 2016, Plaintiff filed the SAC. The SAC alleged
13 causes of action against Defendants, including claims
under § 1983 for violation of Plaintiff's First
Amendment rights, claims under § 1983 for violation of
Plaintiff's Fourteenth Amendment rights, claims under
Title VII and FEHA for racial discrimination and retaliation,
claims under the ADEA and California's Fair Housing and
Employment Act (“FEHA”) for age discrimination,
claims under the ADA and FEHA for disability discrimination,
and a claim for violation of California Government Code
January 13, 2017, Defendants filed a motion to dismiss the
SAC or, in the alternative, a motion for more definite
statement or a motion to strike. ECF No. 41
(“Mot.”). On January 27, 2017, Plaintiff filed an
opposition and a request for judicial notice. ECF Nos. 47
& 48. On February 3, 2017, Defendants filed a Reply, a
request for judicial notice, and oppositions to
Plaintiff's request for judicial notice. ECF Nos. 49, 50,
Motion to Dismiss Under Rule 12(b)(6)
to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss an action for failure to allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (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. 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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citation omitted).
purposes of ruling on a Rule 12(b)(6) motion, the 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). 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 a
“court 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 (9th Cir. 2011). 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).
Leave to Amend
Court concludes that a motion to dismiss should be granted,
it must then decide whether to grant leave to amend. Under
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend “shall be freely given when justice so requires,
” bearing in mind “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) (citation
omitted). Nonetheless, a district court may deny leave to
amend a complaint due to “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” See
Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522,
532 (9th Cir. 2008).
move to dismiss all 13 claims raised in the SAC.
Plaintiff's claims may be grouped into the following
categories: (1) claims under § 1983 for violation of the
First Amendment; (2) a claim under California Government Code
§ 3203; (3) claims under § 1983 for violation of
the Fourteenth Amendment; (4) claims for racial
discrimination; (5) claims for age discrimination; (6) claims
for disability discrimination; and (7) claims for retaliation
for reporting racial discrimination. Defendant also moves to
dismiss Plaintiff's request for punitive damages. The
Court addresses each of Defendants' arguments below in
Section 1983 Claims for Violation of the First
One and Two of Plaintiff's SAC allege that Defendants
violated § 1983 by terminating Plaintiff in retaliation
for Plaintiff's exercise of his First Amendment right to
free speech. SAC ¶¶ 36-74. Plaintiff brings a
claim against Fabela in his individual capacity, and a claim
against SCVTA based on Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978). Id. The Court
first considers Plaintiff's claim against Fabela, and
then the Court considers Plaintiff's § 1983 claim
against SCVTA under Monell.
Claim against Fabela in his Individual Capacity
One of Plaintiff's SAC alleges that Fabela violated the
First Amendment by terminating Plaintiff in retaliation for
Plaintiff posting the “Anyone But Terrazas For City
Council” webpage. SAC ¶ 47. According to
Defendants, Plaintiff's claim against Fabela must be
dismissed because Plaintiff has failed to plausibly allege a
First Amendment retaliation claim. Mot. at 5-13. Defendants
also assert that Fabela is entitled to qualified immunity.
Id. at 17. The Court first addresses whether
Plaintiff has stated a plausible claim against Fabela for
First Amendment retaliation, and then the Court considers
whether Fabela is entitled to qualified immunity.
Whether Plaintiff has Stated a Plausible Claim against Fabela
for First Amendment Retaliation
First Amendment shields public employees from employment
retaliation for their protected speech activities.”
Hagen v. City of Eugene, 736 F.3d 1251, 1257 (9th
Cir. 2013). The Ninth Circuit “follow[s] a sequential
five-step inquiry to determine whether an employer
impermissibly retaliated against an employee for engaging in
protected speech.” Ellins v. City of Sierra
Madre, 710 F.3d 1049, 1056 (9th Cir. 2013).
“First, the plaintiff bears the burden of showing: (1)
whether the plaintiff spoke on a matter of public concern;
(2) whether the plaintiff spoke as a private citizen or
public employee; and (3) whether the plaintiff's
protected speech was a substantial or motivating factor in
the adverse employment action.” Id. (quoting
Robinson v. York, 566 F.3d 817, 822 (9th Cir. 2009)
(internal quotation marks and citations omitted).
“Next, if the plaintiff has satisfied the first three
steps, the burden shifts to the government to show: (4)
whether the state had an adequate justification for treating
the employee differently from other members of the general
public; and (5) whether the state would have taken the
adverse employment action even absent the protected
argue that Plaintiff has failed to allege the first three
steps of this inquiry: that Plaintiff “spoke on a
matter of public concern, ” that Plaintiff “spoke
as a private citizen, ” or that Plaintiff's
“protected speech was a substantial or motivating
factor” in Plaintiff's termination.
Ellins, 710 F.3d at 1056; see Mot. at 6-13.
The Court considers each of these steps below.
Matter of Public Concern
Court first considers whether Plaintiff has adequately
alleged that Plaintiff's “Anyone But Terrazas For
City Council” webpage “spoke on a matter of
public concern.” Ellins, 710 F.3d at 1056.
“Speech involves a matter of public concern when it can
fairly be considered to relate to ‘any matter of
political, social, or other concern to the
community.'” Johnson v. Multnomah Cty., 48
F.3d 420, 422 (9th Cir. 1995) (quoting Connick v.
Myers, 461 U.S. 138, 146 (1983)). By contrast, when a
public employee speaks “upon matters only of personal
interest . . . a federal court is not the appropriate forum
in which to review the wisdom of a personnel decision taken
by a public agency allegedly in reaction to the
employee's behavior.” Connick, 461 U.S. at
Ninth Circuit has recognized that “[t]he scope of the
public concern element is defined broadly in recognition that
one of the fundamental purposes of the first amendment is to
permit the public to decide for itself which issues and
viewpoints merit its concern.” Ulrich v. City and
Cty. of San Francisco, 308 F.3d 968, 978 (9th Cir.
2002). “It is only ‘when it is clear that . . .
the information would be of no relevance to the
public's evaluation of the performance of governmental
agencies' that speech of government employees receives no
protection under the First Amendment.” Id.
(quoting Pool v. VanRheen, 297 F.3d 899, 907 (9th
Cir. 2002)). The Ninth Circuit has found that speech is not
of public concern where it reflects “the minutiae of
workplace grievances, ” Havekost v. U.S. Dep't
of Navy, 925 F.2d 316, 319 (9th Cir. 1991), or
“individual personnel disputes.” McKinley v.
City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). In
determining whether speech addresses a matter of public
concern, the Court must look to “the content, form, and
context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147-48.
For the reasons discussed below, the Court finds that the
alleged “content, form, and context” of
Plaintiff's speech plausibly suggest that Plaintiff spoke
on a matter of public concern. See id.
the Court considers the alleged “content” of
Plaintiff's speech. Plaintiff alleges that he posted a
webpage entitled “Anyone But Terrazas For City Council,
” that was “critical of Terrazas' campaign
for re-election to City Council.” SAC ¶ 28.
Plaintiff further alleges that he “cit[ed] some
misrepresentations listed on Terrazas' campaign web page,
including the misrepresentation that Terrazas was a
‘Transportation Manager, ' rather than the true
fact that he was a ‘Labor Relations
Supervisor.'” Id. This alleged
“content, ” which was about a local
candidate's campaign for public office, plausibly
suggests that Plaintiff spoke on a “matter of
political, social, or other concern to the community.”
See Johnson, 48 F.3d at 422 (internal quotation
marks omitted); Wiggins v. Lowndes Cty., Miss., 363
F.3d 387, 390 (5th Cir. 2004) (“Political speech
regarding a public election lies at the core of matters of
public concern protected by the First Amendment.”).
the Court considers the alleged “form” and
“context” of Plaintiff's speech. “The
relevant inquiry is the point of the speech in
question.” Lopez v. City & Cty. of San
Francisco, 2014 WL 2943417, at *6 (N.D. Cal. June 30,
2014) (citing Roth v. Veteran's Admin. of U.S.,
856 F.2d 1401, 1406 (9th Cir. 1988)). Here, Plaintiff alleges
that Plaintiff posted the webpage on a public forum, the
internet, “to shed light on the candidate's
wrongdoing for the public.” Id. ¶ 41.
Moreover, Plaintiff alleges that his speech was intended to
be “about a candidate running for public office.”
Id. Taken as true, these ...