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Ross v. White

United States District Court, C.D. California

July 1, 2019

CRAIG ROSS; NATALIE OPERSTEIN, Plaintiffs,
v.
TIMOTHY P. WHITE, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [265]

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Natalie Operstein sued over 50 defendants alleging various causes of action under the U.S. Constitution and federal law. Operstein's claims stem from California State University (“CSU”) denying Operstein a tenured position at CSU Fullerton (“CSUF”). The remaining Defendants[1] move for summary Judgment (“Motion”) on Operstein's remaining claims: (1) violation of her Fourteenth Amendment due process right as it relates to Defendants in their personal and official capacities terminating Operstein's employment despite her alleged lifetime contract and vested right to tenure; and (2) prospective injunctive relief against Defendants in their official capacities regarding CSU's alleged “Hispanization” policy. For the reasons that follow, the Court GRANTS Defendants' Motion.

         II. BACKGROUND

         A. Factual Background

         In June 2011, Dr. Natalie Operstein accepted a two-year, probationary appointment ("2011 Appointment”) as a tenure-track full-time Assistant Professor. (Defs.' Statement of Uncontroverted Facts (“DSUF”) 2-3, 9, 17, ECF No. 267; Decl. of Kristin K. Stang (“Stang Decl.”) ¶ 3, Ex. 6 (“2011 Appointment”), ECF No. 268.) The 2011 Appointment included the possibility of reappointment to a third, fourth, fifth, or sixth probationary year, or the grant of tenure. (DSUF 21.) Reappointment was “contingent upon the outcome of performance reviews.” (2011 Appointment 1.) According to the 2011 Appointment, “[t]enure track faculty are considered probationary faculty until they are awarded tenure or terminated.” (2011 Appointment 1-2.)

         Included with the 2011 Appointment was a copy of University Policy Statement 210.000 (“UPS”), which Operstein understood to be part of the offer and terms governing her employment. (DSUF 5.) UPS established the “policies and procedures that govern retention, promotion and granting of tenure (RTP) for probationary faculty.” (DSUF 8; Decl. of Mark Schreiber (“Schreiber Decl.”) ¶ 2, Ex. 35 (“UPS”) 3-5, ECF No. 268.) The 2011 Appointment also noted that “[e]ach faculty member is bound by state regulations, system-wide trustee/chancellor directives, the collective bargaining agreement [(“CBA”)], and CSUF policies and procedures.” Taylor, Tom Torlakson, Ofir Turel, Framroze Virjee, and Angela Della Volpe. (See Order Granting, in Part, Defs.' Mots. to Dismiss (“MTD Order”) 2 n.3, ECF No. 146.) (2011 Appointment 1.) Operstein understood these regulations and documents governed her employment. (2011 Appointment 2; Schreiber Decl. ¶ 5, State Ct. Dep. of Operstein (“Operstein State Dep.”) 32:8-11.)

         In February 2013, Operstein accepted appointment to a third probationary year. (DSUF 23; Stang Decl. ¶ 7, Ex. 9 (“2013 Appointment”).) She then applied for early tenure, but her application was rejected due to deficiencies in her portfolio and application. (Stang Decl. ¶ 8, Ex. 10 (“2014 Appointment”) 1.) In June 2014, Operstein accepted appointment to a fourth probationary year. (DSUF 25; 2014 Appointment.)

         The following year, Operstein again applied for early tenure. In June 2015, her application was denied and Operstein accepted reappointment to a terminal year, to end at the close of the 2015-2016 academic year. (See DSUF 26, 28; Stang Decl. ¶ 9, Ex. 21 (“2015 Terminal Appointment”).) The 2015 Terminal Appointment provided several reasons for the denial, including portfolio deficiencies, lack of collegiality, and insufficient progress for reappointment to a fifth probationary year. (2015 Terminal Appointment 1.) The 2015 Terminal Appointment informed Operstein that “a probationary faculty member who receives a terminal year has no further reappointment rights.” (2015 Terminal Appointment 2; DSUF 27 (emphasis added).) Operstein signed her acceptance of the terminal year appointment.[2] (2015 Terminal Appointment 2.) Following her terminal year, Operstein's employment at CSUF ended at the close of the 2015-2016 academic year. (DSUF 28.)

         B. Procedural Background

         Following her termination, Operstein and her husband, Craig Ross, sued various entities and individuals in this and related state and federal actions. See e.g., Ross, et al. v. Bd. of Trs. of Cal. State Univ., No. SC12558 (Cal. Super. Ct. filed May 15, 2016); Ross, et al. v. Bd. of Trs. of Cal. State Univ., No. 2:16-cv-3778-ODW (JCx) (C.D. Cal. filed May 31, 2016) (“Ross I Federal Case”).

         In this action, Operstein and Ross sued more than fifty various CSU employees and members of the Board of Trustees, among others, alleging civil rights violations deriving from CSUF's decision not to promote Operstein to a tenured position and its alleged “introduction, implementation, and approval of [a] racial ethnic change policy.” (See Second Am. Compl. (“SAC”) ¶ 3, ECF No. 102.) The Court addressed the extensive procedural history of this case in its previous Orders and incorporates that history herein by reference. (See, e.g., MTD Order; Order Granting Defs.' Mot. to Dismiss & Denying Second Mot. to Strike, ECF No. 258.) At this time, the action survives only as to Operstein's claims against Defendants for (1) violation of Operstein's Fourteenth Amendment due process right “as it relates to [Defendants], in their personal and official capacities, terminating Operstein's employment despite her alleged lifetime contract and vested right to tenure; and (2) prospective injunctive relief against [Defendants] in their official capacities.” (MTD Order 14, 17.)

         On October 31, 2018, Defendants moved for summary judgment on Operstein's remaining claims. (Mot. for Summ. J. (“Mot.”) 1, ECF No. 265.) Operstein opposed and requested additional time to complete discovery. (Corrected Opp'n to Mot. (“Opp'n”), ECF No. 284; Corrected Req. to Deny or Continue Summ. J. 2, ECF No. 286.) As discovery had not yet closed, the Court found that Operstein “should be permitted to conduct what discovery she may in the time allotted.” (Minute Order (“MO”), ECF No. 289.) Accordingly, the Court continued the Motion hearing from February 4, 2019, to May 20, 2019, and set a Status Conference at the close of discovery on April 29, 2019.

         At the Status Conference, the Court inquired into what discovery Operstein had propounded and what additional evidence she had obtained. (Minutes of Status Conference, ECF No. 297.) Operstein confirmed that she had propounded thousands of Requests for Admissions, hundreds of Requests for Production, and hundreds of Interrogatories. Despite this, on the morning of the Status Conference, Operstein moved for additional time to conduct even more discovery. (Mot. to Extend Discovery Cut-Off, ECF No. 292.) Operstein did not identify any specific additional evidence obtained beyond that previously submitted with her Opposition. The Court denied any further continuance and, after carefully considering the papers filed in connection with the Motion, deemed the matter appropriate for decision without oral argument. (MO, ECF No. 298); Fed.R.Civ.P. 78; C.D. Cal. L.R. 7-15.

         III. LEGAL STANDARD

         A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris,550 U.S. 372, 378 (2007). A disputed fact is “material” where the resolution of that fact might affect the outcome of the suit under the governing law, and the dispute is “genuine” where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co. v. GTE Corp.,594 F.2d 730, 738 (9th Cir. 1979). Moreover, though ...


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