United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS; AND GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO STRIKE DOCKET NOS.
M. CHEN UNITED STATES DISTRICT JUDGE
Violeta Grigorescu (“Ms. Grigorescu”) filed her
third amended complaint (“TAC”) against Eugene
Whitlock (“Mr. Whitlock”), the former Vice
Chancellor of Human Resources (“VCHR”) at the San
Mateo County Community College District (the
“District”). Docket No. 39. In previous
pleadings, Ms. Grigorescu raised claims against multiple
defendants (e.g., the District and various
supervisors in their individual capacity). See
Docket No. 1. The Court dismissed Ms. Grigorescu's first
and second amended complaints with leave to amend, permitting
Ms. Grigorescu to plead only two claims against Mr. Whitlock:
(1) race-based termination under Section 1981; and (2)
retaliatory harassment (First Amendment) claims under Section
1983. Pending before the Court is Mr. Whitlock's motion
to dismiss that pleading. Docket No. 41 (“Mot.”).
Mr. Whitlock also concurrently filed a motion to strike
certain factual allegations in TAC that support claims
previously dismissed with prejudice. Docket No. 40. For the
reasons discussed below, the Court GRANTS in
PART and DENIES in PART Mr.
Whitlock's motion to dismiss. Additionally, Mr.
Whitlock's motion to strike is GRANTED in
PART and DENIED in PART.
2004, Ms. Grigorescu was employed by the District as a
laboratory technician. TAC ¶ 17. In 2008, she became a
part-time, adjunct physics instructor. Id. In 2011,
Ms. Grigorescu organized a group called Friends of CSM
Gardens to oppose the conversion of an open-space garden into
a parking lot. According to Ms. Grigorescu, she
“organized students, contacted political figures, and
advised members of the CSM Garden Club to attend campaign
events of the President of the District's Board of
Trustees.” Id. ¶ 18. Ms. Grigorescu's
activities with Friends of CSM Gardens led to a lawsuit (the
“Friends lawsuit”). Id. ¶
19. Ultimately, the litigation made its way to the California
Supreme Court, and the court decided in favor of the
plaintiffs in July 2017. Id. While the litigation
was ongoing, in April 2011, the Board of Trustees openly
attacked faculty members and students who participated in the
Friends lawsuit. Id. ¶ 20 (“the
students were badly led by some faculty
days before filing of the Friends lawsuit in 2011,
Ms. Grigorescu began to have medical problems which required
treatment. TAC ¶ 21. Joel (then-VCHR, i.e. Mr.
Whitlock's predecessor) was resistant to her returning to
work and made efforts to prevent her return. Id.
¶¶ 22-24. After Ms. Grigorescu's union
intervened, she was allowed to resume her position as an
adjunct professor of physics. Id. ¶ 25. In
2013, Ms. Grigorescu began to have different medical problems
which required treatment, and Joel, Frontiera (Dean of the
District's Math and Science division), and the District
again made efforts to bar Ms. Grigorescu from working for the
District. Id. ¶¶ 28-32. Eventually, in
January 2014, Ms. Grigorescu was allowed to return to work as
a lab technician, but the District gave the class that Ms.
Grigorescu was scheduled to teach “to an instructor
with less seniority.” Id. ¶ 33.
Whitlock became VCHR in July 2014, although it is unclear
when he fully assumed the role. TAC ¶ 35 (After Mr.
Whitlock assumed the position, Joel remained active handling
number of issues for a while). Mr. Whitlock, as outside
County Counsel, previously represented the District in the
Friends lawsuit. Id. After Mr. Whitlock
assumed the VCHR position, a series of firings began, and
“[p]laintiff was among the first to be targeted and
fired.” Id. Within weeks after assuming the
VCHR position, Mr. Whitlock-either acting alone or with an
aid and assistance of Frontiera-subjected Ms. Grigorescu to
various discriminatory incidents or actions that had an
effect of isolating Ms. Grigorescu from her professional
community and preventing her from supporting the
Friends lawsuit. See id. ¶ 36. For
instance, according to the TAC, Mr. Whitlock attempted to
bypass Ms. Grigorescu's seniority right to which she was
entitled by the American Federation of Teachers union
contract. Id. ¶ 37.
August 4, 2014, Human Resource informed Ms. Grigorescu that
her pay was going to be less than in the past due to the
changes in HR policy that applies to employees holding both
faculty and staff positions. TAC ¶ 38. Ms. Grigorescu
subsequently was paid only the base rate for her work after
hours, while other similarly situated employees were paid
overtime. Id. Later in August, Ms. Grigorescu
obtained permission from Frontiera to take part in the UMOJA
community, an on-campus organization in support of minority
communities in the District. Id. ¶ 39.
Frontiera permitted Ms. Grigorescu to attend the September
2014 UMOJA gathering. Id. Three days after, however,
Frontiera told Ms. Grigorescu that she cannot just leave work
and participate in various events on campus. Id.
¶ 40. In following three weeks, Ms. Grigorescu consulted
with her union representatives. Id. ¶ 41.
Frontiera told Ms. Grigorescu's representatives that Ms.
Grigorescu could not attend UMOJA because Ms. Grigorescu is
white and UMOJA is for students of color. Id. ¶
42. Ms. Grigorescu was ultimately prevented from interacting
with UMOJA and, as a result, was unable to build her
extracurricular portfolio necessary to her professional
growth in the District. Id. ¶ 42. When
discussing the issues of unfair treatment, discrimination,
and lack of accommodations with Ms. Grigorescu's union
representatives, Frontiera stated that she was following Mr.
Whitlock's orders and that any conversation on the topic
had to be carried on in the presence of Mr. Whitlock and
Joel. Id. ¶ 43.
September 2014, Frontiera sent an e-mail to Ms. Grigorescu
that accused Ms. Grigorescu of “double-dipping”
her substitute teaching during her lab work hours. Upon Ms.
Grigorescu's denial, Frontiera asked Ms. Grigorescu to
provide official document showing her presence in the office.
TAC ¶ 44. Later, under the direction of Mr. Whitlock,
Frontiera banned Ms. Grigorescu from substitute teaching.
Id. ¶ 45. Frontiera nonetheless permitted
another lab technician to continue to teach who was a male,
not Romanian, and not involved in the Friends lawsuit.
October 2014, Frontiera informed Ms. Grigorescu that the dean
will consider Ms. Grigorescu's extracurricular activities
in evaluating her teaching performance. TAC ¶ 46. A few
days later, Frontiera submitted Ms. Grigorescu's teaching
performance evaluation where Frontiera marked lower
performance ratings without justification. Despite Ms.
Grigorescu's request of correction, Frontiera did not
erase the lower ratings, which were recorded in Ms.
Grigorescu's file. Id. ¶ 47.
in October 2014, for the first time in ten years, a full-time
physics professor position was approved by the District. Mr.
Whitlock changed the policy regarding the minimum
qualification for the position, in order to create
disadvantages to internal applicants like Ms. Grigorescu. TAC
¶ 48. Within days after Ms. Grigorescu applied for the
full-time position in May 2015, Mr. Whitlock removed Ms.
Grigorescu from the application pool for the full-time
physics position. Id. ¶ 49. With respect to Ms.
Grigorescu's educational credentials, Mr. Whitlock
claimed that she misrepresented her degree she received in
Romania as a master's degree, although the degree is only
equivalent to a bachelor's degree. Id. ¶
50. When Ms. Grigorescu responded that other universities had
recognized her Romanian degree as a master's, Mr.
Whitlock called each educational institution. Id.
¶ 51. As a result of Mr. Whitlock's calls, some
universities changed their designation of her degree from a
master's to bachelor's, and one university decided to
offer no teaching appointments for the following year.
Id. Later in 2015, Ms. Grigorescu was ultimately not
selected for the full-time teaching position despite her
qualification and teaching experience. See id.
¶¶ 52-61. Mr. Whitlock and Frontiera prevented Ms.
Grigorescu from teaching classes on the basis of Ms.
Grigorescu's physical injuries. See id.
¶¶ 62-63. Regarding her physical disabilities, Ms.
Grigorescu additionally alleges in TAC that other employees
were allowed to teach despite physical disabilities because
they were not Romanian and were not involved in the
Friends suit. Id. ¶ 63.
2015, Mr. Whitlock told Ms. Grigorescu that she would be
fired if she had not resigned. TAC ¶ 67. In TAC, Ms.
Grigorescu asserts that Mr. Whitlock's attempt to
terminate her was motived by the fact that Ms. Grigorescu is
Romanian and participated in the Friends lawsuit.
Id. Throughout 2015, the District attacked Ms.
Grigorescu's academic credentials without justification
and refused to accommodate her physical and emotional
disabilities. Id. ¶¶ 68-80.
2016, the District issued its first letter of suspension
after Ms. Grigorescu notified the District about her teaching
at San Francisco State University
(“SFSU”). TAC ¶ 81. After the District
retracted the first suspension, Mr. Whitlock reissued the
letter of suspension and proposed termination on the ground
that Ms. Grigorescu missed six consecutive Fridays without
prior approval. Id. ¶ 84. Mr. Whitlock also
attempted to reclassify Ms. Grigorescu as a temporary
employee who would not be eligible for grievance rights.
Id. ¶ 87. During a Skelly hearing in
November 2016, the hearing officer found Ms. Grigorescu was
entitled to accept the teaching appointment at SFSU to
mitigate her wage loss. Id. ¶ 91. The officer,
however, recommended termination of Ms. Grigorescu's
employment on the basis of Ms. Grigorescu's
misrepresentation of her math minor and her Baccalaureates
high school diploma. Id. ¶ 91.
January 2017, Ms. Grigorescu's employment was terminated,
and she was banned from coming on campus until September 27,
2018. TAC ¶¶ 92-93.
MOTION TO DISMISS
Rule of Civil Procedure 8(a)(2) requires a complaint to
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A complaint that fails to meet this
standard may be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To
overcome a Rule 12(b)(6) motion to dismiss after the Supreme
Court's decisions in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), a plaintiff's “factual allegations
[in the complaint] ‘must . . . suggest that the claim
has at least a plausible chance of success.'”
Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir.
2014). 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). But “allegations in a complaint . . .
may not simply recite the elements of a cause of action [and]
must contain sufficient allegations of underlying facts to
give fair notice and to enable the opposing party to defend
itself effectively.” Levitt, 765 F.3d at 1135
(internal quotation marks omitted). “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.”
Iqbal, 556 U.S. at 678. “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
Race-Based Termination (42 U.S.C. § 1981)
establish a race-based termination claim, a plaintiff must
show that (1) she was a member of a protected group; (2) she
was qualified for the position; (3) she was discharged or
suffered an adverse employment action; and (4) similarly
situated, non-protected employees were treated more
favorably. McDonnel Douglas Corp v. Green, 411 U.S.
792, 802 (1973). The Court previously found that Ms.
Grigorescu alleged the first three elements. See
Order at 12. With regard to (4), however, the Court found
that Ms. Grigorescu failed to show that similarly situated,
non-protected employees were treated more favorably.
Id. The Court specifically pointed that Ms.
Grigorescu did not allege that her replacement was hired at
or close in time to her termination:
As to (4), [Ms. Grigorescu] alleges that an individual of a
different race and inferior qualifications filled her
position. Her replacement was not Romanian, recently received
a master's degree, and had less teaching experience.
[citation omitted.] However, [Ms. Grigorescu] did not allege
that her alleged replacement was hired at or close in time to
her termination. If there was a substantial gap of time
between her termination and subsequent replacement, the new
person may not be similarly situated, and thus inference of
race-based termination will be problematic.
Id. With that, the Court instructed Ms. Grigorescu
to “set forth factual allegations that her replacement
assumed her prior position in a timeframe that would lead to
a reasonable inference of discrimination, provided that she
can do consistent with Rule 11.” Id.
Ms. Grigorescu's TAC contains no additional facts as to
the time gap between her termination and the hiring of her
replacement. Instead, Ms. Grigorescu repeats her claims
asserting Mr. Whitlock's violation of Section 1981,
including claims for race-based harassment that were
previously dismissed without leave to amend. See
Order at 14. Although the Court in its last Order granted
leave to amend only to her race-based termination claims, Ms.
Grigorescu realleges her Section 1981 claims
altogether-race-based termination and race-based
harassment-under the title of “Race-Based Harassment
(42 United States Code § 1981).” See TAC
extent she attempts to replead, Ms. Grigorescu's Section
1981 race-based harassment claim remains DISMISSED
with prejudice. See Tavake v. Alameda County Bd.
Of Supervisors, 2005 WL 2290308 at *3 (N.D. Cal. Sep.
20, 2005) (dismissing a claim with prejudice that was
previously dismissed with prejudice); Rodriguez v. L.A.
Cty. Sheriff's Dep., 2014 WL 12703416 at *2 (C.D.
Cal. July 7, 2014) (granting a motion to dismiss, noting that
Plaintiff erroneously realleges claims against Defendant that
the Court previously dismissed without leave to amend).
Grigorescu renewed many race-based harassment factual
allegations in support for her unlawful termination claim.
These allegations, as found previously, are conclusory and do
not lead to a reasonable inference they were based on race or
national origin. Plaintiff failed to respond to ...