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Grigorescu v. Board of Trustees of San Mateo County Community College District

United States District Court, N.D. California

December 23, 2019

VIOLETA GRIGORESCU, Plaintiff,
v.
BOARD OF TRUSTEES OF THE SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT, et al., Defendants.

          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. 40-41

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. BACKGROUND [1]

         In 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 representatives”).

         Several 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.

         Mr. 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[2]-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.

         On 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.

         In 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. Id.

         In 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.

         Later 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.

         In May 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.

         In 2016, the District issued its first letter of suspension after Ms. Grigorescu notified the District about her teaching at San Francisco State University (“SFSU”).[3] 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.[4] 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.

         In January 2017, Ms. Grigorescu's employment was terminated, and she was banned from coming on campus until September 27, 2018. TAC ¶¶ 92-93.

         II. MOTION TO DISMISS

         A. Legal Standard

         Federal 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).[5] “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 marks omitted).

         B. Discussion

         1. Race-Based Termination (42 U.S.C. § 1981)

         To 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.

         However, 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 at 24.

         To the 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).

         Ms. 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 ...


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