1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 David Cohen, No. CV-21-01178-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 Arizona State University, et al.,
13 Defendants. 14 15 16 Before the Court is Arizona State University (“ASU”), Raymond Anderson (“Mr. 17 Anderson”), and the Arizona Board of Regents’ (“ABOR,” and collectively “Defendants”) 18 12(b)(6) Motion to Dismiss First Amended Complaint (Doc. 14). For the following 19 reasons, Defendants’ motion is granted in part and denied in part.1 20 BACKGROUND 21 The following allegations from the First Amended Complaint (“FAC”) are 22 construed in the light most favorable to Plaintiff. David Cohen (“Plaintiff”) served as the 23 Senior Associate Athletic Director at ASU from June 2014 through December 2019. (Doc. 24 13 ¶ 2.) For most of his tenure, Plaintiff reported to Mr. Anderson, ASU’s Vice President 25 for University Athletics. Id. ¶¶ 5, 19. ABOR is the governing body for Arizona’s public 26 university system, including ASU. Id. ¶ 18.
27 1 The Defendants’ request for oral argument is denied because they have had an adequate opportunity to discuss the law and evidence, and oral argument will not aid the Court’s 28 decision. See Lake at Las Vegas Invs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991). 1 As Senior Associate Athletic Director, Plaintiff was responsible for “overseeing 2 ticketing for all ASU athletics, and the day-to-day operations of the men’s basketball and 3 ASU swimming and diving programs.” Id. ¶ 20. In his role, Plaintiff was also a mandatory 4 reporter, obligated to report “any sexual harassment he witnessed in his role.” Id. ¶ 21. To 5 that end, Plaintiff was trained annually on his reporting obligations. Id. ¶ 22. He was 6 trained to report “any sexual assault or harassment of which” he became aware in his role, 7 regardless of whether the victims and perpetrators were “employees, students, or other 8 members of the ASU community.” Id. ¶ 23. During a training led by Mr. Anderson, Mr. 9 Anderson recounted that a prominent donor had been recently reprimanded for sexual 10 harassment. Id. ¶ 27. The trainings repeatedly stressed the “mandatory nature of this 11 reporting obligation.” Id. ¶ 26. Plaintiff was informed that if he made a report, he would 12 be protected from retaliation. Id. However, if Plaintiff failed to make a report, he would 13 face punishment up to and including termination. Id. 14 Bart Wear (“Mr. Wear”) was a prominent donor to ASU athletics who shared a close 15 relationship with Mr. Anderson. Id. ¶¶ 30, 34. Due to his history as a donor, ASU granted 16 Mr. Wear wide-ranging access to ASU athletics facilities and events. Id. ¶ 30. Mr. Wear 17 could travel with ASU teams and attend ASU practices, and had “[e]xclusive and 18 seemingly unfettered access to ASU practice facilities, coaches’ offices and training 19 facilities, including the team locker rooms.” Id. Mr. Wear also “supported Mr. Anderson 20 throughout his tenure,” and Mr. Anderson told Plaintiff “to grant Mr. Wear access to ASU 21 athletics programs because he ‘writes checks.’” Id. ¶ 34. 22 On March 14, 2019, Mr. Wear was ASU’s guest at the PAC-12 NCAA Men’s 23 Basketball tournament in Las Vegas, Nevada. Id. ¶ 31. Mr. Wear sat in a section where 24 seats were “only made available to ASU staff, family, and prominent donors.” Id. ¶ 31. 25 There, Mr. Wear sexually harassed two women. Id. ¶ 28. One of those women was 26 Plaintiff’s wife. Id. Mr. Wear also sexually harassed another woman “on several [other] 27 occasions” at an ASU Men’s Basketball home game at the Wells Fargo Arena, and had 28 been removed from “at least one ASU basketball game” for belligerent conduct involving 1 women after consuming alcohol. Id. ¶¶ 29, 37. 2 Plaintiff reported Mr. Wear’s conduct to Mr. Anderson at a meeting on March 25, 3 2019. Id. ¶ 33. Also present was Scott Nelson (“Mr. Nelson”), who appears to have been 4 involved in some capacity with the Sun Devil Club, which as alleged in the FAC appears 5 to have a donor-relations function for ASU athletics. Id. ¶¶ 33, 52. At that meeting, 6 Plaintiff reported that Mr. Wear had inappropriately touched Plaintiff’s wife in Las Vegas. 7 Id. ¶ 33. Plaintiff also reported Mr. Wear’s sexual harassment of another woman at Men’s 8 Basketball home games on ASU’s campus. Id. ¶ 35. Mr. Anderson told Plaintiff that he 9 would address Mr. Wear’s conduct as he found it unacceptable and indicated that ASU had 10 recently addressed a similar situation with another donor. Id. ¶¶ 35–36. Mr. Anderson, 11 however, did not take any action with respect to Mr. Wear’s conduct. Id. ¶ 35. 12 News of Mr. Wear’s conduct spread. Rick Shangraw, CEO of ASU Enterprise 13 Partners, learned of it in early April 2019, and told Mr. Anderson it was “inappropriate and 14 unacceptable.” Id. ¶ 38. Jay Heiler, a member of ABOR, learned of the allegations and 15 Mr. Anderson’s decision not to further investigate in mid-April. Id. ¶ 39. ASU’s Deputy 16 Athletics Director, Jean Boyd, learned of the conduct on April 22. Id. ¶ 40. 17 On May 3, 2019, Plaintiff told Mr. Anderson that he was concerned about Mr. 18 Wear’s attendance at an upcoming event where alcohol would be served. Id. ¶ 41. In 19 Plaintiff’s opinion, Mr. Wear posed a “danger to those around him” when he consumed 20 alcohol, and his presence at the event put members of the ASU community in harm’s way. 21 Id. Mr. Anderson told Plaintiff to stay away from the event if he felt uncomfortable. Id. 22 On May 20, 2019, Plaintiff discussed Mr. Wear’s conduct with Mr. Boyd. Id. ¶ 43. 23 Plaintiff indicated he was displeased that Mr. Anderson had not taken further action. Id. 24 Mr. Boyd subsequently told Mr. Anderson he was required to “respond and report” 25 Plaintiff’s complaint about Mr. Wear. Id. ¶ 44. Mr. Anderson was again reminded of 26 Plaintiff’s complaint in June 2019, when Mr. Shangraw informed him that it had been 27 inappropriate to take a golfing trip with Mr. Wear and other ASU employees in May. Id. 28 ¶ 47. Mr. Anderson represented that he planned to “take care of” Mr. Wear’s conduct at 1 the end of the summer, after both his and Mr. Wear’s planned vacations. Id. 2 Plaintiff’s annual performance review took place on June 13, 2019. Id. ¶ 62. At 3 this review, he was informed that he would no longer be responsible for administrating the 4 ASU swimming program, and that he was to dedicate more focus on ticketing. Id. ¶ 63. 5 After his review, Mr. Anderson told Plaintiff that there would be “changes” in the athletic 6 department. Id. ¶ 64. Plaintiff asked Frank Ferrara, the Senior Associate Athletic Director 7 and Chief Financial Officer, whether these changes would involve Plaintiff reporting to 8 Mr. Ferrara. Id. Mr. Ferrara “said that if [Plaintiff] reported to him, he would fire him the 9 next day.” Id. 10 On June 19, 2019, Plaintiff’s bonus structure changed. Mr. Anderson informed him 11 that his new bonus structure was entirely at Mr. Anderson’s discretion, and that he could 12 find alternative employment if he did not like the change. Id. ¶ 65. Plaintiff agreed to the 13 change, after which point “nearly 40% of his overall compensation was completely at Mr. 14 Anderson’s discretion.” Id. That same day, Plaintiff again discussed his concerns about 15 Mr. Wear with Mr. Boyd. Id. ¶ 48. Plaintiff subsequently reminded Mr. Anderson about 16 his concerns about Mr. Wear twice in July, on July 5 and 24. Id. ¶¶ 49–50. 17 On August 12, 2019, Plaintiff was informed that he would now report to Mr. Ferrara. 18 Id. ¶ 66. Plaintiff told Mr. Anderson that he viewed this, combined with the change in 19 bonus structure and alteration of his job responsibilities, as retaliation for reporting Mr. 20 Wear’s conduct. Id. In response, Mr. Anderson asserted that Plaintiff had not reported Mr. 21 Wear’s conduct until three months after the basketball season, when Plaintiff alleges to 22 have done so days after the PAC-12 tournament. Id. ¶ 67. Mr. Anderson then asked 23 Plaintiff why he hadn’t taken any action about Mr. Wear. Id. Plaintiff told Mr. Anderson 24 that by reporting Mr. Wear’s conduct to him, Plaintiff had acted as he believed was required 25 by ASU’s sexual harassment training. Id. Mr. Anderson then said that “neither [Plaintiff] 26 nor Mr. Shangraw was going to tell him how or when to ‘talk to a[n] [expletive] donor.’” 27 Id. 28 Plaintiff met with two HR officials in the subsequent days, where he was told it 1 appeared he was being retaliated against for reporting Mr. Wear’s conduct and demanding 2 an investigation. Id. ¶ 68. He also met with Mr. Shangraw and James Rund, a Senior Vice 3 President at ASU. Id. ¶ 69. Both individuals indicated that retaliation appeared to be the 4 likely explanation. Id. 5 Mr. Anderson attempted to terminate Plaintiff’s employment on August 15, 2019. 6 Id. ¶ 70. Mr. Anderson believed termination was appropriate because Plaintiff was not a 7 “team player” or “cultural fit.” Id. Plaintiff was subsequently informed he was not 8 terminated, but rather placed on administrative leave. Id. 9 After Plaintiff was placed on administrative leave, he formally complained to ASU 10 about his treatment. Id ¶ 51. ASU subsequently opened an investigation into Mr. Wear. 11 Id. During the investigation, Mr. Wear continued to attend ASU events. Id. ¶ 52. The 12 investigation determined that Mr. Wear had sexually harassed three women, including 13 Plaintiff’s wife, on three separate occasions. Id. ¶ 56. After ASU completed the report in 14 November 2019, Mr. Wear was given courtside seats at an ASU basketball game in 15 December 2019. Id. 16 Plaintiff was eventually terminated on December 12, 2019, effective December 13. 17 Id. He filed a charge of retaliation with the EEOC on March 12, 2020. Id. ¶ 9. Under a 18 work sharing agreement, the Civil Rights Division of the Arizona Attorney General’s office 19 also received his charge. Id. Plaintiff exchanged calls and emails with the EEOC through 20 July 8, 2020, when he submitted his reply to ASU’s Position Statement. Id. ¶ 11. He did 21 not hear from the EEOC again until 2021, when he followed up on the status of his case in 22 late January. Id. ¶ 12. Plaintiff learned in February 2021 that his charge was being handled 23 by the EEOC’s Los Angeles office. Id. When contacted, the Los Angeles office informed 24 Plaintiff that it had not begun its investigation of his charge. Id. ¶ 13. Plaintiff requested 25 a right to sue letter, which he received on May 4, 2021. Id. ¶ 14. Plaintiff filed his initial 26 complaint on July 7, 2021, which he subsequently amended. (Doc. 1); (Doc. 13.) The 27 FAC seeks relief under three causes of action: (1) retaliation under Title VII of the Civil 28 Rights Act of 1964, (2) wrongful termination in violation of public policy under Arizona 1 law, and (3) retaliation under Title IX of the Education Amendments of 1972. (Doc. 13 at 2 21–23.) 3 DISCUSSION 4 I. Legal Standard 5 Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short and 6 plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 7 8(a), so that the defendant receives “fair notice of what the . . . claim is and the grounds 8 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley 9 v. Gibson, 355 U.S. 41, 47 (1957)). To survive dismissal for failure to state a claim 10 pursuant to Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions 11 in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Twombly, a plaintiff’s factual allegations in 12 the complaint “must . . . suggest that the claim has at least a plausible chance of success.” 13 Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting In re Century Aluminum 14 Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013)). Factual allegations in the complaint 15 are accepted as true and the pleading is construed “in the light most favorable to the 16 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 17 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the elements of 18 a cause of action [and] must contain sufficient allegations of underlying facts to give fair 19 notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 20 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th 21 Cir. 2014)). Further, legal conclusions couched as factual allegations are not given a 22 presumption of truthfulness, and “conclusory allegations of law and unwarranted 23 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 24 696, 699 (9th Cir. 1998). 25 II. Analysis 26 A. State Law Claims 27 Defendants argue Plaintiff’s state law claim should be dismissed as barred by the 28 statute of limitations. (Doc. 14 at 11.) “When a district court sits in diversity, or hears 1 state law claims based on supplemental jurisdiction, the court applies state substantive law 2 to the state law claims.” Mason & Dixon Intermodal, Inc. v. Lapmaster Int’l LLC, 632 3 F.3d 1056, 1060 (9th Cir. 2011). State substantive law includes the state statute of 4 limitations. Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011). Federal 5 courts must also “abide by a state’s tolling rules, which are integrally related to statutes of 6 limitations.” Id. In Arizona, a statute of limitations defense may be raised on a motion to 7 dismiss “if it appears on the face of the complaint that the claim is barred.” Republic Nat’l 8 Bank of N.Y. v. Pima Cnty., 200 Ariz. 199, 204, 25 P.3d 1, 6 (Ct. App. 2001). “However, 9 courts disfavor statute of limitations defenses, preferring instead to resolve litigation on the 10 merits when possible.” City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 178, 11 181 P.3d 219, 225 (Ct. App. 2008). 12 At the outset, the parties appear to dispute whether the second cause of action in the 13 FAC arises under the Arizona Employment Protection Act’s (“AEPA”) protections against 14 retaliatory wrongful termination in violation of public policy, Ariz. Rev. Stat. 15 § 23-1501(A)(3)(c); (Doc. 13 ¶ 82), or the Arizona Civil Rights Act (“ACRA”), Ariz. Rev. 16 Stat. §§ 41-1461–1468. (Doc. 13 ¶¶ 1, 83, 84, 86.) Both statutes carry a one-year 17 limitations period, but the relevant provisions are worded differently. Compare Ariz. Rev. 18 Stat. § 12-541 (imposing one year statute of limitation for both claims for “wrongful 19 termination” and “[u]pon a liability created by statute”) with Ariz. Rev. Stat. § 41-1481(D) 20 (providing that for ACRA claims, “[i]n no event shall any action be brought pursuant to 21 this article more than one year after the charge to which the action relates has been filed.”). 22 Plaintiff’s state law claim is time-barred under either theory. Plaintiff was 23 terminated effective December 13, 2019, (Doc. 13 ¶ 70), and filed his claim with the EEOC 24 and the Arizona Attorney General on March 12, 2020. (Doc. 13 ¶ 9.) If the AEPA applies, 25 the cause of action accrued on the date of his termination and lapsed on December 13, 26 2020. If the ACRA applies, he needed to file suit by March 12, 2021. Plaintiff filed suit 27 in this Court on July 7, 2021. (Doc. 1.) Under either theory, it is apparent from the face 28 1 of the complaint that Plaintiff’s state law claim is untimely.2 2 Nor does equitable tolling apply. As to the ACRA, its indication that “[i]n no event 3 shall any action be brought pursuant to this article more than one year after the charge to 4 which the action relates has been filed,” appears to foreclose any tolling. Ariz. Rev. Stat. 5 § 41-1481(D) (emphasis added). Moreover, several federal cases applying the ACRA have 6 refused to apply equitable tolling when the reason for the delay was belated notification of 7 the right to sue. See, e.g., Wood v. Univ. Physicians Healthcare, No. CV-13-00063-PHX- 8 JAT, 2014 WL 3721207, at *13 (D. Ariz. July 28, 2014); Strand v. John C. Lincoln Health 9 Network, Inc., No. CV-10-02112-PHX-NVW, 2011 WL 1253408, at *2 (D. Ariz. Mar. 31, 10 2011); Enriquez v. Gemini Motor Transp. LP, No. CV 19-04759-PHX-GMS, 2021 WL 11 5908208, at *6 (D. Ariz. Dec. 14, 2021).3 12 However, even assuming equitable tolling did apply, Plaintiff has failed to show 13 why it is appropriate in this case. Plaintiff’s justification for the delay is that the EEOC 14 did not process his charge in a timely fashion because of the COVID-19 pandemic. (Doc. 15 13 ¶¶ 10–14); (Doc. 15 at 17.) Plaintiff submitted his charge on March 12, 2020. Under 16 federal law, Plaintiff could have requested his notice of right to sue from the EEOC after 17 his charge had been pending 180 days. 42 U.S.C. § 2000e-5(f)(1); see also Smith v. 18 Johnson, No. C 11–4823 MMC, 2012 WL 1438898, at *2 (N.D. Cal. Apr. 25, 2012) 19 (“Before filing a complaint under Title VII, a plaintiff ordinarily files a charge with the 20 [EEOC] and, if . . . the EEOC fails to so act on the charge within 180 days, the plaintiff 21 may file suit without such letter.”). Consequently, Plaintiff was eligible to request a notice 22 of right to sue on September 8, 2020. Plaintiff offers no explanation for why he failed to 23 request such a notice from the EEOC until “late January 2021.” (Doc. 1 ¶ 12.) In the 24 2 Because Plaintiff does not argue that the discovery rule operates to defer the date his state 25 law claim accrued under either the ACRA or the AEPA, the Court does not address its applicability in this Order. 26 3 Salgado v. Atlantic Richfield Co., 823 F.2d 1322, 1324–25 (9th Cir. 1987), is inapposite 27 because the court was interpreting California law, which did not include the “in no event” language present in Ariz. Rev. Stat. § 41-1481. Id. at 1324 n.1; 1984 Cal. Stat. 1792. 28 Moreover, the California statute of limitations was based on when the notice of the right to sue was issued, not when the charge was filed. 823 F.2d at 1324 n.1; 1984 Cal. Stat. 1792. 1 absence of such justification, the Court will not apply equitable tolling. As it is untimely, 2 Plaintiff’s state-law cause of action is dismissed with leave to amend should Plaintiff wish 3 to plead additional facts in support of equitable tolling. 4 B. Federal Claims 5 Defendants argue Plaintiff’s federal retaliation claims should be dismissed because 6 Plaintiff did not engage in protected activity under either Title VII or Title IX. (Doc. 14 at 7 4, 9.) 8 1. Title VII 9 To make a prima facie showing of retaliation under Title VII, an employee must 10 establish that (1) they engaged in a protected activity, (2) they were subjected to an adverse 11 employment action, and (3) the “employer would not have taken the adverse employment 12 action but for a design to retaliate.” Maner v. Dignity Health, 350 F. Supp. 3d 899, 906 13 (D. Ariz. 2018), aff’d, 9 F.4th 1114 (9th Cir. 2021); Nilsson v. City of Mesa, 503 F.3d 947, 14 954 (9th Cir. 2007). 15 a. Protected Activity 16 An employee engages in protected activity when they “oppose[] any practice made 17 an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). “Courts have 18 interpreted ‘unlawful employment practices’ to include a panoply of actions involving 19 discrimination and sexual harassment.” Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 525– 20 26 (9th Cir. 1994). Because Title VII is liberally construed to “implement the 21 Congressional purpose of eliminating discrimination in employment,” Sias v. City 22 Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978), “[a]n employee need not 23 establish that the opposed conduct in fact violated the Act in order to establish a valid claim 24 of retaliation.” Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988). Protection 25 under Title VII’s “opposition clause . . . will be accorded whenever the opposition is based 26 on a ‘reasonable belief’ that the employer has engaged in an unlawful employment 27 practice.” E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983); see 28 also Maner v. Dignity Health, 9 F.4th 1114, 1127 (9th Cir. 2021) (“[O]ur precedents have 1 long recognized that the statute protects an employee who opposes employer conduct in 2 the mistaken but reasonable belief that the conduct is unlawful.”). 3 The parties dispute the proper legal standard for determining when an employee’s 4 belief that they were opposing an unlawful employment practice was reasonable. 5 Defendants urge the Court to follow Learned and find a reasonable belief exists only when 6 the conduct at issue “fairly fall[s] within the protection of Title VII.” Learned, 860 F.2d 7 at 932. Plaintiff, on the other hand, suggests the Court should follow Moyo v. Gomez, 32 8 F.3d 1382 (9th Cir. 1994), and find that “an erroneous belief . . . is reasonable . . . if 9 premised on” a good faith mistake of fact or law. Id. at 1385; Steinaker v. Sw. Airlines, 10 Co., 472 F. Supp. 3d 540, 557 (D. Ariz. 2020). The two standards are evidently in tension: 11 While under Learned, the conduct at issue must fairly fall under Title VII, under Moyo, 12 conduct “can fall outside Title VII so long as the plaintiff had limited knowledge and 13 simply made a mistake of law.” Maner, 350 F. Supp. 3d at 908. However, this Court is 14 not the first to be confronted with this issue. In Maner, the court considered both Learned 15 and Moyo, and concluded that it should follow Learned rather than Moyo for three specific 16 reasons: 17 First, the Ninth Circuit has instructed that the earlier case (Learned) controls over the later inconsistent case (Moyo) 18 because the panel that decided the later case had no authority to overrule Ninth Circuit precedent . . . Second, the inconsistent 19 statement in Moyo can be viewed as dictum because it was one of three different reasons the court gave for its ruling . . . Third, 20 no Ninth Circuit decision has cited Moyo for the proposition that mistakes of law can support a retaliation claim, while the 21 Ninth Circuit has reiterated Learned’s holding that complained-of conduct must “fairly fall” within Title VII to 22 constitute protected activity for purposes of a retaliation claim. 23 Id. at 909; see also Schneider v. Scottsdale Unified Sch. Dist. No. 48, No. CV-21-01521- 24 PHX-SPL, 2022 WL 901418, at *5 (D. Ariz. Mar. 28, 2022) (favorably citing Maner’s 25 analysis on this issue and finding Learned’s “fairly fall[s]” test controls under the Fair 26 Labor Standards Act’s substantially identical anti-retaliation provision). The Court finds 27 Maner’s discussion of this issue persuasive and will assess the reasonableness of Plaintiff’s 28 belief that he was opposing an employment practice made unlawful by Title VII by 1 determining whether the challenged conduct “fairly fall[s] within the protection of Title 2 VII.” Learned, 860 F.2d at 932. 3 Defendants do not argue that the alleged conduct of Mr. Wear would not give rise 4 to a duty on Plaintiff’s part to report under ASU training and policy. Rather, Defendants 5 argue that as neither Mr. Wear nor his victims were ASU employees, Plaintiff did not 6 engage in protected activity because Mr. Wear’s conduct did not fairly fall within Title VII. 7 Defendants contend that even if Plaintiff believed he was opposing an unlawful 8 employment practice, his belief was objectively unreasonable and not protected by the 9 statute. (Doc. 14 at 6); (Doc. 20 at 4.) Defendants’ argument lacks merit in this 10 circumstance. Even if Mr. Wear’s status as a non-employee makes his harassment not 11 subject to Title VII, there is no dispute that Plaintiff was required by ASU policy to report 12 all instances of sexual harassment. Id. ¶ 23. These trainings made no distinction between 13 “assaults involving employees, students, or other members of the ASU community.” Id. 14 Plaintiff alleges he was explicitly informed during these trainings that another prominent 15 donor had been reprimanded for “acting inappropriately towards women in the ASU 16 community.” Id. ¶ 24. The trainings also instructed Plaintiff that failure to report sexual 17 assault or harassment could result in his termination, but that he would be shielded from 18 retaliation for any reports he did make. Id. ¶ 26. It is, of course, appropriate for ASU to 19 require such reporting because under appropriate circumstances, which may have been 20 present here, ASU can be deemed to have ratified Mr. Wear’s conduct, thereby creating an 21 unlawful employment practice. (Doc. 15 at 12); see Freitag v. Ayers, 468 F.3d 528, 538 22 (9th Cir. 2006) (“[E]mployers are liable for harassing conduct by non-employees ‘where 23 the employer either ratifies or acquiesces in the harassment by not taking immediate and/or 24 corrective actions when it knew or should have known of the conduct.’” (quoting Folkerson 25 v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997))). 26 Mr. Wear, a prominent donor to ASU, was granted “nearly unrestricted access to 27 ASU athletics,” including sporting events, team practices, athletic facilities, and coaches’ 28 offices. (Doc. 13 ¶ 30.) Mr. Wear allegedly harassed Plaintiff’s wife at an ASU Men’s 1 Basketball game while sitting in an area restricted to “ASU staff, family, and prominent 2 donors.” Id. ¶ 31. At that same game, Mr. Wear allegedly harassed another woman. Id. 3 ¶ 28. The FAC also alleges that “on several occasions” Mr. Wear harassed a third victim 4 at ASU Men’s Basketball home games. Id. ¶ 29. While the FAC does not allege that Mr. 5 Wear, who was not an ASU employee, harassed any ASU employees, it plausibly alleges 6 that Mr. Wear’s prior incidents took place where ASU employees were present, and that 7 he had a pattern of harassing women in ASU-sponsored spaces. The FAC further alleges 8 that Plaintiff reported Mr. Wear’s conduct in part because of his concern for the safety of 9 the “ASU community,” a population which necessarily includes its employees. Id. ¶ 41. 10 Based on the foregoing, the FAC plausibly alleges that Plaintiff held a reasonable 11 belief that he was engaging in protected activity because the subject of his complaint fairly 12 falls within Title VII. Because Mr. Wear’s alleged conduct fairly falls within Title VII, 13 Plaintiff’s decision to report him to Mr. Anderson was reasonable and constitutes protected 14 activity for purposes of the motion to dismiss. 15 b. Adverse Employment Action 16 Because Plaintiff plausibly alleged that he engaged in protected activity, the Court 17 next considers whether Plaintiff was subjected to an adverse employment action. “[A]n 18 adverse employment action is adverse treatment that is reasonably likely to deter 19 employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1237 20 (9th Cir. 2000). To show an adverse employment action, “a plaintiff must show that a 21 reasonable employee would have found the challenged action materially adverse.” 22 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). “The requirement of 23 ‘material adversity’ is meant ‘to separate significant from trivial harms.’” Alozie v. Ariz. 24 Bd. of Regents, --- F. Supp. 3d ----, 2021 WL 5578857, at *6 (D. Ariz. Nov. 30, 2021) 25 (quoting Burlington N., 548 U.S. at 68). “Among those employment decisions that can 26 constitute an adverse employment action are termination, dissemination of a negative 27 employment reference, issuance of an undeserved negative performance review and refusal 28 to consider for promotion.” Brooks v. City of San Mateo, 229 F.3d 917, 928 & n.11 (9th 1 Cir. 2000) (collecting cases). 2 Plaintiff alleges that he was subject to several adverse employment actions after he 3 reported Mr. Wear’s conduct. Among others, the FAC alleges that in June 2019, Plaintiff 4 was relieved of his duties administering the swimming program, (Doc. 13 ¶ 63), Mr. 5 Anderson changed the structure of Plaintiff’s annual bonus to be completely at Mr. 6 Anderson’s discretion, id. ¶ 65, and Plaintiff was made a direct report of a man who had 7 expressed interest in firing him. Id. ¶ 66. The FAC also alleges Plaintiff was placed on 8 administrative leave after Mr. Anderson attempted to terminate him on August 15, 2019 9 because he “wasn’t ‘a team player’ or ‘cultural fit,’” and that Plaintiff was eventually 10 terminated by Mr. Anderson on December 13, 2019. Id. ¶ 70. Plaintiff has adequately 11 alleged that he was subject to an adverse employment action because he was terminated 12 and had his job responsibilities and compensation meaningfully altered. Brooks, 229 F.3d 13 at 928; Ray, 217 F.3d at 1244 (holding that reduction in pay qualifies as adverse 14 employment action); see also Foraker v. Apollo Grp., Inc., 427 F. Supp. 2d 936, 942 (D. 15 Ariz. 2006) (finding an adverse employment action when the plaintiff was stripped of job 16 responsibilities, lost his title, and was denied a promised salary increase). 17 c. Causation 18 A Title VII retaliation plaintiff must also prove “that the unlawful retaliation would 19 not have occurred in the absence of the alleged wrongful action or actions of the employer.” 20 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). “In other words, the 21 standard is but-for causation.” Alozie, 2021 WL 5578857, at *7. Causation may be inferred 22 by circumstantial evidence, including “the employer’s knowledge of the protected 23 activities and the proximity in time between the protected activity and the adverse action.” 24 Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011). Here, the FAC alleges that 25 Plaintiff reported his concerns about Mr. Wear to ASU officials on at least six occasions 26 between March and July 2019. (Doc 13 ¶¶ 33, 41, 43, 48–50.) As discussed above, 27 Plaintiff began experiencing adverse employment actions in June 2019. When Plaintiff 28 told Mr. Anderson he believed he was being retaliated against on August 12, 2019, Mr. 1 Anderson allegedly misstated when Plaintiff first made his report, asked why Plaintiff 2 didn’t “do anything” about it, and said that Plaintiff was not going to tell him “how or when 3 to ‘talk to a[n] [expletive] donor.’” Id. ¶ 67. Mr. Anderson’s first attempt to terminate 4 Plaintiff took place three days later, and Plaintiff was ultimately terminated on December 5 13. Id. ¶ 70. Mr. Anderson’s comments explicitly referencing Mr. Wear’s conduct in 6 relation to Plaintiff’s complaint, and Mr. Anderson’s attempt to terminate Plaintiff only 7 three days later, plausibly demonstrate that had Plaintiff not continued to press his 8 complaint about Mr. Wear—after Mr. Anderson allegedly had ignored it for several 9 months—he would not have been terminated. As such, the FAC adequately alleges a 10 causal link between Plaintiff’s protected activity and the adverse employment actions. 11 As Plaintiff has adequately alleged he was engaged in protected activity, suffered 12 an adverse employment action, and that a causal link existed between the two, he has 13 alleged a prima facie case of retaliation under Title VII. Defendants’ motion to dismiss his 14 first cause of action is denied. 15 2. Title IX 16 Title IX provides that “[n]o person in the United States shall, on the basis of sex, be 17 excluded from participation in, be denied the benefits of, or be subjected to discrimination 18 under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 19 § 1681(a). The Supreme Court has interpreted the statute’s prohibition on sex-based 20 discrimination to include “[r]etaliation against a person because that person has complained 21 of sex discrimination,” and that the statute’s private right of action encompasses actions 22 seeking damages for retaliation. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 23 (2005). Due to the similarity between the statutes, “Title IX’s protections [are construed] 24 consistently with those of Title VII.” Doe v. Snyder, 28 F.4th 103, 114 (9th Cir. 2022). 25 Consequently, claims for retaliation under Title IX are governed by the same framework 26 as Title VII: the plaintiff must show “(a) that he or she was engaged in protected activity, 27 (b) that he or she suffered an adverse action, and (c) that there was a causal link between 28 the two.” Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2012). 1 As the parties appear to agree that the second and third prongs overlap entirely with 2 the Title VII analysis, the Court incorporates and adopts its Title VII analysis for purposes 3 of the Title IX retaliation claim on these issues. (Doc. 14 at 9); (Doc. 15 at 15.) Therefore, 4 the central issue is whether Plaintiff engaged in protected activity under Title IX when he 5 reported Mr. Wear’s conduct to Mr. Anderson and other ASU officials. As in Title VII, 6 opposition may constitute protected activity if the complainant reasonably believed the 7 conduct at issue was unlawful. See Grabowski v. Ariz. Bd. of Regents, No. CV-19-00460- 8 TUC-SHR, 2022 WL 1128936, at *3 (D. Ariz. Apr. 15, 2022). Consequently, the inquiry 9 is the same as above: Whether Mr. Wear’s conduct fairly fell within the scope of Title IX. 10 Title IX’s prohibition against gender discrimination in education protects students 11 and employees of the educational institution. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 12 540 (1982). Here, the FAC alleges that Mr. Wear engaged in a pattern of sexual harassment 13 while at ASU athletic events where both students and employees were present, and that he 14 had nearly unrestricted access to ASU athletic facilities. Plaintiff’s complaints about Mr. 15 Wear’s conduct were therefore aimed at not only seeking redress for Mr. Wear’s actions 16 against the three existing victims, but also to protect other members of the ASU 17 community—including both students and employees—from future harassment. For 18 purposes of the present motion, Plaintiff has adequately alleged that he engaged in 19 protected activity because he reasonably believed he was reporting conduct prohibited by 20 Title IX. 21 C. Non-Jural Entity 22 Finally, Defendants move to dismiss ASU from the FAC as it is a non-jural entity 23 under Arizona law and not subject to suit. In Arizona, a governmental agency may only 24 be sued if the “statutes creating the entity . . . provide the agency with the power to sue and 25 be sued.” Lazarescu v. Ariz. State Univ., 230 F.R.D. 596, 601 (D. Ariz. 2005); Kimball v. 26 Shofstall, 17 Ariz. App. 11, 13, 494 P.2d 1357, 1359 (Ct. App. 1972). Ariz. Rev. Stat. 27 § 15-1601 authorizes ABOR “to create and maintain ASU, but contains no indication that 28 ASU . . . may be sued.” Krist v. Arizona, No. CV17-2524 PHX DGC, 2018 WL 1570260, 1] at *2 (D. Ariz. Mar. 30, 2018). On the other hand, Ariz. Rev. Stat. § 15-1625 expressly || provides that that ABOR is to exercise “jurisdiction and control over the universities” and 3|| may “sue and be sued.” Ariz. Rev. Stat. § 15-1625. “The effect of Arizona Revised Statutes §§ 15-1601 and 15-1625 is clear. [ASU] cannot be subject to suit because the || Arizona Legislature has not so provided. However, [ABOR] is an entity subject to suit 6 || pursuant to § 15-1625.” Lazarescu, 230 F.R.D. at 601. As ASU is not properly subject to □□ suit, Plaintiff's complaint against ASU is dismissed. 8 CONCLUSION 9 For the foregoing reasons, Defendants’ motion to dismiss is granted in part and 10 || denied in part. As it is not subject to suit, ASU is dismissed from the action. Plaintiff’s 11 |} state law claim is time barred and dismissed with leave to amend should Plaintiff wish to plead additional facts supporting equitable tolling on the AEPA claim. Plaintiffs Title VI 13 || and Title IX claims remain. 14 IT IS THEREFORE ORDERED that Defendants’ 12(b)(6) Motion to Dismiss 15} First Amended Complaint (Doc. 14) is GRANTED in part and DENIED in part. 16 IT IS FURTHER ORDERED that the Clerk of Court shall dismiss Defendant 17 || Arizona State University from the action with prejudice. 18 IT IS FURTHER ORDERED granting Plaintiff leave to amend his complaint in a || manner consistent with this Order. Plaintiff will have thirty days from the date of this order to file a Second Amended Complaint. 21 Dated this 31st day of May, 2022. 22 “) 23 Hrsg Sod 4 Chief United States District Judge 25 26 27 28
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